A person is not guilty of an offense unless her conduct which must include a voluntary act and which must

be accompanied by a culpable state of mind, is the actual and proximate cause of the social harms as proscribed by the offense. Jury Instructions a. Watch out for: a. Irrebuttable presumptions b. Misapplication of scienter requirements

STATUTORY INTERPRETATION Legality: Legislativity: Legislature-made? Judges cant re-interpet Common law? Judges can re-interpet Prospectivity: Retroactive lawmaking? Ex post facto Specificity: Adequate notice? Know what is and isnt legal Does it delegate interpretation to police, judges? Lenity Principle: ambiguous statutes should be biased in favor of the accused. (Not recognized in MPC) Unconstitutional Actus Reus: Status Crimes Propensity for bad behavior v Particular criminal act. Result of involuntary condition? Eg, being homeless. Was D aware of alternatives? Were alternatives feasible? Social Harm? Mens Rea: Strict liability (sometimes)? Presumption of mens requirement if no contrary legislative purpose Mistake of Law - Fair Notice? Lambert: Omission, Status Crime, Malum prhoibitum? Scienter Requirements 1. Does mens rea element modify all elements in the statute? a. Where is it placed? b. Presumption in favor of a scienter requirement to apply to statutory elements that criminalize otherwise innocent behavior. 2. Silent? a. Can you read a mens rea element into? i. Presumption against strict liability b. Public welfare offense?

i. Derived from CL? Undermine policy? Enforces unreasonable/unconventional expectation? Large penalty? Effect on reputation? 3. How to interpret it? a. Legislative history, Common law interpretation, etc

ACTUS REUS 1. Definition a. A voluntary act (A stabbed B) b. That causes (which caused Bs death) c. Social harm (death is the social harm) 2. Overt Act: Guilty intention unconnected to overt act cannot be punishable by law a. Status Crime i. Constitutional? b. Possession i. Constructive: Knowledge? Evidence of exercising dominion? c. Omissions i. Legal duty v moral duty 3. Voluntariness is an element of every criminal offense a. Not simply a defense. Govt must prove it beyond a reasonable doubt b. Definition of involuntary i. Affirmative Defense v Negative an element ii. Fringe: Hypnotism, Multiple personality c. Time framing i. Broad v Narrow: Must focus on the relevant conduct, ie, the conduct that actually and proximately caused the social harm of the offense charged d. Anticipating Involuntariness i. Aware of propensity? Can he take precaution? Did he take reasonable precaution? 4. Social Harm: against criminalizing conduct absent injury to a person or abuse of an institution the law protects. a. Elements i. Conduct element the action that must be performed ii. Result element the result that must occur iii. Attendant circumstances what other features must be present MENS REA 1. Common Law a. General Intent v Specific Intent? 2. MPC a. Which level of mens rea required attaches to which element? 3. Strict Liability a. Constitutional?

4. Mistake of Fact a. CL: i. General Intent: was his mistake unreasonable? 1. Moral-Wrong Doctrine a. If reasonable, what did D reasonably believe he was doing? b. Based on Ds belief, were his actions moral? i. Illegal-wrong: were his actions illegal? Guilty of greater offense ii. Specific Intent: does the mistake of fact negate the specific intent portion? b. MPC i. Mistaken purpose? Mistaken knowledge? Mistaken about a substantial and unjustifiable risk? Mistakenly unaware of a risk? ii. Exception: If D guilty of another offense if circumstances were as D supposed them to be? 5. Mistake of Law ignorance of the law is no excuse a. Common Law i. Reasonable reliance? 1. Ds own interpretation or private counsel? No 2. Official statement by statute, judicial decision, public officer? - Yes ii. Fair Notice? Constitutional iii. Negates specific intent element? 1. Different-law Mistake: Mistake in law relates to a law other than the criminal offense a. Ex: Illegal for felon to have gun. Didnt know he was a felon b. MPC i. Reliance? 2.04(3)(b) ii. Fair Notice? 2.04(3)(a) not know or made reasonably available iii. Negates a material element or permitted as a defense in statute? Only for different-law mistakes CAUSATION 1. Common law a. But for cause i. Accelerated a result? ii. Concurrent sufficient cause? iii. Obstructed Cause? b. Proximate Cause i. De Minimis Contribution? ii. Foreseeability of Intervening Cause? 1. Responsive v Coincidental 2. MPC a. Actual Cause b. Proximate Cause (Culpability) i. Does the requisite level of mental culpability still hold? ii. Felony Murder: Must be a probably consequence

JUSTIFICATION/EXCUSE 1. Third Party Conduct - Justifications are universalized, Excuses are individualized a. Is D excused or justified? b. Accomplice Liability passes 2. Burden of Proof a. Justification? Govt must prove conduct was unlawful b. Excuse? D must persuade he is not to blame 3. Self-Defense a. Reasonably believe i. What did D subjectively believe? ii. Was Ds belief reasonable? 1. Which standard of reasonableness? a. Pure objective or subjective reasonable person? b. Reasonable person in the actors situation? i. Which mental/physical characteristics and background are relevant in assessing reasonableness? ii. Can expert testimony be entered to validate Ds reasonableness? 2. What knowledge/belief are relevant/valid? a. Rational racist? Rational misinformed individual? b. such force is necessary i. Retreat rule v No retreat? 1. In Ds castle? ii. Did D regain the right of self-defense? 1. Withdraw in good-faith and fairly communicate this fact c. and is proportional d. Can D use deadly force? i. Only if necessary to prevent imminent and unlawful use of deadly force by aggressor 1. Imminent? Pre-emptive strike? ii. Who was aggressor when the defensive deadly force was used? 1. D not justified if he made a unlawful act that produced a potentially injurious fatal consequence 2. D cannot escalate out of proportion. He may have to try to retreat first if V tried to escalate. e. MPC i. D believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force. 3.04(1) 1. Was subjective belief reasonable? - 3.09 2. Immediately necessary? Permits earlier use of force ii. Deadly Force? 1. Yes: Death, Serious bodily injury, forcible rape, kidnap 2. No?

a. Aggressor? D doesnt lose right if D started nonlethal conflict, but he does if he starts lethal. Regains by D tries to break off b. Retreat? If he knows he can retreat with complete safety. Except: if D is in his castle, 4. Defense of Others a. CL: i. Reasonable belief it was necessary? ii. Alter ego: only justified if V would have been justified? b. MPC: i. D uses proportional force? Would V be justified if V believed circumstances were a D believes? Necessary? 5. Necessity a. CL: i. A clear and imminent danger. ii. Ds action must directly avert the harm iii. No legal alternative iv. Must avoid a greater harm 1. Traded a greater probable chance for a certain death? v. D must have clean hands 1. Decision process? vi. Limitations to natural disasters, homicide? b. MPC (Broader) 3.02(1) i. D believes it is necessary to avoid harm to himself or another; ii. Must avoid a greater harm iii. No legislative intent to exclude the conduct in such circumstances. 6. Duress a. CL: i. Only human threats, not for murder, doesnt require D to avoid a greater harm ii. Threats to kill/injure the actor/third person (relative)? iii. Reasonable belief in a genuine threat? iv. Present, imminent, impending at the time of the crime? v. No reasonable escape except through compliance? vi. Actor was not at fault in exposing herself to the threat? b. MPC 2.09 i. ii. Compelled by the threat of unlawful force? iii. Would a person of reasonable firmness in her situation have been unable to resist the coercion? 1. Objective std but can consider prior unlawful threats iv. Exception: D recklessly/negligently placed herself in the situation? If negligent, still available as a defense for all but negligent culpability crimes? 7. Intoxication generally, not an excuse a. How did D get intoxicated? How did intoxication impact D?

b. CL i. Voluntary act? 1. Involuntarily ingested? Coercion, mistake, meds? 2. D intoxicated unto unconsciousness? (mens rea) ii. Negates mens rea? 1. General intent crime? No, for rape 2. Specific intent? Yes, for assault with intent to rape iii. Intoxicated-induced insanity? Generally no c. MPC 2.08 i. Voluntary? - can negate mens rea 1. If resklessness, did intoxication impaired ability to perceive risk? ii. Pathological, Involuntary? 1. Considered if intoxication causes the D to suffer from a mental condition 8. Insanity a. Must have a recognized mental illness b. MNaghten Test (cognitive disability) i. D knew the nature and quality of his actions? 1. Yes, did D know that it was wrong? ii. Know? 1. Can they describe it and its forbidden nature? Can they evaluate it terms of impact on others and context? iii. Legal v Moral Wrong? 1. Morally wrong = violated societal standards, ie, society will condemn them a. Deific Decree? From what source? c. Irresistible Impulse Test i. Modifies MNaghten to include involuntary acts ii. Acted from an irresistible and uncontrollable impulse? iii. Unable to choose between right and wrong behavior? iv. Ds will is destroyed, so cant control his actions? d. Durham Test (Defunct) i. Suffering from mental defect and conduct was the product of the mental defect e. MPC - at the time of the conduct i. Doesnt require total mental incapacity ii. Lacked substantial capacity to either: 1. appreciate the criminality (or wrongfulness)? a. Appreciate is broader than know 2. Conform his conduct to the requirements of the law? ATTEMPT 1. All attempts are specific-intent crimes. Cannot be guilty of a result crime (murder) unless he acted with the specific purpose of cause that result. (No attempted recklessness)

2. CL: a. Actus Reus i. Did Ds actions corroborate Ds intent to commit crime? ii. What is left to be done? 1. Last act (pulling the trigger) 2. Physical proximity (D has everything in his power to complete crime) People v Rizzo Ds still searching for V, not guilty 3. Dangerous proximity (nearness of the danger, greatness of the harm, degree of apprehension felt) 4. Indispensable Element (crossing the line from preparation to perpetration) iii. What has been done? 1. Probable Desistance (crossed the point at which he would have abandoned his effort) 2. Unequivocality (a persons conduct unambiguously manifests his criminal intent) b. Defense: Impossibility i. Factual Impossibility? No defense. (pickpocketing an empty pocket; stabbing with a feather??) ii. Legal Impossibility? 1. D intends to commit crime but actually doing something lawful but doing? 2. D mistakes the legal status of an attendant circumstance? (Receiving unstolen TV) a. What was Ds goal? (Receive stolen TV or receive a TV) c. Defense: Abandonment i. Did D voluntarily and completely renounce criminal purpose? 1. Was D motivated by unexpected resistance/police/lacking instrument? 2. Not postponing for a better opportunity? 3. MPC 5.01 a. Actus Reus (Applies to 5.01(c) incomplete attempts) i. Did D take a substantial step toward the commission? ii. What has D already done? (Not: what is left?) 1. Does substantial step corroborate Ds intent considered in context? 2. Is it on the list of 5.01(2)? if strongly corroborative of his criminal purpose, these shall not be held insufficient as a matter of law b. Mens Rea i. Did D have the purpose to commit the target offense? ii. Complete attempt? 1. Conduct Crime? 5.01(1)(a) a. Did D have purpose as to attendant circumstances? (age of rape V)

i. If not, D acted with the same degree of culpability required to commit target offense? (If rape required recklessness as to age and D was) 2. Result crime? 5.01(1)(b) a. Belief it will result even if not purpose? iii. Incomplete attempt? 5.01(1)(c) 1. Belief it will result even if not purpose? c. Defense: Impossibility (except pure legal) i. 5.01(1) If the attendant circumstances were as D believes them to be. d. Defense: Abandoment i. Abandoned effort? Tried to prevent it? ii. Conduct manifests complet and voluntary renunciation? COMPLICITY 1. Accomplice Liability a. CL i. Types of assistance: physical conduct, psychological influence, omission (Aiding, Abetting, Encouraging, Soliciting, Advising) ii. Actus Reus: 1. Conduct in fact assisted the commission of the offense? a. Was D merely present? >> Generally, need more b. Was assistance effectual? Even trivial is enough iii. Mens Rea 1. D intended to assist principal to engage in the conduct of the offense? a. Purpose v Knowledge? Must share a community of purpose of the principal 2. D had mental state required for commission of the offense? a. Did D feign purpose? Wilson v People i. D didnt intend to steal permanently, then D didnt have the mens rea b. Reckless or negligent state of mind? i. (1) Logically impossible to attempt to be reckless ii. (2) D shared same mental state, ie, recklessly assisted in Ps recklessness (D encouraged P to drive fast, P hit V) iv. Liability Ds liability is derivative of principal. Not guilty of independent offense 1. P not convicted/acuitted? >>Generally, not liable a. For non-offense or justification? >> Not liable b. For excuse? >> Liable if Ps actions were wrongful but was insane, etc c. P feigned purpose? >> Not innocent instrument but also lacked mens rea, so no crime??? 2. P convicted? >>What offense did principal commit w/ Ds help?

a. Were other offenses natural and probable consequences of that offense? i. Also, D encourages P to hit V, but P uses deadly force, D may not be liable 3. Did D use P as instrumentality? a. Innocent P (excused: insane)? Or D manipulated P? >> Directly liable 4. P convicted of lesser offense? a. D intended greater offense? >> If homicide, then D can be judged according to Ds own mens rea. i. If other, can result of offense be separated (assault v aggravated assault)? >>D shouldnt be convicted of offense that didnt occur or its a single wrong b. Accomplice v Conspirator i. No agreement, concerted action? >> Accomplice only ii. Agreement, no concerted action? >> Conspirator only iii. Agreement, concerted action? >> Accomplice & conspirator 1. Pinkerton Doctrine: which a party to a conspiracy is responsible for any criminal act committed by an associate if it: a. (1) falls within the scope of the conspiracy; or (2) is a foreseeable consequence of the unlawful agreement b. Broad conspiracy? >> Conspirator liable for all foreseeable actions in furtherance of conspiracy. Accomplice liable only for actions in which D assisted. 2. MPC a. Conspiracy tracks accomplice liability. Conspirator must agree to aid in the particular offense. Accomplice liable only for actions in which D assisted c. MPC 2.06 i. by his own conduct or by the conduct of another person for which he is legally accountable, or both ii. Accountability 1. P not convicted/acquitted? >> Conviction is not a prerequisite. a. D can be convicted of greater offense? i. If D has different mens rea 2. P convicted? >> What offense did principal commit w/ Ds help? a. Liability ends at what D purposefully did. No foreseeable consequences. Except for felony murder rule 3. Did D use P as instrumentality? 2.06(2)(a) a. (1) Has mental state sufficient? (2) Causes innocent/irresponsible P to engage in crime? i. (Yes: D recklessly allows epileptic P to drive car, P recklessly kills V. No: D was unaware P was epileptic) 4. Not an accomplice? 2.06(6)

a. If D is victim of the offense b. Inevitably incident >> D cant assist in selling drugs to himself c. Abandonment? iii. Actus Reus 2.06(3)(a) 1. Solicit, aids, agrees to aid, attempts to aid or omits a legal duty? a. Agrees to aid? Not equal to conspiracy and doesnt join partnership of conspirators b. Attempts to aid? Aid doesnt have to be effectual i. Was P convicted of attempt? D can be convicted of attempt 5.01(3) 1. Was P stopped before substantial step? >> D still liable iv. Mens Rea: 1. With the purpose of promoting or facilitating the commission of the offense. 2.06(3)(a) a. Knowledge v Purpose? >> Only purpose 2. Crimes of recklessness/negligence? 2.06(4) a. (1) he was an accomplice in the conduct that caused the result; and b. (2) he acted with the culpability, if any, regarding the result that is sufficient for commission of the offense 3. What is Ps responsibility? a. D part of the conduct causing result (not just involved)? b. D acted with the same level of culpability? Negligence c. Ex: P negligent driving, D encouraged speeding, D and P negligent. OR P committed felony murder, D assisted in felony, strict liability 2. Solicitation a. Merger: If D2 completes murder, attempts or forms conspiracy, then solicitation mergers with the greater crimes. b. CL: i. Felony or Serious misdemeanor? ii. Actus Reus (invite/encourage/hire/request) 1. Did D actually communicate the solicitation? 2. Is D or D2 going to be the principal? D cant be principal. 3. Did D try to trick D2 using him as innocent instrument? iii. Mens Rea (Specific Intent) 1. Intent to communicate? 2. Intent for D2 to consummate the solicited crime? c. MPC 5.02(1) i. Mens Reas 1. Ds purpose is to promote/facilitate the commission of a substantive offense? ii. Actus Reus

1. Commands/encourages/requests D2 to engage in conduct that would constitute the crime or attempt? 2. Did D ask for D2s help? D can be principal iii. Defense: Did D completely/voluntarily renunciate? CONSPIRACY 1. CL: a. Merger: Conspiracy does not merge into attempt or commission b. Parties to Conspiracy: i. How big is the conspiracy? (Wheel v Chain) 1. D is liable for every offense committed by every other conspirator in furtherance of agreement 2. D doesnt have to know of other members ii. Has any member acted? Triggers liability for all c. Mens Rea i. Intend to agree? ii. Intend that the object of their agreement be achieved? (unlawful act or accomplish legal act by unlawful means) iii. Can Ds intent be inferred from knowledge? 1. Affirmatively avoiding knowledge? 2. Merchant? a. Stake in the outcome? Sales at inflated prices? Portion of business? Unique goods for unlawful purpose? 3. D required to have knowledge of attendant circumstances? a. Maybe, USvFeola (murder a federal agent) but this would negate specific intent mens rea iv. Corrupt-motive doctrine? 1. Offense malum prohibita? (motive was morally acceptable but didnt realize actions were illegal) v. Plurality 1. Did two or more Ds have the mens rea (not undercover cops or lacks capacity to form the agreement)? d. Actus Reus (the Agreement) i. No overt act required; formation alone is enough ii. Express/physical agreement? If no, can it be inferred from circumstantial evidence (choreographed action)? iii. Knowledge of all details? Agree to every part? Unnecessary iv. D joined in action but not in formation of agreement? v. Multiple crimes? 1. How many agreements were formed? Did first agreement envisage future acts? e. Defense i. Impossibility? No defense ii. Abandonment? Conspiracy complete upon agreement and overt act

1. Avoid further liability (attempt/commission)by withdrawing and communicating withdrawal 2. Moment of abandonment SOL begins to run iii. Whartons Rule: You cannot conspire to commit an offense that requires 2. MPC 5.03 a. Merger: D made separate overt act of preparation? Or caught in Act 1 before completing Act 2? b. Parties to the Conspiracy i. D1 knows that D2 has conspired with others? Joins entire conspiracy regardless if he knows others identity c. Mens Rea i. Made with the purpose of promoting/facilitating a crime? 1. Knowledge is not enough. ii. Plurality 1. Did D, standing alone, agree to the conspiracy? (D could be only one w/ requisite mens rea) d. Actus Rea i. Agreement? 1. D agrees with one or more to solicit/attempt/aid planning or commission/commit a crime? ii. Overt Act? 1. Preparation or perpetration? Perpetration can merge iii. Multiple Crimes? 5.03(3) 1. Part of the same agreement? Part of continuous conspiratorial relationship? e. Defense i. Impossibility? No defense ii. Abandonment? 1. Renounce his criminal purpose but to also thwart the success of the conspiracy HOMICIDE (CL) 1. Murder killing with malice aforethought a. Aforethought? >> Premeditation not required; can be spur of the moment b. Malice? i. the intention to kill a human being; 1. Intent? a. Willful, Deliberate, and/or Premeditated? >> 1st degree ii. the intention to inflict grievous bodily injury on another; 1. Generally, 2nd degree iii. an extremely reckless disregard for the value of human life; or 1. Generally, 2nd degree iv. the intention to commit a felony during the commission or attempted commission of which a death results 1. Was it a inherently dangerous felony?

a. In the abstract? >> Cant be performed w/o creating a substantial risk (robbery) b. In the manner performed? 2. Merger: a. Did the felony have an independent felonious purpose? >> Cant simply convert manslaughter/assault to felony murder. 3. Res gestae: a. Was there a proximity b/w felony and homicide? i. Happened between attempt and reaching a place of temporary safety? ii. Homicide was truly caused by felony? 4. Did other party kill during the homicide? a. If other party was a non-felon an adversary/bystander to the crime? >> D not liable b. If other party was a co-felon (agent)? >> D liable c. Proximate Cause Approach: Were the actions of other parties foreseeable result of felon? >> D liable c. Degrees (originally no degrees) i. First degree ii. Second degree intentional but not premeditated, intent to inflict greivious injury, reckless (depraved heart), some felony murder 2. Manslaughter - unlawful killing without malice aforethought a. Voluntary - Sudden heat of passion resulting from adequate provocation i. Acted in heat of passion? >> Can be anger, fear, desperation ii. Result of adequate provocation? 1. Would circumstances render an ordinarily prudent person incapable of self control (reflection)? a. Words alone? >> Never adequate b. Which factors to consider in assessing reasonable? >> Subjective v Objective? i. Gravity of provocation? >> More subjective 1. Consider Ds situation or background? a. Y: Chinese have different cultural values b. N: Man had ii. Level of self control to be expected? >> More objective 1. N: Short tempered, drunk D iii. No reasonable time to cool off? >> Generally, strictly applied iv. Provocation caused passion/homicide? b. Involuntary Criminal Negligence i. Lawful act? >> Done in unlawful manner w/o due caution ii. Gross deviation from standard of reasonable care? >> Not like tort negligence

iii. D aware of the risk? >> D is probably reckless if she was aware of substantial and unjustifiable risk that manifested indifference to human life c. Misdemeanor-Manslaughter i. Was misdemeanor inherently dangerous? >> Can limited to dangerous one. May not apply to malum prohibita ii. Was it morally wrong? >> May apply HOMICIDE (MPC) 1. Criminal Homicide - unjustifiably and inexcusably takes the life of another human being 210.0(1) a. purposely, knowingly, recklessly, or negligently. 210.1(1) 2. Murder a. Purposely, knowingly, b. Recklessly i. D manifested an extreme indifference to the value of human life? ii. Felony Murder? >> Recklessness is non-conclusively presumed 1. D committed felony in non-reckless manner? Jury may, but need not infer recklessness 3. Manslaughter a. Recklessly: manslaughter is lesser offense of murder i. Was Ds indifference not extreme enough? b. Murder but result of extreme mental or emotional distress (EMED) i. Incorporates sudden heat of passion/partial responsibility. D must provide evidence, govt must disprove beyond reasonable doubt ii. What were the circumstances of Ds situation as D believed them to be? >> 1. Subjective: Was EMED sufficient to cause loss of control? 2. Objective: Is there a reasonable explanation/excuse for the EMED, not for homicide? >> Still taken from POV of D a. Include personal handicaps, external characteristics BUT exclude idiosyncratic moral values iii. Much broader than Common Law (differences) 1. No specific provocative act is required to trigger EMED defense 2. No need to involve an injury/provocative act perpetrated upon the D 3. The provocation doesnt have to be within a certain category 4. No rigid cooling-off rule. No need for suddenness c. Misdemeanor/Unlawful-act? >> Not recognized as homicide d. Criminal Negligence? >> Not recognized bc absence of subjective fault 4. Negligent homicide.