CRIMINAL LAW

Spring 2022

Emma Jo Hirschy

Florida State University College of Law

 Emma Jo Hirschy

TABLE OF CONTENTS

Depraved Heart Murder .................................................17

TABLE OF CONTENTS ............................................. 1
Involuntary Manslaughter..............................................17
INTRODUCTION ........................................................ 1 Felony Murder..................................................................18
Justifications for Punishment ........................................... 1 Limiting Doctrines .........................................................20
Utilitarian ........................................................................ 1 In Furtherance of a Felony ........................................20
Retributivism .................................................................. 1 Inherently Dangerous Felony Requirement ..............20
Independent Felony/Merger ......................................21
Who do we Punish? Procedures and Protections of the
Criminal Justice System ................................................... 1 RAPE ............................................................................ 22
Who to Punish? ............................................................... 1
Actual & Constructive Force ..........................................22
Goals of the Criminal Justice System ............................. 2
Procedural Protections of the CJS .................................. 2 Non-Consent & Silence ....................................................23

Principles of Legality ........................................................ 2 Rape Shield Laws .............................................................24

Constitutional Challenge................................................. 3 Statutory Rape..................................................................25
Selective Enforcement/Vagueness .................................. 3 Evolution of Rape Laws ............................................25
ACTUS REUS ............................................................... 4 Common Law .......................................................25
Modern Reform.....................................................25
Voluntary Act .................................................................... 4
INCHOATE CRIMES ................................................ 25
Omissions (No Duty to Act) .............................................. 5
Attempt .............................................................................25
MENS REA ................................................................... 5 Mens Rea .......................................................................26
Common Law Intent ......................................................... 6 Actus Reus .....................................................................27
General Intent ................................................................. 6 Dangerous Proximity Test .........................................27
Specific Intent ................................................................. 6 Physical Proximity Test ............................................28
Transferred Intent Doctrine ........................................ 7 Unequivocally Test ...................................................28
Social Harm ................................................................ 7 Model Penal Code – MPC §5.01(1)(c) – Substantial
Step ............................................................................28
Model Penal Code – Mens Rea......................................... 7
Abandonment ............................................................29
Statutory Interpretation ................................................... 8
Willful Blindness ............................................................ 8 Conspiracy ........................................................................29
Mens Rea ...................................................................30
Mistakes.............................................................................. 9
Actus Reus.................................................................31
Factual Mistakes ............................................................. 9
Bilateral v. Unilateral Agreements ............................31
Legal Mistakes ................................................................ 9
Structure of Conspiracies ..........................................32
Authorized-Reliance Doctrine .................................. 10
Withdrawal and Liability for Co-Conspirators’
Legal Wrong Doctrine .............................................. 10
Acts .......................................................................33
STRICT LIABILITY ................................................. 10 Affirmative Rejection of Conspiracy
Communicated to Co-Conspirators .......... Error!
CAUSATION .............................................................. 12 Bookmark not defined.
Actual Causation ............................................................. 12 Model Penal Code – Renunciation Defense
.......................... Error! Bookmark not defined.
Proximate Causation ....................................................... 13
Solicitation ........................................................................33
HOMICIDE ................................................................. 13
DEFENSES .................................................................. 33
Intentional Murder ......................................................... 14
Proving Intent ............................................................... 15 Self-Defense.......................................................................34
Voluntary Manslaughter ............................................... 15 Reasonableness..........................................................35
Defense of Others ......................................................36
Unintentional Murder ..................................................... 17

1
 Emma Jo Hirschy
Necessity ........................................................................... 36 Insanity ..............................................................................39
Duress ............................................................................... 37 Exam Preparation ....................................................... 40
Competency to Stand Trial............................................. 38

INTRODUCTION
Henry Hart What is punishment? (Kent Greenwalt)
• “Criminal law [is] a process, a way of doing • “Pain or deprivation that people wish to avoid.”
something.” • Characteristics of punishment:
o Creating rules o (1) Performed by and directed at responsible
o For a community agents
o Violations are subject to investigation, § God and humans can punish.
prosecution, and sanction. Hurricanes cannot.
o (2) Involves harmful/unpleasant consequences
o (3) Preceded by judgment of condemnation
Categories of Criminal Law o (4) Imposed by one who has authority to do so
• Malum in se (evil in itself): inherently wrong o (5) Imposed for breach of established rule
regardless of written laws (i.e., murder) o (6) Imposed on an actual or supposed violator
• Malum prohibitum (prohibited act): crimes that exist of the rule
only because the law says so (i.e., traffic violations, **Merely being arrested by law enforcement
jaywalking, drinking under the age of 21, etc.) is not punishment because it does not satisfy
• Misdemeanors: punishable by incarceration of up to 1 element 2 or 4. Police do not have authority to
year. punish a violator of the law. This power is
• Felonies: punishable over a year and up to the death invested in the judicial branch instead.
penalty.

Justifications for Punishment

Utilitarian
Justification lies in the supposed benefits that will accrue from its imposition (to prevent future harm)
• Both crime & punishment are bad. They both result in pain.
• Pain of punishment is unwarranted unless it prevents a greater amount of pain in the form of future crime.

Jeremy Bentham (1843): Punishment needs to exclude some greater evil.

• Punishment must be grounded, effective, cost-worthy, and necessary.
• Cost-benefit analysis
o Cost of punishment: state (responsibility of imposing imprisonment), criminal (pain & loss of liberty), societal (cost
of incarceration, loss of productivity, etc.), victims (effects of imprisoning their offenders), family/friends of
defendant (loss of family member, loss of financial support, etc.)
o Benefits of punishment/forms of utilitarianism (Kent Greenawalt, 2002)
§ General deterrence: Knowledge that punishment will follow crime deters people from committing crimes,
thus reducing future violations of right and the unhappiness and insecurity they would cause.
§ Specific deterrence: The actual imposition of punishment creates fear in the offender that if they repeat
their act, they will be punished again.
§ Incapacitation: Imprisonment temporarily puts convicted criminals out of general circulation, and the
death penalty does so permanently.
1
 Emma Jo Hirschy
§ Reform: Punishment may help to reform the criminal so that his wish to commit crimes will be lessened,
and perhaps so that he can be a happier, more useful person.

Hypo: Imagine a brutal, execution-style double-homicide. The Hypo: Imagine an offender who, upon walking up to a roadway,
shooter is caught in convicted. There is no question of their fails to use the crosswalk. There is no traffic, so he causes no
guilt. Now imagine that the shooter could be given a single pull accidents, and he crosses safely to the other side. He is caught
that would “cure” any criminal impulses they might have for the and convicted of jaywalking. As it turns out, he is a habitual
rest of their lives. The day after trial, the pill is administered, jaywalker. The only way to cure him is 15 years of intensive
and the shooter will spend the remainder of their life as a electro-shock therapy at a secure prison.
productive, law-abiding citizen. • View one: No. This does not equate to justice. The
• View one: No. There would be a lack of accountability costs are disproportionate to the level of the crime.
for their actions. Very inefficient and costly to give someone shock
• View two: No. There would be a lack of deterrence and therapy for 15 years.
may even encourage it.

Retributivism
The commission of the wrongdoing is what justifies the punishment. An eye for an eye.
• “Just deserts” ® the criminal should get what they deserve.
• Courts look to the past as opposed to utilitarianism that looks to preventing harm in the future.
o Goal: to punish for what they did. If it deters future harm, then that’s just an added bonus.

Who do we Punish? Procedures and Protections of the Criminal Justice System

Who to Punish?
Queen v. Dudley & Stephens (1884)
• Rule: A person may be punished and convicted of murder, despite killing out of necessity.
• Facts: Two English seamen were convicted of murder for killing and eating a young crew member while they were
shipwrecked.
• Did the Ds act properly?
o Utilitarian ® Yes. Through a cost-benefit analysis, killing the victim saved three other lives and the benefits
outweighed the costs.
o Retributivists ® No. Killing is wrong, and it should not have happened.
• If killing was wrong, is punishment justified?
o Utilitarian ® No. Punishment would not deter them or others from committing such a crime. This was a situation of
necessity, and one would not commit the crime unless absolutely necessary. Incapacitation would not serve any
purpose because the Ds would not have committed the crime but for being lost at sea without food. It would be
highly unlikely that the Ds would be placed in such a situation again. Reform would also be impracticable because
the Ds did not wish to kill the victim but rather felt that it was their only option. It would be extremely unlikely that
the Ds would re-enter society and wish to kill and eat someone again.
o Retributivist ® Yes. An eye for an eye.

People v. Superior Court (Du) (Cal. App. Ct. 1992) – What level of punishment is necessary?
• Rule: The amount of punishment imposed for voluntary manslaughter depends on the facts of each case.
• Facts: A liquor store owner was convicted of voluntary manslaughter, after shooting and killing a young customer, believed
to be a shoplifter, in the back of the head while the customer was leaving.
• Analysis – Should D be given probation or sent to prison?
o Consider the surrounding circumstances, keeping in mind the history of problems that plagued D and the liquor
store.
§ D had observed many shoplifters in the store, and it was her experience that people who shoplifted would
take merchandise, hide it, then approach the counter, pay for a smaller item, then leave.

1
 Emma Jo Hirschy
§
o Keep in mind that fifty-one-year-old D was assaulted, albeit by a young woman fifteen years of age.
§ V hit D with her fist, twice in the eye, causing D to fall behind the counter. D, believing that if she was hit
one more time she would die, then threw a stool from behind the counter that missed V.
o The gun was unknowingly altered with a hair pin trigger, giving the contention that the murder was accidental
greater strength.
§ D said she did not remember firing and that she did not intend to kill V. The gun was purchased in 1981 by
D’s husband but was never fired.
o Consider whether Du (D) overreacted, and if so, whether the overreaction was understandable.
o Consider Latasha’s background, and her actions during the incident.
o Consider which form of punishment would better serve a societal purpose, based on theories of utilitarianism and
retributivism.

Goals of the Criminal Justice System

(1) Control the populace ® There are things we do not want people to do.
• Concerns: tyranny, favoritism to factions, etc.
(2) Fairness ® We want to treat similarly situated people the same.
(3) Accuracy ® We want to punish people who deserve punishment and protect those who do not.
(4) Control of the state ® We want to prevent tyranny and corruption.

Procedural Protections of the CJS

6th Amendment – Right to Trial by Jury
• “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
• Applies to prosecutions of all non-petty offenses (any offense for which the maximum potential punishment exceeds
incarceration of six months)

“Proof Beyond a Reasonable Doubt”

• In re Winship ® The Due Process Clause of the U.S. Constitution requires the prosecutor to persuade the fact finder
“beyond a reasonable doubt of every fact necessary to constitute the crime charged.”
o Necessary because the D is at risk for losing their liberty upon conviction and be stigmatized.
o If there is a reasonable doubt about the D’s guilt, then society cannot condemn them.
o Commands the respect and confidence of the community in applications of the criminal law.
o Justice Harlan (Concurrence): “I view the requirement of proof beyond a reasonable doubt in a criminal case as
bottomed on the fundamental value determination of our society that it is far worse to convict an innocent man than
to let a guilty man go free.”
• Jackson v. Virginia (1979) ® The standard requires that a juror’s mind be in a “subjective state of near certitude” of guilt.

Owens v. State (Md. 1992) – Circumstantial Evidence Can Indicate Guilt

• Rule: A conviction based upon circumstantial evidence alone, may be sustained if the circumstances are inconsistent with any
reasonable hypothesis of innocence.
• Facts: An intoxicated person, found asleep behind the wheel of a car parked in a driveway, with its motor running and lights
on, was convicted of drunk driving, even though there was only circumstantial evidence that the car was driven on the
highway.
• Holding: Conviction affirmed.
o Exemplifies that the burden of proof can be met, even if only circumstantial evidence is available.

Principles of Legality
“No crime without law, no punishment without law.”

2
 Emma Jo Hirschy
• Conduct must be defined to give notice to the Three Corollaries:
population. (1) Laws must be understandable to reasonable, law-
o If laws are too vague, they will be over- abiding people
inclusive. (2) Statutory language must be clear to prevent ad hoc,
o If laws are too narrow, they will let criminals subjective determination about policy
find loopholes. (3) Rule of lenity

• Rule of Lenity (MPC 1.02(3)) Key Takeaway’s

o Not applied often today • Physical components of a criminal statute
o If there is a more lenient view in favor of the o Conduct, circumstances
government and a more lenient view in favor
of the D, then the court should take the few
most favorable to the D.

Commonwealth v. Mochan (PA 19855) – Common Law Offenses Not Codified in Criminal Code
• Rule: When the conduct alleged is not prohibited expressly by criminal statute, a violation of the legality principle does not
exist if a statutory provision permits punishment of common law offenses.
o Whatever opening and outrages decency and is injurious to public morals is a misdemeanor at common law.
o Seems to violate the legality principle. It seems that the courts were making an unwarranted invasion of the
legislative field in this decision.
• Facts: The trial court convicted Mochan for a common law misdemeanor not codified expressly as a statutory offense for
telephoning a woman several times per week and making lewd and obscene comments to her. The charge was based on the
common law notion that you cannot do things to harm public morale.

Constitutional Challenge
“A criminal statute must be sufficient definite to give notice of the required conduct to one who would avoid its penalties, and to guide
the judge in its application, and the lawyer in defending one charged with the violation.”

In re Banks (N.C. 1978) – Identifying Vague & Overbroad Statutes

• Rule: Prior judicial interpretation of the terms of a statute challenged for unconstitutional vagueness can vitiate the challenge.
• Facts: Banks was charged with violating a Peeping Tom Statute, which criminalized conduct where a person secretly peeped
into any room occupied by a female person. Conviction upheld.
• A criminal statute is not void for vagueness if:
o It gives fair notice of the criminalized conduct; and
§ “Guess at its meaning”
o It provides sufficient guidance to judges and defending lawyers.
• A criminal statute is not void for overbreadth if:
o There is an available interpretation that does not inadvertently criminalize permissible actions.
§ Prohibits innocent conduct
• Interpretative Guideposts:
o Common law meaning
o Statutory history
o Prior judicial interpretation of statutory terms.

Selective Enforcement/Vagueness
Language must be clear to prevent ad hoc/subjective interpretations or uses.

A law violates the Due Process Clause of the 14th Amendment if it:
(1) Fails to provide individuals with adequate notice of what is criminal conduct; OR
(2) Is so standardless that it allows arbitrary and discriminatory enforcement.

Desertrain v. City of Los Angeles (9th Cir. 2014) – Failure to Provide Adequate Notice of What is Criminal Conduct
3
 Emma Jo Hirschy
• Rule: A statute fails under the Due Process Clause of the 14th Amendment if it is so vague and standardless that it leaves the
public uncertain as to the conduct it prohibits or promotes discriminatory enforcement.
• Facts: Desertrain and the other plaintiffs claimed that a Los Angeles ordinance that prohibited using a car as living quarters
was unconstitutionally void for vagueness. Specifically, no person could use a vehicle as ‘living quarters either overnight,
day-by-day, or otherwise.” Ordinance declared unconstitutional.
o Vagueness
§ Didn’t define living quarters
§ Didn’t specify what an otherwise long period of time was
o Selective Enforcement
§ Broad enough to cover any driver who ate or transported belongings in a car, but only applied to homeless
individuals. Easy to infer that the officers involved knew that the persons being cited were homeless.

ACTUS REUS
Voluntary Act
Common Law – Voluntary Act
• Crime requires: Conduct & voluntariness
• Physical components of a criminal statute
o Conduct
§ Must be defined in advance
§ Must be reasonably clear
§ Must include at least one voluntary act or omission (see Decina)
o Circumstances
o Consequences
• A voluntary act is a requirement of a crime.
o Mere thoughts ® cannot be punished for thoughts with no action.

Model Penal Code § 2.01 – Voluntary Act

(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 required.
(2) The following are not voluntary acts:
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.

Martin v. State (Ala. 1944) – Voluntary Act Required for Each Element of a Crime that Requires Actus Reus
• Rule: A defendant must perform the physical act for each element of a crime that has an actus reus component.
• Facts: Police officers arrested an intoxicated man at his home, took him onto a highway, and arrested him for public
drunkenness. Conviction reversed.
o Under the plain language of the statute, one convicted of being drunk in a public place must have voluntarily placed
himself there.
o If the accused is taken involuntarily and forcibly carried to a public place by an arresting officer, a charge of being
drunk in a public place cannot stand.

Common Law – Unconscious Acts

• An act committed while one is unconscious is in reality no act at all, physical event, or occurrence for which there can be no
criminal liability.
• State v. Utter (Wash. 1971) – Actus Reus Not Satisfied for Unconscious Acts

4
 Emma Jo Hirschy
o Rule: A voluntary act requires the consent of the actor’s will. However, voluntarily induced unconsciousness, such
as by drugs or alcohol, is not a complete defense.
§ If the evidence at trial would allow a jury reasonably to find that the D’s act was involuntary, the trial court
should instruct the jurors on the issue as an affirmative defense.
o Facts: An intoxicated father with an alleged condition response fatally stabbed his son in the chest. Conviction
upheld.
§ Alcohol consumption = voluntary, so everything proceeding its consumption = voluntary

Common Law – Inclusion of Voluntary Acts

• It is sufficient that the person’s conduct included a voluntary act, not necessary for all parts to be voluntary.
• People v. Decina (N.Y. 1956)
o Facts: D knew he was epileptic and was driving a car. He had a seizure and caused a crash that killed four people.
§ Charged with negligent driving that caused the death of a human sunce he voluntarily drove while knowing
he was an epileptic.

Omissions (No Duty to Act)

Common Law – Omission
• A person is not guilty of a crime for failing to act, even if such failure permits harm to occur to another, and even if the
person could have acted at no risk to their personal safety.

People v. Beardsley (Mich. 1907) – Mere Moral Obligations to Act Do NOT Create Legal Duties to Act
• Rule: A person may be criminally liable if he fails to perform a legal duty and his omission causes harm.
• Facts: Intoxicated male failed to assist his mistress who was in a stupor from drinking alcohol and ingesting morphine. She
died. Conviction set aside.

Model Penal Code § 2.01(3) – Omission

(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.

Summary of Situations Giving Rise to Legal Duty to Act

A Legal Duty to Act May Arise When:
R The victim and the accused stand in a special relationship (e.g., child/parent, husband/wife)
R A statute prescribes a specific duty (e.g., filing a tax return)
R A contract creates the duty to act (e.g., contract to provide care for disabled person)
R The duty is voluntarily undertaken (e.g., volunteer babysitter)
R The defendant created the peril (e.g., defendant who renders victim unconscious must assist victim to avoid potential
criminal liability for murder)
R The defendant has a level of control over the actor such that a duty to prevent criminal conduct is created (e.g., an
employer may have a duty to prevent an employee from committing crimes while “on the job”)

Rationale:
(1) Criminal conduct requires a guilty state of mind, and it is often too hard to determine state of mind in omission cases.
a. Punishing omitters runs the risk of convicting innocent people.
(2) Where do we draw the line? (50 strangers’ example)
(3) May cause more harm than good.
(4) We highly value individual liberty in the U.S., so we don’t want to coerce people to do things against their wills.

MENS REA
5
 Emma Jo Hirschy
“An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless the intent be criminal.”
• Mental dimensions of a crime
• “Even a dog distinguishes between being stumbled over and being kicked.” – Holmes

United States v. Cordoba-Hincapie (U.S. District Court 1993) – Requirement of Mens Rea
• Rule: Someone needs to be guilty of the mens rea required for the offense, not just have a guilty mind in general.

Common Law Intent

1. If it was their conscious object to cause the result; OR
2. If they knew that the harm was virtually certain to occur as the result of their conduct.

General Intent
• Prosecutor only needs to prove mental state relating to harms of the offense.
o E.g., Battery = “Intentional & harmful physical contact with another person.” Words that Indicate you are in a
• No need to prove intent to cause harm. Common Law Jurisdiction:
• Examples: Maliciously
o “Intentionally trimming a beard without a license.” Feloniously
o “Operating a motor vehicle in a reckless manner.”

Regina v. Cunningham (Eng. 1957) – Mens Rea Requires More Than “Wickedness”
• Rule: The mens rea requirement is satisfied by a showing of either intentional or reckless conduct. A showing of malice or
wickedness will not suffice.
o The term “malice” in a criminal statute does not mean general wickedness; it means either
§ (1) An actual intention to do the particular kind of harm that was in fact done; OR
§ (2) Reckless disregard of a foreseeable risk that the harm would result.
• Particular harm foreseen; risk taken.
• Facts: A thief stole a gas meter from the basement of a house, which caused the gas to leak into an adjoining house and
partially asphyxiated an elderly woman who lived there. Conviction quashed.
o General intent ® To maliciously remove the gas meter.

Specific Intent
• Prosecutor must prove extra element beyond general harm of the statute.
o E.g., Aggravated battery = “Intentional & harmful physical contact with another with the intent to maim or
disfigure.”
• Types of Specific Intent:
o Intent to commit a future crime
§ “Possession of marijuana with the intent to sell.”
o Particular motive
§ “Distribution of sexually explicit photos with the intent to humiliate.”
o Awareness of certain circumstances
§ “Sale of pornographic material to a person known to be under the age of 18.”

People v. Conley (Ill. 1989) – Intent is a Desire to Bring About a Specific Harm or Knowledge its Practically Certain to Occur
• Rule: A person acts with intent if it is his conscious object to cause a social harm or he knows that such harm is almost
certain to occur as a result of his conduct.
o Intent to commit a crime may be inferred where the natural and probable consequences of the wrongful act produce
the result of the crime.
• Defined common law terms “intentionally” and “knowingly”
o Intentionally = Conscious objective / purpose to accomplish particular result
o Knowingly = Conscious awareness that particular result is practically certain to follow.

6
 Emma Jo Hirschy
• Facts: After an altercation at a high school party, two boys got into a fight where one boy hit the other in the face with a wine
bottle, which caused extensive injuries to the other boy’s mouth and teeth. Conviction affirmed.
o Transferred intent applied.
§ D may not have intended to permanently disfigure someone by swiping his bottle at someone. The only
thing he could have meant was swinging the bottle.

“Willfully” ® Common law indicator of specific intent

Transferred Intent Doctrine

A person acts “intentionally” if the result of their conduct differs from that which they desired only in respect to the identity of the
victim.
• “Intent follows the bullet”
• Is the exact same type of harm that D intended to cause to X that was actually caused to Y?
• Example: A shoots at B & misses but instead hits and kills a policeman.
o Transferred intent is only applicable for general murder, not for murder of a policeman (harsher offense).

Applies in both Common Law and Model Penal Code.

Social Harm
D must intend to cause the social harm that was caused.
• Shooting range example ® Intended to pull the trigger, did not intend to shoot the person who jumped in from of the gun.

Sandstrom v. Montana (U.S. 1979) – The Law Does Not Presume Intention to Cause Harm
• Rule: It is unconstitutional for a judge to instruct the jury that “the law presumes” that a person intended the ordinary
consequences of his voluntary acts.
o The D cannot be required to disprove that he intended the ordinary consequences of his voluntary acts.
o The Constitution is not violated if the jury on its own applies its common sense in such circumstances. A judge is
allowed to inform the jurors that they may, but need not, draw such an inference.

Model Penal Code – Mens Rea

Model Penal Code § 2.02 – Mens Rea
o “A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligent, as the law may require
with respect to each material element of the offense.”

Four Levels of Mens Rea

(1) Intent / Purpose ® A person acts purposely if it is their conscious object to perform an action of a particular nature or to
cause the result.
a. Conduct / Result Elements: Conscious object
b. Attendant Circumstances: Belief or hope that circumstances exist
i. Ex. Burglary – The breaking and entering of a dwelling at night; what must the prosecutor prove?
1. Actor was consciously trying to break and enter.
2. Into something he believed or hoped was a dwelling, while he believed or hoped it was night.
(2) Knowledge ® A person knowingly causes the result if they are aware that the result is substantially certain to result from
their conduct.
a. Conduct / Circumstances: Awareness that conduct is of that nature or that such circumstances exist
b. Result: Awareness that the result is substantially certain
i. Ex. Burglary – what must the prosecutor prove?
1. Actor was aware that he was acting in a way that we call breaking/entering.
2. Into something he was aware was a dwelling, while he was aware that it was night.

7
 Emma Jo Hirschy
(3) Reckless ® A person is said to have acted recklessly if they “consciously disregard a substantial & unjustifiable risk that the
material element exists or will result from [their] conduct.”
a. Conscious risk-taking Difference between
recklessness & negligence:
b. Actual awareness (less than a substantial certainty)
Reckless ® Actually aware
c. Substantial & unjustified Negligence ® Should have
i. “Involves a gross deviation from the standard of care that a reasonable been aware
person would observe in the actor’s situation.” Negligence is only used where
DEFAULT STANDARD. USE IF A DIFFERENT STANDARD IS NOT a statute explicitly says so.

IDENTIFIED IN STATUTE.
(4) Negligence ® A person is said to act negligently when they should be aware of a substantial & unjustifiable risk that the
material element exists or will result from their conduct.
a. Inadvertent creation of substantial and unjustified risk.
b. Actor should have been aware of risk.
c. What would a reasonably prudent person had done?

Actus Reus
Conduct Circumstance Consequence
Conscious object to perform
Belief or hope that certain Conscious object to cause the
Intent / Purpose an action of this particular
conditions exist result
nature
Awareness that conduct is Awareness that such Awareness that the result is
Knowledge
of that nature circumstances exist substantially certain
Mens Rea Aware that the
Awareness that a risk would
Recklessness Conscious risk creation circumstances have a
be created
substantial and justified risk
Inadvertent creation of
Should have been aware that Should have been aware that
Negligence substantial and unjustified
the risk was present the risk would result
risk

Statutory Interpretation
Model Penal Code § 2.02(d)(4) – Prescribed Culpability Requirement Applies to All Material Elements
• When the law defining an offense prescribed the kind of culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements thereof, such provisions shall apply to all the material elements of the
offense, unless a contrary purpose plainly appears.

Flores-Figueroa v. U.S. (U.S. 2009)

• Rule: If a statute introduces the element of the crime with "knowingly," then it applies to every single element of the offense.
• Facts: Flores previously provided a social security number that was fake to his employer. The SSN in this case is a real one
but D claimed he did not know that it was real. He was convicted for aggravated identity theft. Conviction was reversed.
o The government failed to establish that the D acted with requisite guilty knowledge that numbers on the alien
registration cards he presented to his employer belonged to another person, as opposed to merely being counterfeit.

MWillful Blindness
Model Penal Code § 2.02(7) – Requirement of Knowledge Satisfied by Knowledge of High Probability
• “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person
is aware of a high probability of its existence, unless he actually believes that it does not exist.”
• Willful blindness is not a separate or lower standard, but a way to prove knowledge.

State v. Nations (Miss. 1984) – “Knowingly” Means Having Actual Knowledge of Attendant Circumstances

8
 Emma Jo Hirschy
• Rule: Unless the applicable criminal code states otherwise, a requirement that a person commit a certain act “knowingly”
with respect to a particular fact will not be satisfied unless the person had actual knowledge of the existence of the particular
fact. Conviction reversed.
• Facts: A nightclub owner was charged with endangering the welfare of a child less than seventeen years old when she hired a
sixteen-year-old to dance in her club. She claimed that she had asked the girl for identification and that she thought the girl
was eighteen.
o Missouri did not adopt the MPC’s willful knowledge standard.

Mistakes
Criminal statutes require mens rea. Prosecutors must prove beyond a reasonable doubt and defense argues why the prosecutor cannot
meet burden. This can be done through arguing that the mens rea does not exist.
Statute Requires Specific Intent Statute Requires General Intent
Reasonable Mistake of Law Guilty Guilty
Unreasonable Mistake of Law Guilty Guilty
Reasonable Mistake of Fact Exonerates Exonerates
Unreasonable Mistake of Fact Exonerates Guilty

Factual Mistakes
Common Law – Mistake of Fact
• An appropriate defense.
• Operates as an excuse or failure of proof if mistake calls into question the proof of one of the elements.
o Ex. ® Mistakenly throwing a man off a train who had paid; allows a minor to play billiards mistakenly.
• Specific Intent ® Both reasonable and unreasonable mistakes of fact exonerate when they negate mens rea.
• General Intent ® Only reasonable mistakes of fact exonerate when they negate mens rea.

People v. Navarro (Cal. 1979) – A Mistake of Fact is a Defense to a Specific Intent Crime When It Negates Mens Rea
• Rule: With regard to a specific intent crime, a mistake of fact is a defense if the mistake negates the specific intent required in
the definition of the crime.
o If the offense is a general intent crime, only a reasonable mistake of fact will provide a defense for the accused.
o For specific intent crimes, both reasonable and unreasonable mistakes exonerate.
• Facts: A man was charged with theft for taking four wooden beams from a construction site. He argued that he had no intent
to steal the beams because he thought they had been abandoned.

Model Penal Code § 2.04 – Ignorance or Mistake

(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
§ For crimes involving negligence, a mistake as to fact that is a “gross deviation” from what a reasonable
person would understand will still suffice for liability.
b. The law provides that the state of mind established by such ignorance or mistake constitutes a defense.

Legal Mistakes
Common Law – Mistake of Law
• Ignorance of the law is NOT an excuse (see Marrero). It is not an acceptable defense.
• EXCEPT if the statute specifically makes knowledge of the law an element of the crime.

People v. Marrero (N.Y. 1987) – Mistakes of Law Exceptions are Applied Extremely Narrowly
• Rule: An erroneous interpretation of the law does not excuse violation of the law, even where the interpretation is reasonable.
o The majority’s decision may be too narrow. It is highly controversial.
o Mistake of law is generally NOT exculpatory. Ignorance of the law is not an excuse.

9
 Emma Jo Hirschy
• Facts: Marrero, a federal corrections officer, was convicted for violating a statute which he believed gave him the right to
carry a gun. The statute provided an exemption for peace officers, which included “correction officers of any state correction
facility or of any penal correctional institution.”

Model Penal Code § 2.04 – Ignorance or Mistake

• (3) A belief that conduct does not legally constitute an offense is a defense when:
• The statute or other enactment defining the offense is not known to the actor and has not been published or
reasonably made available prior to the conduct alleged
• Broader than common law.

Justifications
(1) Certainty ® The law is definite, so any mistake of law is inherently unreasonable.
(2) Fraud ® The mistake of law defense invites fraud.
(3) Promotes knowledge of the law ® If people know they cannot use ignorance as a defense, then it will incentivize knowledge
of the law.

Authorized-Reliance Doctrine
A person is not guilty of a criminal offense if, at the time of the offense, he reasonably relied on an official statement of the law, later
determined to be erroneous, obtained from a person or public body with responsibility.
• A mistake of law is exculpatory if the mistaken belief is based on “an interpretation of the statute or law … officially made or
issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of
administering, enforcing, or interpreting such statute or law.”

Model Penal Code § 2.04(3) – Official Statement of the Law

• A belief that conduct does not legally constitute an offense is a defense when:
• (b) He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or
erroneous, contained in either:
i. A statute or other enactment
ii. A judicial decision, opinion, or judgement
iii. An administrative order or grant of permission
iv. An official interpretation of the public offer or body charged by law with responsibility for the
interpretation, administration, or enforcement of the law defining the offense.

Reasonable Reliance and Lawyers

• Reliance on a personal lawyer’s advice is NOT a defense.
• Lawyers are trained to assist their client to obtain what they want.

Legal Wrong Doctrine

A mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the
wrong actually committed.

Model Penal Code § 2.04 – Legal Wrong

• (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.
o In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense
which he may be convicted to those of the offense of which he would be guilty had the situation been as he
supposed.

STRICT LIABILITY
Strict liability offenses require no mens rea element part of a crime.
10
 Emma Jo Hirschy

Checklist of Strict liability Factors for Common Law

The Following Suggest that a Strict Liability Crime was The Following Suggest that a Strict Liability Crime was not
Intended: Intended:
R The crime is a “new” statutory offense rather than one R The crime closely resembles a traditional common law
of the traditional common law offenses crime
R It does not involve a direct and positive infringement R The act constituting the crime involves a direct and
on the rights of other persons serious infringement on the rights of others
R It is part of a broad regulatory scheme R A severe penalty is imposed on conviction
R It imposes a relatively light penalty upon conviction R Strict liability would clearly or likely be
R Requiring proof of mens rea would impede unconstitutional.
implementation of the legislative purpose
R The offense is part of a regulatory scheme designed to
further the general welfare, or it is a traffic offense.

Common Law – Strict Liability

• Generally invoked in the context of public welfare offenses (offenses where social utility outweigh what potentially innocent
individuals suffer). Strict liability outside of context of public welfare is not OK.
• Involves a Utilitarian balancing test. Factors that make it more likely that strict liability will be imposed:
o Generally carries a low penalty that does not have stigma attached
o Harms are greater
§ E.g., dealing with inherently dangerous produce
o No root in common law crime
o Part of an existing regulatory scheme
o Defendant is in a good position to prevent the harm and knows they are dealing in a regulated field (sophisticated
actor)
• Cannot apply public welfare rationale to felony offense UNLESS clear statement from Congress.

Morissette v. United States (U.S. 1952) – Mens Rea is Required Unless the Statute is Clear that a Crime is Strict Liability
• Rule: Failure by the legislature to include mens rea in criminal statutes that is normally required at common law does not
mean the crime is strict liability.
• Facts: Morissette ventured onto a military bombing range and retrieved some spent bomb casings. He was convicted for
“knowingly converting” government property. He said he did not know it was government property, so he did not intend to
steal government property. Conviction Reversed.

Staples v. United States (U.S. 1994) – Federal Strict Liability Requires Clear Intent from Congress
• Rule: If a federal crime does not expressly state a mens rea requirement, the determination of the necessary mental state is
made by construing the statute itself and by examining intent of Congress.
o Offenses that require no mens rea generally are disfavored, and have suggested that some indication of
congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.
o It needs to clearly state that mens rea is not required to constitute a valid strict liability offense.
• Facts: A man was charged with violating a federal statute that required registration of automatic weapons because police
found a modified AR-15 civilian rifle (similar to the M-16 military machine gun) in his home. Conviction reversed.

Model Penal Code § 2.05 – When Culpability Requirements are Inapplicable…

(1) The requirements of culpability prescribed in §§ 2.01 and 2.02 do not apply to:
a. Offenses which 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.
***Not considered strict liability offenses. Only violations.
11
 Emma Jo Hirschy

Purpose – To make prosecution easier by limiting the amount of proof the prosecution needs to receive a conviction.
• The state is looking to punish “public welfare” or “regulatory” offenses.
• These offenses are usually minor and result in smaller penalties.
• With respect to regulatory offenses, doing away with the prosecution’s duty to prove the mental element lessens the burden
on our court systems and promotes social compliance with regulatory schemes.

Policy Concerns
• Imposing strict liability sometimes means that people who had no intention of violating the law or did not even know that
their conduct was illegal are convicted of crimes.
• Conviction in such a case seems to run counter to the notion that our criminal justice system only punishes those who
perform proscribed acts with a sufficiently culpable state of mind.

CAUSATION
Actual Causation
Common Law – Actual Cause
• A person is not guilty of an offense unless they are an actual cause of the ensuing harm.
• Two options
o But for causation ® But for D’s actions, would result have occurred?
o Substantial factor causation ® C1 and C2 both and concurrently cause E.

Model Penal Code § 2.03(1)(a) – Causal Relationship Between Conduct and Result
(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.

Multiple Actual Causes – Actual Cause is Satisfied Even When There is More than One Actual Cause
• Use this when there are acts that are independent of one another that cause the same result.
• Examples:
o D1 shoots V in the stomach. V will die in two hours. D2 comes along (independently) and also shoots V. If it were
just the bullet wound from D2, V would die in 5 hours. The two wounds combined cause V to die in 1 minute. Both
D1 and D2 were actual causes.
§ Acceleration: But for D1’s action, V wouldn’t have died (because D2’s shot would have killed them
regardless), BUT D1 accelerated the death. But for D2’s action, V wouldn’t have died (same logic).
o A stabs C in chest (will die in 15 minutes). B shoots C and he dies. Both are but for actual causes.
o A stabs C (will die in 15 minutes). B shoots C and he dies. Both are but for actual causes.

Oxendine v. State (1987) – Proof Beyond a Reasonable Doubt of Actual Causation is Necessary
• Rule: Actual causation is a necessary pre-requisite to the imposition of criminal liability.
• Facts: A father was convicted of manslaughter, after beating his six-year-old child who had been earlier pushed into a bathtub
(causing injuries) by the father’s girlfriend.
o Multiple actual causes
o The court equated actual cause with acceleration.
o “But for D’s infliction of the second injury, would the child have died when he did?”

Concurrent Sufficient Causes – But for Test Fails but Concurrent Acts are Sufficient to Actually Cause the Resulting Harm
• Neither act is a “but-for” cause because two acts, either one of which is sufficient to cause the resulting harm when it did,
occurred concurrently.
• Use when the actions are not independent but rather occur at the same time.
• Example:
12
 Emma Jo Hirschy
o D1 and D2 (not acting in concert) shoot V simultaneously and V dies from a wound to the heart. Either would have
killed V.
• Substantial Factor Test: “Was D’s conduct a substantial factor in the resulting harm?”
o MPC does not use the substantial factor test in its language. But it does look at the “result” with great specificity.

Proximate Causation
There is no clear standard for proximate causation.
• Asks whether a D’s actions are morally proximate to the result.
• Looks to determine who among the candidates of perpetrators should be held causally accountable for the harm.
• Jury is saying it is morally just to hold this person causally responsible for the harm.
• Do not apply if there is no actual causation.
o If you see a delay between the defendant’s actions and the ultimate harm, it is a red flag that you are dealing with a.
causation question!

Direct Causes
• Did any other “but-for” causes come into being after D’s voluntary act?
o If not, then D’s act can be said to be the direct cause.
• A voluntary act that is the direct cause of the social harm = a proximate cause since there are no other candidates for causal
responsibility.

Intervening Causes
• A “but for” cause of social harm that arises after D’s causal contribution. The intervening cause that occurs after D’s
voluntary act but before the resulting social harm for which the D is being prosecuted.
• Foreseeability: D is usually held liable for intervening causes that are foreseeable.
o State v. Preslar
§ Facts: D threatened his wife at home. V left the house on a frigid night and walked to ger father’s house.
Once outside the house, she decided not to enter and slept outside. She died.
• D was an actual cause of death but not a proximate cause. She reached apparent safety and chose
on her own not to go in.
o People v. Rideout (Mich. 2006) – Superseding Cause Example
§ Facts: Rideout, who admittedly caused a motor-vehicle collision while he was drunk, was convicted of
causing the death of a person who was actually later hit by a different vehicle. The other driver and his
passenger left their vehicle to check on Rideout (D), and once they determined he was okay the returned to
their car. While they were in the dark roadway checking out the condition of their vehicle, the passenger
was struck by yet another vehicle and killed.
o Response ® Does not break chain unless abnormal and unforeseeable.
o Coincidence ® Breaks chain if unforeseeable.
• Free, Deliberate, Informed Human Intervention: D is not the proximate cause of a result if a free, deliberate, and informed
act of another human being intervenes.
o Retributive theory that free will is a critical factor in the determination of moral responsibility. When someone acts
on their own free will, they should accept responsibility.
o Preslar: It was under V’s free will that she chose to sleep outside in the cold.
o Free will must come after the voluntary act by D.
• Intentional Misconduct: Usually relieves D of responsibility for harm.

HOMICIDE
Homicide Under the Common Law and the Model Penal Code

13
 Emma Jo Hirschy
Common Law Category Intended Killings Non-Intended Killings
Premeditation, deliberation, and willfulness Felony murder
First-Degree Murder
Purposely or knowingly
Intentional Depraved heart felony murder

Second-Degree Murder Purposely or knowingly Recklessly under circumstances manifesting

extreme indifference to the value of human
life
Heat of passion Heat of passion; Reckless culpable negligence
Manslaughter (Voluntary)
Extreme Emotional or Mental Disturbance EED or Recklessness
(EED)
Culpable Negligence / Mere Recklessness
Manslaughter (Involuntary)
Criminal Negligence

Model Penal Code § 210.1 – Criminal Homicide

(1) An individual is guilty of murder if they purposely, knowingly, or recklessly cause someone’s death under circumstances
manifesting extreme indifference to the value of human life.
(2) Criminal homicide is murder, manslaughter, or negligent homicide.

Intentional Murder
Common law murder is a killing of a human being by another human being with malice aforethought.
• Malice ® Kills a person with anyone of the following four mental states:
(1) Intention to kill a human being
(2) Intention to inflict grievous bodily injury on another
(3) Extremely reckless disregard for the value of human life (”depraved heart”)
(4) Intention to commit a felony during the commission or attempted commission of which a death accidentally occurs
(“felony murder”)
• Aforethought ® Common law described aforethought as premeditation of the murder.
• Test (Guthrie) ® There must be some evidence that the D considered & weighed his decision to kill in order for
state to establish premeditation under first-degree murder statute.
o Key facts to consider ® Planning activity, motive, preconceived design (Anderson)
• For both tests, ask whether the D was in a state of passion or whether a reasonable person should have
cooled off.
o If a reasonable person should have cooled off, then proceed with the regular murder charge.
o If a reasonable acted in a state of passion and did not have a cooling off period, then consider
manslaughter as the charge instead.

At common law, there were no degrees of murder, nor is there under the MPC. The Pennsylvania Rule is what created the distinction.
• If the statute has a distinction between first- and second-degree murder, then consider whether there was
premeditation.
• If there was premeditation ® First degree
• If there was not premeditation ® Second degree

Model Penal Code § 210.2 – Murder

(1) Except as provided in § 210.3(1)(b) [manslaughter], criminal homicide constitutes murder when:
a. It is committed purposely or knowingly; OR
b. It is committed recklessly under circumstances manifesting extreme indifference to human life…

14
 Emma Jo Hirschy
Proving Intent
Prosecution must prove beyond a reasonable doubt that the killer purposely or knowingly took another’s life.

Willful, Deliberate, Premeditated Formula

In states where statutes separate murder into degrees, a “willful, deliberate, premeditated” killing is first degree murder.
• Willful ® “Intentional”
• Premeditated ® “To thing about beforehand” (People v. Morrin, Mich.)
o Courts are divided on how much time must pass for premeditation to occur, however, “some appreciable time” may
be the preferred approach.
• Deliberate ® “To measure & evaluate the major facets of a choice or problem”
o Premeditation v. Deliberation: Premeditation looks at the quantity of time & deliberation looks at the quality of the
thinking process during that time.

State v. Gurthie (W.Va. 1995) – Intent to Kill in First Degree Murder Must Last for More Than a Minute
• Rule: Murder in the first degree consists of an intentional, deliberate, and premeditated killing, which means that the killing
occurs after a period of time for prior consideration.
o Sufficient amount of time… fully conscious of intent.
• Facts: Guthrie was convicted of first-degree murder and appealed the conviction based on the trial court’s instructions to the
jury.
o To allow the state to prove premeditation & deliberation by only showing intent came “into existence for the first
time at the time of such killing” completely eliminates the distinction between the two degrees of murder.

People v. Morrin (Michigan) – Established the rule for the distinction between premeditation & deliberation.
• Premeditation (quantity) + deliberation (quality)

Midgett v. State (Ark. 1987) – Intent to Abuse a Child is Not Sufficient Evidence to Show Premeditated Intent to Kill
• Rule: Evidence of intentional child abuse, which eventually resulted in the child’s death, is not sufficient by itself to show the
premeditated intent to kill necessary to sustain a conviction for murder in the first degree.
• Facts: A father who had been in the habit of physically abusing and neglecting his son, got drunk and beat him again
resulting in the child’s death. The father was found guilty of murder in the first degree by the trial court. Conviction was
modified to murder in the second degree.
o Court says the D intended not to kill his son, but to further abusing him.

State v. Forrest (N.C. 1987) – Mercy Killing, when it is Premeditated, is Still Murder in the First Degree.
• Rule: Killing someone to prevent his further suffering is still murder in the first degree, if it is willful, deliberate, and
premeditated.
• Facts: Forrest’s father was terminally ill and in the hospital with a do-not-resuscitate order. He killed his father by shooting
him, stating he did not want his father to suffer any longer. Conviction for first degree murder upheld.
o Court finds premeditation/deliberation because the son had thought about putting his father out of his misery
because he knew he was suffering & the fact that the dad did nothing to provoke the shooting.

Voluntary Manslaughter
Common Law – Voluntary Manslaughter
• An intentional, unjustified, inexcusable killing, which ordinarily is murder, constitutes manslaughter if it is committed in a
sudden heat of passion, as the result of adequate provocation. Usually a defense to premeditated murder.
• It is murder (see if statute specifies first v. second degree) UNLESS there is adequate provocation.
o Traditional adequate provocation (Girouard) ® Provocation which would cause a reasonable person to be in a
heightened state of passion & lose their self-control. Only a few circumstances can serve as legally adequate
provocation:
§ Majority view: Words can constitute adequate provocation only if they are accompanied by conduct
indicating a present intention/ability to cause the D bodily harm (Girouard).

15
 Emma Jo Hirschy
§ Common law categories: Sexual infidelity (today only if discovered in the act of intercourse), mutual
combat, assault & battery, injury to one of D’s relatives, resistance to an illegal arrest.
§ A killing is not reduced to voluntary manslaughter where the provocation causes the defendant to
intentionally strike out at a third person.
o Expanded adequate provocation (Maher)
§ Minority view: Reasonable provocation is anything the natural tendency of which would be to produce
such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before
them.
• Courts that take this approach may still rule some things out, and words still may not be enough.
o If there was adequate provocation, it can be reduced to manslaughter.
§ Words alone do NOT constitute adequate provocation.

Common Law Provocation – Four Requirements

(1) Adequate provocation
a. “Must inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than
reason.” – Girouard
(2) Sudden provocation
a. Killing must occur in sudden heat of passion
b. Early cases required D to have acted almost immediately
c. Modern courts leave issue to jury to determine when a reasonable person would have cooled down by time of
homicide (Maher)
(3) Heat of passion (no cooling off period)
a. Must kill while in the state of passion, not allowed to cool down. Any over-wrought mental state may suffice; anger,
fear, jealousy, or deep depression.
(4) Causal connection

Girouard v. State (Md. 1991) – Words Alone are Not Enough Provocation to Reduce Murder to Manslaughter
• Rule: Words alone are not adequate provocation to provoke a reasonable person to kill in the heat of passion. Thus, they are
not enough to mitigate murder to manslaughter.
• Facts: Husband killed his wife by stabbing her 19 times after she said horrible things, threatened to leave him, and told him
he would be court marshaled.

Model Penal Code § 210.3 – Manslaughter = Extreme Emotional Disturbance

• (1) Criminal homicide constitutes manslaughter when:
o (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.
• Doesn’t have to be a single provocative event. The MPC says second-degree murder can be reduced to manslaughter for
people who had significant mental trauma over a period of time.
o Words can suffice. Also no provocation is necessary if jury decides there is a reasonable explanation or excuse for
actor’s EED.
o No cooling off requirement.
• First requirement is subjective while the second requirement is objective

Model Penal Code § 210.3 – Manslaughter

• (1) Criminal homicide constitutes manslaughter when:
o (a) It is committed recklessly.

People v. Casassa (N.Y. 1980) – MPC Broadens Application of Manslaughter Defense, but Only So Far.

16
 Emma Jo Hirschy
• Rule: The test of whether the extreme emotional disturbance of the killer had a reasonable explanation or excuse depends on
a reasonable evaluation of the external circumstances that the killer believed he was facing and not on the killer’s personal
point of view.
• Facts: After dating Casassa, the victim told him that she was not interested. He obsessed about her, stalked her, and killed
her. His only defense is that he was acting under extreme disturbance caused by her rejection. Conviction affirmed.
o Court says that the action may not necessarily be an immediate result; may result from significant mental trauma
that has affected D’s mind for a long period of time.

Unintentional Murder
Under the common law, murder is the unlawful killing of a human being with malice aforethought.
Malice ® Kills a person with anyone of the following four mental states:
(1) Intention to kill a human being
(2) Intention to inflict grievous bodily injury on another
(3) Extremely reckless disregard for the value of human life (”depraved heart”)
(4) Intention to commit a felony during the commission or attempted commission of which a death accidentally occurs (“felony
murder”)
Malice may be express or implied. When it is implied, it falls under the unintentional murder analysis listed below.
• Implied ® Requires a D’s awareness of an unjustified risk of death to another and utterly disregarding it.
o If it is a justified risk (i.e., 75% chance that a surgery to save life is unsuccessful vs. 100% chance of death absent
surgery), then it is not a depraved heart murder.
• People v. Phillips (Cal. 1966): “Malice is implied when the killing is proximately caused by an act, the natural consequences
of which are dangerous to life, which act was deliberately performed by a person who knows that their conduct endangers the
life of another and who acts with conscious disregard for life.

Depraved Heart Murder

Acts of a life-endangering nature so reckless that they manifest a wanton indifference to human life.
• Defendant was aware of the unjustifiably high risk to human life of her actions but chose to proceed anyway.
o (1) Conduct creates unjustifiable risk of death/serious injury
o (2) Risk is extremely high
o (3) D was subjectively aware of #1 & #2 (Knoller)
• Only a common law offense.
• Most jurisdictions treat depraved heart murder, no matter how heinous, as second-degree murder.
• DO NOT mention the “reasonable person” under this standard.

People v. Knoller (Cal. 2007) – Malice for Second Degree Murder Requires Defendant’s Awareness of Risk of Death to Another
• Facts: A woman’s dog attacked and killed a neighbor, and the dog owner was charged with and convicted of second-degree
murder. She appealed, arguing that the state did not prove the malice element and that she was entitled to a new trial. Court
agreed and reversed.
o Not first-degree murder (no premeditation/deliberation) & not voluntary manslaughter (no intent).
o Second-degree murder?
§ Yes. There was implied malice because the D was aware of the risk of death because of their dog’s
dangerous propensities and consciously chose to disregard such risk.
o Objective Test ® Whether there was a high probability of death
o Subjective Test ® Whether the D acted with an antisocial motive or with wanton disregard for human life.

Involuntary Manslaughter
A person who kills another person in a criminally negligent manner is guilty of involuntary manslaughter. If the D was not aware of
the risks but should have, then it is involuntary manslaughter NOT depraved heart murder.

Common Law – Involuntary Manslaughter

17
 Emma Jo Hirschy
• Either merely reckless (but not the result of depraved heart) or criminally negligent killing.
• Negligent
o Grave danger to others must have been apparent and defendant must have chosen to run the risk rather than alter his
conduct so as to avoid the act or omission which caused the harm.
o Depends on if an ordinary man under the same circumstances would have realized the gravity of the danger.

Model Penal Code § 210.4 – Negligent Homicide

• (1) Criminal homicide constitutes negligent homicide when it is committed negligently.
• Depends on whether D was aware of the unwarranted risk he was creating.
• “A gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

State v. Williams (Wash. 1971) –Manslaughter for Not Recognizing Severity of Child’s Illness to Save His Life
• Rule: A showing of ordinary negligence may be sufficient to support a conviction for manslaughter.
• Facts: The Williams, parents of a 17-month-old child with an abscessed tooth, did not supply necessary medical care. The
child died.
o Their conduct constituted negligence since the court found they were sufficiently put on notice of the baby’s
condition.
§ If they had been aware of the life-threatening condition (and knew they were taking a
substantial/unjustifiable risk) then their acts would have constituted depraved heart murder.

Felony Murder

Common Law – Felony Murder Rule

• A person is guilty of murder if she kills another person, even accidentally, during the commission or attempted commission
of any felony.
o This is a strict liability offense.
o Elevates what would usually be negligent homicide or manslaughter to first-degree murder.
• Requires:
o Predicate felony; AND
o Death resulting from commission thereof.
o Commission of felony is evidence of malice.

Model Penal Code 2.10.2(1)(b) – Felony Murder

• Commission of enumerated felonies raises presumption of extreme indifference to the value of human life.
• Recklessness & indifference are presumed when the actor is engaged or is an accomplice in the commission of, or an attempt
to commit, or fight after committing or attempting to commit:
o Robbery
o Rape or deviate sexual intercourse by force/threat of force
o Arson
o Burglary
o Kidnapping
o Felonious escape

18
 Emma Jo Hirschy

People v. Fuller (Cal. App. Ct. 1978) – Tire Thieves Guilty of 1st Degree Murder After Car Chase Kills Other Driver
• Rule: The felony murder rule imposes strict liability for deaths caused by the commission of one of the enumerated felonies
which include burglary, even when the death is accidental.
• Facts: Two guys were attempting to escape a police officer who had observed them stealing tires got into a high speed chase
which resulted in an accident that killed the driver of another car.
o Eisenberg says they could have also charged him with depraved heart murder.
§ Prosecutors want to convict on the highest charge possible. Prosecuting the D under the FM rule allows
them to seek conviction for first degree murder.
§ FM did not require the prosecution to prove malice, so it would be an easier standard to prove.

Criticisms
• “Erodes the relationship between criminal liability and moral culpability”
• Retributive – When applied to accident homicides it results in a disproportional punishment. The intent to commit the felony
is transferred to the homicide.
o Pick pocket example where one victim has a heart attack & dies and the other does not. Unlucky and unfair

Elements:
• Inherently dangerous
• Death occurred during commission of felony or a felonious escape
• Homicide occurs in furtherance of felony
• Felony is independent and does not merge.

19
 Emma Jo Hirschy

Limiting Doctrines
In Furtherance of a Felony
Some courts provide that the felony-murder rule does not apply if the person who commits the homicide is a non-felon resisting the
felony.
• Res Gestae Limitation ® There must be a causal connection between the felony and the death, not sufficient that a death
occurred during the temporal range of the felony if it was not caused by felonious act
o Felony murder may still apply even if the felony is over, but a death has occurred right after the commission but is
still a result, such as fleeing from the crime.

Use common law cases + MPC as persuasive authority to argue that certain factors are covered (limited to dangerous, everything, etc.)
• Types of felonies:
o Any act known to be dangerous to life & likely in itself to cause death, done for the purpose of committing a felony,
should be murder.
• In furtherance of the felony – Applies to situation where:
o The lethal act occurs after commission of the felony (if the act is necessary to complete the crime).
o The lethal act is arguably unrelated to the felony (if the murder helps ensure the success of the ongoing felony; can
include the acts of co-felons).
o The lethal act is committed by someone resisting the felony.
§ Agency theory: Focuses on the identity of the killer.
• Felons / co-felons are only responsible for homicides committed in furtherance of the felony, by a
person acting as the felon’s agent.
• Homicides committed by police, the victim or a bystander do not fall within the rule.
• They are considered antagonists; thus, they are not committing it in furtherance of the felony.
• Only attaches when the person who directly caused the death is one of the felons.
§ Proximate cause theory: Focuses on foreseeability (if murder was a foreseeable risk in committing felony).
• Felon may be held responsible for a homicide perpetrated by a non-felon if the felon proximately
caused the shooting of the non-felon.
• Attaches if the felon’s acts are the proximate cause of death, even if that death is directly caused
by a non-felon.

State v. Sophophone (Kan. 2001) – Police Officer’s Lawful Act of Killing Co-Felon Does Not Satisfy Felony Murder Rule
• Rule: A defendant should not be held responsible under the felony murder doctrine for the death of a co-felon when the
killing was a lawful act of a law enforcement officer acting in the line of duty.
• Facts: The defendant’s co-burglar was shot and killed by a police officer while fleeing from the scene of a burglary.
• When does the killing need to occur for it to be felony murder?
o Ask: Was there a break in circumstances? Was the underlying felony a proximate cause of the homicide?

Inherently Dangerous Felony Requirement

A person whose commission of a felony results in someone’s death will only be guilty of felony murder if the underlying felony is
inherently dangerous.
• Society considers this type of conduct as inherently dangerous.

People v. Howard (Cal. 2005) – An Accidental Death Occurring During a Police Chase is Not a Felony
• Rule: The second-degree felony murder rule provides that, although malice is ordinarily an element of a murder conviction,
murder can be committed without malice if the killing occurs during the commission of an inherently dangerous felony.
o In determining whether a felony is inherently dangerous [under the second-degree felony murder rule], the court
looks to the elements of the felony in the abstract, ‘not the “particular” facts of the case,’ i.e., not to the D’s
specific conduct.
§ Is the felony “by its very nature [unable to] be committed without creating a substantial risk that someone
will be killed?” If yes, then FM applies.

20
 Emma Jo Hirschy
• Facts: Howard was convicted of second-degree felony murder after killing the occupant of another vehicle while attempting
to flee from police in a stolen vehicle.

Independent Felony/Merger
Some courts require that the felony serve as the predicate for the felony-murder rule to be independent of the homicide. A felony that
is not independent merges with the homicide and FM does not apply.
• Prosecutor cannot prove murder just by proving that the underlying felony occurred.

People v. Ireland (Cal. 1969) – Felony Murder Rule not Available When Predicate Felonies that are Integral Parts of Homicide
• Facts: D shot and killed V and the prosecutor sought FM on the felony of assault with a deadly weapon. Court does not allow
use of FM rule.
o The “elements of the assault were necessary elements of the homicide.” The felony burglary based on intent to
commit assault was included in fact in the homicide.
• To allow FM in this case would preclude the jury from considering the issue of malice aforethought in all homicide cases that
resulted from a felonious assault.
• Rule: FM rule is inapplicable to felonies that are an integral part of and included in fact within the homicide.
o Ask: Is the predicate felony an integral part of the homicide?

People v. Smith (Cal. 1984) – Felony Murder Could Not Be Charged in Child Abuse Case Resulting in Death
• Rule: A second degree felony murder conviction cannot stand when it is based on a felony that is an integral part of the
homicide and the evidence produced by the prosecution shows it to be an offense included in fact within the homicide.
• Facts: An abusive mother convicted of felony murder in the death of her child appealed from her conviction, arguing that the
felony murder rule did not apply to her case. Court agreed and reversed.

Examples Where the Felony Murder Rule was Inapplicable

• People v. Sears (Cal. 1970)
o D entered a cottage with the intent to assault his estranged wife. In the course of the assault, the daughter intervened
and was killed by the D. Court declined to use FM rule.
• People v. Burton (Cal. 1971)
o Rule: Even if the predicate felony is an integral part of the homicide and the evidence includes the necessary
elements of the homicide, there can still be FM if there was an independent felonious purpose.
§ This case broadened Ireland.
o Facts: D argued that the FM rule did not apply because an armed robbery necessarily includes an assault with a
deadly weapon.
o Did the homicide result from conduct for an independent felonious purpose as opposed to a single course of conduct
with a single purpose?
§ In cases like Ireland, the purpose of the conduct was the very assault which resulted in death.
• In the case of armed robbery, there is an independent felonious purpose, namely, to acquire money
or property belonging to another.
• People v. Wilson (Cal. 1969)
o Facts: D forcibly entered his estranged wife’s apartment carrying a shotgun. Once inside, he proceeded to break into
the bathroom where he killed his wife.
§ Where a person enters a building with the intent to assault his victim with a deadly weapon, he is not
deterred by the FM rule. That doctrine can serve its purpose only when applied to a felony independent of
the homicide.
o Eisenberg: You cannot have murder w/o assault.

Keeping Felony Murder Alive

A felony is independent even if it is assaultive if it involves an “independent felonious purpose.”
• Armed robbery has an independent felonious purpose of taking property from a victim. Rape is the sexual intercourse
with non-consenting victim (People v. Burton).

21
 Emma Jo Hirschy

RAPE
Eisenberg will not cold call during this unit and this topic will not specifically be tested on. You may use it in a policy question on
the final exam.
**Be careful with apply these cases. Jurisdictions all interpret their rape laws differently.
Actual & Constructive Force
Common Law ® “Carnal knowledge of a woman forcibly and against her will” (William Blackstone, 1769).
• Force is separate from non-consent.
• Actual or constructive force
• Requirement of resistance
• “Against her will”
• Non-consent is not enough.

Common Law – How Much Force?

At common law prosecutor had to prove that the male used or threatened substantial force upon the female in order for a prosecution
to succeed.

Common Law – Constructive Force

Modern statutes almost invariably provide that nonconsensual intercourse obtained by threat of force constitutes forcible rape.

Common Law – Resistance Rule

“Force is an essential element of the crime & to justify conviction, the evidence must warrant a conclusion either that V resisted, and
her resistance was overcome by force or that she was prevented from resisting by threats to her safety” (Hazel v. State).

Criticisms
• Forces females to escalate the danger to herself
• Assumes verbal resistance is not enough
• Ignores the pressure of the situation; female may freeze up in the heat of the moment out of fear

State v. Alston (N.C. 1984) – General Fear of Force Not Sufficient for a Conviction of Rape (Common Law)
• Rule: Absent evidence that the D used force or threats to overcome the will of the victim to resist sexual intercourse alleged
to have been rape, such general fear was not sufficient to show that the D used the force required to support a conviction of
rape.
• Facts: An ex-boyfriend is convicted of the second rape of his ex-girlfriend, after having intercourse with her at his friend’s
house, despite not using force on the day of the alleged rape.
• Prosecution needed to prove:
o Consent: Evidence of statements or actions by V which were clearly communicated to D and which expressly and
unequivocally indicated V’s withdrawal of any prior consent and lack of consent to the particular act of intercourse
o Actual or Constructive Force: Actual physical force or threats of serious bodily injury.
• Hypo: Had D threatened the day before and said that if she didn’t have sex with him, he’d kill her, but when he saw her the
following day he was outwardly nice and pleasant.
o No, there’s no actual force and the constructive force is not sufficient due to time framing.

State v. Rusk (MD 1979) – Force is a Necessary Element of Traditional Rape (Common Law)
• Rule: Actual force or threat of force is a necessary element of rape.
• Facts: A man was convicted of second-degree rape, after meeting a twenty-one-year-old mother of two at a bar, brought her
up to his house, and had sexual intercourse with her, despite the lack of force. She was crying, had her keys taken, and asked
“If I do what you want, will you let me go?”
o Court originally held that implied force was not enough. On appeal, state supreme court disagreed. See below.

State v. Rusk (MD 1981) – Implied Threat of Force is Sufficient for a Conviction of Rape (Common Law)
• Rule: An implied threat is sufficient to satisfy the element of force for rape.
22
 Emma Jo Hirschy
o Reversed 1979.
o If a victim is in reasonable apprehension of bodily harm, the victim need not resist, despite the lack of an explicit
threat.

There is a marital rape exception.

Moving Away from Force

• Many states have begun to reshape forcible rape law by requiring far less proof of force, at least in cases involving atypical
facts.

Changing Resistance Requirement

Some states have abolished the resistance requirement outright.
• “Consensual sex crimes” were not unusual.
• Judges used resistance requirement to classify illegal sex
o Resistance ® Rape
o No resistance ® Adultery/fornication
• Women’s resistance as defense (involuntary act argument)
• Most states still retain the requirement in forcible rape prosecutions, but the extent of resistance required has been greatly
reduced: resistance “to the utmost” is not required now, only reasonable resistance.

Model Penal Code § 213 – Rape

(1) A male who has sexual intercourse with a. female not his wife if 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.

Model Penal Code is absolute. No state adopts the Model Penal Code’s interpretation. Eisenberg hopes to help reform it during her
time with the American Law Institute.

Non-Consent & Silence

Mens Rea
• Rape is a “general-intent” offense.
• There are often two conflicting versions of events
o Victim ® No consent
o D ® Victim actually consented or D reasonably believed that victim consented (mistake of fact).
§ Most jurisdictions provide that a person is not guilty of rape if, at the time of intercourse, he entertained a
genuine and reasonable belief that the female voluntarily consented to the intercourse
§ Mistake must be an honest & reasonable belief that victim consented.
§ Negates MR for rape.

What is reasonable?
• Reasonable to say no but mean, yes? Reasonable to hear no but interpret, yes? Non-verbal cues? Circumstances of the
parties?
• Culture & Mistaken Beliefs Hypothetical (pg. 485)
o If the man was unaware of the victim’s genuine rejection of their cultural practice prior to the ritual and viewed her
resistance as a part of their normal tradition, it may be considered a mistake of fact. However, if he learned prior to
carrying out the ritual that the victim truly revoked consent for the ritual, he would not be able to argue mistake of
fact.
• “No means no”

23
 Emma Jo Hirschy
o For perpetrator to be guilty, victim must affirmatively communicate non-consent.
o Silence = consent (unless threat/force)
o “Yes, means yes.”

Abandoning the Force Requirement Altogether

• NJ Supreme Court held that the force inherently involved in the sexual act itself is sufficient evidence of “force” to permit a
forcible rape conviction.
o Rape then becomes solely a question of consent in these jurisdictions.
o “Forcible rape is proved upon evidence of sexual intercourse, unless the complainant, by words or conduct,
reasonably appeared to give permission for the intercourse.”
o “Yes means yes” – Absence of YES constitutes forcible rape.
§ Consent: Must affirmatively indicate consent.
o “No means no” (original rule) – Victim usually had to say no in order to convict D.

Commonwealth v. Berkowitz (PN 1992) – Rape Conviction is Reversed Despite the Victim Repeatedly Saying “No”
• Rule: Verbal resistance alone is not sufficient evidence of rape. Physical resistance is still required unless the perpetrator uses
or threatens the use of force.
o While verbal protestations may be relevant to prove the intercourse was against the victim’s will, it is not dispositive
or sufficient evidence of “forcible compulsion.” Consider:
§ Ages of the victim and the accused
§ Mental & physical conditions of the victim and the accused
§ Atmosphere and physical setting in which the incident was alleged to have taken place
§ Extent to which the accused may have been in a position of authority
§ Domination of control over the victim
§ Whether the victim was under duress
• Facts: A college student was convicted for raping his friend in his dorm room, after the friend voluntarily entered his dorm
room and repeatedly said “no” to his sexual advances, although she did not physically resist.

In re M.T.S. (N.J.) – Resistance is Not Required to Prove Rape

• Rule: Any act of sexual penetration without consent constitutes sexual assault. The very act of penetration without consent is
the physical force necessary to constitute sexual assault.
o A person commits forcible rape if they have intercourse without securing consent, either by words or actions.
o Amount of force required amounts to as much force as needed to complete the act of sexual penetration.
o Exemplifies a transition in rape law.
• Facts: A seventeen-year-old was convicted of the rape of a fifteen-year-old who was asleep at the time of penetration.

Rape Shield Laws

In General
• Generally denies a defendant in a rape trial the opportunity to cross-examine the complainant, or to offer extrinsic evidence,
concerning their prior sexual conduct or reputation, absent good cause.
• While rape-shield laws aim to protect a victim’s interest, they may also increase the risk that an accused person might be
denied the opportunity to introduce evidence that would demonstrate their innocence.
o May also conflict with a defendant’s 6th Amendment right to confront and cross-examine their accusers.

State v. Herndon (Wis. 1988) – Rape-Shield Laws and 6th Amendment Rights Weighed to Determine Admissibility of Evidence
• Rule: The interest of rape-shield laws (which prohibit the cross-examination of rape victims) and a defendant’s 6th
Amendment rights must be weighed in order to determine whether certain evidence should be admissible.
o Illustrates that the 6th Amendment is not absolute.

People v. Wilhelm (Mich. Ct. App. 1991) – Public, Provocative Displays May or May Not be Admissible in Rape Trials
• Rule: Evidence of a victim’s sexual conduct with a third party is irrelevant to the issue of whether she consented to sexual
intercourse with the defendant.

24
 Emma Jo Hirschy
• Facts: After being convicted of third-degree criminal sexual conduct, the defendant appealed, arguing that evidence of the
victim’s prior provocative behavior should have been admitted on the issue of consent.
o He was upset because he could not enter evidence that the victim had exposed her breasts to two men who were
sitting at her table in a bar and that she permitted one of them to fondle her breasts prior to the alleged rape.

State v. Colbath (N.H. 1988) – Compared to Wilhelm

• Facts: When D and victim were in a bar, the victim made sexually provocative remarks to the D and permitted him to feel her
breast and butt and rubbed his penis. The two went to D’s trailer where they had sex. D’s significant other arrived and
assaulted the women, who defended her behavior by contending that she had been raped.
• Holding: D’s right of confrontation required that the D be allowed to demonstrate that the probative value of statutorily
inadmissible evidence in the context of his particular case outweighed its prejudicial value

Lewis v. Wilkinson (6th Cir. 2002) – Admissibility of a Victim’s Diary

• “I’m sick of myself for giving in to them. I’m not a nympho like all those guys think. I’m just not strong enough to say no to
them. I’m tired of being a whore. This is where it ends.”
o May be probative because:
§ Shows she has motive to stop men from thinking they can take advantage of women.
§ Shows she may have consented.
o May be prejudicial because:
§ Does not directly reference the defendant or the situation at issue.
§ Makes her subjective thoughts about herself dispositive as to whether there was consent.
• Court agrees the diary is more probative than prejudicial.

Statutory Rape
Strict Liability Offense
Evolution of Rape Laws
Common Law Modern Reform
• Gender-specific • Majority of jurisdictions ® gender neutral
• Age as “sentence enhancer” • Some states have abolished
• Two common defenses • Some states impose liability only is 2–5-year age gap
o Reasonable mistake as to V’s age and victim is under age of consent
o V was promiscuous • Abolish defense of promiscuity.

Garnett v. State (M.D. 1993) – Mentally Disabled Male Convicted of 2nd Degree Rape Despite Lack of Criminal Intent
• Rule: Criminal intent or mens rea is not an element in statutory rape.
• Facts: A mentally disabled twenty-year-old man was convicted of statutory rape, after engaging in sexual relations with a
thirteen-year-old girl, despite the lack of criminal intent.

INCHOATE CRIMES
Attempt Conspiracy Solicitation

Attempt
Attempt occurs when a person, with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the
perpetration of, rather than the more preparation for, the target offense. Inchoate means incomplete.
• Complete Attempt: Actor does every act planned but is unsuccessful in producing the intended result (shoots and misses).
• Incomplete Attempt: Actor does some of the acts that she set out to do, but then desists or is prevented from continuing by
an extraneous factor (intervention of police).
25
 Emma Jo Hirschy
• Merger: A criminal attempt merges into the target offense if it is successfully completed.
o Cannot be convicted of both the attempt to commit a crime and the completed crime.
o Attempt = unsuccessful crimes. If successful, charge the crime itself.
• Purpose: Function of the crime of attempt is to provide a basis for law enforcement officers to intervene before an individual
can commit a completed offense.
• Factual impossibility is not a defense to attempt liability under common law. Allowed by Model Penal Code.
o If circumstances were as D believed them to be, and he had completed the act, would it have been a crime? If so, it
was attempted.
• Common Law Attempt = Specific Intent Crime
o This is a bar exam question!
• Review Florida exception ® Amlotte v. State of Florida (FL Supreme Court, 1984)
o Gentry v. State (FL 1983)
• Attempted statutory rape?
o What if D honestly believed victim was 18?
o Can D intend to commit a crime when the crime doesn’t require any mens rea with regard to victim’s age?
§ MPC: Yes.
• D acted “with the kind of culpability required for the commission of the [underlying] crime.”
o D intended sex.
o D doesn’t need to have culpability with regard to victim’s age.
o More popular than attempted felony murder.

Mens Rea
Dual Intent
• Mental state required for a criminal attempt is the “intent to commit some other crime.”
o Actor must first intentionally commit the acts that constitute the actus reus of an attempt, he must intentionally
perform an act that brings him in a dangerous proximity to commission of the target crime.
o Actor must commit the actus reus of an attempt with the specific intent to commit the target offense (deemed the
mens rea issue).
• ASK:
o Did D act with the same mens rea required by the crime attempted?
o Did D also intend to commit the act & to cause the result?
o Did D intend the same circumstances as required by the crime attempted?

Model Penal Code – Did D have:

• The purpose to do all the conduct elements of the target offense
• The purpose to cause the result (or believe they would cause the result) of the target offense
• The same mens rea toward the circumstance elements as required by the target offense

Hypotheticals
• D throws gas on victim & throws a match on victim to prove they were immune to fire.
o Not attempted murder. There was a lack of specific intent to kill since the D truly believed that the victim would not
be harmed by the fire due to immunity.
o Did not intend to cause the result.
• Throws gas on victim but cannot find the match to light it on fire.
o Lacks information. If they are actually intending to kill, it would be attempted under the MPC (not common law)
because it is a substantial step.
• Attempts to smuggle coke but the powder was not actually coke.
o Under the MPC (§ 5.01), this would be an attempt because D believed it was coke.
o Factual liability is not a defense to attempt liability.

People v. Gentry (Ill. Ct. App. 1987) – Specific Intent to Kill Must be Shown to Prove Attempted Murder
26
 Emma Jo Hirschy
• Rule: Only the specific intent to kill satisfies the intent element of the crime of attempted murder.
o Not sufficient = intent to do bodily harm, or knowledge of the consequences of D’s acts may result in death or great
bodily harm.
• Facts: Gentry was convicted of attempted murder after spilling gasoline on his girlfriend during a fight which then ignited as
she passed the stove. Convicted reversed and remanded for a new trial.

Bruce v. State (M.D. 1989) – Most States Do Not Recognize the Crime of Attempted Felony Murder (Except Florida)
• Rule: Attempted felony murder is not a crime in Maryland (or most states for that matter).
o Attempt requires an intent but Felony Murder is an unintentional murder.
• Facts: Bruce was convicted of attempted felony murder, as well as other charges, for shooting a storekeeper he was
attempting to rob at gunpoint. The victim was hospitalized for five weeks from a gunshot wound to his stomach. He did not
die.

Actus Reus
Common Law Actus Reus
• Mere preparation = innocent
• Tests
o Physical Proximity: Physically proximate to completed crime
o Dangerous Proximity: Crime is near completion
o Unequivocal Conduct: Inevitable conclusion when movie suddenly stops

United States v. Mandujano (5th Cir. 1974) – Mere Preparation is Not Enough to Constitute “Attempt”
• Rule: For the crime of attempt, preparation alone is not enough. There must be some appreciable fragment of the crime
committed.
o It must be in such progress that it will be consummated unless interrupted by circumstances independent of the will
of the attempter, and the act must not be equivocal in nature.

Dangerous Proximity Test

“Dangerous proximity to success.” Standard is not satisfied unless the conduct “is so near the result that the danger of success is very
great.”
• Court considers three factors:
o Nearness of the danger
o Substantiality of the harm
o Degree of societal apprehension
• Commonwealth v. Peaslee: Indictment for attempt to burn a building. D arranged combustibles in building and offered to pay
someone to do it. On the way to the building D changed his mind. Appellate court says no attempt

Commonwealth v. Peaslee (Mass. 1901) – The Defendant Must Have His Hand in the Final Act to be Guilty of Attempt
• Rule: Collection and preparation of materials in a room for the purpose of setting fire to them, accompanied with a.
solicitation of another to set the fire, is near enough to the accomplishment of the substantive offense to be punishable.
o If steps are still necessary to complete a crime, there remains the chance that the perpetrator may change their mind.
§ An overt act coupled with an intent to commit a crime isn’t normally punishable if further action is
necessary.
o Preparations to commit a crime ordinarily ≠ attempt.
§ If preparations come close enough to accomplishing the crime and the perpetrator’s intent to complete the
crime is clear, then the act may = attempt.
• Facts: Peaslee concocted a plan to burn a building and all its contents, but he changed his mind before the plan was
accomplished. Case was dismissed.
o The mere collection & preparation of flammable materials without any present intent to set the fire/complete the
crime was too remote to justify a conviction for attempt.

People v. Rizzo (N.Y. App. Ct. 1927) - Acts Constituting Attempt Must Come Very Near to the Accomplishment of the Crime
27
 Emma Jo Hirschy
• Rule: To constitute an attempt, a D must act in furtherance of his intent. The acts must be sufficiently proximate to the
completed offense, as opposed to being remote from it.
o To be proximate, the acts must be dangerously near the intended crime’s accomplishment.
o In all reasonable probability, the crime would have occurred but for the intervention of law enforcement or some
other source preventing it.
• Facts: Rizzo and three others planned and looked for a man to rob a payroll from, but they were unable to find him before
being arrested.
o No attempt to rob him could have occurred, at least until the intended victim came into sight.
o Such an opportunity never presented itself.

Physical Proximity Test

An act “must go so far that it would result, or apparently result in the actual commission of the crime it was designed to effect, if not
extrinsically hindered or frustrated by extraneous circumstances.”
• Actor’s conduct must approach sufficiently near to the completed offense to “stand either as the first or some subsequent step
in a direct movement toward the commission of the offense”
o People v. Rizzo: D’s were looking for a man who was supposed to withdraw money from a bank. They circled the
local banks for hours and never found him. Cops arrested them for attempt to commit robbery. Court ruled they were
not dangerously close to completion.
§ D’s lacked the opportunity to complete the crime since the V was missing.

Unequivocally Test
• A person is not guilty of a criminal attempt until her conduct ceases to be equivocal – her conduct, standing alone,
demonstrates her criminal intent
o Movie screen test – If movie cut off right after the last act, could you say unequivocally that D was going to commit
the act?

People v. Miller (Cal. 1935) – Direct Act in Execution of the Criminal Design Required to Prove Attempt
• Rule: the prosecution must show a specific intent to commit the crime and a direct but ineffectual act done toward its
commission.
o Need to complete some appreciable portion of the crime and it must be in progress such that the crime would be
completed if not interrupted.
o If no one can say for sure what their intent is and their actions can’t be said to have preceded past preparation, then
their actions are equivocal.
• Facts: Miller was convicted of attempted murder for threatening to kill Jeans and then later approaching him with a loaded
rifle.
o D’s acts were equivocal, and his intent was unclear.
o No one could say with certainty what D intended to do. Maybe he wanted to carry out his plan or maybe he wanted
to use it to scare the man.
o Since he did not actually start to commit the crime, it was mere preparation at most. Thus, it was not an attempt.

Model Penal Code – MPC §5.01(1)(c) – Substantial Step

A person is guilty of an attempt to commit a crime if, acting with kind of culpability otherwise required for commission of the crime,
he:
a) COMPLETED/CONDUCT ® Purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be; or
a. E.g., driving an automobile under the influence of alcohol
b) COMPLETED/RESULT ® 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
a. E.g., murder
c) INCOMPLETE ® Purposely does or omits to do anything which, under the circumstances as he believes them to be, is a
substantial step in a course of conduct planned to culminate in his commission of the crime.

28
 Emma Jo Hirschy
* Requires a substantial step and it must be strongly corroborative of D’s criminal purpose.

State v. Reeves (1996) – Jury May Find an Actor has Taken Substantial Step Toward Commission of a Crime when the Actor
Possesses Required Materials Near the Scene of the Crime & the Course of Action Corroborates the
Criminal Purpose
• Rule: When an actor possess materials to be used in the commission of a crime, at or near the scene of the crime, and where
the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not
required, to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly
corroborative of the actor’s overall purpose.
• Facts: Reeves and a friend devised and tried to carry out a plan to kill their homeroom teacher and steal her car. She was
caught with the rat poison in her purse.
o D had no lawful purpose for bringing poison to school.
o The action was strongly corroborative of their overall criminal purpose.

Abandonment
• Not recognized by common law.
• D must voluntarily stop without influence of intervening, extraneous causes.
o Only applies when target offense has a result or circumstance as a material element.
o Ask: Did D commit an attempt before he abandoned the crime?
§ If yes, abandonment is irrelevant
o Hypo: Inmate takes steps to break out, packs bag, climbs fence and cuts out but decides to stop.
§ Under MPC, yes.
§ Retributivists say that when someone abandons the attempt, they are not dangerous, we want to encourage
D’s to stop. If they are convicted even after stopping, they may just decide to continue with the attempt

Conspiracy
“A partnership in criminal purposes,” a mutual agreement or understanding, expressed or implied, between two or more persons to
commit a criminal act or to accomplish a legal act by unlawful means.
• The agreement itself is criminal.
o “Conspiracy is an act, not a group.”
• NO MERGER.

Comparison of Conspiracy Under the Common Law and the Model Penal Code
Common Law Model Penal Code
No overt act required historically (modern common law Overt act required except for first- and second-degree felonies
jurisdictions typically require an overt act)
Does NOT merge with target offense Does NOT merge with target offense.

Specific intent required for all material elements “Purpose” required for conduct and result elements; unclear if
“purpose” required for circumstance elements
Pinkerton rule adopted Pinkerton rule rejected; accomplice liability required
Bilateral requirement that both conspirators must agree Agreement can be unilateral
No renunciation (no abandonment) Renunciation permitted
Withdrawal permitted Withdrawal permitted

People v. Carter (Mich. 1982) – Defining Conspiracy

• Complete upon formation of the agreement.
• Unnecessary to establish any overt act in furtherance of the conspiracy as a component of the crime.
29
 Emma Jo Hirschy
o Michigan is the only state that does not require an overt act!!!
• Twofold specific intent required for conviction:
o Intent to combine with others
o Intent to accomplish the illegal objective

Common Law – Merger

• Common law conspiracy does not merge into the attempted or completed offense that is the object of the agreement. D may
be convicted & punished for both conspiracy and the substantive crime.
• Special Dangerousness Rationale of Conspiracy ® The extra danger inherent in conspiracy relationships is thought to
justify punishment, even if its criminal object is completed and can be punished on its own.
o More dangerous due to combined resources, strength, and expertise.
o Less likely to abandon their criminal purpose if they know others are involved.
• Guilt or innocence does not depend upon the accomplishment of the goals
• NO MERGER.

People v. Carter (Mich. 1982) – Conspiracy is a Crime Separate and Distinct from the Underlying Substantive Crime
• Rule: A defendant may be convicted and punished for both the conspiracy and the substantive crime.

Model Penal Code

• Mens Rea ® ALL conspiracies require intent (purpose).
• Actus Rea ® Conspiracy does not occur unless at least one party to the agreement commits an overt act in furtherance of it.
o It need not be a substantial step toward the commission of the crime. It is a much lower standard.
o Act of one co-conspirator implicates all co-conspirators.
o Can be brought in jurisdiction where agreement was made or where overt act was made.
• NO MERGER.
• Grading § 5.05(1): Conspiracy to commit any offense other than a felony of the first degree is graded the same as the crime
that is the object of the conspiracy.

Mens Rea

Common Law Intent Requirements

• Minor Crimes (CL) ® Knowledge + Intent
• Major Crimes (CL) ® Only knowledge

People v. Lauria (Cal. App. Ct. 1967) – Supplying Product or Service to Another Knowing it will be Used in a Crime May be
Convicted for Convicted for Conspiracy Unless Only a Misdemeanor is Involved
• Rule: The intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal
activity connected with the use of his supplies may be established by:
o (1) Direct evidence that he intends to participate, or
o (2) Through an inference that he intends to participate based on either
§ (a) His special interest in the activity
• The purveyor of the legal goods for illegal use has acquired a stake in the venture.
• No legitimate use for the goods or services exists.
• The volume of business with the buyer is grossly disproportionate to any legitimate demand.
§ (b) The felonious nature of the crime itself (knowledge would be enough).
• Facts: Lauria ran a telephone answering service, which he knew was used by several prostitutes in their business ventures.
Lauria was indicted with the prostitutes for conspiracy to commit prostitution. Charges of conspiracy against Lauria failed.
o Took no direct action to further the activities of the prostitutes.
o No evidence of a special interest in the prostitutes’ activities.
o Offense with which he has been charged is a misdemeanor.

30
 Emma Jo Hirschy
Model Penal Code § 5.03 – Conspiracy (Mens Rea)
• 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.

Actus Reus
Common Law Rule: Agreement by the parties to commit an unlawful act or series of unlawful acts together = actus reus.
• Overt Act: Conspiracy is committed as soon as the agreement is made, no act in furtherance of it is required (adopted by
Florida).
o Need not be a substantial step.
• Formation: Need not be in writing or even verbally expressed. It may be implied from the actions of the parties.
• The gist of conspiracy rests in the agreement between the conspirators to work in concert for the criminal, corrupt, or
unlawful purpose, and it is that agreement that constitutes the criminal act and generally serves to manifest the requisite
intent.
o When a D is convicted of conspiring with others to commit a crime, the conviction stems from, and is designed to
punish, the unlawful agreement that preexists commission of the substantive offense.
o That is why proof of the conspiracy typically involves circumstantial evidence aimed at establishing a consensus
prior to the commission of the target offense.
o Execution of the crime thus represents performance of the agreement, but the offense does not substitute for the
agreement.

Commonwealth v. Azim (Penn. 1983) – Co-Conspirators are Guilty of Acts Made by Other Members of the Conspiracy
• Rule: Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the criminal acts of their co-
conspirators.
o A conspiracy may be inferentially established by showing the relationship, conduct, or circumstances of the parties,
and overt acts on the part of the co-conspirators have been held adequate to prove that a wrongful alliance has in fact
been formed.
• Facts: Azim was the driver of a car which two friends jumped out of in order to beat and rob a man walking on the street.

Commonwealth v. Cook (Mass. App. Ct. 1980) – Complicity is Not Enough to Convict a Defendant of Conspiracy
• Rule: While proof of a tacit agreement to commit a crime may be enough to establish a conspiracy, a defendant cannot be
convicted of conspiracy solely on evidence tending to show his complicity as an accomplice in the commission of the
substantive crime.
o Acts of aiding and abetting clearly make each actor a principal in the substantive offense but cannot, without more,
also make each other a principal in the crime of conspiracy to commit such offense.
• Facts: Cook and his brother met a girl and partied a bit, after which Cook’s brother forcible raped her in the woods while
Cook watched. There was no evidence of a tacit agreement between the two.

Model Penal Code § 5.03 – Conspiracy (Actus Reus)

• (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.

Bilateral v. Unilateral Agreements

• Bilateral/Plurality: Requires actual agreement between two or more people.
o Police example: D cannot be convicted of conspiracy in plurality jurisdiction for conspiring with an undercover cop.
• Unilateral: Requires only one person’s intent to agree (MPC view)
o Criminals are more likely to carry out, more crimes, and more dangerous. We want to deter conspiracies.
o “A person who believes he is conspiring with another to commit a crime is a danger to the public regardless of
whether the other person in fact has agreed to commit the crime.”
§ Justified in that a man who believes that he is conspiring and wishes to conspire to commit a crime has a
guilty mind and has done all in his power to plot the commission of an unlawful purpose.
31
 Emma Jo Hirschy
• Scope: Co-conspirators can be tried jointly.
o Out of court statements made by co-conspirators are admissible.

People v. Foster (Ill. 1983) – Illinois Law Requires at Least Two Participants to Agree to Constitute Conspiracy
• Rule: The Illinois legislation encompasses the bilateral theory of conspiracy, which requires the actual agreement of at least
two participants.
• Facts: Foster devised a plan to rob an old man, however his co-conspirator really had reported him to the police and was just
feigning agreement.

Structure of Conspiracies
Chain Conspiracy: A conspiracy in which there is successive communication and cooperation.

Hub: Common source of the conspiracy.

Spoke: Different persons involved in the conspiracy.

Wheel Conspiracy: A conspiracy in which there is a single hub (conspiracy) and spokes (conspirators) who do not know each other.

Kilgore v. State (Ga. 1983) – Wheel Conspiracies

• Rule: In a wheel conspiracy, each spoke may be unaware of the other spokes and accordingly, each actor may not be liable
for the actions of the other spokes.

32
 Emma Jo Hirschy
o Generally, hearsay statements of one conspirator are admissible against all conspirators. This does not apply when
they do not know of each other’s existence.
• Facts: Kilgore was convicted of shooting Normal twice in the head, killing him, while he was driving down the interstate.

Braverman v. United States (1942) – Single Agreement to Commit Acts in Violation of Penal Statutes Must be Punished as One
Conspiracy
• Rule: A single agreement to commit an offense does not become several conspiracies because it continues over a period of
time, and that there may be a single continuing agreement to commit several offenses.
• Facts: Braverman and others were convicted of violating several statutes in the illicit manufacture, transportation, and
distribution of distilled spirits.
o The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the
violation of several statutes rather than one.

Withdrawal and Liability for Co-Conspirators’ Acts

Common Law
• Affirmative rejection of conspiracy
• Communicated to co-conspirators
• Before first overt act

Model Penal Code – Renunciation

• Defense to conspiracy itself
• Must thwart the success of the conspiracy

Pinkerton v. United States (1946) – Partners in Conspiracy Can be Convicted of Substantive Crime Without Participation
• Rule: Participation in the conspiracy is enough to sustain a conviction for the substantive offense in furtherance of the
conspiracy.
o So long as the partnership in crime continues, the partners act for each other in carrying it forward.
o An overt act of one partner may be the act of all without any new agreement specifically directed to that act.
o NOT ADOPTED BY THE MPC.
• Facts: Two brothers were convicted of both conspiracy and the substantive offense even though only one actually
participated in committing the offense.

Solicitation
**Will not be tested on.
• Merges into crime solicitated
• Actus Reus
o Solicitor asks, entices, or encourages another toc omit the target offense.
• Mens Rea
o Intent to do the actus reus of solicitation
o Intent that the person solicitated commit the charged offense.

DEFENSES
Justification – Indicates society’s belief that the D’s conduct was morally good, socially desirable, or at least not wrongful.
• Tends to focus on the wrongfulness of an act or a result,

Excuse – Actor committed the elements of the offense, and although their actions were unjustified – wrongful – the law does not
blame them for their wrongful conduct.
• Retributive Rationale: To blame a person is to express a moral criticism. If the person’s actions do not deserve criticism,
blaming them if a kind of falsehood and is, to the extent the person is injured by being blamed, unjust to him.

33
 Emma Jo Hirschy
• Tends to focus on the actor themselves.

NEITHER DURESS NOR NECESSESITY ARE DEFENSES TO INTENTIONAL HOMICIDE IN COMMON LAW.

Self-Defense
Common Law – Self Defense Elements
(1) Actual or apparent threat
(2) Threat must be unlawful
(3) Must be immediate/imminent
(4) D must have honest/reasonable belief that response was necessary
(5) To which there are, or appear to be, no available alternatives to the D except the use of force.

Common Law – Aggressor

• Definition: A person who commits an unlawful act reasonably calculated to produce an array foreboding injurious or fatal
consequences.
• United States v. Peterson (1973)
o Rule: An aggressor can only claim self-defense after abandoning the aggression.
§ Requires communication of intent to withdraw and good faith attempt.
o Facts: P saw D trying to take windshield wipers off of P’s car. Verbal exchange ensued then P went inside and
grabbed his gun only to find D leaving the scene. P threatened to shoot V. V grabbed a lug-wrench and P killed him.
o Holding: Conviction upheld.
§ Even if V was the original aggressor, he lost that status by retreating.
• Abandoning Aggressor Status
o Non-deadly aggressor: May refrain their right of self-defense against B if B responds to A’s nondeadly aggression
by threatening to use excessive – deadly – force in response.
§ Retreat: If A is aggressor and B responds with a threat of deadly force, A may not claim self-defense unless
A first retreats and B continues to threaten with deadly force.
• Only required when it is completely safe to retreat.
o Deadly aggressor: Must communicate the intent to withdraw and make a good faith attempt.

Common Law – Necessity to Use Deadly Force

• A person may not use deadly force unless it is necessary.
• A person may not use deadly force to repel an unlawful deadly attack if more moderate (non-deadly) force will do the job.
• Deadly force may never be used in response to a non-deadly threat, even if this is the only way to repel the non-deadly threat.
o A and B are standing when A tries to hit B in the face. B can only stop this by pushing A into traffic. This is not
allowed since it is excessive.
• Retreat – Must non aggressors retreat rather than stand their ground?
o Majority: No. Most non-MPC jurisdictions do not have a retreat requirement. In these states, the non-aggressor may
use deadly force, if otherwise necessary, even if they could have retreated.
o Minority: Yes. If they know it is COMPLETELY safe to retreat, then they may not respond with deadly force.
§ Safe place must be available and known.
§ Retreat requirement values human life. We should not kill the aggressors where it is possible to retreat to
safety without doing so.
o Castle Exception: A non-aggressor is NEVER required to retreat from their own home.
§ If the actor is an aggressor, then they have a duty to retreat still.
o Stand Your Ground Laws: A person who uses or threatens to use deadly force in accordance with this subsection
does not have a duty to retreat and has the right to stand his or her ground if he/she is not engaged in a criminal
activity and is in a place where he or she has a right to be.
• Imminence – Modern courts are not as strict. However, there must be an imminent threat of deadly force in order to use SD.

Model Penal Code – Self Defense Elements

34
 Emma Jo Hirschy
• Actor must believe
• That force is immediately necessary
o Imminent threat not necessary.
o A person may use deadly force in self-protection even if the aggressor will not use deadly force immediately.
• To protect against the use of unlawful force by another

Model Penal Code §§ 3.04(1) and (2)(B) – Deadly Force

• A person is not justified in using deadly force against another unless she believes that:
o Such force is immediately necessary to protect herself against the exercise of unlawful deadly force; AND
o Likely to cause serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat, by the other
person on the present occasion.

Model Penal Code § 3.04 – Aggressor

• Defense is not permitted if the actor is the aggressor, who the code defines as one who “provokes” the use of force against
herself in the same encounter.
• An initial aggressor is accountable for his original unlawful use of force but not for his defense against a disproportionate
return of force by his victim.
o Some statutes and common law claim that the person claiming SD mist be free of fault in bringing on the incident
completely.
o Might be an imperfect excuse/defense.

Model Penal Code – Retreat

• Follows minority common law rule that a non-aggressor must retreat if she know that she can thereby avoid the need to use
deadly force with complete safety to herself.

Reasonableness
General Rule – A person may use deadly force if she has:
• Reasonable grounds to believe,
• Actually believes,
• That she is in imminent danger of death or serious bodily harm, and
• That use of deadly force is necessary to protect herself,
• Even if her reasonable beliefs in these regards are incorrect.

Reasonable belief is a belief that a reasonable person would hold.

Most Objective Hybrid Most Subjective

What would a reasonable What would a What did D think was

person believe? reasonable person in reasonable to believe?
D’s situation believe?

People v. Goetz (N.Y. 1986)

• Rule: Before a D can prevail on a self-defense argument, it must be shown that his “reasonable belief” regarding the necessity
use deadly force comports with a “reasonable man” objective standard.
o Circumstances for reasonableness
§ Any relevant knowledge D had about that person
§ Necessarily bring in the physical attributes of all persons involved
§ D’s circumstances encompass any prior experience he had which could provide a reasonable basis for a
belief that another person’s intentions were to injure or rob him

35
 Emma Jo Hirschy
• Facts: D was on a NYC subway when 4 young black males approached him and demanded $5. D had been a victim of
multiple muggings and the crime in NYC was very high at the time. D pulled out his gun and, in a “pattern of fire,” shot the 4
boys. D shot one of them twice. Court reinstated the indictment against D, but he was eventually acquitted.

State v. Wanrow (Wash. 1977) – Prior Circumstances

• Rule: All the facts and circumstances known to a D, including those known prior to the incident and the genders of the
persons involved, must be taken into consideration when deciding if a D’s belief of danger was reasonable.
• Facts: D shot and killed a neighborhood man in a confrontation after neighbors asserted that the man (who had previously
tried to take D’s son off his bike and into the man’s house) was a child molester.

Defense of Others
Majority – Reasonable Belief Rule
• Actor may use force when, and to the extent that, she reasonably (even mistakenly) believes that the 3rd party (the person him
she is seeking to protect) would be justified in using force.
• Police hypo: A (actor) may use deadly force to protect B against C (undercover cop) if C is arresting B and has them at gun
point if A reasonably believes that B is being threatened with deadly force by a mugger.

Minority – “Alter-Ego” Rule

• May only use deadly force to protect a 3rd party if the 3rd party would in fact have been justified in using the same degree of
force in self-defense.
• Police hypo would not apply under the minority rule.

Necessity
Common Law – Necessity
• D must honestly, reasonably believe:
o There is foreseeable harm
o That harm is imminent
§ If there is sufficient time to seek a lawful avenue, the actor must take that lawful route.
§ Many courts/statutes provide that the actor must not be at fault in creating the necessity.
• D’s actions were taken to prevent that harm
o The foreseeable harms from D’s actions were less than the foreseeable harms had D not acted.
o There were no less harmful alternatives.
• The harms to be weighed and compared are those that a reasonable person, at that moment, would expect to occur.

Nelson v. State (Alaska, 1979) – Common Law Elements of Necessity

• Elements to Justify Necessity:
o The act charged must have been done to prevent a significant evil.
o There must have been no adequate alternative.
o The harm caused must not have been disproportionate to the harm avoided.
• Rule: The person’s actions must be weighed against the harm reasonably foreseeable at the time, rather than the harm that
actually occurs.
o The court must make an objective determination as to whether the defendant’s value judgment was correct.
§ The D’s reasonable belief as to the relative harmfulness of the evil to be avoided and the evil resulting from
the actions taken does not control.
§ It is for the court, not a defendant, to weigh the relative harmfulness of the two alternatives.
• Facts: D raised the defense of necessity as justification for his actions in taking a dump truck and front-end loader from a
highway department yard to pull his stuck vehicle from a marshy area. He was convicted for reckless destruction of personal
property and joyriding. D appealed.

People v. Fontes (Colo. App. 2003) – Fraudulent Check for Groceries Hypo
• Too many cases of this nature to allow necessity for a fraudulent check for groceries.
36
 Emma Jo Hirschy
o Economic necessity alone cannot support a choice of crime. Rarely successful.
• The administrability of these cases would be a nightmare.

The Queen v. Dudley and Stephens (1884) – Common Law Necessity

• Rule: A D’s actions are not justified under the defense of necessity if he deliberately kills an innocent person in order to save
his own life.
o One life is not > than someone else’s life.
• Facts: English sailors at sea for 20 days (the last 9 days without food or water) killed and consumed a cabin boy for which
they were found guilty of murder.
• Reasoning:
o “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant’s
fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and
punishment of murder, if he commit the fact, for he ought rather to die than kill an innocent person.”
§ A man has no right to declare temptation to be an excuse, nor allow compassion for the criminal to change
or weaken in any manner the legal definition of the crime.
o The sailors were not under an immediate threat of death and certainly under no threat from the boy.
o It would be one thing “morally, legally” to allow the boy to die and then consume him, but it is another thing to kill
him in order to consume him.

Model Penal Code § 3.02 – Choice of Evils (Minority rule – only adopted in 2-3 states)
• Elements:
o Actor must actually, reasonably believe that his conduct is necessary to avoid an evil.
§ There is a foreseeable harm.
§ No imminence requirement.
o The necessity must arise from an attempt by the actor to avoid an evil or harm that is greater than the evil or harm
sought to be avoided by the law defining the offense charged (equal or lesser harm will not suffice).
§ The foreseeable harms from D’s actions were less than the foreseeable harms had D not acted.
§ There were no less harmful alternatives.
• The balancing of evils is not committed to the private judgment of the actor. It is an issue for determination at trial.
o Even if the D genuinely believes that the life of another is less valuable than his own financial security, his conduct
would not be justified.

MPC Necessity Examples

• Property may be destroyed to prevent the spread of a fire.
• A speed limit may be violated in pursuing a suspected criminal.
• An ambulance may pass a traffic light.
• Mountain climbers lost in a storm may take refuge in a house or may appropriate provisions.
• Cargo may be jettisoned, or an embargo violated to preserve the vessel.
• An alien may violate a curfew in order to reach an air raid shelter.
• A druggist may dispense a drug without the requisite prescription to alleviate grave distress in an emergency.

Duress
Common Law – Elements of Duress
• An immediate threat of death or serious bodily injury unless the crime is committed
o Requires some evidence that the threat of injury was present, immediate, or impending
o A veiled threat of future unspecified harm does not suffice
• A reasonable grounded fear that the threat will be carried out
• No reasonable opportunity to escape the threatened harm

Duress = An Excuse
• The coerced person is morally blameless, but still did something wrong.
37
 Emma Jo Hirschy
• Essence of duress: A person is not to blame for her conduct if, because of an unlawful threat, she lacked a fair opportunity to
conform her conduct to the law.

United States v. Contento-Pachon (9th Cir. 1984) – Common Law

• Rule: A D may assert the defense of duress when he acts under a threat of future harm only when the harm is likely to occur
so quickly that the D cannot escape the situation.
• Facts: Contento-Pachon, a Colombian national acting under duress, swallowed balloons filled with cocaine for transport to
the U.S. and was arrested while at customs.
• Reasoning:
o The threat of danger was immediate because D had reason to believe that his family would be killed if he did not
comply.
o D had no real opportunity to escape the danger by going to the authorities.

Model Penal Code § 2.09 – Duress

• D committed an offense because they were coerced to do so by another person’s use of, or threat to use, unlawful force
against him or a third party.
o A person of reasonable firmness would have committed the offense.
• Differences from Common Law: Considerably broader than the common law.
o No “deadly threat” nor imminency requirement.
§ Sufficient that coercer used, or threatened to use, any form of unlawful physical coercion.
o Prior use of force is allowed under MPC.
§ Even though no force was used now, if it has been used before by the same person then duress may be
present.
o MPC does not have a homicide restriction for duress. Thus, a jury can decide whether the killing of an innocent
person is excused under duress.
• Applicable in intentional homicide.

Distinguished – Necessity v. Duress

• Necessity
o Appropriate when source of frustration is natural
o Negation of actus reus since free will is exercised to achieve the greater good
• Duress
o Appropriate when source of frustration is human
o Negation of mens rea for duress

Competency to Stand Trial

In General
• May be raised at any time.
o State may presume that D is competent and require them to prove their incompetency by a preponderance of
evidence.
• The government can involuntarily administer antipsychotic drugs to a mentally ill D facing serious criminal charges in order
to render the D competent to stand trial, but only if (Sell v. United States):
o The treatment is medically appropriate
o Is substantially unlikely to have side effects that may undermine the fairness of the trial
o Taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-
related interests.

Incompetency v. Insanity
• Time-framing
o Incompetency: D’s mental state at the time of the prosecution
o Insanity: D’s mental state at the time of the crime.
38
 Emma Jo Hirschy
• Incompetency
o Inability to consult with attorney with reasonable degree of rational understanding
o Lack of rational and factual understanding of the proceedings
o Proved by a preponderance of the evidence (not clear and convincing evidence)

If Found Incompetent:
• Criminal proceedings are suspended
• Commitment to mental health facility for a reasonable period of time until they regain competency
• If no reasonable probability of regaining competency, D must be released from criminal proceedings
o Civil commitment option still available

Insanity

United States v. Freeman (2nd Cir. 1966) – Policy Concerns

• “Those who are substantially unable to restrain their conduct are, by definition, undeterrable and their “punishment” is no
example for others; those who are insane can hardly be expected rationally to weigh the consequences of their conduct.”

Insanity v. Mental Illness

• If found not guilty for reason of insanity (NGRI):
o Committed but NOT in prison facility.
o If D regains sanity, they are released.
• If found guilty because of mental illness (GBMI):
o Sentenced
§ Receive psychiatric care
§ In custody of state corrections system
o If sanity is regained, they are sent back to prison to serve out the rest of their sentence.

Common Law – M’Naghten Test (Johnson)

• “Defect of reason from disease of the mind”
• D must either:
o Not know nature and quality of act
o Not know act was wrong
o Purely cognitive ® Only asks what D knew
• Criticisms from Johnson:
o Refuses to recognize volitional or emotional impairments.
o All or nothing approach – requires total incapacity of cognition.
o Compels the psychiatrist to testify in terms of unrealistic concepts having no medical meaning.
o Called for a moral or ethical judgment from the expert rather than scientific opinions.
o Severely restricts expert testimony.

Common Law – Irresistible Impulse Test (Johnson)

• Must result because of mental illness
• D either:
o Could not resist impulse to commit crime
o Could not control actions
• Produces the misleading notion that a crime impulsively committed must have been perpetrated in a sudden and explosive fit.

Common Law – Product Test (Johnson)

• D’s actions must be the product of a mental disease or defect.
• Critiques:
o Undefined concept of productivity gave the jury inadequate guidance.
39
 Emma Jo Hirschy
o Tended to result in expert witnesses’ usurpation of the jury function.
o Invited the jury to abdicate its responsibility as ultimate decision maker and acquiesce in the experts’ conclusions.

Model Penal Code § 4.01 – Insanity

• Relieves the D of responsibility under two circumstances:
o D lacked a substantial capacity to appreciate the wrongfulness of his conduct
§ Appreciating that the community regards the behavior as wrongful.
§ Substantial capacity
• A capacity of some appreciable magnitude when measured by the standard of humanity in general,
as opposed to the reduction of capacity to the vagrant and trivial dimensions characteristic of the
most severe afflictions of the mind.
o D lacked substantial capacity to conform his conduct to the requirements of the law

State v. Johnson (R.I. 1979) – Adopts Model Penal Code Test

• Rule: A jury can consider volitional as well as cognitive impairments before imposing criminal responsibility.

State v. Wilson (Conn. 1997) – “Wrongfulness” for Insanity Includes Appreciation of Legal Wrong & Moral Wrong
• Rule: Even if a defendant appreciates that his actions were illegal, if he believes, due to his mental disease of defect, that his
actions were morally justified (society would condone his actions if it understood the situation like the defendant understands
the situation) then he will not be criminally responsible for his actions.
o A person who was following a delusional “deific command” might fall within a category of cases in which a
person’s delusional personal beliefs so clouded his cognition as to render him incapable of recognizing the broader
moral implications of his actions.
• Facts: Wilson shot to death a friend’s father because he though Jack was the mastermind of a huge conspiracy to control
everyone’s mind, particularly Wilson’s mind.

EXAM PREPARATION
Structure of Exam
• The exam should only take three hours, but Eisenberg allows four hours to complete it.
• Eisenberg would like us to utilize headings.
• There will be a 48-hour blackout period before the final exam.
o Make sure to review the slides. Do not ask any questions that happen to already be on a slide she made.
• If you are given a fact pattern and someone dies, do NOT waste your time writing ALL of the possible ways this person
could be guilty.
o If they are dead, we are NOT going to prosecute them.
• Look for what charges can be brought, counterarguments, and how likely the defendant is to succeed.
• No citations are required.
o Eisenberg will provide statutes for us.
o It is helpful if the facts of one case are either similar or distinguishable to your analysis.
• No CREAC or IRAC preference.
• If it is a case where you are given a statute about provocation, but provocation does not apply, use ONE line dismissing that
provocation does not apply. Do not use three pages to explain why.
• If the exam explicitly states what jurisdiction you are in, do not fight it.
• There will not be a multiple-choice section. There will be short answer and essay questions.
• Exam will not be in secure mode. You will be able to access your files during the exam.
o Do not copy and paste.
o Eisenberg does not like prewrites.
• For short answers, there will be word limits. For essay answers, there will likely not be word limits.
o You do not get extra credit for writing the most.

40
 Emma Jo Hirschy
• Eisenberg will give you a suggested time breakdown.
o Indicates how much a question will be weighed.

41