Criminal Ohlin Outline 2016 Spring

Criminal Ohlin 2016 Spring
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CRINIMAL OUTLINE
Act requirements
Voluntar
y Acts
Omissio
n
Bystand
ers
Willed bodily movement

Voluntary appearance is presupposed by the statute
Sleepwalking, hypnosis automatism, seizures [3
jurisdictional approaches]
Defense of insanity
Affirmative defense of unconscious action
MPC: failure to proof defense

Time shifting argument
Possession
MPC: possession is an act if the possessor knowingly

procured or received the things possessed the things possessed
or was aware of his control thereof for a sufficient period to have
been able to terminate his possession
The failure to act or the absence to act when there is a
duty to do so.
The sources of duty
Statute
Relationship between defendant and victim

o
Jurisdiction split on whether friends have
duties to each other.
o
Duty to mitigate the harm caused.
o
Metaphorical family relationship(State v.
Davis)
Contract
o
Breach of a duty that one voluntarily agreed
to may constitute a crime.
Bystanders who witnessed the crime have no general duty
to intervene.
Bystander can be prosecuted if they encouraged, indicted,
or assisted the crime in a way that transformed them from "mere"
bystanders into actual accomplices or conspirators.
Mental States
Old
common
law rule
Use the ambiguous word "intent"

Distinction between specific intent and general intent
Specific intent requires both intent to the act and
intent to the consequence. Or intent to multiple elements of
the offense.

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Acting
purposely
Acting
knowingly
be
Recklessnes
s
General intent only require the intent to act itself.

Transformed intent
Intent followed with bullet. P want to kill A but
mistakenly killed B. under the transformed intent doctrine, A
will be convicted for murder while under MPC approach, court
should consider A's mental state towards B's death.
(knowingly or recklessly)
Advertent recklessness inadvertent recklessness
Inadvertent reckless is categorized as negligence
in MPC.
Defendant act purposely if
the element involves the nature of his conduct or
a result threreof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
Defendant act knowingly
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
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.
"practically certain" should be more than a risk. Should
decided by jury.
Willfully blindness [jurisdiction splits]
Common law approach: Government would
meet the burden of proof of "knowingness", If the
government can prove the fact that D was not actually aware
of the nature of his conduct is solely and entirely a result of
his disregard with a conscious purpose to avoid learning the
truth.
MPC: when knowledge of the existence of a
particular is an element of a offense, such knowledge is
established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.
o
The "high probability" requirement may be
problematic in some cases.
o
Conspiracy may be helpful to solve the
problem.
Defendant's consciously disregard of an substantial and

unjustified risk. "its disregard involves a gross deviation from the
standard of conduct that a law abiding person would observe in
the actor's situaion"
Consciously disregard: subjective test, need to

see the mental state of the defendant's mental state.

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Negligence
Strict
liability
offenses
Substantial risk: Objective test: there is a strong

possibility that the result might occur.
Unjustified risk: the defendant did not take
necessary precautions to avoid the risk.
Difference between recklessness and knowingness
Practically certain v. strong possibility.
Defendant's taking of a substantial and unjustified risk

that he should have been aware.
Difference between negligence and recklessness is not
the level of risk, but rather the defendant's awareness of the risk.
Criminal negligence or gross negligence
Most jurisdictions require a higher standard of

negligence that in tort.
Conviction of perpetrator who acts without a culpable
mental state.
Strict liability generally limited to minor offenses,
although the supreme court has never articulate a constitutional
limit on its use.
Three categorization in Canada law
Absolute liability: no affirmative defense. (this

would be unconstitutional in US)
Strict liability: affirmative defense available
Regular culpability offenses.
Mistakes
Mistake
of fact
Mistake
of law
Common law
Mistake was reasonable and crime was a specific
intent crime
Limitation of application adopted by jurisdictions.
o
moral wrong doctrine: mistake of fact is not
applicable if defendant subjectively believe that he was
doing something immoral. [criticized for theorize morality]
o
Legal wrong doctrine: mistake of fact is not
applicable if defendant subjectively believed he was still
committing some lesser crime.
MPC:
Mistake of fact is a defense if and only if it negates
the required mental element of the offense: "purpose,
knowledge, belief, recklessness or negligence" (failure to proof
defense)
A defendant's recklessness in the formation of his
mistaken belief may still be convicted of a crime of recklessness.
Common law
Mistake of law is not a defense

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MPC
Legal mistake might be relevant only if

knowledge/awareness of the law is a material element of the
offense. E.g. tax evasion. When applicable, mistake of law is an
excuse.
Additional defense: some jurisdiction recognize an

additional defense for reasonable reliance on an official
statement of the law that is later determined to be erroneous or
invalid.
o
The statement must have appeared in a
judicial order or decision, a formal administrative order, or
an official interpretation of the law proffered by an officer
"with responsibility for the interpretation, administration or
enforcement of the law defining the offense"
A defendant can also argue the law was secret or not

published.
Make a mistake argument is risky, because you are
admitting 90% of the fact and taking a lot of defense off the table.
Causation
But for
causation
(actual
cause)
Proximate
cause
(legal
cause)
Ask whether there is any causal connection, but-for.

When multiple cases is sufficiently close to hold the
defendant responsible for the resulting harm and defendant
makes no difference to the result. [court will replace but-for test
with other test, jurisdiction splits]
"substantial factor" test: whether the defendant's

actions were a substantial factor in producing the result.
"Acceleration theory": whether the defendant'

actions accelerate or hastened the result.
"Likelihood of survival" theory: whether

defendant's act greatly decrease the victim's likelihood of
survival.
The liability of first person would not be affected by
whether the other defendants are prosecuted.
Common law rule: a year and a day rule.
Modern rule: a defendant is liable if the result is
reasonably foreseeable.
Intervening factor:
Intervening agent's negligence will not break the

chain of proximate cause.
When intervening agent act

intentionally[jurisdiction splits]
o
Normal/abnormal test. touch stone is an
objective analysis: whether a reasonable person would
foresee the intervention occurring?
o
Responding and coincidental test.

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If the intervening agent is

responding to the situation, the causal chain is not
broken.
If the intervening agent's act in

unconnected to the first crime, the causal chain
would be broken.
O: the best way to apply the test is

to see whether the intervening agent's act is
coincidental first. if not, it is responding.
MPC approach: in cases of recklessness or negligence
that "the result involves the same kind of injury or harm as the
probable result and is not too remote or accidental in its
occurrence to have a just bearing on the actor's liability or on
the gravity of his offense."
Mainly based the analysis on fairness

consideration.
Dangerous games - joint enterprise
Drag race & Russian roulette
Scope of the game: if death happens after the

game, no proximate cause exist.
Intentional Murder
Common law
approach to
murder
Murder requires the killing of another human being

with "malice aforethought" --- the meaning of "malice" is very
imprecise
Implied malice and express malice
Express malice means the actor desired the

death of the victim. (similar to "intentional killing" in
MPC)
Implied malice involves reckless killing that

demonstrated a depraved indifference to human life
(knowingly or recklessly?)
First degree and

aggravated
killing
Most jurisdiction sorted out 2 categories of murder,

but used different standards
J1: First-degree murder for premeditation and

deliberation; and all other intentional murders are
second-degree murder.
J2: first-degree murder for special

circumstances such as killing of police officer, killing of
witness etc.
J3: use combination of approaches. Firstdegree murder as involving either premeditation or one
of the special circumstances.
Definition of
premeditation
Many jurisdiction require both premeditation and

deliberation.

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and
deliberation: for
J1/J3
Both prior planning and consideration of

whether to commit the crime.
But consideration of how to commit the

crime often presupposes that the defendant considered
whether to commit the crime at all.
In practice, courts will consider the time lag
between the commitment of the plan and execution of the
act.
Jurisdictions split on whether to allow

instantaneously deliberation and premeditation.
Commonwealth v. Carroll (sustained instantaneous
premeditation and deliberation)
MPC approach
MPC does not use the word malice. Simply define

intentional murder as a killing performed purposely or
knowingly and makes no attempt to distinguish between
different types of murder.
Under this approach, judge will decide culpability in
sentencing phase.
O: advantage of this approach is to leave the

difficult question of culpability to judges.
Disadvantage is that this will lead to

arbitrary decision; and the deterrence effect of different
label of murder, which is to give signal to society
regarding culpability of conduct, will be extinguished.
Voluntary Manslaughter
Definition of
voluntary
manslaught
er
Provocation
In certain situation, murder can be downgraded to

voluntary manslaughter.
J1: when the killing was performed with

provocation
J2: when killing is performed with extreme

emotional disturbance.
The effect of Provocation

provocation is an partial defense, in jurisdiction
where murder is defined as intentional killing, which lead
offense downgrade to voluntary manslaughter.
provocation is a failure of proof defense, in
jurisdiction where murder is defined as malice aforethought,
to negate the element that defendant acted with required
malice, so must be prosecuted only for voluntary
manslaughter.
Requirements to qualify as defense of provocation.
Adequate provocation
o
The action must be calculated to inflame
the passion of a reasonable man and tend to cause

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Extreme
Emotional
Disturbance
(MPC)
him to act for the moment from passion rather than

reason. The triggering event must fall into one of the
recognized categories:
Extreme assault on the defendant;
Mutual combat;
Illegal arrest of the defendant;
Injury or serious abuse of close

relative (or friend)
Sudden discovery of spousal

adultery
o
[Jurisdictions split] some interpret the
categories liberally, some interpret them rigidly.
o
"Words as provocation": [jurisdictions
split]
Some courts held mere words never

constitute provocation.
Some held words can be enough if

they inform the defendant of the underlying
incident.
Killing in the heat of passion
Performed suddenly before reasonable
opportunity for passions to cool.
o
Mob action can not be a triggering event,
but might affect the "cooling off". Defendant can argue
that without the mob, the defendant would have cooled
off much quicker. State v. Castagna
Causal connection between provocation,
passion, and killing.
MPC: murder is downgraded to voluntary manslaughter

when "committed under the influence of extreme mental or
emotional disturbance for which there is reasonable
explanation or excuse"
Adopted subjective test of reasonableness.
State v. White: Utah code curtailed the last part

of the MPC rule when adopting it. So, the court interpret the
statute to still use objective test of reasonableness in
common law.
Discard the inflexible categories of provocation, and
adopted a functional standard designed to catch any
circumstances that produces the mental disruption.
Aggregation of small events. Can argue for both

sides.
Reckless Killing

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overview
Involuntary
manslaught
er
Murder
Misdemeano
r
manslaught
er rule
Reckless killing fall into 2 categories: murder or

involuntary manslaughter.
The difference between the 2 comes down to a
difference in degree not in kind.
Involuntary manslaughter is an unintentional killing
based on the defendant's unjustified risk-taking behavior.
In practice, prosecutor has to establish

o
Risk-taking behavior with awareness
o
A reasonable person would not have taken
the risk.
Also, in some jurisdiction, negligence is enough for
A reckless killing can rise to the level of murder.
[jurisdictions split] on 2 avenues
Implied malice murder

o
In jurisdiction treat murder as "killing with
malice aforethought", a killing would be convicted of
murder if the depravity evinced by the defendant was
especially severe or there was evidence of an
"abandoned and malignant heart".
MPC:
o
Treat reckless killing as murder if the
killing is committed while manifesting an extreme
indifference to the value of human life.
Permits conviction for involuntary manslaughter if
defendant commits an underlying misdemeanor that result in
death
Required mental state is mens rea for underlying
misdemeanor.
Prosecutor needs to prove [e.g. firework case state v.
Biechele]
Commitment of misdemeanor
Death
Causation between misdemeanor and death
Felony Murder
Felony murder allows a court to convict a defendant who commits a
felony that results in someone's death. Subject to 3 limitations.
A triggering felony + resulting killing = felony murder

o
The prosecutor can switch the intend requirement, and
only need to prove the defendant commit the triggering
felony.
o
The prosecutors do not need to prove the defendant
actually killed the victim (jurisdiction splits on this, see
the agency approach and proximate cause approach below.),

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but rather that the defendant's crime created a potential risk
that the victim would be killed.
The rationale of felony murder
o
Commission of inherently dangerous felony
o
And to deter felons from killing negligently or accidentally
by holding them strictly responsible for the killings they
commit.
Independe
nt felony
or merger
limitation
Inherently
dangerous
felony
limitation
If the triggering felony includes the result killing, the

equation was not satisfied.
One way of determining whether the underlying felony is
independent is by asking whether the felony would merge into
the more serious offense of murder.
Assaultive felony would merger with murder. (rape

is not assaultive)
o
How to decide whether a felony is
assaultive?
Fact methodology: look to the facts

itself
Abstract methodology: Just focus on

the abstract element of the triggering felony in
statute rather than the fact of the case. If the felony
has an assaultive aspect, the crime merges with the
underlying homicide even if the elements also
include conduct that is not assaultive. People v.
Sarum Chun
This limitation is most important in jurisdictions without a
statutory list of triggering felonies.
In
furtheranc
e of the
Felony
limitation
[causal
requireme
nt]
The triggering felony must be inherently dangerous.

2 ways to decide inherently dangerous.
Looks to the definition of the crime in the
abstract and to see whether it always involves
dangerousness
Driving with willful and wanton

disregard of human life is very broad, thus would not
always involves dangerousness. People v. Howard
Looks to the facts of the case
The killing can not be too remote from the triggering

felony. The killing must be in furtherance of or in the perpetration of
the felony.
In most jurisdictions, escape and evasion of law

enforcement is considered part of its commission, so the
resulting death would be in furtherance of the felony.
Co-felon killed by police officer scenario.

o
Agency approach
under agency approach, the killing

should be committed by the physical act of the
defendant or co-felons [co-felon's murder is

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o
MPC
approach
attributed to the defendant];

Proximate cause approach.
in jurisdiction without agent
requirement, defendant can be convicted for felony
murder as long as the proximate cause
requirement is met.
MPC rejects the doctrine of felony murder, but codifies its

own presumption doctrine that creates a similar effect.
MPC 210.2(1)(b) on murder

o
"it is committed recklessly under
circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference
are presumed if the actor is engaged or is an accomplice
in the commission of. Or an attempt to commit, or flight
after committing or attempting to commit robbery, rape,
or deviate sexual intercourse by force or threat of
force, arson, burglary, kidnapping or felonious
escape"
The key is "presumed" the idea is that when the

killing is happened during the commission of certain felony,
the mens rea for murder is presumed. But as long as the
defendant satisfy the burden of production to show that the
murder was not committed under extreme indifference to
human life. The prosecutor would still bear the burden of
persuasion.
Negligent Homicide
Overview
Ordinary
negligence
In order to classify a defendant's act to be criminal negligence, some

jurisdiction requires gross negligence some others only require ordinary
negligence.
The difference between ordinary negligence and gross negligence is
one of degree not kind.
o
I.E. the level of risk that was taking by the defendant, while the
defendant was not aware of the risk. (if he was aware of the risk, he would
be reckless)
The crime of negligence homicide.
o
At common law, there is no crime of negligent killing, and treat
killing with gross negligence the same as reckless killing as involuntary
manslaughter.
o
Some jurisdictions recognize the crime of negligence homicide.
Some apply the standard of ordinary negligence, some apply the standard
of gross negligence.
Ordinary negligence only requires a mere deviation from the standard
of ordinary care. Widely criticized.

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Gross
negligence
Emergency:
Emergency situation should be considered to decide whether
the defendant is negligent, unless the emergency is caused by the
defendant. [People v. Traughber]
But it is still arguments about what a reasonable
The defendant's behavior must represent a gross deviation from the

standard of care that a reasonably prudent person would observe under the
circumstances. --- the standard is the same with the "gross negligence" in tort
law, where such negligence is not waivable by the defendant.
ordinary negligence and gross negligence is the deviation, i.e. level
of risk.
o
Or "delta" between "what a reasonable person would do"
and "what the defendant did"
o
E.g. Defendant, who had previously pled guilty to child
abandonment and knew leaving her young children alone unsupervised was
against the law, was gross negligent to leave her child at home and caused
the death of her child. [State v. Small]
Rape
Definition
of rape
Unconsen
t is the
key
Force
The issue is whether rape is only a crime of nonconsensual sex or crime of violence?
J1: Non-consensual sexual intercourse completed by force
or threat of force.
J2: Non-consensual sexual intercourse. (force is only for
the level needed for intercourse.)
The level of force required:
Extrinsic force standard

o
Traditional rule, requires the force to be sufficient to
overcome resistance.
Some require physically resistance and

defendant overpowered the victim's resistance.
Utmost resistance standard.
Earnest resistance standard.
Reasonable resistance standard, ---require a

woman offer resistance which is reasonable under
the circumstance.
Abandon the requirement of

resistance.---MPC and most states
Others allow verbal resistance to meet the

requirement
Intrinsic force standard.

o
Reformed rule, the force needed inherently for
intercourse is enough.

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Threat of
Force
Consent
Level of threat of force:
Most jurisdiction require that the threat prevent the

victim from resisting due to a reasonable fear or
apprehension regarding the victim's safety.
o
requiring both a subjective component (a
sincere fear) with an objective overlay (the fear was
objectively reasonable)
Non-physical threats (such as threatening financial harm
or professional retaliation) do not constitute rape but might trigger
the application of some other criminal or civil statute.
MPC approach: very restrictive. It is the threats of
"imminent death, serious bodily injury, extreme pain or kidnapping.
"unconsent" is the key to conviction.

The definition of consent
i.
Some jurisdictions view it as a verbal act,
established by saying "yes" or "no".
ii.
Other courts view it as a state of mind, which ask
whether the victim wanted the encounter to occur or not.
Issue of mistake of fact

In some jurisdiction, rape is a general intent crime,
i.
and proof that a defendant intended sexual intercourse
by force + the victim did not in fact consent is enough.
---"unconsent" is an attendant circumstances.
Some other jurisdiction hold rape is a specific
ii.
intent crime. So they attach the mens rea to each element of
the crime, including "unconsent". Then the mistake of fact can
be applied.
Balancing mechanism:
iii.
o
If the jurisdiction require extrinsic force, it is
appropriate to have the strict liability on issue of consent.
Because the force requirement make the defendant not
likely to be mistaken about the consent.
o
If the jurisdiction only require intrinsic force,
then the court should be careful about the possibility of
mistake of fact.
Rape by fraud - the defendant procures the victim's

consent by lying or making some fraudulent representation. [only
applies to jurisdictions do not require extrinsic force]
Fraud in the factum: lie on the nature of the act,
i.
the victim did not know they are having sex. --- shall be
convicted.
Fraud in the inducement: Victim knew they were
ii.
having sex but only agrees to it because of the lie.
o
Shall not be convicted generally.
o
Exception: perpetrators who impersonate
the victim's spouse in order to fraudulently achieve
consent.
Statutory Rape - lack of capacity

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i.
ii.
A defendant can also be convicted of rape if the

victim is legally incapable of consenting to sex.
o
Young age
o
Incapacitation from drugs/alcohol
o
Mental defect associated with mental
disease
o
Professional relationships
Rationale: certain relationships are so

inherently unequal as to prevent formation of true
consent.
Exception: Romeo and Juliet Act
Attempt
Overview
Specific intent or
purpose
Starts committing the

crime (distinguished
with mere preparation)
Rationale for punishing attempt

Society wants to give police officers the incentive to
intervene in a burgeoning criminal endeavor and prevent the
perpetrator from consummating the offense.
2 elements for punishable attempt
Defendant has specific intent or purpose to bring
about the crime
The defendant starts committing the crime
2 defenses
The crime is impossible to complete
the defendant abandoned the effort
The defendant must intend to bring about the crime.

MPC purpose requirement only applies to conduct.
Defendant purposely engages in conduct that would
constitute the crime"
Attempted reckless crime?
Most courts rejects this idea, Conflict with the
requirement of specific intent.
o
Under this doctrine, there is no attempted
felony murder/implied malice murder.
Others The court's upheld the idea of attempted
o
The solution was that the "specific intent" only
attaches to conduct not the result. So the key in
manslaughter is the defendant's mens rea towards the risky
conduct. People v. Thomas
Six tests
Slight-act test: allows liability if defendant's design to
commit crime is clearly shown and the actor commits even slight
acts in furtherance of design.
o
There is conversation between the element of

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Impossibility defense
Abandonment
specific intent and the commission of acts.

Physical proximity test: Defendant is close in
time/space to final act that completes the crime.
Dangerous proximity test: was defendant dangerousl
close to committing crime?
o
Causal analysis. Closeness is used in
conceptual term because geographic and temporal does
not work sometimes.
Unequivocality test: does defendant's conduct
unequivocally demonstrate intent to commit crime?
o
An actus reus requirement that loops back and
refers to the mental element.
Probable desistance test: defendant's conduct would
result in completed crime if not for third party interruption (e.g.
policeman).
o
Absent interruption, what would have occurred
MPC substantial step test: D engages in substantial
step in a course of conduct planned to complete crime
o
See the laundry list in MPC 5.01(2)
o
Notice the language that the jury can find
substantial step but is not required to. This means that when
jury find substantial step based on the list, the appeal court
can not negate the finding.
Factual impossibility: a factual element prevented the

defendant from completing the crime. [without the element, the crime
would have been completed] --- never a defense.
E.g. jammed Gun

Legal impossibility: the defendant mistakenly believe he
was committing a crime but actually not. ---could be a defense in
situation of pure legal impossibility.
D thought he was doing something illegal, but it is

actually legal.
Hybrid legal impossibility: defendant made a mistake
regarding the legal status of a fact that is necessary to establish a
required element of the offense. ---jurisdiction splits.
E.g. D takes merchandise that he believes to be stole

but is not stolen. D was not convicted.
E.g. D shot a dead body which he though was alive. D

was convicted of attempted murder.
In general courts today are inclined to reject impossibility
defenses regardless of how they are classified.
The abandonment defense applies if the perpetrator

"voluntarily and completely" renounced his criminal purpose.
The abandonment can not be pressured as a result of

resistance of victim or fear of apprehension because police are
responding to the scene.
Not all jurisdictions recognize abandonment

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Abandonment must be truly voluntary.

Not a result of victim's resistance
Not from a fear of police apprehension.
Inchoate Conspiracy
overview
Agreement
Specific
intent or
Conspiracy is an agreement between two or more individual to

commit an unlawful act.
Elements
Agreement to commit an unlawful act.
Specific intent or purpose to achieve the goal or object of the

conspiracy.
Overt act in furtherance of the conspiracy.

Non-merger: Defendant can still be charged with inchoate conspiracy
even if the completed offense comes to fruition.
Rationale:
o
conspiracy is a form of collective criminality, which
representing a "distinct evil".
o
Because conspiracies always include multiple criminals
acting in concert, it is more dangerous than the same crime
committed by single individual.
The agreement itself is the criminal act of the offense. Does not
require an explicit agreement. An implicit agreement between two or more
individuals , even if never rendered in more explicit terms, qualifies as a
conspiracy.
conscious parallelism (each part do certain thing based on
independent reason with out a agreement) is not an implicit agreement.
Feigned agreement
Bilateral approach: require 2 sincere parties to the agreement

o
Rationale:
the conspiracy rule is to deal with the increased

danger to society posed by group criminal approach. In fake
conspiracy situation, there is no such increased danger. [people
Pacheco]
We already have solicitation to solve unilateral

problem.
Unilateral approach: a single individual can create an

agreement even if there is no true agreement with the other party.
o
Rationale:
the only reason here he did not conspire with a

bona fide co-conspirator is because the opposite party is
accidently be a police officer. If it is not so, the action of
conspiracy is still dangerous.
punish criminal intention.
Jurisdictions differ
Some require specific intent that the group commit the crime.

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purpose
The overt act

requirement
Renunciation
MPC: the men rea is "the purpose of promoting or facilitating i

commission"
Evidence of intent
The defendant's specific intent or purpose will often be inferre
based on relevant facts and his behavior. Only rarely will government have
direct evidence.
Jurisdictions usually have both a general conspiracy statute, as well

as specific conspiracy provisions tailored for particular criminal offenses.
Most general conspiracy statute require an overt act in

furtherance of the conspiracy. Which is to restrain government from use
conspiracy to punish just bad thoughts.
specific conspiracy statutes may dispense with the

requirement.
o
MPC dispenses with the overt act for conspiracy to
commit first-degree and second-degree felonies, but requires an over
act for all other crimes.
Distinguish Attempt and inchoate conspiracy
IC is to punish one who agreed to commit a crime, the overt a

requirement is only to avoid the 1st amendment argument that mere
speech should not be punished.
Attempt cares more about how close one can actually commit
the crime and the act requirement is to distinguish attempt from mere
preparation.
About the Act
The act does not need to be committed by the defendant

himself, it is sufficient if one member of the group commits the act.
The Act could be minimum but should be more than the makin
of the agreement itself.
o
Giving speech could be an overt act. United States v.
Abu Ghayth
The act should be designed to furtherance the crime but does

not have to be actually helpful to the crime.
Liability for conspiracy as an inchoate offense is not extinguished

when the defendant stops pursuing the conspiratorial objective .
Sufficient renunciation
MPC: the defendant must fully renounce the conspiracy by

thwarting the conspiracy.
o
In practice this means contacting the police or depriving
the conspiracy of its effectiveness.
J1: the defendant made reasonable efforts to stop the

conspiracy.
J2: refuse to recognize the defense entirely. The crime is

completed once the defendant agrees the plan and does the overt act.
Solicitation

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Overview
o
o
o
o
Distinguishing
solicitation
from
conspiracy
Distinguish
from Attempts
Solicitation is both an inchoate offense and a mode of liability.

Merger: solicitation will merge with the completed offense.
Elements:
Specific intent or purpose.
D must truly desire the other individual commit the cri
Jokes does not count.
To solicit (hire, command, request, encourage, or invite)
Communication must be sent.
Courts split on whether communication must be receiv
Unilateral theory: Some courts allowed solicitati

the communication is not received. (MPC)
Bilateral theory: Others consider it attempted

solicitation.
A third party to commit a crime.
HYPO: women posted ads in the name of another wom
claiming desires to be raped by strangers.
If the victim was raped:
Instrumentality rule: if the third party did not kn

was committing the crime, the solicitor would be convicted as t
principal perpetrator.
If the victim was not raped:
Soliciting an innocent agent does not count as

solicitation, but qualified as attempt liability. MPC 5.01(2)(g)
As a factual matter most cases of solicitation will qualify as a consp

Because hiring constitute an agreement.
As a legal matter
Solicitation does not require overt act.
Focus of the two crimes is different

o
Solicitation focuses on the acts and mens rea of the de
alone.
o
Conspiracy focuses on the relationship between the pa
The second individual should agree to the proposal.
o
o
o
o
Different act requirement

Actus reus
Solicitation does not require overt act;
attempt liability requires that the defendant perform w
actions constitute
a substantial step or
place them in dangerous proximity to success o
whatever type of action would meet that jurisdic

standard for attempt liability.
Time of completion
Solicitation is completed once the defendant solicits th
man.
whether the further action of paying money and make
arrangement of the crime meet the threshold of attempt crime is a f

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o
o
Renunciation
issue to be decided by jury. To distinguish with mere preparation.

Solicitation as acts of attempt:
Will pass slight act standard. People v. Decker
It is hard for mere solicitation to pass the act requirem
state with stricter standard.
Verbal solicitation may constitute the substantia

required for attempt liability when
The solicitation takes the form of urging
The solicitation urges the commission of t

at some immediate time and not in the future
The cooperation or submission of the per

being solicited is an essential feature of the substantive cr
State v. Wards
Sufficient renunciation
J1 (MPC): allows the defense of renunciation if the defendant
persuades or prevent the solicitee from carrying out the crime.
o
Like conspiracy, renunciation must be complete and vo
J2: solicitation is completed once the request is made. No def
renunciation.
Accomplice
Overview
Assistance or
support
The term accomplice and its adjective form

"complicity" covers everyone but the physical perpetrator of
the crime.
Accomplice can be punished as harshly as the
principal perpetrator they assist. But could not be convicted of
a greater crime than the principal perpetrator.
Requirements
Assistance or support to the principal

perpetrator
Performed with the purpose or knowledge

(depending on the jurisdiction) to facilitate the crime
The Act requirement is very broad, as long as the
accomplice perform some affirmative act to support the
principal.
Aiding, abetting, counseling, encouraging,

advising, commanding, ordering, inducing, or soliciting
etc.
o
Being a mere bystander will not
constitute encouragement, court consider this to
be omission. People v. V.T.
o
Presence indicating financial support to
the violation of immigration law is considered to be
accomplice. Wilcox v. Jeffery.
o
In rare circumstances, an omission will

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Purpose
versus
knowledge
Natural and
probable
consequence
doctrine
constitute encouragement only if the defendant had

a preexisting duty to act. People v. Davis
(defendant's son raped the victim while the
defendant laid down nearby at defendant's house,
and the victim has a metaphorical family relationship
with the defendant)
Ineffectual assistance
The assistance requirement does not
necessarily require a strong causal
connection between the accomplice's assistance and the
crime committed by the principal perpetrator.
Accomplice can still be convicted, even the
principal would kill the victim without the accomplice's
help. People v. Tally
Jurisdiction splits on the accomplice's mens rea
J1: requires purpose to facilitate the crime.
(like specific intent)
J2: mere knowledge his act would facilitate the
crime is enough.
o
E.g. selling the gun to perpetrator
knowing the principal would use the gun to kill the
victim, but D sell the gun only for the money.
J3: different standard for different crimes. A
jurisdiction could adopt purpose as the standard for
complicity in most felonies but allow knowledge as the
appropriate standard for murder.
Accomplice's mens rea towards the result
If the principal commits a result-crime based
on recklessness, the accomplice need not intend that
result. It is enough that the accomplice also is reckless or
negligent as to the result.
o
HYPO: D giving 2 guns to two women for
a "trial by batter". While one women raise the gun, it
fired accidentally. D was convicted of involuntary
manslaughter.
When principal actually commits a different crime, is

the accomplice liable for the higher crime? [jurisdiction splits]
J1: No. Because it does not meet the

requirements of "performed with the purpose or
knowledge to facilitate the crime". (MPC)
J2: Yes if the resulting crime was a "natural

and probable consequence" of the target offense that
the accomplice was assisting.
o
As for the natural and probable
consequence, most jurisdictions use objective
standard.
o
Rationale: accomplice has put his lot in

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with the principal and so bears the burden that the
criminal transaction might turn out differently than
anticipated.
E.g. D encouraged Co-D hit the victim to take the
victim's wallet. But the Co-D killed the victim. D's intent
towards the death was only recklessness. People v. Pretty
By applying principle of homicide, the

defendant should be responsible for manslaughter. But
under the doctrine of natural and probable consequence,
D could be convicted for murder.
Another way to see it is transferred intent.

We can transfer the intent from
Innocent
instrumentali
ty rule
In the situation involving an "innocent

instrumentality", the behind-the-scenes person is classified as a
principal perpetrator.
Innocent instrumentality is normally child or

insane individual or sane adult who are duped into
performing an action the do not realize is criminal.
The rule applies only when the "instrument" is

not culpable for the crime.
Innocent instrumentality rule is an exception to the
general rule that the perpetrator who performs the physical act
of the crime is the principal.
Defense
withdrawal or renunciation of the crime.

Most jurisdiction accept the defense but the
requirement vary.
MPC 206(6): accomplice must deprive his
complicity of its effectiveness, contact the police, or
prevent the crime. --- Simply walking away would not be
enough.
Conspiracy liability
overview
Here the conspiracy is used as a link to make the

defendant responsible for the crimes committed by her coconspirators.
Requirements:
There must be an agreement
the defendant must specifically intend for

the group to commit the target offense.
When conspiracy is used as a mode of

liability. The crime must be completed.
Issue to address
How extensive is the liability
How to define the scope of conspiracy that

the defendant is responsible for

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Scope:
reasonable
foreseeabil
ity
Scope of
conspiracy
How does one withdraw from the conspiracy

and terminate one's vicarious liability.
2 aspects of Pinkerton liability

Narrow: Defendant is responsible for crimes
perpetrated by co-conspirators that fall within prior
agreement's scope. [uncontroversial]
Broad: defendant is also responsible for

crimes outside the agreement's scope if they are
reasonably foreseeable consequences of the conspiracy.
[controversial] [rejected by MPC]
Objective view and subjective view towards
foreseeability
Subjective view: the defendant must have

been aware of the risk yet consciously disregarded it and
participated anyway.----like recklessness.
Objective view: the defendant need not have

been aware of the risk although he should have been
because a reasonable person in similarly circumstances
would have foreseen the result. ---like negligence. [the
same as accomplice]
If the D is both accomplice and conspirator. You
should discuss both situations!
If the defendant is also responsible for his coconspirators' acts, it is essential to identify the conspiracy's
temporal/geometric scope.
Drug distribution conspiracy
Could be viewed as a collection of smaller,

overlapping conspiracies, or as one mega-conspiracy
o
If distribution consists of small,
overlapping conspiracies, the defendant is only
vicariously responsible for crimes of his local coconspirators
o
if distribution is composed of a single
large conspiracy, then the defendant is vicariously
responsible for all of it
Courts can aggregate overlapping

conspiracies to a single conspiracy if the defendant
knew it involved other persons/transactions (even if he
never met them)
Geometric scope of conspiracy
Bruno and Kotteakos: the spokes of the

wheel.
o
Bruno involves large narcotic
distribution ring with multiple smugglers and
retailers. Expressed in the metaphor of the wheel,
the separate spokes were connected because each
retailer knew that the wheel had other

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spokes.
Kotteakos: involved a series of
conspiracies overlapping with a common criminal,
Simon Brown. Here there was no reason for each
conspirator to believe that Brown required other
confederates to complete his transactions. Also the
existence of confederates is contingent on the fact
he was repeating the conspiracy multiple times, as
opposed to Bruno where a large stash of narcotics
necessarily had to be divided up between retailers.
Temporal scope of conspiracy
Retroactivity
o
Pinkerton liability is not retroactive.
Conspiracy endures after the objective is
achieved only when there is an explicit agreement (as
opposed to mere inference) to cooperate to conceal their
criminality.
o
Withdrawa
l
Acts already performed by co-conspirators cannot

be disowned but the link to future acts could be severed if the
defendant successfully withdraws from the conspiracy.
Standard for withdrawal
Most require the defendant perform an

affirmative act to disavow or defeat the conspiracy. Like
o
Informing the authorities of the
criminal endeavor;
o
Communicating withdrawal to the coconspirators;
o
Dissolving the underlying agreement
that forms the basis of the conspiracy.
Simply refraining from actively pursuing the

objectives of the conspiracy is insufficient.
Being kicked out from the group can not be
construed to be withdrawal. United States v. Schweihs
Self-defense
Overview
o
o
Self-defense is a justification.
elements for self-defense
Reasonable belief of an imminent threat of death or
serious bodily injury.
The defensive force must be necessary.
The defendant either could not escape or was

under no duty to escape.
The response was proportionate to the

intrusion that he faced. Deadly force is warranted only when
the threatened injury was serious enough.

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Reasonable
belief
[mental
state]
Defendant must sincerely believe that he faces a threat of

death, severe bodily injury, or sexual assault.
Subjective approach: limits analysis to whether

defendant's belief was reasonable to him or her.
o
Criticism: if we let the perpetrator to set the
standard of his act, the society would be out of order. Everyone
will kill others based on their own reasonable thinking.
o
MPC: If the defendant' s belief was wrong and was
recklessly, or negligently formed, he may be convicted of the
type of homicide charge requiring only a reckless or negligent.
[mistake of fact analysis may be used]
Objective approach: 2 level analysis

o
Whether the defendant sincerely and honestly
believed that he faced a threat and that force was necessary to
repel it.
o
Whether that belief was objectively reasonable
under the circumstances.
Highly contextualized hybrid standard:

o
Close to objective approach, but jury should be
permitted to consider the physical attributes of the parties and
the defendant's personal circumstances, including any relevant
prior experience.
when the actor unreasonably use defensive force
On-Off switch approach:

o
Either the defendant is justified or not.
If the defendant is justifies, he should be

acquitted and go free.
If the defendant is not justified, he should

be convicted of murder
o
The criticism of this approach is that the actor who
mistakenly use defensive force are placed in the same category
as murderer who kill for more nefarious reasons.
Imperfect self-defense approach: [allow defendant use

self-defense as a partial defense]
o
Actors who mistakenly use self-defense would
have his murder conviction downgraded from murder to
voluntary manslaughter or (if under MPC) other crimes based on
his mens rea to the mistake of fact. ---a partial defense similar
to provocation or extreme emotional disturbance.
o
In practice this would be a fallback argument for
defendant's lawyer.
o
Imperfect self-defense and delusional killing
The court held that if one brought the

defense based on one's delusion. He is forced to use
such defense under the track of insanity [the
outcome would be either acquisition or murder]
rather than self-defense track to reduce the guilty.
People v. Elmore
Under the insanity track: the answer would

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only be guilty or not guity. But where a jurisdiction adopted
the imperfect self-defense doctrine, the self-defense tract
would provide a middle ground --- manslaughter.
Imminent
threat [time]
Necessity
and duty to
retreat
Common law
Threat must be imminent; target of attack is entitled to a
right of response before the attack;
defensive force cannot be too far in advance or after the
threat has evaporated.
o
But defensive force may be used to avoid a second
wave of attack.
To determine how close in time the defensive force must
be to the attack, juris exercise discretion by engaging in factintensive inquiry.
Exception:
o
Battered Women's Syndrome: women who killed
abusive partners even when they were not under direct assault
at the moment can be deemed as self-defense. States v.
Norman
Argument is that the wife misperceived the

natural of the threat. The court should treat such
misperception with charity. This is more like an excuse, it is
closer to a insanity argument.
This exception in common law can be easily

justified by the MPC immediate necessity approach.
Because for the wife this is the best last chance to stop the
attack.
MPC:
Rejects the imminence requirement. Apply the standard
of immediate necessity.
The test is whether this is the best last chance to stop
the attack.
Difference between 2 approaches'
Imminence requirement cares about the time between
the use of force and the attack.
Immediate necessity cares about the time between the
use of force and the last best chance to stop the attack.
If the target of attack can safely retreat and avoid using violent
force, he is legally required to do so.
Duty to retreat is only part of the necessity requirement.

Even though a D is justified not to retreat, it does not mean the
necessity requirement is totally met. The D still should not use lethal
force if non-lethal force is enough to stop the crime.
Castle exception: legal presumption of necessary use of force.
When the target is in their home, the homeowner is not

required to retreat; the necessity standard is met.
But this does not automatically mean that deadly force is

justified when there is an intruder; elements of self-defense might

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not be satisfied for other reasons.

o
But reasonable fear requirement is also presumed
if the attack is happening inside one's house.
Stand on your ground laws:
These abrogate the duty to retreat in a wide variety of
situations. They usually repeal the duty to retreat as long as the
actor who deploys defensive force was lawfully in that location.
Some statutes create a legal presumption that the
homeowner had a reasonable fear of death or serious bodily injury
from the intruder.
Defensive force used by police

Overview
Constitutio
nal limits
Police officers can either appeal to the general

justification of self-defense or defense of others, or to a specific
statutory justification for police officers. [Some state grant police
officers a broader defense than the self-defense justification
available to regular civilians.]
o
For police officer, there is no duty to retreat.
Police officer who use excessive force might be subject
to:
o
Private lawsuit
o
Federal criminal charges for violating civil rights
o
State law
Fourth amendment requirement: [Tennessee v. Garner]

4th amendment prohibits the government from
engaging in unreasonable search and seizures.
Police officer may use deadly force against a
fleeing suspect when
o
the officer reasonably believes that the
suspect poses an immediate danger to another
person- either the police themselves or the public at
large and
o
The deadly force is necessary to prevent
escape and
o
Warning has been given if feasible.
Analysis of immediacy of the danger:
The standard is forward looking (what might the
suspect do in the future), suspect's prior crimes no longer
directly relevant.
But past conduct can be used to decide future
dangerousness.
o
threatens the officer with a weapon
o
there is probable cause to believe that
he has committed a crime involving the infliction
or threatened infliction of serious physical harm.

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Civil rights
violation
Federal civil rights legislation prohibits the police from

willfully subjecting any person to "the deprivation of any rights,
privileges, or immunities secured or protected by the Constitution
or laws of the United States"
Elements to Prove
The defendant was acting under color of law

o
Like issue that police off duty.
He deprived a victim of a right protected by the

Constitution or laws of the United States
o
[the rights at issue in police defensive force
is Fourth amendment's prohibition against unreasonable
seizures.]
He acted willfully
o
An act is done willfully if it was committed
either in open defiance or in reckless disregard of a
constitutional requirement which has been made specific
or definite.
The deprivation resulted in bodily injury or death.
Necessity
Overview
The justification for the doctrine of necessity is an utilitarian bala

The defendant's criminal act was justified because violatin
results.
In US, most scholar agree that necessity constitutes a justificatio
o
The difference between justification and excuse
A justification negates the wrongfulness of the act
Excuse simply negate the culpability of the actor.

Because the doctrine is too powerful, the law imposes a substan
constraints.
o
Defense to murder
o
Civil disobedience
o
Requirements for
necessity defense
o
o
Requirements
Balancing of evil
The defendant's violation of the law produces a less
defendant complied with the law. [most essential doctrine of the
E.g. an individual without a driver's license might ar
the car outweighed the harm that would be caused if he did not d
hospital.
Imminence
The danger sought to be avoided must represent a
immediate threat.
Mere "speculation and conjecture" of imm

enough. United States v. Ridner
he defendant must not have continued the illegal co

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averted.
o
o
but
o
o
E.g. the individual driving his dying friend dro

but then uses the car to drive home.
D has no fault in creating the situation
The defendant cannot be responsible for creating th
produced the state of necessity. (No recklessness or negligence)
No alternative
The defendant must have no alternative but to viola
Causal relationship
Causal connection between the criminal act and the
The defendant must have a reasonable belief that c
contribute to averting the threatened harm.
The Crime cannot be representative of legislative choice
Many jurisdiction disallow the defense if the crime i
legislative choice to disallow a claim of necessity. MPC: a legislati
justification claimed does not otherwise plainly appear.
Justified necessity and excusable necessity
Justified necessity: necessity negate the wrongfulness of t
US law only recognize justified necessity.
Excusable necessity: necessity negate the culpability of th
not subject to punishment.
German law recognize both excusable necessity and
justified necessity
Defense to
murder
Excusable nec
When
When satisfied the utilitarian

balancing of evil
When made th
balancing the
How
Justification, so not punishable
Subject to less
Dudley & Stephens

Necessity is no defense to the killing of an innocent huma
heroic self-sacrifice.
Rationale
o
Every human life has an inherent moral worth that m
cannot be balanced away in order to achieve social benefits. We
human life.
o
Deworkin's idea of right: right is a trump card again
The criticism of utilitarian is that it does not treat people different
NOTE: Nowadays, jurisdiction splits.
o
Necessity is available
as a defense to
manslaughter
Necessity not
applicable for
murder or class A
felonies
Necessity is allowed
defense to intention
and mitigates the de
responsibility from fi
second-degree inten
homicide. [Wisconsi

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Necessity and
Prison Break
Necessity and
civil disobedience
Necessity arguments are sometimes made by prisoners.

Need to escape a threatened harm like possibility of murd
additional doctrinal requirements for evaluating necessity claims
The escapee must demonstrate that he exhausted all othe
threat.
o
E.g. reporting the situation to the authorities
he must proffer evidence of a bona fide effort to surren
as soon as the claimed duress or necessity had lost its coercive force.
o
Vague and necessarily self-serving statements of de
to future good intentions or ambiguous conduct simply do not sup
effort
The necessity defense is generally allowed for direct disobedienc

indirect cases.
Direct civil disobedience applies when the protestors b

are protesting.
Indirect civil disobedience is where the violation of law

directly connected to the harm associated with the policy.
But remember all other requirements of necessity should also be
Rationale for not allowing necessity defense on indirect civil diso
Schoon
No imminent harm: The immediate harm this form of pr

effect caused by the enforcement of the law, but the existence of the
is too insubstantial an injury to be legally cognizable.
No abatement of harm: Indirect civil disobedience woul

because the action is indirect, whether the harm would be abated is fi
congress, which is uncontrolled by the protestors.
Existence of alternatives: Legal alternatives will never

when the harm can be mitigated by congressional action. There are bu
activity can be used.
Duress
overview
Threats that
Jurisdiction splits on whether Duress is an excuse or justification

In order to satisfy the defense of duress, defendants must show that
committed the crime because:
They or a third party faced an imminent threat from anothe

with no opportunity for reasonable escape;
An individual of reasonable firmness would be unable to res

threat;
The crime committed was not murder;
The defendant was not reckless or otherwise culpable in

the circumstance that produce the duress.
2 elements: imminent threat; no avenue of escape

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vitiate
autonomy
Imminent threat: there must be some evidence that the thre

was present, immediate, or impending.
o
A veiled threat of future unspecified harm will not
requirement. United states v. Contento-Pachon
Escapability: the defendant must show that he had no reason
opportunity to escape
o
Because considering the hardship of escape (like move
family to another country or trust police that is possibly to be corrup
states v. Contento-Pachon
Burden of proof
Most Jurisdiction
MPC
Because this is an affirmative

defense, the defendant bears both
the burden of production and the
burden of persuasion.
Reasonable
firmness
Allo
burden to the prosecution so as t
consistent with other defenses, s
defense, which are typically the r
the prosecution to disprove.
Som
allocate the burden of proof to th
because duress would negate the
mens rea of "malice"
The dilemma: on the one hand, duress is closely related to me

on the other hand it is an affirmative defense.
Standard of the threat

Extent of the threat
Some J
The other J
The threat should be one of

death or serious injury.
No specific requirement; lean solely

functional criterial of reasonable fir
Object of the threat

o
Some J
The other
Defendant or a close family

relation
Any third
party
Interpretation of the standard
Objective test
Subjective test
Hybrid option MPC and man
Whether a
reasonable person
would have
succumbed to the
threat
Whether succumbing
was reasonable from
the perspective of the
defendant.
Was it objectively reasonab

in similar circumstances as
to succumb to the threat. I
wealth v. Demarco, Penn co
consider the defendant's "g

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verifiable" mental disability
Requirement to select the lesser of 2 evils?

Jurisdictions splits.
As a defense
to murder
So
me courts interpreted the duress
defense as a justification and have
required that the defendant select the
lesser evil. [will use a more objective
test to appraise the defendant's
conduct]
Re
quirement of selecting the lesser of 2
evils is satisfied if defendant saves
someone's life by agreeing to commit a
robbery.
view is duress is an e
the defendant's auto
there is no requireme
the better of the 2 op
is more individualized
subjective test to app
conduct. [like the hy
v. Demarco]
Duress and necessity

In necessity, the defendant commits the crime in order to alle
threat coming from either the natural environment or a threat coming fro
individual.
In duress, the defendant commits the crime in order to implem
consummate the will of the coercer.
Battered women syndrome and duress
Under subjective or hybrid test, the battered women syndrom
likely to be considered in deciding duress.
But under objective test. The argument was not recognized b
Whether duress can be applied as a defense for murder?
J1
J2
Like necessity, duress is usually unavailable as a defense to

murder. But duress can provide a defense to murder on a
felony-murder theory by negating the underlying felony.
MPC: de
duress c
to murd
Rationale
Ad hoc limitation designed to blunt the doctrines powe
Duress defense could, in theory, excuse all sorts of hor
criminality
o
Criminals could use the duress defense as a strategic p
escape liability
o
The law demands that the target of the coercion sacrifi
rather than commit a murder
Duress can not be applied as a partial defense.
Excuse is an On-Off switch. If the defendant acts unreason
duress, the excuse would not exist, and defendant should be convicted w
defense of duress.
But it could be considered as an mitigating factor in sentencin
o
o

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Recklessness
in creating the
situation of
duress
Duress is related to innocent instrumentality rule.

One way of demonstrating that the instrumentality is truly no
is for the prosecution to argue that the physical perpetrator was acting un
Jurisdiction splits
Common law
MPC
Duress defense is not available if

the defendant is reckless or
otherwise culpable in creating the
very situation that gave rise to the
duress.
Recklessness in creating the situat

establish the defendant's mens rea
recklessness; negligence in creatin
situation will establish the defenda
for a crime of negligence
Rationale
The person's first act is free, thus make his still culpabl
Intoxication
Overview
2 types of intoxication
Voluntary intoxication involves a defendant who willingly
inbibes an intoxicating substance.
o
Involuntary intoxication involves a defendant who is drugged
without her knowledge.
At old common law, judges were often unsympathetic to drunken
defendants. So neither voluntary nor involuntary intoxication is a valid
defense.
Under modern law, intoxication is an excuse.
o
Voluntary
intoxication
o
o
Jurisdiction split
MPC approach
failure of proof defense.
Intoxication is allowed as a defense if it negates

a required mental element for the offense.
Partial defense:
Sometimes intoxication generates complete

exoneration; sometimes it is only a partial defense. Because
the jury could be asked to consider convicting the defendant of
a lesser crime with a lower mental state that is not negated by
the intoxication.
Exception for recklessness crime:
MPC 2.08 prevents voluntary intoxication from

being a defense to crimes of recklessness.
J1: specific/general intent test.
Affirmative defense
requirements
Defendants could assert voluntary intoxication

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Involuntary
intoxication
for specific intent crimes, but voluntary intoxication is no

defense to general intent crimes.
The intoxication must have a causal connection

with the commission of the prohibited act.
o
Rationale:
Intoxication could interfere with the formation of

higher mental status that are required in "specific intent"
crimes.
J2: No defense
o
Some jurisdictions abandoned the defense of voluntary
intoxication altogether.
o
Rationale:
An action is free when it's free in it's causes. All

other defenses are caused by external environment.
Time-shifting Argument
HYPO: people with a history of drunk driving and once injured
a lot of pedestrians. Then the person get terribly drunk again and killed a
pedestrian. The prosecutor argue that he was reckless in his decision to
start drinking.
To prevail in this argument, the prosecutor would need to
prove that the defendant was aware of what happens when he drinks.
Involuntary intoxication is an affirmative defense.
Requirements for defense.
J1/2: There must be a causal connection between the actor's
involuntary intoxication and the commission of the prohibited act.
MPC: an actor is excused if he "lacks substantial capacity
either to appreciate its criminality [wrongfulness] or to conform his
conduct to the requirements of the law".
Unpredictable intoxication
Defendant's voluntary decision to imbibe a substance that
has an unpredictable effect
Some courts treat this as involuntary intoxication
o
E.g. prescription medications, over-the-counter cough
remedies, and insulin
Defendant may be acquitted if :
o
Jury is convinced that the criminal act was caused by
the intoxication, and
o
Defendant was unaware of substance's intoxication
properties.
Court would negate an intoxication effect, If the defendant
knowingly took substance that would lead to intoxication, but
the intoxication effect is amplified for unpredictable reason.
Intoxication for dehydration
Court strike down this argument, because one can not raise
intoxication because not doing something (drinking water).
Insanity

Huichuan Xu
Overview
Competing standards have been used to determine whether a crimin

was too insane to warrant criminal punishment:
o
The cognitive test introduced in M'Naghten
o
The irresistible impulse or volition test;
o
Product test
o
The MPC's substantial capacity test.
With each of the standards, the defendant makes a formal plea of no
guilty by reason of insanity; the fact finder then decides whether the defendan
insanity is sufficient to negate her culpability for committing the crime.
Burden of proof
o
in applying the sanity defense, the accused is presumed sane;
and therefore, the burden is initially on the defendant to introduce evidenc
creating a reasonable doubt of his insanity.
o
But once the defendant has overcome this initial burden, it is t
State's burden to present sufficient evidence to prove the defendant's san
beyond a reasonable doubt.
If acquitted the defendant is committed to psychiatric care.
Norway has adopted a pure medical model for legal insanity
o
Under this scheme, a defendant is not guilty by reason of
insanity if they were psychotic during the commission of the crime.
o
Lack of any causal connection between the mental illness and
the commission of the crime; determination is purely medical
But in US law, the causation between mental incapacity

and the commit of crime is always needed.
o
The Norwigian approach is more a utilitarian view, because it
would be better for the society to put insane person into hospital rather th
in prison. While the US system is more of a retribuvism view. One criticism
the Norwegian approach is that courts would not be able to perform their
judiciary function, because everything was decided by the expert.
Cognitive test
Irresistible
impulse test
2 prong test
at the time of committing the act, the party accused was
laboring under such a defect or reason, from disease of the mind, as
o
not to know the nature and quality of the act he
was doing [the defendant believes she is committing one action but
actually committing another], or
o
if he did know it, that he did not know that what
was doing was wrong [the defendant correctly perceives the action
but is unaware that it is wrongful].
Add another prong to the Cognitive test:

a defendant is legally insane if he meets the M'Naghten stand
or if he suffers from a volitional defect that prevents him from complyin
with the demands of the law.
o
Volitional component is met when the actor is unable to
control his behavior and comply with the law.
o
O: this is actually a control test. The defendant has to
prove he can not control his act because of his mental disorder.
o
The key here is "irresistible". But the inquiry of existen

Huichuan Xu
product test
(Durham test)
The MPC
code:
substantial
capacity test
The definition
of
wrongfulness
of irresistibleness is really hard. This make the test controversial.

Identifying irresistible impulse. Pollard v. United States
Irresistible impulse as recognized by the courts is an impulse
induced by, and growing out of, some mental disease affecting the
volition, as distinguished from the perceptive power, so that the person
afflicted, while able to understand the nature and consequences of the act
charged against him and to perceive that it is wrong, is unable to resist th
impulse to do it.
Anger, greed, passion and emotional insanity does not relieve
liability.
O: the test here is that the defendant could not have done
otherwise. Like a blooming flower.
The test is whether the defendant's act was a product of mental

disease and defect. ----ask for a causal relationship between mental disease or
defect and the act.
This test broadly encompasses the cognitive test and volitional test.
The idea is that there is a cognitive defect, and such defect is the product men
disease and defect.
This test is extremely problematic. But for causation did not offer any
help to decide proximate causation.
"a person is not responsible for criminal conduct if at the time of suc
conduct as a result of mental disease or defect he lacks the substantial
capacity either to appreciate [tracks cognitive test] the criminality (or
wrongfulness) of his conduct or to conform [tracks volitional test] his cond
to the requirements of the law."
Substantial capacity: remove the all-or-nothing nature of th

tests above, indicates that the cognitive defect need not be total.
O: this is an answer to the problem of interpreting irresistibility

as long as the defendant lacks substantial capacity to conform his conduc
then insanity can be applied.
Take out "know the nature and quality of the act he wa

doing": prong 2 of M'Naghten test is broad enough to include the prong 1
Squeezing neck while thinking he was squeezing a lemon could be include
in the category of "unable to know what he is doing is wrong". MPC clarifi
the redundancy of Cognitive test, and distilled out what we are cared abou
Change "know" to "appreciate wrongfulness": emphasize

that cognitive defect need not to be total.
This is a more workable test for jury than cognitive test and volitiona
test.
Jurisdiction splits on whether the wrongfulness in cognitive (irresistib

test indicates morally wrongfulness or legal wrongfulness.
Subjective standard
State use
Whether the act was able
moral terms understand that his actions
Objective standard
Whether the actor was abl

to understand that his acti

Huichuan Xu
violated his own personal moral violated society's view of
code.
morality.
Legal terms \
Diminished
capacity
The legally wrong approac

can only be objective.
MPC takes no positions on that issue. Include 2 options in

provisions. Legislature can use the term of "criminality" or "wrongfulness"
o
Criminality refers to a legal wrongfulness.
o
Wrongfulness refers to moral concept.
Deific decree exception
An exception to the objective interpretation of moral
wrongfulness.
If a defendant, suffered from mental defect, argues that his
actions were commanded by God, courts sometimes apply a subjective or
individual standard of moral wrongfulness.
The deific decree defense is a way of smuggling in a limited
volitional component in jurisdictions that use a pure cognitive test under
M'Naghten. O: this case is similar to duress.
The diminished capacity doctrine allows a defendant who does not

plead insanity to still introduce evidence of mental illness to negate the mens r
that the prosecution must establish as part of its burden.
o
Better to be understood as a rule of evidence to allow D to
present expert testimony regarding mental illness or abnormalities that
might negate the prosecutor's case (because of the defendant's mental
defect, he can not form the mental state needed for the crime committed)
Some jurisdictions have abrogated the rule by statute to prevent
defendants from introducing psychiatric evidence unless they are pleading not
guilty by reason of insanity.
o
Rationale Clark v. Arizona
o
admission of these evidence could mislead juror.
o
The segregation make sense because the outcome wou
be different. If one is decided to be insane, the defendant would be p
into hospital. But if the defendant use evidence of insanity and
successfully negates the mens rea, he would be acquitted directly.
o
The burden of persuation of mens rea is on the govt sid
allowing this evidence would make too much acquittals.
some states choose a totally different approach and disallow the
insanity defense entirely, only allow to negate mens rea.
If the mental illness negates the required mental element of the
offense, the defendant's criminal liability is either downgraded to a lower crime
extinguished altogether.

Criminal Ohlin Outline 2016 Spring

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Criminal Ohlin 2016 Spring

Willed bodily movement

Affirmative defense of unconscious action

MPC: failure to proof defense

MPC: possession is an act if the possessor knowingly

Relationship between defendant and victim

Use the ambiguous word "intent"

Criminal Ohlin 2016 Spring

General intent only require the intent to act itself.

Defendant's consciously disregard of an substantial and

Consciously disregard: subjective test, need to

Criminal Ohlin 2016 Spring

Substantial risk: Objective test: there is a strong

Defendant's taking of a substantial and unjustified risk

Most jurisdictions require a higher standard of

Absolute liability: no affirmative defense. (this

Strict liability: affirmative defense available

Regular culpability offenses.

Criminal Ohlin 2016 Spring

Legal mistake might be relevant only if

Additional defense: some jurisdiction recognize an

A defendant can also argue the law was secret or not

Ask whether there is any causal connection, but-for.

"substantial factor" test: whether the defendant's

"Acceleration theory": whether the defendant'

"Likelihood of survival" theory: whether

Intervening agent's negligence will not break the

When intervening agent act

Criminal Ohlin 2016 Spring

If the intervening agent is

If the intervening agent's act in

O: the best way to apply the test is

Mainly based the analysis on fairness

Drag race & Russian roulette

Scope of the game: if death happens after the

Murder requires the killing of another human being

Express malice means the actor desired the

Implied malice involves reckless killing that

First degree and

Most jurisdiction sorted out 2 categories of murder,

J1: First-degree murder for premeditation and

J2: first-degree murder for special

Many jurisdiction require both premeditation and

Criminal Ohlin 2016 Spring

Both prior planning and consideration of

But consideration of how to commit the

Jurisdictions split on whether to allow

MPC does not use the word malice. Simply define

O: advantage of this approach is to leave the

Disadvantage is that this will lead to

In certain situation, murder can be downgraded to

J1: when the killing was performed with

J2: when killing is performed with extreme

The effect of Provocation

Criminal Ohlin 2016 Spring

him to act for the moment from passion rather than

Extreme assault on the defendant;

Illegal arrest of the defendant;

Injury or serious abuse of close

Sudden discovery of spousal

Some courts held mere words never

Some held words can be enough if