1: INTRODUCTION

A. Nature of Criminal Law

1. Uniqueness of Criminal Law
a. Moral Condemnation
b. Redress, punishment and injury are social rather than personal.
c. Reasonable doubt requirement of proof
2. Common law
a. Most states have statutory penal codes rather then the common law.
b. At common law, there were only felonies (capital crimes) and misdemeanors.
3. Modern Penal Codes
a. Felonies
b. Misdemeanors
c. Violations
B. Trial by Jury
6th Amendment guarantees a right to trial by jury for all crimes except non-petty offenses.
C. Proving Guilt
The State has the burden to prove each element of a crime beyond a reasonable doubt. In re
Winship

2: PRINCIPLES OF PUNISHMENT
A. Justifications for punishment
1. Social punishment replaces personal vengeance.
2. Punishment leads to a just society. (U)
3. Punishment minimizes mischief/Deterrence (U)
4. Criminals deserve punishment as their just desert for harming society (R)
B. Proportionality
1. Punishment should “pay back” society. (R)
2. Punishment should outweigh the profit of the crime. (U)
3. The greater the crime the greater the punishment (U)
4. Punishment should induce criminals to choose the lesser crime (U)
5. Set punishment so that criminal does not more than what is necessary. (U)
6. Punishment should be as minimal as possible to achieve goals. (U)
Remember: There are crimes that can not be deterred.
3: LEGALITY
A. Rationale:
1. You can not deter persons from criminal act unless people know what is criminal. (U)
2. Without legality, there is no choice and without choice there is no basis for moral blame. (R)
3. Legality strives to balance the tension between allowing State to convict persons and
protecting individual autonomy.
B. Statutes
1. Should be clear and unambiguous.
2. Ambiguous and outdated statutes should be changed by the legislature and not judicial fiat.
C. Lenity
1. Originally, the lenity doctrine requires criminal statutes to be interpreted strictly against the
state.
2. Generally, courts interpret the law favorably for the defendant in tiebreaker situations, after
looking at legislative intent, etc.
3. MPC does not refer to lenity but to the statutes fair import. Think about what furthers the aim
of the law rather than what frustrates it.

4: ACTUS REUS
A. Definition: a voluntary act that results in the social harm of an offense.
B. Voluntary Act
1. At common law, a voluntary act is a “willed muscular contraction.”
5: Mens Rea (Mistake of Law)6: Causation Page 1/24
 2. Under MPC, a voluntary act is not defined except by a partial list of what constitutes involuntary
acts.
3. Involuntary acts are reflexes, spasms, acts while the actor is unconscious or asleep, or under
hypnotism.
4. Conscious and habitual acts are considered voluntary.
5. Possession is an act if the person is aware of the possession and has had sufficient time to
dispossess herself of the item.
6. The voluntary act does not have to be the last act.
C. Omissions
1. An omission is generally not considered sufficient for an actus reus.
2. Rationale:
a. Pragmatically, it is difficult to determine mens rea of an omission.
b. Pragmatically, it is difficult to establish causation for an omission.
c. Prosecuting omission is an inefficient use of public resources. (U)
d. Morally, there is a difference between causing harm and not preventing harm.
e. Morally, the criminal law should refrain from turning all moral duties into legal duties.
f. Utilitarian,
3. Rebuttal:
a. A duty to act would promote social cohesion.
b. Both an act and omission involve making a moral choice.
4. Exceptions:
a. Statutory duty
b. Common law duty, e.g. special relationships.
c. contractual duty
d. Omissions following an act
(a) Creation of risk or causation of harm creates a duty
(b) Once you voluntary start to give help, there is a duty not to leave the victim is a worse off
position.
D. Causation (see Causation)

E. Social Harm
1. Social harm is the negation, endangering, or destruction of an individual, group, or state interest
that is deemed to be socially valuable.
2. Social harm can be tangible or intangible.

F. MPC § 2.02
1. Under MPC § 2.02(4), possession is an act if procured knowingly, received the thing possessed, or
was aware of the control for a sufficient period of time to be able to terminate possession.

G. State has the burden of proof.

5: MENS REA
A. Common Law
1. Culpability Approach:
a. Broad mens rea is a “general immorality of motive”, “a vicious will”, “an evil mind.”
b. A ∆ can be convicted if actus reus is committed with a morally culpable state of mind.
c. E.g. The trial judge was using a broad definition of mens rea in equating “malicious
administration of a noxious thing” and the moral culpability of a thief in Cunningham.
2. The Elemental Approach:
a. Narrow mens rea is the particular state of mind provided for in the definition of the offense.
b. A jury can infer the natural and probable consequences of any act and can decide that the ∆
did thus intended the same.

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 c. E.g. Conley - the mens rea for aggravated battery had to be an intent to cause a disablement
or a practical certainty that some disablement would occur.
3. Rationale:
a. It is impossible to deter people who do not possess a culpable state of mind. (U)
b. It is wrong to punish those who do not have a culpable state of mind. (R)
4. Rebuttal
a. Punishment would deter others. (U)
5. “Intent”
a. a desire to cause the social harm;
b. to act with knowledge that the social harm is virtually certain to occur as a result.
6. “Wilful”
a. Wilful is often synonymous with intentional.
b. Willful can also mean to act with a bad purpose, or an evil mind, or a purpose to disobey the
law.
7. “Knowledge”
a. A person has knowledge of a material fact if he is aware of the fact or he correctly believes it
exists.
b. A person is said to have knowledge if he is aware of probable fact and deliberately avoid
confirmation
c. Rationale:.
i. FOR: We want to deter people from willful blindness.
ii. AGAINST: Punishes for negligence in failing to confirm.
iii. AGAINST: Wilful blindness is not synonymous with knowledge and we should not
pretend that it is.
8. “Transferred Intent”
a. If ∆ intends a social harm toward one person and instead inflicts the same social harm of a
different person, the ∆ ’s intent is “transferred” as if “his aim had been more accurate.”

b. Intent can not be transferred when:

i. ∆ misidentified the victim rather than mis-aimed because the transfer is unnecessary.
ii. ∆ also causes harm to the original victim because the intent is “used up.”
iii. The definition of the crime precludes transfer.
e.g. assault = the beating a any person with the intent to maim such person.
iv. The social harm intended is different type of social harm that resulted, e.g. the intent to
kill a dog can not be transferred to the intent to kill a human being.

9. Statutory Interpretation
a. Look at legislative intent
b. Look at grammar rules
i. Adverbs modify every element that follows but do not modify phrases that precede.
ii. Look out for parenthetical phrases
c. What are the underlying criminal assumptions, e.g. that each element requires a mens rea.
d. MPC
i. 2.02(4) requires the mens rea is applied to all material elements unless otherwise
obvious.
ii. Placement of a mens rea term in the middle of a statute is sufficient to distinguish the
effect of the term on the material elements.
iii. If not otherwise stated, recklessness is the minimum mental state needed. Negligence has
to be explicit in the law.
iv. In the Yermian problem, the court found that the insertion of the word knowingly
constituted contrary purpose.
10. General Intent
a. Historically, a crime that required “culpability” mens rea was a general intent crime.
b. Nowadays, all crimes which are not specific intent crimes are general intent crimes.
11. Specific Intent crimes are crimes that include:
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 a. an intent to do some future act
b. an intent to achieve a future consequence
c. knowledge of a statutory attendant circumstance

B. MPC § 2.02
1. In General
a. MPC is completely elemental.
i. 2.02(3) requires the requisite mental state with regard to each material element of the
crime. Remember §1.13(1) re: what is material.
ii. 2.02(5) says that there’s no mens rea needed for “violations” which are crimes which carry very small penalties.
b. MPC § 2.02 ____ states that a higher mens rea is sufficient to establish any lesser mens rea.

2. “Purposely”
a. ∆ acts purposely with respect to a conduct or result if it is his conscious object to engage in
the conduct of that nature or cause such a result.
b. ∆ acts purposely with respect to an attendant circumstance if he is aware of the
circumstance or believes or hopes that it exists.

3. “Knowingly”
a. ∆ acts knowingly with respect to results if he is practically certain that his conduct will
cause the result. (Subjective!)
b. ∆ acts knowingly with respect to an attendant circumstance or conduct if he is aware that his
conduct is of that nature or that the circumstance exists. (Subjective!)
c. Knowledge is satisfied by a knowledge of a high probability of its existence unless the 
actually believes it does not exists. MPC § 2.02____.

4. “Recklessly”
a. A person acts recklessly if he consciously disregards a substantial and unjustified risk that
the material element exists or will result from his conduct.

5. “Negligently”
a. A person acts negligently if he should have been aware that a substantial and unjustifiable
risk that the material element exists or will result from his conduct.

6. Reasonable person is put in the actor’s situation.

a. Physical characteristics are generally included.
b. Hereditary factors are not included.
7. Statutory Interpretation
iii. 2.02(4) requires the mens rea is applied to all material elements unless otherwise obvious.
iv. Placement of a mens rea term in the middle of a statute is sufficient to distinguish the
effect of the term on the material elements.
v. If not otherwise stated, recklessness is the minimum mental state needed. Negligence has
to be explicit in the law.
vi. In the Yermian problem, the court found that the insertion of the word knowingly
constituted contrary purpose.
C. Strict Liability Crimes do not contain a mens rea requirement and are generally disfavored.
1. State can overcome the presumption requiring a mens rea if:
a. The crime is not derived from common law;
b. There is legislative policy that would be otherwise undermined.
c. The standard imposed is reasonable and properly expected.
d. The penalty is small.
e. Conviction doesn’t gravely besmirch.
2. Strict liability offenses are usually public welfare offenses, i.e. small malum-in-se statutes.
3. The MPC approach eliminates strict liability crimes except for “violations.”
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 D. Mistake of Fact
1. A mistake of fact is not a true defense. It is a only a defense in the sense that the defendant has the
initial burden to produce evidence that he was mistaken, but the prosecutor has the burden of
persuasion.
2. Common Law Approach
Determine whether crime is strict, specific, or general intent
a. If Strict Liability, the mistake of fact is never a defense.
b. If Specific Intent, a reasonable or unreasonable mistake of fact that negates the
mens rea is a defense.

E.g. In Navarro, larceny was not satisfied if Navarro thought he had permission or
thought the wood was abandoned.
In Cheek, the tax law demanded a “voluntary, intentional violation of a known legal
duty.” ∆ ’s mistake, though unreasonable, negates the knowledge required.
c. If specific intent but the mistake does not negate the mens rea because the mistake was
regarding a general intent section of the crime, the rule for general intent applies.

d. If General Intent:
i. A reasonable mistake is a defense, but an unreasonable mistake is not a defense.
ii. CRITIQUE: It results in punishment for negligent, i.e. unreasonable behavior. (could
even be only civil negligence too)
iii. CRITIQUE: It punishes the ∆ equally with the ∆ who acted with intent.
e. Moral Wrong Doctrine
i. If the mistake was reasonable, ask: What did the ∆ think that he was doing? If that
act is immoral, then ∆ can be help to be culpable.
ii. CRITIQUE: Conflated immoral conduct into illegal conduct in violation of legality.
iii. CRITIQUE: Not all actors agree on what actions are immoral.
f. Legal Wrong Doctrine
i. If the mistake was reasonable, ask: What did the  think that he was doing? If
that act is illegal, then  can be held to be culpable.
ii. CRITIQUE: It punishes at the higher grade offense even though his mens rea was
only at the lesser level.
3. MPC § 2.04
a. The MPC rule is stated in 2.02. A person is not guilty unless he acts with the required mental
state with regard to each material element of the offense
b. MPC 2.04(1) says that if a mistake negates the required mental state of any of the elements of
a crime.
c. MPC Exception: this defense isn’t available if the actor would be guilty of another crime if
the circumstances were what he thought them to be. The person is only punished for the lower
offense.

E. Mistakes of Law
1. General : Mistake of law defense is usually used to deal with charges under a different law-for
example bigamy versus divorce. (I thought my divorce was legal so I didn’t even consider
bigamy)
2. The Common Law
a. Mistake of law, even if reasonable, is not defense.
α i. Rationale: We don’t want to encourage ignorance of the law. (U)
β ii. Rebuttal: It is unjust to punish the blameless (R)
c. Exceptions:
i. Reasonable Reliance
ii. Fair Notice (Lambert Principle)
i. Different law mistake that negates mens rea, e.g. Cheek.
3. The MPC
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 a. Mistake of Law is no defense. § 2.02(9)
b. Exceptions:
i. Different law
ii. Fair Notice : the statute was not known to the ∆ ; not published and not reasonably available.
iii. Reliance on an official interpretation.

6: CAUSATION
A. In General
B. At Common Law
1. Actual Cause : But for ∆ ’s act, would the social harm have occurred when it did and how it did?
2. Proximate Cause is determined by weighing:
a. Did the ∆ have only a minimal role in causing the social harm?
b. How foreseeable is the intervening cause?
i. If the intervention is a response to ∆ ’s act, then ∆ is a proximate cause.
ii. If the intervention is a coincidental to the ∆ ’s act, then ∆ may not be a proximate
cause.
c. What was the ∆ ’s mens rea?
d. Did the V. come to a place of apparent safety?
e. Was there “free, deliberate response” by someone other than the ∆ ?
f. Omissions are never a superseding intervening cause, even if someone else had a duty to act.
(Nothing can not negate an actual cause.)
C. MPC § 2.03
1. Actual Cause: But for ∆ ’s act, would the social harm have occurred when it did and how it did?
2. Proximate Cause
i. P or K § 2.03(2)(b) Common sense and fairness indicate that ∆ ’s acts are not too remote
to have a just bearing of the ∆ ’s liability.
ii. R or N § 2.03(3)(b) same
3. For felony-murder rules, the actual result has to be a probably consequence of the ∆ ’s act.
7: CRIMES
7[A]: CRIMINAL HOMICIDE
A. Overview
1. Year and a Day Rule
2. Human being does not include a fetus.
3. Death is brain dead.
B. At Common Law
1. Murder is “killing of a human being by another human being with malice aforethought.”
a. Express malice murders (1°) require:
i. The “intent to kill”
ii. “Deliberation and premeditation”;
Deliberation : cool and calm reflection

Premeditation :

iii. Committed with an enumerated felony.

b. Implied malice murders (2°) require
i. The “intent to cause grievous bodily injury
ii. A “depraved heart” killing (i.e. extreme recklessness that shows an extreme
indifference to human life.)
iii. Committed with a felony.

2. Manslaughter is the “unlawful killing of a human being by another human being without malice.”
a. Reckless
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 b. Heat of Passion: A murder that is committed because of “adequate provocation” can be
mitigated to manslaughter.
i. A “state of passion” is any violent, intense emotion including fear, jealously, and
wild desperation.
ii. Adequate provocation
(1) Originally:
• aggravated assault/battery, mutual combat, commission of a serious crime
against a relative, illegal arrest, and direct witness of spousal adultery.
• Trivial battery, information re: spousal adultery, witness of non-spousal
adultery, and “mere words” were not sufficient.
(2) Modern law compares ∆ to an ordinary, sober, person of average disposition
and intellect.
• Standard has become more subjective over time (pro-∆ ).
• Subjective standard is at odds with the overall objective reasonable person.
• Abnormal mental states are not allowed, e.g. lesbian lovemaking case.
• Physical characteristics are generally included as being part of the whole story,
e.g. Goetz case.
• Cultural elements are sometimes admissible.
iii. Act must be sudden.
iv. Causation is required between the provocation and the killing.

3. Involuntary Manslaughter (negligent killing)

a. Criminal negligence: ∆ should have been aware of a substantial and unjustified risk.
b. Reasonable Person Standard
i. FOR: We hold people to the standard of a reasonable person out of fair treatment
goals.
ii. FOR: Negligence allows ∆ s who cause a social harm to repay society.
iii. AGAINST: It is unfair to punish persons who cause harm without culpable intent or
who fail to live up to a standard that they are incapable of.

4. FELONY-MURDER Unintentional killings due to unlawful conduct

a. Inherently Dangerous Felony:
If a killing occurred during the commission of a felony that can not be committed without
significant risk or a high probability of death, then the ∆ s can be charged with murder.
b. Independent Felony:
i. If a killing occurs during the commission of a felony where the intent of the felony is
not independent from that of the killing, the felony-murder rule can not be applied.

ii. Rationale: We shouldn’t bootstrap murder convictions.

iii. Usually is an assault with a deadly weapon issue.
E.g.
• Ireland: The underlying felony was assault with a deadly weapon (ADW), so the
court says that the felony is part of the murder.
• Wilson: A burglary with intent to ADW. The intended felony was ADW so no
murder.
• Sears: ∆ intends ADW but kills a bystander. No felony murder.
χ • Burton: ∆ says armed robber necessarily entails ADW but the court holds
that armed robbery has an independent felonious purposes (and he could have made
the commission safer) therefore, felony-murder rule applies.
c. Misdemeanor-Manslaughter Rule
An accidental homicide that occurs during the commission of a misdemeanor may be
upped to manslaughter.
d. Rationale:
iv. FOR: Deters accidental or negligent deaths as part of the felony. It doesn’t deter the
felony but it might deter more dangerous activity during the commission of the
felony.
v. FOR: Makes mens rea element irrelevant and thus, prosecutions are easier.
vi. AGAINST: Rule is unnecessary because state should be required to prove the mens
rea element. (Dressler)
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 AGAINST: Deterrence value for felons is small. (Dressler)

C. MPC § 210
1. Difference with common law
a. No Year and a day restriction
2. Murder requires that that the ∆ kills another and without justification, excuse, or mitigating
circumstance either:
a. purposely,
b. knowingly, or
c. with extreme recklessness (i.e. under circumstances that show an extreme indifference to
human life)
d. Extreme recklessness is presumed if the homicide occurs while ∆ is engaged in or an
accomplice to the commission, an attempt, or flight from a dangerous felony that is
enumerated in the statute MPC § 210.2(1)(b).
3. Manslaughter
a. Reckless killing of another.
i. ∆ kills another with a conscious disregard for human life (but falls short of the
extreme indifference required for murder.)
ii. Reckless murder requires the inclusion of reckless manslaughter.

b. A homicide that is otherwise murder but as a result of an “extreme mental and emotional
disturbance.”
i. Requires that the ∆ experience “intense feelings” sufficient to cause the loss of
control at the time of the killing. (Subjective)
ii. Requires that there be a reasonable explanation or excuse for the EMED. (Objective
but determined from the ∆ ’s situation under circumstances as the ∆ believes them
to be.) Always should be a jury question.
• Doesn’t include idiosyncratic moral values.
iii. ∆ has burden to produce evidence of EMED but the State has the burden of
disproving the defense beyond a reasonable doubt.
iv. Differs from the common law because (1) specific provocation is not required; (2)
does not require provocative act by the decedent; (3) does not require a particular
kind of provocation and words can suffice; and (4) there is no rigid cooling off
period.
4. Negligent Homicide
a. Is equivalent to involuntary manslaughter at common law.

7[B]: RAPE
A. ACTUS REUS
1. Modern social harm is:
a. Violence of a battery or aggravated battery.
b. Intrusion into personal privacy as an assault on the inner psyche
c. Intrusion into the personal autonomy of a woman’s right to choose sexual partners.
d. Act of gender domination.

2. Common law definition is “sexual intercourse with a woman (not one’s wife) forcible and
against her will.” The social harm was a property offense against the victim’s father or husband.

3. Modern Statutes definition usually contains sexual intercourse with a woman not one’s wife
forcibly, against her will, or without her consent as elements.

4. Marital Immunity Rule: A man can not rape his own wife.
a. FOR: A wife is the property of her husband.
b. FOR: A wife through the marriage contract gives husband consent.
c. FOR: The rule promotes reconciliation. REBUTAL: Such a woman is unlikely to prosecute.
d. FOR: It prevents governmental intrusion into marital privacy. REBUTAL: Protecting the
safety of the women is a greater interest.
e. FOR: It would allow wife to blackmail husband in divorce proceedings. REBUTAL: The law
shouldn’t take side with the rapist on the assumption the wife will misbehave and there is no
empirical evidence that this is so.
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 f. FOR: Nonconsensual intercourse is a less serious harm. REBUTAL: Even so, the reduction of
the woman’s autonomy and the domination by her husband should be denounced by law.

5. Forcible Rape requires resistance that is overcome by the actual use of force or the threat of
serious bodily injury to the female (or possibly to a 3rd person).
a. A non-physical threat is not sufficient.
b. Fear of a serious bodily injury is not sufficient. The threat must be objective, i.e. conduct that
places the woman in reasonable apprehension for her safety.

6. Modern Reforms to Forcible Rape definition and requirements include:

a. Proof of resistance abolished.
b. Force defined as “lack of consent” which includes situations where the woman can not give
consent, resist, or when it is carried out by surprise.
c. At the far end is the MTS case, where force was defined as sexual intercourse in the absence
of affirmative and freely given permission.
7. Fraud in the inducement is not rape.

8. Fraud in the factum

a. A ∆ commits rape if the woman’s consent is invalid as a result of fraud, i.e. that she is not
aware she has consented to sexual intercourse.
b. A ∆ who has sexual intercourse with a woman who believes that the ∆ is her husband is
generally considered to have committed a rape by fraud in the factum.

B. MENS REA
1. Rape is a general intent crime, i.e. a ∆ is guilty if he possesses a morally blameworthy state of
mind regarding the female’s lack of consent.
2. A genuine and reasonable belief regarding consent is a defense.
a. Although a minority view is that a reasonable belief is not a defense.
b. In England, a genuine but unreasonable mistake is a defense. (Regina v. Morgan)
3. A ∆ is not entitle to a mistake of fact jury instruction unless there is substantial evidence of
equivocal conduct such that a reasonable person would believe she had consented.
4. Factors that demonstrate a genuine and reasonable belief are:
a. If the ∆ and female have had an ongoing consensual sexual relationship and the female does
not express opposition on the particular occasion;
b. The possibility of “token resistance” on the part of the female.
c. The ∆ reasonably could believe that permission ad been given.
C. PROVING RAPE
1. Corroboration:
a. At common law and the general rule is that corroboration was not required.
b. A minority and the MPC require corroboration.
2. Rape Shield Laws
a. Evidence is admissible if it is relevant, i.e. if it tends to prove or disprove any disputed fact at
issue.
b. Rape shield laws (absent good cause)
i. prevent evidence of prior sexual history with others;
ii. prevent reputation for chastity
iii. allow evidence of sexual history with the ∆ .
c. A judge can exclude relevant evidence if it’s value is outweighed by the prejudicial effect.
Judge balances the ∆ ’s 6th amendment right to cross-examine with the V.’s right to privacy
and the prejudicial effect.
E.g. Colbath where the V. had “left” the tavern with other men, behaved provocatively toward
the ∆ , and the ∆ ’s girlfriend attacked the V. in the ∆ ’s trailer after the incident.
3. Rape Trauma Syndrome
a. Experts are generally allowed to produce evidence about different reactions to a rape.
b. Experts are not allowed to testify whether a rape occurred. (Jury question.)

4. Cautionary Jury instruction

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 a. Some states and the MPC

C. MPC § 213
1. RAPE MPC § 213.1(1):
A ∆ is guilty of rape when he has sexual intercourse with a female not his wife and
a. he compels her to submit by force or threat of death, harm, pain or kidnapping of V or 3rd
person.
i. The focus is on the ∆ ’s acts and not the V.’s lack of consent or resistance.
ii. The threat can be directed toward a 3rd person.
b. ∆ administers V. drugs without her knowledge that impair her ability to appraise or control
the situation;
c. the female is unconscious;
d. the female is < 10 years old.
2. Degrees of Rape:
a. Rape that the ∆ inflicted serious bodily injury on the V. or another is a 1° degree felony.
b. Rape where the ∆ and the V. was not a voluntary social companion who had previously
permitted the ∆ sexual liberties is a 1° degree felony.
c. All other rape is a felony of the 2°.
3. Marital immunity rule
a. extends to persons living together as man and wife (§213.6(2);
b. is not applied if there is a judicial decree of separation (§213.6(2)).
4. Fraud in the Factum is not rape, see gross sexual imposition (§ 213.1(2)).
5. Corroboration required and cautionary jury instruction given.
6. Gross Sexual Imposition MPC § 213.1(2)
a. Threat that would prevent resistance by a woman of ordinary resolution;
b. mental illness or defect that makes her unable to appraise the nature of her conduct;
c. Fraud in the factum.
7. Other Sexual Offenses

8: JUSTIFICATION DEFENSES
A. In General
1. Justifications
a. Justifications can be repealed but can not be denied retroactively.
b. Justifications extend to accomplices and to 3rd parties but excuses do not.
c. Rationales:
• Public Benefit Theory
• “Moral Forfeiture”
• Moral Rights
• Superior Interests
2. Excuses
a. Reasons for the distinction: people should choose justifiable paths.
b. Rationales
3. Burden of Proof
a. For a true defense, ∆ must prove the burden of production but the State must disprove
beyond a reasonable doubt.
b. Patterson requires that the State prove all elements of an offense but a statute can reallocate
the burden to the ∆ .
c. The legislature can not reallocate the burden of persuasion for a failure of proof defense.

8[A]: SELF-DEFENSE
A. Common law
A non-aggressor is justified in using proportional force and he reasonably believes that such force is
necessary to protect himself from imminent use of unlawful force by the other person. (If any element
is missing, the defense is not available.)
1. Aggressor/Non-Aggressor (and regaining the right to self-defense)
a. A person is not an aggressor if his conduct is lawful.
b. A “deadly aggressor” is a person whose affirmative unlawful act is reasonably calculated to
produce an affray foreboding fatal consequences.

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 i. A deadly aggressor may regain his right to self-defense by withdrawing from the
affray and successfully communicating this facts (expressly or impliedly) to his
intended victims.
c. A “non-deadly aggressor” is a person whose unlawful act is reasonably calculated to produce
an affray foreboding injurious consequences, i.e. a person who starts a non-deadly conflict.
i. Some courts says that a non-deadly aggressor immediately regains his right to self-
defense if attacked by deadly force.
ii. Other courts require the initial aggressor to retreat if possible. If he does not retreat
and kills, the killing is usually considered manslaughter either on the grounds that
there was “adequate provocation” or because there is partial self-defense.
(Note: Dressler says partial self-defense is BAD because it says ∆ is justified but
should be punished which rings of excuse.)
2. Proportional Force Required
a. Deadly force is force that is likely to cause death or grievous bodily injury. Deadly force in
self-defense is justifiable only if threatened with deadly force.
3. Reasonable belief
a. A person is justified as long as he has reasonable grounds (and actually does believe) that the
force is necessary.
b. Some jurisdiction allow an unreasonable belief to mitigate the killing to manslaughter.
c. Objectiveness/subjectiveness of the reasonable person is undergoing change.
Jury can consider:
i. the physical movements of the aggressor,
ii. the physical characteristics of both parties, and
iii. past experiences
iv. but what about the reliability of information, race, sex, clothing and body language?
3. Imminent
a. Imminent force is force that will occur “immediately”, “upon the instant”, or “at once.”
4. Unlawful
a. Force must be unlawful, i.e. unjustified.
b. Police force is considered lawful.
c. Excessive force by the police is not justified.
d. Conduct that constitutes a tort or crime is unlawful even if the actor has an excuse.
5. Retreat possibilities
a. Generally, a non-aggressor is justified even though he could safely retreat.
Rationale:
i. FOR: Right should not give way to Wrong
ii. FOR: It is the “manly” response to fight, rather than retreat.
b. Minority rule is that an innocent person must retreat if possible to do so in complete safety.
(As a practical matter, retreat is rarely required since it is difficult to prove that the person
could have retreated in complete safety.)
Rationale:
i. FOR: Human life outweighs “manliness.”
ii. FOR: Retreat doesn’t increase risk because the requirement is only applicable when
a person can do so in complete safety.
c. The Castle Exception where retreat is required.
i. A person in his home is not required to retreat even if he could do so in complete
safety.
ii. Most states do not require a person retreat even when the aggressor is a co-dweller.

d. As an incomplete defense.
i. When a non-deadly aggressor is a victim of a deadly response, he must retreat to any
place of known safety before using deadly force. If he does not, he could be
convicted of manslaughter.
ii. If the belief is not reasonable (either because V. intended no harm or non-deadly
harm or because non-deadly force would have been sufficient), the killing may be
mitigated to manslaughter.
6. Innocent Bystanders
a. When a ∆ is justified in killing V. then the justification transfers if ∆ kills an innocent
bystander instead.

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 b. If ∆ is reckless though, ∆ may be liable for manslaughter or reckless endangerment.
7. Resisting Unlawful Arrest
a. Deadly force is justifiable against excessive police force.
b. Non-deadly force is justifiable against unlawful police force. If deadly force is used, then ∆
is guilty of manslaughter.
c. Dressler says this is better as an excuse than a justification.

B. Self-Defense as an excuse
1. Causation theory: But for the V’s aggression , the ∆ would not have killed (in self-defense), thus
he should not be blamed.
2. Character theory: The aggressor and not the innocent ∆ demonstrate the bad moral character.
3. Choice theory: The ∆ did not really have a “choice” not to kill, i.e. it is a primary law of nature to
protect one’s life.

C. Self-Defense as a Justification
1. It is better that the aggressor be killed than a non-aggressor (U).
REBUTTAL: Matters are rarely that clear.
2. Self-defense rule preserves life by deterring unlawful aggression (U).
REBUTTAL: The defense has little deterrence effect because a person under attack will defend
his life even without the defense.
3. The aggressor “forfeits his right to life.” (R)
4. The aggressor breaches the social contract, therefore the other has a right to vindicate his
autonomy, i.e. the aggressor puts the parties back into a state of war.
REBUTALL: This contradicts the proportionality requirement.
5. The killing of the aggressor is a “greater moral good” because the right of the innocent is morally
superior than that of the aggressor. (Same as forfeiture.)
6. Self-defense is private punishment of the aggressor.
REBUTALL: Again, this is not consistent with the proportionality requirement. Also, the criminal
law system is supposed to supplant “vengeance” and personal justice.

D. MPC
1. A person is justified if he believes that force is immediately necessary to protect himself against
the exercise of unlawful force on the present occasion. (MPC § 3.04(1))
a. The belief can be unreasonable.
BUT the defense is imperfect because under MPC § 3.09(2)
i. If D. is negligent and the offense’s mens rea requires negligence, then the defense is
not available.
ii. If D. is reckless and the offense’s mens rea requires recklessness, then the defense is
not available.
(Note: Dressler says this is appropriate since the mens rea is at the correct level of
culpability.)
b. Immediately necessary is sooner than imminent at common law.
c. Unlawful force
i. Resisting an unlawful arrest is not defensible (unlike at common law).
ii. Resisting excessive force or the belief of excessive force is permitted.
d. Deadly force
i. Requires that the actor have the purpose to cause or knows that he is causing a
substantial risk of death or serious bodily injury.
ii. The threat without purpose is not deadly force.
iii. Even if the outcome of death or serious bodily injury is unlikely, as long as actor has
the mens rea to purposely cause death or serious bodily injury, then deadly force is
justified.
iv. Deadly force is justified to protect against death, serious bodily injury, or forcible
rape, or kidnapping. (Kidnapping is problematic since is does not always require
deadly force to kidnap someone.)
v. Deadly force in self-defense is not allowed by a deadly aggressor, i.e. a non-deadly
aggressor retains his right of self-defense.
vi. Deadly force is not allowed if retreat to complete safety is available.
• But NOT REQUIRED in own one home;

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 • BUT retreat from home is REQUIRED if initial aggressor wished to regain right to
self-defense;
• REQUIRED to retreat from place of work.
• NOT REQUIRED if aggressor is a co-dweller.
e. On the present occasion
A deadly aggressor, like at common law, regains his right of self-defense if he breaks off
the struggle and V. continues to threaten him. V’s actions are considered a different
occasion or a distinct engagement.
f. Innocent Bystanders
i. If force would be justifiable against an aggressor but is recklessly or negligently used
to harm an innocent bystander, self-defense is not allowed where the offense as to
the bystander requires a mens rea of recklessness or negligence.
ii. But in reality, the unjustifiable element of recklessness or negligence may be
difficult to prove under such circumstances.

8[B]: DEFENSE OF OTHERS

A. Common Law
A person is justified in using force to protect a 3rd person from an unlawful attack when the 3rd
party could have used self-defense.
a. Limitations
i. The ∆ acts-at-his-peril in that if the 3rd party was not in fact justified in using
self-defense, then neither is the ∆ .
ii. Some jurisdictions follow the MPC by allowing the defense if it reasonably
appears to the intervenor that the self-defense would be justified.
Rationale:
• Allows intervention when harm might be averted. (U)
• Act at peril violates R’s belief in just deserts b/c ∆ thought he was Right.
B. MPC § 3.05(1)
A person is justified in using force to protect a 3rd person if:
a. he uses no more force than he would be entitled to use in self-defense based on the
circumstance as he believes them to be;
b. the 3rd party would be justified in using self-defense based on the circumstances as the ∆
believed them to be; and
c. he believes that the intervention is necessary for the protection of the 3rd party.
d. Retreat by the ∆ is required only if he knows it will assure the 3rd party’s safety.
e. ∆ must attempt to secure the 3rd party’s retreat when retreat is possible and ∆ is aware that
the 3rd party can retreat safely.
f. If ∆ ’s belief is reckless or negligent, then ∆ can be charged with a reckless or negligent
mens rea offense.

8[C]: NECESSITY
A. Common Law
1. A person is justified in violating the law if:
a. There is a clear and imminent danger
b. The ∆ must reasonably expect that his action will be effective in reducing the harm;
c. There is no effective, legal alternative for averting the harm;
d. The harm caused by the ∆ must be less than the harm sought to be avoided;
i. harm = “reasonably foreseeable harms”
ii. Jury determines if ∆ ’s value judgement was objectively correct.
e. If lawmakers already determined the issue, then necessity can not be used
E.g. medical marijuana;
f. ∆ must not be at fault in creating the situation.
2. Minority Limitations
a. Necessity applies only to natural forces;
b. Necessity can not apply to homicide situations;
c. Necessity is limited to protection of person and property interests only.

B. MPC § 3.02(1)
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 1. Necessity requires:
a. The ∆ must believe that his conduct is necessary to avoid harm to himself or another;
b. The harm caused by the ∆ is lesser than the harm threatened;
c. There is no legislative intent to exclude the ∆ ’s conduct.
2. The MPC does not indicate if the judge or the jury is supposed to determine which harm was
greater.
3. Difference with the common law:
a. Imminency is not required.
b. If the ∆ is at fault, the defense is still allowed. If the ∆ was R or N, then ∆ can be convicted
of a R or N crime.
c. Abolished the limitations re: natural forces, homicide, and personal or property interests.

9: EXCUSE DEFENSES
A. Definition: An excuse is that although there is social harm, the actor should no be blamed.
B. Theories:
1. Deterrence Theory: Excuses maximize the efficacy of individual choice. (U-Hart)
REBUTTAL: Punishment would deter others even more.

2. Causation Theory: A person should not be blamed for situations that the actor can not control.
REBUTTAL: In most situations, the actor does retain a significant degree of control. Also, I grew
up in a bad neighborhood becomes a defense.
3. Character Theory: People that have a valid excuse aren’t bad people who deserve punishment.
REBUTTAL: Does this lead to excusing everyone because of a bad environment?
And also why then do we punish good people anyway?
Are people responsible for their character in the first place?
4. Free Choice: We can’t blame people unless they have a free and fair opportunity to make decision.
(includes persons who are incapable of reason.)
REBUTAL: This doesn’t reflect past events. And people who lack a moral capacity can be
blamed.

9[A]: DURESS
A. Common law
1. At common law, a person is excused from a NON-homicide offense if:
a. Another person (think principal using an innocent instrumentality) threatened to kill or
grievously injure the actor or a 3rd party (usually a family member) unless the actor
committed the specified offense;
i. human (not natural) threat;
ii. threat of deadly force;
iii. may not be available if the 3rd party is unrelated to the actor;
iv. towards a specified crime.
b. The actor believed that the threat was genuine and the belief was reasonable.
c. The threat was present, imminent, and impending at the time of the criminal act;
(It must be operating on the actor’s will at the time of the criminal act.)
d. There was no reasonable escape except compliance;
e. The actor was not at fault.
2. Generally, duress is not an excuse for homicide.
3. Difference between Duress and Necessity
a. Duress does not require the actor to choose the lesser harm.
b. Duress is applied when the actor makes the wrong choice.
4. Rationale:
a. FOR: A person under duress is undeterrable by criminal sanction anyway. (U)
b. FOR: The ∆ is a victim and punishment is unnecessary pain. (U)
c. AGAINST: Duress undermines the moral clarity of the criminal law. (U)
d. FOR: Coerced people do not deserve punishment because they do not have a fair opportunity
to exercise her will to act lawfully. Note: this requires that the choice in not merely hard but
unfair. (R)

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 i. It is incorrect to say that the ∆ did not have the mens rea because the intent or
knowledge is usually present.
ii. It is not an involuntary act either because the ∆ had a “willed muscular contraction.”
iii. The ∆ also had “free will” in making her choice, i.e. she choose to violate the law.
B. MPC § 2.09
1. A ∆ is entitled to a duress defense if:
a. Another person compelled the ∆ to commit the offense through force or the threat of force;
(If the ∆ was wrong about the threat but the mistake is reasonable, then the defense is
available for P and K offenses, but not R or N offenses. (Comment to § 2.09) and
b. The threat would have compelled a reasonable person to commit the offense;
c. If the ∆ P, K or R placed herself in the situation that caused the duress, then no defense; BUT
if the ∆ N placed herself in the situation, then duress is available. (MPC § 2.09(2)).

2. Differences from the common law:

a. Abolishes the deadly force and imminency requirement for the reasonable person standard.
b. Allows the defense for murder prosecutions.
c. Threat can be to a 3rd person who is not related to the ∆ .
d. Can be a different crime (e.g. Prison escape coerced because of threat of sexual assault.)

3. Similarities with the common law

a. Force must be unlawful, therefore duress is not available for natural forces.
b. Threat must be of bodily injury and not property or any other interest.

9[B]: INSANITY
A. Overview
1. Competency to stand trial
a. ∆ is incompetent if ∆ can not rationally consult with attorney or cannot understand the
proceedings.
b. If incompetent, trial is delayed or ∆ goes to a mental hospital (temporary).
c. Competency is determined by the judge.
d. ∆ has to prove insanity by a preponderance or clear and convincing evidence.
2. Rationales:
a. Insane can not be deterred. (U)
b. Insane can not be blamed b/c there is no free will. (R)
B. At common law,
1. Definition: Insanity presupposes a “mental disease or defect” but the court leaves those terms
undefined and thus are capable of changing with the medical standards.
2. M’Naghten Test
The ∆ is excused if the ∆ has a mental defect that prevented the ∆ from knowing the nature and
quality of the act or if the ∆ did know, then the ∆ did not know the acts were wrong.
a. Knowing differs between courts.
• Some require cognitive knowledge (I knew that I was strangling her and I knew that the act
was wrong.).
• Others require affective knowledge (I am capable of evaluating my actions in terms of the
impact on others.)
b. “Nature and quality of the act”
• Did the ∆ think she was squeezing a lemon? or did she know that is was a neck?
c. “Wrong”
• M’Naghten opinion required a legal wrong.
• Other jurisdictions, require that the ∆ knows that society would disapprove even if the ∆
subjectively believes the act is moral.
d. Critics of the M’Naghten test say that it unrealistically requires total incapacity.

3. Irresistible Impulse Test (a third prong for M’Naghten)

The ∆ is excused if he:
a. acted from an irresistible and uncontrollable impulse,
b. lost the power to choose between right and wrong; or
c. his will was not under his control.
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 4. ALI / MPC Test
The defense is available if the ∆ laced a substantial incapacity to:
a. appreciate the criminality of the conduct, (Note: appreciate is broader than know);
b. conform her conduct to the law’s requirement.
c. The MPC test, unlike M’Naughten doesn’t require total incapacity.

5. Durham (Product) Test (Defunct)

The defense is available if the social harm was a “product” of the mental illness.
a. “Mental illness” was defined as “any abnormal condition of the mind which substantially
affects mental or emotional processes and substantially impairs behavior controls.”
b. Product means that “but for” the mental disease the ∆ would not have caused the social harm.
c. Critics of the test said that it gave too much authority to the experts. Also, it excluded
deterrable and morally blameworthy actors from responsibility.

6. Federal Test
The defense is available if the ∆ can prove by clear and convincing evidence that as a result of a
severe mental disease or defect, the ∆ is unable to appreciate the nature and quality of the
conduct; or the wrongfulness of the act.
a. Severe mental disease of defect may be superfluous because any disease that meets the
M’Naughten prongs is likely to also meet the severe requirement.
b. Appreciate = similar to ALI test and broader than the know in M’Naughten.
c. Nature and conduct = like M’Naughten, the cognitive incapacity must be complete.
d. Wrongness = like M’Naughten could be legal or moral wrongfulness.

7. Three states have abolished insanity as a defense although it is still allowed to prove the absence
of the necessary mens rea.

9[C]: DIMINISHED CAPACITY

A. Mens Rea Variant (common law)
1. This is not a real defense but is rather the State’s failure to prove mens rea element.
2. Limited Use General Rule
a. Diminished capacity is (arbitrarily) limited to murder prosecutions.
b. Diminished capacity only available to negates the specific intent of a crime, but not general
intent.
c. Practically, this reduces crimes to a lower mens rea variant but does not result in acquittals.

3. Defense to All Crimes Approach (a.k.a. MPC § 4.02(1))

Diminished capacity evidence is admissible whenever it is relevant to prove a lack of the requisite
mental state.

4. No Defense
Evidence is not allowed. This produces the anomaly that the ∆ could produce evidence to show
that he had no mens rea b/c of intoxication but can not produce evidence to show no mens rea b/c
of a mental illness.

B. Partial Responsibility Defense

1. The general rule is that the defense is not available.
2. California allows a murder to be mitigated to manslaughter on the grounds that a ∆ did not act
with malice if the ∆ is “unaware of or unable to act in accordance with the law” as the result of a
mental abnormality.
3. MPC § 210.3(1)(b) EMED
a. Murder will be mitigated to manslaughter if the ∆ acted with EMED and the EMED was
reasonable from the subjective point of view of the actor (no matter how inaccurate the
perceptions may be objectively.)
b. Chandra – like Galcia. If he really believed that there was a spell and that he needed to kill
Martinez, then the murder should have been mitigated.
C. MPC
See A3 and B3 sections above.
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10: MIXED JUSTIFICATION AND EXCUSE DEFENSES
10 [A]: Battered Women Syndrome (BWS)
A. As a Justification (similar to self-defense)
1. Three Situations and when self-defense instruction is allowed:
a. Confrontational - self-defense instruction is nearly always given (Dressler: And should be.)
because of the nature of the grounds.
b. Non-Confrontational - Self-Defense are sometime given and sometimes not given.
c. Hired Killings - Self-defense is not allowed.
2. Evidence:
a. History of abuse is admissible.
b. Expert testimony re BWS is sometimes permitted to
i. inform jury about BWS but not about whether ∆ suffers from BWS;
ii. give opinion about whether ∆ subjectively believed that force was necessary but not
about whether is was objectively reasonable;
iii. assist jury in determining whether the ∆ ’s beliefs were reasonable.
2. Justification on its own merits
a. The death of the abuser is a net social benefit (U). REBUTALL: It would be better to offer
sanctuaries for women and bring abusers to justice via the criminal system rather than
personal justice.
b. Abuser “forfeits” his right to life. (R) REBUTALL: But here the abuser is permanently rather
than temporarily forfeiting his right because how does the abuser “regain” his right? And also,
he would forfeit his life for anyone to kill him, not just the abused woman.
c. Abused women who kill are asserting their “moral right” to preserve autonomy. REBUTALL:
Slippery slope once we justify non-imminent killings.
3. Excuse defense is criticized b/c it says that the woman’s conduct was wrong.
C. As an excuse
1. An excuse might work better in non-confrontation situations because the woman will be allowed
to introduce evidence that excuse her actions.
2. Learned helplessness evidence buttresses an excuse argument more than a justification.
3. It could excuse a woman who commits crimes because of an abusive relationship, i.e. who is
coerced by her husband.
D. MPC § 2.09
1. As a justification
2. As an excuse
a. The reasonable person is objective and not the “reasonable woman suffering from BWS.”

10[B]: INTOLERABLE PRISON ESCAPE DEFENSE (Part justification/Part Excuse)

A. At common law, the defense is a blend of justification and excuse:
1. Justification
a. Problematic because prisoner’s record becomes relevant;
b. The prisoner must prove the existence of a greater harm;
c. But accomplices are also afforded the necessity justification.
d. The prisoner and the guard can simultaneously be justified and diametrically opposed.
2. Excuse
a. No harm balancing is required.
b. Criminal record is not admissible;
c. Excuse does not transfer to accomplices.
d. Guard can use reasonable force to prevent the escape and the prisoner is not entitled to resist.
B. Under MPC § 2.09:
1. A ∆ can commit an escape even if the threat is toward a different crime or act.
2. A ∆ can also choose to present necessity under § 2.09(4) as a lesser evil.
INCHOATE CRIMES
11[A]: ATTEMPT
A. In General: A line somewhere between how far we have come and how much remains to be done?
1. Definition: An attempt occurs when a person with the intent to commit an offense, performs any
act that constitutes a substantial step toward the commission of the crime.”, i.e. step (5) below.
2. Five steps of criminal activity:
(1) Conception
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 (2) Evaluation
(3) Forms the intent to proceed
(4) Preparation
(5) Commencement of the crime
(6) Completion
3. At common law, attempt was a specific-intent crime.
4. Punishment:
a. Originally, attempt was a misdemeanor.
b. Today generally, punishment of an attempt is usually less severe than commission of the
offense.
c. Rationales for less punishment:
i. Reduced punishment is an incentive to desist from completing the offense. (U)
ii. Social harm is less in an attempt so the punishment should be less. (R)
d. Rationales for equal punishment
i. Attempter is equally dangerous. (U)
ii. Persons mens rea (their just desert) is the same for an attempt as it is for the offense.
(R)
e. Under the MPC
i. Attempts are equal to the commission unless it is a 1° felony.
ii. An attempt for a 1° felony is a 2° felony.

5. Relationship between an attempt and the offense

a. Generally, the successful commission of the offense logically involves an attempt of the
offense.
i. Thus, in a prosecution for a crime of intent, the jury can return a verdict for attempt.
ii. Thus, where an attempt is charged, proof of the commission established the attempt.
iii. If a ∆ is charged with the substantive offense, the attempt merges into the offense.
b. A minority of jurisdictions hold an attempt and the offense as mutually exclusive.
6. Considerations:
a. Is the attempt dangerously close to causing a tangible harm? (Should the police realistically
intervene?) (Objectivists)
b. How serious is the crime? (The more serious, the earlier back an attempt will reach.)
c. How sure are we regarding the actor’s mens rea? (Subjectivists)
7. Rationale for Attempt
a. Deters people from attempting crimes. (U)
b. People who attempt crimes are dangerous and should be punished. (Subjectivist/U)
c. Provide basis for police intervention to prevent a greater harm. (U)
d. People who attempt but fail are morally culpable. (Subjectivist/R)
e. An attempt disturbs the wa, i.e. causes social harm & punishment is necessary to restore the
public order. (Objectivists/R)
8. Assault
a. Assault is an attempted battery, i.e. an attempt to intentionally place another in apprehension
of an imminent battery.
b. Attempt law does not apply to assault because assault law precedes the theory of inchoate
criminal responsibility.
c. As such, assault requires a greater degree of proximity to completion than attempts.
d. Also, some jurisdictions define assault as requiring the “present ability” and thus,
impossibility is a defense.
9. Attempted Assault
a. Some courts allow attempted assault, i.e. conviction of a person who endeavors to put herself
in a position where she can battery another but fails to do so.
b. Other courts say that an attempted attempted battery is absurd.

10. Inchoate crimes in disguise

B. Mens rea of an attempt
1. “Dual Intent” requires that the ∆ must:
a. intentionally commit the actus reus of an attempt; i.e. intentionally take a substantial step;
b. intend to commit the substantive offense.

2. Homicide
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 a. Attempted Felony Murder:
i. If the murder is not completed, then there is no felony-attempted murder.
ii. Some jurisdiction allow the attempt, but causal connection must be shown.
iv. At the fall end, if the specific act could (but does not) the death, felony murder can
apply.
b. Manslaughter
i. Attempted Voluntary Manslaughter is possible.
ii. Attempted involuntary manslaughter is not because it would require the person to
intend an unintended crime.
3. Conduct Crimes
Little case law, but Dressler says that attempted to drive reckless is possible.
4. Attendant Circumstances
a. Methods #1: Actor must have required mens rea for the attendant circumstances as the
conduct. E.g. statutory rape requires no mens rea for the girl’s age for an attempt.
b. Methods #2: Actor must at least be reckless towards the attendant circumstances.

C. ACTUS REUS of Attempt

1. Factors to consider:
a. Is the commission of the crime dangerously close to causing tangible harm? (So close that the
police can not wait any longer and still prevent the crime?) (Objectivist)
b. How serious is the crime? The more serious, the earlier back the law of attempt reaches.
c. How strong is the actor’s mens rea? The more clear the intent to commit, the less proximate
the acts need to be. (Subjectivist)
2. “Last Act” Test (No jurisdiction require so much.)
a. A person is guilty of an attempt when the ∆ has completed all the acts necessary for
committing the target offense.
b. CRITIQUE: It’s a little late to prevent the arson if you have to wait until the fire is set.
3. “Physical Proximity” Test
A person attempts a crime when a first or subsequent step in a direct movement is made; i.e.
that the ∆ has the power to complete the crime immediately.
4. “Dangerous Proximity” Test
The act is near enough (based on the “nearness of danger”, the “greatness of harm”, and the
degree of “apprehension”) that the danger of success is very great.
E.g. Rizzo requires at least the specific victim of the crime.
5. “Indispensable Element” Test
An attempt can not occur until the ∆ has all the necessary instrumentality of the crime.
(Dressler says this is arbitrary since it has no connection to mens rea or social harm of the
public repose.)
6. “Probable Resistance” Test
a. An attempt occurs when an actor proceeds beyond the point where a reasonable person would
probably voluntarily desist.
b. Dressler says that this is fallacious since reasonable persons do not commit crimes.
7. “Unequivocal” Test
a. An attempt occurs when the person’s conduct standing alone unambiguously manifest the
criminal intent.
b. But some conduct that manifest criminality can be rendered ambiguous by a later act which
may result in the conviction of innocent persons.

A. MPC § 5.01
1. Definition:
An attempt requires the purpose to commit the offense and conduct that constitutes a
“substantial step” toward the commission of the offense.
2. Method of Analysis:
(1) Does it involve a complete or incomplete attempt?
(2) If COMPLETE,
the crime is a result crime (murder), apply § 5.01(1)(b)
the crime is a conduct crime (driving while drunk), apply § 5.01(1)(a).
(3) If INCOMPLETE, apply § 5.01(1)(c) with § (2).
3. MENS REA

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 a. The mens rea for an attempt is ONLY purpose to commit the crime and does not pertain to
any attendant circumstances.
b. Mens rea for attendant circumstances must be sufficient for the commission of the crime.

4. ACTUS REUS
a. Attempts can be completed (§ 5.01(1)(a) and (b)) or incomplete (c) which requires a
substantial step toward the commission of the crime.

11[B]: IMPOSSIBILITY DEFENSE

A. At common law,
1. Pure Legal impossibility is a defense because it is really a LEGALITY issue.
A person who commits an act believing it to be illegal can not be convicted of the crime if the
act is NOT actually illegal.
2. Hybrid Legal impossibility is not a defense.
a. The act is illegal, but commission is impossible because of a factual mistake regarding
the legal status of some attendant circumstance.
b. Dressler says that these situations should be seen as factual impossibilities.
3. Factual impossibility is not a defense.
“Factual Impossibility” is when the attendant circumstance are such that the crime can not be
committed. e.g. the empty pocket for the pickpocket, firing an unloaded gun
4. Inherent Factual Impossibility
When a reasonable person would view the situation as being impossible to achieve the
criminal objectives, then the offense is downgraded or dismissed. E.g. The voodoo doll
method of murder doesn’t count.
B. Under the MPC
1. Pure Legal Impossibility is a defense. (same as common law.)
2. Hybrid and Factual Impossibility is abolished under § 5.01.
3. Inherent Factual Impossibility is not a defense § 5.01.

11[C]: ABANDONMENT DEFENSE

A. At Common law,
1. At common law, abandonment was not a defense.
2. Some states allow abandonment if the renunciation is voluntary and complete.
3. Some also require that the renunciate occurs before the last act.
B. Under MPC § 5.01(4)
1. Renunciation is a defense to an attempt if the actor abandons the effort or prevents its commission
and manifests a complete and voluntary renunciation from the criminal intent.
2. Postponement, finding a different victim, or being scared away b/c of the cops is insufficient.

12: SOLICITATION
A. At Common law

1. Definition: Solicitation occurs when a person invites, requests, commands, hires, or encourages
another to engage in conduct constituting the offense (limited to felonies and misdemeanors).

2. MENS REA:
Solicitation is a specific intent crime in that the actor must intentionally invite, etc… with
the specific intent that the other commit the crime.

3. ACTUS REUS
The actus reus occurs at the instant of the soliciation, nothing further is necessary.
4. Merger
Solicitation merges with an attempt, a conspiracy, and the commission of an offense.

5. Solicitation and conspiracy:

a. A solicitation is an attempted conspiracy.
b. BUT there can be solicitation without a conspiracy.
c. There can be a conspiracy without solicitation. (If 2 people agreed to carry out a crime but
one person doesn’t ask the other to do it.)
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 6. Solicitation and Attempts – Four Approaches
a. A solicitation is a potential attempt. (Whether it is an attempt depends on how proximate the
solicitation is to the offense.)
b. Solicitation and a “slight act” in furtherance of it by the solicitor is an attempt. E.g. When an
actor solicits and pays someone to carry out a crime.
c. Solicitation plus an overt act by the solicitor that could constitute an attempt is an attempt.
E.g. When the actor solicits a burglary and then opens the window.
d. Solicitation is never an attempt because the solicitor did not intend to carry out the crime.

B. Under the MPC

1. Definition: Solicitation requires:
a. the actor’s purpose to promote or facilitate the commission of the crime;
b. with such purpose he commands, encourages, or requests another to engage in criminal
conduct or would establish that person’s complicity in the crime.
2. Differences with the common law
a. Includes all crimes
b. Can attempt to solicit
c. Solicitor can be the prinicipal or the accomplice
d. uncommunicated solication is solicitation (versus the attempted solicitiation).

3. Renunciation is a defense.
4. Punishment for solicitation is equal to the punishment for the crime.

13: CONSPIRACY
A. At common law
1. Definition: “An agreement by 2 or more persons to commit a criminal act or to accomplish a
lawful act by criminal means.”
2. Punishment: Conspiracy is a misdemeanor.
3. Merger: Conspiracy does not merge with attempt or completion.
4. MENS REA:
Conspiracy is a specific intent crime, i.e. the actor must intend to conspire and intend that the
crime is committed.
5. ACTUS REUS:
a. The completion of the agreement suffices.
b. Some jurisdictions require an overt act in furtherance of the conspiracy. The overt act can be
an omission, a legal act, and is sufficient if performed by only one member of the conspiracy.

6. d
B. Under the MPC
1. Definition: “Agreement to either commit, attempt or solicit a crime or an agreement to aid another
in the planning, commission, attempt, or solicitation of the crime.”
2. Punishment
a. Conspiracy is equal to the crime solicited.
b. Conspiracy of several crimes is graded at the highest level of the crimes.
3. Merger:
Conspiracy merges UNLESS there are crimes in the conspiracy that have not been
committed or attempted.
4. MENS REA: same as common law.

5.
ACTUS REUS:
a. Agreement to commit a crime. (lawful act by unlawful means is dropped.)
b. OVERT ACT
i. If the crime is a misdemeanor or felony of the 3° degree, an overt act is required.
ii. 1° and 2° felonies do not require an overt act.
14: COMPLICITY
A. At common law
1. Definitions:
a. Accomplice = a person who intentionally assists P to engage in criminal conduct.
b. To assist = includes encouragement, solicitation, advising, procuring instruments, etc…
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 i. Physical assistance
ii. Psychological assistance
• Includes encouragement.
• Presence with a prior agreement to assist is sufficient
• Ppresence with the hidden intent to aid is insufficient if the aid is unnecessary.
iii. Omissions where there is a duty to intervene.
c. Principal in the 1° = the person with the mens rea who actually commits the crime or commits
it through an innocent instrumentality.
d. Innocent Instrumentality includes insane persons, children, or coerced persons and non-
human agents.
e. Principal in the 2° = the person who assists in the commission of a crime in his presence
(either actual or constructive).
f. Accessory before the fact = An accomplice who is not actually or constructively present
during the offense. E.g. the person who solicited or procured the gun.
g. Accessory after the fact = a person who knows P’s guilt and who intentionally assists P to
avoid arrest, trial, or conviction.
h. Commission of a crime ends when all the acts of the crime have been committed. (includes
reaching a place of temporary safety.)

2. Theories of accomplice liability:

a. Similar to civil law agency where one person consents to be responsible for someone else’s
acts.
b. An accomplice forfeits personal identity (i.e. the right to be treated personally) when choosing
to be an accomplice

3. Innocent Instrumentality Rule

a. A person is the principal in the 1° if he uses an non-human agent or a non-culpable person to
commit the acts.
b. In nonproxyable crimes, the principal is not convictable through the innocent instrumentality
rule.
c. E.g. The husband who deceives X into raping his wife can not be convicted for the rape b/c it
is impossible for a husband to rape his wife.

4. MENS REA
a. The accomplice must (1) intend to assist the primary party to engage in criminal conduct and
and (2) the level of mens rea required for the offense committed.
b. Knowing that one is assisting is insufficient.
c. Attendant circumstances.
Dressler says that the mens rea requirement for crime should control the accomplice’s
situation. Thus, for rape an accomplice must be at least reckless regarding the
nonconsensual element of the offense.

5. ACTUS REUS
a. Actual assistance is required.
b. The assistance does not have to be a but for cause.
CRITICS say that the no causation rule ensnares persons whose connection is remote.
E.g. the cheerers at a sporting event where a battery occurs.
CRITICS say that it leads to disproportionate punishment because all accomplices derive
100% of the crime regardless of how much they actually assisted.

6. Natural and probably consequence rule

a. S is guilty of the crime he assisted in and any crime that is a natural and probable
consequence of the crime.
b. Analysis:
(1) Did P commit crime A?
(2) Did S intentionally assist P in committing crime A?
(3) Did P commit any other crimes?
(4) Are the other crimes a reasonably foreseeable result of crime A?
If yes, then S is guilty of all P’s crimes.

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 c. CRITIC: Punishes S for negligence (lower than even P’s mens rea).

7. Relationship between P and S’s convictions:

a. Traditionally, P must be convicted 1st and S could not be convicted for a more serious offense
than P.
b. Now, for homicides courts determine if the actus reus was committed and then the mens rea
of S in determining what to charge S.

8. DEFENSES:
a. Justification and Excuses of P
If P was justified, the no accomplice liability. (Justifications are abstract.)
If P is excused, then accomplice liability. (Excuses are personal to the act
If P is feigning (Hayes) then there is no crime to derive liability from.
b. Renunciation
A person can withdraw his agreement by communicating withdrawal to the P and making
genuine efforts to neutralize the effect of his assistance.

B. Under the MPC

1. Innocent Instrumentality Rule
a. A person is the P if he has the necessary mens rea and he causes the innocent party to commit
the crime.
b. Note: Requires that P cause the crime, not merely that the actual perpetrator is innocent.

2. NO NATURAL & PROBABLY CONSEQUENCE RULE!!!

a. Liability is limited to the purpose of the accomplice, i.e.

3. Accomplices can be convicted for different offense or level of offense than the P.

4. IMPOSSIBILITY ~ defense
If ∆ can not commit the crime himself but his accomplice does, then ∆ can be held
responsible. (E.g. The husband can be convicted for the rape of his wife by his accomplice.)

5. Limits / DEFENSES
a. Victims of the crime can not be accomplices.
b. Conduct that is inevitable incident is not sufficient for accomplice liability.
c. Abandonment is a defense if the actor terminates his participation before the crime is
committed; and either neutralizes his assistance; gives timely warning to the police or
attempts to prevent the crime.

6. MENS REA
a. Like common law, the accomplice must intend that the offense be committed.
b. Knowing is insufficient. E.g. If ∆ sells gun to a hit man knowing that it will be used for a
murder, ∆ is not an accomplice. (The ∆ must intend for the murder to occur.)
c. If the crime is R or N, if the ∆ recklessly or negligently agreed to the conduct.
Analysis:
(1) What is the P’s potential responsibility? (e.g. negligent homicide)
(2) Was S an accomplice in P’s conduct, i.e. P’s negligence? (e.g. Did S encourage P to drive
negligently?)
(3) Was S’s mens rea regarding the conduct sufficient? (e.g. S was negligent.)
d. Attendant Circumstances
The MPC is silent about attendant circumstances.

7. ACTUS REUS:
A person is an accomplice if he
(1) solicits (but not agreeing to solicit);
(2) aids;
(3) agrees to aid;
(4) attempts to aid;
(5) or fails to act (but he must intend to facilitate the crime by not acting and have a duty to act.)

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8. When P has no criminal liability, S can be convicted of an attempt § 5.01(3).

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