Overview

 McCleskey v. Kemp
o Fails 14th Amendment Equal Protection challenge because he could not prove
there was discrimination in his sentencing; fails 8th Amendment challenge
because legislature did not have discriminatory purpose
 Regina v. Dudley and Stephens
o Necessity not a defense to killing and eating a sick boy on a stranded boat

Theories of Punishment
 Utilitarian/Consequentialist Views
o Deterrence
 Specific deterrence (deterring the offender) vs. general deterrence
(deterring the public at large). Either approach can be over or under
proportion to perceived blameworthiness
 Possible approaches are increasing risk of conviction and increasing
severity of punishment
o Rehabilitation
 Issue of paternalism – how specific/broad should rehab be?
 Goal of making society safe from the reformed offender, or allowing the
reformed offender to flourish – the latter may be beneficial but against
their own wishes
 Drawbacks: allocates scarce resources to those unwanting; paternalistic
intervention is misguided; recasting punishment as treatment can be
dangerous
o Incapacitation
 Restraining offenders from continuing to commit the crimes
 The basic design and purpose of prisons. Cost effective except for low-
level and first-time offenders, esp. drugs
 Retributivist Views
o Retribution
 Defendant is morally blameworthy
 Positive retributivism – there is an obligation for us to punish fully for
blameworthy conduct
 Negative retributivism – a maximum punishment for a given crime is
allowed but not required, and the maximum constrains the degree of
punishment

Defining and Acting on Criminal Conduct

 Nulla poene sine lege – no punishment without law
 Objectives of fair warning, control of discretion, no ex post facto (retroactive)
punishment, and prohibition of vague statutes
  Lenity is where the act clearly falls within the statute by one interpretation, but outside
another, and so the more charitable interpretation must be used. Vagueness is where it is
unclear whether the act falls within the statute.

Rule of Lenity

 Definition: if reasonable people could interpret clear but different meanings from a
statute, the meaning more beneficial to the defendant must be employed.
 Issue of statutory interpretation
 McBoyle v. United States
o It is unlawful to steal a motor vehicle. McBoyle steals an airplane. “Vehicle” can
be interpreted to not include a plane: therefore, that more lenient interpretation
must be applied. Conviction reversed
 Yates v. United States
o It is unlawful to destroy or cover up tangible evidence. Yates discards undersized
fish that are illegal to catch. Based on noscitur a sociis, “tangible object” would
include things like documents and files, but not fish. Conviction reversed

Vagueness and Discretion

 Definition: the meaning of the statute is unclear; it does not give citizens fair warning on
the prohibited conduct or how to abide by the statute, and/or give police adequate
guidance to exercise discretion
 Issue of constitutional limits and due process under the 14th amendment
 “Broken windows” theory – visible signs of crime (loitering, vandalism, public drinking)
promote further crime. Association with police heavy-handedness i.e. stop and frisk
 City of Chicago v. Morales
o A crime if 1) a police officer believes someone is a “criminal street gang
member”, 2) they are “loitering” or “remaining in any one place with no apparent
purpose”, 3) the officer orders them to remove themselves from the area
(disperse), 4) someone disobeys the order. Fails to provide notice so that ordinary
people can understand how to conduct themselves, and authorizes/encourages
arbitrary enforcement. Dismissal of charges affirmed
o Earlier “vagrancy laws case”: Papachristou v. City of Jacksonville which
overturns ordinance of “status-type” crimes (rogues and vagabonds, drunkards,
etc.). Neither majority nor dissent in Morales cited this

Proportionality

 Term of Year challenge – length, conduct, criminal history

 Categorical challenge – current law/practice, 8A limitations
 Comparative analysis of punishments for similar crimes, and crimes resulting in similar
punishments
 8A language of notes: “excessive” bails/fines, but “cruel and unusual” punishment
 Ewing v. California
 o Individual challenge of proportionality, on three strikes rule. Sentence upheld, as
it aligns with legislative purpose entitled to deference
 Graham v. Florida
o Juvenile death penalty (vs. life without parole)
o For Eighth Amendment categorical challenges, Court will 1) consult “objective
indicia of society’s standards” and 2) exercise “independent judgment” whether
punishment violates Constitution
 State v. Bryant
o Life sentence for repeat offender stealing hedge clippers is grossly disproportional
 Miller v. Alabama
o Ban on juvenile LWOP extended to murder
 Montgomery vs. Louisiana
o LA has a right to humane treatment; a challenge on this basis is easier than a
categorical 8A challenge

Jury, Charging, and Pleas

 Plea Bargaining
 Duncan v. Louisiana
o Pre-incorporation of Bill of Rights, therefore LA Constitution granted jury trials
only in capital punishment and hard labor cases. However, SCOTUS overturns
conviction because a crime punishable by two years is serious enough that
appellant entitled to jury trial
 Inmates of Attica v. Rockefeller
o Civil case asking for investigation/indictment. Private citizens cannot prosecute
and must rely on government discretion. State officials have no duty to bring
prosecutions for the inmates killed in an uprising
 Bordenkircher v. Hayes
o Plea bargaining allowable due to mutuality of advantage to defendants and
prosecutors. Conviction upheld despite vindictive (and threatening) nature of this
process

Building Blocks of Crime

 Culpability is a voluntary act (actus reus) by a guilty mind (mens rea)
 Model Penal Code § 1.13(9) – elements of offense are 1) conduct, 2) attendant
circumstances, and 3) result

Actus Reus

 Actus reus prohibits status-type crimes i.e. homelessness and alcoholism

 Martin v. State
o Case involving public drunkenness. Conviction overturned because “a voluntary
appearance is presupposed”
 o MPC § 2.01(1): “A person is not guilty of an offense unless his liability is based
on conduct which includes a voluntary act or the omission to perform an act of
which he is physically capable.”
 People v. Newton
o Defendant committed homicide of a police officer after being shot. Trial jury not
properly instructed on unconsciousness (where not self-induced). Conviction
overturned
 Jones v. United States
o Defendant neglected to provide for newborn who then died, but jury not informed
that a legal duty (statutory, status relationship, contractual duty, or voluntary
assumption of care) was required. Conviction overturned
 Pope v. State
o Convictions for abuse and “misprision” of felony overturned. Moral obligation
does not translate to legal duty (for child abuse, a parent, adoptive parent, in loco
parentis, or responsible for supervision)
o Misprision (non-disclosure) has British common law origins, adopted by
Maryland, but abolished in this case
o Pros and cons of omissions as crimes

Mens Rea

 General vs. Specific Intent – broad moral fault vs. a formal and technical requirement of
awareness or intention
 Four levels:
o Purposely
o Knowingly
o Recklessly – aware of risk
o Negligently – not aware of risk but should have been
 Model Penal Code “attendant circumstances”; and § 2.02: “a person much acted
purposely, knowingly, recklessly or negligently… with respect to each material element
of the offense”
 § 2.02(3) – if statute is silent on mens rea, must be at least reckless
 § 2.02(4) – a level of culpability for an offense applies to all material elements (the
“travel rule”)
 § 2.02(9) vs. 2.04(1) – knowledge, recklessness, or negligence about the existence of the
law/crime is not a defense unless specifically enumerated by the Code/law
 Strict Liability – may be imposed for public welfare crimes or duty of care cases.
Imposing a social order. Ex. Statutory rape, illegal sale of alcohol, adulterated food or
drugs, etc. However, mere omission of mens rea does not eliminate the element
 Mistake of Law – a rare defense. Intentionally/purposely/willfully and knowingly may
require a knowledge of the law itself
 Mistake of Fact – a more successful defense, weighs whether there has been a moral
wrong vs. a lesser crime committed. Moral wrong = the act is such that offender assumed
risk of mistake, lesser crime = if the facts were as believed, he would have committed a
lesser crime, but runs the risk of the greater crime. (Narrower approach). MPC approach
(comment to § 2.04): mistake is a defense if it negates existence of the essential state of
mind
 Regina v. Cunningham
o Conviction overturned of endangering life by noxious thing; specific mens rea
requirement; “malice” not a vague sense of wickedness but an actual or reckless
intent for the particular harm
 Regina v. Faulkner
o Defendant goes to steal rum from ship, lights match to see, accidentally burns
down ship. Because he did not have intent to burn down ship nor knew it would
be the probable result, conviction overturned
 State v. Hazlewood
o Ordinary negligence standard is sufficient for such offenses society expects to
deter. Dissenting opinion – that mere negligence should be insufficient for
criminal punishment – is the more common viewpoint
 Regina v. Prince
o Mistake of fact about girl’s age did not matter for otherwise illegal/immoral act of
statutory rape. A more general mens rea intent
 Morissette v. United States
o Defendant knowingly took and converted government property, but defense was
that he believe them to be abandoned, as they had been exposed for years.
Conviction reversed
 Staples v. United States
o Defendant did not know that his firearm was automatic. Weapons possession not
a “public welfare” offense, so the mens rea should not be eliminated. Conviction
overturned
 Regina v. City of Sault Ste. Marie
 o Three formulations of offenses: 1) a mens rea must be proved; 2) no mens rea
required, defendant must avoid liability by showing reasonable care; 3) no mens
rea, absolute and unrebuttable liability
 Shelton v. Secretary of Corrections
o Knowledge of identity of cocaine was an essential element of the possession
crime, which could not be shifted to the defendant but proved by the prosecution
 Cheek v. United States
o A triable fact whether Cheek honestly believes he was exempt from taxation, as a
matter of willful violation: instruction that “an honest but unreasonable belief is
not a defense” was erroneous

Homicide
 Types of homicide include: murder, manslaughter, suicide, feticide, other
o Murder includes both intentional and non-intentional (“depraved heart”) murders,
as well as “murders” under the felony-murder rule
o Manslaughter includes non-intentional and intentional (with adequate
provocation, heat of moment, therefore downgraded from murder
  MPC approach (§ 210.1 – 210.4): murder is purposely or knowingly, or reckless with
extreme indifference to human life; manslaughter is reckless or EED murder; also,
negligent homicide

Murder

 “Unlawful killing with malice aforethought”. “Malice aforethought” a term of art

 Grading and Premeditation
o Typically, 1st degree = premeditated or deliberate; 2nd degree = all other
intentional
 State v. Guthrie
o Originally convicted of 1st degree murder. Defendant was mentally ill and
unexpectedly set off by victim. Trial jury instructions that deliberation only
require “an instant” were consistent with WV law, but jury was not properly
instructed on differences between 1st and 2nd degree murder wrt premeditation.
Premeditation is then not a particular period of time, but some space between
formation and act. Reversed and remanded. (Convicted on remand)

Voluntary Manslaughter and Provocation

 Common law test: 1) Was there a provocation? 2) Does it fit within a common law
category? 3) If not, was it objectively an adequate provocation? 4) Was there sufficient
time for the defendant to cool off?
 Girouard v. State
o Girouard kills his wife, who verbally and physically abused him. The provocation
is adequate if a reasonable man for a moment would act out of passion rather than
reason. Here, did not exist apparently, because woman was too small. Affirmed
o Words alone not an adequate provocation
 Maher v. People
o Maher kills Hunt, who slept with his wife. Malice does not exist if ordinary men,
of fair and average disposition, would have reason clouded by passion and liable
to act rashly or without deliberation. Conviction overturned
 People v. Casassa
o Extreme emotional disturbance defense requires that defendant acted under EED,
and that there was reasonable excuse for EED. Heartbroken man who killed
woman did not meet (2) due to peculiarity of EED. Convicted of second degree
murder. New York employed MPC approach

Unintentional Killings

 Graded in three categories:

o Murder – for either “depraved heart”/”malice” or the felony-murder rule
o Involuntary manslaughter
o Negligent homicide – no criminal liability (civil liability still possible)
 MPC § 210.2 “extreme difference” mirrors “depraved heart”
  MPC § 210.3 – manslaughter is “reckless”, or murder under EED
 MPC § 210.4 – negligent homicide is “negligent”
 Commonwealth v. Malone
o Teens playing Russian roulette. Malone’s actions were so grossly reckless that
death would likely result that he had the “depraved heart” that proved “malice”.
Second degree murder affirmed
 Commonwealth v. Welansky
o Wanton and reckless conduct – not of fire itself, but of general disregard for
safety in the event of a fire. Manslaughter conviction affirmed
 People v. Hall
o Experienced skier crashed into novice, killing him. Substantial risk does not
necessarily mean more likely than not, and is specific to facts. Juror could have
found that creation of substantial risk was unjustifiable. Statute has “gross
deviation” language from standard of care, consciously disregarding the risk.
Reckless manslaughter proceeds to trial (although then convicted of only
negligent homicide)

Felony-Murder

 Common Law – killing by an act done with the intent to commit a felony
 Controversies: F-M used as a backdoor when there is insufficient evidence to convict on
murder alone; also contravenes mens rea element for the specific offense of murder
 MPC does not have F-M per se, but certain dangerous activities rebuttably presume
extreme indifferences. § 210.2: “it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life. 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.” Unclear if merger doctrine applies under this approach
 Limitations on F-M – there must be direct proximate cause or foreseeability. Ex. a victim
of embezzlement who commits suicide would not meet the causation requirement
 Regina v. Serne - two men inc. Serne commit arson, Serne’s son was inside and died.
Judge advocates that “act done that is known to be dangerous to life and likely to cause
death” (instead of “killing of another with intent to commit felony”) should be murder.
(Jury does not convict)
 People v. Stamp
o Defendant burglarizes victim and told to lie in his office; victim dies of heart
attack. Despite lack of foreseeability, felon was strictly liable for the killing due to
the direct causal result. “Eggshell victim”, robber takes victim “as he finds him”
o Hypo: under this standard, Faulkner probably guilty if someone died from the fire
 People v. Phillips
o Chiropractor induces child not to get cancer treatment, but she dies as a result.
Convicted of murder in connection with grand theft. Reversed because grand theft
in abstract (vs. as applied) is not inherently dangerous, and F-M requires
 “malice”. Most jurisdictions use “as applied” doctrine, “inherently dangerous”
peculiar to California. (Defendant later reconvicted, with malice established)
o Another example of “as applied”: arson is categorically an inherently dangerous
act, but could be planned and committed without committing homicde
 People v. Burton
o Addresses the “merger doctrine”, which states that a felony cannot trigger the F-
M rule if it is an integral part of the homicide and the evidence presented would
be the same
o In Ireland, defendant shot wife with diminished capacity. F-M with assault with a
deadly weapon as the felony, instruction was erroneous since defense/mens rea
was eviscerated and malice was imputed. “Bootstrapping” not allowed
o In Wilson, underlying felony was burglary (entry + intent to commit assault with a
deadly weapon). Intent to assault was still sufficiently connected that merger
doctrine barred the F-M instruction
o Here, F-M instruction was appropriate because felony was armed robbery, not
assault, so the underlying felony was not the same act as the murder
o Merger doctrine ensures that mens rea element is not destroyed with respect to
assaults. In the absence of proof of murder, the prosecution cannot use a lesser
offense to effect the murder charge. (But – isn’t F-M generally a backdoor?)
 Derek Chauvin – committed assault resulting in homicide, but notably, Minnesota is the
only state without the murder doctrine, so F-M rule is in effect

Sexual Violence
 Traditional understanding of rape: 1) sex 2) with a woman 3) who is not the man’s wife
4) by force 5) and against her will. Possibly, the woman must have “resisted to the
utmost”
 Considers the triad of force, resistance, and non-consent
 Traditionally, marriage was the line between legal and illegal sex: now, it is consent

Force
 Force – factual issue where persuasion ends and force begins
o State v. Alston shows difficulty of evidence sufficiency. Elements of “force” often
have a traditional “fighting” notion, placing a heavy burden on victims to resist
 Resistance – utmost, earnest, reasonable, or none required. Debate on whether fear is
reasonable vs. whether defendant is aware
 Coercion and Duress – expansion of force to include nonphysical, verbal, or reputational
threats
 State v. Rusk
o A more traditional definition of rape: vaginal intercourse, by force, against will,
and without consent. Common law jurisdiction with no mens rea guidance.
Conviction was reversed but then sustained – the victim’s fear was not so
reasonable that it obviated the need for force or resistance. (??)
 In re M.T.S.
 o Juvenile delinquency (vs. adult guilt). A consent requirement is read into the
statute by the court, and invasion of bodily integrity is itself interpreted as force.
Although neither testimony was fully believed, affirmative consent was required
and there is no burden to establish non-consent

Consent
 Four possible conceptions of non-consent:
o Verbal resistance plus additional behavior (“no” plus turning away or crying)
o Verbal resistance alone (“no means no”)
o Verbal resistance or passivity/silence (either “no” but absence of verbal/conduct
permission)
o Absence of verbal permission (if not “yes”, then “no”)
 Incapacity – in case of drugs or alcohol (defective consent), liability is limited if victim
drugged by non-defendant, or victim knowingly became intoxicated
 Mistake
 Mens rea – has evolved from purposeful/knowing to reckless/negligent, now sometimes
strict liability
 Commonwealth v. Fischer
o Mistake of fact wrt consent is not a defense

Other Offenses
Possession (of Guns and Drugs)

 Actual vs. constructive possession – possession can be either directly proved or

demonstrated given the circumstancnes
 Elements of intent, as well as identity (i.e. is it drugs, is it an illegal weapon). Mass
dismissal of drug cases after lab errors discovered (a defect in proving identity)
 Guns and 2nd Amendment – a late incorporation by the states of the Bill of Rights
 Kier v. State
o Judgment reversed because State had not adequately shown constructive
possession, or that defendant had “power and intention” to “exercise control”.
Such circumstances could include attempts to flee or elude police; inconsistent
explanations for behavior; the presence of significant amounts of contraband and
drug paraphernalia; possession of large amounts of cash; other indicia of the sale
of drugs or paraphernalia; evidence that the defendant was under the influence of
drugs; or drug residue found on the defendant. State should not only prove guilt
beyond a reasonable doubt but exclude all reasonable hypotheses, which still
existed here
 State v. Williams
o Conviction overturned; misdemeanor possession vs. felony distribution. Amount
in possession could not be used to demonstrate intent
 State v. Butler
o Conversely, intent to distribute can be shown even with a small amount. Notably,
hearsay evidence was admitted without objection

Attempt

 Considers what is the probable result of the attempt

 Sliding scale of actus reus: thoughts/preparations -> substantial step (MPC § 5.01) ->
dangerous proximity (common law/NY) -> completed attempt
 Example: Involuntary manslaughter is a reckless unintentional killing – is there specific
intent as an attempt?
 MPC § 5.01: 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 which 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 which, 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.” Comment on (a): a person who tries to feed meat to a
vegetarian, not knowing that it is a Beyond Burger, has attempted because if the attendant
circumstances were as believed, he would have done it
 Hypotheticals of obtaining marijuana vs. having sex with minor. Do more serious crimes
result in the substantial step being earlier? Or should it be later, to be absolutely sure the
person intends to commit the more serious crime?
  Smallwood v. State
o Convictions for attempted murder by HIV-positive man in rapes were overturned.
HIV-positive status alone did not infer the specific intent to produce the
proscribed harm
 People v. Rizzo
o A conviction for attempt necessitates a “dangerous proximity to success”.
Because the planned armed robbers could not locate the intended target, the
dangerous proximity did not exist. Conviction overturned

Accomplice Liability

 Common Law
 MPC § 2.06(3): “(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.
o Must have “purpose” of facilitating the offense. This is a higher mens rea and
lower actus reus than the original proposal of “knowingly” and “substantially
facilitating”
 Actus reus and mens rea are entangled in determining scope of liability
 At common law, principal must be convicted before accomplice. Today, not so much
 Hicks v. United States
o Accomplice liability for murder. Requires 1) intent to abet/encourage, and 2)
specific purpose to aid and abet. Neither was present and improperly instructed.
Conviction reversed and remanded
 State v. Gladstone
o Aiding and abetting marijuana sales. Defendant gave instructions to a cop on
where to buy marijuana, but this did not amount to aiding and abetting the sale,
especially with no communication between them; no “wish to bring about”
Conviction overturned
 People v. Luparello
o Minority view of accomplice liability that examines “natural, foreseeable
consequences”, has connections to vicarious liability and felony-murder
 Wilcox v. Jeffery
o Saxophonist Coleman Hawkins “working illegally” in UK. Journalist convicted of
aiding and abetting. Wilcox had not arranged the visit but greeted him to report on
it. Mere presence (i.e. attendance) was too wide, but Wilcox had interest in
encouraging the act

Conspiracy

 Unlike accomplice liability, a standalone crime. Individuals held liable for the actions of
others
  Actus Reus – there must be an agreement, but it can be inferred from the separate acts
and circumstances rather than a formal agreement
 Overt Act – at common law, only the agreement was required. Many statutes require
overt act, although not as often for more serious offenses. See MPC § 5.03(5)
 Hypo: A is ringleader, contracts B and C to rob banks, and D steals car for B’s robbery.
Under traditional theory, only acts with sufficient agreement and intent to aid (everything
A did, and D for B’s robbery, but not much intent otherwise); under Pinkerton theory,
everyone is guilty for everything (including B and C for car theft, which was reasonably
foreseeable)
 MPC § 5.03: “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
which 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.
 Punishment Models – same limit for all conspiracies: different limits, capped below the
punishment for the conspiracy’s goal: matches the punishment for the conspiracy’s
goal/result
 People v. Lauria
o Liability for misdemeanor regarding call girl service. Reconciles two opposite
approaches
o In Falcone, knowledge of illegal use of goods was insufficient to establish intent,
encouraging free commerce
o In Direct Sales, knowledge of mass illegal use plus active promotion was
sufficient, in the case of restricted goods
o Synthesized rule: either direct evidence of knowledge and intent, OR inference
based on special interested and aggravated nature of crime. Here, the special
interest or action to promote did not exist. Dismissal affirmed
 Pinkerton v. United States
o Conviction for brother sustained on basis of “continuous conspiracy”; even if they
had not conspired on a certain offense, their general partnership in crime within
scope of conspiracy suffices for showing knowledge and intent
o “An overt act of one partner may be the act of all without any new agreement
specifically directed to that act”
 State v. Bridges
o Extreme extension of liability to criminal acts that are natural, foreseeable
consequence of the conspiracy, i.e. killing as a result of bringing weapons to
“hold people back”

Defenses (Excuses and Justifications)

 Justifications demonstrate that the defendant’s conduct was permissible or sensible (no
criminal liability because the act was right)
 Excuses demonstrate that the defendant committed a wrongful act but cannot be fairly
held responsible for it
Self-defense

 Elements from United States v. Peterson:

o Actual/apparent threat of deadly force
o That is imminent and unlawful
o Honest belief of peril
o Of death or serious bodily injury
o Belief is objectively reasonable
o Response is proportional
 Duty to Retreat – except in own home (the “castle doctrine”)
 MPC § 3.04(2) – “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
harm, kidnapping or sexual intercourse compelled by force or threat”. (Subjective test)
Also, 3.09(2); if offender recklessly or negligent has that belief, he cannot use the defense
for a crime requiring recklessness or negligence
 People v. Goetz
o Common law/NY self-defense approach. Quasi-individual test, similar to
Cassasa, that is objective but incorporates subjective elements (past experiences,
including physical attributes). Charges reinstated against man who shot four black
kids in self defense
 State v. Kelly
o Battered woman syndrome case, woman kills husband with scissors. For the
purposes of showing a reasonable belief of harm, the defendant was allowed to
bring in expert testimony. Case remanded. (Later convicted again because
defendant did not meet criteria)
 Rittenhouse – a question of mutual aggression. Wisconsin requires State to disprove
affirmative defenses (rather than for defendant to completely prove defense) – not a
constitutional requirement, allocation of burden left to individual states

Necessity

 Common Law (Illinois in Unger): conduct justifiable if defendant without blame in

developing situation, and reasonably believed they needed to act to avoid greater injury.
Hands must be entirely clean
 MPC approach § 3.02(1): “Conduct which the actor believes to be necessary to avoid a
harm or evil to himself or to another is justifiable”
 Mens rea/culpability only sufficient if recklessly/negligently created situation necessitates
purposely/knowing substantial crime. i.e. “Clean hands” rule – reckless/negligent
behavior eliminates defense unless for offenses of higher culpability. MPC § 3.02(2)
 Economic necessity, i.e. poverty, not typically a defense
 People v. Unger
o Prison escape justified because defendant was being assaulted, sexually molested,
and threatened; State pushed for a stricter set of standards from Lovercamp
 (including complaints and reporting to authorities), which can be used for witness
credibility but not for the defense itself
 United States v. Schoon
o Defendants obstructed the IRS and vandalized the office, claimed necessity due to
situation in El Salvador. Political necessity typically not a defense, no immediate
harm (even if protested harm is imminent), a form of indirect civil disobedience.
Four elements: 1) chose a lesser evil, 2) preventing imminent harm, 3) a
reasonable causal relationship between conduct and averted harm, and 4) no legal
alternatives. Defense fails for all civil disobedience cases on all but (2)

Duress

 Necessity (Justification) vs. Duress (Excuse)

 Common Law: “present, imminent, and pending” threat that induces “apprehension of
death or serious harm” (no killing of innocent). Objective or well-grounded belief
required. Economic/reputational harms insufficient
 MPC (and New Jersey), § 2.09, opens up to other kinds of harm as well as threat to
someone other than the accused. Examines moral blameworthiness. Cannot use defense
after reckless behavior, or negligent behavior for crimes of negligence
 Does duress excuse homicide? Under common law approach, no; under MPC, yes; under
New Jersey law, a downgrade
 State v. Toscano
o Chiropractor conspires to commit insurance fraud, under threat due to gambling
debts. Verbal and implied threats. Defense likely would not succeed under
common law; here, with MPC-like approach, conviction overturned
 United States v. Contento-Pachon
o Defendant threatened and so agreed to carry cocaine into Panama and then USA.
Inescapability of threat was a triable issue, as it would have been difficult to flee
from a sophisticated dealer by packing up and leaving far away

Insanity

 Insanity vs. Competency – insanity is a legal construct referring to mental state at time of
act; competency refers to mental fitness to stand trial, and an offender may need to be
treated before standing trial. An offender may be insane but competent, or conversely
sane but incompetent. Additionally, mental illness is a medical/psychological assessment
that does not alone provide an excuse
 A challenge to mens rea, as offender may either lack the intent to commit the crime or the
ability to appreciate the wrongess (and therefore not morally blameworthy)
 Model Penal Code § 4.01: “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 anti-
social conduct.”
 Hinckley acquittal resulted in restrictions of insanity defense
  M’Naghten
o Provides the rule that defendant, due to a disease of the mind and subsequent
defect of reason either must not know the quality or nature of his act, or did not
know that it was wrong. (No volition requirement) Rejects a retributive approach
in favor of a utilitarian one, i.e. no deterrence will come from convicting him.
 Blake v. United States
o Jury instructed on Davis standard, which requires person to be incapable of
distinguishing between right and wrong, or unconscious of nature of act, and his
will has been destroyed to be beyond his control. MPC standard is “lacks
substantial capacity”. Court relaxes to MPC standard and overturns conviction
 United States v. Lyons
o The volitional prong of the Blake test (inability to conform conduct) cannot be
objectively evaluated, or differentiated between irresistible and unresisted
impulses; therefore, all criminal impulses seen as resistible. Lowers probability of
successful insanity defense, especially for addiction
 Kahler v. Kansas – evidence only admitted to dispute the mens rea. In effect, there is no
real insanity defense, and if the mens rea is successfully challenged, the defendant is not
guilty and free

Entrapment and Environmental Deprivation

 Government and law enforcement facilitate illegal conduct

 People v. Jamieson
o Subjective test: principal element is defendant’s predisposition, i.e. whether they
are otherwise innocent. In effect, thoughts are now admissible as evidence, which
is not typically allowed
o Objective test: whether police conduct did not meet standards for proper use of
governmental power
o Objective test preferred here, despite its supervisory nature, because goal is to
prohibit unacceptable conduct. That abuse of discretion did not exist; defendant’s
conviction affirmed
 Ecoterrorism case, Eric McDavid et al. – subjective test, FBI informant induced criminal
activity by promising sexual relationship