CRIMINAL LAW

INTRODUCTION
A. Criminal Law Compared to Torts
1. Criminal law involves public law.
a. Although the victim may be a private party, a crime causes a social harm.
b. Social harm: the injury suffered involves a breach and violation of the public rights and duties,
due to the whole community, considered as a community in its social aggregate capacity. (This is
why the prosecutor is a public attorney)
2. A person convicted of a crime is punished.
a. Punishment lies within the conviction itself not the hardship imposed as a result. There is a
societal condemnation and stigma that accompanies the conviction.
3. Crime: an act or omission and its accompanying state of mind which, if duly shown to have taken
place, will incur a formal and solemn pronouncement of the moral condemnation of the community
4. Felony vs. Misdemeanor
a. Felony: an offense punishable by death or imprisonment in a state prison
b. Misdemeanor: an offense for which the max punishment is a monetary fine, incarceration in a
local jail, or both.
B. SUBSTANTIVE CRIMES (BURDENS OF PROOF)
1. Putting the issues in procedural context
a. Among the rules that guide the fact-finding process are those establishing two types of burdens
of proof
(i) Burden of Production: Burden of going forward with evidence
(ii) Burden of Persuasion
b. Both burdens of proof may fall on a single party, or one may have the burden of production
while the other has the burden of persuasion.
2. Burden of Production
a. Nature of the Burden
(i) Prior to trial the π must file a doc (essential elements of offenses and basic facts π intends to
prove) with the ct that indicates the crimes it believes the ∆ has committed.
(ii) The ∆ is sometimes required to provide advance notice to the π of defenses intended to be
asserted at trial
(iii)The rule establishing the burden of production identifies the party on whom the initial
obligation is placed to introduce evidence at trial to support the particular legal claim in
question.
b. Who Has the Burden?
(i) The π has the burden of production regarding each element of the crime charged.
(ii) The ∆ has the burden of producing evidence pertaining to affirmative defenses.
c. How Great is the Burden?
(i) The π must produce enough evidence that a rational trier of fact may fairly determine that the
elements of the crime have been proven beyond a reasonable doubt.
(ii) The ∆’s burden differs on jurisdiction as to how much evidence is required.
d. Effect of Failing to Meet the Burden

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 (i) The trial judge (NOT the jury) decides whether the parties have met their burdens of
production.
(ii) If π fails to prove any element beyond a reasonable doubt, ∆ is entitled to a directed
verdict of acquittal.
(iii) If ∆ fails to meet burden regarding affirmative defenses, the judge will not instruct jury
on the law pertaining to the defense, and the jury won’t consider it.
3. Burden of Persuasion
a. Nature of the Burden
(i) Once party satisfies Burden of Production, it’s up to the jury to decide whose factual claims
are more persuasive.
(ii) Rules are needed to instruct it on how to way conflicting evidence
(iii)The party who has the burden of persuasion bears the risk of failing to convince the jury that
her factual claim is true.
b. Who Has the Burden?
(i) In re Winship: The π must persuade the fact finder beyond a reasonable doubt of “every fact
necessary to constitute the crime charged. (The Winship Doctrine)
(ii) “It is better that ten guilty persons escape than that one innocent suffer”
(iii) Post-Patterson Case Law
(a) A π must prove every element of an offense beyond a reasonable doubt, except in certain
limited circumstances.
(b) Limited Circumstance: when a legislature allocates the ∆ the burden of persuasion
regarding facts not formally identified as elements of the offense charged.
c. How Great is the Burden?
(i) Π has to prove beyond a reasonable doubt.
(ii) Beyond a reasonable doubt: the state of the case leaves the minds of the juror in that
condition that they cannot say they feel an abiding conviction, to a moral certainty, of the
truth of the charge. (a settled and fixed conviction)
(iii) Who the burden rests on depends on Jx. It typically has to be proven by a preponderance of
the evidence.
d. Effect of Failing to Meet the Burden
(i) If π fails to prove each element beyond a reasonable doubt, the ∆ must be acquitted.
(ii) If the judge believes that reasonable minds can differ and permits the case to go to the jury,
then the jury must acquit if it possesses a reasonable doubt regarding one or more elements of
the offense charged.
(iii) If no other defenses have been proven, then the ∆ may be properly convicted. If not,
acquittal.
C. SUBSTANTIVE DEFENSES
1. Defenses in Context
a. The ∆ may seek to raise one or more defenses, which will result in acquittal if proven.
b. The leg may allocate to the defendant the burden of persuasion regarding defenses.
2. Failure-of-Proof Defenses
a. The ∆ introduces evidence at his trial that demonstrates that the prosecution has failed to prove
an essential element of the offense charged. (ex. Mistake of fact)

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 b. The π must shoulder the burden of disproving beyond a reasonable doubt a ∆’s failure of proof
claim.
3. Justification Defenses
a. Defines conduct otherwise criminal, which under the circumstances is socially acceptable and
which deserves neither criminal liability nor even censure.
b. An act that is right, not wrong. (ex. Self-defense)
4. Excuse Defenses
a. Differs from justification in that it centers on the actor NOT the act.
b. Shows that the actor is not morally culpable. (ex. Insanity)
5. Specialized Defenses (Offense Modifications)
a. Crime specific defenses.
b. They authorize acquittal of a ∆, even though his conduct satisfies the elements of the offense,
when the underlying purpose for prohibiting the conduct is negated by the conditions that
constitute the defense.
6. Extrinsic Defenses (Non-exculpatory Defenses)
a. Bar ∆’s conviction based on public policy factors. (ex. statute of limitations, diplomatic
immunity, incompetency to stand trial)
D. SOURCES OF CRIMINAL LAW
1. Origins of the Criminal Law
a. Common Law (judge made law)
(i) American crim law = English heritage, judicial origin
(ii) Def of crime and rules of criminal responsibility determined by courts
(iii) Reworked by American cts to meet local needs
b. Criminal Statutes
(i) During enlightenment period (18th-19th centuries) shift locus of law making from courts to
legislative bodies. Crimes should be defined by institution more representative of the people
(ii) Today legislature is pre-eminent lawmaking body in criminal law (primary lawmaking
authority)
2. Modern Role of the Common Law
a. Reception Statutes
(i) Most states abolished common law crimes. (conduct only criminal if defines by statute or
legislative enactment) MAJORITY
(ii) MINORITY: reception statutes- every act and omission which is an offense at common law
and for which no punishment is prescribed by the state penal code, may be prosecuted and
punished for an offense at common law”
(iii)Offense become an unwritten part of state criminal law and defined as they existed at time of
reception
(iv) Though common law crimes exist, statutes prohibiting the same behavior usually supersede
them. A common law prosecution is not possible unless there is a true gap in the statutory
system.
b. Statutory Interpretation
(i) When a statute contains a common law meaning, the presumption is that such a term retains
its common law meaning absent a statutory definition to the contrary.

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 (ii) Common law can be used to fill gaps in the penal code. (if a common law principle is
replaced by federal law that does not address a certain aspect, then in the absence of
legislative history showing congress intent to eliminate it, the common law aspect will still
apply.
3. Model Penal Code
a. Drafted in 1952 by American Law Institute to inspire reformative spirit among state legislatures
b. Code containing gen principles of criminal responsibility, def of specific offenses, and
sentencing provisions.
c. Code IS NOT LAW
E. Procedure
1. π Case-in-Chief
2. ∆ Case-in-Chief
3. π Rebuttal

II. THE ACT (ACTUS REUS)

A. General Principles
1. The actus reus (AR) of an offense consists of (a) a voluntary act (b) that causes (c) a social harm.
2. Punish thoughts?
a. No one is punishable for his or her thoughts.
b. It’s wrong to punish people for unacted-upon intentions.
B. VOLUNTARY ACTS
1. General Principles
a. A person is not guilty for their crimes unless it includes a voluntary act. (act and voluntary)
b. The “Act”
(i) An act is a bodily movement or muscular contraction.
(ii) It requires physical but not necessarily visible behavior.
(a) There can be bodily movement but no act. (ex. A grabs B’s arm and hits C with it)
(b) Act does not apply to the results of a person’s bodily movement. (ex. D intends to kill V
and puts dynamite around V’s house. D detonates killing V. The positioning of the
dynamite is the act not the killing.)
(c) To be an “act” the muscular contraction must itself be voluntarily performed. An
involuntary act is really no act at all.
c. “Voluntary”
(i) Broad Meaning: In Context of Defenses
(a) “Voluntary” and “Involuntary” are often used in discussing defenses to express the
general conclusion that the ∆ possessed lacked sufficient free will to be blamed for
conduct.
(ii) Narrow Meaning: In Context of Actus Reus
(a) A voluntary act involves the human mind. An involuntary act involves the human brain
without the aid of the mind.
(b) Involuntary acts: reflexive actions, spasms, seizures, and bodily movements while asleep.
(c) This is different than not noticing something. (Lighting a cigarette, driving, etc.)
(iii) Voluntariness at its edges

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 (a) Hypnotism: Hypnotism is deemed involuntary. This is different from a “weak-willed”
person NOT under hypnosis who blindly submits.
(b) Multiple Personality Disorder: “We will not begin to parcel criminal accountability out
among the various inhabitants of the mind.”
(iv) Voluntary Act Requirement: Rationale
(a) If the threat of the criminal sanction cannot deter, its use is one rational way to segregate
involuntary actors.
(b) It’s a method of social control. (ex. People take medication to prevent seizures)
(c) It’s linked to retributivism. (The view that the critical distinction between criminal law
and other systems of confinement is that the criminal sanction carries with it something
more—the stigmatization of moral blameworthiness.)
(1) Punishment should be given to those who deserve it.
(v) Burden of Proof
(a) Courts frequently describe involuntariness as a defense, but it really isn’t.
(b) A voluntary act is a prerequisite to criminal responsibility. (It is an element of every
criminal defense.)
(vi) The Issue of Time Framing
(a) The π does not need to show that EVERY act, or even the LAST act, was voluntary to
establish criminal liability. It is sufficient that the ∆’s conduct included a voluntary act.
(b) Courts should focus on the relevant conduct not any conduct.
(1) The conduct that was the requisite for the mens rea
(2) Actual and proximate cause of the social harm
2. Supposed (But not real) Exceptions to the Requirement
a. Poorly Drafted Statutes
(i) If a statute does not require a voluntary act, a court will typically interpret the law to require
one as opposed to reading it literally.
b. Status Offenses
(i) Status offenses are typically invalidated (ex. Addicts go to jail statutes)
(ii) They don’t punish conduct and violate the 8th Amendment (cruel and unusual punish)
c. Crimes of Possession
(i) All states prohibit the possession of contraband or criminal instrumentalities.
(ii) Do not require ∆ to act, just passive possession
(iii)Requires:
(a) Proof that the ∆ knowingly procured or received the contraband
(b) And that ∆ failed to dispossess himself once that knowledge was received.
(1) Must have sufficient time to terminate the possession
3. Constitutional Law
a. Robinson v. California
(i) Facts: Statute prohibiting a person to be addicted to the use of narcotics.
(ii) Holding: SCOTUS ruled that the statute violated the 8A and 14A.
(iii)Reasoning: Made the illness of drug addiction an offense. Although addiction constitutes a
danger to society, it is irrational and indecent to punish them for their sickness.
b. Powell v. Texas

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 (i) Facts: Texas statute that prohibited getting drunk of being found in a state of intoxication in a
public place. ∆ said alcoholism was a sickness.
(ii) Holding/Reasoning: Upheld because he was arrested for being in a public place not for being
sick.
c. Current Law: Powell in Light of Robinson
(i) Powell did not overrule Robinson
(ii) These two cases stand for the proposition that a state may not constitutionally punish a
person for her thoughts alone or for her propensity to commit a crime. Conduct is required.
4. Model Penal Code
a. General Principles
(i) § 2.01(1): No person may be convicted of a crime in the absence of conduct that includes a
voluntary act or the omission to perform an act of which he is physically capable
(ii) § 1.12(1): The prosecution has the responsibility to persuade the fact finder beyond a
reasonable doubt of the existence of a voluntary act
(iii)§1.13(2): An act is a bodily movement that is either voluntary or involuntary
(iv) Voluntary is defined by looking at the involuntary acts.
(a) § 2.01(2): reflexes, convulsions, conduct during unconsciousness, sleep, or due to
hypnosis; and generally, any conduct that is not a product of the effort or determination
of the actor, either conscious or habitual.
(v) § 2.01(4): Possession is an act if the possessor either knowingly obtained the object or knew
she was in control of it for sufficient time to have been able to terminate possession
C. INVOLUNTARY ACTS DUE TO INTOXICATION
1. Voluntary Intoxication
a. It is not a defense if the condition was itself brought on by voluntary consumption of drugs or
alcohol
b. Courts sometimes state that evidence of unconsciousness produced by voluntary intoxication
may be introduced by a ∆ when his defense is that he did not physically accomplish the act of
which he is accused.
2. Involuntary Intoxication
a. Intoxication is involuntary if the actor is not to blame for becoming intoxicated.
b. When is it involuntary?
(i) If the person is coerced to ingest an intoxicant
(ii) If it is ingested by innocent mistake
(iii)If the actor becomes unexpectedly intoxicated from medication
(a) Exception: The actor purposely takes more than the prescribed amount
(iv) Pathological Intoxication: A temporary psychotic reaction, often manifested by violence,
which is triggered by consumption of alcohol by a person with a pre-disposed mental or
physical condition. ONLY applies if actor did not know he was susceptible to such condition.
c. Results in acquittal in all the circumstances in which voluntary intoxication is a defense
3. Model Penal Code
a. Affirmative defense based on intoxication if:
(i) The actor suffered from pathological intoxication or intoxication that was not self-induced.
(ii) The actor’s condition qualifies under the ALI’s test of insanity

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 b. If defense met, it is of insanity not involuntary intoxication.
c. Insanity can be claimed if at the time of conduct, he suffered from a mental disease caused by
long-term alcohol or drug use.
D. OMISSIONS
1. General Rule
a. Not every moral obligation to act creates a legal duty.
b. RULE: Subject to a few limited exceptions, a person has no criminal law duty to act to prevent
harm to another, even if the person imperiled may lose her life in the absence of assistance.
2. Criticisms of the General Rule
a. Isn’t utilitarian.
3. Defense of the General Rule
a. Adding “not-doings” to litigation would create a huge backlog of cases.
b. Needed for line drawing. Should an entire group of people be held criminally liable?
c. Liability for non action would create mens rea issues.
d. How does one go about figuring out causation?
4. Exceptions to the No-Liability Rule
a. Common Law Duty to Act
(i) A ∆’s omission of a common law duty to act, assuming that she was physically capable of
performing the act, serves as a legal sub for voluntary act. (Remaining elements of mens rea
and causation need to be proven still)
(ii) When?
(a) Status Relationship: A status relationship creates a legal common law duty to act.
(Founded on the dependence of one party on the other)
(1) Parent to minor children
(2) Married couples to one another
(3) Master to their servants
(b) Contractual Obligation
(1) Duty may be created by implied or express contract.
 Ex. Breaching an agreement to house, feed, and provide medical care to an infirm
stranger, or to care for ones mentally and physically disabled parent.
(c) Omissions Following an Act
(1) Creation of a Risk
 A person who wrongfully harms another or another’s property, or who wrongfully
places a person or her property in jeopardy of harm, has a common law duty t aid
the injured or endangered party.
(2) Voluntary Assistance
 One who voluntarily commences assistance to another in jeopardy has a duty to
continue to provide aid, at least if a subsequent omission would put the victim in a
worse position than if the actor had not initiated help.
b. Statutory Duty (Including “Bad Samaritan Laws”)
(i) A duty to act can be statutorily imposed. (ex. Person must pay taxes)
(ii) Bad Samaritan law: Offense for a person not to come to the aid of a stranger in peril under
specific circumstances
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 5. Model Penal Code: Same as Common Law
6. Medical Omissions
a. The Barber Approach
(i) Facts: the ∆’s were physicians who were charged with the murder of their patient. After they
received permission from the patient’s family, the doctor caused life-sustaining equipment to
be turned off. Patient eventually died.
(ii) Holding/Rule: The physicians’ conduct amounted to an omission. The disconnection of the
devices that fed and hydrated was tantamount to withholding medical treatment.
(iii)Did the doctors’ withhold a benefit or did they cause his death?

III. CAUSATION
A. There has to be both actual cause and proximate cause for a person to be criminally liable.
B. Actual Cause
1. “But-for” (Sine Qua Non) Test
a. There can be no criminal liability for resulting social harm unless it can be shown that the ∆’s
conduct was a cause in fact of the prohibited result.
b. BUT FOR ∆’s voluntary acts, would the social harm have occurred when it did.
2. Causes vs. Conditions
a. Conditions are normal events or circumstances that, although necessary for the result to occur, do
not positively contribute to it. (physics, hearth muscle stopping, birth)
3. Special Actual Cause Problems
a. Confusing Causation with Mens Rea
(i) Actual cause serves only to eliminate candidates for responsibility. Proximate cause
establishes responsibility.
(ii) A culpable state of mind has nothing to do with Causation.
b. Multiple Actual Causes
(i) Accelerating a Result
(a) Oxendine: ∆ was entitled to a directed verdict of acquittal because the prosecutor failed to
prove beyond a reasonable doubt that ∆ hastened the death. Therefore, there was no proof
that ∆ was the actual cause of death.
(ii) Concurrent Sufficient Causes
(a) When each act alone is sufficient to cause the result that occurred when it did.
(b) This is the substantial factor test and both actors will be the actual cause.
(iii)Obstructed Cause
(a) When someone inflicts a non-mortal wound and then someone or something (lightning)
kill the person after.
C. Proximate Cause
1. An act that is a direct cause of social harm is also a proximate cause of it.
2. Intervening Causes
a. Definition: an independent force that operates in producing social harm, but which only cones
into play AFTER the ∆’s voluntary act has been committed or his omission has occurred.

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 b. Question: When is the intervening conduct sufficiently out of the ordinary that it no longer seems
fair to say that the social harm was caused by the ∆’s conduct.
c. Factors
(i) De Minimis Contribution to the Social Harm
(a) Sometimes a ∆’s causal responsibility for ensuing harm is exceptionally insubstantial in
comparison to that of an intervening cause
(ii) Foreseeability
(a) Foreseeability is a matter of considerable significance in proximate cause.
(b) If it is unforeseeable then the intervening cause is superseding.
(c) Responsive intervening cause: an act that occurs in reaction or response to the ∆’s prior
wrongful conduct. These do not generally relieve the initial wrongdoer of criminal
responsibility unless the response was not only unforeseeable but highly bizarre.
(d) Coincidental (Independent) Intervening Causes: a force that does not occur in response to
the initial wrongdoer’s conduct. The only relationship between the ∆’s conduct and the
intervening cause is that the ∆ placed the victim in a situation where the intervening
cause could independently act upon him.
(e) The ∆’s mens rea
3. Model Penal Code
a. Actual cause: Use the but for test.
(i) No substantial factor. Rephrase concurrent sufficient causes as “but for ∆1 and ∆2 act, the
result would have occurred when it did.
b. Proximate cause: Don’t follow common law. The jury just ahs to reach a commonsense or just
result.

IV. Result and Attendant Circumstances

A. SOCIAL HARM
1. Overview
a. To be guilty of an offense, a person must do more than think bad thoughts.
b. They must be guilty of wrongdoing. (Voluntary act is the doing, the harm is the wrong)
c. Utilitarian view: The propensity to cause future harm could result in crim liability.
d. Retributivist view: There has to be actual harm for there to be punishment.
2. Definition: Society is wronged when an actor invades any socially recognized interest and
diminishes its value. Specifically, social harm is the negation, endangering, or destruction of an
individual, group, or state interest which was deemed socially valuable.
3. Finding the “Social Harm” Element in a Statute
a. The definition of the offense will identify the proscribed social harm.
b. Example: murder: the killing of a human being by another human being with malice
aforethought. (bold is the social harm and italics is the mens rea)
B. Dividing Social Harm into Sub-Elements
1. Conduct
(i) There are conduct crimes that require no result in the statute.
2. Result
(i) An offense may be defined in terms of a prohibited result.

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 (ii) It does not matter how the result occurs in result crime statutes.
(iii)Some statutes contain both conduct and result.
3. Attendant Circumstances
(i) In order for any offense to occur, certain facts or conditions must be present when the actor
performs the prohibited conduct and/or causes the prohibited result that constitutes the social
harm of the offense.
(ii) The crime does not occur unless the specified attendant circumstances are present.

V. Mental State (Mens Rea)

A. Definition of Mens Rea
1. Broad Meaning
a. Broadly, mens rea is defined as a general immorality of motive, vicious will, or an evil-meaning
mind.
b. Suggests a general notion of moral blameworthiness.
2. Narrow Meaning
a. Narrowly, mens rea is defined as the particular mental state provided for in the definition of the
offense.
b. A person may possess moral blameworthiness and yet lack the requisite elemental mens rea.
B. COMMON LAW
1. Frequently Used Mens Rea Terms
a. “INTENTIONALLY” = encompasses purpose and knowledge to a virtual certainty
(i) It is his desire to cause the social harm
(ii) He acts with knowledge that the social harm is virtually certain to occur as a result of his
conduct
(iii)Transferred Intent: We attribute liability to a ∆ who, intending to kill (or injure) one person,
accidentally kills or injures another person instead. Transfers the actor’s state of mind and the
intended victim.
(iv) This is not the same as motive. Motive is relevant in criminal law.
(a) Some offenses by definition require proof of a specific motive.
(b) Motive is relevant to claims of defense
(c) Motive is relevant at the sentencing phase of a crim procedure.
b. “KNOWINGLY” OR “WITH KNOWLEDGE”
(i) A person has knowledge of a material fact if he
(a) Is aware of the fact OR
(b) Correctly believes that the fact exists
(ii) Most jx also permit a finding of knowledge of an AC when the actor is guilty of willful
blindness. It exists when the actor:
(a) Is aware of a high probability of the existence of the fact in question; and
(b) Deliberately fails to investigate in order to avoid confirmation of the fact (plausible
deniability).
c. “WILLFULLY”

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 (i) In most circumstances, an intentional wrongdoer acts with a bad purpose or evil motive, and
with knowledge that he is violating the law, so it does not matter which meaning of willful is
applied.
d. “NEGLIGENCE”
(i) A person’s conduct is negligent if it constitutes a deviation from the standard of care that a
reasonable person would have observed in the actor’s situation.
(ii) Criminal negligence is conduct that represents GROSS deviation from the standard of
reasonable care. A person is criminally negligent if he takes a substantial and unjustifiable
risk of causing the social harm that constitutes the offense charged.
e. “RECKLESSNESS”
(i) Different from negligence
(ii) Criminal recklessness requires proof that the actor disregarded a substantial and unjustifiable
risk of which he was aware.
f. “MALICE”
(i) A person acts with malice if he intentionally or recklessly causes the social harm prohibited
by the offense. (Not “wickedness” Cunningham)
2. SPECIFIC INTENT VS. GENERAL INTENT
a. An offense is specific intent if the crime requires proof that the actor’s conscious object, or
purpose, is to cause the social harm set out in the definition of the offense.
(i) Intent to commit a future act
(ii) Proof of asocial motive
(iii)Proof of the actor’s awareness of an attendant circumstance
b. A crime is general intent in nature if the actor can be convicted upon proof of any lesser state of
mind, such as when he causes the harm knowingly, recklessly, or negatively.
(i) No particular expressed mens rea in the statute.
C. MODEL PENAL CODE

1. A person may not be convicted of an offense unless “he acted purposely, knowingly, recklessly
or negligently, as the law may require, with respect to each material element of the offense.
(aside from violations)
a. “Purposely”: Conscious object to engage in conduct of that nature or to cause such a result.
Awareness or believes/hopes that attendant circumstances exist.
b. “Knowingly”: A result is knowingly caused if the actor is aware that it is practiacally certain
that his conduct will cause such a result. Awareness required for AC and conduct.
c. “Recklessly”: Refer to chart
d. “Negligently”: Refer to chart
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 2. No distinction between general and specific intent.
3. § 2.08(2): Intoxication: 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.
4. Statutory Interpretation
a. A court will interpret such culpability provision as applying to EVERY material element of
the offense, unless a contrary purpose plainly appears. (EVERYTHING TO THE RIGHT)
b. Default if there is no mens rea for a material element is RECKLESSNESS.
D. STRICT LIABILITY
1. Common Law
a. A strict liability offense does not contain a mens rea requirement regarding one or more elements
of the actus reus.
b. Factors that determine whether the silence in the statute = strict liability:
(i) The statutory crime is not derived from the common law
(ii) There is an evident leg policy that would be undermined by a mens rea requirement
(iii)The standard imposed by the statute is reasonable and adherence thereto properly expected of
a person
(iv) The penalty for violation for the statute is small
(v) The convection does not gravely besmirch
2. Model Penal Code
a. No conviction may be obtained unless the prosecution proves some form of culpability. Only
violations do not require a mens rea.
b. Violation: an offense that cannot result in imprisonment or probation, but may result in a fine.
E. BURDEN OF PROOF DEFENSES
1. MISTAKE OF FACT
a. First see what the nature of the crime is. (Strict liability, Specific intent, or General intent)
(i) Strict-Liability Offenses
(ii) Specific Intent Offenses
(iii)General Intent Offenses
2. MISTAKE OF LAW

VI. HOMICIDE
A. Common Law
1. MURDER
a. The killing of a human being by another human being with malice aforethought.
b. A person who kills another acts with “malice” if she possesses any one of four states of mind:
(1) the intention to kill a human being; (2) the intention to inflict grievous bodily injury on
another; (3) an extremely reckless disregard for the value of human life (depraved heart murder);
OR (4) the intention to commit a felony during the commission of which the death results.
c. INTENTION TO KILL A HUMAN BEING (INTENTIONAL)
(i) One who intentionally kills another human being without justification, excuse, or mitigating
circumstance is guilty of killing with malice aforethought.
(ii) “Willful, deliberate, premeditated killings”
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 (a) “DELIBERATE” (THIS IS ABOUT QUALITY/THINKING)
(1) Deliberate means to measure and evaluate the major facets of a choice or problem.
(2) It is the process of determining upon a course of action to kill as a result of thought,
including weighing the reasons for and against the action and considering the
consequences of the action.
(3) Deliberation takes time. It is impossible for a person to deliberate unless she
premeditates.
(4) Whereas premeditation involves the quantity of time that a person put into
formulating her design, deliberation speaks to the quality of the thought process.
(b) “PREMEDITATED”
(1) To premeditate means to think about beforehand. (THIS IS TIME)
(2) State v. Guthrie: Any interval of time between the forming of the intent to kill and the
execution of that intent, which is of sufficient duration for the accused to be fully
conscious of what he intended is sufficient.
d. GRIEVOUS BODILY INJURY (NOT INTENTIONAL)
(i) Malice aforethought is implied if a person intends to cause grievous bodily injury to another,
but death results. This form of malice nearly always constitutes second-degree murder.
(ii) Grievous bodily injury: such injury as is grave and not trivial, and gives rise to apprehension
of danger to life, health, or limb.
e. DEPRAVED HEART MURDER (XTREME RECKLESSNESS) (NOT INTENTIONAL)
(i) Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the
value of human life.
(ii) A depraved-heart murder is a “reckless” or “extremely reckless” homicide.
(iii)The accused does not intend to kill her victim, but malice is implied because there is a
wanton and willful disregard of the likelihood that the natural tendency of the defendant’s
behavior is to cause death or great bodily harm.
(iv) Distinguish between manslaughter”
(a) Murder: kills recklessly if she consciously disregards a substantial and unjustifiable risk
to human life.
(b) Manslaughter: when a person should be, but is not, aware that her conduct is very risky.
Implied malice is lacking.
f. FELONY MURDER (NOT INTENTIONAL)
(i) One is guilty of murder if a death results from conduct during the commission or attempted
commission of any felony.
(ii) Typically first-degree murder unless the death occurs from an unspecified felony. (Making it
second degree)
(iii)Applies whether the felon kills the victim intentionally, recklessly, negligently, or
accidentally and unforeseeably. Thus it authorizes strict liability for a death.
(iv) Inherently-Dangerous-Felony Limitation:
(a) Test 1: Whether the crime by its very nature cannot be committed without creating a
substantial risk that someone will be killed.
(b) Test 2: the facts and the circumstances of the particular case to determine if such felony
was inherently dangerous in the manner and circumstances in which it was committed.

13
 (v) Independent-Felony (or Merger) Limitation
(a) The felony murder rule only applies if the predicate felony is independent of, or collateral
to, the homicide. (Ex. Cannot get tried for felony murder if committing involuntary
manslaughter because IM is technically a felony)
(vi) The Res Gestae Requirement
(a) In order for the felony murder rule to operate, the homicide must occur within the res
gaste of things done to commit the felony.
(b) There must be a relatively close proximity in terms of time and distance between the
felony and the homicide.
(c) Causation: But for and must also prove that the felonious nature of the conduct that
caused the death.
(vii) Killing by Non-felon? (Victim)
(a) Agency Approach: the felony murder rule does not extend to a killing, although growing
out of the commission of the felony, if directly attributable to the act of one other than the
defendant or those associated with him in the unlawful enterprise.
(b) The Proximate Cause Approach
(1) Liable for any death that is the proximate result of the felony, whether the shooter is a
felon or a third party.
2. MANSLAUGHTER
a. An unlawful killing of a human being by another human being without malice aforethought.
b. Three types of unlawful killings constitute manslaughter:
c. SUDDEN HEAT OF PASSION (EXCUSABLE IMPULSES) (INTENTIONAL)
(i) Under CL, an intentional homicide committed in sudden heat of passion as the result of
adequate provocation mitigates the offense to voluntary manslaughter.
(ii) In Florida, satisfying the elements provides a complete defense to manslaughter. (Excusable
homicide)
(iii)Elements:
(a) Actor must have acted in heat of passion
(1) The provocation defense does not apply unless the defendant is in a state of passion at
the moment of the homicide.
(2) Passion includes: anger or any violent, intense, high-wrought, or enthusiastic
emotion.
(3) Broad to include fear, jealousy, furious resentment, and wild desperation.
(b) The passion must have been the result of adequate provocation
(1) What a court should deem adequate provocation should be left to the jury.
(2) Jury Instructions:
 “The unlawful provocation would render any ordinarily prudent person for the
time being incapable of that cool reflection that otherwise makes it murder.”
 “The unlawful provocation might render ordinary men, of fair average
disposition, liable to act rashly or without due deliberation or reflection, and from
passion, rather than judgment.”
 “The unlawful provocation is sufficient to cause an ordinary man to lose control
of his actions and his reason.”
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 (3) WORDS ALONE DO NOT CONSTITUTE ADEQUATE PROVOCATION.
 DOES NOT APPLY TO MODEL PENAL CODE STATES.
(4) Misdirected retaliation rule (MINORITY): the defense may only be asserted if the
defendant attempted to kill the person who performed the provocative act rather than
an innocent bystander.
(5) ORDINARY PERSON
 Standard of the ordinary person in the actor’s situation:
 Measure the gravity of the provocation to the reasonable/ordinary person
 In assessing the level of self-control to be expected of a reasonable/ordinary
person
 ∆’s height, weight, sex, religion, race, culture, or personal factor are incorporated
if jury believes it affects the gravity
 We don’t care if they lose their cool all the time.
(6) MUTUAL COMBAT CANT BE MURDER. IT IS VOLUNTARY
MANSLAUGHTER. UNLESS COOL DOWN HAPPENS.
(c) The actor must not have had a reasonable opportunity to cool off
(1) The homicidal act had to occur in the first transport of passion. (Left to jury)
(d) There must be a causal in between the provocation, the passion, and the homicide
(1) The provocation defense is unavailable to a ∆ whose motivation for the homicide is
causally unrelated to the provocation.
(2) Example: Already planning to kill and then getting provoked afterwards (catching
spouse cheating when going in for the kill)
d. AN ACT, LAWFUL IN ITSELF, BUT DONE IN AN UNLAWFUL MANNER AND W/OUT
DUE CAUTION AND CIRCUMSPECTION (NEGLIGENCE)
(i) A person does an act, lawful in itself, but in an unlawful manner and without due caution and
circumspection.
(ii) Gross deviation from the standard of care that reasonable people would exercise in the same
situation.
e. KILLING THAT OCCURS DURING THE COMMISSION OR ATTEMPTED COMMISSION
OF AN UNLAWFUL ACT (NON-FELONY) (NOT INTENTIONAL)
(i) An accidental homicide that occurs during the commission of an unlawful act not amounting
to a felony constitutes involuntary manslaughter.
B. Model Penal Code
1. MURDER
a. When the actor unjustifiably, inexcusably, an din the absence of a mitigating circumstance, kills
another:
(i) Purposely or knowingly; OR
(ii) Recklessly, under circumstances manifesting extreme indifference to the value of human life.
b. Abandons the CL element of malice aforethought.
c. The MPC provides that extreme recklessness is non-conclusively presumed if the homicide
occurs while the actor is engaged in, or is an accomplice in, the commission or attempted
commission of, or flight from, one of the dangerous felonies specified in the statute.
2. MANSLAUGHTER
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 a. Reckless Homicide
(i) A person who kills another recklessly is guilty of manslaughter.
(ii) This does not have extreme indifference like murder.
(iii)When a defendant is prosecuted for reckless murder, the jury is entitled to a jury instruction
regarding reckless manslaughter.
b. Extreme Emotional Disturbance
(i) A person who would be guilty of murder because she purposely or knowingly took a human
life, or because she killed a person recklessly under circumstance manifesting an extreme
indifference to the value of human life, is guilty of the lesser offense of manslaughter if she
killed the victim while suffering form an extreme mental or emotional disturbance for which
there is reasonable explanation or excuse.
(ii) The EMED manslaughter provision is much broader than the common law provocation
defense.
(a) A specific provocative act is not required to trigger the EMED defense.
(b) All that has must be proved is that the homicide occurred as the result of an EMED for
which there is a reasonable explanation of excuse.
(c) Provocation need not involve an injury, affront, or other provocative act perpetuated upon
the defendant by the decedent.
(iii)Words alone CAN warrant a manslaughter instruction.
(iv) No rigid cooling off rule.
MPC Common Law
Provoking Act NOT Required Provoking Act is required
No injury needed to provoke Injury provoke required
No Provoke category Mutual combat, crime against family, illegal
arrest, observe adultery
No cool off rule Cool off rule applies
Words Count Words do NOT count

3. NEGLIGENT HOMICIDE
a. Common Law equivalent: involuntary manslaughter
b. A criminally negligent homicide constitutes the lesser offense of negligent homicide under the
Code.
VII. ACCOMPLICE LIABILITY
A. Common Law
1. General Principles
a. Accomplish: S is an accomplice of P in the commission of an offense if he intentionally assists P
to engage in the conduct that constitutes the crime if S intended to assist the crime and, in fact,
assisted.
b. Assist: Aiding, abetting, encouraging, soliciting, advising, and/or procuring the commission of
the offense.
c. Criminal Responsibility of an Accomplice: Derivative Liability

16
 (i) An accomplice is not guilty of an independent offense of “aiding and abetting”; instead, as
the secondary party, he derives his liability from the primary party with whom he has
associated himself. (Primary party’s acts become accomplices acts)
(ii) If the principal’s conduct does not sufficiently proceed far enough to constitute offense,
accomplice is guilty of no offense as an accomplice.
2. Terminology
a. Parties to a Felony
(i) Principal in the First Degree
(a) A principal in the first degree is the person who, with the requisite mens rea:
(1) Physically commits the acts that constitute the offense; OR
(2) Commits the offense by use of an innocent instrumentality or innocent human agent
(b) Innocent-Instrumentality Rule
(1) A person is the principal in the first degree if, with the mens rea required for the
commission of the offense, he uses a non-human agent or a non-culpable human
agent to commit the crime. (ex. Dog to steal for owner)
(2) A human being can be an innocent instrumentality. (ex. Having bystander get you
something by you claiming it’s yours when it’s not.)
(3) Also a principal in the first degree if he causes X, an insane person or a child, to
commit an offense, OR if he coerces X to commit the crime. (insanity, infancy, or
duress)
(ii) Principal in the Second Degree
(a) One who is guilty of an offense by reason of having intentionally assisted in the
commission of the crime in the presence, either actual or constructive, of the principal in
the first degree.
(b) A person is “constructively present” if he is situated in a position to assist the principal in
the first degree during the commission of the crime.
(iii)Accessory Before the Fact: Doesn’t differ from a principal in the second degree, except that
he is NOT actually or constructively present when the crime is committed. (commands the
crime)
(iv) Accessory After the Fact
(a) One who, with knowledge of another’s guilty, intentionally assist the felon to avoid
arrest, trial, or conviction.
(b) Now treated as an offense in a separate from, or often less serious than, the felony
committed by the principal in the first degree.
b. Principals Versus Accessories: Procedural Significance
(i) Jurisdiction
(a) Principal: Jx in which the crime was perpetrated
(b) Accessory: Jx in which the accessorial acts occurred
(ii) Rules of Pleading
(a) Acquittal required if mistakenly categorized
(iii)Timing of the Trial of Accessories
(a) Tried jointly assuming that the court has Jx over all the parties.

17
 (b) Accessory cannot be tried in advance of the principal’s trial. (If principal is dead,
accessory cannot be brought to justice)
(iv) Effect of the Acquittal of a Principal
(a) An accessory could not be convicted of a crime unless and until the principal was
convicted.
(b) Even if it was based on a jury finding that, although the crime occurred and the accessory
assisted in it, the principal was not guilty of the offense due to insanity or because
another person committed the crime.
(v) Degree of Guilt of the Parties
(a) The accessory cannot be convicted of a higher degree of an offense than his principal.
(b) Exception: An accessory could be convicted of higher degree of criminal homicide than
the principal. (principal killed in heat of passion, but accomplice acted with malice
aforethought.)
3. Assistance
a. An accomplice is a person who, with the requisite mens rea, assists the primary party in
committing an offense.
b. Three forms of assistance
(i) Physical Conduct: Self explanatory
(ii) Psychological Influence
(a) Occurs if S incites, solicits, or encourages P to commit the crime.
(b) Presence at the scene of the crime, even when coupled with undisclosed determination
not to interfere or passive acquiescence, is insufficient to convict a person as accomplish.
(c) Presence at the scene, coupled with the hidden intention to aid f necessary, is also not
enough.
(d) Presence coupled with very little else can justify a finding of accomplice liability based
on psychological encouragement.
(e) Proof of presence, coupled with a prior agreement to assist, will support a claim of
encouragement even if such assistance is not rendered.
(iii)Omission
(a) Neither failure to inform police authorities of an impending crime, nor failure to attempt
to stop the crime that is occurring, will establish accomplice liability.
(b) Different if legal duty to intervene. (Property owner may have legal duty to prevent
commission of crime on property)
c. Amount of Assistance Required
(i) One cannot merely be present.
(ii) If one is present at the scene of the crime in order to aid if necessary, but his assistance is not
called upon, then they are not an accomplice. (Same if the principal does not hear him or
opens window when uses door)
(iii)Any aid no matter how trivial suffices as long as they have the requisite mens rea.
d. Causation
(i) Secondary party is accountable for the conduct of the primary party even if his assistance
was causally unnecessary to the commission of the offense.
(ii) Absence of causation requirement.

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4. Mens Rea for Accomplice Liability (Heavily Tested)
a. A person is an accomplice in the commission of an offense if he intentionally aids the
primary party to commit the offense charged.
(i) Dual Intents
(a) Intent to Assist
(b) Intent that the primary party commit the offense
b. Typically adequate unless the person charged is charged with recklessness or negligence.
c. More specific dual intents
(i) The intent to assist the primary party to engage in the conduct that forms the basis of
the offense
(ii) The mental state required for commission of the offense, as provided in the definition of
the substantive crime
(a) Almost always may be inferred upon proof of the first.
d. Significant Mens Rea Issues
(i) Liability for Crimes of Recklessness and Negligence
(a) Majority Rule: An accomplice in the commission of a crime of recklessness or
negligence is permitted as long as the secondary party has the two mental states described
required for commission of the substantive crime.
(b) Minority Rule: No liability
(c) Example: Encouraging speeding. Speeder loses control and kills bystander. Would be
liable, unless he goes decides to go wrong way and hit someone. Not foreseeable.
(ii) Natural and Probable Consequences Doctrine
(a) Majority Rule: A person encouraging or facilitating the commission of a crime may be
held criminally liable not only for that crime, but for any other offense that was a natural
and probable consequence of the crime aided and abetted. (“ordinary course of things
Crime B might reasonably ensue from the planned event”) (It is not enough that Crime B
might conceivably ensue) (Must be within the normal range of outcomes that may be
expected to occur if nothing unusual has intervened.
e. Liability of the Secondary Party in Relation to the Primary Party
(i) An accessory could not be convicted of the crime in which he assisted until the principal was
convicted, and, with the limited exception of criminal homicide, could not be convicted of a
more serious offense or degree of offense than that of which the principal was convicted.
(ii) Liability when the Primary Party is Acquitted
(a) “Primary Party” as an Innocent Instrumentality
(1) If the primary party is coerced by X (by duress for example, X is guilty of the target
offense of the primary party. They are not found to be an accomplice.
(b) Acquittal on the Basis of a Defense
(1) Justification Defenses: A assists B to kill C. B is acquitted of murder on the ground of
self-defense. A is not guilty for homicide.
(2) Excuse Defenses: When the primary party is acquitted on the basis of an excuse
(insanity, involuntary, intoxication, or duress), his acquittal should not bar a
successful prosecution of a secondary party to whom the excuse does not extend.
(c) Acquittal on the Basis of Lack of Mens Rea

19
 (1) Might still get charged. (Ex. Guy tells man to have sex with wife. Wife didn’t
actually consent. So guy who had sex was acquitted but husband was charged as
accomplice.)
(2) The common law rule used to be that an accessory before the fact could not be
convicted of a more serious offense, or a higher degree of an offense, than that for
which the principal was convicted. (It has nearly always been the case that an
accomplice may be convicted of a lesser degree of crime than the principal in the first
degree.) This rule is breaking down. Even in an earlier era, however, most courts
treated criminal homicides differently: on the proper facts, courts were and are
prepared to convict an accomplice of a higher degree of criminal homicide than the
perpetrator.
5. Limits to Accomplice Liability
a. Legislative-Exemption Rule
(i) A person may not be prosecuted as an accomplice in the commission of a crime if he is a
member of the class of persons for whom the statute prohibiting the conduct was enacted to
protect. (Young women in statutory rape)
b. Abandonment
(i) As with the law of conspiracy, many courts hold that a person who provides assistance to
another for the purpose of promoting or facilitating the offense, but who subsequently
abandons the criminal endeavor, can avoid accountability for the subsequent criminal acts of
the primary party.
(ii) Spontaneous and unannounced withdrawal will not do.
(iii)The accomplice must communicate his withdrawal to the principal and make bona fide
efforts to neutralize the effect of his prior assistance.
B. Model Penal Code
1. A person can be convicted of an offense if he personally commits the crime, or if his relationship to
the person who commits it is one for which he is legally accountable. Three forms of accountability:
a. Innocent Instrumentality
(i) One is guilty of the commission of a crime if he uses an innocent instrumentality to commit
the crime.
(ii) Applies only if D causes X to engage in the conduct. Not merely because X was insane. But
for causation.
b. Miscellaneous Accountability
(i) A person may be held accountable for another person’s conduct if the law defining an
offense so provides.
c. Accomplice Accountability
(i) A person is legally accountable for the conduct of another person if he is an accomplice of
the other in the commission of the criminal offense.
(a) Dependent on the relationship of the parties in the commission of a specific offense.
d. Rejection of Pinkerton doctrine of conspiratorial liability. A person is not accountable for the
conduct of another solely because he conspired with that person to commit an offense.
2. Nature of “Accomplice”
a. Conduct

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 (i) S is an accomplice of P in the commission of an offense if, with the requisite mens rea, he:
(a) Solicits P to commit the offense
(b) Aids, agrees to aid, or attempts to aid P in the planning or commission of the offense; OR
(c) Has a legal duty to prevent the commission of the offense but makes no effort to do so.
(ii) Solicitation: S’s conduct would constitute criminal solicitation, as that offense is defined
elsewhere in the code
(iii)Aiding: Single word as opposed to CL
(iv) Agreeing to Aid:
(a) Not an accomplice if agreeing to solicit (to as for money)but fails to do so.
(b) Requirement met if S tells P that he will help or agrees to provide an instrumentality,
even if S does not do so. Agreeing serves as encouragement.
(c) Agreeing to aid is not equivalent to conspiring to commit an offense.
(v) Attempting to Aid (DEPARTURE FROM CL)
(a) Accountable as an accomplice if attempt to aid even if ineffectual.
b. Mental State
(i) A person is an accomplice if he assists with the purpose of promoting or facilitating the
commission of the offense.
(ii) ALI rejected the argument that complicity liability should apply to one who knowingly but
not purposely facilitates the commission of an offense. (Dynamite seller sells to someone
knowing they will use it to open safe; not guilty)
(iii)Recklessness and Negligence
(a) A person is an accomplice in the commission of the offense if
(1) He is an accomplice in the conduct that caused the result AND
(2) He acted with the culpability, if any, regarding the restul that is sufficient for
commission of the offense.
 First determine P’s potential responsibility
 Second ask whether S was an accomplice in the conduct that caused the result
 Third as whether S acted with the culpability in regard to the result that is
sufficient for commission of the offense
(iv) Attendant Circumstances: Code does not address
(v) Natural and Probable Consequences Doctrine? Rejected by the Code
3. Liability of the Accomplice in Relation to the Perpetrator
a. An accomplice in the commission of an offense may be convicted of a crime, upon proof of its
commission by another person, regardless of whether the other person is convicted, acquitted or
not prosecuted.
b. May be charged with different offense or one of different degree.
c. Legally incapable can be held liable for actions of one who is legally capable. (Husband cannot
rape own wife but can be accomplice)
4. Limits to Accomplice Liability
a. A person is not an accomplice if any of three circumstances exist:
(i) Is a the victim of the offense (Parent paying ransom)
(ii) Inevitably incidental to the commission of the offense (purchaser of narcotic is not an
accomplice in the commission of the sale or delivery of the controlled substance to himself)
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 (iii)Abandonment
(a) Neutralizes assistance
(b) Gives timely warning to the police of the impending offense
(c) OR in some other manner attempts to prevent the commission of the crime.
VIII. SELF-DEFENSE
A. General Principals
1. RULE: A non-aggressor is justified in using force upon another if he reasonably believes such
force is necessary to protect himself from imminent use of unlawful force by the other person.
Deadly force is only justified in self-protection if the actor reasonably believes that its use is
necessary to prevent imminent and unlawful use of deadly force by the aggressor.
2. The Necessity Component:
a. Force should not be used against another unless, and only to the extant that, it is necessary.
b. It is limited at common law to imminent threats
c. A person may not use deadly force to combat an imminent deadly assault if some nondeadly
response will apparently suffice. (Elderly attacks you)
d. Retreat doctrines explained below
3. The Proportionality Component
a. A person is not justified in using force that is excessive in relation to that harm threatened.
b. A person may use nondeadly force to repel a nondeadly threat.
c. A person may also use nondeadly force against a deadly threat.
d. A person is never permitted to use deadly force to repel what he knows is a nondeadly attack,
even if deadly force is the only way to prevent the battery. (Ex. If A threatens to strike B on a
public road, and the only way B can avoid the battery is to push A into the street, B must abstain
and seek compensation for the battery after the fact.
4. The “Reasonable Belief” Component
a. A self-defense claim contains a subjective and objective component.
b. First, Jury must determine that the defendant subjectively believed that he needed to use deadly
force to repel an imminent unlawful attack.
c. Second, the defendant’s belief in this regard must be one that a reasonable person in the same
situation would have possessed.
d. EVEN IF APPEARENCES PROVE TO BE FALSE, ONE CAN STILL HAVE A
REASONABLE BELIEF.
B. The “Non-Aggressor” Limitation
1. Aggressor: One whose affirmative unlawful act is reasonably calculated to produce an affray
foreboding injurious or fatal consequence. OR, one who threatens unlawfully to commit a battery
upon another or who provokes a physical conflict by words or actions calculated to bring about an
assault.
2. An aggressor has not right to self-defense.
3. A person is an aggressor even if he merely starts a nondeadly conflict
4. IT is incorrect to state that the first person who uses force is always the aggressor.
5. Often a matter for the jury to decide.
6. Removing the Status of Aggressor

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 a. A deadly aggressor is a person whose acts are reasonably calculated to produce fatal
consequences.
(i) Only way such a person may regain the right to self-defense is by withdrawing in good faith
from the conflict and fairly communicating this fact, expressly or impliedly to his intended
victim.
(ii) Strictly Applied
b. When the victim of a nondeadly assault responds with deadly force, the original aggressor
immediately regains his right of self-defense.
(i) Old rule: Initial nondeadly aggressor does not have an automatic right of self-defense. Rather
his charge will get dropped to a lower crime (murder to manslaughter).
C. Necessity Requirement
1. Retreat Rule
a. If a person can safely retreat and avoid killing the aggressor, deadly force is unnecessary.
b. No Retreat Rule (MAJORITY): a non aggressor is permitted to use deadly force to repel an
unlawful deadly attack even if he is aware of a place to which he can retreat in complete safety.
2. Castle Exception
a. A non aggressor is not ordinarily required to retreat from his dwelling even though he knows he
could do so in complete safety.
b. Applies to businesses too.
3. Stand Your Ground (No retreat rule above)
D. Deadly Force: force likely or reasonably expected to cause death or serious bodily injury; actor’s state of
mind to likely outcome is irrelevant. Some Jx include a mental-state element in the definition.
1. Unlawful Force
a. Person may not defend himself against he imposition of lawful justified force.
2. Imminent
a. Person who wishes to use force in self-defense must reasonably fear that the threatened harm is
imminent.
b. Immediately or at the moment of danger. The danger must be pressing and urgent. Later time is
not imminent.
3. Words do not constitute aggression
E. Proportionality
1. A person ma use nondeadly force to repel non deadly threat
2. May use non deadly force against deadly treat
3. Never permitted to use deadly force to repel what he knows is a nondeadly attack, even if deadly
force is the only way to prevent the battery.
F. Reasonable Belief Standard
1. A person may only defend himself if he subjectively believes that deadly force is required AND a
reasonable person would also believe that it is appropriate under the circumstances.
G. MODEL PENAL CODE
1. Force
a. A person is justified in using force upon another person if he believes that such force is
immediately necessary to protect himself against the exercise of unlawful force by the other
individual in the present occasion.

23
 b. Drafted in terms of the actor’s SUBJECTIVE belief; need not be reasonable.
c. Authorizes self-protective force sooner than may be allowed in common law.
2. Deadly Force
a. Force used for the purpose of causing or that the actor knows to create a substantial risk of
causing death or serious bodily injury. (death, serious injury, forcibly rape, kidnapping)
3. Retreat
a. A person may not use deadly force against an aggressor if he knows that he can avoid the
necessity of using such force with complete safety be retreating.
(i) Exception: Retreat from home or office is required if actor was the initial aggressor, and
wishes to regain his right of self protection; OR even if he was not the aggressor, if he is
attacked by a co-worker in their place of work.
4. Mistake of Fact
a. Each justification defense dealing with the use of defensive force is defined solely in terms of the
∆’s subjective belief in the necessity or using the force.
b. When the ∆ is reckless or negligent in regard to the facts relating to the justifiability of his
conduct, the justification defense is unavailable to him in a prosecution for an offense for which
recklessness or negligence suffice to establish culpability.
IX. DIMINISHED CAPACITY
A. “Diminished Capacity”: A Term of Confusion
1. It’s a term used to describe two categories of circumstances in which an actor’s abnormal mental
condition, short of insanity, will occasionally exonerate him or, far more often, result in his
conviction of a less serious crime or degree of crime than the original charge.
2. There is a mens rea form of diminished capacity.
a. Evidence of mental abnormality is not offered by the ∆ to partially or fully excuse his conduct,
but rather is evidence to negate an element of the crime charged, almost always the mens rea
element.
3. There is a partial responsibility form.
a. Only used in crime of murder to mitigate homicide to manslaughter.
B. Mens Rea Defense
1. Fill
X. ATTEMPT
A. General Principals
1. Definition: An attempt occurs when a person, with the intent to commit a criminal offense, engages
in conduct that constitutes the beginning of the preparation of, rather than the mere preparation for,
the target (i.e. intended) offense.
2. Punishment: An attempt to commit a felony is graded as a felony but typically is treated as a lesser
offense than the substantive crime.
3. Merger Doctrine: A criminal attempt merges into the target offense, if it is successfully completed.
B. Assault vs. Attempt
C. Mens Rea
1. If there is a result element, the actual result must be intended. (Must intend murder when beating
someone up for attempted murder.)
2. Can there be attempted voluntary manslaughter? Yes

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D. Actus Reus of Criminal Attempts
1. Tests determine where an attempt begins and ends. Two categories: (1) those that foucs on how
much remains to be done before crime is committed and (2) those that consider how much has
already occurred.
2. “Last Act” Test
a. Attempt only occurs when the person performed all of the acts that she believe were necessary to
commit the target offense.
3. “Physical Proximity” Test
a. It must approach sufficiently near to the crime to stand either as the first or some subsequent step
in a direct movement towards the commission of the offense after the preparations are made.
4. “Dangerous Proximity” Test
a. A person is guilty of an attempt when her conduct is “in dangerous proximity to success”, or
when an act is so near to the result that the danger of success is very great.
b. More flexible than physical proximity test.
c. Three factors to consider:
(i) Nearness of the danger
(ii) Greatness of the harm
(iii)Degree of apprehension felt
d. Examining drugs, but rejecting them on quality grounds is guilty of attempted possession of a
controlled substance
e. Pizzi: Rigging the entire house but leaving is not dangerous proximity.
f. Rizzo: In the absence of the victim, the armed suspect were not dangerously close to success.
5. “Indispensable Element” Test
a. Every element has to be met.
b. An actor who does not yet possess a necessary instrumentality fr the crime has not yet crossed
the line from prep to perpetration.
c. An offense that requires action by an innocent person cannot be attempted until such action is
completed.
d. IT IS ARBITRARY.
e. If crime says dealt with another person, the other person HAS TO BE THERE.
6. “Probably Desistance” Test
a. Centers on how far the defendant has already proceeded
b. Court will find an attempt when, in the ordinary course of events, without interruption from an
external source, the actor reached a point where it was unlikely that he would have voluntarily
desisted from his effort to commit the crime.
7. “Unequivocality” Test
a. Res Ipsa Loquitor
b. An act does not constitute an offense until it ceases to be Equivocal
c. An attempt occurs when a person’s conduct, standing alone, unambiguously manifests her
criminal intent.
d. Jury watches conduct in a video with sound muted, so they infer that they would were attempting
to commit the crime.
E. Defense: Impossibility

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 1. Factual Impossibility (NOT A DEFENSE IN CL)
a. FI exists when a person’s intended end constitutes a crime but she fails to consummate the
offense because of an attendant circumstance unknown to her or beyond her control.
b. Examples:
(i) A pickpocket putting her hand in the victim’s empty pocket
(ii) An abortionist beginning the surgical procedure on a nonpregnant woman
(iii)An impotent male trying to have nonconsensual sex
(iv) An assailant shooting into an empty bed where the intended victim customarily sleeps
(v) An individual pulling the trigger of an unloaded gun aimed at a person who is present.
c. INHERENT FACTUAL IMPOSSIBILITY (MAY BE A DEFENSE)
(i) Applies if method to accomplish the crime was one that a reasonable person would view as
completely inappropriate to the objectives sought.
(ii) Examples
(a) Voodoo Doctor
(b) Attempting to sink a ship with a pop-gun
2. Legal Impossibility
a. Pure LI
(i) Arises when the law does not proscribe the goal that the defendant sought to achieve
(a) Person performs a lawful act with a guilty conscious. (Does something legal that she
things isn’t)
(b) More problematic when an actor’s conduct is prohibited, but cannot legaly constitute the
offense charged. (ex. Adding a number to a check when that part of the check ends up
being legally immaterial) (ex. Touching girls boob and being charged with attempted
rape even if they thought they raped the victim)
b. Hybrid Legal LI
(i) Exists if the actor’s goal is illegal, but commission of the offense is impossible due to a
factual mistake regarding the legal status of some attendant circumstance that constitutes an
element of the offense charged.
(ii) Example
(a) Receives unstolen property believing that is was stolen
(b) Pick pocket of a stone image of a human
(c) Bribe to juror who is not a juror
(d) Hunt deer out of season but hits stuffed animal
(e) Tree stump believing it’s a human
(f) Sends porn to an adult believing that she’s a minor
(iii)Most states have abolished this defense
3. At common law, LEGAL IMPOSSIBILITY IS A DEFENSE; FACTUAL IS NOT.
F. Abandonment is not recognized as a defense. Where it does apply, it’s only valid if it is voluntary and
complete.
1. Doesn’t work if some circumstance increases likelihood of arrest
2. Not abandonment if postponed crime
G. Model Penal Code

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1. The proper focus of attention is the actor’s disposition. The MPC provisions are accordingly drafted
with this in mind.
2. The MPC approach is nearly subjectivist throughout.
3. It defines a criminal attempt in a manner that makes amenable to the corrective process those
persons who have manifested a propensity to engage in dangerous criminal activity.
4. Two elements:
a. The purpose to commit the target offense
(i) Does the case involve a complete or incomplete attempt?
(a) Incomplete: A person is guilty of attempt if he purposely does or omits to do anything
that, under the circumstances as he believes them to be, is an act or omission constituting
a substantial step in a course of conduct planned to culminate in his commission of the
crime.
(ii) If the case involves a complete attempt, is the target offense a result crime (murder) or a
conduct crime (driving drunk)?
(a) Result Crime: A person is guilty of attempt if when causing a particular result is an
element of the crime, does or omits to do anything with the purpose of causing or with
the belief that it wall cause such result without further conduct on his part.
(b) Conduct Crime: A person is guilty of attempt if he purposely engages in conduct that
would constitute the crime if the attendant circumstances were as he believed them to be.
b. Conduct constituting a substantial step toward the commission of the target offense.
5. Mens Rea
a. A person is not guilty of a criminal attempt unless it was her purpose, i.e. conscious objective, to
engage in the conduct or to cause the result that would constitute the substantive offense.
b. Exceptions to purpose:
(i) A person is guilty of an attempt to cause a criminal RESULT if she believes that the result
will occur, even if it was not her conscious object to cause it. (D plants bomb on plane to kill
V and the bomb does not go off)
(ii) “acting with the kind of culpability otherwise required for the commission of the crime”
(a) means that the mens rea of “purpose” or “belief” does not necessarily encompass the
attendant circumstances of the crime.
(b) For attendant circumstance elements, it is sufficient that the actor possessed the degree of
culpability required to commit the target offense.
6. Actus Reus
a. The MPC shifts the focus of attempt law form what remains to be done.
b. The substantial step standard is intended to broaden the scope of attempt liability.
(i) Conduct is not a substantial step unless it strongly corroborates the ∆’s criminal purpose.
(Incorporates some rules of unequivocally test of attempt) Does not require that the ∆’s
conduct by itself manifest criminality. The actor’s conduct considered in light of all the
circumstances, must add significantly to other proof of her criminal intent. (confession)
(ii) IF any of the enumerated instances are established, the jury as fact finder is entitled to
evaluate whether the defendant has taken a substantial step.
(a) Lying in wait
(b) Searching for or following the contemplated victim of the crime

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 (c) Reconnoitering the contemplated scene of the crime
(d) Unlawful entry into a structure or building in which the crime will be committed
(e) Possession of the materials to commit the offense, if they are specially designed for a
criminal purpose
c. Attempt to Aid
(i) A person may be convicted of a criminal attempt, although a crime was neither committed
nor attempted by another, if
(a) The purpose of her conduct is to aid another in the commission of the offense, AND
(b) Such assistance would have made her an accomplice in the commission of the crime
under the Code’s complicity statute if the offense had been committed or attempted.
(c) Rationale: a person who attempts to aid the commission of an offense is an dangerous as
one who successfully aids in its commission or attempted commission.
7. Defenses
a. Impossibility
(i) Hybrid
(ii) Pure: still recognized
b. Renunciation (Abandonment)
(i) Not guilty of an attempt if:
(a) She abandons her effort to commit the crime or prevents it from being committed AND
(b) Her conduct manifests a complete and voluntary renunciation of her criminal purpose
(ii) Postpone doesn’t count
(iii)Not voluntary if partially or wholly motivated by circumstances that increase chance of
probability
8. Grades of Criminal Attempt
a. Same punishment unless it is a felony of the first degree. Drops it to second degree.
b. Special Mitigation: Judge can drop it himself if the result is unlikely and conduct does not
represent danger to society justifying conviction.
XI. INSANITY
A. LEGAL WRONG + M’GNAUGHTEN = DO NOT USE THE WORD APPRECIATE
B. WILSON WRONGFULLNESS TEST + MPC = USE APPRECIATE
C. M’Naghten Test
1. A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising
from a disease of the mind, that she:
a. Did not know the nature and quality of the act that she was doing; OR
b. If she did know it, she did not know that what she was doing was wrong.
2. Legal Wrong: based on illegality of act
3. Moral Wrong: based on knowledge of the immorality of action
4. Wilson: Knowingly violated societal standards of morality
D. MODEL PENAL CODE
1. A person is not responsible for her criminal conduct if, at the time of the conduct, as the result of a
mental disease or defect, she lacked substantial capacity to:
a. Appreciate the “criminality” of her conduct; OR
b. To conform her conduct to the requirement of the law

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 2. Uses term appreciate rather than know, in order to avoid a narrow interpretation of M’Naghten.
3. The test avoids the word impulse, in order to sidestep the potential pitfalls arising from using that
word
4. Substantial capacity is less than total incapacity.
E. Federal Test
1. A person is excused if she proves by clear and convincing evidence that, at the time of the offense,
as the result of a sever mental disease or defect, she was unable to appreciate:
a. The nature and quality of her conduct OR
b. The wrongfulness of her conduct.
XII. CONSPIRACY
A. Solicitation (to ask) -> Conspiracy (to agree) -> Attempt -> Crime
B. General Principals
1. Common Law: an agreement between two or more persons to commit a criminal act or series of
criminal acts, or to accomplish a legal act by unlawful means.
2. MPC
a. A person is guilty of conspiracy with another person or persons to commit a crime if with the
purpose of promoting or facilitating its commission he:
(i) Agrees with such other person or persons that they or one or more of them will engage in
conduct that constitutes such crime or an attempt or solicitation to commit such crime; OR
(ii) Agrees to said such other person or persons in the planning or commission of such crime or
of an attempt or solicitation to commit such crime.
C. Punishing Conspiracies: How Much?
1. In General
a. CL: Conspiracy was a misdemeanor. Now if misdemeanor than misdemeanor and if felony then
felony. Less severely than target offense.
b. MPC: grades a conspiracy to commit any crime other than a felony of the first degree at the same
level as the object of the conspiracy. Graded on bases of most serious crime if multiple.
(Subjective view)
2. Punishment When the Target Offense is Committed
a. Common Law: Does not merge into the attempted or completed offense that was the object of
the conspiracy. Could be charged for the conspiracy AND the crime.
b. MPC: Person may not be convicted and punished for both conspiracy and the object of the
conspiracy or an attempt to commit the target offense, unless the prosecution proves that the
conspiratorial agreement involved the commission of additional offenses not yet committed or
attempted.
D. The Agreement
1. Common Law
a. In General
(i) An express agreement need not be proved.
(ii) An agreement may exist although not all of the parties to it have knowledge of every detail of
the arrangement, as long as aware of essential nature.
(iii)Conspiracy may exist even if a conspirator does not agree to commit or facilitate each and
every party of the substantive offense.

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 (iv) Agreement may be established directly or through entirely circumstantial evidence.
b. Object of the Agreement
(i) The object of a conspiracy must be to do either an unlawful act or a lawful act by criminal or
unlawful means.
(ii) The contemplated act need not constitute a crime. Enough if the acts contemplated are
corrupt, dishonest, fraudulent.
c. Overt Act
(i) Conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of
the conspiracy need be proved.
(ii) In Jx requiring an over act, the act need not constitute an attempt to commit the target
offense. Any act no matter how trivial is sufficient if performed in pursuance of the
conspiracy.
(iii)The allegation and proof of a single over act by any party to a conspiracy is sufficient to
prosecute every member including those who may have joined in the agreement after
the act was committed.
2. MPC
a. The agreement is the core of conspiracy.
b. Four types of agreements fall within conspiracy. Agreement to:
(i) Commit an offense
(ii) Attempt to commit an offense
(iii)Solicit another to commit an offense
(iv) Aid another person in the planning or commission of the offense
c. Object of the Agreement: The object of the conspiratorial agreement must be a criminal
offense.
d. Overt Act
(i) A person may not be convicted of conspiracy to commit a misdemeanor or a felony of the
third degree unless she or a fellow conspirator performed an overt act in furtherance of the
conspiracy.
(ii) With felonies of the first and second degree, no overt act is required
E. Mens Rea
1. Common Law
a. It is a specific intent crime.
b. Criminal conspiracy does not occur unless two or more person
(i) Intent to agree
(ii) And intent that object of their agreement
c. Thus police officers do not intend to conspire
d. Not guilty of one crime that they are charged with if it is not the object of their agreement. (ex.
Intent to burn down building but no intent to murder)
e. The requisite purpose may be inferred if the person furnishing the service or instrumentality
promotes the venture and has a stake in the outcome.
f. Attendant circumstances?
(i) The federal conspiracy statute does not require any greater mens rea as to an attendant
circumstance than is embodied in the substantive offense itself.

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 g. Corrupt-motive doctrine
(i) In addition to the usual mens rea requirement of conspiracy, the parties to a conspiracy must
also have a corrupt or wrongful motive for their actions.
(a) Ignorance of the law is okay if they agree to do a morally innocent but illegal act.
2. MPC
a. Not guilty of conspiracy unless the conspiratorial agreement was made with the PURPOSE of
promoting facilitating the commission of the substantive offense.
b. Not guilty of conspiracy unless The object of the agreement was to bring about the prohibited
result or to cause the prohibited conduct to occur even if such purpose is not an element of target
offense.
c. Conspiracy does not exist if a provider of goods or services is aware of but fails to share
another’s criminal purpose.
d. No corrupt motive doctrine.
e. Oes not determine culpability for A/C.
F. “Plurality” Requirement
1. Common Law
a. It is impossible for a man to conspire with himself.
b. Conspiracy fails in the absence of proof that at least two persons possessed the requisite mens
rea. (Undercover cops)
2. MPC
a. Establishes unilateral approach
b. Forces inquiry on the culpability of the actor rather than the group.
c. Guilty if he agrees with such other person, even police officer.
G. Parties to a Conspiracy
1. The act of one conspirator in furtherance of the agreement renders a prosecution permissible against
every other party.
2. Structure
a. Wheel Conspiracy
(i) Center is one person who transacts illegal dealings with various other persons. One must be
able to draw a line around the wheel.
(ii) Single shared criminal objective
b. Chain Conspiracy
(i) Several layers of personnel dealing with a single subject matter instead of a single person.
c. Chain-Wheel Conspiracy
(i) Has elements of both
3. The parties need know the identity or existence of the others. Just need general awareness of both the
scope and objective of the enterprise.
4. MPC
a. If a person guilty of conspiracy knows that a person with whom he conspires to commit a crime
has conspired with another, he is guilty of conspiring with such other person whether or not he
knows their identity.
H. Objectives of Conspiracy
1. Common Law

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 a. Plan to violate two criminal statutes does not itself convert a single conspiracy with multiple
objectives into multiple conspiracies with a single objective each.
2. MPC
a. Multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are
(i) Part of the same agreement OR
(ii) Part of a continuous conspiratorial relationship
I. Defenses
1. Impossibility
a. Common Law
(i) Factual or legal impossibility does not negate the dangerousness of the agreement
b. MPC
(i) No recognission of defense of impossibility
2. Abandonment
a. Common Law
(i) Once conspiracy offense is complete abandonment is not a defense.
(ii) Withdrawal from conspiracy may avoid liability for subsequent crimes committed in
furtherance. Once a person withdraws, the statute of limitation begins to run.
(iii)Requires communication to each co-conspirators.
b. MPC
(i) Renounce of purpose and thwarts the success of conspiracy is a defense.
3. Wharton’s Rule
a. Common Law
(i) An agreement by two persons to commit an offense that by definition requires the voluntary
concerted criminal participation of two people cannot be prosecuted as a conspiracy.
(a) Adultery, bigamy, incest, dueling, sale of contraband, receipt of bribe.
(b) Exception:
(1) If more than the minimum number of persons necessary to commit an offense agree
to commit the grime, rule is not triggered.
(2) Does not apply if two persons involved in conspiracy are not th two people necessary
involved in committing the substantive offense.
b. MPC
(i) Not recognized
4. Legislative Exemption Rule
a. CL
(i) May not be convicted if conviction would frustrate a legislative purpose to exempt her from
prosecution.
b. MPC
(i) Person may not be prosecuted if she would not be guilty of the consummated offense under
the law defining the crime or as accomplices in its commission.

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