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Analysis of Criminal Law

Elements of the offense

o Conduct
o Culpable Mental State
o Results
o Attendant Circumstances
Elemental Defenses?
Excuse or Justification?

Introduction and Legality (167-180)

Punishment must be specified (1) in advance (prospectivity) and (2) by law (legislativity)
Keeler v. Superior Court (CA: prospectivity, legislativity)
SC California holds for D.
o CA Penal Code: murder is the (1) unlawful killing of a human being, (2) with
malice aforethought
human being was intended by legislature to have settled common law
meaning of a person who had been born alive. This is not intended to include
o Court cannot join conclusion. Limited by two obstacles:
Jurisdictional: legislativity
CA Penal Code 6: no act/omission accomplished after the code has
taken effect is criminal or punishable except as prescribed or
authorized by this code or by some of the statutes which it specifies as
continuing in force and as not affected by its provisions or by some
ordinance, municipal, county, or township regulation.
Penal Code allows only legislature to define crimes. No common law
in CA (cannot enlarge statute by inserting, deleting words, or giving
terms used false or unusual meanings)
Constitutional: prospectivity
Guarantee of due process of lawdue process requires fair warning of
an act that is made punishable as a crime. The Art. 1 9 & 10 of the
Constitution bars ex post facto laws. A new ruling could only operate
United States v. Hudson & Goodwin (legislativityimplied powers, common law)
Circuit courts cannot exercise common law jurisdiction in criminal cases?
o Analysis of powers
SCOTUS derives power from Constitution
Other federal courts have no jurisdiction, unless given by the legislature
o US argues implied powers
Court says this would still not give the court jurisdiction over specific acts.
Legislative authority must (1) make an act a crime (2) affix punishment and
(3) declare court has jurisdiction over the offense.
Court does acknowledge implied powers, but common law jurisdiction in
criminal cases is not one of them.

Rogers v. Tennessee (TN, prospectivity: abolition of rule)

O Connor (opinion of the court); SCOTUS affirms SC Tennessees opinion.
o Abolition of common law year and day rule does not violate due process of the
Fourteenth Amendment?
o Rule
Common lawthe year and a day rule provided that no defendant would be
convicted of a murder unless his victim died by Ds act within a year and a
day of the act.
SC Tennessee abolishes this rule.
SCOTUS: a judicial alteration of a common law doctrine violates fair
warning and must not be given retroactive effect only where it is
unexpected and indefensible by reference to the law which had been
expressed prior to the conduct of the issue.
Here, its not unexpected or indefensible to abolish the rule
o The rule is archaic and there are no good reasons to retain it.
o The rule was not part of the criminal law.
o Precedent
The common law rule was recognized in Percer v. State, but SC TN opined
that the original justification for rule no longer existed.
Scope of Due Process Clause Protection (see Calder v. Bull)
Every law that makes an action done before the passing of the law
which was innocent when done criminal and punishes such action.
Every law that aggravates a crime or makes it greater than it was
when committed
Every law that changes the punishment and inflicts greater
Every law that alters the legal rules of evidence, and requires less or
different testimony than the law previously required to convict the
Precedent (Bouie v. City of Columbia)
South Carolina courts retroactive application of its construction of a
criminal trespass statute (to require no notice prohibiting entry of
black patrons) violated due process.
Deprivation of the right of fair warning can result from:
o Vague statutory language
o Unforeseeable and retroactive expansion of statutory language

Specificity: CB 18190.

Specificity: The law must not be vague. Specificity means the law (1) must provide fair notice
(2) cannot have potential to be arbitrarily or discriminatorily enforced.
Chicago v. Morales (IL, specificity (law cannot be vague): (1) fair notice & (2) not
The U.S. Supreme Court granted certiorari to review. The question: whether the states
supreme court correctly held the ordinance violated the Due Process Clause of the
Fourteenth Amendment?
o Vagueness may invalidate a criminal law for two reasons: (1) [fair notice] Fails to
provide fair notice (2) [arbitrariness] Authorizes/encourages arbitrary and
discriminatory enforcement

Giaccio v. Pennsylvania: a law fails to meet requirements of Due Process if it

is so vague and standardless that it leaves the public uncertain as to the
conduct it prohibits.
SC IL takes issue with the statutory definition of loiterto remain in any one
place with no apparent purpose. What is apparent purpose? Talking to
another person? Checking ones watch? Its vague.
City argues notice is not an issue because loiterers are not subject to
sanction until after they have failed to comply with officers order to


Criminal punishment requires that (1) the individual have committed an act and (2) that the
actus reus (criminal or bad act) is a necessary element. The act requirement has two distinct
elements: (1) the conditioning of just punishment on the proscription, charging, and proof of an
actus reus, and (2) the particular actus reus the prosecution must charge and prove beyond a
reasonable doubt in order to establish liability for a particular crime.

The requirement of an act . . . but see omissions: CB 115128

The need for an actus reus

Proctor v. State (actus reus)
Oklahoma Statute
o Unlawful for person to rent or keep a place with the intention/purpose of
manufacturing, selling, bartering, giving away, furnishing alcohol.
Question: Is there an act?
Court holds keeping a place + intent to violate law does not constitute overt act.
Ruleelements of a crime: the requirement of actus reus
o Comm. Book 4
foro conscientiaefixed design/will to do unlawful act
Vicious will without vicious act is not civil crime
Unwarrantable act without a vicious will is not crime at all
o Bishop
To entitle a complaint some act must have followed from the unlawful
o Sherwood
Cant determine intent/purpose without overt act.
Jones v. United States (omissions)
Holding: Court must instruct jury it must find appellant had a legal duty of care before
finding breach
o People v. Beardsley: Duty to Act to Preserve Life of Another: When failure to
act may constitute breach of a legal duty: (1) Statute imposes a duty (2)
Certain status relationship (3) Contractual duty (4) Voluntary assumption
of duty
Model Penal Code 2.01(3): Omissions
Liability for the commission of an offense may not be based on an omission unaccompanied by
action unless
a. Omission is expressly made sufficient by the law defining the offense
b. The duty to perform the omitted act is otherwise imposed by law

Wisconsin: (Affirmative) Duty to Aid Victim or Report Crime

(1)(a) whoever violates sub. 2(a) is guilty of Class C misdemeanor
(2)(a) person who knows that crime is being committed and that victim is exposed to bodily
harm must summon law enforcement officers/other assistance/must provide assistance to
(2)(d) person need not comply if: (1) compliance would place him in danger OR (2) compliance
would interfere with duties person owes to others OR (3) assistance is being
summoned/provided by others

The requirement of voluntariness and prohibition on status crimes: CB 148

Voluntariness: the actus reus must be one of the defendants own volition. If they are forced into
acting (i.e. police dragging them in public place) or if they cannot control their actions (i.e.
status, disability) there is not voluntariness.
People v. Newton (voluntariness not found)
NY Statute: possession of firearm + loaded with ammunition OR possession of firearm +
possession of ammunition = guilty of Class D felony
SC, Appellate Division NY
o D did not subject himself to criminal liability by virtue of a voluntary act, because
the plane was not scheduled to terminate in or pass through territorial jurisdiction
of U.S.
o Writ of habeas corpus should be sustained; D discharged from custody.
Martin v. State (voluntariness not found)
COA Alabama
o Statute: person + intoxicated + appears in public place + in front of people +
manifests drunken condition = fined
o Court says voluntary appearance is presupposed. Since D was involuntarily and
forcibly carried to that place by an arresting officer, its a violation of the principle
and conviction was erroneous.
o Reverse for D.
People v. Grant (voluntariness not found)
Appeals Court of Illinois
o Court notes the criminal codes voluntary rule: a material element of every
offense is a voluntary act.
o Illinois provides for affirmative defense of insanity AND requires every offense be
result of voluntary act.
o Reversal and remand.
Jury instructions defective
Lacked instruction on defense of involuntary conduct
o The question of fact left to the jury is whether D may have been acting in a state of
automatism when he attacked Officer V.
Prohibition of status crimes
Robinson v. California (prohibition of status crimes)
Question: Is a statute that makes it a criminal offense for a person to be addicted to
narcotics constitutional?
SC CA: yes.
o Justice Stewart

Statute does not punish use, purchase, sale, or possession. It makes status of
narcotic addiction a criminal offense.
Court draws analogy with mental illness, venereal disease, lepers would be
cruel and unusual punishment in violation of Eighth & Fourteenth
Amendments; unconstitutional.
This statute is in the same category. Narcotic addiction is an illness.
Criminalizing illness is a violation of the Fourteenth Amendment. Ad
absurdumcommon cold. Reversed.
Justice Harlan (concur)
This statute would allow jury to find D guilty on no more proof than he was
in CA while he was addicted to narcotics.
This is criminal punishment for the bare desire to commit a criminal act.
Justice White (dissent)
Not an illness. Its a conviction for regular, repeated, or habitual use of
narcotics before arrest in violation of CA law. (if we proved he was an addict,
we could prove he used it, which IS against the law)
Why distinguish between use and addiction? If 14 th Amendment bars
addiction, then why should it bar use any less?

Johnson v. State (prohibition of status crimes)

Facts: Johnson (defendant), who gave birth to a son in 1987 and a daughter in 1989,
admitted that she had used cocaine during both pregnancies and specifically stated that
she had used cocaine on the day before her sons birth and on the morning of her
daughters birth. Florida (plaintiff) charged Johnson with two counts under section
D appeals two convictions for delivering a controlled substance to her two minor
States theory: delivery occurred when the cocaine passed through the umbilical cord
to the child during the sixty to ninety seconds between delivery and the cutting of the
Question: whether statute was intended to apply to delivery of cocaine derivatives to
newborn during short interval after birth but before severance of umbilical cord?
SC Florida adopts Justice Sharps dissenting opinion as its own holding.
o Insufficient medical testimony to support trial courts finding that delivery occurred
here during the birthing process.
o No evidence Johnson timed her dosage of cocaine to transmit small amount after
childs birth.
o Legislative history
Legislature debated the issue but rejected criminal penalties against
mothers for delivering drug-affected children
o Policy
Florida has a policy of keeping families intact
o Study
Though studies show effects of cocaine use by mother can be severe,
problem should not be addressed piecemeal by prosecuting users; this is
least effective because it would dissuade them from seeking prenatal care to
avoid prosecution.
o Held: Statute does not encompass delivery of illegal drug to newborn baby.
When is an action the act Introduction to statutory construction, and the
curious case of possession: Muscarello v. United States handout, CB 12840 & MPC

PossessionModel Penal Code says that possession is act if possessor knowingly procured or
received the thing possessed or was aware of his control for a sufficient period to have been
able to terminate his possession.
Muscarello v. United States (definition of carry, rule of lenity)
Facts: Congress enacted a federal law criminalizing the conduct of one who uses or
carries a firearm while trafficking drugs. This case consolidates two cases involving the
same question. Petitioner 1 Muscarello (defendant) was charged with carrying a firearm
in his vehicle while involved in a drug trafficking crime (a handgun was found in his
trucks glove compartment). Petitioner 2 Cleveland and Gray-Santana placed several
guns in a bag, put the bag in the trunk of a car, and travelled.
Trial court granted motion to quash Ds conviction.
5 COA reversed and remanded.
D convicted on remand.
1 COA affirmed.
SCOTUS granted certiorari.
SCOTUS holds carried a firearm applies to a person who knowingly possesses and
conveys firearms in a vehicle which the person accompanies.
Question: whether the phrase carries a firearm is limited to the carrying of firearms on
the person.
Breyer (Majority opinion)Ds conduct falls within scope of carries a firearm.
Definition of carries includes carrying a firearm in a vehicle.
o Statutes language: what does carries the firearm mean?
Primary meaningper OEDs 1st definition: to convey something in a wagon,
car, truck, or other vehicle that one accompanies.
King James Bible
D. Defoe, Robinson Crusoe
H. Melville, Moby Dick
California v. Acevedo: carrying of drugs in a car on in its trunk
New York Times
US News
Boston Globe
Colorado Springs Gazette
Arkansas Gazette
San Diego Union-Tribunes
Special meaningbearing or packing; OED 26th definition is to wear, bear,
hold up, or sustain, as one moves about; habitually to bear about with one.
Similar definition in Blacks Law.
These definitions do not purport to limit carrying of arms to the
circumstances describe.
Congress did not intend to limit carries to these special definitions.
Federal Courts of Appeals unanimously concluded carry is not limited
to special meaning, but includes primary meaning as well.
Other meanings are recognized, but not relevant here.
o Purpose of statuteto combat dangerous combination of drugs and guns
o Legislative history
When individual has firearm on his person
When criminal takes gun in his hand
Law enforcement has urged carrying firearms in motor vehicles to be

Criticism that it might apply to drunk driving gun carrier

Criticism that it criminalizes gun possession
o Ds arguments
Primary definition of carry makes it equivalent of transport
Court: transport is broader that includes carry, but also encompasses
other activity
Per Bailey v. US, court considered uses a firearm to be construed
narrowly. It would be anomalous to construe uses narrowly then carried
In Bailey, narrow interpretation was to give effect to use, so as not to
swallow carry. Here, to maintain the integrity of carry would require a
broader interpretation.
Reading of statute would extend coverage to passengers on busses, trains,
ships, checked luggage
Legislators suggest carries has a broader scope
Court says that statute offers limiting words (during and relation to a
drug crime)
Court should construe carry to mean immediately accessible
Not in language
No indication of congressional intent
Petitioners and dissent invoke rule of lenity
Rule of lenitywhen uncertain as to defendants guilty, give the
defendant the benefit of the doubt.
Does not apply here. To invoke the rule, there must be grievous
ambiguity/uncertainty in the statute, not simple existence of some
Ginsberg (Dissent) wants a narrower (on or about the person) construction of carries a
o Would confine carries a firearm to the undoubted meaning of that expression in
the relevant context (that is carrying the weapon on or about Ds person).
StipulationUndisputed that carries encompasses carrying weapon on or
about his person.
PrecedentBailey construed uses narrowly to mean active deployment of
the firearm.
Rule of ConstructionPrinciple of lenity would consider the weight and
burden of the mandatory five year prison term.
o Ds stake is what sentencing statute governs. The difference is between 4 extra
months or an extra 5 years.
o Doesnt think dictionaries, surveys of press reports, Bible, can dispositively dictate
what carries means.
Majoritys evidence is selective and not reliable indicator of what Congress
o Bailey court emphasized the importance of context.
Carries applies to the most dangerous caseshaving a gun at hand, ready
for use as a weapon
Its reasonable to read life-jeopardizing cases to have mandatory minimum
sentences, but other imminently less threatening situations call for more
flexible Guidelines.
o Congressional intentTitle 18s chapter on Firearms

Legislature did not routinely acknowledge distinction Court makes between

definitions of carries. In fact, it uses transports when carries would be the
right word.
925(a)(2)(B) one could carry gun to a car, transport it to a shooting
competition, and use it to shoot targets
956A one could transport gun in car, but under no circumstances could the
gun be readily accessible while she travels in the car
Rule of construction (Principle of Lenity)where there is doubt, resolve ambuity
in favor of the defendant

U.S. v. Maldanado (possession found)

Facts: (Santos) was given cocaine (8 kilos) that was to be delivered to Ponce, Puerto
Rico. Santos had earlier been approached by American agents, and he had accepted the
drugs with the approval of his agent so they could track the drugs. He was to deliver the
drugs to Palestino in a hotel. When Santos asked the front desk for Palestino, Rafael
Angel Zavala Maldonado (Zavala) appeared and Santos followed him to his room.
Santos informed him that he has the drugs to be delivered to Palestino. Zavala said he
was Palestinos friend and that he would be arriving shortly. Zavala asked if they could
put the cocaine in the other room, and Santos said no. The two left the room and Santos
had placed the bag in the closet. When they left the room they were detained by the
Jury convicted D for possession of cocaine with the intent to distribute.
D appeals conviction.
1 COA affirms.
o D argues evidence insufficient to support conviction for possession.
Not possession in lay persons sense. No evidence he touched the bag or
saw cocaine or was ever alone in the room with it or that he had opportunity
to remove it from the hotel.
o Court says possession is understood in context of the history of interpretation of
the statute.
Includes not only physical possession, but also constructive possession
which includes possession through another and joint possession.
Constructive possession: power and intention to exercise control or
dominion over an object not in ones actual possession
o 21 USC 841 possession of cocaine with intent to distributewhat does
possession mean?
Actual possessionimmediate, hands-on physical possession
Constructive possession(1) power and (2) intention to exercise
control/dominion over an object not in ones actual possession, i.e.
possession through another, joint possession, exclusive possession; location
in Ds home/car is common basis for attributing possession. Location of
object in domain specially accessible to D can be enough to permit jury to
find possession.
The courts analysis:
o Zavala was not in possession while in the room with Santos.
o Zavala was in possession when parties departed from room leaving drugs inside
Santos surrendered actual possession
With agreement of both parties, drugs in Zavalas room (constructive
possessionpower and intention to exercise power)

Effective power over thing possesseddrugs in Zavalas room with his

knowledge and consent. He is free to come in and out. [drugs in a Ds
homes or car is common foundation for attributing possession; though
possession not exclusive, joint possession is sufficient for conviction]
Intention to exercise controldrugs stored with the purpose (as far as
he knew and intended) of facilitating transfer to Palestino.


How long does possession have to be?

US v. Lanemomentary handling of gun (purchasing it for a friend) sufficient for
US v. TeemerD not entitled to transitory possession defensehe was a passanger in a
hatchback with an AK-47 assault weapon in the cargo area. He admitted to handling gun
and removing it from a couch in drivers apartment in order to sit down.
State v. Barger (not possession)
Can a person be found guilty of possessing or controlling digital images of sexually
explicit conduct involving a child based on searched and find through internet on
After investigating a report that Barger (defendant) had allegedly sexually abused a child,
a police officer named Sullivan spoke to Bargers wife who allowed Sullivan to look at
Bargers computer. The computer was eventually seized by the police who made a copy of
its hard drive and examined it. Police detectives found several pictures of naked children
in the computers Internet temporary file cache.
D charged with eight counts of encouraging child sexual abuse in the second degree.
o Encouraging child sexual abuse (2nd)possessing or controlling a visual recording
of sexually explicit conduct involving a child
Trial court concludes jury could find D guilty. Circuit court and COA affirm judgment.
o Williams: images were found in temp internet files cache. These are an automatic
function of a computers web browser. Ordinary user would not be aware or be
able to access the function. No evidence of images purposefully copied and saved.
o D makes motion for acquittal: no evidence images were result of intentional of
knowing action, insufficient evidence to establish possession or control.
o State: his actions of intentionally accessing the websites that contained proscribed
images constituted possession and control in the required sense.
SC Oregon disagrees. Reverses.
o State: his actions of intentionally accessing the websites that contained proscribed
images constituted possession and control in the required sense.
State: Physical control of computer physical control of images
Court: No, its more like a visitor bringing item to your home. You may
be aware of it, but its not possession.
State: Control of the image arises from actively navigating to the website it
Court: No, its more like going to a museum. You expect it to be there,
but you dont possess the things in a museum.
State: To establish control, state need only show D had the ability to direct
or influence images
Court: Assumes constructive possession is nothing more than
bare/practical ability to exercise a directing/restraining influence.
o State v. Oare and State v. Weller: physical ability to control
itself insufficient to establish constructive possession.

State v. Casey: physical ability to possess a thing is insufficient

to establish constructive possession.
Court: Would sweep in more factual scenarios than court believes
intended by legislature. Too broad.
o If mere ability is possession than anyone who uses the internet
could be guilty of violating the statute.
State: Capacity of computers makes browsing for child pornography
qualitatively different from viewing and should be possession.
Court: Existence of capacity does not transform into possession.
Ds motion for judgment of acquittal should have been granted.

US v. Tuckeraffirmed possession in child pornography viewing case... Tucker intentionally

sought out and viewed child pornography. He knew his Web browser was saving pornography
on his computer.
Introduction to penal codes and elemental analysis: CB 104750 (Appendix
A), MPC Articles 1 and 2, handout on analyzing criminal liability.
Elements of an offense: (1) act, (2) culpable mental state, (3) Results, (4) attendant
The general requirement of the guilty mind: 194214 (but skip notes 2 on
pages 204--05, and note 6 on pages 208--09) & MPC 2.02
People v. Dillard (knowledge not element of offense)
Jury finds D guilty of misdemeanor carrying a loaded firearm in a public place.
Is knowledge that firearm is loaded an element of the offense?
o Court holds no. Affirms judgment.
D rides a bike and carries with him a rifle case. He gets stopped and searched. Rifle is
discovered to be loaded. He says he didnt know.
Trial court says whether he knew or not is inadmissible/irrelevant evidence. Instructed
jury knowledge not an element of the offense.
D argues not requiring knowledge violates:
o Due process right to present a defense
o Basic principle of common law (crime requires union of act and wrongful intent)
o California Penal Code: every person who carries a loaded firearm on his
erson or in a vehicle while in any public place/public street is guilty of a
People v. Harrisondoes not require knowledge that gun loaded; knowledge
not specify knowledge as element of the crime.
US v. Balintscienter is generally necessary. Exception: There has been
modification in respect to prosecutions under statutes where it would
obstruct the purpose of the statute. Courts must look to legislative intent.
o California Code Section 20 (codification of common law rule): in every
crime or public offense there must exist a union or joint operation of act
and intent or criminal negligence.
Exceptions: regulatory offenses enacted for public health/safety
punishable without culpability


This statute was enacted for public peace/health/safety reasons.

Criminal intent would be difficult/impossible to prove.
Strict liability probably intended by legislature here
Society has interest in possessor of weapon ascertaining whether gun is loaded or
This gun had no safety latch and if it fell, chances of it going off were about
Not knowing gun is loaded is even more dangerous to public safety
Holding: this statute has not knowledge element, so lack of knowledge is not a

Balinttrial court quashes indictment for selling narcotic substance without permission of IRS
because prosecution failed to charge Balint had known the nature of the drugs he was selling.
SCOTUS reversedShevlin-Carpenter v. Minnesota (in rohibition/punishment of particular acts
State may in maintenance of public policy prohibit a defense of good faith or ignorance.
Model Penal Code and Strict Liability
2.05when state imposes even impure strict liability, criminal offense may be punished only as
a violation
1.04(5)distinguishes a violation from a crime, by defining the former as an offense
punishable only by fine or fine and forfeiture or other civil penalty that shall not give rise to
disability/legal disadvantage based on conviction.
MPC forbids formal strict liability by conditioning liability on some level of awareness of every
act, circumstance, and result that defines actus reus.
MorissetteD convicted of knowingly converting government property. SCOTUS reverses
need some mental intent element; evil mind + evil hand
U.S. v. Wulff (the requirement of mens rea (scienter))
Question: does absence of proving scienter violate Ds right to due process?
District court, dismissed indictment that charged D with offering to sell migratory bird
o Felony conviction does not (but should have required) proof of scienter
o Crime not known to common law
o Penalty is severe to result in irreparable damage to reputation
U.S. appeals.
6th COA: affirms, felony provision unconstitutional.
Facts: D sells to a special agent a necklace made of red-tailed hawk and great horned owl
talons. Both birds are protected under Migratory Bird Treaty Act.
Jury returned indictment charging violation of 6 USC 703, 707(b)(2)
o 16 USC 707(b)(2) whoever in violation of sections 703 to 711 shall sell, offer for
sale, barter or offer to barter, any migratory bird shall be guilty of a felony and
shall be fined not mare than $2000 or imprisoned not more than two years.
D motions to dismiss indictment or enter order directing charge of misdemeanor
o 707(b)(2) does not require guilty knowledge, felony conviction would be violation
of due process
o DC agreed. Sentenced him under misdemeanor rather than felony provision.
Proper test:
o Court uses Morissette/Holdridge as precedent. When is it appropriate to eliminate
the mental element of an offense?

If federal criminal statute omits mention of intent, involves policy, standard

is reasonable, penalty small, conviction does not gravely besmirch, not
common law, congress intended not to have criminal intent,
o Test is eliminating element of criminal intent does not violate due process when:
Penalty small
Conviction does not besmirch
o Application
707(b)(2) does not meet these criteria. Unconstitutional.
To be convicted of a felony, congress must require prosecution to prove the defendant
acted with some degree of scienter.

Baender v. Barnettreading in culpability. Court agrees due process required mental

culpability, but concluded it was authorized to construe the statute as containing one.
US v. Englercourt cannot rewrite the law to include an intent requirement.
Shelton v. SecretaryFl strict liability drug possession law violated due process. Involves a
change in the law from knowledge standard to strict liability.
Strict liability offenses are disfavored. Tripartite analysis for evaluating strict liability
consider: (1) penalty imposed, (2) stigma associated with conviction (3) type of conduct
purportedly regulated
Alan Michaelsstrict liability is constitutional when/only when intentional conduct covered by
statute could be made criminal by legislature. (1) legislature cannot punish fundamental right
(2) punishment must be predicated on voluntary act/omission
Smith v. Californiafirst amendment requires law condemning possession of obscene material
must include culpability with respect to obscenity
US v. X-Citement Videoknowingly standard in PCASE Act; presumption in favor of scienter
requirement should apply to each statutory element which criminalize otherwise innocent
US v. Park/US v. DotterweichCourt cites prosecutorial discretion as limiting strict liability
Morissette v. US (exceptions to mens rea)
Eliminating mens rea element not violative of due process if:
Standard imposed is reasonable and properly expected of person
Penalty small
Conviction does not gravely besmirch
Statutory crime not taken over from common law
Congressional purpose supporting
Lambert v. California (the requirement of mens rea (scienter))
Los Angeles Municipal Code makes it unlawful for:
o Convicted person to be or remain in LA for more than 5 days without registering
Convicted personany person after Jan 1, 1921 voncivted of offense
punishable as felony in CA OR who is hereafter convicted of any offense in
any place other than CA which if committed in CA would have been
punishable as felony.
o Failing to register is a continuing offense, each days failure constituting a
separate offense


D arrested on suspicion of another offense was charged with violating this law. She was a
resident of LA, convicted of forgery (a felony in CA). She did not register at the time of
her arrest.
o D argues the code denies due process of law
o Court denies the objection, sends case to jury, which finds D guilty.
o D appeals.
o Douglass (Majority)
Does a registration act that requires no showing of actual knowledge or
probable knowledge violate due process?
Held: registration provisions violate Due Process requirement of the 14 th
General rule: ignorance of the law will not excuse
Exception: due process places limit with the requirement of notice.
o When do you need notice? To give citizen chance to defend
Before property interests disturbed
Before assessment made
Before penalties assessed
Registration laws fall into two categories
Regulation of business activities
Convenience of law enforcement agencies
Court says actual knowledge of duty to register or proof of the probability of
such knowledge AND subsequent failure to comply are necessary before
conviction under the ordinance can stand.
Essentially after the D is aware of duty to register, he must be given
an opportunity to comply this law doesnt allow that so its
o Frankfurter (Dissent)
Majority draws line between doing and not doing.
This case should be categorizes under the body of law that deals with
regulatory measures in the exercise of police power (see U.S. v. Balint)
There should be no distinction between not knowing about what the law
requires and not knowing that an action is illegal.
This leads to a slippery slope that calls into question legislation all over the
Categories of culpability: CB 214231 & 104750 (Appx A), MPC Arts. 1 & 2.01 &

Model Penal Code 2.02. General Requirements of Culpability.

(2) Kinds of Culpability Defined
(a) Purposely. A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(b) Knowingly. A person acts knowingly with respect to a material element of an offense
(i) if the element involves the nature of his conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain
that his conduct will cause such a result.
(c) Recklessly. A person acts recklessly with respect to a material element of an offense when
he consciously disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct. The risk must be of such a nature and degree that, considering
the nature and purpose of the actor's conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding person
would observe in the actor's situation.
(d) Negligently. A person acts negligently with respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such a nature and degree that the
actor's failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation.
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to
establish a material element of an offense is not prescribed by law, such element is established
if a person acts purposely, knowingly or recklessly with respect thereto. (Recklessness Default
Regina v. Faulkner (one cannot unintentionally commit arson (requires
unlawful/malicious intent))
D charged with feloniously, unlawfully, and maliciously setting fire to ship.
D tries to get rum, rum starts running, he lights a match which causes rum to catch fire
and the ship is completely destroyed.
D requests acquittal on ground
o Facts that proved indictment not sustained
o Insufficient evidence to prove unlawfully and maliciously set fire to ship
o Felony is sufficient for indictment; intent immaterial
Dowseconviction should be quashed
Barrynot prepared to assent to proposition that accidents during felony enough to
sustain guilt
Fitzgeraldcannot be sustained, should be quashed
o Intention should be relevant. Here are the cases where it would be:
Intend to do the act charged
Necessary consequence of some other felonious act
Probable result D foresaw or should have foreseen
o Here, D did not intend to set fire to the ship.
OBrienconviction should be quashed
o See precedent Reg v. Pembliton, even stronger grounds for upholding conviction,
but he got off. Threw stone intending to hit someone, broke window.
o Should defer to the jury. Intention/malice questions closed by finding of jury that
prisoner did the act he was charged while engaging in a felony.
Malicious Damage Actfeloniously, unlawfully, maliciously
Specific vs. General Intent
Bishops View
General intentsufficient to make offender criminally responsible for any harm caused
Specific intentcould only transfer to a result of the same kind intended. [i.e. inchoate crimes
attempts, larceny, burglary, wounding with intent to disfigure]

Other Views
(a) specificmental element of any crime; generalbroader question of Ds
(b) generalintention to do act proscribed; specificunexecuted intention to accomplish
some further result
(c) generalintent to do action under descriptions; specificintention to do action under
some particular description
(d) specific intentpurpose; feneral intentknowledge, recklessness, negligence
Specific intentoffender actively desired prescribed criminal consequences
General intentoffender must have adverted to the prescribed criminal consequences as
reasonably certain to result from his act/omission
US v. Kewellwilfull ignorance satisfied requirement of knowing possession/importation of
Carosi v. Commonwealthcriminal negligence established by showing Ds acts/omissions were
of a wanton/willful character showing reckless/indifferent disregard of rights of others under
circumstances reasonably calculated to produce injur or which make it not improbable that
injury will be occasioned and knows/charged with knowledge of probable result of acts.
Faulkner under MPC
220.2 Causing or Risking Catestrophe
(1) Causing Cateastrophea person who causes a catastrophe by explosion, fire, flood or
other harmful or destructive force or substance commits a felony of the second degree
if he does so purposely or knowingly, or a felony of the third degree if he does so
220.3 Criminal Mischeif
(1) Offense defined. A person is guilty of criminal mischief if he: (a) damages tangible
property of another purposely, recklessly, or by negligence in employment of fire,
explosives, or other dangerous means (b) purposely recklessly tampers with tangible
property of another so as to endanger person/property
(2) Grading. Criminal mischief is a felony of third degree if actor purposely causes pecuniary
loss inexcess of 5K or substantial interruption/impairment of public communication,
transportation, or other public service. It is misdemeanor if actor purposely causes
pecuniary loss in excess of $100, or a petty misdemeanor if he purposely or recklessly
causes pecuniary loss in excess of $25. Otherwise, criminal mischief is violation.
MPCeschews specific/general intent
US v. Doearson is a general intent crime. Because D committed blameworthy act and was
conscious of risk of serious damage, she could be liable despite lack of intent
State v. Richardson
o (a) It is unlawful for individual who knows oneself to be infected with life
threatening disease knowingly to (1) engage in sex/sodomy with another with
intent to expose individual to life threatening disease.
Court: state must prove D (1) knew he was infected with HIV, (2) intentionally engaged
in sex with Ps (3) intended to expose ps to HIV


Mistake of fact: CB 23145 & MPC 2.02, 2.04.

Regina v. Prince (If statute is silent as to mens rea required, court not bound to read
mens rea requirement into statute)
Facts: D takes Annie Phillips (under 16, shes 14) out of possession and will of her father.
Trial court finds him guilty.
The mistake of fact: D argues she looks older than 16, she told him she was eighteen, D
believed it, and the belief was reasonable.
o Question: is there an element of knowledge required by the statute?
o Prisoner argues guilty mind is essential; there should be a presumption that crimes
were done knowingly
o Court looks at intention of legislature which is to punish abduction irrespective of
knowledge of age.
Statutes context (in a line of code for protection of young women)
Slippery slope (would create a perversion of results in sexual assault cases)
o Question: is he guilty for knowing wrongly she is over sixteen?
o Doctrine of moral wrong The act forbidden is wrong itself irrespective of the law.
o Legislature meant it should be at the risk of the taker whether or not she is
o Is Bramwell suggesting strict liability here?
o Looks at similar statutes, judicial decisions, legislative intent
o unlawfulwithout lawful excuse
o The mistake doesnt actually matter because even it she had been 18, it would
have been illegal anyway. Her father has legal custody until she is 21. He did the
very wrong contemplated by the statute.
Brett (dissents)
o No conviction for crime in England in absence of criminal mind or mens rea.
Mens rea: when prisoner does acts that if results were as anticipated
amount to a crime; whatever facts are present in the criminals mind
Here, if there was a mistake, no mens rea, no conviction.
People v. Ryan (knowledge applies to weight of controlled substance, distributive
default rule)
Felony to knowingly and unlawfully possess six hundred milligrams of a hallucinogen.
The question is does knowingly apply to the weight of the controlled substance?
Held: yes.
Facts: D asked friend (H) to receive shipment of hallucinogens on his behalf. H does, but
is intercepted by an investigator (posing as Fed Ex), who arrests him upon signing for it.
D indicted for criminal possession of controlled substance in the second degree.
o Properties of package weighed 932.8 grams.
o No evidence as to how much hallucinogen would typically appear in two pounds of
o D motioned to dismiss for insufficient evidence he knew the amount of
o Court denies motion.
Ruled that knowing refers only to possession, not weight requirement.

D appeals alleging trial evidence insufficient to satisfy mental culpability element.

o knowingly does apply to the weight.
Sources: will of legislature, language of statute, rules of construction
Rules of construction
o Absent clear intent for strict liability, should be construed to
define a crime of mental culpability (which applies to every
material element of an offense)
o distributive default ruleif a single mens rea is set forth, it
presumptively applies to ALL elements of the offense
Exception: when contrary legislative intent is plain (i.e.
legislature intended strict liability).
Trial court is wrong because it would have made this a strict liability offense,
without proving knowledge of weight. Differences in punishment should
correspond with culpability (notions of individual responsibility,
o Is there sufficient evidence to convict D on possession?
No because there is no evidence linking the ratio of hallucinogen in the
o Prohibitively difficult to secure convictions if they had to prove knowledge of
Court says there will be evidence; inferable from handling of material
Also a concern of over-penalizing an unwitting possessor.

NYchanged law. Person guilty of criminal possession of controlled substance (2 nd) when he
knowingly & unlawfully possesses: a hallucinogen and said hallucinogen weighs sixhundred
twenty-five milligrams or more
said hallucinogen weighs vs. weighing
Flores-Figueroa v. USFederal law forbids aggravated id theft(1) predicate crime (2) D
knowingly transfers, possesses, or uses without lawful authority, a means of identification of
another person. D used documents in own name by id numbers of others. He argues he didnt
know numbers belonged to someone else. Gov says knowingly did not apply to of another
person. DC agrees with gov. SCOTUS reversesGove must show D knew means of id belonged
to another person and were not simply a random group of numbers.
Default Culpability
New York law (15.15(2)) disfavors strict liability. (15.15(1)) distributes culpability term
specified in the offense definition to every element, absent clear legislative intent to the
This parallels MPC
o 2.02(1)person not guilty unless acted purposefully, knowingly, recklessly, or
negligently to each material element of offense.
Exception (2.05): offense is mere violation nor punishable by incarceration
OR legislative purpose was to impose absolute liability.
o 2.02(4)distributive rule; prescribed culpability applies to all material elements.
Recklessness Default Rule
State v. LimaD convicted of 1st degree child abuse for lowering victim into tub of
scalding water.

Rulewhere requisite intent is not defined in a statute [MPC 2.02(3) says] such
element is established if a person acts purposefully, knowingly, or recklessly with
respect thereto.

State v. Johnson
Ohio rule
o Except as provided, person not guilty of offense unless person has requisite
culpability for each element
o When offense does not specify degree of culpability, and plainly indicates purpose
to impose strict criminal liability, then culpability not required. When section
nether speficies bulpability nor indicates purpose to impose strict liability,
recklessness is sufficient culpability to commit offense.
No distributive rule. Was D entitled to default recklessness instruction? Court says no,
default rule applies only when complete absence of mens rea in section defining offense.

Mistake of law: CB 24564 [but skip 251-253 n.3] & MPC 2.02, 2.04.

Common Law: Mistake of Lawignorance of law or mistake of law is no defense

Model Penal Code 2.04(1)(a): ignorance or mistake as to a matter of fact or law is a defense if
the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense.
There is no presumption to know the law, but knowledge ones act is criminal is not ordinarily
an element. Prosecution only needs to prove D knew about law if statute requires it.
Model Penal Code 2.02(9): Neither knowledge/recklessness/negligence as to whether
conduct constitutes an offense or as to the existence, meaning or application of the law
determining the elements of an offense is an element of such offense, unless definition of
offense or Code provides.
People v. Bray (mistake of law jury instruction applicable)
Bray committed felony in Kansas. Then goes to CA.
Bray appeals conviction on two counts of being felon in possession of a concealable
Bray argues trial court should have instructed jury that ignorance (of the law) or mistake
of fact is a defense to the crime
o Ignorance of law: Bray argues court must introduce evidence he knew he was a
o Mistake of fact
Two investigators conduct search of Brays house and car and find .38 and .22 pistol.
o Felon in possession of concealable firearm: must prove (1) conviction of a felony (2)
Ownership, possession, custody or control of a firearm capable of being concealed
on the person
o CALJICact committed/omission made under ignorance/mistake of fact which
disproves criminal intent is not a crime.
Honest, reasonable beliefs if true would make act/omission lawful
o Does 12021 require proof of Ds knowledge of his felony status and is ignorance a
People v. Mendoza: knowledge might be conceivably relevant
Relevant when there is doubt D knew he had committed a felony

Here, not clear if Kansas offense was felony or misdemeanor

Court rules that mistake/ignorance instruction should have been given.

Regina v. SmithSmith, tenant, installs electric wiring and later removes them damaging
ceilings, walls, floor. Court dismisses charge of damaging property of another on ground that
prosecution had not proven Smith did so intentionally.
Cheek v. U.S. (mistake can negate intent specified by lawwillfulness)
Title 26 7201: Any person who willfully attempts to evade/defeat tax shall be guilty of
a felony
Title 26 7203: Any person required to make a return who willfully fails to make such
return guilty of misdemeanor.
o What does misdemeanor mean?
Cheek charged with 6 counts under 7203, and 3 counts under 7201.
Cheek argues that he attended tax seminar. As a result, of indoctrination, he sincerely
believed tax laws were unconstitutionally enforced and that his actions were lawful. He
acted without willfulness required.
Trial court
o Willfulness:
government must prove the voluntary and intentional violation of a known
legal duty, a burden that could not be proved by showing mistake,
ignorance, or negligence.
Reasonable good-faith misunderstanding negates willfulness
Mere disagreement would not
If Cheek honestly/reasonably believed he was not required to pay income
taxes or file tax returns, not guilty verdict should be returned.
But, personal opinion/disagreement is not good faith misunderstanding.
Advice/research on unconstitutionality of taxes nor reasonable
o Jury returned verdict, guilty on all counts.
Cheek appeals on bad jury instructions.
COA affirms.
o General rule: ignorance of law or mistake of law is no defense.
Exception: when congress specifies intent [i.e. uses the word willfully]
Reasoning: laws have become complicated. Congress has made
specific intent (willful) an element of crime, which may negate
o Murdock
Willfulnessdone with bad purpose or with evil motive
o SC
Willfulness, must prove:
D knew duty
o If Cheek asserted a true belief that IR Code did not purport to
treat wages as income, then that is not evidence of willfulness
COA wrong; good faith need not be objectively
o If Cheek claims provisions are unconstitutional, they reveal full
knowledge and intentional violation
D voluntarily and intentionally violated the duty
He could have:
Filed amount required for law, ask for refund, take it to court if denied

Declined to pay and challenge claims in Tax Court

Ds views on validity are irrelevant to willfullness and instruction to
disregard them would be proper.
But COA on jury instruction to disregard belief that wages are not income
was an error.
Remand case.

Mistake of law as an excuse

Commonwealth v. Twitchell (mistakethe reasonable belief exception)
Son died of consequences of peritonitis caused by perforation of bowel due to Meckels
diverticulum. There was evidence that condition could be corrected with surgery with
high success rate. Ds are Christian Scientists who believe in spiritual healing. They
retained CS practitioner, CS nurse. Publication quotes G.L. c. 273 1law recognizes
spiritual healing in accordance with tenets and practice of religion
Twitchells appeal conviction for involuntary manslaughter.
State claims each D guilty of manslaughter because intentional failure to seek medical
attention involve high degree of likelihood of substantial harm as to be wanton or
reckless conduct.
D argue spiritual treatment provision bars involuntary manslaughter charge.
o They relied on the law. Failing to extend a violation of due process because they
lacked fair warning their actions would be basis for prosecution.
o They relied and were misled by AG opinion.
Court says opinion might invite conclusion that parents who fail to provide
medical services on basis of religion not subject to criminal prosecution in
any circumstances
They did not read AG opinion but knew of CS publication which relied upon
Lower Massachusetts Court disagrees with D. GL provides no complete protection
against involuntary manslaughter. Provision refers to neglect and lack of proper physical
MA General rule: ignorance of law is no defense
o Exception: (entrapment by estoppel, reliance) when D has reasonable belief that
conduct is not a violation of law
E.g. D relies on official statement of law (even if wrong) contained in official
interpretation of a public official charged with interpretation or enforcement
SJC MA says judgments should be reversed because Twitchells entitled to present
entrapment by estoppel defense, reasonable interpretation of AG opinion a question of
fact, reasonable reliance on church publication also question of fact.
MPC 2.04(3)(b)reasonable reliance upon an official statement of law
Long v. StateDelaware SC allowed D a new trial for bigamy to present evidence on excuse
(due to reasonable reliance upon statement of lawprivate setting)
US v. Petrieclaim that D did not willfully violate money-laundering law b/c misled by attorney
would fails where D did not disclose all relevant facts to attorney and lack good faith.

Capacity for mens rea and special problems of proof: CB 26474.

Hendershott v. People (mental impairment admissible as to mens rea)

P returns home to find D waiting in her bedroom. D struck, kicked, and began to choke P.
P escaped. Police later found D unconscious and charged D with third degree assault.
County court

D intended to offer expert opinion evidence to establish

D had minimal brain dysfunction (causes lack of impulse control) and
therefore lacked the requisite culpability of knowingly or recklessly causing
bodily injury.
o DA filed motion to exclude evidence.
Under 18-1-803, CRS evidence of impaired mental condition is restricted to
specific intent crimes, and third degree assault is not a specific intent crime.
Under 18-1-50
o 1Specific intent crimes: intentionally with intent
o General intent crimes: knowingly or willfully
County court says since recklessly is even less serious form of culpability,
its not specific intent. Rules expert testimony inadmissible.
o Trial court affirms.
Colorado SC grants certiorari. May evidence of mental impairment due to mental disease
or defect by admitted?
o Held: Yes. Reliable and relevant evidence of mental impairment is admissible.
o Conceded legislature has power to define criminal conduct BUT its bounded by
constitutional law.
o Concedes legislature can formulate and limit affirmative defenses BUT not
defendants right to present reliable and relevant evidence.
o Trial courts decision based on statute that only specified evidence was admissible
for specific intent crimes. The SC found this unconstitutional.
By refusing admissibility of evidence, trial court made prosecutions
evidence uncontestable.
Peoples arguments:
o Mental impairment evidence would render insanity defense unnecessary
SC: Legal sanity is not a proxy for mens rea.
o Problems of proof arise when psychiatric testimony is admissible
Culpability is subjective. Expert testimony is no less helpful in determining
knowingly/recklessly questions than specific intent questions.
o Protection of community justifies exclusion of mental impairment evidence in
nonspecific intent crimes
Barring expert testimony is not the solution here. The solution would be

Approaches to mental impairment

Hendershot follows MPC approach allowing evidence of psychological impairment to
negate mental element of all crimes. This is the minority view.
Much larger number allow evidence to negate specific intent only.
Some states do not permit it to negate mens rea at all.
US v. Brightpassive dependent personality [girl says she believes everything her boyfriend
tells her] evidence not admissible.
Can insanity diminish capacity to act negligently?
Voluntary intoxication: mental impairment not the same as voluntary drunkenness [involves
degree of moral culpability]
State v. Cameron (evidence of intoxication NOT admissible; intoxication admissible
when may negate culpability requirement of purposeful conduct, here it doesnt)
Was evidence sufficient to require trial court to instruct jury on Ds intoxication?

D indicted for second degree aggravated assault, possessing a weapon with purpose of
using it unlawfully (broken bottle), fourth degree resisting arrest.
D overturns table, the attacked victim with broken bottle. When police arrive, D violent.
She threw bottle at their vehicle, shouted obscenities, tried to fight them.
Trial courtconviction on all charges.
Appellate divisionreverse
o D claims voluntary intoxication is a defense when it negates essential element of
SC NJ agrees.
o All elements require purpose.
SC NJ agrees.
purpose defined: a conscious object to engage in conduct or cause such a
o Evidence sufficient to require issue of Ds intoxication be submitted to jury.
SC NJ disagrees.
o Common lawintoxication not a defense. Exception: when degree of intoxication
renders a person incapable of entertaining intent, its an effective defense.
Principle was intoxication a basis for defense to specific intent crime but
not general intent crime
o NJSA: Intoxication
Intoxication not defense UNLESS it negatives element of offense
When recklessness establishes element of offense, if actor due to selfinduced intoxication is unaware of risk that he would have been aware of if
sober, unawareness is immaterial
Intoxication by itself does not constitute mental disease
Intoxication which (1) not self-induced is affirmative defense if by reason of
intoxication actor at time of conduct lacks substantial & adequate capacity
either to appreciate wrongfulness/conform his conduct to requirement of law
o Original Proposed Code rejects specific/general intent and uses four states of
culpability instead.
Court says specific/general linger in four CMS
Specificpurpose (desire to bring about) and knowledge (actual
Generalrecklessness (consciously disregard) or negligence
(should know)
Code allows defense for purpose/knowledge, but not
Reasons: Without specific CMS, criminal conduct would not present a
comparable danger or actor would not pose a significant threat; Legal
policy calls for graver sanctions against conscious wrongdoers
o Evidence of intoxication would negate culpability elementsaggravated
assault, possession of a weapon with purpose to use unlawfully, resisting
arrestall require purposeful conduct.
o What level of intoxication must be demonstrated? What quantum of proof is
State v. Stasio: a showing of such a great prostration of the faculties that
the requisite mental state was totally lacking
He was so wasted, he did not have intent
o Evidence insufficient (does not meet the Stasio test) to require the trial court grant
Ds requested jury instruction on intoxication.

Evidenceshe carried of quart of wine; consumed a pint; gave most if it

out this is not enough; too good at recalling details for intoxication to be
o D also claims self-defense. Says she was warding off sexual assault. Court says if
this is believed, it would be a valid defense.
SC NJreverse ADs reversal, trial court correctly refused Ds request.

MPC 2.06 Intoxication

(1) Voluntary intoxication of actor not defense UNLESS it negatives element of offense
(2) When recklessness establishes element of offense, if actor, due to self-induced
intoxication, is unaware of risk he would have been aware had he been sober,
unawareness immaterial.
State v. Warrenintoxication that negates purpose/knowledge should also negate recklessness.
MPCintoxication should not exonerate D from crimes involving recklessness.
Montana v. Egelhoff (unconstitutional to exclude intoxication evidence; Ginsberg
(concur)d/p on if evidentiary prescription (not ok) or redefinition of element offense
D convicted for purposefully or knowingly causing death.
Montana SC overturned because jury instructed intoxicated condition could not be
considered. Montana SC thought this relevant, and violated due process.
SCOTUS overturns Montana SC reversal. Is it unconstitutional to exclude intoxication
o OConnor (plurality, yes)excluding evidence relevant to the mental element of an
offense violated due process by presuming mens rea.
o Scalia (plurality, no)state could exclude exculpatory evidence relevant to mens
o Ginsburg (concurrence with no)
If 45-2-203 is an evidentiary prescription, it offends due process.
RBG: Its not under the Montana evidentiary rules. Its under crimes.
So its not an evidentiary prescription, but a redefinition of element of
If 45-2-203 is redefinition of element of offense, due process not an issue.
Montana argues it takes away voluntary intoxication from mens rea.
State does not need to prove purposely or knowingly cause death of
What does Montana need to prove?
o D caused death with actual knowledge or purpose OR
o D killed under circumstances that would establish knowledge or
purpose but for Ds involuntary intoxication
States have power to define elements of criminal offense. Defining
mens rea to eliminate exculpatory value of voluntary intoxication does
not offend constitution. (sides with Scalias conclusion)

But-for cause: CB 27587.

Causation is about attributing consequences to human decisions and human actions. There are
five strategies for limiting causation.

1. But-for causation: law generally confines causes to the class of necessary conditions or
acts but for which the harmful result would not have occurred.
a. Exceptions: simultaneous sufficient conditions
2. Violent acts: common law concerned with suppressing conspicuous violence. Necessary
condiions for a harmful result were only perceived as criminal if they appeared violent
(blows aimed at hurting or injuring)
3. Foreseeability (proximate causation): modern limitation; requires connection between an
actors culpable mental state and the result. To conclude causation, the action must be
one the perpetrator reasonably foresaw.
4. Intervening events: common law traditionally absolved Ds of causal responsibility for
creating a necessary condition for harm it could identify an intervening event that
broke the chain of direct causation. This requires: (1) an event that is a necessary
condition for the harmful result, (2) subsequent to Ds act, (3) not caused by Ds act.
a. Categorical rules:
i. Intervening voluntary actions: providing the necessary means for another
person to do harm was not to cause harm onself people have free will
ii. Temporal intervals: a lengthy interval between cause and result is
1. Victim might have suffered other misfortune
2. Other undetected factor might contribute to result
5. Duties: criminal law generally limits causal responsibility of omitters to those who have
some duty to act. Where passive conduct is necessary for a criminal result, it must be
combined with duty to act to constitute a cause.
a. Resulting from statute
b. Status
c. Contract
d. Undertaking
But-for causation
Regina v. Martin Dyos (cannot prove but-for cause, acquit)
Theres a scuffle between RM and five others. MD throws a brick and hits RM on the
back of the head. Theres a scuffle involving for certain PS, SK, MB, and RM (of 7) and
BT, IS, KW (of the five). RM is left lying in the road from severe head injuries. The five
fled. RM survives for 9 days before dying of his injuries.
MD charged with murder and grievous bodily harm.
o Two principal injuries
One of RMs injuries (to his right forehead) was caused by a bricked held by
One behind the right ear which there was no evidence for cause
o Cause of death
Cerebral contusion due to fractured skull.
RM received two or more separate blows. No evidence on what caused both.
Both principal wounds potentially fatal
No distinction on seriousness of either wound
Either probably would cause death.
Sequence indeterminate.
Reasonable possibility he could have recovered from first injury.
o No evidence of how second injury was caused.
Trial judge upheld Ds submission not to leave count to jury.
o D argues

Reasonable possibility injury behind the ear caused the death. No evidence
D caused it.
No evidence injury D did cause was beyond a reasonable doubt the cause of
To prove murder: death must be natural and probable consequence of act.

Rule: MDs act cannot be held to be cause of death if death would or could
have occurred without it.
For murder, Crown has to exclude possibility death caused by another injury.

Hart/Honere: three ways of limiting but-for causation

(1) Foreseeable by actor
(2) Achieved without voluntary action of another
(3) Regularly following such condition
R. v. Benge (substantial cause sufficient)
Facts: this is about a railway accident. Benge has a time book which details arrival of
trains. On the day in question, he works from the Saturday column instead of the Friday
column. He directs his crew to take up rails under the Saturday schedule. Usual practice
is to send one member with a flag to be at least 1000 yards in direction of the expected
train to watch and stop train in case of emergency. Wills is sent but only goes 540 yards.
A train comes by, it cannot stop and runs off the line, dashed on the bridge, and kills a lot
of people.
D argues no evidence of criminal act or default which had caused death.
o Accident would not have happened if other servants had done duty (flag man was
actually 1,000 yards away instead of 540)
o Judge says the problem with this theory is it would allow everyone to make the
same excuse (that they were not the sole cause) and no one would be criminally
valid at all.
Judge says assuming culpable negligence of prisoner, it is not material others by their
negligence contributed to cause it.
o Rule: If negligence is substantial cause of death, it is enough
o Question for jury is whether negligence of prisoner is substantial cause (whether
death mainly caused by the culpable negligence of the prisoner) of the accident?
Primary cause is taking up the rails on the wrong schedule; this negligence
causes the accident to be impending.
Court finds D guilty.

Proximate cause: CB 291301, 304 n.3316, MPC 2.03.

Proximate Cause: Foreseeability and Related Limitations

Commonwealth v. Rhoades (proximate causethe efficient cause standard)
Facts: Trainor, a firefighter, entered a burning building in an effort to rescue people who
were believed to be trapped inside. While inside the building, Trainor suffered from
heavy smoke and heat and had trouble breathing through his face mask. Trainor
collapsed while on the roof of the building and was taken to a hospital, where he was
pronounced dead on arrival. At Trainors trial in Superior Court, a medical expert for the
Commonwealth (plaintiff) testified that Trainor died from coronary thrombosis brought
on by cold weather, stress, and smoke inhalation.
Rhoades (defendant) was charged with arson for setting the fire and with second-degree
murder for causing Trainors death.

Rhoades was convicted on both counts and appealed his murder conviction.
o The trial judge instructed the jury that Rhoades could be convicted if his act in
setting the fire was either a contributing cause or part of the proximate cause of
Trainors death.
o D argues the jury instructions did not adequately describe the causal connection
that must exist between a defendants act and a persons death.
SJC of MA: The jury instructions exposed D to potential liability for events not
proximately caused by his act in setting the fire.
o The trial judge failed to instruct jury clearly that the defendants conduct must be
the efficient cause.
Efficient causethe cause that necessarily sets in operation the factors
which caused the death.
o Reversed, verdict set aside, remanded for further proceedings.

CALJI 8.55proximate cause is one that produces the result by natural and continuous
Section 2.03. Causal Relationship Between Conduct and Result; Divergence Between
Result Designed or Contemplated and Actual Result or Between Probable and Actual
Result. [cf. Restatement Torts 2d 9]
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal
requirements imposed by the Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose or the contemplation of
the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in
the respect that a different person or different property is injured or affected or that the injury
or harm designed or contemplated would have been more serious or more extensive than that
caused; or
(b) the actual result involves the same kind of injury or harm as that designed or contemplated
and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's
liability or on the gravity of his offense.
(3) When recklessly or negligently causing a particular result is an element of an offense, the
element is not established if the actual result is not within the risk of which the actor is aware
or, in the case of negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person
or different property is injured or affected or that the probable injury or harm would have
been more serious or more extensive than that caused; or

(b) the actual result involves the same kind of injury or harm as the probable result and is not
too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on
the gravity of his offense.
(4) When causing a particular result is a material element of an offense for which absolute
liability is imposed by law, the element is not established unless the actual result is a probable
consequence of the actor's conduct.
Baker v. Stateman challenges statute that did not require Ds intoxication cause resulting
death, but SC FL upheld it. Statute authorizes manslaughter conviction for Ds involved in fatal
accidents while driving drunk, but drunkenness doesnt have to actually cause the death.
Intervening Causes
Commonwealth v. Root (rejects proximate cause in criminal homicide;
intervening/supervening causes not sufficiently proximate)
Facts: Root (defendant) and another individual agreed to drag race at night on a rural
highway. The posted speed limit for the highway was 50 miles per hour. During the race,
the two men reached speeds in excess of 70 miles per hour. As the two men approached a
bridge in a no-passing zone, Root was in the lead and the other individual was directly
behind him. When the other man attempted to pass Root by driving into the opposite lane
of traffic he was struck and killed by an oncoming truck.
D was found guilty of involuntary manslaughter. D appealed.
Superior Court affirmed.
o Question: whether the defendants unlawful and reckless conduct was a sufficiently
direct cause of the death to warrant his being charged with criminal homicide?
o Involuntary manslaughter: (1) unlawful and reckless conduct that (2) directly
causes (3) death
o Pa argues for proximate cause.
o Jones
History of proximate cause in criminal cases
No rational basis for proximate cause in criminal liability
First applications connoted much more direct causal relation.
Todays use is too broad.
Application would extend criminal liability to situations not considered
to present a likelihood of death.
Commonwealth v. Levin: affirmed Ds conviction of involuntary
manslaughter. But facts are difference. In Levin Ds cutting in front of
the car was a direct cause of the fatality. Here, Ds conduct was a
result of the deceased driver.
Mautino v. Piercedale Supply Co: where a man sold a cartridge to a
person under 16, and the recipient procured gun and fired cartridge
injuring someone, injury was proximately caused by man who sold
cartridge. Ad absurdum: If proximate cause was criminal test, hed be
guilty of involuntary manslaughter.


Marchl v. Dowling & Co.: where a truck driver had double parked his
truck and the minor P was struck by a passing car when she walked
around the double parked truck, truck drivers employer was held
liable in tort for Ps injuries. Ad absurdum: If proximate cause was the
test in criminal law cases, the truck driver would be guilty of
involuntary manslaughter for double parking.
Even if proximate cause was applicable, Ds conviction for involuntary
manslaughter would not be sustained.
At trial, judge erroneously instructed jury that negligence or want of
care on the part of deceased is no defense.
Supervening cause
o Johnson v. Angretti: any negligence on the part of the bus driver
(who stopped to pick up a passenger) was not a proximate
cause of death of plaintiffs decedent since action was due to
intervening and superseding negligence of plaintiff.
o Here, decedent P recklessly chose to swerve his car bringing
about his own death.
Reversal. No proximate cause in criminal homicide prosecutions. Need more
direct causal connection.
Eagen (dissent)
Racing an automobile at 90 mph to prevent another automobile going in the
same direction from passing is unlawful and reckless.
There can be more than one direct cause of an unlawful death.
Here, but for the Ds speeding this accident would never have
occurred. He helped create, was a vital part of it, and victims acts
natural reaction to stimulus.
Majority argue this is accidental and fortuitous circumstance and would be
too harsh to impose criminal liability.
Eagan: not accidental or fortuitous unlikely to result in death its a
tendency under known circumstances
While victim contributed to his own death, he was not solely responsible.
Would affirm conviction of D.

4.08 Causation: Responsibility for Causing a Result
(1) Element of offense which requires D to have caused particular result established when
his conduct is antecedent but for which result would not have occurred and
a. If offense requires D intentionally/knowingly cause the result, that the actual result
as it occurred
i. Is within purpose/contemplation of D whether purpose/contemplation
extends to natural events/conduct of another
b. If offense requires that D recklessly/negligently cause result, that actual result as it
i. Is within risk of which D was/should have been aware, whether that risk
extends to natural events/conduct of another


D as intervening actor. Knocking someone out then (when they are still alive) throwing them
into a river, thus killing them by drowining. R. v. Churchjury acquits. Court of Criminal Appeal
says jury can still convict of murder.
Stephenson v. State (multiple sufficient causes)
Facts: Stephenson (defendant), with the aid of several others, abducted a woman he
knew socially, Madge Oberholzer, from her home in Indianapolis and took her on a
railroad train destined for Chicago. While on the train, Stephenson struck, bit, beat, and
attempted to rape Oberholzer. Stephenson, his chauffeur, and Oberholzer got off the train
in Hammond and drove to a motel. While in Hammond, Stephensons chauffeur took
Oberholzer to a store where she purchased a hat and then took her to a drug store where
she surreptitiously purchased six tablets of lethal bichloride mercury. When she was in
her hotel room, Oberholzer ingested the tablets in order to commit suicide, but instead
became violently ill. Stephenson had Oberholzer drink a bottle of milk and offered to take
her to the hospital but she refused. Stephenson then drove her back to Indianapolis.
Along the way, Oberholzer screamed for a doctor, but Stephenson refused to stop until
they got to his house. Shortly thereafter, Stephenson took Oberholzer to her parents
house and a physician was called to treat Oberholzer for poisoning. Over the course of
the following ten days, all of Oberholzers wounds healed except one which became
infected. Oberholzer subsequently died from the effects of her wounds inflicted, and
the poison taken. The medical cause of death was a combination of shock, loss of food
and rest, action of the poison and infection, and lack of early treatment, none of which
singularly caused Oberholzers death.
D found guilty of murder.
D appeals.
D argues evidence does not show that he is guilty of murder.
o O left hotel, purchased a hat and poison, voluntarily returned to the room, took the
o Since she took her own life by suicide (this was proximate cause), he own act was
an intervening responsible agent (not proximate cause) which broke the causal
connection between his acts and the death.
SC looks at precedent
o Rex v. Beech: Prosecutrix jumped out of window sustaining injuries. Questions:
Whether conduct of D constituted threat of causing injury? Whether jumping was
the natural consequence of Ds conduct? Whether grievous bodily injury was the
result of the conduct of the prisoner? Court remands for further proceedings. If
answered in affirmative, D would be guilty.
o Rex v. Valade: D induced young girl to have criminal sexual intercourse; she
jumped from window to street and was killed. D guilty of murder.
o O was entrapped by D, in his custody and absolute control.
o Taking poison four hours after attempted rape does not prevent it from being part
of the attempted rape. Should be treated as one transaction.
o Evidence sufficient and justified jury that D by his conduct caused O to be
distracted and mentally irresponsible and as a natural and probable consequence
D guilty for 2nd degree murder.


Persampieri v. Commonwealth: court upholds manslaughter conviction when wife emotionally

disturbed, drinking, and threatened suicide. Then husband where gun was, loaded it for her,
saw that the safety was off, and told her how to pull the trigger.
State v. Bier: court upholds negligent homicide conviction. Mans wife is intoxicated. He tries to
stop her from suicide, but gun discharges and shoots her. She dies 6 days later.
People v. Kevorkian (direct & natural result standard; assisted suicide not murder)
Facts: Sherry Miller and Marjorie Wantz, two older women suffering from medical
conditions which caused them great pain and/or was severely disabling, separately
requested physician Kevorkians (defendant) assistance in ending their lives. In a cabin,
Kevorkian planned to use his suicide machine to cause the deaths. The device
consisted of a board to which one arm was strapped to prevent movement, a needle
attached to IV tubing was inserted into the arm, and contained various chemicals that
would be released. Strings were tied to two fingers of the person intending to die. The
strings were attached to clips on the IV tubing that controlled the flow of the chemicals.
The person raised a hand releasing anesthesia and when she fell asleep, the hand would
fall, pulling the other string allowing the deadly chemicals to enter the bodys
bloodstream and causing death. Kevorkian unsuccessfully attempted to insert the needle
into Millers arm and hand. He then left the cabin and returned later with a cylinder of
carbon monoxide gas and a mask. Kevorkian instructed Miller on how to use the cylinder.
Miller released the carbon monoxide gas and breathed it in until she died. Kevorkian
then assisted Wantz by successfully inserting the needle into her arm. Wantz was then
able to use the device to release the chemicals causing her death.
Kevorkian was indicted on two counts of murder roughly a year before the state enacted
a statute prohibiting assisted suicide.
The circuit judge dismissed the indictment, concluding that assisting in suicide did not
fall within the crime of murder.
The court of appeals reversed.
Kevorkian appealed to the states supreme court.
SC Michigan looks at/evaluates precedent
o People v. Roberts: suicidal wife requests husband to provide poison. He does.
She takes it and died. D charged with murder. He pleads guilty. Trial court holds it
to be 1st degree murder. He appeals. Unsuccessful.
o Early decisionsmurder may be based on merely providing the means by which
another commits suicide.
o Modern decisionstreats assisted suicide as a separate crime, less onerous
penalties than for murder.
Distinction between active participation and involvement in the events
leading up to the suicide. A person may be prosecuted for murder if acts are
beyond conduct assisted suicide statute was intended to cover.
o People v. CleavesD charged with 1st degree murder in strangulation death of
another man (note: decedent wanted Ds assistance in the strangulation).
o In re Joseph G (courts says consistent with overwhelming trend of modern
authority)conviction of murder is proper if D participates in the final overt act
that causes death, such as firing gun, pushing the plunger on a hypothermic
needle. However, where D is involved merely in events leading up to the

commission of the final overt act, such as furnishing the means a conviction of
assisted suicide is proper.

o Common law: Murder is where a person of sound memory and discretion
unlawfully kills any reasonable creature in being, in peace of the state, with malice
prepense or aforethought, either express or implied.
D must perform an act that causes death of another
Criminal homicide requires proof that death occurred as a direct and
natural result of Ds act.
o People v. Cleaves (California)every person who deliberately aids, advises, or
encourages another to commit suicide is guilty of a felony.
Court overrules Roberts. Uses direct and natural result standard.
o D merely involved in events leading up to death proper charge is assisting in
o Remand.
Boyle (Dissent)
o A person who participates in the death of another its murder
o The facts show causation as a matter of law.
o Trial court is wrong, COA should be affirmed.
o Intended results of Ds acts materializes; they were causes in fact & proximate
causes. The majority creates a special causation standard (direct and natural
o These issues should be addressed by jury or Legislature, not by Court.

Washington v. Glucksbergpunishment of suicide assistance sufficiently rooted in

tradition/common law reflected in contemporary law so as not to violate due process.
Vacco v. Quillno violation of EPC in law that made aiding/attempting suicide illegal.
SEXUAL ASSAULT (*throughout you are accountable for MPC Article 210, Homicide
Appx B*)

Common law (Blackstone) defined rape: carnal knowledge of a woman forcibly and
against her will.
Typical common law-based statute would define rape as (1) sexual intercourse (2) by
means of force, (3) against the will of the woman and (4) without her consent.
o Act: sexual intercourse
o Circumstance: forcibly, against her will, without her consent
o CMS: awareness of sexual intercourse (?)

Focus on the act Resistance: CB 86580 (skip note 2 page 878), additional
handouts. *** Last names AL are responsible for the defense perspective; MZ are
responsible for the prosecution perspective ***
Utmost resistance
Traditional rule: to win a rape prosecution, state would have to prove very overt force.
o Stranger cases, fact finders more readily believe victims did not consent, stranger
was willing to achieve aim by violence
o Non-strangervictims resistance an indicator of the assailants force and victims

Question: what is the amount of resistence required of the complainant?

Brown v. State (utmost resistance standard)

Facts: Edna Nethery and Grant Brown (defendant) grew up together and were friends.
One day, Brown grabbed her in the field between their homes and they had sex. Nethery
alleged that Brown raped her. Nethery repeatedly testified at trial that she tried as hard
as [she] could to get away. She also testified that she only once requested that Brown let
her go. However, she did not testify about use of her hands or legs to try and physically
push or kick Brown away.
The trial court found Brown guilty of rape.
D (Brown) appealed.
D argues there was not sufficient evidence to satisfy any reasonable mind, beyond
reasonable doubt, of such resistance as the law requires.
o Rape is problematic because:
Ease of assertion of forcible accomplishment of sexual act
Impossibility of defense save by direct denial
Proneness of woman upon disgrace to minimize her fault
o To prove rape:
There must be entire absence of mental consent or assent
(Utmost) Resistance elementopposing force to force, not retreating from
force. There must be most vehement exercise of every physical power to
resist the penetration of her person
Exception: unconsciousness, threats, exhaustion
o The evidence:
She testifies she told him to let me go, inarticulate screams, no verbal
Court says in a rape, its inconceivable to be set on resistance, but do
nothing but escape or withdraw. Also no signs on rapists face, hands, or
People v. Dohring
Utmost resistance
o Resistance must be up to the point of being overpowered by actual force, or of
inability from loss of strength longer to resist (exhaustion), or from the number of
persons attacking resistance must be dangerous or absolutely useless (threats), or
there must be fear of duress or death (threats)
Reasonable or Earnest Resistance
Courts began reforming rape law to eliminate requirement of utmost resistance. They redefined
the required resistance as reasonable or earnest, and became more willing to accept
arguments of futility.
People v. Dorsey (reasonable resistance standard)
Facts: Dorsey (defendant) got onto an elevator with the victim and then stopped the
elevator in between floors. He told the victim to take her clothes off and when she did not
respond, he repeated his demand. The victim then did so and Dorsey proceeded to rape

her in the elevator. Dorsey did not use any force, nor make any express threats. The
victim testified that she did not scream because she did not think anyone would be able
to help her, or even hear her. Dorsey was 57 and over 200 pounds, whereas the victim
was only 5 and 130 pounds.
The jury found Dorsey guilty of rape, and he filed a motion to dismiss the verdict.
o Sufficiency of physical force or threats
Whether victim sustained a sufficient degree of fear either of death, serious
physical injury, or of being kidnapped?
o Sufficiency of resultant behavior and emotions of the victim
Was resistance of victim sufficient to indicate lack of consent?
Some courts require utmost resistance
NYs/CA new law uses reasonable resistanceresistance must be
such as might be expected from a woman in the victims
circumstances. The woman need not incur serious risk of death or
serious bodily injury.
o History
Many used reasonable.
Appellate Division-utmost
Legislature changed it to earnest resistance
resistance reasonably expected from person who
genuinely refuses to participate in sex under all
attendant circumstances.
As other states changed, NY fell in line with reasonable
Other courts use sufficient resistanceamount of resistance must
be sufficient to make non-consent reasonably manifest
Michigan/Ohioeliminate need to show any resistance as proof of
o Whether the defendant exerted physical force capable of overcoming this
complainants reasonable, earnest resistance?
P testified D did not use overt physical force, except necessary for
completion of intercourse.
Manipulating the elevator to stop between floors
Physical advantages D enjoyed
o Whether the complainant was overcome by fear of immediate death or serious
physical injury due to threat from the defendant
D argues never once threatened her expressly; no implied threat because D
had did not mention or display weapon.
Court finds no express threat, but there was definite implied threat from
which she was faced with immediate death or serious physical injury.
D was taller, outweighed her by 70 pounds; she was trapped in a
stalled elevator; he could force her to comply if she resisted; he might
have a weapon
Conclusion: there is sufficient trial evidence from which the jury could conclude BRD that
defendant engaged in sexual acts with the complainant by means of forcible compulsion
in that there was an implied threat creating fear of death or serious physical injury.

State v. Powell (the requirements of nonconsent and resistence)

Facts: Victim stands, D picks her up agreeing to bring her to her cousins place. He then
takes her to a secluded area, threatened to kill her when she refused intercourse. He
clapped her. He threatened to use a weapon. They both disrobe. They have intercourse.
Jury finds him guilty.
COA concedes there is sufficient evidence of nonconsent, but since there is no showing of
resistance, it ordered an acquittal.
o She did not make efforts to resist; She took her own pants off; She admitted to
never seeing the alleged weapon; She testified that he said he would not hurt her
Stoker (dissent)
o D threatened to kill her.
o Though she didnt say it, it is inferable that she believed resistance would not
prevent the rape.
o Acquittal would require rape victims to be faced with a dangerous weapon or resist
to the utmost and in both cases subject themselves to great physical harm or
Focus on the act - Force: CB 88092 *** Last names AL are responsible for
the prosecution perspective; MZ are responsible for the defense perspective ***
Forceeliminate resistance, elements become (1) force (2) non-consent
People v. Barnes (forceexpress and implied)
Facts: Marsha went to Barness (defendant) house late one night to buy marijuana.
Barnes met her outside and she stated that she did not want to come in, but just wanted
to pick up the drugs and leave. After a couple of minutes she agreed to come inside his
house. The two smoked some of the marijuana and afterwards, Barnes started to hug
Marsha and she pushed him away and told him to stop. Barnes continued his advances
and Marsha got up and went outside trying to leave. According to Marsha, at this point,
Barness behavior changed. He started to yell and curse at her for wanting to leave. Once
outside, Barnes acted like the front gate was locked. He continued to yell and several
times reared back as if he were going to hit her. He told her that he would let her leave
through the gate, but he had to go back inside to get his shoes. Marsha followed him, and
once inside again, Barnes continued to yell and said that Marsha was about the see his
bad side. Barnes generally acted like a psychotic person and when Marsha tried to
leave again, he pushed the door closed in front of her. When he asked her to take her
clothes off, she refused, and he responded by saying that she was going to make him
angry. At this point, Marsha feared for her safety and felt she would not be allowed to
leave so she began to play along and eventually engaged in sexual intercourse. Marsha
testified that she did so only because she thought that Barnes would become violent if
she did not.
The trial court convicted Barnes of rape.
Appellate court reversed.
o D argued evidence insufficient to sustain conviction of rape under 1980 amended
o COA used the pre-1980 standard. SC determines this was erroneous.
The prosecution appealed.


Question: Was COA correct in relying on a rape complainants lack of measurable

resistance to overturn convictions of rape and false imprisonment as unsupported
by sufficient evidence?
SC CA says no.
State argues rape.
D argues consent; she removed her clothes without being asked. She returned his
hugs and kisses.
The rape inquiry
Verbal/nonverbal threats?
Degree of force manifested?
Were her fears genuine and reasonably grounded?
There was evidence (via testimony) that there was force or fear of immediate
bodily injury.
He wouldnt stop his physical advances, even when she told him to
He cursed and berated her court finds this intimidating.
He reared backa gesture that suggested he would hit her.
He shouted, cursed, and slammed the door
He reared his muscles, grabbed her by the collar, claimed he could
pick her up and throw her out
Told her she was about to see the bad side of him
Jury could have reasonably concluded that her fear of physical violence was
genuine and reasonable if she did not submit to sexual intercourse.
Compliance was not consent.
Evidence was sufficient to sustain conviction of rape.

o Before 1980rape is an act of sexual intercourse under circumstances where the
person resists but where resistance is overcome by force or violence OR where a
person is prevented from resisting by threats of great and immediate bodily harm,
accompanied by apparent power of execution.
o 1980 Amendmentsan act of sexual intercourse accomplished with a person not
the spouse of the perpetrator under the following circumstances (2) where it is
accomplished against a persons will by means of force or fear of immediate and
unlawful bodily injury on a person or another.
Intent of legislature was to remove resistance element
Studies show presence of resistance may be probative on issue of force/nonconsent, but absence is not. Some women resist, others freeze; Over half sex
offenders become more violent in response to victim resistance;
Counterstudies suggest resistance may deter sexual assault
Court concludes its not clear what studies suggest. Legislature
unwilling to prescribe a response to sexual assault, resistance is a
personal choice. The new law eliminates presumption of falsity and
expectation that a victim must risk injury or death.

MPC 213.1. Rape and Related Offenses.

(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat of imminent death, serious bodily injury,
extreme pain or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs, intoxicants or other means for the
purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious
bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor
upon the occasion of the crime and had not previously permitted him sexual liberties, in which
cases the offense is a felony of the first degree.
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife
commits a felony of the third degree if:
(a) he compels her to submit by any threat that would prevent resistance by a woman of
ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her incapable of
appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or that she
submits because she mistakenly supposes that he is her husband.
Prior violence in sexual relationship
State v. Alston
State has to prove victim manifested lack of consent by unequivocal communication of
withdrawel of earlier consent (victim had sex with rapist in context of continuing sexual
relationship). This was satisfied when she said she didnt want to.
State also has to prove use/threat of force. Not satisfied. She didnt resist. He may have
used force earlier at school, but state must prove its related to his desire to have sex and
was sufficient to overcome will of victim.
Force and Consent
People v. JanssonD concedes he used force, but argues no indication complainant
advised/communicated to D she did not wish to engage in sex. D didnt know sex was
nonconsensual and could not have intended to engage in them by force/coercion. Court says
prosecution need not prove nonconsent as independent element according to statute.
Focus on CMS - Consent and culpable mental state: 89296 n.5; 898 n.10
906, 92329. *** Last names AL are responsible for the defense perspective; MZ
are responsible for the prosecution perspective ***
Nonconsentsome jurisdiction eliminate force as well as resistance and focus on
State v. Smith (nonconsent)
Facts: Smith (defendant) had a few drinks with T and invited her and her friend to
Smiths apartment to continue having fun together. The friend never arrived, so Smith
and T were alone in Smiths apartment. Smith then wrapped his arm around T while the
two sat on Smiths couch and made many unwanted sexual advances toward T. She kept
saying she did not want to have sex with Smith, but Smith was an imposing figure and T
could not get away. T finally gave into these sexual advances, believing that she would
get hurt if she did not have sex with Smith.
Smith was arrested and charged with first-degree sexual assault.
Smith was convicted.

Smith appealed, claiming that the evidence of Ts non-consent to the intercourse was
insufficient to warrant a conviction.
Smith argues
o Court should impose mens rea component (D must be found to have a guilty state
of mind)
D points out that British courts and Alaska must prove Ds actual awareness
of victims non-consent or Ds reckless disregard of victims non-consent.
Court rejects this because CT state law requires only general intent, not
specific intent. Mens rea will only be an issue if the crime requires specific
o Court should allow reasonable mistake-of-fact defense (D argues he thought she
consented to sex because she didnt resist and went along with it)
Court rejects this argument because the mistake of fact provision is
applicable only to specific intent crimes.
The court does endorse CAs allowance for jury instruction that D may not be
convicted if words/conduct of complainant would justify reasonable belief of
consent. This is not mistake of fact, but a reasonable persons
interpretation of the circumstances.
o Evidence is insufficient to prove a reasonable person would have believed Ts
conduct under the circumstances indicated nonconsent.
Court rejects this argument because she declined his advances, spat in his
face, tried kicking him off.
After he said hed make it hard, she could reasonably interpret that as a
threat, so compliance does not imply consent in that case.
o Sexual assault (1D) applies when a person compels another person to engage in
sexual intercourse by the use of force or by the threat of use of force which
reasonably causes the victim to fear physical injury
Compelleda finding that claimant had consented would implicitly negate
the claim (but is not an affirmative defense) that the actor had compelled the
complainant by force or threat to engage in sexual intercourse. Burden of
proof is on the state to show non-consent beyond a reasonable doubt.
o State of mind of the complainant
o What D should reasonably have known from observations of
victims conduct

People v. Dorseyearnest resistance requirement
NY changes to law
element in every rape/sex assault offense that sex act committed without consent of
victim. Lack of consent results from (a) forcible compulsion (b) incapacity to consent
2001legislature adds offense of rape in third degreelack of consent defined as
circumstances under which victim clearly expressed s/he did not want to engage in such
act + reasonable person in actors situation would have understood such words/acts as
lack of consent


People v. Dejourneynot abuse of discretion for trial court to admit expert testimony when
limited to why a person with disabilities would not seek out available third-party help.
State v. Babycourt says post penetration withdrawel of consent can if proved negate earlier
Lack of Affirmative Expression of Consent
In the interest of M.T.S. (physical forcelack of affirmative expression of consent;
penetration of victim without consent is sufficient physical force)
Facts: Defendant, a seventeen-year-old boy, was engaged in consensual kissing and heavy
petting with the alleged victim and during the encounter penetrated the girl without her
consent. There was no evidence that Defendant used any extra force or threats in order
to penetrate the alleged victim.
Trial court found Defendant guilty of sexual assault.
Appellate division reversed on the ground that non-consensual penetration, absent the
use of more force that that necessary to accomplish penetration, does not constitute
sexual assault.
New Jersey Supreme Court granted the States petition for certification.
Question: Whether the element of physical force is met simply by an act of nonconsensual penetration involving no more force than necessary to accomplish that result?
o NJ Code of Criminal Justice: A person who commits an act of sexual penetration
using physical force or coercion is guilty of second degree sexual assault.
o What does physical force mean?
Trial Courtphysical force established by penetration of victim without
Appellate Divisionstatute requires some force more than necessary to
accomplish penetration
Statephysical force is any involuntary sexual touching
PDphysical force is force used to overcome lack of consent (force =
Current judicial practiceany degree of physical power or strength used
against the victim, even though it entails no injury and leaves no mark
Websters Third
Power, violence, compulsion, or constraint exerted against person
Exercise of strength/power to overcome resistance
Strength/power without justification or contrary to law
Traditional law(1)force used (2) penetration against womans will
Brief history of rape law
o Traditional law(1)force used (2) penetration against womans will; woman must
resist to the uttermost
o 1960s NJa woman must resist as much as she possibly can under the
circumstances; rape is force sufficient to overcome any resistance put up by the
female (State v. Terry)
o NJ Code of Criminal Justicesexual assault is commission of sexual penetration
with another person with use of physical force or coercion.
o The consent issue
Critics of rape lawfocus should be shifted from victims behavior to Ds

Some reformersrape is unconsented to intercourse

Otherseliminate consent from definition of rape
All reformers want burden of non-consent not to fall on victim
o The force issue
Tradition failed to acknowledge that force may simply be an invasion of
bodily integrity.
Reformers sought abandon resistance; sought to break connection between
force and resistance
Legislatures intent
o Legislature placed emphasis on assaultive nature of the crime (made sexual assault
more like assault and battery)
o Victim no longer required to resist or express non-consent; victim is not on trial so
her response is immaterial.
o Court concludes in light of these intents, PDs interpretation of physical force is
inconsistent with legislative purpose to eliminate consideration of victims
resistance or expressed non-consent.
SC NJ concludes that states/trial courts definition is correctphysical force in excess of
that required for penetration is not required.

Wisconsinconsent means words/overt actions by a person who is competent to give informed

consent indicating a freely given agreement to have sex relations/contact.
What is the difference between mistake of fact and reasonable belief of consent?
Mens Rea
Commonwealth v. Fischer (mistake of factnot applicable)
Facts: Fischer (defendant), an 18-year-old college freshman, was charged with
involuntary deviate sexual intercourse (IDSI) against another female student at the same
o Fischer and the victim testified that they were in Fischers dorm room two hours
prior to the incident and engaged in kissing and fondling and eventually sex.
Afterward, the pair separated and went to the dining hall to meet their respective
friends. Fischer and the victim met up later and were again in Fischers dorm
o From that point, the testimony of Fischer and the victim diverged.
The victim testified that Fischer locked his dorm room door, pushed her onto
his bed, straddled her, held her wrists above her head, and forced his penis
into her mouth. The victim testified that she repeatedly told Fischer she did
not want to have sex and was only able to get away when she struck him in
the groin with her knee.
Fischer, on the other hand, testified that as they entered his dorm room, the
victim told him she wanted to have a quick one and they engaged in the
same behavior as during their previous encounter. Fischer admitted to
holding her arms above her head, but said that as soon she stated she did
not want to have sex, he stopped. When Fischer attempted to go further
again, the victim became upset and left the room. Medical personnel


testified to treating the victim on the night in question and several of the
victims friends testified that she looked shaken and upset.
Trial court convicted Fischer on all counts.
Fischer appealed with new counsel, arguing that trial counsel provided ineffective
assistance in failing to request a jury charge on the defense of mistake of fact.
Superior Court of PA affirms.
o D argues that he did not believe his actions were taken without her consent. He
says reasonableness must be taken in light of his limited experience and victims
initially aggressive behavior.
o State argues under Commonwealth v. Williams D was not entitled to instruction he
is now requesting.
Commonwealth v. Williams
D wanted instruction that if D reasonably believed that victim
consented to sexual advances then it would constitute a defense to
rape and involuntary deviate sexual intercourse charge.
Court rejects this. Its not the law. Changing it is the province of the
o D counters: (1) stranger rape context of Williams is different than the intimate
context here (2) rape and sexual assault law has changed and necessitates mistake
of fact instruction for a fair trial.
The court reviews judicial precedent and legislative response
Commonwealth v. RhodesThe Rhodes court included moral,
psychological, or intellectual force
Commonwealth v. Mlinarichthreatening to send a girl home or sex
was found to be insufficient to be forcible compulsion. Girl made the
choice, not involuntary.
Commonwealth v. Berkowitzgirl said no repeatedly but did not leave
even though D was not restraining her; Court says forcible compulsion
is more than lack of consent and reversed Ds rape conviction.
Legislature later defines forcible compulsion to include physical,
intellectual, moral, emotional, psychological force that is express or
D argues that to consider force without considering Ds state of mind is
unfair. Need mistake of fact jury instruction.
PA statute recognizes mistake of factignorance/mistake as to matter
of fact for which there is reasonable explanation/excuse is defense if
ignorance/mistake negatives intent, knowledge, belief, recklessness,
or negligence required to establish a material element of offense OR
law provides that state of mind established by such ignorance/mistake
constitutes a defense.
Court notes NJ SCif there is evidence to suggest D reasonably
believed permission had been given, State must demonstrate either D
did not actually believe affirmative permission had been freely-given
or belief was unreasonable
In the interest of MTR, State v. Smith, People v. Mayberry recognizes
sexual assault may be defended by reasonable belief of consent
Subcommittee Notes leans toward allowing it.

However, court cannot adopt principle because of Williams, which

says this is the province of the legislature to change.
Courts conclusion
Williams logic depended on limits on judicial authority that still apply. Ds
argument is rejected.
Though there is a change in the law, this case is not a new type of sexual
assault, so Williams still applies.
Its not possible to find that counsels failure to argue for a change of law
constituted ineffectiveness. Court cant simply announce a new rule and find
counsel ineffective for failing to predict the new rule.

Evidentiary and statutory reforms in focus: CB 93042, 896 n.8898
n.9, additional handouts.
Susan Estrichadvocates eliminating force element and conditioning rape liability on nonconsent plus negligence. Shifting legal focus to Ds mens rea would benefit rape victims.
Lynn Henderson
American courts dont ignore mens rea
Shifting attention to Ds mental state about consent and reducing the mens rea
requirement to negligence will not relieve the victims burden of physical resistance and
having to prove rape.
o Returns us to 19th century
o Proving mens rea will require focusing on woman and her credibility
David Brydenunlikely focus on Ds mens rea or mistake will make a difference in
jurisdictions that retain force resistance rule. Mistake is not helpful because it concedes the
woman did not consent. It might be helpful if the standard was Ds subjective intent, but the
standard is what a reasonable person would have believed.
Evidentiary reforms
Cautionary instruction
Sir Matthew Hale: Rape is a detestable crime, should by severely and impartially
punished; But it is an accusation easily made, hard to prove, and harder to be defended
Corroboration and prompt complaint rules
Davis v. State: victim was a sickly woman who could not resist, Court says rule is that
there must be (1) concurrent circumstances that tend to corroborate the accusation and
(2) she must have told of the injury promptly.
State v. Anderson: father convicted of incest on his daughter. Higher court reversed
based upon State v. Connelly (a female upon whom the crime has been committed will
make immediate complaint) because daughter had regular intercourse over five years.
7 Wigmore, Evidence AND Glanville Williams AND Karl Manninger AND Torrey: sexual
assault cases particularly subject to deliberately false charges; this may result out of
Modern rules
o PA Criminal Code
Prompt complaint not required

Testimony of complainant need not be corroborated

Complainants sexual history

Well into 20th century, Ds allowed to cross-examine victims about sexual history
People v. Abbott: clergyman appeals rape conviction on ground that trial court forbade
him to question complainant about her sexual history. Higher court thought it was
Packineau v. United States: man accused of raping a young woman during an evening of
socializing and drinking sought to introduce sexual history evidence. Court thinks that
sexual history evidence would give a more balanced perspective.
Rape-shield laws
These laws ban sexual history evidence because it (1) promotes inference only chaste
women deserve protection of rape laws and (2) reinforces notion that past consent to sex
necessarily implies consent on the occasion being prosecuted.
Federal Rules of Evidence provides exceptions:
o When there is evidence she was sleeping with someone else at the same time (it
wasnt me defense)
o She had sexual history with D (to prove consent)
o Specific instances of sexual behavior where exclusion would violate constitutional
rights of D
State v. Rackliffe
o Facts: Man charged with gross sex assault with another man. Court held trial court
properly denied sexual orientation history evidence.
o Maine Rule basically follows Federal rule. D argued sexual orientation was outside
scope of rape shield law. Court says sexual orientation is irrelevant to the question
of consent.
Michelle Anderson [From Chastity Requirement to Sexuality License]
o Majority states follow Federal Rules
o Minority states
Grant judges discretion to:
create exceptions
permit sexual history (credibility, not consent)
exceptions to protect Ds constitutional ruights
U.S. v. Kelly: court adds exception for evidence of past sexual conduct with third parties
when it establishes a pattern of sexual activity.
o Anderson: prejudicially infers general pattern of promiscuous consensual sex from
behavior that doesnt support that inference
Constitutional rights exception
o Sixth Amendment
Compulsory process clauseright to present exculpatory evidence
Confrontation clauseright to cross-examine and rebut accusers
State v. Colbath: D charged with taping a woman after meeting her in a bar. He sought to
have evidence introduced that complainant engaged in aggressively sexual behavior
toward men in the bar. Court ruled that Ds 6th Amendment rights trump rape shield law.
o Andersonexceptions have been so broadly construed as to significantly nullify the
goals of rape shield laws.

Assessing rape law reform

Study shows weak evidence of great change in terms of conviction/incarceration or rape
Ds generally.
Report finds that attitudes about womens sexual autonomy changed between 1992 and
1997 in the direction of recognizing rape claims.
Prison rape
Bureau of Labor Statistics: 4.4% prison inmates, 3.1% jail inmates reported experiencing
one or more incidents of sexual victimization by inmate or facility staff in past 12 months.
o Sexual victimizationsincludes consensual activity forbidden by prison rules
o 15K prison inmates and 6K jail inmates reported nonconsensual sex acts by other
o 35K prison and 11K jail reported unwilling activity with staff
o Females more victimized by inmates than males, though less victimization by staff
o Homosexuals more frequently victims
o High number occur within 24 hours of admission, high number between 6PM and
Traditionally sanctions for perpetrators have been lax/nonexistent
2003 Congress passed Prison Rape Elimination Act providing grants to implement
programs to prevent sexual abuse.
Marital immunity doctrine and decline
Common lawno man could be charged with raping his own wife
American history rape statutes also created express immunity in marital context or were
construed to follow common law
Trend in American law is to limit this immunity by either legislative repeal or
constitutional challenges to immunity on equal protection grounds.
People v. Liberta reviewed rational for marital immunity, held them to be unsound.
o Treatise on Criminal Law of the State of NYa man could not be guilty of raping
his wife
o Lord Halehusband cannot be guilty of rape upon his lawful wife (matrimonial
consent creates an unretract-able contract)
o Commonwealth v. Fogerty & People v. Melicourt cases that recognize the marital
immunity doctrine
o Liberta court holds there is no rational basis for distinguishing between marital
and non-marital rape.
Lord Hales notion is untenable because it implies consent.
Common law justification: woman was property of her husband; this has
been long rejected in NY
Other arguments
Marital exemption protects against gov. intrusion into marital privacy
o Forcible rape does not promote this interest.
o This right protects consensual acts, not non-consensual acts
Promotes reconciliation of spouses
o Forcible rape does not promote this interest. If you have to rape
your wife, there is probably nothing to reconcile.
Eliminating exemption would be disruptive to marriages.
o Its raping your wife that disrupts the marriage.

Marital rape would be difficult to prove

o Its the consent thats hard to prove.
Marital rape might lead to fabricated complaints
o Wives no more likely to fabricate complaints than non-wives
A majority of state have repeal/restricted the marital exemption.
o Abolition
o Making sexual assault between spouses a crime of intermediate severity
o Removing immunity when spouses living apart or legally separated

HOMICIDE (*throughout you are accountable for MPC Article 210, Homicide Appx

Intentional killings

Introduction and intentional murder: CB 32540 (at 32739 concentrate on California,
Pennsylvania, MPC, and New York; treat others as deep background); 34146.

Common lawtwo broad categories of homicide

o Murderkilling of on human being by another with malice aforethought
Malice aforethoughtnot necessarily premeditation
Maliceintention to cause, willingness to undertake, a serious risk of
causing the death of another, when that intent or willingness is based on an
immoral or unworthy aim
o Manslaughterunlawful killing without malice
Definition and elements of murder
o Unjustified killing with
Purpose to cause death OR
Intent to inflict serious bodily harm OR
Extreme recklessness with respect to a serious risk of harm to anothers life,
where the risky action manifests so unworthy or immoral a purpose as to
suggest callous indifference to human life OR
felony murder rulea willingness to undertake even a very small risk of
death in committing a serious felony
Degrees of murder
o First degree
Intentional and premeditated OR
A killing that occurs during the course of one of several major felonies
(robbery, burglary, rape, or arson)
o Second degree
o The significance of degree is in punishment.
Traditionally only first-degree murder was capitally punishable
First-degree murder is punished by a very long prison sentence (20
years or more) or a life sentence (with/without parole)
Second-degree murder is a term of years in prison, usually in the
range of 5 to 15 years.
Death penaltygenerally the only crime for which the death penalty is
possible is first-degree murder with additional aggravating

circumstances and where first-degree murder is prosecuted as capital

Manslaughter is homicide without malice.
o Voluntary manslaughterintentional killing that lack malice because killer acted
either in heat of passion after adequate provocation OR acted in honest but
unreasonable belief that the killing was necessary for self-defense
o Involuntary manslaughterkilling committed recklessly or negligently
Some states
Reckless manslaughter
Negligent homicide
Other states
Vehicular manslaughter
Misdemeanor manslaughter ruleinvoluntary manslaughter to
cause death by risking fatal harm where the underlying act
establishes guilt of some misdemeanor

Murderunlawful killing of human being with malice aforethought
o Expressmanifested, deliberate intention unlawfully to take life of another
o Impliedwhen no provocation appears OR when circumstances show abandoned
and malignant heart
o First-degree
Destructive device, explosive, weapon of mass destruction, armor piercing
ammunition, poison, lying in wait, torture
Willful, deliberate, premeditated
Committed in perpetration or attempt to perpetrate [arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, sexual assault
against minor
Murder perpetrated by means of discharging firearm from motor vehicle
Gross vehicular manslaughter while intoxicated
o Unlawful killing of person without malice aforethought in driving of vehicle where
driving was in violation of drunk-driving laws and killing was either
Proximate result of unlawful act not a felony with gross negligence OR
Proximate result of lawful act which might produce death in unlawful
manner and with gross negligence
o Imprisonment for 4, 6, or 10 years
o Does not preclude murder if wantonness or disregard of life
Manslaughter (voluntary, involuntary, vehicular)
o Manslaughterunlawful killing of person without malice
Voluntaryupon sudden quarrel or heat of passion
Involuntaryin commission of unlawful act not a felony OR lawful act in
unlawful manner (or without due caution and circumspection)
Under Gross Vehicular Manslaughter OR [jail not more than 1 year,
imprisonment for 2, 4, or 6 years]
Conduct under that section BUT without gross negligence [not more
than 1 year in jail]

o First-degreeintentional killing
o Second-degreeD engaged as principal or accomplice in perpetration of a felony
[punishable by life in prison]
o Third-degreeall other kinds [up to 20 years in prison]
o Definitions
Intentional killingkilling by means of poison, lying in wait, or by other kind
of willful, deliberate, and premeditated killing
Perpetration of felonyact of D engaging in, being accomplice to, attempt
to, flight after committing or attempting to commit: robbery, rape, deviate
sexual intercourse by force or threat of force, arson, burglary, kidnapping
Voluntary Manslaughter
o Unlawful killing of another when acting under sudden and intense passion from
serious provocation by (1) person killed OR (2) another whom actor endeavors to
kill, but negligently/accidentally causes death of the person killed.
o Punishable by up to 10 years in prison.
Involuntary Manslaughter
o Causes death of another person as a direct result of doing unlawful act in reckless
or grossly negligent manner OR doing lawful act in reckless or grossly negligent
o Punishable by maximum of 5 years in prison.
Drug delivery resulting in death
o Person intentionally administers, dispenses, delivers, gives, prescribes, sells, or
distributes any controlled substance or counterfeit controlled substance in
violation of the Controlled Substance Act and another person dies as a result of
using the substance
o Term of imprisonment not more than 40 years.
Model Penal Code
o Criminal homicide committed
Purposely or knowingly OR
o 1 degree felony, punishable by imprisonment or capital punishment
o Criminal homicide committed
Recklessly OR
Under influence of extreme mental or emotional disturbance for which there
is a reasonable explanation or excuse
o 2 degree felony, minimum punishment of 1-3 years in prison; maximum sentence
of 10 years
Negligent Homicide
o Criminal homicide committed
o Third-degree felony; 1-2 year minimum sentence; maximum sentence of 5 years in
New York

Criminally Negligent Homicide

o Causes death of another person, criminally negligent
o Punishable by term of up to 4 years in prison
Vehicular Manslaughter in the Second Degree
o Causes death of another person and either
Operates motor vehicle in violation of intoxication/under the influence OR
Operates a motor vehicle with a gross vehivle weight rating of more than
eighteen thousand pounds which contains flammable gas, radioactive
materials or explosives
o Punishable by up to 7 years in prison
Manslaughter in the Second Degree
o Recklessly causes death of another
o Punishable by up to 10 years in prison
Manslaughter in the First Degree
o Causes death of another (person or third person), intent to cause serious physical
injury to a person OR
o Causes death of another (person or third person), intends to cause death, BUT
circumstances do not constitute murder because under influence of extreme
emotional disturbance OR
o Eighteen old or more with intent to cause physical injury to person less than eleven
years old, D recklessly engages in conduct that creates grave risk of serious
physical injury and results in death
o Punishable by up to 25 years in prison
Murder in the Second Degree
o Intent to cause death of another; causes death of such person or third person OR
Affirmative defenseD under influence of extreme emotional disturbance,
reasonable explanation/excuse
o Depraved indifference, recklessly engages in conduct which creates grave risk of
death to another, causes death OR
o Acting alone or with one or more persons, he commits or attempts to commit
[robbery, burglary, kidnapping, arson, rape in first-degree, criminal sexual act in
first degree, sexual abuse in first-degree, aggravated sexual abuse, escape in firstdegree, escape in second-degree] AND in furtherance or flight from crime, causes
death of person other than one of the participants OR
Affirmative defenses
Did not commit the homicidal act AND
Was not armed with a deadly weapon AND
No reason to believe another was armed with weapon AND
No reasonable ground to believe other participant intended to engage
in conduct likely to result in death/serious physical injury
o Depraved indifference, 18 years old or more, D recklessly engages in conduct
which creates grave risk of serious physical injury/death to another less than
eleven, and causes death
o Punishable by minimum of 15-25 years in prison, up to life in prison
Murder in the First Degree
o Intent to cause death of another, causes death of such person or third person AND
Intended victim was police OR
Intended victim was peace officer OR
Intended victim was employee of state/local correctional institution OR

At time of killing, D was confined in state correctional institution [under a

life sentence] OR
Intended victim was witness to crime committed on a prior occasion and
death caused to prevent witness testimony OR victim previously testified
and killing caused to exact retribution OR
Killing pursuant to agreement with person other than intended victim for
receipt OR
Victim killed while D in course of committing or attempting to commit
[robbery, burglary, kidnapping, arson, rape in first-degree, criminal sexual
act in first degree, sexual abuse in first-degree, aggravated sexual abuse,
escape in first-degree, escape in second-degree] OR in course of and
furtherance of flight after committing or attempting to commit crime OR in
course of and furtherance of immediate flight after attempting murder in
second degree OR
UNLESS victim participated in aforementioned crimes
As part of the same criminal transaction, D causes death of additional
person/persons OR
UNLESS victim participated in crime
Prior to killing D convicted of murder under section (this or another
jurisdiction) OR
D acted cruel and wanton before victims death OR
D intentionally caused death of two or more additional persons in separate
criminal transactions within period of 24 months OR
Victim a judge
AND Victim 18 years old at time of crime
Affirmative defenses
D acted under influence of extreme emotional disturbance for which there
was a reasonable explanation or excuse


Intentional Homicide
Intentional murder (second degree)
Francis v. Franklin (Malice MurderIntentional murder, Second degree murder;
burden of persuasion is on prosecution to prove BRD elements, specifically here,
Franklin (defendant), a prisoner, escaped from custody while receiving treatment at a
dentists office after seizing a pistol from an officer who was guarding him. Taking a
dental assistant with him as a hostage, Franklin fled from the office and attempted to
obtain an automobile to use in his flight. Franklin first approached a local resident, but
did not object when the resident said that he did not own a car. Franklin then knocked on
the front door of Collies home and, when Collie came to the door, demanded the keys to
Collies car. When Collie slammed the door, two shots from Franklins gun went off, the
first killing Collie and the second going through the door and into ceiling of the house.
Franklin made no attempt to stop the dental assistant from escaping shortly thereafter,
nor did he make any effort to stop Collies wife and daughter when they fled after
refusing to give Franklin the car keys. Upon being recaptured, Franklin admitted
shooting Collie but stated that the shots went off accidentally after Collie slammed the

Franklin was charged with malice murder and tried in the Superior Court of Bibb County,
o Franklins only defense was that he lacked the intent to kill required for malice
Franklin offered circumstantial evidence to support this argument, including
the slamming of the door, the path of the second bullet, his statement on
being recaptured, and the fact that he did not use force against any of the
other people he met in the course of his flight.
o The trial judges instructions to the jury on the issue of intent included a
presumption that the act of a person of sound mind is the product of the persons
will, a further presumption that such a person intends the natural and probable
consequences of his actions, and a qualification that these presumptions were
rebuttable. The judge also stated that a person was not to be presumed to be
acting with criminal intent and that the prosecution had to prove every element of
the offense beyond a reasonable doubt.
D was convicted at trial.
Ds appeal to the Supreme Court of Georgia was denied.
Question: whether reasonable juror could have understood the jury instructions as a
mandatory presumption that shifted to D the burden of persuasion on element of intent
once state proved predicate acts?
The United States Supreme Court granted certiorari.
o Ds appeal is based on the judges jury instructions. He argues its unconstitutional
because it undermines factfinders responsibility at trial based on evidence to find
ultimate facts beyond a reasonable doubt.
Sandtrom v. Montana
Jury charge The law presumes that a person intends the ordinary
consequences of his voluntary acts.
Sandstrom created an irrebuttable, mandatory presumption which
SCOTUS found to be unconstitutional because it relieves State of
burden of persuasion by removing presumed element from case
entirely if State proves predicate facts.
Jury charge here (presume acts product of will, presume intended
consequences) creates a mandatory rebuttable presumption that relieves
State of affirmative burden of persuasion on presumed element by
instructing jury it must find presumed element unless D persuades jury not
to make such finding. It is no less unconstitutional.
Court: Shifting of burden of persuasion with respect to a fact is
impermissible under Due Process Clause.
State argues sufficient clarifying language exists in this case.
Earlier version of charge: jurors instructed that D was presumed
innocent and state required to prove every element beyond a
reasonable doubt
Sentence after challenged portion of charge is helpful a person will
not be presumed to act with criminal intention
o Reasonable juror could have (wrongly) thought that proof of firing gun and its
ordinary consequences constituted proof of intent beyond a reasonable doubt
unless D persuaded jury otherwise.

Reverse for D on bad jury instruction.

MPC Section 210.2. Murder.

(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are presumed if the actor is engaged
or is an accomplice in the commission of, or an attempt to commit, or flight after committing
or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of
force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to
death, as provided in Section 210.6].
MPC [Section 210.6. Sentence of Death for Murder; Further Proceedings to Determine
(1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall
impose sentence for a felony of the first degree if it is satisfied that:
(a) none of the aggravating circumstances enumerated in Subsection (3) of this Section was
established by the evidence at the trial or will be established if further proceedings are
initiated under Subsection (2) of this Section; or
(b) substantial mitigating circumstances, established by the evidence at the trial, call for
leniency; or
(c) the defendant, with the consent of the prosecuting attorney and the approval of the Court,
pleaded guilty to murder as a felony of the first degree; or
(d) the defendant was under 18 years of age at the time of the commission of the crime; or
(e) the defendant's physical or mental condition calls for leniency; or
(f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt
respecting the defendant's guilt.
(2) Determination by Court or by Court and Jury. Unless the Court imposes sentence under
Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the
defendant should be sentenced for a felony of the first degree or sentenced to death. The
proceeding shall be conducted before the Court alone if the defendant was convicted by a Court
sitting without a jury or upon his plea of guilty or if the prosecuting attorney and the defendant
waive a jury with respect to sentence. In other cases it shall be conducted before the Court
sitting with the jury which determined the defendant's guilt or, if the Court for good cause
shown discharges that jury, with a new jury empanelled for the purpose.
In the proceeding, evidence may be presented as to any matter that the Court deems relevant
to sentence, including but not limited to the nature and circumstances of the crime, the
defendant's character, background, history, mental and physical condition and any of the
aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section.
Any such evidence, not legally privileged, which the Court deems to have probative force, may
be received, regardless of its admissibility under the exclusionary rules of evidence, provided
that the defendant's counsel is accorded a fair opportunity to rebut such evidence. The
prosecuting attorney and the defendant or his counsel shall be permitted to present argument
for or against sentence of death.
The determination whether sentence of death shall be imposed shall be in the discretion of the
Court, except that when the proceeding is conducted before the Court sitting with a jury, the

Court shall not impose sentence of death unless it submits to the jury the issue whether the
defendant should be sentenced to death or to imprisonment and the jury returns a verdict that
the sentence should be death. If the jury is unable to reach a unanimous verdict, the Court
shall dismiss the jury and impose sentence for a felony of the first degree.
The Court, in exercising its discretion as to sentence, and the jury, in determining upon its
verdict, shall take into account the aggravating and mitigating circumstances enumerated in
Subsections (3) and (4) and any other facts that it deems relevant, but it shall not impose or
recommend sentence of death unless it finds one of the aggravating circumstances enumerated
in Subsection (3) and further finds that there are no mitigating circumstances sufficiently
substantial to call for leniency. When the issue is submitted to the jury, the Court shall so
instruct and also shall inform the jury of the nature of the sentence of imprisonment that may
be imposed, including its implication with respect to possible release upon parole, if the jury
verdict is against sentence of death.
Alternative formulation of Subsection (2):
(2) Determination by Court. Unless the Court imposes sentence under Subsection (1) of this
Section, it shall conduct a separate proceeding to determine whether the defendant should be
sentenced for a felony of the first degree or sentenced to death. In the proceeding, the Court,
in accordance with Section 7.07, shall consider the report of the pre-sentence investigation and,
if a psychiatric examination has been ordered, the report of such examination. In addition,
evidence may be presented as to any matter that the Court deems relevant to sentence,
including but not limited to the nature and circumstances of the crime, the defendant's
character, background, history, mental and physical condition and any of the aggravating or
mitigating circumstances enumerated in Subsections (3) and (4) of this Section. Any such
evidence, not legally privileged, which the Court deems to have probative force, may be
received, regardless of its admissibility under the exclusionary rules of evidence, provided that
the defendant's counsel is accorded a fair opportunity to rebut such evidence. The prosecuting
attorney and the defendant or his counsel shall be permitted to present argument for or against
sentence of death.
The determination whether sentence of death shall be imposed shall be in the discretion of the
Court. In exercising such discretion, the Court shall take into account the aggravating and
mitigating circumstances enumerated in Subsections (3) and (4) and any other facts that it
deems relevant but shall not impose sentence of death unless it finds one of the aggravating
circumstances enumerated in Subsection (3) and further finds that there are no mitigating
circumstances sufficiently substantial to call for leniency.
(3) Aggravating Circumstances.
(a) The murder was committed by a convict under sentence of imprisonment.
(b) The defendant was previously convicted of another murder or of a felony involving the use
or threat of violence to the person.
(c) At the time the murder was committed the defendant also committed another murder.
(d) The defendant knowingly created a great risk of death to many persons.
(e) The murder was committed while the defendant was engaged or was an accomplice in the
commission of, or an attempt to commit, or flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, or
(f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from lawful custody.
(g) The murder was committed for pecuniary gain.

(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(4) Mitigating Circumstances.
(a) The defendant has no significant history of prior criminal activity.
(b) The murder was committed while the defendant was under the influence of extreme
mental or emotional disturbance.
(c) The victim was a participant in the defendant's homicidal conduct or consented to the
homicidal act.
(d) The murder was committed under circumstances which the defendant believed to provide
a moral justification or extenuation for his conduct.
(e) The defendant was an accomplice in a murder committed by another person and his
participation in the homicidal act was relatively minor.
(f) The defendant acted under duress or under the domination of another person.
(g) At the time of the murder, the capacity of the defendant to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect or intoxication.
(h) The youth of the defendant at the time of the crime.]
Meaning of intent
Lloyd Weinrebintent is not motive; circumstances that give rise to intent may mitigate
culpability but law does not distinguish between benevolent motive and other intentional
MPCpurposeful or knowing homicide refers to actors state of mind. Not enough to find D
purposefully/knowingly did something which would naturally/probably result in death D must
engage in conduct with conscious objective of causing death of another/with awareness death
of another was practically certain to result from his act.
State v. MyersNebraska SC ruled to establish second-degree murder, jury had to find intent to
kill and malice.
State v. Burlisonfour years later, court reversed itself and held malice was surplusage.
Presumption of intent
Jack KatzPeople who kill do not necessarily intend to kill. Its sometimes impulsive.
Transferred intent
G purposely shoots to kill Smith but misses and kills Johnson.
He is guilty due to legal fiction that his intent to kill S transferred to unintended killing of
People v. Scottreaffirms transferred intent. D guilty of intentional killing of victim and
attempt on target
Anthony Dilloftransferred intent doctrine is inconsistent with tort principle that duty
runs to individuals, not world at large; better to rest liability on recklessness

Premeditation: CB 346357.

Premeditated Murder (First Degree)

United States v. Watson (the requirement of premeditation and deliberation)

Two police officers saw Watson (defendant) driving a stolen car and ordered him to stop.
Watson jumped out of the car and, with Officer Lunning in pursuit with his gun drawn,
ran into an apartment where three girls were doing their homework. Watson asked to use
the phone, dialed a number, and asked the other party [Are] they still out there?
Lunning entered the apartment with gun drawn, placed Watson under arrest, and
threatened to kill Watson when Watson objected to being put in handcuffs. Watson then
initiated a struggle with Lunning, during which Lunnings gun fell to the floor. When
Watson eventually succeeded in holding Lunning down, Lunning said [i]t wasnt worth
it. After Watson took the gun and held it against Lunnings chest, the officer repeated
the same words. Two of the girls who had fled heard a shot shortly thereafter, and one of
them saw Watson leaving the apartment with the officers gun in his hand, followed by
Lunning, who collapsed and subsequently died. Watson was arrested at the scene.
D charged with first degree murder.
D was convicted, and the trial court denied his motion for acquittal notwithstanding the
D appealed the denial of the motion to the District of Columbia Court of Appeals. DC COA
o D argues insufficient evidence of premeditation and deliberation.
In absence of eyewitness testimony, jury left to speculate on whether
officers remarks had any impact on Ds thought process.
Courteyewitness testimony is not required; circumstantial evidence
will suffice.
Like appellant in Bostic he acted in fear, panic, and self-defense. He says
officer threatened to shoot Ds head off and later tried to grab his gun.
Court-evidence of attempt to grab gun not inevidence. Juror could
reasonably infer that totality of circumstances cast doubt on Ds claim
he fired out of fear, in panic, or self-defense
Court says its not panic because it was a single controlled shot + D
had motive to escape. Reasonable juror could conclude D did not
shoot in panic but acted with deliberationhe decided and reflected
on decision before shooting,
o Rules
1st degree murdercalculated, planned killingmust prove premeditation
and deliberation
Premeditationgovernment must show that D gave thought before
acting to the idea of taking a human life and reached a definite
decision to kill.
Deliberationgovernment must prove accused acted with
consideration and reflection upon the preconceived design to kill;
turning it over in the mind, giving it a second thought
o Not in heat of passion, impulsive, nor orgy of frenzied activity
o Bostic v. U.S.some appreciable time must lapse between
formation of design to kill and actual execution to establish
reflection and consideration amounts to deliberation
2nd degree murderunplanned, impulsive killing
o Courts Analysis

When D sat at table, made call, he was anticipating officers arrival

and planning how to escape. He knew officer had drawn gun, and
juror could infer that D realized he would have to disarm the officer to
There was a struggle. When officer said it wasnt worth it, D
grabbed gun, officer was pleading for his life or at least suggesting
that avoiding arrest was not worth assaulting an officer. Nothing
blocking escape. Reasonable juror could infer D made decision to kill
the officer.
Officer had time to repeat it wasnt worth it. Reasonable juror could
infer that second plea was asking D to reconsider. D had sufficient
time to and did reaffirm his decision to kill the officer.
o Two pauses
S immobilized officer
Officer repeated his plea

State v. BinhgamD strangled mentally retarded woman to death. Prosecution says holding
victims wind pipe for three minutes=premeditation. WA SC reverses premeditation verdict;
says jury cannot infer deliberation from length of time.
People v. AndersonD was drinking and inflicted frenzied assault on 10-year old girl stabbing
her 60 times.
Premeditation/deliberation factors: (1) facts about how/what D did before actual killing
which show D was engaged/actively directed toward/explicable as intended to result in
killingplanning activity (2) facts about Ds prior relationship and/or conduct with victim
which jury may reasonably infer motive to killhas to be pre-existing reflection/careful
thought and weighing of consideration rather than just mere unconsidered/rash impulse
hastily executed (see People v. Thomas) (3) facts about nature of killing where jury can
infer killing was particular/exacting that D must have intentionally killed according to
preconceived design.
People v. GarciaDont need all Anderson factors. Focuses on quality of reflection rather than
length of time.
Austin v. U.S.(1) first degree in cold blood (2) second degree on impulse or in sudden heat of
Quality of reflectiondeliberation suggests determination to kill was reached calmly and
in cold blood rather than under impulse or heat of passion AND was reached in
appreciable time before homicide.
Kazalyn v. Statepremeditation is design, determination to kill formed in mind at any moment
before/at time of killing if jury believes killing has been preceded by/result of premeditation, it
is sufficient to be willful, deliberate, premeditated murder.
Byford v. StateKazalyn improperly collapsed willfulness/deliberation
Deliberationprocess of determining course of action to kill as a result of thought;
cannot be formed in passion
State v. Andersonpremeditation means to consider, plan ot prepare for, or determine to
Commonwealth v. Gould (mental disorder)court admits evidence on mental condition and
voluntary drug or alcohol intoxication also admissible.


Voluntary manslaughter: CB 357368, 37595.

Voluntary Manslaughter
The Theory of Mitigation
Intentional killing is usually murder. It is reduced to voluntary manslaughter where there
has been a provocation that caused D to act in the heat of passion.
Distinguish malice aforethought from provocation
o Malice aforethoughtimplies mind under sway of reason
o Passionthough not dethronement of reason, is furor brevisa man rendered deaf
to the voice of reason. It is not an act of malignity of heart but imputable to human
Voluntary manslaughter is intentionalD has killed a person with knowledge, purpose (or
in some jurisdictions intent to inflict a serious wound).
Involuntary manslaughter is gross negligence, recklessness, or merely intent to commit
some other crime
People v. Walker (provocationinterval rule)
Facts: Walker (defendant) was sitting on a porch and drinking with McClinton, Jenkins
and a woman when they were approached by Stenneth, a stranger. When the group
declined Stenneths request to gamble with him, Stenneth took out a knife and moved
toward them. An altercation soon began, during which Stenneth attempted to cut Walker,
McClinton and Jenkins with his knife. Walker eventually threw a brick which knocked
Stenneth down, took the knife out of Stenneths hand, and stabbed him to death.
Following the stabbing, Walker told McClinton that Stenneth had cut him.
Walker was charged with murder and tried in the Circuit Court before a judge without a
Trial court
o At the trial, the People (plainfiff) argued that Walker had used excessive force
against Stenneth and had become impatient after he was cut. Walker and
McClinton both testified that the fight was continuous and lasted only a few
D convicted of murder.
D appealed to the Illinois Court of Appealshe says he was guilty of manslaughter and
not murder.
o D argues if killing occurs during course of fight and before blood of killer has had
time to cool, offense is not murder but voluntary manslaughter.
o Rule
Murderis a killing of another with malice aforethought.
Malice aforethoughtmalice is wholly wanting.
Voluntary Manslaughterunlawful killing of another without malice.
Without malicemust be voluntary upon sudden heat of passion,
caused by provocation sufficient to make passion irresistible
o Provocationserious and highly provoking injury sufficient to
excite irresistible passion in a reasonable person OR attempt by
person killed to commit serious personal injury on person

Intervalif there should appear to have been an interval

between the assault or provocation given and the killing
sufficient for the voice of reason and humanity to be heard,
killing would be deliberate revenge and therefore murder.
Russellin the affray until Russell was shot and killed,
there was no pause, no opportunity for plaintiff in error
to deliberate or reason manslaughter, not murder

Victim was aggressive, intoxicated belligerent who manaced strangers. He
kept swinging his knife at one and al.
D went to McClintons aid he was cut by victim, D knocked him down with
a brick (D did not have a knife), he grabbed victims hand with knife and
stabbed victim with the knife in victims hand. Affray was continuous, lasted
six minutes.
HoldingD guilty of voluntary manslaughter. Remand to CC with directions to
enter finding of guilty of voluntary manslaughter.

MPC: the meaning of provocationprovocation is laws recognition that reasons to kill have
significance on grading. Two elements (1) provocation must be adequate [objective standard]
(2) D must have been provoked [subjective]
Cooling Time
Ex Parte Fraley (Cooling Time)
Facts: Fraley (defendant) saw Parker outside a drug store talking to a group of other
men. Fraley approached Parker, greeted him, and immediately shot him twice. Parker
fell, and Fraley walked around to where he was lying and shot him four more times.
Fraley then left the scene, but after walking some distance, returned and aimed his pistol
close to Parkers head, snapped it and said, You damned son of a bitch! I told you Id kill
you. You killed my boy. Parker had allegedly killed Fraleys son 9 or 10 months before,
but was acquitted. Fraley claimed that, upon seeing Parker, he was reminded of his sons
death and was overtaken by a heat of passion, under which he committed the killing.
Fraley was charged with murder and after a preliminary hearing, he filed a writ of
habeas corpus with the Oklahoma Criminal Court of Appeals requesting that he be
released on bail pending trial in the county court on murder charge.
o Petitioner argues he should be let on bail because proof of his guilt of a capital
offense is not evident or presumption thereof great
D in presenting case, notes victim 9-10 months earlier had shot and killed
son of petitioner. When petitioner saw the victim, recollection of the event
must had engendered him in a passion which overcame him, killing was
committed in the heat of such passion, was without premeditation, and thus
not murder.
o Court disagrees
Cooling time
o Precedent
Ragland v. State4 hours between provocation and
killing sufficient cooling time

Perry v. State & Rockmore v. State3 days sufficient

cooling time
Commonwealth v. Aiello1 to 2 hours sufficient cooling
State v. Williams15 minutes sufficient cooling time
Cooling time is not a subjective standard, but is rather
objective. That is, it is not whether Ds passion in fact cooled,
but whether there was sufficient time in which passion of a
reasonable man would cool. If unreasonable period has elapsed
between provocation and killing, as a matter of law, court can
say cooling time was sufficient.
Ordinarily a day or half a day is more than enough for passion
to cool.

Killing upon provocation of 9-10 months is therefore NOT
manslaughter, its murder.
Held: D not entitled to bail. Denied.

People v. Naslerkills guy who sex assaulted son during testimony. Court holds testimony
sufficient to provoke heat of passions, voluntary manslaughter.
People v. Brookskilled guy 2 hours after he learned of brothers murder. Someome tells him
victim killed brother. Court says entitled to voluntary manslaughter.
State v. Gounagiaslaw will mitigate spur of the moment anger but not anguished brooding
People v. Tapiamanslaughter instruction for addicts killing supplier out of fear
Provocation under uniform rules
People v. Berry (heat of passion)
Facts: At the time of this case, 192 of the California Penal Code defined voluntary
manslaughter as the unlawful killing of a human being, without malice upon a sudden
quarrel or heat of passion. Three days after marrying Berry (defendant), Rachel went by
herself to her native Israel, where she spent over a month, returning on July 23, 1974.
Rachel informed Berry upon her return that she had fallen in love and shared sexual
encounters with a man named Yako, and wanted a divorce. An argument ensued which
escalated into mutual physical violence, but the couple continued to live together
nonetheless. Rachel proceeded to taunt Berry over a subsequent two-week period,
claiming she could be pregnant with Yakos child and showing Berry pictures of them
together, while at the same time routinely demanding sex from Berry and indicating a
desire to continue their relationship. On July 22, after returning home from a romantic
outing, Rachel and Berry got in bed, where she said that she had planned on having sex
with him that night, but decided instead to save herself for Yako. Berry then got up to
leave, Rachel began screaming at him, and he choked her into unconsciousness. Berry
called a taxi to take his wife to the hospital and left the apartment. Rachel was
interviewed by a police officer at the hospital, and a warrant was issued for Berrys
arrest. Rachel called Berry and told him about the warrant. When the two met the next
day at their apartment, they had a brief verbal exchange and Rachel began screaming.
They struggled as Berry unsuccessfully tried to silence her until he strangled her with a
telephone chord.

Berry was charged with murder.

o Dr. Blinder, a doctor and psychiatrist appearing as a defense witness, testified that
Rachel was suicidal and that her taunting of Berry was an unconscious attempt to
provoke him into killing her. When he did so, he was in a state of uncontrollable
rage, influenced only by passion.
o The trial court refused Berrys request to instruct the jury on voluntary
Berry was convicted of murder.
Berry appealed his conviction to the Supreme Court of California.
o D claims he was entitled to instruction on voluntary manslaughter unlawful
killing of human being without malice
o Rule
People v. Valentine (citing People v. Logan)
o Heat of passionpassion as would naturally be aroused in the
mind of a reasonable person under the facts and circumstances
so as to render him to act rashly or without due
deliberation/reflection. (subjective standard)
No specific provocation required. Verbal provocation may
be sufficient.
Passionrage, anger, or violent, intense, high-wrought,
enthusiastic emotion
o Application
infidelity, taunts, other conduct supports a finding that D killed in wild
desperation induced by continued provocatory conduct that could
arouse a passion of pain, jealousy, sexual rage in ordinary man of
average disposition such as to cause him to act rashly from this
Dr. Blinders testimonyD was in heat of passion under
uncontrollable rage
AG argues there is no heat of passion because theres a cooling period (20
hours) as D waited in his apartment. [see People v. BufaraleDs killing of
married woman not heat of passion since Ds act was vengeance . Its
distinguishable because there was no quarrel or provocatory conduct]
Courtprovocatory conduct reaches apex when victim began
o Court reverses judgment of murder.

Commonwealth v. WatcherMA court says no to involuntary manslaughter when dad kills son.
Temper tantrums would not have come as a surprise to D.
State v. Willelimits testimony on provocation claims testify on Ds personality traits, whether
murder was intentional or not, whether D acted under extreme emotional disturbance
Dandova v. StateAL doesnt allow heat of passion two years after
State v. McCarthystate allowed evidence that D had earlier committed batteries against
victimsuggests not heat of passion

State v. Ottcourt rejects trial instruction that extreme means outermost, furtherest, most
remote in any direction
Section 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall be determined from the viewpoint of a
person in the actor's situation under the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
People v. Wu (Jury Instructions: Unconsciousness, Cultural Background Defense)
Facts: Helen Wu, known as Chau (defendant), was born in China and lived there until the
age of thirty-six, when she moved to the United States at the request of Wu, a married
man who promised to get a divorce and marry Chau because his wife was unable to give
him children. Chau and Wu had a child, Sidney, the following year, but Wu gave no
further indication that they would marry, causing Chau, who spoke no English and lived
in an apartment with Sidney, essentially in isolation, to become depressed. In an effort to
gain a commitment from Wu, Chau informed him of her intent to return to China, and
when he did not convince her to stay, Chau followed through, but left Sidney in the
United States with Wu to avoid the cultural shame associated with having a child out of
wedlock. For the following seven years, Chau repeatedly asked that Wu bring Sidney to
visit her, and he finally did when Chau made the visit a condition for giving Wu a loan.
They visited, and Chau gave Wu the money, which she had borrowed. Wu then proposed
marriage, but Chau thought he did so only for money which he believed was hers, which
made her so upset that she tried to jump out a window. The following year, Chau found
out that Wus mother was terminally ill and when Chau went to see her, the mother told
Chau that Wu did not take good care of Sidney, and that Chau should take custody of him
upon her death. Chau and Wu got married later that month, but Chau still suspected that
Wu only wanted her for money, which was reinforced by Wus repeated requests for
money and insulting comments to Chau. Chau planned to go back to China, but wanted
to spend several more days with Sidney. One evening while Chau and Sidney were
playing, Sidney confided in her that Wu had a girlfriend whose house they lived in and
whom Wu loved more than Sidney; that Wu said insulting things about Chau to Sidney;
and that Wu beat Sidney. Chau, recalling the advice of Sidneys now deceased
grandmother, began to experience heart palpitations and shortness of breath. Chau told
Sidney she wanted to die, and asked if he would go with her. Sidney cried and held onto
Chaus neck. Chau then cut a cord off a window blind and used it to strangle Sidney.
Chau then attempted unsuccessfully to commit suicide.
Chau was charged with second degree murder.
o Chau testified that she did not remember strangling Sidney.
o Chau also offered testimony by experts in cross-cultural psychology that she killed
Sidney in a heat of passion likely brought on by her cultural background.


The trial court refused Chaus request to instruct the jury on the defense of
unconsciousness (not the focus of this case) and on the possible effects of Chaus
cultural background on her mental state.
Chau was convicted.
Chau appealed to the Court of Appeal of California for the Fourth Appellate District.
o 4 CA COA
D argues theres a reversible error to warrant unconsciousness instruction.
Court finds D presented enough evidence to warrant a
unconsciousness instruction [committing a criminal act while
unconscious is not a crime] because a reasonable jury could have
found D might have been in a fugue state (a state in which D acts
without conscious thought) and was unconscious in her strangulation
of victim.
D argues trial court erred in refusing to give a cultural background
evidence instruction
Trial court says this is not established law would give courts
imprimatur of actions which would have been acceptable in China, but
not US.
State argues D doesnt need this defense. Ds defenses as to mental
states were covered by other instructions given.
COA says cultural background could have affected mental state.
whether it was a correct statement of the law that the jury may
consider evidence of Ds cultural background in determining
presence/absence of essential mental states of crimes or other issues?
o Yes. It was not objected to by the State.
on what issues is this evidence relevant?
o Mental states
Premeditation and deliberation
o State says D killed for revenge.
o Ds cultural background offers alternative
explanation for statements and motive
behind the killing.
Malice aforethought, heat of passion
Heat of passion
o Berryno specific type of provocation
o People v. Borchersrage, anger, also violent,
intense, high-wrought, or enthusiastic
Applicationtheres a pre-existing stress cultural
background could explain the source of stress and
how Sidneys statements constituted a sufficient


Expert testimony (Chien and Gock)

emotional state intertwined with cultural
Specific intent to kill


COA remands.
D entitled to have jury instruction on unconsciousness defense
D entitled to have jury instruction on cultural background evidence

Unintentional killings
a) Involuntary manslaughter: CB 397403 (through note 4), 405409.

Francis Wharton
Unintentional homicide is when death results as a result of an unexpected occurrence
arising from negligence or inattention.
Inferences of guilt are drawn not from remote causes. The degree of caution requisite to
bring the case within limits of misadventure must be proportional to probability of
danger of attending to act before death.
Commonwealth v. Welansky (Manslaughter (involuntary), The Recklessness
Facts: Barnett Welansky (defendant) spent most of his evenings running a night club he
owned in Boston. The nightclub was a mix of various rooms, narrow hallways, and poorly
marked exit doors. Three of the emergency exits were in obscure locations, poorly
marked, and accessible only to knowledgeable employees. One of the emergency exits
was blocked by a screen and several dining tables. Another exit was kept locked to
prevent patrons from leaving without paying their bill. During a three-week period,
Welansky was in the hospital. One evening during that period, a nightclub bartender
asked an employee to turn on a light in a dark area of a room. The employee lit a match
to see the bulb, turned the bulb in its socket to light it, and blew out the match. However,
the flame of the match ignited a nearby palm tree which then ignited a nearby lowhanging cloth. The fire spread rapidly. The 200-400 person crowd panicked and
unsuccessfully tried to get out of the nightclub. Many patrons and employees were killed.
Welansky was charged with numerous counts of involuntary manslaughter based on
overcrowding, installation of flammable decorations, absence of fire doors, and failure to
maintain proper means of egress.
o State claims D had a legal duty to invitees to use reasonable care to keep premises
safe. Their reckless disregard of duty was willful, wanton, reckless neglectful cause
of death,
Welansky is found guilty of involuntary manslaughter.
Welansky appealed.
o Rule
Involuntary ManslaughterDs wanton or reckless conduct is a cause of
victim(s)s death.
Conductaffirmative act
o E.g. driving a car, firing a gun,

Wantonwillful disregard of an unreasonable risk of high probability

of causing substantial harm to another
o Where there is a duty of carewanton conduct may be found in
intentional failure to take care in disregard of probable harmful
o Willful refers to intending the conduct, not the harm
Wanton/reckless: met with either a subjective and objective standard
o Subjectiveknowing the danger
o Objectiveknowing facts that would cause a reasonable man to
know the danger
o When conduct falls below objective standard, its negligent(?)

D questions admission of evidence.
State showed that exit, fire doors as approved by building department of the
City of Boston, had not been provided. D did not intend to provide it and D
did not provide it at the time of the fire.
Theres a duty of care owedthis is a violation of statute. In Boston, thats
evidence of negligence, no error in admission.

Model Penal Code

Manslaughterrecklessness (conscious disregard. substantial and unjustifiable risk that
conduct will result in death of another; risk must be gross deviation from standard of
conduct that law abiding person would observe in actors situation)
Homicidenegligence (disregard of risk which he should be aware)
State v. Killpackwhat is the necessary mens rea for child abuse homicide?
Facts: mother made daughter drink 128 ounces of water, do exercises, stand in corner as
punishment. Excessive water cause daughters brain to swell, blood sodium to fall, brain
oxygen to fatally decrease.
o Killpack argues she could not be guilty. Her daughters actions caused her to act
under a program to discipline her daughter.
o Killpack objects to jury instruction on child abuse homicide.
Child abuse homicide: death result of child abuse committed recklessly as
provided under child abuse statute.
o Court affirmed instruction because child abuse homicide statute explicitly
references child abuse statute.
State v. Williams (Manslaughter (Involuntary), The Negligence Standard)
Facts: Walter Williams (defendant) was a 24-year-old Shoshone Indian with a sixth-grade
education. His wife, Bernice (defendant) was a 20-year-old with an eleventh-grade
education. Bernice had two young children from a prior relationship, including a 17month-old son. Walter assumed parental responsibility for the children along with
Bernice to provide clothing, care, and medical attention. For a two-week period, the
infant had an infected tooth which went untreated other than aspirin administered by

Walter and Bernice. Eventually, the infection spread to the infants mouth and cheeks and
eventually became gangrenous. The condition, accompanied by the infants inability to
eat, brought on malnutrition and lowered the childs resistance. Shortly thereafter, the
child died from pneumonia.
Walter and Bernice were charged with manslaughter (involuntary) for negligently failing
to provide the child with necessary medical attention.
o Walter and Bernice testified that they did not fully realize how ill the infant was
and that they did not seek medical attention out of fear that the states child
services department would take the infant away from them.
A jury found Walter and Bernice guilty of manslaughter.
Walter and Bernice appealed.
o D argue findings do not support conclusions that they are guilty of manslaughter
as charged.
o Rule
Common law Involuntary Manslaughterbreach has to amount to more
than ordinary/simple negligence it must be gross negligence
Washingtondeath of victim is proximate result of simple/ordinary
Simple/ordinary negligencea failure to exercise ordinary caution
necessary to make out a defense of excusable homicide.
o Ordinary cautionthe kind of caution a man of reasonable
prudence would exercise under the same or similar conditions.
It looks only at the conduct, not intentions (good faith,
ignorance, good intentions). If conduct fails to measure up and
it proximately causes death, its manslaughter.
o Precedent
People v. Pierson (scope of duty contemplated by statute)
Does not require calling doctor for every complaint the child may have
Theres discretion
o Standardwhether an ordinarily prudent person (caring for the
welfare of his/her child) would deem it necessary to call in
those circumstances
o Application
Autopsy surgeon/chief pathologists expert testimonycause of death was
abscessed tooth that developed into a gangrenous infection. Infection lasted
two weeks. Odor associable with gangrene present 10 days before death. If
medical care had been obtained a week before death, the baby would have
Parents testified that they noticed baby was sick about a week and a half to
two weeks before he died.
They didnt call a doctor
Didnt know there was a risk of death
Doctors dont pull out teeth
Fear of losing custody


DutyThere is sufficient evidence for a court to find that under ordinary

caution, defendants were sufficiently on notice concerning symptoms, and
had duty to obtain care.
BreachThey failed to do so, so its ordinary/simple negligence.
ManslaughterSimple/ordinary negligence sufficient to sustain statutory
manslaughter conviction.

MPC incorporates vehicular homicide in negligent homicide section.

Porter v. Statestate supreme court reverses conviction of guy who was speeding and ran stop
signs; insufficient evidence of gross negligence
CAL Penal Codegross vehicular manslaughter is unlawful killing of person without malice
aforethought in driving of vehicle where DUI + killing proximate result of commission of
unlawful act not a felony + with gross negligence
b) Reckless murder: CB 412424.
Mayes v. The People (reckless murder, MPC)
Facts: Mayes (defendant) returned home from a nearby bar. Intoxicated, he acted
belligerently toward his wife, daughter and mother-in-law. When Mayes threw a tin quart
measure at the daughter, his wife, carrying a lit oil lamp, instructed and led the daughter
to the bedroom. Mayes then threw a large beer mug at his wife, hitting and smashing the
oil lamp, causing burning oil to ignite her clothes. Mayes did not attempt to put out the
fire, and his wife died later that week from the burns inflicted.
Mayes was charged with murder.
Trial court
o Mayes asserted that he did not intend to hit his wife with the glass, but rather that
he was attempting to throw it outside through an open door.
This testimony was contradicted by both the daughter and mother-in-law.
o Mayes requested that the jury be instructed that to convict for murder, it must find
beyond a reasonable doubt that Mayes acted with the intent to inflict bodily injury
on his wife when he threw the mug.
The court gave the jury an amended version, essentially instructing the jury
that it could convict if it found that Mayes acted with an abandoned and
malignant heart.
Mayes was convicted of murder.
Mayes appealed his conviction to the Supreme Court of Illinois.
o Common law rule
Murderkilling of another person with malice aforethought
Maliceimplied when no considerable provocation appears or when
the circumstances of the killing show an abandoned or malignant
General malicious recklessnessdisregarding any and all
o Model Penal Code
Reckless homicide manifesting extreme indifferencecriminal homicide
constitutes murder when it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life.
Recklessnesspresupposes a substantial homicidal risk;

The test is whether the actors conscious disregard of the risk

constitutes a gross deviation from the standard of conduct a
law-abiding person would observe in the actors situation

People v. Watson-Court held states vehicular manslaughter statute does not preclude murder
charge because evidence (intoxicated, speeding, nearly killed someone, killed another) would
support a finding of implied malice.
c) Killing in commission of another crime: 424438, 45564.
State v. Martin
Facts: Martin (defendant), who was heavily intoxicated, was evicted from a party in a
third-floor apartment. A few minutes after Martin left, one of the guests noticed that the
building was on fire. Everyone escaped except for one woman who had fallen asleep in
the apartment and died of asphyxiation from the fire.
Martin was accused of setting the fire and charged with arson, aggravated arson, and
felony murder.
Trial Court
o Martin testified that he lit a trash bag with a match but intended only to make a
mess and did not think the fire would spread or hurt anyone.
o The State (plaintiff) offered expert testimony that the fire was started by pouring
kerosene between the first and second floors of the building.
o The trial court instructed the jury that Martin was guilty of felony murder even if
he started the fire recklessly, unintentionally, or accidentally.
Martin was convicted on all three charges.
Martin appealed to the Appellate Division.
The Appellate Division affirmed the convictions.
Martin then appealed to the Supreme Court of New Jersey.
o Rule
Common law: Felony Murdervictim died in the course of the commission of
the felony
Before NY Code
Felony murder-any person who in committing or attempting to commit
arson, burglary, kidnapping, rape, robbery, sodomy, or any unlawful
act of which probable consequences may be bloodshed kills
another is guilty of murder.
o Must prove but-for cause, must prove proximate cause
NJSA Felony Murderactor is engaged in the commission of arson [or
robbery, sexual assault, burglary, kidnapping, carjacking, or criminal escape]
and in the course of the crime causes the death of a person other than one of
the [crime] participants
o Did not commit homicidal act AND
o Was not armed with deadly weapon AND
o Had no reason to believe other participant armed with such
weapon AND
o Had no reason to believe other participant intended conduct
likely to cause death or serious physical injury

Model Penal Codeinstead of treating felony murder as an absolute liability

offense, it creates a presumption of recklessness that if not rebutted would
support a conviction for murder.
State v. Canola4 perpetrators attempt to rob jewelry store. Owner kills a
perpetrator. Owner is killed by perpetrators. D convicted of felony murder of
both owner and perpetrator.
Courtfelon cannot be liable for any death when death was caused by
someone other than a participant in the commission of a felony.
NJ legislature: eliminates requirement that death be caused by one of the
participants and that the death occur in furtherance of the commission of
the felony.
NJ Code (general rule of criminal law) subsection eactual result (death)
not established unless it is the probable consequence of the commission of
the felony.

State v. Shock
Facts: At the time of this case, the Missouri felony murder statute provided that a
homicide constituted first degree murder when committed during the course of certain
named felonies or any other felony. Shock (defendant) beat a young boy with a fishing
pole and a grapevine for about fifteen minutes, covering the boys head with bruises,
beating his back severely, and fracturing his skull. The boy died from the beating.
Shock was charged with first degree murder.
Trial Court
o At Sharps trial in the circuit court, the court instructed the jury that, even if Shock
did not [specifically] intend to kill the boy, he was guilty of first degree murder if
he intended to inflict [willfully and maliciously] great bodily harm.
Shock was convicted of first degree murder.
Shock appealed to the Supreme Court of Missouri.
SC MO overrules. Reversed and remanded.
o Rule
Common Lawa homicide committed in the willful and malicious infliction
of great bodily harm was murder.
Great bodily harm is intended, though not death. Infliction of great
bodily harm is malum in se and party is answerable for all harm that
State v. Jenningshomicide, committed in the attempt to perpetrate any
arson, rape robbery, burglary, or other felony, shall be deemed murder in the
first degree.
Court overrules Jennings. Jennings is a misquote. See statute below!
Murder oneEvery murder (court reads murder at common law)
committed by poison, lying in wait, or other willful, deliberate and
premeditated killing or which shall be committed in the perpetration
or attempt to perpetrate any arson, rape, robbery burglary, or other
felony, shall be deemed murder in the first degree.

Other felonyrefers to collateral felony, not acts of personal

violence necessary and constituent elements of homicide itself
(i.e. merged with it, do not constitute offense distinct from
Murder twoall other kinds of murder at common law not declared
manslaughter or justifiable/excusable homicide is murder two
o Thinks jury properly instructed on
murder onewillful, deliberate, premeditated killing
manslaughter fourth-Henry (concur)
o Homicide committed during arson, rape, robbery, burglary, or other felony AND
which was murder at common law is murder one. Also includes poison, lying in
wait, etc.
o State wants to enlarge class; Henry thinks its only recognizing designated
instances for classification purposes
Would have odd effects on abortion which are reserved as manslaughter two
this construction would make it murder one!
Assault with intent to killfelony
Assault, premeditated but not deliberate death ensuesmurder two
Heat of passionmanslaughter
Under Jenningsall of these would be murder one!
o Purpose of statute is to mitigate, States interpretation would make it more severe.
Norton (dissent)
o Doesnt think we should merge assault from homicide elements. Thinks they are
separate issues.
o Its a felony to castrate someone. What if someone castrates a man and he dies? Is
he answerable for murder one even though his intent was to maim but not kill?


Capital murder and the death penalty: Reading TBD

Olsen v. State
o No errors in guilt phase.
o Errors in sentencing phase
Insufficient evidence to support jury finding of aggravating circumstance
that murders were especially atrocious/cruel, unnecessarily torturous
Insufficient evidence to support jury finding of aggravating circumstances
that Olsen knowingly created great risk of death to two or more persons
Improper jury instructions on law of mitigating circumstances/decision
o Set aside sentence of death and remand for new sentencing hearing.
Penry v. Lynaugh (evidence of mental retardation/abused background must be given
effect at sentencing)
Question: whether Penry was sentenced to death in violation of Eighth Amendment
because jury not instructed it could consider/give effect to mitigating evidence in
imposing sentence.
o Judicial precedent

Lockett/Eddingspunishment should be directly related to personal

culpability of criminal D. Eddings says not enough to allow D to present
mitigating evidence, sentence must be able to consider and give effect to
evidence in imposing sentence.

o Did Penry act deliberately when he murdered Carpenter?
Texas does not define deliberately
Penrys mental retardation relevant to question of deliberateness
Absence of jury instruction defining deliberately in a way that would clearly
direct jury to consider Penrys mitigating evidence as it relates to personal
culpability makes court unsure whether jury was able to give effect to
mitigating evidence.
Instruction should have been given to take into account mental retardation.
o Is there a probability he will be dangerous in the future?
Evidence of mental retardation relevant here only as an aggravating factor
i.e. since hes retarded, hes unable to learn from his mistakes.
Prosecutor argues there is strong probability D will continue to commit acts
of this nature. In prison, Penry could hurt doctors, nurses, librarians,
Did not provide vehicle for jury to consider mitigating effect to Penrys
o Did he act unreasonably in response to provocation?
State argues D stabbed Carpenter with scissors not in response to
provocation, but for purpose of avoiding detection.
P says he did not stab victim after she wounded him, but killed her after
struggle ended and she was lying helpless.
Court says even if juror concluded mental retardation rendered him less
culpable, this would not necessarily diminish unreasonableness of response
to provocation by victim. Juror who believed D lacked moral culpability could
not express that view if s/he concluded Ds action not reasonable response to
State concedes this point. State argues that to allow jury to take these into
account would be unbridle discretion under Furman v. Georgia.
Court disagrees
o In absence of instructions informing jury that it could consider/give effect to
mitigating evidence as to Ds mental retardation and abused background, jury not
provided with vehicle for expressing reasoned moral response..

Wyoming Statute (475-476)

Mitigating Circumstances
PREPARATORY OFFENSES AND GROUP LIABILITY (*throughout you are accountable for
MPC Article 5, Inchoate Crimes Appx B*)
An inchoate offense, inchoate offence, preliminary crime, or inchoate crime is a crime of
preparing for or seeking to commit another crime.

Attempt: CB 667698.

Attempta failed effort to cause harm

MPC 5.01 criminal attempt
Section 5.05. Grading of Criminal Attempt, Solicitation and Conspiracy; Mitigation in
Cases of Lesser Danger; Multiple Convictions Barred.
(1) Grading. Except as otherwise provided in this Section, attempt, solicitation and conspiracy
are crimes of the same grade and degree as the most serious offense which is attempted or
solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a
[capital crime or a] felony of the first degree is a felony of the second degree.
(2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or
conspiracy is so inherently unlikely to result or culminate in the commission of a crime that
neither such conduct nor the actor presents a public danger warranting the grading of such
offense under this Section, the Court shall exercise its power under Section 6.12 to enter
judgment and impose sentence for a crime of lower grade or degree or, in extreme cases, may
dismiss the prosecution.
(3) Multiple Convictions. A person may not be convicted of more than one offense defined by
this Article for conduct designed to commit or to culminate in the commission of the same
Mens Rea for Attempt
State v. Lyerla (cannot attempt to recklessly murder)
Facts: Lyerla (defendant) became enraged while driving his car on an interstate highway
when the driver of a pickup truck would not let him pass. Lyerla decided to leave the
interstate and exited but changed his mind when he saw that the truck had stopped
nearby. Lyerla loaded his pistol, reentered the interstate, and passed the truck. When the
truck tried to pass him, Lyerla fired three shots at the passenger side of the truck.
Jensen, the driver, was killed by one of the bullets, but two other girls riding in the truck
were unharmed.
Lyerla was charged alternatively with first degree murder and second degree murder for
the death of Jensen and with two counts of attempted first degree murder and attempted
second degree murder of the other two girls.
o At his trial, Lyerla testified that he feared for his life and shot at the truck in order
to disable it.
Lyerla was acquitted on all charges of first degree murder and attempted first degree
murder, but was convicted of second degree murder for killing Jensen and of attempted
second degree murder of the other girls.
Lyerla appealed his convictions to the Supreme Court of South Dakota.
o Konenkamp
SD Rule
Attemptrequires specific intent to commit act constituting offense
o Attempted second degree murdermust intend to have a
criminally reckless state of mind, i.e. committing imminently
dangerous act while evincing depraved mind, regardless of
human life, but without design to kill any particular person
People v. Perezcannot attempt to cause death of another by reckless

Colorado COAits a logical impossibility to attempt to commit

criminally negligent homicideyou cant intend to perpetrate an
unintended killing!
ApplicationDs conviction reversed
Sabers (dissent)
Had the acts resulted in deaths either directly or indirectly, D would have
been guilty for second degree murder.
SD Law
A person who attempts crime, but fails is punishable where no
provision is made by law for punishment of attempt
Homicidesecond degree murder perpetrated by any act imminently
dangerous to others and evincing a depraved mind, regardless of
human life, although without premeditation of any particular
individual victim.
Sabers says that specific intent is not required by statute, it simply
requires an act.
o Stupid, dangerous acts sufficient
o So long as its voluntary and not non-volitional or forced, its
Lyerla committed dangers/stupid act; this is sufficient for attempted
second degree murder under SD law.
Saberss problem with the majority opinion
Theres no intent required under the statute for second degree
murder other than to voluntarily act. Sabers doesnt think its a logical
Thinks they are confusing murder and homicide
Would recognize attempted second degree murder in SD and affirm Lyerlas
conviction for attempted second degree murder.

Lyerla generally followed. (see State v. Coble)

Attempted reckless murderlogical impossibility (see State v. Norman, People v. Hall)
HIV cases
State v. SmithHIV exposure; court upholds conviction of HIV inmate biting officer in
attempted murder and aggravated assault.
Smallwood v. Stateattempted murder reversedD committed rape; court says must prove Ds
specific intent to kill victim
Brock v. Stateconviction overturned; no evidence D believe HIV would be transmitted through
People v. MarkowskiD HIV positive tried to sell blood to plasma center. Charged with assault,
attempted murder, attempted blood poisoning. Court dismissed assault/attempted murder
MPC 211.2 Reckless Endangermenta person commits a misdemeanor if he recklessly
engages in conduct that places/may place another person in danger of death or serious bodily

MPC 5.01 on criminal attempt

A person is guilty of attempt to commit a crime if in acting with culpability otherwise
required for commission he
o Purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes OR
o When causing a particular result is an element of the crime, does or omits anything
with purpose of causing or with belief it will cause such result OR
o Purposely does or omits anything that under circumstances is act or omission
constituting substantial step in course of conduct planned to commit crime
People v. Stone (intent to murder transfers)
Facts: After a verbal altercation took place at a carnival between members of the Norteno
gang and members of the Sureno gang, Rincon and Stone (defendant), members of the
Sureno gang, drove past the group of Nortenos twice in the carnival parking lot. On the
third pass, Rincon stopped his truck 10 to 15 feet from the group and held up a gang
sign. Stone then rolled down the window, pulled out a gun, and fired it.
Stone was charged with attempted murder of one Norteno gang member, Joel F.
o At trial, a police officer who was standing approximately 60 feet away observed
Stones arm come out of the passenger window, and then saw a muzzle flash and
heard a gunshot.
o The officer further testified that Stone was pointing the gun straight out the
window at a group of Nortenos about 4-5 feet away. Joel F. testified that the gun
was pointed up slightly and extended toward the group when Stone fired.
o Joel F. additionally testified that he did not believe Stone had pointed the gun at
anyone in particular, but noted that when he heard the gunshot he ducked out of
fear of being hit.
Stone was convicted and he appealed.
o The court of appeal reversed and held that the trial court had improperly
instructed the jury on the intent requirement of attempted murder.
Might have cause jury to believe it could convict D of attempted murder if it
found a generalized intent to kill
o The appellate court further found that there was insufficient evidence to sustain
Stones conviction.
The California Supreme Court then granted certiorari to review.
o Chin
Question: can a person who shoots into a group of people, intending to kill
one of the group, but not knowing or caring which one, be convicted of
attempted murder?
Answer: Yes.
Attempted murder requires specific intent to kill and commission of
direct but ineffectual act toward accomplishing the intended killing.
o Does the intent to kill refer to intent to kill a specific person or
a generalized intent to kill someone?

People v. Blandthe rule in Bland is that someone who

does not intend to kill a specific person is not guilty of
that persons attempted murdereven if it would have
been murder. Ds mental state must be intent to kill that
particular victim, not someone else.
You can however be charged with murder, if the
person dies, though you dont intend it.
It may rise to attempted murder if D intended a
concurrent killing and failed, but only if the target
of the concurrent killing is the particular subject of
attempted murder OR if the means achieved would
have ensured death of others in the zone (i.e.
placing a bomb)
Concurrent Intent or Kill Zone theoryintent
to kill a particular person does not preclude
finding that the person also concurrently intended
to kill others within the kill zone.
o Court says kill zone theory does not fit facts
of this case. Here the other persons are
untargeted. Kill zone theory applies when
concurrent persons are targeted or when
means used to kill would inevitably result in
death of other victims in the kill zone.
Court endorsed Judge Mosks view that for murder,
intent to kill need not be directed at a specific
o Dressler: Requisite intent is the intent to kill
a, not a specific human being
o People v. Scottaffirmed convictions of murder of unintended
target and attempted murder of intended targetintent to kill
intended target transferred to unintended target and could also
support conviction of attempting to kill the intended target
o A person who intends to kill can be guilty of attempted murder
even if no specific target is in mind.
Indiscriminate would-be killer is just as culpable as one
who targets specific person
However, guilt of attempted murderer must be judged
separately as to each victim
MPC 2.03(2)(a)knowledge and purpose transfer from injury to particular person to similar
injury to a different person

Actus Reus of Attempt

Preparation vs. Attempt
People v. Murray (mere preparations NOT attempt)


Facts: Murray (defendant) decided to marry his niece, eloped with her, obtained
witnesses for a marriage ceremony, and asked one of the witnesses to find a magistrate
who would officiate. However, the wedding ceremony did not take place.
Murray was charged with attempting to enter into an incestuous marriage.
Murray was convicted and appealed to the Supreme Court of California.
o Held: evidence is not sufficient to sustain charge against D of attempt to contract
an incestuous marriage.
o Preparationdevising or arranging the means or measures necessary for the
commission of the offense
The evidence: we have declarations of determination to contract marriage,
elopement with niece, request of witness
Court says these are preparatory
This shows intention, but something more than intention is necessary to
constitute attempt
o Attemptdirect movement toward the commission after the preparations are made

Preparatory activitynot criminally liable
Beyond mere preparationmay be charged with attempt
MPC uses substantial step standard: Attempt should require criminal purpose, an act that was a
substantial step in a course of conduct designed to accomplish a criminal result
Substantialact must corroborate criminal purpose
6 tests distilled from law rejected by MPC (683)
Unequivocality testattempt committed when actors conduct manifests intent to commit crime
McQuirter v. State (sufficient attempt)
Facts: Around 8:00 p.m., Mrs. Allen, a white woman, was walking home from a restaurant
with her children when she passed McQuirter (defendant), a black man, sitting in a truck.
As she passed by, McQuirter said something unintelligible to Allen, got out of the truck,
and began walking behind her down the street. Shortly thereafter, Allen turned into a
friends driveway and McQuirter walked passed her to the end of a street where he
leaned against a stop sign. After about 30 minutes, Allen saw McQuirter walk back
towards the truck and Allen went home.
McQuirter was later arrested for attempt to commit an assault with the intent to rape.
o At trial, the chief of police testified that McQuirter told him he had made up his
mind that he was going to get the first woman who walked bycarry her to the
cotton patch and if she hollered he was going to kill her.
o McQuirter testified that he was sitting in the truck when he decided to go to the
Frontthe black section of townto look for a colleague. McQuirter started
walking up the street when he saw Allen and the children. Once McQuirter
reached the intersection, he testified that he sat there for a few minutes, decided
to go to the Front, stayed at the Front for about 30 minutes and then came back to
the truck. McQuirter denied that he was following Allen for any illegal purpose or
to do her any harm.

McQuirter was convicted of attempt to commit an assault with the intent to rape.
He appealed, arguing that the trial court erred in refusing the general affirmative charge
and in denying his motion for a new trial on the ground that the verdict was contrary to
the evidence.
o Rule: Burton v. Statean attempt to commit an assault with intent to rape
means an attempt to rape which has not proceeded far enough to amount to an
o Applicationjury must find beyond reasonable doubt that D intended to have
sexual intercourse with P against her will, by force, or putting her in fear.
Court thinks there is enough evidence to warrant submitting to jury question
of Ds guilt.
o No reversible error. Affirmed.

People v. Rizzo (insufficient attemptdangerous nearness rule)

Facts: Charles Rizzo (defendant) along with three others intended to rob a man of a pay
roll valued around $1,200. Rizzo was to point out the man to the others who were to
commit the actual robbery. The men, two of whom had guns, drove around town in a car
looking for the man, but were never able to find him. During their search, nearby police
became suspicious and followed the vehicle. Shortly after Rizzo jumped out of the car and
ran into a building, all four were arrested for attempted robbery despite never finding the
man they intended to rob.
Rizzo and the others were convicted of attempted first-degree robbery.
They appealed.
o Question: did Ds acts constitute attempted robbery of first degree?
o Rule
Attempt to commit a crimean act done with intent to commit a crime and
tending but failing to effect its commission
Tendingto exert activity in a particular direction
Preparation is too remote to constitute crime of attempt
Judicial precedent--Rule of immediate nearness
People v. Millsfelonious intent is not enough, there must be an overt
act (one done to carry out the intention)
Hyde v. USact amounts to attempt when it is so near to the result
that the danger of success is very great
Halsbury in Laws of Englandcriminal attempt must be immediately
(and not remotely) connected with and directly tending to the
commission of an offense
Commonwealth v. Peasleeacts coming very near the accomplishment
of the crime
Unlawful taking of personal property from the person or in presence
of another, against his will, by means of force, or violence, or fear of
injury, immediate or future, to his person
First Degree Robbery
When committed by a person aided by accomplices actually present
o Application

D looking to rob pay roll man of his money.

Actual robberymoney must have been taken from Rao by means of
force or violence, or through fear
Question is does it come dangerously near a robbery?
No. Rao was never found. Ds planned (preparations) to commit a
crime and were looking for the opportunity to do so, but the
opportunity never came.
o Court notes strange situationthere were four defendants, but only Rizzo
appealed. There is no remedy for them. Suggests DA bring cases to Governor.
Reversed and new trial.
Cardozo concurs.

People v. Staples (sufficient attempt; when abandonment defense barred)

Facts: While his wife was away from home, Staples (defendant) rented a second-floor
office that he knew was located directly above a bank vault. While the landlord was
preparing the office prior to commencement of the lease, Staples brought in drilling
tools, gas tanks, and a blow torch. On a day when he knew the building was empty,
Staples drilled holes in the floor over the vault, but stopped before the holes went
through the floor. Although he made several more visits to the office, Staples did not
finish drilling the holes. Eventually the landlord found Staples tools and informed the
police, who arrested Staples. After being read his constitutional rights, Staples admitted
drilling the holes but said that he had begun to have doubts about proceeding with his
plan to rob the bank and realized it was absurd after his wife returned home.
Staples was charged with attempted burglary.
The trial court ruled that the defense of abandonment did not apply because Staples had
dropped his plans involuntarily when he learned that the landlord had found his tools and
notified the police.
Staples was convicted.
He appealed to the California Court of Appeal.
Question: is this an attempted burglary?
CA COA says theres no litmus test.
o Court asks whether there is substantial evidence entitling a judge to find that Ds
acts have gone beyond the preparation stage.
Theres no cut-off, but the court points to drilling as unequivocal and
direct step toward the burglary. This is admitted by D.
o A good evidence of attempt is interception
Here, theres interception when landlord assumes control and turns over Ds
tools to the police
o D claims abandonment defense
Court says in light of interception, its probably non-voluntary
Court says voluntariness is not essential characteristic here. The question is
whether acts have reached stage of advancement as to become attempt.
Once this happens, abandonment is not available.
o Affirm.
Renunciation ruleunlike Staples, MPC allows abandonment. 5.01(4) Renunciation of
Criminal Purposerequires complete & voluntary renunciation of criminal purpose


Conspiracy: CB 805819, 823843.

State v. Verive (conspiracy vs. attempt)

Facts: Lee Gavin filed an affidavit that exposed Howard Woodalls perjury. Carl Verive
(defendant) agreed with Woodall that Verive would go to Gavins house and beat him up
in an attempt to dissuade him from being a witness in Woodalls trial. Verive did in fact go
to Gavins house and beat him up, saying that he was sent by Woodall.
Verive was charged with conspiracy (2nd degree) to dissuade a witness and attempt to
dissuade a witness.
The trial court convicted him.
Verive appealed.
o He argued he should not be held criminally liable for both conspiracy and attempt
based on his one criminal act.
COA AZ: Do the two convictions violate the single punishment statute?
o Arkansas ruleonly one punishment per act
Identical elements testrequires that after eliminating the evidence
necessary to support one of the charges the remaining evidence must be
sufficient to support the remaining charge.
o Conspiracy(1) an unlawful agreement with one or more persons to engage in the
commission of a felony or to cause the commission of a felony (2) proof of some
overt act to effect the object of the conspiracy
o D argues state relied upon the same overt act to prove both the attempt and the
Court says two overt acts alleged
Verive struck Lee
Verive or Robinson went to 984 W 10th Street
Court says both acts sufficient, only one act required. Finds no violation of
single punishment statute.
o D argues conviction of attempt to dissuade and conspiracy to dissuade violates
rights under double jeopardy clause of the fifth amendment: nor shall any person
be subject for the same offense to be twice put in jeopardy of life or limb.
o Court: question is whether its the same offense or a whether one of the charges is
a lesser included offense of another.
Blockburger v. United States Test: we ask whether each provision requires
proof of an additional fact which the other does not
o Compare the rules
Attempt to dissuade a witness (1) intent to dissuade the witness (2) an overt
act in furtherance of that intent
Conspiracy to dissuade a witness (1) intent to dissuade the witness (2) overt
act (3) an agreement between two or more people
o Overt act in furtherance of that intent =/= overt act; proving conspiracy would not
necessarily be sufficient to support an attempt conviction so attempt is NOT a
lessor included offense of conspiracy.
Conspiracy to dissuade a witness and attempt to dissuade a witness are separate and
distinct offenses.
Conspiracy vs. Attempt

Requires more than attemptrequires at least two participants

Requires less than attemptpushes the line between preparation and criminal liability
farther back than attempt laws does
Verive doctrine (Arizona) is that conspiracy does not merge into attempt. It is followed in
some states like Arkanasa, the 8th circuit,
Model Penal Code disagrees. It considers conspiracy a lesser included offense of attempt.

Griffin v. State (conspiracy may be inferred)

Facts: Griffins car overturned and someone called the police. When the police arrived on
the scene there was a crowd of people there. Out of nowhere, Griffin and members of the
crowd started yelling at and attacking the police officers, severely beating them.
Griffin was charged with conspiracy to commit the beatings.
He was convicted.
Griffin appealed.
SC Arkansas
o Appellant argues there must be direct evidence of a conspiracy, common design or
purpose, and of intent of conspirators to engage therein.
o Arkansas rulenot necessary combination, conspiracy or concert of action to
commit an unlawful act be shown by direct evidenceit may be proved by
circumstances, inferred.
Show two or more persons pursued by their acts the same unlawful object,
each doing a part, so that acts were in fact connected
Concert of action sufficient
Decker v. Statetwo persons separately approached a third for the purpose
of prevailing upon him to kill a fourth personsufficient to infer conspiracy
among three to take life of victim
Wiley v. Statetwo parties found to possess portions of stolen goods taken
in the same larcenyheld sufficient to establish conspiracy to take goods
o Applicationcircumstances shown by testimony presented by state sufficient to
pose question of whether parties were involved in assault with common intent and
object pursuant to a common plan.
o Affirmed.
Mens Rea of Conspiracy
People v. Lauria (conspiracy requires knowledge, intent, & agreement; when intent
may be inferred)
Facts: A police investigation revealed that three known prostitutes were using Laurias
(defendant) telephone answering service for business purposes. Stella Weeks, a police
officer, went undercover, posed as a prostitute, and signed up with Laurias answering
service. Over approximately a three month period, Weeks periodically complained to
Laurias office manager about losing calls and not receiving messages for tricks. Lauria
defended his service and emphasized that his business was taking messages.
Thereafter, Lauria and the three prostitutes were arrested and charged with conspiracy
to commit prostitution, a misdemeanor.

Lauria objected to the arrest and told the police that, while he knew of only one
known prostitute, his records were always available whenever the police had a
specific name to investigate, but also that his service did not arbitrarily tell the
police about prostitutes.
The trial court dismissed the indictment brought against Lauria and the three prostitutes
as lacking probable cause.
The People appealed.
o Rules
Conspiracy: (1) Seller knows buyer intends illegal use (2) Seller, by sale,
intends to further, promote, and cooperate in it [May be proven my direct or
circumstantial evidence]
Agreementstate needs to show at minimum tacit, mutual understanding
between co-conspirators to accomplish an unlawful act.
o People say its a conspiracy because Lauria was aware his codefendants were
prostitutes who received business calls through his telephone answering service,
and he continued to furnish them with such service.
Court says hold on, this is eliding knowledge with conspiracy.
o Question: what is the criminal responsibility of a furnisher of goods who knows his
product is being used to assist operation of an illegal business? Under what
circumstances does supplier become part of conspiracy?
o Judicial precedent
US v. Falconesellers of sugar, yeast, and cans were absolved from
moonshining conspiracy
Knowledge not sufficient for conspiracy
Direct Sales v. USwholesaler of drugs convicted of conspiracy to violate
federal narcotics laws
Active promotion of sale sufficient
Whats the difference between the two? Distributors of drugs are required to
exhibit greater judgment than distributors of innocuous products like sugar,
yeast, and cans.
o Application
KNOWLEDGE Lauria knew in fact some of his costumers were prostitutes so
its a legitimate inference that he knew they were subscribing to his service
for illegal business purposes. Prosecution is entitled to claim positive
knowledge by Lauria of the use of his service to facilitate the business of
People argue since Lauria knew customers were using his services for
illegal purposes but continued to provide them, he must have intended
to assist them in carrying out their illegal activities.
Judicial precedent: When can intent be inferred?
Intent may be inferred from knowledge when the purveyor of
legal goods for illegal use has acquired a stake in the venture
(Regina v. Thomas)
o Not here


Intent may be inferred from knowledge when no legitimate use

for the goods or services exists. (People v. McLaughlin, Rex v.
o Not here
Intent may be inferred from knowledge when the volume of
business with the buyer is grossly disproportionate to any
legitimate demand or when sales for illegal use amount to a
high proportion of sellers total business. (Shaw v. Director)
o Not here
There are cases where although supplier has no special
interest, he may be liable on basis of knowledge alone (Direct
Sales, Regina v. Bainbridge)
o This applies in felonies, but with respect to
misdemeanors, positive knowledge that goods/services
used for crime does not establish intent to participate in
the misdemeanor.
Intent may be established by
o Direct evidence
o Inference
Special interest in activity OR
Aggravated nature of crime
No proof Lauria took direct action to further, encourage, or direct the call
girl activities of his codefendants. Not conspiracy.
Mens rea problems of conspiracy
Mistake of law
o Corrupt motive doctrine: Some courts hold that a mistake of law defining offense
would exculpate one charge of conspiracy even though it didnt exculpate the
substantive crime.
o Modern trend rejects this, equates mens rea requirements for conspiracy with
those for the substantive crime. See MPC.
Nonpurposeful conspiracy
Conspiracy in heat of passionprovocation diminishes culpability for killing but not for
o Some states reject this view. People v. HornCA court held conspiracy charge can
be reduced in same was the substantive crime charge would be.
Spontaneous conspiracy
o Can you conspire to commit second-degree murder? Or does it have to entail
o Mitchell v. States
Lower court says it is legally and factually possible for a person to conspire
to commit unpremeditated murder
Appellate court rejected this.
US v. Diaz (Pinkerton Rule re. firearms)
Facts: Diaz (defendant) and Peirallo were part of a cocaine sale to an undercover DEA
agent. The two did not know their buyer was an agent and agreed to meet the agent and
transfer the cocaine. Peirallo carried a gun with him at the drop in case anyone tried to

steal the drugs. When the sale occurred, the agent gave the arrest signal and Diaz and
Peirallo were arrested.
Diaz was charged with conspiracy to distribute cocaine and the use of a firearm in
relation to the commission of a drug trafficking crime.
He was convicted of both.
He appealed the conviction of the use of a firearm on the grounds that he, himself was
not armed during the cocaine transfer.
o Government argues Peirallos carrying of firearm could be imputed to Diaz because
of their joint membership to conspiracy.
o Rule
Pinkerton v. USFirearm violation may be imputed to members of
conspiracy. Circuit court interprets this to mean each conspirator liable for
act of other conspirators done in furtherance of conspiracy. Exception:
UNLESS crime could not be reasonably foreseen as a necessary or natural
consequence of the unlawful agreement.
o Court agrees Peirallos carrying of firearm could be imputed to Diaz because of
their joint membership to conspiracy. Exception does not apply here, it is
reasonable to assume weapon would be carried in a dangerous drug transaction.
Affirmed conviction.

Pinkertontwo brothers convicted of conspiracy to violate IR code. Also committed substantive

crimes. Court holds since co-conspirator had committed crimes in furtherance of conspiracy D
was liable for them.
US v. Alvarez
Undercover federal agent shot to death by drug dealers. Simon realizes police closing in.
Simons co-conspirators were convicted of second degree murder to death of Rios under
Pinkerton rule. Court upholds convictions.
US v. McVeigh
Timothy McVeigh took bomb to federal building and set it odd. He was sentenced to
death and executed for crimes including using a weapon of mass destruction. Nichols is
his friend. He helps him by committing robbery to finance the construction of the bomb
and by acquiring and helping assemble parts for it. Nichols drove McVeigh to Oklahoma
City three days before the bombing. Trial jury found Nichols guilty of conspiracy, but
acquitted him on actual bombings and mass murders.
MPC rejects Pinkerton
2.06 a person is guilty of an offense if he commits it by his own conduct or bu the
conduct of another person for which he is legally accountable or both.
o If D not direct perpetrator, he must be proven guilty by rules of accomplice
Parties to and Object of Conspiracy
Bilateral and Unilateral Conspiracies
The problem of disparate outcome

US v. FoxFox, Davis, and Kaufman charged with conspiracy to obstruct justice

and to defraud U.S. Fox pleads guilty. After two juries cannot reach verdict,
government enters nolle prosequi (declines to prosecute) against Davis and
Kaufman. Fox moves for withdrawal of guilty plea. Court refuses.
In single trial of alleged parties to conspiracy, acquittal of all but one would
require acquittal of last.
Conviction of some conspirators do not fall because others named are
Conviction of one conspirator is not vitiated because of possible later
acquittal of co-defendants.
One may be convicted/punished for conspiracy though fellow co-conspirators
immune from prosecution.
o Classical rule is acquittal of all save one results in acquittal. Applies only to
acquittals on merits. This is a procedural issue.
o State v. Coloncourt held that even a jury acquittal of Ds sole co-conspirator will
not as a matter of law bar conviction of conspiracy where parties receive separate
Unilateral conspiracieswhat if only one could be convicted?
o J and M agree to commit crime. M cannot be convicted of conspiracy because he is
undercover. Can J be guilty all be himself?
o Bilateral viewolder view of the courts says he could not be guilty of conspiracy.
o Unilateral viewjust because co-conspirator has no intention of fulfilling
conspiracy, its irrelevant as long as conspirator does intend to fulfill it if he can.
o MPC adopts unilateral view.
Its conspiracy if
Agree to engage in conduct constituting crime, attempt or solicitation
to commit crime OR
Agree to aid in planning or commission of crime (or
o Federal courts seem to reject unilateral conspiracy. It takes two to conspire
Statutory exclusion of liability for one party
o Gebardi v. USgirl goes with guy out of state to have sex. Law says you cant
knowingly transport woman for prostitution or other immoral purpose. Court holds
female D only consented to but did not aid or assist in obtaining her transportation.
Cannot be convicted for conspiracy. Guy has no one to conspire with.
Whartons rule
o Exception to the principle that conspiracy is distinct from substantive crime.
When, to the idea of offense, plurality of agents is logically necessary,
conspiracy, which assumes voluntary accession of a person to a crime of
such a nature that is aggravated by a plurality of such agents, cannot be
Two parties to crime of adultery, incest, bigamy, or dueling, cannot be
convicted under substantive crime and conspiracy because substantive
crime assumes two people will agree to commit it.
What if conspiracy consists of more than number of parties need to commit
offense? Suppose A,B,C, D arrange duel between A and B?
Ianelli v. USSCOTUS says Wartons Rule does not apply to facts of the case
(8 charged for conspiring to violate and violating federal gambling statute).



Uneven penalties
o State v. Pinkertoncourt rejects conspiracy charge that would effectively equate
seller and buyer when substantive law subjects seller to higher penalty.
Complicity: CB 72540, 75665, 76972 n.2 (stop before n.3)

Accomplicepersons held liable for aiding or encouraging the offense of another.

State v. Foster
Attempt and conspiracy are distinct offenses in and of themselves
Accessory is not a distinct offense, but provides an alternative means by which a
substantive crime may be committed.
Modern approach is to provide that a person is legally accountable for the conduct of
another when he is an accomplice of the other person in the commission of the crime
o See MPCa person is an accomplice of another person in the commission of an
offense if with purpose of promoting/facilitating commission of offense, he solicits
other person to commit it or aids/agrees/attempts aid to other person in
planning/committing it or fails to make proper effort to prevent it.
Distinguish accomplice liability from omission
Omission from legal duty is a way of fulfilling the act element. Usually D is held liable for
relationship with the victim.
Accomplice liability wrongdoing flows from accomplices relationship to the perpetrator.
Complicity vs. Causation
Common law viewcomplicity was developed when common law view was each person
ordinarily the cause of her own actions. So you become responsible for anothers crime
by joining it rather than causing it.
Christopher Kutz
o Collective actions are most important and far reaching harms and wrongs
o Its the group enterprise, not the individual that makes the difference in their
occurrence so the group should be held responsible as a whole
o Complicity Principle
Participants in collective harm are accountable because intentional
participation in collective endeavor links them to consequences of that
o Participation rather than causation is more central to complicity liability.
Criminal law generally imposes liability when actor consents to crime by aiding and
encouraging. What constitutes such aid or encouragement?
Mens Rea for Complicity
Accomplices act might differ from Principals but she should manifest the same mens
FosterBoth perpetrator and accessory possess the mental state required for the
commission of the crime.

MPCrequires accomplices act with purpose of promoting or facilitating commission of

the offense.
o Intent to aid or encourageinvolves knowledge about principals criminal aims +
expectation/hope ones actions will promote those aims
Most jurisdictions require (1) accomplice intent to aid/encourage offense (2) accomplice
share mental element of the offense.

When D knows actions will aid in crime but does not share criminal purpose
Three types of scenarios
o D is indifferent to crimes success
o D helps but only to incriminate principal
o Is careless
Intent to aid or encourage
Mental element of offense standards
State v. Ochoa (accomplice: aiding and abetting, intent)
Facts: Sheriff M.R. Carmichael was killed while walking a prisoner, Esiquel Navarro, from
the courthouse to the jail. When Carmichael exited the courthouse, there was an angry
crowd of people waiting outside, who all felt that Navarro should be released. Leandro
Velarde, Manuel Avitia, and Juan Ochoa (defendants) were in the crowd. As Carmichael
pushed through the crowd while pulling along Navarro with the help of his deputy sheriff,
Hoy Boggess, a melee ensued. Members of the crowd reached for Navarro to free him,
Avitia pulled out a gun from his pocket, and Boggess threw a tear gas bomb into the
crowd and was immediately struck over the head and knocked unconscious. Avitia and
Ochoa were near Boggess when he was hit but it was never determined who initially
struck him. The blow also knocked Boggesss gun to the ground, and two in the crowd
ran toward it to grab it, although it is not clear which two. Additionally, after Boggess
went down, Avitia and Ochoa continued to beat and kick him. Right after the tear gas
went off, a shot was fired and this prompted more shots being fired, approximately 12 to
15 in all. When the shooting stopped, Avitia was seen running away with a gun in his
hand. In the end, the shooting had killed Carmichael and when the bullets were extracted
from his body it was found that they were shot from Boggesss gun, which Boggess had
never fired. The gun was never recovered and it was never determined who fired the
shots that killed Carmichael.
The defendants were charged with second degree murder.
They are convicted.
They appeal.
o Question: do facts support second degree murder here?
o AG has two theories
One of the appellants actually shot and killed Sheriff Carmichael
Appellants aided or abetted the person who actually shot and killed Sheriff
o New Mexico Law

Does not distinguish between accessory before the fact, principal, and
between principals. Everyone concerned who directly commits offense OR
procures, counsels, aids, or abets commission is to be prosecuted, tried, and
punished as a principal.
Evidencecommunicating from one individual to another; by acts,
conduct, words, signs, other means calculated to make known
commission of offense has aiders support or approval
o Mere presence and mental approbation without approval is
Aiding and abetting
o Sharing criminal intent with the principalcommon purpose,
community of purpose, partnership in the unlawful undertaking.
Must be partnership, not independents.
Evidencemust prove D have knowledge of
intention/purpose of principal to commit assault
o Inference of sharing intent
Rule is once it becomes known that another member of
party is employing a deadly weapon, D is exposed to
inference of sharing intent if he continues participation.
State does not need to show who actually fired the shot if
D aided/abetted the one who did.
Everyone in the group is equally culpable, subject to
prosecution, trial and punishment as principals.
No evidence sufficiently links him with unlawful design of
Carmichaels killer. Last evidence is he was in the crowd a few feet
away from Boggess. Not shown to have taken part in assault.
Avitia and Ochoa
Intent is established after the first shot was fired. Even if they didnt
know before, they do now.
If you know deadly weapon was or is going to be used and help, then
guilty as aiders/abettors. Aider adopts criminal intent of principal.
Bogess is deputy of sheriff. He is expected to come to Sheriffs aid in
peril. Attacking Boggess leaves jury to infer they not only shared
intent of killer, but aided/abetted him in undertaking.
A reasonable jury could also find D saw sheriffs assailant draw/aim

State v. Tally
Aiding and abetting
o Aidto assist, to supplement efforts of another
o Abetto bait or excite and animal; to incite or encourage a person to commit a
crime; a person in present or in the neighborhood who incites another to commit a
crime, thus becoming principal to the offense.

Principals and Accessories

Modern Approachimposes equal liability for accomplices and principals
Common Law
o Principals
Principal 1st degreeactor or actual perpetrator
Principal 2nd degreeperson who was present at commission of felony and
provided assistance or encouragement. Did not actually commit crime.
Presence could be actual or constructive
o Actual presence
o Constructive presencelookout or keeping guard some
distance from crime scene
o Accessory
Accessory before the factsomeone who commanded, counseled,
encouraged, or aided the principal (1st) in committing felony, but was not
actually or constructively present at the scene of the crime
Accessory after the factplays no role in preparation. Assists felon in
eluding capture or destroying evidence. (misprision of felonynondisclosure
or concealment of a known felony)
See 18 USCA 4; interpreted to apply to affirmative conduct (US v.
Modern Statutesmostly eliminate common law distinctions, except for accessory after
the fact.
o 18 USCA 2
commit offense; aid/abet/counsel/command/induce/procure commission
punishable as principal
willfully cause act to be done that is offense against US is punishable as
o MPC 2.06
Eliminates common law distinctions.
Accomplish can be convicted regardless of whether principal is convicted,
tried, or apprehended
o MPC 242.3hindering apprehension or prosecution by harboring criminal,
providing means of escape, destroying evidence, tampering with witness, providing
false information to police.
o MPC 242.4aiding consummation of crime by safeguarding proceeds or
converting them into negotiable funds
o MPC 242.5compounding crime by accepting money in exchange for refraining
to report
Gains v. StateGains, Williams and Youth enter bank and commit robbery. Court says no jury
would infer BRD that Williams aided in robbery.
State v. WaldenD convicted of assault with deadly weapon inflicting serious bodily injury
because she was present when boyfriend struck her one year old son with a belt. DC says aiding
and abetting. SC NC upholds convictions.
Failure to resist assault expresses consent

State v. Rundle
D charged with violating criminal statute punishing intentional abuse by stopping wife
from beating child. Prosecution did not charge under 948.03(4), but State SC says
passage of statute meant liability is to be exclusively under 948.03(4). Nothing prevents
charging under both statues.
Mens Rea of Complicity
What kind of culpability does a person have to exhibit to be guilty as an accomplice?
Shared mental element of the offense: Mens rea for an accomplice should be the same as
it is for a principal
o Problem: accomplices conduct is different from the principals
Intent to aid or encourage
People v. Beemanintent to aid or encourage standard
Wilson v. Peopleshared mental element standard
State v. Etzweilertension between intent to aid or encourage & mental element of offense;
application in cases of unintended harm (negligence)
People v. Beeman (aiding and abetting, intent)
Facts: James Gray and Michael Burk robbed Timothy Beemans sister-in-law.
Beeman (defendant) was charged with aiding and abetting Gray and Burk in the robbery.
o Gray and Burk testified that Beeman was involved in planning the robbery,
including them giving information about the layout of the victims house, what was
inside, what to wear to be able to talk their way in, and agreeing to sell some of the
stolen goods.
o Beeman testified that although he did give some of this information, he did not do
so with an intent that Gray and Burk commit the crime. He also testified that when
he was told about the robbery plan, he told Gray that he did not want to be
o Grays testimony confirmed that Beeman had said before the robbery that he did
not want to be a part of it.
o Although Beeman was found with missing jewelry, he claimed that he had only
taken possession of it in order to return it to his sister-in-law.
o Information from Beeman led to the initial arrest of Gray and Burk.
Beeman was convicted of aiding and abetting Gray and Burk in the robbery.
Beeman appealed.
o Beeman argues jury instruction did not include a requirement that Beeman
intended his actions would aid in the commission of the robbery.
o Rule
Sound law: Complicity requires (1) aider and abettor rendering aid (2) with
intent or purpose of either committing OR of encouraging OR facilitating
commissions of the target offense
Jury Instructions


Principalsthose who with knowledge of the unlawful purpose of the

one who does directly/actively commit/attempt to commit crime
aid/abet in its commission OR who advise/encourage its commission
Aiding/Abettinga person aids/abets commission of crime if with
knowledge of the unlawful purpose of perpetrator he
aids/promotes/encourages/instigates by act/advice the commission of
such crime.
o Appellant argues CA jury instructions substitute element of knowledge of
perpetrators intent for element of criminal intent of the accomplice. Would allow
jury to convict him without finding same criminal intentdeprivation of due
process and equal protection.
Appellant says error requires reversal because it removes a material issue
from the jury.
o People argue standard reflects CA law which requires not more than aider/abettor
have knowledge of perpetrators criminal purpose + do voluntary act that aids
People say this adequately protects against acts under duress and
inadvertent acts because these wouldnt fall under knowingly aided.
o Court says aider/abettor must have criminal intent to be convicted of a criminal
offense. In case of encouraging/counseling, this means purpose/goal of furthering
the encouraged result.
Rule should be: complicity(1) knowledge of criminal purpose of the
perpetrator (2) with an intent/purpose either of committing, encouraging,
facilitating commission of the offense (3) act/advice promotes, encourages,
instigates commission of crime
When offense includes intent to do some act beyond actus reus of the
crimeaider/abettor must share specific intent of the perpetrator
Liability extends to natural and reasonable consequences of acts he
knowingly/intentionally aids and encourages.
o State says instructional error was harmless.
o Appellant argues although he acted in ways which in fact aided criminal
enterprise, he did not act with INTENT.
o Court says this is NOT a harmless error, its reversible.
Reverse convictions.

State v. Peoni (Majoritypurpose)

Facts: D sells counterfeit money to Regno, who sells counterfeit money to Dorsey. Peoni
charged as accessory to Dorseys possession of the money. Though P had reason to know
R would sell the money to a third party, prosecution could not show P intended or desired
R would sell the counterfeit money again.
DC convicts.
2 COA reverses.
o Government argues possession of second buyer was natural consequence of Ps
original act.
o Court disagrees. Complicity doctrine requires D associate himself with the venture
must participate in it as something he wishes to bring about, must seek action to
make it succeed.

Backun v. US (Minorityknowledge)
Facts: D knowingly sold stolen silverware to a third person Z. Z then transports
silverware out of state to sell it. B wanted Z to sell the silverware and knew Z would do so
out of state.
Judge upholds Bs conviction using the knowledge test.
o Guilt as an accessory depends not on having a stake in the outcome, but on
aiding and assisting the perpetrators. Making a profit by furnishing to criminals
means to carry out their crimes aids them just as much as being actual partner.
Seller cannot ignore purpose that purchase is made if he knows of the purpose.
MPC 2.06 liability for conduct of another; Complicity (purpose)
A person is an accomplice of another if
o Has purpose of promoting/facilitating commission of offense
Solicits other person to commit it OR
Aids/agrees/attempts to aid other person in planning or committing it
US v. Giovanetti (ostrich rule)
Facts: J owns house which he rents to O who runs a voluminous gambling business. J is
prosecuted for aiding/abetting the gambling ring.
J denies he knew house was being used for gambling. Witness for government says J
knew enough to infer that O wanted house for gambling.
Trial Court
o Willful ignorance/ostrich instruction: you may infer knowledge from combination
of suspicion and indifference to truth. If person had strong suspicion things were
not what they seemed OR someone withheld important facts yet shut his eyes for
fear that he would learn, jury may infer act was knowingly done.
7 COAreversed.
o Ostrich ruleD must actively prevent the truth from being communicated to him.
He must act to avoid learning the truth.
o Here, J merely failed to display curiousity.
Dual crime casesin some jurisdictions, a purposive accomplice to one crime can become liable
for a second crime committed by a principal or co-accomplice where she is merely negligent
with respect to the possibility of that second crime.
o A person is accomplice if: With intent of promoting/facilitating commission of
crime, he solicits other person to commit crime OR aids/agrees to aid/attempts to
aid other person in planning/committing crime. Person is accomplice to any crime
committed which was reasonably foreseeable consequence of his conduct.
Even without felony-murder rule, accomplice could be liable for unforeseen killing committed
by principal during armed robbery. Would not escape liability even if he did not participate in
actual killing but waited as lookout.
People v. Kessler (attempted murder)


Facts: D waits in car outside a tavern while two unarmed companions enter building to
commit burglary. Inside, one shoots the owner and wounds him. Later they flee and one
of them shoots a police officer.
Ds convicted for attempted murder by DC.
Ds conviction was reversed by Appellate Court.
SC IL reinstated conviction.
o Where one aids another in planning/commission of an offense, he is legally
accountable for conduct of person he aids.
Conductany criminal act done in furtherance of planned/intended act.
o D, by taking part in burglary, is criminally liable for attempted murder.

State v. Carson (TN)

Facts: C with G and S decide to rob a tv repair store. C waits in car while G and S enter
store. G and S hold two employees at gunpoint. They leave with loot and fire three shots.
All three charged with robbery and aggravated assault.
TN court affirms conviction.
o If two persons join in purpose to commit crime, each is guilty as principal for
crimes principal committed AND each is guilty as other crime committed by other
in pursuance of common purpose OR as natural/probable consequence of it.
FacilitationNY uses true purpose test for accomplice liability. Also has lesser crime of criminal
NY Penal Code 115.05
Criminal facilitation second degreewhen believing it is probable he is rendering aid to
person who intends to commit Class A felony, one engages in conduct that provides
person with means/opportunity for commission thereof AND which in fact aids such
person to commit the Class A felony.
o Criminal facilitation is a Class C felony.
Facilitation v. Complicity
Facilitationa crime of risk-taking that can incriminate the facilitator even if potential
principal never proceeds to commit the expected offense
Complicityrequires principal commit an offense
Criminal facilitation
o Any person who intentionally, knowingly, OR recklessly provides a handgun to
person under 18 commits crime of unlawfully providing/permitting a juvenile to
possess a handgun.
76972 n.2 (stop before n.3)
Combined Standards and Unintended Harm
Most jurisdictions that require shared mental element of the offense ALSO require intent to aid
or encourage.

New York
Complicitywhen a person engages in conduct which constitutes an offense, another
person is criminally liable for such conduct when, acting with the mental culpability
required for the commission thereof, he intentionally aids such person to engage in such
This could allow for accomplice liability in negligence crimes.
Question is does intent to aid mean intent to aid in the offense of causing the proscribed
result OR intent to aid some particular conduct that turns out to produce that result?
State v. Etzweiler (common law accomplice liability, NH statute, cannot be accomplice
in negligent homicide)
Facts: Bailey was drunk, but Etzweiler (defendant) gave Bailey the keys to Etzweilers car
anyway for him to drive home. On the way home, Bailey crashed into another car and
killed two people.
Etzweiler was charged as being an accomplice to Baileys negligent homicides.
o Etzweiler filed motions to quash the charges.
Lower court transferred the questions to the Supreme Court of New Hampshire.
o Rule
Negligent homicideD negligently causes death. State must establish D
failed to become aware of substantial/unjustifiable risk that his/her conduct
may cause death of another person. Risk must be of nature that failure to
become aware of it is a gross deviation from a reasonable persons conduct
under the circumstances.
Common lawan individual who did not actually engage in felonious
conduct could be criminally liable if he was present during the commission
of crime, aiding/abetting the perpetrator.
Under common law, Etweiler could not be guilty because he was not
actually or constructively present during commission of offense.
NH Accomplice Liability Statute
Person is accomplice if: With purpose of promoting/facilitating
commission of offense he aids such other person in
planning/committing it. Accomplice must act with kind of culpability
with respect to that result that is sufficient for commission of offense.
Accomplice liability ought not extend beyond criminal purposes
Under statute, accomplice must aid primary actor in substantive
offense with purpose of facilitating substantive offensehere the
substantive offense is negligent homicide. E cannot intentionally aid B
in a crime B was unaware he was committing. An individual may not
be accomplice to negligent homicide under NH law.
o Indictments against E must be quashed.
Abetting negligence

NH statute based upon MPC.

o 2.06(3)(1): Accomplice if with purpose of promoting/facilitating commission of
offense he (1) Solicits other person (2) Aids/agrees/attempts to aid person in
planning/committing it
o 2.06(4): When causing a result is an element of offense, an accomplice in conduct
causing such result is an accomplice in commission of offense, if he acts with kind
of culpability with respect to that result, that is sufficient dor the commission of
the offense.



Overview of justification and excuse: CB 513520 & MPC Article 3.

Justificationactor committed the act, but not wrong

Excuseactor committed the act and its wrong, but actor has a defensible reason
In both justification and excuse, the actor concedes that she has committed a criminal act with
the requisite mens rea. But the actor also offers plausible argument of desert or utility as to
why she should not suffer punishment.
Distinguishing between Justification and Excuse
Wrongness of Ds conduct
Relative importance of legality I the definition of each type of defense
Allocation of burden of proof
Treatment of third parties
o Actor can claim justification when she has advanced a social interest or vindicated
a right of sufficient weight that the criminal law should neither disapprove nor
discourage her conduct. Though the actor fulfilled definition of criminal offense,
she did no wrongit denies the wrongfulness of the particular conduct.
o Excuse denies actors responsibility for the conduct.
Circumstances so limited voluntariness that she is not morally blameworthy
Circumstances so limited voluntariness that she could not have been
deterred from it
o Justification supplements statutory offenses to complete the criminal laws
definition of our legal duties. They help legal actors make responsible choices,
exercise their rights, and conform their behavior to the law.
Conduct rules
Decision rules
o Embodies tension between discretion required for judging Ds conduct AND
obligation to inform public of what conduct is illegal.
o Need prospectivity, though not specificity

o Premised upon actors incapacity to make responsible choices under the
Not conduct rules for actors
Decision rules for courts and juries
o Less need to ensure specificity, publicity, and prospectivity

Burden of Proof
Prosecution must bear burden of beyond a reasonable doubt on all defining elements of
an offense though NOT on defenses of Justification and Excuse
Most jurisdictions place burden on prosecution on issue of wrongdoing and justification
o Until prosecution has proven D has committed offense without justification, D
hasnt been established to have done anything wrong
o Benefits police officerpresumption their use of force WAS justified
Third Parties
Justifications exonerate conduct as right
o Third parties may justifiably assist, and may not interfere with, justified conduct
Excuses exonerate persons blameworthiness for conduct.
o Third parties may not assist, and may interfere with, excused conduct.
Could be liable as accomplice unless she also has an excuse.
Justification, Excuse, and the Purposes of Punishment

Its hard to distinguish between justification and excuse.

o Recall: Punishment is justified on ground it controls crime and achieves retribution
Utilitarian Perspective
o Theory
Purpose is to achieve optimal level of crime controlshould deter harmful
conduct without imposing more harm than it prevents.
Theres only one choice or right: Maximizing utilityachieve greatest social
benefit for the lease possible cost.
Not all harmful behavior should be punished. Punishment is beneficial
only if conduct is harmful and punishment can significantly reduce it.
Draconian punishment may be justified under maximizing utility.
o Utilitarian justification
Utilitarians will justify offenses necessary to prevent a greater evil. Its
about maximizing the general good over her own.
Self-defense is doubtful
Duty to retreat over killing assailant in self-defense
Use of force must be proportionate to interest defended
Cannot kill in defense of interest less weighty than life itself
Can clearly take one life to save several; may NOT kill several lives to
defend one
Not clear if its justifiable to take one life to save another
o Utilitarian excuse
Doubts as to justification do not preclude excusing defensive force.
Excuses are approved because

High cost to actor of abstaining from conduct

o Defense of self or loved ones, duress, necessity
Actors incapacity to discern or act in her best interest
o Insanity, addicion
Undeterrable offendersmay be arguments against excusing them. As a
matter of policy if we excuse the undeterrable no one ever needs to be
Retributivist Perspective
o Theory
Only legitimate reason to punish is that punishment is deserved because of
responsibility for wrongdoing.
Conduct is wrongful if it violates someones rights
Conduct is justified if the actor has a right to engage in it.
Retributivists look at whether choice falls within the actors rights. If it does,
its justified.
Distinguish from utilitarianismthe only right choice is one that
maximizes utility
o Retributivist justification
Likely to see many offenses as justified that a utilitarian would not
Necessary forcejustified in defense of any right, no matter how
insignificant against the wrongdoer
May be more committed that defense BE rather than appear
No duty to retreat
Reasonable but false beliefsince belief is false, it violates rights of
innocent. Cannot be justified. But because its based upon a reasonable
mistake, it may be excused.
More likely than utilitarian to justify necessary defense. Less likely to justify
lesser of two evilscannot justifiably violate rights of others to spare
ourselves or society a greater cost.
o Retributivist excuse
Retributivists would excuse those who cannot fairly be blamed for wrong
acts they perpetrate rather than merely excusing those who are difficult to
Includes offenders who commit offense because of fear of an imminent
threat to safety of offender/loved one
Does not justify or excuse offense necessary to prevent a greater evil
Reasonable Person
o Jurors are asked: whether a reasonable person in the defendants situation would
have been aware of some risk.
Excuse: was mistake reasonable?
Was D provoked? Judge Ds actions to that of average or reasonable person.
Reasonable Utilitarian
o Justified
Would the action taken have appeared best at the time committed to a
person who had made the socially optimal investment in information?
Reasonable personan optimally informed person
o Excused
Whether it was a deterrable choice?

Reasonable personthe average person

Problemit may not be possible to distinguish between the person who was
not deterred from a person who could not be deterred.
Possible solutionask whether similar people in similar circumstances
would likely have been deterred by the threat of punishment
o Reasonable personaverage person with defendants
characteristics in defendants circumstances
Reasonable Retributivist
o Justified
Reasonable person is irrelevant to justification. Justification ameans acting
within ones rights, not doing what a reasonable person would have
mistakenly though was within her rights.
o Excused
Reasonable person is relevant to excuse.
Retributivism says punishment is deserved for acts manifesting bad
Excuse precludes inference from bad act to bad character.
Question: whether a reasonable person could have acted as D did facing
same circumstances.
Reasonable persona person of good character
Retributivism and the Insanity Defense
o Insanity does not require any test of reasonableness of Ds conduct.
o Retributivists prefer to excuse based on circumstances external to Ds character.
The problem here is in insanity, D is excusing herself on the basis of her own
flawed character.
o How to distinguish sanity from insanity?
Generally goes to medical experts.
External causes for Ds mental disorder
Congenital physiological causes
Part of Ss characteristic pattern of behaviorthis one is tougher; it
does not answer moral question of whether psychological
characteristics should exculpate or inculpate the defendant

Combining Justification and Excuse

Justification and excuse are difficult to distinguish
Article 3 of MPC defends drafters decision NOT to draw a bright line between
justification and excuse.

Necessity and duress: CB 573581, 585591, 591606 & MPC Article 3.

Queen v. Dudley & Stephens (necessity not foundchoice of evils)

Facts: Thomas Dudley and Edwin Stephens (defendants) were on the crew of an English
yacht, along with fellow seamen Brooks and Richard Parker. Due to a storm, the men
were lost at sea in an open boat for approximately twenty-four days. They had no water
except for occasional rainwater, and little food. After over a week without any food,
Dudley and Stephens approached Parker, who was sick and in a much weaker state, and
slit his throat. The three remaining men fed off Parkers body for four days until a passing
ship rescued them.

Dudley and Stephens were put on trial in order to determine whether the act of killing
Parker was murder.
o The jury determined that the men would not have survived to the time of rescue if
they had not fed off Parkers body and that, at the time, it was reasonable to
assume they would die of starvation before they were rescued.
o The jury also determined that Parker would likely have died before the other three
The jury made these conclusions of fact but was ultimately unable to reach a verdict as to
Dudley and Stephens culpability.
o The jury instead submitted a special verdict requesting the court to determine
Dudley and Stephenss culpability based on its findings of fact.
Question: whether killing under circumstances set forth in verdict is or is not murder?
D argues that classical definitions of murder imply that in order to save your own life, you
may lawfully take life of another when other is neither attempting or threatening yours,
nor is guilty of any illegal act whatever towards you.
o Court says definitions do not say this.
Lord Halesays homicide may be justified on grounds of necessity in cases
of self-defense: taking life of another for the safeguard of ones own. Limited
to situations created by compulsion or necessity.
i.e. if you are attacked and in peril of death and cannot escape, you
might be justified in killing.
But in Englanda person under necessity for want of victuals/clothes
cant just stealthats a felony and crime punishable by death.
Extreme hunger does NOT justify larceny. Since murder is more
severe, its inferred that it doesnt justify that either.
US v. Holmessailors have no right to throw passengers overboard to save
their own lives.
Lord Baconthree kinds of necessityconservation of life, necessity of
obedience, and necessity of the act of God or stranger.
Lawyers question soundness of this dictum. Its just his quirky
opinion, not the law at present.
Its conceded that killing the boy is murder unless it can be justified. Also no excuse is
claimed in this case. The argument is that killing was justified under necessity.
Court looks at morality
o Self-preservation is a duty, but so is self-sacrifice for others
o GB is a Christian country and must be an example.
o The question is whether its more necessary to kill the boy over anyone else
answer is no.
Court says judges must do their best, then leave to Crown to exercise mercy if judgment
is too severe.
Court finds prisoners act willful murder. No legal justifications. Courts unanimous
opinion is Ds are guilty of murder.

MPC 3.02 Justification Generally: Choice of Evils

Conduct that the actors believes necessary to avoid harm/evil to himself/another is
justifiable provided that:
o Harm/evil sought to be avoided is greater than that sought to be prevented by law
defining offense charged AND

Neither Code nor other law defining offense provides exceptions/defenses dealing
with specific situation involved AND
o Legislative purpose to exclude justification does not plainly appear
When actor was reckless/negligent in bringing about situation, justification afforded by
this section is unavailable in prosecution for offense where recklessness/negligence
suffices to establish culpability.

State v. Warshow (necessity)
Facts: Warshow (defendant) was one of a group of demonstrators who were trying to
prevent the reopening of a nuclear power plant that had been temporarily closed for
repairs and refueling. Warshow and a number of other demonstrators were arrested.
Warshow and demonstrators charged with unlawful trespass after they refused to leave
the private property surrounding the plant.
The trial court refused Warshows request to present a defense of necessity supported by
evidence of the hazards of low-level radiation, nuclear waste buildup, and nuclear
accident created by the operation of the power plant.
The court also refused Warshows request for a jury instruction on the defense of
Warshow was convicted.
Warshow appealed to the Supreme Court of Vermont.
o Barney
Question: does the defense of necessity apply here?
Necessityadmit the criminal act, but claim justification. Application limited
to acts directed to prevention of harm that is reasonably certain to occur.
VermontNecessity requires:
o [clean hands] Must be situation of emergency without fault on
part of actor
o [imminence] Emergency must be imminent/compelling to raise
reasonable expectation of harm, either directly on actor OR
upon those he was protecting
o [inescapability] Emergency must present no reasonable
opportunity to avoid the injury without doing the criminal act
o [seriousness injury] Injury impending from emergency must
be sufficiently serious to outmeasure criminal wrong.
No doubt Ds wanted to call attention to dangers of low-level
radiation, nuclear waste, nuclear accident. But low level
radiation/nuclear waste NOT types of imminent danger classified as
emergency sufficient to justify criminal activity.
o Imminentdanger must be/reasonably appear to be
threatening to occur immediately, near at hand, impending
Danger here is long range, not immediate. Ds have time
to exercise options other than criminal.
Specter of nuclear accident does not suffice. Imminence
does not justify speculative and uncertain dangers.

Hill (concur)
Theres a policy choice determined by executive and legislature.
Allowing necessity defense would allow jury to re-determine questions of
policy already decided by legislative branches. This contravenes structure of
Majority analyzes elements before deciding on applicability. Hill thinks its
not even applicable.
Dissent says Ds offer was sufficient to show not only imminent danger but
also failure of regulatory scheme. Hill disagrees.
Hill thinks defense of necessity is foreclosed by deliberate legislative policy
No error.
Billings (dissent)
Majority says danger of low-level radiation/nuclear waste not imminent.
Majority dismisses portions of proof dealing with threat of nuclear accident
calling them speculative and uncertain.
Ds say there was reasonable belief it would have been emergency had they
started reactorvery good chance of an accident, no insurance or very little.
Defects in cooling system could have caused meltdown.
Ds also wanted to show they exhausted all alternative means of preventing
startup of plant and immediate catastrophe it would bring.
Also dissents from concurring opinion. Legislative intent has no bearing in
this case.
Ds are entitled to present evidence on defense of necessity. Denying them
this denies them a fair trial on basis of unpopular views.

Defense of duress differs from necessity and lesser evils. It always involves a response to a
human threat rather than a natural danger.
Duress is an excuse. It deflects responsibility for coerced wrongful act from perpetrator to
person who coerced it. Basically, fear renders perpetrator blameless or undeterrable.
Duress v. defensive force
Duressoffense is committed to further criminal project of aggressor
Defensive forceoffense is committed to resist criminal project of aggressor
Defense fails if Ds offense was too great OR threat facing her was insufficient. Does not excuse
killing of innocent person even if accused acted in response to immediate threats.
Common lawduress requires alleged coercion involved imminent threat of death/serious
bodily harm.
State v. Crawford (KS Compulsion, Federal Duress)
Facts: At the time of this case, 21-3209 of the Kansas Statutes provided that a
defendant was not guilty of a crime, other than murder or voluntary manslaughter, if he

acted under compulsion or a reasonable belief that he or a member of his immediate

family was threatened with imminent death or serious bodily harm. The statute further
provided that this defense did not apply if the defendants willful or reckless conduct
made it likely that he would be put under compulsion or threat. Crawford (defendant)
was a drug addict who owed money to Bateman for cocaine purchased on credit.
Bateman asked Crawford to commit robberies in order to pay the debt, and Batemans
girlfriend gave Crawford a gun. While the three of them were parked outside a hospital,
Bateman told Crawford to rob a woman entering the parking lot. The woman fled and
gave Crawford her wedding rings, after which Crawford approached Monhollon, entered
Monhollons car at gunpoint, robbed him and drove away with Monhollon at the wheel,
leaving Bateman and his girlfriend behind. Crawford then robbed Monhollons house and
two other homes, keeping Monhollon at gunpoint, and later forced Monohollon to
withdraw cash from an ATM. Finally, Crawford put Monhollon in the trunk of the car and
drove to a motel where he met Bateman, who was dissatisfied with the value of the stolen
goods and told Crawford to commit another robbery. Monhollon eventually escaped from
the trunk and contacted the police.
Crawford was arrested and charged with multiple counts of aggravated robbery,
aggravated battery, aggravated burglary, and kidnapping.
o Trial
Crawford argued that Bateman had threatened to kill him and his son and
that Bateman belonged to the Moorish Americans, a dangerous religious
Crawford also introduced expert testimony that he suffered from drug
dependency, depression, and a personality disorder that made him
dependent and fearful of Bateman.
The court instructed the jury on the defense of compulsion, quoting from
21-3209 and adding that the mere threat of future injury did not constitute
an imminent threat sufficient to constitute a defense.
o Crawford was convicted on all counts.
o Crawford appealed to the Supreme Court of Kansas.
Crawford argues DCs instruction on compulsion was erroneous.
Kansas statute
o Person not guilty of crime other than murder or voluntary
manslaughter by reason of conduct which he performs under
compulsion/threat of death/great bodily harm if he reasonably
believes death/great bodily harm will be inflicted upon him or
his spouse/parent/child/brother or sister if he does not perform
such conduct
o Defense not available to one who willfully or wantonly places
himself in a situation which it is probable he will be subjected
to compulsion/threat
DC instruction
o It is a defense if he acted under compulsion/threat of imminent
infliction of death/great bodily harm and he reasonably believed
that death/great bodily harm would have been inflicted upon
him or upon his child had he not acted as he did.


Defense not available to one who willfully/wantonly

placed himself in situation which it was probable that he
would have been subjected to compulsion/threat
o Compulsion/coercion which will excuse commission of criminal
act must be (1) [imminence] present/imminent/impending and
of such nature as to induce well-grounded apprehension of
death/serious bodily injury if act is not done; (2) [inescapable]
must be continuous and no reasonable opportunity to escape
compulsion without committing crime. Threat of future injury
not enough particularly after danger from threat has passed.
Crawford contests DCs addition of third paragraph, particularly last
sentence. Says there is real possibility that jurors would have concluded not
guilty had they been correctly instructed.
Imminentdoes not necessarily exclude threat of future infliction of
o State v. Myers & State v. Harrisondisallow threat of future
harm as a defense. Crawford argues they are not controlling
because here compulsion is NOT due to physical presence at
crime scene of threatening person
State argues added language was approved in Harrison which cited State v.
Milumthreats airmed at indefinite time in the future not imminent
o General rulecompulsion requires showing that accused
without reasonable opportunity to escape or withdraw from
criminal activity.
State v. Myerscourt says evidence does not establish compulsion defense.
Compulsion must be present, imminent, and impending.
It must be continuous
No reasonable opportunity to escape compulsion without committing
the crime.
Evidence has same shortcomings as earlier casesrequired element
of imminent threat is missing, compulsion is not continuous, and there
were opportunities for escape.
Question: whether circumstances which generally would not constitute
compulsion may establish defense due to interpersonal dynamics of D and
the compelling person?
Crawford says his fear of danger to himself and son was reasonable because
threats had been made against him/his son by ruthless drug dealer with ties
to a network of violent people. Reasonableness should consider evidence of
his subservience to Bateman and perception of options for escaping from
Batemans control being limited, chemical dependence/psychological state.
Crawford points to State v. Hundley which found improper jury
instruction prevented jury from considering critical factors when
determining reasonableness.
ProblemCrawfords theory is weak because the threat to him/his son
was indefinite.

Crawford says use US v. Contento-Pachons approach

o Duress(1) immediate threat of death/serious bodily injury (2)
well-grounded fear that threat will be carried out (3) no
reasonable opportunity to escape threatened harm
Court says facts are distinguishable. Element of reasonableness of the
fear was not addressed. Federal statute is different from Kansas
statute which says if you willfully or wantonly place yourself in
compulsion situation, defense is not available.
o By application of KS statute, compulsion is not available to
Crawford, who placed himself in relation to Bateman.
DC instruction is correct. Not clearly erroneous.

MPC 2.09 Duress

(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an
offense because he was coerced to do so by the use of, or a threat to use, unlawful force against
his person or the person of another, which a person of reasonable firmness in his situation
would have been unable to resist. [cf. Restatement Torts 2d 11, 283]
(2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a
situation in which it was probable that he would be subjected to duress. The defense is also
unavailable if he was negligent in placing himself in such a situation, whenever negligence
suffices to establish culpability for the offense charged.
(3) It is not a defense that a woman acted on the command of her husband, unless she acted
under such coercion as would establish a defense under this Section. [The presumption that a
woman, acting in the presence of her husband, is coerced is abolished.]
(4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this
Section does not preclude such defense.
US v. Contento-Pachon (duress/necessity, the requirements of immediate threat and
Facts: Juan Manuel Contento-Pachon (defendant) was a taxi driver in Bogota, Columbia.
One of his passengers (Jorge) offered to hire him as a private driver. Contento-Pachon
agreed to meet him to discuss the details. Rather than discussing the job, Jorge asked
Contento-Pachon to transport cocaine-filled balloons to the United States. When
Contento-Pachon refused, Jorge recited details about Contento-Pachons private life that
Contento-Pachon had never divulged to him. Jorge threatened Contento-Pachon that if he
refused to cooperate, his wife and child would die. Contento-Pachon agreed to cooperate.
About three weeks later, Contento-Pachon swallowed 120 balloons of cocaine and
arranged to land first in Panama and then the United States. He was told that he would
be watched at all times, and that his failure to follow directions would lead to the deaths
of him and his family. Prior to the trip, Contento-Pachon did not go to the police because
he feared they were corrupt. He did not go to police in Panama for the same reason, and
because he feared for his familys safety. Upon arriving in the United States, customs xrayed Contento-Pachons stomach and found the cocaine.
Contento-Pachon was charged with unlawful possession of narcotics with intent to
o Contento-Pachon attempted to submit the defenses of duress and necessity.

The trial court excluded bothD had shown neither immediacy of threat nor
COA held D had presented jury question as to whether he had been under duress.
Coyle (dissent)

Williams v. StateD convicted of attempted robbery. COA says duress not available because
Williams prior conduct contributed mightily to the predicament which he later found himself.
Duress not available when actor recklessly places himself in a situation where it was probable
he would be subject to duress.
In re RomeroCA court held Debra Romero convicted of robbery and attempted robbery was
denied effective assistance of counsel because her lawyer did not present evidence that her
actions were result of battered women syndrome.
State v. Harvillcourt permitted jury to consider evidence of threats in cases of duress by
battered women. Court says threat can be explicit OR implicit.
2. Defensive force (in defense of self): CB 52161 & MPC Article 3.
Defensive force, necessity, duressAn offense should not be punished if it was committed to
avert some other harm
Necessary force
o Self defense
o Defense of another
o Defense of property
o Law enforcement
Choice of evilsa utilitarian justification
Necessitya claim of excuse based on idea that imminent danger to D or loved one gave
D no choice but to commit the offense. According she should not be held responsible for
her offense.
Duressa claim that Ds capacity to choose was impaired by serious, imminent threat of
harm from another person
Defensive Force
People v. La Voie (justifiable homicide)
Facts: La Voie (defendant) was stopped at a traffic light on his way home from work at
approximately 1:30 a.m. when another vehicle hit his rear bumper. There were four
drunk men in the vehicle, none of whom La Voie knew, who had decided it would be
amusing to ram his car and force it forward. The vehicle then accelerated and
intentionally moved La Voies car ahead through the red light. La Voies brakes could not
stop the continued force, leaving a trail of skid marks. When La Voie was finally able to
stop the car, he got out, armed with a gun, which he had a permit to carry. The four men
also got out and approached La Voie, making violent threats and using profane language.
One of the men continued toward La Voie threateningly, and La Voie shot him, ultimately
killing him.
La Voie was charged with murder.
o Following the presentation of evidence, La Voie moved for a directed verdict of not

The trial court granted the motion, concluding that the record clearly showed that La
Voies act amounted to justifiable homicide.
The People (plaintiff) filed a writ of error and petitioned for an opinion disapproving the
directed verdict from the Supreme Court of Colorado.
o Law of justifiable homicide (Young v. People)when a person has reasonable
grounds for believing, and does in fact actually believe danger of his being killed or
of receiving great bodily harm is imminent he may act on such appearances and
defend himself even to the extent of taking a human life when necessary, although
it may turn out appearances were false or although he may have been mistaken as
to the extent of the real or actual danger.
o ApplicationD had right to defend himself against threatened assault of those
whose lawlessness and disregard of his rights resulted in the justifiable killing of
one of their number.
o Judgment is affirmed.

People v. Gleghorn (justifiable homicide, self-defense)

Facts: Gleghorn (defendant) lived in a house owned by Downes, who rented her garage to
Fairall. Fairall thought he had merely lent his stereo to Downes, whereas Downes thought
Fairall had agreed to give the stereo to her. When Downes did not return the stereo,
Fairall became enraged, broke into Downes bedroom, scattered her possessions, and let
loose her pet snake. Downes related Fairalls actions to Gleghorn, who broke into the
garage and threatened to set it on fire if Fairall did not come down from a loft where he
had been sleeping. When Gleghorn set a small fire, Fairall shot Gleghorn with an arrow
and wounded him. Fairall then came down from the loft, leaving his bow and arrow
behind, and tried to put out the fire. Gleghorn, angry over his wound, proceeded to beat
Fairall, breaking his jaw, knocking out several teeth, and inflicting other injuries.
Gleghorn was charged with assault likely to inflict serious bodily injury and battery for
inflicting serious bodily injury.
o The jury convicted Gleghorn on the serious battery charge but convicted him only
of simple rather than serious assault.
o Gleghorn moved for a mistrial on the ground that the two jury verdicts were
Gleghorn argued that, since he was only found guilty of simple assault,
Fairall had no right to use deadly force in retaliation, and Gleghorn himself
was entitled to defend himself against Fairalls potentially deadly bow and
arrow attack.
The trial court denied Gleghorns motion and affirmed the convictions.
Gleghorn appealed to the California Court of Appeal.
o CA PC 197 Justifiable homicide
When committed in defense of habitation, property, or person, against one
who manifestly intends or endeavors by violence or surprise to commit a
felony or against one who manifestly intends and endeavors in a violent,
riotous or tumultuous manner to enter the habitation of another for the
prupose of offering violence to any person therein or when there is
reasonable ground to apprehend a design to commit a felony or to do some
great bodily injury and imminent danger of such design being accomplished.
Not available for slight assaults

If original assailant makes felonious assault or has created

appearances justifying other to launch deadly counterattack in selfdefense, original assailant cannot kill other unless he has in good faith
declined further combat and notified the other he has abandoned the
When victim of simple assault responds in suddent/deadly
counterassault, original aggressor need not attempt to withdraw and
may use reasonably necessary force in self-defense.
o Self defensebased upon reasonable appearance of imminent peril to person
Mistakeact is justifiable even if person is mistaken in judgment as to
actual necessity; justifiable so long as no fault or carelessness on actors
If a person attacked defends himself so successfully that danger no longer
exists, there is no justification for further retaliation
Appellant argues since he committed only simple assault, he was legally justified in
standing his ground although he was the initial attacker and in utilizing lethal force
against Fairall.
Court says jury could reasonable infer
o Fairell acted reasonably on appearance his life was in danger
o Even if Fairell was unreasonable by shooting appellant with an arrow, and even if
appellant was justified in responding with deadly force, when appellant continued
to beat the attacker long after the attacker was disabled, this went too far.
No error.

Use of illegal weapons

May disqualify self-defense
However, most courts take a positive view of self-defense claims on this score (People v.
Many jurisdictions permit Ds to use deadly force to defend themselves rather than retreating
from a position where they have a right to be.
Exception: (Dawkins v. State) court refused to extend this rule to D using illegal sawed-off
State v. Leidholm (Self-Defense (Justified and Excused); battered woman syndrome
instruction allowed; when deadly force is necessary)
Facts: Leidholm (defendant) was in an unhappy marriage with Chester, her husband, in
which both parties abused alcohol and engaged in violent behavior. On returning home
from a party at which both of them had been drinking heavily, the two started an
argument which turned into a fight. Chester prevented Leidholm from calling a deputy
sheriff and repeatedly pushed her to the ground. After the fight stopped and they had
gone to bed, Leidholm got up, went to the kitchen, took a butcher knife, and stabbed
Chester to death.
Leidholm was charged with murder and tried in the McLean County Court.

At her trial, Leidholm claimed that she had acted in self-defense and introduced
expert testimony that she suffered from battered woman syndrome.
o The court refused Leidholms request for an instruction that this syndrome could
be relevant to the issue of self-defense.
o The court instead instructed the jury that self-defense under North Dakota law
applied only if a reasonably prudent person in similar circumstances would have
reasonably believed that Chester was about to kill her or inflict serious bodily
Leidholm was convicted of manslaughter.
Leidholm appealed to the Supreme Court of North Dakota.
o Whether trial court correctly instructed jury on self-defense reasonableness
North Dakota Century CodeSelf-defense
Justified Self-Defense
o A person is justified in using force upon another person to
defend himself against danger of imminent unlawful bodily
o Limits on use of force (excessive, deadly force)
Excessive force: a person is not justified in using more
force than necessary and appropriate under the
Deadly force
Justified when used in lawful self-defense or lawful
defense of others if used to protect actor or anyone
else against death, serious bodily injury,
commission of felony involving violence
Not justified when it can be avoided with safety to
actor and others by retreat or other conduct BUT
no person is required to retreat UNLESS he was
original aggressor or is assailed by a person who
he knows also dwells/works there
Excused Self-Defense
o A persons conduct is excused if he believes facts are such that
his conduct is necessary and appropriate for any of the purpose
which would establish justification/excuse under chapter, even
though belief is mistaken.
o However if belief is negligently/recklessly held, it is not excuse
in prosecution of offense where negligence/recklessness is
sufficient to establish culpability. Excuse is a defense or
affirmative defense according to which type of defense would
be established had facts been as person believed them to be.
o Belief must be (1) actual and sincere (2) reasonable
Objectivefrom viewpoint of hypothetical
reasonable and prudent person
Subjectivefrom viewpoint of accused. Mental and
physical characteristics are like the accused. Sees


what accused sees and knows what the accused

Self-defense may be excused or justified
Justificationactual existence of certain circumstances will operate to
make proper and legal what otherwise would be criminal conduct
o Reasonable belief force is necessary to prevent imminent
unlawful harm, correct in belief
Excuseopenly recognizes criminality of conduct, but excuses it
because actor believed that circumstances actually existed which
would justify his conduct when in fact they did not.
o Reasonable belief force is necessary to prevent imminent
unlawful harm, incorrect in belief
Judge thinks distinction is dumb. Question is not whether he was
correct in belief, but whether the belief was reasonable and thereby
Is reasonable objective or subjective?
Court says subjective on basis of (1) past decisions (2) subjective is
more just (3) subjective is not inconsistent with statutes.
Trial court used objective standard. Its wrong!
Whether trial court refusal to include battered woman syndrome in instruction to jury
was error
o Battered woman syndromea regular pattern of abuse creates in the battered
spouse low self-esteem and a learned helplessness
o Experts testified that Leidholm was in a battering relationship
Psychological condition of low self-esteem
Psychological state of learned helplessness
o Leidholm wants it considered by the jury.
o Court says trial courts refusal to include instruction was wrong.
Note: a subjective standard would take into account battered woman
Deadly force was necessary
o No retreatactor could not safely retreat (did actor honestly/reasonably believe
he could not safely retreat?)
Exceptions: Dwelling, place of work
UNLESS original assailant OR assailed by person he knows dwells or
o D says making duty to retreat dependent on status of assailant discriminates
against accused if attacker is a cohabitant.
Court finds this meritless.
o D argues it was error for trial court to instruct jury that manslaughter is lesser
included offense of murder
Court says its warranted in this case
Reversed, remanded. New trial.

State v. Wanrow
Jury instruction was that if there was no imminent danger of death/great bodily harm no
right to repel a threatened assault by use of deadly weapon in deadly manner
Court says this instruction is erroneous and rpejdicial in case of battered woman.

State v. NormanD shot her sleeping husband after 25 years of abuse (beatings, forced
prostitution). NC court rejected claim of self-defense on grounds that no harm was imminent.
State v. StewartD suffered severe physical and sexual abuse by husband. She had indecision
as to whether to kill her husband, flee, seek psychiatric help, or stay in marriage. Husband then
threatened her with violence and forced sex. He falls asleep. She took a gun and killed him. SC
says not entitled to self-defensenot imminent danger.
Victoria Nourseimminence is a red herring, a code word for possibility of retreat before
confrontation occurred
Alafair Burkeif we recognize actual impediments to safe escape for battered wives, we need
not explain their inability to flee as irrational. Can be necessary as long as we relax imminent
requirement in favor of a broader view of necessity.
Kimberly Ferzandefends imminence requirement
Charles Ewingsuggests doctrine of psychological self-defense would justify use of deadly force
where such force appeared reasonably necessary to prevent the infliction of extremely serious
psychological injury
Ibn-Tamas v. USD attempted to introduce expert testimony of Dr. Walker. Court reversed trial
judges exclusion of testimony and remand.
Majority of states permit D to introduce expert testimony on battered women syndrome
(Leidholm, State v. Hickson)
Some states impose limitation
o State v. Hennum
Description of general syndrome, characteristics
Not ultimate factleft for factfinder
Each side may present witnesses
Remove need for compelled adverse medical examination
General nature of syndrome onlyno need to examine defendant
Alafair BurkeWalkers findings do not logically support her theory of learned helplessness
Duty to retreat
Minority of states have retreat rule
Majority dont
o Erwin v. StateOhio rejected duty to retreat
o Runyan v. StateIndiana
o Beard v. USHarlan in SCOTUS opinion
o Brown v. USHarlan: detached reflection cannot be demanded in presence of an
uplifted knife
Dwelling context


New York v. TomlinsD claimed self-defense when attacked in home by son. Cardozo reverses
Ds conviction because duty to retreat instruction was given. Theres historical basis for
privilege of nonretreat from home.
Co-occupants and retreat
Cooper v. USD killed brother in shared apartment. Court held Cooper not entitled to castle
Weiand v. Statewhere a wife shot her abusive husband in home, trial court gave instruction
applicable in all self-defense cases. FL SC reversesciting Walker that retreat might heighten
danger to battered woman.
Model Penal Coderecognizes duty to retreat under most circumstances, does not impose duty
to retreat when necessary to defend against death/great bodily injury from a co-occupant of
Colorado Statute
18-1-704.5 Use Of Deadly Physical Force Against An Intruder ("Make My Day Law")
1. The general assembly hereby recognizes that the citizens of Colorado have a right to expect
safety within their own homes.
2. Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in
using any degree of physical force, including deadly physical force, against another person
when that other person has
made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that
such other
person has committed a crime in the dwelling in addition to the uninvited entry, or is
committing or intends
to commit a crime against a person or property in addition to the uninvited entry, and when the
reasonably believes that such other person might use any physical force, no matter how slight,
against any
3. Any occupant of a dwelling using physical force, including deadly physical force, in
accordance with the provisions or subsection (2) of this section shall be immune from criminal
prosecution for the use of
such force.
4. Any occupant of a dwelling using physical force, including deadly physical force, in
accordance with
the provisions of subsection (2) of this section shall be immune from any civil liability for
injuries or death
resulting from the use of such force.
People v. Goetz (NY approach, the objective reasonableness standard)
Facts: Bernhard Goetz (defendant) boarded a subway train. Four youths, Troy Canty,
Darryl Cabey, James Ramseur, and Barry Allen approached Goetz and said, give me five
dollars. Two of the four had screwdrivers in their pockets, but the group was otherwise

unarmed. Goetz pulled out an unlicensed gun and shot all four of them, leaving one
paralyzed. Goetz told the conductor that the youths tried to rob him. Goetz fled but later
surrendered to the police. Goetz told the police he did not think the youths had weapons
but was afraid of being maimed, because he had been mugged in the past. Goetz was
brought before a grand jury.
The grand jury indicted Goetz on weapons charges, attempted murder, and assault
charges but attempted murder and assault charges were dismissed.
o The prosecution was permitted to resubmit the charges to the grand jury on the
basis of new evidence.
That grand jury indicted Goetz on ten counts, including attempted murder and assault.
o Goetz moved to dismiss, claiming that the evidence was insufficient to support the
charges and the prosecutors jury instructions were invalid. Specifically, the
prosecutor instructed the jurors that the states justification defense depended on
a finding that Goetz had acted as a reasonable man in his situation would have.
The lower court dismissed the charges, concluding that the prosecutors inclusion of an
objective element of self-defense in the instructions was erroneous.
The prosecution appealed.
The appellate division affirmed.
The prosecution then appealed to the Court of Appeals of New York.
o NY law
Use of forceA person may use physical force upon another person when
and to the extent he reasonably believes such to be necessary to defend
himself or a third person from what he reasonably believes to be the use or
imminent use of unlawful physical force by such other person.
Limitations to the use of forceA person may not use deadly physical force
upon another person under circumstances unless (a) he reasonably believes
that such other person is using or about to use deadly physical force or (b)
he reasonably belives that such other person is committing or attempting to
commit a kidnapping, forcible rape, forcible sodomy or robbery.
o Model Penal Code (3.09(2))D charged with murder need only show he believed
that deadly force necessary to protect himself against death, serious bodily injury,
kidnapping, or forcible sexual intercourse to prevail on self-defense. If D was
wrong and was recklessly or negligently formed, he may be convicted of homicide
(reckless or negligent criminal intent)
What does reasonably believes mean?
o Prosecutor says its whether Ds conduct was that of a reasonable man in Ds
o Appellate Division says its not what a reasonable man believes, but what D himself
reasonably believes.
o NY COA says it should be an objective standardthe prosecutor was correct.
Actor does not have to be correct in belief, but uniformly requires actors
belief to comport with objective notion of reasonableness.
Penal Statutes
Legislative Commission (update the law after MPC drafted)did not
adopt MPC verbatim
NY (reasonably believes) vs. MPC (he believes)Legislative wanted to avoid
situation where crazy beliefs would justify a killing and allow for complete
o Goetz argues objective standard would preclude jury consideration on prior

Court says it falsely presupposes objective standard means background and

relevant characteristics must be ignored. It doesnt have to be ignored
reasonableness includes consideration of circumstances facing D or his
Reasonableness includes relevant knowledge D had, physical
attributes, prior experiences
Reverse Appellate Division, dismissed counts of indictment reinstated. Remand.