Outline For Criminal Law

O UTLINE FOR C RIMINAL L AW
I. JUSTIFICATIONS FOR PUNISHMENT

A. Utilitarian View – First promulgated by Jeremy Bentham, it considers
humans to be “risk calculators” that try at all times to maximize their
happiness. In the context of criminal law, this is reflected in the deterrent
justification for punishment: if the benefit to be gained by committing a
crime is outweighed by the possible punishment, the actor will be deterred. In
addition to the two views of deterrence, the utilitarian view embraces the idea
of rehabilitation.
1. General Deterrence: A criminal is punished to convince the community
at large to forego criminal activity in the future. It is the idea of an “object
lesson,” or an overall fear of punishment.
2. Specific Deterrence: An alternative view, it holds that punishment is
designed to deter the individual criminals from future illegal conduct.
There are two methods of specific deterrence:
a. Incapacitation: Keeping the criminal off the street keeps him
from committing crimes.
b. Intimidation: upon release, the criminal is deterred by the fear of
future imprisonment.
3. Criticisms of Deterrence: Critics hold that because of the improbability
of apprehension (14:1 odds), the even more unlikely chance of
incarceration (3%), the delay in punishment caused by clogged courts,
and the ignorance of criminals as to the punishments, deterrence does not
actually work.
4. Rehabilitation: A non-classical view of utilitarianism, it reached its peak
in the ‘60’s. In this view, incarceration is best used to reform or “fix” the
wrongdoer, not scare him. It has fallen out of favor in recent times, but in
the area of juvenile crime, a resurgence has come in the form of “boot
camp” style prisons. Critics hold that rehab removes the idea that wrongs
deserve to be punished, and place the blame of society instead of the
person.
B. Retributivism: The idea is that crimes deserve punishment, b/c the
wrongdoer has freely decided to violate societal rules. It has its basis in the
idea of moral blameworthiness, and holds that conscious wrongs deserve
punishment regardless of any deterrent effect, since humans possess free will,
punishment is justified when it is deserved.
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II. ACTUS REUS – THE REQUREMENT OF AN ACT
1. Generally: There are two requirements of a criminal offense: an actus
reus (bad act) and a mens rea (guilty mind). Punishment is not proper if
both these elements are not present. The act must be voluntary and the
criminal usually must have notice that it is bad (the idea of “legality”).
The absence of an act leaves only thoughts and people can not be
punished for their thoughts alone, b/c thoughts are a private sanctuary, are
poor predictors of actual conduct, it is impossible to find out if someone
actually has evil thoughts, and without an act there is no harm.
2. Act requirement: Proctor v. State - ∆ was punished for “keeping a
place with intent to sell liquor.” Conviction overturned. Rule: to
constitute a crime there must be both intent to commit a bad act and
some commission or omission of the bad act, intent alone is not
sufficient.
3. THE REQUIREMENT OF VOLUNTARINESS: to be blameworthy,
the act must be the result of a conscious decision. Acts can be
involuntary for several reasons:
a. Unavoidable Acts:
I. People v. Newton - ∆ was convicted under NY gun possession
laws when he got on flight in the Bahamas to Luxembourg, but
the pilot diverted to NYC when it was found that he had a gun.
Upon landing, he was arrested for possession of a handgun. The
App. Div. overturned the conviction b/c ∆ did not voluntarily
come to NY, he was going to Luxembourg.
II. Martin v. State – convicted of public intox when the cops took
him from his house outside to the road where he became
boisterous. The conviction was overturned the court said that he
was not voluntarily on the road (in public) b/c the cops took him
there.
b. Unconscious Acts:
I. People v. Grant - ∆ convicted of battery and obstructing a P.O.
when he attacked a cop. ∆ had psychomotor epilepsy and argued
that his acts were the result of automatism and thus not
voluntary. The court remanded to determine if he had recklessly
caused the autonomic seizure. Rule: Ordinarily, an autonomic
seizure that results in a criminal act is not considered
voluntary for purposes of a crime, however, it the ∆ knew of
his susceptibility to such seizures and recklessly placed
himself in a situation that would make one occur, he will be
criminally liable (the act is the conscious behavior that
caused the seizure to be likely). (c.f. MPC § 2.01(1) not all
acts in the sequence need be voluntary).
II. People v. Decina – epileptic had seizure while driving a car and
was convicted b/c he knew that he was at risk and drove anyway.
iii. The King v. Cogdon – sleepwalking mother kills daughter, court
held that the killing done in a somnambulistic state was not
voluntary.
Model Penal Code: § 2.01(2) defines several types of “acts” that are not
considered voluntary:
(a) a reflex or convulsion,
(b) a bodily movement during unconsciousness or sleep,
(c) conduct during hypnosis or resulting from hypnotic suggestion,
(d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
Bu t remember, not all acts need voluntary. §2.01(1)
4. THE PROHIBITION AGAINST STATUS CRIMES: the 8th
Amendment (“cruel and unusual punishment”) has been interpreted to
prohibit punishment for merely having a particular status b/c status is not
usually voluntary– punishment is Constitutional only were it is done for
conduct.
a. Narcotics Addiction – Robinson v. California: U.S. S.Ct.
invalidated a law criminalizing addiction to drugs, saying that
addiction is an involuntary illness so there was no voluntary act. The
conduct punished must be past conduct, not future conduct. Rule: it is
unconstitutional to punish someone for their status.
b. Public Intoxication and Alcoholism- Powell v. Texas (U.S.
S.Ct.): ∆ was found drunk in public and convicted. The Court held
that he was not being punished for the involuntary status of being an
alcoholic, but for the voluntary act of going into public while drunk.
This limits the involuntary argument of Robinson, b/c the court
held that the prohibition on status crimes arose only where there
was no act at all.
c. Pregnancy – Johnson v. State: ∆ convicted under delivery of a
controlled substance law when her baby was born addicted to crack. S.
Ct. of Fla. quashed conviction saying that it was not the intent of the
legislature to punish mothers under this law. This case might be a
status case – pregnant addicted mothers can not help but to “deliver
drugs” through the umbilical cord.
d. Homelessness – two conflicting cases addressing similar laws:
i. Pottinger v. Miami – Ct. held that a law punishing a homeless
person for eating or sleeping in public was actually punishing them
for the involuntary status of homeless b/c eating and sleeping were

necessary consequences of having such a status. (contra Powell –
acts vs. status).
ii. Joyce v. City of San Francisco – essentially same law at issue, but
Ct. denied injunction against enforcement following the logic of
Powell, it held that while homelessness may or may not be status but
the law punished only the acts of eating, sleeping, etc.
5. OMISSIONS AS ACTS: Ordinarily, not doing something is not criminal

even if it means that a harm results. This is because in general people do
not owe any duty to one another absent special circumstances. Note that
there is a distinction between a moral duty and a legal duty, and some
would argue that a moral duty should be sufficient to punish. The
circumstances that give rise to a duty to act so that failure to do so may
result in criminal liability, occur in four contexts:
a. A statute imposes a duty to care for another – drivers must stop at
scene of accident, etc.
b. A special relationship exists between the parties ( a C/L duty) –
parent child, husband wife, etc.
c. A contractual duty exists – babysitter (implied K), doctors to
patients, etc. (see Jones v. U.S.).
d. Omissions flowing from an act:
i. Creation of a Risk – where a person purposefully or even
innocently caused injury or creates a risk that results in injury, has
a C/L duty to aid the injured party and failure to do so may result
in criminal liability.
ii. Voluntary Assistance – One who voluntarily begins to render aid
to someone in peril, has a duty to continue the aid. At least if
subsequent omission of the aid would put the injured person in a
worse position, such as secluding the victim from others who could
render aid. This may arise even if the assisting person had nothing
to do with the injury.
6. POSSESSION AS AN ACT: Possession of proscribed materials may
constitute a crime in itself – usually it must be proven only that the ∆
knew of the existence of and had control of the contraband for a long
enough period to be able to terminate the possession. (see MPC §
2.01(4)). Possession is in inchoate crime (an incomplete crime), there are
two kinds:
a. Actual Possession: actual dominion or control over the item.
(State v. Palmer (burglary tools)).
b. Constructive Possession: Control over the premises where the
item is located, the ability to exercise control, and the intent to do so.
(Earle v. U.S. (∆ found asleep next to a room full of crack); People v.
Valot (rented motel room where drugs were found – guilty even
though not present)).
7. THE LEGALITY PRINCIPLE: States that some conduct may be
immoral, harmful or both and some conduct may be criminal. However,
just because some conduct is “wrong” in the moral sense, doesn’t make it
criminal. In the American legal system, there is “no crime without a law,
and no punishment without a law.” Punishment is only justified for
past, bad, conduct, specified, in advance, in a statute. The criminal
conduct must be defined so as to give notice of its illegality – it is a
requirement of Due Process and also implicates the Ex Post Facto Clause
b/c the crime is essentially defined after the offense. The legality
principle is implicated in two contexts – common law crimes, and vague
statutes (lack of specificity). But note, the inclusion of a “scienter”
requirement can save an otherwise vague law.
a. Common Law Crimes: very few states recognize or allow C/L
crimes, b/c of the legality principle (PA is a notable exception). C/L
crimes allow prosecution of conduct that the state feels is bad, and
for which there is some precedential basis for, but is not
proscribed in a statute.
i. Commonwealth v. Keller (PA); ∆ convicted of the C/L crime of
“indecent disposal of a dead body” and the conviction was upheld.
C/L Crimes Rule: the C/L may be used to punish as a
misdemeanor any act that directly injures or tends to injure
the public to such an extent as to require state interference.
The proper disposal of a dead body was held to be fundamental
duty in civilized society.
ii. Keeler v. Superior Court – California rejected C/L crimes as
violating D/P requirement of notice. Keeler was convicted of
murder of his wife’s unborn child when he kicked her in the belly.
The prosecution went on the theory that the fetus was a “human
being” under the murder statute. The S. Ct. of CA overturned the
conviction. Rule: Subject to the 8th Amendment limitations (on
status crimes) the power to define crimes rests solely with the
legislature, courts can not create new crimes by enlarging a
statute by inserting terms or giving terms a false or unusual
meaning. A fetus was not defined as a human being by the
legislature or the U.S. S. Ct. so killing it was not murder.
b. Void for Vagueness Doctrine
i. Ricks v. D.C.: ∆ convicted under vagrancy law that made it illegal
for one who led a “immoral and profligate life” to “wander the
streets at night.” The D.C Cir. held the law void for vagueness b/c
it failed to give notice of what vagrancy was. Rule: Criminal
statutes are unconstitutionally vague unless the statutory
language conveys sufficiently definite warnings as to the
proscribed conduct when measured by common understanding
and practices.
ii. People v. Van Alstyne: ∆ convicted of pot selling and attacked
law on the ground that it specified only one kind of pot. The court
upheld the conviction saying that common understanding and the
intent of the legislature made it clear that all forms of pot were
prohibited.
iii. The Rule of Lenity – States that when a criminal statute is subject
to conflicting reasonable interpretations, but is not sufficiently
vague so as to be void, it is to be construed narrowly against the
government. This can result in a frustration of legislative intent and
many states have abandoned it. The MPC does not recognize the
principle, saying that statutes should be interpreted according to
their fair import” and in a manner that furthers the “general
purposes of the code” and the particular provision. (see MPC §
1.02(3)).
III. MENS REA – THE REQUIREMENT OF A GUILTY MIND

A. Generally: a guilty mind is required for the same reason a voluntary act is
– it is necessary to justify punishment for moral blameworthiness. Bad
thoughts come in two varieties: the desire to harm others or violate some
social duty or the disregard for the welfare of others or some social duty. In
some instances a crime may be a strict liability crime, however, and is
punished whether or not the ∆ had any mens rea.
B. Strict Liability: Liability w/o fault. At early C/L many crimes were strict
liability, but the modern trend is to require a mens rea element. The MPC
says that only “violations” are punishable as strict liability offenses (fines,
forfeiture, etc.), but some are still recognized.
1. U.S. v. Balint (1922) - ∆ convicted of selling smack and coke w/o
registering which was a strict liability crime (no mens rea required).
They claimed that they did not know the drugs were on the controlled
list, but the court held that there was a public danger posed by drugs so
in furtherance of the public betterment, strict liability was appropriate.
2. U.S. v. Dotterweich (1943) - ∆ president of drug company was
convicted of supplying repackaged drugs in violation of FD&C act. ∆
claimed he had no knowledge of the acts. The Court held that strict
liability was appropriate b/c of the dangers of adulterated goods and
“[i]n 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.”
3. U.S. v. Park (1975)- president of a food co. was found criminally
liable for allowing spoiled food to be shipped interstate commerce. The

Court held that the public interest in the purity of food supported strict
liability and that the law imposed an affirmative duty to prevent
violations. However, they also noted that a ∆ could avoid liability if he
could prove that he was “powerless” to avoid the violation (people are
not required to do the impossible).
4. Morissette v. U.S. - ∆ convicted of knowingly converting govt.
property when he sold expended artillery shells found on a military
base.. Rule: If the crime is a codification of C/L crime, intent is an
inherent element and will be required even if not expressly stated in
the statute. But, if it is a new offense (regulatory or public welfare)
intent will not be inferred and is only required if expressly stated in
the statute.
5. X-citement Video – Court overturned a conviction for trafficking
in child porn b/c it held that the knowledge requirement attached to the
age of the depicted people and the ∆ ’s proved that they believed that
they were not minors.
Alexander’s Framework for Determining When Strict Liability is

Appropriate:
Courts will consider:
1. The severity of the punishment (greater penalty less likely to be S/L)
2. Is there an expectation of stringent public regulation? ( is it a
malum in prohibitum or malum in se crime)
3. Concerns about public safety (strong health and public safety
concerns about the conduct at issue).
A. CATEGORIES OF CULPABILITY
1. The Common Law Levels of Culpability:
a. “Intentionally” – one intentionally causes harm if it his
desire to cause the act or he acts with the knowledge that the harm is
virtually certain to occur. (N.B. intent ≠ motive).
i. Specific Intent – a limited class of crimes are “specific intent
crimes.” These require not only the doing of an act, but also
the doing of it with a specific objective. These are also referred
to as “compound crimes.” The existence of the specific intent
can not be inferred from the doing of the act like it can in general
N.B. the MPC and many intent crimes. Examples of specific intent crimes: solicitation
modern jurisdictions no (intent to have the person solicited commit the crime); attempt
longer recognize specific and
general intent.
(intent to commit the crime); conspiracy (intent to have the crime
completed); first degree murder (premeditation); assault (intent
to commit a battery); larceny and robbery (intent to permanently
deprive....); burglary (intent to commit a felony in the building).
ii. General Intent – Almost all crimes require general intent, which
is an awareness of all factors constituting the crime, i.e. the actor
is aware that he is acting in the proscribed manner (not
necessarily that it is illegal, however). The defendant need not be
certain of all circumstances, only that there is a high probability
that they exist. General intent may be inferred from the doing of
the act.
Note: Another view of specific and general intent – holds that
general intent is the purposeful or knowing doing of some act,
that would naturally and probably cause a socially harmful result.
Specific intent requires further purpose to achieve the result or
knowledge that it would result
iii. Transferred Intent – A defendant can be liable under this

doctrine if where he intends to do the harm that is actually
caused, but to a different person than is harmed. Defenses and
mitigating circumstances usually also transfer. This does not
apply to attempt.
iv. Motive vs. Intent – Motive is the reason or explanation for the
crime, it is not the intent. In general, motive is immaterial to
substantive criminal law.
b. “Knowingly” or “With Knowledge” – a person acts
knowingly if he is aware of the fact or correctly believes it exists.
Some jurisdictions hold a person knowing if he is aware of a high
probability that the fact exists and deliberately fails to investigate to
determine if it in fact does or not. (c.f. MPC § 2.02(7)).
c.“Willfully” – has many meanings. It is often used as a synonym
for intentionally. Some other definitions include done with a bad
purpose, evil motive, intentional violation of a known legal duty or
purpose to disobey the law.
d. “Recklessness” – at early C/L it was a synonym for
criminal negligence, but today even in C/L jurisdictions it is usually
a higher standard. It occurs when the actor consciously disregards a
substantial and unjustifiable risk of harm.
e.“Criminal Negligence” – higher standard than ordinary (tort)
negligence, it occurs when the actor’s conduct constitutes a gross
deviation from the standard of reasonable care. He should have
known of a substantial and unjustifiable risk...N.B. some C/L
jurisdictions only require ordinary negligence and some do not
recognize liability for negligence at all.
f. Malice – intentionally or recklessly causes a social harm, note it is
not as restrictive as specific intent.
g. Regina v. Faulkner: ∆ was stealing rum in his ship and
accidentally started a fire and destroyed the ship and cargo. Judge
Fitzgerald refused to transfer the intent from the theft to the arson.
According To Fitzgerald, the ∆ could only be guilty if he intended
to do the very act, or the fire was a natural and probable consequence
of the theft (it wasn’t), or he knew that the fire was probable.
2. MPC § 2.02(2) Kinds of Culpability Defined: “[Except for

violations punishable under § 2.05 and 1.04(5)] a person is not guilty of
an offense unless he acted purposely, knowingly, recklessly, or
negligently, as the law may require, with respect to every material
element of the offense. (Chart adapted from ROBINSON AND GRALL):
A person acts [insert culpability level] with respect to [type of objective
element] when:
OBJECTIVE ELEMENTS
C/L ANALOGY CULPABILITY LEVEL CIRCUMSTANCE RESULT CONDUCT
He is aware of such It is his conscious In is his conscious
circumstances or hopes objective ... to cause object to engage in
“specific intent” Purposely they exist such a result conduct of that nature
(subjective)
He is aware that such He is aware that it is He is aware that his
circumstances exist practically certain that conduct is of that nature
“specific intent” Knowingly his conduct will cause
(subjective)
such a result
He consciously He consciously
Recklessly disregards a substantial disregards a substantial
“general and unjustified risk that and unjustifiable risk
intent”; (Default mens rea
the material element that the material
“malice” under MPC
exists element will result from
§2.02(3))
his conduct
(subjective)
He should be aware of a He should be aware of a
substantial and substantial and
“general unjustifiable risk that unjustifiable risk that
intent”; Negligently the material element the material element
“negligence” exists will result from his
conduct
(subjective)

3. Higher Degree of Fault: MPC § 2.02(5) and 2.02(8) state that a
higher mens rea automatically satisfies a lower requirement. Thus if
recklessness is required but the defendant acted purposely or knowingly,
he will be liable.
4. Willful Blindness – U.S. v. Jewel (the “Ostrich Syndrome”):
U.S. S. Ct. held that ∆ ’s willful avoidance of knowing that there was
pot in his car was the same as knowledge for purposes of mens rea
element. (C.f. MPC § 2.02(7): when knowledge of the existence of a
particular fact is an element of an offense, a person has knowledge if
he is aware of a high probability that the fact exists, unless he actually
believes it does not).
5. MPC § 2.02(4) Prescribed Culpability Requirement Applies to
all material Elements: If each element is not distinguished by separate
culpability requirements, the culpability defined as sufficient for the
commission of the offence will apply to all, unless a contrary intent
appears.
In other words, where there is only one mens rea term in a provision, it
presumptively applies to all of the elements unless it appears from the
grammatical structure that it does not. If it appears that it does not attach,
and no mens rea is defined, the MPC default is recklessness. Generally,
mens rea terms carry forward only, unless the grammatical construction
appears otherwise.
This is called the Grammar Rule for staturory construction.
Example:
It shall be a crime to purposely draw upon, or otherwise mark, state property,
without prior authorization, with any indelible substance, knowing or recklessly
believing it to be so....
D. MISTAKE AS A DEFENSE NEGATING AN ELEMENT OF THE

CRIME:
1. Mistake of Fact: Under MPC and in most C/L jurisdictions a
mistake of fact will be a valid defense only if it negates a mens rea
requirement of any element of the offense. C.f. MPC § 2.04(1). The
simplest example is taking someone else’s umbrella, believing it is
yours, negates the intent to steal.
a. State v. Guest: ∆ convicted of statutory rape, but claimed that he
honestly but mistakenly believed she was 18 (yeah, right). Alaska
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held that statutory rape did not have age as strict liability element as
most jurisdictions do, and the court held that the age of the girl had
the mens rea of knowledge, so that an honest and reasonable mistake
as to the age of the girl negatives the mens rea.
b.People v. Ryan: ∆ convicted of “knowingly and unlawfully
possessing 625 mg of a hallucinogen. ∆ has “shit load” of ‘shrooms,
and they proved to have far more of the active hallucinogen than
required. ∆ claimed that he did not know how much of the actual
illegal substance was in the ‘shrooms, so therefore he lacked the
knowledge required. The Court agreed holding that as knowledge
was the only mens rea element set out in the statute, it applied to
every material element and therefore knowledge of the weight was
required. The court noted that as every drug offence had the same
language it could not infer a strict liability requirement to the weight.
2. Mistake of Law: “Ignorance of the law is no excuse.” At

common law and under the MPC this is true b/c a mistake of law does
not ordinarily negative the mens rea (as a mistake of fact may). The
MPC tracks the common law pretty closely in this area. (See Baker, ∆
claimed she did not know selling fake Rolexes was illegal but didn’t
matter b/c he knew he was selling them and he knew they were fake)
There are three main exceptions to the rule:
a. Reasonable Reliance Doctrine (“Entrapment by estoppel”)– a
person is excused for committing a crime if, at the time of the
offence, he reasonably relied on an official statement of the law,
which was later determined to be erroneous, obtained from a person
or public body with the responsibility of the interpretation,
administration, or enforcement of the law in question. (E.g., judges,
AG’s, police officers; not private attorneys, clergy). C.f. MPC
§2.04(3)(b) (requires that the official statement be contained in a
statute, judicial decision, administrative order, or other official
interpretation). Personal interpretations, even reasonable are not
exculpatory, even when a peace officer makes them (see Marrero).
i. Commonweath v. Twichell: The Christian Scientists who let
their kid die. The Court remanded for NT b/c the ∆ ’s had relied
on an AG report that the believed meant that the child neglect
law did not apply to their religion (they were wrong but
reasonable in their belief).
ii. People v. Marrero: ∆ was a federal corrections officer who was
convicted for carrying an unlicensed weapon. The statute in
question exempted peace officers including “correctional officers
of ... any penal correctional facility” but the statute was
construed at appeal the App. Div. held that federal officers were
not included. The Ct. App. aff’d saying that a misreading of the

law was not a defense, b/c it was not a reasonable reliance on
an official statement. The dissent argued that the majority
ignored the Lenity Rule and that a good faith mistake based on
the plain meaning of statue should be a defense.
b.Fair Notice – At early C/L everyone was presumed to know the
law, but in Lambert v. California the S. Ct held that if a law is not
malum in se and punishes passive conduct (a duty to act based on
status), and there is nothing to alert a person that an unusual law
might pertain to him, he may assert a valid D/P defense. In Lambert,
the ∆ was a convicted felon who moved to LA and was late
convicted of failing to register himself.
i. MPC § 2.04(3)(a): a ∆ who believes that his conduct is not
illegal states a defense when he shows that the law governing the
offense is not known to him and has not been published or
otherwise made reasonably available prior to the conduct
charged.
c. Mistake of Law Negatives a Mens Rea Element –this is very
rare and generally occurs only when the legality of the conduct is
an element of the offence. Watch out for “willfully” language b/c
one definition is “a violation of a known legal duty.” (See Cheek).
C.f. MPC § 2.04(1) “Ignorance or mistake as to a matter of fact
or law is a defense if: (a) the ignorance or mistake negatives the
mens rea of the material elements of the offense; or (b) the law
provides that knowledge of the law is a defense”
i. Liparota: the food stamps case. “knowingly .... unauthorized
manner” held to be mens rea for legality of conduct – he had to
know it was unauthorized to sell them at less than face value.
ii. Cheek v. U.S.: the S.Ct held that knowledge of illegality was
implied in the tax laws b/c it required “willful” violation
(defined as violation of known legal duty) but it upheld the
conviction b/c a good faith belief in the unconstitutionality
of a law is not the same as an absence of knowledge of its
prohibitions. This appears to be a narrow holding limited to
tax laws b/c of their complexity and the language of the statute.
iii. U.S. v. Moncini: ∆ convicted of mailing child porn to the US
from Italy. He claimed that b/c he did not know it was illegal in
US (it wasn’t in Italy) he could not have the mens rea. The
court held that knowledge only attached to mailing and
depictions and that the illegality was not an element (contra
Cheek). Further, the court noted that everyone knew that child
porn was heavily regulated so he should have been on notice.
Rule: Where the ∆ had the requisite mens rea for the
commission of the offense and only claims that he was

unaware of its illegality, the mistake of law defense is
seldom recognized.
E. INTOXICATION AS A DEFENSE NEGATING AN ELEMENT OF

THE CRIME:
1. Common Law – Voluntary Intoxication (by far the most common) is a
defense only to specific intent crimes, that is if at the time of the offense
he was incapable of forming, or did not in fact form the specific intent to
commit the offense. Note, to be incapable of forming a specific intent,
one has to be extremely drunk. Voluntary intoxication is not a defense at
all to general intent crimes at C/L. Also note that a modern trend is to
eliminate the defense all together.
a. Involuntary Intoxication – where one becomes intoxicated by
coercion or mistake (or maybe a mickey finn). At C/L it is a defense
to both specific intent and general intent crimes. However, as one
court noted it is virtually non-existent.
b. “Unconsciousness:” Note that a claim that a defendant was so
drunk that he was unconscious and therefore his acts were not
voluntary will fail b/c he engaged in voluntary conduct in getting
drunk.
2. MPC § 2.08. Intoxication: the Code only recognizes voluntary
intoxication as a defense where it would negative an element of the crime,
and as to crimes requiring recklessness, if b/c of voluntary intoxication
the defendant is unaware of a risk that he would have been had he not
been drunk, his unawareness is immaterial (b/c he got drunk and made
himself unaware). The Code also allows an affirmative defense for
involuntary intoxication and “pathological” intoxication (where the actor
is unusually predisposed to intoxication and is unaware that he is, and the
intoxication is grossly excessive in degree to the amount ingested)
a. State v. Cameron – Cameron was convicted of agg assault;
possession of a weapon; fourth degree resisting arrest. She argued that
she should have been allowed to present an intoxication defense. NJ
S.Ct. disagreed b/c she wasn’t drunk enough, she was able to speak
and answer questions.
i. Rule: Intoxication is a defense only to crimes requiring either
purpose or knowledge and not to those requiring only
recklessness or negligence. (B/c if the defense is an inability to
form an intent, it cannot negate recklessness or negligence b/c no
intent is required. C.f. the common law distinction between
specific intent and general intent).

ii. Rule: The MPC definition of intoxication contemplates a
condition by which the mental or physical capacities of the
actor ... are so prostrated as to render him incapable of
knowing or purposeful conduct. (This means really, really
drunk and it is rare that a court will find a person to be
sufficiently intoxicated). The defendant has the burden of
producing evidence that he was sufficiently drunk.
iii. Rule: Where a crime has different grades of an offense,
including one that imposes liability for recklessness, an
intoxication defense to a degree requiring purpose or
knowledge will only reduce the degree of the crime to that
requiring recklessness.
Note: If the statute specifies both knowledge and a lower mens rea
such as negligence or recklessness, for conviction of the same crime,
a defendant is not entitled to the defense of intoxication b/c he
could be convicted under the lower standard. (From Hypo).
b. Montana v. Egelhoff – The case of the drunken mushroom pickers.
One of the group of three drove his truck into a ditch and shot the
other two in the head. His BAL was .36 when arrested. He was
convicted of deliberate homicide (req. purpose or knowledge).
Montana does not have an intoxication defense and the ∆ appealed
claiming a denial of the defense violated D/P. The US Supremes
disagreed.
Rule: There is no fundamental right under the D/P clause to allow
the admission of evidence of intoxication in order to refute a mens
rea element of a crime. (Thus states are free to abolish the defense
altogether). J. O’Connor argued in dissent that the abolition of the
defense was an unconstitutional reduction in the prosecution’s burden.
NOTE: PRESUMPTIONS IN JURY INSTRUCTIONS – FRANCIS V. FRANKLIN

The issue is to what extent may a jury be allowed to infer mens rea from the fact proven. The tension is
between the constitutional requirement that the prosecution prove every element of an offence, and the difficulty
of proving a mental state. In Francis, (the escapee shot the homeowner through the door when it slammed in his
face) the court defined what is permissible and what violates D/P:
1. Mandatory, Irrebutable Presumption – “if you find that Franklin pointed the pistol at the door and it
fired, YOU SHALL PRESUME he intended the natural and probable consequences.... This is
unconstitutional b/c it eliminates the need to prove mens rea.
2. Mandatory, Rebuttable Presumption – “ If you find that ∆ pointed the gun at the door and it fired, IT IS
PRESUMED that he intended the natural and probable consequences, UNLESS THE PRESUMPTION IS
REBUTTED BY THE ∆ . Unconstitutional b/c it shifts the burden to the ∆ of disproving mens rea.
3. Permissive Inference – “If you find.... YOU MAY PRESUME that he intended the natural and probable
consequences of this act. Any presumption may be disproved by the ∆ . This is O.K. b/c it leaves the
burden on the prosecution.

IV. INTENTIONAL HOMICIDE
A. COMMON LAW MURDER: Most common law jurisdiction had
degrees of murder (contra MPC where murder is a unitary crime). At C/L
there are four categories of murder, which was defined as “the killing of
another human being with malice aforethought.”
MPC §
TYPE OF MALICE CATEGORY DESCRIPTION
ANALOGY
Intent to Kill Murder (1° When the killer intended to cause death 210.2(1)(a)
“Express malice”
murder)
Intent to Cause Serious Bodily When the killer intended to cause serious bodily harm and N/A
Harm Murder (2° murder) death resulted
When the killer acted with extreme recklessness by 210.2(1)(b)
Depraved Heart Murder (2° consciously disregarding a substantial risk where the
“Implied malice”
murder) Unintentional quality of that risk is immoral or unworthy (“acted with an
abandoned an malignant heart”)
Felony Murder (usually 1° When the killing occurred during the commission of certain 210.2(1)(b)
murder) Unintentional enumerated felonies (BARRK).
B. Model Penal Code Murder: MPC § 210.2- Under the Code, murder is a
unitary crime, there are no degrees of murder, and all murders are first degree
felonies. The C/L requirement of ‘malice aforethought’ is eliminated, with
the result that one form of implied malice, intent to cause serious bodily harm
murder is eliminated b/c it will fall under either the “extreme recklessness”
category of murder, or a lesser crime such as manslaughter.
§ 210.2
(1) Except as provided in section 210.3(10)(b) [voluntary M/S extreme
emotional disturbance], criminal homicide constitutes murder when:
(a) it is committee purposely or knowingly; or
(b) it is committee recklessly under circumstances manifesting extreme
indifference to human life. Such recklessness and indifference are
presumed if the actor is engaged or is an accomplice in the
commission of, attempt ..., or flight [from a commission or attempt of]
arson, burglary, robbery, rape, kidnapping, or felonious escape.
B. INTENT TO KILL MURDER- PREMEDITATED MURDER: At C/L in

states that grade murder this is usually first degree murder. It is also referred
to as “the deliberate killing of another” where “deliberate” is meant “to
deliberate” or to calculate and plan, i.e., to premeditate. A defendant
premeditates when, before acting, he gives thought to the idea of killing and
reaches a definite decision to kill – he turns it over in his mind, “reflects” or
“gives it a second thought” and goes ahead any way).
1. Proof of Premeditation: The prosecution must show that the defendant
had:
a. An opportunity to premeditate (time to premeditate), and
b. Evidence that he in fact premeditated.
C. The Opportunity to Premeditate – U.S. v. Watson: ∆ was convicted of

premeditated murder when he ran from police and when confronted in a house
by a PO, struggled with him and subdued the officer. ∆ then took the
officer’s gun and after the officer told him it wasn’t worth it, shot the officer.
Rule: For there to be a finding of premeditation, some appreciable time
must pass between the formation of the design to kill and the actual
execution of that design. However, the time need not be long, thus the
prosecution need not show a lapse of days, hours or even minutes ... it
may be a brief as a few seconds. (the dispositive factor is whether it was
sufficient to ‘turn it over in his mind”).
D. Evidence of Premeditation: The Court in Watson also outlined some
evidence that would support the charge of premeditation:
1. Direct evidence of planning (maps, victim’s schedule, etc.).
2. Evidence of prior threats to the victim
a. Verbal or written threats
b. Stalking or other threatening behavior
3. Evidence of a motive suggesting a purposeful or reasoned killing
Note: Motive is not an a. Revenge (Hypo – Jones)
element of the crime and in
pure terms is irrelevant to the b. Disputes over money;
substantive law, but it is
c. Insurance or other gain resulting, etc...
critical in terms of proving
premeditation. 4. The circumstances of the killing
a. Interruption and continuation of the killing (what got Watson)
b. An intricate method of killing (ritualistic killing)
5. Bringing the murder weapon to the scene of the killing.
6. Lack of provocation by the victim. (Hypo – Richardson).
C. VOLUNTARY MANSLAUGHTER: At C/L also called “heat of

passion murder,” or “an intentional killing during a heat of
passion.” Under the Code it is included in §210.3(b) “extreme
emotional disturbance.” A finding of “heat of passion” will mitigate

intentional murder to voluntary manslaughter. Note that the Code also
includes reckless murder (not reckless indifference or depraved heart) in
the M/S section (it is also a unitary crime, no distinction between
voluntary and involuntary). The most common application is “heat of
passion.”
1. “Heat of Passion” or “Extreme Emotional Disturbance” has two
elements:
a. Adequate provocation
i. Objectively adequate – would a reasonable person be
provoked. (but contra MPC)
ii. Subjective adequacy – the actor was actually provoked.
b. Insufficient time to cool – there is no interval between the
provocation and the killing that would allow the person to cool.
i. Objectively insufficient – a reasonable person would not
have cooled,
ii. Subjectively insufficient – the actor did not in fact cool.
People v. Walker - ∆ convicted of murder when the victim started a

fight after taunting ∆ and friends. ∆ knocked him out and then slit
attackers throat with his own knife. The entire altercation lasted 6 – 15
minutes. The Appellate Ct. remanded for NT on charge of vol. M/S
because they found it was a continuous affray, the mutual combat did
not stop, so no premeditation despite the fact that the victim was
unconscious, defendant was still agitated.
2. Traditional Common Law Categories of Adequate

Provocation: the traditional C/L was very rigid in what could
constitute provocation sufficient to mitigate an intentional killing
to voluntary M/S:
a. Physical assault,
b. Sudden combat (sudden melee),
c. Witnessing the actual adultery of one’s spouse (at early
C/L this would completely exculpate in some jurisdictions),
d. Unlawful arrest,
e. Sexual assault on a close relative,
f. Words alone were not sufficient provocation except – if the
words described something that if witnessed would be
sufficient, then those words would suffice. (E.g. “Eat me,
prick!” is not sufficient, but “ I banged your wife last night,”
would be).

3. MODERN TREND IN ADEQUATE PROVOCATION AND
THE REASONABLE PERSON STANDARD: is to relax the
rigid categories of provocation and broaden them. Additionally,
the trend is to take into account the attributes of the actor when
determining the objective sufficiency of the provocation (c.f. MPC).
a. Rowland v. State (1904): ∆ walked in on his wife after she
had just committed adultery and when he went to shoot the
paramour, shot his wife instead. T/C found him guilty of
murder, the Miss. S. Ct. held the proper charge was voluntary
M/S and remanded. Note: this is a departure from the
traditional rule, where the adultery had to be actually seen,
the modern trend is to allow the provocation to be
sufficient if the lovers are found just after coition, or even
of the belief of adultery is honest and reasonable but
mistaken (see Price v. State)
b. People v. Berry: The case of the amorous Yako. Berry killed
his wife Rachel, after she taunted him with pictures and stories
of her lover Yako, whom she had met in Israel soon after their
marriage. ∆ was to meet with Rachel to talk and was in her
apartment and slept overnight waiting for her. When she
returned she began screaming at him at he killed her. Rule:
Cumulative Provocation The word “passion” in “heat of passion” murder need not
be only rage or anger, but may be any violent, intense,
high-wrought or enthusiastic emotion and it may be
Contra State v. Gounagias: brought on over a period of prolonged taunting and
“Provocation which does not
cause instant resentment but provocation.
which is only resented after
being brooded upon is not c. The MPC in 210.3(b) Manslaughter is “a homicide that would
adequate...” (the sodomy otherwise be murder is committed under the influence of
bragging case). Old C/L. extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. The reasonableness of
such ... shall be determined from the viewpoint of a person in
the actor’s situation under the circumstances as he believes
them to be.” A subjective standard? Not quite, the comments
say that only physical attributes such as age, race, handicaps,
and mental capacity are considered not any idiosyncratic moral
values.
4. The “Cooling Off” Period:

a. At common law, a court could examine the amount of time
lapsed and determine as a matter of law that the defendant had
cooled off if an unreasonable amount of time had passed.
Modern trend is to leave it to the jury. As noted, the time must
be objectively insufficient (a reasonable person would not have

cooled), and subjectively insufficient (the defendant did fact
cool off).
Ex parte Fraley: Decedent had been acquitted of murdering

∆ ’s son 9 or 10 months prior to being killed by ∆ , who sought
heat of passion instruction. Ct. refused.
Rule: (Majority View) The question is not alone whether
the defendant’s passion did in fact cool, but also whether
there was sufficient time in which the passion of a
reasonable man would cool. If the passion of the actor did
in fact cool, which may be shown by the circumstances
Sufficient time to cool as
a “matter of law.” (planning, conducting business, etc.) the length of time is
irrelevant. However, if it did not in fact cool, yet such time
intervened so that the passion of the average person would
have cooled, then there is no reduction to M/S.
b. Under the MPC the sufficiency of the cooling period is
measured from the viewpoint of the actor in the
circumstances, as he believes them to be. (See 210.3(b)). In
addition, the commentary recognizes that in some cases the
passion or emotional disturbance may increase over time.
5. Cultural Relativism – People v. Wu: For cultural reasons, Helen
Wu, a Chinese national, feared the stigma of an illegitimate child
and believed she could only protect the child in the afterlife (a
common Chinese belief). She killed her son and tried to kill herself
but lived. At trial, she sought to have cultural evidence admitted to
show its bearing on provocation. The Court held that such factors
were not “idiosyncratic moral beliefs” and allowed the
testimony. The Court also noted that she may have been in a
“fugue” state, which would make her actions unconscious and
therefore involuntary.
SUMMARY: C/L AND MPC VOLUNTARY MANSLAUGHTER

Common Law MPC
“Heat of passion” “Extreme mental or emotional disturbance”
Judged from the viewpoint of the actor in the
1. Objectively adequate (traditionally
circumstances, as he believes them to be. No
Provocation the categories; modern is looser)
categories, may be cumulative provocation, and
2. Subjectively adequate – actor was in manifested by any ‘high-wrought’ emotion.
fact provoked Cultural differences may be relevant.
1. Objectively insufficient time to cool.

2. Subjectively insufficient – did not in Judged by viewpoint of actor in circumstances, as
Cooling Off Period
fact cool. (But if did not cool w/in he believes them to be.
reasonable time, no reduction)

V. UNINTENTIONAL HOMICIDE
A. INVOLUNTARY MANSLAUGHTER and NEGLIGENT
HOMICIDE: A C/L distinction, no separate category under MPC. It is
usually “reckless murder” although some states include negligence in the
definition, either explicitly or by defining recklessness to mean “gross
negligence” (see Welansky) or even ordinary negligence (see Williams). The
important thing to remember is that the mens rea for involuntary M/S varies
greatly from state to state. The Code has only one section on M/S that
includes reckless homicide (210.3). Negligent homicide is treated as a
separate offence (210.4).
1. Commonwealth v. Welansky (Mass.): state defined invol. M/S as
“willful, wanton, or reckless” conduct resulting in death. The court
defined this as a “conscious disregard of a substantial risk that the
actor knew or should have known” thus including “gross negligence.”
The ∆ was convicted of involuntary m/s because of gross negligence in
operating his club (the Cocoanut Club in Boston) so that a fire killed
hundreds of people.
2. State v. Williams (Wash.): Parent s failed to get kid’s tooth fixed b/c they
were afraid that he would be taken away. The kid died of an infection and
the parents were convicted of involuntary m/s. The court held that the
standard was ordinary negligence, what they called failure to exercise
reasonable prudence and ordinary caution.
3. Physicians: at least one state (Fla.) holds that if a doctor is grossly
incompetent, or inattentive, or displays criminal indifference to the
welfare of his patients he may be guilty of negligent homicide. (Gian-
Cursio v.State).
4. Hazing: Texas (along with many others) has a statute that makes hazing
that causes an unreasonable risk of harm to be the basis of either
negligent homicide or involuntary manslaughter.
5. Vehicular Homicide: Many states have laws that punish for those who
accidentally kill while driving drunk. Most create a separate category of
liability below involuntary m/s and several below negligent homicide.
The MPC includes vehicular homicide under negligent homicide. (210.4).
i. People v. Hansen: ∆ convicted of “gross vehicular homicide”
under California law which made driving drunk and committing a
traffic offense a crime. He was convicted under this statute b/c he
wasn’t wearing a seatbelt.

B. RECKLESS MURDER
1. “Depraved Heart” Murder: At common law murder done with “an
abandoned and malignant heart”, “a wicked disposition”, “hardness
of heart”, “a mindless disregard for social duty”, it requires a mens rea
less than knowledge and is unintentional but because of the circumstances
surrounding the murder it gets kicked up to murder. Under the Code, it is
included in the section on murder 210.2(1)(b).
a. Mayes v. The People (1883): ∆ threw a beer glass at his wife
while she was carrying an oil lamp which spilled and burned her to
death. ∆ made no effort to help. Rule: “An act done with an
abandoned and malignant heart [read extreme recklessness
manifesting indifference to human life] resulting in death, is
murder, even if death is unintended.”
b. People v. Protopappas: The case of the dentist from hell. ∆ knew
that victims were overly sensitive to anesthesia but gave them too
much anyway and then failed to give any CPR or call anyone to help.
They died. He was convicted of depraved heart murder.
c. Berry v. Superior Court: ∆ used a killer pit bull to guard his
weed, man. Told neighbors that dog was deadly but that he had a
fence. A toddler got through the fence and went to pet the doggie,
whereupon it ate him. ∆ was convicted of depraved heart murder
d. People v.Watson: ∆ had a .23 BAL and was driving 84 mph in a
35 zone. He hit and killed another driver, just after he had narrowly
missed another. The Court rejected the idea that the vehicular
homicide law precluded a murder charge and convicted him of
depraved heart murder.
Cornwell’s Framework for Looking at Depraved Heart Murder:
1. How substantial was the risk disregarded? (need “gross recklessness”)

2. Is there any social utility in the conduct or is the conduct immoral?
3. What is the actor’s subsequent conduct? (did he try to help the victim, did he
ignore him. Some states hold that this is irrelevant.)
C. FELONY MURDER: A murder occurring during the commission or

attempt to commit or flight from a felony (usually). This doctrine presumes
malice on the basis of the commission of a felony dangerous to human
life, and automatically upgrades any killing to first degree murder. At
C/L this was an expansive doctrine, but b/c it tended to sweep in many people
who did not have the requisite mens rea, modern courts have sought to limit
its application by causation principles, limiting it to certain dangerous
felonies, and the principle of res gestae. Prosecutors love this rule because
no additional proof is required for the murder conviction, and it is usually first
degree murder. At least one Supreme Court has abolished the FM rule
outright, Michigan.
1. Dangerous Felonies: Most jurisdictions limit first degree felony murder
to killings occurring during the commission of certain enumerated
felonies. Generally, burglary, assault, arson, rapes, kidnapping
(BAARK). Some include deviant sexual intercourse by threat of force.
However some analyze each case to determine if the felony is inherently
dangerous to human life.
2. Causation: In most jurisdictions, the killing must be foreseeable at the
time of the commission of the offense. In a few such as California, the
felons are strictly liable for all deaths proximately resulting from the
commission of the crime.
a. Proximate Cause Approach - People v. Stamp (California): ∆ s
robbed victim’s place of business. 20 min after the robbery, victim
had a heart attack experts said was caused by stress of the robbery.
∆ ’s convicted of first degree felony murder. Rule: (Minority) If a
felon, in the commission of a dangerous felony, sets in motion a
series of events resulting in death, unless there is an efficient
intervening cause, the felony is the proximate cause of the death
and felons are guilty of felony murder. The death need not be
intentional or foreseeable. (The Court emphasized that the felon
must take his victim as he finds him).
3. Res Gestae and the reach of the FM Rule: Literally “things done,” this
doctrine limits liability to deaths caused in furtherance of the felony,
either attempting, committing, or fleeing. The homicide must occur in
close proximity to the time, place, and in causal relation to the
underlying felony. The actual limits are defined on when you hold the
crime to be over i.e., when has flight ended.
a. People v. Gladman: 15 min after robbing a deli, ∆ was hiding
under a car when he was approached by a PO. ∆ shot and killed him.
He was convicted of FM. Rule: Whether a murder is committed
during the immediate flight from a felony and is thus within the
res gestae of the felony so as to support a FM conviction, all
relevant circumstances must be considered:
i. Did the felony and the homicide occur in the same
location?
ii. If not, how far apart?
iii. How long was the interval between the felony and the
homicide?
iv. Did the felons have possession of their “criminal fruits?”
v. Had the felons reached a place of temporary safety?
b. People v. Hickman: During the pursuit of ∆ , who was unarmed,

following a burglary, PO accidentally shot and killed another PO
thinking it was ∆ . ∆ was convicted of FM.
i. Rule: The FM rule applies whether the killing during the
commission of the felony or in the immediate flight from is
intentional or accidental, or is committed by co-felon w/o the
connivance of the defendant, or even by a third person trying
to prevent the commission of or escape from the felony.
ii. Rule: Generally, the FM rule is not applicable against a
surviving co-felon when a co-felon is justiably killed during
the commssion of the felony. (But if one felon kills the other, he
may be charged with murder).
Note: Some states like NY have solved the Hickman problem by
statute, making it an affirmative defense that the felon was
unarmed, did not commit or solicit the homicidal act, had no
reasonable ground to believe that co-felons were armed, and had
no reasonable ground to believe that co-felons would engage in
deadly conduct. (See NYPC § 125.25)
c. People v. Washington: ∆ was robbing a gas station when the
victim of the robbery shot and killed a co-felon. The state charged ∆
w. FM. Rule: For a defendant felon to be convicted of FM, the
killing must have been committed by the ∆ or a co-felon acting in
furtherance of their criminal design. It is not enough that the
killing was reasonably foreseen risk of the commission of the
felony. Justice Traynor held that the purpose of the rule was not to
deter robbery, but to deter killings in furtherance of robbery.
4. Misdemeanor Manslaughter Rule: Also called the “unlawful act

doctrine,” it creates a form of M/S liability parallel to FM. Although the
MPC and the majority of states have abolished the rule, a number of
states have kept it on the books, or retained in C/L form. It was defined in
U.S. v. Walker as
(1) The unlawful killing of a human being
(2) With either,
(a) The intent to commit a misdemeanor dangerous in
itself, or
(b) An unreasonable failure to perceive the risk of harm to
others.
Walker was convicted of M/S when he dropped his unlicensed (the
dangerous misdemeanor) gun and it went off, killing a bystander.

a. In the jurisdictions that have MMR, if the underlying misdemeanor
is malum is se, (carrying a loaded unregistered gun), the defendant is
strictly liable for all deaths resulting. If the misdemeanor is malum in
prohibitum, the death must be proximately caused by the
misdemeanor. Example: speeding is malum in prohibitum so if a death
occurs it must be proximately caused by the excess speed (if it would
have occurred anyway no conviction). This is called the Unlawful
Excess Theory for MMR.
5. Second-Degree Felony Murder: Many states authorize courts, by statute

or C/L to impose liability for killings resulting from the commission or
felonies other than the enumerated felonies of the FM rule, but are
considered dangerous enough to justify invocation of the FM rule.
Generally before a court may apply the 2° FM rule, it must determine
whether the felony itself is dangerous to human life (a high probability of
death).
a. The majority of states examine the felony in the abstract, that is
the least dangerous way the felony can be committed, without
reference to the facts of the case, to determine its dangerousness.
i. In California, the following have been found to be inherently
dangerous in the abstract: furnishing of heroin, meth
amphetamine, methyl alcohol, burning a car, kidnapping by
fraud, and furnishing cocaine (People v. Patterson).
b. A minority of states looks to the felony as it applies to the facts
of the case.
6. Felony Murder and the MPC: the Code takes an unusual approach to
FM. While purporting to abolish it, in the section on murder, 210.2(b), it
makes the commission of an enumerated dangerous felony the basis
of a rebuttable presumption of murder liability. Only one state (NH)
has adopted the MPC provision and it remains to be seen if this is
Constitutional in light of Francis v. Franklin.
7. Merger of the Homicide and the Other Crime (The “Merger
Limitation”): In many states the FM rule does not apply if the
underlying felony is an offense that is an “integral part” or is “included
in fact” in the homicide itself. The underlying felony must have an
independent felonious purpose. Otherwise, the felony itself is not
sufficiently independent of the death and therefore merges with the
homicide, it disappears or is subsumed. The easiest example is M/S, since
M/S is an inherently dangerous felony, if there were no merge limitation,
every M/S would be murder. Another common limitation is felonious
assault (assault w. a deadly weapon), it merges with the homicide b/c the
elements are not independent. However, armed robbery does not merge
b/c the felonious purpose is distinct from the murder (intent to rob). The

best way to remember is if the felony is a lesser-included offence of
murder (M/S, assault, etc.), it merges, otherwise it is independent.
Summary of Homicide Tables:
COMMON LAW HOMICIDE DISTINCTIONS

MURDER MANSLAUGHTER
Intent to Kill (second-degree unless
Intentional
Homicide
premeditated, then first-degree) Voluntary: Intentional killing done in the heat of

Intent to do serious bodily harm (second passion
degree)
Depraved Heart (second degree)

Unintetional
Homicide
Invloluntary: unintentional killing done recklessly

or negligently, mens rea varies with jurisdiction
Felony Murder (usually second degree)
MENS REA AND HOMICIDE UNDER THE MPC

Murder Manslaughter Negligent Homicide
Purpose
 Yes N/A
 Yes, But only if under the
influence of extreme
Knowledge mental or emotional
disturbance
 Yes N/A
Recklessness  Yes, But only under

circumstances manifesting N/A
 Yes
extreme indifference to
human life
Negligence
N/A N/A  Yes

VI. DEFENSES: JUSTIFICATION AND EXCUSE
A. Justification and Excuse Defined: While often used interchangeably,
they are theoretically distinct At early English C/L justified acts were not
punished at all, but excused acts were punished but the actor was allowed to
petition the Crown for a pardon. Today both justification and excuse defenses
usually completely exonerate the defendant.
1. Justification: this defense focuses on the conduct and says that what the
actor did is not wrong b/c of the circumstances under which he did it,
and therefore he should not be punished or even censured. This can be
due to a social benefit accruing from what would be otherwise bad
conduct, or a moral interest or right is protected, or the bad conduct was
the lesser harm than the one prevented. Self-defense is a justification
defense – a person is justified in protecting himself. In justification
defenses, the burden of persuasion is on the prosecution to disprove
justification.
2. Excuse: This defense focuses on the actor and says in essence, the
conduct is wrong and it harmed society, but b/c of the circumstances he
should not be blamed for it. This theory has been explained by the lack
deterrence value in punishing conduct that is beyond the actor’s control
(insanity or coercion), and under the idea that it recognizes human frailty
and the limits of character. Duress is an excuse defense. The burden of
persuasion is on the defendant to prove an excuse.
“A defense of justification is the product of society’s determination that the

actual existence of certain circumstances will operate to make legal and proper what
would otherwise be criminal. A defense of excuse on the other and does not make legal
what would ordinarily be criminal, instead it recognizes the criminality of the conduct
but excuses it because the actor believed the circumstances actually existed which would
justify his conduct but in fact they did not exist.” State v. Leidholm, 334 N.W.2d 811
(N.D. 1983)
B. DEFENSIVE FORCE (SELF-DEFENSE):

1. A justification defense. At C/L, an actor is justified in using force upon
another to prevent injury to himself if he is not the aggressor and he
honestly and reasonably believes such force is necessary to protect
himself from imminent unlawful harm. Thus he must actually believe
in the necessity and the belief must be reasonable to b fully justified.
The reasonableness of the need to use the defensive force determines if it
is a “perfect” or “imperfect” defense:

a. Perfect Self-Defense: Where the actor’s belief in the necessity of using
force to protect himself is both honest and reasonable. It is a full
exoneration.
i. People v. LaVoie: Four drunks rammed LaVoie as he drove home
from work at his pharmacy late at night. When he stopped they
threatened him and he shot and killed one of them. Rule: When a
person has reasonable grounds of believing and does in fact
have actually believe he is in imminent danger of being killed
or suffering great bodily harm, he may act on such
appearances and defend himself, even to the extent of taking
human life if necessary, although it may turn out the
appearances were false and that he was mistaken as to the
extent of the actual danger.
b. Imperfect Self-Defense: where the actor’s belief in the necessity of
using force is honest but unreasonable. Most jurisdictions allow
imperfect self-defense to reduce murder to M/S or negligent
homicide (b/c although not justified, his mens rea is only reckless or
negligent), but a few do not recognize imperfect self-defense (NY for
example, see Goetz).
Perfect vs. Imperfect Self-Defense from Leidholm:
If a person has an actual and reasonable belief that force is necessary to protect himself from
danger of imminent unlawful harm, his conduct is excused or justified. However, if a person’s
actual belief in the necessity of using force is unreasonable his conduct will not be justified or
excused, and he will be guilty of an offense for which recklessness or negligence suffices to
establish culpability. (I.e. manslaughter if belief is reckless or negligent homicide if belief is
negligent). Note: some states do not subdivide the unreasonableness of the belief and thus the
actor is guilty of murder.
2. “Unlawful Force”: note that the actor can not defend against the
imposition of lawful force, i.e., justified force (a PO arresting you).
3. The Necessity Rule: Implicit in the self-defense rule, is the requirement
that the use of force be used only to the extent necessary. Thus, a
person may not use force to repel and attack if a non-forceful response
will suffice. Note this implicates the reasonableness of the actor’s belief.
Example: Smacking with an aluminum baseball bat an octogenarian
attacking you with a flyswatter and a can of cheez-wiz is not justified (or
reasonable), if you know or should know you could disarm him with little
effort.
4. The Proportionality Rule: Provides that a person can not use force that
is excessive in relation to the harm threatened. Example: if V threatens
to strike ∆ with a small, soft twig, on a public road, and the only way ∆
can avoid being hit is to push V into a speeding Mac truck, ∆ must
abstain and seek compensation for the battery after the fact. The use of
Deadly force in self protection is thus authorized only when the
unlawful force is deadly or capable of grievous bodily harm.
5. The Reasonable Belief Rule: This is the big one in self-defense. At C/L,
the reasonableness of the actor’s belief in the necessity of using force was
measured by the objective standard. The MPC and a few states have
modified this to either a completely subjective standard (see Leidholm) or
a reasonable person in the actor’s situation standard (see MPC and
Goetz).
a. The Subjective Standard- State v. Leidholm: Janice Leidholm
was involved in a stormy marriage with her husband Chester. After an
argument where he pushed her repeatedly to the ground she stabbed
him while he slept. ∆ claimed self defense and provided expert
testimony on “battered wife syndrome.” ∆ claimed that T/C
instruction on objective reasonableness standard was error. Ct. agreed
and remanded for NT and evidence of BWS.
i. Rule: The standard to measure the reasonableness of the
defendant’s belief in the necessity of use of force is
subjective: the finder of fact must view the circumstances
attending the an accused’s use of force from the standpoint of
the accused (taking into account the mental and physical
characteristics of the accused and what the accused saw and
knew) to determine if they are sufficient to create in the
accused’s mind an honest and reasonable belief that the use
of force is necessary to protect himself from imminent harm.
It is not a “reasonable person” standard.
ii. “Battered woman syndrome” is a phenomenon in which a
regular pattern of spouse abuse creates in the battered spouse low
self-esteem and a “learned helplessness” i.e. a sense that she
can not escape from the abusive relationship. This syndrome is
not of itself a defense, but testimony regarding the existence of
such in a defendant may be relevant to determining the
reasonableness of the defendant’s belief in the necessity of force.
However, proper jury instructions about the subjective standard
of reasonableness do not require separate instruction on the
syndrome.

Note: some states that have followed Leidholm only allow this
subjective standard in battered spouse and BWS cases. Further,
several courts allow evidence of BWS but do not allow experts to
testify to the ultimate fact of whether or not the ∆ has it. And some
do not allow self defense at all for sleeping batterers. ND applies it in
all self-defense cases.
Note: even if applying a subjective standard, if the jury finds the
belief unreasonable, the next question is how unreasonable- whether
the belief was reckless or negligent. This determines M/S or negligent
homicide (where available).
Note also: if the belief is determined to be dishonest, it they think the
actor is lying, he is guilty of murder.
b. The Modified Reasonable Person Standard – People v. Goetz:
Goetz shot four unarmed black teenagers on the IRT because he
believed they were attempting to rob him. Indicted for assault,
attempted murder, and weapons possession. At T/C charges dismissed
b/c T/C said standard was subjective. Ct. App. reversed.
i. In New York, which did not adopt the MPC subjective standard
MAJORITY RULE for the reasonable belief in the necessity of using force in self-
defense, the defendant’s belief must be honest and objectively
reasonable under the circumstances or in the defendant’s
situation.
ii. The term “objective under the circumstances” means more than
the physical movements of the assailant, they also include any
relevant knowledge the defendant had, the physical attributes of
the defendant and other persons involved, and the prior
experiences of the defendant which could provide a reasonable
basis for a belief that use of deadly force was necessary.
c. The MPC standard: § 3.04 “ [T]he use of force is justified
when the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion”
This represents two departures from the CL:
i. Tends to support a subjective standard, 3.04 doesn’t mention
reasonableness, suggesting a pure subjective standard, but §
3.09(2) (which modifies all justification defenses) provides for
liability if the actor was reckless or negligent in his belief and
since recklessness and negligence are measured from the
viewpoint of the actor’s situation this appears to be also
subjective. The commentary on the code says that “situation” is
intentionally vague and courts have ranged from a completely
subjective standard to the somewhat modified objective standard

like in NY. Note that § 3.09 recognizes an imperfect self defense
under the code.
ii. Expands the idea of imminent: “immediately necessary ... on
the present occasion” tends to suggest that force may be
authorized sooner than under the common law immediacy
standard.
d. MPC and the Use of Deadly Force: §3.04(2)(b) – The use of
deadly force is not justified unless the actor believes that such force is
necessary to protect himself on the present occasion against: (1)
death, (2) serious bodily injury, (3) forcible rape, (4) kidnapping.
MPC AND SELF-DEFENSE SCENARIOS:

BELIEF SCENARIO # 1 #2 #3 #4
Does the actor

actually need to use
force to protect YES NO NO YES
himself from
unlawful force?
Does the actor

honestly believe he YES YES YES NO
needs to use force...
Does the actor YES, had he

reasonably believe honestly believed, it
YES YES NO
he needs to use would have been
force... reasonable
Imperfect Defense:
CONDUCT IS
CONDUCT IS CONDUCT IS NO DEFENSE (see
RESULT  MITIGATED –
JUSTIFIED EXCUSED 3.04(1))
reckless = m/s; negl.
= neg. homicide.
6. The Duty to Retreat: The general rule is that self-defense is measured

against necessity (i.e. that deadly force is not justified to repel non-
deadly aggression). However, a majority of states have adopted a rule
that a non-aggressor has no duty to retreat in the face of unlawful deadly
force even if he is aware of a safe avenue of retreat and can in fact
retreat in complete safety. A minority of states and the MPC (§

3.04(2)(B)(ii)) impose a duty to retreat from deadly aggression only if it
can be done in complete safety and the actor reasonably believes that
he can safely retreat (same standard of reasonableness as for use of
force). In states that recognize such a duty there is generally an exception
for one’s residence:
a. The Castle Rule Exception to the Duty to Retreat: Today, even in
jurisdictions imposing a duty to retreat, there is no duty to retreat from
one’s home even if there is a certain safe route (the so called “castle
rule”). The MPC extends this exception to one’s place of work unless
the actor was the aggressor or the aggressor works in the same place and
the actor is aware of it. (see § 3.04(2)(B)(ii)), but only if it can be done
in complete safety.
7. The Aggressor Exception to the Use of Deadly Force: At C/L and
under the code, one who starts an altercation or provokes an attack
can not then plead self-defense, if he kills a person. However, if the
original aggressor communicates his intent to withdraw and makes a
good faith effort to do so, he is restored to the right of self-defense.
i. United States v. Peterson: Peterson claimed that he killed in self
defense when he brought out a gun and confronted and then shot
Keitt as Keitt was preparing to leave Peterson’s property after he was
caught trying to steal Peterson’s windshield wipers from his wrecked
car. ∆ was convicted of M/S b/c court held that Keitt had
withdrawn.
(a) Rule: While there appears to be no fixed rule ... an
affirmative unlawful act reasonably calculated to produce
affray foreboding injurious or a fatal consequence is an
aggression that, unless renounced, nullifies the right of
homicidal self-defense.
(b) Rule: Only in the event that the original aggressor
communicates to his adversary his intent to withdraw and in
good faith attempts to do so is he restored to his right of self-
defense.
8. Law Enforcement and the Use of Deadly Force: Included in the
discussion of self-defense b/c it is justified force. At common law, police
and other law enforcement officials were allowed to use any force to stop
a fleeing criminal. But in Tennessee v. Garner, the Court held that there
are Constitutional limits on the use of deadly force to apprehend a fleeing
felon:
a. Tennessee v. Garner A Memphis PO shot and killed Garner (π
decedent) while chasing him from the scene of a suspected burglary.
The decedent was unarmed and the PO knew it but when he ordered
the decedent to stop and he did not the PO fired and killed him.
Garner’s father sued TN, the officer et. al. for violation of his son’s

civil rights under 24 USC § 1983 and alleged violations of 4,6,8, 14
Amendments.
i. “There can be no question that apprehension [by a law
enforcement officer] by the use of deadly force is a seizure
subject to the reasonableness requirement of the Fourth
Amendment...”
ii. If the suspect threatens the officer with a weapon or there is
probable cause to believe that he has committed a serious crime
involving infliction of serious bodily harm [or continues to pose
a danger], deadly force may be used if necessary to prevent his
escape, and if, where feasible, some warning has been given.
b. Other Situations in which Defensive Force may be used by
Law Enforcement:
i. Stop and Arrest: officers may use force to overcome resistance
to arrest.
ii. Escape from custody: an officer having custody of a person is
empowered to exercise (the same amount sufficient in the
original arrest) to prevent that person’s escape/
iii. Crime Prevention: the law allows a person to use force (at times
deadly force) to prevent the commission of an offense.
iv. Suppression of riots and disorders: deadly force may be
justifiable if the actor believes it is necessary after the rioter have
been ordered to disperse and are warned that such force will be
used.
9. Spring Guns - People v. Ceballos: Ceballos was convicted of
assault with a deadly weapon when a trap gun he set in his garage fired
into the face of a teenage boy who broke open the garage door intending
to burgle Caballos. Rule: A person may be criminally liable or civilly
liable if he sets up on his premises a deadly mechanical device that
kills or injures another, even if were he present he would have been
justified under the circumstances of using deadly force.
C. NECESSITY – “CHOICE OF EVILS”: Necessity is a justification defense.

It is also called “balancing the harms.” At C/L it was applicable only where
the choice of evils was caused by natural forces (i.e., floods, fires, plague,
etc.). Modern C/L and the MPC allow necessity defenses for a broader range
of situations (speeding to get a sick person to the hospital when no ambulance
is available).
1. General Principles: To claim necessity the following criteria msut be
met:
a. Imminence: The threat must be clear and imminent, and not
speculative but reasonably certain to occur. (See Warshaw).

b. Fault: The circumstances giving rise to the necessity of choosing
between evils must be do to no fault of the actor seeking the defense.
At C/L, even a reckless or negligent creation of the situation negates
the defense. Under the MPC if the actor was negligent or reckless, he
can be convicted only of an offense that requires recklessness or
negligence as its mens rea. (see § 3.02(2)).
c. No Legal Alternative: There must be no legal alternative way to
avoid the evil, or less drastic illegal way of avoiding the harm. (see
State v. Nelson, defense not available when ∆ drove his 4X4 into the
mud and stole a public vehicle to get it out, damaging the vehicle).
d. Balancing the Harms: The evil avoided must be greater than the
evil caused by the actor’s conduct. This balancing is not left to the
actor, it is a question for the judge or jury at trail, or the legislature
determining in a statute what evils outweigh the offense charged.
Most jurisdictions favor the judge and consider it a question of law.
The MPC comment to § 3.02 is neutral, only saying it is a question for
trial or the legislature.
e. Mens Rea: The actor must honestly believe that the greater harm
necessitates his proscribed conduct. At C/L a mistaken belief negated
the defense, but some states and the MPC allow an imperfect necessity
defense to mitigate the offense. Under the MPC a reckless or negligent
mistaken belief will suffice to support a conviction for which
recklessness or negligence is the required mens rea. (See § 3.09(2)).
2. Homicide And Necessity - The Queen v. Dudley & Stephens (1884):
Dudley and Stephens, while shipwrecked in the middle of the ocean
without food or water, not having anything but a turtle and some turnips to
eat for 20 days, killed and ate a ship’s boy, Parker.
a. Rule: It is not legal justification to kill another to save oneself in the
absence of self-defense. (Because the evils are equal).
“[There is] the moral necessity, not of preservation, but of the sacrifice of ... [one’s
life] for the others, from which no country, least of all, it is to be hoped, in England,
will men ever shrink, as indeed they have not shrunk. It is not correct, therefore, to
say that there is an unqualified necessity to preserve one’s life....” Lord Coleridge
3. Escape from Intolerable Prison Conditions - People v. Unger: Unger

was serving a 1 to 3 year term in a minimum security prison when he
escaped allegedly to avoid homosexual assaults and death threats. He
claimed necessity and compulsion.
a. The defenses of necessity and compulsion are available in
escape cases and the jury should be instructed where the evidence
adduced at trial is sufficient to raise the defense. Note not all states
recognize this defense, primarily over policy considerations.
b. Factors and evidence that may be relevant, but not necessary,
to the allowing of the defenses of necessity or compulsion are (contra
Lovercamp, another earlier prison escape case, which made them
preconditions):
i. Specific threats of death, forcible sexual attack, or substantial
bodily injury in the immediate future
ii. No time to complain to the authorities or a history of futile
complaints
iii. No time or opportunity to resort to the courts
iv. No evidence of force or violence used against a prison official or
other innocent persons during the escape
v. The prisoner immediately reports to the authorities once in a place
of safety.
4. Political Necessity - State v. Warshaw: Warshaw and other anti-nuke

protesters were arrested and convicted for criminal trespass when they
refused to leave the grounds of the Vermont Yankee nuke plant and were
trying to prevent workers form restarting the plant. They sought to plead
necessity claiming the dangerousness of nuke power and of that plant in
particular. The Court did not allow the defense b/c the threat of harm was
not imminent.
a. “To be imminent a danger must be, or reasonably appear to
be, threatening to occur immediately, near at hand, and
impending. The necessity defense cannot lightly be allowed to justify
acts taken to foreclose speculative and uncertain dangers. Its
application must be limited to acts directed to the prevention of harm
that is reasonably certain to occur....”
b. Judicial Handling of “Political Necessity” Cases: In most cases
like Warshaw, where “political necessity” is invoked the usual method
of handling it is that the Judge will allow the political testimony to be
heard by the jury (and the press and the public) and then instruct the
jury that it is irrelevant. Thus the jury if it so desires can use the trial to
send a message” to the public officials. However, the courts in D.C. do
not follow this pattern. Further, in anti-abortion protest cases, judges
rarely allow the defense of necessity (to save babies) to be heard.
5. Necessity and the MPC:

§ 3.02 Justification Generally: Choice of Evils
(1) Conduct that the actor believes to be necessary to avoid a harm
or evil to himself or to another is justifiable, provided that:
(a) the harm or evil sought to be avoided by such conduct is
greater than sought to be prevented by the law defining the
offense charged; and

(b) neither the code nor other law defining the offense provides
exceptions or defenses dealing with the specific situation
involved; and
(c) a legislative purpose to exclude the justification claimed
does not otherwise appear.
(2) When the actor was reckless or negligent in bringing about the
situation requiring the choice of harms or evils or in appraising
the necessity for his conduct, the justification afforded by this
Section is unavailable in a prosecution for any offense for which
recklessness or negligence ... suffices to establish culpability.
6. Differences Between MPC and C/L Necessity:

a. MPC rejects the imminence requirement – a lack of alternatives
is sufficient.
b. Under MPC, an actor does not automatically lose his defense if
he was negligent or reckless in bringing the situation about. See supra.
c. Under MPC all forms of necessity qualify, not just natural forces
but also man made situations not amounting to duress (intolerable
prison conditions).
d. The defense may be raised in murder prosecutions – an
“accounting” is permitted (sacrificing one to save many).
D. DURESS (Coercion): Duress is a defense of excuse. It is always due to

human actions threatening the actor. The differences between C/L and MPC
duress parallel those in necessity:
1. Elements of common law duress: to claim the defense of duress,the
crime must be committed under the following circumstances:
a. Another person threatened to kill or grievously injure the actor or
a third party (usually only a close relative), and
b. The actor reasonably believed the threat was genuine, and
c. The threat was “present, imminent, and impending” at the time
of the criminal act (State v. Toscano (NJ 1977), and
d. There was no reasonable escape form the threat except through
the compliance with the demands of the coercer, and
e. The actor was not at fault in exposing himself to the threat.
2. Duress and Homicide - Lynch v. Director of Public Prosecutions for
Northern Ireland: Lynch (∆ ) was convicted as a principal in the second
degree (aidor and abettor) to murder of a constable when he drove the
IRA gunmen to the decedent’s house under the implied threat of death.

a. Rule: Duress may be considered as a defense to aiding and
abetting a murder, even though it may not be used if the accused
actually committed the murder.
b. N.B. - The House of Lords overruled Lynch in 1987 in Regina v.
Howe, eliminating the defense of duress in all murder prosecutions.
c. Most jurisdictions at C/L follow Howe and do not allow duress as a
defense of any murder prosecution.
3. Model Penal Code § 2.09 Duress:

(1) It is an affirmative defense that the actor engaged in the conduct
charged to constitute an offense because he was coerced by the use,
of or threat to use, unlawful force against his person or the person
of another, that a person of reasonable firmness in his situation
would have been unable to resist.
(2) The defense provided by this Section is unavailable if the actor
recklessly placed himself in a situation in which it was probable that
he would be subjected to duress. [It] is also unavailable if he was
negligent in placing himself in such a situation, whenever
negligence is sufficient to establish culpability for the offense
charged [but it would be available if the mens rea is recklessness
or higher and he was only negligent].
(3) It is not a defense that a woman acted in the on the command of her
husband unless she acted under such coercion as would establish a
defense under this Section.
(4) When the conduct of the actor would otherwise be justifiable under
Section 3.02 [Necessity], this Section does not preclude such
defense.
[Emphasis added]
Comment to § 2.09:
“[R]easonable firmness... is not wholly external ... account is
taken of the actor’s “situation” .... Stark tangible factors that
differentiate the actor from another, like his size, strength, age or
health, would be considered ... [but] matters of temperament
would not.”
“[T]hreats to property or even reputation can not exercise
sufficient power over persons of “reasonable firmness” to
warrant consideration [of this defense].”
4. Differences Between C/L and MPC Duress: Overall the code is much
broader than the common law in allowing the use of duress:

a. The MPC does away with the C/L requirement of use or threat of
“deadly force” or grave bodily harm, instead only requiring that the
force be unlawful.
b. The MPC also eliminates the requirement at C/L in some jurisdictions
that the threats be to the actor or a close relative, allowing threats to
any person to suffice.
c. The MPC eliminates the C/L “imminence” requirement from duress.
Further, the comment notes that “long and wasting pressure may
break down resistance more effectively than a threat of immediate
destruction.”
d. In eliminating the requirements of deadly force, threat to self, and
imminence, the Code says that these are evidentiary and go to whether
a “person of reasonable firmness” could resist.
e. The Comment also expressly says that the defense of duress may be
available in homicide cases if the coercion is sufficiently strong.
f. Also note that the Code modifies the “no fault” requirement by
allowing an actor who was negligent in exposing himself to threats to
use the defense so long as the mens rea for the offense charged is
higher than negligence. If he is reckless, knowing or purposeful the
defense remains unavailable.
E. DEFENSES: MENTAL ILLNESS: Insanity (or mental illness) is a defense

of excuse. It does not seek to justify behavior but is concerned with moral
blameworthiness. Insanity does not mean that the actor did not have the mens
rea for the crime, it means that because of the mental illness, the actor should
not be blamed because he is not responsible for his actions, and therefore there
is no deterrent value to punishment. Recently there has been a backlash
against the defense and many jurisdictions now do not allow acquittal (NGRI)
but instead have a conviction (GMBI) but place the defendant in a mental
institution until he is no longer insane then he goes to prison. There are four
test for determining legal insanity:
1. M’Naghten Test: (the majority rule after Hinkley) – This test focuses
on two issues. A person is insane, if at the time of her actions, she was
laboring under a such a defect of reason, arising from a disease of the
mind, that she: (1) did not know the nature and quality of the acts that
she was doing; OR (2) if she did know it, she did not know what she was
doing was wrong.
a. “To know” (in both prongs): two approaches:
i. Cognitive Knowledge – some courts apply this narrow view. A
person can be found sane if she can describe what she is doing
and can acknowledge the nature of her conduct.

ii. Affective Knowledge - Other courts require a deeper meaning
for knowledge, which is absent unless the actor can evaluate her
conduct in terms of its impact on others and appreciate the total
setting in which she acts.
b. “Nature and quality” – if a defendant squeezes a persons neck,
believing it is a lemon, she does not know the nature and quality of her
act. However, if she squeezes a victim’s neck believing the victim to
be Zog the Avenger and she must kill him, she does know the nature
and quality. This is very high standard, the actor must not know that
her actions will cause death.
c. “Wrong” – It is unclear whether “wrong” refers to moral or legal
wrong and courts are split.
i. Legal wrong (more restrictive) – the actor knows its against the
law.
ii. Moral wrong– the actor knew the act was something he ought not
do. Thus if the actor, due to mental illness, believes that he must
kill Zog, he may know it is illegal, but in his mind morally he is
justified
2. The Durham Test: The broadest of the four tests, it is hardly used today.
It provides that a person is excused if her unlawful act was the “product
of a mental disease or defect.” If the defendant was suffering from a
mental illness that is recognized at the time of the offense, and the
criminal conduct would have not occurred but for the mental defect, the
defendant is acquitted. The problem is what constitutes a mental disease
or defect - the DSM is constantly changing. As such, it leaves almost all
to expert testimony.
3. Irresistible Impulse Rule: (Often combined with the M’Naghten Test).
A person is insane if, at the time of the offense: (1) she “acted from an
irresistible and uncontrollable impulse”; (2) she “lost the power to
choose between right and wrong, and to avoid doing the act in question
her free agency at the time was destroyed:; (3) the defendant’s will has
been so completely destroyed that her actions are not subject to it but are
beyond her control. Known as lack of voluntary control.
4. The ALI (Model Penal Code) Test: Combines the two prong
M’Naghten Test and part of the Impulse Rule. Thus, a person is not
responsible for her criminal conduct, if at the time of the conduct, as a
result of mental disease or defect, she lacked substantial capacity to: (1)
[cognitive prong] appreciate the criminality or wrongfulness of the
conduct; or (2) [volitional prong] conform her actions to the requirements
of the law.
Note: the ALI Test uses “appreciate” to avoid a narrow definition of
knowledge in the cognitive prong.

5. Smith v. State: Although two out of three mental health experts testified
that ∆ was legally insane, and evidence of prior history of mental illness,
∆ was convicted of shooting a cop with intent to kill when he stole a
truck from the Army base where he was stationed and attempted to leave
Alaska by driving in the wrong direction. He was to be discharged in 7
days. Ct Smith/ ALI.
a. A trier of fact may hold a defendant to have been legally sane even
when the preponderance of expert medical testimony is to the contrary.
A trier of fact is not bound by expert testimony.
b. NGRI is an affirmative defense, and the prosecution is
not required to disprove the defense beyond a reasonable doubt until
the defendant produces “some evidence” (more than a scintilla, but
less than that which would compel a reasonable doubt as to his guilt
as a matter of law). Once a defendant produces some evidence of
insanity, the burden is on the prosecution to prove sanity beyond a
reasonable doubt. The requirement of supporting evidence is not
satisfied solely by evidence of an abnormality that is manifested only
by repeated criminal or anti-social behavior (C.f. MPC § 4.01(2)).
c.Ganzer Syndrome: or “prison psychosis” is a condition in which
one attempts to appear insane or less sane than one is for the
advantage of being thought insane. There may actually be an
underlying, no debilitating mental disorder.
6. The God Exception – State v. Cameron: ∆ stabbed his mother in law 70

times b/c he said God told him to because she was Satan’s angel. Rule: If
the defendant claims God told him to commit the bad act, even though he
knew it was wrong, some courts will hold that he didn’t “know” it was
wrong.
7. GBMI vs. NGRI : if a person is found Not Guilty by Reason of Insanity,
he is not guilty. However, he does not go free, he is usually civilly
committed based on the proof of insanity at the criminal trial (Jones v.
US). Some states have abolished NGRI altogether or have added Guilty
But Mentally Ill. NGRI means that once a ∆ is no longer mentally ill he
is released from custody. (See Foucha). A GBMI verdict means guilty
and the ∆ is held in a mental institution until not insane then he goes to
prison, and is usually a less restrictive standard in states that have both
(see Alaska Statute).
a. Disposition of Persons Adjudicated NGRI – Foucha v.
Louisiana: ∆ charged with burglary and discharging a firearm. He
was adjudicated NGRI and sent to a mental institution. After 4 years
the shrinks found that he was no longer insane, but La. refused to
release him b/c the doctors would not certify that he was not
dangerous.

i. Plurality Rule: After a verdict of NGRI, if the ∆ is pronounced
sane, the state may not continue to hold him solely because he
might be dangerous. To continue to hold a NGRI ∆ , the state must
prove by clear and convincing evidence (Addington v. Texas) that
he is both mentally ill and dangerous. The burden may not be on
the defendant to prove he is not either.
ii. O’Connor’s Concurrence: Agrees with the plurality but says they
are not saying what they are saying. She holds that a state may
continue to hold a NGRI ∆ if it has a medical justification, which
is less than insanity. Many states have latched on to this
concurrence. Example: Randall – Wis. Continued to hold ∆ for
years after he was sane b/c he had a medical justification:
“behavioral disorders” (but he was a pedophile). See also Kansas
v. Hendricks (1997) S. Ct. held that mental abnormality is
sufficient to keep a sexually violent prisoner confined.
NOTE - BURDEN SHIFTING AND DEFENSES:
Generally, the burden of persuasion can be shifted the defendant UNLESS proof of
the defense would negative the mens rea required to convict.
Example: If an element is to “knowingly write on state property with an indelible

substance”, and the ∆ claims he didn’t know the substance was indelible as a defense,
the burden can not be shifted b/c it would proof of it would negative knowledge. Once
the ∆ produces some evidence of his lack of knowledge, the prosecution must prove
beyond a reasonable doubt that he did in fact know.
Example: if the same element applied, but the ∆ claimed duress, b/c a large pink bunny
was threatening him, the burden can shift b/c it does not negative the knowledge of any
element.
INCHOATE OFFENSES
VII. ATTEMPT
A. Generally: Attempt is an inchoate or “incomplete” offense. At
early C/L it was not punished under the logic of “no harm, no foul.” Today
it is punished because an attempt would be a crime if not for an
intervening force and thus the actor has the mens rea to justify
punishment. The rationale was first expressed in Rex v. Scofield (1784) by
Lord Mansfield: “ Completion of an act, criminal in itself, [is not]
necessary to constitute criminality.”:
It is a specific intent crime, that is, the actor must have the purpose or
knowledge to commit the underlying crime. Most jurisdictions hold that
it is impossible to attempt a “reckless crime” such as depraved heart
murder, felony murder or involuntary manslaughter. But it is possible
to attempt “heat of passion” voluntary M/S. Others hold that an attempt
to do a reckless or stupid act can lead to attempt liability if recklessness is
the mens rea for the most serious offense., they hold that the only intent is
fthe intent to do a voluntary act. (see Dissent in Lyerla).
B. Attempt Elements:
1. Mens Rea: purpose or knowledge (intent or knowingly); not
recklessness or negligence.
2. Actus Reus: To be liable for attempt, the actor must have taken
some step in furtherance of the attempted crime. Note MERE
PREPARATION IS NEVER ENOUGH for attempt liability. There
are four tests among the jurisdictions for determining the sufficiency
of the act: (SPUD)
a. Substantial Step: (the MPC test in § 5.01)- the ∆ has
taken some substantial step in furtherance of the crime that
corroborates his criminal purpose. This is a looser standard and is
easier to satisfy. Below is conduct the MPC considers
corroborative that will not be held insufficient as a matter of law
(must go to the jury)(see § 5.01(2)).
i. Lying in wait
Note: Non-act evidence can often tip
the balance, especially a co-felon
ii. Enticing the victim’s presence to the scene of the crime
turning state’s evidence. (See iii. Reconnoitering the place...
Jackson (aborted bank robbery)).
iv. Unlawful entry into a structure, vehicle, or enclosure ...
v. Possession of materials to be employed in the commission of
the crime ... specially designed for unlawful use.
vi. Possession, collection, or fabrication of materials to used ....
near the scene .... where such possession has no lawful
purpose.
b. Proximity: Asks the question, how far from completion is
the actor. The defendant’s conduct must be physically proximate
to the scene of the contemplated crime. Two versions: Last Act
Doctrine – to be liable the actor must commit the last act
necessary to commit the offense (pulling the trigger, if he misses
its attempt). Dangerous Proximity Test – Pretty damn close to
finishing.
c. Unequivocality Test: a.k.a. Res Ipsa Loquitur – The ∆
is liable if his conduct clearly manifests his criminal intent, what

he has done is open to no other explanation other than he is going
to commit the crime.
d. Probable Desistance Test: The defendant must have gone
so far that in the ordinary course of events, absent outside
interference, the crime would have been completed.
C. MPC § 5.01 Criminal attempt: (Mens Rea for Attempt)

(1) Definition of attempt. A person is guilty of an attempt to
commit a crime if, acting with the kind of culpability
otherwise required for the commission of the crime, he:
(a) purposely engages in conduct that would constitute the
For attempts where the actor has crime if the attendant circumstances were as he
completed everything but the believes them to be; or
result did not happen
(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
For attempts when the actor has
not completed all of the acts in (c) purposely does or omits to do anything that, under the
commission b/c of intervention circumstances as he believes them to be, is an act or
or change of heart. omission constituting as substantial step in a course of
conduct planned to culminate in the commission of the
crime.
Thus, under the Code, attempt liability requires the defendant to exhibit
purpose with respect to any conduct element of the crime; purpose or
knowledge as to any result element of the crime; but as to the
circumstance elements of the crime, if the crime requires only
recklessness or negligence, these would suffice for attempt (the mens rea
pertaining to attendant circumstances transfer to the crime of attempt).
D. Grading of Criminal Intent:

1. Common Law – most jurisdictions grade attempt one level below
the underlying crime. Others use a fractional method, whereby a
defendant gets a proportion of the sentence he would have gotten had
he completed the crime.
2. MPC § 5.05(1) Grading of Criminal Attempt: “Except as otherwise
provided in this section, attempt [is a crime] of the same grade and
degree as the most serious offense that is attempted ... An attempt
... to commit a [a capital crime or a] felony of the first degree is a
felony of the second degree.”

Note that this approach reflects the desire to punish culpable mental
states.
E. Cases:
1. Reckless Murder - State v. Lyerla, Lyerla was convicted of 2d
degree murder and two counts of attempted 2d degree murder, when
he fired three times into a pickup truck containing three girls who
were harassing him on the interstate. One of the girls died, one was
wounded, the other unhurt. Conviction was overturned.
a. In order to commit a crime there must exist in the mind of the
perpetrator the specific intent to commit the acts constituting the
offense, therefore to commit attempted 2nd degree murder,
one must attempt to have a criminally reckless state of mind,
which is a logical impossibility.
b. “To commit murder, one need not intend to take life; but to be
guilty of an attempt to murder, he must so intend. It is not
sufficient that his act, had it proved fatal, would have been
murder.” People v. Hernandez (Colo. App. 1980).
c. Dissent: (minority view) Intent is not an element of the crime
of attempt in S.D. If one attempts a dangerous or stupid act, it is
sufficient for attempt where recklessness is the men rea for the
chief offense. The only intent or attempt necessary is a voluntary
as opposed to a non-volitional or forced act.
2. Preparation - People v. Murray, Murray was convicted of
attempting to contract an incestuous marriage with his niece. He had
requested witnesses, called for a magistrate, and they had eloped. Ct.
reversed using the “last step” test.
a. Mere preparation is not attempt. There is a difference in
making preparations to attempt an offense and actually
attempting the offense. An actual attempt is manifested by acts
that would end in the consummation of the particular offense but
for the intervention of circumstances independent of the will of
the defendant.
b. “[P]reparation consists of devising or arranging the means or
measures necessary for the commission of the offense; the
attempt is the direct movement toward the commission after
preparations are made.”
3. Assault - McQuirter v. State, McQuirter, a black man was convicted
of attempted assault with intent to rape when he “followed” a white
woman up and down the street.
a. Since assault is by definition the attempt (i.e. intent plus some act
in furtherance) to commit battery, attempted assault must be

attempted battery by an act in furtherance of assault which does
not qualify as being in furtherance of battery.
Note: Although the court here aff’d the conviction, after all it was
Alabama in 1953, some courts hold that attempted assault (an
attempted attempt) is a “metaphysical absurdity.”
4. The Proximity Test- People v. Rizzo, Rizzo and three others set out
with guns to rob a payroll from one of two people, but before they
found either of them they were arrested and charged with attempted
first degree robbery. Reversed.
a. An attempt to commit a crime requires an act “tending,”
but failing, to effect the commission of the crime. To result in
liability for attempt, the acts “tending” to effect the crime must be
so near the accomplishment of the crime that in all reasonable
probability, the crime itself would have been committed but for
timely interference.
F. Renunciation of Attempt (Abandonment):
1. People v. Staples, Staples rented a room over a bank and proceeded
to drill holes in the floor to get to the bank, but stopped before the
holes went thru. The landlord discovered his tools and turned them
over to the police. After he was arrested, Staples admitted he had
started to rob the bank but stopped because he had second thoughts.
Aff’d.
C/L: No
a. Once an actor has crossed the line from preparation to
“abandonment”
defense to attempt. attempt, his abandonment, whether voluntary or involuntary, is
immaterial and is not a defense to the crime of attempt. “Once
that attempt has been found, there can be no exculpatory
abandonment.”
2. MPC § 5.01(4) Renunciation of Criminal Purpose, which
MPC: Allows
voluntary provides that a voluntary abandonment of an attempt can be an
abandonment affirmative defense, so long as the abandonment was not caused by
defense. circumstances not present at the time the attempt started which
would “increase the probability of detection or apprehension” or
make accomplishment more difficult. Nor is voluntary
abandonment in order to “transfer the criminal intent” to some other
person or place sufficient to allow the defense
a. Note: In practice the MPC defense has been used very
little, courts usually avoid the abandonment issue if the actor
really renounced his criminal purpose by holding that he never
crossed the line from preparation to attempt.
d. The Gap Filler - Reckless Endangerment: The MPC recognizes the
gap between purpose bound attempt law and the greater number
of crimes that permit a lesser mens rea to convict, so they included
the crime of reckless endangerment to fill that gap. MPC § 211.2
“A person commits a misdemeanor if he recklessly engages in
conduct which places or may place another person in danger death
or serious bodily injury.”
G. CRIMINAL SOLICITATION: The requesting, importuning, or

commanding of another to commit an offense. In a few C/L states
soliciting a person who has no intention of carrying out the crime is not
punishable because there is no real possibility that the crime wold occur.
(See State v. Davis (soliciting a cop to commit murder, not solicitation
even when ∆ did not know he was a cop)). However, most states follow
the MPC and punish all solicitation as attempt.
1. MPC § 5.02. Criminal Solicitation.

(1) Definition of Solicitation. A person is guilty of solicitation to
commit a crime if with the purpose of promoting or
facilitating its commission he commands, encourages or
requests another person to engage in specific conduct which
would constitute such crime or an attempt to commit such
crime or which would establish his complicity in its
commission or attempted commission.
(2) Uncommunicated Solicitation. It is immaterial under
Subsection (1) of this Section that the actor fails to
communicate with the person he solicits to commit a crime if
his conduct was designed to effect such communication.
(3) Renunciation of Criminal Purpose. It is an affirmative
defense that the actor, after soliciting another person to commit
a crime, persuaded him not to do so or otherwise prevented
the commission of the crime, under circumstances
manifesting a complete and voluntary renunciation of his
criminal purpose.
2. People v. Lubow, Lubow solicited Silverman, whom
he owed money to participate in a “bust-out” credit scam to buy a
large quantity of diamond then declare bankruptcy and hide the
sale proceeds. Silverman told the police who wired him. MPC
standard.
a. For a person to be guilty of solicitation, nothing need to
be done in furtherance of the crime (no act but the
communication) and no corroboration is necessary.
b. An attempt to communicate that fails, made in order to
importune another person to commit a crime, is sufficient to
convict a person for solicitation (“attempted solicitation”).
3. Grading of Solicitation: The MPC grades solicitation
like it does attempt, the punishment is the same as completing the
solicited crime, except that solicitation of first degree felony is
punished as a second degree felony.
4. Solicitation and Attempt Liability - If the
jurisdiction has both a solicitation provision and a broad attempt
law, the MPC holds that a person can be punished for either
but not both. See § 5.05(3).
H. IMPOSSIBILITY: Conduct that otherwise would constitute

attempt may, in some cases, not constitute attempt because the crime
attempted is “impossible” to complete. In such circumstances, the actor
has the mens rea to commit the offense, but because of a mistaken factual
or legal circumstance, the actual criminality of their conduct in cast into
doubt. Impossibility is distinguished from mistake of fact or law defenses
in that in the latter the defendant is arguing he did not have the requisite
mens rea.
1. Common Law Impossibility:

a. Pure Factual Impossibility – Is not traditionally a defense.
In factual impossibility, if the facts were as the defendant
believed them to be the crime would have been completed.
The crime, though is impossible because of some factual
condition unknown to the actor. Had he known he would not
have attempted. Neither the common law nor the MPC recognize
this as a defense.
Examples of Pure Factual Impossibility:
i. Picking an empty pocket.
ii. Pointing an unloaded gun at a person and pulling the trigger.
iii. Shooting an empty bed, believing the victim is there.
iv.Attempting to poison a person with a bottle labeled arsenic,
but is actually orange juice.
b. Pure Legal Impossibility – Is a traditional defense. In
this case, even if all the facts were as the actor believes them
to be, his conduct would still not amount to a crime. Only the
defendant thinks it is unlawful, but in fact there is no law
punishing what he is actually doing. He is essentially committing
a legal act with a guilty mind.
Examples of Pure Legal Impossibility:
i. Killing an animal on federal land thinking it is illegal when it
is not.
ii. Offering a bribe to a person he believes is a juror but is in fact
not

iii. Receiving goods he believes to be stolen but which are in fact
not.
iv.Shooting a stuffed deer out of season, believing it to be alive.
c. Inherent Factual Impossibility – May be a defense, but is
extremely rare. It occurs where the method used to attempt the
crime is one that a reasonable person should know is impossible
and would not result in a crime.
Examples of Inherent Factual Impossibility:
i. Attempting to murder with voodoo.
ii. Attempting to sink a ship with a b.b. gun.
iii. Attempting to kill with AIDS by spitting on someone.
2. MPC Impossibility § 5.05: eliminates the defense of “legal”

impossibility (factual is not one anyway) in favor of a subjective
test: If the actor believes what he is doing is a crime or a substantial
step in the crime and it would be if the circumstances were as he
believed them to be, he is guilty of attempt to commit the crime.
Comment to § 5.05 (Mitigation) directs courts to reduce or even
dismiss charges where the belief of the actor is so impossible
(inherently impossible) as to result in an absurd conviction
(attempting to kill someone by voodoo).
Booth v. State, Booth bought a coat from a convicted criminal believing it
to be stolen when in fact it had been recovered by the police and the
owner. Since the coat was recovered, it was no longer “stolen property” so
it was legally impossible for the crime to occur. The court was reluctant to
so hold but that is what the law held; however the court recommended that
the legislature adopt the MPC
VIII. COMPLICITY
A. Early Common Law View: distinguished between principals and
accessories:
1. Principal in the 1st degree: the actual perpetrator at the scene of the
crime.
2. Principal in the 2nd degree: one who was present at the scene of the
felony that assisted or encouraged the principal in 1st degree.
“Presence” could be constructive, i.e. serving as lookout or guard.
3. Accessory before the fact: accessories were not present at the scene.
An accessory before the fact aided and abetted the commission of the
crime but was not at the scene either actually or constructively.
(Gave a weapon).

4. Accessory after the fact: played no role in the preparation or
commission of the crime but rather assisted the felon in escaping or
eluding capture. Usually such assistance had to be affirmative
(hiding) and not merely passive (failure to notify cops), although
some jurisdictions punished passive concealment a misdemeanor and
made those who actively concealed punishable as true accomplices
and guilty of the principal offense.
5. Misprision of Felony: one who did not disclose to authorities
knowledge of the commission of a crime or passively concealed a
felon, could be punished by prison or fine.
6. At C/L an accessory could not be tried or convicted until after the
principals were convicted.
B. Modern Statutes: have eliminated almost all C/L distinctions and
provide all parties to the crime are charged with the substantive crime and
allow for equal punishment for the principal and all “aiders and
abettors” (C.f. MPC §2.06; 18 USC §22).
1. The one exception is that most states punish accessories after the
fact less severely. (Contra MPC §2.06).
a. However, note that even in states that have eliminated
accessory after the fact or misprision, one who takes active steps
to prevent the arrest or prosecution of a criminal may be liable
under other statutes. E.g. harboring a criminal, destroying
evidence, tampering with witnesses, volunteering false
information (MPC §242.3); aiding by safeguarding proceeds of a
crime or converting them (§242.4); or compounding of a crime
by accepting money on exchange for refraining from reporting
the crime (§242.5).
2. They also allow an accessory to be tried and convicted even if the
principal has not been apprehended (although NC, MD, RI, and
TN retain the C/L rule).
C. The Accessorial Act:
1. Community of Purpose - State v. Ochoa, A riot erupted as a sheriff
attempted to transport a prisoner from the JOP to the jail. The sheriff
was shot and killed although the shooter was never ID’d three people
in the crowd were convicted of “aiding and abetting” in his murder.
Two were assaulting a deputy before and after the shots were fired.
Guilty.
a. Before an accused may become liable as an aider and
abettor, he must share the criminal intent of the principal. There
must be community of purpose, partnership in the unlawful
undertaking.

b. The intent to kill, or to aid and abet in the commission
therof, may be formed at the scene of the crime, even though
the accused may have gone there without such intention. If,
with knowledge that one of their party was using or was about to
use deadly force the accused rendered aid or assistance, or
engaged in the deadly assault, he is as equally guilty as the
principal.
c. When one in a group altercation becomes aware that
one of his numbers is using deadly force, he becomes an
accessory to the use of that deadly force unless he stops his
participation except to defend himself.
2. “Mere Presence” vs. Aiding and Abetting - Gains v. State,
Williams was convicted of aiding and abetting in a bank robbery
committed by Gains because he drove the car in which they left.
Williams did not go into the bank, and there was no evidence that he
knew that Gains and the others were robbing the bank. He drove
slowly away and did not attempt to elude until one of the robbers
apparently spoke to him when a police car approached. Rev. not
guilty.
a. A mere suspicion or circumstantial evidence of
complicity will not exclude a reasonable inference of
innocence and may not support a conviction for aiding and
abetting. Mere presence at the scene of a crime is not enough
to make one guilty of aiding and abetting a friend’s crime.
(Even the mere fact of flight from the scene will not exclude
such an inference).
b. In the commission of a crime both the actor and the one
who aids and abets him are principals in the first degree and may
be charged and convicted of the crime. It is not necessary that the
aider or abettor be physically present, but he must be sufficiently
near or so situated as to aid or encourage or to render assistance
to the actual perpetrator.
3. Omissions or failure to act as aiding and abetting: in certain
instances the failure to take reasonable steps to prevent a crime,
where there is a reasonable opportunity and (legal) duty to do so,
may result in liability for the crime. For example a parent not
trying to stop an assault on his minor child. State v. Walden (NC).
4. Proximity to the Crime - State v. Tally, Judge Tally (∆ ) prevented
a warning cable from being delivered to Ross, whom Tally knew
was being followed by the Skeltons, his in-laws, who wanted to kill
him for sleeping with their sister and Mrs. Talley (another sister).

a. One who interferes with the relaying of potentially life
saving information or warning to a potential victim, is an abettor
if a homicide results.
b. To aid and abet the commission of a crime (as a C/L
principal in the 2nd degree) a person need not be physically
present, it is enough that is in a position to aid in the
commission of the crime. It is enough if he stands guard to
give warning to the perpetrators or prevent interference with their
criminal design, and it is immaterial how far away he is from the
scene of the crime, provided it gives some “promise of
protection” to the perpetrators.
3. MPC § 2.06(3) Liability for the Conduct of Another; Complicity:
Under the code attempt to aid is
A person is an accomplice of another person in the commission of an
sufficient §§ 2.06(3) & 5.01(3) offense if:
(a) with the purpose of promoting or facilitating the commission
of the offense he
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in
planning or committing it....
If actor aids but no crime is
committed, he is guilty of
5. Attempted Complicity: MPC § 5.01(3) Conduct Designed to Aid
attempting the crime. Another in Commission of a Crime.
A person who engages in conduct designed to aid another to commit
a crime which would establish his complicity under § 2.06 if the
crime were committed ... is guilty of an attempt to commit the
crime, although the crime is not committed or attempted....
6. Renunciation of Complicity: MPC §2.06(c)(i)&(ii): Unless

otherwise provided [by MPC or statute] a person is not an
accomplice in an offense committed by another person if...
(c) he terminates his complicity prior to the commission of the
offense and
(i) wholly deprives it of effectiveness in the commission of
the offense; or
(ii) gives timely warning to the law enforcement
authorities or otherwise makes proper effort to prevent
the commission of the crime.
C.f. NY PENAL CODE § 40.10(1), which has a similar defense,
conditioned on a “substantial effort to prevent” and puts the burden
on the defendant.
D. The Mens Rea for Complicity:

1. Minority Rule- Knowledge of Principal’s Intent - Mowery v.
State: Mowery was convicted of “murder without malice” as a
principal (aider and abettor) when he hit Kimmel after his friend had
hit him with a fatal blow. But he didn’t know he was already dead or
that his friend intended to kill him. NG. Rule: A person who aids
and abets the commission of a crime with knowledge of the
unlawful intent of the person committing the crime is guilty as a
principal (complicity).
2. The Majority Rule –Purpose - People v. Beeman, Beeman was
convicted as an aider and abettor in the commission of a robbery of
his sister in law after he gave information to the perpetrators which
facilitated the crime and was caught with some of the stolen goods.
He claimed he did not want the robbery to occur and was pretending
to sell the goods so he could return them. Rev. NG.
a. A person aids and abets the commission of a crime
when he, acting with
The “purpose”
requirement for mens rea i. knowledge of the unlawful purpose of the perpetrator, and
of complicity. This is also ii. the intent or purpose of committing, encouraging, or
the MPC standard.
facilitating the commission of the offense,
iii. by act or advice, aids, promotes, encourages, or instigates,
the commission of the crime.
Note: Both the MPC and modern C/L adopt the knowledge +
purpose requirement outlined above. Limiting liability to
purposeful aiders and abettors assures that only the actors with the
most culpable mens rea are punished, but knowledge alone can
sometimes help someone even if it is not the actors purpose to help.
Further, purpose can be inferred from knowledge and is very close
especially if the assistance is by omission.
3. Decoys – Wilson v. People: Wilson was convicted of

aiding and abetting Pierce in the commission of a burglary when he
set him up by helping Pierce to break in and then called the cops.
NG.
a. To be guilty as an aider and abettor, it is essential that the

defendant share in the criminal intent of the perpetrator; the
intent that the crime will actually proceed successfully must exist
in the minds of both.
b. One, who participates in a felony as a feigned accomplice,
in order to snare the other, is not criminally liable, and he need
not take an officer into his confidence to avoid the imputation of
criminal intent. See 16 CORPUS JURIS 129.

E. Criminal Facilitation: NY has a lesser included offense to aiding and
abetting which imposes liability even if the defendant does not have
purpose to further the crime, but only believes it is probable that he is
rendering aid to some one who intends to commit a Class A felony.
NYPC § 115.05.
F. Negligent Aiding and Abetting: Some jurisdictions predicate liability for
mere negligence as to the possibility that one’s actions will encourage or
facilitate a particular offense (if the commission of the offense is a
reasonably foreseeable consequence of aiding a person). See MAINE REV.
STAT. TITLE 17-A § 57(3)(A).
IX. CONSPIRACY
A. Generally: Conspiracy is an inchoate crime but is distinct from attempt and
complicity. The essence of conspiracy is the agreement between
conspirators. It is a broader net and does not require as much overt action on
the part of the conspirators. This reflects the view that two people agreeing
to commit a crime is more dangerous that one person acting alone.
B. Elements of Common Law Conspiracy: (from Verive)
1. Intent (purpose) to commit the crime, and
2. An agreement between two or more persons, and
3. An overt act evidencing that agreement. The act need not rise to the
level sufficient to constitute attempt liability – with conspiracy, mere
preparation is sufficient.
C. MPC Conspiracy § 5.03:

(1) Definition of Conspiracy. 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 them
will engage in conduct which constitutes such crime or an attempt or
solicitation to commit such crime.
D. Conspiracy and Attempt- State v. Verive -: ∆ charged with attempt to

dissuade a witness and conspiracy to dissuade a witness. He was found
guilty on both counts.
1. Because of the Identical Elements Test, conspiracy is
usually a separate and distinct crime and can be punished in
addition to attempt. Since “mere preparation” is sufficient for
conspiracy, and the conduct punished is the agreement, it is separate
form attempt

2. Identical Elements Test (from Verive): If a defendant
is charged with 2 crimes arising out of the same conduct, in order to
punish him for both – after eliminating the evidence necessary to
support one of the charges, the remaining evidence must be
sufficient to support the remaining crime. There must be separate
facts to support each crime.
3. Note: Not all states follow this doctrine (13 don’t), and
allow only punishment for one inchoate crime. The MPC also does
not permit punishment for conspiracy and another inchoate
crime. (see MPC § 1.07)
E. Conspiracy and the Underlying Crime – Callanan v. U.S.: ∆ was
convicted of conspiracy to commit armed robbery and armed robbery. He
was sentenced to consecutive terms on each count. He appealed claiming he
can not be punished for both crimes. Aff’d.
1. Rule: The danger which conspiracy generates is not
the same as the substantive crime, it is the agreement to commit the
crime that is punished. They are separate and distinct crimes and can
be punished by consecutive sentences. In some jurisdictions,
conspiracy is punished greater than the underlying crime (e.g.
conspiracy to commit a misdemeanor).
Note: the MPC limits the punishment for both the conspiracy and the
underlying crime: § 5.05 limits the sentence for conspiracy to equal to the
maximum sentence for the criminal objective. § 1.07(1)(b) provides that
a defendant may be prosecuted for both the conspiracy and the object
crime, but he may not be convicted of “more than one offense if ... one
offense consists only of conspiracy or other form of preparation....”
F. Conspiracy to Commit Unlawful Conduct Not Amounting to a Crime:

at C/L a defendant could be punished for conspiring to commit “unlawful”
acts that did not amount to a criminal violation. Most states and the MPC
reject this idea, but the US in its prosecution of Oliver North, successfully
got a charge of “conspiring to defraud the US” past the courts.
G. THE AGREEMENT:
1. Griffin v. State - ∆ was approached by two POs after
he was involved in a traffic accident. He attacked the officers and as
he did several members of the gathered crowd did too. There was no
direct evidence of a prior agreement between the defendant and the
other attackers. ∆ was convicted of conspiracy.
a. The agreement may be inferred from circumstantial
evidence. “It may be inferred, even though no actual meeting of
the parties is proved, if it is shown that two or more persons
pursued by their acts the same unlawful object, each doing a part,

so that the acts, though apparently independent, are in fact
connected.” (A “concert of action”).
2. Note - Limits on Inference from Circumstantial
Evidence:
a. The 2d Circuit had held that circumstantial evidence in a
indictment for “conspiracy with persons unknown” is
sufficient to support a charge. (Cerpeda (drug conspiracy)).
b. However, the 10th Circuit has held that affiliation alone is
not sufficient to support a conspiracy charge. (Robinson (gang
membership)).
3. Withdrawal from a Conspiracy:
a. Common Law: an actor may withdraw from a conspiracy
by:
i. Notifying his co-conspirators that he will no longer
participate in the conspiracy,
ii. By engaging in acts inconsistent with the objects of the
conspiracy.
(a) The acts or statements need not be known or actually
communicated to the co-conspirators, so long as they
are reasonably calculated to reach some of them.
(b) A defendant need not go the authorities or try to talk
the others out of the conspiracy.
(c) However, the withdrawal must be complete and in
good faith.
b. MPC Withdrawal from a Conspiracy § 5.03(6) &(7): Is
a much more stringent standard for withdrawal –
§ 5.03(6) – Withdrawal must “thwart the object of the
conspiracy”
§ 5.03(7)(c) – the defendant must advise his co-conspirators of
his abandonment, or notify law enforcement.
Note: An effective withdrawal marks the end of conspiratorial

liability for that actor from that point on (for acts done in
furtherance after his withdrawal). The defendant is still liable for
acts committed before his withdrawal, thus a withdrawal is not a
complete defense unless coupled with the statute of limitations.
4. The Mens Rea for Conspiracy:

a. Inferring Intent from Knowledge of the Conspiracy –
People v. Lauria: ∆ and three of his customers on his telephone
answerenng service were arrested for conspiracy to commit
prostitution. ∆ knew at least one was a prostitute. NG.
i. In order for there to be sufficient mens rea for conspiracy,
there must be knowledge and an intent to further the
crime. Mere knowledge is not sufficient.
ii. Intent can be Inferred from Knowledge: In some cases,
knowledge and a further fact related to the conspiracy can
support an inference of intent to further the conspiracy
(direct evidence always suffices):
(A) A Special Interest in the Criminal Activity (“a
stake in the conspiracy”): inflated charges for
services or goods; knowledge that no legitimate
purpose exists for goods or services; disproportionate
volume to any legitimate demand or a high
percentage to the total demand goes to conspiracy.
(B) Knowledge of the Aggravated Nature of the Crime
(serious felonies). Knowledge of a conspiracy to
commit a dangerous felony can by itself suffice to
infer intent to further it.
b. MPC Mens Rea: § 5.03 requires purpose to commit the
crime.
5. Special Mens Rea Problems:

a. Mistake of Law: Some states have articulated the
“corrupt motive doctrine” in conspiracy law. This means that a
mistake of the governing law (didn’t know it was illegal) would
exculpate one of a conspiracy charge, even if it would not
exculpate one of the substantive crime.
People v. Powell - ∆ s were city officials charged with
conspiring to buy supplies w/o advertising for bids. They
claimed they didn’t know it was illegal. The NY Ct. App.
reversed the convictions, saying: “ implicit in the meaning of
the word conspiracy [is] that the agreement must be entered
into with and ‘evil purpose’, as distinguished from a purpose
to do the act prohibited, in ignorance of the prohibition.”
b. The Modern Trend: Rejects the “corrupt motive”

doctrine and equates the mens rea for conspiracy with that of the
substantive crime. The MPC follows this approach and allows
for mistake of law to exculpate only where it negatives the mens
rea.

c. Conspiracy in the “Heat of Passion”: Some courts hold
that if two people join to kill in the heat of passion (committing
voluntary M/S) they can be convicted of conspiracy to murder.
The logic is that so long as they had the mens rea for the act of
the agreement, they should be guilty – provocation diminishes
culpability for the murder, but not for the conspiracy. Most states
reject this view and allow provocation to reduce the conspiracy
charge as well. (see People v. Horn (CA)).
d. Impossibilty: There are similar problems in conspiracy as
there are in attempt when the issue of a legal impossibiliy arises.
Some courts punish the conspiracy even if they would not punish
the attempt. (See State v. Moretti, (undercover officer who was
not pregnant conspired with others to get an abortion)). Others do
the opposite.
e. Unilateral Conspiracy: this theory allows a conspirator to
be punished for conspiracy even if the others never intended to
go through with the crime. (E.g. undercover cops).
6. The Incidents of Conspiracy:

a. THE PINKERTON DOCTRINE: All co-conspirators all
liable for all crimes committed by all other co-conspirators in
furtherance of the object of the conspiracy, that are
reasonably foreseeable as a necessary and probable
consequence of the conspiracy (are within its “scope”).
i. Pinkerton v. U.S.: the Pinkerton brothers were convicted of
conspiracy to defraud the IRS. Both were convicted of all the
crime committed by one brother, even though one was in jail
for most of the time.
ii. U.S. v. Diaz: ∆ became involved in a drug deal set up by
DEA. ∆ had no knowledge that one co-conspirator had a
gun. ∆ was arrested with others and b/c a gun was used the
charge was raised to conspiracy to traffic in coke with a gun.
The court upheld the convictin b/c it held that it was
foreseeable that a gun would be involved in a drug deal.
iii. State v.Stein: ∆ told a client, a known cat burglar, that a
neighbor kept large amounts of cash on hand. A year later the
client committed an armed robbery at that neighbors house,
getting in to a shoot out with police, assaulted the victims
wife and daughter, kidnapped the daughter and led cops on a
high-speed chase. NJ S. Ct. held that ∆ was liable as a
conspirator for the robbery, and the assault on the family but
not for the kidnapping or the assault on the cops. The Court
said that these were too remote from the object – the
robbery- and thus not foreseeable as a necessary and probable
consequence of the object. .
iv. Note: this doctrine greatly expands liability under
conspiracy, the co-conspirators need not even be aware of the
crimes committed in furtherance of the object to be held
liable. Absent an affirmative act of withdrawal, a
conspirators liability can extend past his actual involvement
in the agreement, and be imposed even if he was a minor
actor. This serves not only as a deterrent but also as leverage
for a prosecutor trying to turn a conspirator.
v. The MPC rejects Pinkerton’s broad liability, instead it
requires proof of an actor’s intent to further the particular
crime committed. “Liability for a substantive crime as an
accomplice cannot be predicated on the sole fact of having
been a party to a conspiracy; further inquiry must examine a
person’s real culpability....”
b. The “Hearsay Exception” to Conspiracy: The hearsay
rule against admission of evidence by one witness about what
another person said, when the probative value of the evidence
depends on the credibility of the witness, is lifted in cases of co-
conspirators. Out-of-court statements by one conspirator in
furtherance of the object may be admissible against another
co-conspirator. In essence the law has erected the fiction that
the statements of one co-conspirator are “authorized” by all the
others; thus such statements are admissible against all of them as
admissions, so long as the trial judge is satisfied by a
preponderance of the evidence that a conspiracy exists. Note,
however, this exception only applies to statements made prior to
the achievement of the central object of the conspiracy.
c. Venue and Conspiracy: Generally, a co-conspirator may
be tried where the agreement took place or where any overt act
of any co-conspirator took place. “the leverage of conspiracy lifts
[the limits of the 6th A.] from the prosecution and reduces its
protection to a phantom.” J. Jackson.
d. Conspiracy and the Statute of Limitations: Most states
hold that the S/L begins to run not from the time of the
agreement, but from the last overt act (by any conspirator) in
furtherance of the agreement.


Outline For Criminal Law

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O UTLINE FOR C RIMINAL L AW

I. JUSTIFICATIONS FOR PUNISHMENT

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5. OMISSIONS AS ACTS: Ordinarily, not doing something is not criminal

III. MENS REA – THE REQUIREMENT OF A GUILTY MIND

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Alexander’s Framework for Determining When Strict Liability is

iii. Transferred Intent – A defendant can be liable under this

2. MPC § 2.02(2) Kinds of Culpability Defined: “[Except for

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without prior authorization, with any indelible substance, knowing or recklessly

D. MISTAKE AS A DEFENSE NEGATING AN ELEMENT OF THE

2. Mistake of Law: “Ignorance of the law is no excuse.” At

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E. INTOXICATION AS A DEFENSE NEGATING AN ELEMENT OF

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NOTE: PRESUMPTIONS IN JURY INSTRUCTIONS – FRANCIS V. FRANKLIN

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B. INTENT TO KILL MURDER- PREMEDITATED MURDER: At C/L in

C. The Opportunity to Premeditate – U.S. v. Watson: ∆ was convicted of

C. VOLUNTARY MANSLAUGHTER: At C/L also called “heat of

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People v. Walker - ∆ convicted of murder when the victim started a

2. Traditional Common Law Categories of Adequate

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4. The “Cooling Off” Period:

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Ex parte Fraley: Decedent had been acquitted of murdering

SUMMARY: C/L AND MPC VOLUNTARY MANSLAUGHTER

1. Objectively insufficient time to cool.

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Cornwell’s Framework for Looking at Depraved Heart Murder:

1. How substantial was the risk disregarded? (need “gross recklessness”)

C. FELONY MURDER: A murder occurring during the commission or

b. People v. Hickman: During the pursuit of ∆ , who was unarmed,

4. Misdemeanor Manslaughter Rule: Also called the “unlawful act

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5. Second-Degree Felony Murder: Many states authorize courts, by statute

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Summary of Homicide Tables:

COMMON LAW HOMICIDE DISTINCTIONS

premeditated, then first-degree) Voluntary: Intentional killing done in the heat of

Depraved Heart (second degree)

Invloluntary: unintentional killing done recklessly

MENS REA AND HOMICIDE UNDER THE MPC

Recklessness  Yes, But only under

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“A defense of justification is the product of society’s determination that the

B. DEFENSIVE FORCE (SELF-DEFENSE):

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Perfect vs. Imperfect Self-Defense from Leidholm:

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MPC AND SELF-DEFENSE SCENARIOS:

Does the actor

Does the actor

Does the actor YES, had he

6. The Duty to Retreat: The general rule is that self-defense is measured

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