CHAPTER 1: INTRODUCTION: SETTING THE STAGE

A. Nature, Sources, and Limits of the Criminal Law

B. Criminal Law in a Procedural Context: Pre-Trial
C. Criminal Law in a Procedural Context: Trial By Jury
D. Proof of Guilt at Trial
1. “Proof Beyond a Reasonable Doubt”
2. Enforcing The Presumption of Innocence
Owens v. State
Appellant –owens and apellee state of Maryland
Court of Special Appeals of Maryland 1992, Judge Moylan
Facts: Appeals case brought by Owens bc the trail court convicted Owens of driving while intoxicated
based on circumstantial evidence alone. He did not drive on public road- required in Maryland to be drunk
driving.* The suspect found parked behind wheel of an automobile in a private driveway at night while
intoxicated. There are 2 hypos 1) he arrived which would constitute guilt of driving while intoxicated and
2) he was about to leave but didn’t drive yet innocent. The only witness was trooper Samuel Cottman, who
in response to as complaint had been called about a suspicious vehicle. He spotted a matching vehicle
parked in the driveway of a private residence with the engine running and the lights on. The defendant was
in the vehicle asleep holding bud, and there were 2 more empty beer cans in the car. Appellant was found
to have an alcohol restriction on his license, and refused to submit a blood alcohol test. The appellant was
convicted of driving on a public highway drunkenly not driveway. He failed a field sobriety test.
Issue: Whether the trial court was correct in finding Owens was guilty of DUI based on circumstantial
evidence is correct.
Held: The court affirmed that the defendant was indeed driving while intoxicated on a public highway due
to the fact that there seemed to be much more guilt than innocence based on the facts.
Reasoning: The driveway where arrest took place was not the appellants address, however this was not
offered as evidence and thus is not in the case. But the court does put in that there is a call that there is a
suspicious car in a driveway- as to hint at the fact that he did indeed drive on the road.
The three beer cans were in evidence, one does not typically drink in house and cary empties into the car,
so drinking can be inferred to have taken place in the car which is further affirmed by the appellant be
unconscious. This points to the fact that it seems that it was the end stage not the beginning one of his
journey. ppl don’t drink and turn on lights of car and pass out usually. Furthermore trooper called in on
complaint of suspicious vehicle matching his. It is reasonable to assume that the vehicle was driving in an
erratic fashion. Because of these facts guilt is not proved but it makes it more likely than innocence.

Is this proof beyond a reasonable doubt- Does the appellant court have to find proof beyond a reasonable
doubt? The appellant court finds if what the trial court ruled was rational or not. “appeal is whether a
rational trier of fact could have reached the result it did.” Pg 18 the burden is on the defendant to prove if if
there are conflicting opinions.

Under moral certainty instruction of beyond a reasonable doubt then a rational trier of fact they could have
found him guilty beyond a reasonable doubt.
Decision on appeal is easier then decision at trial because all that the appeals court has to do is
find if the verdict in trial court is rational.

Interpretation of a term narrowly vs. broadly- by looking at case law: AKA

E. Jury Nullification
STATE V. RAGLAND
Supreme Court of New Jersey, 1986.

CHAPTER 2: PRINCIPLES OF PUNISHMENT

A. Theories of Punishment
1. In General
2. Utilitarian Justifications
3. Retributive Justifications
Punishment should be tied to dessert --- if you rely solely on consequential reasons for punishment it ends
up with moral questions coming up

Theory of Criminal Law combines both utilitarian and non-utilitarian theory

Yes we want to have a punishment to deter criminal acts in future
On the other hand, we should punish based on eye for an eye
We want to deter bad conduct but it is not just to have a significant number of innocent people
punished to ensure anti-social conduct to near zero
Is it okay to do bad things to people so that you can get a consequential result?
We care about the consequences but we know it is not right to punish innocent people and it is a tension we
constantly have in the criminal justice system
Non-consequential v. consequential behaviors

B. The Penal Theories in Action

1. Who Should Be Punished?
The Queen V. Dudley and Stephens
Queen’s Bench Division 1884
C.J. Lord Coleridge
Facts: Thomas Dudley and Edwin Stephens were indicted for the murder of Richard parker on the high
seas on the 25th of July 1884. Dudley and Stephens with a Brooks, all seamen, and an English boy Richard
Parker were the crew of a yacht which was cast away in a storm 1600 miles from the Cape of Good Hope.
They were in an open boat with no supply of food except 1 lb tin of turnips and for three days nothing else.
On fourth day they ate small turtle which they caught, and the next 8 days had nothing else to eat. They had
no fresh water except for rain they caught and were drifting at sea at least 1000 miles from land. On the 18th
day the now prisoners spoke to brooks suggesting that they should sacrifice someone to save the rest (after
7 days w/o food and five without water). Brooks dissented and the boy was not consulted. On the 24th of
July Dudley proposed to Stephens and Brooks that lots should be drawn for who would be put to death to
save the rest. Brooks again refused to consent and the boy was not consulted. The same day the prisoners
decided that it would be better to kill the boy to save their lives, and Dudley proposed if there was no vessel
by the following morning that the boy should be killed. Next day, there was no Vessel, and Dudley told
brooks to have a sleep, again gesturing that he planned on killing the boy. Brooks again dissented and boy
neither agreed or disagreed as he was very weak. Dudley with the assent of Stephens went to the boy and
killed him, and the three men fed upon his body. Four days after the act was committed the boat was picked
up by a passing vessel. Stephens and Dudley hold that within the four days that they would have died had
they not consumed the already weakened boy. They both plead that they should not be charged with murder
as they acted out of necessity
Issue: Whether the 2 men should be convicted of murder for killing Richard Parker since they acted out of
necessity to kill.
Held: The killing of Richard parker was a felony and murder even though there is necessity.
Black Letter Rule: A person may be punished and convicted of murder, despite killing out of necessity
Reasons: From Emmanuel’s:
“1) Morality: Morality demands that one die rather than take the life of an innocent person
2) Rescue: a rescue may have occurred before any of the three had died so it was not at all certain that a
greater evil will be avoided by the killing
3) Unfairness: deciding who is to die is fraught with unfairness
4) Abuse: if this defense is allowed it may be abused and made a legal cloak for unbridled passion and
atrocious crime”

Why is it in book? Who is it who we should PUNISH

Homicide is homicide and it should be punished
Difference between moral justification and excuse
If it is justified then it is an alright act
No one is saying what these people did is justifiable (that it is alright to kill and eat another person in a
situation like this) --- their argument is that there may be circumstances where we understand this
behavior and it could be an excusable conduct --- it was not justifiable, it was wrong but to an extent we
punish people that we don’t want them to do anti-social behavior in the future there is no significant
chance they were going to conduct anti-social behavior when they got back
 There is no reason for deterrent value right now
What purpose to punishment serve in this case?
It is always wrong to take a life so you are punished but it is potentially excusable
Does punishment serve any purpose here?
1) yes, they did something wrong they should be punished
2) no, this was excusable, especially if your theory of punishment is deterrence

CLASS NOTES ON CASE of Queen V. Dudley & Stephens:

We are reading here a “special verdict” from the jury- a document the jury wrote setting out what they
saw to be the facts.
Jury couldn’t decide whether guilty or not guilty so asking for courts opinion. Leave it up to the judgment
of the judge whether it be murder or not be murder. Found facts and the court has to decide the law.
Dudley killed boy- guilty
Stephens consents- he is an accomplice- a co conspirator as well
He consents, and he benefits from the killing just as Dudley did.
So if Dudley’s guilty Stephens is guilty
Brooks- does he have a duty to prevent this? Not an accomplice, he dissented, and didn’t help.
Is this murder? Murder in England in 1884, it was killing with malice and forethought. Malice
and forethought-. Malice is either express or implied. It is express when there is manifested a
deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no
considerable provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart (page 233) – From the California penal code
there defiantly deliberate intention Dudley planned it acted and prayed making it obviously
premeditated.
Dudley’s argument under the Illinois criminal code, is that he had lawful justification. (235)
There are 2 possibilities-Dudley believes that there is justification and belief is
reasonable- not guilty
Believes justification but justification was unreasonable so
he is charged with second degree murder under the Illinois criminal code 9-2 (2) (236)
Would be considered murder in Michigan but Michigan legislature does not really define murder
If it is murder or not depends on the jurisdiction*****

Could say there was necessity (probably in article 7)- all 3 going to die, but there is not 100%
certainty that they may or may not be saved.
Parker has not self selected himself that he could be killed. But there is an argument that he is
self selected because he drank sea water it dehydrates you more.
Necessity defense is often referred to like the least evil. The Best of the evils.
Side note: Premeditation is not required in Illinois for first degree murder only requires intent to
kill.
There are mitigating circumstances- jury said that according to the prisoners under
these circumstances it appeared to the prisoners that there was every probability that if they
didn’t eat the boy they would die of starvation.
Outcome- the house of lords convicted them of murder, and death sentence, but queen Elizabeth
pardoned them

Murder statuetes -237 murder is defiend in Michigan penal code-murder perpetrated by means of poison,
lying in wait, or any other willful deliberate and premeditated killing
Second degree murder is open ended- go back to common

C. Proportionality of Punishment
1. General Principles
2. Constitutional Principles
COKER V. GEORGIA
Supreme Court of the United States, 1977.
Facts: On September 2, 1974, while serving various sentences for murder, rape, kidnapping, and
aggravated assault, Coker (Defendant) escaped from the Ware Correctional Institution. Coker entered into
the house of Allen and Enita Carver through an unlocked kitchen door. Coker tied Mr. Carver in the
bathroom, took a knife from the kitchen, and took Mr. Carver’s money and keys to the family car. Coker
then raped Mrs. Carver and drove away in the car with her. Mr. Carver freed himself and Coker was
apprehended and Mrs. Carver unharmed. Coker was charged with escape, armed robbery, motor vehicle
theft, kidnapping, and rape.
Procedural History: Jury found Coker guilty. The jury was instructed that it could considered as
aggravating circumstances, whether the rape had been committed by a person with a prior record of
conviction for a capital felony. It could also consider whether the rape had been committed in the course of
committing another capital felony (armed robbery of Mr. Carver). They were instructed the death penalty
may not be imposed if there were circumstances that may be considered as reducing the degree of moral
culpability. They sentenced Coker to death by electrocution. Conviction and sentence affirmed by the
Georgia Supreme Court.
Issue: Is the death penalty for rape of an adult woman, a grossly disproportionate punishment prohibited
by the 8th Amendment as cruel and unusual?
Holding: Reversed. The sentences of death for the rape of an adult woman, is grossly disproportionate and
excessive, and is therefore forbidden by the 8th Amendment
Analysis: It is now settled that the death penalty is not invariably cruel and unusual punishment within the
meaning of the 8th Amendment. The court firmly embraces the holdings of dicta from prior cases to the
effect of the 8th Amendment, not only those punishments that are barbaric, but also those that are excessive
in relation to the crime committed. A punishment is excessive if 1) makes no measurable contribution to
acceptable goals of punishment and is nothing more than the purposeless and needless imposition of pain
and suffering, or 2) is grossly out of proportion to the severity of the crime. By 1977, Georgia was the sole
jurisdiction authorizing death for rape for an adult woman. Since 1973, Georgia juries had sentenced rapist
to death only 6 times in 63 conviction. Rape, without a doubt, is deserving of serious punishment, but does
not compare with murder. Rape does not include the death or even serious injury to another person.

Issue – Does it violate 8th amendment to execute someone for rape

Ceralroli Decision – plurality opinion

Were a majority of people for the JUDMENT but not for the OPINION
There is no majority as to how they got to the bottom line
Judge Powell agrees because this is not a violent case
These people do believe in the death penalty but just do not think rape has harm to justify death penalty
here --- they say it is only appropriate when someone else takes someone elses life --- we generally do not
punish like for like in any other context besides murder

EWING V. CALIFORNIA
Supreme Court of the US, 2003.
Facts: On March 12, 2000, while on parole from a 9-year prison term, Ewing (defendant) left the pro shop
at the a Gold Course with three golf clubs, priced at $399 each, concealed in his pants leg. Prior to the theft
of the golf clubs, Ewing had already been convicted of numerous other crimes.
Procedural History: In sentencing Ewing, the court found that Ewing had been convicted previously of
four serious or violent felonies based upon the 3 residential burglaries and first degree robbery in the Long
Beach apartment complex. Ewing was sentenced under California’s 3 strikes law to 25 years to life. He
appeals on the grounds that it is grossly disproportionate to the crime committed.
Issue: Does the 8th Amendment, which prohibits cruel and unusual punishment, bar a State from sentencing
a repeat felon to a prison term of 25 years to life under the State’s 3 strikes law?
Holding: Affirmed. Sentence of 25 years to Life is not grossly disproportionate to crime of grand theft
under a state’s three strikes law
Analysis: In Rummel V. Estelle, it was noted that outside the realm of death penalty cases, successful
proportionality challenges have been quite rare. In Rummel, it was concluded that it did not violate the 8th
Amendment to sentence a 3 time offender to life in prison with the possibility of parole. However, 3 years
later, we set aside a sentence to life imprisonment, without the possibility of parole in Solem V. Helm. In
Harmelin V. Michigan, they upheld a mandatory life sentence without the possibility of parole for a 1st time
offender convicted of possessing 672 grams of cocaine. In Harmelin, Justice Kennedy identified the
following 4 principles to guide proportionality: 1) the primacy of the legislature, 2) the variety of legitimate
penological schemes, 3) the nature of our federal system, and 4) the requirement that proportionality review
be guided by objective factors. State legislatures enacted the 3 strike laws to target the class of offenders
who posed the greatest threat to society, career criminals. Nothing in the 8th Amendment prohibits
California’s policy choice to address recidivism. California also acted in the interest of deterring crime.
California has a reasonable basis for believing that enhanced sentences for habitual felons substantially
advance the goals of its criminal justice system.

Majority plurality but not opinion

What is Justice Scalia’s opinion
If you are into deterrents you have no problem with this
Principle of proportionality is only applicable if the theory of punishment is retributive (only
impose that level of punishment that is proportionate to the harm he did as a result of this action)
--- once the court says that the states are free to adopt whatever theory of punishment they want,
and the states do have the right to determine this, the notion of proportionality does not come into
play anymore --- because the cali legislature makes the determination of what to impose on
somebody then that is perfectly alright but proportionality does not come into play here
Plurality opinion makes it hard to use as precedent in the favor. The reason for result is not clear because
not all the judges agree

CHAPTER 3: MODERN ROLE OF CRIMINAL STATUTES

A. Principle of Legality
a. Nulla poena sine lege – condemns judicial crime creation
b. Void-for-vagueness – forbids wholesale legislative delegation of lawmaking authority to
the court
c. Strict Construction – judicial resolution of residual uncertainty in the meaning of the
penal statures be biased in favor of the accused

1. The Requirement of Previously Defined Conduct

COMMONWEALTH v. MOCHAN
Superior Court of Pennsylvania, 1955.
Facts: Mochan telephones one Louise Zivkovich various times verbally harassing her
on a party line meaning other people could hear it. But the conduct in the
indictments was not prohibited by statute. The Penn penal code says that ”every
offense punishable either by statute or common law of this commonwealth and not
specifically provided for by this act shall continue to be an offense punishable as
heretofore.” So the prosecutor said that Mochans conduct was unlawful under
common law. In trial he was sentenced by judge without jury and convicted of both
charges (injury and oppression to louise and other citizens of commonwealth/public
morality). Defendant appealed on the grounds that the conduct that he was charged
with is not a criminal offense in any statute and does not constitute a misdemeanor
in common law.

Issue: Whether he can be charged with a misdemeanor at common law, when there
is not mention that this is a criminal offense in any statute in the state.

Whether mochan can be convicted using vile obscene language, when there is not
mention that this is a criminal offense in any statute in the state.

Holding: Judgments and sentences by trial court affirmed.

Reason: Commonwealth v. Miller “the common law is sufficiently broad to punish a

misdemeanor…in cases where injury affects public morality, obstruct justice or
pervert and obstruct the administration of government. any act which directly injures
the public to a large extent require state interference and punishment” this is a
general rule that state can punish if the act directly injures or attempts to injure the
public. The court says shes been injured bc her reputation had been sullied,
furthermore other people could have heard as well.

Dissenting: Judge Woodside says that it is for the legislature to define what crimes
offend public morality and not the judge, and that court was invading the legislative
field. It is bad precedent for judicial to invade legislative field as it is vice versa.

Section 1101 of Pennsylvania Penal Code of 1939 provided that “every offense
punishable either by statutes or common law of this Commonwealth and not
specifically provided by this Act” shall continue to be an offense punishable
heretofore.
Do things have to be clear so that people need to know what to be expected of
them?
Who reads cases or looks at laws before they do something?
Things are kept vague so there can be a fair amount of flexibility with police
officers
Arbitrary/uneven conduct given to people in the criminal justice system
Full of UNCERTAINTY
Systems of rules are imprecise ways of guiding behavior and they are imprecise
because they can only have a certain level of specificity and there will be a fair
amount of play --- uncertainty whether particular conduct is okay in a particular
situation --- there is going to be a fair amount of flexibility and vagueness
Law does not provide normative clarity because law wants some play/discretion so
that society can be controlled --- must be levels of discretion with the police officers
What comes with level of discretion is racism
Judges make law by filling in the gaps
Discretion allows human beings that are not machines to animate their perceptions
and biases --- this has tremendous consequences on peoples lives --- this discretion
can be very detrimental

KEELER v. SUPERIOR COURT

Supreme Court of California, 1970.
Justice Mosk

Facts: Mrs. Keller was pregnant and driving. She was stopped by mr keeler and
stepped out of the car at mr keelers request and assistance out of the car, after
which he shoved his knee into her abdomen causing a premature abortion.
Furthermore it was concluded that if the baby had been born it would have had a
seventy five to ninety six percent chance of survival

Issue: whether a fetus is a human being within the meaning of the California statute
defining murder.

Held: since the legislature did not intend that human being encompassed fetus, to
charge the defendant with murder “the unlawful killing of a human being with malice
and aforethought” would go beyond judicial power and therefore can not be applied

Reason: by looking at 1850 when statute was written can see what was intended to
be meant as encompassing a human being- you find that baby would not have been
considered a human being unless born alive. Furthermore, although the people urge
that it should be considered murder the Judge cannot rewrite the California statute,
they can not go as far as inserting or deleting words it is the legislatures job to wrote
the law

Furthermore prosecuting the defendant would violate his due process rights, since
assuming he is a reasonable person he would not have been expected to know that
the act would be considered murder since it is not defined as such in any of the
states statutes. Furthermore even in case law there is no reported decision that
California courts that would indicate that a killing of a fetus was considered murder
and as such he would not know it was illegal

1850 indication of life was the quickening of the child-when baby stirs in womb- in
common law before 1850 killing before quickening-no crime at all

After quickening- no murder according to common law- it was a misdemeanor it was

not murder, this is important because this points what the legislative intent was in
1850. So in 1850 legislature would not consider what keeler did murder. This goes
back to principle of legality –notion is that if the legislature in 1850 did not mean for
this to be a crime we the California Supreme court should not expand this and create
new crimes. (bottom of page 94-violates penal code 6)

Also even if they could change the law and broaden the definition to include fetus in
this cae, it would not apply in this case, the federal and state constitution forbids
applying a new rule unless you have fair notice of the rule.

Dissenting: Burke, chief justice: the majority overlooks important precedents

which would make child a human bingeing- quickend children were human beings
however they would prob be born dead, and with modern technology this could have
been a child would have been born alive-

furthermore he likens the viabke unborn fetus to he likens to thef act that we
consider someone who has died and ressuciatated to be a human why not the other
way around. Killing a resuscitated person would be homicide

he goes onto say that if the defendant gad consulted coke blackstone or hale he
would have known he was committing murder

the real intent is to protecvt the killing of human beings- and we know fetus is viable
so maybe human being

also fair notice that any man in this time knows that if you stomp a womans stomach
you will probably kill a baby.

Murder is homicide of a human being

Is a fetus a human being?
Times have changed when statutes were originally written and not fetus reaches
viability at a certain point
Fetus at common law was not considered to be a human being
Fetus is not a human being according to law

2. The Values of Statutory Clarity

IN RE BANKS
Supreme Court of North Carolina, 1978.
Justice Moore

The state argues that the trial court erred in ruling that GS 14-202 the peeping tom
statute is unconstitutional. But the respondent says that it is unconstitutionally
vague, since men of common intelligence must guess to what its meaning and
application”

Statute: secretly peeping into room occupied by female person-any person who shall
peep secretly into any room occupied by a female person shall be guilty of a
misdemeanor and upon conviction shall be fined or imprisoned in the direction of the
court.

When language ius unclear courts interprate language and try to discern the
legislative intent. Statutes that are vague should be judged in light of their common
law meaning “waiwright v. stone”

In state v. bivins- interperate peerp to look cautuiously or slyly as if through a crevice

out of chiks and knotholes

State v. banks-the word secretly is found tio convey the meaning of spying on
another with the intention of invading her privacy

Therefore the state holds that the statute is sufficiently defined and affirmed this
statute.

Defendant argues that it is overbroad, but it is narrow enough as seen in Lemon v

State where Georgia upheld the statutes validity by contending that the statute is not
so overbroad, and it is legitimately narrow because it carries in it that the defendant
must act with wrongful intent, thereby leaving out ppl who have legitimate purpose
on another’s property or those who may glance through a window-meaning that it
encompasses” spying for the wrongful purpose of invading the privacy of female
occupant of room, .

The issue is that this statute may be unconstitutionally vague or broad

But peep kind of connotes anyway that you didn’t disclose yourself- peep is different
from look.

Dicta – when court talks about situations that are not the facts of this case and part
of rational not to solve this case – is not binding

Defendant argues that it is unconstitutionally vague

“secretly” implies invading privacy
We have a situation where it was written badly, but we know exactly what it is
getting at

CITY OF CHICAGO v. MORALES

Supreme Court of the United States, 1999
Justice Stevens
Facts: Due to concerns over the increase in criminal street gang activity, the
Chicago City Council enacted the Gang Congregation Ordinance. This ordinance
prohibits “criminal street gang members from loitering with one another or with other
person in any public place.”
4 predicates:
1) the police officer must reasonably believe that at least one of the two or more
persons present in a public place is a criminal street gang member
2) the persons must be loitering which the ordinance defines as remaining in any one
place with no apparent purpose
3) the officer must then order all of the persons to disperse and remove themselves
from the area
4) a person must disobey the officer’s order, whether a gang member or not, any
person who disobeys the order is guilty of violating the ordinance.
A violation of this is punishable by a fine of $500, imprisonment up to 6 months, and
up to 120 hours of community service.
Issue: Should the City of Chicago’s (plaintiff) criminal anti-loitering ordinance be
invalidated for vagueness under the Due Process Clause?
Holding: The Supreme Court strikes down a citys anti-loitering ordinance for
vagueness.
Black Letter Rule: To meet the requirements of the Due Process Clause and thus
survive invalidation due to vagueness, a criminal law must provide sufficiently
specific limits on the enforcement discretion of the police and sufficient notice to the
public of what conduct is prohibited
Analysis: A criminal law may be invalidated under the vagueness doctrine on two
independent grounds. First, a law must provide the kind of notice that will allow an
ordinary person to understand what conduct it prohibits. Second, the law must not
authorize or encourage arbitrary and discriminatory enforcement. Here, the
ordinance in question prohibits loitering. The term is defined here to mean “to
remain in any one place with no apparent purpose.” It is difficult for a person
standing with a group of people in a public place to know whether he or she had an
apparent purpose. The ordinance is not saved by the requirement that a loiterer
must first fail to comply with an order to disperse before violating the ordinance. If
the loitering is in fact harmless and innocent, then the dispersal order in itself is an
unjustified impairment of liberty. It fails to provide any meaningful standard of
conduct. The ordinance gives absolute discretion to the police officers to determine
which activities constitute loitering.
Concurrence: (O’Connor and Breyer) In spite of the holding, there remain open to
Chicago reasonable alternatives to combat the very real threat posed by gang
activity. They could construe the term loiter to mean something more defined.
Dissent: (Scalia) The majority’s real quarrel with the Chicago Ordinance is simply
that is permits (or indeed requires) too much harmless conduct by innocent citizens
to be proscribed. But in our democratic system, how much harmless conduct to
proscribe is not a judgment to be made by the courts.

B. Statutory Interpretation
UNITED STATES v. FOSTER – “carry”
United States Court of Appeals, Ninth Circuit, 1998
Facts: Foster (Defendant), a drug trafficker, was convicted of carrying a firearm in relation to a drug
trafficking crime.
Issue: Can a simple English word such as “carry” require statutory interpretation to ascertain legislative
intent? (did he carry it when he drove with it in his truck bed)
Procedural History: Appeal from conviction of carrying a firearm in relation to a drug trafficking crime.
Holding: Using the narrow term of carry, the court finds defendant’s firearm was not easily available to
him and not guilty
Analysis: Carry can mean many things. In United States v. Barber, the court gave carry a broad definition
when it stated that in ordinary usage carry included transportation or arranging for transportation. In US v.
Hernandez (vehicle not involved) the court narrowed its interpretation of the verb by stating that the
firearm must be immediately available for use. In Bailey v. US, The US Supreme Court began its analysis
of the verb use by considering its ordinary dictionary meaning. Faced with several different interpretations,
the Court considered the verb’s placement and purpose in the statute. The court emphasized that since that
statue contains two distinct terms, uses and carries, the court must define them narrowly enough so neither
engulfs the other. They defined use narrowly so implied that carry should be implied narrowly. If carry is
defined too broadly, it can become synonymous with transport, a term appearing in many gun statutes. The
court reasoned that a gun carried in the manner as the defendant carried creates substantially less risk than
carrying a gun in hand’s reach.
Dissent: Takes broad view.

CHAPTER 4: ACTUS REUS

Definition of Actus Reus:
In general a crime contains 2 components:
1) actus reus – physical or external part of the crime
2) mens rea – mental or internal ingredient
The term actus reus has no universally accepted definition
The most common definition of the term would include both the conduct and the harmful result:
“Actus Reus is to be interpreted as the comprehensive notion of act, harm, and its connecting link,
causation, with actus expressing the voluntary physical movement in the sense of conduct and reus
expressing the fact that this conduct results in a certain proscribed harm
A. Voluntary Act
MARTIN V. STATE
Alabama Court of Appeals, 1944.
Facts: Police officers arrest an intoxicated man at his home, take him onto a highway, and arrested him for
public drunkenness.
Issue: Must a defendant perform the physical act for each element of a crime that has an actus reus
component?
Holding: Reversed.
Black Letter Rule: A defendant must perform the physical act for each element of a crime that has an
actus reus component.
Analysis: Martin was convicted for violating a stature that provides that an individual in an intoxicated
condition who appears in a public place where one or more persons are present and manifest his
intoxication by boisterous or indecent conduct, or loud and profane language shall be fined upon
conviction. Public drunkenness has 2 elements. First, the accused must appear in a public place (Martin
appeared in a public place). Appearance requires a voluntary physical act (Martin did not perform any
physical act). The required actus reus does not exist. A crime did not occur, because the statute requires a
coincidence of voluntarily appearing in public and manifesting an intoxicated condition through certain
conduct.
Have to be intoxicated/drunk, be in a public place, and manifest an indecent conduct
Actus reus is a voluntary act that causes a harm
Result crimes that require a dead body
Conduct crimes – drunk driving, does not require you injure someone
Can involve result elements, conduct elements
3 elements to this statute, 2 conduct elements: appear in a public place, manifest a drunken condition
Problem with this case is what is required? (the actus reus) --- he did not engage in an act
Notes:
1) “enter OR at any time be found in the US” --- if an alien is kidnapped and brought to the US, is he
guilty of an offense? --- disjunctive (or), conjunct (and)
the reason why we require an act is because we do not simply want to punish people for what they think ---
can’t tell what people really think and shouldn’t punish people unless they actually do something

Pre-Cogs: Punishment for mere thoughts is condemned on various grounds

Model Penal Code 2.01(1) – a person is not guilty of an offense unless his conduct includes a voluntary act
or the omission to perform an act of which he is physically capable. This provision not only excluded
punishment for mere thoughts, but it bars liability for purely involuntary conduct
1) X raised his arm
2) X’s arm went up
1 implies 2, but 2 does not imply 1

STATE V. UTTER
Court of Appeals of Washington, 1971.
Facts: Intoxicated father with an alleged conditioned response (an act or pattern of activity occurring so
rapidly and uniformly as to be an automatic response to certain stimulus) condition fatally stabs his son in
the chest.
Procedural History: Utter was convicted of manslaughter by a jury.
Issue: Does a voluntary act require the consent of the actor’s will? The major issue presented on appeal is
whether it was error for the trial court to instruct the jury to disregard the evidence on conditioned response.
Holding: There is no evidence, circumstantial or otherwise from which the jury could determine or
reasonably infer what happened in the room at the time of the stabbing, the jury could only speculate on the
existence of the triggering stimulus.
Black Letter Rule: A voluntary act requires the consent of the actor’s will.
Analysis: The actus reus for manslaughter is homicide. The statutory definition of homicide is the killing
of a human being by the act, procurement, or omission of another. Utter asserts that he presented the
conditioned response evidence during his trial to determine if he committed a homicide. He contends that
this evidence, if believed, establishes that he did not commit a homicidal act. A crime does not exist unless
a voluntary act cause harm. The phrase voluntary act is synonymous with the word act. An act is a willed
movement or the omission of a possible and legally required performance. A spasm is not an act. Utter
says his alleged acts were learned physical reactions to external stimuli that operated automatically on his
autonomous nervous system. Further, he contends that a person in an automatistic or unconscious state is
incapable of committing a culpable homicidal act.
There is authority that supports Utter’s claims. State v. Strasburg – Criminal liability does not attach in the
absence of a voluntary act. Without the consent of the will human actions are not culpable.
Unconsciousness does not, in all cases, provide a defense to a crime. Voluntary intoxication that induces
unconsciousness is not a complete defense. In a case where there is evidence that the accused has
consumed alcohol or drugs, a trial court should give a cautionary instruction with respect to voluntarily
induced unconsciousness. The issue of whether or not Utter was in an unconscious or automatistic state at
the time he allegedly committed the criminal acts charged is a question of fact. The evidence presented to
jury was insufficient to present this issue to the jury. The evidence presented was insufficient to present the
issue of defendant’s unconscious or automatistic state at the time of the act to the jury.

Voluntary Act v. mens rea

Mens rea signifies the actor’s state of mind regarding the social harm of the offense, whereas the
element of voluntariness applies to the act that caused the social harm
Blameworthy state of mind different then mental mind to commit the act
Note 7 on pg 133 – Penal Code 2.01(4) – can only possess something if you do it KNOWNIGLY and
INTENTIONALLY
“Semi-voluntary”
People v. Decina – isn’t conduct during an epileptic seizure “involuntary”? --- in this situation we are
broadening out the time frame and the culpability is getting in the car when you know you are subject to an
epileptic seizure --- at the moment the harm happened he was not behaving voluntarily BUT in that
situation we will go back further and said he did something wrong when he got into the car --- when he is
doing the thing we are punishing him for he does not do any harm (problem of how we look at the time
frame of the crime and how far back we go)

B. Omissions (“Negative Acts”)

1. General Principles
PEOPLE v. BEARDSLEY
Supreme Court of Michigan, 1907.
Facts: Intoxicated male fails to assist his female friend who was in a stupor from drinking alcohol and
ingesting morphine.
Procedural History: Beardsley was convicted of manslaughter and appeals.
Issue: May a person be criminally liable if he fails to perform a legal duty and his omission causes harm?
Holding: The conviction is set aside and the respondent is ordered to discharge.
Black Letter Rule: A person may be criminally liable if he fails to perform a legal duty and his omission
causes harm.
Analysis: State contends that Mr. Beardsley owed Ms. Burns a duty that he failed to perform, thereby
causing her death. The duty to act may be a statutorily imposed, or it may results from a status relationship.
The duty neglected must be a legal duty rather than a mere moral duty. The omission to perform the duty
must be the immediate and direct cause of death. The relationships that must exist between the two parties
are: husband and wife, parent and child, and master and seaman. The prosecution contends that at the time
of Ms. Burns death, Mr. Beardsley stood in the shoes of her natural guardian and protector, and in this
capacity he owed her a legal duty which he failed to perform. However, the fact that Ms. Burns was in Mr.
Beardsley’s home does not create a legal duty as exists between a husband and wife. The contention by the
state is not supported by precedent.
Rule: The law recognizes that under some circumstances the omission of a duty owed by one individual to
another, where such omission results in the death of the one to whom the duty is owing, will make the other
chargeable with manslaughter. This rule of law is always based upon the proposition that the duty
neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or
contract, and the omission to perform the duty must be the immediate and direct cause of death.

5 situations in which the failure to act may constitute a breach of a legal duty:
1) where a statute imposes a duty
2) where one stands in a certain status relationship to another
3) where one has a assumed a contractual duty to care for another
4) where one has a voluntarily assumed the care of another and so secluded the helpless person as
to prevent others from rendering aid (put someone in worse situation by dissuading everyone else
from helping you)
5) when a person creates risk of harm to another
Why does number 4 not work in this situation? They did not put her in a situation where no one else could
help her (there was no one else to help her)
Murder of Kitty Genovese
Why does the common law permit people callously to permit harm to come to others, even when they could
prevent or mitigate the harm at no significant physical risk to themselves?
1) “non doings” are inherently more ambiguous than wrongdoings (acts). It is harder to
determine the motives and thus, the culpability of an omitter.
2) Difficult line-drawing problems arise in omission cases.
3) Well meaning bystanders often make matters worse by intervening in ongoing events
4) Freedom: A penal law that prohibits a person from doing X permits that individual to do
anything other than X. In contrast, a law that requires a person to do Y bars that person from
doing anything other than Y.

2. Distinguishing Acts from Omissions

BARBER v. SUPERIOR COURT
California Court of Appeal, 2nd District, 1983
Facts: Barber (defendant), a physician, removed Herbert (a comatose patient with little chance of recovery)
from life support at his family’s requst.
Procedural History: Complaint was originally dismissed. On motion of the People, the superior court
ordered to reinstate the complaint. Appeal from reinstatement of complaint for murder and conspiracy to
commit murder.
Issue: Does removal of life support form a vegetative, but not brain dead, person constitute murder?
Holding: Superior court erred in determining that as a matter of law the evidence required the magistrate to
hold petitioners to answer to charges of murder and conspiracy.
Black Letter Rule: Removal of life support equipment from a comatose patient who is unlikely to recover
is not an affirmative act, but an act of omission, that, if in accord with the patient’s or surrogate’s wishes,
does not give rise to criminal liability.
Analysis:
Murder – the unlawful killing of a human being, with malice after thought (Penal Code 187). Malice may
be expressed or implied. It is express when there is an intent unlawfully to take any life. It is implied when
the circumstances show an abandoned and malignant heart.
Euthanasia is neither excusable nor justifiable in California. It is conceded that Herbert was not dead by
either statutory or historical standards, since there was still minimal brain activity. There is evidence that
Mr. Herbert did not want to be kept alive by machines, Herbert’s wife and children decided that Herbert
should receive no further treatment.
Did he not act?
Killing v. letting die
Mixing up act and moral culpability

C. Social Harm
The loss suffered from a murder or other violent crime is experienced not only by the
immediate victim, but also by society (result crimes)
Is there a social harm when a person commits a conduct crime?
“negation, endangering, or destruction of an individual, group, or state interest,
which is deemed socially valuable”
It may be said that social harm is the “very essence” of crime
Attendant circumstance – a condition that must be present, in conjunction with the
prohibited conduct or result, in order to constitute a crime
Result Crimes and Conduct Crimes – it is important to distinguish what is conduct, what
is result, and attendant circumstance
Note 1 – conduct is driving, attendant circumstance is automobile
Note 2 – 210.1 – what is actus reus here? Causing of the death is a result crime
(this is the act your not supposed to do) --- another human being is the attendant
circumstance (killing a fetus might be the crime but it is not homicide)
Burglary – conduct is breaking and entering, dwelling house of
another at night are all attendant circumstances, intent to commit a
felony therein (mens rea)
Attendant circumstance – condition that must be present, in conjunction with the
prohibited conduct or result

CHAPTER 5: MENS REA

A. Nature of “Mens Rea”
UNITED STATES v. CORDOBA-HINCAPIE
United States District Court, E.D. New York, 1993.
Black Letter Rule: To be guilty of a crime which has as one of its elements, mens rea, the criminal must
have a guilty state of mind.
Actus non rule: an act does not make the doer of it guilty unless the mind be guilty; that is, unless the
intent be criminal.
Broadly speaking mens rea is – morally culpable state of mind- in this case the defendant is guilty is she
commits the social harm of the offense with any morally blameowrty state of mind; it is not significant
whether she cause the social harm intentionally, or in some other blameworthy mental state( i.e. recklessly)
Courts tend to use the more narrow version of mens rea- which refers to the mental state the defendant
must have had with regard to the social harm elements set out in the definition of the offense. this is the
elemental meaning of mens rea using this meaning the defendant may not be guilty of the offense , even id
she had a culpable state of mind if she lacks the mental state defined in the crime. If the crime statute said
intentional killing and she recklessly but unintentionally killed then no mens rea.

REGINA v. CUNNINGHAM
Court of Criminal Appeal, 1957.
Facts: A thief stole a gas meter from the basement of a house, which caused the gas to leak into an
adjoining house and partially asphyxiate an elderly woman.
Procedural History: Appeal after a conviction for unlawfully and maliciously poisoning a person.
Issue: Will a mens rea requirement of “maliciousness” be satisfied by a finding that the actor acted
“wickedly” when he performed the proscribed acts?
Black Letter Rule: The mens rea requirement is satisfied by a showing of either intentional or reckless
conduct; a showing of malice or wickedness will not suffice.
Holding: In favor of defendant, quashed.
Analysis: In order to satisy the mens rea requirement of maliciousness the actor must either intentionally
set out to cause the harm that resulted, or he must have been reckless with regard to whether the harm
would in fact result. He would be acting recklessly if he chose to disregard the foreseeable risk of harm
and to act anyway.
Judge in trial court defined malicious as wicked – too broad. They could convict if they found that
Cunningham was doing something he knew he should not have been doing (something that was wrong).
Because the jury was erroneously instructed as to the meaning of malicious, we cannot be sure beyond a
reasonable doubt that they found that Cunningham acted with a requisite state of mind.
Trial court followed the “culpability” approach to mens rea – which would support a finding of guilt based
on general immoral or improper motives.
Appellate court applied the “elemental” approach to mens rea – the proper inquiry was whether
Cunningham acted intentionally or recklessly to cause the gas to escape and poison someone.

Note 2 --- Trial court looked at it culpability and appellate court looked at elemental
Culpability – trial court opinion – if you engage in the acutus reus with any morally culpable mind state
Elemental – appellate court opinion – with respect to the socially harm you act intentionally or knowingly
or purposely or recklessly --- the elemental sense of mens rea is that it is necessary to commit the actus
reus with respect to the social harm that is prescribed to the crime you have to act intentionally or
recklessly

B. General Issues in Proving Culpability

1. “Intent”
PEOPLE v. CONLEY
Illinois Appellate Court, 1989.
Facts: After an altercation at a high school party, two boys got into a fight where one boy hit the other in
the face with a wine bottle, which caused extensive injuries to the other boy’s mouth and teeth.
Procedural History: Appeal following conviction for aggravated battery
Issue: In order to satisfy the requirement of INTENT, is it necessary to find that the actor consciously
desired to bring about a particular harm? Did the defendant intend to cause permanent disability?
Holding: There is sufficient evidence to support finding of intent to cause permanent disability beyond a
reasonable doubt
Black Letter Rule: A person acts with intent if it is his conscious object to cause a social harm or he
knows that such harm is almost certain to occur as a result of his conduct.
Analysis: Intent is satisfied if it can be shown that a person consciously desires to bring about a particular
harm or that he knows that his conduct is practically certain to cause the harm. Defendant argues that it is
not enough for the state to prove that he intended to cause some harm. Rather, for his conviction,
defendant maintains that the state must have proven that he intended to cause a permanent disability. Court
agrees that the State was required to show that defendant intended to cause a permanent disability because
that is the standard that is enunciated in the statute.
Statute: A person who intentionally or knowingly causes great bodily harm or permanent disability while
committing a battery has committed an aggravated battery.
Whether the State has met its burden of proving intent, turns on the statutory meaning of the words
intentionally and knowingly. A person acts intentionally if it is his conscious desire or purpose to bring
about a result. He acts knowingly if he is consciously aware that the result is practically certain to occur
from his conduct.
The defendant introduced no evidence to negate a finding of intent. A jury confronted with the
circumstances, such as the force of the blow, the weapon used, and the absence of a warning, could have
inferred the defendant either intended to cause a permanent disability or knew that a permanent disability
could certainly result.

Knowledge and intent important in battery statute

Tries to argue that the he did not intend to cause permanent disability
State has to prove he engaged in conduct with a mens rea to intentionally or knowingly to cause permanent
disability --- State has proved this guy took a wine bottle and whacked someone in the head with it but
intended to hurt this guy? --- the trier in fact can make inferences ---- jury is free to draw inferences to
what is known in your head
Illinois law distinguishes between intentional and knowledge

Sandstrom v. Montana
Natural and probable consequences doctrine – presumption that one intended the natural and probably
consequences of his actions. This is problematic when used in conjunction with proving causation or intent
in criminal cases. The Supreme Court has ruled that a presumption that a person intended the natural and
probable consequences of his actions unconstitutionally alleviates the persecution’s burden of proving
every element of a crime and therefore violates the Due Process Clause. A judge is not constitutionally
permitted to instruct the jury that it may presume intent from the resulting outcome. Instead, the jury is
permitted to infer. Can not tell the jury that they have to presume anything in what state has to prove

Battery: an unlawful application of force to the person of another. Actus reus clear- slightest touch counts.
Mens rea less clear- some courts say needs to be intentional others say can criminal negligence is sufficient

Common law intent - in the context of result crimes (battery murder etc) the term intent is defined to
include not only those results that are the conscious object of the actor ( what he wants to occur) but also
those results that the actor knows are virtually certain to occur from his conduct, even if he does not want
them to arise

Proving intent- the ordinary presumption is that a person intends the natural and probable consequences of
his actions

Inference- it is reasonable for a juror like anyone else to infer that a person ordinarily intends the
foreseeable consequences of his actions. Cant presume intent have to work with the facts

Transferred Intent- when a defendant intends to cause harm to one person but accidentally causes harm to
another, courts typically assert what has come to be known as transferred intent.- this works because it's the
unlawful intent not to kill the intended victim that matters, but the unlawful intent to kill a person

But justice Mosk says that transferred intent can be mischievous if applied in a wrong way- i.e. the transfer
from one intended crime (social harm) to another. Rather than the transfer of intent of the same crime from
one victim to another. But there are many policy problems with applying this doctrine (transferred intent)
universally

If you aim and intend to kill x and shoot y instead you can be charged with intentionally killing y and
attempted murder of x--. Transferred intent

Do not transfer intent from social harm to social harm, you transfer intent from victim to victim

General intent and specific intent don't have universal application

General- 1) when no particular mental state is set out in the definition of the crime and thus the prosecutor
need to only prove the actus reus of the offense was preformed with a morally blameworthy state of mind
2) crimes that permit conviction on the basis of a less culpable mental state, such as recklessness or
negligence 3) ANY mental sate whether expressed or implied in the definition of the offense that relates
solely to the acts that constitute the criminal offense. So like intentional application of force in battery is
general intent

Specific-1) is an offense in which mental state is expressly set out in the definition of the crime 2)
sometimes SI is used to denote an offense that contains in its definition the mens rea element of the intent,
or knowledge 3) It designates a special mental element that is required above and beyond any mental state
required with respect to the actus reus of the crime. 3 types of mental elements 1) to be guilty of offense
state must prove an intention by actor to commit future act Like possession of marijuana with intent to sell
2) an offense may require proof of a special motive or purpose for committing the actus reus- offensive
contact upon another with intent to cause humiliation and 3) Some offenses require proof of the actors
awareness of some attendant circumstances (intentional sale of obscene literature sold to persons known to
be under age of 18) If one of these special mental elements is found in the def of an offense, the crime is
characterized as specific intent.

Specific Intent --- does not have a lot of application anymore because MPC is statutory scheme many states
adopt or hold in large part – MPC does away with specific intent --- 1) distinguish between the culpability
theory of mens rea and the elemental theory of mens rea ---- elemental theory is specific intent --- 2)
distinguish between crimes which have intent or knowledge as the mens rea and those which have
recklessness and negligence as applicable mens rea --- intent and knowledge are specific intent ---3) main
distinction involves situation where the mens rea applies only to the conduct that is required to commit the
crime as opposed to intent to commit a specific future act, proof of special motive or purpose, proof of the
actor’s awareness of an attendant circumstance

If no mens rea, then any culpable state of mind will do (general intent)

2. The Model Penal Code Approach

2.2 of model penal code for full mens rea def- code applies an elemental approach to
mens rea – pros must prove that the defendant committed each material element of
the charged offense with the particular state of mind required in the definition of
the crime. The code abandons the countless common law and pre-Code statutory
mens rea terms and replaces them with just four culpability terms: purposely,
knowingly, recklessly, and negligently.
Gets rid of the taxonomy of the mens rea
Page 980, 981
General Requirements of 2.02
(1) Minimum Requirements of Culpability: Except as provided in Section 2.05 (narrow class of strict
liability offenses), a person is not guilty 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, which may involve: 1) the nature of the forbidden conduct, 2) the attendant
circumstances, 3) the result of conduct.
(2) Kinds of culpability defined
a. Purposely (implies intent)
i. if the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result;
and
ii. if the element involves the attendant circumstances, he is aware of the existence
of such circumstances or he believes or hopes that they exist
b. Knowingly
i. if the element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or that such circumstances exist;
and
ii. if the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result
c. Recklessly (aware and disregard risk) (conscious disregard)
i. A person acts recklessly with respect to a material element of an offense when
he consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a nature
and degree that, considering the nature and purpose of the actor's conduct and
the circumstances known to him, its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe in the actor's
situation
ii. First, the jury must examine the risk and factors that are relevant to how
 substantial it was and to justifications for taking it. Second, the jury is to make
the culpability judgment in terms of whether the defendant’s conscious disregard
of the risk justifies condemnation.
d. Negligently (does not involve a state of awareness) (unaware risk)
i. A person acts negligently with respect to a material element of an offense when
he should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a nature
and degree that the actor's failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person would observe in
the actor's situation
ii. How do you impose criminal liability on people that are merely negligent?
e. Offense Silent as to Culpability
i. Unless the kind of culpability sufficient to establish a material element of an
offense has been prescribed by law, it is established if a person acted purposely,
knowingly, or recklessly. This accepts as the basic norm what usually is
regarded as the common law position.
Notes
1) A) Vanessa – purposely, Xavier – knowingly
B) Sam – Negligently (she really believed this would work)
C) Sam – Recklessly (conscious of fact that this is a risk)
2) A) Purposely under transferred intent

3. “Knowledge” of an Attendant Circumstances (The “Wilful Blindness” Problem)

STATE v. NATIONS
Missouri Court of Appeals, Eastern District, 1984.
Facts: A nightclub owner was charged with endangering the welfare of a child less than seventeen years
old when she hired a sixteen year old to dance in her club. She claimed that she had asked the girl for
identification and that she though the girl was eighteen
Procedural History: Appeal from a conviction for endangering the welfare of a child less than seventeen
years old.
Issue: If a statute requires a person to act “knowingly” with regard to a certain fact, can she be convicted if
she does not have actually knowledge of the fact?
Black Letter Rule: Unless the applicable criminal code states otherwise, a requirement that a person
commit a certain act “knowingly” with respect to a particular fact will not be satisfied unless the person had
actual knowledge of the existence of the particular facts
Holding: Judgment reversed.
Analysis: Rule: A person commits the crime of endangering the welfare of a child if: He KNOWININGLY
encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or
tends to cause the child to come within the provision of subdivision (1) c.
Criminal code in Missouri defines knowingly as actual knowledge. A person acts knowingly with respect
to attendant circumstances when he is aware that those circumstances exist. Although the Criminal Code is
based on the MPC, the state legislature did not define knowingly as broadly as does the MPC. Under the
MPC a person act knowingly with respect to a particular fact if he has actual knowledge of the existence of
the fact or he is aware of a high probability of the existence of the fact. Therefore, the MPC contemplates
knowledge in cases where the actor willfully blinds himself to the existence of the fact, or deliberately
chooses to remain ignorant. This court feels this definition of knowledge is identical to recklessness. In this
case, the State did not prove that Nations knew that the girl was under seventeen years old.
How does Model Penal Code deal with it?
MPC --- 2.02 (7) --- knowingly and recklessly is very close --- knowledge is aware of a high probability of
existence even though knowledge does not exist
Wilful Blindness – purposely avoid learning the truth – ostrich instruction
2 interpretations:
1) actor intentionally committed the prohibited act
2) proof that the actor intentionally performed the prohibited act in bad faith, with a
wrong motive, or in violation of a known legal duty
 4. Problems in Statutory Interpretation
UNITED STATES v. MORRIS
United States Court of Appeals, Second Circuit, 1991.
Facts: A computer hacker intentionally unleashed a worm virus onto the Internet while it was in its nascent
stages. Although he did not mean to cause any damage, he underestimated the copy rate of the worm and
subsequently caused the crash of several high level government computer systems.
Procedural History: Conviction for violating Computer Fraud And Abuse Act of 1986.
Issue: Is a court required to determine the legislative intent behind a criminal statute if it is ambiguous as to
whether a mens rea term modifies all or only some of the elements of the offense?
Black Letter Rule: If a statute is ambiguous regarding whether a mens rea term applies to all or only some
of the elements of a crime, the court should examine the legislative intent to determine the correct
interpretation.
Holding: Judgment affirmed.
Analysis:
Statute: Covers anyone who intentionally accesses a Federal interest computer without authorization and by
means of one or more instances of such conduct alters, damages, or destroys information in any such
Federal interest computer, or prevents authorized use of any such computer or information, and thereby
causes loss to one or more others of a value aggregating $1,000 or more during any one year period.
Some courts have interpreted similar statutes by taking into account sentence structure and the rules of
grammar. The court is no convinced that punctuation should be the only consideration. Congress amended
the Computer Fraud and Abuse Act of 1986 in 1988 to better reflect intent. At that point, Congress added
the Section now at issue. The 1988 amendment changed the mental state requirement from knowingly to
intentionally. This court thinks that the legilstive history indicates that Congress intended the mens rea
requirement of intentionally to modify only the access phrase, and not to apply also to the damages phrase.

The modern view is that a mens rea term placed at the beginning of the statute modifies all of the phrases in
the statute. That is the view that the Model Penal Code espouses in Section 2.02 (4). According to the
Model Penal Code, a single mens rea term in a statute modifies each actus reus element of the offense,
unless the legislature plainly indicates a contrary purpose. One common exception is when the acuts reus
term is an attendant circumstance. Another common exception is when the mens rea requirement is set off
from the rest of the statute by punctuation. In that case, it may be evident that the mens rea term was
intended only to modify the actus reus provision within the set off phrase.

C. Strict Liability Offenses

UNITED STATES v. CORDOBA-HINCAPIE
United States District Court, E.. New York, 1963.
Analysis: In almost every instance, mens rea is a required element for criminal liability to exist. Although
the rule used to be that no criminal liability could attach absent mens rea, this rule has undergone
significant changes over time. The law now recognizes that a man can be convicted of some kinds of
crimes even without a guilty frame of mind – without a mens rea. Probably the most common examples of
crimes that do not require a mens rea for conviction are those crimes categorized as public welfare
offenses. These strict liability crimnes generally arise from the need to protect the public welfare through
the orderly administration of laws promulgated for the collective good of society. Strict liability crims
permit the wrongdoer to be convicted of crime regardless of whether he had a guilty mind when he acted.
When the penalties begin to get more harsh, our criminal justice system generally requires mens rea from
criminal liability to exist, one exception is statutory rape.
Essetial point is that to the extent that one or more acuts reus elements of an offense are strict
liability in nature – if there is no mens rea to negate as to those elements – then there is no basis for
acquittal on the ground of mistake of fact or law to those strict liability elements.

STAPLES v. UNITED STATES

Supreme Court of the United States, 1994.
Facts: A man was charged with violating a federal statute that required registration of automatic weapons
because police found a modified AR-15 civilian rifle (similar to the M-16 military machine) in his home.
Procedural History: Conviction in trial court for violating a federal registration statute. Court of appeals
affirmed.
Issue: If a federal criminal statute is silent as to the mens rea requirement, will it be construed as a strict
liability offense?
Black Letter Rule: If a federal crime does not expressly state a mens rea requirement, the determination of
the necessary mental state is made by construing that statute itself and by examining the intent of Congress.
Holding: Judgment for court of appeals reversed.
Analysis: A statute that is silent as to the mens rea requirement should not be construed as dispensing with
mens rea absent a clear indication of congressional intent to dispense with the requirement. In most cases,
recognized strict liability offenses only when they involved the regulation of potentially dangerous or
harmful items. In those cases, we have charged the possessor of such an item with the knowledge that the
item is dangerous and that the responsibility is his to determine whether the law regulates his conduct. But
we have not traditionally done away with the requirement of mens rea with regard to statutes that regulate
otherwise lawful and innocent conduct. Citizens of our country have traditionally owned guns, and it is
lawful to do so. The prevalence of gun ownership in our country militates against dispensing with a mens
rea requirement that a person know the characteristics of his fun make it illegal. We do not believe that
Congress, by remaining silent on the point, intended that there be no requirement of mens rea with respect
to this statute. Additionally, the act imposes a penalty of up to ten years imprisonment. We have
historically examined the nature of the penalty provided for by the statute when determining whether the
statute subjected the violator to strict liability. Generally, small penalties that attach to public welfare
offenses justify dispensing of the mens rea.
Dissent: The act does indicate the express intent of Congress to dispense with a mens rea requirement
because it does not contain a knowledge requirement at all. Nor does the statute describe a common law
offense.
Public welfare offenses:
1) they regulate dangerous or deleterious devices or products or obnoxious waste materials
2) they heighten the duties of those in control of particular industries, trades, properties or
activities that affect public health, safety, or welfare
33) they depend on no mental element but consist only of forbidden acts or omissions
This act is silent as to a knowledge requirement, and silence on the part of Congress indicates that it
intended to alleviate the burden of proving that the defendant knew that his conduct was unlawful.

He is saying he did not have the mens rea that made possession of this thing illegal
The court is trying to figure out what Congress intended here (Legislative intent)
1) Presumption in common law against strict liability – we want a mens rea because we connect it
with moral blameworthiness and it is your mind (not just doing the action) – common law does
not like strict liability
2) Exceptions to this idea – in what situations do we apply strict liability – public welfare – minor
violations or conduct is so dangerous you engage in it at your risk
Court says if you have a grenade you have it at your own risk, people don’t know if food stamps are bad
are not – is it more like a grenade or a food stamp?
We look at cases where we have dispensed with mens rea – court says its more like a food stamp because
many Americans own guns and it is normal for people to have guns
Dissent – absence of mens rea – this is not a common law offense, this is a new sort of offense, a regulatory
offense and if congress wanted to have a mens rea it would have said that and it did not and the fact that
this is not a common law offense and it is a new law and if congress wanted to have a mens rea they would
have done so
Strict liability offenses either where there are regulatory offenses (can’t have mens rea because system
would break down)
Model Penal Code about Strict Liability – what is a violation (1.05) – do not apply when dealing with
something minor

Criticism of Strict Liability

1) Does not deter
2) unjust to condemn a person who is not morally culpable

Morissette v. United States

Section 1.13.10 – if it is a material element and statute is silent then mens rea is established if show that it
was reckless, purposely, or knowingly

GARNETT v. STATE
Court of Appeals of Maryland, 1993.
Facts: A 20-yeard old man with an IQ of 52 has sexual intercourse with a 13 year old whom he believed
was 16.
Procedural History: Trial court convicted Defendant of statutory rape.
Issue: Is statutory rape a strict liability offense to which mistake of age is no defense?
Black Letter Rule: Mistake of age is not a defense to the strict liability crime of statutory rape
Holding: Affirmed
Analysis: Legislatures have created strict liability statutes dealing with public health and welfare issues,
usually imposing fines for misconduct. Statutory Rape, on the other hand, imposes a sentence of up to 20
years. The MPC recognizes strict liability solely for offenses deemed violations defined as wrongs subject
to fines, forfeitures, or other civil penalty.
We think it sufficiently clear that Maryland’s second degree rape statute defines a strict liability offense
that does not require the State to prove mens rea, it makes no allowance for a mistake of age claim.
Seventeen state have allowed this defense. The silence to mens rea in Maryland results from the legislative
design in liability. Even among states with an available mistake of age defense, most do not allow the
defense where the complainant is aged 14 years or less. Any new provision in Maryland law that
introduces a mistake of age defense must result from legislative amendment.
Dissent 1: It seems to him that the knowledge factors, and particularly the mental ability to appreciate that
one is taking a risk, constitute the mens rea of the offense.
Dissent 2: To hold that the Government need ot prove mens rea with respect to the age of the complainant,
or that the defendant may not offer a defense, offends fundamental principles of justice and is inconsistent
with due process. He feels that he should be allowed the opportunity to produce evidence supporting his
claim of mistake of age. If he is able to produce such evidence, then the government must show beyond a
reasonable doubt that the act was committed without any mistake of fact.

Statutory Rape is strict liability – if you have sex with someone you take a chance that they are underage

Weakness of Strict Liability Claim

1) Extensive government civil regulations and strict liability in tort achieve the same deterrent effect
2) the judicial efficiency of dispatching minor offenses without an inquiry into mens rea is attained equally
by decriminalizing them, and hearing such cases in a regulatory or administrative forum
3) the small penalties imposed for most strict liability offenses oblige the public to engage in a pernicious
game of distinguishing “real” crime from some lesser form of crime
4) some strict liability laws may result from careless drafting
5) strict liability dilutes the moral force that the criminal law has historically carried

D. Mistake and Mens Rea

1. Mistake of Fact
What does Model Penal Code say about Mistake of Fact? Section 2.04 – mistake or fact of law is a defense
It is negates the purpose, knowledge, belief, recklessness or negligence required to establish a
material element of the offense
Specific Intent Crime – unreasonable or reasonable mistake there is no culpability if negates intent
General Intent Crime – does mistake negate moral culpability?
2 doctrine:
1) Was the mistake reasonable? --- if it was the no culpability (problem here is if you act
negligently and impose criminal liability on them)
2) Moral wrong v. Legal wrong – mistake has to be reasonable
Moral wrong – if the mistake was reasonable but what you were doing was morally
wrong, then you still have liability
Legal Wrong – if the mistake was reasonable but you would have been guilty of a less
serious offense if it was as you supposed it to be then you are liable for the greater
 offense (MPC would handle it the complete opposite way)
PEOPLE v. NAVARRO
Appellate Departments, Los Angeles County Superior Court, 1979.
Facts: A man was charged with theft for taking four wooden beams from a construction site, but argues
that he had no intent to steal the beams because he though they had been abandoned.
Procedural History: Conviction of grand theft.
Issue: Does a mistake have to be reasonable in order to negate the mental state required by a specific intent
crime?
Black Letter Rule: With regard to a specific intent crime, a mistake of fact is a defense if the mistake
negates the specific intent required in the definition of the crime.
Holding: Judgment reversed
Analysis: Even an unreasonable mistake will be a defense to a specific intent crime if it negates the
specific mens rea requirement. Defendant was charged with theft which is a specific intent crime. The
person must INTEND to steal the property. Defendant presented evidence that showed that he lacked the
specific intent required by the wording of the offense (he thought beams had been abandoned). The
Supreme court has stated “where a felonious intent must be proven it can be done only by proving what the
accused knew.” We understand the Supreme Court’s words to mean that it is not enough to show that a
reasonable man would have known the true nature of the facts. Instead, where specific intent is required to
convict a person of a crime, the prosecution must show that the accused actually possessed the requisite
intent. In these circumstances, it does not matter if the alleged mistake is reasonable or unreasonable. If a
mistake as to the facts or law negates the specific intent required by the statute, the accused is entitled to a
defense. The trial court erred when it instructed the jury that the defendant could be acquitted only if the
jury found that he entertained a reasonable and good faith belief that he had the right to take the beams.
People v. Wetmore – Supreme court held that the trial court had erred erroneously refused to consider the
evidence that, because of mental illness, defendant was incapable of forming the specific intent required for
conviction.
People v. Devine – Where a felonious intent must be proven it can be done only by proving what the
accused knew.
Rule: If no specific intent or other special mental element is required for guilt of the offense charged, a
mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds.

Moral Wrong Doctrine – Even if an actor’s mistake of fact is reasonable (and, thus, no moral culpability
can be found on the basis of the mistaken belief), his intentional commission of an immoral act serves as
the requisite blameworthiness to justify conviction (assuming, of course, that the actus reus of the offense
was committed).
Legal Wrong Doctrine – works in the same manner as the moral wrong doctrine, except that the term
illegal substitutes immoral. If a defendant’s conduct based on the facts as he believes them to be,
constitutes a crime – not simply an immorality – he may be convicted of the more serious offense of which
he is factually guilty.

2.Mistake (or ignorance) of Law

Generally ignorance of the law is NO DEFENSE
Exceptions:
1) Go to an official and they tell you one thing and you rely on them – official pronouncement from person
who is charged with enforcing the law – very narrow exception
What does Model Penal Code Say? Make sure we know 2.04 – mistake of law if negates element can be a
defense
2) Lambert Exception – based on your presence and it is not bad in itself
3) Strict liability offense and ignorance of law negates an element of the attempt, treat mistake of law like a
mistake of fact (Cheek) – requirement of the law is that you have to know there is a violation of law
PEOPLE v. MARRERO
Court of Appeals of New York, 1987.
Facts: Marrero (defendant), a federal corrections officer, was convicted for violating a statute which eh
believed gave him the right to carry a gun.
Procedural History: Trial court dismissed on defendant’s motion to dismiss. Convicted in appellate court
of unlawful possession of a pistol, in violation of Penal Code 265.02.
Issue: Does misinterpretation of a statute excuse its violation, where the statute does not have a mens rea
requirement?
Black Letter Rule: An erroneous interpretation of the law does not excuse violation of the law, even
where interpretation is reasonable.
Holding: Affirmed appellate court conviction.
Analysis:
265.20 (a) (1) – peace officers were exempt from criminal liability under the firearm possession statute.
Defendant argued that guard in a federal prison was a peace officer by virtue of the statutory language any
penal correctional institution.
Law 15.20 – Effect of ignorance or mistake upon liability
A mistake of law does not excuse the commission of prohibited acts. A weapons statute imposes criminal
liability regardless of intent. The mistake of law defense is available to defendants who have relied on an
official statement of law, either expressed in a statute or by a public servant or agency charged with
administering, enforcing, or interpreting the law. Defendant claims that his conduct was based on an
official statement of the law contained in the statute itself. Allowing defendant this exception would make
mistake of law a generally applied or available defense, rather than an unusual exception. Defendant’s
conduct was never authorized by the statute, he only thought it was. If defendant’s arguments were
accepted, the exception would swallow the rule, Mistakes of law would be encouraged. Wrong-minded
individuals would use the defense to avoid conviction. This defense should not be recognized, except
where specific intent is an element of the offense where the misrelied upon law has later been properly
adjudicated as wrong.
Dissent: He says court should look to the particular words other statute in question. Here the is one obvious
meaning: if a defendant founded his interpretation on an official interpretation of the statute, he should have
a defense. The precise phrase from the MPC limiting the defense to reliance on a statute “afterward
determined to be invalid or erroneous” was omitted from the NY penal code. How can the legislature be
assumed to have enacted the very language that it specifically rejected? Majority also suggest the
Legislature intended the defense to be available solely in acts involving mala in se offenses, such as
kidnapping (wrong in themselves). However, it is with the regulatory offenses that reasons of policy and
fairness call for a relaxation of the rule limiting the mistake of law defense. He also says that unusual facts
of this case are unlikely to be repeated.

Majority uses Homesian utility of knowledge principle – the point of punishing the legally mistaken ,the
court explained is to encourage the societal benefit of the individuals’ knowledge of and respect for the
law. Were Marrero to be afforded a defense, mistakes about the law would be encouraged.

An exception to the no-excuse rule: “entrapment by estoppel” or “reasonable reliance”

A constitutional exception to the no-defense rule: Does ignorance (as distinguished from mistake) of law
ever excuse?
Lambert v. California – issue is whether a registration act of this character violates due process
where it is applied to a person who has no actual knowledge of his duty to register, and where no
showing is made of the probability of such knowledge – conduct is wholly passive (failure to
register)

CHEEK v. UNITED STATES

Supreme Court of the United States, 1991.
Facts: A pilot who had previously filed tax returns stopped filing them because he became influenced by a
group who believed that the income tax system was unconstitutional. The IRS charged him with willful tax
evasion.
Procedural History: Conviction of tax evasion.
Issue: IS a mistake of law that related to the specific intent of a crime a defense to criminal prosecution?
Black Letter Rule: A mistake of law, either reasonable or unreasonable, will be a defense to a crime if it
negates the specific intent required for conviction.
Holding: Remanded for new trial.
Analysis: The general rule I that a mistake of law is no excuse. A limited exception applies when a mistake
of law negates the specific mental state required for conviction. The statute makes it a criminal violation to
willfully evade federal income tax obligations. Cases have repeatedly interpreted the term willfully to
mean a voluntary, intentional violation of a known legal duty. If because the complexity of the tax laws, an
individual does not know of a legal duty, the mistake affords him a defense because it negates the
requirement that he voluntarily and intentionally violated a known legal duty. This court does not agree
with court of appeals that such a mistake must be reasonable. Even an unreasonable mistake would negate
a finding that the individual knew of a legal duty. In this case, the jury believe that the if the defendant did
not think the federal income tax code treated wages as income, then it could find that he did not know he
had a legal duty to pay income taxes on his wages. The defendant’s constitutional claims do not arise from
a mistaken belief derived from the complexity of the tax code. Instead, his claims indicate that he was
intimately familiar with the applicable provisions of the federal income tax code. He claims that mistake in
that he believed that the tax laws were unconstitutional as applied to him. Because of his mistake belief as
to unconstitutionality, he voluntarily and intentionally did not pay his taxes. His views about
constitutionality of the tax code in general would not preclude a finding that he willfully attempted to evade
the tax laws. The district judge did not err by instructing the jury not to consider the defendant’s views
about constitutionality. The court finds that the lower courts erred by instructing the jury that only a
reasonable mistake on the defendant’s part would constitute a defense.
US v. Murdock – willfully as used in the criminal tax statutes generally to mean an act done with a bad
purpose or with an evil motive.
US v. Bishop (refined Murdock) – willfully as connoting a voluntary, intentional violation of a known legal
duty, and did so with specific reference to the bad faith or evil intent language employed by Murdock.
Dissent: I fear that the court’s decision today will encourage taxpayers to cling to frivolous views of the
law in hope of convincing a jury of their sincerity.

Jury should have been allowed to consider if he had a known duty

He had to willfully violate the tax law – it was not enough that he violated the tax law, he had to know that
money was characterized under the law as income – the mistake of law that he makes negates the element
of the intent – its not just a matter that he didn’t file his taxes, he didn’t think this income was income that
had to be reported – in order to have liability you have to know that there is a law that treats this as
income
Only time you find mistake/ignorance of the law helping the defendant out is in the situation when the
mistake of law is in respect to some aspect of the law other than what the person is being charged with

CHAPTER 6: CAUSATION
A. Actual Cause (Cause-in-fact)
VELAZQUEZ v. STATE
District Court of Appeal of Florida, 1990.
“But for test” – traditionally used this test in determining whether the defendant’s conduct was a cause-in-
fact of a prohibited consequence in result-type offenses such as vehicular homicide. Under this test, a
defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred
“but for” the defendant’s conduct
Substantial-factor test – This anomaly occurs when two defendants, acting independently and not in
concert with one another, commit two separate act, each of which alone is sufficient to bring about the
prohibited result – as when two defendants concurrently inflict mortal wounds upon a human bring, each of
which is sufficient to cause death. The defendants conduct is a cause-in-fact of a prohibited result if the
subject matter conduct was a “substantial factor” in bringing about the said result.

Part of the acutus reus has to cause social harm – voluntary and social harm have to be glued by causation
Causation is only an issue in result crimes (if it id a conduct crime you do not have a causation issue)
Actual Causation – question we ask ourselves is but for defendants voluntary at would social harm have
happened when it did – if the answer is yes then that conduct is an actual cause, that does not mean it is
criminal liability because you need mens rea and a voluntary act

OXENDINE v. STATE
Supreme Court of Delaware, 1987.
Facts: A father is convicted of manslaughter, after beating his six year old child who had been earlier
pushed into a bathtub (causing deathly injuries) by the father’s girlfriend.
Procedural History: Conviction of manslaughter by trial court.
Issue: Is actual causation necessary to the imposition of criminal liability for manslaughter? Would Jeffrey
had died when he died if Oxendine did not cause injury?
Black Letter Rule: Actual causation or causation-in-fact is a necessary prerequisite to the imposition of
criminal liability.
Holding: Reverse trial courts conviction of manslaughter and remand case to Superior Court for entry of a
judgment of conviction and resentence of defendant for the lesser included offense of assault in the second
degree.
Analysis:
Manslaughter – a person is guilty of manslaughter when he recklessly causes the death of another.
Assault in second degree – a person is guilty of assault in the second degree when he intentionally causes
serious physical injury to another person.
In order to convict Oxendine of manslaughter, the State had to show that his conduct caused Jeffrey’s
death. The evidence established that Oxendine inflicted a nonlethal injury upon Jeffrey after his son had,
24 hours earlier, sustained a lethal injury from a previous beating by Tyree. Thus, in order to convict
Oxendine of manslaughter the State was required to show, for the purposes of causation, that Oxendine’s
conduct accelerated the child’s death. The Superior court correctly instructed the jury that contribution
without acceleration is insufficient to establish causation. A finding of medical causation may not be based
on speculation or conjecture. A doctor’s testimony can only be considered evidence when his conclusions
are based on reasonable medical certainty that a fact is true or untrue. The State’s expert medical testimony
was insufficient to sustain the State’s ultimate theory of causation. Both Dr. Inguito and Dr. Hameli, were
unable to state with any degree of certainty that the second injury contributed to the death. They could not
give an opinion if it accelerated his death either. Lower court properly denied Oxendine’s motion for
summary judgment because he could be guilty of a lesser offense.
Acceleration = actual cause
If you accelerate harm then you are an actual cause --- why? Would the social harm have happened
WHEN IT DID --- if the second person did not come along you would have been dead later --- does not
mean both people have same level of criminal responsibility
Experts were not able to state that he accelerated the kids death

If you have 2 people acting in concert with each other then you basically treat them as 1 cause --- they get
messy when you have 2 independent parties acting
If you have 2 independent actors that commit 2 separate but-for causes  conceptual problem --- neither
people are the but-for cause if you logically apply both of them --- 2 devices to use here
1) Substantial Factor – when concurrent sufficient but-for causes they are both but-for causes
because each is a sufficient factor
2) Deal with it the way the MPC does – where you have a situation you ask did the harm happen
but-for the voluntary act would the harm of occurred when and as it did
Obstructive Cause – ie hit by lightning as someone else shoots you, lightning takes you out immediately ---
you are the cause but you get charged with something else such as attempted murder

Note 2:
A. They are both causes but that does not mean that they both have the same level of culpability. D does
not have the requisite mens rea for homicide and X has a much higher level of culpability then D.
B. Doesn’t change anything – they are both causes
C. D’s action does not accelerate the death. D is not a cause of the death. D is going to be liable for
something else.
D. They are both but-for causes because victim would not have died when he did.
E. Would have died at same time no matter what --- Substantial Factor

B. Proximate Cause (“Legal” Cause)

Introductory Comment
The but-for test is too imprecise a standard for determining causal accountability for harm because it fails
to exclude remote candidates for legal responsibility.
The doctrine of proximate or legal causation serves the purpose of determining who or what events among
those that satisfy the but-for standard should be held accountable for the resulting harm.
A person or event cannot be a proximate cause of harm unless she or it is an actual cause, but a
person or event can be an actual cause without being the proximate cause
Issues of proximate cause arise when an intervening force exists
If you satisfy but-for cause you are not going to necessarily be the overall cause because you also have to
be the proximate cause

KIBBE v. HENDERSON
United State Courts of Appeals, Second Circuit, 1976.
Facts: Kibeeis convicted of second degree murder, after robbing, undressing, and abandoning a highly
intoxicated individual on a two-lane highway, who was run over by a pickup truck driven by Blake.
Procedural History: Trial court returned a verdict on charge of second degree murder. Appellate Division
affirmed the conviction on finding that there was sufficient evidence that Stafford’s death was cause by the
appellant’s acts as well as by the acts of Blake.
Issue: Is proximate or legal causation, a necessary element of a criminal conviction?
Black Letter Rule: Proximate or legal causation is a necessary prerequisite to the imposition of criminal
liability.
Holding:
Analysis: In this case the judge failed to define or explain the issue of causation, as the term is used in the
NY statute, in his charge to the jury. Nor did the judge mention the legal effect of intervening or
supervening cause. The omission of any definition of causation, permitted the jury to conclude that the
issue was not before them, or that causation could be inferred merely from the fact that Stafford’s death
succeeded his abandonment by Kibbe. It has been held that where death is produced by an intervening
force, such as Blake’s operation of his truck, the liability of one who put an antecedent force into action
will depend on the difficult determination of whether the intervening force was a sufficiently independent
or supervening cause of death. Similar cases provide that the controlling questions are whether the ultimate
results was foreseeable to the original actor and whether the victim failed to do something easily within his
grasp that would have extricated him from danger. We conclude that the trial judge’s incomplete
instructions took a necessary determination of causation of death from the jury and thereby violated
Kibbe’s constitutional right to have every element of the crime with which he was charged, proven beyond
a reasonable doubt.
They were definitely the but-for cause --- primary factor which determines whether there is proximate
causation is forsseablity – is what we worried about happening did that happen or did something else not
in the scope happen?
Even though you created a risk and harmed somebody and the way the harm happened was so different
that what we though do we feel okay imposing liability on you
Jury should have been instructed that they can consider whether what they did was foreseeable that this
guy would get killed
Is what intervened (which has a close causal relationship) foreseeable or not foreseeable
Responsive dependent intervening cause – if the intervening cause was responsive to the original act as
opposed to coincidental
If it is not foreseeable – independent intervening cause – All I have done is put you in an unfortunate spot
and the harm that occurs is not foreseeable

Another factor that comes into this is intended results – ie I want to poison you so I give the nurse the
poison and say give this to X it is his medicine and the nurse makes a decision you do not need the
medicine so the nurse puts the medicine off to the side – a child comes along and sees a bottle of medicine
and says here take this medicine and X is now dead --- there have been 2 intervening force (the nurse and
the kid) --- original is the but-for cause but 2 other people have acted

Other factors in determining proximate causation:

1) omission – no matter how unforeseeable an omission may be, this negative act will not cut off
liability of an earlier positive act.
2) Intended consequence – any intended consequence of an act is proximate
3) Apparent Safety Doctrine – when a person reaches a position of safety, the original
wrongdoer is no longer responsible for any ensuing harm
 4) Free, Deliberate and informed human intervention – one an informed and voluntary human
action is discovered, this doctrine suggests that the law will not trace back the causal chain any
further
Model Penal Code Approach: Section 2.03
Subsection 2 – addresses cases in which the culpability requirement with respect to the result is
purpose or knowledge
(2)(a) – actual result differs from the result designed or contemplated only in that a
different person nor property was injured or affected or in that the injury or harm
designed or contemplated would have been more serious or extensive than that which
actually occurred
(2)(b) – actual result involves the same kind of injury or harm as the designed or
contemplated, but in which the precise injury inflicted was different or occurred in a
different way
Subsection 3 – deals with offenses in which recklessness or negligence is the required culpability
and in which the actual result is not within the risk of which the actor was aware of, in the case of
negligence, of which he should have been aware of
Talks in terms of liability – the only question is can we say that the defendant still has the
requisite level of culpability (no proximate causation analysis), to the extent that it happened in a
different way the only question is do we say the person still is culpable?
Does the intervening force effect culpability

VELAZQUEZ v. STATE
District Court of Appeal of Florida, 1990.
Facts: A “drag racer” is prosecuted for vehicular homicide, after participating in a race on a public road,
where the other racer lost control of his car, drove through a guardrail, and died.
Procedural History: Trial Court found conviction of vehicular homicide
Issue: Is causation a necessary element to the imposition of criminal liability?
The sole basis for imposing liability is the defendant’s participation in the race.
Black Letter Rule: Causation is a necessary prerequisite to the imposition of criminal liability
Holding: Judgment reversed with directions to grant the defendant’s motion to dismiss.
Analysis: There are 2 statutory elements to vehicular homicide: 1) the defendant must operate a motor
vehicle in a reckless manner likely to cause the death of, or great bodily harm to another and 2) the reckless
operation of a motor vehicle must be the proximate cause of the death of a human being
It seems clear that the proximate cause element requires, at the very least, a causation-fact-test, the
defendant must be the cause-in-fact of the death of a human being. A defendant’s reckless operation of a
motor vehicle is cause-in-fact of the death of a human being, if the subject death would not have occurred
but for the defendants reckless driving, or would not have happened in the absence of such driving. In rare
cases the but for test fails. In these rare cases the courts have followed the substantial factor test.
Specifically, the defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a
substantial factor in bringing about the said result. Even where a defendant’s conduct I a cause-in-fact of a
prohibited result, courts throughout the country have for good reason declined to impose criminal liability
1) where the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment of the
danger created by the defendant’s conduct or 2) where it would otherwise be unjust, based on fairness and
policy consideration to hold the defendant criminally responsible for the prohibited result. A person must
be the cause-in-fact and proximate cause of a specific result.
J.A.C v. State – it would be unjust to hold the defendant criminally responsible for the passenger’s death
because the passenger in effect ,killed himself by his own reckless conduct.
State v. Peterson

Note 3:
A. Situation of gross negligence and it is not considered to be foreseeable and it breaks the causal chain
B. Yes R is liable.
C. B would be liable. You take the victim as you find them.
D. D s proximate cause.

C. Concurrence of the Elements

STATE v. ROSE
Supreme Court of Rhode Island, 1973.
Facts: An automobile driver is convicted of negligent manslaughter, after hitting a pedestrian, and
dragging the pedestrian who was lodged underneath the vehicle.
Procedural History: Trial Court convicted for leaving the scene of an accident and negligent
manslaughter.
Issue: Must the elements of a crime all occur at the same time in order to impose criminal liability?
Black Letter Rule: Elements of a crime must occur concurrently in order to impose criminal liability for
that crime.
Holding: Judgment affirmed on leaving scene of accident. Judgment reversed on vehicular manslaughter.
Analysis: The court first looked at defendant’s contention that the trial court erred in denying his motion
for a directed verdict. In a criminal case, where the evidence adduced by the state and the reasonable
inferences to be drawn therefrom, even when viewed in a light most favorable to the state, are insufficient
to establish guilt beyond a reasonable doubt, the court must grant the defendant’s motion for a directed
verdict. Rose argues hat the evidence didn’t exclude any reasonable hypothesis or theory of innocence.
Concerning the indictment for manslaughter, Rose directs our attention to the fact that the court charged the
jury that there was no evidence in the case of culpable negligence on the part of Rose, up to and including
the time when McEnery was struck by the station wagon. The court further charged the jury that in order to
find Rose guilty of manslaughter, it would be necessary to find that McEnerey was alive immediately after
the impact and that the conduct of defendant following the impact constituted culpable negligence. An
examination of the testimony of the medical witness makes it clear that, in his opinion, death could have
resulted upon the initial impact. He also testified that death could have resulted a few minutes after impact.
The evidence shows death could have occurred after Rose drove away and would be consistent with guilt.
On the other hand, it is consistent with a finding that McEnerey could have died instantly upon impact and
therefore not be guilty.

CHAPTER 7: CRIMINAL HOMICIDE

A. Overview
1. Homicide Statistics
2. Common Law Origins and Statutory Reform
American Law Institute, Model Penal Code and Commentaries, Comment to 210.2
1. Common-Law Background – At common law, murder was defined as the unlawful killing of another
human being with malice aforethought.
Malice Aforethought: 4 states of mind (mens rea)
1. Intent to kill (awareness that the death of another would result from one’s actions)
2. Intent to cause grievous bodily harm (knowledge)
3. Depraved heart murder – murder unintentional homicide under circumstances
evincing a depraved mind or an abandoned and malignant heart, “implied” or “presumed”
intent to kill or injure, the essential concept was one of the extreme recklessness
regarding homicidal risk
4. Intent to commit a felony – strict liability for homicide committed during the
commission of a felony
At common law distinguish between murder and manslaughter (homicide without malice
aforethought and without justification or excuse)
Voluntary Manslaughter
Involuntary Manslaughter
2. Antecedent Statutory Variations – Division of murder into degrees, a change initiated by the
Pennsylvania legislation in 1974 – distinguishing 1st and 2nd degree murder to confine the death penalty
American Law Institute, Model Penal Code and Commentaries, Comment to 210.3
1. Common-Law Background – Initially it did not distinguish murder from manslaughter – statutes sought
to differentiate between the two – the courts defined murder in terms of the evolving concept of malice
aforethought and treated manslaughter as a residual category for all other criminal homicides
2. Antecedent Statutory Variations
Federal Manslaughter Provision: Manslaughter is the unlawful killing of a human being without
malice. It is of two kinds:
Voluntary – upon sudden quarrel (adequately provoked) or heat of passion
 Involuntary – in the commission of an unlawful act not amounting to a felony, or in the
commission in an unlawful manner, or without due caution and circumspection, of a
lawful act which might produce death, greater than ordinary negligence or misdemeanor
manslaughter rule
Statutes that followed this pattern typically departed from the common law by providing a grading
differential between voluntary and involuntary manslaughter
Eventually statutes evolved as a general matter, many statutes kept the common law structure, but some did
not and later part 18th century Pennsylvania decided to classify murder into 2 degrees (comes out of the
statutory evolution of criminal homicide) --- distinguish homicides that should get death penalty and those
that should not get the death penalty
Pennsylvania 1st degree murder – lying in wait, poison, willful deliberate or premeditated manor,
or engaged in certain felonies (arson, rape, robbery, burglary)
2nd degree murder – everything else
Voluntary and involuntary manslaughter started being treated differently (at common law there
really was not a distinction)

Model Penal Code

Section 210.1 Criminal Homicide
1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently
causes the death of another human being
2) Criminal homicide is murder, manslaughter or negligent homicide
Section 210.2 Murder
1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when;
a) it is committed purposely or knowingly; or
b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, rape, or deviate sexual intercourse by force
or threat of force, arson, burglary, kidnapping, or felonious escape.
2) Murder is a felony of the first degree [but a person convicted or murder may be sentenced to
death as provided in Section 210.6]
Section 210.3 Manslaughter
1) Criminal homicide constitutes manslaughter when:
a) it is committed recklessly; or
b) a homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is a reasonable explanation or
excuse. The reasonableness of such explanation or excuse shall be determined from the
viewpoint of a person in the actor’s situation under the circumstances as he believes them
to be.
2) Manslaughter is a felony of the second degree.
Section 210.4 Negligent Homicide
1) Criminal homicide constitutes negligent homicide when it is committed negligently
2) Negligent Homicide is a felony of the third degree

3.Variations on the Theme: Some Homicide Statutes

California Penal Code
187 – Murder defined; death of fetus
188 – Malice, express malice, and implied malice defined
189 – Murder; degrees
192 – Manslaughter
194 – Murder and manslaughter; time of death and computation

Illinois Criminal Code

9-1 – First degree murder
9-1.2 – Intentional Homicide of an unborn child
9-2 – Second Degree Murder
9-2.1 – Voluntary Manslaughter of an unborn Child
9-3 – Involuntary Manslaughter and reckless homicide
9-3.2 – Involuntary Manslaughter and reckless homicide of an unborn child

Michigan Penal Code

750.316 – First degree murder; definition
750.317 – Second degree murder
750.321 – Manslaughter
750.322 – Manslaughter; willful killing of unborn quick child

New York Penal Law

125.05 – Definition of terms
125.10 – Criminally negligent homicide
125.15 – Manslaughter in the second degree
125.20 – Manslaughter in the first degree
125.25 – Murder in the second degree
125.27 – Murder in the first degree

Pennsylvania Consolidated Statutes

2501. Criminal Homicide
A) Offense defined
B) Classification
2502. Murder
A) Murder of the first degree
B) Murder of the second degree
C) Murder of the third degree
D) Definitions
Intentional Killing
Perpetration of a felony
2503. Voluntary Manslaughter
A) General Rule
B) Unreasonable belief killing justifiable
C) Grading
2504. Involuntary manslaughter
A) General Rule
B) Grading
2505. Causing or aiding suicide
A) Causing suicide as criminal homicide
B) Aiding or soliciting suicide as an independent offense

4. The Protected Interest: “Human Being”

PEOPLE v. EULO
Court of Appeals of New York, 1984.
Facts: Shooter shot the victim who was pronounced brain dead. The hospital then harvested the victim’s
organs and turned off life support. Shooter claims hospital killed victim, not he.
Procedural History: Trial court found conviction for manslaughter
Issue: Is a person criminally liable for homicide if he is criminally liable for causing brain death?
Black Letter Rule: When a person is brain dead, he is dead for purposes of assigning criminal liability for
homicide.
Holding: There was sufficient evidence for a rational juror to have concluded beyond a reasonable doubt
that each defendant’s conduct cause the victim’s death and that the medical procedures were not
superseding causes of death
Analysis: Although NY legislature has not yet recognized an extension of death, we do not feel that it
meant to prevent the court from doing so. Thus a person is dead either when their breathing and heart beat
stop irreversibly, or when there is no further brain function.
The definition of death is changing. Even the so-called traditional definition of death mentioned in this case
marks an evolution from “a person is dead when his heart stops and he isn’t breathing” to “a person is dead
when his heart stop and he isn’t breathing, and he cant be revived.” These changes reflect advances in
medicine, as does the expansion of that definition to include brain death.
Originally death use to be understood as when your heart stopped beating and your blood stopped
circulating – now in many places brain death because we have the ability to keep people alive on machines
with their heart beating but all parts of their brain is gone (cerebral, cerebellum, stem)

Note 3 - Year and a day rule – at common law, a defendant could not be prosecuted for murder unless the
victim died within a year and a day of the act inflicting injury  did this because more speculative your
death is on my act the further away it is  usually no longer the case in any more

B. Intentional Killings
1. Degrees of Murder: The deliberation-premeditation formula
willful-deliberate-premeditated worse than other types of murder
willful – specific intent to kill
deliberate and premeditated are treated differently in different states
STATE v. GUTHRIE
Supreme Court of Appeals of West Virginia, 1995.
Facts: Guthrie stabbed his coworker in the neck and killed him. Hey had an amicable relationship, but
after Farley had pocked fun at Guthrie and slipped him with a dish towel- the defendant became
enraged and pulled a knife from his pocket and stabbed the victim in the neck. The defendant suffers
from panic attacks (2 daily) and for more than a year preceding the killing he has suffered from chronic
depression, obsession with his nose, and borderline personality disorder. He suffered a panic attack
immediately before the stabbing*
He is appealing the jury verdict which finds him fulty of first degree murder- “ Under
West Virgina Law- murder by poison, lying in wait imprisonment, starving, or by any willful,
deliberate and permenditated killing, or in the commission of, or attempt to comitt (specified
felonies) is murder of the first degree. All other is murder of the second degree.”
The defendant said that the trial courts instruction to the jury was improper because it was equated
willful deliberate and premeditated with mere intent to kill
Issue: whether the court erred in its jury instruction that willful deliberate and premeditated killing is
equivalent with a mere intent to kill.
Held: yes the trail court judgment is reversed and remanded for new trial
Analysis: the jury was instructed on the Clifford instruction “ that to constitute a willful deliberate and
premeditated killing it is not necessary that the intention to kill should exist for any particular length of
time prior to actual killing, it is only necessary that such intention should come into existence for the
first time at the time of such killing or any time previously”
Furthermore they were instructed to the Schrader instruction saying that “ premeditated murder an
intent to kill need exist only for an instant… and what is meant by the language willful, deliberate, and
premeditated is that the killing be intentional.
The court looked too several other cases in deciding whether this jury in struction is appropriate
State V. Dodd- The word premeditated is something more than deliberate and as such may mean that
the party not only deliberated but had formed his mind a plan of destruction, something more than
deliberate, and not only deliberated but formed a plan of destruction
State V. Schrader: the achievement iof a mental state can immediately preceed the act of killing- so
what is meant by deliberate willful and premeditated is intentional.

But court finds distinctions between premeditation ad deliberation confusing, and furthermore that
allowing the state to prove deliberation and premeditation by showing that intention came into
existence for the first time at such a killing totally eliminates the distinction between murder in the first
and second degree.

So they make modifications to homicide law, overrule the Schrader opinion and adopt State V.
Hartfeild:
“the jury is instructed that murder in the first degree consists of an intentional deliberate and
 premeditated killing which means that the killing is done after a period of time for prior consideration.
The duration of that period cannot be arbitrarily fixed. The time in which to for a deliberate and
premeditative design varies as the minds and temperaments of people differ, and according to the
circumstances in which they may be placed. Any interval of time between the forming of the intent to
kill and the execution of the intent, which is of sufficient duration for the accused to be fully
conscience of what he intended, is sufficient to support conviction for first degree murder”

Say premeditation is more than deliberation but you can premeditate and deliberate in and instant

Notes: 2. People V. Morrin - Michigan’s standard- to premeditate is to think about beforehand; to

deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts
have pointed out; premeditation and deliberation characterize a thought process undisturbed by hot
blood. While the minimum time necessary to exercise this process is incapable of exact determination,
the interval between initial thought and ultimate actions would be long enough to afford a reasonable
man time to subject the nature of his response to a second look.
Seems you can premeditate without deliberation and that premeditation is something that requires real
evaluation

The doctrine of lesser included offenses - A defendant has a right to a jury instruction upon request that
he may be found guilty of an offense included within the offense charged, as long as the fact finder
could reasonably conclude from the evidence at trial that the defendant is guilty of a lesser, but not
greater offense.”

Many use this willful-premeditated-deliberate to distinguish first degree from second degree murder
Think that these (things in cold blood) are worse murders

MIDGETT v. STATE
Supreme Court of Arkansas, 1987.
Facts Father had repeatedly abused 8 year old underdeveloped child. Sat before death he was drinking
whiskey and gave child four blows to stomach and 2 to the back. He died on Wednesday, and medical
examiner said the child died as the result of intra abdominal hemorrhage caused by a blunt force
trauma consistent with having been delivered by a human fist. But despite evidence there is no
evidence that father Killed child having premeditated and deliberated causing death
Procedure: appeal from a trail court jury ruling that he committed 1st degree murder
Issue: whether the states evidence was sufficient to sustain the conviction of first degree murder
Held: No, but enough for second degree, and affirmed
Analysis: The evidence in this case supports only the conclusion that the appellant intended not to kill
the child but to further abuse him or that his intent, if it was to kill the child, was developed in a
drunken heated rage while discipline the child.—neither supports premeditation or deliberation. Other
states have changed their laws to incorporate child abuse in their first degree murder statutes, but this
state hadent. Because there is no evidence of premediatation or deliberation he cannot be convicted of
1st degree murder.
Dissent: based on evidence the jury should have concluded that there was intent to kill the child-
starevd choked abused him. This is not a child neglect case. The law has an objective standard for
those who take human life. If one does acts that result in murder one must pay. The jury found midget
guilty and according to law there is substantial evidence to suppot that verdict. He is guilty of first
degree murder in the eyes of the law
And the degree of murder should be decided by jury.
Intent was to abuse the kid and therefore it is alright to nail him for second degree murder but he did
not act in a willful-deliberate-premeditated way

Aftermath: Arkansas amended criminal code of first degree murder, “when under circumstances
manifesting extreme indifference to the value of a human life a person knowingly causes the death of a
person 14 yrs of age or younger.”

STATE v. FORREST
Supreme Court of North Carolina, 1987.
Facts: defendant convicted of 1st degree murder of father and sentenced to life imprisonment
Father was terminally ill and in the hospital;. He was moved to another room as no extraordinary
measures would be taken to save his life. The defendant visited his father and after being informed by
the nurse that his father was getting better, he shot his father in the head many times. After which he
mad the statements “you cant do anything to him now… I killed my daddt…hes out of suffering…I
promised him” etc.
The exact cause of death was indeed the gunshot wounds
Procedure: the trail court under jury verdict found him guilty of 1st degree murder—Defendant asserts
that the trail court committed reversible error in denying him a motion of directed verdict as for first
degree murder charge. Now before supreme court
Issue: whether the trail courts submission of first degree murder charge was improper because there
was insufficient evidence of premeditation and deliberation presented at trial.
Held no conviction affirmed
Analysis: State v. Jackson “premeditation and deliberation usually must be proved by
circumstantial evidence need to consider 1) want of provocation on part of deceased 2) the conduct and
statements of defendant before the killing 3) threats and declarations of the defendant before and
during the course of the occurrence giving rise to death of the deceased 5) the dealing of lethal blows
after the deceased has been felled and rendered helpless 6) evidence that the killing is done in a brutal
manner.
The court holds as in Jackson the killing was premeditated and deliberate- 1) ill did nothing to
provoke, lying helpless in hospital bed 2) defendant shot him several times (brutality) 3) his statements
fallowing the indictment- he has thought about putting his father out of his misery bc he knew his
father was suffering and that he promised his father not to let him suffer and that he did not think he
could do it he just could not stand to see his father suffer anymore.

Notes: MPC drafters said that the underlying premise of the premeditation formula is that a person who
plans ahead is worse than a person who kills on sudden impulse - this reflects the Forest case
However some of the worst murders are not planned at all

To extent we think willful-deliberate-premeditated ways are worse

Morally much worse what Midget did than what Forest did
Is it really worse? Probably not but You can make argument that when ever anyone sits around and
says I am going to kill this person and plans it out
What do we do? Do we ignore what the law says when moral outrage has to come with the deliberate-
premeditated part of the act and not the purpose of the act
Why treat heat of passion as manslaughter and not this?

2. Manslaughter: “Heat of Passion” Killings

a. Common Law Principles
GIROUARD v. STATE
Court of Appeals of Maryland, 1991.
Adequate provocation
Good statement of what common law categories were to mitigate murder to manslaughter – as a matter of
law if these things provoked you then it was okay (extreme assault, adultery, battery, illegal arrest,
somebody doing something horrible to close relative)  reasonable person must get provoked in that
circumstances  you have to get provoked and there can be no cooling off period
Facts: Steven and Joyce were married but their marriage was stained, one night they got into a domestic
dispute. Where joyce jumped on stevens back and pulled his hair, taunting him. She told him that the
marriage had been a mistake, and also told him that she has seen his commanding officer and filed charges
against him for abuse. Furthermore she said that she filed charges against him in the Judge Advocate
General’s office and that he would probably be court martialed. Steven asked if this was true and she
affirmed it saying she wanted to move out and that she wanted a divorce. He left the bedroom with a pillow
got a knife and stabbed her 19 times. Afterwhich he was very upset- he slit his own writs but did not die
and called the police. After the police arrived he was despondent and unconcerned with his own woung
talking only about how much he loved his wife and how he could not believe what he has done. At trail
defendant psychologist claimed that he was out of touch with his own capacity o experience anger and
express hostility. Steven had basically reached the limit of his ability to swallow andger and to rationalize
his wifes behavior and was unable to remain passive. What ensued was a great deal of rage intermingled
with panic.
Procedure: he was convicted at trial court of second degree murder and was sentence to 22 years
incarceration (10 of which were suspended)
Issue: Whether words alone are provocation adequate to justify a conviction of manslaughter rather than
one of second degree murder
Held No conviction upheld words alone are not adequate provocation
Analysis: Defendant argues that provocation to mitigate murder to manslaughter should not be limited to
traditional circumstances of : extreme assault or battery upon defendant, mutual combat, defendants illegal
arrest, injury or serious abuse of close relative of defendant, or sudden discovery of spousal adultery.
He argues that manslaughter does not encompass malice- which applies too him. He contends that the trail
judge did find provocation and that the categories of provocation should broaden to include circumstances
such as this one
The state contends that words are not sufficient provocation and if that were the case every domestic
argument leading to death would be manslaughter. Common law developed to a point at which it may be
said that there are some concededly provocative acts that society is not able to recognize as reasonable.-
words fall into this category
Voluntary manslaughter is defined as the intentional homicide done in a sudden heat of passion, caused by
adequate provocation, before there has been a reasonable opportunity for passion to cool
The court uses the rules of provocation tests - to decide whether murder should be mitigated to
manslaughter in this case
1) there must have been adequate provocation
2) the killing must have been in the heat of passion
3) it must have been a sudden heat of passion-that is, the killing must have
followed the provocation before there had been a reasonable opportunity for the
passion to cool
4) There must have been a causal connection between the provocation, the passion
and the fatal act
Court focuses on 1) bc 2 3 4 can said to have been met in this case.
For provocation to be adequate it must be calculated to inflame the passion of a reasonable man and
tend to cause him to act for the moment from passion rather than reason. The issue that must be
resolved is whether the taiting words uttered by Joyce were enough to inflame the passion of a reasonable
man so that man would be sufficiently infuriated as to strike out in hot blooded blind passion to kill her.

Maryland cases hold that words alone are not adequate provocation, and are only adequate if that are
accompanied by conduct indicating a present intention and ability to cause defendant bodily harm.
Joyce simply did not have the strength to cause steven fear for his bodily safety, and her words alone can
not be adequate provocation to cause a reasonable man to stab her 19 times
The standard is one of reasonableness, it odes not focus on the peculiar frailties of the mind of the
petitioner (defendant) - there must not simply be provocation in psychological fact, but one of certain
fairly well defined classes of provocation recognized as being adequate as matter of law.

Notes: adequate provocation “general rule is that reason should at the time of the act be disturbed or
obscured by passion to an extent which might render ordinary men of fair average disposition liable to act
rashly or without due deliberation or reflection from passion rather than judgment.”

Shift has now been that juries decide what constitutes adequate provocation, and whether there was
reasonable cooling off time before the defendant kills the victim (which would negate the provocation
defense)

Note 3 – originally under common law the judge made a determination if you fit into one of these
categories before you got the instruction for manslaughter and if you fit in the category then the judge
would instruct the jury “if you find defendant acted as a reasonable person would being provoked like he
was then he could be reduced to manslaughter”  trend has been more to let jury decide whether fit in the
category, if you raise it the judge will give the instruction

Note 4 – “cooling off time” – traditionally defendant could not produce evidence of event happening a
significant time before  changed over time because it can build up over time

Is this an excuse or justification (provocation)  it has elements of both and people debate this
Justification because of the adultery thing and it has to be your wife because there is this notion
that she is your property and killing her is justifiable
More an excuse but has both elements
A justification is a situation where “I had an entitlement to act as I acted” and implies this notion
of entitlement (ie self defense), focus on the act
An excuse is where we understand what the person has done and we do not think it is right, there
is no notion of entitlement (he admits to wrongdoing) but in some ways people lose control and these are
situation in which anybody could freak out, and he is not morally blameworthy for the harm, focus on the
actor (ie – come home and mother is beaten severely and you come home and find her and then you go and
blow this guys brains out  any person could get this angry upon seeing this sort of thing)
Partial Justification --- justification are situations where you are absolved from liability because did not do
anything wrong
Excuse – done something WRONG but we understand why – if I am under immediate threat (ie I am going
to kill your kid if you don’t rob the store) --- did something wrong by robbing the store but we understand
why you did what you did
Much dispute over this

Joshua Dressler – Rethinking heat of the passion: A defense in search of a rationale

Defendants of crimes of murder may raise a defense- 2 types excuse and justification

With justification society indicates its approval of the actors conduct- like with homicide- the existence of
justification (such as self defense) implies that under the circumstances society does not belive that the
death of a human being was undesirable, or at least it represents a lesser harm than if the defendant had not
acted as the dis

A defendant asserting an excuse admits a wrongdoing but asserts that he should not be punished because he
is not morally blameworthy for harm.

Thus whereas justification focus on the act, excuses focus on the actor…The insane killer for example
avoids punishment not because there was no harm in the killing, but because his mental disease renders his
conduct in some fashion morally blameless.

The provocation defense is both a subspecies of excuse and justification as courts differ on which doctrinal
path to follow or recognize both theories
The question being is the provoker partly responsible because he roused a violent impulse or passion in me
so that it wasn’t truly or merely me acting on my own accord (excuse)? Or is it rather that he having done
me such injury I was entitled to retaliate (justification)?

All common law forms of adequate provocation have one thing in common- they all involve unlawful
conduct by the provoker( justification). Lawful conduct no matter how provocative is never adequate
provocation*** It is the unlawfulness of the provocation which make the response less socially
undesirable.- justification
Sight of adultery adds to the justification thesis- as a married person who kills upon sight of adultery
commits manslaughter, but an unmarried individual who kills upon sight of unfaithfulness is a murderer.
Passion cannot explain this rule in terms of excusing conduct i.e. both married and unmarried person
may suffer same amount of anger- This rule is really explained by justification as adultery is the highest
invasion of husbands property, whereas unmarried defendant has no such control.
Another justification oriented rule is the misdirected retaliation doctrine wherein it is said that the defense
is only applicable when it is an act by the dead man not a third person which provokes the accused

So the heat of passion at least at times is viewed as a partial justification. However, there is also substantial
support for the assertion that the defense is based on a theory that the harm is the same as with murder, but
that the accused personal blameworthiness is less than that of murder. The language if not always the result,
in provocation cases is usually excuse oriented. The problem is that courts vary in their excuse reasoning.

Joshua Dressler – Why keep the Provocation Defense?: Some reflections on a difficult subject
The provocation defense is a partial excuse defense but need not have a justification-like component. An
intentional homicide is not mitigated to manslaughter unless certain conditions are met. There must be
some provactive even which results in the actor feeling rage or some similar overwought emotion.It is
enough for the basis of mitigation that we are prepared to excuse the actor for feelling as he does. The
provocation defense is based on laws understanding of human frailty; and therefore the ultimate question is
whether we (or the jury) consider the provoked party’s anger within the range of expected human
resposnses to the provocative situation. We must decide if the provocative event might cause an ordinary
person to become enraged or otherwise emotionally overcome.The provocation must be so serious that we
are prepared to say that an ordinary person in the actors circumstances might become sufficiently upset by
the provocation and suffer such an emotional outburst as to experience substantial impairment of his
capacity for self control, and as a consequence to act violently. Under no circumstances is provoked killing
justifiable indeed his loss of self control is unjustifiable, and not totally excusable because the law’s
assumption is that he was not wholly incapable of controlling or channeling his anger- If it was totally
incapable a full excuse would vbe defensible. Instead the defense is based on our common experience that
when we become exceptionally angry our ability to conform our conduct to the dictates of the law is
seriously undermined, hence making law abiding behavior far more difficult than in non provocative
circumstances, IT is THIS understandably greater difficult to control conduct that appropriately mitigated a
provoked actors blameworthiness, and therefore his responsibility for homicide.

Steven Garvey distinguishes between a person who acts in defiance of the law and one who less culpably
violates the law- the person who is entitled to have his offense reduced to manslaughter is one who,
although he has a capacity for self-control, tries to excersize it but ultimaley succumbs to passion. This
person is less culpable than one who does not make an attempt at self control.

b. The Objective Standard: Who is the “Reasonable Man”?

Introductory Comment
For intentional homicide to constitute manslaughter rather than murder, a defendant must have killed in
response to provocation “calculated to inflame the passion of a reasonable man or which might render
ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and
from passion rather than judgment.”

To what extent, if any, should the jury, in evaluating provocation, be instructed that the “reasonable man”
possesses the defendant’s own personal characteristics?

Causation is not culpability – they are 2 separate issues

Causation only comes up in result crime and homicide (not conduct crimes, it is an element but it is not an
issue) --- to say someone is a cause does not mean they have culpability for murder --- causation is part of
the actus reus (voluntary act that results in social harm), causation is the glue that combines actus reus
and the social harm
What is the responsibility for the first actor that comes in between? Should the first person be absolved of
responsibility or not, is the first person morally culpable that we feel we should impose criminal liability on
that person --- what was the forsseablity? Did the first person get what they wanted?

ATTORNEY GENERAL FOR JERSEY v. HOLLEY

Privy Council, 2005.
Facts: This appeal from Court of appeal of Jersey calls for the examination of the law relating to
provocation as a partial defense to a charge of murder. Holley D and Mullane lived together and were both
alcoholics. They had been drinking heavily. They went to a pub, after which Holley returned home and
kept drinking and chopped wood with an ax. Mullane stayed at the pub and later returned drunk and told
holley that she had just had sex with another man. He lifted the ax, she replied that he didn’t have the guts,
and he killed her by repeatedly striking her with the ax.
Procedure: The defendant was tried and convicted of murder, and he appealed, arguing that the jury was
improperly instructed on the issue of provocation. The reviewing court agreed and granted a new trial. The
only issue at new trial was that of provocation, and the defendant presented substantial evidence relating to
his alcoholism. The second jury returned a guilty verdict as well. The defendant appealed again, and the
appellate court again found that the jury had been misdirected on the issue of provocation, but given the 2
preceding trials, it declined to order another one and instead entered a conviction of manslaughter and
reduces sentence from life to 8 years in prision
Issue Should evidence of the defendants alcoholism or intoxication be taken into account when considering
whether a person having ordinary powers of self control would have done what the defendant did?
Held no
Analysis: The court of appeals was wrong in the fact that they regarded that being drunk does not give
reasonable grounds for provocation defense, but alcoholism as a disease must be taken into account when
deciding if the defendant was provoked.
the defense of provocation has 2 ingrediants 1) subjective/factual ingredient is that the defendant was
provoked to lose self control. This calls for the assessment of the gravity of provocation This takes into
consideration any mental or other abnormalities of the defendant that made it more likely that they would
lose control. With regard to this factor the defendants state of intoxication may be relevant
2) The objective /evaluative ingredient was the provocation enough to make a reasonable man do
as he did
The court finds that the statutory reasonable man has the power of self control to be expected of an ordinary
person of like sex and age. In other respects that is in respects other than self control, the reasonable man
shares such of the defendants characteristics as the jury think would affect the gravity of provocation of the
defendant.
Can be provoked by either words or actions or both in england

In the second ingredient the statutory standard is based on how a person of ordinary control would act
under the circumstances. And as such it is acceptable to take age and gender into account when determining
what is ordinary under the circumstances, but other factors such as intoxication do not enter into this part
of the analysis

Notes 1 – to what extent are defendants particular characteristics relevant?

3 steps:
1) whether person actually acted in heat of passion did person lose self control
2) whether or not provocation was such that it would cause a reasonable person to be provoked (should
they have been provoked)
3) whether reasonable person even if provoked would have controlled himself in that case (should they
have acted the way they did)
First one is a straight empirical question – did the person lose control, yes or no
Do you take into particular account peoples circumstances when deciding 2 and 3?
In a sense individual characteristics are being taken into consideration for both but in different
ways --- all of the defendants characteristics (peculiarities) are taken into account when we
decide whether a reasonable person would be PROVOKED but when we are trying to decide
whether a reasonable person would have acted this way (lost control in this way) would have
done this (different than if they would have been pissed off) then we say that the reasonable man
would have the power of self control to be an ordinary person of like sex and age  it is a little
subjective but we import all these gender stereotypes --- not as subjective as if there was
provocation in the first place
Note 3 – Is it fair to hold someone to a standard that he is unable to meet? --- may hold people to
standards that they can not meet

c. Model Penal Code and Beyond

PEOPLE v. CASASSA
Court of Appeals of New York, 1980.
Facts: Cassasa met Victoria Lo Consolo in his aptmnt building. They dated casually after which Lo
consolo informed him that she was not falling in love with him. This rejection devastated him. And he
started doing some odd things- he broke into the aptmnt below lo consolo to eavesdrop on her while
she persued other relationships. He broke into her aptmnt while naked lying on her bed, having a knife.
He knew that he was either gonna kill himself or her. Furthermore after bringing her some alcohol;l
which she rejected he pulled out a steak knife and stabbed her in the throat, after which he pulled her
body into a bathtub and submerged her into water to make sure she was dead.
Cassasa does not dispute these facts. He waived a jury trial and had a bench trial before a judge. He
presented only 1 witness a psychiatrist who testified that Cassasa was obsessed with Lo Consolo and
that her rejection combined with his peculiar personality attributes placed him under the influence of
extreme emotional disturbance at the time of the killing
The state presented witnesses amoung which was a psychiatrist- who testified that while casassa was
emotionally disturbed, this should not qualify as extreme emotional disturbance bc the disturbance was
due to his own mind not external factors
Procedural History: The trial court found him guilty of murder in second degree. Cassasa appeals
arguing that the statute requires the court to examine the case from his point of view and that from his
point of view he was suffering froem extreme emotional disturbance casued by a reasonable
explanation
Issue: Is the test of whether an extreme emotional disturbance of the killer was caused by a reasonable
explanation or excuse determined by the subjective point of view of the killer
Held: No
Analysis: Court uses 125.5 of NY penal code which proides that if a killer can show that he acted
under the influence of extreme emotional disturbance for which there was reasonable explanation or
excuse he qualifies for an affirmative defense to reduce murder to manslaughter.
This section of NY penal code was adopted from the Model Penal Code- in which in the model penal
code the extreme emotional disturbance defense is an out growth of the heat of passion defense found
in common law, but is much broader.
5) The provision that there is no cooling off period between the provocation and
the actions resulting in death in the heat of passion defense is eliminated from
the extreme emotional disturbance defense
6) It also eliminates rules regarding what is and what is not adequate provocation,
several different incidents can come together to form a reasonable explanation
of the killers extreme emotional disturbance. And the arguments presented by
the defendants can be considered on their own merits.
The court applies a test which has 2 components 1) the act must have been done in a state of extreme
emotional disturbance which is considered subjectively from the killer’s point of view. 2) Whether there
was a reasonable explanation or excuse for that emotional disturbance –objective. This takes the point of
view of a person facing the same circumstances the killer believed he was facing but without any particular
quirks the killer might have had.
In this case the judge agrees that he was acting out of extreme emotional disturbance, however defendant
doesn’t meet the second criteria as his disturbance was based on factor peculiar to Cassasa. And because
these factors were peculiar to him there was no reasonable explanation or excuse.

How does MPC deal with this?

210.3 – subjective standard - it is very broad but it is not completely subjective
Different than what read in common law --- how does it differ from common law? --- there is no
requirement for immediacy, at common law had to be reactive, in a heat of passion, but this is gone in the
MPC
MPC was designed explicitly to allow the jury to have very very broad ability to look at a situation where
there was any sort of agitation  broad departure from common law  there are no categories here
This is really different than what just learned from the common law – the doctrine of adequate provocation
is narrow in the common law
First thing is subjective issue – was thing actually committed under emotional distress
Objective – reasonable explanation or excuse
Subjective – from a person in actor’s situation  situation is ambiguous…. under circumstances he
believes them to be, this clarifies the role of mistake - meant to address the issue of mistake
Look at page 285 Note 2

3. Murder Versus Manslaughter: A Literary Problem

Willa Cather – O Pioneers

C. Unintentional Killings: Unjustified Risk-taking

Common Law Approach to risk-taking:
Pagatto v. State: At the bottom end of the culpability scale is mere civil liability for a wrongful
death, where there may be uncontestable fault and perhaps heavy civil liability but still something
less than criminality. Higher up the ascending scale of blameworthy negligence re those more
“gross deviations” from the standard of car used by an ordinary person where the negligent
conduct can reasonably be said to manifest “a wanton or reckless disregard of human life.” That
level of fault constitutes involuntary manslaughter of the gross negligence variety. Yet higher still
on the culpability ladder are those acts of life-endangering nature so reckless that they manifest a
wanton indifference to human life. That level of blameworthiness constitutes murder of the
depraved-heart variety. Our cases have not drawn a precise line between depraved heart murder
and involuntary manslaughter. As an abstract matter, however, we know that there is somewhere
such a line. There must be or else there is no legally cognizable distinction between murder and
manslaughter.
At common law the mental state for murder required was malice (4 ways) – it was either
intentional, or intentional with substantial harm, or in connection with a felony, or depraved heart
murder
Manslaughter – voluntary is intentional but is diff from murder because it is done with advocate
provocation (heat of passion), involuntary manslaughter requires greater than ordinary
negligence
At common law one of the conditions of committing murder was engaging in depraved heart
murder which is basically reckless – the problem is with involuntary manslaughter you needed
more than ordinary negligence and lots of cases said what you really needed was negligence -
recklessness is used when talk about depraved heart murder and when talk about involuntary
manslaughter --- in a general matter ordinary negligence is not enough at common law for
involuntary manslaughter, you need something more like gross negligence but you start getting
close to recklessness
Intentional killing – depraved heart murder, involuntary manslaughter
Is there depraved heart murder in the MPC?
210.1(b) – committed recklessly but under circumstances of extreme indifference to
human life – equivalent to depraved heart murder
Is there manslaughter in the MPC? (how does MPC tries to help confusion)
Criminally negligent homicide (210.4) – 2.02 negligence – a gross deviation, no
homicide for ordinary negligence it has to be gross negligence – at common law
negligent homicide at common law would have been involuntary manslaughter --- the
difference between the common law and the code is that the code very deliberately takes
the position that you cannot have liability for manslaughter without a conscious
disregard, inv manslaughter at common law which is now criminally negligent homicide
would have been manslaughter, what is manslaughter here would have been much closer
to depraved heart murder --- they wanted to make sure there was no liability for
manslaughter, we only punish people for involuntary manslaughter when they really
acted recklessly and they consciously disregarded a risk (not a risk that they SHOULD
have been aware of)  only under those circumstances are we going to impose liability
for homicide which is the most serious liability you can impose on someone under
criminal law
The code tries to say the difference between murder and manslaughter is more than a matter of
degree --- try to erect a qualitative cognitive distinction – murder and manslaughter require a
 conscious disregard – criminally negligent homicide does not, the fact that you were not aware of
it is a gross deviation from what a reasonable person would do
Should we under any circumstances should we impose liability for negligently homicide? --- you
can’t deter anything here because you were never aware of it

BERRY v. SUPERIOR COURT

California Court of Appeal, Sixth District, 1989.
Facts: Berry (defendant) pit bull attacked and killed a two-year old child
Procedural History: Defendant seeks pre-trial dismissal of the charge of murder. He claims the evidence
taken at the preliminary hearing falls legally short of establishing implied malice sufficient to prosecute
him for murder.
Issue: Could the keeping of a dangerous animal, accessible to the public, support a belief of implied
malice?
Rule: “The test of implied malice…is actual appreciation of a high degree of risk that
is objectively present.” In California, the defendant must be shown to have had a
knowledge of the “high degree of risk”, or in other words, they must be shown to be
reckless, in order to be charged with murder as opposed to manslaughter.
Analysis: Some conduct can be seen to be so reckless or dangerous as to supply the mens rea element of
malice
The court cites several facts which taken together it suggests are sufficient to show
recklessness:
1. The defendant kept a fighting dog and told others it was dangerous.
2. The defendant lived near kids.
3. The defendant kept the dog chained to a fence.
Antisocial motive is guarding the pot plant, he had the dog chained up near where
the dog can get at kids and he is doing this to protect his pot plants – the dog is
there to attack anyone who gets near the pot plants and you have this
nondiscriminating deadly force who is going to attack anyone who gets near those
plants  a good reason is not growing good plants for having a deadly force on your
property --- its only an unjustifiable risk if there is a reason why

PEOPLE v. NIETO BENITEZ

Supreme Court of California, 1992.
Facts: The court determines that using the description “an abandoned or malignant heart” in its instructions
to the jury on implied malice is confusing
Black Letter Rule: A person commits second-degree murder with implied malice when the person
performs an act, the natural consequences of which are dangerous to life, and the person deliberately
performed the act with conscious disregard for life and with awareness that his or her conduct endangered
the life of another.
Issue: Should the term “abandoned and malignant heart” continue to be used to instruct a jury on the
determination of implied malice in a trial for second-degree murder?
Analysis: Initially a jury instruction relied on the statutory definition of implied malice, permitting the jury
to find malice if the killing were done with an abandoned and malignant heart. Too cryptic.
The term invites confusion and might lead a jury to equate the malignant heart with an evil disposition, thus
leading a jury to convict a defendant if they find him to be a bad man.
People v. Watson
Instead, a jury should be instructed that second-degree murder with implied malice has been committed
when a person does an act, the natural consequences of which are dangerous to life, and the act was
deliberately performed by a person who was aware that his or her conduct endangers the life of another and
who acts with conscious disregarded for life. In other words, malice may be implied when a defendant
takes an action in spite of the high probability that death will result, acting with a base antisocial motive
and with a wanton disregard for human life.

MPC uses “recklessness”  “Indifference to human value” “It must be left directly to the trier of fact
under instructions which make it clear that recklessness that can fairly be assimilated to purpose or
knowledge should be treated as murder and that less extreme recklessness should be punished by
manslaughter

Note 4 –
At common law, a person acts with malice aforethought – and therefore, is guilty of murder – if , with the
intent to cause grievous bodily injury, she accidentally kills another
MPC – 210.2 – The deletion of the intent to injure as an independently sufficient culpability for murder
rests on the judgment that it is preferable to handle such cases under the standards of extreme recklessness
and recklessness contained in Section 210.2(1)(B) and 210.3(1)(a). Most traditional illustrations of murder
bases on intent to injure will fall within the recklessness category as defined in the MPC.
The actor intended to cause injury of a particular nature or gravity is, of course, a relevant consideration in
determining whether he acted with “extreme indifference to the value of human life” under Section
210.2(1)(b) or “recklessly” with respect to death of another under Section 210.3(1).

STATE v. HERNANDEZ
Missouri Court of Appeals, 1991.
Facts: Hernandez (D), while drunk, drove his van into a truck killing one person and injuring two others.
At trial the drinking slogans that Hernandez used to decorate his van were admitted into evidence over
defense objection.
Procedural History: Trial court found Hernandez guilty of involuntary manslaughter
Issue: Should evidence which is offered to show that the defendant was aware of the risks of his behavior
but which is also prejudicial to his character be admissible when the charge is involuntary manslaughter?
Black Letter Rule: Evidence to show that the accused was aware of the risks of his behavior is not
admissible to show mental state when the charge is involuntary manslaughter
Holding: Conviction of manslaughter overturned.
Analysis: For evidence to be admissible it must be more relevant than prejudicial. To be relevant it must
tend to support or establish a fact or issue between the parties. To prove involuntary manslaughter the
prosecutor has to prove 1) that Hernandez acted with criminal negligence and 2) that Cecil Barrymore died
as a result of that negligence.
Criminal negligence is the least culpable of the mental states that are an element in the commission of a
crime. It does not require that Hernandez be aware of the risk he was creating towards others, but only that
he did create such a risk and was criminally negligent in doing so. As a result evidence of the risk is not
relevant and the prosecution cant put the drinking slogans into evidence. In addition, to admit this evidence
to show that the defendant approved of excessive drinking would be to admit character evidence. As
Hernandez did not place his character into issue in this case, character evidence from the prosecution is not
admissible.
Dissent: It is necessary to prove that the negligence shown by Hernandez in this case rises to a criminal
level. In order to do so it is necessary to prove that his conduct was a gross deviation from the standard of
care that a reasonable person would show.
To find Hernandez guilty the jury must find 1) that Hernandez created a substantial and unjustifiable risk to
the lives of others by driving while intoxicated, 2) that even if he was not aware that be driving while he
was intoxicated created this risk he should have been, and 3) that by creating this risk he killed Barrymore.
Some of the stickers were relevant to show the second of those elements. He should have known that these
affects of alcohol would prevent him from being able to drive responsibly and that this might place the
lives of others in risk. Thus while he agrees that this evidence could not be admitted, under this charge, to
show that Hernandez was aware of the risk he posed to others, it should be admissible to show that
Hernandez’s negligent failure to be aware of that risk was criminal.
Jury asked to perform 2 distinct functions
1) Examine the risk and the factors that are relevant to its substantiality and justifiability
2) Jury is to make culpability judgment, this time in terms of whether the failure of the defendant to
perceive the risk justifies condemnation (subjective)
In Missouri you can commit manslaughter if you engage in criminal negligence because that is defined by
the code
Reversing conviction because basically this guy was found guilty
How would it have been decided under the MPC with the law of Missouri?
Pg 981
 It would come out differently because what they did is that he showed reckless behavior
(conscious disregard) and they would have satisfied negligence under the MPC
Prosecutor would have been better off charging him with murder

Basic issue raised is difference between an unintended murder in the second degree and involuntary
manslaughter. The practical difference comes down to proving whether or not the accused was actually
aware that his conduct was creating an unacceptable risk of death.

STATE v. WILLIAMS
Court of Appeals of Washington, 1971.
Facts: The Williams (D), parents of a 17-month old child with an abscessed tooth, did not supply necessary
medical care, and the child died as a result.
Procedural History: Conviction of manslaughter due to ordinary negligence.
Issue: May simple negligence support a conviction of manslaughter?
Black Letter Rule: A showing of ordinary negligence may be sufficient to support a conviction for
manslaughter.
Holding: Affirmed.
Analysis:
Common law requires that a breach of this duty had to amount to more than mere ordinary or simple
negligence – a showing of gross negligence was required.
In Washington, statutes defining manslaughter require only a showing of simple or ordinary negligence.
The concept of ordinary negligence requires a failure to exercise the “ordinary caution” necessary to make
out the defense of excusable homicide. Ordinary caution is the kind of caution that a man of reasonable
prudence would exercise under the same or similar conditions.
If such negligence PROXIMATELY causes the death of the victim, the defendant is guilty of
manslaughter.
Timeliness in the furnishing of medical care must be considered in terms of ordinary caution.
Testimony from defendants indicates they noticed the child was ill 10 to 14 days before the child died.

Note 4 – Criminal v. civil negligence – Criminal negligence requires the jury to find negligence so gross as
to merit not just damages but also punishment

Note 5 – Should person be punished for negligently causing harm to others, even if that negligence is
substantial?
MPC – wrestled with this question - “It has been urged that inadvertent negligence is not a sufficient basis
for criminal conviction, both on the utilitarian ground that threatening sanctions cannot influence the
inadvertent actors and on the moral ground that criminal punishment should be reserved for cases involving
conscious fault.
Drafters of MPC did not think so – “When people have knowledge that conviction and sentence, not to
speak of punishment, may follow conduct that inadvertently creates improper risk, they are supplied with
an additional motive to take care before acting, to use their faculties and draw on their experience in
gauging the potentialities of completed conduct. To some extent, at least, this motive may promote the
awareness and thus be effective as a measure of control.
Retributive – “just desert grounds”

Problem: Note 9
A. Common law Involuntary manslaughter – he did not want to kill the kids and there is nothing to indicate
that he acted with a conscious disregard OR under the MPC negligent homicide
B. Common law involuntary manslaughter and under MPC negligent homicide
C. The issue is whether or not it is reckless --- are you consciously disregarding the fact that people are
going to be injured?

At common law ordinary negligence not satisfy involuntary manslaughter

D. Unintentional Killings: Unlawful Conduct

1. The Felony-Murder Rule
 a. The Doctrine in its Unlimited Form
It permits severe punishment for the most heinous of offenses in some cases that can appropriately be
described as accidents.
A felony + a killing = a murder
American Law Institute, Model Penal Code and Commentaries, Comment to 210.2
The Rule operated to impose liability for murder based on the culpability required for the underlying felony
without separate proof of any culpability with regard to the death. The homicide was thus an offense of
strict liability.
The primary use of the felony-murder rule at common law (where all felonies were punishable by death)
was to deal with a homicide that occurred in furtherance of an attempted felony that failed.
In modern times, however, the legislatures have created a wide range of statutory felonies that are not
treated as capital offenses.
Had led for a demand for limitations of the felony-murder rule

At common law the mens rea required for murder is malice aforethought (intentional conduct, depraved
heart, serious bodily harm, and felony-murder)
Note 5 on pg .327 – trier of fact may infer malice aforethought but if you are in a felony you are
said to have malice aforethought but the cognitive state is difference if you intend to kill someone
and in the course of a felony you kill someone
Originally felony-murder originally applied to any felony but when it developed you basically got
death penalty for any felony
Felony-murder is a form of strict liability
Comes from notion of culpability theory of mens rea – you are engaged in this bad activity and
you are culpable for it

PEOPLE v. FULLER
California Court of Appeal, Fifth District, 1978.
Facts: Two guys who were attempting to escape a police officer who had observed them stealing tires got
into a high speed chase which resulted in an accident that killed the driver of another care.
Procedural History: Trial court struck the murder count premised upon the felony-murder rule.
Issue: Can an accidental death caused by a high-speed chase during the commission of a burglary be
charged as murder in the first degree under the felony-murder rule?
Black Letter Rule: The felony-murder rule imposes strict liability for deaths caused by the commission of
one of the enumerated felonies, which include burglary, even when the death is accidental.
Holding: Trail court erred. They can be charged with murder.
Analysis:
The court is bound by precedent to find that the felony-murder rule applies in this case. California law
specifically enumerates burglary as one of the felonies that makes a death caused during the commission or
attempted commission of the enumerated felonies chargeable as murder in the first degree. The felony-
murder rule imposes strict liability for this death and it does not matter that it was accidental.
Do not believe this is the appropriate outcome, ad if the court was not bound by precedent the court would
hold that the tire thieves should not be prosecuted for felony murder because the crime which they intended
to commit, car burglary, does not usually pose a danger to human life.
The rule is supposed to deter those engaged in felonies from killing negligently or accidentally.

b. The Policy Debate

NelsonE. Roth & Scott E. Sundby – The Felony-Murder Rule: A Doctrine At Constitutional
Crossroads: “the most serious sanctions known to law might be imposed for accidental homicide”
The Conceptual Basis of the Felony-Murder Rule:
A. The Rule’s Historical Development: The purpose of the law at common law is vague.
Contemporary Rationale:
B. Deterrence
A. First approach views the rule as a doctrine intended to deter negligent and accidental
killings during commission of felonies. Co-felons will dissuade each other from the use
of violence if they may be liable for murder.
B. Second approach focuses not on the killing, but on the felony itself, and endorses the rule
 as a deterrent to dangerous felonies
C. Criticism and Illogic
1) How does one deter an unintended act? –
2) Any potential deterrence effect on unintentional killings is further reduced
because few felons either will know that the felony-murder rule imposes strict
liability for resulting deaths or will believe that harm will result from the
commission of a felony
3) Statistical evidence has not borne out Holme’s proposed justification that a
disproportionate number of killings occur during felonies.
C. Transferred Intent and Constructive Malice: The Rule’s Presumption of Culpability
A. The intent to commit the felony is transferred to the act of killing in order to find
culpability for the homicide. It relieves the state of the burden of proving premeditation
or malice.
B. Criticism
1) An anachronistic remnant that operates fictitiously to broaden unacceptably the
scope of murder
2) Crimes have 2 different mens rea: the intent to commit the felony and the
culpability for the killing
D. Retribution and General Culpability: A Strict Liability View of the Rule
A. Not requiring a separate mens rea element for the homicide, but as justifying conviction
for murder simply on the basis that the defendant committed a felony and a killing
occurred
1) Justifications: 1) deterrence of the underlying felony 2) Felon has exhibited an
evil mind justifying severe punishment
B. Conceived from an evil mind perspective comported with the retribution theory of
punishment prevailing at the time of the rule’s development, which focused on the
resulting harm, not on the actor’s mental state.
C. Criticism
1) Evil mind theory conflicts with the basic premise that the criminal law is
concerned not only with guilt or innocence in the abstract but also with the
degree of criminal liability
2) Eliminates a mens rea element in convicting a felon for a killing occurring
during the commission of a felony, and results in the rule operating as a strict
liability crime: the occurrence of a killing is punished as murder regardless of
the defendant’s culpability
David Crump & Susan Waite Crump – In Defense of the Felony Murder Doctrine
1. The Policies Supporting the Felony Murder Rule
A. Rational Classification and Proportional Grading Offenses: Actus Reus as an Element of Just
Desert – Felony murder reflects a societal judgment that an intentionally committed robbery that
causes the death of a human being is qualitatively more serious than an identical robbery that does
not. Reflects the conclusion that a robbery that causes death is more closely akin to murder than
to a robbery
B. Condemnation: Reaffirming the Sanctity of Human Life
Condemnation – “embodies the notion of reinforcement of societal norms and values as a
guide to the conduct of upright persons, as opposed to less upright ones who presumably
require the separate prod of “deterrence” – rule serves this purpose by distinguishing
crimes that cause human death, thus reinforcing the reverence for human life
Expression – if we as a society label a violent offense in a manner that depreciates its
significance, we communicate to the victim by implication that we do not understand his
suffering
Expiation – “repay his debt to society”
C. Deterrence
Felons evaluate risks and benefits differently than members of other classes in society –
there is mounting evidence that serious crime is subject to deterrence if consequences are
adequately communicated
In defense of ignorance criticism – general population, including felons is probably more
 aware of the outlines of the felony murder doctrine than of many other, more common
criminal concepts
In defense that only addresses accidental killings – felony murder may deter intentional
killings as well. The proposition that accidental killings cannot be deterred is
inconsistent with the widespread belief that the penalizing of negligence, and even the
imposition of strict liability, may have deterrent consequences.
D. Clear and Unambiguous Definition of Offenses and Sentence Consequences – greater clarity
E. Optimal Allocation of Criminal Justice Resources
The rule has been beneficial allocative consequences because it clearly defines the
offense, simplifies the task of the judge and jury with respect to questions of law and fact,
and thereby promotes efficient administration of justice
F. Minimization of the Utility of Perjury
“It is rare that a criminal telephones or telegraphs his criminal intent”
Scholars criticizing argue or assume that juries will disbelieve false claims of accident.
The criticism assumes too much: The accident claim need only rise to the level of
reasonable doubt to be effective under conventional homicide law.
The incentive to perjury is itself a liability

c. Limitations on the Rule

i. Overview
James J. Tomkovicz – The Endurance of the felony-murder rule: A study of the forces that shape our
criminal law: An unlimited felony-murder rule is NOT the law of our land. In most places, the rules is
cabined in a number of ways.
ii. The “Inherently Dangerous Felony” Limitation
PEOPLE v. HOWARD
Supreme Court of California, 2005.
Facts: Howard (D) was convicted of second-degree felony murder after killing the occupant of another
vehicle while attempting to flee from police in a stolen vehicle, and he appealed his conviction.
Procedural History: Trial court convicted second-degree felony murder and appellate court affirmed.
Issue: Is driving with a willful or wanton disregard for the safety of the persons or property while fleeing
from a pursuing police office an inherently dangerous felony for purposes of the second-degree felony
murder rule?
Black Letter Rule: The second-degree felony-murder rule provides that, although malice is ordinarily an
elements of a murder conviction, murder can be committed without malice if the killing occurs during the
commission of an inherently dangerous felony.
Holding: Reversed.
Analysis:
Because the second degree felony-murder rule is a court made rule, it has no statutory definition.
In determining whether an underlying felony is inherently for purposes of the felony-murder rule, the court
looks to the elements of the crime in the abstract, and not to the particular facts of the case (ie not to the
defendant’s specific conduct). The court looks at whether the felony, by its very nature, cannot be
committed without creating substantial risk that someone will be killed.
In determining that the underlying offense in this case was an inherently dangerous felony, the court of
appeal relied on a case that was decided before the statute was amended in 1996. They relied on People v.
Johnson Now, because of section (b) various offenses are given points under the current statutory scheme,
which points are then tallied to support a conviction. Subdivision b greatly expanded the meaning of the
quoted statutory phrase to include conduct that ordinarily would not be considered particularly dangerous.
A violation of section 2800.2 is not, in the abstract, inherently dangerous to human life. Therefore, the
second degree felony-murder rule does not apply when a killing occurs during a violation of section
2800.2.
Concurrence and Dissent: Agrees that the defendant’s conviction should be reversed here, he would
completely abrogate the second-degree felony-murder rule because its application is irredeemably arbitrary.
Second-degree felony murder is a judge-defined crime, and he would leave it to the legislature to define
precisely what conduct subjects a defendant to criminal liability. He does agree with the dissenting judge
that if any offense should easily qualify as inherently dangerous, Vehicle Code section 2800.2 certainly
would.
Dissent: The majority reasons that because some of the offenses for which a defendant gets individual
points under the subject statute here are not themselves inherently dangerous, one can commit the unitary
felony in a way that does not place human life at risk. But driving with reckless indifference to safety in
order to elude the police is by its very nature inherently dangerous. It creates a substantial risk that
someone will be killed. The requirements of the second-degree felony-murder rule are thus satisfied here,
and it makes no sense to refuse to apply that rule simply because some underlying violations of the same
statute may not be inherently dangerous.
The purpose of the felony-murder doctrine “is to deter those engaged in felonies from killing negligently or
accidentally.”

Unlike California, some states consider a felony inherently dangerous if it is dangerous in the abstract OR
in view of the manner in which the crime was committed on the present occasion.

Depraved Heart murder v. felony murder – under depraved heart the trier of fact may infer the defendant
killed with malice aforethought, whereas under the felony-murder theory, if the inherently dangerous act is
a felony, the defendant is deemed to have killed with malice aforethought as a matter of law

Seeks to limit doctrine to those situations to certain sorts of felonies – those that are dangerous
Second degree felony-murder – judicially created crime
Issue – whether it is abstract or applied
Some states look at the felony in the abstract (look to see whether it is the sort of thing which
inherently present a very high risk harm to human life) – does it deal with behavior that cannot be
undertaken without presenting a risk to people
Look to see what the person did in particular circumstances
Court says this is behavior which could be engaged in that does not inherently involve danger to human
life
False imprisonment can be done in the abstract without being dangerous

People v. Burroughs – not inherently dangerous – in Burroughs a serious bodily injury included a bone
fracture and if you look in abstract you could commit the crime by fracturing a bone which is not
inherently dangerous
Abstract approach indicates that we do not like the felony-murder rule

iii. The “Independent Felony” (or Merger) Limitation

PEOPLE v. ROBERTSON
Supreme Court of California, 2004.
Facts: Robertson (D) fired shots at two men who were burglarizing his vehicle, purportedly trying to scare
them but fatally wounding one of them.
Procedural History: Convicted of felony-murder
Issue: Did the merger doctrine preclude the trial courts instructing the jury that the defendant could be
convicted of second-degree felony murder based on the predicate offense of discharging a firearm in a
grossly negligent matter?
Black Letter Rule: A felony-murder instruction is not proper when the predicate felony is an integral part
of the homicide, and when, under the prosecution’s evidence, it is included in fact within the offense
charged.
Holding: Affirmed.
Analysis:
People v. Ireland – created so that not every felonious assault could be characterized as felony murder.
Such a result would usurp the law of homicide and relieve prosecutors of the burden of providing malice in
order to obtain a murder conviction, thereby frustrating the legislative intent to punish intentionally fatal
assaults more severely than felonious assaults that happen to result in death. The merger doctrine has not
been applied outside the assault context.
People v. Mattison – merger doctrine does not apply when the death results from a felony with an
independent purpose.
This independent-purpose distinction is consistent with the felony-murder rule’s goal of deterrence, since
someone who is about to assault another would not likely be deterred by the felony-murder rule, but a
defendant with some collateral purpose may be.
Here, the defendant’s stated purpose was to frighten away the men who were burglarizing his car, which by
his own admission, is a purpose collateral to the resulting homicide. Thus, the crimes did not merge and
the felony-murder instruction was permissible. The purpose of deterrence is served by the application of
the felony-murder rule in this case, because the rule is intended to deter not only the commission of
inherently dangerous crimes, but also carelessness in the commission of a crime. The merger doctrine does
not prelude the application of the felony-murder rule in this case.
Dissent: Under the majority’s reasoning, the defendant would have been better off here if he had testified
that he tried to hit the victims when he fired his gun, since that goal would not be a purpose collateral to the
resulting homicide and the felony-murder rule would not apply. The defendant’s less culpable state in this
case subjected him to greater criminal liability, which is contrary to basic criminal justice concepts.
The underlying crime in this case involves gross negligence, but under the felony-murder rule, the
prosecution must show that the defendant specifically intended to commit the underlying offense. Gross
negligence simply does not require specific intent. In other words, the intent to scare a person by firing a
gun at them is not independent of the resulting shooting death, nor is it felonious.

Merger – felony-murder applies only if the felony is independent of or collateral to the homicide

Wife engaged in voluntary manslaughter and the problem is if you imply felony murder in that situation
you have obliterated the distinction between murder and manslaughter
Intentional – I get angry with you and advocate provocation I shoot you, voluntary manslaughter
Can not use felony of manslaughter as predicate for murder

Instead of trying to use voluntary manslaughter as predicate, we try to use assault with a deadly weapon
Predicate felony is assault with a deadly weapon and someone was killed and therefore felony-
murder – most jurisdictions say that you can not use any felonious assault as predicate felony for
felony-murder

Where it gets difficult – nonfelonious assault crimes that involve assault behavior
Kidnapping – has an independent collateral purpose, it is not like assault with a deadly weapon
Most jurisdictions say that in those situations if there is a collateral criminal intent then you can
use felony-murder (ie engage in a burglary with an intent to assault you)
If robbing a store and engage in some assault like behavior, still have independent task to steal
money
Confusion is when there are crimes that involve assault as a contingent opponent

Robertson – trying to articulate an independent felonious doctrine but in reality applies it wrongly in this
case – in order for felony murder to apply it has to be the case that there is an independent felonious
purpose
iv. Killings “in the Perpetration” or “in the Furtherance” of a
felony
STATE v. SOPHOPHONE
Supreme Court of Kansas, 2001.
Facts: The defendant was charged with felony murder after one of the defendant’s co-burglars was shot
and killed by a police officer while fleeing from the scene of the burglary.
Procedural History: Defendant convicted for felony-murder.
Issue: Under the felony murder doctrine, is a defendant responsible for the death of a co-felon that occurs
during the course of the felony, when a non-felon lawfully carried out the killing?
Black Letter Rule: A defendant should not be held responsible under the felony-murder doctrine for the
death of a co-felon when the killing was the lawful act of a law enforcement officer acting in the line of
duty.
Holding: Reversed.
Analysis: The Kansas felony-murder statute states that murder in the first degree occurs when a killing is
committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony.”
Defendant’s co-felon, Sysoumphone, was killed during the flight from an aggravated burglary. Aggravated
burglary is an inherently dangerous felony. Sophophone assets that the fact that he was in custody at the
time of the killing served as a “break I circumstances” that should insulate him from the reach of the
felony-murder statute. He also argues that because the killing was the lawful act of a police officer, done in
the line of duty, he should not be held responsible. Court disagrees with his first argument. Time, distance,
and causal relationship between the underlying felony and a killing are factors to be considered in
determining whether the killing occurred in the commission of the underlying felony. The evidence of this
case indicates that the killing took place during the flight from the burglary, and it does not matter that he
was in custody.
agency approach – a co-felon cannot be convicted of a homicide carried out by a non-felon because the
actor responsible for the killing was not the person with whom she was an accomplice, and therefore, her
acts cannot be imputed to the co-felon.
Proximate cause approach – the mere coincidence of homicide and a felony is not enough to satisfy the
felony-murder doctrine. For liability to hold, the felon must have set in motion the acts that resulted in the
death of the co-felon at the hands of the non-felon.
Here, the court believes it is not the intent of the felony-murder statute to impute that act of killing to
Sophophone when the act was the lawful and courageous act of a police officer acting in the line of his
duties.
Dissent: Sophophone set in motion acts that would have resulted in the death of a law enforcement officer
had the alert officer not taken actions he did. Contrary to the majority’s opinion, the felony-murder statute
does not require us to adopt the agency theory. The statute does not even address the issue at all. The only
requirements, pursuant to the statute, are that: 1) there must be a killing, 2) the killing must occur in the
commission, attempt to commit, or flight from an inherently dangerous felony.
The circumstances in this case satisfy these requirements.

3rd rule) Note 1 on page 337 - Res Gestae – the felony murder rule applies when the murder occurs during
the commission of the felonyvv
Does not end when the crime is committed, if you are trying to escape the policy and you run somebody
over you satisfy res gestae – homicide occurs anytime after the attempt
Causal relationship between the felonious conduct and the death

Attempt and commission and fleeing there from – murder felony does apply

Sophophone – crime was still continuing but cop killed him

4th rule) What happens if you have a killing by a non-felon – part of the res gestae doctrine because there
are 2 ways of handling this
1) Agency Approach – majority approach – thinking is if a cop causes a co-felon this is not a
killing that is in furtherance of the felony and although we do not have a problem saying that felon
1 killing someone else we are going to attribute to felon 2 because they have an agency
relationship with each other, that killing was not in furtherance of conspiracy and there was no
agency and res gestae requires that it happens in furtherance of the felony
2) Proximate Cause Approach – was the killing reasonably foreseeable? Certainly there is but
for causation but is there proximate causation? The person to whom you want to attribute the
death his it something they could have foreseen? This is a more lenient approach.

2. Unlawful-Act manslaughter (the “misdemeanor manslaughter” rule)

An unintended homicide that occurs during the commission of an unlawful act not amounting to a felony
constitutes common law involuntary manslaughter
Comber v. US – Doctrine applies, involuntary manslaughter liability attaches even where the defendant
does not act with the degree of culpability ordinarily required for involuntary manslaughter predicated on
criminally negligent behavior.
Criticism is similar to that of the felony-murder rule: A person may be convicted of unlawful-act
manslaughter even though the person’s conduct does not create perceptible risk of death. The concept
violates the important principle that a person’s criminal liability for an act should be proportioned to his or
her moral culpability for that act.
Mills v. State – Because of the rule’s harshness, many courts limit the doctrine to deaths resulting from
either malum in se misdemeanor conduct
 3. A Brain Teaser to End All Brain Teasers

CHAPTER 8: RAPE
A. Overview
1. Rape (Sexual Assault Statistics)
There are greatest wrongful convictions in rape than in any other crime.
In acquantiance rape we don’t really know what happened so you get interesting puzzles

Blckstone said 240 years ago rape is the carnal knowledge of a woman forcibly against her will.

In National Crime Victimization survey rape is defined as forced sexual intercourse where the victim may
be either male or female and the offendor may be of the same or different sex.

Sexual Assault includes a wide range of victimizations involving attacks in which unwanted sexual contact
occurs between the victim and the offender. Threats and attempts to commit such ofesnses are included in
the counts

Only about 1/3 of rape/sexual assaults are reported to the police and only about ½ of those reported are
cleared by arrest

Few rapes result in arrest or conviction, studies also indicate that the same is true for most major felonies

Probability of indictment is higher in stranger rape cases than in acquaintance

The single most important reason why most rapists are not punished is failure of victims to report crimes to
the polic, or their later refusal to cooperate as a prosecution witness.

Prosecutors resist persuing acquaintance cases bc 1) prior relations increases the ambiguity of whether a
crime has occurred and 2) there is an increased risk that the victim will not cooperate

Rape has a history of sexism and racism- In rape the male standard defiens a crime commited against
women and male standards are used not only to judge men, but also to judge conduct of women victims
Black men who rape white woman receive harshest penalties
Rape treads on grounds of sex roles of male aggression and female passiveness

Many argue that rape is a crime of violence. And feminists argue that rape laws are meant to safegaird
sexual autonomy- the right to refuse to have sex with person at any time for any or no reason.—constrains
male sexual autonomy to the extent necessary to secure sexual autonomy of women

2. Social Context
Susan Estrich – Rape
Sexism
Rape has a history of sexism and racism- In rape the male standard defiens a crime commited
against women and male standards are used not only to judge men, but also to judge conduct of
women victims
Black men who rape white woman receive harshest penalties
Rape treads on grounds of sex roles of male aggression and female passiveness

Many argue that rape is a crime of violence. And feminists argue that rape laws are meant to
safegaird sexual autonomy- the right to refuse to have sex with person at any time for any or no
reason.—constrains male sexual autonomy to the extent necessary to secure sexual autonomy of
women

Joshua Dressler – Where we have been, and where we might be going: Some cautionary reflections
on rape law reform
 3. Variations on the Theme: Some Sexual Offense Statutes
Alabama Criminal Code
Definitions
Rape, First Degree – forcible compulsion, or incapable of consent because of physical helpless or mentally
incapacitated, or 16 to 12
Rape, second degree – incapable of consent because mentally defective

California Penal Code

Rape, Durress, Menace
Unlawful sexual intercourse with a minor
Consent, Effect of current or previous relationship
Consent, communication to use condom or other birth control device
Penetration
Inducing consent to sexual act by fraud or fear

Indiana Criminal Code

Rape
Sexual Battery

New Jersey Code of Criminal Justice

Definitions
Sexual Assault

Title 18, Pennsylvania Consolidated Statutes

Definitions
Prompt Complaint
Testimony of Complaints
Resistance not required
Rape – a) Offense Defined b) Additional Penalties c) Rape of a Child (13) d) Rape of a child with serious
bodily injury
Sexual Assault

B. Forcible Rape
1. Force and Nonconsent
STATE v. ALSTON
Supreme Court of North Carolina, 1984.
Instant Facts: An ex-boyfriend is convicted of the second degree rape of his ex-girlfriend, after having
intercourse with her at his friends house, despite not using force on the day of the alleged rape.
Procedural History: Conviction for second degree rape.
Issue: Must force or the threat of force occur at the time of the offense and be used to obtain sexual
intercourse?
Black Letter Rule: The element of force of threat of force must occur at the time of the alleged rape, and
must be used to obtain sexual intercourse
Held: argument has merit
Reasoning: 2nd degree rape involves vaginal intercourse with the victim both by force and against the
victims will. Consent by the victim is a complete defense but consent induced by fear of violence is void
and is no legal consent
Consent can be withdrawn at any time prior to penetration
Need to look into With prior continuing consentusla sexual relationships determeing the victims state of
mind at the time of the rape is difficult. In these cases the state needs to make inquiry into the victims state
of mind at time of rape, the state ordinarily will be able to show the victims lack of consent to the specific
act charged only by evidence of statements or actions by the victim which were clearly communicated to D
and which expressly and unequivocally indicated the withdrawl of prior consent to the particular act of
intercourse
Evidence 1) against victims will- she testified that she did not consent- and she submitted to
intercourse because she was afraid of him
-said relationship was at an end
- and prior to intercourse she said no that I wasn’t going to bed with him
- even without physical resistance this is substantial evidence to prove intercourse was
against her will
She said no so clearly against her will
2)- State did not show substantial evidence for the element of force- actual force need not
be show, but threats of serious bodily harm which would reasonably induce fear are sufficient
- although he said he was going to fix her face, and grabbed her arm, and induced fear-
this was unrelated to act of sexual intercourse
- more importantly the record is devoid of evidence showing that she was in any way
intimidated into having sexual intercourse with he defendant on June 14
- absent evidence that the defendant used force or threats to overcome the will of the
victim to resist the sexual intercourse alledged to have been rape, such general fear was not sufficient to
show that the defenandt used force required to support a conviction of rape
The states major problem in this case is that he forced her. Threatening to fix her face was to prove
something to her mother, that he is serious. That is a threat directed at Ms Brown was not related to the sex.
And even if it was there is a time issue. The threat came a lot before.
In NC a threat of force is sufficient
As prosecutor would argue- pushed her legs apart. Is that enough? Need to know how violent it was,
whether she assisted in moving her legs apart. Is it enough to get to a jury? It is sufficient not in NC in
nc it has to be 1) NON consensual and 2)forceful so in NC non consensual and aquience does not equal
rape.
The standard of reversing jury is that no rational trier of fact could have found for some of these facts. SO
under law of NC- no no rational prior fact could have showed force
So in essence saying that Trial Court should not have let this go to a jury to begin with as a matter of law.
These facts do not give a reasonable inference of force- and as such cant be convicted.
The supreme court of NC is really reweighing the facts not supposed to be what they are supposed to be
doing asking whether a rational trier of facts

Also the subsequent sexual history state actually brought this- to show an example of consensual sex
with him.

What would you ask about her prior sexual history with respect to pulling legs apart—whether it was
normal sexual activity? That’s what the defense would ask.

Notes: Threat of forc = constructive force and counts as force

Clashing remarks The courts unwillingness to classify the victims past experience of violence at the hands
of the defendant stands in sharp contrasr to the black letter law that a defendant knowledge of his attackers
reputation for violence or ownership of a gun is relevant to the reasonableness of his use of deadly force in
self defense.
Alliston there was sex without the womans consent, and also that there was no force. She was not forced to
engage in sex but the sex she engaged in was against her will-paradox- from the traditional male notion of
force as a fight and in such a fight you fight back
But a woman beaten and passively having consensual sex qould not fight- she may cry
Mr alliston did not beat his victim with his fists- this would define force in schoolboy terms, She was
beaten physically and emotionally prior- but this beating is such that courts are willing not to recognize.

However another feminist contends that that schoolboy rules regarding force applied unjustly to
defenseless women is a problem, however the effect of this can cause women to cheapen the self and
societal respect of women and sexual autonomy of women

Vast majority of laws in the US derive from the classic rape narrative – they require a defendant to exert
force against the victim before the state may convict him of what is commonly thought of as rape (putting
aside circumstances which victim cannot consent- underage mental deficiency incapacitated physically
helpless)- in order to be convicted of a states highest sexual offense statutes in 43 states require that the
defendant use force against the victim

16 states do criminalize sexual penetration that is nonconsensual and wo force. But these states impose less
punishment upon nonconsensual penetration, greater than half of the categorizing them as mere
misdemeanors

2. How much force?: The Resistance requirement

RUSK v. STATE
Court of Special Appeals of Marylan, 1979.
Facts: A man is convicted of second degree rape, after meeting a 21 year old mother of two at a bar,
bringing her up to his house, and having sexual intercourse with her, despite lack of force
Procedural History: Appeal to the Court of Special Appeals of Maryland, of a conviction for second
degree rape.
Issue: Is the evidence in this case sufficient for a finder of fact to conclude that the accused was guilty
beyond a reasonable doubt of rape in the second degree?
Black Letter Rule: Actual force or threat of force is a necessary element of rape.
Held: no
Reason: How much force is required? – Court looks at Hazel v. state- “force is an essential element of the
crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and
that her resistance was overcome by force or that she was prevented form resisting by threats to her safety.”
Based on this court concludes that there was no resistance on her part to the sex acts and there was no fear
that would overcome her attempt to resist escape- she didn’t try to leave, and “the look in his eyes” does
not support fear required in Hazel.

The court further contends that the trail judge in ruling on a motion to acquit must first determine that there
is legally sufficient evidence for the jury to find that the victim was reasonably in fear.
Cases show that the rule is that the victims fear which overcomes her will to resist must be a
reasonable fear. The court find the evidence legally insufficient to warrant a conclusion that the appellants
words or actiosn created in the mind of the victim a reasonable fear that if she resisted he would have
harmed her or that faced with such resistance he would have used force to overcome it.
Court does not believe that lightly choking along with the facts and the circumstances in the case
were sufficient to casue a reasonable fear which overcame her ability to resist.--> absence of force by
appellant—Insufficneint evidence to convict him of rape
So her asking him not to kill her—shows fear nad non consent.
Is a threat of force sufficient in MD yes force or threat of force- implied force from asking if she does
what he wants will you let me go without killing me. This shows that from her perspective there is at least a
threat. From her perspective there is no doubt that she feels threated. Is that enough? The odd thing about
rape is that there is lil mens rea there- its mostly an actus reus crime.
We can infer that he knew she didn’t want to , he knows that she feels threatened. SO now if it goes ahead
then why wouldn’t it be rape? Well it is and that is why its overturned.
This court says that she didn’t resist and as such she wasn’t forced.
Up to the point where she said please don’t kill me it could have been a mistake, however when she said
that he should have know that he was raping her.

To equate robbery and rape is difficult- 1) no one wants to hand over wallet- ppl do have consensual sex 2)
robbery usually stanger- although many times in rape is with an acquaintance

Whatever threat of force counts for robbery ought to count for rape- however it is different.

Why do you think law developed a resistance requirement- although this is gone these days Victorian
era- adultury v rape- to show rape needed resistance- audultury is no longer a crime, rape is- woman
wanted to show that it was not her act- to show this is the best evidence that she resisted.
Dissenting: The court substituted their own view of evidence for that of the judge and jury
In MD 2nd degree rape: a person is guilty of second degree rape is he enageges in vaginal
intercourse with another person, by force or threat of force, against the will, and without consent
of the other person.

Consent is not the issue here only whether there is sufficient evidence of force or threat of force.
The judge criticisized the majority of reweighing the facts- the jury could see them hear then and sense
whether there is a threat of force- they should be asking could any rational trier of fact find a threat of force

The court confused the 2 elements of force and lack of consent and think of them as 1-what seems
to cause the confusion is the notion that the victim must actively resist the attack upon her . If she fails to
offer sufficient resistance (to the satisfaction of the judge) a court is entitled to, or at least presumes the
entitlement to find that there was no force or threat of force, or that the act was not against her will, or that
she actually consented to it or some combination of these elements which lead to the conclusion that the
victim was not raped

So the focus is on the victims acts rather than her assailants- Judge accepts it as binding as illogical as it is

How much resistance must she offer?

3) if the acts and threats of defendant were reasonably calculated to create in the
mind of the victim- having regard to the circumstances in which she was placed-
a real apprehension, due to fear, of imminent bodily harm, serious enough to
impair or overcome her will to resist, then such acts and threats are equivilantt to
force; 2) submission is not equivilant to consent and 3) ther real test is whether
the assault was commited without the consent and against the will of the
prosecuting witness.

The judge goes on to criticize the evidence or lack there of of size and intonations of the victim and the
assailant. And contends that there is a picture painted of her by the evidence that she was on the make. And
the alanysis of her contemplation after the act was unwarrneted
If this had been a robbery and the appellant had taken her keys and demanded her wallet- there
would def have been enough threat of force and negate of consent. No one would say that because she
failed to defend herself or yell that she consented.
But that action is a prerequisite in rape cases
Goes on to point out that the most common type of resistance in rape cases is verbal- and that it IS
RESISTANCE
Only 12% attempt flight and only 12% offer physical resistance- rape victims who resisited where
more likely to be injured than those who did not
Judge and Jury had previously concluded that there was sufficient evidence that the appellant had
sexual intercourse with the prosecutrix by force or threta of force against her will without consent- i.e. that
the extent of her resistance and reasons for failure to resist further were reasonable
Yet the court decided without ability to see or hear the witness that Prosecutrixs fear was not a
reasonable one or that there was no fear at all
Furtehrmore- the actions in rape were enough to get him on an assault charge

STATE v. RUSK
Court of Appeals of Maryland, 1981.
Facts: The Court of Appeals of Maryland affirms the trial courts conviction of second degree rape, finding
that the reasonableness of the victim’s apprehension of fear was a question of fact for the jury to determine.
Issue: Is an implied threat sufficient to satisfy the element of force for rape?
Black Letter Rule: An implied threat is sufficient to satisfy the element of force for rape.
Analysis: Yes, and reverse court below and was in error for the fundamental reason so well expressed in
the dissenting opinion. The reasonableness of the victim’s apprehension of fear was plainly a question of
fact for the jury to determine.
Dissent: Court said evidence not enough to convict him of rape.
 Although no longer requirement for woman to reisit to the utmost or when such resistance is
foolhardy, her acquienscence in the act of intercourse must stem form fear generated by something of
substance.- she cannot say im scared- and turn consent or unwillingness into submission by force- she must
follow the instinct of every proud woman to resist
She must resist unless the defendant has objectively manifested his intent to use physical force to
accomplish his purpose
Evidence reveals no conduct by the defendant reasonably calculated to cause the prosecutrix to be
so fearful as to fail to resist- and thus element of force is lacking
In the absence of any verbal threat to do her seroious bodily harm or the display of any weapon
and threat to use it judge finds it difficult to understand how one oculd participate in the sexual activities
and not be willful.

Notes: Brown v. State: There must not only be absence of mental consent or assent, but there must be the
most vehement excersizze if every physical means or faculty within the womans power to resist the
penetration of her person, and this must be shown to consist until the the offense is consummated really
strict regarding resistance

Should resistance requirement be abolished? Yes because resistance can prove inviutation to serious bodily
harm or death. Also it is wrong to excuse the male assailant of the grounds that the victim failed to protect
herself with the dedication and intensity that the court would expect a reasonable person in her situation.
Where there is force there failure for a weak and fearful victim to display utomost or earnest resistance
should not be exculpatory

MPC is silent regarding consent and resistance By focusing on the actor who compels the victim to
submit by force – strikes a new approach. Not to say consent is irrelevant and inquiry to resistance should
not be made compulsion implies non consent just as resistance is evidence of nonconsent- but at the
same token lack or resistance on a particular occasion will not preclude the conviction of rape if the jury
can be convinced by the context and the degree of force employed by the actor that submission was by
compulsion.

How rape law developed – at a time when sexuality was decreed to be a force so dangerous that it could not
be left to self regulaton- sexual autonomy was discouraged and criminalized
Rape and fornication and audultry were all criminalized fornication and adultery meant hat men and
women were accomplises and both were guilty.

So to try to portray that women were not guilty- rape complaints-a woman criminalized would attack the
claim of fornication and audultury – and would have to assert defensive strategies to her accusation 1)
establish that man physically forced her to participate- overpowered by physical strength- that there was no
actus reus on her part- and that he alone was culpable. Evidence of resistance would add substaintial wight
to her claim that she would not be punished bc she commited no act at all—function to support her claim
that the intercourse occurred without even minimal connection between her mind and illegal conduct
2) that she submitted under duress-she must show that the assailant threatened to kill or inflict serious
bodily injury on her if she refused to comitt the crime he proposed- and thus was not an accomplice as in
the case of adultury as such rape doctorines have imposed legal burdens greater than those faced by other
crime victims

Also rape victims are stigmatized by themselves and society- want to believe world is just and therefore not
wanting to be put in the position of the victim rationalize that victims are partially responsible for own fate
The rape incident page 420-421 is this consent- giving up is not consent aqueinsance when you don’t
have a reasonable choice is not consent. However persistence does not equal force- this is one of those
cases that no consent yet no force.
There is a notion that you dotn want people to be put to the choice of consent.

3. “No” (or the absence of “yes”) as force?

Susan Estrich – Rape
Susan Ager – The Incident
COMMONWEALTH v. BERKOWITZ
Superior Court of Pennsylvania, 1992.
Facts: A college student is convicted of raping his girl friend in his dorm room, after the friend voluntarily
entered his dorm room and repeatedly said no to his sexual advances although she did not physical resist.
Procedural History: Conviction of rape.
Issue: Is verbal resistance alone, sufficient to prove that force was used?
Black Letter Rule: Verbal resistance alone, is not sufficient evidence of rape.
Held Trial court erred in determining that the evicence was sufficient to convict of rape- new trail
discharege reverse and remand
Reasoning: pensylvania rape: A person commits a felony of the first degree when he engages in sexual
intercourse with another person not his spouse by 1) forcible compulsion 2) by threat of focible compulsion
Also under the statute: the alleged victim need not resist the actor in prosecution under this chapter
provided, that nothing in this section shall be construed to prohibit a defendant from introducing evidence
that the alleged victim consented to the conduct in question
Forcible compulsion includes not only physical force or violence but also moral psychological or
intellectual force used to compel a person to engage in sexual intercourse against that persons will.
Threatened forcible compulsion- by threat of forcible compulsion that would prevent resistance by
person of reasonable resolution this introduces an objective standard regarding the use of threats of
forcible compulsion to prevent resistance by the legislator.
So the dertemination of whether there is sufficient evidence to demonstrate beyond a reasonable
doubt that an accused engaged in sexual intercourse by forcible compulsion, or by threat of such forcible
compulsion that would prevent resistance by a person of reasonable resolution is, of course, a determination
that will be made in each case based on the totality of circumstances that have been presented to the
factfinder.- factors tro be considered are ages, mental and physical conditions of both, atmosphere and
setting, positions of authority of the accused, domination or custodial control over the victim, and whether
victim was under duress.

No evidence was adduced which established: 1)mental coercion,  like ages, recod devoid of any ohysical
or mental disparities, atmosphere not coercive-middle of day walked into dorm at her own volition, she was
nt under duress,and he was not her superior in any way-So no moral psychological or innetlectual coercion
was put upon the victim according to evidene

2)or a threat of forcible compulsionthere was no implied or express threat made by the
appellant which would prevent resistance of person of reasonable resolution
3)or force inherently inconsistent with consensual intercourse was used to complete the
act of intercourse.  don’t know their sizes etc, these acts of leaning etc. are not inconsistent with
consensual relations. There is no evidence that the victim if she had wanted to do so could not
have just removed herself from the room wo any risk of dange- The short time frame could
indicate that she wanted the encounter as much as it could indicate that she didn’t- she said no but
this in itself cannot with the existing statutes suffice to support a claim of forcible compulsion

Evidence of verbal resistance is only found sufficient when coupled with a sufficient threat of forcible
compulsion meant coercion, or actual physical force of a type inherently inconsistent with sexual relations-
so the no evidence is relevant to prove that it was against the victims will, but not sufficient by itself or to
prove forcible compulsion

10 years ago there was much more rejection of acquaintance type thing but things seem to be shifting
Nonconsensual act and we accept this as being normal

STATE OF NEW JERSEY IN THE INTEREST OF M.T.S.

Supreme Court of New Jersey, 1992.
Facts: A 17 year old is convicted of the rape of a 15 year old who was asleep at the time of penetration.
Procedural History: Conviction for acquaintance rape.
Issue: Is resistance a necessary element of rape? (NO)
Holding: reverse judgement of appeals and reninstate conviction of 2nd degree sexual assault
Reasoning: NJ- sexual assault is the commission of sexual penetration with another person with the use
of physical force or coercion
Use of physical force and sexual penetration are separate and distinct elements of the offense
What is physical force- state- any amount of sexual touching brought about involuntarily- so
penetration wo consent= physical forse
Public defender= force used to overcome lack of consent- this equates force to
violence- some amount of force in addition to penetration
Both views are within the definition of force in dictionary
So look at legislative intent to define physical force: until 79 rape was defined as 1) carnal knowledge of
woman 2)forcibly 3) and against her will. All three elements remained essential to the crime- so the state
would need to show that it was forced and against her consent the presence or absence of consent turned
on credibility. To demonstarate that the victim had not consented , and also that sufficient force had been
used to accomplish rape the state would have to demonstrate resistance. This insistence on resistance
greatly minimized the importance of the assualtive and forcible aspecvt of defendants conduct, and focused
on the victims response.  this separated rape from other common law crimes
So reformers sought to shiftthe focus on the victims behavior to the defendants conduct as they all
agreed that the burden of showing non consent should not fall on the victim of the crime. Similarly with
regard to force rape law reform sought to give indipendent significance to the forceful or assaultive conduct
of the defendant and to avoid a definition of force that depended on the reaction of the victim Reformers
wanted to break the connection between force and resistance
The redrafters of the rape law adopted the Code of Criminal Justice drafted by NOW who
intended to remove all features found to be contrary to rape victims, rejecting the MPC approach that
compulsion implies non consent and that the word compels to submit require more than token initial
resistance.
NJ code of criminal justice does not refer to force as overcoming will pr physically
overpowerin or submission of the victim. it does not require demononstrated non consent of the
victim.
It is colored by the understanding of criminal battery which as defined is the unlawful
application of force to the person of another- application of force is criminal when it a) results in
physical injury or b) an offensive touching*
THEREFORE the court is satisfied with an interpretation of the statutory crime of
sexual assau;t to require physical force in addition to that entailed in an act of involuntary
sexual penetration would be fundamentally inconsitant with the legislative purpose to
eliminate any consideration of whether the victim resisted or expressed non consent.
They conclude therefore that any act of sexual penetration engage in by the defendant
without the affirmative and freely given permission of the victim to the specific act of
penetration constitutes the offense of sexual assault.
So force= if the defendant applies any amount of force against another person in the
absence of what a reasonable person would belive to be affirmative and freely given permission
to the act of sexual penetration.
Permission can be inferred form acts or statements reasonably viewed in light of the
surrounding circumstances. Permission is demonstrated when the evidence in whatever form is
sufficient to demonstrate that a reasonable person would have believed that the alleged victim
had affirmatively and freely given authorization to the act
The state must prove beyond a reasonable doubt that there was sexual penetration and
that it was accomplished without the affirmagtive and freely given permission of the alleged
victim – if there is evidence to suggest that theteh defendant reasonably believed that such
permission had been given, the state must demonstrate that the defendant did not belive that
affirmative permission had been given or that such belief was unreasonable under the
circumstances- state bears burden of proof.

Applied to this case the victim did not concede according to trial court- and court holds
that the record provides resoanbale support for trial courts disposition
This case exemplifies a transition in rape law. Specifically, the opinion in effect does away with the
requirement of resistance. Although the element of force still expressly exists, the amount of force
required amounts to as much force as needed to complete the act of sexual penetration. Therefore, a
male commits forcible rape if he has intercourse without securing a consent or a yes, either by words
or actions. The victim is not required to resist, nor to say no. The court’s analysis raises a concern:
What conduct short of an express “yes” is sufficient to constitute permission? This case leaves the
jury to decide whether the evidence presented leads to the conclusion that the defendant was
reasonable in his belief of the victim’s consent.

4. One Final Wrinkle: Withdrawn Consent

PEOPLE v. JOHN Z.
Supreme Court of California, 2003.
Facts: After initially appearing to consent to sexual intercourse with her boyfriend’s friend, John
(D), Laura told him that she wanted to go home, but he continued having sexual intercourse with
her and, on the basis of this action, was convicted of forcible rape.
Procedural History: Forcible rape conviction.
Issue: Whether the crime of forcible rape is committed if the female victim consents to an initial
penetration by her male companion and then withdraws her consent during an act of intercourse
but the male continues against her will
Black Letter Rule: A female’s withdrawl of consent to sexual intercourse serves to nullify any
earlier consent she has given and subjects the male to forcible rape charges if he persists in what
has then become nonconsensual intercourse.
Held: that a withdrwal of consent effectively nullifies any earlier consent and subjects the male to
forcible rape charges if he persist in what has become non consensual intercourse. Affirmed
Reasoning court concludes that the offense of forcible rape occurs when during apparently
consensual intercourse the victim expresses an objection and attempts to stop the act and the
defendant forcibly continues despite the objection
Section 261 a 2 defines rape as an act of sexual intercourse where it is accomplished
against a persons will by means of force violence duress menace or fear of immediate and
unlawful bodily injury on the person or another. 263- the essential guilt of rape consists in the
outrage to the person and the feelings of the victim of the rape. Any sexual penetration no matter
how slight is sufficient to complete the crime. But no cali court has held that the victims outrage is
an element of the crime of rape.
So the crime of rape therefore is necessarily committed when a victim withdraws
consent during an act of sexual intercourse but is forced to complete the act. The statutory
requirements are ment as the act of sexual intercourse is forcibly accomplished against the
victims will. The outrage to the victim is complete.
Forcible rape occurs when the act of sexual intercourse is accomplished against the will
of the victim by force or threat of bodily injury and it is immaterial at what point the victim
withdraws her consent so long as the withdrawl is communicated to the male and he thereafter
ignores it
-the present case shows that she did withdraw he consent
Vela court argues that a reasonable amount of time should be given because of primal urge theory-
man needs reasonable amount of time to stop after notified
However nothing in statute or case law suggest that the defendant is entatled to persist
after the victim withdraws consent-either way in this case he did have reasonable time- she said no
3 times
Dissenting- evidence is shaky as to whether there was withdrawn consent. Either way there needs
to be force to complete the act- mere intercourse not transformed into rape after withdrawing
consent- not clear that she was forcibly compelled to continue- he asked for more time, not
demand it and threatened no consequences if she did not comply.
And how soon is soon enough for Jon to have had to dissist?

5. Mens Rea
COMMONWEALTH v. SHERRY
Supreme Judicial Court of Massachusetts, 1982.
Procedural History: Defendants appealed the judgment of the Superior Court Department
(Massachusetts), which convicted them of rape and denied their motions to set aside the verdicts and to
enter findings of not guilty. A jury acquitted defendants of kidnapping but convicted them of rape without
aggravation for the rape of the victim at the home of one of the defendants.
Facts: Three doctors are convicted of rape after taking a nurse to a hosue and separately having intercourse
with her, despite the doctors’ mistake-of-fact as to the nurse’s consent.
Issue: Must a defense of mistake-of-fact as to whether consent was given be based on a reasonable good
faith standard?
Black Letter Rule: A defense of mistake-of-fact must be based on a reasonable good faith standard
Held: No error
Reasoning
The defendants wanted the jury to be instructed to find beyond reasonable doubt that the accused had actual
knowledge of the victims lack of consent. An on appeal the defendants argue that the mistake of fact
negating criminal intent is a defense to the crime of rape. This defense however requires that the accused
act in good faith and with reasonableness. Whether a reasonable good faith mistake of fact as to the fact of
consent is a defense to the crime of rape has never been decided in the commonwealth.
Even if they assumed that that there was such a defense however the defendants did not request a jury
instruction based on reasonable and good faith mistake of fact.
No American court of last resort recognizes mistake of fact without consideration of its reasonableness as a
defense
Rape is a general intent offense. Therefore a defendant is guilty of rape if he possessed a morally
blameworthy state of mind regarding the females lack of consent. Thus, as a general rule, a person is not
guilty of rape if he entertained a genuine and reasonable belief that the female voluntarily consented to
intercourse with him. This rule conforms the ordinary common law mistake-of-fact doctrine relating to the
general-intent offenses. Mens rea rarely comes up in rape because in traditional rape prosecutions, the
element of force required to secure intercourse would effectively invalidate a claim that the perpetrator was
mistaken with regard to consent. Mens Rea is more significant in acquaintance rape prosecutions, in
jurisdictions where resistance rule has been eliminated, and in jurisdictions where a conviction may be
obtained in the absence of force beyond that which is necessary for intercourse.

General intent crime – with rape the prosecution does not have to prove that you knew that the person did
not consent, it is not an element of proof
A reasonable mistake of fact can be a defense – they did not ask for an instruction, they wanted prosecution
to be required to show that they had actually knowledge, they say prosecution does not have to prove that
Court says they do not have to answer that because they did no raise it (but in dicta they say it)
Only meaningful when you are talking about acquaintance rape situation – really did think she was
consenting
Could get rid of all of these problems (although highly criticized) – MTS Rule – make absolutely sure
whenever you engage in sex that your partner is absolutely clear that’s what she wants to do
All general intent crimes reasonable mistake of fact is not sufficient to provide a defense – in acquaintance
should allow reasonable mistake of fact

Notes: general rule is that a person is not guilty of rape if he entertained a genuine and reasonable belief
that the female voluntarily consented with him

Cali supreme court decided that reasonable mistake instruction should not be given unless there is
substantial evidence of equivocal conduct of the part of the female.

C. Rape by Fraud or non-physical threats

BORO v. SUPERIOR COURT
California Court of Appeal, 1st District, 1985.
Facts: A man is charged with rape after fraudulently inducing a woman to have sex with him in order to
cure her illness, and his motion to dismiss denied, despite the woman’s consent to the intercourse.
Issue: Whether someone who is fraudulently induces another to concede to sexual intercourse can be
charged with rape under 261 subdivion 4
Black Letter Rule: Fraud-in-the-factum, not fraud in the inducement, will vitiate consent to intercourse.
Held: no
Reason: Leading authority has written that if deception causes a misunderstanding as to the fact itself
(fraud in factum) there is no legally cognizable consent because what happened is not that for which the
consent was given;whereas consent induced by fraud is as effective as any other consent, so far as direct
and immediate legal consequences are concerened if the deception relates not to the thing done but merely
to some collateral matter (fraud by inducement)

In California courts have by statute adopted the majority view that fraud is the factum not the inducement
and have thus held it to vitiate consent

The language of the statute is plain, and legislature understood how to draft the statute to encompass fraud
defactum (subdivision 5) and how to specify fraud in the inducement to vitiate consent. But did not

Courts have confronted the genereal rule that fraud in the inducement does not vitiate consent

So because the fraud was not the sex itself but fraud in th inducement- it can not be shown that Mrs R was
unconscious of the nature of the act

In general, fraud-in-the-factum exists when the act consented to differs from the act that actually took
place. In the instant case, the fraud existed in a matter collateral to the act of sexual intercourse.
Specifically, fraud was used to obtain consent to the act of sexual intercourse, but the victim knew that she
had consented to the sexual intercourse. The legilature understood that including fraud-in-inducement
would pose serious concerns about where to draw the line in rape cases.

Notes: the issue here is where the line should be drawn- as a matter of degree where consent to intercousres
is obtained by promises of travel fame celebrity and the like- ought the liar and seducer be charged as a
rapist? Or someone eho threatens firing ? hiring? Etc.

This is fraud in the inducement – used fraud to induce her to have sex but not rape bc she is agreeing to
have sex except if there is a spouse involved
Fraud in factum – she is in his office, let me examine you with special instrument and turns out to be his
penis – really is nonconsensual act of intercourse
Confusion – fraud in factum when burglar comes in your house and you think it is your husband and you
have sex with the burglar – easier to just say going to have special spouse rule
If fraud in inducement is rape what do you do about all of the guys that have lied for sex?

D. Rape Shield Laws

STATE v. HERNDON
Court of Appeals of Wisconsin, 1988.
The sixth amendment gives the defendant of a fair trial by providing him with the right right to cross
examine all witnesses against him. This helps assure the accuracy of the truth determining process by
revealing any possible biases or prejudices or ulterior motives of the witness.
6th Amend also gaurentees a defendant the right to compulsory process of witnesses to testify in his
behalf

However a balancing test min which the states interest in enacting a statute is weighed against the
constitutional interest of the defendant, and if a state statute is found to need to infrindge on his rights
to ensure justice then it ias allowed when decided by supreme court

Rape shield laws and the defendants rights: rape shield laws have been enacted by every sate, they
deny the defendant in a sexual assault case the opportunity to examine the complaint concerning her
prior sexual conduct or reputation. They also deny the defendant the opportunity to offer extrinsic
evidence of the prior sexual conduct or reputation of the complaint.
Policy underlying 1)prevents the defendant from harassing or
humiliating the victim with evidence of rep or prior sex acts 2) this type of evidence has no bearing on
 whther the complaint consented to sexual conduct with the defendant at the time in question3)
exclusion of evidence keeps the jury focused on issues relevant to case at hand only 4) the law
promotes effective law enforcement because the victim will more readily report and testify sexual
assault cases if she does not fear that her prior sexual conduct will be brought before the public.

However courts have also universally held that both cross examination and witnesses brought on
behalf of the defendant may shoe prior consensual sex if that evidence shows a complainants unique
pattern of conduct similar to the patter of the case at hand or shows that the complainant may be biased
or have a motive to fabricate charges.
Black Letter Rule: The interest of rape-shield laws (which prohibit the cross-examination of rape victims)
and a defendant’s Sixth Amendment rights must be weighed in order to determine whether certain evidence
should be admissible.

PEOPLE v. WILHELM
Michigan Court of Appeals, 1991.
Procedure: following a jury trail the defendant was convicted of 3rd degree criminal sexual assault.
Defendant appealed claiming that the trail court abused its discretion when it prohibited hum from
introducing certain testimony concerning the alleged prior acts of the victim.
Facts: After being convicted of third degree criminal sexual conduct, the defendant appealed, arguing
that evidence of the victim’s prior provocative behavior should have been admitted on the issue of
consent.
Issue: Did the rape shield statute prevent the admission of testimony regarding the victims provocative
conduct toward other men earlier on the night of the sexual assault?
Black Letter Rule: Evidence of a victim’s sexual conduct with a third party is irrelevant to the issue
of whether she consented to sexual intercourse with the defendant.
Held: Yes upheld
Analysis: the defendant claims that another states similar rape shield statute has been held to not
prohibit such evidence- citing State V. Colbath
The defensnat claims the public nature of victims acticities should remove them from protection of rs
statute. Court disagrees, not in the statute, the defendant here wants to treat the statutes purpose of
protecting victims prvacy as though it only extends to provate acts- but one of the purposes is to
encourage victims to reaport and testify without fear that the courts proceedings will veer from an
impartial examination of the accused conduct on the date in question and instead take on the aspects of
an inquisition during which she would have to justify her sexual past. Furthermore the court cannot see
how sexual conduct wihich is consensual with a third party in public indicates that thew woman would
exchange similar behavior with the defendant. Evidence of her unchaistity Is insufficient of affording
proof that she had consentual intercourse with the defendant.
The defendant further contends that the preclusion of evidene under RS statute deprived him of his
right of confrontation. Evidence of victims sexual consent with third party is irrelevant to whether the
victim consented to sexual intercourse with the defendant.
Defendant also says that her acts with third person in public place and shortly before the period of
tume during which he claims the victim had consented to sexual relations with him afford relevant
proof, of his claim
He attempts to analogize his case with the colbath case, Colbath is distinguishable bc- 1) victims
behavior constituted a public display of general interest in sexual activity in which the defendant was
involved and 2)the victim had left the bar several times with various men and the beating she received
from the defendants live in companion in the case may have provided a motive for fabrication.
The victims alleged conduct in this case occurred with 3rd parties and although observed by the
Defendant was not relevant to the issue whether she consented to sexual intercourse with him later on
the same evening- bc evidnce not relevant defendant was not denied his right of confrontation

3. things defendant might want to introduce:

1) prior sex acts with him
2) prior sex acts with other people
3) lack of chastity (sexual conduct)
Rape Shield Laws are there to allow defendants not to introduce prior sex acts the alleged victim has had
Corroboration

E. Statutory Rape
GARNETT v. STATE
Court of Appeals of Maryland, 1993.
Black Letter Rule: Criminal intent or mens rea, is not an element of statutory rape.

At common law any time you had sex with minors under 10
Most states now 12 or younger is punished as forcible rate, the idea is she cannot consent when she is that
young
Strict Liability crime

Statutory rape where in one sense the lack of consent of female is not an element of the offesnse. In a
broader sense the lack of consent is deemed to remain an element but the law makes a conclusive
presumption of the lack thereof because she is presumed to innocent and naïve to understand the
implication and nature of her act the goal is not to punish the naïve female but by imposing criminal
sanctions against the male who is conclusively presumed to be responsible for the occurrence

Feminists: 1800 feminists upheld stat rape laws becayse they saw youthful sexual activity as a tragic firs
step transforming chaste maidens into fallen women (Victorian times)
But by late 20th century many voiced concerns that statutory rape laws amounted to state repression of
female sexuality. This concern amoung others lead feminists in the 70s to oppose gender based stat rape
laws, arguing that they perpetuated offensive gender sterotypes and restricted the sexual autonomy of
women.
Stat rape law s on 1 hand protect females but on the othr hand restrict sexual activity of young women
So there was a drastic revision to stat rape laws – all but 15 jurisdictions have meade the crime of statutory
rape gender neutral. Others elected to abolish the crima altogether. The gender neutral states- most of these
states impose liability only if the age gap of 2-5 years exists btwn the victim and the defendant and the
victim is below the statutory age of consent

However now there are many teen p[regnancies etc, which could be curtailed by stat rape laws- bc of this
the supreme court has upheld gender specific statutory rape laws- the court reasoned that a state may
justifiably protect young women but not young males from underage sexuality in order to deter teen
pregnancy- it is said that virtually all of the significant hamful and inescapably indentifiable consequences
of teen preganancy fall on the young female.
However this has been quesyioned because when an older woman takes advantage of a young boy research
demonstarates significant negative aftershocks- substance abuse suicidal thoughts sexual disorders and
violent behavior- common in male victims

Model Penal Code – devised before the advent of a lot of these rape shield statutes
Gender specific and there is spousal immunity
Focus is on the guys conduct and not on woman’s consent
Fraud in the factum is a rape
Corroboration and prompt reporting requirement

CHAPTER 9: GENERAL DEFENSES TO CRIMES

A. Categories of Defenses
Paul H. Robinson – Criminal Law Defenses: A systematic Analysis
I. System of Defenses
Defense - any set of identifiable circumstances or conditions which may prevent a conviction for an offense
1) Failure of Proof Defenses - Instances in which because of conditions that are the basis for the
defense all elements of the offense charged cannot be proven. They are in essence no more than
the negation of an element required by the definition of the offense
Basically the prosecution did not do its job – did not show all the elements of the offense – you
have not shown beyond a reasonable doubt that I engaged in a voluntary act with a mens rea
 2) Offense Modifications - do more than simply negate an element of the offense. They apply
when all elements of the offense are satisfied. They provide a more sophisticated account when
needed of the harm or evil sought to be prohibited by the definition of the offense. While the actor
has satisfied all elements of the offense charges, he has not in fact caused the harm or evil sought
to be prevented by the statute defining the offense. Some offense modifications are considered
defenses rather than simply rules or doctrines, but they operate similarly to modify the definition
of the offense.
The person engaged in conduct which is formalistically criminal but this is not the sort of thing we
are concerned about
3) Justifications - The harms caused by the justified behavior remains a legally recognized harm
which is to be avoided whenever possible. Under special justifying circumstances, however that
harm is outweighed by the need to avoid an even greater harm or to further a greater social
interest. Likely to have a complete defense because his conduct and its harmful consequences are
justified
If conduct is justified we basically say a social harm has not results where as an excuse social
harm has resulted but we understand why you caused it and we are not going to punish you
severely as we would if you created the same social harm in a different context
4) Excuses - excuses admit that the deed may be wrong, but excuse the actor because conditions
suggest that the actor is not responsible for his deed. The defendant is exculpated only because her
condition at the time of the offense- her paranoid delusion (eg)- suggests that she has not acted
through a meaningful exercise of free will and therefore is not an appropriate subject for criminal
liability
5) Nonexculpatory Public Policy Defenses - statute of limitations, diplomatic immunity, judicial
legislative and executive immunities, incompetancy etc, are all examples of defenses which
although the actor has caused the harms sought to be prevented by statute and is not justified or
excusable, the actor may non the less have a defense.
A. Not to be confused with justification- Justification- the harm done by
the defendants act is outweighed by social benefit that it creates and as
such is not blameworthy, nonexculpatory - the defendants conduct is
harmful and creates no social benefit, the defendant is blameworthy.
The underlying societal benefit underlying the defense arises not from
his conduct, but from forgoing his conviction. He escapes conviction
despite his culpability

Joshua Dressler – Justifications and Excuses: A Brief Review of the Concepts and the Literature
I. Introduction
II. Justification and Excuse: The Basics
III. Why Should we Care about all of this?
A. Generally
B. Sending Clear Messages
C. Providing theoretical Consistency in the Criminal Law
D. Burden of Proof
E. Accomplice Liability
Excuse v. Justification:
1) in excuse defense defendant has burden of proof to persuade jury to show compassion by excusing her
for her socially injurious act
2) accomplices - excused in justification but not excuse defense

Burden of Proof: 2 parts

Burden of Production – Trying to create a triable issue of fact, offering enough evidence to create a triable
issue of fact – convincing the judge that there is enough evidence that there is a reasonable trier of fact
could conclude that he was guilty – does not mean the judge is convinced, ask yourself could a reasonable
person conclude this
Have you produced enough evidence to make a case? Yes  go forward
Burden of Persuasion – Have you convinced the trier of fact
Being prosecuted for murder, murder is an unlawful killing, an unlawful killing is one for which I do not
have a justification or excuse – Who has the burden?

B. Burden of Proof
PATTERSON v. NEW YORK
Supreme Court of the US, 1977.
Facts: Paterson saw his wife who was in relations with northrup from a window in father in laws house. He
entered the house killed Northrup. Patterson was charged with second degree murder: 1)intent to cause the
death of another person 2) causing the death of that person or third person.
New york also has a manslaughter statute under which a person is guilty of manslaughter if he intentionally
kills another person under circumstances which do not constitute murder bc he acts under extreme
emotional disturbance for which there is a reasonable explanation or excuse. EED is an affirmative defense
in NY. He raised defense. Jury was instructed that if they found beyond a reasonable doubt that he intended
to kill northrup but D established by evidence that he acted under EED hes should be charged with
manslaughter instead of murder. Jury found him guilty of 2nd degree murder.
On appeal D argues that NY statute unconstitutionally shifted the burden of proof to the defendant. Appeals
and Supreme did not find unconstitutional and upheld conviction of second degree murder
Issue: does it violate a Ds 14th amendment due process rights is a state requires him to bear the burden of
proof regarding an affirmative defense
Held: No
Reason: although D points to Mullany v. Wilbur that Main held statute unconstitutional bc it places
burden on the defendant to disprove element of the crime charged the same does not apply in NY. In Maine
Malice aforethought was required for murder- mains statute provided a lesser punishment for ppl who kill
in heat of passion or provocation and without malice aforethought- Jury was instructed that it was murder
unless it could be proven that there was provocation or in heat or passion bc malice was defined as – any
deliberate cruel act committed by one person suddenly or without provocation. The burden of proof was
then shifted to defendant to prove hear of passion from provocation
In mulleny statutory presumption was malice aforethought, NYs doesn’t have it and thus all needs to be
proven is intent and that he did it. A defendant is not required to disprove any element for which crime he
is charged. However the defense of EED does not negate any elements of the statute, it is a seperate issue
regarding mitigating circumstances. And as such it is the defendants burden to demonstrate the mitigating
circumstances. The state is not required to prove non existence of mitigating circumstances, just to prove
elements of the crime. Due process requires prosecutution to prove beyond a reasonable doubt all ofth
eelemnts included in the definition of a crime- proof of nonexistence of an affirmative densense is not
required
Dissent: not so different, court struck mains law down because the defendant was required to show that he
acted in the heat of passion, in order to negate an element of malice*- and that this shifting of burden of
proof is unconstitutional.
Mains statute is invalid bc the fact of malice was presumed unless the defendant persuaded the jury
otherwise by showing that he acted in the heat of passion

The court then says that becase EED is an affirmative defense , it passes constitutional scrutiny. However
in NY statute there is no mention of malice aforethought . However the absence of malice is written into its
statute entitled as an affirmative defense. D is required to show through evidence that he acted under EED.
The burden in Murry is the same burden here. The unstated presumption in NYs law is the same
presumption in Mains law that is unconstitutional. EED is critical in being convicted btwn murder and
manslaughter. And Prosecution should bear the burden of disproving EED to gain conviction Heat of
passion is extremely important in determing degree of conviction . And the presence or absence of EED
makes a huge difference betwn degree of conviction- a legislatures ability to write around the requisite
elements should not provide constitutional protection to the statute.

Affirmative defense: a legal defense that when proves relieves the accused from the responsibility for his
otherwise criminal conduct

Mitigating circumstances – extenuating circumstances which surround illegal conduct which may lessen
the severity of punishment.

So a state may require a defendant to bear the burden of proving to a jury the he should not be found guilty
of the crime charged bc he has a valid affirmative defense.

Is a defense an element of the crime?

NY says there are 2 elements – 1) intent 2) death
In Mullaney – state mentioned nonexistence (malice aforethought) of the affirmative defense
Martin v. Ohio – charged with aggravated murder – M is saying acted in self defense so if I acted with self
defense I could not have acted with prior design, in this case she had the burden but should not have
In Patterson because the excuse of extreme emotional defense was not included in the second degree
statutory murder in NY, then the defendant has to show it by the preponderance of the evidence
They say Mullaney is difference because State defines crime as nonexistence of justification because it
required malice aforethought – the nonexistence of a defense was part of the crime
In Patterson - If the nonexistence factor is part of the crime then the State has burden to showing that
Dissent – court interpreted Mullaney wrongly
Reinterpreted Mullaney in Patterson
Problem is Martin v. Ohio
Bottom Line – state has enormous flexibility and leeway in requiring defendants to prove defenses
Question that comes out – Could you define murder as physical conduct causing the death of the other
person and then have defendant have burden of persuasion on raising anything else
Paradigm shift from State having heavy heavy burdens (Winship) but plopping some burden of persuasion
on defendants now
Defendants want Burden to be on the State to disprove your defense, much better than you having to show
a preponderance of the evidence
Defendant must raise burden of production (evidence) defense
The Issue is in defense instructions the burden of the State to prove it by reasonable doubt or defendant to
prove it by burden of preponderance of the evidence
Is the judge going to give the instruction you want?

Notes:
Burden of production- The party on whom the burden is places has the initial obligation to introduce
evidence in support of the matter at issue. The prosecutor has the burden of production regarding the
elements of a crime; the defendant typically has the burden of production in regard to affirmative defenses.

Burden of persuasion: If a defendant produces sufficient evidence of a defense to require submission of the
defense to the jury, the next burden to consider is the burden of persuasion- the burden of convincing the
factfinder of the truth of the claim in question. They prove this through preponderance of evidence.

Sentancing factors- if prosecutor proves a sentencing fact by preponderance of evidence, in hearing before
a judge after conviction may get extreme prison sentence., In NJ it was ruled that any fact that would
expose her to a sentence beyond the maximum amount stated in a statute- and therefore subject D to greater
punishment than was given by jury, - it should be determined by a jury and not a judge and that such fact be
proven beyond a reasonable doubt

C. Principles of Justification
1. Structure and Underlying Theories of Justification Defenses
Paul H Robinson – Criminal Law Defenses

Joshua Dressler – Understanding Criminal Law

A) Searching for an Explanatory Theory
B) “Public Benefit” Theory - conduct is justified when preformed in publics interest. The benefit
to society is the underlying motivation for the actors conduct
C) “Moral Forfeiture” Theory - focuses on aggressor not defendant. PPl possess certain moral
rights or interests that society recognizes through criminal law, but which may be forfeited by
holder of the right . OS if you forfeit you right to life, i.e. by threatening to kill another, when
 defendant kills you in self defense no socially recognized harm has occurred (because you already
forfeited your right to life)
D) “Moral Rights” Theory - focuses on defendant- actor has the right to protect a particular
moral interest- has an affirmative right to protect her threatened moral interest
E) “Superior Interest” (or “Lesser Harm”) Theory - authorizes conduct when the interest of
the defendant outweighs that of person harmed. –trespassing to prevent death from storm

2. Self Defense
(a) General Principles
UNITES STATES v. PETERSON
United States Court of Appeals, District of Columbia Circuit, 1973.
Facts: Peterson cam out of his house to potest the fact that Keitt was tacking the windshield wipers off of
his wrecked car in his back yard. After a verbal exchanged Peterson went in the house and got a pistol. He
came out while loading instructed Kitt not to move or that he would shoot, and Keit who already was in the
car abt to leave exited the car demanding what D was going to do with the pistol. He turned to get a wrench
from his car, and adavanced twords Peterson who shot him in the head.
Peterson was charged with 2nd degree murder but convicted of manslaughter, Peterson appeals arguing that
a jury instruction which allowed jury to consider whether he was the aggressor, and which allowed the jury
to take into consideration the fact that he sis not retreat when decidining the necessity of his actions was
improper.
Issue: Does the instigator of a conflict have the right to claim it was necessity to take a life in order to
preserve his own
Holding: No
Reason: From time on English common law justified murder has existed in the form of self defense.  this
is a defense of necessity

If circumstances exist that require a defensive action the defensive action must be realistically necessary to
alleviate the threat imposed. The only time deadly force is necessary is when one is met by deadly force,
the therat must be real apparent unlawful and immediate
The D must have believed that he was in immediate peril and tha t his response wa necessary to save
himself—ALSO his bleif must be objectively reasonable in light of surrounding circumstances

But here court found him as the aggressor- He incited promoted or encouraged circumstances that lead up
to the killing- and as the aggressor he is not entitled to self defense because this shows that he did not act
out of necessity
ONLY if the aggressor, withdraws or communicates his intent to withdraw and in good faith attempts to do
so may have a self defense claim.

He escaped and came back –Self defense cannot be claimed by someone who deliberately places himself in
a position where he has reason to believe that his presence will provoke trouble

Also on the second contention- the majority rule says that one may stand his ground and use deadly force
when reasonably necessary to save himself. But this court leans more to the common law rule of the retreat
to the wall – which forbids deadly force when it is possible to make a safe retreat.
However D says that he had a right to SD and was not required to retreat because on his own property. This
may be so but the aggressor has no right to self defense.

Notes:
the initial aggressor is accountable for his original unlawful use of force but not for his defense against a
disproportionate use of force by the victim
In common law the aggressor needs to attempt in good faith to withdraw from struggle to claim self
defense

There is a necessity requirement, -only permitted when necessary

As well as an imminence requirement – self defense is only permitted as a response to imminent attacks
Self defense is measured against necessity,, from that premise one could say that there was no necessity to
kill in SD if the use of deadly force could be avoided by retreat
RETREAT
The issue of retreat arises only if the defendant resorted to deadly force. It is deadly force which is not
justifiable when an opportunity to retreat is at hand. Deadly force means force which an actor uses with the
purpose of causing or which he knows to create a substantial risk of death or serious bodily harm

If the actor knows that he can avoid the necessity of using force with complete safety by retreating- then
Should retreat.
So if retreating causes injury no need to retreat

In florida there is a no duty to retreat rule “ a person who is attacked has no duty to retreat and has right to
stand her ground and meet force with force if she reasonably believes that it is necessary to do so to prevent
great bodily harm or the commission of a forcible felony

Castle exception-not required to retreat from home- MPC an innocent person is not obliged to retreat from
his dwelling or place of work unless he is the assailed in his place of work by another person whose place
of work the actor knows to be..

Proportionality requirement- deadly force may not be used against a non deadly attack even if it is the only
way to avoid injury.

If you are an aggressor and I believe you are imminently about to inflict deadly physical force on me I can
inflict deadly physical force on you
What is an aggressor? Generally a jury question
Can be someone who starts a conflict with non deadly physical force
Note 3) If you are the initial aggressor you have to retreat if possible (some states) and you can regain
your right to use deadly force but in some cases you have to retreat

In Peterson – the dead guy creates the problem initially, Peterson goes into his house and comes out with a
gun and he created the situation, other guy gets out car with wrench, Peterson shoots the guy – if you
create the situation in which deadly physical force is being use you may very well use your ability to rely
on self defense

Issues of Self Defense

1) Who is an aggressor and when does aggressor ever get right back to use deadly physical force
2) Necessity - Must have a reasonable belief that it is necessary to use deadly physical force
This raises the issue of retreat
Half of the states say there is no obligation to retreat, and many jurisdictions say you have to try
to retreat – you only have to retreat if you are aware you can do so with complete safety
Exception even in those jurisdictions that say you have to retreat: you do not have to
retreat if it is your home (comes up a lot in battered women issues)
3) Imminence requirement – going to happen NOW
At common law and most statutes it is strictly construed
4) Reasonable Belief that you are imminently going to inflict deadly physical force
What is a reasonable belief?
Problem is that fear is a cultural concept – what we are frightened of is a matter of what we are
conditioned to fear
Goetz is a difficult case – fearing the other and who is the other and when does it become
reasonable – does it matter than they were black?
How subjective is it? We always say reasonable person is an objective concept but that is
nonsense, it always incorporates some elements of the actual defendant, the only question
becomes how many of those elements get incorporated?
Some courts have allowed a complete subjectiveness – the reasonable person is the defendant
As a general matter a person in the actors situation (ambiguous) think – it would seem the
physical characteristics of defendant should be built into the reasonable person – knowledge of
 the assailant is something that gets built into the reasonable person – other things that would
inform his or her judgment for the need to use deadly force in the situation  this is very
ambiguous
At common law if it was not reasonable you lost the self defense
Some say have an imperfect self defense claim and kick down the sentence

Model Penal Code and Self Defense, 3.04 – 3.09

Big difference is that you do not need a reasonable belief
If the belief is unreasonable can you be prosecuted for murder?
In 3.09 any defenses you see in 3.03-3.08, if the actor is negligent then the justification is unaffordable and
you can not be prosecuted for murder (purposely killing)
The reasonableness requirement has not been removed from the MPC (you have to look at 3.09)
Other differences
No imminence requirement --- the common law had an imminence requirement and had to do with
the force that was about to be inflicted on me, you have to be just about to kill me --- MPC says
the actor has to believe that such force is immediately necessary, it focuses on the nature of the
actor and not the force that is about to be inflicted on the actor, hence if someone reasonably
believes they have to use deadly physical force --- does the actor believe the use of force is
necessary
Under the code if I was the aggressor and using nonlethal force, and then other person takes out a
knife and says I am going to kill you, do I have right of self defense – if someone uses nonlethal
force and it escalates, if I use nonlethal force and you use lethal force against me it is a different
situation ---- page 500 – if you use deadly physical force against me I have a right to defend
myself
Let us assume, what if I use deadly force against you, you use deadly force against me, is
there any circumstance where I can again regain force against you --- yes if I back off ---
this is in the MPC, in 3.04(b)(1) – “in the same encounter” – once I have brought my use
of deadly force to a conclusion and you continue to use deadly force then I regain ability
to use deadly force
Retreat –3.04(b) under MPC you only have to retreat if you can retreat to complete safety, but you
do not have to retreat in the home or the work situation unless you were the aggressor
If I am in a faculty meeting tomorrow, colleague threatens deadly physical force, do I
have to retreat, you have to retreat if I am the person who starts it or if it is a co-worker
--- must be able to retreat with complete safety
One of the primary concern is the MPC tries to accommodate the Battered woman problem --- the
immediately necessary idea, most situation will have same result under MPC and common law,
where you are not going to have same result is in domestic violence situation
Defense of Others – at common law you could only do it if the person that you were using deadly
physical force to protect also had the right to do it --- if victim is not allowed to use deadly
physical force then you cannot either (cop situation) --- under the MPC most states say as long as
it reasonably appeared that you had the right to use deadly physical force then you can, I may get
it wrong but my belief cannot be reckless or negligent under 3.09, then I can be punished for any
crime where the culpability is negligence or recklessness
Property Rules – 3.06 – is there a situation you can use deadly force to protect property? You can
use deadly physical force to protect your home – did recognize at common law, can’t use it to
protect personal property
Before the MPC there for 3 basic approaches: (depending on jurisdiction)
1) Whenever someone is trying to get into my house – I could kill person
2) Can not do that unless they are going to engage in felony in house
3) Not enough, have to believe engage in a felony that will injure your family --- unless
they threaten you
Once the person gets in house can you use deadly physical force? Some courts say only
if they use deadly physical force when they get in and others say no no
MPC says that you can use deadly physical force who comes into your house and is
threatening to throw you out of your house and believe anything less than deadly
physical force will be injurious to you
 Can you threaten use of deadly physical force with property?
Split of cases --- some courts say you could threaten to kill someone --- some courts say
yes you can and other say you can not threaten what you are not allowed to do so that we
do not want it to escalate
As a general matter you could not use force to recapture personal property unless you were
thrown out of disposed of your real property you could use non deadly force to enter the land or if
you are in hot pursuit --- MPC is broader than the common law --- can use force to stop you
What do you do in a situation where I take your property believing I have a right to do it,
and you believe you are wrong --- do you have a right to recapture? 3.06 (1) (b) (2) ---
yes you have a right to recapture and I have a right to stop you from recapturing --- 3.06
(3) (c) – bottom line says if I take your laptop and I think I have a right to do so under
normal circumstances I have a right to resist you but you think I am wrong, code says in
that situation I have to let you take it, I can not use force to stop you – if you are disposed
and you come to take it back then I have to let you take it back

(b) “Reasonable Belief” Requirement

(i) In General
PEOPLE v. GOETZ
Court of Appeals of NY, 1986.
Facts: Four youth on a subway car solicited Goetz for five dollars, he shot all of them, and tried to kill
them. He said that if he was under more self control he would have put a bullet to one of the youths
forehead. He purchased the gun after being hurt in a mugging . He knew none had guns but thought that
they were going to maim him.
The lower court held that the objective test submitted to the grand jury to determine justification was in
error and a subjective test should have been used. Appeals affirmed dismissal of charges of attempted
murder assault and weapons possession
Issue: before a jury can find that a defendants use of deadly force was a necessity must it detriment hat not
only did the D reasonably believe his use of deadly force was necessary, but that a reasonable man in his
situation would find the use of deadly force necessary.
Holding: Reversed and charges reinstated
recognizes the defense of justification, which permits the use of force under certain circumstances. One
such set of circumstances pertains to the use of force in defense of a person, encompassing both self-
defense and defense of a third person. N.Y. Penal Law �35.15. �35.15 (1) sets forth the general
principles governing all such uses of force: a person may use physical force upon another person when and
to the extent he reasonably believes such to be necessary to defend himself or a third person from what he
reasonably believes to be the use or imminent use of unlawful physical force by such other person.

N.Y. Penal Law � 35.15 (2) sets forth limitations on general principles with respect to the use of
"deadly physical force": a person may not use deadly physical force upon another person under
circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using
or about to use deadly physical force, or (b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery

The issue in this case turns on the phrase reasonably believes – The Prosecutor instructed the Grand Jury to
use objective test when considering whether D reasonably believed that he was under the triggering
conditions above- meaning the actor must reasonably believe that another person is using or about to use
deadly physical force or He reasonably believes that such other person is committing or attempting to
commit a kidnapping, forcible rape, forcible sodomy or robbery
And that it was necessary to use the force the statute requires that the actor reasonably believes that the
deadly force was necessary to avert the threat.

When instructing the jury the prosecutor said that they were to consider the circumstances of the incident
and to determine whether the defendants conduct was that of a reasonable man in the defendant’s situation
–OBJECTIVE TEST
The lower court said that because the law is written as “he reasonably believes” that a subjective test is
more appropriate- ie whether the defendants beliefs were reasonable to him.

The court finds the lower courts understanding incorrect, as it would acquit any one who thought that their
actions were reasonable to themselves

The court focuses on Legislative intent. The Statute was drafted after MPC and differed from MPC which
only requires that a defendant show that he believed that the use of deadly force was necessary. And if
belief is wrong then convicted of another type of homicide
NYs law allows either a complete defense or no defense at all in the justification of SD. NY law inserts the
term reasonably believe- it says that the D must reasonably believe that his actions were necessary to
defend himself from a force he reasonably believes that the other is committing or about to commit against
him
Because of this insertion it shows the legislative intent of a more objective approach- and to not impose this
objective standard would allow a perp of a serious crime to go freely bc that person belived his actions
were necessary and reasonable to prevent the heam. This would allow citizens to set their own standards as
what is permissible use of force, it also allows someone to kill without impunity- To avoid such situations
the Legislature added the reasonableness standard to avoid giving liscense to such actions

The objective standard does not foreclose a jury from considering the circumstances facing the defendant.
Circumstances: action taken by assailant, physical characteristics, defendants knowledge of assailant. Also
jury may consider prior experiences of the defendant which would provide a reasonable basis for a belief
that another’s intentions were to harm or rob him or that the use of deadly force was necessary under the
circumstances.

Notes:
race and the reasonable person- such thing as a reasonable racist? No- The flaw in the Reasonable racists
self defense claim lies in his primary assumption that the sole objective of criminal law is to punish those
who deviate from statistically defined norms. For if the typical American believes that blacks have a
propensity words violence justifies a quicker and more forceful response when a suspected black assailant
is in question, this would make reasonable = typical. Not all typical beliefs are reasonable

Reasonable belief-how can it be justifiable to kill an innocent person based on reasonable belief. Some
scholars say that it is unjustifiable unless the aggressor poses an imminent unlawful threat

Unreasonable belief- The neg implication of the reasonable belief rule is that if a person acts on the basis
of a genuine but unreasonable belief that deadly force is necessary cannot claim self defense.
Some states fix this with imperfect or incomplete justification defenses- so person guilty of mansualughter
instead of murder if harbors a genuine but unreasonable belief that the decendant consititutes an imminent
threat to her life.
Imperfect defenses also apply in some states when d uses a deadly response to non deadly assault

Self Defense and innocent bystanders- MPC- SD does not apply as a justification defense when injuring
innocent bystanders 3.09

(ii) The Reasonable Person: Objective, Subjective, or a Mixed

Standard?
STATE v. WANROW
Supreme Court of Washington, 1977.
Facts: D Wanrow was convicted of 2nd degree murder and appeals
Son was playing. Mr Wesler treid to pull him off bycicle. Ran to Mrs. Hoopers house, when there Mr.
Wesler showed up, and Mrs Hooper discerened that it was him who had molested her daughter. She was
also told that he had tried to molest another young boy who lived in the same house Called policw who said
that they could not do anything until Monday. Frightend, Ms wanrow, hooper and angie and Chuck
Michael patrolled the house, Mrs. Wanrow carried a pistol. Mr. Micheal Confronted Wesler at his house,
and he and wesler came back to hoopers house to have the whole thing straightened out. Wesler was
intoxicated, and large enetered the hooper home and approached a small child. Mrs Wanrow screamed at
him to get out (she was 5’4 and on crutches). She went to get Mr. Michaels aid, and upon turning around
saw Wesler directly behing her and being startled shot him in a reflex action
Issue: are the genders of persons involved and the facts and circumstances learned prior to an altercation
relevant factors a jury must consider when deciding if defendants belief of danger was reasonable
Holding: conviction reversed- remanded for new trial
Reasoning
There were serious errors in the jury instruction defining the justification of self defense
1) the jury was instructed to consider only the circumstances that occurred at or immediately
before the killing

but this Is not washingtons law of self sefense. Justification of SD is to be evaluated in light of all the
facts and circumstances known to the defendant including those substantially before the killing. The
vital question is the reasonableness of the defendants apprehension of danger. This is from the
defendants POV- and prior experiences should come into play

2) the instructions were filled with masculine pronouns- ans as such not only an objective standard but
masculine standard. Here the incident was between a man and woman. The insrtcutions say that the D
cannot respond with deadly weapon if his assailant threatened him with naked hands. However woman
in society have not required skills to protect themselves without a deadly weapon. The jury instruction
require the jury to compare Ms wanrows pov with that of the reasonable man finding himself in the
same situation. But this violates her right to equal protection by the law in this situation. The
instructions are improper because they set forth that the objective standard as written suggest that that
her conduct should be judged against the reasonable mans in the same situation .

Notes
One is justified in using deadly force in SD only in response to a threat of death or serious bodily harm;
only if the danger is imminent or imediatley forthcoming, and in some states and some locations, only if
there is no available path of safe reatreat.

Not allowing deadly response to non deadly harm may be adversely affect women

(iii) Battered Women, Battered Woman Syndrome and Beyond

STATE v. NORMAN
Court of Appeals of North Carolina, 1988.
Facts: Defendant shot husband in the head while sleeping. They had been married for 25 years.
Throughout which husband beat her, made her prostitute herself and treated her like an animal, making her
sleep on the floor and eat dog food. He also threatened to kill her many times. The night before the
defendant shot her husband, she had called the police because he had beaten her all day, and could not take
it anymore, however when told to take out a warrant she replied that if she did so her husband would kill
her. When emergency personelle came to bring her to the hospital husband was saying you deserve it ill
give you more pills let the bitch die etc.
At hospital therapist said she was depressed angry and helpless and went to Gmas house. Next day returned
home, abuse started again, and death threats. She went to mothers house and got a gun and shot him in his
sleep.
She explained she could not leave Norman because every time she tried she would be found and abused.
And she was scared he would kill her if she got a warrant or locked him away.
Dr Tyson and Dr Roberts both concluded that she suffered from abused spouse syndrome- she believed that
husband had complete ontrol and she was living purley to survive. She had the belief in the invulnerability
in her husband and believed that escape was impossible- Husband had engaged her in the same
dehumanizing process which was done to POW in WW2
When asked if it appeared to D reasonably necessary to kill her husband- they said yes, she had no choice
to protect herself and her family
Issue If a consistently abusive spouse is passive at the moment a bettered defendant spouse killes him, is
the defendant still entitled to claim of self defense
Holding: New trial
Analysis:
Subjective standard: first requirement for SD is that it appear to the defendant and the defendant believe it
necessary to kill the deceased in order to save herself from death or great bodily harm-
What did she perceive at time of the shooting
She did belive he would kill her and she also belived that she couldn’t run away-all in evidence
Both experts also testified that D throught that it was necessary to kill husband or he would kill her or cause
serious bodily harm

Objective standard: requirement 2 - That the defendants belief be reasonable – is measured by the
objective standard of a person of ordinary firmness under the same circumstances- That the Ds belief was
reasonable under the circumstances in which she found herself
Jury could find that this was reasonable based on evidence
1) battered spouse syndrome- repeat violence -causes the inability of a defendant to withdraw from a
hostile situation and the vulnerability of a defendant to the victims factors considered in
determining the reasonableness of the defendants belief in the necessity to kill the victim.
2) The violent phase of battered spouse syndrome- is the time that the defendant should protect
herself by SD- but at that moment the abusing spouse attacks and the battered spouse is the least
able to counter bc she is immobilized by fear if not physically restrained

So court finds that with battered spouse there can be circumstances in which the killing of passive
victim does not preclude SD. Do not believe must wait till deadly attack comes, bc such a standard
would ignore the realities of the situation.
Based on evidence she took the first opportunity to defend herself against continuous reighn
of terror in momentary hiatus, and the defendants act was not without provocation required for SD

Also evidence points to the fact that she did not use more force than necessary
State v. Norman
1989.
Rule: defendant must have reasonable fear of imminent death or great bodily harm before entitled to
jury instruction of self defense
Issue: Was there sufficient evidence such that the trail court was required to instruct self defense
Held, no¸ There must be a showing of killing due to reasonable fear of imminent bodily harm or death.
This is because only by showing that the killing was a response to fear of imminent bodily harm or death
can justification for homicide be rooted in necessity. A threat is imminent when it cannot be avoided by
calling for help and must be instantly met. Evidence shows that she could have stopped ongoing abuse and
that she had time and opportunity to do so. The testimony showed that she was generally threatened and
thought he would kill her at some point. Not that judy killed in the belief that Norman presented a threat of
death or bodily harm. By allowing her to claim self defense then it would allow all wives who are abused
by their husbands to justify killing on the speculation of the probability of future assaults by their husbands.
Dissent- Fabricated evidence is a general problem not just by wives who use it to justify killing husbands.
Imminence in this case must be viewed from the defendants pov, the question is not whether the threat was
in fact imminent but whether judy bellies that the impending nature of the threat given the circumstances
was reasonable. For battered wife there is no escape no sense of safteyt hen the next attack which could be
the fatal one is imminent. The evidence for last three days could show that judy reasonably perceived a
threat to her life as imminent even when her husband slept.

Convicted of voluntary manslaughter

Notes:
if harm is not imminent then no self defense.

Battered woman syndrome: cycle becomes more intense and more violent, and as such women believe that
they cannot control and become passively submissive
She learns that if she leaves reaches out for help attempts to defend herself then there is more violence

She also becomes able to sense escalating frequency and intensity of violence and becomes more sensitive
to the abusers behavior- knowing when an attack will ensue

The trend in courts is to permit BWS testimony in cases of confrontational homicides (D responds to
imminent threat) . But courts are divided on how to deal with nonconfrontational cases, such as in Norman.
Some courts do not permit self defense instruction in such cases, so the BWS evidence is not relevant,
others allow self defense in non confrontational cases and as such allow BWs testimony

Stephen J. Morse – The “New Syndrome Excuse Syndrome”

BWS evidence may be relevancy in a number of ways to an objectively reasonable assessment of the need
to use deadly force.

Jury may not believe it is reasonable to use force, I e she could have escaped, wasn’t imminent etc.

However by allowing syndrome evidence it will support the honesty and reasonableness of the Ds belief
and the proportionality of her defensive force bc it will show why she would stay with the abuser.

Also, BWS evidence is important bc, D has an expeccially acute understanding of the cuse that presage
imminent violence from the abuser, so something that looks non threatening to the ordinary person may in
fact be threatening and as such the battered defendant may know quite reasonably that the look or gesture
from the abuser is always followed by violence.

But some want women in Battered wife situation want to use justification even when the defensive force is
objectively unreasonable- they want to ask what a reasonable syndrome sufferer would have believed and
done, if a reasonable syndrome sufferer would have behaved as this syndrome sufferer actually did then
that conduct is reasonable and should be justified rather than excused--EXPANSIONIST

Can a sufferers honest but unreasonable belief in the need to use deadly force justify rather than excuse the
killing when there is no immediate danger and there are alternatives available for safeguard?

Expansionists believe that there are no alternative safeguards, and so a pre emptive strike is justifiable?
If there are unusual circumstances that – if death or bodily harm in the relatively near future is a virtual
certainty and the future attack can not be adequately defendant against when it is imminent and if there is
no reasonable alternatives traditional self defense doctrine ought to justify the pre emptive strike.

But usually not these circumstances, and there are alternatives etc. But
Expansionists argue that syndrome produces helplessness etc. and such the sufferer believes erroneously
that there is no way out. Or for lack of volition bc of depression they do not seek assistance.

If this is the case then the defendant is claiming an excuse based on impaired rationality or volition. If there
were reasonable alternatives available, killing the batterer on occasion was not the right thing to do, and
should not be justified.--> in such cases the syndrome suffering defendant has an affirmative defense but
must be an excuse.

3. Defense of Others
PEOPLE v. KURR
Court of Appeals of Michigan, 2002.
Facts: D stabbed her boyfriend and killed him she appeals from conviction of voluntary manslaughter.
Pena, the boyfriend punched her in the stomach 2 times, and after warning him she was pregnant D stabbed
him after he lunged a third time. Evidence was presented that showed she was pregnant and that boyfriend
was abusive at trial court. She wanted jury instruction on defense of others doctrine but was not granted
because the fetus was not viable
Issue: should a non viable fetus be considered an other for purposes of the defense of others claim
Holding: remand for new trail
Reasoning- The defense of others claim extends to actions to protect even a non viable fetus from assault
against the mother. Case law in Michigan allows s a person to use deadly force in defense of another.
Based on Fetal Protection act which punishes individuals who harm or kill embryos or fetuses under certain
circumstances- set forth penalties for harming a fetus or embryo during an intentional assault against a
pregnant woman…. Etc.
The plain language of this Acts shows that fetus and even embryos are worthy of protection. Also the
punishment of violation of this act is punishable up to life sentence.

Legislator did not distinguish btwn viable and non viable fetus, and even included embryos- bc this act
reflects a public policy to protect even an embryo form unlawful assault or negligent conduct court
concluded that the defense of others concept expand to protection of nonviable fetus from an assault against
the mother- but limited to only an unlawful assault against the mother

However abortion is lawful so no defense of others claim applies there

So jury could reject self defense theory but accept defense of others theory. Because not allowed to have
the defense of others jury instruction she was deprived of her due process rights and new trial is warranted.

Notes: in general a person is justified in using force to protect a 3rd party from unlawful use of force by an
aggressor. The interveners right to use force in such circumstances parallels the 3rd partys right of self
defense.- she may use force when, and to the extent that, the 3rd party would apparently be justified in using
force to protect himself

However in alter ego jurisdiction-the right to defend another is no greater than the right of the third person
to defend himself. The person who comes to the aid of another is placed in the shoes of the person she is
assisting.

This is no longer the majority rule howver, most states say that if A acts on the basis of reasonable belief ,
the defense applies to A even if C(the person A is assisting) has no right of self defense

4. Defense of Property/Habitation and Law Enforcement Defenses

Spring Gun Case
PEOPLE v. CEBALLOS
Supreme Court of California, 1974.
Facts: Cabellos (d) noted that tools had been stolen from his garage. He mounted a .22 pistol to shoot when
doors were open. Stephen 16 and Robert 15 came into cabellos house while away unarmed. Stephen
removed lock and was shot in face when he opened the door. He testidied that he did not know if he was
going to steal anything but wanted to look.Cabellos wanted to protect what he had and that is why he set up
the gun. Jury found him guilty of assault with a deadly weapon. He appealed saying that under penal code
197 had he been present he would have been justified in shooting Stephen.
Issue: is the use of a deadly mechanical device justified to protect against a non violent burglary
Holding: Judgment affirmed. no, courts have held that a person may be held criminally liable for injury or
death resulting from a deadly mechanical devise set on his premises. However there is an exception to this
rule if the person would have been justified in taking life or inflicting injury with their bare hands.

But use of deadly mechanical device imperils children officers fireman etc, when actor is present he meay
realize that deadly force is not necessary, however mech device are without mercy or discretion.

Even if the rule justifying use of deadly mech devices was applied here , D would still not be justified in
shooting Stephen

A killing in defense of property is justifies against one who intends to commit a felony. The felony
intended to be committed must be a forcible and atrocious crime such as murder mayhem rape and robbery.
Burglary is sometimes included as a forcible and atrocious crime, but only where the burglary crates a
reasonable fear of great bodily harm
The Burglary in this vase did not threaten death or serious bodily harm.

D contends that another subsection of the Penal code 197 justifies the homicide since he committed the
homicide while attempting to apprehend a felon.
However his testimony indicated that the purpose of killing was not to apprehend a felon, but to prevent a
burglary. Under common law extreme force could be used to prevent dispossession of a dwelling house or
against the burning of a dwelling. Here we are not concerned with dispossession or burning, but a burglary
that did not justify the use of deadly force.

Court concludes as a matter of law that the exception to the rule of liability for injures inflicted by a deadly
mechanical device does not apply here.

At common law – could you use a spring gun under any circumstances – if you would have been allowed to
use the deadly physical force had you been there in person and you used a spring gun then it is okay ---
you had to be able to use the force had you been physically present

Court hold 2 things in Ceballos:

As a matter of law you can not use spring guns
But the court says even if it would be okay otherwise as a matter of law, in this situation it is not
acceptable to use them
The only time you can use a spring gun (deadly physical force) when you have reason to believe
someone is going to enter your house and do something serious to you inside
Under MPC you can not use a Spring Gun – 3.06 (5)

Can not use force against a police officer even for unlawful arrests --- under MPC you can not resist arrest
even if it is unlawful but you can resist if you think the officer is going to use force

Notes
The general but not universal rule is that a person may not use deadly force to protect property

Common habitation defense: authorizes the use of deadly force to prevent an uninvited entry into a home if
there exists a reasonable and factual grounds to belive that unless so used, a felony would be committed
inside

Usually used to prevent intrusion into his castle- but what if already inside

Crime prevention- police or person may use deadly force if necessary to prevent the comsiion of any felony
against the defendant or third party. In most states limit the application of crime prevention defense to
forcible or atrocious felonies. Deadly force is never permitted to prevent a misdemeanor.

Once a felony is commited the defense of crime prevention no longer applies. Howver a related law
enforcement defense- one that justifies the use of force in order to effectuate an arrest or to prevent the
escape of an arrestee- may apply.

TENNESSE v. GARNER
Supreme Court of the US, 1985.

5. Necessity (“Choice of Evils”)

(a) General Principles
NELSON v. STATE
Supreme Court of Alaska, 1979.
Necessity – you can break the law in order to avoid a greater evil, the good units you generate cancel out
the bad units --- break the law in order to avoid a greater harm (justification)
Exists in MPC and about half the states have it
MPC differs from common law which tried to limit it to natural forces, lots of common law cases
did not apply it to homicide
 MPC – section 3.02 does not restrict it to natural forces, MPC says can apply to homicide
Need a clear danger, had to be reasonable what you would do would be effective, no
other legal way to avert it, harm has to be a lot worse than what you are doing, and that
the legislature has not addressed this issue

American Law Institute, Model Penal Code and Commentaries, Comment to 3.02

(b) Civil Disobedience

UNITED STATES v. SCHOON
United States Court of Appeals, Ninth Circuit, 1991.

© Defense to Murder?
THE QUEEN v. DUDLEY AND STEPHENS
Queen’s Bench Division, 1884.

(D) Principles of Excuse

What is the point of excuse? Moral Blame – reason why we have excuses is because there are a series of
situations in which our moral character
In situations of duress I have done something wrong but there is an issue about my character, do need feel
same condemning this person in the same way that a person in the circumstances in which they acted cuts
against a moral condonation of the action
1) Why do we excuse wrongdoers?
Sanford H. Kadish – Excusing Crime

Joshua Dressler – Understanding Criminal Law

17.03 Underlying Theories of “Excuse”
(A) Searching for an Explanatory Theory
C) Causation Theory
(D) Character Theory
(E) “Free Choice” (or Personhood) Theory

2) Duress
(a) General Principles
UNITED STATES v. CONTENTO-PACHON
United States Court of Appeals, Ninth Circuit, 1984.
What issue is being appealed? – District court excluded evidence on duress
Defendant did not meet the burden of production to put on the defense and was the not given the
burden of persuasion – he has to show enough that a reasonable jury could conclude either way
12B6 motion – party asks court to dismiss claim because fails to state a claim, not triable issue of
fact
Question trier of fact asks is there enough evidence to create a triable issue of fact
Question on appeal is a matter of law did district judge mess up by not allowing it to go to jury?
This guy is told we want you to carry drugs by swallowing them in balloons
He tried to raise duress and necessity defense – duress is allowed to proceed but necessity is not
Necessity not allowed to proceed
This is not a situation where he is promoting general welfare by bringing drugs into the country
Court gives 2 reasons:
1) Necessity applies to natural forces and not to human forces (most courts)
2) Generally a situation where someone does something to promote general welfare
Duress – this guy did something not promoting general welfare but we understand why he did it
3 elements of duress defense:
1) an immediate threat of death or serious bodily injury
2) a well-grounded fear that the threat will be carried out
3) no reasonable opportunity to escape the threatened harm
At common law had to be you or immediate family member and was not allowed for homicide
defense and you could not put yourself in a situation which caused you to do this in the first place
 At common law had to be blameless, did not apply to homicide, and threat of death or
serious bodily injury against me or my immediate family
If you meet requirements you can be acquitted but the cause of the duress is still criminal liable –
person who treats you as instrumentality will be guilty of crime in many cases

Necessity in MPC – 3.02: Choice of Evils – very hard to let a judge let you make a necessity claim
Does not require that it be a natural force
Duress – MPC 2.09
How does it differ from the common law?
A person of reasonable firmness is the standard
Does not involve death or serious bodily injury – just unlawful force against this person
or person of another --- not so much focused on the NATURE OF THREAT, whereas it is
more focused on the force and is this something that a person of reasonable firmness
could resist – get away from idea of inherent nature of threat and look at the person
being threatened
Imminence requirement is gone – “threat to use or prior use” --- at common law it had
to be a present time thing and the MPC will allow you to run the defense if you have been
a victim of prior force by somebody and this was worded to deal with BWS
It does not have to be a member of your family
Allows you to use it in cases of homicide (common law did not allow this)
Restricted to a non natural force
Person of reasonable firmness? Objective or subjective? Every single standard you
encounter however objective anyone says it is, it is never really objective, the question is
how subjective is it? It is partly subjective in that you would look at the size, general
age, health, etc --- partly objective in that we generally do not take your particular
temperament into account (ie if you are particularly anxious person)
Battered Woman – common law presumption that a woman who acted in the presence of her
husband was coerced – now saying the only time a woman can use duress defense against
husband as if it would qualify under this section --- under common law doctrine threat of force is
not going to be immediate --- general problem is can woman get out of these situations? Creates
web of vulnerability and helplessness, dependent on the man, learned helplessness (in a situation
where you can not escape a situation and eventually you will learn to accept it)
Problem in MPC there has been a number of cases that reasonable firmness does not
include a typical woman in a battered woman syndrome

General arguments against implying necessity with a Katrina case where people steal goods
Legal alternative available to get relief
Could argue that the purpose of the necessity defense is you are doing something which promotes
social welfare and does stealing from a store promote social welfare
Legislature does not make exception for theft in circumstances where someone has to engage in
theft to survive – they have already done the balancing and made this decision

Notes:
Duress and mens rea
Hibbert v. The Queen

Duress as a justification defense

Model Penal Code – 2.09

(b) Necessity Versus Duress

PEOPLE v. UNGER
Supreme Court of Illinois, 1977.
Prison cases raise the issue of necessity v. duress – most courts not recognize the right of someone to
escape intolerable situations and escape a penal situation, what they split on is whether you use duress or
necessity in that situation
 Jurisdictions that restrict necessity to natural causes you can not use prison-escape situation
Jurisdictions in which necessity can be used in human caused situations there is a dispute
Generally a duress claim arises when you threaten me and want me to commit a particular act – in prison
situation I escape because I am being subjected to intolerable situations, you are not telling me that if you
don’t commit another crime I am going to exercise unlawful force against you, but I am engaging in a
criminal act to try to get away from you
Reasons why it matters if duress or necessity?
If something is an excuse it send a different message than justification – if it is justification then
we look at it as an alright thing to do and if its duress then we say you did something wrong
If excuse there will be different implications – if it is duress and I am escaping, if I am in a
jurisdiction that duress is argument it would be perfectly fine for a guard to stop me
If I am justified in breaking out then the guard technically does not have a right to stop me
because I am not doing anything wrong and I can use some appropriate force to resist
If best claim is duress and you help me you have committed a crime whereas if it is a justification
claim then you did nothing wrong because I am justified

MPC – Under MPC you can use either justification or excuse --- MPC says in some situations justification
may be appropriate defense and in some duress might be the right defense and in some choice of evils
might be the right defense

c) Defense to Murder?
PEOPLE v. ANDERSON
Supreme Court of California, 2002.
At common law you could not use murder
If you are going to accept duress as a good idea, there is no reason really not to accept it under murder

Hypothetical – driving down the road and person in car with me puts gun to my head and says drive, see a
body in road, guy says drive over that body---can claim duress?
MPC you can claim duress but not under common law because not for homicide
If breaks give out?
Under MPC there must be unlawful force
Can not use duress
Can you use necessity? Choice of evils --- can’t use this either
Choice of evils – you are breaking a law for a greater good

(3) Intoxication
Assault with intent to rape – specific intent crime, stopped by police before engaged in the rape, I
was drunk and thought she consented
Intoxication can negate the specific intent
Common law rule is voluntary intoxication – if you were stopped before the rape you can
raise the defense because you do not have the specific intent required
MPC – 2.08 – if it negatives an element of a defense
When recklessness is unaware of a risk if he would have been if he was sober
such unawareness is immaterial – (if I was sober I would not have driven 80
mph, I was unaware because I was drunk)
If you are drunk and you enter a house that you think is your own and you are
wrong you would probably have affirmative defense to a burglary charge
because it negates your intent of burglary

COMMONWEALTH v. GRAVES
Supreme Court of Pennsylvania, 1975.

(4) Insanity (NOT TESTED ON THIS)

Incompetence – if person is not competence you cannot try them, very hard to do this
Must tell the court beforehand and judge has right to commit you for a period of time to see if you can raise
the insanity defense
Defendant has burden to raise it

CHAPTER 10: INCHOATE OFFENSES

Impose criminal liability on people when they do things when they are trying to do something else
Solicitation – situation in which I say to you I would like you to go and buy some heroin for me (you
haven’t said anything about whether you will or not), just communicated desire to purchase heroine for me
--- I want you to be the principle in the first degree and I will be an accessory to your activity
Classic – you are the principal of the first degree
The moment I have asked you to do it I have solicited you
Now you turn to me and say okay I will do that and now there is an agreement between two people to
engage in a criminal act --- depending on jurisdiction we might have a conspiracy
I pick you up and driving you to the place, at some point in time at a magic moment we now have an
attempt
In this situation, now that you have agreed, we have a conspiracy and nothing has still happened yet
Solicitation, Conspiracy, Attempt and still no drugs
Conspiracy – result after solicitation starts it
Attempt – generally come after conspiracies are formed
Ie – make a decision you want to commit a crime (can’t punish you for your initial thoughts
because we can’t read them yet) --- get in the car and start to drive and at this point I have taken
action and I am getting closer every second I am driving to get the drugs, and at some point in
time I have an attempt
The problem with attempts is the early you intervene in a situation like that the more problematic
it is because we are not 100 percent sure of what it is you are doing
Behavior is completely innocuous/ambiguous because you do not know what is going on in my
head and the earlier the government intervenes the easier it will be to be innocent
On the other hand the more you wait, the more it is you maximize the chances that something bad
is going to happen if you think I am involved in something bad
Constant tension between earlier intervene and longer you wait to intervene because it is more
dangerous

(A) Overview
American Law Institute – Model Penal Code and Commentaries, Comment to Article 5
Article 5 of MPC – deals with the crimes of attempt, solicitation, and conspiracy
They all deal with conduct that is designed to culminate in the commission of a substantive offense, but has
failed in the discrete case to do so or has not yet achieved its culmination because there is something that
the actor or another still must do
MPC gives a lot of judicial discretion in interpreting a substantial step toward the completed offense
McQuirter v. State

(B) Attempt
1) General Principles
Ira P. Robbins – Double Inchoate Crimes
Rex v. Scofield – established the premises that a criminal intent may make criminal an act that was
otherwise innocent in itself, and, conversely, that the completion of an act, criminal in itself, was not
necessary to constitute a crime (prior to Scofield the courts imposed attempt liability only for two
categories of offenses: attempted treason and attempts to subvert justice, such as subordination of perjury
and attempted bribery of the King’s officials
Rex v. Higgins – the court ruled that it could indict a person for any act or attempt that tended to the
prejudice of the community (extended Scofield decision)
Most modern American Jurisdictions, the rule of merger operates to the extent that a defendant cannot be
convicted of both a completed offense and an attempt to commit it
Purpose: Main principal purpose is not deterrence, instead the primary function of the crime of attempt is
to provide a basis for the law-enforcement officers to intervene before an individual can commit a
completed offense
Criminal attempts are of two varieties – incomplete and complete
Role of Harm: If one views deterrence as the proper function of the criminal law, a harm requirement is
appropriate – to the extent that the criminal law punished the nonharmful conduct, it weakens the stigma
and deterrent effect of criminal conviction for harmful conduct. If one believes that the role of the criminal
law is to provide retribution, a harm requirement is also proper, in the absence of harm there is nothing for
which to seek retribution.

Andrew Ashworth – Criminal Attempts and the role of resulting harm under the Code, and in the
Common Law
Retributivist – the offender deserves punishment because he has chosen to disturb this order in a prohibited
way. The punishment is necessary so as to restore, at least symbolically, that order
Harm-based: This general theory of “just deserts” is not sufficiently specific to be applied to the
incomplete attempter – a “herm based” form of the retibutivism would link the justification for the
punishment to the culpable causing of harm; both the justification for and the measure of
punishment derive from the culpable causing of a prohibited harm
Intent based: An intent based form would start with the proposition that the technique of the
criminal law is to impose on individuals in society various duties of self-restraint in order to
provide a basic security of person, property, amenity, and so on. – the purpose of criminal
punishment then is to counter-balance, at least symbolically, a voluntary breaking of the rules –
the emphasis in criminal liability should be upon what D was trying to do, intended to do and
believed he was doing, rather than upon the actual consequences of his conduct
Applying the intent principle, one must ask whether a person who takes substantial steps
towards the commission of the substantive offense, with intent to commit that offense,
has already manifested sufficient non-self-restraint so as to deserve punishment (subject
to debate about the stage required as the actus reus of an attempt)
In a complete attempt D has done everything planned, and the non-occurrence of the
consequence is unexpected and often outside his control – it can therefore be maintained
that there is no relevant moral difference, for the purposes of punishment as distinct from
compensation, between D’s culpability and that of the substantive offender whose
attempt succeeded
Consequentiality justifications
Little difficulty in supporting the conviction for the incomplete attempter --- assuming that D has
done a sufficient preliminary act and that it can be established that he intended to commit the
substantive offense, this may be accepted as sufficient evidence of a dangerous disposition, and it
supplies a good reason for intervening so as to prevent the consummation of that attempt
Since punishment involves the infliction of unpleasant consequences, it must be clear that any
penalty will have a preventive (or other beneficial) effect which si not outweighed by any negative
consequences it may have
The complete attempter has unambiguously shown his willingness to try to bring about a
proscribed consequence. The fact that chance interposed itself on this occasion and the result
failed to follow does not reduce the dangerousness of this individual to any significant extent

Objectivism – “the pattern of manifest criminality” is that the offense be objectively discernible at the time
that it occurs – the actor’s mental state does not arise as a legal issue unless and until the wrongfulness of
her conduct is demonstrated by her actions – focuses on the actor’s conduct
Subjectivism – focuses on the actor’s intentions, rather than on externalities – “the act of execution is
important so far as it verifies the firmness of the intent”

Subjectivist – some conformation that looking for something that conforms that this is the criminal
purpose, but that means you hypothesis there is a criminal purpose, and the problem is if I think you are
doing something wrong there is little you can do that won’t confirm my suspicion that you have a criminal
purpose
In theory you are dangerous and the earlier we stop you the better it is and you are a dangerous
person and once you inform the intent and you start doing it you are dangerous and we have to do
something

Attempts have Merger – if you complete the crime can you be prosecuted for purchasing the narcotics and
attempting to purchase the narcotics – NO (conspiracy has no merger at common law, solicitation does)
 2) Grading Criminal Attempts
American Law Institute, Model Penal Code and Commentaries, Comment to 5.05
Traditional rule – criminal attempts are graded and punished less severly than completed offenses
MPC 5.05 (1) – treats attempt, solicitation and conspiracy on a parity for purposes of sentence and by
determining the grade or degree of the inchoate crime by the gravity of the most serious offense that is its
object --- only when the object is a capital crime or a felony of the first degree does the Code deviate from
this solution, grading the inchoate offense in that case as a felony of the second degree

At common law – attempt is less serious and punished less seriously

MPC – treats attempt and crime the same unless it is a capital crime or a felony of the first degree
MPC treats attempts differently than common law, reflecting the subjectivist view that if you
attempt to do something you are every bit as dangerous as someone who succeeds in doing it and
you should be punished in the same way
Tends to be focused on looking only for enough to confirm the criminal purpose and then
punishing you as in if you had succeeded in committing the target offense

3) Mens Rea
Prong 1 – attempt to commit the actus reus (specific intent)
Prong 2 – intent to consummate the crime
You can have generally intent crimes, but if you are attempting to have a general intent crime you have to
have the specific intent to do that acts and intent to commit
Even though rape is a general attempt crime, you have to have a specific intent to do the crime
Murder if I kill you recklessly
If I miss is it attempted murder? No specific intent
PEOPLE v. GENTRY
Appellate Court of Illinois, First District, 1987.
Facts: Gentry (D) was convicted of attempted murder after spilling gasoline on his girlfriend during a fight
which then ignited as she passed the stove.
Issue: Is a finding of specific intent to kill a necessary element of the crime of attempted murder?
Black Letter Rule: Only the specific intent to kills satisfies the intent element of the crime of attempted
murder
Holding: Reversed and remanded for new trial.
Analysis: Gentry contends that the inclusion of all the alternative states of mind in the definitional murder
instruction was erroneous because the crime of attempted murder requires a showing of specific intent to
kill.
A trial court instructing a jury on the crime must make it clear that specific intent to kill is a necessary
element of the crime of attempted murder, and that intent to do bodily harm, or knowledge that the
consequences of Gentry’s act may result in death or great bodily harm, is not enough.
The state would read the attempt instruction as requiring a showing of any of the alternative mental states
sufficient for a conviction of murder – state makes no distinction between the mental state required to prove
murder and the mental state required to prove attempted murder
Relied on the Kraft case

In order for me to attempt to murder I have got to have the specific intent to purposely take a life, that is
not to say if I succeed in taking life the only time I can be held liable for murder is if I purposely did it
MPC 5.01
a) Conduct crimes – does not matter if I am right or wrong of the attendant circumstances
a. Try to buy drugs from someone who does not have drugs, you think they can sell you
drugs but they can’t
b. Get in car and drive 100mph down a street and engage in reckless endangerment
because I think there are people there but there is not anyone there
b) Result Crimes – (if I put a bomb on plane and kill you but don’t want to kill everyone else but
it is murder because I know with substantial certainty those people will die) – if I only wanna
kill you with the bomb, if I succeed multiple counts of murder, what if bomb does not go off ---
 at common law disputed whether this is attempted murder with respect to everyone else or
not---MPC takes subjectivist approach and if you plant the bomb and you know it is going to
kill a whole bunch of other people that is attempted murder
c) Deals with the actus reus and a substantial step

Notes:
Criminal attempts involve 2 intents (in common law)
1) Intentionally commit the act that constitutes the actus reus of an attempt
2) The actor must perform the acts with specific intent to commit the substantive crime
Attempt is usually punished less severely, and never more severely, than the target offense, why does the
common law require a more culpable state of mind for an attempted murder than for the completed crime?
MPC 5.01
1) Does case involved a complete or incomplete attempt
2) If the case involves a complete attempt, is the target offense a result crime (murder) or a
conduct crime (DUI)
1(a) – complete conduct crimes
1(b) – complete result crimes
1 c) – incomplete (must be read in conjunction with subsection 2, which elaborates on the meaning of
substantial step

BRUCE v. STATE
Court of Appeals of Maryland, 1989.
Facts: Bruce (D) was convicted of attempted felony murder, as well as other charges, for shooting a
storekeeper he was attempting to rob at gunpoint.
Issue: Is attempted felony murder a crime in Maryland?
Black Letter Rule: Attempted felony murder is not crime in Maryland.
Holding: Reversed.
Analysis: To secure a conviction for first degree murder under the felony murder doctrine, the State is
required to prove a specific intent to commit the underlying felony and that death occurred in the
perpetration or attempt to perpetrate the felony – it is not necessary to prove a specific intent to kill or to
demonstrate the existence of willfulness ,deliberation, or premeditation
Under Maryland law, a criminal attempt consists of a specific intent to commit the offense couples with
some overt act in furtherance of the intent which goes beyond mere preparation
Because a conviction for felony murder requires no specific intent to kill, it follows that because a criminal
attempt if a specific intent crime, attempted felony murder is not a crime in Maryland.
Relied on Cox v. State – holding that there is an offense of attempted voluntary manslaughter, but no
offense of attempted involuntary manslaughter. The reasoning behind the ruling is that the intent to kill is
present in the former, but not in the latter case. The outcome in this case follows from that rationale,
because the court recognizes that an attempt crime required specific intent

Attempted felony murder – can not have attempted felony murder (there are a few states that do have it)
Attempted Manslaughter? – can have attempted voluntary manslaughter but not involuntary – can I
attempt to kill you when I am acting negligently or recklessly? No because I kill you in the course of acting
stupidly

Simmons v. State – accused attempted to have sexual intercourse with an underage female, mistakenly
believing she was old enough to consent. Is accused guilty of attempted statutory rape?
Statutory rape is strict liability
MPC – 5.01 1c – Yes you can be guilty of attempted statutory rape under the MPC

4) Actus Reus
a) General Principles
UNITED STATES v. MANDUJANO
United States Court of Appeals, Fifth Circuit, 1974.
Facts: The court clarifies the definition of attempt as used in Section 846 of Title 21.
Issue: Is preparation enough to constitute an attempt under Section 846 of Title 21?
Black Letter Rule: For the crime of attempt, preparation alone is not enough, there must be some
appreciable fragment of the crime committed.
Analysis: It seems to be well settled that mere preparation is not sufficient to constitute an attempt to
commit a crime, however it is also equally clear that the semantical distinction between preparation and
attempt is one incapable of being formulated in a hard and fast rule
What might in one factual situation, constitute preparation, may not under different facts
People v. Buffum test: “Preparation alone is not enough, there must be some appreciable fragment of the
crime committed, it must be such progress that it will be consummated unless interrupted by circumstances
independent of the will of the attempter, and the act must not be equivocal of nature.

Physical proximity test – the overt act required for an attempt must be proximate to the completed crime, or
directly tending toward the completion of the crime, or must amount to the commencement of the
consummation.

Dangerous Proximity doctrine – (Holmes) the greater gravity and probability of the offense, and the nearer
the act to the crime, the stronger is the case for calling the act an attempt

Indispensable element test – a variation of the proximity tests which emphasizes and indispensable aspect
of the criminal endeavor over which the actors has not yet acquired control.

Probable desistance test – the conduct contitutes an attempt if, in the ordinary and natural course of events,
without interruption from an outside source, it will result in the crime intended.

Abnormal step approach – an attempt is a step toward crime which goes beyond the point where the normal
citizen would think better of his conduct and desist

The res ipsa loquitur or unequivocally test – an attempt is committed when the actor’s conduct manifests an
intent to commit a crime.

Judge Learned Hand test – whether conduct still remains in the zone of mere preparation, or if it has passed
over to constitute an attempt. The test is satisfied if the actor has done all that it is within his power to do,
but has been prevented by outside intervention in short, he has passed beyond any locus poenitentiae

United States v. Oviedo – objective acts of the defendant evidence commitment to the criminal venture and
corroborate the men’s rea --- to the extend that this requirement is preserved it prevents the conviction of
persons engaged in innocent acts on the basis of men’s rea proved through speculative inferences,
unreliable forms of testimony, and past criminal conduct

Stoke v. State – when the intent to commit crime, or, to put it more accurately, when the only proof is that
it is the declared intention of a person to commit a crime merely, with no act done in furtherance of the
intent, however clearly may be proved this intention, it does not amount to an attempt, and it cannot be
punished as such. But whenever the design of a person to commit crime is clearly shown, slight acts done
in furtherance of this design will constitute an attempt

There are a whole bunch of test which have been used at the common law and the common law as a
general matter focuses on what remains to be done
Last act is objectivist way – stupid because you wait too long
Physical Proximity – close to the committing the crime
All of these are meaningless because they are too objective, wanted the behavior to be relatively
unequivocal
The MPC – gets into this idea of substantial step – rather focusing on what remains to be done, it focuses
on what steps the actor is taking (subjective) – looking for conformation of a criminal purpose
Substantial step

An Initial Effort at drawing the preparation-perpetration line

Attempt is not just suspicious behavior – you have done something for what we can punish you
Liability for an attempt which is a crime
Are you talking about common law or the MPC
Common Law – focus on what remains to be done (unifies the common law notion of the acuts reus of
attempt) --- beyond that all the tests point in different directions
Dangerous Proximity is the predominant test – danger of completion is real
Is it a common law test and which one is it
Or is it MPC, then is it a substantial step? Then what is a substantial step
Strongly corrobative of criminal purpose
Tension of intervening too early or waiting too long

b) Distinguishing Preparation from perpetration: The tests at work

COMMONWELATH v. PEASLEE
Supreme Judicial Court of Massachusetts, 1901.
Facts: Peaslee (D) concocted a plan to burn a building an all its contents, but he changed his mind before
the plan was accomplished.
Issue: Do Peaslee’s acts come near enough to the accomplishment of the substantive offense to be
punishable?
Black Letter Rule: Collection and preparation of materials in a room for the purpose of setting fire to
them, accompanied with a solicitation of another to set the fire, is near enough to the accomplishment of
the substantive offense to be punishable.
Holding: In favor of Peaslee
Analysis: The most common types of an attempt are either an act which is intended to bring about the
substantive crime, and which sets in motion natural forces that would bring it about in the expected course
of events, but for the unforeseen interruption, as, in this case, if the candle had been set in its place and
lighted, but had been put out by police, or an act which is intended to bring about the substantive crime,
wand would bring it about but for a mistake of judgment in a matter of estimate or experiment, as when a
pistol is fired at a man, but misses, or when one tries to pick a pocket which turns out to be empty.
In this case, which failed to allege the solicitation of the employee to set the fire, a mere collection and
preparation of material in a room would be too remote. If Peaslee intended to rely upon his own hands to
the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to
have had this intent at a time and place where he was able to carry it out. On the other hand, if the offense
is to be made out by showing a preparation of the room and a solicitation of someone else to set the fire,
which solicitation, if successful would have been Peaslee’s last act, the solicitation must be alleged as one
of the overt acts. If the indictment hd been properly drawn, we have no question that Peaslee might have
been convicted.
Dangerous proximity – test in which most prominent and most frequently used in common law
Holmes came up with this

PEOPLE v. RIZZO
Court of Appeals of NY, 1927.
Facts: Rizzo (D) and three others planned and looked for a man to rob a payroll from, but they were unable
to find him before being arrested.
Procedural History: Defendant convicted for prison sentence
Issue: Do the acts performed by Rizzo constitute the crime of an attempt to commit robbery in the first
degree?
Black Letter Rule: For an act to constitute an attempt it must come very near to the accomplishment of the
crime.
Holding: Reversed.
Analysis:
Past case law states that in order for an act to constitute an attempt it must come very near to the
accomplishment of the crime.
To constitute the crime of robbery the money must have been taken from Rao by means or force or
violence, or through fear. The crime of attempt to commit robbery was committed if Rizzo and the others
did an act tending to the commission of this robbery. Rao was not found, the men were still looking for
him when they were arrested. No attmpt to rob him could even be made until he came in sight. Rizzo and
the other men had planned to commit a crime and were looking around the city for an opportunity to
commit it, but the opportunity fortunately never came.

PEOPLE v. MILLER
Supreme Court of California, 1935.
Facts: Miller (D) was convicted of attempted murder for threatening to kill Jeans and then later
approaching him with a loaded riffle
Procedural History: Conviction of the defendant.
Issue: Did Miller commit acts in furtherance of his plan such that he is guilty of attempted murder?
Black Letter Rule: Whenever the design of a person to commit crime is clearly shown, slight acts done in
furtherance of this design will constitute an attempt.
Analysis:
The reason for requiring evidence of a direct act, however slight, toward consummation of the intended
crime, is that in the majority of cases, up to the time of the conduct of the defendant, consisting merely of
acts of preparation, has never ceased to be equivocal, and this is necessarily so, irrespective of his declared
intent. It is the quality of being equivocal that must be lacking before the act becomes one which may be
said to be a commencement of the commission of the crime, or an overt act, or before any fragment of the
crime itself has been committed, and this is so for the reason that, so long as the equivocal quality remains,
no one can say with certainty what the intent of the defendant is.
In this case, up to the moment the gun was taken from Miller, no one could say with certainty whether
Miller had come into the field to carry out his threat to kill Jeans or merely to demand his arrest by the
constable.

Res ipsa loquitur rule – may be viewed entirely as a matter of procedure, as a device to prevent liability
based solely on confessions and other representations of purpose because of the risks they raise when
considered with the other probative weaknesses incident to attempt liability
Whether the requirement of unequivocally is considered part of the substantive definition of
attempt or as a separate rule of evidence, it can be realistically administered only by means of a procedural
mechanism – by excluding from the jury, in whole or in part, the actor’s incriminating representations of
purpose – if problems of proof are the basis of the preparation-attempt distinction, then the resi ips
approach has some merit.

Unequivocally test – the actors conduct ceases to be equivocal

STATE v. REEVES
Supreme Court of Tennessee, 1996.
Facts: Reeves (D) and a friend devised and tried to carry out a plan to kill their homeroom teacher and
steal her car.
Procedural History: Affirmance of the juvenile court’s delinquency conviction and sentencing of the
defendants.
Issue: Does simply planning a crime and possessing materials required to commit such crime constitute a
substantial step toward the commission of the crime?
Black Letter Rule: When an actor possesses materials to be used in the commission of a crime, at or near
the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor
under the circumstances, the jury is entitled, but not required, to find that the actor has taken a substantial
step toward the commission of the crime if such action is strongly corroborative of the actor’s overall
purpose.
Holding: Affirmed.
Analysis:
Dupuy v. State – under common law the State was required to present legally sufficient evidence of : 1) an
intent to commit a specific crime, 2) an overt act toward the commission of that crime, and 3) a failure to
consummate the crime.
In Dupuy there was a sharp differentiation between mere preparation and overt act or the act itself,
which was characteristic of the pre-1989 attempt law.
Tennessee Statute in 1989:
a) A Person commits criminal attempt who, acting with the kind of culpability otherwise required
 for the offense:
1) Intentionally engages in action or causes a result that would constitute an offense if the
circumstances surrounding the conduct were as the person believes them to be
2) Acts with intent to cause a result that is an element of the offense, and believes the
conduct will cause the result without further conduct on the person’s part
3) Acts with intent to complete a course of action or cause a result that would constitute
the offense, under the circumstances surrounding the conduct as the person believe them
to be, and the conduct constitutes a substantial step toward the commission of the offense.
b) Conduct does not constitute a substantial step under subdivision (a) (3) unless the person’s
entire course of actions is corroborative of the intent to commit the offense
While we conceded that a strong argument an be made that the conviction conflicts with Dupuy because
Reeves did not place the poison in the cup, but simply brought it to the crime scene, we are also well aware
that the Dupuy approach to attempt law has been criticized.
1) Distinguishing between mere preparation and the act itself in a principled matter is a difficult
if not impossible task.
2) Directly on the primary objective of law – that of preventing inchoate crimes from becoming
full-blown ones. Failure to attach criminal responsibility to the actor until the actor is on the
brink of consummating the crime endangers the public and undermines the preventative goal
of attempt law.
Concurrence and Dissent: The entire course of action of these to girls was not strongly corroborative of
the intent to commit second-degree murder and the evidence was insufficient as a matter of law. Concurs
in the abandonment of the rule state in Dupuy, dissents from the conclusion of the majority in this case.

Notes:
Differences between MPC substantial step test and previous approaches:
1) This formulation shifts the emphasis from what remains to be done – the chief concern of the
proximity tests – to what the actor has already done
2) Although it is intended that the requirement of a substantial step will result in the imposition
of attempt liability only in those instance in which some firmness of criminal purpose is
shown, no finding is required as to whether the actor would probably have desisted prior to
completing the crime
3) The requirement of proving a substantial step generally will prove less of a hurdle for the
prosecution than the res ipsa approach, which requires that the actor’s conduct must itself
manifest the criminal purpose. The difference will be illustrated in connection with the
present section’s requirement of corroboration. Here, the two purpose to be served by the res
ipsa test are ,to a large extend, treated separately. Firmness of criminal purpose is intended to
be shown by requiring a substantial step, while problem of proof are dealt with by the
requirement of corroboration
United States v. Duran

c) Punishing pre-attempt conduct

UNITED STATES v. ALKHABAZ
United States Court of Appeals, 6th Circuit, 1997.
Facts: Alkhabaz (D) was arrested for posting fictional stories involving the abduction, rape, torture,
mutilation, and murder of women and young girls on the internet.
Procedural History: District court quashed defendant’s indictment.
Issue: Do fictional stories describing the torture, rape, and murder of women constitute “a communication
containing a threat” under 18 USC Sec 875 c?
Black Letter Rule: To constitute a communication containing a threat under Section 875 c, a
communication must be such that a reasonable person 1) would take the statement as a serious expression
of n intention to inflict bodily harm (the men’s rea) and 2) would perceive such expression as being
communicated to effect some change or achieve some goal through intimidation (the actus reus)
Holding: Affirmed.
Analysis: It is necessary to consider the nature of the threat. At their core, threats are tools that are
employed when one wishes to have some effect, or achieve some goal, through intimidation.
Although it may offend our sensibilities, a communication objectively indicating a serious expression of an
intention to inflict bodily harm cannot constitute a threat unless the communication also is conveyed for the
purpose of furthering some goal through the use of intimidation.
The communications between Alkhabaz and Gonda do not constitute communications containing a threat
under Section 875.
Dissent: The words in Section 875 are simple, clear, concise, and unambiguous. The plain, expressed
statutory language commands only that the alleged communication must contain any threat to kidnap or
physically injure any person, made for any reason or no reason. It does not confine the scope of
criminalized communications to those directed to identified individuals and intended to effect some
particular change or goal.

(5) Special Defenses

a) Impossibility
At common law:
Legal Impossibility – is a defense
Pure – when an actor engages in conduct that he believes is criminal, but is not actually
prohibited by law (forgery example, rape example) – Principle of Legality – no crime, not
really “impossible”
Hybrid – actions would have been illegal due to mistake of fact, hard to distinguish
between factual and hybrid, call it hybrid because it is a factual mistake about the legal
status of an attendant circumstance (I go to pick your pocket and you have nothing in
your pocket, if the facts had been what I thought they were I would have succeeded but
its impossible because the facts are not what I thought they were)
Factual impossibility (not a defense) – exists when the defendant’s intended end constitutes a
crime but she fails to consummate it because of a factual circumstance unknown to her or beyond
her control
There is one sort of factual impossibility – inherent factual impossibility – you cannot accomplish
what you want – deals with situations in which peculiar people have views about causation which
the rest of us do not (Voodoo)
MPC – gotten rid of – 5.01
A and B attempt has been completed and in C the attempt has not been completed (incomplete)
A) and B) get rid of impossibility defenses on any completed conduct or result crime
Did not get ride of pure legal impossibility because it is principle of legality
C) actually require a substantial step
PEOPLE v. THOUSAND
Supreme Court of Michigan, 2001

Jaffee
Lady Eldon

b) Abandonment
COMMONWEALTH v. McCLOSKEY
Superior Court of Pennsylvania, 1975.
At common law it was not a defense – once you complete the attempt, actus reus and mens rea for attempt,
even though you abandon it is generally not a defense
As far as the attempt is concerned it is a completed attempt
Today recognized in some places
Voluntary, complete, indicate has been a real change of heart
If you have done the last act necessary or cause serious injury to the victim
MPC 5.01 (4)

C) Assault
American Law Institute, MODEL PENAL CODE and Commentaries, Comment to 211.1
Attempted assault? Assault is an attempted battery, so to talk about attempted assault is attempt to attempt
a battery
Assault originally required you had present ability to commit a battery but now has largely changed ---
making you think I am going to batter you (just putting you in fear of imminent battery) would constitute an
assault
MPC 211.1

D) Solicitation
The solicitation mergers into the substantive offense/crime and you become an accessory
The reason I am liable is now because I have become a accomplice
At common law - Invite or command or hire or encourage you to commit a felony or misdemeanor
regarding obstruction of justice or breach of peace
Before MPC specific solicitation statutes (ie for murder, prostitution)
Now many statues have general solicitation statutes (make it a crime to encourage to commit a felony or
serious misdemeanor) but is generally punished as a less serious offense
The actus reus requires actual communication, no act in furtherance of it is required, does not matter if the
other person agrees or not
The mens rea – specific intent crime at common law – you have to do the actus reus with the intent that
they do the crime – at common law I want you to be the principle in the first degree and I want to be the
principle before the fact (not an accessory – I share her liability) – I ask someone to get me a gun to kill
someone else, this is not solicitation at common law to kill the other person, it would be solicitation for her
to commit the crime to get an illegal gun
Lets assume – I ask you to pick someone’s pocket but I know it is empty but she does not know it is empty
(this would be an attempt), Am I guilty of solicitation NO because I know her pocket is empty, might be
soliciting her to attempt larceny
Can solicitation be an attempt?
Attempt punished more severely than solicitation (does not matter if they are punished the same)
3 ways to look at it on 808
MPC differs from common law in a number of ways
1) Applies to all crimes (not just felonies and misdemeanors)
2) recognizes a solicitation to commit an attempt (very subjectivist)
3) Not required for person to be principle in the first degree
4) immaterial that actor fails to communicate with person if his conduct was designed to commit a
solicitation
STATE v. MANN
Supreme Court of North Carolina, 1986.

STATE v. COTTON
Court of Appeals of New Mexico, 1990.

E) Conspiracy
Common Law Definition – an agreement between 2 or more parties to commit a crime or series of crimes
or to accomplish a legal act by an unlawful means
It is very inchoate – you do not need to engage in conduct that gets close to constitute an attempt
Why do we criminalize conspiracy?
1) We want to allow the police to interrupt criminal behavior
2) Dangerous – we have this idea that individuals engaging in bad behavior is bad but people
doing it in groups is even worse
Originally a misdemeanor at common law, but now are much more serious
How do we know? Look for particular behavior, it is very controversial because it is inchoate
and a serious offense and unlike solicitation/attempt there is not many things happening
Zacarias Moussaoui
Does it merge at common law? NO, does not make a lot of sense because once the act happens
why should you charge conspiracy if the whole point is to prevent it
MPC – 1.07(1)(B) – if there is stuff you have not done yet it merges, however, it depends on what the
conspiracy is and if there is stuff that remains to be done then it does not merge
IE we conspire to rob a series of stores – we rob the first store and get nailed, we are prosecuted
for robbing the first store and we can still be charged with conspiracy of robbing the other stores
Conspiracy overlaps with the complicity doctrine of accessorial responsibility - not all people that are
conspirators have accessorial responsibility
 If foreseeable consequence or falls within the scope of the conspiracy then the conspirators are
responsible for all the acts
It is a specific intent crime
1) Intent to combine with others (agree)
2) Intent to accomplish the illegal objective (achieve target of conspiracy)
ie – going to rob a bank with you but you are an under cover cop – both have agreed but have you
intended to achieve the crime? – the cop does not have the second intent
Issues: (mens rea)
1) Purposely or with knowledge – Can satisfy the men’s rea necessary for conspiracy by knowing
Cases go both ways on this issue – even in places in which purpose is required, purpose
is often inferred from knowledge – just because you are dealing with a situation where
state has to show it is purpose, that does not mean they are off the hook because all they
have is knowledge
2) Attendant Circumstances
If knowledge of the victim’s status is not required for the underlying offense (a matter of
legislative intent, to be determined), do we still require knowledge of the attendant
circumstance to be guilty of conspiracy to commit a battery upon a law enforcement
officer?
Split: Some courts hold that conspiracy cannot be proven unless the parties have
knowledge of the attendant circumstance, even if such knowledge is not required for the
underlying crime. A higher men’s rea must be proven. Other courts believe that the
polices relating to the underlying offense should apply to the conspiracy charge: if the
underlying offense is strict liability as to the attendant circumstance, the same rule
should apply to conspiracy to commit that offense
MPC 5.03
3) Corrupt Motive Doctrine – have to have a corrupt or wrongful motive (some cases say) –
ignorance of the law can help you out
Beyond the usual men’s rea requirements, parties to an alleged conspiracy are not guilty
unless they had a corrupt or wrongful motive for their planned actions
Conspiracy for murder – generally cannot be charged for this, you have to prove that you conspired to
have an intent to kill – can not have a specific intent to do something unintentional
MPC – X and Y conspire to burn down building and victim dies
Common law – no conspiracy for murder/manslaughter
MPC – same outcome because must have specific intent to bring about result and knowledge will
generally not be enough –
Is the corrupt motive doctrine in the MPC? Not in the MPC --- 2.04 (3) is the best analogous to
this
Actus Reus of conspiracy – need an agreement and it is often difficult to prove this, it is not necessary that
you have an express agreement and it is not even necessary that you have an agreement to do every part of
the conspiracy – it is very broad
Prove the actus reus by showing coordinated conduct
Over act?
Common law – no (some states required it)
Bilateral or Unilateral?
Common law rule - If it is a joint trial of 2 people who have conspired and one is acquitted the
other must be discharged
Now they are moving away from that
1 issue complicates this
1 conspiracy v. 8 conspiracies?
Drug situations are very tricky because so many people that are involved
Its 1 conspiracy if you know each other and ca draw a ring around it
A co-conspirator is liable for every offense of a co-conspirator that they committed
This matters, you do not want to be liable for everything else those people have done
Exception to the hearsay rule when conspiracy is involved – can be brought in
Joint Trial Issues
Can bring a prosecution for conspiracy wherever agreement was formed or where any acts take place in
furtherance of the conspiracy – prosecution has the option of bringing the case wherever the agreement
was entered into or any act in furtherance
Chain conspiracy?
Wheel conspiracy?
5.03(2) – Scope of Conspiracy – very broad
Trend is to broaden conspiracy liability and trend is away from the more limited conspiracies
Situation in you and I agree to rob 3 stores, is that 3 conspiracies or 1?
Braverman – depends on the circumstances
MPC – guilty of only one as long as it part of same agreement
1) General Principles
PEOPLE v. CARTER
Supreme Court of Michigan, 1982.

PINKERTON v. UNITED STATES

Supreme Court of US, 1946.

2) Mens Rea
PEOPLE v. SWAIN
Supreme Court of California, 1996.

PEOPLE v. LAURIA
California Court of Appeal, Second District, 1967.

3) Actus Reus
Abraham S. Goldstein – Conspiracy to Defraud the US

COMMONWEALTH v. AZIM
Superior Court of Pennsylvania, 1983.

COMMONWEALTH v. COOK
Appeals Court of MA, 1980.

4) Conspiracy: Bilateral or Unilateral?

PEOPLE v. FOSTER
Supreme Court of Illinois, 1983.

5) Scope of an Agreement: Party and Object Dimensions

American Law Institute, MODEL PENAL CODE and Commentaries, Comment to 5.03

KILGORE v. STATE
Supreme Court of Georgia, 1983.

BRAVERMAN v. US
Supreme Court of the US, 1942.

6) Defenses
IANELLI v. US
Supreme Court of the US, 1975.

GEBARDI v. US
Supreme Court of the US, 1932.

PEOPLE v. SCONCE
California Court of Appeal, Second District, 1991.
 CHAPTER 11: LIABILITY FOR THE CONDUCT OF ANOTHER
A. Accomplice Liability
Situations that do not fight the traditional paradigm of criminal responsibility, criminal responsibility is
personal liability – you get punished for what you do
Situations where X does the act with the men’s rea, but Y has responsibility for it as well
Not vicarious liability – situation where an employer is liable without any negligence
Accomplice is derivative liability – derive liability from your liability – your liability becomes my liability
2 primary contexts:
1) I assist you
2) Conspiracy
Principle in the first degree – person who commits the crime
Principle in second degree – ie lookout, aids and abets and is physically or constructively present
Accessory before the fact – ie provided a gun, aids/assists/abets and is not there
Accessory after the fact – actively covering up afterwards
These are old common law concepts
In order for someone to have accomplice liability you need men’s rea and actus rea
Mens Rea –(2 prong test) intent to assist or commit the crime, intent that the crime be committed
Is knowledge sufficient? No it is not enough – superficial in certain ways because purpose can
always be inferred from knowledge – knowledge itself is generally not enough
Knowledge and purpose are both parts of intent standard – however, for conspiracy the fact that I
know that one of my tenants is manufacturing drugs or using it as prostitution that is a situation
where knowledge will not be enough to make me a coconspirator
Pg 869 – Mannes, would he be guilty under the MPC – under MPC you have to act with purpose
of promoting the specific offense (subjectivist) – focuses on individual culpability
Riley v. State – there are cases like Riley which basically say that you cannot be an accomplice to
manslaughter – the men’s rea requirement for manslaughter is recklessness, problem is if I
intended you to commit manslaughter I should be charged for murder – this is the problem – Riley
is the minority rule – can’t have accomplice liability for a crime of negligence or recklessness
Majority - If you have intent to aid or assist the party and you have men’s rea required
for that offense you can be convicted of that – if I am speeding with you and encourage
you to speed you and I both have the mindset of either gross negligence or recklessness
Natural and Probable Consequence Rule – I intend to aid/abet you for a particular crime and you
commit another crime can I be liable – yes if it is reasonably foreseeable – can have situations
where I end up being responsible for your crime of intent – reason this is a problem is because the
men’s rea for complicity is that you do not intend that person to do that
Attendant Circumstances – I assist you in assaulting someone and you know they are a cop and I
do not, that is the same problem in conspiracy – courts go both ways but better rule is that there is
no men’s rea required for attendant circumstances
Actus Reus
In most cases this is not a big issue
Where the assistance is clear, either solicited to commit the crime, wanted you to be the principle
in first degree, or I got you a gun, or provided automobile, etc or I was there actively assisting
you
Problem comes in where the conduct is either relatively slight or an OMISSION and not conduct
Hitchhiker example – not an accomplice
Im going to kill my mother, you won’t get any interference from me – that is
encouragement and she was liable as an accomplice
What about mere presence? Generally no but encouragement is enough and there are plenty of
cases in which encouragement has been inferred from presence
Presence v. presence with some other factor
Line between encouragement and presence is a fine line
Causation – if you assisted it with the requisite men’s rea you have accomplice liability, the fact that the
other person caused the harm is sufficient
In these situations someone else is going to cause the harm
Lets say I give you assistance which you do not use – I give you a car that you are going to use for
a bank robbery, but you do not use my car – still an accomplice – no causal relationship
 whatsoever to the crime
Reason why theoretically this is a problem because you have criminal liability even though I did
not cause the harm in any way
Basically overlook this problem – if I act with the requisite men’s rea and the crime is committed
then I have derivative liability from you
Attempt to aid
Genoa case – not liable , not committed by anybody
2.06 (3) (a) – changed by the MPC which says they would impose liability
Problem on page 891
Solicitation?
Common Law – not clear, must want person to be principle in the first degree
MPC – clear, would be liable for solicitation, does not matter if you are the principle in
the first degree or not
Conspiracy?
Common Law – 2 people have to agree
MPC – 1 person to want to do it
Burglary?
Common Law – no, both need intent to steal
Attempted Burglary?
MPC – 5.01 (3) yes
Larceny?
Whoever is holding bacon has larceny problem
If you do a criminal act through an innocent agent – doctrine of innocent or unwitty agent
Ie train do to identify a drug dealer and send dog to purchase drugs, use child, or insane person,
etc, then you have direct liability (not derivative liability)
Trouble:
I coerce somebody to rape my wife – under common law and MPC you cannot rape your wife,
can’t have direct liability for me raping my wife

Not necessary to convict the principle before you convict the accessory but it has to be the case where
there is a primary party somewhere
Common Law – could not convict accessory until primary party is convicted and cannot be
convicted of more serious offense than principle
This has changed – intent of primary party they are less culpable than the accessory party
MPC – accessory can be convicted of a more serious crime than the principle
Controversial because if this is derivative liability – if I derive my liability from you and
you have committed a felony of the third degree how is it I can be liable for felony of a
higher degree
Subjectivist approach is that people should be punished in accordance with their moral
culpability
If the principle is acquitted then the accessory cannot be convicted
Situation in which I am prosecuted for being accessory to a rape and you are the principle but you
are acquitted because victim could not identify you in a way that could not satisfy the jury, the
principle is not acquitted because crime occurred I can still be convicted
If jury does not think crime was committed then accessory cannot have liability
In Lopez if the principle is acquitted on the basis of an excuse there is no bar to conviction to the
accessory, it if it justification it is different
In McCoy –should apply to non homicide situations? There are cases that say yes, no
Attempt liability – 5.01
Distinction between conspiracy liability and accomplice liability (lots of overlap)
Essence of conspiracy liability is an agreement between two or more persons to participate in the
commission of a crime – the actual existence is not necessary
Essence of accomplice liability is assisting somebody – either before the fact or constructively at
the time of the commission – no causation requirement
Most of the time an accomplice is also a conspirator but not always
Often times conspirators are not accomplices (Pinkerton)
 He did not assist anything (he was in jail) but he was responsibility under the conspiracy
Conspiracy is very broad (broader than accomplice liability)
Drug examples – any time anyone of them sells drugs they all have conspiracy liability but not
accomplice liability because they are not assisting each other
Accessory liability is different – generally less extensive, only foreseeable given the thing you are
assisting with – limited to what assisting in doing whereas if it is a conspiracy liable for
everything foreseeable given the agreement
Example on page 814
A did not commit any crime personally – A engaged in a conspiracy/solicitation (they will merge)
– B robbed bank 1 and c robbed bank 2 and d engaged in car theft (individual liability)
Conspiratorial liability – fact that they know of each other means A B C D each are going to be
responsible for every crime that is committed
Accessorial Responsibility – A responsible for everything, B did not assist C and C did not assist
B – they are not accomplices – D is going to be an accomplice to B’s bank robbery, attempt for C
– accomplice liability for the one that is already done and attempt liability for the other one
1. General Principles
a) Common Law Terminology and Its Significance
STATE v. WARD
Court of Appeals of MD, 1978.
Accessories
1) Before the Fact (inciters)
2) At the Fact (Principal in the second degree) (abettors)
3) After the Fact (criminal protectors)
At common law the principal in the second degree may be tried and convicted prior to the trial of the
principal in the first degree, or even after the latter has been tried and acquitted. He may be convicted of a
higher crime or a lower crime than the principal in the first degree.
Accessory
1) cannot be tried, without his consent, before the principal
2) cannot be convicted of a higher crime than his principal
3) Only upon finding the principal guilty may the trier of fact consider whether the
accessory is guilty
4) An acquittal of the principal bars a subsequent trial of the accessory
5) Can only be prosecuted in the jurisdiction in which the accessorial acts took place,
rather than where the crime occurred (did not apply to principals in the second degree)
6) Strict Rules of pleading and proof applied: a defendant charged as an accessory could
not be convicted as a principal, and vice versa (avoided in misdemeanor and treason
prosecutions because all parties were principals)
MPC 2.06
(7) Defendants who were characterized at common law as accessories before the fact typically
may now be tried and punished without regard to the status of the principal’s prosecution
§ 2.06. Liability for Conduct of Another; Complicity.

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another
person for which he is legally accountable, or both.

(2) A person is legally accountable for the conduct of another person when:

(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an
innocent or irresponsible person to engage in such conduct; or

(b) he is made accountable for the conduct of such other person by the Code or by the law defining the
offense; or

(c) he is an accomplice of such other person in the commission of the offense.

(3) A person is an accomplice of another person in the commission of an offense if:

 (a) with the purpose of promoting or facilitating the commission of the offense, he

(i) solicits such other person to commit it, or

(ii) aids or agrees or attempts to aid such other person in planning or committing it, or

(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

(b) his conduct is expressly declared by law to establish his complicity.

(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such
result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with
respect to that result that is sufficient for the commission of the offense.
 (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it
is committed by the conduct of another person for which he is legally accountable, unless such liability is
inconsistent with the purpose of the provision establishing his incapacity.

(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an
accomplice in an offense committed by another person if:

(a) he is a victim of that offense; or

(b) the offense is so defined that his conduct is inevitably incident to its commission; or

(c) he terminates his complicity prior to the commission of the offense and

(i) wholly deprives it of effectiveness in the commission of the offense; or

(ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent
the commission of the offense.

(7) An accomplice may be convicted on proof of the commission of the offense and of his complicity
therein, though the person claimed to have committed the offense has not been prosecuted or convicted or
has been convicted of a different offense or degree of offense or has an immunity to prosecution or
conviction or has been acquitted.

MPC 242.3
An accessory after the fact is no longer treated as a party to the crime committed by the principal
in the first degree, but rather is subject to prosecution for a separate and lesser offense, such as
misprision or hindering apprehension or prosecution

b) Theoretical Foundation: Derivative Liability

An accomplice (at common law, a principal in the second degree or accessory before the fact) is not guilty
of the crime of aiding and abetting but instead is guilty of the substantive offense committed by the
perpetrator (the principal in the first degree) because of the accomplice’s complicity in the crime

The secondary party’s liability is derivative – it is incurred by virtue of violation of law by the primary
party to which the secondary party contributed. It is not direct liability

One who “aid and abets” the primary party to do this acts can be liable for doing so, but not because he has
thereby caused the actions of the principal or because the actions of the principal are his acts. His liability
must rest on the violation of law by the principal, the legal consequences of which he incurs because of his
own actions

2. Elements of Accomplice Liability: In General

STATE v. HOSELTON
Supreme Court of Appeals of West Virginia, 1988.
Lookout
Mens Rea of an accomplice is sometimes described as a dual intent (MPC 2.06 (3)a)
1) intent to aid the primary party and
2) the intent that such assistance result in the commission of the offense charged
Actus Reus of accomplice liability can take the form of solicitation of the offense, active assistance in the
commission of the crime, encouragement of the offense, or failure to prevent commission of the crime if
the secondary party has the legal duty to make such an effort. (MPC 2.06 (3) (a) (i)-(iii)

3. Mens Rea
a) Intent: Purpose of Knowledge?
PEOPLE v. LAURIA
California Court of Appeal, 2nd District, 1967.
Should guilt be assigned on the basis of knowing assistance, or should accountability as an accomplice
require proof that the actor assisted with the purpose of facilitating the commission of the offense(s)?

Theory of intentional requirement:

1) Social Policy – it would be undesirable to draw the circle of criminal liability any wider
The argument that people otherwise lawfully conducting their affairs should not be
constrained by fear of liability for what their customers will do has tended to prevail over
the argument that it is proper for the criminal law to prohibit conduct that knowingly
facilitates the commission of the crime
2) Notion of agreement as the paradigm mode by which a principal in agency law (the secondary
party in the terminology of the criminal law) becomes liable for the acts of another person. The
intention to further the acts of another, which creates liability under the criminal law, may be
understood as equivalent to manifesting consent to liability under the civil law
3) Forfeited personal identity

b) When is Intent Not Required?

i) Offenses Not Requiring Intent
RILEY v. STATE
Court of Appeals of Alaska, 2002.

ii) Natural and Probable Consequences Doctrine

STATE v. LINSCOTT
Supreme Judicial Court of Maine, 1987.
Rule: An accessory is liable for any criminal act which in the ordinary course of things was the natural and
probable consequence of the crime that he advised or commanded, although such consequence may not
have been intended by him

4 steps:
1) The primary party committed the target offense
2) Jury must determine if the secondary party was an accomplice in the commission of the target offense
3) Jury must determine if the primary party committed another crime or crimes, beyond the target offense
4) Just has to decide whether the latter crimes, although not necessarily contemplated at the outset, were
reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and
abettor

1) Actor intended to promote the primary crime and

2) the commission of the secondary crime was a foreseeable consequence of the actor’s participation in the
crime

Nevada reject this doctrine

iii) Attendant Circumstances

4. Actus Reus
STATE v. VILLANCOURT
Supreme Court of New Hampshire, 1982.
Mere presence (which does not constitute aiding) v. presence coupled with some other factor (which may
constitute aiding)

Failure to act accompanying men’s rea – MPC 2.06(3)(a)(iii)

If you have a legal duty to do so

WILCOX v. JEFFERY
King’s Bench Division, 1951.

STATE v. HELMENSTEIN
Supreme Court of ND, 1968.
Corroboration – require a jury instruction cautioning jurors to treat the testimony of an accomplice, or a
witness who might be determined by the jury to be an accomplice, with caution

Is causation required?
Most courts say No – It is quite enough if the aid merely rendered it easier for the principal actor
to accomplish the end intended by him and the aider and abettor, though in all human probability
the end would have been attained without it
Does MPC 2.06 require a causal connection between the accomplice’s assistance and the
commission of the crime?

Is the no-causation requirement principle justified?

Accomplice Liability by attempting to aid?

At common law not an accomplice. An actor is an accomplice in the commission of an offense if
she intentionally aids – no matter how minimally – the primary party. Nonetheless, she must in
fact assist.
MPC 2.06(3) – attempts to aid such other person in planning or comitting3

PEOPLE v. GENOA
Court of Appeals of Michigan, 1991.
5.01(3) – Conduct Designed to Aid Another in Commission of a Crime – A person engages in conduct
designed to aid another to commit a crime that would establish his complicity under Section 206 if the
crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime
is not committed or attempted by such other person

Entrapment
Subjective Theory
Objective Theory

5. Distinguishing Direct From Accomplice Liability

BAILEY v. COMMONWELATH
Supreme Court of Virginia, 1985.
Innocent Agency Doctrine
MPC 2.06 (2) (a)

MPC 242.6(1)

6. Relationship of the Liability of the Accomplice to the Principal

a) If the Principal is Acquitted
UNITED STATES v. LOPEZ
United States District Court, ND California, 1987.
General Rule – A defendant can be convicted of aiding and abetting even if the principal is not identified or
convicted; however, an aider and abettor may not be held liable absent proof that a criminal offense was
committed by a principal. “The fact that the principle need not be identified or convicted has never been
though to obviate the need for proof showing that an underlying crime was committed by someone.”

A third party has the right to assist an actor in a justified act

A third party can be convicted of aiding and abetting if the actor is using excuse defense (excuses are
always personal to the actor)

b) If the Principal is Convicted

PEOPLE v. McCOY
Supreme Court of California, 2001.
It is possible for a primary party negligently to kill another (and, thus, be guilty of involuntary
manslaughter), while the secondary party is guilty of murder, because he encouraged the primary actor’s
negligent conduct, with the intent that it result in the victim’s death

Rule: When a person, with the mental state necessary for an aider and abettor, helps or induces another to
kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s
own men’s rea. If that person’s men’s rea is more culpable than another’s, that person’s guilt may be
greater even if the other might be deemed the actual perpetrator.

7. Limits to Accomplice Liability

IN RE MEAGAN R.
Court of Appeal, 4th District, California, 1996.
Rule: Where the Legislature has dealt with crimes which necessarily involved the joint action of two or
more persons, and where no punishment at all is provided for the conduct, or misconduct, of one of the
participants, the party whose participation is not denounced by statute cannot be charged with criminal
conduct on either a conspiracy or aiding and abetting theory.

PEOPLE v. BROWN
Appellate Court of Illinois, 3rd District, 1980.
Withdrawal Provision
Rule: Withdrawal provisions of an accountability statute are ineffective to prevent liability for an attempted
crime after the planning has already taken place

B. Conspiracy Liability
PINKERTON v. US
Supreme Court of the US, 1946.

C. Vicarious Liability
COMMONWELATH v. KOCZWARA
Supreme Court of Pennsylvania, 1959.
At common law – any attempt to invoke the doctrine of respondent superior in a criminal case would have
run afoul of our deeply ingrained notions of a criminal jurisprudence that guilt must be personal and
individual
Rule: An employer cannot be imprisoned (but can be fined) under a theory of respondent superior for the
criminal acts of his employees committed on his premises without his presence, participation or knowledge

MP 2.06(2)(b)

Liability based on some relationship

Do not like to make people vicarious liable under criminal law
DO not want to impose liability where people are not culpable

D. Corporate Liability
American Law Institute – Model Penal Code and Commentaries, Comment to 2.07

STATE v. CHRISTY PONITIAC-GMC, INC.

Supreme Court of Minnesota, 1984.
A corporation may be guilty of a specific intent crime committed by its agent if:
1) the agent was acting within the course and scope of his or her employment, having the authority
to act for the corporation with respect to the particular corporate business which was conducted
criminally
2) the agent was acting, at least in part, in furtherance of the corporation’s business interests
3) the criminal acts were authorized, tolerated, or ratified by corporate management

Rule: A corporation may be prosecuted and convicted for the crimes of theft and forgery

Pamela H. Budy – Corporate Ethos: A Standard for Imposing Corporate Criminal Liability
2 major standards to determine when a corporation should be criminally liable
1) Common law rule – traditional or respondent superior – derived from agency principles in tort
law, it provides that a corporation may be held criminally liable for the acts of any of its agents
who
1) commit a crime
2) within the scope of employment
3) with the intent to benefit the corporation
2) MPC
1) The option that applies to the majority of criminal offenses provides that a court may
hold a corporation criminally liable if the criminal conduct was authorized, requested,
commanded, performed or recklessly tolerated by the board of directors or by a high
managerial agent acting in behalf of the corporation within the scope of his office or
employment
Limited respondent superior – liable only for conduct of some agents
2) 2.071(1)(a) applies to minor infractions and non-Code penal offenses in which a
legislative purpose to impose liability on corporations plainly appears. The standard is
broad respondent superior, for the corporation is held liable whenever the conduct is
performed by an agent of the corporation acting in behalf of the corporation within the
scope of his office or employment
3) 2.07(1)(b) applies to omissions and provides strict liability for the corporation that fails
to discharge a specific duty imposed by the law

Both approaches fail to analyze corporate intent – cases where a corporate employee acted contrary to
express corporate policy and yet the court still held the corporation liable

Problems with MPC approach:

1) Maverick employee (still automatically imputes the intent of individual corporate agents)
2) Liability is too narrow – a corporation is not held criminally liable when it should be (if policy
caused lower echelon employee to commit an offense)
3) it encourages higher echelon officials to insulate themselves from knowledge of corporate
employee activity

Hornbook rule is that a corporation cannot be imprisoned or killed and, therefore, may not be indicted for
any crime for which imprisonment and/or death are the only punishments set out by the legislature

John C. Coffee, Jr. – “No Soul to Damn: No Body to Kick”: An unscandalized Inquiry into the
problem of Corporate Punishment
A. The Deterrence Trap
Ability to deter the corporation may be confounded by our inability to set an adequate
punishment cost which does not exceed the corporation’s resources
Corporate misbehavior involves high stakes

B. The Behavioral Perspective

It ignores the organizational dynamics within the firm and treats the corporation as a
black box which responds in a wholly amoral fashion to any net difference between
expected costs and benefits
May be extraordinarily difficult to prevent corporate misconduct by punishing only the
firm
1) individual manager may perceive illegal conduct to be in his interest, even if
the potential costs to which it exposes the firm far exceed the potential corporate
benefits
2) Risk preferring manager
3) individuals frequently act out of loyalty to a small group within the firm with
which they identify
The locus of corporate crime is predominantly at the lower to middle management level
 C. The Externality Problem
Incidence of the financial penalty:
1) Stockholders bear the penalty in the reduced value of their securities
2) Bondholders and other creditors suffer a diminution in the value of their securities
which reflects the increased riskiness of the enterprise
3) Cost-cutting campaign, involving reductions in the work force through layoffs or
lower echelon employees who received no benefit from the earlier crime
4) It may be passed onto the consumer

Socially cheaper methods to punish corporations?

1) implementation of equity fines whereby a corporation is ordered to authorize and issue shares
of the corporation to a State crime victim compensation fund in sufficient number that their
expected market value is equivalent to the cash fine necessary to deter illegal activity
2) Authorization of private law suits with treble damage penalties following Government
prosecution
3) Increased plea bargaining by prosecutors, so that corporations would be required to provide
restitution to injured victims in exchange for dismissal of criminal charges

Factors prosecutors should consider:

1) They should be aware of the important public benefits that may flow from indicting a
corporation in appropriate cases
2) May result in a specific deterrence by changing the culture of the indicted corporation and the
behavior of its employees
3) Certain crimes that carry with them a substantial risk of great public harm, are by their nature
most likely to be committed by businesses, and there may, therefore, be a substantial federal
interest in indicting the corporation

EXAM
60 MC
20 T/F
1. What is a crime
2. Deals with unintentionally killing someone
3. Jury Instruction and what is proper instruction
4. Theory of Punishment
5. Theory of Punishment
6. Principle of Legality
7. Legality
8. Notion of an actus reus
9. notion of a mens rea
10. transferred intent
11. Mistake
12. Causation
13. Causation
14. Solicitation
15. Solicitation/Attempt/Conspiracy
16. Solicitation/Attempt/Conspiracy
17. Mens Rea
18. Mens Rea
19. Actus Rea
20. Mens Rea
21. Self-Defense (defense of other/property/self)
22. Solicitation
23. Solicitation/Attempt/Conspiracy
24. Solicitation/Attempt/Conspiracy
25. Mistake
26. Causation
27. Solicitation/Attempt/Conspiracy
28. Mistake
29. Mistake
30. Necessity
31. Necessity
32. Mens Rea (mitigating murder to manslaughter/heat or provocation)
33. Mens Rea
34. Manslaughter
35. General Mens Rea (purpose/negligence)
36. Duress
37. Solicitation/Attempt/Conspiracy
38. Solicitation/Attempt/Conspiracy
39. Solicitation/Attempt/Conspiracy
40. Solicitation/Attempt/Conspiracy
41. Manslaughter
42. Manslaughter/Murder
43. Manslaughter/Murder
44. Felony-Murder
45. Felony-Murder
46. Felony-Murder
47. Felony-Murder
48. Felony-Murder
49. Felony-Murder
50. Felony-Murder
51. Impossibility
52. Impossibility
53. Impossibility/Solicitation
54. Attempt
55. Solicitation/Attempt
56. Solicitation/Attempt/Conspiracy
57. Solicitation/Attempt/Conspiracy
58. Homicide
59. Impossibility
60. Defective Intoxication

1) MP retains degrees of murder but organizes them in a diff way than common law – F
2) Joe unintentionally kills ted during robbery, MPC provides that the jury must infer extreme recklessness
from commission of crime – F
3) Under common law of solicitation, the solicitor intends that person solicited to be principle of first
degree and solicitor wants to be principle in the second degree or the accessory before the fact – T
Not the case un the MPC – do not have to intend to be principle in 1st degree
Do not have principles and accessories in the MPC
4) Rape is a specific attempt crime at common law but not under MPC – F
Not specific attempt crime under anything
In common law it is general
And in MPC no distinction between specific and general
5) Conspiracy must either be a chain conspiracy or a wheel conspiracy but cannot be both – F
can be a combination