I.
BASIC DEFINITION - Act + Mental State + Causation + Result = Crime – Defenses
II. ACTUS REUS - a voluntary act, omissions do not usually count.
A. VOLUNTARY ACT
COMMON LAW
Requires a voluntary and a social harm An act
is voluntary if  willed the action or if she was
sufficiently free that she could be blamed for
her conduct. The social harm is the wrong
caused by 's voluntary act.
B. OMISSION
COMMON LAW
Elements
- failure to act
- legal duty to act
- capability to act
Legal Duty to act: Can be statutorily defined
or implied by the required elements of an
offense
Common Legal Duties:
- Landowner’s duties regarding
property
- Duties arising out of relationship b/w
actor and victim
- Contractual Duty
- Tort law creates a duty where actor
voluntarily assumes responsibility
- Duty to rescue if actor created peril
- Doctor’s have no duty to aid unless
person requiring aid is a patient
Knowledge of duty not required
III. MENS REA - A mental state is required for most crimes.
prove an offense, the prosecution must prove mens rea as to every element of the offense
A. TYPES
COMMON LAW
Intentionally (willfully) – to consciously
cause the result or when one is virtually
certain that the object will occur as a result
of 's conduct.
Recklessness – A heightened criminal
negligence or conscious disregard of a
substantial and unjustifiable risk.
Negligence – Objective fault  should
have been aware that his conduct created a
substantial and unjustifiable risk that the
social harm would result.
MPC DIFFERENCES
No person may be convicted of a crime
in the absence of conduct that includes
of which he is physically capable.
MPC DIFFERENCES
Liability for the commission of an MPC: duty to act MUST be
offense may NOT be based on an imposed by law
omission unaccompanied by action
UNLESS: CL: some non statutory legal
- the omission is expressly duties
made sufficient by the law
defining the offense, or
- a duty to perform the omitted
act is otherwise imposed by
law
Strict liability and public welfare offences are the exception. To
MPC DIFFERENCES
Purpose - conscious object with MPC splits intentionally into
conduct & results. Must be aware of the purpose and knowledge
existence or believe or hope that such MPC clear distinction between
circumstances do exist negligence and recklessness - not
Knowledge – Conscience awareness on the degree of risk involved but
that results are practically certain to on D's knowledge of the risk.
occur MPC provides that when it is not
Recklessness - Conscious disregard of clear which element a mens rea
a substantial and unjustifiable risk. applies to, apply it to all elements
Negligence – Should have been aware of the offense
of a substantial and unjustifiable risk. MPC where the statute is silent on
Mens Rea, recklessness is required.
Rule of thumb
Purpose = desire for a certain outcome
Knowledge = indifference to a certain
outcome
B. STRICT LIABILITY - Where there is no mental state required for an offense
COMMON LAW
Public welfare and traditional crimes. Created
by statute
IV. RESULT
A. CAUSE IN FACT - Causation is only required for result crimes.
COMMON LAW
Conduct satisfies the but-for test. Actual
cause exists when the result that constitutes
the criminal offense would not have occurred
when it did but for 's voluntary act (or
omission)
B. PROXIMATE CAUSE
COMMON LAW
Forseeability Test
To determine proximate cause, one must
determine whether the actor was the direct
cause and whether there were any intervening
actors or intervening causes (coincidences)
that severer the causal chain back to 
No intervening causes unless the cause is
foreseeable or de minimus.
Intervening Acts - Intervening acts can
sufficiently break the chain of causation;
Dependent intervening acts: occur where
the intervening actor acts because of a
condition brought upon by the D’s prior
conduct. However, if the dependant
intervening actor was grossly negligent, this is
sufficient to break the chain of causation.
Voluntary Intervening Act: occur where the
intervening actor acts voluntarily. Intentional
acts always break the chain of causation;
reckless acts are sometimes sufficient
(depending on court).
De Minimus: when the original act would
not have caused the death
Dangerous Forces Rest: The danger has to
cease at some point.
MPC
Under MPC, SL crimes are generally
restricted to violations and are
punishable by fines, not incarceration -
public welfare crimes;
MPC
MPC only requires actual causation and
uses the same but-for test as CL.
Cause in fact
MPC
MPC handles proximate causation
within the mens rea as to results Satisfy
but for test only. No intervening causes
Establish mens rea and you can
establish causation; then use to
determine if the result was too distant
or accidental in occurrence to have a
just bearing on 's liability or on the
gravity of the offense.
If the result deviates too far from what
is foreseeable, then one will be
exculpated for purpose and knowledge
crimes. If not, then  will be
convicted even if there is an
intervening actor.
DIFFERENCES
MPC is generally the same as
CL.
DIFFERENCES
MPC only requires actual
causation.
DIFFERENCES
For MPC, proximate causation
is handled within mens rea (but
for).
Purp/Know: Causation not
established if result was not
what was intended, unless:
1.  just a different person
(Transferred Intent)
2. Injury less than intended
Reck/Neg: Causation not
established if result not within
risk the actor was or should
have been aware of, unless:
1.  just a different person
(Transferred Intent)
2. Injury less than risked
V. CRIME
A. HOMICIDE
1. MURDER - unlawful killing of a human being
COMMON LAW
1st Degree Murder:
Malice aforethought.
Acting with Intent to Kill
2nd Degree Murder a/k/a Depraved Heart ,
gross recklessness, malignant heart, Implied
Malice, intent to do serious bodily harm -
DEFN: Acts in the face of an unusually high
risk that conduct will cause death of serious
bodily harm. Under certain exceptional
circumstances
Felony murder (typically 2nd) - during the
commission or attempted commission of a
felony in which death results.
Complicity:
Accomplices are strictly liable; no mens rea
required.
a. MITIGATION - LESSENS MURDER TO MANSLAUGHTER
COMMON LAW MPC
Provocation Doctrine Extreme Emotional Disturbance:
Act would have to fit in these categories in
order to get the manslaughter instruction to
the jury:
1. Extreme assault or battery upon the D
2. Mutual combat
3. D’s illegal arrest
4. Injury or serious abuse of D’s close relative
5. Sudden discovery of spouse’s adultery
Limitations
Does not apply when enough time has passed
so that the perpetrator should have cooled off
b/c then you are back to cold blooded killing.
It used to only be allowed when the provoking
incident occurred in the presence of D.
b. FELONY MURDER
COMMON LAW
One is guilty of Murder if she kills another
person, even accidentally, during the
commission or attempted commission of any
felony.
Independent Felony/Merger Rule –
Underlying felony must be independent of the
murder.
Causal Connection Required:
Either…
MPC
Purposely or knowingly, or
recklessness plus. Premeditation and
deliberation are not required.
Recklessness Plus – reckless under
circumstances manifesting extreme
indifference to human life.
Complicity:
Accomplice – abets with requisite
intent before or during the commission
of the offense.
Accomplice Mens Rea:
- Purposefully promotes or facilitates
in the commission of a crime.
- Must act with culpability sufficient
for the commission of the offense
- FMR makes him an accomplice in
the underlying felony making him
strictly liable for the death because he
had the mens rea as to the result.
- MPC deals with accomplice liability
in reckless or negligent contexts.
Can mitigate from murder to
manslaughter even when intent to cause
death was present.
Two components:
- Extreme mental or emotional
disturbance
- That has a reasonable cause
- Under the circumstances as the
actor’s sees it
-
MPC
Recklessly manifesting extreme
indifference to the value of life are
inferred during the commission of
- Robbery
- Rape
- deviate sexual intercourse
- Arson
- Burglary
- Kidnapping or
- Felonious escape
DIFFERENCES
MPC includes gross bodily
harm under recklessness.
MPC's mens rea is equivalent to
CL's intent.
When MPC uses recklessness
as the mens rea, it is similar to
CL's malignant heart killings.
CL murder has degrees
first degree includes certain
enumerated types of homicide
(lying in wait; by poison, etc.);
or a willful, deliberate, and
premeditated (WDP) killing
All other forms are 2nd degree
murder. "malignant heart" is
usually 2nd degree
DIFFERENCES
MPC Broadens Mitigation by
- No time limitation – no
cooling off
- No limitation that person
killed must have been the
provoker.
- Leaving out exclusions for
mitigation
MPC requires that  be aware
of the risk being taken
(recklessness).
DIFFERENCES
Code does not have an express
felony M rule, it implies
recklessness plan during
commission of inherently
dangerous felony
 Agency Theory: The causation limitation
requires that the killing be in furtherance of
the felony, or at least by an agent of the felon.
The mere fact that a death occurs during the
commission of a felony will not necessarily
subject the felon to felony M.
Or…
Proximate Cause: A few states apply a
proximate causation test which holds a felon
responsible for the killing by a non-felon if the
felon proximately caused the death / set in
motion the events that lead to the death.
Non-Felon Rule: FM rule typically only
applies if the death is of a non-felon.
2. MANSLAUGHTER
COMMON LAW
Voluntary MS – homicide without malice
aforethought
“Heat of passion" – an Intentional killing
without malice - committed in response to
legally adequate provocation
Involuntary MS – unintended killing with no
malice or
“Misdemeanor manslaughter” - an
unintentional killing that occurs during the
commission of an unlawful act.
3. NEGLIGENT HOMICIDE
COMMON LAW
None
B. INCHOATE
1. ATTEMPT - an ct inn furtherance of an intent to bring about certain consequences which would in law amount to a crime.
COMMON LAW
Mens Rea -
For the Attempt, D must have specific intent
- an intent to do an act or to bring about
certain consequences which would in law
amount to a crime
Negligent or Reckless crimes - Attempt to
commit is logically impossible
Merger Rule: Attempt merges with the
completed crime.
Actus Reus - Tests
Proximity test – measures the attempt by how
physically and dangerously close D came to
actually committing the crime.
Probable desistance – If conduct of D goes
beyond that of a reasonable person in a similar
situation, then he’s probably liable for
attempt.
Complicity
One who intentionally assist another
person to engage in conduct that
constitutes the offense.
MPC DIFFERENCES
Reckless - unlike reckless M, here the
conduct, although reckless, does not
manifest an extreme indifference to the
value of human life
OR
Extreme Mental or Emotional
Disturbance (EMED)
MPC DIFFERENCES
A criminally negligent killing of the Equivalent to involuntary MS
third degree under the Common Law
MPC DIFFERENCES
Mens Rea - (1099) CL - Actus Reus tests are jxd
D must have the purposeful intent to specific
1. Do the act
2. Accomplish the result
3. Under the same circumstances Most states no attempt for
Felony Murder
The mens rea for attempt is often
higher than the one required for the
target offense. Generally, the required
mens rea is purpose.
Actus Reus – (1099 ex. of conduct)
- D must perform a substantial step
toward committing the crime.
- D’s conduct must be corroborative of
D's purpose.
Attempt is graded as the most serious
crime that is attempted, except an
attempt of a first degree crime is
second degree attempt.
 Unequivocality (res ipsa loquitur) – Merger Rule Applies
Objective Test for attempt. An act amounts to
attempt only if it firmly shows the ’s intent
to commit the crime. The act “speaks for
itself”

Last Proximate Act - D must have done

everything except the last act required to
complete the offense. (This test could miss a
lot of attempts)

Attempt is a lesser offense of the target crime.

a. DEFENSES
COMMON LAW MPC DIFFERENCES

Legal Impossibility: D took all actions, but Abandonment is a defense, if it is

actions could not result in a crime.
Traditionally: NO DEFENSE
Modern View: Abandonment is a defense, if
it is complete and voluntary.
NOT A DEFENSE
Factual impossibility is not a defense: D
took all actions to commit crime but b/c of
some missing fact the crime was thwarted.
Traditional View: Abandonment is never a
defense.
voluntary and complete (manifesting a
renunciation of criminal purpose, not
just a postponement).
Imaginary Offense Defense 5.01(1)(a)
Where the actor is mistaken in his
belief that his intended conduct is an
offense.
Inherent Impossibility Defense 5.05(2)
No possibility of a crime actually
happening from D’s conduct

2. CONSPIRACY
COMMON LAW
Elements:
1. An agreement b/w 2 or more people
2. with intent to agree
3. and intent to achieve objective
Plurality requirement – bilateral agreement –
an objective view.
Exception: Wharton’s Rule: Conspiracy
liability is barred where the criminal act itself
requires more than one person.
Hub And Spoke (one common center with
reasonably independent subagmts or
Chain Relationship (a series of agmts all of
which are regarded as part of a single larger
scheme)
Actus Reus: Formation of the group along,
no overt act
Object of Agmt - need only be unlawful /
wrongful.
Nature of the Agmt - does not require
objective evidence of the agreement; mainly
MPC
Actus Reus
Unilateral agreement (a subjective
view) and overt act
Overt Act - No overt act is required for
serious (1st or 2nd degree) felonies, but
required for all other offences. Must be
some act, no matter how trivial or
innocent
Object of Agreement – criminal act
Merger – merges with the crime
unless there are further conspiratorial
crimes to be carried out.
Mens Rea (1101)
The purpose of promoting or
facilitating the commission of the
offense.
Courts are left to their discretion to
decide whether purpose applies to all
elements of the offense, or just the
result.
DIFFERENCES
MPC - knowledge is not
enough. CL - knowledge and
agmt to assist may be enough.
MPC is unilateral.
CL lets  off if state cannot
prove that there was another
person with the requisite mens
rea.
Overt act requirement is only in
MPC.
MPC merges and CL does not.
MPC rejects the Pinkerton
Doctrine.
Hearsay evidence may be
brought in to prove the
conspiracy, but not the
substantive offense.
 mental in nature; its concerted action,
conversation, and conduct
No Merger - does not merge into an attempt
or the completed offense.
Mens Rea
Requires specific intent (purposeful) with:
1. intent to agree (may be inferred from
conduct, but not from mere knowledge)
2. intent to carry out the object crime.
Some courts allow conviction if the second
mens rea (as to object crime) is merely
knowledge. (SPECIAL SITUATIONS
ONLY)
Mere knowledge is not usually enough,
but can be when combined with a stake
in the success of the object crime.
Punishment - punishment is the same
for conspiracy as for the object crime in
all cases but 1st degree felonies.
Pinkerton Doctrine is rejected - if the
conspiracy goes beyond the intended
purpose, one is not guilty of any
foreseeable crime unless he can be said
to have aided and abetted in its
commission.

Punishment - charged as the substantive

offense that is conspired to produce.

Pinkerton Test - all members of a conspiracy

can be held as accomplices of any crime in
furtherance of the conspiracy and any
foreseeable result of it. Liability holds even if
the co-conspirator did not assist the
perpetrator.

a. DEFENSES
COMMON LAW
Barbri says withdrawal was not a common
law defense
Abandonment, unless the offense is
completed (once there is agreement)
abandonment is not a defense. Can relieve
liability for future crime of former
conspirators.
MPC DIFFERENCES
Abandonment, if the conspirator
renounces his criminal purpose and
thwarts the success of the conspiracy
under circumstances demonstrating a
complete an voluntary renunciation of
criminal intent.

C. COMPLICITY
1. ACCOMPLICE - An accomplice is one who intentionally assists another person to engage in conduct that constitutes the
offense
COMMON LAW
Types
To be charged, Principal must have completed
the offense
Accomplice can only be liable after conviction
of the principal
Accessory before the fact – incites or abets
but is not present at the time of the crime.
Accessory after the fact – if you aid a
perpetrator after the completion of a felony,
you can be liable if
- you have knowledge the felony was
committed, and
- personally give aid to felon to hinder
his apprehension or punishment
Actus reus
MUST assist the perpetrator in committing
MPC
Types
Accomplice – incites or abets with
requisite intent before or during the
commission of the offense.
Mens Rea
Purposefully promotes or facilitates in
the commission of a crime.
Actus Reus
- must attempt or agree to assist
perpetrator
- Must act with culpability sufficient
for the commission of the offense
DIFFERENCES
MPC – Those that agree to aid
or attempt to aid but do not
actually aid are also liable
MPC - accomplice can be
convicted even if the
perpetrator has not yet been
prosecuted, has been convicted
of a lesser crime, has been
acquitted, or is feigning.
MPC - knowing facilitation is
not enough to establish liability.
A victim cannot be an
accomplice.
CL - If the perpetrator is
justified, then there is no
accomplice liability because
 the offense there is no crime.
**accomplice need not be necessary for
successful completion of the offense CL- excuses do not transfer
**Can consist of encouragement alone from perpetrator to accomplice
A victim accomplice (underage
Abetting -is any significant assistance in the girl in statutory rape) cannot be
commission of an offense an accomplice unless there is a
legislative exception.
Inciting – encouragement even if not
accompanied by physical aid. Knowing or reckless facilitation
is sufficient to establish
Mens rea complicity in some courts
That which is required for commission of the
target offense .

Intend for action to assist or encourage in the

successful completion of the crime

Generally, this second element can be inferred

from the first.

Accomplice is liable for all crimes that are a

reasonably foreseeable result of the
contemplated crime.

a. DEFENSES
COMMON LAW MPC DIFFERENCES
Withdrawal Withdrawal
- Must take place before the events are - Wholly depriving his prior assistance
unstoppable of effectiveness,
- Inciter(encourager) – communicate an - Provide a timely warning of the plan
renunciation of the crime to the perpetrator to law enforcement
- Abettor – Must render the assistance  - Make an effort to prevent the
gave ineffective commission of the offence

D. RAPE
COMMON LAW MPC DIFFERENCES
Elements of Rape: MPC 213.1, pg 1124 Modern trends vary greatly
- Forcible from both CL and MPC:
- Penetration of female by male Defines rape as being committed by a - Gender neutral terms
- Against V’s will male with a female victim recognizing rape doesn’t
have to be by male/against
Alternatives to force allowable: Force required: More than intercourse? female
- Fraud to such a degree that woman either: - Broader view of coercion,
- did not know she was having intercourse Mistaken reasonable belief in consent focuses on lack of consent
- did not know intercourse was not w/ can provide a defense instead of force
Husband - Only require verbal resistance
MPC 213.6, pg 1126-7 - Marital exemptions removed
Husband incapable of raping wife (1) mistake of age not a defense - Statutory age increased
- main concern was to protect the honor of (2) prohibits rape b/w husband - No corroboration required
husband/father and wife - No cautionary jury
(3) victim’s promiscuity a defense instructions
D’s mental state irrelevant (4) complaint must occur in 3 - Rape Shield Laws: V’s
Ds perception of Vs mental state irrelevant months sexual history no longer
(5) requires corroborative admissible unless prior
Admissible evidence: testimony history is b/w V and D
- Delay in victim reporting crime
- Some Jdxn require corroboration Children under age of 10 presumed Modern View Crime is:
- Prior sexual conduct (Prostitutes lack of consent 1. Crime of violence
incapable of being raped 2. Sex Crime, and
3. Privacy Offense
Prejudicial Jury Instruction: Rape is easy
to charge and hard to prove therefore requires
 close scrutiny
Punishment: death penalty until 1977
- violates 8th amendment cruel and unusual
Children under age of 10 presumed lack of
consent
E. THEFT
COMMON LAW
Divided into Several CL Crimes:
1. Larceny
2. Embezzlement
3. False pretenses
Larceny:
Actus Reus
(1) Trespassory taking: D takes
possession of the personal property of
another without consent or in absence
of justification
- Possession: a person has sufficient
control over the property to use it in
an unrestricted manner
- Custody: person has the right to
control, but does not have unrestricted
use rights
- “Continuing Trespass”: even if the
initial taking was consensual, as soon
as the intent of the actor changes,
some courts have held that trespass
begins at that point
(2) Carrying away: Any movement of
the property qualifies
(3) Of Personal Property of Another:
- title is irrelevant,
- Only personal property qualifies, not
real property,
- Intangible Property is covered under
different laws
- If you give your property to
someone for repair, you have given
them lawful possession
Mens Rea
(1) Intent to permanently deprive the other
of property
(2) Must concur with the taking
(3) “Continuing trespass” theory can
overcome concurrence requirement b/c
a new “trespassory” taking is
manufactured to concur w/ intent
Embezzlement:
(1) Taking of possession
(2) of personal property
(3) Lawfully entrusted to D
(4) and D converts it to his own use
- Common with financial crimes and shipping
Cases
- Very thin difference b/w larceny and
Embezzlement
MPC DIFFERENCES
Theft by Unlawful Taking 223.2, pg MPC: if you remove
1132 something attached to another’s
- Unlawful taking of another’s land, it is theft
movable or immovable property
- Mens Rea is the same as CL: CL: if you remove something
purposeful attached to another’s land, it is
not theft, it is a tort
Theft by Deception 223.3, 1132
- Similar to CL false pretenses MPC: distinction between
- purposely obtain another’s property possession and custody is
by deception removed, if you exercise
- deception must be purposeful unlawful control over property,
- does not include puffing or you are guilty
immaterial misreps
- obtain means to bring about a transfer MPC recognizes theft of non-
of a legal interest in the property property (Services)
Theft of Property Lost, Mislaid or MPC recognizes that theft can
Delivered by Mistake 223.5, 1133 occur even if you don’t carry
- one who comes into control of away the property
property he knows has been lost,
mislaid or delivered by mistake
- with purpose of depriving TO, he
fails to take reasonable measures to
restore property to TO
Theft of Services 223.7, 1134
- one who purposely obtains services
by deception or threat or by false
token or other means to avoid
payment for the service.
- must know services are typically
compensated
- where payment is typically
immediate (hotels, restaurants) mens
rea is presumed
- a person who knowingly diverts
services to his own benefit for which
he is not entitled has committed theft
 False Pretenses:
(1) Actor transfers title
(2) In another’s property
(3) To the actor
- Typically involves fraud and
misrepresentation
- Ex: Using counterfeit money to buy gas
or groceries

VI. DEFENSES
A. JUSTIFICATION - conduct that is otherwise criminal, but that here is either "right" or "not wrong" under the circumstances.
1. DEFENSIVE FORCE JUSTIFICATION
COMMON LAW
A person is justified in using force on another:
- he is not an aggressor
- he reasonably believes force is necessary
- to protect from imminent use of
unlawful/aggressive force by another
Retreat Required (minority of states)
- must be able to retreat to complete safety
- person must be aware of a place of safety
- “Castle Rule” is exception: do not have to
leave your own home
Requires IMMINENT Threat
- clear and imminent danger
- only action will avoid danger
- no effective alternative
- must have clean hands
- harm caused is less than harm
avoided
Deadly force: Only allowed when life is
being threatened
- requires retreat to a public place
- never allowed for unlawful arrest
MPC
Self Defense, 3.04, pg1085
(1)A persons is justified in using
defensive force if:
- the actor believes
- such force is immediately necessary
- for the purpose of protecting himself
- on the present occasion
(2)If you know you can retreat, then
deadly force is off the table
(2)(b)Deadly force is justified if one
faces a threat of death, SBH, forcible
rape, or kidnapping.
Defense of Other Persons 3.05, pg
1086
- Essentially same as CL
Defense of Property 3.06, pg 1087
- Use of force only after request actor
to desist if possible
- Deadly force available even where
life is not threatened
DIFFERENCES
MPC looks at the D's subjective
belief, the belief need not be
reasonable.
MPC replaces imminence with
the phrase "immediately
necessary" so that one may use
force sooner under than CL.
MPC - deadly force is more
broad than CL one who acts
with the purpose causing death
or GBH qualifies
In CL force not likely to cause
death or SBH is not deadly
force even if it was the 's
purpose to kill.

Defense of Property:
- no more force than reasonably appears
necessary for defense of possessory interest
- deadly force is NEVER allowed
- Early CL allowed use of deadly force in own
home, now only if D reasonably believes lives
are in jeopardy

Defense of Other Persons

- Deadly force unavailable if person being
defended is capable of subduing attacker or
retreating
- Conversely, if deadly force is justified, but
you are capable of subduing, must subdue
2. LESSER EVILS DEFENSE
COMMON LAW MPC DIFFERENCES
 is justified if he reasonably believes he is Was action necessary to avoid a greater MPC does not have an
avoiding the greater evil and: harm or evil? immediacy requirement.
(1) the harm is imminent
(2) the harm caused is proportionally Choice of Evils 3.02, pg 1084 MPC if  caused it accidentally,
LESS than the harm avoided - Conduct believed to be necessary to he can still claim necessity
 (requires proof)
There must not be an alternative.
 may not have created the necessity.
 can never take another's innocent life out of
necessity.
se only applies when a natural force created
the necessity. (Traditionally, however, after
MPC most CL jurisdictions have adopted a
broader approach)
3. PUBLIC AUTHORITY JUSTIFICATION
COMMON LAW
Goal: to protect a societal interest or advance
societal good by person with authority
Justification arises where there is:
- Special authorization, plus
- Evoking conditions, allows
- Necessary force
Exceptions to Authorization Requirement:
- all persons are authorized to use force to
prevent suicide
- authorization to use force against a person
preparing to commit or has just committed a
crime (under certain circumstances)
Evoking Conditions
- threat of harm not required
- whenever a recognized interest is
endangered, or
- an opportunity to further an interest is
Presented
Necessary Force and Proportionality
- must use least harmful conduct
- Acting with “proper purpose”
- No need to be absolutely necessary
- generally statutorily limited
B. EXCUSE - wrongful conduct, but under the circumstances, D is not morally culpable or blameworthy
1. DURESS
COMMON LAW
Actor must be under the coercion; acting
under the duress; and must have clean
hands
Not a defense for homicide.
A defense if performance of an otherwise
criminal act occurs
1) Under threat of imminent infliction of death
or GBH
2) If he reasonably believes death or GBH will
be inflicted on himself or immediate family if
he does not perform
avoid harm or evil
- The harm sought to be prevented is
greater than the harm caused
- If the actor recklessly or negligently
brought about the harm avoided, and
the harm caused has a mens rea of
reckless or negligence then
justification disappears.
MPC
Public Authority 3.08, pg 1091
Force is justifiable in following
- parent/guardian
- teacher or other entrusted with care
- guardian of an incompetent person
- doctor or therapist
- Warden or other official
- One responsible for safety of vessel
- one authorized by law to maintain
order
MPC
MPC 2.09, pg 1082
(1) Duress is an affirmative defense:
- D was coerced to commit offense
- a person of reasonable firmness
would have been unable to resist
(2) Defense is unavailable if D inserted
himself in situation recklessly or
negligently
though if he recklessly or
negligently created the
necessity, he may be held for
crimes of recklessness and
negligence.
MPC allows se in cases where
a natural force did not create the
necessity.
DIFFERENCES
DIFFERENCES
MPC abandons the CL
requirements of deadly force
and imminency in favor of
excusing  whenever a person
of reasonable firmness would
also have yielded to coercion;
MPC is one of general
applicability may be used in
murder cases
MPC does not require that an
imperiled party be s relative.
 The act is termed excusable rather than
justifiable.
2. INSANITY- DISABILITY EXCUSE
COMMON LAW
Either:
1. Actor is aware of the conduct, but
does not know it is criminal (God
told me to do it)
2. Actor knows conduct is criminal, but
lacks the ability to control it. (god
told me to do it)
Requires a mental disease or defect
3. MISTAKE
a. OF FACT
COMMON LAW
Not a defense to a Strict Liability Crime
Honest mistake defense available for specific
intent crimes (less strict than reasonable
mistake)
Reasonable mistake defense available for
general intent crimes (NJ’s codified law)
b. OF LAW
COMMON LAW
Ignorance of the law is no excuse
Exceptions - mistake must be reasonable and
honest.
- No reasonable notification/publishing
- Specification in Statute that knowledge of
law is req’d.
MPC similar to CL in that it is
limited to threats or use of
unlawful force and does not
apply to coercion by natural
sources.
MPC DIFFERENCES
MPC 4.01
Substansial capacity- If, at the time of
action, due to mental defect or
disability, D lacked substantial capacity
- to appreciate criminality of conduct
- or to conform conduct to law
Does not include abnormality
manifested by repeated criminal or
antisocial conduct
Subnormality: Suffering from low
intelligence, requires same cognitive
dysfunction
MPC DIFFERENCES
MPC 2.04(1)(a)(b), pg 1078  steals diamonds believing
they’re glass - MPC  petty
Must negate the mental state required larceny; CL  grand larceny.
to establish any element of the offense.
 steals glass believing it‘s
If Mistake caused an offense to be diamonds, MPC  petty
greater in degree than actor originally larceny and attempted grand
thought, mistake doesn’t get him off, larceny and CL  petty larceny
but affords him the lesser degree of and attempted grand larceny.
offense
MPC – Look at the world
through the ’s eyes in a factual
(not legal) manner
MPC/CL - No mistakes get you
off for strict liability.
MPC DIFFERENCES
MPC 2.04(3)(a)(b) pg 1078 CL and MPC approaches are
similar. In general, unless
Exceptions to general rule: falling into a recognized
- Specification in Statute that exception, ignorance of the law
knowledge of law is req’d. is no defense.
- Reliance on Official Statement
- No reasonable notification/ MPC codifies the CL
Publishing reasonable reliance doctrine.
Where mistake is based on permission
by gov’t official, D must prove by
preponderance of the evidence that
official had the authority to approve
action
4. INTOXICATION
COMMON LAW
Intoxication results from taking intoxicating
substance:
1. Without knowledge of its nature
2. Under direct duress imposed by another or
3. Pursuant to medical advice while unaware
of the substances intoxicating effect.
Actor lacks substantial capacity either to
appreciate the criminality of the conduct or
conform his conduct to the requirements of
the law
5. IMMATURITY
COMMON LAW
All those below a certain age are immature
Bars defense completely regardless of
“mental” age of actor
Some states provide that immaturity is a
rebuttable presumption: i.e. you can charge a
minor as an adult if you can prove it.
Not a question for the jury: results in
determination of which court hears case
MPC DIFFERENCES
MPC 2.08, pg 1082
Intoxication only serves as a defense if:
- it is not self induced (involuntary)
- is pathological (excessive, not an
alcoholic)
In those circumstances, intoxication
must cause a lack of substantial
capacity to:
- appreciate criminality
- conform conduct to law
MPC DIFFERENCES
MPC 4.10, pg 1098
Provides that Juvenile court has
exclusive jurisdiction over children less
than 16
Children 16 or 17 can be tried as an
adult only where Juvie has no
jurisdiction or has waived jurisdiction