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Criminal Law

Spring 2002

I. Criminal Law
Part 1 of Course: Criminal Law
Definition of crimes & defenses – what is a crime, what’s not a crime.


1. Why punish criminally? What are the purposes of criminal liability?
Illustrated through Dudley & Stephens – the English Cannibalism case (4 men stuck at sea for 20
days w/ no food or water, they kill and eat one (the boy))

A. Retribution Theory
- Punish b/c it’s morally right to punish criminals
- Drws the line between bad and VERY bad. Not just right/wrong.
B. Utilitarian Goals
- Deterrence theory
- What are deterrents?
- Stigma of being a criminal. => CHEAP. BUT, if it doesn’t reflect what society
really thinks is reprehensible, then it loses its deterrence effect. Evidence show:
people abide by the law when they respect it (it’s perceived as legitimate)
- Take away liberty (incarceration) => $$$
- Fines/take property (less common today)
- Death => $$$$$
Purposes of Punishment.doc

Play between deterrence value of stigma v. incarceration. Likely, stigma has declined as
incarceration has risen, over past 20 years.

2. Questions to ask about the criminal law system:

• How much conduct is enough? (Act v. Omission)
• What mental state ought to be required to send someone to prison? (Conduct v.
• What is the relationship between intent and motive? (Why does intent have
• When should accomplices/conspirators be held criminally liable? (Act v. Omission)
• If conditions for liability are satisfied, when should you give people a defense?
3. Role of discretion.
Prosecutors = gatekeepers, they are not paid to bring cases & decide WHEN to bring cases.
So, 2 things going on in every case:
(1) The caselaw
(2) The custom – what decides when cops arrest or when prosecutors prosecute? GOES TO
THEORY – theory is practical in criminal law. A big part of the job is convincing a
prosecutor why it’s unfair/wrong to bring a case against your client. Tell the good story.

* Strategies for arguing:

(1) Argue the law: LEGAL reasons why your client is guilty/not guilty (the statute is not
satisfied, etc) – on the basis of the facts
(2) Argue the rationale/precedent/policy/consequences: Why would X conclusion be a
good thing or bad thing socially. What are the larger or longer-term consequences.
(3) SCOPE – where/what point are you focused on. How do your arguments change if
you draw the line in a different place? EG: back up in time (for sequence of actions).


3 Components of criminal liability

• Actus reus (the criminal act, conduct)
 note: MPC has a minimum requirement for
• Mens rea (the criminal state of mind, intent)
• Absence of exculpatory defense/justification/excuse

1. ACTS: Omissions & Requirements of a criminal act:

(a) Act
Must have a voluntary act or qualifying omission in order to have a crime. (Voluntary – just
means that if the police literally make you do something, then it’ not voluntary). Conduct is
important  need to find affirmative physical actions.

(b) Omissions as a basis for imposing criminal liability [LB 85-98]

No criminal liability for failing to act (omission) except when provided by law.
Same for MPC and at CL

Arguing omissions cases: (1) Focus on the choice – frame the choice in your light, what one can
infer from the facts. (2) Tie it back to the doctrine & one of the specific categories imposing
legal duty.

• INTENT: in many ways, this line goes to INTENT. What can you infer (in terms of
mental activity) from the act OR omission? Can you get inside the criminal’s mind? The
omission may provide key insight as to intent, hence, the omission really must be voluntary.

Doctrine: When does an omission qualify?

(a) Contractual duty (employment responsibilities of lifeguard)
(b) Statute imposes a legal duty (driver has to stop & help when causes accident)
(c) Take people away from the possibility of being rescued (e.g. People v. Oliver, somewhat in
(d) Special relationship (child, caretaker, spouse)
Twists: Assisted dying/failure to prevent death
Commonwealth v. Konz (PA 1979)
Facts & Procedural Posture: David Konz, a diabetic, vowed to stop taking insulin & let
God heal him of diabetes. Later, after he began suffering from insulin debt, he tried to take
insulin but was prevented from doing so by wife (Dorothy Konz) & friend Stephen Erikson.
They also prevented him from seeking medical assistance and failed to seek medical advice
or aid for him. Konz & Erikson were found guilty of involuntary manslaughter but were
granted post-trial motions for arrest of judgment. Commonwealth appealed, seeking
reinstatement of the verdict. The court considered the evidence in the light most favorable to
the appelant (Commonwealth).

Issue: Is framed in terms of duty to act – did wife have a duty to care for her husband,
specifically a duty to obtain medical attention for Konz when it became apparent that he was
suffering from insulin debt? Holding: Yes. One spouse owes the other a duty to summon
medical aid when the other is in a condition necessitating the need for immediate medical
attention. Moreover, since Erikson was an accomplice, his culpability = Mrs. Konz’s.
Furthermore, there is sufficient evidence to establish proximate cause. Here, the court finds
that a duty of a spouse to obtain medical assistance for her husband is imposed by law.

How would Stuntz argue it for D? Switch focus – not did wife chose to let H. die. Rather,
H chose to stop taking insulin, wife just repected that choice. Doesn’t matter whether she
intended to let him die or not.

(1) People v. Robbins (NYS 1981): similar facts (except there was no active prevention of
her from taking insulin) – but court dismissed indictments against the husband of deceased
and the preacher who convinced her to forgo insulin. The court recognized a duty to provide
medical care for one’s spouse, but not when a competent adult has made a rational decision to
eschew medical assistance. (note: this should have been the real focus of the debate in Konz)
Ct. said that such a rationale would be in direct conflict with the related rule that an adult has
a right to determine not to undergo medical treatment.

BOTH SAY: Omission = criminal liability ONLY WHEN there is a legal duty to act. Mere
moral obligation isn’t enough. Failure to act suffices for criminal liability only when it
breaches a legal duty imposed by the statute itself OR other sources of law (including
common law).

Failure to summon medical assistance for drug overdose:

People v. Beardsley (1907) supp p. 3-7

Mistress did drugs while staying in defendant’s home (known to him (he saw her do it) but
without his consent). On appeal, court found that D had no legal duty to render reasonable
care for her. The prosecutor urged that D had acted as her “natural guardian and protector”
during the time she was in his home, and sought to impose a similar duty on him as he would
have to a spouse to render reasonable care. The court rejected that a special relationship
imposed a duty in this case.

What choice can you infer? He at least arranged for help, didn’t leaver her for dead.
Doctrinally, SECLUSION would be the best argument for the Government. Need more info,
but you can argue that he secluded her from help.
People v. Oliver (1989)
Defendant brought Carlos, whom she met in a bar and was already drunk, back to her room.
He did heroine (known to but not with her) and passed out, she left him there, left the apt.,
came back later, hauled him outside and left him outside overnight. The court found that she
did have a duty to prevent him from harming himself, created when she took charge of him
by taking him from a public place (where others could render aid) to her private home.

Duty to provide sustenance

D was living with her aunt (who paid for everything). The aunt got sick with gangrene &
became incapacitated, could no longer feed/care for herself. D kept accepting food &
talking to neighbors, but didn’t giver her aunt any food, get her medical attention, or alert
the neighbors as to her condition. She died and was found in the apt. approximately 4-7
days later.

Court held that she had a legal duty to provide food, procure medical attention for, or
notify someone of her aunt’s gangrene. Evidence proved that she had even spoken with
neighbors around the time her aunt was close to death but failed to mention her condition.

Causation? The court says that, by not feeding/getting med assistance she at least sped
up her death (& may have caused it), even if the aunt would have died anyway.

Jones v US (1962)
D, who was entrusted with the care of two infants but not contractually bound to look
after them AND was not their actual parent, the jury did not find that he had a legal duty
to care for the child. Without a verdict to indicate that the jury found such a duty, the
court wouldn’t impose one. * Turns on – no duty b/c no contract or other type of
relationship giving rise to duty (maybe have choice, but doesn’t fit in doctrine)

General Duty to rescue – fodder for hypotheticals. In real world, Stunz thinks duty case
would turn into a question of whether it looks more like Instan or innocent passerby case.

(c) Requirement of a Voluntary Act [LB 106-113]

1) When is an act “voluntary”? Classical definition: voluntary act is one that results from an
exercise of the will. However, it is generally defined in terms of acts that are NOT voluntary.
• Physically coerced movement
• Reflex movements
• Paralysis/Seizures arising from diseases – with limits below
• Unconsciousness
2) Forms of impaired consciousness
The link between mind an body remains but is sufficiently attenuated to preclude criminal
responsibility, such as:
• Concussion
• Somnambulism
• Hypoglycemia – although courts are not confident yet about the effect of
hypoglycemia on control over one’s conduct. This may be a condition that “lowers” a
person’s threshold for aggressive behavior but is not sufficient to render the conduct
3) IF an involuntary act is embedded in an otherwise voluntary course of conduct, you
may still be liable (e.g. driving a car when you know you are epileptic, driving drunk).
• Is drug addition an “involuntary act”? Can you disclaim liability for actions that
result from being addicted to drugs/alcohol? See Robinson v. California (yes, convicting
someone for simply being addicted to drugs violates 8th amendment against cruel and
unusual punishment – criminal penalties may follow only when someone has committed
an act, engaged in some behavior, not just “being” addicted to drugs).
• But was limited in Powell v. Texas (being a chronic alcoholic doesn’t get you off the
hook for driving drunk). (1) Court changed the scope of focus – at some point there is a
voluntary act (1st drink, first several drinks) (2) Too difficult to tell which types of
addiction are truly “addictive” in the sense that they compel someone to drink/smoke/do
heroine. Particularly with alcohol there is plenty of evidence that people can quit.

2. Mens Rea & Criminal Intent

(a) Mens Rea Menu

1) Mens rea = “The act is not guilty unless the mind is guilty”
Historical move from liability based on harm caused (strict criminal liability) to modern
liability based on intent at the time – the D’s state of mind at the time of the crime (menu).
With criminal law, it’s not one “reasonableness” standard, rather, there is a list of possible
standards, courts over time have chosen crime-by-crime what the right standard is.

Note, in general, crimes have been set forth in statutes (codified), but mostly have been
defined in terms of requisite conduct, with little said about intent (look to CL for requisite
intent). NOT true of MPC  MPC thoroughly set forth both conduct and intent (shifted
power from judges to legislatures).

 P. 117 lots of words used to describe the required state of mind for a criminal
offense. Can’t be taken literally, must be interpreted in light of the situation.
 Move from general to specific intent. Eg “malice” – does it mean general
“wickedness” OR something more? Today, courts have moved toward a more focused
state of mind.
 Requiring intent is a way for requiring the government to have to prove conduct.

2) The menu:
Choices for mens rea:
(a) Strict liability (NO mens rea) E.G., speeding. One place where you really can
reliably infer culpability just from the action. All plausible claims about your
mental state are bad. Also statutory rape (historically, this was more clear b/c
age was 10 or 12, was not exculpatory to say you thought she was 11 not 10).
Generally, though, it’s rejected  rare to define conduct sufficiently that it
separates the bad from the really bad, hence, you need to prove INTENT.
(b) Holmes: simple negligence (torts). Reasonable person standard. What would
have happened if this were sufficient? Basically, there would be too many
criminals in the world (all people in car accidents would be drivers); would
diminish the stigmatizing effect from criminalization, including the marginal
impacts for worse crimes (over-using “moralism” decreases its impact); and
would overdeter some things (like driving).
(c) General intent  intent to be “bad” (Prosecutor in Faulkner). Generally
rejected, but FELONY MURDER is one place where this persists. Why?
Deterrence would be “off”
(d) Intent or Recklessness  intent to cause the specific harm OR recklessness gets
you criminal liability (foresight + indifference), but not mere “wickedness”
(Cunningham App. Ct.). Recklessness involves actual foresight.
(e) Specific Intent. Purposeful, not just foresight. (Morissette). Eg, theft. Generally
limited to a small list of crimes.

DIFFERNCE between general intent & specific intent.

A. Specific intent = indicates that a crime requires a particular state of mind that is
included in the definition of the crime. I.e. stealing in Morissette requires “felonious
intent” not mere blameworthiness. D is actually seeking to accomplish the crime in
B. General intent = default intent standard – the minimum level of blameworthiness
required for criminal punishment. Usually described in its application to defenses,
such as “mistake of fact” rather than the crimes.

 the standards make G tell a different conduct story.

 Cts have converged on a mix of b, c, d.

Regina v. Faulkner (Ireland 1877)

BG: Seaman stole rum on a ship, while doing so he lit a match to better see and caused a fire that
ruined the ship. Trial judge said the requirement of “felonious intent” was satisfied through his
general malicious and “wicked” act of stealing the rum.

ISSUE: Did his “general” intent to act maliciously satisfy the intent requirement?

Holding: NO. p. 115 – 3 opinions disagree on why, but generally they all deemed that “intent”
could be satisfied if he knew or should have foreseen the consequences of his act (either the
initial stealing OR, as the 3rd opinion suggests, the lighting of the match would suffice b/c done
within the context of a criminal act). But, generally, burning the boat is not a probable or even
foreseeable consequence of stealing a bit of rum.

Regina v. Cunningham (England 1957)

BG: Defendant ripped out a gas meter (which he admitted to and was convicted for), causing gas
to seep into the adjoining apt. and “endanger the life” of Mrs. Wade. Trial court imputed “intent”
to harm Mrs Wade (intent is required under the statute – “unlawfully and maliciously
administer”) from the intent to unlawfully and maliciously steal the meter in the first place.
Specifically, the judge says the criminal need not intend the poison to be taken, but rather, by his
unlawful and malicious act causes it to be taken.

Issue: (1) Is malice to be taken in a vague/general sense (i.e. “wickedness”) or does it have a
more specific and directed meaning? (Is “malice” as to asphyixiation imputed by “malice” from
stealing the gas meter in the first place?) (2) What is standard of “intent” is required for criminal
liability for D?

Holding: p. 123 – Malice requires an actual intention to do the particular harm that was in fact
done OR recklessness as to whether such harm should occur (foresees the harm yet takes the risk
of it – i.e. “this could kill you but I don’t much care either way”). Ill-will towards the person
injured (ie MOTIVE?) is not required, but foreseeability IS (foreseeability imputes the intent).
“In our opinion, the word ‘maliciously’ in a statutory crime postulates foresight of consequence.”
=> Thus, his “malice” arising from stealing the meter in the first place is not enough for criminal
liability as to the consequential harm.
The court says that the JURY must decide whether the D foresaw that removing the gas meter
might cause injury to someone but nevertheless removed it.

Morissette v. United States (S.Ct. 1952)

Facts: D took spent bomb casings from US property and resold them as scrap iron for $84.00. D
knew he was on govn’t land when he took the casings but claimed that he believed they were
abandoned, unwanted, and considered of no value to the government. Trial Ct. convicted D &
Appellate Ct. affirmed on the basis that “intent” was imputed to him through his intentionally
entering onto government property and intentionally taking the casings. “The question is whether
he intended to take the property. He did intend to take (and in fact did take) the property.” D’s
counsel argued that “intent” referred to “felonious intent,” not simply intent to take the property,
and that he did not have “felonious intent” because he believed the property was abandoned (and
as such did not believe he was depriving another of his property).
S.Ct. reversed.

Rules from Morissette:

(1) Intent is inherent in the idea of the offense & is a required element for the offense. Congress
did not write it into the statute because it recognized that intent is inherent in this class of
offense. (Stealing, larceny, and equivalents like conversion). “Where Congress borrows
terms of art…” [p. 127.8].
(2) Conversion is not a new/different offense, it is meant to fill the gaps between the range of
activities under which one may be convicted for taking another’s property – stealing,
embezzlement, etc. Thus, it retains the “intent” requirement.
(3) “Intent” in this case means – criminal intent to steal or knowingly convert, to wrongfully
deprive another of possession of property. In this case, he may have been mistaken (for jury
to decide), if so, that may negate criminal intent. => The conduct does not impute the intent
– a jury could believe that he honestly believed the property was abandoned.

Specific versus General intent: p.133

General intent – an inference of general criminal intent is raised by the conduct alone – the
actus rea is sufficient to support an inference of intent. (Honest & Reasonable mistakes of
fact negate)
Specific intent – if a crime requires a certain state of mind (intent) then the act alone may not
support an inference of mens rea, particularly if D was mistaken (or possibly no
foreseeability as in Cummins) (Honest mistakes can negate)

• e.g.: The rationale for mens rea in theft: requires an intent to effect a permanent
deprivation of property. INTENT TO COMMIT THE CRIME, not just the act of taking
something. Choice 1 – you take something, then = theft. BUT, momentary loss of
property or conveyance of property through messengers would leave them vulnerable to
“stealing” and is not what punishment for “stealing” is intended to guard against. Choice
2 – wait til end of person’s life or a “long” deprivation then charge (i.e. wait til the
conduct literally satisfies the definition of the crime). Not satisfactory either, not
practical and the property could be damaged/used up. Choice 3 use “intent” as a proxy –
punish the attempt to permanently deprive one of his property, that he thief would have
retained the stolen goods. THUS, the crime doesn’t require mere intent to deprive one of
his property, but the specific intention to permanently deprive one of his property. So,
the act of taking the property alone isn’t enough to automatically impute the specific
intent – jury has to decide if D had the mens rea.

(b) Model Penal Code [137]

Law reform movement in 1950s, source of normative arguments.
Weschler’s goals:
(1) Get rid of “content-less” ideas like “wickedness” and “malice”
* Break crimes down into component parts, apply the “right” mens rea term to each
(2) Shift power from judged/courts to legislatures

1) The Actus Reus

The starting point under model penal code is the criminal act. The definition of the offense
determines the elements of the required criminal act. Elements are classified as “conduct”
“circumstances” and “results.”

Conduct: the acts or omissions required to commit an offense. May be general or very
specific – i.e. murder, the entire universe of conduct leading to another’s death satisfies the
conduct requirement while for burglary you need “taking.”

Circumstance: external facts that must exist in order for the crime to be committed. EG:
property must belong to another.

Result: any consequences of defendant’s conduct that are incorporated into the definition of
the offense. Eg: death for murder. Implies causal relation is required between D’s conduct
and the prohibited result.

2) The Mens Rea

Assumes that four culpability concepts (alone) are both necessary and sufficient to define
criminal offense. They stay true to common usage (P.142)
• “purpose” – conscious object, trying
• “knowledge” – aware of “practical certainty” or high probablity
• “recklessness” – conscious disregard for risk. NG + foresight
• “negligence.” – a bit more than in civil law, gross deviation of the standard
of care
(1) 2.02(3) – Recklessness is default standard (if no term mentioned in crime). – an
important normative proposition.
(2) 2.02(4) – if ONE mens rea term attached to one element of crime, that standard attaches
to all elements. NOTE: the mens rea term must be mentioned in reference to one of the
elements of the crime, however, not generally. SEE EXAMPLE p. 148.
 Isolate the actus reus elements of the offense.
 THEN, ask if there are any words in the offense establishing a mens rea
 IF other terms seem applicable, they may actually be describing an additional
objective or motive that must accompany the defendant’s conduct, if there is a
“higher” mens rea standard attached to the additional motive it does NOT propogate
through and attach to the elements of the crime.

(3) NOTE: there may be additional mens rea components required by the definition of the
offense, such as with theft. How do you tell?
 Do this by asking what terms of the statute require the government to prove any
facts about Ds behavior or outside world but NOT facts about what was going on in
his head. What are the external facts?
 Then, if another phrase defines a free-floating mental state, not attached to any
conduct, then it’s an additional motive.
(And, look for commas)

EG larceny:
“taking and carrying away” -- did this conduct occur? What culpability term applies?
“the personal property of another” -- did these circumstances occur? What culpability term
“with intent to effect a permanent deprivation” – was this additional, specified intent present?

3) Is there a role for “wicked” and “malice”

idea about the 2 ladders: MPC ladder and CL/Hand Formula Ladder

MPC: emphasizes the cognitive  says PURPOSE is always worse than KNOWLEDGE.
Focuses on the degree of awareness, intentionality; it’s essentially subjective.

Hand formula emphasizes the VALUE you place on things, i.e. “wicked” and “malicious” and
“evil mind” are on the value ladder. A mind that doesn’t attach value to the life being taken more
be MORE evil. It’s external to what’s going on in Ds head, it’s more objective. Take a standard
of proper behavior and judge how far below it Ds conduct falls.

These ladders are sometimes in conflict (e.g., husband kills wife with cancer (probably terminal)
vs. guy who sprays gas station with bullets & happens to hit a bystander.
Common law – fuzzes the choice, doesn’t clearly pick either.
Death penalty cases? Tend to correlate more with the Hand formula, not the culpability ladder.
(notes 2/6/02)  eg, gas-station spraying guy is farther up the hand ladder, but lower in the MPC
ladder than guy who kills wife. BUT, the gas station guy gets the death penalty, not husband.

3. Mistakes of Law/Mistakes of Fact


Easy version of mistakes of fact – it’s a matter of rhetoric, used to negate G’s proof that the D had
the requisite intent. The Cts talk about the arguments as if they are two distinct issues (did he
have intent? then, did he make a mistake of fact?) In reality, though, they are one issue. What’s
going on is that a claim of mistake amounts to a claim against the mens rea. But, the CL applied
separate standards/rules to each type of mistake

Specifics of the defense:

General Intent: IF offense requires only general intent, then a mistake of fact is a defense
ONLY IF it’s an “honest and reasonable” mistake – reasonable under the circumstances (D
has to prove he wasn’t negligent in making the mistake).

Specific Intent: IF offense requires specific intent, then a mistake of fact is a defense if it was
ACTUALLY (“honestly”) made, regardless of whether it is reasonable.

General intent elements of specific intent crimes: If the mistake was relevant to an element
of the offense other than specific intent, the courts followed the specific intent rule.
Specific-Intent crime: Green v. State. guy killed hogs in the woods, the hogs belonged to
someone else. He claimed that he thought they were his. General intent (to kill the hogs) is
satisfied, but jury could find, if he actually thought the hogs were his, that he lacked specific
intent to permanently deprive another of his property.

General -- State v. Walker: Dad and Grampa abducted boy, girl who they thought were the
Dad’s kids. The girl wasn’t – when they realized it they dropped her back off at school.
Abduction is a general intent crime – just the act of taking a kid is enough, no specific intent
required. SO, D has to prove that the mistake was an honest and reasonable one – that D was
not negligent in making the mistake -- “in order to negate criminal intent, the mistake under
which the defendant was acting must have been made in good faith and with due care.”
Culpable negligence could be enough to impute intent – if they were honestly mistaken but
shouldn’t have been but for the exercise of due care, then intent is imputed.

General elements of specific intent crimes– US v. Yermian. Yermian lied on security

clearance forms – 2 aspects of the offense. First, knowingly and wilfully making false
statements – these require specific intent. Second, was that the false statements involve a
matter within the jurisdiction of the US – these require general intent. So, in order to use
mistake as a defense, Yermian had to show not only that he actually did NOT know that the
information would be submitted to govn’t agency, but rather that it was “honest AND
reasonable” ~~ negligence standard, if he “knew or should have known” that the statements
would be submitted to govn’t then he was criminally liable.
HOW DOES THE STATUTE ITSELF imply which is gen/specific

The GAP:
Prosecutor has to prove:
Specific intent – either purpose or knowledge
General intent – recklessness.

What does D have

HONEST – non-reckless (b/c you have to get to purpose or knowledge)
Honest & Reasonable  not negligent (b/c you have to get to recklessness mens rea)

Why is the gap there? The gap is fudged by judges – either they require you to PROVE your defense,
OR they can just say that the Prosecution simply hasn’t PROVEN its required mens rea.


Generally speaking, criminal liability does not depend on the actor’s awareness of the criminality
of conduct, thus mistake is not a defense. THE MAXIM: “Ignorance of the law is no excuse.”
1. Ignorance or Mistake of Criminality (Criminal Law)
State v. Fox (Idaho S.Ct. 1993)
Fox – ordered 100,000 pills online, in violation of State Statute. Should it be exculpatory that
Fox didn’t know the law? In this case, it’s easy to see that he really DID know the law, knew
that what he was doing was wrong (malum in se). It’s a laughable argument for him to say
that he didn’t know what he was doing was “wrong” even if he really didn’t know it was
technically illegal.

People v. Marrero
D, a federal corrections officer, was carrying his gun (loaded) on him in a club. Trial court
let him off b/c the law under which D was indicted was ambiguous, but the appellate court
held that the intent of the law was to allow officers possession only when duly related or
authorized by law. He was convicted at the remanded trial.

Problems with the Maxim: Is this maxim unfair?

Justifications for it: “everyone is presumed to know the law”
• Foundations – laws were “mala in se,” or laws that accorded with the innate sense of
right and wrong. D can’t get off b/c he doesn’t know the type/name of law he’s breaking.
At one time, it may have been a fair presumption that everyone knows the law.
• Also – judges didn’t want to hear it from Ds – didn’t want to allow added excuse.
• Modern laws define a lot of laws that are not mala in se but only mala prohibita. It’s
a fiction to assume that everyone knows the law. How can you explain the maximum
under the modern situation.
 Note: generally, criminal law is about drawing the line not just between right
& wrong, but between wrong and REALLY WRONG. The CL of crimes fits this
description, but statutory crimes are not always obviously bad
 BUT, Crim Law provides a vast amount of DISCRETION through
prosecutors, which can alleviate an otherwise harsh/socially problematic strict
mistake of law maxim.

Hopkins v. State
Signs prohibited advertising marriage – Hopkins consulted the state’s attorney’s office and
was told his signs were okay, few years later he was indicted.

State v. Striggles
Distributors of machines got certification from a municipal court that the machines were not
gambling devices and sold them to Defendant, who placed them in his restaurant. The state
supreme court later decided they were gambling devices and convicted D for having the
machine on his premises.

=> These last cases: why are they right? (1) if something is a borderline case, then if you let
someone off b/c he sought counsel, it makes the lawyers the arbiters of the law, not the
judges. I.e., there is no room for individual interpretation b/c it would amount to statements
about the law and subjectivity in the application of the law. “Whenever D thought the law
was thus and so, he would be treated as if the law were thus and so, i.e. the law actually is so
and so.”
2. Mistakes of Non-Criminal Law
Morrissette’s other claim
Could have said that he made a mistake about the law of property  abandonment (thought
property was abandoned, mistaken because under Plaw G can’t abandon property. AS
PROSECUTOR, though, you say that he was in fact mistaken about WHO property belonged
to (US), thus, it was a mistake of CRIMINAL LAW.

No determinacy about the categories, no analytic formula, it’s a SHELL game. Generally it’s
a normative instinct that determines the outcome. Especially if the governing legal rule can
be located inside OR outside of the criminal code.

 all mistake of law cases turn into classification arguments. Does 2.04(1)(a) OR
2.02(9) govern your situation (mistakes of fact/non criminal law VS mistake of criminal law)?
 2.02(9) mistakes about criminality are no defense.
 2.04(1)(a) mistake of fact or law is a defense if it negates mens rea.
 2.04(3) mistakes of law are a defense if D relied on an official statement.


United States v. Freed (US 1971)

Good lawyering: basically, freed was faced with the maxim: ignorance of the law is no
excuse (he failed to register hand grenades he purchases – or, more accurately, failed to see if
they had previously been registered). So, they stepped back & re-framed the issue in terms of
intent  went back to the first principles of the mens rea requirement. Freed lost, but the
lawyers won a doctrinal victory.

Majority: says this is a regulatory measure in the interest of public safety, no mens rea
required (no specific intent/knowledge).
Concurrence says, I agree, but for a different reason. Established that, “the existence of mens
rea is the rule or, rather than the exception to principles of anglo-american criminal
jurisprudence.” He looks at the common law foundations of the hand-grenades law, says it
has no mens rea requirement.

WHAT DOES FREED SAY?  if it’s a regulatory offense, then no mens rea required.

Federal Mens Rea is default of knowledge:

Criminal intent requires knowledge of all facts and all legal rules necessary to establish
culpability, except for offenses involving the public safety or health (“just regulatory
offenses.”) If something is a FEDERAL offense, then the mens rea is knowledge of all facts
& legal rules necessary. UNLESS it is a public health/safety/regulatory law for which there
is no mens rea requirement.

Litigation tactic is sorting: get your offense on one side or the other. Say it’s NOT just a
regulatory matter (can do this by focusing on penalties: if jail time, then there should be a
mens rea requirement) and that your client didn’t have all of the facts and rules necessary to
establish culpability.

=> default is, knowingly is the requisite mens rea. Strong presumption in favor of a mens rea
requirement. BUT, G can argue that this is just a public welfare/regulatory law. SO: if you
take Staples & Excitement together, you have to work pretty hard to get rid of mens rea 
you really have to prove that “knowingly” is not a required element.

4. Summary:
• Mistake of FACT that negates a required mens rea is a defense
 frequently exculpatory but not always, especially not if the conduct elements of a
crime are defined with sufficient precision (speeding)
• Ignorance or mistake as to the existence, scope, or meaning of the criminal law is not
a defense to crime.
 Fine line: Try to place the mistake out side of the substantive criminal code,
inside the procedure code. Might not work b/c it’s still in the CRIMINAL code.
• 3rd kind of mistake – mistake as to relevant non-criminal law (shell game to make it
seem like a mistake of non-criminal law)
 sometimes exculpatory, sometimes not. Idea is, suppose a crime is defined by
very bad conduct within a subset of very bad conduct: you don’t get off. BUT, if the
crime is defined more as a sorting-game, then you might have a defense. Try to place
the mistake within another area of law (property, etc).
 If you are G and it’s determined that mens rea IS required, then  go to malum in
se. This is something that D knew was really wrong, even if he may not have known
it was technically illegal
• Federal mens rea: includes idea of federal mens rea. Trying to argue that this crime
is one for which the G DOES (DOES NOT IF G) require mens rea. If mens rea is
required, then D must have knowledge of all relevant facts & legal rules necessary to
establish culpability. G will argue that this is a regulatory/public welfare offense for
which NO mens rea element is required & in fact they look like strict liability (even
mistakes of fact are not exculpatory for regulatory matters).

5. Intoxication
Intoxication is never a defense to a crime, Q is, is evidence of intoxication going to be admissible
for the purpose of negating mens rea? (note: G can always introduce evidence of intoxication if it
helps its case, so it only matters in assault, rape, and homocide)
General intent crimes: intoxication is not relevant/admissible to negate intent
Specific intent crimes: (doesn’t arise much) Relevant to show lack of capacity to form the
2.08(2): intoxication is not relevent/admissible to negate recklessness (& hence NG)
2.08(1): intox is relevant to negate intent for mens rea standards higher than recklessness.

Why? Policy argument  D’s would structure their conduct so as to avoid criminal liability (get
drunk THEN murder). Couldn’t keep the rule a secret.


Attempt, Complicity, Conspiracy. Note: lesser crime of conspiracy is included in attempt.

1. Attempt
A. Rules governing requisite CONDUCT:
(1) Completed conduct cases:
CL = complete but not legally impossible. You did everything necessary to complete the
crime but failed to complete it (shoot but miss)
MPC = complete under the circumstances as D believed them to be (would be a crime if
the circumstances were as D believed). 5.01(1)(a) & (b).
(2) Incomplete conduct case:
CL: Proximity tests – focuses on what’s left to be done to complete the crime. P225.
Tries to make sure D has “done enough” to gain criminal liability. What would a
confession get you? Nothing – the conduct itself has to prove the intent, thus, it
reduces the incentive to do an interrogation. Devalues D’s testimony. This is more
of a res ipsa type test.

MPC: “Substantial step” or “strongly corroborative” 5.01(1)(c) & (2) – focuses on what
acts D has completed in the commission of the crime. This significantly broadens
liability for attempt (p.229). Especially in light of CONFESSIONS – if you get a
confession, then it will get you a conviction for attempt.

=> Thus, your view on CL vs MPC law of attempt may turn on your view of Miranda and
police interrogation.

People v. Bowen & Rowles

Do have to find an OVERT ACT – jury cannot find that the entry into D’s house was
sufficient to find intent to commit larceny sufficient to convict of attempt. D may not be
convicted of an attempt unless he has “gone beyond acts of an ambiguous nature” or those
that are “equivocal.” IT is important not to let the definition become circular. Entry into a
house, alone, may be sufficient if it’s without permission of D is armed with burglary tools.
In this case, Ds engaged in other acts (ransacked the bedroom) that WERE sufficient to find
attempt. But entering the house, alone, wasn’t enough.

B. Rules governing INTENT (mens rea)

Can only have attempt as to a specific-intent crime. So, the result in Thomas is wrong – you
cannot attempt “reckless manslaughter” – you cannot attempt to be “reckless.” You can be
guilty of attempted murder, but not attempted manslaughter. But, you can get reckless
endangerment (separate crime). To be guilty of attempted murder there must be specific
intent to kill.

Attempt is a specific-intent crime

EG: Rape – general intent crime, requires recklessness. BUT, you can attempt TO RAPE
someone  you are intending to rape them. You have PURPOSE TO DO THE CRIME.
But, you couldn’t have attempted-rape in a Rusk-type situation. If there was no sex in
RUSK, it would have been no crime – no attempt.

So, you have to have PURPOSE with respect to the CONDUCT and RESULTS elements of
the crime, same mens rea with respect to the circumstances as is required for the crime.
(Note on circumstance elements: only matters with respect to statutory rape – the fact that D
didn’t know victim’s age is not exculpatory.)

MPC (p.243) means to require a purpose to engage in the conduct and result elements of the
offense, but the mens rea for circumstances is the same as would be required were the offense
completed. IF someone recklessly endangers another person, then it can’t be an ATTEMPT,
but it CAN be a misdemeanor for reckless endangerment.
People v. Thomas – anomaly under both CL & mpc. Attempt just requires the underlying
intent to try to commit the crime, plus substantial step.
Thacker v. Commonwealth – traditional rule. No attempted manslaughter b/c it’s a specifi-
intent crime.

What’s at issue? Line drawing – whether the RESULTS ought to matter, or, whether what
you did and what you thought when you did it ought to matter more. Especially in homicide
– somewhat arbitrary to draw the line at death, but it may actually be the best place to draw
the line (HITS v. misses by 1 ft? 2 ft? 10 ft? 30 ft?...) So you let off a few Thackers.

Rizzo – also not guilty of attempt

Harper – 229 – made a dollar stick in the machine so technician would come out,
=> hadn’t gone far enough.

2. Complicity
First: D’s lose.
Statutory language: you commit the crime if you commit the crime or “aids, abets, counsels,
commands, induces, or procures.”

Mens rea: knowledge or purpose with respect to the aiding and abetting, plus mens rea for the
underlying offense. => Basically the Thomas rule. Loses in attempt but wins in complicity.

Conduct requirement:
EG—lookout cases. Government argues lookout was aiding and abetting. What’s the
argument for D? How equiocal was his conduct? In attempt cases, courts are wary of
classifying ambiguous conduct as attempt, not so with complicity. D’s get much more
benefit of the doubt in other doctrines, but not here.

Why? Deterrence reasons & Retributive reasons – may be no other way to deter the
organizer of a crime, retributive, the bad guy is the organizer, not the hacks who complete the

Rex v. Russell (567) Jury found: facts were that mother drowned herself & kids, father stood
by & didn’t stop them, also didn’t persuade or encourage. What is dad’s liability? Found
guilty of manslaughter
McGhee v. Virginia – lover murders Ds husband – at her “urging” & she tells him where the
husband will be. Ct convicted her as an “instigator or advisor” But is this right? Is
“inducing” really enough/unequivocal?
State v. Tally Judge Tally telegraphed message to prevent a warning from getting to Ross.

C. Culpability/Mens Rea Requirement: (576)

US. V. Peoni
Backun v. US

3. Conspiracy
Punishing agreement in advance of action. Thus, it’s like intent. It also functions as an
alternative to complicity (punishing one for completed conduct of another).

A. Conduct: Agreement + overt act. BUT ACT doesn’t have to be defendant’s act, can be any
of the conspirators.
B. Mens rea: Purpose to agree to the act PLUS purpose or specific intent with respect to the
underlying crime. Circumstance elements – some uncertainty.

Twist on Tally hypo (2/18/02): Acceptance of plan = agreeing to plan. D’s best bet  focus on
the circumstances (didn’t want to disagree, feared for life). Can try to frame as an omission not
act. Why this rule? => Get at leaders of organized crime.

People v. Burleson (597) – would-be bank robbers.

Necessity of agreement – must be an agreement to do an act which is a crime.

Bilateral: must the agreement be bilateral, with at least 2 persons have a meeting of the mind?
Some say yes – this gets at undercover cops  can’t have a bilateral agreement with an
informant/agent, since they never intended to commit.
Some say no – more like factual impossibility (so D doesn’t get off), unilateral agreement
suffices (modern trend)


A. Traditional approach: focus on force

“the carnal knowledgeof a woman forcibly and against her will”
or, Rusk: “sex by force or threat of force against the will & without the consent of the other

CL Definition – traditional.
Conduct: (1) Sex (2) by force (3) overcoming resistance. (more than just non-consent or against
the will  overcoming resistance) This was difficult to prove.
Mens rea: NO mens rea requirement  STRICT LIABILITY. Why? The conduct is defined
such that it’s inconceivable to satisfy conduct and not have mens rea.

CL definition – contemporary (act/intent)

(1) overcoming resistance has dropped out for the most part. May be replaced by “reasonable
fear of bodily injury,” which is more an aspect of force. THUS, no resistance required,
essentially it’s gone.
(2) Redefining force: THIS IS STILL A FIGHTING ISSUE.
Does persistence in the face of non-consent = force?
Is the sex itself force enough?
Does there have to be more than just non-consent?

 trend in definition has been towards M.T.S. “SEX WITHOUT CONSENT.”

(p.285) -- rape is consistent with the law of assault and battery – any unauthorized touching
of another is a crime. Thus, there must be affirmative and freely-given permission of the
FORCE component is satisfied merely by the sex act itself.
BIG QUESTION IS, what kind of non-verbal cues suffice to give “affirmative permission”?
What is non-consensual? (litigating non-consensual vs. litigating force)

 Thus, MENS REA is being litigated, next generation of litigation will be about
mistake. Rape litigation, in particular, highlights ACT/INTENT trade-offs.

• He-said/She-said: large emphasis placed on this with rape. But on the other hand, this
comes up in a lot of areas of litigation. It’s just more exposed here. And note, that,
surprisingly, there is often not appreciable testimonial conflict – more a matter of
interpretation. Why? Rape draw boundary lines based on very fine differences in the factual
• Incentives to lie: victims in rape cases have very little incentive to lie, D’s have much,
much higher incentives to lie.
• Miranda doctrine has impact in acquaintance-rape: Ds are saavy, much more likely NOT
to talk in the middle of the night when the police come pounding on the door.

State v. Rusk – traditional approach

B. Mistakes of Fact:
The mens rea/intent side of rape will be litigated more and more, as the line drawing between
acceptable and criminal conduct becomes less discernible.
Up for grabs, the legal possibilities are,
(1) Strict liability:
NO MEANS NO. Some courts have held non-consent to be a strict liability element– even
honest and reasonable mistake of fact is not exculpatory. (maybe MTS?)

(2) Honest and reasonable mistakes are a defense (current majority)

See State v. Smith
 No specific intent is required, only a general intent to perform the physical acts
constituting the crime is necessary for the crime of first degree sexual assault
 Thus, G does not have to prove either an actual awareness on part of D that
complainant had not consented or a reckless disregard to the nonconsenting status.
 BUT D IS ENTITLED TO a jury instruction regarding mistake of fact – reasonable
belief that she had consented.

Should reasonable mistakes be exculpatory? P. 304 for feminists perspectives.

(3) Honest mistakes are exculpatory – rare!

What is a “reasonable” mistake? Defined empirically or normatively, i.e. “reasonable” as

common behavior or reasonable as good behavior? Should the law IMPOSE a social norm (SL)
or should the social norms of the day DETERMINE the law? If “reasonable” is defined by
common behavior, then does the mistake defense simply turn into an “honest” mistake? (If D
says it, must be true?)

What about mistake of law defenses? ???

A more normative than descriptive argument.

An alternative approach? => STUNTZ: would focus on suspect relationships? (2/20/02)

Other notes:
Fraud in fact – fraud re whether sex is happening (rare)
Fraud in the inducement: not criminal. You can lie about anything to get someone to sleep
with you.

C. Statutory Rape
Garnett v. State
Age for SR: 16 is most common, 14, even 18 exist. So, the crime is NOT about child
molestation anymore. Hence, the conduct doesn’t necessarily impute intent, thus, states have
either introduced mens rea requirement with respect to age OR an age differential requirement.

Question in Garnett is whether he gets to be treated differently because he is a “moral child” –

can it be introduced as evidence that he lacked the ability to form the requisite mens rea? (First,
D had to argue FOR a mens rea requirement,

(MPC 210.1) Criminal Homicide = murder, manslaughter, or negligent homicide.
A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently
causes the death of another human being.

Murder = 1st degree felony

Manslaughter = 2nd degree felony
NG Homicide = 3rd degree felony.

A. The CL Doctrines:
First degree (generally)
1) Intent to kill, premeditated
2) Felony murder (see also MPC 210(b))  the recklessness is assumed if one is
engaged in the commission or attempt to commit a felony (violent felony)
Second degree (generally)
3) Intent to cause “grievous bodily injury”
4) “depraved heart “ Recklessness plus” (see also MPC 210(b)). Most statutes say
“extreme” and “recklessness.”
(to evaluate whether something is murder, ask (1) felony murder? (2) does provocation doctrine apply?
(3) is there the requisite mens rea (standard 3 or 4)? )

1) Murder with provocation  would be murder, but D was provoked, committed
murder in the sudden heat of passeion engendered by provocation.
2) Mens rea less than (3) or (4) above, more than negligence. highly debated about
what the requisite mental culpability should be. (p658) “reckless or negligent
behavior that was insufficiently culpable to constitute murder but more culpable than
ordinary civil negligence.”
3) Misdemeanor manslaughter – occurs in the course of a qualifying misdemeanor,
unlawful act not amounting to felony.

Provocation Doctrine
1) D is in fact provoked
2) Provocation was “legally adequate”
3) Reasonable person – no “cooling time”

B. Model Penal Code

Murder: §210.3(1)(b)
1) Murder = purposely or knowingly or
2) Recklessly under circumstances manifesting extreme indifference to the value of
human life.
3) Sufficient recklessness is presumed if committing a violent felony.
1) “Plain” recklessly
2) Otherwise murder BUT committed under the influence of “Extreme emotional
disturbance”, for which there is reasonable explanation or excuse. (for which there is
a mens rea explanation). Reasonableness judged from person “in the actor’s situation
under the circumstances as he believes them to be.”

(1) Murder-manslaughter distinction (658)

Premeditation-Deliberation Formula
• People v. Anderson (Cal. 1968) [662] – Anderson was living with mother and her
10-year old daughter for 8 months. On morning of murder Anderson was left at home
with daughter, he had been drinking heavily. On appeal court reduced conviction from
first to second-degree murder.

The court held that there was insufficient evidence of premeditation and deliberation –
gave premeditated its literal meaning. In order to find “malice aforethought” to be a
first-degree murder, the intent to kill must have been the subject of actual deliberation or
forethought, carried on according to a preconceived design (brutality of the killing itself
≠ premeditation. Generally evidence of premeditation and deliberation fell into 3
patterns, most first-degree verdicts contained evidence of all three types or motive plus
one other:
(i) evidence of planning activity
(ii) evidence of motive
(iii) evidence as to the manner that showed a preconceived design to kill.

• MODERN APPROACH: Most courts today take “premeditated” to just mean

“intentional killing”, not “intent to kill”
=> moving toward MPC approach, “intent to kill” is all that is necessary; the
“premeditation” distinction doesn’t separate out “worse” murders, as many NOT
preconceived murders are more diabolically cruelty than premeditated ones in the natural
sense of the word.

C. The mitigation of murder to manslaughter at common law – PROVOCATION

Provocation Doctrine
(1) D is in fact provoked
(2) Provocation was “legally adequate” => VICTIM IS OKAY TO BLAME
(3) Reasonable person – no “cooling time” => considered murders are worse than
instantaneous ones, Provocation is not so much based on retribution than impulse.

(1) Legally adequate provocation

Freddo v. State (Tenn 1913)
Higginbotham called Freddo a son-of-a-bitch, Freddo proceeded to whack him on the
head with a steel bar, causing his death. GIST: Even if plaintiff killed in error under
the impulse of sudden heat of passion, it did not suffice to reduce the crime from murder
to voluntary manslaughter; unless the passion were due to a provocation that would,
in the mind of an average reasonable man, stir resentment likely to cause violence and
thus leading to action from passion rather than judgment. In this case, the plaintiff was
peculiarly sensitive to being called a son of a bitch, but epithets alone are not sufficient
provocation for murder. (Epithet + assault may be sufficient provocation, however, jury
did not accept that it was in this case.)
=> Objective, not subjective standard to be applied for determining whether deceased
sufficiently provoked a defendant into murder. The law proceeds in testing the adequacy
of the provocation upon the basis of a mind ordinarily constituted—of the fair average
mind and disposition.

Types of provocation held sufficient: angry words + assault; seeing friend or relative
being beaten; seeing man in adultery with d’s wife. Insufficient were: words alone;
misconduct of child/servant; gestures; and breach of contract. Many courts still refuse to
give voluntary manslaughter instructions in cases of words alone. IF the activity could
constitute provocation, then the evidence would be admitted.

(3) Provocation formula: At common law, killings were presumed to proceed from
malice aforethought. Provocation arose in rebuttal of the implication of malice (since all
crimes punished by death). Thus, it had RETRIBUTIVE foundations, not deterrence-
based foundings. It was about responding justly to wrongs, not simply impulse. Today,
the doctrine emphasizes impulse, although juries may not.

(4) VERSUS Cooling Time [782]

traditional doctrine of provocation requires the killing to occur before a sufficient interval
has passed “to permit the passions to cool” – i.e. if you wait too long you are thought to
be more blameworthy, it’s no longer a “heat of passion” killing. Generally the time
period is a question for jury.
State v. Gounagias – sodomy case followed by murder. (782,covered in class)
Arguments for Gounagias  focus on the rape, the rape is more causally responsible for
the death. This goes to victim blaming.
 Note: murder cases in Baltimore – if victim was a crack dealer, they were
unprosecutable. So juries DO in practice weigh the value of victims lives differently

IS COOLING TIME right? Should Gounagias lose b/c of amount of time that passed?
This doctrinal fact suggests that considered choices are worse than instantaneous choices.
Provocation doctrine says that impulse is not as bad as planning. But, trends in capitabl
punishment relate better to victim fault.

 The provocation big picture:

 conceptual choice: which do you blame more?

(1) Time and Planning versus (2) Victim Fault.
(MPC) (CL)

A. C/L: “legally adequate” idea  retributive. It’s about victim blaming, the language
orients you to an analysis of the victim’s conduct.

B. MPC: “extreme emotional distress” is key  thus, “spontaneous” matters. The analysis is
focused on the Defendant’s mental/emotional state. However, the second part of the
formula, the reasonable explanation, is somewhat subjective, somewhat objective. Trying to
be empathetic but place some limits on what emotional states qualify.

2 visions of culpability.
(5) The objective standard. [785]
Both cooling time and the sufficiency of provocation are measured by an “objective”
standard. But, how “objective” should the inquiry be, or, alternatively, what facts about
the incident leading up the crime are admissible?

Eg: Bedder – sexually impotent 18 year old killed prostitute who taunted him and kicked
him in the groin after he was unable to have intercourse with her.

What is the justification for the reasonable person standard? Does it go to deterrence &
the inability to prevent oneself from being the victim of a justified homicide? Should the
standard for provocation actually be subjective?

(6) Relevance of mental abnormality (791)

(iv) to provocation
(v) to “imperfect justification” –if defendant believed the killing to be a
necessary response to unlawful deadly force and that the response was reasonable
under the circumstances, then it is a defense to an intentional killing. “I. J.”
refers to the fact that many courts reduce the offense from murder to
manslaughter if only the subjective component of this inquiry is met (D believed
it was necessary).
Note: self defense is a complete justification – but it requires the objective component of
test to be met.

(7) Extreme emotional disturbance as a mitigation of murder to manslaughter

People v. Casassa (NY 1980) (792)
Casassa killed Lo Consolo, whom he had dated casually for awhile before she broke it
off. D claimed an affirmative defense of extreme emotional disturbance caused by Lo
Consolo’s “candid statement” of her feelings” (that whe was not falling in love with
him). At his bench trial, the sole issue presented was whether the D had acted under the
influence of “extreme emotional disturbance.”

History: In NYS, “extreme emotional disturbance” is an “affirmative defense”, thus D

has burden of proof. “extreme emotional disturbance” is an outgrowth of provocation
“heat of passion” doctrine. It recognized that an action influenced by an extreme
emotional disturbance isn’t necessarily spontaneously undertaken, the mental trauma may
affect D for a substantial period of time (simmering).

Issue in this case: What is the standard? Objective or Subjective? Ct. rejects the idea
that the reasonableness of the explanation or excuse must be tested from the subjective
viewpoint of the defendant. Ct. says (797) – the ULTIMATE test, however, is objective.
There must be a reasonable explanation for the actor’s disturbance. It should be made by
viewing the subjective, internal situation from D’s perspective, and assesing from that
standpoint whether the explanation or excuse for his emotional disturbance was
reasonable. WHAT DOES THIS MEAN? It’s supposed to achive the MPC goal of
broadening heat or passion doctrine to apply to a wider range of circumstances while
retaining some objectivity.

THUS – the test is 2-part. (1) Was D, as a factual matter (subjectively) acting under the
influence of “extreme emotional disturbance”? (2) The Is there a reasonable explanation
or excuse?” -- this is more objective, trier of fact must look into the reasonableness.
HOWEVER, if the fact finder finds CAN find that the excuse is “so peculiar to the
defendant that it is unworthy of mitigation.” Thus, there is a lot of discretion for the fact

Bigger picture: The problem is, under the MPC formulation of provocation, Cassada gets
in the door. It’s significant. THUS, Casassa has the power to PLAN to make it look
spontaneous under the MPC rule. NOT SO under C/L formula – Cassassa has NO
chance of winning.

D. Discretion in the system:

Little prosecutorial discretion, most of the discretion is for when to issue a death sentence and
when to isue a death warrant. AND, there are really no substantive limits – most classes of
murders are legally eligible for the death penalty. The rules that apply are mostly procdural (how
do/can juries decide who gets the death penalty during sentencing). AND, there are few rules
governing that. WHY??

E. Depraved Heart Murder: Note on “Malice Aforethought”

(1) Malice is a shorthand to talk about whatever qualifies to become murder – general
(2) Sometimes used to describe “depraved heart murder” – recklessness plus.

WHAT is DHM? Essex (801) versus Register(811). How is the intoxication relevant?

Essex v. Commonwealth
Drunk driver, fatal collision. Mental state is recklessness, so intoxication is not relevant. SO, the
CONDUCT is what the case is really about. Court talks about INTENT. He clearly did NOT
have purpose to kill – did not engage in volitional conduct or purposeful conduct, b/c he didn’t
know what he was doing (can try to back up – to getting in the car, but the crux of the conduct
comes down to when he actually crossed the line and hit the other car, so reframing won’t work).
The court doesn’t think it’s giving Essex an intoxication defense but it really is, because when it
comes down to how you explain the conduct, the intoxication means that he wasn’t being
purposeful – wasn’t trying to swerve, but it happened anyway. Thus, not inherently purposeful

Holding: The evidence was insufficient to support a finding of malice, thus the convictions of 2nd
degree murder are vacated  max conviction can be for involuntary manslaughter. Court
admitted the evidence of intoxication b/c it was relevant to a determination of the defendant’s
ESSEX is the majority rule

People v. Register
Guy gets drunk, goes into a bar, shoots his friend at close range. This case is also really about the
NATURE OF THE CONDUCT. Regardless of whether Register was drunk, his conduct was
obviously purposeful (at least recklessness plus)

Holding: Court rejected the admissibility of evidence of intoxication to negate the degree of
recklessness required for a murder conviction. Intoxication evidence should be excluded
whenever recklessness is an element of the offense.

 Universe of depraved heart killings:

(1) drunken -- the majority of DH killings. To get at malice for drunken defendants, focus on
the conduct.

(2) everything else – tend to be about neglect cases (Worthington). What does malice mean
for sober defendants? => grossly devaluing human life. Gross deviation from the
standard of care of an ordinary person.

F. Causation: [819]
The standard doesn’t come from MPC of any verbal formulation, although it is fairly uniform.
Lawyers argue the cases as “bait and switch”. Start by talking about “but for” causation, then
switch & talk about “responsible cause” – fault.

G. Felony Murder
Issue is, do we care whether felons had the requisite culpability for murder? Or, is the general
intent bad enough? The “innocence” story is not very innocent.

FM criminalizes behavior that absent the rule would NOT be an independent homicide offense –
D will be guilty of murder WIHTOUT proof that any of the traditional culpability standards were
satisfied. An entirely accidental death can get you murder – don’t even have to be negligent. It
applies STRICT LIABILITY to certain deaths.

Thus, it either (1) imputes mens rea – categorical mens rea. No matter how the death happens, D
had a substantial degree of recklessness with respect to causing death, D was culpable even if
there isn’t sufficient independent evidence to prove it.
Or (2) Substitute fault – “general intent” to commit the felony is bad enough.

A. Doctrine:
(1) What qualifies as a predicate felony? Inherently dangerous felonies.
Big 4: Rape, robbery, kidnapping, and arson.
Plus, in some states there is a catch all phrase & doctrine is subject to CL development.

How to argue:
 Substitute fault is appropriate/inappropriate
 Imputing mens rea is inappropriate: How common is it? Empirical evidence – if this
law is broken OFTEN & death isn’t caused, then can you really trust that D had the
requisite mens rea?
Do you want a rule or a standard?

(2) Merger: you have to say some felonies don’t qualify or else there will be no such thing
as manslaughter. ie.: Assault. If assault was, then EVERY murder would be murder 1,
because there are no murders without assaults. However, just b/c it’s not a felony
murder, doesn’t prevent you from STILL prosecuting for murder 1 – P just has to prove

(3) Causation – more important than in other areas of crim law. Argue it, again, by
appelaing to the two basic concepts of felony murder (substitute fault or categorical mens
• Trigger-man  always causation
• Partner of trigger man  also always causation. If one of the 2 partners in the
crime kills the victim, the other is likewise liable for felony murder.
• COP or other is the trigger-man  depends. Some say that, unless one of the
criminals fired the shot, felony murder doesn’t apply. May matter who the victim is
(i.e., if Ds partner, then obviously D didn’t intend to kill his partner (can’t impute)

B. Rationale?
Highly contested rule.

1. Common Law developed
 law of defenses is overwhelmingly judge-made. (Like with mens rea). So, even in
jurisdictions where it’s been codified, courts continue to treat the doctrine as a subject of
common law development.
 Question: Since there are (now) NO COMMON LAW crimes (Courts can’t make up
crimes), why do they get to make up defenses?

2. Types
A. Necessity – encompasses the concepts of justification and excuse
B. Self defense
C. Duress
D. Entrapment
E. Insanity

3. Doctrines:
A. Necessity “choice of evils”
MPC: 3.01 – justification as an affirmative deense
MPC: 3.02 – justification as a choice or evils
 can’t be a legislative purpose to exclude the justification
 unavailable if D was reckless or negligent in bringing about the situation (like duress)

“justification” and “excuse” are concepts, not doctrines.

There is some question as to whether there WAS a “general defense of necessity” at common
law – most say yes, although it arose rarely, as most necessity claims were raised under other,
more specific doctrines.

The argument almost never wins. WHY?

(1) D’s chose when it applies – tell a good story, can lead to a slippery slope. And, Ds have
a lot of control over what the court makes of the facts.
(2) Markum (325): Government always wins these, “we’re fighting the cause.” Claims
• Lots of other options – NOT just 2 choices (lobby the government, etc)
• Rule of law – if G makes somehting legal, it would lead to anarchy to let you act
contrary to that.
• But, should the courts extend a certain measure of tolerance to dissidents? Let it
act as a check on democracy
(3) Drug debates/medical necessity (334)  reverts to same debate as in markum.

B. Self defense
• “Reasonableness” is moving to a more subjective standard, but this is the fighting issue.
1. Defendant reasonably believed (belief has to be honest and some version of
2. That he faced an unlawful threat (only available if victim wasn’t the aggressor)
3. Of death, serious bodily injury, or a qualifying felony (robbery qualifies. Serious
bodily injury is contested, but not very often b/c in practice the cases resolve into the first
or 3rd categories.)
4. The threatened harm was imminent (is what’s generally at stake in battered women
syndrome cases. And in Kelly, it looks like an easy case – why isn’t it?)
5. D’s response was reasonable

C. Duress

D. Entrapment

E. Insanity
1. Legislative supremacy
Allocation of lawmaking power – textualism vs. purposive interpretation debate.
No common law crimes – strong form of legislative supremacy. Except for
CONSTITUTIONAL law – Constitutional regulation of criminal law, which has focused almost
entirely on the procedure and not at all on substance.

2. Prosecutorial Discretion
Bedrock rules:
Prosecutors have unreviewable discretion  Attica, Armstrong, Wayte.
(1) Attica (912): No judicial review of prosecutors’ charging discretions.
• Primary grounds for this is separation of powers doctrine
• Court also says, in the absence of legislative oversight, it would be too difficult for
courts to administer  they would essentially become super-prosecutors.
• would give the public access to otherwise-confidential files.
• Arbitrariness would be inherent in any judicial decision to compel prosecution.
• In part b/c decisions about whether to prosecute involve complex resource
allocation decisions.
• See Also Armstrong p. 923
(2) Armstrong (921)  What does D have to show to prove that he was prosecuted on the
basis of race? Result says, race discrimination is NOT an exception to Wayte and Attica
 i.e., prosecutorial discretion is unreviewable & no claim of constitutional arbitrariness.
• What is the appropriate standard for granting discovery in a selective-prosecution
(1) Selective-p claim:
• It is not a defense on the merits to the charge itself, but an independent
assertion that the prosecutor has brought the charge for reasons forbidden by the
• The standard for discovery is a demanding one, there is a strong presumption
of regularity in prosecutorial decisions, absence clear evidence to the contrary,
courts presume prosecutors have properly discharged their duties.
• Constitutional constrains on pros. Discretion does include equal protection
under Due process clause.
• Yick Wo: D may demonstrate that the administration of Crim law is
directed so exclusively against a particular class... with a mind so unequal an
oppressive... that the system of prosecution amounts to a practical denial of
equal protection.
• BUT requires CLEAR EVIDENCE to dispel a presumption that
prosecutors are NOT violating equal protection. D must show:
• Discriminatory effect  MUST SHOW that similarly situated
individuals of a different race were not prosecuted. Successful claim: Yick
• AND discriminatory motive/purpose.
(2) Standard for granting discovery
• Some evidence tending to show the existence of the essential elements of
the defense, meaning: evidence that similarly situated Ds of other races
could have been prosecuted but were not.
=> in this case, the “study” did not constitute sufficient evidence, b/c it failed to
identify (specific?) individuals who were not black & could have been
• Fails b/c D failed to show the G declined to prosecute similarly situated suspects
of other races.
(3) Wayte: (930):
Protested (dodged) the draft, was prosecuted, claimed that he was “selectively
prosecuted” and “impermissibly targeted” for prosecution on the basis of their exercise of
1st amend. rights.
• G has broad discretion as to when to prosecute
• Selective prosecution claims are to be judged according to ordinary equal
protection standares
• Discriminatory effect PLUS
• Discriminatory intent (motive)
Wayte failed to show that he was selected for prosecution on the BASIS of his
speech, failed to prove INTENT.
• Big result: The law requires no minimum threshold level of enforcement of
criminal statutes  even if G never enforces X crime, it CAN when it wants & D
can’t bring a claim for selective prosecution (unless can prove intent – unlikely).

Note on history: 3/13/02 CN:

It’s NOT historically accurate to say that we have always had prosecutorial discretion  the
norm was, if you HAD A WINNABLE cae then you would make an areest and prosecute.
That changed with the coming of VICE crime – too much crime to prosecute. Thus, police
get to decide where to make arrests, and prosecutors decide WHO to prosecute. They create
indirect “legal rules” defining who gets prosecuted and who gets off.

Note: other societies – also don’t have judicial review. However, there may be social
regulation – different norms regulating discretion

IF no CL crimes & no prosecutorial discretion, how do courts restrain legislative & prosecutorial
power? => vagueness doctrine & doctrines governing statutory interpretation.

3. Vagueness Doctrine
A. When is a statute unconstitutionally vague?
Vagueness Doctrine Requires:
Statue is vague on it’s face (threshold)
(1) statute does not give too much discretion to COPS (i.e.,can’t just write statutes allowing
cops to seize/arrest but for which prosecutors cannot prosecute)
(2) The statute does not create too many notice problems,
(3) it does not reach a substantial amount of innocent conduct (really, 2 & 3 converge, since
notice does NOT come from reading statutes, rather, it comes from living in the world.)

THUS, a statute will be unconstitutional if it flunks ALL 3 of these tests, AND NOT JUST in
how it’s written, but in how it’s INTERPRETED by the courts.

(a) Chicago v. Morales (525)

The constitution does not permit a legislature to set a net large enough to catch all
possible offenders & leave it to the courts to step inside to say who could rightfully
be detained and who couldn’t. The legislature must establish minimal guidelines to
govern law enforcement.
Note on discretion: the S.Ct. of Ill. could have interpreted the “loitering” conduct
requirement differently – more narrowly, which would have “solved” the
vagueness problem, but it did not.
(b) Nash v. US (supp 28)  a statute isn’t unconstitutionally vague if it leaves too
much discretion to the prosecutors. Lots of cases involve exercises of discretion and
vagueness, has to be something more than just that. Also stands for the proposition
that it’s not JUST the statute’s text, but how it’s interpreted by the text.
(c) People v. Kail (935)
Purports to be an equal protection case, but it’s not the conventional doctrine. The
case should have been brought under vagueness doctrine, but it wasn’t . WHY?
Because the statute in question was specific – riding a bicycle without a bell.

C. The SHADOW of vagueness doctrine: Vagueness as a source of arguments & Interpreting

Criminal Statutes
Claim is, vagueness doctrine doesn’t matter so much today, rather, it casts a shadow on
statutory interpretation.
 Effect 1: Cities still have VICE LAW statutes (anti-cruising, etc), they are upheld as
not unconstitutionally vague because they are written with sufficient specificity (i.e.,
the reason People v. Kail matters/has impact).
 Effect 2: Serves as a tool for arguing, not a limit on criminal punishment.


4. Interpreting Criminal Statutes
Bronston (supp 30)
Brogan (supp 35)
Keeler (p. 64)