A.

Legality Nulla Poena Sine Lege [No punishment without law]

In order to punish an individual for an act, that act must be criminal before the
individual committed the act.
1. A crime must (1) provide fair warning of criminality and (2) limit
discretion.
a. Commonwealth v. Mochan called and harassed woman repeatedly.
Court held guilty at common law because his act, despite not being
codified, was injurious to the public and common law can punish any
act injurious to public.
b. McBoyle v. Unites States - convicted of stealing airplane under act
on theory that airplane falls into language of vehicle. Court rules that
airplane is not considered vehicle.
Rule of Lenity Statute must be interpreted in the narrowest way; when ambiguity
exists in statute, tie goes to .
c. United States v. Dauray - charged w/ possession of CP; however, the
statute was ambiguous and Court ruled that when wording is
ambiguous, tie goes to the .
Statutory Interpretation
(1) plain language,
(2) linguistic interpretation,
(2a) associated words,
(2b) statutory structure (context clues),
(2c) statutory amendments,
(2d) avoiding absurdity,
(3) language rules,
(4) legislative history.
2. MPC no lenity
B. Acts The Requirement of Voluntary Action
There must be a voluntary act.
a. Martin v. State police took drunk man out of his house and pulled
him into the street; charged with appearing to be drunk in public.
Court ruled that his act was not voluntary and is not able to be
punished.
A voluntary act is simply a voluntary bodily movement pulls trigger, raises arm, etc.
2. Does not include the results of conduct ie. Explosion of bomb. Does not
include involuntary actions (spasms, seizure, etc)
Involuntary Acts are NEVER blameworthy.
3. Act is NOT involuntary merely because of unintentional consequences
that occurred.
a. People v. Newton -- was struggling w/ two officers, was shot, and
ended up killing an officer. Court found some evidence that made
possibility that was unconscious when fired shots NOT a
voluntary act.
4. MPC 2.01(2) List of Involuntary Actions
a. reflex/convulsion;
b. acts during hypnosis;
c. acts during unconsciousness or sleep;
d. bodily movement not the product of conscious effort

Habit act out of habit ruled to be voluntary.

Impossible to punish thoughts need act.
5. Problem of proving mere thoughts; problem of distinguishing intent from
fantasy.
C. Omissions
A person, generally, has no duty to act to prevent harm to another, even if there is no
risk of harm to herself and person is certain to die w/o aide.
a. Jones v. United States charged w/ IVMS for failing to provide for
baby. Court ruled instructions werent given to find necessity for jury
to find legal duty of care reversed conviction and remanded.
b. Pope v. State found guilty of child abuse. She did nothing while a
mother of a child savagely beat it in her presence. She also failed to
take the child to get medical attention. had no right to usurp the
mothers duties. Court found not guilty; moral oblig legal oblig
dont have to provide care absent legal duty.
2. When there IS a duty to act:
a. Statutorily imposed:
i. FL require bystander to provide aid when a person is a victim of a
crime.
b. Status relationships
i. husband/wife; mother/child
ii. Contractual duty;
iii.
Beardsley case shows no duty from male to female mistress. No
automatic duty for siblings nor parents to adult children.
c. One has voluntarily assumed care of another and so secluded the
helpless person as to prevent others from rendering aid.
d. Creation of Peril Voluntarily.
3. Liability for Duty
a. Must be aware of duty;
b. Must have a duty;
c. Must be able to perform duty.
NOT LIABLE WHEN: conflicting duty w/ 3rd party OR assisting party will put
someone else at risk.
4. MPC Approach:
a. Liability for an omission only when:
i. Duty to perform the omitted act is otherwise imposed by law; or
ii. The law defining the offense calls for a duty to perform the act
Possession Act or Omission?
b. Accused must be aware w/ sufficient time to be able to terminate
possession.
D. Mens Rea The Requirement of a Blameworthy Mind
Specific/General
a. Specific Intent requires proof that the crime was committed with a
particular moral culpability;
b. General Intent requires only that the action was intentional.
2. Specific describes a crime that requires to have actual knowledge of
some particular fact or circumstance.
2

a. Assault w/ intent to rape; burglary (breaking & entering w/ intent to

commit a felony)
3. General need to show only that knew the nature of the acts he
performed and that he would be guilty without proof that he desired any
particular further consequence; need only show that the act was committed
and it wasnt a mistake.
a. Ie. Rape
b. Normally knowledge, recklessness, or purpose at MPC.
c. Regina v. Faulkner went into hull of ship to steal rum, lights
match, whole ship catches fire. Court ruled only guilty of stealing rum
and not burning the ship did not act with criminal intent.
Mens Rea Defenses insanity, duress, accident, etc. each seek to establish LACK
of moral blameworthiness.
d. Regina v. Cunningham charged w/ maliciously partially
asphyxiating mother in law when went into house and stole gas meter
and noxious fumes seeped into MILs house. Ruled that malice doesnt
mean wicked, but malice requires an actual intention to do the
particular kind of harm that I fact was done or reckless as to whether
such harm should occur or not. Malice doesnt require ill-will, its
enough to foresee the outcome as a possibility.
Common Law & Model Penal Code 2.02 Mens Rea Distinctions
e. MPC requires that each element to a crime be proven with a morally
culpable state of mind.
f. A person cant be convicted under the MPC for strictly possessing a
morally blameworthy state of mind. MPC gets rid of the
culpability meaning of mens rea.
g. MPC gets rid of the general/specific intent distinction.
4.
Reasonable Person
a. The Law Abiding Citizen / Reasonable Person is evaluated from
the perspective of a person in the actors situation.
b. Physical characteristics are considered; however, hereditary & matters
of intelligence/temperament are not.
E.

Common Law

Definition

"Intentionally"
;
Purpose

(1) It was 's

conscious objective to
inflict
the
social
harm; OR
(2) the social harm
was virtually certain
to occur.

Culpability MPC

Definition

Purpose
(1) Its the conscious
A desired result objective to engage in
-Desires
the conduct of that nature or
100%
to cause such a result; OR
(2) Aware of the existence
of such circumstances or
he believes or hopes that
they exist. Must intend

for the circumstances to

exist; **Where criminal
conduct
is
necessary
condition for a further
motive, the conduct is
purposeful.
"Knowingly";
"With
Knowledge"

(1) Awareness of a
fact; or
(2) correctly believes
the fact to exist; or
(3) awareness of a
high probability of the
existence
in
questions; AND
(4a) takes deliberate
action
to
avoid
confirming the fact;
OR
(4b) purposely fails to
investigate in order to
avoid confirmation of
the fact. "OstrichInstruction" (Jewell)

Knowledge
(1) Aware that it is
Know it to be practically certain that the
true 100%
conduct will cause a
certain result; or
(2) ***Aware that conduct
is of that nature or that
such circumstances exist.
Deliberate ignorance and
positive knowledge are
equally culpable.

"Willfully"

Sometimes it can
mean "intentional";
however, can also
mean "act done with
bad purpose" or "with
an
evil
motive";
"intentional violation
of a legal duty";
"purpose to disobey
the law"

"Recklessness"
Not 100%
Substantial and
unjustifiable
ARGUE
EACH
ONE
OF THESE. Is
X substantial?
Is it not? Argue
your point!!!

Conscious disregard of a
substantial
&
unjustifiable
risk.
Whether it is a S&U risk
is a jury question.
S&U = considering the
nature & purpose of the
actors conduct and the
circumstances known to
him, its disregard involves
a gross deviation from the
standard of conduct that a
law-abiding person would
observe in the actors
situation.; SUBJECTIVE
STANDARD resembles
acting knowingly in that a
state of awareness is
required; however, risk is
less
than
practical
certainty. MPC appears to
require awareness as to all
three elements: that there

is a risk, that the risk is

unjustifiable, that the risk
is substantial.
"Malice"

Common law puts

malice in a very
similar
area
as
"recklessness";
however,
malice
normally
requires
intention.

"Negligence"
Did the actor
know of the
risk?
Think:
Were
they
careful
or
careless??
If
careful,
the
knew
Unjustifiable??
Ask,
the
possible harm
versus
the
benefit

Disregard of a S&U risk

that actor should have
known;
conduct is negligent if the
actor should be aware of
a S&U risk that the
material element exists or
will result from his
conduct.
OBJECTIVE
STANDARD

"Recklessness"

Disregard
of
a
substantial
and
unjustifiable
risk
which
actor
was
aware.
SUBJECTIVE
FAULT -- "not give a
damn' attitude"

**Nec. Con.

**Uncle needs to die for

inheritance. Put bomb on
plane in order to kill uncle
in order to get inheritance.
The Uncle must DIE,
necessary condition, to get
inheritance

"Negligence"

Constitutes
a
deviation from the
standard of care that a
reasonable
person
would have observed
in
the
actor's
situation; Actor fails
to appreciate that he is
taking
unjustifiable
risk; OBJECTIVE
FAULT -- Actor isn't
blamed
for
his
culpability, but for his
failure to realize his
unjustifiable risk. 3
factors: (1) gravity of
harm that foreseeably
would result from
conduct;
(2)
probability of harm

***Knowing
Conduct

***D fired gun in Vs

direction
&
was
prosecuted for knowingly
endangering the life of
another. D is guilty if he
is aware of the conduct
endangered the life of
another person. If he is not
aware (b/c he didnt see
anyone), then D did not
endanger
another
knowingly. (Same w/
attendant circum D must
KNOW the goods were
stolen). In order to combat
for willfull blindless,
MPC
allows
for
knowledge
to
be
established is aware of the
high
probability
of

occurring; (3) burden

or loss to actor from
not taking the risk. As
the
gravity
or
likelihood increases,
the more substantial
reason the actor must
have for taking that
action.

(attendant circum), unless

he actually believes that is
does not exist.

F. Mistakes
i.
Mistake of Fact
1. Strict Liability Crime = Mistake of fact is NOT a defense
2. Specific Intent Crime = Mistake of fact is a defense as long as mistake
negates the MR (moral culpability MR) if the mistake would have
actually been true, would it have been an otherwise legal action? Mistake
can be either reasonable or unreasonable.
a. A. takes Bs umbrella, thinking it was hers.
3. General Intent Crime = Mistake of fact is a defense as long as mistake is
reasonable. Is the mistake one that a reasonable person would have
harbored? If so, its reasonable.
EXCEPTION: Moral Wrong Doctrine: some mistakes, even if they are reasonable,
are not a defense to general-intent crimes because the act is morally wrong (Regina v.
Prince) Steps: (1) Is the actors mistake reasonable or unreasonable?; (2) If
reasonable, look at facts through actors eyes [what is it that you thought you were
doing?]; (3) Evaluate the morality of the actors conduct, based on the facts as the
actor reasonably believed them to be.
i. Regina v. Prince -- convicted of taking girl under 16 (didnt
know she wasnt 16) out of possession of her father and holding
her against fathers will. Court said his mistake as to the girls age
was irrelevant because the act in and of itself is WRONG (Strict
Liability as to girls age) and his mistake of fact is not a defense.
Legal Wrong Doctrine: A mistake of fact only relating to the degree of the crime
will not shield deliberate offender from the full consequences of the wrong actually
committed. You run the risk of committing the greater offense. Cunningham --
couldnt be guilty of a greater crime, unless KNEW of the risk.
ii. Criticism: Punishes the social harm of the crime while ignoring the
actors state of mind of the lesser.
4. MPC 2.04(1) mistake of fact OR law is a defense if the mistake negates
the mens rea required to establish a material element of the offense OR the
law provides that the state of mind establish by such ignorance or mistake
constitutes a defense. Either the actor HAD the requisite guilty mens rea
or they didnt. If they didnt, not guilty.
a. EXCEPTION: M.O.F not defense if would be guilty of another
defense, had the circumstances been as he supposed; however ONLY
GUILTY OF THE LESSER OFFENSE. Its like the legal-wrong
6

ii.

doctrine at CL, but it focuses actually on the mens rea and not
specifically the social wrong.
Mistake of Law
1. Common Law NOT A DEFENSE
a. Not a defense that was unaware acts were prohibited, even if
mistake is reasonable.
b. WHY? Allowing it to be a defense would frustrate law enforcement
anyone could claim MIL. Also, it forces citizens to learn the law. The
law is knowable, accordingly, laziness for failure to learn the law is no
excuse; however, the law is confusing and even a person in good faith
would fail to realize they have committed a crime.
c. Reasons why MIL SHOULD be a defense: retribution why punish
somewhat acting w/o intent? Also, if people dont know of the law,
how can they avoid doing the harmful act?
2. MPC MOL is not a defense. 2.02(a)
a. EXCEPTION Law is not known to actor AND not published or
reasonably made available prior to the alleged conduct MPC 2.04(3)
(a)
b. EXCEPTION E for Effort Exception MPC 2.04(3)(b) You act on
reasonable reliance on the following and source were later deemed to
be erroneous:

Statute
Case
Admin Order
Official Interpretation by someone charged with interpreting law
i. U.S. v. Albertini: convicted of a trespass for engaging in a
protest demonstration on a naval base. Before the Supreme Court
accepted the case for review after the appellate court held that his
conduct was legal, performed the same act and was arrested
again. Second charge was reversed because his conduct was legal
at the time.
c. EXCEPTION Lambert Rule 1. If law is regulatory in nature, 2.
passive in character, 3. it punishes an omission, and 4. no notice was
given
i. Lambert v. California -- failed to register herself as convict in
LA and was convicted even though she didnt know she had to
register herself as a convict.
ii. Erroneous self-reading of the law is not a defense.
iii.
People v. Marrero Police officer charged w/ possession of a
firearm, but claimed mistake of law as he misread statute. Court
ruled NOT a defense. Mistake of Law is a viable defense in those
instances where an individual relies on the validity of a law and
later its determined that there was a mistake in the law itself, but
there is no defense for misinterpreting a law thats on you, bro
Dissent: Goal is to punish wrong doers, not a man who had no
intention of doing wrong.

iv.

Policy: Courts want to avoid people trying to read the law and
interpreting it themselves. Why is MIL not a defense? It enforces
duty of citizen to find out what the law is.
iii.
Quasi-Mistake of Fact/Law
1. Essentially a mistake about another law
2. How to tell?
a. Are we dealing with two laws?
b. Is the law makes a mistake about different than the one he is charged
with violating.
i. If so, then the may have a defense if it negates the mens rea.
ii. State v. Woods: a woman was found in bed with another womans
husband under illicit circumstances even though she had married
the man in another state and didnt know he was still married. The
mens rea for with anothers husband actus reus element is
negligence. Her mistake did not negate the mens rea because a
reasonable person should have been aware of the attendant
circumstances.
The Cultural Defense
c. There is no such thing as a cultural defense per se, but there are several
circumstances where law may excuse conduct when the law conflicts
with a foreigners cultural norms
d. Cases and Situations Where Cultural Factors Are Relevant
i. Insanity
ii. Foreigners may not appreciate wrongfulness of conduct because
they may not know the conduct is wrong
iii.
But, there must be a disease or mental defect that shows you didnt
know conduct was wrong
iv. Mistake of Fact
v. Ex. Hmong tribal marriage: Girl gets snatched by a man from the
Hmong tribe where there is a custom that the girl pretends to fight
before being taken off for marriage and the man doesnt realize the
girl he takes is not consenting
vi. Negating Intent
vii. Intent is rarely a question
e. Reasonableness (provocation, self defense)
f. Sentencing
iv. Strict Liability
i. Conviction in the absence of fault.
ii. neither knew nor had any reason to know that anything about his
behavior was legally or even morally wrong.
U.S. v. Balint: s were indicted for violating the Narcotic Act of 1914
because they sold derivatives of opium and coca leaves without the order
form required. s didnt know that they were selling prohibited drugs.
iii.
Held to a strict liability standard.
U.S. v. Dotterweich: Corporation purchased drugs from manufacturers and
repackaged them. Manufacturers labels were incorrect and as a result, the
corporations labels were incorrect. They were charged with violation of
the Federal Food, Drug and Cosmetic Act.
8

iv. Held to a strict liability standard.

Morissette v. U.S.: took casings from an Air Force practice, bombing
field, crushed them and sold them. He was convicted of knowingly
converting government property.
v. Strict liability cannot be applied to larceny/theft.
Staples v. U.S.: charged with possession of a machine gun. claimed he
did not know the gun would fire automatically and sought jury instruction
requiring proof of his knowledge. The statute mentioned no MR.
v. Vicarious Liability
1. A conviction in the absence of conduct; however, an individual cannot be
held liable for a crime punishable by imprisonment where the individual
did not commit, have knowledge, or give consent to the commission of
that crime.
2. Minority View State v. Guminga: Undercover operation where served
alcohol to a minor and employer (without knowledge) was also charged
via vicarious liability.
An individual cannot be held liable for a crime punishable by imprisonment where
that individual did not commit, have knowledge or give consent to the commission of
that crime.
2. RAPE
A. General
i.
Definition:
1. Sex, with force, without consent, [with reasonable resistance]
a. Lack of consent is established through proof of resistance or by proof
that the victim failed to resist because of fear.
b. Fear must be reasonably grounded.
ii.
Modern vs Traditional
1. Traditionally, perpetrating intercourse without consent was only a crime
when the victim was below a given age, unconscious, or mentally
incompetent.
2. Now, all instances of nonconsensual intercourse is criminal; however, a
vast majority of states still require s force and victims non-consent
before an act of sexual penetration becomes a felony.
iii.
Resistance Requirement
1. Several states still require earnest resistance; roughly half require
reasonable resistance.
B. Force
i.
General
1. Elements of force or coercion must be based solely on physical force
2. Force necessary to complete the intercourse doesnt count as force as an
element of rape.
3. Florida definition of rape:
a. Nonconsensual penetration committed without using force likely to
cause serious injury is a 2nd degree felony punishable by up to 15 years
b. In Fla no force needed.
ii. Resistance
1. Resistance is evidence of the use of force.
9

Lack of resistance is excused if there is a threat.

2. Why do we need proof of resistance?
a. There is a presumption that women involved in these situations are
promiscuous and the requirement of resistance shows proof that the
woman did not consent to the act.
3. Problems w/ resistance & force
a. Shifts focus from s actions to V
b. May subject the victim to risk
c. Verbal resistance is not enough to show force.
iii. Nonphysical Threats
1. There can be no force if there is no resistance, even if there was a prior
threat.
a. State v. Alston V left abusive relationship with . threatened victim
and demanded sex. When V refused, pulled her from a chair,
removed her clothes, opened her legs and had sex with her. Court held
no force; force requires physical force beyond what is necessary to
complete the act or psychological coercion.
2. Threats or intimidation do not constitute force.
a. State v. Thompson principal threatened to kick girl out of school if
she didnt have sex with him.
3. Force must be physical force or violence
a. Commonwealth v. Mlinarch girl committed to juvenile detention
facility but brother, agreed to take her in and said he would send her
back to juvenile detention if she didnt have sex with him.
4. Solutions to Non-Physical Threats:
a. MPC 213.1(2) punishes gross sexual imposition when a threat would
prevent resistance of a woman of ordinary resolution.
i. If a threat would prevent a reasonable person from resisting, then
the would be held culpable of gross sexual imposition instead
of rape.
b. Threat is considered forcible when consent is obtained by duress.
Four Approaches to the Problem of Force
c. Traditional view Alston: There can be no force if there is no
resistance, even if there was a prior threat
d. Rusk Rule: Force with reasonable resistance or verbal resistance is
okay
e. Thompson Rule: Force is not equal to coercion (there must be actual
physical force)
f. MTS: Force is equal to lack of consent
iv. Cases:
v. State v. Rusk: Pat claims she was raped by who took her keys after she drove
him home from a bar and persuaded her to come inside. Once inside she
claims he lightly choked her and she asked if she let him do what he wanted
if he would let her go and not kill her. She claims he said yes and she then
performed sexual acts for him. said the acts were consensual.
Failure to resist precluded by fear; Jury question to decide Vs fear

10

vi.

State v. DiPetrillo: Female employee was asked to work late by her boss who
later kissed her and notwithstanding her protests he digitally penetrated her.
He was convicted of 1st and 2nd degree sexual assault.
Did the judge err in defining the elements of 1st and 2nd degree sexual assault by
interpreting the element of force and coercion by reference to improper or
inapplicable standards?
a. Yes
b. Force or coercion may consist of the imposition of psychological
pressure upon a person who, under all of the circumstances, is
vulnerable and susceptible to such pressure
vii.
In the Interest of M.T.S.: MTS and CG lived in the same home and had
conflicting stories. CG claims she was sleeping and MTS penetrated her. MTS
claimed they were heavy petting and had sex and then CG told him to stop so
he did.
Is the element of physical force met by an act of non-consensual penetration
involving no more force than necessary to accomplish that result?
Court definition of force
a. Force is satisfied if the applies any amount of force against another
person in the absence of what a reasonable person would believe to be
affirmative and freely given permission to the act of sexual penetration
Court held that there was heavy petting and it went too far when MTS penetrated her,
so force element not met because there was an affirmative permission given by the
petting
C. Consent
i.
Statutes are not clear on definition of consent
Has been viewed as a state of mind (something a person feels, like willingness)
Has also been viewed as an action (something a person does, like giving
authorization)
ii.
If consent is procured by fraud or a trick, then there cannot be a rape.
Common law holds that seducers are not rapists
iii.
Evidence of Non-consent
1. Verbal resistance (no) plus other behavior
a. Totality of Circumstances Test
i. Use circumstances to figure out if victim really meant no
2. Verbal resistance only
a. only look at the verbal expression of non-consent
b. No always means no
3. Verbal resistance and passivity, silence or ambivalence
a. Saying no, being passive, quiet or ambivalent = non-consent unless
you are affirmatively giving permission by words or conduct
4. Non-consent presumed in the absence of yes
a. Unless you affirmatively say yes then there is no consent
iv. Defective Consent
1. Legal Age cant consent if not of legal age
2. Mental retardation
3. Incapacity
a. There is liability for rape when a has intercourse with a person who
was completely unconscious
11

b. Also liability when has intercourse with a person who is not

unconscious but is severely incapacitated by drugs or alcohol he gave
her without her knowledge.
c. **Many rape statutes do not impose liability if the victim was in an
incapacitated condition short of complete unconsciousness and if
someone other than the had secretly drugged the victim.
d. MPC liability only when gave the drug w/o Vs knowledge w/
purpose of preventing resistance.
i. NOT intended to protect individual who voluntarily takes
intoxicating substances.
Seduction

v.

12

e. Not criminal act at common law, but has been made criminal offense
by statute in some jurisdictions
f. Seduction: Consent of the woman, implied or explicit, has been
procured by artifice, deception, flattery, fraud, or promise
i. Not wrong ie. Brad Pitt lookalike lies to star struck fan and has
sex w/ her.
g. Fraud in the factum: as a result of fraud, V is unaware she has
consented to the sexual act lack of consent!
i. Vitiates (spoils) consent
ii. Ex. Told that vaginal procedure will be performed with a metal
instrument but doctor penetrates you with penis instead. Conceded
to insertion of the metal instrument, not the penis.
h. Fraud in the inducement: V knew she was consenting to sex Court
looks at it as consensual.
i. Does not vitiate consent
ii. Ex. Boro Case only procedure that saves is sex with me. V
KNEW about sex.
Cases
1. State v. Gagahar: Police officer poses as a job applicant and hotel manager
tries to kiss and fondle her, she says no and pulls away but manager rolls
on top of her and she pushes him away
a. Reversed because jury wasnt instructed to determine if no really
meant no
2. People v. Evans: Victim leaves an airport with whom she didnt know
and went to a bar with him to participate in a psychological experiment.
After the bar, she goes with him to his office and he tries to take off her
clothes but she stops him. He told her he was disappointed in her because
she doesnt know him and he could kill her, rape her or hurt her. She said
she was scared and he told her a story and she became sympathetic. He
then said youre mine and they had sex three times and oral sex once.
There was little to no resistance and she left of her own will the next
morning. No compulsion and no threat not guilty.
a. Did threats uttered by the paralyze her capacity to resist and
undermined her will that would have ordinarily precluded consent?
i. There can be no rape if consent is achieved by fraud, trick or
strategy

ii.

For words to be held to be a threat, they must have intended to be a

threat by the person who spoke them
3. Boro v. Superior Court: doctor, told victim that she had a deadly disease
and the only cure was an expensive surgery or to have sex with an
anonymous donor (himself) who had been injected with a serum. She has
sex with him and then finds out she doesnt have a disease.
a. This is fraud in the inducement
i. He is not liable for rape because she consented to the act of sex
even if he procured it by fraud. She was consciously aware she was
having intercourse.
D. Mens Rea
i.
Rape & Mistake
1. Generally, a genuine and reasonable belief as to victims consent is a valid
mistake of fact defense.
a. Mistake of fact may not be an available defense depending on the
jurisdiction
i. Commonwealth v. Fischer students in college dorm; gf
previously consented to sex, but second time she says she doesnt.
Court ruled mistake of fact not available b/c precedent doesnt
allow for it.
ii. Tyson v. State Tyson couldnt raise reasonable mistake of fact
defense when there was no unequivocal consent.
ii.
Consent & Mens Rea
1. Normally, doesnt require intent its a general intent crime in common
law jurisdictions. Its enough that possessed a morally blameworthy
state of mind.
a. The greater the required MR, the greater the potential unfairness to the
victim; The lower the required MR, the greater the potential unfairness
to the defendant
2. Consent is essentially Ds MR regarding the victims MR
3. Whats Different About Consent?
a. In a rape case consent turns on the victims mental state
b. Awareness of consent, then, is the Ds mental state as to the victims
mental state
MPC Approach
c. is guilty of rape if acting with the Purpose, Knowledge, or
Recklessness regarding each material element of the offense.
d. 213.1(2) Gross Sexual Imposition conviction of GSI where
submission to intercourse is compelled by any threat that would
prevent resistance by a woman of ordinary resolution.
e. Submission must result from coercion, not bargain.
i. Offer to give a bargain = nope; threaten to be fired = yep!
f. May also be culpable if:
i. Victim has mental illness that renders her unable to appraise the
nature of her conduct
ii. knows V is unaware that a sexual act is being committed on her;

13

iii.

knows that V is submitting b/c she is mistaken that is her

husband.

iv.
3. HOMICIDE
A. MURDER Unlawful killing w/ malice aforethought
Malice Aforethought largely a symbolic word can be express (deliberate
intention to take life) or implied (killing shows abandoned and malignant heart)
1. Intent to Kill;
a. Acted with the desire that the V ended up dead
b. Intent to kill requires a mature and rational reflection.
i. Guthrie dishwasher was snapped in the nose with a dishtowel.
2. Intent to inflict grievous bodily harm & victim dies
a. who shoots the V to hurt them badly, but V dies
3. Extreme reckless murder
a. Depraved or wicked heart; extreme indifference toward human life;
b. An inconsiderate disregard for human life
i. Russian roulette.
4. The Felony Murder Rule
a. When a person kills another person in the commission of any felony
i. Common Law also treats the escape as part of crime
b. Some jurisdictions have narrowed it to mean that it must be inherently
dangerous felony.
c. NOT guilty of felony murder if co-conspirator is killed by police
officers bullet; however, he would be guilty if it struck a bystander
First Degree Murder
d. Killing in specific manner
i. lying in wait, use of poison, use of explosive device
ii. Provides opportunity to reflect and requires planning
e. Willful, Deliberate, Premeditated
i. Premeditation: 2 definitions:
1. Rolling over in mind premeditation beyond formation of
intent
a. contemplative whether youre going to go forward with
the idea of the killing.
2. Instantaneous collapses premeditation w/ formation of
intent
a. Can be inferred by the use of a deadly weapon on a vital
part of the body.
i. Commonwealth v. Carroll lying in bed with wife,
grabs gun from the window sill and shoots her in a vital
part. No time too short for wicked man to frame . . .
scheme of murder.
ii. How to Prove Premeditation
1. All three, or strong evidence of 1 or 2 w/ either 1 or 3:
a. Planning Activity
i. Behavior prior to the crime;
14

ii. e.g buying a gun

b. Evidence of Motive
c. Manner was so complex and exacted
f. Felony Murder Homicide that occurs within commission of
specifically enumerated felony
Second Degree Murder
g. Intent to kill w/o premeditation
h. Intent to inflict grievous bodily harm killings
i. Unintentional, but depraved heart, gross recklessness, or reckless
indifference to human life
i. Russian Roulette Casedidnt intend to do kill, but it was
foreseeable of its occurrence.)
ii. Depraved heart = knew the risk, but went ahead anyway
1. This element requires knowledge. The must somehow know
the risk. If they dont know the risk, it would be negligence.
j. Felony Murder Killings in commission of felony not listed in MI
section
B. Manslaughter Unlawful killing w/o malice aforethought
Voluntary = Intent to kill, but has provocation
1. General:
a. Provocation: sudden event that arouses emotion to a heat of passion
i. Provocation is a concession to human frailty; however, is it
partially excused (Girouard) or partially justified (Maher)?
1. Critique: it assumes HOP is an acceptable response and focuses
on the victims conduct.
2. Critique: Victim blaming although conduct s wrong, its
partially justified. Dont rattle the dogs cage, youre going to
get bit.
2. Elements of Common Law VMS :
Actor must have acted in the heat of passion;
The passion must have been the result of adequate provocation;
The actor must not have had an opportunity to cool off;
1. There must be a causal link between the provocation, the
passion, and the homicide.
Common Law Elements
ii. Heat of Passion
1. Violent, intense, high-wrought and enthusiastic emotion arises
at the moment of the homicide.
a. E.g.: Fear, jealousy, furious resentment, wild desperation
2. It must CLOUD THE MIND or UNSEAT REASON that
results in temporary loss of control.
iii. Adequate Provocation
1. Must be adequate provocation (judge decides) for then the
jury to question whether provocation is reasonable.

15

a. Common Law: Battery, extreme assault, mutual combat,

unlawful arrest of , injury or serious abuse of a close
relative of , sudden discovery of spouses adultery.
2. Words do not constitute adequate provocation if they are not
accompanied by conduct indicting a present intention and
ability to cause bodily harm (under common law)
a. Girouard stabs wife 19 times after she insults him.
Court rules words not enough b/c she was tiny an
couldnt reasonably have felt fear.
b. MINORITY APPROACH: Allows words to suffice IF they
disclose facts that could be adequate if observed directly.
i. Maher killed a man after hearing man had sex with
wife in woods. Ruled that jury should decide if there is
adequate provocation, not judge.
3. Misdirected Reaction:
a. waited for bouncer outside club and kills someone he
mistook for bouncer held that entitled to MS jury
instruction. State v. Maurice
4. Violence @ Non-provoking victim:
a. observes person severely injure daughter, father goes
after person, but bystander killed intervening = no
provocation.
5. Person who ELICITS provocation:
a. Still reasonable b/c s actions are irrelevant.
iv. Cooling Time
1. Defense is unavailable if an ordinary person would have cooled
off in the time that elapsed between the provocation and the
final act.
2. Unavailable at CL is significant lapse in time
3. However, if event rekindles, it might be available.
MPC & Manslaughter
v. Manslaughter is committed if there is Recklessness OR [extreme
recklessness, purpose, or knowledge = MURDER] mitigated by
Extreme Emotional Disturbance.
1. Casassa: s g/f broke up with him and court applied
subjective std. Found reasonable person in s position would
have done the same thing. Under CL test, probably not
adequate provocation.
vi. Extreme Emotional Disturbance:
1. experienced intense feelings, sufficient to cause loss of selfcontrol, at the time of the incident.
a. Must unseat reason or result in a temporary loss of control.
2. Reasonableness of EED is based on POV of person in the
actors situation under the circumstances as he believes them to
be
3. Words alone can be adequate EED
vii. How its different from Common Law:
16

1. No need for specific triggering event

a. Brother was tormented by brother for years and one day
killed brother entitled to EED.
b. EED can be a slow brooding over time.
2. No rigid cooling off time
3. Words can establish EED
4. Assessment of Reasonableness in the MPC Test
a. Whether the actors loss of self control can be understood
in terms that arouse sympathy in the ordinary citizen.
b. Reasonableness assessed from s situation
c. Will be considered
i. Personal handicaps (i.e. height, weight, age, gender,
intelligence etc.)
ii. External circumstances (i.e. raining, hot, cold etc.)
d. Will not be considered
i. Idiosyncratic moral values (ex. I am an assassin and its
important for me to be good at my job so I want to be
the best assassin)
e. Might be considered
i. Unusual sensitivities
ii. Mental illness
Comparing Provocation Tests
Common Law Test
MPC Test
Adequate provocation
acted under EED [subjective]
Heat of passion
intense feelings, sufficient to cause loss of
Reasonable person would lose control
self-control
lost control
Reasonable person in s situation would
Reasonable person would not cool off
have acted likewise [objective]
did not cool off
Comparing Effect of Provocation Tests
Common Law Test
MPC Test
Triggering
event No triggering event needed
(provocation/adequate
No resultant heat of passion, just EED
provocation)
Subjective/objective reasonableness
Heat of passion
Cooling off unimportant if conduct reasonable
Objective reasonableness
Cooling off negates

Involuntary Manslaughter Unintentional

b. Criminally negligent killing
i. The difference between criminally negligent and recklessness to
find malice:
17

1. One who IS aware of the risk [recklessness (to constitute

malice) MII]
2. One who SHOULD BE aware [criminal negligence]
a. One who playfully fires a gun knowing there are bullets in
there (recklessness that would justify MII) vs. One who
playfully fires a gun not knowing (but should know) that
there are bullets in the gun criminal negligence
3. Also, must be so gross as to deserving punishment.
c. Recklessness & Wanton
i. Grave danger must have been apparent & the must have chosen
to run the risk rather than alter his conduct.
1. If realized danger, his action wanton or reckless, no
matter if ordinary man would have realized it or not.
2. Even if he didnt realize, cannot escape wanton or reckless
if ordinary man would have realized.
3. Misdemeanor Manslaughter
a. Jogging without a leash and dog bites kid who dies from the bites
i. Was committing crime at time of killing, but not kind of crime
that gives rise to felony murder?
b. General
i. MPC 2.01 (1)(a): criminal homicide constitutes manslaughter
when it is committed recklessly
1. Must weigh the gravity of the risk versus the justification of the
risk
c. Criminal Unintended Wrong vs Civil Unintended Wrong
1. Awareness of the Risk (MPC)
2. Requires higher degree of risk (Hall)
3. Risk of particularly serious harm (Hall)
4. Greater deviation from standard of care in crim wrong
d. Recklessness/Gross Negligence Requirement
ii.
General
Unintentional Homicide:
a. MII: Must show depraved heart, gross recklessness, OR
recklessness showing extreme disregard for human life.
i. E.g. Man who sped and drove onto boardwalk in CA.
b. IVMS: Must show recklessness or gross negligence.
c. Malice or gross recklessness will bump a murder up from IVMS to
MII
i. Malice to be implied when the killing results from an intentional
act, the natural consequences of which act was deliberately
performed by a person who knows that his conduct endangers the
life of another who acts with conscious disregard from life.
ii. Commonwealth v. Malone Russian roulette case While didnt
intend the friend to die, Court equated the playing of Russian
roulette to be gross recklessness for which he would reasonably
anticipate that death to another is likely to result = bumps up

18

unintentional killing to murder because gross recklessness =

malice.
d. Look at:
i. Magnitude of the risk;
ii. Magnitude of the harm;
iii.
Lack of Justification;
iv. Awareness of the risk.
MPC & Unintentional Murder
e. Unintended killing is Murder when the killing is committed recklessly
and under circumstances manifesting extreme indifference to the value
of human life
f. Recklessness need not be shown if was unaware of the risk because
voluntary intoxication.
g. Evidence of Unintentional Murder
i. Evidence that a intended to inflict serious bodily injury is
evidence that he recklessly created a risk of death
h. At common law, malice required for murder was established by the s
intent to inflict great bodily injury
i. MPC does not include a section of this b/c recklessness
manifesting extreme indifference to the value of human life
captures all the non-intentional homicides that should be elevated
to murder.
C. MPC CRIMINAL HOMICIDE
One is guilty of criminal homicide under the MPC if she unjustifiably & inexcusably
takes the life of another human being purposely, knowingly, recklessly, or
negligently.
MP recognizes murder, manslaughter, and negligent homicide.
i. Murder
1. Kills another human being purposely, knowingly, or recklessly under
circumstances manifesting extreme indifference to the value of human
life.
a. To distinguish reckless for murder versus manslaughter, it must be
extreme indifference to the value of human life for murder.
ii. Manslaughter
1. Recklessly kills another; or
a. Different from reckless murder b/c reckless manslaughter doesnt
show extreme disregard to human life.
2. Recklessly kills another under circumstances that would normally be
murder, but kills as a result of extreme emotional or mental
disturbance
iii. Extreme Emotional Disturbance
1. Lessens MPC Murder (P, K, or R w/ disregard) into manslaughter b/c
of reasonable explanation or excuse.
2. Intense feelings, sufficient to cause loss of control at the time of
homicide.
a. It is a subjective standard, from the eyes of the actor.
19

3. The objective portion is reasonable explanation or excuse for the EED

relates to the mental state of the actor and not the homicide
a. ie. The defense is not based on the ground that there is reasonable
explanation or excuse for the homicide, but rather there is a reasonable
explanation or excuse for the EED that caused the actor to kill.
4. NO CRIMINAL NEGLIGENCE unlike CL, drafters state that someone
shouldnt be punished for crime as serious as manslaughter for absence of
conscious disregard of substantial and unjustifiable risk.
UNINTENTIONAL HOMICIDE
How do you determine the difference between murder and manslaughter?
Common Law
MPC
MII
Gross
Super Recklessness
recklessness/depraved
(Recklessness + extreme
heart
indifference)
IVMS
Gross
Recklessness
negligence/recklessness
INTENTIONAL HOMICIDE
MI
MII
VMS

Common Law
Intent to kill with
premeditation
Intent to kill
Intent to kill with
provocation

MPC
Purposefully or knowingly
kill (just murder)
n/a (no degrees in MPC)
Intent to kill (P) with EED

D. FELONY MURDER ONLY COMMON LAW NO MPC

i.
A killing that occurs in the commission of a felony is murder.
ii.
Strict Liability
1. Theres no deterrent effect w/ felony murder
iii.
Possible Charges
MI b/c felony is enumerated
Felony is in the first degree murder statute
MII b/c unremunerated felony
MII b/c super reckless (MPC)
1. If the act implied malice or extreme indifference
MS because underlying felony is reckless or grossly negligent
If you act is reckless or grossly negligent, you may be convicted of MS
iv. Limitations to Felony Murder
1. Proximate Cause Use this when an innocent bystander is killed
a. Liable for any killings proximately caused by criminal activity, even if
the killing is by a 3rd party
b. Some states apply proximate cause standard when an innocent
bystander is killed.
2. Agency Rule (Vicarious liability) Use this when co-felon is killed
a. Felony murder doesnt apply if an adversary to the crime, not one
committing the felony, kills.
20

b. Felony murder doesnt apply if the killing is done by victim and is of

an innocent bystander.
c. Felony murder applies for all killings done by accomplices in
furtherance of the crime however, must be within the foreseeability
of committing the felony
i. Some states apply agency theory when co-felon is killed.
v. Inherently dangerous felony Two Tests:
a. In its abstract, does the initial crime carry a risk of death or substantial
bodily harm by its commission?
b. In the circumstances the act was committed, was it inherently
dangerous?
vi.
Independent Felony
Felony murder only applies to non-homicidal offenses every lesser homicidal
offense (manslaughter) would get turned into murder b/c in commission of felony and
a death occurs.
i. Following offenses cannot be used as basis for felony murder
conviction: MII, VMS, Assault (and its derivatives)
E.g. Can be charged w/ both assault w/ deadly weapon and MII, but cant use the
assault that resulted in the death as a predicate felony for a charge of FM.
vii.
Not in furtherance
1. Felony murder liability begins when theres an attempt and continues
even after the commission of a crime so long as its one continuous
transmission.
Think of chain of causation:
i. Must be attributable and not merely coincidental.
King v. Commonwealth pilots & marijuana smuggling. Plane crash, but not held for
murder b/c the felony of smuggling was not the proximate cause of the death.
Time requirement applies to act and NOT the actual death.
ii. Ends when reach place of relative safety
Killing must have been done by or by an accomplice or by one acting in furtherance
of crime
iii.
Cannot extend to lethal acts done by third-parties not in
furtherance of felony.
4. CAUSATION AND RESULTING HARM
A. Causation
i.
How far away from the wrongful act do we want to assign blame?
ii. Actual Cause (but for)
1. Whether result would have occurred in the absence of s conduct
when and as it did .
2. Was an indispensable link in the chain of causation? People v. Arzon
iii. Proximate Cause (legal cause)
1. Is the result a foreseeable consequence of s action?
This gets rid of any crazy, extraordinary events.
2. What must be foreseen?? Actual mechanism of harm [Warner-Lambert
chewing gum case] or possibility of harm?
a. There is no hard and fast rule for this use your spidey sense

21

iv.

22

3. Just because the events happen concurrently, dont automatically assume

you have proximate cause.
a. Whether as a matter of policy or expediency will be held responsible
for the result
4. If there was an extremely unremarkable and unusual result, then there
would not be proximate cause
a. Helicopters crash in midair Court held that it was reasonable to
foresee that a helicopter crash would result due to the car chase on the
ground People v. Acosta
b. started arson and firefighter died as a result of another fire in the
same building that there was no proof that started.
i. Court held was actual and proximate cause of death b/c but for
s conduct death wouldnt have existed AND the death was
entirely foreseeable from s conduct.
INTERVENING CAUSES
1. Under what circumstances should , who acts w/ requisite mens rea &
who commits a voluntary act that is a crime-in-fact of the social harm,
be relieved of criminal responsibility b/c of intervening cause? When
it SUPERCEDES the s cause.
2. Foreseeability of Intervening Cause
a. Responsive in response of the act; it does not relieve liability
b. Coincidental relieves the original wrong doer of liability unless the
intervention was foreseeable.
c. s mens rea trace the cause of social harm back through other
causes until we reach intentional wrongdoer
d. Apparent Saftey Doctrine s active force has come to rest in a
position of safety. The court will follow it no longer.
e. Free, Deliberate Human Action relieved of liability when
proximate cause is a free human intervention.
i. Vs choice to sleep outside after escaping from husband. Preslar
f. Omission is not a superseding even in case of father who failed o
intervene when child was getting beaten.
g. Simple Negligence is foreseeable at common law
i. Doctor is incompetent, can still be held liable b/c doctors
incompetence can be foreseen.
ii. The death must be a natural consequence of s own act
iii.
Same as above, but the doctor falls in love with the patients wife
and allows the patient to die so she will be available NOT
GUILTY
h. Gross Negligence or recklessness will break the chain of causation
i. Doctor provides grossly improper treatment beyond mere
negligence not guilty
i. takes the victim as he finds them
j. liable for heart attack of victim when trying to rob V
k. Intervention by Human Actor Rests on free will
3. Two Question to Ask when dealing with intervening cause:
a. Is the result foreseeable?
b. Was there intervention by a responsible human actor?

Were they free to make a choice? Were the actions of the 2nd actor
freely chosen or constrained by the 1st actor?
4. If participates in the final overt act that causes death, then murder
conviction is appropriate.
a. But where a is involved merely in the events leading up to the
commission of the final overt act, such as furnishing the means, a
conviction for murder is not appropriate.
i. Kevorkian case
ii. gave gun to suicidal friend NOT liable b/c lacked the actus reas
of murder; also, lacked the mens rea b/c hope isnt equivalent to
intention COULD have been recklessness or even super
recklessness
5. The death must be a direct and natural result for the charge of murder to be
appropriate
6. Regardless of whether the result of the intervening act is foreseeable
Independent voluntary action will break the chain of causation
i. Wifes choice to sleep outside on the cold night once she fled her
house and reached a zone of safety Preslar sleeping outside was
not foreseeable as a result of the s conduct
Involuntary or irresponsible action will not break the chain
7. If there is an active participation in the death by , then the may be
liable
a. Sexson held gun while wife pulled the trigger to commit suicide.
b. Kevorkian held not guilty b/c he merely gave the two victims the
means by which they could kill themselves.
8. Suicide when suicide follows wound inflicted by , his act is homicidal,
if deceased was rendered irresponsible by the wound and as a natural
result of it Rex v. Valade had sex w/ girl and she killed herself
If engaged in the commission of a felony, inflicts upon his victim both physical and
mental injuries, the natural and probably result of which would render the deceased
mentally irresponsible and suicide followed, he should be guilty of murder.
i. Stephenson v. state KKK grand dragon kidnaps girl and rapes her
over time period. He bites her, wound gets infected and she dies
after combination of factors (infected wound + poison to kill
herself) liable b/c victim was mentally irresponsible
v. MPC APPROACH:
1. Exclusive meaning of causation is actual cause
a. But for test is used to determine if there is actual cause
2. Proximate cause is used to determine culpability (MR)
5. EXTENSIONS OF CRIMINALITY
A. ATTEMPT
i.
Mens Rea
1. Must have SPECIFIC INTENT to commit the target offense in order to
be guilty of an attempt.
a. Smallwood case had HIV and raped Vs. Convicted of assault w/
attempt to murder; held not to have attempted murder b/c lacked
specific intent. Death by aids wasnt sufficiently probable as gunshot
to head. MERE RECKLESSNESS CANNOT PROVE INTENT
i.

23

b. Thacker case man shot into tent after woman refused him held
NOT attempted murder b/c couldnt prove intent to kill.
Why specific intent required?
c. You cant try to do something you dont intend to do
d. One who tries to commit a moral harm does it in a manner that is more
culpable than one who recklessly does it.
e. The act was likely to be followed be hurtful consequences.
2. Mens rea can be inferred from the circumstances
a. By direct admission by , acts, conduct, risk to V so great to assume
intent to kill
3. COMMON LAW TESTS
Preparation: An attempt is an act, done with intent to commit a crime
and tending, but failing, to effect its commission
Tending: to extent activity in a particular direction
ACT PLUS TESTS:
a Intent Plus Test: Attempt is completed when has the intent plus some
act.
i. Instead of looking at how close a is to completing the target
offense, look to see how clearly his acts bespeak of his intent
ii. All thats needed in proof of intent plus any act.
iii.
Problems? People might disagree as to what s intent is
iv. Look at how much movement there has been away from the
formation of the intent (looks at what has already been done and
how it establishes intent)
b. Equivocality Test: Attempt occurs when a persons conduct, standing
alone, unambiguously manifests the criminal intent.
i. Essentially: Intent + Unequivocal Act.
1. Eg. Watching the TV on mute and where conduct alone shows
actor committed the attempt
ii. How clearly the actions show the intention Act must be
unequivocal.
1. E.g. lighting a match next to a haystack then blows out once
knows hes being watched.
ACT MINUS TESTS:
a Last Act Test: Attempt takes place when performs last act to commit
the crime
iii.
Arson once the sets fire to the dwelling; Murder once they
pull the trigger; Theft once they start to remove the painting from
the wall
iv. Problems? Cant be sure intended to do it, Cant be sure wont
change his mindLocus perintiae; Last act doesnt give time for
police to intervene.
c. Proximity Test: Attempt takes place when commits an act that is
within sufficient proximity to the crime that it creates a reasonable
probability that the crime will occur. Actor has it within her power to
complete the crime almost immediately.

24

i.

People v. Rizzo intended to rob a man, but he couldnt find

him. Arrested by police before they found the man to rob and the
court said not guilty of attempt because never had the
opportunity to rob the man b/c he couldnt locate him.
ii. Spatial Proximity: must spatially have the opportunity to commit
the crime
iii.
Temporal Proximity: only time separates you from committing a
crime.
MPC APPROACH
d. Need (1) intent to do the conduct PLUS (2) a substantial step that
strongly corroborates the actors purpose
i. Substantial step = when action strongly corroborates w/ s intent
1. Lying in wait, searching for victim, etc.
e. Abandonment Defense:
i. Recognizes renunciation of criminal purpose if
1. abandons his effort to commit a crime or prevents it from
being committed; and
2. s conduct manifests a complete and voluntary renunciation of
his criminal purpose.
B. SOLICITATION
i.
Generally
Solicitation is the enticing, encouraging, or advising of another person to commit a
crime with the intent that the other person commit the crime.
ii.
Common Law
1. Mens Rea:
a. Specific Intent: intentionally committing the actus reas of the inchoate
offense he intentionally invites, requests, commands, hires, or
encourages another to commit a crime with the specific intent that
the other person consummate the solicited crime.
i. Jokes are not sufficient solicitation; even if X takes seriously
ii. Belief that solicited crime is possible is sufficient, even if factually
impossible
1. E.g. tells X to pickpocket, knowing pocket is empty = not
guilty under CL; however, if didnt know, guilty of
solicitation.
2. Actus Reas:
a. Complete the instant communicates to X, even if X doesnt commit
the offense after agreeing
i. Even if X refuses to perform
ii. Even if X agrees and doesnt commit the crime
b. If request is sent but never received, may be liable for attempted
solicitation.
i. Attempted, attempted conspiracy might not stick in some
jurisdictions.
3. Innocent or Responsible Agent:
25

a. No solicitation occurs if merely asks X to supply a gun so he can

commit the offense.
b. When agent is innocent, s guilt judged solely by the conduct of the
actor;
i. Tell X to pick up a TV from your friends house that you left
behind when youre actually having X steal it
c. When an agent is responsible (aware of plot), court uses accomplice
liability and is guilty to the same degree as the agent.
i. X knows you want him to steal it then youre both guilty of the
crime to the same degree.
ii. Solicit to murder and X does murder = both guilty of murder &
solicitation merges w/ murder.
iii.
Solicit to murder and X fails = Both guilty of attempted murder
and solicitation merges.
4. Solicitation as an Attempt:
a. One view is that solicitation is an attempt if it satisfies the attempt
standard
b. Other view is that solicitation is never an attempt
c. Sometimes also viewed as attempted conspiracy
i. But there can be a conspiracy with no solicitation.
MPC
d. Guilty if actors purpose is to promote/facilitate the commission of a
substantive offense; AND
e. With such purpose, he commands, encourages, or requests another
person to engage in conduct that would constitute the crime/attempt of
a crime or establish Xs involvement in commission/attempted
commission.
f. Guilty of actions committed by an accomplice.
i. No matter what acts the solicitor commits, he cannot be guilty of
an attempt because it is not his purpose to commit the offense
personally.
5. Merger Doctrine:
a. At common law, inciting or soliciting another to commit a crime was a
crime itself, independent of any other offense that either party might
commit.
i. Today, solicitation merges into the target offense
b. Under MPC, solicitation merges.
Defenses to Solicitation
COMMON LAW
c. Factual Impossibility Not a defense.
i. Said to occur when circumstances unknown to the actor or beyond
his control prevent consummation of the intended crime
ii. E.g. Pickpocketing but nothing actually in the pocket.
d. Legal Impossibility Defense
i. Said to occur where the intended acts, even if completed, would
not amount to a crime.
ii. Applies to circumstances where:
26

1. The motive, desire, and expectation is to perform an act in

violation of the law;
2. There is intention to perform a physical act;
3. There is a performance of the intended physical act; and
4. The consequence resulting from the intended act does not
amount to a crime.
a. Eg. People v. Jaffe
MPC
a It is no defense that, under the attendant circumstances, the crime was
factually or legally impossible of commission, if such crime could
have been committed had the attendant circumstances been as such
person believed them to be
e. Renunciation is a defense; however, actor must:
i. Completely and voluntarily renounce criminal intent; AND
ii. Either persuade the solicited party not to or otherwise prevent the
commission of the crime.
CASES
a State v. Davis: convicted of attempted murder because he planned to
have a womans husband killed so they could live together off the
insurance. He hired an ex-convict who was actually a police officer.
The police officer showed up at the s house and arrested him.
iii.
Court held that this was only preparation because the officer never
intended to actually kill the husband
f. U.S. v. Church: convicted of attempted premeditated murder of his
wife. Hired a hit man to kill his wife because he lost custody. Hit man
was actually an OSI agent. The agent staged the murder of his wife
and took every step possible to ensure wife would be killed.
i. Court applied the substantial step test and held that did take a
substantial step toward the commission of a crime
g. People v. Jaffe: convicted of receiving cloth belonging to someone
else, knowing that the property was stolen even though the property
wasnt actually stolen
i. Court held that even if thought it was stolen, it wasnt actually
stolen so his completion of the act did not amount to a crime.
(Factual impossibility)
h. People v. Dluglash: Bush shot Geller then shot Geller in the head
after an argument about rent. No absolute proof that Geller was dead
before shot him.
i. Court held that there wasnt sufficient evidence to show that
killed Geller, but there was sufficient evidence for attempt because
the jury concluded the did believe Geller was alive
C. CONSPIRACY
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
i.
Agreement could be express or tacit
27

1. Tacit something done or made in silence, understood although never

expressly stated
a. E.g. People join in after broken window at store and robbery
Tacit agreement may be found where there is:
i. A common scheme or plan; or
ii. Mutual aid or benefit.
Once the agreement is formed, some states require an overt act.
ii.
MPC Approach Four Types of Agreements:
1. Agree to commit an offense;
2. Attempt to commit an offense;
3. Solicit another to commit and offense; or
4. Aid another in the planning or commission of an offense
**Object of the agreement must be criminal.
iii.
Overt Act Requirement
1. COMMON LAW:
a. No Overt Act Required (however, statutes have typically added
requirement over time)
b. Satisfaction of Requirement:
i. Overt act requirement may be satisfied by acts that would
considered equivocal or merely preparatory in the law of attempts
c. Some states have required a more substantial overt act or a substantial
step towards commission of the crime
d. Circumstantial evidence is necessary to draw inferences about an
agreement that would be punishable as a conspiracy
i. E.g. Interstate Circuit case w/ movie theaters fixing prices.
Court found proof of agreement b/c letter was addressed to all 8
parties despite it not referring the agreement
MPC:
e. Overt Act in furtherance is necessary for conspiracy to commit a
misdemeanor or 3rd degree felony;
f. Over act not required for first and second degree felonies
Mens Rea
g. Must enter into agreement purposefully for it to be a conspiracy
h. Court requires:
i. Knowledge of illegal use; AND
ii. Intent for use to further crime:
1. Direct evidence of intent (purpose)
iii.
Intent (purpose) implied from knowledge; or
iv. Knowledge alone where serious crime.
i. Minority View inference of intent (purpose) drawn from knowledge
of criminal use does not apply to the less serious crimes classified as
misdemeanors
j. Explicit agreement implies purpose
k. If there is a tacit agreement can establish purpose if there is:
i. Knowledge of use and intent to aid
ii. Intent to aid inferred under certain circumstances
iii.
Knowledge sufficient under some circumstances
2. MPC:
28

a. Requires purpose
i. Even if purpose is not an element of the target offense.
b. A conspiracy doesnt exist if a provider of goods or services is aware
of, but doesnt share persons criminal purpose for the goods or
services.
c. Inferring Intent from Suppliers:
i. Purpose may be implied from knowledge where:
1. acquires a stake in the venture (e.g. grossly inflated rate)
2. No legitimate use for the goods or services supplied by the
3. Grossly disproportionate demand for the s services
3. Conspiratorial Liability:
a. Conspirator is separately liable for any reasonable foreseeable
substantive offense committed in furtherance of the conspiracy
i. Dont have to know about the offense
b. An overt act of one partner may be the act of all without any new
agreement specifically directed to that act
c. The criminal intent to do the act is established by the formation of the
conspiracy
i. If youre in for a dime, youre in for a dollar.
d. This is often called Pinkerton liability
e. Under Pinkerton Doctrine, a party is liable for any act (even not
within the scope of agreement) of the group if:
i. It was committed in furtherance of the conspiracy
ii. It is a foreseeable consequence of the unlawful agreement.
f. MPC:
i. MPC REJECTS PINKERTON
1. Not liable for conduct of another solely b/c he conspired w/
that person to commit an offense.
ii. Conspirator is vicariously liable for crimes committed by coconspirators only when the conspirator had the same intent and
purpose as the co-conspirator who committed the crimes.
1. Based on accomplice liability
iii.
Accomplice liability only applies where the accomplice
specifically intends the criminal act
1. Have to know about the offense.
2. Accomplice liability may arise by:
3. Solicitation, Aiding, Agreeing to aid, or attempting to aid.
D. Cases
1. People v. Lauria: In an investigation of call-girl activity, the police
focused their attention on three prostitutes actively plying their trade on
call, each of whom were using the s telephone answering service,
presumably for business purposes. The and the 3 prostitutes were
indicted for conspiracy to commit prostitution
a. Insufficient evidence to infer an intent of purpose to further the crimes
of the prostitutes through use of s service
2. Pinkerton v. United States: Walter and Daniel Pinkerton were indicted for
violations of the Internal Revenue Code. It is argued that there was
29

insufficient evidence to implicate Daniel in the conspiracy because there

was no evidence that Daniel agreed to allow acts to go forward or that he
took part in the commission of the offenses. He just agreed generally to
engage in this category of acts in the past
a. Court held that even if Daniel wasnt directly involved, he did conspire
to commit crimes of this sort and was liable for his brothers crimes
3. State v. Bridges: There was a party and got into an argument with
another guest and left to get back up. When he returned with 2 friends, a
fight broke out and the friends began shooting into the crowd and an
onlooker was fatally shot.
a. It was foreseeable that someone would be killed due to s agreement
with the two friends to fight another person at the party
E. Plurality Requirement
i.
COMMON LAW:
1. Must have two or more people
2. Must show MR on two grounds:
a. Intent to agree
b. Specific intent that the object of their agreement be achieved
c. There is no conspiracy if one of the parties lacks specific intent to
commit the target offense
3. One conspirator isnt automatically relieved just because the other coconspirators were acquitted.
ii.
MPC APPROACH:
1. Focuses on the culpability of the individual actor, despite conspiracy being
a group offense.
2. No defense that the person with whom the actor agreed
Has not been/cant be convicted or is acquitted
3. Adopted in most states
F. Multiple Conspiracies
i.
How many conspiracies?
1. Co-conspirators dont need to know of the existence of the other
conspirators nor participate in every detail.
2. HOWEVER, must have awareness of general scope and objective of the
co-conspirators
a. Knowledge of each player WAS sufficient for ONE conspiracy US v.
Bruno
3. Conspiratorial liability will hold every member of a single conspiracy
liable for the acts of all co-conspirators
a. If it is decided to be multiple conspiracies, the co-conspirators will
only be liable for the acts within their individual conspiracies
ii.
Scope of Conspiracy?
1. Common Interest?
2. Common gain of success?
3. Cooperation between the parties?
4. Are links w/ other parties foreseeable?
iii.
MPC APPROACH

30

1. MPC focuses on the individuals intent, thus no definitive answer to

how many conspiracies there are.
If there is knowledge that a person with whom he conspires to commit a crime has
conspired with another person or persons to commit the same crime, whether or not
he knows of their identity
iv. Cases
1. Kotteakos v. U.S.: Brown served as a broker for 31 persons in obtaining
fraudulent loans. The loan recipients were part of 8 or more independent
groups, none of which had any connection with any other group except
that each used Brown as its Broker.
a. Court had to decide whether the 32 defendants were part of a single
conspiracy with Brown at the hub or if there were 8 or more
individual, smaller conspiracies
2. Anderson v. Superior Court (abortion clinic and referrals by other women)
a. Prime example of a wheel conspiracy
v. Merger Doctrine:
1. Common Law:
a. Attempts merge into T.O.
b. Solicitation to join conspiracy merges into conspiracy
c. Solicitation to commit target offense merges into target offense
d. Conspiracy DOES NOT MERGE.
2. MPC
a. Same as C.L.; however, Conspiracy DOES merge into Target Offense.
vi.
Defenses:
1. Impossibility:
a. Impossibility is NOT a defense at common law or under MPC
2. Abandonment:
a. Common Law:
i. Once conspiracy offense is complete, abandonment of the criminal
plan by a party to the conspiracy is not a defense to the conspiracy
1. Abandonment, however, may allow a to avoid liability for
subsequent crimes committed in furtherance of the conspiracy
by the former co-conspirators
ii. Strict requirement for abandonment
1. Abandoning party must communicate withdrawal to each of
her fellow co-conspirators
2. Some require to completely dissuade others from pursuing
their criminal objectives
MPC:
iii.
Affirmative defense of renunciation of criminal purpose and
thwarting the success of the conspiracy under circumstances
demonstrating complete and voluntary renunciation of criminal
intent.
Insufficient to merely withdraw, must also negate danger of the group.
b. Renunciation:
c. CL no defense to crime of conspiracy

31

d. MPC complete defense, only if renunciation of actors criminal

purpose & actor succeeds in prevention of criminal objectives.
6. EXCULPATION
A. SELF-DEFENSE
i.
Elements:
1. Unlawful force
2. Immediate (imminent) threat
3. Threat of bodily harm (death or SBI)
4. Use of force must be reasonable
5. Use of force must be necessary
6. Use of force may not be excessive
ii.
Imminence:
1. Immediate danger that cannot be guarded against by calling for help
a. s subjective belief of what might be inevitable at some indefinite
point in the future does NOT equate to what she believes to be
imminent
2. Inevitable harm is not the same as imminent harm reasonable fear of
future harm doesnt authorize a to kill
Could also be argued that it doesnt matter if the threat was in fact imminent, but
whether the s belief in the impending nature of the threat, given the circumstances
as she saw them was reasonable in the mind of a person of ordinary firmness
3. MPC Approach:
a. Relaxes the imminence requirement
b. Self-defense can be available if the actor reasonably believed that the
use of self defense was immediate necessary
iii.
Reasonable Belief:
1. A person may not use deadly force upon another person unless he
reasonably believes that such other person is using or about to use deadly
physical force or he reasonably believes that such other person is
committing or attempting to commit a kidnapping, forcible rape, forcible
sodomy or robbery
2. Common Law:
a. Objective Test:
i. Reasonable belief that the other party is using or about to use
deadly force is determined by objective standard
3. MPC:
a. Subjective Test:
i. Under subjective standard, determination of reasonableness must
be based on the circumstances facing a or his situation.
ii. Circumstances include
1. Any relevant knowledge the had about the person
2. Physical attributes of all persons involved, including the
3. Any prior experiences he had which could provide a reasonable
basis for a belief that another persons intentions were to injure
or rob him or that the use of deadly force was necessary under
the circumstances
32

b. The MPC standard is wholly subjective. Self-defense is available when

believes force was necessary
i. A person will use defensive force whenever they believe its
necessary. A wholly subjective test excuses this conduct
c. Two Concerns
Bad faith claims: a lot of people will claim they were in fear for their life when they
werent
Idiosyncratic beliefs are allowed (beliefs that are not typical but instead are peculiar
to that person alone)
d. Objective/Subjective Test: reasonable person in s situation.
iv. Deadly Force:
1. Common Law
a. In order for a to be able to use deadly force, the aggressor must use
or intend to use deadly force (or person knowingly creates substantial
risk of GBH)
i. If the does not use deadly force, he can hold his ground, whether
the attack is deadly or not
b. Before use of deadly force, the must attempt retreat
i. Need not retreat unless knows he can do so in complete safety
ii. does not have to retreat if attacked at home (castle exception)
2. MPC:
a. Deadly force is unjustifiable unless the actor believes that such force is
immediately necessary to protect himself on the present occasion
against
i. Death
ii. Serious bodily harm
iii.
Forcible rape, OR
iv. Kidnapping
Aggressors may not use deadly force
v. Limits on the Use of Deadly Force
Defender can use deadly force only in response to a threat of death, SBH, kidnapping,
or sexual intercourse compelled by force or threat
vi. Battered Woman Syndrome
1. Elements
a. believed she could not escape her husband
b. believed she could not expect help from others
c. was threatened by her husband
d. s husbands abuse of her had worsened prior to his death
2. Perfect Self Defense
a. @ time of killing, believed it was necessary to kill and save
from imminent death or GBI
b. Must be reasonably believed it to be necessary
c. Justified > no punish
3. Imperfect Self Defense
a. started aggression and other party raises confrontation to point
where self-defense is necessary
33

4.

5.

6.

7.

34

b. was lacking one of the elements of self-defense such as imminent

threat, unlawful force, or necessity
c. Not justified > lesser punishment
Imminence Requirement
a. When torture appears interminable and escape impossible, the believed
that only the death of the batterer can provide relief may be reasonable
in the mind of a person of ordinary firmness
b. Some courts have loosened the imminence requirement
i. A threat, or its equivalent, can support self-defense when there is a
reasonable belief that the threat will be carried out
Reasonableness and BWS
a. Factors used to determine if BWs actions were reasonable, thus
allowing a defense of BWS
i. Was it reasonable for the BW to stay in the abusive relationship?
ii. Was it reasonable for the BW not to seek help?
iii.
Was it reasonable for the BW to think she might be killed on the
homicidal occasion?
iv. Was it reasonable for the BW to kill?
MPC Approach:
a. Relaxes the imminence requirement
b. Self-defense can be available if the actor reasonably believed that the
use of defensive force was immediately necessary
i. Threat must be immediately necessary
1. Must think its the only opportunity to save themselves
Retreat
a. Only required to retreat if knows he can do so in complete safety
(subjective standard)
b. MPC APPROACH
i. If he does not resort to a deadly force, one who is assailed may
hold his ground whether the attack upon him be of a deadly or
some lesser character
ii. You can stand your ground and refuse to retreat but you cannot use
deadly force even if theres deadly force used against you
iii.
Requires retreat only if its your intent to use deadly force and only
if you know you can retreat in complete safety
1. Deadly force is not justifiable if the actor knows that he can
avoid the necessity of using such force with complete safety by
retreating
c. The Castle Exception
i. In jurisdictions requiring retreat before deadly force may be used,
an exception is made when the is attacked in his own home by an
intruder
ii. Guests
1. Only a few states would require the homeowner to retreat if a
guest is the assailant
iii.
The great majority allow the homeowner to kill in self-defense
iv. Co-Occupants

1. You do not have to retreat and can use deadly force if the
assailant is a co-occupant unless
a. The is the initial aggressor, or
b. The assailant is co-worker and they are at their place of
work
d. Fla. Rule
i. No need to retreat before using deadly force (use of deadly force
must otherwise be authorized)
ii. May stand your ground outside of your home
iii.
Unlawful and forceful entry presumed to be a threat to life and
safety
iv. Policy Issues
1. There is a social benefit of having people retreat and avoid
deadly confrontations
2. The law wants to encourage peace
3. But, individuals also have a right to refuse to yield to
intimidation
Initial Aggressor
e. Common Law
i. Initial Aggressor has no right to self-defense, even in unlawful
force is being used against him.
ii. If the initial aggressor withdraws from the conflict and returns
everything to a neutral position and then the originally aggrieved
party escalates it from a neutral position to a confrontation, then
the originally aggrieved party becomes the aggressor and is not
justified in self-defense
iii.
In a few states, the nonlethal aggressor can regain his right to selfdefense if he is met by an excessive, life-threatening response,
provided that he then exhausts every reasonable means to escape
such danger other than the use of deadly force
iv. Most states deny the initial aggressor a defense of self-defense
1. Only choices are to run, forgo self-defense, or to fight back
unlawfully
v. Some states also say that the commission of any crime causally
related to the fatal result will forfeit the privilege of self-defense,
even when the crime itself does not provoke the victims
threatening conduct (Mayes v. State)

vii.
35

f. MPC
i. There can be no use of force in self-defense if you are the initial
aggressor
ii. The initial aggressor can use force in self-defense if the returned
force is excessive, unless
1. provoked conflict with the purpose of causing death or SBH
iii.
If D is the aggressor, he may regain the right of self-defense if he
breaks off the struggle, and V continues to threaten him
Other Issues of Self-Defense

viii.

36

1. Defense of Others:
a. Can use force to prevent attack on another under same circumstances
as self
b. May use force in defense of others when reasonably believes
others are in imminent danger of unlawful bodily harm and the use
of force is necessary
c. Alter Ego Rule
i. Right to use force for 3rd party is 3rd party would have the right to
use force.
ii. MPC rejects this rule
d. MPC
i. Three conditions justify force to defend others force must not
exceed that justified by self-defense
1. Under circumstances as believed by D, X would be justified in
self-defense
2. D believes intervention is necessary for Xs protection
3. D is not required to retreat before defending X, but required to
secure Xs retreat if X would be required to retreat under selfdefense rules (if D knows X can reach complete safety)
ii. Not required to retreat in others dwelling/place of work to greater
extent than required to retreat in own
2. Risk of Injury to Others:
a. If the circumstances are such that they would excuse the killing of an
assailant in self-defense, the emergency will be held to excuse the
person assailed from culpability, if in attempting to defend himself he
unintentionally kills or injures a third person
b. This is based on theory of transferred justification
i. Just like there is transferred intent, there is transferred justification
ii. Justification transferred along with the intent, so that if the acting
in justified self-defense, shoots at assailant A and accidentally kills
B, the killing of B is deemed to be intentional but justified
c. What if it would be risky and reckless to act in self-defense because of
possible injury to others
i. If a reasonably believes that deadly force is necessary to avoid
death or SBH, he cannot be deemed reckless, regardless of the
extent to which he endangers innocent bystanders
ii. MPC says NO, actor cannot respond in any manner and with
whatever amount of force he chooses no matter whom he injures,
so long as he is justified in acting in self-defense
1. could be charged with reckless endangerment or homicide if
bystander dies
Cases
1. People v. Goetz: Man kills four youths on the subway after they
demanded $5 from him. He shot them all purposefully even after they
werent posing a threat to him anymore.
a. Court held that jury should have been instructed that reasonable
belief was an objective belief

2. State v. Norman: Wife was abused by her husband for 20 years in various
ways such as forcing her to eat dog food, punching her, and kicking her.
He also threatened to kill her. She tried to get away but couldnt and she
then killed him while he was sleeping.
a. Case was lacking imminent threat and necessity. Court held that the
was sleeping so there was no imminent threat and it wasnt necessary
to kill him to protect herself at that time
b. Court also held that this was an opportune killing. She lied in wait
until she had an opportunity to kill him. (Could be viewed as MI, with
premeditation but reduced to VMS because there was provocation)
3. Jahnke v. State: badly abused 16 year old boy killed his father after lying
in wait for him and shooting him without warning
a. Court convicted him of VMS and held that he had imperfect selfdefense (no imminence)
4. State v. Schroeder: 19 year old stabbed his older cell mate while he was
sleeping because the cell mate had threatened to sell the s debt to
someone else to make him a punk and that he might get up in the night and
collect some of his debt.
a. Court held that his attack on the cell mate was a preventative assault
and that it would be too dangerous to legalize preventative assaults
involving the use of deadly force where there has been nothing more
than threats
5. Ha v. State: Victim, Buu, beat the severely and was pulled away by
bystanders. He returned again and tried to hit the with a hammer and
was pulled away again. Buu threatened multiple times to kill the .
stayed up all night and then decided to kill Buu because he knew Buu
would carry out the threats and he didnt think the police could help him.
He killed Buu as soon as he got the opportunity.
a. Court upheld that inevitable harm is not imminent harm and does not
justify killing an enemy
6. State v. Abbott: Neighbors argued over a doorstop and Abbot threw the
first punch even though he wasnt the initial aggressor. Nicholas wielded a
hatchet and Abbott claims he wrestled the hatched away form him but did
not use it. Abbott actually was the one who injured everyone with the
hatchet.
a. Court embraced the MPC rule and held that Abbott had a duty to
retreat
7. U.S. v. Peterson: Victim along with other people, was trying to steal s
windshield wipers. came outside and a confrontation ensued. went
inside his house and came out with a gun and threatened the victim, who
was retreating to his car. The victim did not heed s threats and shot
and killed the victim
a. Court did not allow him to claim self-defense because although the
victim was the initial aggressor, when the went into his home and
the victim retreated to the car, the who returned with a gun became
the initial aggressor
37

8. Mayes v. State: got into an argument with his girlfriend and his
girlfriend reached into her purse and he thought she was pulling out a gun,
so he shot her with his gun. He did not have a license to hold the gun.
a. The court held that he had no right of self-defense because he
committed a crime by having the gun
b. But for his crime of having the gun, the victim would not have been
killed
B. Defense of Property Deadly force is never permissible to protect property
i.
Generally, rule is that a person may not use more force than necessary to
defend property.
ii.
Common Law
a. Deadly force allowed if the crime is a felony
Modern Rule
b. Deadly force is allowed if the crime is atrocious and there is a threat of
death or SBH
iii.
MPC
1. Deadly force is allowed if the crime is atrocious and there is a threat
of death or SBH AND
a. There is an invasion of an occupied dwelling OR
b. Invader uses deadly force or failure to use deadly force would expose
the to harm
iv. Case
1. People v. Ceballos: set up a trap gun in his home and a kid broke in with
the intent to steal and was shot in the face by the trap gun upon entry.
a. Court applied the modern rule and held was not allowed to use
deadly force
C. DURESS
i.
Traditional View:
1. Duress only applied when use of harm which is present, imminent, and
pending and of such nature as to induce a well grounded apprehension of
death or serious bodily injury
2. Future Harm? had duty to escape or seek assistance.
3. Look for whether it would escape moral culpability a push into the
criminal conduct rather than an enticing pull
ii.
Common Law:
1. Not a defense to murder
2. Defense if:
a. Present and imminent threat
b. Of D or SBH
c. To or another
d. Reasonable person could not resist. (Objective Std)
3. The threat of harm must occur immediately or so quickly its
impossible to escape.
4. Duress is generally an excuse and not justification
5. Duress not available for who put themselves in that position.
a. E.g. voluntarily joins a criminal organization w/ reasonable belief as
to subject her to threats at later time
38

iii.

39

MPC:
1. Defense if:
a. Threat of unlawful force
b. To or another
c. Reasonable person couldnt resist (Subjective Std)
2. A defense for who believed conduct necessarily to avoid the greater of
two evils.
3. Where the actor was coerced by threat or use of force that a person of
reasonable firmness would be unable to resist.
a. Subjective perspective tangible factors considered, but not
temperament.
4. MPC EXCUSES HOMICIDE.