Criminal Law 120 Sharon Dolovich

I. PURPOSES OF PUNISHMENT.................................................................................................2
Retribution...................................................................................................................................2
Deterrence....................................................................................................................................2
Rehabilitation...............................................................................................................................3
Incapacitation...............................................................................................................................3
II. ACTUS REUS (CULPABLE CONDUCT)..................................................................................3
III. MENS REA (CULPABLE MIND).............................................................................................4
Doctrine.......................................................................................................................................4
Mistake of Fact............................................................................................................................5
Strict Liability (w/o demonstrated culpability)............................................................................6
Mistake of Law............................................................................................................................7
Cultural Defense..........................................................................................................................8
Proportionality.............................................................................................................................8
Legality........................................................................................................................................9
IV. HOMICIDE..............................................................................................................................10
A. 1ST vs. 2ND DEGREE MURDER..........................................................................................11
B. MURDER vs. VOLUNTARY MANSLAUGHTER............................................................11
I. Common Law Approach-Provocation Required................................................................12
II. MPC Approach-Triggering Event Unnecessary (Extreme Emotional Disturbance)........13
The trend towards the subjective?.............................................................................................13
C. 2nd DEGREE/DEPRAVED HEART MURDER vs. MANSLAUGHTER...........................14
D. INVOLUNTARY MANSLAUGHTER vs. CIVIL LIABILITY.........................................15
E. FELONY MURDER............................................................................................................16
Doctrine.................................................................................................................................16
Purpose/Policy.......................................................................................................................17
Limit 1...................................................................................................................................17
Limit 2...................................................................................................................................17
Limit 3...................................................................................................................................17
Limit 4...................................................................................................................................18
Limit 5...................................................................................................................................18
Agency vs. Proximate Cause Theories......................................................................................18
F. DEATH SENTENCE.............................................................................................................18
Doctrine-Stop Inconsistent Application.................................................................................19
Reactions: Statutory Mandatory DP vs. Guided Discretion.................................................19
Reactions-Systematic Racism, with Proof.............................................................................20
V. RAPE.........................................................................................................................................20
Actus Reus.................................................................................................................................20
Mens Rea-Mistake of Fact of Consent......................................................................................21
VI. JUSTIFICATION....................................................................................................................22
Doctrine.....................................................................................................................................22
NY common law: objective and subjective components reasonable man in Ds situation
COMPLETE DEFENSE OR NOTHING!.................................................................................22
The Critics.................................................................................................................................22
Past Abuse..................................................................................................................................23

Battered-Woman Syndrome Defense?...................................................................................23

Imminent Danger Requirment...............................................................................................24
NECESSITY - Choice of Evils..................................................................................................25
Non-Violent Necessity Rejected-Policy Grounds.................................................................25
MPC vs. NY Penal Law vs. Illinois.......................................................................................26
VII. EXCUSE................................................................................................................................26
DOCTRINE...............................................................................................................................26
DURESS....................................................................................................................................27
INSANITY................................................................................................................................28
I. PURPOSES OF PUNISHMENT
Punishment includes fine, probation, imprisonment, or death.
Prison means 1) loss of security, 2) loss of goods and services, 3) lack of heterosexual relations
Justifications for Punishment: (i) Retributive (backward looking), (ii) Utilitarian (forward looking,
including prevention, rehabilitation, and incapacitation)

Retribution
Kant: man must be punishable before punishment will benefit him or others; right of
retaliation (jus taliones) must drive public court, but preserve human dignity
James Stephens: sentence seals moral reaction of the public; social pathos
Royal Commission on Cap Pun: punishment allows society to express denunciation
(again social cleansing); proportionate punishment maintains respect for the law
Feinburg: punishment is symbolically significant represents disapproval and judgment;
condemnation fuses societys feelings of resentment (desire for revenge) and reprobation
Durkheim: punishment keeps society together-sustaining common consciousness
Michael Moore: moral culpability demands punishment (moral dessert of the criminal,
duty of the public); not to pacify victim, nor the public will
Murphy: (Marxist Take) Retributive theory presupposes men are of a community of
shared values and rules; punishment is deserved b/c one owes payment for shared
payment. But inequality creates need from some and capitalist society encourages greed.
Bring lower income into social fold and they might recognize benefit of retribution.
Moore: prevention, rehabilitation, and incapacitation (utilitarian) are not sufficient or
acceptable to society; so, retributivism is left
Deterrence
Bentham: men are rational calculators, driven by pain & pleasure; threat of pain deters
Posner: rational actor model-across social and economic classes, criminals respond to
changes in opportunity costs
Gilligan: nonsense; violent people are motivated by shame and do not calculate
Fleisher: social defects established in childhood lead to criminality; cant be deterred
Increase Deterrent Effect: increase rate of conviction, or increase severity of punishment;
but the first is costly, and the second is empirically doubtful
Kahan: public shaming has financial and social implications; substitute for imprisonment
Massaro: on the other hand, shaming may encourage offenders to seek out subcultures
that accept the particular norm violations
Gilligan: the emotion of shame is the ultimate cause of all violence; increase it and youll
get more, you fools; prisons and fines are at least controllable, measured by the state
2

Rehabilitation
Radzinowicz & Turner: penal policy moved through 3 stages: 1) utilitarian deterrence
(extreme punishment for any offense); 2) retributive and proportionality (individual
fairness, but individuals objectively); 3) subjective individual fairness
Moore: rehab ideals: 1) make streets safer, 2) improve offenders lives. Second,
paternalistic approach unwarranted b/c it takes resources away from those more worthy,
value of liberty threatened unless disorderly or young, and the threat of misuse
Vitiello: certain offenders are amenable to rehabilitation and could warrant resources
Hirsch & Maher: programs that succeed in rehab are generally well-funded, staffed, and
implemented; blameworthiness and susceptibility to treatment and not nec. Correlated
Incapacitation
DiIulio: It costs society twice as much to let prisoner loose than to lock them up. Critics
argue that DiIulio overestimates the number of crimes likely to be committed by released.
Dept. of Justice: Target high-rate offenders-selective incapacitation. Critics argue unequal
sentences for equal crimes unfair b/c future behavior unpredictable. But arguably judges
already do some of this subjective sentencing. Criticism-punishment is deserved.
Donohue & Seligman: Redirect cost of incarceration to early crime prevention?
Regina v. Dudley and Stephens (1884) KS 135
Facts: Dudley, Stephens (Ds), Brooks, and Parker stranded at sea on July 5, w/ little hope of
rescue. On July 25, Ds kill and eat Parker. Ds and Brooks rescued on July 29.
Issue: Was the killing murder under the circumstances?
Reasoning: Temptation to act in these circumstances does not constitute necessity. Necessity to
preserve life is not unqualified. Guilty of willful murder, and sentenced to death. DETERRENT.
The Hand of Punishment: State vs. Individual
Against State: officials can have personal biases, unequal treatment; political agendas
Against Individuals: lack of legitimacy, not deliberate, not consistent, less security
Overall Concerns: Security, Legitimacy, Individual Fairness/Liberty, Distribution
II. ACTUS REUS (CULPABLE CONDUCT)
Actus reus-positive act or omission when there is a duty resulting in criminal liability. MPC S
2.01-conduct must include voluntary act or the omission to perform an act physically capable of
Act must be VOLUNTARY.
Martin v. State (1944) KS 173
D arrested in home and taken by police on highway. Manifested drunken condition. Convicted of
being drunk on public highway. Overturned b/c action was not the product of the effort of
the actor (MPC).
Issues: If will not an issue, we live in Paranoia. Extremely difficult to prevent invol. actions.
People v. Newton (1970) - 175
Act must be VOLUNTARY. D struggles w/ police officer, gets shot in stomach. In unconscious
daze, D shoots police officers. B/c of unconsciousness Ds actions involuntary. Not guilty act.

Habits are considered voluntary b/c they are known and predictable. In People v. Decina (KS
179), epileptic D chose to drive but not to have seizure. Subsequent crash was transitive
voluntary action b/c risk was known. Unlike Martin & Newton: in Decina, prior knowledge.
Nonactions vs. excused actions: convulsions and somnambulism are thought of as nonactions
and not punishable, while mistakes and accidents can mitigate or potentially excuse actions.
Legal duty must exist for OMISSION to be punishable. Moral obligation is not enough.
Pope v. State (1979) KS 183
D takes in deranged Norris and her 3-month old daughter for the weekend. In religious frenzy
Norris beats child to death. Because D failed to prevent abuses or seek medical help for
PROTRACTED period, she could be liable. But, she is liable for omission only if there is legal
duty to act. There isnt in this case, although there is arguably a moral obligation to intervene.
Policy: Convicting D could deter Good Samaritans; libertarian infringement (Kleinig @ 189).
Jones v. United States (1962) KS 190
D was friend of mother of 10-month old illegitimate baby. Child dies while in Ds care. Not clear
that D was legally responsible for baby. No proof of contract or assumption of natural protector.
Commonwealth v. Cardwell (1986) KS 192
Stepfather sexually molests daughter for 4 years. Mother fails to take sufficient steps to remove
daughter from harm. 2 letters to father, application for school transfer, and preparations to move
daughter to grandmothers house not enough. Legal duty demands more; though husb. abusive.
Issue: Perhaps a gender bias- mothers legal duty > self-preservation. CAPACITY TO ACT?
Black Letter: Words can be punishable (conspiracy, aiding & abetting). Good Samaritanism not
generally legally binding in America.
III. MENS REA (CULPABLE MIND)
Mens rea-mental state required by offense to accompany act that produces or threatens harm
Doctrine
Material Elements of Offense:
(1) Nature of conduct (always present); (2) attendant circumstances (sometimes present); (3)
result (often present)
Must prove a level of mens rea with respect to each element!!!
Regina v. Cunningham (1957) KS 205
D larcens gas meter in basement of house. Loosely cemented wall in basement connecting his
residence to those of parents-in-law. Statute requires maliciously causing poison to endanger life.
Court interprets it to mean either intent or recklessness, i.e., foresight of consequence. Trial judge
suggested the wickedness of act was sufficient. App ct. quashes, requiring mens rea.
Regina v. Faulkner (1877) KS 206
Sailor lights a match when trying to steal rum. Ship burns down. Simply b/c act leading to
burning (theft) was bad, state still has to prove some level of mens rea proving malice.
According to MPC S 2.02 there are four levels of culpability:
(1) Purposely: conscious object to engage in conduct or cause result and (if applicable) belief
or hope for existence of attendant circumstances (subjective, varies by element)

(2) Knowingly: aware that conduct is of certain nature or that circumstances exists and that
conduct is practically certain to cause result (if applicable; subjective, varies by element)
(3) Recklessly: conscious disregard of a substantial and unjustifiable risk; actors disregard is
gross deviation from reasonable standard of care (subjective-awareness, objective-nature
of risk)
(4) Negligence: no state of awareness, but actor should be aware (reasonable man standard);
actors failure to perceive risk is gross deviation from reasonable standard of care (obj.)
Notes: If no level mentioned in statute, reckless is minimum reqd. Culpability assigned to
offense applies to all material elements, unless o/w stated. Higher culpability may substitute for
lower requirement. Awareness of high probability of existence sufficient for knowingly.
In Santillanes v. New Mexico (1993 KS 211), line drawn b/n criminal and civil negligence.
Black letter: Motive irrelevant to criminal liability. MPC disfavors strict liability.
Specific vs. General Intent (used in some non-MPC jurisdictions)
Specific: (1) specific result in mind, beyond conduct (burglary), or (2) actor must have
knowledge of particular fact (if bigamy required D to know husband still alive).
General: (1) conduct enough, no further purpose necessary (larceny w/o intent to deprive
permanently, or (2) no knowledge of particular fact necessary
U.S. v. Nieswender (1979) KS 217
D suggests to attorney that for $2,000 he could get jury member to vote a certain way. No proof
that he could, and D argues no specific intent to undermine judicial process. But court applies
negligence standard of reasonable foreseeability; awareness of likely result unproven.
Notes: Specific intent must be proven separately. Can transform lower grade offense to higher
grade offense. In Nieswender, could transform blackmail into obstruction of justice (>). Danger:
objective standard of negligence could increase punishment for many more innocent crimes.
Deliberate ignorance can qualify as knowledge under MPC S 2.02(7).
U.S. v. Jewell (1976) KS 220
D convicted of knowingly transporting marijuana from Mexico to the U.S. in secret compartment
of car. MPC S 2.02(7) requires awareness of high probability of existence (< than positive
knowledge; suggests degrees of knowingly). Court reasons that deliberate ignorance can qualify.
Policy: dealers and/or users should not be able to use deliberate ignorance to advantage.
Dissent: convicted only on negligence standard; D shouldnt be guilty if he actually believed
substance was not in the car-no awareness
Rule: 1) awareness of high probability of conduct; 2) purposeful avoidance of learning conduct
Mistake of Fact
Can be a valid defense if (1) mistake or ignorance NEGATES necessary mens rea or (2) mistake
or ignorance establishes a state of mind constituting a defense stipulated by law.
Under MPC: mistake defeats purposely or knowingly, but if negligence is the standard, the
mistake must be proven REASONABLE (PA, however, requires reasonable excuse for all levels)
Should moral norms trump reasonable mistake as a defense? Lesser wrong?
Regina v. Prince (1875) KS 226

D convicted of unlawfully taking an unmarried girl under 16 w/o consent of the parents. The
appellate court affirms conviction, arguing that the act was taking a girl in anothers possession
without consent. A guilty mind was necessary for these three elements, not to the circumstance of
the girls age. Therefore a mistake of the circumstance was irrelevant; didnt negate the fact that
D took the girl without her fathers permission. Further, (1) it was morally wrong (strict liability)
to take a girl, and (2) reckless to do so w/o permission. Grounded in SOCIAL NORMS.
Established lesser wrong principle: if moral wrong (in society), convict of the greatest offense.
Dissent: Standard should be: (1) reasonable grounds to believe, and (2) does believe. If yes to
both, then mistake is a valid excuse and there is no crime.
White v. State (1933) KS 227
D abandons pregnant wife, although he didnt know that she was pregnant when he left her. The
court ruled that knowledge was not required, analogizing to statutory rape and applying a strict
liability standard. Unlike in Prince, where the age was seemingly arbitrary, pregnancy allows a
bright line test and a clear indication of societys norm, which the statute was created to address.
3 ways to characterize conduct: (a) conduct neither immoral, nor illegal (mistaken umbrella); (b)
immoral but not illegal (arguably Prince-immorality according to society outweighs mistake
defense); (c) illegal, but lesser offense (mistaken blanks are bullets).
Notes: Most jurisdictions favor neutralization of mens rea by mistake. MPC holds you to lesser
crime if that is all you intended. But Prince dissent suggests that the result should define crime.
Strict Liability (w/o demonstrated culpability)
Public welfare offenses, felony-murder, statutory rape. Strongly disfavored by MPC.
Punishments for welfare offenses generally lower since onus on prosecutors so low. Overarching
problem: punishment regardless of culpability. Can there be a deterrent effect?
In Balint (1922 KS 236) the defendants were convicted of selling coca derivatives w/o an order
form required by the Narcotic Act of 1914 and given 5-year sentences. The court reasoned that a
defense of ignorance is insufficient when the statutes goal is social betterment. The court
indicated a BALANCING TEST: likelihood of prosecuting innocent seller vs. exposing
innocents to potential harm.
In Dotterweich (1943 KS 236) the defendant, CEO, was convicted of shipping misbranded (2
counts) in interstate commerce in violation of Federal Food, Drug, and Cosmetic Act. The court
reasoned that the spread of INDUSTRIALIZATION has left consumers open to many harms,
suggesting that the state needs to protect innocents from danger.
The U.S. Supreme Court went the other way in Morissette v. U.S. (1952 KS 237). Defendant
was a junk dealer who took bomb casings from an Air Force practice range, converted them into
art, and sold them to the public. Claimed that casings had been abandoned. The court reversed
the strict liability conviction by the appellate court, arguing (1) that mens rea is rooted in
INDIVIDUALISM (libertarian) and (2) that the theft component of the U.S. act falls under
common law, requiring INTENT. Yet, in dicta, the Court argued that in certain public welfare
offenses, regardless of intent, the injury to others from certain crimes is the same -> thats where
strict liability should be applied.
Note: Henry Hart argues that strict liability makes more sense for acts recognized as MORALLY
WRONG/BLAMEWORTHY (Princes actions), not regulatory offenses of which the moral

quality is often neutral (like the trial court judge in Cunningham-D should be guilty b/c the act
was wicked, and he knew he shouldnt have been doing it). Look to UNDERLYING
CONDUCT! Also, Schulhofer argues that a strict liability standard DETERS only valuable
actors, not the most confident or reckless.
In Staples v. U.S. (1994 KS 241), the defendant was convicted by the trial court of possession
of an unregistered firearm, violating the National Firearms Act, punishable up to 10 years in
prison. But D had bought the gun second hand and the metal piece preventing automatic firing
had been filed down. He didnt KNOW it was capable of this. Supreme Court argues this case is
unlike Balint or Freed (grenades), b/c in those cases Ds knew particular danger of devices. But
the majority of Americans have guns and have had guns; convict Staples and you risk convicting
many innocents. That would yield the OPPOSITE desired effect of welfare crimes (protect).
When is it appropriate to read strict liability into a statute? (1) express language; (2) legislative
history (Balint); (3) purpose would be obstructed by mens rea requirement; (4) public welfare
demands it (potential harm high); (5a) seller is in much better position to ascertain information or
(5b) Ds has a good opportunity to know the facts; and (6) prosecutors would have tough time
getting sufficient proof.
Mistake of Law
In general a mistake or ignorance of law is not a valid defense.
People v. Marrero (1987 KS 255) CONVICTED
Defendant was prosecuted under a NY statute (S 265.02(a)(1)(a) which exempts peace officers
from needing licenses for guns. D looked up definition of peace officer in another statute and
understood that it included correctional officer (Ds profession). The majority decided that the
mistake of the law was not a defense b/c (1) it would encourage people to try to interpret the law
(anti-Holmes) and (2) it would create a legal loophole for wrongdoers. Dissent: deterrence cant
be achieved if D didnt KNOW he was committing a crime (in his mind, innocent).
Another interpretation: Exemption for a peace officer was not considered a material element of
the offense defined in the statute; therefore no mens rea was required.
Exceptions: MPC 2.02(9) allows a mistake of law offense only (1) if after the action (taken upon
a reasonable understanding of the law) the law is declared erroneous or invalid, (2) if statute
requires knowledge of law (sulfuric acid hypo), or (3) collateral mistake of law (knowledge of
some other law grounds material element of offense). Why? Guard for innocents.
In Regina v. Smith (1974 KS 261), the defendant was ACQUITTED b/c he made a
COLLATERAL mistake of law-specifically, to the law of property. He installed the floorboards
which he later ripped up. Not only was his mens rea of taking (conversion) negated by mistake of
fact, but he was prosecuted under one law (conversion) which required understanding of anotherlaw of property. Compare to DIRECT mistake of law (not knowing the law existed)-e.g., Chinese
immigrant strangles adulterous wife. Another ex. of collateral: Woods (KS 262) marries a man
who earlier instituted divorce proceedings in NV. They returned to Vermont, and she believed she
was not committing adultery-but the Blanket Act in VT made it a crime.

In U.S. v. Albertini (1987 KS 268), the defendant was ACQUITTED b/c the court found that he
reasonably relied upon an official statement of the 9th circuit app ct.-granted him permission to
protest at naval base, despite having received notice from the base. The decision is appealed to
the U.S. Supreme Court, which later reverses the decision. But in the meantime, D protested at
the base again. Mistake of law reasonable defense? (1) If there is some doubt (cert granted), then
reliance may NOT be reasonable. (2) If there is no reasonable doubt, then may rely. PLANNING
In Hopkins v. State (1950 KS 270), on the other hand, the defendant was CONVICTED for
advertising marriage services despite state law. Advice from the States Attorney was to the
contrary, but that is insufficient ground for ignorance defense. Again, discourage private interp.
In Raley v. Ohio (1959 KS 271) the Supreme Court went the other way, following the MPC
S2.04(3) in denouncing entrapment by estoppel. In Raley, Ds had been told by commission
investigating un-American activity that they could take the 5th. Bad advice given Ohio law at the
time. They were ACQUITTED of refusing to answer questions b/c advice was from the STATE.
Cultural Defense
FOR Cultural Defense
No mens rea total ignorance of law
Different moral conception [Hart pre-conception]
Individualized justice
Commitment to multi-culturalism
Prevent cultural alienation

AGAINST Cultural Defense

Unequal treatment (Ds and victims)
Practical difficulty in drawing standards
Shared moral norms in single state
Increases suspicions of other cultures (alienation)
Responsibility as a citizen

Background cases:
(1) Mona immigrant of the Hmong tribe of Laos kidnaps and rapes Loatian-American
woman (CA). Practice for future wives in hill tribe. D sentenced to only 120 days in jail
and forced to pay victim $900.
(2) Chen Chinese immigrant bludgeoned unfaithful wife to death w/ a cleaver in a
customary attempt to cleanse the family honor (NY). D is acquitted of murder.
(3) Kimura Japanese immigrant drowns two children in Santa Monica but fails to kill
herself in murder-suicide after discovering husbands infidelity. 1 year in prison.
How could we frame a statute for the cultural defense (none exist currently in the U.S.)?
-high standard of evidence for proving something is a cultural practice
-victim must be from same cultural background, or family
-nature of Ds presence in the United States (permanent, tourist?)
Proportionality
Major concerns: legitimacy of justice system; individual rights of offenders; racist/equality
overtones-50% of criminals in prisons are African Americans (KS 280-285)
Jeremy Bentham argues that in order to deter people from committing serious crimes,
they must be punished more severely for violating those crimes. But justice beware: we are
inclined to err on the extreme side. Further, a premium should be added to the punishment if
certainty and proximity of conviction are low or distant, respectively.

A.C. Ewing argues that (1) degrees of punishment help influence popular morality and
(2) if penalty is excessive the harm of the crime is de-emphasized, with the penalty getting all the
attention (and prisoner getting sympathy) counterproductive, shakes INTEGRITY of system.
Stephen points to struggle between goals: deterrence vs. vengeance/retribution. To deter,
those w/ greatest temptation (e.g., poor) must be threatened w/ greatest punishment. Yet, those w/
least temptation who may, for example, commit the same crime for sport, we wish to punish out
of vengeance more than those w/ great temptation.
Narrow window for deviation from statutory sentencing only gravity of offense can mitigate
In Harmelin v. Michigan (1991 KS 283), the Defendant was charged w/ possession of 672
grams of cocaine. Sentenced by the state to life imprisonment w/o parole. Supreme Court splits
on this one, but the CONVICTION was ultimately upheld (i.e., not disproportionate).
(a) Scalia and Rhequist for plurality-no proportionality review; let legislative intent be
followed (too subjective for courts)-strict deferentialist rule
(b) Kennedy, OConnor, Souter concur-but if grossly disproportionate, 8th Amend. bars
(c) White, Blackman, Stevens, Marshall dissent-stick to Solem test
Solem v. Helm (South Dakota) established a three step test for proportionate sentencing:
(1) inherent gravity of offense, (2) comparison w/in jurisdiction, (3) comparison to other jurisd.
Subsequent courts have interpreted Harmelin standard as follows (grouping 5 justices):
Focus on part 1 of Solem test to mitigate statutory sentence-gravity of offense. Courts should
assess the circumstances surrounding offense before blindly applying the statutory sentence
(289). Wife-slapping does not warrant 20 years (Thomas v. State). Go to parts 2 and 3 of Solem
test only if there is significant disagreement about gravity of offense.
Legality
Can you be convicted if offense isnt exactly on the books? Crimes against the public interest.
Principles of legality:
(1) separation of powers-judges shouldnt create crimes/no common law crimes;
(2) no retroactive changes to law or penalty-notice, foreseeability, threat to liberty;
(3) laws should be defined precisely to guide private conduct and confine discretion of
police and courts
(4) strict construction-if any ambiguity, read criminal statute in favor of D
If judicial enlargement foreseeable, beware liability. What is a human being?
Keeler v. Superior Court (CA Sup, 1970 KS 294) NOT GUILTY.
D encounters ex-wife in advanced state of pregnancy and stomps baby out of her, kneeing her
in the abdomen. Fetus delivered stillborn. Murder conviction w/ malice aforethought overturned.
Majority: The statutory definition of human being in 1850 didnt include unborn fetus. Thats
whats on the books today. There are two hurdles to the court updating the law: (1)
jurisdictional/separation of powers, (2) constitutional/due process-no ex-post facto laws (Art I
9, 10). If the law isnt prospective previously INNOCENT acts become guilty. Not foreseeable;
problem forming private behavior.
Rule: Only if judicial enlargement is reasonably foreseeable may D be liable.
Dissent: Evolve! Courts have expanded the length of death-why not of birth, given medical
advances? (1) Legislators intended for the courts to interpret human being to a) serve objective

of homicide statute and b) promote justice. (2) Due process threatened only if enlargement
unforeseeable. Given expansion of fetal viability, it Keeler should have seen it coming.
The court cited Bouie v. City of Columbia (1964 KS 295), where 2 black men sat in a
restaurant, were told to leave, and then arrested for trespass on prohibited entry. But there were
no signs posted and they were told to leave only after they had been seated in the restaurant.
Only guilty of remaining. The U.S. Supreme Ct decided that the SC courts ruling was
unforeseeable, and applying it to past conduct would violate due process of law. NOT GUILTY.
In Miranda (KS 298), a live-in boyfriend was charged with assault for doing nothing about the
mothers abuse to her 4-month old baby. No blood relation or other legally recognizable
relationship. CT Sup Ct remanded for trial, yet claimed that D had assumed a common law dutyfamilial relationship. On remand, app ct says that no person of ordinary intelligence in the
defendants place would have had fair notice that he had a duty to protect the baby or seek
medical attention. NOT GUILTY.
The revenge of social duty and common sense. In Nash (KS 299), Holmes upheld Ds
conviction for obstructing trade in violation of Sherman Anti-Trust Act. He established a broad
rule: common social duty would under the circumstances suggest a different conduct. And in
Ragen, the U.S. Sup Ct sustained conviction for illegal tax deduction. True, the statute requires a
jury to decide reasonableness (negligent standard), but its enough of a practical guide to
discourage such conduct (i.e., foreseeable prosecution). Finally, Lord Simon argued that those
who sail as close as possible to the wind inevitably run some risk, since guilt under the law is
often a question of degree. You can be certain act is illegal only once decided in court.
IV. HOMICIDE
The WHICH CRIME IS IT game!
First-Degree Murder

Second-Degree Murder

Voluntary Manslaughter
Involuntary Manslaughter

Felony-Murder
Misdemeanor-Manslaughter
Negligent Homicide

Common Law
Willful, deliberate, premeditated (CAGuthrie, some time necessary, 3-prong
premeditation test; PA-Carroll, collapses to
single instant)
Not premeditated (depraved heart=conscious
disregard/subjective of high risk of death w/
no reasonable justification-Malone)
N.B. Minority of jursid -> recklessness +
Mitigating circumstances, heat of
passion/provocation (provoke triggering
event necessary-Maher)
Negligence plus (objective standard of
awareness of high risk of serious harm w/ no
reasonable justification-Wellansky)
N.B. Minority of jurisd -> subjective
Committed in the course of a felony
Committed in the course of a misdemeanor
Nope.

MPC (avoids strict liability)

Doesnt differentiate b/n degrees
P, K or recklessness plus=subjective,
extreme indifference to the value of
human life

Doesnt differentiate.
Extreme emotional disturbance (no
provoke triggering event necessaryCasassa) Ordinary recklessness.

Nope mens rea required

Negligence plus.

10

A. 1ST vs. 2ND DEGREE MURDER

Carroll standard: intent, deliberation, premeditation collapsed to a single instant.
In Commonwealth v. Carroll (PA KS 396), D killed his abusive, sadistic, and nagging wife.
They had been married for 7 years. D had been on solid career path in army but was forced b/c of
wife. Wife suffered fractured skull and schizophrenia in 1958; subsequently abusive toward
children. D kept a loaded pistol on the windowsill by the bed for protection. Following long
argument, wife falls asleep. D thought about the gun and grabbed it, shooting her twice in the
head.
Court reasoned that (1) no time is too short for a wicked man to frame in his mind the scheme
of murder, enough for premeditation. (2) Further lack of good planning does not indicate lack of
premeditation. Its about the killing moment, not afterthoughts. (3) Final blow: psychiatrists
shouldnt decide the state of mind of a killer; courts should. Affirmed: GUILTY OF 1ST DEG.
MURDER b/c remembered gun, deliberately took it down, deliberately shot wife twice.
Young v. State (Al. 1982 KS 400) puts a colorful spin on this: premeditation and deliberation
may be formed while the killer is pressing the trigger that fired the fatal shot. Young involved a
card game among friends gone awry, ending with the D shooting and killing 2 friends. GUILTY
OF 1ST DEG MURDER.
Versus Guthrie standard: some time must pass to indicate possibility of deliberation
In State v. Guthrie (WV KS 400) D stabbed a co-worker in a restaurant kitchen in the neck w/ a
knife. D suffered from panic attacks, chronic depression, and had an obsession w/ his nose.
Victim joked around w/ D and snapped a towel on Ds nose. D removed gloves, pulled knife
from pocket, and stabbed victim.
The court reasoned that the jury instruction was wrong to equate deliberation and premeditation
w/ formation of intent. Instead, there must be some time between formation of intent and
killing, to indicate SOME REFLECTION. Reversed and remanded-The impulsive killer is
NOT GUILTY OF 1ST DEG MURDER.
The Guthrie court established a 3-part test to determine premeditation (not all necessary):
(1) Planning activity;
(2) Prior relationship suggesting motive;
(3) Nature of killing suggests preconceived design (e.g., poison vs. burst of violence).
Problem cases in applying premeditation standard:
Anderson (CA 1968 KS 404-405) provides a good example of a court applying the Guthrie
premeditation standard. D stabbed 10-yr old daughter of cohabitant. Nothing suggested planned
action (body left under boxes on the floor and blood throughout house), nothing in the prior
relationship, and 60 stab wounds suggests explosion of violence, NOT premeditated killing.
Problem: Pillsbury points out that the motive for the killing (sexual frustration and rage) is
morally disdainful. Applying the premeditation test missing the moral importance.
In Forrest (NC 1987), D shot terminally ill father, sobbing w/ emotion. GUILTY OF 1ST DEG
MURDER. Problem: Premeditation, no doubt, but behavior still aberrational.
B. MURDER vs. VOLUNTARY MANSLAUGHTER
We look to whether some mitigating circumstance existed. Provocation or emotional disturb.

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I. Common Law Approach-Provocation Required

Maher (Mich 1862 KS 407) established a 4-part standard: (1) actual provocation, (2) was
provocation reasonable, (3) insufficient cooling time, (4) no actual cooling. Note that (2) and (3)
are OBJECTIVE tests, as the court puts it on 408, sufficient for reasonable, ordinary human
nature to lose self-control, not necessarily to kill. D observed wife going into woods w/ man and
later returning w/ man. Friend told him, en route to bar, that Ds wife had been w/ man the day
before. D entered the bar, said something to V, then shot him through the left ear. The court
reasoned that having seen his wife go into the return from the woods w/ the man, followed in hot
pursuit, heard from a friend that they had been together the day before, great perspiration, and
hasty manner of shooting indicated provocation. Reversed and remanded. NOT GUILTY OF
MURDER.
Policy Problem: Dissent points out that cause of the provocation must occur in his presence.
Relaxing the standard for mere suspicion could encourage killings of innocents based on hearsay.
Words alone are not enough for provocation. Provocation must inflame the passion of a
reasonable man (Part 2 of Maher standard).
The Girourd court (MD 1991 KS 405), on the other hand, finds D GUILTY OF MURDER. D
and V were both in the army and had been married for 2 months. V filed charges for abuse,
threatening Ds career, verbally insulted D, and demanded divorce. Evidence that she had
committed adultery. V taunts D, asking him repeatedly what are you going to do? He pulls out
knife from behind his back and stabbed her 19 times.
The court reasoned that the provocation in this case was not enough to cause a reasonable man
to stab his provoker 19 times. Words are not adequate provocation. Further, the court said that
one should not focus on peculiar frailties of mind of D (rejection of subjective standard).
Roston (9th Circ 1993 KS 410) points out that provocation must be adequate for a reasonable
person in the heat of the moment to lose self-control and act on impulse. Its NOT about whether
a reasonable person would kill in the moment.
Provoking event must immediately precede killing (Part 3 of Maher standard).
In Bordeaux (8th circ 1992 KS 413), D was told during a party that V had raped Ds mother 20
years earlier. Ds mother later confirms. D, w/ friends, later beats V and finally slashes his throat.
No instant incitement. GUILTY OF MURDER. Problem: No room for rekindling? Here is
where JUDGE steps in-jury would likely find evidence prejudicial. In Alderson (man left wife
and newborn; husband of abandoned wife encounters man 2 years later and kills him), testimony
is not allowed. Probative < prejudicial. BALANCE B/N JUDGE AND JURY.
Problems: Sexual infidelity and homophobia
Provocation defense for infidelity generally used by men, reflecting male-centered perspective.
Policy: equality (sexism). Historical links to property. So courts interpret NARROWLY. IN
Dennis, the court REJECTED defense b/c D didnt witness intercourse, only other sexual acts. In
Turner (KS 412), the court REJECTED defense b/c D and V were not married, only cohabitants.
And in Araujo, a 17 yr old cross-dressing male had sexual encounter w/ 3 men. The men later
discover sexual orientation. Provocation defense claimed. Analogies to cultural defense.

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Victims other than the provoker and Ds who elicit provocation

In Mauricio (NJ 1990 KS 414), D was forcefully ejected from a bar. D hits head sharply on the
floor. D waits for 5 minutes. Another patron exits the bar. D mistakes him for bouncer and shoots
him dead. NOT GUILTY OF MURDER accidental victim of rage.
In Scriva, a father saw his father injured by a driver. D goes after driver w/ knife, but kills
bystander who attempted to restrain him. In Spurlin, D killed wife after intense argument and
then kills son. Both cases-GUILTY OF MURDER. Difference? V not associated w/ provoker.
Finally, in a bar argument, D first threatened girlfriend and her boyfriend. They attacked him. D
then stabbed boyfriend. GUILTY OF MURDER since D first provoked.
Alternatives? Victoria Nourse did a study of what percentage of intimate homicide cases go to
the jury-separation, infidelity, physical violence. 26% of separation cases went. Proposed:
Excuse must be warranted-if provoking action is illegal, then youve got a defense. O/w no!
II. MPC Approach-Triggering Event Unnecessary (Extreme Emotional Disturbance)
A broader doctrine: subjective and objective parts-problem: less guidance for court.
In People v. Cassassa (NY App 1980 KS 415), D dated V for a bit, but she becomes
disinterested. D forms obsession, eavesdropping, breaking into her apartment when shes not
there. Brought liquor as a gift. She rejects. He stabs her and drowns body in tub. The court found
D GUILTY OF MURDER b/c his condition/excuse was so peculiar to him and act was so
malevolent (no sympathy possible). Failed objective part of test -----
Rule: For EED defense, (1) D must act under the influence of EED (subjective, according to the
factual picture-threshold question), and (2) there must be a reasonable explanation for EED
(objective, reasonable person in Ds situtation as D believed circumstances to be).
Note: A jury decides both parts of the test, applying subjective approach to the first part and
objective to the second.
State v. Elliot (CN 1979 KS 418) established that no triggering event is required for EED. D
had feared his brother for years. One day he showed up and killed him. The court reasoned that
D suffered from significant mental trauma, which after a long period of time caused D to react
violently, seemingly without provocation. MANSLAUGHTER.
Judge vs. Jury: In Walker (NY 1984 KS 419), on the other hand, the judge refused to give
instructions on EED. A drug dealer didnt pay his supplier. Supplier confronts him in restaurant.
D shoots the supplier. Dissent argues that the question of whether D acted under EED should
have been left to a JURY to decide. MURDER.
The trend towards the subjective?
In Camplin, a 15-yr old boy was buggered against his will, then mocked. Shattered Vs
skull w/ frying pan. Judge instructed the jury that the reasonable man standard should be one
of Ds age and gender. 2-part consideration for how much standard should be individualized: (1)
gravity of provocation (greater, then more individual characteristics should be shared); (2) selfcontrol to be exercised (totally objective reasonable standard).
Camplin applied: In Felton, the court applied an objective standard of a reasonable
person who is a battered spouse. In Morhall, a sniffing addict killed one who taunted him

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about addiction. The court said that Ds glue sniff addiction should weigh on courts evaluation
of gravity of provocation, but a person of ordinary self-control would not have reacted so. Guilty.
Against Camplin: In McClain D shot and killed husband of 9 years. He beat her on two
previous occasions, several years apart. The court decided that the battered woman status was
irrelevant. b/c inquiry required reasonable person test. In Bedder, the court acted away from the
subjective approach in Camplin (a later case). D was 18-yr old impotent male teased by a
prostitute, whom he later killed. Court applied a reasonable, un-impotent man standard.
MURDER. Outright rejected in England. See Smith, where clinically depressed alcoholic
stabbed and killed friend for stealing from him. The court adopts an objective test based on the
sufficiency of excuse-allowance for emotional human nature, but short of allowing someone to
rely on violent disposition (Policy: prevent chaos).
C. 2nd DEGREE/DEPRAVED HEART MURDER vs. MANSLAUGHTER
Differences: (a) degree of risk (murder=highest); (b) degree of harm (murder=death); and
(c) degree of justifiability (murder=not reasonable); (d) subjective awareness for murder.
Russian roulette game: [MALICE] act of wicked, depraved, and malignant heart=reckless
disregard of risk of death w/o justification
In Commonwealth v. Malone (PA 1976 KS 439), 17-yr old D took five-chambered gun from
uncles home, claimed to have loaded a single cartridge to the right of the chamber, asked 13-yr
old friend if he wanted to play Russian roulette. D pulled the trigger 3 times. Third shot fires.
Friend dies. The court said murder requires malice, the dictate of a wicked depraved and
malignant heart. The court reasoned that (1) D intentionally pulled the trigger, (2) did so
recklessly given 60% chance of firing, (3) aimed at vital part of Vs body. No motive. Guilty of
2nd DEGREE MURDER despite the fact that killing was unintentional.
Problem: Hardness of heart? In Roe, another Russian roulette game gone awry, D expressed real
remorse after accident. MURDER but dissent argues that evidence falls short of depraved
indifference.
MPC applied: In Davidson (Kansas 1999 KS 442), two Rottweilers escape again, killing an
11-yr old child waiting for bus. 2nd DEGREE MURDER b/c D ignored past incidents, advice of
dog trainers, failed to contain dogs extreme indifference to value of human life.
Drunk driving cases: questions of awareness and control.
In U.S. v. Fleming (US App 4th circ 1984 KS 443), D drove while extremely intoxicated in the
northbound lane traveling south on GW parkway, at 80 mph in and out of traffic and hopping the
median, killing another driver in collision. Convicted of 2ND DEGREE MURDER b/c of malice
aforethought, reflected in extreme recklessness , or total disregard for others safety w/
awareness. The court decided that the wanton and reckless behavior was a gross deviation from
a reasonable standard of care, with a heart that was w/o regard for the life and safety of others.
Note: He may ordinarily have convicted of manslaughter b/c of drunken state, but the extremely
reckless nature of driving pushed him beyond negligence plus (issue of degree).
In Pears, D was told by 2 cops and a friend that he was too drunk to drive. D does so anyway,
killing another. B/c he was put on notice, D had subjective awareness of risk. And in Watson,

14

court reasoned that since D chose to drive to drinking establishment, he must have known he
would drive home while intoxicated. Subjective awareness imputed. MURDER FOR BOTH.
Finally, the court in Dufield said that b/c D chose to become intoxicated, he was aware of
possible subsequent extremely dangerous actions. BROAD approach.
D. INVOLUNTARY MANSLAUGHTER vs. CIVIL LIABILITY
Common law general rule: (1) Objective standard of awareness of (2) high risk of (3)
serious harm. Possible (4) unjustified risk.
Wellansky take: Act or omission. Muddles subjective and objective standards of awareness
(though seems to prefer wanton or reckless)
In Wellansky (Mass. 1944 KS 425), a nightclub owner was charged w/ 462 counts of
involuntary manslaughter. A busboy accidentally started a fire in the packed club. Three
emergency exits were poorly marked and difficult to access. Another was locked, and the final
was blocked w/ furniture. The state prosecuted under and the court affirmed a wanton or reckless
(subjective awareness) disregard of probable harmful consequences. The difference b/n wanton
or reckless conduct and grossly negligent conduct is INTENTIONALITY. The court reasoned
that fire in a public place is an ever present danger, and even if D was so stupid or heedless
reckless conduct can be imputed on him if an ordinary normal man under the same
circumstances would have realized the gravity of the danger. GUILTY OF MANSLAUGHTER
Barnett and Andrews (KS 428-29) hammer home the height of the bar for criminal liability,
requiring negligence plus. In Barnett, the court said the jury should decide (1) whether ordinarily
prudent man in same circumstances would have such indifferent regard for human life (2) in
light of the potential danger involved in the act. In Andrews, the court decided that the amount
and degree of criminal negligence are determining. Jury must decide that the disregard for
others safety amounts to a crime against the state, beyond civil compensation.
The MPC 210.3 requires recklessness for manslaughter defined as conscious disregard of a
substantial and unjustifiable risk (gross deviation of a standard of conduct of law-abiding man).
The MPC establishes a category of negligent homicide (w/o awareness of risk).
Contributory negligence not a defense. In Dickerson (KS 429-30), D drove slightly in excess of
speed limit and struck a car stopped in his lane w/ headlights off. Guilty of MANSLAUGHTER
even though the parked driver was grossly negligent.
Justification. In Parrish v. State (FL dist ct KS 430) a husband chased his wife, both in cars, w/
a bayonet. In escaping she hit another car and died of injuries. Husband convicted of 2nd deg,
depraved heart murder. But if the driver of the other car were killed and the wife survived, is she
guilty of manslaughter? Was the risk, though high and threatening serious harm, justified (4).
Application of objective gross negligence test (pre revisions of Wash code to = MPC)
In State v. Williams (Wash 1971 KS 431), the young, American-Indian parents of infant failed
to get aid for ill baby. They claimed they were afraid that the welfare agency would take the child
away as it manifested, in their opinion, signs of abuse. However, the kid had a toothache which
became gangrenous, preventing the child from eating and subsequently contracting pneumonia

15

and dying. The court decided it was grossly negligent that the parents (1) realized the baby was
sick in time to save it but chose not to seek aid (important to proximate cause), (2) knew help
was available (had used it in the past), and (3) had resources to help. Under objective 4-prong
test, guilty of MANSLAUGHTER.
Problem: Whose objective standard? Shades of racism before Indian Child Welfare Act.
Policy conflict = Deterrent effect vs. paranoia. Does punishing people who were unaware of
something deter anything? The costs of forcing them to take extra care-proactive education.
Pillsbury and Hart
Samuel Pillsbury suggests that its a matter of perceptions and priorities-selective awareness.
Lack of awareness can be traced to bad perception priorities. Morally culpable indifference
should be punished more severely than if justified. What are the reasons for lack of awareness?
H.L.A. Hart argues that standard must take into account individual characteristics (adjusted to
the capacities of the accused); o/w you will convict some individuals for negligence even though
they could not have helped their failure to comply. The court in Everheart (NC 1977KS 438)
followed this idea in reversing conviction of a young girl w/ IQ of 72 who gave birth to baby in
her own room, thought child was dead, wrapped it in blankets, smothering it to death.
Religious convictions not to be considered (rejecting subjective): In Walker (KS 439), a devout
member of the Church of Christ Scientist. She tries to pray her daughter back to health. Daughter
dies of meningitis. Guilty of MANSLAUGHTER given objective standard of gross negligence.
E. FELONY MURDER
No mens rea required on the killing. Prosecutors get it for free. HARSH! (Hypo: defrauded
investor commits suicide-should fraudulent investment advisor be guilty of murder?)
Doctrine
Limits

Serne
Stamp
King
Phillips
Stewart
Smith
Canola

Act known to be dangerous to life and likely to cause death (narrower; common sense)
Take Vs as they come! Direct causal result of felonious act (broader; foreseeability not required)
Felonious act must be proximate cause of death.
Felony must be inherently dangerous in the abstract.
Felony must be inherently dangerous in the concrete (subjective-facts)
Merger. (1) Ireland: Was harm/killing integral and necessary to felony?
(2) Was there an independent purpose?
Agency theory. Self or acting in concert w/ and in furtherance of the felony.
Proximate cause theory. Reasonable or foreseeable result (broader)

Doctrine
Felonious act must be known to be dangerous to life (NARROWER; common sense)
In Serne (KS 448), D was in bad financial straits. Took out insurance policies on house, furniture
and children. House burns down in the following weeks, sons die. Some evidence that D and
friend may have started the fire-were seen in a shop below the residence before fire. The court is
reluctant to convict one of murder for intending another act altogether. Uses words malice
aforethought as required. Defines standard not as any felony is a murder but any act known to
be dangerous to human life and likely to cause death. Had D set fire to house then they would
be guilty of murder (arson to home qualifies). But D found NOT GUILTY b/c arson not proven.
Direct causal result (BROADER; foreseeability not required) Take Victims As They Come

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In Stamp (CA app 1969 KS 450), Ds burglarized business premises of Honeyman at gunpoint.
Ds required V to lie on floor. V, obese 60-yr old, suffered chest pains and died of heart attack.
Foreseeability not required. Causation enough. GUILTY under FELONY-MURDER.
Purpose/Policy
(1) Deter killings during course of felony; (2) deter felonies; (3) retribution
Criticism: Prosecuting for murder for killing by pure misadventure adds nothing to the value
of human life. (Macaulay KS 452)
Limit 1
Both but for and proximate cause/foreseeable must still be proven.
In King (VA 1988), 2 drug smugglers crash a light plane into a mountain top. 1 dies. Since flying
not a felony, the other is NOT GUILTY since not foreseeable that cargo increased chance of
killing in this manner.
Unlawful-act doctrine (misdemeanor manslaughter). In Williams (KS 456) D was charged w/
manslaughter for driving under expired license. PA app ct reversed-expired license NOT causally
connected to accident. Doesnt not where misdemeanor is designed to protect human
SAFETY . . . in Powell (NC 1993 KS 456) Ds Rottweiler dogs escaped from fenced yard,
killing jogger. GUILTY of INVOLUNTARY MANSLAUGHTER for violating local ordinance
(misdemeanor) requiring dogs to be constrained.
Abolition (statutory interpretation): England and Michigan. In Aaron (KS 458), the Mich Sup
Ct said intent to commit felony no equal to intent to commit murder. Malice must be decided by
jury. Statute merely elevates subjective murders during felony to first degree. CA doesnt go so
far . . . in Dillon, the court said the legislature showed intent to codify felony-murder.
Limit 2
Inherently Dangerous in the Abstract?
Abstract. (1) In People v. Phillips (CA Sup 1966 KS 459), V develops cancer in one eye. Med
experts advised parents to remove the eye to save childs life. D convinces parents he can cure
w/o surgery, for a mere $700. Child dies in 6 months. D convicted of Grand Theft. Court finds D
NOT GUILTY of MURDER b/c the felony of Grand Theft is not inherently dangerous in the
abstract. What about under malice aforethought? Requires awareness that conduct would likely
result in death (subjective mens rea). Not here. D believed his treatment would be effective.
(2) In Satchell (1972), D was an ex-felon who shot and killed V during a street fight w/ a sawedoff shotgun in his possession. Felony for such people to carry such weapons. CA Sup Ct finds
him NOT GUILTY b/c possession of a concealable weapon not inherently dangerous in abstract
(3) In Henderson (CA Sup 1977), D held victim hostage by gunpoint. D and V struggle; gun
fires, killing bystander. Again, ct says in the abstract not dangerous and the legislature didnt
distinguish b/n violent and non-violent false imprisonment. Splitting hairs?
Limit 3
Factual approach to inherent danger (subjective)
Concrete. Stewart (RI 1995 KS 464). On crack binge, D neglects infant for 3 days. Infant dies
of dehydration. Felony=wrongfully permitting child to be habitual sufferer. Ct says jury should
decide if felonious act was inherently dangerous based on circumstances (subjective). GUILTY!

17

Hypo: Prison escape may be dangerous to life if committed in a dangerous manner.

Limit 4
Merger: Was killing integral part of the felony?
In Smith (1984) the CA Sup Ct. established a requirement of independent purpose (established
in Burton) for felony murder to apply. D beat her child cruelly. Child suffers respiratory arrest
and dies 1 hr later. In Ireland, ct established that F-M does NOT apply if felony was necessary
ingredient of the homicide/felony would be non-felonious but for the intent to assault. NOT
GUILTY under F-M.
Policy: Possible deterrent only if felony was independent of intent to kill.
Paradox:

Most dangerous felonies -> F-M NA

Least dangerous felonies -> F-M NA
In between -> F-M may apply

Unraveling of Merger Doctrine in CA. In Hansen, D gave V money to buy drugs. V stiffs him. D
drives by Vs apartment building. Shoots randomly, killing 13-yr old girl. CA Sup Ct. convicts of
MURDER under inherently dangerous felony (Phillips) of discharge of a firearm. Why not
merger? Would preclude the most dangerous felonies.
CRITICISM: Neither Ireland nor Burton tests serves purpose of F-Mno deterrent effect.
Limit 5
Agency vs. Proximate Cause Theories
In Canola (NJ 1977 KS 471), D robbed jewelry store w/ 3 confederates. Owner resists; trades
fire w/ one confederate. Confederate and owner die. Issue: Should D be guilty under F-M for
killing of co-felon? NJ Sup Ct says NO, NOT GUILTY. Applies agency theory, reasoning that
criminal liability must = degree of moral culpability. Proportionality has evolved.
(1) Agency: guilty under F-M if killing is actually or constructively his or someone
acting in concert with him in furtherance of a common object
(2) Proximate cause (broader): killing is reasonable and foreseeable result. Implication
no intent necessary.
Hypo 1: Co-felon kills owner(i) under agency, D guilty b/c common purpose; (ii) under
proximate cause, D guilty b/c gunfight reasonably foreseeability consequence of armed robb.
Hypo 2: Non-felon kills non-felon(i) under agency, D not guilty b/c not in concert or in
furtherance; (ii) under proximate cause, D guilty b/c gunfight foreseeable.
MPC 210.2(1)(b) participate in a close list of felonies, killing w/ mens rea (R or N) AND
felony bumps killing up into extreme indifference for value of human life (MURDER)
F. DEATH SENTENCE
FurmanGreggMcClesky institutional racism/freakish and wanton problems remain
Arguments against
(1) Error: no going back and about 100 people have been released from death row since Furman
(2) Deterrence unproven: statistics are inconclusive, but anecdotal evidence still convinces some
(on the other hand, the snipers were apparently undeterred by VAs death penalty)

18

(3) Low quality of representation: Brights study showed lawyers drunk, sleeping, ignorant of the
law [Due Process]
(4) Legitimacy: difference b/n what State has the right to do and what moral desserts might b
Doctrine-Stop Inconsistent Application
In Furman (US Sup Ct 1972), the US Sup Ct condemned the ARBITRARINESS and
CAPRICIOUSNESS of death penalty sentences. Ct STOPS death penalty (DP), but is split 5-4.
Only Brennan and Marshall (2) say DP violates 8th Am-cruel and unusual punishment; (2)
Stewart and White concur b/c DP is wantonly and freakishly imposed [INCONSISTENT].
Dissent argument based on (i) history of DP in America, (ii) public opinion in US shows
approval, (iii) courts shouldnt step on legislative turf. Two ways to interpret:
(1) Legislators can make capital punishment mandatory for certain crimes.
(2) Court can establish guidelines to decide who gets DP (consistency problem remains).
Reactions: Statutory Mandatory DP vs. Guided Discretion
State legislation-35 states have laws that capital punishment is appropriate for certain crimes
1976 cases-the case for Guided Discretion
Gregg v. Georgia (KS 495). Bifurcate trial b/n liability and sentencing. D charged w/ 2
counts of armed robbery and 2 counts of murder. 7-2: DP APPLIES. Standard of decency do
indeed evolve, but courts must bow to legislative intent. Purpose: retribution; cleansing
societys moral outrage still valuable. Jury must have guidance during sentencing phase. MPC
& GA code include lists of aggravating conditions to push crime over the edge. Split the trial:
(a) Determine guilt, absent sentencing
(b) Determine sentence; jury must find >= 1 aggravating circ. & look to mitigating factors
Does it satisfy Furman? Jurys power to find mitigating circ. still DISCRETIONARY.
Woodson v. NC. Mandatory DP violates 8th Amendment b/c (i) no room for standards of
decency to evolve, (ii) no standards to guide jury (can avoid DP by convicting of lesser crime),
(iii) mandatory DP leaves no room for INDIVIDUAL DIGNITY (insufficiently subjective).
In Jurek v. Texas, the Court split b/n Gregg and Woodson, allowing DP for 5 cases of
intentional homicide. But jury must find 3 things: (1) deliberate action w/ reasonable
expectation of causing death, (2) if D was likely a continuing threat to society, (3) whether Ds
response was unreasonable given provocation, if applicable to case. Statutory scheme w/
discretion.
Too far? . . . In Lockett v. Ohio (1978 KS 501), the Court struck down Ohio statute which
narrowed the list of mitigating circumstances a jury could consider when pondering the DP.
Burger says NO RESTRICTION must be placed on evidence which can be introduced to aid
Ds defense (did he turn his homework in on time in grade school?). Criticism: unfair to prosec.
Taken together Gregg & Lockett create BROAD, subjective possibility for Individual
Fairness to intervene in DP sentencing.
And in Tison, where 2 brothers helped their father escape from prison and papa subsequently
slaughtered a family w/ the guns supplied by his sons, the Court adopted a MPC approach. B/c
actions reflected extreme indifference to the value of human life, GUILTY of MURDER.

19

A stop sign? In Callins v. Collins (1994), in his dissent Justice Blackmun argued that even the
Lockett solution was unpalatable. Constitution demands rationality and consistency. You cant
have objective rule AND individual discretion. DP under any scheme seems unconstitutional.
Reactions-Systematic Racism, with Proof
In McClesky v. Kemp (1987 KS 506), black D kills white policeman. D brings in Baldus study
which suggests racially discriminatory application of DP in GA. Ds who kill white Vs are 4.3
times as likely to get DP as Ds killing blacks. This is the evidence of capriciousness that the
Court called for in Gregg. Court rejects stats, and convicts D of MURDER. (1) D failed to prove
state discriminated against him individually (N.B. discriminatory intent hard to prove). (2) No
evidence that GA maintained DP b/c of racially discriminatory effect. (3) Discretion is important
to justice system. Prosecutors must be allowed to deal; jurors can convict of lesser offense. And
procedural safeguards exist (e.g., jury instructions) to prevent this. (4) Could open Pandoras Box
of similar challenges. (5) Legislators are better equipped to evaluate stats about local stuff.
Dissent, Brennan: Stats show racial bias. This is the very risk of arbitrariness Furman addressed.
Dissent, Blackmun: Given evidence state has burden to show absence of discrimination. Risk of
racial prejudice influencing DP too HIGH given possibility of minimizing risk.
Dissent, Stevens: Baldus stats suggests absence of discrimination only for extremely serious
crimes. DP can apply only to these. Narrow category!
Stephenson lecture: Court says some risk of racism/bias is constitutionally acceptable. We can
do better than this.
V. RAPE
Problems: Denial; underreporting in stats. Difficulty of defining sufficient resistance, sufficient
force. Male aggression prevelant; how aberrant is behavior? Male perspective dominates
(cultural defense). Is harm physical assault or unwanted sexual intrusion?
Policy concerns: protection vs. freedom of sexual activity
Actus Reus
In MD, three elements of rape: (1) intercourse, (2) force/threat of force, (3) w/o consent and
against the will of V.
In Rusk (MD 1981 KS 323), app ct upheld conviction of 2ND DEGREE RAPE. D picked up V
at a bar. V gives him a ride home, in an unfamiliar neighborhood in the city. D took her car keys,
pulled her onto the bed, had a look in his eyes, and started undressing her. She cried. He choked
her lightly. She asked if he would not kill her and let her go if she did what he wanted.
Intercourse. Ct applies RULE under Hazel: To establish lack of consent requires (1) proof of
resisistance overcome or (2) proof that V failed to resist b/c of fear of death or serious bodily
harm. Fear must be reasonable, under circumstances (objective and subjective).
Dissent: Must prove that Ds conduct was intended to cause Vs fear. V must resist until D
manifests intent to use physical force.
Resistance
Previous standard: utmost resistance
Substantial
Current standard: reasonable resistance (at least probative)
Objectively reasonable
Previous policy: proof of resistance helps avoid conviction based only on suspect testimony

Fear

Criticism of Resistance

20

Elizabeth Stanko (KS 328) argues that the PERSPECTIVE is questionable. We evaluate a female
experience of male violence through what males (socially aggressive) consider typical or
aberrant. Where is females view of what is threatening?
In Barnes (CA Sup 1986), the court says resistance requirement is questionable: some freeze,
even smile when terrified; resisting could increase risk of serious harm, and the law doesnt
require a person to risk injury by defending ones property.
Reply. Michelle Anderson points to 1979 DoJ study indicating 80 percent of women who resisted
avoided rape. Plus resistance associated w/ less self-blame, seeking treatment, and shorter
recovery times. Psychological benefits.
Ridiculous? In Warren (Ill 1983), 63 D lifted 52 V off her bike and took her to the woods.
B/c she didnt scream, fight back or try to escape, D NOT GUILTY of RAPE. Ct requires an
objective communication of lack of consent (clear resistance).
Timing and Forcible Compulsion
Force must be immediate. In Alston (NC 1984 KS 332), parties dated for 6 months. Abusive
relationship. V leaves. They encounter at a party. D leads her to a house, strips and penetrates
her, claiming right to have sex w/ her again. Ct finds D NOT GUILTY.
Criticism: Estrich argues that beatings, physical and emotional, preceded particular event.
Previous force led to present general fear.
Must forcible compulsion be physical?
In Thompson & Mlinarich, people in authority took advantage of young girls. Since threat was
not physical or violent, courts stuck to the plain meaning of statutes-NOT GUILTY.
Replies. In Rhodes (PA 1986 KS 336), the court BROADENED forcible compulsion to include
physical, intellectual, moral, emotional or psychological force, express or implied.
The MPC 213.1(2) provides conviction for gross sexual imposition . . . by ANY threat that
would prevent resistance by a WOMAN of ordinary resolution.
Mens Rea-Mistake of Fact of Consent
Essence of rape is lack of consent. No mean no? Strict liability or reasonable mistake of fact?
Policy: conviction in ambiguous circ (strict liability) vs. encouraging mistakes of consent
In Sherry (Mass Sup ct 1982 KS 351), 3 doctors at a party carried V out and drove her to
Rockport. Verbally but not physically protested. V and 2 men smoke marijuana. Men undressed
her. She told them to STOP. Each has intercourse w/ her. She claimed too numb to fight. Ct
applies strict liability (GUILTY), but entertains possibility of mistake of fact defense. Rule, in
dicta: mistake must be in good faith and reasonable (objective).
The court in Fischer (PA 1998) ran into a similar wall. College students have sexual encounter
early in the day. Later in the day they start to repeat, but she doesnt want it anymore. D
straddled her, held her hands above her head, then blocked her way when she said no. Med
personnel later treated V. Hurdles: (1) Ct says Williams case (Temple University rape case)
prevents jury instructions of mistake of fact defense on consent; and (2) procedural-since on
appeal former counsel must be found to have made a mistake. Mistake defense not previously
law. Strict liability applied: GUILTY. Rule, in dicta: mistake of fact defense for new rape cases.

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Notes: Most recent American cases permit honest and reasonable (objective) mistake defense.
But not in the Tyson case (1993), where court said account leaves no gray area for
misunderstanding. All or nothing in conflicting testimony. Jury decides. GUILTY.
Recall: Point of negligent standard is to increase awareness/deter. Encourage communication!
VI. JUSTIFICATION
(1) Accept responsibility but (2) deny that act was bad (actus reus given)
Doctrine
U.S. v. Peterson (US App DC 1973 KS 750-1) sets 6 part STANDARD for necessity killings
(1) Threat for self
(2) Immediate
(3) Unlawful
(4) Threat of death or serious bodily harm
(5) Belief must be reasonable (objective)
(6) Belief must be honest (subjective)
(7) Force taken must be necessary to stop aggressor (proportionality)
NY common law: objective and subjective components reasonable man in Ds situation
COMPLETE DEFENSE OR NOTHING!
In People v. Goetz (NY App 1986 KS 751), D carried unlicensed .38 caliber pistol w/ him on
the subway traveling in lower Manhattan. 4 youths surround him, and one tells him, twice to give
him $5. D knew that none of the youths had a gun (question of threat of deadly force). Before
the second request D decided to fire from left to right. Upon second request D shot three of the
youths, missed the fourth. He checked the first two, saw the fourth sitting (question of
immediacy), then fired another shot, severing his spinal cord. He had been mugged three years
prior and used the gun twice to scare off attackers. The court argues that the Appellate Division
wrongly interpreted Penal Law S35.15 reasonably believes to be wholly subjective
(reasonable to him). Not right says the court. The legislature intended to retain objective
element. Reversed. NOT GUILTY/ACQUITTED.
Policy: If subjective standard stands alone, it would allow citizens to set their own standards on
permissable use of force.
Analogy to Marrero: NY changed some the MPC language and it matters.
MPC approach (S3.04(2)(b)): flexible standard (need only show that [D] believed) mistake
must be enough to negate required mens rea of the crime; if recklessly or negligently founded,
then D may be convicted of manslaughter or negligent homicide, respectively, but f(jurisd)
What if belief is honest, but unreasonable?
Common Law Majority
Murder

Common Law Minority

Mitigates to lesser homicide

MPC
F(mens rea required in jurisds statute)

The Critics
Bergers reaction: Still widened the circumstances to justify use of deadly force. Jurors likely
sympathized w/ Goetzs position, disbelieving effectiveness of police and craving vigilante
justice. Problems: (1) immediate danger had passed; (2) Racial assumptions higher rates of
crime for blacks; more likely to commit crimes? (3) blacks being mistaken for criminals; (4)
danger of vigilante justice
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Carters reaction: uncertainty for racial minortiesvictims of mistrust (now loathe to ask for
directions or change for a dollar)
Armours reaction: Blame is reserved for the statistically deviant. Distinction b/n TYPICAL
racist belief and REASONABLE belief. Its not racially driven but rather driven by the limited
opportunities and desperate circumstances of many African-Americans. Problem: Race-based
evidence is arguably more prejudicial than probative; costs of not waiting = injury of death,
exclusion of blacks) another example of the PERVASIVE CULTURAL DEFENSE
Glanville Williams argued that negligence gives effect to laws of prudence commonly observed
but not incorporated in the code of law. But there can be no rules of prudence in cases of
mistaken homicide. Either D can draw reasonable inferences or he cant.
SCIENCE! Restak argues that reasonable person argument is bunk, illogical and outdated.
Emotions overwhelm and cannot be shut on and off like a light switch, deep and powerful
emotional currents of fear, self-preservation or territoriality . . . [can] overpower the cogitations
of reason.
Note: Most jury instructions emphasize that BELIEFS and FEARS must be reasonable, not
ACTIONS.
Past Abuse
Battered-Woman Syndrome Defense?
Should it help answer REASONABLENESS?
In State v. Kelly (NJ 1984 KS 763) D had been subject to 7 years of periodic and frequent
beatings. After earlier receiving a public beating, she sees her husband running toward her with
his hands raised. She grabs a pair of scissors from her pocketbook and stabs him, killing him.
Dr. Lenore Walker suggests that battered-womans syndrome could explain wifes fear of serious
harm and, at the same time, why she wouldnt leave him. Battered woman = victim of (1)
forceful physical or psychological behavior (2) by a man (3) to coerce her to do something he
wants and she doesnt (must go through battering cycle >=2). Battering cycle: (1) tensionbuilding: minor beatings and verbal abuse, w/ submissive woman; (2) acute battering: serious
violence w/ woman sometimes losing her cool; (3) contrition and loving behavior from man.
Women often unwilling to reach out b/c of shame or there is nowhere to go; plus theres always
some hope b/c of phase 3 that husband will reform.
Court applies self-defense rule: actor must reasonably believe that lethal force is necessary to
protect himself against death or serious bodily harm. Reasonable belief=f(Ds credibility). A.
Expert testimony had probative value could show honest belief in imminent danger of
death (subjective portion). B. Could also explain inability to leave. REMANDED to help jury
better determine honesty of Ds belief. REVERSED CONVICTION.
Statistics: According to Justice Department studies women remain 7 times as likely as men to be
victim or serious domestic assault and 3 times as likely to be killed by domestic partner.
Mandatory arrests and no-drop policies for prosecutors have created as much harm as good.
Proposed: more social and economic support for victims. Questions have been raised about
whether Walkers data are inconsistent with learned helplessness stopping a woman from leaving
a relationship. One study concludes that those women who kill do not manifest it!

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Where do the states fall?

CA (Humphrey) has not gone so far to disperse w/ objective standard. Ultimately, the JURY
should decide reasonableness, but its not a reasonable battered woman standard. D and
experts can help overcome potential stereotypes or lack of familiarity of jurors. Elizabeth
Schneider (KS 772) states that the reasonableness of a battered womans fear are NOT something
which the jury knows better than anyone else.
ND (Leidholm) and MO (Edwards) are nearly fully subjective: juries should assume the
physical and psychological properties peculiar to the accused (KS 771). View evidence in the
light of how a reasonable person suffering from battered womans syndrome would react.
The Academics
Prof. Morse suggests that these syndromes affect Ds cognitive and volitional functioning
suggests impaired rationality (EXCUSE not JUSTIFICATION)
Both Schneider and Estrich suggest (1) battered womans personal experiences make her the best
predictor of likely harm in a threatened attack (e.g., degree of seriousness). Estrich warns that
proposing the battered womans defense, we could lowering reasonable threshold for convictions
in the home relative to conviction outside the home (INEQUALITY).
Sexist? Battered womans syndrome presumes female incapacity for rational self-control (775)
Note: Admissibility is overwhelmingly accepted by courts and legislatures!
Imminent Danger Requirment
But in State v. Norman (NC Sup 1989 KS 776), D was beaten periodically and severely over
25-year marriage, husband often threatened to maim and kill her, and he forced her into
prostitution. Immediately prior to killing, she was dragged from welfare office, beaten and
burned w/ cigarettes. She shot him while he was sleeping. Police had come before and she
consulted people at a local mental health center, but nothing was done.
App ct concluded that act was justified as an act of self-defense. Supreme ct reverses applying a
person of ordinary firmness perception element in standard of belief that it was necessary to
kill to save herself from imminent death or serious bodily harm (for perfect defense) and if D is
the initial aggressor if decedent escalates the conflict to above (imperfect defense). Reasoning:
(1) threat not imminent or of death, for husband was asleep; (2) D had ample time and
opportunity of preventing further abuse through alternative means. Both Ds and experts
testimonies suggest that fears were indefinite over time, not imminent. Policy: BW defense
would make homicide lawful for subjective predictions of future assaults. Guilty VOL MANS.
Dissent: No letup of fear, no moment during which D escaped impending serious harm no
escape for the battered wife. Therefore the next attack was ALWAYS imminent. And last 3 days
of beatings were particularly severe -> threat of serious bodily harm or death was real.
Responses
McCord and Lyons argue that the Norman decision falls short of what is required MORALLY.
Argument for allowing jury to apply its reasonableness standard: (1) Husbands (Hs) physical
advantage; (2) Wife (Ws) distress b/c of Hs actions; (3) Ws mental state clouded by 20 yrs of
abuse; (4) living with W, H had constant opportunity to abuse; (5) H attacked at his whim; (6) no
sign that H was going to stop abuse; (7) W couldnt support herself independently outside the

24

community; (8) H could find her anywhere in the community; (9) no govt intervention despite
notice; (10) Hs actions prevented W from following up w/ govt authorities.
Non-confrontational self-defense claims more often than not fail. Robinson v. State (SC 1992
KS 781) provides exception when killing sleeping V was valid b/c torture appear[ed]
interminable and escape impossible. Contract killers and hiring wives havent prevailed on any
claims to date. However, Schulhofer argues that the utter passivity of hiring someone to kill
might reinforce diagnosis of Battered Womans Syndrome. And someone coming to the aid of
another and reasonably believes that lethal force is necessary can also claim the defense.
Other common law contexts
In Schroeder, a prison inmate stabbed his cellmate. Cellmate had threatened D that he would
collect some of his debt at night (rape). GUILTY of assault w/ intent to inflict great bodily
harm. No instruction on self-defense b/c words alone were insufficient. In Ha v. State (AL 1995),
D was beaten severely by V, a member of a violent criminal clan. V stated he would kill D.
Clan had a reputation for carrying out threats. D caught V unaware and shot him w/ rifle.
GUILTY of MURDER b/c inevitable harm does not equal imminent harm.
And in Jahnke, after 14-yrs of abuse son waited w/ shotgun for 1 hour. Father returns. Son shoots
and kills him. CONVICTED of MURDER: threat not immediate.
Policy: Dont give individuals the right to decide when killing is necessary.
But MPC relaxes requirement, demanding that defensive force be immediately necessary.
Applied in State v. Janes (Wash 1993 KS 783) -- a threat or pattern of behavior can do.
NECESSITY - Choice of Evils
Ds good news In Unger (Ill Sup 1977 KS 809), D escaped from prison, w/o notifying
police. He had been sexually molested by 3 inmates and testified against them. Received death
threats anonymous death threats. Trial judge refused to give instruction on defense: reasons . . .
are immaterial. Supreme Ct affirms reversal NOT GUILTY: Necessity defense applies.
Balancing Rule for Necessity: (1) D w/o blame in developing circumstances; (2) D reasonably
believes such action was necessary to avoid injury > injury which could result from his conduct.
Policy: Utilitarian and pragmatic (leg. cant foresee all).
Lovercamp Rule for Escape (more stringent): (1) threat must be immediate; (2) D has no time to
seek aid from authorities; (3) no violence during escape; (4) D reports to authorities immediately
after securing safety. Ct argues not all these elements are necessary.
Dissent argues Policy: Encourages escape, increasing risk of harm to authorities & public.
Ds bad news . . . USSC adopted Lovercamp.
Non-Violent Necessity Rejected-Policy Grounds
A. In Williams (1971 England), the court rejected the argument of economic necessity for a
homeless family of squatters in London. Necessity would open the door to may excuse,
leaving the public feeling very unsafe. Recourse? Philanthropists, not the courts.
B. In Leno (1993 Mass), the court rejected the argument of medical necessity put forth by a
group distributing hypodermic needles despite Mass law requiring prescription. Group
claims to be fighting spread of AIDS. Ct argues best course against AIDS is still
uncertain, but it should be left to the legislature, not an individual group or the courts.

25

C. And in Hutchins (1991 Mass), the court rejected the argument of medical necessity for
marijuana grower suffering from systemic sclerosis. Applies balancing test, saying
alleviation of Ds maladies < potential harm to public from declaring actions legal.
Dissent argues opposite and that juries wisdom serves as a limit on potential abuse.
MPC vs. NY Penal Law vs. Illinois
The MPC S3.02 looks to (a) balancing test, (b) looks to whether code provides specific
exceptions, (c) legislative purpose. If actor recklessly or negligently caused circumstances
necessity unavailable to offense for which reck or negl is required mens rea.
NY Penal Law S25.05 looks to (a) imminent injury, (b) circ no fault of actor, (c) balancing test.
Differences: (1) Immediacy, (2) MPC encourages actions (e.g., putting out fire) after Ds conduct
causes injury. Similarity: Both perform balancing test based on FACT!
4 Key Questions: (1) Reasonable at the time (Ill) vs. reasonable in fact/retro (MPC, NY);
(2) Imminence (MPC & Ill no position; NY requires); (3) Weight on either side of evil eq. (Ill
& MPC more than; NY clearly outweighs); (4) contributory fault (NY unforgiving; MPC says
defense n.a. if nec mens rea for act < act contributing; Ill nada)
Final note: Elasticity of defense of necessity. Common law crimes abolished but court give
benefit of the doubt to D, allowing defense occasionally even when not in statute. Fight risk.
Self-Defense, Necessity, Duress
Self-Defense
Necessity
Duress

Honest (subjective) and reasonable (objective) belief in immediate,

unlawful threat to person w/ high risk of serious harm
Free will remains to choose between evils (Ill reasonably believed
at time; MPC & NY reasonable in fact/retrospect), BUT its a
choice of BROAD vs NARROW lens in evaluating evil
Must be coerced to perform action/no reasonable choice (do it or
else)

Conduct against provoking actor

Natural cause-conduct not directed
against any provoking actor
Conduct forced by another, but can be
directed in multiple ways

VII. EXCUSE
(1) Deny responsibility but (2) admit act was bad. Result? Free of blame or subject to less blame.
DOCTRINE
Legal excuses include
1. Involuntary-physical compulsion, loss of control of body (reflex, subjective)
2. Deficient but reasonable-power to choose remains, but is constrained (person of
ordinary capacities would make the same choice-reasonable/objective)
a. Cognitive defect-lack of knowledge must be reasonable. Mens rea can be: (1)
essential to crime/prevention (loitering w/ intent), or (2) excuses/deny blame
for harm done (mistake of fact)
b. Volitional defect-lack of will (e.g., duress)
3. Irresponsible-inadequate capacity to make rational judgment (insanity, infancy) subj
DURESS
Common law. In Toscano (NJ Sup 1977 KS 845), D, a chiropractor, filled out a false medical
bill and report for Leonardo, who had called 3 times and threatened D and his wife (vicious
threat about them leaving dark entrance of home). D had gambling debt to Leonardo, but

26

received nothing for false report. Charged of conspiring to obtain money by false pretenses in
violation of NJ 2A:98-1.
Rule: in non-murder, duress exists if D (1) was coerced to engage (2) in unlawful conduct (3) by
threat to person or that of another (4) of unlawful force (5) which ordinarily firm person would
not be able to resist (objective). Conviction REVERSED and remanded under duress instruction.
Other elements?: (a) immediacy, (b) duty to seek assistance from authority.
Note: Most courts reject flexible Toscano and MPC approaches, and require immediacy!
MPC: Difference b/n necessity (S3.02) and duress (S2.09): choice involves a greater evil than
that threatened, but he should be excused b/c of coercion. Psychological incapacity! SOURCE of
peril different. RULE: Person of reasonable firmness in his situation would not have been able
to resist. Objective (75%); subjective (25%)-situational factors like size, age, health, but NOT
temperament.
More objective in Regina v. Cairns, short and timid D committed assault under alleged duress.
Ct. said short stature relevant, but not timidity. In Bowen, ct rejects low IQ excuse, b/c short of
mental impairment or defectiveness. Both CONVICTED.
Than others in Zelenak (VA App KS 851), D has multiple personality disorder and
participates in robbery. Ct. says its relevant to determine if D acted out of subjectively
reasonable fear.
Duress (do it or else) vs. Self-defense (retaliate against source/individual) and Necessity:
Both ask if there was a reasonable fear of imminent great bodily harm.
But, in self-defense D acts against source
While in duress D avoids threat by acting against innocent third party. [> blameworthy]
In necessity choice of evils-action is good b/c it is lesser evil thing to do.
While in duress was not good, but rather reasonable under the circumstances.
MPC-source of peril for necessity defense to be natural event, not command of another
The Missing Elements for Duress: (1) Imminence, (2) inescapability via authority.
1. US v. Fleming (CMR 1957)-D is army officer captured during Korean War. Helped
prepare propaganda and made broadcasts criticizing US objectives. Threatened w/ (1)
walking north in rags for 150-200 miles in the cold, and (2) being sent to caves (high
mortality rate, dank). Ct REJECTS DURESS b/c danger of death was remote, not
imminent. Harsh!
2. US v. Contento-Pachon (9th circ 1984)-D is cab driver in Bogota. Jorge, gang member,
threatens him and his wife-transport 129 balloons of cocaine in stomach to US or else.
Plane stopped in Panama. In neither Bogota nor Panama does D tell authorities. Ct
ACCEPTS DURESS argument, remanding on question of whether escape was reasonable
given (1) Bogota police were paid informants to gangs, (2) threat to wife in Colombia.
3. In Ruzic (Canada 1998), D, 21-yr old woman from Belgrade caught w/ 2 kilos of heroin
strapped to her body. Mirkovic stabbed and burned her arm and threatened Ds mother.
Didnt tell police b/c paramilitary groups controlled Yugoslavia. ACQUITTED.
Policy: law shouldnt demand heroism of which ordinary person is incapable.

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Homicide: imminent, inescapable lethal threat? Most jurisdictions EXCLUDE duress defense,
but MPC and a few states (e.g., OK) allow it. NOTE: Duress is a defense to the underlying
felony.
Nature of Threat: Common law and MPC require threat against person. Why not property?
Contributory Fault: Duress defense available under MPC in homicide (reckless mens rea req.)
even if D runs unreasonable risk of incurring duress. Gang hypos.
Provocation vs. Duress Defenses
Provocation: objective standard, immediate, high risk of serious harm-mitigates
Duress: immediate, inescapable, high risk (but COERCED BY ANOTHER)- objective standard?
-complete defense; involuntary action can be attributed to anothers intent
INSANITY
Doctrine
Established
MNaghten
Irresistable
Impulse Test
MPC-see
Blake (KS
887)

Rule
Two prongs: (1) Defect of reason stemming from the disease of the mind
[cause], and at time of committing act (2a) D didnt know the nature or quality
of the act or (2b) did not know what he was doing was wrong

Policy & Implication

Narrow cognitive only;
deterrent works only if person
has control over actions

Two prongs: (1) Because of mental disease didnt have SUBSTANTIAL

capacity to (2a) appreciated wrongfulness of or (2b) conform/control conduct.
But mental disease doesnt include if only manifested in crim or antisocial acts.

Broader both cognitive and

volitional

Policy: Still about punishing the blameworthy.

Hypo 1: D thinks hes squeezing a lemon when hes actually squeezing someones throat.
MNaghtens cognitive test could work.
Hypo 2: D is a pyromaniac. MNaghtens cog test wont work. But other two probably would.
Defending w/ Insanity (due process concerns)
(1) Competency to stand trial
(2)
(3) Competency to serve time/sentencing
(4) Competency for execution
Reversaldown w/ volitional! (following Hinckleys acquittal)
In Lyons (US App 1984 KS 890), D got addicted to painkillers after taking prescriptions for
pain. Claims drug addiction physiologically and psychologically impaired mental state; cant
conform conduct. Majority: (1) behavioral science cant empirically discern b/n impulse that
was irresistible and impulse not resisted. (2) There appears to be overlap b/n satisfying
volitional and cognitive tests. (3) Testimony about volitional likely confusing for jury. So
volitional test is murky and superfluous. Cognitive remains (narrower)-CONVICTED.
Dissent: Policy-Do not punish those unable to make effective choices (purpose defeated) vs.
protect society from those w/o control. Evaluating insanity should be subjective, and evaluating
expert testimony and its probative value are EVIDENTIARY problems that can be overcome. (1)
Volitional insanity plea not frequently used, even less successfully (0.25% of terminated felony
prosecutions); (2) danger to society controlled b/c acquittee is hospitalized; (3) most insanity
claims include concurring testimony and decided before trial, and at trial most Ds lose.

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Where do the states fall? Cognitive only/MNaghten: CA, TX, IN, 18 others. MPC: 22 states.
Variation: Burden on Prosecutor-Cognitive AND Volitional Sanity Must be Proven
In Green (TN 1982 KS 896), D had 10 yr history of mental problems: heard voices suggesting
that he kill people to become Hitler, had violent outbreaks against students and brother,
hospitalized, refused to bathe, laughed at inappropriate times. Shoots policeman, fled from scene,
hid weapon. Ct says P has the burden and applies variation of MPC: (i) D was not suffering
from mental defect at time of act, (ii) could appreciate wrongfulness AND conform conduct.
Here (1) is satisfied given experts and progressive history of psychosis. (2) Even if D appreciated
wrongfulness (fleeing, hiding weapon), Proscecution failed to show act was inconsistent with
insanity (couldnt control act). ACQUITTED.
Note: Empirical studies suggest jury instruction/standard doesnt matter.
Two prongs remain: (1) mental disease disabled and (2) inability to appreciate act was wrong
Criticism
Stone: who helped draft Am. Psychiatric Assoc. proposal to go to cognitive, says problem lies not
in distinguishing b/n cognitive (empirically sounder) and volitional (elements of both in the
Hinckley case), but b/n organism reactions (chemical causing) and a persons actions (will).
Justice Weintraub: Insanity should bear on sentence, not liability. Debate for standard fruitless.
Psychiatry cannot differentiate b/n who is personally blameworthy and who is not.
Prof. Wechsler: Element of condemnation is served by criminal process. Ds should be morally
condemned (convicted) only for acts that were the product of choice.
Morris: Punishing the sick (insane) is just like punishing the grossly deprived (poor). Neither can
adhere to do what is right. For EQUALITY law should punish both punish, rehabilitate both.

29