CRIMINAL LAW

Prof. Dolovich

I. WHAT IS PUNISHMENT?........................................................Error! Bookmark not defined.

UTILITARIAN......................................................................Error! Bookmark not defined.
RETRIBUTION.....................................................................Error! Bookmark not defined.
II. DEFINING CRIMINAL CONDUCT.....................................................................................3
ACTUS REUSCULPABILITY...............................................................................................5
VOLUNTARY ACTS..............................................................................................................5
OMISSIONS............................................................................................................................8
MENS REA...............................................................................................................................12
COMMON LAW...................................................................................................................12
MODEL PENAL CODE 2.02..............................................................................................15
ISSUES WITH MENS REA..................................................................................................16
III. HOMICIDE...........................................................................................................................19
MURDER..................................................................................................................................19
COMMON LAW...................................................................................................................19
PROBLEMS WITH THE DIVISION...................................................................................21
MODEL PENAL CODE210.1.........................................................................................22
DEPRAVED HEART MURDER..............................................................................................23
FELONY MURDER..................................................................................................................38
INHERENTLY DANGEROUS FELONY LIMITATION.................................................40
"MERGER DOCTRINE" LIMITATION...............................Error! Bookmark not defined.
KILLINGS NOT "IN FURTHERANCE" OF THE FELONY LIMITATION......................43
MODEL PENAL CODE210.2.........................................................................................45
MISDEMEANOR-MANSLAUGHTER RULE (UNLAWFUL-ACT DOCTRINE)...............46
MANSLAUGHTER..................................................................................................................23
VOLUNTARY MANSLAUGHTER.....................................................................................23
INVOLUNTARY MANSLAUGHTER.................................................................................31
IV. MISTAKE...............................................................................................................................47
MISTAKE OF FACT.................................................................................................................47
STRICT LIABILITY.............................................................................................................50
MISTAKE OF LAW..................................................................................................................54
JUSTIFICATIONS:...............................................................................................................54
EXCEPTIONS:......................................................................................................................54
MODEL PENAL CODE........................................................................................................57
V. RAPE........................................................................................................................................61
ACTUS REUS...........................................................................................................................61
FORCE..................................................................................................................................61
NONCONSENT....................................................................................................................65
MODEL PENAL CODE213.1.........................................................................................66
MENS REA...............................................................................................................................67
MENS REA STANDARD.....................................................Error! Bookmark not defined.
NONCONSENT....................................................................................................................67

VI. EXCULPATION....................................................................................................................69
JUSTIFICATION.......................................................................................................................69
SELF-DEFENSE...................................................................................................................69
MODEL PENAL CODE3.04...........................................................................................70
SELF-DEFENSE AND RACE..............................................................................................70
HONEST BUT UNREASONABLE BELIEF.......................................................................71
BATTERED WOMAN SYNDROME...................................................................................71
2 DEFINITIONS OF IMMINENCE.....................................................................................72
EXCUSE....................................................................................................................................73
DURESS................................................................................................................................73
MODEL PENAL CODE2.09...........................................................................................75
NECESSITY..........................................................................................................................76
INSANITYEXCUSE.............................................................Error! Bookmark not defined.
M'NAGHTEN TESTCOMMON LAW RULE..................Error! Bookmark not defined.
ALTERNATIVES..................................................................Error! Bookmark not defined.
VII. SENTENCING.........................................................................Error! Bookmark not defined.
SENTENCING PROCESS....................................................Error! Bookmark not defined.
VIII. DEATH PENALTY................................................................Error! Bookmark not defined.
EIGHTH AMENDMENT......................................................Error! Bookmark not defined.
FOURTEENTH AMENDMENT...........................................Error! Bookmark not defined.

I. WHAT IS PUNISHMENT?
Punishment: suffering purposely inflicted by the state because one of its laws was violated. It
connotes a blaming, a stigmatizing, of the perpetrator. The main purpose of criminal law is to
protect the public interest by preventing certain undesirable conduct.
Why should we have different levels of punishment for different types of murder?
i) Retributive: Their levels of blame should be different.
ii) Deterrence: Not good rational for deterring crime if same level of punishment.
Two purposes to punishment:
1. Utilitarianism
2. Retribution
UTILITARIAN
Punishment is itself an evil because it deliberately inflicts harm on human beings. Therefore, we
should hurt criminals only if some good is achieved. What is that good:
Deterrence: punishment of a criminal (Defendant) reduces future crime in two ways:
Specific Deterrence: Defendant can decide not to commit future crimes (death penalty sentence
makes this irrelevant) or
General Deterrence: Other persons, contemplating committing crimes and learning of the
threatened punishment, will decide not to do so out of fear of punishment. ses people as example
to prevent others in community from doing the same thing. The general deterrence idea would
work from a murder conviction in Dudley case. Deterrence assumes that there is a rational actor,
that at the moment of the decision, people are acting in a rational way. When you are starving to
death, you are not thinking clearly and might not be a rational actor. But when in the moment,
facing certain death, even if death is the penalty, you might still commit the crime because you
could live longer, might get out of it, maybe no one would find out.
The pain threatened must be greater than the pleasure that Defendant thinks he will attain by
committing the crime.
o The premise is that criminals balance these pleasures and pains
However, there are too many variables to measure accurately the actual deterrent effect:
o E.g. if the legislature increases the penalty for burglary, and the rate of burglaries thereafter
decreases, it is very difficult to prove that the threat of increased punishment caused the
decline. All the burglars may have already been put in jail
It is the threat and not the actual punishment that brings about deterrence. If it were possible to
threaten punishment but never impose it and yet achieve the same amount of deterrence, punishment
would be unnecessary.
More important in deterring crime is increased certainty of arrest, conviction and imporisonment.
Certainty and severity of punishment together operate as the most effective deterrents of crime
either one alone is ineffective.
Incapacitation: must either:
Punish for lengthy periods of time every person committing the same crime equally, or
Assume that they can accurately identify those who are most likely to reoffend and impose on
them lengthy periods of incarceration.
Rehabilitation: offenders can be changed into nonoffenders if given the proper treatment. Works to
reform the criminal to become a useful member of society. But it would be paradox if the main purpose
of providing punishment for murder twas to roeform the murderer, not to prevent the murder, yet rehab is
an important goal.
Michael Moore says there are a number of different types of rehabilitation

o
o
o

To make them more safe to return to streets

So they can lead flourishing and successful lives. More humane conditions could help
them to lead flourishing lives, but more harsh conditions could do the same thing.
Should Dudley and Stevens be convicted of murder for rehabilitation purposes? Judges
even say that if they were in their place, they would do the same thing.

RETRIBUTION
Persons who choose to do wrong acts deserve punishment. Criminal must be punished for the
wrong he has committed. This theory looks to past and not to future and rests solely upon the
foundation of vindictive justice.

Unlike utilitarianism, which looks to effects in the future to justify the imposition of punishment,
retributivism looks backward to the past act that the ccriminal chose to commit.
Difficulty in explaining how punishing the criminal makes up for the injury that the D inflicted
on society.
Critics argue that the theory validates hatred: its morally right for the public to hate criminals.
You did something wrong, you are blameworthy for that wrong. Paying debt to society. Herbert
Morris says you benefit from society, and when you take something away, you burden society so
deserve to be punished. In Dudley, the wrong is that they valued their lives more than Parkers
and killed him. People who are living are benefiting themselves by burdening Parker.
Regina v. Dudley and Stephens, 1884:PG 73 Convicted and sentenced to death--You cant separate
morality entirely from the law
Facts: Four shipwreck survivors in a lifeboat went days without food and water. Dudley and Stephsn
suggested killing the youngest member; the third person on board refused; finally Dudly mostly and
Stephens killed 17-year-old boy Richard Parker who was too weak to resist or assent and the three fed off
the dead body. The 3 were picked up 4 days later, would not have survived otherwise.
Issue: Does the extreme necessity of saving one persons life justify taking anothers
Decision: No. Hunger is not an excuse for taking the life of another person. House of Lords found Dudlye
and Stephens guilty and sentenced them to death. Brooks did not consent so was not charged.
Commentary: There are 3 types of justifications
i) Self Defense-If you cant otherwise save your own life but to kill the person coming after you, then it
is self defense. This case is not self defense since Parker was not attacking anybody.
ii) Durress-If you dont kill this victim, then someone else is going to kill you. Duress is not a defense to
murder. They could not have argued it in this case since nooone was forcing Dudley to kill.
iii) Necessity-Not duress, but some other circumstances making the person act, like being lost at sea and
starving. The issue in this case is necessity. Is the defense of necessity applicable here?
(1) House of Lords relies on Lord Bacon and Lord Hale to discuss if it was necessary.
(2) Hale says necessity does not apply in this situation. He says it doesnt justify larceny, a lower
crime, so it doesnt apply to a higher crime.
(3) Bacon says necessity comes to 3 types: necessity of conservation of life, obedience, and necessity
of the act of God or of a stranger. He says that necessity does apply in this case under necessity of
conservation of life.
(4) The Court goes with Lord Hale and says sure there is a duty to preserve your life but sometime
there is more of a duty to sacrifice ones life. They talk about how people sacrifice their lives in
war, but say they also follow Christ who sacrificed his life and they are in a Christian country.
They explicitly invoke moral values of religion to justify the verdict. Actus Reas stands because
there was no involuntary act, mens rea stands because was not under duress, and doesnt get the
necessity defense because court says sometimes there is a duty to die.

II. DEFINING CRIMINAL CONDUCT

Three principles limit the distribution of punishment:
1. Culpability (Actus Reus): safeguard conduct that is without fault from condemnation as criminal
2. Proportionality: to differentiate on reasonable grounds between serious and minor offenses
3. Legality: to give fair warning of the nature of the conduct declared to constitute an offense
ACTUS REUSCULPABILITY
Common law-two readings of Martinall acts voluntary or trigger element has to be voluntary
MPC-only one act has to be voluntary
It is the physical, or external, component of the crime.
TWO ELEMENTS
1. Voluntary act; or an omission to perform an act, under circumstances in which the defendant
had a lawful duty to act, and
2. Social harm
VOLUNTARY ACTS
Rule: generally, a person is not guilty of a criminal offense unless his conduct includes a
voluntary act. We need a voluntary act requirement because otherwise no purposes of
punishment would be met.
Martin v. State: COMMON LAW VIEW- Requirement of Voluntary Act-Alabama Court of
Appeals 1944could interpret as all acts need to be voluntary or that only the trigger act
needs to be voluntary (173)
Facts: Martin was arrested at his home and taken onto a public highway, where he used loud
and profane language and manifested a drunken condituion with other persons present. He was
convicted of drunkenness in a public place under a state statute. Provision: Any person who,
while intoxicated or drunk, appears in any public place where one or more persons are present
and manifests a drunken condition by boisterous or indecent conduct, or loud and profane
discourse, shall, on conviction, be fined.
Issue: May a person be guilty of a crime if his conduct was not voluntary?
HELD: No, conviction reversed. The statute presupposed that the D voluntarily appears in
public in a drunken condition. D was brought to public place involuntarily b the arresting
officer. Since he did not voluntarily go to the highway he cannot be found guilty.
Commentary: Although statute does not say anything about voluntary or involuntary acts, the
court reads in certain basic principles of the legislative law that the legislature doesnt have to
repeat. Court could have read the writing of the statute. Court and legislature are working
together here.
If you were to give Martin a broad reading, you would say that there is no criminal liability
unless every element of the crime was committed voluntarily (MPC below says only 1 element
has to be met). A narrower way of reading it would be that the trigger element has to be
voluntary (appearing in public or being drunkbut what is the trigger element? The
appearance). A prosecutors job is to prove every element of an offense, otherwise there is no
crime.
For Martin, you could say rule here is much narrower, its not that every element has to be
voluntary, but there is something particularly troubling by allowing a conviction for something
person perfectly allowed to be doing in their home and taken away.
(BUT under MPC only need 1 voluntary act)

A voluntary act is a willed muscular contraction or bodily movement by the actor.

People v. Newton: Involuntary Acts-Unconsciousness (175)-Cal. Court of Appeal 1970
(Judgement reversed, sent back to trial to determine if he was unconscious)

Facts: Newton D was involved in altercation with police officer subsequent to his arrest, was
shot in the midsection, but then managed to grab the gun and fired several shots at the officer,
killing him. D testified that he remembered nothing after being shot (except for a few events in
an ER) until recovering consciousness at 2nd hopital. Expert said shock reaction (producing
unconciousness) could have resulted from the shot and could have lasted up to ta half hour.
Defense asked for instruction on unconciousness but trial court refused. D was convicted of
voluntary manslaughter and D appealed.
Issue: Is it error to fail to instruct the jury on the issue of unconsciousness as a defense?
HELD: Yes, judgment reversed. Where not self induced (as by voluntary intoxication)
unconsciousness is a complete defense to murder. Unconsciousness includes situations where
the D can act physically but is not conscious of what he is doing. D is entitled to jury
instruction on the conciousness issue even if inference arises fro his own testimony. Reasoning:
you cant be held liable for anything you didnt do.
*Because he won on appeal for procedural error, he is not just let go but they have to go
back to trial court so a jury can decide. It is true that unconsciousness is a defense to
murder, but jury has to find the facts to find out if he was actually unconscious. If he was
hazy, prosecution would argue that he had a sense of what he was doing so it was
voluntary act. Court would have to decide as legal matter if haziness constitutes and
involuntary act. You could liken haziness to unconsciousness for make case for D. For P,
if youre hazy enough to realize that you are holding a gun and walking toward a police
officer, then you should stop yourself and act could be voluntary and therefore D liable.

**To be guilty of an offense, it is sufficient that the persons conduct included voluntary act.
It is not necessary that all aspects of his conduct be voluntary.**
People v. Decina: Determining the time of the Voluntary Act (voluntary act occurred
before the actual harmful act and still conviction)
Facts: Decina, aware of his epileptic condition and likelihood of being rendered unconscious as
the result of a seizure, drove his vehicle on a public way. He suffered an attack and car went up
on sidewalk, killing 4 people. Charged with criminal negligence in operation of a vehicle.
Held: Court found his actions constituted criminal negligence because he deliberately chose to
take a chance by driving alone while he was aware of his vulnerability to seizures and did so in
disregard of the results that might follow. Note the necessity of prior knowledge; a disabling
attack, without any prior knowledge, would be viewed differently.
Reasoning: With this knowledge, and without anyone accompanying him, he deliberately took a
chance by making a conscious choice to drive his car. That was his voluntary act. If this was
his first seizure, D would have better case because there would be no voluntary act. But we can
compare this case to drunk drivingD knew that he could lose conciousness.
Policy Argument-If we were going to treat everyone who had a heart condition as not able to
drive then most people would have to stay at home. In a free society, we have a notion that
people, unless creating unreasonable risk, should be able to do what they like.
Distinction from Newton-Newton had no prior condition
Distinction from Martin- If in Decina the voluntary act is getting into the car, then the
analogous act in Martin is getting drunk in his own home. The difference is in his house, Martin
isnt really risk to anyone, but Decina knows that by getting into car, there is some risk there.
Could say that Decina is blameworthy and Martin isnt because Martin is allowed to get drunk
in his own home, so the fact that there was involuntariness about him going to the road, then
that negates the accusation of liability.

MODEL PENAL CODE 2.01(1) (1041) (I disagree with MPC here)

A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is physically
capable.

*Under this model penal code, Martin would be guilty because his profane
language was a voluntary act and it does not describe all involuntary acts.
Under MPC, all you need is one voluntary act.
(MPC 1.13 defines an act as bodily movement whether voluntary or

involuntary. )
Cogdon on 188 (MPC-no conviction--woman kills daughter in sleep)

VOLUNTARY v. INVOLUNTARY
Habit: Model Penal Code (MPC) declares that a habitual action is to be treated as a
voluntary action.
Possession: an act only if the person is aware she has the thing charged with possessing
Hypnosis: MPC stated that they are not voluntary
Somnambulism: See Cogdon: not voluntary act because not conscious.
Legal Insanity: differs from involuntary act in that the defense bears the burden of
proving legal insanity (from John W. Hinckley case (shot and wounded President
Reagan) and was found not guilty by reasons of insanity).
VOLUNTARINESS AND JUSTIFICATION FOR PUNISHMENT
o

Punishment for involuntary acts wouldn't fit within our justifications for punishment:
Retribution (more compelling): punish because they deserve it. They committed
a wrong. Voluntary behavior is assumed because if not, you didnt intend to do
something wrong.
Utilitarian: deterrence: The law could not possibly deter involuntary action. Can
it?
They might be deterred from putting themselves in situations in which
their involuntary conduct may cause harm to others, see Decina.

OMISSIONS
A person is not guilty of a crime for failure to act, even if the failure permitted harm to another,
and even if the person could have acted at no risk to personal safety unless meets the exceptions.
There are two types of omission liability.
i) Simple omission liability-when you have a straightforward breach of your legal duty to act.
In this case, statute clarifies your duties.
ii) Complex omission liability-(Commission by omissions) Statute criminalizes causing harm
and you cause harm by failing to act. In this case, statute says nothing about omissions.
RATIONALE:
1. Proving the omitters state of mind is too difficult
2. Line-drawing: e.g. 50 people stand by while F attacks V.
a. Difficult questions would arise if omitters could be held responsible: only those
with capacity or knew of the seriousness?
3. Promoting Individual liberty: the law should not be used to coerce people to act to benefit
others.
EXCEPTION: A D may be criminally liable for an omission or forbearance to act only when
there is a legal duty for him to so act.
For omission liability must show:
1. Legal duty to act
2. Omission was the source of the harm
3. D had the Capacity to actmust still show mens rea level for the omission

1.) LEGAL DUTY

Five situations in which failure to act may constitute breach of a legal duty
1. A statute imposes a duty to care for another
2. One stands in a certain status relationship to another
3. One has assumed a contractual duty to care for another
4. One has voluntarily assumed the care of another and so secluded the
helpless person as to prevent others from rendering aid.
5. (From p. 196): One who culpably places another in peril has a duty to
assist the imperiled person.
Miranda-live in boyfriend does nothing when girlfriend beats her child but he has
no duty to act
Carroll-Contrast to Miranda, husband killed daughter, stepmother failed to protect
the daughter but since stepmother was functional equivalent of parent she had the
duty to act.
Jones v. US: Contractual Legal duty through voluntary assumption of care? (190)
Facts: Green and her baby lived for some period of time with Jones (D). Baby died from
neglect and malnutrition. D was charged with the death and at trial, conflicting evidence
was presented as to whether Green had hired D to care for the baby or whether Green was
staying with D and should have been taking care of the baby herself. D wanted an
instruction that the jury must find beyond a reasonable doubt that D had a legal duty to
care for the baby. State argued that 3 and 4 existed (contractual duty and assumption)
Court failed to give the instruction and D was convicted of involuntary manslaughter,
finding that she voluntarily assumed responsibility of friends baby even though not
under statutory or relationship duty. D appealed.
Issue: When a person is criminally charged with an omission to act, must the government
prove there was a legal duty to act?
HELD: Yes, judgment reversed. The jury was not instructed on whether a legal duty
existed: question still remained whether mother was living with and/or paying D, whether
D assumed the care of the baby and so secluded the helpless person as to prevent others
from rendering aid--A legal duty to care must be found. Although the facts would justify
a finding that D had such a legal duty, the evidence is conflicting and issue should have
been given to jury with appropriate instructions. If mom was not present at the time or if
mom paid D to take care of child, then D would be liable. Court cites rule in People v
Beardsley, which says that to be chargeable with manslaughter, the duty neglected must
be a legal duty and not a mere moral obligation, it must be a duty imposed by law or by
contract, and the failure to perform the duty must be the immediate and direct cause of
death.
Pope v. State: Child Neglect-Reluctance to impose liability even when failure is
immoral (194)
Facts: Pope took mother and here 3 month old child into her home because Norris
(mother) had no place to go. Norris was mentally ill and occasionally would go into a
violent religious frenzy. At Ds home, Norris began beating the child, believing that
Satan was hidden within its body. Did did not protect the child or seek police or medical
assistance. Instead, went to church with Norris and brought her back home. Child died
that night from the beating and D charged with child abuse and misprision of felony. D
was convicted and appeals. A person may be convicted of the felony child abuse created
by S35A (Maryland Law Article 27, Section 35A), as a principal in the first degree if
there is sufficient evidence to establish that the person
1. was a parent of or b)adoptive parent of or c)in loco parentis to, or d) responsible for
the supervision of a minor child under the age of 18 years AND
2. caused, by being in some manner accountable for, by act of commission or omission,
abuse to the child in the form of a) physical injury or injuries sustained by the child
as a result of i) crueld or inhumane treatment or ii) malicious act or acts by such
person
Issue: Does a person who charitably assumpes partial support of a parent and child
become criminally responsible for child abuse committed by the parent on the child?

Held: No, judgment reversed. Pope did not have duty for child even though mother went
nuts and was "unconscious" b/c mother was still there and Pope was under no legal duty
to help because did not assume the responsibility. Mother still had responsibility for
child and Pope had no right to usurp that responsibility.
Reasoning: Policy Judgement: People can't be expected to use subjective judgment to
decide when to assume duty for someone else's child; must have notice of duty;
jeopardizes individual liberty; dissuades people from helping others (e.g. taking others
into home) b/c they will not want to assume liability. While D might be morally
culpable, she is not legally culpable.
On the other count, that D knew of the felony and the felon and did not report them, the
Court decided that this common law charge is not acceptable by todays standards, that
the court will not usurp the power of the General Assembly, and therefore the misprision
of the felony is not a chargeable offense in Maryland.
*If mother left home and someone else came in and beat child then D would be liable
because she assumed supervisory responsibility by consenting when mom left home.
*This case is consistent with Jones. Both cases found that Ds didnt have legal duty to
care. In Jones, court said that if mother was not present at the time, or if mom had paid
Jones to take care of the child, then Jones would be liable, but if mother was present, no
legal duty---left it up to the jury. So the cases are consistent.

2.) CAPACITY TO ACT

What is a sufficient act? Required act doesnt have to be successful but must be
reasonably calculated to achieve success. Acts can constitute omissions if they are
ineffectual and not reasonably calculated to achieve success. Court says her acts were
not reasonably calculated. Successful act=no liability but if it is reasonably calculated to
achieve success but no success, then still no liability.
Commonwealth v. CardwellReasonably calculated to achieve success (192)
Ds husband sexually abused her 11-year-old daughter, who told D but D did very little. D was
also beaten by her husband and he carried a pistol.
Issue: Were Ds actions sufficient to overcome the failure to act and 2) Did she have the capacity
to do more?
HELD: No, conviction of child abuse affirmed because her actions were not reasonably calculated
to achieve success. D was still responsible for daughter's welfareher fear of her husband does
not negate her capacity to act. Required act doesnt have to be successful but must be reasonably
calculated to achieve success. Otherwise the meaning of duty of care is eviscerated. Court said
that in those 10 months, Julias only actions to protect her daughter were writing 2 letters to Clyde
about knowledge and anger at his abuse, applying for Alicia to transfer schools, and moving some
of Alicias clothing to Julias mothers house (which later burned down). D still had the duty to
protect her daughter despite fear of her own safety (Dolovich says that this is a moral
judgment written into this opinion). Concurring judge said that Julia could have reported her
husband, could have left the home, or sent her daughter away, and yet Julia endangered her
daughters welfare by doing nothing to prevent the childs continued abuse.

What type of impossibility to act will the law recognize? Certain?Does she have to show
that she was so traumatized by the relationship that she couldnt act or does she have to
show that the threat of bodily harm was imminent?
o Is it impossibility of saving the child? Or is it impossibility
of saving the child without certain harm to self?
Were not sure if Cardwell would have been harmed,
but we are sure that non-swimmer would be if he
tried to save a drowning child.
MODEL PENAL CODE 2.01(3) (pretty much same as common law)

10

Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
(a) the omission is expressly made sufficient by the law defining offense, or
(b) a duty to perform the omitted act is otherwise imposed by law

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MENS REA
(p. 203-224)

Prosecutors burden is two fold

1. What mens rea level is required
2. Did the D exhibit the requisite mens rea
COMMON LAW-Mens rea is a criminal intentthe intent is not the same for all crime. State of mind
of the D. Proof of motive is immatieral in establishing criminal liability. Motives create an intent
to act anda Ds motive may be relevant in proving a certain mens rea, but failure to prove motive
will not prevent a conviction.

Broad Meaning: committing the actus reus of an offense with a vicious will, evil mind
Narrow Meaning: committing the actus reus of an offense with the particular mental state set out
in the definition of that offense.
o Statutory Meaning: mental state required by statute

Attempts to define mens rea: 3 major concepts: intent, knowledge, and recklessness.
1. Intent: it is the defendants subjective malevolence that determines his liability.
a. Common law Definition: Commits the crime intentionally if: (1) it was his conscious
object to cause the result; or (2) if he knew that it was virtually certain to occur as the
result of his actions.
i. Intending the conduct v. intending the result
b. General Intent: any offense in which the actus reus must be committed in a morally
blameworthy manner. Requires only that the accused meant to do the act he
committed (i.e. the prohibited result was substantially certain to flow from the
intentional conduct, even if result that occurred was not subjectively intended.)
General intent may be proved simply by showing that prohibited result was caused
by a voluntary act of the D. Ex. D fires gun into crowd, does not want to injure
someone, but kills B, then D may be held for murder. E.g. breaking and entering
c. Specific Intent: Liability is predicated on intent that is not part of the actus reus.
i. Doing something with the intent to [do something else]. E.g. Breaking and
entering with the intent to commit a felony
ii. Requires proof of an intent or purpose to do some future act, or to achieve
some further consequence, beyond the conduct or result that constitutes the
actus reus of the offense
iii. Acting Willfully-usually requires only a general mens rea but may be
elevated to a standard of specific intent if expressly required by statute.
d. MPC: subdivides intent into its two alternative components: purposely and
knowingly
2. Knowingly: Defendant need not intend a result, she need only know that the result is very
likely
a. Common Law Definition: knowingly if he (1): is aware of the fact, (2) correctly
believes that it exists; or (3) suspects that it exists and purposely avoids learning
3. Recklessness: a conscious decision to ignore a risk, of which the defendant is aware.
Recklessness is criminal negligence plus conscious disregard.
Wanton or reckless conduct-consists of the intentional failure to take reasonable care
when confronting a known risk. Such a failure may be subjective (D having been
actually aware of probable consequeneces of his actions) or objective (a reasonable
person would have known the risk.
Regina v. Cunningham"Malice requires actual intent or recklessness. Establishes minimum
mens rea as recklessness (This is old common law, but existing common law is the MPC view)

12

Facts: Cunningham (D) tore gas meter form wall in house in order to steal money contained in it. He
did not turn off the gas and it leaked into next house and asphyxiated an elderly lady. D was voncivted
under statute for maliciously causing another to take noxious things. D appeals. This case hinges on
the meaning of malicious. Trial court thought it meant wicked- "something that a person has no
business to do and perfectly well knows it." It held him to strict liability standard.
Issue: May a person be voncted under a statute that requires malicious intent when he did not actually
intend to do the harm done and did not foresee the result?
HELD: No, conviction reversed.
Maliciously does not mean wicked requires that D act recklessly with foresight of the actual
consequence, or it requires actual intent to do the particular harm done. Recklessness is where the
D foresees that such harm might occur but does the act anyway. Malciously applies to all
elements of the crime.
Malice does not require that ill will toward person injured be shown, nor does it require that the
act done in itself be unlawful (as the stealing of the gas meter was here)
Jury instructions by trial judge were erroneous, jury should have been left to decide whether D
foresaw possible injury occurring from his act.
Santillanes v. New MexicoDifference b/t Civil and Criminal Negligence
Defendant convicted of child abuse for inadvertently cutting nephew's neck. For there to be criminal
liability, there must be a failure of care greater than that implied by ordinary negligence (called
"criminal negligence" or "negligence plus." the court of appeals overturned the conviction of the man
who slashed his nephews neck. Why? Court was unhappy with the jury instruction by giving jury
instruction of negligence on civil standard and not criminal standard. This is criminal court and it
shouldnt be a civil negligence standard because criminal court verdict of negligence carries with it
more moral condemnation so it would have to be criminal negligence that they find so they sent it back
to the jury.
( For Model Penal Code version, see 2.02(d))

What is difference between criminal negligence and civil negligence? For criminal negligence,
court has to find that
1. Gross deviation from standard of care (as opposed to failure of due care in
civil negligence)
2. Substantial and unjustifiable risk (as opposed to unreasonable risk in civil
negligence
Policy: punishment and the stigma of being labeled a criminal should be reserved for a higher
standard of culpability

Standard of Care
No Liability
ordinary care
Civil Liability
outside of ordinary care
Criminal Liability gross deviation from ordinary care

Nature of the Risk

reasonable risk
Unreasonable risk
substantial, unjustifiable risk

How to determine if act is criminally or civilly negligent? To find if act was criminally or civilly
negligent, you characterize the nature of the risk. For civil negligence, the risk just has to be
unreasonable, and if just unreasonable, that is not enough for criminally negligence, there has to
be very high risk (like playing Russian roulette).
Next, look at the extent or failure of care. If it is just something one could do when not paying
attention, one could be civilly negligent, but if it is gross deviation from standard of care, it could
be criminal negligence.
So with Santillanes v New Mexico, they sent it back to jury to discuss criminal negligence, and
would then show that using a knife in a fight with 7 year old there is gross deviation from standard
of care and substantial and unjustifiable risk.

13

Regina v. FaulknerNo Strict Liability (206) and No Bootstrapping, Need to have mens rea for
the second act unless its felony murder
Facts: Faulkner was convicted for maliciously setting fire to the ship. Jury instruction: although the
prisoner had no actual intention of burning the vessel, if they found he was engaged in stealing the
rum, they ought to find him guilty. Because he intended one thing, he should be criminally liable for all
consequences whether he intended them or not. Prosecutor tried to bootstrap arson conviction to
larceny conviction, trying to get strict liability standard.
HELD: Conviction reversed sailors conviction for the malicious destruction of a ship, which was the
result of an accidental fire caused by the sailor while stealing rum. Although sailor was culpable for
theft of rum, court held that D was not responsible for every unintended result caused by theft. Court
(judge Berry) says no bootstrapping and they have to prove recklessness for the second crime (and
even concurring judge Fitzgerald who pushes negligence says noone could have foreseen the ship
burning).
*Bootstrapping is only allowed when the second crime is homicide. Ex. If he was stealing the rum,
burnt ship down, and sailors died, they could bootstrap it and he could be liable.)
(See Model Penal Code 2.02(1))

Prosecutor has to prove the actus reus requirements, then it is 2 step analysis to prove mens rea.
1. What mens rea level is required for each element of the defense?
2. Did D satisfy mens rea with respect to each element?

14

MODEL PENAL CODE 2.02

Minimum Requirements of Culpability: a person is not guilty of an offense unless he acted purposely, knowingly,
recklessly or negligently as the law may require, with respect to each material element of the offense. Model Penal
Code attempts to mitigate the difficulties of mens rea through three distinct toolsmanageable categories, precise
definitions, and convenient default rules. It eliminates the use of general intent, specific intent, and other ambiguous
common law terms, replacing the 10 plus varieties of common law mens rea with just four mental states/four levels
of culpability. It requires that one of these levels must be proved with respect to each material element: of the
offense which may involve the nature of the forbidden conduct, the attendant circumstances, or the result of conduct.

2.02
(1) Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely,
knowingly, recklessly, or negligently as the law may require with respect to each material element
of the offense.
(2) Kinds of Culpability Defined:
a. Purposely: A person acts purposely when: WDP
i. It is his conscious object to engage in conduct of that nature or to cause such a
result; and
ii. He is aware of the existence of attendant circumstances or believes/hopes they
exist.
b. Knowingly: A person acts knowingly when:
i. He is aware that his conduct is of that nature or that such circumstances exist;
and
ii. He is aware that it is practically certain that his conduct will cause such a result.
c. Recklessly: D acted with conscious disregard of a substantial and unjustifiable risk to
another. He consciously disregards a substantial and unjustifiable risk and its
disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe (it is criminal negligence + conscious disregard)
i. When talking about recklessness, there are 2 variables
1. Ds level of knowledge (subjective)
2. The amount of the risk (nature of risk is objective)
d. Negligently: D should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. Risk must be of such nature and degree
that his failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care of a
reasonable person would observe in the actor's situation.
(3) When mens rea level is not defined, it is at minimum recklessly. (MPC disfavors strict liability
and is not a big fan of negligence. If there is going to be a criminal act, the persons themselves
should have realized the wrong before they did it. MPC says legislatures are free to criminalize
people for negligence, but statutes must clearly state that they intend to do that)
(4) When only 1 mens rea level is specified in the statute, it applies to all elements unless otherwise
stated.
(5) Hierarchy: 1) Purposely 2) Knowingly 3) Recklessly 4) Negligence: when the law requires
negligence, all four will suffice, recklessly, only the first three will suffice
(6) The knowledge requirement is satisfied by knowledge of high probability
(7) Knowledge of existenceis established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist.

15

Mens Rea Subjective and Objective Standards

Purposely
Knowingly
Recklessly

Negligently

Standard
Subjective: did they actually have a
conscious objective
Subjective: did they actually know
Subjective: did they actually have a
conscious object
Objective: was it substantial and
unjustifiable risk
Objective: what the reasonable person
would have done
Objective: was it substantial and
unjustifiable risk

Recklessness vs. Negligence

The factor that distinguishes recklessness from negligence is awareness that there is a risk, and that the
risk is unjustifiable.
-- Recklessness:
-- more culpable because the person was aware of the danger, but acted anyway
-- the fault was choosing to run the risk
-- Negligence:
-- less culpable because the act is inadvertent
-- the person should have been aware of the danger, but was not
-- the fault was inattentiveness
Recklessness is the minimum level required if a statute is silent on mens rea (MPC 2.02(3))
Policy: at the very least, the person should have been aware of what they were doing in order to be
punished for it (R), and if the legislature wants to punish a particular act without requiring awareness,
they should have to make it explicit
ISSUES WITH MENS REA
1. Does a mens rea term apply to all or some elements of the offense?
a. Legislative intent: try to find out what the legislature intended.
b. Placement of the mens rea term in the definition:
i. A mens rea term never modifies an earlier phrase
ii. With a later phrase??
c. Punctuation: separated through punctuation
d. Attendant Circumstances:
i. Many courts assume that, absent evidence to the contrary, mens rea terms
don't apply to attendant circumstances.
e. Model Penal Code:
i. The mens rea term applies to every material element unless there is a
contrary legislative intent for it not to.

16

3 TYPES of Elements in a Statute

Material Element: component of the crime that prosecutor has to prove in itself and prove the mens rea.
The key element is conduct. (see MODEL PENAL CODE 1.13(9))
1. Conduct: commission or omission
i. Every criminal statute has conduct element, because there needs to be an act and
you cannot punish for your thoughts alone. This may be explicit or implicit in
the statute.
ii. When thinking about conduct, ask
1. Was there a voluntary act?
2. If no act, was there omission liability? Did the failure to act cause the
harm and did D have the ability to act?
2. Result: There may or may not be result element in statute. The result of homicide is dead
body.
3. Attendant Circumstances: there may be attendant circumstances in statute--other
aspects that have to be in place that prosecutor has to prove for there to be a conviction.
i. Ex. Burglary is entering a building with intent to commit a burglary, but the
circumstance used to be that it had to be at night to be convicted, so the fact that
it was night was a material element.
ii. Ex. Fact that you released a gas is not enough; prosecutor has to prove that it was
gas that was noxious thing.
Example: Cunningham (stolen gas meter)
1. Conduct Element-to administer to or cause to be administered to
2. Result-to endanger the life or produce bodily harm
3. Attendant Circusmstances-that gas is a noxious thing
*Then you have to figure out what the mens rea category is for each element
and if the D exhibited the requisite for the mens rea.
CA Burglary Statute: Any person who (unlawfully) enters a building with the intent to commit a felony
therein is guilty of burglary. Every burglary of an inhabited dwelling is 1 st degree burglary.
Now find the elementsconduct result and attendant circumstances (Burglary is trespass with intent to
commit a felony therin)
The conduct is entering the building unlawfully (actus reas)
Intent to commit a felony therein is not part of the conduct but it is its own element of specific
intent which is sometimes an extra element in addition to conduct, result, and attendant
circumstance.
There is no result.
The attendant circumstance is if that the building is an inhabited dwelling.
Prosecutor with burglary has to prove recklessness and intent to commit a felony in addition to
entering the building (the actus reas). Because of the specific intent, prosecutor has to prove
purposefully. The intent is a separate entity so purposely applies to it and recklessness applies to
entering unlawfully and a building that is an inhabited dwelling (we know its recklessness
because it does not specifically say). In CA, an inhabited dwelling is any place used for
residential purpose even if person is not home. Once prosecutor proves unlawfully enter building
and inhabited dwelling (recklessness) than the prosecutor also has to prove purposely specific
intent.
Burglary is trespass with the intent to commit a felony once inside. To prove trespass recklessly,
when the enter the building it has to occur to them that it could be unlawful. If it never crosses
their mind, then they are not reckless.
There are policy reasons why the burglary of inhabited dwelling is more serious crime because
they want people to feel safe in their homes. So maybe negligence (reasonable person standard)is
the best mens rea category for whether inhabited dwelling or not.

17

Hypo: Imagine a D is homeless and she sees home empty and she goes in to get warm. She did not
commit burglary because she didnt go in to commit a felony, but she did commit a trespass (a
misdemeanor).
Hypo: Suppose she happens to see a tv inside once she is there, she is not guilty of burglary because she
did not enter with intent to steal, but she is guilty of trespass and theft.
Hypo: Suppose you go to your parents house for dinner with intent to steal moms jewelry, is it burglary?
You didnt unlawfully enter because you came by invitation but prosecutors could argue that even though
you had the invite it was not lawful entry if you had intent to commit the felony.
*You have to distinguish their intent when they enter the building from their intent that develops
once they are in.
Hypo: If the burglary term was knowingly and D goes into gift shop but finds the owner of the store has
an apartment attached, is it 1st degree burglary or 2nd degree burglary (uninhabited building)? 2nd degree
because by applying section 2.02-4 there is only one mens rea term of knowingly and it applies to all
elements and he did not knowingly enter an inhabited dwelling.
-- Offences against the Person Act 23:
-- mens rea: recklessly or above
-- conduct: administer or cause to be administered a substance
-- result: thereby endanger her life or inflict grievous bodily harm
-- attendant circumstance: substance is poison gas
-- Burglary (NY):
-- mens rea: knowingly or above
-- conduct: enter or remain unlawfully
-- attendant circumstance: building is a dwelling
-- specific intent: intent to commit a crime
-- Larceny:
-- mens rea: knowingly or above
-- conduct: taking and carrying away
-- attendant circumstances: the personal property of another
-- specific intent: intent to permanently deprive the other person of his property
-- Receiving Stolen Goods:
-- conduct: receiving stolen property
-- specific intent: with knowledge that it is stolen

18

III. HOMICIDE
MURDER
The unlawful killing with malice aforethought
COMMON LAW
A killing of a human being by another human being with malice aforethought.
Malice Aforethought: originally meant that the actor thought about the killing beforehand. Over time,
this became: the malicious mental state of the killer must occur before at the time of the homicide.
MALICE
A person acts with malice if she unjustifiably and inexcusably kills a person with any one of four
mental states:
(A) The intent to kill-conduct, accompanied by an intent to kill, that causes anothers death
constitutes murder, unless there are mitigating circumstances present, or the homicide is
either justifiable or excusable
(B) The intent to inflict grievous bodily injury-conduct coupled with intent to do serious
bodily injury but without an intent to kill, which causes anothers death, constitutes
murder.
(C) Depraved heart-reckless conduct that a reasonable person would realize creats a high
degree of risk or death or serious bodily injury to another, which actually causes the death
of another, may constitute murder. It is An extremely reckless disregard for the value of
human life; or
(D) The intent to commit a felony and during the commission or attempted commission of
which a death accidentally occurs (felony-murder rule)
(A) INTENT TO KILL
First degree murder: First degree murder is all homicide with malice aforethought that is either
(i) encompassed within the felony-murder rule of the jurisdiction (usually heinous felonies) or
(ii) willful, deliberate, premeditated. Best example is someone lying in wait with a gun. [PA
model: 1. morally heinous (poison, lying in wait) 2. premeditated, 3. killings that take place during
certain enumerated felonies.]
Intent to kill is formed with reflection, deliberation, reasoning, or weighing.
1. Willfull-D must actually intend to kill
2. Deliberate-D must be possessed of a cool mind that is capable of reflection
3. Premeditated-D, having a cool mind, must in fact reflect before his act of
killing. The Ds state of mind is decisive during the length of tiem between
the formation of the idea to kill and the actual killing
These are subjective states of mind. The existence of these elements must be
determined from the Ds conduct in light of the surrounding circumstances.
Commonwealth v. CarrollPennsylvania 1963-No distinction between 1st and 2nd degree
murder. PROSECUTION WANTS THIS APPROACH. Irresistible impulse does not preclude
premeditation. Under Carroll, any intentional killing is 1st degree willful, deliberate, and
premeditated murder because premeditation occurs in as little time as time to pull trigger
Facts: Carrol (D) was convicted of 1st degree murder after he took a gun from near the bed and
shot his wife twice in the back of the head while she was lying on the bed asleep with her back to
him after they had an argument. Ds wife suffere from mental disoreders and was allegedly

19

sadistic and nagging. Psychiatrist testified that Ds act was an impulsive automatic reflex
homicide as opposed to an intentional premeditated homicide. D appeals, claiming that his crime
was at most 2nd degree rather than 1st degree murder.
Issue: May a person be guilty of 1st degree murder when acting out of an irresistible impulse?
HELD: Yes, judgment affirmed.
Defendants little time to premeditate killing is sufficient. The space of time/length of
premeditation doesnt matter if there was an intent to kill. No time is too short to premeditate
murder.
The intent to kill for 1st degree may be found from Ds own words or coudct or surrounding
circumstances together with intentional use of dealy weapon.
The fact that D may not have established a plan to dispose of the body or escape is no defense
if he acted deliberately.

Psychiatrists testimony that there was no premeditation should not be believed because Ds
own testimony that he remembered the gun, took it down, and fired two shots into head of his
sleeping wife contradicted it
Relationship between D and his wife leading up to the murder may have created an irresistible
impulse or an inability of D to control himself, but could not excuse his deliberate act.
Class discussion
o Arguments why not premeditated-the gun was there for her, too short of time, no
escape plan, almost seems like he was in disembodied state
o Arguments why premeditated-there was no provocation, she was sleeping, kids were
being abused so he has that to think about, five minutes elapsed between his wifes
last remark and shooting, he said he thought of the gun and then reached for it, he
had plenty of time to plan
Young v. State(400)-follows Carroll
D playing cards and scuffle broke out and he killed 2. HELD: first degree murder. "No
appreciable space of time b/t the formation of the intention to kill and the act of killing" required.
Premeditation and deliberation may be formed while pressing the trigger.
NOTE: Under Pennsylvania/Carrol and Young approach, every intentional killing is a
premeditated homicide. These standards blur the distinction between intent and premeditation. If
so, why would the legislature have divided the crime into degrees?
Problem: Prevents the idea of deterrence because the penalty for 1st v. 2nd degree murder is
different.

Other definitions of premeditation:

Pennsylvania: a conscious purpose to bring about death proves premeditation

Alabama: the fact that you fired the gun proves premeditation.

Expanding the time necessary to find premeditation

State v. GuthrieThe distinction between 1st degree and 2nd degree murder restored. Some time has
to elapse between formation of intent to kill and the killing to have reflection and premeditation.
DEFENSE WANTS THIS APPROACH and would push for reflection while prosecution would just
say there was time and that was enough. Guthrie relies on Anderson, which lays out factors to
determine premeditation.
Facts: 3 co-workers, dishwashers, were joking in restaurant kitchen and poked fun at Gurthrie (D) who was
in bad mood. Farley told D to lighten up and snapped him with dishtowel and when it his his nose, D
became enraged, move toward Farley, and pulled knife from his pocket and stabbed him in the neck. D
then stabbed him in the arm as he fell to the floor. D has obsession with his nose and suffers 2 panic attacks
daily and said he suffered an intense panic attack just before the stabbing. The defendant pulled a knife
from his pocket and stabbed the victim in the neck after victim snapped him with towel. Jury Instruction
on premeditation: to constitute willfull, deliberate, and premeditated killing, its not necessary to show that
intention existed for any length of time prior to actual killing but only to show that intent to kill existed
only for an instantthat WDP means that killing be intentional (Schrader definition). One must show that

20

such intention came into existence for the first time at the time of the killing. D was convicted of 1 st degree
murder and appealed.
Issue: Were the jury instructions, when given together, wrong and confusing?
HELD: Yes, judgment reversed and remanded.
The jury instruction virtually eliminates the distinction between first and second degree murder. The
instructions also confuse premeditation with intent to kill. Trial court should have instructed jury that 1 st
degree murder is intentional, deliberate, and premeditated, which means the killing is done after a period of
time for prior reflection. The accused must kill purposefully after thinking about the intent to kill.
Although premeditation and deliberation are not measured by any particular period of time, there must be
some period between the formation of the intent to kill and the actual killing, which indicates the killing, is
by prior calculation and design. This means there must been an opportunity for some reflection on the
intention to kill after it is formed.
One who meditates an intent to kill and then deliberately executes it is more dangerous and culpable or less
capable of reformation than one who kills on sudden impulse. There has to be some time between forming
intent and killing. Prospect of death penalty is most likely to deter men from deliberate rather than
impulsive murder.
Class Discussion-Guthrie would be found guilty of 2nd degree murder because he just lost his cool and
stabbed victim blindly but under Guthrie, Carrol would still be 1st degree murder because D was not
provoked for 5 minutes, had violent relationship, and stronger motive.
On Guthrie approach, there can be an intentional killing that is not 1st degree murder. A person who acts
spontaneously like in Young there is no time for reflection and no evidence of deliberation, so they would
be guilty of 2nd degree murder.
Courts reasoning has contradiction-it first says that time alone is needed but then says there needs to be
conscious reflection.

Guthrie relies on FACTORS TO DETERMINE PREMEDITATION (as layed out in Anderson)

Planning activity: (post murder activities can indicate this)
Prior relationship between D and victim: (indicates motive)
Nature or manner of the killing: (to show preconceived design)
SECOND DEGREE MURDER: all intentional killings that are not willful, deliberate, and premeditated.
To distinguish between 1st and 2nd degree, 1st degree are the worst, most heinous killings. 2nd degree
murders are slightly less heinous, less troubling.
1. No premeditation-Those murders committed with the intent to kill but lacking premeditation
and deliberation are of the 2nd degree
a. Intentional-Both 1st and 2nd degree murder include intentional homicide. The only
difference between 1st and 2nd degree murder exists in the degree of premeditation (a
difficult distinction to make)
b. Voluntary manslaughter-If rational of 2nd degree murder is that it does not involve
premeditation, then conflict between it and intentional (voluntary) manslaughter
arises. Voluntary manslaughter does not include malice (since it arises from a sudden
passion and on adequate provocation) so the difference between voluntary
manslaughter and 2nd degree murder is in the adequacy of the provocation that causes
the killers acta more substantial provocation must be required to classify homicide
as voluntary manslaughter.
PROBLEMS WITH THE DIVISION
Society seems to want heinous crimes to be first degree and less heinous crimes second degree.
People v. AndersonProblems with premeditation as the basis for murder 1 (403)-D convicted of
second degree murder when brutally beating young girl (ABSURD!)

Stepfather stabbed 10 yr. old stepdaughter 60 times. Only guilty of second degree murderinterpret
premeditation like one would expect to be in the dictionary (reflection, weighing of alternatives,

21

planning). Anderson court held 2nd degree murder, because based on the nature of the killing he was
emotionally disturbed, it was more of an eruption than a preconceived intention to kill.
*We want to convict him of murder 1 because his crime was so heinous.
State v. ForrestEuthanasia: Murder 1 (404)-convicted of 1st degree murder when trying to help his
fatherabsurd compared to above Anderson case!)

Defendant wanted his father to die less painful death so took gun to hospital and killed him. He was
convicted of first degree murder because fact that he was sobbing when going in shows that it was
premeditated.
There is trial process to figure out what really happened and you could show whether they were
actually acting out of love (Forrest case) or whether just wanted to inherit the money. You can make a
slippery slope argument.

Is it correct to punish a person who premeditated the murder more than one who killed on
impulse because the one who premeditated the killing is more dangerous (deterrence)?
o If you plan better, you can escape.
The idea is that the deliberation requirement of 1st degree separates it into cold-blooded
v. hot-blooded killingso if you plan it, you're more wicked (retributionist).
Is WDP the right way to distinguish between 1st and 2nd degree murder. Pillsbury say for
distinction you should look at the motive rather than WDP reigning doctrine, and
Pillsbury is critiquing the WDP doctrine. Anderson case you should look at the motive
and not necessarily WDP.
In leaving it to the jury, does Carroll really just allow them to pick the most heinous
crime?
Is Anderson test not as good because it doesnt do this?

MODEL PENAL CODE210.1 only criminal homicides MPC has in murder, manslaughter, and
negligent homicide. There is no 1st vs. 2nd degree distinction.
Sample answer says: If court looks to MPC for guidance, they will not face the problems in determining
whether murder was premeditated or not. Section 210.2 only requires that she killed knowingly or
purposefully to be convicted of murder.
1. Abolishes the distinction between first- and second-degree murder
2. Death eligible killers:
a. Purposely
b. Knowingly, or
c. Recklessly under circumstances manifesting extreme indifference to the value of human
life.
i. Purposely and knowingly are the common law equivalent of intent to kill
ii. Recklessly is similar to the extreme recklessness (this is the equivalent depraved
heart) form of common law murder
1. To constitute murder, the recklessness must occur under circumstances
manifesting extreme indifference, if not, then death is voluntary
manslaughter.

22

MANSLAUGHTER
Manslaughter is those killings we decide are less culpable.
VOLUNTARY MANSLAUGHTERIntentional killing + PROVOCATION (Common Law Heatof-Passion)
Murder committed in sudden heat of passion, as the result of adequate provocation.

Voluntary manslaughter is an intentional killing plus the provocation defense. This is because
typically if there was provocation, it was done in heat of passion, and no time for reflection, so
then the question is usually if it is 2nd degree murder or voluntary manslaughter. It is voluntary
manslaughter when it is an intentional killing that court has finds satisfies an adequate
provocation defense. A synonym is the heat of passion defense. Provocation defense is available
only if the offender moves quickly (succumbs to provocation right away); too much delay can
lose the defense.
The idea of provocation is that a reasonable person might act from passion rather than
reason and if they kill, they wont exculpate you but will mitigate the sentence because your
killing is not as culpable.
4 ELEMENTS NECESSARY TO GET PROVOCATION DEFENSE(See Maher)
1. Defendant acted in the heat of passion. (Subjective)
2. There was legally adequate provocation (Objective)
3. Killed before sufficient cooling time. (Objectivefrom perspective of reasonable personusually be a jury question unless time was so obviously short or long that judge decides)
4. Defendant had not actually cooled. (Subjective)
COMMON LAW LIST OF PROVOCATION:
a.
b.
c.
d.
e.

Victim of extreme assault or battery

Mutual combat
Defendants illegal arrest
Injury or serious abuse of a close relative
Sudden discovery of a spouses adultery (fazed out)
Judge decides as a matter of law whether the act was reasonably adequate provocation
Girouard v. State-Majority Common Law View Words are NEVER enough. Not on listNot
taken to jury. Provocation is a matter of law (must be in the box)
Facts: During argument with his wife, Girouard (D) stabbed her 19 times after she graphically
disparaged his sexual ability (lousy fuck), said she did not love him, demanded a divorce, and
told him she had filed charges to have him court-martialed. D then non-fatally slit his own wrists
and called the police. Police found D wandering around, despondent and tearful. D was convicted
of 2nd degree murder.
Issue: Should the mitigating factor of provocation be limited only to the traditional circumstances
of: extreme assault and battery upon a D, mutual combat, illegal arrest, injury or serious abuse of a
close relative, or sudden discovery of a Ds spouse committing adultery?
Held: Yes, 2nd degree murder conviction affirmed. Words alone are not legally adequate
provocation to mitigate a 2nd degree murder charge to manslaughter. Reasoning: Judge's role is to
determine initially whether the provocation falls into the categories of legally adequate
provocation. If it does, then jury will decide whether it applies in that specific case.
DEFINITION: To be adequate, it must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the moment from passion rather than
reason and words alone are not enough. (Standard is one of reasonableness and it has
not been met here)

23

PROBLEMS: This is problematic b/c you define provocation and limit the list. But if the
court held the other way, wed be giving people a license to kill. Domestic arguments
easily escalate into furious fights and court finds no reason to favor those who find the
easiest way to end a domestic dispute as killing the offending spouse. Court doesnt want
to say speech is provocation because then they would have to determine all cases when
speech was involved and if it adequately provoked or not
You can act from passion and not kill
This standard seems to justify anything that will make a person act unreasonably
Do we look at the reasonable person in the abstract or in the situation or
characteristics of the actor?
***Court finds that judge has discretion to determine standard not jury.
There are 4 elements needed to make provocation defense and this court only relies on
that D did not have one of them, under legally adequate provocation. To get the
defense, need all four prongs.
1. D acted in heat of passion-subjective
2. Under legally adequate provocation-objective
3. Before sufficient time to cool-objective (understood from perspective of a reasonable
person)
4. D had not actually cooled-subjective

The jury decides provocation unless it is "so clear as to admit of no reasonable doubt"
because judges may not have experiences of everyday people (Maher decision)
ASSAULT WITH INTENT TO KILL
Maher v. PeopleMinority view-Marital infidelity justified mitigation to VM. What is
adequate provocation? Taken to the jury. This more lenient approach is recognized in most
states today. (CA is Maher jurisdiction). Provocation is a matter of fact)
Facts: Maher (D) was convicted of assault with intent to kill. Defendant saw his wife and Hunt go
to the woods < hour before the assault. Before he killed Hunt, a friend told him that Hunt slept
with his wife the day before. D tried to kill a man he had been told had sexual intercourse with his
wife. Trial court excluded evidence of provocation on the rule that the provocation had to be
committed in the presence of the D. D appeals.
Issue: To be admissible, must provocation have been committed in Ds presence?
Held: No, judgment reversed.
Evidence should have been admitted. Acts amounting to provocation need not be committed
in Ds presence. Adequate provocation is that which would provoke a reasonable person,
before a reasonable time has elapsed for the passion to cool, and is the result of temporary
excitement.
Here, D seeing his wife and another man go into the woods and being told that his wife had
sex with the man the day before was sufficient evidence to go to the jury on the issue of
provocation. The provocation was sufficient to justify a conviction under manslaughter rather
than 2nd degree murder.
This court wants to bypass the box and go straight to the jury because jurors are better
qualified to judge provocation and the standards of ordinary human nature and times change,
suggesting that it would be a mistake to restrict categoriesthere are provocations that the
courts never thought of that the jury might find.
DISSENT: worried that the provocation defense will be overused: the cause of the
provocation must occur in his presence. The innocent as well as the guilty, or those who had
not as well as those who had given provocation, might be the sufferers.
Problem with Majority: They could have been planning surprise party and it would have been
provocation and lessened Ds sentence and you are punishing both the innocent and the guilty
victim.

Maher Distinction from Giruard: Giruard said if youre not in box of 4 things, then provocation
defense is not adequate (if you were in box it would have been sent to a jury), and this case says
that there is no box and sends it back to the jury. In Maher the jury is deciding whether the acts
were reasonable person to act out of passion rather than reason.

24

While Giraurd case is common standard (stick to the box), the Maher decision is emerging
standard, that the judge shouldnt limit the context of when a person reasonably acts from passion
rather than reason and that it should be left up to the jury (dont just stick to the box). It should
be left to facts of each individual case.
THE RULE ON SPEECH AS PROVOCATION: In most jurisdictions words are not enough
for adequate provocation (Giruard), but some states are now allowing some words describing
situations in the box are enough. But what if man tells you he raped your daughter, a reasonable
person with act out of passion rather than reason, but speech is not protected, so maybe the box
should be extended to words that describe the act. But someone could have bad sense of humor
and be lying in his speech and D would get lesser sentence for killing. If it would be reasonable
for person to react to what person said, then it would be adequate provocation. But we might not
want jury to answer that type of question and limit it to the box because we want to have some
control over what juries will find, so we can create normative judgment because juries might be
more whimsical.
TWO WAYS TO EXPLAIN PROVOCATION (Common Law)
1. Partial Justification: it looks at what the victim did. (Maher dissent endorses this)
a. Yes, I did this act and am fully responsible but
b. It was the right thing to do
2. Partial Excuse: it looks at what the perpetrator did: (Maher majority/Mauricio) the act was
committed in consequence of the passion excited by the provocation
a. Yes I did this bad act
b. You shouldnt find me guilty because Im not responsible. (E.g. insanity)
NOTE: the difference between the two is significant because it determines the burden of
proof. What if killed wrong victim? Partial Justification: no manslaughter mitigation
because Vs actions didnt partially justify Defendants actions. Partial Excuse:
Misaim ok, probably still manslaughter.
Emerging rule is that Ds honest believe that D is killing the provoker is a defense
(Maurici0). This is the rule at least in some jurisdictions including PA. D who knows
that the person he or she attacks is not the provoker gets no defense (Scriva).
State v. Mauricio (views provocation as partial excuse)-bouncer forcefully ejected D from a bar.
He slammed D against wall then kicked/pushed him down stairs. D waited outside for bouncer to
emerge and mistook a patron for bouncer, followed him, shot him dead. NJ Supreme Court
reversed murder conviction, holding that trial judge erred in refusing to give voluntary
manslaughter instruction.
Rex v. Scriva-father observed car driver knock down and severely injure his daughter. Father,
brandishing a knife, went after drivera bystander attempted to restrain him and father then
fatally stabbed the bystander-Did not get sentence mitigated to voluntary manslaughter.

Maher majority says provocation is a partial excuse: its partial excuse: says law
recognizes the frailty of human nature, so its not that the victim was guilty, but that
human beings are week and that D did bad act but wasnt fully responsible because
humans by nature are weak.
HYPO: What if you see a photograph of someone raping your daughter? Is that enough for provocation?
A picture is proof of the thing, so innocent person wouldnt be harmed, and it is more than words.

25

HYPO: What if the dad shot the rapist 2 years later? There was sufficient cooling time so it is not
adequate provocations since a reasonable person would have cooled, so this is murder and not voluntary
manslaughter.
HYPO: What if the rapist sees the dad 2 years later and starts laughing and talking about the rape, then is
it provocation? There is rekindling after the 2 year sufficient cooling time, but Arnolds words and rude
gestures are not enough for provocation. Rekindling is like a bootstrapping idea, if words rekindle
something from long time before, some jurisdictions hold that there is adequate provocation because the
provoker ignited the passion of man.
HYPO: What about just seeing the rapist in the street upsets the dad, isnt that enough for rekindling and
therefore provocation? No because this would be problematic in so many situations, there has to be a
subsequent conduct on part of the victim in order to satisfy rekindlinglaw says that they expect you to
have some self control when sufficient cooling time.
MURDER v. MANSLAUGHTER
a. Murder involves a killing with malice aforethought whereas manslaughter occurs without it
b. Manslaughter: Intentional killing done in the heat of passion
c. Unintentional killings: an unintentional killing can constitute either murder or manslaughter.
(Three of the four categories of malice for murder involve unintentional killings).
i. Recklessness v. negligence: a reckless killing is murder whereas a criminally
negligent one is manslaughter.
SEXUAL MISREPRESENTATION AS PROVOCATION
Araujo case-Araujo was biologically male but dressed as woman and went to party and had sexual
relations with one or more of the defendants, but when Ds found out that she was a male, beat her and
killed her. Ds argued that they should get provocation defense since Araujo deceived them and upon
finding out they had been deceived, they had a passionate response. They argue that having sexual
intimacy with someone who turns out to be the other sex would be legally adequate provocation.

Under Giruard, Ds would not get the provocation defense because sexual
misrepresentation is not in the box (But defense attorneys argue it was equivalent to rape)
Under Maher, it would go to the jury. It would not go to a jury when it is so clear that a
reasonable person would not have acted from passion rather than reason, but this case is
not so clear so it should go to the jury.

Bigler says we have a provocation defense which allows murder to be mitigated to manslaughter when a
reasonable person would act from passion rather than reason. What can be considered adequate
provocation can change over time. Bigler says we need to change the common law approach to reflect
todays standards and wants to put a limitation on Maher-the jury shouldnt be allowed to just do what
they will with it. So Bigler creates a standard
BIGLER standard: Sexual misrepresentation constitutes legally adequate provocation when
1. D a) engaged in sexual act, b) while in a reasonably deceived state of mind
2. concerning a fact reasonably material to consent
3. and which would be likely to cause a reasonable person a severe mental or emotional crisis upon
discovery.
Each of the prongs are a jury questionwhether each is reasonable, all are open to determination and
open to the jury. If you satisfy each of these factors you should get the defense of adequate
provocation.

26

1A leaves what a sexual act is up to the jury, but the jury has to find some intimate sexual
action. Bigler gives ex of Brandon TeenaDs hung out with Teena and when they found
out she was male, they killed her. Bigler is clear that in that case, friendship doesnt
qualify.
1B is an objective standard and subjective standard (double burden on the D to prove)if
the Ds already suspected the possibility that Araugo was male, on Biglers standard, they
wouldnt be entitled to the defense even though a reasonable person could have been
deceived (defense argues that they had no idea until after the act that she was male)
But the problem is with prong 3, that its hard to say who the reasonable person is
everyone on jury would think differently in different part of the country. But this case
was the central valley. In any case, there is problem with finding what a reasonable
person would do.
Hypo: What about when a victim is a third party? Think about araujo, and

imagine that they could get the provocation defense, but imagine that they
followed araujo after and attacked someone who they thought was araujo? Could
the Ds get the defense still? Could say yes because they still acted from passion
rather than reason.
Hypo: Now imagine that Ds chase after supposed araujo and friend says stop,
what youre doing isnt right person and then D kills that friendthen what
happens? No provocation, because in first scenario, they thought they were killing
the provoker and was mistaken, but in this case, D knew full well that victim
wasnt the provoker and misdirected their rage at the victim (acting knowingly or
even recklessly could deny you the defense).

27

PERSONALIZING REASONABLENESS FOR PROVOCATION:

To what extent should it be personalized?
BedderAbstract reasonable man, no particularization (doesnt look at the Ds
circumcumstances) Prosecution wants this standard
Facts: Prostitute taunted impotent male and he killed her.
HELD: Jury was instructed to consider whether a reasonable man who was not impotent would
have reacted in the same way. Reasoning: it would be illogical not to consider an excitable or
pugnacious temperament in the accused but yet recognize unusual physical characteristics.
Problem with the Standard: This denies him of the provocation defense because they wont
look at his circumstances. Bedder is not a good standard because it ignores the reason for the
reaction, and it is unfair if you dont instruct the jury to see it as reasonable jewish person or
reasonable impotent person, and it says that anybody who is different than the mainstream
doesnt get the benefit of the defense. The only people under the Bedder standard who get the
provocation defense are the majority. But if you say the reasonable jewish person, or the
reasonable impotent person, then you would end up giving the defense to everybody.
CamplinGravity of the provocation/Ds cicumstances included (PG 408) Defense wants this
standard.

Facts: 15 year old boy was sodomized and ridiculed and killed man with a frying pan.
HELD: Camplin court reverses trial court, and says the reasonable man should be the same age
and gender. Court is saying that there are some characteristics that go to the gravity of the
provocation--necessary for the jury to understand why the provocation was so serious. (But is
this biased towards women because men are more easily provokedmore mitigation?)
Self control: he can control excitability; no instruction based on characteristics you can
control
Gravity of the provocation: instruct on this (regarding age), or other characteristics you
cannot control
Problem with the Standard: The odd thing about Camplin is that as a young boy, you are less
able to control your reactions, but Camplin court rejects the Bedder standard and does not look
at characteristics of self control. Camplin tries to navigate between unfairness of Bedder (not
using individual characteristics) and everyone getting the defense by setting up gravity of
provocation v. capacity for self control distinction. (but some self control characteristics are
immutable-alchoholism or hot temper).
Hypo: Under Camplin, drunk person being provoked about wifes infidelity, Camplin standard
would direct jury to see reasonable person as a sober person (because they dismiss the self
control characteristic). Does not take into account that the person is presently drunk.
HYPO: So under Camplin, you could say in jewish epithet case you could say that the
reasonable person is the ordinary jewish person.
Morhall case-glue sniffer addict is taunted and attacks someone for taunting him. Court
instructs jury to take the position of a reasonable glue sniffer (follows Camplin)
Regina v. Smith-PG 410-about alcoholic--Rejects Bedder standard and rejects the Camplin
standard and says that you should look at the situation, see if there is any characteristic of the D
(subjective plus objective) that would be unjust not to take into accountasking jury what it
thinks is fair.

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MODEL PENAL CODE on Voluntary Manslaughter EED

MPC DISTINCTION FROM COMMON LAW Heat of Passion DEFENSE
MPC has no provocation defense but instead has Extreme Emotional Disturbance
Defense.
The extreme emotional disturbance defense is an outgrowth of the heat of passion
doctrine but the MPC formulation is significantly broader in scope than the heat of
passion doctrine which it replaced. For heat of passion defense, must be immediate, but
extreme emotional disturbance could be building up in Ds mind over time. With extreme
emotional disturbance, you dont need a trigger event like you do with provocation.
Provocation is the common law doctrine for heat of passion claim and requires provoking
event and Extreme emotional disturbance is MPC doctrine for heat of passion claim but
does not require provoking event or cooling time.
Manslaughter under the MPC is reckless killing not done under circumstances
manifesting an extreme indifference to the value of human life.
210.3(1)(b): EXTREME EMOTIONAL DISTURBANCE (MPC)
TWO ELEMENTS:
1. Defendant must have acted under the influence of extreme emotional
disturbance (subjective), and
2. There must have been a reasonable explanation or excuse for the disturbance
(both subjective and objective).
a. The reasonableness of which is to be determined from the viewpoint
of a person in Defendants "situation" in the circumstances as he
believes them to be. (417-424)
People v. CasassaMore particularization
Facts: Casassa (D) became infatuated with Lo Consolo, who rejected Ds advances. D
eavesdropped on her apartment and finally took several bottles of liquor to Ds apartment but
she rejected them and D then stabbed her to death because she was not falling in love with
him. D claimed as defense that he acted under influence of extreme emotional disturbance
based on his obsession with her. State witness testified that Ds mental state was result of stress
he created within himself. Trial court found D guilty of 2nd degree murder on the ground that
the test of extreme emotional disturbance was objective, not subjective, and that Ds emotional
state was so peculiar to him that it could not be considered reasonable. D appealed.
Issue: Does the defense of extreme emotional disturbance require a completely subjective
evaluation or reasonableness?
HELD: No, 2nd degree murder judgment affirmed, no mitigation to manslaughter. Court sets out
the 2 prong standard for EED (see above). Defendant did kill victim under extreme emotional
disturbance but the excuse offered was so peculiar to him that it was unreasonableno
mitigation. Defendant failed to establish the second element because the murder was the result
of malevolence rather than an understandable human response.
NOTE: The court has to apply the standard from Ds viewpointthey incorrectly applied
it: he was convicted. The court does not give D the EED defense, showing their own
uncomfortableness with the standard that they set out
State v. Elliot(418)
D feared brother and killed him for no reason. HELD: reversed murder convictionEED
should have been instructed. EED is not "hot blood" murder but one brought about from mental
trauma that caused D to brood for a long period of time.

29

Abstract Reasonable Man

Bedder

Particularized
Camplin
Self control v.
Gravity of provocation

Casassa
Model Penal Code
EED

The further right you go the easier it is for Defendant to get his sentence mitigated.
WE ARE LEFT WITH:
What arouses sympathy in the ordinary juror as the standard. This will all depend on
the lawyer and his ability to paint a bad picture of the other side.
DIFFERENCES BETWEEN CODE (EED) AND COMMON LAW (provocation):
Defense would argue Maher/Camplin or EED (discuss both common law and then MPC)
1. MPC No cooling-off period
2. The Code doesn't limit defense to only situations of provocation. No trigger event required.
3. Under the Model Penal Code, there is:
i. No Girouard/Maher problem: it goes to the jury automatically
ii. No Bedder/Camplin problem: subjective internal perspective and facts as Defendant
sees them.
REKINDLING
Bringing about past provocation might restart the cooling period. Many modern courts are
unwilling to allow rekindling. The legally sufficient provoking event happened in the past.
Would have to be more than simply words to allow rekindling.
RATIONALE FOR PROVOCATION
i. If mental state is going to be an element of the crime, there has to be some mental state
defense.
ii. Some people might not be generally bad people but might act violently on an infrequent
occasion if provoked.
iii. Deterrence: harder to deter provoked killings.
iv. Provocation as Partial Justification: A person is to some extent morally justified in killing
someone who intentionally causes him serious offense, and this differentiates someone who is
provoked to lose self-control and kill from the unprovoked killer.
POLICY: Reasonable man standard: Manslaughters definition of provocation (calculated to inflame the
passion of a reasonable man) suggests that it is reasonable to kill in certain circumstances. But
manslaughter is a serious charge; so to say that a reasonable person would kill under these circumstances
and then criminally charge him is strange.

30

INVOLUNTARY MANSLAUGHTER(UNINTENTIONAL KILLINGS)

(Common law majority requires criminal negligence and MPC requires recklessness)
Involuntary manslaughter is an unintentional, homicide commited without excuse, justification, or
malice. It may result from the commission of a lawful act in a negligent manner, or from the
commission of an unlawful act that is not a felony (the misdeameanor-manslaughter rule).
A person who kills another person in a criminally negligent manner. Like DHM but objective
standard of awareness of the risk.
DISTINGUISHING CRIMINAL AND CIVIL LIABILITY
Commonwealth v. WelanskyNegligence is sufficient or Recklessness is sufficient but D here
was both. The magnitude of the risk was great.
Issue: May a person be convicted of manslaughter merely for permitting hazardous conditions to
exist on his business premises?
Held: Yes, involuntary manslaughter conviction affirmed.
Involuntary manslaughter consists of death resulting through wanton or reckless conduct.
If there is a duty of care for the safety of business visitors invited to Ds premises, wanton
or reckless conduct may consist in intentional failure to take such care in disregard of the
probable harmful consequences to them.
D was more than just negligent or even grossly negligent. Fire in public place is always a
danger and Ds disregard of the safety of his patrons in the event of a fire was wanton and
reckless.
If danger was realized by Defendant, his omission (failure to change the setup of the
club) is wanton or reckless conduct.
If Defendant is so stupid that he didnt realize the danger, he cannot escape charge of
wanton or reckless conduct if an ordinary normal man would have realized it.
Essentially, wanton/reckless conduct is intentional conduct, which involves a high degree
of likelihood that substantial harm will result. Wanton conduct is indifference to or
disregard of probably consequences
o Defense would arguewhere is the actus reas? But there is omission liability.
o What is mens rea standard used? Criminal negligence (even though they talk
about reckless conduct, it says that even if D wasnt aware, reasonable person
would have realized the danger.) The court called his conduct recklessmore
like negligence+.

CRIMINAL NEGLIGENCE/NEGLIGENCE + /GROSS NEGLIGENCE STANDARD

3 ELEMENTS:
1. High risk
2. Serious Harm
3. No Justification
2 CONSIDERATIONS:
1) WHEN TRYING TO ESTABLISH GROSS DEVIATION
i. Magnitude of the risk:
1. How likely is it that the harm will happen?
2. How serious is the harm if it happens?
ii. How justified is Ds conduct? (Actors reasons for conduct)

31

e.g. like speeding when late for a movie or speeding when taking
someone to the ER)
2) MENS REA
How to get from criminal negligence to recklessness?
A) Gross deviation from standard of care of reasonable person, and/or
B) D was consciously aware of the risk
2 Mens rea possibilities for Involuntary Manslaughter:
1. Criminal Negligence/Gross negligence/Negligence Plus: Objective
standard: Common Law Majority---even if you dont realize the risk, you
are still liable
a. It's a gross deviation for a standard of care of a reasonable
person (reasonable person would have recognized the risk)
i. Substantial risk (high risk of serious harm)
ii. Unjustifiable risk
2. Recklessness: Subjective Standard: Common Law Minority and Model
Penal Code: 4 Elements
a. Its a gross deviation from a standard of care of a reasonable
person
i. Substantial risk (high risk of serious harm)
ii. Unjustifiable risk
b. Defendant was aware of the risk (objective awareness)
i. It's not enough that a reasonable person would have
known, the defendant had to have some level of
subjective knowledge.

Ordinary Negligence
Criminal Negligence/Gross Negligence (plus)
Recklessness
Recklessness Plus

Level of
Awareness
Objective
Objective
Subjective
Subjective

Nature of Risk
Unreasonable risk
Gross Deviation
Gross Deviation
Extreme indifference to the
value of human life

OBJECTIVE v. SUBJECTIVE STANDARD:

State v. WilliamsOrdinary Negligence is enough for Involuntary Manslaughter Conviction

MAYBE DONT USE THIS CASE AT ALL
Facts: The Williamses (Ds) husband and wife, were both Indians who did not graduate from high
school. Wife had 2 children from prior marriage, the younger of whom was 17 months old. This
child developed a toothache from an abscessed tooth. Within 2 week period, infection became
gangrenous. Because he could not eat, childs resistance was lowered and he contracted
pneumonia, from which he died. During this time, Ds knew the child was ill and they gave him
aspirin. They did not take him to hospital for fear that the authorities would keep him because of
his condition. Autopsy surgeon testified that even if child had seen doctor in last week, the childs
life could not have been saved. Ds were charged with manslaughter for failing to provide
necessary medical attention. Ds were convicted and appealed.
Issue: May simple negligence suffice to render a person criminally liable? (under WA statutes, the
crime is deemed committed even though the death of the victim is the proximate result of only
simple or ordinary negligence (a failure to exercise ordinary caution-reasonable standard).
HELD: Yes, manslaughter judgment affirmed.
Common law rule required more than ordinary or simple negligence for involuntary
manslaughter; gross negligence was essential. But this WA statute modified the law by
imposing criminal liability where death is the proximate result of only simple or ordinary
negligence.

32

Ds were required to exercise ordinary caution. They knew that the child was sick while there was
still time to take him to a doctor and save his life. They had taken him to doctor previously and
they breached their duty of caution and child died as proximate result of the breach.
They were sufficiently put on notice concerning the symptoms of the babys illness and lack of
improvement to have required them to get him treatment.
Evidence showed that Ds did not understand the significance ofr seriousness of the babys
symptoms, however there is no evidence that they were physically or financially unable to get a
doctor and that by applying the standard of ordinary caution (the standard exerciseably by a man
of reasonable prudence under the same or similar conditions) defendants were sufficiently put on
notice concerning the symptoms and lack of improvement from Sept 1 thorugh 5 to have required
them to have obtained medical care for the child, and their failure to get care is ordinary or simple
negligence, and such negligence supports a conviction of manslaughter.
If they had been aware of a life-threatening condition and ignored it, then their conduct would
have been reckless murder.
Omission liability because they had 1) legal duty 2) capacity to act. Court finds them liable on the
theory of ordinary negligence.
Education: (9th grade); Race (Indian)
Personalization: consider D's physical particulars but not cultural background, education
Even when prosecutor is just arguing for a simple reasonable person, the jury still has to
consider the circumstances known to the D and the nature and purpose of his conduct. So
negligence is not purely an objective standard, because some of the circumstances have to
be considered.
Prosecution would say that even if the standard is that of a reasonable native American,
the risk is so great that it outweighs the reasons why the parents didnt act.

PROBLEM W/COMMON LAW MAJORITY APPROACH

You can be convicted of involuntary manslaughter (homicide) under criminal negligence
without any awareness at all (often no awareness because of their circumstances)
Difficulty for punishing negligence: arises from punishing a person for departing from
an invariant and external standard that they might not have been able to meet.
Alternatives to reasonableness standard (which many think is unfair)
Professor Pillsbury: argues that the conduct is not reliable indicator of culpability but
rather the reasons behind the conduct. Ask why they didnt perceive the risk. Ex. 2
drivers driving like maniacs and injure pedestrian but the first one is rushing to hospital
and the other is just showing off for his friends. So the conduct is the same, but the
driver showing off for friends is morally blameworthy because he is showing disregard
for human life. Is this good alternative? Not really because it is valuing one human
life over another (fathers doctor going to hospital over the pedestrian killed).
MPC approach-When discussing negligence, should consider immutable
characteristics (like blind, deaf, sudden blow, heart attack) and not subjective
characteristics (like hereditary, intelligence, temperament). It is easier to take the
immutable ones into account than the subjective characteristics. For immutable
characteristics you cant prepare for, but subjective characteristics, like hereditary,
intelligence and temperament are things you know beforehand that you can prepare for
and possibly change, and criminal law can expect you to compensate for these
limitations. Would this view help the Williams parents? No, because the mutable
factors, like intelligence, are not as changeable as MPC may think, other barriers to
getting education, but MPC would say it would be fair to hold the Williams liable.
MPC is making a judgment that if you fail to recognize the risk due to immutable
characteristics, you are not liable but if you fail due to mutable characteristics, you can
be liable.
HLA Harts approach-we should ask two questions

33

1) Did accused failed to take those precautions which any reasonable man with
normal capacities would in the circumstances have taken?
2) Could the accused, given his mental and physical capacities, have taken those
precautions? If yes, then liable, if no, then no criminal liability.
A worry about this standard is that a trial would become a trial over Ds capacity to
care but not over what was actually done.
MODEL PENAL CODE ON MANSLAUGHTER REQUIRES RECKLESSNESS
People v. Hall: Supreme Court of Colorado, 2000 (MPC jurisdiction)-determines
recklessness standard to be substantial and unjustifiable rather than a high risk of death
Facts: While skiing on Vail mountain, Hall flew off of a knoll and collided with Allen Cobb, who
was traversing the slope below Hall. Cobb sustained traumatic brain injuries and died as a result
of the collision. The People charged Hall with felony reckless manslaughter. District court
determined that for Halls conduct to have been reckless, it must have been at least more likely
than not that death would result. Because court found that skiing too fast for the conditions is not
likely to cause anothers death, court concluded that his conduct did not constitute a substantial
and unjustifiable risk of death and affirmed the finding of no probable cause.
Held: Judgment reversed and remanded to jury, could be guilty of reckless manslaughter. The
charge of reckless manslaughter requires that a person recklessly cause the death of another,
meaning that for his conduct to be reckless, actor must have consciously disregarded a substantial
and unjustifiable risk that death could result from his actions. Trial court erred in saying that the
death must be more than likely, rather it must be substantial risk (less than 50% chance could
count). The enjoyment of skiing does not justify skiing at the speed and with the lack of control D
exhibited so a reasonable person could have found that Halls creation of a substantial risk was
unjustifiable. It was gross deviation from the standard of care that a reasonable law abiding
person would have observed. Hall was ski instructor so he was aware of the possibility that by
skiing so fast and out of control he might collide with and kill another skier. A reasonably
prudent and cautious person could have entertained the belief that Hall consciously
disregarded a substantial and unjustifiable risk that by skiing exceptionally fast and out of
control he might collide with and kill another person on the slope. There is sufficient
evidence for probable cause, so sent back to a jury.

MODEL PENAL CODENEGLIGENT HOMICIDE-Requires criminal negligence (as

opposed to recklessness for manslaughter in MPC). Negligent homicide in MPC=Common law
majority involuntary manslaughter for what you need to show for mens rea. Negligent
homicide is the lesser crime in MPC than manslaughter). MPC has murder, manslaughter, and
negligent homicide.
A killing done with criminal negligence (no actual awareness of the risk but with a gross
deviation from the standard of care of a reasonable person)
i. When people have knowledge that conviction and sentence may follow conduct, they
are supplied with an additional motive to take care before acting.
ii. Requires recklessness (awareness): but not under circumstances manifesting extreme
indifference to human life.
DIFFERENCES BETWEEN MPC AND COMMON LAW
i. Under the common law, a person can be convicted of manslaughter even if the act was
committed inadvertentlycan be convicted even if unaware of the risk
ii. Under the Model Penal Code, no conviction: the actor must be aware.
Negligent Homicide
Involuntary
Manslaughter
Voluntary Manslaughter
Depraved Heart Murder

Common Law (Majority)

XXX

Common Law (Minority)

XXX

Requires Criminal/ Gross

Negligence (A)
Have to prove provocation
using set list (Girouard)
gross recklessness

Requires Recklessness
(A+B)
Have to prove provocation
without set list (Maher)

MPC
Requires Criminal
Negligence
Requires Recklessness
(just called manslaughter)
EED (just called
manslaughter)
Requires EITVHL and
(recklessness) conscious
disregard for risk

34

DEPRAVED HEART MURDER

Only way you can get 2nd degree murder conviction is by saying it was DHM, meaning crime was so
great to get 2nd degree murder. DHM is a killing that is worse than involuntary manslaughter (it is a
synonym for second degree murder)
DHM distinction from
A. COMMON LAW : Requires Recklessness (but almost negligence in Malone)
Where there is no intent to kill, a killing can still be a murder where an overall judgment of the
defendants acts creates a substantial risk of death under circumstances that justify calling the Defendant
callous, cruel, etc.
2 CONSIDERATIONS
(1) TO FIND DHM LOOK AT
i. Magnitude of the risk:
1. How likely and serious was it? Need high risk of death. In callous disregard
of value of human life?
ii. Defendant's reasons for engaging in the risky behavior
1. Justified or unjustified by the facts?
Circumstances under which an unintentional killing constitutes murder rather than
manslaughter:
Commonwealth v. MaloneWicked, Depraved Heart (439)
Facts: Malone (D) age 17 was convicted of second degree murder for killing his friend, age
13, during a game of Russian poker. D and victim were on friendly terms, both had
consented to play, and neither intended to harm the other. D appeals, contending that he is
only guilty of manslaughter. One kid offers to play and puts the gun to the others head and
pulls three times. He didnt expect the gun to go off.
Issue: Is malevolence toward the victim an essential element of malice?
HELD: No, affirmed the 2nd degree murder conviction even though he had no malevolence to
the deceased and did not intend to kill him. This is not involuntary manslaughter.
What distinguishes murder from manslaughter is malice on the part of the killer and
when individual commits an act of GROSS RECKLESSNESS for which he must
reasonably anticipate the death to another is likely result, he exhibits malice in him.
While D did not intentionally kill the victim, he did act in a maliciously reckless
manner.
Court said the death was likely to result because the gun had a 60% chance of
going off. But if we believe he put the bullet where he said he put the bullet then
there was no chance. So, he didn't have a depraved heart because he didn't think he
would shoot him. HE HAD NO SUBJECTIVE AWARENESS. Prosecuted under
negligencehe didnt have any awareness of the risk and was still convicted
(the court thought it was applying recklessness). The bottom line is whether
there was willingness to create a risk of death for a really bad reason. Hard to
tell if gross negligence was really enoughCourt writes as if he was reckless.
He was playing with the gun the day before. He should have known.

Note: Usually, a genuine belief that D is not aware of the risk precludes a 2 nd
degree DHM conviction, unlike Malone but you could use the case in either
direction. Ultimately the distinction might not matter because it matters more
that there is a great risk rather than if there is a subjective awareness of the risk.
While in theory, there should be subjective awareness of the risk, juries blur the
line and still convict when they say they were not aware of the risk.

35

Hypo: If you picked up one gun off table of 1000 guns and it had bullet in it
when you shot it, court would still find that it is murder, because although the
likelihood of the harm is small, what you are doing shows such a callous
disregard for the value of human life, you were aware of the risk that you are
guilty of murder.

United States v. FlemingReckless Murder

Facts: Fleming (D) had blood alcohol level of .315 and was driving in wrong direction on a
one-way road between 70-80 mph. Speed limit was 30 mph. D lost control of his vehicle and
collied with a car driven by victim and killed her and D was convicted of second degree
murder. D appeals, claiming that the evidence did not show malice aforethought, so he could
be convicted at most of manslaughter.
Issue: May a person be convicted of murder for a death caused by reckless driving while
intoxicated?
HELD: Yes, 2nd degree murder conviction affirmed.
This is not simply manslaughter because he drove with malicenot just as drunk
person but as drunk person with disregard for human life. Malice aforethought
makes homicide a murder instead of manslaughter. Such malice does not require an
intent to kill or injure, nor does it require ill will against the victim or other persons.
Malice can include reckless and wanton conduct that is gross deviation from a
reasonable standard of care, sufficient to support an inference that the accused was
aware of a serious riks of death or serious bodily harm.
Prosecution only had to prove that D intended to drive the way he did without regard
for the life and safety of others. The evidence presented supports the verdict.
D claims that ifhe could be convicted of murder without proof that he intended to
cause death or injury, then all drunk driving homicides would be murder. However,
the difference between malice for murder and gross negligence, which only supports
manslaughter, is a difference of degree. Ds conduct is different than most other
vehicular homicideswhile typical drunk drivers put others in danger simply by
attempting to drive, in this case D was drunk but also drove in reckless manner that
was especially dangerous because he was drunk.
But where if Defendant says because I was drunk, thats not a defense to
recklessness. They impute subjective awareness if you are drunk.
Watson-CA Supreme Court held finding of implied malice means that D actually had
subjective awareness of the risk. Destroys the distinction between DHM and involuntary
manslaughter because he drove home drunk but his driving wasnt crazy. He drove to bar and
knew he would have to drive home.

Cases where D engages in risky conduct and convicted of DHM (aka implied malice murders)
Sernatowski-shooting in room with lots of people in it
Joy-starting fire at the door of occupied dwelling
Wiley-shooting into moving car (caboose of passing train)
Brinkley-shooting 2 times near the victim while in small room trying to scare
Johnson-shaking an infant so long and forcefully that it cant breath
Regina v. Serene: Central Criminal Court 1887
*People v. Watson: D drove to bar, drank, and knew he would have to drive home, drove and
killed someone
*Pears v. State-P drove drunk after getting 2 warnings from cops and friend that he was too drunk
to drive and kills someone in accident
*cases where evidence of callous disregard included driving to bar when you know you would
have to drive home. (Drinking and driving is found to be callous disregard for human life)
DHM for omission liability? If you are in an omission liability context and you find that the D
failed to act when they should have acted, you have the actus reas component but you still need to

36

prove the mens rea component. If prosecutor can prove very risky omission that is likely to cause
death, you actually can get depraved heart murder for omission (like if parent neglects to feed
baby for 2 weeks.
B. BODILY HARM: the malice required for murder is found in the intent to do serious bodily harm.
Hypo: Imagine that D beat up a victim badly and was much bigger than victim then leave and the
victim walks and falls down stairs and dies and this is cause of death. Can D be convicted of
depraved heart murder? Yes because the severe beating is high risk of death.
Hypo: What if not a severe beating? It depends if Ds conduct showed intent to create great
bodily harm. For many jurisdictions this is a jury question, in other jurisdictions, this is a
question of law. In some it is any injury that seriously interferes with health on comfort.
C. PARTICULARIZATION: Typically not an issue because the requirement that Defendant be actually
aware of the risk allows for sufficient "particularization" of D's perspective.
(1) If the defendant wasn't actually aware of the risk, the prosecutor cannot prove recklessness.
i. See Involuntary Manslaughter: Welansky
D. MODEL PENAL CODEgoes even farther: Recklessness Plus (Same as Common Law Minority)
(1) An unintended killing is murder when it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life.
(2) Two considerations:
i. Was it a gross deviation?
ii. Did it manifest extreme indifference to the value of human life?
E. DIFFERENCE BETWEEN MENS REA STANDARDS FOR DEPRAVED HEART MURDER
i. Common Law Majority: Recklessness=gross deviation from standard of care +
conscious awareness (disregard for substantial/unjustifiable risk) or disregard for
human life.
ii. Common Law Minority: Recklessness Plus
iii. MPC: Recklessness Plus=gross deviation from standard of care + conscious
awareness +much greater risk/callous disregard for the value of human life.
1. MPC says if awareness of the risk is required, and your defense is that you
werent aware because you were intoxicated, you are still liable. Voluntary
intoxication is not a defense.
Recklessness: a conscious disregard of an unreasonable risk that involves a gross deviation
Recklessness plus: a conscious disregard of an unreasonable risk that indicates an extreme
indifference to the value of human life.

Recklessness (common law majority)

Recklessness Plus (MPC and common law minority)

Level of
Awareness
Subjective
Subjective

Nature of Risk
Gross Deviation
Extreme indifference to the value of
human life

37

FELONY MURDER
At common law, any homicide committed while perpetrating or attempting to perpetrate a felony was
murder. Most jurisdictions have limited this rule.
Prosecutors usually want felony murder conviction because it is easier to getall the prosecutor has to
prove is the actus reas (causing the death of another).
The homicide must occur in the perpetration of the felony. Most courts interpret this to mean that it is
sufficient if the homicide takes place at any time wihin the regestae of the other felony, and this includes
all acts in the immediate preparation, actual commission, and immediate escape. A few courts require that
homicide occur at the actual moment of technical perfection of the felony (as in burglary, must occur
during the breaking and entering)
1st Degree Felony Murder: Dead Body + Causation+ Listed Felony (if listed then inherently dangerous).
2nd Degree Felony Murder: Dead Body + Causation + any other inherently dangerous felony
Defining Inherently Dangerous
Doctrine
Serne-Act known to be dangerous to life and likely to cause death (narrower; common sense)
Stamp-Take Vs as they come! Direct causal result of felonious act (broader; foreseeability not required)
Limits
King-Felonious act must be proximate cause of death.
Phillips-Felony must be inherently dangerous in the abstract.
Stewart-Felony must be inherently dangerous in the concrete (subjective-facts)
Canola Agency theory-Self or acting in concert w/ and in furtherance of the felony.
Proximate cause theory-Reasonable or foreseeable result (broader)
King v. Commonwealth (451)Death must be consequence of the felony, Risk has to arise
from the felony itself BUT FOR THE D
Facts: D and co-pilot transporting 500 lbs. of marijuana, got lost in fog & crashed, co-pilot died.
HELD: FM conviction reversed b/c the drug distribution crime was not the PROXIMATE
CAUSE of the death; the crash was not made more likely by the fact that the planes cargo was
contraband (it would be felony murder if crash resulted from flying plane at a low altitude to avoid
detection).
Regina v. SerneIntroduces the doctrine. Malice: transferred from intent to commit a
felony. Limits felony murder.
Facts: Serne (D) insured his property and the life of one of his boys. While the family was
sleeping, D set fire to the house. Everyone but Ds two boys escaped. D was charged with felony
murder.
Issue: Does the felony-murder doctrine apply regardless of the dangerous nature of the felony
involved?
Held: No. D is not guilty. Malice aforethought includes knowledge that the act will probably
cause the death of a person as well as acts done with an intent to commit a felony. The common
law rule is too broad unless it is limited to dangerous felonies. Felony-murder rule should only
apply when the act is known to be dangerous to life and likely in itself to cause death, and is done
for the purpose of committing a felony and does cause death. The Defendants intent to engage in
a felony is transferred to the death. Judge Stephen in Serne is not a fan of unrestricted felony
murder and says that it is not enough to show that the felony caused the death, but rather that
murder is any act known to be dangerous to life and likely in itself to cause death, done for
purpose of committing felony which causes death, should be murder. What effect does the Serne
decision have on felony murder doctrine? Although the actus rea requirement may still be met, it
adds a mens rea like notion (but formally speaking its not mens rea).

38

If you rob a house when you think the girl isnt home and she has heart attack, it is not
felony murder.
But in Serne, Ds are acquitted even though arson is inherently dangerous, so although it
seemed like there should have been conviction, the jury made a judgment and maybe
facts were not sufficient.

Special rule of causation: Prosecution must show that Ds conduct was a substantial factor in
bringing about the death. Prosecution must prove that but for Ds behavior, victim would not
have been killed (Stamp) BUT then you also have to show that death was foreseeable or probable
consequence of the felony (proximate cause)
People v. StampYou take your victim as you find themStrict Liability standard
Facts: Victim died from a heart attack partially brought on by fright when he was robbed at
gunpoint by the D.
HELD: Ds conviction of first degree murder was affirmed on grounds that a felon is strictly liable
for all killings committed by him in the course of the felony and takes his victim as he finds him
(Ds victim had been in bad health). The felony-murder rule is not limited to those deaths which
are foreseeable. Rather a felon is held strictly liable for all killings committed by him or his
accomplices in the course of the felony. So long as a victims predisposed physical condition is
not the only substantial factor bringing about his death, that condition and the robbers ignorance
of it, in no way destroys the robbers criminal responsibility for the death. The robber takes the
victim as he finds him.
No mens rea requiredno intent to kill: strict liability. (Compare with the trial court in
Cunningham).

Stamp court anticipated the objection to the felony murder rule. There are two types of causation
that you have to prove
1. But for-low standard, but for the Ds act, the harm would not have resulted.
2. Proximate cause-in order for act to be proximate cause, it has to be natural
and probable consequence and reasonably foreseeable
If predisposing physical condition was the only cause of the death, it cannot be felony murder.
Hypo: so if D had entered house and she was upstairs and had a heart attack while sleeping in bed
and never saw him, there is no proximate cause.
A. ENUMERATED FELONIES: When common law murder was divided into degrees, particularly
dangerous feloniesarson, rape, robbery, and burglarywere the only felonies on which a firstdegree felony-murder conviction could be obtained.
(1) If the felony is not enumerated, then you cant get 1 st degree murder.
(2) In CA, legislature has said that any of listed felonies resulting in death is first degree murder,
so says that these are inherently dangerous felonies, so the question really only arises when
we talk about 2nd degree murder.
NOTE: The broadest reading of felony-murder covers all felonies. You do a blameworthy thing
and youre liable for everything else. They bootstrap the culpability for the felony to the killing.
B. RATIONALE: not intended to deter the felony, but only to deter dangerous conduct during its
commission
(1) If the purpose were to deter the felony, it would make more sense to enhance the punishment
of that offense.
C. CRITICISM:
(1) Culpability: when applied to accidental homicides, the rule results in disproportional
punishment. The intent to commit the felony is transferred to the homicide, which is unfair.
(2) It precludes having to show mens rea for the homicide.

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D. LIMITATIONS: because of its unpopularity, the courts have tried to limit it.

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INHERENTLY DANGEROUS FELONY LIMITATION

The felony can only be used as the basis of a conviction if the defendant was engaged in a felony that
created serious risk of death. How to define dangerous: 2 approaches
NOTE: Limitation imposed only when felony is not enumerated (e.g. in states that have 2nd degree
FM). Doesn't apply to enumerated felonies b/c Leg. stipulated they were dangerous. (See Wilson)
(1) Abstract-Minority View (Limits Felony Murder to the listed felonies): Court looks at
nature of felony in abstract. If it can find one instance where it would not be inherently
dangerousness, Defendant must be let off. (California approach).
People v. PhillipsSupreme Court of CA-Grand theft medical fraud-More lenient
approachfor FM, felony in the abstract must be inherently dangerous
Facts: Phillips (D) was convicted of second degree murder by application of the felony-murder
rule based on his commission of grand theft. D, a chiropractor, induced the victims parents not to
allow an operation, representing falsely that he could treat her from eye cancer. D charged them a
substantial sum, but child died and D appealed his conviction.
Issue: Must the felony D is charged with be an inherently dangerous one in order to apply the
felony-murder rule?
HELD: Yes, judgment reversed, FM instruction should not have been given. This is not 2nd degree
murder.
The is no proof that D acted with conscious disregard for life in this case and there is no
expressed or implied malice.
The felony, grand theft, was not inherently dangerous to life in the abstract, and only such
dangerous felonies will support FM conviction. It makes no difference that the acts of D
may be inherently dangerous, the court must look in the abstract to the felony with which
D is charged. Otherwise there would be no limitation on the doctrine, which has been
severely criticized.
Court wants to look at felony in the abstract and leave it up to legislature on what is
felony-murder
CA approach says we dont look at the facts of the case at all, we look at the statute in the
abstract, and if there are ways that you can commit the felony as not inherently
dangerous, then it is not felony murder.
Note: on retrial, prosecutor got DHM conviction instead. Best prosecutors will argue both.
People v. SatchellAbstract
Defendant is convicted of the felony of possessing a shotgun when an ex-felon. He shot and killed
victim. Held: no felony murder because possession of shotgun is not inherently dangerous to
human life in the abstract.

(a) Difficulties with abstract approach: How to qualify the approach and how to find if
inherently dangerous felony
1. When the legislature puts multiple offenses in one statute
People v. PattersonNo looking at whole statutetoo broad1) look at specific
element in the abstract and not the whole statute to 2) find out if it is inherently
dangerous, meaning high probability of death will result (LIMITS FM!!)
Facts: D gives cocaine to woman who dies. He violates code which makes it illegal
to transport, furnish, etc. (many different drugs) and is charged with violating the
code and felony-murder.
Held: Not 2nd degree felony-murder, remanded to trial. Court says that is too broad.
Legislature grouped them together for convenience. Only look at furnishing cocaine.
Because specific administering of cocaine in the abstract does not result in high
probability of death (court rejecting substantial likelihood of death standard), it is
not inherently dangerous felony. Each substance should be examined separately to

41

find if it is inherently dangerous. Jury instruction is that an act is inherently

dangerous to human life when the result is the high probability of death.
Dissent: if majoritys test is based on probabilities, no felony carries high probability
of death as a side result. It should instead be substantial risk of death.
Note: Most courts say that an act is inherently dangerous when there is
substantial risk of death.
People v. HendersonCant separate statute (basically gets rid of FM)
False imprisonment at gun point: kidnapped victim tried to get away and D shot and
killed a bystander. Court: false imprisonment isnt inherently dangerous to life
because you can violate the statute by just fraud or deceit.
Prosecution: can separate statute into two: imprisonment by: violence or menace
and fraud or deceit. Court didnt buy this and said you have to read all four
together--if the legislature wanted to treat them separately, they would have.
NOTE: Inconsistent results in Henderson and Patterson: one separates the statute, the
other doesnt. In Patterson if you read it as a whole and exclude your case from felonymurder, everything in the statute would have to be excluded from felony-murder.

When looking at a statute in abstract

First ask if there is primary element. If yes then go by Henderson and not
inherently dangerous. If no primary element, then find what the legislatures
reason for grouping offenses together. If it is too inconvenient/too much of a
burden to create separate statutes, then you should look at the offenses
individually (Patterson case). But you should keep them together (Henderson
case), if anyone who commits any of the crimes is equally culpable and it is not
inherently dangerous. If you follow Henderson approach (grouping the crimes
together) you are basically getting rid of felony murder.
(2) As Perpetrated-Manners & Circumstances Approach (expands Felony MurderMajority View): determine dangerousness by looking at the facts of the case. (Rhode Island
approach)
People v. StewartDont look at felony in abstract (Philliips) to determine whether
inherently dangerous but rather to the manner and circumstances in which it was
committed and give it to a jury to decide.
Facts: Stewart (D) did not care for or feed her under 2 month old baby for 2-3 days while
she was on crack binge. Baby died and D was charged with second degree felonymurder. State contended that killing was not intentional, but resulted from commission of
inherently dangerous felony of wrongfully permitting a child to be a habitual sufferer. D
was found guilty on both counts.
Issue: Is predicate felony, wrongfully permitting a child to be habitual sufferer, an
inherently dangerous felony?
HELD: Yes, judgment affirmed. Guilty of both 2nd degree murder and wrongfully
permitting child to be a habitual sufferer.
Declines to adopt CA approach and says better approach is for trier of fact to
consider facts and circumstances of particular case to determine if predicate
felony was inherently dangerous in the manner and circumstances in which it
was committed.
Many felonies do not appear to be inherently dangerous to human life but can
become so.

This cuts out the least violent offenses because they are too remote:
Most violent
least violent

42

Hines v. State (not CA approachHines applies Stewart)looks at circumstances and

says felony is inherently dangerous if foreseeable risk of deaththis expands FM!!
Facts: While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and
shot him dead. Hines (D) contends that a convicted felons possession of firearm while
turkey hunting cannot be one of the inherently dangerous felonies required to support
conviction of felony murder. Jury convicted Hines of felony murder based on the
underlying crime of possession of a firearm by a convicted felon and Hines appealed.
Held: Felony murder conviction affirmed. Forseeable risk of death approach-Hines use
of firearm as convict is inherently dangerous felony that could support felony murder
conviction. A felony is inherently dangerous when it is dangerous per se or by its
circumstances creates a foreseeable risk of death. Depending on facts, possession of a
firearm by convicted felon can be inherently dangerous felony. Hines intentionally fired
shotgun intending to his target and had been drinking before he went hunting and was
unaware of the hunters exact location but knew they were in the area hunting too. He
also knew that other hunters visited the area and took an unsafe shot at dusk, through
heavy foliage, at a target that he had not positively identified as a turkey. So, Hines
violation of the prohibition of a firearm created a foreseeable risk of death. It was
inherently dangerous felony that could support a felony murder conviction.
Dissent: Says they should use Patterson approach that felony is inherently dangerous
when there is high probability of death and D should not get felony murder-it was a
tragic accident.

Different standards for what constitutes an inherently dangerous felony (high to low)
High probability of death-Hines dissent, Patterson majority (limits FM) (defense would argue this
standard)
Substantial risk of death-Patterson dissent
Death reasonably foreseeable-Hines majority under manner and circumstances (prosecution
would argue this standard) (this standard broadens the scope to allow for more felony murder, so
a negligent person could be convicted of felony murder)
*High probability of death and substantial risk of death are now treated the same.

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KILLINGS NOT "IN FURTHERANCE" OF THE FELONY LIMITATION/Accomplice liability

COMPLICATIONS WITH FELONY MURDER

Killer is an innocent person (crime victim, bystander, or officer)

Deceased is a co-felon

There is a deterrence argument for counting the lives of cofelons.

Ask
1) In this jurisdiction, is this view is agency or proximate cause
2) In this jurisdiction, does the death of a cofelon count? In NY and NJ, cant get FM if one of
cofelons dies but CA and most other states count the death of the cofelon
*CA is agency jurisdiction and death of a cofelon counts for felony murder.
*Defense would argue that cofelon death shouldnt count, and prosecution argues that the
cofelons life/death should count so he can get felony-murder convictions. IRONIC!
Accomplice Liability-One person is liable for the crime of another when he or she intentionally
encourages the other person to commit the crime or aids the other person in committing it. In these
circumstances the law treats each participant as the agent of the other when their actions further the
common objective.
TWO APPROACHES
(1) Agency Theory: traditional common law view, prevailing view
a. The felony-murder doctrine applies only to killings directly by a felon and in furtherance
of the felony--a joint felonious plan. The killer has to be an agent of the defendant.
i. This is the prevailing view.
State v. Canola Justifiable Homicide: Uses agency theory, No FM for killing of
co-felon-limits FM
Facts: D, along with three cofelons, was in the process of robbing a store when
victim of the robbery, store owner, attempting to resist the perpetuation of the crime,
fatally shot one of the cofelons (Lloredo) and owner was killed by another cofelon.
HELD: the killing has to be done by D or by one acting in furtherance of the felony
and as a result, Canolas felony-murder charges were reversed as to the killing of the
co-felon. Reasoning: most modern progressive thought favors restriction rather than
expansion of the FM rule. It would be regressive to extend the application of the rule
to lethal acts of third persons not in furtherance of the felony. (Different if he used
him as a shield)
*Under proximate cause theory, it would be felony murder.
United States v. HeinleinAgency theory-says unanticipated actions of a felon
not in furtherance of a common purpose cannot be attributed to other cofelons.
3 Defendants participated in a rape, woman slapped Defendant and he killed her.
HELD: Under Agency Theory, court held that the other two felons were not guilty of
felony murder because Heinleins unanticipated actions were not in furtherance of
the common plan.
State v. Amaro-Police officers entered house to arrest marijuana dealers making a
sale. After Amaro and his cohorts were captured, an officer searching the house was
shot and killed by cofelon who was still attempting to evade arrest. Court upheld
Amaros conviction, finding that cofelons act was foreseeable and in furtherance of
the common deisgn.

44

In agency jurisdiction, it is not enough that cofelon shoots the other cofelon, you have to
show that it was in furtherance of the felony, so killing a dumb cofelon that is hindering
the felon would be in furtherance of the felony.
(2) Proximate Cause Theory (NY & NJ view?)increases scope of FM, just has to be
reasonably foreseeable result. Just matters if it was within the foreseeable risk of the
commission of the felony. (PROSECUTORS WANT THIS VIEW)
a. A felon can be convicted of felony murder from a killing, no matter by whose hands that
is proximately caused by the commission of the felony. It is FM if the killing was a
reasonably foreseeable result of the felony.
i. Recently, an increasing number of states have adopted this theory
ii. Problems:
1. How far do you extend foreseeability?
2. Using an objective standard in assessing criminal guilt seems
undesirable.
3. Why do courts draw a distinction between the killing of felons and
victims?
a. Assumption of risk: risky business
b. What does this say about the lives of felons?
i. They arent worth anything.
iii. Difference: proximate cause: anyone could have done killing
Ex. Hernandez on pg 463
Hernandez on pg 463: cop kills cop during the commission of armed robbery. Can the
defendant be held liable?
Agency theory: no because must be done by felon But this is Proximate cause
jurisdiction: yes, because it was reasonably foreseeably risk of felon's act
As prosecutor, argue FM because easier to get since no mens rea, if not, then make argument for DHM (implied
malice), if that doesnt work, then involuntary manslaughter.

(3) Vicarious liability DHM: (applies in Agency Theory jurisdictions only) not a charge of
murder, its a theory of how to apply murder. Choose your cofelons wisely.
a. When the defendant or his accomplice, with a conscious disregard for life, intentionally
commits an act that is likely to cause death, and his victim or an officer kills in
reasonable response to such act, the defendant is guilty of murder (regardless of who
dies) (Gilbert) pg 464
b. In such a case, the killing is attributable, not merely to the commission of a felony, but to
the intentional act of the defendant or his accomplice committed with conscious disregard
for life.
c. Central question: whether the conduct of the defendant or his accomplice was sufficiently
provocative of lethal resistance to support a finding of implied malice.
Taylor v. Superior CourtProvocative Act Doctrine-have to have DPH conviction for Daniels
and then vicariously convict Taylor (different than accomplice liability where you dont have
to convict on felon first) (Accomplice liability requires Taylor to know about Daniels crazy
behavior)/ If any felons behavior was sufficiently provocative of lethal

resistance that it was reasonable to expect some violent result.

Daniels and Smith robbed a liquor store, Taylor was driver. Daniels chattered insanely. Smith was
killed by victim. HELD: no felony murder for any of them. Taylor cannot be convicted of felony
murder because he didnt have malice because the killing wasnt committed by a felon (agency).
Daniels was convicted under theory of depraved heart murder and Taylor was convicted under
theory of vicarious liability for depraved heart murder. But under vicarious liability, the killing is
attributable to the Defendant: they committed acts with conscious disregard of life (depraved heart
and accomplice liability). In agency jurisdiction, to show that Taylor is convicted of DPH, have to
show that they are engaged in joint felonious plan and that Daniels engaged in risky

45

conduct/extreme indifference to value of human. Daniels threats of execution and Smiths

nervousness were provocation sufficient to infer malice and exhibited depraved heart conduct.
This is the Provocative Act Doctrine: The conduct must be sufficiently provocative of lethal
resistance to support a finding of implied malice.

The NY accomplice affirmative defense-(pg 379) gives accomplices a defense (like when
driving the getaway car) and says that accomplice is not guilty of murder in second
degree when a) did not commit homicidal act or in any way solicit, request, command,
cause or aid in commission thereof AND b)was not armed with deadly weapon AND c)
had no reasonable ground to believe that any other participant was armed with such a
weapon AND d) he had no reasonable ground to believe that any other participant
intended to engage in conduct likely to result in death or serious injury

MODEL PENAL CODE210.2 (Abolishes Felony Murder)-creates rebuttable presumption of

recklessness in a felony that involves death and D can show that he was not indifferent to
human life.
(1) Criminal homicide constitutes murder when:
(a) It is committed purposely or knowingly; or
(b) It is committed recklessly under circumstances manifesting extreme indifference to
the value of human life. (Depraved Heart Standard)
1. **Such recklessness and indifference are presumed if the actor is engaged or
is an accomplice in the commission of
a. Listed felonies: robbery, rape or deviate sexual intercourse by force
or threat of force, arson, burglary, kidnapping or felonious escape.
2. This presumption is rebuttable.
3. So, reckless indifference to human life may be presumed if the person causes
the death during commission of an enumerated felony.
Under MPC, if you are in course of committing a listed felony and death occurs during listed
felony, recklessness and indifference to the value of human life are presumed (BUT NOT
ESTABLISHEDso prosecutor might not necessarily win since the presumption is rebuttable
and defense can argue the facts to rebut it). MPC drafters intended to cut back the felony murder
rule but this MPC rule has not been very successful.
Policy Arguments For Felony Murder
-Felony is wrongful act and no benefit to society, result is bad, need to incapacitate D, blameworthy, it
could deter the underlying felony by others and creates a cautious felon (makes someone who is
committing felony to be really careful).
-Strongest argument is deterrence. Some say felony murder might deter on 2 theories 1) it will deter
people from committing felonies in the first place in fear of sentencing 2)it encourages cautious felons.
- If you think the purpose of felony murder is do create cautious felons, then you would argue for the
circumstances approach and death reasonably foreseeable.
Policy Arguments Against Felony Murder
-Ds are not blameworthy so doesnt work well for retribution (should convict of something lesser like
involuntary manslaughter but not murder).
- It is arbitrary who gets a murder conviction and has nothing to do with the culpability of the D. People
could do the same things but depending on victim get different sentences
-Argument against deterrence-BUT very few felonies end in death and those who commit felonies are not
really motivated by fear of death occurring and resulting sentencing.
-Under abstract approach, cautious felon is not deterred because there are so many ways in which you
could commit the felony that would not be inherently dangerous.

DOLOVICH SAYS: If you want to be fair, the manner and circumstances approach makes more
sense.
46

MISDEMEANOR-MANSLAUGHTER RULE (UNLAWFUL-ACT DOCTRINE)

RULE:
A person is guilty of involuntary manslaughter if he kills a person during the commission or
attempted commission of an unlawful act that does not otherwise trigger the felony-murder rule. If
there is no underlying felony, but there is underlying misdemeanor that results in death, D can be
guilty of involuntary manslaughter under the unlawful-act doctrine, when there is safety ordinance
violated, regardless of whether he had been reckless or negligent.
State v. PowellCriminal negligence not needed
Jogger was killed by dogs that escaped from Defendants yard. Ordinance required dogs to be
restrained by fence or leash and so Defendant was guilty of involuntary manslaughter regardless
of whether he had been reckless or negligent.
Note: why is this doctrine needed? It makes it a lot easier to convict: no need to show
recklessness. It is a harsh rule, but courts have been trying to cut it back and now it can include
felonies that dont qualify under felony murder, so misdemeanor manslaughter can also be called
Felony-Act rule.

LIMITATION:
There must be some causal connection between the misdemeanor and the killing; otherwise no
manslaughter. (NOTE: Under a rigid application of the rule, causality does not matterso the
limitation depends on how the court applies the rule).
Commonwealth v. WilliamsCausal Connection Required
Defendant failed to renew his drivers license, a misdemeanor, and got in an accident (not his
fault) killing another person. HELD: the expiration of the license had no causal connection to the
accident, which had resulted from the carelessness of another driver.

MODEL PENAL CODE:

Rejects entirely the misdemeanor-manslaughter analog.

47

IV. MISTAKE
MISTAKE OF FACT
A defendant is not guilty of a crime if his mistake of fact negates the mens rea of the offense. Its
a failure-of-proof defense. Person engages in conduct that is forbidden by law under some
belief, but had they been right, their act would not have been wrong. Prosecutor can prove every
material element but there is one element where D doesnt have the requisite mens rea and
prosecutor tries to get a conviction anyways, so argues for strict liability.
SPECIFIC-INTENT OFFENSES (mens rea to element has to be there)
Defendant is not guilty of a specific-intent crime if her mistake of fact negates the specific-intent element
of the offense. This is so regardless of whether her mistake was reasonable or unreasonable.
Ex. Burglary-entering a building with intent to commit a felony therein-226
Possession of stolen good (specifi intent-need to know its stolen)
Larceny-taking something from another
GENERAL-INTENT OFFENSES (mistake has to be reasonable-common law majority)
Defendant is not guilty of a general-intent offense if, as a result of her mistake of fact, she committed the
actus reus of the offense with a morally blameless state of mind. Think of mens rea in the broad sense
here.
o A reasonable mistake of fact is usually a defense. (Cant be unreasonable.)
Anomaly: specific-intent crimes allow unreasonable mistakes
BRAMWELL MORAL WRONG DOCTRINE: Sometimes, courts will convict a Defendant of an
offense even though her mistake was reasonable
o Look at the facts from the mistaken actors perspective
o And judge whether society would consider his conduct (as he understood them to be) morally
wrong
BRETT LESSER CRIME THEORY: guilty of the greater crime if actors conduct as she believed
them to be violated a lesser crime.
Regina v. PrinceMoral Wrong & Lesser Crime Theories: Apply if no Mens Rea level is specified
Facts: (Bramwell): Prince was charged with misdemeanor of taking an unmarried girl under the age of 16
out of her fathers possession and against the will of the father. The girl told him that she was 18 when she
was really 14. The jury found he acted reasonably.
HELD: conviction affirmed. Bramwell asserts the Moral Wrong Theory: The act forbidden is wrong in
itself, if without lawful cause. The legislature has enacted that if anyone does this, he does it at the risk of
her turning out to be under 16. (No mistake of fact). Even though his mistake was reasonable, he is still
guilty because his act was immoral (according to community standards it was immoral to take a girl from
her father regardless of age. He applied strict liability to her age. ) So, not only do we bootstrap the
mens rea on a felony (Cunningham) but well also bootstrap the mens rea on an immoral act. They
apply mens rea in its general sense. This is a Strict Liability Standard. Today, it applies only to sex with
minor cases.
Rule: Whosoever shall unlawfully take or cause to be taken an unmarried girl, being under the age
of 16, out of the possession and against the will of her father or mother, or of any person having
the lawful care or charge of her, shall be guilty of a misdemeanor
Note: Since it was reasonable for D to believe her and his belief was honest, prosecutor can only
prove strict liability and prosecutor would argue that since the statute doesnt say anything about
the Ds belief so the law should apply to whoever. Defense would argue for standard of
recklessness or higher.

48

Dissent: (Brett) all cases prove that there can be no conviction for crime in the absence of mens rea.
Lesser Crime Theory: Whenever the facts which are present in the prisoners mind would, if true, make
his acts no criminal offence at all, a mistake of fact would make him guilty of no criminal offense. But if
they were to make him guilty of a less crime, then he would still be guilty of the greater crime b/c he still
intended on committing a crime. Isnt used anymoreonly when the distinction is between a grade of the
same crime (petite and grand larceny) will the mens rea for the lesser offense be bootstrapped to the greater
offense.
Critique of Bramwells Moral Wrong Approach: legality doesnt mean morality. He is
imposing his view of morality on everyone. Also, he ignores the legislatures designations of what
is immoral. Under Bramwell approach, courts are legislating morality instead of the legislature
and judge is saying whats going on in the legislatures mind and cant actually know. If legislature
really wanted to deter certain conduct, they would do it (but they did not choose to criminalize
letting other kid drown, or lying to general person)

*In area of sex crimes, and statutory rape for example, it is still strict liability crime (no
honest/reasonable mistake is a defense).
*In CA, there is a reasonable mistake defense as to age, but an honest mistake isnt enough if its
unreasonable. In Olson, CA does not give the defense even though it is reasonable .
White v. StateMoral Wrong to Leave Wife
Left his wife and didnt know she was pregnant. Rule: a husband who leaves with the intent to abandon his
pregnant wife shall be imprisoned. HELD: conviction affirmed. Leaving your wife is an immoral act
regardless of whether she is pregnant; the pregnancy is just extra.
People v. Olsen-affirms conviction of lewed/lascivious conduct with girl under 14 when D reasonably
believed she was 16still no Mistake of Fact defense allowed.
Defendant had sex with a 13 year old who told him that she was 16. He was convicted of violating
288(a): willful and lewd act with a child under 14. The trial court ruled that a good faith belief as to the
age of the victim was not a defense to this law. HELD: affirmed the conviction on the grounds that public
policy recognizes a need to protect children. (Bramwell approach). The legislature's enactment of a
subdivision that renders offenders who honestly and reasonably believed that the child was 14 or older
eligible for probation shows that the legislature did not intend for the mistake of fact defense to be a
defense to these charges. The legislature also determined that people who commit sex offenses on kids
under age of 14 should be punished more severely than those who commit such offenses on kids under 18,
showing the strong public policy to protect children under 14.
Dissent: This is cruel and unusual punishmentwe should stick to reasonable belief standard but perhaps
create a higher standard for what is reasonable. He is not blameworthy, perhaps there is a duty of
reasonable inquiry (to ensure shes older than 14).
B (A Minor) v. Director of Public Prosecutions-House of Lords-asserts honest belief approach, taking into
account what D honestly believed (reverses Prince?)
Facts: B, a 15 year old boy, repeatedly asked a 13 year old girl to perform oral sex. Girl refused and B was
subsequently charged with inciting a child under age of 14 to commit an act of gross indecency, contrary to
Section 1 (1) of the Indecency with Children Act 1960.
Decision: On appeal, the main question was whether Prince governed this case, and if so, whether Englihs
courts should continue to adhere to it. Lord Nichols decidedthe statute says nothing about the mental
element. In recent years, the courts have rejected the reasonable belief approach and preferred the honest
belief approach. The honest approach is preferable because the mental element is essential ingredient of a
criminal offence. If he genuinely believes she is over 14, he does not have intent to commit an act with a
girl under 14. Some of Prince reasoning is unsound and Lord Steyn says Prince is out of line with the
modern trend in criminal law which is that a D should be judged on the facts as he believes them to be.
Note: Under this case, unless legislature says otherwise, there is a necessary mens rea requirement to be
guilty of violating this statute and that goes to the belief of age
-Court rejected common laws on mistake of fact for general intent crime here
-Honestly believe approach must be preferable because there must be a basic mens rea element of the
crime.

49

Garnett v. State (Maryland)-holds that statutory rape, even if believe girl to be older, is strictly liable.
Affirmed conviction (not about lesser or moral wrong but rather strict liability).
Facts: Raymond Garnett is young retarded man. At time of incident he was 20 and became friends with a
girl Erica Frazier, then 13 and he went to her house at night and they engaged in sexual intercourse. She
later gave birth to his baby and he was charged with second degree rape under Md. Code 463. There was
evidence that she and her friends had told him that she was 16 and that he had acted with that belief.
HELD: Conviction affirmed. Statutory rapes laws are often justified that it doesnt matter if D doesnt have
mens rea because he still had sex outside of marriage and that is wrong, BUT Maryland does not have law
against fornication and we should not rest this decision just on community ethic. But it is clear that
Marylands second degree rape statute makes no allowance for a mistake-of-age defense and statutory
rape is strict liability standard. This decision rejects Bramwell (moral wrong) and Brett (lesser
crime) and says that statute is strict liability based on the statute and legislative history.
Dissent: To hold that a D does not need the mens reas is unjust. Removes any idea of mens rea and
presumption of innocence and due process by failing to allow D the mistake in fact defense.

MODEL PENAL CODE2.04 - If there was mistake, and an honest mistake, prosecutor cant prove
recklessness and therefore there should not be a conviction. Mistake of fact is a defense when the mistake
negates the purpose, knowledge, belief, recklessness or negligence required to establish the offense.
(1) Mistake of fact or law is a defense if
(a)
Mistake negatives the mens rea required, or
(b)
The law provides that the state of mind established by the mistake constitutes a defense
(2)
Defense is not available if the defendant would be guilty of another offense had the situation
been as he supposed. Instead, it will reduce the grade and degree of the offense to those of
the offense of which he would be guilty had the situation been as he supposed. (Variation of
the lesser crime theory)
Note: MPC generally allows a defense for honest mistake, whether reasonable or not, but says strict
liability when criminal act is sex offense turning on childs age below age of 10. If things that
supposed would have been a crime, then you should be guilty for that crime (this is the vestige of
Brett-Brett stil applies when it is a question of degree). If it is just about grading (like burglary of
inhabited or uninhabited dwelling), then you are still convicted of the higher crime.

50

STRICT LIABILITY
Criminal liability imposed without any demonstrated culpability. A crime where at least one
material element does not require a mens rea. A mistake of fact, whether reasonable or
unreasonable, is never a defense to a strict-liability offense. D
A. EXAMPLES:
a.
b.
c.
d.

Statutory rape: strict liability as to the age of victim (Olsen)

Bigamy: as to whether youre married already
Felony Murder: no mens rea needed for murder
Minor offenses: speeding, selling liquor to a minor, etc.

B. LEGISLATIVE INTENT
They would rather subject an innocent Defendant to a penalty than expose innocent people to
dangers. This is used for deterrent purposes.
US v. BalintCongress Determined S/L to be Better than no Liability because selling drug
D sold drugs without knowing that they were prohibited drugs. HELD: Upheld strict liability--he who
shall do them, shall do them at his peril and will not be heard to plead in defense good faith or
ignorance. Proof that he knew he was selling illegal drugs is not required by the statute. Justifications:
hard to prove knowledge; Ds should know what they are selling; Congress weighed the injustice of
subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger
from the drug: the latter was preferably to be avoided.
US v. DotterweichActing Reasonable is not a defense (strict liability)
The drug manufacturers labels were wrong twice. The jury acquitted the corporation but convicted
Dotterweich, its president. HELD: conviction affirmed. Statute required no mens rea; no need to know
if mislabeled to be guilty. Even if he had been very cautious it wouldnt matterstill liable (strict
liability).
PROBLEM: even people who take all reasonable precautions will still be guiltydoes this serve any
deterrent purposes? Strict liability could deter the most careful people from participating in the much
needed activity (like selling pharmaceutical drugs.

METHODOLOGY
If the statute contains mens rea, then no S/L. If not then, if it is common law crime, no S/L; if it has
severe penalty (>~1 yr prison), then prob. no S/L; if complex regulation, may be S/L; if D would be guilty
of a lesser crime, then S/L on the greater crime.
If you get a blank statute ask
1. Is it a public welfare offense?
2. If not, then ask if it is felony murder context, or could use the Bramwell/Brett theory (since other
contexts get rid of mens rea standard)
3. If not, then have to prove recklessness.

51

C. PUBLIC WELFARE OFFENSES: FEATURES

Strict Liability/Public Welfare Offense (satisfies some, most, or all of these factors)
1. Not traditional common law crime
2. New regulatory offense
3. Developed in response to preventing harms arising from industrialization (to protect health,
safety, welfare
a. Acts of one person can now have large impact on innocent people
b. Strict liability acts as a way to enforce necessary regulations
4. Minimal penalties
5. Minimal stigma
6. D in best position to prevent the harm (consumer or public are incapable of protecting
themselves)
Morissette v. USDifference b/n Common Law Crimes and Public Welfare Offenses
Conviction for conversion reversed because D honestly believed the cases were abandoned and
just because statute doesnt mention intent does not eliminate the element of intent required for a
conviction. (this is not strict liability-not public welfare offense) use because it establishes what
the public welfare offenses are
Defendant took bomb shells believing they were abandoned by the US and that he was not violating
anyones rights in taking them. Rule: 18 USC 641: crime to knowingly convert government
property. Trial court rules strict liability. HELD: overturned conviction, it requires proof of mens rea.
A blank statute does not mean that no mens rea is required. Supreme Court ruled that knowingly
modifies the attendant circumstances. It distinguishes common law crimes, where Congress didnt
want to eliminate mens rea (its inherent in the crime even when not expressed), and Public Welfare
Offenses and says this is a common law crime so no strict liability.
Distinction from Balint: crime depends on no mental element but consists only of forbidden acts.

D. JUSTIFICATIONS FOR STRICT LIABILITY STANDARD:

a. Deterrence
i. Strict liability says conduct is so dangerous that they want to deter. If the
standard was negligence, people may take just enough precaution to be found
that the took reasonable precautions, but court wants people engaging in such
risk activity to take EVERY possible precaution. Strict liability is saying that any
deviation is a gross deviation.
b. Correcting inefficiencies: courts would be swamped with cases if you allow mistake.
i. Large numbers of these types of cases: courts will be backed up
1. This suggests the opposite though: that we should require mens rea b/c
there is a danger of ensnaring truly innocent people
ii. Mens rea is difficult to prove: lessens the burden on the prosecution
1. This argument seems to support abolishing mens rea entirely
c. Balance of harms: Balint court concern: weigh the harm to D versus the public
d. Low penalties: But the penalty doesnt always match up. MPC no imprisonment allowed
e. Minimal stigma
f. Easy to avoid punishment: you dont have to go into the business in the first place
i. You assume the duty if you do

52

E. ALTERNATIVES TO STRICT LIABILITY:

a. CIVIL SYSTEM
i. These concerns are largely addressed within this system already
ii. The deterrence in a civil case is much greater
iii. Limitation:
1. If theres no damage, then theres no liability
iv. With strict liability, we prevent the need of showing damage
Staples v. United StatesNarrower view of S/L: Doesn't Apply to Otherwise Innocent Conduct
(Bramwell approach)
Defendant had rifle and didn't know he had automatic weapon. Rule: it shall be unlawful for any person to
possess a firearm which is not registered to him. HELD: mens rea required. Reverses conviction, does not
apply public welfare offense rational but says that when statute blank, need the mens rea. Does not apply
strict liability (prosecution has burden of establishing that the legislature intended to impose strict liability
and did not prove it here). This uses a Bramwellian approach (there is no moral wrong to owning
unregistered rifle) Reasoning: innocent citizens could be imprisoned if their guns had been worn down
into fully automatic weapons. The harsh penalty (10 years) with the rule confirms that mens rea is
required. Without a clear statement form Congress that mens rea is not required, we should not apply the
public welfare offense rational to interpret any statute defining a felony offense as dispensing with the mens
rea.
NOTE: They take a different approach from Morisette. Owning a gun is otherwise innocent
conduct so strict liability is not appropriate because person wouldnt suspect to be a crime.
(Dissent argued that no one owning an altered automatic is innocent). Owning a grenade does put
you on notice though that youre doing something wrongso S/L for grenades but mens rea
required for rifles.** They dont look at the public offense factors from Morisette, only penalty
and stigma (used to support decision already made).
COMMENTARY
Hart's Argument:
Hart says on bottom of pg 252 says that the court gets it wrong in Morissette because if
anything, common law crimes should be the strict liability crimes because with common law
crimes, people know what they are doing is wrong and they are more blameworthy, so it
makes more sense to relax the mens rea requirement because you already know you are doing
something wrong (this sounds like the Brett doctrine and the felony murder doctrine and the
Bramwell doctrine). Hart suggests that taking something that you are not sure is abandoned
(which is what Morissette had mens rea for) is already wrong and blameworthy. It is not okay
to do something if you are not entirely certain that it is ok to do.
Under Harts approach, Morisette should be convicted b/c taking property is immoral, but
Dotterweich was a pharmacist selling medication, so SL doesn't seem right.
This was the reasoning in Staples.

State v. BakerVoluntary Acts- Strict liability crimes dispense with the mens rea but dont
dispense with the voluntary actus reas.
D was convicted of speeding. His defense was that his cruise control was stuck and not a voluntary act.
HELD: Defendant voluntarily activated the cruise control and was the agent in causing the act of speeding.
Unexpected malfunction of essential components (brakes), differ from the malfunction of cruise control
which the driver has voluntarily delegated partial control of that automobile.
NOTE: Why let voluntariness be a defense to strict liability? There still needs to be an actus reus
(for strict liability). But the prosecution will try and place voluntariness under mens rea and claim
no defense b/c strict liability and the defense will try and push it under actus reus.
MPC ON STRICT LIABILITY

53

MPC strongly disfavors strict liability offensessee casebook 104 (5) on 1078 and 2.05 on 1084. Says if
there must be strict liability, it should mean no jail time and no criminal record.

54

MISTAKE OF LAW
Ignorance of the law is no excuse.
JUSTIFICATIONS:
a. The law is definite; any mistake of law is inherently unreasonable.
i. But there are many complex statutes: reasonable to be unaware of all of them
b. If mistake were recognized, it would invite fraud.
i. Possibility of fraud exists in all areas of law: we hope the jury will be able to
detect it.
c. If common law were to allow mistake of law defense, you would discrourage people
from learning the law. People who actually know the law would be punished more than
people who dont since those who know the law cant get this defense.
d. Kahan: Larger interests on the other side: want people to learn the law; deter ignorance
i. Refusing to allow reasonable mistakes will motivate people to not learn the law
ii. Retributivist: punish only those that choose to do wrong. There is no need to
punish innocent to deter them from further unlawful conduct.
e. Allowing mistake of law would overburden the courts
EXCEPTIONS ALLOWING MISTAKE OF LAW:
(Briefly summarized, see details below)
1. Statutory exception (NY Penal Law and Section 2.04(3) of MPC)
2. Mistake as to some other law Those floorboards werent my property?
a. Collateral Mistake of law, AKA failure of proof (same logic as mistake of fact)
b. MPC Section 2.04 (1)
i. Ignorance or mistake as to a matter of fact or law is a defense if a) the ignorance
or mistake negatives the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense
3. Direct mistake of law as failure of proof (negates the mens rea). Direct mistake of law functions
as failure of proof when it negates the mens rea regarding a material element, and it only negates
the mens rea when the statute itself has element that requires knowledge of the law.
a. It is a defense when he acts in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous: see Model Penal Code 2.04(3)
i. Think of this as a Common Law approach
E.g.
T1 Statute in Place
T2 D Acts
T3 Statute determined to be invalid or erroneous
T4 D charged- Mistake of law
T5 D shows different interpretation of the statute
People v. MarreroNo Mistake of Law Defense Applies MPC
D federal corrections officer thought he fit the definition of a peace officer and could conceal an
unregistered weapon. He was charged with violation of 265.02(a)(1)(a) which made it a crime to
have unlicensed firearm but exempts peace officers.. HELD: no mistake of law defense. It IS a
defense when he acts in reasonable reliance upon an official statement of the law, afterward
determined to be invalid or erroneous. To have a defense a D must show that the statute permitted
his conduct, not merely that he believed it did. If Defendants argument were accepted, the
exception would swallow the rule. Mistakes about the law would be encouraged.
NOTE: Why was D convicted? T1: Statute enacted, T2: D acted, T3: the court didnt
invalidate it, they interpreted it. This doesnt except him under the Model Penal Code
United States v. AlbertiniBefore Cert is granted (See MPC 2.04(3)(b))

55

D demonstrated at navy base and was convicted for entering the base even though barred. 9th
Circuit reversed. He demonstrated again. SC granted cert and affirmed conviction. Government
prosecuted him for 2nd demonstrations. HELD: (9th) he cannot be convicted for acting in reliance
on the 9th Circuits opinion at least until the SC grants certiorari. Otherwise it would be
government entrapment. When entrapment is caused by judicial opinion, reliance defense is
even more compelling since courts interpret the law.

b. Types of Mistakes of Law:

ii. Direct Mistake of Law NOT A DEFENSE: I knew what I was doing but I
didnt know it was prohibited by law.
1. This is an affirmative defense and is not a defense to a mistake of law.
a. It would encourage ignorance.
2. E.g. Statute: officials cant take money from businesses working for the
city. Official takes money from business but says he didnt know it was
a crime to take it.
a. This is the traditional Mistake of Law to which the rule says it
is not a defense.
iii. Collateral Mistake of Law: Second lawI didnt know what I was doing: I
knew it was against the law to do this but I didnt know I was doing that. The
general rule is that the mistake of fact going to a collateral law that defines a term
of the offense is a viable defense. (If second law is within the same body of
statutes, then it is not collateral mistake of law!)
1. This is a failure of proof defense, not an affirmative defense.
2. Ds mistake relates to a law other than the offense hes charged for.
3. E.g. The official knows it is illegal to take money but didnt know that
the business was involved with the city. So he didnt know he was
engaging in the illegal conduct.
4. NOTE: Collateral mistake of law is a defense when it looks like mistake
of fact
5. Model Penal Code: 2.02(9): Cant use mistake of law as an affirmative
defense unless it says.
b. The law involved is not the law defining the offense; it is some
other legal rule that characterizes the attendant circumstances
6. Why allow for a Collateral Mistake defense?
c. The collateral mistake negatives the mens rea requirement of a
material element. Prosecutor has to prove mens rea but cant.
i. See Model Penal Code 2.04(1) Above (Mistake of
fact)
d. This doesnt work for Marrero because he got wrong the statute
for which he was charged. Court held that mistake of law was
unavailable when the defining term was in another statutory
body of laws.
Regina v. SmithDifferent-Law Collateral Mistake allowed
Rule: Crime to destroy or damage property of another. Mens rea: assume
recklessly. D damaged property in his apt. that he though was his (he built it).
How did he go wrong? He didnt know the law that if a tenant makes a
permanent fixture, it becomes the landlords. HELD: Conviction reversedSo
its a collateral mistake of law b/c he mistook a different law than the one he for
which was charged. Here, mistake of law is a defense even though D is not
mistaken about the law that he is charged with. Collateral mistake of law is a
defense because he did not have the mens rea for the first law because he did not
know the second law.
*This case is not inconsistent with the basic doctrine that ignorance of the law is
no excuse.

56

State v. Woods
Man gets divorced in NV and marries D. They go back to Vermont and she is
charged with being in bed with another womans husband. Mens rea: assume
recklessly. (Not S-L Offense). She knew this was a crime but didnt know that
Vermont does not recognize NV divorces unless both parties are present.
HELD: Conviction upheld. Court does not allow the mistake of law defense that
D woman did not know the second law that her new husbands ex wife had to be
present for the divorce to be legit.
This case conflicts with Regina v. Smith
MPC now agrees with Smith, that there should be a mistake of law defense
when there is a second law that the D is not aware of.

NOTE: The law expects you to know all the law; so a direct mistake of law is no defense.
But this exception doesnt expect you to know the law that modifies the attendant
circumstances. How does this make sense? People can still say I didnt know.

iv. Direct Mistake as a Failure of Proof Defense: second traditional exception

(statute has to include a requirement about knowing about the statute)
1. Courts will not use the direct mistake as an affirmative defense but as a
failure of proof.
2. The statute on its face requires awareness of its existence for guilt.
a. E.g. Its a crime to send sulfuric acid through the mail.
i. You didnt know. Direct mistakeno defense
b. But, if the second part says: Anyone who knowingly violates this
statute is guilty.
ii. This becomes an attendant circumstance.
iii. If you didnt know, then it negatives the mens rea
requirement.
3. This is a failure of proof defense.
4. This mistake is the opposite of a moral wrong: youre not already on
notice.
Cheek v. United StatesUnreasonable but still a defense/Requirement of
Willful Violation
Facts: Cheek, a professional pilot for American Airlines, was convicted of
willfully failing to file a federal income tax return for a number of years in
violation of 26 U.S.C. Section 7201, which provides that any person is guilty of
a felony who willfully attempts in any manner to evade or defeat any tax
imposed by this title or payment thereof. He was convicted under Section 7203
(1) for the misdemeanor offense of willfully failing to make a return required
by law. His defense was that based on information he received from a group
opposing the tax institutation, he honestly believed that under tax law he owed
no taxes, including taxes on his wages, an dthat these laws were
unconstitutional. He says that he truly believes that it is unconstitutional and
that wages are not income under the income tax.
HELD: Remanded for further proceedings. SC defined willful as voluntary,
intentional violation of a known legal duty. D honestly believed he didnt have
to. The court made willful an attendant circumstance. Must know of it to
violate it. The common law presumed that everyone knew the law but with the
proliferation of statutes, it has become difficult to know all your duties. Court
says that Ds argument that the statute is unconstitutional and doesnt apply to
him is not a defense. Otherwise anyone could claim this and court doesnt want
to encourage ignorance of the law. He has been paying taxes up until now and
just decided to stop. He had the actus reas (intending not to pay taxes) and the
mens rea (knew he was obliged under the law to pay taxes. Court says he knew
about the law, knew it applied to him, but that this is not mistake of proof but a
regular mistake of law and it is not a defense. Court says Direct mistak of law

57

as failure of proof does not apply to this constitutional argument. Cheek could
have paid taxes and filed for a refund, or taken it to the courts before hand, but
he ran the risk of being wrong when he put in effort to believe that he did not
have to pay taxes.
Liparota v. United States (266)Follows Cheek-Need knowledge of regulation
Liparota owned a sandwich shop that was not authorized to accept food stamps.
Rule: whoever possesses coupons in any manner not authorized by the statute
is liable. HELD: Court says knowledge that how you required food stamps is
against the law is a failure of proof. Prosecutor has to show that D knows it is
against the law to get the conviction.
Note: 3 cases that say knowing is not material element---these cases direct mistake as failure of proof are not
defenses here!: Bryan v United States (firearms), US v Ansaldi (date rape drug), and US v Overholt (contaminated
water) decide in opposite way, saying that knowing is not a material element of the offense. Why? In the last 3
cases, the statutes themselves look a lot like public welfare offenses so trying to be like strict liability, but you cant
use the public welfare analysis in these cases because the statutes all say willfully so there is a mens rea stated so
cant be strict liability. How else can we distinguish these cases from Cheek and Bryan? In Cheek, a lot of people
have problems with paying taxes because its so complex but people know it is morally wrong (Bramwell approach)
for selling guns, selling date rape drug, and contaminating water spillage. So read the last 3 cases, Bryan, Ansaldi,
and Overholt, person should already know that they are doing something wrong even if they dont know its against
the law. This shows how pervasive the Bramwell approach is even though it is so strongly disfavored.

v. When Due Process requires knowledge of a legal duty:

1. The Lambert Court set up considerations of when the court requires
knowledge of a legal duty:
a. The conduct is wholly passive
b. The Defendant wasnt on notice
c. Heavy fines
d. The statute doesnt serve important state interests
iv. E.g. They just wanted a list of felons
Lambert v. CaliforniaCourt Required Willfulness
D felon was convicted for failing to register with the city. No willfulness is required in
the ordinance. HELD: where a person did not know and there was no probability of such
knowledge, he may not be convicted consistently with Due Process. The conduct here is
wholly passivemere failure to register. This is different from the commission of acts or
the failure to act under circumstances that should alert the doer to the consequences of his
deed. Duty was based on the basis of a statute rather than an activity. Punished an
omission.
Dissent: Its not the courts position to impose willfulness on the ordinance.
Reasonable Mistake of Law
Unreasonable Mistake of Law
Reasonable Mistake of Fact
Unreasonable Mistake of Fact

Specific-Intent Crime
Exonerates
Exonerates
Exonerates
Exonerates

General-Intent Crime
Guilty
Guilty
Exonerates
Guilty

(But must also look to Moral Wrong and Lesser Crime theories in Common Law)

MODEL PENAL CODE

c. THREE PROVISIONS:
vi. 2.04(1): defense if it negatives the mens rea
vii. 2.04(3)(b): relied upon an official statement of the law afterward determined to
be erroneous contained in:
2. A statute
3. A judicial decision
4. administrative order or grant of permission

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5. an official interpretation of the public officer charged by law with

responsibility with interpretation, administration, and enforcement of the
law defining the offense.
viii. 2.02(9): cant use mistake of law as an affirmative defense unless the language of
the statute so provides. Collateral mistake of law is a defense

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THE CULTURAL DEFENSE-MISTAKE OF LAW

If it fits into an existing legal theory, you might be successful (how particular to make the person). No
court has fully embraced the idea of cultural defense. At most general level, the question is whether and
to what extent, cross cultural evidence can and should be admissible to acquit D or mitigate his sentence?
What happens more frequently, is that evidence of cultural background allows Ds this defense or that
defense (like provocation defense).
Arguments for Cultural Defense
Harvard Law Review-There should be general cultural defense. Evidence of cultural background
can give reasons not to convict.
This is so contentious because it raises questions about who should get defenses or who should be
the target of the criminal law. The argument is that in truly pluralistic society, we should be
sympathetic to different cultural backgrounds
Maybe we should allow the cultural defense when the defendants and the victims are all from the
same culture. But there are differences between first generation and second generation.
Arguments against Cultural Defense
We have criminal law that applies to everybody and there is concern about the victimsif we
allow cultural evidence to defeat criminal charge then you do not give justice to the victims.
There are questions of race and gender.
We dont allow different defenses across different states, so why allow the cultural defense?
2 ways the cultural defense has been used
1. That there should be independent affirmative defense called the cultural defense (Harvard Law
Review article). Ex. It would have the most powerful effect in a case like Kimura because in that
case, otherwise it would be difficult to prove anything other than 1 st degree murder. The
argument on her behalf is something like what I did was reasonable. So if she were to
introduce evidence, she would have to say even though I had the actus reas and the mens rea,
you should find me not guilty. BUT THERE ARE NO COURTS THAT WILL ACCEPT THE
CULTURAL DEFENSE AS AFFIRMATIVE DEFENSE because courts want to protect the lives
of innocents and dont want to encourage killing innocent people and because of the feminist
objections-the cultural perspective thats offered harms the woman (it is often the wife and kids
who ware supposed to die) So the multicultural/pluralist perspective conflicts with the feminist
perspective in this sense.
2. Cultural defense comes up frequently when cultural evidence helps to make a case (getting them
provocation defense). So like in Butler case (we killed that victim because he desecrated that our
sacred burial ground) so that evidence should be considered. (If Butler was in a Girard
jurisdiction (the box) his argument would go nowhere, but in Maher jurisdiction, it would go to a
jury and jury could find that there was reasonable provocation. ***The provocation defense is
already a cultural defense. The problem with trying to get cultural background as evidence is that
its hard to prove how deeply you were in that culture, if you were a traditional person and court
has to find out if she is really imbued with those cultural norms and judge has to decide which
evidence is appropriate. Or what if you are from Laos and Laosians kidnap women to make them
their wives (it is the cultural norm) but it is not accepted by the Laos government.

Example Cases for Cultural Defense-think about how you can use it within our traditionl defenses
(mistake of fact/provocation)

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1. Moua-case of Mong tribesman who recently emigrated from Laos. In his community the way
you pick bride is by kidnapping her and having sex with her and the custom is that the girl/bride
is supposed to protests vociferously as evidence of her modesty. Moua comes to America, finds
girl he likes, so kidnaps this Laosian American who has never been to Laos and he is charged
with kidnapping and rape. This is the strongest case for the defense because there was mistake of
facthe actually thought she consented because of his background
2. Chen-man bludgeons his wife to death and his defense is that in his community in china, a wifes
infidelity is stain on his name an dtheir ancestors, and the only way is to kill her.
3. Kimura-Japanese woman came from Japan and spoke very little English, finds out her husband is
having affair, so she engages in parent-child suicide to rid themselves of the shame of the adultery
(she killed her kids before she killed herself) (provocation?)
4. Butler-Native Americans kill someone who desecrated their sacred burial grounds. (provocation)
5. Rodriguez-Charged with murder after street/bar fight and argues that he comes from macho
Puerto Rican culture where men learn not to back down from a fight
6. Wu-Another parent child suicide (she was afraid to bring him back to her community where she
is unwed mother and is afraid that no one will look after him)
7. Khat-Somalians engage in chewing this drug. They argue that it is part of their culture but they
are smuggling it in and know it is against the law here. Or if they are in states and just get it from
friend, only defense can be direct mistake of law thats against the law and mistake of law is
not usually a defense. You could argue that this is a mistake of some other law to get the defense,
but then people would argue this about every drug. They are totally not culpable!
8. Bui-his wife had temporarily left him and he killed their children and tried to kill himself (but this
was weak cultural evidence claimhe comes from community where wifes infidelity is huge
shame)
Two arguments that are raised in these cases
1. Involuntary act (not accepted by court)-that they didnt mean to do it, didnt know they were
doing it.
2. Insanity Defense-to get the defense, you have to prove that there was mental disease or defect and
Ds resist this kind of stigma and say that what they were doing was right by their community

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V. RAPE
The offense of rape generally consists of forcible sexual penetration. In the absence of fore or threat of
force, nonconsensual sexual penetration is generally a criminal offense only if victim is underage,
unconscious, or mentally incompetent.
4 ELEMENTS
1.
2.
3.
4.

Intercourse
By force or threat of force,
Against the will of the victim, and
Without the victim's consent

3=4=victims resistance (there are not really any other crimes where actions on the part of the victim are
an element of the crime). Today we traditionally treat against the will of the victim and without the
consent of the victim as the same thing.
ACTUS REUS (hardest to prove)
FORCE
Rape is not complete upon proof that the female did not consent. Prosecution must also show that
Defendant acted forcibly or by threat of force of physical injury.
TEST FOR FORCE: (Taken from Hazel: See Rusk): To determine force the common law
developed a resistance requirement:
1. Victim resisted and the Defendant overcame her resistance by force, or
a. Was the resistance overcome by force? If no, then it's not rapeit's change of mind
2. Victim failed to resist out of fear
1. RESISTANCE: What level of resistance is necessary by the victim?
3 DIFFERENT STANDARDS:
1. To the Utmost: Common Law Standard
2. Just need evidence that you found it Repugnant and Abhorrent: dissent in
Rusk
3. Reasonable Resistance: Standard today
a. This is a totality of the circumstances test: jury question: Good faith
resistance measured by the totality of the circumstances.
b. See Sherry
State v. RuskVictims Fear must be Reasonable/woman must make good faith
resistance under the totality of the circumstances.
Facts: Edward Rusk was found guilty by a jury of second degree rape in violation of
Maryland Code Art 27 S463(a)(1) which provides that A person is guilty of rape in the
second degree if the person engages in vaginal intercourse with another person: 1) By force
or threat of force against the will and without the consent of the other person. Pat met rusk
at bar and D asked her for ride hom, Pat declined to go into home but he took her keys so she
went up. She made no attempt to leave. She asked if she could leave, started to cry, and
defendant put his hands on her throat and began lightly to choke her. Pat asked if he would
let her go if she did what he wanted, he said yes and they had sex. Court of appeals reversed

62

conviction on ground that Pat did not resist and did not possess fear great enough to overcome
an attempt to resist and state appealed.
Issue: Is the reasonableness of a victims rape a factual question for the jury?
HELD: Yes, judgment reversed, affirming conviction pretty much.
Lack of consent is established through proof of resistance or by proof that the victim failed to
resist out of fear. The victim must have actual and reasonable fear and the reasonableness of
victims fear is a question of fact for the jury.
The evidence in this case is sufficient to allow a reasonable jury to conclude that Pats fear
was reasonable and prevented her further resistance.
There was not enough resistance (first prong) but her fear was reasonable and she failed to
resist out of fear. Fear includes but not limited to a fear of death or serious bodily harm, or a
fear so extreme as to preclude resistance, or a fear which would well night render her mind
incapable of continuing to resist, or fear that so overpowers her that she does not dare to
resist.
Victim must resist the rapist "to the utmost" or "until exhausted or overpowered."
Dissent by Cole: HE PUTS A HUGE BURDEN ON THE WOMAN--Verbal resistance is not
enough (no can mean yes) and woman must resist to the utmost or until exhausted or
overpowered. Her fear is not reasonable. The way he looked is not enough. There are no acts or
conduct on part of D to suggest that these fears were created by the D or that he made any
objective, identifiable threats to her which would give rise to her failure to fell, summon help,
scream, or make physical resistance. State failed to prove the essential element of force beyond
reasonable doubt.
Problem with this dissent: it places huge burden on the woman and makes women have
to put themselves even more in harms way by having to resit to the utmost.
Defense of the Dissent: If you dont have something like this, you could convict maybe
insensitive people and call the violent criminals.

People v. Warren-Fear has to be reasonable from Ds perspectivevery problematic!

Facts: P was biking along isolated reservoir when D approached her and said this will only take a minute,
my gf doesnt meet my needs. He then lifted her off the ground and carried her into woods where he
performed several sex acts. He was much larger and because P did not scream, fight back or attempt to
flee.
HELD: Rape conviction reversed because at no time did she tell D to leave her alone or put her down. She
must communicate in some objective manner her lack of consent unless would endanger her. Court said
that victims fear was not reasonable and that she needed to communicate that fear.
According to Warren Court, the reasonableness of the fear has to be from the defendants point of view so
he can realize that woman is submitting out of fear rather than desire. But is this right? No, I think it
should be from the perspective of the victim. Warren doctrine said that she failed to resist out of fear but
this fear has to be reasonable to show nonconsent. Court says that the reasonable person is someone in the
mans situation because how could D have known? This blurs the distinction between the actus reas and
mens rea of rape. The problem in warren is that it discusses nonconsent (mind of victim) but then holds it
to mind of the reasonable man.
Puzzling: If we take the Warren courts perspective, under actus reas, you are looking at the victims actions
and can only satisfy if the victim acted in certain ways judged from the perspective of the D.
If you credit the belief that two people in the situation could have different viewpoints on reasonable fear,
what it says is that you can have a situation where her fear is reasonable and she failed to resist because of
her fear and from her perspective she was raped, but from his perspective her fear was not reasonable, she
did not resist, and it was not rape---so the law is not equipped to handle rape questions because there could
be a victim of rape and not a rapist.

Why do we have the resistance requirement?

o To ensure that it was not consensual
o Distrust of the woman
It's too easy to claim rape after the fact
Easy to charge and harder to prove
o It's a serious crime.
Policy Concerns against the resistance requirement:

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o
o

Requirement is based on a distrust of woman

While the presence of resistance may be probative on the issue of force or
nonconsent, its absence may not
"Frozen Fright" response resembles cooperative behavior
CALIFORNIA RAPE LAW: Californias statutory resistance
requirement was repealed in 1980 in People v. Barns because some
studies demonstrate that while some women respond to sexual assult
with active resistance, others freeze and this frozen fright response
resembles cooperative behavior. The law does not expect that in
defending oneself a person must risk injury or death by displaying
resistance in the face of attack.

2. FEAR: Must be objectively reasonable. (See Nonconsent below). Is any fear sufficient to
make out a reasonable fear?
Fear must be of death or serious bodily harm, so extreme as to preclude resistance, or a
fear which would well nigh render her mind incapable of continuing to resist. This has to
be reasonably grounded. (Rusk)
State v. AlstonFear cannot be a general fear-only requires there to be some physical force
Defendant and victim lived together for 6 months in an abusive relationship; she moved out and a
month later, Alston said he was going to fix her face (threatened her in public) and pushed her legs
apart and penetrated her. HELD: conviction reversed. The evidence clearly demonstrated that victim
did not consent, but it reversed because there was no substantial evidence of force. She didn't revoke
her prior consent. Fear cannot be a general fearit must be fear that what is being asked for is for her
to submit to unwanted sex. The prior threats were not "sufficiently related to the sexual conduct" to
lead V to believe she was in danger if she didn't have sex with him. Court distinguished between the
night and the previous behavior, and while fear might have been a general fear and justified, absent
evidence that the D used force to overcome her. Court wants to make sure that this particular sexual
action is rape.
Problem: It doesnt seem unrealistic to image that V failed to resist out of rear.

Why does fear have to be reasonable? (See Warren, Below)

o So long as the trier of fact is persuaded that the fear is genuine, why should
reasonableness of the victim ever be an issue?
o If Defendant subtly reinforces fears, shouldn't conviction be proper
PRIOR ABUSE
There has to be a connection b/t the prior abuse and the current submissiveness.
The victim must "expressly and unequivocally revoke her prior consent and lack of
consent in this case."
TEST : Whether the totality of the circumstances leads to a reasonable inference
that the unspoken purpose of the threat was for her to submit to unwanted sex
State v. Alston (See Above)
The Court held that the events were too temporally distant to be relevant. Just
because she said "NO" it doesn't mean that she wasn't consenting. The court did find
however, that she didn't consent, but because there was a prior relationship the
prosecutor had an extra hurdle: they have to show that she communicated clearly her
rejection of her prior consent: 2 questions:
a. Were her statements communicated clearly?
b. Did her statements and actions "expressly and unequivocally revoke
her prior consent and lack of consent in this case"?

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2 ISSUES WITH FORCE:

1. Does the force have to be physical or are coercive threats and pressure sufficient?
2. Does the force have to extrinsic to the act of penetration or can the penetration be sufficient to
show force?
(1) NONPHYSICAL THREATS
Nonphysical threats are insufficient to ground a reasonable fear leading to nonresistance:
THIS IS THE STANDARD OF RAPE LAW-COERCION DOES NOT MEAN FORCE
State v. Thompson
Defendant principal forced student to have sex by threatening to not let her graduate. HELD:
no rape, force must be physical. Court agreed that act was wrong. The word force is used in
its ordinary connotation: physical compulsion, the use or immediate threat of bodily harm.
Commonwealth v. Mlinarich
Defendant took in 14 yr old juvenile delinquent and threatened to send her back if no sex.
HELD: No rape because force must be physicalthe language allows the court to expand the
definition but they chose not toWhy? They were concerned that if they do allow for an
expanded definition of force to include nonphysical there would be unfortunate consequences:
It would be easy for someone to make up the charges
They are afraid of a slippery slope
Court: not as problematic here as when somebody uses physical force. There are cases that
shouldnt be captured as rape if we define force so broadly.
Dissent: if you look at the term force, the legislature didnt mean physical force. So were
limiting the number of cases.

Nonphysical threats are sufficient:

State v. Lovely
D took in a drifter. When drifter tried to break off the relationship, Defendant pressured him
to submit to sex by threatening to stop supporting him. HELD: conviction upheld. The trial
judge had properly allowed the jury to consider Ds threats.
Distinguish: threat v. an offer
Commonwealth v. Rhodes(336)
Forcible compulsion connotes superior forcephysical, moral, psychological, or intellectual

SOLUTIONS
1. Model Penal Code: conviction for LESSER CRIME OF "gross sexual
imposition" in cases where submission is compelled by threat of force or "by any
threat that would prevent resistance by a woman."
2. Several states are similar to Model Penal Code by extending rape to situations
where consent is obtained through: duress, coercion, extortion, or using a
position of authority.
(2) PENETRATION AS FORCE
The act of intercourse itself involves some degree of physical force. Should this kind
of force meet the force requirement for a rape conviction?

65

State in the interest of M.T.S.

Facts: 15 year old girl lived with her family and MTS, a 17 year old boy. V claimed
to have awakened with D on top of her, having already penetrated her. She slapped
him and told him to get off and leave, which he did. At trial, court found that the
victim consented to kissing and heavy petting, was not asleep during sex, and that she
had not consented to sex and that second degree sexual assault had been proven.
Issue: Does the statutory requirement of physical force mean the use of force to
overcome lack of consent?
HELD: No. The victim no longer is required to resist and need not have said or done
anything. To require physical force in addition to unwanted sexual penetration would
be inconsistent with the legislative purpose of eliminating consideration of whether
victim resisted or expressed non-consent. Therefore, any act of sexual penetration
without freely-given permission of victim to the specific act of penetration
constitutes sexual assault.
PROBLEM: A finding of rape could be made in just about any case under this
standard.
NONCONSENT
There's an affirmative burden on the victim to signal to the defendant that she does not consent.
Under actus reus, the nonconsent question is objective: was there consent? Either yes or no.
TEST FOR NONCONSENT: Same as for Force.
1. Victim resisted and the Defendant overcame her nonconsent by force, or
2. Victim failed to express nonconsent out of fear
FORCE:

If there was force, then nonconsent is implied.

If she stopped resisting not because of force, then she consented.

FEAR: Fear must be objectively reasonable.

People v. WarrenSee Also, Below: Mens Rea
Victim was 5'2", 100 pounds, Defendant was 6'3" 185 pounds. She was on a bike path and he
picked her up and carried her away. She didn't scream or fightshe was frozen. HELD: her fear
was not reasonable to him. He had to have indication. No weapon. (But he did say "this will only
take a minute.")

RATIONALE AGAINST NONCONSENT REQUIREMENT:

1. It doesn't make sense to treat silence or failure to object as proof of unwillingness.
a. HYPO: Schulhofer's student athlete needing surgery: he isn't sure if he should do it
and the surgeon finally gets fed up, readies the anesthesia and tells him right before
he injects him, "if you don't want to, just say no." He doesn't say anything.
i. No consent in this case. More than silence needed for consent.
b. But if you think of the students hesitance as fore play between the two and the
woman says then no, then yes and each time Defendant does as she says and finally
asks her if she wants to but she doesnt say anything, should he really be charged?

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MODEL PENAL CODE213.1-no rape conviction if honest but unreasonable mistake as to her
consent
(1) A male who has sexual intercourse with a female not his wife is guilty of rape if:
a. He compels her to submit by force or by threat of imminent death, serious bodily injury,
b. He has substantially impaired her power to control her conduct by administering without her
knowledge drugs, intoxicants or other means for the purpose of preventing resistance;
c. The female is unconscious
d. The female is less than 10 years old
(2) Gross Sexual Imposition. LESSER CRIME-A male who has sexual intercourse with a female not his wife
commits a felony of the third degree if:
a. He compels her to submit by any threat (can be coercive non-violent threats) that would prevent
resistance by a woman of ordinary resolution; or
b. He knows that she suffers from a mental disease or defect which renders her incapable of
appraising the nature of her conduct

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MENS REA--RAPE
Mens Rea asks what was the Ds mens rea with regard to her nonconsent, or was there a mistake of fact
regarding her consent? Man thinks she consented, woman says she did not consent, and he argues
mistake of fact.
3 Interpretations
1. Mistake of fact as failure of proof (subjective) Regina v. Morgan, Reynolds v. State, also MPC
Minimum mens rea level is recklessness--if D can show that he honestly believed in consent,
even if it was unreasonable belief, then you cant get conviction because you cant prove the
mens rea. Prosecution has to show recklessness, that it occurs to the D that she might not be
consenting.
This standard helps the defense
Problem: Under a truly subjective approach, Defendant would be innocent where his state of
mind is that of a sexist pig who thinks women love to be forced.
2. Mistake of fact must be reasonable-Traditional Common Law Standard (Sherry)
If D honestly believed but that belief was unreasonable then you can get a conviction.
o This standard helps victims but has problem in that you are focusing on the victim
and the victims actions.
o People misunderstand each other
o Gender gap in sexual communications exists
If we restrict or eliminate the mistake-of-fact defense, some men will be
convicted of rape even though they had reason to believe consent
o Deeper problem: rape law's assumption that a single objective state of affairs existed
but many rapes involve honest men and violated women.
To solve this by adopting the standard of reasonable belief without asking
what conditions make it reasonable, is one-sided, male sided.
3. Mistake of fact is no defense even when reasonable (amounting to strict liability).
(Commonwealth v. Fischer) (Lefkowitz-verbal resistance is enough)
When woman says no, he proceeds at his peril
Justice Brown articulates this at end of Sherry case regarding Lefkowitz
This standard helps prosecution
NONCONSENT
A person is not guilty of rape if, at intercourse, he had a genuine and reasonable belief that the
female was voluntarily consenting. Jury decides reasonableness.
Why?
People v. WarrenTo Put Defendant on Notice (reasonable standard but has to be
reasonable from perspective of defendant.
Victim was 5'2", 100 pounds, Defendant was 6'3" 185 pounds. She was on a bike path and he
picked her up and carried her away. She didn't scream or fightshe was frozen. HELD: her fear
was not reasonable. There has to be resistance. The court is worried about the Defendant's lack of
knowledgehe has to be on notice. He didn't think he was being threatening.

Honest but unreasonable is a defense

Regina v. MorganHonest but Unreasonable is a Defense (recklessness standard) (BUT no
jury is going to accept something that is totally unreasonable) mixed holding.
Morgan tells 3 others they can go to his house and have sex with his wife. He says that she will
struggle but this is b/c she is kinky not because she doesn't want to have sex. HELD: any honest
mistake as to consent is a defense to rape no matter how unreasonable and outrageous. Butthe
court affirmed the conviction: so reasonableness is not irrelevant. So the holding is irrelevant: the
more unreasonable the belief, the less likely it is that a jury will believe the mistake. The jury will
laugh at D. He had to be at least "RECKLESS" then.

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There's a possibility of both an objective and subjective standard.

NOTE: under Model Penal Code: they would have been convicted b/c mistake is a defense if it
negatives some culpability or mens rea. Here it had to be recklessness.
Note: We do not follow MPC on rape because under it you cant rape your wife and the crime is
less serious (2nd degree rape) if there is a previous sexual relationship.
Commonwealth v. Fischer-(STRICT LIABILITY) Superior Court of Pennsylvania, 1998, rape
conviction affirmed because no mistake of fact defense regarding her nonconsent just because
they had sexual encounter previously that day. Mistake of fact is no defense even when
reasonable. (amounting to strict liability)
Facts: College woman and boy engaged in rough sex in Ds dorm which culminated in victim
performing fellatio on him. They separated and met up again later and went back to Ds dorm
room where victim testified that appellant locked door, pushed her on bed, straddled her and held
her wrists above her head and forced his penis in her mouth. She struggled with D and said she
did not want to have sex but he said I know you want it and Nobody will know where you are.
When she tried to leave, appellant blocked her path, and she kneed him in the groin and escaped.
D said that she said it would have to be a quick one and they engaged in same behavior as
previous counter and that when she said no he answered no means yes. Defense argued that D,
relying on his previous encounter, did not believe his actions were without her consent and that his
beliefs were reasonable and that his actions were not forceful. D argued that his case was unlike
Williams in that a date rape case means mistake of fact should be an instruction.
Held: Conviction affirmed. There is no error in not giving jury instruction on reasonable mistake
(second prong) because even if it was reasonable mistake, the standard is strict liability. This case
is not a new one, it is a case of a young woman alleging physical force. There are differences
between Willaims and this case-that Williams and his victim never met before the incident in
question whereas here they knew one another and engaged in intimate contact just hours before
the incident in question. Williams said no mistake of fact defense and to distinguish Williams
based on parties previous contacts is not enough to allow mistake of fact defense. Williams court
is talking about a stranger rape so dont need mens rea since it is strict liability, but this court says
that the rule for stranger rape. (even though this was very different from Williams, the court
had to go with SL because amendments were never adopted)

Commonwealth v. SherryMistake of Fact Regarding Consent has to be Reasonable

Facts: Registered nurse who worked with Sherry (D) a doctor at the same hospital, was at a party
with D. while there, the nurse met Hussain and Lefkowitz (Ds). At various times during the party,
each D made sexual advances toward her then took her to Rockport. Nurse protested but did not
physically resist because she thought they were kidding. In bedroom, she began to remove her
close. Nurse protested but each D had sex with her and then made her bathe.
Issue: Does the accuseds subjective belief that the victim did not object to intercourse constitute a
defense to the crime of rape?
HELD: No, rape convictions affirmed
A rape victim need not use physical force to resist, as long as the resistance used demonstrates
and honest and real lack of consent.
A Ds mistake of fact has to be reasonable, not just honest. Mistake of fact requires good faith
and reasonableness.
A victims statement of no can imply nothing but nonconsent. Even if perpetrator does not
believe the statement, he should be convicted. Victim is not required to use physical force to
resist; any resistance is enough when it demonstrates lack of consent is honest and real. Mistake
of fact requires good faith and reasonableness. Any further action is unwarranted and the
person proceeds at his peril. He assumes the risk. (Strict liability standard)
Ds did not request jury instruction on whether their mistake of fact regarding the consent was
reasonable

Note: The question of what the mens rea standard should be depends on actus reas.
See Reynolds v State Alaska case on bottom of 349-If it is state such as NJ where no extrinsic force and no
resistance is necessary for rape, then they are hesitant to implement the mistake of fact must be reasonable or the
strict liability rule and instead use mens rea standard of mistake of fact as failure of proof (requiring recklessness)
since court does not want to convict innocent Ds. Since legislature does not specify mental state, the mens rea level
is recklessness.

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VI. EXCULPATION
JUSTIFICATION (ex. Self Defense)
The Defendant concedes that they are responsible for the action but believe they should be acquitted
because it was the right thing to do.
1. Yes I did it and am responsible but
2. It was the right thing to do.
SELF-DEFENSE
Self defense is a complete defense. It doesn't negate mens reait's a "Yes, but" defense.

To get self defense claim (justification) must prove 6 things that D(as laid out in
Peterson)
1. Honestly and
2. Reasonably believed
3. that force was necessary to defend against victims
4. Imminent use of
5. Unlawful force
6. and ones own force was not excessive
*The prosecution has the burden to rebut the defenses self defense claim.
*Requires imminence because otherwise you could go get help
HYPOS: Can A successfully claim self-defense?
A commits an armed robbery and hides from the police. A reasonably believes that when the
cops see him, they're going to shoot him. So he shoots the police officerNO. The cops
force has to be unlawful and it isn't
A has a grudge with B and shoots him. He learns later that B was about to kill himNO.
You can't invoke the defense on things you learn after the fact. Must have belief at the time.
B comes after A with a gun. A shoots first and kills him. He's happy because he has wanted
to kill BYES. If all the elements are met, it does not matter if you have some additional
less admirable motives at work.
A and B have a heated argument and B says "I'm going to get my gun." A follows him and
kills himNO. Threat not imminent.
o With self-defense, the law is saying that even if you've intentionally killed a person,
we're not going to call it a crime.
If you're under some urgent danger, and the police can't help, then you have
to take care of yourself.
But if you have a change to get help, the law expects you to do that.
What if A says that there's a warrant out for his arrest and he can't call the police?NO. He
may have an unpleasant choice, but won't be exonerated.
B says "I'm going to punch you in the nose" and A shoots himNO. Must match force with
force. If somebody uses non-deadly force, you can't use deadly force.
A is sitting at a bar and hes heard that B has been going around town saying hes going to kill
him. B walks into the bar with his hand in his pocket. A shoots him.??
o Reasonableness is a totality of the circumstances test
o In this situation, imagine that B was just going to blow his nose and we say that he
should have the benefit of the defense, why should he get acquitted? Is this fair?

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Anna, a white woman, on a deserted street at an ATM, and shes nervous. A young African
American man asks for directions and she kills him. Self Defense?
o Reasonable belief?
o Imminent threat?

THE 'AGGRESSOR' ISSUE

A person may not use deadly force in self-defense if she is the aggressor at the time of the
conflict. An "aggressor" is a person who commits an "unlawful act reasonably calculated to
produce an affray foreboding injurious or fatal consequences."

HYPO: A and B get in a fight and B pulls a gun out and A pulls his gun out faster and
shot quicker but missed. Can B shoot back and claim self defense? NO.
o A's response was lawful force.
So one of the elements is missing.

LOSING AGGRESSOR STATUS

One can begin as the "aggressor" but become a "nonaggressor" and thereby regain the right of
self-defense as long as you effectively withdraw from the initial encounter.
o

HYPO: A and B are in a fight and B says, "I'm going to beat you to a pulp but then
changes his mind and says, "I'm going to go home." A comes after him and beats him
up.
Not an imminent threat of force.

MODEL PENAL CODE3.04-MPC relaxes imminence requirement, in sample exam, if court looks
to MPC, it would require only that Kenny believed that Mary would hunt him down and kill him
if he didnt go back in and shoot her. MPC relaxes the defense requirement somewhat to allow a
subjectively honest belief for is immediately necessary.
The use of force upon or toward another person is justifiable when the actor believes (honestlysubjective) that such force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person on the present occasion. (Use of "believes" means
subjectiveSee 3.09 for limitation)
SELF-DEFENSE AND RACE
People v. Goetz-Objective Standard for Self Defense
Facts: Defendant was on a train when approached by 2 out of 4 black thugs who asked him for $5.
Defendant stood up and fired at each victim, hitting each. D was charged with attempted murder, assault,
and weapons possession. He told police he had gun because he had been mugged and injured 3 years
earlier and had successfully protected himself on 2 prior occasions by displaying the gun. State Penal Law
Rule: A person can only use deadly physical force if a) he reasonably believes that such other person is
using or about to use deadly physical force or b) he reasonably believes that such other person is
committing or attempting to commit a kidnapping, forcible rape, forcible sodomy, or robbery.
HELD: dismissed the counts of the indictment. The idea of whether a Ds conduct was that of a
reasonable man in the Ds situation is not subjective, but rather objective. While the drafters of the NY
law adopted in large part the structure and content of the MPC, they inserted the word reasonably before
believes. Had they meant it to be subjective, they would have just used the mpc language. The
determination of reasonableness must be based on the circumstances facing a defendant or his situation,
including
Such circumstances includes
1. Any relevant knowledge of V

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2. Phsyical attributes of both D and V

3. Any prior experience of D (that might make it reasonable for D to believe self defense)
4. Physical movements of a victim
5. Circumstances of the encounter
6. Movements of the victim
***Jury found that under his circumstances, Ds conduct was reasonable.

1. Statistically, black men commit more crime then white men

a. On the one hand, if we let people decide when they are in danger on the basis of racial
stereotypes, then we allow them to enforce the stereotypesdestructive
i. You'll turn the population into a vulnerable population
ii. Vigilante justice
iii. The people who felt victimized get to control things
b. On the other hand, we have this long-standing doctrine of self-defense.
i. It seems unfair to tell someone that if you are in danger, you are not allowed to act
ii. It's an affirmative acknowledgement of a right: if you can't get help, you should
protect yourself
1. The jury will determine if it is reasonable
iii. People operate with stereotypes: so they will be making this judgment on the basis of
race
1. But if you allow this, then there is a problem:
a. This becomes a CULTURAL DEFENSE
HONEST BUT UNREASONABLE BELIEF DOES NOT GET SELF DEFENSE
MAJORITY RULE-An honest but unreasonable belief is no excuse. No exculpation
MINORITY RULE
MODEL PENAL CODE3.09(2): IMPERFECT SELF-DEFENSE (apply when the belief
is honest but unreasonable)
If you are reckless or negligent in constructing your belief, you cant be found guilty of any
crime that requires a higher mens rea level. You cant be convicted of murder because you
didnt act with intention.
So your mens rea will be used to prosecute you of negligent homicide (if negligent)
or voluntary manslaughter (if reckless)
Under MPC, D can only be guilty of a defense when they have the requisite mens rea
level, so if your belief is honest but unreasonable, you can be guilty of negligent
homicide (Section 3.09 (2) at 1094 and also in the reading at 749

Some jurisdictions allow imperfect self defense, and reduce the crime to manslaughter when
the D had honest but unreasonable belief.

BATTERED WOMAN SYNDROME-courts now uniformly hold that battered womans syndrome is
admissible to support a claim of self defense when a woman kills her abuser
Common law majority: no excuse (no self defense defense)
Common law minority: could be reasonable
State v. NormanTime Definition of Imminence (very strict standard of imminence)
D was a battered wife who tried to get help but couldnt and then killed husband while he was asleep.
HELD: voluntary manslaughter affirmedthreat was not imminent. Perfect self-defense: at the time of
killing, defendant believed it to be necessary to kill the decedent to save herself from imminent death or
great bodily harm. Imperfect self-defense: e.g. D is the initial aggressor, but without intent to kill the
decedent escalates and D kills to save herself. In this situation, culpability is reduced to at least voluntary

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manslaughter; D is not justified. BWS is not a defense when threat was not imminent. Even if BWS is a
defense, the killing was excessive.
Court is worried that giving her the defense would give all battered women the right to kill and anyone
could claim that their fear was so great.
Court holds that D has to honestly believe that this is necessary but court does not consider whether Ds
actions were reasonable.
Legal system is reluctant to give the self defense defense because it gives power to the citizens and
court is pretty much saying that you have to assume that the law enforcement system is working when
it actually is not.
Dissent: for the battered wife, if there is no escape then the next attack is imminent. The question is not
whether the threat was in fact imminent, but whether defendants belief in the nature of the threat, given the
circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.
Robinson v. State-responds to Norman case, giving self defense protection even when someone is asleep
where torture appears interminable and escape impossible, Ds force gets defense if it was reasonable
(bottom of 769). THIS IS AN EMERGING VIEW.

2 DEFINITIONS OF IMMINENCE
1. TIME: immediate; if you had time to run for help, then there's no right to self defense.
a. Traditional definition of 'imminence'
2. FUTILITY: no matter what she did, it did not work for her. We failed as a society. So she does
have the right to defend herself.
POLICY:
If we allow futility to be the definition, there's a danger that we allow people to make their
judgmentsclaim self-defense when the law is not formulated to take it into account. We
have to accept all types of potential for error. If just time, that danger does not exist.
Isn't this just turning self-defense into killings that are morally justified?

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EXCUSE

Ex. Duress & Insanity

The Defendant concedes that it was a bad thing to do but claim that they are not responsible. (e.g.
insanity)
1. Yes, I did it and it was bad thing to do
2. But I am not responsible
3 CATEGORIES
1. INVOLUNTARY ACTIONS:
a. Person had no control over his bodily movementsVery NARROW: cannot have
control over limbs
2. DEFICIENT BUT REASONABLE ACTIONS:
a. D has the power to choose, nothing prevents him, but the choice is so constrained that
an ordinary law-abiding person could not be expected to choose otherwise.
b. Constraining Circumstances: 2 kinds
i. Cognitive Deficiency: defect of knowledge
1. The lack of knowledge must itself be excusable, in the sense that he
was not reckless in making the mistake (of fact.)
ii. Volitional Deficiency: defect of will
1. E.g.: Duress: when a person commits a crime under threats of
physical injury that even a person of reasonable fortitude would have
yielded to the threat.
3. IRRESPONSIBLE ACTIONS: this person could not have been expected to act otherwise,
given the persons inadequate capacities for making rational judgments.
a. E.g. infancy and legal insanity

DURESS-courts create narrow duress defense to deter people from breaking the law
When the law allows a defense to a wrongful action because the actor has displayed some disability
in capacity to know or to choose, which renders the person either free of blame or subject to less
blame.

DURESS-Common law view

1. A threat of (do-it-or-else)
2. imminent
3. death or grievous bodily harm
4. that it is reasonable to fear will be carried out
5. and not applicable to murder (But in some jurisdictions, it can be used as a defense for FM)
*In 2002, CA Supreme Court affirmed that duress is not applicable to murder. Common law view does
not give duress defense to a D who commits murder because it wants people to use all of the possible
options instead of resorting to murder.

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State v. Toscano(adopts MPC) Supreme Court of NJ, 1977-Revises common law to adopt the MPC
approach to defense, reversing Ds conviction and remanding for new trial to decide if D acted reasonably
under duress. Sets objective standardD can be acquitted if court finds that D acted under immediate
threat of death or great bodily harm to himself or another with a reasonable belief that it will be carried out.
Facts: Leonardo told D to defraud insurance companies by threatening him by saying that he knew where
D lived and that he and his wife would be jumping at shadows. Duress?
Issue: In order to establish a defense of duress, must a D have acted in response to a threat of harm that was
present, imminent, and impending?
Held: No. Conviction reversed and new trial ordered to find if Ds fear was reasonable.
Common law rule allowed a defense of duress only when the alleged coercion involved a use or threat of
harm that was present, imminent, and pending, inducing and apprehension of death or serious bodily harm
Unless the act was done. When the source of coercion is a threat of future harm, courts found that D had
a duty to escape. This rule has been criticized for impairing the deterrent value of the criminal law.
Court here instead adopts MPC approach that allows consideration of a reasonable persons reaction to
the threat faced by the D, allowing consideration of age, sex, etc. but not temperament. Court says this is
the best approach and is adopted as the standard for duress defense in all but murder cases.
The MPC departed from the requirement that the result be death or serious bodily harm and immediate
and aimed at the accused. Reasonable fear.

*Toscano could not argue that his act was involuntary, because he made a choice.
*Under common law, Toscano would not get the defense.
*But under MPC, which majority uses, it is up to jury whether he gets the defense. MPC does not require threat to
be imminent and does not require the threat of death or grievous bodily harm.

IMMINENCE REQUIREMENT
TIME
United States v. Fleming-must be immediate threat to get duress (common law majority)
D, army officer, was charged with collaborating with enemy by helping prepare propaganda
desitned to promote disaffection among US troops and making English broadcasts criticizing
American war objectives and calling upon US authorities to withdraw or surrender. He was
shown caves, ditches, and threatened that he would have to walk the 150-200 mile north to get
away but that he would not survive, so he cooperated. Court upheld the conviction because the
danger of death or bodily harm was not immediate---they didnt actually put him on the road and
made him start walking so it was not imminent threat. WHY DOES THE COURT DECIDE THIS
WAY? Wants to give people the incentive to follow the lawdoesnt want to give permission
people to violate the law just because they receive a threat even if it wasnt certain it would be
carried out.

FUTILITY
Why in duress are they willing to expand the immediacy requirement? Lesser of two
evils idea.
United States v. Contento-Pachon-(minority view that imminence should be expanded to
include futility) Duress defense since futility and immediate threat
Gave him the duress defense when he swallowed cocaine filled balloons because the
consequences would have been immediate and harsh and the police couldnt have helped him.
Man swallowed balloons of cocaine to transport them by plane because the lives of his wife
and child were threatened and court reversed his conviction betcause if D had refused to
cooperate, the consequences would have been immediate and harsh and it was up to jury to
decide if D could have escaped.
Note: This is strange because not the usual sense of imminent harm. The result was imminent
but not inescapable. If the police were unable to provide protection, then the defense is ok.
Why? Maybe we're willing to accuse police in other countries of being inadequate.
Regina v. Ruzic (minority view)
Person stabbed and burned her arm and threatening to kill her mother if she doesnt transport
heroin. Court reasoned that if threat left her no realistic choice, she can get the duress
defense even though the threat was not immediate and the threatener was not present when

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she committed the offense. The worry about this case is that it extends the defense and
expands scope where people will get excuse for their crime. It could give people incentive to
defer to less credible threats because they think they are going to get the duress defense.

MODEL PENAL CODE2.09

*MPC does not require threat to be imminent and does not require the threat of death or
grievous bodily harm.
*MPC view applies duress for murder but common law view does not. To find out who is
reasonable person
If a person is coerced to commit a crime, and if commission of the crime is the lesser of two evils,
the defendant may also raise the Code's "choice of evils" justification defense.
(1) Available if Defendant engaged in the conduct charged because he was coerced to do so by
the use of, or a threat to use, unlawful force against his person or the person of another,
which a person of reasonable firmness in his situation would have been unable to resist.
NOTE: It is not necessary to show that Defendant was ordered to commit the particular
offense. MPC addresses human frailties.
(2) Defense unavailable if the actor recklessly placed himself in a situation in which it was
probable that he would be subjected to duress.

Nature of the coercion: must be coerced to commit the crime by the use, or threatened
use, or unlawful force, against her or another
Nature of the force: need not be deadly, as required at common law.
Reasonable firmness test: a person of reasonable firmness in Defendant's situation would
have been unable to resist the coercion
Blameworthiness of the coerced actor: the defense is unavailable to the defendant who
recklessly placed herself in the coercive situation.

Duress Hypos
Hypo: If you drive getaway car when people are going to make a hit and have to do this or otherwise they
would kill your wife, you cant get duress defense under common law.
Hypo: If he drives getaway car for a robbery but the others shoot someone during the robbery, can he be
convicted of felony murder? No, because he is not guilty of the predicate felony (would get duress
defense for the robbery).
Hypo: Under common law view, No duress defense if D put himself in situation where it was probable
that he would be subject to duress (like recklessly joining a criminal gang). And same for MPC but says
no defense if reckless or negligent joining.

Hypo: On both the common law view and the MPC view, threat of someone to burn your house
down would not allow you the defense of duress. Durress is a narrow protection. Protection of
property should never justify criminal wrongdoing (so person committing fraud to protect his
lifes work painting doesnt get the defense. Court wants to deter people, encourage them to go
get help rather than to commit crime to save their property.

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NECESSITYJUSTIFICATION
1.
2.
3.
4.

D has Reasonable belief that

Imminent and unavoidable harm will result unless Defendant breaks the law
Defendant not at fault
Harm avoided would have been greater than harm caused
a. It was the lesser of two evils

Is necessity like duress? MPC treats them very differently but

Difference between duress and necessity:
Duress: other person causing the situation, traditionally duress was thought to be more like
necessity and the defense was given only if imminent harm (N/A to murder) but as it has evolved,
duress has become an excuse rather than a justification (like necessity), dont have to choose
lesser of two evils to get the duress defense
Necessity: natural causes, violation of the law is justified by choosing lesser of two evils
Why should it matter whether the peril is from another person or from some natural event?
HYPO:
o X drives over two people at gun point to save himself.
He is not justified under necessity
But will be excused under Model Penal Code Duress if a person of reasonable
firmness in his situation would have been unable to resist.
o X is prevented from stopping by suddenly inoperative brakes and runs over two people to
save his life.
He will not be excused under duress (Model Penal Code)3.02
o I'm going to beat you up unless you beat him up until he is almost dead
Duress? Yes.
Necessity? No. Greater harm was not avoided.
o I'm going to kill you and your 12 children unless you kill him.
Duress? No. Doesn't apply to murder
Necessity? Maybe. There's a weighing.
GAP:
o Someone whos facing a threat from natural causes and chose the greater of two evils and a
reasonable person would have done the same, then no law covers you.
o HYPO: Dudley: instead of killing Parker, he kills two other people to stay alive, does he get
the necessity defense?
Necessity? No-took Two lives to save one life
Duress? No(Without the fourth element)
There has to be a threat: cant be natural

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Common Law vs. Statutory Law

b) American criminal law was derived from English criminal law which was made up of
two types of law
(1) British common law-judge made law, made on a case by case basis, looking at
facts in front of them, cases in past, and making judgment on current case. They
consider the rule, look at the new facts, and look at what variant of the rule should
be given the new facts. When are you in a purely common law system, that is the
source of the law.
(2) Statutory law-laws passed by the legislature. In England historically all law was
common law but early in 17th century British parliament became more like
legislature and majority of the law was statutory.
(3) At time of Constitution, US completely adopted criminal law of Britain. They
said no more criminal common law but common law is still relevant. Because so
much of the statutory law evolved from the common law, in order to understand
the statutory law you often have to understand the background common law
principles. So, in many cases that we read, courts will look to the common law.
THERE IS NO CRIMINAL COMMON LAW BUT COMMON LAW IS
STILL RELEVANT TO UNDERSTAND THE STATUTES
(4) In this class, the source of the legality has to come from statutory law, but for
jurisdictions we will still look at common law and model penal code.
2) Common Law vs. Moral Penal Code
a) Model penal code was drafted by looking systematically by looking at the basic elements
of criminal laweach state has their own penal code. The drafters didnt have authority
to make it law. The drafting was contentious because the drafters looked at all the
contradictions the legislatures had made. They hoped that states would say youre right,
we would like to adopt your model penal code as our own. It only becomes law then
legislature says we like this and adopt it. We study it because it is 1) a good attempt and
2) it has become very influential---over 30 states have adopted model penal code to some
extentNY and Penn are the most well known. Even within MPC states, there might be
deviations between the statutes and the MPC that they had adopted. 3) Even in those
jurisdictions that are not MPC jurisdictions, courts will still look to MPC for authority.
b) California is not a MPC state, it is statutory common law jurisdiction. If it not an MPC
state, Dolovich will refer to it as a common law state (CA).
c) Both Common law and MPC are statutory systems.
United States v. Jewell-Willfull blindness does not negate the mens rea requirement of knowledge. D
knew of the secret compartment in car and knew that there was something in there and that it could be
marijuana and still upheld the conviction.

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