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Criminal Law Outline

Purposes of Punishment

Punishment suffering purposely inflicted by the state because one of its laws was violated.
It connotes the blaming and stigmatizing of the perpetrator.
We punish only to the extent that it benefits society.
Forward-looking seek to justify punishment on the basis of the good consequences
it is expected to produce in the future.
Punishment itself is an evil because it inflicts harm, so we must punish only to the
extent that it achieves some good:
Specific deterrence D may decide not to commit future crimes.
General deterrence Potential perpetrators learn of Ds punishment and
decide not to commit crimes, instills fear.
Jeremy Bentham, pg. 92 When a man perceives that pain may be the
consequence of an act, he will be prevented from performing it if the
magnitude of that pain is greater than the magnitude of the pleasure or good
he expects to be the consequence of the act.
Paul Robinson, pg. 93 For punishment to deter violators, three prerequisites
must be satisfied:
1) Potential offender must know the rule,
2) Must perceive the cost of violation as greater than the benefit
3) Must be able and willing to bring such knowledge to bear on his conduct
decision at the time of the offense.
If punishment is too high, offenders may commit more severe crimes (kill all
the witnesses) because they are already subject to the highest possible
punishment, pg. 94.
Disables criminals ability to act again (usually by imprisonment).
John DiIulio, pg. 102 balances societal cost of keeping criminal locked up
and preventing the crimes he would commit if he was out in the community.
Jacqueline Cohen, pg. 103 More cost effective strategy would be to target
offenders who are most likely to commit serious crime to longer periods of
incarceration, but there are ethical concerns to this approach:
1) Punishment should be deserved, and two people who have committed the
same crime deserve equal punishment.
2) It is unfair to punish people for crimes they have not yet committed, and
might not commit if released.
3) Many variables that would be considered to determine offenders who will
likely have higher rates of recidivism have the effect of discriminating
against the poor and non-white.

Michael Moore, pg. 98 The ideal that we should rehabilitate offenders so
that they can lead flourishing and successful lives is paternalistic, allocates
scarce societal resources away from more deserving groups, and recasts
punishment in terms of treatment, which allows moral blindness.
Robert Martinson, pg. 99 Some programs do reduce recidivism for some
offenders under some circumstances.
People who do wrong acts that inflict harm on society deserve punishment.
Backward-looking seek to justify punishment on the basis of the offenders
behavior in the past.
Immanuel Kant, pg. 80 the undeserved evil which any one commits on another is to
be regarded as perpetrated on himself, principle of equality requires equal retaliation.
Michael Moore, pg. 81 punishment is justified by the moral culpability of those
who receive it, we are justified in punishing because and only because offenders
deserve it.
H.L.A. Hart, pg. 82 it appears to be a mysterious piece of moral alchemy in which
the combination of the two evils of moral wickedness and suffering are transmuted
into good.
Herbert Morris, pg. 82 punishing criminals restores the equilibrium of benefits and
burdens by exacting the debt that they owe to society.
Regina v. Dudley and Stephens, pg. 73 (Starving men lost at sea ate companion) the
absolute divorce of law from morality would be of fatal consequence, killing
someone to save your own life when they pose no threat to you is murder, sometimes
there is a duty to die. But a reasonable person would have done the same thing, and it
is impossible to deter someone on the brink of death because dying is worse than any
other punishment.

Actus Reus

Actus reus is either a voluntary act or omission.

Insufficient for culpability:
1) Thoughts or evil intent only
a) Policy even innocent people have harmful thoughts, and people should only be
punished for acting on them.
b) Policy thoughts are not deterrable.
c) Policy a free society flourishes from free thinking.
2) Status (no crime of being a drug addict)
Jones v. City of Los Angeles, pg. 183
Voluntary Acts
A voluntary act is a consciously willed bodily movement by D.
Generally, a person is not guilty of a criminal offense unless his conduct includes a
voluntary act.

Martin v. State, pg. 182 (D convicted of being drunk in public, but was taken into
public by police, so conviction overturned)
Broad reading of Martin all elements of the crime must be voluntary
Narrow reading of Martin only the trigger element needs to be voluntary, but its
difficult to say which the trigger element is.
MPC 2.01, pg. 1081 A person is not guilty of an offense unless his liability is based
on conduct which includes a voluntary act (at least one) or the omission to perform
an act of which he is physically capable. The following are not voluntary acts:
1) A reflex or convulsion
2) A bodily movement during unconsciousness or sleep
3) Conduct during hypnosis or resulting from hypnotic suggestion
4) A bodily movement that otherwise is not a product of the effort or determination
of the actor, either conscious or habitual
When not self-induced, unconsciousness is a total defense.
People v. Newton, pg. 184 (D shot cop after being shot in the stomach and going into
a reflex shock condition)
Acts done while sleepwalking are not voluntary.
Cogden, pg. 188
D is liable if he had knowledge of potential unconsciousness and consciously
disregarded the risk (voluntary act requirement can have an expanded time frame)
People v. Decina, pg. 189 (D knew he was subject to epilepsy and drove anyway,
ended up having seizure and killing someone)
Habitual action done without thought is voluntary action.
MPC Commentary law cannot hope to deter involuntary movement or to
stimulate action that cannot physically be performed.
If D did not voluntarily commit a wrong, then he did not intend to commit a
wrong and should not be punished.

Omission Liability
D is not guilty of a crime for a failure to act even if the failure permitted harm to
another, the omission is morally reprehensible, and D could have acted with no risk to
personal safety unless:
1) D had a legal duty to act
2) The omission was the cause of the harm
3) D had the capacity to act
Simple omission liability breach of statutory duty to act (supposed to register your
gun, but you dont)
Complex omission liability commission by omission, statute criminalizes causing
harm and you cause harm by failing to act (crime to cause child abuse, and you dont
feed the child)
Legal Duty
D has a legal duty when:
1) A statute imposes a duty to care for another (good Samaritan laws)

2) One stands in a certain status relationship to another

a) Parents have a duty to minor children and spouses have a duty to each
other, but siblings owe no duty to each other, parents owe no duty to
adult children, and adult children owe no duty to parents.
Pope v. State, pg. 194 (D charged with child abuse because she invited
a mother and baby to stay with her and the mother beat the baby but D
did not get help, but conviction overturned because she did not have
the requisite status relationship to the baby)
People v. Beardsley, pg. 202 (Married D spent weekend with
acquaintance, who overdosed, and he failed to call for help for her
no duty)
People v. Carroll, pg. 202 (D stepmother charged with child
endangerment for failing to prevent her husband from killing his
daughter duty)
State v. Miranda, pg. 203 (D live-in boyfriend failed to protect baby
from beating inflicted by his girlfriend, babys mother no duty)
b) Policy: gender dynamic in who is liable women prosecuted for not
being maternal, but no such standard for men (or could just be no legal
3) One has assumed a contractual duty to care for another
Jones v. U.S., pg. 193
4) One has voluntarily assumed the care of another and so secluded the
helpless person as to prevent others from rendering aid, OR
Jones v. U.S., pg. 193
5) One has culpably placed another in peril
Jones v. State, pg. 205
Jones v. U.S., pg. 193 (D failed to provide for baby conviction overturned
because trial court did not instruct that D must be under legal duty to attach
Capacity to Act
Spectrum of action
1) Omission (liability)
2) Cardwell ineffectual actions (liability)
3) Actions reasonably calculated to achieve success no success, some
success (no liability)
4) Successful act (no liability)
Commonwealth v. Cardwell, pg. 204 (Ds husband sexually abused her
daughter, D tried to take daughter and leave but her mothers house burned
down, months later daughter ran away, conviction for child abuse upheld
because her actions were not reasonably calculated to achieve success.
Policy: Since even acts can qualify as omissions, Ds guilt is determined by
moral judgment)
Defense of impossibility generally very narrow limited to physically

Mens Rea

For liability, actor has to commit actus reus with a particular state of mind (mens rea).
ID material elements (ex. Burglary)
1) Conduct act or omission (enters and remains in a building unlawfully)
2) Result (none)
3) Attendant circumstances any other aspect the statute requires for conviction (building is
inhabited) (Specific intent: with intent to commit a felony therein)
1) General only requires proof that actor committed actus reus with a culpable or
blameworthy state of mind
2) Specific requires proof of a particular state of mind (intent to commit an act not part of
the actus reus, special motive in committing the actus reus)
Purposely and knowingly are considered to be intentionally.
The prescribed culpability requirement applies to all elements unless a contrary purpose
plainly appears.
MPC Mens Rea Terms when the statute does not give the mens rea, the minimum
requirement is recklessness.
Purposely MPC 2.02, pg. 1082
A person acts purposely with respect to a material element of an offense
1) If the element involves the nature of his conduct or a result thereof, it is
his conscious object to engage in conduct of that nature or to cause such a
2) If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes they exist
Knowingly MPC 2.02, pg. 1082
A person acts knowingly with respect to a material element of an offense
1) If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that
such circumstances exist
2) If the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result
Recklessly MPC 2.02, pg. 1082
A person acts recklessly with respect to a material element of an offense
1) He consciously disregards (subjective) a substantial and unjustifiable risk
that the material element exists or will result from his conduct.
2) Risk must be such that disregarding it involves a gross deviation from the
standard of conduct that a law-abiding person (objective, reasonable
person) would observe in the actors situation (subjective as to situation)

If D considered the risk and unreasonably decided that it would not occur,
there is no recklessness.
Regina v. Cunningham, pg. 214 (D pulled gas meter off the wall to get the money
out, and it released a gas that went through the wall and killed a neighbor
conviction overturned because malice requires actual intention to do the
particular kind of harm that in fact was done or recklessness as to whether such
harm should occur or not)
Negligently MPC 2.02, pg. 1082
A person acts negligently with respect to a material element of an offense
1) He should be aware (objective) of a substantial and unjustifiable risk that
the material element exists or will result from his conduct
2) Risk must be such that the actors failure to perceive it involves a gross
deviation from the standard of care that a reasonable person (objective)
would observe in the actors situation.
3) Must consider nature and purpose of conduct and circumstances known to
the actor (subjective)
Strict Liability
Strongly disfavored, not applicable except for felony murder and sex offenses
with victims under 10 years old.
Regina v. Faulkner, pg. 216 (D went to hold to steal rum and lit a match to see
better, and the rum caught fire and destroyed the ship charged with maliciously
setting fire to the ship conviction overturned because you cant bootstrap the
mens rea from one offense to another)
Retribution Were calling D a criminal, so he should have to be aware that he was
doing something bad at the time to deserve punishment.
Deterrence its difficult to deter someone from taking risky behavior if it didnt
occur to them that it was risky.
Deterrence punishing negligence gives an incentive for people to be more aware of
their behavior.
The common laws mens rea terms are often contradictory and confusing, so we
should follow the MPCs concept of mens rea.
Bootstrapping is unfair because D is already being punished for the act he had the
mens rea for.
Bootstrapping is fair because D was doing something morally wrong and has general

1st Degree Murder vs. 2nd Degree Murder
1st degree murder is an intentional killing that is willful, deliberate, and premeditated.
2nd degree murder is an intentional killing that is not willful, deliberate, and premeditated.

Specific intent to kill:

May be found from Ds words, conduct, and attendant circumstances.
May be inferred from intentional use of deadly weapon on vital body part of
another human being.
Commonwealth v. Carroll, pg. 383 (D shot wife in bed after argument, guilty
of first degree)
No Time Between Jurisdictions
No appreciable space of time between the formation of intention to kill and
act of killing is required.
Premeditation and deliberation may be formed when killer is pressing the
Young v. State, pg. 385 (D playing cards, scuffle broke out, guilty of first
Commonwealth v. Carroll (D shot wife in bed after argument, guilty of first
Time Between Jurisdictions
There must be some period between the formation of the intent to kill and the
actual killing that indicates prior calculation and design.
Must be opportunity for some reflection on intention to kill after it is formed.
State v. Guthrie, pg. 387 (Coworker snapped D with towel, D stabbed him,
reversed and remanded)
Proof of premeditation:
1) Planning activity
2) Facts about Ds relationship with V that indicate motive
3) Evidence regarding nature or manner of killing
State v. Guthrie, pg. 388 (Note 1)
Policy Considerations
Allowing no time between formation of intent to kill and killing eviscerates
the distinction between first and second degree murder.
The legislature has chosen to have two different crimes; courts must keep a
meaningful distinction.
The requirement of premeditation is met whenever there is a conscious
purpose to bring about death no reason to differentiate between the degree
of culpability on the basis of elaborateness of the design to kill.
Commonwealth v. OSearo, pg. 385
Would be unconstitutional because the distinction would be arbitrary, so it
would violate due process. State v. Thompson, pg. 386
Purposes of punishment:
1) Retribution 1st degree murderers are more culpable, 1st degree murders
are the worst murders.
2) Deterrence if 1st degree murders are the worst, they need the most
deterrence by stricter punishments.

Are premeditated (1st degree) murders really the worst?

1) Pillsbury we should look at the motive morally disdainful?, pg. 389
2) State v. Forrest, pg. 390 (D, sobbing, shot terminally ill father in hospital,
guilty of first degree)
3) People v. Anderson, pg. 389 (D killed stepdaughter, stabbed her 60 times,
blood in every room, some wounds postmortem, guilty of second degree)

Murder vs. Voluntary Manslaughter

Intentional killing + the provocation defense = Voluntary manslaughter
Intentional killing + Extreme Emotional Disturbance = MPC manslaughter
Provocation The Common Law Approach
A provocation defense is satisfied when:
1) D acted in the heat of passion (subjective)
2) as a result of legally adequate provocation (objective)
3) before sufficient cooling time had elapsed, and (objective)
4) D had not actually cooled. (subjective)
Maher v. People, pg. 393 (D sees V enter woods with Ds wife, follows V to saloon,
Ds friend says they committed adultery, D shoots V, reversed and remanded)
Subjective standards are based on facts particular to D, objective standards are based
on reasonableness.
For provocation to be adequate, it must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the moment from passion rather
than reason. (A reasonable man never kills).
Legally Adequate Provocation: Majority View
Provocation should be limited to a set of traditional circumstances (the box):
1) Extreme assault or battery upon D
2) Mutual combat
3) Ds illegal arrest
4) Injury or serious abuse of Ds close relative
5) Sudden discovery of spouses adultery
Girouard v. State, pg. 391 (D stabs verbally abusive wife, guilty of second
Words are never enough social necessity because domestic disputes can
easily escalate and we dont want people who kill their spouse to get off easy.
We want to be able to make normative judgments about what juries should be
allowed to find is provocation we dont want to descend into blaming the
victim and have the jury look at whether the victim was a bad person rather
than whether there was provocation.
Girouard is more like a justification approach.
Legally Adequate Provocation: Minority View
Provocation is anything the natural tendency of which would be to produce
the state of mind of passion rather than reason in ordinary men.

Maher v. People, pg. 393 (D sees V enter woods with Ds wife, follows V to
saloon, Ds friend says they committed adultery, D shoots V, reversed and
Words CAN constitute provocation better to let the question of whether the
provocation was reasonable go to the jury because it is a question of fact, and
the jury is in a better position to decide whats reasonable for an ordinary
Maher v. People, pg. 394
Maher is more like an excuse approach.
There are many things that are provoking that we might not anticipate, so we
should put it to the jury and let them decide whats reasonable, not restrict it to
the box.
Times and cultures change, so what might have been reasonable for the box a
long time ago might not be valid now, and vice versa.
Maher dissent: the provocation itself must be given in Ds presence policy
reasons of protecting innocents (unless you actually see it, its hard to be sure
it happened because someone could be lying).

Cooling Time
Too long of a lapse of time between the provocation and the act of killing will
render the provocation inadequate. Pg. 399
Even if D hadnt cooled, but a reasonable person would have cooled, theres
no provocation objective standard.
Evidence of a prior argument or continuing dispute is insufficient to warrant a
voluntary manslaughter instruction in the absence of some sort of instant
U.S. v. Bordeaux, pg. 399 (D told that V White Bear had raped his mother 20
years earlier. D killed V later that day, guilty of second degree)
Something triggers the passion that would have been released before
cooling time.
Doesnt have to be legally adequate provocation in itself.
Has to be conduct on the part of the victim.
Ds heat of passion resulted from a long-smoldering prior course of
provocative conduct by the victim, the passage of time serving to
aggravate rather than cool Ds agitation.
People v. Berry, pg. 400 (provoked D waited for V in her apartment
for 20 hours before killing her, entitled to manslaughter instruction)
No Rekindling:
The legally sufficient provoking event had occurred two weeks before
the killing, and the interval constituted adequate cooling time.
State v. Gounagias, pg. 399 (V had raped D and bragged to others, the
others taunted D and he finally killed V, guilty of second degree)
Prior suspicions of infidelity provide adequate cooling time.

Commonwealth v. LeClair, pg. 400 (D suspected wife of infidelity for

several weeks, and upon suddenly confirming suspicions, strangled
her, guilty of second degree)
Justification or Excuse?
Partial justification
Closely related to the moral notion that the punishment of wrongdoers
is justifiable an individual is to some extent morally justified in
making a punitive return against someone who intentionally causes
him serious offense. The complicity of the victim should not be
A.J. Ashworth, pg. 396
Morally questionable to suggest that there is less societal harm in Vs
death merely because he acted immorally. His immoral conduct did
not jeopardize Ds life or anyone elses, and he deserves societys
Joshua Dressler, pg. 397
Partial excuse
Concession to the frailty of human nature.
Maher majority, pg. 393
A reasonable person in the passion of the moment loses self-control
and acts on impulse without reflection. Focuses on the degree of
passion sufficient to reduce Ds ability to control his actions.
U.S. v. Roston, pg. 396, Boochever, J.
The greater the provocation, the more ground there is for attributing
the intensity of Ds passions and lack of self-control to the
extraordinary character of the situation rather than an extraordinary
deficiency in his own character. Provocation must be estimated by the
probability that the circumstances would affect most men in like
Jerome Michael and Herbert Wechsler, pg. 396
Reasonable people dont kill no matter how much theyre provoked,
and even enraged people generally retain the capacity to control
homicidal or any other kind of aggressive or antisocial desires.
Stephen J. Morse, pg. 397
Third Party Victims
If partial justification, shouldnt apply to D when he kills a third party victim
because they havent done anything wrong.
If partial excuse, should apply because passion stems from human frailty.
If D believes he is hurting his provoker, he can get a provocation instruction,
even if (in at least some jurisdictions) his honest belief is unreasonable.
State v. Mauricio, pg. 400 (Bouncer forcefully ejects D, D waits for bouncer
outside, mistakes another patron for bouncer and shoots him, reversed and

Rex v. Scriva, pg. 401 (Father sees driver injure daughter, goes after driver
with a knife and stabs bystander who tries to restrain him, guilty of second
Eliciting Provocation
If D elicits the provocation, he may still be able to get the defense.
Regina v. Johnson, pg. 461 (D threatened and insulted V, V pinned and
punched D, D stabbed V)
The Reasonable Person in Provocation
See cultural defense
Only applies for Maher jurisdiction
Objective Standard not particularized at all, may ignore the whole reason
for the provocation.
Bedder v. D.P.P (Prostitute taunts man about his impotence and he kills her
the reasonable person is a person who is not impotent)
Subjective Standard may make it too easy to find manslaughter.
D.P.P v. Camplin, pg. 408 (Abuser taunts boy about abuse, and boy kills him
jury should not apply characteristics that go to the capacity for self-control,
but should apply characteristics that go to the gravity of the provocation.
Perhaps a subsequent category of what you can actually control?)
Regina v. Morhall, pg. 409 (Reasonable glue-sniffer an addict with ordinary
powers of self-control, reversed)
Regina v. Smith, pg. 409 (Clinically depressed alcoholic killed friend who
stole from him jury should no longer be instructed about the reasonable
man with an array of unreasonable eligible characteristics, instead they
should look at the totality of the circumstances and whether D had a
characteristic that affected the degree of control society could have
reasonably have expected of him that it would be unjust not to take into
Sexual Misrepresentation
Not in the box, but D could argue its like rape.
Could get to the jury on a Maher standard.
D would have to prove other elements of provocation, but it would be legally
adequate if:
1) D engaged in a sexual act, while in a reasonably deceived state of mind
2) concerning a fact reasonably material to consent, and
3) which would be likely to cause a reasonable person severe mental or
emotional crisis upon discovery
Reasonably deceived is subjective and objective because D has to actually
be deceived and a reasonable person under the circumstances would have
been deceived.
The Araujo Case (V was man dressed as woman, had sex with Ds, Ds beat
and killed V when his sex was discovered)

Policy Arguments
Provocation defense is bad for women because men are more likely to be
provoked, kill them, and get the defense, especially with infidelity.
Juries cannot be expected to enforce a standard of reasonableness which
adequately protects a womans life because they view the world through the
lens of cultural construction that accepts masculine violence.
Emily L. Miller, pg. 397
Jury may blame the victim and instead of deciding whether the provocation
was legally adequate, decide whether V was a bad person who deserved to
Anger cannot ethically afford any ground for mitigating deliberately violent
action, but a killing in anger produced by serious wrongdoing is less wicked
and therefore deserving of less punishment than a killing out of greed, lust,
jealousy, etc.
Law Commission (U.K.), pg. 398
Extreme Emotional Disturbance The MPC Approach
For an Extreme Emotional Disturbance defense, you have to consider:
1) Whether the defendant was actually acting under an extreme emotional
disturbance, and (subjective)
2) Whether there was a reasonable explanation or excuse for the disturbance.
Dont have to prove the four prongs
Dont need a triggering event
State v. Elliot, pg. 405 (D had overwhelming fear of brother for years, killed brother
one day for no apparent reason EED instruction required)
Reasonable person is more subjectivized determined from the viewpoint of a person
in the actors situation under the circumstances as he perceives them to be, however
inaccurate that perception may be.
People v. Casassa, pg. 401 (D killed girl he dated after she told him she wasnt
falling in love with him. Spied on her, laid naked in her bed. Killed her when she
didnt accept a gift. Guilty because Ds emotional reaction was so peculiar to him
that it was unworthy of mitigation, a proxy for rejecting features that go to the
capacity for self-control. Ends up like Smith, where the question is whether Ds
actions can be understood in terms that will arouse sympathy in the ordinary citizen)
Unintended Killings
Involuntary Manslaughter
Common Law Majority
Have to prove Gross Negligence substantial and unjustified risk, gross
deviation from the standard of care.
Factors for measuring risk:
1) Magnitude of the risk
a) How likely is the harm?
b) How serious would the harm be if it came about?
2) Actors purpose (reasons for conduct)

a) Justified?
b) Unjustified?
Have to prove more than civil negligence (failure of due care)
Have to show wanton and reckless conduct, but this can be found by an
omission. Not reckless in the regular sense, just indifference or disregard to
probable consequences, can be found even when D didnt actually realize the
risk, but a reasonable person would have.
Commonwealth v. Welansky, pg. 411, (D maintained nightclub with unusable
emergency exits, fire broke out and people were killed. Guilty of
manslaughter. Courts language sounds like recklessness, but they actually
apply criminal negligence confusion vindicates the MPC)
State v. Williams, pg. 418 (Native American couple failed to get medical care
for ill baby standard was ordinary negligence, but would still have been
guilty of gross negligence because realized baby was sick in time to get
treatment, had used resources in the past, only gave the baby aspirin, guilty of
How far do we particularize the reasonable person the reasonable
Native American?
Cant deter someone who doesnt realize the risk.
Someone who didnt realize they were doing a bad thing doesnt
deserve to be punished.
Establishes a general standard of conduct for the community that we
dont want people to fall below. Supplies people with a motive to take
care before acting, which may promote awareness.
3 Approaches
Pillsbury, pg. 423 culpability should depend on the actors reasons
for perceptive failure, not on the failure itself. Should ask whether D
was showing a disregard for worth of life. (Reckless drivers father
versus teenager)
H.L.A. Hart, pg. 423 Problem because some people cant comply
with the standard. Ask two questions:
1) Did the accused fail to take those precautions which any
reasonable man with normal capacities would in the circumstances
have taken?
2) Could the accused, given his mental and physical capacities, have
taken those precautions?
MPC, pg. 422 D must exercise the care that a reasonable person
would exercise in Ds situation. Situation is ambiguous things D
is experiencing at the moment can be taken into consideration (heart
attack) but not things you can prepare for (heredity).

Common Law Minority

Have to prove a gross deviation plus conscious awareness of the risk

See above for proving gross deviation.

MPC Manslaughter
Either intentional killing with EED or unintentional killing with gross deviation and
Like common law minority.
MPC Negligent Homicide
A killing done with criminal negligence gross deviation from the standard of care.
Dont have to have awareness of the risk.
Like common law majority.
Depraved Heart Murder
An unintentional killing involving gross recklessness.
Second degree murder, arose from incredibly risky conduct.
Line between involuntary manslaughter and depraved heart murder is not clear.
Need a high risk of death or serious harm (extreme indifference / callous disregard for
the value of human life) and conscious awareness must be a greater risk than a gross
Available for omission liability.
Conscious Awareness
Courts say that conscious awareness is required, but this may not be true in
practice because juries end up thinking that any reasonable person would have
had to know of the risk.
Commonwealth v. Malone, pg. 426 (D played Russian Roulette with boy,
thought he knew where the bullet was, but on the third pull it discharged
conviction upheld even though D didnt think boy would be hurt)
When recklessness establishes an element of the offense, if the actor, due to
self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial.
U.S. v. Fleming, pg. 431 (Drunk drove like a maniac, lost control, and caused
death of V)
Pears v. State, pg. 432 (D was warned that he was too drunk to drive, but
didnt listen and went through red lights and stop signs)
People v. Watson, pg. 433 (D drove to a bar where he drank, knowing he
would have to drive it later, and sped through a green light not really a high
risk of death, holds a drunk person to a different standard and normatively
criticizes drunk driving. Policy: collapses distinction between murder and
Examples of DHM
Sernatowski shooting in a room D knows is occupied by several people.

Joy starting a fire at an occupied home

Wiley shooting into the moving car of a passing train
Brinkley shooting twice while in a small room with victim
Johnson shaking an infant so badly that it died

Grievous Bodily Harm

Doesnt have to be high risk of death if D intends to inflict grievous bodily
Some jurisdictions make grievous bodily harm a jury question.
Other jurisdictions say its the intentional creation of risk of any injury that
greatly interferes with health and comfort.
Felony Murder
Just have to show the actus reus, mens rea from the felony is bootstrapped to the
Any act known to be dangerous to life and likely in itself to cause death, done for the
purpose of committing a felony which causes death, should be murder (not just any
act done with intent to commit a felony).
Regina v. Serne, pg. 435 (D set house on fire to collect insurance adds mens rea
like element to felony murder)
Was D guilty of the underlying predicate felony?
Was the felony a listed felony?
Felony murder abolished in Michigan, but acts that are already murder will be raised
to first degree murder when done in the commission of certain listed felonies.
People v. Aaron, pg. 445
D liable for felony murder if he kills someone while fleeing.
People v. Gillis, pg. 458 (D committed burglary and drove off, 10 minutes later a cop
tried to stop him, D sped off and hit another car)
Misdemeanor Manslaughter
An underlying misdemeanor resulting in death can ground a conviction for
Limitation: the ordinance violated has to be a safety ordinance.
State v. Powell (D kept Rottweilers that got out and attacked a jogger)
Can also get manslaughter by using a felony that cant support a felony
murder charge.
Cause Limitations
Ds actions must be a but-for cause of the death.
People v. Stamp, pg. 438 (V had heart attack when D burglarized his premises
conviction upheld even though death not foreseeable, D is strictly liable for
all killings committed by him or cofelons. Special eggshell skull rule of
causation, D takes victim as he finds him. Different rule from Serne)

Ds actions must be the proximate cause of the death connect the fact of the
felony to the cause of the harm, the harm was the natural or probable
consequence of the felony.
King v. Commonwealth, pg. 439 (D and copilot were transporting drugs in a
plane, crashed into a mountain, and copilot died no proximate cause
because the crash was not made more likely by them carrying drugs, risk has
to arise from the commission of the felony itself)

Inherently Dangerous Limitation

Listed felonies are assumed to be inherently dangerous and get D 1st degree
Example of listed felonies in California arson, rape, robbery, burglary,
mayhem, kidnapping, train wrecking, or sex acts with a minor all others get
2nd degree murder.
Abstract Approach
To determine if felony is inherently dangerous, look at the statute
itself, not the way the felony was committed.
If the felony could be committed in any way thats not inherently
dangerous, you cant get felony murder.
Policy: If you didnt look in the abstract, every time a death resulted,
we would see inherent danger in the felony (would widen felony
People v. Phillips, pg. 447 (Chiropractor advised parents not to get
surgery for daughters eye cancer, and instead get treatment from him.
Felony murder based on grand theft court says no because you can
commit grand theft in a lot of ways that arent dangerous to life)
If the statute has a primary element with essentially a single
form of conduct that has the same amount of culpability, you
cant sever it.
People v. Henderson, pg. 448 (D committed false imprisonment
using a gun, but statute says it could be committed by violence,
menace, fraud, or deceit. False imprisonment by fraud isnt
inherently dangerous, so cant get felony murder. Cant sever
because the legislature hasnt shown particular concern for
violent as opposed to nonviolent forms of false imprisonment
by creating separate statutes)
If there is no primary element, look at the intent of the
legislature, and if the crimes were just put together for
administrative convenience and there are lots of forms of
conduct with different levels of culpability, then you can sever,
but if they have the same level of culpability, then you cant.
People v. Patterson (V died of overdose when D furnished
cocaine statute proscribed administering, furnishing, selling

many types of drugs, court says you have to decide whether

furnished cocaine specifically is inherently dangerous)
As Committed Approach
Trier of fact determines whether the felony was inherently dangerous
in the manner and circumstances in which it was committed.
People v. Stewart, pg. 448 (D mother went on crack binge and didnt
feed baby, who died. Felony was permitting child to be a habitual
sufferer, conviction upheld)
Policy: assuming we want to keep the doctrine of felony murder, the
abstract approach doesnt make sense because lots of felonies that can
be committed in ways that are not inherently dangerous can also be
committed in ways that are very dangerous, so you should look at how
it was actually done.
Level of Dangerousness
High probability of death (for both jurisdictions) collapses
distinction with DHM
People v. Patterson majority, Hines v. State dissent
Substantial risk of death (courts have later equated with high
probability of death)
People v. Patterson dissent
Foreseeable risk of death (only for as committed jurisdictions)
encourages people to be cautious, catches negligent people if standard
is reasonably foreseeable
Hines v. State majority, pg. 450 (D thought he was shooting turkey but
actually shot friend, was a convicted felon not allowed to possess a
gun, conviction upheld)
In Furtherance of the Felony/Accomplice Liability Limitation
One person is liable for the crime of another when he or she intentionally
encourages the other person to commit the crime or aids the other person in
committing it. Pg. 457
The law treats each participant as the agent of the other when their actions
further the common objective. Pg. 457
Some jurisdictions dont allow liability for the death of a cofelon doesnt
excite the same moral outrage.
Commonwealth v. Redline, pg. 465 (cant hold D liable for death of cofelon
because it was justifiable homicide)
State v. Williams, pg. 465 (felony murder statute is intended to protect the
innocent, so would be incongruous to put the perpetrators beneath its mantle)
U.S. v. Martinez, pg. 465 (two cofelons made pipe bombs, a bomb exploded
and killed one of them, D liable lives of criminals are not completely
NY Affirmative Defense to accomplice liability: pg. 379
1) D did not commit homicidal act,

2) D was not armed,

3) D had no reasonable grounds to believe that any other person was armed
with a weapon, and
4) D had no reasonable ground to believe that any other participant intended
to engage in conduct likely to result in death or serious physical injury.
Agency Jurisdictions (majority)
Felony murder only applies when a killing is committed by D or Ds
cofelon in furtherance of the felony or a joint felonious plan. (Killer
has to be an agent of the defendant)
D is not liable for a cofelons death if someone else (V, cop) kills him.
State v. Canola, pg. 460 (D and cofelons robbing store, V shoots
cofelon no felony murder because V not acting in furtherance of a
common purpose with D)
D is not liable of cofelon kills someone on a frolic of his own. far
exceeds the scope of the intended felony.
U.S. v. Heinlein, pg. 459 (Ds cofelon killed rape victim after she
slapped him no liability for D because not in furtherance of the
common plan)
D is liable if cofelon kills another cofelon for messing up the plan.
People v. Cabaltero, pg. 459 (Robbery lookout panicked and started
shooting, cofelon leader killed him)
Proximate Cause Jurisdictions (minority)
Felony murder applies when the death is a reasonably foreseeable
result of the felony.
People v. Hernandez, pg 463
Anyone can pull the trigger.
State v. Oimen, pg. 463 (Robbery victim shot cofelons, surviving D
convicted of felony murder)
Cofelon might still be liable for a frolic if it was foreseeable.
Implied Malice/Vicarious Liability (DHM)
Only applies in agency jurisdictions, gives liability for deaths not
directly caused by D or cofelons.
Analyze like DHM to see if any of the cofelons acted with callous
Other cofelons (getaway driver) can be held liable vicariously when
there is a joint felonious plan and first cofelon created sufficiently high
risk of death with the requisite conscious disregard (committed DHM).
Taylor v. Superior Court (D waiting in car, cofelons commit robbery
against V1, V2 shoots one of the cofelons)
No vicarious liability for other cofelons (like getaway driver) if the
cofelon who died was the only one to go in to commit the crime
because the dead cofelon cant be liable for his own death, so D cant
be vicariously liable.

MPC Felony Murder

Does not have traditional felony murder.
For the purpose of establishing murder by an act committed recklessly under
circumstances manifesting extreme indifference to the value of human life
(DHM) the fact that the actor is engaged in certain listed felonies (robbery,
rape, or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnapping, or felonious escape) creates a rebuttable presumption that the
required indifference and recklessness existed. MPC 210.2(1)(b) pg. 442
Taking risky behavior should not be condoned no social benefit to
committing a felony.
Deterrence people will commit less felonies because they know they can be
liable if something goes wrong.
Deterrence people who commit felonies will be more cautious and less
likely to use violence.
Retribution general blameworthiness, you did a bad thing and should be
responsible for all the consequences.
Kenneth Simons, pg. 439 knowingly creating a risk of death in the context of
another criminal act is more culpable behavior than knowingly creating a risk
of death in the context of an innocent or less culpable act. (Does not
necessarily support raising accidental or negligent killing to murder).
George P. Fletcher, pg. 441 the idea that a wrongdoer must run the risk that
things will turn out worse than he expects violates a basic principle of just
punishment because punishment must be proportional to wrongdoing.
The felon can be liable without any intent to kill.
Lots of people commit the same felony and no one dies this felon is just
unlucky and shouldnt be punished more than the others.
Someone who only intends to steal something can get the same punishment as
someone who intends to kill.
They can still be convicted of a homicide if they had the mens rea, the
prosecutor just has to prove it.
The predicate felony has its own punishment.
James Tomkovicz, pg. 441 deterrence: the addition of a small risk of a
murder sanction for an unlikely event is probably not a major influence on
prospective felons behavior.

Mistake of Fact
A person has the actus reus for a crime, but was mistaken about some fact that, had he
been correct, would have made his conduct not that crime.
Subset of mens rea.

Comes up when part of the statute is blank as to mens rea and prosecution wants to
read it as strict liability.
Failure of proof defense
Specific Intent Crimes
D not guilty if the mistake of fact negatives the specific intent element.
(Burglary makes it a crime to enter and remain in a dwelling with the intent to
commit a felony prosecution must prove trespass and also specific intent if
mistake negates intent to commit a felony, D is not guilty.)
Mistake does not need to be reasonable, just honest.
General Intent Crimes
A mistake of fact must be honest and reasonable to create a defense.
Even if its both honest and reasonable, in the common law D doesnt always
have a defense.
Bootstrapping Mens Rea
Bramwell approach if D commits an underlying moral wrong, hes
running the risk that it turns out to be illegal, and you can bootstrap the
mens rea from that wrong. View lingers in crimes of moral turpitude
(like statutory rape).
Regina v. Prince, pg. 234 (D convicted of taking an unmarried girl
under 16 out of the possession and against the will of her father, but
honestly and reasonably believed that she was 18 Bramwell says that
since its wrong to take any unmarried girl out of the possession and
against the will of her father, D is guilty)
White v. State (D leaves pregnant wife not knowing shes pregnant,
Brett approach you can only bootstrap the mens rea to the greater
crime if D would have been guilty of a lesser crime if the facts had
been as he supposed, cant bootstrap if he would not have been guilty
of any crime. Only applies today in the common law, and only when
its a question of grading (1st degree burglary instead of 2nd degree).
Regina v. Prince dissent, pg. 234
State v. Benniefield, pg. 239 (Conviction upheld for more serious
school-zone offense for D who possessed drugs within 300 feet of a
school, but didnt know or should have known that he was near a
U.S. v. Barbosa, pg. 239 (D swallowed crack pellets but thought they
was heroin, conviction upheld for more serious cocaine possession
MPC approach
1) Ignorance or mistake is a defense if it:
a) Negatives the mens rea required for a material element of the

b) The law provides that the state of mind established by the mistake
constitutes a defense

2) If D would have been guilty of a lesser offense had the facts been
as D supposed, D is guilty of that lesser offense.
MPC 2.04, pg. 1083
1) If D is guilty of a moral wrong, there is general blameworthiness.
2) George Fletcher, pg. 236 moral duties should not be identified
with criminal duties.
3) If the legislature had wanted to criminalize that conduct, they
would have.
4) U.S. v. Cordoba-Hincapie Mens rea for one crime should not
justify conviction for another because it violates the requirement
that punishment be calibrated to degree of culpability.
5) MPC Commentary, pg. 239 the measure of a defendants liability
should be his culpability, not the actual consequences of his
6) Bramwell view gives judges too much discretion to impose their
own ideas of morality.

Statutory Rape
MPC Jurisdiction - MPC 213.1, pg. 1117
1) Strict liability with a child under 10
2) With a child over 10, mistake has to be honest and reasonable
Common Law 1 strict liability as to age
People v. Olsen, pg. 239 (D convicted of lewd or lascivious conduct
with child under 14, but honestly and reasonably thought she was over
16, guilty) public policy of protecting children, legislature provided
for possibility of probation for people with this belief
Garnett v. State, pg. 245 (Retarded 20-year-old had sex with 13-yearold, but honestly believed she was 16, guilty) not based on Bramwell
view, plain language of statute doesnt allow mistake defense. But
people over the age of consent are entitled to have sex, and this regime
discourages people from having sex with them.
Common Law 2 Honest and reasonable mistake as to age is accepted
People v. Olsen dissent, pg. 241
Common Law 3 Mistake just has to be honest, not reasonable
B (A Minor) v. Director of Public Prosecutions, pg. 243 (B convicted
of inciting a child under 14 to commit act of gross indecency, honestly
believed she was over 14, conviction overturned) the reasonableness
or unreasonableness of Ds belief is material only to the question of
whether the belief was held by D at all. Bramwell approach would not
be upheld in a modern court.
Garnett v. State dissent, pg. 246

Strict Liability Crimes

At least one element of the crime requires no mens rea.
Still have to prove actus reus.
Crimes where there was no underlying wrong.
Generally only public welfare offenses are strict liability crimes factors of
public welfare offenses:
1) Not a traditional common law crime
2) Relatively new crime (regulatory offense)
3) Preventing harms arising from industrialization
4) Minimal penalties
5) Minimal stigma
6) D in best position to prevent harm
Morissette v. U.S., pg. 250 (D took rusting bomb casings that belonged to
government and sold them, conviction overturned for knowingly converting
government property because D honestly believed they were abandoned)
U.S. v. Balint, pg. 248 (D sold opium without an order form required by
statute, conviction upheld even though D didnt know it was opium protects
consumer, easier for D to find out what hes selling than it is for the buyer)
U.S. v. Dotterweich, pg. 249 (D sold accidentally mislabeled pharmaceuticals,
conviction upheld policy problem of discouraging the most careful people
from getting into the business because they would worry about liability, can
get plenty of deterrence with a negligence standard, did not apply Bramwell)
Staples v. U.S., pg. 254 (D had unregistered rifle that could fire automatically,
but he didnt know it could do this, conviction overturned penalty was not
low, court holds that there is no underlying wrong (Bramwell), different from
possessing grenades because theyre inherently dangerous)
H.L.A. Hart would make more sense to relax mens rea for traditional
common law crimes because youre already on notice that youre doing
something wrong, whereas here you have no idea.
MPC strict liability crimes are disfavored, only allows for violations
where imprisonment is never permitted. Crime does and should mean
condemnation, and no court should have to pass that judgment unless Ds
act was culpable.
Stephen Schulhofer Strict liability crimes may exclude a few accidentprone people from the activity but fail to select out the people the law
should be most concerned about because the ones who are most confident
in their abilities are likely to be careless. If the penalties are harsh, people
who are careful are likely to take the sensible precaution of not engaging
in the activity at all.
Mistake of Law
Direct mistake of law (I didnt know that was against the law) is typically no

People v. Marrero, pg. 267 (D arrested for possessing an unlicensed pistol, but
thought he was exempted as a peace officer, conviction upheld because court uses
MPC ideas even though NY didnt adopt their language)
1) Would encourage ignorance
2) If it was allowed, would punish people who know the law because people who
dont know would have an excuse
3) Dru Stevenson, pg. 272 Presumes that everyone knows the law, purpose is to
create limited uncertainty about the law because uncertainty can deter harmful
behavior by promoting caution.
4) Dan Kahan, pg. 272 courts should make context-specific judgments about
which actors have characters good enough to be excused for their mistakes of law
to distinguish them from loopholers.
5) Could just allow mistakes of law that are reasonable.
The statute requires knowledge that the statute exists for there to be a
conviction negatives the mens rea required to prove a material element
(failure of proof). Willfully and knowingly have different interpretations:
1) Awareness of the specific statute at issue
Cheek v. U.S., pg. 275 (D convicted of willfully failing to file a tax return,
but honestly believed that he owed no taxes and that taxes were
unconstitutional court held against constitutionality claims, but that he
had to violate a known legal duty so conviction overturned)
Liparota v. U.S., pg. 278 (D acquired food stamps in a questionable way,
conviction overturned because D would have had to know the way she
acquired them was against the law)
2) Just a more general awareness that the acts committed are unlawful
Bryan v. U.S., pg. 278 (D convicted of willfully dealing in firearms without
a federal license, conviction upheld because D had to know his conduct
was unlawful, but didnt have to know of the statute)
3) Merely awareness of what acts were committed, pg. 277
U.S. v. International Minerals & Chemical Corp., pg. 278 (D violated a
regulation regarding the transportation of corrosive liquids, conviction
upheld because it was sufficient to prove that actions D knowingly committed
violated the regulations)
U.S. v. Ansaldi, pg. 279 (D sold GBL but didnt know it was on the controlled
substances list, conviction upheld because intent to violate the law is not part
of drug statutes)
U.S. v. Overholt, pg. 279 (D unlawfully disposed of contaminated water,
conviction upheld even though he didnt know it was unlawful)
Statutory exceptions:
1) MPC 2.04(3) D acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous.
2) New Jersey Statute D pursues all means available to ascertain the
meaning and application of the offense and honestly and in good faith

concludes his conduct is not an offense in circumstances in which a lawabiding and prudent person would so conclude.
Collateral mistake of law some other law is a material element of the
offense, and the mistake of law is about that element (like mistake of fact).
The mistake of law D made was about some other law, not the one he was
charged with. Has to be honest, maybe reasonable, pg. 274. MPC 2.04(1)(a)
strict reading of MPC doesnt require reasonableness?
Regina v. Smith, pg. 273 (D damaged wall panels and floorboards that he had
installed with landlords permission to retrieve wiring before moving out,
conviction overturned mistake was thinking that the floorboards belonged to
him, would have had to know law of fixtures)
State v. Woods, pg. 274 (Man got a divorce in Nevada and married D. Back
in Vermont, D charged with being in bed with another womans husband
knew it was illegal, but didnt know the divorce wasnt valid under Vermont
law, conviction upheld)

MPC MPC 213.1, pg. 1117
Backwards standard no spousal rape.
Threat would prevent resistance by a woman of ordinary resolution gross sexual
Actus Reus
When is the act rape?
Traditional Elements:
1) Vaginal intercourse
2) By force or threat of force
a) V resisted and resistance was overcome by force, or
b) V failed to resist out of fear
State v. Rusk, pg. 302 (V drove D home, he took her keys and made her go to
his apartment and have sex, lightly choked her, she cried and asked to leave)
3) Against the will of the victim implies Vs resistance
4) Without the victims consent
a) V resisted, or
b) V failed to resist out of fear
Force: Standards for Resistance
To the utmost traditional common law standard, not required by any
jurisdiction anymore, except Louisiana, pg. 308
Enough to show that the sexual acts are abhorrent and repugnant to her natural
sense of pride.
State v. Rusk dissent, pg. 306
Earnest resistance, pg. 308
Reasonable resistance jury question, measured by totality of the
circumstances, Hull v. State, pg. 308

No resistance not formally required, but highly probative as to consent, pg.

People v. Barnes, pg. 308 (Policy: resistance requirement was grounded in
distrust of womens testimony regarding sexual assault)
Michelle J. Anderson, pg. 309 (Policy: physical resistance decreases a
womans chance of being raped and does not increase chance of injury,
associated with less self-blame [but this doesnt mean it should be required])

Force: Failed to Resist out of Fear

Must be fear of death or grievous bodily harm.
Fear must be honest and objectively reasonable (from perspective of a
reasonable person in Ds situation) unless D knew of the unreasonable fear
and used it (snakes hypo). People v. Iniguez, footnote pg. 311
People v. Warren, pg. 310 (V biking along isolated path, talked to D, when
she tried to leave he stopped her, lifted her up, carried her into the woods and
had sex with her court reversed conviction, V must demonstrate that it was
against her will)
Fear cannot just be a general fear of D, has to be fear from acts right before
State v. Alston, pg. 311 (D abused V when they lived together, she moved out,
and a month later saw him at school, he said he was going to fix her face and
had the right to have sex with her one more time)
Susan Estrich, pg. 311 (Policy: requiring force and resistance requires that
women act like real men, not sissies guarantees men freedom to
intimidate women as long as they dont fight with them)
Vivian Berger, pg. 311 (Policy: must be careful not to overprotect women
because it cheapens the rights to self-determination, sexual autonomy, and
self- and societal respect of women)
Policy: rape is a serious crime and we dont want to convict someone whos
not culpable.
Force: New Standard
The only force required is the force that accomplishes penetration, eliminates
force requirement and switches presumption to nonconsent.
State in the Interest of M.T.S., pg. 318 (V and D engaged in consensual heavy
petting, and then intercourse to which V did not consent, but D did not use
any extra force)
David Bryden, pg. 322 (Policy: if all sex is forcible, why did the statute
require force in addition to penetration?)
Four options
1) Verbal resistance + other behavior that makes unwillingness clear =
nonconsent (totality of the circumstances approach)
State v. Gangahar, pg. 332 (D employer sexually assaulted V undercover

2) Verbal resistance alone = nonconsent

Vivian Berger, pg. 333 no should suffice, but jury has to believe that V
did say no because women should not be overprotected.
3) Anything less than affirmative permission by words or conduct =
State in the Interest of M.T.S., pg. 321
Stephen Schulhofer, pg. 333 hospitalized athlete, nonconsent is anything
that is not an affirmative, crystallized expression of willingness.
4) Anything less than express verbal permission = nonconsent
Michelle Anderson, pg. 334 Allowing conduct to suffice for showing
consent does not go far enough because men misinterpret body language.
Test for nonconsent the same as force (resisted or failed to resist out of fear)
If there was force, then nonconsent is implied.
Defective Consent
Specific age of consent below which sex is illegal, pg. 335
Mental retardation difficult to define a standard that protects
vulnerable victims without making it impossible for them to ever have
a fulfilling sexual relationship, pg. 335
Drugs and alcohol always liability if V is completely unconscious, if
not, most states only find liability if D himself drugged V, pg. 335
Pressure and threats, pg. 336
Authority and trust most states criminalize a psychotherapist having
sex with a patient, pg. 336

Consent is procured, but by artifice, deception, flattery, fraud, or promise.
Seduction is a crime in some jurisdictions.
People v. Evans, pg. 337 (D seduced unworldly young woman court held not
rape if words used in an attempt to seduce are misinterpreted as a threat)
Mens Rea
Was there a mistake of fact on Ds part as to whether V consented?
MPC honest belief that V consented = no rape (recklessness standard) (failure of
proof approach)
Regina v. Morgan, pg. 349 (Married man drinking at pub with friends, tells them that
they should go home and have sex with his wife, and that shell fight but actually likes
it, conviction overturned because an honest belief negatives the intention to have nonconsensual intercourse)
Reynolds v. State, pg. 349 (This jurisdiction had no resistance requirement, and since
statute didnt mention a specific mental state to govern consent, recklessness is
Common law mistake must be both honest and reasonable (negligence standard).
Commonwealth v. Sherry, pg. 342 (Ds take V nurse to house and have sex with her,
thought they had consent conviction upheld because cant recognize mistake of fact
without considering its reasonableness)

Strict liability no mistake of fact counts as a failure of proof.

Commonwealth v. Fischer, pg. 344 (D college student has rough sex with V, but
thought that she consented because they had done the same thing earlier conviction
upheld because no exception for reasonable mistake of fact for consent in this
jurisdiction, strict liability after V says no)
Commonwealth v. Lopez, pg. 348 (No reasonable mistake of fact defense allowed
because prosecution must show force, so subjective culpability is inherent)
Commonwealth v. Simcock, pg. 348
Robin D. Weiner, pg. 352 Man tries to seduce, woman indicates lack of
consent (and reasonable women would agree), but man still thinks she is
willing (and reasonable men would agree) and continues, woman submits
because she thinks the man is indicating his intent to have sex with her despite
her lack of consent and so she submits out of fear gender gap in
Douglas Husak, pg. 353 there is little empirical evidence that no actually
means no because of social conventions.
Catherine McKinnon, pg. 353 rape but no rapist, the rapist thinks the woman
loved it, but the woman feels violated no objective state of affairs exists, and
when reality is split the law tends to conclude that the rape did not happen
one-sided approach (male-sided).

Justification and Excuse

Justification I did it and am responsible for it but you should not find me guilty because it
was the right thing to do.
Excuse I did it and it was a bad thing to do, but you should not find me guilty because for
some reason I was not responsible. 3 types:
1) Involuntary acts not consciously willed by actor (reflex)
2) Cognitive deficiency inability to know acts were wrong or illegal
3) Volitional deficiency actor is externally threatened
Eugene Milhizer, pg. 831
Elements (Common Law)
1) Honestly and
2) reasonably believe
3) that the force was necessary to defend against Vs
4) imminent use of
5) unlawful force, and
6) ones own force isnt excessive.
Cant be invoked after the fact had to honestly and reasonably believe at the
A person may not use deadly force in self-defense if he is the aggressor at the time of
the conflict (Vs force wasnt unlawful so one of the elements is missing) but the

aggressor can become a nonagressor if he effectively withdraws from the initial

A nondeadly aggressor can meet deadly force with deadly force and get self-defense.
Imminence requirement defined as immediate danger, such as must be instantly

met, such as cannot be guarded against by calling for the assistance of others
or the protection of the law.
State v. Norman, pg. 763 (D battered wife killed husband while sleeping
conviction upheld D could have pursued other avenues of help. Policy:
court unwilling to say that theres a meaningful futility component to
imminence because theres still a chance V wouldnt hurt her, and there are
always other options, applying temporal definition of imminence)
Robinson v. State, pg. 769 (Court holds self-defense applicable when D kills
batterer in his sleep when torture appears interminable and escape
impossible, because the belief that only the death of the batterer can provide
relief may be reasonable in the mind of a person of ordinary firmness,
applying futility definition of imminence)
Reasonable belief requirement belief has to be objectively reasonable, not
just reasonable to D.
People v. Goetz, pg. 739 (D shot teens who asked him for five dollars on the
subway reasonable belief required because otherwise someone with
aberrational or bizarre thought patterns could claim self-defense and people
could create their own standards for permissible use of force)
People v. Romero, pg 748 (D tried to introduce cultural evidence to support
claim that he reasonably believed harm was imminent, ruled inadmissible)
Can particularize to the reasonable person in Ds situation. Situation includes:
1) Ds relevant knowledge about V
2) Physical attributes of all persons involved
3) Physical movements of V
4) Prior experiences of D that could provide a reasonable basis for a belief
that another persons intentions were to hurt him / circumstances of event.
People v. Goetz, pg. 742
Imperfect self-defense when D had honest but unreasonable belief that force
was necessary, most jurisdictions wont give any defense, but some give
imperfect self-defense, which mitigates it to voluntary manslaughter (or
involuntary in a few jurisdictions).
MPC elements 3.04, pg. 1089
1) Use of force is justifiable if D believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion
2) The use of deadly force is not justifiable unless D believes that such force
is necessary to protect himself against death, serious bodily harm,
kidnapping, or sexual intercourse compelled by force or threat.
3) If D is reckless or negligent in his belief that force was justifiable (belief
was honest but not reasonable) D can only be held liable for homicides
with the mens rea level of recklessness or negligence, respectively (like
negligent homicide). MPC 3.09, pg. 1094

Joseph Berger, pg. 743 Goetz widened the circumstances that justify
use of deadly force, jurors often nullify self-defense standards set by
law, had little faith in criminal justice system to protect us from threats
tolerates vigilante behavior.
Marvin Wolfgang, pg. 744 Perceptions about who is more likely to
commit a crime have statistical basis, higher for blacks.
Jody Armour, pg. 745 If we accept that racial discrimination violates
contemporary social morality, then an actors failure to overcome his
racism is blameworthy and thus unreasonable, independent of whether
or not it is typical.
R. Restak, pg. 746 There are no reasonable people under conditions
in which death or severe bodily harm are believed imminent people
are taken over by their limbic systems.
Richard Rosen, pg. 767 Norman court never answered the question
of whether it was necessary for D to kill her husband to avoid great
bodily harm or death.
Jeremy Bentham, pg. 832 excuses identify situations in which conduct is
nondeterrable, so punishment would be unnecessary evil. Only the
nondeterrable are excused, so withholding punishment offers no comfort to
the deterrable.
Sanford Kadish, pg. 832 Punishing all closes off any hope a deterrable
offender might harbor that he could convince the jury that he was among the
H.L.A. Hart, pg. 832 to blame a person is to express a moral criticism, and if
the persons action does not deserve criticism, blaming him is unjust.
Duress and Necessity
Duress can be thought of as a justification or excuse.
Necessity traditionally thought of as a justification. Elements:
1) D reasonably believes imminent harm will result unless D breaks the law
2) D did not cause the situation (traditionally force of nature or God)
3) The prevented harm would be greater than the harm from Ds act
(balancing test)
Duress elements: (traditional common law) (are all elements subject to
objective standard?)
1) A threat (do it or else) of
2) imminent
3) death or grievous bodily harm
4) that it is reasonable to fear will be carried out.
5) Not applicable to murder.
MPC Duress elements: 2.09, pg. 1087

1) Actor engaged in the conduct because he was coerced to do so by the use

of, or a threat to use, unlawful force against his person or the person of
another, which a person of reasonable firmness in his situation would
have been unable to resist.
2) This defense is unavailable if the actor recklessly placed himself in a
situation in which it was probable that he would be subjected to duress.
Also unavailable if actor was negligent if negligence suffices to establish
culpability for the offense charged. (Similar to common law pg. 849)
State v. Toscano, pg. 833 (D chiropractor filled out fraudulent insurance
claim because man threatened D and his wife commission of minor criminal
offense should be excusable even if coercer does not use or threaten force
likely to result in death or serious bodily harm)
Regina v. Sharp, pg. 849 (No defense when D joined a gang that he knew
might bring pressure on him to commit an offense)
Regina v. Shepherd, pg. 849 (Defense remains available if D had no reason to
suspect he would be forcibly preventing from withdrawing)
MPC gets rid of imminence and death or GBH requirements.
Duress does not protect property, but necessity sometimes can.
Duress is different from necessity because you dont have to show that Ds
crime is the lesser of evils.
With duress, youre still balancing because the level of evil of the crime
youre forced to commit because the person of ordinary firmness would resist
more based on how bad the thing theyre being forced to do is.
Some jurisdictions allow duress as a defense to felony murder because D is
not guilty of the underlying felony.
Imminence Requirement
Majority view Ds belief in the futility of escape is not enough.
U.S. v. Fleming, pg. 843 (D prisoner of war court-martialed for
collaborating with the enemy, they threatened to make him walk to a
camp far away in winter or live in a filthy cave conviction upheld
because danger of death was remote, not clear the threats would be
carried out)
Minority view Ds belief in futility of escape is enough to show
U.S. v. Contento-Pachon, pg. 844 (D forced to swallow cocaine
balloons and transport them to America, coercer threatened to kill his
family if he didnt participate conviction overturned because if he
refused to cooperate, the consequences would be immediate and
harsh, and he had no reasonable opportunity to escape)
Even where duress isnt a defense to murder, D should still have a
defense if his participation was minor and it is not certain that if he
refuses then Vs death will be averted.
Regina v. Brown dissent, pg. 847

Duress should not be a complete defense to atrocity, but should be

considered as a mitigating factor in sentencing.
Prosecutor v. Erdemovic, pg. 847 (D soldier objected to order to
participate in mass execution, but obeyed when a superior threatened
to put him in line with the rest soldiers are expected to exercise a
greater degree of resistance to a threat than civilians. Dissent this
standard requires martyrdom)

Cultural Defense
No courts allow the cultural defense as an affirmative defense.
Question is where cultural evidence is relevant for mitigation.
Can reduce punishment in sentencing phase.
Can potentially be used as a provocation defense would have to be in a
Maher jurisdiction because the things provoking them are not in the box for
Girouard can particularize to the reasonable person from their culture.
Wu (D mother killed son and tried to kill herself because father was
mistreating them, entitled to present provocation defense)
Ds have tried to use it to negate actus reus (it was an involuntary act because
I was compelled to do it by my culture) doesnt work because to prove
involuntary act you have to be physically compelled or mentally absent.
Can be used to buttress insanity defense, but Ds resist the characterization of
mental disease, and they can be subject to civil commitment.
Can help for mistake of fact or mistake of law (but tends to fail because more
like direct mistake of law).
Moua (D immigrant thought he was participating in marriage-by-capture, but
V experienced it like kidnap and rape, mistake as to consent)
Chen (D bludgeons wife to death because in China, infidelity is a stain that
can only be eradicated by killing)
Kimura (D engages in mother-child suicide to rid family of shame of
husbands adultery)
Butler (D Native American kills desecrator of sacred burial ground)
Rodriguez (D had bar fight and Puerto Rican culture taught him not to back
Khat (Ds chew mild narcotic like caffeine, against the law here direct
mistake of law so no defense, but could be collateral mistake?)
Bui (D father killed children because wife was with another man and told her
if she didnt come home, he would kill the children)
Our country values the lives of the victims.
If you can prove the actus reus and mens rea, youre guilty.
We assume everyone knows the law here and the law applies to
everyone, and if Americans are held to that standard, immigrants
should be too dont want to give disincentive not to learn it.
Doriane Lambelet Coleman, pg. 289 when cultural evidence is
permitted to excuse criminal conduct, it creates a discriminatory

level of protection for victims who are members of that culture

(often women, so conflict between values of multiculturalism and
Our laws are cultural in themselves majority culture versus
James J. Sing, pg. 289 a cultural defense will advance two goals:
the achievement of individualized justice for the D and a
commitment to cultural pluralism.