MPC/page number index

Accomplice liability 2.06 pg. 14

- 5.01(3) Accomplice liable though P is not p.
Actus reus (vol. act; omission; possession) 2.01 pg. 3
Attempt liability 5.01 pg. 16
Causation 2.03 pg. 8
Criminal homicide 210 p. 10
- Criminal homicide 210.1
- Murder 210.2
- Manslaughter 210.3
- Negligent homicide 210.4
Duress/coercion 2.09 p. 26
General definitions i.e. material element 1.13
Insanity 4.01 p. 28 (Diminished Capacity p. 29

Intoxication 2.08 p. 10
Mens rea 2.02 pg. 5
Mental disease or defect 4.01-4.03
Mistake of fact 2.04 p. 6
Mistake of law 2.04 p. 7
Necessity/choice of lesser evils 3.02 p. 22
Provocation (CL version of MPC EMED) pg. 11/12
Rape & Related offenses 213.1 p. 20
Self-defense 3.04-3.09 p. 23
- Use of force in self-protection - 3.04
- Use of force for the protection of others 3.05
- Use of force for the protection of property 3.06
- Use of force in law enforcement 3.07
- Mistake of law use of force in self-defense 3.09

Look for failure of proof defenses BEFORE affirmative defenses

USE AS MANY FACTS AS POSSIBLE and try to INFER mental states from Ds actions
With accomplice liability (2 or more people), do principal first and only then do accomplice; always look at failure of proof
defenses before affirmative defenses; mention ALL viable defenses even if they are losers. ALWAYS LOOK FOR POTENTIAL
ACC LIABILITY WHENEVER MORE THAN ONE PERSON INVOLVED. (sometimes Ds could be either accomplices or
principals; i.e. hypo of people paying to watch a dog fight that was organized by another. They can either be the principals (b.c
their payment caused the fight to happen) or the accomplices.
- For homicide crimes: start with principal, then accomplice. Start with worst possible crime and work down.
When a statute contains several components (i.e. if D does (a) (b) or (c) do NOT try to resolve ALL of them unless Q asks for it.
Look to the sections of the statute that are MOST RELEVANT to what D has done or not done so far and evaluate liability in
terms of that section alone.
When statute says cause as the actus reus, then the AR is ANY ACT THAT CAUSES THE RESULT IN STATUTE. After
IDing the AR, do causation analysis (is but-for test satisfied? If so, is there an intervening cause? If Y move on to proximate
cause analysis; if N then causation is done)
Where the statute is silent on MR, under CL principles look to whether it is malum in se or malum prohibitum
MPC 1.13(16): reasonable can = EITHER reckless OR negligent
Sample problem with accomplice/attempt liability:
Whoever, without legal authorization, possesses or distributes sth w/o prescription P and A charged with attempt.
For P: look at failure of proof defenses to Attempt AR, culpability of target crime, or attempt MR
For A: look at whether A satisfies accomplice to attempt to the crime (but look at whether A can be principal this only possible
if she has done the conduct) is there accomplice MR, accomplice AR?
1) Look at whether principal is liable for attempt
If so then look at whether accomplice is liable AS AN ACCOMPLICE (do not evaluate As liability for attempt)
be sure to mention whether A is guilty or not under CL DERIVATIVE LIABILITY
Two different ways of thinking in the criminal law:
Common law/non-MPC: (legal principles articulated by the court, the original crime/defense definer
Statutory (MPC) analysis: legality principle: the legislature, not courts, are the only legal authority that can
legitimately define crimes in the U.S. need to give people fair warning so that they have a reason to know
CRIME ELEMENTS of statutes Govt. must prove all elements of the statutory crime at trial beyond a reasonable doubt
Mens Rea; Actus Reus/conduct element (any positive act or failure to act, which = failing to prevent the social harm from
occurring); Atted. Factual circumstance; Result: the social harm caused by the actus reus
- All elements of a crime must occur contemporaneously: A/R, A/C, and M/R

- Only some crimes have a result element, i.e. death of human being in homicide crimes. Crimes that do have a result element
also require proof of a fifth element: causation between the actus reus and the result
-Social harm is the result; the nature of conduct that gets one there is irrelevant. (Often MR is relevant to establishing
culpability as to result, for example for murder). Causal link between A/R and result
Always do STRICT CONSTRUCTION of statutes (legality principle). However, if a statute could be interpreted two ways,
interpret it in the fashion that is most favorable to D.
With cases, break down the statute into elements: MR/AR/AFC/Result With AFC, look for any that can be disputed by D
(i.e. if there is an argument and counter as to why there is or is not a failure of proof defense as to that element)
When there is comma separation in a statute, it can be disputed that the MR in the statute goes to that element that is
separated by commas (there may be legislative intent that no MR go into that element, just to other AFC that element
would be strict liability in that case, for social policy reasons; i.e. social harm of the conduct that would result is greater).
However, under MPC, if the element is material then SOME MR must go to it, at least recklessness & negligence.
Theories of Criminal Liability/Principles of Punishment Why Criminalize Some Conduct
Criminal Punishment: The states deliberate infliction of human suffering on the offender in a manner that communicates a
societal judgment that he is morally culpable for his conduct
- As opposed to civil liability, which is not concerned with moral culpability. Criminal punishment seeks to impose
suffering to community moral condemnation of Ds acts
- Judges conviction: criminal punishment is the states deliberate imposition of human suffering, because we believe the
criminal deserves it Criminal laws job is to vindicate some community moral norms
- Crim pun does not communicate moral condemnation of past behavior, but only looks to prevent future behavior
Making a criminalization decision: Costs of criminalizating behavior (legal costs, law enforcement, etc.
- Criminal law should be the last resort to deal with a social problem. There are other ways to communicate moral
condemnation
Theories that can be used to provide a moral justification for criminal liability (substantive guilt) and crim. punishment
I.
Retributivism: based on moral culpability of D, the just deserts theory backward-looking.
a. Focus on Moral culpability = D is fairly blamed for his conduct and deserves moral blame for his actions
b. CP is justified when the state demonstrates Ds moral culpability for the crime and proof of moral respons.
c. D must be a moral agent who must have a fair opportunity to avoid criminal conduct, and has the physical
capacity to comply with community moral norms (insane/immature Ds dont count)
d. The state has a moral obligation to impose punishment on all culpable offenders even if such punishment
generates a net social welfare loss in the future
II.
Utilitarianism: Provides moral justification for any social practice, rule, or act based on a showing of how such
practices, rules, or acts generate a marginal increase in our future social welfare (net social welfare gain)
a. Unlike Ret, looks to future welfare of society - Maximize happiness and minimize pain
b. Criminal punishment is justified if, and only if, the future benefits of imposing CP on the offender outweigh
the social costs generated by its imposition.
c. Better for explaining pro and con factors of criminalization
d. Goals/potential benefits of CP for utilitarians:
i. General deterrence: convince the community to forego criminal conduct in the future
ii. Specific deterrence: deter criminal conduct by the offender in question (however, if the crime was
committed under extreme circumstances, it is unlikely that it would deter the offender from
committing the crime again under similar circumstances)
iii. Incapacitation: removing the offender from the public ID individuals prior criminal histories to
make a judgment about who is the most likely to engage in future dangerous behavior, and incarcerate
them to lessen the danger to the rest of us
iv. Norm reinforcement: it is never justifiable to engage in this type of conduct
v. Rehabilitation: alter character traits that generate a propensity to commit future criminal acts
vi. Revenge: punishment of the offender satisfies victim, family member, and societal desire that criminal
pay for his wrongdoing (DO NOT confuse with retributivism)
e. Expressivism and norm reinforcement: a hybrid of retributivism and utilitarianism that expresses societal
condemnation for an action most legislatures combine the two theories
III. PROPORTIONALITY PRINCIPLE re: sentencing: Derives from retributivism

Degree of punishment (maximum ceiling and minimum floor of punishment) for any crime must be proportionate to
the degree of social harm caused or risked by Ds conduct, and the degree of Ds moral culp. for engaging in conduct
Sentencing: D convicted of a noncapital felony may receive a sentence consisting of a term of years of imprisonment,
monetary fine, or combo (alternative noncarcerative sanctions, i.e. comm. service or shaming, are permitted sometimes)
1. States sentencing structure should be consistent with the theories of punishment that are at the foundation of
that jxds criminal justice system
2. MPC 1.02: sentencing provisions are intended to prevent the commission of crimes (deterrence) and
promote the correction and rehab of offenders (rehabilitation) sentences should differentiate among
offenders with a view to a just individualization of treatment
Previously: emphasis on indeterminate sentencing structure: judge defined outer reaches of a sentence,
but parole board could release D before completion of sentence if D satisfied rehab goals
3. Currently: movement toward determinate sentencing (offenders sentence determined at the time of sentencing;
parole officers cannot reduce sentence) influence of movement toward ret; disillusionment w/rehab; pressure
from public during high crime periods for longer prison sentences
4. Look for mixed model: serve both ret (focus on culpability) and ut concerns

LEGALITY PRINCIPLE: a crime should always be defined beforehand by the legislature

- Fair warning to citizens so they can conform their conduct appropriately to avoid criminal behavior
- Ensure that crimes are solely the province of legislative definition
- Ensures against arbitrary discretion by prosecution or law enforcement (w/o guidelines, police could arrest someone
and then hope for retroactive court decision that they properly arrested someone
Defenses Always look for failure of proof defenses BEFORE affirmative defenses
I.
MPC 1.12: No person may be convicted of an offense unless each element of the offense is proved beyond a
reasonable doubt
II.
Failure of Proof: defenses that, if believed by the fact finder, negate an element of the crime or at least raise a
reasonable doubt as to the existence of the element
a. Mistake of fact (when negating a mental state essential to the crime charged); mistake of civil law norms;
voluntary intoxication (sometimes); mens rea model of diminished capacity defense; involuntary act/omission
(if TRULY physically incapable of performing the AR)
III.
Affirmative: defenses that concede the existence of all elements of the crime beyond a reasonable doubt BUT raise
some independent reason why D should not be found guilty the act was not wrongful
a. Full affirmative: Justification (choice of lesser evils/necessity, self-defense see below), excuse (duress),
mistake of law (i.e. the exceptions to mistake of law rules under MPC)
b. Partial affirmative: diminished responsibility (not in U.S.; only in UK, where murder manslaughter);
provocation (CL)/EMED (MPC) mitigates from murder to manslaughter, mistake of law (2.04(3))
c. Special affirmative defenses applying only to particular types of liability
i. Accomplice: withdrawal and negation of aid
ii. Attempt: voluntary & complete renunciation of criminal purpose (only under MPC)
d. Justification: Ds conduct is justifiable on this particular occasion because the conduct is:
i. Necessary to avoid a greater harm that would have occurred but for D acting as he did (i.e. necessity
defense, choice of lesser evils (i.e. Dudley: conduct requirement is satisfied (someone killed), eat the
young boy or die themselves); or morally permissible under these particular facts
ii. This speaks to the rightness of the acts: says that they had a good reason to act as they did. Unlike an
excuse defense, does not admit act was wrong.
iii. MPC 3.02 affirmative defense
1. (1)(a): defense when there is choice of lesser evils and crime avoids a greater social harm
2. (1)(b): neither the MPC or the law defining the crime provides exceptions or defenses dealing
with the specific situation involved
3. 1(c):legislative purpose to exclude the justification does not plainly appear
iv. MPC 3.02(2): when the actor was reckless or negligent in bringing about the situation requiring a
choice of evils, or in appraising the necessity for his criminal conduct, justification defense is
unavailable for offenses requiring recklessness or negligence
e. Excuse: Or D, while committing a wrongful act, does not deserve moral blame because of some excuse which
shows either that D is: (1) not a morally accountable agent (i.e. immaturity/insanity a fundamental defect in
the actor) OR (2) Is a morally accountable agent but was denied a fair opportunity to avoid committing the
wrongful act (i.e. duress or coercion)

i. Excuses negate Ds moral culpability for the crime: the act was wrong, but there is a reasonable and
negating excuse for their actions (vs. justification: speaks to the rightness of the act)
THE ELEMENTS OF A CRIME
I.
ACTUS REUS conduct (AR) both positive acts and omissions (failures to act)
a. A voluntary act: conscious willed bodily movement (MPC 2.01(2)(d)) includes verbal speech [Vs.
involuntary: reflexive actions (i.e.. epileptic seizures), sleepwalking, hypnosis, being carried somewhere (i.e.
Martin v. State: Ds conviction for being disorderly in public overturned because officers had carried him to the
public place) however habitual/stressed out actions still voluntary]
b. Concurrence principle: need to prove that mens rea was present at the time of AR
c. A positive, conscious act is purposeful if it satisfies vol act requirement. D is culpable when he had the free
choice to engage in the activity (Exception: duress an aff defense to a coerced voluntary act)
d. CL v. MPC
i. CL: Conduct must be voluntary a conscious, free-willed bodily movement
ii. MPC 2.01(1): D is not liable unless he performs conduct including a voluntary act or the omission to
perform an act of which he is physically capable
1. 2.01(2): involuntary acts: a reflex or convulsion; a bodily movement during unconsciousness
or sleep; conduct during or resulting from hypnosis ; a bodily movement that is not product of
the effort or determination of the actor, either conscious or habitual
2. 2.01(3): Omission: (3)(a): Must be expressly made sufficient by the law defining the office;
(3)(b): there is a duty to perform the omitted act imposed by law
3. 2.01(4): Possession is a knowing act if D knowingly (i.e. voluntarily) procured or received it,
or was aware of his control thereof, for a sufficient period to have been able to terminate his
possession 2.01(4).
a. Basis of crimes of possession: to provide police with a basis for arresting those
whom they suspect will later commit a social harm (i.e. sell drdugs)
b. For strict liability crimes: to satisfy possession, dont need to know what the item is.
Possession is enough dont need MR going to AFC (i.e. if given a box of drugs
but does not know drugs inside, can still be guilty of possession of cont subs
c. Possession can be involuntary (FoP) i.e. if you dont know a drug was put in ur bag
d. However, D can have a failure of proof defense if the thing was planted on him, and
he did not have enough time to get rid of it after she learned of it; OR if D received
the package believing it was something else (i.e. talcum powder not cocaine) and
thus he did not have MR going to AFC of cocaine
e. However, if given a box of drugs but he does not know there are drugs inside
e. The values of requiring conduct
i. Actions are the best evidence of what D is thinking or desiring (Cunningham)
1. Indiv. autonomy: 1st Amendment freedom of thought no moral blame for thought alone
2. Deterrence: act requirement deters people from acting out criminal thoughts and desires
ii. Avoid punishment based on status alone; status does not confer culpability without action. However,
any act that flows from a status can be. (Robinson v. CA: a CA statute criminalizing being an addict
unconst.; Powell: G for appearing in public while drunk; being alcoholic was not a defense).
iii. Providing standards to control law enforcement discretion
iv. Fair warning/legality principle: Respecting the moral agency of the individual by deferring state
coercive intervention until moral agent chooses to act, thus depriving them of their liberty
v. Criminalizing conduct: criminal punishment should be the last resort. Punishing too broadly weakens
the moral credibility of community condemnation conveyed through the punishment
f. Time-Framing: - can look to an earlier voluntary act
i. This only works when you have an involuntary act problem and the earlier voluntary act happens to
satisfy the AR element of the statute youre charged with- allows for more leeway for prosecutorial
discretion in charging
ii. Majority: Include a voluntary act of relevant conduct at some point, even if some part of the act was
involuntary and was the actual and proximate cause. (Decina: epileptic who had a seizure while
driving and killed people). MPC: conduct must include a voluntary act
1. Casts the net wide, and allows for checks of prosecutorial discretion and jury decision-making
iii. Minority: Some jxds require that all acts in a defined crime be voluntary (i.e. Martin (72): police
brought man to hwy when he was drunk and disorderly. AL court ruled that both acts had to be vol.
1. Tougher on prosecutor and displays a skepticism of the two checks above

2. Martin would have been liable under MPC; court could have opened up the time frame to find
voluntary conduct
iv. Felony murder rule: Durham (701): felony used for culpability analysis must be performed during the
transaction/occurrence of a felony murder. Cant use felony that occurred prior (in Durham, Ds had
already completed the felony of stealing a car)
g. Omission: failure to act where there is a legal duty to do so definition 1.13(4).
i. When statute has omission but silent as to MR: read in recklessness for MPC and awareness under
CL - D must be aware of the facts triggering a legal duty to act. If not, D has FoP negating MR
ii. An involuntary omission is a failure of proof defense: if you are physically incapable of performing
the positive action you are legally obligated to perform, then A/R element is not met (i.e. if D is in
shock, can argue physical incapability but might just mitigate, not exculpate)
iii. It is not a failure of proof defense to say you did not know of your legal duty. He has fair warning
through community moral norms standards. Prosecution does not have to prove knowledge of the
legal duty, just of the facts that trigger a legal duty to do something.
iv. Recklessness is the lowest standard for omissions: negligence means that anyone can be held
criminally liable. D must be aware of the risks, not just a reasonable person.
v. For knowing omissions: do not need to prove knowledge of the legal duty to act, but of the facts that
trigger the legal duty to do sth - D has had upbringing education of min. moral constraints
vi. Statutory: the people who have a duty to act, and the positive action they have a duty to perform, laid
out in a statute (TX statutory omissions only Billingslea v. State, 11)
1. Every jxd except TX recognizes that legal duty can come from both statutes and CL.
However, there is a lack of fair warning with relying on CL legal relationships giving rise to
a duty to act. Duties must be articulated in statutes.
vii. MPC: 2.01(3): omissions only legal if it is statutory or the law otherwise imposes a duty to act
viii. Common law legal duties to act: Contractual (i.e. hired to take care of someone Jones 123-124:
judge had failed to req. jury to find that J had a legal duty to care for the child who died); Special
status relationship (CL): i.e. parent-child, husband-wife; Voluntarily assuming care of someone that
prevents others from helping the victim; Employer-employee; Individual created the harm to P
1. Civil statutes: Bad Samaritan laws: crime to not aid in certain situations
ix. Problems with omissions:
1. Failure to take positive act does not give people fair warning that they are under obligation to
undertake some positive action
2. A moral duty does not = a legal duty there is no fair warning when there is just a failure to
do something in general.
3. Could allow arbitrary prosecution and police arrests
II.

MENS REA must prove MR as to ALL material elements of the crime (unless contrary leg. purpose)
a. Traditionally: Faulkner, Cunningham: original view of MR: D is guilty of all acts that flow from his original
criminal act, whether he intended those acts or not.
i. General guilty mind unlawfully, maliciously, wicked
ii. After Faulkner: Shift to the notion that MR must be located in a particular crime definition, and D
must have a guilty mind for each separate crime.
b. Modern view: culpability must tie into element of the crime, included in the statute. MR of one crime is
insufficient to satisfy the MR of a different crime
i. Lacking any confession from D, need to infer Ds mental states from his actions and from the
objective circumstances
ii. If a statute mentions two mental states, go to the easiest to prove (lowest)
c. The higher the MR that can be proven, the worse the culpability of D and the worse the punishment
d. ** When a higher MR than negligence can be shown, ALL LOWER MR can apply as well
e. Common Law vs. MPC
Common law GI default
MPC 2.02 Recklessness default (higher than CL default
of GI ) **
1. Specific intent: particular kind of motive prosecutor must
1. Purpose: Ds conscious object to engage in conduct or to
show D had at the time of the act
cause result; aware of AFC or believes or hopes they exist
- In a specific intent crime, the offense defines specific
2. Knowledge: D is aware that AFC exist, and that his conduct
behavior D must engage in, along with a particular state of
is proscribed; and he is aware that it is practically certain that
mind that must accompany that behavior need proof that
his conduct will cause a result that is an element of the crime.
DOES NOT INDICATE Ds desire that sth happen

Ds conscious object is to cause the social harm. If that state of

mind does not exist then D is NG.
- Often IDd by with intent or purpose to do X. I.e. larceny:
intent to permanently deprive owner of his property. Do not
need to prove the result occurred, just that he had the intent to
take it.
- Do some future act/achieve further consequence beyond
conduct, or definition of crime provides D must be aware of
statutory AFC
- Generally equated to MPCs purpose or knowledge
2. General intent (CL default) a morally blameworthy
mindset
-Generally equated to MPC recklessness or negligence
- Used in mala in se crimes
- Lower moral culpability than SI crimes
- malicious = reckless (Cunningham 204: stole gas meter
not reckless as to result of death)
- If the statute has no MR and no explicit specific intent, it is
probably a GI crime
3. Strict liability: No M/R in the definition of the offense
dont have to prove a culpable state, just the objective
elements of the offense
- Usually apply to heavily regulated economic, public
health/welfare (mala prohibita) crimes criticize morally
neutral behavior for deterrent reasons. If statute is silent as to
MR for mala prohibita crime, then court will read in
legislative silence on MR as deliberate
- Directed toward people who voluntarily take on the business
activities they are pursuing, and they are in a position to
prevent it
- Less serious penalties; Less moral stigma of conviction;
Conduct being regulated by these crimes does not trigger
serious community moral condemnation; the goal is just to not
encourage these kinds of offenses involving morally neutral
but socially undesirable conduct
- Can be applied to part of a general/specific intent crime
(i.e. whoever knowingly distributes pot within 10 feet of a
school can argue statutory construction as to why it
would be strict liability or whether a MR can be read into it
- Vicarious liability: Anyone in a position of responsibility
who has the power to prevent the unwanted harm can be
charged D did not do the conduct elemen, which was
satisfied by another, but is still liable (i.e. Park omission of
failing to prevent contamination, Dotterweich responsible
relation test (need to ID in the statute who can be held
vicariously liable). No fair warning problem because a
highly regulated area
- Policy for: prevents dangerous activities; encourages those
who participate to proceed with caution; courts inquiry into
MR of every infraction would be inefficient.
- Policy against: those who arent blameworthy would be
punished; society places blameworthiness as high concern for
upholding social norms -= prosecutorial discretion; dont want
to deter socially useful behavior

3. Recklessness: D consciously disregards a substantial and

unjustifiable risk that the material element exists or will result
from his conduct
- The risk must be of such a nature and degree that its
disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in his
situation
- D must both do the act in some socially unreasonable
fashion, and is also subjectively aware of the socially
unreasonable risks generated by his conduct
4. Negligent (unreasonable): D should be aware of a
substantial and unjustifiable risk that the material element
exists or will result from his conduct.
- The risk must be of such a nature and degree that its
disregard involves a gross deviation from the standard of
conduct that a reasonable person would observe in his
situation criminal neg (vs. civil neg: any deviation)
- Shows Ds personal culpability, as long as D had capacity to
think and perceive like the average reasonable person
2.02(3): Offense silent as to MR: recklessness is MPC default
minimum culpability required for every element of the offense
- Why recklessness: indicates higher culpability of D ret.
personal culpability
- No strict liability under the MPC
2.02(4): MR in statute applies to all material elements
(1.13(10): any objective element not related solely to issues of
statute of limitation or jurisdiction only federal statutes) of
the crime, unless there is plain contrary legislative purpose
- Where jxdtl element is central to AR element, it could be seen
as a material element
-Only in state statutes are all objective elements material.
Where the statute is silent, MPC default is recklessness
higher level of culpability than negligence.
- Use first mental state and apply to all elements, unless
statute/grammar indicates otherwise. MR to all material
elements and non-jurisdictional elements. If there is
grammatical separation, the MR in the statute does not apply
to what is in the commas (but could make an argument either
way). Read in recklessness to the separated element.
2.02(5):if the prosecutor proves D more blameworthy than is
required by the offense charged, D should be convicted
- With specific intent elements, that is not an extra mens rea
but an additional purpose that must be satisfied part of the
definition of the crime. Thus, if there is a SI element but none
of the 4 MR terms, read in recklessness.
-No Strict liability (except for civil violations)

4. Mala in se crimes: If statute silent on MR, court will read in

original CL MR for the crime (usually default GI, or purpose
can work) G if possessed morally blameworthy mindstate
strict liability does not apply to mala in se crimes (ONLY
PUBLIC WELFARE CRIMES)
- However, where statute is silent as to MR in mala in se, court
might construe crime as GI as to some elements and no MR as
to others (those which they dont want to permit acquittal for
policy reasons, i.e. AFC of a loaded gun even there was a
reas mistake that gun was loaded, dont want to allow a FoP
defense b/c of the danger
5. Grading: MR doesnt apply in SL
6. MR need not go to all elements
MISTAKE OF FACT can be a failure of proof defense
I.
D is mistaken about one or more circumstances encompassed within the definition of a crime, which must exist in
order for the crime to be committed or for a required specific intent to be carried out
II.
Why sometimes exculpates: D doesnt have the same opportunity to avoid the social harm as he would if he knew
what he was doing freedom of choice undermined. No culpability despite appearances.
III.
Burden of proof is on prosecution; if evidence of mistake of fact raises a reas doubt as to whether D had MR, then
acquittal. However, D has the burden of raising mistake of fact issue.
IV.
Common law
Mistake of Fact
SI crimes
Any honest mistake that negates SI element of the offense, negating required MR(whether reasonable or not)
i.e. Green v. State 185: D did not have intent to steal hogs b/c he thought they were his own)
GI crimes
Reasonable (under the circumstances), non-negligent mistake that negates culpability Govt must prove
that there was any form of negligence (whether criminal (should be aware of substantial, unjustifiable
risk & gross deviation from standard or care of a reasonable person in Ds situation) or civil).
- Even if he honestly made a mistake, govt can just show that D made an unreasonable evaluation of the facts
Ex: State v. Walker: father abducted a child he mistakenly believed was another person was entitled to a jury
instruction on mistake of fact since he did not act w/gen crim intent)
a. Ex. D is charged with rape under the statute: sexual intercourse by a male with a female not his wife
without her consent. If his mistake regarding consent was reasonable, hes NG. If its unreasonable, is G.
Critiques: If unreasonable, denying defense because someone was negligent, a person is not normally
negligent unless negligence was gross. Plus allows someone to be convicted who is negligent wrongdoer as if
he were guilty of intentional wrongdoing.

GI crime
with SI
element
SL crimes
(i.e. stat.
rape)
Attempt
SI crime
with GI
element
Moral
wrongs

A mistake reas. made is a defense only if, on the facts as D believed them to be, no crime would have
been committed (p. 191 D graded on the basis of what was done, not what was thought to have been done)
Mistake must be reasonable/non-negligent
- Some jurisdictions require reasonable mistake and only if facts, as D believed them to be, did not constitute a
crime (i.e. MPC)
No defense
Defense b/c it negates specific intent to bring about a result that is criminally prohibited
Specific intent mistake of fact rule only applies to the specific intent. IF the mistake of fact is relevant to an
element of the offense other than SI, then GI mistake of fact is used.
- Yermian (189): made a mistake about a jxdtl element, which is not a material element. Thus SI does not
apply (as it does to all other elements) but GI, so mistake must have been reasonable. (Under MPC, do not
apply any MR to a jxd/non-material element)
Common law exception to mistake of fact doctrine: i.e. Prince: limitation of the normal rule that reasonable
mistakes of fact are a defense to general intent crimes even if there is a reasonable mistake of fact, if D
chooses to violate the conduct rule embodied in the statute, then there is no defense (SL even though his
mistakes were reasonable, because he chose to engage in a moral wrong that society wants to discourage)

V.

MPC 2.04: Ignorance or Mistake

a. 2.04(1)(a): Ignorance or mistake of fact or law is a failure of proof defense, if it prevents govt from proving
MR as to an element of the crime. If there is MR in the statute that goes to a material element, and D did not
have that MR as to that element, then a defense.
b. Difference from CL: CL provides civil standard for negligence, while MPC MR default is recklessness:
requires that D both be aware of the risk that the relevant element exists and that ignoring it constituted a gross
deviation from the standard of conduct. Requires criminal negligence; worse behavior than civil negligence.
i. Recklessness requires both that D actually be aware of the risk that the relevant element exists, and
jury to conclude that ignoring that risk constitutes crim negligent
c. Grading: 2.04(2): defense of mistake of fact unavailable if the D would have been guilty of another offense had
the situation been as he supposed; but his mistake will reduce the grade and degree of offense of which he may
be convicted
i. EX: thought you were stealing $10 when it was $1000 petty v. grand larceny
ii. Purpose/knowledge as to AFC: mitigating failure of proof
iii. Reckless/negligent as to AFC (i.e. if you COULD have been aware that you were making a mistake
as to attendant circumstance): not a failure of proof

MISTAKE OF LAW: ignorance of the criminal law and the criminality of ones act is no excuse/defense. Evidence that you
did not know the criminality of your actions is not a failure of proof defense.
- The mistake of law must relate to some objective element of the crime
I.
Rationale: Social utility: non-punishment of the ignorant encourages ignorance; Objectivity: permitting ignorance
allows subjectivity: ignorant D can state what law is in their case - Prevents false claims that D was unaware; the
criminal law has criminalized basic community behavior norms where there is considerable consensus about their
content and meaning (i.e. mala in se crimes). You should be morally culpable.; 267: Cultural defense: cant adopt
different and discriminatory standard of criminality
a. Vs. strict liability crimes: Criminalizing conduct unobjectionable to most members of the community
II.
Common Law
a. Ignorance of the criminal law is no excuse general intent rule no FoP defense, so no MR can be negated
by a mistake of law (EX: State v. Fox 208: Fox attempted defense that he did not know that ephedrine was a
controlled substance under law. Court affirmed his conviction because ignorance of law is not a defense)
i. Exception: Lambert: statute requiring registration of felons who are in LA longer than 5 days, offense
was for an omission, duty to act was imposed on the basis of a status rather than activity (living in
LA), and offense was Malum prohibitum. Violated Due Process.
b. Specific intent: if the offense requires a specific intent or other special mental element, a mistake of the noncriminal law that negated required MR is a failure of proof defense (Ex: Morissette: Ds mistake of property
law is defense to larceny b/c requisite intent to deprive another is lacking
i. Mistake of law has to be REASONABLE and RELATE to some objective element to be a defense
1. Rationale: are criminalizing basic community moral norms where there is considerable social
consensus about their content and meaning (i.e. rape, murder mala in se crimes)
ii. Mistake of interpretation of law or element of statute is no excuse
iii. Mistake of collateral criminal law is no excuse
1. Marrero (212): charged with violated a statute prohibiting firearm possession. His status as a
peace officer under another statute did not exculpate him because he did not need to have
his gun while off-duty. G. This was a mistake of the criminal law
2. If you acted on reasonable reliance, or if there was no fair warning, you have affirmative
defense
iv. Mistake of non-criminal (civil) law relevant to the criminality of your conduct can be an excuse
1. Specific intent: a mistake of civil law that negates MR is a defense
2. General intent: ignorance of the law is no excuse
a. E.g. Long v. State; prosecuted for bigamy: he tried to prove that his belief was
reasonable, but a mistake of law is not an excuse to criminal conduct. However, later
Long defense recognized: A mistake of law can be a defense if it shows an absence of
the criminal mind
b. Morissette v. US (249): Mistake of property law (D did not know casings were U.S.
property) was defense FoP as to knowing casings belonged to the govt
i. Mistake of law, if relevant to specific intent crime, is treated as mistake of
fact. However, a court will limit this to mistakes of civil law norms.
III.
MPC 2.04: Ignorance or Mistake

a.

2.02(9): Unless one of the crime elements makes your criminal law ignorance or mistake relevant, it is no
defense. You cannot have the excuse that your ignorance about the criminality of your actions is a mental state.
Denies a defense for ignorance or mistake of the criminal law. Burden of proof is on the defendant FoP
i. Person who commits an act which the law declares to be criminal cannot be excused from
punishment upon the theory that he misconstrued or misapplied the law)
b. If statutes require knowledge of an attendant circumstance do not want to apply MR to an AFC that
makes explicit reference to a criminal law norm, because this would allow ignorance of crim law defense.
COURTS WILL NOT ALLOW FoP DEFENSE BY READING IN AN MR GOING TO AFC MAKING
REFERENCE TO CRIMINAL, NOT CIVIL, LAW NORM
i. I.e. if statute says who has been convicted of a felony but D did not know she was a felon, then
2.02(9) applies because you dont allow mistake of the legal significance of what her conviction
means (that she is a felon). However, can apply MR of the crime (recklessness or negligence) to the
fact of her conviction if you apply those MR to felon, then are allowing a FoP or affirmative defense
to AFC referring to crim law norm.
ii. I.e.: if part of a statute reads whoever knowingly distributes pot within 10 feet of a school the
distance from a school is a fact and you could read in recklessness or negligence if statute is silent on
MR so mistake of law can be allowed there
c. However, limited exceptions: 2.04: Ignorance or Mistake
i. 2.04(1)(a): mistakes of civil law Ds mistake or lack of knowledge about ANOTHER, NONPENAL
law that lead D to make a mistake about the criminality of his actions, is a defense if shown that a
required MR element is missing. It does not matter whether the crime is GI or SI). If there is MR in
the statute that goes to an objective element of the crime, and D makes either a mistake of law or fact
that prevents govt from proving MR to the objective elements, this is a failure of proof defense. This is
the defense to 2.02(9)
1. Fox: convicted of possessing ephedrine, a controlled substance. He tried to argue that he did
not know ephedrine was criminal. However, he would only have a FoP defense if he made a
mistake of fact or law that prevented govt from showing that he knew it was ephedrine
ii. 2.04(3): limited affirmative defenses to mistakes of non-criminal law: exceptions to 2.02(9)
1. Reasonable reliance (Striggles 213) - D relied on official but erroneous statement of law
a. Statement of law is found in official source (Cox 221: relied on police officer)
b. Statement of law is contained in a statute, judicial decision or admin order
c. Reliance on attorneys advice or your own interpretation does not count
2. The statute defining the defense is a) not known to D or b) was not published or otherwise
reasonably made available before D broke it fair notice
CAUSATION - the link between conduct (AR) and result. Both positive acts & omissions can cause result.
I.
But-for test must be satisfied before getting to p.c. P.C. problems only arise when the but-for test is satisfied,
and there is some intervening action by another force or party. When there is NO intervening action, then
there is no reason to get to proximate cause satisfying the but-for test is enough when no interv. cause.
II.
If there is no specific act requirement, can infer that any conduct will do just have to show that conduct caused
the result somehow, even if D did not directly kill someone (for example)
III.
How does causation between Ds criminal conduct and the result element impact liability?
a. Where negative result crime is involved, if no causation shown, then no criminalization of conduct at all
negative risk creation not criminalized? (Robertson: MPC and most states refuse to criminalize negative risk
creation: omission problem: how to criminalize the result of death when parent did nothing, where only
coerced hospitalization would have saved his sons life?)
b. Omissions cause result (failure to act causes result i.e. failure to call 911 when there is a legal duty causes
someones death) then D is culpable if the omission was voluntary
IV.
Where you cannot show that criminal negligence at least caused the bad result, then no crime to convict D of
a. Most relevant for homicide crimes - Grading: degrees of criminal liability and punishment ranges dependent
on the result being caused by the criminal conduct. If cant show causation, major difference in punishment
(manslaughter vs misdemeanor)
- FAILURE OF PROOF DEFENSE: if objective element of causation cannot be shown, D cannot be liable for the actual
crime, but can be liable for attempt D has same level of moral culp whether or not crime happened
Common Law focus on foreseeability
MPC 2.03 focus on culpability
1. But-for test: but for Ds conduct, result would not have
1. 2.03(1): But-for test: but for Ds criminal conduct (NOT
occurred when it did
commission of the crime), result would not have occurred

- Take your victim as you find him, any special physical

vulnerabilities of weaknesses (i.e. if victim dies from a heart
attack as a result of your battery, you are crim. liable - if you
knew of the weakness, extreme reckless indifference MR; but
if not then negligence MR)
2. Proximate cause (only arises when but-for test is satisfied,
but there is some intervening cause from a third party or force)
- Reasonable foreseeablity of harm occurring when it did
and in manner it did (normative judgment)
- Even when but-for test is satisfied, still need to do p.c.
analysis if there is a special intervening force
-Dependent intervening cause: a more immediate causal factor
that would not exculpate (i.e. victim died from an infection
resulting from wounds inflicted by D)
-Independent intervening cause: a causal factor that would
exculpate (i.e. wife goes horseback riding after H tries to kill
her, falls off her horse and dies)
CL: an objective reasonable foreseeability test. Special rules:
--What of special belief, choices re medical treatment
Pelham: court ruled that because NJ statute allows victim
freedom to remove life support, it is reasonably foreseeable
intervening cause free will choices by V (i.e. suicide after
assault) never breaks causation
* Look for intervening and superseding causes between Ds
conduct and victims death: may break the causal chain so that
D is not responsible
- Intervening causes: natural or act of 3rd party was it
reasonably forseeably due to Ds conduct, or an abnormal
coincidence/
c. Transferred intent: if different person or property harmed
than that intended, CL transfers intent to hold D liable
Ex: A shoots B with intent to kill but hits C. Transfer As intent
to C liable for murder this is problematic

when it did
- If the but-for test cannot be satisfied, you have a failure of
proof defense because causation element cannot be shown.
However you could be liable for ATTEMPT
- Exception: simultaneous sufficient causes of result by 2
different Ds where Ds not in a joint criminal venture hold
both Ds accountable. Ex: you shoot V at the same time
someone else does; you both hit him in the head and he dies
instantly. both Ds liable in this situation
-Joint venture: accomplice liability
2. Proximate cause analysis: where result occurs in an
unusual manner because of some intervening causal force
entering the picture after D has completed his criminal conduct
- Culpability assessment (difference from CL transferred
intent): Result involves same kind of injury or harm as that
designed and is not too remote or accidental in occurrence
2.03(2): Purpose or knowledge result crimes: Causation is
established if:
a) the actual result differs from that contemplated only in that
a different person or different property is injured or affected,
or the harm contemplated would have been more serious than
that caused (i.e. that D killed the wrong person does not
matter, since he still had the culpability of murder); or
b) the actual result involves the same kind of injury or harm as
that designed or contemplated and is not too remote or
accidental in its occurrence
Ex. Pelham: NJ court found D guilty because Victim going off
life support was foreseeable under statute not remote
If D is culpable for the harm occurring in this unusual
manner, D intended, knew, foresaw or should have foreseen
harm occurring in this manner, then Ds culpability for harm
satisfies proximate cause analysis
2.03(3): Reckless or negligent result crimes: Causation est if
same as 2.03(2)(a) and (b)

- Only something very extreme is not foreseeable, but things

like medical malpractice is foreseeable

2.03(4): When causing a particular result is a material element

of an offense w/strict liability provisions, the element is not
established unless the actual result is a probable consequence
of actors conduct i.e. if rape victim dies of a heart attack
afterwards, and that was probable, then the causation element
is established. But if the harm was too unusual (remote or
accidental), then causation is questionable.
MPC does not recognize transferred intent; it just becomes a
culpability issue killing the wrong person does not matter,
since the type of harm caused is exactly the same

VOLUNTARY INTOXICATION: the causal connection between intoxication and criminal behavior. BOTH DRUGS &
ALCOHOL CAN INTOXICATE.
- Common law created specific/general intent to deal with intoxication issues
1. Under CL: intoxicated Ds can at least argue that they did not have the specific intent. Their intoxication, not
some independent criminal objective, motivated their actions (thus negating required SI MR)
2. Under these circumstances, if evidence of intoxication raises a reasonable doubt as to whether D had required
MR, D can still be convicted of a general intent crime (Reasoning: do not want to exonerate someone who
chooses to impair their moral agency to be completely exonerated from criminal liability)

10

MPC 2.08: intoxication is not a defense unless it is a failure of proof defense (negating an element of the crime). Thus,
unawareness of a risk of harm while drunk is immaterial
1. This is an exception to normal failure of proof rules: even though it is logically relevant that D was intoxicated
and not consciously aware of the risk of the result (thus negating MR of recklessness), his exoneration is not
allowed for social policy reasons (same as under CL) dont want to exonerate an individual who chooses to
impair their moral agency
Intoxication can negate purpose or knowledge if those are the mental states of the statute. However, it
cannot negate recklessness or negligence (2.08(2) in such cases it can increase criminality of
negligence
2. 2.08(3): intoxication is not a mental disease no insanity defense
3. Juries tend to give undue weight to the intoxication defense
4. However, intoxication can be an affirmative defense under 2.08(4) if it is INVOLUNTARY, i.e. a) not selfinduced or (b) is pathological (grossly excessive, given amount, to which acto doesnt know he is susceptible),
if by reason of such intoxication the actor lacks substantial capacity to appreciate the wrongfulness of his
conduct or conform his conduct to the requirements of law (i.e. rendered him insane)
However, if D argues involuntary unconsciousness due to drink during conduct, can open up time
frame to when he voluntarily started drinking (Majewski)

CRIMINAL HOMICIDE
** D can cause a death through either VOLUNTARY POSITIVE ACT or through an OMISSION (failing to act where a duty)
- Common law: Murder vs. manslaughter
1. Murder: D must show malice = the MR going to the result of death sufficient to support a murder conviction.
Malice = intent to kill or cause great bodily harm. Manslaughter: Malice is not present
2. Four mens rea for murder under CL (p. 773 CB)
Intent to kill
With adequate provocation: reduced to voluntary manslaughter
MPC: purpose/knowledge that death will result from ones actions
Intent to inflict grievous bodily harm (where death results)
MPC: knowledge that such harm will result
210.2(b): intent to cause serious bodily harm where death will result
210 adds an additional mental state for murder: extreme recklessness
o MPC asks jury to make a qualitative judgment about Ds character: would D do it
again? Is he among our most culpable and dangerous?
Reckless indifference as to death
MPC: almost = extreme recklessness: extreme indifference to the value of human life
Death occurs during an inherently dangerous felony the felony murder rule (FM)
3. Inadvertent murder and manslaughter: Roe: distinguish with a substantial risk of death and cruel conduct
4. Murder 1 and Murder 2 (CL only MPC does not distinguish between the two)
Why grade between two types of murder: ut/ret: in terms of Ds moral culpability, some crimes are
worse than others in terms of degree/type of social harm caused
Murder 1: specific intent
Mental state: Premeditation and deliberation, as well as intent to kill
o First initiated by courts to distinguish between someone who coolly plans to kill, vs.
someone who impulsively kills
o Test for premeditation/deliberation: Prior planning; motive; manner of killing
o Now not seen as good test: mercy killings; D kills after deliberating only seconds
before committing the crime how does culpability differ?
o However most murder 1 statutes still use premed/delib as an additional mental state
to distinguish from Murder 2
Murder 2: general intent
Mental state: just intent to kill (no premeditation or deliberation)
Intent to kill or do severe bodily harm where death results, absent adequate prov
- MPC 210: Criminal Homicide
1. MPC does not distinguish between degrees of murder (though most murder 1 statutes still use premeditation
and deliberation as an additional mental state to qualify for murder 1)

11

2. 210.1: Criminal Homicide D is guilty if he causes the death of another no matter his mental state. Includes
murder, manslaughter, or negligent homicide.
3. 210.2: When Criminal homicide constitutes murder
201(2)(a): committed purposely or knowingly
210(2)(b): committed recklessly under circumstances manifesting extreme indifference to the value of
human life. Recklessness and indifference are presumed (see 1.12) under certain conditions (including
involvement in felony FM rule See MPC) inadvertent murder
Extreme reckless indifference (ERI) murder: Roe: juvenile D found guilty of depraved
indifference murder after killing friend through Russian roulette game (though this behavior
following the murder supports mere recklessness, not extreme recklessness, which dissent
argues should just be reckless or involuntary manslaughter)
Contempt for human life; shows conscious awareness of substantial and unjustifiable risk of
death higher M/R than simple recklessness, showing highest level of moral culpability and a
higher mental state
MPC aims for jury to make a moral judgment about Ds character: whether he is among our
most culpable and dangerous - need for greater penalties to incapacitate these people
To defend against presumption of ERI, D must go on stand -can lead to self-incrimination
Voluntary intoxication can be admitted to negate ERI (MPC views ERI as moral equivalent of
purpose or knowledge to death, so just as it can negate purpose it can negate ERI)
ACCOMPLICES can be guilty of ERI mental state; if desire to facilitae shooting and give
some kind of help or encouragement, they can be convicted of accomplice to murder
4. 210.4: Negligent homicide (in CL, reckless or invol mansl) committed negligently; 3 rd degree felony
Criminal negligence: D can be convicted of murder even if he did not have intent to kill does not
have to be aware of risk of death, but his conduct must display an attitude suggesting an indifference
to human life and must be a GROSS DEVIATION, and high/unreasonable risk of death
Vs. civil negligence: just any deviation from standard of care (Agnew (835): reversed
conviction for involuntary manslaughter: facts could not satisfy standards of criminal
negligence because D had taken precaution as to risk of death; however was civilly negligent
5. 210.6(4): Mitigating circumstances for ways in which Ds sentence can be reduced
Manslaughter
- General principles: unlawful killing WITHOUT malice
- MPC: 210.3: Manslaughter second degree felony
1. 210.3(1)(a): Committing criminal homicide recklessly (as to result of death)
2. 210.3(1(b): EMED: partial affirmative defense of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse otherwise it would be murder) broader than CL provocation doctrine
(see below) (cb p. 819) also see p. 30 of outline for more on EMED under Diminished Responsibility
Both expands on sudden heat of passion and permits courts to recognize a partial resp. defense
MPC does not require some provoking event in the real world that would upset the person of average
character. Allows for manslaughter when there is a reas excuse; every int. killer who is emotionally
upset or has sig emotional issues at the time of killing can show evidence of EEMD and get a jury
instruction on the partial defense (see below for more jury)
The main question is whether Ds loss of self-control at the time of the killing can be understood in
terms that arouse sympathy in the ordinary citizen it is up to the jury to decide whether they have
compassion for Ds upset, or whether his violent reaction speaks badly about Ds character and future
dangerousness (Cassassa: D killed woman after she dumped him; jury found that his reaction was
peculiar to him and thus unreasonable)
NORMATIVE inquiry: Ds emotional distress must be based on reasonable explanation or excuse
that triggers jury compassion for Ds emotional response preserves objectivity
SUBJECTIVE prong: mistake: jury must evaluate Ds conduct under the circumstances that he
believed to exist. Personal handicaps and some external circumstances must be taken into account
(i.e. blindness, shock from traumatic injury, extreme grief; paranoid delusions see Dressler 401-2);
but NOT idiosyncratic moral values
Voluntary intoxication is NOT RELEVANT TO EMED

12

SELF-DEFENSE ISSUES: if D recklessly or negligently evaluated the need to fire a gun and kill in
self-defense (i.e. Darlene Bruce), then jury could probably find that she was reckless or negligent. If
negligent she can be convicted of negligent homicide.
Common law: Involuntary:
1. (1) An unintentional killing the result of an act, lawful in itself, but done in an unlawful manner, and without
due caution CL version of negligent homicide) OR
2. (2) An unintentional killing that occurs during the commission or attempted commission of an unlawful
act/felony (that is not inherently dangerous)
3. Mental states: Reckless as to the result of death (extreme reckless indifference): substantial, grave risk of
death; and cruelty/wantonness of conduct leading to the death (i.e. Roe distinguishing between inadvertent
murder & inadvertent manslaughter)
4. Rationale: partial justification (victim somewhat at fault), Ds reduced culpability, less dangerous to society
Voluntary: intentional killing in the sudden heat of passion (MR) as the result of adequate provocation (see below) or
imperfect self-defense
D cannot be convicted of attempted involuntary mansl (which is based on MR of criminal negligence or state of mind
other than intent to kill cannot intentionally commit an unintentional crime
D can be convicted of attempted VOLUNTARY manslaughter if he tries to kill when provoked & fails he has the
specific intent to kill

Provocation: a partial affirmative defense that distinguishes 2 classes of intentional killing does not negate intent to kill, but
just says adequately provoked killer is less morally culpable than the non-provoked killer. Only relevant at sentencing stage.
- Does NOT apply to non-homicide crimes, unless they require malice (MR sufficient for murder conviction)
- Negates malice (CL term of MR sufficient for murder) to reduce down to manslaughter. It does not apply to nonhomicide crimes like assault, unless that crime involves malice. If not then provocation is irrelevant.
- Whether or not there was adequate provocation is a jury question
- Function is to grade degrees of criminal liability: while the elements and results may be the same with two
homicides, there may be a difference between the killers (causal link: less culpable D would not have killed absent
provocation). Discourage broad prosecutorial and sentencing discretion legislature should decide this.
1. Retributivism: Focus on culpability (MPC focus): Provocation diminishes killers self-control capacity the
adequately provoked killer is less morally culpable, b/c would not have had intent to kill absent Vs adequate
prov. However, we still expect morally accountable people to reasonably deal with stresses in their lives; thus,
no exoneration but just less severe punishment.
2. Utilitarianism: Focus on future dangerousness (CL focus along with culpability) - The more unusual the
provocation, the less likely it was that the killing was not due to Ds bad character. Prov allows for dim
culpability of Ds state of mind adequately provoked killer might be less likely to kill again, than
intentional killer NOT responding to some extraordinary external event
Incapacitation: Not all intentional killers are equally dangerous to us. ID those most dang.
- 4 elements of the CL provocation test
1. D was actually provoked by an external event anger as test def. of anger differs among jxds
Sudden anger (provokes you to rash action) vs. cumulative anger (a broader idea of adequate
provocation Gounigas: killed man who sodomized him in public weeks afterwards; though long time
in between, sodomy is the type of extraordinary event that diminishes your culpability)
Freddo: mere words not enough under some CL jurisdictions
Premeditation is not supportive of provocation defense
2. Reasonable person, in actors situation would have been provoked too
Normative/objective standard of the reasonable person: Whether an ordinary person would have lost
self-control in a similar situation (Reasonable person: of decent/moral character; avg intelligence;
decent self-control if someone of ordinary self-control would have been so provoked that they would
too have acted irrationally, then should exonerate)
X Special traits that explain why D cant interpret (facts known to D) or act like the reasonable
person are NOT considered because they would destroy the normative standard
Bedder (811): sexually impotent teen killed when made fun of. G cannot give the
reasonable person Ds characterstics, because this destroys the normative standard.

In actors situation All facts known to D; any facts/inferences/interprerations of facts that reas
person in actors sit would see or make; any special expertise/abilites of actual D relevant to (1)
evaluation of risk & its justifiability; (2) Ds ability to mitigate/eliminate risk i.e. if D is crippled,
what would a reasonable crippled person have done? Racial insults also can be considered b/c it

13

doesnt undermine the normative standard) Need to evaluate nature and severity of Ds prov., as long
as it does not compromise the ordinary self-control standard of a reas. person
This CL test designed to ID intentional killers where we are not only certain of their lessened
culpability, but also that they are not as dangerous as other intentional killers.
Retributivist perspective: Reduced moral culpability - D is a moral agent and still responsible for his
acts. The reasonable emotional desire to retaliate is morally permissible but to act on it is not.
However, most people could understand Ds desire to retaliate.
However, Utilitarian perspective: allowing reduced culpability in provoked killers might still present a
danger to the rest of us we might sympathize with Ds extreme emotional reaction, but not with
their choice to kill that choice indicates their extreme dangerousness
Subjective standard of the reasonable person: looking at Ds individual flaws
What if the actor has a flaw not inherent to the ordinary man, i.e. insanity or immaturity?
U.S. has no diminished responsibility defense system (ret). Legisl. use mixed ret/ut model
o Cassassa (820): D killed ex-girlfriend, upset about being dumped. Being rejected is
not an extraordinary event; the way he reacted to it says a lot about his character
thus reduced dangerousness and culpability does not apply.
o MPC: allow factfinders to decide how Ds reaction speaks of his character.
o MPC test is not purely subjective: dont take into account Ds unique background
(i.e. racial, socioeconomic, etc.) to determine whether there was adequate
provocation
Maher jurisdiction: the situation must have been one in which a reasonable person would have been
provoked. If there is any doubt whether alleged prov would have provoked reasonable man, the case
should go to the jury. no rule-like def of adequate provocation: not every case gets to the jury
judicial discretion allowed in giving provocation instructions
Mere words are enough to get to jury (unlike some jxds) no rule-like def. of ade prov.
If there is ANY doubt that as to whether alleged provocation be such that it provoked
reasonable man, it should be up to jury to decide loosens #2 and #4 of prov doctrine.
(Judge does not give jury instruction if he is sure beyond a reasonable doubt that the
provocation would not have arisen in the ordinary/reasonable person)
3. D did not cool off before the killing if D did not kill in the sudden heat of passion, and a reasonable person
would have cooled off in the time that elapsed between the provocation and the fatal act, then no defense
typically left to the jury
4. Reasonable person in Ds situation would not have had adequate time to cool off - normative
Look at: All facts known to D; Any facts/inferences/interpretations of facts that the reasonable person
in the actors situation would see or make; Any special expertise/abilities of actual D relevant to
evaluation of the risk and its justifiability, or Ds ability to mitigate or eliminate the risk
FELONY MURDER
I.
CL vs. MPC: CL does not require culpability as to risk of death (FM is strict liability as to result of death for both
principal and accomplice when they are both guilty of the predicate felony), where MPC is NOT strict liability as
to death with FM requires showing of culpability as to both death and the felony
II.
Rationales
a. Original view of MR: Where D makes culpable choice to do wrong, held responsible for all consequences of
wrongful choice see trial court instruction in Faulkner (the old view of MR)
b. Deterrence of community of dangerous to life felony in manner risking human life
c. Social harm of death: punishment propor. to severity of social harm caused by Ds felonious conduct
i. Ret: distinguishing between more or less serious crimes, so D shuld be more or less culpable
ii. Ut: presence or absence of social harm
d. Procedural burden of proof justification: ease prosecutions burden of proof by conclusively presuming
culpability death but no requirement to prove it see accomplice problem (Presumption: MPC)
e. From a retributivist point of view FM rule is unjustifiable does not link murder with Ds culpability
i. Note NY statute: affirmative defense for murder that occurs during a felony where D was not armed
and did not know his co-felons were armed
III.
MPC has no felony murder rule (but 210.2 provides for murder conviction when someone is killed during a felony
even if D attempted or was accomplice to it, it must be shown that D displayed extreme reckless indifference to
the value of human life, and disregarded a substantial and unjustifiable risk to human life).

14

IV.

V.

a. MPC: 210(2)(b): reckless and indifferent murder is presumed if performed in the commission of a felony
b. 1.12(5): presumption: when there is evidence of the facts which give rise to the presumption, the issue of the
existence of the presumed fact must be submitted to the jury D has a chance to rebut the presumption
c. MPC requires some mental state: a compromise with CL with requires no mental state as to FM
How to work with felony murder
a. First ID the predicate felony (i.e. robbery, larceny) and determine if D can be convicted of that on its own
i. If D has a failure of proof/affirmative defense to the felony, he is NG of murder
b. If given a statute, see if language embraces one or more limits if no clear limits, see if it uses CL or MPC
language to see what the policy decision is
c. Inchoate crimes i.e. burglary: dont require proof that the objective social harm (i.e. permanent deprivation of
property) has occurred. The conduct is being criminalized b/c of the social harm it risks.
Limits apply to all felony murder statutes (EXCEPT inh dang limits created to deal with statute allowing FM
w/o IDing which felonies trigger it a. Inherently dangerous felony test - In abstract, looking at the elements of the crime and not how the crime
was committed in a particular case (i.e. Hansen: shooting a gun at an inhabited dwelling G: inherently
dangerous because people reside there and are generally in or around the premises).
i. This test only used when the legislature has not IDd felonies triggering the felony murder rule
narrows the scope of FM murder where legislature has failed to do so
b. Merger rule: if the felony is an assault-like felony, then it merges with the murder and cannot be used to
support a felony murder conviction. Does not apply (and D is G of FM) if pred felony is NOT assault-like)
i. Rationale: if assault could be the predicate felony, then every involuntary manslaughter would be
murder. Cannot allow assault-like felonies that lead inadverdently to murder to trigger FM rule.
ii. Thus, if the predicate felony is assault, D cannot be charged with felony murder
iii. For non-assault-like crimes, merger rule looks at where the specific intent that has to be proven refers
to a specific intent to assault someone (i.e. burglary: if a burglar breaks into a car to both steal
something and attack a passenger had a specific intent to assault someone so cannot use burglary to
trigger the merger rule).
iv. In most jxds, intent to injure or recklessness concerning risk of injury is sufficient to establish MR for
some form of felonious assault. Some jxds interpret the merger rule more broadly than others.
c. Duration of the felony: The killing must occur during attempted commission, commission, or escape from the
felony before reaching a safe place of temporary refuge (end of flight). The flight component of the duration of
the crime is not ended until ALL accomplices reach safe refuge (according to principles of accomplice
liability), and his co-felon was still in flight at the time of the killing. If the felon has not reached a point of
temporary safe refuge by the time the killing occurs, then FM rule can apply
d. Agency limit: The killing must be done by a felon or accomplice to felon as long as the but-for test is
satisfied between criminal conduct and result of death, no proximate cause issue
i. Sophophone: co-felon killed by police officer; majority applied agency limit Ds conviction
reversed (but dissent argued proximate cause limit applied see below)
ii. More drastic limitation of FM rule than proximate cause - which to apply is policy choice need to
read in the legislative intent. Rely on strict construction (legality principle), which should be in
favor of D where there is statutory ambiguity (unless there is some other important public policy
reason to construe it differently, i.e. Marrero where reading in favor of D would lead to absurd result).
Also, see if the statute uses MPC or CL terminology
e. Proximate cause limit: A killing by the victim, innocent third party, or police is still attributable to the felon
and accomplices if it was a reasonably foreseeable response to Ds criminal conduct
1. Reasonably foreseeable = not an abnormal coincidence
2. This is not the same as applying negligence/recklessness it is an objective test of
reasonable foreseeability
ii. Sophophone: death of co-felon by police officer, the way it happened, is reas foreseeable in this case
1. But note justifiable homicide exception in some prox-cause jurisdictions
f. Felonious conduct must cause death - I.e. if transport of drugs by plane, and bad weather caused the crash, not
felonious conduct of trying to fly too fast, then no FM liability

ACCOMPLICE LIABILITY - Imputes the crim conduct done by prin. to accomplice.

I.
When does the prosecution need accomplice liability to convict?

15

a. When the prosecutions evidence establishes that only the principal did the AR most typical. D did not
engage in the criminal conduct element of the target crime (i.e. Russell: depressed wife drowned herself and
kids while husband stood by NG: his wife was a free agent)
b. When a group of individuals commits a crime and there is little evidence that D was personally involved
c. When Ds criminal conduct did not cause the result element (i.e. Russell, Dlugash: D shot V when V had
already been shot and it was uncertain if V was already dead when shot again NG of murder)
II.
Principal must complete ALL elements of the crime under CL (except the result element sometimes, in which case
the crime is attempt). This means principal must have caused the result in result crimes (i.e. D in Dlugash could not
be principal b/c his act did not cause the death beyond the reasonable doubt; V probly dead already).
a. Where there is a proximate cause problem, D cannot be the principal.
III.
MPC definition: 2.06(3): A person is an accomplice when he has the purpose to facilitate/attempt to aid the
criminal conduct of the crime, not the result, AND (a) solicits another person to commit the crime; (b) aids or
agrees or attempts to aid such other person in planning or committing the offense; (c) has a legal duty to prevent
the commission of the offense but fails to make a proper effort to do so (omission)
IV.
When accomplice liability does not apply
a. Vicarious liability: Accomplice liability is an example of vicarious liability A is held accountable for Bs
criminal conduct (2.06(2)(b))
i. With VL, you can be convicted without any conduct (positive or negative) being proven on your part,
as long as your employee did the conduct. But an accomplice can only be liable if he engaged in some
positive act or omission. No vicarious liability for homicide
b. Innocent agent : 2.06(2)(a): not accomplice liability causing an innocent/irresponsible person to engage in
criminal conduct: you = principal. Innocent person has no MR and is not moral agent
V.
When accomplice liability may be improper
a. Reckless/negligence liability crimes - Some jurisdictions: it is logically impossible: cant have purpose to
result if the conduct is not purposeful, only reckless or negligence
b. Other jurisdictions: as long as accomplice has 1) intent to assist primary party to engage in criminal conduct of
offense and ii) MR of target crime, accomplice can be held liable
i. Manslaughter as result of negligence: A intends to encourage P to drive recklessly and was criminally
negligent by encouraging P to drive in this manner
c. When accomplice conduct is incidental to the commission of the offense
VI.
Elements of Accomplice Liability
CL Analysis Derivative Liability (liability is MPC Analysis: 2.06 REJECTS DERIVATIVE
derived from the principal, so if P is NG then A
LIABILITY
is NG) focuses more on conduct
2.06(2)(c): need to show accomplice MR and
accomplice AR
- Focus more on culpability over conduct makes it
easier to be convicted as an accomplice
Accomplice
Accomplice must satisfy:
1 Culpability of target crime for AC, Result
MR
1. MR of the target crime for A/C and Result elements
same as the principal. If principal is not
2. Special accomplice MR: purpose to facilitate or
convicted, accomplice cannot be
attempt to aid the criminal conduct of the crime,
2. Special accomplice MR of purpose or
NOT THE RESULT- 2.06(3)(a).
knowledge to aid (or attempt to aid) the
-KNOWING facilitation insufficient under MPC:
principals conduct that caused the result (BUT
provides too broad a net of criminal liability. EX. Of
NOT PURPOSE AS TO THE RESULT - i.e.
gun shop owner selling a gun to someone who says
Russell: need to show he had the purpose to aid
he will kill his wife. Owner had knowledge but not
wife in bringing them into the ocean, NOT to
purpose as to the criminal conduct did not desire
show purpose that they die)
she die, but he was engaged in lawful conduct of
- If knowledge (as in some CL jxs), must be
selling the gun.
substantial conduct/assistance
-Difference between purpose to aid (desire to help)
3. Intent that Prin commit the crime not required and knowing that you will help (awareness of the
(allows for being an accomplice to a reckless or certainty that conduct will be satisfied)
negligent crime)
-Accomplice does not have to know the ID of other
people he is helping
3. If Principal is not convicted, accomplice still can
be (UNLESS principal is exculpated on justification
defense because no crime occurred so no act to
impute)

16

Accomplice
AR

Need to prove that what D did somehow

contributed to principals criminal conduct
Must be actual assistance or omission (if under a
legal duty to do something)
- CL requires some form of assistance to
criminal conduct to show culpability
-(Tally: if judges telegram had been ignored,
there would have been no assistance and thus no
accomplice AR)
-This can be physical assistance (i.e. driving
getaway car; giving someone information),
psychological encouragement (such as
agreement to aid), or assistance by omission
(where there is a duty to act), which contributes
somehow to the criminal conduct commission
-Dont need to show that accomplices conduct
was the but-for cause of the result: just need a
showing of some kind of criminal conduct
- Abandonment: D can avoid accountability
failure of proof toward AR: if they communicate
their withdrawal to the other actor, and 2) makes
genuine efforts to neutralize the effect of her
prior assistance failure of proof defense

MPC test: Actual assistance, aids or or agrees to

attempt to assist in planning or commission, or even
attempts to assist
- Even ineffectual attempts to aid are good enough
to show culpability difference from CL
-Mere presence at the scene is not sufficient to
support a notion of aiding and abetting. If there is
evidence, however, through prior acts that
accomplices presence is meant to convey assistance
(i.e. Durham), then there is inference of an
agreement to participate in Accomplice AR
2.06(3)(i-iii): examples of accomplice AR
1. solicits another person to commit the offense
2. Aids or agrees to attempt to aid such other person
in planning or commiting the offense
3. Fails to prevent the commission of the offense
when he has a legal duty to do so
Result crimes: 2.06(4): When causing a particular
result is an element of the offense, accomplice is
liable if he acts with the culpability with respect to
that result that is sufficient for the commission of the
offense (ex Acc tells P to drive drunk)
5.01(3): MPC sometimes treats accomplice under
attempt liability provisions
- D is guilty of an attempt to commit a crime if he
engages in conduct designed to aid another in the
commission of a crime, even if that crime is not
committed or attempted by another (**Dressler 444)
(i.e. D gives gun to X to kill V, but X does not kill
V. D would have been an accomplice had the crime
occurred) - only use this if it is impossible to get the
accomplice otherwise

Extension to
accomplice
liability

Natural and foreseeable consequences

doctrine: Accomplice may be held criminally
liable not only for intended crime X, but for any
other offense Y that was a natural and probable
consequence of the crime (were additional
crimes objectively reasonably foreseeable to
A if so then A is liable i.e. Durham)
- Jury is told that when D does certain
intentional conduct, they can infer that the
natural/probably consequence is sth D intended
to achieve

5.01(6) affirmative defenses see XIV below

Liable only for the act in question: does not extend
joint venture to other foreseeable acts by principal.
Natural and probable consequences doctrine: not
recognized by MPC (accomplice liability does not
extend beyond the purposes A shares i.e.
burglary/rape hypo: accomplice would be liable for
burglary but not for rape because MPC does not
recognize foreseeability
MPC rejecs Durham principle( extending
accomplice liability to acts D did not commit)

Principal must satisfy all the elements of the target offense; Accomplice must satisfy all culpability elements of
the crime: specific intent, MR as to the AC, MR as to the result
Accomplice
Principal
Accomplice AR:
Objective elements:
CL: Some form of actual assistance (ineffectual aid not
- AR (i.e. for burglary: breaking and entering)
enough)
- AFC
MPC: aid/attempt to aid (incl. ineffectual assistance)
VII.

17

Accomplice MR:
CL: purpose (not knowledge) to facilitate the criminal conduct
MPC: purpose to aid Ps criminal conduct (could possibly also
go to AFC but not necessary)
-Look at the facts and conduct which shows MR
-DONT need accomplice MR as to result
Culpability of the crime charged (mens rea going to AC and
result, NOT AR) and any additional mental state (i.e. specific
intent if one is required)
- If a result crime: purpose, knowledge, or belief the result will
-

occur
- Strict liability crimes: SL as to the AC must be proven for
both accomplice or principal (conversely, if neg goes to the
AC, then prosecution must prove that neg for both P and A)
If statute silent as to MR, read in general intent/guilty mind
or recklessness/negligence can D be convicted of even
negligence (i.e. dog fight hypo)

VIII.
IX.
X.

XI.

XII.
XIII.

Culpability
- MR as to AFC, AR, result
- Any specific intent which shows extra purpose

Principals conduct is imputed to the accomplice

Under MPC: the only difference between P and A is mens rea.
If P is found not guilty for failure of proof MR defense, then
Acc can still be held accountable as long as objective elements
are present P must still do the actus reus of the crime

Accomplice to attempt: Need to show (1) acc m/r: purpose to aid criminal conduct constituting the attempt
(substantial step); (2) acc a/r: aid or attempt to aid the criminal conduct (subst step), M/r of attempted target crime
to all elements except going to AR
Accomplice liability & felony murder: first ID if principal guilty of predicate felony. If yes, then P is guilty of
FM if his conduct caused the death. Accomplice also needs to be found guilty of predicate felony to be NG of FM
(so need to consider affirmative defenses for accomplice, i.e. duress)
5.01(3): Can accomplice be convicted if principal found not guilty? N under CL, Y under MPC
a. This provision created to deal with problem of culpable accomplice who has acc MR (purpose to aid Ps
criminal conduct), acc AR (aided or attempted to aid the conduct), and culpabilility of the crime (i.e. MR
going to AC and result) & any additional mental state however, principal changes his mind and does not do
the conduct or even attempt to do the conduct thus no guilty principal for either crime OR att crime.
b. 5.01(3): if Ds complicity est. under 2.06, he is still guilty of his own attempt even though crime not
committed or attempted by P (so that P is not guilty so there is no AR for crime or attempted crime to impute
to the accomplice)
c. In this situation, treat the accomplice as the principal and convict him of attempted commission of the crime
that he would have been convicted of under acc rules if the P had ever acted he must satisfy all elements
d. BUT NOTE: if the principals conduct avoided a greater harm (the necessity defense), she is justified in
breaking the law and therefore no criminal conduct can be imputed to her accomplices
Can accomplice and principal be found guilty of different crimes, eg Richards
a. Accomplice can only be charged with a greater degree of offense only under MPC and ONLY if the only
difference is the mental state (but the result is the same)
i. Richards: wife hired thugs to beat up husband, who did less serious injury than requested.
1. Under CL: person who requests or advises offense be committed cannot be guilty of a graver
offense than was actually committed concept of derivative L
2. MPC 2.06(7): Richards CAN be charged with a higher offense because she has the culpability
for a higher offense the specific intent of the target crime. The principals actions were not
as bad as she intended; they did not have the culpability of the target felony crime as she did.
a. Othello/Iago: though O killed, I had premed and delib so he can be convicted of
higher crime murder under MPC but not under CL. (O could get vol mansl)
b. Darlene Bruce: mother had MR for murder 2, but DB arguably only had MR for
manslaughter. DB can be convicted of mansl while mother can be convicted as
accomplice to murder 2
c. this only applies when the crime has been completed
b. Accomplice can be charged with a lesser crime than the principal under both CL and MPC when accomplice
has lower MR (i.e. did not premeditate, but P did)
Excuse defenses cannot transfer to the accomplice unless D has their own personal excuse
Special affirmative defenses
a. 2.06(6)(a): A victim of a crime cannot be convicted as an accomplice (i.e. Tyrell: 16yrd old prostitute is not
liable as an accomplice to statutory rape, bc she is underage) undermines legis crim decision

18

XIV.

b. 2.06(6)(b): Ds conduct is inevitably incident to the commission (i.e. prostitute and her buyer 2 people are
required for commission of crime) - dont want to unduly extend scope of who can be convicted as acc.
c. 2.06(6)(c): D terminates his complicity prior to the commission of the offense and either informs law
enforcement before it happens or makes it impossible to happen
i. It is not an affirmative defense to accomplice liability if the crime still occurs a social harm has
occurred, and utilitarian deterrence was not achieved
ii. However, 5.01(4): Renunciation of Criminal Purpose: Have to have somewhat of a moral reason to
abandon the crime. This indicates to MPC that D is not a dangerous person and not culpable, even if
he has mixed reasons.
Accomplices to attempt: First, figure out if the principal is guilty of attempt. If not then accomplices cannot be
liable (under Cl but not under MPC). But if so, then determine whether accomplices are liable for aiding her
criminal attempt. (i.e Cogan/Leak: Cogan principal NG of rape bc no MR as to rape; Leak guilty as acc b.c had all
accomplice obj elements)

ATTEMPT LIABILITY inchoate criminal liability: punishing conduct that has not yet generated the social harm.
Criminalizing attempt behavior because we are concerned with what might ultimately happen.
I.
The crime of attempting an offense punishes to more preliminary conduct (pushing back the point at which criminal
liability attaches). Looking at whether there has been enough conduct to justify criminal punishment.
a. Problematic element is A/R: one of the positive acts or omissions required for a crime is not yet completed
b. Required state of mind is purpose: D must have a conscious desire or objective to complete a course of conduct
proscribed as criminal. Were the actions toward fulfilling that purpose sufficient to support criminal liability?
II.
When is attempt liability used?
a. When Ds have not yet completed the criminal conduct of the substantive crime (i.e. Bowen) D quits or is prevented
before completion
b. When criminal conduct has been completed, but the crime has a result element which has not yet occurred (i.e. shoot to
kill someone and misses)
c. Where all conduct and result of crime has occurred, but problem proving that completed conduct caused result (i.e.
Dlugash: man may have already been dead when D shot him)
III.
When attempt is included in the statute (i.e. attempts to cause bodily injury) just treat the attempts to cause as a
regular A/R and dont need to worry about any special strategy
IV.
Breaking down attempt liability: what needs to be proven? Attempt MR, AR, culpability of target crime, and AFC (only
need MR of target crime NOT attempt MR as to AFC (under MPC but under CL need attempt MR as to AFC)
a. I.e. Thomas: for attempted reckless manslaughter, D needed to show 1) intent to commit the offense 2) substantial step
3) recklessness
Attempt
Target crime (larceny)
- Special Attempt M/R: CL: purpose/specific intent to complete Culpability/MR: specific intent to carry away the property of
criminal conduct (i.e. to achieve the crim result; and as to
Another
all elements of offense (inc. result)
- Culpabilty going to AFC, Result, etc.
- MPC: purpose to engage in the conduct or to cause the result
of the substantive offense
- 5.01(c): purpose, knowledge, or belief that the result will occur without
w/o any further act by D
No special attempt MR required for going to AFC.
-Impossibility problem: a defense to attempt see below
Special Attempt A/R : prove that Ds did SOME
Objective AC property of another; w/o authority of law
conduct even when not yet completed. Total AR of target
- If cant prove AC is present, can still charge with
crime does not have to be proven.
attempt liability
- CL: dangerous proximity; unequivocal act test (less jxds)
- MPC: substantial step that strongly corroborates criminal DONT NEED TO PROVE:
purpose (MUST include corroboration)
-AR (if not completed); AC (all the time), Result
Strict liability crimes: dont need culpability of target crime, but
need intent to commit that crime & bring about the crim result
- SPECIAL ATTEMPT MR: A mental state above and beyond the MR of the target crime
1. Common Law: specific intent is required as to ALL elements of the attempted offense. Must intend to commit
acts that bring D in proximity to commission of offense with the specific intent of committing the target crime
MR to AC just as in actual crime

19

HOWEVER: impossibility problem: if D believes that AFC of target crime exist, but they
are actually missing, then can still be convicted of attempt crime belief as to AFC is
good enough when the crime hs is being convicted of exists (i.e. if D goes to store to stab
someone but V is not there, it is not a failure of proof defense that V was absent even
though it was impossible that the crime occur). Similarly, Dlugash D cannot be convicted
of murder since V may have been dead but can be convicted of attempted murder since he had
the intent to kill.
Perform AR with the specific intent of of committing target crime (but mistakes can negate this
specific intent)
If result, specific purpose of causing the result
Exception: Attempted homicide (conduct completed): some jxds do not require attempt specific
intent to kill Thomas: non-MPC jxds can recognize attempted reckless manslaughter
Culpability of the target crime: (i.e. murder purpose, knowledge, extreme reckless indifference as
to result i.e.: D fires gun at target as V walks in front of it and is nearly struck by bullet. D is guilty
of attempt if a) he pulled the trigger intentionally and b) he intended to kill V.)
2. MPC 5.01: must have culpability of the target crime, and purpose to engage in conduct and result elements of
the object offense (i.e. purpose to do criminal conduct, and purpose or belief as to result for result crimes). MR
for AFC for attempt same as required for completed offense whether they exists or are as D believe
them to be.
5.01(a): purposely engages in conduct that would constitute the crime if AC were as he believed OR
5.01(b)/5.01(c): D is guilty of an attempt to cause a criminal result if she belives that the result will
occur, even it if is not her conscious object to cause it (i.e. D blows up a plane intending just to kill her
husband, but she is guilty of other passengers deaths though she did not intend to cause them)
More focus on MR over AR: what is in the actors own mind should be the standard for determining
his danger to society, and hence his liability for attempted criminal conduct
Additional special attempt MR: (1)(a): purposely engages in conduct which would constitute the
crime if the AFC were as he believed them to be (i.e. p. 329: if D takes his own umbrella thinking it
belongs to another then he is guilty; or if D shoots a dead body thinking it is actually alive (Dlugash:
G for attempted murder) he has demonstrated readiness to violate crim law, has manifested
required culpability, and has posed sufficient social danger to justify crim sanctions)
ID legality problem cases: if there is a crime with an AFC element of a real crime, and the
govt cant prove the element exists but that you believed the element was there, then you can
be convicted (i.e. Voodoo doctors can be convicted for attempted murders if they thought
their actions would kill someone, because they are still culpable and dangerous). However, if
even under all the circumstances as D believed them to be, there would be no crime, D cannot
be convicted legal impossibility (i.e. M charged with stat.rape, which is SL; boy is 12 but
she believes he is 16. That belief can be a defense because she believes the AFC of a noncrime exist she does not believe she is committing stautory rape or that he is underage, so
she cant be convicted.)
Ex: pickpocket reaching into an empty pocket cannot be charged with larceny, since objective
AFC of property of another is missing pocket is empty) you can be charged with
attempted commission of a crime if an element of a real crime exists. But if conduct has not
been criminalized (i.e. Madonna hypo), then D cannot be charged with a crime.
(1)(b): there must be a purpose or belief that the result will occur adding a mental state
above and beyond culpability of the target crime
o If you charge an attempted homicide crime apart from culpability of target crime,
also have to show that Ds attempt show intent/purpose or belief as to the result
5.01(3): If Ds conduct tries to help with a crime, even though it is not committed by principal he can
be convicted as an accomplice
Differs from CL position that a specific intent is required as to all elements of offense attempted
Some jurisdictions (i.e. Thomas court in CO) do not require extra culpability beyond the target crime
SPECIAL ATTEMPT AR
1. CL: Focus on acts: Law cannot intervene until the conduct itself raises the threat of a real social danger
preparatory behavior is not enough. D needs to show potential to do scial harm, because want to deter offender
from actually doing the target crime. Only acts that are objectively criminal are liable.

20

No affirmative defense under CL because it requires actor to get much closer to doing the actual
crime, so there is less problem that D will change his mind
2. Policy reasoning (for i.e. not criminalizing preparation): the earlier you criminalize, the more likely to convict
someone who either is not truly capable or who does not yet have a firm intent to commit the target crime.
Give someone a chance to choose not to go forward even after preparing
Issues of fair warning and prosecutorial discretion
Many acts under CL not sufficient to impose criminal liability
Unequivocal act test: conduct speaks for itself - the act ON ITS OWN demonstrates actors
criminal intent demands manifest evidence of Ds blameworthiness not used in many jxds
Doe: attempted sexual conduct with a child could be applied to him if he approached a kid
and took his pants off; but not just if he goes into a park where children are present
Pippin (297): cannot look at status, only act and see if it satisfies the conduct element
Acts alone rarely satisfy this test difficult to know actors end aim or criminal desires just
by his conduct
Dangerous proximity to success test: look at Ds conduct and see how close the actions are to the
AR of the target crime. How much is left to be done?
Only when the anticipatory conduct comes dangerously close to accomplishing the harm
ultimately feared looking at dangerousness of the completed conduct iself
Rizzo: attempt AR not satisfied for target crime of armed robbery, though culpability clear
Requires adequate evidence of Ds commitment to criminal purpose limits liability for
attempt to persons firmly resolved to commit social harm
Weakness: how to separate those who are truly intent on criminal misconduct from those who
may not complete the offense. Cannot criminalize people where there is powerful evidence of
their criminal liability yet they could not be convicted on that basis alone
CL trying to deter people from engaging in dangerous conduct in society however, problem is that
too many dangerous individuals would have no culpability. No criminal liability for earlier preparatory
acts, even where reliable evidence of criminal intent.
Only intervene under CL where danger is extremely likely and the risk of social harm is great thus,
police might not have adequate opportunity to intervene before completed crime occurs
3. MPC 5.01(1)(c): purposely does or omits to do anything which is an act or omission constituting a substantial
step in the course of conduct planned to end in the commission of a crime
5.01(2)(a-g): conduct which = substantial step strongly corrobative of crim purpose
Ex: Accepting anothers offer to secure a drug dealer corroborates Ds purpose to buy MJ
Asks if, looking at all independent evidence already have of Ds culpability (not just looking at
already completed acts), is Ds conduct is strongly corroborative of criminal purpose. Easier test.
Much broader liability for attempt than CL: focuses on what has been done, rather than what remains
to be done. Allows the law to intervene sooner to prevent crime commission
If we already have an admission of what he is thinking, the weakened AR test would
corroborate an independent confession and the test would be satisfied different from CL
DP test, where D would not be close to success
Distinct from equiv act test: much weaker dont have to look at act alone; can look at the act in the
context of other available acts; look at other evidence of MR that the acts corroborate
Doe: under MPC he could be convicted of attempt for dropping his pants; but under CL need to wait
until he gets close to touching the child before liable.
AFFIRMATIVE DEFENSE: 5.01(4): MPC allows an affirmative defense of complete &
voluntary renunciation of criminal purpose; CL does not b/c MPC allows earlier
intervention, need to allow some defense b/c criminalizing less significant actions. However,
have to have some moral reason for aban. to indicate lack of dangerousness and culpability.
Problems with the MPC approach: by focusing on actors culpability and dangerousness, MR, not
AR, becomes critical element in attempt Allows AR to be sufficient before D might change mind.
As opposed to CL: not focusing on Ds culpability or dangerousness, but rather on Ds conduct and
whether conduct itself came close to succeeding.
CLs goal: deterrence of criminal from committing the target offense, by giving them time to
change their mind thus the late intervention.

21

RAPE
I.
II.
III.

IV.

V.

VI.

Accomplice/attempt liability even if the principal is NG under MPC, Acc can be held liable for attempt to aid but
NOT SO under common law which has derivative liability
Attempted homicide problems:
1. Under common law, attempt MR of special intent to kill not recognized for attempted murder
2. Attempted FM: not a cognizable offense attempted murder requires a specific intent to kill, but Ds intent to
commit a felony does not substitute for the intent to kill (See Dressler 420 for when a jxd does recognize it)
3. Attempted manslaughter: attempted vol mansl is possible if D is provoked and fails to kill he already
possesses the specific intent to kill
Non-MPC jxd can recognize attempted reckless mansl: D had the MR to kill, did the conduct, and was
reckless towards the AC so can be charged despite no extra attempt MR
MPC DOES require the attempt specific intent to kill (but uses purpose/belief that result will occur)
MPC DOES NOT recognize attempted reckless manslaughter since it requires attempt MR of purpose
or belief that the result will occur.
Thomas: Target crime = reckless manslaughter. Govt has to prove that D was guilty of a substantial
and unjustifiable risk, of an awareness of the risk of death. He completed his planned course of
behavior, but was just lucky that no one died D came close enough to intending harm that he can be
convicted of attempted reckless manslaughter
MPC 213.1: Rape and Related Offenses rape is a felony under MPC
CL: rape = unlawful sexual intercourse with a female person without her consent
Traditional rape statute i.e. Rusk: AR, MR, AFC
a. AR = sexual intercourse; force or threat of force; AFC = lack of consent; MR issues
b. Every rape statute requires force/threat of force element as an independent conduct element that must be
proven. This protects male seduction by willing sex partners. Mere persuasion not enough for (threat of )force
i. Would a reasonable person in Vs situation have interpreted Ds acts as force? More protective of
rape victims. Most jxds say act should not constitute threat of force unless D MEANT it to (MR of
intent as to the impact of the conduct on the victim)
c. A mala in se crime under CL, so no strict liability a general intent crime D is guilty if he possessed a
morally blameworthy state of mind about her lack of consent
State v. MTS: even slight penetration constitutes force reinterpreting rape as sexual assault, and intercourse itself
as an example of force
i. Reinterpreting consent: needs to be affirmatively and freely given
ii. The law needs to privilege some norms (Rusk: privileging male access to unwilling females)
MENS REA AS TO LACK OF CONSENT
a. Lack of consent and force are two distinct elements of rape that must both be proven
b. Without consent is a social construction that requires a normative value judgment about what constitutes a
reasonable interpretation of the victims acts and words
c. Lack of consent: can be a problem when it is not verbalized. No one has privileged access to anothers inner
thoughts, so you cant prove what she was really thinking if she did not want to have sex with D. Thus, D
could plausibly make a non-negligent interpretation of her acts and words that she consents. The issue is how
she communicates her lack of consent
i. Objective proof of consent = a reasonable, non-negligent evaluation of the victims acts and words.
Jurors need to apply their own value judgments to whether there was consent or not. General intent
crime.
ii. In jurisdictions in which a mistaken belief as to consent is exculpatory, trial courts must ID the cases
in which a jury instruction concerning mistake is required. Instruction is required only where there is
substantial evidence that D could have reasonably believed consent was given (Williams 378)
1. You can mistakenly believe someone is consenting, but still be reckless
d. intoxication in rape can be a valid failure of proof defense if court says it is a general intent crime as to lack of
consent jury could find either way
i. Importance of applying M/R to AFC of consent: to get a jury instruction so they can do factfinding
e. Intoxication can only be a valid failure of proof defense if the court says this is a general intent crime as to lack
of consent see 2.08
MPC 213.4: Sexual assault unauthorized sexual contact with another
Common Law

MPC 213.1

22

A/R

Sexual intercourse AND force or threat of force

(just sexual intercourse is NOT ENOUGH to
establish AR for rape)
- Requires proof of some positive conduct by D
(i.e. Rusk: slight choking, taking her keys)
- Forcible conduct by D is more injurious than
nonconsensual intercourse
- Smith (377): D must either use force or threaten
its use by words or conduct that would reasonably
generate fear of physical injury
- Re: MTS: force can be only the slightest
nonconsensual physical penetration, even where
prior conduct was consensual

M/R as to lack
of consent

M/R as to
threat of force
In comparison
to each other
VII.

VIII.

IX.

General intent: an awareness that he is forcing sex

on a woman against her will, and he intends to do
so
- D need not intend that intercourse be
nonconsensual. Just has to have a morally
blameworthy state of mind regarding her
lack of consent
- Majority: - If D had a genuine and
reasonable(non-negligent) belief that she
had consented (and jury can find beyond a
reasonable doubt that Victims words and
actions indicate consent), he is exculpated
- Prosecution must prove negligence as to
lack of consent
- Intercourse with a woman in capable of
consenting (i.e. b/c intoxicated) is rape
Purpose/intent (i.e. Rusk: slight choking)
Requires objective proof of victims lack of
consent

D is liable for rape when:

213.1(a) D compels her to submit by force or by threat
of imminent death, serious bodily injury, extreme pain
or kidnapping, to be inflicted on anyone
213(1)(b): D has substantially impaired her power to
appraise or control her conduct by administering or
employing without her knowledge drugs, etc. for the
purpose of preventing assistance
213.1(c): the female is unconscious
-What about when female is voluntarily intoxicated but
conscious? See p. 386.
Recklessness/Purpose
- An unreasonable mistake of fact as to consent
=/= recklessness
Or negligence? Would a reasonable person in Ds
position have been aware of a lack of consent?
MPC avoids the question of lack of proof as to victims
consent

Rape defined in terms of males acts of aggression or

over-reaching, rather than females lack of consent
- Does not require proof of victims resistance

Rape and sentencing: male vs. female norm conflict if there is ambiguity, rule of caution should apply (ut)
a. If there are two competing stories, look at the facts to make sure that either story if believed credibly raises
whether D made a mistake as to lack of consent. There will be no instruction about mistake of fact if neither
story raises that issue factually.
Policy issues with rape
a. When a statute is silent as to MR, it is very unlikely that a court will read in specific intent D could raise a
mistake of fact defense about consent if govt must prove purpose/knowledge as to lack of consent, then any
mistake of fact by D, even if recklessly or negligently made, is a failure of proof defense.
b. The higher MR required, the more likely D can fabricate, and higher level of burden of proof for prosecution
c. Even if there is no M/R of D going to proposition that V did not consent, it is likely irrelevant b/c the jury is
going to impose their own sense of a reasonable interpretation of the victims acts and words in any case where
there is ambiguity
Critique of rape: it is looking too much at the victims reaction, and not at the culpability of Ds conduct
a. However, from whose perspective do you look at his conduct? Ds conduct culpability requires interpretation
about its significance and meaning
b. Most jurisdictions: conduct should not constitute threat of force UNLESS D meant it to - M/R of intent not as
to conduct, but as to the impact of the conduct on the victim
i. Focus on reasonable person in victims shoes more protective of rape victims
ii. Some jurisdictions (i.e. Rusk dissent) require that govt needs to prove specific intent: that D desired to
have a threatening impact on V through his behavior - Focus on Ds conduct and mental state

23

1. Akin to voluntary intoxication: 2.08(`1) is a failure of proof defense if it negates an element

of the crime; 2.08(2): unawareness is immaterial if he is unaware of a risk that he would have
been aware of if sober
AFFIRMATIVE DEFENSES : Even when every element of the crime is satisfied beyond a reasonable doubt, the law must
recognize how to deal with special circumstances not anticipated by the general rules of conduct authorized by the criminal law
All affirmative defenses apply to strict liability crimes
I.
Justifications: exceptions to normal crim law conduct rule (1) choice of lesser evils (necessity) (2) self-defense
a. Justifications are complete defenses, suggesting that the act itself, under special circumstances, is not wrongful
b. Either from a utilitarian perspective, by avoiding a greater evil (violating the conduct rule generates a net
social welfare gain that would be lost if D complied with criminal law conduct rule), or ret: When you kill
someone in self-defense, it is better that the innocent victim live over the morally culpable aggressor
II.
NECESSITY/CHOICE OF LESSER EVILS defense available where D acted in the reasonable belief that
committing crime X would prevent the occurrence of a greater crime Y (a greater harm or evil)
a. Requires an OBJECTIVE showing that crime X is not only worse than Ds lesser crime Y, but that the lesser
crime was NECESSARY to avoid X. Thus, if the actor only THOUGHT Y was necessary, then no defense
(otherwise allow defenses for people with idiosyncratic moral values)
b. What qualifies as evil: the greater evil can be lawful conduct (i.e.abortion which is const. protected
however jury decision can trump the legislative decision as to whether a practice constitutes a greater evil)
c. Legislative preclusion: way of evaluating legislative decision that no greater evil presented by practice D
objects to and/or legislative decision that there are lawful means to avoid greater evil so crime commission not
necessary (see medical marijuana case, p. 414: Tate: legislature created specific exception to when MJ can
be used for medical treatment, to exclude claims based on medical necessity in all other cases of MJ possession
i. However, some courts allow possession of MJ as a defense recognizing that its medicinal benefits
outweigh any harms its use inflicts
d. Necessity as a justification for homicide: Dudley/Stevens: at CL, did not allow necessity plea to justify killing
an innocent person in order to avoid some other evil.
i. MPC: a defense of necessity or choice of evils may be raised where one innocent person is killed in
order to save others sometimes utilitarian call for morality (killing one to save another) prevails over
some moral claim that it is never justifiable to kill an innocent
ii. You always have to show that what you did was necessary to avoid a greater evil
Necessity choice of lesser evils
Common Law criteria
MPC 3.02
1. D must have a reasonable belief of being faced with a
Conduct which the actor believes to be necessary to avoid a
clear and imminent danger (i.e. Markham) belief can be
harm or evil to himself or another is justifiable if:
inaccurate this ensures that it is really necessary to
commit the lesser evil
- 3.02(1)(a): the harm or evil sought to be avoided by such
- The more imminent the greater evil is, the less time there is
conduct is objectively greater than that sought to be prevented
to do anything lawfully to avoid the greater harm
by the law defining the offense charged; and
2. D must expect, as a reasonable person, that his action
a) exception: any lawful conduct can be viewed as evil. It does
will be effective in abating the danger he seeks to avoid, i.e. not have to be illegal to be evil, but if it is conduct that is
there must be a direct causal relationship between his
protected by the legislature, it cant be a greater evil
action and the harm to be averted
b) Judge or jury determine what is the lesser harm, not the
a) Reasonableness is the standard so that societys norms are
actor
built into a justification defense, appealing to societys and not c) Greater evil need not be unlawful
Ds individual views of what is right and wrong
b) Reasonable conveys whether D made a non-negligent
-3.02(1)(b): neither the Code nor the law provides exceptions
evaluation of what is the greater and lesser evil negligence
or defenses dealing with the specific situation involved; and
analysis
-3.02(1)(c): a legislative purpose to exclude the justification
3. There must be no effective legal way to avert the harm.
claimed does not otherwise plainly appear legislative
If legal alternatives exist, then necessity defense does not
apply. (see Markham)
preclusion: govts have considered the choice D would have to
4. No competing legislative choice: Lawmakers must not
make but have precluded it in a statute
have previously anticipated the choice of evils and
determined the balance to be struck between the
3.02(2): The defense is unavailable if the actor is prosecuted
competing values in a manner in conflict with Ds choice
for a crime of recklessness or negligence and he acted
Ex: Medical marijuana: D may not defend his use of MJ for
recklessly or negligently, as the case may be, in bringing about
medical purposes if the legislature already weight medical use the emergency or in evaluating the necessity of his conduct

24

vs. values served by outlawing it and still rejected it.

5. There must be no other, less harmful ways to avert the
threat.

III.

However, if D is charged with a purpose or knowledge

crime, then a reckless or negligent mistake is a defense.
- NO IMMINENCY REQUIREMENT under MPC (as
under common law)
- MPC requires an OBJECTIVE NORM-baesd
analysis of what can qualify as an obj. evil

SELF-DEFENSE: when D uses lethal (not moderate) violence D kills another in defense of his own interests
a. Exception to normal prohibition against private use of violence when individual is defending himself against
violence and the state is not in the position to protect the individual
b. Self-defense is justified if: 1) D cannot avoid the threatened harm w/o using defensive force or giving up some
right or privilege; and 2) the force used for this purpose is not excessive in view of the harm which it is
intended to prevent. There are separate defenses for the use of force in defense of person; home; property; and
in aid of law enforcement.
c. Rationales: Moral right of an innocent person to defend themselves against unlawful aggression
i. Utilitarian: all things considered, we are better off allowing people who are being attacked to defend
d. Common law: Three basic issues to address
i. Adequacy of unlawful threat triggering the need to consider the possibility of the use of
immediate defensive violence if mistaken belief of the existence of a threat, see below
1. Adequate threat = imminent, unlawful, serious bodily harm
2. Reasonable mistake: Defense even if the belief was mistaken successful defense
3. Unreasonable mistake: no defense voluntary or involuntary manslaughter. negligence
analysis imperfect justification that can mitigate most state statutes
ii. Necessity of the actual use of defensive violence to avoid the threat (if element one is met)
reasonable evaluation of necessary use of defensive violence in Ds situation
1. There must be no legal alternative to violence
2. You must believe that you are not only adequately threatened, but that lethal force is
necessary to head off the threat reasonable evaluation re: defensive acts
1. If non-deadly force will suffice, then you cannot use deadly force deadly force is
only justified to prevent dangerous felonies (i.e. rape, kidnapping, robbery)
2. Deadly force is not justifiable when the dangerous harm has already occurred, or
when there is a threat of future harm that is not imminent
3. Defense of habitation: D is permitted to use deadly force to prevent an entry into his or her
home based on the reasonable belief that such force was necessary, even when it was not
4. Retreat rule: deadly, violent aggression in response to a threat is not necessary if retreat is an
option (exception if you are being attacked in your own home) -Not all jxds require retreat.
Also, if only moderate unlawful force then no duty to retreat (you should not be forced to be a
coward)
iii. Concern about the proportionality of the defensive violence to the nature/severity of the threat
1. Even the lives of culpable aggressors have value in the eyes of the law. Thus, responding to
unlawful aggression with excessive force is not allowable
1. Deadly force is allowed only against threat of serious bodily harm or death (not slight
harm, i.e. a slap, or harm to property but some exceptions)
2. Exception: today, statutes allowing use of lethal force when your home is threatened
are more common
3. Also, using deadly force (killing the aggressor) where only moderate force might
have suffice can mitigate murder to manslaughter (b/c D acted in heat of passion to
the provocation)
e. Self-Defense from the MPC perspective imperfect justification partial aff defense to murder
i. In general, D is justified in using force on another if he believes that such force is immediately
necessary to protect himself against the exercise of unlawful force by the other person on present occ
1. Difference from CL: Actors belief need not be reasonable, just needs to be a subjective belief
in the need to use force from the circumstances AS HE BELIEVES THEM TO BE
(HOWEVER LOOK TO 3.09 below need to evaluate whether D evaluated situation
recklessly or negligently). Also, no imminency req.
ii. 3.04 (1): Use of Force in Self-Protection: When the actor believes defensive force is immediately
(imminently) necessary on the present occasion

25

f.

1. Exceptions: 3.04(2) when the use of force is not justifiable: 3.04(2)(i): to resist arrest;
3.04(2)(ii): to resist force used by the occupier of property , except when (a) The actor is a
public officer; (b) The actor has been unlawfully disposed of the property and is trying to reenter; (c)The actor believes such force is needed to protect himself against death or serious
bodily harm
iii. Deadly force: permitted only under circumstances listed in 3.04(2)(b): rape, death, serious bodily
injury, kidnapping. NOT PERMITTED if D provoked the use of force against himself (3.04(2)(b)(i),
or knows he has the option to safely retreat (3.04(2)(b)(ii). However, D has option to not retreat from
home or place of work (except in specific circumstances listed under MPC)
iv. 3.05: D can use defensive force to protect a third party, if he is justified in using such force to prevent
harm to himself AND if the third party would be justified in the use of such force
v. 3.06: The use of force is justifiable for protection of property ONLY WHEN D has first requested the
intruder to leave
vi. 3.07: Use of Force in Law Enforcement
vii. 3.09: Mistake of Last as to Unlawfulness of force; Recklessness/Negligence - Belief in adequate threat
of unlawful force when the self-defense justification is unavailable
1. When D is not just mistaken, but is reckless or negligent in evaluating the adequacy of the
threat, the proportionality of the response, etc.
2. Distinguishes between two types of imperfect defense, which mitigates murder to mansl.
(CAN BE A PARTIAL AFFIRMATIVE DEFENSE Ds unreasonable assessment of the
need for self-defense can lead to conviction for either reckless or neg homicide crime (if
reckless, can be convicted of vol mansl; if negligent then can be convicted of invol mansl.)
3. 3.09(1)(a): D erroneously believed that the force used against him was unlawful AND 3.09(1)
(b): Ds erroneous belief is due to ignorance or mistake of criminal law
4. Reckless/negligent: 3.09(2): require non-reckless or non-negligent (reasonable) belief.
1. Unreasonable reckless or negligent mistake mitigates murder to reckless/negligent
homicide crimes MPC does not allow reckless or negligent evaluation jury
needs to determine this (see pg 22 for more info)
2. Under 3.09, BOTH recklessness AND negligence constitute UNREASONABLE
viii. Proportionality requirement: 3.04(2)(b): Deadly force can be used only if D believes force is
necessary to protect against death, serious bodily harm, kidnapping, or sex compelled by force/threat
1. Not justifiable when: The actor provoked the use of force against himself OR the actor knows
he can avoid the necessity of using deadly force by retreating to completely safety MPC
mandates retreat if possible, except when (a) The actor is not required to retreat from his own
home or (b) The actor is a public officer justified in using force
2. For protection of property (3.06(d): use of deadly force justifiable
The reasonableness standard: Goetz v. MPC v. Leidhom (subjective)
i. Goetz: the reasonable person in the actors situation - using negligence analysis (reasonable = nonnegligent). The right to kill another in self-defense is triggered where the actor honestly and
reasonably believes in need to use deadly force, even if hindsight reveals that such belief was incorrect
1. We can make mistakes re: adequacy of the threat/necessity of violence, but a reas mistake can
be a non-negligent evaluation of the situation doesnt require predictive accuracy. A
combination of objective and subjective standard
2. NY uses the NORMATIVE reasonable person negligence test of ordinary competence
dont take into account his past experiences or special pathology (i.e. paranoia, racial beliefs
unless relevant to some legal aspect of self-defense, i.e. nature of the threat, necessity of
acting to ward it off ), only obj. facts (actors physical size etc) and special skills/expertise in
understanding social cues (# of aggressors, size, etc.), Circumstances facing D or his
situation; Physical movements of potential assailant; Relevant knowledge D had about the
person; Physical attributes of all people involved; Prior experiences of D which could provide
a reasonable basis for a belief that another persons intentions were to injure or rob him or
that the use of deadly force was necessary under the circumstances
3. Jurors must decide whether Ds beliefs would be held by a reasonable person in Ds situation
the objective part of the inquiry
4. Unreasonable evaluation: an imperfect self-defense claim in SOME but not all jurisdictions
ii. MPC: imperfect justification: an unreasonable belief in the existence of justificatory facts negates the
M/R required for murder it is a mitigation to go down to manslaughter

26

1. A person who genuinely believes, however unreasonably, in the existence of justificatory

facts has a defense to any crime requiring purpose or knowledge.
1. Recklessness: belief must be not only sincere but also non-reckless
2. Negligence: the mistaken belief must be reasonable/non-negligent
3. Less than avg intelligence not considered in evaluation of reasonableness
2. Two steps:
1. First, 3.04(1) (believes use of force is necessary) and 3.04(2)(b) (believes deadly use
of force is necessary) subjective terms providing for a defense. Look at the
circumstances as D BELIEVED THEM TO BE
i. If these provisions left unqualified, an honest belief in the necessity of using
deadly force would be a defense to ANY charge of assault or homicide, no
matter how reckless or negligent the belief was
2. Second, 3.09(2): if D reckless or negligent in forming the belief of necessity of
defensive force, then the justification unavailable as defense (Ex: if D
unreasonably/negligently believed that V was about to kill him, he has a self-defense
defense if he is charged with P/KN/Reck killing, but not if charged with negligent
homicide. Ex 2: D consciously disregards a subst and unjust risk that V is not an
aggressor, then Ds recklessness as to facts = guilt)
iii. Leidholm/subjective standard the features of D that do come in in reasonable actors situation:
1. D may act in self-defense, not only when a reasonable person would do so, but when one with
the particular qualities of the individual himself would do so. i.e. Langley: a timid short male
would be evaluated according to the standard, reasonable timid and short male
2. Any special expertise that D might have in interpreting the situation (i.e. if Goetz can
convince a jury that his prior experience of being robbed gave him expertise in recognizing
the situation, then jury can consider it. Also, Ds physical size.
3. Not considered: racism, other things courts dont want to legitimate
4. Leidholm wants to legitimate battered womens syndrome test to be considered by the jury
including her learned helpnessness
iv. Policy reasons to reject the Leidhom standard: if we privilege the irrational beliefs in 1-3, then the
actions cannot be justified
g. Battered womens syndrome/learned helplessness in relation to the reasonable person standard (Dress 258)
i. Learned helplessness explains why D did not leave abusive situation may bolster subjective
credibility, and give a context for the womans reaction combats pros attempt to min. severity of past
abuse however, MPC requires a normative definition
1. Validity of theory is problematic because some women react to abuse by becoming passive,
and do not kill their abusers. Learned helplessness does not explain passivity
ii. Relevance of expert testimony of BWS to a self-defense claim: Expert testimony about past abuse:
when woman testifies she believed more abuse was about to occur, jury is less likely to minimize the
severity of the imminent threat shows that she made a reasonable evaluation of the imminent threat,
which justifies her violence to prevent more violence. This is important to normative inquiry that she
has some special expertise in interpreting subtle behavioral cues as a sign of imminent violence
1. However, testimony should not be admitted if presented to weaken the reas person standard
iii. Some courts, out of sympathy for Ds, are weakening the imminency requirements
1. The law normally requires that a threat has to be immediate, to protect both potential
aggressor and victim; but if abuse victims wait for that moment to react, it might be too late
2. MPC: no clear imminency rule battered women have a better chance of arguing that
violence was immediately necessary to prevent future harm
1. Jahke (455): court rejected a full self-defense claim full imminency rule
2. Janes (455): weakening of imminency rule in the near future
iv. However, other situations such as urban survival syndrome Osby 456) do not work - The law does
not want to legitimate preventive defensive violence by individuals
DURESS/situational excuse an affirmative defense that D was denied a fair opportunity to comply with criminal law.
Rationale: takes into account external constraints on a persons capacity to choose to comply with the law people can be
coerced to do something wrong (and voluntarily act), but are not morally culpable/should not be punished for it
a. All criminal law excuses assume dealing with morally accountable agents, who have the minimal capacity to
make the correct or at least reasonable/non-negligent choice. However, unjust to punish someone who
committed his crime under the compulsion of threats that other ord people could not have resisted

27

II.
III.

IV.

CL vs MPC: under MPC D is coerced if person of reasonable firmness would have been, but under CL if no
imminency then no duress defense available. However, both emphasize unlawful force & threat of bodily injury
The normative standard: standard of unlawful force sufficient to coerce both D and a reasonably firm person. The
criminal laws concept of moral capacity is a minimal threshold concept.
i. MPC 2.09(1): a person of reasonable firmness could not have resisted the coercion, so that physical
force had to be involved requires not just a showing that D was himself truly coerced (perceived no
way of avoiding the threat), but also a showing that a person of ordinary character strength could also
have concluded that there was no fair opp to avoid committing the crime given the coercive threat
thus, for ex., if D was extraordinarily susceptible to threats, that cannot be admitted because it
destroys norm stan. Need to apply this to Ds actual situation
1. vs. CL: MPC applies the normative standard for jury, but CL has a rule-like def (see below)
2. Allowing the subjective standard could allow for Ds fabrication
3. Retributivist: a culpability standpoint we are dealing with morally accountable agents, who
are assumed to have the capacity to reasonably evaluate their choices, and who have the
capacity to have done better
4. Negligence is a useful level of culpability: though you have been negligent, you are still a
morally culpable agent
ii. However, some subjectivity: the jury will take into account the stress and panic you were under at the
time, and determine whether or not you were negligent and how you responded moral agency is a
threshold concept
iii. Duress defense does not permit Ds to focus on their subjective experience of being coerced the
inanity defense is the only true incapacity excuse challenging Ds status as a moral agent. Even
ordinary people who are more easily coerced are still considered moral agents, and do not have an
incapacity excuse.
b. Elements of duress (CL) - Haney
i. (Threat of) immediate, unlawful physical harm to D or a third party by another human
1. CL: a rule-like definition of the amount of unlawful aggression enough to trigger a duress
defense (i.e. a slap or threat of rep harm is not sufficient to get the duress defense to the jury)
under common law, there must have been death or severe bodily harm
a. Why limit the nature of the threat to unlawful physical harm: 1) Ut: by opening up
coercion to almost any source, then duress becomes more an incapacity excuse that
almost everyone could raise; want to avoid varying legal norms; 2) unlawful
physical aggression is a verifiable type of threat that even a person of reasonable
person would succumb to. Criminal law does not want trials where issues of moral
accountability becomes the issue strong retributivist position
2. Immediacy: when D has time or opportunity to alert the police, then no duress excuse
ii. Ds well-grounded fear that the threat will be carried out an objectively reasonable belief the
reasonable person in Ds situation would have believed there was an immediate threat
iii. Ds/third persons lack of a reasonable opportunity to otherwise avert the threatened harm
1. When there is a readily available lawful way of avoiding the coercive threat, no excuse
iv. D was not at fault in exposing himself to the threat (i.e. did not vol. join a gang)
1. Some but not all jxds adopt this reckless forfeiture to duress provision
2. if there is a lawful way to avoid the threat, or to call authorities, then no excuse
c. MPC (2.09) does not require death or serious bodily harm; just any level of unlawful force. Duress is ok if D
was compelled to commit the offense by use of unlawful force against D or another, and a person of reasonable
firmness would have been unable to resist. (a slap would go to the jury)
i. (1): it is an affirmative defense if D was coerced by the use, or threat of use, of unlawful force against
him or a third party, which a person of reasonable firmness in his situation would not have been able
to resist normative standard
ii. (2): Recklessness: duress is unavailable as a defense if D recklessly placed himself in a situation where
he could be subjected to duress (if did so negligently, then he can only be charged with a negligence
crime).
iii. 210.6(4)(f): Duress is a mitigating defense to intentional homicide
iv. Felony murder: if D has a duress defense to predicate felony, this will preclude conviction for FM
Battered women & duress Dressler 339 will D be permitted to introduce expert testimony about BWS? Purpose
of the testimony is to show that she subjectively feared her abuser even in absence of direct threat, and such fear of

28

imminent harm was reasonable. Courts more likely to admit evidene to show that she had special knowledge of the
circumstancse, rather than support the claim that she feared her claim was reasonable
a. However, if she had realistic opportunity to leave before the coercive threat was realized, that would be
relevant to why she could not get a duress defense
Summary of duress
Nature of the threat
(in both CL and MPC, the nature of
the threat triggering duress has to be
unlawful physical harm)

CL analysis
(I.e. Haney p. 483)
1. Imminent threat of serious bodily
harm or imminent death to D or a 3rd
party
2. Ds well-ground fear that the threat
will be carried out
3. D or 3rd partys lack of a reasonable
opportunity to otherwise avert the
threatened harm

Causes

1. Reasonable fear that threat will be

executed
2. Lack of reasonable way to avoid the
threat
3. Coercion must cause crime
1. D coerced to commit crime
2. Person of reasonable firmness would
have been coerced to commit crime

Excusing condition

Forfeiture of defense

1. Reckessly/negligently placing
yourself in coercive situation

MPC 2.09
Duress excuse
1. No imminency requirement
(immediacy of danger just one
circumstance of many to consider in
evaluating whether a person of
reasonable firmness would have been
able to resist the threat)
3. Unlawful physical harm (other forms
of harm, such as reputational, or just
very minor physical harm like a slap, do
not apply)
1. Coerced by force or threat of force
2. Crime must be the only way to avoid
the threat
1. D felt coerced to commit crime a
subjective inquiry (can look at personal
characteristics of D)
2. Person of reasonable firmness in his
situation would have been unable to
resist normative standard
Recklessly place yourself in coercive
situation no defense
Negligently place yourself can only
be charged with negligent crime

INSANITY DEFENSE A judgment about Ds moral responsibility. The one true incapacity excuse to challenge an agents
moral capacity it is a purely subjective moral capacity excuse, asking how Ds capacities were affected by his mental illness.
Designed to protect crim laws expectation of accountability.
I.
-Insanity is not a medical but legal term: refers to a legal judgment that D, because of a particular impact of mental
illness on his capacities, is not fairly treated as an accountable moral agent looking at the impact of Ds mental
disorder on his basic moral capacity
Attempts to ID those few severely disabled Ds who lack the minimal capacity for rational and voluntary choice upon which the
laws expectation of responsibility is predicated (the criminal law presumes that all individuals are capable of conforming their
conduct to its minimal dictates and exercising free will to make voluntary choice required for criminal responsibility
- Ds labeled in Ds labeled insane because their incapacity to comply with the law negates their culpability and demonstrates
both the futility and injustice of applying criminal sanctions to their conduct
A full affirmative defense to any crime not a justification but an excuse
I.
The defenses criteria for exculpation must ensure that the defence can only b e raised successfully in those
exceptional cases in which Ds mental disability has stripped him of the minimal mental capacity required for
criminal responsibility
Criminal law goals for punishing the mentally disordered D:
- Incapacitation of the dangerous (by civil commitment if they are beyond the reach of the criminal law)
1. Social control and rehab best served by confining the dangerously insane
- Retributivism inappropriate: If having mental disease or defect affects Ds capacity to exercise free will, then a man
who cannot reason cannot be subject to blame. Just deserts is dependent on moral responsibility for ones actions,
which in turn is dependent on ones rationality and self-control
- Deterrence ill-served: public cannot ID with an insane offender

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Procedures how different from criminal justice system: the mentally disordered D (mental condition determined by civil trial,
where govt has to prove D is mentally ill and dangerous) is sentenced to invol civil commitment. Burden of proof of clear and
convincing evidence. Depriving liberty at this point not criminal punishment b/c no moral condemnation yet.
For trial: look at Ds mental state at the time of the crime.
II.
There has to be proof of a mental disease or defect (which includes mental retardation) at the time of the crime
the triggering condition which must cause the excusing condition
a. Only psychoses qualify no character disorders, compulsive gambling, personality disorder, etc.
III.
The tests for insanity all have triggering condition of mental disease or defect which had specified incapacitating
effects at the time of the offense
a. MNaughten: D did not know the nature and quality of his act; OR if he did know it, that he did not know it
was wrong
i. Seen as the most restrictive account (except federal act): no volitional excusing condition and also
requires complete incapacity, which is against modern psychiatric knowledge
1. Useless because you cant prove intent to kill with someone who chokes thinking he is
squeezing a lemon unable to know difference between right and wrong, thus is
undeterrable and punishment has no purpose
2. It is also morally wrong to punish someone who lacks sufficient free will to control his
conduct
3. Focuses solely on cognitive disability, not volitional ability this is a problem for disorders
like kleptomania, where victims feel a huge compulsion to steal and are unable to control
(however kleptomania is still a personality disorder so does not qualify as mental disease)
4. Requires a severe psychotic break from reality (a la Joy Baker this would be a failure of
proof defense) Criticism that the MNaughten test requires conviction of psychotic
offenders who are not morally blameworthy
5. I.e. Joy Baker: first shot was done during a psychotic break from reality. However, second
shot she had diminished mental capacity of a child but still knew it was her aunt in this
sense euthanasia which = murder
b. Durham/product test: Was the crime a product of Ds mental disease or defect? causal inquiry: excusing
Ds crime because his mental illness caused him to commit it
i. Generally rejected: Experts are given complete discretion about whether or not mental illness caused
D to commit a crime but obviously if D was mentally ill at the time of the crime, their illness did
causally contribute to it
ii. Also, no sense to excuse an action just because something caused you to do it
1. Duress excuse: make a normative judgment that D because of a threat was denied a fair
opportunity to comply with the law
2. However, causation does not = compulsion. D still had a choice.
c. Volitional: Ds mental disease or defect deprived D of the capacity to exercise will, the capacity to choose
whether or not to engage in proscribed behavior
i. Technically, D acted voluntarily if conscious at the time of the offense
ii. However, mental abnormalities can impair a persons capacity to choose to comply with the penal law
and on the moral proposition that such a person cannot be fairly blamed for criminal acts that are
psychologically compelled
d. MPC: an affirmative defense - mental disease or defect that causes lack of substantial capacity to 1)
appreciate the wrongfulness of his act or 2) conform or control ones conduct (volitional prong) (either is
sufficient)
i. Wrongfulness: states determine whether it means legally or morally wrong
ii. Substantial capacity: vs. MNaughten complete incapacity: most mentally ill people are not
completely unable to perceive what everyone else perceives
iii. No longer the majority test after Hinckely
iv. 4.01(2): definition of mental disease or defect does not = an abnormality manifested only by
repeated criminal or otherwise anti-social coduct
v. 4.02(1): Evidence of mental disease/defect admissible if it can negate MR
vi. 4.02(2): evidence of capacity of D to appreciate wrongfulness of his conduct or to conform his
conduct can be taken into account at sentencing
e. Insanity Defense Reform Act (a stricter version of the Mnaugten rule)
i. Eliminates the volitional prong of the insanity defense, and requires D to establish an insanity claim
by clear and convincing evidence
ii. Differences: mental disease or defect must be severe

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IV.

V.

VI.

VII.

1. Distinction between psychoses (schizophrenia, bipolar disorder, etc.) which are so serious
that D has great difficulty either interpreting reality cognitively, or his emotional responses to
reality are very off-kilter; and personality disorders (i.e. Torniero gambling compulsion is
not a severe mental defect)
2. This narrows the scope of who can raise the insanity defense looking at the impact of Ds
mental disorder on his basic moral capacity
iii. THIS PRECLUDES AN INSTRUCTION THAT MENTAL ILLNESS NEGATED INTENT TO KILL
having mental illness is not a failure of proof or affirmative defense
iv. Change in the excusing condition: from know to appreciate
1. Cognitive knowledge of normative concept of right vs wrong, vs. affective understanding:
both emotional and cognitive appreciation of the consequences or significance of Ds choices
a. To be a fully accountable moral agent, you need both affective understanding and
cognitive knowledge this is more consistent with current psychology
Hypo how the different tests relate
a. A woman is charged with kleptomania
i. MNaughten: only focus on whether D knew her conduct was right or wrong. Thus, she could be
convicted because she hid stolen goods under her shirt, so she knew what she was doing.
ii. Insanity Defense Act: Kleptomania is a compulsive personality disorder that is not a psychosis: does
not interfere with Ds ability to perceive reality
iii. MPC: independent excusing condition that focuses on impulse control: kleptomaniacs are unable to
conform to the law however, it is not impossible for them to resist the impulse: they still have a
substantial capacity to appreciate wrongfulness of their act
The insanity defense and expert testimony
a. Pohlot: D charged with attempted murder to hiring someone to kill his wife, after she abused him.
i. Expert testimony: Ds unconscious motivation (to get back together with his wife) generated Ds
conscious mental state (wanting to kill her)
ii. D argued that his mental illness negated his intent to kill failure of proof defense
iii. However, this did not hold up because most mental illness does not logically dispute your desire or
purpose to commit a crime, it just explains that desire or purpose partial affirmative defense
Substantive due process and Procedural due process
a. Substantive due process: what is the states substantive grounds for justifying the states deprivation (and
duration of deprivation) of individuals liberty?
b. Procedural due process: What procedures are constitutionall required to ensure a fair and reliable determination
of the states substantive justification for liberty deprivation?
DIMINISHED CAPACITY a partial affirmative defense (intent to commit a crime is still present, but
culpability is reduced) how to deal with mentally disabled but legally sane individuals who frustrate the criminal
laws attempt to draw a sharp line between the mad nonresponsible actor and the bad culpable offender who
merits full punishment
a. M/R model (FAILURE OF PROOF DEFENSE for the crime in question) - results in the reduction of the
offense to a lesser one that does not require proof of the mental element at issue seeks to use evidence of
mental abnormality to cast reasonable doubt on the presence of an MR element (i.e. D seeks to intro evidence
of mental retardation to negate MR as to lack of consent in rape)
b. Exists because evidence of Ds mental illness might be able to dispute existence of MR in the crime
c. Failure of proof defense that asserts that D did not have the capacity to form the required M/R (not that he DID
have the capacity, but in this instance did not, which is a separate failure of proof defense). Thus, D should be
allowed to introduce relevant evidence of mental abnormality which disputes the existence of any statutory
mental element
i. Evidence is only admitted if it challenges M/R (conscious intent) it should be considered by the jury;
D must be given opportunity to show that the state has not proven all elements of the crime beyond a
reasonable doubt
ii. MPC 4.02: Evidence that D suffered from a mental disease/defect at the time of conduct is admissible
if it is relevant to prove that he lacked a MR that is an element of the charged offense. This would
acquite them of the crimes charged, though they could be guilty of lesser offenses - only applies to
purpose, knowledge, or reckless crimes; CL limits to specific intent crimes (i.e. can raise evidence of
an abnormal mental condition to show that D did not form SI to kill; but he could not raise this
evidence to disprove rape, a GI crime).
iii. Limited impact if properly applied; most evidence doesnt dispute M/R but explains why actor
engaged in the conduct

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V.

VI.

iv. Not needed (argument): even insane people can form intent to kill, even if they think God told them to
d. Reasons for fearing that trial courts will not properly apply it - Reasons to bar psychiatric testimony: too
confusing and sophisticated for the jury
e. Diminished responsibility model (only exists in UK; reduces murder to vol. mansl. or 2nd murder) another
partial affirmative defense CB p. 824: suffering such abnormality of mind as substantially impaired his
mental responsibility for his acts and omissions in killing ret. grading scheme
i. Partial excuse rationale to mitigate degree of criminal liability for sane but mentally disabled offender
charged with murder allows for reduction whenever the jury believes that Ds mental disability
reduced his culpability, as opposed to his normal counterpart who commits the same crime, whose
capacity for self-control and rationality is not impaired
ii. Analogy to provocation or EEMD partial excuse (closest analogy in U.S. is EEMD)
iii. Why: culpability judgments cannot be adequately addressed by M/R itself, even though intent to
commit the crime is still present, so that culpability is reduced
iv. Doesnt exist in any U.S. jurisdiction (closest is EEMD defense)
b. Rationales for recognizing the defense
i. Ameliorate the narrow definition of a full insanity excuse
1. Often mental abnormality does not qualify as full insanity
2. Applies most in MNaughten jurisdictions: this defense permits juries to consider evidence of
Ds impaired volitional controls that theoretically cannot be used to demonstrate his insanity
3. Most U.S. jurisdictions employ insanity tests with explicit volitional components
ii. Prevent execution of mentally disabled but sane offenders
1. 8th amendment seen to require individualized sentencing discretion for most capital offenses
iii. Permit more thorough and individualized inquiry into degree of offenders than is permitted by
statutory mens rea grading elements, such as premeditation and deliberation or malice
1. Two basic assumptions on which this justification rests
a. That the jury can make more sophisticated culpability judgments in distinguishing
between grades of homicide offenses when considering evidence of a sane Ds
mental abnormality hard for jury to make comparative culpability judgments
b. A showing of reduced culpability automatically mandates a reduction in criminal
liability to a less serious homicide offense this would rely on the assumption that
the jurisdiction relies on a retributive just deserts model, where the max level of
punishment is tied to Ds degree of culpability. Howver, most legislatures use the
mixed model of punishment which combines both ret and ut considerations, which
considers among other things Ds potential future dangerousness.
c. Others who reject this premise think d.c. should only be considered at sentencing
MPC approach: Mitigate murder to manslaughter if there is EMED for which there is reas explanation or
excuse
a. The issue is whether there is reas explanation or excuse, based on Ds psychological characteristics, for his
emotional disturbance at the time of the crime. Ds psychological makeup is relevant b/c the MPC provides
that the reasonableness of the actors explanation for his rage should be considered from the viewpoint of a
person in the actors situation, which includes his paranoid delusions and hypersensitivity, under the
circumstances as he believes them to be.
i. I.e. D introduced evidence of paranoid personality disorder which led him to have paranoid suspicion
and hypersensitivity to criticism. He irrationally believed his wife was cheating on him. Court allowed
instruction on EMED mansl.
Should the law recognize this partial excuse? Does the MPC? (EEMD for which there is reasonable excuse)
i. Deterrence: conduct is not deterrable i.e. weith insane actors
ii. Causation: no blame if conduct is caused by factors outside Ds control
iii. Character: conduct does not indicate bad character
iv. Free choice: if it does not exist, then D is not blameworthy D must have the capacity and fair
opportunity to understand facts relating to conduct, appreciate that it violates societys norms, and
conform it to the law

Suppose the strict liability crime is 'possession of a controlled substance within 100 ft
of a school zone." Obviously the accomplice will have to have knowledge as to the a/c of
'controlled substance' since that is what makes the a/r of possession non-innocent. But
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does the accomplice also have to have some m/r going to the a/c of 'within 100ft of a
school zone'?
---if the crime is sl as to the ac of within 100 ft, the same sl would apply to both
acc and principal, conversely, if neg goes to that ac, prosec must prove same culp
as to ac for both princ and acc

Involuntary civil commitment: a backup for those few indivs whose moral agency we should not respect because of some severe mental illness

why use criminal law to incapacitate them: higher burden of proof than in civil trial: beyond a reas doubt vs. clear and convincing evidence

1)
2)

what is so bad? Unfair? Dangerous about use of preventive detention (incapacitation justified for liberty deprivation based solely on f.. finding?
Why should we prefer criminal law as primary way we address and justify deprivation of liberty where incapacitation is the primary goal served? - Crininal law has built into it
minor constraints that dont allow us to do gross injustice to the criminal offender

Doe

Doe: a dangerous sex offender who suffered from personality disorders of pedophilia & exhibitionism do not qualify as severe mental illness, but mental abnormality
Crane: KN has weakened requirement; now only mental abnormality is sufficient for incapacitation
Doe entered a park with intention to make sexual contact which a child, but then changed his mind and left. Police thought he posed a significant risk of future dangerous behavior?
What is the best mechanism of coercive social control to correct this problem?
o Criminal law: Utilitarian goals: incapacitation not preventing person from committing crimes in society, but a judgment that some criminals are dangerous, and we
selectively incarcerate the most dangerous with the judgment that they are likely to reoffend in the future
o Crane: incapacitation is one state interest served by the involuntary civil commitment model.
o What is so bad/unfair/dangerous about a pure preventive detention system, based solely on a finding of future dangerousness?

Such a system would allow us to incarcerate Doe govt could show clear and convincing evidence that he posed a significant danger to others because of
his personality disorders

However, problem with this kind of system: even if we only use it at first to incapacitate the most clearly dangerous individuals, there is the slippery
slope concern that once you justify a system to incarcerate solely based on future dangerousness, it is hard to confine the system to just those kinds of
people

What if the system would not have that slippery slope problem, and only truly future dangerous people are incarcerated still a problem: it shows a lack
of respect for free will in a liberal state that assumes all of us have minimum capacities to make choices about our contemplated actions, this system
would have a lack of respect for that capacity to make the choice
Involuntary civil commitment: a backup for those few individuals whose moral agency we should not respect because of some severe mental illness
-thus, when KN weakens requirement to just individuals that commit dangerous acts, this begins to 1) not respect the moral agency status of some people, and not wait for them to make
choices; and 2) instead of relying on criminal law for social control, the involuntary civil commitment system could be the primary, not backup, system to serve incapacitation goals
- Why refer to criminal law as primary system of social control to incapacitate dangerous people in our society?
o In criminal law, procedural due process constraints are higher burden of proof beyond a reasonable doubt, vs. just clear and convincing evidence of future
dangerousness: a prediction for which the most reliable indication is past acts
What is wrong with criminal laws response to Doe and incapacitating him? Why cant criminal law be the most efficient form of incapacitation of dangerous individuals?
o Criminal law has to wait until an action has been committed the act requirement. This makes it more inefficient. However, we could weaken the act requirement in a
statute
o Incapacitation is not the only punishment goal
o Proportionality: criminal law has built in a retributivist constraint: punishment still has to be proportionate to the past harm culpably committed

If exhibitionism is the crime, then only 1-3 years not enough incapacitaiton

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o Why prefer criminal law (question 2 above): answer: the criminal law wont let us be completely efficient in focusing just on incapacitation. If no proportionality
principle, dont need to

It is addressing purposes of punishment that sometimes conflict with each other

o Utilitarian might not want to get rid of certain retributivist constraints on states ability to serve incapacitation: to send out norm reinforecemen and deterrence message,
need to distinguish between more and less dangerous

Cost of holding people efficiency scarce resources cant incapacitate everyone

Incapacitation-focused society: would be more totalitarian

Free will, though a retributivist concept, still promotes social welfare because promotes notion of responsibility and accountability

social utility to retributivist justifications of punishment

There are degrees of appreciation of right and wrong
System that cares about utilitarian goals, not caring about whether doing justice to an individual. So criminal laws account of moral agency is by design modest for utilitarian
reasons.
Carbarga: is Alex fairly blamed for becoming a pedophile? He learned a norm system antithetical to our own, while he was a child before becoming a fully accountable moral
agent.

Utilitarians: culpability principles of ret. serve a useful social welfare function limits state power over the individual
Crane: not enough for jury to find that D is mentally abnormal. Want to require them to make an independent finding that he has great difficulty controlling himself
Scalias critique of great difficulty of self-control: why does he argue that once D is shown to have the requisite mental abnormality, that is enough to commit hit?
P. 676: KN statute requires that the mental abnormality make it difficult for person to control his dangerous behavior Scalia: legislature already requires a finding that D has lack
of self-control, that his mental abnormality predisposes the individual to act in this way. So finding pedophila est. a clear causal linkage between that condition and future acts, that
does not compel a finding tthat that person will do it in the future
Causation vs. compulsion: all actions caused by our previous rational choices.
Find great difficult in self-control should care that we should only subject to invol civil commitment people who are not morally accountable agents. Need to respect the choices
of morally accountable actors who can still control themselves, albeit with difficulty thus Breyers requirement of finding great difficulty of controlling his bad choices unfair
to blame you when you have the wrong choice
Duress: if you have no lawful way of avoiding a threat without committing a crime, you are not blamed because you have been denied a fair opportunity to comply with the law
Breyer trying to limit the civil commitment system to mental abnormality that will really have a significant impact on someones moral capacity. 673 distinguish between the
dangerous sexual offender who can be subject to civil commitment vs. someone who is dangerous but typical
What is at stake: Do you stick to relying on the criminal law? Or do you go toward pure preventive detention?
Foucha - Automatically committed to an institution
LA statute: NGIs cannot be released unless a judge determines that they are no longer mentally ill and a danger
Foucha was not mentally ill: had a drug-induced psychosis. However, cant guarantee he wont be a danger in the future he acted out at the Feliciana institution. Because of the minor assaults,
erring on the side of over-confinement
People who might be a future danger, but no longer mentally ill, needed to be released LA statute violated that.
644: Kennedys dissent: this is a criminal case relying on the criminal model of liberty deprivation (criminal law) to treat NGIs, not civil commitment model. He was found not guilty by
reason of insanity substantive guilt shown at the trial, all element of the crime shown beyond a reasonable doubt. Only reason not guilty was because of insanity defense treating that as the
equivalent of a guilty verdict.
if relying on criminal law model, how long can we confine him? Look to the maximum sentence allowed for conviction.
OConnor joins majority because LA statute is overbroad
Commitment doesnt respect the fiction of free will
Alternate form of incapacitation; however less desirable because no proportionality

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