Criminal Law – Katz – 2014

Introduction and Theories of Punishment

A. By way of introduction
Keeler v. Superior Court (S.C. Cal. 1970): due process and the ex post facto clause protect an individual from
being charged with a crime that was not defined as such when they committed the action in question. This
means protection from the enactment of a new statute, as well as from the unforeseeable judicial enlargement
of existing statutes.
 Man discovered that his wife was pregnant with another man’s baby, hit her in stomach (though not
intending to kill the baby) causing a stillborn baby.
 Issue was whether the baby fell under the definition of human being in Cali’s murder statute.
o Keeler saying that he can’t be convicted of murder because he didn’t kill a human being.
 Looked at legislative intent and determined that legislature was using the common law term human being,
which meant born alive. Feticide not murder.
 Modern developments undermining this definition, but it is for legislature, not court to change the law.
o Still, some criminal courts do change the law. Much less prevalent than in civil courts however.
 Due process of 5th and 14th Amendments prevents enlargement of the law because defendant must have
notice that his behavior is illegal, which means no retroactive enlargements of the law.
o Also looked to § 6 of California Penal Code which prohibited judges from applying laws not
explicitly laid out in the Code.
 Dissent: legislature left the term “human being” to the courts to define based on contemporary
considerations. Due process also not violated here because, despite the court never considering what
constitutes a human being, the review of this question does not mean that it was unforeseeable.
 Court likely didn’t want to declare the killing of an unborn fetus as a homicide at that time because
of the increase in the number of abortions. If the court said that killing a fetus in this case was
murder, question then becomes why abortion isn’t also murder.
o Court wanted to avoid this question, so likely said that a fetus is not a human-being.
Why is there this emphasis on due process in criminal law? That is, why is law judge-made in civil
proceedings but made by the legislature in criminal proceedings?
 Crim law usually involves the government, which has more resources and power. Due process acts as a
restraint against the arbitrary application of that power.
 Must retain trust in system, so due process utilized to appeal to our desire for fairness.
 Liberty what is at stake in a criminal case, whereas some financial asset at stake in a civil case. Thus,
higher barriers and standards in a criminal case because it involves a more fundamental, unassailable right.
 Crim law also more concerned with deterrence (which requires some way of communicating what behavior
to avoid), whereas civil law about remedying harms (which requires laws that make the person whole
again, more flexible).
 Despite these reasons, no dispositive reason that we guard against retroactive behavior in crim. law.
In fact, crim. law under common law was judge-made law.

B. The Criminal Justice System

 Most criminal laws are laid out in statutes and the court is then to decide whether a statute applies to
a given case and what the meaning of the statute is.
 The criminal justice system is society’s primary mechanism for enforcing standards of conduct
designed to protect the safety and security of individuals and the community.

C. A case to illustrate a few points (shocker)

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Ewing v. California (SCOTUS, 2003): case used to illustrate the various theories for punishment. Rule:
proportionality of the Eight Amendment only protects against grossly unjust punishments. Where there is a
rational legislative goal for enacting more stringent punishments, barring them being grossly unjust, the
Court will defer to the legislature’s judgment.
 Involved “three strikes” law in Cali. Man stole over $1,000 in golf clubs and was convicted of felony grand
theft, carrying a sentence of 25-life. Issue: did this qualify as cruel and unusual punishment?
 Court said that it has tended to defer to legislatures in making and implementing important policy
decisions.
o Law here meant to incapacitate offenders who continued to commit crimes.
o Also meant to deter convicted criminals of committing further crimes (trying to address the
problem of recidivism).
 Concurrence (Scalia…): proportionality a concept of retribution.
o Once plurality acknowledges that Constitution does not mandate adoption of any one penological
theory, can’t simply compare the gravity of the offense with the harshness of the penalty. Only a
first step in the analysis. Plurality then needs to show that Ewing’s sentence was justified by the
State’s public safety interest in incapacitating and deterring recidivist felons.
 Dissent (Beyer): incapacitation not the point of the “three strikes” rule. The legislature seeking to reduce
serious and violent crimes against the person, crimes that create danger of physical harm, and drug crimes,
not serious crimes against property. Other criminal law objectives equally irrelevant:
o Retribution doesn’t fit because being punished much more severely that his blameworthiness
would indicate.
o Sentence too excessive to be based on a theory of deterrence.
o Clearly not rehabilitation as sending him to prison for a long time.

D. Four Theories of Punishment (Really Two)

1. Deterrence/Utilitarianism: goal of utilitarian is to promote happiness and decrease misery in society.
 Must decrease that what diminishes happiness. Do this through threat of pain (imprisonment). People then
calculate if the pain is sufficient for them to engage in criminal act.
o Imprisonment thus alters individual’s determinations about the worth of an act. Makes them less
willing to engage in the criminal act. Happiness of society thereby increased.
 Punish only if it serves the well-being of society.
 A difference between special and general deterrence:
o Special deterrence about deterring someone from future behavior using punishment.
o General deterrence about deterring society from engaging in a behavior by giving them an
example of what happens to those who engage in the behavior.
 Rationality important to general deterrence because only rational beings will use the example of the other
person punished in their own calculations of whether to commit a crime.
 Thoughts on proportionality of punishment:
o Punish in the amount required to satisfy crime prevention principles, but no more.
o Punishments should be so that a person chooses the less mischievous of two offenses because the
punishment for the greater offense is sufficiently more.
 Criticisms:
o General deterrence only works if people act rationally and if they are aware of the example of the
punishment to the other person.
o Deterrence could lead to a severe punishment for a low-level misdemeanor, or even punishing
someone not guilty of an offense, if it would serve the greater good.
 The ends justify the means.
o Life sentence for drunk driving appropriate from a utilitarian perspective because it can result in
severe injury/death. We thus have an incentive to punish it harshly to deter such behavior.
However, this seem contrary to our notions about justice and fairness.
2. Retributivism: justified to punish because, and only because, the offender deserved it. That is, moral
culpability gives society more than merely a right to punish culpable offenders, it gives them a duty to do so.
 Punish if person commits a crime (the just deserts of commission).
 Punishment is deserved when a wrongdoer freely chose to violate society’s rules.

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  As a comparison, retributivists look backwards in time and justify punishment solely on the basis of the
previous, voluntary commission of a crime. In contrast, utilitarians look forward in time. They care about
the past only to the extent that it helps predict the future.
 Common formulation of retributivism:
o Kant: execute the murderer. Punishment should replicate the deed, lex talionis.
o Moore: disagrees with lex talionis. Not a necessary part of retribution. Punish in a way that fits
what the offender did.
 With retribution, want to ensure that suffering matches the crime, but also want to ensure that certain types
of suffering do not occur (e.g. torture).
 Criticisms:
o Retributivists advocate for inflicting pain even if it will not promote a larger social good.
o It glorifies anger and legitimizes hate.
o It is irrational because it is founded on emotions rather than reason.

Hybrid of deterrence and retribution: punish someone to benefit the social good, but only to the extent that
they deserve it.
 A person can be legitimately punished only if he committed a crime, only in proportion to that crime, and
only if doing so would produce a world with less crime.

3. Rehabilitation: simple v. complex.

 Simple rehab. seeks to make people ready to return to the streets.
 Complex rehab. seeks to rehabilitate the offender so that they can flourish in society.
 Criticisms:
o Cannot reform criminals. Other institutions have failed to reform criminal (such as schools), why
would the criminal justice system be more effective?
4. Incapacitation: take the offender off of the streets to prevent them from committing a further crime.
 Problem: may take offender off of the streets so that they cannot commit a crime, but others are likely to
fill that role because there is still an incentive to commit a crime.

Retributivism and deterrence the main theories underpinning our code. Each gets expression in various
places and the prominence of one over the other changes as society changes.

E. General Notes on Criminal Law

 Three sources of criminal liability:

o Actus reus (physical or external component of a crime) + mens rea (culpable mind) by an
individual
o Being an accomplice to a crime
o Crime not committed but attempted

Actus Reus

A. Definition
The actus reus of a criminal offense consists of a (1) voluntary act; (2) that causes; (3) social harm.

 Do no punish beliefs alone because of retributive theory justifies punishing only those that freely chose to
do harm to others.
 The actus reus is an element of every criminal offense.
o Not the same as intention. Can choose to do something without intending the consequences.
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 B. The “Act”
An act is a bodily movement, a muscular contraction.

 Voluntary: a voluntary act involves the use of the human mind; an involuntary act involves the use
of the human brain, without aid of the mind. With a voluntary act, a human being – a person – and
not simply an organ of a human being, causes the bodily action.
 Habitual acts tend to fall on the voluntary side of the continuum.
 Involuntary acts are “wild” acts not governed by the will in the sense that they are not subordinated to the
agent’s conscious plan of action.
 Hypnotism: depending on how our understanding of hypnotism progresses, acts under hypnotism may
qualify as involuntary because an act of the brain not the mind.
 Rationale for actus reus requirement (retributivism): criminal punishment, which entails attendant pain,
stigma, and formal condemnation of the offender, should only be imposed on those who deserve it, i.e.,
those who act as a result of free choice. In the absence of a voluntary act, there is no basis for social
censure.
 MPC § 2.01 provides that no person may be convicted of a crime in the absence of some conduct that
“includes a voluntary act or the omission to perform an act of which he is physically capable.”
o An act is a bodily movement whether voluntary or involuntary.
o Voluntary is not defined. Instead it states that acts are involuntary if they are reflexes,
convulsions, conduct during unconsciousness, sleep, or due to hypnosis; and, generally, any
conduct that is not a product of the effort or determination of the actor, either conscious or
habitual.

C. Cases Regarding the Actus Reus

1. Martin v. State (Alabama Ct. Apps. 1944):

 Convicted of being drunk on public highway after an officer arrested him and took him onto the highway
where he manifested his drunkenness by using loud, profane language.
 Court said that the statute, though not explicit, requires the voluntary act of entering the public place. An
involuntary act, such as being arrested, does not meet the actus reus requirement.
o Reading the common law requirement of actus reus into the statute, though not explicitly present.
 A person can only be guilty of a defined offense if they committed an action voluntarily, even if the
statute that they are accused of violating doesn’t state this explicitly.
 People v. Decina: man had an epileptic seizure while driving and was convicted of involuntary
manslaughter. He knew he had epilepsy and that driving was dangerous, he thus “took a chance by making
the conscious choice of a course of action, in disregard of the consequences which he knew might follow
from his conscious act, and which in this case did ensue.”

2. People v. Newton (Cali. Dist. Ct. of App. 1970):

 Man in a struggle with a police officer. Claimed that he was shot and lost consciousness. Ended up killing
the police officer and making it to a hospital.

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  A valid reason, such as being unconscious, can be used by a defendant as a defense to show that they
didn’t act voluntarily in the commission of an act. If did not act voluntarily, then fail to satisfy one of
the required elements of a criminal offense and cannot be found guilty.
 Cogden: woman killed daughter while sleepwalking. Court said not a voluntary act.
 Newton differs from Martin since Martin’s body never acted while Newton’s did. Court thus
expanded what constitutes an involuntary act.

3. Robinson v. California (SCOTUS, 1962):

 Man punished under Cali law that made it a crime to be addicted to drugs. Only evidence was testimony of
the arresting officer that he found D with scar tissue, discoloration, and needle marks on his arm.
 Court held that a statute that punished someone based on their status was a violation of the 8th and 14th
Amendments.
o Wrong because states wouldn’t punish someone for being a leper or having a venereal disease.
 Cannot punish someone just because of their status (e.g. being addicted to drugs). Must also be some
voluntary act.
 Katz: court didn’t need to get into all of this discussion. If they had just analyzed the actus reus
requirement they could have ruled that voluntarily taking drugs and becoming a drug addict
renders a person culpable. However, if involuntarily became a drug addict (e.g. sex slave forced to
take drugs) then not guilty because no voluntary act.
o Court’s ruling based on the worry of finding people guilty in odd hypos where they didn’t
voluntarily become an addict, but didn’t need to worry about this if they had just considered the
actus reus.

4. Powell v. Texas (SCOTUS, 1968):

 Man arrested and charged with being in a state of intoxication in a public place. Argued that he should not
be found guilty because he is an alcoholic and did not act voluntarily.
 Court stated that not enough known about alcoholism to say much on it. Used testimony of D that he could
choose not to drink as indicative that he acted voluntarily. Cannot allow a compulsion to be a defense
against actus reus because a killer could use it to say that he felt compelled to kill.
 Unlike Robinson, because not punishing someone for a status, punishing them for being drunk on a
particular occasion.
 Although it is unconstitutional to convict someone of a crime because of their status, it is not
unconstitutional to convict someone of a crime that prohibits a certain act, even if the person took
part in that act because of some type of strong, involuntary compulsion to do so.
 Dissent (Fortas): Robinson stands for the principle that criminal penalties cannot be imposed on a person
for a condition that he is powerless to change. This case did involve more than just a status offense, but the
defendant still found guilty of a condition which he was powerless to alter or avoid.

The Time Framing Issue

 In essence, how far back can one look to find a voluntary act?
 Kelman: Martin did something voluntarily (getting drunk) that posed a risk that he would get arrested and
carried into public in his drunken state. Further, the chance of ending up in public after drinking was surely
higher than the chances of having an epileptic seizure while driving.

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  Moore: if the court can find a voluntary act by the defendant, accompanied at that time by whatever
culpable mens rea is required, which act in fact and proximately causes some legally prohibited state of
affairs, then the defendant is prima facie liable for that legal harm. NO “time-framing choice.” Major
consideration is proximate cause. Was the criminal behavior the foreseeable outcome of a voluntary
act with a culpable mens rea?
o Martin’s acts not the proximate cause of him ending up in public drunk. Took intervening cause of
the police officer (not foreseeable). In contrast, Decina chose to drive. Thus, this decision was the
proximate cause (could foresee a seizure and harm resulting from it) of him being in a situation in
which he had an epileptic seizure and killed four people.
o Also, no mens rea to make his drunken behavior in public culpable.

Multiple Acts
Do all acts need to be voluntary for a guilty verdict?

 Yes or not truly a voluntary act. For example, Martin chose to drink and, arguably, to manifest his drunken
state. However, he did not choose to appear in public while drunk, he thus fails to satisfy one of the central
elements of the offense.
 No. But for the voluntary act, the involuntary act would not have occurred. Martin chose to drink and took
the risk of the possible consequences. But for his decision to drink, he would not have beat his wife, been
arrested, and involuntarily appeared in public where he manifested his drunkenness.

Omissions; Acts v. Omissions

General rule: Subject to a few limited exceptions, a person has no criminal law duty to act
to prevent harm to another, even if she can do so at no risk to herself, and even if the
person imperiled may lose her life in the absence of assistance.
 Criminal law distinguishes between an act that affirmatively causes harm, on the one hand, and the failure
of the bystander to take measures to prevent harm on the other.
 Chief criticism is that it exonerates people who are morally culpable.
o E.g. people watched Kitty Genovese stabbed repeatedly. Morally reprehensible, but not illegal.

Why are omissions not punished?

 Problem of drawing the line. How far do we want to go in imposing a duty?

 Mens rea not as applicable in omissions. Is someone who fails to help as culpable as someone who created
the harm?
 We live in a society that values autonomy. Don’t impose a duty to act because it would undercut one of
our central values.
 Actions invade someone else’s freedom. We punish because we feel harmed and outraged. Omissions
don’t invade someone else’s freedom. We don’t punish because it doesn’t attack our sensibilities.
 Problem: is someone who doesn’t save another person from drowning as morally culpable as someone
who declines to give money to a homeless man who then starves?

Exceptions
 A person may have a common law duty to act to prevent harm to another if she stands in a special
status relationship to the person in peril. Such a relationship is usually found on the dependence of
one party on the other, or on their interdependence.

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 o Examples: parents to their children, married couples to one another, and masters to their servants.
o However, siblings have no duty to one another, there is no duty for parents to aid their adult
children, and there is not duty for adult children to aid their parents.
o Notion of who qualifies as a spouse or parent slowly expanding with changes in the family
structure. For instance, in People v. Carroll the court held that a step-mother had a duty to keep
her husband from beating his son because she had adopted the parenting functions of the mother.
 A duty to act may result from an expressed or implied contract.
o Examples: One can be guilty for breaching an agreement to house, feed, and provide medical care
to a stranger. One can be guilty for failing to care for one’s mentally and physically disabled
parent who then died.
 An act, followed by an omission, will result in responsibility for the omission, even when there was
no liability for the original act.
o One who wrongfully places a person or property in jeopardy of harm has a common law duty to
aid the injured or endangered party. If she breaches that duty, she can be held criminally
responsible for the harm arising from the omission.
o One who voluntarily commences assistance to another in jeopardy has a duty to continue to
provide aid, at least if a subsequent omission would put the victim in a worse position than if the
actor had not initiated help. Rule applies even if the omitter was not initial responsibility to
rescues the victim.
 Some statutes may also require a person to act.
o For example, statutes require people to pay taxes on earned income and require parents to provide
food and shelter to their children.
o Good Samaritan laws also make it a misdemeanor not to come to the aid of others under specified
circumstances.
 Jones v. United States also claimed there was a duty when a person voluntarily assumes the care of
another and thereby excludes them from the care of others.

MPC Approach
 Similar to the common law. § 2.01(1): a person is not guilty of any offense unless his conduct “includes
a voluntary act or the omission to perform an act of which he is physically capable.”
 Liability based on an omission is permitted in two circumstances:
o If the law defining the offense provides for it.
o If the duty to act is “otherwise imposed by law,” which includes duties arising under civil
law.

Social Harm
 Social harm may be defined as the “negation, endangering, or destruction of an individual, group, or state
interest which was deemed socially valuable.”
 Some crimes are defined in terms of harmful conduct. Harmful results are not required.
o Example: drunk driving.
 Other crimes may be defined in terms of a prohibited result.
o Example: common law murder since it is defined as “the death of another human-being.” It
doesn’t matter how the result occurred.
o Often, offenses will include both conduct and result elements.
 In order for any offense to occur, certain facts or conditions – attendant circumstances – must be present
when the actor performs the prohibited conduct and/or causes the prohibited result that constitutes the
social harm of the offense.
o These attendant circumstance are found in the definition of the crime. The social harm of an
offense has not occurred unless the specified attendant circumstances are present.

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 o Example: burglary is the “breaking or entering of a dwelling house of another at nighttime.”
Dwelling house and nighttime are attendant circumstances.

Cases Regarding Omissions

1. Jones v. United States (US Court of Appeals, District of Columbia Circuit, 1962):
 Mother and kid living with another woman. That woman had ample means to provide food and
medical care to the kid, but was not being paid. Kid died and woman charged with involuntary
manslaughter.
 Only owe a person a duty to act when a statute imposes such a duty, there is a certain
relationship, there is a contractual duty to act, or when one has voluntarily assumed the
care of another and thereby secluded them from the care of others.
2. Pope v. State (Maryland Ct. Apps., 1979):
 D took in baby and mother. Mother prone to fits of violent religious frenzy. Had such a fit and
beat her baby to death. D watched, doing nothing to protect the child, to call authorities, or to seek
medical assistance.
 Court held that D not acting in loco parentis because the mother was always present and it would
be ridiculous to say that D had a duty to usurp the mother’s responsibility to supervise her own
child.
o May have been a moral obligation to act, but that doesn’t make it criminal.
 When neither a statute establishes a duty to act nor does a special relationship exist between
the victim and the defendant, then the defendant is not guilty for a failure to act, even if it
seems morally reprehensible to fail to act.

Why don’t people act? (Yeager)

 May fear retaliation for intervening.

 Presence of other bystanders increases the likelihood of free-riding.

Possession MPC § 2.01(4): possession can satisfy the actus reus requirement only when the accused “was
aware of his control [of the thing possessed] for a sufficient period to have been able to terminate his
possession.”

The State v. Williston Hypo

 Baby died of flu, did Williston have a duty to act?
 Did have contract with a private charity to provide care for the children of the tenants of her building.
o However, not with the parents themselves.
o As a counterpoint, we allow lifeguards to watch over children and hold them responsible for their
failure without a contract between the parents and the lifeguard.
o Law probably goes either way.
 A statute saying that landlords are supposed to report instances of the flu.
o Williston may have a duty if the statute was meant to encourage reporting so that prompt medical
treatment could be provided.
o However, if statute meant to limit the spread of infection then it may not create liability.
 Williston did volunteer, but the mother of the baby also responsible so didn’t prevent the baby from
receiving help from others.
 Is Williston liable for failing to act after creating the peril? Carried infection unbeknownst to her.
o No, not aware of disease when she had contact with the baby.
o Yes, she became aware of the disease and thus should have helped since she partially caused the
situation.
 Did Williston have a special relationship?
o No, similar to Pope in that she took a family in, but didn’t have a duty to oversee their well-being.

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 o Yes, she is landlord and the baby a tenant. But, does a landlord have a duty to all tenants?

Acts v. Omissions
Difference between act and omission (Katz): act plays causal role in the harm, omission does not. If person
was not around and same event would have occurred, then it was an omission.

 Not always clear, but the basic idea.

Barber v. Superior Court (California District Court of Appeal, 1983):

 Man was a veg. Family requested that he be taken off of life support, so the physicians did so. Eventually
removed the tubes feeding him and he died.
 Court said that taking man off of life support not an act but an omission to provide further treatment,
similar to as if they had never begun treatment.
 Physician has no duty to continue to provide extraordinary treatment when it is clear that such treatment
would be ineffective. It is to the patient to decide when to cease treatment, but if they are incapacitated it
falls to their loved ones.
 When a behavior is a voluntary cessation of a series of acts, such a behavior is considered an
omission to perform those acts, not an act.
 Katz: here, court engaged in act/omission distinction because it seems that they wanted to find that the
doctors were not liable. Used the distinction to allow them to do this. If they had said it was an act then
they could only interpret the laws of the legislature, which defines those acts that are illegal and those that
are not. However, by saying that it is an omission, it allows the courts to determine if there was a duty.
 Similarly, in Airedale NHS Trust v. Bland, the House of Lords found that there is a difference between a
doctor who chooses to cease providing treatment and one who administers lethal drugs. Cessation of care
is “not an act but an omission to struggle” and that omission is not a breach of “duty of the doctor because
he is not obliged to continue in a hopeless case.”
 Identity of the person matters. If a person starts treatment, then their failure to continue is an omission. If a
third party intervenes, however, it is an act of intervention.

Another Katz Hypo

 Car flying towards baby. There is a chest in the way because a man is moving into a new apartment. He
tells the movers to save the chest and get the baby after. Car hits and kills baby. Manslaughter?
 No. Man had not connection to the baby (no special relationship, contract, etc.), so an omission and no
liability.
 Yes. Act not an omission because he moved the chest that was protecting the baby, didn’t just omit to save
the baby.
o Baby would have survived if he didn’t move the chest.
o But for his action, the baby would have lived.
 Application of the removal test:
o If man not there, chest is in place and baby lives.
o Other side, if man not there, no chest anyways and the baby dies.

Mens Rea
Definition
 Mens reas is defined as a general immorality of motive, vicious will, or an evil-meaning mind. Basically, it
suggests a general notion of moral blameworthiness, i.e., that the defendant committed the actus reus of an
offense with a morally blameworthy state of mind.

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 o This is the culpability meaning of mens rea.
 Mens rea may also be defined as the particular mental state provided for in the definition of an offense.

Why have a mens rea requirement?

 Utilitarian perspective: a person cannot be deterred from criminal activity unless they appreciate that
punishment lies in store if he persists in his actions. Therefore, punishment of one who lacks a culpable
state of mind will be ineffective and, as a consequence, wasteful.
 Retributivist perspective: the principle is founded on the belief that it is morally unjust to punish those who
accidentally, rather than by choice cause social injury.
o Also punishment stigmatizes the wrongdoer, thus such stigma should not attach, and liberty should
not be denied, to one who has acted without a culpable state of mind.

Common Law Terms

Intentionally

 At common law, a person intentionally causes the social harm of an offense if it his desire to cause the
social harm, or if he acts with knowledge that the social harm is virtually certain to occur as a result of his
conduct.
 Transferred intent: we attribute liability to a defendant who intending to kill (or injure) one person,
accidentally kills (or injures) another person instead. The law “transfers” the actor’s state of mind
regarding the intended victim to the unintended one if the harm caused is the same (not just in
homicide crimes). Two justifications for the rule:
o Necessity: bad aimer should not avoid conviction for intent-to-kill homicide simply because he
killed the wrong person.
o Proportionality: one who intends to cause a particular harm to one individual, and instead causes
precisely the same harm to another person, is as culpable as if the defendant had accomplished
what he had initially intended.
o Transferred intent does not transfer the intent to cause one social harm to another social harm.

Knowingly or With Knowledge

 A person has knowledge of a material fact if he is aware of the fact or correctly believes that the fact exists.
 Many jurisdictions also permit a finding of knowledge of an attendant circumstance when the actor
is guilty of “willful blindness” or “deliberate ignorance.” This condition exists if the actor is aware of
a high probability of the existence of the fact in question and takes deliberate action to avoid
confirming the fact, or purposely fails to investigate in order to avoid confirmation of the fact.
o Justification for the willful blindness doctrine is that a narrow definition of “knowledge” would
reward a person who seeks to avoid criminal responsibility by purposeful ignorance. It is said that
such a person is as culpable as one who is actually aware of a fact or correctly believes that it
exists.

Negligence

 A person’s conduct is negligent if it constitutes a deviation from the standard of care that a reasonable
person would have observed in the actor’s situation. Conduct constitutes such a negligent deviation if the
actor fails to appreciate that he is taking an unjustifiable risk of causing harm to another.
 Three factors are important when determining whether a reasonable person would have acted as the
defendant did:
o The gravity of harm that foreseeably would result from the defendant’s conduct.
o The probability of such harm occurring.
o The burden or loss to the defendant of desisting from the risky conduct.

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  Civil v. criminal negligence: criminal negligence is a gross deviation from the standard of reasonable care.
In other words, criminal negligence is a substantial and unjustifiable risk of causing the social harm that
constitutes the offense charged.

Recklessness

 Recklessness occurs when a person takes a very substantial and unjustifiable risk.
 Criminal recklessness requires that the actor consciously disregarded a substantial and unjustifiable
risk of which he was aware.
 Difference between negligence and recklessness is not based on the actor’s deviation from the standard of
reasonable care, but rather is founded on the actor’s state of mind in regard to the risk.
o Criminal negligence involves inadvertent risk-taking (person should have been aware that their
actions presented a substantial and unjustifiable risk).
o Recklessness involves an actor that was aware of the substantial and unjustified risk he was
taking, and yet he consciously disregarded it and proceeded with his dangerous conduct.

General v. Specific Intent

 Historically, general intent referred to any offense for which the only mens rea required was a blameworthy
state of mind. Specific intent was meant to emphasize that the definition of the offense expressly required
proof of a particular mental state.
o An offense that only required proof of mens rea in the culpability sense of the term was a general
intent crime.
o Offenses that required mens rea in the elemental sense were specific intent in nature.

MPC
MPC § 2.02(2): if one of the following mental states accompanies an act (must accompany each material
element of the offense), then culpability is satisfied:

 (a) purpose: when a person (i) has a conscious object to engage in conduct of that nature or to cause
such a result or (ii) where a material element of a crime requires attendant circumstances and
perpetrator is aware of them or hopes they exist.
 (b) knowingly: (i) a result is knowingly caused if the actor is aware that it is practically certain that
his conduct will cause such a result. (ii) With attendant circumstances and conduct elements, one acts
knowingly if he is aware that his conduct is of that nature or that such attendant circumstances exist.
o Purposely and knowingly require knowledge of the attendant circumstances of an offense. They
differ in that purposely means that you want to cause that harm, whereas knowingly means that
you don’t necessarily want to cause that harm, but you know it is highly likely.
 (c) recklessly: a person acts recklessly if he consciously disregards a substantial and unjustified risk
that the material element exists or will result from his conduct. A risk is substantial and unjustified
if, considering the nature and purpose of the actor’s 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 actor’s situation.
 (d) negligence: a person’s conduct is negligent if the actor should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his conduct.
o The easiest application is when the risk is substantial and justification minimal. Becomes harder to
draw the line of what constitute criminal negligence as the risk becomes less substantial and/or
there is a better justification.
o Thus, both negligence and recklessness require the same degree of risk taking: substantial and
unjustifiable. The difference between them lies in the fact that the reckless actor “consciously
disregards” the risk, whereas the negligent actor’s risk-taking is inadvertent.

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  S 2.02(3) provides that when the definition of a criminal offense is silent regarding the matter of
culpability as to a material element of the offense, the material element is “established if a person
acts purposely, knowingly, or recklessly.”
o Rationale: punishment should reflect moral fault. Shouldn’t punish someone if the harm was not
intended in some way.
 § 2.02(4) provides that a single mens reas term modifies each actus reus element of the offense, absent
a plainly contrary purpose of the legislature.
 § 2.02(5) – lesser mens rea for a crime allows individuals with higher mens rea to be culpable.

Purpose – want to engage in the conduct or want the result to occur.

 Conditional purpose: sometimes conditional purpose can be made into actual purpose and satisfy the
mens rea requirement MPC § 2.02(6). Test for when conditional purpose will satisfy actual purpose
as men rea for a statute is; if condition is met and there would still be criminal harm, then we impute
general purpose.
o E.g. if someone enters a country with drugs for self-use, but has the conditional purpose that they
would sell them if someone offered them a fortune, then, if they do sell them, that conditional
purpose becomes actual purpose and they can be found guilty of intending to sells drugs.
o Holloway case: carjacking; D is threatening to cause death/serious bodily harm unless car given.
So if car wasn’t given, would cause death/serious bodily harm (conditional purpose) – can thus
impute that there is purpose to cause death/bodily harm.
 Someone who has purpose will fulfill mens rea requirement of a statute that requires knowledge, but not
vice versa. A hierarchy of blameworthiness.
o Plant bomb in carriage wanting queen to die. Don’t want coachman to die, but expect this will
happen. Coachman is a byproduct so this is knowledge.
o Kill grandmother because it’s the only way to get money. Grandmother is the means, so this is
purpose.
 What about in the situation in which someone wants to blow up a plane to damage the reputation of the
competition but does not desire to kill the people on board?
o Obviously acted knowingly because an almost certainty that the result would occur, despite him
not wanting it.
o Can also make the argument that he acted purposely. Almost no way that there will be no one on
the plane, so killing people on the plane a deeply intertwined byproduct of wanting to damage the
other company’s reputation. Because this byproduct is so deeply intertwined with the goal, the
actor must at some point decide to accept it. Thus, it could be said that he intended the byproduct
because it could not be separated from the result that he truly sought.

Knowledge

 MPC 2.02(7) – if a person is aware of a high probability of something’s existence, knowledge is

established.
 To equate willful blindness with knowledge, two requirements must be met:
o The defendant must subjectively believe that there is a high probability that a fact exists.
o And, the defendant must take some deliberate actions to avoid learning of that fact. Jewell
 Other approaches:
o Deliberate ignorance is equivalent to knowledge.
o Deliberate ignorance is equivalent to recklessness.
o Deliberate ignorance doesn’t invoke a mental state.

To determine the presence of the appropriate mens rea for conviction:

 Determine the material elements (elements that don’t relate to jurisdiction, venue, statute of limitations, etc)
of an offense.

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  Determine which type of mens rea is required with respect to each element – purpose, knowledge,
recklessness, or negligence.

Cases
Regina v. Cunningham (Court of Criminal Appeal, 1957):

 D convicted of unlawfully and maliciously causing Ms. Wade to ingest a noxious thing. He had stolen gas
meter from the wall, which led to gas leaking through the neighbor’s wall and asphyxiating Ms. Wade.
 Malicious means an intentional act to commit a particular harm or foreseeing the possible dangers of
an action and committing it regardless. Malicious equated with purpose or recklessness.
 Wrong for trial judge to equate malicious with wicked (something which he has no business to do and
perfectly well knows it), so the conviction was quashed.

United States v. Jewell (9th Cir. 1976):

 D had weed in his car, testified that he didn’t know it was there. However, was circumstantial evidence to
indicate that he did know. Also evidence that D knew of the secret compartment and had knowledge of
facts indicating that it contained weed, but that he deliberately avoided positive knowledge of the presence
of contraband to avoid responsibility in the event that it was discovered.
 Positive knowledge not necessary to show that a defendant acted knowingly. There can also be
intentional ignorance when it is clear that the defendant could have known about something, but
specifically chose to avoid knowing.
o Rationale: saying that knowingly requires positive knowledge would allow ignorance to be a
defense.
 Problem: is willful blindness the same as knowing? It doesn’t seem so. We wouldn’t say that a lawyer who
helps his client lie is as culpable for his wrongdoing as one who avoids learning the truth of the matter.

Mistakes of Fact
Mistakes of Fact under the Common Law
 In specific intent crimes, a mistake of fact was exculpatory if it negated the particular element of
mens rea – the “specific intent” – in the definition of the offense. Basically, it was an elemental
approach to mistake of fact.
o For example, if an offense required that an actor intend to deprive another of their property, then a
mistaken belief that no one owned the property would exculpate the actor.
 For general-intent offenses, jurists looked to see if the mistake negated the moral culpability of the
actor.
o The typical approach looked to see if the mistake was reasonable (i.e. not negligent or reckless). If
it was the actor was not morally culpable and thus not guilty.
o The lesser applied approach is the moral wrong doctrine. Under this doctrine, one can make a
reasonable mistake regarding an attendant circumstance and yet still demonstrate moral culpability
worthy of punishment. The basic theory behind this doctrine is that the intent to commit an act that
is immoral furnishes the requisite culpability for the related, but unintended outcome.
 This doctrine not triggered unless the action, even if the facts had been as the actor
supposed, was immoral.
o Lesser-crime principle: if a person’s conduct causes the social harm that is prohibited by a more
serious offense, he is guilty of that offense even if, based on his reasonable understanding of the
attendant circumstances, he would be guilty of the less serious offense if the situation had been as
he supposed it to be.

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  For strict-liability crimes, under no circumstances does a person’s mistake of fact negate his criminal
responsibility for violating a strict-liability offense.

MPC
 § 2.02(1) states the general rule that one is not guilty of an offense unless he acted “purposely,
knowingly, recklessly, or negligently, as the law may require, with respect to each material element of
the offense.”
 § 2.04(1) provides that a mistake is a defense if it negates the mental state required to establish any
element of the offense or when it establishes a state of mind that constitutes a defense under a rule of
law relating to defenses.
 § 2.04(2) provides that the mistake of fact defense is not available if the actor would be guilty of
another offense had the circumstances been as he supposed. However, unlike the lesser-crime
principle, which maintains that the defendant is guilty of the higher offense in such circumstances,
the Code only permits punishment at the level of the lesser offense.
 Criminal statutes often written to two audiences: the general public (to which they direct a conduct rule)
and legal officials (to whom they direct a decision rule).
o Conduct rule says don’t do a certain crime because the community thinks it is morally wrong.
o Decision rules define a range of punishable actions that are unquestionably within the bounds of
the community’s relevant moral norms.

Key Views on Mistake of Fact

 Moral wrong principle: if an act, given the facts as the defendant supposes them to be, is morally
wrong, then a mistake of fact is not exculpatory.
 Lesser-Crime principle: if you commit a lesser crime with requisite mens rea, you run the risk of
being convicted of a greater crime if you behavior satisfied the actus reus of this crime (mens rea
transferred basically).
 MPC: 2.04(1) – if the mistake of fact negatives the means rea of an element of a crime, then mistake
of fact is exculpatory.
o Note: not actually different from 2.02’s command that you need mens rea for there to be
culpability. Just a reiteration of this principle.
o 2.04(2) mistake of fact does not excuse culpability when an actor has a mens rea for a
different crime. Only convicted of the lesser crime however. Mens rea not transferred to the
greater crime as it is with the lesser-crime principle.
 Meant to hold people guilty for committing a crime when they meant to commit
another. Had the appropriate actus reus and mens rea for this lesser crime, so we
hold them guilty of it.
 Strict liability – guilty regardless of mistake of fact.

Cases
Regina v. Prince (Court of Crown Cases Reserved, 1875):

 D convicted of taking an unmarried girl, under 16, out of the possession and against the will of her father.
Jury found that the girl was 14, but she told D that she was 18, which he honestly believed and which the
jury found to be a reasonable belief.
 Moral wrong doctrine: mistake of fact not sufficient to acquit an individual when his act, if the facts
as he supposed them to be, were still a violation of communal definitions of right and wrong.
o Criticism: decision based on supposed community standards, but they don’t exist. Also, no reason
that community ethics should be relevant to a criminal conviction.
 Wrong for a man to take a girl from the possession of her father. Thus, even if she was 18, the act was
wrong and mistake of fact cannot exculpate.

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 o Court probably would not have cared if D had the father’s permission.
 Dissent: If facts had been as the prisoner had found them to be, and he had reasonable ground to believe
them to be such, then he would have done no criminal act.
o When a person commits an offense knowingly, he runs the risk of committing a greater
crime to which he can be found guilty based on the mens rea of the lesser crime (lesser crime
principle).

People v. Olsen (Supreme Court of California, 1984):

 D convicted in engaging in lewd or lascivious conduct with a child under 14 years old. D argued that girl
looked 16 and that she had claimed she was 16.
 Mistake of fact not a defense in cases where it is clear that a law was enacted with a strong public
policy concern in mind. Shows that the action is clearly wrong and that it should be punished, even if
committed under false pretenses.
o Court looking at intent of the statute to conclude that it is a strict liability offense because based on
strong public policy concern and allows for lesser punishment.
 Strong public policy concern to protect children. Statute also allows defendants convicted of lewd or
lascivious conduct with a 14 year old to be eligible for probation, which implies that the legislature did not
intend for a mistake of fact defense to exonerate a person charged with this offense.
 Dissent: with traditional crimes, it is widely accepted that conviction should not be had without proof of
fault. When the offense carries serious sanctions and the stigma of condemnation, liability should be
reserved for person whose blameworthiness has been established.
o Strict liability should not apply to malum in se crimes.

Mistake of Fact through a Hypo

 Thinks he is entering an establishment, but really enters a dwelling (which the offense of burglary
requires).
 Wrong under Prince because it is morally wrong to break into an establishment, just as it is morally wrong
to break into a dwelling.
 Also guilty under the lesser-crime principle because he knowingly committed a crime, so he ran the risk of
having his mens rea transferred to a greater crime.
 Not guilty under 2.04(1) because he did not enter a dwelling knowingly.
 Guilty under 2.04(2), but not of burglary. Had the appropriate mens rea and actus reus of a lesser offense,
so charge him with that.

Strict Liability
A strict-liability doctrine is a rule of criminal responsibility that authorizes the conviction of a morally
innocent person for violation of an offense, even though the crime, by definition, requires proof of a mens rea.

 Katz’s factors for analyzing if a strict liability statute:

o Degree of punishment. Low supports strict liability.
o If person would know they are committing some type of offense. If yes, argument for strict
liability.
o If there is a public welfare consideration. If yes, argument for strict liability.
o If it is a traditional common law offense. If yes, argument against.
 These are crimes that do not contain a mens rea requirement regarding one or more elements of the actus
reus.
o The defendant neither knew nor had any reason to know that anything about his behavior was
legally or even morally wrong.

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  Statutes, even if lacking a specific mens rea requirement, are frequently interpreted to require one. That is,
lack of a specific mens rea requirement does not mean that a crime is strict liability.
o Canon of construction: when no explicit mens rea requirement in a statute, statute construed to
require the actor to act purposely, knowingly, or recklessly.
 Strict liability normally only pertains to one element of a crime, not the entire offense.
 Four factors that may overcome the presumption against strict liability:
o The statutory crime is not derived from the common law. That is, the offense if malum
prohibitum (wrong because it is prohibited), not malum in se (wrong because it is evil).
o There is an evident legislative policy that would be undermined by a mens rea requirement.
o The standard imposed by the statute is reasonable and adherence thereto properly expected
of a person.
o The penalty for violating the statute is small and conviction does not gravely besmirch.
 Involuntary act defense: if a defendant can establish that an act was the result of an unforeseen occurrence
or circumstance, which was caused by him and which he could not prevent, such would constitute a valid
defense to strict liability.
o Basically, actus reus still has to be satisfied with strict liability crimes.

Public Welfare Offenses

 With the industrial revolution, legislatures found it necessary to deal with a new problem: conduct by a
single actor that, although not morally wrongful (allegedly), could gravely affect the health, safety, or
welfare of a significant portion of the public.
 Responding to this, Congress and state legislatures began to enact laws, most of which contained no
express mens rea requirement, which came to be characterized as public welfare offenses.
o Such offenses involve conduct that is malum prohibitum.
o Examples: statutes prohibiting the sale of impure food or drugs to the public, anti-pollution
environmental laws, and traffic and motor-vehicle regulations.

United States v. Balint (SCOTUS, 1922):

 D indicted for violating the Narcotics Act of 1914 by selling derivatives of opium and coca leaves.
o Tried to argue that charges were defective because didn’t show that Ds knew they were selling
prohibited drugs.
 Court stated “In the prohibition of particular acts, the State may in the maintenance of public policy provide
that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or
ignorance.”
o Many instances of this found in regulatory measures, the goal of which is social betterment rather
than the punishment of crimes, as is the case in malum in se.
 Here, purpose of the statute is to require sellers to investigate if they are selling illegal drugs and to
penalize them if they are.

United States v. Dotterweich (SCOTUS, 1943):

 President of a pharmaceutical company prosecuted because his company mislabeled a number of drugs.
 Food and Drugs Act of 1906 an exertion of Congressional power to keep impure and adulterated food and
drugs out of the channels of commerce.
o Purpose of the legislation to protect people in an industrialized society from harmful food and
drugs.
 “The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation
whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional
requirement of criminal conduct – awareness of some wrongdoing. In the interest of the larger good it puts
the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a
public danger.”

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Morisette v. United States (SCOTUS, 1952):

 D went on an Air Force base, took bomb casings, and sold them for profit. Convicted of “knowingly
converting” government property.
o D admitted to knowingly converting the bomb casings to his own use property. However, he
believed that they were abandoned and thus no one’s property.
 Strict liability has been expanded to cases involving “public welfare offenses.” Basically, minor
crimes that violate some governmental regulation imposed to promote public welfare. These crimes
are the product of a modern society (they are malum prohibitum) and don’t punish harshly.
 However, cannot have strict liability in classic common law crimes (malum in se) because they have
traditionally required a culpable mens rea. Strict liability ought to be applied to crimes that have not
required a culpable mens rea.
 Theft, in whatever form, a crime before modern legislation because it invades property rights, offending the
whole community. Thus, people want retribution.
o Congress did not include a mens rea element in this statute because it was the practice of the states
to hold intent as inherent in this class of offense, even when not expressed in a statute.
 Purpose of doing away with the guilty mind requirement is to ease the prosecution’s burden, strip the
defendant of such benefit as he derived at common law from innocence of evil purpose, and to
circumscribe the freedom allowed to juries.
o Impairment of the immunities of the individual shouldn’t be extended to common law crime on
judicial initiative.

Staples v. United States (SCOTUS, 1994):

 D charged with violating National Firearms Act because he had a gun that had become warn to the point
that it fired full auto.
o D said that he had never fired the rifle full auto and that he didn’t know it could.
 When determining if the legislature intended strict liability to apply to an offense, look to see if it is a
public welfare offense and then to if there was some form of congressional implication that they did
not require a specific mens rea.
 Gov. tried to argue that Congress intended the Act to regulate and restrict the circulation of dangerous
weapons – a public welfare or regulatory offense, which means strict liability.
 However, Court reasoned that many people in US own guns, a staple of American culture. In many states,
buying a gun a simple transaction that wouldn’t alert a person to regulation. Nor is the type of behavior
typical of public welfare crimes.
o Also, 10 year penalty indicates the Congress did not intend this to be a strict liability crime.

Non-Public Welfare Offenses

 Some non-public welfare offenses are also strict liability crimes because they do not require a culpable
mens rea as a material element of an offense.
 Most common example is probably statutory rape.

Debate over Strict Liability

 Strict liability most often criticized for removing the mens rea requirement on retributivist grounds. That is,
one who does not choose to cause a social harm, and who is not otherwise morally to blame for its
commission, does not deserve to be punished.
 Strict liability can increase total harm by encouraging those that take precautions to not engage in an act at
all. Instead, often left with those who are so confident in their abilities that they are careless.
 Support for strict liability is based on deterrence principles as they relate to public welfare offenses. Want
to deter parties from engaging in behavior detrimental to the public welfare. The arguments:

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 o The absence of a mens rea requirement may have the desirable effect of keeping people who doubt
their capacity to act safely from participating in dangerous activities, such as manufacturing
pharmaceutical drugs or using dangerous instrumentalities.
o Those who do choose to engage in the risky activity will act with greater caution in light of the
strict liability nature to the law.
o An inquiry into the actor’s mens rea would exhaust courts, which have to deal with thousands of
minor infractions daily.

MPC
 MPC § 2.02(1) provides that, subject to one exception, no conviction may be obtained unless the
prosecution proves some form of culpability regarding each material element of an offense.
 Sole exception is § 2.05, which provides that the voluntary act and mens rea requirements need not
apply to offenses graded as violations, rather than crimes.
o Violations are crimes that cannot result in imprisonment or probation, but may result in fines.

United States v. Feola (Analyzing Strict Liability Katz Style)

 D arranged to sell heroine to an undercover gov. officer. However, only going to rob the officer.
 Charged with assaulting a federal officer: “whoever forcibly assaults, resists, interferes with [an agent of
the Bureau of Narcotics and Dangerous Drugs] while engaged in performance of his official duties shall be
liable” for a serious offense.
 Doubtful here that D knew these men were government officers, so difficult to act with any intention. Thus,
must be strict liability to find them guilty.
 Here, can argue that only assault element of the crime requires a mens rea element (which D satisfied as
acted purposely), and that status of the victim (gov. officer) a strict liability element.
 Could also apply Dotterweich to say that endangering the public by allowing people to assault government
officials because it could lead to a breakdown in authority.
 Actual court relied on MPC § 1.13 (9) and (10):
o 9 – element of an offense definition.
o 10 – material elements v. nonmaterial elements. Material elements are those that are significant to
the actus reus.
 E.g. if statute forbade killing someone knowingly or intentionally in PA, material
elements don’t include the location of the crime because don’t want to require
prosecution to show that the defendant knew that they were in PA.
 Material element distinction used to define elements for which we want to assign blame.
 Non-material elements not relevant to blameworthiness (e.g. venue, jurisdiction, etc), but
matter to people applying procedure.
 Thus, in Feola, court said that the part about federal officers simply there to assign jurisdiction to federal
courts. Not a material element.
 Dissent said that it was not a jurisdictional provision, it was meant to keep people from assaulting
government officials, which is why it allowed for increased punishment relative to other forms of assault.
 Main point, there is strict liability on immaterial elements of an offense. Don’t have to have particular
mens rea, these circumstances simply have to exist.

Mistake of Law
General Principles
 With some exceptions – the common-law mistake of law rule is simple: ignorantia legis neminem
excusat, or ignorance of the law excuses no one.

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  Why the common-law rule?
o The law viewed to be definite and knowable. Thus, no such thing as a reasonable mistake of law –
anyone who misunderstands the “definite and knowable” law has simply not tried hard enough to
learn it and, consequently, is morally culpable for failing to know the law.
o Recognition of a mistake-of-law defense would provide “opportunities for wrong-minded
individuals to contrive claims of mistake solely to get an exculpatory notion before the jury.”
o If the mistake were permitted, it would encourage ignorance and lawlessness.
o Best justification according to Katz: we are willing to condemn some actions and thus punish
even if a person does not believe they are illegal.
 Difficult to square with retributivism because, by definition, someone using the mistake of law defense
could not have known that they were breaking the law and they thus failed to act with a guilty mind
deserving of criminal punishment.

Reasonable Reliance Doctrine

 A person is not excused for committing a crime if she relies on her own erroneous reading of the law, even
if a reasonable person would have similarly misunderstood the law.
 Reliance on erroneous advice provided by legal counsel is not a defense to crime.
 Relying on an official statement of the law, later determined to be erroneous, obtained from a person
or public body with responsibility for the interpretation, administration, or enforcement of the law
defining the offense is exculpatory. Reasonable reliance doctrine. Justifications:
o Deterrence has little effect on individuals who believe that their conduct is authorized.
o Acting as we would want the person to act by obeying an official interpretation of the law.
 For a statement to be official it must be contained in:
o A statute later declared to be invalid.
o A judicial decision of the highest court in the jurisdiction, later determined to be erroneous.
o An official, but erroneous, interpretation of the law, secured from a public officer in charge
of its interpretation, administration, or enforcement, such as the Attorney General.
 Also must come in an official manner.

People v. Marrero (New York Court of Appeals, 1987):

 D a peace officer with a gun in a club. Thought he was exempted from the rule because he was a police
officer.
 Mistaken belief that an action was not a crime does not negate criminal liability. Two exceptions
relevant:
o If mistake founded on an official statement contained in a statute or other enactment later
shown to be erroneous.
o Reliance on an official statement of a public servant legally charged with the responsibility
of administering the law.
 D tried to argue that he relied on ambiguous statute, but the court rejected his argument stating that a
person is not exculpated for misconstruing a statute, that statute must be found to be erroneous.
o Worried that allowing the defense of misconstruing a statute would open the floodgates.
 Dissent: Purpose of criminal justice system is to punish those who freely choose to do wrong. Here, a man
acted innocently and did not choose to do wrong, so shouldn’t be punished.
o Court relied on MPC’s rejection of the mistake of law defense, but NY legislature seemed to reject
it and wanted to allow it.

Fair Notice and the Lambert Principle

 In some instances, grossly unjust to assume that a citizen is aware of a penal law’s existence that one might
expect that court would provide some common law dispensation.
 Three things concerned the Court in Lambert:

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 o The law punished an omission (failing to register).
o The duty to act was imposed on the basis of a status (presence in L.A.) rather than on the basis of
activity.
o The offense was malum prohibitum.
 Thus, nothing to alert a reasonable person to need to inquire into the law.
 Lambert would seem to exonerate pretty much anyone who was reasonably ignorant of the law. Nothing in
the logic would restrict the holding to affirmative obligations.
 It has not been formally repealed, but also rarely evoked.
o Likely restricted to cases with highly similar facts.

Lambert v. California (SCOTUS, 1957):

 D arrested on suspicion of another offense and charged with violation of a registration law that required any
convicted felons to register themselves with the city of LA.
 Where a law governs passive behavior and nothing would hint at its existence, then a person can only
be guilty of violating that law when they had actual knowledge of its existence or proof of the
probability of such knowledge, and they subsequently failed to comply.
 Conduct here wholly passive. Not an action and not an act under circumstances that should alert the doer to
the consequences of his deed.
 Here, violation of the law can occur without any activity and nothing would hint to someone about the
necessity of registration. Law seems to be just a convenient way for law enforcement agencies to keep track
of the location of felons.

Collateral Law Mistake

 Different-law mistake – ignorance of a civil law, in circumstances in which this mistake of law is
arguably relevant to the defendant’s criminal liability, negates the actor’s mens rea and exculpates.
o Does not apply to ignorance of a collateral criminal law.
 Ignorance of collateral law treated the same as mistake of fact.

Regina v. Smith:

 D added stuff to his apartment and then tried to take it with him when he moved out. Prosecuted for
destroying property of the landlord because the additions were technically a fixture.
 Court held that the mistake of law exculpates when a person destroys or damages property belonging to
another if the person honestly, albeit mistakenly, believes it to be their own property.
 Mistake of collateral, civil law, if it negates mens rea, exculpates.

State v. Vasgezi

 Man broke into a house to steal what he believed to be his property based on his understanding that he
could do so as a landlord.
 Court said that his act was not burglary since his subjective belief about his legal right to the property
negated the mens rea of the overall crime. Not ignorant of the crime of burglary, ignorant of law regarding
landlord/tenant agreements, thus mistake of civil law exculpates.

Statutory Exception
 Legislature can also make mistake of law a defense in certain statutes, thereby overriding the general
rule.

Cheek v. United States (SCOTUS, 1991):

 Man failed to pay taxes. Claimed that he believed that he owed no taxes and, if he did, that the law was
unconstitutional.

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 o Based his conclusions on info from “highly reputable” anti-tax group.
 Mistake about the existence or meaning of a law is a defense if that law itself allows the defense.
 Here, Congress has declared that a person must intend to violate tax law as an element of federal criminal
tax offenses because of the complexity of tax law. The statutory willfulness requirement is the “voluntary,
intentional violation of a known legal duty.”
o If D truly believed that the IRS did not require him to pay taxes, and the jury believed him, then
gov. did not carry its burden to prove willfulness, however unreasonable the belief.
o Did not willfully evade the law, so ignorance exculpates.
 However, D also researched the tax law to reach the conclusion that taxes were unconstitutional. Still, he
did not act willfully to evade the law, just recklessly.

MPC
 § 2.02 (9): unless the definition of a specific crime so provides, “neither knowledge nor recklessness or
negligence as to whether conduct constitutes a crime or as to the existence, meaning, or application of the
law determining the elements of an offense is an element of such of offense.” Ignorance of law not an
excuse.
 § 2.04 (1) seems to contradict: “Ignorance or mistake as to a matter of fact or law is a defense if it negatives
the purpose, belief, recklessness, or negligence required to establish a material element of the offense.”
o This section means that mistake of law, pertaining to an element of an offense is a defense,
however, mistake of general law is not a defense. Katz: basically, the ignorance of a collateral
civil law rule.
 § 2.04(3)(b) reasonable reliance doctrine: a person’s belief that her conduct is lawful constitutes a
defense if:
o She relies on an official, but erroneous, statement of the law.
o The statement of the law is found in a statute, judicial decision, administrative order or grant of
permission, or an official interpretation by a public official or body responsible for the
interpretation, administration, or enforcement of the law; and
o The reliance is otherwise reasonable.
 § 2.04(3)(a) fair notice: a defendant is not guilty of an offense if she does not believe that her conduct is
illegal, and the statute defining the offense is (1) not known to her; and (2) was not published or otherwise
reasonably made available to her before she violated the law.
 Also treats different-law mistakes as if mistake-of-fact. I.e. if the mistake negates the required mens rea
then it is exculpatory.

Mistake of Law through United States v. Baker

 Two men broke into an office. Charged with violating a statute that read: “If two or more persons conspire
to injure, oppress, threaten, or intimidate any citizen in the free exercise of enjoyment of any right or
privilege secured to him by the Constitution or laws of the United States, or because of his having so
exercise the same; or if two or more persons on the highway, or on the premises of another, with intent to
prevent or hinder his free exercise of enjoyment of any right or privilege so secured…” fined and not more
than 10 years in prison.
 Violated the actus reus by breaking into the office.
 Mens rea? Men intended to carry out what they thought was a government operation, but nothing in the
statute indicated that you need to think what you are doing is illegal. However, could also read the statute to
say that you intend to conspire and know you could be impeding another’s constitutional rights.
 Thus, use canon of construction that ignorance is no defense. Go to exceptions.
 Collateral law exception: could say not aware of 4th Amendment protection against unwarranted searches
and seizures, but not a civil law. But also not a criminal law. Thus, unclear how it would be decided.
 Does statute create an exception to the ignorance principle? Could say that the guys didn’t conspire to
injure someone in his Constitutional rights when they think that the Constitution protects their behavior

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 because of national security concerns. Seems that the legislature wanted awareness of injuring the person’s
constitutional rights.
o Not very persuasive.
 Reliance exception § 2.04(3)(b): met with officials who they believed authorized them to break into the
offices. However, no official statement of what the law is, just a request for an action that turns out to be
illegal.
o Convicted because the court found that officials in the White House, who these men relied on,
were not qualified to interpret the law.
 Lambert exception doesn’t apply because not an omission.

Mens Rea of Homicide

MPC § 210 (relevant parts)
§ 210.1 Criminal Homicide

 (1) a person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes the
death of another human being.
 (2) Criminal homicide is murder, manslaughter, or negligent homicide.

§ 210.2 Murder

 (1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
o (a) it is committed purposely or knowingly; or
o (b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are presumed if the actor is engaged
or is an accomplice in the commission of, or an attempt to commit, or flight after,
committing or attempting to commit robbery, rape, or deviate sexual intercourse by force or
threat of force, arson burglary, kidnapping, or felonious escape.
 (2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as
provided in Section 210.6].

§ 210.3 Manslaughter

 (1) Criminal homicide constitutes manslaughter when:

o (a) it is committed recklessly; or
o (b) a homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is reasonable explanation or
excuse. The reasonableness of such explanation or excuse shall be determined from the
viewpoint of a person in the actor’s situation under the circumstances as he believes them to
be.
 (2) Manslaughter is a felony of the second degree.
 Also negligent homicide.

The Premeditation/Deliberation Formula

Commonwealth v. Carroll (Supreme Court of Pennsylvania, 1963):

 D pleaded guilty to murdering his wife. Convicted of first-degree murder (included killings by poison,
lying in wait, or any other kind of willful, deliberate, and premeditated killing).
 D’s wife paranoid schizophrenic and they were in a number of fights. After one argument D shot her in the
head while they lay in bed.

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 o Claimed he didn’t remember much of what happened other than the harm she inflicted on their
children.
 Even if a person was provoked into murder, if they acted intentionally, willfully, deliberately, or
premeditatedly then they committed murder in the first-degree. No time is too short.
 Here, clear that D was provoked by his nagging, belligerent, and sadistic wife. D remembered his gun,
deliberately took it down, and deliberately fired two shots into the head of his sleeping wife.
o No doubt that this is willful, deliberate, and premeditated murder.
 Court worried about slippery slope arguing that society would be almost completely unprotected from
criminals if the law permitted a blind or irresistible impulse or inability to control one’s self to excuse or
justify a murder or to reduce its severity.
 PA later clarified the Carroll holding: “the requirement of premeditation and deliberation is met whenever
there is a conscious purpose to bring about death… We can find no reason where there is a conscious intent
to bring about death to differentiate between the degree of culpability on the basis of the elaborateness of
the design to kill.”

State v. Guthrie (Supreme Court of Appeals of West Virginia, 1995):

 D pulled a knife from his pocket and stabbed a fellow coworker after the coworker had been teasing D.
o D had a number of psychiatric problems.
 For a killing to be considered murder in the first-degree, the defendant must have thought about and
weighed his options before acting. Cannot be spontaneous behavior.
 Court said that there must be some period of time between the formation of the intent to kill and the actual
killing, which indicates an opportunity for some reflection on the intention to kill after it is formed. The
accused must then act purposely after contemplating to kill.
o Rationale: society considers someone who deliberates about killing and then acts as more
dangerous than someone who kills in the heat of the moment. They are thus more morally
blameworthy and also harder to deter.
 If some evidence that the killer weighed his decision and then acted, this is first-degree murder.
Spontaneous and nonreflective killing is second-degree murder.
 The Carroll approach basically equates premeditation with any intent to kill. The Guthrie approach
is more akin to intent to kill plus deliberation.
 The California Supreme Court in Anderson held that evidence to sustain a finding of premeditation
generally falls into three basic categories:
o Facts regarding the defendant’s behavior prior to killing which might indicate a design to take life
(planning activity).
o Facts about the defendant’s prior relationship with the victim which might indicate a reason to kill
(motive).
o Evidence that the manner of killing was so particular and exacting that the defendant must have
intentionally killed according to preconceived design.
 Following the MPC, some states have rejected premeditation as the basis for identifying murders that
deserve the greatest punishment.
 Problem with premeditation is that it can lead to punishment for first-degree murder in mercy killings since
person thought about their actions. However, we intuitively want to say that it is better that the person
weighed the options before conducting the mercy killing.

Provocation
Girouard v. State (Court of Appeals of Maryland, 1991):

 Wife was taunting D. He grabbed a knife and stabbed her. Immediately horrified by his decision, he tried to
kill himself and then called the police.
o Convicted of second-degree murder.

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  D argued that manslaughter a catchall for homicide that lacks the malice of murder and should be expanded
to include his actions.
o State countered that the words of the victim, no matter how abusive or taunting, fall into a
category that society should not accept as adequate provocation.
 Traditional reasons for reducing a homicide to manslaughter were categorized. However, court rejected
these categories and applied a reasonable person standard.
 For provocation to be adequate to reduce a homicide from murder to manslaughter, it must be
calculated to inflame the passions of a reasonable man and tend to cause him to act for the moment
from passion rather than reason.
o Words often not sufficient, unless they are accompanied by some threat of physical violence.
 Here, the provocation not sufficient to downgrade the killing. Standard for provocation is reasonableness,
should not be altered due to frail minds.
 Social necessity also dictates that provocation should not be extended here because plenty of domestic
fights lead to anger. However, should not allow that to reduce a killing from murder to manslaughter.

Maher v. People (Supreme Court of Michigan, 1862):

 D convicted of assault with intent to kill and murder. D entered a saloon, approached victim, said
something to him, and shot him.
o D offered evidence to show adultery between his wife and the victim less than an hour before the
assault.
 Provocation is sufficient to reduce a murder charge to manslaughter when it would cause a
reasonable person to act in passion without reason.
o Test is whether, at the time of the act, an ordinary man would be disturbed by passion to an
extent which would render a man of average disposition liable to act rashly or without due
deliberation or reflection.
o The same standard applies to the cooling period. If not enough time has elapsed to allow a
reasonable person to calm, then you can say that the defendant was provoked.

Director of Public Prosecutions v. Camplin (House of Lords, 1978):

 15 year old killed another kid. Only defense was provocation.

o Tried to argue that he should be held to the standard of a reasonable boy of his own age.
 Reasonable person is a person having the power of self-control expected of an ordinary person of the
sex and age of the accused, plus a consideration of the individual characteristics of the defendant.
Question is whether such a person would lose his self-control and respond in the same manner if they
had been provoked.
o The reasonable person is not exceptionally excitable, but is possessed of such powers of self-
control as everyone is entitled to expect of his fellow citizens in a modern society.
 To taunt a person because of his race, physical infirmities, or some shameful incident of the past may well
be considered to be more offensive to the person addressed, no matter how equable his temperament, if the
facts on which the taunt is founded are truer than it would be if they weren’t. Thus, individual
characteristics matter.
 Also, to require old heads on young shoulders is inconsistent with the law’s compassion for human
infirmity.
 Dissent: have an objective standard because a subjective standard could lead to too many provocation
defenses. Effect of an insult will often depend entirely on the person who is insulted.
o Wants to take words into account to determine the gravity of the provocation. Basically, if
insulting a person for some characteristic, it is more harmful than saying the same thing to a
person without this characteristic.
 Majority doesn’t like this idea because it believes that it is too difficult for a jury to
determine the gravity of an insult based on words without also allowing them to consider
how person with similar characteristics would react.

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  Difference between majority and dissent: majority looking at how a person with
defendant’s characteristics would react to provocation, dissent looking at the
nature of the provocation.
 The Girouard case illustrates the predominant common-law position that only a few circumstances
are sufficient provocation.
 By contrast, Maher illustrate the view that the jury should decide if the facts of the case demonstrate
sufficient provocation.
o The minority view.
o One problem with leaving the question to the jury is that it encourages the Texas “son-of-a-bitch
deserved it defense.” Basically, you make the victim look so awful that the jury feels sympathy for
the defendant and reduces the degree of the homicide or outright acquits.
 One classic justification for the provocation doctrine is that human nature is frail.
o However, provocation is not a finding that an individual’s behavior was morally acceptable.
Simply an excuse.
 Provocation as a partial justification – an individual is to some extent morally justified in making a punitive
return against someone who intentionally causes him serious offences, and this serves to differentiate
someone who is provoked to lose his self-control and kill from the unprovoked killer.

The Felony-Murder Rule

 American view is that the felony-murder rule imposes strict liability for killings that result from the
commission of a felony, regardless of whether the felons knew or should have known that their
conduct was endangering life.
 The rule dispenses of the mens rea requirement, but still needs to be actus reus and causation. Hence,
it must be shown that but for the felony the death would not have occurred, and the result must have been
the natural and probable consequence of the defendant’s actions, or it must have been foreseeable.
 Just as a felony resulting in death can provide a basis for a murder conviction without proof of malice, in
many states a misdemeanor resulting in death can provide a basis for an involuntary manslaughter
conviction without proof of recklessness or negligence.
o Act still must be the proximate cause of the harm.
o Some courts restrict unlawful-act doctrine to malum in se as opposed to malum prohibitum
misdemeanors.
o Some limit the doctrine to misdemeanors that rise to the level of criminal negligence or to
violations that show a marked disregard for the safety of others.
 False imprisonment does not constitute an inherently dangerous felony.
 Felony-murder is falling out of favor.

Katz’s Analysis of the Justifications for the Felony-Murder Rule

 Deters people from committing a crime because of possibility of increased punishment.

o However, should already be deterrence with punishment for the felony.
 Katz’s favorite argument. Felony-murder rule just another way of stating that proposition that a
person can be convicted of murder because they created an unjustified risk that led to another
person’s death.
o In essence, acted recklessly – low risk but negative justification since they were purposely
engaging in illegal behavior.
o § 210.2(b): basically a felony-murder rule. Allows for a murder conviction if homicide committed
recklessly under circumstances manifesting extreme indifference to the value of human life.
 Think that if death occurs in the course of a crime, it occurred recklessly because the act
of a committing a crime is so unjustified.
 Forces people to commit a felony more carefully.

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 o However, people can still be convicted of homicide if they kill someone with the adequate mens
rea, so there is already deterrence in place.
 Felony-murder only seems to make prosecution easier by getting around the mens rea
requirement.

Academic Commentary

 The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding
them strictly responsible for killings they commit.
 Basis justification for the rule seems to be that a wrongdoer must run the risk that things will turn out worse
then she expects them to be after deciding to commit a crime.
o However, violates the basic principle of just punishment. Punishment must be proportional to the
wrongdoing. When the felony-murder rule converts an accidental death into first-degree murder,
then punishment is rendered disproportionate to the wrong for which the offender is personally
responsible.
 Two deterrence arguments for the felony-murder rule:
o Threat of a murder conviction for any killing during a felony may induce a party to forego
committing the felony.
o Also aimed at discouraging certain conduct during the felony.

The Inherently Dangerous Felony Limitation

People v. Phillips (Supreme Court of California, 1966):

 Kid dying and needed eye removed to save his life. Some loon convinced his parents that he could save the
kid’s life and eye. Charged them for treatment, but the kid died.
o Trial judge instructed the jury that they could find D guilty of second-degree murder if they found
that the defendant had committed the felony of grand theft, and the child died as a proximate
result.
 The felony-murder rule only applies to inherently dangerous felonies. This does not mean that some
behavior during the felony that threatens life suffices. The felony, as a whole needs to be inherently
dangerous.
o Look to the abstract nature of the felony rather than the specific facts of a case.
o Why?
 Too many felonies so could get a number of felony-murder convictions for less
significant felonies.
 If the goal is to deter people, not going to deter their behavior in crimes that aren’t
inherently dangerous by using a felony-murder rule because they wouldn’t think of the
murder anyways.
 Here, felony of grand theft not inherently dangerous.

The Merger Limitation

People v. Smith (California Supreme Court, 1984):

 D convicted of second-degree murder and felony child abuse after he was hitting a child (fairly brutally)
and the kid died as a result.
o Judge instructed jury that an unlawful killing, whether intentional, unintentional, or accidental, is
second-degree murder if it occurs during the commission of a felony inherently dangerous to
human life, and that felony child abuse satisfies the standard.
 Felony-murder rule inapplicable to felonies that are an integral part of and included in fact within
the homicide. If the purpose of the felony was the assault that led to the murder, then felony-murder
rule will not apply. The felony must have a different underlying purpose.

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 o Rationale: use of the felony-murder rule in such cases would effectively preclude the jury from
considering the issue of malice aforethought in all cases wherein homicide has been committed as
a result of a felony. Also eliminates the provocation defense.
o Also, when allowing the felony-murder rule in felonies that are merged with the homicide, the
marginal deterrence argument falls apart. If someone is committing assault with a deadly weapon,
can’t deter them and force them to act carefully because already committed to killing someone.
o No point with general deterrence either because the original felony already provides deterrence.
 Here, felony-murder rule will not apply because the purpose of the child abuse was the “very assault which
resulted in death.”
o The underlying felony of child abuse was an integral part of and included in fact in homicide.

Merger doctrine applied to the worst felonies because they could already constitute homicide. Thus, want to
force the prosecution to prove the elements of homicide and not have a way to get around these requirements.

 If we want the felony-murder rule, but we don’t want every homicide to fall under the doctrine (most
homicides consist of some lesser felony such as assault with a deadly weapon), then we have to exclude the
worst types of behavior and subject them to normal homicide analysis.
o If we don’t have merger doctrine, prosecution could use a lesser felony with a lesser mens rea to
get more stringent homicide convictions. Worry about this happening too often.
 When to apply the merger limitation:
o If the use of lesser felonies would allow the prosecution to more easily convict someone of
homicide. Basically, if everything would be felony-murder.
o If marginal deterrence not present because the person is already considering a serious
action.
o If already general deterrence because of murder statute.

Causation
Actual Cause (Factual Cause)
 But-for test: “But for D’s voluntary act, would the social harm have occurred when it did?”
o If the answer is no – if the social harm would not have occurred when it did in the absence of D’s
voluntary conduct – D is an actual cause of the result.
 With concurrent sufficient causes, some courts import the tort law substantial factor test and ask whether
the principal’s actions were a substantial factor in the harm that occurred.
o Can also enlarge the test: “But for D’s voluntary act would the social harm have occurred when
and as it did?”

Proximate Cause (Legal Cause)

 An act that is a direct cause of a social harm is also a proximate cause of it.
 Why do we have proximate cause?
o Don’t want to condemn someone for a harm that was unforeseeable.
o Don’t just have harms. They are harms because they relate to certain social situations. Thus, we
need to know of these situations to consider them a harm.
 An intervening cause is an independent force – another “but for” cause – that operates in producing social
harm, but which only comes into play after the defendant’s voluntary act has been committed or his
omission has occurred.
 The legal issue for consideration is when is the intervening conduct of a third party, the victim, or a natural
force sufficiently abnormal that “it no longer seems fair to say that the social harm was caused by the
defendant’s conduct?”

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  Sometimes, a defendant’s causal responsibility for the ensuing harm is exceptionally insubstantial in
comparison to that of the intervening cause, and they are thus not liable.
 To many courts, the “linchpin” of proximate causation is whether the intervening party’s acts were
reasonably foreseeable.
 Can manipulate foreseeability.
o If you want something to appear foreseeable, use broad descriptions.
o If you want something to appear unforeseeable, use narrow ones.
 A responsive intervening cause is an act that occurs in reaction or response to the defendant’s prior
wrongful conduct.
o Generally, a responsive intervening cause does not relieve the initial wrongdoer of criminal
responsibility, unless the response was not only unforeseeable, but highly abnormal or
bizarre.
 A coincidental intervening cause is a force that does not occur in response to the initial wrongdoer’s
conduct. The only relationship between the defendant’s conduct and the intervening cause is that the
defendant placed the victim in a situation where the intervening cause could independently act on
him.
o Common law rule of thumb is that a coincidental intervening cause relieves the original
wrongdoer of criminal responsibility unless the intervention was foreseeable.
 When a defendant’s active force has come to rest in a position of apparent safety, the court will follow it no
longer.
 A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate,
and informed” – that is, a voluntary, knowing, and intelligent – intervening human agent that in the
case of the intervention of a natural force or the actions of a person whose conduct is not fully free.
 Omissions will rarely supersede a preceding harmful act.
 Many courts find the initial assailant liable for the victim’s death even when significant medical error
contributes to the result. But courts disagree about the extent to which subsequent medical mistakes affect
the initial assailant’s liability.
 One who successfully urges or assists another to commit suicide is not guilty of a murder, at least so long
as the deceased was mentally responsible and not forced or deceived.
o Most states also reject the possibility of a manslaughter or negligent homicide conviction,
provided that the deceased’s actions were voluntary.
o MPC § 210.5(1) permits a conviction of a person for criminal homicide for causing another
to takes his life, but “only if he purposely causes such suicide by force, duress, or deception.”
o However, a majority of states now have statutes that define a separate offense for assisting a
suicide. Many are similar to MPC § 210.5(2), which makes the offense a felony (punishable
at the same level as manslaughter).

Exceptions to Foreseeability
 Bizarre omission. D brings about some harm that would be mitigated if someone intervened, but odd
circumstances prevent them from doing so.
o E.g. what if buffalo prevent an ambulance from getting to a gunshot victim?
o Shooter is still liable because victim died of the gunshot wound. Just a weird situation preventing
aid from arriving.
 Thin-skull rule: take your victim as you find them. If consequences of harm are unforeseeable, but
still some initial harm foreseeable, then you are liable for the extent of the harm.
o Also applies to other abnormal preexisting conditions.
 Transferred intent: man misses victim, but bullet strikes another person. Intent to kill one person
transferred to the victim.
o MPC § 2.03(2)(a): where the crime requires that a defendant intentionally cause a particular
result, that element of the crime is satisfied if the defendant accidentally inflicts that injury
on one person while intentionally trying to injure another.

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Katz’s Discussion of Intervening Causes
 Law of causation treats physical events that follow from a person’s actions as caused by him or her,
but it ordinarily does not treat human action that follows from an initial actor’s conduct as caused by
that actor, even when the subsequent human action is entirely foreseeable.
o Not all human actions are treated as outside of causal law – only those that are chosen freely, i.e.
are voluntary actions.
o Other acts that we view as caused by a prior actor are those “constrained” by compulsion of duty,
duress, or by a momentary emergency precipitated by the prior actor.
 As in the cases involving subsequent actions intended to cause harm, the voluntary-intervening-actor
doctrine in the setting of reckless subsequent conduct can be invoked only when that subsequent action
reflects a fully voluntary choice.
o Courts therefore have no hesitation in holding that a subsequent actor’s risky choices do not
negate the liability of the first actor, when those choices are the result of a predicament created by
the first actor.
 Intentional actions of another party can intervene to break the chain of causation that results from a
principle’s criminal conduct, but it must be a sufficiently free choice.
o If an intervening act is not entirely free, then it may not break the chain of causation. The
more constrained the other party’s acts, the greater the argument that these actions should
not break the causal chain.
 Reckless acts straddle the line between intervening acts that break the chain of causation (intentional and
knowing acts) and those that don’t (negligence).

MPC
 § 2.03(1)(a) of the MPC applies the but-for rule. Cause is defined under the Code as “an antecedent
but for which the result in question would not have occurred.”
 § 2.03(4) relates to proximate cause. Under the Code, the defendant has not acted with the requisite
culpability unless the actual result, including the way in which it occurred, was not “too remote or
accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his
offense.”
o Thus, the varying and sometimes inconsistent proximate causation factors developed by the
common law are replaced with a single standard, which expressly invites the jury to reach a
commonsense, or just, result.

Cases
People v. Acosta (Court of Appeals of the Fourth District of California, 1991):

 D led police on a chase. Helicopter involved, but two collided and occupants died.
o D argued that he wasn’t the proximate cause of the crash. A ground collision foreseeable, but not
one in the air.
 Proximate cause used to separate those results for which an actor will be held responsible from those not
carrying as much responsibility.
 The standard should be, exclude the extraordinary results and allow the trier of fact to determine the
issue on the particular facts of the case using the “common sense of the common man to common
things.” It does not involve the defendant’s state of mind, but focuses on the objective conditions
present when he acted.
 But for D’s actions, helicopters would not have crashed.
 Also, the result was not highly extraordinary. Had not been a helicopter crash in circumstances prior, but it
was still a possible consequence “which reasonably might have been contemplated.”

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  Dissent: foreseeable that D could have hurt someone on the ground, but to extend that to the air is
nonsensical. People in the air not in the zone of danger and the manner and circumstances of the crash in
this case could hardly have been foreseen.

People v. Brady: man recklessly started a fire in a wooded area. Planes had to come in to put it out, but two crashed.
D found guilty and court held that the deaths were reasonably foreseeable because the location of the fire would
require multiple planes flying at a low altitude.

People v. Arzon (Supreme Court, New York Country, 1978):

 Guy set a fire intentionally, the fire spread. Fire department came, decided they could do nothing and were
leaving when another fire started. Blocked their escape and one man died.
o Initial guy charged with second-degree murder and tried to argue that he didn’t cause the
fireman’s death.
 Proximate cause does not require that the actor intended the particular harm that occurred. It
suffices that the harm was foreseeable as being reasonably related to the acts of the defendant.
 Defendant’s conduct also need not be the exclusive cause of the victim’s death. A person is liable if
his behavior was a sufficiently direct cause of the death.
 Here, it is foreseeable that firemen would respond to the fire, thus exposing them to danger. Consequently,
the fire that the defendant started was an indispensable link in the chain of events that resulted in the death.
 At the least, the defendant’s act placed the deceased in a position where he was particularly vulnerable to
the separate and independent force (the second fire).

Warner-Lambert: chewing gum factory exploded. Court said that the defendant must be able to foresee the
“specific-causal-mechanism” that set off the chain of events to be guilty.

People v. Campbell (Court of Appeals of Michigan, 1983):

 Two men drinking heavily. D encouraged other man to kill himself and provided him a gun. D killed
himself.
o D arguing that he didn’t cause homicide because it was a suicide.
 Not the proximate cause of a harm if there is an intentional intervening act by an autonomous
individual.

People v. Kervorkian (Supreme Court of Michigan, 1994):

 D assisting in suicides with elaborate contraptions that gave each person the means of ending their own life.
 A conviction of murder is proper if a defendant participates in the final overt act that causes death, such as
firing a gun or pushing the plunger of a hypodermic needle, but not where a defendant is involved merely
in the events leading up to the commission of the final over act, such as furnishing the means.
 Once again, D not the proximate cause of the harm if there is an intervening intentional act by an
autonomous party.

Stephenson v. State (Supreme Court of Indiana, 1932):

 D abducted a woman and subjected her to various forms of sexual assault. Eventually, she tried to commit
suicide, but only became violently ill.
o D offered to call a doctor, but she refused. He eventually took her home, where she died as a result
of shock, loss of food and rest, actions of the poison and infection, and lack of early treatment.
o D tried to argue that it wasn’t murder because the victim bought the poison herself and took it
without his knowledge.
 Rex v. Valade: D had criminal sexual intercourse with a girl who then threw herself from a window to
commit suicide. Accused found guilty of murder.
 Actions of D left the victim distracted and mentally irresponsible. Her subsequent actions were the natural
and probable consequence of such unlawful and criminal treatment. Thus, D guilty of murder.

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  The intentional intervening act of a third party, though not foreseeable, does not break the chain of
causation if the victim was put in a position where they were not thinking rationally by the
defendant.

People v. Kern:

 Teenagers chasing some black men with bats yelling racial epithets and threatening to kill them. One man
ran across a highway and was struck and killed.
 Court held these men liable because they engaged in reckless behavior that left the man no choice but to try
to escape across the highway (a reckless action).

Commonwealth v. Root (Supreme Court of Pennsylvania, 1961):

 D found guilty of involuntary manslaughter as a result of the death of his competitor in the course of a drag
race on a highway.
 Court found that the deceased chose to drive his car into oncoming traffic, D did not force him to do so.
 Deceased aware that D was acting recklessly, but still drove his car into oncoming traffic. He thus was also
acting recklessly.
 D’s reckless conduct was not a sufficiently direct cause of the competing driver’s death to make him
criminally responsible.
 Where a defendant acts recklessly, but there is a reckless intervening act of another party, the
defendant is no longer considered the cause of any resulting harm
 Dissent: If D did not engage in the unlawful race and operate his vehicle recklessly, then this accident
would not have occurred. He helped to create the dangerous event and was a vital part of it. Victim acted
naturally to the stimulus of the situation.

State v. McFadden (Supreme Court of Iowa, 1982):

 Two men drag racing, one lost control and died.

 If an actor’s behavior was reckless, then he can be criminally liable for all of the foreseeable
consequences of his recklessness, including the reckless actions of other parties.

Commonwealth v. Atencio (Supreme Judicial Court of Massachusetts, 1963):

 Two men playing Russian roulette and one obviously died. D charged with involuntary manslaughter.
 A defendant can be found to be the cause of harm when their reckless conduct helps to bring about
the reckless acts of the harmed party, even if those acts independent intervening cause.
 Commonwealth has an interest in ensuring that the deceased should not be killed by wanton or reckless acts
of himself or others. Such conduct could be found in the concerted action and cooperation of the defendants
in helping to bring about the deceased’s foolish acts.
o There may have been no duty on the defendants to prevent the deceased from playing the game,
but there was a duty not to cooperate or join with him in it.

Hypos

1. Accused attempts to shoot husband, misses. He attempts to go to a friend’s home, but is in a train crash and
dies.
 But-for the attempted homicide, the husband would not have been on the train when it crashed.
 Unforeseeable circumstances, so look to three exceptions:
o No transferred intent because one victim.
o No bizarre omissions.
o Not a thin-skulled victim.
 Intervening act of the train. It matters why it crashed:

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 o If the conductor was attempting suicide, then his actions break the chain of causation
because his actions constituted an intentional intervening act on the part of a third party.
o If simple negligence, then the chain of causation is not broken.
o Courts split on issue of recklessness.
2. Accused shoots at deceased intending to kill him, but the bullet misses. Still, victim dies of fright.
 But-for the shot, victim wouldn’t have freaked out.
 Unlikely that it was foreseeable, but falls within the egg-shell plaintiff exception. Foreseeable that
some harm could result so increased harm resulting from plaintiff’s fragile psyche does not
destroy causation.
3. Drunk drives with lots of children. Crashes into truck stalled in the middle of the road around the bend,
which failed to leave its lights on and give warning. Children died.
 But-for cause somewhat debatable, however likely that but-for his drunkenness he could have
stopped short.
 Foreseeable that he could crash. Does other driver’s actions destroy causation? Would have to
argue that they were reckless, but more likely just negligent.
 What if unforeseeable? Likely meets preexisting abnormal condition (variation of egg-shell
plaintiff). Some harm foreseeable, so doesn’t matter that it happened in an odd manner.
4. Man struck on the head by a mace. Goes to the hospital and dies of meningitis due to med mal.
 Foreseeable that someone could die at the hospital and negligent intervening act doesn’t break the
chain.
 What if he died of scarlet fever contracted from a nurse?
o Probably unforeseeable.
 No transferred intent.
 No bizarre omission.
 No egg-shell plaintiff.
 Thus, no causation.
 Killed by crazy guy.
o Not foreseeable.
 No transferred intent.
 Probably not an abnormal preexisting condition unless the guy always killed
people in the hospital.
 No bizarre omission unless the murderer kept the doctor from helping the patient
after he came in for initial harm.
 Shaky reasons to keep chain of causation.
o If foreseeable: intervening actor acting intentionally, so breaks the chain of causation.
 Would also likely apply to unforeseeable cases.
 Deliberately takes pill to end misery. Involuntary choice to some extent, so no break in the chain.
5. Man throws a grenade into a room to kill another. That man throws the grenade out of the window and it
kills people.
 Could say foreseeable, but second man’s actions not voluntary so still causation.
 Could say unforeseeable and transferred intent doctrine would hold the first man liable.
o However, still intervening act of another, which is probably always relevant.
 But not voluntary here, so irrelevant in this situation.

Accomplice Liability
General Principles

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  A secondary party is an accomplice of the primary party in the commission of an offense if he
intentionally assists that party to engage in the conduct that constitutes the crime, i.e. if he intends to
assist in the crime and, in fact, assists.
o Assists a general term that includes aiding, abetting, encouraging, soliciting, or advising the
commission of an offense.
 Accomplice liability is derivative in nature. That is, an accomplice is not guilty of an independent offense,
rather he derives his liability from the primary party with whom he associated himself.
 Why do we have accomplice liability?
o Similar to civil agency law. An accomplice is held accountable for the conduct of the primary
party because, by intentionally assisting the primary party, the accomplice voluntarily identifies
himself with another.
o She who chooses to aid in a crime forfeits her right to be treated as an individual.
 A secondary party is accountable for the conduct of the primary party even if his assistance was
casually unnecessary to the commission of the crime. Why?
o Secondary party’s liability derivative. Thus, it is sufficient to show that they acted with the
requisite mens rea and that the principal caused the social harm.
 Punishment is generally the same for principles and accessories.
 No longer the case that accessories cannot be convicted until the principal is convicted.

Mens Rea of Complicity

 Courts frequently state that a person is an accomplice in the commission of an offense if he
intentionally aids the primary party to commit the offense charged.
 Broken into two dual intents:
o The intent to render the conduct that, in fact, assisted the primary party to commit the
offense.
o The intent, by such assistance, that the primary party commit the offense charged.
 May be more precisely correct to state that an accomplice must possess two states of mind:
o The intent to assist the primary party to engage in the conduct that forms the basis of the
offense.
o The mental state required for commission of the offense, as provided in the definition of the
substantive crime.
 Almost always, the second mental state may be inferred upon proof of the first. Likewise,
the absence of proof of the first mental state will demonstrate the lack of the second
mental state.
 Mens rea of accomplice liability is intent. In Judge Learned Hand’s words, the complicity doctrine requires
that the secondary party “in some sort associate himself with the venture, that he participate in it as in
something that he wishes to bring about, that he seek by his action to make it succeed. All the words used –
even the most colorless ‘abet’ – carry an implication of purposive attitude towards the crime.”
 Conviction of an accomplice in the commission of a crime of recklessness or negligence is permitted as
long as the secondary party has the two mental states that accomplice liability requires: the intent to assist
the primary party to engage in the conduct that forms the basis of the offense; and the mental state – intent,
recklessness, or negligence, as the case may be – required for commission of the substantive offense.
 As long as the secondary party acts with the purpose of assisting the principal in the conduct that
constitutes the offense – and has the level of culpability required as to the prohibited result, if any, of
the offense – he should be deemed an accomplice if his culpability as to the attendant circumstances
would be sufficient to convict him as a principal.
 Why do we require purpose instead of knowledge?
o Expansion to knowledge would be too large of an umbrella because many instances where a
person knows their behavior, to some degree, assists in the commission of a crime.
o Purpose used to exculpate people who could foresee a harm, but who are not intimately tied to its
occurrence.

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  One compromise could be to make aid without true purpose a separate crime with a lesser penalty than the
crime aided. N.Y. Penal Code §115:
o A person is guilty of criminal facilitation in the second degree when, believing it probable that he
is rendering aid to a person who intends to commit a crime, he engages in conduct which provides
such person with means or opportunity for the commission thereof and which in fact aids such
person to commit a felony.

Hicks v. United States (SCOTUS, 1893):

 Three men talking while on horses. Rowe began pointing a gun at the victim and D laughed while saying,
“take off your hart and die like a man.” Rowe shot the guy.
o D testified that he had not persuaded Rowe to shoot the man and that he went along with Rowe
because he was scared of him.
 The actions of D must purposely seek to assist the principal in the commission of the crime.
 Here, not clear what D’s words were meant to do. Thus, a question for the jury.
o Katz: purpose requirement difficult to apply. Illustration:
 Could argue that D meant to have the victim killed to save his life (using the man as a
means to an end). Thus, acted purposely.
 In contrast, could argue that D didn’t care whether the victim died, just knew he could.
Acted knowingly, so not an accomplice.
 No clear answer, which is why the distinction between acting purposely and
knowingly is problematic.

State v. Gladstone (Supreme Court of Washington, 1970):

 Third party came to D trying to buy pot. D didn’t have any, but said that another man might. Provided the
third party with the man’s address and drew him a map.
o However, no evidence showing a link between D and the drug-dealer regarding the possible sale.
 An aider and abettor need not be physically present at the commission of the crime to be held guilty
of accomplice liability, his conviction depends on proof that he did something in association or
connection with the principal to accomplish the crime. Critically, he needs to have acted with a
purposive attitude seeking to ensure that the venture succeeded.
 Here, no evidence that D had any communication with the drug dealer in which he tried to induce him to
sell drugs. Not charged as an accomplice in the purchase of pot, charged as an accomplice in its sale.
o D only described a person that could sell pot. Did nothing purposive in furtherance of the crime to
ensure that it occurred.
o Knowingly assisted, but did not purposely assist.
 Would be a dangerous precedent to hold that mere communications to the effect that another might or
probably would commit a criminal offense amount to aiding and abetting of the offense should it ultimately
be committed.

State v. McVay (Supreme Court of Rhode Island, 1926):

 Men running boat in a dangerous manner. Boiler exploded killing passengers. D helped to get the boat
ready knowing that safety precautions were not in place.
o D arguing that can’t be convicted as an accomplice to involuntary manslaughter because that
would require him to intend to commit an inadvertent act.
 May be guilty as an accomplice, though you didn’t intend the crime that occurred, if you
intentionally created the conditions that permitted the harm to occur and had requisite mens rea to
be liable as a principal.
 Here, D intentionally directed and counselled the grossly negligent act (adding too much steam), which
caused the boiler to explode.

Commonwealth v. Roebuck (Supreme Court of Pennsylvania, 2011):

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  Victim lured into an apt. and killed. D helped orchestrate the events, but claimed that he didn’t intend the
unintentional killing with which the principal was charged.
 A person can be guilty of being an accomplice to an unintentional act if he intentionally sought to
promote the conduct that led to the act and his culpability was equivalent to that of the principal.
 An accomplice needs to have specific intent to further the underlying conduct committed by the
principal, but for the result, he need only have the mens rea required for the result element of the
substantive offense.

People v. Russell (New York Court of Appeals, 1998):

 3 men involved in a shootout. Bystander accidentally shot. Couldn’t figure out whose bullet killed him.
Prosecution sought to argue that each D “intentionally aided” in the killing.
 Court found that the fact that defendants set out to hurt one another does not rationally preclude a finding
that they intentionally aided each other to engage in mutual combat that caused the victim’s death.
o Compared case to People v. Abott where two men drag racing when one hit a car and killed its
passengers. Court held that, although the two men were involved in a competitive race, they
intentionally participated in an inherently dangerous and unlawful activity and both therefore
shared equal culpability.
 Here, adequate proof that the three defendants tacitly agreed to engage in a gun battle that placed the life of
an innocent bystander at grave risk and that killed the victim.
 Parallel conduct can be sufficient, if purposeful, to show sufficient assistance to convict a party of
complicity.
 Katz: an odd decision because does not seem like the defendant intended to aid in conduct of the principal
that led to the harm (that is, being shot at). He likely would have preferred not to be shot at. Thus, the case
doesn’t seem to make sense with accomplice liability.

Actus Reus of Complicity

 Cases seem to indicate that a person can be an accomplice without actually helping.
 Unless want to get rid of accomplice liability, can’t require that an accomplice’s behavior be but-for causes
of the harm. Too often the help is not.
 People whose behavior is redundant (i.e. just one of a group helping) can still be liable as an accomplice.
 However, if behavior too far removed from the crime to actually be effectual appears that you won’t be
held liable.

Wilcox v. Jeffery (King’s Bench Division, 1951):

 D a journalist who knew of foreign musicians coming to UK to play a concert (which was illegal) and
reported of their performance. Did not protest the performance and gave it a glowing review.
 Can be an accomplice to a principal if person knew that an act was illegal and assisted it through
minimal encouragement.
o Katz: problem that D didn’t actually facilitate the illegal act and just one of a number of people
present.
 Here, D not accidentally present as he paid to go. Must be held to have been present, taking part,
concurring, or encouraging the act.
o He encouraged the performance, which he knew to be illegal.

Tally:

 Judge held as an accomplice after he sent a telegraph to a telegraph operator to not warn a man that people
were coming to kill him.
o However, doesn’t appear that the operator ever actually delivered the telegraph. Judge tried to aid
crime, but doesn’t appear that he succeeded.

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The Relationship between the Liabilities of the Parties
 At common law, an accessory could not be convicted of the crime in which he assisted until the principal
was convicted and, with the limited exception of criminal homicide, could not be convicted of a more
serious offense or degree of offense than that of which the principal was convicted.
o Most states have abrogated these common law rules.
 Accomplice liability is derivative in nature, which means that for an accomplice to be liable for an
offense, there must be a primary party. For an accomplice to guilty of a crime, there must have been
a crime committed by another person from whom the accomplice’s liability originates.
o When the primary party is acquitted on the basis of an excuse, his acquittal should not bar a
successful prosecution of a secondary party to whom the excuse does not extend because an
acquittal means that the primary party’s conduct was wrongful, but that he was not responsible for
it due to a personal excusing condition. If primary party guilty of a crime and his conduct
wrongful, no policy reason that secondary party should not be convicted of assisting in the
wrongful act.
 Sometimes accomplice is exculpated because the principal didn’t actually commit a crime.

State v. Hayes (Supreme Court of Missouri, 1891):

 D proposed to Hill that he join him in a burglary of the store. Hill knew the owner and agreed in order to
entrap D.
 A person cannot be an accomplice to a crime if there is not common motive. That is, if a person does
not intend to commit a crime, or their behavior is not negligent or reckless in bringing about the
circumstances leading to a harm, then a person cannot be guilty as an accomplice to that “crime.”
 Here, no doubt that Hill did not enter the warehouse with intent to steal. Didn’t commit a crime.
o D did not commit the act constituting the crime, can only be guilty as an accomplice.
 Instruction to jury should be: “If Hill broke into and entered the wareroom with felonious intent, and the
defendant was present, aiding him with the same intent, then he is guilty as an accomplice. If Hill entered
the wareroom with no design to steal, but simply to entrap D, and capture him in the commission of a
crime, and D did not enter the room himself, then he is not guilty of burglary and larceny as charged.”

Vaden v. State (Alaska, 1989):

 Man posed as a hunter and got D to aid him in committing illegal hunting practices.
 Court upheld the conviction claiming that the actions of the officer were not so outrageous as to violate due
process.
 Dissent: Should not be accomplice liability because of the long-standing doctrine that the act of a
feigned accomplice may never be imputed to the targeted defendant for purposes of obtaining a
conviction.
o General rule is that one who aids and abets another in criminal activity is liable for all of the
“natural and probable” consequences of his accomplice’s acts. Thus, once law enforcement has
succeeded in persuading a person to take some substantial act in furtherance of his general
criminal scheme, the ultimate liability of the targeted defendant will depend upon which
foreseeable crimes the agent chooses to commit in order to secure convictions of the person as an
accomplice.

MPC
 § 2.06(1): a person is guilty of an offense if he commits it “by his own conduct or by the conduct of
another person for which he is legally accountable, or both.”
 § 2.06(2)(a): one is guilty of the commission of a crime if he uses an innocent-instrumentality to
commit the crime. D is legally accountable for the conduct of an innocent or irresponsible person if he has

36
 the mental state sufficient for the commission of the offense and causes the innocent or irresponsible person
to engage in criminal conduct.
o Doctrine only applies if D causes X to engage in the conduct. D must have done something to
manipulate or otherwise use X, so that it may fairly be said that, but for D’s conduct, X would not
have engaged in the conduct for which D is being held accountable.
 § 2.06(2)(b): a person may be held accountable for another person’s conduct if the law defining an
offense so provides. E.g. assisting in a suicide.
 § 2.06(2)(c): a person is legally accountable for the conduct of another person if he is an accomplice
of the other in the commission of a criminal offense.
 § 2.06(3)(a): a person is an accomplice if , with the requisite mens rea, he:
o Solicits a person to commit an offense.
o Aids, agrees to aid, or attempts to aid P in the planning or commission of the offense.
o Has a legal duty to prevent the commission of the offense, but makes no effort to do so.
 A person is an accomplice only if he assists “with the purpose of promoting or facilitating the
commission of the offense.”
o MPC rejects that argument that accomplice liability should apply to one who knowingly, but not
purposely, facilitates the commission of a crime.
 § 2.06(4) provides that, when causing a particular result is an element of a crime (e.g. death with
homicide), a person is an accomplice in the commission of the offense if:
o He was an accomplice in the conduct that caused the result; and
o He acted with the culpability, if any, regarding the result that is sufficient of the offense.
o E.g. man tells a cabbie to drive as fast as possible to the airport. Cabbie hits someone and charged
with manslaughter. Man can be held as an accomplice because he intended to facilitate the risky
conduct that led to the harm, and he was reckless regarding the result, meeting the culpability of
the principal.
 Only applies to result crimes.
 § 2.06(7): an accomplice in the commission of an offense may be convicted of a crime, upon proof of its
commission by another person, regardless of whether the other person is convicted, acquitted, or not
prosecuted. Further, an accomplice may be convicted of a different offense or different degree of offense
than the primary party is convicted.
o Doesn’t seem to let off someone in D’s position in Hayes. Seems to apply when the prosecution
can’t hold principal liable for some reason even though they did commit a crime.
 § 2.06(5): a person who is legally incapable of committing an offense may be held accountable for the
crime if it is committed by another person for whom he is legally accountable.
 § 2.06(6), unless the Code otherwise provides, three exceptions to accomplice liability:
o D is a victim of the offense. E.g. someone in statutory rape case who consented to sex.
o Not an accomplice if conduct is “inevitably incident” to the principal’s commission of an offense.
E.g. not accomplice to sale of drugs if you are the buyer because you are “inevitably incident” to
the commission of the offense.
o A person is not an accomplice in the commission of a crime if he terminates his participation
before the crime is committed, and if he:
 Neutralizes his assistance.
 Gives timely warning to the police of the impending offense.
 Or, in some manner attempts to prevent the commission of the crime.
 Code silent on whether purpose required as pertains to attendant circumstances. Thus, actor must have a
purpose with respect to the proscribed conduct, with his attitude towards the circumstances to be left to
resolution by the courts.
o Common law requirement that accomplice have same mens rea regarding attendant
circumstances as required by the substantive crime may still apply.

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  When a defendant is charged with an attempt, the MPC requires that the defendant have the purpose to
produce the proscribed result or his belief that his conduct will cause that result, even when some lesser
mens rea would suffice for the offense if successfully completed.
o But, when charged with complicity, the required mens rea for the resulting harm is not purpose,
but only the required mens rea for the commission of the charged offense.
 However, MPC less demanding in cases of attempts than in cases of complicity with regard to attendant
circumstances, holding that the mens rea for attendant circumstances in cases of attempt is not purpose, but
only the mens rea required for the completed crime.

Attempts
A criminal attempt occurs when a person, with the intent to commit an offense, performs some act done
towards carrying out the intent. The action must constitute some substantial step, beyond mere preparation,
toward commission of the offense.

Why do we punish attempts?

 Utilitarian analysis:
o Deters people from attempting to a commit a crime.
o Anyone who attempts to commit a crime is dangerous. Whether or not successful, that person
presents a threat to society, and, therefore, her incapacitation/rehabilitation is justifiable, even if
she fails in her criminal plans.
o If there was no attempt liability, then police officers would be incentivized to allow the crime to
occur so they could punish the wrongdoer, which is counterintuitive.
 Retributivist analysis:
o Someone who attempts to commit a crime is as morally culpable as someone who succeeds in it,
the latter is just more skilled or has better luck. Thus, they should be punished equally.
o A person who attempts a crime endangers the community and hence needs to be punished to
restore the public order.

Mens Rea
 Criminal attempts involves two intents:
o Actor must intentionally commit the acts that constitute the actus reus of an attempt. That
is, she must intentionally perform acts that bring her in proximity to commission of a
substantive offense.
o Actor must perform these acts with the specific intention of committing the target crime,
even if the target crime requires some lesser mens rea.
 At times, a prosecutor must prove for attempts a higher degree of culpability than they would have to prove
for the successful crime.
 Why do we require intent to commit the specific offense?
o Linguistic. To attempt something is to try to accomplish it, and one cannot be said to try if one
does not intend to succeed.
o Moral. One who intends to commit a criminal harm does greater moral wrong than one who does
so recklessly or negligently.
o Don’t allow knowledge to suffice because attempts require us to envision how something would
have happened if the crime had been successful. Difficult to do with a mens rea less than purpose.
 A special case. Most states have held that attempted felony-murder is not a cognizable offense.
Rationale: offense of attempted murder requires a specific intent to kill and the defendant’s intent to
commit a felony does not substitute for the intent to kill a human being.

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  Attempted manslaughter. A person who intentionally kills another in sudden heat of passion, as the
result of adequate provocation, is guilty of voluntary manslaughter. If a person in such an emotional
state attempts to kill the provoker, but fails, the actor may properly be convicted of attempted
voluntary manslaughter. No reason of logic precludes this result, as the provoked actor possesses the
specific intent to kill.
o However, the overwhelming rule is that a person may not be convicted of attempted involuntary
manslaughter, as the offense is based on a mens rea of recklessness or negligence. Cannot intend
to commit an unintentional crime.
 Conduct crimes. No logical reason why a person should not be convicted of an attempt to commit
such a conduct crime, as long as she possesses the specific intent to engage in conduct which, if
performed, would constitute the substantive offense.
 Attendant circumstances. Most agree that the ordinary specific-intent requirement of attempt law
should not apply to attendant circumstances. Some favor the proposition that a person should be
convicted of a criminal attempt if she is reckless with regard to any attendant circumstances.

Smallwood v. State (Court of Appeals of Maryland, 1996):

 D convicted of assault with intent to murder because he raped women while HIV positive without
protection. Argued that he didn’t intend to kill the women, at most he was reckless.
 Required mens rea in an attempt crime is the intent to produce the proscribed result, even when
some lesser mens rea would suffice for conviction of the completed offense.
 Thus, D only guilty if the trier of fact could find that he intended to murder when he raped the three
women.

Actus Reus
 Problem of drawing the line in attempts of what actions will constitute the crime because of competing
impulses. On the one hand, the courts and legislators have a desire to ease the burden on police, whose goal
is the prevention of crime. On the other, if the courts authorize police intervention too early, innocent
persons, as well as those with still barely formed criminal intentions – persons who might voluntarily turn
back from criminal activity – may improperly or needlessly be arrested.
 Last Act Test: some courts used to state that a criminal attempt only occurred when the person performed
all of the acts that she believed were necessary to commit the target offense.
o Today, general agreement that an attempt occurs at least by the time of the last act, but no
jurisdiction requires that it reach this stage on all occasions.
 Dangerous Proximity Test: a person is guilty of an attempt when her conduct is in “dangerous proximity
to success,” or when act “is so near to the result that the danger of success is great.”
o No clear point of proximity (differs with the circumstances), however Holmes stated that courts
should consider the nearness of the danger, the greatness of the harm, and the degree of
apprehension felt.
o One test suggested in Rizzo was whether D could complete the crime when he was arrested.
 Unequivocality Test: an attempt occurs when a person’s conduct, standing alone, unambiguously
manifests her criminal intent.
o It is as if the jury observed the conduct in video form with the sound muted (so as to not hear the
actor’s potentially incriminating remarks), and sought to decide from the conduct alone whether
the accused was attempting to commit the offense for which she was prosecuted.
 Overt act: just a single act with purpose. However, rarely used.
 Substantive Step Test: significant percentage along the way to committing the crime.
 What is the difference between the substantial step test and the unequivocal act test?
o Unequivocal act test looks just at the act, doesn’t look at other circumstances. In contrast,
substantial step test looks at all of the circumstances and asks if an action was a substantial step
towards the completion of a crime.

39
 o As an example, buying fertilizer to build a bomb under the unequivocal act test probably wouldn’t
constitute an attempt because not clear that this action alone meant to facilitate the completion of a
crime. However, the substantial step test probably satisfied, especially if some other evidence
indicating the actor’s intention to construct a bomb.
 Courts differ over the question whether solicitation itself constitutes an attempt by the person making it.
o Following Church, some courts hold that a solicitation can constitute a punishable attempt if
it represents a “substantial step” under the circumstances.
o But many states adhere to the view that “no matter what acts the solicitor commits, he cannot be
guilty of an attempt because it is not his purpose to commit the offense personally.”
o A number of states now have general solicitation statutes.

People v. Rizzo (Court of Appeals of New York, 1927):

 D convicted of attempted robbery. Clear that he and his conspirators intended to rob a man, and that they
were looking for him when they were arrested, however they had not seen or discovered him at the time of
their arrest.
 Dangerous proximity approach: an act or acts constitute an attempt when they are so near to its
accomplishment that in all reasonable probability the crime itself would have been committed, but
for interference.
o The act or acts must come or advance very near to the accomplishment of the intended crime.
 D planned to commit a crime, and was looking for the opportunity to commit it, but that opportunity never
came since he couldn’t find the man that he sought to rob.
o Thus, no attempt since he could not have finished his crime at the moment he was arrested.

State v. Davis (Supreme Court of Missouri, 1928):

 D and his lady wanted to kill her husband. D talked to Leverton to get an ex-con to kill the man. Leverton
told the police, who posed as the ex-con. D paid the officer to kill the man and was arrested and charged
with murder in the first degree.
 Can’t be guilty of attempted murder for merely soliciting the crime. Also needs to be some act
moving directly toward the commission of the intended crime.
 Here, D only selected a man, made a verbal agreement with him, give him some picture of the target, and
paid him part of the agreed consideration. These are merely acts of preparation, failing to lead directly or
proximately to the consummation of the intended crime.
o Especially important, officer made no act directly or indirectly moving toward the consummation
of the intended crime.

United States v. Church (1989):

 D and his wife divorced. D began talking about hiring a “hit man” to kill his wife. Law enforcement acted
as a “hit man.”
 D met with the agent and approved the plan for the murder. The officer staged a murder, and D expressed
content with its execution. Arrested.
 Can be guilty of an attempt if you solicit someone to commit a crime and do just about every act
short of committing the actual crime yourself.
 Obtaining the services of a “hit man,” detailed participation in the planning of the crime, and payment of
consideration constitutes a “substantial step toward the commission of the crime,” and it establishes the
requisite overt act amounting to more than mere preparation.
o Nothing else D could have done, other than committing the act himself, to further facilitate the
crime.

Defenses
Impossibility

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  Around 2/3 of states have rejected the impossibility defense entirely.
 Defense pertains to cases in which the actor presumably had the requisite mens rea, and has done
everything in her power to commit the target offense, but the desired outcome is predestined to fail, for one
reason or another, because it was impossible for the actor to succeed in consummating the offense.
 At common law, legal impossibility was a defense, but factual impossibility was not. Why?
o Mistakes of law don’t exonerate, but legal impossibility does. Reflects the basic principle that
knowledge of the law is irrelevant to culpability. We simply ignore whether the person thinks they
are doing something illegal or not and instead focus on their actions.
o Likewise, with acts, we focus on the actor’s mental state. If a mistake of fact it exonerates
(because not acting with blameworthy mind), if factual impossibility it doesn’t (because acting
with a blameworthy mind).
 Factual impossibility exists when a person’s intended end constitutes a crime, but she fails to consummate
the offense because of an attendant circumstance unknown to her or beyond her control. Had the
circumstances been as the actor believed them to be, or hoped that they were, the crimes would have been
consummated.
 However, inherent impossibility may be a defense to attempt crimes. If the defense is recognized, it
applies if the method to accomplish the crime was one that “a reasonable person would view as completely
inappropriate to the objectives sought.” E.g. voodoo to kill someone.
o We acquit because the means of committing the crime are so absurd that they don’t pose a threat.
o Could say in Oviedo that it was so inherently impossible for someone to think that what D was
selling was heroin and that should be acquitted for this reason.
 Pure legal impossibility arises when the law does not proscribe the goal that the defendant sought to
achieve. Traditionally, courts have held that “attempting to do that which is not a crime is not attempting to
commit a crime.” United States v. Berrigan.
o Simplest case is when a person performs a lawful act with a guilty conscience, i.e., she believes
she is committing a crime, but she is not. Just as a person may not ordinarily escape punishment
on the ground that she is ignorant of the law’s existence, it is also true that “we cannot punish
people under laws that are purely the figments of their guilty imaginations.”
o Also, D is not guilty of an attempt if, unknown to her, the legislature has repealed a statute that D
believes she is violating.
o Legal impossibility would apply to those circumstances where:
 The motive, desire, and expectation is to perform an act in violation of the law.
 There is intention to perform a physical act.
 There is a performance of the intended physical act.
 The consequence resulting from the intended act does not amount to a crime.
 Intent impossibility: exonerate defendants who did not intend the harm of the offense, but merely accepted
it, because not purposely intending to commit a crime.
o In Dlugash, D claimed that he shot the body because he was scared of the other guy. Thus, he
probably was relieved when he found out he didn’t kill someone. He didn’t intend to kill victim,
just wanted to calm down the actual shooter.
o In Jaffe, guy bought goods because they were cheap, even though he thought they were stolen.
But, if he could have bought the goods without them being stolen for the same price, he would
have done so.

People v. Jaffe (New York Court of Appeals, 1906):

 D bought cloth thinking it was stolen (it wasn’t). Charged with attempting to purchase stolen goods.
 Court reasoned that even if D had completed the act, it would not have constituted a crime because the
goods were not in fact stolen. Can’t know that property is stolen if that is not in fact the case, thereby
failing to satisfy one of the essential elements of the offense.
 “If all which an accused person intends to do would, if done, constitute no crime, it cannot be a crime to
attempt to do with the same purpose a part of the thing intended.”

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  “If the thing is not a crime, he does not intend to commit one whatever he may erroneously suppose.”

People v. Dlugash (New York Court of Appeals, 1977):

 Three men drinking. Argument led one to shoot another. D went up to the victim and shot him multiple
times, even though he thought the victim was dead.
 A person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which
tends to effect the commission of such a crime. It is no defense that, under the attendant
circumstances, the crime was factually or legally impossible of commission, “if such crime could have
been committed had the attendant circumstances been as such person believed them to be.”
o Rationale: what was in the actor’s mind should be the standard for determining his dangerousness
to society and hence his liability for attempted criminal conduct.
 Sufficient evidence here for jury to have found that D thought that his victim was alive. Thus, he can be
convicted of attempted murder because his actions, if the attendant circumstances had been as he supposed
them to be, would constitute attempted murder.

Poorly Explained Complications

 What if D removed pictures, thinking they were fixtures (a collateral civil law), but they weren’t? That is,
what if he thought that he was breaking the law based on his misunderstanding of a collateral civil law?
o MPC would say it is a legal impossibility, so exculpate.
o However, if parallel with mistakes of law then shouldn’t exculpate. Ignorance of collateral civil
law is exculpatory, so misunderstanding of such a law should not be. Thus, in this case legal
impossibility should not exculpate.
 What if man thought he was evading more taxes than he was? Law requires willful evasion, so excuses
mistakes of law. Here, thinks he is willfully evading, but actually isn’t.
o Mistake of law an excuse when statute requires willful evasion of the law, thus legal impossibility
not a defense when a person thinks that they are willfully evading the law.
 What is the parallel case to the reliance exception?
o If a person relies on an erroneous interpretation of the law and believes that they are attempting to
break it then legal impossibility not a defense because mistake of law was in parallel situation.

Abandonment

 Even if a person has done enough to move beyond preparation and can be liable for an attempt, the person
still has an opportunity to abandon that attempt and escape liability.
 Abandonment only a defense if the defendant voluntarily and completely renounces her criminal
purpose.
o Voluntary when it is the result of repentance or a genuine change of heart.
o Not voluntary if the actor is motivated by unexpected resistance, the absence of an
instrumentality essential to the completion of the crime, or some other circumstance that
increased the likelihood of arrest or unsuccessful completion of the offense.
o Not complete if the actor merely postpones the criminal endeavor until a better opportunity
presents itself.
 Why do some jurisdictions allow the defense?
o It encourages desistance by the attempter.
o By voluntarily and completely abandoning an offense, an actor demonstrates that she possesses a
less dangerous character than an ordinary attempter or person who quits the offense out of fear of
arrest.
 Doe abandonment apply in a case in which D shot a man intending to kill him (didn’t), but then changed
mind and chose not to complete the killing?
o Katz: yes because not principled reason for saying no. Hard to draw a convincing line between
attempt and completion, so allow abandonment defense up until time of completion.

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MPC
 The MPC grades inchoate crimes as severely as complete crimes. The theory behind the grading system is
that “to the extent that sentencing depends upon the antisocial disposition of the actor and the demonstrated
need for corrective sanction, there is likely to be little difference in the gravity of the required measures
depending on the consummation or the failure of the plan.”
 § 5.01(1): a person is guilty of an attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime, he:
o (a) purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be; or
 Crime would have been completed but for the attendant circumstances not being correct.
o (b) when causing a particular result is an element of the crime, does or omits to do anything
with the purpose of causing or with the belief that it will cause such result without further
conduct on his part; or
 Last act.
o (c) purposely does or omits to do anything that, under the circumstances as he believes them
to be, is an act or omission constituting a substantial step in course of conduct planned to
culminate in his commission of a crime.
 Substantial step plus unequivocality.
 Katz: (a) and (b) involve situations in which a person has done all they were going to
do in furtherance of the crime, but something prevented its completion.
 (c) involves substantive step test that sufficiently shows criminal intent.
 In general, a person is not guilty of a criminal attempt unless it was her purpose, i.e., her conscious
objective, to engage in the conduct or cause the result that would constitute the substantive offense. Two
exceptions:
o Subsection (1)(b) expressly and subsection (1)(c) implicitly provide that a person is guilty of an
attempt to cause a criminal result if she believes that the result will occur, even if it was not her
conscious object to cause it.
o For attendant circumstances elements, it is sufficient that the actor possessed the degree of
culpability required to commit the target offense.
 In incomplete attempt cases, MPC § 5.01 provides that, to be guilty of an offense, an actor must have done
or omitted to do something that constitutes a “substantial step in a course of conduct planned to culminate
in his commission of a crime.” Rationale: one who engages in such purposive conduct is sufficiently
dangerous to justify state intervention, even if she is not yet close to consummation of the offense.
o MPC used all actus reus tests except overt act.
o § 5.01(2) states that conduct is not a substantial step unless it strongly corroborates the
defendant’s criminal purpose. Substantial step combined with unequivocal act.
o § 5.01(2) also provides a list of recurrent factual circumstances in which an actor’s conduct, if
strongly corroborative of her criminal purpose, “shall not be held insufficient as a matter of law:”
 Lying in wait.
 Searching for or following the contemplated victim of a crime.
 Reconnoitering the contemplated scene of the crime.
 Unlawful entry into a structure or building in which the crime will be committed.
 Possession of the materials to commit an offense, if they are specially designed for a
criminal purpose.
 § 5.01(3): a person may be convicted of a criminal attempt, although a crime was neither committed
nor attempted by another, if:
o The purpose of her conduct is to aid another in the commission of the offense; and
o Such assistance would have made an accomplice in the commission of the crime under the
Code’s complicity statute if the offense had been committed or attempted.
 Pure legal impossibility still a defense.
 § 5.01(4): a person is not guilty of an attempt if:

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 oShe abandons her effort to commit the crime or prevents it from being committed; and
oHer conduct manifests a complete and voluntary renunciation of her criminal purpose.
oNot abandonment if done because the crime was too difficult to complete or the chances of
being caught were too high.
 MPC holds someone liable for an attempt to persuade someone else to commit a crime.

Conspiracy (An Expansion of Complicity and Attempts)

Conspiracy is 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.

MPC definition § 5.03(1): A person is guilty of conspiracy with another person or persons to commit a crime
if with the purpose of promoting or facilitating its commission he:

 (a) agrees with such other person or persons that they or one of more of them will engage in conduct
that constitutes such crime or an attempt or solicitation to commit such a crime; or
 (b) agrees to aid such other person or persons in the planning or commission of such a crime or of an
attempt or solicitation to commit such crime.

Conspiracy has two key aspects:

 It is an inchoate crime that aims at preparatory conduct – the agreement to commit a crime – before it
matures into the actual commission of the substantive offense. This is the stand-alone crime of conspiracy.
 Conspiracy can also be a form of accessory liability. It is a means by which individuals who agree to
commit a crime are held liable for the actions of others in the group.

Conspiracy as an Expansion of Attempt Liability

 The crime of agreeing with another to commit a criminal offense. It is an inchoate crime because it is
punishable whether or not the agreed-upon offense ever occurs.
o Unlike attempts, crime of conspiracy doesn’t merge into the complete offense. That is, a
conspiracy is punishable separately and in addition to the completed offense. Rationale: law
designed to address the “special danger” posed by group criminal activity.
 Conduct can be punished as a conspiracy at points much farther back in the stages of preparation
than the point where liability begins to attach for attempts.
o In some jurisdictions, the agreement alone is sufficient, without any requirement that a
member of the conspiracy commit an overt act in furtherance of it.
o In other situations an overt act must be proved, but the act may fall well short of the kind of
conduct sufficient to constitute an attempt.
 No overt act requirement at common law. “When two agree to carry an unlawful act into effect, the
very plot is an act in itself.”
 However, American statutes have traditionally added an overt-act requirement. Rationale: “the overt
act in a conspiracy prosecution is simply to manifest that the conspiracy is at work… and is neither a
project still resting solely in the minds of the conspirators nor a fully completed operation no longer in
existence.”
o Even when an overt-act is required, it generally can be satisfied by acts that would be considered
equivocal or merely preparatory in the law of attempts.

Interstate Circuit v. United States (SCOTUS, 1939):

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  Ds were two movie chains that dominated the market for exhibiting films in the cities where their theaters
were located, and eight independent corporations that distributed films to theaters, accounting for 75% of
all first-run films exhibited in the U.S.
o Charged with conspiracy in restraint of commerce under the Sherman Act. Thus, gov. had to prove
an agreement.
 Doesn’t have to be an explicit agreement in a conspiracy. It is enough to know of the possibility of
concerted behavior and to participate in it without direct agreement. Can be tacit agreement.
o People agreeing to crime, but haven’t gone far enough for their behavior to constitute an attempt.
o Basically, a group attempt.
 Conspiracy here.
o Strong motive for concerted action because of potential for substantial profits.
o Involved a major change in business practices, which companies would not have agreed do
without knowing that others would do the same.

Conspiracy as an Expansion of Complicity Liability

 When individuals join conspiracies, they may be charged not only with the separate crime of
conspiracy and the target offense (if it is completed); they may also find themselves charged with
additional crimes committed by other members of the conspiracy.
 An agreement between two or more persons to participate in the commission of a crime is the key to a
conspiracy and, therefore to conspiratorial liability. Actual assistance in the crime is not required.
o In contrast, accomplice liability requires proof that an actor at least indirectly participated in the
crime; an agreement to do so is not needed.
 Pinkerton Doctrine: a party to a conspiracy is responsible for any criminal act committed by an
associate if:
o It was committed in furtherance of the conspiracy; and
o It is a foreseeable consequence of the unlawful agreement.
 Doctrine allows for some tenuous relationships. E.g. a patient who conspired with a doctor for an illegal
abortion could be convicted as a conspirator to other illegal abortions that the doctor committed if she could
reasonably foresee him committing abortions on other women.

Pinkerton v. United States (SCOTUS, 1946):

 Two brothers indicted for violation of the Internal Revenue Code. No evidence that one of the brothers
actually participated in the substantive offenses of his conviction, although there was evidence to show that
these substantive offenses were in fact committed by the other brother in furtherance of the unlawful
agreement or conspiracy existing between the brothers.
 If a conspiracy has not been terminated or completed, then a conspirator is liable for the acts of his
co-conspirators that are in furtherance of that conspiracy.
 Here, continuous conspiracy. So long as the conspiracy has not been terminated or accomplished, the
parties are still offending and the partners act for each other in carrying it forward.
 Criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated
commission of the crime. The act done was in execution of the enterprise. The rule which holds responsible
one who counsels, procures, or commands another to commit a crime is founded on the same principle.
 Dissent: Holding one brother liable for the substantive crimes of the other on no more proof than him
conspiring with his brother to commit offenses of the same general character.
o Essentially, the Court creating vicarious liability for conspirators whose partner(s) engage in some
crime.

State v. Bridges (New Jersey, 1993):

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  D in an argument at a party. Left and got friends for support. They ended up shooting into a crowd, killing
bystanders. D convicted of conspiracy to commit aggravated assault and of several substantive crimes,
including murder.
 Co-conspirators can be liable for the acts of other conspirators if those acts were reasonably
foreseeable outcomes of the conspiratorial agreement, even if not within the scope of the conspiracy.
No intention that these acts occur needed.
o Broader than accomplice liability, which requires a defendant to foresee and intend the result of
his acts.
 Here, object of the conspiracy was not murder. However, reasonably foreseeable risk of using guns to
intimidate a crowd was that one shooter would intentionally fire at someone and that the act would be
sufficiently connected to the original conspiratorial plan to provide a just basis for a determination of guilt
for that of the substantive crime.
 Dissent: allowing a sentence of life imprisonment to be imposed on the basis of negligent appraisal of risk
that another would commit a homicide conflicts with the structure of NJ’s code. If D didn’t intend man to
be killed, he couldn’t have been convicted as a principal or as an accomplice.
o Also, D can’t be convicted of conspiracy to commit murder. Was negligent, but no law against
negligent murder. Most reasonable construction of the statute is that liability is only foreseen (and
thus culpable) for those crimes that were the object of the conspiracy.

Support for Pinkerton:

 Major figures in organized crime insulate themselves from being liability as accomplices. Thus,
conspiratorial liability offers an easier root to conviction.
 Conspiracy laws increases the cost of doing business for organized crime in multiple ways:
o Makes it easier to convict low level figures, which means they demand a higher price and thereby
increase the costs of organized crime.
o Increases the flow of information to prosecutors because they have a tool to threaten low-level
players with severe punishment based on the conduct of others, and thereby extract information.
o Gives organized groups an incentive to monitor the behavior of their members to avoid liability
for more severe crimes.

Opposition to Pinkerton:

 MPC rejects Pinkerton and imposes accomplice liability on conspirators for the substantive crimes of their
co-conspirators only when the strict conditions of accomplice liability are met. Rationale: worried about
restricting the scope of liability.

Self-Defense
Overview
 At common law, a non-aggressor is justified in using force upon another if he reasonably believes
such force is necessary to protect himself from imminent use of unlawful force by the other person.
Deadly force is only justified in self-protection if the actor reasonably believes that its use is
necessary to prevent imminent and unlawful use of deadly force by the aggressor.
o Force should only be used if it is necessary. That is, if there is an imminent threat.
o Force cannot be excessive in relation to the harm threatened.
o Must be determination of whether a person felt that force was necessary and also whether a
reasonable person in the same situation would have reached the same conclusion.

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  An aggressor has no right to claim self-defense. One court has defined an aggressor as one whose
“affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal
consequences.”
 American jurisdictions are split on the issue of retreat:
o Many apply a no-retreat rule: a non-aggressor is permitted to use deadly force to repel an unlawful
attack, even if he is aware of a place to which he can retreat and be completely safe.
o On the other hand, some jurisdictions provide that an innocent person threatened by deadly force
must retreat rather than use deadly force if he is aware that he can do so in complete safety.
 Person is only required to retreat if they are subjectively aware of a safe place to which
they can retreat.
 Castle doctrine states that a non-aggressor is not ordinarily required to retreat from his dwelling, even
though he knows he could do so in complete safety, before using deadly force in self-defense.
 Force is said to be imminent if it will occur immediately, or at the moment of danger.
 A person may not defend himself against lawful, i.e., justified force.

Cases

State v. Rupp (Iowa):

 Two men in an argument. Victim walked menacingly towards D who shot him. D claimed that he
reasonably believed that the victim meant to do him serious harm because of previous assaults and threats.
 Self-defense a defense when the force used is reasonable and is exercised only as a last resort.
o Reasonable force is that force which a reasonable person, in like circumstances, would judge
to be necessary to prevent an injury or loss, and no more, except that the use of deadly force
against another is reasonable only to resist a like force or threat.
o Reasonable force, including deadly force, may be used even if an alternative course of action
is available if the alternative entails a risk to one’s life or safety.

People v. Ceballos (California):

 D alleging that he did not commit assault with a deadly weapon because victim hit a trap gun when
burglarizing D’s home. Basic assertion was that D would be able to shoot the victim if he had been present.
 Trap weapons do not qualify as self-defense because they cannot act with the discretion of human
actors.
 Homicide justified when “resisting any attempt to murder any person, or to commit a felony, or to do
some great bodily injury upon any person; or when committed in defense of habitation, property, or
person, against one who manifestly endeavors, by violence or surprise, to commit a felony.”
o Justification usually restricted forcible and atrocious crimes.
 Common law did not allow for deadly force to protect property. However, an exception where the
property was a dwelling or house to prevent dispossession, fire, or burglary.
 Here, D can’t use trap gun.
 More importantly, would not have been allowed to use deadly force even if he was at home since
disproportionate to nonthreatening burglary, so the entire argument is destroyed.

MPC § 3.04

 § 3.04(1): a person is justified in using force upon another person if he believes that such force is
immediately necessary to protect himself against the exercise of unlawful force by the other
individual on the present occasion.
o Immediately necessary substituted for imminency, which authorizes self-protective force sooner
than may be allowed at common law. This is because the issue under the Code is not how soon the
aggressor’s force will be used, but rather whether the innocent person’s need to use defensive
force exists immediately.

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  E.g. think about a hostage situation. We want to allow the hostage to act when he as the
opportunity, rather than when death is imminent.
o Have unlawful force requirement to prevent the use of the defense in a situation where a person
who attacks another is met with defensive force and then kills his victim.
 § 3.11 defines unlawful force as “force, including confinement, that is employed without the consent of the
person against whom it is directed and the employment of which constitutes an offense or actionable tort or
would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or
mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use force.”
 § 3.04(2)(a)(i): a person may not use force to resist an arrest that he knows is being made by a police
officer, even if the arrest is unlawful.
 § 3.11(2) defines deadly force as force used for the “purpose of causing or that [the actor] knows to create a
substantial risk of causing death or serious bodily injury.”
 § 3.04(2)(b): deadly force is unjustifiable unless the actor believes that such force is immediately
necessary to protect himself on the present occasion against death, serious bodily injury, forcible
rape, or kidnapping.
o However, § 3.04(2)(b)(i) prohibits the use of deadly force by a person who, “with the purpose
of causing death or serious bodily injury, provoked the use of force against himself in the
same encounter.”
 Seems to mean that this exception only applies if a person sought to provoke someone
with the purpose of killing them.
o Also, § 3.04(2)(b)(ii) prohibits the use of deadly force against an aggressor if the actor
“knows that he can avoid the necessity of using such force with complete safety by
retreating.”
 If you can retreat safely, you must.
 Exception: retreat is not necessary if the actor would have to retreat from his home,
or even from his workplace.
 However, retreat is required if the actor was the initial aggressor, and wishes to
regain his right of self-protection; or even if he was not the aggressor, if he is
attacked by a co-worker in their place of work.
 § 3.05 defense of others. This section often summarized as saying that the third party aider steps into
the shoes of the actor he is aiding and has the benefit of self-defense to the extent that the person
being aided does.
 Necessity requirement: only entitled to use self-defense if you need to use it to defend against attack. What
is not obvious is exactly how that necessity is to be evaluated when a person could have averted it (e.g.
when a person could have preemptively taken certain actions that would have prevented confrontation,
could have retreated, or could have forfeited property to avoid confrontation).
o It appears that there is no necessity if the actor could have retreated, but not true in all
jurisdictions.
 What if you could avoid going to a place where you can count on having a confrontation, then was it really
necessary for you to use force to defend yourself?
o MPC suggests it depends on what your intentions were when you went there. If you went there to
provoke an attack, you forfeit your right to self-defense. If not your intention, then you don’t.
 What if someone demands your property?
o Depends if it is an object of disputed ownership that the other person has a claim of ownership to.
If yes, force not permitted. If no, can stand your ground and use force to defend your right to it.
 § 3.09: justification afforded by [self-defense] is unavailable when:
o The actor’s belief in the unlawfulness of the force or conduct against which he employs protective
force or his belief in the unlawfulness of an arrest which he endeavors to effect by force is
erroneous and error is due to ignorance or mistake as to the code.
 Mistake of law about what you are allowed to do in self-defense isn’t going to
exonerate you.

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 o When the actor believes that the use of force upon or toward the person of another is necessary for
any of the purposes for which such belief would establish a justification under 3.03-3.08, but the
actor is reckless or negligent in having such belief.
 If recklessly or negligently created the situation, or were reckless or negligent in
assessing it, then self-defense not applicable to crimes that require a reckless or
negligent mens rea.
 E.g. if you recklessly or negligently thought that someone was threatening your life
and killed them, could be prosecuted for manslaughter (since only requires reckless
mens rea) based on your reckless understanding of the situation, but not for
homicides requiring a more culpable mens rea.
 § 3.06(5) use of device to protect property: justification afforded by this section extends to the use of a
device for the purpose of protecting property only if:
o The device is not designed to cause or known to create a substantial risk of causing death or
serious bodily harm, and
o The use of the particular device to protect the property from entry or trespass is reasonable under
the circumstances, as the actor believes them to be, and
o The device is one customarily used for such purpose or reasonable care is taken to make known to
probable intruders the fact that it is used.
 If a person justifiably uses force against an aggressor, but uses such force in a reckless or negligent
manner in regard to the safety of an innocent bystander, the justification defense, which is available
to the person in regard to the aggressor, is unavailable to him in a prosecution for such recklessness
or negligence as to the bystander.

Necessity
Overview
 Where an individual is faced with a choice of harms, his or her act to cause one harm to avoid a
greater one is justified under the defense of necessity.
 Basic elements:
o The actor must be faced with a clear and imminent danger.
o The defendant must expect, as a reasonable person would expect, that his action will be
effective in abating the danger that he seeks to avoid, i.e., there must be a direct causal
relationship between his action and the harm to be averted.
o There must be no effective legal means to avert the harm.
o The harm that the defendant will cause by violating the law must be less serious than the
harm that he seeks to avoid.
o Lawmakers must not have already considered the choice of evils and declared that the
choice should be the one that the defendant did not choose.
o Defendant must not have substantially contributed to the emergency or wrongfully placed
himself in a situation in which he would be forced to engage in criminal conduct.
 Many jurisdictions do not recognize the necessity defense in cases of intentional homicide.

Cases
Regina v. Dudley (Queen’s Bench Division, 1884):

 Men stranded at sea ate one of their own.

o Men thought they would die as no foreseeable salvation.
 It is clear that the killing was murder, thus needs to be necessity to exculpate. However, Court found that
the temptation in this case did not constitute what has commonly been thought of as necessity.

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  Law and morality not the same, but there should not be a complete divorce between the two, which would
occur here if the necessity defense was allowed.
 There is a duty to preserve life generally, but possibly the highest duty is to sacrifice one’s own life.
However, there is no absolute or unqualified necessity to save one’s own life.
 Problem of allowing necessity in such situations would be who should judge whether the behavior was
necessary and against what standard.
 “But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it,
nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime.
It is therefore our duty to declare that the prisoners’ act in this case was willful murder, and that the facts
that are stated in the verdict are no legal justification of the homicide; and to say that in our unanimous
opinion the prisoners are upon this special verdict guilty of murder.”
 Rule seems to be that necessity is not a justification for intentionally taking life.
 Katz: court saying that killing someone so that others may survive is not justified but doesn’t provide
compelling reasons. Seems that they preclude justification as a defense because they do not want to allow
retributive notions of fairness to yield to a utilitarian net-saving of lives analysis. That is, there are some
instances where the law recognizes the importance of maximizing the amount of lives saved, but also
instances where this impulse gives way to the personal right to life (e.g. don’t permit organ harvesting if it
would kill one person to save four).

Public Committee against Torture v. State of Israel (Supreme Court of Israel, 1999):

 The General Security Service investigates individuals suspected of committing crimes against Israel’s
security. Authorizes enhanced interrogation techniques that are deemed as immediately necessary for
saving lives.
 Necessity is not a defense when laid out beforehand as a sort of immunity. Meant to respond to
certain unpredictable situations, not be used by government authorities or persons to immunize
themselves from liability.
 “A person will not bear criminal responsibility for committing any act immediately necessary for the
purpose of saving life, liberty, body, or property, of either himself or his fellow person, from substantial
danger of serious harm, imminent from the particular circumstances, at the requisite time, and absent other
means for avoiding the harm.”
 GSS investigators may avail themselves of the necessity defense, if criminally indicted, if they use
enhanced interrogation techniques to uncover information to save lives.
 However, the very nature of the defense does not allow it to serve as the source of general administrative
power. Therefore, neither the government nor the heads of security services possess the authority to
authorize the use of liberty infringing physical means during the interrogation of suspects.

Bybee Memorandum

 Federal law defines torture as “an act committed by a person acting under the color of law specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon a person with his custody or physical control.”
 In a controversial section, the memo set a high threshold for the degree of pain necessary to constitute
torture. But it also went on to argue that even if a government interrogator were to use methods of that
especially painful sort, a necessity defense could still be available.
 “A detainee could possess information that could enable the United States to prevent attack that potentially
could equal or surpass the 9/11 attacks in their magnitude. Clearly, any harm that might occur during
interrogation would pale to insignificance compared to the harm avoided by preventing such an attack,
which could take hundreds or thousands of lives.”
 Memo outlined two factors that could help to indicate when the necessity defense could properly be
invoked:

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 o The more certain that government officials are that a particular individual has information needed
to prevent an attack, the more necessary interrogation will be.
o The more it appears to be that a terrorist attack is likely to occur, and the greater the amount of
damage expected from such an attack, the more that an interrogation to get information would
become necessary.

MPC § 3.02
 § 3.02(1): a person’s conduct is justified if:
o He believes that his conduct is necessary to avoid harm to himself or another.
o The harm to be avoided by his conduct is greater than that sought to be avoided by the law
prohibiting his conduct.
o No legislative intent to exclude the conduct in the circumstances plainly exists.
 The determination of what constitutes a lesser harm is not left to the actor’s evaluation,
but rather to the judge or jury at trial.
 (b) and (c) basically lay out the situation where the law or legislature has made the cost/benefit analysis of a
certain action and indicated that a justification defense is not permitted.
o E.g. law in Oregon allows for physician assisted suicide if the proper steps are followed. What if a
physician didn’t follow them because a patient was in excruciating pain and wanted to die? (b) and
(c) would seem to preclude the necessity defense because the legislature already created a defense
to assisted suicide in certain situations and intended the defense only to apply to those situations.
o Cases involved are those in which the legislature realized that a special case existed and already
decided a necessity defense, with certain restrictions.
 § 3.02(2): the defense is unavailable if the actor is prosecuted for a crime of recklessness or
negligence and he acted recklessly or negligently, as the case may be, in bringing about the
emergency or in evaluating the necessity of his conduct.
o Can convict someone of a crime that allows for a reckless or negligent mens rea, but not one that
requires a knowing or purposeful mens rea.
 The code provision is one of general applicability. All forms of necessity qualify – defense is not limited to
emergencies created by natural forces, is not limited to physical harm to persons or property, and, most
controversially, may be employed in homicide prosecutions.
 MPC allows for necessity as a defense to homicide. “It would be particularly unfortunate to exclude
homicidal conduct from the scope of the defense. For, recognizing that the sanctity of life has a supreme
place in the hierarchy of values, it is nonetheless true that conduct that results in taking life may promote
the very value sought to be protected by the law of homicide.”
o E.g. Code thinking about situation in which a person takes a life to save many more.
 On the whole, a bystander’s right against aggression sometimes yields to a utilitarian assessment in terms
of net saving of lives. Yet, this is not always so, for there are some killings fairly within the net-savings-of-
lives, lesser-evil doctrine that we can be sure courts would not permit – for example, killing a person to
obtain his organs, even when that step might be necessary to save the lives of several other people, or even
removing one of his organs for that purpose against his will without killing him.

Duress
Generally speaking, a person will be acquitted of any offense except murder if the criminal act was
committed under the following circumstances:

 Another person threatened to kill or grievously injure the actor or a third party, particularly a near
relative, unless she committed the offense.
 The actor reasonably believed that the threat was genuine.
 The threat was present, imminent, and impending at the time of the criminal act.

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  There was no reasonable escape from the threat except through compliance with the coercer.
 The actor was not at fault in exposing herself to the threat.
o Common law rule, which still applies in 17 states, is that duress is no defense to an intentional
killing.
 A few states recognize an imperfect duress defense, which reduces the offense of the
coerced actor to manslaughter.
 At common law, the threatened harm must be imminent for a defense of duress to apply.
o Some jurisdictions still abide by this.

State v. Toscano (Supreme Court of New Jersey, 1977):

 D admitted to aiding in the preparation of fraudulent insurance claims but tried to say that he was under
duress because he owed money to a man who threatened him and his wife.
 “Duress shall be a defense to a crime other than murder if the defendant engaged in conduct because
he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person
of another, which a person of reasonable firmness in his situation would have been unable to resist.”
 Here, it should be to a jury to decide whether a person of reasonable firmness would have failed to seek
police assistance or refused to cooperate, or whether such a person would be unable to resist, like D.

Justifications

 Utilitarian arguments for duress:

o Can’t deter a person from engaging in a criminal activity if they did it under threat of force.
o It is the coercing party that has a criminal disposition, not the actor, that has a criminal disposition
and is thus in need of incapacitation and rehabilitation.
 Retributive arguments for duress:
o Coerced actor not morally blameworthy and thus does not deserve to be punished.
o Coerced actor possesses free will, but she does not possess a fair opportunity to exercise her will
to act lawfully. Choices so unfair as to qualify as duress when it is not clear if a reasonable person
would have acted differently than the actor in the same situation.

MPC § 2.09
 § 2.09(1) duress is an affirmative defense to unlawful conduct by the defendant if:
o She was compelled to commit the offense by the use, or threatened use, of unlawful force by
the coercer upon her or another person.
o A person of reasonable firmness in her situation would have been unable to resist the
coercion.
 § 2.09(2): the defense is unavailable if the actor recklessly placed herself in a situation in which it was
probable that she would be subjected to coercion. If she negligently placed herself in such a situation,
however, the defense is available to her for all offenses except those for which negligence suffices to
establish culpability.
 Differences from common law:
o Defendant’s unlawful act no longer has to be a response to an imminent deadly threat. Defendant
may plead duress as a result of non-deadly and non-imminent threats – or even as the result of
prior use of non-deadly force – as long as a person of reasonable firmness would have committed
the offense in the defendant’s circumstances.
o Defense may be raised in murder prosecutions.
o Imperiled person does not need to be the defendant or a member of her family.
 Similarities:
o Restricted to unlawful force, so does not apply to coercion arising from natural sources.
o No defense if an interest other than bodily integrity is threatened.

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  Because the duress defense only applies to human threats, “situational duress” claims based on compelling
natural circumstances fall outside of the scope of the defense.
o Rationale: drafters concerned that if a person were excused as the result of a compelling natural
threat, no one would be subject to prosecution for unjustified conduct, whereas person threatening
the defendant can be held liable in cases of human duress.

Insanity
Overview
 The criminal trial of an incompetent defendant violates the Due Process Clause of the United States
Constitution. A person is incompetent if, during criminal proceedings, she:
o Lacks the capacity to consult with her attorney “with a reasonable degree of rational
understanding”; or
o Lacks a “rational as well as factual understanding of the proceedings” against her.
 The issue of competency to stand trial may be raised by the prosecutor, the defense, or by the trial judge on
her own motion, and is independent of any insanity plea that the defendant might later raise.
o If defendant is found to be incompetent, then the trial is suspended until they are competent. If the
condition is permanent, a trial may never be held.
o An incompetency ruling usually results in the commitment of the defendant to a mental health
facility.
 SCOTUS in Sell v. United States held that the Constitution sometimes permits forced medication to render
a defendant competent to stand trial, but suggested that those instances may be rare in light of the
constitutional right to refuse medical treatment in the absence of unusual circumstances. To uphold such
involuntary treatment, a court must find:
o The government’s interest in trying the defendant for the crime at issue is important.
o Forced medication is substantially likely to render the defendant competent and substantially
unlikely to have side effects that will interfere with her ability to assist defense counsel.
o Alternative, less intrusive treatments are unlikely to achieve substantially the same result.
o The treatment is medically appropriate (i.e. in the defendant’s best interest in light of her
condition).
 Many states require a defendant to notify the prosecution if she plans to raise the insanity defense. The trial
court then has authority to order a defendant to submit to a psychiatric examination if she plans to raise an
insanity defense.
 Three possible verdicts for a person who uses the insanity defense: not guilty, not guilty by reason of
insanity (NGRI), or guilty.
o NGRI verdict implies that the prosecution proved all of the elements of the crime, including the
defendant’s mens rea, beyond a reasonable doubt, and that all of the defendant’s non-insanity
defenses were rejected, but that the accused was insane at the time of the crime.
 Some states bifurcate trials involving the insanity defense. First phase proceeds like a normal prosecution.
If defendant found guilty, then proceeds to second phase to determine if the person was insane.
 SCOTUS in Ford v. Wainwright concluded that 8th Amendment prohibited the execution of the insane, but
offered no definition of insane nor did it say why.
o Most states now say that someone is insane, pertaining to execution, if they do not know the fact
of their impending execution and the reason for it.
o SCOTUS in Atkins v. Virginia held that can’t execute someone who is mentally retarded because
retardation undermines the defendant’s culpability for the crime charged.
 Regarding the burden of proof:

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 o Some states only require some evidence of legal insanity in order to eliminate the presumption of
sanity, whereas others require something more (e.g. that the evidence raise a reasonable doubt
about the persons sanity).
o Most states place the burden of proof on the defendant to prove the defense of insanity by clear
and convincing evidence. Others still required the prosecution to prove sanity beyond a reasonable
doubt.

Insanity Tests
 Product test – ask whether crime caused by a mental disease or a product of a mental disease.
o Mental disease is too broad of a term. It would seem to include conditions like depression.
o Also problem of determining if the mental disease actually caused the harm. At logical extreme: a
person could use the defense to say that his mental disease caused the harm of hitting someone
with a car while on the way to a store to get drugs for the disease.
 Whether the defendant could appreciate the nature and quality of his actions. E.g. squeezing neck
thinking that it is a lemon.
o Mens rea already takes care of this to some extent.
 Irresistible impulse/ lack of substantial capacity to understand actions. Basically, can’t control body.
o Actus reus already addresses this problem.
 Inability to tell right from wrong/ inability to appreciate criminal liability.
o Usually adjudged as moral right and wrong.
o Not legal right and wrong because already mistakes of law do not exonerate.

Why do we allow the defense?

 Utilitarian: can’t deter a person who doesn’t understand the consequences of their behavior, so no point to
punish. Can simply incapacitate them by committing them to a mental health facility.
 Retributive: punish people because they made a free choice to violate the law and are thus morally
blameworthy and deserving of punishment. Don’t punish the insane because they did not exercise a choice
of free-will deserving of punishment.
 Some argue that already have principles in place to prevent the conviction of the insane (e.g. mens rea and
actus reus). However, still have the insanity defense because has intuitive quality. Allow it as a defense sort
of how we don’t prosecute child for murder. May satisfy the elements against the principal per se, but still
don’t think that the kid (or insane person) is fully capable of controlling their behavior.

M’Naghten Test
 A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising
from a disease of the mind, that:
o She did not know the nature and quality of the act that she was doing; or
o If she did know it, she did not know that what she was doing was wrong, i.e., the accused at
the time of doing the act did not know the difference between right and wrong.
 Language in the case indicates that wrong may be interpreted as either moral or legal
wrong.
 Question is whether the defendant violated societal standards of morality. E.g. D is insane under the second
prong if she commits a behavior that she knows that society will condemn, even if she is convinced that it
is morally proper.
 Some jurisdictions also apply the deific decree doctrine. A mentally disordered individual who believes that
she is acting on the direct command of God (not simply with God’s approval) is deemed legally insane.
 Criticisms:
o Doesn’t recognize degrees of incapacity, a person must wholly lack cognition. But different
people in mental institutions do understand different degrees of right and wrong.

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 o Doesn’t recognize that a person may be able to tell right from wrong, but may still be unable to
control her behavior.

State v. Crenshaw (Washington Supreme Court, 1983):

 D thought his wife was cheating on him, so he killed her.

o Testified that he was muscovite and had a duty to kill adulterous wife.
 What is right and wrong under M’Naghten is defined based on social norms and only those that have
lost such control of reality as to be beyond the influence of the criminal law are allowed the insanity
defense.
o Narrow exception when a person knows an act is wrong but believes the act is ordained by God.
 Here, D knew that his actions were both legally and morally wrong. His personal belief that it was his duty
to kill his wife for her alleged infidelity cannot serve to exculpate him from legal responsibility for his acts.
 Also, he only believes that his religion compels him to kill his wife, thus not acting under deific command.

MPC § 4.01(1)
 MPC provides that a person is not responsible for her criminal conduct if, at the time of the conduct, as the
result of a mental disease or defect, she lacked substantial capacity to:
o Appreciate the criminality (or, in the alternative, at the option of the legislature adopting the Code,
the moral “wrongfulness”) of her conduct; or
o To conform her conduct to the requirements of the law.
 Similarish to second prong of M’Naghten test, but also recognizes that the insane could
comprehend right from wrong, but still be unable to conform their behavior.

Effect of Insanity Acquittal

 In many states, a person found NGRI is automatically committed to a mental facility on the basis of the
verdict.
 An insanity-acquittee may be detained as long as she is both mentally ill and dangerous to herself or others.
 An insanity-acquitte’s commitment is of an indeterminate length, i.e., until she meets criteria for release.
She could remain in a mental hospital for a longer period of time than she would have served in a prison
had she been convicted of the crime that triggered her commitment.

Abolition of the Defense

 Some states have abolished the defense, but allow a defendant’s mental disease or defect to be introduced
as evidence to negate the requisite mens rea.
 Some states have instituted an alternative verdict – guilty but mentally ill. Keep insanity defense and add
this choice of verdict for the jury.
o In these states, the jury returns a NGRI verdict if the defendant was insane at the time of the crime;
it returns a GBMI verdict if she is guilty of the offense, was sane at the time of the crime, but is
“mentally ill” at the time of trial.
 Under GBMI verdict, convicted party receives the sentence that would have otherwise
been imposed if she were found guilty; after sentencing, however, she may receive
psychiatric care in the prison setting or in a mental health institution. Must serve her
entire prison sentence.
 Katz thinks that insanity defense should just ask the jury to decide whether the person has sufficient
competency to act as we expect adults to act.

A Couple of Defenses Analyzed Through Torture

Caught a terrorist, but ticking time bomb going off in an hour and it will kill a lot of people. Can you torture for
information?

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 Self-defense: threatened with unlawful force and immediately necessary.
o However, similar to the person who was mortally wounded and then took the organs of the man
who inflicted his harm. Seems to stretch self-defense because of the long time frame. Not the
imminent threat that used to be required at common law.
 Necessity: torturing a lesser evil than killing a bunch of people, so it is justified. Why the outcry then?
o Hesitant to allow torture as punishment, so also hesitant to allow it to extract information.
o Does not necessarily guarantee reliable information.
o Cost/benefit analysis not as clear as it seems at first blush. Could immediately save lives but have
an overall damaging effect on society by deemphasizing the individual right to be protected
against aggression if that aggression would in some way benefit the greater good .
 Analogy to the man who has a friend charged with murder. He will be sentenced to death
if convicted, and all the evidence seems to indicate that this is the likely outcome. You
are a very good friend and convinced that he didn’t do it. You lie for him and he is
acquitted. Later evidence shows that he was not guilty, but you are charged with perjury.
Can you argue necessity (harm of allowing an innocent man to go to prison worse than
perjury)?
 No, social harm from lying more damaging to the legal system. If allowed the
necessity defense then could expand it to say that a person is justified in lying in
court if they reasonably thought it would lead to a more just verdict.
 Would allow people to lie because they have a defense if they are right, but
would also cause the jury to question their testimony even more. Overall,
undermines evidence and will lead to more mistaken acquittals and convictions.

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