CRIMINAL LAW: SETTING THE STAGE
A. RECURRING THEMES:
1. Competition/ balance b/t freedom & security- Reluctant to allow gov't to
intrude on our lives. Question of how much freedom are we willing to
give up in order to feel secure. (Cts & legislatures differ on this topic)
2. Need to balance b/t rules & discretion- Strict rules or leave decision to
person making them at the time? Whom do we want to allocate the
authority to make the decision. (Judge, jury, or legislature??)
3. What is a crime & how seriousness a crime is a certain act- GRADING:
How much should we punish for committing a certain crime
4. What makes crime- Crime b/c we say it is; A decision that you have done
something that is harmful enough to society that we are willing to morally
declare it a wrong & willing to punish you.
5. Wrong Acts that are not crimes- Ex. Lying generally not a crime
6. Acts that are crimes in 1 society but not in others – Adultery, Homosex
7. If you have a law that does not adhere to the consensus of moral value
what happens to enforcement? Either no enforcement or arbitrary
enforcement (people being singled out)
8. Difference b/t a Tort & Crime? Who is prosecuting the act --Tort is
prosecuted by the individual who is harmed . In Crim Law it is the State
that is aggrieved (societal interest) where Criminal Law it is prosecuted by
society. POLICY ARGUMENT: Societal Interest
9. Criminal Law in US came from Common Law. Cases from British &
American. Look at legislative intent
10. When evaluating cases---Look at the goals the Ct is trying to reach, the
proportionality of how it is decided, & policy
B. CRIM LAW PROCEDURES
1. Adversary system of justice →Judge plays neutral role, prosecutor,
defense atty on other side.
2. Characteristic of our system : Points of discretions where choices are
made. Choices about what things shall be crimes; Defenses to crimes
3. Jury trial exists in all prosecutions where max potential of punishment
exceeds incarceration of 6mths; in all non-petty offenses
4. Impartial Juror - Process of examining potential juror = Voir Dire. If
bias is demonstrated then juror is excused for cause. Both D & P are
entitled to preemptory challenges – challenges not based on cause.
5. In most crim cases, jury is composed of 12 and must reach unanimous
verdict to convict/acquit. Juries of 6 is Constitutionally permissible.
6. There is NO directed verdict for the State/Prosecution in Crim Case.
Directed verdict can be issued for the Defendant.
7. Standard on Appeal – Whether a “rational trier of fact” could
reasonably reached the decision it did. (i.e. Was the evidence
sufficient to support the decision.)
a) Appellate Ct is NOT the fact-finder in a Crim Case. (That’s Jury’s
Role). Jury is in a better position to resolve factual conflicts b/c
they see all of the evidence.
b) After conviction, Ct App faced w/a record of historical facts
supporting conflicting inferences must presume the trier of
fact resolved any conflicts in favor of prosecution, and defers
to that resolution.
C. PROOF OF GUILT @ TRIAL
1. Proof Beyond a Reasonable Doubt – difficult to define.
2. Wild guess that D is guilty → Probably Cause (Reasonable ground that D
might be guilty → Preponderance of Evidence (more likely than not D is
guilty →Clear & Convincing (Some things for which the Cts require
more than 51%) → Beyond Reasonable Doubt →Absolute Certainty.
3. You want to be closer to absolute certainty.
4. Better to let guilty go free than to convict the innocent. (Windship)
D. ENFORCING PRESUMPTION OF INNOCENCE
1. Owens v. State – D convicted of driving, while Intoxicated, on a
Highway. Ct App upholds conviction b/c based on evidence it was
reasonable, more than a flip-of coin to find the D guilty. Ex) Empty cans,
no radio on in the car, etc.).
E. JURY NULLIFICATION
1. Allows jury to ignore facts & judges instruction & acquit Δ
Prof. Rosen McMillan-McWaters 1

RETRIBUTIVIST
A. (Def.) Punishment is justified b/c people
deserve it.
B. Retributist does not measure the cost, but
instead relies on the fact that it is morally
just. (EYE FOR AN EYE)
C. Proportionality – limitation principle of
retributivism. This is a way to decipher
revenge from retribution. One is punished in
proportion to the crime.
D. Justification (Moral based) – We punish b/c
we derive social benefit. Punishment helps
more than it hurts.
Punishment must fit either one of these theories
PRINCIPLES OF PUNISHMENT
UTILITARIAN
A. (Def. ) Justification is punishment serves useful purposes; looks at what the benefits are for society.
B. This is sometimes referred to as consequentialist or instrumentalist.
C. Utilitarian Policy For Punishment
1. Deterrence - prevention of future crime. If we punish the person harshly then it will prevent others
from committing the same act.
a) Problem against deterrence is that if the possibility of getting caught is low then it will not deter
you from committing the act.
b) Specific Deterrence - notion that you will deter this particular individual from committing the
crime.
2. Incapacitation - taking away the capacity of that person to commit another crime by locking them up
for life or killing them.
a) Problem with incapacitation is the cost to do this. Very expensive
b) Another problem is determining how long you lock someone up
3. Rehabilitation - reforming offender so they won’t commit the crime again

A. CHARACTERISTICS OF
PUNISHMENT – 1) Punishment is
performed by and directed at,
agents who are responsible in
some sense. ( People can punish,
hurricanes cannot), 2) Punishment
involves "designedly" harmful/
unpleasant consequences, 3) The
unpleasant consequences usually
are preceded by a judgment of
condemnation, 4) Punishment is
imposed by one who has authority
to do so, 5) Punishment is
imposed on an actual/supposed
violator of the rule behavior.
B. OBJECTIVES OF
SENTENCING –
1. To protect society
2. To punish the D for
committing a crime
3. To encourage the D to
lead a law-abiding life
4. To deter others
5. To isolate the D so she
can’t commit other
crimes
6. To secure restitution
for the victim
7. To seek uniformity in
sentencing
C. PROPORTIONALITY - 8th Amend-“ excessive bail shall not be required, nor
excessive fines imposed, nor cruel & unusual punishment inflicted"
1. A punishment is excessive and unconstitutional if…
a. It makes no measurable contribution to acceptable goals of punishment &
thus is nothing more than purposeless/needless imposition of pain & suffering
b. Is grossly disproportionate to the underlying offense. RULE: The 8thAmend
does NOT require strict proportionality btw crime and sentence. Rather, it
forbids only extreme sentences that are grossly disproportionate to the crime.
2. Three factors relevant to determining whether sentence is so disproportionate
that it violates the 8th : 1) The gravity of the offense and the harshness of the
penalty; 2) The sentences imposed on other criminals in the same jurisdiction;
3) The sentences imposed for commission of the same crime in other juris’s
3. Test For Whether A Punishment Is Excessive Two Part Test 1) Makes no
measurable contribution to acceptable goals of punishment & hence is nothing
more than the purposeless & needless imposition or pain & suffering; or 2) Is
grossly out of proportion to the severity of the crime.

Prof. Rosen McMillan-McWaters 2

 LEGALITY
A. LEGALITY (def.) - notion that you are only punished when you violate the law & only to the extent that the law allows it.
1. Ct may not impose penalties or measures; only those implied by law.
2. Why is this important? What are we trying to prevent? POLICY: Uniformity in the system to give citizens the chance to comply with the law; Fear of arbitrary
use of power; Fundamental notice of fairness.
B. PRINCIPLE OF LEGALITY--conduct is NOT punishable unless the law defines it as criminal before it occurs.
1. No punishment unless conduct was defined by statute before D acted, rather than judicial crime-creation.
C. THREE INTERREALTED PRINCIPLES TO LEGALITY
1. Criminal statutes should be understandable to reasonable law-abiding persons;
2. Criminal statutes should be crafted so as NOT to “delegate legislative matters to others (judges, police, etc.) for resolution on an ad hoc and subjective basis”
3. Lenity Doctrine (interpretation should favor the accused)—favorable to D ; if there is a tie it goes to the Defendant. One Cost of the Rule of Law is that some-
times people will get away with doing bad things if there is no statutory provision.
D. CASES:
1. Commonwealth v. Mochan- Δ telephoned the victim & made filthy and indecent phone calls. D argues that there is no statute that prohibits this conduct. There is n
law & thus I should not be punished. Ct says the lack of the statute is not a hindrance to the conviction. No precedents that say making dirty phone calls is a crime, b
he court believes they can punish the D b/c this is the way it was done at Common Law.
2. Keeler v. Superior Court - Demonstrates the limits of the Common Law methods and shows the continuing importance of Common Law. D saw his wife
driving down the road. D severely beat ex-wife and unborn fetus was also killed as a result of the beating. Issue of whether fetus is a human under the elements
of the crime. HOLDING: Fetus is not a human 3rd element of crime based on historical interpretations.
E. SPECIFICITY IN STATUTES
1. Law must give a person of reasonable intelligence a reasonable opportunity to know what is prohibited. City of Chicago v. Morales Ordinance prohibiting
loitering by gang members in public places is too broad and doesn’t provide specific limits on the enforcement discretion given to police → Violates D/P
2. Courts may narrow the construction of a statute (In re Banks “Peeping Tom” statute)
a. You can’t prosecute someone if the language of the statute is so vague that they can’t tell what they have done wrong. This amounts to NO notice.
b. Look at intent of the legislature.
c. Look at the words in the statute in isolation—notice flaw
d. Void for vagueness: if too ambiguous to be applied fairly
e. Laws must provide explicit standards to those who apply them so to avoid discriminatory application.
i. Clear statute = plain and definite meaning.
ii. Ambiguous statute = match legislative intent
F. INTERPRETING STATUTES
1. Ct will look at plain meaning with clear language UNLESS: Application leads to injustices, oppression, or absurd consequences.
2. If a statute is ambiguous, Ct will examine legislative intent. Look at context, changes to statute, and legislative history.

Prof. Rosen McMillan-McWaters 3

 ACTUS REUS
A. In order to convict/punish for a crime you generally must prove: Act/ Conduct
1. Specified Mental State 2. Result
B. The actus reus of an offense consists of…1)voluntary act; 2) that causes;
3) (social) harm.
 Ex:) If A picks up a knife &stabs B, killing B, the actus reus of a criminal
homicide has occurred: A has performed a voluntary act (stabbing B)
that caused B’s death (the social harm).
C. Def. - person commits what the law calls an act pursuant to a culpable mental
state and sometimes a result
D. Presumption is that an act is required unless the statute specifically tells us
otherwise.
E. Reflex or Convulsion does not give rise to liability
1. BUT, if Δ had knowledge of being subject to the act and unreasonably puts
himself in a position likely to harm others, he might be liable (EXAM TIP:
argue both if issue comes up)
F. CONDITIONED RESPONSE is ALWAYS a defense to criminal liability. (State v.
Utter Drunk Δ stabbed son and argued conditioned response from the war).
1. Drinking was a voluntary act which led to violence. Unconsciousness acts
as a complete defense EXCEPT when the state is voluntarily induced. Self-
induced state may be an earlier voluntary act that deprives Δ of involuntary
defense. Why doesn't the D get a new trial? Ct says there was no
substantial evid of what occurred in the room b/c D testified he was
unconscious. Good Lesson: you can win the legal argument & lose case!!!
G. Generally not a voluntary act: - Mere thoughts are never punishable as crimes;
Reflex or convulsion; Unconsciousness: Unless voluntarily done to yourself
(intoxication) Usually called automatism. Sleepwalking will usually fall into this
category; Hypnotism: Cases are divided on this one; MPC says that all of these
are defenses to actus reus except voluntary intoxication.
H. Why require an act and not prosecute for mere thoughts?
1. Need to give people latitude to think; Over-deterrence and chilling free
will; Problems of proof (mind reading).
I. OMISSIONS (NEGATIVE ACTS)
1. Hypo: An Olympic swimmer strolling on beach & a 5yr old child runs in front
2. People v. Beardsley - D & victim party while D's wife is out of town.
Victim OD’s on pills. HOLDING: Duty must be a legal duty and not a
moral obligation. Ct says D had no legal duty. Even if D had duty, D’s
defenses: he was incapacitated or he had no idea she was going to
take the pills & thus had no obligation.
J. Categories of Legal Duties in Crim Law:
1. Statute that imposes duty Ex.) Failure to file taxes is a crime, at
accident you have to stop, failure to furnish med care for a child.
2. Special Relationship
3. Assuming a contractual duty to care for another Ex.) Nurse, railroad
gatemen, life guards, etc.
4. Where one has voluntarily assumed the care of another
5. When a person creates a risk of harm to another
6. Model Penal Code sec. 2.01 (1) - Nothing else appearing, there is
not duty by omission of an act.
K. Barber v. Superior Court - Barber is a Dr who performed a surgery on
victim & discontinued life support on victim. Victim died. Family
authorized the removal of life support. Barber intended for the victim to
die b/c they removed life support so that he could die. (This will be
enough to show intent to kill)
1. If Drs had injected the victim with poison to kill them, they would
still be guilty of murder. Euthanasia NOT a defense to murder.
2. Omissions Law Analysis:
a. Do Dr's have duty to treat patients? Yes under the contractual
obligation. Doesn't duty require Dr to make the patient better?
Generally, Doctors duty is to make the patient better. If you
define duty as keeping the patient alive, then the Doctors are
guilty of murder.
b. Ct defines the Dr's duty more narrowly. Dr’s duty in this narrow
situation is to respond to the wishes of the family. To give
proportionate treatment which is determined by the family. The
wife made the choice in this case.
Prof. Rosen McMillan-McWaters 4
 of swimmer. Child drowns. Swimmer does nothing to save the child. Can we “Opening up the Time Frame”--Court may do this in order to include prior
hold the swimmer criminally liable? Crim Law is all about morality. RULE: conduct…
We do not impose criminal liability even if the person could have saved the  Ex: A seizure while driving does NOT automatically preclude liability,
child without danger/peril to ones self. We generally do not impose a duty b/c courts may say that you had a “choice” about getting into car.
to inform about a crime, unless there is a statute that states otherwise.
POSSESSION: Law generally allows ct to hold that someone possessed
RESULT CRIME v. CONDUCT CRIME With a “conduct crime,” the actus reus of the something even w/o a physical act.
Offense will NOT include any harmful result  (MPC) “Possession” is an “act” if possessor either knowingly
obtained the object possessed OR knew she was in control of it “for
VOLUNTARY: D must perform physical act (“willed” movement) for each element of a sufficient period to have been able to terminate…possession.”
crime that has an actus reus component.
L. MISPRISON OF FELONY Absent special circumstances, a person has NO legal duty N. ACT v. OMISSION
to inform the police of another person’s plans to commit a criminal offense. ACT OMISSION
M. ATTENDANT CIRCUMSTANCES:  Is there a causal link?  Was there a failure to act?
1. An attendant circumstance is a condition that must be present, in conjunction w/  Is there Mens Rea  Is there a causal link to
prohibited conduct or result, in order to constitute the crime (such elements prohibited harm? (Would it
constitute a part of the actus reus of an offense). happen otherwise?)
2. Ex: Statute  “it is an offense to drive car in intoxicated condition.” The  Was there a legal duty to act?
words “in an intoxicated condition” represent attendant circumstance: actus  Did the actor have culpability?
reus of offense does NOT occur unless actor drives car (conduct) while  Is there Mens Rea?
intoxicated (circumstance that must be present at the time of conduct).
3. “In an intoxicated condition” is NOT a conduct element b/c the offense, as
defined, does NOT prohibit a person from becoming intoxicated, ONLY that,
in such condition, she must not drive her car.
4. There is another “attendant circumstance”; driving a car (b/c driving a car is
NOT, in itself, prohibited).
5. The “social harm” of offense has NOT occurred unless the specified attendant
circumstances are present.

Prof. Rosen McMillan-McWaters 5

 MENS REA(culpable/guilty mind)
A. (Def.) D act w/ a blameworthy/ culpable mental state.
1. Mental state expressly required in the definition of an offense.
2. Applies to the state of mind that D must have in regards to the elements
of the offense.
B. POLICY: Utilitarian: if one lacks the mental state specified, punishment would
not deter; Retributive: it is unjust to subject one to social stigma without a
morally culpable state of mind.
C. EXAM TIP: Question presented/ to analyze in each case is which, if any, Mens
Rea applies to this specific element of this case?
1. Ex.) Occupied House in NC for burglary. D's thought they were going into
an empty house. Not 1st degree burglary to go into an empty house. Ct
held this was strict liability b/c the cops were in the house waiting so it
was occupied whether or not the D's believe there was no one in the
house.
D. Regina v. Cunningham - D convicted of acting unlawfully & maliciously toward
prospective mother-in-law (victim) by pulling the gas meter from the gas pipes
which resulted in mother’s asphyxiation. HOLDING: Evid sufficient in which
jury could find that D acted intentionally.
E. People v. Conley - D went to party and hit a guy in face with a wine bottle, but
intended to hit another person. The court finds that the jury could have found
that D acted knowingly, even though he did not intend to disfigure victim. You
hit someone w/bottle, it is reasonable to know that they could be seriously
injured or disfigured.
F. TRANSFERRED INTENT
1) Intent to kill A is transferred if you kill B. What you are being convicted
of is the killing someone with the intent to kill a person. It doesn't matter
who you kill. You created the harm that you wanted to create & we don't
care that you killed a diff person than intended.
2) IMPT NOTE: Transferred intent (Mens rea) does not necessarily transfer.
Ex) People v. Conley - his intent to steal the gas did not transfer to an
intent to harm his mother-in-law and didn’t' automatically make D guilty
of malicious intent. This is the different type of intent and doesn't
necessarily transfer.
G. MODEL PENAL CODE &DEFINITIONS OF MENS REA
1) Purposely - you have the specific intent to achieve the specific result
2) Knowingly - you are practically/probably certain that the desired
result will occur. (Ex. You throw a stick of dynamite in a bar; you
have positive desire to kill but your act is likely to cause death)
3) Recklessly - consciously taking a substantial & unjustifiable risk; you
are aware of the risk but you disregard it; risk is a gross deviation
from the standard of care.
4) Negligently - inadvertently causing a substantial & unjustifiable risk;
you do not have to be aware of the risk
5) NOTE: NC does not use Model Penal code & has its own definition.
6) If there is no mens rea in a statute than the default mens rea is
recklessness
7) The lower you go down the list of Mens Rea the easier it is to
convict. Prosecution usually wants a lower Mens Rea, while the
Defense wants a higher Mens Rea.
H. State v. Nations – D charged w/ endangering a child by hiring her to strip
in club. At issue is whether D had knowledge of child’s age. Statute
required actual knowledge, and Ct held D didn’t have requisite knowledge
 Hypo: What if there was evidence in the record that girl
looked like she was 10? Actual knowledge comes in diff ways.
You can use common sense.
I. WILLFUL BLINDNESS
1. 2 Things the Prosecution must show: (EASIER BURDEN FOR GOV’T)
a. What the Jury has to be instructed on
b. What inferences the jury can draw from the evidence.
2. State v. Juel - D drove car across border with drugs & claims he didn't
know drugs were in secret compartment. Ct instructed jury that
despite his denial you can convict if he purposely avoided confirming
his suspicions; willfully kept himself from knowing
Prof. Rosen McMillan-McWaters 6
STATUTORY INTERPRETATION
1. MPC - a word describing a mental state early in a statute will apply to all
later words that require a mental state.
2. When applying and interpreting statutes, make sure to remember the Rule
of Lenity – ambiguous statute should be rule in favor of Defendant
3. Things to look at when interpreting statutes:
a. Check PUNCTUATION
b. Look for the word at other points in the same section
c. Check legislative history
d. Look for the word in other subsections and see how it’s used
e. Draw negative inferences.
4. State v. Morris – D released virus into internet to show inadequacies in
security system. Element at issue is intentionally as defined in stat.
HOLDING: that Legis had double mens rea, but chose to took 1 out b/c
they didn’t want people to get prosecuted if they access a fed comp.
STRICT LIABILITY
1. GENERAL RULE: Operate under assumption that there is a culpable mental
state. EXCEPTION: STRICT LIABILITY is an exception to this general rule.
2. In some circumstances penalties are imposed w/o any requirement that
the act is accompanied by proof of a culpable mental state. This is
primarily a matter of statutory construction. Strict liability crimes for the
most part are not unconstitutional. Prevailing thought is that they are
disfavor able
3. Question under Strict Liability: Is the statute strictly liable as to this
essential element?
4. Staples v. U.S. - D found w/altered semi-automatic weapon. Holding: Ct
says that this is a public welfare statute & that there is a mens rea
requirement of knowledge here and it's not a strict liability crime b/c: 1)
There is a 10 yr penalty (the higher the penalty the less likely the ct will
find it to be strict liability, 2) they do not view semi-automatic rifles as
dangerous items and compare it to cars, unless Congress changes this.
Dissent - Firearms are dangerous objects and that it's close to hand
grenades than cars.
12) Common Law Mens Rea Analysis: If you look to see if a Mens Rea was
required under Common Law, then it can be assumed that the Mens
Rea requirement was meant to apply under the statute.
13) Garnett v. State – mentally retarded man (20yrs) found guilty of
statutory rape of 14yr old. Ct finds that it is strict liability b/c there are
other parts of the statute there are mens rea but this part specifically
excluded it. Pretty strong evidence that the legislative didn't want it.
What mens rea is here: knows or should reasonable know?
Knowledge & Negligence.
14) Advantages/Arguments in Favor of Strict Liability
a. Little wiggle room
b. Deterrent effect --puts the risk on those who do something that is
unacceptable
c. Ensure that guilty people don't escape conviction
15) Criticisms of Strict Liability
a. Dean Singer argues other weaknesses:
 Extensive gov't civil regulations & strict liability in tort achieve
the same deterrent effect
 The judicial efficiency of dispatching minor offenses w/o an
inquiry into mens rea is attained equally by decriminalizing them
and hearing such cases in a regulatory or admin forum.
 The small penalties imposed for the most SL offenses oblige the
public to engage in a pernicious game of distinguishing "real"
crime from some lesser form of crime.
 Some SL laws may result from careless drafting
 SL dilutes the moral force that the criml law has historically
carried.
 Does not deter because D is unaware of the facts that made his
conduct dangerous.
 It is unjust to condemn someone who is not morally culpable.
Response: people may be more careful simply because they
know that a certain behavior is governed by strict liability.
16) Steps for determining if a statute is SL: a. Elements b. Mens rea for
each element c. Facts? d. What are facts as D believes them?
Prof. Rosen McMillan-McWaters 7
MISTAKE & MENS REA
1) Mistake of fact, good faith mistake, reasonable mistake, unreasonable
mistake.
2) STICK TO ELEMENT ANALYSIS WHEN DEALING WITH MISTAKE
3) GENERAL RULE: A mistake can be a defense if it negates a mens rea
requirement for a conviction. If it does not, then it is not a defense in
most circumstances.
4) D raise the defense of mistake when they have been mistaken either
about the facts or the law.
a. Look at the effect of the mistake on D’s mental state.
b. Examine whether he was prevented from having the mental state
required for the crime BECAUSE of the mistake of fact or law.
5) D’s mistake is least likely to help him for crimes of general intent—where
the most general kind of intent will suffice (i.e. murder)
6) If a statute requires intent of knowledge, even an unreasonable mistake
as to a fact will block conviction under the MPC.
a. If a statute only requires negligence, only a reasonable and honest
mistake as to a fact will block a conviction.
7) If a statute does not require a mental state, D can be convicted under the
moral wrong doctrine.
a. If under the facts, as D believed them to be, his conduct was still
immoral.
8) When the mistake relates to the application of law to fact and the fact is a
collateral one, the mistake doctrine can block conviction.
9) Even an unreasonable mistake will block conviction if the mistake
prevented D from having the requisite intent or knowledge.
10) Legal Wrong Doctrine requires that if D believed he was committing a
crime, but it was a lesser crime, he is still guilty of the greater crime.
11) People v. Navarro D believed items were discarded, abandoned property.
Reversed decision b/c of jury instructions. No reasonableness
requirement b/c theft is a specific intent crime and the general rule is
good faith mistake is a defense. If it had been a general intent crime the
Trial Ct instruction of reasonableness would have stood. Holding - Specific
intent crime = NO OBJECTIVE STANDARD if erroneous belief is genuine.
Specific Intent Crime & General Intent Crimes
1. General Intent - Requires a degree of culpability before D can be
convicted. Acting with a bad, corrupt, wicked purpose.
2. Specific Intent - Used when def of crime require that the D act with a
special motive or purpose.
 Also applies when law requires that the D has a specified
knowledge. (Ex. Knowingly assisting a felon = accessory after
the fact)
 Premeditated & deliberated (Ex. Murder) Malice is usually
not specific intent
MISTAKE ANALYSIS: Look at elements…Then look at this chart & determine
what mistake applies.
Common Law Model Penal Code Mistake Defense
Specific Intent Purpose & Knowledge Honest
General Intent Reckless & Crim Honest Reasonable
Negligence
Strict Liability Strict Liability No mistake defense b/c there is
no mens rea requirement
Mistake or Ignorance of the Law Analyze the same way as Mistake of Fact
1. Do general element analysis.Once you do your element analysis and
you get a guilty based off of that, it is very hard for the court to allow a
defense
2. Ct will generally not grant exemption if D claims they did know the
law, unless the crime itself requires actual knowledge of the law.
POLICY - to say that ignorance of the law is an acceptable defense, would be to
encourage such ignorance, rather than to respect and adherence to the law;
there would be infinite number of mistake defenses; additionally it would
create opportunity for wrong-minded individuals to contrive in bad faith solely
to get an exculpatory notion before the jury.
EXCEPTION: When a law imposes a duty that we don’t expect anyone to know
about then it violates D/P. Notice needs to be given to be Constitutional.
Prof. Rosen McMillan-McWaters 8

PURPOSEFULLY
1. Intent (Def.) D must have the
conscious objective or
purpose to cause harm.
2. Attendant circumstances: If
the actor is aware of the
existence of such
circumstances and acts
anyway
3. The existence of a particular
condition does not prevent
the intent from existing unless
the condition negatives the
harm or evil sough to be
prevented by the law defining
the offense.
a. Ex. Just b/c D will only
steal from the house if
no one is home doesn’t
negate the purposeful
intent of breaking and
entering to steal
(burglary).
4. Motive will usually be
irrelevant (ex. Euthanasia)
a. But special motives
may be relevant to the
existence of a defense
KNOWINGLY
1. Results: If an actor is aware
that it is practically certain
that his conduct will cause
such a result.
2. Conduct & Attendant
Circumstances: One acts
knowingly if he is aware that
his conduct is of such a
nature or that such
attendant circumstances
exist.
3. Diff b/t purposefully and
knowingly is D’s awareness
of the consequences of his
act.
4. Statutory or judge-made
presumption: may be used
to help prove that D acted
knowingly (Ex In D’s
unexplained possession of
stolen property gives rise to
presumption that D knew
the property was stolen).
5. If Stat attaches “knowingly”
to attendant circum of the
crime, usually the
requirement of knowledge
is applicable to all elements
STATE OF MIND
RECKLESSLY
1. A person acts recklessly if
he consciously disregards a
substantial and
unjustifiable risk.
2. D acted in a way that is a
gross deviation from the
conduct of a law-abiding
person.
3. D was subjectively aware
and ignored a substantial
and unjustifiable risk.
4. This is conscious risk
creation, but the
awareness is less than
substantial certainty.
(“Conscious disregard”)
5. Not like negligence
because the state of mind
is judged subjectively
NEGLIGENTLY STRICT LIABILITY
1. People are responsible 1. No culpable mental
for a gross deviation from state must be
the standard of care shown—it’s enough
(above tort standard). that D did the act in
2. D’s awareness of the risk question—
imposed by D’s conduct regardless of his
is not required mental state.
3. It would have to be 2. Same as in torts.
shocking to allow Δ to get Not acting
away with his reasonably under
carelessness. the circumstances.
4. Judged from an objective 3. No matter how
standard. careful you are, you
are responsible for
your dangerous
activities.
Prof. Rosen McMillan-McWaters 9
 ACCOMPLICE LIABILITY
A. Def.) One who aids, abets, encourages or assists another to perform a crime, Diff b/t Principals & Accessories:
will be liable for that crime.   Principals Accessories
B. TYPES OF ASSISTANCE
1. Physical: physically help with the crime Trial 2nd Degree may be tried Accessory CANNOT be tried, w/o
2. Psychological: encourage the person to commit the crime & convicted prior to the his consent, before the principal.
3. Failure to act when there is a duty: must be precipitated by some legal trial of the 1st Degree
relationship (parent/child) principal; or after 1st
C. Advantages for Accused/Disadvantage for Prosecution - B/c they shield Degree has been tried &
accessories from punishment notwithstanding overwhelming evidence of acquitted.
their criminal assistance.
D. Principals: 1st Degree (Perpetrators) - one who actually commits a crime Punishment 2nd Degree may be Accessory could not be convicted
either by his own hand, or by an inanimate agency, or by an innocent human convicted of a higher of a higher crime than his principal.
agent. At Common law was known as a principal in the 1st degree. There can crime or lower crime
be more than 1 perpetrator. Ex) 3 people can stab the victim. than the principal.
E. Accomplices: Jurisdiction No similar rule to Accessory can only be prosecuted
1. Principals in 2nd Degree (Aiders /Abettors) - one who is guilty of felony accessories ----> in the juris in which the accessorial
by reason of having aided, counseled, commanded or encouraged the acts took place, rather than where
commission thereof in his presence, either actual or constructive. People the crime occurred.
who did not physically commit the crime.
2. Accessories Before the Fact (Inciters) - one who is guilty of felony by Requirements Prove degree of  
reason of having aided, counseled, commanded or encouraged the of Evidence complicity
commission thereof, without having been present either actually or
Accomplice Mens Rea & Actus Reus
constructively at the moment of perpetration. They are not present at
the time the crime takes place. Not helping in any way when the crime Mens Rea Actus Reus
takes place, but are considered responsible for the crime.
Dual Intent - Actus reus of accomplice liability can take form
3. Accessories After the Fact (Criminal Protectors) - one who with
1. The intent to aid of solicitation of the offense active assistance in
knowledge of the other's guilt renders assistance to a felon in the effort
the primary party; the commission of the crime, encouragement of
to hinder his detection, arrest, trial or punishment.
and the offense, or failure to prevent commission of
F. What is impt about these categories is that the finder of fact has to
2. The intent that the crime if the secondary party has the legal
establish or find D has met the requirements in 1 of these roles.
such assistance duty to make such an effort.
G. POLICY: It is derivative liability. Not like agency law. You associate result in the
with a criminal venture. You & principal carry out common plan & commission of the

Prof. Rosen McMillan-McWaters 10

 therefore you are as liable as the principal. The principal's guilt
becomes your guilt. They are convicted of the substantive crime on
the theory that they were an accessory before the fact or after the
fact.
F. QUESTION TO ASK: Did the D perform an act make him a participant and did
the D have the required mens rea for the crime.
G. Theory of Intentionality
1. Policy Arguments:
a. That people otherwise lawfully conducting their affairs should not
be constrained by fear of liability for what their customers will do.
b. That it is proper for the criminal law to prohibit conduct that
knowingly facilitates the commission of a crime.
2. Intentionally acting to further the criminal actions of another, the
secondary party voluntarily identifies himself with the principal party.
The intention to further the acts of another creates liability under the
criminal law.
H. Elements of Accomplice Liability
1. State v. Hoselton – D convicted of entering w/o breaking a vessel with
intent to commit larceny. Gov’t had to prove that D had mens res, the
intent to commit the criminal activity. There is question as to whether D
was a look out for the act of his friends going on the boat, or crime of
stealing. Ct found D did not actively encourage or assist his friends in
stealing.
I. MENS REA: Intent: Purpose/Knowledge.
1. D must intentionally aid or encourage another’s mental state.
2. D must have the mental state necessary for the crime actually
committed by the other. Not enough that D simply brings about the
other party’s criminal act.
3. D knows that his conduct will encourage or assist another person in
committing a crime but does not intend or desire to bring about that
criminal result.
4. Courts and MPC hold that D is not liable.
5. People v. Lauria – D charged w/ conspiracy to commit prostitution.
HOLDING: You need to show intent or purpose. Knowingly helping
offense charged.
Limited circumstances, even though D knowingly helped prostitutes, he did not
have the requisite purpose to further prostitution to have your business join in
the criminal activity.
6. ANALYSIS: Did D & prostitute join together in a common plan to
commit a crime? NO!
7. FACTORS THE CT CONSIDERS:
a. The more serious the crime is the more likely the ct is going to find
you are liable when you provide assistance to the other perpetrators
knowing what they are going to do & you are willing
b. Direct evidence that the person is doing more than just selling
something. (Ex. Someone says they need a gun to kill someone and
you show them a variety of guns)
c. If you have a stake in the venture; making a profit (Ex. By charging a
crazy amount of money for the service)
8. Pure Model Penal Code of Mens Rea
i. Only guilty for those crimes in which you are part of the original
plan.
ii. Ex of this is Riley & Foster cases.
9. Riley v. State – D and another person fired a gun in a crowd & they were
wounded. Problem here is they don't know which one fired the shot. Ct
found D has to intentional aid. For conviction of the crime D must have
the mens rea of recklessness. This is the Dual Mens Rea Theory. 1)
Intentional Aid and 2) Recklessness.
10. State v. Foster – D didn’t personally kill. D supplied the knife & played a
major role. D had the mens rea requirement for the conviction of the
crime b/c he held someone against their will at knifepoint. Therefore, D
can be guilty of the crime b/c he has the same mens rea as the principle
for the crime/offense and the intention to aid Cannon.
J. NATURAL & PROBABLE CONSEQUENCES (Rejected by MPC)
1. State v. Linscott - Went to drug dealers house to rob him and the other
Prof. Rosen McMillan-McWaters 11
 someone is sufficient evidence to support a conviction. Under these
ACTUS REUS IN ACCOMPLICE LIABILITY
1. State v. Vaillancourt - He goes to house, ring door bell while talking to a
friend. The friend goes around the side of the house & tries to break in.
When the cops come, both the D & the friend flee. HOLDING: Accompanying
someone to a scene of a crime & watching is NOT a crime. RULE: Mere
presence alone w/ nothing else is insufficient to make one an accomplice to
a crime.
2. Aiding: assisting, supporting, or supplementing. Abetting: instigating,
advising, or encouraging—words alone may be enough
3. Presence at crime scene not required (requisite act may occur before or after
the crime)
4. Mere presence is not sufficient for AL—prosecution must show that D was at
the crime scene for the purpose of approving and encouraging commission
of the offense (but can be used as circumstantial evidence of AL)
 Undisclosed intention to aid is not sufficient.
 Mere presence plus flight is not sufficient.
5. Failure to intervene is generally not sufficient—unless a legal duty exists
6. Cheering while a crime occurs could be deemed to be encouraging one to
commit a crime
7. Attempting to Aid (Causation): If the assistance turns out not to be
necessary, D is still liable.
8. “But for” causation is not required. One only needs to aid, abet or procure—
not cause.
9. D will generally not be an accomplice if D’s acts are not necessary and do
not influence the crime at all. MPC 2.06(3)(a) makes this a crime.
10. If the principal does not attempt the crime, there is no liability.
11. If he attempts the crime and fails, some courts find liability.
12. The underlying crime must actually be committed by someone.
13. Wilcox v. Jeffrey - D charged w/assisting another in playing saxophone in
UK. To become an accomplice----We do require that you attach yourself to
the criminal activity in some way, by assisting or encouraging. It doesn’t have
to be much and doesn’t make a diff of whether the criminal activity would
have occurred or not.
guy killed the victim by shooting him. HOLDING: TC found D would not
have participated in robbery had D known the murder would take place.
Note that a jury (fact-finder) could have reasonably found otherwise. D
was still convicted b/c it was a foreseeable consequence of the primary
crime.
2. What you must prove under Natural & Probable Consequence
a) Must show that the principle committed the primary crime
b) That the accomplice was aiding & abetting the primary crime
c) Did the principle acting with the mens rea commit a 2 nd dary crime?
If yes, & it occurred during the joint primary activity, then the
accomplice is guilty of the secondary crime if the secondary crime
was a reasonable foreseeable consequence of the primary crime.
Distinguishing Direct from Accomplice Liability (Bailey) If no criminal act was
committed, one may not be an accomplice, but still may be a principal. If one
uses an innocent agent or an innocent instrumentality. If an intervening act is
reasonably foreseeable, it will not break the chain of causal connection between
the original act and the subsequent injury.
Limits to Accomplice Liability
In Re Megan – D goes to ex gf house to have sex with minor. Gov’t attempts to
hold victim liable for burglary. Victim is guilty of the crime under strict liability,
however, Ct finds the legislative intent of statute was to protect victim not
punish.
Abandonment General Rule - is that once you attach yourself you must make
the withdrawal effective.
People v. Brown – D attempted to burglarized house by kicking in door. D tries to
argue that he voluntarily abandoned the crime, but Ct holds he did not do so in a
timely fashion b/c they had already kicked in the door.
Proving Complicity: Accomplice testimony must be corroborated by indep.
evidence in order to sustain a D’s conviction. Thus, if analysis shows that the
status of the other parties is accomplices, it’s insufficient. Most states have a
rule similar to this corroboration rule OR else require a jury instruction
cautioning jurors to treat the testimony of accomplices w/ a cautious eye.
Vicarious Liability Commonwealth v. Koczwara – D ran tavern. RULE: Employer
can’t be imprisoned unless he approves/consents to acts, but can be fined
Prof. Rosen McMillan-McWaters 12
 under respondeat superior for the crim acts of his employees committed on his
premises w/o his presence, participation or knowledge. Strict liability
eliminates mens rea; Vicarious Liability eliminates both mens & actus reus.

CAUSATION
A) Causation plays a more limited role in criminal law than in tort law. Most crim cases do not require causation.
B) Two Basic Concepts of Causation
1. But-For
a) But for the d's acts the crime would not have occurred
b) Limit on but-for
2. Proximate Causation
a) In some cases the D will not be held criminally liable even when but-for test is met.
b) Def) Assuming that but-for test is it just to hold D liable for causing the harm. It is a policy determination.
C) ACTUAL CAUSE
1. Oxendine v. State - This is a but-for cause case. D beat child after gf pushed child in tub. States Theory was that D's beating caused the victims death to
accelerate. State's expert testimony stated only possibility that D's action caused the death and this was not enough. Ct says that based upon the expert
testimony there was insufficient evidence to show that the D's blow was a but-for cause of the child's death. This is a case where procedure means everything.
At the time the State closed their case there was no evidence that D's blow contributed the acceleration of the victims death. Note: D's motion was made
before the Co-D put up their expert.
D) PROXIMATE CAUSE ("Legal Cause")
1. Kibbe v. Henderson - D and co-D, met guy at bar, offered him a ride & then robbed victim leaving him in the street where he was hit by car. Ct found D was
deprived of D/P b/c at trial judge failed to explain to jury the issue of causation. Is there but-for causation? Yes, but for the D's act the victim would not have
died the way he did. The drive was violating the law by speeding. D argues that there was an intervening act & that act caused the death and if the other
driver had not been speeding the victim would not have died. D argues that he didn't get a jury instruction on causation or intervening cause at TC.
 D argues that the test that should have been used is:
 Whether or not intervening cause was foreseeable
 Was the result too remote/accidental to hold the D liable.
 HOLDING - TC violated D/P b/c didn't give the D opportunity to defend on causation.
2. Velazquez v. State – D & victim were drag racing. Ct says the victim died recklessly and not going to hold the D guilty
3. State v. Rose – D charged w/ leaving the scene of accident & manslaughter. D hit victim w/ car & body was dragged under car. Ct rules that b/c you can't show
a negligent act killed him, there is no way to show jury beyond a reasonable doubt that the culpable act caused the death. Not enough to show that it could
have caused the death. Can't show but-for causation.

Prof. Rosen McMillan-McWaters 13

 CRIMINAL HOMICIDE
A. HOMICIDE
1. MURDER: (Def.) - unlawful killing of another person w/ malice
2. Lawful Homicides: Death Penalty, Killing during war, Abortion, etc
3. Elements of Murder:
a. Actus Reus: Conduct by the D either an affirmative act or an
omission by D where he had a duty to act.
b. Corpus delecti: death by the victim (although prosecution does
not have to present a corpse)
c. Mens Rea: D must have the requisite mental state for murder
—“malice aforethought”, but this is a term of art which can be
satisfied by several other mental states (below)
d. Proximate Cause: there must be a causal relationship between D’s
act and V’s death
 Most states continue a common-law PC rule that applies only in
murder cases: V must die within a year and a day of D’s conduct
EXAM TIP: anytime D can be said to have killed V, go through all types of
murder before concluding that no murder has occurred!
B. Malice (def) - unlawful, unjustifiable, intentional killing. One with a mental
state that the court thinks is a bad as an intentional killing.
C. Malice Aforethought - 4 constituent states of mind
1. Intent to Kill - awareness that the death of another would result from
one's actions
2. Intent to Cause Grievous Harm - knowledge that one's conduct would
cause seriously bodily injury
3. Depraved Heart Murder - unintentional homicide under circumstances
evincing a "depraved mind" or an "abandoned & malignant heart."
E. INTENTIONAL KILLINGS
1. 1st Degree Murder: killing that is premeditated and deliberate. Without
premeditation and deliberation, one can only be guilty of second-
degree murder.
a) Premeditation: About time. Did the actor have sufficient time to
think about what they were doing? Only a short time needed (5
minutes is enough); Ex.) Planning activity (i.e. purchasing a
weapon); Evidence of motive; A manner of killing so precise that it
suggests planning
b) Deliberation: About the quality of your reflection. If you are so
angry that you cannot think straight, have you deliberated?
Heat of passion Ex.) Intoxication can negate
deliberation/premeditation
c) Willful: Mens rea element. Did you have the required mental state
to perform the act.
d) Malice aforethought: Can be satisfied by a number of means: (1)
Intent to kill, (2) Intent to commit grievous bodily injury, (3)
Reckless indifference to the value of human life, (4) Intent to
commit certain non-homicidal offenses.
e) All of these factors can, and usually will, be proven by
circumstantial evidence.
f) The intent to kill need only be present for an instant. (Schrader)
g) Now, there is usually some period of reasonable time required
between the formation of intent and the killing itself.
h) “Opportunity for reflection”-Must kill purposefully after
contemplating the intent to kill.
F. Second Degree Murder:
Prof. Rosen McMillan-McWaters 14
 4. Felony Murder - assigns Strict Liability for homicide committed during
the commission of a felony.
D. Manslaughter (def) - unlawful killing of a human being w/o malice
1. Voluntary - An intentional homicide committed w/o malice. Upon
sudden quarrel or heat of passion
a) This was a way to shield some D's from the death penalty.
b) Way to understand this, is even though D acts with the intent,
there are mitigating circumstances present that would justify the
lesser offense.
c) Concept of mitigation, not excuse
d) D is still guilty of a felony, but b/c of mitigating circumstances
2. Involuntary - In the commission of an unlawful act no amounting to
felony, or in the commission in an unlawful manner, or w/o due caution
& circumspection, of a lawful act which might produce death.
G. VOLUNTARY MANSLAUGHTER: Heat of Passion Killings
1. (Def) Intentional homicide committed w/o malice (basically, b/c of
extenuating and mitigating circumstances)
2. Common Law Juris: “Heat of Passion” Four Requirements:
a. Acts in response to a provocation that would cause a reasonable
person to lose his self-control,
b. Acts, in fact, in the heat of passion,
c. Lapse of time is so great that a reasonable person would not have
“cooled off”, and
d. He has not in fact cooled off,
e. Causal connection between the provocation and the killing.
3. MPC sec. 210.3 (pg 1012)Says a D will get manslaughter if the murder
was committed under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation or excuse.
4. RULE OF PROVOCATION
a. There must have been adequate provocation
b. The killing must have been in the heat of passion
c. It must have been a sudden heat of passion--killing must have
followed the provocation before there had been a reasonable
opportunity for the passion to cool off
1. No premeditation
2. If it was D’s intention to injure, but not to kill.
3. Cases with a reckless indifference to human life.
4. Note: The jury can return a verdict for a lesser crime than instructed, but
never for a greater crime
I. INVOLUNTARY MANSLAUGHTER
1. (Def.) An intentional killing done w/ either reckless OR criminal
negligence. However, where the killing results from such disregard and
recklessness as to constitute the malice necessary for “intentional
killings,” D may be charged w/ murder.
2. Two Categories:
a) Misdemeanor Manslaughter -Punishes people who kill somebody
unintentionally during commission of unlawful act which is not in
the covered under the murder felonies (Ex. Speeding, assault)
b) Killing done in lawful act done by recklessness or gross negligence.
Unlawful killing w/ culpable mental state which falls short of
malice.
 Recklessly is where D is aware of risk of death & consciously
chooses to ignore it showing a gross deviation from standard
of care.
3. Sometimes that when you kill someone unintentionally but you are
acting so wanton and reckless that we are willing to treat you as if you
were acting with malice.
4. MPC: Requires that D act recklessly MPC - murder if its committed
recklessly under circumstances manifesting extreme indifference to
human life.
a) A gross deviation from the standard of conduct that a law-
abiding person would observe in the actor’s situation.
b) Considered in light of all of the surrounding circumstances.
5. Implied malice: When no considerable provocation occurs or when the
circumstances show a maligned heart.
a. Malice may be implied when D deliberately does an act with a high
probability that will result in death and does it with a base antisocial
motive.
Prof. Rosen McMillan-McWaters 15
 d. There must have been a causal connection b/t the provocation, the
passion, and the fatal act.
5. Reasonable Provocation:
a. D’s act must be in response to a provocation that is:
a. Sufficiently strong that a reasonable person would have been
caused to lose his self-control; AND Strong enough that D
himself lost his self-control.
b. Characteristics of the reasonable person: Physical
characteristics have sometimes been allowed, but emotional
characteristics have almost never been allowed.
6. 4 Situations Which Are Recognized as Adequate Provocation:
a) Discovering your spouse having sex w/ someone else;
b) Engaged in mutual combat; AND
c) Assault and battery (having been subjected to assault and batter
by the victim)
d) Authority recognizing injury to a family relative or third party,
and death resulting from resistance of an illegal arrest as
adequate provocation for mitigation to manslaughter.
7. Manslaughter “defense”: (broadens defense)…If D can show that he
acted under the influence of an extreme emotional disturbance for
which there was a reasonable explanation or excuse, this may reduce
murder second to manslaughter. The extreme emotional disturbance”
defense in the MPC is an “outgrowth” of the “heat of passion” defense
found in common law, but is considerably broader. It eliminates entirely
the provision which required that there be no cooling off period btw the
provocation and the actions which caused the death.It also eliminates
the analysis of whether D was adequately provoked.
8. 2 Separate components (2): (subjective & objective)…
a. Act must actually been done in state of “extreme emotional
disturbance” from D’s p.o.v. & circumstances
b. Whether there was a reasonable explanation or excuse for
emotional disturbance.
Both defenses do NOT overlap completely… Ex: “mutual combat” is a sufficient
requirement to bring about the issue of “heat of passion” BUT it would NOT
6. State v. Williams - Parents did not seek med attention for child and it
died. Ct says that you only convict if person in ordinary caution would
have acted to get medical care.
7. Actual Awareness of the Risk:
a. Likely to turn on a reading of the statute.
b. If the state only required ordinary negligence, D can be liable even
though he is unaware of the risk. (State v. Williams)
c. If gross negligence or recklessness is required courts usually
require actual awareness.
8. The death must be a proximate cause of D’s conduct for liability to exist.
J. Ways of Limiting Felony Murder
1. State v. Sophophone - Victim killed by police during D’s & victims
burglary. D is handcuffed when the killing takes place. HOLDING: Ct says
the D is not criminally responsible b/c the felony murder rule does not
apply if the person who directly causes the death is a non-felon.
2. Broad Felony Rule - applies to accidental or unforeseen death which
occurs in the course of a felony.
a. Under this limitation it focuses on who does the killing…NOT WHO
GETS KILLED
b. If a police officer shoots a innocent person or speeding to scene &
kills an innocent person the D is not guilty of felony murder under
these situations. What matters is whether the killing is done by D
or one of the people acting in consonant with the D.
3. Inherently Dangerous Felony: If a felony isn’t inherently dangerous, it is
highly improbable that the potential felon will be deterred.
4. Merger Limitation: FRM is inapplicable to felonies that are an integral
part of and included in fact within the homicide.
5. Would preclude the jury from considering malice aforethought.
6. Can still apply if the felony was committed with an “independent
felonious purpose.”
7. FMR does not apply to homicide categories, assault, battery, burglary
committed in order to assault b/c it would degrade legislative intent in
grading homicides. Burglary can still be applied to the FMR.
Prof. Rosen McMillan-McWaters 16
suffice to establish “extreme emotional disturbance.”
Split Jurisdiction concerning whether the defense of heat of passion OR extreme
emotional disturbance applies in situations where D kills a person that DID NOT
provoke them.
Most courts are moving towards just analyzing the mens rea (and not
categorizing these factors)
Diff b/t “second degree murder” v. Voluntary manslaughter: Secondary murder
requires malice. Voluntary manslaughter is murder 2nd “BUT”…(“but” is the
mitigating circumstances; killing is “intentional,” but there are circumstances in
which we don’t want to attach the same level of culpability)
H. FELONY MURDER
1. In relation to the killing it is a STRICT LIABILITY CRIME!! If an accomplice
encourages or attaches themselves to crime, they are guilty of felony
murder.
2. POLICY Why have Felony Murder Rule:
a) As a deterrence from committing a crime.
b) It makes prosecution easier to convict people of murder
c) Intended to make people be more cautious when they commit a
felony
d) To minimize perjury--makes it harder for liars to get out of a murder
conviction by saying that they didn't intend to do or that they didn't
have the requisite mens rea.
e) Generally people who commit felonies are not good people so if
you decide to commit a crime, society is ok to say that we don't
care what your mental state was and we justified in convicting you.
By hypothesis felons are bad indiv's, so are comfortable elevating
you up to murder.
8. In the Perpetration of a Felony Time: If a killing occurs while the felons
are attempting to escape, it will be in the commission of a felony.
9. Agency Approach: FMR does not apply if the person who directly causes
the death is a non-felon.
(Felony murder con’t)
People v. Fuller – D charged w/ killing an innocent bystander during police
chases caused by D committing burglary. Felony murder applies when D’s
attempt to commit felony & lasts to immediate flight.
People v. Howard – same facts as above. Ct looks at whether speeding is
inherently dangerous to human life to decide 2 nd Degree felony & finds you can’t
convict based on this. Possible to convict D on theory of D drives recklessly and
kills someone, to show malice you could argue a blatant disregard for human life
or depraved heart by wanton disregard for the life of another.
People v. Robertson – D kills man trying to steal his hub caps. Fires gun to scare
victim. Discharging the gun negligently is the predicate for the felony.
a. Merger Doctrine
 When is Merger Doc applied? You need to have an
independent felony otherwise than an assault on the victim.
General Rule: that if you assault someone, that cannot be the predicate for
felony murder b/c we assume that the legislative hasn’t intended this.
K. ACCOMPLICE LIABILITY & FMR
1. All co-felons will be liable for the accidental killing committed by one of
them if it was in furtherance of the felony.
2. If it was not in the commission of the felony, the co-felons will be able to
escape liability.
Prof. Rosen McMillan-McWaters 17
 CAPITAL PUNISHMENT
A. CP is thought to be reserved for the most deserving killers. Historically,
capital punishment was mandatory for murders. Now we limit the class of
people who are eligible for capital punishment. Decision to impose death is
left to the discretion of the judge or jury.
B. Furman v. GA (1972) -5-4 vote, the Ct throughout that death penalty as
currently imposed in this country violates the cruel & unusual punishment
clause of the 8th Amendment. All 9 justices wrote opinions.
3. Justice Stewart - Being executed is arbitrary and capricious he found
that it violated the 8th Amend.
4. Justice White - DP is a deterrent but it can only be a deterrent if more
people are executed.
5. Justice Berger (dissent) - said that this does not end the death penalty.
Only 2 find it Unconstitutional. There are ways to meet the concerns of
Justice Stewart & White. You can satisfy White by giving mandatory
death penalty in certain cases.
C. CONSTITUTIONAL & POLICY DEBATE
1. Gregg v. Georgia - This case sets the perimeter for the DP. Issue: If the
DP can be imposed consistent w/ 8th Amend & whether GA’s system of
imposing DP passes Constitutional muster. GA Death Penalty System-
has guilt/innocent trial. If D is convicted of murder there is a 2nd trial
and the jury hears evidence in aggravation and mitigation and cannot
impose the death penalty unless 1 aggravating circumstance is found. Ct
says GA DP is not a violation by using gross & proportionate test of
excessiveness
2. AGGRAVATING CIRCUMSTANCE --killing a police officer, killing to avoid
arrest, murder is esp heinous or cruel, age of victim, helpless victim,
manner of the killing, felony murder, etc. (Prosecution proves
aggravating circumstance/Defense puts up mitigating circumstances
2. DP may NOT be imposed for rape of an adult
3. DP may NOT be imposed on D’s who are minors at time they commit
offense.
4. Cannot execute D who is mentally retarded OR insane at time when
D commits offense OR at time of execution.
5. F-M rule--major participation…
b. Major Participation--in the felony committed combined w/ reckless
indifference to human life is enough to supply culpability necessary
to constitutionally impose the DP.
F. VICTIM IMPACT EVIDENCE
1. 8th does NOT prohibit victim impact evidence at sentencing phase of a
capital trial. However, prosecutor can’t introduce evidence to jury about the
deceased wishes or belief about the DP.
G. CATEGORIES FOR ACCOMPLICES & DEATH PENALTY:
1. Accomplices having intent--they can receive DP under f-m rule.
2. Accomplices that are major participants--they can receive DP under f-m
rule.
3. Accomplices that are just “drivers” for instance--they CANNOT receive DP
under f-m rule.
4. Tison v. Azizona – Family prison break. Sons can get DP as accomplices.
H. ISSUES W/IN DEATH PENALTY
1. Quality of Defense- places there is a $2k cap, places trouble getting
good atty's taking capital case, not well paid, not very popular.
2. Problem of Innocent people on death row and how to sort this
3. Underlying issue of race--majority of people on death row in NC are
African American or people of color. McClesky v. Kemp – Black man kills
white officer. Ct says can’t accept raw data b/t flood of similar evidence.
I. 4 VIEWS ON CAPITAL PUNISHMENT Scalia & Thomas - death penalty is
Prof. Rosen McMillan-McWaters 18
 (childhood abuse, etc) to rebut)
D. Ct has struck down the “mandatory” DP system,
E. SUBSTANTIVE PROHIBITIONS
1. Jury must make determination; NOT judge--but NOT all states require
consideration of aggravating/mitigating facts.
RAPE & SEXUAL ASSAULT
A. RAPE DEFINITION
1. It is the intercourse of a woman by a man, forcibly against her will, and
by force or threat of force (constructive force).
a. Against will is also articulated as "w/o consent"
3. There are other types of rape:
a. Statutory rape - sex with underage person whether w/consent or
not.
b. Crimes - Having sex with someone when they are unconscious,
physically helpless, incapacitated, etc.
c. Crime for custodians to have sex with someone under their care
even if it is consensual. Some States its illegal for teacher to have
sex w/ their student.
d. Sexual assault - violation of the body not involving intercourse.
B. FORCE & NONCONSENT
1. State v. Alston – Elements of rape: Vaginal Intercourse, w/another, by
force, against will.
2. Rusk v. State - Victim met D at the bar. Under this statute, victim is
required resist or show she was prevented from resisting in order to
convict for rape.
3. Commonwealth v. Berkowitz - 2 college kids who end up having sex
after she came into his room looking for someone else. Elements of rape
under PA: sexual intercourse w/ someone not your spouse by forcible
compulsion. HOLDING: Not consensual sex but there was not enough
evidence of force to show that this was rape b/c of size of victim & D.
4. State of NJ v. MTS – Victim goes to bathroom she & 17 yr old in her
room. TC finds that there was no consent. Ct App reverses D’s conviction
Constitutional. DP per se is Unconstitutional (Brennan & Marshall) on moral
& religious grounds, cruel & unusual. Kennedy & O'Connor - need to do our
best to rationalize & regulate DP and once we do this we have to accept that
the death penalty is Constitutional. Blackmun & Powell - done our best to
regulate, but we just can't do it well enough to say that DP is Constitutional.
E. FORCIBLE COMPULSION: Once you show forcible compulsion then there is
no resistance requirement. Ex.) If guys says get on bed or I'll kill you then
resistance by the victim is not required.
F. WITHDRAWN CONSENT
1. People v. John Z. - Ct says it is forcible rape b/c it you w/draw consent &
D's continue w/ using force or threat of force then its rape.Dissent
argues there is insufficient evidence that there was force. Doesn’t see
any indication that con't sexual activity was done by force.
G. MENS REA
1. Commonwealth v. Sherry – 3 Dr’s are found guilty of raping a nurse. D's
wanted a jury instruction at trial that they had a good faith mistake that
nurse consented. D’s arguing for mens rea of Purpose & knowledge. Ct
says we will allow a defense of mistake in this case. It has to be a
reasonable mistake.  
EXAM TIP: Rape is a general intent crime so you only get a defense if there is a
reasonable honorable mistake. In MPC rape is a recklessness crime. Being
aware of a substantial justifiable risk.
H. RAPE SHIELD LAWS
1. Enacted to protect victims from having their entire sex history revealed.
To minimize victims from unnecessary harassment & embarrassment.
Limited by Constitutional guarantees for Crim D's under 6th Amend
Confrontation Clause.
2. Balancing Test: in which the State's interest in enacting a statute is
weighed against the D's Con interests. Cts are required to interpret
rape shield statutes in a way that does not violate the D's Con rts to
Prof. Rosen McMillan-McWaters 19
 Traditional Common Law Rule: Need to have additional force beyond
sexual act for something to amount to rape. Under this ruling, in order to
get a rape conviction, Prosecution has to show an offensive touching that
involves sexual penetration then it is a rape. It does not require an
additional force beyond the act of unwanted sexual penetration. NOTE:
If D is mistaken about whether permission is granted, does D have a
defense of reasonable mistake.
C. RAPE BY FRAUD OR NON-PHYSICAL THREATS
1. Boro v. Superior Court - Guy tells victim that she has a rare disease &
that it can be cured by having expensive surgery or pay to have sex with
someone who has been cured for the disease.
 State relies on 2 theories: Sex out of force or fear (this is dismissed
b/c D did not use any force or threat of force); This is rape by fraud
b/c victim is unaware of the nature of the act.
D. STATUTORY RAPE
1. Only 3 juris where there is a Mens Rea requirement for statutory rape
2. Usually age diff component of the statute.
 Ex.) NC has to be a 4 yr age diff b/t person being charged with the
crime & minor.
present evidence about a relevant matter. Rape shied keeps irrelevant
info. Rape shield shifts the assumption away, now D has to show why it
is relevant to a fact in issue in the case.
3. POLICY:
a) Prevents D from harassing and humiliating the complainant w/
evidence of either her reputation for chastity or of specific prior
sexual acts.
b) This type of evidence generally has no bearing on whether the
victim consented to sexual conduct with the D at the time in
question
c) Exclusion of the evidence keeps the jury focused only on issues
relevant to the case.
d) Law promotes effective law enforcement b/c a victim will be more
readily report & testify in sexual assault cases if she does not fear
that prior sexual conduct will be brought before the public.
4. People v. Wilhelm D is charged w/ rape & wants to show that victim
showed herself to other men in the bar.Ct holds that the evidence can't
come in b/c it is irrelevant. How she behaved w/ others is not relevant
in whether she was raped by D. What is D's argument? The fact that
she exposed herself to others close in time to the alleged rape, shows
that she has loose sexual nature
Prof. Rosen McMillan-McWaters 20
 GENERAL DEFENSES
A. Hypo: John & Fred tied together w/ rope. F is more experienced climber.
He slips & falls and pulls J down with him. F is going to die. J either cuts
the rope & hastens that death or he dies too. So J cuts rope & F falls to
death. Would F have died as he did & when he did if J had not cut the
rope? No, not at that point. So we hasten the death which is usually
enough for liability. Did J intend or know he was going to cause F to die?
Yes. J had the mens rea. What would J be guilty of that he killed
someone with certainty that they were going to die? 2nd Degree
Murder. J acted w/ malice which is not ill will. Why don't we want to
punish J? B/c J would die if he had not cut the rope so we don't want to
punish him. There are factors that come out of our usually analysis &
therefore we don't want to punish. Some things that happen that change
our mind about what we as a society wants to do.
B. Affirmative Defenses
1. Def.) All elements of the crime are satisfied but there are other
factors that come into play where we don’t want to impose liability.
This is diff than mistake. When the categories are insufficient to
send some justice so we feel we need to consider outside factors.
C. Element of Proportionality
1. Def.) Relationship b/t harm avoided & harm that is cause.
2. Ex.) Same hypo as above, except J doesn't want to bruise his arm and
is aware that F would die, but cuts rope to avoid injury. We want to
punish him b/c the harm caused is greater than the harm avoided.
D. 3 Principles To Decide Whether to Punish in SELF DEFENSE (ANALYSIS)
1. Who is at fault? Is the D at fault? Who caused the harm?
a. D should not be the aggressor or acting unlawfully
2. Whether the action is necessary? Is there a reasonable alternative?
a. D can only use the amt of force reasonably necessary to avoid the
amount harm. Can't shoot someone that slaps you.
b. Defenses are articulated diff in diff juris. Almost all of the rules that
apply to these defense have to do with 1 or more of the above
principles.
E. Burden of Proof on Affirmative Defenses
1. State prove every essential element beyond reasonable doubt Winship
2. Is it Constitutional for State to put burden on D for self defense? It
depends on state law.
a) Ex.) NY says that murder is an intentional killing and if D claims self-
defense, then D has the burden to prove they were acting in self-
defense.
b) Ex.)NC requires that in order to convict someone of murder it has to
be an unlawful killing, so State has to prove there is no self-defense
if that issue is raised by the D.
F. DEFENSE OF OTHERS
1. (Def.) - Defense of other theory is available only if a person acts to
prevent unlawful bodily harm against another.
2. Elements of Defense of Others: Reasonable belief that someone is
being threatened & you need to intervene for the protection of a 3rd
person & that person you are protecting would need to use a
reasonable amt of force to protect them. You can't act unless there is a
perceived necessity and can only use a reasonable amount of force.
3. Common Law - Defense of others at your on risk so if you were wrong
then you could be prosecuted.
4. Majority View: You get defense of others so long as you reasonably
believe that you are protected a person and if you are wrong then it
Prof. Rosen McMillan-McWaters 21
 (Modern Common Law: RETREAT DOCTRINE – NO DUTY TO RETREAT doesn't matter (Ex. Cop/Robber hypo)
a. D can only act in self defense in order to prevent imminent 5. People v. Kurr Pregnant D kills bf w/ knife & b/c he is punching her.
bodily harm or death. RULE: Ct says fetus is included as "others" for the purposes of defense
3. Whether harm actually caused is proportional to the harm avoided. of others using the Fetal Protection Act as their rationale.
G. SELF DEFENSE
1. Def.) For a D to prevail on self-defense, he must have a reasonable belief (subjective) that such reasonable force was necessary to defend himself OR 3rd
person from imminent and unlawful force by another. D’s beliefs must be objectively reasonable in light of the surrounding circumstances (objective).ALL
facts and circumstances known to a D, including those known prior to the incident and the gender & sizes of persons involved, should be considered when
deciding if D’s belief was reasonable.
2. There is NO self-dense in a f-m prosecution; when you commit a felony, you lose your right to self-defense.
3. Self defense is both a justification and an excuse. Justification- situation ends up better than it otherwise; Excuse - something bad happens but we don't
want to blame anyone.
4. US v. Peterson D kills robber who comes after toward him w/ lug wrench. Could argue that D reasonably believed that it was necessary to protect himself.
If someone is coming after you with a lug wrench can you shoot them its proportional to respond w/ deadly force b/c D could reasonably believe that it
was necessary to kill in order to protect himself. RULE: Even if you are at fault at one point you can free/purge yourself as the aggressor if D had turned
around & went back to the house and Keitt continued to come at D with the lug wrench. Why does D say he did not have to retreat? B/c it was his home.
A man does not have to retreat in his own home. RULE: Ct says the castle doctrine doesn't apply b/c D was the aggressor.
5. Common Law Elements of Self Defense
a. Must have been a threat, actual or apparent of the use of deadly force against the defender.
b. Threat must be unlawful & immediate
c. Defender must believe that he was in imminent peril of death or seriously bodily harm.
 Imminent describes such perceived threats of death or great bodily harm as will justify a homicide by reason of self defense has been defined
as immediate danger.
 Application - the evidence in this case tends to show that the D (reasonably /did not reasonably believe depending on facts of exam) was
confronted by a threat of imminent death or great bodily harm.
d. Defender's response was necessary & proportional
e. Defender is not at fault or the aggressor. Did not provoke the conflict.
6. Reasonable Belief Requirement
a. People v. Goetz - D shoots 4 teens in subway in NYC. What is NY law on self defense? When are you allowed to use deadly force? Defending yourself
or reasonably believe kidnapping, rape, or robbery. What is D complaining about? The instruction that D's conduct was that of a reasonable man.Why
did lower court throw out instruction? B/c they used a totally subjective approach and jury was instructed on the reasonable person. NY follows MPC
and it uses a relatively subjective test: MPC says you look to see if the person was negligent in believing that self defense was necessary then he is only
guilty of negligent homicide. If he was reckless then he can only be guilty of reckless homicide. You use the same mens rea. What facts could jury
consider? That D had been previously robbed, racial profile (this quest is left lingering)

Prof. Rosen McMillan-McWaters 22

 b. Common law: bystander gets killed. You get right to self-defense so long as you reasonably believe you were acting in self defense and the force
used is not excessive. (Same outcome in MPC)
c. MPC: A D charged w/murder need only show that he believed that the use of deadly force was necessary to protect himself against death, serious
bodily injury, kidnapping or forcible sexual intercourse to prevail on self defense claim. Depending on your state of mind as to self defense you can
be guilty of negligent homicide or reckless homicide, whereas in NY if you have self defense then you are acquitted.
7. State v. Wanrow – D kills an alleged child molester at neighbors home. D is complaining that the Jury was instructed to consider only the immediate danger
and they kept talking about he. What's wrong w/ instruction on immediate danger? Victim didn't have any weapon & was not threatening at the time. Ct
says this is too narrow and should widened so jury should consider the surrounding facts & circumstances that led up to the act known to the Defendant.
Quest: Was it reasonable for D to believe that there was a threat at the time? HOLDING: Ct says jury said the instruction was given like 2 men were having
a fight & didn't look at what a woman would do. Ct says you have to ask: Would a woman in D's situation, knowing what she knows about the victim, act
in a diff way given the relative size & strength of the persons involved. This is a subjective standard of the reasonableness of the D's apprehension of
danger. Jury instruction will likely be: you will consider the age, sex, & past experiences of the D. Not the reasonable man. This would be a question of law
& fact for the jury. Under NY law they are much more willing to send it to the jury, but the judge is a gate keeper (Ex. If it’s a 300lb man and 150lb man it
may not get to the jury.)
8. State v. Norman(Ct. App) D kills husband in his sleep b/c of ongoing abuse. Self Defense: the right to kill in self-defense is based on the necessity, real, or
reasonably apparent, or killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. For that reason, our law of
self-defense has required that a D claiming that a homicide was justified establish that she reasonably believed at the time of the killing she otherwise
would have immediately suffered death or great bodily harm. The imminence requirement ensures that deadly force will be used only where it is
necessary as a last resort in the exercise of the inherent right of self preservation.
 Arguments Atty General for upholding the conviction: She had alternative, she could have left home. She was not in immediate danger b/c he was
not in the process of attacking her and therefore she can't use self defense. She could have avoided this killing
 Arguments for the Defense for reversing the conviction: Although threat needs to be imminent, one definition of this word is that its going to
happen and its reasonable that she believed he was going to kill her. What were her reasonable alternatives: run away (is she putting herself in more
danger, threats to her family, she has run away before & he has found her), call the cops, wait until the moment he was attacking her, etc. Why does
she need to wait? For example if you were kidnapped and the kidnapper said they were going to kill you the next day, would you need to wait until
then to kill them & try to escape? If she waits for him to wake up and shoot him, she risks that she might miss him or the gun locks, then she is likely
to be killed. You have to look at whether she is to blame for being there at that time & shooting him. Rosen says she didn't have an alternative
H. DEFENSE OF PROPERTY
1. Hypo: Someone tries to steal your car? Can you push them away? Yes. Can you blow them away? No
2. Rule: Allowed to use a reasonable amt of force as necessary to protect your property. As a general rule we don't allow deadly force to protect property.
3. EXCEPTION: Robbery is different b/c its taking property by force, so you can use deadly force in a robbery.
4. People v. Ceballos - D lives in house above garage. Someone breaks into garage & steals tools so he sets up a spring gun. Assuming D had a right to shoot if
he was present, was he justified to have a spring gun? No b/c the spring gun you can't make the decision of whether it was necessary or not. Spring gun in
dangerous instrumentality that could kill children, police officers, etc.

Prof. Rosen McMillan-McWaters 23

 5. POLICY: Allowing persons to employ deadly mechanical devices imperils lives of children, policemen acting w/in the scope of their employment & others.
6. Common Law : you can shoot about any unlawful intruder. All that is required is that D reasonably believe that intruder was trying to unlawfully enter their
home and deadly force was necessary. Hypo: Drunk neighbor is confused & tries to get into your house, under old Common law you can use deadly force.
7. Modified Common Law: you can use deadly force if you reasonably believe that someone was coming inside to commit a felony or cause injury.
8. NC Law: lawful occupant in home can use any degree of force, including deadly force to prevent an intruder, if the occupant reasonably believes that
intruder is going to commit a felony.
I. NECESSITY
1. 3 Essential Elements to this defense are (3): Common Law
a. Must actually believe that his conduct is necessary to avoid an evil. If there are reasonable alternatives then it probably was NOT necessary
b. necessity must arise from an attempt to avoid an even greater harm; AND D’s actions must be weighed against the harm reasonably foreseeable at the
time, rather than the harm that actually occurs.
c. The“balancing of evils” is objective.
2. MPC Different Approach… Rejects imminence requirement of common law, D does not automatically lose defense if at fault for creating situation. Defense
not limited to emergencies created by natural forces, physical harm to persons or property, and may be employed in homicide prosecutions.
3. Nelson v. State D used Highway Dept yard equipment to try and free his truck that was stuck in mud. As a matter of law even if believed is insufficient, the
judge can refuse to give an instruction.
4. RULE: Defense of necessity may be raised if the D's actions, although violative of the law, were necessary to prevent an even greater harm
5. POLICY/RATIONALE: The law ought to promote the achievement of higher values at the expense of lesser values, and sometimes greater good for society
will be accomplished by violating the literal language of the criminal law.
6. US. Schoon - D's protested IRS office b/c of US involvement in El Salvador. RULE: Will never allow civil disobedience is not going to be a necessity defense.
Harm is too remote, lack of causal relationship b/t disobedience, there is always an alternative.
7. Defense of Murder
a. Queen v. Dudley & Stevens - According to jury's finding in this case D & co-D that they would have died of starvation had they not ate young boy.
Necessity to kill him? Yes, b/c it was reasonable for D's to believe that it was necessary and they were not at fault for bringing this about. Argument
that a life to save 3 might be proportional. There is one life being sacrificed to save 3. RULE: This court says - we don't think we are comfortable
saying that you can murder another person who is not an aggressor just b/c it was necessary to save your life.
J. DURESS
1. (Def.) Excuse usually in response to human forces) Duress (coercion) traditionally arises when someone unlawfully commands another to do an unlawful act
using the threat of death or serious bodily injury.D’s is essentially claiming that threats overwhelmed her will so that her inability to make the “correct”
choice should be “excused.” (As opposed to necessity where D claim to have made the “correct” choice)Duress cannot justify an intentional killing--i.e., NOT
a defense to murder.
2. U.S v. Contento-Pachon – D smuggled cocaine b/c drug dealer said he would kill his fam.
3. ELEMENTS OF DURESS:
a. Immediate threat of death or serious bodily injury. Requires that there be some evidence that the threat of injury was present, immediate, or

Prof. Rosen McMillan-McWaters 24

 impending.
b. A well-grounded fear that the threat will be carried out. A veiled threat of future unspecified harm will not satisfy this requirement.
c. No reasonable opportunity to escape the threatened harm. D must show that he had no reasonable opportunity to escape. Look for physical &
mental restraint.
4. HYPO: Most cts will not allow the defense if the D is part of the on-going role in drug dealing organization. If you are at fault for putting yourself in the
position to be vulnerable to the threat.
5. MPC - “Reasonable Firmness”…If one reasonably BUT mistakenly believed he had been threatened, he would be liable for NO offense if a person of
reasonable firmness would NOT have been able to resist such a threat. If one’s mistaken belief was recklessly or negligently formed, he could be liable
ONLY for a crime of recklessness or negligence. Regardless, D must NOT be at fault in exposing himself to the threat.Duress is NOT a valid defense to
murder NOR will it serve to reduce a murder to manslaughter; nonetheless, it will have bearing on D’s mens rea (it is just NOT a formal defense).
6. Traditional Diff b/t Duress & Necessity - Generally, you have 2 paradigms. Necessity is usually caused by an act of nature not by another person & also
notion that what you are doing is helping the general welfare. Duress is considered more as an excuse than a justification. Duress is usually brought
about by a coerced human act.
7. People v. Unger (Escape Case) Under general mens rea analysis D intentionally escaped so he’s guilty under this general requirement. Public Policy - Don't
want to give prisoners a reason to escape & be allowed to a defense. The threat doesn't fit for D to escape. No one said D had to escape or be killed.
8. People v. Anderson D convicted of 1st Degree murder & kidnapping of a woman molester. D argues Duress b/c he was threatened to get the shit beat out of
him Common Law Rule- duress is not a defense to killing an innocent person.
9. When can you raise duress defense in murder? FELONY MURDER & if you succeed in the defense in the underlying felony then that would wipe out the
1st degree conviction of felony murder. (Ex. You are threatened with the death of your family if you don't rob the bank. You rob bank and teller dies of
heart attack during robbery - felony murder)
10. FutureHarm: D may assert duress when he acts under a threat of future harm only when the harm is likely to occur so quickly that the D cannot escape the
situation.
K. INTOXICATION DEFENSE
1. Voluntary intoxication - you chose to become intoxicated/drunk/high.
2. RULE: You have to be more than drunk or high. You essentially have to be out of your mind. Incapable of forming the specific intent. Some states retain
the dichotomy of Graves, specific intent/general intent while others have narrowed or even abolished it in others. We feel uncomfortable about allowing
someone who chooses to become intoxicated & then causes harm to other, it is hard to work up a sympathy for that person. Society says they are
morally blameworthy. Commonwealth v. Graves – D drank & took LSD before burglarizing 75 yr old man’s home in which he died from gun shot.
3. VI is NOT a separate defense; may be used to negate mens rea requirement of a specific intent crime.D’s level of intoxication must be at the point where
you were unable to form the mens rea of the crime (essentially, D is unable to is unable to distinguish right from wrong).
a) If jurisdiction has the distinction of 1st and 2nd murder where 1st requires intent (i.e. a specific intent) BUT murder 2 nd (malice murder; depraved
heart--extreme recklessness/indifference) does NOT require a “specific intent” (“general intent” crime) then evidence of intoxication will NOT help
D. Thus, D would NOT get an intoxication instruction for rape (general intent crime), BUT may get instruction for assault w/ the intent to commit
rape (specific intent crime).

Prof. Rosen McMillan-McWaters 25

 b) Some Cts do NOT consider intoxication at all; some jurisdictions give instructions to the effect that jurors may ignore whether intoxication as
affected D’s mens rea or other cautionary instructions. Other cts may “opening up the time-frame” to show that D voluntarily became intoxicated
4. MPC - says that intoxication is a defense to specific intent crimes, but not general intent.
 Defense that will lower 1st degree murder down to 2nd degree.
 Not a defense to malice murder. Requires intent to kill & encompasses extreme recklessness. Generally if you are tried with 2nd degree murder you
can't raise intoxication defense.
 Is a defense if it negates the mens rea, but its not a defense to recklessness. This repeats the Common Law pattern of purpose & knowledge.
5. Early Common Law - in early common law there was no intoxication defense. Gradual acceptance of intoxication.
6. Hypo - D conviction is for rape, (general intent crime) so you don't get a jury instruction on rape for intoxication defense. However you get an intoxication
defense with a charge of intent to commit rape. Assault w/ deadly weapon is not a specific intent crime so you don't get an intoxication defense.
7. Involuntary Intoxication
a. Minneapolis v. Altimus - Ct says you have a right to an instruction on involuntary intoxication.
b. Categories of Involuntary Intoxication:
i. Coerced intoxication - you are forced to take drugs, alcohol, etc by reason of duress or coercion
ii. Pathological intoxication – You take something for 1 purpose & have an outrageous reaction. You have no reason to believe that this reaction
will occur. (Ex. You take medically prescribed drug and you have a bad reaction)
iii. Intoxication by innocent mistake – You take something that you think is something else. (Drink root beer that is actual spiked punch)
iv. Unexpected intoxication resulting from the ingestion of a medically prescribed drug - need to show that you don't know or have reason to
know that the drug would have the effect that it did, that the drug was the cause of the harm.
L. INSANITY
1. TEST OF INSANITY Traditional - ability to know right from wrong or to know the nature of your act. Broad Test - looked at whether you knew right from
wrong, but b/c of a mental defect you had an irresistible to commit the crime; MPC- When as a result of mental disease or defect, the D lacked
substantial capacity to appreciate the criminality of his conduct; or When as a result of the mental disease or defect the D lacked substantial capacity to
conform his conduct to the requirements of the law.
2. POLICY- How do you deter someone who is out of their mind; morally we feel differently about people who harm another person b/c they are out of the
mind. We don't feel that they are as culpable as those who chose. POLICY FOR DOING AWAY W/ INSANITY - fear of manipulation that D's who are
blameworthy use it; when you get into an insanity defense, we are in essence turning over our crim justice system to psychiatrists and neither the public or
the legal system trusts these folks to make the decision.
3. DIFF b/t INSANITY AS A DEFENSE & COMPETENCY TO STAND TRIAL
a) When you are raising insanity you are saying that during the commission of the crime D was suffering a mental defect & was the crime. RULE: To
establish defense on the ground of insanity, it must be clearly proved that at the time of the committing act, the accused party was laboring under
such a defect of reason, from disease of the mind, as not to know the nature & quality of the at he was doing or if he did know it, that he did not
know that what he was doing was wrong.
b) Competency to stand trial is prior to trial or during the trial. Is D competent enough to understand and participate in the defense against themselves.

Prof. Rosen McMillan-McWaters 26

 If D is incompetent at time of the trial then it is Unconstitutional to bring them to trial. Constitutionally permissible to place the burden of proof on D
to show that he/she is incompetent. When that happens D is sent to mental institution is kept there until they are competent. RULE - whether D is
reasonable able to assist the law & has a rational understanding of the proceedings going on.
M. CONDITIONED RESPONSE (SEE ACTUS REUS PAGE 4 (F)
N. MISTAKE (SEE MENS REA PAGE 8)
O. MISTAKE OR IGNORANCE OF FACT – Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the Defendant did not have the
state of mind required for the crime. (Ex. You go deer hunting & shoot at what you reasonably believe to be a deer, but in fact its B, who is killed. Mistake of fact
establishes that you did not have the state of mind required for the murder.
P. MISTAKE OR IGNORANCE OF THE LAW – General Rule: It is not a defense to a crime that the defendant was unaware that his/her acts were prohibited by the
law or that she mistakenly believed that her acts were not prohibited. This is true even where the ignorance or mistake is reasonable.
1. Mistake or Ignorance of Law May Negate Intent – If the mental state for a crime requires a certain belief concerning a collateral aspect of the law,
ignorance or mistake as to that aspect of the law will negate the requisite state of mind. Ex.) A is charged with violating a statute that prohibits the sale of
a gun to one known to be a convicted felon. A was unaware of the statute prohibiting this, but was aware that the person to whom the gun was sold was
convicted of assault. A mistakenly believed, however that assault was a misdemeanor, in fact, it was a felony. Is a guilty? HOLDING: No. A’s ignorance of the
statute prohibiting the sale does not affect her liability, but the statute requires awareness that the buyer was a convicted felon. Since A believed the buyer
to be only a convicted misdemeanant, she lacked the state of mind required for the crime.
INCHOATE OFFENSES
A. Inchoate Offense (Def.) - one which is incomplete where the harm has not been done. 1) Conspiracy, 2) Attempt - generic way of imposing criminal liability
fairly early in the process, 3) Solicitation - many juris a crime to solicit another to carry out criminal activity.
B. ATTEMPT
1. Attempt requires (1) an intent to commit the “target” offense, AND (2) a “substantial step” in furtherance of the crime.
2. Generally, NO separate liability for “attempting” and “completing” crime b/c attempt merges into “completion.”
3. MPC punishes “attempt” to the same extent it punishes the “completed” crime.
4. On the other hand, MOST jurisdictions punish attempt less than the completed crime.
5. POLICY REASONS TO CATCH PEOPLE EARLER: Deterrence; For protection
6. REASONS FOR WANTING TO WAIT Encourage people to have a chance to desist; Judicial resources argument --most of us would be in court daily. Conserve
judicial resources--punish those who are most dangerous. You may have someone doing something that is actually innocent. Ex) In bushes with gun for
hunting.
7. Mens Rea:
a) Majority--to establish guilt for an “attempt” of a result crime (e.g., murder) state must show that D intended the result of that crime (i.e. the completed
offense).
b) F-M Exception: Generally, a criminal attempt consists of specific intent to commit the offense along w/ some overt act in furtherance of the intent
which goes beyond mere preparation. B/c a conviction for f-m requires NO specific intent to kill, it follows that there can be no conviction for

Prof. Rosen McMillan-McWaters 27

 attempted f-m.
8. Actus Reus:
a) Substantial Step Test: (Modern view)…If actor has taken a “substantial step” in the furtherance (commission) crime such action is strongly
corroborative of the actor’s overall purpose
b) Preparation is NOT punished; only when D begins to commit crime (we don’t want to punish to early).Cts tend to want to give people opportunity to
NOT go through w/ the crime
c) Mere preparation” and “attempt” are conclusions NOT descriptions. By determining that act was “mere preparation,” we have decided that D is NOT
criminally responsible
d) Abandonment: (NOT a “defense”) – some jurisdictions allow abandonment even when the attempt has already begun. NO bright line btw
abandonment & mere preparation.
e) Line b/t mere preparation (which by definition is a non-criminal activity) up to an attempt (which is a crime).
f) POLICY: What the Cts are doing as a matter of policy is determining where in the line of doing a crime they want the law to intercede. Reflection of
where the line ought to be than a determinative factor of whether someone is guilty or not.
 Modern law has tended to push the timeline back. Willing to find an attempt at an earlier stage of the criminal activity.
g) Commonwealth v. Peaslee - D was trying to burn down insurance bldg. He set up combustibles in bldg & solicited another to light candle, but then
changed his mind. HOLDING: Ct says the mere collection of materials w/ purpose of setting fire is too remote b/c its not accompanied by any present
intent. Actually enough evidence of an attempt, based on fact that he set materials up & solicited someone to commit the crime, but the indictment
failed to allege solicitation.
9. Pre-Attempt Conduct:
a) Inchoate offenses of solicitation and conspiracy punish specific types of preparatory conduct (conduct that has NOT yet reached the “attempt” stage).
b) Solicitation--asking someone to commit a crime--does NOT require an agreement by other person (person approached may be undercover cop)
c) Conspiracy--two OR more people agreeing to commit a crime. Some jurisdictions require an “overt act” by at least one of the parties that was part of
the agreement. In others, the moment you agree it’s a crime
10. Abandonment
a) If you are committing a crime & you stop b/c you get busted or events occur you are guilty.
b) Commonwealth v. McCloskey - D planned to escape from prison, had civilian clothes etc, but decided to go through with it b/c of fam. Concurring
judge says that he would let the D off b/c of voluntary abandonment. This was an attempt, but b/c D should be let off b/c he abandoned the crime.
Concurring Judge - PA legislature had adopted a proposal from MPC & PA had previously realized abandonment. You want to encourage what
happened here and say he's not guilty b/c he abandoned the attempt.
c) Those juris which recognize abandonment as defense, you have to do not b/c you are afraid of getting caught (ex. Hearing police sirens) but
convince fact-finder you are doing it for something else. (Ex. Like D here, abandoned for the sake of his fam.

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MAJOR SPECIFIC INTENT CRIMES

Solicitation – Intent to have the person solicited to commit the Larceny & Robbery – Intent to permanently deprive another of
crime his interest in the property taken
Attempt – Intent to complete the crime Burglary – Intent at the time of entry to commit a felony in the
dwelling of another
Conspiracy – Intent to have the crime completed Forgery – Intent to defraud
First Degree Premeditated Murder – where so defined by False pretenses – Intent to defraud
statute: Premeditated intent to kill
Assault – Intent to commit battery Embezzlement – Intent to defraud

VOID –FOR-VAGUENESS DOCTRINE – The D/P Clause of the Constitution found in the 5th & 14th Amendments, has been interpreted
by the Supreme Court to require that no criminal penalty be imposed without fair notice that the conduct has been forbidden. The
void-for-vagueness doctrine, which has been held to require particular scrutiny of criminal statutes capable of reaching speech
protected by the 1st Amendment, incorporates two considerations: 1) Fair Warning – a statute must give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the statute. 2) Arbitrary & Discriminatory Enforcement Must
be Avoid – a statute must not encourage arbitrary and erratic arrests & convictions.

INTERVENING ACT – As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or is
outside the foreseeable sphere of risk created by the defendant’s act. Ex.) Act of Nature, Act by 3 rd Party, Acts by the Victim)

CLASSIFICATIONS OF HOMICIDES – 1) Justifiable homicides (those commanded or authorized by law), 2) Excusable homicides
(Those for which there was defense to criminal liability), and 3) Criminal homicides.

Prof. Rosen McMillan-McWaters 29

CHECK LIST:

1. POLICY: THEORIES OF PUNISHMENT

2. INTERPRETATION OF CRIM STATUTES
3. ACTUS REUS
i. Voluntary Act – no diff in Common Law or MPC
ii. Possession
i. Common Law - Absent a state of mind requirement in the statute, the D must be aware of his
possession of the contraband, but he need not be aware of its illegality or true nature.
ii. MPC – MPC provides that possession can be a criminal act only if the D knew he had possession of the
object & was aware of his control thereof. MPC adds “knowingly” or “intentionally” state of mind
element to possession crimes, & under such statutes the D ordinarily must know the identity or nature
of the item possessed.
a. Burden of proof on the prosecution that the D was in possession or it’s in your control. D can
overcome this presumption by providing evidence that he didn’t know of the objects presence or
that he had no control over it.
iii. Omission (Failure to act under a duty) Legal duty under:
a. Statutory Requirement
b. Special Relationship
c. Creation of peril
d. Duty based on k
e. Voluntary Undertaking
iv. Attendant Circumstances

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4. MENS REA
i. Specific Intent
a. Need of Proof – Existence of a specific intent cannot be inferred from the doing of the act. The
prosecution must produce evidence tending to prove the existence of the specific intent.
b. MPC:
i. Knowledge/knowingly - MPC imposes the subjective test in determining the D’s knowledge. The
test if whether the D actually knew or believed something, not whether a reasonable person in
their position would have had that knowledge or belief.
ii. Purposefully – MPC a person acts purposely with respect to a particular element of a crime if D
has the conscious objective or purpose to cause harm.
iii. Recklessly – a person said to act reckless under MPC when consciously disregards a substantial &
unjustifiable risk & that the risk involves a gross deviation from the standard of conduct that a
law abiding person would observe in a similar situation. All the circumstances known to the D
must be considered when determining whether the risk was substantial & unjustifiable. (Ex.
Motive, end D was seeking, etc)
iv. Negligently - There is a greater degree for this type of negligence than civil negligence. MPC
rejects this approach
v. Strict liability – no mens requirement
c. Defenses – Voluntary intoxication & unreasonable mistake of fact apply only to specific intent crimes.
ii. General Intent
a. Generally, all crimes require “general intent, “which is an awareness of all factors constituting the crime,
i.e. the D must be aware that she is acting in the proscribed way and that any attendant circumstances
required by the crime.
iii.

Common Law Model Penal Code Mistake Defense

Specific Intent Purpose & Knowledge Honest

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 General Intent Reckless & Crim Honest Reasonable
Negligence

Strict Liability Strict Liability No mistake defense b/c there is

no mens rea requirement

5. CAUSATION
i. But-for & Proximate - the act was the cause & fact of the harm and that the act was the proximate or legal
cause of the harm.
ii. Issue – unintended victim.
iii. Some crimes require a harmful result & causation.
6. ACCOMPLICE LIABILITY
i. Parties to the Crime
a. Principle in 1st degree
b. Principle in 2nd degree
c. Accessory before the fact
d. Accessory after the fact
ii. Procedural effects of Classification
a. Common Law – At Common Law, the distinction b/t the parties have procedural significance. Ex) An
accessory could not be convicted unless the principle had already been convicted.
b. Modern Statues – have abandoned Common Law distinctions, so that all parties to the crime can be
guilty of the criminal offense, except accessories after the fact are treated separately.
iii. Actus Reus
a. Aiding & abetting is one who aids, abets, encourages, or assists another to perform a crime will be held
liable for that crime.
b. Words – may be enough if the words constituted encouragement & approval of the crime
c. Mere presence is not sufficient
iv. Mens Rea
Prof. Rosen McMillan-McWaters 32
 a. Intentional aid – D’s conduct in rendering assistance or encouragement must generally be intentional in
2 respects: (1) the D must intend to commit the acts which in fact give aid or encouragement. (2) By
committing those acts, the D must intend to help bring about the other party’s criminal act.
b. Must have purpose to further the crime.
c. Depraved indifference – Ct may impose accomplice liability on D where X commits a killing with reckless
indifference to human life, and D (acting with the same reckless indifference) encourages X in the
conduct leading to the death. (Ex. A & B open fire on a group of people, killing V. Prosecution can’t
figure out whether fatal shot came from A or B, so most States would probably hold that B could be
convicted as an accomplice under depraved indifference, if he is shown that he fired with reckless
indifference.
v. Limits to Accomplice Liability
a. Abandonment
b. Vicarious Liability
c. Proving complicity – need more than accomplice testimony to convict D. Need corroborating evidence.
7. CRIMINAL HOMICIDE
i. Intentional Homicide
a. 1st Degree Murder
b. 2nd Degree Murder
c. Voluntary Manslaughter
i. Heat Passion + Elements of Provocation:
d. Involuntary Manslaughter
ii. Unintentional Homicide
a. Felony Murder
i. Common Law – strict liability under felony murder.
ii. MPC – does not adopt the felony murder rule per se. MPC takes a less severe approach than
Common Law. MPC establishes a rebuttable presumption of recklessness manifesting extreme
indifference to the value of life. (Ex. Where D is engaged in an accomplice burglary, if an

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 unintentional occurs during one of these crimes, then Prosecution gets to the jury on the issue of
depraved heart murder, but D is free to rebut the presumption that he acted with reckless
indifference to the value of human life. )

8. CAPITAL PUNISHMENT
i. Aggravating Circumstance – this put up by the Prosecution
ii. Mitigating Circumstance – the defense puts this up
iii. Victim Impact Evidence – does not violate the 8th Amend
9. RAPE
i. In most States, even a reasonable mistake as to age is not a defense. HOWEVER, MPC – allows the reasonable
mistake as to age defense.
ii. Force & Consent
a. Common Law – needed to show an additional force beyond the act of penetration.
b. MPC – need show force or threat of imminent death or serious bodily injury, extreme pain or
kidnapping to be inflicted on anyone; or he substantially impaired her power to resist.
c. State v. NJ v. MTS - Under this ruling, in order to get a rape conviction, Prosecution has to show an
offensive touching that involves sexual penetration then it is a rape. It does not require an additional
force beyond the act of unwanted sexual penetration. State must prove beyond a reasonable doubt that
there was sex/penetration & it was accomplished w/o the affirmative & freely given permission of the
alleged victim.
iii. Statutory Rape – strict liability
a. Protected Person Doctrine – if the legislature has intended the person to be protected under the statute
then they cannot be held liable. (Ex. Statutory rape case where guy takes underage girl to ex-gf house
and both guy & underage girl are charged with statutory rape, but Ct holds that the underage girl was
intended to the protected person, and therefore cannot be held under this statute.)
10. DEFENSES
i. Proportionality

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ii. Duress
a. Elements: Threat, fear, imminent danger & bodily harm.
b. MPC – you can use this defense where the threat to the D was sufficiently great that a person of
reasonable firmness in the D’s situation would have been unable to resist. Modern courts & MPC are
more liberal. Many cts recognize this defense where a threat is made against the family member of the
D. The MPC poses no requirement at all as to who must be threatened.
c. Common Law - Traditionally this defense is not available if D is charged with homicide.
iii. Necessity
a. MPC – does not rule out necessity defense even in intentional homicide cases. But under the MPC one
may not sacrifice one life to save another. Code requires the lesser of two evils not merely the equal of
two evils.
b. EXCEPTION – if a life can be sacrificed to save 2 or more lives, the code would allow this defense. (Ex. Mt
climber example)
iv. Self Defense
a. MPC – MPC construes imminence of harm liberally. Harm must be reasonably imminent. D may use
force to protect himself against unlawful force that will be used in the presence not future.
b. Rule: Aggressor cannot claim self defense
i. EXCEPTIONS: (1) non deadly force met with deadly force (2) withdrawal.
c. MPC – if D can safely retreat then you must do so before the use of deadly force.
d. Common Law – castle doctrine
e. MPC (Minority view) – even an unreasonable but genuine mistake as to the need of self-defense will
protect D.
v. Defense Others
a. Requirements: danger to other, degree of force must be proportional no greater than what is
reasonably necessary, and D reasonably believes that the party being assisted would have the right to
use in his own defense the force that D proposes to use in assistance.
b. MPC – you have to be actually defending another person and reasonably believe

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 c. Traditional Common Law – you could only defend your relatives.
d. Common Law – If the person aided would not have had the right to use that degree of force in his own
defense, D’s claim fails. (Ex. You see robber & cop in civilian clothes, you shoot cop---YOU GET NO
DEFENSE OF OTHERS) (THIS IS DIFFERENT FROM MPC- You get reasonable person standard)
vi. Defense of Property
a. Generally person has a limited right to use force to defend his/her property against wrongful taking
b. No deadly force can be used
c. Reasonable degree – the degree of force used must not be more than appears reasonably necessary to
prevent the taking.
d. Traditional Law- D could use mechanical deadly device (Ex. Spring gun) if the situation were one in
which D himself could use deadly force.
vii. Intoxication
a. Voluntary intoxication –self induced intoxication does not excuse criminal conduct
i. MPC – self induced intoxication is not a defense unless it negatives an element of the offense.
ii. Traditionally cts in a crime of general intent, intoxication would never be a defense and in a
crime of specific intend, D would be allowed to show that because he was intoxicated he did not
have the requisite intent to commit the crime. (Ex. If D was charged with assault with intent to
kill, he could show that he was too drunk to have an intent kill.)
b. Involuntary – where D can show that his intoxication was involuntary, D is much more likely to have a
valid defense.
viii. Insanity
a. M’Naghten Rule – D is entitled to an acquittal if the proof establishes that: a disease of mind, caused by
a defect of reason, such that the D lacked the ability at the time of his actions to either: (1) know the
wrongfulness of his actions; or (2) understand the nature or quality of his actions.
11. INCHOATE OFFENSES
i. Attempt

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12. POLICY ARGUMENTS FOR EVERYTHING!!!

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