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PUNISHMENT
Utilitarian Justification found in its usefulness to society
Punishment should be avoided where groundless i.e. Too much $ or not effective
o Reform: Help offenders want to commit crimes less and be more useful persons in
society
o General Deterrence-Dissuade Community (others)
o Specific Deterrence-Individual Discouragement (defendant)
Incapacitation: while in jail
Intimidation: in the future
Retributivist Justification b/c people DESERVE IT
o Moral Capability
o Society has Duty to Punish
Even if this doesnt deter future crime
INCOHATE CRIMES (ATTEMPT)
Modern retributivist theories "restore an order of fairness which was disrupted by the criminal's
criminal act
"just desert" general theory of getting what one deserves for harm caused does not necessary apply to
incomplete crimes
Need Intent based form of retributivism
society need to impose self-restraint on individuals to provide basic security to person, property and
amenity
"intent principle" people should be held criminally liable for what they intended to do, and not
according to what actually did or did not occur.
Punishment Can Be Independent to Underlying Crime
Reasons for illegality:
1 Need firm legal basis for intervention
1 Set up proper safeguards to deal with such persons inclined toward crime
1 An actor's failure to commit a crime should not absolve one of his/her criminality
Unjust
Attempt
The purpose behind punishing attempt is NOT DETERENCE RATHER it is PROHIBITIVE
provide a basis for law enforcement officers to intervene before an individual can commit a
completed offense

The Presumption of Innocence

Owens v. State drunk driveway
Rule: Conviction upon circumstantial evidence alone does not hold up UNLESS the
circumstances are inconsistent with any reasonable hypothesis of innocence
1.12 Proof Beyond Reasonable Doubt
No person may be convicted of an offense unless:
Each element is proved beyond a reasonable doubt (in absence of evidence: innocence is assumed)
o Except for defenses that the Code expressly requires the defendant to prove
Burden of Production
Prosecution must product enough evidence that a rational juror may reasonably determine that
the elements of the crime have been proved beyond a reasonable doubt
Defense must provide notice of defenses he intends to raise at trial. The amount of evidence
required differs jx to jx. Ranges from scintilla of evidence to enough to raise reasonable doubt
o If not met jury will not be instructed on the issue
Prosecution's Burden of Persuasion
a Proof Beyond a Reasonable Doubt
Due Process Clause of the U.S. Constitution requires the prosecutor to persuade the fact-finder "beyond
a reasonable doubt of every fact necessary to constitute the crime charged (Winship)
Defendants Burden of Persuasion
Mullaney v. Wilbur unlawful burden
Jury instructions read:
Unlawful + intentional = murder or Heat of Passion + intentional = manslaughter
Heat of Passionjustification/excuse element violated Winship Doctrine
IF an ELEMENT of the crime cannot shift burden of proof to the Defendant
Patterson v. New York insanity must be proven
--Defendant raised affirmative defense of extreme emotional disturbance (provided in NY statute)
As a non-element of murder, the state could properly place burden of proof on the D
1.13 Elements of Offense
(i) conduct, (ii) attenuated circumstances, (iii) result of conduct
A. Included in description of forbidden conduct
B. Establishes required kind of culpability
C. Negates an excuse or justification
D. Denies a defense under the statute of limitations
E. Establishes jx or venue
Advantages of Judicial Definitions: Catch creative criminals, judges are qualified
Advantages of Legislative Definitions: Fair notice, Clarity, separation of powers, consistency

LEGALITY Unless an offense is on the books, it is not a crime.

MPC 1.05: No conduct constitutes an offense unless it is a crime or violation under this Code or
another statute of this state.

DUE PROCESS ENTAILS:

1. Fair Warning: All are entitled to be informed as to what the state commands or forbids.
---Reflected in the prohibition of: 1. ex post facto laws and 2. Judicial enlargement of statutes
Keeler v. Superior Ct. baby kicker
--Deciding whether an unborn but viable fetus is a human being w/in CA murder statute
1850 Black letter (not murder ) + code commission ( not murder) + common law (not murder) = not
murder
Argued that times changed with technology and science NOPE = breach of the division of
power
Rule: The Judicial enlargement of the statute would not have been foreseeable to the petitioner
and hence the adoption would deny him due process of law.
o Defining MURDER is the job of the LEGISLATURE
2. Criminal Statutes need to be: UNDERSTANDABLE + REASONABLE to law-abiding persons
a. requirement of definiteness : No Clarity = No Due Process
b. Should not delegate basic policy matters to police officers, judges and juries
LENITY DOCTRINE:
Judicial interpretation of ambiguous statutes should be biased in favor of the accused.
Exceptions: small amounts of ambiguity; violations and infractions (strict liability)
Muscarello v. U.S. gun in glove box
Issue: Is carrying a gun limited to carrying of fire arms on the person? NO
Rule: Must use legislative history and original definition of the word
[carry] applies to person who knowingly possesses and conveys firearms in a vehicle
(including trunk and locked glove box) while the person accompanies
MPC 1.02 (no lenity principle) Rather:
Requires the ambiguities be resolved in a manner that furthers the general purposes of the Code and the
specific provision at issue
MPC 2.05: IF only a violation/infraction (maximum penalty is a fine or civil penalty)
Does NOT need to be treated with leniency Does NOT need to be voluntary.
In Re Banks peeping tom
Issue: Is it unconstitutionally vague?
Is innocent conduct at risk? (so broad a law as to potentially incriminate legitimate activity)
Men of common intelligence must necessarily guess at its meaning and differ in its application
Requirement of DEFINITENESSDue Process

Court may narrow the scope of a statute but not enlarge

Rule: If a statute is susceptible to 2 interpretations (1 constitutional + 1 not) the court must adopt
the constitutional interpretation
ACTUS REUS (physical or external parts of crime)
VOLUNTARY ACT

THAT CAUSES SOCIAL HARM

1. Conduct e.g. drive ; steal; hit

2. Harmful Results e.g. death; damages
3. Attendant Circumstances e.g. at night; near a school; federal property
Voluntary Act- An act must be voluntary to be criminal
implicit element of crimes
INVOLUNTARY ACTS: spasms, seizures, bodily movements while unconscious or asleep
MPC 2.01: A Bodily movement not the product of the effort of determination of the actor, either
conscious or habitual
A. Reflex or convulsion B. Bodily movement during sleep/unconsciousness
2.01 (1) Must be an act "or the omission to perform an act of which he is physically capable.

2.01 (3): Liability...may not be based on an omission unaccompanied by conduct, unless:

(a) the statute states so or (b) a duty to perform the omitted act is otherwise imposed by law.

Martin v. State ass cops

--Cops arrested a drunken man and brought him to a highway in order that he would be breaking the law
and they could charge him
Rule: NOT VOLUNTARY = NOT CRIMINAL (strong tradition)
State v. Utter drunk veteran
--Father kills son while blackout drunk automatic response from wartime
***if state of unconsciousness is voluntarily induced (alcohol/drugs) Defense falls short
Not enough evidence to find the automatic (unconscious) state at time of the crime
Rule: Conditioned response (not voluntarily induced) does negate voluntary act b/c it is
unconscious
Social Harm Wrongful Conduct, Results, or Both + Attendant Circumstances

1. Conduct Elements or Crimesprohibits specific behavior i.e. drunk driving

2. Result ElementsPunished b/c of unwanted outcome i.e. death of person; property damage
3. Combined Result and Conduct ElementsOffenses which contain BOTH i.e. killing
w/explosive
4. Attendant CircumstancesFacts or Conditions that must be present at the time the D
engages in prohibited conduct/causes the prohibited results

OMISSIONS Negative Acts Failure to Act

General Rule: NO LEGAL DUTY TO ACT
Exceptions:
1. Duty based on Relationship
a. Dependence i.e. parent child
b. Interdependence i.e. spouses
2. Duty based on Contractual Obligation i.e. life guard; doctor
3. Duty based on Risk Creation i.e. give drugs/alcohol to minor; car accident
4. Voluntary Assistance must continue if stopping would put victim in worse place then they
would have been IF no assistance was given at all
5. Statutory Dutylawyers must report certain crimes
IF there is DUTY TO ACT also need:
1. NOTICEthe duty/necessity to act is known
2. REASONABLEit does not put the actor in harm
People v. Beardsley morphine mistress
--D was too intoxicated/indifferent to help the woman he was sleeping with on the side
Issue: Did the defendant have a legal duty to act? NO
Rule: Moral Duty to society Legal Duty

MENS REA A Guilty Mind Criminal Intent

Culpabilityearly development broad definition only required general culpable state of mind
ElementalMODERN
Mens Rea: includes a particular mental state set out in the definition of an offense
(morally blameworthy elemental mens rea)
General Rule: AN ACT DOES NOT MAKE ONE GUILTY UNLESS THE INTENT BE CRIMINAL
Regina v. Cunningham stolen gas pipe
--He stole a gas meter//didnt mean to poison a girl
Issue: Were Cunninghams actions also malicious and constitute the crime of felony for malicious
administering of gas to an individual? NO
o WICKEDNESS MALICE (intentionally or knowingly acts in a way foresee
harm/injury)
Rule: Malice requires actual intention to do a particular kind of harm or recklessness as to
whether such harm should occur or not.
Transferred Intent:
Attributes liability to a D who, intending to kill or injure one person accidentally kills or injures another
person instead
Law transfers the Ds state of mind regarding the intended victim to the unintended one
People v. Conley swingin bottles
--face no longer whole such that the injured bodily portion or part no longer served in the same capacity
as before
Issue: Was the evidence sufficient to support a finding of intent to cause permanent disability?
Intent to cause great bodily harm was inferred from:
o WORDSWEAPON USEDFORCE OF BLOWLACK OF WARNING
Knowledge: A person knows or acts knowingly when the result is practically certain to be cause by his
conduct
Rule: Intent can be inferred by the circumstances surrounding a crime
Savings Clause: the repeal of any statute shall not release or extinguish any penalty assessed under the
statute unless the repealing act specifically states it shall
Elemental Approach
1. Identify the mens rea of statute

a. IF NONE still need one (intent, malice, willful purpose)

o MPC: at least reckless// Common law: General Intent
2. Identify the Actus Reus
a. Conduct or Culpable Omission
i. Voluntary act, possession of controlled substance
b. Attendant Circumstance
i. On federal property; victim is police officer or minor
c. Result

Specific Mens Rea Requirements (Common Law)

[A] Intentionally A person intentionally causes the social harm of an offense if:
(1) He wants to cause the social harm; or
(2) He acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.
[B] Knowingly Sometimes, knowledge of a material fact an attendant circumstance is a required
element of an offense.
A person has knowledge of a material fact if he is aware of the fact or he correctly
believes that it exists.
Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the
defendant is said to be guilty of wilful blindness or deliberate ignorance,
i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he
deliberately fails to investigate in order to avoid confirmation of the fact.
o An instruction in this regard is sometimes called an ostrich instruction.
State v. Nations strippin at 16
--Owner of bar (Nations) did not know (WILLFULL BLINDNESS?)
Issue: Did the state reach the higher burden of proving Nation knowingly let someone under age dance
for tips? Held: NO, at most recklessly chose not to learn of the childs age
Rule: To act knowingly one must hold actual knowledge that the attendant circumstance exists
[C] Willfully has been held in different jurisdictions to be synonymous with other terms, e.g.,
intentional, an act done with a bad purpose, an evil motive, or a purpose to disobey the law.
[D] Malice A person acts with malice if he intentionally or recklessly causes the social harm
prohibited by the offense.
[E] Recklessness A finding of recklessness requires proof that the defendant disregarded a
substantial and unjustifiable risk of which he was aware.
[F] Negligence Criminal negligence ordinarily requires a showing of a gross deviation from the
standard of reasonable care.
A person is criminally negligent if he takes a substantial, unjustifiable risk of causing the
social harm that constitutes the offense charged.
Three factors come into play when determining whether a reasonable person would have acted as the
defendant did:
(1) Gravity of harm that foreseeably would result from the defendants conduct;
(2) Probability of such harm occurring; and

(3) Burden to the defendant of desisting from the risky conduct

[G] Distinction Between Negligence and Recklessness the deviation is gross in both cases
Criminal negligence involves an objective standard the defendant, as a reasonable person, should
have been aware of the substantial and unjustifiable risk he was taking);
Recklessness implicates subjective fault, in that the defendant was in fact aware of the substantial and
unjustifiable risk he was taking but disregarded the risk.

Generally Specific Intent offenses include in the definition a requisite for:

(1) A special motive for the conduct
OR
e.g., breaking and entering of the dwelling of another in the nighttime with intent to commit a
felony
(2) Awareness of a statutory attendant circumstance,
e.g. receiving stolen property with knowledge that it is stolen.
2.02 (7) Requirement of Knowledge Satisfied by High Probability
**unless he actually believes that it does not exist
**ConjunctiveBoth NEED to be present
**DisjunctiveALTERNTIVE elements
General Intent (common law): No particular mental state is set out in the definition of the crime
Prosecutor only need to prove the actus reus of the offense was performed with a morally
blameworthy state of mind
Ignorance of Law: Only a defense IF it is an element of the statute/crime [2.02 (9)]
Specific Intent (common law):
Offenses in which a mental state is expressly set out in the definition of the crime
Special mental state above and beyond the mental state required with respect to actus reus of
crime
Examples of Specific Intent: possession of weed [w/ intent to sell]; offensive contact with another
[intent to cause humiliation]; intentional sale of obscene literature [to a person under the age of 18]
Intent: Purpose or Substantial Certainty
Not only what the actor want to occur but what the actor knows is VIRTUALLY CERTAIN to occur
from his conduct even if it is not a desired consequence
MALICE
Actor INTENTIONALLY or RECKLESSLY causes the social harm prohibited in by the offense

MENS REAMPC APPROACH 2.02

2.2 (1) culpability required
2.02(2)
(a) Purposefully:
Actors CONSCIOUS OBJECT or REASON for performing an action or what the actor wanted to
accomplish through the act
(b) Knowingly:
Actor is AWARE of the prohibited result which is certain to follow from the conduct
(c) Recklessly
Actor CONSCIOUSLY CREATES RISK which is SUBSTANTIAL AND UNJUSTIFIABLE
SUBJECTIVE TEST-actor must be aware of the substantial and unjustifiable risk he is creating
GROSS DEVIATION from a reasonable law abiding citizen
**surgeon creates risk for a purpose (justified risk)
(d) Negligently
Actor UNKNOWINGLY creates SUBSTANTIAL AND UNJUSTIFIABLE risk causing the social
harm that constitutes the offense
OBJECTIVE TEST
GROSS DEVIATION from the STANDARD of REASONABLE CARE
Factors:
1. GRAVITY of harm foreseeable from Ds conduct
2. PROBABILITY of such harm occurring
3. BURDEN to D to ABSTAIN from risky conduct
2.02(3) AT LEAST RECKLESS (if no mens listed in offense)
2.02(4) EVERY MATERIAL ELEMENT requires culpability (including affirmative defenses)
2.02(5) GREATER includes the LESSOR i.e. reckless includes negligent
2.02(7) Requirement of KNOWLEDGE satisfied by knowledge of HIGH PROBABILITY
2.02(8) Requirement of WILFULNESS satisfied by acting KNOWINGLY
2.02(9) IGNORANCE only a defense IF defined in OFFENSE
2.02(10) DEGREE of an offense depends is based on the LOWEST mens rea established with
respect to ANY MATERIAL ELEMENT of the offense.

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MATERIAL ELEMENTS: CONDUCT RESULTS ATTENDANT CIRCUMSTANCES

--listed in criminal offense
***except those that relate exclusively to: statutes of limitation jx venue any other matter similarly
unconnected with:
i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or
ii) the existence of a justification or excuse for such conduct.

Principles of Statutory Interpretation A single mens rea term of whatever specific type
modifies each actus reus element of the offense, absent a plainly contrary purpose of the legislature.
FloresFigueroa v. United States Immigrant Identity Theft
--used fake//someone elses SS # to obtain employment
Issue: Is an individual who used a false means of if w/out knowledge it belongs to another person guilty
of aggravated identity theft?
Argue no hypothesis of innocence (fails)
Should not interpret a statute in a way that makes some of its language unnecessary/superfluous
Rule: Must prove that a D KNOWINGLY used an id that belonged to another person
must prove the specific mens rea for each material element
STRICT LIABILITY: (exception to mens rea principle)
1. public-welfare offenses (most common) 2. MINOR VIOLATIONS
when the punishment far outweighs the social order as a purpose of the law in question
If the penalty is light, involving a relatively small fine and NOT including jail time then
mens rea probably is not required
It does not matter if DUE CARE of a REASONABLE PERSON is taken STILL GUILTY
i.e. impure food or drugs; anti-pollution laws; statutory rape
besides doing nothing at all (even w/due care) CANNOT AVOID
EXAMPLE: Selling alcohol to minors reasonable person could complete every element of crime
***Selling cocaine to minorsNO strict liability b/c reasonable persons dont sell cocaine
Staples v. United States automatic weapons
--the State argued that absolving mens rea fits within public welfare or regulatory offense
(keep dangerous guns off the streets)
--Staples response: It is unreasonable to put a law-abiding, well-intentioned person in jail for 10 yrs for
possessing something he didnt know was illegal (even if a gun)
Rule: Court needs to consider severity of penalty when determining if Congress intended to
eliminate mens rea even w/a sound public policy argument

MISTAKE OF FACT

**If strict liability MOF irrelevant (no mens rea to negate)

Common Law
Specific Intent- Honestly and [Subjective Test] reasonable
A D is NOT guilty if his MOF negates the portion of crime designated w/a specific mens rea
General Intent- [Objective Test] Was the MOF reasonable?

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Moral Wrong Doctrine: GUILTY IF what you thought you were doing is morally wrong
Legally Wrong: GUILTY (*of the higher offense) IF what you thought you were doing was still illegal
MPC Mistake of FACT 2.04(2)
MOF always a defense but depends on mens rea (negligent, recklessly, knowingly, purposely)
Modified Legal-Wrong Doctrine: Only guilty of the lesser offense you thought you were doing
People v. Navarro Navarros reasonable larceny
--the Jury was given inappropriate instructions:
good faith AND reasonable // compared to // good faith DESPITE unreasonable
Specific Intent SUBJECTIVE TEST
Rule: IF a person has good faith belief that he has a right to certain property NOT GUILTY,
EVEN IF UNREASONABLE
Garnett v. State Garr! Net, 13 yr old captured by 20 yr old = baby
--Mentally handicapped 20 year old, knocked up 13 yr old
No requirement of mens rea b/c STRICT LIABILITY
o Legislative Design
o Public Policy
PROTECT from: sexual exploitation; loss of chastity; pregnancy (for girls)
Rule: Must convict unless ***exception was written in statute for MENTAL RETARDATION
JOB of the LEGISLATURE// not guilty verdict would be a breach of the division of power

Mistake of Law 2.04 & Common Law

person MUST act in reasonable reliance upon an official statement of the law, afterwards
determined to be invalid or erroneous obtained from:
(i)
A statute of other enactment (later declared to be invalid)
(ii)
A judicial decision, opinion, or judgment
***of the highest court in the jx later determined to be erroneous
(iii)
A public officer or body charged by law with responsibility for the interpretation
administration or enforcement of the law defining the offense
i.e. the attorney general
***Even if a person obtains an interpretation from a proper source is must also come in an
official manner not offhand or informal
People v. Marrero .38 caliber Mistake of Law
Federal (not state) Prison guard arrested with unlicensed gun
His reasonable interpretation of the law was NOT a DEFENSE
Strong public policy reasons for rejecting the defense
o Flood gate argument
His interpretation was not based on an official statement of the law
Rule: Holding a reasonable interpretation of the law is not a defense
EVEN if subjectively and objectively reasonable & a reasonable law trained person would have
similarly misunderstood the law
Exception: strictly official interpretations of the law
CANNOT RELY ON:

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Advise of Private Counsel (or prosecutor)

Advise of Ones Own Interpretation of the Law

When Ignorance or Mistake of Law Negates Mens Rea

***IF Strict liability MOL irrelevant (no mens rea to negate)
General Intent: NO (even if objectively reasonable)
Specific Intent: YES (whether reasonable or unreasonable IF the honest mistake negates the specific
intent in the prosecuted offense)
Cheek v. United States willful tax evasion (EXCEPTION TO GENERAL RULE)
Supreme Court overturns ruling where jury instruction required honest and reasonable
Issue: was he aware of the legal duty at issue // voluntarily & intentionally violate it?
Rule: A claim made in good faith does not necessarily need to be objectively reasonable to
negate the element of willfulness
Tax law sometimes makes it difficult for the average citizen to know his/her duties
MPC 2.04 (1) MOL
A mistake or ignorance of the law is a defense if it negates a material element of the offense.
Lambert Principle Fair Notice
Convicted felon, failed to register with the city of LA as the strict liability ordinance required
He was unaware of that duty
Supreme Court Held:
Passive Nature of the OffenceOMISSION
Innocent behavior based on status no foundation in active offense
malum prohibitum offense is wrong only because a statute makes it so
Therefore: NOTHING to ALERT a reasonable person to the need to inquire into the law
***requires both: a lack of actual knowledge and a lack of a reason to know
Ex. A pharmacist has a reason to know b/c its a regulated industry NO Lambert defense
MPC 2.04(3)(a) Fair Notice Exception
Applies when:
1. A D does not believe that his conduct is illegal AND
2. The statute defining the offense is not known to him AND was not published or otherwise
reasonably made available to him before he violated the law

Causation (Actual or Proximate)

1 of 3 components of Actus Reus
(1) voluntary act (2) that causes (3) social harm
implicit element of all crimes

Actual Cause (or Cause-in-Fact) Common Law

But-for Test: (MPC 2.03) Actual cause resulting in harm BUT FOR the Ds conduct would
NOT have happened WHEN IT DID AND AS IT DID

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Exclusive Test of the MPC: Used to determine if the required level of culpability is met Mens
Rea in the definition of the crime (purpose, knowledge, reckless, or negligent)
o Did the divergences make the Ds causation too remote or accidental in its occurrence or in the
rare case of no mens rea the actual result is not a probable consequence of the Ds conduct
Multiple Actual Causes: When injury or death is the result of two different sources, multiple
wrongdoers can be found culpable if cause-in-fact
o not necessary it be sole and exclusive
Acceleration Result: Even if outcome is inevitable, IF D accelerated death he can be found liable
Oxendine v. State 6 yr old dead
Girlfriend pushed kid in tub tearing his intestines
o Issue: Did the D accelerate the death when he beat the kid severely?
POSSIBLE EVDIENCE // could not be proven beyond a reasonable doubt
Rule: contribution to or aggravation of death without acceleration of death is insufficient to
establish the causation of death to convict of manslaughter (assault in 2nd degree)
Valazquez v. State Death by Drag Race
o Victim died after drag race, he was drunk, driving more recklessly and his brakes failed him
Rule: IF the Ds action did not cause the injury or death when it did AND how it did the court may
decline to impose criminal liability if the result:
(1) Goes beyond the scope of the danger that the D created
(2) Would be unjust and against public policy to hold the D criminal liable
o Ds conduct may have been a Substantial Factor but Failed the But-For Test
Obstructed Cause: If a D commits a voluntary act intending to cause harm i.e. shooting someone but
someone else commits a more serious injury killing the victim sooner, the initial wrongdoer may only
be convicted of attempt to kill

Proximate Cause (Common Law)

***A direct cause of social harm is also a proximate cause of it
Intervening Causes: An Independent Force that causes social harm that comes into play after the Ds
voluntary act or omission.
o Superseding Cause: when the court decides that the intervening causes should
relieve the D of liability (FORESEEABLE & NATURAL CONSEQUENCE)
Foreseeability of the Intervening Cause: was the intervening cause responsive (or dependent) on the
Ds action or coincidental (or independent) intervening causes.
o Responsive intervening causes: Do not relief the D of liability
o Coincidental intervening causes: Relieve the D of liability
People v. Rideout Driving while Duke
Held: the death of the passenger was not a direct and natural result of the drunk driving
o Victim put themselves in further harm (when they went back into the road)
Rule: A superseding cause (Not Responsive or Foreseeable) relieves the D of liability

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Apparent Safety Doctrine: IF a victim has an option to reach safety but instead puts herself in further
harm, which causes the injury of death (the original D who caused the danger may not be liable)
Free, Deliberate, Informed Human Intervention (contributory negligence doctrine/intended
consequence doctrine): A D may be relieved of criminal responsibility if the victim contributed to the
injury or death by a decision that they made free from duress.
***Omissions: Rarely, if ever, serve as a superseding intervening cause
State v. Rose Hit and Drag
D hit the victim then drove away with the body wedged under his car
Two Plausible Theories of Death:
(1) on impact (non-negligent) (2) fleeing the crime w/the body under the car (negligent)
Rule: CANNOT find a D guilty of manslaughter if there is a plausible theory of innocence
o time of death could not be determined by the medical examiner
o the culpable conduct needs to be proved beyond a reasonable doubt
Assault w/ deadly weapon possession of a deadly weapon or just assault ABOUT NOTICE

HOMICIDE
Murder (common law): The killing of a human being with malice aforethought
Malice:
A person kills another with the requisite malice when he possesses one of these states of mind:
1. The intention to kill a human being (depends on the JX)
a. Willful, Premeditated, Deliberate 1st Degree
b. Not Premeditated 2nd Degree
State v. Gunthrie Dishwasher Stabbing
D suffered from mental illness // had a panic attack when he stabbed a co-worker
o Jury instructions joined intent to kill with willful, deliberate & premeditated
Reversed b/c this failed to distinguish between 1st & 2nd Degree murder
1st degree murder required instructions that the D be fully conscious of what he intended
2. The intention to inflict grievous bodily injury on another
2nd Degree
Midgett v. State Attempt to beat the shit out of, NOT kill
Child abuse BUT NOT evidence he had premeditated and deliberately killed the child
Rule: No matter how heinous the facts may be there must be premeditation for 1st degree murder
o Reduced to 2nd degree murder
3. An extremely reckless disregard for the value of human life (Depraved Heart Murder)
2nd Degree
4. The intention to commit a felony during the commission or attempted commission of which
a death results
a. Felony Murder 1st Degree (no death penalty/25 years to life? CA)
b. Second Degree Felony Murder 2nd Degree

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MPC 210.0(1) Criminal Homicide

A person is guilty of criminal homicide under the MPC if he unjustifiably and inexcusably takes
the life of another human being: purposely, knowingly, recklessly, or negligently
1. Murder
2. Manslaughter
3. Negligent Homicide (not in common law)
***MPC rejects the degrees of murder
Manslaughter: unlawful killing of a human by another without malice aforethought
(1) Heat of Passionan intentional killing committed in sudden heat of passion as the result of
adequate provocation
(2) Involuntary manslaughteran unintentional killing resulting from the commission of a
lawful act done in an unlawful manner i.e. GROSS NEGLIGENCE
a. MPC 210.4 Negligent Homicide (includes criminal negligence)
(3) Misdemeanor-manslaughteran unintentional killing that occurs during the commission or
attempted commission of an unlawful act which is not a felony(misdemeanor felony murder)
a. Transferred criminal intent from misdemeanor putting one at fault for the death
MPC 6.06(2) no form of misdemeanor-manslaughter in the MPC

Heat of Passion What constitutes adequate provocation?

1. Adequate Provocation
there must have been factually and legally adequate [or reasonable] provocation
decided by the jury by an objective reasonable-person standard
1.
As a Result of the Heat of Passion
Killing must have been during the Heat Of Passion
i.e. the D was actually provoked and killed as a result of the provokation
1 Sudden HOP /Cooling off time
It must have been a sudden Heat of Passion
D did not have a reasonable opportunity to cool off
i.e. the killing must have followed close on the heels of the provocations
2 Casual Connection
there must be a causal link between the provocation, the passion and the homicide
Girourd v. State Words Alone NOT adequate provocation for Heat of Passion defense
Issue: What is sufficient to provoke murder to justify a conviction of manslaughter rather than one of
second degree murder?
Threats of violence are NOT MERE WORDS
Seeing in the act is different from hearing something is happening
o Visceral experience (invoke passion, immediate, clear connection)
o Certainty
***words alone may suffice in MPC
Classic Categories of Heat of Passion:
Homosexual advance, Mutual Combat, Unlawful Arrest by Police, Adultery
Modern Common Law Trend (more flexible)

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1. D's passion [loss of self-control] must be "reasonable" given the provocation:

this is fully subjective so it can be ignored
2. Adequate Provocationsuch as to cause a reasonable/objective person to lose self-control and act
violently out of passion rather than reason
Attorney General for Jersey v. Holley Wife Provokes an Axe to the Face
Issue: Jury must decide whether the provocation was enough to make a reasonable man do as he did
1. Subjective (Factual) Issue Was the D provoked into loosing self-control
All mental or other abnormalities admissible for consideration
Subjective Gravity of Provocation
2. Objective (Evaluative) Issue How should the circumstances effect a Reasonable Man
External Standard of Self-Control
1. According to Age and Gender (same standard for ALL)
2. Abnormalities NOT relevant i.e. Alcoholism (standard does not vary)
BUT how would a reasonable person react to being taunted due to their particular abnormality?
How to assess the level of self-control to be expected of the reasonable/objective person:

Clearly factual circumstances count

Temperament not counted

What about physical, cultural traits/characteristics?

o
Age and sex-->YES
People v. Casassa Particular Psychopath = MURDER
Issue: whether the D established the affirmative defense of extreme emotional disturbance
Held: NO, he may have been suffering from an extreme emotional disturbance but it is not
objectively reasonable for someone in his position to act as he did
Killing a girl b/c she didnt love him is an insane thought process

MPC 210.3(1) (a)+(b) Manslaughter -- Provocation Defense

(a) Recklessly killing another
(b) Killing another person under circumstances that would ordinarily constitute murder, but
which the homicide is committed
while the D was suffering from an extreme mental or emotional disturbance for which there is
reasonable explanation or excuse
Reasonableness of excuse to be determined:
a From the viewpoint of a person in the situation
b Under the circumstance as he believed them to be
Extreme Mental or Emotional Disturbance
a Did it exist or not factual (Subjective Element)
a Was there a reasonable explanation or excuse evaluate (Objective Element)
Sudden Heat of Passion (in an expanded form) & partial responsibility (diminished capacity)
Common Law

MPC

17

Mere words don't count

Words alone may warrant a

manslaughter instruction

Informational words equivalent to a

threat maybe

Specific provocation act is not

required to trigger the EMED

Must be immediate-- no cool off period

No rigid cool-off rule

(slow burn is okay)

Victim must be the provoker or

someone accidently killed in trying to
injure the provoker

victim may be a 3rd party

Jury or Judge has to put themselves in the D's position

They decide which of the D's characteristics to include as part of "the actors in the situation"

Spectrum
Yes--personal handicaps, child molestation, PTSD, extreme grief
Maybe--special sensitivity, developed sense of honor, out-of-wedlock person being called bastard
NO--Idiosyncratic moral values e.g. it is right to kill one's political opponents

Unintentional Killings: Unjustified RiskTaking

Abandoned and Malignant/Depraved Heart 2nd Degree Murder (Implied Malice)
1 Natural consequence of act dangerous to life
2 Act was deliberately performed, knowing that his conduct endangers life AND
3 Conscious disregard for life
OR
1 Base anti-social motive
1 Wanton disregard for life AND
1 High probability it will result in Death
MPC 210.2
Recklessness under circumstances manifesting extreme indifference to the value of human life
Presumed in: robbery, rape, arson etc.
People v. Knoller War Dog! Bringer of Death, Ruin and Destruction
dog viscously killed woman in SF apartment as prey after 30 incidents of being out of control
Issue: When does risk-taking that results in death constitute murder rather than manslaughter?
Common Law distinguished according to Mens Rea
Based on the circumstances there was no way a reasonable person could be unaware that the
conduct involved a high probability of death or great bodily harm
Objective test of whether D acted w/a conscious disregard for human life

Involuntary manslaughter (gross negligence)

State v. Hernandez Reality is for those who cant stay drunk!
the trial court improperly admitted drinking slogans that were on the D car

18

The State attempted to use bad character evidence to show recklessness (he knew alcohol affected
perception of reality) which would encompass negligence
Does NOT have bearing on whether he KNEW there was a substantial risk of death in THIS
PARTICULAR INSTANCE, character evidence does not go to prove an issue or material fact
relevant in the case.
Character Evidence: only admissible if the D put his own reputation in issue
Although relevant, may be excluded if it may create unfair prejudice, confusion of the issues or
mislead the jury (predisposition to know: past conduct not present conduct)
Elements for Guilt:
Substantial and unjustifiable risk (objective) i.e. driving drunk
Knowledge of facts giving rise to the risk (subjective) i.e. knew he drank 12 beers
Failure to perceive the risk (subjective) i.e. unaware of risk of killing someone
State v. Williams Duty to Bring Child to Doctor Tooth acheinfectionPneumonia
Husband & Wife charged with manslaughter after negligently failing to bring medical attention to child
Didnt take the 17-month old child to doctor for fear of Welfare Dept. taking the child
Causation: Negligence was the proximate cause of death
Omission: Natural Duty formed by relationship dependent minor child
Ordinarily need gross negligence but under Statute
merely ordinary negligence (lack of due care)
Homicide is excusable when committed by accident or misfortune in doing any lawful act by
lawful means, with ordinary caution and without any unlawful intent

Felony Murder (felony + killing = murder)

Common Law: a person is guilty of murder if a death occurs during the commission or attempted
commission of any felony.
Four main categories for arguments supporting the doctrine: Deterrence (tough argument);
Transferred Intentreplacing malice or intent with a felony; Retribution; General Culpability
Felony Murder under MPC 210.2(1)(b): Extreme recklessness is presumed if the homicide occurs
while the D is engaged in, or is an accomplice in, the commission, attempted commission, or flight from
the dangerous felonies specified in the statute.
Felony Murder by Statute: Under most modern statutes, a death that occurs during the commission
of an enumerated felony (usually arson, rape, robbery or burglary) constitutes first-degree murder for
which the maximum penalty is death of life imprisonment
authorizes strict liability for a death that results in the same continuous transaction as a felony
o If not an enumerated felony, it is 2nd degree murder
People v. Fuller High Speed Auto Chase after burglary Resulting Death = 1st Degree Murder
D argued that an automobile burglary is not dangerous to human life
Burglary is expressly listed as an enumerated felony within the 1st degree felony-murder rule
CA Penal Code 189 holds strict liability for all murder perpetrated while committing or
attempting to commit: arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking
***under MPC decided if committed w/extreme recklessness by the jury (no strict liability)

19

***2nd Degree Felony Murder is accused of being created by the CA courts

Basis found in Abandoned Malignant Heart Murder
Judge made doctrine (outside of the separation of powers since this was NOT the legislatures intent)
People v. Howard High Speed Auto Chase after theft Resulting Death 2nd Degree Felony Murder
The 2nd degree felony-murder rules constitutionality has been questioned, so it makes sense not to
extend the rule beyond its required application.
This particular crime only requires that a D drive with a willful or wanton disregard for the
safety of persons or property
The crime committed would have been violated by breaking 3 traffic rules w/point penalties
Most of these traffic rules are not inherently dangerous (i.e. driving unregistered vehicle)
Supreme Court REVERSED b/c it is possible that this offense can be committed w/out creating a
substantial risk that someone will be killed
o D can still be charged with murder the prosecution is only barred from transferring the burden of
proving malice to the felony murder rule
Abstract Test (Only for 2nd Degree Felony Murder Rule):
IF it is possible to do something without the risk of death, 2nd degree felony murder is inapplicable.
For a particular crime to satisfy the malice requirement of murder, the crime must have
a high probability of resulting in death in every circumstance
o The facts of the case (even if more heinous) cannot be used to establish the crime itself as
inherently dangerous
o Crime must be labeled inherently dangerous in abstract

Modern Limitations of Felony Murder:

1
1
1
1

Limitations on the types of felonies

a Inherently Dangerous Felony (e.g. armed robbery)
b Independent Purpose
Limitations on the types of conduct
a During
b In furtherance
Limitations on identity of the killer
a Agency theory (general rule)----------------------------------->Proximate Cause (rareCA)
Limitations on identity of the victim

Merger Limitation (Independent felony) That is, the felony-murder rule only applies if the predicate
felony is independent of, or collateral to, the homicide.
If the felony is NOT independent, then the felony MERGES with the homicide and cannot
serve as the basis for a felony-murder conviction.
i.e. most jxs hold that felonious assault may not serve as the basis for felony-murder.
Compare to Robbery or Rape which CAN be the underlying predicate for Felony Murder b/c
there is another motive for the crime (felonious purpose)
also inapplicable in jx with enumerated felonies
People v. Smith Beating Your Child to DEATH is ILLOGICAL but so is FELONY MURDER
Held: it would be wholly illogical to allow this kind of assaultive child abuse to be bootstrapped
into felony murder merely b/c the victim was a child rather than an adult

20

It would be impossible for felony murder in this circumstance to result in deterrence ---would
have extended "beyond any rational function that it is designed to serve."
Rule --the felony murder rule is not applicable when the felony is a part of the homicide AND the
underlying felony had its principle purpose in assault of the victim
Merger Applicability (discussion in People v. Smith)
People v. Wilson--Burglary/ Assault --not a predicate for Felony Murder
Held: Felony murder rule cannot apply to burglary-murder cases in which the entry would be nonfelonious but for the intent to commit the assault and the assault is an integral part of the homicide.
People v. Sears-- Burglary/ Accident (in some jx it can be a predicate--in this case NO)
Held: It would be illogical to put someone in a worse place who intended to kill 1 person and
accidentally killed in the heat of passion than someone who intended to assault 2 people
State v. Sophophone We dont mind if criminals die only innocent by-standers or police
D appealed a felony murder conviction predicated on the death of his co-felon
Rule: A D cannot be guilty of felony murder for the death of his co-felon caused by a 3rd party
non-felon i.e. by a police officer while attempting to escape
Killing by 3rd Party Non-Felon
Agency (majority approach): If any one of the co-felons killed then EVERYONE IS LIABLE
Generally precludes any killing committed by a person other than the D or his accomplices
Proximate Causation (minority approachCA): Was death the fault of felon?
Don't care who is who. Felon is liable for any death proximately resulting from the felony,
whether the killer is a felon or a 3rd party

General Defenses to Crimes

Failure of Proof Defense (burden of proof)
prosecution does not have evidence of every element of the crime
Special Defenses Offense Modification
(Statutory construction defenses-- we interpret this in a certain way to limit who it applies to)
--"real defense" in that they apply even where all elements of the offense are satisfied
o While the actor has apparently satisfied all the elements of the offense charged, he has not in fact
caused the harm or evil sought to be prevented by the statute defining the offense
i.e. victim is not an accomplice; paying a kidnapper; a minor is not liable for porno offense
Justification (ends justify means focus on D's act)
Circumstances that justifies the harm in reference to avoid an even greater harm or to further a greater
societal interest
i.e. self-defense; defense of others; defense of property & home; use of lawful force (police); necessity
(burning a field to prevent a forest fire)
1
1

It must be necessary to protect or further the interest at stake and

It must cause only a harm that is proportional or reasonable in relation to the harm
threatened or the interest to be furthered

"harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest"

21

Excuses (ends are not justified focus on the actor, not her act)
Excuse the actor b/c conditions exist that the actor is not responsible for his deed
I.e. mental illness; duress; mistake of fact; intoxication + MOL (rare circumstances)
"excuses admit that the deed may be wrong, but excuse the actor because conditions suggest that the
actor is not responsible for the deed"
Extrinsic Defenses Non-exculpatory & Public Policy Defenses
Based on factors unrelated to the defendants actions or state of mind at the time of commission
Statute of limitations; diplomatic immunity; entrapment; incompetency to stand trial
________________________________________________________________________________
Burden of Production (some evidence, scintilla) i.e. D needs to prove an affirmative defense
Need to put in pleading the Defense at Issue prosecution knows which defenses to argue against
Burden of Persuasion (clear and convincing; proof to a preponderance)
Anywhere between requirement the Defendant prove the defense or the prosecution has the burden of
proof Procedural Question
Constitutional Limits (Winship Doctrine)
If you make something an element of a crime disproving it cannot be a defense
Affirmative Defense (burden of production on the D) MPC 1.12 (2)(a)
State does not have to disprove affirmative defense unless and until there is evidence supporting it
MPC 1.13(9)(c) Burden of Persuasion on State: Element = must disprove the defense

SELF-DEFENSE
available to a non-aggressor who hold a honest and reasonable belief that
force is necessary to protect himself from imminent use of unlawful force
***must be proportional force (not permitted to use deadly force to repel non-deadly attack)
Common Law StandardReasonable Person in the Ds Situation
Privilege of self-defense is based on reasonable appearance, rather than an objective
reality. (Objectively evaluated from the eyes of the D)
Relevant Factors: (*cannot use race)
1.
2.
3.
4.

The physical movement of the potential assailant

Any relevant knowledge the D has about that person
The physical attributes of all persons involved, including the D
Any prior experiences which could provide a reasonable basis for the belief that the use of
deadly force was necessary under the circumstances

People v. Goetz Subway vigilante

Youth asked for $5 D shot and wounded 4 youths
He reasonable believes

22

1. The person is using or about to use deadly force

2. The person is committing or attempting to commit a kidnapping, forcible rape or robbery
Rule must apply an objective test of reasonableness (set out by NYs statute // changed the MPC)
Criminal records of the decedent are relevant to the extent that the D knew at the time of
the event (dependent on JX)
State v. Wanrow Known Child Molester
the decedent was at the house of the children he molested, to be arrested on Monday & Drunk
Rule: The reasonableness of a persons actions in self-defense must be considered in the light of
her own perceptions of the situation.
given the circumstances it is reasonable for the D to be startled and use reflect reaction
Common LawNEEDS TO BE RIGHT NOW (no defense for what you think may happen)
MPCWhat you believe to be practically CERTAIN Future Event is enough for defense

Immediate and Necessary

MPC 3.04(1) [WHOLLY SUBJECTIVE -- NO Reasonable Person Test]
The use of force upon or toward another person is justifiable when the actor believes 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
sets out specific situations in which deadly force is justifiable
(1) Death
(2) Serious Bodily Injury
(3) Forcible rape; or
(4) Kidnapping

LOOSING SELF DEFENSE

You loose the right to self-defense if
1 You don't have a legal duty to it i.e. you stole a TV and someone tells you to drop it
2 You know you will not be hurt by doing what they say
MPC 3.11(2)
A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, does not
constitute deadly forceso long as the actor's purpose is limited to creating an apprehension that
he will use deadly force if necessary

Retreat Rule (Common Law)

If a person can safely retreat and, therefore avoid killing the aggressor, deadly force is
unnecessary.
Depends on the JX
Majority: D must retreat if they believe they can do so in complete safety
General Exception: In ones HOME or within its curtilage (land immediately surrounding)
Minority: D must retreat if possible
United States v. Peterson Castle Doctrine: This is my house, I dont need to retreat
Judge used jury instructions that
1. Factored in Peterson being the aggressor in the alteration
2. Petersons failure to safely attempt to retreat

23

Conviction UpheldChin believes this is wrong. It was overturned by later cases.

MPC One may not use deadly force against an aggressor if he knows that he can avoid doing so
with complete safety by retreating

Aggressor Rule
If the D was the initial aggressor, they must retreat to regain the right of self-defense
MPC 3. 3.04(2)(b)(i) Prohibits the defense to be used if the deadly force was provoked
"the actor, with the purpose of causing death or serious bodily injury provoked the use of force against
himself in the same encounter."

Imperfect Self-Defense
Traditional Common Law: If any element necessary to prove self-defense is missing, the
defense is unavailable to the D
Imperfect Defense allows the D to claim self-defense even if they fail to satisfy the
reasonable component as long as they had a genuinely honest belief
MPC 3.09(2) Imperfect Defense (for purposeful or knowing mens rea its a complete defense)
1 Honest but unreasonable - complete defense
IF recklessness or negligence suffices to establish culpability then still guilty of negligent manslaughter
a If unreasonable But Honest and reckless --can be convicted of reckless crimes
Non-deadly aggressor - complete defense (unless intended to provoke-but that could be words alone)
a If not done for the purpose of eliciting response of violence you retain your defense

Risk to Innocent Bystanders (common law): If the D is acting justifiably in self-defense against an
aggressor, fires a weapon wildly or carelessly they may be charged with reckless endangerment and be
guilty of manslaughter MPC Negligent Homicide
NRA
1
2
3
4

(national rifle association) Legal Effort

Carry Concealed Weapon
No retreat anywhere
Presumptive defense in certain circumstances
Prosecution must disprove self defense beyond a reasonable doubt

Battered Woman Syndrome

Confrontational Homicide: If a battered women kills her partner during the incident, self-defense is
almost always an available defense
Non-confrontational Homicide: Where the battered woman kills her abuser while he is asleep or
during a significant lull in the violence. Courts are divided on whether self-defense may be claimed
Majority of JX say that homicide under such circumstances is unjustified
State v. Norman Make me a sandwich! BRUTAL ABUSE
Court held that even when a pattern of grievous bodily harm is established if the victim was
passive at the time of the killing, the D is precluded from asserting self-defense.
D was sleepingdeath was not imminent
Court wants to encourage other methods to avoid abuse

24

Defense of Others
Generally a person is justified in using force to protect a 3rd party form unlawful use
of force by an aggressor to the extent that the 3rd party is justified in self-defense
Majority view: IF it appears necessary for the protection of the 3rd party
MPC 3.05 force is justified by an intervenor to protect a 3rd party if:
1. He uses no more force to protect the 3rd party than he would be entitled to use in
self-protection, based on the circumstance as he believes them to be
2. Under the circumstances as he believes them to be, the 3rd party would be justified
in using force in self-defense
3. He believes that the intervention is necessary for the 3rd parts protection
***retreat rules are applicable
Threat to Use Deadly Force: Generally may threaten deadly force to prevent illegal
activity, and will not loose the privilege of self-defense
MPC 3.06 --consistent with California Law
You can use deadly force if it is immediately necessary to use force to prevent a trespass if the
property is or is believed by the actor to be in his possession or in the possession of another person
for whose protection he acts
***Even if you know someone is under Duress, IF you have the legal right to use deadly force
you retain that right.

NECESSITY
Defense legitimizes technically illegal conduct that common sense, principles of
justice, and/or utilitarian concerns suggest is justifiable, but which is not specifically
addressed by any other recognized justification defense
Nelson v. State D Stole a Dump Truck to get his car out of the mud 10Gs of damage
D failed to use legal adequate alternatives such as calling police or a tow truck
Did NOT Prevent immediate, significant evil
Harm caused was MORE serious than foreseeable harm

Rule of Law: To invoke the defense of necessity, the crime committed must have been
done (i) to prevent a significant evil; (ii) there was no legal alternative and (iii) the harm
caused was not disproportionate to the harm avoided.
General Requirements:

1. The D must be faced with clear and imminent danger (necessary to avoid evil)
2. Direct causal relationship between the action and the harm to be averted
3. No effective legal way to avert the harm

25

4. Harm that the D will cause by violating the law must be less serious than the
harm that was reasonably foreseeable at the time, rather than the harm
actually occurred
a. To be determined at trial HONEST + REASONABLE belief
5. No legislative intent to penalize such conduct under the specific circumstances
6. The D must come to the situation with clean hands
i.e. cannot have wrongfully put himself in the situation, forcing him to
commit the crime (will be charged with underlying reckless or negligent
behavior)
MPC 3.02(1) (broader than common law) Necessity Justified IF:
1. The D believes that his conduct is necessary to avoid harm to himself or another
2. The harm to be avoided by his conduct is greater than that sought to be avoided by
the law prohibiting his conduct AND
3. There is no legislative intent to exclude the conduct in such circumstances

DURESS
A person may be acquitted of any offense except murder if the criminal act was
committed under the following circumstances:
1. Immediate threat of death or serious bodily injury
2. A well-grounded fear that the threat will be carried out present, imminent
and impending
3. No reasonable opportunity to escape the threatened harm
4. D was not at fault in exposing himself to the threat (Chin questions)
United States v. Contento-Pachon Forced to Smuggle Cocaine to Protect Family
Done to protect family (duress) not for greater good (necessity)
D did not have free will in the situation (danger, well-grounded fear, no opportunity to escape)
***Generally Duress is NOT a defense to an intentional killing
MPC 2.09 (Broader than Common Law)
Duress is an affirmative defense to unlawful conduct by the D IF:
1. He was compelled to commit the offense by the use, or threatened use of unlawful force by the
coercer upon his or another person
2. A person of reasonable firmness in his situation would have been unable to resist coercion

26

Exceptions: If the D recklessly placed himself in the situation in which it was probable that he would be
subjected to coercion.
Abandons common laws requirement of immediateness and allows the defense for murder
Similar to common law in limiting to unlawful force (cannot claim duress when someone
threatens to commit a legal act) and only for bodily harm (does NOT protect other interests)

INTOXICATION
Does not excuse criminal conduct; however in limited circumstances, intoxication
may negate the necessary state of mind for a given offense (SPECIFIC INTENT)
Model Penal Code 2.08(4)(5) distinguishes three types of intoxication:
(1) Voluntary (self-induced) intoxication;
(2) Pathological intoxication; and
(3) Involuntary (non-self-induced) intoxication.
Exculpation Based on Intoxication
[1] Mens Rea Defense Any form of intoxication is a defense to criminal conduct if it negates an
element of the offense. [MPC 2.08(1)]
ONE EXCEPTION: In the case of crimes defined in terms of recklessness, a person acts recklessly as
to an element of the crime IF, as the result of the self-induced intoxication, he was not conscious of a
risk of which he would have been aware had he not been intoxicated. [MPC 2.08(2)]
[2] Insanity Pathological and involuntary intoxication are affirmatives defenses, if the intoxication
causes the defendant to suffer from a mental condition comparable to that which constitutes insanity
under the Code. [MPC 2.08(4)]

INSANITY
Legal term that presupposes a medical illness or defect but mental illness
Insanity is a NARROW TERM a person may mentally ill and NOT legally insane

Major Test is the M'Naughten Rule (focusses on cognitive disability)

at the time of the criminal act, he was acting from such a defect of reason, arising from
a disease of mind that he
1. Did not know the nature and quality of the act he was doing
2. If he did know, he did not know that what he was doing was wrong
AN ALL OR NOTHING defensedoes not allow for degrees of incapacity nor does it recognize any
power of choice in which a person is aware that conduct is wrong yet cannot control his behavior

Irresistible Impulse Test Expanded Scope to include volitional capacity (unable to choose)
Someone who cannot control their behavior but understands it--gets the defense

1. Acted from an irresistible and uncontrollable impulse

2. Was unable to choose between the right and wrong behavior
3. His will was destroyed such that his action were beyond his control
Durham Rule --Product Test (super broad NO LONGER USED)

27

Was crime the product of mental disease or defect?

MPC Test: A person is not responsible for his criminal conduct if, at the time of the
conduct, as the result of a mental disease or defect, he lacked substantial capacity to:
1. Appreciate the criminality or wrongfulness of his conduct OR
2. To conform his conduct to the requirements of the law
***does not require total mental incapacity like MNaughten Rule
State v. Johnson Insanity under the adopted MPC
The Supreme Court of Rhode Island chose to adopt the Model Penal Code Test, as it represents a
significant, positive improvement over the MNaghten Rule.
Acknowledges both volitional and cognitive impairments must be considered by the jury
Federal Test 18 U.S.C. Section 17
D may be excused based on insanity if he proves by clear and convincing evidence that, at the time of
the offense, as a result of mental disease or defect, he was unable to appreciate

1. Nature and Quality of his conduct

2. The Wrongfulness of his conduct
***requires complete cognitive incapacity
Wrongfulness v. Criminality (wrongfulness is broader standard i.e. killing kids to save them from hell)
Things that seems right to insane person but know are illegal
Not understanding NATURE and QUALITY of actions
i.e. thinking you are squeezing a lemon and instead you are killing your spouse

Automatic Commitment JX
IF found not guilty by reason of insanity (NGRI) is automatically committed to a
mental facility on the basis of the verdict.
Discretionary Commitment JX
Commitment of an insanity acquittee is not automatic, but the trial judge has the authority
to require a person found NGRI to be detained in a mental facility to be observed and
examined in order to decide whether he should be committed indefinitely
Length of Confinement
IF it is determined by the judge that the D is incompetent to stand trial they are committed until they
regain competency a period of time that may exceed the potential maximum sentence for the
offense charged.
Release is based on criteria for release NOT length of potential sentence

Sexual Predatory Laws

If the court determines beyond a reasonable doubt a D is a sexual predator he is committed to a mental
facility until deemed safe to be released into the community
Persons convicted of or charged with a sexually violent offense and who suffer from a mental
abnormality or personality disorder which makes further sexual predatory acts likely

Competency to Stand Trial

28

--FOCUS on the time of the trial NOT the time of crime

--variety of reasons: mentally ill; amnesia
***cannot execute an insane person
D is incompetent to stand trial unless she has sufficient present ability to consult with her lawyer
1. Must understand that they are a D on trial for a crime
AND
2. What their lawyer is arguing on their behalf
MPC 4.04 Mental Disease or Defect Excluding Fitness to Proceed
No person who as a result of mental disease or defect lacks capacity to understand the proceedings
against him or to assist in his defense shall be tried convicted or sentenced for the commission or an
offense so long as such incapacity endures.

Insanity Affirmative Defense

IF the defense is raised. The prosecution still needs to prove each element of the crime.
May raise both insanity and self-defense.
But Mental Health evidence besides from the plea of insanity is not admissible before the jury
May be raised at the D's initial appearance before a magistrate, at any time during the proceedings an d
during trial
The State may require the D to prove his incompetency by a preponderance of evidence
Insanity is an affirmative defense
therefore the legislature may constitutionally require the D to persuade the fact finder
that she was insane at the time of the crime.
MPC 4.03 Mental Disease or Defect Excluding Responsibility Is AFFIRMATIVE DEFENSE
1 Mental disease or defect is excluding responsibility is an affirmative defense
2 Evidence of mental disease excluding responsibility is not admissible UNLESS the D give notice
of his purpose to rely on such a defense
1 When the D is acquitted on the ground of mental disease or defect excluding responsibility, the
verdict and the judgment shall so state.

Diminished Capacity
a Ds abnormal mental condition short of insanity
Mens Rea Defense
evidence of mental abnormality is not offered by the D to partially or fully excuse
his conduct, but rather as evidence to negate an element of the crime charged.
Serves as a failure-of-proof defense
Diminished capacity -- mitigates murder to second degree
CA does not apply diminished capacity nor does it apply in Federal Law
o Bans this evidence for protection of the jury
MPC 4.02 Evidence of Mental Disease or Defect Admissible When Relevant to Element of the
Offense
Defect Impairing Capacity as Ground for Mitigation of Punishment in Capital Cases

29

1 Evidence that the D suffered from a mental disease or defect is admissible

whenever it is relevant to prove that the D did not have a state of mind which
is an element of the offense.
2 Death penalty cases must allow evidence that the capacity of the defendant to
appreciate the criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law was impaired as a result of mental disease or
defect is admissible in favor of sentence of imprisonment.
MPC 4.08
1 When a D is acquitted on the grounds of mental health he is turned over to Commissioner of
Mental Hygiene (psychiatric facility) for custody care and treatment
2 D may be released on condition if deemed not dangerous to himself or others
3 If deemed safe for release by two psychiatrist the Court than decides on what condition or if it is
not proper
4 If within 5 years of release the conditions set out by the Court are violated, the D must return to
psychiatric care
5 Cannot be considered for release until at least 6 months in psychiatric care
The insanity acquittee is automatically committed by the criminal court to a psychiatric facility
for custody care and treatment of his mental illness
A verdict of not guilty by reason of insanity establishes two facts:
1 The D committed an act that constitutes a criminal offense
2 He committed the act b/c of mental illness
***May remain in custody as long as he remains both mentally ill and dangerous

Inchoate Offenses (INCOMPLETE CRIMES)

Activity that occurs after the formation of the mens rea but falls short of
attainment of the criminal goal

Conduct that is designed to culminate in the commission of a substantive offense but has failed
in the discrete case to do so or has not yet achieved its culmination b/c there is something that the
actor or another still must do

Punishment
Common Law: Inchoate crimes are treated as a lesser offense than the substantive crime
CA says attempt is punishable by imprisonment for one-half the term of imprisonment
prescribed
MPC 5.05 Ties the Underlying Crime to the Attempt SAME PUNISHMENT
Exception of homicide & first degree felonies is reduced to the second degree

Mens Rea
Criminal attempt occurs when a person, with the intent to commit an offense performs
any act that constitutes a substantial step towards the commission of that offense
1. Complete but imperfect: the D did everything that he could do to carry out the crime but
fails to attain his criminal goal
2. Incomplete attempt: the D did not follow through with everything that would be needed to
carry out the crime (either quits or is prevented from continuing)

Mens Rea of Attempt ALWAYS Specific Intent Offense

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1. D must intentionally commit the acts that constitute the actus reus of an attempt
AND
2. MUST perform these acts with the specific intention of committing the target crime
People v. Gentry Gasoline poured on Girlfriend ignited by the Stove
In the case of attempted murder, the D MUST hold the specific intent to actually kill the victim
Here it was the D who extinguished the fire
ATTEMPTED MURDER holds different elements then MURDER
The intent to do bodily harm or knowledge that the consequences of the act may result in death
or great bodily harm, is not enough

Actus Reus of Criminal Attempts

When an act moves beyond preparation and consummates the criminal attempt:
(1) Last act test an attempt occurs at least by the time of the last act but this test does not
necessarily require that each and every act be performed on every occasion.
(2) Physical proximity test the defendants conduct need not reach the last act but must be
proximate to the completed crime.
(3) Dangerous proximity test an attempt occurs when the defendants conduct is in dangerous
proximity to success, or when an act is so near to the result that the danger of success is very great.
(4) Indispensable element test an attempt occurs when the defendant has obtained control of an
indispensable feature of the criminal plan.
(5) Probable desistance test an attempt occurs when the defendant has reached a point where it was
unlikely that he would have voluntarily desisted from his effort to commit the crime.
(6) Unequivocality test an attempt occurs when a persons conduct, standing alone, unambiguously
manifests his criminal intent.
United State v. Mandujano Requires at least appreciable fragment of the crime to be committed
Unequivocal Act Testthe attempt must be such that the crime will be committed if not
interrupted by forces independent of the will of the attempter
Need more than Mere Preparation
o
Line somewhere between preparation and attempt
--Conviction upon proof of mere intent provides too great a possibility of speculation and abuse
NEED UNIQUE OBJECTIVE INDICATORS OF CRIMINAL MOTIVE
When INTENT CAN be CLEARLY SHOWN an act done towards the commission of a crime may
be sufficient for an attempt even though that same act would be insufficient if the intent is not
clearly shown
THE MORE SERIOUS THE CRIME THE FURTHER BACK the series leading up to the
consummated crime should the criminal law reach in holding the D GUILTY for the ATTEMPT
Similarities and differences from the substantive crime attempted

IS it SUFFICIENTLY close to the SUBSTANTIVE CRIME

Or close enough to cause IRRPARABLE HARM
o
As to preclude from any further postponement of official intervention
REASONABLY CERTAIN that one is firmly committed to a specific ILLEGAL
VENTURE rather than contemplating a possible commission of a future crime

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IS the ACT sufficiently UNAMBIGUIOS to demonstrate the actor's ILLEGAL

INTENT

State v. Reeves Rat Poison Rascals

State needed to show:
1 An intent to commit a specific crime
2 An overt act toward the commission of that crime
3 A failure to consummate the crime
Court used standard provided in MPC 5.01
A person is guilty if acting with the type of culpability otherwise required for the crime he
a Purposely engages in conduct that would constitute the crime if attendant circumstances were as
he believed
a Sets a plan in motion that would have that criminal result
b OR TAKES A SUBSTANTIAL STEP IN A COURSE OF CONDUCT PLANNED TO
CULMINATE IN THE COMMISSION OF THE CRIME
Under 5.02 (e-f) possession of materials employed in the commission of the crime
the jury was justified in finding it was a SUBSTANTIAL STEP
Common LAW NO Renunciation
--not being liable for the full crime is enough incentive
(Leaves it to sentencing to mitigate renunciation of attempt to commit crime)

Defense of Impossibility
Legal Impossibility: If the intended act is not criminal there can be no criminal liability for an attempt
to commit the act
i.e. you think it is illegal BUT it is not illegal in actuality NOT LIABLE
Factual Impossibility: IF the intended substantive crime is impossible of accomplishment because of
some physical impossibility unknown to the accused, the elements of a criminal attempt are present
i.e. it is illegal, even if it is factually impossible to commit the crimestill prosecute offense
o You think it is heroin but it wasn't still liable of crime
Hybrid Impossibility: That actor's goal is illegal, but the commission of the offense is somehow
rendered impossible by attendant circumstances or lack thereof.
i.e. shooting a corpse believing it is alive
Attempt is a version of the crime itself
Someone cannot be convicted of BOTH the crime and the attempt to commit the crime
Conspiracy is an ADDITIONAL wrong over and above the substantive crime
Impossible to commit the crime without attempting to commit the crime

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If you are only charged with attempt and you find they committed the crime you cannot be held liable
for the crime itself
CAN ONLY BE CONVICTED OF WHAT YOU ARE CHARGED WITH
CA PC 21a: An attempt to commit a crime consists of two elements
1 A specific intent to commit the crime and
2 A direct but ineffectual act done toward its commission

MPC 5.01 Criminal Attempt

1 Definition: acting with the kind of culpability otherwise required for
commission of the crime
a

Purposely engages in conduct that would constitute the crime if the attendant circumstances
were as he believes them to be
i Hypo possesses what is believed to be heroin but it is fake
a When causing a particular result is an element of the crime does or omits to do anything with
the purpose of causing or with the belief that it will cause such result without further conduct
on his part
i Shoots what is believed to be a person but it is a cardboard cutout
a Purposely does or omits to do anything which under the circumstances he believes them to be
is an act or an omission constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime
i Substantial step, strongly corroborative of criminal purpose
1 Conduct that may be held substantial Step
----It is strongly corroborative of the actor's criminal purpose
a Waiting, searching, or following the contemplated victim of the crime
a Enticing the contemplated victim to go to the place designated for its commission
b Inspecting the place contemplated for the commission of the crime
c Unlawful entry of a structure vehicle or enclosure in which it is contemplated that the
crime will be committed
d Possession of material to be used in the commission of the crime that are specially designated
to be employed in the commission of the crime, that are specially designated for such unlawful
use or which can serve no lawful purpose of the actor under the circumstances
e Possession, collection or fabrication of material to be employed in the commission of the
crime (which serve no lawful purpose under the circumstances)
f Soliciting an innocent agent to engage in conduct constituting an element of the crime
1 Conduct Designed to Aid Another in Commission of Crime
--Still guilty of an attempt to commit a crime even if the crime is not committed or attempted by
such other person (who was supposed to commit the crime)
1 Renunciation of Criminal Purpose
--If one voluntarily abandons his effort to commit a crime or otherwise prevented its commission
(complete and voluntary renunciation of his criminal purpose) hold an affirmative defense
Does not hold for accomplices.

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Not a defense if motivated by a decision to postpone until more advantageous time or to

another or similar objective or victim

Special Mitigation
MPC 5.05 Grading of Criminal Attempt, Solicitation and Conspiracy; Mitigation in Cases of Lessor
Danger; Multiple Convictions Barred
1 GRADING --> Attempt, solicitation and conspiracy are crimes of the same grade and degree as
the most serious offense that is attempted or solicited or is an object of the conspiracy
a An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first
degree is a felony of the second degree
1 Mitigation
--IF the particular conduct charged is SO INHERENTLY UNLIKELY to RESULT in the
COMMISSION of a CRIME
--SUCH that neither conduct nor the actor presents public danger warranting the grading of such offense
the Court shall exercise its power under 6.12 to enter into a sentence of a lower grade or degree or drop
the charge all together
1 Multiple Convictions
--A person may not be convicted of more than one offense defined by this Article for conduct designated
to commit or to culminate in the same crime

Liability for the Conduct of Another

Solicitation
Actus Reus: takes place when one person invites, requests, commands, hires or encourages
another to commit a particular offense.
Neither party needs to perform any act in furtherance of the substantive crime
Complete upon communication of the solicitation to another
Mens Rea: Specific Intent crime must intentionally commit the actus reus of the offense
MPC 5.02 A person is guilty of solicitation to commit a crime if:
1. His purpose is to promote or facilitate the commission of a substantive offense AND
2. With such purpose, he commands, encourages or requests another person to engage in conduct
that would constitute the crime, an attempt to commit it or would establish the other persons
involvement in the commission or attempted commission
Renunciation: MPC establishes a defense to solicitation of renunciation of criminal purpose IF:
1. Completely and Voluntarily renounces his criminal intent AND

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2. Either persuades the solicited party not to commit the offense or otherwise prevents him from
committing the crime

Complicity

One is an accomplice in the commission of an offense if he intentionally assists another to engage

in the conduct that constitutes the crime. Accomplice activity may include aiding, abetting,
encouraging, soliciting, advising and procuring the commission of the offense
Accomplice liability may be convicted of any offense committed by the primary party with the
accomplices intentional assistance.
Most JXs extend liability to any other offense that was a natural and probable
consequence of the crime solicited, aided or abetted.
Principle in the first degree: is the one who actually commits the crime
Second Degree- is the one found guilty of felony by reason of having aided, counseled and commanded
or encouraged the commission thereof in his presence either actual or constructive
Accessory Before the Fact one who is not actually or constructively present when the crime is
committed (often such person: solicits, counsels, or commands the principle in the 1st degree)
Accessory After the Factone with knowledge of anothers guilt who intentionally assists him to
avoid arrest, trial or conviction
Types of Assistance: Physical conduct; Psychological Influence; Assistance by Omission
Amount of Assistance Requires (immaterial): any aid suffices, even if it was not needed to carry out
the crime or fails to successfully further the crime
Riley v. State Open Fire into Crowd// You dont know who actually wounded the bystanders
Rule: When a D solicits, encourages, or assists another to engage in conduct and does do with the
intent to promote or facilitate that conduct the D becomes accountable for that conduct
It doesnt matter who fired the gun b/c they both hold the same degree of guilty
Pinkerton Doctrine: A party to a conspiracy is responsible for any criminal act committed by an
associate if:
1. Falls within the scope of the conspiracy OR
2. Is a foreseeable consequence of the unlawful agreement
State v. Linscott I intended to commit Robbery NOT Murder
Accomplice Liability for the secondary crime is found on the basis that the secondary crime was
a foreseeable consequence of the actors participation in the primary crime
The D knew that the drug dealer carried a firearm on his person
MPC 2.06Accountability
A person is guilty of an offense if he commits it by his own conduct or by the conduct of another
person for which he is legally accountable, or both. Founded on:
3. Accountability through innocent instrumentality

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4. Accomplice Accountability: one is an accomplice if, with the requisite mens rea, he
solicits, aids, agrees to aid or attempts to aid in the planning or commission of the crime,
or has a legal duty to prevent the commission of the offense, but makes no effort to do so.
5. Miscellaneous accountability: Legislatures may enact special laws of accomplice
liability (i.e. prohibiting the aiding & abetting of suicide or prison escape)
Rejects the Pinkerton Doctrine
A person is not accountable for the conduct of another solely because he conspired with that
person to commit an offense.
State v. Hoselton Storage Unit // Clueless Lookout
Lookout (aider and abettor): by keeping watch to avoid interception or detection or to provide
warning during the perpetration of the crimes
He must associate with the venture [crime] that he wishes to bring about and by his action make it
succeed
REVERSEDSpecific Intent of Purpose or Knowledge was not met by the State
Liability of the Secondary Party in Relation to the Primary Party
State v. Ward OLD Doctrine of accessoryship applicable to felonies
Accessory after the fact is one who with knowledge of the other's guilt renders assistance to a
felon in the effort to hinder his detection, arrest trial or punishment
An accessory cannot be tried without his consent, before the principal
And an accessory could not be convicted of a higher crime than his principle
MODERN RULE: A conviction of the principle in the first degree is not a perquisite to the
conviction of a secondary party
Even if the principle is prosecuted but acquitted on the basis of an excuse defense, his
acquittal should not bar a prosecution and conviction of secondary party whom the excuse
does not extend
An accomplice or accessory may be convicted of a more serious offense than is proved
against the primary
MPC 2.06 holds the MODERN RULE + expressly provides that a person who is legally incapable
of committed an offense personally may be held accountable for the crime if it is committed by
another person for whom he is legally accountable
Mens Rea in Complicity Offenses Generally Intention (Knowing in some cases)
MAJORITY: a person must share the criminal intent w/the principle or benefit to be an
accomplice
MPC 2.06(3) Need Purpose (knowledge does NOT suffice) of the consequences of conduct
with purpose of promoting or facilitating the commission of the offense
People v. Lauria Knowledge of Prostitute Phone Service
Must equate knowledge of another's criminal activity w/conspiracy to further criminal activity
Case law:
1 Innocuous substances do not require discrimination in the conduct of their business

36

Dangerous products on the other hand DO REQUIRE the EXERCISE OF

DISCRIMINATION in distribution process
a Inherently the same susceptibility to harmful and illegal use
a Stake in the venture
b Informed and Interested cooperation

NEED KNOWLEDGE OF ILGALITY AND INTENT

Considerations:
1 Intent may be inferred from knowledge when the purveyor of legal goods has a stake in the
venture
i.e. the accused rented a room for the purpose of prostitution for a greatly inflated price
1 "" when no legitimate use for the goods or services exists
a i.e. providing information on illegal gambling
1 "" when the volume of business is grossly disproportionate to any legitimate demand or
when sales for illegal use amount to a high proportion of the seller's total business
2 HOW SERIOUS/ HARMFUL is the CRIME?
Rule: The intent of a supplier who knows of the criminal use to which his supplies are put to
participate in the criminal activity connected with the use of his supplies may be established by :
1 Direct evidence that he intends to participate
2 Through an inference that he intends to participate based on
a His special interest in the activity or
b The aggravated nature of the crime itself
Lauria was furthering a misdemeanor and the State held insufficient evidence that he intended to
further their criminal activities
not enough proof of his participation in a criminal conspiracy to further prostitution
2.06(4) Accomplice liability may be found in cases involving recklessness or negligence when
causing a particular result is an element of a crime
1. He was an accomplice in the conduct that caused the result AND
2. He acted with culpability, if any, regarding the result that is sufficient for commission of the
offense
***liability may attach in cases of crime involving recklessness or negligence
Bailey v. Common Drunk, legally blind, War Hero is GAY! Ill meet you on the porch
Negligence or Recklessness was so gross and culpable as to indicate a callous disregard for human life
HiS ACTIONS were a proximate cause for Murdocks death
Rule: One who effects criminal act through an innocent or unwitting agent is principle in the 1st degree
18 U.S.C.A. section 4 and 2
2 a) whoever commits an offense against the U.S. or aids, abets, counsels, commands, induces or
procures its commission, is punished as a principle of being a accomplice of a crime -->may be
punished the same way
a Whoever willfully [probably not Cheek] causes an act to be done which if directly performed by
him or another would be an offense against the US, in punishment as a principle
o Punishment of the principle is irrelevant
CAN STILL PUNISH THE AIDER
CA PC 31,32 same
a If you tried to help aid but failed you are still guilty
Common Law

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Principle in 1st degree = perpetrator

Principle in 2nd degree = at the robbery at that time
Accessory before the fact = helped plan carry out
Accessory after the fact = knowingly aided and abetted
State v. VT Stolen Video Camera Footage Recording D
OVERTURNEDNO PROOF V.T. intentionally advised, encouraged or assisted crime
Rape Occurs w/15 witnesses
argument for aiding and abetting can only be based on duty of care
IF they were clapping, they do not need to know that what they are encouraging is a crime, they just
need to be encouraging the conduct that constitutes the crime with the requisite mens rea of that crime
Mens Rea
Must Intend to aid and abet "the crime" (intent to aid AND intent that principal commit the conduct
constituting the crime)
Wilcox v. Jeffery Jazz player from U.S. denied permission by UK government
Journalist went to performance and wrote a positive review of the show
ENCOURAGED CRIME = ACCOMPLICE = GUILTY
Hypo: A asks B for gun to go duck hunting. A uses gun for robbery. B is not liable
State v. Helmenstein Asleep while friends robbed video store // come up with story to deceive police
Generally must have mental state required for crime
A aids B in killing C. B has P & D. A is in a heat of passion. A is accomplice but is guilty of
manslaughter --due to his own mens rea
Purpose
Perhaps majority: purpose "something that he wishes to bring about that he seeks by his action to make
it succeed"
Knowledge that the crime will occur is enough (MAYBE ENOUGH)
Seriousness of underlying crime
Extent of engagement, price
o Criminal Facilitation (new crime--lower liability)
i.e. an unusually high price indicates you are sharing in the proceeds of the crime

Conspiracy
Conspiracy is an agreement by two or more persons to commit a criminal act or series
of criminal acts, or to accomplish a legal act by unlawful means
Common Law
--Need not be based on an express agreement

partys must only be aware of the essential nature (scope and objective)
agree to commit or facilitate some of the acts leading up to the substantive crime

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MPC 2.06 A Person is Guilty of Conspiracy if he Agrees to:

1. Commit an offense
2. Attempt to commit an offense
3. Solicit another to commit an offense
4. Aid another person in the planning or commission of the offense
Common law Conspiracy is complete upon formation of the unlawful agreement
No act in furtherance of the conspiracy need be proved
Majority of JXs hold Statute requiring proof of the commission of an over act in furtherance of
the conspiracy
Any act no matter how trivial is sufficient basis to prosecute every member of the
conspiracy, including those who may have joined in the agreement after the act was committed
MPC only requires proof of an overt act for a misdemeanor or a felony of the 3rd degree
Common law Plurality requires proof that at least 2 persons possess requisite mens rea
MPC Majority Rulethe D at issue is guilty if he agrees with such other person to commit an
offense (many states have adopted this method)

Mens Rea of Conspiracy is Specific Intent

1. Intend to agree
2. Intend that the object of their agreement to be achieved
***See above NEED PURPOSE FOR MPC
Common law allows knowledge when there is a corrupt motive
Liability of Parties for Substantive Offenses
Each party to conspiracy is liable for EVERY offense committed by every other conspirator in
furtherance of the unlawful agreement
Overt-Act-Requirement
Only 1 conspirator needs to commit an overt-act (actus reus) to render prosecution permissible
against every other party to the same agreement
MPC 5.03 A person with multiple criminal objectives is guilty of only 1 conspiracy if the multiple
objectives are:
(1) party of the same agreement or (2) part of a continuous conspiratorial relationship
Conspiracy to commit is normally punished less severely than the target offense
MPC 5.05A conspiracy to commit any crime other than felony of the first is at the same level as
the target offense
Mens Rea: An agreement with others to commit a crime
Merger/ no merger
MPC -- YES
Common Law -- often no
If yes--you can be convicted of both crimes

39

Actus reus:
Very low standard -- i.e. getting a map to see banks in the area
Certain JX are over act JXs -- much less than substantial step for attempt
If they are joking-->they are not guilty
--It is based on the implicit agreement (does not need to be express agreement)
Pinkerton Rule --applicable in some jx not in others
(interpretation of statute law)
Guilty of conspiracy if:
In furtherance of the unlawful project
Foreseeable/natural and probably consequence
Within scope of unlawful project
Importance of Conspiracy
--independent crime. --does not merge at common law but does under MPC
--evidence. All statements made in the course of conspiracy come in against all defendants
--venue. Can try the case anywhere where an overt act took place
(allows the prosecutor to try a case where they please within this scope)
--liability. Pinkerton rule
Pinkerton v. Accomplice
Pinkerton: any crime foreseeable within the scope of the conspiracy
Technique for making you liable for other crimes
Theory of liability
o You are liable for the substantive crime
Accomplice:
Hypo: A low level street drug dealer is liable for any other crime within that network they are apart of
Unilateral or Bilateral
Hypo: undercover cop makes an agreement pretending to be a minor looking for sex
Is it conspiracy when they agreed to have sex with the minor?
--depends on how the statute is drafted