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Outline Depot: Common law vs. MPC, tables of when liable vs. not liable.

Crim Law Outline

30 states have adopted MPC, but not California.
Special verdict: jury finds facts but defers verdict to judge.

Actus reus

Mens rea

Omission to Act

Common Law
Potential exception if not
last ingredient in offense

MPC
-There must be at least one
voluntary act of D which is
physically capable.
-Includes: habit, possession,
seizures (Decina: had
seizure while driving,
convicted.)
-Does Not Include: reflex or
convulsion, hypnosis,
sleepwalking

Crim neg /= civil neg. Use

crim neg unless specified
otherwise.
There must be duty to
impose act via law.

Dudley v. Stephens (eat boy on boat)

A. Deterrance argument (punish to prevent greater evil) fails because would not
deter death with more death.
B. Retributive argument (punish because morally guilty) fails because
alternative would be that 4 people died. Preclude punishments for
unsuccessful attempts b/c D did not successfully commit wicked act.
C. Consent is not defnse to murder.
D. Holding: Yes, murder.
E. Law: No Necessity defense exists for murder. Dolinko does not find any of
the arguments for punishment persuasive, however.
F. Policy: Absolute divorce of law from morality would be of fatal consequence.
G. Hypos: Trolley problem (can switch trolley to alternate track and save 3
lives); Surgeon problem (can kill 1 person for his organs to save 4 people)
Basic Requirements for Criminal Liability
I. Actus Reus: Culpable Conduct
A. Can be results oriented.
B. Requirement of Voluntary Action
1. Martin v. State: P convicted of public drunkenness when carried out by
police. Holding: Involuntary action does not satisfy actus reus!
a. Law: criminal law depends on voluntary acts, and here a
voluntary appearance was presupposed when in fact P was involuntarily
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Martin:
Involuntary
action is
defense

taken out. (Drunkenness is not indicative of involuntary actions;

involuntary acts are limited in crim law to spasms, sleepwalking, etc.)
b. MPC: Act = bodily movement. Conduct is criminal if includes
bodily act. Body movement that is not product of actor is not voluntary.
So under MPC, Martin would be convicted.
d. Does not include violations (A has blackout and runs stop sign
while driving, still liable for motor vehicle violation because MPC 2.01
does not apply to violations.)
e. Policy for not punishing involuntary acts: no utilitarian
deterrence benefit for future act; no retributive arg for involuntary acts.
c. Hypo: Martin threatened into street by father? Still voluntarily
went into street.
d. OSullivan v. Fisher: Police ordered drunk person into street and
then arrested him for public drunkenness. Conviction affirmed.
e. People v. Lowe: possession of meth in jail was involuntary b/c
brought into jail
f. Dolinko: Elements of public drunkenness include (i) being
drunk, (ii) public, and (iii) boisterous. Voluntary in just one element is
sufficient for voluntary status. Court should have required that all
elements be involuntary for involuntary defense to be successful.

2. People v. Newton
a. Factual ambiguity: was Newton already injured when he shot
Officer Frey?
b. Not guilty = guilt not proven beyond reasonable doubt
c. Holding: Unconsciousness can be used as homicide defense.
(Otherwise there is prejudicial error. Should open possibility of not
guilty.)
d. MPC: Where not self-induced as by voluntary intoxication,
unconsciousness is defense to homicide.
Newton:
e. Rationale: People whose involuntary movements threaten
unconsciousne
others do not present problem of correction.
ss is defense
f. Voluntary Action must be proved by P; Involuntary Action is aff
defense and must be proved by D. So D will want to be charged
under Voluntary Action to minimize chance of conviction.
g. Habit = voluntary. Hypnosis =/ voluntary.
h. People v. Decina: Decina was culpably negligent when he
started driving a car and created a risk he shouldnt have. As a
result of that risk, people were killed. His knowledge of selfs
epilepsy = voluntary, reckless driving and manslaughter.
i. Hypo: Drinking at bar and fought with police, claims
unconsciousness due to alcohol? Nointoxication is not defense
to homicide.
j. Proximate Causation: sufficiently, direct result of your actions.
In Martin, creating mere opportunity =/ Decinas direct cause .

k. Retributive arg: involuntary act happens to people; it is not

something that people do.
l. Duress is another excuse, separate from involuntary act.
Examples:
1) Seizure while driving: voluntary act to drive, knowing have eplipsey
2) But if took necessary precautions, then seizure was not negligent and can mount
involuntary defense
3) Voluntarily taking drugs is not excuse.
4) D dragged into post office and voluntarily commits crime.
5) Dragging D involuntarily into street, happens to be drunk
6) Unconscious while shooting police involuntary movement
7) Mother asleep while killing child involuntary (somnambulism)
Under MPC, hypnotism and habitual acts are involuntary.
II. Omissions
A. Jones v. United States
a. Law: Situations where failure to act is breach of duty: (i) statute
imposes duty of care, (ii) special relationship to another, (iii) assumed
contractual duty to care for another, (iv) voluntarily assumed care for
another and secluded helpless person to prevent others from rendering
aid, (v) create harm then have legal duty of care.
b. Holding: Jones did not have contract with mother to take care of baby.
Jury was not instructed as to needing to find duty of care; jury error.
c. Mere thoughts are not considered omissions.
B. Pope v. State
a. Law: Pope convicted of child abuse: court said Pope did not have
supervision duty over child. Pope also convicted of misprision of
felony. Maryland says no crime because would impose too broad of
duty. Common law says this is a crime.
i. Misprison of felony, under federal law, is only a crime when
its active.
b. Holding: Evidence is insufficient to meet requirement for duty of care.
Court is not saying that Pope is not required to take care of child; court
is saying that proven facts are insufficient.
c. Commission by Omission crime is causing something by failure to
act.
d. Hypo: bystander at poolside watches child drown without liability or
duty of care.
e. Rationale for No Liabilty Due to Omission: (i) draw line for amount of
peril required before liable, and (ii) protection of personal liberty to be
free from interference in life (ex: see crashed bystander but do not
want to be bothered to call 911)
f. Vermont Rule: specific situations in which shall give reasonable
assistance unless that assistance is provided by others, to extent can
give aid without harming oneself
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C. J. Kleinig, Good Samaritanism

III. Mens Rea
A. Regina v. Cunningham: D convicted of having old lady next door ingest gas.
a. Broad mens rea: blameworthy, morally bad state of mind. This
doctrine is inferior to statutes, and is outdated. Narrow mens rea:
mental state required by particular crime; knowledge of existing
circumstances (recklessness); purpose to injure someone, etc.
b. Law: Malice = (i) intent to do harm that was done, (ii) recklessness as
to whether such harm should occur or not; (iii) knowledge of risk of
harm and recklessness in taking that risk. Malice is not ill will.
c. Application: (i) must know gas will harm someone, or (ii) simply
maliciously cause someone to ingest gas without knowledge of
imminent harm. D convicted b/c had wicked mind to release gas.
d. Malice = (i) actual intent to cause the harm that was done, or (ii)
forseeing harm. Does this mean foresee ingesting of gas, or of
harm caused? Dolinko says ambiguious.
e. Common law is messy with terminology, while MPC distinguishes
specific intent = (i) with some additional intention; (ii) actual
knowledge of some attendant circumstance of crime like bulgarly
against general intent, which is actus reus performed with any intent.
f. Ex: theft, bulgarly, and receiving stolen property are all specific intent
crimes. But should D intend all elements of each specific crime?
g. Hypo: Assisted suicide is intent to commit that crime.
h. Cunningham statute: unlawfully or maliciously administer any poison
so as to endanger persons life, or inflict upon person any grievious
bodily harm endangering their life. Dolinko says does malicious
apply to all parts, or just administer? Ambiguious.
i. (i) [factors that relate to jurisdiction] + (ii) [MPCs material elements
which includes negative factors] are used to burden prosecution. But in
practice, only material elements(elements which when combined with
law results in crime) are used. (Material elements can also be listed in
aff defenses to burden D.)
j. Social Harm = conduct element (harmful result not necessary; offense
is complete regardless of harm) + result elements (offensive result
defined by law) + attendant circumstances
k. Relevant Material Elements of Cunningham Statute: (i) Conduct:
administer poison, or cause poison to be administed, or causing person
to take poison. (ii) Result: endangering victims life, or inflicting
grieveious bodily harm on victim.
l. MPC Malice = (i) intending harm, or (ii) forseeing harm and taking
action regardless of risk. (i) corresponds to purpose, while (ii)
corresponds to reckless.
m. So analyzing Cunningham statute under MPC, either Purpose or
Reckless combined with (i) or (ii) would satisfy definition of Malice.

n. MPC Reckless: consciously disregarding substantial and

unjustified risk. Disregarding it is gross deviation from standard
of conduct that reasonable person in that situation would observe.
o. MPC presumption: mens rea applies to all elements, unless contrary
purpose plainly appears (like strict liability of sexual conduct with
persons under 10, where no knowledge is required).
MPC Purpose: (i) conscious object to engage in conduct of that nature or to cause such a
result and (ii) he is aware, or believes, or hopes of such circumstnaces. Subjective desire
for element.
MPC Knowing: (i) aware that his conduct is of that nature [Attendant Circumstance], (ii)
practically certain that his conduct will cause such a result [Result Aspect]. Subjective
awareness element will occur.
MPC Reckless: (i) disregards sub and unjus risk, disregard is gross deviation from
standard of conduct that law-abiding person would observe in actors situation.
Subjective awareness that element will occur and objective deviation from lawful
standard.
Negligent: when he should be aware of sub and unjus conduct but isnt, and that failure to
perceive risk is a gross deviation from standard of care a reasonable person would
observe in Ds situation. MPC does not differentiate between gross negligence and mere
negligence. Reasonable person determined from Learned Hand. Subjective / Objective
lack of deviation from lawful standard.
Higher levels of culpability prove existence of lower levels (Purpose satisfies reckless).
If no culpability mentioned, then assumed level is reckless. Negligence is disfavored
because no conscious culpability of culpability is possible. (Ex: doctor killed patient
negligently is convicted only of manslaughter.) Purpose and Knowledge is subjective,
while Negligence is objective. Reckless is both subjective and objective b/c self
disregards risk from reasonable person standard.
If only one mens rea is listed in MPC, it applies to all elements
p. Subjective depends on persons actual state of mind. Objective
depends on failure to live up to fixed standard of behavior.
q. New Mexico Rule (MPC): only gross negligence is punished
criminally, b/c such crimes should reflect mental state worthy of that
moral condemnation.
r. Policy for Not Punishing For Mere Thoughts: provability, value
indidivual freedom, morally wrong to punish people for lack of acts.
B. Regina v. Faulkner: set fire to ship accidently with lit match.
a. Malicious = intentionl and willful = recklessly. If burning ship never
crossed Faulkers mind, then not malicious. D is not criminally
5

C.

D.

E.

F.
G.

H.

I.

J.

responsible for every result that occurred as part of his felony, when it
was not probable consequence of his act. Intent must apply to each
element. Malice requires at least recklessness.
State v. Hazelwood: D spilled 11 million gallons of oil.
a. Ordinary negligence is sufficiently equal to criminal negliegence, a
high degree of negligence, when conduct is something that society can
reasonably deter. [Higher standard is not necessary to protect Ds
rights.]
Circumstance element / attendant circumstances: identity of victim like
federal officer, that element is outside mens rea of D. Can only apply
knowledge, belief, or hope for that attendant circumstance and that is enough
for mens rea.
Santillanes: criminal negligence requires gross deviation from standard of
care, not civil standard. Stabbed nephew resultsin conviction of negligent
child endangerment.
Transferred Intent: A intends to kill X but actually kills Y; his intent is
transferred.
Bulgarly Example: Bulgarly = (i) knowingly enter unlawfully, (ii) with
unlawful intent to stay, (iii) when building is dwelling, (iv) with intent to
commit crime therein. This last condition is an additional condition that
applies ot mental state, outside of the 4 stipulated by MPC. Mere intent (in
this case a specific intent) is sufficient to qualify for bulgarly.
a. Does knowingly apply to dwelling? Ambiguious.
Recklesness v. Knowledge
1. United States v. Jewell: D deliberately avoided positive knowledge of
marijuana in his car.
a. Wilfull blindness: ignorance is result of conscious purpose to
avoid learning the truth.
b. Holding: jury does not have to infer positive knowledge; libale
if D acted with awareness of high probability of fact in
question, unless he actually isnt aware. Willful blindness
satisifies liability for negligence. May also satisfy liability for
knowledge, if took deliberate actions to avoid learning the
truth.
c. Rationale: requirement of positive knowledge would make
deliberate ignorance a defense.
d. Test: ignorance was solely a result of conscious purpose to
avoid learning the truth.
Strict Liability
a. United States v. Balint
b. United States v. Dotterweich
c. Morissette v. United States
d. Staples v. United States
e. State v. Guminga
f. Regina v. City of Sault Ste. Marie
Mistake of Law
6

a. People v. Marrero
b. Check v. United States
c. United States v. Intentional Minerals
d. Liparota v. United States
e. United States v. Ansaldi
f. United States v. Overholt
g. Lambert v. California
K. 4 levels of culpability, according to MPC.
L. Mistake defense.
IV. Affirmative Defenses
A. Adds additional requirements for successful conviction.
B. Spectrum
1. Excuse Defenses: unfair to hold people responsible (duress, insanity)
2. Justification: actually the best thing to do (self-defense)
Homicide Offenses
I. Intended Killings
A. Premeditation and Deliberation
1. Commonwealth v. Carroll (Pennsylvania): killed wife out of rage
a. Murder = malice aforethought, intent to kill. Express malice =
deliberate intent to take life of creature, no provocation required.
b. Rule: premeditation = intent. No time is too short. First degree
murder is premed or intentional killing. Dolinko says premed is unsatisfying split of 1st
and 2nd degree murder.
c. MPC does not divide murder into degrees.
2. State v. Guthrie
a. Rule: premed /= intent. Premed requires D to contemplate
intent to kill; there must b e some period that allows cooling off and reflection period,
where D considered and weighed decision to kill. No particular time limit specified, but
there is no such thing as instanteous premed. If spontaneous and nonreflective, then 2nd
degree. (Cooling time does not allow rekindling allowed). If there is cooling time, then
provocation is inadequate as matter of law.
b. Policy: Deliberate killer is more dangerous than impulsive killer.
c. Premed = (i) planning activity, (ii) motive, (iii) evidence that
manner of killing was so particular that D must have intentionally killed according to a
preconceived design. All 3 must be satisfied for premed and thus 1st degree murder.
d. Dolinko says (iii) is unclearpoison is preconceived, while gun
is unplanned?
e. Evidence of whats done after a killing is not evidence of
premed.
f. Concurrence with Anderson: no sufficient evidence of premed
2nd degree.
g. If apply Gutherie to Carroll: in Carroll (i) and (iii) are not
fulfilled; only (ii) is. So does not satisfy premed.

h. Many states distinguish 1st and 2nd degree murder not based on
premed solely, but on other factors which may or may not include premed.
B. Provocation
1. Girouard v. State [Manslaughter]: killed wife in argument.
a. Voluntary manslaughter: murder, except for defense of
provocation
b. involuntary manslaughter: criminal neg or recklessness
c. Words are not legally adequate provocation.
d. Provocation = actions calculated to inflame man and cause him
to act from passion rather than reason.
e. Application: here, wifes provocation was not adequate because
only words. Must be accompanied with conduct indicating intent ot cause harm. So here,
cannot mitigate 2nd degree to voluntary manslaughter.
f. Traditional circumstances of legally adequate provocation to
mitigate murder to manslaughter: extreme assault or battery upon D, injury or serious
abuse of Ds relative, or sudden discovery of spousal adultery.
g. Bad Defn of Provocation: reasonable person. This is bad defn
because reasonable person never kills and so cannot be used as standard to determine if
words or conduct and inflame person to murder.
h. Maj Defn: action which inlfuences reasonable person of average
disposition to act out of passion rather tha njudgemnet or reason. Dolinko says, however,
this defn is too weak because hypo: salesman kills employer out of anger. Only
manslaughter? Should be murder, no?
i. Dolinkos preferred defn of provocation: makes reasonable
person so angry that they come close tokilling.
2. Hypo: Holocaust survivor kills anti-semetic customer. Provokation is
not complete defense, only partial because it mitigates criminal punishment to
manslaughter. In Girouard, policy was to prevent domestic arguments from constantly
escalating into killings. Here, distinguish Holocaust case because anti-Semitism is not
domestic dispute.
3. Policy for Having Provokating Defnse: particular justification (what I
did was the right thing to do), AND partial excuse (human nature is fragile and people
lose contol.) One or the other can be used, but both together cover the universe of
provocation cases.
4. Mariceo Case: person thrown out of bar by bouncer, and kills another
person who resembles bouncer by mistake. Here, provocation makes sense as a partial
excuse (P was so angry).
5. State v. Turner: woman shot unfaithful boyfriend. No defense of
provocation available b/c not married. No claim to mans fidelity, so no partial
justification exists. No defense can be raised.
6. Scriva: killer is aware that victim is unrelated (had intervened in Ps
argument with D.) Here, provocation makes sense as partial excuse because the man was
so angry.
2. Maher v. People: Maher killed wifes lover.

a. evidence of perspiration upon entering saloon, hastily firing

pistol at Hunt = evidence of passion excited by provocation. Whether cheating makes
people passionate is allowable question for jury.
b. Policy Against Provocation Defense: reasonable people do not
kill, so all killers are murderes. Judges would be less willing to apply murder standards to
any killer with the existence of this provocation defense.
c. Murder to Manslaughter requires: (i) passion or heat of blood;
(ii) passion provoked by legally adequate provocation; (iii) passion emerged before lapse
of cooling time.
3. MPC Approach People v. Casassa: D killed ex-gf out of distress. EED
not found to apply in this case b/c it is a separation killing.Emotinal reaction was so
peculiar to him that it could not be considered reasonable.
a. Words can be provocation if creates/relays information that
would inflame reasonable person (like info about cheating spouse)
b. Smith (2001): instructs jury to consider any characteristic that
they think not including would be unjust. Reversed by Campland standard.
c. Campland: (i) include relevant to gravity of provocation
(ascribed to reasonable person); (ii) do not include relevant to self-control; (iii) include
age and sex. (i) and (ii) are objective, as measured by reasonable person, not D.
d. MPC subjectivizes (i), provocation: homicide committed under
influence of EED, for which there is a reasonable excuse. Such excuse = viewpoint of
actors situation, under cirucmstances which he believes them to be.
e. NY rule: same as MPC, except does not include mental
disturbance. So burden of proof is on D. Also requires absolute subjectivity in reasonable
excuse.
f. EED = (i) acted under influence of EED, and (ii) reasonable
excuse = viewpoint of person in Ds situation under circumstnaces as D believed them to
be. Objective in subjective situation. Does not include idiosyncratic moral beliefs.
g. Separation killings are not EED.
h. Include: age, sex, but not mental disorder, battered women, or
cultural background. Some states allow battered women to be defense of provkoation,
reduce murder to manslaughter.
C. Reasonable Person Requirement
II. Unintended Killings = Criminal Negligence
A. Civil v. Criminal Liability
1. Commonwealth v. Welansky: fire in nightclub with neg exists.
Involuntary manslaughter.
a. Holding: reckless disregard for patrons safety = involuntary
manslaughter. This is a case of criminal negligence, where D
should have known of risk but didnt.
b. Crim neg kind of neg that results in punishable conduct,
where person is aware they are creating risk and there is a huge
departure form how the person would behave.

c. MPC: criminal neg = gross neg, > civil neg. If consciously

aware, reckless. Should be aware, but isnt, still reckless.
d. Wanton / willful neg = crim neg.
e. Voluntary Manslaughter = killing that would have been murder
but for the defense of provkoation.or EED
f. Involuntary Manslaughter = unintentional killing.
g. Barnet: negligence = failure to exersize due care.
h. MPC: criminal neg = gross neg, > civil neg. Consciously aware
= reckless.
i. Generally, need more than ordinary neg; need: criminal neg =
(i) unreasonable risk and aware created risk, or (ii) simply by
creating very large risk. (i) is reckless consciously aware
person. (ii) is gross, or criminal negligence, where any of the
following is high: potential injury, risk created, or excuse for
creating the risk is inadequate.
i. Ex: Russian Roulette with loaded pistol out of 1000
guns = risk and reckless under MPC.
ii. MPC: Reckless = gross deviation from reasonable
person. Neg = gross deviation from law-abiding person.
MPC Voiluntary Manslaugther: murder except for EED
MPC Reckless Homicide/Manslaughter = involuntary manslaughter
MPC Neg Homicide/Manslaughther = involuntary manslaughter under neg
Traditional: involuntary manslaughter = reckless or neg
Justification for homicide is decided by trier of fact, not D.
2. Rex v. Bateman
3. State v. Barnett
4. People v. Hall: D skied and killed victim. Charged with reckless
murder. Skiing too fast is a gross deviation from standard of care for
uphill skiiers, sub and unjustifiable risk.
5. MPC: neg homicide = should have been aware but wasnt. Reckless
homicide = did know but disregarded sub, risk, which is deviation
from reasonable person.
6. Hypo: Hall was aware of risk, but still surprised. Still considered
reckless.
B. Objectivity and Individuation in Criminal Negligence
1. State v. Williams: Native American couple charged with manslaughter
for failing to take care of sick baby. Here, ordinary neg is sufficient for
manslaughter because of statute.
2. Washington: ordinary neg = failure to exercise ordinary caution
necessary to make out defense of excusable homicide. Ordinary
caution = kind of caution that man of reasonable prudence would
excise under similar conditions.
3. Washington Mens Rea: ordinary neg. Under MPC, would have been
convicted of manslaughter, not neg homicide.
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4. Arg for D: did not think doctor was absolutely necessary. Neg.
5. Arg for P: thought maybe needed doctor, but did not get doctor b/c
baby was in such poor health. Reckless.
III. Reckless Murder
A. Murder vs. Manslaughter
1. Commonwealth v. Malone: 17-year old boy shot 13-year old boy
while playing Russian poker. Holding: murder b/c gross recklessless =
malice of wicked disposition. Depraved heart murder just as bad as
second-degree murder. As culpable as if he intended ot kill.
2. Depraved Heart = unintended killing when committed recklessly and
under circumstnaces manifesting extreme indifference to the value of
human life. Also called implied malice murder in CA, depraved
heart muder in NY.
3. If Malone perceived no risk, then neg. But he is reckless because he
perceived risk. Where Hall was reckless and got manslaughter, Malone
is reckless and got 2nd degree murder because created risk in
circumstances manifesting extreme indifference to human life.
Policy: no justification for creating risk and consciously aware of
doing so.
4. Math calculation is not required; 1/1000 chance in Table of Guns is
enough to satisfy murder.
Examples of Depraved Heart Murders = 2nd Degree:
-drunk D shot dancing hotel neighbor. Even w/o intent ,created sub risk in circumstances
manifesting extreme indifference to human life.
-MD amputated 79-year-old mans leg who then died. Doctor convicted on theory of
implied maliceno intent, but was aware and created sub. Risk of death.
-D punched V who died. D convicted of murder. No intent to kill ,but sufficient evidence
to show that he knew of and disregarded risk.
-Drunk Driving: usually manslaughter b/c gross negligence, except for Fleming:
5. United States v. Fleming: D was drunk-driving and killed V. Holding:
adequate evidence for malice aforethought for 2nd degree murde,r
where malice = reckless and wanton and a gross deviation from a
reasonable standard of care, where D was aware of serious risk of
death or bodily harm. Here, Fleming was so outrageously reckless.
6. Common Law: malice = intent to inflict great bodily harm.
7. MPC: murder = rekcklessly under circumstnaces manifesting extreme
indifference to value of human life. Exception if D created
unawareness by being drunk. Intoxication is not defense, and even if
D was unaware of risk while intoxicated, he was treated as if he was
aware of risk.
8. If involuntarily drunk and didnt know when he was driving, then he
could use the defense of involuntary actus reus / conscious awareness
of risk.
Great Bodily Harm Murder: intent to inflict great bodily harm and actually kills.
Considered 2nd degree murder.
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IV. Felony Murder = (i) causing death while (ii) attempting or commiting a felony
A. Hypo: V asleep when X broke in. V had heart attack. No felony murder
because no causation.
B. Prox Cause = but-for + natural and probable consequence + forseeable
C. Take victim as you find him, even if his death is not forseeable (Stamp)
D. Sern: Ds set fire and accidently killed boy. Foreseeable death is sufficient for
murder. Murder = any act known to be dangerous and done with felony.
E. Hypo: X is guilty of causing Vs heart attack if act performed was known to
be dangerous to life. This was not the case with break-ins, and also death was
not forseeable. So Serne would not convict X.
F. Felony murder does not require negligence. Take person as you find him,
cause death is sufficient for murder.
G. Courts dislike felony-murder b/c doesnt account for mens rea.
H. Hypo: girlfriend cheats with man who has heart attack. Girlfriend convicted of
felony-murder.
I. Hypo: kills 2-year-old boy while driving stole car. Felony murder b/c car was
stolen.
J. Detterants say very small risk with huge penalty is bad policy. Retributivsts
say unfair to punish for incidental deaths. But abolishing felony-murder will
increase burden for prosection to prove mens rea when death occurs during
felony. Easier to prove felony-murder than depraved heart murder.
K. Phillips [inherently dangerous]: D malpracticed on 8-year-old with eye cancer.
Underlying felony was grand theft of $700; grand theft is not inherently
dangerous to human life. But grand theft medical fraud is inherently
dangerous to human life.
a. Test for inherently dangerous: assess felony in abstract, not as actually
committed. Policy: keep felony-murder doctrine as narrow as possible.
L. Hines [inherently dangerous]: mistook friend for turkey and shot him.
Underlying felony was posesing firearm as felon.
a. California: robbery is felony that automatically makes first-degree
murder.
b. Majority: foreseeable risk of death = dangerous felony.
c. Dissent: high probability = dangous felony. Hunting is forseeable
risk of death.
d. Ford: shooting someone in below apartment is not forseeable when
accidently discharged gun.
M. People v. Patterson (1989): furnishing cocaine is not dangous in abstract.
Everything in statute must be inherently dangerous to qualify for felonymurder.
a. Henderson: holding gun to head is not inherently dangerous b/c statute
also includes fraud and deceit which are not inherently dangerous.
b. Supreme Court: really big statutes requires split of analysis: relevant
part of statute is inherenltly dangerous if high probability, aka
depraved heart standard.

12

c. In practice, high probability = some probability because all felonies

are less than 1% risk of death.
N. People v. Hanson: (i) high probability = inherently dangerous. (ii) if by
nature cannot be commited without creating some risk of death =
inherently dangerous. Both tests work.
O. California Inherently Dangeous List includes: willful discharge at dwelling,
mingling poison with food, malicious possession of bombs .Eligible for 2nd
degree murder. 1st degree felony-murder eligible felonies includes: arson,
rape, trainwrecking.
VI. Felony Murder
A. Merger = cannot apply felony-murder if felony is too close to homicide (i.e. is
integral part of homicide or independent felonious purpose.) Felony must be
independent.
a. If states use malice aforethought for murder, then intent to commit
felony can be added to intent, GBH, and Depraved Heart for malice
aforethought.
b. Hypo: John kills Joe in brawl, but can claim provkoation defense. So
use assault with deadly intent + murder = felony murder. No
provocation defense b/c felony-murder doesnt have intent available
for negation. But then provocation would never be used since all Ps
would use felony-murder. So merge assault with deadly weapon with
murder, and then cannot use felony-murder, and then can open up for
Defense of Provocation again.
c. Ireland (1969): diminished mental capacity is defense; again cannot be
used under felony-murder.
d. NY: assault with deadly weapon /= pred. In CA, assault with deadly
weapon recognized as 2nd degree felony murder as part of common
law.
e. Wilson (1969): man killed wife with prd of bulglary. Qualifies for 1st
degree by statute.
f. People v. Madison (1971): pred = poisoning, not because felony is
integral part of homicide, but because felony had indepdently
felonious purpose.
g. Sufficient for Merger: independent felonious purpose ; integral
part of homicide.
h. People v. Burton: armed robbery qualifies for pred!
i. Court disregards integral part of homicide test, which would
not be sufficient for merger as applied, and says independent
felonious purpose makes assault with deadly weapon
sufficient for merger.
ii. Armed robbery = taking property + assault with deadly weapon
which cannot be merged. So armed robbery cannot merge.
Court avoids this by using independent felonious purpose
rule.
i. Chun is current rule: if elements of felony has assaultive aspect (a
threat of immediate violent injury, then merge.
13

i. Includes assault with deadly weapon.

ii. Armed robbery is specifically enumerated by statute, so can be
used as pred without relying on assaultive aspect.
iii. Questions of assaultive aspect only arises in2nd degree
mruders.
j. Chun facts: gunfire from one car hit victims of other car. Pred
discharging firearm in grossly neg manner. Assaultive in nature so
mergers.
i. Assaultive = threat of immediate violent injury. Any single
assaultive element is sufficient.
ii. Felony-murder rule only applies when killing is done in
furtherance of felony. (Not afterwards, not unrelated, and not
where lethal act is commited by someone resisting the felony.)
iii. People v Smith: child abuse by direct assault. Offense is of
assaultive variety, so merged.
k. People v. Henderson: as long as statue has any assaultive element, then
merges.
B. FOR EXAMS: USE INDEPENDENT FELONIOUS PURPOSE OR
ELEMENTS OF FELONY HAS ASSAULTIVE ASPECT MERGE.
1. Hypo: Slugglo chases person into house. Under Chun, bulgarly does not
merge and can use felony-murder. D is better off killing before getting
into the house so he can use defenses of provocation and diminished
capacity.
2. Usually, provocation and diminished capacity are not defenses to felonymurder. Again, no mens rea.
3. Hypo: Batter Jerold, who dies. Pred of battery has assaultive element, so
merges. If steals TV and Jerold dies of heart attack, then pred of bulgalry
applies and felony-murder applies and no defenses. D is better off not
stealing TV, and battering instead.
4. Central problem with felony-murder: not based on mens rea, whereas all
other homicides are graded on mens rea instead of mere results.
Underlying felonies depend on mens rea.
C. Killings not in furtherance of felony
1. Felony-murder rule applies only when killing is done in furtherance of
felony.
2. State v. Canola: owner of jewly store attempted armed robbery.
a. [majority] Agency Theory [narrow scope of felony-murder]: act
must actually be commited by his hand or by someone acting in
concert with him or in furtherance of common purpose. Second
felon is not responsible.
b. [minority] Proximate Cause Theory [broad scope of felonymurder]: any killing within forseeable risk of commting felony. Al
deaths reulsting is liable.
c. 3rd limitation of felony-murder: Where felon is victim, cannot
apply felony-murder. explained by retributive arg of courts.

14

d. MPC: felonious action satisifies implied malice, can be 1st degree

without resort to felony-murder doctrine.
e. Felony applies up until felon reaches point of temporary safety.
f. Co-felons not responsible for accidental killings that were not part
of original felonious plan.
g. Holding: No, not felony murder under Agency theory. Courts want
to restrict felony-murder.
h. NY adopts Prox Theory: Police 2 shot Police 2 during
confrontation with robbers. Police 1 did not act in furtherance of
felony but robbers shooting did further the felony. Action must be
more than mere felony itself. Here, can use depraved heart murder
and accomplice liability to circumvent felony-murder rule.
i. Provocative Act Murder Doctrine: Felon A and Felon B rob store
caused owned by couple. Wife is scared by Felon Bs insane
chattering and shoots him. Because felon dies, cannot use felonymurder rule. California invents provocative act doctrine =
depraved heart and accomplice liability.
j. Getaway driver is liable for Felon Bs death. Getaway driver was
accomplice to felony that had depraved heart behavior of insane
chattering. Wife shooting was reasonable response to insane
chattering. Getaway Driver is liable for depraved heart murder of
Felon B.
IX. Mistake of Fact
A. Regina v. Prince: If Princes belief was true, then misdemonar. Misdemeanor
mens rea satisfies felony conviction. Conviction affirmed because morally
wrong; dissent says to subscribe under lesser-crime principle and mistake was
reasonable.
a. Hypo: if believed permission was given by father, when actually uncle,
then no mens rea.
b. In absence of legislative intent, courts decide whether broad or narrow
mens rea.
B. Dissent: mistake is allowed if reasonable.
C. Specific Intent (intending some consequence): mistake of fact is only defense
if it negates mens rea. Reasonablness irrelevant.
a. Hypo: stealing laptop by mistake. No specific intent, so no mens rea.
D. General Intent: mistake of fact is only defense if it negates moral culpability.
So if reasonable, then not guilty.
E. Strict Liability: no defense at all
F. Moral Wrong: no defense if conduct was immoral. So watching child drown
who turns out to be son is mistake, but no defense b/c letting child drown is
immoral.
a. Statutory rape has no defense in mistake of age because morally
wrong.
G. Lessor Offense (legal wrong): mistake relating to degree of crime is no
defense; lesser offense satisfies larger crime.

15

a. Statutory rape has defense in mistake of age because had your belief
been true, you would not have been convicted of any crime.
b. However, child molestation has no defense because it is a different
policy: child molestation has probation, so no defense allowed in
legislatures intent.
c. Olsen: no defense of mistake for child molestation; age is strict
liability element.
d. Hypo: stole valuable thing when thinking was not valuable. No
mistake defense for stealing when thing was small, so no mistake
defense for stealing when thing was large.
e. Hypo: hunting deer off-season is bad and this lesser mens rea satisfies
mens rea of shooting human by mistake (broad view).
f. Hypo: possessing drugs within 300 feet of school. Claimed ignorance
of school is no defense because possessing drugs is still a crime. Still
convicted of larger crime; result is opposite under MPC.
H. MPC: every element has mens rea; just negating one mens rea knocks out
entire crime. Reasonableness is irrelevant. Default mens rea is recklessness.
a. Exception: no defense if actor would have been guilty of another
crime, had circumstances been what he believed them to be. Here in
MPC, the punishment would be at the level of the lessor crime. (D is
only charged for crimes that existed had his beliefs been correct.)
b. Hypo: stealing raincoat that contained money. Since mistake would
have convicted D of petty larcency only, D is convicted only of petty
larceny despite mistake.
c. Hypo: Under MPC, Prince would not have been reckless because he
was not aware of risk. So no mens rea and defense is mistake.
X. Strict Liability
A. Morrisette: converted Air Force bomb casings under mistake of abandonment.
a. Requied mental state: traditional felonious intent for larceny.
b. Dual Presumption: If recent statute and no mens rea stated, then no
mens rea. If old statute, then lack of mens rea mens rea still implied!
c. Statute in Morisette does not satisfy indicia, so statue must require some
mens rea and is not strictly liable. Intent is still implied and must be proven by
prosecution.
C. Characteristics of Strict Liability crimes: relatively recent enactment of
statute to protect public in general; not of great stigma nor penalties; person has
ease of avoidability.
D. Hypo: bartender who gives out whisky instead of soda by mistake. Strictly
liable.
E. Balint: Ds indicted for selling opium. Question of legislative intent, Congress
decided strictly liable to protect innocent people.
F. Dotterweich: mislabeled bottles by upstream manufacturer. No mens rea
required; strict liability because Congress preferred to place burden of information on
companies rather than helpless public. Convicted of introducing adulterated drugs.
G. Staples: D did not know firearm was capable of automatic firing.

16

a. Staples satisfies some but not all Morisette indicia (ease of avoidability
is not mentioned; harsh penalty for this crime affirms application strict liability).
Holding: in absence of clear legislative statement, assume that mens rea is
required and that prosection must still prove intent.
b. Single Presumption: implied mens rea, even if not explicitly stated.
1. Exception: Public Welfare / Regulatory Offenses: does not
include gun ownership, for example, because this would criminalize actions which are
ordinary.
c. X-Citement: mens rea must be required for each element, even if not
explicitly expressed. Courts have policy of limiting strict liability application. Do not
want to criminalize ordinary conduct. Only punish acts that could have been avoided.
H. Strict liability requires voluntary actus reus. Involutnary act is defense against
strict liability crime.
a. Baker: stuck cruise control. Voluntarily turned on cruise control, so no
involuntary act defense. Strict liability statute requires no mens rea so foreseeability is
irrelevant.
I. Policy for Strict Liability: punish to avoid crime. Negative example includes
Dautterwite, which punished manufactuer for mislabeled drugs.
XI: Mistake of Law
A. Morgan v. DPP: majority of states do not permit mistake of law, although
some do.
B. MPC: No mistake of law defense because statues do not require knowledge of
their own existence as element, so there is no element to negate!
1. Exceptions:
i. reasonable reliance (like on person in official legal capacity)
ii. fair notice = not made available, not reasonably known
iii. ignorance that rejects mens rea
C. Generally, no defense of mistake of law.
1. Exception: reasonable reliance on official statement of law (not
interpretation)
2. Fair notice: grossly unjust to assume that citizen would be aware of law
3. Failure of Proof: P did not prove mens rea element
i. Specific Intent: negates specific element
ii. General Intent: no defense at all!
D. Marrero: no mistake of law, regardless of reasonablness.
a. Exception: if mistake was made on official statement of law or if
mistake was Collateral Mistake of Law
b. Marreros mistake of holding pistol as peace officer was reasonable
but not excused.
c. Policy for Excluding Mistakes of Law: prevent abuse and frequent
mistaken interpretations
d. Under MPC: law itself must contain mistake in order for mistake
defense to be successful.

17

E. Direct Mistake of Law / Same Law Mistake: strongly disfavored by courts to

minimize abuse. Is an affirmative defense in above exceptions (relying on
official interpretation, law later proven to be false, etc.)
a. Ex: accidental bigamy because didnt know adultery was crime
F. Collateral Mistake of Law / Different Law Mistake: not likely to be abused, so
slightly more favored by courts. Is a failure-of-proof defense.
a. Ex: accidental bigamy because didnt know of different divorce laws
in different states
G. Under MPC, Woodss default mens rea would be recklessness. Woods was
not reckless, so would have successful mistake of law defnse.
H. Weiss: D charged with kidnapping ,but errorensly believed he had been
commissioned as peace officer. He thought he was confining lawfully, so
mistake defense is permitted.
I. Schneider: D possessed marijuana thinking it was misdemonar when actually
was felony. Court says no specific intent to commit crime of possession is
necessary; general intent is sufficient to say no defense at all. Under MPC,
Schneider would have good defense of law because would have negated mens
rea of recklessly being a felon.
J. Cheek: D believed he owned no taxes. Court says there is defense regardless
of reasonableness, because Cheek was not aware of duty that he evaded.
Legislative intent was that statute makes knowledge of its existence an
element. Lack of knowledge therefore means that element is not satisfied.
K. Lipperota: bought food stamps with cash. Yes, mistake of law, because
otherwise this crime would criminalize many innocent people that buy
foodstamps at inflated prices.
L. Lambert (USUALLY DISTINGUISHABLE): MPC law: mistake of any kind
is defense if negates mens rea of any time. But in general, criminal law does
not require culpability in regard to its own existence, so there is often no mens
rea to negate.
1. D charged with being a convict without registration. Holding: lack of
knowledge of duty is excuse, because no opportunity to avoid
consequences of law. Do not punish omission.
2. This is Same Law Mistake.
3. Unlike Cheek, this statute has no mens rea requirement.
4. The statute is (i) purely passive conduct, (ii) no cirucmstances that put
Lambert on notice to determine if she owed a duty; (iii) no real
importance to this law; (iv) heavy criminal penalties exist.
5. So, punishing D for violating this statue is violating due process b /c
no opportunity to avoid consequences of this law.
M. Reyes: drug addicts re-entered United States; not passive conduct.
N. Bryans: sex offender failed to register in other state; this law does have
importance. North Carolina rule.
O. Garrison v. State: sex offender failed to register; this law DOES have
importance. Mississippi rule.

18

P. Under MPC: failure of proof / Collateral Mistake of Law: recklessness is

default standard. Lambert was reckless as to failure to register; should have
known. So under MPC, Lambert does not have mistake of law defense.
Causation
I. Traditional Law
a. Prox Cause = sufficiently close to harm caused. Test: intervening
cause. (But-for is for factual cause.)
b. If Ds conduct directly causes death; i.e. no superceding cause, then
foreseeable is not needed.
c. Acosta [No Precedental Value]: colliding helicopters. made a duty for
police to apprehend. Forseeable that someone might act negligently.
i. Not highly extraordinary.
ii. No mens rea for murder, convicted only for lesser homicide.
d. Arzon: forseeable = ultimate harm caused. Set 2 fires where fireman
died.
i. Both fires contributed, so no chain of events needed and both
have prox caused.
ii. Ultimate harm was forseeable and sufficient cause of death.
e. People v. Warner-Lambert: forseeable = chain of events. Factory
explosion caused by ignored hazards.
i. Dismiss homicide charges b/c prox cause cannot proved
because no chain of events can be proved.
ii. Special rule to usually benefit companies.
f. Stewart: conflicting evidence in why victim died (stabbing vs med
mal). But-for is satisfied, prox cause is not.
g. Hypo: earthquake is intervening cause in NY where earthquakes are
rare. 2 fires occur just as in Arzon. Ultimate harm of death of death by
earthquake satisfied b/c Arzons action placed firefighters in
dangerous situation; foreseeable.
II. Current Law
h. Campbell: gave V a gun and V commited suicide. Foresaw death, but
no intent so no murder. No murder under traditional but yes murder
under MPC. (MPC = result achieved is intended result).
i. Hope alone is no intent. No prox cause.
i. Kevorkian: assisted suicides. No murder under traditional but yes
murder under MPC.
i. Under MPC, result achieved is intended result. Convicted
under MPC, but not under traditional law because no prox
cause.
ii. Traditiona law would say foreseeable to cause death, so would
be murder.
iii. Current common law says that assisted suicide is not murder as
long as deceased was mentally responsible.
j. In general, if there is intervening act independent of D, casual chain is
broken and there is no prox cause.
19

k. Act is not intervening if it is reasonable or foreseeable response to

danger created by D.
l. Stephenson: KKK defendant abused woman who commited suicide.
Holding: Victim was insane so was NOT an intervening cause that
broken causal connection between Ds conduct and death.
i. There is prox cause because D made V mentally irresponsible.
ii. The viler the D, the further prox cause extends.
iii. V killing other people is not forseeable. Immediate suicide is
forseeable ,but not suicide month slater.
iv. Under MPC:
1. Was Stephensen cause of Vs suicide? No
2. Should V have been aware of suicide possibility:
a. If yes, the n causation is fulfilled.
b. If no, then:
i. Did result differ from intended result?
ii. Did result differ from probable result
(i.e. too remote to make D liable?)
iii. Because D was vile, the result will NOT
be too far from probable result. Jury is
making moral decision.
m. People v. Armitage: 2 people on capsized boat. V tried to swim to
shore, which was an unreasonable effort, and drowned.
n. Hypo: wife discovers husbands affair and commits suicide. Prox
cause?
III. MPC Causation: but for + any other specified requirements [NOT
COVERED ON EXAM]
A. For all mental states: where there is men rea, element is satisfied if
result is within contemplation of actor. Exceptions:
a. Transferred Intent: still convicted of first degree murder
b. Actual injury was more serious than contemplated offense. Still
convicted. Ex: intended to kill you but only burned you. Still
caused!
c. MPC Prox Cause : result involves same kind of contemplated
harm, and not too remove as to be unfair in culpability. No
discussion of intervening cause.
i. Ex: shoot at V while V is driving. V changes direction
and is hit by lightening. Intended death is
accomplished, but method was too remote.
IV. Intervenign Acts Risk Death
A .Kern: non-independent intervening actor. White teeangers chase black men;
one man hit by car while running. Jury said that Vs action was his only choice so was
reasonable. Ds convicted of homicide.
B. Mattos: police chasing robber who leaps buildings. Police leapt to
death. Jury said police had legal duty to chase, so robber was prox
cause. If police had been struck by falling object, then no prox cause
b/c robber did not create risk of falling object.
20

C. Root [Minority View]: D and V raced cars and V died. No prox cause.
a. D claimed that Vs free action was cause of his own death.
D. MaFadden [Majority View]: not guilty to avoid tort prox cause.
a. Pennsylvania court did not want to expand to tort prox cause,
so narrows direct cause and makes D not guilty.
b. McFadden could be accomplice, but this would NOT result in
homicide conviction b/c V killing oneself is not homicide and
so McFadden is not accomplice to homicide. So court used
causation to say that McFadden caused death.
c. D in Root would be convicted because there was a
competitive enterprise. But for is satisfied; D forced other V
to drive recklessly.
E. Atencio: Russian roulette. There IS prox cause
a. No contrib neg bar in criminal law b/c the issue is punishment,
not compensation.
b. Distinguish from Root: drag racing has skill and so Roots
conduct there did not require D to make dangerous move.
Russian roulette players forced V to make dangerous move and
play, so there is prox cause.
c. Vs conduct was not indepdent of Ds conduct; there was a
mutual encouragement in joint enterprise.
d. Hypo: Atencio dares V to play solitare Russian Roulette. No
joint enterprise.
e. Hypo: at party, drinking competition and one person dies. Yes
joint enterprise.
f. Hypo: burglar kills house owner who wakes up. Burglar
attends swap met where D purchases stolen items.
g. Hypo: illegal to play Russian Roulette. Bystander calls police,
when police arrived the game has been played but no one died.
D1 claims involuntary behavior and cause by D2 and D3, so no
oen should be convicted of breaking the statute.
F. Warner-Lambert: Ds behavior was not prox cause because he could
not find trigger and determine chain of events. In torts, precise manner
of death need not be determined.
V. Accomplice Liability
A. one person is responsbiel for another, without cause needed.
B. Ex: McFadden: V caused his own death. So causation has second meaning of
responsibility, outside of direct causation.
VI. Attempt
A. Punished less than complete crime.
B. Hypo: avert eyes while driving. Run over victim, vs no victim there.
C. Smallwood: attempt rquires intent to commit result.
a. D transmitted HIV to rape victims who died

21

D.

E.
F.
G.
H.

I.

J.
K.
L.

M.

N.

b. Not guilty of attempted murder b/c circumstantial evidence was

insufficient to infer intent. Without high enough probability of death,
no evidence of intent to kill. Result is not sufficiently probable.
c. Could be convicted of Depraved heart if indifferent to death. However,
cannot be convicted of attempted murder beyond reasonable doubt.
Hypo: Bill and Joan drunk at party. Joan dares Bill to shoot glass on her head.
Bill convicted of Depraved Heart murder. But no intent to kill, so cannot be
convicted of attempt.
(Deparved Heart, GBH, and Felony-Murder do not require intent.)
Traditional Rule: attempt requires conduct that would result in X + intent
Hinkhouse: D had HIV and intended to cause death of victims. So can be
convicted of attempted murder.
Thacker: drunk person fires bullets into tent containing woman. If killed
woman, Depraved Heart murder. No death cannot be convicted of attempt.
D only intded to shoot the light in the tent. Here, actual murder is easier to
prove than attempted murder.
Why punish attempt:
a. Attempt require intent
b. Deter continued danger of remaining D
Incomplete Attempt: taken some steps, but not all. Intent required.
Complete Attempt: done everything necessary to commit crime, but failed. No
intent required.
Actus Reus:
a. Hypo: D plants bomb on plane to harm pilots reputation. No intent but
knowledge. Bomb fails to explode. Yes saw, but no intent. At common
law, attempted homicide is uncertain. At MPC, convicted of attempted
murder.
b. MPC: attempt = acting with culpability, either purpose or belief will
sufficice. For incomplete homicide attempt, common law:
foreseeability = intent.
c. Some courts will say that complete attempt is necessary to satisfy
actus reus. Other courts say any step is sufficient.
d. Last Act Test is nonsensical b/c last act is always achieved murder.
The more remote the act is from the crime, the more difficult it is to
prove intent. Intent to act is difficult to measure. Convict people who
were merely angy.
e. Dont intervene too early. Intervene only when person will not change
their mind; want to preserve option of abandonment.
f. Convictions can be faked and are not reliable indicators.
Rizzo: men intended to rob payroll man but did not discover him. Anything
can be tending towards proposed crime, but attempt requires something
more.
Dangerous Proximity Test: must be dangerous proximity to success in act;
otherwise mere preparation and not intent. Disadvatnages include:
a. Inexact
b. Ignores what has bene done; only considers how much is left to do
22

O.
P.
Q.

R.
S.

c. Preserves option of abandonment

More serious crimes will have wider scope of proxity
Ex: hid car and told insurance company car was stolen. B/c hadnt sent actual
letter requesting insurance money, not enough to satisfy proximity test
McQuiter: Highly disfavored Equivocality Test: act is not criminal unless it
itself is sufficient to prove intent. Uneqovically clear that he intended to
commit crime? Looks only at act, not at other cricumstnaces like confessions.
Disfavored because unsure how many acts should be considerd, along with
context. Does not consider how far into chain of events D went.
Barker: D arrested for attempted sodomy with boy. Manifested criminal intent
in existence of crime, so context is considered here.
Transferred Intent for Murder: shoots wrong person, can be convicted of
premed murder through transferred intent or general intent to kill.
a. California: a persons intent is not used up once death occurs.
b. Attempted Murder: NO TRANSFERRED INTENT DOCTRINE!
Attempted murder requires intent to kill.
i. X intends to kill Y but wounds Z. No attempted murder of Z.
ii. X intends to kill Y but misses and kills Z. Yes attempted
murder of Y, and actual murder of Z.

Examples of Legal Imposiblity Yes Defense

-D attempts to vote, falsely believing he is 20. Did not actually commit crime.
-D shoots stuffed deer out of season, believing its real
-D tries to bribe someone he falsely believes is a juror
*all mistakes are really mistakes of fact in impossilbity cases. Most courts reject all
impossibility claims.
Examples of Factual Impossibilty No Defense
-pickpocket cases
-D tries to extort money from V, falsely believing that she believes his threat
-D shoots into a room where he falsely believes V is asleep. No defense.
-D with HIV spits into officers face, thinking this can transmit the virus
Reasons to Distinguish Factual from Legal Impossibility:
-there must be specified act. Without impossibility defense, any act could be considered
actus reus. Ex: 2 brothers tried to kill judge with voodoo. Attempted murder b/c no
impossibility defense since Ds thought would cause death. Substantial step exists; should
preserve impossibility defense!
-without impossibility defense, prosecutions and defenses would increase. Without
distinguishing acts based on impossibility, cases turn on evidnce of intent which has
sometimes unreliable testimony. Conduct must be relevant and labelable.
Barrogan Distinction: legal impossibility = acts if completd would not amount to crime
Factual impossibility = unknown circumstnaces prevents consummation. Dolinko says no
real difference in Barrogan Distinction.
23

T. MPCs Actus Reus for Attempt: how much the actor has already done
a. Complete attempts without result element: D has done what would
actually constitute the crime, had his beliefs been correct
b. Complete attempts with result element: D has done everything
believed necessary to produce desired result
c. Incomplete attempts:
i. substantial step satisfies far enough [very few states use]
ii. strongly coorobotive of actors criminal intent
d. Ex: D writes of murder plan in diary. Strongly corroborative, but not
substantital step. Focuses on what remains to be done.
e. Hypo: D believed girl was 18, but was 16. Attempted statutory rape
under MPC; statutory rape is strict liability crime. No substantial step
(so no crime), b/c D thought V was 18.
f. Target Crime = crime that D is accused of attempting
U. Dolinkos MPC on Attempt of Actus Reus:
a. Look at target crime.
b. Conduct element: purpose: purpose
c. Result element: purpose or belief
d. Circumstnace element: culpability required for target crime
e. Ex: no mens rea required of age, so no mens rea of statutory rape, so
no mistake defense will work.
V. Jaffe: Supreme Court held no conviction b/c impossible.
a. Crime of recovering stolen property = buying property believed to be
stolen. Can only convict D of attempting to receive stolen property.
b. Supreme Court said no crime b/c actual reality is that target crime is
not achieved and so attempt of target crime doesnt exist. If actually
consummated, no offense!
c. Distinguish from pickpocket cases, where pockets were empty.
W. Dlugash: D1 shot V and D2 shot V fives times in head b/c he thought it was
dead.
a. factual impossibility b/c extraneous circumstnaces beyond Ds
knowledge or control i.e. victim is already dead.
b. Also legal impossibility b/c acts if completd would not amount to
crime.
X. Legal Impossibility: an actual defense. Ds act has never been made criminal
at all. Trying to complete non-existent crime, like homosexuality.
a. Olivdo: convicted of attempting to sell heroin. Not actually heroin.
Need impossibility defense. Dolinko says legal and factual
impossibility are non-distinguishable.
VII. Accomplice Liability Mens Rea
A. Aiding and abetting: encouraging, inciting, or helping to commit the crime
B. Hicks: must also act with (i) intent for principal to commit the target
crime and (ii) result element of aid is necessary.

24

C.

D.
E.
F.
G.

a. TC judge should have included intent element. Hicks said Take off
your hat and die like a man; D claimed that victim was uncertain.
b. Hypo: Hicks present ready to aid but not needed. If there was prior
arrangement, can still be accomplice by mere presence.
c. Hypo: Hicks knows of Rowes plan to kill V and indepdently decides
to go watch. No actus reus, no prior arrangement. If Hicks smiled, still
no intent of smiling to encourage murder.
d. Hypo: Hicks shouts words of encouragement and intended to do so,
but if Rowe was deaf and didnt hear, then not actually encouraged.
e. Hypo: Hicks is resolved to help if necessary. Still no actus reus b/c not
communicated to Rowe. Result of encouragement is required.
f. Hypo: Hicks is local sheriff. Then omitted from performing legal duty,
so can be convicted as accomplice.
g. Hypo: At Rowes request, Hicks tells V to show up at certain time. V
dies. Hicks intended for Rowe and V to meet but not for V to die.
Need intent to aid Principal in commiting crime and; knowledge that
act is a crime is not necessary for conviction.
h. Hypo: V raped Rowes daughter and Hicks thinks its not illegal to kill
rapist. Still accomplice b/c mistake of law is no defense.
Gladstone: D volunteered to draw map for drug buyer to buy drugs. Holding:
need real intent for crime to succeed.
a. Gladstone convicted as accomplice to Kent in selling marijuana. Narc
had asked Gladstone where to get marijuana. Gladstone not charged
with accomplice to purchase; charged as accomplice to Kent in selling
marijuana b/c Narc purchasing drugs is not a crime.
b. Supreme Court reverses conviction b/c no nexus between Kent and
Gladstone (i.e. no prior arrangement). Also, Gladstone had no mens
rea of getting V to buy marijuana. Must seek crimes success;
knowledge of rendering aid is insufficient, must intend crimes
success.
c. Ex: if bystander came to robbers aid, even without prior arrangement,
can be convicted as accomplice.
d. Hypo: D allows robbery to take place at his employment. D rips out
wire of panic button. Is D accomplice to robber? Yes because both
actus reus and mens rea of real intent, of making robber succeed, are
present. No nexus of communications, but still an accomplice.
e. In Gladstone, D did not have real intent of crimes success, only
considered mere intent.
MPC: must also have purpose. Knolwedge is not enough.
Policy: otherwise, victim would be accomplice. Also preserve individual
autonomy of wandering around without duty to others.
Old MPC: only knowledge is required.
NY criminal facilitation in 2nd degree: believing probable that he is rendering
aid to person who commits a crime. D engages in conduct which provides
such person with means of commission and actually aids.

25

H. Money laundering: to conduct transaction knowing that transaction is

designed to conceal location of proceeds of unlawful activity. Applies to
transactions of more than $10K.
I. Campbell: willfull blindness, incaution prosecution.
VIII. Accomplice Liability Wrt to Conduct
A. Mens Rea (i) intent to aid or encourage P to engage in the conduct resulting
in the offense, or (ii) mens rea for target crime. And actus reus of offense.
B. Convicted of target crime. Being an accomplice itself is not a crime.
C. Posner minority: knowledge is sufficient.
IX. Complicity with Unintended Result
A. Hypo: P gives ride to A to airport. A encourages fast and reckless driving; P
hits another car and kills driver. P is convicted of vehicular manslaughter
(mens rea of gross neg or recklessness.) A is grossly neg and doesnt intend
death. Grossly neg is suffiicnet to contict P so sufficient for A.
a. Abbot had no true purpose of death. But focus on conduct of drag race,
so accomplice in conduct that causes death is satisified. Here, conduct
was the active drag race, not just a tiny move within the action.
B. Accomplice Liability Wrt to Result: If act with same mens rea wrt to result as
to whats required for principal, then mens rea is sufficient.
C. Limitation: knowledge that action furthers conduct is not sufficient. Neg is
sufficient.
D. MPC: An accomplice with conduct that causes result, if he acts with
culpability required for the result of that crime.
a. Does not need absolute purpose, just whatever mens rea is required for
the crime (like gross neg for manslaughter).
b. Same as common law.
c. Abbot and Moon engaged in drag racing. Aiding and encouraging
conduct that resulted in death.
X. Complicity with Attendant Circumstances
A. Knowledge or awareness that circumstnaces exists, not that circumstnaces
make act illegal.
B. In strict liability crimes: A asks P to take him to airport. Ps registration tags
are expired. A is accomplice b/c strict liability requires no mens rea.
C. Hypo: A possessed firearm as convicted felon, which is strict liability crime. B
can be accomplice in selling gun to A under some circuits b/c strictly liable; other
circuits say that at a minimum neg is required for accomplice.
D. 3rd circuit: knowledge is required: B is accomplice only if he in fact knew that
A was felon.
E. Policy of limiting strict liability and so limitation on accomplice liability.
1. Exception: statutory rape, which has different policy considerations. Ex:
B encourages A to have sex with F, whom they falsely believe is an adult. A can be
convicted of statutory rape; reasonable mistake is no defense b/c strictly liable. But B is
accomplice in some courts but not others.
26

F. Factor can be opportunity for accomplice to determine attendant circumstance.s

G. Hypo: A intends to have sex with F, whom he reasonably mistakes to be
overage. A borrows Bs apartment. B has aided A in crime of stator rape. Less reason to
apply strict liability because B is passively allowing A to engage, instead of actively
encouraging.
H. MPC: says nothing about mens rea for attendant circumstances of attempt.
XI. Natural and Probable Consequences Used by majority of courts
A. Not target crime. Make yourself an accomplice to first crime, and liability is
extended to second crime. All must be commited by principal.
B. Luparello: liability is extended to natural/probable/forseeable harms that result
beyond target crime. No need for either mens rea of traditional accomplice
liability to be satisfied.
a. 1st mens rea of intending to aid principal in target crime does not
have to be satisfied when killing is natural and probable consequence.
b. 2nd mens rea also not satisified. No mens rea of accomplice liability
satisfied.
c. D is first degree murder by lying in wait. But Luparello is accomplice
by natural and probable consequences b/c he commissioned assault.
C. CA: second crime must be foreseeable.
D. Natrual and Probable: likely to happen if nothing unusual interferes. Ex: threat
of murder is forseeable.
E. Bingham: D is in gang. Leader puts out hit. Ds think they see hit, but then D1
says no. d2 kils anyway and convicted of murder. D1 is accomplice of 1st
Degree Murder despite not intending to murder, b/c natural and probable
consequence. D1 knew that D2 was prone to murder.
F. Hypo: Joe wants to bulglarize Dolinko family. Karen tells Joe when the
family will be out of town. Karen is accomplice to bulglarly. Joe shoots
Dolinko, convicted of attempted murder. Karen can be convicted of attempted
murder as accomplice b/c killing is natural and probable consequence to
burglary. (Without natural and probable consequence theory, would only be
neg or reckless.)
G. In practice, natural and probable consequences mostly applied when second
crime is homicide. In above hypo, second crime is attempted murder, so no
application of natural and probable consequences doctrine. In these cases
where second crime is homicide, prosecutors use felony-murder rule instead.
H. MPC: rejects natural and probable consequences.
I. Accomplice Causation:
a. No but-for needed in accomplices
b. Wilcox: furthest extension of accomplice liability.
i. Properieter of jazz club helped saxophone player illegally play.
Encouraged is sufficient for accomplice.
ii. If accomplice was not necessary cause for commission of
crime (like getaway drivers), then not many convictions. So
but-for is not a necessary test.

27

J.

K.

L.

M.
N.

O.

P.

Q.
R.
S.

iii. Also, cannot cause another person to do something, so

accomplices cannot be but-for cause of principals actions. As
long as accomplice does something to aid crime, then is
sufficient for complicity.
c. Accomplices to prize fight overturned b/c no evidence of
encouragement, unlike paying for tickets.
MPC: attempt to aid is sufficient. Methods of becoming accomplice include
solicitation, aiding/agrees/attempts to aid, or failing to prevent crime where
there is legal duty to act.
a. Actus reus = encouraging or soliciting
i. Solicitation = command, encourages or requests
b. Mens rea = purpose or belief
c. Omission if legal duty. Ex: policeman wants gambling to proceed.
Omission of legal duty = accomplice; presence of bribe would connote
purpose.
Talley: Ross seduces sister-in-law of Talley. Brothers of woman decide to kill
Ross. Talley sends telegraph to telegraph operator to stop the telegram
warning to Ross. Brothers kill Ross. Talley is accomplice at common law.
Hypo: Talleys telegram is too late to stop warning. But warning is also too
late, and Brothers have killed Ross. Talley is NOT accomplice b/c telegram
did not aid. (Under MPC, would be accomplice b/c intended and attempted,
regardless of failure.)
Hypo: Talley tells Brothers that he will stop the warning. Then he is
accomplice b/c aided. Under MPC, would still be accomplice.
Hypo: Talley attempts but fails to kill Ross. No murder for direct perp. Tries
to help other people kill Ross and fails, convicted of murder as accomplice.
Signed on to venture as accomplice, so attempt is sufficient.
Hypo: Talley successfully sends telegraph to stop warning. Brothers kill Ross,
who fights them off. Under traditional law, cannot be accomplice to murder
b/c no murder occurred. But can be accomplice to attempted murder.
Mere facilitation is sufficient, no but-for needed.
Hypo: Talley thinks Brothers want to kill, but they dont actually. Under
traditional law, no murder or attempted murder, so no accomplice liability.
Under MPC, conduct designed to aid, and would establish complicity
regardless of crimes completion, so Talley is attempted murder as actual
perpetrator. Not as accomplice, b/c principal did not attempt.
Mens rea + substantial step = principal of attempted incomplete murder.
MPC has increased subjectivity. For example, there is no impossibility
defense allowed in MPC.
Hypo: Talley is at telegraph office to stop the warning. Brothers do not know
of Talley. Under MPC, attempt to aid is accomplice. But if Talley only stood
in line, is that enough for attempt? Only intended, but occasion never arose.
Must consider further Attempt analysis, substantial step?

XII. Relationship Between Principal and Accomplice

28

E. Hayes [what happens when theres no crime? Not debating whether excuse
extends]: Hayes proposed crime to Hill, who then pretended to be accomplice.
a. Hayes had no mens rea, so no attempt. No crime, so no accomplice
liability.
F. Innocent Agent / Instrumentality Theory: Hayes will use Hill as tool.
a. Cannot convict if tool is animal. Ex: trained dog to ill neighbor. Dog is
not accomplice; D is not accomplice; D is perpetrator.
b. Can deceive or coerce someone into being an instrument.
G. Hypo: Hayes wants to steal bomb casings. Hayes knows that casings are not
abandoned. Hayes entreats Hill to pick up casings. Hill cannot be convicted of
theft b/c did not have mens rea; believed Hayes claim that property was
abandoned. Hayes can be convicted as perpetrator and used Hill as tool;
Hayes literally caused Hills actions.
H. MPC: Hayes can be convicted of Attempt where he coerces Hill or tricks him.
Engaged in conduct that would make him Hills accomplice if Hill had
completed the crime. Furthermore, the attempt is punished to the same degree
as the actual crime.
a. Exception: 1st Degree felony, which does not include the relevant
crimes of burglary or theft in this case. So can be convicted of crime,
had Hill completed the crime.
b. To be accomplice, need common intent/design/motive.
i. Exception: Natrual and Probable Consequenes doesnt require
same intent.
I. Excuses: if Ds conduct was wrongful but D is not responsible for his conduct.
Insanity.
a. Hypo: Hayes entreats Hill to help with robbery. Hayes is unaware that
Dolinko has kidnapepd Hills son and coerced Hill into helping Hayes.
Hill has complete excuse of coercion.
b. Cannot convicted Hayes under Innocent Instrument, b/c he wasnt
making Hill a tool; he thought Hill was helping him!
c. Therefore, must convict Hayes as accomplice and principals excuse
defense does not extend to Hayes b/c no one coerced Hayes.
J. Justifications: if Ds conduct is not legally wrongful, because the action was
permissible. Self-Defense.
a. Tony attacks Paul with knife. Arthur intervenes and distracts Tony,
allowing Paul to kill Tony. Paul can argue self-defense, but (majority
view) Arthur has no defense b/c self-defense justification cannot be
extended. So convicted of accomplice.
b. Minority View: Pauls conduct was not wrongful and so no crime to be
accomplice to. Arthur is not accomplice. Self-defense or other
justifications extend, because in justifications the conduct itself is not
wrongful and there is no crime.
K. Vaden [does justification extend?]: undercover agent Snell is killing foxes
from airplane. Vaden is pilot. Vaden as accomplice confirmed. Snell is not
justified by his role as public authority of undercover agent, because has gone
outside boundary of allowable tactics.
29

a. Dicta: And even if Snells actions were justified, his justification is

personal to him and does not extend to Vaden. Public Authority
Justification Defense applies only to government officials. Court says
does not extend b/c either (i) they misused the term justification, or (ii)
they perceive this Public Authority Defense as a THIRD policy-based
immunity from prosecution. Ex: Farnsworth: actual spy had
diplomatic immunity, and accomplice was still convicted.
XIII. Derivative Nature of Accomplice Liability: there must be guilty principal before an
accomplice exists. Accomplice shares in Principals liability.
L. Hypo: Roger is found not guilty of burglary in first trial. Amos is found guilty
as accomplice in second trial. Amos conviction does not have to be thrown
out, even when juries find contradictory approaches. Convictions stand as
long as proven beyond reasonable doubt.
a. Jury Nullification: jury decides whatever verdict they want in violation
of law. No directed verdict or JNOV like in tort cases.
b. If same trial, then Amoss accomplice conviction would be thrown out
b/c self-contraditory. Dervivate Nature of Accomplice Liability
applies.
M. Can accomplice be convicted of greater crime than perpetrator?
a. McCoy: drive-by shooting with McCoy as driver. Leakey opened fire
with McCoy, and decedent was shot by McCoy. Leaky charged as
accomplice .McCoys conviction reversed b/c did not instruct jury on
imperfect self-defense (belief of imminent harm is unreasonable).
Imperfect self-defense is not complete defense, but reduces murde to
manslaughter. Leakys murder conviction stands, more serious crime
than McCoys manslaughter. McCoy has (partial) personal excuse
defense of unreasonably thinking he was about to be killed. Leaky
does not have imperfect self-defense.
b. Richards: wife instructs men to beat up her husband. Husband escaped
without serious injury.
i. TC: Jury convicted men of lesser crime of assulat and
convicted wife as accomplice of assault with intent to inflict
grevious bodily harm. Men did not have mens rea of intent to
inflict grievious bodily harm. Acts of men can be ascribed to
wife; wife caused the attack actus reus and only her state of
mind had intent to inflict bodily harm. Therefore, wife
convicted of larger crime in TC of assault with intent to inflict
grievious harm.
ii. Supreme Court: Court held that men were not coerced and
were voluntarily acting, so wife cannot be held to a higher
crime than the one actually commited. Richards was thugs
accomplice, so shared in their liability. Her liability was the
same as theirs, so she could only be convicted of
misdemonear assault.
N. Hypo: Dolinko gives instructions to lost people with intent to beat Dean. Lost
people took substantial step towards Dean, but did not have intent to beat
30

O.
P.
Q.

R.

Dean. Dolinkos intent and lost peoples actions abscribed to him means
Dolinko can be convicted of higher crime as accomplice than direct perps.
Richards: under MPC, wife is convicted of attempted murder b/c would be
murder had the men completed the act as the wife had intended.
For homicides, courts allow accomplice to be convicted of higher crime than
direct perps who have partial excuses of no premed.
Hypo: Dolinkos friend is mad at Jerold. Dolinko gives friend gun; friend kills
Jerold .Friend has defense of provocation, but Dolinko doesnt, so gets
convicted of murder.
Hypo: Alex intends to kill Carl. Alex hands Beth a gun and tells her to scare
Carl. Alex loaded gun with bullets, so Beth kills Carl. Beth is grossly
negligent so involuntary manslaughter. Alex convicted of murder b/c premed.
Actual crime of involuntary manslaughter (never would be actual
manslaughter) < Alexs conviction of accomplice to murder. Murder did not
occur, but Alexs intent and Beths actions that are not fully volitional. But
Beth was volitional in acting.

I.

Conspiracy
A.
agreement by two or more persons to commit a crime. (i) intent or purpose
of furthering a crime + (ii) act to further the crime by assistance.
B.
some states require that at least one conspirator commit some act in
furtherance of crime (Overt Act Requirement). The act itself does not have to be
criminal or a target crime.
C.
Inchoate Crime = Crime that hasnt reached the ultimate goal, like
conspiracy or agreement. Allows early intervention.
1.
Conspiracy: mere agreement is generally sufficien;t some states
require an Overt Act
2.
Attempt: substantial step act needed
D. Conspiracy is substantive crime and accomplice liability means youre
convicted of crime itself. Attempt merges with target crime if completed. However,
conspiracy does not merge with completed offense.
E. Special dangers of group criminality (more likely t obe commited, danger of
other crimes) do not disappear with fulfillment of target crime, so conspiracy does not
merge with completed crime.
F. Benefits to prosecution:
1. vagueness of conspiracy: 6th amendment: venue in state and district
where crime is committed. Conspiracy can be tried in any state where a
conspirator acted to further conspiracy.
2. Hearsay exception of conspiracy: statement made by one conspirator in
furtherance of crime is inadmissible against other conspirators.
II. Actus Reus of Conspiracy
A. act = agreement. Contrast to Overt Act Requirement, where act in furtherance
of conspiracy after agreement.
B. Conspirator does not need to agree with each part of substantive crime. Could
be merely support function.

31

C. Circumstantial evidence is sufficient; explicit agreement is not necessary.

Prove tacit agreement if there are people, each of whom are engaged in activity that
furthered common goal. Conspirators need not meet or interact, or even know each
others identity. Knowing essential nature of crime is sufficient.
D. Interstate Circuit: 8 movie theaters colluding. Since adherence to set rate is not
dominant strategy, existence of adherence is evidence of tacit agreement. No explicit
agreement needed. Inference of tacit agreement was inescapable by interlocking acts.
Parallel or complementary acts that would otherwise not occur in absence of tacit
agreement is evidence of tacit agreement.
E. Contrast with Garcia: rival gangs. Conspiracy to assault not found; no standing
agreement exists. Need particular agreement for this occasion. Spontaneous parallel
shooting can be explained by personal motives, not conspiratorial agreement.
F. Buffalino (1960): criminals converged on head of mafias house. Meeting
broke up because of police monitoring. Conspiracy to obstruct justice. Excuses for
attending mafias house were bogus, commited perjury. But conspiracy conviction was
reversed, b/c each criminal had individual motive to lie, without need for conspiracy. No
basis to infer tacit agreement for conspired lie.
G. Hypo: 4 theives in store. Passerby join in. 4 theives invite each other to steal,
but not forced to steal. Passerby not invited; their parallel actions have individual
motives.
No conspiracy theory b/c of individual motive.
Yes conspiracy theory b/c invited and acted.
H. Azim: D driving car with two passengers X and Y. V is walking down street.
X and Y stop the car; X and Y attack and rob V. D, X and Y drive away. D is convicted
of conspiracy to commit robbery via Pinkerton, but could potentially claim individual
motive of protecting self.
1. No accomplice b/c would require purpose, whereas conspiracy is mere
agreement.
2. Cases on less evidence than this have also found conspiracy.
III. Mens rea for Conspiracy
A. Talley Hypo: Talleys intervention was unknown to Brothers, so only
accomplice liability no conspiracy.
B. Hypo: D meets with Arnold and B to make drugs. D backs out. D can stil be
convicted of conspiracy. But not accomplice b/c withdrawn before substantive crime is
commited. States that require Overt act requires substantial step by anyone in the
conspiracy.
C. Two types of intent: agreement, + intent to commit substantive offense / target
crime.
D. Hypo: A & B conspire to convert government property, mistakenly believe that
property was abandoned. First type of intent (agreement ) is present, but not second type
of intent (to commit substantive offense) b/c did not know property belonged to
government.
E. Does conspiracy require Purpose or Knolwedge for taret crime?
1. Lauria: purpose, not mere knowledge. Most states and MPC follow.

32

a. Exception (minority view): if crime is very serious, then

knowledge is sufficient. Felonies may or may not be considered serious. Ex: operator of
telephone service knows that product is used for ransom; prostitution is misdemeanor and
not serious enough. Must require purpose.
2. Lauria knew that prostitutes were using his phone for business
pruposes; alleged conspiracy to commit prostitution.
3. But no proof that Lauria took any action to encourage prostitution
activities. No excessive charges, no unusual quantity of business. Knowledge is
insufficient; must be purpose to intend to commit target crime.
4. Hypo: giving advice on how to murder = conspiray. Charging inflated
prices for guns = conspiracy.
5. Hypo: stake in venture = conspiracy. Ex: no other use for object except
killing.
6. Hypo: if volume of business is grossly disproportionate to any
legitimate demand, then conspiracy. Ex: buying lots of drugs; 755 of sales are to people
who commit crimes, etc.
7. Contrast with accomplice liability: if crime is serious enough, then
knowledge is sufficient.
F. Mens Rea for Each Element
1. conspiracy requires at least same mens rea as target crime (ex: no intent
to thievery in abandoned casings)
2. if there is a result element, then must have purpose to achieve result (ex:
in drag race, no conspiracy to murder, b/c no intent of death)
3. No crime of conspiracy of depraved heart. Intent to cause death is
murder, not depraved heart.
G. Corrupt Motive / Powell Doctrine: conspiracy agreement must be animated by
corrupt motive = actions intended to be wrongful. conspiracy has defense of mistake in
malum prohibitum offenses.
Corrupt motive doctrine is a principle of criminal law that says that conspiracy is
punishable only if the agreement was entered into with an evil purpose. Mere intention to
do the act prohibited in ignorance of the prohibition will not suffice. Persons, who agree
to do an act in good faith without the use of criminal means, are not converted into
conspirators, because it turns out that the contemplated act was prohibited by statute. The
actual criminal intention must be shown to justify a conviction for conspiracy. The
principle originated in the case People v. Powell, 63 N.Y. 88 (N.Y. 1875) and therefore is
also known as Powell Doctrine
1. Malum prohibitum: wrongful only b/c made illegal. Ex: driving on
wrong side of road.
2. Malum in se: wrongful, regardless of legal criminality. Ex: murder.
3. If malum prohibitum, then must be aware that act is criminal. Not
corrupt unless you know the act is wrong. If malum in se, then knowledge of facts is
sufficient for conspiracy intent.
H. MPC: Powell is overturned. Majority of states reject Powell.
III. Circumstance Elements of Conspiracy

33

A. Requires no intent in circumstnaces where crime is of a more serious nature.

Ex: selling drugs close to school. Awareness of school is not required.
B. Circumstances where facts are essential to criminality: unaware of attendant
circumstnaces making act criminal. Ex: strict liability wrt to staturoy rape. A drives B and
C to motel to have sex, but are foiled by Cs parents. Did not know of Cs age as to
crime. MPC says presence of conspiracy depends on nature of crime involved, decided
on a case-to-case basis.
C. For Attempt on Circumstance Element: only mens rea wrt to target crime. D
convicted b/c intent to commit statutory rape is satisfied with attempt.
D. Conspiracy v. Attempt: conspiracy is further away (more inchoate) so
liability for circumstance elements is more uncertain and on a case-by-case basis.
E. Goals of Conspiracy Law: to protect against special dangers or group
criminality. Also, allows early intervention in inchoate crimes.
IV. Pinkerton
A. Overt act of one partner is attributable to all. If overt act can be supplied by
one conspirator,y then other acts can be attributed to others in holding them responsible
for substantive offense.
B. Initial agreement /= encouragement. The latter requires specificity as to
offense. No traditional accomplice laibilty for D2, so no liability as perp. Still convicted
under Pinkerton: conspiratory for any crime of conspirators, done in furtherance of
felony .All conspirators are automatically accomplices. Each conspirator is agent of
the other conspirators. Does not require traditional accomplice liability.
C. Overt Act Requirement: done by any conspirator binds the others; substantive
crime by anyone binds all the others. Goal towards conspiracy does not have to be actual
crime itself. Overt act establishes that conspiracy is under way; Pnkerton the nextends
liability to all conspirators by treating them as accomplices.
D. Crime must be in furtherance of conspiratorial goal:
E. Two applications of Pinkerton:
1. Substantive offense is the target crime of conspiracy.
2. Crime commited is not target of conspiracy, but facilitates. Ex:
conspiracy to break out of jail. During breakout, one prisoner kills a guard. Not directly
the target crime, but facilitates. Under Pinkerton, all prisoners are convicted of murder.
F. Bridges: D convicted as accomplice to substantive crime of murder by other
conspriators. Murder was not goal of conspiracy itself, which was aggravated assault =
knowingly pointing firearm at person under circumstances manifesting extreme
indifference to human life. Ds friends fired guns at crowed, killed some. Original goal
was to only beat up one guy. Murder does not facilitate crime of assault, yet court uses
Pinkerton because result was Natrual and Forseeable, reasonable consequence of
conspiracy. Ds convicted of murder as accomplice .Convicted without mens rea
requirement of accomplice liability.
G. Overlap with Natrual and Probable Consequences Theory:
1. Luciano: ran prostitution ring in NYC. P charges prostitution as
accomplice to 614 acts of prostitution, under Pinkerton. Also Luciano killed 2 people , so
convict prostitute of murder. Permitted under Pinkeron, but not under Natrual and
Probable Consequences Rule. Under N&P, prostitution by others must be forseeable
34

result of her actions as prostitution in conspiracy. So Pinkerton goes further than N&P,
sometimes.
2. Other times, N&P goes further than Pinkerton. Hypo: D works in liquor
store with hated owner. Sabotogues alarm to aid robbery ,who does not know of D. D is
accomplice but not conspirator. Robbery wounds owner. Udner N&P, D is accompcle to
attempted murder b/c murder is N&P of attempted robbery, which D is definitely
accomplice to. 1) D is accomplice to attempted robbery, so 2) D is accomplice to
attemped murder because 3) Murder is N&P of robbery.
3. Alvarez: Ds selling cocaine, but buyers were undercover cops. Ds shot and
killed a fed agent. Murder was not goal of drug conspiracy, and did not facilitate
conspiratorial goal. Did not even achieve same purpose.
a. But murder was reasonably forseeable consequence of drug deal. Other
drug dealers who did not shoot were convicted as accomplcies to 2nd degree murder under
Pinkerton. These accomplices were major participatns who had guns and could forsee
murder.
4. Anderson: D referred pregnant women to abortionst but did not know of other
women. D is part of big conspiracy of sending women to doctor. Convited of 24
additional counts of abortion that she did not refer.
H. Some states including CA use Pinkerton.
I. Args in Favor of Pinkerton:
a. a weapon to obtain cooperation from low-level particpants to get to
bigger fish.
b. augments punishment of kingpin who is not actually selling drugs on
street.
c. creates incentives for criminals to monitor each other.

II.

Conspiracy: continuing offense until conspirators achieve their goal or abandons.

A. Abandonment = no conspirator is doing anything to further the goal for
timeframe specificed.
B. Common Law: conspiracy uses common goal of crime or unlawful activity
C. Modern Law: conspiracies require criminal goal
D. No defense of impossibility to conspiracy.
E. Withdrawing from conspiracy: requires direct communication to other
conspirators. If successfully withdrawn, then subsequent actions by coconspirators cannot be used against withdrawn person.
1. Some courts say must notify authorities of conspiracys existence.
2. But that person is still guilty of the conspiracy and actions prior to
withdrawal; cannot undo whats been commited. [minority view]
3. Most states say that withdrawl is successful defense to initial charge of
conspiracy.
F. Cumulative punishment of conspiracy and subsequent commission of that
crime: MPC says that conspiracies with one goal have NO cumulative punishment, while
conspiracies with multiple crimes CAN be punished cumulatively.
III. Parties to Conspiracy
35

A. Gebardi: couple indicted for conspiring to transport women for purpose of

engaging in sexual conduct with man.
1. Mann Act: crime for man to transport women across state lines to have
sex that is criminal.
2. Hypo: half brother-and-sister drove to motel, charged with conspiracy
to commit incest. Crime of incest requires two people, so no conspiracy is possible.
3. But if crime has more than the min # of people needed, then Whartons
Rule doesnt apply. Ex: A drives B and C to commit incest in motel--no Whartons Rule.
3. Whartons Law: crimes that require plurality of agents cannot be
prosecuted for conspiracy to commit that crime. Reason: dangers of group activity have
already been accounted for in original crime itself; do not double-county by charging
separate conspiracy.
1. Federal Rules say that Whartons Presumption can be
overridden by congressional intent.
2. MPC eliminates Whartons Rule altogether, b/c conspiracy is
inchoate crime whose preparation cannot be immunize.
3. Whartons Rule still held today by most states in common law
2. Holding: Gebardis conviction reversed. Not because of Whartons
Rule, b/c a man can individually coerce woman to cross state lines and have sex.
Conviction reversed b/c statute was meant to protect women and punish only the
transporter. The woman transported (regardless of voluntariness) is not subject to
criminal prosecution under the Mann Act, so woman transported cannot be prosecuted for
conspiracy, regardless of voluntariness of being transported.
3. Mr. Gebardis conviction was also overturned b/c cannot prosecute only
one person for conspiracy.
4. MPC: defense exists for conspiracy that if act had been achieved, D
would not be guilty of conspiracy.
5. Ex: if Gebardis goal had been achieved, she would not be accomplice
nor co-conspirator. Not accomplice if youre the victim of a crime. However, Mr.
Gebardi can still be convicted of conspiracy by unilateral conspiracy.
B. Bilateral Conspiracy: two or more people, only 1 needs to be present or alive.
Doesnt matter if the other has already been acquirtted.
C. Unilateral conspiracy: immunity does not extend to co-conspirator. MPC
adopts unilateral conspiracy.
D. Bruno: 87 Ds in four groups: smugglers, middlemen, retailers in NY, retailers
in TX/LA. Court affirms convictions as one big conspiracy, which is from point of view
of smugglers. Bilateral view has one big conspiracy; Unilateral View has two
conspiracies separated by TX and LA smugglers.
E. Garcia: Mrs. Garcia asked Alan Young to kill Mr. Garcia, who was abuser.
Mrs. Garcia gets prosecuted for conspiracy. Bilateral View: no agreement from Alan
Young, so charge is dismissed. Unilateral View: Alans agreement is not necessary b/c
Mrs. Garcia agreed to conspiracy.
1. MPC says that sufficient for actor to believe that he had agreed to
crime, subjective.

36

2. Hypo: D drunk at party. Woke up and believed that he had joined

conspiracy. But conspiracy was mistaken. Under Unilateral Conspiracy, D thought he had
agreed so sufficient under MPC.
III. Self-Defense
A. privilegd to use force if you:
1. reasonably believe
2. such force is necessary to defend against the others
3. immediate or imminent use of unlawful force against you
4. and your force isnt disporporate to threat.
B. Goetz: objective standard, not subjective reasonabless.
1. Goetz argues for change to usual rule of Sd. Wants belief to be
subjectively reasonable, not objectively reasonable.
2. NY allows use of deadly force in face of robbery. Goetz claims belief of
robbery.
3. MPC: use of force is justified when actor believes force is necessary.
1. Exception: if person believes force is necessary, but arrived at
conclusion negligently, then cannot use as defense to crime that requires neg. Same for
recklessness. Mistaken belief of SD = mistaken element of that crime.
2. If mistake is reasonable, then defense.
3. If mistake was neg or reckless, then no defense against crime
that has neg or recklessness.
4. Lack of justification is element of crimes under MPC.
5. SD is complete defense of justification, b/c did the right thing.
4. Hypos:
1. Alan and Victor in argument. Alan punches Victor in mouth. No
imminent threat of force, so no self-defnese. Provocation is only a defense to murder.
2. Victor raises fists and Alan punches Victor. There is reasonable
blief and same level of force used, so yes SD.
3. Victor punches Alan in mouth, Alan knocks hi down and then
walks away. No imminent threat, so no SD. Retaliation is not justified.
4. V punches Alan and prepares to punch again. Alan kills victor.
Murder is not proportionate to threat, so no SD.
5. Victor makes ominous threats and has reputation of violence.
Victor reaches into bulging pocket. Alan shoots Victor, but Victors pocket had only
contained Kleenex. Belief is reasonable, so SD.
5. Under MPC, Goetz is convicted of attempted murder, a crime that does
not require reg or reckless, so there is SD.
6. NY statute: if belief is reasonable defense. If belief is not reasonable
no defense.
C. Subjective belief leads to abuse of Sd. Reasonableness can be verified.
D. Imperfect SD: honest but unreasonable belief murder drops to
manslaughter, functions as defense of provockoation. Not recognized by NY, but is
recognized by CA.

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E. MPC: reckless in belief in SD convicted of crimes that have reckless as an

element. Make culpability match punishment. Punished for neg rather than as
purposefully killer.
F. Goetz had previously been mugged. Leads to reasonabless?
IV. SD By Battered Women
A. Kelly: exclusion of expert was prejudicial error. Expert would increase Kellys
credibility in determining her as a reasonable person who believed in imminent danger to
her life.
1. Convicted of reckless mansualghter, but Supreme Court reverses
conviction.
2. Learned Helplessness = demorazlied, unable to respond to abuse.
B. Norman: D was initial aggressor so loses right to SD.
1. Most states: honest but unreasonable belief that had to use SD to save
life.
2. Holding: no imperfect SD b/c P killed husband while he was sleeping,
so no imminent harm. Reason to require imminence: to preserve other options like escape
before killing. Killing only when absolutely necessary.
3. SD is only justification, not personal excuse.
4. MPC: imminent means imminent chance to defend or escape, as in
imminedate chance to deploy necessary force. Imminent threat of attackers movement is
not necessary.
C. Hypo: D was terrified of neighbor and believed would harm him. Neighbor
waslked towards D. Jury deemd Ds belief of imminent harm as unreasonable.
Reasonable battered women are okay; reasonable paranoid person is not.
D. Abbott: rule of retreat = if you know you can treat to complete safety, must do
so and not use deadly force. Applies to use of deadly force only.
1. Hypo: Amy waiting for bus. Abusive boyfriend Ken pulls out knife and
starts walking towards street. Amy cannot shot Ken b/c must retreat.
2. Most states dont follow Rule of Retreat (CA does), but instead uses
Stand Your Ground. Reason is b/c SD is rule of necessity.
3. MPC endorses Rule of Retreat.
4. Hypo: Amy stands her ground and punches Ken. Ken falls and is
paralyzied. Amy did not employ deadly force, so did not use SD.
a. Deadly Force = (i) intent to produce death or GBH, or (ii) person
knows action would produce death or GBH.
5. Hypo: Ken confronts Amy in her house. She shoots him dead. Castle
Exception: right of defense and right to NOT retreat in ones house.
a. If attacker is family member, MPC says no duty to retreat.
Minoirty says: if attacker is co-tenant, you DO have a duty to retreat.
6. Hypo: knife-wiedling stranger in your office. MPC says general duty to
retreat, except in homes and place of work, so here no duty to retreat. But if stranger is
actually co-worker, then MPC says there IS a duty b/c co-worker is not the same thing as
co-tenant.
a. MPC thus treats office and the home the same (castle right) but
treats co-tenant and co-woekr differently---only duty to retreat if co-worker.
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E. Peterson: Peterson was initial aggressor b/c came out again to thief and
threated him. Theif was about to leave, and Peterson starts things again. Initial aggressor
loses right of self-defense.
1. Initial aggressor = incite attack or promote necessity of taking life.
Affirmative unlawful act. The provokoing act may or may not be illegal, and does not
have to be an act of force. Inflammatory words can be sufficint to count as agreesion,
according to some courts.
2. Allen: shooter was initial agreesor b/c knew of likely
provocation,regardless of intent.
3. Hypo: during fight, B pulls out gun. A started the fight. A is initial
aggressor, even though did not use deadly force. MPC and some states say that B has
right only to use non-deadly force, which gun is not. So Bs use of ugn is illegaly deadly
force and B is initial aggressor.
V. Necessity Defense
A. Necessity defense justified by Utilitarianism, Choice of Evils defense
1. permits individuals to decde when to break the law
B. Ashton: crime of mutiny. Cew permitted defense of necessity b/c alternative
was death in sinking ship.
C. Jackson: D was father who kept sick daughter at home. Violated school
attendance laws. Permitted ot use necessity defense.
D. Majority of states have adopted necessity into statute as per MPC: choice of
evils.
1. MPC: mere belief, even if unreasonable, is sufficient. But if D was neg
in believing or creating situation, then defense cant be used against a crime requiringneg.
Same for recklessness. Can only be defense against higher mens rea like purpose. Treats
same as SD.
a. If D created the situation, then no defense of necessity.
b. 3 conditions:
- balance of harms where threat must be real, not believed.
-harm of evil sought ot be avoided > harm of evil that
statute was menat to protect against. Former is individualized, latter is generalized. Ex:
harm of evil meant to be protected against = general espcae of any prisoner, not just
Ungers escape. Whereas harm of evil sought to be avoided is death or GBH to Unger.
Latter harm of evil meant to be protected against also can be the weakening of the laws
deterrence effect, like deterrence of laws prohibiting prisoner escape.
2. In NY, justification defense = necessity defense. Requires imminence
of real threat and clear outweigh of utilitarianism. Too narrow, so never used.
3. Illnois statute only requires simple outweigh and reasonable belief of
threat. Also does not require imminence. Broader.
Are lives equally valued? Deliberate taking of life is perhaps higher harm than
manslaughter.
E. Medical Mecessity
1. judge says no defense of needed marijuana
2. Oakland Cannabis Buyers Co-Op: Ds charged with selling marijuana
and claimed necessity. Judge said no defense to crime of manufacturing and distributing
39

marijuana, b/c Congress already outlawed it. Dicta of no necessity defense outside of
statutory regulation permitting such a defense.
F. Schoon; no necessity defense to civil disobedience. Action is unlikely to
change Congress mind. There are alteranatives of seeking legislative change. Mere
existence of law is not harm.
G. NO necessity defense for homicides. Includes hypos of transplant, trolley,
flood and climbers.
H. Necessity is technically available to lesser crimes like GBH.
I. Hill: D killed abortion doctor. No necessity defense b/c evil trying to avoid =
abortion, which is not an evil according to SCOTUS
B. Unger: D claimed self-defense during crime of escape when threated with
death by fellow inmate.
1. Holding: jury can consider Lovercamp elements as mere facors, not
strictly necessary elements.
2. Here, D was entitled to submit defense of necessity to jury.
3. Dissent: availability of defense would encourage more escapes.
C. is not Duress or Insanity, which are Excuse defenses. Is not Self-Defense,
where there is no alternative but to take life.
D. Lovercamp Elements of Necessity:
1. situation or threat of imminent harm
2. No time to complain to authorities, or past complaints were futile
3. No ability to resort to courts
4. no evidence of force used towards other innocent people
5. prisoner immediately reports to authorities when attained safety
E. Traditional Elements of Necessity
1. Threat of imminent harm
2. prisoner did not bring about situation
3. utilitarianism. Breaking laws > staying.
4. legislature has not balanced harms in a way adverse to prisoner.
F. Possible Laws for Necessity as Defense To Homicide
1. If redirecting a threat, then permissible (trolley)
2. Creating a new threat is not permissible (eg. Transplant)
3. Double Effect: impermissible to intentionally cause death, or to cause
death as means to achieve goal. Permissible to use action where death is not goal, but
rather unfortunate consequence. Ex: bombing to induce surrdenders, not to kill.
G. Public Commit Against Torture v. State of Israel
1. Tortue: ticking time bomb scenario, need to torture to find location.
Assumptions include that suspect will tell the truth, that interrogater has clean hands,
thatn there is no other way to save people. Slippery slope justification for tortue. MPC
treats all lives equally.
VI. Defense of Duress
A. Complete defense under traditional law. Threat of:
1. immediate / imminent death or GBH
2. to oneself or to another, such as a close relative
3. threat is such that its reasonable to heed
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4. the crime charged isnt murder*

*MPC says duress can be defense to murder, ad some jursidictions agree. NJ allows
duress to reduce murder to manslaughter. CA says that duress negate general criminal
capacity to commit the crime, so negates an element of the crime and replaces burden on
P. (Contrast with necessity, which is aff defense where burden is on D.)
B. Toscano: TC said that threat was not imminent and not explicit enough to be
GBH. Holding: diuress can be defense to crime other than murder if D engaged in
conduct b/c coerced by unlawful force which a person of reasonable firmness in his
situation would have been unable to resist.
C. MPC: Dures = actor coerced by force that a person of reasonable firmness in
his situation would have been unable to resist. Situation = same standard for recklessness
and neg, i.e. physical traits like size, age, strength or health but not mental traits like
temperament, mental deficiency, immaturity, battered womens syndrome. Duress is
excuse defense.
D. Reasons for Duress: excuse b/c person did not have fair opportunity to
conform to law. Threat was of such large magnitude that most people wuld have givne in,
including people of of reasonable firmness.
E. Duress is complete excuse. Contrast with provocation, where provoked D is
still blameworthy.
F. Justification?
1. Lopez: D1 flew helicopter with Lopezs gf. Gf claimed fear and duress
from other inmates. D1 was accomplice. Can D1 use duress? If duress is excuse, then
excuses are personal so tno defense to D1 b/c no threat to him. But if duress is
justification, then Gf was doing something that was justified so accomplices acts are also
justified so yes defense. Justifications extend.
2. Necessity = avoiding greather harm which must be shown. Duress
Excuse = cannot be blamed so do not need to show greater harm avoided.
G. Hypos
1. driver under duress by robber must drive off road or kill 2 people. Evils
are equal because 2 bystanders equals 2 people in car. If duress can be applied to
homicides, then not really lesser of two evils.
2. drivers brakes fail. Drives off road and kills 2 people. No choice of
evils defense, b/c not lesser of 2 evils. No necessity defense b/c brakes are non-human
force.
3. painter works on masterpiece for 7 years. Terrorists threaten to burn
paining unless painter helps them. Lives are not worth paintings, no lesser of 2 evils
defense.
4. Leonardo threatens Toscano, who has fear of rats, with released rats in
his apartment. Under MPC, Toscano does not have fear which person of reasonable
firmness would fear. In situation = size and physicality, but not weak temperament.
5. Unger joined Aryan Brotherhood, who plans jailbreak. Unger told to
engage in phony fistfight while others escape. Unger refuses, is threated with GBH.
Under MPC, Unger recklessly put himself in dangerous position, so forfeits duress
defense.
H. Anderson: person faced with death always has choice. Law should require
person to choose to resist. This is policy for duress as no defense to murder.
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III. Voluntary Intoxication as Defense

A. Sometimes, intoxication negates required mens rea for crime.
B. Permitting intoxication as defense will decrease many convictions.
C. Extreme Position 1: Williams: intoxication is defense b/c otherwise would be
punished for drunkenness.
D. Extreme Position 2: Roberts v. People: D has purposely impared his selfcontrol.
E. I wouldnt have done it if I was sober not a defense.
F. Hood: intoxication is no defense to crime of assault with deadly weapon,
regardless of general or specific intent.
2. Specific Intent : description of intent or additional consequence. May be
negated if drunk.
3. General Intent: description of act only. Intoxication is not defense to
crime of general intent.
4. Holding: intoxication is no excuse to assault with deadly weapon, based
on policy reasons (not based on intent reasons).
5. Later, CA Supreme Court said that assault with deadly weapon is
general intent crime.
G. Stacio: intoxication can only be defense to premed murder by knocking out
premed. Intoxication cannot be used as defense anywhere else, regardless of general /
specific intent.
H. Rape: traditionally, rape is general intent crime, so no defense of intoxication.
But attempt is specific intent crime, so there is a defense of intoxication for attempted
rape.
I. NJ: criminal acts are forseeable results of drunkenness, so voluntary
intoxication is no defense in NJ.
J. MPC: intoxication is defense if it negates an element of the crime.
1. Exception: if mental state is recklessness, then intoxication is no
defense.
2. Policy: risks of being drunk are well known. So risks created by
becoming drunk = risks of drunken behavior.
3. Intoxication is not mental disease for insanity purposes.
IV. Involuntary Intoxication Defense
A. can be aff defense if results in insanity defense under MPC, a reduced ability
to know that your conduct is wrong.
B. Hypo: alcoholic. Satisifes legal insanity. Traditional law and MPC both allow
insanity, but traditional law says no defense wrt to a temporary condition, while
MPC says as long as not self-induced, then temporary insanity from drunkenness
is a defense.
C. Edelhoff (Montana): statute prohibited evidence of intoxication to negate mens
rea as element of offense. Some state permit intoxication evidence to deter
drunkenness. Reduces Ps burden of showing intoxication.
1. Under Montana Statute: deliberate homicide = purposely or knowingly.
Is not negated by drunkenness.

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D. Hypo: burden of intoxication proof on D. Standard is preponderance of

evidence.
1. no knowledge or purpose
2. clear violation of due process b/c shifts burden of proof of an element of
the crime to the D.
E. Intoxication as defense in US is only allowed in a few states. 1 state said
complete defense, 2 states say allowed only as mitigation, 10 forbid defense, 27 states say
can only use as defense to certain crimes, 21 states (common law) say that can only use
intoxication as defense to specific intent crimes, not general intent crimes.
IV. Insanity
A. a legal category, not a mental one
B. an Excuse defense, only abolished by 3 states. Does not negate mens rea
element of crime.
B. civil commitment to mental institution
C. Standards: reasonable doubt ,then clear and convincing evidence, then
prepondence of evidence (> 50%)
D. NGRI: not guilty by reason of insanity. Result is that D will be commited to
hospital. Alternative to insanity: guilty, but mentally ill.
E. Hypo: D is mentally ill and shot someone, thinking V was Satan. Here, can
negate mens rea b/c D believed V was Satan (non-human).
F. Yates: drowned 5 children b/c believed they were Satan. Found NGIR. Defense
did not cancel out mens rea, but instead acted as an aff defense.
G. Porter (New Zealand): useless to punish (or deter w/ threat) the people who
cannot be influenced by threat of punishment.
H. Incapacitiation Reasoning: good to lock dangerous people up
I. Retributivists: criminal punishment should not apply to insane people who do
not deserve punishment and arent responsible. Capacity for reason is impaired.
J. Pope: Pope did nothing while mom injured child. Mom was held insane.
K. MNaghtens Definition of Insanity: [majority rule]
1. D must have mental defect or disease, such that he (1) did not know
nature and quality of act, or that (2) he did not know act was wrong.
a. Nature and quality of act = physical attributes of act.
2. presumption of sanity. Burden is on D to show that sanity does not
apply. 1980: majority of states say that P has burden to show that D was sane. Today:
most states put burden on D beyond perpondence of evidence at fed level, beyond clear
nad convicing evidence at state level.
3. problems with MNaghten Rule:
1. reliance on mental defect, whose defnt is unclear.
2. variatns of mental defect: sociopathy, antisocial personality disorder,
psychopathy.
3. Is Wrong legally wrong or morally wrong? England says legally
wrong. If morally wrong, then makes it easier to prevail on insanity defense b/c
ambiguity increases. Current instruction: either legally or morally wrong is okay.
a. Morally wrong = according to societal standards.
4. all or nothing: either did or did not know that act was wrong.
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5. test of wrong is purely cognitive, not voliational. But there exist cases where D
knows act was wrong, but was unable to resist urge to act.
a. Hatfield: D went to theater with gun. Shot at king but missed. Claimed
insanity and identity as second Christ. Watned to put to death by state. Found NGRI.
Udner MNaghten, D knew nature of act and knew act was morally wrong by societal
standards, and also obviously legally wrong. Under MNaghten, would be qualified as
sane!
J. M-Plus: adds in volitional prong, asking if D was unable to resist act
a. mental defect results in: (1) volitional prong where D was unable to
conform (irresitable impulse), or (2) cognitive prong where D did not know act
was legally or morally wrong.
b. Stress (1988): D had football player son who objected to Vietnam war.
D became convinced of conspiracy between football league and US govt. Killed wife in
order to gain public forum to unveil conspiracy. Court found existence of mens rea.
Insanity and mens rea can co-exist in 1st degree.
c. volitional prong is sometimes abandoned in variations of MNaughtens
and M-Plus. Problems with volitional prong include difference between didnt and
couldnt, as well as unable to distinguish civilly commited D from recidivist.
J. Lyons: didnt refrain from killing distinguished from couldnt refrain from
killing
a. Majority of psychologists say cannot measure capacity for self control,
so volitional prong should be eliminated.
K. New Hampshires Durham / Product Test: alternative to MNaghtens and MPlus: D is NGRI if criminal act was product of mental disease or defect.
Difficult to apply, abandoned in 1992 because gave too much power to
psychiatrist.
L. MPC [minority rule]: mental disease or defect that results in: (1) D
lacking cognitive prong of substantial capacity to appreciate the
wrongfulness or criminality of conduct, or (2) D lacked volitional prong
of substantial capacity to confirm to law
M. Fed statutes definition of insanity as aff defense is strictly defined: severe
mental disease or defect which causes D to be unable to appreciate nature and
quality of act. Stricter than Lyons b/c requires severe mental disease and
places burden on D.
N. Sweeny: D killed Lowenstein b/c claimed Lowensteins voice in head. Under
MPC, there was mental disease. Sweeny did appreciate wrongfulness of act
b/c tried to conceal. His belief in Lowensteins voice does not negate his
ability to appreciate wrongfulness. D had also been expericing voices in head
and had not killed for 10 years, so had capacity to conform to law.
O. Other Problems with MPC:
a. Barefoot v. Estelle: life or death decision was decided on risk of
recidivism. Recidivism decided by psychologist in expert testimony.
b. Should insanity be an excuse defnse?
c. Alternate defense of disadvantaged background.
d. Variations in prongs are irrelevant to results.
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I. Diminished Capacity
A. failure of proof defense. Negates mens rea, an element of the crime.
B. MPC: allows Diminished Capacity Defense only for specific intent crimes
1. specific intent includes 1st degree premed. Depraved Heart requires only
recklessness, so is not specific intent crime.
2. Policy: specific intent crimes include lesser-included offenses. For
example, burglary has lesser included offense of B&E. If D is not convicted of burglary,
can still be convicted of B&E. Want people to be convicted of something if there is
danger.
C. Arizona: rejects Diminished Capacity entirely.
1. can give evidence for insanity defense only, not for purpose of negating
mens area (i.e. Diminshed Capacity). Reasons include: there is too much variation in
identifying mental illnesses; there is potential to mislead trier of fact, due to misleading
classifications; there is too much weight on expert testimony.
2. Dolinko says these args apply to insanity defense, not to diminished
capacity which is dependent on the existence of a mental state.
3. (Holding) Any evidence offered for insanity placed burden on D. D gets
civilly commited. Contrast with Diminshed Capacitys burden, which is on P. D gets
to go home.
C. D was unable to form mental state to commit the crime
D. Hypos
1. mental disorder decreased capacity to premed. Can only be convicted of
second degree murder.
2. intent to kill deleted by diminished capacity. Can be convicted of
manslaughter at most.
E. Whetmore: d had mental disease and thought it was his apartment. Did not
have intent to steal, so cannot be convicted of burglary.
F. Dechelle: D claimed psychiatric testimony is unreliable.
G. Brawner: can use diminished capacity to negate mens rea.
II. Diminished Responsibility
A. aff defense
B. mental impairment that doesnt reach level of insanity. Should not be held
responsible. No capacity, so drops down to manslaughter.
C. Disfavored in U.S. England allows only as defense to murder.
1. Exception: If murder includes element of malice, then Dimished
Responsibility can negate malice and therefore function as a lack-of-proof defense. Or,
malice is not a mens rea so Dimished Capacity functions as aff defense.
D. MPC: rejects Dimished Responsibility.
III. Defnese of Extreme Mental or Emotional Distress
A. allowed by MPC
B. drops murder tomanslaughter
C. is an aff defense
D. CA law: rejects Diminished Capacity as both failure-of-proof defense and as
aff denfese. No reduction of manslaughter allowed.
45

1. Exception: Dimished Acuality: mental impairment less than insanity can negate
mens rea like premed. Premed in this case includes meaningful appreciation of crime /
gravity of act.

Professor Writings
Dolinko supports consequentialism, and refutes the following 3 arguments of
retributivism:
1) Consequentialism gives people irrelevant and improper incentives to act relative
to the crime they commit. Dolinko says that all criminals are given an accurate
assessment of the costs and benefits of breaking the law, so the incentives and
punishments of consequentialism are not irrelevant.
2) Consequentialism punishes people in a manner not determined by his own
choices, decisions and actions, but rather by those of the punisher. Dolinko says
that criminals are punished precisely because of their actions, choices and
decisions. But even not treating a person according to their own choices is not
immoral, because it is our collective assessment of crimes which gets applied to
each individual. Personalized judgments of criminals presents too much of an
implementation burdern.
3) Punished person cannot share in the purposes of those who do the punishing.
Dolinko says that criminals can agree to the general purpose of deterrence, just
not for their particular case.
My thought: Dolinko subscribes to theories of contributory tort, in that criminals are at
least partly at fault for the consequences they suffer.

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