CRIMINAL LAW

Outline
I. INTRODUCTION
A. Theories of Punishment
(Punishment is what distinguishes criminal law from other types of law)
1. PURPOSES OF PUNISHMENT
a. RETRIBUTION
i. Theory:
Criminals deserves to be punished; an eye for an eye
ii. Criticism:
Intentionally inflicts pain when it cannot be shown that punishment will
promote the greater good
Cannot undo damage
Encourages revenge
Based on societys concept of vengeance, not the victims (victim could
forgive criminal, but society wont recognize that)
Cost vs. benefit (does the benefit outweigh the punishment of the crime)
REGINA v. DUDLEY & STEPHENS
Dudley and Stephens killed and ate their fellow crew member while
stranded at sea in order to survive until their rescue. Deterrence,
rehabilitation, and incapacitation were not reasons to punish because of
the rarity of such a situation, but the court punished them for retribution:
it was necessary to send a message that their conduct was wrong.
(However, they received a light sentence.)
b. DETERRENCE
Specific deterrence (discourages criminal from recidivism = a repeat
offense)
General deterrence (discourages society from committing offense)
i. Theory:
Utilitarian; serves society by making an example out of criminals
ii. Criticism:
Is only effective for rational criminals; ineffective for crimes motivated by
emotion
Improperly punishes someone to benefit others (Kants argument)
It is hard to judge how much of a punishment is necessary to deter without
over punishing
U.S. v. BERGMAN
A rabbi/philanthropist was imprisoned for Medicaid fraud. Bergman was
not dangerous, nor was he likely to commit again, but the court wanted to
set an example for general deterrence, so that other people would not
commit the same crime. (White collar crimes are the most deterrable
offenses because offenders typically calculate the risks and benefits of
their actions.)
c. REHABILITATION
i. Theory:
Attempts to fix criminals
ii. Criticism:
Spends societys resources on those who dont deserve them
Assumes criminals want or are able to be fixed
Assumes that society knows what is for criminals own good
d. INCAPACITATION

i. Theory:
Renders criminal incapable of committing another crime (imprisonment or
execution)
ii. Criticism:
Criminals are often eventually freed
Insufficient resources to always do this
Crimes can occur in prison
B. Theories of Crime
1. Determining Societys Values
Criminal laws are based on societys values
A court must determine if a law expresses the current values of society or those
of the past
BOWERS v. HARDWICK
In 1986, the Supreme Court ruled the Georgias criminalization of sodomy
was deeply rooted in the nations history and tradition, so it did not violate
due process.
LAWRENCE v. TEXAS
In 2003, the Supreme Court overturned Bowers v. Hardwick. Although the
facts were essentially the same, it recognized that societys values had
changed and that statutes could not simply be based on a certain religion or
moral standard.
2. Victimless Crime
The common moral bonds of society justify criminalizing what might otherwise
be considered a victimless crime
Because all crimes are consider offenses against society, the victims consent is
not a defense to most crimes
3. Dangers of Overcriminalizing
a. Overcharging (makes enforceability difficult; causes discriminatory enforcement)
b. Disrespect for laws
c. Misuse of law enforcement resources
d. Invasion of constitutional rights
C. Legality
1. Principle:
A person may not be punished unless his conduct was defined as
criminal before he acted
Not all harmful or immoral acts constitute a crime (only if they are specifically
prohibited by law)
2. Rationale:
Provides notice as to what is unlawful
Confines discretion of police and courts in enforcing laws and punishing
criminals
3. Constitutional support:
Prohibition against bills of attainder or ex post facto laws
Due Process clause
SHAW v. DIRECTOR OF PUBLIC PROSECUTIONS
In this British case, defendant was convicted of crimes associated with the
publication of a directory of prostituted because it was a conspiracy to corrupt
public morals. This vague charge allows the court to determine on a case-bycase basis what is criminal. This was upheld by British court, but would have
violated legality principles in the U.S.
D. Criminal Justice System
1. Felonies, Misdemeanors, Violations

a. Felonies
(punishment of more than one year in jail)
b. Misdemeanors
(punishment of less than one year in jail)
c. Violations
(punishment is a fine)
2. Malum in se vs. Malum prohibitum
a. Malum in se
(bad in itself; felony)
b. Malum prohibitum
(bad because it is prohibited; misdemeanor)
II. ELEMENTS OF CRIME
Actus Reus + Mens Rea + (Circumstances) + (Result) = Crime
A. ACTUS REUS
(physical act; criminal conduct)
The law does not punish for bad thought alone; there must be an
identifiable, voluntary criminal act
Verbal conduct (words alone) may be sufficient (eg., conspiracy, aiding and
abetting)
Both affirmative acts (positive acts) and failures to act (omissions) may
constitute the actus reus
1. POSITIVE ACTS
a. Voluntariness requirement
i. Automaton
(if defendant is acting as an automaton whose mind is not engaged at the
time of the act, there is no valid actus reus)
PEOPLE v. NEWTON
Defendant shot a police officer after being shot himself. He claimed he
was unconscious at the time his hand, in a reflexive action, pulled the
trigger. The court ruled defendant was entitled to argue to the jury that
there was no voluntary actus reus.
ii. Movement by another
(if defendant is physically moved by another, there is not actus reus)
MARTIN v. STATE
Defendant was convicted of being drunk on a public highway after
police had forcibly moved him from his house where he was intoxicated
and placed him onto the highway. The court held that because
defendant was not present on the highway due to his own voluntary
movement, he could not be punished.
iii. Rationale:
Punishment for an involuntary act does not satisfy two key purposes of
punishment: deterrence (a person acting aware cannot be deterred) and
retribution (retributivist theory assumes defendant freely chose to commit
crime)
b. MPC involuntary acts
i. Reflex or convulsion
ii. Bodily movement during unconsciousness or sleep
iii. Hypnosis or under hypnotic suggestion
iv. Bodily movement not otherwise the product of the effort or determination of
the actor, either unconscious or habitual
c. Special applications
i. Habit

d.

a.

b.
c.

d.

e.

(actions done by habit are considered voluntary)

ii. Possession
(possession is not an act unless possessor knew he had control of
the item for a sufficient amount of time to have been able to
terminate his possession)
Stretching the actus reus
By extending the period of the actus reus, an act that might otherwise be
viewed as involuntary is deemed voluntary
PEOPLE v. DECINA
Defendant who knew he was subject to epileptic attacks decided to
drive anyway. While driving, he had an attack and killed another.
Defendant committed a voluntary act when he decided to drive with his
condition.
2. OMISSIONS
General Rule:
There is no legal duty to help someone facing harm; therefore,
failure to act only constitutes an actus reus when there is some
specific duty to act
POPE v. STATE
Defendant witnessed the beating of a child and failed to come to the
childs aid, so the child died. Court ruled that defendants reasons for not
interfering were irrelevant; she had no specific duty to come to the childs
aid.
NEW BEDFORD RAPE CASE
A woman was gang-raped in front of a group of people at a bar, but the
bystanders were not held liable.
KITTY GENOVESE CASE
A woman was stabbed to death while several people watched and failed to
help. After twenty minutes, someone called police, but woman died.
Spectators failure to assist was not criminal.
JONES v. UNITED STATES
Ten month-old baby, unrelated to defendant, died while it and its mother
were living in defendants house. Defendant had means to care for it but
was not held liable for babys death because he had no legal duty to care
for child.
Rationale:
Although there may be a moral obligation to act, there is no legal duty
Support:
Supports American tradition of freedom
Focuses attention on perpetrator of crime rather than bystander
Avoids risk to Good Samaritans
Criticism:
No moral difference between failing to help someone facing certain harm and
actively causing harm
May embolden violators to commit crimes because they knew people are not
required to assist victims
Exceptions:
i. Statutory duty
(a criminal or civil statue may create a duty to act)
ii. Status relationship

(relationship must be voluntary; eg., parent to minor, spouse to spouse,

master to apprentice, ship master to crew and passengers, innkeeper to
drunk customers, not sibling to sibling or child to parent)
PEOPLE v. BEARDSLEY
A woman, not Beardsleys wife (they were having an affair), took a fatal
dose of morphine while staying with Beardsley, but he did not call for
help. Beardsley was not held liable because it was an informal
relationship, so he had no legal duty of care.
iii. Contractual agreement
(eg., babysitter, lifeguard, nursing home caretaker)
iv. Voluntary assumption of care of another
PEOPLE v. OLIVER
Defendant brought an intoxicated man home with her from a bar and
gave him a spoon to help ingest heroin. Man passed out, but
defendant returned to bar without attempting to help him. She later
found him still unconscious but failed to help him. Defendant guilty of
involuntary manslaughter because she voluntarily took a person unable
to prevent harm to himself away from the public and into her private
care.
v. Putting victim in peril
(once a person puts victim in peril, a duty to help is triggered)
JONES v. STATE
Defendants rape of a 12 year-old girl triggered a duty for him to save
her when she jumped into a creek to kill herself
B. MENS REA
(culpable mental state)
Acts alone do not constitute a criminal offense, even if they cause harm
There is no crime without a vicious will = mental state required for crime
REGINA v. CUNNINGHAM
Defendant almost asphyxiated a woman when he tore a gas meter off a wall
adjoining her building. Defendant did not know that gas seeped through
womans wall. Statute required defendant to act maliciously. Although
defendant acted wickedly, to act maliciously he had to have foreseen that his
acts might cause harm and nevertheless engage in them.
REGINA v. FAULKNER
Sailor went to a ships hold to steal rum. He lit a match to see what he was
doing, but accidentally caused the rum and ship to catch fire. Defendant could
only be found guilty of maliciously setting fire is he considered the risk of a fire
occurring and disregarded it.
1. Rationale:
Purposes of punishment rely heavily on the premise that the more a
defendant intends to commit a wrongful act, the more that person
should be punished
2. MPC Levels:
a. PURPOSELY
Defendants goal or aim is to engage in particular conduct or achieve certain
results
Common law terminology: intent to, with specific intent, intentionally
b. KNOWINGLY
Defendant is practically certain that his conduct will cause a certain result
Common law terminology: intentionally, willfully
UNITED STATES v. JEWELL

Drug defendant did not look in a secret compartment so he could claim

that he did not know he was transporting marijuana. Court found
constructive knowledge based upon deliberate ignorance.
Jewell Doctrine: unless he deliberately avoided knowledge of a
crime, defendant is not responsible for it
c. RECKLESSLY
Defendant consciously disregards a substantial and unjustifiable risk that his
conduct will have a certain result
This is the minimum level for most crimes; if the statute is silent on
mens rea, assume recklessness
Common law terminology: general intent, maliciously
d. NEGLIGENTLY
Defendant is unaware that his conduct bears a certain risk, but a reasonable
person would be aware of this risk
Common law terminology: without due care, negligently
e. STRICT LIABILITY
(No mens rea)
Offense does not require defendant to subjectively realize the risk that he is
taking; defendant is guilty, even if he honestly and reasonably believed his
conduct was proper
Prosecution does not need to show mens rea
Includes public welfare offenses (concerning public health and safety) and
common law morality offenses (statutory rape, bigamy, adultery)
Usually reserved for minor, regulatory offenses with minimal punishments
Rationale:
Deters risky behavior
Recognizes that publics welfare is paramount
Eases prosecution burden
Criticism:
Can defeat purposes of punishment (if defendant did not realize he was
doing anything wrong, no point to deterrence, etc.)
UNITED STATES v. DOTTERWEICH
Defendant, president of a pharmaceutical company, was convicted of
shipping misbranded and adulterated products. Although there was not
evidence that defendant knew or should have known that the products
had been misbranded, he was held criminally responsible because the
crime did not require mens rea.
MORISSETTE v. UNITED STATES
Defendant charged with stealing government bomb casings, be he
claimed he did not know they still belonged to the government he
thought they had been abandoned. Statute concerning this does not
specify mens rea, but court ruled that the mere omission of intent in a
statute does not make the crime strict liability. (For common law offenses,
the assumption is against strict liabililty.)
UNITED STATES v. STAPLES
Defendant charged with possessing an unregistered firearm, but he did
not realize that his gun had the characteristics necessary to make is
subject to registration requirements. Statute did not explicitly have a
mens rea requirement, but Supreme Court ruled it could not be strict
liability because violation of the statute had a very harsh penalty (ten
years imprisonment).
STATE v. GUMINGA

Defendant owned a restaurant where a waitress was caught serving

alcohol to a minor. Statute imposed liability on owner even though he was
not directly involved in the offense and there was no proof that he knew of
the practices. (This is called vicarious liability.) On review, the conviction
was overturned because it bore to harsh of a penalty to be strict liability.
3. Material Elements
(elements that relate directly to the harm sought to be prevented by law)
If an element has a mens rea requirement assigned to it, it is a material element
Nonmaterial elements are also called jurisdictional elements
4. MISTAKE OF FACT
a. General Rule:
Ignorance or mistake of fact precludes criminal liability if the
mistake means the defendant lacked a mental state essential to the
crime charged
b. Rationale:
Mistake of fact is a claim that defendant did not have mens rea necessary for
all material elements of the crime and thus cannot be held liable
REGINA v. PRINCE
Defendant convicted of taking an unmarried girl under 16 years old out of the
possession and against the will of her father. Defendant believed girl was 18
when she was really 14. Court found material elements to be (1) taking the
girl (2) without her fathers permission. Since it did not find defendants
knowledge of girls age to be material, mistake of fact defense did not hold.
(Mistake of age is generally not a defense.)
WHITE v. STATE
Defendant convicted of abandoning his pregnant wife. Defendant claimed he
did not know his wife was pregnant. Court determined the material element
of the statute to be that he abandoned his wife, so it was irrelevant that he
did not know she was pregnant.
UNITED STATES v. FEOLA
Defendants attempted to rob men who turned out to be undercover FBI
agents. Defendants were charged with assaulting a federal officer.
Defendants claim that they did not know their victims were federal officers
failed because it would have been wrong to assault anyone.
5. MISTAKE OF LAW
a. General Rule:
Mistake or ignorance of law is generally not a defense
b. Rationale:
The law presumes everyone knows its requirements because the laws are
based on societys standards for moral conduct
c. Exceptions:
i. Defendant misled by official authority (reliance on an invalid statute
misreading of law is insufficient; reliance on judicial decision; reliance on
administrative order; reliance on official interpretation)
ii. Because of ignorance or mistake of law, defendant lacks mens rea
for crime
(mistake is a defense if the mistake negates the mens rea necessary;
disagreement with law is insufficient)
REGINA v. SMITH
Defendant was charged with damaging another persons property, but
he mistakenly believed that under the law the property he destroyed
belonged to him. Because defendant had to know that the property

belonged to someone else, his mistake as to the legal status was a

defense.
LIPAROTA v. UNITED STATES
Defendant charged with unauthorized use of food stamps, but he did
not know that the way he was acquiring food stamps was illegal.
Because the statute requires that the defendant know that his
acquisition is illegal, mistake of law is a defense.
CHEEK v. UNITED STATES
Defendant convicted of willfully failing to file federal taxes, but
defendant claimed that he honestly believed he was not required to
pay taxes. Mistake of law defense holds because he did not willfully
violate statute. Although defendant was permitted to use mistake of
law as a defense, he was convicted because court determined that he
was too well-informed to truly think that he did not have to pay taxes;
court believed his actions to be a protest and not a mistake. (Knowing
legal obligations and choosing not to fulfill them does not qualify as
mistake of law.)
iii. Lack of reasonable notice of the law
(due process requires that defendant have sufficient notice as to what acts
constitute a violation of the law; this is a very narrow exception)
LAMBERT v. CALIFORNIA
Defendant was charged with failing to register as a convicted person as
required upon arrival in Los Angeles. She had no notice of this statute,
so the court allowed her mistake of law exception.
Lambert exception requires:
Defendants conduct is wholly passive
There was no actual notice of the law
The violation involves a regulatory offense
iv. Cultural Defenses
(defendants are expected to live according to the standards of conduct of
the community in which they live, so cultural defenses are rarely allowed,
but they may mitigate defendants punishment)
III. HOMICIDE
A. Definition:
Unlawful killing of another human being
1. ACTUS REUS: Killing
(Year-and-a-day rule: under common law, death must occur within a year and a day
of defendants acts to constitute killing; most jurisdictions have abandoned this
requirement, but it remains in force in federal courts)
2. MENS REA
a. Malice aforethought = murder
b. Gross negligence = manslaughter
3. CIRCUMSTANCE: another human being
a. Fetus (not a human being unless laws specifically state otherwise)
b. Suicide (killing of oneself; assisted suicide may be homicide)
c. Infanticide (killing a young child)
d. Patricide (killing ones parents)
B. LEVELS OF HOMICIDE
1. MURDER
(all murders require proof of malice)
a. FIRST-DEGREE MURDER
(PREMEDITATION)

i. Requires cool, deliberate thought

ii. Some courts equate premeditation with purposeful (Carroll
approach); other courts require proof of purposeful deadly conduct
with a preconceived design (Anderson approach)
iii. There is no time too short (in between shots is sufficient)
iv. Different approaches:
(1)Carroll approach
Rule: Any cool, deliberate thought, even if formed in a matter of
seconds, is sufficient to demonstrate premeditation. (As long as the
prosecution proves that the defendant acted with the conscious purpose to
kill the victim.)
Facts: In Carroll, defendant killed his wife, who had been abusing their
children and was upset that the defendant would be leaving home
because of work. After a protracted argument, the couple went to bed.
After thinking for five minutes about what his wife had done to their
children, defendant reached for the gun that his wife kept at the head of
their bed for protection. He shot his wife twice in the back of the head,
wrapped up her body, and dumped it in a desolate place.
(2)Anderson approach
Rule: Premeditation requires preexisting reflection as
demonstrated by two of the following three types of evidence:
(a) Planning activity
(b)Motive
(c) Manner of killing
(Most courts have not adopted this strict approach because it narrowly
constrains the prosecutions ability to prove meditation.)
Facts: In Anderson, the defendant stabbed a 10-year-old girl to death. The
victim was found hidden in her home, nude, and stabbed over 60 times.
Defendant had been staying at the home, and was drinking and lied to
family members as they tried to learn the whereabouts of the missing
victim. Defendants first-degree murder conviction was reversed due to
insufficient evidence of premeditation.
(3)MPC approach
Rule: All intentional killings are murder. The facts underlying the
killings are used as aggravating and mitigating circumstances for
sentencing.
v. Defenses:
(1)DIMINISHED CAPACITY
Defendant may argue incapacity to premeditate because of a
psychological disorder.
(2)INTOXICATION
Generally not a defense, but if defendant is so intoxicated that he cannot
form the cool, deliberate thoughts necessary for premeditation,
intoxication may preclude finding of mens rea.
b. SECOND-DEGREE MURDER
(MALICE)
i. Intent to kill
ii. Intent to cause serious bodily harm
iii. Gross recklessness
Gross recklessness vs. recklessness
Consider magnitude of risk vs. social utility of conduct

Magnitude of Risk (foreseeability of harm to victim, seriousness of

harm)
Social Utility of Conduct (cost of avoidance, conducts benefit to
society)
COMMONWEALTH v. MALONE
Defendant shoots and kills the victim during a game of Russian Roulette.
Defendant found guilty of murder, even if he never intended to kill or
seriously injure the victim. It is sufficient if the defendant knows his
conduct involved an unacceptably high risk of death.
iv. Catchall category: if there is insufficient evidence of premeditation
(for first-degree murder) or provocation (for manslaughter), but
defendant knowingly killed, second-degree murder is the default
v. Synonymous phrases: malice, extreme indifference to human life, reckless
and wanton disregard, gross deviation from the standard of conduct,
depraved indifference, depraved and malignant heart
2. MANSLAUGHTER
a. VOLUNTARY MANSLAUGHTER
(HEAT OF PASSION/PROVOCATION)
i. Provocation
(1)Actual heat of passion
(defendant must actually be provoked)
(2)Legally adequate provocation
(limited to those situations in which a reasonable person might have been
similarly provoked)
Common law:
Defendant could only claim provocation under circumstances
(eg., extreme assault or battery on defendant or close relative, mutual
combat, discovery of spouses adultery)
Words alone are insufficient
GIROUARD v. STATE
Defendant stabbed his wife in response to her insults regarding
his sexual ability, but the court deemed this insufficient
provocation to justify stabbing.
Modern law:
Objective (reasonable person with no particularized
characteristics)
Semiobjective (reasonable person with defendants
physical characteristics, including gender and age)
Subjective (reasonable person in defendants situation as
he believes it to be); MPC standard
(3)Absence of cooling time
(too much time cannot have elapsed between the time of provocation and
the act of killing; if too much time has passed, prosecution may argue that
defendants reaction was premeditated, constituting first-degree murder)
Common law:
Judges could decide not to give provocation jury instruction is
the time between provocation and act of killing were so long
that the defendant was not likely to be in the heat of passion
Modern law:
Jury must determine whether sufficient cooling time has
elapsed
Jurors may consider:

Long-smoldering reaction
Rekindling doctrine
ii. Extreme emotional distress
(1)MPC approach:
A killing which would otherwise constitute murder is reduced to
manslaughter if it is committed under the influence of extreme
mental or emotional disturbance for which there is a
reasonable explanation or excuse
(2)Differences between traditional provocation doctrine and MPC
approach:
(a) No specific act of provocation required
(b)More subjective viewpoint
(c) No cooling time limitation
(d)Words alone may be sufficient
(e) Diminished capacity may be considered
(f) Mistaken victim
PEOPLE v. CASASSA
Defendant was devastated because the victim rejected his romantic
advances, and he reacted by breaking into her apartment, eavesdropping
on her, and lay naked in her bed. On his final visit, defendant reacted to
her rejection of him by stabbing and drowning victim. Defendant claimed
he acted under extreme emotional distress.
Traditional heat of passion would not have allowed provocation defense,
but under the MPC, judge considered extreme emotional distress.
(Nevertheless, court found no reasonable basis for killing, even in
defendants emotional state. Even the MPC test is not purely subjective.)
iii. Imperfect self-defense
b. INVOLUNTARY MANSLAUGHTER
(NEGLIGENT HOMICIDE)
i. Gross negligence
(Ordinary negligence is usually insufficient for criminal homicide)
Gross negligence (as opposed to ordinary negligence):
(1)Defendant was not aware of the risk taken
(2)Risk greatly outweighed the social utility of the conduct
COMMONWEALTH v. WELANSKY
Defendant owned a nightclub that had inadequate emergency exits
and was generally crowded and unsafe. One night, when the owner
was in the hospital, a bar boy accidentally started a fire by lighting a
match near from table decorations. The fire spread, trapping and
killing many patrons and employees. Defendant was convicted of
involuntary manslaughter. The court held that, even though
defendant was apparently unaware of the risk at the club and was
not even present when the fire occurred, he was grossly negligent in
its operation.
Contributory negligence is not a defense
DICKERSON v. STATE
Defendant was speeding is his car when he smashed into victims
car, killing him. Even though victim had been negligent as to
where he parked his car, the defendant was guilty of
manslaughter.
Objective vs. subjective

Objective focuses on what the reasonable person in defendants

situation would do, but defendants situation generally does not
include ones religion (eg., Christian Scientists use of prayer instead
of medicine to cure illness could be considered grossly negligent)
ii. Recklessness
Consider gross vs. ordinary recklessness (if gross, it constitutes seconddegree murder)
C. FELONY-MURDER
1. Doctrine: If a defendant causes a death during the commission of a felony,
the prosecution need not prove that the defendant acted with an intent to
kill. (Defendant is guilty of constructive murder because the intent to commit
the felony substitutes the intent to kill or cause grievous bodily harm.)
Felon is strictly liable for all killings committed personally or by an
accomplice in the course of the felony.
2. Does not require mens rea
3. Alternative approach to prove murder
4. MPC rejects this rule
PEOPLE v. STAMP
Defendant robbed victim at gunpoint. Shortly after defendant fled, victim
died of a heart attack. Even though there was no evidence that defendant
wanted victim to die, defendant was still responsible for murder.
REGINA v. SERNE
Defendant was charged with murder of his son because defendant set fire to
his home to collect insurance money on it and his son. Court instructed the
jury that defendant was guilty of murder if he acted with either knowledge
that his actions would kill (malice) or an intent to commit a felony (felonymurder). (Nevertheless, jury found him not guilty.)
5. Requirements:
a. Felony must be inherently dangerous to human life
i. Dangerous in the abstract
(consider the felony in the abstract; otherwise it will be always considered
dangerous because death occurred)
ii. Dangerous as committed
(some courts examine case-specific circumstances, which makes it more
likely to find the felony to be dangerous)
PEOPLE v. PHILLIPS
Defendant, a chiropractor, faced murder charges after defrauding a childs
parents into paying him for her treatment instead of opting for surgery.
Felony-murder was offered to jury, but this was reversed on appeal
because the underlying felony, grand theft, is not inherently dangerous to
human life.
b. Merger doctrine: Felony must be independent from the killing
(without this, all felonies involving a death would be murder)
i. Consider purpose of felony
(if purpose is other than killing or gravely harming victim, it is independent)
BARKRM automatically qualify for first-degree murder:
Burglary
Arson
Robbery
Kidnapping
Rape
Mayhem

ii. Consider danger of felony:

(1)Least dangerous felonies
(ineligible because of inherently dangerous limitation)
(2)Most dangerous felonies
(ineligible because of independent felony)
c. Death must occur in furtherance of and during the course of the felony
i. Who did the killing?
(1)Agency theory
Under this theory, only deaths directly caused by defendant or
cofelon qualify for prosecution
(California is an agency jurisdiction)
STATE v. CANOLA
Defendant faced felony-murder charges for the death of his co-felon
who was shot by the owner of the store they were robbing. Applying
this theory, defendant was not guilty because the death was caused by
the victim.
(2)Proximate Cause theory
Under this theory, defendant may be liable for any death resulting
from the unlawful activity. (eg., shield cases when felon uses victim
as a shield from police fire)
ii. Who was killed?
(1)In most jurisdictions, a felon is not responsible for the death of
his co-felon.
(the killing is viewed as justifiable, does not seem to further felony, and
co-felon assumed the risk of death by participating in crime)
iii. When did it occur?
(1)Must occur during the course of the felony
(2)Typically, felony commences when defendants begin preparation for the
crime, and it ends when defendants are in custody or reach temporary
safety.
iv. Did it further the felony?
(1)Unanticipated acts by a cof-elon which are not in furtherance of
the common purpose of the felony do not qualify for felonymurder.
6. Rationale:
a. Deterrence (deters felons from killing, even accidentally)
b. Retribution (vindicates societys loss when a felony results in death)
c. Incapacitation (eases the prosecutions burden in cases where defendant may
have killed intentionally but claims the deaths were accidental)
7. Criticism:
a. A person cannot, by definition, be deterred from committing an accidental act
b. A harsher punishment against a defendant who accidentally killed is an unfair
liability to an unlucky defendant
c. Does not reflect defendants actual culpability since he did not intend to kill
d. Prosecutors shouldnt need such assistance because usually when a death
occurs in the course of a felony there is evidence of defendants reckless intent
8. Vicarious Liability doctrine (Provocative Act doctrine)
Under vicarious liability, a felon bears responsibility for any killing
attributable to the intentional acts of his associates committed with
conscious disregard for life and likely to result in death.
(Cofelons provocative acts create the malice sufficient for murder.)
TAYLOR v. SUPERIOR COURT

Defendant was the getaway driver in a robbery. While his co-felons were
robbing a store, one of the victims shot one of the co-felons. Under agency
theory, defendant would not be liable for co-felons death, but under vicarious
liability he was convicted of murder.
D. MISDEMEANOR-MANSLAUGHTER
(Unlawful Act doctrine)
1. Just as the felony-murder rule substitutes for proving intent in a murder
case, the misdemeanor-manslaughter rule may be used as a substitute for
proving the mens rea for an involuntary manslaughter charge.
E. CAUSATION
(Only considered in the context of those crimes requiring a specific result but where
the result is too distant from defendants acts to punish him for that crime specifically)
1. Actual Cause
(but-for cause)
a. Was defendant a link in the chain of events that led to the harmful result?
(Would the harmful event not have occurred but for defendants acts?)
PEOPLE v. ACOSTA
Defendant led police on a high-speed chase, during which two helicopters
crashed. Defendant liable for the deaths of the helicopter passengers. A
finding of proximate cause was appropriate. (But, the court reversed the
lower court ruling on a different basis finding insufficient evidence of malice
to support a conviction for murder).
2. Proximate Cause
(legal cause)
a. Was defendants act a sufficiently direct cause of harm to warrant imposing
criminal liability?
i. Concurrent causes
ii. Acceleration theory
b. Was the harm foreseeable?
PEOPLE v. ARZON
Defendant set fire on fifth floor of a building. A separate fire broke out on
the second floor of the building, which led to the death of a firefighter.
Court found both but-for and proximate cause.
PEOPLE v. KIBBE
Defendants robbed a drunken victim and left him half-naked by the road
in sub-freezing temperatures. A passing truck struck and killed victim.
Court found both but-for and proximate cause. (Defendant did not need to
fore see exactly how harm would occur, he only needed to foresee that
harm could occur.)
i. Vulnerability of victim
(defendant takes his victim as he finds him, so unusual vulnerabilities or
weaknesses are no excuse)
ii. Transferred intent
(if defendant intends to hurt one person but instead harms another, his intent
to injure is sufficient)
iii. Additional harm
(if defendant intends to harm one victim but hurts another more seriously, he
is responsible for the more serious harm caused)
c. Intervening Acts
i. Did an intervening act occur to break the chain of causation?
(1)Was the intervening act foreseeable?
(2)What type of intervening act occurred?

(a) Acts of nature

(do not usually break the chain)
(b)Medical maltreatment
(do not usually break the chain, unless intentional or grossly
incompetent)
(c) Intervening disease
(do not usually break the chain)
(d)Acts of the victim
(i) Victims voluntary acts
(can break the chain, even if opportunity for harm was given by
defendant)
(ii) Victims involuntary acts
(do not usually break the chain)
(iii)
Victims escape attempts
(do not usually break the chain because they are seen as
involuntary)
(e) Additional Perpetrators
(some courts hold both perpetrators liable; other courts hold first
perpetrator for attempt and the second for the completed crime)
3. MPC Approach
a. Defendant is only liable for crime he had mens rea to commit
b. MPC is not very relevant for this because most states do not have statutory
requirements for causation
IV. Anticipatory Offenses
A. ATTEMPT
1. General Rule:
Mens Rea + Actus Reus Result
2. Mens Rea: purposeful or specific intent
(knowledge is insufficient, but it can be used to show purpose)
3. Actus Reus: substantial step toward completion of crime
a. First step
(insufficient to establish attempt)
b. Last step
(this is sufficient to establish attempt, but waiting until the last step may be too
late)
c. Dangerous Proximity
i. How many steps did defendant take?
ii. How much more action was necessary to complete?
iii. Why didnt the harm occur?
iv. How much harm would have resulted?
v. How serious was the prospective harm?
PEOPLE v. RIZZO
Defendant drove around to find a payroll clerk to rob. He was armed and
prepared to commit robbery, but police apprehended him before he could
find his prospective victim. Defendant was not guilty because his acts were
mere preparation.
d. Unequivocality test
(res ipsa loquitor = the facts speak for themselves)
(examines whether defendants actions, viewed in the abstract, demonstrate an
unequivocal intent to commit a crime; jury is told to consider if there is any
lawful explanation for defendants acts)
e. MPC Approach

(jury instructions: substantial step strongly corrobative of defendants intent)

4. Punishment
a. May be charged up to a felony
b. Punishment for attempt usually carries a lighter punishment than the
crime itself
i. defendants acts caused less harm to society than the actual crime would
have
ii. encourages criminals to abandon efforts before completing crime
c. MPC makes attempt punishable to the same extent as the completed
crime (because defendant had the mens rea of the crime), except for crimes
punishable by death or life imprisonment
d. Bad thoughts are insufficient; defendant must have taken a substantial
step toward completion of the crime
5. Most states do not recognize attempted felony-murder
6. Defenses to Attempt:
a. ABANDONMENT
(defendant who repents and deserts efforts to commit a crime may try to raise
this defense)
i. MPC recognizes abandonment if all these (CAV) occur:
(1)Complete renunciation
(defendant must not be motivated by a decision to postpone criminal
conduct until a more advantageous time or to transfer the criminal effort
to another prospective victim)
(2)Abandon efforts before the crime is completed
(3)Voluntary renunciation
(fear of getting caught cannot motivate defendant; someone else cannot
prevent defendant from committing crime; defendant must have a sincere
change of heart)
b. IMPOSSIBILITY
(arises when a defendant has done everything possible to commit a crime but
unexpected factual or legal circumstances prevent the crime from occurring)
i. General rule:
Legal impossibility is a defense, factual impossibility is not
ii. Legal impossibility:
(possible defense)
(1)Defendant consciously tries to violate the law but there is no law
prohibiting his behavior
(a) Defendant performs an abortion that she thinks is illegal, but it turns
out that abortion is illegal in that jurisdiction
(b)Defendant believes the tax deduction he is taking is illegal, but the
deduction is actually legal
(2)Defendants conduct might otherwise violate the law, but he makes a
mistake as to the legal status of some aspect of his conduct
(a) Defendant received unstolen property that he thinks is stolen
(b)Defendant shoots at a corpse that he believes to be a live person
iii. Factual impossibility:
(no defense)
(1)had the circumstances been as defendant believed them to be, would
there have been a crime?
(2)pickpocket trying to pick an empty pocket
(3)shooting a defective weapon that does not fire
(4)shooting at a victims home when victim is not present

iv. Labels of factual or legal can be manipulated, depending on whether or

not the court wants to allow defendant a defense or not
PEOPLE v. JAFFE
Defendant purchases property she believes to be stolen, but it actually is not.
Defendant can use the impossibility defense.
PEOPLE v. DLUGASH
Defendant was charged with attempted murder for shooting a victim who
was probably already dead. Even though it is not attempted murder to try to
kill a dead person (ie., legal impossibility), the court deemed it an issue of
factual impossibility because it was factually impossible to kill someone who
is already dead. Thus, defendant was charged with attempt.
UNITED STATES v. BERRIGAN
Defendant, an imprisoned Vietnam War resister, was convicted of attempting
to send letters without the wardens knowledge, which was contrary to prison
regulations. However, the warden knew of the letters and allowed him to
send them. Conviction of defendant was reversed due to the legal
impossibility of attempting to do that which is not a crime is not a crime.
V. ACCOMPLICE LIABILITY
(all people who assist in the commission of a crime should be held accountable,
to some degree, for that offense)
A. AIDER & ABETTOR
1. Participants in crime:
a. Principal in the first degree
(actual perpetrator of the crime)
b. Principal in the second degree
(person who aided and abetted the principal by being present or nearby)
c. Accessory before the fact
(person who helped prepare for the crime)
d. Accessory after the fact
(person who, knowing that a felony had been committed, received, relieved,
comforted, or assisted the felon; not considered an aider and abettor)
2. Modern approach
a. Same punishment for all except accessory after the fact
b. Accessory after the fact is less culpable
c. Principals need not be convicted
3. Actus Reus: act of encouragement
4. Mens Rea: purpose to have crime succeed
(lowered to negligence for negligent crimes)
5. Consider when determining purpose:
a. Connection between principal and accomplice
b. Stake in the venture
6. Mere presence is insufficient
7. Words alone can be sufficient, if the purpose is to encourage
8. Willful blindness is sufficient
HICKS v. UNITED STATES
Defendant was accused of murder for allegedly encouraging his friend to kill
the victim. Defendant claimed he was not trying to encourage the murder.
Court reversed his conviction because, to be guilty of aiding and abetting,
defendant must speak or act with purpose to encourage or assist another in
the commission of a crime. Focus must be on defendants purpose when
uttering the words, not on the effect of defendants conduct on the principal.
9. Liability for all reasonably foreseeable offenses

(accomplice is liable for all reasonably foreseeable crimes that result from his acts
or support)
PEOPLE v. LUPARELLO
Defendant asked friends to obtain information about his former lover at any
cost. The friends ended up killing a person in an effort to obtain the
information, so defendant was convicted of murder because the killing was
reasonably foreseeable given defendants request.
B. CONSPIRACY
(agreement by two or more persons to commit a crime, whether or not the crime is
successful)
1. Elements
a. Actus Reus: agreement
i. Express or implied agreement
ii. Agreement with unknown parties
(all parties to conspiracy do not need to know each other; it is sufficient for
defendant to know he is agreeing with others to commit a crime)
b. Mens Rea: intent to agree; purpose to commit act
PEOPLE v. LAURIA
Defendant ran a telephone answering service used by prostitutes. Defendant
knew prostitutes used his service for their business, but court ruled that
knowledge alone was insufficient to establish the mens rea for conspiracy.
Prosecutors needed to prove defendant had a stake in the venture or
otherwise had purpose to facilitate crime.
c. Overt Act requirement
(some jurisdictions require an act by an of the conspirators to set the conspiracy
in motion)
2. Consequences
a. Substantive Consequences
i. Conspiracy is a separate crime
(if two people agree to commit a crime and then commit it, they are each
guilty of conspiracy as well as the substantive crime)
ii. Conspiracy punishes preparatory conduct
(mere act of agreeing to commit a crime is sufficient for conspiracy;
conspiracy is an inchoate crime that punishes at the earliest stage of
planning)
iii. Conspirators have co-conspirator liability (Pinkerton liability)
(once a defendant joins a conspiracy, he is responsible for all acts of the coconspirators done within the scope of the conspiracy, even if there is not
evidence of accomplice liability; not retroactive, so defendant cannot be
charged with crimes committed before he joined conspiracy)
b. Procedural Consequences
i. Conspiracy charge joins multiple defendants for trial
c. Duration of Conspiracy
(conspiracy remains in effect until it has been abandoned on until its objective
have been achieved)
i. Withdrawal/renunciation
(single conspirator can limit his liability)
(1)Common law does not allow abandonment or renunciation; once a person
joins a conspiracy, he has no defenses
(2)Abandonment
(a) Defendant must tell his co-conspirators of his abandonment, or tell law
enforcement of the conspiracy and his participation in it

(b)This does not undo liability for previous involvement in conspiracy

(3)Renunciation
(a) Defendant must thwart the conspiracy (just attempting to stop it is
insufficient)
(b)This allows defendant to avoid conspiracy charge altogether
(c) This does not undo liability for previously committed substantive crimes
d. Scope of Conspiracy
(When defendant is involved in a conspiracy of which he is just a small part he
can be liable for all conspiracies if there is a common venture or
interdependence, even if he doesnt know all of his co-conspirators)
i. Wheel conspiracy
(1)For members of a wheel responsible for each others acts, there
must be a rim enclosing the individual spokes involved in a crime
through the same middleman.
KOTTEAKOS v. UNITED STATES
32 defendants used the same broker to obtain false loans, but other than
that broker, many defendants had no individual connection. Court found
them to be involved in individual conspiracies, not one large conspiracy.
ANDERSON v. SUPERIOR COURT
Illegal abortionist paid 17 people to refer pregnant women to him. Court
ruled that all people were involved in one conspiracy, even though they
didnt necessarily know each other, because they all shared the common
interest of keeping the abortionist in business.
ii. Chain conspiracy
(1)Although members of a chain conspiracy may not know one
another, they know there must be someone at each of the various
stages for the scheme to work.
(2)Courts consider whether there is some evidence that the groups
of each level know the overall scope of the conspiracy and benefit
from it
UNITED STATES v. BRUNO
88 people charged with one conspiracy to import, sell, and possess
narcotics. Court found that there was one conspiracy because each
defendant knew he was working along a chain of individuals engaged in a
scheme to distribute drugs.
iii. Mixed conspiracy
(conspiracy can have elements of both a wheel and a chain conspiracy)
e. Parties
(some people may not qualify as parties to a conspiracy)
i. Gebardi Rule
(cant have a conspiracy when one of the two people involved is the
victim, designed to be protected by law)
ii. Wharton Rule
(if a crime, by definition, requires two or more people, conspiracy
cannot be added to a conviction for the substantive crime)
iii. Bilateral Approach
(if co-conspirators have no intent to commit crime, they cannot be
held for conspiracy. Actual danger is irrelevant; only mens rea
matters)
iv. Unilateral (MPC) Approach
(if a person thinks he is involved in a conspiracy, but he actually is
not, he can be held liable)

VI. DEFENSES
A. JUSTIFICATION
(even though defendant caused some harm, given the particular situation facing him,
he made the socially correct decisions)
1. SELF-DEFENSE
a. Rationale:
When someones life is threatened, he may take necessary steps to protect his
life; if someone must die, it is better that it be the aggressor who has
demonstrated antisocial conduct
b. Common Law:
i. HONEST AND REASONABLE FEAR
(1)Consider defendants:
(a) Physical attributes
(b)Relevant knowledge of attacker
(c) Prior experiences
(2)Actors belief need not be correct
(Imperfect self-defense: if defendant has an honest but unreasonable
belief in the need to kill, or he uses more force than is reasonably
necessary, defendants crime is mitigated to voluntary or involuntary,
depending on jurisdiction manslaughter)
(3)MPC applies a subjective standard
PEOPLE v. GOETZ
Goets shot four youths he thought were trying to assault him on a New
York subway. He claimed he acted in self-defense, but none of the youths
displayed a weapon. Defendant claimed his fear of the youths was based
upon race, mannerism, and his past history of being mugged. Court
upheld a semiobjective standard, instructing the court to consider a
reasonable person in defendants situation.
(4)BATTERED SPOUSE SYNDROME
(a) Nature of syndrome:
Runs in cycles of minor abuse, serious attacks, and requests of
forgiveness
(b)Not always accepted as justification, but the relationship can at least be
considered when determining how a reasonable person would have
reacted
STATE v. KELLY
Defendant killed her husband with a pair of scissors and unsuccessfully
sought to offer evidence of the battered spouse syndrome to support
her self-defense claim. However, the appellate court held that such
evidence should have been admitted because the husband had
repeatedly abused his wife and, at the time of the killing, was
approaching her in a threatening manner. Evidence of battered spouse
syndrome could have helped jury decide whether the wife honestly and
reasonably feared for her life.
(5)Other syndromes may be presented as attempted justification
ii. IMMINENT AND UNLAWFUL THREAT
(1)Rationale:
Killing is only justified when the defendant has not other alternative than
to use force against another
(2)Common Law Approach:
(a) Objective standard
(b)No preemptive strikes

STATE v. SCHROEDER
A 19-year old inmate stabbed his older cellmate, who had threatened
to make a punk out of him by morning. The court found that there
was not evidence of imminent threat, so defendant was not entitled to
use self-defense.
(c) Possible exception for battered spouse (spouse may believe threat is
imminent without an overt threat at that moment)
STATE v. NORMAN
Battered wife killed her husband in her sleep, but she was denied
the self-defense instruction because the court applied the objective
standard instead of making an exception for her.
(3)MPC Approach:
(a) Subjective standard
(b)Relaxes imminency requirement; it is sufficient if actor
reasonably believe that the use of defensive force as
immediately necessary (does not require an actual assault)
(4)Defendant may never defend himself against lawful (eg., police)
force
iii. PROPORTIONAL RESPONSE (NO EXCESSIVE FORCE)
(1)A person may only use force that is necessary
(2)Deadly force may only be used in response to a threat of death or serious
bodily harm
(3)Force may only be used against attacker
(4)Generally, defendant is not responsible for accidental injury of an innocent
third party if defendant acted in self-defense, unless defendant was
negligent or reckless
(5)MPC Approach:
(a) Allows deadly force for threat of death, serious bodily harm,
kidnapping, or sexual intercourse compelled by force or threat
(b)Expands defense to include threats of crimes that could easily
escalate into threat of deadly force or serious bodily harm
iv. DUTY TO RETREAT
(1)Rationale:
Self-defense should only be used when absolutely necessary
(2)Only arises when defendant uses deadly force
(3)If defendant cannot safely retreat, there is not duty to do so
(4)Castle Rule: defendant has not duty to retreat when attacked in
his own home
v. NO INITIAL AGGRESSION
(1)Rationale:
Force is only justified when defendant is forced to defend himself; he
cannot generate the necessity to kill
UNITED STATES v. PETERSON
Defendant saw Keitt and friends stripping his car. Defendant went into his
house, pulled out a gun, and threatened Keitt and friends. Keitt wielded a
wrench, so defendant shot him. Defendant claimed self-defense, but it
was refused him because he was the initial aggressor when he threatened
with the gun.
(2)A person may be an instigator without being the initial aggressor; initial
aggressor is the first person to escalate a confrontation by use or
threatened use of force; a person is not an aggressor is his conduct, albeit
provocative, is lawful

(3)Defendant who reaches safety and intentionally returns to a scene of

violence is not entitle to self-defense
(4)Initial aggressor may use non-deadly force
(5)Initial aggressor may reclaim right to use self-defense by communicating
his intent to withdraw from confrontation and sincerely attempting to do
so
(6)MPC Approach:
(a) Initial aggressor only loses the privilege of self-defense is he
provokes the use of force with the purpose of causing death or
serious bodily harm
2. DEFENSE OF OTHERS, PROPERTY, LAW ENFORCEMENT
a. DEFENSE OF ANOTHER
i. Common Law Approaches:
(1)Reasonableness standard:
(a) Majority approach
(b)Allows the use of force when defendant reasonably believes
such force is necessary to defend a third person from an
imminent, unlawful attack
(2)Alter ego rule:
(a) Minority approach
(b)Requires that the defendant stand in the shoes of the person
he was defending
(c) Thus, defense of another is only authorized is the person being
defended had the right to use defensive force
ii. MPC Approach:
(1)Allows defense of another when the defendant believes the use of
force necessary (subjective)
(2)However, the defendant is responsible for any recklessness or
negligence
b. DEFENSE OF PROPERTY
i. Common Law Approach:
(1)(Early law allowed deadly force to prevent felony, even just to
protect property)
(2)Deadly force may only be used to protect human life, not property
(3)However, if there was also threat to a person (eg., resident
present when his house is burglarized), deadly force may be used
PEOPLE v. CEBALLOS
Defendant set up spring gun in his garage to protect his property. When
two unarmed youths broke into the garage, the sprig gun shot one in the
face. Defendant was charged with assault with a deadly weapon. Court
denied defendants claim of defense of property and person. Because
defendant was not present at the time of the break-in, he could not claim
self-defense, and court ruled that deadly force may not be used solely to
protect property.
ii. MPC Approach:
(1)Deadly force is only allowed in certain situations when:
(a) A person is being dispossessed of his dwelling
(b)An intruder is committing a felony against the defendants
property (eg., burglary or arson) and has used deadly force
against the defendant

(c) An attempt to use force, other than deadly force, to prevent a

felony would expose defendant to substantial risk of serious
bodily harm
c. LAW ENFORCEMENT
i. Apprehending Misdemeanants
(1)(both common law and MPC)
(2)Law enforcement may use only nondeadly force
(3)But if criminal threatens the life of the arresting officer, the officer
may act in self-defense
ii. Apprehending Felons
(1)Old common law allowed law enforcement to use deadly force to
prevent the escape of an unarmed suspected felon (until Tennessee
v. Garner)
TENNESSEE v. GARNER
Police responding to a residential burglary saw a young man fleeing
unarmed from the house. When the young man failed to respond to a
command to halt, an officer shot and killed him. The court held that the
use of force was not justified because the suspect was unarmed.
(2)Now common law:
(a) Evidence that the felon is armed
(b)Evidence that the felon just committed a crime involving
violence
(3)MPC Approach:
(a) Restricts use of extreme force to felony arrests
(b)Allows a law enforcement defense only when:
(i) Defendant is authorized to act as a police officer or is
assisting people whom he believes are authorized to do so
(ii) There is no substantial risk of injury to innocent bystanders
(iii)
Offender posed a substantial risk of death or serious
bodily harm
3. NECESSITY
(choice of lesser of two evils)
a. Rationale:
If defendant is faced with a choice of evils, and he chooses the one least harmful
to society, he is not deserving of punishment
b. Courts are reluctant to apply the necessity defense to intentional homicides
i. Majority approach:
No necessity defense in intentional homicide cases
ii. Minority approach:
Taking fewer lives to save more lives
iii. MPC approach:
Allows use of a necessity defense in homicide cases as long as a lesser
number of lives is lost to save greater number of lives
c. Economic necessity alone is insufficient
d. If a defendant is forced by forces of nature to commit a criminal act, necessity
(not duress) is the proper defense
e. Common Law Elements:
i. Choice of evils
(1)Choice is ordinarily between immediate physical harm and committing a
crime
ii. No apparent legal alternatives

(1)Necessity defense is a last resort; if there is a lawful alternative, defendant

must select it
iii. Immediate threat
(1)If threat is in the future, defendant has time to find an alternative
iv. Chose lesser harm
(1)Most important element
(2)Objective standard; from societys point of view, defendant must pick the
lesser evil
v. Not self-created
(1)Defendant cannot create necessity and then use necessity defense to
violate law
vi. No contrary legislation
(1)If there has already been a legislative judgment that a particular necessity
does not outweigh societys support for a certain law, defendant may not
claim necessity
f. MPC Approach:
i. Broader than common law:
(1)No imminency requirement
(a) Imminency is merely a factor to be considered when determining if
there was a lawful alternative
(2)No absolute prohibition on self-created necessity
(a) Necessity may apply to self-created situations, but defendant may be
prosecuted for negligent offenses because he was negligent in creating
the situation (eg., defendant with necessity defense to arson may be
charged with criminal mischief for his negligent acts)
(3)May be applied in homicide prosecutions
(a) While most common law jurisdictions do not allow the necessity
defense in homicide situations, MPC does not put such limitations on
the doctrine
PEOPLE v. UNGER
Defendant was threatened by other inmates with rape and death, but he did not
seek the help of prison authorities because he feared retaliation. Instead,
defendant escaped. Authorities apprehended him two days later. Defendant
was entitled to necessity instruction (because it was before the Bailey case).
UNITED STATES v. BAILEY
Defendants escaped from jail and attempted to use a necessity defense
because of the dangerous conditions they faced in prison. However, after their
escape, they continued to evade the law, so they were not given necessity
defense.
In order for necessity to apply to escaped inmates, they must
surrender to authorities as soon as they reach safety.
B. EXCUSE
1. DURESS
a. Another persons use of force or threat of force compelled defendant to commit
a crime
b. Only another human being can cause duress
c. Necessity vs. Duress
(Justification vs. Excuse)
i. Necessity justifies a defendants actions because the defendant made the
right choice given the choice of evils facing him
ii. Duress excuses a defendants behavior because the threats by another
person deprived the defendant of a fair opportunity to exercise free will

d. Rationale:
Relieves a defendant of liability if he was forced to commit a crime because he
acted without a fair opportunity to exercise free will and therefore is not
deserving of punishment (purposes of punishment would not be met)
e. Common Law Elements:
i. Threat of death or serious bodily harm
(MPC: Threat of unlawful force)
(1)MPC enacted a sliding standard: the greater the crime, the more serious
the threat must be
STATE v. TOSCANO
A chiropractor received calls and notes with general threats of injury
against him and his wife if he did not help in a scheme to submit
fraudulent insurance forms. Under common law the threats may not
have been specific enough to the necessary threat of death or serious
bodily harm necessary for duress, but under the MPC code, defendant
was allowed duress defense.
ii. Imminent threat
(MPC: Not a requirement)
UNITED STATES v. CONTENTO-PACHON
Drug dealers threatened a Colombian taxi driver and his family if he did
not smuggle cocaine. The court relaxed the imminency requirement and
held that defendant could claim a duress defense because he had not
reasonable avenue of escape. This approach is similar to the MPC view of
imminency.
UNITED STATES v. FLEMING
An army officer was court-martialed for collaborating with the enemy.
Defendant claimed that the enemy threatened to send him on a death
march if he did not collaborate. Because if was not clear when he would
start the march or that the march would lead to death, defendant was not
entitled to assert the duress defense.
iii. Against defendant or a close friend or relative
(MPC: Against any person)
iv. Creating such fear that a reasonable person would yield
v. Defendant did not put himself in situation
(MPC: Defendant did not recklessly create situation)
vi. Not available for homicide
(MPC: Available for homicide)
f. Economic duress or threat to reputation are not acceptable for duress defense
g. Court never justifies the killing of an innocent, even if a person is under extreme
duress and forced to kill; we dont get to choose whose life is more valuable
h. Imperfect duress:
i. In some jurisdictions, duress can be used to mitigate a homicide from murder
to voluntary manslaughter
ii. Rationale:
Defendant who kills under duress is acting under extreme emotional distress
i. Courts are divided on whether duress is a defense to felony-murder
2. INSANITY
a. Mental disorder which provides a full defense to a criminal charge
b. May preclude defendant from being tried or executed for an offense
c. To determine existence of mental defect:
i. Clear symptoms
ii. History of mental problems

d.

e.

f.
g.
h.

i.

iii. Medical diagnosis

iv. Sincerity of case
v. Number of similar cases (not many people would qualify)
vi. Did not bring upon self
vii.Controllability
viii. Stigma (and other policy concerns)
Competency
i. Insanity considers mental state at time of crime, but competency consider
mental state at time of trial
ii. Defendant must be able to:
(1)Consult with lawyer
(2)Understand proceedings
iii. Incompetency ruling results in:
(1)Defendants commitment to a mental facility until it is determined whether
he will become competent to stand trial
(2)If defendant is unlikely to become competent, criminal prosecution is
dropped and civil commitment is pursued
Rationale (for Insanity):
Punishing an insane person does not fulfill purposes of punishment (except
incapacitation and rehabilitation, which are addressed by institutionalizing
defendant)
Very difficult and rare for defendant to win with an insanity defense
Affirmative defense (burden of proof on defendant; defendant is presume sane
because otherwise all prosecutors would have to prove sanity as well as guilt)
Common Law: MNaghten Rule
i. Defendant must be presumed sane
ii. Defendant must prove:
(1)At the time of the act
(2)He had disease or disorder of the mind
(3)Such that he did not know:
(a) Nature and quality of the act; or
(eg., defendant thinks he is slicing a melon, but he is actually slicing
head)
(b)That the act was wrong
(result of mental defect, not a result of mistake of law)
STATE v. CRENSHAW
Defendant killed his wife on their honeymoon. He claimed he did so
because she had been unfaithful and his Moscovite religious faith
prescribed death as the penalty for adultery. However, defendant
knew that society would find the killing wrong because he took
actions to hide the killing and escape detection. Even though his
personal morality sanctioned the killing, defendant was not legally
insane because he knew that his actions were legally and morally
wrong, according to society.
MPC Standard:
i. Defendant must be presumed sane
ii. Defendant must prove
(1)At the time of the act
(2)He has disease or disorder of the mind
(3)Such that he lacked substantial capacity to:
(a) Appreciate wrongfulness of conduct (cognitive); or
(b)To conform conduct (volitional)

OR
(4)Deific Command
OR
(5)Irresistible Impulse Test
(defendant is legally insane if, due to a mental disease or defect, he would
have been unable to stop himself from committing crime, even if there had
been a policeman at his elbow at the time)
UNITED STATES v. LYONS
Rejects irresistible impulse test, deeming all impulses resistible.
Otherwise, people could abuse this defense. Court ruled that a truly
insane person would fail other parts of insanity test, so this part is
unnecessary.
j. MPC relaxed common law guidelines; requires appreciation of wrongfulness
beyond common laws knowledge requirement
k. MNaghten favors prosecution; MPC favors defendant
3. DIMINISHED CAPACITY
a. Partially excuses crime; it is a mitigation (defendant could be charged with
lesser crime)
b. Controversial defense which has been abandoned by many jurisdictions
c. Rationale:
Claims defendant was suffering from a condition which prevented him from
forming the mens rea for crime committed
d. Insanity vs. Diminished Capacity:
i. If defendant, for whatever reason (eg., does not have a medically recognized
mental disease/defect, or court determined he had sufficient knowledge and
control capacity regarding the crime), cannot claim insanity, he can try
diminished capacity
e. Brawner Approach:
i. Only allows diminished capacity to decrease specific intent to
general intent
ii. There must be a lesser crime to hold defendant responsible for
f. Wilcox Approach:
i. Does not accept diminished capacity
g. MPC Approach:
i. Allows diminished capacity for any crime
ii. For general intent crimes, diminished capacity would reduce charge
to no crime
4. INTOXICATION
a. Rationale:
Defendant cannot have formed mens rea for crime
b. Generally, intoxication evidence is not considered relevant unless it is of such
and extremely high degree that it could produce a complete prostration of the
faculties
c. Courts are reluctant to allow defense because intoxication is common, so it
would open the doors
d. Intoxication analysis:
i. Was defendant intoxicated?
ii. Was intoxication voluntary or involuntary?
iii. Did defendant commit a specific or a general intent crime?
e. Involuntary intoxication
i. Complete defense if it causes defendant to commit a crime he would not
have otherwise committed

ii. May also cause legal insanity

iii. Elements:
(1)Unwitting
(defendant was unaware that he was ingesting alcohol or drug)
(2)Coerced
(defendant was forced to ingest alcohol or drug)
(3)Pathological
(alcohol or medication produced an unexpected grossly excessive effect)
(Note: only applies if defendant has not warning as to the possible effect
and its effects were unpredictably extreme in that case; if defendant
voluntarily ingests an illegal drug but does not realize how drastic its
impact will be on him, intoxication is still voluntary)
f. Voluntary intoxication
i. Defense for a specific intent crime to bring it down to a general intent crime
(not permitted for a general intent crime like drunk driving)
ii. Specific vs. general intent
(1)Specific intent:
(a) Requires a purposeful mens rea
(b)If defendant was intoxicated, he can argue inability to form mens rea,
so he is guilty, if at all, of a lesser offense
ROBERTS v. PEOPLE
Defendant was charged with assault with intent to murder, but he
claimed that he was too drunk at the time to form that intent. Court
ruled that voluntary intoxication could be used as a defense to a crime
that requires a specific intent to cause a particular result.
(2)General intent:
(a) Crimes that require very little thinking or planning
(b)Voluntary intoxication is not a defense
PEOPLE v. HOOD
Defendant was charged with assault with a deadly weapon. Because
assault does not require a sophisticated intent, the court denied
voluntary intoxication as a defense.
5. ENTRAPMENT
a. Defendant may be excused of criminal behavior because government unfairly
induced him to commit crime
b. Rationale:
Purposes of punishment do not apply because defendant was induced to commit
crime
c. Affirmative defense (burden on defense)
d. Elements:
i. Inducement by government official or informant
ii. Possible standards:
(1)Predisposition standard (subjective standard)
(a) Defendant was not predisposed to commit crime
UNITED STATES v. RUSSELL
When defendant had the willingness and readiness to break the law,
the mere fact that a government agent provided a favorable
opportunity is not entrapment (because defendant was predisposed to
commit crime).
(b)Exception when outrageous government conduct created the crime
from beginning to end
(2)Government inducement (objective standard)

(a) Governments conduct would have induced a law-abiding

person to commit crime
PEOPLE v. BARRAZA
Defendant was charged with selling heroin to undercover narcotics
agents. While defendant was in a detox center, agents used a female
decoy to pressure him into making sale. Decoy made constant
requests to get him to succumb. Given the conduct of the officer, could
held that an entrapment defense was allowed because the
governments conduct would have induced a law-abiding person to
commit a crime.
(b)California standard
(3)MPC Standard:
(a) Court decides based on objective standard (because jury may
disapprove of government tactics)
VII. RAPE
A. ACTUS REUS: Sex without consent by force, threat, or when incapacitated
B. Defendants honest mistake of consent used to be an acceptable defense, but now the
standard is objective: would a reasonable person have known that there was not
consent
C. Deceit does not qualify for rape if victim consented unless victim did not realize sex
was occurring (eg., doctor says he is inserting an instrument but actually inserts
himself)