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CRIMINAL LAW (PROF.

DAVID SKLANSKY):
FINAL EXAMINATION OUTLINE
DECEMBER 7, 2015

MATT A. GETZ
TABLE OF CONTENTS
I. BASIC PRINCIPLES OF THE CRIMINAL LAW ...................................................................... 1
A. PURPOSES OF PUNISHMENT ....................................................................................................... 1
i. Retributive (“Kantian”) Conceptions of Justice ............................................................................ 1
ii. Utilitarian (“Benthamite”) Conceptions of Justice ....................................................................... 1
B. THE LEGALITY PRINCIPLE AND FAIR NOTICE ................................................................................... 1
i. The Rule of Lenity ........................................................................................................................ 2
ii. Constitutional Prohibitions Against Vagueness ........................................................................... 3
C. NOTE ON LEGISLATIVE AND STATUTORY INTERPRETATION................................................................. 3
D. ACTUS REUS............................................................................................................................ 3
i. Thoughts ...................................................................................................................................... 4
ii. Omissions ..................................................................................................................................... 4
1. Misprison of felony ................................................................................................................. 5
iii. Possession .................................................................................................................................... 5
iv. Status ........................................................................................................................................... 6
E. MENS REA REQUIREMENT AT COMMON LAW ................................................................................ 6
i. Mistakes of Fact........................................................................................................................... 7
F. NOTE ON GENERAL AND SPECIFIC INTENT ..................................................................................... 8
G. LEVELS OF CULPABILITY AND THE MPC REFORMS ........................................................................... 8
i. Material Elements of the Offense for Levels of Culpability Analyses .......................................... 9
ii. Purpose ........................................................................................................................................ 9
iii. Knowledge ................................................................................................................................... 9
iv. Recklessness............................................................................................................................... 10
v. Negligence ................................................................................................................................. 10
vi. Interpretation and Construction ................................................................................................ 10
H. MALUM IN SE VS. MALUM PROHIBITUM .................................................................................... 11
I. STRICT LIABILITY OFFENSES ...................................................................................................... 11
J. IGNORANCE OF THE LAW ......................................................................................................... 12
K. CAUSATION ........................................................................................................................... 14
i. But-For / Factual Causation ....................................................................................................... 14
ii. Proximate / Legal Causation...................................................................................................... 15
1. Intervening Third-Party Actions ............................................................................................ 15
2. Exception for Involuntary Intervening Third-Party Actions .................................................. 16
L. NOTE ON PROSECUTORIAL DISCRETION ...................................................................................... 16
II. AUXILIARY DOCTRINES & INCHOATE CRIMES ................................................................ 16
A. ATTEMPT .............................................................................................................................. 17
i. Mens Rea ................................................................................................................................... 17
ii. Actus Reus.................................................................................................................................. 17
1. The Dangerous Proximity Test .............................................................................................. 17
2. The Equivocality Test............................................................................................................. 18
3. The Substantial Step Test ...................................................................................................... 18
iii. Note on Abandonment .............................................................................................................. 19
iv. Note on Impossibility ................................................................................................................. 19
B. AIDING AND ABETTING ............................................................................................................ 20
i. Mens Rea ................................................................................................................................... 20
1. Difficulties of the purpose requirement ............................................................................... 20
2. Reducing the purpose requirement for serious offenses ..................................................... 21
3. Substantive crimes of facilitation .......................................................................................... 21
4. Mens rea for results .............................................................................................................. 21
5. Mens rea for attendant circumstances ................................................................................. 22
6. The Luparello exception of reasonably foreseeable consequences ..................................... 22
ii. Actus Reus.................................................................................................................................. 23
iii. Attempted Complicity? .............................................................................................................. 23
C. SOLICITATION ........................................................................................................................ 23
D. CONSPIRACY.......................................................................................................................... 24
i. Actus Reus.................................................................................................................................. 24
ii. Mens Rea ................................................................................................................................... 24
iii. As a Form of Accessorial Liability............................................................................................... 24
iv. As a Separate Offense................................................................................................................ 25
III. AFFIRMATIVE DEFENSES & MITIGATING OR EXCULPATING DOCTRINES ..................... 25
A. UNCONSCIOUSNESS ................................................................................................................ 25
B. SELF-DEFENSE ....................................................................................................................... 25
i. Relevant MPC Provisions ........................................................................................................... 26
ii. The Imminent Danger Requirement .......................................................................................... 27
iii. Problems with the Objectively Reasonable Belief Standard ...................................................... 28
iv. Imperfect Self-Defense............................................................................................................... 28
v. Duty to Retreat, Stand-Your-Ground Laws and the Castle Doctrine ......................................... 28
vi. Forfeiture of Self-Defense as First Aggressor............................................................................. 29
vii. Protection of Property ........................................................................................................... 29
C. NECESSITY / CHOICE-OF-EVILS .................................................................................................. 30
i. Imminence or Emergency Requirements ................................................................................... 30
ii. Equitable Forfeiture (“Clean Hands”) ........................................................................................ 31
iii. Indirect Civil Disobedience ......................................................................................................... 31
iv. Clear Legislative Intent .............................................................................................................. 31
v. Homicide .................................................................................................................................... 31
vi. Medical Necessity ...................................................................................................................... 32
vii. Economic Necessity ............................................................................................................... 32
viii. Prison Escapes ....................................................................................................................... 32
D. DURESS ................................................................................................................................ 32
i. Relevant Model Penal Code Provision ....................................................................................... 32
ii. Various Levels of the Imminence Requirement ......................................................................... 33
iii. Homicide .................................................................................................................................... 33
iv. War Crimes ................................................................................................................................ 33
v. Contributory Fault...................................................................................................................... 33
vi. Other Disagreements in the Application of Duress.................................................................... 33
vii. Note on Historical and Current Comparisons Between Necessity and Duress ...................... 34
E. INTOXICATION ....................................................................................................................... 34
i. Relevant Model Penal Code Provision ....................................................................................... 34
ii. Caselaw Treatment of Evidence of Voluntary Intoxication........................................................ 35
iii. Involuntary Intoxication............................................................................................................. 35
F. INSANITY .............................................................................................................................. 36
i. The M’Naughten Test ................................................................................................................ 36
ii. The Davis Test ............................................................................................................................ 36
iii. The “Irresistible Impulse” Test ................................................................................................... 37
iv. The “Product” Test (Durham) .................................................................................................... 37
v. The MPC Substantiality Test ...................................................................................................... 37
vi. Issues with Criminality / Wrongfulness ..................................................................................... 37
vii. Issues “Mental Disease or Defect” ........................................................................................ 38
G. DIMINISHED CAPACITY & DIMINISHED RESPONSIBILITY .................................................................. 38
IV. HOMICIDE: TYPES & REQUIREMENTS ........................................................................ 38
A. MURDER .............................................................................................................................. 39
i. At Common Law ........................................................................................................................ 39
1. Grading of intentional killings ............................................................................................... 39
2. Unintentional “depraved heart” killings ............................................................................... 40
ii. Under the MPC .......................................................................................................................... 41
B. FELONY MURDER ................................................................................................................... 41
i. At Common Law ........................................................................................................................ 41
ii. Limitations to the Felony-Murder Rule ...................................................................................... 42
1. Inherently Dangerous Felonies ............................................................................................. 42
2. Merger Doctrine and Its Hiccups........................................................................................... 42
3. In Furtherance of the Felony ................................................................................................. 43
iii. Under the MPC .......................................................................................................................... 43
iv. Note on the Misdemeanor-Manslaughter Rule ......................................................................... 44
C. MANSLAUGHTER .................................................................................................................... 44
i. Involuntary Manslaughter (Wanton and Reckless) ................................................................... 44
1. At Common Law .................................................................................................................... 44
2. Under the MPC ...................................................................................................................... 44
3. Washington State: Simple Negligence Enough ..................................................................... 45
ii. Voluntary Manslaughter (Provocation) ..................................................................................... 45
1. At Common Law .................................................................................................................... 45
2. Under the MPC ...................................................................................................................... 46
3. Policy Arguments on the Provocation Defense..................................................................... 46
D. NEGLIGENT HOMICIDE / MISDEMEANOR MANSLAUGHTER ............................................................. 46
i. At Common Law ........................................................................................................................ 46
ii. Under the MPC .......................................................................................................................... 46
V. RAPE ............................................................................................................................ 47
A. ACTUS REUS FOR SEXUAL OFFENSES .......................................................................................... 47
i. At Common Law ........................................................................................................................ 47
ii. Note on the Marital Exception................................................................................................... 48
iii. Under the MPC .......................................................................................................................... 48
iv. Under International Law ............................................................................................................ 48
B. MENS REA FOR SEXUAL OFFENSES............................................................................................. 48
i. At Common Law ........................................................................................................................ 49
ii. Under the MPC .......................................................................................................................... 49
C. PROSECUTORIAL DISCRETION .................................................................................................... 49
D. STATUTORY RAPE ................................................................................................................... 50
i. At Common Law ........................................................................................................................ 50
ii. Under the MPC .......................................................................................................................... 50
TABLE OF CASES
Cases
Abbott (N.J. 1961) ................................................................................................................................... 28
Abbott (N.Y. 1981) ................................................................................................................................... 22
Acosta (Cal. App. 1991) ........................................................................................................................... 15
Acosta (N.Y. 1993) ................................................................................................................................... 19
Albrecht (Md. 1994) ................................................................................................................................. 40
Allen v. State (Okla. App. 1994) ............................................................................................................. 29
Anderson (Cal. 1968) ............................................................................................................................... 40
Arizona (U.S. 2006) ................................................................................................................................. 38
Atencio (Mass. 1963) ............................................................................................................................... 16
B (A Minor) v. Director of Public Prosecutions (U.K. 2000) ................................................................. 50
Balint (U.S. 1922) ................................................................................................................................... 11
Barker (N.Z. 1924)............................................................................................................................. 17, 18
Barnett (S.C. 1951) .................................................................................................................................. 44
Bateman (U.K. 1925) .............................................................................................................................. 44
Bell (Mass. 2009) ..................................................................................................................................... 18
Bell v. Boise (D. Idaho 2015) (Statement of Interest of the United States) .......................................... 6
Benniefield (Minn. 2004) .......................................................................................................................... 8
Bertling (8th Cir. 2007)........................................................................................................................... 24
Blake v. United States (5th Cir. 1969) ................................................................................................... 37
Borough of Southwark v. Williams (U.K. 1971).................................................................................... 32
Bradshaw (Wash. 2004)............................................................................................................................ 6
Brawner (D.C. Cir. 1972) ........................................................................................................................ 38
Brigham (Cal. App. 1989) ....................................................................................................................... 24
Bryant (N.C. 2005) .................................................................................................................................. 14
Burke (R.I. 1987) ..................................................................................................................................... 47
Burrage v. United States (U.S. 2014)..................................................................................................... 15
Burton (Cal. 1971) ................................................................................................................................... 42
Campbell (4th Cir. 1992) ........................................................................................................................ 21
Campbell (Mich. 1983) ............................................................................................................................ 15
Canola (N.J. 1977) .................................................................................................................................. 43
Canon (9th Cir. 1993) ............................................................................................................................. 22
Carroll (Pa. 1983) .................................................................................................................................... 39
Casassa (N.Y. 1980) ................................................................................................................................ 46
Ceballos (Cal. 1974) ................................................................................................................................ 29
Cheek v. United States (U.S. 1991) .................................................................................................. 13, 14
Chun (Cal. 2009) ..................................................................................................................................... 43
Contento-Pachon (9th Cir. 1984) ............................................................................................................ 33
Cordoba-Hincapie (E.D.N.Y. 1993) .......................................................................................................... 8
Crenshaw (Wash. 1983) .......................................................................................................................... 37
Cunningham (U.K. 1957) ......................................................................................................................... 7
Dauray (2nd Cir. 2000) ............................................................................................................................. 2
Davis v. United States (U.S. 1897) ......................................................................................................... 36
DiPetrillo (R.I. 2007) ............................................................................................................................... 47
Dlugash (N.Y. 1977) ................................................................................................................................ 20
Dotterweich (U.S. 1943) .......................................................................................................................... 11
Dudley and Stephens (U.K. 1884) ...................................................................................................... 1, 31
Eaton (Wash. 2010) ................................................................................................................................... 4
Elonis v. United States (U.S. 2015).......................................................................................................... 7
Erdemovic (ICTY 1997) .......................................................................................................................... 33
Faulkner (U.K. 1877) ................................................................................................................................ 7
Fischer (Pa. 1998).................................................................................................................................... 49
Fleming (4th Cir. 1984) .......................................................................................................................... 40
Fleming (C.M.R. 1957) ............................................................................................................................ 33
Fontes (Colo. App. 2003) ......................................................................................................................... 32
Forrest (N.C. 1987) .................................................................................................................................. 40
Fountain (7th Cir. 1985) ......................................................................................................................... 21
Freed (U.S. 1971)..................................................................................................................................... 12
Gardner (6th Cir. 2007) .......................................................................................................................... 22
Garnett v. State (Md. 1993) .................................................................................................................... 50
Girouard v. State (Md. 1991).................................................................................................................. 45
Gladstone (Wash. 1970) .......................................................................................................................... 20
Goetz (N.Y. 1986)..................................................................................................................................... 28
Guido (N.J. 1963) .................................................................................................................................... 38
Guthrie (W. Va. 1995) ............................................................................................................................. 40
Ha v. State (Alaska App. 1995) .............................................................................................................. 27
Hall (Colo. 2000) ..................................................................................................................................... 45
Hazelwood (Alaska 1997) ....................................................................................................................... 10
Hernandez (N.Y. 1993)............................................................................................................................ 43
Hicks v. United States (U.S. 1893) ................................................................................................... 20, 23
Hines v. State (Ga. 2003) ........................................................................................................................ 42
Holmes (Pa. 1842) ................................................................................................................................... 31
Hood (Cal. 1969) ...................................................................................................................................... 35
Hutchins (Mass. 1991) ............................................................................................................................ 32
Inmates of Attica Correctional Facility v. Rockefeller (2nd Cir. 1973) ................................................ 16
Ireland (Cal. 1969) .................................................................................................................................. 42
Jackson (2nd Cir. 1977) .......................................................................................................................... 18
Jaffe (N.Y. 1906)...................................................................................................................................... 19
Jahnke v. State (Wyo. 1984) ................................................................................................................... 27
James (5th Cir. 1976).............................................................................................................................. 24
Janes (Wash. 1993) ................................................................................................................................. 27
Johnson v. United States (U.S. 2015) ...................................................................................................... 3
Jones v. City of Los Angeles (9th Cir. 2006) ............................................................................................ 6
Jones v. State (Ind. 1997) ....................................................................................................................... 17
Jones v. United States (D.C. Cir. 1962) ................................................................................................... 5
Joyce (8th Cir. 1982) ............................................................................................................................... 19
Kern (N.Y. App. 1989) ............................................................................................................................. 16
King v. Commonwealth (Va. App. 1988).......................................................................................... 15, 41
Kingston (U.K. 1994)............................................................................................................................... 35
Lambert v. California (U.S. 1957).......................................................................................................... 14
Laney v. United States (D.C. Cir. 1923)................................................................................................. 29
Lauria (Cal. App. 1967) .......................................................................................................................... 24
Lefkowitz (Mass. 1985) ........................................................................................................................... 49
Leno (Mass. 1993) ................................................................................................................................... 31
Liberta (N.Y. 1984).................................................................................................................................. 48
Lovercamp (Cal. 1974) ............................................................................................................................ 32
Low (Cal. 2010).......................................................................................................................................... 4
Luparello (Cal. 1987) .............................................................................................................................. 22
Lyons (5th Cir. 1984) ........................................................................................................................ 36, 37
M.C. v. Bulgaria (ECHR 2003) ........................................................................................................ 16, 48
M’Naghten’s Case (U.K. 1843) ................................................................................................................ 36
Maher v. People (Mich. 1862) ................................................................................................................. 45
Malone (Pa. 1946).................................................................................................................................... 40
Marrero (N.Y. 1987) ................................................................................................................................ 12
Martin v. State (Ala. 1944) ................................................................................................................... 4, 6
Matos (N.Y. 1994).................................................................................................................................... 16
Mattison (Cal. 1971)................................................................................................................................ 42
McBoyle v. United States (U.S. 1931) .................................................................................................. 1, 2
McFadden (Iowa 1982) ........................................................................................................................... 15
McGee (N.Y. 1979) ................................................................................................................................... 25
McVay (R.I. 1926) .............................................................................................................................. 21, 22
Miller (Cal. 1935) .................................................................................................................................... 18
Mochan (Pa. 1955)..................................................................................................................................... 2
Morissette v. United States (U.S. 1952) ............................................................................................. 7, 11
Mulcahy v. The Queen (U.K. 1868) ........................................................................................................ 24
Newton (Cal. 1970) .............................................................................................................................. 4, 25
Norman (N.C. 1989) ................................................................................................................................ 27
Olsen (Cal. 1984) ..................................................................................................................................... 50
Peterson (D.C. Cir. 1973) .................................................................................................................. 25, 29
Phillips (Cal. 1966) ................................................................................................................................. 42
Pinkerton v. United States (U.S. 1946) .................................................................................................. 24
Pope v. State (Md. 1979) ........................................................................................................................... 5
Powell v. Texas (U.S. 1968) ...................................................................................................................... 6
Prince (U.K. 1875) ........................................................................................................................... 7, 8, 50
Reynolds v. State (Alaska App. 1983) .................................................................................................... 49
Rizzo (N.Y. 1927) ..................................................................................................................................... 17
Roberts v. People (Mich. 1870)................................................................................................................ 34
Robertson (Cal. 2004) .............................................................................................................................. 43
Robinson v. California (U.S. 1962) .......................................................................................................... 6
Roebuck (Pa. 2011) .................................................................................................................................. 22
Rojas (Cal. 1961) ..................................................................................................................................... 19
Root (Pa. 1961) ........................................................................................................................................ 15
Ross v. State (Md. 1987).......................................................................................................................... 40
Roy v. United States (D.C. App. 1995) ................................................................................................... 22
Rusk (Md. 1981) ...................................................................................................................................... 47
Russell (N.Y. 1998) .................................................................................................................................. 22
Ruzic (Canada 1998) ............................................................................................................................... 33
Sands (Va. 2001) ..................................................................................................................................... 27
Santillanes v. New Mexico (N.M. 1993) ................................................................................................. 10
Schroeder (Neb. 1978) ............................................................................................................................. 27
Scotti (2nd Cir. 1995) .............................................................................................................................. 24
Serné (U.K. 1887) .............................................................................................................................. 41, 42
Sherry (Mass. 1982) ................................................................................................................................ 49
Smallwood v. State (Md. 1996) ........................................................................................................ 17, 22
Smith (David) (U.K. 1974)...................................................................................................................... 13
Stamp (Cal. App. 1969)........................................................................................................................... 42
Staples v. United States (U.S. 1994) ...................................................................................................... 11
Stasio (N.J. 1979) .................................................................................................................................... 35
Sydnor v. State (Md. 2001) ..................................................................................................................... 30
Tally (Ala. 1895) ...................................................................................................................................... 23
Thacker v. Commonwealth (Va. 1922) ................................................................................................... 17
Thomas (Colo. 1986)................................................................................................................................ 17
Toscano (N.J. 1977) ................................................................................................................................. 33
Unger (Ill. 1977) ...................................................................................................................................... 32
Varszegi (Conn. App. 1993) .............................................................................................................. 13, 14
Veach (6th Cir. 2006) .............................................................................................................................. 35
Weiss (N.Y. 1938) .................................................................................................................................... 13
Welansky (Mass. 1944)............................................................................................................................ 44
Wilcox v. Jeffrey (U.K. 1951) .................................................................................................................. 23
Williams (Pa. 1938) ........................................................................................................................... 41, 44
Wilson (Cal. 1969) ................................................................................................................................... 42
X-Citement Video, Inc. (U.S. 1994) .................................................................................................... 7, 12
Young v. State (Ala. 1982) ...................................................................................................................... 40
I. BASIC PRINCIPLES OF THE CRIMINAL LAW
A. PURPOSES OF PUNISHMENT
Any coherent theory of punishment in the criminal law must justify three distinct facets of
punishment: (1) its general justifying aim: why set up institutions that impose punishment at all?
(2) distribution: why do we impose punishment on a given individual? and (3) degree: what
justifies and how do we arrive at the given appropriate punishment in any case?
i. Retributive (“Kantian”) Conceptions of Justice
This essentially backward-looking concept of justice focuses on when punishment must be
observed because it is deserved, i.e., when the culpable actions of those who committed crimes
must be punished therefore. This is inherently tied to the individual culpability of the victim
and gives short shrift to the considerations of the society at large and especially the questions
of social utility discussed below. It’s also closely tied to the harm done and is focused on
retributive and, depending on the perspective, restorative accounts of justice.
Note that one cast of what has been called the “expressive” view of criminal justice could
be understood as society’s public rejection of criminal behavior and its maintenance of the
moral guides that restrain and govern society (Durkheim). It can be retaliatory, as in James
Fitzjames Stephen’s writing.
ii. Utilitarian (“Benthamite”) Conceptions of Justice
Recognizing that punishment and deprivation of freedom or property is a mischief in and
of itself, utilitarian thinkers look to the negatives and positives of punishment in order to justify
its imposition. This normally focuses on the values of specific and general deterrence and is
willing to consider costs of imprisonment and punishment against the potentially rehabilitative
aspects of punishment.
The Hart and Durkheim writings on the public value of expressive punishment could also
be portrayed as within the utilitarian ideas of justice, particularly insofar as publicly expressive
forms of judicial condemnation may add to the social fabric and improve the moral concepts at
the heart of a polity.
Consider the ways in which Dudley & Stephens, discussed in greater detail infra, frame the
relevant considerations for how punishment should be levied against an individual—
blameworthiness? nature of the harm caused? proportionality? expressive justice? deterrence?
B. THE LEGALITY PRINCIPLE AND FAIR NOTICE
One of the essential principles of the criminal law is nulla poena sine lege: no
punishment without law, or what is known as the legality principle. At the heart of this
principle is essentially an understanding of fair notice, that people must be able to discern what
is a crime in order to guide their actions (but see the discussion on ignorance to the law below). It
also focuses on the prevention of arbitrary or inconsistent enforcement; it prevents vagueness and
ensures consistency.
An illustration is McBoyle v. United States (U.S. 1931) (p. 154), where Justice Holmes’
opinion about a man charged with stealing an aircraft under a statute ambiguous as to whether
it included modern aircraft as a “vehicle” wrote: “it is reasonable that a fair warning should be
given to the world in language that the common world will understand, of what the law intends
to do if a certain line is passed.” (Note that this is, in effect, the “stronger” version of the rule of
lenity discussed infra.)

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Courts are traditionally reluctant to create new common law crimes, and many states have
now made it impossible to do so. E.g. Justice John Marshall said that the legislature, not the
courts, must define a crime and ordain a punishment. Cf. Commonwealth v. Mochan (Pa. 1955)
(p. 150), where the court created a new common law offense of lewd harassment over the
telephone, relying on the principle that the common law is broad enough to publish any conduct
injurious to the public and requiring state intervention. (But see the dissent in Mochan, which
agues against creating a new common law offense, calling this judicial activism better reserved
for the courts.) The states that still allow creation of common-law crimes include Florida, New
Mexico, and Michigan.
i. The Rule of Lenity
The rule of lenity states that a court, when construing an ambiguous criminal statute,
should resolve the ambiguity in favor of the defendant, or in favor of the more lenient
punishment. It has had two central uses in the past. First, it has been broadly used to exclude
judicial speculation as to the legislative intent or context and to urge a narrow interpretation
of text (Scalia). More significant and in its weaker version, it is used as a last-resort option to
“break a tie” in an ambiguous statute in favor of the defendant, after the other tools of statutory
interpretation have been utilized. See, e.g., United States v. Dauray (2nd Cir. 2000) (p. 155),
where the judgment against defendant charged with possessing child pornography was
overturned because the statute could not reasonably be interpreted against the defendant.
Noting that the rule of lenity ensures fair warning by resolving ambiguity as to apply it only
to conduct clearly covered (thus serving the legality principle), the court felt it could only guess
as to the meaning (over, though, a strong dissent). For the stronger version of the rule of lenity
in application, see McBoyle v. United States (U.S. 1931) (discussed supra).
Note, though, that the rule of lenity was a common law principle and need not necessarily
be followed. Section 1.02(3) of the Model Penal Code, for instance, requires interpretation of
language when differing constructions are possible in furtherance of the general purposes of
specific purposes of each section of the Code, the list of which is included:
MPC § 1.02(2):
(2) The general purposes of the provisions governing the sentencing and
treatment of offenders are:
(a) to prevent the commission of offenses;
(b) to promote the correction and rehabilitation of offenders;
(c) to safeguard offenders against excessive, disproportionate or arbitrary
punishment;
(d) to give fair warning of the nature of the sentences that may be imposed on
conviction of an offense;
(e) to differentiate among offenders with a view to a just individualization in
their treatment;
(f) to define, coordinate and harmonize the powers, duties and functions of the
courts and of administrative officers and agencies responsible for dealing with
offenders;
(g) to advance the use of generally accepted scientific methods and knowledge
in the sentencing and treatment of offenders;
(h) to integrate responsibility for the administration of the correctional system
in a State Department of Correction [or other single department or agency].

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ii. Constitutional Prohibitions Against Vagueness
A further dynamic in the general principles of fair notice and the legality principle is that
the Supreme Court has held that the substantive due process rights awarded to individuals
through the Fifth and Fourteenth Amendments includes the right to specific, identifiable laws.
See Johnson v. United States (U.S. 2015) (handout), where the opinion authored by Scalia
ruled that the residual clause of the Armed Career Criminal Act was unconstitutional because
it was overly vague. The court relied on its finding in Kolender v. Lawson that the test for
constitutionally prohibited vagueness is when a law is so vague that it “fails to give ordinary
people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary
enforcement.”
In an examination, when given a statute, examine both its specificity and the ways that a
court might resolve ambiguity. In cases of parity between two possible contexts, consider
mentioning Johnson.
C. NOTE ON LEGISLATIVE AND STATUTORY INTERPRETATION
While we did not closely cover many of the principles of statutory interpretation of
examinations of legislative intent, we did briefly discuss an order in which courts might consider
the meaning of a criminal statute:
(1) examine the legislative history;
(2) utilize canons of construction, e.g. noscitur a sociis (“the meaning of an unclear word
or phrase, esp. one in a list, should be determined by the words immediately surrounding it”);
ejusdem generis (“when a general word or phrase follows a list of specifics, the general word or
phrase will be interpreted to include only items of the same class as those listed”) (but cf. the Karl
Llewellyn article on canons of statutory interpretation);
(3) the principle of lenity discussed supra;
(4) avoid absurdity;
(5) give language the effect that an ordinary reading or plain language would require;
(6) consistent with prior and subsequent amendments to the statute; and
(7) assume a continuation of underlying common law principles.
D. ACTUS REUS
Actus reus signifies the requirement in the criminal law that, for a crime to be committed, it
must be accompanied by a volitional act, a voluntary action, on the part of the criminal. As codified
in the Model Penal Code:
MPC § 2.01:
(1) A person is not guilty of an offense unless his liability is based on conduct
that includes a voluntary act or the omission to perform an act of which he is
physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion; (b) a bodily movement during unconsciousness or
sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a
bodily movement that otherwise is not a product of the effort or determination
of the actor, either conscious or habitual. . . .
The notes to the MPC section quoted above call the actus reus requirement “the fundamental
predicate for all criminal liability, that the guilt of the defendant be based upon conduct, and that

Page 3
the conduct include a voluntary act or an omission to perform an act of which the defendant was
physically capable.”
The actus reus principle influences the criminal law in three major ways: (1) in the drafting
of statutes, (2) in the interpretation of statutes, and (3) in constitutional restrictions on how laws
may be framed.
Generally, without commission of a voluntary act (in the broad sense of volitional and not
unconscious; i.e., it does it not include conceptions of pressure, coercion, and so forth), there can
be no offense. The classic case is Martin v. State (Ala. 1944) (p. 205), in which Martin was
forcibly removed from his home, brought to the highway, and then charged with a crime under a
statute requiring a person, while intoxicated to “appear in any public place.” The court held that
a voluntary appearance is presupposed because of the actus reus principle; since he was
involuntarily and forcibly carried to that place, he could not be convicted. (Sklanksy’s point was
that the court really didn’t “interpret” the statute as including voluntary appearance, but rather
reading it into the statute.) See also People v. Newton (Cal. 1970) (p. 207), where the court
reversed the conviction of Huey Newton for voluntary manslaughter on grounds that he was
involuntarily unconscious during the commission of the offense. Unconsciousness, they held, is a
complete defense to a criminal homicide charge: refusal to instruct the jury on involuntary
unconsciousness was prejudicial error. (Newton and Martin flesh out two contours of the
“involuntary” concept, though this is not entirely clear.)
The extension of the actus reus requirement, however, has never been clear; while
unambiguously unconscious actions cannot be the basis for crimes, it is not clear that “voluntary
actions” require much on the part of a defendant. Compare People v. Low (Cal. 2010) (p. 206)
(in which the California court held a defendant guilty for bringing controlled substances into jail
because, while he had merely been brought into custody with the drugs in his sock, he could have
availed himself of the opportunity to tell officers he had the drugs), with State v. Eaton (Wash.
2010) (p. 206) (under identical facts, Washington reversed the conviction, relying on the fact that
the defendant had no true choice available to him, and thus failing to give weight to the
voluntariness requirement would produce “absurd” results incompatible with principles of
criminal responsibility).
Nor is it particularly clear that “voluntary” is the correct way to think about the actus reus
requirement, as the Low–Eaton dispute above demonstrates.
Note, finally, that further questions related to actus reus will be discussed in greater detail
in separate subsections below.
i. Thoughts
Central to the actus reus requirement is the principle cogitationis poenam nemo patitur,
or “no one is punished for thoughts alone.” There are several justifications for this, including
both the retributive culpability-focused elements of crime, the failure of deterrence for
involuntary actions, et cetera. For a discussion of the philosophical underpinnings of the
cogitationis principle, see the casebook at pp. 216–18. (Generally, on any test, whether that of
deterrence, moral culpability, or utilitarianism, it is difficult to see how punishment for
thoughts could be allowed.)
ii. Omissions
Generally speaking, an omission is not an act meriting the imposition of criminal liability.
This is a longstanding principle of criminal law and, in a somewhat broad way, is reflective of
both philosophical and practical concerns (it is difficult to draw clear lines for omissions, and
people are generally not responsible for the conduct of others).

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In narrow circumstances, however, omissions can constitute criminal acts. Under the
Model Penal Code, for instance:
MPC § 2.01(3):
Liability for the commission of an offense may not be based on an omission
unaccompanied by action unless: (a) the omission is expressly made sufficient
by the law defining the offense; or (b) a duty to perform the omitted act is
otherwise imposed by law.
Consider, for instance, Jones v. United States (D.C. Cir. 1962) (p. 218), where the court
was charged with considering the involuntary manslaughter of an infant. It set out four
situations in which failure to act could constitute breach of a legal duty and thus subject a
defendant to criminal liability without an action:
1. A statutorily imposed duty of care to another (e.g., Minnesota’s, Rhode Island’s, and
Vermont’s duty-to-rescue statutes);
2. Standing in a certain status relationship to another (e.g., parent-child, husband-wife,
master-apprentice, crew-passengers, innkeeper-customers).
3. Contractual duties of care to another; or
4. Voluntary assumption of the care for another and thereby seclusion of that injured
party from potential assistance rendered by others.
The court in Jones held that it was a question for the jury whether the defendant had a
legal duty of care extending over the ten-month-old baby. Cf. Pope v. State (Md. 1979) (p.
219), where the court held that there was insufficient evidence to support the allegation that
Pope, defendant, had a duty of care with respect to the decedent infant (who had been beaten
and torn to shreds by her mother); in spite of the feeling of outrage or indignation, that the law
must not hold defendants criminally liable unless they had a duty of care over the decedent.
The U.S. perspective on bystander indifference contrasts that of the European general
duty to aid a person in distress.
1. Misprison of felony
Consider 18 U.S.C. § 4, codified in 1909: “Whoever, having knowledge of the actual
commission of a felony cognizable by a court of the United States, conceals and does not as
soon as possible make known the same to some judge or other person in civil or military
authority under the United States, shall be fined under this title or imprisoned not more than
three years, or both.” This statute requires a greater level of criminal assistance,
concealment, rather than mere failure to report, but even so it is a generally disfavored
statute, not codified many places, abolished in others.
iii. Possession
Unlike the case of omissions, supra, the answer to the question “is possession an “act” such
that a defendant can be held guilty?” is yes: possession is, in many contexts, a crime, and in
such cases the mere act possession for a given period of time is enough. The interesting question
is what happens if possession is unknown to the defendant, or if the defendant was forced to
take possession of something (or learned that he possessed it) but had not yet had a chance to
safely dispose of the item. The Model Penal Code seems to have a relatively high bar for
possession, as it holds that the defendant had to know he procured the item or, once he found
out, possessed it long enough that he could have terminated his possession.
MPC § 2.01(4):

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Possession is an act, within the meaning of this Section, if the possessor
knowingly procured or received the thing possessed or was aware of his control
thereof for a sufficient period to have been able to terminate his possession.
Note all courts agree with the requirement that a defendant be aware of the item in his
possession. E.g. State v. Bradshaw (Wash. 2004) (p. 235), where the court upheld a
possession conviction for a truck driver who crossed the Canadian border with 77 pounds of
marijuana in his trunk, refusing to require awareness of possession. (In a way, this is
reminiscent of the impulse behind the public welfare doctrine in strict liability crimes discussed
infra, in that the legislature seems to have designed these offenses to hold a defendant liable
if he did not “do” anything or have awareness of his crime.)
iv. Status
Courts have held that it is unconstitutional for mere status, as opposed to action, to be the
source of a criminal offense. Robinson v. California (U.S. 1962) (Stewart, J.) (p. 1009), where
the court held that a statute making it a criminal offense for a person to be “addicted to the use
of narcotics” was in violation of the Eighth Fourteenth Amendments’ prohibition of cruel and
unusual punishment. Status can, of course, be an aggravating factor in the commission of a
crime (e.g., if possessing an unlicensed firearm (actus reus) while a convicted felon (status));
but to have a crime for status would in effect make it illegal to exist in a given form.
Courts have carefully limited, however, the Robinson-style limitation that a status cannot
be the basis for criminal liability. Consider Powell v. Texas (U.S. 1968) (Marshall, J.)
(p. 1012), where the defendant attempted to use a defense of chronic alcoholism to argue that
he was involuntarily drunk in public and thus could not be charged under the public
intoxication laws of Texas. (Cf. the more complete sense of involuntary presence in public
discussed supra in Martin v. State). The Court rejected the syllogistic attempt to bring the case
in line with Robinson, noting that alcoholism may not be as properly understood as a “disease”;
that defendant seemed to voluntarily take his first drink, if not the subsequent ones; and that
it was loath to so thoroughly undercut the ability of courts and the state to charge individuals
with committing crimes even if there were underlying compulsions or “involuntary” actions in
the broader sense not relevant for the actus reus principle. As a note on Powell: this was a four-
member plurality vote with the deciding fifth vote being Justice White’s concurrence. That
concurrence upholds the Robinson line of thought—“If it cannot be a crime to have an
irresistible compulsion to narcotics . . . I do not see how it can constitutionally be a crime to
yield to such a compulsion”—but merely found that, in this case, Powell could have taken
greater volitional steps to prevent being drunk in public.
For further analysis, see Bell v. Boise (D. Idaho 2015) (Statement of Interest of the
United States) (handout), which attempts to argue that in instances when homeless shelters
are overpopulated and when there are insufficient beds, criminalization of sleeping in public
places is a constitutional violation, as it in effect criminalizes status (i.e., since individuals
cannot help sleeping, and if there are no other options given their status as homeless, then any
such prohibition effectively prohibits homelessness). They rely heavily on a case we did not
read, Jones v. City of Los Angeles (9th Cir. 2006), which held that enforcement of anti-
camping ordinances may violate the Eighth Amendment on nights when there is inadequate
shelter space available for the city’s individuals.
E. MENS REA REQUIREMENT AT COMMON LAW
Actus non facit reum, nisi mens sit rea: “an unwarrantable act without a vicious will is no
crime at all” (Blackstone). This vicious will / mens rea requirement is fundamental to the criminal
law, particularly in choosing whether to hold a defendant criminally liable and thereby place

Page 6
societal blame on his actions. Mens rea refers to the awareness or intention, or even reckless
indifference, in a defendant’s mind while undertaking the actus reus of a crime.
There are three rough theories about mens rea:
1. Moral wrong theory: the mens rea requirement is satisfied if you are aware that
what you are doing is illegal. (See discussion on Regina v. Prince, infra.)
2. Lesser crime theory: if you know that you are committing a minor crime that’s illegal,
you needn’t know about other attendant circumstances that could make the crime even
worse. (E.g., the argument that the defendants in Faulkner or Cunningham, having
decided to commit a crime, should be held criminally liable for the results springing
from that crime.)
3. Cunningham / Faulkner: the defendant must have intended, or at least been
conscious of, the action or result with which he is being criminally charged. (See
discussion on Cunningham and Faulkner, infra.)
Traditional common-law definitions of mens rea require proof of a dizzying array of terms:
willful, intentional, malicious, corrupt, wanton, reckless, negligence, and scienter, to name a few.
The prevailing approach at common law was to require malice, i.e., foresight of the prohibited
consequence, to convict of a crime.
Courts considering common-law crimes requiring such mental states at common law were
careful to maintain the mens rea requirement. See, e.g., Regina v. Cunningham (U.K. 1957)
(p. 243) (the defendant was charged with unlawfully and maliciously causing Sarah Wade to take
noxious gas when he stole the gas meter and it went through the cellar into the next-door
apartment, partially asphyxiating Mrs. Wade. The question for the jury was whether it was a
“malicious” act, which the court felt required (1) an intention to do the harm or (2) recklessness
as to whether that harm may occur (requiring subjective knowledge). The conviction was quashed
on the basis that the jury instructions only required that he intended to do an act that resulted in
a harm.); Regina v. Faulkner (U.K. 1877) (p. 245) (the defendant was charged with
“maliciously” setting fire to a ship when he lit a match while trying to steal some rum; while the
jury was instructed that they could convict him if he was stealing the rum and the fire took place
during the commission of that crime, but his conviction was also quashed, finding that the act
must have been done intentionally or willfully or recklessly.).
The modern Court’s take on mens rea has been, in cases of ambiguity in statutory
interpretation, to give effect to a background presumption that such scienter is required to convict
a defendant. Negligence, certainly civil negligence, is not enough. See, e.g., X-Citement Video
(discussed infra); Elonis v. United States (U.S. 2015) (handout) (defendant was charged and
convicted for using social media sites to threaten people because the jury instructions relied on an
objective standard, i.e., whether a reasonable person would foresee that the statement would be
interpreted as a threat. The Court relies heavily on Morissette (also discussed in greater detail
infra) requiring a rule of construction where “wrongdoing must be conscious to the criminal,” even
in the absence of such a requirement (i.e., reckless at a minimum rather than merely negligent).
In the absence of language on the requirement mental state, says the Elonis court, “we read into
the statute ‘only that mens rea which is necessary to separate wrongful conduct from “otherwise
innocent conduct.”’” The negligence standard of the jury instruction was therefore inappropriate;
they must have been able to show, at least, recklessness. Note, of course, that the Elonis court’s
finding is perfectly consistent with the MPC’s rules on interpretation.)
i. Mistakes of Fact
The Model Penal Code, in Section 2.04, holds that a mistake of fact may be a defense to a
prosecution if it negatives the mens rea or other requirement necessary to convict on that offense.
It is, essentially, of “evidentiary import” with respect to proving material elements of offenses.

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The Model Penal Code essentially gives weight to the principle that the “effective measure of the
defendant’s liability should be his culpability, not the actual consequences of his conduct.”
Cf. Regina v. Prince (U.K. 1875) (p. 266) (defendant was convicted of statute making it
illegal to “unlawfully take or cause to be taken any unmarried girl . . . under the age of sixteen . .
. out of the possession and against the will of her father.” The defendant argued that he had a
defense of a reasonable mistake of fact and did not know, or recklessly disregard the risk, that she
was 14. The court rejected this defense, holding that the act forbidden is wrong in itself, thus the
court was not bound to construe the statute as though there were a mens rea requirement. The
dissenting judge, on the other hand, feels that this is a serious violation of the rule that there can
be no criminal conviction in the absence of mens rea.). (Note: England ultimately overturned
Prince, finding it incompatible with the trend in criminal law that defendants must be judged on
the basis of the facts as they reasonable believe them to be. We’re still stuck with it.) See also
State v. Benniefield (Minn. 2004) (p. 271), where the defendant was convicted of possessing
drugs within 300 feet of a school even though he had no knowledge he was near the school. These
have the general thrust of the categories of offenses discussed below. But cf. United States v.
Cordoba-Hincapie (E.D.N.Y. 1993) (p. 272) (denying mistake defense about seriousness of
offense violates the requirement that punishment be calibrated to the degree of culpability).
F. NOTE ON GENERAL AND SPECIFIC INTENT
This typology can be confusing, as we will see in some of the discussions infra (e.g., using
specific and general intent to distinguish offenses for which evidence of intoxication might be used
to negative the mens rea required for the offense). In general, the division works out like this:
General intent: the much broader and, in some sense, default sense of a crime; a defendant
need only have intended to commit the specific activity or offense proscribed by law. If battery, for
instance, is “intentional and physical harmful contact with another person,” then a defendant may
be convicted of that offense if he intends to make physical harmful contact. Another context in
which general intent is discussed is to describe an offense for which the defendant need not have
subjective awareness of some attendance circumstance of the crime; e.g., a statute prohibiting
bigamy that does not require the defendant to know that he was marrying a woman who was still
married to another.
Specific intent: a narrower category of offenses requiring that a defendant commit an act
with a mind to bring about or effect some further purpose. Merely knowing a result is likely is not
the same thing as endeavoring to bring the result about. Consider, for instance, if a battery statute
requires “intentional and physical harmful contact with another person with the intent to maim
or injure,” then this is a specific intent crime. It is not enough to show that the defendant intended
to make the physical contact; he must also have intended to effect the maiming or injury. The
paradigmatic example is burglary, requiring that a defendant break and enter, not simply
knowingly or purposefully, but with the further objective of committing a felony once inside.
G. LEVELS OF CULPABILITY AND THE MPC REFORMS
The difficulties inherent in the common-law mens rea terminology led the ALI to propose an
extraordinarily influential fresh approach. Its approach involves three tools: (1) a reduction of all
common-law mens rea adjectives to simply four mental states; (2) a fairly rigorous and limited
definition for each mental state; and (3) default rules of interpretation for courts to read the
mental states and their relationship to a given statute reasonably. The full section is included
throughout the individual discussions below.
MPC § 2.02:
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05,
a person is not guilty of an offense unless he acted purposely, knowingly,

Page 8
recklessly or negligently, as the law may require, with respect to each material
element of the offense.
Generally, the strength of the MPC system is that the relevant mens rea must be considered
for each material element (result, attendant circumstance, action) of the offense. This generally
avoids the incongruent outcomes that can result from requiring one default level of mens rea
across different actions, results, and attendant circumstances.
i. Material Elements of the Offense for Levels of Culpability Analyses
The MPC’s definitions section sets out the following guidance on how, first, to determine
which items of a given statute or rule constitute the “material elements” for purposes of mental
state analysis:
MPC § 1.13:
. . . . (9) “element of an offense” means (i) such conduct or (ii) such attendant
circumstances or (iii) such a result of conduct as (a) is included in the
description of the forbidden conduct in the definition of the offense; or (b)
establishes the required kind of culpability; or (c) negatives an excuse or
justification for such conduct; or (d) negatives a defense under the statute of
limitations; or (e) establishes jurisdiction or venue;
(10) “material element of an offense” means an element that does not relate
exclusively to the statute of limitations, jurisdiction, venue, or to 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 . . . .
“Elements” thus comprise conduct, attendant circumstances, or results, not mental states
themselves, which differs from common-law conventional understandings (e.g., in burglary,
“intent to commit a felony inside” was traditionally understood as part of the crime).
ii. Purpose
MPC § 2.02(2)(a):
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result;
and (ii) if the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist.
A defendant must have a conscious objective to bring about a result; you hope or believe
that your conduct will create a given result. Note that “purpose” is not synonymous with
“motive”; the “purpose” is the legally relevant thing (whether a consequence is intended),
whereas the ultimate motive spurring on the commission of the crime is not relevant for
questions of mens rea.
iii. Knowledge
MPC § 2.02(2)(b):
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that such
circumstances exist; and (ii) if the element involves a result of his conduct, he
is aware that it is practically certain that his conduct will cause such a result.
Purpose and knowledge, the higher levels of mens rea under the MPC, are typically used
together and infrequently distinguished. The difference is one of desire, of subjective goal, of

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hope on the part of the defendant; a defendant may know that something is the case without
necessarily desiring that it be the case.
iv. Recklessness
MPC § 2.02(2)(c):
A person acts recklessly with respect to a material element of an offense when
he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of
such a nature and degree that, considering the nature and purpose of the
actor's conduct and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a law-abiding person
would observe in the actor's situation.
One of the only difficulties is whether the MPC requires awareness of (1) a risk, (2) the
fact that risk is substantial, and (3) the fact that the risk is unjustifiable, or whether a
defendant may be convicted on the basis of recklessness when one or more or those specific
subsets is not fully clear to him.
v. Negligence
MPC § 2.02(2)(d):
A person acts negligently with respect to a material element of an offense when
he should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a
nature and degree that the actor's failure to perceive it, considering the nature
and purpose of his conduct and the circumstances known to him, involves a
gross deviation from the standard of care that a reasonable person
would observe in the actor's situation.
Interestingly, for the purposes of some crimes, it may be held that a defendant’s actions
were so grossly negligent, so blatantly and offensively blind to the risks in a given situation,
that the defendant could not “have failed to realize” the chance of risk, effectively bumping
negligence up into the realm of recklessness.
“Gross deviation from the standard of care” typically requires more than the civil
standards of negligence. See, e.g., Santillanes v. New Mexico (N.M. 1993) (p. 252) (to find
the defendant guilty for negligently causing a child to be placed in a situation endangering his
life or health, and with a mind to the moral condemnation and social opprobrium accompanying
criminal conviction, there must be a mens rea showing of criminal negligence rather than
ordinary civil negligence). Cf. State v. Hazelwood (Alaska 1997) (the Exxon Valdez case,
where the court held that civil negligence, rather than gross negligence, is necessary to ensure
that criminal penalties will be imposed when the public wants to deter terrible conduct;
rejecting arguments that this imports tort liability into criminal law, the conviction was
upheld. The court seems to focus on deterrence and the public, expressive purpose of criminal
rather than mere civil liability).
vi. Interpretation and Construction
MPC §§ 2.02(3)–2.02(4):
(3) Culpability Required Unless Otherwise Provided. When the culpability
sufficient to establish a material element of an offense is not prescribed by law,
such element is established if a person acts purposely, knowingly or recklessly
with respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements.
When the law defining an offense prescribes the kind of culpability that is

Page 10
sufficient for the commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears.
These two default rules serve two purposes. First, it sets a standard default minimum: if
not otherwise specified, a showing of recklessness on the part of the defendant will do. This
means that mere negligence on the part of a defendant, even if criminally negligent, will not
suffice for the conviction unless the statute so states. Second, it requires that if a statute
specifies one type of mens rea—e.g., if it says “knowingly breaking and entering”—then that
mental state (knowledge) must be proven for the other material elements of the offense as well.
H. MALUM IN SE VS. MALUM PROHIBITUM
As a quick note relevant to the following discussion on strict liability: offenses which carry
society’s morally reprobative weight, offenses for which there is moral culpability, offenses that
are wrong in themselves, are malum in se offenses. Conversely, offenses that are merely
wrong because they are prohibited by law and by statute, which normally carry lower penalties
and by association less communal, legal, and moral reprobation, are malum prohibitum
offenses.
I. STRICT LIABILITY OFFENSES
While the general rule at common law was that scienter, some sort of ill mind, was required
for indictment and proof of every crime, some statutes have a different intent, namely to hold
defendants criminally liable in a strict sense if they violate a given prohibition. Strict liability can
be imposed without any demonstrated culpability, including not even negligence, with respect to
at least one material element of an offense.
The leading cases discussed are United States v. Balint (U.S. 1922) (p. 282) (where the
Court ruled that the defendants need not have known that they were selling illegal drugs; while
the rule at common law was to require scienter, here the legislative focus was on social
betterment, requiring that any person selling drugs inquire as to the legality of what he sells and
hold him liable for ignorance) and United States v. Dotterweich (U.S. 1943) (p. 283) (where the
defendants were convicted under an FDA labeling statute because the Court held that there was
no mens rea at all with respect to whether the defendants knew or should have known they had
mislabeled the shipment; these penalties serve as an effective means of regulation, thereby
dispensing with the traditional requirement for criminal conduct). Cf. Morissette v. United
States (U.S. 1952) discussed infra, where the court distinguished the charge of knowingly
converting government property from the Balint-style category of offenses not requiring mens rea.
These public welfare offenses are distinguished from other crimes requiring a showing of
mens rea on the part of the defendant in four ways: (1) they are of a more modern vintage rather
than traditional common-law offenses; (2) they are malum prohibitum, rather than malum in se,
crimes; (3) they are responsive to modern threats or conditions and meant to lend criminal weight
to otherwise civil attempts at regulation; and (4) they tend to carry lower penalties and less stigma
than crimes requiring mens rea.
For an interesting series of cases on strict liability in the criminal law and whether to require
that the defendant know, or recklessly disregard, elements necessary for charging him with the
offense, compare Morissette v. United States (U.S. 1952) (p. 284) (Jackson, J.) (defendant could
not be convicted of knowingly converting government property unless the jury made a finding that
he knew, or recklessly disregarded the likelihood that, the property was still in possession of the
U.S. government; the court held this was not an appropriate area for extending the crimes-
without-intent line of thinking of Balint, recognizing that as being charged with a serious felony
has serious reprobative weight, it should be limited to situations where the accused has the
appropriate mens rea), and Staples v. United States (U.S. 1994) (p. 288) (Thomas, J.)

Page 11
(defendant must not be convicted without proof that he knew, or recklessly disregarded, the risk
that his weapon had become an automatic one; the background rules of the common law require
some mens rea for a crime; punishing something as a felony without mens rea, without specific
and explicit statement as to the legislative intent, was contrary to the theory of the public welfare
offense; the defendant must know the facts that make his conduct fit the definition of a given
offense), with United States v. Freed (U.S. 1971) (p. 289) (holding the defendant guilty because
he knew that he had grenades in his possession regardless of whether or not he knew that the
grenades in his possession were unregistered, essentially similar to the thinking of Balint and
Dotterweich and other such public welfare offenses). See also United States v. X-Citement
Video, Inc. (U.S. 1994) (p. 291), where the court considered whether defendant could be convicted
of violating the Protection of Children Against Sexual Exploitation Act, particularly whether the
word “knowingly” in the first clause of the statute should be held to extend throughout. Chief
Justice Rehnquist felt that because of the presumption that scienter should apply to each
statutory element, the Court should require proof that defendant knew each element of the
offense. Justice Scalia disagreed.
Under the Model Penal Code:
MPC § 2.05:
(1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not
apply to: (a) offenses that constitute violations, unless the requirement
involved is included in the definition of the offense or the Court determines
that its application is consistent with effective enforcement of the law defining
the offense; or (b) offenses defined by statutes other than the Code, insofar as
a legislative purpose to impose absolute liability for such offenses or with
respect to any material element thereof plainly appears.
(2) Notwithstanding any other provision of existing law and unless a
subsequent statute otherwise provides: (a) when absolute liability is imposed
with respect to any material element of an offense defined by a statute other
than the Code and a conviction is based upon such liability, the offense
constitutes a violation; and (b) although absolute liability is imposed by law
with respect to one or more of the material elements of an offense defined by a
statute other than the Code, the culpable commission of the offense may be
charged and proved, in which event negligence with respect to such elements
constitutes sufficient culpability . . . .

J. IGNORANCE OF THE LAW


One of the central underlying maxims at common law was ignorantia legis neminem excusat:
ignorance of the law is no excuse. This powerful principle means that a defendant cannot escape
criminal liability for not knowing, or perhaps not understanding (but see infra), the law.
As a preliminary structure, here is Prof. Sklansky’s outline of this issue:
Ignorance of the law, generally, is an exception to the rule that a guilty mind or mens
rea is required for conviction. However, this principle itself has several exceptions:
1. Statutory command (i.e., if a criminal statute makes clear that a defendant must
have known that what it was doing was a crime, then ignorance as to commission of
the crime negates one of the elements of the crime itself) (e.g., Cheek, infra).
2. Ignorance as to a legal element of an offense (e.g., Weiss, Smith (David), Varszegi,
infra).
3. Constitutional notice issues (the Lambert exception, infra).

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As a leading and introductory case, consider People v. Marrero (N.Y. 1987) (p. 304), where
the defendant was convicted of unlicensed possession of a weapon but believed that he was not
subject to the law because he was a federal corrections officer. He felt that he could not be
convicted under the New York rule where a mistake as to the law is founded on “an interpretation
of the statute or law relating to the offense,” and that this mistake was reasonable. The court
instead applies the Model Penal Code standard, which limits the defense to acts in reasonable
reliance on an official statement of the law that are “afterward determined to be invalid or
erroneous.” Wanting to avoid inviting lawlessness and an invitation for every individual to
question the validity of the law, the opinion (recognizing that the statute never in fact authorized
the conduct, but the defendant just thought it did) affirmed the conviction. The dissent in Marrero
disagrees with the majority and considers this to be, in effect, undermining the legislative desire
to reduce the strict, archaic common-law total prohibition of the mistake of law as a defense.
There are, however, many situations in which courts have ruled that ignorance of the law
could be an excuse. They have even held that it is an excuse if the belief is honestly held but not
necessarily objectively reasonable. See, e.g., Cheek v. United States (U.S. 1991) (White, J.) (p.
313) (defendant argued against his conviction because of his sincere belief about not owing taxes
and that the taxes were unconstitutional. The unconstitutional defense was not admitted.
However, the court did hold that because the statute uses the term “willfully,” then any belief on
the defendant’s part, reasonable or otherwise, would negate the requisite mens rea required for
conviction. The jury must consider whether he acted willfully, and in so doing, must consider his
asserted beliefs about the tax issues (no matter how apparently unreasonable)); Regina v. Smith
(David) (U.K. 1974) (p. 311) (defendant successfully used the defense that he was only destroying
his own property rather than someone else’s; the court held that applying the ordinary mens rea
principle, no offense is committed if the person holds an honestly held belief (going further even
than the dissent in Marrero, which would seem to argue for a reasonably mistaken belief)); State
v. Varszegi (Conn. App. 1993) (p. 311) (“A defendant who acts under the subjective belief that
he has a lawful claim on property lacks the required felonious intent to steal.” Central to the
holding is the idea that larceny is limited to situations of intent to steal another’s property.);
People v. Weiss (N.Y. 1938) (kidnapping case where the defendants had their convictions
overturned because of a mistaken belief that they had the legal right to seize the person
responsible for murdering child).
The relevant MPC sections related to ignorance of the law (but also including the provisions
on mistake of fact discussed supra) are included below:
MPC § 2.04:
(1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the
ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
negligence required to establish a material element of the offense; or (b) the
law provides that the state of mind established by such ignorance or mistake
constitutes a defense.
(2) Although ignorance or mistake would otherwise afford a defense to the
offense charged, the defense is not available if the defendant would be guilty
of another offense had the situation been as he supposed. In such case,
however, the ignorance or mistake of the defendant shall reduce the grade and
degree of the offense of which he may be convicted to those of the offense of
which he would be guilty had the situation been as he supposed.
(3) A belief that conduct does not legally constitute an offense is a defense to a
prosecution for that offense based upon such conduct when: (a) the statute or
other enactment defining the offense is not known to the actor and has not
been published or otherwise reasonably made available . . . or (b) he acts in
reasonable reliance upon an official statement of the law, afterward

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determined to be invalid or erroneous, contained in (i) a statute . . . ; (ii) a
judicial decision, opinion or judgment; (iii) an administrative order . . . ; or (iv)
an official interpretation of the public officer or body charged by law . . . .
If a legal element is one of the material elements of the offense, then a mistake as to the law
might afford a defense. For instance, if one of the elements of the offense of larceny is that the
property belongs to someone else, then a mistake where the defendant felt that he was the rightful
owner of the property affords a mistake. According to the MPC Commentary, the principle that
ignorance of the law is no excuse is limited to the crime itself: ignorance or mistake as to the
specific law setting out the crime in question is not an excuse.
For a comparison on the contours of the ignorance-of-the-law principle, compare Lambert v.
California (U.S. 1957) (Douglas, J.) (p. 321) (where the defendant had no actual knowledge of
her duty to register, she may not be convicted consistently with Due Process; the notice
requirement is given strong weight here. This was the holding in spite of the fact that there was
no “willfulness” requirement in the statute (cf. the cases in the line with Varszegi and Cheek,
supra, where the statutes required intent or willfulness, and thus the courts were justified in
using the mistake-of-law defense to negate that intent or willfulness), which might otherwise have
suggested that this fall under the public welfare offenses category.), with id. (Frankfurter, J.,
dissenting) (if the generalization underlying the Lambert exception were to be given full scope,
then the Court would have effectively overruled all of the many regulatory criminal offenses in
the line of Balint, valid exercises of the police power for mala prohibita), and State v. Bryant
(N.C. 2005) (p. 324) (distinguishing Lambert in the case of a sex offender who failed to register
on the grounds that (i) Lambert had to do with general law enforcement rather than a specific
public safety measure and (ii) the world is “overflowing with circumstances” that should have
notified Bryant of his duty to register).
Finally, note that (generally speaking) cultural knowledge and experience is not an excuse
with respect to mistake of the law; while some argue that this would help increase the law’s
pluralistic support of different cultures, others think this would abandon victims to the vagaries
of heterogeneous populations.
K. CAUSATION
The causation issue arises in the criminal law whenever a result is a material element of an
offense. To be the cause of a result, an action must be both its but-for factual antecedent (its factual
cause) and its proximate cause. The MPC formulation is included below:
MPC § 2.03(1):
(1) Conduct is the cause of a result when: (a) it is an antecedent but for which
the result in question would not have occurred; and (b) the relationship
between the conduct and result satisfies any additional causal requirements
imposed by the Code or by the law defining the offense.
[Note: MPC §§ 2.03(2)–2.03(4) lay out how to think about, and establish,
causation when (i) purposely or knowingly causing a particular result is an
element, (ii) recklessly or negligently causing a particular result is an element,
and (iii) when it is a strict liability offense. You may need to look at these if
you think there is a causation issue. p. 1203 of the casebook.]
i. But-For / Factual Causation
The threshold question for any result-based crime is: was the defendant’s action a but-for
antecedent without which the result in question would not have occurred? This is the sine qua
non test of causation and is something which must be considered before questions of proximate
cause.

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Consider Burrage v. United States (U.S. 2014) (Scalia, J.) (handout), where defendant’s
distribution of heroin to Joshua Banka, who died after taking many different drugs, was held
not to be the but-for antecedent cause of his death. Declining to adopt the Government’s
argument for permissive interpretation of the causation requirement, the Court held that it
was far too uncertain that the criminal action in question had in fact been the but-for cause of
the death, or even was one of several multiple sufficient causes such as would make it
appropriate to hold the defendant liable.
ii. Proximate / Legal Causation
Just as in tort law, proximate cause is a term used to separate those results for which an
actor will be held responsible from those not carrying such responsibility. The MPC wanted to
maintain the proximate causation / legal cause standard to prevent something serving as a
cause when it is “too remote or accidental in its occurrence to have a [just] bearing on the actor's
liability or on the gravity of his offense.”
Courts are willing to extend criminal liability even if the harm was slightly remote. See,
e.g., People v. Acosta (Cal. App. 1991) (p. 572), where a defendant driver during a high-speed
chase was held to be the but-for and proximate cause of the crash of two helicopters in pursuit,
even if these helicopters had been operating recklessly. The majority held that the result was
not highly extraordinary, but rather a “possible consequence which reasonably might have
been contemplated,” thus justifying a finding of proximate cause. (Interestingly, not a finding
of malice, since it is not possible to find a conscious disregard for a risk that was “barely
objectively cognizable”: odd sort of risk indeed. The Acosta dissent disagreed, arguing that the
helicopters were not within the range of apprehension of fleeing criminal (quoting Palsgraf).
On the other hand, King v. Commonwealth (Va. App. 1988) (p. 494), where defendant
and copilot crashed a plane during transporting marijuana. The felony murder conviction was
reversed on the ground that the drug-distribution crime was not the proximate cause of the
death. The crash was not a foreseeable result of the felony because it was not made any more
likely by the cargo having contraband (cf. a situation where the plane, in an effort to avoid
detection, was flying dangerously low to the ground).
1. Intervening Third-Party Actions
The basic rule of criminal law with respect to intervening causes in the proximate
causal chain is that parties are not held responsible if others’ dangerous or criminal acts
caused the harm; instead, there is a more stringent application of a “direct cause” standard.
This is the rule of People v. Campbell (Mich. 1983) (p. 586), where the defendant was
drinking with his wife’s lover and convinced him to kill himself, providing him the gun and
later leaving. Though “morally reprehensible,” the intervening action of the suicide prevented
a finding of criminal liability for murder: “Simply put, the defendant here did not kill another
person.” This is also the rule of Commonwealth v. Root (Pa. 1961) (p. 601), a drag-race
case where the defendant was charged with involuntary manslaughter for the death of his
competitor. Defendant was not held to be the “direct cause” of the decedent’s death. While
tort concepts of proximate cause have expanded to incorporate similar types of situations, the
Pa. court held that it would be appropriate to have a similar extension in the criminal law;
the decedent acted of his own accord, aware of the danger, so the defendant’s reckless conduct
was not a sufficiently direct cause. (The Root dissent, of course, disagrees, holding that if not
for the defendant’s agreeing to engage in the risky driving, there would be no death (but-for),
and it was reasonably foreseeable.)
But cf. State v. McFadden (Iowa 1982) (p. 603), where the court dealt with a death
to a six-year-old in another car in another drag-race case. The McFadden court declined to
apply the “direct causal connection” standard from Root, finding it overly stringent (based in

Page 15
part off of their declining, in an earlier case, to hold a blanket rule that proximate cause
instructions are inappropriate for criminal trials. Instead, they relied on a standard where
“acts and omissions of two or more persons may work concurrently as the efficient cause of
an injury and in such cases each of the participating acts or omissions is regarded in law as
a proximate cause.” Note that Iowa, in a case we did not read, also held that under identical
circumstances of encouraged suicide encountered supra in Campbell, the defendant was able
to be found guilty. See also Commonwealth v. Atencio (Mass. 1963) (p. 605), holding
defendants guilty of manslaughter for engaging in Russian roulette (“concerted action and
cooperation of the defendants in helping to bring about the deceased’s foolish act” and
“mutual encouragement in a joint enterprise”).
2. Exception for Involuntary Intervening Third-Party Actions
Courts have no hesitation in holding that a subsequent actor’s risky choices do not
negate first actor’s liability when those choices are the result of a predicament created by the
first actor.
For instance, the Acosta line of thinking is followed in People v. Matos (N.Y. 1994)
(p. 600), where a police officer chasing an armed robber on rooftops fell down an air shaft; the
felony-murder conviction was upheld because the officer’s pursuit was a “foreseeable result
of the defendant’s crime and subsequent flight.” Equally, consider People v. Kern (N.Y. App.
1989) (p. 600), the “Howard Beach incident” where white teenagers assaulted black men,
chased them onto the highway, one of whom was struck by a car and killed. The defendant’s
actions were held a “sufficiently direct cause” of the ensuing death to warrant criminal
liability (not explicitly proximate cause, but surely that’s the question here: defendants’
actions put the victim in a position where he either had a duty to do, or could not avoid doing,
the thing that resulted in his death).
L. NOTE ON PROSECUTORIAL DISCRETION
There are many difficulties inherent in prosecutorial discretion, letting the state decide when
to bring a case and when not to. We discussed these difficulties most in relation to the Leah
Francis Stanford rape case, where the prosecutor declined to pursue the case in spite of what
seems like obvious evidence that Ms. Francis may not have been able to consent to the sex at the
time. This is representative of the traditional U.S. view, perhaps, that the “manifold
imponderables” involved in prosecutorial discretion mean that courts are not equipped to
supervise these discretionary decisions, nor can individuals bring § 1983 claims because of the
discretionary nature of the decision. See, e.g., Inmates of Attica Correctional Facility v.
Rockefeller (2nd Cir. 1973) (p. 1118) (applying the separation of powers doctrine to prevent
supervising prosecutorial decisions. Cf. M.C. v. Bulgaria (ECHR 2003) (p. 369) (where the
European Court of Human Rights was willing to review Bulgaria’s prosecutorial decision, finding
a violation of human rights that they had required some physical manifestation of resistance and
force). In many instances in Europe, prosecutors are compelled to file and pursue all charges for
which there is sufficient evidence, which is subject to judicial oversight.
Think about the costs and benefits in allowing, encouraging, or requiring appellate courts to
review prosecutorial discretionary decisions not to move forward with a case, or to move forward
in particular ways.

II. AUXILIARY DOCTRINES & INCHOATE CRIMES


The auxiliary doctrines are ways in which a defendant may be charged and convicted with a crime
though he did not himself and/or in fact commit the crime.

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A. ATTEMPT
An attempt to commit a crime is, in and of itself, a crime, though often one of reduced
sentences (though some states have held that the punishments should be the same with the
exception of crimes punishable by life imprisonment or death).
i. Mens Rea
The mens rea required for attempt is well settled both at common law and under the MPC:
specific intent, or what under the MPC is known as purpose.
On this point, see Smallwood v. State (Md. 1996) (p. 611), where the defendant engaged
in unprotected sex though he knew he carried HIV. This was held as insufficient to infer an
intent to kill. While such an intent can be inferred from acts, conduct, and words, without
evidence that such a result that his victims might contract HIV is “sufficiently probable” to
support the inference of such intent, the convictions must be reversed.
Note that this focus on specific intent or purpose means that the bar for attempt is more
stringent than for other crimes. Consider Jones v. State (Ind. 1997) (p. 613): a defendant shot
at a house full of people, wounding several and killing one; he was convicted of murder for the
one he killed but acquitted of attempted murder for the ones he wounded, since he lacked the
specific intent to murder them (but was held guilty of depraved-heart murder for the one he
killed). Consider as well Thacker v. Commonwealth (Va. 1922) (p. 614): a drunk, refused
entry into a woman’s tent, angrily fired a shot at the light in the tent. If he had hit her, he could
have been convicted of depraved-heart murder. Since it missed her, he cannot be charged with
attempted murder.
This is the same reason why it is not possible (except, oddly, in Arkansas) to charge
someone with convicted felony murder (since, by near definition, they lacked the specific intent
to kill, rather intending only to commit the other non-merged felony). Similarly, it is
nonsensical to talk about “attempted involuntary manslaughter,” since by definition one cannot
have the specific intent to cause an accidental death. Cf. People v. Thomas (Colo. 1986)
(p. 614) (fired shots at a man he thought was a fleeing rapist; two shots strike the man;
convicted of attempted reckless manslaughter). (Of course, there could be “attempted voluntary
manslaughter” in instances of provocation.)
ii. Actus Reus
The much greater difficulty with respect to attempt comes from assessment of the actus
reus, i.e., in attempting to set out what types of actions constitute an attempted crime. At the
polar ends, this is well-settled: mere thought, mental planning, or preparation is not sufficient
to constitute an attempt, nor must attempt be limited to the “last step” before consummation
of the crime. See King v. Barker (N.Z. 1924) (p. 617) (neither the last-step rule suggested by
Baron Parke in R. v. Eagleton nor prior and preliminary acts can constitute attempt; the first
step is not necessarily sufficient, and the last step is not necessarily required).
There are three major tests discussed in the case law with respect to what constitutes
sufficient action for a defendant to be found guilty of an attempt:
1. The Dangerous Proximity Test
This test asks whether the defendant came “dangerously close” to committing the
offense, “those acts only as tending to the commission of the crime which are so near to its
accomplishment that in all reasonable probability the crime itself would have been
committed, but for timely interference.” People v. Rizzo (N.Y. 1927) (p. 618). This is
stringent test, one that undercuts the ability of law enforcement officers to convict, in many
circumstances; in the Rizzo case, they had taken considerable steps, but as they were still

Page 17
looking for the person they intended to rob, they were not guilty of an attempt to commit
robbery. This test was also applied in Commonwealth v. Bell (Mass. 2009) (p. 620), where
a defendant met an officer undercover and arranged to have sex with her (fictitious) four-
year-old child. He had yet to see the child and had not yet paid, so the court reversed the
conviction for attempted rape (not for solicitation): “the distance must be relatively short, the
gap narrow, if the defendant is to be held guilty of a criminal attempt.”
2. The Equivocality Test
The equivocality test as formulated in King v. Barker (N.Z. 1924) (p. 625) looks to a
question of how clearly a defendant’s acts “bespeak his intent.” An act, to be an attempt, must
be, in and of itself, “sufficient evidence of the criminal intent with which it is done,” an act
“which shows criminal intent on the face of it.” The equivocality test is like the criminal res
ipsa loquitor, an action for which there is no doubt that the defendant had the criminal intent
to commit the crime with which he is being charged for attempt. This is a severely strict
version of it, but consider People v. Miller (Cal. 1935) (p. 625), where the defendant entered
a field where his would-be victim was planting hops; he walked straight toward them, loaded
his rifle, but never raised it; the court reversed the attempted murder conviction, saying that
“it is that quality of being equivocal that must be lacking before an act becomes one which
may be said to be a commencement of the commission of the crime.”
3. The Substantial Step Test
The Model Penal Code in § 5.01 sets out the Code’s take on attempt:
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime
if, acting with the kind of culpability otherwise required for commission of the
crime, he: (a) purposely engages in conduct that would constitute the crime if
the attendant circumstances were as he believes them to be; or (b) 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; or (c) purposely does or omits to do
anything that, under the circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of conduct planned
to culminate in his commission of the crime.
(2) . . . . Conduct shall not be held to constitute a substantial step under
Subsection (1)(c) of this Section unless it is strongly corroborative of the
actor's criminal purpose. Without negativing the sufficiency of other
conduct, the following, if strongly corroborative of the actor's criminal purpose,
shall not be held insufficient as a matter of law: (a) lying in wait, searching for
or following the contemplated victim of the crime; (b) enticing or seeking to
entice the contemplated victim of the crime to go to the place contemplated for
its commission; (c) reconnoitering the place contemplated for the commission
of the crime; (d) unlawful entry of a structure, vehicle or enclosure in which it
is contemplated that the crime will be committed; (e) possession of materials
to be employed in the commission of the crime, that are specially designed for
such unlawful use or that can serve no lawful purpose of the actor under the
circumstances; (f) possession, collection or fabrication of materials to be
employed in the commission of the crime, at or near the place contemplated
for its commission, if such possession, collection or fabrication serves no lawful
purpose of the actor under the circumstances; (g) soliciting an innocent agent
to engage in conduct constituting an element of the crime.
The Second Circuit applied the MPC test on attempt in United States v. Jackson
(2nd Cir. 1977) (p. 631), where the defendants engaged in a significant number of tasks in
preparation for their robbing of a bank: checking surveillance cameras, installing fake license

Page 18
plates, entering the bank, rescheduling the robbery and so forth. The two-part MPC test (see
United States v. Mandujano (5th Cir. 1974) (p. 632) is: (1) defendant must be acting with
culpability required for the commission of the crime; and (2) the conduct must constitute a
“substantial step” toward commission of the crime, i.e., conduct “strongly corroborative” of
the firmness of the criminal intent. See also United States v. Joyce (8th Cir. 1982) (p. 635),
where the defendant was discussing purchasing cocaine from an undercover dealer but never
unwrapped the package or paid; all the court saw here was a preliminary discussion lacking
in the “substantial step” toward possession of the cocaine (but cf. the very reasonable thinking
in People v. Acosta (N.Y. 1993) (p. 636), where someone who has taken that many steps
has come “very near” to possessing the drugs).
iii. Note on Abandonment
The law traditionally denied any defense of abandonment; once completed, once the
threshold has been passed, an attempt remains a crime. Others, though, maintain the desire
to preserve a defendant’s locus penitentiae: an opportunity to repent and change his mind.
Sometimes, these issues work in concert; a jurisdiction requiring attempt to be very close to
the “last step” might be more inclined to provide a defense of abandonment.
Consider the MPC’s take on abandonment:
MPC § 5.01(4):
When the actor's conduct would otherwise constitute an attempt . . . , it is an
affirmative defense that he abandoned his effort to commit the crime or
otherwise prevented its commission, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose. . . .
Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not present
or apparent at the inception of the actor's course of conduct, that increase the
probability of detection or apprehension or that make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete if it is
motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar
objective or victim.
iv. Note on Impossibility
Jurisdictions differ with regard to the extent to which a defendant might be convicted of
attempting to commit a crime that was impossible. In the classic (though difficult) division, a
defendant has no defense to attempt on the basis that the crime was factually impossible
(e.g., if he broke and entered into a house to rape a woman but she was not there, or in the
classic “pickpocket cases”); but it may be a defense to attempt if the crime was legally
impossible (e.g., if you intended to steal an item but it actually belonged to you).
People v. Jaffe (N.Y. 1906) (p. 641), for instance, is of the latter category of legal
impossibility: the defendant attempted to purchase goods that he thought were stolen, though
it was later revealed that the goods were legally sold. Here, unlike in “pickpocket” cases of
factual impossibility, there would have been no offense even if completely effected. The alleged
attempted offense, attempting to purchase goods knowing that they were stolen, was thus
impossible, as he could not “know” a non-existent fact. “‘If what a man contemplates doing
would not be in law a crime, he could not be said, in point of law, to intend to commit a crime’”
(quoting Bishop’s Crim. Law). But cf. People v. Rojas (Cal. 1961) (p. 646), where California
arrived at the opposite result, instead saying that intent is in the mind, not the external
realities to which intention refers.

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The Model Penal Code eliminated the defense of impossibility in virtually all situations.
What is in the actor’s mind, not the facts as they existed, is what is relevant:
MPC § 5.01(1):
“A person is guilty of an attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime, he: (a) purposely
engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be . . .”
See People v. Dlugash (N.Y. 1977) (p. 643), noting that the Jaffe line of cases
distinguishing legal from factual impossibility was a “nice one indeed” and instead relying on
the MPC provisions to find that there was sufficient evidence to conclude that defendant,
believing Geller to be alive at the time that he fired shots into him, and thus was guilty of
attempted murder. (Shooting a dead man you thought was alive is nevertheless attempted
murder.)
Note, of course, that legal and factual impossibility is a major problem for law
enforcement, which relies on sting operations; there may thus be a policy-related argument for
moving in the direction of the MPC.
Finally, note the “magic-wand” problem; even when the impossibility defense is not
normally available in a given jurisdiction, it may be used to avoid the extraordinary result of
convicting someone of attempted murder for using voodoo.
B. AIDING AND ABETTING
Aiding and abetting, unlike attempt, is a form of culpability rather than a separate crime; if
you aid or abet (encourage) in someone else’s commission of a crime, you are guilty of that crime.
This is sometimes known as accomplice liability.
Modern statutes and the MPC have eliminated the traditional four-part classification of
discrete modes of being an “accessory”; now, accomplices are charged as principals in the given
offense. Complicity is therefore a way of committing (oneself) a separate criminal offense.
Normally, they are subject to the same degree of penalties.
i. Mens Rea
The general rule for accomplice liability is that the accomplice must have acted with the
specific intent or purpose to aid or abet in the commission of the crime. Hicks v. United States
(U.S. 1893) (p. 661), for instance, involved Hicks being charged with encouraging Stand Rowe
to shoot Colvard and therefore acting as an accomplice. The jury charge improperly stated that
it was enough that he intended to use the words that may have been taken as encouragement;
rather, what is crucial for purposes of mens rea is that he intended them to serve as
encouragement. Second, the only way that Hicks’ mere presence there, without more, could
have served as proof for purposes of accomplice liability was through some evidence of prior
conspiracy. Cf. State v. Gladstone (Wash. 1970) (p. 664), where the defendant’s conviction
for aiding and abetting the sale of marijuana was overturned because the “vital element” of a
“nexus between the accused and the party whom he is charged with aiding and abetting” was
missing. There can be no aiding and abetting unless one “associates with the venture,”
“participate[s] in it as in something that he wishes to bring about” (quoting Learned Hand in
United States v. Peoni). (Of course: he could have aided and abetted the purchase, had the
purchaser not been an undercover police officer.) Note that subtle alterations in the nexus
might push Gladstone into accomplice liability (see the cases discussed in Note 2 at p. 666).
1. Difficulties of the purpose requirement
Consider the MPC view on the mens rea required:

Page 20
MPC § 2.06(3):
A person is an accomplice of another person in the commission of an offense if:
(a) with the purpose of promoting or facilitating the commission of the
offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or
attempts to aid such other person in planning or committing it, or (iii) having
a legal duty to prevent the commission of the offense, fails to make proper
effort so to do; or (b) his conduct is expressly declared by law to establish his
complicity.
In constructing this standard, note that the ALI rejected the original solution proposed
for the MPC, i.e., rejecting the Peoni limitation quoted in Gladstone in favor of a “knowingly,
substantially facilitated” standard—this was rejected.
In response to the difficulties posed by the “purpose” requirement, New York innovated
a separate lesser offense, criminal facilitation:
A person is guilty of criminal facilitation . . . when, believing it probably that
he is rendering aid to a person who intends to commit a crime, he engages in
conduct which provides such person with means or opportunity for the
commission thereof and which in fact aids . . .
2. Reducing the purpose requirement for serious offenses
If the crime at issue is particularly serious (e.g., murder), purpose may not be required;
instead, it may suffice if a defendant knew that the assistance provided would aid in
accomplishment of the serious crime. United States v. Fountain (7th Cir. 1985) (Posner,
J.) (p. 669), for instance, held that a defendant who gave a knife to the murderer being led by
prison guards could be convicted of aiding and abetting the murder. Finding that this would
deter these serious crimes, Posner held that aiding and abetting murder is established by
proof beyond reasonable doubt that the supplier of the murder weapon knew the purpose for
which it would be used.
3. Substantive crimes of facilitation
Certain categories of offenses are governed by statutes where the legislatures have
criminalized particular kinds of assistance (e.g., juvenile gun possession, “material support”
to terrorism, money laundering); most of these targeted facilitation statutes have a lower
mens rea of knowledge rather than purpose. Some courts have been willing to extend beyond
strict knowledge. See, e.g., United States v. Campbell (4th Cir. 1992) (p. 673), in which a
real estate agent’s conviction for aiding and abetting money laundering was upheld on the
doctrine of “willful blindness”: all that mattered was that she was deemed to know that he
was paying with money from some illegal source.
4. Mens rea for results
The classic case in this vein is State v. McVay (R.I. 1926) (p. 674) involving the sinking
of the steamer Mackinac. In response to the captain and engineer’s argument that
manslaughter, being sudden and unpremeditated, cannot be intentionally aided and abetted
ahead of time, the court held that it was possible for the defendants to have intentionally
directed and counseled a grossly negligent act.
Consider the following from the MPC, which codifies the principle in McVay:
MPC § 2.06(4):
When causing a particular result is an element of an offense, an accomplice in
the conduct causing such result is an accomplice in the commission of that

Page 21
offense if he acts with the kind of culpability, if any, with respect to that result
that is sufficient for the commission of the offense.
The court in Commonwealth v. Roebuck (Pa. 2011) (p. 675), faced with a similar
provision as MPC § 2.06(4), rejected the defendant’s argument that there cannot be
accomplice liability for third-degree murder, which is an unintentional killing. The MPC (and
states that follow it) provide that an accomplice can be held criminally liable for the crim
when they aid another in planning or committing the conduct to promote or facilitate it and
acts with the same mental state necessary to commit the offense (so, here, you can be guilty
of third-degree murder if you purposefully aid or abet in the offense with recklessness as to
the resulting harm).
Stated succinctly: the accomplice must have specific intent to further the underlying
conduct, but for the result, he need only have the mens rea required for the result element of
the substantive offense.
(Note that this is a major difference: for a defendant to be charged with an attempted
offense, he needed to have the purpose of effecting the result (see the discussion based on the
Smallwood case, supra). For aiding and abetting, however, the defendant need only have
whatever mens rea is necessary to convict of the offense.)
See also People v. Russell (N.Y. 1998) (p. 680) (defendants were charged with
accomplice liability for intentionally aiding whichever of them fired the fatal shot that
wounded the victim; based on their “tacit” agreement to engage in the gun battle, and
demonstrating the depraved indifference required for such crime, their convictions were
affirmed). The Russell court relied on People v. Abbott (N.Y. 1981) (p. 680), a drag-racing
case where Abbott lost control and smashed into another vehicle; the other defendant
asserted he had no control over Abbott’s actions, but the court held that his intentional
participation in an inherently dangerous and unlawful manner meant that he shared in the
culpability. This follows the same logic as the McVay and Roebuck cases discussed supra.
5. Mens rea for attendant circumstances
The Model Penal Code leaves open whether purpose is required with respect to any
attendant circumstances element of the offense. The courts have divided. Consider a case
where B sells A, a convicted felon, a firearm without knowing of A’s felony conviction. Should
B be held liable as an accomplice to A’s offense of possession? One court said no: Absent proof
that B knew or should have known, liability would be improper. United States v. Gardner
(6th Cir. 2007) (p. 678). Another said yes: Since A can be held strictly liable, so too can B.
United States v. Canon (9th Cir. 1993) (p. 678).
6. The Luparello exception of reasonably foreseeable consequences
Finally, in People v. Luparello (Cal. 1987) (p. 682), the court considered the case
where the defendant enlisted several rough friends to get information from his wife’s former
love at any cost. He was convicted of murder when his friends lured the lover outside and
shot him. Defendant attempted to argue that he did not “intentionally encourage or assist”
the bad act; in fact, it was the opposite of what he intended. Nevertheless, the liability of an
aider and abettor is vicarious; he is guilty not only of the offense he intended to facilitate, but
also of any reasonably foreseeable offense committed by those he aided and abetted.
(Note that the dissent in Luparello found it an unacceptable fortuity that an aider and
abettor’s liability would be conditioned on the mental state of the actor who ultimately carried
out the crime, foreseeable or not.)
For a more restricted perspective, consider Roy v. United States (D.C. App. 1995)
(p. 684), where the defendant referred a police officer to Ross to buy a handgun; Ross later
robbed the detective, and defendant was charged as an accomplice to Ross’ armed robbery.

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The court of appeals overturned the conviction, holding that the relevant test was an act “in
the ordinary course of things [which] was the natural and probable consequence of
the crime that he advised or commanded” (exchange of a handgun for $400 is qualitatively
different from an armed robbery).
Note, finally, that the MPC rejects the natural and probable consequences doctrine for
accomplice liability; the actor must have the purpose of promoting or facilitating the
commission of the offense, and when an entirely different crime has committed, not within
the conscious objectives of the accomplice, he is not liable for it.
ii. Actus Reus
Mere presence at the scene of the crime is not enough (see Hicks, supra), but apart from
that, de minimis assistance and/or encouragement is enough. See, e.g., Wilcox v. Jeffrey (U.K.
1951) (p. 687) (Wilcox was charged with aiding and abetting Coleman Hawkins in his concert
after having done little more than be present when he landed, writing about , going to the
concert, cheering, et cetera); State ex. rel. Attorney General v. Tally (Ala. 1895) (p. 689)
(Judge Tally prevented the telegraph operator from warning the victims; “[i]f the aid in
homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a
single chance of life . . . he who furnishes such aid is guilty.”). As both Wilcox and Tally make
clear, it is not necessary to establish a but-for causal relationship between the defendant’s
action and the criminal conduct.
iii. Attempted Complicity?
At common law and before the MPC, there was no liability if there was no actual aid
provided (could not “stack” attempt with aiding and abetting). Now, the Model Penal Code
holds that an accomplice is liable if he “aids or agrees or attempts to aid such other person in
planning or committing” the offense (MPC § 2.06(3)(a)(ii)). The MPC believed that an attempt
at complicity ought to be criminal regardless of its effectiveness.
What about if the crime was never committed? MPC § 2.06(3) is predictated on the actual
commission of the offense; when the principal actor does not commit the offense, he did not aid
or abet in the commission of any crime. Instead, the conduct designed to render aid may either
be attempt (MPC § 5.01(3)) or criminal conspiracy (MPC § 5.03(1)(b)).
C. SOLICITATION
Note that solicitation, rather than attempt or aiding and abetting, is a separate inchoate
offense. Under the MPC, it is defined as such:
MPC § 5.02:
(1) Definition of Solicitation. A person is guilty of solicitation to commit a crime
if with the purpose of promoting or facilitating its commission he commands,
encourages or requests another person to engage in specific conduct that would
constitute such crime or an attempt to commit such crime or would establish
his complicity in its commission or attempted commission.
(2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this
Section that the actor fails to communicate with the person he solicits to
commit a crime if his conduct was designed to effect such communication.
(3) Renunciation of Criminal Purpose. It is an affirmative defense that the
actor, after soliciting another person to commit a crime, persuaded him not to
do so or otherwise prevented the commission of the crime, under circumstances
manifesting a complete and voluntary renunciation of his criminal purpose.

Page 23
D. CONSPIRACY
A criminal conspiracy is an agreement by two or more persons to commit a crime (or do
something injurious to public morals). It operates in three separate ways: (1) as a form of liability
(see Pinkerton and its progeny infra); (2) as a separate offense (see the MPC section infra); and
(3) as a general procedural hook (e.g., joinder, joinder of counts, exceptions to hearsay, et cetera).
i. Actus Reus
The actus reus for conspiracy is the agreement itself, but from an evidentiary standpoint
this is problematic. United States v. James (5th Cir. 1976): proof must be very
circumstantial, minimal, not requiring knowledge of all the details, and they need not know all
of each other. Sometimes there is no overt act required at all and can be inferred from criminal
acts of the parties involved (Mulcahy v. The Queen (U.K. 1868) (p. 711)) other times, even
with an overt act requirement, very little more is needed; it can typically be considered
equivocal or merely preparatory (United States v. Bertling (8th Cir. 2007)). This is a very
minimal requirement, far, far short of attempt, and may be nearly pro forma.
ii. Mens Rea
With regard to mens rea, the requirement is typically purpose (like aiding and abetting
and attempt). There may, however, be exceptions, as discussed in People v. Lauria (Cal. App.
1967) (p. 713), where the court considered the criminal responsibility of a furnisher of goods
who knows the products are being used to assist the operation of an illegal business. They were
faced with two leading Supreme Court cases: United States v. Falcone, where the seller of large
quantities of sugar were absolved from participation in a moonshining conspiracy, and Direct
Sales Co. v. United States, where a drug wholesaler was convicted of conspiracy to violate the
federal narcotics laws. Falcone and Direct Sales appear to be distinguished on the basis on the
dangerous nature of the products at issue and their susceptibility to harmful and illegal use.
So while a supplier who furnishes equipment which he knows will be used to commit a serious
crime may be held complicitly liable on the basis of that knowledge, intent is required absent
such seriousness. In Lauria’s case, they held insufficient evidence of the intent to further their
criminal activities.
Note that the MPC requires purpose for conspiracy as well as for accomplice liability:
“intent is a requisite mental state for conspiracy, not mere knowledge or acquiescence.” United
States v. Scotti (2nd Cir. 1995) (p. 719).
With respect to inferring the intent to facilitate the crime in question, look to the obvious
criminal nature of the events, whether it would have been so obvious to him as to get to
knowledge, whether he chose to benefit from helping, et cetera.
iii. As a Form of Accessorial Liability
Pinkerton v. United States (U.S. 1946) (Douglas, J.) (p. 723) held that despite the fact
that Daniel Pinkerton was in jail when several of the offenses alleged were committed, there
was enough evidence to go to the jury on conspiracy. The court found that, in a continuous
conspiracy, without an affirmative action on Daniel’s part sufficient to establish his
withdrawal, he can be conspiratorially liable if the actions were (1) done in furtherance of the
conspiracy, (2) within the scope of the unlawful project, and (3) reasonably foreseeable as a
natural or necessary consequence of the conspiracy. Justice Rutledge’s dissent said that it was
a dangerous precedent threatening to hold defendants liable for having no more than conspired,
generally, in the past (a vicarious criminal liability as broad as or broader than the vicarious
civil liability of business partners).
For the full extension of the Pinkerton doctrine, consider People v. Brigham (Cal. App.
1989) (p. 732), where the court convicted the defendant on first-degree murder even after he

Page 24
tried to back his co-conspirator away, saying “[T]hat is not Chuckie. . . . Don’t do it. . . . That’s
not the dude.” The defendant was held to have been able to reasonably foresee that Bluitt, once
in motion, might kill someone other than his assigned target.
But cf. People v. McGee (N.Y. 1979) (p. 729), rejecting the Pinkerton doctrine as
repugnant to our criminal justice system because it imposes punishment not for socially
harmful offenses agreed to by the defendant but rather for substantive offenses in which he did
not participate.
Note further that the MPC rejects the Pinkerton doctrine, imposing conspiratorial liability
for the substantive crimes of their co-conspirators only when the stricter conditions for
accomplice liability are met. (MPC Commentaries: “law would lose all sense of just proportion
if simply because of the conspiracy” defendants “were held accountable for thousands of
additional offenses . . . [they] did not influence at all.”)
Finally, note that Pinkerton liability is not retroactive.
iv. As a Separate Offense
There are many examples, but consider the MPC:
MPC § 5.03:
(1) Definition of Conspiracy. A person is guilty of conspiracy with another
person or persons to commit a crime if with the purpose of promoting or
facilitating its commission he: (a) agrees with such other person or persons
that they or one or more of them will engage in conduct that constitutes such
crime or an attempt or solicitation to commit such crime; or (b) agrees to aid
such other person or persons in the planning or commission of such crime or
of an attempt or solicitation to commit such crime. . . .

III. AFFIRMATIVE DEFENSES & MITIGATING OR EXCULPATING


DOCTRINES
These general and complete defenses to criminal prosecution rest, in terms of burden of production
and (usually) persuasion, on the defendant. Customarily, these are divided into two categories: those
of justifications (admission, but the defendant was right to do it) (e.g., self-defense, infra) and
excuses (admission; the defendant was not right, exactly, but we should not attach blame) (e.g.,
insanity, infra).
Some are complete affirmative defenses (e.g., unconsciousness, perfect self-defense); others
operate only to mitigate elements of the crime or negative one of the required elements of a crime.
A. UNCONSCIOUSNESS
Unconsciousness is a complete affirmative defense to most crimes. See, e.g., People v.
Newton (Cal. 1970) (p. 207), where the court reversed the conviction of Huey Newton for
voluntary manslaughter on grounds that he was involuntarily unconscious during the commission
of the offense. Unconsciousness, they held, is a complete defense to a criminal homicide charge:
refusal to instruct the jury on involuntary unconsciousness was prejudicial error.
Note that we did not discuss this as an affirmative defense itself, though it clearly is one,
insofar as an unconscious defendant cannot be held to have committed the requisite actus reus
necessary for the commission of a crime.
B. SELF-DEFENSE
The general standard is succinctly stated in United States v. Peterson (D.C. Cir. 1973)
(p. 818): the affirmative defense of self-defense is available to exonerate a defendant when the

Page 25
defendant has an honestly held and objectively reasonable belief that force was necessary to save
him from imminent peril of death or serious bodily harm. As such, it is really best understood as
either a justification or an excuse, as a reasonable belief at the time that turned out not to be true
is still justified.
i. Relevant MPC Provisions
MPC § 3.04:
(1) Use of Force Justifiable for Protection of the Person. Subject to the
provisions of this Section and of Section 3.09, 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.
(2) Limitations on Justifying Necessity for Use of Force.
(a) The use of force is not justifiable under this Section: (i) to resist an arrest
. . . ; or (ii) to resist force used by the occupier or possessor of property . . . .
(b) The use of deadly force is not justifiable under this Section unless the actor
believes that such force is necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by force or threat;
nor is it justifiable if: (i) the actor, with the purpose of causing death or serious
bodily injury, provoked the use of force against himself in the same encounter;
or (ii) the actor knows that he can avoid the necessity of using such force with
complete safety by retreating . . . .
(c) Except as required by paragraphs (a) and (b) of this Subsection, a person
employing protective force may estimate the necessity thereof under the
circumstances as he believes them to be when the force is used, without
retreating, surrendering possession, doing any other act that he has no legal
duty to do or abstaining from any lawful action. . . .
MPC § 3.05:
(1) Subject to the provisions of this Section and of Section 3.09, the use of force
upon or toward the person of another is justifiable to protect a third person
when: (a) the actor would be justified under Section 3.04 in using such force to
protect himself against the injury he believes to be threatened to the person
whom he seeks to protect; and (b) under the circumstances as the actor believes
them to be, the person whom he seeks to protect would be justified in using
such protective force; and (c) the actor believes that his intervention is
necessary for the protection of such other person.
MPC § 3.06:
(1) Use of Force Justifiable for Protection of Property. . . . [T]he use of force
upon or toward the person of another is justifiable when the actor believes that
such force is immediately necessary: (a) to prevent or terminate an unlawful
entry or other trespass upon land or a trespass against or the unlawful
carrying away of tangible, movable property . . . ; or (b) to effect an entry or re-
entry upon land or to retake tangible movable property . . . .
(3) Limitations on Justifiable Use of Force.
(a) Request to Desist. The use of force is justifiable under this Section only if
the actor first requests the person against whom such force is used to desist
from his interference with the property, unless the actor believes that: (i) such
request would be useless; or (ii) it would be dangerous to himself or another
person to make the request; or (iii) substantial harm will be done to the

Page 26
physical condition of the property that is sought to be protected before the
request can effectively be made.
(b) Exclusion of Trespasser. The use of force to prevent or terminate a trespass
is not justifiable under this Section if the actor knows that the exclusion of the
trespasser will expose him to substantial danger of serious bodily injury. . . .
(d) Use of Deadly Force. The use of deadly force is not justifiable under this
Section unless the actor believes that: (i) the person against whom the force is
used is attempting to dispossess him of his dwelling otherwise than under a
claim of right to its possession; or (ii) the person against whom the force is used
is attempting to commit or consummate arson, burglary, robbery or other
felonious theft or property destruction and either: (A) has employed or
threatened deadly force against or in the presence of the actor; or (B) the use
of force other than deadly force to prevent the commission or the
consummation of the crime would expose the actor or another in his presence
to substantial danger of serious bodily injury.
ii. The Imminent Danger Requirement
The context of battered women shines a cold light on the failings of the imminent danger
requirement for the self-defense defense. In State v. Norman (N.C. 1989) (p. 848), the court
affirmed defendant’s conviction for voluntary manslaughter after she murdered her husband,
who abused her in an ongoing and particularly terrifying way. The Court of Appeals had
ordered a new trial on the theory that a jury could reasonably have found that the defendant
killed her husband in perfect self-defense because of her battered woman status, but the state
supreme court disagreed. The term “imminent” must be met; here, her husband had been
asleep, so in spite of her torture and abuse, she was not confronted by a threat of imminent
death. The dissent strongly disagreed, arguing that the question was not whether the threat
was in fact imminent, but rather whether the defendant’s belief in the impending nature of the
threat was reasonable in the mind of a person of ordinary firmness. See also Jahnke v. State
(Wyo. 1984) (p. 853) (abused boy convicted of murdering his abusive father after lying in wait;
the evidence of battered child syndrome was excluded, with the court placing great weight on
the imminent threat requirement (such evidence would only be considered in assessing the
reasonableness of the fear based off of that imminent threat)); Commonwealth v. Sands (Va.
2001) (p. 854) (again, in the absence of any overt act by her abusive husband presenting an
imminent danger at the time of the shooting, the battered-woman defendant was not entitled
to any instruction on self-defense).
Note that the imminent danger requirement has been called into doubt in other contexts
as well. See State v. Schroeder (Neb. 1978) (p. 857) (defendant stabbed his prison cellmate
out of fear for his life and sexual integrity; the court held that there was “a very real danger in
a rule which would legalize preventive assaults involving the use of deadly force where there
has been nothing more than threats,” while the dissent felt the jury could have analyzed
whether he was justified to protect himself against an attack “on the present occasion”); Ha v.
State (Alaska App. 1995) (victim, Buu, beat the defendant severely and continued to threaten
that he would kill him; Ha spent a sleepless night and, feeling that there was no escape, killed
him; the court upheld the conviction, stressing that “‘inevitable harm’ is not the same as
‘imminent’ harm. A reasonable fear of future harm does not authorize a person to hunt down
and kill an enemy.”).
Some jurisdictions have relaxed this strict standard. See, e.g., MPC § 3.04(1)
(“immediately necessary”); State v. Janes (Wash. 1993) (p. 858): “A threat, or its equivalent,
can support self-defense when there is a reasonable belief that the threat will be carried out.”

Page 27
There are many reasons to doubt this requirement, including (perhaps most conclusively):
why should this matter? If imminent harm is merely a proximate for the idea of necessity, why
not just let juries assess necessity?
iii. Problems with the Objectively Reasonable Belief Standard
Look no further in general than the People v. Goetz (N.Y. 1986) (p. 819) case, with its
many issues as to what a reasonable person would have felt in Goetz’s situation, whether race
or contextual experience or prejudices should (or do) enter into the equation, et cetera. Note
that the holding in Goetz was that the relevant standard was that of a reasonable man in the
defendant’s situation, rejecting the instruction to the grand jurors that that meant “whether a
defendant’s beliefs and reactions were ‘reasonable to him.’”
Further problems with the objectively reasonable standard are demonstrated by the
battered women cases discussed supra: how to measure this objectively reasonable question,
particularly given (i) that battered women exist outside of the limits of rational calculation and
(ii) the difficulties in how to weigh which of the experiences and physical differences should be
taken into account.
iv. Imperfect Self-Defense
In response to the problem arising when a defendant has an honestly held belief in the
need to use lethal force that is later determined to be unreasonable, some states have developed
a doctrine of “imperfect self-defense,” a migitation doctrine classifying the crime as voluntary
manslaughter (“malice” is lacking, similar to that of a killing in a crime of passion).
The Model Penal Code, similarly, holds that a person who kills in the honest but
unreasonable belief would be guilty of negligent homicide. This has not, however, been very
influential.
v. Duty to Retreat, Stand-Your-Ground Laws and the Castle Doctrine
At common law, there was a strict duty to retreat; a person could only use deadly force
with his “back to the wall.” Later, U.S. courts began to substitute the “true man” principle, or
no-retreat rule, giving effect to what a historian called “a proud new tolerance for killing in
situations where it might have been avoided.”
In a highly influential case, State v. Abbott (N.J. 1961) (p. 863), the N.J. court held that
(1) the duty to retreat is best restricted to uses of deadly force rather than any force altogether;
and (2) deadly force, rather than retreat, is not justifiable if the actor knows that he can avoid
the necessity of using such force with complete safety by retreating (recognizing that it would
be inane to “require nice calculations.” Most states at the time of Abbott followed the no-retreat
“true man” approach; since Abbott, it has been in major flux.
A recent complication has been the “stand your ground” laws permitting an actor to
meet force with force, including deadly force, even when retreat is entirely possible. Consider
the Florida stand-your-ground statute:
A person who is not engaged in an unlawful activity and who is attacked . . .
has no duty to retreat and has the right to stand his or her ground and meet
force with force, including deadly force if he or she reasonably believes it is
necessary to do so to prevent death or great bodily harm to himself . . .”
The “castle” doctrine or exception, even in jurisdictions that have the duty to retreat,
refers to the fact that the duty to retreat does not apply if a defendant is attacked in his own
home by an intruder, or even by guests or co-occupants.

Page 28
vi. Forfeiture of Self-Defense as First Aggressor
In United States v. Peterson (D.C. Cir. 1973) (p. 868), the court applied the classic rule
of forfeiture of self-defense for the aggressor; defendant Peterson’s conviction was affirmed
because he was clearly the aggressor, brandishing a pistol, daring the victim to come in: “an
affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or
fatal consequences is an aggression which . . . nullifies the right of homicidal self-defense.”
Interestingly, the court refers to Laney v. United States (D.C. Cir. 1923) (p. 869), which was
a case refusing to apply the self-defense defense to a black man in the middle of, essentially, a
pogrom in D.C.; it is hard to see that the defendant in Laney was similarly not entitled as the
defendant in Peterson. (Should we craft an exception for the situation in Laney that does not
cover that in Peterson?) See also Allen v. State (Okla. App. 1994) (p. 870) (“If a person by
provocative behavior initiates a confrontation . . . she loses the right of self-defense.”).
In a few states, a nonlethal aggressor can regain a right to self-defense if met with an
excessive, disproportionate, life-threatening response. The MPC is an example of this
proportionality (see §§ 3.04(2)(b)(i)–3.04(2)(b)(ii)).
vii. Protection of Property
Generally speaking, the use of force is justified by an objectively reasonable belief that
force was necessary to protect against unlawful expropriation or invasion.
One rule is to limit the use of deadly force against an intruder in the home to situations
in which there is a threat of great bodily harm against the person. In People v. Ceballos (Cal.
1974) (p. 872), the booby-trapped garage case, the court elected not to engage in a literal
reading of the statute saying that homicide was justifiable (1) when resisting any attempt to
murder, or to do a felony, or to do some great bodily injury upon a person, or (2) when committed
in defense of habitation, property, or person, against one who manifestly intends . . . to commit
a felony.” Instead, such acts must have reasonably created a fear of great bodily harm for there
to be a justification of lethal force, or a “forcible and atrocious” crime of surprise. The court
considered the “supreme value of human life” and held that, since nobody was on the premises,
it represented no threat to life.
Ten years after Ceballos, California enacted a “Home Protection Bill of Rights”:
Any person using [deadly] force . . . within his or her residence shall be
presumed to have held a reasonable fear of imminent peril of death or great
bodily injury . . . when that force is used against another person . . . who
unlawfully and forcibly enters . . . and the person using the force knew or had
reason to believe that an unlawful and forcible entry occurred.
Still broader is the Colorado “Make-My-Day” Law:
[A]ny occupant of a dwelling is justified in using any degree of physical force,
including deadly physical force, against another person when that other
person has made an unlawful entry into the dwelling, and when the occupant
has a reasonable belief that such other person has committed a crime in the
dwelling in addition to the uninvited entry . . . and when the occupant
reasonably believes that such other person might use any physical force, no
matter how slight, against any occupant. Any occupant of a dwelling using
physical force, including deadly physical force . . . shall be immune from
criminal prosecution for the use of such force.
Broader still is the Florida stand-your-ground law enacted in 2005, which applies to
vehicles as well as dwellings and to attempted as to completed entries:

Page 29
A person is presumed to have held a reasonable fear of imminent peril of death
or great bodily harm to himself or herself or another when using or threatening
to use defensive force that is intended or likely to cause death or great bodily
harm to another if: (a) The person against whom the defensive force was used
or threatened was in the process of unlawfully and forcefully entering, or had
unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or
if that person had removed or was attempting to remove another against that
person’s will from the dwelling, residence, or occupied vehicle; and (b) The
person who uses or threatens to use defensive force knew or had reason to
believe that an unlawful and forcible entry or unlawful and forcible act was
occurring or had occurred.
These statutes can give rise to horrifyingly distorted outcomes. E.g. the Yoshihiro Hattori
Halloween costume shooting case at pp. 877–78 of the casebook.
On the issue of other types of property other than habitation, cars, et cetera, consider
Sydnor v. State (Md. 2001) (p. 878), where the defendant shot a man who had robbed him
and was fleeing hive times in the back. The majority affirmed the conviction of voluntary
manslaughter, holding that deadly force could not be used because it was not necessary to avoid
imminent danger of death or seriously bodily harm. The dissent disagreed, saying that the
decedent was still in the process of attempting to complete the robbery, in the forcible taking
and carrying away of property, therefore making Sydnor’s actions appropriate.
C. NECESSITY / CHOICE-OF-EVILS
The defense of necessity is the choice-of-lesser-evils defense exemplified in the following
Illinois state statute:
Ill. Rev. Stat. 1971, ch. 38, ¶¶ 7–13:
Conduct which would otherwise be an offense is justifiable by reason of
necessity if the accused was without blame in occasioning or developing the
situation and reasonably believed such conduct was necessary to avoid a public
or private injury greater than the injury which might reasonably result from
his own conduct.
Consider the Model Penal Code’s take on the defense of necessity:
MPC § 3.02(1):
Conduct that the actor believes to be necessary to avoid a harm or evil to
himself or to another is justifiable, provided that: (a) the harm or evil sought
to be avoided by such conduct is greater than that sought to be prevented by
the law defining the offense charged; and (b) neither the Code nor other law
defining the offense provides exceptions or defenses dealing with the specific
situation involved; and (c) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear. . . .
The paradigmatic example is a family of four who, by no fault of their own, are stranded in
the cold and break into an empty cabin for shelter. They can use the defense of necessity to
exculpate themselves.
Necessity, though, hemmed in in a variety of ways, some evident in the statutory definitions
above and others which have developed over time:
i. Imminence or Emergency Requirements
Many jurisdictions require the harm or evil to be “imminent,” or even (in the case of New
York) as “an emergency measure to avoid an imminent public or private injury.”

Page 30
The Model Penal Code, however, thought that the New York requirement unduly
emphasizes one ingredient; genuine necessity does rest of the unavailability of alternatives,
but it is a mistake to erect imminence as an absolute requirement.
ii. Equitable Forfeiture (“Clean Hands”)
The New York statute and many states have a strict clean-hands rule, requiring that the
necessity for action be occasioned or developed “through no fault of the actor.”
The Model Penal Code, in § 3.02(2), instead codifies a version of the equitable forfeiture
doctrine providing for prosecution where negligence would suffice but maintaining the choice-
of-evils defense for offenses committed that would require a higher culpability level:
MPC § 3.02(2):
When the actor was reckless or negligent in bringing about the situation
requiring a choice of harms or evils or in appraising the necessity for his
conduct, the justification afforded by this Section is unavailable in a
prosecution for any offense for which recklessness or negligence, as the case
may be, suffices to establish culpability.
iii. Indirect Civil Disobedience
See United States v. Schoon (9th Cir. 1992) (p. 896) (defendants not allowed to invoke the
necessity defense as a matter of law because they were engaged in indirect civil disobedience;
there can be no such defense for civil disobedience cases, which lack the necessary nexus
between the act undertaken and the result sought (“act alone is unlikely to abate the evil
precisely because the action is indirect”).
iv. Clear Legislative Intent
As stated in MPC § 3.02(1)(c), the defense of necessity is only available if “a legislative
purpose to exclude the justification claimed does not otherwise plainly appear.” This means
that “the general choice of evils defense cannot succeed if the issue of competing values has
been previously foreclosed by a deliberate legislative choice.”
On this point, see Commonwealth v. Leno (Mass. 1993) (p. 891) (defendants wanted to
distribute hypodermic needles for AIDS prevention and sought to use defense of necessity; the
court affirmed the judge’s refusal to instruct on necessity, saying that whether the hypodermic
needle distribution ban was wise or effective is within the province of the legislature, not the
courts).
v. Homicide
Perhaps the most classic case in the criminal law canon, Regina v. Dudley & Stephens
(U.K. 1884) (p. 83) stands for the proposition at common law that necessity was not a viable
affirmative defense in the case of violent crime, i.e., in the murder and cannibalism of Richard
Parker. Of course, Lord Coleridge’s opinion contrasts that of other legal scholars, e.g. Lord
Bacon, who seems to argue for the defense of necessity. This seems to reflect the refusal to
calculate the value of a life. Cf. United States v. Holmes (Pa. 1842) (p. 899), where nine
seamen and 32 passengers were adrift on a grossly overcrowded life boat; the first mate ordered
all male passengers without wives to be thrown overboard; the court held that while two equal
men in such a situation would not “commit a crime in saving his own life for the only means of
safety,” as long as it was drawn by lot, but this did not apply between the sailor and the
passenger (special duty and special relationship).
Note that this may nevertheless be permitted under the MPC, which does not prohibit the
necessity defense for the use of lethal force. The MPC goes quite the other way: “The life of
every individual must be taken . . . to be of equal value and the numerical preponderance in

Page 31
the lives saved compared to those sacrificed surely should establish legal justification for the
act.”
vi. Medical Necessity
Courts are unlikely to allow the necessity defense to be used in a case of medical growth
of marijuana, for instance, out of general policy concerns. See Commonwealth v. Hutchins
(Mass. 1991) (p. 893).
vii. Economic Necessity
Courts are firmly reticent to extend the choice-of-evils defense of necessity to cases of
economic necessity, even when the situations involve dire health or safety concerns. See
Borough of Southwark v. Williams (U.K. 1971) (p. 894) (in an extreme housing shortage,
homeless defendants were not able to use the necessity defense: “If homelessness were once
admitted as a defence to trespass, no one’s house could be safe.”); People v. Fontes (Colo.
App. 2003) (p. 895) (defendant convicted of cashing a forged check to feed his starving children
had his conviction affirmed: “a choice of evils defense cannot be based upon economic
necessity.”).
viii. Prison Escapes
In People v. Unger (Ill. 1977) (p. 885), the court considered a jury instruction that a
defendant’s reasons for escaping prison, namely to escape great physical harm or sexual
violence, could not be considered, and a corresponding refusal to instruct on necessity. Several
decisions acknowledged necessity’s relationship to prison escapes, most notably People v.
Lovercamp (Cal. 1974) (see p. 887), which said that necessity was a viable defense but limited
to (1) specific threat of death or sexual attack; (2) no time to complain to authorities or a history
of futile complaints; (3) no time to resort to the courts; (4) no evidence of force or violence used
towards prison personnel; and (5) prisoner immediately reports to proper authorities. Unger
took Lovercamp further by saying that each condition is not necessary to establish a
meritorious necessity defense; defendant did not immediately return to the camp, but he was
nevertheless entitled to submit his case to the jury for their evaluation. (The dissent in Unger
preferred to stick with Lovercamp’s well-defined boundaries.)
D. DURESS
Duress is an affirmative defense of excuse rather than justification and is limited to
situations when the treat of harm or danger forces a defendant to do something that is not
“justified,” but because of the threat society is loath to label him a criminal.
i. Relevant Model Penal Code Provision
MPC § 2.09:
(1) It is an affirmative defense that the actor engaged in the conduct charged
to constitute an offense because he was coerced to do so by the use of, or a
threat to use, unlawful force against his person or the person of another, that
a person of reasonable firmness in his situation would have been unable to
resist.
(2) The defense provided by this Section is unavailable if the actor recklessly
placed himself in a situation in which it was probable that he would be
subjected to duress. The defense is also unavailable if he was negligent in
placing himself in such a situation, whenever negligence suffices to establish
culpability for the offense charged. . . .

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ii. Various Levels of the Imminence Requirement
At common law, the defense of duress was recognized only when the alleged coercion
involved a use or threat of harm that is “present, imminent and pending” and “of such a nature
as to induce a well grounded apprehension of death or serious bodily harm of the act is not
done.” This was treated as an absolute prerequisite. See, e.g., United States v. Fleming
(C.M.R. 1957) (p. 935) (despite terrifying Korean prison conditions and serious threats,
defendant’s conviction for collaboration with the enemy could not be excused on duress due to
“the mere assertion of the threats”; as he had not been brought to the last ditch,” danger was
not imminent and he cannot avail himself of the defense of duress); United States v.
Contento-Pachon (9th Cir. 1984) (p. 936) (despite many threats by drug traffickers to the
threat of the defendant, his wife, and his child, “vague threats of possible future harm” were
insufficient, as the immediacy and inescapability of the threat are essential elements for use of
the duress defense). But cf. Regina v. Ruzic (Canada 1998) (p. 938) (Ontario Court of Appeal
upholds the acquittal of a woman threatened into sneaking heroin into Toronto, finding that
the limitations of immediacy in the Canadian Criminal Code violated her rights and freedoms;
to convict her in such a situation would amount to convicting the innocent in violation of the
principles of fundamental justice) (gotta love Canada).
Minnesota is even stricter, requiring the threat of “instantaneous death.”
The Model Penal Code, however (see infra) instead only requires that the threat be
sufficient that “a person of reasonable firmness in his situation would have been unable to
resist.” This was the approach followed by the court in State v. Toscano (N.J. 1977) (p. 924),
where the defendant was charged with conspiring in an insurance fraud and claimed that he
acted under duress because of threats made against him and his wife. The trial judge instructed
on a present, imminent and impending death or bodily harm standard. Instead, the court held
that “duress shall be a defense to a crime other than murder if the defendant engaged in
conduct because he was coerced to do so by the use of, or threat to use, unlawful force against
his person or the person of another, which a person of reasonable firmness in his situation
would have been unable to resist.”
iii. Homicide
At common law, duress did not excuse the killing of an innocent person even if the accused
acted in response to immediate threats.
Under the MPC, duress excuses homicide altogether.
In New Jersey, in a statute enacted after the decision in Toscano, supra, duress is a
defense that can only mitigate murder to manslaughter.
iv. War Crimes
Some international criminal tribunals have held that duress is not a viable defense for
crimes against humanity and war crimes. See Prosecutor v. Erdemovic (ICTY 1997) (p. 941).
v. Contributory Fault
It is quite common that, if a defendant joins a criminal organization or takes some such
similar wrongful action that puts himself at the risk of pressure, he cannot use the defense of
duress. If, however, the criminal enterprise is such that he cannot expect such pressure, then
the defense of duress should still apply. See the casebook at p. 939.
vi. Other Disagreements in the Application of Duress
Courts disagree as to whether the defense of duress should depend on factors like
immaturity of mental retardation; some hold that evidence of low IQ must not be admitted to

Page 33
modify the “reasonable person” standard for duress, while others say that they must be taken
into account when considering an actor’s “situation.”
Courts also disagree as to whether battered-woman’s syndrome evidence is admissible in
a claim of duress for participating in a crime such as a robbery or drug deal under pressure
from her abuser.
vii. Note on Historical and Current Comparisons Between Necessity and Duress

“Do it, or else”: threats imposed by Other exigency: natural emergencies,


another person et cetera

Lesser evil Necessity (included in more modern law; Necessity (historically): provided the
MPC and other states; partly reflective of balance of choice of evils works out in
the fact that the MPC is willing to allow favor of the action, it is justified in the
justification defenses regardless of the event of some exogenous exigency
source of the peril.

Overborne will Duress (traditional threats from another Note that this is not included: there is no
person; excuse, not a justification) defense of duress due to overborne will for
an exogenous exigency (not a threat from
another)

E. INTOXICATION
Intoxication is an enormous part of the criminal law, as a startling percentage of crimes are
committed when one or more parties is drunk. Nevertheless, voluntary intoxication is never
an affirmative defense. Roberts v. People (Mich. 1870) (p. 944): “a defendant must be
presumed to have intended the obscuration and perversion of his faculties which followed from
his voluntary intoxication.”
This reluctance has many rationales, including the sheer number of crimes this would touch
(but, then, why not consider it?); and there is another line of thinking where people who become
drunk and do bad acts are precisely the type of people who we want to punish.
The relevant questions with respect to intoxication then become: in what circumstances can
evidence of intoxication be used to disprove that a defendant may be charged with a crime, either
by showing that he could not have committed the crime or lacked the appropriate mental state?
i. Relevant Model Penal Code Provision
MPC § 2.08:
(1) Except as provided in Subsection (4) . . . , intoxication of the actor is not a
defense unless it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor, due
to self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial. . . .
(4) Intoxication that (a) is not self-induced or (b) is pathological is an
affirmative defense if by reason of such intoxication the actor at the time of his
conduct lacks substantial capacity either to appreciate its criminality
[wrongfulness] or to conform his conduct to the requirements of law.
(5) Definitions. . . . “pathological intoxication” means intoxication grossly
excessive in degree, given the amount of the intoxicant, to which the actor does
not know he is susceptible.

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The Model Penal Code therefore establishes three main rules with respect to intoxication:
(1) if intoxication is involuntary (not self-induced or pathological), it is only an affirmative defense
if it rises to the level of insanity (see infra); and (2) intoxication is only a defense if it negatives an
element of the offense, but (3) not with respect to recklessness (meaning, in general, that evidence
of intoxication is relevant to disprove purpose or knowledge when they are the requisite mental
elements of a particular crime.
ii. Caselaw Treatment of Evidence of Voluntary Intoxication
Many jurisdictions follow the specific intent vs. general intent division. See, e.g., United
States v. Veach (6th Cir. 2006) (p. 948) (defendant’s intoxication was irrelevant to a charge of
simple assault to relevant for whether he formed the specific “intent to impede” an officer in the
course of his duties).
In a similar line as Veach, consider People v. Hood (Cal. 1969) (Traynor, C.J.) (p. 944).
Traditionally, no act committed under voluntary intoxication is less criminal by reason of the
intoxication; but the jury may take intoxication into account when considering the existence of a
particular specific purpose, motive, or intent necessary to constitute a particular species of crime.
Justice Traynor, struggling with the fact that assault with a deadly weapon could equally be
characterized as a crime of specific or general intent, instead relied on the following distinction:
(1) if doing something “simple,” like striking another, then evidence of intoxication has no bearing;
(2) if, however, the defendant is accused of doing something with some other ultimate purpose,
such as formulating an intent to commit battery for some other purpose like killing, then evidence
of intoxication should be considered. Cf. State v. Stasio (N.J. 1979) (p. 947), which held that the
specific–general intent difference led to incongruous results, relying on public safety arguments;
though assault with an intent to rob was a specific intent crime, the evidence was disallowed.
As noted by the court in Stasio (see p. 947), evidence of intoxication still may be used to
demonstrate that a defendant never participated in a crime at all, e.g., that he was in such a
drunken stupor and unconscious state that he could not have taken part. It can also be used to
demonstrate that there was no premeditation and deliberation (in a first-degree murder case), or
on the contrary to show that the intoxication led to a fixed (not temporary) state of insanity. And
finally, the Stasio court (partly, I think, in an attempt to justify its exclusion of intoxication for
specific or general intent crimes) also said that intoxication can be considered when sentencing a
defendant. Note further that the dissent in Stasio argues strongly that the lack of intent to rob or
steal because of intoxication should be a viable defense.
Interestingly, the California and New Jersey legislatures diverged after Hood and Stasio,
respectively. In California, the statute provides that voluntary intoxication evidence is admissible
solely on specific intent (premeditation, deliberation, express malice), but not implied malice (e.g.,
depraved-heart recklessness). In New Jersey, the legislature enacted a post-Stasio provision that
intoxication evidence could be considered in determining purpose or knowledge, not recklessness
or negligence.
As noted above, the Model Penal Code allows for consideration of evidence of voluntary
intoxication if it negatives an element of the offense (with the exception of the recklessness carve-
out).
iii. Involuntary Intoxication
If a defendant is involuntarily intoxicated, but to a degree insufficient to meet the test for
legal insanity, no defense is available. See MPC §§ 2.08(4)–2.08(5); Regina v. Kingston (U.K.
1994) (p. 954) (in considering a case where defendant was allegedly drugged before he committing
sexual abuse of a 15-year-old boy (blackmail), the lower court of appeal set aside a conviction since
involuntary intoxication negatives the mens rea required for formation of intent; Lord Mustill, for
the House of Lords, rejected this finding, holding that justice made no demands for it; there are

Page 35
massive evidentiary concerns; and if the involuntary intoxication dealt with disinhibition, rather
than causing someone to form the intent, then it does not negate the mens rea.
(Note that the Kingston decision is best understood as an example of the fierce limits of
intoxication as a defense, even one to disprove that a defendant had the necessary mens rea; it
does not necessarily square, for instance, with the rest of the precedents.)
F. INSANITY
Insanity is another somewhat disfavored doctrine providing an affirmative defense of excuse
to some individuals who cannot understand that what they do is illegal or wrong, or to those who
cannot sufficiently control their actions.
As a preliminary note, be careful to distinguish insanity (focusing on the mental state and
capacity of the accused at the time of the alleged illegal act) from competence (a federal
constitutional test on an accused’s ability to stand trial, focusing on (i) his ability to understand
the charges against him and (ii) assist in his own defense).
We start by reviewing the four tests for insanity and proceed to a series of common questions
under the doctrine.
i. The M’Naughten Test
In M’Naghten’s Case (U.K. 1843) (p. 968), defendant was charged with murdering the
secretary to the prime minister, Robert Peel, and claimed delusions and acute insanity. The
House of Lords held that a man should be presume sane until proven otherwise, and to
establish an insanity defense, it must be clearly proved at the time of committing the act, the
party accused “was laboring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing; or, if he did know it, that he did not know
he was doing what was wrong.”
The MPC commentaries develop two criticisms of the M’Naghten rule: (1) by addressing
itself only to the actor’s “knowledge,” which can be understood as awareness, it means that it
authorizes a finding of responsibility in a case where the actor is not seriously deluded on his
conduct, but in which the actor’s appreciation of the wrongfulness is a largely detached or
abstract awareness not penetrating to the affective level; and (2) the volitional will problem,
cases when the defendant’s disorder destroys or overrides the power of self-control even if he
knows his actions to be wrong.
The history of this insanity defense can be characterized as moving away from and back
to this foundational M’Naghten test. In United States v. Lyons (5th Cir. 1984) (p. 975), for
instance, the court rejected the volitional prong of the Model Penal Code in a case where the
defendant raised an insanity defense based on narcotics addiction, holding instead: “a person
is not responsible for criminal conduct on the grounds of insanity only if at the time of that
conduct, as a result of a mental disease or defect, he is unable to appreciate the wrongfulness
of that conduct.”
ii. The Davis Test
What could be termed an extreme version of the M’Naghten test, with the additional
element of an early “volitional” provision, can be found in Davis v. United States (U.S. 1897)
(see p. 972) (see infra): “such a perverted and deranged condition of the mental and moral
faculties as to render a person incapable of distinguishing between right and wrong, or
unconscious . . . or where, though conscious of it and able to distinguish between right and
wrong . . . yet his will, by which I mean the governing power of his mind, has been otherwise
than voluntarily so completely destroyed that his actions are not subject to it, but are beyond
his control.

Page 36
Note that the Davis test was rejected in Blake in favor of the substantiality test discussed
infra.
iii. The “Irresistible Impulse” Test
The irresistible impulse test, now abandoned in every jurisdiction, held that people could
not be convicted for an “irresistible impulse” caused by a mental disease or defect (volitional
defect such that you cannot control your impulse or change your behavior).
Though no longer in force anywhere, it has been incorporated as a volitional prong in some
of the modern standards, e.g. that of the MPC.
iv. The “Product” Test (Durham)
The only inquiry for the “product” or Durham test, the most permissive, is whether the
crime was the result of a mental disease or defect. Few jurisdictions follow this anymore (New
Hampshire being the exception).
v. The MPC Substantiality Test
MPC § 4.01:
(1) A person is not responsible for criminal conduct if at the time of such
conduct as a result of mental disease or defect he lacks substantial capacity
either to appreciate the criminality [wrongfulness] of his conduct or to conform
his conduct to the requirements of law.
(2) As used in this Article, the terms “mental disease or defect” do not include
an abnormality manifested only by repeated criminal or otherwise antisocial
conduct.
In Blake v. United States (5th Cir. 1969) (p. 971), the court rejected the Davis standard,
finding the Model Penal Code standard on substantiality a better approximation of the current
knowledge on mental illness. A psychotic person might fall short of the Davis standard but still
fall into the MPC standard and might be deserving of the defense. Note further, though, that
in 1984, the 5th Circuit abandoned the MPC definition of insanity, holding that the volitional
poing did not comport with medical and scientific knowledge. See United States v. Lyons (5th
Cir. 1984) (p. 975). But cf. id. (Rubin, J., dissenting) (see pp. 976–79), which sets out a
terrific critique of the majority’s reasoning and in favor of the volitional prong, without which
“guilt cannot be attributed to an individual unable to refrain from violating the law.”
The MPC commentaries say that “substantial” means “a capacity of some appreciable
magnitude when measured by the standard of humanity in general.”
vi. Issues with Criminality / Wrongfulness
State v. Crenshaw (Wash. 1983) (p. 988) illuminates several of the issues with the fact
that a defendant must not be able to appreciate either the criminality or the wrongfulness of
his conduct. The defendant there testified that his Moscovite religious faith made him fully
believe that slaughtering his wife was the right thing to do. There, the court held that “wrong”
meant “only those persons ‘who have lost contact with reality so completely that they are
beyond any of the influence of the criminal law’”; Crenshaw knew that his actions were illegal
and that they were morally wrong by today’s standards, so his personal belief cannot serve to
exculpable him from legal responsibility. Nor was Crenshaw allowed the deific decree
exception, as he followed his personal belief about his duty rather than what he saw as a “deific
decree” (a meaningless distinction, in my mind).
Crenshaw thus illustrates two difficulties: (1) whether the test is concerned with the
defendant’s awareness that something is legally wrong, or whether the more relevant test is if

Page 37
something is morally wrong as measured by a societal standard of morality; and (2) whether
to give credence to a claim of religious belief is a laden issue.
vii. Issues “Mental Disease or Defect”
This is another category with some difficulty. First, note the Model Penal Code’s
reluctance to allow for a claim of sociopathy alone (without further evidence) to exculpate a
defendant from repeatedly atrocious behavior. See MPC § 4.01(2), often known as the “caveat
paragraph.” Second, note State v. Guido (N.J. 1963) (p. 992), which demonstrates the
difficulties distinguishing between medical and legal definitions of insanity.
G. DIMINISHED CAPACITY & DIMINISHED RESPONSIBILITY
The would-be doctrine of diminished responsibility, which is not in force in any U.S.
jurisdiction but which may be tempting, is that evidence of insanity might be a partial affirmative
defense (like provocation), mitigating the degree of a crime. A homicide that might otherwise be
murder committed in part because of diminished responsibility due to a mental disease or some
such defect, for instance, might be knocked down to manslaughter. While no jurisdiction has
diminished responsibility, such evidence can be taken into account at sentencing. (Note, though,
that it seems to me that the MPC “extreme emotional disturbance” language for mitigating
murder to the equivalent of voluntary manslaughter in provocation gets close.)
Diminished capacity, however, is a doctrine (similar to the use of evidence of intoxication)
whereby evidence of mental disease or defect not quite rising to the level of legal insanity lacked
the specific intent or mental state necessary to be convicted of a crime. United States v. Brawner
(D.C. Cir. 1972) (p. 998) (mental condition may be used to negative the element of premeditation
or specific intent; it cannot be the case that voluntary intoxicated defendants get that option, but
mentally abnormal defendants do not: “permits the introduction of expert testimony as to
abnormal condition if it is relevant to negative, or establish, the specific mental condition that is
an element of a crime”).
Many jurisdictions provide limits on what type of evidence of diminished capacity can be
presented, however. In Clark v. Arizona (U.S. 2006) (p. 1000), for instance, the Court upheld
Arizona’s prohibition of opinion expert testimony; while “observation evidence” is permitted,
mental-disease and capacity evidence is not allowed. The Court recognized the controversial
character of the defense and evinced a distrust of professional testimony and juries. The Kennedy
dissent, however, did not agree with Arizona’s categorical exclusion, arguing that Arizona’s
exclusion is “so plainly unreasonable” that it cannot be allowed.
In California, diminished capacity was abolished altogether. Under the Federal Rules of
Evidence, expert witnesses can state opinions about a defendant’s psychological characteristics,
but not opine as to whether he did have the mental state or condition at the time of the offense.

IV. HOMICIDE: TYPES & REQUIREMENTS


MPC § 210.1(1) defines the general crime of homicide where an actor “purposely, knowingly,
recklessly or negligently causes the death of another human being,” with three main types under the
MPC: murder, manslaughter, or negligent homicide. At common law, there were similar divisions
and further divisions with respect to grade and sentencing that developed over time. The basic
typography is as follows, with more specific discussions to follow:

Page 38
Type or Category
At Common Law Under the MPC
of Offense
Murder The essential characteristic of murder at The MPC simplifies murder as homicide
common law was malice aforethought, committed with one of three levels of
or simply malice. culpability: purpose, knowledge, or
recklessness.
Intent (Premeditation) Purpose or Knowledge
Depraved-Heart Killings Extreme Indifference

Note on degrees 1st degree: premeditation and The MPC does not differentiate murder
of murder deliberation. by degree.
2nd degree: everything else.

Felony murder Felony murder is a common-law tradition The MPC abandons the felony-murder
still in use in many U.S. jurisdictions (not, rule (but see comment on assumption of
notably, in the U.K. anymore). extreme indifference for murder during
commission of felonies, infra).

Manslaughter Involuntary (wanton) Recklessness


Voluntary (provocation) Extreme mental or emotional disturbance
Misdemeanor manslaughter Negligent homicide

A. MURDER
i. At Common Law
The classic common-law separation between murder and manslaughter, or roughly
between intentional and unintentional killings, was that of malice aforethought (see, e.g.,
18 U.S.C. § 1111(a): “Murder is the unlawful killing of a human being with malice
aforethought.”). This is not intent, or rather not the same thing as intent, since malice can be
found with respect to depraved-heart killings as well as to more brutal lying-in-wait
premeditated crimes. Nor is it motive, which gets to questions other than the relevant
considerations of mental state.
1. Grading of intentional killings
Pennsylvania led the way in 1794 in dividing murder into degrees:
[A]ll murder, which shall be perpetrated by means of poison, or by lying in
wait, or by any other kind of willful, deliberate and premeditated killing, or
which shall be committed in the perpetration, or attempt . . . [of] arson, rape,
robbery or burglary shall be deemed murder in the first degree; and all other
kinds of murder shall be deemed murder in the second degree.”
The thrust of this division was to confine the death penalty (then mandatory) to
particularly heinous homicides. This premeditation- (or felony-)based thinking spread
quickly to other jurisdictions.
The centrality of premeditation, volition, and deliberation can be seen in
Commonwealth v. Carroll (Pa. 1983) (p. 427), where the Pa. court dealt with a husband
who killed his wife after she became schizoid and threatened to hurt the children. The court
rejected the defendant’s attempt to mitigate the murder to the second degree, instead finding
that “terribly provoked by his allegedly nagging, belligerent and sadistic wife, defendant
remembered the gun, deliberately took it down, and deliberately fired two shots into the head

Page 39
of his sleeping wife.” The court rejected a bevy of psychiatric testimony offered by the
defendant, concerned that this would leave society basically unprotected from criminals.
The Carroll court stands for the notion that no serious or appreciable space of time
between the formation of the intent to kill and the act of kill was required. See also Young
v. State (Ala. 1982) (p. 432) (defendant convicted for first-degree murder on the ground that
“[p]remeditation and deliberation may be formed while the killer is ‘pressing the trigger that
fired the fatal shot.’”). But see State v. Guthrie (W. Va. 1995) (p. 432), which rejected jury
instructions that no “particular length of time” was required for intent prior to the actual
killing (those are known as the Schrader instructions). The Guthrie court instead held that
“there must be some period between the formation of the intent to kill and the actual killing,
which indicates . . . an opportunity for some reflection on the intention to kill after it is
formed,” with some “appreciable time elapse.” This Guthrie finding stands for the idea that
“premeditation and deliberation which are instantaneous . . . is a contradiction in terms.”
How to measure or prove premeditation? The California Supreme Court in People v.
Anderson (Cal. 1968) (p. 435):
(1) facts about behavior planning to killing (“planning”); (2) facts about prior
relationship with the victim (“motive”); and (3) evidence that the manner of the killing
evinces a preconceived design. Generally, first-degree murder convictions can be
sustained when there is evidence of all three types; it requires at least extremely strong
evidence of (1), or evidence of (2) in conjunction with either (1) or (3).
The difficulty of premeditation is that it can require harsher punishments for
potentially more worthy defendants. See, e.g., State v. Forrest (N.C. 1987) (p. 436), where
a defendant was convicted (upheld) of first-degree murder and sentenced to life imprisonment
for killing his terminally ill father with a single shot to the head. Are we comfortable saying
that Forrest is more worthy of severe punishment than Guthrie or Anderson?
2. Unintentional “depraved heart” killings
In Commonwealth v. Malone (Pa. 1946) (p. 482), the 17-year-old defendant was
engaged in a game of Russian roulette with his 13-year-old friend when the gun went off.
While there was no evidence of “intent”—quite the opposite—he was convicted of murder and
the conviction was affirmed on the basis of the fact that he had committed an act of such
gross recklessness as to exhibit “wickedness of disposition, hardness of heart, cruelty” in
“callous disregard of its likely harmful effects on others.” The Malone court focused on the
dictates of a wicked, depraved, and malignant heart. Likewise, in United States v. Fleming
(4th Cir. 1984) (p. 486), the defendant was convicted and the conviction was affirmed of
second-degree murder for drunk driving with such recklessness as to go beyond mere gross
negligence into the realm of malice aforethought. Fleming stands for the explanation that
malice aforethought can be proven by “depraved disregard of human life,” which is a jury
determination supported by the facts of this case. Note that for both Malone and Fleming,
the class felt uncomfortable with charging them with murder when the crime of involuntary
manslaughter was available.
For a succinct description of the difficulty, consider two Maryland cases: Ross v. State
(Md. 1987), defining the requisite malevolent state of mind for murder as (1) intent to kill,
(2) intent to cause grievous bodily harm, or (3) intent to do an act under circumstances
manifesting extreme indifference to the value of human life; and State v. Albrecht (Md.
1994), defining manslaughter as a “wanton and reckless disregard for human life.” The fact
that both Maryland cases use the phrase “indifference to human life” shows that this is an
unclear distinction best left to the finder of fact to muddle through.

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ii. Under the MPC
MPC § 210.2:
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes
murder when: (a) it is committed purposely or knowingly; or (b) it is committed
recklessly under circumstances manifesting extreme indifference to the value
of human life. . . .
The Model Penal Code therefore sets out a way that individuals may be convicted of
murder if they exhibit such extreme recklessness that it demonstrates indifference to the value
of human life. This is the MPC’s reflection of the classic common-law depraved-heart
indifference to human life. It is therefore one step beyond the normal MPC offense for homicide
in the case of recklessness (manslaughter) and is left for the trier of fact to decide.
Note, though, that courts seem to have had an equally hard time applying the distinction
under the MPC as at common law in distinguishing between unintentional depraved-heart
murder and manslaughter. The New York murder statute follows the MPC language but
substitutes “depraved indifference” for “extreme indifference,” and its Court of Appeals has
held that depraved indifference requires “utter depravity, uncommon brutality and inhuman
cruelty”: is this that different from the fuzzy lines of the common law?
Note further that, under the Model Penal Code, there is no first- and second-degree
murder distinction, which the ALI felt was unhelpful.
B. FELONY MURDER
A felon is held strictly liable for all killings committed by him and/or his accomplices in the
course of a felony. In the classic Lord Coke formulation:
If A meaning to steal a deer in the park of B, shooteth at the deer, and by the
glance of the arrow killeth a boy that is hidden in a bush, this is murder, for
that the at was unlawful, although A had no intent to hurt the boy, nor knew
not of him. . . .
Consider as an example California Penal Code § 189:
All murder which is . . . committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping,
train wrecking, or any act punishable under Section 206, 286, 288, 288a, or
289, or any murder which is perpetrated by means of discharging a firearm
from a motor vehicle, intentionally at another person outside of the vehicle
with the intent to inflict death, is murder of the first degree. . . .
The felony-murder rule is troubling in some of its outcomes, but many U.S. jurisdictions have
hesitated to get rid of it entirely, instead preferring to limit it whenever possible.
Note that, in all causes, there is a strict causation requirement: defendant’s conduct must
“cause” a person’s death, both in the but-for or factual sense and in the proximate cause /
foreseeability sense. See, e.g., King v. Commonwealth (Va. App. 1988) (p. 494), where
defendant and copilot crashed a plane during transporting marijuana. The felony murder
conviction was reversed on the ground that the drug-distribution crime was not the proximate
cause of the death. See also Commonwealth v. Williams (Pa. 1938) (p. 499) (a causal limitation
on the misdemeanor-manslaughter doctrine where a defendant’s expired license was held to have
no causal relationship to the accident).
i. At Common Law
The classic case is Regina v. Serné (U.K. 1887) (Stephen, J.) (p. 490). Defendants
willfully set a house and shop on fire, and a young boy died during the process. Lord Stephen

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does not believe that the felony-murder rule can apply in every instance of death—he gives the
example of a man pushes another man in an intent to steal his watch, and the other man dies,
and also the Lord Coke example quoted above; he does not think that’s the state of the law.
Rather, if a killing is done in the commission of the felony, and the act causing the killing is
“known to be dangerous to life and likely in itself to cause death,” it should be murder. Cf.
People v. Stamp (Cal. App. 1969) (p. 493), embodying perhaps the fuller extent of the classic
rule: defendant burglarized the victim’s shop and robbed him at gunpoint. Shortly thereafter,
he died of a heart attack (obese older many with history of heart disease). The felony-murder
doctrine, said Stamp, was not limited to deaths that are foreseeable; strict liability for all
killings committed by him or his accomplices in the course of the felony.
ii. Limitations to the Felony-Murder Rule
Everywhere is the felony-murder rule hemmed in by different juridical tools:
1. Inherently Dangerous Felonies
See Justice Stephen’s explanation and limitations of the felony-murder rule in Serné,
supra. See also People v. Phillips (Cal. 1966) (p. 502) (defendant charged of felony-
murdering a young child because he convinced her parents not to operate on a cancerous eye;
the conviction was overturned because the felony committed (grand theft, theft by deception)
was not itself “inherently dangerous to life.”). Of course, the Phillips case raises the
immediate question: does a felony have to be inherently dangerous to life per se, categorically,
in every instance / in the abstract, or might the particular commission of a felony be
inherently dangerous to life? Cf. Hines v. State (Ga. 2003) (p. 505), where the defendant
was hunting with a friend and accidentally shot him (possessing firearm as a convicted felon).
While the crime was not necessarily inherently dangerous in the abstract, the Hines could
felt it was a fact-specific question better left to the jury as to whether the circumstances of
the felony themselves were inherently dangerous. (The majority in Hines felt that a
“foreseeable risk of death” standard was sufficient, while the dissent said a “high probability
that death will result” standard was more appropriate.) Most U.S. jurisdictions follow the
Hines formulation.
2. Merger Doctrine and Its Hiccups
The felony-murder rule cannot be used if the elements of the felony are “within” the
elements of the murder, i.e., if the felony crimes “merge” with the murder. The paradigmatic
example is that all of the elements of assault and battery with a deadly weapon are included
in murder, so if a killing results during an assault and battery, this “merges” and the felony-
murder rule cannot be used.
The casebook uses California’s rather tortured history with the merger doctrine as an
example. The first line of precedents was led by People v. Ireland (Cal. 1969) (p. 509),
where the defendant’s felony-murder conviction was overturned on the basis that his assault
crimes “merged” with the murder because they were included in fact within the offense
charge. See also People v. Wilson (Cal. 1969) (p. 509) (burglary with intent to assault also
merges with the murder).
Then, in People v. Burton (Cal. 1971) (p. 508), the court considered a felony-murder
charge during an armed robbery. The court instead sought to restrict the merger doctrine to
“deaths resulting from assaults . . . where the purpose of the conduct was the very assault
which resulted in death, and deaths resulting from conduct for an independent felonious
purpose.” Since armed robbery had an independent felonious purpose, it did not merge and
the felony-murder instruction was appropriate. See also People v. Mattison (Cal. 1971) (p.
513) (supplying an illegal drug to a fellow prison inmate who died from ingestion does not
merge, as there is an independently felonious purpose).

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Then, in People v. Robertson (Cal. 2004) (p. 513), the court considered a case where
the defendant shot and killed a person he believed was trying to steal hubcaps but claimed
he did not intend to kill, but merely wanted to scare, the victim. The court held that his
defense itself (trying to scare) was the “independent felonious purpose,” finding that it did
not merge; but a strong dissent rejected this reasoning out of concern that he was punished
more harshly for not intending to hit him than if he had.
Finally, in People v. Chun (Cal. 2009) (p. 514), the California court reconsidered the
merger doctrine in a case where the underlying felony was shooting into an occupied vehicle.
The Chun court reconsidered and overturned Robertson, concluding that “[w]hen the
underlying felony is assaultive in nature . . . [it] merges with the homicide and cannot be
the basis of a felony-murder instruction,” with assaultive being defined as “a threat of
immediate violent injury.” Since shooting at an occupied vehicle is assaultive in nature, it
cannot serve as the underlying felony for the felony-murder rule (it merges, no felony-murder
rule here).
3. In Furtherance of the Felony
A final restriction of the felony-murder rule is that it must apply only when the killing
is done in furtherance of the felony. There are three main situations:
1. If after the commission of the felony altogether (e.g., after getaway was complete), you
cannot use the felony-murder rule (fact-specific inquiry as to whether the felony was
ongoing).
2. If a lethal act is unrelated to the felony: another fact-specific inquiry as to whether the
given murder or action was in furtherance of, related to, sufficiently proximate to, or
any other such formulation with respect to the felony.
3. Finally, with respect to lethal acts committed by persons resisting the felony, consider
State v. Canola (N.J. 1977) (p. 517), where the court was asked if a co-conspirator
could be held criminally liable (through felony murder) for the death of his co-
conspirator at the hands of a store owner resisting the robbery. The Canola court relies
on the agency approach, holding that the felony-murder rule was inappropriate
because the death did not come at the hand of the felon. (Distinguished are the “shield”
cases when the felon is more directly responsible for the death of someone else.) The
court seemed to rely on a general feeling that it was better, whenever possible, to
restrict the felony-murder rule. A substantial number of U.S. jurisdictions adhere to
the agency theory with its central inquiry of whether the killing was done by a co-
felon or someone in concert (otherwise, no felony-murder rule).
Other jurisdictions rely on the proximate cause approach, whereby a death
resulting from a felony (even if by someone resisting) may be an appropriate use of the
felony-murder rule if death is caused in the course of that felony (and, presumably, if it
was sufficiently proximately related to the felony itself). See, e.g., People v.
Hernandez (N.Y. 1993) (felony-murder conviction of felon when a police officer was
fatally shot during a gun battle by another officer). Interestingly, post-Canola, New
Jersey enacted a statute modeled closely against the proximate causation approach.
iii. Under the MPC
The Model Penal Code does away with the felony-murder rule and its difficulties, but in
cases of extreme recklessness leading to “depraved-heart” murder, the MPC allows actions
committed during the course of felonies to serve as a rebuttable presumption of such extreme
recklessness:
MPC § 210.2(1)(b):

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Such recklessness and indifference are presumed if the actor is engaged or is
an accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, rape or deviate sexual
intercourse by force or threat of force, arson, burglary, kidnapping or felonious
escape.
This is, essentially, a way for killings during the commission of dangerous felonies to serve
as a rebuttable presumption that a defendant has committed a depraved-heart or implied-
malice murder.
iv. Note on the Misdemeanor-Manslaughter Rule
Just as a killing committed in the act of a felony can lead to a conviction of “felony murder,”
a killing committed in the act of a misdemeanor can lead to a conviction of “misdemeanor
manslaughter,” often without proof of the normal recklessness or negligence that would be
necessary for such a conviction.
These unlawful-act convictions of manslaughter are often limited by questions of (1)
proximate cause (see Commonwealth v. Williams (Pa. 1938) (p. 499) (a causal limitation on
the misdemeanor-manslaughter doctrine where a defendant’s expired license was held to have
no causal relationship to the accident)); (2) eliminating regulatory malum prohibitum
misdemeanors; and (3) limiting the doctrine to dangerous activity or misdemeanors rising to
criminal negligence.
C. MANSLAUGHTER
Manslaughter itself has been divided into two main categories, with different considerations
relevant for each:
i. Involuntary Manslaughter (Wanton and Reckless)
The first category of manslaughter involves unintentional killings, i.e., killings the result
of reckless or wanton behavior but which falls short of the depraved-heart categories discussed
above. These are generally termed “involuntary manslaughter.”
1. At Common Law
The classic case is Commonwealth v. Welansky (Mass. 1944) (p. 464), where the
defendant was convicted of involuntary manslaughter for his reckless business decisions at
the Boston nightclub. At common law in Massachusetts, there was no such thing as “criminal
negligence”; the offense of involuntary manslaughter thus turned on whether the conduct
was wanton and reckless. Interestingly, it is not necessarily the subjective understanding of
the defendant that matters—even if a particular defendant is so stupid or so heedless not to
realize the grave danger, he cannot escape imputation of wanton or reckless conduct if an
ordinary man would have realized the danger. Wanton and reckless is distinguished by the
high degree of likelihood that substantial harm will result. Death resulted from his wanton /
reckless disregard for the safety of patrons, so the court affirmed his conviction. See also Rex
v. Bateman (U.K. 1925) (p. 467) (“[T]o establish criminal liability the facts must be such
that . . . negligence of the accused went beyond a mere matter of compensation . . . and showed
such disregard for the life and safety of others as to amount to a crime against the State and
conduct deserving punishment.”); State v. Barnett (S.C. 1951) (p. 467) (“[I]t is generally
now held that the negligence of the accused must be ‘culpable,’ ‘gross’ . . . such a departure
from what would be the conduct of an ordinarily prudent or careful man . . . as to be
incompatible with a proper regard for human life . . .”).
2. Under the MPC
MPC § 210.3:

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(1) Criminal homicide constitutes manslaughter when: (a) it is committed
recklessly . . . .
Note first the MPC division between the two lower ranges of criminal homicide: first,
there is manslaughter, which is a reckless homicide; second is is negligent homicide (infra),
a lesser crime when the defendant was not aware of the unwarranted risk he was creating.
Consider People v. Hall (Colo. 2000) (p. 469), where the court found that the jury
could have reasonably inferred that Hall created, and disregarded, a substantial and
justifiable risk when he flew off the slopes while skiing. The court rejected the district court’s
“erroneous construction of recklessness” that it must be at least more likely than not that
death would result,” instead focusing on whether it constituted a gross deviation from
ordinary care; since he was a trained skier, he must have known that was he was doing was
dangerous.
3. Washington State: Simple Negligence Enough
In State v. Williams (Wash. 1971), the court considered a charge of criminal
manslaughter for two ignorant Native American parents’ negligent failure to provide their
child with necessary medical attention. Under Washington’s statutes, manslaughter can be
committed when the death of the victim is the proximate cause of only simple or ordinary
negligence, not even “gross” negligence (or criminal recklessness). Finding sufficient evidence
that the court could find that defendants deviated from the standard of ordinary caution, the
conviction was affirmed.
ii. Voluntary Manslaughter (Provocation)
In other cases, a defendant has knowingly and intentionally committed a homicide, but
his offense is mitigated from murder to “voluntary manslaughter” because of the doctrine of
provocation. This is an excuse rather than a justification, seeking to reduce the severity of his
punishment and sentence in cases where we feel that a normal person would have been
provoked into similar behavior.
Note that most jurisdictions that any suitable period of “cooling time” will make the
defense of provocation unavailable as a matter of law. (Not under the MPC?)
Both at common law and under the MPC, courts must inquire both as to the subjective
state of the defendant (was he truly provoked and acting under emotional duress, loss of his
senses, et cetera?) and the reasonable nature of that provocation (would a man of reasonable
firmness have been similarly provoked?).
1. At Common Law
There are several tests for the adequacy of provocation in considering whether to
mitigate an intentional killing from murder to manslaughter at common law. The test in
Girouard v. State (Md. 1991) (p. 437), in which the court considered a husband’s murder
of his wife after being verbally provoked by insulting, derisive language, is whether the
provocation was “calculated to inflame the passion of a reasonable man and tend to cause
him to act for the moment from passion rather than reason,” i.e., “sufficiently infuriated so
as to strike out in hot-blooded blind passion.” The court found that the verbal provocation in
Girouard was insufficiently accompanied by conduct indicating “a present intention and
ability to cause the defendant bodily harm,” and thus the conviction of second-degree murder
was affirmed. Another test comes from Maher v. People (Mich. 1862) (p. 439), in which
the court considered the defendant’s defense that he had been provoked by seeing his wife
and the victim enter the woods together, and focuses on whether a homicide is “produced by
adequate or reasonable provocation . . . and is the result of the temporary excitement, by
which the control of reason was disturbed, rather than of any wickedness of heart,” thereby

Page 45
focusing more on “reasonableness clouded by passion” that the full murderous rage of
Girouard.
Note another essential difference between the two cases discussed above: while the
Girouard court discusses certain per se categorical situations where provocation mitigation
defenses may be available (e.g., extreme assault, mutual combat, illegal arrest, injury or
abuse of a close relative, sudden discovery of adultery), the Maher court considers it a fact-
intensive question for the jury on a case-by-case basis.
2. Under the MPC
MPC § 210.3:
(1) Criminal homicide constitutes manslaughter when: . . . (b) a homicide
which would otherwise be murder is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or
excuse. The reasonableness of such explanation or excuse shall be determined
from the viewpoint of a person in the actor's situation under the circumstances
as he believes them to be.
The somewhat difficult-to-apply Model Penal Code test requires both a subjective
inquiry—was the defendant in fact motivated to act by extreme emotional or mental
disturbance?—and an objective-subjective one—give the circumstances as he believed them
to be and his context, would a reasonable person have been similarly provoked or upset? In
People v. Casassa (N.Y. 1980) (p. 453), for instance, the defendant brutally murdered
Victoria Lo Consolo after becoming extremely emotionally disturbed. Rejecting an entirely
subjective approach, the Casassa court held that the defendant’s emotional disturbance in
this case was “so peculiar to him that it was unworthy of mitigation,” the result of his
malevolence rather than “an understandable human response deserving of mercy.”
Note, though, that the MPC seems to forgo the “no cooling time” requirement at
common law, or at least explicitly.
3. Policy Arguments on the Provocation Defense
Some believe that the provocation defense should be abolished, arguing that it cheapens
life and fails to hold people to a reasonable standard whereby no murder is justified. Others
consider the disparate social impact of this defense out of justifiable concern that it excuses
the actions of men who kill women. Others maintain that the provocation defense is
appropriately tailored to the longstanding rule on adjusting punishment to match culpability.
There have been complicated applications of the provocation defense (e.g., discovery of
adultery, homosexual advances) which certainly raise concerns.
D. NEGLIGENT HOMICIDE / MISDEMEANOR MANSLAUGHTER
i. At Common Law
Quite simply, there was no common-law offense known as negligent homicide; this was an
innovation of the Model Penal Code.
ii. Under the MPC
The Model Penal Code set out a degree reduction category of homicide committed
negligently rather than recklessly, i.e., when the guilty party was not aware of such risks of
death of which a reasonable person would have been aware:
MPC § 210.4:
(1) Criminal homicide constitutes negligent homicide when it is committed
negligently. (2) Negligent homicide is a felony of the third degree.

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This is distinguished from the MPC offense of manslaughter by the fact of a defendant’s
mere negligence (lack of subjective awareness of the risk he was creating) as opposed to
recklessness (conscious disregard of risk required for manslaughter).

V. RAPE
Whereas homicide was traditionally an aspect of criminal law where the law sought to divide and
split into grades and types, the history of rape in the criminal law has rather been one of inclusion,
whereby increasing definitions of force, of coercion, and of types of victims have broadened the scope
of these sexual offenses. We have come along way from the original Blackstone definition of rape as
“carnal knowledge of a woman [other than your wife] forcibly and against her will,” but there are still
many problems with how to define the harm, how to define force, and what mens rea is required
(particularly with respect to consent).
A. ACTUS REUS FOR SEXUAL OFFENSES
Generally, the actus reus for sexual offenses requires (1) some nature of sex or sexual contact,
though this has changed over the years, and (2) that such sexual contact have been “forcible” or
unwanted, though again this definition produces many difficulties discussed in greater detail
below.
i. At Common Law
The element of force was and remains an essential prerequisite for criminal rape
conviction in most U.S. jurisdictions. The force requirement mostly relates to physical force
and only extends into psychological force (generally) when there are substantial power
asymmetries between the parties. (But see modern discussions on the problems with consent
and the many power imbalances, e.g. on college campuses.) Moreover, the force requirement
has led many jurisdictions to conclude that there must be some outward physical manifestation
of resistance, unless there was a reasonably grounded fear that resistance would be futile or
would further endanger the victim’s life (but see the effort to make more affirmative
manifestations of consent the norm).
If there are serious power dynamics operating to create the implied threat, then
defendants may be held guilty of rape even in the absence of outward demonstrations of force
or resistance. State v. Burke (R.I. 1987) (p. 349), where the defendant was an armed police
officer who was convicted of first-degree sexual assault; the court held that a case involving a
“person in position of authority who is armed, speaks in terms of peremptory command,” and
a victim who did not consent could reasonably have concluded that resistance would be useless.
Cf. State v. DiPetrillo (R.I. 2007) (p. 348), which refused to extend the Burke analysis of
psychological pressure on the victim to the facts of its case, where the 30-year-old defendant
boss of the 19-year-old victim employee had his conviction overturned and the case remanded
to see if he was guilty only on the basis of physical force. The dissent goes even further, finding
no evidence of the requisite element of force.
In a close case, State v. Rusk (Md. 1981) (p. 343), the defendant was found guilty of
second-degree rape in a case where there were almost no physical manifestations of force (hand
on throat after they were already undressed). Noting that force is an “essential element of the
crime,” requiring either that the defendant resisted and her resistance was overcome or that
resistance was impossible due to concerns about safety, the court nevertheless found that the
victim may have feared death or serious bodily harm; the victim’s fear must be reasonably
grounded, and the jury in this case evidently must have believed the victim and disbelieved the
defendant. “Just where persuasion ends and force begins in cases like the present is essentially
a factual issue.” The dissent, however, disagreed strongly and felt that only if the defendant’s

Page 47
conduct was held to be reasonably calculated to give rise to a fear on her part would her
subjective fear begin to play into the picture of why there was no resistance.
Even in states where physical resistance is no longer a formal requirement, it is highly
probative of the lack-of-consent portion of the crime of rape (forcibly and against her will). All
courts recognize some line where resistance is unnecessary (e.g., holding gun to a victim’s
head), but most require that these fears must be “reasonably” grounded (see Rusk, supra).
ii. Note on the Marital Exception
Traditionally, husbands could not be guilty of raping their wives (see the Matthew Hale
justification based on wife entering into a contract with her husband, making a promise she
cannot retract). Thankfully, this has been overturned almost everywhere (see People v.
Liberta (N.Y. 1984) (p. 405), holding that there is no rational basis for distinguishing between
marital and nonmarital rape).
As seen below, the MPC chose to preserve the marital exception, not wanting to intrude
into the private sphere.
iii. Under the MPC
MPC § 213.1:
(1) Rape. A male who has sexual intercourse with a female not his wife
is guilty of rape if: (a) he compels her to submit by force or by threat of
imminent death, serious bodily injury, extreme pain or kidnapping,
to be inflicted on anyone; or (b) he has substantially impaired her power to
appraise or control her conduct by administering or employing without her
knowledge drugs, intoxicants or other means for the purpose of preventing
resistance; or (c) the female is unconscious; or (d) the female is less than 10
years old. . . .
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female
not his wife commits a felony of the third degree if: (a) he compels her to submit
by any threat that would prevent resistance by a woman of ordinary
resolution; or (b) he knows that she suffers from a mental disease or defect
which renders her incapable of appraising the nature of her conduct; or (c) he
knows that she is unaware that a sexual act is being committed upon her or
that she submits because she mistakenly supposes that he is her husband.
Note that the MPC’s definition of rape maintains the force requirement, indeed a high
version thereof (“by force or by threat of imminent death, serious bodily injury, extreme pain
or kidnapping”), but it adds a third-degree “gross sexual imposition” crime in the absence of
such physical force.
iv. Under International Law
As stated in M.C. v. Bulgaria (ECHR 2003) (p. 369), the international criminal courts
sometimes view the actus reus of rape as the act of penetration itself. This means that there is
no requirement of force or resistance, or at least in the sense of a physical manifestation of that
act; what matters is the lack of consent (and, as discussed below, the defendant’s mental state
vis-à-vis that lack of consent).
B. MENS REA FOR SEXUAL OFFENSES
The difficulty with analyzing the requisite mens rea for sexual offenses is that it is closely
tied to the actus reus, particularly the force requirement, which is often taken as a proxy for the
mens rea. Furthermore, as the requirements for force and resistance are dialed down in our more

Page 48
modern understandings of consent and sexual violence, there may be a contrary desire to dial up
the mens rea required in order to prevent conviction.
The key question with respect to mens rea is often: what mental state must the prosecution
show on the part of the defendant with respect to the victim’s lack of consent to the sexual activity?
i. At Common Law
Courts have refused to require defendants to have actual knowledge of the victim’s lack of
consent. See Commonwealth v. Sherry (Mass. 1982) (p. 389), where the defendants did not
request a jury instruction based on reasonable good faith mistake of fact; the court, saying that
they were aware of no American court recognizing mistake of fact without consideration of
reasonableness as a defense, held that the evidence was sufficient to permit the jury to find
that the defendants had sex with the victim by force and against her will. In Sherry’s
companion case, Commonwealth v. Lefkowitz (Mass. 1985) (p. 391), the Mass. court
addressed the issue of a reasonable defense, holding that a reasonable defense was
inappropriate when there were positive manifestations of lack of consent: “When a woman says
‘no’ to someone[,] any implication other than a manifestation of non-consent that might arise
in that person’s psyche is legally irrelevant.” In the event of a positive manifestation of non-
consent, then, Massachusetts holds a defendant strictly liable.
Judge Beck’s decision in Commonealth v. Fischer (Pa. 1998) (p. 391) dealt with the
defendant’s argument that the Pa. definition of forcible compulsion, “by use of physical,
intellectual, moral, emotional or psychological force, either express or implied,” meant that the
defendant should have recourse to a reasonable mistake of fact defense as to the victim’s
alleged lack of consent. Constrained by the Williams precedent and finding that there actually
was physical force alleged here (not just one of the more modern instances of college date rape),
the reasonable mistake of fact defense was rejected and the judgment against defendant was
affirmed. (Like Pennsylvania, Massachusetts holds that, even if reasonable, a belief that the
victim had consented would not be a defense even if reasonable (strict liability).)
On the other end of the spectrum, Alaska requires recklessness. See Reynolds v. State
(Alaska App. 1983) (p. 397): counterbalancing Alaska’s dispensing with requirement that the
victim resist at all was the requirement in shifting the attention to the defendant’s
understanding of the totality of the circumstances; the state must prove that the defendant
acted recklessly regarding his punitive victim’s lack of consent.
In the middle of the spectrum are the fuzzy inquiries into what could constitute a
“reasonable” mistake as to a victim’s consent, which involves all of the evolving and difficult
societal norms of consent, of the gender gap, and similar issues. Most U.S. jurisdictions fall into
this middle-ground “negligence” standard with respect to a defendant’s mens rea on the victim’s
lack of consent.
ii. Under the MPC
As there is no level of culpability mentioned in the MPC section on rape above (§ 213.1),
the mens rea by default is recklessness (which matches the English law and the rule in Alaska).
Note that there is a proposed revision to the Model Penal Code (not yet adopted by the
ALI) which would create three levels of rape: forcible rape (force, violence, threat thereof); other
compulsion (non-physical); and misdemeanor (sex without affirmative consent).
C. PROSECUTORIAL DISCRETION
See discussion of prosecutorial discretion in Section I(L) supra.

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D. STATUTORY RAPE
Statutory rape is a term of art referring to (1) the act of sex, or some sexual activity (or “lewd
or lascivious acts,” or some other such formulation) with (2) someone under an age limit.
i. At Common Law
The key question of statutory rape is how to handle the mens rea required to convict a
defendant of sex with a minor if the defendant was mistaken as to the minor’s age.
Many jurisdictions feel that, consistent with the principles of the criminal law in general,
a defendant must not be found guilty if he genuinely held a reasonable belief that the minor
was over the age of 18 (or rather of legal consensual age). B (A Minor) v. Director of Public
Prosecutions (U.K. 2000) (p. 276) (B honestly believed that the girl was over 14 years old; as
rape is a serious offense, it requires giving weight to the presumption requiring proof of mens
rea; rejecting policy-based arguments that strict liability will somehow lead to deterrence, the
necessary mental element is the absence of a genuine belief by the accused that the victim was
14 years of age or older. The court thereby overruled R. v. Prince discussed supra.).
Other jurisdictions make no such allowance for a reasonable mistake of fact defense,
holding instead that is is a strict liability offense somewhat in line with the public welfare
offenses discussed elsewhere. See Garnett v. State (Md. 1993) (p. 278) (defendant, a 20-year-
old mentally retarded man, was charged with second-degree rape of a 13-year old even though
she told him she was 16 and even though he did not understand her age. Holding that
Maryland’s rape statute makes no allowance for a mistake-of-age defense (particularly when
the defendant was under 14, see Olsen infra), the court affirmed and noted that he would have
to hope for leniency in sentencing). See also People v. Olsen (Cal. 1984) (p. 272), where the
victim was 13 years and 10 months. California has two kinds of statutory rape, one for anyone
under 18 and another for lewd or lascivious acts of someone under 14. The Olsen court, relying
on policy arguments and the recognition of the court in People v. Hernandez (Cal. 1964) that a
mistake-of-age defense was inapplicable when the victim is of “tender years,” held that strict
liability required conviction.
ii. Under the MPC
MPC § 213.1:
(1) Rape. A male who has sexual intercourse with a female not his wife is
guilty of rape if: . . . (d) the female is less than 10 years old. . . .
The MPC thus allows for an honestly held mistake, whether reasonable or not
(requirement of recklessness), but it provides for strict liability when the victim is below the
age of ten.

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