2/1/2014 2:48:00 PM

Basic Requirements for Criminal Liability

1. Actus Reus (culpable conduct)
a. Voluntary act that causes an unlawful result
i. Voluntary Act: movements of the physical body. Cannot be
punished for thoughts or intentions
1. MPC: Liability based on conduct which includes a
voluntary act. Looks at each element rather than as a
whole
ii. Involuntary Act: bodily movements not in control of the
conscious mind (narrow definition). Self-induced not a defense
1. MPC: Reflex of convulsion, movement during
unconsciousness or sleep, conduct during hypnosis,
other movement not an effort of person
b. Omission to act where the defendant is under a legal duty to act
i. There is a legal duty to act
1. By statute (failure to file a tax return)
2. By contract (failure of lifeguard to rescue)
3. Based upon relationship (parent for a child)
4. Where a voluntary undertaking is begun
a. unreasonable abandonment of a rescue that could
worsen a victims plight, even if done by a Good
Samaritan
5. Where someone creates a risk of peril to another
a. Push victim into pool as a joke, but then realize
victim cant swim
ii. The defendant can physically perform the act
iii. MPC: Very similar
1. Penal statute specifically requiring action
2. Duty to perform the act is otherwise imposed by law
2. Mens Rea (mental state)
a. General Intent: commission of an unlawful act without a specific
mens rea. Overall wicked mind, generally morally blameworthy
state of mind
i. Ex: Rape, Battery
b. Specific Intent: Act element done with further purpose in mind of
actual knowledge of some particular circumstances

i. Ex: Burglary, Theft

c. Definitions
i. Intent: a person has intentionally caused the social harm of
actus reus when (1) it is his desire to cause the harm (2) he
acts with knowledge social harm is substantially certain to
occur as a result of his act
1. Transferred Intent Doctrine: if meant to kill one person
and accidently killed the other, still liable
ii. Motive: does not negate intent. Relevant in relation to specificintent crimes, claims of defense, sentencing
iii. Knowledge: required of circumstances, material elements
iv. Willful: can be synonym for intentional or an evil motive
v. Negligence: failure to do what a reasonable person would,
based on (1) gravity of harm that would foreseeably result
from Ds conduct (2) probability of harm occurring (3) burden
to D from desisting from conduct
vi. Criminal Negligence: imposed when there is a gross deviation
from standard of care (substantial and unjustifiable)
vii. Recklessness: actor disregarded a substantial or unjustifiable
risk of which he was aware
viii. Malice: acts intentionally or with reckless disregard of an
obvious or known risk that the particular harmful result will
occur
d. MPC: Takes an elemental approach to mens rea each element of a
crime must have a culpable state of mind; 4 levels of culpability
i. Purpose: the action committed or the result caused is not
purposive unless it was the actors conscious objective to
perform the action or result. Need knowledge of external
circumstances
ii. Knowledge: Actor is aware that his actions are illegal or illegal
result is practically certain to follow from his conduct. Need
knowledge of external circumstances
iii. Recklessness: involved conscious risk creation. Awareness is
of risk, which is probably less than substantial certainty.
Pertains to action, result, circumstances. This depends on how
substantial and unjustifiable the risk is.

iv. Negligence: distinguished from the others in that it does not

involve a state of awareness. A person is negligent when he
inadvertently creates a substantial and unjustifiable risk of
which he ought to be aware. Like in recklessness, the risk
must be substantial and unjustifiable. Whether he ought to
have been aware of it depends on whether in the
circumstances a reasonable person would have exercised care
in the situation (given degree of risk, purpose of actors
conduct, circumstances known to him).
e. MPC: The required mental state must be found for each element of
a crime. The four culpabilities are in a hierarchy.
i. Three Elements
1. Conduct
2. Circumstances
a. Require culpability or strict liability element?
3. Result
ii. If no culpability mentioned, recklessness at least required
iii. If statute only mentions culpability in relation to one part of
crime, it is taken to apply to all elements of the statute
f. Mistake of Fact: occurs when what D did was in violation of the law
but D was mistaken about facts: if the facts were as he believed
them to be, then what he was doing would not have violated the
law
i. Negates the existence of a mental state required to establish a
material element of the crime. There would be no crime if the
facts were such as the defendant thought them to be
1. Mistake of fact is not a defense to a strict liability crime,
which itself requires no mental state
a. Not a defense to statutory rape that the
defendant thought the victim was of age
ii. Examples: D is driving at 70 but thought she was doing 55
according to her speedometer; D shoots and kills what he
thinks is a deer, turns out to be another hunter
iii. To negate the existence of:

1. General intent, a mistake of fact must be reasonable to

the extent that under the circumstances a reasonable
person would have made that type of mistake
2. Specific intent, a mistake of fact need not be
reasonable. It may be unreasonable, provided it be
honest
iv. MPC: A mistake is a defense if it negates some culpability state
that is required with respect to one of the elements of the
crime (doesnt matter if it is a strict or general liability crime).
1. Under MPC each element must have a mens rea of
negligence or higher. If jury found he was reasonably
mistaken, he couldnt have been negligent. So not
guilty because could not prove all the material elements
of the crime
g. Mistake of Law: Generally, where the defendant is unaware that his
acts are criminally proscribed, such ignorance of the law is not a
defense
i. Exceptions include situations:
1. Where a statute proscribing the defendants conduct
has not been reasonably made available or where the
defendant has reasonably relied on a statute or judicial
decision that is later overruled or declared
unconstitutional
2. Where a defendant relies in good faith upon an
erroneous official statement of law contained in an
administrative order or in an official interpretation by a
police officer or department
3. Where some element of a crime involves knowledge or
awareness of the law by the defendant
ii. Types:
1. Direct (same law mistakes): mistake about very law
charged with violating
a. Ex: Didnt know insider trading against the law
b. Affirmative defense; usually rejected by court
c. MPC: will not generally permit as a defense either

i. Statute relied on must be erroneous, not Ds

interpretation
2. Collateral (different law mistakes): mistake about some
other law involved in case but not one charged with
a. Ex: Didnt know information received was
considered to be insider trading
b. A failure of proof defense; courts less receptive
i. Some permit only for specific intent crime
c. MPC: Will be defense if negates some kind of
culpability
i. Almost always a permissible defense
h. Strict Liability: Crimes that do not require mens rea for at least one
element; culpability is imposed on a defendant merely for doing the
act that is prohibited by statute
i. Ex: Statutory rape, Bigamy, felony murder, speeding
ii. Even if an element of the crime does not require mens rea, you
still need a voluntary act
iii. Congress must state it is a strict liability crime, otherwise must
find mens rea
Homicide
3. Murder
a. Homicide with malice aforethought
b. The actus reus must be a voluntary act, an involuntary act arising
from a voluntary act (such as a person who has frequent seizures
driving a car)
c. The death must be caused by someone other than the victim
i. Suicide is not homicide because the death must be caused by
another
ii. To persuade or aid another to commit suicide is a sufficient
basis for murder in some jurisdictions
d. At common law, the mens rea for murder was malice
i. The mental states that constitute malice
1. Intent to kill: one intends the natural consequences of
their actions (includes knowing something will cause
death even if that is not the goal). Once find intent to

kill, look at premeditation to see if 1st or 2nd degree

murder
a. Deadly Weapons Doctrine: an inference of intent
to kill is raised through the intentional use of any
instrument which, judging from the manner of its
use, is calculated to produce death or serious
bodily injury
2. Intent to inflict great bodily harm: if intend to inflict the
harm, death has been caused with malice. What counts
as GBH is not unanimous. Usually it is life-threatening
or deprives person of use of limb, etc.
3. Depraved heart: an extremely reckless disregard for the
value of human life. Unintentional killing resulting from
conduct involving a wanton indifference to human life
and a conscious disregard of an unreasonable risk of
death or serious bodily injury. So indifferent that
person as good as killed the victim (dispute as to
whether person has to be aware of risk of death
usually does.) (Usually 2nd degree murder).
a. Recklessness conscious awareness of risk
b. Degree of risk substantial and unjustifiable
c. Degree of disregard of the risk
4. Felony Murder: a killing proximately caused during the
commission or attempted commission of a serious or
inherently dangerous felony.
a. It includes both intentional and accidental killings
b. Includes liability for the acts of ones accomplices
i. Ex: a getaway driver for a bank robbery is
liable under the felony-murder rule for the
accidental killing of a bank teller when one of
the robbers drops his gun, which fires and
kills the teller when it hits the floor
ii. Agency Theory: only deaths caused by the
agents of the crime

iii. Proximate Cause Theory: any death, even if

caused by bystander or police, proximately
caused by the felony
c. Limitations
i. A majority of states require the underlying
felony must be independent of the homicide
so that every felonious attack upon a victim
that it ultimately fatal does not become
escalated to murder by the rule
ii. Must be an inherently dangerous felony such
as burglary, arson, robbery, rape, or
kidnapping
1. Crime itself in abstract
2. Facts of the case
iii. Must occur during the commission or
perpetration of the felony
1. If defendant has reached a place of
temporary safety, the felony is
deemed to have terminated
iv. Death must be a direct causal result of the
felony, but it need not be foreseeable result
v. Any defense to the underlying felony negates
the felony murder
d. Merger Doctrine
i. Merges if felony assaultive in nature
1. Felony involves threat of immediate
violent injury
ii. Independent Felonious Purpose
5. Provocative Act Doctrine
a. Person behaves in a way likely to provoke others
to use deadly force
i.
e. Degrees of murder: Defined by statute
i. First Degree Murder: willful, premeditated, and deliberate

1. Some states: morally heinous such as murder

accomplished by lying in wait, poison, terrorism, or
torture
2. Includes killings that take place during certain felonies
(inherently dangerous)
ii. Second Degree Murder: any murder that does not meet the
requisite elements of first degree murder
1. Where the defendants malice is to inflict serious bodily
injury
2. Where the defendant acted with wanton and willful
misconduct
3. Where the underlying felony is not specifically listed in
an applicable first-degree murder statute (felonymurder)
4. Manslaughter
a. Homicide without malice
b. Voluntary Manslaughter
i. Intentional killing mitigated by adequate provocation negating
malice aforethought. Commonly called a heat of passion
killing. Need not involve intent to kill, though it usually does.
Intent to inflict GBH is enough or depraved heart.
ii. Provocation must be such that the passion of a reasonable
person would be inflamed so much that one would be tempted
to kill. Sufficient to mitigate an intentional killing from murder
to manslaughter if it would make an ordinary man incapable of
reflection of judgment acting on passion alone.
1. The killer acted in the heat of passion
2. Resulting from adequate provocation
a. Mere words not enough
3. Before sufficient cooling time
iii. What qualifies as provocation?
1. Adultery with offenders spouse
a. Must walk in on the act
2. If defendant mistaken as to existence of provocation
but reasonably believed it to exist

3. If defendant intended to kill provoking party but killed

someone else by accident
4. Substantial physical injury or assault
5. Not if person killed was not the source of provocation
third party not related
iv. MPC: Provocation
1. The reasonableness of the action is to be determined
from the viewpoint of a person in the defendants
position under the circumstances as the defendant
believe them to be
2. Murder can be downgraded due to evidence of extreme
mental or emotional disturbance
c. Involuntary Manslaughter
i. Unintentional killing resulting without malice aforethought
caused either by recklessness or gross negligence. An
unintentional killing that is the result of an act lawful in itself,
but done in an unlawful manner, without due caution. Aware
that conduct is risky, or should be aware that it is
1. Conduct element: action caused death
2. Mental requirement: gross negligence (an exaggerated
departure from what the normal person would do) or
recklessness
ii. An unintentional killing that occurs during the commission or
attempted commission of a misdemeanor that is malum in se
or of a felony that is not inherently dangerous type required for
felony murder is classified as involuntary manslaughter under
the misdemeanor-manslaughter rule.
The Significance of Resulting Harm
5. Causation
a. Actual Cause: (also called cause in fact) may be satisfied by either
of two tests:
i. If the criminal result would not have occurred absent the
defendants act, then the defendants act is the actual cause of
the criminal result

1. In other words, were it not form or but for the

defendants actions, the criminal result would not have
occurred
ii. When there are multiple causes or other parties responsible for
the criminal result, courts will still find a defendant responsible
if the defendants act was a substantial factor causing the
criminal result
1. Ex: D1 stabs victim in the heart with a knife.
Simultaneous with this stabbing, D2 shoots victim in the
head. Medical testimony establishes that either the
knife or bullet wound alone was sufficient cause to
instantly kill victim. D1s act can be considered the
actual cause of victims death
b. Proximate Cause:
i. resultant harm must be within the risk created by the
defendants conduct (foreseeable) in crimes involving
negligence or recklessness; or
ii. Sufficiently similar to that intended in crimes requiring intent,
so as not to hold the defendant liable for extraordinary results
(such as acts of nature, or grossly negligent or intentional bad
acts of third parties, including intentional medical
mistreatment) (not foreseeable)
1. You take the plaintiff as you find him applies to crime
victims as well. If the harm results from a special
sensitivity, the defendants act is a proximate cause of
the harm, regardless of whether the defendant could
have foreseen the unique medical condition
iii. To establish proximate cause, one should look at the result and
decide if it is foreseeable regardless of the other events that
occurred in the meantime
1. Proximate is less harsh than but for in terms of closely
enough related
a. D in police chase and two helicopters collide
i. But for his conduct, the resulting crash never
would have happened, responsible for deaths

ii. Proximate cause not foreseeable the two

copters would collide, not responsible for
deaths
c. Direct Cause: when the defendants actions alone cause the harm.
It is very likely that the defendant will be held legally responsible
d. Indirect Cause: when another force combines with the defendants
act to bring about the harm is called an intervening cause
i. To relieve the defendant of liability and thus, in effect, break
the chain of proximate cause, the other force must be
superseding intervening cause.
e. Intervening Cause: rules determining if superseding (and thereby
break the chain of causation) differ according to whether the
intervening force is dependent on or independent of the defendants
act.
i. Dependent Intervening Cause: An intervening force that is a
result of or a response to the defendants act
1. Will supersede the defendants act only when it is a
totally abnormal response to the defendants act
2. Intervening human action: foreseeable or reasonable
response to danger created by first persons actions
3. Ex: D intentionally runs over V with Ds car causing V to
suffer serious (but not life-threatening) injuries. Victim
is rushed to a hospital and given medical treatment. If
the attending physician negligently treats V, resulting in
Vs death, and the negligent treatment is not considered
abnormal, D can be found to have proximately caused
Vs death
ii. Independent Intervening Cause: An intervening force that
would have occurred regardless of the defendants act
1. Normally will supersede the defendants act, except
when the independent intervening force was
foreseeable
2. Ex: D, having planned to kill his wife, returns home late
on a stormy night. D drives into the driveway and
notes that the entire house is surrounded by snow drifts
from the storm. D enters the home and pulls a gun on

his wife. The wife struggles and manages to break free

and get outside. She is dressed only in a nightgown
and decides to hide from her husband and sleep in the
doghouse rather than seek help in the bitter cold. She
dies of exposure during the evening. Defendants act
might be sufficient to impose criminal liability to the
foreseeability of the wifes death from exposure.
a. Apparent safety doctrine
iii. De minimis: defendants conduct minimal doesnt matter
iv. Intended cause: as long as it gets there
v. Free, independent, informed human intervention
f. MPC: Must be a but-for and a proximate cause
i. 2.03(1): (a) but for causation (b) any extra feature required
(by code itself or statute) has to be there
ii. 2.03(2)(3): further requirements for proximate causation. (2)
states extra proximity for crimes defined as purpose or
knowledge. (3) deals with crimes of recklessness or negligence
1. (2)(a) & (3)(a) are specialized rules. Proximate
causation arises when there is a divergence between
what actor wanted to happen and what actually
happened, if the result is to a different person or
property OR it is less harmful than intended.
2. (2)(b) & (3)(b) are general requirements about
proximate causation. This is a general version of
transferred intent. No definition, leaves it up to a jury
to decide whether the actual result involves the same
kind of harm as what D was intending, AND the actual
result is not too remote or accidental in its recurrence
to have a just bearing on activity. Critics upset because
it is up to jury to decide how much they dislike D. More
atrocious Ds conduct is, the further causation will
extend.
6. Attempt
a. A specific intent to bring about a criminal result (mostly homicide)
(mens rea); and

i. For murder: (1) killing with intent to kill (2) knowledge that
you will kill (3) knowledge that you create a strong probability
of death
ii. For attempt: (1) intent to commit the crime of murder
iii. What is certain about crime of murder is that you must kill
someone the first word killing (plus one of the three murder
states). So if he didnt intend to kill anyone period, jury would
have understood. The only way to intend the behavior is to
intend to kill. So you can commit murder with one of three
mental states but can only attempt to commit murder with one
mental state
1. Ex: Guy got mad at woman and shot at her tent. IF it
would have hit her he would have been guilty of
murder, but he was not guilty of attempted murder
because there was no intent to kill
iv. Justifications for special intent as mens rea for attempt
1. Dont want to be guilty of attempted murder for driving
recklessly
2. Guilty of felony-murder every time there is a robbery
3. Person who has attempted a crime represents a
continuing threat to society, but this is weak if the
person id not intend to cause death
v. MPC: Definition of attempt: A person is guilty of attempt to
commit a crime if, acting with the kind of culpability otherwise
required for commission of the crime, he:
1. Purposely engages in conduct which would constitute
the crime if the attendant circumstances were as he
believes them to be; or
2. 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. Easier to convict for attempt under MPC
3. Substantial Step Criterion (see below)
b. A significant overt act in furtherance of that intent (actus reus)
i. Dangerous proximity criterion

1. Focus on how close the act has come to the conclusion

of the crime. The act must come dangerously close.
2. The more serious the crime, the further away you have
to be to be dangerously close
a. Ex: Armed guys driving around looking for guy to
kill, not guilty
ii. MPC: Substantial step criterion
1. Attempts to shift the focus away from how much
remains to be done (dangerous proximity) to how much
defendant has done.
2. Results in criminality at an earlier time than the
proximity approach or equivocality
3. Substantial: the conduct must be strongly corroborative
of the actors criminal intent. So less than
unequivocal (where act speaks for itself). But you
cant turn around.
a. If you find a piece of evidence that is
corroborative of criminal intent, it is not a
substantial step. It goes only the other way
around
b. State legislatures have made preparatory acts
crimes in certain cases burglary
Accomplice Liability
7. Degrees:
a. Traditionally:
i. Principle in the first degree: the actor
ii. Principle in the second degree: aiding and abetting and had to
be present at the crime scene. This mean consecutive
presence somewhere close to the crime scene.
iii. Accessory before the fact: counsels, not present at the scene
iv. Accessory after the fact: nothing to do with crime at the time
b. Modern Day:
i. Accessories after the fact are viewed as guilty of some lesser
offense of obstructing justice. The other three are usually
treated as equal parties to the crime.

ii. An accomplice can be convicted whether or not the perpetrator

of crime has been tried and convicted.
iii. If person is accomplice to murder, then the crime hes
convicted of is murder
8. Mens Rea
a. Mens Rea for Actions of the Principle
i. 1st mens rea requirement for accomplice:
1. The intent to aid/encourage the perpetrator to engage
in:
a. The conduct that forms the basis of the offense

ii. 2nd

b. The conduct that the law makes criminal

c. The actus reus of the crime
2. Not necessary that you know that the conduct you
encourage is criminal
mens rea requirement for accomplice:
1. (At least) the mens rea required for commission of the
offense
a. Usually, if you have the 1st requirement, also
have the 2nd

b. But in specific intent crimes, it is possible to have

1st and not 2nd. Need to prove accomplice had the
specific intent
iii. Hicks v. United States Situations:
1. If situation where accomplice did not act, if have
evidence that the accomplices intention to aid was
know to the perpetrator a pre-arranged plan, and
then the aiding wasnt necessary
2. Hicks just goes to enjoy the spectacle: no liability no
intent to encourage or aid Rowe, so no mens rea
3. Same, but Hicks yells go get him and attaboy: not
necessary to who show that what accomplice did altered
the outcome. Yes liability because he encouraged Rowe
to commit the murder. But mens rea?
4. Same, but Rowe didnt hear it? No Actus Reus
5. Hicks

iv. MPC: A person is an accomplice of another person in the

commission of an offense if:
1. With the purpose of promoting or facilitating the
commission of the offense, he
a. Solicits such other person to commit it; or
b. Aids or agrees or attempts to aid such other
person in planning or committing it; or
c. Having a legal duty to prevent the commission of
the offense, fails to make proper effort so to do
2. Essentially means must have an actual purpose; want
the crime to succeed
a. Communication not necessary
b. Mens Rea for Results and Attendant Circumstances
i. Circumstance Elements
1. Strict Liability
a. Court wont usually convict accomplice
2. Must be aware of all the circumstances to make it
criminal purpose of facilitating commission of crime
3. MPC: Unclear deliberate ambiguity
a. Just argue purpose vs. mens rea
ii. Result Crimes
1. Intentionally aided or encouraged principle to engage in
the conduct that produced result (death)
2. MR#1 is relaxed
a. Accomplice does not literally intend the result,
just the risk creating conduct
3. MPC: Unclear deliberate ambiguity (again)
a. Just argue purpose vs. mens rea
c. Natural and Probable Consequences Theory
i. If accomplice intends to and does encourage principle to do
first crime, but principle does second crime, then accomplice is
accomplice to second crime if second crime is a reasonably
foreseeable consequence of first crime
ii. MPC: accomplice must intend to aid in the act done by the
principle or no liability

1. Would probably be convicted as accomplice to second

crime anyways
9. Actus Reus
a. Defendant must actually assist or encourage
i. Slight assistance or encouragement is sufficient
1. Mere presence does not make one an accomplice
2. Words alone may be sufficient if they assisted or
encouraged
ii. The assistance or encouragement need not be a cause in fact
of the commission on the crime
1. If the crime does not happen, cannot be convicted as
accomplice

10.

b. MPC:
i. Liable if attempt to assist or encourage, but does not actually
assist or encourage
1. If crime (murder) is not committed, can still be
convicted of attempted crime (attempted murder)
Extensions
a. Innocent-Instrumentality Theory: an accomplice cannot be
convicted unless there was actually a crime committed by the
principle
i. But a second party may be guilty of the crime and the actor not
if the second party uses the actor as his tool
1. Second party is guilty as the principle
ii. MPC: uses same approach
b. Excuse defenses do not extend to others
i. Can still be proven the principle committed the crime
1. Just have to prove the crime was committed to convict
accomplice
ii. Defense is person to the principle and does not extend to the
accomplice
c. Justifications do extend to others
i. Accomplice cannot be held responsible because the principles
conduct was not criminal
d. The Acquitted Principle

i. An accomplice can be put on trial and convicted even if the

principle has not been tried yet and even if P has been found
not guilty.
1. This happens, juries differ (where A&P are tried in two
separate cases)
2. That the jury finds that P did not commit the crime does
not mean that P really did no commit the crime
a. But at the accomplices trial, the government
must prove that P did in fact commit the crime
3. IF A&P are on trial in same proceeding, then A cannot
be found guilty if P is not.
e. Acts of a detective are not imputable to the defendant (accomplice)
i. No crime committed as principle did not have required mens
rea
1. Principal and accomplice must have same motive
f. Accomplice cannot be convicted of a more serious crime than the
one committed by principle
i. Can go opposite way; accomplice can be convicted of less
serious crime
1. E.g., in the heat of passion, A hires P to kill V. So P
would be convicted of 1st degree murder. A might be
convicted only of voluntary manslaughter
ii. Cant just attach mental state of one person to the acts of
another
iii.
Conspiracy
11. Definition
a. Agreement between two or more people to commit one or more
unlawful acts
i. Actual agreement is required.
1. Feigned agreement as in the case of an undercover
police officer, is insufficient
2. Agreement need not be express but may be proved
circumstantially by conduct where the conspirators
demonstrate over time that they intended to achieve
the same objective and agreed to work together. The

agreement does not require a meeting of the minds but

merely a shared intent to pursue a mutual goal
a. A tacit agreement can be proved by circumstantial
evidence
3. The objective of the agreement must be to either
commit a crime or to commit a lawful act by unlawful
means
b. Some jurisdictions add to the agreement of the overt act
requirement.
i. The majority rule is than an overt act in furtherance of the
conspiracy is also required for conspiracy liability
ii. This prevailing view reflects a change from the traditional
common law rule, which had no such requirement (the
agreement itself constituted the crime)
iii. The overt act requirement for conspiracy need not be criminal
or unlawful, and need only be committed by one member of
the conspiracy
iv. Mere preparation will suffice (e.g. purchasing matches in a
conspiracy involving the burning of a building or driving by a

12.

13.

house to observe if someone is home in a conspiracy involving

theft).
c. MPC: Unilateral approach
i. Focuses on individual people
ii. Conspiracy could go one way, not both ways
The Actus Reus of Conspiracy
a. The act in conspiracy is the agreement between people.
i. Agreement does not need to be explicit
ii. A tacit agreement is sufficient
The Mens Rea of Conspiracy
a. The intent to agree
i. Similar to act part;
b. The intent to commit the target crime (unlawful object of
conspiracy)
i. This is what really matters
ii. Knowledge not enough, must be intent to further criminal use
1. Show intent vs. knowledge

a. Gives advice on how to us a gun to kill someone

b. Supplier charges inflated price to criminal
c. Supplying something with no legal use
d. Dealing disproportionately with criminals
2. Mere knowledge that stuff will be used to commit a
crime if the crime is a serious crime. This is dicta
c. Mens Rea as to result elements of the crime
i. If the target crime has a result element, it is agreed that the
conspiracy to commit the crime requires the intent to bring
about that result
1. So murder requires an intent to commit murder
2. No such thing as conspiracy to commit involuntary
manslaughter
3. Knowledge could happen not enough, could be
convicted of crime later, but not conspiracy
ii. MPC: requires an actual purpose to achieve the result
iii. Corrupt Motive Doctrine: criminal conspiracy has to be
motivated by a corrupt motive
1. Malum in se: evil in itself
a. Aside from fact it is illegal, it is also evil (rape,
murder, theft)
2. Malum prohibitum: evil by prohibition
a. A crime where the underlying behavior is neutral
morally speaking. It is wrong because it is illegal.
(driving on left side of road)
3. Powell Doctrine: if the target crime is malum
prohibitum, then you can only be guilty of conspircacy if
you are aware that the act is prohibited. Then Powell is
an exception to the ordinary rule that a direct mistake
of law is not a defense
a. MPC: Doesnt like Powell doctrine
d. Circumstance elements to crimes
i. Circumstance element is a jurisdictional element
1. Agreeing to assault a man dont know is officer
2. Yes conspiracy promotes purposes of conspiracy

14.

a. Protecting society from special dangers inherent

in group activity
b. Allows early action to prevent crimes
ii. Element makes the crime more serious
1. Yes conspiracy
a. Selling drugs vs. selling drugs next to a school
iii. Element is essential to the behavior being criminal
1. Unclear
Pinkerton Doctrine
a. Allows a conspirator to be held liable for crimes committed by coconspirators without government having to satisfy what is needed
for accomplice liability
b. The crime of one co-conspirator can be imputed to the others
i. Each is the agent of the others
ii. Overt act of one conspirator satisfies the conspiracy conviction
for all of them
c. Different situation if the crimes of one could not be reasonably
foreseen as part of the conspiracy
i. Not within the scope or in furtherance of the conspiracy or a

15.

reasonably foreseeable consequence of the conspiracy

d. MPC: Pinkerton is unnecessary and excessive
i. Evidence co-conspirators would be convicted as accomplices
under traditional rules
ii. Prosecutors could overreach the charge to a minor participant
in an offense as Pinkerton says any person in a conspiracy is
guilty of the crimes of anyone else in the conspiracy
Extensions of the Pinkerton Doctrine
a. Reasonably Foreseeable
i. Pinkerton usually used to convict of a substantive crime that
was:
1. Goal of the conspiracy or
2. That substantive crime directly facilitates goal of the
conspiracy
a. E.g. in course of conspiracy to escape from
prison, someone kills a guard

16.

17.

ii. Can be convicted of crime even if it does neither if reasonably

foreseeable given the conspiracy
1. E.g., conspiracy to commit aggravated assault,
reasonably foreseeable murder will result
Scope of Conspiracy
a. If leader want one big conspiracy
i. Avoid multiple conspiracy counts
b. If small guy, want a whole bunch of conspiracy cases
i. Fear of Pinkerton Doctrine, hearsay
Parties

a. Whartons Rule: it is impossible to commit the substantive offense

without cooperative action, no conspiracy.
i. Incest is one of these crimes because it requires a group
action, conspiracy to commit it is not a permissible charge
ii. If a third party asked to use house, conspiracy can apply
b. MPC: Rejects rule
Exculpation
18. Principles of Justification
a. Self-Defense
i. Requirements
1. Reasonably believes
2. Such force is necessary to defend against the other
persons
3. Imminent use of unlawful force
4. And ones own use of force is not excessive
ii. Self-defense is an affirmative defense
1. Doesnt cancel out an element of the crime, it explains
why he intended to kill
iii. Imperfect Self-Defense
1. Defendant used self-defense but the belief was
unreasonable
2. Mitigates down to voluntary manslaughter
iv. Battered Womens Syndrome
1. Can take defendants (battered woman) background
into account

2. Some women dont have anywhere to go, no family, no

money
3. Death threat must be imminent
b. Duty to Retreat
i. Under Self-Defense
ii. If the person has the opportunity to retreat then there is no
necessity to use deadly force
iii. Only applies where the defender is using deadly force some
states
1. Can punch assailant
iv. Some states no duty to retreat in ones own home
1. Some states: does not apply if attacker lives in same
home
2. Treats workplace same as home
a. MPC: have duty to retreat at workplace
v. Initial Aggressor
1. If initial aggressor no self-defense claim available
2. If the initial aggressor makes a good faith effort to
withdraw from the fight and communicates that to the
victim, then aggressor can defend himself with deadly
force.
3. Some states say that person who started fight is initial
aggressor, no matter if the fight is non-lethal
a. MPC: If A started a non-lethal fight, and V
escalated it to a lethal fight, then A can defend
himself with deadly force
c. Necessity/Choice of two evils
i. Affirmative Defense
1. Doesnt negate an element of the crime charged, but
adds an extra factor (in these circumstances, breaking
the law was not wrong)
ii. Reasonable force is justified to avoid imminent injury resulting
from natural (non-human) forces or where an individual
reasonably believes that his criminal conduct is necessary to
avoid a greater harm that would result from compliance with
the law

iii. There is no defense of necessity where the defendant is at fault

in creating the perilous situation
iv. MPC: belief doesnt have to be reasonable, just belief
1. Weight the harms balancing test
v. Prison escapes necessity defense can provided certain
conditions are met:
1. Specific threat of death, rape, or GBH in immediate
future
2. No opportunity to resort to authorities (or a history of
futile complaints)
3. No opportunity to resort to the courts
4. No force/violence toward prison guards or other
innocent people
5. Immediately turn himself in once he has obtained a
position of safety from the immediate threat
vi. Where an innocent life is taken
1. Not permitted where someone killed innocent person
(Dudley & Stephens)
2. MPC: Contrary position; utilitarian approach

19.

a. Less harm to kill one person than four

b. Doctor cannot kill a healthy person for organs to
transplant though
Principles of Excuse
a. Duress
i. Requirements
1. Immediate/imminent threat
2. Of death or GBH
3. That it is reasonable to believe
4. Not applicable to murder (sometimes it was killing on
an innocent person)
ii. MPC: A person of reasonable firmness in the situation would be
unable to resist
1. Only applies to own person or the person of another
iii. Difference between duress and defense of necessity

1. Excuse Duress (I did bad but look at this) v.

justification defense necessity (I didnt do the wrong
thing)
b. Intoxication
i. Voluntary or involuntary intoxication (whether brought about
by alcohol or by narcotic drugs) is a defense to a crime when it
negates the existence of an element of the crime
1. Under the prevailing view, voluntary intoxication may
be a valid defense for a specific intent crime if:
a. it negates the requisite mental state, and may
negate a purposeful or knowing mental state
2. However, voluntary intoxication is not a defense to
general intent crimes and will not negate recklessness,
negligence, or strict liability
ii. Involuntary intoxication is a defense to a crime, even if it does
not negate an element of the crime, under the same
circumstances as insanity
c. Insanity
i. MNaghten
1. At the time of the act charged, the defendant was
suffering some mental disease or defect that produced
one or the other of two results:
a. Defendant didnt know the nature and quality of
the act or
b. Defendant didnt know the act was wrong
2. Burden rests on defendant
ii. MNaghten Plus
1. At the time of the act charged, the defendant was
suffering some mental disease or defect that produced
one or the other of two results
a. Defendant did not know is act was wrong or
b. Defendant could not refrain from the act
iii. MPC: Substantial Capacity
1. A person is not responsible for criminal conduct if, at
the time of such conduct, as a result of mental disease
or defect,

a. he lacked substantial capacity to appreciate the

criminality (wrongfulness) of his conduct or
b. to conform his conduct to the requirements of the
law
2. It is typically easier to establish MPC insanity because it
does not require the total of absolute loss of cognitive
ability or volition, only that the defendant lacked
substantial capacity in these areas.
d. Diminished Capacity
i. Two different kinds of defense
1. Failure of proof: negatives an element of the crime
(mens rea)
2. Affirmative defense: does not
ii. Short of insanity, to prove that, as a result of a mental defect,
the defendant did or did not have a state of mind that is an
element of the offense
1. When pleading diminished capacity, the defense is used
to negate a specific mental state required for the
particular crime
iii. MPC: Permits the negation of the mental state for any crime at
all
1. MPC only allows diminished capacity as a failure of
proof defense
Provision: EMED of MPC provocation is an example of the affirmative type
diminished capacity defense