Accomplice Liability (Common Law)

Although aiding and abetting is not a crime, courts frequently discuss accomplice
liability in terms ordinarily reserved for criminal offenses.
For example
o The second partys assistance may be characterized as the actus reus of
accomplice liability
Can take the form of solicitation of the offense, active assistance in the
commission of the crime, encouragement of the offense, or failure to
prevent commission of the crime if the secondary party has a legal duty to
make such an effort
o The intent to promote or facilitate the commission of the crime is the mens
rea
The mens rea of an accomplice is sometimes described as a dual intent
The intent to aid the primary part, AND
The intent that such assistance result in the commission of the
offense charged
If found to be an accomplice, then youre guilty of the underlying offense for which
you were an accomplice to.
o Less intent required to prove this theory of liability
Complicity, Intention, Agency, and Forfeited Personal Identity
It has been argued that all definitions of the term accomplice as used by federal
accomplice liability statutes have nothing to do with the probability that the forbidden
result would follow upon the accessorys conduct
o Rather,
That they demand he in some sort associate himself with the
venture,
That he participate in it as in something that he wises to bring
bout it, and
That he seek by his action to make it succeed
Alternatively
o Guilt, as an accessory, depends not on having a stake in the outcome of the
crime, but on
Aiding and assisting the perpetrators; and those who make a
profit by furnishing to criminals, whether by sale or otherwise, the
means to carry on their nefarious undertakings aid them just as
truly as if they were actual partners with them, having a stake in
the fruits of their enterprise

Attempt (Common Law)

Mere preparation is not a criminal act.
Many jurisdictions have specific provisions for the punishment of attempts to commit
certain offenses, and almost all cover the rest of the field with a general attempt statute
o With a few exceptions, these general statutes cover attempts to commit any felony
or misdemeanor
 In modern American jurisdictions, the rule of merger operates to the extent that a
defendant cannot be convicted of both a completed offense and an attempt to commit it
o All jurisdictions treat attempt as a lesser included offense of the completed crime
o Many jurisdictions have held that a defendant may be convicted of the attempt if
the state proves the completed crime, and several states so provide by statute
The principal purpose behind punishing an attempt is not deterrence
o The threat posed by the sanction for attempt is unlikely to deter a person willing
to risk the penalty for the object crime
Instead, the primary function of the crime of attempt is to provide a basis
for law enforcement officers to intervene before an individual can
commit a completed offense
Incomplete Attempt
o The actor does some of the acts that she set out to do, but then desists or is
prevented from continuing by an extraneous factor, i.e. the intervention of a
police officer
Complete Attempt
o The actor does every act planned, but is unsuccessful in producing the intended
result, i.e. shoots, but misses
The Role of Harm in Criminal Attempt
o Is there social harm in an attempt? If not, are we punishing harmless conduct due
to illicit thoughts alone?
Some commentators believe that punishment in the absence of harm is
unjustifiable
If one views deterrence as the proper function of the criminal law,
a harm requirement is appropriate
To the extent that criminal law punishes non-harmful conduct, it weakens
the stigma and deterrent effect of criminal conviction for harmful conduct
If a defendant who has caused no harm feels that he is punished
unjustifiably, rehabilitation efforts will be hampered
If one believes that the role of the criminal law is to provide retribution, a
harm requirement is also proper
In the absence of harm, there is nothing for which to seek
retribution
o The consistency of a requirement of harm with these fundamental purposes of the
criminal law is reflected in the fact that harm has, from the earliest of civilized
times, been treated as a de facto requirement
Intent and Attempt
o A finding of specific intent to kill is a necessary element of the crime of attempted
murder
Trial courts must be clear about that, and that intent to harm or knowledge
of harm/death is not enough to convict of attempted murder
Knowledge that an action may cause harm or death is not the
same as intent to kill
o Criminal attempts involve two intents
The Actors Conduct
 The conduct that constitutes the attempt must be intentional
The Actors Purpose in Committing Said Conduct
Shooting a gun is an act (first part)
o Shooting a gun with the intent to kill is the second part;
thats the mens rea
o The two intents often merge
Examples
Donald accidentally pulls the trigger of the gun, and kills George
o In this case, the first intent is missing, and the second is
absent as well. He probably didnt intend to kill George if
he didnt mean to pull the trigger
Donald purposely aimed and pulled the trigger
o The first intent is solid. But the second still must be proven
beyond a reasonable doubt. That is, that he intended to
murder or try to murder George
Typically, the second intention; the intent to cause the completed
offense, is the key mens rea issue.
Intent and the MPC
o Confusingly drafted; see section 5.01
Common Law Actus Reus Tests for Attempt
Last act test
o A criminal attempt only occurs when the actor has performed all the acts they
believe are necessary to commit the target offense.
Physical proximity test
o To be guilty of attempt, the actors conduct must be so near to the completed
offense that it would result in that offense actually happening if the actor wasnt
hindered by outside circumstances.
Dangerous proximity test
o This is Holmess test: theres no attempt unless the danger of success is very
great.
Indispensable element test
o There is no attempt if the actor has not obtained some indispensable feature of the
criminal plan.
Probable desistence test -
o The actor has committed an attempt if they reached a point where, without outside
intervention, its unlikely that they would have voluntarily desisted from his
effort to commit the crime.
Unequivocality (res ipsa loquitur) test
o Unequivocal= non-ambiguous
o This is an objectivist test.
The assumption underlying the test is that there is some relationship
between the actors state of mind and the external appearance of his acts
o An attempt is committed when the actors conduct manifests intent to
commit a crime.
If the acts are ambiguous, theres not necessarily an attempt
 With only a few exceptions, most jurisdictions that follow the common law dont follow
one particular test.
Usually, a jurisdiction will use multiple versions of these tests.
o For the purposes of being a lawyer in a non-Model Penal Code jurisdiction, you
must be familiar with all the tests.
o The Model Penal Code has its own test, so you would use that test in a Model
Penal Code jurisdiction.
There are a few states that really actually apply a particular common law test, like New
York.
o In most states, all of these tests and more are out there and may be considered.
The common law tends to be objectivist, while the Model Penal Code tends to be
subjectivist
Remember, Court Approaches Differ
o Depending on whether a court takes an objective, or subjective approach to
attempt laws, the line between preparation and perpetration may be drawn
relatively earlier, or late, in the process
Objective
The acts performed, without any reliance on the accompanying
mens rea, mark the defendants conduct as criminal in nature
Subjective
If the evidence at hand is sufficient to prove the necessary attempt,
there is criminal intent
o This approach is rejected because conviction upon proof of
mere intent provides too great a possibility for speculation
and abuse
o No matter how clear an intention, it does not prove attempt
Slight acts done in furtherance of committing a crime, however, do
constitute an attempt
This can be so even if intent is not clearly shown
o Actions speak louder than words?
Abandonment of a Crime
o Voluntarily abandoning a crime before completion exonerates a defendant from
criminal responsibility.
Abandonment of an attempted crime before completion is a valid defense
to the crime.
Abandonment must be voluntary and complete.
o Voluntary abandonment negates the conclusion that the accused continues to be
dangerous, and the knowledge that voluntary abandonment exonerates one form
criminal liability provides a motive to desist prior to completion of the crime
o The sooner the better, that is, the earlier you engage in removal from the activity,
the more likely you can this defense
Good way to do this? Statement of intent. I dont want to do this anymore.
o Rarely recognized, and hard to get

State v. Reeves
 Two twelve-year-old girls, Tracie Reeves (Reeves) and Molly Coffman (Coffman)
agreed to kill their homeroom teacher, Janice Geiger (Geiger), with rat poison. On the
date the girls planned to murder Geiger, Coffman carried a packet of rat poison to school
in her purse. During the bus ride to school, Coffman informed Christy Hernandez
(Hernandez), another student, of the plan and showed her the rat poison. Hernandez then
told her homeroom teacher, Sherry Cockrill (Cockrill), of the plot, and Cockrill in turn
told the principal, Claudia Argo (Argo). Geiger noticed the two girls leaning over her
desk when she entered the room. The girls noticed Geiger, giggled, and ran back to their
seats, leaving a purse next to Geigers coffee cup. Thereafter, Argo requested that
Coffman come to the principals office and the rat poison was found in her purse.
o Under Tennessee law, attempt requires that the defendant act with intent to
commit an offense and the conduct constitutes a substantial step toward the
commission of the offense.
The conduct does not constitute a substantial step unless the persons
entire course of action is corroborative of the intent to commit the
offense.
o The Tennessee Supreme Court appears to abandon the distinction
between mere preparation and the act itself.
Here, even though the girls did not actually place the poison
in the teachers cup, it is clear that they possessed the
materials to commit the crime at the scene of the crime and
the materials could serve no lawful purpose.
Under these circumstances, the jury is entitled, but not
required, to find the girls guilty of attempt.

Attempt (Model Penal Code)

In a Model Penal Code jurisdiction, there is a defense of renunciation.
o You must freely and completely give up your plan.
o If youre an objectivist, what is your position?
o Should we recognize a defense of genuine abandonment of the criminal plan?
The objectivist would reject the defense, while a subjectivist would accept
the defense.
If you have truly renounced your dangerous intentions, you are no longer
dangerous or culpable.
We dont want to find attempt too close to the mere thinking stage because that would
be unjust, but we dont want to find attempt to close to the completion stage because
we want a shot at preventing the criminal conduct.
Look at 5.01(1)(c) because this was an incomplete attempt.
o You will be guilty if you do a substantial step towards the commission of the
crime.
o In 5.01(2), there are a bunch of things that are examples of things that may be
sufficient to corroborate the actors criminal purpose.
We dont want to punish innocent people.
o But if any of the categories 5.01(2)(a) through (g) are present, it just means that
its not legally permissible for a judge to hold that its not legally sufficient.
 To put it another way, if any of these factors are present, the case should
go to a jury and it would be wrong to direct a verdict of acquittal for a
defendant if they meet one of those categories and its strongly
corroborative of criminal conduct.
o The categories (a) through (g) are only for the judge. They are not read to the
jury. The jury only hears the substantial step language.
The Model Penal Code is strongly distinguished from the common law in that most of
the common law tests look back to see how close the defendant has come to completion.
o The Model Penal Code test asks how far the defendant has gone from the
thought process.
o If the defendant has taken a substantial step towards committing the crime,
even if there is a lot more to be done, you can convict.
Therefore, its much easier to convict under the Model Penal Code than at common
law.

Burden of Proof
Protect individuals from the state. From unfair judgment. To be fair.
o The burden is so intense to ensure that the trial is fair. That someone is undeniably
guilty. We do this rather than risk deprivation of an innocent individuals life.
Human justice is not perfect. We are not perfect. The burden of proof is so heavy because
there is only so much humans can prove, and we expect that to be fully utilized. This
ensures the best possible outcome by way of fairness.
o The appellate court standard of proof is not the same as the burden of proof.
They have a different set of criteria with which they view things.
They must break things down.
They must view the evidence in the light most favorable to the
prevailing party, and see if it stands up.
Define beyond a reasonable doubt
o A subjective state of near certitude of guilt.
So75% likelihood of guilt?
o Its not really quantifiable
So, how should jurors be educated on the subject before deliberation?
There is no prohibition in the Constitution concerning a court
defining reasonable doubt, nor are there requirements that they do
so.
Certain definitions of doubt, however, can violate the Due Process
clause.
Presumption of innocence throughout trial
o 5th amendment right to not incriminate
o Presumed innocent until proven guilty
o Having defendant testify isnt always good, may ruin the above.
o In Owens case, simply tried to prove he wasnt on public highway. Having him
testify was unnecessary. Unfortunately, didnt work.

Causation
 Actual Cause (Cause-In-Fact)
o The But For Test
But for the voluntary act or omission of the defendant, would the social
harm of the offense have occurred when it did?
If the answer to this question is yes, that means the defendant is
not the actual cause of the harm.
If the answer to this question is no, that means the defendant is
actually the actual cause of the harm.
o With actual causation, we create a line-up of all the possible people who could
have caused the harm.
If something is a proximate cause, then it is an actual cause. If something is an actual
cause, it is not necessarily a proximate cause.
o Therefore, you must discuss actual cause first and then discuss proximate cause.
Sometimes, but-for isnt good enough. The test is not absolute.
o It may fail, and we may then turn to the
Substantial Factor Test
Two defendants (must be 2), acting independently, commit two
separate acts, and either of them would have caused the end
resulting harm individually, anyway.
Oxendine v. State
o Prosecutor used Acceleration, shouldnt have
Couldve used Aggravation; probably wouldve been best bet in this case
Substantial factor wouldnt have worked because the medical testimonies
wouldnt have proved it.
Other Causation Theories
o Acceleration
Act accelerated death (failed in Oxendine)
o Aggravation
Both acts, looked at concurrently, caused the death.
Proximate Cause (The Legal Cause)
o Now were in the area of deciding what is just and fair.
This also serves as a legal limitation on factual cause.
You cant hold everyone responsible! Itll go on forever.
Whenever you think about a proximate cause question, think about a line
going from the act of the defendant and the social harm. Then you look to
see if there were any other but for causes that occurred between the time
of the voluntary act and the time of the social harm.
If there is nothing that comes between the act and the harm, then it
is a case of direct harm. Thats an easy case; the defendant is in
the actual cause lineup by himself.
Often, however, there will be some intervening cause that comes
between the act and the harm.
Now we have a serious proximate causation issue because we must
decide who we want to hold responsible
There is no black letter rule for judging proximate cause.
 However, there are a number of tests and standards for proximate cause.

Foreseeability
Coincidental and responsible intervening causes
o An intervening act is a coincidence when the defendants
act just put the victim in the wrong place at the wrong time,
in which case the defendant is not the proximate cause
unless the result was foreseeable.
On the other hand, an intervening act is a response when the act is a
reaction to the conditions made by the defendant for the victim, in which
case the defendant is the proximate cause unless the intervening cause is
unforeseeable and very highly unlikely, bizarre, and abnormal.
These are superseding factors; they were not foreseeable. There
is no black and white way to determine this. Analysis will
always vary.
o You stab A. You leave A on the road. A car strikes him.
You put him there. Still your fault
o You stab A. You leave A on the road. He is struck by
lightning.
Not your fault in anyway. Not foreseeable
(necessarilywhat about during a storm?).
There are also intervening factors.
Similar to superseding, but not the same.
Another party, foreseeable and possible, and the defendant is still
held liable.
Unless you can prove that the intervening action was also a
superseding one.
o You get shot. EMTs arrive. They botch fixing you. You
die.
Still defendants fault. You wouldnt have been in
that mess if he hadnt shot you. Ordinary
negligence is not superseding. Shit happens.
o You get shot. EMTs arrive. One has the Plague. He gives it
to you. You die.
He is responsible for your death. He intervened, and
his actions superseded the actions you took in
causing the death.
The Intended Consequences Doctrine
o Based on the intended consequences doctrine, we reach back to the person who
intended to cause the harm to find the proximate cause of the harm.
In other words, the mother got what she wanted, though not the way she
wanted. We will probably hold her to be the proximate cause of the death.
However, we must say probably because this is just one way to
look at proximate causation.
The Apparent Safety Doctrine
 o The apparent safety doctrine says that once the danger from the defendant is no
longer present, we no longer consider that defendant a proximate cause.
The question is: did the victim reach apparent safety?
o Since she could have easily gotten into the house, we would assign proximate
cause for her death to her based on this doctrine
See State v. Rideout

Conspiracy (Common Law)

An agreement, express or implied, between two or more persons to commit a criminal
act or series of criminal acts, or to accomplish a legal act by unlawful means
o Be careful to distinguish between the agreement and the group agreeing
That is, if X and Y plan, then at the last minute, Z joins in, Z is not a
co-conspirator
Z is an accomplice to the crime, but he is not part of the
conspiracy, as he had no part in the formation of the conspiracy
Frequently prosecuted, but extremely controversial crime; three common criticisms
o Conspiracy is so vague and formless that prosecutors are able to use its
existence to suppress inchoate conduct that they consider to be potentially
dangerous or morally undesirable
o Its simply too inchoate!
A person may be convicted of the common law offense before they even
commit any act in perpetration of a crime
o Crime is mental by nature, and consists primarily of a meeting of minds and
intent
At common law, no conduct in furtherance of the conspiracy is required
o Even when an overt act in furtherance of it is statutorily required, the act may be
trivial and wholly preparatory to the commission of the target offense
Consequently, advocates of conspiracy law believe the offense
unfetters police and fills in the gaps in the unrealistic law of
criminal attempt
It is said that an agreement to commit a crime is concrete and unambiguous evidence of
the actors dangerousness and firmness of criminal intentions, therefore justifying early
intervention
o However, the agreement that serves as concrete and unambiguous
evidence of the defendants dangerousness and culpability is often proved by
inference, which leads to frequent false positives
Moreover, even if an agreement is conclusively proven to exist, the
potential temporal remoteness of the agreement to the targeted
offense increases the likelihood that some conspirators who may later
renounce their intention will be punished
A solicitation is an attempted conspiracy
It is possible to have a conspiracy without solicitation
o A wants to kill B, but asks C for help. C agrees. They have formed a conspiracy.
There was no solicitation because A didnt ask B to do commit the
crime; he asked for assistance.
 o Similarly, if both wanted B dead, there would be conspiracy upon agreement
without any solicitation
Conspiracy is a specific intent crime that requires intent to agree or conspire as well as
a further intent to commit the target crime.
In People v. Swain, the alleged target offense was second-degree murder, based upon a
theory of implied malice.
o However, in this case, conspiracy to commit such an offense is impossible due to
the time when culpability is assessed for conspiracy and second degree implied
malice murder.
For conspiracy, culpability is fixed through hindsight, at the time of the
agreement.
o As a result, because the type of murder alleged would not be completed until the
killing actually occurred, the convictions of both Swain and Chatman on the
conspiracy conviction couldnt stand.
See Commonwealth v. Cook
o The fact that a person may have aided and abetted a crime does not establish
conspiracy, particularly where the evidence shows that prior planning was not an
inherent facet of the crime.
Furthermore, neither association with a criminal nor knowledge of an
illegal activity constitute proof of participation in a conspiracy.
See Commonwealth v. Azim
o Once conspiracy is established and upheld, a member of the conspiracy is also
guilty of the criminal acts of his co-conspirators
Because conspiracy emphasizes mens rea, and de-emphasizes conduct,
there is a risk that people are punished for what they say rather than why
the do, or for associating with others found culpable
Group Criminality
o Advocates of conspiracy laws hold that two people united to commit a crime are
more dangerous than one person, or even both independently planning to commit
the same offense
First, out of fear of co-conspirators, loyalty to them, or enhanced moral
arising from the collective effort, a party to a conspiracy is less likely to
abandon her criminal plans than if she were acting alone
Second, collectivism promotes efficiency through division of labor; group
criminality makes the attainment of more elaborate crimes possible; and
the combination in crime makes more likely the commission of crimes
unrelated to the original purpose for which the group was formed
More people, more risk
Punishing Conspiracy
o Common Law
Misdemeanor historically
Presently, it varies from state to state
However, typically, the sanction for conspiracies is graded in
relationship to the contemplated crime
 o Conspiracy to commit a felony punished as a felony,
misdemeanor as misdemeanor, etc.
o Usually punished less severely than the targeted crime
Merger?
o Common Law
Unlike attempt and solicitation, conspiracy does not merge into the
attempted or completed offense that was the target of the conspiracy
Youre guilty of both.
The non-merger rule makes sense if one focuses on the idea of
attacking the special dangers thought to inhere in conspiratorial
groups
Example
D1 and D2 conspire to rob V, and later attempt or successfully do
so
o Punished for conspiracy AND robbery (or attempted
robbery if it was an attempt)
Mens Rea and Conspiracy
o Common conspiracy is a specific intent crime
o You must intend to agree, and intend that the object of said agreement be
achieved
At times, culpability required for conviction of conspiracy can be greater
than required for conviction of the object of the agreement
Example; agree to burn building for insurance. Dont know 2
people are inside, and they die. Guilty of murder, but not
conspiracy to commit murder, as it wasnt part of the plan.
Attendant Circumstances (Common Law)
o Some courts hold that conspiracy cannot be proven unless the parties have
knowledge of the attendant circumstances, even if such knowledge is not required
for the underlying crime
In short, a higher mens rea (as to an attendant circumstance) must be
proven in a conspiracy case than for some target offenses
o Other courts believe that the policies relating to the underlying offense should
apply to the conspiracy charge
If the underlying offense is strict liability as to the attendant
circumstance, the same rule should apply to conspiracy to commit that
offense
o Under the MPC, there is no approach.
It was believed that the matter is best left to judicial resolution on a case
by case basis
The Corrupt Motive Doctrine (Common Law)
o What if the parties know all of the relevant facts, but do not know that their
agreed upon goal is a crime?
Under the doctrine, beyond the usual mens rea requirements, parties to an
alleged conspiracy are not guilty unless they had a corrupt or wrongful
motive for their planned actions
 o That is, when conspiring to murder, the requirements are lax here. So long as
they parties have sufficient knowledge to know their conduct is wrongful,
theyre guilty
But what if two people intend to assault someone, but dont know hes an
undercover cop?
Theyre not guilty of conspiracy to commit the crime of assaulting
a police officer, as they did not know he was a police officer
Similarly, if you agree to commit an act, but dont realize its wrong,
youre still guilty of commission, but not conspiracy, as you did not
realize it was wrong and thus had no bad motive
This doctrine is essentially an exception to ignorance of the law
is no excuse
o MPC does not recognize the doctrine
Plurality
o Common law specifically says two or more
o MPC focuses on inquiring about who is liable, rather than the group
Conspiracy is defined in terms of the guilt of a single party
A person is guilty of conspiracy with another if he agrees with
such other
Basically, there must be a group/agreement/etc to have a conspiracy, but
you may still convict an individual of conspiracy regardless of whether or
not you ultimately can/may do the same to the others involved under the
Codes approach
Many states adopted this

Defense of Habitation (Common Law)

In common law terms, your fortress has been attacked, and your safety and privacy have
been jeopardized.
Rules Regarding Deadly Force
o Early Common Law
You may use deadly force against another if you reasonably believe that
such force is necessary to prevent an imminent and unlawful entry of your
home
The right to use deadly force is triggered by the immediacy of the
unlawful entry. The unlawful purpose of the intruder, and the degree to
which he constitutes a threat, is immaterial.
The reasons dont matter. As long as the owner reasonably believes that
deadly force is the only way of preventing the entry, he may use it.
o Middle Approach
A person may use deadly force if he reasonably believes that
The other person intends an unlawful and imminent entry of the
dwelling;
The intruder intends to injure him or another occupant, or to
commit a felony therein; and
Deadly force is necessary to repel the intrusion
 This is narrower than the original common law defense.
o Narrow Approach
A person may use deadly force if he reasonably believes that
The other person intends an unlawful and imminent entry of the
dwelling;
The intruder intends to commit a forcible felony therein; and
Such force is necessary to prevent the intrusion
Forcible felony is the key word here.
A felony committed through violence or surprisea murder,
robbery, rape, arson, etc
This approach differs from the Middle Approach in two ways
Deadly force is impermissible if the occupant knows or should
know that the intruder only intends to commit a minor battery
The resident may not use deadly force if he knows or should
know that the intruders purpose is to commit a nonforcible
felony, such as larceny.
o Deadly force AFTER the Intruder Has Entered?
The defense of defense of habitation is triggered when an intruder
attempts to enter the dwelling unlawfully
What if you wake up, and someone is in your home already?
o Some courts say the defense is not applicable post entry. If
you use force, you must assert a different defense.
Many jurisdictions allow the defense to apply
o Keep in mind that the fact that they have already entered
will impact your right to use force anyway.
For example, the intruder is your drunk neighbor
coming over to party or something because hes a
drunk asshole and means no harm.
In such an instance, you cant use deadly force.
The right to defend a dwelling is based on reasonable appearances, not objective
reality
o This is especially so with habitation defenses because the right to use force is
triggered before entry occurs, and therefore, often before you know the
intruders intent.
In most cases, a home-dweller who uses deadly force will be able to
satisfy the elements of even the narrowest version of the habitation
defense.
Even under the narrowest version of the defense, a home-dweller will often be permitted
to kill an intruder whom he knows intends to commit a nonviolent felony like larceny.
o This result usually follows from the inclusion of burglary as a forcible felony
At common law, a person who intends to enter anothers home in order to
commit larceny is a burglar if he breaks in at night.
Modern burglary statutes dispense with the nighttime requirement, thus
expanding the right to use deadly force.
Self Defense and the Defense of Others
 o The common law defense of habitation is broader than the right to kill in self
defense or protect a third person.
First, under the original common law and middle approach to habitation,
a home-dweller may properly use deadly force against an intruder even if
the dweller does not reasonably believe that his life or the life of the
occupant is jeopardized
The habitation defense, therefore, permits use of force
disproportional to the physical harm threatened.
Second, the traditional defense of self-defense is not triggered until
physical harm is imminent.
The right to defend the home beings when entry of the dwelling is
imminent, which may be well before the dwellers physical
well-being is in imminent jeopardy
o The defense of habitation is an accelerated self-defense.
Law Enforcement Defense
o The privilege to use deadly force to defend ones home will often overlap with
law enforcement defense.
To the extent that an occupant reasonably believes that the intruder intends
to commit a felony inside the home, the residents right of deadly force to
defend his habitation will coincide with his right to kill in order to
prevent commission of a felony (crime prevention).
The right to defend the home beings when entry of the dwelling is
imminent, which may be well before the dwellers physical
well-being is in imminent jeopardy
Again, the defense of habitation is an accelerated self-defense.

Defense of Others (Common Law)

Generally speaking, common law says that a person may use force to protect a third
party from unlawful force by the aggressor
o The intervenors right to use force in such circumstances parallels the third
partys right of self defense
That is, the intervenor may use force when, and to the extent that, the third
party would apparently be justified in using force to protect itself
o Thus, deadly force is justified if the intervenor has reasonable grounds for
believing that such force is necessary to prevent the danger of imminent
death or grievous bodily injury to the innocent third party.
Largely due to the MPC, the majority view today is that an intervenor may use force
to the extent that such force reasonably appears to the intervenor to be justified in
the defense of the third party
o Advocates of the reasonable-appearance rule justify it on both utilitarian and
retributive grounds
Potential Limits
o This defense was originally limited to the protection of persons related to the
intervenor by consanguinity, marriage, or employment relation. This is rarely
enforced.
 o A majority of jurisdictions once applied the alter-ego rule
An intervenor could only use force to defend a third party if the latter
party would in fact have been justified in using force, and force in the
same degree, in self-defense
This means that D, the intervenor, was placed in the shoes of X,
the person being defended, and acted at her peril
o If X had no right of self-defense, even though a reasonable
person would have believed that X did, this rule provided D
was not justified in protecting X.
This doctrine, when applied, represents an exception to the common
law rule of force based on reasonable appearances.
From a utilitarian perspective, the consequence of the alter-ego
doctrine is that onlookers will hesitate to intervene in disputes. The
fear of legal consequence will stay them.
o The reasonable appearance rule seeks to defend the
defender, legally, who acts while injury may still be
prevented.
From a retributive perspective, the alter-ego doctrine allows
liability and punishment where there is no fault.
o The reasonable appearance rule ensures people who act
reasonably, albeit mistakenly, are not punished for their
good intentions.

Diminished Capacity
o A term used to describe two categories of circumstances in which an actors abnormal
mental condition, short of insanity, will occasionally exonerate him or far more often,
result in his conviction of a less serious crime or degree of crime than the original charge.
o There are two common law models of diminished capacity:
o Mens Rea Model
Functions as a failure of proof defense.
Evidence of mental abnormality is NOT offered by the to
partially or fully excuses his conduct, but RATHER as evidence to
negate an element of the crime charged, almost always the mens
rea element
o Partial Responsibility Model
Partially excuses or mitigates a defendants guilt even if he has the
requisite mens rea for the crime.
*Only used in a few states only for the crime of murder, to mitigate
the homicide to manslaughter.
o Model Penal Code 4.02 reminds us that medical or psychiatric evidence can be used
not only to prove insanity, but to prove the lack of a certain mens rea necessary for to
prove a crime
o On the other hand, when all of the elements of the crime have been proven, some
courts will reduce the offense from murder to manslaughter on the grounds that a
person should be found to be partially responsible for the homicide
 o Its a case of partial diminished capacity rather than total loss of capacity.
Courts recognize that there are some people who are not insane, but also
are not fully responsible for their actions
Very few states recognize diminished capacity.
o The Model Penal Code, however, does recognize this concept.
Manslaughter, under the Model Penal Code, covers extreme mental
disturbance, not just extreme emotional disturbance
Any state that recognizes EMED implicitly recognizes the diminished
capacity doctrine
But most states have abolished the partial responsibility version
of the diminished capacity doctrine

Felony Murder (Common Law)

The FM doctrine declares that one is guilty of murder if a death results from conduct
during the commission or attempted commission of any felony
o At first, in the past, this rule operated to impose liability for murder based on
the culpability required for the underlying felony without separate proof of any
culpability with regard to the death.
The homicide, distinct from the felony, is an offense of strict liability.
To apply the FM doctrine as it was used in the past would be ridiculous.
For example
o A liquor seller violating a statutory felony is a murderer if
the purchaser falls asleep on the way home
o A person who communicates a disease during felonious
intercourse is guilty of murder if the partner dies of
infection.
o Presently, legislatures have created a wide range of statutory felonies. Many of
these crimes are minor misconduct, and do not pose an inherent danger to
life/carry penalties like those for murder.
The felonies that apply the to the doctrine are specifically
enumerated.
o Depraved Heart Murder vs. Felony Murder
The difference is, in DHM, when the defendant kills someone while
committing an act which, by its nature, poses a high probability that the
act will result in death, the trier of fact may infer the defendant killed with
malice
Under felony murder, if the inherently dangerous act is a felony,
the defendant is deemed to have killed with malice aforethought as
a matter of law
Most modern statutes provide that a death that results form the commission of a
specifically listed felony constitutes first-degree murder.
o If a death results from the commission of an unspecified felony, it is
second-degree murder.
o At face value, felony murder authorizes the assignment of strict liability for a
death that results from the commission of a felony.
 Some courts have disclosed that felony murder dismisses the
requirement of malice. However, the typical understanding is that the
intent to commit the felony, in itself frequently a dangerous and
life-threatening act, constitutes the implied malice required for
common law murder.
Felony Murder is a complex concept, and there are limitations
(see below)
Limitations on Felony Murder
o The rule is finicky, as is its application. There are limitations set by many
courts. Common ones are
o Inherently Dangerous
The most common limitation placed on felony murder. Application of this
limitation varies from state to state.
The abstract rule determines if a felony-murder has been
committed by having the court look to the elements of the felony in
the abstract, not the particular facts of the case. That is, not the
defendants actual conduct.
o The court must determine whether the felony by its very
nature cannot be committed without creating a
substantial risk someone will be killed.
Other states deem a felony inherently dangerous if it
is dangerous to human life no matter what standard,
abstract or facts-of-the-case
Some states apply both.
o Merger
A person is guilty of felony murder if a death occurs in the course of a
commission of a felony.
However, where the felony is an integral part of the homicide,
one cannot be guilty of both the felony and felony murder, but
rather, the crimes merge into the single crime of murder.
Using People v. Smith as an example, the Defendant willfully inflicted
physical pain on a child. Said conduct was the basis of the felony child
abuse charge and was in turn the conduct that caused her death.
Therefore, the merger rule applies, and the Defendant cannot be
guilty of both the felony child abuse and murder.
The merger doctrine forbids conviction of both a felony and a
murder if the felony relates to conduct that directly causes the death.
For example, if a person robs another and then beats him to death,
he cannot be convicted of both assault and murder since the assault
led to the murder.
 o However, he can be convicted of both robbery and murder
since the conduct leading to the robbery charge was
separate and distinct from the conduct causing the murder.
o The Res Gestae Doctrine
Nearly all courts agree that the felony murder doctrine still applies, even
after a felony is technically completed, if the killing occurs during the
escape from the scene of the crime, at least if it is part of one
continuous transaction.
There must also be a causal relationship between the felony
and the killing.
o As well, the death must be a proximate cause of the
felony
Felony murder rules, and their specificities, vary from jurisdiction to
jurisdiction. Read carefully.
o In the perpetration of the crime (Statutes that use this term)
Once the felon reaches a safe haven and time passes, there is no longer
an opportunity for a felony murder.
Most courts agree with this.
Of course, you can still be charged with a homicide. Just not
felony murder.
o Reckless homicide, negligent homicide, etc.
Killing by Non-Felons and Felony Murders Applicability
o Should the felony murder doctrine apply when the killing is caused by the act(s)
of a third party?
There are two approaches
The Agency Approach
o The majority rule is that the felony murder doctrine does
not apply if the person that directly caused the death was a
non-felon
o Generally speaking, the acts of the primary party
(committing the felony) are imputed to an accomplice on
the basis of the agency doctrine.
It is not possible to impute the acts of the
antagonistic party (the non-felon) to a felon on
the basis of agency.
The Proximate Causation Approach
o A minority alternative theory holds that a felon may be
held responsible under the felony murder rule for a
 killing committed by a non-felon if the felon set in
motion the acts that resulted in the victims death.
If an act by one felon is the proximate cause of the
homicidal conduct by the non-felon, murder
liability is permitted.
o Basically, a direct application of the proximate cause
doctrine to the felony murder
Justification of Felony Murder
o Deterrence
The common justification for FM is that it deters negligent and accidental
killings during the commission of felonies
It urges caution to felons.
It enhances the risk of committing a crime.
o Even if they will still commit a felony, they will ideally do
so in such a way that minimizes the risk of death.
Critics reject this argument.
How do you deter an unintended act?
A felony is intended, but the result of a death is unintended, and
may even be unforeseeable by even the most cautious felon. Yet
they are still responsible?
Advocates cannot provide much evidence to support their theory.
It is hard to justify felony murder on grounds of deterrence.
o The Sanctity of Human Life
The rule reflects societys judgment that the commission of a felony
resulting in death is more serious, and therefore deserves greater
punishment, than the commission of a felony not resulting in death.
There is a greater debt to pay in such cases.
Is this fair? An accidental death deserves greater punishment than an
intentional one?
Culpability matters too. Not just the harm.
o There are two harms at play herefelony, and homicide.
o There should be separate analysis for the culpability of
each.
o Is it fair to punish greater for a death that may have come
unintentionally, non-recklessly, and non-negligently?
Criticism of Felony Murder
 o Transferred Intent
The felons intent to commit a felony is transferred to the homicide.
Thus, the crime is one of intent. Not strict liability.
This is a misuse of the intent doctrine.
The doctrine provides that an actors intention to commit a
particular social harm, relating to a particular victim, may be
transferred to a different, unintended victim of the same social
harm.
Ordinarily, the law does not recognize a transfer of intent to
cause one type of social harm to a different and greater social
harm involving the same victim.
o Yet, applying the intent doctrine here is doing just that.
o Easing the Prosecutors Burden of Proof
It dispenses with the requirement that the prosecutor show that the felon
intended to kill or injure the victim grievously, or that the felon was aware
that his/her conduct was highly dangerous to human life.
All the prosecutor must do is prove that the defendant
committed the felony and that the death occurred during its
commission.
Insanity (Common Law)
There is controversy over the proper relationship between mental disease and criminal
responsibility
o First, although insanity is rarely raised as a defense, it is offered in some
unusually heinous and well-publicized cases, such as mass serial killings, or
bizarre homicides
These crimes are horrific. Should the actors be committed and treated, or
imprisoned?
o Second, the defense intermingles psychiatry and the law
The two speak different languages
A legal defense that is based at its core on a medical conception, and is in
turn difficult to administer, as the legal standard must satisfy several
sometimes conflicting objectives
It must reflect underlying principals of criminal responsibility,
comport with the current scientific understanding of mental
disease, permit mental health experts reasonably opportunity to
provide their insights to the court, and yet also preserve to the
trier of fact the ultimate and full authority to render a verdict on
criminal responsibility
General Rule
o An incompetent individual cannot be tried criminally; it is a violation of Due
Process
 A person is incompetent when
They lack the capacity to consult with their attorney with a
degree of rational understanding; AND/OR
They lack a rational as well as factual understanding of the
proceedings against them
Incompetency can be the result of a physical handicap (unable to speak),
or temporary or permanent mental disability
o Competency is required for trial for purposes of fairness.
Determining Competency
o The prosecutor, defense, or trial judge may raise the issue of competency.
It is independent of any insanity plea that the defendant might later
raise.
o Typically, a defendants competency to stand trial is treated as an issue of law to
be determined by the trial judge; not a fact for the jury to consider
When the issue is raised, the defendant is required to submit to a
psychiatric examination during which they may be committed to a
mental facility
o If the findings are not disputed, the judge may act on them.
If the findings are disputed, a hearing is held at which parties may submit
evidence on the matter of competency
State laws vary on the burden of proof at the hearing
o Some require the prosecutor to demonstrate the defendants
competency once the issue is credibly raised
o Other states place the burden on the defendant to prove by
preponderance of the evidence that they are not competent
to stand trial
o Other jurisdictions allocate the burden to whichever party
raised the issue
Effect of an Incompetency Finding
o If the defendant is determined incompetent to stand trial, criminal proceedings
must be suspended until they are found competent
In some cases, particularly if the incompetence is a permanent condition, a
trial may never even be held.
o Such a finding typically results in the defendant being committed
Due Process is violated, however, if they are committed indefinitely
solely on the basis of incompetency to stand trial
A person may not be restrained more than the reasonable period
of time necessary to determine competency
o If it is determined this is possible, then the continued
commitment must be justified by progress toward that
goal.
If not, the defendant must be released or committed pursuant to
civil procedures
The length of pretrial commitment will frequently extend beyond the
possible maximum sentence for the crime, regardless.
 Pre-Trial Assertion of Insanity
o Many states and federal rules require the defendant provide the prosecution with
prior notice (pre-trial) of intention to raise the insanity defense
This allows the prosecutor to prepare a rebuttal, and the court opportunity
to submit the defendant to psychiatric testing
o In virtually all states, the court may force the defendant to undergo a pre-trial
psychiatric exam if they plan to plead insanity
Typically results in a commitment of defendant for 60-90 days, during
which the exam is done
If the court ordered psychiatric report supports the defendants
claim of insanity, the prosecutor will frequently dismiss charges on
the condition that the accused agrees to civil commitment at a
mental facility
Jury Verdicts
o Typically three verdicts available with insanity plea
Not guilty
Guilty
Not guilty by reason of insanity
Implies prosecution proved all elements of the crime, including the
defendants mens rea, beyond a reasonable doubt, and that all of
the defendants non-insanity defenses were rejected, but that the
accused was insane at the time of the crime
o Logically, a jury should consider NG first, and then be given the NGRI
instruction so they allow the prosecution to fully present their case, and the jury
does not simply reach the NGRI verdict without having determined that the
prosecution has proven all of the elements of the crime
Bifurcated Trial
o A few states require, and others permit, a trial court to bifurcate a criminal trial
in which the insanity defense is raised
In a bifurcated system, all aspects of the case except the defendants
sanity are litigated at the first phase of the trial
At the completion of said phase, the fact finder deliberates and
returns a guilty or not guilty verdict. If the verdict is NG, the
defendant is acquitted and the trial ends
If guilty, phase two happens
o The sole issue here is the accuseds insanity claim
After introduction of testimony, the fact finder
deliberates and returns a second verdict of guilty, or
NGRI
The purpose of this system is four-fold
Time is saved
Confusion may be reduced (no psychiatric evidence to also
consider at first)
Decrease possibility of compromise verdicts
 o Jury may find someone insane even if they have doubts of
the crime in a unitary (one phase) system, when the person
may not have done anything wrong/may not necessarily be
insane
Protects a defendants privilege against compelled
self-incrimination
o In a unitary system, defendant may be forced to testify
about their mental condition at the time of the crime to
support insanity defense
In doing so, open to questioning on issues unrelated
to mental condition
o In a bifurcated system, defendant may remain silent during
first phase, and force prosecutor to prove participation in
the crime by independent evidence
o Doesnt really work as planned
Sometimes, evidence of insanity must be introduced in phase one to
demonstrate the defendant lacked mental state required in offenses
definition
Therefore, the same evidence is introduced twice, although both
stages are different
o In phase one, psychiatrist may testify on likelihood of
defendant having capacity to form mens rea for the
criminal act in question
o In phase two, same witness questioned about the accuseds
sanity at the time of the crime
This method is confusing, and wastes time.
Burden of Proof
o Insanity is an affirmative defense
Defendant has initial burden of producing evidence regarding their mental
condition in order to raise the insanity defense
Furthermore, legislature may constitutionally require the defendant
to persuade the jury that they were insane at the time of the crime
A majority of jurisdictions (state and federal) require the defendant to
shoulder the burden of persuasion regarding their insanity claim
Most jurisdictions require a defendant to prove their insanity, and do so
via preponderance of the evidence
Federal court defendants are required to prove insanity by clear
and convincing evidence (some state do as well)
o No state court currently requires the defendant to prove
their insanity beyond a reasonable doubt, although such a
burden may be constitutional according to the Supreme
Court
o Prosecutor still has to prove each element of the crime, including the mens rea,
as usual, AND prove that the defendant was sane at the time of the crime.
Rationale
 o Utilitarian
Punishment of an insane person is pointless/counter-productive
If they dont know what theyre doing, they cant be deterred from
threat of consequence by criminal sanction
No need to convict and imprison a crazy person; theyll end up in an
institution anyway
Imprisoning a mentally ill person is not rehabilitative. They need to be
treated medically
o Retributive
We pity mentally ill people; they lack the capacity to rationally control
their behavior
We cannot blame them for their wrongdoing
The defense is a distinguishing point between a mad person, and a bad
personevil and sicknessthose who can choose, and those who cannot
You cannot morally evaluate an insane person as though they were
sane. They cannot be held to the same standard.
A man who cannot reason cannot be subject to blame
If you cant impose blame, you cannot punish.
Tests of Insanity
o MNaghten Rule
Cognitive based
A person is insane if, at the time of her act, she was laboring under such
a defect of reasoning, arising from a disease of the mind, that
She did not know the nature and quality of the act that she was
doing; OR
If she did know it, she did not know that what she was doing
was wrong
o That is, the accused did not know the difference between
right and wrong at the time of doing the act
Some states use this, some use only part
Criticism
Considered unrealistic because by its terms, it does not recognize
degrees of incapacity
o A person must wholly lack cognition, yet our present
mental institutions house individuals that to some extent
can differentiate between right and wrong, but are still out
of touch with reality
The test is too absolutist
The test is too narrow, and restricts psychiatric testimony as result.
Consequently, the jury fails to receive a full background on the
defendants state of mind
The test regards mental illness as volition; it is outdated
o By focusing solely on cognitive disability, the rule
disregards the possibility that the person may be able to
 distinguish right from wrong, but be unable to control their
behavior
o Irresistible Impulse (Control) Test
Often used to broaden MNaghten test as a third prong to it
Generally speaking, a person is insane if, at the time of the offense
She acted from an irresistible and uncontrollable impulse;
She lost the power to choose between right and wrong, and to
avoid doing the act in question, as that [her] free agency was at the
time destroyed; OR
The defendants willhas been otherwise than voluntarily so
completely destroyed that her actions are not subject to it, but are
beyond her control.
Criticism
Too narrow, or that it should be abolished
Improper to exclude non-impulsive behavior, and that it is
psychologically nave to require total incapacity
o Many courts, however, permit use of the test even if the
defendant planned her behavior, so long as the defendant
lacked the ability to control her conduct
o Also, most courts do not require proof of total volitional
incapacity.
Abolitionists argue that if an exceptionally strong urge to commit a
crime should excuse, it should excuse whether the person suffers
from a mental illness or not
o Durham/The Product Standard
Extremely broad, and intended to bring insanity law in line with modern
psychiatric knowledge
Only adopted by one court (NH)
A person shall be excused if their unlawful act was the product of a
mental disease or defect.
In other words, theyll be let off if they wouldnt have done the
act but for their mental disease.
No volitional or cognitive road bumps to complicate analysis
The standard was intended to give jurors critical information needed to
decide whether to hold a defendant criminally responsible
Only New Hampshire uses it
Criticism
Fails to define mental disease or defect
Allows psychiatrists to usurp jurys authority
o They acted as defense and prosecution, and the jury would
simply pick which one they believed more.
o The jurys moral judgment would be suppressed
Excludes from criminal responsibility some deterrable and morally
blameworthy people
 o Someone could know right from wrong, but still act on
their delusion. Under this test, however, they are insane
MPC Insanity Definition, 4.01.
o Broad overall
You are not responsible if, at the time of conduct, your mental disease
causes you to lack the substantial capacity
(1) To appreciate (not just knowing, but understanding and
appreciating the harm and social consequences) the criminality or
wrongfulness of your conduct, OR
(2) To conform your conduct to the dictates of the law.
o This is a revised definition of MNaghten and irresistible impulse tests
It consists of a second, more significant cognitive prong of the former
tests, and restates the volitional aspects of the latter standard
Uses appreciate rather than know, which makes it less narrow
o Avoids impulse as word
Both prongs of the tests are modified by words lacks substantial
capacity, eliminating the need for total incapacity
o Criticism
Those who favor a broader test criticize the
definition because they believe it is based on an
outdated psychological assumption that the human
mind is divided between volitional and cognitive
functions
Those who favor a narrow definition of insanity are critical of the
test because of its inclusion of a volitional prong, even though
psychiatrists now question their ability to provide data on the
subject
Mental Disease or Defect
o Mental illness, mental disorder, and mental disease or defect are not
synonymous with insanity
o The first set of terms are used by the mental health community; insanity is a legal
term
Mental illness is not a defense
o A person can be mentally ill without being insane
Insanity, however, presupposes a mental disease or defect
Mental Disorder
o Not a discrete entity; can be both physical and mental in its apparition
o Medical Definition
A clinically significant behavioral or psychological syndrome or pattern
that occurs in an individual and that is associated with present distress, i.e.
a painful symptom, or disability i.e. impairment in one or more important
areas of functioning, or with a significantly increased risk of suffering
death, pain, disability, or an important loss of freedom. In addition, this
syndrome or pattern must not be merely an expectable and culturally
sanctioned response to a particular event.
 o Legal Definition
A mental disease or defect, or disease of the mind
Terms effectively undefined
MPC provides no general definition either
Automatic Commitment on Acquittal
o A person found NGRI is rarely release upon acquittal
o They are more or less automatically committed
Under such laws, the NGRI acquittee is not entitled to a pre-commitment
hearing to determine whether she continues to suffer from her illness, or to
determine whether institutionalization is necessary for protection of her
and society
o NGRI acquittees get fewer procedural rights than others subjected to civil
commitment
Supreme Court held that a person may not be committed to a mental
institution in a civil proceeding unless the state proves by clear and
convincing evidence that she is presently mentally ill and that she is a
danger to herself or others
IN CONTRAST, NGRI acquittees in automatic commitment
jurisdictions are already deemed mentally ill/potentially
dangerous as a result of the acquittal/permittance of the defense
Discretionary Commitment on Acquittal
o In a non-automatic jurisdiction, the acquittee may legally be detained temporarily
in a mental facility for observation and examination to determine whether
indefinite commitment is necessary
Under federal law, a commitment hearing must be held within 40 days of
an NGRI verdict
o If the offense involved property damage or bodily injury to a person, or a
substantial risk of either, the defendant must prove by clear and convincing
evidence that she is entitled to release (that is, that doing so would not create a
substantial risk of bodily injury to another person or serious damage of property)
With less serious crimes, she must meet the same standard by a
preponderance of the evidence
Release after Commitment
o An insanity acquittee may be detained for as long as she is BOTH mentally ill and
dangerous to herself or others
She is entitled to release when no longer mentally ill, OR no longer a
danger to herself or others; doesnt have to be both
Any law otherwise violates the Due Process clause
o Length of Confinement
Indeterminate until she meets the criteria for release
In practice and as a constitutional matter, she may remain
hospitalized for a longer period than she would have served in a
prison had she been convicted of the crime that triggered her
commitment
 o The concept of proportionality between a criminal offense
and the length of detention is irrelevant in such
circumstances because the purpose of her confinement is
treatment, rather than punishment
o Release Procedures
Vary by jurisdiction
In many states, the court that ordered the commitment retains jurisdiction
over the individual
She, or the mental facility, may petition said court for release
based on that jurisdictions criteria
In most jurisdictions, the acquittee may not petition for a release for a
specified period of time, ranging from 90 days to one year after initial
commitment
Thereafter, subsequent petitions may be limited to stated time
intervals
Entitled to a hearing on petition for release
In nearly all states, the burden of proof is placed on the committed party to
demonstrated that she is either no longer mentally ill or dangers
Burden varies from preponderance of the evidence to clear and
convincing evidence
Abolition of the Insanity Defense
Political hawk abolitionists dislike it because they want less excuses recognized in
criminal law
Political dove abolitionists want to expand excuses available, but for reasons of equity,
do not want to treat mentally ill people with more leniency
Abuse
o Some abolitionists assert that the insanity defense is abuse of the criminal justice
system
o Its asserted too often and with success, and that most are fraudulent
o Wrongdoers walk free
o There is little or no support for this proposition
Counter-Deterrence
o Valid utilitarian use for people actually ill, but the defense arguably negatively
impacts those who are not, and those who are not severely mentally ill
Belief that one may be able to plead the defense may dissuade deterrent
effect of criminal sanctions
Conflict of Perspectives
o Some abolitionists argue that criminal law and psychiatry cannot mix
They use different philosophical perspectives
The law is premised on free will, and psychiatry is typically
deterministic so far as human conduct goes
Criminal law seeks to draw distinction between the mad and the bad,
which is not possible; it is an illusion
 o Criminal law holds that although humans generally possess free will, some are so
irrational that they lack the basic attributes of personhood that make them morally
accountable for their actions
Therefore, the present claim is more an argument for limiting the scope of
psychiatric testimony at trial than it is for abolishing the defense
Abnormal Behavior
o Some abolitionists believe that mental illness is simply abnormal behavior, and
the term is pseudo-scientific
For example, slaves were considered mentally ill when they fled.
Feminists pre-feminism were neurotic
Homosexuality was a disease
Equity
o Some abolitionists contend that conditions like child abuse, or a bad social
environment, are more viable excuses than insanity and yet do not constitute valid
defenses
o Because such individuals are not exculpated, the insane should not be either.
Legislative Efforts
o Post-Regans attempted assassination, this became a big issue
o Four states abolished it
In them, the defendant may introduce evidence of mental illness or defect
to rebut a claim that they possessed the mental state required for the crime
o These state laws have been declared constitutional.
So long as the prosecution is required to prove beyond a reasonable doubt
that the defendant had the requisite mental state, the laws are ok.
Guilty but Mentally Ill
o A new verdict that a minority of states have adopted
o Addition to options of Guilty, Not Guilty, or NGRI
o NGRI in such states used if defendant was insane at the time of the crime
o GBMI used if defendant guilty of the offense, was sane at the time of the crime,
but is mentally ill at the time of trial, the latter term being defined by
statute
Effect is, convicted party receives the guilty sentence, but after sentencing,
she may receive psychiatric care in prison or in a mental institution
If cured while in custody, she must complete her prison sentence
o Proponents argue it
Reduces inappropriate insanity findings
Improves treatment of the mentally ill, but sane, offenders; and
The public receives greater protection from mentally disordered/dangerous
offenders
o Critics argue that
There is too fine of a distinction between mentally ill and insanity for a
jury to distinguish
GBMI verdict is unnecessary; anyone convicted of a crime may receive
psychiatric care
GBMI people are not guaranteed treatment
 Juries may compromise and return a GBMI verdict when NGRI should be
reached
i.e. this may reduce the number of appropriate insanity acquittals,
rather than reduce the number of inappropriate ones

Intoxication (Common Law)

It is well established that intoxication, whether voluntary or involuntary, may preclude
the formation of specific-intent and thus serve to negate an essential element of
certain crimes
o It is, however, only the mens rea of a specific-intent crime that may be negated
by said defense
The defense has no applicability to general intent crimes
There are two legally relevant forms
o Voluntary
See Veach case
Can plead it as a way to mitigate liability, such as in a specific intent
crime. You were too drunk to have formed the mens rea required
Old English Common Law was harshthe intoxicated defendant
shall have no privilegebut shall have the same judgment as if
he were in his right senses.
o It was seen as an aggravation of the offense; not an excuse
Eventually, American Jurisdictions viewed intoxication less harshly (at
first, it was similar to England), and used it to consider whether or not a
defendant was capable of performing a specific intent, and therefore guilty
or not guilty
A strong counter-trend is underway
o Although some states retain the specific intent/general
intent dichotomy, others have narrowed or abolished the
voluntary intoxication defense entirely
Are such statutes unconstitutional?
NO. Supreme Court says burden reduction
for prosecution is not unconstitutional. It is
not the same as burden shifting (relieving
the prosecutor of all burden), and it is not
against the bounds of legality unless the
evidence violates principles of fairness.
o Involuntary
Four kinds recognized
Coerced
o Induced by reason of duress or coercion
o Courts have strictly construed this so that acquittal by
reason of it is very difficult
Pathological
 o Intoxication grossly excessive in degree, given the amount
of the intoxicant, to which the actor does not know he is
susceptible (MPC definition)
o Such offenders have not been held criminally responsible
for their acts when they ingested the intoxicant not
knowing of their special susceptibility to its effects
Innocent Mistake
o Innocent error by defendant about the character of the
substance, such as being tricked into taking liquor or drugs,
and subsequently does something (not held responsible)
Unexpected by ingestion of drug
o Defendant is unexpectedly intoxicated due to the ingestion
of a medically prescribed drug
How does involuntary intoxication exculpate?
First
o An involuntarily intoxicated individual is entitled to
acquittal if, as result of the condition, he does not form
the mens rea for the offense
That is, he will be exculpated if as a result of the
involuntary intoxication, he lacks the specific
intent
o ALSO, although there is exceedingly little case law on the
matter, it would seem that because the actors intoxication
was contracted in a non-culpable matter, he should also
be acquitted of any general-intent offense.
Second
o A person whos involuntary intoxication renders the
individual temporarily insane is entitled to acquittal of
any offense
Entitled to exculpation if, as a result of the
intoxication (not mental disease), the actors
condition satisfies that jurisdictions definition of
insanity.
The defense, however, is involuntary
intoxication, and not insanity (civil
commitment procedures that often attach to
an insanity acquittal do not apply here).
Intoxication and Insanity
o To plead insanity, the defendant must suffer form a mental disease or defect
As currently understood, alcoholism is not a mental disorder, so it is not
automatically available to an alcoholic
o Long-term and excessive use of alcohol or drugs, however, sometimes brings
on an independent mental infirmity that persists even after the substances have
worn off
 Most jurisdictions that have considered the issue recognize a defense in
such circumstances, even if the defendant possesses the requisite mens rea
for the offense
BUT, the defense is that of insanityoften termed settled
insanity in this contextand not intoxication
Should a person be excused if her settled insanity was induced by
voluntary ingestion of alcohol or drugs?
State v. Sexton
o To retain any moral or legal salience, the doctrine
mustif it is ever justifiedbe limited to those cases
where the initial choice to abuse alcohol or drugs has
become so attenuated over time that it serves little or no
purpose to hold the defendant accountable for that choice
once a permanent mental illness has taken hold through
years of chronic substance abuse.
Except in minority of cases, critics say hold the
defendant responsible for their actions.
Settled insanity is not a defense they
should get.

Homicide (Common Law)

Year and a Day Rule
o At common law, a defendant cannot be prosecuted for murder unless the victim
died within a year and a day of the act inflicting injury
Doesnt mean you cant be charged with assault, however, if, for example,
you shoot someone and that time frame applies and vindicates you of
murder.
You still shot them.
o This rule is not really applicable anymore. Especially due to the use of life
support machines to prolong life indefinitely (more or less).
o Florida does not have this rule.
Responsibility for death?
o Although it varies occasionally, death is typically defined in modern times as
cessation of brain function
The cause of that is the cause of death
o Artificial life support is not technically life without brain function
o People v. Eulo
Doctrine of Lesser Offenses
o A defendant, generally, has the right to a jury instruction upon request that he may
be found guilty of an offense included within the offense charged, so long as
the factfinder could reasonably conclude from the evidence introduced at trial
that he is guilty of the lesser, but not greater, offense
I.e. aggravated assault instead of manslaughter.
Lower form of murder
o This doctrine is not limited to criminal homicide prosecution
 o You cannot be convicted of a more serious offense than charged, however.
Willful, Deliberate, Premeditation Formula
o Distinguish between more and less culpable intentional killings
o Think about and apply the words carefully
PROBLEM?
Some of the worst murders are intentional, and on the spot. They
dont have to be premeditated to be heinous. Sudden impulse often
produces horrible murders too.
First degree murder is the intentional and unlawful killing of a human being with
malice and with premeditation and deliberation
o These are circumstantial processes that cannot be proven directly.
o To determine, then, the following must be examined:
Want of provocation on the part of the deceased
The conduct and statements of the defendant before and after the killing
Threats and declarations of the defendant before and during the course of
the occurrence giving rise to the death of the deceased
Ill-will or previous difficulty between the parties
The dealing of lethal blows after the deceased has been felled and
rendered helpless
Evidence that the killing was done in a brutal manner
(Also, nature and number of wounds can serve as indicators of
premeditation/deliberation)
Rule of Provocation (common law)
o Traditional categories of provocations
Extreme assault or battery on defendant
Mutual combat
Illegal arrest
Injury or serious abuse of a close relative
Sudden discovery of spouses adultery
o There must have been an adequate provocation;
o The killing must have been in the heat of passion;
It must have been a sudden heat of passionthat is, the killing must
have followed the provocation before there had been a reasonable
opportunity for the passion to cool;
There must have been a causal connection between the
provocation, the passion, and the fatal act.
o For provocation to be adequate, it must be calculated to inflame the passion
of a reasonable man and tend to cause him to act for the moment from
passion rather than reason.
Words alone are not adequate provocation.
 They can be, however, if they are accompanied by conduct
indicating a present intention and ability to cause the
defendant bodily harm
The standard is one of reasonableness; it does not, and should not,
focus on the peculiar frailties of mind of the petitioner.
Some courts consider informational words by their nature to be
more provocative
o Ex. Your husband is having an affair with Samantha.
o Generally, a defendant seeking to negate the malice element would have to
present evidence of provocative behavior by the victim
The court would have to determine that the conduct was legally
provocative, i.e. fits one of the categories.
Modern courts are abandoning this view little by little, and being
much more open in their interpretation
o There is no exact science to what constitutes adequate
provocation, and every situation is different.
o It is not an excuse, but it is a part of human nature.
All circumstances must be examined.
Therefore, leave the determination to a jury.
o Some legislatures explicitly reject certain defenses of provocation
Example
Maryland
o Discovery of a spouse cheating in the act does not
constitute legally adequate provocation to mitigate murder
to manslaughter, even though that discovery provoked the
killing.
o Regarding cool off time, juries now often determine this factor rather than the
judge.
Does that factor always act the same in every situation?
What if youre raped, and weeks later, the rage builds to the point
of action? Does the cool-off factor really matter?
The Reasonable Man
o What is a reasonable man?
Characteristics?
Traits?
What determines it?
Gender and Age are sometimes taken into consideration,
depending on the circumstances.
o General standard of reasonableness?
Or one that varies with the circumstances?
Culture? Genetic factors that affect personality?
Extreme Emotional Defense (More Liberal Than Reasonable Man In Com. Law)
o MPC 210.3(1)(b) broadens the common law view, encompassing also the
heat-of-passion and diminished capacity doctrines
 EED has 2 components
The particular defendant must have acted under the influence of
extreme emotional disturbance, and
There must have been a reasonable explanation or excuse for
such extreme emotional disturbance, the reasonableness of which
is to be determined from the viewpoint of a person in the
defendants situation under the circumstances as the defendant
believed them to be.
o 1st requirement is wholly subjective. Must determine that the defendant in the
matter did in fact act under an EED, and that the explanation is a true cause
o 2nd is difficult to describe. Whether the explanation was reasonable
It serves the purpose of eliminating the rigidity of past determination of
whether a provocation was adequate to justify mitigation of a sentence,
such as the idea that words alone can never be enough.
This avoids an arbitrary limit on the circumstances to justify
mitigation.
Ultimately, this is objective. There must be a reasonable explanation or
excuse.
The ultimate determination used by jurors should be a subjective
one that views the internal situation in which the defendant found
himself, and the external circumstances as he perceived them,
despite inaccuracies in them, and assess from that standpoint
whether his explanation or excuse was reasonable.
o MPC appears to have intended the jury to exercise a judgmental evaluation, then,
in lieu of the above method to determine EED. Jury may exercise empathy as it
seems fit.
The fact-finder is given discretionary power.
Ultimately
o MPC is subjective view, on this matter.
o Common law is objective view, on this matter.
Legal Wrong Doctrine
Under Common Law
o Works similarly to the Moral Wrong Doctrine, except that the term illegal is
substituted for immoral
If a defendants conduct, based on the facts as he believes them, constitutes a
crimenot simply an immoralityhe may be convicted of the more
serious offense that his conduct establishes in accordance with the beliefs at
play.
That is
 o You sell child pornography to a minor. You have good reason
to believe the minor is 18, but he is not. It is a felony to sell to
a minor, and a misdemeanor to sell to an adult.
Youre guilty of the felony. You are punished more
severely.
o Laymans terms
If you reasonably believe you are not in the wrong, but your conduct is
nevertheless illegal, you are still culpable
MITIGATION UNDER MPC 2.04 (2)
o If, despite your mistake, you still committed an illegal act, youre punished for the
lesser offense as opposed to the greater (using Legal Wrong Doctrine)

Mistake of Fact Defense

UNDER COMMON LAW
o You lack, in your actions, the appropriate mental state for culpability.
o Specific Intent Crimes
In these, the mistake of fact may sometimes mean, that while a person has
committed the physical element of an offence, because they were laboring
under a mistake of fact, they never formed the required mens rea, and so will
escape liability for offences that require a specific mens rea (specific intent).
If the mistake negates the intent, you are not culpable for the
specific intent portion
o This may not necessarily negate the general intent portion of
the crime. Reasonable or unreasonable.
o General intent crimes
Mistake of fact disproving the general intent portion will ONLY serve as a
defense if it is reasonable
Does not apply to strict liability offenses
Because yourestrictly liable!
UNDER MPC 2.04 (1)(a-b)
o As long as you negate the required culpability, as established by MPC statute for
that crime, you can use this defense.

Mistake of Law
UNDER COMMON LAW
o Not an excuse
o We dont care what your excuse it. Its not an excuse.
EXCEPTION
Ignorance of the Law as Defense Under Constitution
o Constitutional basis, and hardly ever enforceable
Due Process Standard.
o OR
o The defendants mistake of law must negate the specific
intent required under the statute, and in turn, will be
excused.
 Also must not be an issue of morality.
Examples of Both
o Lambert v. California (Due Process, Narrow Defense)
o Cheek v. United States (Negate Intent, Broad Defense)
o Weiss v. United States (Negate Intent, Broad Defense)
UNDER MPC 2.04 (3)(a-b)
o A mistake of law excuse may be acknowledged by a court when
There was reasonable reliance upon an official statement of the law, later
determined to be erroneous.
An official statement can be a lot of things; see (3)
o Official letterheadformality. An official, formal
statement made in ones formal and official capacity.

Omissions
Exceptions to the voluntary action aspect of Actus Reus
o They can serve as a basis for actus reus, making you guilty of failure to act.
More specifically, omission involves a failure to engage in a necessary bodily
movement resulting in injury.
o As with commission acts, omission acts can be reasoned causally using the but for
approach.
o But for not having acted, the injury would not have occurred.
Recognized Categories of Omission
o Statutory Duties
o Status Relationship (parent-child)
o Contractual Duty (often to care for someone)
o Voluntary assumption of care/prevent others from rendering aid
Im gonna save that person from drowning! Everyone else backs off
You get out there then say eh, never mind.
They drown
Youre guilty.
o YOU created the risk of harm, and failed to act.

Proportionality Requirement
Deadly force may not be used to repel a non-deadly attack, even if this is the only way
to avoid injury
o Example:
Joshua unlawfully threatens to strike Donald, and Donald can avoid this
by pushing Joshua. Donald may be justified, as pushing is a non-deadly
response to a non-deadly assault.
However, if the shove would likely cause death or serious bodily
injury to Joshua, for example, if Donald pushes him into oncoming
traffic on a busy street, then the common law requires Donald to
suffer the assault, rather than risk the death of Joshua. Is this fair?

Self-Defense and Battered Women Syndrome (Common Law)

 Old English common law taught that all homicide is malicious, and amounts to murder,
unless it is justified by:
o The command or permission of the law,
o Excused on account of accident or self-preservation, or
o Alleviated into manslaughter, by being either:
The involuntary consequence of some act not strictly lawful, or (if
voluntary)
Occasioned by some sudden and violent provocation.
Self-defense, as a legal doctrine that exonerates the taking of human life, is viable today
as it was in the time of common law.
o The law of self defense is a law of necessity.
The right of self-defense arises only when the necessity begins, and
equally ends with the necessity; and never must the necessity be greater
than when the force employed defensively is deadly.
The necessity must bear all semblance of reality and appear to
admit of no other alternative, before taking life will be justifiable
as excusable.
o Necessity and immanency are the key themes in self-defense.
There must have been
(1) A threat, actual or apparent, of the use of deadly force
against the defender.
(2) The threat must have been unlawful and immediate
(3) The defender must have believed that he was in imminent
peril of death or serious bodily harm, and that his response was
(4) Necessary to save himself therefrom.
(5) Force must be proportional
(6) Cannot be the aggressor
o These beliefs must not only have been honestly entertained, but also objectively
reasonable in light of the circumstances.
All of the above must be found for the defense to hold.
Generally, the right to use deadly force in self-defense is not ordinarily available to one
who provokes the conflict or is the aggressor.
o It has long been accepted that one cannot support a claim of self-defense by a
self-generated necessity to kill.
The right of homicidal self-defense is only granted to those free from
fault in the difficulty; it is denied to slayers who incite the fatal attack,
encourage the fatal quarrel, or otherwise promote the necessitous
occasion for taking life.
o If the deceased struck the first blow or fired the first shot, it does not legalize the
self-defense claim if in fact the claimant was the actual provoker.
In sum, one who is the aggressor in a conflict culminating in death cannot invoke the
necessities of self-preservation.
o Only in the event that he communicates to his adversary his attempt to
withdraw in good faith, and attempts to do so, is he restored to his right of
self-defense.
 A defensive killing is unnecessary if the occasion for it could have been
averted
Although there is no fixed rule on the matter, according to case law, an affirmative
unlawful act reasonably calculated to produce an affray foreboding injurious or fatal
consequences is an aggression which, unless renounced, nullifies the right of homicidal
self-defense.
o If a defendant reaches a place of safety, and then re-engages the aggressive party,
he is no longer able to claim self-defense. See Rowe and Laney cases (Pg 503 in
text).
He has become the aggressor.
o If a defendant engages in a more aggressive matter so far as proportionality to the
force being used goes (i.e. you push me lightly, I swing a baseball bat at your
face), the defendant can become the aggressor.
Duty to Retreat
o Under common law, there was the retreat to the wall rule.
Forbade the use of deadly force by one to whom an avenue for safe retreat
was open.
This doctrine was a way of requiring that there be strict necessity to
excuse the taking of human life, and worked to ensure that necessity.
Even the innocent victim of an assault had to elect to a safe retreat, if
available, rather than resort to defensive force that might kill or seriously
injure
o In most modern jurisdictions, one may stand his ground and use deadly force
whenever it seems reasonably necessary to save himself such as an instance of
self-defense (sometimes, even if retreat is available)
This does not apply to the aggressor. He cannot claim self-defense if
he started it, and is still the aggressor.
o There are exceptions to the retreat rule.
Even under common law, it was recognized that it was not completely
suited to all situations.
Today, it is more so that its precept must be adjusted to modern conditions
that did not exist in early common law times.
One such restriction is when the circumstances apparently
foreclose a withdrawal with safety.
o The doctrine of retreat was never intended to enhance the
risk to the innocent.
o Its proper application has never required a faultless victim
to increase his assailants safety at the expense of his own.
o On the contrary, he could stand his ground and use deadly
force otherwise appropriate if the alternative were perilous,
or if to him, it reasonably appeared to be.
o The Castle Doctrine.
If one, through no fault of his own, is attacked in his home, he has no duty
to retreat.
 This doctrine has been found by many courts to encompass the
curtilage of ones home as well.
Remember, though, The right of self-defense cannot be claimed by the
aggressor so long as that role is unmitigated
Any rule of no-retreat, which may protect an innocent victim of
the affray, would be unavailable to the party who provokes or
stimulates the conflict.
o Accordingly, the law is well settled that the castle
doctrine can be invoked only by one who is without fault
in bringing the conflict on.
Proportionality Requirement
o Deadly force may not be used to repel a non-deadly attack, even if this is the
only way to avoid injury
Example:
Joshua unlawfully threatens to strike Donald, and Donald can
avoid this by pushing Joshua. Donald may be justified, as pushing
is a non-deadly response to a non-deadly assault.
o However, if the shove would likely cause death or serious
bodily injury to Joshua, for example, if Donald pushes him
into oncoming traffic on a busy street, then the common
law requires Donald to suffer the assault, rather than risk
the death of Joshua. Is this fair?
Expanding Self-Defense Law
o Some states have expanded their self-defense provisions, such as Floridas Stand
Your Ground Law.
Self-Defense Rationale
o Killing in self-protection during Blackstones time (common-law) was an
excusable homicide, based on the great universal principle of self-preservation,
which prompts every man to save his own life preferably to that of another, where
one of them must inevitably perish.
This is in contrast to the modern view in which the taking of the life of
the aggressor is justifiable.
Objective or Subjective interpretation? Both?
o In Goetz case, the Court of Appeals reversed and held than an objective standard
should be used in interpreting reasonableness.
A subjective one is improper, according to the Court in that case, as it
would allow people to set their own standards for justice.
Court also held that while the standard used must be objective, it must still
take into consideration the totality of circumstances. However, the court
made special note that in doing so, it had to look at what the victim knew
about the offenders at hand. Specifically those offenders.
If, knowing what he knew about THOSE offenders, a
reasonable person wouldve reacted the same way.
 Not his personal views on all offenders. That is to say, if he was
scared of black people in general, that wouldnt justify his actions.
That would open up a whole new can of worms.
o Rather, knowing what he knew in THIS SITUATION
about THOSE SPECIFIC PEOPLE (were they armed?
Did they appear armed? Did they act in a threatening
manner) was to be CONSIDERED within the bounds of
reasonableness.
o In Wanrow case, the Court reversed and held that an entirely objective standard
is not necessarily proper, as depending on the circumstances, a subjective
approach may be warranted.
The justification of self-defense is to be evaluated in light of all of the
facts and circumstances known to the defendant, including those
known even substantially before the killing.
Consequently, viewing the situation subjectively from the eyes of
the defendant is necessary in order for the jury to justly convict or
acquit.
o Differing views and differing interpretations across jurisdictions, and dependent
upon the wording of the statutes. Keep the different approaches in mind, but
always remember to READ THE DAMN STATUTES.
Unreasonable Belief: Imperfect Defense?
o The negative implication of the reasonable-belief rule is that a person who acts on
the basis of genuine, but unreasonable, belief that deadly force is necessary for
self-protection cannot successfully claims self-defense.
Thus, an actor who mistakenly kills an innocent person or who uses more
force than necessary to combat real aggression will be acquitted if her
mistake was reasonable, but will be convicted of murder if her mistake
was unreasonable.
o To mitigate the above issue, many states recognize imperfect or incomplete
justification defenses.
In these jurisdictions, a defendant is guilty of manslaughter, rather than
murder, if she kills the decedent while harboring a genuine, but
unreasonable, belief that the decedent constitutes an imminent threat
to her life.
Battered Person/Spouse/Womens Defense/Syndrome
The battered person syndrome first rose to prominence in the 1970s, when it was used as
a legal defense for abused women who murdered their husbands in a pre-meditated
fashion.
Defense lawyers used the syndrome to explain premeditation as follows: the woman
could not leave the relationship due to learned helplessness. Nor could they fight back
when actually being attacked.
o In the face of increasing violence, the woman's belief was that the only way she
could protect herself and her children was to eliminate the partner.
In recent years BPS has been questioned as a legal defense on several grounds.
 o First, legal changes in many states now make it possible to admit a history of past
abuse into evidence.
o Second, not all battered women act the same.
o Third, it pleads pathology when there may in fact be completely rational reasons
for the victim's assessment that her life or that of her children was in danger.
For example, if life-threatening attacks were preceded by a certain look in
the eyes in the past, the woman may have had probable cause for believing
that another life-threatening attack was likely to occur.
o Fourth, it does not provide for the possibility that a person may be abused but
have chosen to kill for reasons other than on-going abuse for example, jealousy
or greed.
o Fifth, it paints survivors of domestic violence exclusively as passive victims
rather than resourceful survivors
Battered Women Syndrome/Battered Spouse Syndrome/Abused Spouse Syndrome
o Refers to situations where one spouse has achieved almost complete control and
submission of the other by both psychological and physical domination.
It is usually seen in females who do not have a strong sense of their own
adequacy or who do not have a lot of personal or occupational resources
It is usually associated with physical abuse over a long period of time, and
the abused spouse comes to believe that the other person is complete
control
That they themselves are worthless, and they cannot get away.
That there is no rescue from the other person.
o Three Phases
Tension-Building
Violent
Traditionally the time when self-defense would mandate the
defendant protect herself; the moment of being attacked
However, hardest time to do so. Immobilized by fear, perhaps. Or
physically restrained.
Quiet or Loving
o Court in Norman found that there are certain instances where a battered spouse
can kill a passive victim and still claim it was self-defense, such as the
circumstances in that case.
In such circumstances, passivity of the abuser may be the only chance the
victim (defendant) has to act. To ignore this reality would ignore the
realities of the condition, and be unjust.
The Norman court found that the decedents being asleep was but a
momentary hiatus in a continuous reign of terror.
The testimony and evidence showed that a reasonable mind
would infer the defendant did not use more force than necessary
to, under her circumstances, protect herself from death.
The Imminency Requirement and Battered Women
o Self-defense law contains a necessity elementdeadly force against an aggressor
may not be used unless it is necessary.
 So why bother with the imminency requirement?
Alternatives for victim? Leave? Shelter?
o But what if those options dont exist?
Is preemptive self-defense justifiable?
Imminency is conceptually tied to self-defense by staking out the type
of threats that constitute aggression.
o Argument Against
The decision to use force against another person must be made by an
objective and disinterested authority.
The state should reserve the right to use retaliatory force (punitive) against
past harm, as well as preemptive/preventive force against future harm
The single exception to this principle is where the immediacy of the threat
rendered it impossible to resort to external protection, and thus licensed
self-help.
Even in such cases, notably, the state has always reserved the
right to be the arbiter after the fact as to whether the defensive
force used was justified from an impartial perspective.
Other Justifying Theories
o What about defense against psychological degradation?
It has been proposed that the law permit the use of deadly force to prevent
serious psychological injury
o Can you justify a killing when escape was possible if escape had repeatedly failed
before, thus making escape seemingly impossible? If it is ok for a kidnapped
person to use deadly force to escape, why not a battered spouse?
Courts remain divided on this matter. Some accept it as a defense/justification to
permit a self-defense instruction or defense pleading, while some do not.

Solicitation
(Common Law)
Generally, it occurs when a person invites, requests, commands, hires, or encourages
another to engage in conduct constituting any felony, or a misdemeanor relating to
obstruction of justice or a breach of the peace
o Under Common Law, this is a misdemeanor, regardless of the grade of
the offense solicited
Until the adoption of the MPC, most state penal codes did not contain a general
criminal solicitation statute
o Instead, solicitation to commit specific offenses were prohibited
o As a result of the MPCs influence, many states now have a general
solicitation statute that covers all crimes, or at least, all felonies
However, many of these states have followed the common law approach of treating
solicitation as a lesser offense than the crime solicited
Mens Rea
o Common law solicitation is a specific intent crime
A person is not guilty of it unless he intentionally commits the actus
reus of the offensehe intentionally invites, requests, commands,
 hires, or encourages another to commit a crimewith the specific
intent that the other person consummate the solicited crime
Example
o D1 is not guilty of solicitation of he jokingly suggest to
X1 that he steal V1s iPod, even if X1 actually does it
Actus Reus
o In regard to solicitation, this takes place when one person invites, request,
commands, hires, or encourages another to commit a particular offense
Only the request is necessary to prove the actus reus
For a solicitation to occur, neither the solicitor nor the solicited party
needs to perform any act in furtherance of the targeted offense
The solicitation is complete the instant the actor communicates
the solicitation to the other person
o What about uncommunicated solicitations?
Court holdings suggest that if the solicitation never reached the
intended solicitee, then no conviction can be made
Attempted solicitation may be possible, however
NOTE that at common law
o Asking someone to help you commit a crime is not solicitation. Only asking
someone to do it himself is solicitation!
o It is not solicitation when you are going to commit a crime yourself, and you
are merely asking for assistance
Solicitation requires that you as someone else to actually commit a
crime when you are not participating

Relationship of Solicitor to Solicitee

In common law terms, the solicitor intends for the solicitee to be the principal in the
first degreethe perpetratorof the solicited crime. The solicitor wishes to be the
principal in the second degree or accessory before the fact
o Basically, the essence of criminal solicitation is an attempt by the solicitor to
include another to commit a criminal offense
The solicitor intends to be in the background, hiding behind his hirelings
as an accomplice
Although there is little case law on the matter, it appears that solicitation of a solicitation
is a common law solicitation
o Example: If D solicits X to solicit Y to kill Z

Use of an Innocent Instrumentality

A person may sometimes use another as his innocent instrumentality
o It is critical to know the difference between using another to commit and
offense, and using an innocent instrumentality
For example
o D tells X to steal Vs iPodD is guilty of solicitation
X is the perpetrator, D is the solicitor
 o D tells X that his iPod is at Vs house, and D has permission to go retrieve it. But
he asks X to retrieve it for him as a favor
D is not guilty of solicitation to commit larceny, because he is not
suggesting that X intentionally commit an illegal act. Rather, D is
attempting to perpetrate the offense himself, but by duping X into doing it
for him
X is Ds innocent instrumentality because if he believes Ds lies
and takes the iPod, he is not guilty of larceny because he lacked
the specific intent to steal.
D is the perpetrator here

Relationship of a Solicitation to the Target Offense

Solicitation is not only an inchoate (partial, rudimentary)the crime of solicitationbut
is also a basis for accomplice liability
o That is, one who intentionally assists in an offense is, by way of accomplice
law, guilty of the offense in which he assisted.
Solicitation of a substantive offense is one way of assisting in an offense and therefore, of
being held accountable for the others criminal acts
Examples
o D tells X to murder Y, and X does so.
D is guilty of murder via the solicitation
However, D will not be punished for solicitation of murder, as the crime
merges with the crime of murder
o X tries to murder Y because of Ds request, but fails
D, and X, are guilty of attempted murder. D is not guilty of solicitation, as
the crime merges with the crime of attempt
o D solicits X to murder Y. X agrees, but doesnt take any further action.
D and X are guilty of conspiracy to murder Y. D is not guilty of
solicitation, as the crime merges with the crime of conspiracy
o X refuses to commit the murder requested by D
D is guilty of solicitation.

Policy Considerations
Solicitation is controversial
o Some argue that it should not be punished because its too early to be a crime
In line with this reasoning, no common law crime (except attempted
solicitation) punishes conduct more preparatory to a substantive defense
than solicitation does
o The extremely inchoate nature of the crime of solicitation is evident if one
carefully analyzes the offense
Solicitation is essentially an attempted conspiracy
That is, when D tells X to commit an offense, he wants X to agree.
If he does, they have formed a conspiracy
o A conspiracy can exist long before a crime is actually
committed
 Thus, solicitation is an attempt to conspire to commit an offensea
double inchoate crimeand thus, an attempted solicitation is a triple
inchoate offense
Inchoate- basic, rudimentary
Double-Inchoate- really, really preparatory
Triple-Inchoate- does this even count?
o Double and triple inchoate offenses bring us closer and
closer to punishing thought. You can ask someone to help
you kill someone, and if they never get the message, thats
a case of failed (attempted) solicitation.
o The contrasting view is that solicitations are dangerous because they are
attempted conspiracies
One rational for punishing conspiracy is that there is more danger in two
or more persons agreeing to commit a crime than in one planning to do the
same offense
Therefore, when a solicitor attempts to create such a dangerous
group, his conduct represents a threat that advocates of the offense
believe society has a legitimate interest in deterring
Moreover, it has been argued that solicitation posed special dangers not
inherent in conspiracy, one of which is that the instigator will be a
sophisticated operator, such as a gang leader, who will hide behind his
hireling(s).
This therefore justifies more severe penalties for a solicitation than
for conspiracy or criminal attempt

Solicitation (MPC)
The MPC provides that a person is guilty of solicitation to commit a crime if
o The actors purpose is to promote or facilitate the commission of a substantive
offense; AND
o With such purpose, he commands, encourages, or requests another person to
engage in conduct that would constitute the crime, an attempt to commit it, or
would establish the other persons complicity in its commission or attempted
commission
The MPC grades nearly all inchoate crimes, including solicitation, at the same level as
the target offense
The MPCs definition of solicitation is broader than common law in four ways
o (1) It applies to the solicitation of all crimes and not simply felonies and serious
misdemeanors
o (2) Under the MPC, one can be guilty of solicitation of an attempt
D solicits X into what D knows is Ys empty pocket. If X does as
requested, he is guilty of attempted larceny, and D is guilty of solicitation
of an attempted larceny
Under common law, and D would not be guilty of anything
because he didnt actually intend for X to commit larceny (he
knew the pocket was empty).
 D solicited X to engage in specific conduct that would constitute an
attempt to commit such crime
Despite knowing the pocket was empty, he solicited X into
attempting to rob Y
o (3) The relationship of the solicitor to the solicited party need not be that of the
accomplice to perpetrator
D asks X to give him a weapon so he can kill Y
Under the MPC, D is guilty of solicitation of murder because he
has requested X to engage in specific conduct that would establish
complicity in its commission or attempted commission. (He
solicited actions and assistance by X that would permit the murder
to occur, and therefore, solicited murder).
o Under common law, D did not solicit a murder, because
he did not request that X perpetrate the offense
o (4) An uncommunicated solicitation, perhaps no more than an attempted
solicitation at common law, is a solicitation under the Code
Defense: Renunciation
o The MPC establishes a defense to solicitation: renunciation of criminal purpose
A person is not guilty of solicitation if he
Completely and voluntarily renounces his criminal intent; AND
Either persuades the solicited party not to commit the offense, or
otherwise prevents him from committing the crime
o This defense is recognized for the same reason that it applies to other inchoate
offenses of attempt and conspiracy
A person who abandons his criminal purpose and thwarts the commission
of the offense demonstrates thereby that he is no longer dangerous
o Establishment of the defense also serves as an incentive to the solicitor to prevent
commission of the crime
Criminal Attempt
Can solicitation constitute an attempt to commit a solicited crime?
o That is, if D solicits X into robbing Y, under what circumstances, if any, may D
be convicted of attempted robbery, rather than solicitation?
There are various approaches to this issue
o The majority of courts state that solicitation by itself cannot constitute an
attempt to commit the offense solicited
A minority provide that it can, subject to ordinary attempt doctrines
Under the minority basis, a solicitation that is proximate to the
target offense may constitute an attempt to commit it
o For example, D solicits unarmed X to murder Y when Y
returns home from vacation. Ds conduct is not an attempt
because it is too remote
BUT, if D solicits X, who is armed and in Ys
presence, to shoot Y immediately, Ds solicitation
could constitute an attempt.
 o Some courts hold that solicitation, coupled with a slight act in furtherance
of it by the solicitor is an attempt
That is, if D solicits X to sell him an illegal drug, and then displays or
proffers the money, the solicitation has become an attempt.
Likewise, if D pays X to kill Y, or gives X the weapon, D is guilty of
attempt even if X does nothing further, and even if X is an undercover
police officer who never wouldve done it.
o Some courts hold that a solicitation is not attempt unless the solicitors overt
acts would constitute an attempt if he had intended to commit the crime
himself.
D pays X to commit a crime, or furnishes him with an instrument to do so.
D is not guilty of attempt
D solicits X to burglarize Ys home, and then opens a window at Ys
home for Xs later entry
D would be guilty of attempted burglary, even if X never shows
o Some courts hold that no matter what acts the solicitor commits, he cannot be
guilty of attempt because it is not his purpose to commit the offense
personally.
Remember, all of the above reasonings must be distinguished from innocent
instrumentalities
o Going back to the my iPod is at his house example from earlier
D is not guilty of solicitation because hes not asking X to commit larceny.
Hes trying to steal the iPod by duping X into doing it for him. Although
D is not soliciting X, his actions plausibly constitute an attempt to commit
the offense solicited. D has committed the last act in his power to cause
the property to be stolen.
Moreover, his conduct is in this example is more proximate to the
theft than a solicitation, because X is more likely to agree to Ds
request when he believes he is acting lawfully as opposed to
knowingly committing a criminal act.

Specific Intent
There is always a general intent component, plus an additional intent that is specified, i.e.
to cause permanent damage.
An offense that contains in its definition the mens rea element of intent or perhaps
knowledge
Designates a special mental element which is required above and beyond any mental state
required with respect to the actus reus of the crime.
One of three types of elements typically found in defining specific intent crimes
o To be guilty of some offenses, the State must prove an intention by the actor to
commit some future act, separate from the actus reus of the offense
Possession of meth with intent to sell
o An offense may require proof of a special motive or purpose for committing the
actus reus
Offensive contact upon another with the intent to cause humiliation
 Some offenses require proof of the actors awareness of an attendant circumstance
o Intentional sale of obscene literature to a person known to be under the age of 18
The crime requires proof that the actors conscious object, or purpose, is to
cause the social harm set out in the definition of the offense.

MENS REA: SPECIFIC INTENT CRIMES

A crime may require not only the doing of an act, but also the doing of it with a specific
intent or objective. The existence of a specific intent cannot be inferred from the doing of the
act. The major specific intent crimes and the intents they require are as follows:
a. Solicitation: Intent to have the person solicited commit the crime.
b. Attempt: Intent to complete the crime.
c. Conspiracy: Intent to have the crime completed.
d. First degree premeditated murder: Premeditation.
e. Assault: Intent to commit a battery.
f. Larceny and robbery: Intent to permanently deprive another of his interest in the
property taken.
g. Burglary: Intent to commit a felony in the dwelling.
h. Forgery: Intent to defraud.
i. False pretenses: Intent to defraud.
j. Embezzlement: Intent to defraud.

NOTE: Attempt is always a specific intent

Negligence and Unintentional Homicide
o Parental duty to care for a minor is a natural duty under common law
At common law, in the case of involuntary manslaughter
The breach had to amount to more than mere ordinary or
simple negligencegross negligence was essential.
o In Washington (see State v. Williams), the crime is deemed committed whether
the victim dies as result of simple or ordinary negligence as well. This
supersedes the general definition above.
The concept of ordinary negligence describes a failure to exercise the ordinary caution
necessary to make out the defense of excusable homicide
o Ordinary caution is the kind of caution that a man of reasonable prudence would
exercise under the same or similar conditions
If, therefore, the conduct of a defendant, regardless of his ignorance, good
intentions, and good faith, fails to measure up to the conduct required of a
man of reasonable prudence, he is guilty of ordinary negligence because of
his failure to use ordinary caution.
If this negligence causes the death of the victim, the defendant is
guilty of statutory manslaughter.
If the a duty to furnish medical care, for example, was not activated until it was too late
to save the life in jeopardy, then the failure to do so is not the proximate cause of death.
o Timeliness in such a situation must also be considered in terms of ordinary
caution.
 If one in the exercise of ordinary caution fails to recognize that his childs symptoms, for
example, require medical attention, it cannot be said that the failure to obtain such
medical attention is a breach of the duty owed.
Criminal Negligence vs. Civil Negligence
o Criminal requires the jury to find negligence so gross as to merit not just
damages, but also punishment.
The MPC on Negligence
o The MPC says
When people have knowledge that conviction and sentence, not to speak
of punishment, may follow conduct that inadvertently creates improper
risk, they are supplied with an additional motive to take care before acting,
to use their faculties and draw on their experience in gauging the
potentialities of completed conduct
To some extent, at least, this motive may promote awareness
and thus be effective as a measure of control.

General Intent
No particular mental state is set out in the definition of the crime, and therefore, the
prosecutor need only prove that the actus reus of the offense was performed with a
morally blameworthy state of mind; does not specify.
o Reserved for crimes that permit conviction on the basis of a less culpable mental
state, such as recklessness or negligence
You had a general decision to actyou had in your mind the intent to act, and did just
that.
Can also mean any mental state, whether expressed or implied, in the definition of the
offense that relates solely to the acts that constitute the social harm of the criminal
offense.
o When an actor can be convicted upon proof of any lesser state of mind, such as
when he causes the harm knowingly, recklessly, or negligently.
The MPC and Mens Rea (Section 2.02)
o Elemental approach/Analysis
Statutory approach
Prosecutor must prove that the defendant committed each material element
of the charged offense with the particular state of mind required in the
definition of that crime, as articulated by legislature
Abandons the countless common law and pre-Code statutory mens rea
terms, replacing them with just four culpability terms
o Purposely
A person acts purposely if it is his conscious object to engage in conduct
of that nature or to a cause such a result
It is his conscious object to engage in conduct of that nature or to
cause such a result; AND
He is aware of the existence of such circumstances or he believes
or hopes they exist
You intend for what youre trying to accomplish, to happen.
 o Knowingly
A person acts knowingly when
He is aware that his conduct is of that nature or that such
circumstances exist; AND
He is aware that it is practically certain that his conduct will cause
such a result
You think with good reason that it will happen, but youre not intending
for it to purposely occur.
o Recklessly
Conscious disregard of a substantial and unjustified risk that the material
element exists or will result from his conduct
You know there is a risk here.
A risk is substantial and unjustifiable if considering the nature and
purpose of the actors conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actors
situation.
o Involves conscious risk creation
Resembles acting knowingly in that a state of
awareness is involved, but the awareness is of risk,
that is of a probability less than substantial
certainty; the matter is contingent from the actors
point of view.
The risk of which the actor is aware must of course be substantial
in order for the recklessness judgment to be made.
o The risk also must be unjustifiable.
Deviation from the reasonable standard.
o Negligently
Negligence requires a substantial and unjustifiable risk
The negligent actor, however, consciously disregards the risk
inadvertently, rather than consciously
It does not involve a state of awareness (but you should be aware
by the reasonable persons standard of care).
o A person acts negligently under this when he inadvertently
creates a substantial and unjustifiable risk of which he
ought to be aware.
o He is liable if, given the nature and degree of the risk, his
failure to perceive it is, considering the nature and purpose
of the actors conduct and the circumstances known to him,
a gross deviation form the care that would be exercised by
a reasonable person in his situation

Strict Liability
In Strict Liability Offenses, criminal liability may attach without fault
o Most common example is statutory rape
 It doesnt matter if you knew their age or didnt, or were mistaken
somehow. You are still guilty on just an actus reus.
o IN ALL OTHER OFFFENSES (NON-Strict Liability)
The court must look for whether or not the legislature actually
intended for no mens rea to exist in these non-explicit situations.
They will, at the very least, read in the lowest level of
culpability and work their way up.
o Another common exception to mens rea are cases involving the Public Welfare
Exception Doctrine
Issues that concern the collective interests of society, and the importance
of their preservation, and ones in which the mens rea principle is not really
invoked.
Anti-drug laws
Food purity laws
Liquor laws
Traffic regulations
Building codes
If the penalty is a light one, such as a small fine, then a mens rea is
probably not required
o Remember: when the punishment far outweighs regulation of social order as a
purpose of the law in question, then a mens rea is probably required.
o There are Strict Liability Offenses that require a degree of culpability
In those, instances a mens rea that applies to some, but not all, elements of
the crime
In such scenarios, the elements of the crime that do NOT require a
mens rea are known as attendant circumstances
o In SLO where there is no mens rea component
There is no basis for acquittal on grounds of mistake of fact or law.
o Criticism of SL
Does not deter, since the actor is unaware, and as a reasonable
person, would not be aware, of the facts that render his conduct
dangerous
A person engaged in a certain kind of activity would be more
careful doing it because they know of the SL mandate over it
o More cautious criminals as consequence
Could keep a large class of people from engaging in activities at all
if they do not believe that they are capable of conducting
themselves in such a way so as not to produce the consequences of
the applicable statute to their actions
o BUT if the penalties are minimal, which for many SL
offenses they are, then most people wouldnt be deterred
and would do it anyway.
Unjust to condemn a person who is not morally culpable
Yet mens rea is removed from these offenses.
 o This is not compatible with the longstanding principles of
CJ
Is the proposition descriptive, or prescriptive
o That is, is it incompatible with the accepted values of
society (descriptive), or is it inconsistent with what ought to
be accepted values (prescriptive)
o Becoming more and more commonaccepted by society?
It may be that the community should condemn them, but it is doubtful they
are presently held in such contempt.
o Constitutional?
Mens rea is important, but it is not a constitutional requirementexcept
sometimes?
Constitutional Innocence
It is constitutional when, but only when, the intentional (parts
culpability aspect) conduct covered by the statute could be made
criminal by the legislature
o In other words, SL violates the Constitution (and due
process) if the other elements of the crime, excluding the
strict liability ones, could not themselves be made a
crime.
o Otherwise, it is constitutional.
The Willful Blindness Doctrine
o In the MPCs definition of knowingly, it includes this.
It says you can knowingly do something if it can be proven you were
aware, but deliberately turned the other way and avoided learning the
truth. Deliberately avoiding guilty knowledge is all the guilty
knowledge needed to convict.
However, you cannot be found to have knowingly done ___ if it is
proven that you truly believed whatever the truth was, was not the
case/happening, or were in fact just careless.
Basically, under this, you are making knowledge/reckless definitions
synonymous to one another
The specificity of definition by legislature gives and takes
discretionary power from courts. It is important to keep this in
mind when analyzing tricky cases.
o Willful (in MPC)
Actor intentionally committed the prohibited act
Or
Actor intentionally performed the prohibited act in bad faith, with a
wrongful motive, or in violation of a known legal duty.

Voluntary/Involuntary Manslaughter
Some risk taking is socially neutral, or even desirable. Other risk taking is not.
o Some results in harm that will justify a judgment against the risk-taker, and some
results in harm that results in criminal liability.
 When does risk taking that results in the death of a human being constitute the
crime of murder, as distinguished from manslaughter?
Common law and some states draw a line between risk-takings via mens rea using terms
like
o Depraved heart
o Abandoned and malignant heart
o State of mind that form malice aforethought (murder)
o State of mind that is less culpable, i.e. grossly negligent
(manslaughter/involuntary manslaughter)
Second-degree murder is the unlawful killing of a human being with malice
aforethought, but without elements of premeditation, willfulness, and deliberation.
o Malice is implied, when no considerable provocation appears, or when the
circumstances of the killing show an abandoned and malignant heart.
Implies an evil person, but instead is focusing on defendants awareness
of the risk created by his or her behavior.
o Implied malice requires a defendants awareness of the risk of death to
another.
o Subjective (what the defendant knows) and Objective (how likely the
outcome is) tests
Malice is implied when (California Tests)
The Thomas Test
o The defendant, for a base, antisocial motive and with
wanton disregard for human life, does an act that involves
a high degree of probability that it will result in death
The Phillips Test (similar but more clear and straightforward)
o An act, the neutral consequences of which are dangerous
to life, which act was deliberately performed by a person
who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.
Manslaughter at Common Law
o Its the unlawful killing of another human being without malice aforethought
o At American common law, there are two kinds of manslaughter:
Voluntary
A killing that would otherwise be murder but is distinguishable
from murder by the existence of adequate provocation
o At the time of the killing, the defendant must have been
acting under a provocation that would arouse sudden
and intense passion in the mind of an ordinary person so
as to cause him to lose self-control, with an insufficient
time between provocation and the killing for the
passions of a reasonable person to cool
Involuntary
When a death is caused by criminal negligence.
o There is negligence when a person fails to be aware that
a substantial and unjustifiable risk exists or that a result
 will follow, and such failure constitutes a substantial
deviation from the standard of care that a reasonable
person would exercise under the circumstances
Criminal negligence requires a greater deviation
from the reasonable person standard than is
required for civil liability.
Common Law and Implied Malice
o Treats the state of mind as just as blameworthy, just as anti-social, and therefore,
just as truly murderous.
o Many courts require that the actor subjectively knew that he/she was taking an
unjustifiable risk to human life.
Some hold that it is enough to show that the defendant should have been
aware of the serious risk to life

THE MPC VIEW

o Does not describe murder like the common law, and its depraved heart
language, but rather with the term recklessness
The code has reckless murder, and reckless manslaughter.
In a prosecution for murder, the Code calls for the further
judgment of whether the actors conscious disregard of the risk,
under the circumstances, manifests extreme indifference to the
value of human life.
The court must determine if the recklessness is this extreme
o Less extreme should be treated as manslaughter.
Intent to Cause Grievous Bodily Injury
o At common law, a person acts with malice aforethought, and is therefore guilty
of murder, if, with the intent to cause serious bodily injury, accidentally kills
another.
Under MPC, however,
The intent to cause extreme harm is not considered as it is under
common law. The deletion of intent to injure as an independently
sufficient culpability for murder rests on the judgment that it is
preferable to handle such cases under the standards of
recklessness and extreme recklessness, as defined in other
sections of the code.
o The actors intent is RELEVANT in determining whether
he acted with extreme indifference to the value of life or
recklessly
Therefore, the MPC differs in this interpretation in that it takes the
intent to cause harm as a relevant consideration in determining a
degree of recklessness according to its proposed forms. It uses a
standard of recklessness
Negligence and Unintentional Homicide
o Parental duty to care for a minor is a natural duty under common law
At common law, in the case of involuntary manslaughter
 The breach had to amount to more than mere ordinary or
simple negligencegross negligence was essential.
o In Washington (see State v. Williams), the crime is deemed committed whether
the victim dies as result of simple or ordinary negligence as well. This
supersedes the general definition above.
The concept of ordinary negligence describes a failure to exercise the ordinary caution
necessary to make out the defense of excusable homicide
o Ordinary caution is the kind of caution that a man of reasonable prudence would
exercise under the same or similar conditions
If, therefore, the conduct of a defendant, regardless of his ignorance, good
intentions, and good faith, fails to measure up to the conduct required
of a man of reasonable prudence, he is guilty of ordinary negligence
because of his failure to use ordinary caution.
If this negligence causes the death of the victim, the defendant is
guilty of statutory manslaughter.
If the a duty to furnish medical care, for example, was not activated until it was too late
to save the life in jeopardy, then the failure to do so is not the proximate cause of death.
o Timeliness in such a situation must also be considered in terms of ordinary
caution.
If one in the exercise of ordinary caution fails to recognize that his childs symptoms, for
example, require medical attention, it cannot be said that the failure to obtain such
medical attention is a breach of the duty owed.
Criminal Negligence vs. Civil Negligence
o Criminal requires the jury to find negligence so gross as to merit not just
damages, but also punishment.
The MPC on Negligence
o The MPC says
When people have knowledge that conviction and sentence, not to speak
of punishment, may follow conduct that inadvertently creates improper
risk, they are supplied with an additional motive to take care before acting,
to use their faculties and draw on their experience in gauging the
potentialities of completed conduct
To some extent, at least, this motive may promote awareness
and thus be effective as a measure of control.
o The MPC disagrees with this other argument
Inadvertent negligence is not a sufficient basis for criminal conviction,
both on the utilitarian ground that threatened sanctions cannot influence
the inadvertent actor, AND on the moral grounds that criminal punishment
should be reserved for cases of conscious fault.
Utilitarian
o Actor didnt perceive the risks, and therefore cannot be
deterred from risk creation
Moral
o Legitimacy of criminal condemnation is premised upon
personal accountability of the sort that is usually and
 properly measured by an estimate of the actors willingness
consciously to violate established societal norms.
Negligence and Morality
o Scholars have argued that
We are not morally culpable for taking risks of which we are unaware.
At any point in time, we are failing to notice a great many things,
forget a great many things, and are misinformed or uninformed
about a lot as well.
o Even the most concerned individuals will fall prey to this
reality.
Should we be punished because we just didnt think?
o Culpability for failure to exercise proper self-control or rational thought.
What about non-willful ignorance?
An actor who is non-willfully ignorant allows desire to preclude
him from forming the belief that he is imposing a risk of death
when the evidence available to him supports the formation of that
belief
Alternatively, an actor who is self-deceived forms that belief, but
allows desire to prevent him from becoming aware of it.
o In either case, the actor could and should have controlled
the wayward desire, thereby allowing the relevant belief
to form and surface into awareness.
o There are important differences, according to some scholars, that exist between
raising an eyebrow and putting a man in jail
Blame may be appropriate in some cases of negligence, but punishment
may not be.

A. How Much Punishment/Why

a. 8th Amendment
i. Bars cruel and unusual/excessive and barbaric punishment
ii. Often used in cases of death penalty
iii. Is it fair? Is it proportionate?
1. Not always
2. Argument for death due to rape, for example, is that rape is
reprehensible and vile. Causes permanent suffering.
3. Argument against it says for rape, even in cases of children, death
is not a fair punishment. Excessive. No life was taken.
iv. By making the punishment for murder and rape equivalent, it may remove
incentive for rapist not to kill victim
B. Influential Circumstances?
a. Aggravating Circumstances
i. Heavily influence punishment
ii. How young victim was, how heinous the crime was
1. I.e. torture
b. Mitigating Circumstances
 i. Not a repeat offender
ii. Not v iolently carried out (crime)

C. Mixed Theories of Punishment

a. US Criminal Law System is not consistent philosophically
i. Some rules are retributive
ii. Others are utilitarian
iii. Courts find both attractive
b. Many scholars find both attractive as well
c. What is the justifying aim of criminal law?
i. To punish? To prevent?
ii. Who is responsible? How much should they be punished?
d. The general aim, often argued, is to deter unwanted behavior, but retributive
concepts should be applied in determining whether and how much to punish.
i. D is mentally ill. He kills V. The hybrid penal system says that criminal
homicide statutes were enacted to deter unjustified killings. D should only
be punished if morally blameworthy. Even so, it should be in proportion to
his moral desert (retribution) and not to his future dangerousness
(utilitarianism)
e. Model Penal Code on the topic
i. Promotes a version of so-called limiting retributivism
1. Pursuant to retributive thought, punishment should be proportional
to the crime and the criminals blameworthiness
2. Retributivists, however, cannot realistically ID the precise amount
of punishment deserved in any particular case. Just a range of
severity of proportional punishment
a. Not too little, not too much.
ii. Some would argue that punishment should never exceed that which is
retributively justifiable, BUT
1. It is permissible to inflict less punishment than deserved IF there is
no good utilitarian justification for the punishment.

D. Theories of Punishment
a. Utilitarianism
i. A form of consequentialism, which holds that the justification of a practice
depends only on its consequences
ii. The purpose of laws is to maximize the happiness of society
iii. Laws should be used to exclude, as far as possible, all painful or
unpleasant events
iv. Belief that the pain inflicted by punishment is justifiable if, but only if, it
will result in a reduction in the pain that would otherwise occur
1. Ex
a. Causing D 5 hours of pain is justifiable if it would prevent
5 hours of pain from being caused if not for D being
punished.
 v. Stresses general deterrence
1. D is punished to convince others to avoid criminal conduct. D is a
lesson for the rest of society. Instills fear of punishment. To a
limited extent, creates habitual law abiders, even if theres no
present fear of punishment
vi. Individual Deterrence
1. By punishing D, a clear reminder is sent against future offenses by
him. Scare him straight.
a. Incapacitation
i. Lock him up to keep him from offending again.
b. Rehabilitation
i. Reduce future crime by reforming the wrongdoer,
rather than scare them into being good.
ii. Psychiatric care, therapy for drug addiction,
academic/vocational training.
b. Classical Utilitarianism
i. Founded on the belief that the threat or imposition of punishment can
reduce crime
1. Humans generally act hedonistically and rationally
2. A person will act in accordance with his immediate desires to the
extent he or she believes that their conduct will augment his or her
overall happiness
3. Accordingly, a criminal will avoid crime if the potential pain and
consequence outweighs the potential reward
ii. This assumes, of course, that the offender would know the potential
consequences of his or her actions, and thinks rationally
c. Retributivism
i. Based on dual premise
1. Humans possess free will
2. Punishment is justified when deserved
ii. Assaultive Retribution/Public Vengeance/Societal Retaliation
1. It is moral to hate criminals
2. The criminal has harmed us, we must harm him back
3. Argues that the urge for retaliation is gratified
4. Basically
a. Form of utilitarianism. Defends punishment to deter private
revenge.
iii. Protective Retribution
1. Punishment is inflicted because it is a means of securing a moral
balance. Not to cause harm.
2. A criminal owes a debt to society because they are abdicated their
part in the moral balance that exists among the rest of it
3. It is fair, then, to ask for payment
a. Punishment is payment
b. Punishment is retribution
 4. Punishment equal or proportionate to the debt owed (severity of
crime) is just
a. By punishing the wrongdoer, society shows its respect for
him. The criminal is morally blameworthy. He has a right
to be punished.
b. Punishment pays the debt, and allows the criminal to return
to society free of moral guilt/stigma
Scully Handout Statutes

Homicide
First degree murder is defined as any willful killing of another human being
committed with premeditation or deliberation
Second degree murder covers all other unlawful killings committed with express or
implied malice aforethought
Manslaughter is defined as any homicide committed as a result of adequate
provocation or caused by a defendants criminal negligent conduct

Federal Statute
It is unlawful to receive or possess unregistered hand grenades

Involuntary Manslaughter Statute

A person is guilty of involuntary manslaughter when as a direct result of doing an
unlawful act in a reckless or grossly negligent manner, or in the doing of a lawful act
in a reckless or grossly negligent manner he causes the death of another person

Florida Homicide/Rape Statutes

Attached.

MPC Sections (Book, Tabbed)

Attempt
Insanity Defense
Homicide
Mistake of Fact/Law (IN NOTES)
Rape
Voluntary/Involuntary Manslaughter