1

Defining Criminal Conduct – The Elements of Punishment

I. Legality

The Legality Principle: No crime without law, no punishment without law

A person may not be punished unless her conduct was defined as criminal before she acted.
Rationales:
• Prevents arbitrary and vindictive use of the laws.
• Enhances autonomy, allows people to plan and pursue their goals w/o risk of retroactive punishment.
• Allows Ds fair notice before acting and permits reliance on a law’s meaning. W/o this they can’t conform
o W/o opportunity to chose to follow the law, there is no retributive basis for punishment
o There can be no deterrence to choose not to break the law if the law is unclear/unreliable

Due Process: Under Rogers, the court’s interpretation of a common law doctrine or statute may have
retroactive effect unless its reading is “unexpected and indefensible” in light of precedent. A court cannot
create an offense by enlarging a statute, inserting/deleting words, or giving words false or unusual meanings.

Statutory Clarity/Vagueness: Additionally, a statute must not be so vague that it does not give sufficient
warning as to how to conduct oneself to avoid liability.
• Vague statutes deny a D fair notice. They also provide law enforcement little guidance and opportunities to
act in arbitrary and discriminatory manner
• To determine the clarity required, courts look at: the statute’s purpose, the extent to which ambiguity is
necessary for the statutory goal, and the impact of the statute on the rights of the individual
o However the law often requires conformity to an imprecise standard and, as Holmes observed, the
law is full of instances where D’s fate depends on estimating correctly.
o A statute is only considered vague if it remains so after an examination of all precedent, in all
jurisdictions, with a lawyer, etc.

1. Legality at Common Law

English courts traditionally could create misdemeanors bc parliament met so infrequently. US states
adopted English CL. As more penal laws were enacted, some states made new legislation exclusive.
Othees, like PA during Mochan, followed English common law in absence of contrary state statutes.

A. Commonwealth v. Mochan (Superior Court of PA, 1955)

Facts: D was charged w/ intending to corrupt, harass, embarrass, and vilify V by unlawfully,
wickedly, and maliciously making phone calls to her. No statute or CL offense prohibited this.
Issue: Whether D can be convicted on a charge that was not a crime by statute or common law.
Holding: The common law is sufficiently broad to punish as a misdemeanor any act that outrages
decency and is injurious to public morals.
Dissent: Should not be considered a crime until the legislature makes it one.
Take away: This is an example of judicial crime creation, stemming from English’ courts tradition.

B. New/Current Common Law Crimes

Now, nearly all states abolished the doctrine that courts can create new crimes. SCOTUS has
never held it unconstitutional, but is generally opposed.
 2

• In United States v. Hudson & Goodwin and later in United States v. Wiltberger the court held
that, for the federal government, there are no federal common law crimes. All powers to be
exercised must be done through an affirmative act of congress.
• This but has powerful resonance through the states. Most states follow this by statute.

2. The Meaning of Legislation

As crimes must be defined by statute, the reach of the criminal law is determined solely by the reach of
statutory language. Yet it is ultimately the courts that determine what that statutory language means.

A. McBoyle v. United States

Facts: D was convicted of transporting an airplane that he knew to be stolen. The National Motor
Vehicle Theft Act defines motor vehicle inter alia as “any other self propelled vehicle not designed
for running on rails” and made knowing transportation of stolen motor vehicles a crime.
Issue: Whether phrase “self-propelled vehicle not designed for running on rails” includes airplanes
Holding: No, when a rule evokes only the picture of vehicles moving on land, statute shouldn’t be
extended simply bc it may seem that a similar policy applied or that, if the legislature thought of it,
very likely broader words would have been used.
Take Away: No criminal law by analogy, criminal statute should be read strictly.

B. United States v. Dauray

Facts: D possessed of 13 unbound pictures of naked kids. Charged with violating child porn statute
that punished possession of “3 or more books, magazines, periodicals, films… or other matter.”
Issue: Whether individual pictures are “other matter” containing visual depiction w/in the statute.
Holding: Bc the statute can be read either way, the court applies the rule of lenity, which requires
that, in last resort, a court resolve remaining ambiguity in Ds favor.
• Before applying Rule of Lenity court goes through all Modes of Statutory Interpretation: plain
meaning, canons of construction – lists and associated terms, statutory structure, statutory
amendment, avoiding absurdity – and legislative history

i. Rule of Lenity
Basic Conception: When a statute is subject to two, conflicting reasonable
interpretations, the statute should be interpreted in favor of the D.
• Not constitutionally compelled
• Seeks to further legality by preventing inadvertent enlarging of the scope of a statute
3 different approaches
1) Requires courts to adopt the narrowest plausible interpretation of a criminal
statutes
2) Doctrine comes into play only as a last resort when other tools of interpretation
fail
3) MPC gives lenity no special consideration
• Requires that statutes be construed according to their “fair import” and ambiguity be
resolved to further the general purposes of the code and the specific statute.
• Yet a principle of MPC is fair warning so it is arguable whether MPC really rejects it

3. Extending the Law

A. Keeler v. Superior Court
Facts: D kicked pregnant ex-wife in stomach, saying he was going to stomp the child out of her.
Issue: Whether the fetus was a human being within the meaning of the statute prohibiting “the
unlawful killing of a human being, with malice aforethought.”
Holding: The court held that D couldn’t be charged because under CL a fetus became a human
 3

being when breathed on its own. The court said it could not expand the statute, relying on Bouie.

B. Bouie v. City of Columbia

Facts: Ds went to a SC store that wouldn’t serve blacks. They wanted to provoke their arrest and
prosecution for trespass to raise the issue of whether the state could constitutionally punish them.
While the case is pending, the government passes the 14th A, which prohibited the store’s action.
Holding: State Supreme Court is barred by the Due Process clause from making a punishment
more serious retroactively through judicial construction.

C. Rogers v. Tennessee
Facts: TN common law had a causation rule that prohibited characterizing people as responsible
for the death of another person if that person survived for longer than a year and a day after the
attack. There was no statute on the books about this.
Issue: Whether re-characterization of the murder statute to ignore this CL restriction violates the ex
post facto or due process clauses.
Holding: This CL was adopted in TN but no longer makes sense, given advances in technology.
O’Connor said judicial change of the law doesn’t violate due process because it isn’t unexpected
and indefensible (other states had made the same change). Radical expansion of law violates it.

4. Vagueness
A. Nash v. United States
Facts: Sherman act prohibits restraints in trade and is a criminal prohibition. Nash argues that all
contracts of sale are restraints in trade because they take goods off the table.
Issue: Whether Sherman Act is unconstitutionally vague bc theoretically extends to all contracts.
Holding: Holmes says that the statute only prohibits unreasonable restraints of trade. He
recognizes this is an issue of degree and it may be difficult for people to make this estimation, but
all standards involve estimations and people just need to do the best they can.
• There’s nothing wrong with laws that have uncertainty in them; there’s no interest in defining for
criminals the precise line at which something becomes illegal.

B. City of Chicago v. Morales (US 1999)

Facts: Chicago enacted a law that provided if “an officer observes a person whom he reasonably
believes to be a criminal street gang member loitering in any public place with one or more other
persons, he shall order all such persons to disperse and remove themselves from the area.”
Loitering was defined as “remaining in any one place with no apparent purpose.” Anyone who did
not “promptly” object the order to disperse was subject to a fine or jail.
Issue: Whether the ordinance was unconstitutionally vague.
Holding: The statute is uncon. vague because there is nothing to guide police officers in
determining whether someone has an “apparent purpose” or is loitering

C. Papachristou v. City of Jacksonville (US, 1972)

Facts: Statute prohibited being a vagrant, including persons wandering w/o lawful purpose
Issue: Whether the law ordinance was unconstitutionally vague.
Holding: The ordinance is vague and imprecise but moreover gives police unfettered discretion to
determine who is a vagrant and could also disguise unjust reasons for making an arrest.

D. Model Penal Code 250.6 on Loitering

MPC provides that a person commits a violation if she loiters in a place, at a time, or in a manner
not usual for law-abiding people, under circumstances that warrant alarm for safety of ppl/property
 4

in the vicinity. Officers are required to allow the actor to dispel any alarm before arrest.
• Jurisdictions that have adopted this differ as to its constitutionality

E. Other States Dealing w/ Specific Acts to get at Loitering

• Chicago rewrote the law to criminalize remaining in any place under circumstances that warrant
a reasonable person to believe the purpose/effect of behavior is to enable a gang to establish
control over an identifiable area.
o Doesn’t specify the conduct that amounts to this
• In CA you must prove that the members have engaged in or engaged in a pattern of criminal
gang activity, and that individual willfully promotes, furthers, or assists in criminal conduct.
o Requires showing D committed a crime, so why not just prosecute for the actual crime?
• GA act prohibited loitering in a place at a time or in a manner not usual for law-abiding ppl.
o GA SC overturned, saying there are no overt acts necessary to trigger liability.

II. PROPORTIONALITY

1. Principles of Proportionality
Retributivist: It is important that the sentence be limited by the severity of the crime committed, bc this is
the basis for justification of punishment. A principle of just deserts.
Utilitarian:
• Bentham would say the punishment must be shaped so that it meets the deterrence ends.
o If too low than it doesn’t deter, it is inflicting bad w/o attaining the good of deterrence.
o Differentiated penalties give people incentives to commit lesser offenses.
• Also, to the extent that criminal law shapes values, it is important that people consider it a moral
enterprise. Otherwise ppl won’t have faith and will ignore the badness of the act. (Ewing, HLA Hart)

2. Proportionality Review
Typically capital punishments are reviewed by the court as to whether they are proportional to the crime.
The courts are divided on whether a review of proportionality is implied in other contexts.

A. Ewing v. California
Facts: D stole 3 golf club. He was convicted of felony grand theft. D had previously been convicted
of 2 other crimes and was sentenced to 25yrs-life bc of CA’s 3 strikes recidivist law.
Issue: Whether the 8th amendment contains a proportionality guarantee that make this law uncon.
Holding: A plurality found no implied proportionality principle and upheld the punishment.
O’Connor: 8Th A contains a narrow proportionality principle in non-capital cases, where sentences
that are grossly disproportionate are prohibited. Expressed deference to legislatures in determining
how to protect public safety. Weighed crime not only on this offense but on Ds history of recidivism.
• O’Connor says this isn’t punishing ppl for past acts but protecting against potential future acts
Scalia: No proportionality principle is contained in the 8th A. Proportionality is a concept tied to
retribution and utilitarian considerations of protecting society from crime were irrelevant.

B. Proportionality in Other Contexts

In addition to the death penalty, the Supreme Court has enforced a proportionality requirement for
fines, forfeitures, and punitive damages.
Is there a legitimate basis for a more searching review of punitive damages than jail time?
• Ds have not been accorded protections applicable in a criminal proceeding
 5

• Juries have wide discretion so there is a danger of arbitrary deprivation of property.

III. CULPABILITY: ACTUS REUS

• The law punishes only acts that people do, not thoughts, involuntary acts, or the act of being.
o Retributive: choice is a moral requirement for imposing punishment.
o Utilitarian: Sanction will only effectively deter if people are condemned for things they have
chosen to do, not for who they are/their status. Otherwise you just gause gratuitous pain.
o Jones v. City of Los Angeles: invalidated an ordinance that punishes people for sleeping in the
street/public place bc it punished the homeless for who they were not their conduct. Dissent
argued it punished conduct targeting sitting, lying, or sleeping in street)
• An Actus Reus consists of (1) a voluntary act (2) that causes (3) social harm.

A. The Requirement of Voluntary Action

This can be split into two elements: the act and its voluntary nature.
• An “act” is simply a bodily movement, not including its result.
• Its voluntary nature stems from the individual volition to move one’s body. (notions of free will)

B. MPC 2.01 defines voluntary action indirectly, in the negative.

• Tries to capture difference btwn chosen behavior and involuntary behavior.
• Involuntary acts: reflexive act, spasm, seizure, or unconscious act (hypnosis or sleepwalking)
o Problem: This does not match what really goes on in someone’s mind when they act (i.e.
habitual action w/o thought, which MPC does includes under voluntary acts).
o Bc of this, most states have not come up with a specific definition of voluntary action.
• Possession is defined as an act if the possessor either knowingly obtained the object or knew
she was in control of it for a sufficient period to be able to terminate the possession.

i. Martin v. State
Facts: Police arrest D in his home and take him to public highway where D “manifests
drunken condition.”
Holding: D not liable because he did not voluntarily “appear” in the public place
• CL requires all elements be voluntary

ii. People v. Newton

Facts: Newton kills a policeman in a scuffle. Uses unconsciousness defense bc not aware
of his actions after being shot in the stomach.
Holding: Unconsciousness (when not induced by voluntary intoxication) is a complete
defense, when the subject physically acts but is not conscious of acting.
Take Away: Unconsciousness is a defense. Amnesia is not a defense (i.e. can’t
remember robbing a bank after an accident in the getaway car

iii. People v. Decina

Facts: D was epileptic, his doctor told him not to drive. He drove and injured people.
 6

Holding: Awareness of condition and disregard for its foreseeable consequences makes
D liable for culpable negligence.
Take Away: MPC requires that behavior one voluntary act. If some part of a sequence of
conduct was voluntary and proximately caused the criminal harm, D is liable, even if the
act that directly caused the criminal act was involuntary.
• Mark Kelman: A court’s ability to look back in time for a voluntary act that caused
the criminal behavior allows game playing. There is no bright line rule.
• Michael Moore: Requires a culpable mens rea that proximately causes the criminal
act. The culpable mens rea and voluntary action must be simultaneous and causal.

C. Omissions
Generally, there is no crim law duty to act to prevent harm to another, even if they may die w/o help.
• MPC 2.01(3) omission is criminal when it is expressly sufficient for criminality by statute.
• Exceptions: special relationships, contractual agreements, assuming care of an
individual and secluding from other care, sometimes once D causes harm D has duty

i. Jones v. United States

Facts: Child was left w/D who did not give it food or medical care, resulting in its death. No
jury instruction that they needed to find beyond reasonable doubt that D had duty to act.
Holding: Finding of legal duty is critical element. Failure to instruct was clear error.
Take Away: Issue of liability centered on whether Jones had contractual special
relationship because w/o external exception to general rule, no liability for failure to act.

ii. Pope v. State

Facts: D allows a mom and her child to stay with her. Mom beats child; D didn’t intervene.
Holding: No legal duty because the woman cannot be characterized as “responsible for
supervision of the child” which confers legal duty under the statute.
Take Away: Hesitant to punish good samaritans or mandate interfering w/parental duties.

iii. Duties of a Bystander

Minnesota, Vermont, and Rhode Island (only at scene of an accident) make it a crime to
refuse to aid someone in peril.
HI, WI impose good Samaritan laws but only when the person is victim of violent crime
and in FL when person is victim of sexual assault
• All US jurisdictions require certain designated professionals to report child abuse

iv. Duties Triggered by Special Circumstances

a. Duty of One Who Creates Another Person’s Peril

i.e. Knocks someone into the water and does nothing to stop them from drowning.

b. Special Family Relationships

Bounded by traditional roles, occasionally extended but there is hesitance to do so.
1. People v. Beardsley 1907
Facts: D’s significant other (not his wife) overdosed; D did not call for help.
Holding: No legal duty to SO not his wife.

2. People v. Carroll
Facts: Stepmother failed to prevent husband from killing his daughter.
Holding: Stepmother owed duty of care to husband’s children.
 7

3. State v. Miranda
Facts: Live-in-boyfriend failed to protect child from mom’s fatal beating.
Holding: Duties should not be extended, case-by-case, beyond established
categories of parent or legal guardian. Prevalence of nontraditional family
arrangements does not support a slippery standard.

4. Commonwealth v. Cardwell
Facts: D failed to protect her child from step-father’s abuse when he was also
abusing D. D told husband to stop, tried to transfer daughter’s schools.
Holding: Person who has duty of care must take steps reasonably calculated
to achieve success. Court found that D did not fulfill this duty.

D. Distinguishing Omissions from Acts: Doctors Have No Affirmative Duty to Continue Care
i. Barber v. Superior Court
Facts: Doctors charged with murder after they agreed with family of woman in vegetative
state to remove life support.
Holding: D’s omission to continue treatment including life support, though intentional and
with knowledge that patient would die, is not unlawful failure to perform legal duty.
Take Away: Refusing to treat, is an omission. There is no affirmative duty to act

ii. Airedale NHS Trust v. Bland

Facts: Dr decided to withhold life support from patient with no hope of recovery.
Holding: Doctor withholding life support is not a culpable act but an omission.
Take Away: Distinguished from lethal injection. Problem w/how Drs decide when recovery
is futile. In this case there was some evidence of malpractice prior to this decision.

iii. Cruzan v. Director Missouri Department of Public Health

Facts: Missouri Supreme Court refused to order Cruzan be removed from life support.
Holding: Supreme Court held that a state was permitted to require clear and convincing
evidence of a patient’s consent to have treatment withheld.
Take Away: A person has a constitutionally protected liberty interest in refusing unwanted
medical treatment. There must be due process to determine consent/ whether the family
can remove treatment.
• SCOTUS later rejected argument for euthanasia on equal protection grounds
 8

IV. CULPABILITY: MENS REA

I. Basic Conceptions
An act does not make a person guilty, unless their mind is guilty.
Broad sense: the blameworthiness or moral fault involved in choosing to commit a crime.
Narrow sense: the awareness/intention that must accompany an act to make it criminal by statute.

II. Common Law

A. Malice
Conventionally, malice is defined as wicked. Common Law defines it as foresight of prohibited
consequence: shift towards considerations of whether someone acted with intent.

i. Regina v. Cunningham
Facts: D removes gas meter, steals $, gas injures 3rd party. Elements (1) malicious
administration (2) noxious thing (3) endanger life. Trial judge “malicious=wickedly.”
Holding: For an act to be malicious D must have purpose or recklessness so what is
required is that he foresee consequence of actions, not simply wickedly commit act.
Take Away: The crime requires that the D act with intentionality.

ii. Regina v. Faulkner

Facts: Sailor goes into hold to steal rum, lights match and explodes the whole ship. Trial
court says D is guilty if he was acting wickedly.
Holding: Overturned bc improper definition of malice, which requires foresight/intent

B. Common Law Intent Terminology

i. Specific Intent:
Someone does an action with a specific end or purpose in mind
• i.e. burglary  trespass with the intent to commit a crime inside
Alternatively, a crime can require D to have actual knowledge of a fact/external
circumstance to make an action criminal i.e. bigamy

ii. General Intent:

Someone intentionally performs an action
• i.e. trespass  all that needs to be proved is that you intended the physical action of
going on property, not intention to go on another’s property

iii. Proving Awareness and Intent

Prosecutions often use presumptions to prove what was inside D’s head.
• SCOTUS imposed strict limits on requiring a jury to find something; the presumed
fact must always be present w/the fact that triggers presumptions.
 9

Permissive inferences when juries may draw a conclusion are more common; allowed
when the fact is more likely than not to be true under the circumstances

iv. Negligence
There is a difference between civil negligence, which requires ordinary deviation from
reasonable behavior causing unjustifiable risk, and criminal negligence, which requires
gross deviation amounting to a substantial unjustifiable risk.
It is inappropriate to impose criminal penalties on the basis of civil negligence.

1. State v. Hazelwood
Facts: D, captain of Exxon Valdez caused petroleum to be discharged. Alaska made
it a misdemeanor (90 days imprisonment) to do so negligently.
Issue: whether civil/criminal negligence standard should be applied.
Holding: Majority - civil neg. was sufficient to protect D’s interests bc it doesn’t alter
litigation. Dissent – if punishment is imprisonment crim neg. should be applied.

2. Santillanes v. New Mexico

Facts: D cut nephew’s throat when wrestling. Court used civil neg. standard.
Holding: Crim neg is appropriate bc abuse statue is aimed at morally culpable acts

III. Model Penal Code Reforms

CL has too many ways of phrasing criminal culpability. MPC seeks simplification, precision, clarification, &
consistency.
D cannot be guilty of an offense unless he acts with culpability re each material element.
• Elements are propositions that have to be established; if not established no crime.
• Non-material elements are apart from seriousness of a crime (i.e. jurisdiction, venue)

A. Purpose
Result or conduct: D’s conscious object is to engage in such conduct or cause such a result.
Attendant circumstances: D is aware of the existence of such circumstances or believes or hopes
that they exist.

B. Knowledge
Attendant circumstances or conduct: D is aware that his conduct is of that nature or that the
required circumstances exist.
Result: D is aware that his conduct is practically certain to cause result

C. Recklessness
D acts recklessly when he consciously disregards a substantial and unjustified risk that the
material element exists or will result from his conduct.
• Risk is substantial and unjustifiable when it involves gross deviation from the care a law-abiding
person would observes in D’s situation.
• Situation: is intentionally left vague.
o It takes into account D’s physical characteristics but hereditary factors or matters of
intelligence and temperament are not material.
o Whatever is in between is up for debate

D. Negligence
D acts recklessly when he should be aware of a substantial and unjustified risk that the material
element exists or will result from his conduct.
 10

• Risk is substantial and unjustifiable when it involves gross deviation from the care a
reasonable person would observes (evaluated as a reasonable person in D’s situation).

E. Offense Silent as to Culpability

Some form of culpability is required for all material elements. If statute is silent, reckless is the
default. The element is established if D acts w/recklessness or above.

F. Ambiguous Culpability Requirements

If a statute doesn’t distinguish among material elements, a court will interpret a culpability provision
to apply to every material element unless a contrary purpose plainly appears.
• If the culpability element is in middle of the statute it applies to elements that come after.

IV. Applying the Model Penal Code Approach

A. Distinguishing Between Purpose and Motive

There is no defense that D had a motive separate from their act if the act was done because it was
a means to this end (i.e. stealing $ to feed child).
Exceptions: Motive is considered in hate crime legislation (controversial) or in grading offenses.

B. Distinguishing Between Purpose and Wish

Distinguished if you simply wish for something than if the D contributes to any cause of the act.
Mens Rea and Actus Reus must be concurrent.
• i.e. no crime if D buys plane ticket for hated act and he hopes it will crash.

C. Distinguishing Recklessness and Negligence

The difference is actual awareness of the substantial risk. W/negligence D is inattentive and with
reckless D chooses to run the risk in the face of the danger.
• What must D be aware of in order to show recklessness? MPC says D must be aware of risk,
that it is substantial, and that it is unjustifiable
o Problem: what about when D is aware of risk but believes he has lessened it so that it is
no longer substantial and unjustifiable? This becomes unclear

D. Distinguishing Recklessness from Knowledge : Willful Blindness

MPC also sets out a controversial additional form of knowledge known as willful blindness or
deliberate ignorance. It differs as but generally requires that D is aware of high probability of the fact
and deliberately fails to investigate.
• Controversial bc D isn’t always required to take steps to avoid knowledge.
2.02(2)(b)(i) Aware that the attendant circumstances exist
2.02(7) Requirement of knowledge satisfied by knowledge of high probability of its existence,
uness he actually believes that it does not exist.
• Critique is that it sneaks in a reckless standard in place of knowledge.

i. United States v. Jewell

Facts: D drove drugs across U.S. border but claimed he didn’t know drugs were in the car.
Issue: Appropriateness of jury instructions that D is guilty if he didn’t know solely as a
result of a conscious purpose to not discover the fact.
Holding: Maj. says this construction of knowledge is appropriate. It mirrors MPC 2.02(7)
which states knowledge is met by awareness of a high probability of an element unless D
actually believes it does not exist.
Dissent: Inappropriate instructions because it doesn’t specify knowledge must be
 11

w/regard to transporting drugs, D could have thought it was something else

Take Away: Maj. effectively reads recklessness into knowledge requirement.

ii. United States v. Giovannetti

Facts: D was convicted of knowingly aiding and abetting gambling by renting his house to
known gamblers and not inquiring into how they used his home.
Holding: D did not deliberately avoid acquiring knowledge bc he did not take steps to do
so. Failure to check displays lack of curiosity, not willful blindness
Take Away: Posner is reluctant to impose knowledge in absence of action.

Mistake of Fact

It is a defense, when because of a mistake about a material element of the crime, D does not possess the
specific state of mind that is required in the crime’s definition.
• D is responsible for producing some evidence that he was mistaken. The prosecutor then must prove
beyond a reasonable doubt that D wasn’t mistaken or that the mistake doesn’t negate the mens rea.

I. General Common Law Approach

General Intent:
• No conviction if reasonable mistake negated blameworthiness
• Critiqued for allowing convictions based on negligence, even civil negligence when most
criminal convictions require gross negligence to convict.
Specific Intent:
• As long as the mistake negated the specific intent, it was a defense. Even if the mistake was
unreasonable

A. Moral Wrong Principle

• Even if a mistake is reasonable and negates the element of a crime, when the facts as
the D believed them to be would still result in immoral conduct, D should be convicted.
• Effectively, the intent to commit an act that is immoral furnishes the required culpability for
the related, but unintended outcome.

1. Regina v. Prince
Facts: P was prosecuted for unlawfully taking any unmarried girl, under 16, out of
her father’s possession. The girl was 14 but P reasonably believed she was 18.
Holding: D was convicted b/c the court evaluated taking an 18 y/o girl out of her
father’s custody as morally wrong. The court thus deemed D to have knowingly acted
immorally and said that D ran the risk that the act is not only immoral but also illegal.
Take Away: Critics generally agree this was wrongly decided. Problems with legality
– immoral act is not prohibited. Effectively makes it a strict liability crime.

B. The Lesser-Crime Principle

When D knowingly commits a crime, he risks that it will result in a greater crime.
• When Ds actions would still be a crime if the facts were as D believed, no mistake of fact
defense. D is guilty of the crime the actually occurred, even if it has a higher penalty.

II. Model Penal Code Approach

 12

D isn’t guilty of a crime unless he had the required mens rea for each material element of it.
• A mistake is a defense if it negates the mental state required to establish any element
• The defense of mistake of fact is not available if the actor would have been guilty of a crime
if the circumstances were as he supposed. D is then convicted for the actus reus he
committed but sentenced for the penalty of the crime of under the facts that D believed.

STRICT LIABILITY FOR MISTAKE

I. Statutory Rape
a. Common Law
Traditional insistence on imposing strict liability for mistakes about age.

b. State Laws
Now more than 20 states permit the defense of mistake in some circumstances, but nearly all that
allow the defense do so only if the mistake is reasonable.
• Others make it completely strict liability, no defense of mistake of fact

i. People v. Olsen (Supreme Court of California, 1984)

Facts: Olsen was charged with lewd or lascivious conduct with a child under 14, victim
conceded that she told him she was over 16 and that she looked over 16.
Holding: Court rejected any defense of good faith belief and reasonable mistake as to the
victim’s age. Pointed to public policy of child protection and statutory structure.
• The legislature allowed probation for Ds who honestly, reasonably believed victim was
14+, so they clearly didn’t intend mistake to be a defense.

ii. B (a Minor) v. Director of Public Prosecutions (House of Lords, 2000)

Facts: D, a 15 y/o boy repeatedly asked a 13 y/o girl to perform oral sex. He was charged
with inciting a child under 14 to commit an act of gross indecency. Trial court found B
honestly believed she was 14+ but ruled that his mistake ≠ a defense.
Holding: Reasonable belief is sufficient for a defense of mistake of fact
• The more serious offense the more weight goes to requiring mens rea
• Reasonableness distinction goes to the whether the belief was actually held, if it is
unreasonable it suggest that it wasn’t actual unless D shows otherwise
Take Away: The standard is recklessness – actual belief. Even if D was negligent in his
belief, this can negate culpability as long as the belief is actual.

iii. Garnett v. State (Maryland Appeals, 1993)

Facts: A retarded 20y/o man had sex with a 13 y/o girl who told him that she was 16. The
trial court excluded D’s belief as to her age because this was a strict liability offense.
Issue: Whether he should be able to raise a mistake of fact defense.
Holding: No, ML second degree rape statute makes no allowance for mistake of age
defense and any introduction of a new mens rea element must come from legislature.

c. MPC
Allows a defense for honest mistake if reasonable. Imposes strict liability when child is under 10.
• When a child is older than 10 the mistake is an affirmative defense on which D has the burden
of proving the mistake was reasonable.
 13

Mistake of Law

Ignorance of the law excuses no one.

Rationales:
• Law is definite and knowable: CL scholars claimed bc law is definite and knowable, there can be no
reasonable mistake of law.
• Yet judges shape law and theres more legislation. Reasonable mistakes are possible and likely.
• Avoiding subjectivity: Allowing mistake of law undermines the definitive judgments of courts, etc.
• Yet w/defense, the meaning of the law would remains stable, a mistake simply excuses the D.
• Deterring Fraud: A pragmatic justification is that mistake-of-law defense would allow Ds to contrive
claims of mistake and the court would become lost in questions regarding the extent of D’s legal
knowledge.
• Yet courts have to decide hard questions all the time.
• Encouraging Legal Knowledge: Holmes said that a reasonable mistake of law defense would foster
lawlessness by encouraging ignorance of law, rather than respect for and adherence to the law.
• Yet, this also punishes someone who tries to learn the law but errs. Crim. law could incentivize
learning through reasonable mistake of law as a defense and punishing for negligent mistake.

Three categories of exceptions:

• Reasonable reliance
• Fair notice – excuse defense
• Mistake of law is a defense when it is actual and eliminates the requisite mens rea – failure of proof claim,
like mistake of fact

I. MPC
2.04(1): Says mistake of fact and mistake of law are the same – there is a defense if the mistake negates the
culpability required for a material element of the offense.
2.02(9): Knowledge, recklessness or negligence as to whether the conduct is an offense or as to its
meaning/construction is not an element of the crime.
• Undercuts mistake of law defense: for a mistake of law to be relevant the statue must require
knowledge of an element that is defined through a separate body of law.
• Common Law is similar

A. People v. Marrero (NY)

Facts: D, a federal corrections officer, was arrested for possession of a pistol in violation of a statute
prohibiting this but exempting peace officers from liability. D argued that “peace officer” included
 14

correction officers. Appeals court found he wasn’t included in the definition.

Issue: Whether D could bring mistake of law defense based on misreading of statute.
Holding: D was not entitled to claim mistake of fact under his own interpretation of the law. Reliance on
statute is an excuse only when it is later deemed erroneous
• Maj. gets this interpretation from the MPC/ NY statute doesn’t require statute to be corrected but
the maj. says legislature wouldn’t want defense expanded –too chaotic

B. Regina v. Smith
Facts: D smashes up wallboards to get out the cable in the walls. D was a renter and installed the
boards. He believed they were his to destroy. The law of fixtures transfers the ownership of the
floorboards to the apt owner.
Issue: Whether D not knowing the law affecting ownership creates a mistake of law defense
Holding: Mistake of law negates the required culpability of intentionally destroying/taking another’s
belongings. Intentionality transfers to the element that belongs are another’s.
Take Away: Its a mistake of law bc property law defines ownership in fixtures. The mistake was to the
definition of an element of the crime.

C. Cheek v. United States

Facts: D was convicted of willfully failing to file a federal income tax return in violation of a statute
making it a felony to willfully attempt to evade or defeat any tax. D believed that the tax laws were
unconstitutional. Tax law has knowledge of the law as a material element
Issue: Whether an honest but unreasonable belief that the law is unconstitutional is valid mistake of law
Holding: A defensible mistake of law would be that he had an actual mistaken belief that he didn’t owe
taxes, however mistake about whether the law is constitutional is not a defensible mistake of law
because it shows knowledge of a duty under the law.

i. “Willfully” and “Knowingly”

Mens rea language like knowledge or willfulness suggests that knowledge about the
existence or meaning of the law defining a crime is a defense.
However, courts have held that showing knowledge or willfulness implies a spectrum of
different requirements, which are not settled and hardly ever specified by statute:
• Awareness of the specific statute at issue
• A more general awareness that the acts committed are unlawful
• Merely awareness of the acts that were committed

1. United States v. International Minerals and Chemical Corp. (U.S. 1971)

Facts: Statute made it a crime for a person to knowingly violate a regulation
regarding the transportation of corrosive liquids.
Issue: Whether statute required knowledge of the existence and meaning of the law
Holding: There was no need for knowledge about the existence and meaning of the
regulation, but just that the actions that violated it were done knowingly.
Take Away: In a highly regulated industry, the court infers that congress would
want maximally effective enforcement. They’re expected to know the law.

2. Liparota v. United States (U.S. 1985)

Facts: Food stamp fraud statute provided that whoever knowingly uses, transfers,
etc in any manner not authorized by the state is subject to fine/impsisonment. D was
taking good stamps and giving people cash in exchange. He argued that he could
only be convicted if he knew there was a regulation making this illegal
Issue: Whether statute required knowledge of the existence and meaning of the law
 15

Holding: Prosecution must prove D knew of the existence and meaning of the law.
Take Away: Requires knowledge of statute because of a concern that otherwise it
would criminalize a broad range of innocent conduct, which is not statutory purpose

3. Bryan v. United States (U.D. 1998)

Facts: Firearms Owners’ Protection Act made it a crime to “willfully” deal in firearms
w/o a federal license. D was selling stolen firearms without a license. There was no
proof that he knew about the statute.
Issue: Whether statute required knowledge of the existance and meaning of the law
Holding: D must be shown to act w/knowledge that his conduct was unlawful, but
not that he knew of the existence of the statute with which he was charged.
Take Away: D knew he was violating some legal duty, but the court un-tethers this
from the exact statute under which they are charging him.

4. United States v. Ansaldi (2d Circuit 2004)

Facts: A statute made it unlawful to knowingly or intentionally distribute a controlled
substance. D knew he was distributing GBL but not that it was a controlled
substance under the statute
Holding: Knowledge of the law or intent to violate it is not an element of the offense
Take Away: Less defense in drug related crimes.

II. Official Reliance

An excuse defense, doesn’t negate an element of the crime.
D will be excused if D reasonably relied on an official statement of the law, later determined to be erroneous,
obtained from a person or public body w/responsibility for interpretation, administration, or enforcement of law.
• Defense is very narrowly applied: only recognizes reliance on statute, decision of highest court, an
official but erroneous interpretation by officer charged w/its interpretation

Rationale:
• When there is official sign off, threat of punishment doesn’t deter.
• Also we would be punishing someone for doing something we want –relying on gvt officials and checking in
on the state of the law. Doing otherwise is also like entrapment.

A. MPC Official Reliance 2.04(3)(b)

Belief that conduct doesn’t legally constitute an offense is a defense when D
(b) acts in reasonable reliance upon official statement of the law, afterward determined to be invalid or
erroneous, contained in
(i) a statute or other enactment
(ii) a judicial decision, opinion, or judgment
(iii) an administrative order or grant of permission or
(iv) an official interpretation of the public officer or body charged by law with responsibility for the
interpretation, administration, or enforcement of the law defining the offense
• The defendant must prove a defense arising under subsection (3) by preponderance of the
evidence.

i. Hopkins v. State (MD Appeals. 1950)

Facts: MD had very lax marriage laws but passed a statute limiting signs intended to advertise
marriage services. D puts up a sign saying “Rev. W. Hopkins” after asking the atty. general if he
could do this. Trial court didn’t allow evidence of the advice.
Issue: Whether evidence of the attorney general’s advice can be used to show official reliance.
 16

Holding: The court did not allow evidence for a defense on official reliance because this would
make the attorney general’s advice paramount to the law. (not official statement?)

B. Due Process Limitations

The Supreme Court has held that due process is violated when a D is convicted for conduct that
governmental representatives in their official capacity had earlier said was lawful – entrapment by
estoppel. (Raley v. Ohio)

C. Reasonableness Requirement
The reliance defense is only available when the D acted in reasonable reliance upon an official
statement of the law, afterward determined to be invalid or erroneous.

i. When is it unreasonable to rely on an official statement?

• United States v. Albertini: Court said reliance on 9th circuit decision was reasonable and
D is protected if he relied on the latest controlling opinion.
• United States v. Rodgers: Court said reliance on most recent case is unreasonable
when conflicting cases from other appeals courts made review reasonably foreseeable.
III. Fair Notice

A. MPC 2.04(3)(a) provides that a D is not guilty of an offense if D doesn’t believe conduct is illegal
and the statute defining the offense
(1) is not known to her and
(2) was not published nor otherwise reasonably made available to the actor before the conduct.
• “Published” is read very narrowly and if something is out there it is considered published
even if it is very unlikely that the D has seen it.
• The words “or otherwise reasonably made available” allows courts to hold D liable if the
material wasn’t published but was made available to the relevant entity.
• If it is published it is by definition reasonably available.

i. Lambert v. California
Facts: D was an LA resident and convicted felon. Alocal ordinance required felons residing in
the city for more than 5 days to register their presence with the police. Violation was punishable
by up to 6mos in jail. D was prosecuted under the statute and the trial court didn’t allow D to
present evidence that she was unaware of the law.
Issue: Whether lack of knowledge about the law is a defense
Holding: Constitution places limits on the doctrine of ignorance of the law is no excuse. It is
impermissible to convict someone for an omission rather than an action.
• The conduct is wholly passive – failure to register w/no duty other than that imposed by the
statute. Nothing alerted D to need to inquiry about law.
Take Away: Cannot convict someone for an omission rather than an action. However, almost
no cases follow the rule in Lambert
 17

Strict Liability

I. Typically assigned to regulatory/public welfare offenses, which are construed as having no culpability
requirement.
This came about in the late 19th century when people first began to be removed from where they are getting
their food and water, living in houses that other people own, etc.
• As urbanization develops, there becomes a problem of regulating products, particularly when mistake is
permitted as a defense. The law imported the idea of nuisance from tort.
• Utilitarian Argument: SL induces higher levels of compliance through deterrence; encouraging people to
take care or not engage in the dangerous activity. It shifts the burden from helpless public to people who
could try to take precautions. It also provide the government greater power of enforcement.

II. Now, strict liability is mainly created by legislature for public welfare/regulatory offenses with limited
penalties.
• Congress must clearly state SL for a felony but can be used for misdemeanors (Staples)
• There is a presumption in favor of culpability but not a requirement.
• There can be strict liability offenses under state law as well

A. United States v. Balint (U.S. 1922)

Facts: Ds were indicted for violating the Narcotic Act of 1914 by selling derivatives of opium. Ds
claimed that they didn’t know they were selling prohibited drugs.
Issue: Whether the statue should be construed to require mens rea.
Holding: No proof of culpable knowledge of the prohibition required. To protect public policy, the state
may single out particular acts and provide that D does them at his peril.
• Balancing harm: Congress weighed injustice of subjecting innocent seller to a penalty against the
evil of exposing innocent purchasers to danger from the drug. Decided to protect the purchasers.
• To engage in the industry requires assumption of risk: Ppll dealing in drugs must ascertain at his
peril whether he complies w/the statute

B. United States v. Dotterweich (U.S. 1943)

Facts: The Food and Drug Act prohibited putting adulterated or misbranded drugs into interstate
commerce. D’s company bought drugs from a manufacturer who mislabeled the products. He puts their
 18

labels on his bottles, making the drug misbranded. The jury convicted
Issue: Whether statute required mens rea w/respect to whether the drugs were mislabeled.
Holding: No mens rea required.
• Balancing harm: congress put burden on those who have the opportunity of informing themselves of
the violation of conditions imposed for protection of consumers, rather than on the helpless public.
Issue: Can Dotterweich be held responsible for the shipping of goods in interstate commerce?
Holding: Those who stand in responsible relationship to the shipment can be charged under the strict
liability statute; the jury usually is asked what constitutes a responsible relationship.

C. Morissette v. United States (U.S. 1952)

Facts: D went onto an AirForce practice bombing range and took bomb casings that were lying around.
D believed the casings had been abandoned. D was convicted of knowingly converting gvt. property,
holding D knowing intended to take the object.
Holding: D must be proven to have had knowledge of the facts that made the conversion wrongful, that
it had not been abandoned. This requires a judge to infer legislative intent.
• Omission of mention of intent does not eliminate that element when Congress had codified a crime
already in common law, which traditionally required intent.
• When congress creates a new statute this is read differently, and intent may be omitted
Take Away: Puts a limit on strict liability for criminal offenses. Strict liability is generally reserved to
public welfare offenses and it may not creep into common law offenses

D. Staples v. United States (U.S. 1994)

Facts: The National Firearms Act made possession of an unregistered firearm punishable for up to 10
years in prison. D had a gun that met the act’s definition of a firearm bc a piece had been filed down to
allow it fire automatically. D claimed he did not know this.
Issue: Whether the government had to prove D knew the gun would fire fully automatically
Holding: Absent a clear statement from congress that mens rea is not required, we should not apply he
public welfare offense rationale to interpret any statute defining a felony.
• Silence on mens rea doesn’t mean congress intended no requirement. The statute must be read in
the background of common law that required some mens rea for every crime.
• Public welfare statutes regulate potentially harmful or injurious items and often require strict liability.
• However finding gun possession strictly liable would criminalize a broad range of innocent conduct
(long tradition of widespread gun ownership)

E. United States v. X-Citement Video

Facts: D was convicted under an act, which prohibts anyone from (1) knowing transports/ receives/
distributes any visual depiction, if (A) its production involves a minor engaging in sexual conduct and
(B) depiction is of such conduct. D claimed he didn’t know the visual was of a child.
Issue: Should a conviction require proof that the D knew the person shown in the depiction was a minor
or just that the thing was a visual depiction?
Holding: Statute must be construed to require proof that D knew the depiction involved a minor
engaged in sexually explicit acts.
Take Away: Knowledge requirement travels throughout the statute, which is MPC standard.

III. MPC on Strict Liability 2.05

Rejects regulatory crimes.
Strict liability is only ok for violation. Any statute that requires absolute liability can only constitute a violation if
negligence with respect to those elements can be proven

IV. Vicarious Liability

 19

Courts generally uphold convictions of employers for the illegal conduct of their employees, even in the
absence of evidence of employer fault.
However, there is less agreement on conviction for offenses that punish by imprisonment instead of fines.

A. State v. Guminga (Supreme Court of Minnesota, 1986)

Facts: Undercover officers and a 17 y/o ordered alcohol. The officers arrested the waitress and
charged the restaurant’s owner with violation of Mn. statute that imposes vicarious criminal
liability on an employer when employee serves liquor to a minor.
Issue: Whether D can be held criminally liable on the basis of what his employee did.
Holding: In Minnesota, criminal penalties based on vicarious liability are a violation of substantive
due process; only civil penalties would be constitutional.
• Court balances public interest protected against the intrusion on personal liberty, as well as
alternative means by which to achieve that end. The court found such an intrusion on
personal liberty was not justified by the public interest protected.
Dissent: Imposing vicarious liability and the threat of short jail sentence is reasonably related to
the legislative purpose: enforcing laws prohibiting liquor sale to minors.

V. Involuntary Act Defense

Under strict liability offenses, a showing that the action was involuntary can negate the conduct element.

A. State v. Baker (Kansas Court of Appeal, 1977)

Facts: D was convicted of the absolute liability statute offense of driving a car at 77 in 55MPH
zone. The trial court refused to admit evidence that D’s cruise control was stuck and D tried to
deactive it. D claims that he involuntarily violated statute.
Issue: Whether the state must prove that D acted voluntarily.
Holding: D voluntarily activated cruise control and so he was the agent in causing the speeding.
• Unexpected brake failure or malfunction would be different because they are essential
components to the operation of the vehicle
 20

RAPE
I. ACTUS REUS
1. Force Requirement
Non-consensual intercourse was considered “forcible” if:
Traditionally:
• Use of the amount of physical force that is necessary to overcome the physical resistance of
the victim
• Accomplishing acquiescence by threat of force likely to cause serious bodily harm.
New Developments:
• Expanding that which is deemed force or threat of force.
• Using force as a grading factor in sexual assault, where the baseline is sex w/o consent

A. Requirement of Reasonable Apprehension of Force

i. State v. Rusk
Facts: V reported fearing for her safety because of the look in his eye. He put his hands
lightly on her throat and undressed her. She begged to leave. She asked “if I do what I
want will you not kill me?” He said yes.
Issue: Whether jury could find elements of forcible rape though reasonable fear of force.
Holding: Reasonableness of V’s apprehension of fear and justification for not physically
resisting was a question of fact for the jury. It cannot be dismissed outright
• Shows a de-emphasis on requirement of force and a shift to understandable fear
from perspective of victim.

ii. People v. Warren

Facts: D approached biker and chatted w/her. He then carried her into the woods where
he performed several sex acts. V said she was paralyzed by fear and so did not resist
Issue: Whether victim’s explanation that she failed to fight back because of a paralyzing
fear of violence was based on a reasonable fear.
Holding: The court didn’t find V’s claim of paralyzing fear to be reasonable in these
circumstances. Consequently, her failure to resist conveys impression of consent,
regardless of her mental state.
 21

B. Resistance Requirement to Show Use of Force

Typically resistance has been read into statutes as a requirement somehow implicit in the elements
of force or non-consent.
• Only one American state retains the old requirement that the victim resist “to the utmost.”
• Several states require earnest resistance, and roughly ½ states require “reasonable resistance.”
• Remaining states no longer require resistance but consider it as evidence of lack of consent.

i. People v. Warren
• Threat can eliminate resistance requirement: if circumstances show resistance to be
futile/life endangering or V is paralyzed by fear, useless resistance isn’t required.
o No evidence of such circumstances here.
• W/o reasonable fear of physical force, unless V communicates her lack of consent in
some objective manner, the court can’t find rape by force overpowering resistance and
conviction for rape is inappropriate.
• Failure to resist conveys impression of consent, regardless of mental state

C. Coercion and Duress

i. Implied Threats?
a. State v. Alston
Facts: D and V had lived together and V left. D said he was going to “fix” her face
and that he had a right to have sex once more. She told him she didn’t want to. He
pulled her from a chair, took off her clothes, pushed her legs apart and penetrated.
Issue: Whether D’s acts amount to force and met the force element of rape.
Holding: NC Supreme Court overturned the lower court’s rape conviction, bc
though non-consent was obvious and unequivocal, “force” did not lead to
submission to sex. Found no implied threat.

ii. Non-Physical Threats

a. Traditional Common Law: No
1) State v. Thompson
Facts: Statute criminalized knowingly having sex w/o consent, defined as
when V “is compelled to submit by force or by threat of imminent death,
bodily injury, or kidnapping.” D, teacher, threatened to prohibit a student to
graduate high-school unless she submitted to sex.
Issue: Whether threat of non-graduation falls in statute’s def. of “w/o consent”
Holding: Intimidation by non-physical threat does not fall under the definition
of w/o consent – imminent death, bodily injury, or kidnapping.
• Would expanding statute violate due process by retroactive punishment?

2) Commonwealth v. Mlinarich
Facts: V submitted to D’s sexual advances after her threatened to send her
back to the detention home if she refused. V was a minor and in D’s custody.
Issue: Whether D’s threats fell under statute’s prohibition of threat of force.
Holding: This did not meet the threat of force requirement because the
legislature wrote the statue with the traditional definition of violence in mind.

b. MPC 213.1(2)
Allows conviction for “gross sexual imposition” when submission is by threat of force
or “any threat that would prevent resistance by a woman of ordinary resolution.”
 22

• How do you apply this woman of ordinary resolution standard? It is very vague.
o Do we infuse the ordinary woman with the particular characteristics of the
victim i.e. a high school student, etc?
• The MPC declined to extend liability where sex was used as part of a bargain

c. Newer State Laws

• Some states achieve a result similar to MPC by extending liability to situations
where consent is obtained by duress, coercion, extortion, or position of authority.
• The PA legislature adopted a statute defining “forcible compulsion” required for a
rape conviction as “compulsion by use of physical, intellectual, moral, emotional
or psychological force, either express or implied”
• It is unclear how far this extends but it obviously expands liability immensely.

d. How Far to extend coercion/retaliation?

1) State v. Lovely (NH)
Facts: D and V lived in D’s house. V refused sex and D threatened to kick
him out and get him fired. Satute made it a felony to coerce by threatening
retaliation.
Issue: Does kicking someone out of your house and attempting to get them
fired constitute as retaliation against the victim that meets NH’s standard?
Holding: The court found that this amounted to retaliation.
• This opened up a rabbit hole of endless hypos.
• What counts as retaliation? Must it be negative takings or does
refusing to give benefits qualify?

2) Persuasion v. Coercion?
o Schulhofer says coercion shouldn’t turn on degree of pressure but on
legitimacy of the proposal. A man’s “threat’ to withhold assistance isn’t
necessarily ever or always problematic.
o Chamallas states that refusal to regard economically coerced sex as rape
allows men to continue to use economic power to gain sexual advantage.

2. Eliminating the Force Requirement

A. Affirmative Consent Required
NJ and Wisconsin: Only affirmative permission counts as consent.

i. State in the Interest of M.T.S. (NJ)

Facts: NJ made sexual penetration using physical force or coercion a crime of 2nd degree
sexual assault w/o defining “physical force.” V consented to kissing and heavy petting and
D then engaged in sexual pentartion to which V had not consented.
Issue: Whether the element of physical force is met by an act of non-consensual
penetration involving no more force than necessary to accomplish that result.
Holding: Any act of sexual penetration engaged in by D w/o what a reasonable person
would believe to be affirmative and freely given permission of the victim to the act of
penetration satisfies the element of “physical force” and constitutes sexual assault.
• Consent can be indicated through words or actions that, in light of all
circumstances, demonstrate to a reasonable person affirmative and freely given
permission for the act.
• The law places no burden on the victim to express non-consent
 23

B. Absence of Consent Creates Crime

i. Nebraska
V must express lack of consent through words or conduct to make the victim’s refusal to
consent genuine and make the lack of consent reasonably known to the actor

a. State v. Gangahar (NB Court of Appeals)

Facts: D attempted to fondle V, she pulled away, said stop. D rolled on top of her
and she pushed him away. Jury wasn’t instructed to consider whether refusal of
consent was genuine and would be known as such to reasonable person.
Issue: Whether failure to instruct jury was error bc a jury could have found V’s
actions insufficient to make her refusal of consent reasonably known.
Holding: A jury could have concluded that officer’s conduct was not sufficient to
make lack of consent reasonably known. While she said no, the statute allows D to
argue that given all of victims actions or inaction “no did not really mean no.”

ii. New York §130.05 :

Lack of consent results from circumstances under which V clearly expressed that she did
not consent and a reasonable person in D’s situation would have understood such person’s
words and acts as expression of lack of consent to such act under all the circumstances

C. Defective Consent
i. Maturity
a. Youth: States always draw a bright line and set a specific age of consent. Sex
with anyone under that age is statutory rape.
• Concern with the young person’s capacity to make a mature decision as well as
social goal of deterring teen pregnancy and risk of implicit coercion
b. Mental retardation: a ground for invalidating consent, but more difficult to define.
• MPC: imposes liability when D knows that the person consenting to sex “suffers
from a mental disease or defect which renders her incapable of appraising the
nature of her conduct.” 213.2 (b)

ii. Incapacity – drugs and Alcohol

• All states impose liability for rape when the victim was completely unconscious.
• Nearly all states impose liability with a victim who was severely incapacitated by drugs or
alcohol that D gave her without her knowledge.
• Many statutes do not impose liability if V was in an incapacitated condition short of
complete unconsciousness or if someone other than D had secretly drugged V.
• Even greater barrier to liability when V is conscious but incapacitated by alcohol V
knowingly chose to consume
a. People v. Giardino
Defined incapacity by the effect of intoxicants on power of judgment
b. State v. Al-Hamdani
Defined incapacity by blood alcohol content that indicated the victim cannot
appreciate the consequences of her actions.

D. Deception
It is not clear whether deception can vitiate affirmative and freely given consent in states where
there must be affirmative consent. The following cases did not find deception incapacitating.

i. People v. Evans
 24

Facts: A man meets a girl at the airport and pretends to be a psychologist. Takes her
around and to an apt then says “You are in the apartment of a strange man. How do you
know I am really a psychologist? I could kill you.” She has sex with him.
Issue: Whether the words spoken by the defendant can be properly construed as threats;
whether controlling perception is that of V who interprets the words or the state of mind of
the person who speaks
Holding: The state of mind of the speaker is controlling because this goes to intent. The
court acquits because it finds no intent to threaten beyond a reasonable doubt; his words
could arguably be threatening or scolding.
• If he utters words that are taken as a threat by the person who hears them but
are not intended as such, there could be no basis for finding the necessary criminal
intent.

ii. Boro v. Superior Court

Facts: D called V and said she has a very serious disease and she must be hospitalized
or have sex w/someone treated to cure her. CA statute defined consent as “positive
cooperation, freely or voluntarily… [with] knowledge of the nature of the act or transaction”
Issue: Whether V didn’t have “knowledge of the nature of the act ” and this was known to
D. Does nature of act mean sex itself or sex in context?
Holding: The court found that V didn’t lack consent as she voluntarily cooperated in the
sex act. The court declines to stretch the “w/knowledge of the nature of the act” clause to
include deception bc statute also prohibits gaining consent by impersonating a husband. If
lack of consent included deception, impersonation clause would be unnecessary.
a. Later statutory amendment made “unconscious of the nature of the act” include
when V was unaware of character of the act bc D fraudulently represented that it
served a professional purpose.
II. MENS REA
1. Mistake of Fact
A. No Honest But Unreasonable Mistake of Fact Defense
i. Commonwealth v. Sherry
Facts: V went w/Ds to a country home, smoked pot, hung out. V claimed Ds had sex with
her but she verbally though not physically protested. Ds said she didn’t say no, was willing.
Issue: Whether the jury charge was improper bc it did not instruct on a defense of good faith
mistake of fact, which requires jury to find Ds had actual knowledge of lack of consent..
Holding: Mistake of fact w/o consideration of its reasonableness is no defense.

ii. Exception: Alaska

Requires proof of recklessness – an honest but unreasonable mistake is OK
 Justifies by claiming that dilution of resistance requirement increases risk that a jury will
convict where lack of consent is ambiguous.
 Legislature counteracted this risk by focusing on D’s understanding in the circumstances

B. Negligence Standard: Honest and Reasonable Mistake of Fact Defense

i. Most US states allow mistake defense only when error is honest, reasonable.

ii. None in PA
Commonwealth v. Fischer
Facts: 2 college students either previously engaged in either making out or D claimed rough
sex. V returned later and D forcibly had sex w/her while she verbally protested. D argued he
reasonably thought she consented bc of prior rough sex. He stopped after second no.
 25

Issue: Whether D’s counsel should have asked the court for a jury instruction that if D made
a reasonable mistake of fact as to consent, they could not find him guilty of rape. Whether
D’s counsel should counsel should therefore be found ineffective and D given a retrial
Holding: There was binding precedent in PA that there is no reasonable mistake of fact for
consent in rape cases. The court holds that the atty could not be considered ineffective for
failing to pursue a baseless claim.
 D argued that bc the statue defining rape changed to eliminate a force requirement, a
mistake of fact claim should be permitted. Court responds that an atty is not ineffective
for failing to argue an entirely novel claim

iii. Limiting the reasonable mistake defense

Ds can be limited from claiming reasonable mistake defense when they claim Vs actions were
totally unequivocally consenting.
Tyson v. State (Ind. App, 1993)
Facts: Tyson was charged with rape. He testified that V responded positively and
cooperated in the sex. V testified that she was terrified, objected and tried to fight him.
Issue: Whether the trial court erred in not allowing a mistake of fact defense
Holding: Conflicting versions of the story don’t support a mistake of fact defense bc
Tyson’s version undermines the element of force, doesn’t show mistake. Basically says
Tyson took away his entitlement to the defense by testimony it was entirely consensual.
• Tyson is denied the opportunity of having the jury think half the case is true.
• Unlike Indiana, most jurisdictions will allow people to raise somewhat inconsistent
defenses.

C. MA Strict Liability: No Reasonable Mistake

i. Commonwealth v. Simcock
Issue: Whether a reasonable mistake as to consent is a defense in a rape charge.
Holding: A belief the victim consented would not be a defense even if reasonable -
analogous to statutory rape cases that prohibit reasonable mistake regarding a victim’s age.

ii. Commonwealth v. Lopez

Court reasoned that if prosecution is required to prove that D used force, subjective culpability is
inherent in his actions so it is justifiable to have strict liability regarding knowledge of consent.
But what about if the element of force is met by implicitly threatening behavior?
Is it inevitable that D will realize that victim perceived his actions as threatening?

III. Marital Exemption

1. People v. Liberta (NY, 1984)
Facts: Wife obtained Protection from Abuse order against her husband. Liberta was visiting their son and
threatened to kill her and forced her to have sexual intercourse. Under NY statute rape only applied to a female
not married to the perpetrator but treated couples living apart under court order as not married. Liberta was
convicted of rape. Challenged on appeal, arguing equal protection violation discriminating by marital status.
Issue: Whether the distinction between different types of married couples was constitutional.
Holding: The court reviewed on rational basis review and found that any distinction based on marital status
including a marital exemption from rape liability is irrational and unconstitutional.

2. The Model Penal Code View

Drafted in the 1950s, the MPC preserves the marital exemption. Justified this move by arguing a desire not to
let criminal law intrude on marriage. Evil and violation is of a lesser degree when the D is already intimate w/V.
 26

3. Legislative Developments
• Half of the states have abolished the exemption or only exempted husbands from statutory rape
charges.
However ½ the states retain qualified versions of the exemption – by prescribing lower punishment for
marital rape or permitting prosecution only when husband has used the most serious kind of force

HOMICIDE
I. GRADING OF INTENDED KILLINGS
1. Grading of 1st/2nd Degree Murder
A. English Common Law: Malice Aforethought
Malice aforethought was a category to distinguish more serious intentional killings from less serious
intentional killings that qualified for exemption from the death penalty given for all felonies
• Murder by malice aforethought encompasses: (1) intention to kill (2) intention to inflict grievous
bodily injury (3) extremely reckless disregard for value of human life (4) felony-murder

B. PA Statutory Revision: Premeditation

PA wanted to reserve capital punishment for the most serious killings. To distinguish them, PA invented
the deliberate premeditation standard. PA laid out three degrees of murder:
• 1st Degree: Intentional killing by means of poison, lying in wait, or any other kind of willful,
deliberate, and premeditated killing.
• 2nd degree: committed while D was engaged in the perpetration of an enumerated felony (robbery,
rape, sexual intercourse by force/threat of, arson, burglary, kidnapping)
• 3rd Degree: All other kinds of murder

i. No Appreciable Time Needed for Premeditation

1. Commonwealth v. Carroll (Supreme Court of PA, 1963)
Facts: D pled guilty to murdering wife. He said he thought about the bad things she did,
then he thought of the gun. Saw his hand move. Psychiatrist said he acted automatically.
Issue: Whether killing was premeditated. Should psychiatrist’s testimony influence this?
 27

Holding: This was willful, deliberate, and premeditated. D was treated badly by his wife
but he thought about all of this, remembered the gun, and killed. There is no minimum
time required to premeditate and deliberate. Psychicatric testimony isn’t controlling.

2. Young v. State(Ala Appeals, 1982)

Facts: An argument suddenly broke out, D shot 2 men and both died.
Issue: Whether premeditation was possible in such a short time-span
Holding: No appreciable space of time between formation of the intention to kill and the
act of killing is required. Premeditation may be formed as killer pulls the trigger.

ii. Some Space of Time Needed Between Formation of Intent and Act
1. State v. Guthrie (Court of Appeals West Virginia, 1995)
Facts: V was teasing D and hit him in the nose. D became enraged and stabbed V. D
has mental issues including obsession with his nose, depression, personality disorder.
Issue: Whether premeditation requires space of time between intent and killing
Holding: Premeditation must be distinguished from bare intention by some length of
time between forming intent and killing. Must be evidence that D weighed his decision.

2. Proof of Premeditation
When jurisdictions require actual reflection, proof of this is needed.
• Guthrie Court said, absent statements by D, juries must consider all circumstances.
o Relevant factors include: (1) the relationship of D and V and its condition
at the time; (2) whether there was plan or preparation re: type of weapon or
where killing occurred; (3) reason or motive to take life. No one factor is
controlling.
• A CA court laid out 3 categories of evidence that support a finding of premeditation
o Planning activity
o Facts about D’s prior relationship or behavior w/V that may show motive
o Nature/manner of killing indicating deliberate intention w/ a preconceived plan

C. Debate over Premeditation

i. Justification
In theory these are situations when people are thinking about what they are doing, so they can
hear the voice of the law. This defines a category of people who are presumptively capable of
appreciating the consequences but do it anyway.
• Speaks to retributive and utilitarian perspectives

ii. Insufficient Distinguishing

Some suggest that premeditation is present when people struggle with the decision to kill.
Conversely, individuals that can kill at the drop of the hat are potentially much more dangerous.

1. People v. Anderson (CA, 1968)

Facts: D killed the daughter of his girlfriend, inflicting almost 60 wounds.
Holding: Evidence is insufficient to support premeditation and deliberation because no
evidence that D planned the killing, nothing in the prior relation to reveal a motive, and
the manner of killing suggest explosion of violence instead of preconceived design to kill.

2. State v. Forrest (NC, 1987)

Facts: D took a gun w/him to visit his terminally ill dad in the hospital and, sobbing, killed
him w/ a single shot to the head. He was convicted of 1st degree murder.
 28

Holding: NC Supreme Court upheld murder conviction

D. Current State of Law

Now only about 14 states still use the premeditation and deliberation standard in a real way. The most
important one of them is California.

2. Grading of Extreme Recklessness Murder

Malice is implied because there is a wanton and willful disregard of the likelihood that behavior will cause death
or serious bodily injury. Characterized as instances where the actors “as good as” intended to kill his victim bc
he displayed unwillingness to prefer the life of another person to his own objectives.

A. Common Law
Described as acting with an abandoned, depraved, malignant heart

i. Commonwealth v. Malone
Facts: D suggested to deceased that they play Russian roulette. D placed gun on deceased’s
side and pulled the trigger three times. Gun had only one bullet in it and D didn’t expect to shoot
bc he put the bullet in the last slot. D had no intention to harm. Convicted of 2nd degree murder
Issue: Whether the facts only justified a conviction involuntary manslaughter not murder.
Holding: For murder there must be malice, which the court defines as a wicked disposition
evidence by intentional act in callous disregard for harmful effects on others. Found murder.

B. Statutory
Described as extreme recklessness murder, updated from CL to a “conscious disregard for life”
• This doesn’t require death to be more likely than not; v. low probability will get conviction.
• The distinction matters bc it has a higher sentence, while probation is permitted w/manslaughter.
• Contributory negligence is not a factor as a formal doctrine, but may be a factor informally in
determining causation.

C. Model Penal Code

Treats an unintended killing as murder when it is committed recklessly under circumstances that show
D’s extreme indifference to the value human life (§210.2).

D. Distinguishing between Extreme Recklessness Murder and Involuntary Manslaughter

This is tricky but establishing extreme recklessness murder hinges on the extent of known dangerous
risk at stake and lack of or extremely weak mitigating factors.
SEE Unintentional Killings Section

3. Grading Between Murder and Manslaughter

A. Common Law: Provocation
People are ordinarily reasonable. Yet occasionally reason is thrown off and people do crazy things.
After a reasonably short cooling time, reason again takes control and you can expect people to be fully
aware of and comply with legal standards.
• Enumerated
Courts listed classes of provoking circumstances considered adequate as a matter of law:
• Extreme assault or battery
• Mutual combat
• D’s illegal arrest
• Injury or serious abuse of a close relative of D
• Sudden discovery of a spouse’s adultery.
 29

o Whether witnessing is required has divided the courts on the adultery issue
Evidence of these circumstances will bring a case to the jury and allow a finding of provocation and
mitigate the charge of murder to manslaughter.
• Case by case
Others say provocation is a question of fact and should be determined case by case. (minority rule)

i. Rationale
a. Provocation as Partial Excuse
• If circumstances are so awful that D loses control of himself, this indicates that D
was not driven by extraordinarily depraved character but extraordinary circumstances.
• We don’t need to be as harsh, bc they don’t show bad personal characteristics
and these circumstances are not likely to be repeated.

b. Provocation as Partial Justification

• Someone is, to some extent, morally justified in making a punitive return against
someone who intentionally causes him serious offense.
o Yet problematic to suggest a provoking person is less deserving of protection.

c. Should provocation be abolished?

• Reasonable people never kill no matter how much they are provoked.
• The value of human life must trump the law’s sympathy for the D’s response.
• Provocation often justifies men killing women under a notion that she deserved it.
(feminist)
• Counter Argument: There is a distinction in moral blameworthiness between killing in
anger v. killing out of greed, jealousy, political reasons, etc. (retributive)

ii. Provocation by Words?

Generally there was no defense for provocation by words. Some courts have softened this and
permit provocation by words when the words disclose provoking behavior.
a. Girouard v. State (MD Appeals, 1991) ~ words not sufficient to provoke
Facts: V taunted and verbally abused D, telling him she filed charges against him for abuse.
D killed her and confessed. Convicted for 2nd degree murder.
Issue: Whether provocation should be limited to the categories recognized in CL.
Specifically, whether words alone are adequate provocation.
Holding: V’s verbal provocation was not sufficient to inflame a reasonable man. It also falls
outside the well-defined classes of provocation recognized as matter of law.
• Critique of this definition of provocation is that reasonable people do not kill.

b. Maher v. People (MI Supreme Court, 1862) ~ Case by case determination

Facts: D saw his wife and V go into the woods. Then followed V to a bar. Just before D
entered, a friend told him that V and D’s wife had sex in the woods. D shot V.
Issue: Whether the evidence was sufficient for provocation on basis of words.
Holding: The judge rejects the reasonableness of a D losing control and asks whether the
provocation was sufficient to cause a person to lose control of themselves. Court says that
juries should decide what provokes ordinary ppl. Provocation is Q of fact.

iii. Sexual Infidelity

Courts that permit killings immediately following discovery of sexual infidelity to qualify as
provocation defense sometimes interpret the boundaries of the category very narrowly.
a. Dennis v. State (MD Appeals 1995)
 30

Facts: D saw his wife in sexual embrace with another man, burst into the room, shot him.
Holding: Trial court held that the jury could only find legally adequate provocation if D had
suddenly discovered sexual intercourse taking place, not other sexual intimacy.

b. State v. Turner (Ala Appeals 1997)

Facts: Enraged woman shot and killed a sexually unfaithful boyfriend.
Holding: Voluntary manslaughter instructions weren’t needed bc D and V weren’t married.

iv. Cooling Time

The CL view is that too long a lapse of time between provocation and killing will render the
provocation inadequate and deprives D of an instruction of possible voluntary manslaughter .
• The cooling time limitation can sometimes be surmounted by the argument that an event
immediately preceding the killing had rekindled the earlier provocation

a. United States v. Bordeaux (8th Cir, 1992)

Facts: D was told that V had raped D’s mother. Later in the day, D’s mother confirmed. In
the evening D severely beat V and left him in the room. D returned and killed him.
Issue: Whether the time between provocation and killing lapsed into cooling time.
Holding: Evidence of prior argument or continuing dispute insufficient to warrant a
provocation charge in the absence of a triggering event.

b. State v. Gounagias (WA 1915)

Facts: D was forcibly sodomized by V. D tells V who assaulted him not to tell anyone. It
becomes clear that V told other people. A week later, D kills his attacker.
Issue: Whether the cooling time of a week made provocation inadequate
Holding: A week was sufficiently long that a reasonable person would have cooled off.
• Critique: Yet this is not realistic because brooding makes someone more enraged

c. Commonwealth v. LeClair
Facts: D suspected his wife of infidelity for several weeks and, upon confirming his
suspicions, he strangled her in a rage. Holding: Adequate cooling time, no provocation.

d. People v. Berry
Facts: A provoked D waiting for his victim in her APT for 20 hours before killing her.
Holding: D was entitled to manslaughter instruction bc jury could find that time aggravated
instead of cooled Ds long-smoldering grievance.

v. Non-Provoking Victims ~ generally lose defense (exception: mistake of fact)

Sometimes D kills someone other than the provoker. Courts generally have not allowed defense
of provocation unless there is a mistake of fact about V’s identity.
• Is it unrealistic to insist that D who lost his self-control be directed only against a
provoker?
a. State v. Mauricio
Holding: Manslaughter charges are appropriate when D made a mistake of fact about the
identity of the victim, thinking it was someone who seriously assaulted him minutes before.

b. Rex v. Scriva
Facts: D killed a bystander trying to restarain him Holding: Courts granted no provocation
defense.
 31

c.People v. Spurlin
Facts: D killed his wife after an argument about sexual infidelity and then, in a rage, killed
his sleeping son as well. Holding: Courts granted no provocation defense.

vi. Provoking Defendants ~ don’t necessarily lose the defense

a. Regina v. Johnson
Facts: D made threatening, insulting remarks to V. V attacked D and D stabbed V.
Holding: Appellate court overturned trial court’s refusal to instruct on provocation. That D
was provoking does not nec. result in provocation being kept outside jury consideration.

B. Model Penal Code: Extreme Emotional Disturbance

Shifts doctrine from ltd. enumerated circumstances into consideration of mental/emotional disturbance.
• Expands the mental state beyond simply rage to other emotional or mental states (panic, fear, etc).
• 1st piece is subjective: was the killing done in the state of extreme emotional disturbance?
• 2nd piece is both subjective and objective: you first take facts as D thought them to be (subjective)
then assess the facts objectively to determine if the circumstances would trigger extreme emotional
disturbance in a reasonable person.
• The disturbance does not have to be triggered by V and there is no cooling time component.
i. People v. Casassa (NY Appeals) 1980
Facts: D is obsessed with the victim, engages in bizarre behavior, and ultimately kills her
when she rejects his offer of many bottles of alcohol.
Issue: Whether D can get a manslaughter instruction for acting under extreme emotional
disturbance that was reasonable under the circumstances as he believed them to be.
Holding: D acted under extreme emotional disturbance but disturbance was so peculiar
that the circumstances as he believed them wouldn’t cause EED in a reasonable person.

ii. State v. Elliot (Conn 1979)

Facts: D suffered from an overwhelming fear of his brother and one day he killed him
Issue: Whether there must be provoking/triggering event for emotional disturbance.
Holding: No provoking/triggering event is required. The killing can be due to mental
trauma causing D to brood and then react violently, seemingly w/o provocation.

iii. People v. Walker

Facts: D was a drug dealer who had been embarrassed publically and got into an
argument w/ a supplier who had refused to sell to him for a while. He killed the supplier.
Holding: Confirmed trial court’s refusal to instruct on extreme emotional disturbance.
Dissent: if evidence of extreme emotional disturbance, it is for the fact finder to determine
whether the disturbance was reasonable. A judge shouldn’t take this away from jury.

iv. Reasonable Person Requirement

Determining the reasonableness of the actor’s extreme emotional disturbance must be done
from the viewpoint of someone in D’s situation under the circumstances as he belived them.
• “Situation” is designedly ambiguous.
• Blindness, shock from traumatic injury, extreme grief, all come under situation.
• Idiosyncratic moral values (i.e. the rightness of killing) are not a part of situation.
• For those in between factors, the test is whether the actor’s loss of self-control can be
understood in terms that arouse sympathy in the ordinary citizen.

a. Culture?
Should D’s nationality and cultural background be taken into account by taking the
 32

perspective of a reasonable person of D’s cultural background?

Argument against this is we want to hold people to our cultural norms and also that this
becomes v. unmanageable.

b. Battered Women?
i. State v. McClain
Facts: D suffered from battered women’s syndrome from psychological
humiliations that triggered a mental breakdown and led her to kill BF
Holding: BWS was irrelevant under reasonable person test

c. Mental Disorder?
• Wis Court held psychotic depressive illness and the emotional distress of a man
whose marriage was disintegrating irrelevant
• CA court didn’t admit evidence that D was a traumatized war veteran who snapped.

C. NY’s Approach
Courts’ treatment of the defense basically changed it to require mental infirmity less than insanity.
Courts tend to reject emotional disturbance characteristic of ordinary people.
• Made it an affirmative defense. As D has the burden of proof, this effectively compels D to testify.
• You generally don’t want the D to take the stand if you can avoid it. For requiring proof beyond a
reasonable doubt is very powerful in presuming innocence but once D takes the stand it
practically turns into whether jury believes D or not.
• This makes it a tough bargain for D and has been one reason why it has not proved popular

II. GRADING OF UNINTENDED KILLINGS

1. Distinguishing Between Civil Negligence and Criminal Negligence/Manslaughter
B. Common Law
Required showing of wanton and reckless conduct that showed disregard for life and safety of others.
It is unclear whether this is really recklessness or negligence, a murky in-between. Point is that it is
above and beyond civil negligence ~ a gross deviation in ordinary standard of care.

i. Commonwealth v. Welansky (MA Supreme Court 1944)

Facts: Fire at a nightclub. Fire exits were blocked and the club used with flammable material. D,
owner, wasn’t present, but it is imagined he should know the risk.
Issue: Whether D should be subject to penalty of involuntary manslaughter (wanton+reckless?)
Holding: To constitute wanton or reckless conduct, distinguished from civil negligence, grave
danger to others must have been apparent and D must have chosen to run the risk in disregard
of probable consequences.
• If D knew of grave danger than this is controlling regardless of reasonable man standard
• If D did not know of grave danger, he is still liable if an ordinary man would have realized.
o Murky on how this is distinguished from negligence bc D is liable even if no
knowledge of risk as long as he should have known it.

ii. State v. Barnett

The negligence must be culpable, gross, or reckless. Essentially, it must be such a departure
from what would be the conduct of an ordinarily careful man under the circumstances as to be
incompatible w/proper regard for human life or amounting to an indifference to consequences.
 33

iii. Contributory Negligence

Unlike civil cases, in criminal cases the deceased’s contributory negligence is no defense.

a. Dickerson v. State
Facts: D drove into and killed its drunk driver who stopped car w/o lights in the road.
Holding: Contributory negligence is no defense to manslaughter.

b. Yet, contributory negligence might bear on whether D’s conduct was a proximate cause:
e.g. person driving after drinking kills a drunk person who leaps into the road.

C. MPC Distinguishes Manslaughter from Negligent Homicide

Model Penal Code Alternative §210.3
Creates two crimes:
• Manslaughter when D is aware of the substantial and unjustifiable risk and disregards it
o Disregard involves a gross deviation from the standard of care that a reasonable person
would observe in the actor’s situation
• Negligent Homicide when he is not aware of the risk but should have been.
o Failure to perceive it was a gross deviation from the standard of care that a reasonable
person would observe in the actor’s situation

i. How to Measure Substantial Risk in Manslaughter?

People v. Hall (CO Supreme Court, 2000)
Facts: D skier was skiing out of control and collided w/a skier below, killing him. D was
charged with reckless manslaughter. Country court found that skiing too fast is not a risk
likely to cause death. District affirmed finding it not more likely than not to cause death.
Issue: Must risk be more likely than not to cause death to charge D w/manslaughter?
Holding: Substantial risk isn’t measured by probability of death. Relatively improbable
events can still be substantial.

D. The Objective/Reasonableness Standard for Determining Recklessness/Negligence

a. State v. Williams
Facts: Husband and wife were charged with manslaughter for failing to supply their 17 month
child with necessary medical attention. They thought he had a toothache, it got worse and
worse and the child died. Ds didn’t bring child to the doctor.
Holding: Convicted under WA law for ordinary negligence (not gross) in failure to exercise
ordinary caution that a reasonable person would use in the same circumstances.

b. Defense of Objective Standard:

• Holmes in Commonwealth v. Pierce (Dr soaks patient in kerosene) said reasonableness
test applies a general standard of conduct for the community
• MPC: When ppl know that punishment may follow inadvertent but improper risk they are
given an additional inventive to think and take precautions before acting.

c. Criticism
• Retributive: in a moral wrong theory, an honest mistake shouldn’t be punished.
• Utilitarian: the deterrent effect of a legal sanction for mistake is questionable.

d. Individualization
• HLA Hart said the problem w/the objective theory is that it doesn’t consider whether an
 34

individual is capable of complying, given D’s mental and physical capacity.

o Absent a consideration of D’s incapacity to conform, absolute liability results
• MPC rejects full individualization but allows some consideration of it by referring to the
“care exercised by a reasonable person in the actor’s situation.”
o Commentary to §2.02 (Culpability) & Edgmon v. State:
• If D was blind or had just been injured, are material under “situation”.
• D’s heredity, intelligence, or temperament are not material
• Leaves the specifics for courts to figure out

a. State v. Everhart (NC 1977)

Facts: Young girl with IG of 72 gave birth in hr bedroom and thought the baby had been
born dead. She wrapped it in a blanket and the baby smothered to death.
Holding: Reversed a conviction for involuntary manslaughter holding that bc of D’s IQ
and the accidental nature of the death the state hadn’t proved culpability

b. Walker v. Superior Court

Facts: D’s daughter became very ill but D was a Christian scientist and elected to treat
her daughter with prayer rather than medicine and the child died.
Holding: Sustained manslaughter. Criminal negligence must be evaluated objectively
and religious considerations do not come in under the actors situation.

2. Distinguishing Between Murder and Manslaughter

A. MPC
Difference between Extreme Recklessness Murder and Reckless Manslaughter is based on the extent
of known dangerous risk at stake and lack of or extremely weak mitigating factors.
• Manslaughter for recklessness that is a gross deviation from law-abiding ppl’s standard of care.
• Murder for recklessness that manifests extreme indifference to the value of human life

i. People v. Roe
Facts: D killed his friend in the course of a game of Russian roulette.
Holding: Once it is proven that D knew the risk, evidence of D’s subjective mental state isn’t
relevant to the element of depraved indifference. The issue is whether the objective
circumstances are such that D recklessly diregarded a very substantial risk of death.
o Degree of risk to life is what shows depraved indifference, not subjective mental state

B. NY Penal Code
Substituted depraved indifference to human life instead of the MPC’s extreme indifference but
otherwise took up the whole provision.
• How do you limit “depraved indifference to human life” to not obliterate 1st degree manslaughter,
which includes death resulting from intentional infliction of serious personal injury
• NY opens the door for prosecutors to treat any manslaughter case by intentional infliction of injury
as a murder case if you can show “depraved indifference.”
• NY has tried to limit this by requiring that you prove depraved indifference to many people.

C. Murder by Drunk Driving

Generally the theory is that the D had actual awareness of great risk of fatal harm by drunk driving
However the legislature has now created a category of vehicular homicide because juries were
reluctant to convict serious crimes for everyday activities like driving.
 35

i. United States v. Fleming (4th circuit, 1985)

Facts: D was driving wildly while seriously drunk. He was convicted for 2nd degree murder.
Issue: Whether to be convicted of murder D had to have intentionally engaged in behavior that
causes great risk to others’ lives. D claims that bc drunk no intent.
Holding: This is a conviction for reckless murder. Intoxication can’t undermine element of
recklessness when it is ordinary (manslaughter) or extreme (murder).

ii. Pears v. State

Facts: D was warned by several ppl that he was too drunk to drive. He drove v recklessly and
killed two people.
Holding: Affirmed murder conviction under a charge of extreme indifference to value of
human life bc warnings made him abundantly aware of how dangerous such behavior was.

D. Intoxication, No Defense for Recklessness

i. Model Penal Code 2.08: No Intoxication Defense (of not knowing risk) for Recklessness
(1) Voluntary intoxication is not a defense unless it negatives an element of crime.
(2) When recklessness establishes an element of the offense, if the actor due to self induced
intoxication, is unaware of the risk of which he would have been aware had he been sober, such
unawareness is immaterial.
• It is possible to be so drunk as to negative requirements of purpose or intention. For
instance, a very drunk person breaks into a home but not with a purpose to do crime.

ii. NY Law: No Intoxication Defense for Recklessness

Intoxication is no defense but evidence of intoxication may be negate a material element.
In definitions of recklessness, a person is reckless even if he does not appreciate a risk when
the reason for not appreciating it is that D is voluntarily intoxicated.

iii. Also No Defense for Extreme Recklessness

State v. Dufield (NH Supreme Court)
Issue: Whether extreme indifference required showing subjective state of indifference, which
could be eliminated by evidence of intoxication.
Holding: indifference is objectively interpreted by the circumstances that show a degree of
divergence from the norm of acceptable behavior that is even greater than gross deviation

3. Felony Murder

A. The Basic Doctrine: Common Law

Actus Reus: US CL makes D liable for murder whenever a killing is committed in course of a felony.
Mens Rea: replaces the mens rea required for murder with whatever mens rea is required for felony.
Causation: D must have caused V’s death. Common formulation of this requirement is that the result
must be the natural and probable consequence of D’s action or foreseeable – it must be fairly
attributable to D and not to intervening action of another or mere coincidence.

i. Regina v. Serne (England 1887) ENGLISH COMMON LAW

Holding: Any act known to be dangerous to life and likely to cause death, which is done for the
purpose of committing a felony and actually causes death, should be murder.
 36

ii. People v. Stamp (CA Appeals, 1969) AMERICAN COMMON LAW

Facts: D robbed jewelry store at gunpoint and V had a heart attack because of fear.
Issue: Whether D is liable for murder of V under the felony-murder rule.
Holding: D is strictly liable for all killings committed by him or his accomplices during a felony.
• Whether the death was a natural or probable cause of the robbery is irrelevant as long
as V’s predisposing physical condition is not the only substantial factor in his death.
• The D takes his victim as he finds him.

iii. Rationale
Felony Murder does not take an otherwise innocent person and call him a murderer, it ups the
penalties (greatly) for an act that is otherwise criminal. It is a grading rule.
In favor:
• It encourages felons to be very careful while committing felonies
• Police testify that felons have claimed to try to commit felonies more safely bc of the rule
Against:
• Academic critiques argue that this is a form of strict liability – it substitutes the malice
mens rea required for murder with the mens rea required for whatever felony.
o Punishment is not proportional to wrongdoing because there is no malice
• Accidents or coincidences of causation can hugely influence whether someone is guilty.
• Felons are not actually deterred

B. Model Penal Code §210.2

Recommended eliminating the felony-murder rule but provided that for murder by a reckless act
“manifesting extreme indifference to the value of human life:”
• the fact that 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 by threat of force, arson, burglary,
kidnapping, or felonious escape”
• creates a rebuttable presumption that the required indifference and recklessness existed.

C. The Midemeanor-Manslaughter Rule/The Unlawful Act Doctrine

i. Basic Doctrine
In some states (including California), a misdemeanor resulting in death can provide basis for
an involuntary manslaughter conviction without proof of recklessness or negligence.

ii. Limitations on the unlawful-act doctrine

a. Proximate cause
i. Commonwealth v. Williams: Court held that misdemeanor of failing to renew
driver’s license had no causal relationship to an accident that resulted in a
death. D could not be convicted for manslaughter.

b. Regulatory Offenses
Some courts restrict to malum in se as opposed to malum prohibitum misdemeanors.

c. Dangerousness
Other approaches is to limit the doctrine to misdemeanors that rise to the level of
criminal negligence, or to violations that evince a marked disregard for the safety of
others, or misdemeanors that must be dangerous to human life under cicumstances of
commission.
 37

D. Statutory Reform
• England has abolished the rule.
• MPC replacement w/rebuttable presumption has had limited success.
• PA and CA designated certain particularly dangerous felonies, arson, rape, robbery, and burglary
as the only felonies on which 1st degree felony-murder conviction could be obtained.
o A killing in the course of a non-designated felony becomes murder in the 2nd degree.
• NY enumerates particular felonies on which a felony murder conviction may be obtained.
o Other felonies cannot serve as the basis for conviction of any form of culpable homicide.
o IL allows non-enumerated felonies to be the basis of a manslaughter conviction
• Other states require some culpability before a killing be graded to murder – the D must have acted
at least recklessly (DL) or cause death by an act clearly dangerous to human life (TX)

E. Judicial Reform
i. Abolition
Michigan courts abolished it. Because the statute called the death that resulted a murder w/no
further definition the court interpreted it as raising what is otherwise murder to 1st degree
murder. Holding, “it is no longer acceptable to equate the intent to commit a felony w/the intent
to kill.”

ii. Constitutional Issues

• It is probably constitutional, though the courts have not addressed this directly. The courts
however have found that strict liability is appropriate.
• The Court limited liability when reviewing proportionality of the death penalty for felony
murder when the actor had not participated in or encouraged the behavior.

F. The “Inherently Dangerous Felony” Limitations

An approach to limiting 2nd degree felony-murder convictions to felonies that are inherently dangerous.
• CA looks at how the abstract statute is defined, apart from how it was committed.
• More common approach looks to how the felony was committed w/2 variations:
o Asking whether it was committed in a way that created a foreseeable risk (Hines)
o Whether it created a high probability that a person would be killed (Hines dissent)

i. People v. Phillips (Supreme Court CA, 1966)

Facts: A child had cancer in her eye. A Dr. fraudulently told them he could cure her w/o surgery.
She died. The felony here was grand theft by deception.
Issue: Whether D is liable for felony-murder when CA allows felony-murder only in felonies
inherently dangerous to life.
Holding: The felony for grand theft by deception is not inherently dangerous generally. The
felony cannot be defined by the facts involved for the purpose of determining its inherent
danger.

ii. People v. Henderson (CA 1977)

Facts: D held V hostage by gunpoint. When V ducked and attempted to deflect the gun it went
off and killed him. D was convicted of 2nd degree felony-murder based on false imprisonment.
Issue: Whether false imprisonment by menace, fraud, or deceit is inherently dangerous.
Holding: False imprisonment is not inherently dangerous and prosecution cannot specify the
felony to false imprisonment by violence because it was not split up this way in the statute.
 38

iii. People v. Stewart (Supreme Court of RI, 1995)

Facts: Mother of an infant went on a crack binge for 2-3 days in which she neither fed nor cared
for her infant who died of dehydration. Convicted of 2nd degree felony murder for the felony of
wrongfully permitting a child to be a habitual sufferer.
Issue: Whether the felony of permitting a child to be a habitual sufferer should be considered in
the abstract or according to the case at hand to determine if it was an inherently dangerous act.
Holding: The court considered the specific circumstances involved and concluded that
permitting a child to be a habitual sufferer was inherently dangerous in this case.

iv. Hines v. State (Supreme Court of Georgia, 2003)

Facts: Hines mistook his friend for a turkey and shot him while on a hunting expedition.
Convicted for felony murder w/felony of a convicted felon’s possession of a firearm.
Issue: Whether this felony can be construed as inherently dangerous to human life.
Holding: Considered the specific circumstances: drinking while hunting, knew others were in
area, and at dusk. This violation of prohibition of a firearm created foreseeable risk of death.

G. The Merger Doctrine

Merger Doctrine is an effort to protect the structure of homicide law, which has is a defense of
provocation that brings a murder charge down to manslaughter.
If you allow assault to be charged as first degree murder through the felon-murder, it takes away the
defense that would bring it down to voluntary manslaughter bc murder mens rea is subsumed in the
mens rea for the felony.

i. People v. Ireland (CA)

Facts: D shot his wife but claimed that he did not have the required mens rea. The trial judge
instructed that D could be held for felony-murder, w/the felony as assault w/ deadly weapon
Issue: Felony murder charge?
Holding: This is impermissible bc it would make all intentional killings w/a deadly weapon
murder, regardless of the circumstances. Manslaughter bc of provocation would be impossible.

ii. People v. Wilson (CA 1969)

Facts: D was convicted for burglary with the intent to commit assault with a deadly weapon.
Issue: Felony murder charge?
Holding: This merges with murder. Burglary w/intent to assault is excluded from felony-murder

iii. People v. Burton (CA Supreme Court, 1971)

Facts: D killed someone in the course of committing an armed robbery
Issue: Felony murder charge?
Holding: California court refuses to extend merger doctrine to armed robbery.
Establishes the independent purpose test: If D had a felonious purpose other than inflicting
personal injury, then felony-murder charge is permissible.

iv. People v. Robertson (CA, 2004)

Facts: D shot and killed V who was stealing hubcaps. Said he was trying to scare them away.
Issue: Whether he can be convicted of felony-murder on predicate felony of discharging firearm
in a grossly negligent manner.
Holding: The court upheld bc found independent purpose in shooting the gun - scaring V away.
Dissent: points out the absurdity that the law gives lesser penalties to those who intend to inflict
physical harm and is harsher on people who have no desire to inflict physical injury.
 39

H. Killings Not “In Furtherance” of the Felony

All participants in the predicate felony are potentially liable for any homicide that results from the felony.
Issue: What if one of the felons goes off on his own and kills someone in the course of the felony?
Rule: The cofelons are only guilty if the killing can be characterized as in furtherance of the felony.
• Circumstances where in other felon’s behavior was unexpected? (i.e. bringing a gun if told not to)
Still characterized as nonetheless in furtherance of the felony.
• Felons get out of a felony murder charge if they can characterize the cofelon’s action as going off
on a frolic on their own.

i. United States v. Heinlein (DC 1973)

Facts: 3 Ds participated in a rape. V defended herself by slapping Heinlein who became
enraged and killed her.
Issue: Can the other Ds be charged w/felony murder as cofelons?
Holding: Not liable for felony murder bc Heinlein’s actions were unanticipated and not in
furtherance of the common plan, so they could not be attributed to them.

ii. People v. Cabaltero (CA Appeals, 1939)

Facts: Gang leader tells cofelons not to do any violence. One fired shots and the leader gets so
angry that he killed the cofelon.
Issue: Are the other cofelons liable for felony murder?
Holding: yes because the shooting was connected to the ongoing felony and so was not the
shooter’s “frolic of his own”

iii. Killings by Nonfelons

When can killings by nonfelons but that are incited by the felony be a grounds for holding felons
accountable for felony murder?
2 theories:
• Agency theory: only killing by cofelon or someone acting in concert w/cofelon will have
liability for felony-murder because cofelons act as each others’ agents.
• Proximate cause theory: the issue is whether the killing was within the foreseeable risk of
the commission of the felony
Agency theory used to be favored but more recently states are adopting proximate cause theory

a. State v. Canola (Supreme Court of NJ, 1977)

Facts: D w/3 cofelons were in the process of robbing a store when owner shot one of
the cofelons. This conduct was justified bc owner was meeting deadly force w/deadly
force
Issue: Whether the felons guilty of the justfied killing of the cofelon by the nonfelon.
Holding: The killing must be done by one of the cofelons – the theory is that the felons
act as the agents for one another.
Dissent: The rule should be proximate cuase with an exception for the death of a
cofelon, which would be calssified as a justifiable homicide and not under the statute.
• NJ adopted the dissent’s approach by statute

b. New York Approach:

“a person is guilty of murder if I the course of and in furtherance of [designated
felonies[ he or another aprticipant causes the death of a person other than one of the
participants.
• This mixes up the agency (in furtherance of) and proximate cause (causes) theory
 40

• NY Court of Appeals chose the proximate cause interpretation and upheld a felony
murder conviction where a policeman was fatally shot by a fellow officer

c. MPC Approach
The Malice of the felon can be transferred to the nonfelon who kills a bystander during a
highly dangerous felony
• If a robber shoots at a policeman with intent to killm and provokes him to return
fire, which kills a bystander, the robber who initiates the gunfire could be charged
w/purposeful murder.

iv. When does felony murder liability attach and when does it end?
a. Attach:
Usually at the point of attempt liability

b. End:
i. People v. Gillis
Facts: D commits burglary and drives away. V calls police. Miles away, police
recognize the car and chase him. D drives recklessly, loses control, kills
someone
Holding: Michigan Supreme Court ruled that he was guilty of felony murder.

ii. HYPO: What if the police recognize him many weeks later and chase him?
Jurisdictions differ on how to go about cutting off liability.
• All jurisdictions say death by the danger that was created by the crime is
grounds for felony murder, even if the D is no longer a danger.
• An arbitrary doctrine requires principles of limitation. Many doctrinal limits are
done by brute force (statute), which don’t require coherent rationales.

CAUSATION
I. FORESEEABILITY AND COINCIDENCE
A. Common Law
Usually courts focus on foreseeability and ask the jury whether D was a substantial cause of the events
• Transferred Intent: when A shoots B and randomly, unexpectedly kills C. A is liable for C’s death.
o Foreseeability rule doesn’t apply here

B. Model Penal Code 2.03

 41

(1) Conduct is the cause of a result when but for the conduct, the result wouldn’t have occurred.
(2) When purposely or knowingly causing a particular result is an element of an offense, the element is
not established if D didn’t purposely or knowingly cause the actual result. Unless:
a. Transferred Intent: The actual result is only different in that it affects a different person or
property or in that it would have been more serious or more extensive than that caused. (
b. Foreseeability: The actual result involves the same kind of injury or harm as that intended
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, it is not
established if the actual result isn’t within the risk of which D was/should have been aware. Unless:
a. Transferred Intent: The actual result only differs from the probable result in that it affects a
different person or property or that it would have been more serious or extensive
b. Foreseeability: 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 gravity of his offense

C. State Penal Code

Most state codes don’t include explicit rules for determining causation; courts are left to resolve
causation issues on basis of common law. Roughly a dozen states have adopted MPC

D. Factual and Proximate Cause

i. People v. Acosta (California Appeals Court, 1991) ~ PROXIMATE CAUSATION
Facts: D tried to evade police cars and helicopters that were following him. The helicopters
collide, killing the pilots, who may have been negligent. 1st helicopter crash during a chase ever.
Issue: Whether the evidence shows D as proximate cause and thus liable for negligent murder.
Holding: CA uses a “highly extraordinary result” standard to objectively assess foreseeability.
Here, the finding of proximate cause is appropriate bc there is appreciable probability that the
pilots may negligently crash. Causation is satisfied. (Yet Acosta wasn’t convicted for murder bc
no evidence of the required mens rea of conscious disregard of risk)

ii. State v. Muro (Neb. 2005) ~ FACTUAL CAUSATION

Facts: D found that husband had beaten daughter and fractured her skull. Waited 4 hrs before
getting help and daughter died. Evidence only showed possibility of survival w/early treatment.
Issue: Can D be convicted for causing her daughter’s death?
Holding: No D cannot be convicted because the state failed to establish but for cause beyond a
reasonable doubt, as there was a chance medical help would not have saved her.

E. Foreseeability
Causation requires a sufficiently direct cause and an ultimate harm that is foreseeability
Contributing causes don’t defeat liability.
The specific cause must be foreseeable.
i. People v. Arzon (Supreme Court NY,1978)
Facts: Arzon sets fire to a building. Firemen rush in. 2nd arsonist sets a fire and a fireman dies.
Issue: Whether Arzon can be found the cause of the fireman’s death and thus liability for it.
Holding: Causation requires a sufficiently direct cause and an ultimate harm that is foreseeable.
Arzon is liable bc his act was a substantial cause (placed fireman in more danger) and the harm
was foreseen as it was reasonably related to D’s acts. Contributing causes don’t defeat liability.

ii. People v. Werner-Lambert Co (NY 1980)

Facts: Ppl died in a factory explosion. Factory used 2 potentially explosive substances and had
 42

been warned of an explosion hazard. No proof of what triggered the explosion.

Issue: Whether company could be indicted for criminally negligent homicide on grounds that
their actions were sufficiently direct in causing a foreseeable risk.
Holding: Although Ds were aware of the general risk, there is no evidence to establish that Ds
created circumstances that foreseeably caused the immediate triggering cause of the explosion.

iii. People v. Deitsch

Facts: Warehouse fire killed an employee trapped on the 6th floor. Bales of material blocked the
fire escape but the cause of fire was never determined. Ds knew of these conditions.
Issue: Whether Ds actions foreseeably caused the fire, making them liable for manslaughter.
Holding: Yes Ds created unsafe conditions in the warehouse that lead to the employees death
through a foreseeable intervening cause.

F. Vulnerability of the Victim

Like in torts, you take your victim as you find them: thin skull rule. Foreseeability is downplayed here.
i. People v. Stamp
Victim had a heart attack during robbery, D was held liable for felony-murder.

ii. State v. Lane

D punched chronic alcoholic in the head. The victim was especially susceptible to such an injury
and died 2 days later D was convicted of misdemeanor/manslaughter.

G. Foreseeability of Medical Malpractice

The foreseeability issue comes into play during medical malpractice – when D injures a person but they
then die from unexpected malpractice. Can D be held liable as the cause?
i. Common Law:
o If the wound was a mortal wound and the person died w/in a year and a day, D was liable
o If it was a minor wound, D was liable if they died from lack of medical treatment but not if
there was medical maltreatment (M Hale, Please of the Crown)
o If the original wound is still a substantial cause, then death is the result of the wound. Only if
it is just the setting in which another cause operates is it not the result (Regina v. Cheshire)

ii. Current Practice

Now courts are very unsympathetic to claims that D shouldn’t be held responsible even if
significant medical error contributes to the death.
o Cases where Ds tend to not be found liable re when Drs find something extra that is wrong
after V was brought in and malpractice in treating the extra problem causes D’s death.
o Medical malpractice must be the sole cause of death to be a defense as intervening factor.

a. State v. Shabazz
Holding: Gross negligence and medical malpractice is mitigating only if it is sole cause.

b. United States v. Mane

Holding: Allowed evidence that an officer failed to move the victim of a car crash that
resulted from D’s reckless driving to be considered by the jury in determining proximate
cause. Jury may find no proximate cause but judge said was not an unlikely risk.

II. SUBSEQUENT HUMAN ACTIONS

Causation is considered interrupted by the voluntary acts of people that intervene and disrupt proximate cause.
• Exceptions: actions that are involuntary in the traditional sense and acts that are constrained by
 43

compulsion of duty, duress, or momentary emergency precipitated by the prior actor

• D is not liable for culpable conduct (either intentional or highly reckless) by 3rd parties.

A. Subsequent Human Actions Intended to Produce the Result

These generally act as intervening causes. D can’t be held causally responsible.

i. People v. Campbell (MI Court of Appeals 1983)

Facts: D encouraged very drunk V to kill himself and gave him a gun. V killed himself.
Issue: Can he be prosecuted for murder?
Holding: No. As long as D did not participate in the final act, it is not murder.

ii. People v. Kevorkian (MI Supreme Court 1994)

Holding: endorses the result in Campbell: not liabile as long as D no participation in final result.
• A footnote suggests that when subsequent actor/victim is incapacitated the D may be liable.
o A D who recklessly or negligently makes means for suicide available to a person who
is intoxicated and despondent or agitated can sometimes be convicted of a lesser
degree of homicide, such as involuntary manslaughter

iii. Current Law

One who successfully urges or assists another to commit suicide is not guilty of murder, so long
as they were mentally responsible and not forced, deceived, or otherwise subject to pressure
that render the act partly involuntary.
• MPC 210.5(1) criminal homicide whn someone causes another to commit suicide by force,
duress or deception
• MPC 210.5(2) assisting suicide is a separate felony offense (punishable as manslaughter)
• Many other states have adopted assisting suicide statutes.
• NY §125.15 manslaughter when someone intentionally causes or aids another person to
commit suicide

B. Subsequent Victim Behavior

Whether D is liable for victim behavior hinges on foreseeability
i. Eagan
Facts: D shot V and she became so injured that she decides to discontinue life support.
Issue: Whether D be prosecuted for murder.
Holding: (Didn’t not end up charging murder in this case) But most cases suggest that D can be
charged bc it is foreseeable that V whose quality of life is so reduced would choose to die.

ii. Regina v. Blaue

Facts: Victim declines treatment bc she is a Jehovah’s witness.
Holding: Most courts would find the D responsible by treating this as a thin skull case

iii. Cervantes
Facts: Cervantes, a member of a gang, shot a member of a different gang. A group of the rival
gang killed a member of Cervantes gang.
Issue: Can Cervantes be held causally responsible for the murder of his fellow gang member?
Holding: D is liable. It was totally foreseeable that to avenge the shooting the gang would be
expected to respond with equal or greater force against D or another member of his gang.

C. Subsequent Acts of Third parties

i. Bailey v. Commonwelath
 44

D. Subsequent actions that Recklessly Risk the Result

D is considered the cause of a result when a 3rd party or V engages in intentional or reckless action that
causes the result out of insistence of D or a panicked response to the D’s illegal behavior.

i. Commonwelath v. Root
Facts: D accepted deceased’s challenge to drag race. Deceased drove recklessly and died.
Issue: Can D be held responsible for death because he participated in the drag race?
Holding: No. D was reckless but his reckless conduct wasn’t a sufficiently direct cause of death
bc deceased was a voluntary and reckless participant.

ii. People v. Kern

Facts: Deceased ran across a highway to get away from a deadly mob. He is hit by car, dies.
Holding: Ds were held to be the cause of death. It doesn’t matter whether it was rational to
cross the street because he was acting under panicked response to D’s illegal behavior (i.e.
kidnapped V tries to jump out of a car).

iii. People v. Matos:

Facts: Police officer is chasing fleeing D across rooftops, trips and falls down airshaft and dies.
Holding: D is liable for officer’s death stemming from his felony bc it was a foreseeable result.

iv. State v. McFadden

Facts: Drag race btwn D and V; V drove recklessly and lost control. V and a passenger in a 3rd
car were killed.
Issue: Is D liable for involuntary manslaughter of V?
Holding: The court declined to adopt the Root strict causal standard and instead said that the
causal standard for civil prox. cause was met by considering foreseeability and recklessness

v. Commonwealth v. Atencio
Facts: Ds and deceased played a game or Russian roulette w/each person shooting
themselves in the head. The deceased pulled the trigger and died.
Issue: Whether Ds could be held causally responsible for the manslaughter of the deceased
Holding: Ds’ participation/mutual encouragement caused V’s death. Outcome was foreseeable
if not inevitable. Distinguished from drag racing, where death depends on participants’ skill.

vi. The Drug Provider

Death by overdose when D provides drugs? Courts increasingly say provider of the drug can be
held responsible for the death of those who abuse it even though they are acting voluntarily
• Critics of the model penal code have suggested that the intervening party must be
considered in terms whether the nature of a volitional act broke the causal chain.

ATTEMPT
I. PENALTY
A. English Common Law
No link between the crime of criminal attempt and the seriousness of the attempted crime.
 45

All and any attempts were a misdemeanor.

B. Modern Common Law

Punishment is determined in relation to the crime that the actor attempted.
Penalty ranges for attempt typically shift down from the penalties of the completed crime.

C. Model Penal Code 5.01

Penalty is the same for attempt as for the completed crime.
• Rationale: MPC seeks out wrongdoers and brings full force of law to incapacitate/rehabilitate.
Exception: in 1st degree felonies the penalties are graded down for attempts
• Rationale: High penalty for completed 1st degree felonies is to provide extra deterrence but D
has already ignored this. There is no extra benefit for long jail time.
o Edgar suggests this recognizes that juries don’t like giving long sentences for attempt

II. MENS REA

A. Common Law
D must have the purpose or specific intent to do the harm.
i. Smallwood v. State
Facts: Rapist who is HIV+ is charged with assault with attempt to murder.
Held: State failed to show sufficient probability of death from HIV which would allow
inference that D acted w/intent to kill when he raped w/HIV.

B. Model Penal Code 5.01

Purpose is required for conduct and usually for results.

i. Attendant Prohibited Result 5.01(1)(b)

When D acts w/the purpose of causing result or with the belief that his conduct will cause
the result without further conduct on his part.
• i.e. D plants bomb on plane to destroy it, w/knowledge/belief pilot will also die.

ii. Attendant Circumstances that are Material Elements

D must have the same kind of mens rea re: attendant circumstances otherwise required by
the substantive crime.
a. Commonwealth v. Dunne (MA 1985)
Facts: D convicted of assault w/intent to commit statutory rape; thought V was of age
Holding: It is immaterial that D reasonably believed V was not underage. Attempted
statutory rape has the same strict liability for V’s age as the completed offense.

iii. Dangerous Behavior Lacking Purpose: Reckless Endangerment

MPC creates a new crime of reckless endangerment to reach dangerous behavior where
D does not have the purpose of causing the result, which is a misdemeanor.

C. Attempted Felony-Murder?
Most states do not recognize attempted felony murder

D. Attempted Manslaughter?
No attempted involuntary manslaughter: although you may have purpose to engage in reckless
behavior you don’t have purpose to reckless bring about that result.
Most states recognize attempted voluntary manslaughter (provocation, EED)
 46

III. ACTUS REUS

Issue of where attempt liability attaches.
A. Traditional Common Law
Eagleton defined attempt as taking the last step before committing the crime
King v. Barker held that first step is not nec. sufficient and final step is not nec. required.
• Goal was to be sure about D’s purpose (no chance he’d repent) but it exposes victims to
danger

B. Equivocality Test
Originated from common law but influences a number of states (though not in its complete form).
Focuses on how clearly his acts bespeak his intent.
• Purpose must be manifested by overt acts, which are evidence of a criminal purpose.
• Words (confession after the fact) or ambiguous acts are insufficient.
McQuirter v. State: would be insufficient under this test. D confessed to intent to rape but his acts
were equivocal. Was convicted bc he was black in the south, accused of intent to rape white lady.

C. Dangerous Proximity Test: Adopted by NY

D must arrive at the scene of the planned crime and engage in conduct tending to affect it.
i. People v. Rizzo
Facts: Ds were looking for someone who they planned to rob. The police followed and
arrested D when arrived where he thought target was, though the person wasn’t there.
Issue: Whether D’s actions exceeded preparation and amounted to attempt.
Holding: NO. D planned to a crime but opportunity for attempt only would arise when he
found the target.
An act is attempt only if it (a) tends to the commission of the crime and (b) is so near to its
accomplishment that in all reasonable probability the crime would have been committed,
but for timely interference.

D. Model Penal Code: Substantial Step

Instead of looking at how much remains to be done, the MPC looks at whether the Ds have made a
substantial step towards committing the crime.
Requires: (1) An act that is a substantial step designed to accomplish a crime.
(2) The conduct must strongly corroborate criminal purpose
5.01(2): Lists conduct that must go to the jury as evidence of a substantial step. Other conduct must
be strongly corrborative of intent.
Rationale: Aims to avoid liability for minor preparatory acts while also permitting apprehension and
attempt liability at an earlier stage than the common law.
Creates renunciation defense to cut off liability for preparation that is then abandoned.

E. Jurisdictions Following MPC

F. Substantive Crimes of Preparation
Seeks to identify and criminalize preparatory behavior that is a lead up to criminal acts.
i. Burglary: liability attached when D breaks and enters w/intent to commit felony inside
ii. Assault: attempt to commit battery
iii. Behavior Defined by Statute (i.e. possession of burglary tools, teaching to build bomb)
iv. Stalking: Adopted laws to get outside traditional requirement of proof to do future harm.
Must be specific to meet legality doctrine’s prohibition of vagueness.
a. CA statute: “credible threat” w/intent to place target in reasonable fear for safety
b. SD statute omits reasonableness standard. Prohibits knowing/willfull acts that
seriously alarm, annoy, harass target and serve no particular purpose.
 47

• Morales held that legitimate purpose standard didn’t give adequate

guidance on what conduct is w/o legitimate purpose
• Yet SD Court refused a prima facie challenge of the statute
IV. COMPLETED CRIME? NO

V. DEFENSES
A. Renunciation (MPC 5.01(4) and NY)
No defense of renunciation at common law but MPC and some states created this to allow D’s
repentance to be a defense even if he crossed its earlier line of attempt liability.
To act as a defense: renunciation must be voluntary and complete.
• Not voluntary if motivated by circumstances not present or apparent at the start of D’s conduct,
which increase the probability of detection/apprehension or makes the crime more difficult.
a. Rape Cases:
When victim talks D out of the crime, courts split over whether this is renunciation.
People v. McNeal held no bc it was unexpected resistance, increasing difficulty
Ross v. State: held yes.

B. Impossibility
i. Factual Impossibility – no defense
a. People v. Dlugash (NY Appeals, 1977)
Facts: D shot victim in head after 3rd party shot him in chest. D claimed to have
believed victim was dead. It wasn’t established whether he was alive.
Issue: Whether the fact that murder was factually impossible is a defense if D
believed that victim was alive when D shot him
Holding: If D would have committed a crime had circumstances been as D believed,
D is liable for attempt. Went to jury bc they could find D did believe victim was alive.

b. State v. Smith:
Facts: Prisoner spat in officer’s face, believing he could transmit HIV.
Holding: Guilty of attempted murder even though it was factually impossible.

c. When the actor’s behavior is extremely unlikely to produce criminal result

• MPC holds D guilty if intent is there, no matter how preposterous the belief is.
• MPC 5.05.2 is a discretionary clause, allowing the judge to throw out a conviction
if the belief is too preposterous.
• Most states have the first statute and only a few have the second.

ii. Legal Impossibility – very limited defense

D has a defense when he attempts to do something that he believes is a crime but that
hasn’t been made criminal - when there is no statute under which he can be charged.
• This shifts the focus from external factors to the actor’s mental frame to assess his
dangerousness and hence his liability for attempted criminal conduct.
• This falls outside the MPC’s elimination of the impossibility defense bc the governing
criminal law is not a circumstances and its existence or nonexistence isn’t either.
 48

COMPLICITY

I. PENALTY
A is liable for the same level of penalty as P.
Complicity is a derivative offense: when A encourages or assists with required culpability, A takes responsibility
for P’s criminal actus reus.
• Procedurally, CL differentiated accomplice conduct to limit punishment that would otherwise flow (death)

II. MENS REA

A. For Crimes of the Principal
i. Common Law and MPC
A must have the purposive intent to aid the P in affecting the crime the P plans
a. Hicks v. United States: D must have actually intended to encourage or aid P.
Equivocal words can’t be taken to infer intent to encourage. Some act must show intent.

ii. Mens Rea of Knowledge Not Sufficient

D is not an accomplice when he knowingly facilitates a crime but does not have the purpose that
it is committed (State v. Gladstone: marijuana referral).

a. MPC Draft: Rejected

Suggested that knowledge should be enough if it substantially facilitated the offense.
This draft was rejected. MPC retained the CL purpose requirement.

b. NY §115 Criminal Facilitation

Made a new misdemeanor to deal w/Ds who provide knowing assistance to a crime but
don’t have the purpose to facilitate it.
• No requirement of substantial facilitation. But it does require that it IN FACT aid.

c. Posner Suggests Different Mens Rea Depending on how Substantial Aid Is

D is liable if they give substantial aid, knowing it would facilitate crime.
D isn’t liable if they give less substantial aid, knowing but not intending it would aid.

d. Substantive Crimes of Facilitation

A way to get around the purpose requirement: creating crimes of facilitation that prohibit
confuct that facilitates a crime w/o requiring the actor to purposely aid the crime.
• Juvenile Gun Possession: Any person who intentionally, knowingly, recklessly
provides handgun to someone under 18 commits a crime
• Material Support to Terrorism: Any money or material assistance given to groups
on a federal list of terrorist organizations is criminal.
• Money Laundering: Anyone who facilitates someone to engage in large
transactions in cash, which the individual realizes was obtained illegally.

iii. Extending Mens Rea to Natural and Probable Consequences

Some jurisdictions hold A liable for all of P’s conduct, even if A did not purpose it and even if
that frustrates A’s goal. The one requirement is that Ps acts must the natural, probable, and
foreseeable results of the act A intended.
• A can only be liable for other foreseeable results if he is a purposing A for some crime.
a. People v. Luparello (California Appeals, 1987)
Facts: D wanted to locate his ex-gf and thought Martin had info. D enlisted friends to
 49

help. While trying to extract info, one of D’s friends shot Martin. D convicted of murder.
Issue: Whether murder by a coconspirator that D did not plan or intend can be the basis
of accomplice liability. Whether the D must intend the coconspirator’s deeds.
Holding: Accomplice liability is premised on the mens rea of intentionally encouraging or
aiding some crime. After this is established, liability extends to actual crimes committed,
which are natural, probable, and foreseeable consequences.

b. Roy v. United States (D.C. Appeals 1995)

Facts: Miller approached D to illegally buy a handgun. D referred him to Ross who took
him robbed him. D was convicted as an accomplice.
Issue: Whether D can be convicted for armed robbery, even if he didn’t intend it.
Holding: No, evidence was insufficient to show that the armed felony was the natural
and probable consequence of the illegal firearm purchase. Restricted to what may
happen “in the ordinary course of things” not what is conceivably possible.

c. State of the Law

The natural and probable consequences test used in Luparello is widely applied. (CA,
MI, DC) but it is controversial and others reject it. i.e. NC, MPC

d. Model Penal Code Rejects this Test

Conspiracy is not an independent basis for liability for these other crimes.
• MPC asks whether the criminal behavior of the principal, which goes beyond what
the accomplice intended, something that is fairly envisaged by the accomplice.
• Unclear if its much harder to show fairly envisaged instead of natural and probable.
• This has not been enacted anywhere

B. For Attendant Results

i. MPC 2.06(4)
When a particular result is an element of a crime, A is liable if he has culpability with respect to
that result that is required in the commission of the actual offense.

ii. Common Law

Also requires same mens rea for results that are required by the substantive crime.
a. State v. McVay (Supreme Court of Rhode Island, 1926)
Facts: D hired captain and engineer and instructed them to use a defective boiler in a
way that was risked explosion. All of them knew risk. It explodes and a few ppl die.
Issue: Does D have the required mens rea of purpose to be charged as accomplice to
involuntary manslaughter? Can there be purpose that unintentional behavior occurred?
Holding: Involuntary manslaughter can arise from voluntary acts that were negligent or
reckless regarding a risk of death. D was purposive re: reckless conduct, so a jury could
find required mens rea if he recklessly disregarded or was grossly negligent as to risk.

iii. Avoiding Causation Requirements through Recklessness/Negligence As to Result

a. State v. Abbott
Facts: Abbott accidentally kills someone in a drag race. Moon was opponent in the race.
Issue: Can Moon’s participation in the race amount to complicity in negligent homicide
by encouraging the dangerous behavior?
Holding: Yes, Moon purposely participated in the dangerous and unlawful activity and
aided/encouraged his behavior. Even neither intended the death, they both were
complicit in the behavior that negligently caused it.
 50

b. People v. Russel (NY Appeals, 1998)

Facts: Ds had gun battle. No one knew whose bullet caused the death of an 3rd party. All
Ds were convicted as accomplices of 2nd degree, depraved indifference murder.
Issue: Whether shooting at each other is accurately characterized as sponsoring the
gunfight, making Ds each others’ accomplices in depraved indifference murder.
Holding: The fight wouldn’t happen w/o everyone’s participation, so they are
encouraging the criminal conduct of the gun battle and are liable as accomplices.

C. For Attendant Circumstances

The code is intentionally silent as to whether the purpose requirement for commission of the offense
extends to attendant circumstances. The code leaves this to be resolved by courts, case by case.
• Courts go every way on this but its so infrequent that no doctrinal answer has formed.

III. ACTUS REUS

A. Common Law
There are two possible prongs under which the actus reus for complicity can fall:
• Assist, or Solicit, Encourage, Command
• No Causation Requirement: the assistance need not be the “but for” cause

B. Model Penal Code 2.06(3)(a)

A person is an accomplice… if he
• solicits such person to commit it; or
• aids or agrees or attempts to aid such other person in planning or committing it; or
o Encouragement is included under this prong
• having legal duty to prevent the commission of the offense, fails to make proper effort to do so.

C. Encourages
Liability for encouragement is very broad. When actor has mens rea, it doesn’t take much to show.
i. Wilcox v. Jeffery
Facts: D buys a ticket and goes to Hawkins’ jazz concert. D claps loudly and is convicted as an
accomplice Hawkins’ crime of playing in England w/o license.
Issue: Whether D’s conduct amounts to encouragement that makes him liable as accomplice.
Holding: D is liable, though this is distinguished from where a D only attended boxing match.

D. Materiality of Aid or Encouragement

Once A did assist P, the degree of aid or influence is immaterial. Causation is irrelevant
i. State ex rel Attorney General v. Tally Judge (Ala 1894)
Facts: Ross slept with Talley’s sister in law. His brothers ride after Ross to kill him. Talley
knows this and discovers that someone sent a telegram to warn Ross. Talley sends a msg to
the operator telling him not to deliver the warning. The brothers catch up w/ Ross and kill him.
Issue: Whether Talley’s conduct amounted to aid that made him an accomplice to his brothers.
Holding: Talley is an accomplice. Complicity doesn’t require proof of causation.
• Either the brothers must know that Talley will help them (encouragement)
• Or his conduct must have possibly influenced the events – no but for cause needed (aid)

E. Omission When There is Duty to Act

Under CL and the MPC, D becomes an accomplice by failing to act when D had a legal duty to do so.
i. People v. Stanciel (Il, 1992)
Facts: D’s boyfriend beat D’s child to death and D failed to protect, which was her duty as mom.
 51

Issue: Can D be held as an accomplice to her child’s murder for failing to protect her?
Holding: Yes, D is liable. Courts are reluctant to allow defense that D would be endangered.

ii. Mens Rea for Omission?

Under MPC D must have the purpose that the P commit the crime to be held as an accomplice.
• Sleeping watchman isn’t an accomplice while a bribed watchman is bc he intends the crime

1. C.G. v. State (Ala 2002)

Facts: D was charged as an accomplice to the sexual abuse of her child by the father. D
tried to teach her child a positive attitude about the abuse.
Issue: Whether D’s had a purposive mens rea required to hold her as an accomplice.
Holding: Yes, the court compared her to bribed watchman who neglected her duty for
gain, which in this case was the continued affection of her husband.

F. Innocent Agent Doctrine MPC 2.06(2)9a):

A person is the principal in the first degree if, with the mens rea required for the commission of the
offense, he uses a non-human agent or a non-culpable human agent to commit the crime.
• A person is an innocent agent if they do not have the required degree of culpability or if they are
excused because of incapacity, age, insanity, duress, etc
Limits of the Innocent Agent Doctrine

A. Assisting Suicide
It is not a crime to commit suicide, so D cannot be charged with complicity in assisting suicide. However
this is largely an academic issue because most states enacted criminal assisting suicide statutes.

B. Limits of the Innocent Agent Doctrine

i. Crime can only be Committed by Designated Class of People
If a statute prohibits an officer or employee of a bank from entering false records, then one
who is not an officer or an employee cannot commit the offense.
• If they encourage or aid an officer or employee, they are an accomplice
• However, if they trick the officer or employee the absence of a guilty principal
precludes accomplice liability. The innocent agent doctrine cannot make this act relate
back to the accomplice because they cannot violate the statute.
• Federal Statutes have interpreted the fed aiding and abetting statute to mean one is
criminally liable when they trick an innocent agent even though the D does not have
the capacity to violate the crime.

ii. Culpable but unconvictable principal

When the principal would be guilty except for a policy-based defense, the accomplice does
not benefit from this defense, they are inapplicable to him.
• i.e. D conpired and aided another in espionage but the latter couldn’t be convicted bc
of diplomatic immunity

iii. Acquitted principal

Even if the principal is acquitted, the accomplice may be tried again (Supreme Court Affirmed
and MPC is in agreement 2.06(7))

iv. Defenses limited to the Accomplice When Victim

MPC 2.06(6)(a),(b) contains a provision that a person is not an accomplice if he is the victim of
that offense or if the offense is so defined that his conduct is inevitably incident to its
 52

commission.

IV. COMPLETED CRIME?

Under both common law and model penal code, if the principal makes an attempt and fails A is liable.
But CL and MPC respond differently to aid that (a) fails to reach P or (b) is irrelevant bc P makes no attempt:

A. Common Law
D is not guilty as an accomplice unless the conduct (aid/encouragement) in fact assists P
• No liability if D performs an act to assist P but conduct is ineffectual/doesn’t reach him
• No liability of D is at the scene to aid P without prior agreement and the aid is never needed
• No liability if D encourages P but P fails to hear

B. Model Penal Code

iii. Model Penal Code §2.06(3)(a)(ii): A Is Liable When Aid Isn’t Received/Doesn’t Help
If the principal actually commits or attempts a crime but A’s aid is not received by P, A is still
liable as an accomplice because he “aids or agree or attempts to aid such other person”

iv. Model Penal Code §5.01(3): A Is Liable For Attempt When P Takes No Action
“A person who engages in conduct designed to aid another to commit a crime, which would
establish his complicity under Section 2.06 had the crime been committed, is guilty of an
attempt to commit the crime, even if the crime is not committed or attempted” by P
• MPC seeks to impose restraint/punishment on a person who is dangerous.
• It punishes an attempted aider/abettor with the same punishment as the actual crime.
• Most states do not have this attempted aid/abet rule. MPC took issue w/fortuitous nature
of attempt liability relying up P’s actions.

v. Attempted solicitation?
Edgar says the code did not mean for a person to be held as an accomplice for unreceived
solicitation. 5.01(3) applies to efforts to aid but not to solicitation.

V. DEFENSES
A. Insufficient Actus Reus Because Crime is Justified
i. State v. Hayes (Supreme Court of Missouri, 1891)
Facts: Hayes assists Hill (who is trying to catch him and so doesn’t have mens rea), who climbs
into grocery store and steals bacon.
Issue: Is Hayes liable for assisting a burglary when Hill’s conduct wasn’t a criminal actus reus?
Holding: No, an actual actus reus must occur for someone to be held liable. Although the
accomplice’s mens rea can stand in for the principal, this is not possible with actus reus.

ii. Vaden v. State (Alaska, 1989)

Facts: D pilots a plane so undercover officer can shoot foxes illegally. Convicted as accomplice.
Issue: Whether the officer was justified and thus there was no actus reus for which D can be
convicted as an accomplice.
Holding: The officer had no authority to shoot foxes so it was not justified and he committed a
crime. Even if he was justified, the accomplice would still be responsible because the actus reus
of the dead animals occurred; that the principal had a defense wouldn’t mitigate this fact.
 53

B. Defense of Principal Doesn’t Pass to Accomplice

i. People v. McCoy
Facts: Principal who killed has some defense, which brings it down to manslaughter.
Issue: Whether this defense is transferred to the accomplice.
Holding No, this doesn’t matter for A because the actus reus of the killing occurred.

C. Mistake of Law or Mistake of Fact

These defenses work exactly the same way for the accomplice as for the principal.

i. Mistake of Law
If the principal would get off, were he mistaken about the legality of his conduct, then the
accessory has the same defense. However if the nature of the prohibition were such that
mistake of law is no defense, this extends to the accessory as well.
• Except strict liability: no accomplice liability when principal is liable w/o regard to
fault

ii. Mistake of Fact

If a mistake of fact defense is available to the principal then it is also available to the accessory.
 54

JUSTIFICATION

I. Protection of Life and Person

1. Standard of Judgment
A. Common Law
i. United States v. Peterson
The law of self defense is the law of necessity. To use deadly force in self defense, there must
have been a threat, actual or apparent, of deadly force
• Proportionality doctrine: deadly force is only appropriate to respond to deadly force.
• The law makes allowances for D’s uncertainty about what the threatener will do.
o A D has a defense if he had a reasonable belief, in light of circumstances, that
he was in imminent peril of death or serious bodily harm and his response was
necessary.
• The threat must have been unlawful and immediate.

B. NY Penal Code
NY code permits use of deadly physical force when D reasonably believes it to be necessary to
defend himself or another person from what he reasonably believes to be use or imminent use of
deadly physical force or a kidnapping, forcible rape or sodomy, or robbery.
o If the self-defense claim fails, there is no defense and D is liable for murder/attempted murder.

i. People v. Goetz
Facts: 4 youths asked D for $5. D knew they weren’t armed, but he feared, based on past
experience, threat of imminent force causing serious bodily injury and robbery. D shot them.
Issue: Whether the grand jury prosecutor sated the appropriate NY test for permitted use of
deadly force by saying it was whether D’s beliefs and reactions were subjectively reasonable.
Holding: NY legislature based their statute on the MPC but changed crucial aspects to require
an objectively reasonable belief in the harm and to give a complete defense if belief was
reasonable or not at all if belief was reckless, negligent, etc (as opposed to MPCs gradated
defense)
• Objective reasonableness takes circumstances/situation into account, including relevant
knowledge about the threatening people, their physical attributes, and prior experience that
provides a reasonable basis for a belief that the person’s intention was to harm or rob.

ii. Specifying the Circumstances Actor’s Situation Under an Objective Standard

Circumstances pertain to the objective facts of that instance – can this include things like race?
o The defense would have nothing to gain from claiming black men are more likely to rob
and kill. Most judges would not allow racial stereotyping in the courtroom.
How far back and what can the actor’s situation include?
 55

a. People v. Romero (CA Appeals 1999)

Facts: D stabbed and killed a person who endangered his brother
Issue: whether he could introduce expert testimony about honor, paternalism, and street
fighters in Hispanic culture to claim that he believed he was imminent danger of great
bodily harm and that this was objectively reasonable.
Holding: No, such evidence was irrelevant to both claims.

C. Model Penal Code 3.04(1) use of force is justified when subjective belief that it is immediately
necessary to defend against unlawful force by another person on the present occasion.
3.04(2)(b) There is a justification for use of deadly force when D subjectively believes that deadly force
is immediately necessary to defend against deadly force, seriously bodily harm, kidnapping or sexual
intercourse compelled by force or threat

D. Grading Problem
i. Common Law/ NY
If reasonableness is required, is there a defense for D with an honest but unreasonable belief in
the need to use lethal force?
• Under the prevailing objective test, this person killed intentionally and there is no defense of
self defense. She would be guilty of murder, just like D who kills for revenge/gain.
• However, several states avoid this result through various doctrines of mitigation:
a. Imperfect self defense: unreasonably use of deadly force is voluntary manslaughter
 Theory that there’s no malice. Lesser culpability is similar to passion
crimes
b. Involuntary Manslaughter: this is an even less common classification
 This is odd because theory is that the actor’s culpability is closest to that
of a person whose criminal negligence causes an unintentional death

ii. Model Penal Code:

3.04 Defense when D subjectively believes deadly force is necessary to defend against deadly
force
3.09 When the person is reckless or negligent in forming this belief, defense is not
applicable to charges of homicide in which recklessness or negligence suffices to
establish culpability.
• Someone who kills w/honest but unreasonable belief is liable for negligent
homicide
• Someone who kills with honest but reckless belief (substantial disregard of risk
that their belief is incorrect) is liable for manslaughter
• There is a tension here, for how can you form a belief recklessly. Negligence is
easier
• Rationale: we need to recognize that people don’t act w/calm reflection when face with
force

E. Legislative Question: Enumerated Crimes Against Which Deadly Force is Always Permitted

i. NY has made it permissible to use deadly force in the face of a robbery (larceny by force)
even when the force in the robbery is not deadly force.

ii. MPC 3.04(2)(b) only allows use of deadly force to defend kidnapping or forcible rape
 56

iii. MPC 3.06(d)(ii) allows deadly force robbery only when the person against whom it is used:
 has employed deadly force against or in the presence of the actor
 or when the use of force other than deadly force to defend against the crime would
expose the actor or another in his presence to substantial danger of serious bodily harm.

2. Imminence Requirement
A. Common Law
Deadly force can only be used in response to imminent threat

i. State v. Norman (NC Supreme Court, 1989)

Facts: D was horribly abused by her husband. The day before she killed V, she reached out to
many state officials but her husband repeatedly prevented this. She shot him while he was
sleeping. The gun didn’t fire, she fixed it. When he was still moving she fired again.
Issue: Whether D can claim defense of perfect self defense; whether evidence shows D
reasonably believed it was necessary to kill V to avoid imminent death or great bodily harm
Holding: A reasonable belief requires that the circumstances as they appeared to D would
create a belief of necessity to protect against deadly force in the mind of a person of ordinary
firmness.
• Only the utmost real or apparent necessity brought about by the V will justify homicide.
• V was asleep and D had time and opportunity to escape  not imminent.
o Her testimony showed her belief that death was inevitable, not imminent
• Also, abuse never rose to deadly force so responding with such would be unjustified.
o In the face of sustained physical violence that isn’t deadly, victim must just take it
Dissent: The issue wasn’t whether threat was in fact imminent but whether D’s belief of threat,
given circumstances as she saw them, was reasonable in the mind of person of ordinary
firmness.
• D never felt released from impending serious harm, there was no let up of tension or fear.
For battered women, escape seems impossible. There are no windows of momentary
safety

ii. Commonwealth v. Sands

Facts: D endured many years of abuse. On the day she killed him, her husband threatened to
kill her and beat her severely. She later shot him while he was watching TV.
Holding: D convicted. Though D reasonably believed that she was in danger of serious bodily
harm or death, evidence fails to reveal an imminent danger at the time of the shooting.

iii. Nonconfrontational self-defense

• Courts generally unwilling to convict when a battered woman kills her abuser in his
sleep.
• Some flexibility is starting to emerge:
Robinson v. State (SC): when escape seems impossible and torture endless, the belief that
only the abuser’s death will provide relief may be reasonable in the mind of ppl of ordinary
firmness.

iv. Contract Killing

When a wife hires someone to kill her husband, no judge has permitted a defense instruction
because the law can’t condone this and this shows that the threat probably wasn’t imminent.

B. MPC 3.04(1)/(2)(b) Relaxes Requirement to: Immediately Necessary on Present Occasion

 57

Sufficient if D reasonably believed that the use of defensive force was immediately necessary “on the
present occasion.”
• This stretches out the chance of threat to a longer time period but still confined to “occasion”

C. Defense of Another
MPC 3.05: 3rd parties have the permission to defend someone with deadly force when the person they
are protecting would have the right to use deadly force to defend themselves.
• It is obviously much harder for a 3rd party to understand the circumstances of B’s quarrel with C. So
a reasonable person uses more caution in deciding when it is appropriate to intervene.
• Thus the kinds of facts that make it reasonable are much more demanding than when the individual
is protecting himself.

3. Limits on the Use of Deadly Force

Recent tendency has been to confine use of deadly force very narrowly.

A. Motive
Under CL and MPC, D must have actual belief that self-defense was necessary for a self-defense
claim.
• If you kill w/o reasonable belief of imminent threat and it turns out there was a threat, no defense

B. MPC: No Mistake of Law Defense

3.09(1) no justification if D was mistaken about the law of defense (i.e. about no duty to retreat)

C. Risk of Injury to Others

i. NY and PA take the view that if you are acting properly to protect yourself, by definition you
cannot be reckless with respect to third parties.

a. People v. Adams (Il Appeals, 1972)

Facts: D shot and killed someone threatening his life and one of the bullets passed through V’s
body and killed a 3rd party. D was convicted of manslaughter of that woman.
Holding: Reversed. If the circumstances excuse killing in self-defense, D also has a defense if,
in attempting to defend himself, he unintentionally kills or injures a third person

b. Commonwealth v. Fowlin (PA, 1998)

Facts: D was assaulted in a crowded club. His attackers sprayed pepper spray and drew a gun.
He couldn’t see but shot 7 times, killing one assailant, injuring another, and injuring a 3rd party.
Issue: Whether D liable for assault or reckless endangerment for shooting a bystander when he
acted in self-defense.
Holding: No, if D meets self-defense requirements he can’t be deemed reckless, regardless of
the extent to which he endangers innocent bystanders.
Dissent: Whether D acted recklessly towards the bystanders is a matter for the jury to
determine under all the circumstances. The majority inappropriately allows D to respond in any
manner and with whatever amount of force no matter who he injures so long as he is acts in
self-defense.

ii. Model Penal Code 3.09(3): Takes up the dissent in Fowlin

When D is justified in using self-defense he recklessly or negligently injures or creates risk to 3rd
parties, the defense does not apply for a prosecution for recklessness or negligence twd those
ppl
o To get someone on recklessness you would have to show disregard of substantial and
 58

unjustifiable risk. The question arises of whether it is really unjustifiable in face of big threat
o Getting someone on negligence would be strange (why?)

4. Exceptions to the Right of Self Defense

A. The Duty to Retreat

i. Common Law
• English common law imposed a strict duty to retreat, a person could use deadly force in
self-defense only after exhausting every change to flee.
• American courts began rejecting the English doctrine as unsuited to American values.
o Many states on the east coast retained a retreat requirement
o By the early 20th century most states adopted the “true man” or no-retreat rule

ii. Current Controversies

This requirement is in flux, some courts have been reinstituting the retreat requirement while
legislatures in the same states have been repealing it.

iii. Model Penal Code 3.04(2)(b)

Institutes a duty to retreat when actor is faced with deadly force and knows he can avoid
necessity of using deadly force w/complete safety by retreating or surrendering possession of a
thing

iv. NY Code
Duty to retreat if attacked outside home w/deadly force and you know you can safely escape
• No duty to retreat when D as threatened w/various crimes: sex crimes, robbery, etc.
o Strange rule bc it makes retreat necessary when only violence is at issue but allows
D to stand and fight when threatened w/certain crimes, even if no use of deadly force

v. The “Castle” Exception

A universal exception to the retreat rule is that you don’t have to retreat from your home.
• MPC also allows exception for rule of retreat in place of employment unless the person who
is attacking also has a right to be there.
• The duty to retreat exception also usually applied when the homeowner is attacked by a
guest
• What about when the attacker is a co-occupant?
o MPC makes exception to the duty to retreat and so do most jurisdictions.
o Some other jurisdictions require the homeowner to flee if possible

B. Aggressors: The problem of the escalating Fight

i. Common Law and NY:

The person who is the aggressor loses the right of self-defense.
a. A punches B at a bar. A loses right of self defense. He forfeited it by his aggression.
b. A punches B, who pulls a gun and shoots (this is assault bc to use deadly force in response
to non-deadly force). A still has no right to self-defense, even if B’s response isn’t
proportional.
o In some states there is a doctrine of imperfect self-defense which allows a
manslaughter charge instead of murder.
c. A punches B, who pulls a gun. Then A retreats and communicates to B that the fight is over.
 59

By retreat and communicated withdrawl, A revives right to self defense and can use deadly
force to defend against deadly force.

a. United States v. Peterson (DC 1973)

Facts: Ppl come to steal D’s windshield wipers. D tells them to stop. He goes inside and
gets gun. V grabs weapon, D says “advance and I’ll shoot,” V advances and D kills him.
Issue: Does D have the right to use deadly force?
Holding: The court finds him an aggressor because V was about to leave his property
and he comes back out of his house and says “halt,” threatening him. As aggressor he
loses defense.

b. Allen v. State
Facts: Roommates were in a fight. Lethers hit Allen and then drove away. Allen followed
Holding: Person whose provocative behavior initiates a confrontation, even with no
intention of killing the other peron loses the right of self-defense

c. What kinds of fault suffice to forfeit self-defense privilege?

• Some courts hold that D who provokes deadly force by crime can’t respond in
kind
• More recent approaches tend to reject this approach
• Others take the free from fault requirement even further: any crime causally
related to the attack will forfeit self-defense even when that crime does not provoke
the victim’s conduct.

ii. MPC 3.04:

Privilege to use force only when someone uses unlawful force in attacking you.
• If the force is lawful, you have no privilege to use self-defense.
• If mistaken in thinking force is unlawful, no privilege b/c 3.09 takes away legal mistake.

a. A hits V and V responds w/deadly force. V’s use of disproportionate force is illegal and at this
point A is permitted to use self-defense to protect himself.
• A is still liable for the original crime of assault but A is justified in using deadly force in
response to save his own life bc V was acting illegally.

b. 3.04(b)(i) If D provoked with the purpose of causing death or serious bodily harm, D loses
the right to self defense in an escalating fight

iii. Comparing Merits of Common Law to MPC 3.04:

CL a bit arbitrary bc it requires people to run and risk huge chance of death even though most
ppl generally won’t do this.
• Does it make sense to force duties on people when they will never really follow it?
• Benefits of Common law is that it draws a line
MPC has intellectual integrity, but it is practically very difficult to figure out who punched who
when, etc to ascertain when force becomes unlawful
• MPC here has not been widely influential because its highly complicated
• What makes it even more complicated is that the MPC makes conditional threat of deadly
force ≠ deadly force.
o How can someone know that the intent is only to threaten conditionally?
 60

II. Using Force in Arrest

Under what circumstances are people allowed to use force to make an arrest? Varies by jurisdiction

A. Common Law:
You can use ordinary force to arrest someone who commits a misdemeanor.
You are allowed to use deadly force to arrest someone who commits a felony.
• Early CL rules attached strict liability to an actor making an arrest; if you use deadly force but the
suspect was not actually committing a felony then you can be charged w/homicide or assault.
o A rule came about to allow excuse when you were reasonably mistaken about this
Rationale: When all felonies are punishable by death, using deadly force isn’t sucha big deal.

B. Durham v. State – Office Can Use Force in Self-Defense, No Duty To Retreat

Facts: D, a game warden, arrested Long who jumped tried to escape. D pursued and when Long
started beating him about the head with an oar, D shot him. He was convicted of assault and battery.
Issue: Whether the trial court’s instructions that appellant was not authorized to use force that would
endanger Long’s life to overcome his resistance of arrest for a misdemeanor were accurate.
Holding: The trial court’s instructions were not accurate. An officer is entitled to use deadly force
whenever he is faced with resistance by deadly force.

C. Tennesee v. Garner
Facts: Officers responded to a prowler call. V ran out of the house, unarmed. D Officer called “police,
halt,” suspect tried flee. D killed him. TN statutes allowed use of any means to arrest a suspect who
flees or forcibly resists. Appeals court found killing=seizure under the 4th A, which is constitutional only if
reasonable.
Issue: Whether killing an unarmed fleeing suspect is a reasonable seizure under the fourth A.
Holding: The TN statute allowing an officer arrest of fleeing suspect by any means necessary is not
constitutional. Deadly force may only be used when it is necessary to prevent escape and D has
probable cause to believe that the subject poses a threat of serious physical harm, either to D or to
others.

i. When does D have probable cause to that suspect poses a threat of serious physical harm?
• Belief of threat to oneself collapses into self-defense
• What about the belief of threat to others? Points to MPC which permits the inference when
the crime is a felony involving use of or threat of deadly force and there is a belief that the
person will cause a threat to others.
 This is both over-inclusive and under-inclusive.
o Not every crime w/deadly force will mean the actor will use deadly force on others.
o Non-felonies can involve deadly force and actors who will use it on others

D. NY Penal Law 35.30

An officer may use deadly force when:
• There is a felony or attempted felony involving imminent use of physical force against a person, or
kidnapping, arson, or escape.
• The officer reasonably believes his own personal safety is at risk

E. Model Penal Code 2.072(b)

Allows use of deadly force when:
the arrest is for a felony;
o and the person effecting the arrest is authorized to act as a peace officer or assisting one;
 61

o and the arrest is for a crime involving use or threat of deadly force;
o and there is substantial risk that the person to be arrested will cause death or serious bodily
harm if his apprehension is delayed

F. Private People
NY CODE: Private people may use deadly force to make arrests for very serious crimes BUT strict
liability is imposed (reversion back to the old common law) as to whether the person actually committed
a criminal offense.
MPC: No private citizens may use deadly force. The only exception is when they are directed by police.

III. Choce of the Lesser Evil – Justification Generally

A. People v. Unger
Facts: D was confined at IL State Penitentiary. An inmate threatened him with a knife to force sex. D
was then transferred to an honor farm where he was sexually assaulted by 3 inmates. Later he was
threatened w/death for having reported the assault. D claimed that he escaped to save his life and
planned to return once he found someone who could help him.
Issue: Whether it was error for the trial court to instruct the jury that it must disregard the reasons given
for D’s escape and to refuse to instruct jury on statutory defenses of compulsion and necessity.
Holding: D’s testimony is sufficient to raise the affirmative defense.
Conduct that would otherwise be an offense is justified by necessity when D was w/o blame in creating
a situation in which offense was necessary to avoid injury greater than what the offense would cause.
• The court basically decides to allow this to go to the jury if he can make this claim.

B. Commonwealth v. Leno
Facts: Ds were operating a needle exchange program to combat the spread of AIDS. MA prohibited
distribution of hypodermic needles without a prescription. Ds claimed the defense of necessity
Holding: Necessity was inappropriate bc they did not show that the danger was clear and imminent,
rather than debatable or speculative. The best course to prevent AIDS is still a matter of debate.

C. Commonwealth v. Hutchins
Facts: Grandmother grew pot for her son who had a fatal disease with terribly painful symptoms that
marijuana alleviated.
Holding: Judge denied offer of proof of the alleviation on grounds that it would not support a necessirty
defense. Alleviation of medical symptoms would not clearly and significantly outweigh potential harm to
the public. There will be a negative imapce on the enforcement of drug laws.

D. In State v. Rasmussen
Facts: D’s license was suspended. He was driving w/someone else and the car broke down in the bitter
cold. Friend left and he was able to start the car. Drove it to safety. Was prosecuted for strict liability
offense of driving while suspended.
Issue: Able to assert necessity offense when underlying crime requires no mens rea?
Holding: Yes if necessity offense makes the conduct not wrongful at all (justification) No if necessity
offense is an excuse.

E. Model Penal Code 3.02

(1)When the actor believes conduct to be necessary to avoid a harm or evil to himself or another, this
conduct is justifiable provided:
(a) That on balance the harm sought to be avoided is greater than that sought to be prevented
by the law defining the offense charged.
Edgar said this is a matter of law
 62

(b+c) The competing values have not been foreclosed by a deliberate legislative choice, when
some provision of the law deals explicitly with the specific situation or a legislative purpose to
exclude claimed justification otherwise appears.

F. New York Penal Law 35.05

Constrains necessity by requiring it is in response to imminent danger.

i. HYPO
Facts: prisoners took over the prison in order to show the unconstitutional nature of treatment
Issue: They claimed a right, under the NY general justification, to present evidence of necessity.
Holding The NY court held that there was no emergency that required the take over today as
opposed to another time.

G. United States v. Schoon

General necessity defense can’t be used to justify generating public attention to a cause. It is only
available when you can stop the particular harm by occurring through the action that you take