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Course: Criminal Law Fall 2005
School: University of Detroit
Year: 2005
Professor: Keenan
Course Outline provided by

Criminal Law Outline


  1. Introduction (CB 1-30) Purposes of Punishment

  2. Process of Crime Definition

    1. Principle of Legality 31-43

            1. Previously defined conduct – general rule --- Forbids retroactive crime definition.

              1. Desirability in principle of advance legislative specification of criminal conduct.

              2. Principle concerns the process rather than the content.

            2. Rationales for Legality Principle

              1. In order for deterrence to work, we must have stuff spelled out ahead of time.

              2. Commitment to representative government and Idea of social contract. We only gave up what we have to, not every freedom. Don’t want individual judges or people to make laws that are good for them, want representatives to make laws that are good for everyone.

              3. Judicial innovation could (in Beccaria’s view pg. 37) lead to arbitrariness and inconsistency.

              4. Today people wouldn’t say that crimes exist because people don’t know what the law is. Most criminals know their conduct is illegal but believe they won’t be caught. Therefore, the principle of legality is justified more as being essential to the ethical integrity of the criminal law.

              5. Principle of legality is a good check on police officers and prosecutors. “in a system that lodges the all-important initiating power in the hands of officials who operate, as they must, through informal and secret processes, there must be some devices to insure that the initiating decisions are, to the greatest extent possible, fair, evenhanded, and rational.”

            3. Rex v. Manley (1932 ENG): Δ was convicted of giving false comments to the police. The trial court held that the act “tended to a public mischief” and the appeals court affirmed, finding compelling evidence that there were “ingredients” of public mischief or prejudice to the community. Today viewed as bad law.

            4. Shaw v. Director of Public Prosecutions (1961): Δ convicted of common law misdemeanor of conspiracy to corrupt public morals (for publishing hooker directory). “There remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law. Contra bonos mores – against public morals.

            5. Knuller v. Director of Public Prosecutions (1972): Conviction for running classified ads by male homosexuals, relying on Shaw, despite an act by parliament decriminalizing homosexual acts.

    2. Vagueness 43-64

      1. A Constitutional Doctrine requiring that criminal statutes have at least minimally clear meaning.

      2. Papachristou v. City of Jacksonville, US 1972 - 52

        1. Facts: Two white women and two black men were arrested while driving under an ordinance banning “vagrants” R: Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even handed administration of the law is not possible.

        2. “Those generally implicated by the imprecise terms of the ordinance – poor people, non conformists, dissenters – may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts.

        3. “Encourages arbitrary and discriminatory enforcement” è “convenient tool for harsh and discriminatory enforcement.

        4. Over-Inclusive: allows police officers to decide when to enforce.

      3. Kolender v. Lawson, US, 1983 - 43

        1. F: Lawson arrested 15 times under Cal. Statute §647-e that requires persons who loiter or wander on the streets to provide a credible and reliable ID and to account for their presence when reqruented by a cop under circumstances that would justify a stop under Terry rule.

        2. H: §647-e is unconstitutionally vague b/c it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.

        3. R: Void for Vagueness doctrine: a penal statue must define the criminal offense with sufficient definiteness that 1) ordinary people can understand what conduct is prohibited and 2) in a manner that dn encourage arbitrary and discriminatory enforcement.

        4. Need to show how a suspect would satisfy the requirement to provide credible and reliable ID. è in end, suspect violates statues unless the officer is satisfied with the ID.è State fails to establish standards by which the officers may determine whether the suspect has complied with the ID requirement.

        5. Under fed constitutional law, courts can find something unconstit. usually only when there is a criminal outcome. è only way to 2 ways to challenge the law 1) violate the law. You challenge the law as a defense 2) facial challenge è rarely happens, so this is construed very narrowly. You usually aren’t allowed to challenge a law that is not directly affecting you. è usually has to be invalid in a respects. This case is a facial challenge!!!

      4. Chicago Gang Congregation Ordinance

        1. - in one year alone, 40,000 people were arrested. - Less notice than Kolander è in that case, perp. could get out of situation by showing identification. Here you have no way out until trial when you can give an affirmative defense. Struck down by Ill courts on vagueness grounds è definition of loiter is too broad. è It’s difficult to understand what is it to not have a purpose. Having a cigarette, going for a walk, etc...è also vagueness of disperseness element, what does it mean (one block, two) and for how long.

      5. Whats wrong with a vague statute?

        1. fails to give adequate notice of whats prohibited. Ie lack of fair warning.

        2. indefinite law invites arbitrary and discriminatory enforcement. The power to define a vague law is left to those who enforce it.

      6. CRTICISM:

        1. Most people don’t learn what the law is from a statute. This means that facial uncertainty of the statute can be overcome by judicial construction.

        2. A vague statute may invite arbitrary enforcement, but any law allows it.

          1. Police decide who to arrest and which laws to enforce. Prosecutors decide who to bring charges against and prosecutors may accept or reject guilty pleas and make or withhold recommendations of sentence.

      7. 3 points about SC and vagueness doctrine.

        1. Never been used to strike down a core crime such as rape, murder or theft. If the legislature is making a good faith attempt to deal with a real social problem, particularly where there is an identifiable victim to the crime, its unlikely to be held unconstitutionally vague.

        2. SC rarely if ever used the vagueness doctrine to prohibit legislature from accomplishing a legitimate law enforcement objective. Its ALWAYS relevant to vagueness issue whether its possible to draft a narrower statute that will still accomplish the same goal. And Law enforcement need is always a powerful arg. Against the vagueness of any statute.

        3. Law students overuse the vagueness doctrine. Its very limited. Classic situation is one where the crime defined by the legislature seems to be aimed at no particular evil, where the average citizen may well violate the law by engaging in perfectly innocuous conduct, where there is a large opportunity for law officers to pick and choose those they’d like to arrest and where there isn’t a serious law enforcement need for a statute drafted in the terms before the Court.

      8. Factors that influence the cts. Decision to tolerate vagueness

        1. infeasibility of greater precision

        2. social costs of not being able to regulate certain bx.

          1. Obscenity regulations dem. this, its impossible to really define obscene material, but it needs to be done so we tolerate vagueness.

        3. Political cost of not regulating certain bx.

          1. Public reactions, pressures on law enforcement.

          2. When there is lower cost of non-reg. this creates more discretionary powers particularly when the law that’s enforceable gets at minor and low danger conduct.

      9. How to analyze a statute for vagueness.

        1. Statutory language

        2. Are there any cases that further narrow the language

        3. Are the concerns the court has identified implicated

        4. Fourth does it promote arbitrary and discriminatory treatment

        5. Is a criminal/non-criminal law

        6. How harmful is the is the conduct being regulated

        7. What is the status of offenders

        8. What is the cost of regulation

        9. Is greater precision feasible?

      10. U.S. v. Petrillo – A provision of the Federal communications Act made it criminal force a broadcast licensee to employ more people than they need. The reference to number of employees needed was challenged as being vague. The Supreme Court reversed. Stating that in this instance it couldn’t have been more precise.

      11. The Difficulty in being more precise is an important factor favoring judicial . . . acceptance of statutory indeterminacy.

      12. One more --- there is heightened scrutiny when the law in question impinges upon first-amendment freedoms of speech and press.

        1. This is because it is costly to have vague laws in this area because of the unwanted deterrence of constitutionally protected rights.

        2. Government may regulate in the area of constitutional freedoms only with narrow specificity.

        3. Obscenity: falls out of the category of protected speech.

          1. Roth Test: “average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

            1. Decided on case dealing with a statute prohibiting obscene and indecent pictures or prints . . . held to be constitutional.

          2. Roth Memoirs – Later Memoirs court added 3 elements:

            1. The dominant theme of the material then as a whole appeals to a prurient interest in sex

            2. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters;

            3. The material is utterly without redeeming social value.

    3. Strict Construction 64-84

      1. Requires that ambiguity in interpretation of criminal statutes be resolved in favor of the accused.

        1. Began in response to the rise in the use of the death penalty. “it was against this background of unmitigated severity in serious crimes that the doctrine of strict construction emerged.”

        2. Later, when the death penalty was used much less, legislatures enacted statutes overruling the strict construction and stating that laws should be interpreted in order t benefit the overall purpose.

        3. Today strict construction is used inconsistently


          1. The justification for using it is not to avoid severe punishments, but rather a concern for fair notice.

      1. Keeler Cal. 1970 --- guy kills fetus. Statute says its unlawful to kill a human being which has been defined as someone born alive. --- not fetus.

        1. Court says Although the Penal Code commands s to construe its provisions “according to the fair import of their terms, with a view to effect its objects and to promote justice” It is clear the courts cannot go so far as to create an offense by enlarging a statue or deleting words, or by giving terms used false or unusual meanings.

      2. People v. Sobiek, Cal App, 1973 -74

        1. : Sobiek embezzled money from his investment club (15 friends organized club to invest money in second mortgage) of which he was president.

        2. (1) steal, take, carry away (1) personal property (3) “of another”

        3. P: Court granted quashing of indictment on basis that a general partner cannot be convicted of embezzling partnership property which comes into his possession or under his control during the course of the partnership business by reason of his being a partner. i.e. no one can be guilty of stealing what belongs to himd

        4. I: Is this law applicable or is he guilty of grand theft?

        5. R: The rule that a partner cannot be found to embezzle partnership money should be rejected. è “Whatever the merits of such notices in the civil law, it is clear they have no relevance to the criminal law’s effort to deter deprivations of other people’s economic interests. This is not ex post fact b/c: 1) interpretation of the grand theft statute in this way is reasonable; 2) He must have known that his act was immoral and that he was taking the property of others.

      3. - in Keeler, it was found that nothing in the statute to preclude CL rule; in Sobiek it was found that nothing in the statue required CL rule.

      4. McBoyle v. U.S. – 283 U.S. 25 (1968)

        1. SC finds that a statute prohibiting theft of motor vehicles didn’t apply to an airplane b/c the common usage of the word motor vehicles implies things running on land. Even though a thief probably wouldn’t check the language, we still need to have clearly written laws in order for them to apply.

  1. Actus Reas

    1. Crime requires conduct. The conduct can be an act, an omission (file taxes, register for draft, etc) where there is a legal duty (relationship, statute, contract, assumption of care) to act, or possession (burglary tools, narcotics). Normally, the conduct must occur under prescribed circumstances and sometimes it must cause a prescribed result. The "actus reus" is all of the conduct, circumstances, and results required by the definition of the offense.

    2. Voluntary Act 106-113

      1. Classic definition of voluntary act: act that results from an exercise of the will.

      2. Things that are not voluntary:

        1. A pushes B into C (physically coerced movement)

        2. Swarm of bees (reflex movement)

        3. Unconsciousness

        4. Muscular Contraction or Paralysis produced by disease.

      3. Martin v. State: man convicted of being drunk on public highway b/c police arrested him at his home and drug him to the highway.

      4. People v. Decina: D was epileptic. Had seizure while driving and ran over and killed several children. He was convicted for negligent homicide in a motor vehicle. Everyone agreed that the seizure was involuntary, but he was still liable because the act of driving a car with knowledge that he was subject to epileptic seizures was voluntary.

        1. Time frame , concurrence of voluntary and mens rea

          1. If you expand the time frame you can find a voluntary act and the question is whether you can find a person who performs a voluntary act with a guilty mind – was there time when the D assumed the risk.

      5. Robinson v. : SC holds that being addicted to drugs is not voluntary and thus not criminally punishable.

      6. Powell v Texas: SC holds that a person who is a chronic alcoholic can still be held liable for public intoxication.

      7. Robinson è States cannot punish for status alone. Powell è but states can punish the acts flowing from status è e.g. violence stemming from drug addiction.

      8. Constitutional Limitation

        1. Defining a crime in terms of a “status” rather than a particular activity violates the Eighth Amendment prohibition against cruel and unusual punishment

          1. Ex: it’s illegal to buy drugs, but it’s not illegal to be addicted to them.

      9. Conclusion

        1. Marine – where an act must be voluntary where conduct must be voluntary being carried by the police is not voluntary.

        2. Docina – if we expand the time frame to include mens rea, then you can convict even the ultimate act that causes the harm is involuntary.

        3. Robinson – prohibits states from punishing status

        4. Powell – states can punish acts compelled by status.

        5. Where states sometimes can and do draw a distinction is where the addiction was not voluntary.

    3. Omissions 85-98; note on 105

      1. In order to be held liable for an omission there must be a duty to act.

        1. Mere moral obligation to act is not enough.

        2. Some statutes expressly punish failure to act thereby creating a duty to act.

      2. “Voluntary Act” applies as well to both omissions and possession

      3. From Low book: “Criminal liability can be based on an omission if the defendant is physically capable of performing the act, and if one of two conditions is met: (1) the omission is expressly made sufficient by the law defining the offense; or (2) a duty to perform the act is “imposed by law.”

      4. Chief categories of legal duty are summarized in Jones v. United States, 308 F. 2d 307 (D.C. Cir. 1962).

        1. Duties based on statute, such as the common provision that a diver involved in an auto accident must stop and render assistance to injured persons;

        2. Duties based on relationship, such as that b/t a parent and a minor child.

        3. Duties based on contract, such as the employment responsibilities of a lifeguard; and

        4. duties based on voluntary assumption of responsibility that effectively precludes aid from others, such as the person who takes a foundling home and thus secretes it from the agencies of public assistance.

        5. Deciding factor is that niece was supported by Aunt.

      5. Steps of Analysis: Is there a duty?

        1. What is the source? - Look at the relationship of the victim and the Δ

        2. Was it breached? - Reasonableness of failure to act

        3. Did the breach cause harm? - Actual and proximate causation

      6. Commonwealth v. Konz (1979): Decedent was denied access to his insulin by wife and student on Saturday. On Sunday decedent was given opportunity to seek help but choose not to and died on Monday. While the court found a spousal duty to help, it also found that her conduct was not a proximate cause of death – the causal chain (intervening act) had been broken by his choice not to seek help after her omission.

      7. Regina v. Instan (1893): Δ lived with and was supported by her aunt. Aunt developed gangrene and died within a few days, all the while the Δ knew of her aunt’s condition and did nothing about it, continuing to feed the aunt. Court upheld conviction, saying that while not every moral obligation is a legal duty, every legal duty is founded upon a moral obligation. Familial implied duty?

      8. People v. Robbins (1981): After a religious awakening decedent stopped taking medication and died. Husband charged with homicide for failure to summons medical aid. Indictments were thrown out – unwarranted extension of spousal duty that would be in conflict with NY right to not undergo medical treatment.

      9. People v. Beardsley (1907): Δ and a women drank for two days and she took morphine. Δ passed women off on friend (wife was coming home) and she died. Prosecutor claimed duty as “her natural guardian and protector” – court ruled no duty (not married).

      10. People v. Oliver (1989): Δ brought man home from bar and gave him spoon to shoot up. He collapsed and she went back to bar. Per Δ’s instruction, her daughter and friend dragged man into shed where he died. Court found that Δ took the decedent out of a public place where he could have been helped therefore she took charge of a person who could no longer take care of themselves – establishing a duty that was breached.

      11. Jones v. United States, Defendant was entrusted with care of two children. She let them starve nearly to death in her basement.

        1. court holds that there was no duty of care since there was no contract for her to care for the children.

  2. Mens Rea- a guilty mind or mens rea is generally regarded as an essential requirement for the imposition of criminal liability

    1. Common Law Approach (114-137)

      1. NOTE: under CL if a statute doesn’t mention special mens rea the default is General Intent. ---

      2. NOTE: also the default level of mens rea is generally negligence and sometimes recklessness.

    2. Historical Origins

      1. Regina v. Faulkner

        1. Facts: A seaman on a ship broke into a liquor barrel and when he tried to plug the hole he lit a match to see. This caused a fire and the ship was destroyed, he was charged with arson.

        2. The prosecution wanted to transfer intent from the theft to the arson, Court rejects this saying that when he set fire to the ship he had a felonious intent but not the intent of burning the vessel

        3. Issue: Did he intentionally set fire to the ship? Is it sufficient that he should have foreseen the consequences?

      2. He did not intend to start the fire and the fire was not a necessary consequence of the felony, and if it was a probable result of the felonious act that he should have foreseen, the intent to start the fire could be imputed to him but the view was not submitted to the jury

      3. He was not convicted because the jury was not asked to make this determination (should he have foreseen), what they were charged with was insufficient (intent for theft transfers to arson)

    3. Common Law – In common law mens rea terminology usually does not mean what one would expect, and the statutory language doe not reflect accurately what are the mental elements of the various crimes

    4. Regina v. Cunningham – A man steals a gas meter from his basement and lets gas leak out into the house next door nearly asphyxiating an old woman who lived there. He was convicted under a statute that poisoning another person was a felony. The trial judge instructed the jury that the statute had no mention of the necessity for intent so that his “unlawful and malicious act” of stealing the meter, which caused the lady to be poisoned, was enough.


    1. Morissette v. United States

      1. Morissette convicted of stealing a U.S. government property after a jury instruction omitting the requirement that he intended to “wrongfully” deprive the government of its property.

      2. Rule: where intent of the accused is an ingredient of the crime charger, its existence is a question of fact that must be submitted to the jury.

      3. Reasoning: A conviction for stealing gov. property requires an intent to wrongfully deprive. At CL, theft offenses required knowledge on the pat of a defendant that the act of taking constituted a wrongful deprivation in order to sustain conviction. Mens rea is so rooted in CL, can’t assume then that no mens rea is required when a statute fails to mention it. Rather, its assumed to be required unless specifically stated otherwise.

      4. NOTE: under common law once you get convicted of a crime you are convicted of the crime you actually committed. Higher grade if the fake rolex turns out to be real. Under the MPC it’s the opposite.

    2. Mens Rea levels of intent (most to least)

      1. Purposely è intentional

      2. Knowingly è necessary consequences

      3. Recklessly è actual foresight of risk

      4. Negligently è should have foreseen risk

    3. Specific v. General Intent

      1. Specific Intent

        1. There are three kinds of specific intent crimes, all focusing on an actual subjective intent concerning something the Δ did or planned. Some mental picture of the crime or outcome exists in the persons mind.

          1. Contemplated Conduct – Δ must intend to engage in conduct beyond what has already been done.

          2. Contemplated Impact – Δ hope or intend that conduct will have some future impact or effect.

          3. Knowledge (willful) that one or more elements of the Actus Reus exists – Δ know elements of actus reus exist or believe that facts exist even if they don’t.

      2. General Intent

        1. General Intent = recklessness or negligence.

          1. Recklessness - Focuses on actual awareness of risk that an element of a crime will occur.

          2. Negligence - Refers to situations where the Δ should have been aware of a risk that an element of a crime will occur. (see mistake of fact defense)

      3. Note: Mistake of Fact Defense: Morissette’s defense was based on mistake of fact. His claim was that he thought the government had abandoned the bomb casings and had left them for anyone to take.

        1. This turned on the distinction b/t specific and general intent. If it was general then it would have tuned on whether it was an “honest and reasonable mistake.” If specific then is was a valid defense whether or not the mistake was reasonable under the circumstances.

        2. All of the elements of a crime must be proved by the prosecution. Its just framed as a defense because the defense will bring it up. The prosecution still has the burden of proving that its not true.

    4. Model Penal Code Approach App A-1-A-3; 137-49

      1. Article 1 § 1.02(3) The provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this Section and the special purposes of the particular provision involved. The discretionary powers conferred by the Code shall be exercised in accordance with the criteria stated in the Code and, insofar as such criteria are not decisive, to further the general purposes stated in this section.

        1. Essentially saying that they won’t use rule of strict construction.

      2. Article 2 § 2.01 (1) -- states that people won’t be guilty of an offense unless the conduct was voluntary or the liability is based on an omission to perform an act of which he was physically capable.

      3. (2) The following aren’t voluntary.

        1. a reflex or convulsion

        2. a bodily movement during unconsciousness or sleep

        3. conduct during hypnosis or resulting from hypnotic suggestion;

        4. a bodily movement that otherwise is not a product of the effort or determination of the actor either conscious or habitual.

      4. (3) Liability for omission unaccompanied by action will only happen if:

        1. the omission is expressly made sufficient by the law defining the offense; or

        2. a duty to perform the omitted act is otherwise imposed by law.

      5. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

      6. General Requirements of Culpability § 2.02 –

        1. Minimum Requirements of Culpability. Except as provided in § 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

        2. Purposely: A person acts purposely with respect to a material element of the offense when:

          1. i. If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in the conduct of that nature or to cause such a result; and

          2. ii. if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

        3. Knowingly: A person acts knowingly with respect to a material element of an offense when:

          1. i. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

          2. ii. if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

        4. Recklessly: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

          1. Requires a finding of fact by the jury.

        5. Negligently: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree hat the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

        6. Culpability required unless otherwise provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

        7. When a code prescribes the kind of culpability to apply to one element of the offense, it applies to all elements of the offense unless another purpose is clear.

        8. if the law states that a certain level of culpability is required, all higher levels also meet this burden.

        9. Requirement of knowledge Satisfied by Knowledge of High Probability. When the knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

      7. § 2.04 Ignorance or Mistake

        1. Ignorance or mistake as to a matter of fact or law is a defense if:

          1. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or

          2. The law provides that the state of mind established by such ignorance or mistake constitutes a defense.

        2. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

        3. A belief that conduct doesn’t legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

          1. The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the alleged conduct; or

          2. He acts in reasonable reliance on an 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.

        4. The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

      8. Actus Reas under MPC –

        1. Includes Conduct, circumstances and results.

          1. The conduct is sometimes specific as in larceny “taking and carrying away” or broad as in murder “any act or omission when required duty to act that causes the death of a human being.”

          2. Circumstances: in larceny must be property of another person for eg.

          3. Result: ie. Death of a person in murder.

          4. NOTE: although the elements of actus reas don’t neatly fit into one of this categories, it is essential to do this every time you approach an MPC problem.

        2. Step Two of MPC analysis: once the conduct is separated in conduct, circumstances, and result you must then apply the required mens rea to each element.

        3. NOTE: default standard is recklessness.

  1. Derivitive Defenses:

    1. Mistake of Fact

      1. Common Law:

        1. Step 1: classify the crime as one of specific intent, general intent, or strict liability

        2. Specific intent: an honest mistake of fact is a defense.

          1. This assumes that the mistake relates directly to a specific intent required for commission of the offense.


          1. Green v. State (1949): Δ drove into woodland and killed several hogs. It turned out they were someone elses and he was arrested. He asserted a mistake of fact defense. An honest mistake of fact is a defense to a specific intent crime.

        1. General Intent: an honest and reasonable mistake of fact is a defense. This rule will apply to actus reas elements of specific intent crimes as long as there is no strict liability with respect to that element.

          1. This assumes that the mistake relates directly to the general intent required for commission of the offense.

          2. Why? Because general intent crimes require recklessness or negligence. One who makes a reasonable mistake isn’t negligent.

          3. State v. Walker (1978): Δ and son abducted Δ’s grandson and another school kid whom they believed to be the Δ’s granddaughter (the boy’s sister). The court remanded the case with the instruction that the mens rea required for the crime (abducting a child without the consent the parent), was knowledge (of the unlawfully element) – therefore an honest mistake of fact was a defense.

          4. Yermian v U.S. (1984): Δ made false statements on a security clearance form. The offense required a specific intent but the mistake of fact was related to an element of the offense that did not require specific intent. The court held that the general intent rules thus applied – whether the Δ “honestly and reasonably” believed that the lies did not implicate the interests of the federal government. The Δ admitted that he knowingly made false statements. The mistake was offered with tregard to an element of the offense that did not require a specific intent, i.e. that the false statement involved a matter within the jurisdiction of the US. The general intent rules therefore apply, and the question accordingly was whether the Δ “honestly and reasonably” believed that the lies did not implicate the interests of the federal government.

        2. Note: when one makes a mistake as to the actus reas elements of a crime this can be a defense only where the mistake shows that the specific intent required by the crime was not there.

          1. Ie receiving stolen property. Mistaken belief that the property was not stolen is a defense.

          2. Receiving crim law books known to have been stolen. --- mistaken belief that they were stolen English books is only a defense if the crime is interpreted to require specific intent as to the element of crim law.

        3. Strict Liability: mistake of fact is not a defense if it relates to an element for which strict liability is imposed.

    1. Ignorance/Mistake of Law 149-163

      1. State v. Fox: 124 Idaho 924 (1993)

        1. Fox charged with possession of ephedrine, a controlled substance in Idaho. He contended that he was not aware that it was illegal.

        2. Rule: The mens rea element necessary for conviction of possession of a controlled substance only requires knowledge of the nature of the substance possessed.

        3. Reasoning: possession of a controlled substance is a “general intent” crime. For these types of offenses, the mens rea requirement is satisfied by the defendant knowledge of the facts sufficient to constitute the criminal act. Here Fox knew he possessed ephedrine. That’s enough.

      2. Maxim: ignorantia juris neminem excusat: ignorance of the law is no excuse:

        1. If it were allowed as a defense, it would always be entered by the Defense. And the court would have to decide it in every case.

        2. Really difficult to prove one way or the other if someone knew the law.

        3. Some states have proposed reforms to this rule: Jersey has code stating that there’s no crime if the mistake was reasonable and the actor had pursued all means available to find out if what he was doing was legal.

      3. Registration laws may be different: Lambert v. California: woman convicted for failure to register in LA. Court states that actual knowledge of required for registration laws. Since no conduct is required just mere presence.

              1. Problems with the Maxim

            1. The threat of penal sanctions can have no deterrent effect if the actor reasonably believes conduct to be lawful

            2. Everyone is presumed to know the law is easier when the offenses are Malum in se however modern laws define a great many crimes that are Malum Prohibitum.

            3. If ignorance if the law would always be alleged by the party, and the court, in every case, would be bound to decide the point.

            4. Holmes – Public policy sacrifices the individual to the public good. Such an excuse would encourage ignorance of the law.

            5. Hall – The degree of vagueness increasing as one proceeds from the core of the rules to their periphery. It is therefore possible to disagree indefinitely regarding the meaning of these words. It is the courts job to decide one way or another on issues of law. If it was left up to the individual, whenever a Δ in a criminal case thought the law was thus and so, he is to be treated as thought he law were thus and so, i.e. the law actually is thus and so.

              1. Exceptions:

            6. Interpretation of Mens Rea Terms - Mens rea words have on occasion been interpreted to permit a defense in the case of good faith mistakes about the meaning of the criminal law.

            7. Misled by Official Authority - Some courts have acquitted on grounds of fairness in cases where the Δ made a mistake of criminal law in reliance upon an official statement.

            8. Strict Liability Unfair - Application of the principle that ignorance of the criminal law is not a defense is unacceptable in situations where the context provides no warning signals to the reasonably socialized individual that give the individual a fair opportunity not to become a criminal.

            9. Due Diligence Effort to Ascertain the Law - There is some support for the proposition that a defense should be provided to a person who diligently tries to avoid criminal conduct by learning about the law in advance. Not in very many places, however.


      4. Mistake of non/criminal law:

        1. State v. Woods:

          1. Case dealing with woman convicted of adultery under blanket act for being with married man. She believed him to be divorced.

          2. Brings up issue of mistake of non-criminal law relevant to the criminality of the conduct.

        2. Under the Common Law if the offense required a specific intent or some other special mental element, a mistake of a non-criminal law that negated the required mens rea was a defense. ---- the mistake has to be honest.

        3. But: under CL general intent crimes --- no mistakes of law were a defense --- mistakes of facts have to be reasonable.

        4. MPC -- Model Penal Code--- has to negate recklessness for mistake to work.

          1. Mistake of law not a defense unless the statute defining the crime expressly requires knowledge of the law (i.e. the mistake negates the mens rea which is knowledge.)

          2. M

      5. Strict Liability 193-205 -- There are four basic times when strict liability is imposed:

        1. Public Welfare Offenses (Violations under MPC)

          1. Dispense w/mens rea for certain elements and holds that the guilty act alone makes out the crime

          2. Under MPC: Strict Liability concerns a category of offenses that the MPC calls “violations.” Under § 1.04 violations aren’t crimes and carry only fines, forfeitures, or other civil penalties. The culpability structure doesn’t apply to violations. (like in torts).

          3. Examples:

            1. Distributors or sellers of impure foods/drugs, intoxicating liquors, hazardous or toxic materials

            2. Traffic regulations

            3. Business licensing

          4. The offenses usually share the following characteristics:

            1. No harm is required to occur, although Δ is usually in a position to prevent great harm by the exercise of care

            2. The offense does not involve conduct designed to harm a particular individual, but conduct that may harm random members of the public at large

            3. The underlying conduct is not itself immoral, or not necessarily immoral, but is sought to be controlled for reasons of public health or safety

            4. The public injury will occur irrespective of good or bad intentions of Δ

            5. Normally the penalties and the stigma of conviction are relatively minor

        2. Immoral behavior - Closely associated with private morality, and in particular with sexual behavior, that traditionally has not required mens rea for one critical element of the offense

          1. Prince v. Regina (1875): Δ convicted of taking a girl under the age of 16 (she was 14) out of the possession and against the will of her father. Δ thought she was 18 but mistake of fact defense denied. The court reasoned that Δ’s conduct would have been morally wrong even if the girl had been 18 – Malum in Se.

        3. Elements of any crime that do not affect the criminality of the Δ's behavior. Strict liability for grading elements, mens rea for the lesser offense is sufficient to punish you for the greater offense if on the facts you have violated the greater offense (strictly liable for value of items stolen).

          1. Mistakes of facts as to a grading element are not a defense. i.e. mistake of the value of the property. You still knew you were stealing just thought it was a lesser crime.

          2. The GRADE of the offense is based on what was done, not what was thought to be done.

        4. Other – Felony murder, Firearm regulations, lying to federal government official, etc.

          1. United States v. Freed (1971): Δs were indicted for possession of unregistered hand grenades in violation of a federal statute. The act requires no specific intent or knowledge that the hand grenades were unregistered. Possession is the criminal act required. (Douglas) This is a regulatory measure in the interest of public safety, which may well be premised on the theory that its no surprise that possession is hardly an innocent act. (Douglas) Knowledge not of law (negating fair notice holding of trial court) but simply of possession. It should be common sense that the govn’t would have such regulations.

          2. Rule: A person may be convicted of a crime even if he’s not aware that the act was illegal.

          3. Reasoning: When a criminal statute is of a regulatory nature tending to promote public health and safety, it isn’t necessary to show a specific intent to violate the statute. This is particularly true when the nature of the offense is such that a reasonable person is likely to suspect that the conduct is prohibited. Here, the statute in question is of a regulatory nature, and a reasonable person would suspect that owning hand grenades is illegal. Therefore, Freed did not need a specific intent to break the law.


          1. Staples v. United States (1994): Δ failed to register a machine gun under the same statute as Freed. Supreme Court held that the severe penalty associated with the offense (10 yrs.) tended to suggest that Congress did not intend to eliminate a mens rea requirement and thus public welfare offense rational doesn’t apply.

          2. United States v. Yermian (1984): Δ lied about his employment history and criminal record on a job questionnaire for his employer, a defense contractor. Δ admitted to making false statements but claimed that he had no knowledge it would be communicated to a federal agency. Court ruled that Δ knew or should have known. Noted the language was of a federal jurisdictional element and that such language need not contain the same culpability requirement as other elements of the offense.

        1. Rationale – Appropriate to use strict liability where the potential social harm is very great and where it can be said that known context gives adequate notice that behavior is clearly wrong.

        2. When talking about SL we are referring to crimes in which we dispense with one of the mens rea requirements. Its not ACTUAL absolute strict liability.

    1. Involuntary Acts

            • Essentially same as CL

            • MPC §§2.01(1)-(2)

    2. People not guilty of a criminal offense unless conduct “includes” a voluntary act, omission to which his is physically capable. Not voluntary if it is - reflex, convulsion, bodily movement during sleep/unconsciousness, conduct while hypnotic, not a product of “effort or determination” by actor

      1. Mistake of Fact - §2.04 (1) & (2)

                  1. Mistakes That Negate Mens Rea - A mistake of fact is a defense if it negates any mens rea requirement of the offense. §2.04(1)(a) Hence, if the prosecutor is required to prove a mens rea of X, it is a defense if the Δ makes a mistake that creates a reasonable doubt that X exists.

                  2. Mistakes That Establish a State of Mind Constituting a Defense - A mistake of fact is a defense if it establishes a state of mind that constitutes a defense. §2.04(1)(b) The provision applies when the definition of the offense, to some other relevant provision of the penal law, states that a contain belief is a defense – basically mistake of circumstances (bigamy – thought spouse was dead)

                  3. Grading Elements - Since grading factors require mens rea, a mistake of fact as to a grading factor can be a defense if it negatives the mens rea. But if the Δ would be committing a lesser offense on the facts as they were believed to be (as will always be the case with grading factors), the Δ will be convicted of the lesser offense (the thief who believes he is only committing petty theft when in fact it is grand theft) §2.04(2) - establish required mens rea and the “not” with mistake of fact.

      2. Mistake of Criminal Law

                  1. The Paradigm Case

              1. Ignorance or mistake as to whether given conduct constitutes a crime is not a defense. And ignorance or mistake as to the existence, meaning, or application of the law determining the elements of an offense is not a defense.

              2. §2.02(9) – States that no mens rea is requires :as to whether conduct constitutes an offense” or as to “the existence, meaning or application of the law determining the element sof an offense. This means that no mens rea as to the criminality of behavior is required. States that knowledge of the law is not an element to be negated – prosecutors do not have to prove that Δ knew the law – it is not an element of the crime to be proved. Establishes no mistake of criminal law.

                  1. Exceptions

              3. Where the MPC so Provides:

              4. §2.04(3)(a) ignorance of the criminal law is a defense if the law is unknown to the Δ and has not been published or otherwise reasonably made available (notice).

              5. §2.04(3)(b) contains a list of official sources. A mistake as to the meaning of the criminal law based on one of these sources is a defense if it is not negligently made. Reliance on official statement (would change Hopkins and Striggles) and Δ must actually believe the conduct to be lawful and that belief must have been formed “in reasonable reliance” on an official misstatement from one of the prescribed sources.

              6. Where the definition of the offense so provides - §2.02(9) – It is possible in the definition of a particular offense to require some mens rea level as to the criminality of behavior, or as to the meaning, existence, or application of the law determining the elements of an offense (not found in MPC)

              7. Non-criminal law - §2.04(1)(a) – Establishes mistake of fact or law however since §2.02(9) forbids mistake of criminal law, law in §2.02(1)(a) is taken to mean non-criminal law (see below)

              8. Stronger cases where there is a question of fair notice and whether the party acted in reasonable reliance upon official sources – also where the law is of a regulatory nature versus Malum in se.

        1. Mistake of Non-Criminal Law - Treats mistakes of non criminal law just like mistakes of fact. A mistake of the non-criminal law is a defense if it negates mens rea.

          1. Intoxication 181-93

            1. Terminology: Intoxication includes alcohol and drugs. “Voluntary” intoxication is the voluntary introduction of artificial substances into the body which the D knows or should know are likely to have intoxicating effects.

            2. Admissibility to negate actus reas

              1. can just be used as evidence of the D’s inability to perform the act.

              2. Common law doesn’t permit intoxication as a defense to the voluntariness of an act.

            3. Admissibility to Negate Specific Intent – three views:

              1. Not admissible to negate a specific intent.

                1. 20% of states take this approach.

              2. Admissible whenever relevant – ie. Admisable to negate specific intent whenever evidence is relevant to the particular specific intent required by the definition of the offense.

                1. 40% of states take this approach.

              3. Admissible only to show that D lacked capacity to form a specific intent – burden of persuasion is on the D by a preponderance of the evidence.

                1. 40% of states take this apprach

            4. General Intent Crimes:

              1. Consensus that intoxication is inadmissible to negate mens rea for general or “basic” intent offenses.

            5. Director of Public Prosecutions v. Majewski (1976 ENG): Δ was convicted of assault – Δ claimed he was under the influence of drugs and alcohol and thus should escape liability. The court held that self-induced intoxication provides no defense and is irrelevant to offenses of general intent and if Δ is unaware of a risk which he would have been aware had he been sober, such unawareness is immaterial.

            6. Chittum v. Commonwealth (1970): Δ was convicted of attempted rape over an defense of intoxication. A restrictive VA court ruled that intoxication can mitigate specific intent only in cases of murder (to 2nd degree) and is never an excuse for crime.

            7. MPC § 2.08 Intoxication

              1. Except as provided in Subsection (4) of this section, intoxication of the actor is not a defense unless it negatives an element of the offense.

              2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

              3. Intoxication does not, in itself, constitute mental disease within the meaning of section 4.01.

              4. Intoxication which isn’t self induced or is pathological is an affirmative defense if it caused the actor to lack substantial capacity to either appreciate the criminality of the act or to conform his conduct the requirements of law.

              5. Definitions

                1. Intoxication means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;

                2. Self-induced intoxication means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime.

                3. Pathological Intoxication – means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.

            8. Summary of MPC intox standard

              1. if required mens rea is purpose or knowledge: intoxication is always admissible to disprove the required purpose or knowledge whether or not it was self-induced or pathological.

              2. Recklessness: if intox is NOT self-induced or is pathological, then the intox is fully admissible to show that the D was unaware of the risk.

              3. Recklessness: if intox is self induced and isn’t pathological, then the D may not offer evidence of intox show unawareness of a risk that the D would have otherwise been aware of if not intoxicated.

              4. Negligence: person held to standard of reasonable sober person. The situation would not take into account the defendant’s intoxicated state.

        2. Homicide

          1. Intro: Distinction B/t Murder and Manslaughter

            1. Murder under Common Law: 4 types of cases.

              1. Those where the actor intended to kill or knew that death would result

              2. Those where the actor intended to inflict grievous bodily harm or knew that such harm would result

              3. those where the actor manifested reckless indifference to death – a state of mind variously described as a “depraved mind” and “abandoned and malignant heart,” or “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty

              4. Those where the death occurred while the actor was engaged in the commission of a felony

            2. Manslaughter under CL

              1. where actor intended to kill but committed the offense in a sudden heat of passion engendered by adequate provocation (voluntary manslaughter)

              2. where actor engaged in reckless or negligent behavior that was insufficiently culpable to constitute murder but more culpable than ordinary civil negligence (involuntary manslaughter)

              3. those where the death occurred while the actor was engaged in the commission of an unlawful act not amounting to a felony. (involuntary manslaughter).

            3. Categories of homicide

              1. Murder - four categories of murder, when a person acts with:

                1. Malice aforethought (means with intent and knowledge to kill)

                2. Intent to inflict serious bodily harm


                1. Extreme recklessness

                2. Felony murder

        1. Voluntary Manslaughter – an emotional state mitigates it from murder, but intent is still there

        2. Involuntary Manslaughter – unintentional homicide where defendant acted with criminal negligence or recklessness

        3. Misdemeanor Manslaughter – homicide occurring during the execution of a misdemeanor

        4. Freddo/Casassa è Intentional homicide can become mere manslaughter.

        5. Essex è unintentional homicide can become murder

          1. Grading: Intentional Homicide 657-64, 774-801

            1. Different Degrees of homicide graded by “premeditation” (1st degree) and “deliberate” (2nd degree)

            2. People v. Anderson: ---

              1. man murdered 10 year old girl. Stabbed more than 60 times.

              2. Rule: the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation. This was therefore 2nd degree.

            3. 1st Degree: 3 patterns (most 1st degree verdicts have all 3)

              1. Evidence of planning activity

              2. evidence of motive.

              3. evidence as to the manner of the killing that showed a preconceived design to kill.

            4. Freddo v. State – dude keeps calling Freddo a son of a bitch despite repeated requests to stop. One day Freddo whacks him in the head.

            5. Rule: murder should be reduced to voluntary manslaughter if the passion prompting the killing was due to a provocation that would, in the mind of an average reasonable man, stir resentment likely to cause violence, obscuring the reason and leading to action from the passion rather than judgment.

            6. Heat of Passion - An intentional killing will be reduced to manslaughter if committed in the heat of passion caused by adequate provocation before a reasonable person would have cooled off:

              1. The Δ must have actually lost control, the loss of control must have been in response to legally adequate provocation

              2. Δ's reactions must have been reasonable or understandable.

              3. Δ must not have actually cooled down, the time between the provocation and the killing must not have been too long (as determined by the court), and it must have been reasonable for the Δ not to have cooled down given the actual passage of time.

                1. State v. Gounagias – dude sodomized then ridiculed about it. Kills two weeks after the incident. Holding: that this is not sufficient to lower the grade. Too much of a cooling period.

            7. People v. Ogen: the adequacy of provocation should not be judged by reference to the accused’s special sensitivities.

              1. Criticized b/c what the law recognizes as a reasonable provocation is what a white male thinks. Ie finding his wife in bed with another man.

            8. Included/Excluded as adequate provocation:

              1. Included

                1. Being stricken

                2. Angry words followed by assault

                3. Sight of friend or relative being beaten

                4. Sight of citizen being deprived liberty

                5. Site of man in adulterous situation with the man’s wife

              2. Excluded

                1. Just words alone

                2. Trivial assault or battery not accompanied by words

                3. Trespass to property

                4. Breach of contract

                5. Misconduct by child or servant

              3. Modern Trend – Subjectivication Reasonableness standard

                1. Would a reasonable person in the actor’s situation have been provoked into a heat of passion

                2. Dispensed with the time part (Berry)– more evidence can go to jury about the Δ

                3. Totality of the circumstances

                4. More traits can come in – age, disability, sex, race, culture

              4. Mistake of Circumstances – Different approaches:

                1. No mistake defense – even honest and reasonable

                2. Honest and reasonable and falls into one of the common law categories – majority position

                  1. Belief so reasonably formed that excited the uncontrollable passion – calculated to induce the same emotions as would be felt were the wrongful act in fact committed.

                  2. Yanz v. (1901): Δ killed with the erroneous belief that his wife was committing adultery. The court found that the belief, so reasonably formed, that excited the uncontrollable passion can be an excuse for homicide – if the belief was honest and reasonable.

                3. Honest - Take position person believed it to be and if it was honest then it mitigates

            9. Mistake of Fact in Provocation doctrine: ie mistakenly believed that wife was cheating then killed her.

              1. if he reasonably believes that he has been injured by the other

              2. a reasonable man who actually has suffered such an injury would be put in a passion directed against the other.

            10. Emotional Disturbance:

              1. People v. Casassa: Casassa became obsessed with his neighbor and killed her. He was convicted of murder. The trial court rejected his argument that whether he was under an extreme emotional disturbance sufficient to mitigate the homicide to manslaughter should be viewed from an entirely subjective viewpoint. Court found that the reaction was so peculiar to Cassassa that it was unreasonable to mitigate the crime. The court therefore convicted Casassa of 2nd Degree murder.

              2. Rule: whether a D was so emotionally disturbed as to lessen murder to manslaughter involves both an objective and subjective analysis.

              3. Reasoning: the applicable penal code permits the affirmative defense where the D acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse. This language clearly introduces both subjective and objective elements into the analysis. It is subjective as to whether or not he defendant was in fact under an extreme emotional disturbance. It is objective as to whether or not the disturbance was reasonable. The court here appears to have used this standard, and found Casassa’s disturbance to be unreasonable.

            11. MPC – see 210.3(1)(b), MPC has some principle differences from the common law

              1. It has no legally adequate categories

              2. No mention of time (no cooling off period)

              3. No requirement that victim be the provoker

              4. Has a subjective (takes the circumstances as the person believes them) and objective component (were you stressed and was it reasonable under the circumstances)

                1. MPC has led to a reformation of the law of provocation in that it significantly broadens the common law standard

          2. Unintentional Homicide 801-10

            1. Essex v. Commonwealth

            2. MPC vs. CL è No reference to cooling time; no requirement that victim be provoked; Takes subjectively what perp things facts will be, while CL takes what they reasonably would be. But once you have those subjective beliefs, you make objective decision on whether his actions were reasonable, given his subjective beliefs. CL is completely objective.

            3. The Grading of Unintentional Homicide

              1. The degree of culpability sufficient for murder – common law recognized two kinds of unintentional homicide as murder based on

                1. Intent to inflict grievous bodily injury

                2. Theory of recklessness or negligence that reached a high degree of callousness or indifference to life

              2. Common law

                1. Extreme recklessness murder

                2. Negligent reckless manslaughter

                3. Civil negligence/no fault (no crime)

              3. MPC

                1. Extreme recklessness murder 2102(1)(h), (question of whether intoxication would negate this)

                2. Reckless manslaughter 210. 3(1)(a)

                3. Negligent homicide 210.4

                4. Civil negligence/no fault (no crime)

              4. What distinguishes negligence, criminal negligence, and extreme recklessness? The substantiality of the risk, the awareness of the risk, and the justification for taking it; also take into account the sense of fairness

          3. Causation 819-28

            1. People v. Kibbe

              1. Facts: Kibbe and Krall were prosecuted on murder charges after robbing a drunk man and leaving him freezing on a low-visibility highway with no clothes. He was later struck and killed by a truck.

              2. Rule: To be a sufficiently direct cause of death so as to warrant the imposition of a criminal penalty, the ultimate harm is something that should have been foreseen as being reasonably related to the acts of the accused.

        6. The relevance of causation

        1. Issues of causation arise in the criminal law whenever the definition of the offense specifies a result as an actus reus element, the causation inquiry concerns a relationship or linkage between the defendant’s conduct and the result such that the defendant can properly be punished for the result

        2. Both issues of grading and criminality can turn on causation

        1. The common law approach to causation

        1. Two questions generally:

        1. But for (actual or cause in fact) - Factual causation, measured by the ‘but for’ test, this inquiry states a necessary but not sufficient condition of liability i.e. that the result would not have occurred ‘but for’ the defendant’s antecedent conduct

        1. Proximate cause (legal cause) - If the defendant’s conduct is a ‘but for’ cause of death, the second question that must be asked is whether it was also the “proximate cause” of the death; the question usually asked in this context is whether some other cause “intervened” in the chain of events begun by the defendant’s conduct such that the defendant should not be held responsible for the ultimate result, if victim makes a choice that causes his death it may break the casual chain (unless it is coerced or because of mental incompetency or deemed not to be a free choice), the more culpable the defendant the more likely he will be deemed to be the proximate cause

        2. If some intervening cause that is completely unrelated to defendant’s action and brings in culpability of separate person, this also cuts off causation. è less intent.

        3. Court more likely to stretch causation when perp. intended to kill or do harm è you can transfer intent

        1. MPC approach

        1. MPC made a deliberate attempt to cut loose from the encrusted precedents of proximate cause, in so doing, it substituted a new vocabulary and discarded the old common law terms for reasoning about the proximate cause question

        2. Key to the MPC analysis of causation is recognition that the problem of proximate cause is not a problem of describing physical relationships, but one of assessing their legal significance

        3. The question, in other words, is not quantitative, but qualitative; it turns on a judgment of blameworthiness and responsibility and should be thought of in those terms, not in terms of physical causation

        4. MPC causation 2.03

        1. But for

        2. Justly attributable to defendant

        1. Mens rea = result (that was intended or known)

        2. Different person/property (hurt or killed)


        1. Lesser harm (occurred when defendant intended a greater harm)

        2. Not too accidental/ remote (foreseeable enough to make defendant guilty)

        If applied to Kibbe è judgment call over whether it’s fair to hold them responsible or not è MPC would allow the jury to decide.


        1. Problems with the MPC

        1. Concurrent causes - MPC reliance on ‘but for’ causation is criticized because it ignores the cases in which ‘but for’ causation is not essential for liability (difficulty of case when conduct of two actors is completely independent, and each actor’s conduct would have been sufficient by itself to produce death)

        2. Transferred intent – Example where A shoots at B but bullet hits a wall and kills C, intent to kill B is transferred to C, MPC uses this common law theory which is a type of strict liability and it is inconsistent with the MPC’s normal approach to strict liability

        3. Volitional Human Intervention – A difficult class of causation problems is created when the defendant set in motion a series of events that is interrupted by the voluntary action of another person, the MPC would resolve this by asking whether the actual result was not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or the gravity of his offense

          1. Felony Murder 828-50, 861-62

        4. The rule and its traditional limitations

        1. The original (common law) statement of the felony murder rule was that a person who commits any felony and all accomplices in that felony are guilty of murder if a death occurs during the commission or attempted commission of the felony, liability is strict, in the sense that no inquiry need be made into the culpability as to the death of any of the participants in the felony

        2. Courts have used essentially numerous devices for limiting the situations to which the rule applies:

        1. Must occur during the felony from attempt to escape

        2. A causation limitation, usually expressed as a requirement that the death be a “natural and probable result” of the felonious conduct

        1. ‘But for’ for the felony, death would not have occurred

        2. Proximate cause, the homicide which followed was a direct result of the commission of that felony, must be foreseeable (generally read pretty liberally in the spirit of the rule)

        1. The felony must be inherently dangerous, either in general or on the particular facts

        1. Mrs. Baker (Murder, rape, sodomy, Burglary, arson, kidnapping, escape, robbery)

        1. Independent felony/merger rule - A requirement that the felony be “independent” of the homicide, i.e. if a person kills someone with a gun without intent and is guilty of manslaughter (a felony), the felony murder rule does not apply because the felony was not independent of the homicide, the felony was the homicide, otherwise every manslaughter would be a murder

        1. Death by non felon/agency approach - felon not subject to felony murder if someone else caused that death i.e. the felon is not the proximate cause (example of during an armed robbery shop keeper pulls a gun and while shooting at the robber kills a customer) inconsistent with felony murder rule and inherently dangerous limitation

        2. Only act must occur during felony. Thus if robber stabs someone and they don’t die for another year (but of the wounds) robbers is still guilty of murder.

        1. Rationale of the Rule

        1. The felony murder rule has two principal consequences:

        1. First, it criminalizes behavior that absent the rule would not be an independent homicide offense

        2. Second, it upgrades homicidal behavior that otherwise might be classified as a lesser offense

        1. Deterrence: The only rational function of the felony murder rule is to furnish an added deterrent a) to the perpetration of felonies which, by their nature or by the attendant circumstances, create a foreseeable risk of death. b) Also, once you commit a felony, we want to deter you from killing anyone.

        1. Judicial rejection of the rule: People v. Aaron

        1. The felony murder rule was rejected by the Michigan Supreme Court in People v. Aaron

        2. The reasons for the rule no longer exist, making it an anachronistic remnant a historic survivor for which there is no logical or practical basis for existence in modern law

        3. Thus, although the felony murder rule did not broaden the definition of murder at early common law, it does so today, we find this enlargement of the scope of murder unacceptable, because it is based on a concept of culpability which is totally incongruous with the general principal of jurisprudence today

        1. The MPC and modern statutes

        1. The MPC takes the position that the felony murder rule is indefensible in principle because it bases the most severe sanctions known to the criminal law on strict liability, MPC ties mens rea to each element of the crime

        2. It does, however, make one concession to the historical momentum of the rule in § 210.2(1)(b), the provision for extreme recklessness homicide, such recklessness is assumed if actor is engaged in or an accomplice to a felony (lists the felonies)

        3. Principle of effect is that jury still has to find perps had extreme recklessness. Then if you find this recklessness, we will assume indifference to life. (?)

        4. This provision still requires a finding that the mens rea is satisfied but it gives a hint that mens rea can be assumed by the act


        1. State v. Goodseal: Kansas 1976 (834)

        1. Goodseal was a convicted felon and one night while interrupting a woman he knew and a man she was turning a trick with (based on her request) and, as he alleges, accidentally shot and killed the man

        Court said the statute does not require malice as an essential element of felony murder but they concluded that to come within the clause such a felony must be one inherently dangerous to human life


        Theoretical analsyis

        1. The court next considered if possession of a firearm by an ex-felon is inherently dangerous to human life

        2. They found it was not and so state that there is nothing wrong with considering the nature of the offense in the context and circumstances of its commission in determining whether a particular felony was inherently dangerous to human life

        3. In this case they found it was

        4. Court states that where doubt exists as to whether in a particular case unlawful possession of a firearm ins inherently dangerous, there is nothing wrong in considering both the nature of the offense in the abstract and the circumstances of its commission in determining whether the offense was inherently dangerous to human life in the particular case

        5. Distinction between inherently dangerous (pointed it at him, menacing), but not assault. So went far enough to be dangerous but not assaulting. Not safely but also not assaulting.

        6. Inherent dangerousness: 3 ways to do this. 1) ct. looks at facts and question if for crime to be committed, would perp. have to commit act in an inherently dangerous fashion. (careful robbery would also enact felony murder rule, but careless theft would not be b/c not considered dangerous). 2) only on facts (careful robber ok, but careless thief in trouble). 3) look at abstract plus how it’s carried out. This is what Goodseal did.

        1. State v. Underwood

        1. Defendant, a convicted felon, was in a fight and when the person he was fighting went for a gun he grabbed a gun and shot and killed him

        2. Court stated that under the state statute says any felony is sufficient to support a charge of felony murder if a causal relation exists but the court has held that the collateral felony must be inherently dangerous to human life

        3. They say possession of a firearm is not inherently dangerous to human life

        4. They note that once the use of the firearm begins, a separate crime is committed e.g., assault with a deadly weapon, assuming the required intent is present, aggravated assault is an integral part of the homicide and felony murder cannot be based thereon (independent felony/merger rule)

        5. Further injustice may occur in felon murder cases because the charge of felony murder may strip an accused of the normal defenses possible in a murder case such as: mistake that he was actually a felon or self defense

        1. Consider the following aspects of the opinions in Goodseal and Underwood

        1. Merger

        1. In a case relied on in Goodseal the court said where the felony on which application of the rule is predicated directly results in or is an element of the homicide, the assault becomes merged with the killing and cannot be relied upon as an ingredient of felony murder, if the rule were to be applied otherwise, there could be no such thing as any lower degree of homicide than murder in the first degree

        2. The absence of some merger doctrine thus would erase altogether the distinctions traditionally drawn in grading serious homicides, no court has refused to apply a version of the merger doctrine in this context

        3. The disputed issue is whether application of the felony murder rule can be predicated on a felonious assault, in such a case, proof of intent to kill plus the resulting death could independently supply the culpability needed for a murder conviction; the prosecutor would not have to rely on the felon murder theory, however, in most jurisdictions, intent to injure or recklessness concerning the risk of injury is sufficient to establish the mens rea for some form of felonious assault

        1. Determination of inherent dangerousness – Goodseal said this issue is to be examined in light of the circumstances and Underwood said it is to be examined in the abstract

        2. Lesser Included Offense Instruction – U.S. held in the context of a prosecution for capital murder, that the refusal to give a lesser included offense charge was an error of constitutional dimension but it restricted its holding to capital cases (reason being a jury might not think a defendant is guilty but does not deserve such an extreme punishment so they acquit, or, on the other hand they may think he is guilty to some lesser degree but convict because they think he should be punished)

        3. Defenses and Mitigations – Underwood says “heat of passion” mitigation would not be open to a person charged with felony murder and adds that it would follow also that self defense would not be available


        1. Distribution of Controlled Substances – some jurisdictions have used the felony murder rule to convict persons who distributed a controlled substance that killed someone (based on idea that felony is inherently dangerous to human life)

        2. Attempted Felony Murder – In a FL case the court held because the attempt occurs during the commission of a felony, the law, as under the felony murder doctrine, presumes the existence of the specific intent required to prove attempt

        1. Rape 268-323

        2. State v. Rusk

          1. Facts: Rusk raped Pat. He put his hand on her throat and she submitted. She contends that his threat of force forced her to submit to sex.

          2. Rule: Lack of consent to sexual intercourse may be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm.


        I. Traditional Elements

        a. force

        b. non-consent

        c. Resistance

        d. Male v. Female intercourse

        e. Non-spouse


        State v. Rusk

        2 elements of 2nd degree rape in MD è 1) actual or constructive force; 2) lack of consent

        - element of resistance also plays a role in this case. Under Hazel rules, Court highlights that victim may not resist due to fear of bodily injury. Hence, if resistance is not shown, victim can instead show reasonable fear of death or harm.


        2 roles that resistance is playing: 1) resistance or fear of resistance shows non-consent.

        2) shows force?


        Reform of the Resistance requirement:

        • why bad?

          • Exposes victims to increased risk of physical harm.

          • Not god proxy for consent: many women demonstrate the frozen fright response. . . . doesn’t mean they are consenting.

          • By imposing a “duty” to resist, the law puts the crime victim rather than the perpetrator on trial.

        • Reformers have pointed out that victims of other crimes, such as robbery, kidnapping, and assault, aren’t required to resist physically even though nonconsent is also an element of those crimes.

        • Current status of resistance requirement:

          • Only Alabama still requires physical force that overcomes earnest resistance.

          • Most jurisdictions have relaxed the requirement.

          • However, in most jurisdictions some physical resistance is required.


        1. M.T.S. –

          1. Facts: 15 year old girl and 17 year old male engaged in consensual “heavy petting” as they had done several times before. Boy penetrated vagina with his penis she slapped him and he got up got dressed and left the room.

          2. Rule: The court held that permission could be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances.

          3. Reasoning: The court found that the record reasonably supported the trial court's conclusion that the victim had not expressed consent to the act of intercourse, either through her words or actions.

          4. Rule: The court held that the element of physical force was satisfied by any use of force in the absence of affirmative and freely given permission to the act of sexual penetration


        Grading: MPC has a grading system for rape, but there is little agreement about what the distinctions should be.

        • one approach has been to dived sexual assault into categories of sexual assault and aggravated sexual assault.



        Hazel recognized that the same kind of evidence (showing resistance) may be used in establishing both force and non-consent, particularly when a threat rather than actual force is involved.

          • State v. Smith --- appeal of a conviction for sexual assault in the first degree.

            1. Facts: Smith brought a woman to his home where he threatened her with physical violence until she submitted out of fear to sexual intercourse.

            2. Rule: Sexual assault requires only a general intent to perform the physical acts constituting the crime, so an unreasonable belief that the victim has consented will not negate the mens rea element of the crime.


        II. Expanding crimes of unwanted sex

        a. psychological coercion

        b. fraud

        c. other pressures/inducements

        • Psychological Coercion – telling girl she would be returned to detention if she didn’t

        • Extortion: can not threaten even non-physical harm for sex.

          • But for criminal sanction: msut not be a trivial threat. Police officer who convinces a woman to have sex with him in order to avoid a ticket.

          • Also can’t be part of a bargain: man who threatens to withdraw financial support from his unemployed girlfriend unless she has sex with him. This threat has some gravity: but is excluded from liability because its part of the process of bargaining.


        Competence to Consent and Intoxication:

        • sexual intercourse with a person who is incompetent to consent is a form of rape.

          • Requires no force beyond what is required to achieve penetration.

          • Incompetent

            • Unconscious

            • Asleep

            • Lack of mental capacity to consent.

            • Intoxication:

              • Difficult to assess the level of intox required for rape.

              • MPC resolves this by saying that liability is limited to cases where the woman is so drunk that she is unconscious or where he “substantially impaired her power to appraise or control her conduct by administering without her knowledge intoxicants for the purpose of preventing resistance.

              • Under MPC no liability where woman is voluntarily drunk, but conscious.


        III. Effect of Mistake

        Statutory Rape:

        • Garnett v. State

          • Facts: Garnett, a 22 year old retarded man, was convicted under a statutory rape law after he had consensual sex with a 13 year old girl.

          • Rule: where a statutory rape law does not authorize a defense of reasonable mistake of age, no such defense is available.


        IV Actus reus elements è 1) man against woman; 2) must be intercourse


        Commonwealth v. Mlinarich è man rapes 14 year old threatening to send her back to detention home if she didn’t go along. Court rule that Rape needs forcible compulsion which is not found in the threat to do non-violent acts.


        United States v. Hicks è court found that threat of 3rd person going to the brig was enough of a threat to be forcible rape.


        Common law è very unwilling to find that fraud to force sex cannot be held as rape.


        Should the question be did she reasonably think she was consenting or should it be did he reasonably think she was consenting?




        a. rape 213.1(1)

        b. Gross sexual imposition 213.1(2)

        c. DSI by force/imposition 213.2

        d. Corruption of minors and seduction 213.3

        e. sexual assault 213.4






        Minimum Conduct

        1. The early law

          1. In both England (by decision) and America (by statute), it had become settled by the mid-1830s that an attempt to commit any offense was punishable as a separate crime

          2. The crime of attempt punishes conduct preliminary to other crimes, including those that themselves address inchoate (just begun, not complete) behavior


        1. The Required Conduct

          1. The importance of the act requirement

              1. The law is clear that conduct is an essential component of any crime, it has long been established that criminal liability may not be premised on a mere intention or bare desire to do wrong, criminal liability is reserved for behavior

              2. Adherence to a conduct requirement does not limit the penal law to the redress of positive acts rather the law can proscribe a failure to act; it may even punish possession

          2. Jeffries and Stephan - offer a short rationale for the act requirement saying the significance of the act requirement should not be understated

              1. It serves a critical evidentiary function in corroborating other proof going to the existence of evil intent

              2. Serves an equally important function in differentiating daydreams from fixed intentions

              3. Preserves the liberty of the individual citizen by constraining penal liability within a tolerable sphere

          3. Minimum conduct and the law of attempt

              1. Although minimum conduct requirements are a matter of pervasive importance in the penal law, the issue has received doctrinal attention primarily in the law of attempt

              2. Attempt is defined chiefly by reference to the object offense thus, there can be no attempt standing alone

              3. In each instance, the actor take steps toward completion of the underlying crime

              4. The line between preparation and attempt marks the point at which the actor’s conduct triggers criminal liability

              5. For present purposes, one should assume that the state of mind required for attempt is purpose

              6. The question is whether actions toward fulfilling that purpose were sufficient to support criminal liability

          4. People v. Bowen and Rouse

              1. Bowen and Rouse with two women went to the home of an old lady whom Rouse had done work for, a neighbor thought their intentions ill and called the police, when the police arrived they found the girls talking to the lady and the lady’s room in disarray, when they sat down Bowen and Rouse to question them they later found jewelry in those spots

              2. Attempted larceny requires a felonious intent to commit larceny and an overt act going beyond mere preparation towards the commission of the crime

              3. Court found that mere coming into the house was not an overt act (the only act mentioned in the charge) and thus reverses and remands for a new trial

              4. An overt act is one that can have no other purpose or apparent result than the commission of the principal crime

              5. At the time defendants entered the house their acts were entirely ambiguous and equivocal, it is the acts thereafter allegedly committed in the house (but to which there is no finding from the jury) that were neither ambiguous nor equivocal

              6. Court is convinced that the function of the overt act is not to corroborate but rather to demonstrate that the defendant has converted resolution into action

          5. Proximity Tests

              1. The drafters of the MPC referred to the distinction between preparation and attempt as the most difficult problem in defining criminal attempt

              2. Many courts have emphasized the physical proximity (actor’s separation from criminal objective by time, distance, necessary steps to be taken, etc.) to the actor’s conduct to the completed offense

              3. Variations of the proximity doctrine reflect the view that the essential purpose of the law of attempt is to punish dangerous conduct

              4. Only where the anticipatory conduct comes dangerously close to accomplishing the harm ultimately feared is there sufficient justification for punishment of the actor


              1. Some tests:

                1. Last proximate act – those who have completed last proximate act are guilty of attempt (assuming they are unsuccessful in completing the crime)

                2. Very Near (Rizzo) – no attempt for person searching for the person he wants to rob

                3. Dangerous proximity (Holmes) considers:

                  1. Gravity of harm threatened

                  2. Degree of apprehension aroused

                  3. Probability of completion

                  4. Note: Only where the anticipatory conduct comes dangerously close to accomplishing the harm ultimately feared is there sufficient justification for punishment of the actor, even though best efforts may have been made to commit the completed crime.

          1. Res ipsa loquitur (Speaks for itself)

              1. Different approach first suggested by Justice Salmond of New Zealand

              2. Unlike proximity doctrines, inquiry looks to what the actor has already done rather than to what remains to be done, the object of this inquiry is not to assess the dangerousness of the anticipatory conduct itself, but to focus on the dangerousness of the actor who engaged in it

              3. The premise is that the individual who has demonstrated resolute commitment to a criminal endeavor poses a threat to the social order and therefore may properly be subject to criminal punishment

              4. The difficulty with this view is that it calls for prediction and the possibility of error seems great

              5. The res ipsa test responds to these concerns in two ways:

                1. The requirement that the actor’s criminal purpose be evident on the face of the conduct precludes criminal liability bases solely on confessions or other representations of purpose

                2. Justified on the closely related ground of ensuring adequate evidence of the actor’s commitment to the criminal purpose

          2. The MPC

              1. MPC standard for distinguishing preparation from attempt is stated in § 5.01(1)(c), conviction for attempt is allowed where the actor engages in an act or omission constituting a substantial step (not last proximate act) in a course of conduct planned to culminate in his commission of the crime

              2. Significantly broadens the liability for attempt, the fact that actor has not come dangerously close to completing the crime would not bar conviction, provided that the completed conduct constitutes a substantial step strongly corroborative of criminal purpose (this seems inconsistent because MPC usually seems to favor defendant more than the common law, example: rejects strict liability, not the case here; it is consistent with its own approach though in that it focuses on individualized assessments)

              3. Rationale for MPC conduct requirement same as for res ipsa test, both seek to avoid speculative and undisciplined inquiry into state of mind, both seek to ensure existence and firmness of actor’s criminal purpose are substantiated by objectively demonstrable conduct

              4. Unlike res ipsa however, MPC does not demand actor’s conduct be in itself sufficient evidence of criminal purpose, instead, it demands only that the actor’s conduct strongly corroborate the existence of a criminal purpose that may be shown by other means

              5. In essence, MPC recasts the conceptual focus of the res ipsa test into a more manageable standard for imposing liability

          3. Testing Cases

              1. United States v. Harper

                1. Several men caught in a car, with guns, latex gloves, and a stolen ATM card next to an ATM where one had used the card to create a ‘bill trap’, thus, it was obvious the intended to rob the technician when he arrived to fix the machine

                2. Convicted of attempted bank robbery but the appeals court overturned saying there was sufficient evidence to find that defendants intended to rob the bank but it concluded that they had not taken a “substantial step” towards commission of the offense (not at the point where they can no longer turn back)

              2. Moore: walking toward the bank armed was attempt

              3. Buffington: two men stood nearby and one went inside to check out the bank. They were armed. No attempt because no substantial step.

          4. Conduct requirements for other offenses

              1. People v. Adami

                1. Defendant under investigation for sale of narcotics paid an undercover agent to kill his wife

                2. Court refused to proceed on attempted murder

                3. Court said the defect was that since neither the defendant nor the undercover agent had taken direct steps coming dangerously close to the commission of the contemplated crime, there was at most mere preparation, not a criminal attempt; apparently, the defendant’s liability for attempt required actual participation by the person solicited to commit the crime

              2. Solicitation as an independent offense - The difficulty of securing conviction for attempt in this situation, however, has led to the fairly widespread enactment of independent crimes of criminal solicitation

              3. 5.02 of MPC: a person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another to engage in specific conduct which would constitute such crime or an attempt to commit such crime.

              4. Footnote on conspiracy

                1. A third inchoate offense is criminal conspiracy, conspiracy is defined as an agreement between two or more person to do an unlawful act or to do a lawful act by an unlawful means

                2. The question therefore arises whether the act of agreement is a sufficient basis in conduct to support the imposition of penal sanctions

              5. Completed Offenses

                1. Some crimes require that the actor’s conduct be complete in the sense that it actually causes the ultimate harm sought to be prevented by law, murder is the prime example; many crimes, however, do not require fully completed harm as a condition of liability, a false statement may be punished as perjury, even though the trial outcome is not affected, etc.

                2. In all of these cases, the law proscribes conduct preliminary to the harm ultimately feared, the issue therefore arises: How early in a course of conduct leading to actual harm should liability attach?

                3. The issue is most obvious in offenses, such as burglary, that punish some form of inchoate wrongdoing as a completed crime

                4. Conceptually, this is the same issue as the sufficiency of the actor’s conduct to support a finding of criminal purpose in the law of attempt, and in light of the conflicting resolutions of this issue in the law of attempt, it should not be surprising that the courts have also made differing interpretations of the minimum conduct requirements

              6. Possession

                1. Possession is a common basis for criminal liability, crimes of possession allow police to intervene in a course of criminal conduct at an earlier stage than might otherwise be possible

                2. Difficulty arises, however, when the concept of possession is stretched to include borderline situations, often the result is called constructive possession, presumably to indicate that liability is to be imposed even though actual possession or exclusive control cannot be proved

                3. Obviously, such problems are resolved, at least in part, if the courts stick to actual, personal dominion and control and do not venture into the uncertainties of so-called constructive possession

              7. Note - One solution to the problem of defining what is enough action to constitute an attempt would be to move the line back toward “bare desire” by making these prepatory actions a crime, but you raise the possibility of punishing too early and infringing on people’s liberty


        1. Mens Rea

          1. Doctrinal Rules

              1. Common Law

              2. Thomas Approach

              3. MPC

          2. People v. Thomas

              1. Defendant went to former girlfriends place after she told him she had been raped, he went to alleged rapists apartment with a pistol, told him he was a cop, and brought him down to the girls apartment, the man then tried to flee and the defendant gave chase, shooting him twice

              2. Attempted reckless manslaughter requires that the accused have the intent to commit the underlying offense of reckless manslaughter, the intent to commit the underlying offense is the intent to engage in and complete the risk producing act or conduct, it does not include an intent that death occur even though the underlying crime, reckless manslaughter, has death as an essential element

              3. The crime of attempted reckless manslaughter also requires that the risk producing act or conduct be commenced and sufficiently pursued to constitute a substantial step toward the commission of the offense

              4. Culpability for criminal attempt rests primarily upon the actor’s purpose to cause harmful consequences and that punishment is justified where the actor intends harm because there exists a high likelihood that his unspent intent will flower into harmful conduct at any moment

          3. The traditional view

              1. The result in Thomas is unusual (specific intent not required for attempt), the traditional view is that attempt requires a specific intent to do the entire evil thing (specific intent is required for attempt)

              2. Thacker v. Commonwealth

                1. Man was drunk and tried to shoot out a light in a woman’s tent and almost hit her and her child

                2. Defendant was convicted of attempted murder, but state supreme court reversed

                3. In its discussion the court cited some scholarly works, saying the act must be done with the specific intent to commit a particular crime

                4. To commit murder, one need not intend to take life (extreme recklessness disregard for life), but to be guilty of an attempt to murder, he must so intend

                5. We have seen that the unintended taking of life may be murder, yet there can be no attempt to murder without the specific intent to commit it

                6. While it might possibly be said that the firing of the shot at the woman’s tent was an act done towards the commission of the offense charged, the evidence falls far short of proving that it was fired with the intent to murder her

          4. The MPC

              1. MPC accepts the Thacker result, but departs from the common law position that a specific intent is required as to all elements of the offense attempted

              2. The MPC means to requires specific intent to engage in the conduct and result elements of the object offense, but the mens rea for the circumstance elements of the attempt would be the same as would be required were the offense completed

              3. The MPC does, however, add an offense designed to cover the Thomas and Thacker situations: Section 211.2 (recklessly endangering another person)


                1. “a person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.”

          1. Rationale for Specific Intent Requirement

              1. One frequently given reason to require a specific intent for attempts was described by Holmes, illustrated first in a passage by Smith:

              2. Smith: When a man attempts to do something he endeavoring or trying to do it, recklessness and negligence are incompatible with desire and intention; therefore, in a crime which by definition may be committed recklessly or negligently, it is impossible to conceive of an attempt

          2. Circumstance Elements

              1. Smith has argued that no special policy of law of attempt should displace the mens rea otherwise required for the completed offense, he believes that the mens rea as to circumstance elements should be the same for the attempt as it would be for the completed offense

              2. An attempt is so essentially connected with consequences that the only essential intention is an intention to bring about those consequences; and if recklessness, or negligence, or even blameless inadvertence with respect to the remaining constituents of the crime will suffice for the substantive crime, it will suffice also for the attempt

              3. Where D intends to produce a consequence which in the actual existing circumstances will constitute the actus reus of a substantive crime, and he does so with the mens rea of that same crime, is there any reason why we should not be convicted of an attempt if he fails to accomplish his intention? It is submitted that there is not

          3. Completed Conduct but no Result

              1. Consider the following argument: The law of attempt proceeds on the premise that the deterrent or social control functions of the criminal law require punishment of those who come dangerously close to the commission of crime or who manifest a dangerous propensity to engage in criminal behavior

              2. Consider also the arguments in favor or requiring a specific intent for attempts, Holmes contended that specific intent is required in attempt offenses in order to show that the defendant was likely to engage in additional conduct that would complete the crime

              3. If a specific intent is to be required in the Thomas situation, therefore, some other rationale must be advanced; one possibility is that the requirement of specific intent serves the function of protecting the innocent from unwarranted conviction

              4. However, this interest, is of serious concern only when the defendant’s conduct is ambiguous and there is genuine doubt whether the defendant actually presented the dangers at which the law of attempt is aimed

              5. How then, can one explain the traditional view to the contrary and its endorsement in the MPC?

          4. Notes on attempt

              1. Specific intent required for attempt because it seems counterintuitive to say someone attempted a crime but had no intent to do so

              2. If specific intent was not required then anyone driving recklessly could be convicted of attempted murder

              3. Also, for culpability and retributive purposes if seems fair, a person who does not complete a crime is less blameworthy


        Views of attempt

        Conduct Circumstances Results


        Common Law
        Specific Intent
        Specific Intent
        Specific Intent
        Specific Intent
        Same as the object offense
        Same as the object offense
        Same mens rea as the object offense (still SL for statutory rape)
        Purpose and Belief




        1. cause death of human being

          1. Common Law – Thacker can not be guilty of attempted homicide

          2. Thomas – Thacker could be guilty

          3. MPC – Thacker could not be guilty

        2. set fire to ship (Faulkner – no specific intent)

          1. Common Law – not guilty

          2. Thomas – could be guilty

          3. MPC – not guilty


        1. cause another to take noxious thing (Cunningham – no specific intent)

        2. break and enter dwelling at night (no mens rea required, strict liability) – he believes it is not night and stands outside the window

        3. restrain child without parental consent - attempted kidnapping but mistake of fact

          1. Common Law – can not be guilty, no specific intent, an honest mistake is a defense

          2. Thomas –

          3. MPC –

        4. intercourse with underage female (strict liability, mistake not a defense)

        5. intercourse without consent (general intent crime)

          1. Common Law – can be guilty if he is reckless or negligence about her consent, if they do not have sex he is not guilty of attempt because specific intent is now required

          2. Thomas – guilty

          3. MPC – guilty, applies same mens rea as object offense

        6. Majority rule for intoxication, it can not negate general intent but can specific intent, you are deemed to have been aware of the risk even if you were not (reckless)

        7. If a drunk man goes into a room to have sex with a woman but is unsuccessful, he is not guilty of attempt under common law because he does not have the specific intent because he was intoxicated

        8. If he is successful, he is guilty of rape because rape only requires recklessness which, because he is drunk, he is assumed to have

        9. Man shoots at light and hits tent with people, he is not guilty of attempted murder under common law because he did not have specific intent

        10. Thomas would have convicted him because he was aware of the extreme risk, he was reckless

        11. Burglar has canvassed a house and believes it to be empty, he enters and finds people in the bedroom and runs away, woman in the room has heart attack

        12. Not guilty of attempted murder because no specific intent (at common law)

        13. If someone died he could be convicted for felony murder which is based on strict liability

        14. In a Thomas jurisdiction he would be guilty of attempted felony murder because the mens rea required is that of the completed offense (strict liability, no mens rea required)


        1. Impossibility

          1. People v. Dlugash

              1. Man shot victim in the face several times after his companion had already shot him several times

              2. Court held that defendant is guilty of attempted murder

              3. Court discusses the traditional approach of legal and factual impossibility but uses the MPC approach

              4. MPC eliminates the defense of impossibility (factual or legal) in almost all cases, under the MPC to constitute an attempt it is only necessary that the result intended by the actor constitute a crime

              5. However, the MPC suggests a fundamental change to shift the analysis to the actor’s mental frame of reference and away from undue dependence upon external considerations; the basic premise is that what was in the actor’s own mind should be the standard for determining his dangerousness to society and hence, his liability for attempted criminal conduct (focus on culpability)

          2. (Ordinary) Legal and Factual Impossibility (traditional approach)

              1. Legal impossibility: (a defense) Where the act if completed would not be criminal (Example: no liability for attempt to bribe a juror where person bribed was not, in fact, a juror)

              2. Factual impossibility: (not a defense) Where the basic or substantive crime they are trying to complete is impossible to complete, simply because of some physical or factual condition unknown to the defendant, a situation which is usually described as a ‘factual impossibility’ (Example: man shot into room in which his target usually slept and hit her pillow, liable for attempted murder even though she was not there)

              3. Truth be told there is no difference based on the above tests, it is not a meaningful distinction, however, some possibilities

                1. Maybe the distinction is based on the seriousness of the attempted crime, the culpability of the conduct, and who we want to punish and who we want to let go; or

                2. Factual impossibility acts come much closer to completion than do legal impossibility acts;

                3. Finally, it may be a distinction between entrapment like circumstances and more attempt like circumstances


        Legal Impossibility (not guilty) Factual Impossibility (guilty)


        Shoot stuffed deer
        Shoot empty bed
        Receive non-stolen property
        Pick empty pocked
        Bribe non-juror
        Abortion on non-pregnant woman
        Import domestic lace
        Rape of a dead woman

        * All would be guilty under the MPC approach because they were attempting to do things the law defines as criminal


          1. Inherent impossibility

              1. Plane case – man puts a hex on a plane to make it crash, he is not guilty because it is inherently so unlikely that it will be successful

              2. Inmate cases - Several cases where inmates who had AIDs were convicted of attempted murder for spitting and spraying blood based on the idea the average person may view it as a viable attempt even though it is extremely scientifically unlikely

          2. An alternative common law approach (Perkins and Boyce)

              1. Some have argued that in at least some of the situations illustrated in Dlugash, the actor properly can be viewed as having passed beyond preparation and completed an attempt before any impossibility problem arose

              2. Other fact patterns should be analyzed differently: Deeply entrenched in the common law is the principle that conviction of crime cannot be based upon intent alone, this raises the question of ‘inconsistent intents.’ At times one has two different intents which seem only one to him but are so inconsistent that only one is possible of achievement, in such a situation the law regards one intent as primary and the other as secondary and only the primary intent controls (Example: Man intends to steal an umbrella but takes his own by mistake, his primary intent is to take the umbrella he actually seizes and hence there is nothing wrongful in what is actually done but only in his secondary, inconsistent intent is he wrongful)

              3. Based on the above, they would exculpate everyone in the scenarios listed in the impossibility chart, again, really no distinction

          3. MPC

              1. MPC approach to impossibility cases can be extracted from three separate sources:

                1. § 5.01(1) is based on the premise that criminality should be judged from the circumstances as the defendant viewed them (thus, in umbrella example, man would be guilty)

                2. § 5.05(2) and 2.12 permit the grade of the offense to be reduced, or in extreme cases the prosecution to be dismissed, when the actor’s conduct “is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger or where the actor’s conduct did not actually cause or threaten the harm or evil sought to be prevented by the law

                3. Certain substantive offenses, most particularly § 223.6 (receiving stolen property), have been defined so as to eliminate the possibility of acquittal on the basis of an impossibility argument

              2. These results are defended on the rationale that most defendants in impossibility situations have demonstrated their readiness to violate the criminal law, have manifested the required culpability, and have posed sufficient social danger to justify the invocation of criminal sanctions

          4. The importance of the actus reus

              1. Ecker argued that it is important to retain the impossibility defense in certain situations because it reinforces the act requirement, he observed that criminal convictions based on equivocal conduct create an unacceptable risk of extending the criminal law to innocent behavior

              2. He argued that the actual existence of required actus reus elements of crime, especially circumstance elements, provides important corroboration of criminal intent that would be lost if the impossibility defense were totally abandoned

              3. He criticizes the MPC requirement that act corroborate the mens rea because it only applies to cases in the preparation-attempt continuum but where a defendant does an act which would constitute a crime under the circumstances as he thought them to be, he is guilty of attempt

              4. MPC defended on following grounds

                1. Unlikely person will be prosecuted for harmless behavior solely based on admissions

                2. Requirement of corroboration in the context of conduct may lead to the acquittal of persons whose behavior alone is insufficiently corroborative, but whose admissions provide a sufficient case for guilt

                3. Admission may be thought to be a more reliable indicator of guilt in a case of completed conduct than in a case where the actor has yet to complete proposed behavior

          5. True legal impossibility

              1. This is one variation of the impossibility situation on which everyone agrees

              2. A defendant can’t be convicted of an attempt if no crime has been committed, it is still necessary that the result intended or desired by the actor constitute a crime

              3. Man smokes a joint thinking it is illegal but marijuana is not illegal in that jurisdiction, he can not be convicted, he is mistaken about the law not the facts (usually mistake of fact can help you but not mistake of law), law does not care what he believes the facts to be because he does not know the law, if the act is not illegal he is not guilty; it is not illegal to want or think you are doing something illegal, we do no punish thought

          6. Completed Offenses: Bronston v. United States

              1. Bronston was President of a company that petitioned for an arrangement with creditors under the bankruptcy act

              2. His answers on the stand were literally truthful but were unresponsive in that he inferred (by unresponsively addressing his answer to the companies assets) from his answer that he did not have personal accounts in Swiss banks when he actually did

              3. US saw no reason why Congress would intend the drastic sanction of perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by an alert counsel

              4. It is the lawyer’s responsibility to flush out the whole truth from the witness

              5. It is no answer to say that here the jury found that petitioner intended to mislead his examiner, a jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner

              6. President hypo: as long as he believes sexual relations means only sexual intercourse it does not matter what everyone else thinks it is, he lacks the necessary mens rea under the MPC (based on facts as he believes them to be); also if the consentual relationship is immaterial to the case that is the subject of the testimony, it is a defense based on lack of materiality; also, he is not guilty of attempt because he lacks the specific intent; it is true legal impossibility (based only on facts not thought) because the facts as he believed them to be where not criminal

              7. Perjury is so heavily driven by attempt that the conduct itself is often consistent with law abiding behavior or unintentional, Bronston court says the solution is not perjury convictions it is good lawyering


        1. Abandonment

          1. Ross v. Mississippi

              1. Ross went to a trailer park and after asking for directions forced a woman into her trailer and told her to strip at gunpoint, after she told him about her daughter he changed his mind and left

              2. Court held that the evidence did not sufficiently raise a fact question as to whether he attempted rape, the evidence uncontrovertibly shows that he did not, but instead abandoned the attempt

              3. Court says attempt consists of three things:

                1. An intent to commit a particular crime

                2. A direct ineffectual act done toward its commission

                3. Failure to consummate its commission

              4. MS attempt statute requires that the third element, failure to consummate, result from extraneous causes, thus, a defendant’s voluntary abandonment may negate a crime of attempt

          2. The traditional position on abandonment (common law)

              1. Analytically, Ross presents two distinct questions:

                1. Whether the defendant progressed sufficiently beyond “mere preparation” to attempted rape

                2. Whether, if he did (and did so with the required specific intent), he is nevertheless entitled to acquittal if he “voluntarily” abandoned his criminal plan

              2. It has been argued that a voluntary renunciation of criminal intentions should be regarded as a praiseworthy act that erases the defendant’s original blameworthiness and therefore removes the ethical predicate for criminal liability; others have claimed that recognition of an abandonment defense would offer an incentive to inchoate offenders to desist from their plan to commit a criminal offense

          3. Common Law

              1. No abandonment defense once line of attempt has been crossed (line at overt act)

              2. Common law requires specific purpose in terms of mens rea and in terms of actus reus has a higher act requirement (requires actor to go pretty far towards proceeding past the line of the actual offense to constitute attempt, culpability line close to actual offense)

              3. In terms of grading, abandonment is still encouraged by common law because attempt is less harshly punished than the actual offense

          4. MPC

              1. Abandonment defense allowed even after line of attempt has been crossed

              2. § 5.01(4) covers abandonment, allows abandonment defense for conduct that would constitute an attempt under subsection (1)(b) and (c) but not (a)

              3. Says that it is an affirmative defense that he abandoned his effort to commit the crime under circumstances manifesting a complete and voluntary (two separate requirements) renunciation of his criminal purpose

              4. Stricter in terms of actus reus and mens rea than the common law

              5. Requires merely a substantial step for an attempt conviction (draws the line further back than the common law), thus, there is a greater risk of punishing someone who is not presenting a real threat, however, allowing exculpation for a complete and voluntary renunciation of the act compensates for this

              6. Allows abandonment defense for when there is an unachieved result (even if you have completed all your conduct)

              7. In terms of grading, punishes attempt as severely as someone who completes the crime (again, stricter than the common law) so once you cross the line into attempt you might as well go through with it, so grading does not provide much incentive to abandon once attempt line is crossed, again, however, if reason to quit is complete and voluntary there is a defense




        1. Defense Against Aggression

          1. People v. Goetz

              1. Goetz, carrying a pistol, got on a subway when four youths allegedly tried to rob him, he pulled out his pistol and shot all four

              2. Court sites NY penal law § 35.15(1) a person may use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person and § 35.15(2) a person may not use deadly physical force upon another person unless (a) he reasonably believes that such other person is using or about to use deadly physical force or (b) he reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy, or robbery

              3. MPC – with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime; accordingly, under MPC § 3.04(2)(b), a defendant charged with murder (or attempted murder) need only show that he believed that the use of deadly force was necessary to protect himself against death, serious bodily injury, kidnapping, or forcible sexual intercourse to prevail in a self-defense claim; if the defendant’s belief is was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent

              4. New York did not follow the MPC equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all

              5. The drafters of the NY statute inserted the word “reasonably” not evince a legislative intent to conform to the subjective standard of the MPC rather they wanted to inject an objective element

              6. This objective element however, will not require courts to make a determination of reasonableness without regard to the actual circumstances of a particular incident and the background and relevant characteristics of a particular actor, rather these considerations are integral in this determination

          2. Introduction

              1. In general, one who is free from fault may use force to defend his or her person or property against harm threatened by the unlawful act of another if:

                1. The person cannot avoid the threatened harm without using defensive force or giving up some right or privilege, and

                2. The force used for this purpose is not excessive in view of the harm which it is intended to prevent

              2. The common law and many codes recognize several situations in which the use of deadly force might be privileged

          3. Self-defense - All jurisdictions and commentators agree that an actor’s interest in preserving his or her life or protecting himself or herself from serious bodily harm justifies the use of deadly force to repel an aggressor; homicide is the most threatening crime to society so the doctrine of self-defense will generally be defined narrowly to avoid sanctioning homicide

          4. Common Law - four elements

              1. Reasonably believes deadly force

                1. MPC and CL interpretations of reasonable

                2. MPC and CL approaches to mistake

              2. is necessary

                1. Retreat Rule

                2. Castle exception

              3. to prevent death/grievous bodily injury

                1. Proportionality

              4. from unlawful aggression

                1. Defendant cannot be aggressor in that he can not initiate with deadly force, if he initiates with less than deadly force and other party responds with deadly force, he has the right to use deadly force in his defense

          5. Prevention of Escape – Although some states continue to authorize private citizens to use deadly force to prevent the escape of a person believed to have committed a violent felony, the modern trend is to permit deadly force to be used in such circumstances only by law-enforcement officers and those aiding them

          6. Defense of Habitation – The trend appears to be in the direction of reaffirming a distinct “defense of habitation” which is available even where the fact-finder concludes that deadly force was not reasonably necessary to defend life (Colorado’s make my day statute)

          7. MPC – 3.04(1), 3.04(2)(b) [not 3.04(2)(b)(ii)(2)], and 3.09(2)

              1. Denies right of self defense if defendant is aggressor (who aggressed with deadly force)

              2. If defendant communicates withdrawal, right of self defense is regained

              3. Differences between MPC and CL

                1. Adopts the retreat rule (CL does not)

                2. Incorporates imperfect defense – deadly force is justified if defendant believes it is, no reasonable requirement but if defendant is at fault in the belief he is subject to being a crime that only requires that level of culpability (i.e. if he is negligent in belief he is subject to prosecution for negligent homicide, if he is reckless he is subject to reckless manslaughter; note: defendant has mens rea in that he intends to kill, the question is whether it is justified); minority of CL jurisdictions do not incorporate imperfect defense


        1. Requirement of Retreat

          1. The Retreat Rule

              1. Dispute regarding the rule discussed in State v. Abbott

                1. Other jurisdictions are closely divided upon the retreat doctrine the MPC embraces the retreat rule while acknowledging that on numerical balance a majority of precedents oppose it

                2. The issue of retreat arises only if the defendant resorted to deadly force, it is deadly force which is not justifiable when an opportunity to retreat is at hand, hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense

                3. The MPC states, deadly force is not justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating (emphasize “knows” and “with complete safety”)

                4. The question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered

          2. The Wisdom of Rules

              1. The majority of states reject the retreat rule, however, they also reject the right to stand one’s ground; instead, most endorse the U.S. view in Brown v. United States, that the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt

              2. In some jurisdictions that adopt the retreat rule, if retreat is available and you don’t use it you lose the self-defense justification

              3. The typical formulation of the retreat rule has been criticized because of its inflexibility

          3. The “Castle” Exception

              1. Even jurisdictions that have adopted the requirement of retreat recognize an exception for a person attacked in his or her own home (some different interpretations of what constitutes a “home”)

              2. The MPC, which requires retreat if it can be accomplished with complete safety incorporates the traditional exception and does not require retreat from a person’s dwelling or place of work, unless the actor was the initial aggressor or is assailed in his place of work by another person who also works there

          4. Notes on the Meaning of Reasonable Belief

              1. Objective Reasonableness

                1. In Goetz the court rejected the “subjective” standard, according to the court the defendant’s belief must comport with an “objective’ standard of reasonableness; under this objective inquiry, jurors must decide whether the defendant’s beliefs would be held by a reasonable person in the defendant’s situation

                2. Race Factor

                  1. The courts description of the defendant’s situation might be interpreted to include inferences about a person’s dangerousness arising from his race

                  2. The question whether a reasonable person considers race in assessing the danger that four youths on the subway might represent goes to the heart of what the law demands of us

                  3. Though there is no settled law on this issue, the standard of reasonableness may require us to surmount racially based intuitions of danger (require us to be better than we are)

              2. Subjective Reasonableness

                1. Some states apply a subjective standard of reasonableness and judge from the standpoint of the very defendant concerned

                2. Under the subjective standard the issue is not whether the circumstances attending the accused’s use of force would be sufficient to create in the mind of a reasonable and prudent person the belief that the use of force is necessary, but rather whether the circumstances are sufficient to induce in the accused an honest and reasonable belief that he must use force to defend against imminent harm

                3. The more circumstances that are considered in terms of the situation under question, the more subjective the “reasonable” standard becomes

          5. Notes on the Effect of Mistake in Claims of Self-defense

              1. Introduction - As Goetz reflects, courts assume that juries are capable of predicting what the alleged attacker ultimately would have done had the defendant not resisted; assuming that a jury engages in this predictive exercise and concludes that the defendant’s belief in the need to use deadly force was wrong, the question arises: Under what circumstances, if any, should such mistaken belief support a self-defense claim?

              2. Reasonable Mistake – The common law and modern statutes concur in the following view: an honest and reasonable belief in the existence of justificatory facts is ordinarily a defense, even if the belief turns to have been mistaken

              3. Mistake and the MPC

                1. The MPC endorses the doctrine of “imperfect justification”

                2. Under the doctrine, an unreasonable belief in the existence of justificatory facts negates the mens rea required for murder; the unreasonable mistake, however, provides no defense to the lesser charge of manslaughter, the effect is that unreasonable mistake is a mitigation but not a complete defense

                3. A person who believes, however unreasonably, in the existence of justificatory facts has a defense to any crime requiring a culpability of purpose or knowledge; for a crime requiring recklessness, the mistaken belief must be not only sincere but also non-reckless, and for a crime requiring only negligence, the mistaken belief is exculpatory if non-negligent


                1. The MPC treatment of mistaken belief in the existence of justificatory facts is an essential feature of its general commitment to the proposition that criminal punishment should be proportional to the culpability manifested by the defendant; again, MPC tailors culpability to the level of culpability

              1. Excessive use of defensive force

                1. In general, a person who responds to unlawful aggression with excessive force is guilty of the assaultive offense applicable to his or her conduct

                2. However, a person who kills an aggressor whose conduct justified only moderate force would not be liable for murder in most jurisdictions; instead, the conviction would be for manslaughter, this would be because the actor responded in the heat of passion to the aggressor’s provocation and therefore would be said to lack the “malice aforethought” required for a murder conviction


        1. The General Principle of Justification

          1. Commonwealth v. Markum

              1. Defendant’s entered an abortion clinic and destroyed equipment and refused to leave during a protest, they were arrested and charged with defiant trespass

              2. Court states that defendant, in order to make a justification defense, must be able to make an offer of proof which establishes all of the following:

                1. That the actor was faced with a clear and imminent harm, not one which is debatable or speculative

                2. That the actor could reasonably expect that the actor’s actions would be effective in avoiding this greater harm

                3. There was no legal alternative which will be effective in abating the harm, and

                4. The legislature had not acted to preclude the defense by a clear and deliberate choice regarding the matter at issue

              3. Also, that the defense of justification was not available in situations where the conduct some perceive to engender public disaster has been specifically approved by legislation making it legal conduct

              4. Question arises on how you violate a law that is permissive (not restrictive like in Rosa Parks example) in order to fall into the category that would be excused

          2. Common Law Necessity

              1. Judge McEwan (in his consent-dissent) notes that the general defense of justification is a codification of the common law defense of necessity

              2. The unifying theme of the specific defenses of justification is the necessity for making a choice among evils

              3. Whether there remains a residual and otherwise undefined defense of necessity apart from such specific doctrines is not entirely clear

              4. Markum provides an unusual occasion for exploring necessity and its place in the structure of justification defenses

              5. Claims of necessity or choice of evils have often been raised, almost always unsuccessfully, by persons protesting politically controversial issues

          3. Modern Statutory Formulations

              1. The PA justification statute applied in Markum is identical to the general choice of evils defense in the MPC

              2. NY also has codified the defense of justification: “…conduct which would otherwise constitute an offense is justifiable…when such conduct is necessary as an emergency measure to avoid…”

              3. The NY provision and the MPC section embody different definitions of what constitute an evil or injury to be avoided

              4. Under the MPC, whatever is legal could not be evil; the MPC, in other words, precluded the necessity defense whenever the legislature had legalized conduct

              5. The NY statute provides that the injury to be avoided must according to ordinary standards of intelligence and morality clearly outweigh the injury the criminal law in question were designed to prevent

          4. Necessity

              1. Reasonable belief (fact question)

              2. Necessary (fact question) must be imminent, no alternative, and effective

              3. Avoid greater harm (law question), court decides this element

              4. No legislative/constitutional preclusion (law question)

              5. Defendant’s fault in terms of mistaking necessity (this is where CL and MPC diverge)

                1. CL

                  1. Any fault on defendant’s part precludes necessity

                  2. Homicide is never justified as a necessity

                2. MPC

                  1. Any fault on defendant’s part ultimately subjects him to only to prosecution for a crime that requires that level of culpability (similar to self defense approach)

                  2. Does not preclude homicide as a general necessity

          5. Economic Necessity

              1. One case reasoned: economic necessity has never been accepted as a defense to a criminal charge because if it was if would allow people to take the law in their own hands; in larceny cases, economic necessity is often a mitigation of punishment but not a defense

              2. This language has been criticized on the ground that a defense might be appropriate in a case involving theft by a mother to feed her starving child

          6. Medical Necessity

              1. Comparable issue to Markum (effect of prior judicial and legislative resolution of the abortion issue) is where an accused argues that a violation of the drug laws is justifiable by reason of medical necessity

              2. These claims have met with varying success

          7. Necessity as a justification for homicide

              1. The claim of necessity as a justification for intentional homicide arguably presents a special case

              2. The common law did not permit a general plea of necessity to justify killing an innocent person in order to avoid some other evil; in contrast, most modern statutes, including the MPC and the NY provision, seem to contemplate that a defense of necessity or choice of evils may be raised where one innocent person is killed in order to save others

              3. The question of whether necessity may justify intentional homicide is considered in the famous case of Regina v. Dudley and Stephens where four men were cast away at sea and killed and ate one of their shipmates to survive (they were convicted of murder)

          8. Necessity created by fault of the actor – The NY statute limits the choice of evils defense to cases where the necessity is occasioned or developed through no fault of the actor; most state statutes on the subject impose a similar limitation, as does the MPC.






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