Вы находитесь на странице: 1из 34


Hofstra Law, Professor Burke, Fall 2008


I. Utilitarianism
a. Basic Principles
i. Purpose of laws is to maximize net happiness of society
ii. Punishment justified only if it is expected to reduce crime
iii. Punishment deters crime - ppl act to please themselves, but only to the extent that their actions will
benefit, not harm them
b. Forms of Utilitarianism
i. General deterrence – punish something to convince the general community to not do it in the future
ii. Specific (or individual) deterrence - Δ's conduct is punished to deter future bad conduct by Δ
iii. Incapacitation - Δ's imprisonment prevents him from committing crime.
iv. Intimidation – remind Δ that if he commits crime again, he will experience more pain.
v. Rehabilitation (or reform) - reform the wrongdoer rather than threatening or punishing them
c. Criticisms
i. Deterrence - using ppl as a means to an end, and ignores the rights of the wrongdoer. Also, you can
justify punishment of an innocent person (b/c it still works to deter; or still works to placate society's
personal vengeance)
ii. Rehabilitation - There is doubt that criminals can be reformed.

II. Retributivism
a. Basic Principles
i. Punishment justified when deserved; deserved when wrongdoer chooses to violate society’s rules.
ii. Always should be punished whether or not will deter future misconduct
b. Forms of Retributivism
i. Assaultive retribution - it is morally right to hate criminals. Criminals hurt society, so ok to hurt him
back. Deters private revenge
ii. Protective retribution - punishment inflicted as means of seeking a moral balance in society.
iii. Victim vindication – punishment evens the score

c. Used as a limit for utilitarian view. Main goal is to deter, but there are limits. Can’t punish for something
not deserved, etc.
i. Consistency - same crime, should be same punishment
ii. Most utilitarians will accept retribution as a limit for punishment
d. Criticisms
i. There's no future benefit
ii. Glorifies anger and legitimizes hatred
iii. Irrational, founded on emotions like anger, rather than reason


I. The Need for Actus Reus

a. Causation by conduct of a harmful consequence. The act required by statute (element of the offense).
i. Must be an act; something more than a guilty mind.
b. Purpose of the act requirement:
i. Person possesses free will – even if they desire to act they may not
ii. Guilty mind may be a poor predictor of future crime
iii. The person hasn’t actually inflicted any harm
iv. Investigations become too intrusive – may start criminalizing associations
v. Hard to prove intent. We would start looking at all conduct and other circumstances to determine
c. Proctor v. State – Δ charged with “keeping a place” with the intent to sell/give liquor. Statute held
unconstitutional. Needs to be both actus reus & mens rea. Mens rea is intent to sell liquor. But there’s no
overt act; the only act is “keeping a place,” which is a lawful act. There needs to be a rational basis for
associating the act with the mens rea (closer relationship between act & mens rea).
d. MPC § 2.01 (1) – A person is not guilty of an offense unless his conduct is based on conduct that includes a
voluntary act or omission.

Past Voluntary Act Specified In Advance By statute

No status Affirmative act Specificity Prospectivity Legislativity
Culpable Statute not No retroactive No judge-made
omission vague lawmaking law

II. Omissions
a. An omission is a criminal act when there is a failure to perform a legal duty (culpable omission)
i. MPC § 2.01 (3) – Liability for offense based on omission only if either the statute says omission is
enough or a duty to perform is imposed by law

b. Jones v. U.S. – Δ took in a friend’s baby & baby dies of malnutrition (neglect). Court says an omission is
culpable when there is a legal duty, not just a moral one. Court identifies 4 situations where a failure to act
is a breach of duty:
i. Where a statute imposes a duty to care for another
ii. Where one stands in a certain status relationship to another
iii. Where one has assumed a contractual duty to care for another
iv. Where one has voluntarily assumed the care of another and so secluded the helpless person as to
prevent others from rendering aid.
III. Possession
a. MPC § 2.01 (4) – Possession is an act if the possessor knowingly procured or received, or was aware of his
control of it for enough time in which he could terminate his possession.
i. Constructive possession – the power and intention to exercise control, or dominion and control,
over an object not in one's "actual" possession
1. Elements are (1) effective power over the thing possessed, and (2) the intention to control it.
2. United States v. Maldonado – Drug delivery supposed to go to Palestino, but he wasn’t there.
So Δ tells deliverer to come to his room, and tries to reach Palestino. Cocaine left in room,
and Δ & deliverer went for a soda. Δ then arrested for possession. Court says possession not
only immediate physical possession, but also constructive possession. Cocaine left in room Δ
was occupying & could easily return at will.
IV. Voluntariness
a. A person cannot be guilty of a crime in the absence of voluntary conduct
i. Martin v. State – Δ arrested from home, taken onto public highway, and charged for being drunk in
public. Court holds that the act element in the statute, that he appear in public, must be voluntary.
Here, Δ was involuntarily taken into public by police.
1. “Time-framing” – if you go far enough back, you can find voluntariness. He voluntarily got
drunk in his home – probably not enough. But if he did something that would reasonably
cause him to be in public, he voluntarily created that situation.
b. Purpose of Voluntariness Requirement
i. Utilitarian - Criminal law cannot hope to deter involuntary behavior.
ii. Retributive - Not fair to make someone liable for actions beyond their control
c. Involuntary Acts
i. MPC § 2.01 (2) – Enumerates which acts are not voluntary (& only these): (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.
ii. People v. Grant – Δ assaults a police officer; his defense is that he suffers from epilepsy/seizure. If
the conscious mind loses control over the body's acts, then the act was not voluntary (unless the
involuntariness was anticipated – Δ acted to cause a situation where it would happen).
1. Anticipating Involuntariness - If there is adequate prior notice of the person's susceptibility
to engage in involuntary conduct, and still acts consciously to cause that behavior, then those
actions are voluntary (widen the "time-frame").
a. People v. Decina – Δ knew he was prone to seizures, and while driving, has a seizure
& kills 4 ppl. The voluntary act is the choice to drive, knowing you’re prone to
seizures. (diff if first time condition – like a heart attack, no warning).
2. Insanity – still voluntary because you’re making a choice to move your body.

V. Prohibition of “Status” Crimes
a. It cannot be a crime to have a “status” of something; there must be an act
i. Robinson v. California – Δ convicted being addicted to the use of narcotics. This is an addiction, a
disease, can't punish someone for that – it is not voluntary.
ii. Powell v. Texas – statute made it a crime to be drunk while in public. This is not a status crime –
doesn’t make the status of being an alcoholic criminal. Rather the act the statute is punishing is being
drunk in public.
iii. Pottinger v. City of Miami – ordinance criminalizes certain activities from being done in public (like
sleeping). Held this is invalid status offense - can't criminalize homeless for their daily activities
performed in public, because being homeless is involuntary and part of their status.
b. Rationales for prohibition against status crimes
i. Involuntary conduct cannot be punished. Being an “addict” is not a voluntary act; it is a status.
ii. Punishment must be for past, not future, conduct. Punishing status because of a propensity to commit
crime in the future.
VI. Principles of Legality – no punishment without law.
a. Legislativity – only legislature can make the law, no judge-made law – courts only interpret the law
i. MPC § 1.05(1) – no conduct is an offense unless it is a crime or violation by statute
b. Prospectivity – Ensure fair notice to Δs so they can conform their conduct to the law. Must be a statute that
defines the crime, ahead of time; no retro-active lawmaking – laws must be applied prospectively.
i. Ex Post Facto—after the fact; a law that makes criminal activity or increases the punishment for a
crime that occurred, or eliminates a defense that was available to the Δ, prior to its passage
c. Rogers v. Tennessee – Δ stabs someone, who dies 15 months later from complications. CL rule where
victim must die within a year & day of incident for Δ to be liable. Court says this rule no longer applicable
because medical science has advanced & they can now tell what caused the death, and abolishes it.
i. Prospectivity - Doesn’t violate because rule is outdated, Δ put on notice it will no longer be used,
most jurisdictions don’t use it anymore, plus because of the reasoning behind it no longer applies.
ii. Legislativity – doesn’t violate because this is a judge-made rule, not a legislative one.
d. Keeler v. Superior Court – Δ assault pregnant wife, intending to and killing the baby. Murder statute
applies to “human beings.” CL idea that human life started at birth. Court held can't change that to include
viable fetuses.
i. Prospectivity – Δ not given adequate notice of change to include viable fetuses; Δ didn’t have notice
that killing the unborn fetus was a crime.
ii. Legislativity - court holds that legislature didn’t intend to include viable fetuses. Only legislature can
make the laws, not courts.
e. Specificity – statute cannot be vague; must be specific enough to give fair notice
i. Chicago v. Morales – ordinance prohibits ppl from loitering in public. Held unconstitutionally
vague. It did not provide sufficiently specific limits on the enforcement discretion of the police (may
encourage discriminatory or arbitrary enforcement), nor did it provide sufficient notice to citizens –
so vague you don’t know what is and isn't illegal.
f. Lenity - If a criminal statute is ambiguous, court should construe statutes narrowly (in favor of Δ)


I. Mens Rea - Guilty mind. Punish proscribed conduct only when accompanied by bad thoughts.
a. Retributive – restrict punishment to those morally blameworthy – those who intentionally cause harm
b. Mens rea requirement is ambiguous
i. May refer to a general precept that punishment depends on proof that Δ acted with a guilty mind, or
ii. May refer to the particular "mental state" the prosecution must prove to establish the Δ's guilt for a
particular crime
c. MPC § 2.02(1): Minimum Requirements of Culpability. a person is not guilty of an offense unless he acted
purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material
element of the offense (exception: strict liability MPC § 2.05)
II. Strict Liability Exception: Malum in se vs. Malum prohibitum

Malum in se Malum Prohibitum

Inherently bad; violation of natural law; always felonies at Bad because legislature prohibits it; regulatory police
CL in any jurisdiction; always recognized as bad power to achieve social order

Strong presumption that you need a guilty mind (mens rea) Strict liability; no mens rea needs to be proven

Crimes that have immediate impact (rape, murder, arson) Not imminent; risk of general public danger

Harm on an individual victim No direct victim – general public

Usually harmful affirmative acts Often culpable omission – statute imposes a duty

Degree of punishment higher (prison); high stigma Degree of punishment lower (fine); low stigma

The higher the punishment, the more necessary is the The lower the punishment, the easier it is to impose
requirement for mens rea strict liability.

a. Types of Strict Liability

i. Substantive strict liability - liability without moral fault
ii. Pure strict liability - liability w/o a culpable mental state with respect to any objective element
iii. Impure strict liability - liability w/o a culpable mental state with respect to at least one such element
b. Strict Liability is an exception to the mens rea requirement
i. Purpose is to achieve a social benefit rather than punishing conduct.
ii. MPC § 2.05. Culpability requirements do not apply when (a) the offense is a violation (b) there is a
clear legislative intent to impose absolute liability.
c. Legislature prohibits to promote public safety. Imposes strict liability for culpable omission.
i. People v. Dillard – statute makes it a misdemeanor to carry a loaded firearm in public. Δ was
carrying a firearm in public, not knowing it was loaded. The mens rea is that he knows he’s carrying
a firearm. The statute imposes a duty to those that do so, to make sure it’s not loaded. Purpose of
statute is to minimize danger, so if you’re going to carry a firearm in public, you have to make sure
it’s not loaded.
d. Inferring or Imputing Strict Liability

i. Look at statute to see if mens rea is an element of the offense. If not, and it is clear legislature
intended to, court will impose strict liability, and no mens rea for government to prove.
1. U.S. v. Balint – statute made it a crime to sell narcotics w/o reporting to IRS. Δ argues he
didn’t know the drugs were illegal (no mental state). Statute imposes strict liability (doesn’t
make knowledge element of offense), so no mens rea to prove.
2. Morissette v. United States – Δ convicted for knowingly converting government property. Δ
knew he took it, but thought it was abandoned property. Statute requires a knowing
conversion – mens rea. No strict liability.
e. Due process restrictions for imposing strict liability
i. Impose strict liability only for violations. Due process requires mens rea to convict for a felony –
because punishment is prison.
1. MPC § 1.04 - distinguishes a violation from a crime. Violation is an offense punishable only
by a fine or other civil penalty. Cannot be imprisoned for a violation. Liability is
indefensible so you can't punish someone by taking away their freedom.
2. United States v. Wullf – statute makes it illegal to sell parts of endangered birds, and imposes
a felony conviction. Δ sold necklace made of talons from such bird, but argues he didn’t
know bird was endangered. Court held that imposing a felony conviction w/o proving mens
rea is a due process violation.
III. Categories of Culpability
a. Common Law – general vs. specific intent
i. General intent – intent to commit any crime makes offender liable for any harm caused. The
unlawful intent would “transfer” to the actual, but unintended result.
ii. Specific intent – need intent for specific harm caused.
1. Certain crimes require proof of specific intent – b/c only crimes b/c of intent to do harm
(crimes involving an unfulfilled purpose, like attempt).
2. Also, CL courts or statute would define certain crimes needing a specific intent element

General Intent Specific intent

Refers more broadly to Δ’s guilt/blameworthiness Refers to the mental state of a crime

A fact that negates general intent is an excuse or A fact that negates specific intent negates the mental
affirmative defense. element of the offense
Actor intends the natural and probable results and the Actor intended a particular result or that actions would
legal consequences of his conduct have a particular legal consequence
With knowledge or recklessness or negligence Purpose

b. MPC § 2.02
i. (1) not guilty of offense unless Δ acted with culpability required by law for each element of the
offense (no strict liability, except § 2.05)
ii. (2) Kinds of culpability:
1. Purposely – conscious objective to get the specific harmful consequences

2. Knowingly – not purpose, but knew it was highly likely to happen, and still acts
3. Recklessly – knows there’s an substantial & unjustifiable risk, and still acts
4. Negligently – should have know of the risk, but didn’t & acted (reasonable person standard)
iii. (3) If statute is silent about mens rea, then culpability is at least recklessness.
iv. (4) If statute provides one standard of culpability, that standard applies to ALL material elements
(unless contrary legislative intent plainly appears)
v. (5) When statute provides culpability, any higher culpability will also suffice to establish it.
vi. (7) Knowledge established if person is aware of a high probability of existence, unless actor really
believes it doesn’t exist.
c. You need to have a separate mental state for each element of the act; [MPC § 2.01(1)]
i. Regina v. Faulkner – Δ sailor on ship goes to steal rum; lights match, which spread and whole ship
caught on fire. No intention to commit arson. Need to prove mental state for arson, either:
1. Purpose - Δ needs to have intended the act (arson) he is charged with; or
2. Knowledge - that it’s a necessary result consequence of another criminal act (theft)
3. Recklessness – the result was a foreseeable consequence of committing another criminal act
d. Knowledge, willful ignorance, and acceptance; [MPC § 2.02(7)]
i. United States v. Jewell - Δ knew that it was highly likely that he was smuggling drugs into the U.S.,
but deliberately avoided positive knowledge to avoid responsibility if discovered. Held that willful
blindness was equivalent to knowledge.
e. Mens Rea Default Rules
i. MPC § 2.02 (1) not guilty of offense unless Δ acted with culpability required by law for each
element of the offense (no strict liability, except § 2.05)
1. MPC § 2.05 - either the offense is a mere violation, not punishable by incarceration, or a
legislative purpose to impose SL for offense or to any material element plainly appears.
ii. MPC § 2.02 (4) If statute provides one standard of culpability, that standard applies to ALL material
elements (unless contrary legislative intent plainly appears)
iii. The Recklessness Default Rule
1. MPC § 2.02 (3) establishes recklessness as the default level of culpability (when statute is
2. State v. Lima - Δ convicted of child abuse for placing a toddler into scalding water in a tub.
Held there has to be some culpable mental state, at the very minimum, recklessness
a. Negligence is an exceptional basis for liability, so it should be excluded, unless
statute explicitly prescribes it.
IV. Mistake of Fact
a. MPC § 2.04
i. (1) Ignorance or mistake as to a matter of fact or law is a defense if:
1. (a) it negates the mens rea required to establish a material element of the offense
2. (b) statute says the ignorance or mistake is a defense
ii. (2) This defense is not available if Δ would be guilty of another offense if the situation was as he
thought it to be. But then, it will reduce the grade/degree of the offense to the one in which he would
be guilty of if the situation was as he thought.
iii. (4) Δ has burden to prove by the preponderance of evidence.
b. Where a statute does not make mens rea an element of the crime, then a mistake is irrelevant. Mistake is a
defense only to the extent that it negates mens rea required by statute (mistake or ignorance of facts that
constitute elements of the offense).

i. Regina v. Prince – Δ found guilty of taking an unmarried girl under 16 out of possession of her
father. Δ thought she was 18. Court said it doesn’t matter, because the statute doesn’t require that it
be committed knowingly. Legislature’s intent that no mens rea required (SL).
c. When statute states a culpable mental state for an element of the offense, it is presumed to apply to every
element of the offense, unless clearly stated otherwise.
i. People v. Ryan – Δ convicted of knowingly possessing 625 mg of a hallucinogen. Δ argues he didn’t
know it was more than the statutory limit. Lower court said “knowingly” only applied to possession,
not the weight. But no - Court looks at statutory language & legislative intent. Says mens rea to
apply to all elements of the offense, unless it is clearly written otherwise (ex: knowingly possess a
hallucinogen, and said hallucinogen weighs 625mg+).
ii. MPC § 2.02 (4) If statute provides one standard of culpability, that standard applies to ALL material
elements (unless contrary legislative intent plainly appears)
d. When a court says a mistake has to be reasonable to assert it as a defense, then the culpable mental state is
i. State v. Guest – statutory rape statute did not specify what level of culpability to attach to the
element of the victim’s age. Can't be SL, need to prove mens rea, because this is a felony. So a
defense to negate the mens rea (mistake) must be allowed. But court says the mistake must have
been reasonable – they are imposing a negligent mental state.

V. Mistake of Law
a. Ignorance of the law is no excuse
i. MPC § 2.04 (1) – ignorance or mistake only a defense if it negates the mens rea required for
elements of the offense.
1. Once gov’t proves mens rea for all elements of offense, they don’t have to prove Δ knew the
law, unless statute requires it. But very few statutes will have a mens rea in regards to
knowledge of or existence of the law – and only then is ignorance or mistake an excuse.
ii. A defense is available where the mistake or ignorance was for specific elements of the offense
(negating mens rea), unless SL. However, the defense is not available where the ignorance or
mistake was in knowing that such elements constituted an offense (ignorance of law no excuse).
1. People v. Bray – Δ convicted of being a felon in possession of a concealable firearm. Δ
argues he didn’t know he was a felon. Being a felon is an element of the offense, and so mens
rea needs to be proven (ignorance of his legal status negates mens rea). Court requires Δ had
knowledge (an honest belief, however unreasonable, negates knowledge). Technically, it a
mistake of law, because it’s a mistake of his legal status – but court departs from requirement
that citizens must know the law (prob also because the district attorney couldn’t even
determine if it’s a felony or misdemeanor).
2. United States v. Baker – Congress enacted statute criminalizing counterfeiting; Δ convicted
of counterfeiting shortly thereafter. Δ admits he intended to sell & knew they were counterfeit
watches, but argues he did not know it was a crime. Court holds that ignorance of the law is
no excuse.
b. Exception: we may excuse Δs who had no fair notice their conduct was illegal [very limited defense]
i. MPC § 2.04 (3): A belief that conduct is not an offense is a defense when:
1. (a) Statute is not known to actor and not been published or otherwise been make reasonably
available prior to the conduct
2. (b) Δ acts in reasonable reliance upon an official statement of law, later determined to be
invalid or erroneous. But only when that statement was contained in (i) a statute/enactment,

(ii) judicial decision/opinion/judgment, (iii) administrative order/grant of permission, or (iv)
an official interpretation of the public officer or body charged by law with responsibility for
the interpretation, administration or enforcement of the law defining the offense.
c. Exception: Where law requires willfulness. Some laws are so complex & difficult to comprehend, so
Congress made specific intent (purpose) to violate the statute an element.
i. Cheek v. United States – Δ charged with willfully failing to file tax returns, & willfully attempting to
evade income tax. Tax law complex, so willfully means with purpose; gov’t needs to prove law
imposed duty on Δ, Δ knew of the duty, & Δ intentionally violated law.
1. This is a crime of omission. Impossible to be aware that law imposes a duty if you believe no
such duty exists. Δ’s honest beliefs don’t have to be objectively reasonable (imposing
purpose as mens rea for knowing the law).
a. So, a subjective misunderstanding of the law is a defense, Δ not believing he had a
duty to pay taxes is a defense (Δ mistakenly believed wages are not income, & he was
not a taxpayer within meaning of IRS code).
b. However, disagreement with the law is not a defense. Δ’s belief that tax laws are
unconstitutional is not a mistaken belief – he knew he had to pay them &
intentionally did not.
ii. MPC § 2.04 (1) (b) statute says the ignorance or mistake is a defense
VI. Capacity for Mens Rea
a. Mental Defect - Evidence of a mental defect that is relevant to prove that the Δ lacked the capacity for
mens rea must be admitted for due process (otherwise, gov’t not establishing burden BRD)
i. Hendershott v. People – Δ convicted of assault, and argues the defense that he has a brain
dysfunction, so he lacked the requisite culpability. Lower court denied evidence, saying statute only
requires general intent. Court held that denial of this evidence violated due process because it created
a presumption of culpability (need specific intent for this statute).
1. “Time-framing” - However, he was drunk, and if that caused the mental disorder to show,
then he could be guilty b/c of conscious choice to become intoxicated (if mens rea is
ii. MPC § 4.02(1) says, "Evidence that the Δ suffered from a mental disease or defect shall be
admissible whenever it is relevant to prove that the Δ did or did not have a state of mind which is an
element of the offense.
b. Insanity – presumption of sanity; affirmative defense of insanity
c. Voluntary Intoxication – intoxication is not a defense unless it negates an element of the offense.
Intoxication is not a defense for recklessness.
i. People v. Del Guidice - held that self-intoxication was not an affirmative defense to 2nd degree
murder, and not allowed to be admitted in order to negate the culpability element of "knowingly."
this is because voluntary intoxication is a condition that can be avoided by conscious choice, which
is different from other medical conditions, where there is no choice.
ii. State v. Cameron – Δ convicted of assault, and argues defense of intoxication. Court holds that
intoxication is a defense, but only if it negates an element of the offense.
1. At CL, voluntary intoxication was a defense only when it negated specific intent. Court
describes specific intent as purpose or knowledge, and general intent as recklessness or
criminal negligence. Therefore, intoxication defense only applies when it negates purpose or
knowledge, but not recklessness or negligence.
iii. MPC rejects the specific/general distinction.
1. MPC § 2.08 (1) – intoxication is not a defense unless it negates an element of the offense
(culpability/mens rea)
2. MPC § 2.08(2) – Intoxication is not a defense if culpability is recklessness, if the actor, b/c of
the voluntary intoxication, is not aware of a risk he otherwise would have been aware of.

a. State v. Warren, - court says as a matter of logic, intoxication that negates purpose or
knowledge should also negate recklessness. However, as a matter of policy,
intoxication is not a defense for recklessness.
iv. Montana v. Egelhoff (1996) – state legislature clearly intended to prohibit any evidence of voluntary
intoxication when offered as a defense; Δ convicted of purposefully & knowingly causing death.
Since gov’t must prove BRD, is statute unconstitutional?
1. O’Connor (4Plur) – unconstitutional b/c prohibiting evidence used to negate a mental state,
when statute requires a mental state, violates due process – b/c it presumes mens rea.
2. Scalia (4Plur) – up to legislature to write rules of evidence; ok to prohibit for policy reasons.
3. *Ginsburg (swing) – Agrees with O’Connor about needing to BRD mens rea, but says statute
is permissible. No due process problem b/c gov’t required to prove BRD all elements of the
offense – but this requirement depends on what the legislature defines is the offense. State
legislature has the authority to identify the elements of the offense it wants to punish, &
exclude evidence irrelevant to the crime it defined. Up to legislature to define the scope of


I. Murder, In General
a. Common Law Murder
i. Murder requires malice – murder is an unlawful killing with “malice aforethought.” Malice
aforethought describes a cluster of criteria that distinguishes murder from manslaughter.
1. Intent to cause the death of another – unless negated by mitigating circumstances, i.e.,
2. Intent to cause serious bodily injury, which causes death of another (w/o intent to kill)
3. Depraved indifference to human life/ abandoned and malignant heart – extremely reckless
conduct which does cause the death of another
a. At CL, this is 2nd degree murder
4. Felony Murder – willingness to take even a small risk of death where the risky conduct is so
unworthy as to establish guilt of a serious felony
b. Common Law Gradations – Reasons for gradation is the punishment – the difference is premeditation.
i. Murder 1stº - both intentional and premeditated, or felony murder
1. Prison at least 15 yrs up to life sentence, w/ or w/o possibility of parole.
2. Death penalty – only crime it’s theoretically possible for is Murder 1stº, when it’s prosecuted
as capital murder (where prosecutor seeks death penalty).
ii. If intentional, but not premeditated, its Murder in 2ndº
1. Prison 5-15 yrs.
c. Murder & the MPC

i. No distinction between 1st and 2nd degree murder. The line to decide if there’s premeditation is very
thin. And it will mean the difference between life and death.
ii. MPC § 210.2 - criminal homicide is murder when:
1. Purpose to kill or knowledge
2. Extreme recklessness
d. Causation – but for; proximate cause.
i. Usually not an issue in crim law – prosecutors not motivated to go into causation. Usually pretty
ii. More important in torts, b/c going after person with $, not person directly causing harm.

II. Manslaughter, In General

a. Manslaughter is an unlawful killing without malice
i. voluntary manslaughter - an intentional killing that lacks malice because the killer either acted in the
heat of passion after "adequate provocation," or acted in the honest but unreasonable belief that the
killing was necessary for self-defense
ii. Involuntary manslaughter - a killing committed recklessly or highly negligently.
1. Sometimes states break down involuntary manslaughter:
a. Reckless manslaughter
b. Negligent homicide (slightly less serious than reckless manslaughter)
c. Vehicular manslaughter
d. Misdemeanor-manslaughter - analogy to felony-murder - causing death by risking
fatal harm where the underlying act establishes guilt of some misdemeanor


I. Intent
a. Gov’t has burden to prove intent (mens rea) beyond a reasonable doubt
i. Francis v. Franklin – During event following Δ’s taking of a hostage & escape from custody
(prisoner), a shot he fired kills an individual on the other side of the door. Δ claims it was accidental,
not intentional.
1. Jury instruction said that "the acts of a person of sound mind and discretion are presumed to
be the product of a person's will,” and that the person is “presumed to intend the natural and
probable consequences of his acts,” [presumptions may be rebutted by Δ].
2. Jury Instruction is unconstitutional – creates a mandatory presumption of intent (mens rea),
and so are shifting the burden to disprove intent (mens rea) to the Δ. This is unconstitutional
b/c it relieves the gov’t of their burden to prove BRD.
a. But Court further notes it would be constitutional to have a permissible inference –
say jury permitted to infer intent. Prof says may still be unfair though; good jury
instruction will be very neutral.
b. The Meaning of Intent
i. MPC § 210.2(1)(a) - purposeful and knowing homicides are classified as murder. Under MPC 2.02,
purposeful and knowing refer to the actor's subjective state of mind. So, you can't presume that a
person intends the natural and probable consequences of his acts. However, the requisite mens rea

can be proven via circumstantial evidence, and a finding of purpose or knowledge may be a
permissible inference from the conduct and circumstances.
c. Transferred Intent
i. If Δ purposefully shoots to kill A, but misses and kills B, Δ is guilty of intentionally killing B. Δ
intent to kill A is transferred to his unintended killing of B.
d. CL 2nd degree murder: unlawful, intentional killings, but lacks premeditation & deliberation (which is a
difficult distinction to make, so MPC rejects categories of 1st & 2nd degree murder)

II. Premeditation & Deliberation

a. Common Law Distinction - At CL, there’s a distinction between 1st and 2nd degree murder.
i. 1st degree murder is homicide with malice aforethought that is willful, deliberate and premeditated
(or if felony murder rule applies). The culpability requirements are subjective.
1. Willful – must be intent to kill
2. Deliberate – Δ possessed of a cool mind, capable of reflection
3. Premeditated – Δ must have reflected before acting. Look at duration of time between
formation of idea and the actual killing.
b. Duration – Some appreciable time must elapse, but there’s no specific amount of time necessary to
demonstrate premeditation & deliberation.
i. United States v. Watson – Officer pursuing Δ for stealing a car. Δ ran into an apt, made phone call,
and waits for the officer. Officer arrives; Δ resists arrest, fights with officer, & takes gun. Instead of
escaping, the Δ shot the officer while he was on the floor. Officer twice told Δ that "it wasn’t worth
it," but Δ ignored and still killed him (timing: 16-20 seconds lapsed in interim).
1. Held there was sufficient circumstantial evidence for jury to infer Δ acted with premeditation
& deliberation (so it’s 1st degree, rather than 2nd degree murder, at CL).
2. Some appreciable time must elapse between formation of the design to kill and the execution
of the design, but that time need not be long. From facts here, court holds that there was
sufficient time for Δ to think about what he was doing.
3. There’s no legal minimum of time necessary - Duration required is not just quantitative, but
also qualitative.
ii. State v. Bingham (1986) - Δ strangled a mentally retarded woman to death. Lower court found
premeditation b/c strangulation lasted at least 3 minutes. Reversed, both the time for and the fact of
deliberation are required; a reasonable jury cannot infer deliberation simply from the length of time.
c. Evidentiary Factors Showing Premeditation
i. Earlier hostility between the Δ and the victim
ii. Self-interested motive
iii. Manner & circumstances of the killing (interruption and subsequent continuation of the killing)
iv. Δ's behavior before the killing (stalking victim)
v. Origin of the murder weapon (Δ bringing the weapon with him)
d. Deliberation vs. Premeditation
i. Premeditation - a design, a determination to kill, distinctly formed in the mind at any moment before
or at the time of the killing.
ii. Deliberation – process of determining whether to kill, including weighing reasons for and against &
considering consequences. Must not be formed in passion.
e. Mental Disorder

i. Commonwealth v. Gould (1980) - Δ convicted of 1st degree murder; he was diagnosed as a paranoid
schizophrenic, and believed he was killing her justly; Δ pleads insanity. Held Δ can offer evidence of
mental condition to show that although intentional, Δ unable to premeditate the killing.


I. Rationale for felony murder

a. Utilitarian - Deterrence
i. Felony-murder rule raises the stakes – deter prospective criminals from committing those
dangerous/predicate felonies. Criticism to this is that statistics says low probability of death during
felonies. Also may not deter b/c don’t think they’re murderers – usually the killing it’s accidental.
ii. However, it may induce would-be felons to commit those felonies safely.
b. Retributive
i. Just as culpable - The felony itself establishes that the Δ acted with the same sort of mens rea as for
murder - gross recklessness or "wanton indifference." The intention to commit a felony is as
"malicious" a mental state as the intention to kill.
ii. Criticism – like a SL rule. But w/o culpable mens rea, Δ doesn’t deserve a murder charge.
1. Justification – knowingly creating risk of death during felony is more culpable than
knowingly creating a risk of death during an innocent or less culpable act. Also, look at the
extent of Δ’s willingness to impose a risk on others, and the moral worth of the purpose
which poses the risk (immoral purpose).
c. Why want felony murder? Easier to prove, b/c gov’t doesn’t have to establish mens rea for murder BRD.

II. Felony Murder

a. Mens rea & felony murder - felony murder holds actor liable for murder even though no mens rea - no
actual intent to murder, only for the felony. Very unusual rule – where we don’t need mens rea, but it has
become accepted – the norm.
b. Common Law vs. MPC
i. At CL, if the victim died during course of a felony, Δ guilty of the murder. Originally thought of as
transferred intent, but more recently viewed as strict or absolute liability.
ii. MPC § 210.2 (1)(b): Criminal homicide is murder when it is committed recklessly under
circumstances manifesting extreme indifference to human life. Such recklessness & indifference are
presumed if the actor engaged or is an accomplice in the commission of, or an attempt to commit, or
flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force
or threat of force, arson, burglary, kidnapping, or felonious escape.
1. So although MPC requires mens rea of extreme recklessness, this is presumed if death results
from one of the predicate felonies felony.
iii. Felony murder can be very harsh, so there are limitations. Most states have a felony murder rule.

II. Limiting the Predicate Felonies

a. Predicate Felony - The range of felonies that can serve as “predicates” for murder liability. Means the
felony is sufficiently dangerous per se that a person committing it can be viewed as accepting the risk of
murder liability. Can be enumerated by statute and/or statute can say dangerous felonies.

b. Enumerated by Statute – specifically lists which felonies can serve as predicates for murder liability. The
MPC lists only the following: robbery, rape, arson, burglary, kidnap, felonious escape.
c. Dangerous Felonies – Which felonies are dangerous?
1. In the Abstract (more common) – so inherently dangerous that death is a foreseeable result.
a. Ask whether felony dangerous in abstract – don’t look at specific facts of the case. Judge (not
jury) decides – this is law, whether or not dangerous in abstract.
b. Look at the statutory elements of the felony to see if it’s dangerous – consider the least
dangerous means of committing the statutory offense in the abstract.
c. Reason for looking in the abstract – b/c every case that the court will consider, there was a
killing. That fact may lead to the conclusion that it's inherently dangerous - this broad
application may be unfair.
2. In the Commission (very few jurisdictions do this) – look at in abstract plus the specific
facts/circumstances of the case to determine whether the felony is dangerous.
a. State v. Chambers (1975) - Δs stole a truck, drove w/ no lights, drunk, and swerved wildly
into oncoming traffic; killed 4 ppl. Felony murder is felony was dangerous. In the abstract,
stealing a car is not inherently dangerous. But court looks at in the commission – felony
committed dangerously, here.
b. Problem with this approach: if court is looking at felony murder, then it means someone died
as a result of the felony. This probably means the felony was carried out in a dangerous way
in that particular case. So it will always be a dangerous felony – not much of a limitation.

III. Other Limitations to Felony Murder - To limit felony-murder liability, the court may require a
close causal connection between the felony and the resulting death.
a. Foreseeability - Death must be a probable consequence (foreseeable) of the commission of the felony.
Refers to the risk of death created by the felon's acts
1. MPC meaning of probable consequences – like foreseeability. Some deaths that occur in the course
of a felony are too remotely related or accidental to warrant holding the actor liable.
a. Too remote – bank robber comes in, employee pushes 911 button, gets electrocuted.
b. Not too remote & a foreseeable consequence – Δ robs store, shopkeeper fires at Δ, but kills
innocent bystander.
2. Multiple-perpetrator felony, the focus should be on the relationship between the victim's death and
the felony, not the individual roles of the felons.
a. During robbery, all perpetrators liable for death caused in furtherance of the felony, unless
not foreseeable.
b. Proximate Cause - Death has to be proximately caused by the felony; couldn’t have been too remote or
accidental. The felon must directly “kill” rather than merely somehow causing death.
i. State v. Martin – Δ at party; drunk & high. Δ & friends cause trouble & kicked out. Δ sets fire to a
garbage can, it spreads & someone dies. Δ claims he was only trying to make a mess of the garbage,
but didn’t intend for fire to spread (other evidence suggests he set it by spreading kerosene between
ground floor & 2nd floor though, so that looks intentional). \
1. Held that court must instruct jury that Δ would not be liable for felony murder if the death
was “too remote, accidental in its occurrence, or too dependent on another’s volitional act.”
2. Note: If not felony murder rule, gov’t prob would not be able to prove the mental state for
murder, and possibly not even manslaughter.
c. Limit the Scope of the felony – death be caused "in the commission" or in "furtherance" of the felony.
i. Immediate Flight – Concept of time & proximity of death to the felony (can't be too far away). Δ
must have been in immediate flight from the felony (jury decides, standard-based).
1. Facts relevant to determine whether Δ was in immediate flight:
a. Location - how far away they got
b. Time - how much time has lapsed? 10 min vs 3 hours

c. Still holding onto fruits of crime
d. Whether police were chasing them the whole time
e. Whether or not Δ had reached a temporary safe place (not immediate flight)
2. People v. Gladman – Δ robbed a deli, & walked away through neighborhood. Police notified
& are looking for Δ. Δ in parking lot, sees an officer, hides under a car. When officer
approached the car, Δ got out & shot him.
a. Court doesn’t lay down rigid standards (rule-based approaches), but says jury should
look at all the circumstances. No single factor conclusive & list not exclusive. Holds
that a jury could have found, under these circumstances, that Δ was in immediate
flight – Δ has cash & is escaping; hasn’t reached safety; police looking for him.
ii. Res Gestae Theory – (rule-based) No felony murder if killing occurred after Δ reached a safe place;
it’s determinative. Even if felony is over, if felon hasn’t reached safety, still felony murder.
iii. Felony has to be Continuous – (rule-based) If they drop the loot, felony is over. Now only trying to
escape. If still carrying the loot, felony still in progress.
iv. The "purposive scope" of the felony – instead of looking at the time period, look at the
purpose/reason for committing the felony – is that over yet?
1. Stouffer v. State - Δ & accomplices decides to attack a police informant to scare him. They
kidnap him, and stab & beat him, then leave him on the side of the road, where he eventually
dies. Court holds felony murder doesn’t apply b/c the intent wasn’t a felony (kidnap), but
rather to inflict serious bodily harm in a reckless & dangerous manner with indifference to
the consequences – so must be charged with murder.
d. Agency theory - Limit by focusing on who did the killing
i. Act causing death must be committed by a participant in the felony - & has to be the immediate
(proximate) cause of the killing.
1. People v. Washington - Δ & co-felon rob and gas station, and the gas station's owner shoots
& kills the co-felon who had pointed a gun at him. Court held that it was not enough that
there was a reasonably foreseeable risk of death, making the robbery the proximate cause of
the killing. Rather, it must be a felon or accomplice that actually commits the killing. Court
also says wouldn’t be fair to hold felon liable for acts of 3rd parties, b/c not based on their
own conduct & they can't control that.
2. Note that you can still impose murder liability if felon indirectly causes death (like by
initiating a gun battle), showing they had an abandoned & malignant heart.
a. Taylor v. Superior Court (1970) - co-felon killed by shopkeeper after co-felon
provoked gunfire. Can’t use felony murder, b/c death not caused by participant in the
felony. However, still sufficient evidence of abandoned & malignant heart murder –
they created a situation that showed a conscious disregard for human life. Waiving
guns around, shooting – predictable someone may be killed.
ii. Reasons for the Agency theory
1. Felony-murder ascribes malice to the felon who kills in perpetration of an inherently
dangerous felony. If killing committed by 3rd party, can't attribute the malice to the felon.
2. Purpose is to deter felons from committing felonies dangerously by holding them strictly
liable for deaths. This purpose isn't served by punishing for killings not committed by them.
a. However, if we hold felons liable for acts of 3rd parties, felons will try to commit
felonies both safely, and also in a way that doesn’t provoke those types of responses.
e. Innocent Victims – Limit by focusing on who is the victim. The person killed must be an innocent, not a
participant in the felony.
i. Felony murder applies when an innocent is killed during the commission of a forcible felony even
though the killing was not actually done by a participant in the felony.
1. People v. Hickman – Δs commit burglary & police are chasing them. An officer is shot &
dies, by another officer, who mistakenly believed he was one of the perpetrators. Held felony
murder can apply. It’s foreseeable that this might happen.
ii. Felon as a victim

1. Court in Hickman also notes that felony-murder doesn’t apply against a surviving felon when
a co-felon dies during the commission of a forcible felony. Not b/c co-felon assumed the risk;
rather, b/c the killing was justified, and no need to hold someone responsible.
a. People v. Morris - Armed robbery, gunfire erupts, and a co-felon is killed. Felony
murder doesn’t apply when victim was a co-felon.
2. However, distinguish with when a felon kills a co-felon:
a. People v. Cabaltero - during robbery, Δ shoots co-felon intentionally. Felony murder
for other co-felons applies, "irrespective of the status of the person killed, and
regardless of whether the killing is accidental or intentional."
b. Court distinguishes from People v. Ferlin - Δ not held liable for death of co-felon
where co-felon, in commission of arson for insurance fraud, accidently burned
himself to death outside of Δ's presence; Court said co-felon basically killed himself.

IV. The Merger Doctrine – another limitation of felony murder. Not an exception, but goes along w/ it.
a. The merger doctrine comes into play when statutes don’t have just enumerated predicate felonies, but says
dangerous felonies apply. Basically - the rule is that assault can't be a predicate felony b/c it merges with
b. State v. Shock – Δ beat a child pretty badly, and the child died. Charged w/ 1st degree murder.
i. Only 1st degree murder at CL if premeditated or felony murder.
1. Need malice for murder. Prove malice here by either intent to do serious bodily injury, or
abandoned or malignant heart (or felony murder). But, since no premeditation, not 1st degree
murder, only 2nd degree.
ii. So, they try to apply felony murder, but court rejects this. Can't use assault as a predicate felony.
1. The predicate felony is the assault with intent to commit a great bodily harm. Problem is that
the felony necessarily merges with the homicidal act.
a. Can't do this b/c then gov’t can take involuntary manslaughter (a felony), and make it
1st degree murder using the felony murder rule. Basically, everything becomes
b. Felony murder is unusual – no mens rea. Concept of felony murder is that the mental
state & the willingness to commit a predicate felony is a form of indifference to
human life.
2. So, the predicate felony has to be independent from the homicidal act.
a. Independent purpose for committing the felony – not tied with intention to hurt the
victim. Something that serves as a proxy for malice.
c. Exception to the merger doctrine:
i. Δ assaults A, & B comes to help A. Δ shoots B. B’s killing was a separate independent act, so you
can use felony murder for B’s killing.
1. However, if you intend to shoot A, miss & shoot B, can't use felony murder. But remember
you can use transferred intent to prove murder otherwise.


I. Theory of Mitigation – Still an unlawful, intentional killing, which would be 2nd degree murder, but b/c
some extenuating circumstances negates malice, so it’s mitigated to voluntary manslaughter
i. Reasons to reduce an unlawful intentional killing from murder to manslaughter
1. Provocation without cool down

2. When there is an unreasonable and mistaken belief that he must kill in self-defense
3. When Δ kills in the face of an actual threat of death or serious injury where he himself was the
initiator or provoker of the threat from the victim (otherwise self-defense)
ii. People v. Walker – drunk victim approaches Δ, demanding they gamble. Δ refuses, victim gets violent, &
fight ensues. Δ throws brick at victim, who falls down. While down, Δ takes victim’s knife, and cut his
throat, killing him.
1. There was an intent to kill, but provoked. At CL, provocation negates malice. So no longer 2nd
degree murder; it’s mitigated to voluntary manslaughter.
2. Self-defense:
a. Throwing of brick would have been self-defense. Victim no longer dangerous, but Δ still cut
his throat, so still liable.
b. Unreasonable belief that killing necessary for self-defense also mitigates.

II. Rationale for Mitigation

i. Partial Justification - provoked killer thinks he has a good reason to kill; we still want to deter b/c not fully
justified, but mitigate b/c don’t want to punish same as murder
1. Retributive - deserves some punishment, but not as much as an unprovoked killer. Not as wrong as a
murder of an innocent (vs. here victim asked for it.
2. Utilitarian - don’t want to deter all action, still want ppl to self-defend, but still want to deter them
from going too far.
ii. Partial Excuse - provoked killer is less culpable - so enraged his actions were slightly less voluntary
1. Retributive – Δ’s action not reflective of their character. They were out of control, didn’t intend.
2. Utilitarian - less deterrable because Δ didn’t think it through (rage from provocation); also less
dangerous in general, b/c partly an external force that motivated the killing.

III. Burden of Proof - The key is that provocation negates malice. So,
i. If statute says gov’t has to prove malice, they also have to prove there was no provocation.
1. Mullaney v. Wilbur (1975) – not in casebook. In ME, murder required malice. Statute defined malice
as deliberate & unprovoked cruelty. Jury instruction said: Δ presumed to act w/ malice unless Δ
proves provocation – shift burden to Δ. No good b/c statute defined malice as unprovoked cruelty, so
gov’t had to prove it.
ii. If statute says all intentional homicides are murder, then ok to shift burden to Δ to prove affirmative
defense of provocation.
1. Patterson v. NY - Statute provided all intentional homicides are murder; provided an affirmative
defense of provocation. Jury instruction says gov’t proves intent, but Δ’s burden to show
provocation. This is good b/c statute says provocation is an affirmative defense.

IV. Provocation
i. The Meaning of Provocation: CL required elements
1. Objective - a reasonable person would think the provocation to be adequate
a. Provocation is adequate if it would cause a reasonable person to lose his self-control
b. Words alone never sufficient provocation
2. Subjective - Δ must have actually been provoked; the Δ's state of mind – Δ acted in the heat of
ii. Common Law Categories

1. “Rule-based” -specifies which events are sufficient provocation
a. Adultery
i. Rowland v. State – Δ catches wife committing adultery; means to shoot the guy, but
kills her instead. The killing reduced to voluntary manslaughter b/c the CL stated that
adultery is adequate provocation.
b. Physical assault or attack on Δ (not including self-defense) or Δ's family member
c. Mutual combat - thought to be mutual decision to fight to the death
2. These are about pride/honor. Not about force necessary. Being a man, necessary to protect price (old-
fashioned male pride). It reflects the times. Adultery would be considered the highest invasion of a
man's property, only small punishment for the killing.
iii. Modern Reform – Standard based – standard of reasonableness
1. People v. Berry – Wife tells Δ she’s fallen in love w/ another man & wants a divorce. Wife continues
to taunt him, talking about other man, demanding sex then rejecting him. Start arguing, Δ in
uncontrollable rage & strangles her to death. Relevant that psychologist said wife is suicidal – shows
she was doing it on purpose, trying to provoke him.
a. Evidence shows killing done on heat of passion, & although there was cooling period, court
notes that there was a long course of provocatory conduct by wife, reaching a culmination
during argument. Court holds Δ needs to get an instruction as to provocation, for jury to
decide whether the provocation was sufficient to invoke passion in a reasonable person
2. MPC § 210.3 (1)(b). It’s manslaughter when a homicide which would otherwise be murder:
a. is committed under the influence of extreme mental or emotional disturbance for which there
is reasonable explanation or excuse.
b. Reasonableness determined from the viewpoint of a person in the actors situation under the
circumstances as he believes them to be.
i. Still an objective test that the disturbance needs to be reasonable. But who is
reasonable? Very subjective. The reasonableness determined from Δ's viewpoint, and
the circumstances.
3. Cool down under EED (extreme emotional disturbance) – Whether Δ was reasonable in still being
inflamed (objectively reasonable, but from Δ’s perspective – how he believes circumstances to be).
4. Advantages & Disadvantages of using a standard-based approach:
a. Disadvantages
i. Uncertainty - outcome diff depending on what jury thinks is reasonable.
ii. Also, can we trust juries? If not, outcome may be unfair.
b. Advantages
i. May be fairer because it takes account of all circumstances that are sympathetic, but
would have been left out of CL categories.
V. “Cooling Time” –The longer the time goes by after being provoked, the less likely you’re out of control
of your facilities (passion subsides), and the more it looks like premeditation rather than heat of passion.
i. Cool down is both objective and subjective
1. Objective – would a reasonable person cool down
2. Subjective – did the Δ actually cool down (was he no longer in heat of passion)
ii. Ex Parte Fraley – Parker acquitted of killing Δ’s son. 9 or 10 months later, Δ sees Parker standing outside a
drugstore, walks up to him, says hello & shoots him, saying it’s revenge for killing his son. Court holds that
9-10 months after provocation was sufficient cooling time for a reasonable man.
iii. When does the provocative event occur? - Sometimes, if cool down period too long, may want to re-define
what the provoking event is, then establish if that event was reasonably provoking

1. People v. Nesler (1997) - Δ's son was sexually assaulted. During criminal prosecution, he allegedly
smirked at Δ & her son. Δ lost it, & killed him. Provocation re-defined to be when he smirked at her.
iv. Gradual Provocation
1. State v. Gounagias (1915) - deceased sodomized the unconscious Δ, then brags about it all over
town, for many weeks. Δ was taunted and ridiculed, until he finally lost control and killed him 2
weeks after the sodomy.
a. Court rejects Δ's theory of cumulative provocation. Either you snap or you don’t. If Δ
snapped, must have been when he was sexually assaulted.
b. Taunting/bragging as provocation gets around cool down problem. But at CL (& many states
today), words alone are not enough to provoke, unless words convey something that counts
as provocation.


I. Involuntary Manslaughter
a. Ordinary Recklessness
i. Commonwealth v. Welansky – Δ owns a nightclub, and fire breaks out in the overcrowded club;
emergency exits were blocked/locked & 500 ppl died. Δ was not there (sick in hospital).
1. Involuntary manslaughter b/c he was reckless. Recklessness need not be an affirmative act –
omission b/c he had legal duty by inviting them onto his premises, so has a duty to keep them
safe. Δ intentionally failed to make emergency exits passable (fear of ppl leaving w/o paying)
– this is reckless.
2. Prof says this sounds more like negligence. But the distinction here is the gravity of danger.
The gravity of danger is very high here if a fire does start (flammable furniture, blocked
exits, poorly designed exits).
ii. MPC § 210.3 (1)(a): Criminal homicide constitutes manslaughter when it is committed recklessly
1. MPC § 2.02 (c) defines reckless: Δ acts recklessly when he consciously disregards a
substantial & unjustifiable risk (a risk which involves a gross deviation from standard of
conduct a law-abiding person would observe in the actor’s situation).
a. MPC requires that Δ subjectively knew of the danger of death.
iii. “Wanton or Reckless” Standard
1. Commonwealth v. Levesque (2002) – homeless Δs living in abandoned warehouse. They
negligently start a fire & run out of building. They don’t call 911 even though had many
opportunities. Fire got really bad, & finally firefighters responded, and 8 died. Evidence that
if they had called early on, fire would have been more manageable & no deaths.
a. Court holds that where Δ creates a life-threatening risk, there’s a duty to take
reasonable steps to alleviate the risk. Reckless failure to fulfill the duty can result in
charge of manslaughter. Δ’s charged with knowledge that failure to act would cause
substantial harm, but still did nothing. Δs acted wanton & reckless.
iv. Reckless vs. Negligent - many jurisdictions treat recklessness and gross negligence as equal or
alternative bases for involuntary manslaughter, but MPC distinguishes the 2 - requires recklessness
for manslaughter but provides a lesser homicide crime for which negligence is enough.
1. MPC § 2.02 - Δ acts recklessly if he knows there’s a substantial & unjustifiable risk, and still
acts. Δ acts negligently if he should have know of the risk, but didn’t (reasonable person

b. Criminal Negligence
i. State v. Williams – Δ’s baby sick, but didn’t bring to doctor for fear Welfare would take away baby.
Δ thought child had a toothache & that it would go away. Convicted of manslaughter for negligently
failing to supply child with necessary medical attention.
1. At CL, for involuntary manslaughter – gross negligence required. But WA statute says
voluntary or involuntary manslaughter when death is a proximate result of only simple or
ordinary negligence (NOT the norm).
2. Simple or ordinary negligence - failure to exercise the "ordinary caution" necessary. Ordinary
caution - where a man of reasonable prudence would exercise under the same or similar
conditions. Applying standard of ordinary caution, Δ’s sufficiently out on notice of baby’s
condition & reasonable person would have gone to doctore.
ii. The Reasonable person in social context
1. WHO is the reasonable person? Should the same standards have applied here? Δs were part
of an insular minority that has suffered discrimination.
a. 6th grade education
b. Fear child being taken away (Native-American norms)
i. Statistics - 25%-35% of Indian children are separated from their families by
Welfare Services. Usually not because of physical abuse, but because of
differing social customs and norms, welfare thinks children are being
abandoned. So, parents worries that child might be taken away are reasonable
in that culture
c. There are characteristics specific to these people. Does this matter?
2. There's no definitive view of this.

III. Extreme Reckless Murder

a. Mens rea - reckless, abandoned and malignant heart
b. Quintessential examples of extreme reckless murder:
i. Russian roulette
ii. Shooting into a crowd of people
iii. Dropping a brick off a building onto a crowd of ppl
c. Extreme Indifference and Gross Recklessness
i. MPC § 210(2)(c): Murder when "committed recklessly under circumstances manifesting extreme
indifference to the value of human life."
1. Extreme Indifference Recklessness (murder) presupposes an awareness of the creation of
substantial homicidal risk, a risk too great to be deemed justifiable by any valid purpose that
the actor's conduct serves. Choose to be reckless for no redeeming purpose. Flirting with
death - no other reason than entertainment - there is an abandoned and malignant heart.
2. Ordinary recklessness (manslaughter) - Whether actor's conduct departs from acceptable
behavior that it constitutes a "gross deviation from the standard of conduct that a law-abiding
person would observe in the actor's situation." It’s inadvertent recklessness, recklessness
weighed against some other reason.
ii. Act vs. Omission - easier to find an abandoned and malignant heart is someone actually acts, rather
than not acting (omission of duty – Welansky)

iii. Felony Murder & the MPC - Such recklessness is presumed if actor engages in enumerated acts
Only certain felonies rise to this level of extreme indifference to human life.
iv. Why should we punish these people for murder and not for manslaughter? Why is there a difference?
There is a notion of malice, which can be proven in different ways. They see it as an equivalent to
d. Mayes v. People – Δ, drunk, cursing at wife, says he should kill her. He throws a beer glass at her, which
broke the lit oil lamp she was holding. Burning oil scattered all over, but Δ made no effort to help her; she
later dies from those wounds. Witnesses said he threw the glass at her with a vengeance. Δ claims he only
intended to throw glass at the door and it accidently hit her.
i. At CL, Murder requires malice. Malice implied when no considerable provocation appears, or when
circumstances show an abandoned or malignant hear.
1. Intent to do serious bodily injury – mens rea for murder
2. But even if Δ is to be believed, jury could believe that Δ acted from general malicious
recklessness, disregarding the consequences. Whatever his intent, he must have known the
high probability he would injure her, so is responsible for the result. The circumstances show
an abandoned & malignant heart.
ii. Intent to do serious bodily injury - CL definition of murder allowed intent to do serious bodily injury
to substitute for intent to kill.
e. Intoxication
i. Although intoxication is sometimes admissible to negate a required "specific intent," the MPC
virtually forbids the use of intoxication testimony to negate a mens rea of recklessness where the Δ,
if sober, would have been aware of the risk perceived.
ii. This rule may also apply to "grossly reckless" murder. State v. Dufield said that even though
"extreme indifference" required a higher mental state than reckless manslaughter, the point was that
there was a more extreme degree of divergence from law-abiding conduct rather than looking at a
subjective state of mind. This is objectively measured.


Common Law MPC

No distinction between 1st and 2nd
Premeditation*** Degree murder

1st Degree Murder

Malice - intent to kill or commit
grievous bodily injury Purposefully or knowingly
Depraved heart (extreme reckless Recklessness - extreme
murder) indifference to human life

Murder § 210.2
Felony Murder - creates a
Felony Murder - gov't shows BRD

presumption of recklessness when

that death was a proximate result
done during course of predicate
of the felony
2nd Degree Murder

Depraved heart (extreme reckless

Felony Murder (other felonies)

§ 210.3
Provocation/Heat of Passion (when Would be murder but for EED (obj.
Voluntary Manslaughter

otherwise murder) w/ no cool reasonable, but subjectively as

down § 210.3 Manslaughter actor believes circumstances to be)

CL Categories of provocation:

adultery, mutual combat, physical

attack Recklessness

Gross negligence (most states

Involuntary Manslaughter

require this)
Negligent Homicide

Ordinary negligence (Williams) Gross negligence



I. Punishing Attempt
a. Why Punish attempt? - Imposing liability for attempting - for a failed effort to cause harm - why punish?
i. Utilitarian – deterrence; proves Δ is dangerous even if the act was harmless, & Δ might try again
1. Deterrence is more effective where punishment is more certain, so punishment should not
turn on the success or failure of a criminal plan, which often depends on luck.
ii. Retributive - because the attemptor's act manifests bad character, even if no harm inflicted
1. Attemptor is just as morally culpable and as deserving of punishment as one who actually
completes the act. But the punishment must be for wrongdoing, not for evil desires.
b. The Grading of Attempt
i. MPC § 5.05: MPC gives equal punishment for an attempter as one who actually completes the act.
Except for felony murder; attempt to commit a capital crime or 1st degree felony is a felony of the 2nd
1. Reasoning behind this: the actor is just as culpable and their needs to be a corrective sanction
a. Want to deter actor from even attempting. Unlikely that a lesser punishment for
attempt would deter them from completing the act.
2. Functions of punishing attempt the same as if crime was successful:
a. Police – no dilemma about when to intervene. (waiting until Δs complete act so police
can charge them vs. creating dangerous situation if act is completed.)
b. Δ poses a danger – must be dealt with before they cause harm
c. Where crime not completed purely by chance, but actor took all measures to commit
it. Still needs to be punished - or it would be inequality of treatment for the same act
done by two diff criminals - one whose plans fails vs. one whose plan succeeds.
ii. Most jurisdictions give a lesser punishment for attempt than for the completed crime (not MPC)
1. Utilitarian argument – need to be deterred from beginning the act in the first place (so
punished also), but there must be some incentive to stop at some point before completion (so
lesser punishment).

II. Mens Rea for Attempt

a. Mens Rea for attempt is purpose. Attempt ALWAYS requires intent.
i. State v. Lyerla – Δ driving, girls in truck won't let him pass (trying to “play games”). Δ claims being
harassed to such extent he feared for his life; so Δ fired shots to disable the truck, & kills a girl. In
this state, Murder 1st was intent to kill; Murder 2nd was recklessness. Jury found him guilty of only
Murder 2nd (recklessness) & attempted Murder 2nd
1. Attempt requires intent, but jury didn’t find intent. So attempted recklessness is a logical
impossibility – requires that Δ intended an unintended killing. Cannot intent to be negligent
or reckless.
b. MPC § 5.01 (1) – Guilty of attempt if Δ, acting with the kind of culpability otherwise required for the
commission of the crime, (a) purposely engages in the conduct that would constitute the crime if the
circumstances were as he believes them to be.
i. Need 2 mens rea: (1) the mens rea for attempt, which is always purpose, and (2) the mens rea
necessary as defined in the offense.

1. Same as CL, attempt liability requires that the Δ exhibit purpose with respect to any conduct
elements of the crime and purpose or possibly knowledge with respect to any result element.
2. But for the circumstances elements, use the mens rea as required by definition of the
completed offense.
c. Attempted Recklessness
i. The dissent in Lyerla said the conduct of risking death was intentional even though there was no
intent to cause death. So ok to have attempted recklessness.
ii. Reckless Endangerment
1. MPC has a reckless endangerment provision § 211.2: "A person commits a misdemeanor if
he recklessly engages in conduct which places or may place another person in danger of
death or serious bodily injury."
d. Specific intent & attempt (CL)
i. United States v. Morales-Tovar - Statute makes it a crime for any deported person to re-enter or
attempt to re-enter the U.S. without express permission of the Attorney General. Δ, a convicted felon
who had been deported, tries to re-enter & they arrest him. Δ had gone to border & told immigration
authorities that he wanted to replace his resident alien card which was lost - but he didn’t tell them
he was deported. Δ never have a false name nor gave false docs.
1. Must be a specific intent to attempt a criminal act. Otherwise, the statute would be
contradictory. W/o requiring a specific intent to violate the law, any attempt to follow the
legal procedure to do so would be an illegal "attempt" to re-enter.
ii. However, in United States v. Gracidas-Ulibarry, court says attempt under the same statute is a
general intent crime.
1. Court distinguishes between malum in se and malum prohibitum
a. Malum in se – needs specific intent for attempt
b. Malum prohibitum – general intent enough for attempt

III. Actus Reus for Attempt

a. For an attempt, missing the actus reus as defined as element of the crime. Instead, what will be defined as
the actus reus is determined by looking at how far Δ got toward the completed act for it to count.
b. The preparation/attempt boundary – Generally, the individual who has engaged only in "preparatory
activity" is not criminally liable, while the individual who has gone "beyond mere preparation" may be
charged with an attempt. So where do we draw the line between preparation and attempt?
i. CL - "Last Step" Doctrine – must be so near to accomplishment that it would have probably been
committed if not for some interference.
1. People v. Murray – Δ declares intention to marry his niece, elopes for that purpose, &
requests a witness to get the magistrate. Δ then charged with attempting to contract an
incestuous marriage. Court said Δ’s action were mere preparation. Until that “last step” where
magistrate is there ready to marry them, it’s not attempt.
2. People v. Rizzo – Δs planned to rob someone, & driving around looking for him; 2 had
firearms. Being watched & followed by police, and arrested before they could commit the
robbery, and even before they even found the guy (who wasn’t even around). Court says the
act can't be too remote to the commission; must be so near to its accomplishment that in all
reasonable probability the crime would have been committed, if not for interference. Here, Δs
had not found or reached the presence of the person they intended to rob, so no attempt.
ii. CL - Physical proximity – the act required to show attempt must be proximate to the completed
crime – how close Δ got (like last step doctrine).
iii. CL - Dangerous proximity – how probable was it that the crime would occur; the greater the
probability, the nearer the act to the crime, the more likely it’s an attempt.
iv. CL - Indispensable element test – there’s no criminal act until Δ has every indispensable element
he need to complete the act in his control.

v. CL - Probable assistance test – whether in the ordinary & natural course of events, the substantive
crime was likely to be complete but for the interruption.
vi. The abnormal step approach – whether Δ, in preparation, did something that stands out as being a
line that an innocent person wouldn’t cross
vii. Unequivocality test – if Δ’s acts manifested an intent to commit the crime; act shows Δ has a
criminal purpose. Problem with this approach is that some actions may appear criminal only b/c they
match stereo types (based on prejudice).
viii. MPC § 5.01 (2) - "Substantial step" test – the modern trend. That there is a substantial step in a
course of conduct designed to accomplish a criminal result (in addition to the mens rea required).
MPC lists certain conduct sufficient to establish a substantial step (not exclusive/exhaustive):
1. lying in wait, searching for or following the victim;
2. seeking to or enticing the victim to go to the place where crime is to be committed;
3. scouting out the place where crime is to be committed;
4. unlawful entry into a place, vehicle, etc., where crime is to be committed;
5. possession of materials to be used in the crime, which are specially designed for unlawful
use, or can serve no lawful purpose under the circumstances;
6. soliciting an innocent to engage in conduct constituting an element of the crime.
c. At CL, only punishing for the actual harm, but now, trend is to deter, and to catch dangerous people before
they can cause harm. So figuring out when preparation becomes intent has becomes more relaxed.
d. Before you even look at attempt, first look at substantive definition of the offense
i. Ex: someone puts a sweater in their bag, but gets caught at the door
1. Statute says "concealing property of another with intent to keep it" - not attempt, but theft.
2. But, if theft defined as "taking someone else'e property," then this is only attempt.

IV. The Defense of Abandonment – Does it matter if Δ voluntarily gave up their criminal purpose?
a. People v. Staples – Δ rents room above bank vault & starts prepping to rob the bank. He went as far as to
drill holes in the floor. Landlord sees this & goes to police. Δ says he abandoned his attempt before he was
arrested – he started to realize how absurd the idea was & changed his mind. Not clear if abandoned before
or after landlord found out.
i. Court rejects any abandonment defense; doesn’t matter the reason for abandoning (change of heart
vs realize it won't work). Looks at whether the acts have reached a stage that it can be called attempt
– once you’re an attemptor, can't go back. The drilling was clearly an unequivocal & direct step
toward completion of the burglary.
ii. Abandonment Doctrine Today – not often that this defense used. Usually, the courts will just find
there was no attempt to begin with – that it was still preparation.
iii. Good and bad motivation - sometimes allowing a defense of voluntary abandonment might lead to
disturbing results. So, the voluntary/involuntary distinction may not work.
1. Le Barron v. State - Δ, assaults a woman with intent to rape, but abandons the rape only b/c
she was pregnant. The court rejected the abandonment claim.
b. The MPC's Renunciation Rule
i. The MPC § 5.01(4) permits an affirmative defense of abandonment (unlike Staples) if he abandoned
it or otherwise prevented it to happen.
1. Requires a “complete & voluntary renunciation of the criminal purpose” – has to be a true
change of heart. Can’t be b/c he the circumstances make it more difficult, he realizes he
would get caught; he postpones, or chooses another but similar objective or victim.
ii. MPC allows this defense b/c the individual who abandons of his own volition early on in the course
of an attempt lacks dangerousness of character, and also b/c permitting the defense is an incentive to
stop the commission of the crime.

V. Solicitation

a. Solicitation is that with the intent that another person engages in conduct constituting a crime, the Δ solicits,
requests, commands, or otherwise attempts to have the other person engage in the conduct. Solicitation in
itself is a crime (that communication) & doesn’t need to be any corroboration.
i. People v. Lubow – Δ owes Silverman money & when he asked for the money, Δ invites him to
participate in a scheme to defraud creditors. Silverman tells police & convos are recorded as
evidence. Court holds there’s sufficient evidence to find that Δ intended for Silverman to engage in
conduct constituting a felony by defrauding creditors.
b. MPC § 5.02 – Criminal Solicitation
i. Guilty of solicitation to commit a crime, if with the purpose of promoting or facilitating its
commission, the Δ commands, encourages, or requests another person to engage in conduct
constituting that crime, an attempt to commit the crime, or the other person’s complicity
(aiding) the crime.
1. Uncommunicated solicitation. Doesn’t matter if Δ fails to communicate the
solicitation, as long as his conduct was designed to effect the communication.
2. Renunciation is an affirmative defense, if Δ, after soliciting, later persuades the
person no longer to act, or otherwise prevented him from doing so.
ii. Reason we punish – shows the Δ has a disposition towards criminal activity & want to
prevent it. Just b/c the other person doesn’t agree, Δ still liable. Also, when you bring in other
parties, chances of crime happening increases.
c. Solicitation vs. Attempt
i. Under MPC, solicitation is redundant; solicitation can be convicted for attempt b/c there’s a
substantial step when Δ solicits.
ii. For grading - MPC treats solicitation same as attempt.
1. MPC § 5.05 (3) - says a Δ can be punished for either solicitation or attempt, but not both.
iii. Some states impose a lesser punishment for solicitation that for attempt, so the relationship between
them becomes important.
1. People v. Superior Court – Δ solicits someone to commit murder & gives assassin a lot of
relevant information. Assassin is actually a police detective. Before Δ gives him the $, police
asks if he’s sure, Δ says very sure. Court says its attempt. Although Δ didn’t aim a gun, he
aimed a professional who agreed to do the killing, which may be worse, b/c more likely to be
successful. Solicitation completed early on, when Δ first asked.
2. People v. Davis – Δ hires a guy to commit murder, but the guy goes to the police. Court said
not attempted murder because no last step toward killing. Δ wasn’t necessarily serious about
it, & can't put in jail every person w/ criminal impulse.

VI. Impossibility
a. Common Law: Legal vs. Factual Impossibility
i. At CL, there was a distinction between legal and factual impossibility, where legal impossibility was
a defense, while factual impossibility wasn’t. But this distinction makes no sense, b/c any scenario
would be worded as either.
ii. The distinction at CL was:
1. Legal impossibility - if the act even when completed would not have been illegal
2. Factual impossibility - legally, crime could have happened. But it failed to happen for a
reason Δ was unaware of
iii. Booth v. State – Δ tries to purchase a coat he believes is stolen. Person who stole it was caught by
police, and owner recovers it, so no longer stolen. Then police use the coat to lure the Δ; Δ gets
caught & charged with attempt to receive stolen goods. Δ argues defense of legal impossibility.

1. Court struggles with the distinction between legal & factual impossibility. Court ends up
saying it’s a legal impossibility.
2. But this distinction is flawed. Basically could be either depending on how you define the act:
a. Legal impossibility – The coat wasn’t stolen when he would have bought it, so the act
wouldn’t have been illegal.
b. Factual impossibility – receiving a stolen coat is illegal, it only didn’t happen b/c of
circumstances Δ wasn’t aware of (coat was no longer stolen).
b. Modern Trend – gets rid of the distinction; it’s impossible to apply.
i. Instead, looks at Δ’s state of mind – if Δ did what he intended, would it have been a crime.
1. People v. Dlugash – Δ shoots someone that’s already been shot; unclear whether victim was
dead already when Δ shot him. Δ claims it’s legally impossible to kill a dead person, but court
rejects this argument, and points to the Δ’s state of mind. Court says he’s guilty of attempted
murder if he had the intent to kill.
2. People v. Thousand – Δ charged with attempt to distribute obscene materials to a minor. He
argues legal impossibility b/c the person who he attempted to distribute it to was a police
officer, not a child. Court abandons the CL rule. What really matters is Δ’s intent – he
believed he was chatting with a minor, & intended to distribute to the minor. If completed, it
would have been a crime. Court notes defense only when a pure legal impossibility.
ii. Pure legal impossibility – this is a defense, b/c if Δ did what he intended, it still wouldn’t have been
a crime. Focuses on mens rea too – whether the act Δ believed he was committing was actually a
crime (whether or not Δ actually believed it to be). Even if Δ completed the act, it wouldn’t have
been a crime.
1. Ex: Think it’s illegal to bash the President in public. Go to the park and declare that you hate
the Pres, he’s terrible, etc. This isn't a crime, even if Δ thinks it is.


I. Actus Reus
a. The Accessorial Act – ascertaining the extent of a person’s liability for a crime that he did not commit
personally but for which he was an accomplice (one who aids or encourages another’s offense).
i. Gov’t must prove BRD:
1. Mens rea – community of purpose; aider/abettor shares common purpose w/ principle
2. Act - words or conduct that incited, encourages, instigated, or aided the principle in the
commission of the offense
ii. State v. Ochoa – bunch of ppl angry about a friend’s criminal charge & gather at courthouse, among
a crowd of townspeople. Riot erupts, and Δs are kicking deputy. Sheriff is shot & killed, but
individual who shot him never identified. Δs charged with 2nd degree murder as accomplices.
1. Act: Δs assaulted the deputy. Δs took away the possibility of deputy helping the sheriff by
assaulting him. Mens Rea: Even after shot fired, they kept assaulting deputy – this shows
mens rea of intent, purpose to aid & abet. Doesn’t matter if shooter knew Δs were helping.
2. Note: Aiding & abetting and conspiracy often come together. Knowledge that principle knew
of the help would be important for conspiracy, but here only charged with aid/abet.
However, proof of conspiracy helps establish aid/abet b/c it helps show common purpose.

iii. State v. Tally – Δ’s brothers-in-law angry with Ross b/c he seduced their sister; they go after him
intending to kill him. Ross flees town (he thinks only 3 brothers after him). Ross’s relative sends
Ross a telegram warning him that 4 brothers after him. Then Δ sends a telegraph telling the operator
not to deliver the warning. Ross is killed; Δ charged w/ aid/abet murder.
1. If Ross had gotten the message, he would have known about the 4th brother. There was a
shootout, &the 4th snuck up behind him. True, Ross would have likely died anyway, but Δ
made the chance of murder more likely. Δ took away from Ross this one chance to survive.
2. Aider & abettor don’t have to be the cause of the substantive offense (then would be
principle). But that conduct makes the substantive offense more likely to happen. Important
to look at mens rea – the true purpose; Δ’s desire for that to happen.

II. Mens Rea

a. True Purpose – (majority view) Must show that an aider & abettor has the purpose of facilitating the
crime; you can infer purpose when there is assistance by someone who knows of the criminal plans.
i. People v. Beeman – Δ told robbers about jewelry his sister had; tells them where it is, what they
should wear, & even says he’ll sell it for them. Problem w/ jury instruction, it said knowledge of
robbery is enough, but this is wrong – you need purpose. The facts from which a mental state can be
inferred must not be confused with the mental state the gov’t has to prove. But you can infer purpose
from knowledge (usually when Δ helps someone w/ knowledge of the crime, strong inference of
ii. United States v. Peoni – Δ made counterfeit money & sells it to A. A spends it, and B is ripped off. Δ
charged with aiding/abetting fraud on B. When Δ passes the money, he probably knows someone will
be defrauded. But this is not his purpose, and you need purpose, knowledge is not enough. But Δ has
no interest in what A does with it, even though he knows what A will probably do.
iii. MPC § 2.06 (3) - requires purpose, not knowledge.
1. A person is an accomplice of another person in the commission of an offense if . . . 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 do so
iv. People v. Etzweiler – Δ gives his car keys to his drunk friend. Friend drives recklessly & kills
someone. Δ has the intent to lend him the car, but not to facilitate the homicide. Court holds that Δ
needs the purpose of the substantive crime (vs purpose to facilitate conduct which ultimately causes
the crime). Δ didn’t intent the offence of negligent homicide; so not guilty.
1. But, you can be an accomplice to crimes that don’t require purpose; can be liable under
complicity for crimes of recklessness
a. MPC § 2.06 (4) When causing a particular result is an element of an offense, an
accomplice in the conduct causing such result is an accomplice in the commission of
that offense if he acts with the same culpability, if any, with respect to that result, that
is sufficient for the commission of that offense.
i. Under the MPC, Etzweiler would have been found guilty
Knowledge is enough (minority view)
v. Backun v. United States – Holds that knowledge is enough. If a person knows he’s assisting a crime,
& making ir more likely to happen, then that should be enough to satisfy liability.

b. Collateral Crimes – Dual crime liability/collateral liability. That the Δ aided and had purpose for one
crime, and can also be held liable for any crimes committed in furtherance of that first offense. This is often
invoked in criminal law.
i. Where one aids another in the planning or commission of an offense he is legally accountable for the
conduct of the person he aids; “conduct” encompasses any criminal act done in furtherance of the
planned and intended act
1. People v. Kessler - Δ waiting in car while 2 unarmed companions go to commit burglary.
Companions are surprised by owner and they take gun from him, shoots owner, and while
fleeing on foot, shoots at officer. Δ held liable for those acts, even though he didn’t have the
ii. If two persons join in a purpose to commit a crime, each of them, if actually or consecutively
present, is not only guilty as a principal, if the other commits that particular crime, but he is also
guilty of any other crime committed by the other in pursuance of the common purpose, or as a
natural and probable consequence thereof.
1. State v. Carson – 2 ppl decide to commit robber; then 1 person commits murder
iii. Difference is when principal goes off on a separate criminal objective
1. If Δ agrees to be drive-away guy for a robbery, and while principal is there, not only robs, but
commits sexual assault, can drive-away guy be held liable as an aider/abettor to the assault?
a. On a straight collateral liability statute - No, b/c he did not know he'll do this, even
though he made crime more likely to occur, & b/c it had nothing to do with the
b. Furtherance - you can change the facts where you get drive-away guy liable in
pursuance/furtherance of the common purpose (robbery) - if purpose of sexual assault
was to intimidate, in order to get ppl to comply
c. Foreseeable - there is an argument that drive-away guy is liable because it happened
as a natural and probable consequence - if drive-away guy knows the principal is a
loose cannon, with this power situation, and likely commit sexual assault.
2. This is much more expansive than felony murder - doesn’t have to be complicity to a
dangerous offense (robbery, sexual assault). But instead, get-away driver liable when purpose
was some misdemeanor, and principal did some nasty stuff while committing the
iv. MPC rejects this. MPC is true, true purpose - Δ only is liable if he has the purpose to that offense
c. Renunciation
i. MPC § 5.01 – You can still be liable under complicity even if the principle never commits or
attempts the crime.
ii. MPC § 2.06 (6) – A person is not an accomplice in an offense by another person if:
1. He terminates his complicity prior to the commission of the offense and
a. Wholly deprives it of effectiveness in the commission of the offense; or
b. Gives timely warning to the law enforcement authorities or otherwise makes proper
effort to prevent the commission of the offense.
2. *This is not a common statute - because this is very rare. Accomplice may bail out, but very
rare if they stop the offense, or tell the police.

Common Law Contemporary – No Distinctions

Distinction between principle in 1st & 2nd degree Principle is the person who demonstrates the actus reus
• 1st – person who committed offense & was in the substantive offense.

present at the scene
• 2nd - present at the scene, but didn’t commit the
Distinction between accessory before & after the fact Aiders & Abettors – they are as guilty of the
• Accessory before – assisted before offense was substantive offense as the principle.
committed • Indictment reads the substantive offense
• Accessory after – didn’t do anything that made • Question is whether they aided – made the
it more likely to happen, but helped after offense more likely to occur
Procedural Difference Accessories after the fact are not aiders & abettors –
• Accessory could not be charged unless principle may be a separate statute that encompasses them, but
was found guilty much lower offense when helping after the fact.


I. The Nature of Conspiracy

a. Conspiracy is an agreement between 2 or more persons to do an unlawful act or to do a lawful act in an
unlawful manner.
i. At CL, conspiracy was a misdemeanor, & if the substantive crime was actually committed, then the
misdemeanor merged into the actual crime committed.
ii. Today, however, conspiracy is punished as a separate and distinct crime. Therefore, the Δ may be
prosecuted for both the conspiracy and the complete crime and the sentences can be added together
on conviction.
b. Conspiracy does not “merge” into attempt is followed in some states.
i. State v. Verive - Δ agrees to beat some guy up to dissuade him from testifying against a perjurer, in
exchange for money. Δ goes to his house and does beat him up. Δ convicted of both 2nd degree
conspiracy to dissuade a witness, and attempt to dissuade a witness.
1. State statute has a rule that you can only attach one punishment to one act. But there were 2
acts for the 2 punishments. (1) Δ went to victim's house to dissuade him from testifying - this
is sufficient for the conspiracy charge, and (2) Δ beat victim - this is enough to support the
attempt charge.
2. double jeopardy - can't be tried twice for the same crime. Court says these are 2 sufficiently
distinguishable offenses b/c each requires proof of a fact that the other does not. For
conspiracy, the focus is on the agreement itself, and for the attempt, the focus is on the actual
beating. One can be committed w/o committing the other here.
ii. But other states & MPC disagrees – § 1.07 (1) (b) says “when the same conduct of a Δ
may establish the commission of more than on offense, the Δ may be prosecuted for each
such offense. He may not, however, be convicted of more than one offense if . . . one
offense consists only of a conspiracy or other form of preparation to commit the other.
c. Conspiracy v. attempt -
i. Conspiracy is preparatory crime (like attempt & solicitation).
ii. But conspiracy differs from other preparatory crimes
1. Conspiracy requires more than attempt, b/c it requires 2 participants
2. Yet, conspiracy requires less than attempt, b/c it pushes the line between preparation and
criminal liability further back.
II. Actus Reus: The Agreement

a. Proof of Formation
i. Given the secretive nature of conspiracies, direct proof of agreement is not necessary, and the
conspiracy can be inferred circumstantial evidence.
1. Griffin v. State – Δ overturned his car into a ditch. Police comes to help, Δ attacks an officer,
and police subdue Δ w/ force. Crowd gathers to support Δ & they start striking & kicking
officer. Court found a conspiracy.
a. Not necessary that an unlawful combination, conspiracy or concert of action to
commit an unlawful act be shown by direct evidence; it may be proved by
circumstantial evidence. If evidence shows a concert of action, this is sufficient to
establish the necessary common object & intent.
2. Tacit Agreements – to convict a Δ of conspiracy is is necessary to prove not only knowledge
on his part that he was helping in a wrongful enterprise, but also knowledge on another’s part
that he intended to do so, & at least a tacit agreement to give & accept such help.
3. Proving agreement by inference
a. United States v. Cepeda -
b. Conspiracy & political terrorism
1. United States v. Zacarias Moussaoui
III. Mens Rea of Conspiracy: Purpose
a. Knowledge of another’s criminal activity is not necessarily a conspiracy to further the activity.
i. If direct evidence of intent is lacking, intent may be inferred from knowledge when the Δ has:
1. A “stake in the venture,” such as an inflated price for the service, so the seller has an interest
in having the activity go on
2. No legitimate use for the goods or services (e.g. a prostitution directory)
3. An unusual volume of business not proportionate to any legitimate demand
ii. People v. Lauria – answering service for prostitutes among other legitimate business. He knew that it
was a prostitution service b/c he used their services. Court found no indication that Δ intended to
further the crime. He had not stake in the venture – did not charge them extra, nor were they a major
part of his business. He had a legitimate use for his services & no unusual volume of business –
majority of his services dedicated to legitimate use. Just b/c he knew is not enough for charge of
conspiracy, b/c he had no purpose to further the crime.
b. Mistake of Law
i. CL – the Corrupt Motive Doctrine – implied in the meaning of the word conspiracy, that the
agreement must have been entered into with an evil purpose, as distinguished from a purpose to do
the act prohibited. in ignorance of the prohibition
ii. Modern trend is to reject the Corrupt Motive Doctrine – instead, equate the mens rea requirements
for a conspiracy with those for the substantive crime

IV. The parties to and Objects of Conspiracy

a. Bilateral and Unilateral Conspiracies
i. CL Bilateral approach – There must be two or more persons to a conspiracy.
1. Problem – in a sting operation, not 2 parties, b/c one is an undercover cop
ii. Unilateral approach

1. MPC § 5.03 (1): A person is guilty of conspiracy with another person or persons to commit a
crime if with the purpose of promoting or facilitating its commission he
a. Agrees with such other person or persons that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation to
commit such crime; or
b. Agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.
b. Necessary Parties and Wharton’s Rule
i. Necessary Parties Rule - if the substantive offense involves a party to the crime that is viewed as a
victim, that person can’t be a conspirator. This is a bilateral approach because the Δ needs another
party to conduct a conspiracy.
1. Gebardi v. United States – Δ & woman he transported across state lines to have sexual
relations with were convicted of conspiracy to violate the Mann Act. Δ made arrangements,
woman consented to go. Court said Congress intended the Mann Act to protect the woman,
so she can't be charged with conspiracy. Takes 2 ppl for conspiracy.
a. Under MPC, Δ would be guilty. But most states follow this rule.
ii. Wharton’s Rule - if multiple people are essentially required for the substantive offense, you can’t
have the conspiracy if the conspiracy is only among those people (Ex: bribery involves 2 ppl, not a
conspiracy, only a conspiracy if more ppl involved). In these situations, there can be no separate
offense of conspiracy, since the agreement between the 2 persons is a necessary part of the
substantive crime.
1. Exception: Iannelli v. United States – statute makes it illegal for 5 of more ppl to gamble. 8
Δs involved. Court says Wharton’s Rule does not apply.
V. Pinkerton: Collateral Crimes
a. The Pinkerton Case – In the Pinkerton case, brother conspiring to commit a crime. One of the brothers
goes to jail, and the other commits more offenses. Brother in jail held liable for the acts of his brother. Held
that the co-conspirator committed the acts in furtherance of the conspiracy to which the Δ was a member, so
Δ liable for those acts.
b. The Pinkerton Rule: Each conspirator liable for the acts of every other conspirator done in furtherance of
the conspiracy, unless the act could not be reasonably foreseen as a natural and probable consequence of the
agreement. This rule allows the gov’t to prove Δ to be a conspirator for one thing, and adds on, collaterally,
the other substantive offenses committed by co-conspirators.
i. United States v. Diaz – Δ involved in conspiracy with others to sell cocaine. At the time of the deal,
other guy carrying a weapon, but Δ unarmed. Δ convicted of conspiracy to distribute cocaine, & use
of a firearm in relation to the commission of a drug trafficking crime.
1. Without Pinkerton, gov’t would have to prove aiding & abetting
ii. But, Pinkerton liability can be very broad:
1. Pinkerton Requires that Δ be a conspirator, and that the co-conspirator commit the
substantive offense in furtherance of the conspiracy, which is foreseeable. So really, all Δ has
to be is negligent.
2. United States v. Alvarez – Big drug sale conspiracy; co-conspirator shoots police during the
deal. Δ held liable. Said foreseeable b/c Δ must have been aware that ppl would be carrying
weapons, and that some deadly force would be used, if necessary, to protect interests.
c. The MPC rejects Pinkerton

i. § 2.06 – says person is guilty of an offense if he commits it “by his own conduct or by the conduct of
another person for which he is legally accountable or both.”
1. So, if Δ is not the direct perpetrator of the crime, he must be proven guilty by the rules of
accomplice liability – gov’t can't use the Pinkerton Rule.

VI. The Scope of the Conspiracy: Single vs. multiple Conspiracies

a. Depending on how the conspiracy is defined will have important consequences on liability
i. Pinkerton - once a Δ is in a conspiracy, liable for all actions committed by co-conspirators.
1. Who is conspiracy among? A conspires with B, C, and D to commit a crime.
a. Can be 3 separate conspiracies – then B, C, & D won't be responsible for anything
that happens b/c of the other conspiracies, but A responsible for all.
b. If all one conspiracy, each member liable for anything that happens.
2. Duration is an issue as well – if B leaves conspiracy:
a. If defined as 3 separate conspiracies, then B only responsible for what happens until
point he leaves.
b. But if defined as one conspiracy, then B still responsible for everything.
ii. Unilateral vs. bilateral: What if a “A” is actually a police officer?
1. Under bilateral, if all one conspiracy, it won't matter, still liable. But if defined as
3 separate, then no conspiracy, b/c need 2 conspirators for each one.
2. Under unilateral – it wouldn’t matter.
iii. If jurisdiction requires an overt act for liability of conspiracy
1. If all one conspiracy – even if no overt act by B, if overt act committed by C, then it’s a
2. But if separate conspiracies, then C’s overt act won't be attributed to B, and B won't be guilty
of conspiracy.
iv. Trial prejudice
1. If 3 separate conspiracies, A charged with 3 counts of conspiracies, but if only 1 conspiracy,
A only charged with one.
2. If only one conspiracy, & all at one trial, problem is prejudice - prejudiced jury will think all
are responsible for the actions of the others
b. How do you define a conspiracy?
i. Idea is that there has to be something that ties it all together – if the success or failure of the
agreements all rise & fall together; or whether just 3 separate agreements
1. Rimless Wheel - conspiracies are distinct and disconnected, not parts of a larger general
scheme. There was no drawing of all together in a single, overall comprehensive plan
a. Kotteakos v. United States - fraudulent loan agreements with diff people. Separate
conspiracies because each loan application was separate from each other and didn’t
rely on each other to succeed
2. Chain – One large conspiracy made up of agreements between many different people doing
different thing, where no one profits unless each does their part.
a. Blumenthal – conspiracy to sell whiskey at prices in excess of ceiling set by law. Held
that salesmen must have known there was a larger plan - that other ppl were involved.
Hardly believable that they though distributors giving away whiskey for free, but
instead inferred that Δ must have known that the distributors were in on it
b. United States v. Perez p. 844 - Personal injury schemes; staging car accidents to
collect on personal injury claims. Everyone involved in it would have to know it was
bigger than them, for the whole thing to actually work.
VII. Withdrawal: Termination of the Agreement
a. Two issues: When does the conspiracy end, and Can you withdraw & no longer be liable?

b. Conspiracy doesn’t end until it’s abandoned or Δ withdraws
i. United States v. Recio – gov’t intercepted a drug delivery, & monitored the delivery to see who
would accept the drugs. Δ charged with conspiracy b/c he picked up the drugs. Δ argued that the
conspiracy ended when the gov’t interfered. Court says the agreement was the harm. Conspiracy
doesn’t end until it’s abandoned or Δ withdrew. Even if gov’t frustrated it, it doesn’t matter &
conspiracy was not abandoned from Δ’s perspective.
c. Limiting liability exposure - Even if you withdraw or abandon it, Δ still guilty of the conspiracy.
Therefore, still liable for acts done by co-conspirators after Δ withdraws or abandons.
i. United States v. Reid – to get out, must tell co-conspirators you’re out, or engage in acts inconsistent
with object of the conspiracy. But this is not an affirmative offense, you’re still guilty of the
conspiracy, but don’t want to be held liable under Pinkerton.
ii. Withdrawal: inform the co-conspirators directly or indirectly (words or actions) (dependent on each
other). The actor is still guilty of conspiracy but cannot be convicted of the overt act done by the co-
conspirator. There is a timing issue.
d. MPC approach to withdrawal
i. § 2.06 (6)(c) – Not guilty as an accomplice if he terminates his complicity prior to the commission of
the offense and:
1. Wholly deprives it of effectiveness; or
2. Warns the police; or otherwise makes proper effort to prevent it