A. Actus Reus = culpable conduct.

No one is punished for his thoughts alone, need evidence of Ds mental state:
Always required, even if strict liability.
1. A bodily movement that is voluntary.
Common Law: conscious of and in control of action
Involuntary: acting as an automation; act while unconscious
MPC 2.01: defines what is not voluntary: reflex, act while unconscious, bodily movement that is NOT
conscious or habitual (product of effort or determination)
Certain exceptions: possession requires person to be aware/heave knowledge that she has the thing.
Generally words dont count unless specific instance (e.g. conspiracy, treason, complicity)
An EARLIER voluntary action can be the basis for culpability
person with mental problem making the choice to not get therapy; person driving even though aware
that he is prone to seizures; malfunction of a cruise control device to which driver voluntarily delegated
partial control of the car.
While the act causing the harm was involuntary, the actor is not immune to liability.
What does not constitute involuntary acts:
Lack of control (couldnt resist)
Unintentional acts
Acts whose consequence are unforeseen.
Forced voluntary action:
If someone puts a gun to your head and forces you to do something, it is still a voluntary act, there is no
total loss of determination or action. But you may have a defense for your actions.
2. An omission to act.
penal statute: if the omission is specifically criminalized (e.g. good samaritan laws)
Or when one breaches a legal duty to act:
status relationship (e.g. parent to child, husband to wife, master to apprentice, ships master to crew and
passengers, innkeeper to inebriated customers).
contractual duty
undertaking: assumed duty of care. (e.g. assuming care of another and secluding the helpless person as
to prevent others from rendering aid).
culpably placing another in peril: have duty to take reasonable steps to assist the imperiled person.
Must also be VOLUNTARY:
Involuntary Omission: If an actor is not physically capable of performing the act, the omission is not
voluntary.
Same under MPC:
An omission is not an offense unless the omission is expressly made sufficient by the law defining the
offense, or a duty to perform the omitted act is imposed by the law.

Mens Rea
B. The accompanying mental state to the actus reus. Designates intentionality/culpability
Strict liability: requires no mental state
Conditional intent: Intent can be proved by conditional intent
Exp carjacking: I wont shoot you if you give me your car => proves intent to kill.
MPC describes 3 different kinds of material elements:
Conduct (of the offender) = action, omission, or series of actions/omissions (actus reus)
Attendant circumstances = facts or conditions that must be present during the prohibited conduct.
Results (of conduct)
All elements in the crime (including justification, defense) => one of these categories.
Crimes do not have to have all three elements.
You can have more than one of these elements.
Exp, larceny (e.g. takes and carries away property of another).
Conduct = takes; carries away
Many crimes have no result element (e.g. rape, possession of narcotics), nothing has to happen as a result
of those actions.
For others, result is the utmost importance (e.g. death as a result of homicide.)
Common Law mental state terms:
Malicious: actual intention to the do the harm that was caused, or recklessness.
General intent: intentional action
Specific intent: actions must be done with some specified FURTHER purpose in mind.
Facts or circumstances:
Specific intent: actual knowledge/awareness of the particular fact or circumstance.
MPC translations:
Specific intent crime: purpose/knowledge
General intent crime: recklessness/negligence
MPC: Any lower mens rea is fulfilled by any higher mens rea (purpose fulfills knowledge)
Purpose: specific intent or intent
nature of conduct = conscious object to engage in conduct of that nature
result = conscious object to cause such a result
circumstances = aware of their existence, or believes/hopes that they exist.
Knowledge: aware or willfully
nature of conduct = awareness that his conduct is of that nature.
result = aware that it is practically certain his conduct will cause such a result. (cant be aware of
what will be, only its probability).
circumstances = awareness that such circumstances exist
existence of a particular fact = aware of a high probability that the fact exists, unless he actually believes
that it does not.
Recklessness: conscious risk creation
consciously disregards a substantial unjustifiable risk that the material element exists or will result from
his conduct.
Jury looks at whether risk was substantial, justifiable from Ds point of view, then jury evaluates
whether the disregard of the risk is a gross deviation from what a reasonable person would do.
Negligence: inadvertent risk creation
should be aware of a substantial and unjustifiable risk that the material element exists or will result from
his conduct.
Jury looks at whether risk was substantial, justifiable from Ds point of view, then evaluates whether the
failure to perceive the risk, is a gross deviation from what a reasonable person would observe.

Deliberate ignorance and Knowingly:

Willful blindness doctrine: knowledge = positive knowledge or deliberate ignorance: Gov. must prove
beyond a reasonable doubt, that if D was not actually aware, his ignorance was solely/entirely a result of a
conscious purpose to avoid learning the truth.
MPC: knowledge is established if a person is aware of a high probability of its existence, unless he
actually believes that it does not exist.
limits willful blindness doctrine by requiring an awareness of a high probability that the fact exists, not
just a reckless disregard, or a suspicion followed by a failure to make a further inquiry.
Some courts require evidence that the defendant was aware of a high probability and that he purposefully
avoided learning of the illegal conduct before a willful blindness or ostrich instruction is given.
Statute Interpretation of Congressional Silence
Common law: scienter (a mens rea) was a necessary element for every crime.
MPC Construction Rules:
The stated mens rea applies to all material elements, when there is no distinction between the elements,
unless otherwise specified.
Exp: if you have a mens rea and elements appear after (not broken by punctuation, etc) then that mens
rea applies to all (unless otherwise specified).
If the stature is silent on the mens rea required, the element is established if the person acts purposely,
knowingly, or recklessly. MPC 2.02(3)
Indicating Mens Rea (Morissette, Staples):
Assume mens rea required in these situations, unless there is an express contrary intent.
Common law offense (e.g. stealing, larceny) => mens rea
If offense criminalizes otherwise innocent conduct - mala prohibita => mens rea
If high penalty and serious stigma => mens rea.
New offenses (like public welfare offenses), must look at the act itself.
Indicating Strict Liability:
If the purpose of the statute would be obstructed by such a requirement => no mens rea.
Applies mainly to public welfare offenses, statutory regulations where congress has weighed the
possible injustice to an individual with the public good/public safety.
Strict Liability Policy
Policy reasons for strict liability:
Balance of public welfare vs. punishing innocent offender; efficiency of controls, offender usually in best
position to prevent it, minor stigma and penalties are relatively small.
Policy reasons against:
Not fair to punish without culpability.
Can punish people who have taken all reasonable steps to comply with the law.
May exclude careful, risk advertent ppl from an activity due to the risk.
MPC on strict liability:
Every element of a crime requires a mens rea (culpable state of mind).
Strict liability only for violations (not a crime), and may only result in a civil penalty (e.g. a fine). No
criminality, probation, or imprisonment for strict liability offense.
Thus only exception to this rule, is that the MPC has strict liability for forcible rape when the victim is
under 10.

Mistake of Fact
Community ethic approach (Prince court) (p. 228): No mistake as to a circumstance of a crime (e.g. age
of girl in crime for taking of an underage girl, or wife being pregnant in crime of abandoning a pregnant
wife) when the underlying crime is an immoral one.
Reasonable Approach:
No matter what the mens rea is, a mistake of fact must be reasonable (Freeman)
MPC approach:
(1) If the statute provides that the state of mind established by the mistake is a defense.
(2) The mistake of fact negatives the mens rea required for a material element
No defense if hed be guilty of another crime if the situation was as he supposed.
An honest belief, even if unreasonable will negative purpose, knowingly, recklessly
But an honest belief, must also be reasonable to negative negligently.
Burden of proof:
A mistake of fact shows disproof of an element of the crime
Gov has the burden of disproving the defendants mistake.
All D has to do it raise a reasonable doubt that the mens rea was not proved.
No mistake of fact defense for strict liability
Mistake of Law -- Generally No Excuse/Defense
Mistake of law (whether conduct is a crime, whether the crime exists, what the penal law means, whether
the penal law applies to the accused).
Based on the statute itself (An Element in the Offense) Cheek, MPC 2.02(9): (YES)
If statute specifically provides that knowledge (or other mens rea) that one is committing the offense is an
element of the offense itself => ignorance/mistake of law is a defense
Burden of proof:
Prosecution must prove beyond a reasonable doubt that the accused did in fact have knowledge (or other
mens rea) that he was committing the offense.
Remember, like mistake of fact it is an element of the offense.
For crimes that criminalize otherwise innocent/lawful conduct
proof that the accused knew of the existence and meaning of the crime
For crimes that dont involve otherwise innocent conduct,
proof that D knew his conduct was unlawful was sufficient, accused did not need to know the
existence of actual law he was charged with (Bryan).
Legal element exception (Collateral law; Part of an Element in the Offense) (MAYBE)
If the mistake of law involves a legal element of the crime, then it negatives mens rea => defense
Exp: legal element = property belonging to another
mistake of law = under law, what constitutes ownership of the ppty in question.
Note, the mistake regards some other legal rule that is an attendant circumstance (material element which
has a required mens rea)
Can only exist for concepts that depend on facts and law (e.g. custody of a child, property, marriage)
For these concepts, a mistake of law/mistake of fact will both negative the mens rea.
knowing the man was another husbands; mistake of fact => he lied to her that he was divorced;
mistake of law => belief that Nevada divorce nullifies a Vermont marriage; both result in negating the
element).
CANNOT be used for a concept solely based on facts (e.g. someones age).
Based on Official statement (Affirmative Defense, D bears burden) (MAYBE)
D relied on a statute or other enactment on a statute that was later found to be erroneous
D relied an official interpretation by public entity legally charged with administering, enforcing, or
interpreting such statue or law (Marrero, p. 257).
Judicial decision: One can rely on the latest controlling court opinion that holds his conduct lawful until
the opinion is reversed, or at least granted certiorari by the supreme court (Albertini, p. 269).
MPC approach:
Same +: state or enactment has not been published or made available (MPC 2.04)

 Not always an exception: Hopkins (p. 270): D relied on advice of state attorney (for sign) no excuse.

Rape
A. Actus Reus of Rape
Actus reus spectrum of rape
* physical force,
non-physical force
or threat of physical
force

penetration only

no force

A1. Actus Reus of the Defendant

Physical force or threat of physical force (Majority Rule):
Common law/MPC approach: An act physical force, or a threat of physical force.
Can be shown by a totality of accusseds actions [e.g. taken to unfamiliar surroundings, taking of car
keys, light choking -- (Rusk p. 327)].
Special circumstances (e.g. victim below certain age, unconscious, mentally incompetent) => may not
require an act of force
Force by non-physical means (psychological threats, intimidation, fear) dont count.
Exp: high school principal who threatened to not let victim graduate => no force (p. 334)
Non-physical force requirements:
Some juris extend rape or sexual assault to non-physical force or threat of force: consent obtained by
duress, coercion, extortion, or using a position of authority.
Exp, PA defines forcible compulsion as compulsion by use of physical, intellectual, moral,
emotional, or psychological force, either express or implied. (p. 336)
MPC allow conviction for gross sexual imposition (3rd degree felony) if defendant compels victim by
any threat that would prevent resistance by a woman of ordinary resolution.
No force requirement
Minority Rule (usually for lesser offense)
Actus Reus: any sexual act in the absence of consent, the only force required is that inherent in the act of
penetration.
Possible definition of nonconsent: anything that falls short of affirmative permission by words or
conduct. [WI and NJ]
A2. Actus Reus of the Victim (may be required)
For force approaches, usually resistance must be shown or Ds actus reus cant be proved.
Proof of resistance:
Some states require an act of resistance on behalf of the victim (usually reasonable resistance
although several require earnest resistance)
In the states that dont require resistance, courts consider resistance (or lack thereof) as highly probative
on the question whether the victim consented.
Generally, verbal resistance alone is insufficient (Berkowitz, supp 4-1).
Failure to resist because of fear:
All courts recognize that in some circumstances resistance is unnecessary, the amount of reasonable
resistance is no resistance at all.
The question becomes whether the apprehension of fear was reasonable
Note, that a requirement that the victims fear be reasonable does not require that the defendant know of
her fear (e.g. she may have an unreasonable fear and he may know it, wouldnt overcome the
reasonableness requirement).

B. Mens rea for consent

Mens rea spectrum for consent:
knowledge,
*Negligence
Strict liability
recklessness
Handful of states on extreme ends of the spectrum, majority falls under the middle.
Majority Rule:
Negligence is required for the element of victims non-consent.
A mistake of fact as to consent if honest and reasonable is a defense.
Some courts limit the reasonable mistake defense to cases where there is evidence that the defendant
misunderstood the victims actions (Tyson, p. 360)
Policy implications: when rape was an act of violence, no real room for mistake of fact. But as the actus
reus broadened (e.g. psychological coercion) it made sense to allow for mistake of fact, as the defendant
may wrongly, but reasonably, believe that his words and conduct do not constitute force or threat of force
and that the non-resisting female is consenting.
Policy justification: some fault, more protection.
Minority Rules:
Strict liability: No mistake of fact even if honest and reasonable (Fisher, p. 357; Ascolillo, p. 358)
Policy: ensure carefulness.
Knowledge/Recklessness:
an honest mistake, even if unreasonable, would be a defense.
Policy: rape has such serious consequences, make sure person is culpable.
Exp, Alaska requires recklessness (p. 359)
Mistake of law:
Only time this would come up is if the rape statute required the person to be not a spouse, then there is a
possibility to have mistake of collateral law (marriage).

Murder
Intent plus (intent to kill plus something that makes it more culpable)
Common law: unlawful homicide = murder (no gradations) and the penalty = death.
2 main approaches to divide murderers based on premeditation, but this line means different things,
either approach can be right. Alternative = abolish this line.
First degree: willful, deliberate, and premeditated killings
Mens Rea: specific intent (purpose)
1. Premeditation = specific intent to kill
Specific, intent to kill/conscious purpose to bring about death.
No appreciable time between intent to kill and the killing: Many courts do not require a time lapse in
order to show premeditation, where effectively all premeditation requires is intent to kill.
o no time is too short for necessary premeditation to occur (Carroll, p. 398)
o no appreciable space of time between the formation of the intention to kill and the act of killing is
required, premeditation and deliberation may be formed while the killer is pressing the trigger
(Young, p. 400)
2. Premeditation = reflection on the decision to kill
Prior calculation and design, actual reflection on the decision to kill, considering and weight the decision
to kill, purposefully after contemplating the intent to kill.
Some appreciable time between intent to kill and the killing: Although premeditation and deliberation
are not measured by any particular length of time, there must be some period between the formation of the
intent to kill and the actual killing, there must be some reflection on the intention to kill. (Guthrie, p. 402)
Proof of premeditation? Relevant factors include: relationship of the accused and the victim at the time of
the killing, whether plan or preparation existed either in terms of the type of weapon used or the place
killing occurred, presence of reason or motive to deliberately taken life (Guthrie, p. 403)
o Justification: Killers that reflect on the intent to kill and then does it is more dangerous, culpable than
one that kills on impulse.
o Rationale: To say otherwise negates the distinction between first/second degree murder. Consistent
with the other examples of 1st degree murder explicitly in statute (e.g. lying in wait, w/ poison)
MPC:
No distinction between first/second degree murder
highly culpable reflectors and highly culpable impulse killers
A person who callously kills on impulse is just as dangerous, culpable as one who pondered the
decision.

Mitigating Murder to Manslaughter

Voluntary manslaughter: Intent minus (intent to kill but something that makes it less culpable)
Common Law/Majority Rule::
(1) heat of passion (loss of control)
(2) upon adequate provocation (categorical or flexible)
rigid: what is provocation defined by categories as a matter of law, jury decides whether it actually
occurred. (majority rule)
flexible: what is provocation matter for the jury
Targeting of the provocation:
Defendant has to direct the rage at the provoker:
Accidental victim of rage directed towards provoker => perhaps mitigation
Nonprovoking bystanders => no mitigation
Defendants who elicit provocation => no mitigation
(3) and inadequate cooling time (rigid or flexible)
rigid: legally adequate cooling time, too long of a time lapse between provocation and killing, makes
provocation inadequate as a matter of law. (majority rule)
Flexible: jury decides what is reasonable/adequate cooling time (can find that a time lapse serves to
aggravate rather than cool the defendants agitation).
Categorical Approach to Provocation:
Provocation is defined as certain well-defined classes:
extreme assault or battery on the defendant; mutual combat; defendants illegal arrest; injury or serious
abuse of defendants close relative; sudden discovery of spouses adultery (p. 405)
Words alone are not adequate provocation (Girouard, p. 406)
Jurys role: figure out whether recognized provocation occurred.
Flexible Approach to Provocation (increases the situations where murder is mitigated):
Provocation is anything with the natural tendency to produce passion to the extent that it might render a
reasonable person to act rashly and without deliberation.
Note, see next page on reasonable person + individual characteristics
Provocation is a question of fact - to be decided with reference to the peculiar facts of each particular case.
Words might be sufficient
Jury decides tendency and sufficiency of provocation
-----MPC - Voluntary Manslaughter:
(1a) when the defendant acted under the influence of extreme mental or emotional disturbance
(1b) for which there is a reasonable explanation of excuse for the extreme mental/emotional
disturbance.
(2) someone who acted recklessly
Two Steps to evaluate:
(1) subjective: jury determines whether or not the defendant did in fact act under extreme emotional
disturbance (i.e. wasnt faking it)
(2) objective: from the viewpoint of a person in the defendants situation under the circumstances as he
believes them to be, would a reasonable person find the emotional disturbance reasonable (i.e. an
understandable human response deserving mercy)?

Broader than the Common Law:

Gives jury flexibility in taking into account individual characteristics (in the defendants situation ) -decides what special aspects of the defendants situation to take into account.
Blindness, extreme grief, etc. = part of situation
moral values ARE NOT part of the situation
Includes someone who acts recklessly
External force causing the emotional disturbance could be anything
the weather, the economy, etc
Can be ANY extreme emotional disturbance
i.e. not just rage or passion, could be depression)
Doesnt require defendant to aim his anger at what caused the emotional disturbance.
Reasons for this approach:
doesnt expect a person in an irrational state of mind to act rationally in targeting rage.
Allows for a mitigation for a build-up of circumstances that creates disturbance
-----Common Law + Reasonable person with Eligible Characteristics
Flexible Adequate Provocation => what would provoke a reasonable man.
No requirements on the kind of acts that could constitute provocation
Led to including individual characteristics
Development/End of the Reasonable Person + Approach
England began to have juries evaluate whether the provocation was enough to make a reasonable person
of. (e.g. the defendants age, gender, culture, glue sniffing addiction, etc) lose his self-control and do as
the defendant did.
Eventually ended (glazed looks of jurors).
Jury no longer instructed in terms of the reasonable man equipped with an array of unreasonable eligible
characteristics.
Now jury free to determine that some characteristics of the accused, whether temporary or permanent,
affected the degree of control which society could reasonable have expected of him, and must be taken into
account. (p. 424)

Unintended Killings
Varying lines for the threshold that constitutes criminal homicide. Anything below line is NOT criminal.
Ordinary negligence
(Today, no juris have this level)

* Criminal negligence or gross

negligence
reasonable person standard (may
allow indiv. characteristics)
Possible distinctions between negligence and recklessness:
Awareness of the risk
Higher degree or risk

Recklessness
(requires an awareness of the
risk)

Common Law:
gross negligence (criminal negligence).
In between ordinary negligence and recklessness.
MPC:
reckless homicide => manslaughter (are aware of the risk)
Negligent homicide => negligent homicide (should be have been aware)
Difference between Criminal and Civil law in evaluating negligence:
More than ordinary (tort) negligence is needed for criminal law (e.g. MPC negligence is higher)
Contributory negligence can NEVER be a defense to manslaughter
Though it MIGHT influence whether a Ds conduct was a proximate cause of the victims death.
Some risks may not be negligent or reckless because the risk is justified (e.g. a train traveling at a higher
speed creates a higher risk of accidents but it is justified in terms of public convenience).
The standard for determining Negligence:
Some courts taken into account individual characteristics, some dont.
Most important situation to whether court allows subjective standard is where intoxication is involved
(inability to recognize the risk due to being drunk) (p. 447)
MPC: takes into account characteristics like blindness, a heart attack, having just suffered a blow, but not
heredity, intelligence or temperament. (p. 438).
Everything in the middle is up for the courts to decide
Line between Murder and Manslaughter:
An unintended killing may be considered MURDER under certain circumstances.
Usually when there is evidence the defendant was aware he created a risk and showed an extreme
indifference to the value of human life.
Line for when unintentional killing is MURDER rather than manslaughter:
Common law/Majority Rule: (p. 441)
Evidence of malice, or a wicked, depraved heart => 2 nd degree murder (if distinguished)
Gross recklessness where death is a likely result
(1) awareness
(2) degree of risk
(3) reason
where there is no justification un-called for risk
Intent to inflict great bodily harm to the victim (p. 447)
Followed by many states
MPC approach: unintended killing is murder when it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life
Example (juris had 2nd degree murder defined similar to MPC):
Owner of rottweiler dogs, where dogs had escaped before and attacked ppl, escaped and killed a child.
Owner created an unreasonable risk and consciously disregarded it that showed an extreme indifference
to the value of human life.

Felony-Murder Rule Malice for the murder is satisfied by D committing the felony
LIMITATIONS:
ALWAYS DO Causation: the defendants conduct must be the cause of the death (but for and
proximate cause). (this must be proved for EVERY homicide).
But for => did the felony CAUSE the death?
Prox cause => was it reasonably foreseeable death would result from the felony?
Exception: if victim has particular vulnerability that makes him more susceptible
Can be satisfied by showing felony was so inherently dangerous that death was readily foreseeable.
Felonies Inherently Dangerous to Human Life
Different definitions of what is inherently dangerous
Whether it generally causes death
Whether death is an inevitable or most probable result
Whether results in high probability of death
In the abstract: the court looks at the elements of the crime in the statute
Limits by requiring foreseeability (those felonies were it is foreseeable that there is a risk of death).
viewed as whole vs. viewed separately: depends on existence of a primary element.
If no primary element, => view separately
Look at the whole statute in the abstract: if an inherently dangerous variety of the crime is grouped
with other varieties not as dangerous, then the whole statute is not inherently dangerous. (p. 463)
Look at the specific variety in the abstract
Under the circumstances of defendants commission:
The jury decides whether by the facts/circumstances of the particular case whether it was inherently
dangerous in the manner and circumstances in which it was committed (these ppl can be deterred).
Merger Doctrine: Only applies to a felony that is independent of homicide.
If the felony is integral to or included in fact w/in the resulting homicide => NO FMR
If NO felonious purpose independent of purpose to assault, inflict injury, or to inflict pain => NO FMR
If the use of the felony to FMR would undermine legislative purpose to grade the offense or make it
so it elevates all felonious assaults to murder or otherwise subvert the legislature intent => NO FMR
YES MERGE (first 2 standards) (e.g. assault, assault with deadly weapon, assaultive child abuse)
child abuse where death was result of a severe beating (no indepent purpose)
armed robbery is always included in charge of burglary-murder.
NO MERGE:
child abuse where death followed from dehydration and malnutrition
Identity of Killer (Agency Theory):
Only if the act of killing is done by a co-felon, or someone acting in concert with the felonious scheme
=> FMR applies.
This means if the act of killing by a 3rd party not in furtherance of the felonious scheme (police officer,
bystander, or victim) => FMR does NOT apply.
Possible Alternative for getting conviction:
This would find felon guilty of ACTUAL MURDER NOT FMR
Malice based on recklessness: when a felon acts with a conscious disregard for life, with an act
likely to cause death, and a 3rd party responds reasonably the killing is attributable to the felon.
Vicarious liability: A felon is liable for any actions of co-felons that is in furtherance of the common
design, so may be liable for co-felons killing if conduct was reasonably foreseeable (complicity).
(p. 479)

So, if one felon is liable for depraved heart murder ALL co-felons are potentially liable.
Causation is fulfilled because 3rd partys action cant be superceding cause, because their actions
are not their own free choice (result of situation thrust upon them).
All states would find malice in shield cases: where hostage is shot by someone opposing the
felon(s) because he is used as a human shield.
Some juris would allow FMR for shield cases even with agency theory Reasoning: two killers;
killer (with bullet) and killer (person who places the person in path of bullet).
Identity of Victim: No FMR if the victim is one of the felons, regardless of who does the killing.

 Vicarious liability: If the victim is a co-felon, then it is impossible to base defendants liability for
this offense upon his vicarious responsibility for the crime of his accomplice (because the accomplice
could not be found liable for his own death).
Additional FMR Info:
Qualifications on FMR (p. 457):
Designated felonies for 1st degree FMR conviction; rest 2nd degree FMR
Designated felonies for any FMR conviction (1st or 2nd)
Require some kind of mens rea (not necessarily malice) but recklessness for a killing in the course of a
felony => NOT FMR, since requires mens rea.
Extension of FMR
Prox-cause theory: defendant is liable for any death that results during the felony that is foreseeable.
Doesnt matter who the killer is
Justification: deterrence, makes it very risky to commit a felon.
MPCs approach: REMEMBER, NO SL IN MPC!!
MPC: If an actor is engaged in or an accomplice in committed robbery, rape, arson, burglary, kidnapping,
etc creates a rebuttable presumption that the actor acted with a gross recklessness with an extreme
indifference to human life (murder).
Misdemeanor-Manslaughter Rule (or Unlawful-Act Doctrine)
Many states a misdemeanor resulting in death provides a bass for involuntary manslaughter conviction
without having to show recklessness or negligence.
Limitations:
Proximate cause: causation must be shown for EVERY homicide
e.g. misdemeanor of having expired drivers license, no causal connection with death of a motorist.
Regulatory offense: restricted to malum in se as opposed to malum prohibita misdemeanors.
Dangerousness: applies to only the misdemeanors that rise to the level of criminal negligence.
Underlying conduct was dangerous to human life under circumstances committed
Limited to misdemeanors designed to protect human safety
Policy justifications for FMR:
Deterrence
Deterrence from committing the felony itself
Deterrence from dangerous conduct during the felony
Policy Against FMR:
Severe punishment without having to prove fault (strict liability)
Little evidence to show it deters

Attempt
Attempt is an inchoate crime (conduct designed to culminate in a commission of a substantive offense,
but failed to do so, or have yet to do so).
Common Law: attempt was a misdemeanor
Punishment:
Modern Law: usual punishment is reduced factor of the punishment for a completed crime (one-half,
one degree less, for some offenses like drug offenses punish. is the same).
MPC: reduced punishment, but those for first-degree carries same punishment.
Reasons for Punishing for attempt:
Same as why you would punish for the regular crime. The only argument that doesnt really seem to
carry-over is general deterrence (already accomplished by punishment for the completed crime).
A. Mens Rea for Attempt
(1) For crimes that have a particular result:
Common Law/Majority Rule: specific intent; purpose; or believes will result (belief arguable)
Even when a lesser mens rea is required for the completed crime.
Example: Aids case, defendant had unprotected sex with HIV, was not found guilty for attempted
murder, for lack of evidence of specific intent.
In absence of proof that demonstrates specific intent (Ill give you AIDS):
Specific intent may be proved by circumstantial evidence that shows that death would have been a
natural and probable consequence of his act.
In this case, exposing the victims to HIV was not conduct from which death is natural and probable
result. (p. 558)
Contrast: Specific intent would be inferred from the use of a deadly weapon directed at a vital part
of the human body
No attempted involuntary manslaughter, because no specific intent exists for the committed crime.
A person who acts knowing that his acts creates a strong probability of killing somebody will commit
murder if the person dies, but if the person does not, the defendant cant be liable for attempted murder,
because it requires specific intent to kill (p. 559).
Strict liability crime in principle would also require specific attempt.
Minority rule: Attempt requires the same mens rea of the completed crime.
Strict liability for attempt of a strict liability crime (p. 560).
Can have attempted reckless manslaughter by showing defendant was reckless (p. 561).
(2) Conduct: specific intent; purpose
(3) Circumstances: the same mens rea as required for the completed crime.

B. Actus Reus for Attempt

Act in furtherance of
Substantial step
Proximity,
Completed crime
the crime
Equivocal
*half the states and 2/3rd of federal circuits use substantial step similar to MPC.
Drawing the line between preparation and attempt:
Proximity Approach: acts that are proximate and near to the crimes completion.
Factors (space, time, how much left for the completion, how likely the crime will be committed)
Leaves opportunity for somebody to change his mind.
Equivocality Approach: looks not how far the defendant has gone, but how clearly his acts manifest his
attempt.
Equivocal means subject to two or more interpretations, of uncertain nature.
Need overt acts that are sufficient in themselves to show guilty purpose (demonstrate unequivocally, that
the defendant had the intent to carry out the act).
Exp: for arson, buying a box of matches is not enough, but taking a match to a haystack and lighting
one of them is.
Critique: even the act of lighting a match can be ambiguous.
*Substantial Step: An act that is substantial step in the course of conduct to accomplish a criminal result,
that is strongly corroborative of the firmness of their criminal intent.
Basic approach of MPC, but usually tinkers it a little. (MPC step must be strongly corroborative of
criminal purpose).
Yes step exp: defendants guilty of attempted armed robbery because they arrived at the bank with a
car of guns, masks, etc, entered to check on the surveillance cameras (rescheduled date due to tellers
separating deposits and too many ppl in the bank) (p. 575).
No step exp: defendant was found not guilty of attempting to buy cocaine because he stopped short
of taking a substantial step, he never attempted to carry through the desire to buy by producing the
money necessary to make a purchase (p. 580).
Difference between approaches and from where you are measuring:
Proximate: measure what is left to be done.
Substantial step: measure what has been done.
Inchoate substantive crimes that avoid law of attempt (p. 572):
Burglary: is breaking and entering with intent to commit a felony inside.
Assault: an attempt to commit a battery.
Modern statutes: many statutes condemn acts, the conduct itself innocent, if they are done with a
forbidden intent (e.g. entering in school building with intent to disrupt classes)
Policing measures: measures for dealing with ppl who engage in suspicious activity (e.g. crime to loiter
in circumstances giving rise to danger).
Stalking
Defense:
Common law: no defense of abandonment.
Many states still go by this.
To minimize unfairness, courts may insist threshold of criminality is placed very close to the last act
(p. 568).
Justification: you have shown you are dangerous by having gotten as far as you did.
Alt rule: abandonment is a complete defense (most modeled after MPC). (p. 568)

Complicity -- Liability for the Conduct of Another

Accomplice liability (complicity) is NOT a crime. Doctrines why one person is liable for anothers persons
crime. If you are an accomplice to someone elses murder. Your crime is murder, not complicity.
1. Mens rea of the Accomplice
a. With regards to accomplices contribution to the conduct/acts of the principle:
(a) *specific intent or purpose: (Majority and MPC)
purpose or intent to promote the conduct/actions of the principal.
Was D seeking to further the conduct? Wishing to promote the conduct?
NO purpose exp: D told A to buy drugs from B, directed him by drawing him a map. But there was no
purposive attitude towards aiding the principle in selling drugs.
Court says no because no nexus between D and the principal, no evidence that D was going to reap
a benefit, it wasnt his purpose to aid in the sale.
(b) knowledge: accomplice knowingly facilitates the commission of a crime.
(c) knowledge + substantial facilitation:
(d) knowledge if serious crime (like murder), purpose required for lesser offenses.
* majority view
b. Attendant Circumstances
(a) knowledge required
(b) whatever the offense requires
(c) MPC approach: accomplices mens rea towards the circumstances is left to the court (p. 622).
c. Results -- (all follow, MPC too)
(a) mens rea required for the result of the crime
Exp: defendants engaged in a gun battle, somebody shot and killed a teacher caught in the crossfire. All
showed the mens rea of depraved heart necessary for conviction of murder.
2. Actus Reus of Accomplice
Acts that encourage, aid, or facilitate the principals actions
Jazz case: presence + payment = encouragement
Attempt to aid may suffice
Common Law: acts that isnt communicated to the mind of the principal is irrelevant
MPC: attempts to aid is clearly sufficient, mere solicitation is even enough.
Omission: accomplice must have a legal duty to prevent the offense and fails to do so with the purpose of
promoting or facilitating the crime. (also MPC)
NO but for causation required (i.e. even if the principal could have committed the crime without the aid,
accomplice is still guilty). However, the principals conduct does need to be the but for cause.
3. Extent of liability for principals actions
Accomplice is only liable for reasonably foreseeable consequences or natural and probable
consequences.
(a) Emphasis Foreseeability: accomplice is liable for any offense (i.e. conduct) of the principal that is
reasonably foreseeable from the conduct he intended to promote. [Luarello, p. 616].
(b) Emphasis Natural & Probable: accomplice is only liable for any offense (i.e. conduct) of the
principal that is a natural and probable consequence of the conduct he intended to promote.
Refers to what reasonably ensure, not to what conceivably might happen.
An outcome within a reasonably predictable range. (p. 619)
Exp: robbery of a buyer of an unlicensed pistol sale is not the natural and probable consequence of
the transaction.
(c) Reject
MPC rejects this approach, liability of an accomplice shouldnt extend beyond the purpose that the
accomplice shared with the principle. (p. 620)

4. Relationship between Accomplice & Principal:

A. Guilty principal Rule/Requirement:
General Rule: no complicity without guilty principal (mens rea and actus reus). Complicity is a
derivative crime, accomplices liability is dependent on the principals violation of the law.
(1) principal must have Mens rea for the crime
Exp: person encouraging someone to distribute porn who knows the victim is under 18, but the
distributor does not know -- the distributor (principal) lacks the mens rea, so this is not satisfied.
(2) principal must have the Actus Reus for the crime.
(3) Effect of Principals Defense (excuse, immunity, justification)
If the principals excuse/justification changes the nature of the act, making it noncriminal => imputable
Excuses are personal to the principal => not imputable; justifications => imputable
A justification available to the principal may be undelegable => not imputable
Imputable Exp: if you see somebody trying to defend himself (justification: self defense), and you give
him a knife - you can take advantage of the self-defense justification and be justified yourself.
MPC Approach:
doesnt explicitly deal with excuses, justifications, or defenses => uncertain how MPC would deal with
these situations.
MPC entrapment (followed by many states): provides a defense to accomplice if law enforcement
agents induce another to commit an offense using methods which create a substantial risk that such an
offense will be committed by persons other than those who are ready to commit it (p. 636).
Differences in the degree of culpability:
If accomplice has a higher degree of culpability => cant be guilty of a higher offense than the principal
(e.g. woman hired guys to beat up her husband, she had the intent for him to get hurt badly, but the beating
was not very severe).
If only one offense committed, the instigator cannot be convicted of a higher crime.
Alternative: As long as there is a guilty principal, judge each by his own mens rea.
Accomplice (instigator) can be guilty of a higher crime.
Flip side: instigator can be guilty of a lesser crime.
Exp: A hires B to kill his wife (A = manslaughter; acted in hot blood; B = murder; killed coolly).
Based on the notion that action of an intervening actor (semi-innocent agent) can be insufficiently
volitions to break the causal chain, but sufficiently volitional to hold him responsible for his own
actions.
E. Renunciation:
MPC withdrawal defense (adopted by many states): If accomplice terminates his complicity AND wholly
deprives it (his complicity) of effectiveness or gives timely warning to authorities.
Doesnt matter why the accomplice withdraws.
NY adopted this but added must be voluntary and complete
Conviction of the Principal:
Common law: principal had to be convicted before someone could be convicted as an accomplice. If
principal acquitted => no accomplice.
Majority: dont have to try principal first, and if he gets acquitted, can still try accomplices. Although this
doesnt change having to show the guilty principal at the accomplices trial (and flip side still must
establish guilt principal if principal is convicted).
Minority: no conviction of accomplices with acquitted principal.
Liability of the Accomplice:
General Rule: The accomplice may be convicted of any offense committed by the principal. (if P is
guilty of attempt, accomplice is also guilty of attempt).
MPC Approach:
Same as general rule +
If the principal does not complete or attempt the offense, the accomplice may be guilty of attempt or, in
the case of preconcert, criminal conspiracy. (p. bottom 631-632)

 Note, D can be guilty of attempt on less action then it would take for someone to be liable for attempt
as a principal.

When complicity CANNOT be satisfied -- can we say D committed the crime himself?
INNOCENT AGENT PROB:
D as Principal using innocent-agent (his puppet) for committing the crime:
The innocent-irresponsible agent has a lack of mens rea.
MPC, general rule: A person is legally accountable for the conduct of another person when acting with
the culpability required for the commission of the crime, he CAUSES an innocent or irresponsible person
to engage in such conduct. He is accountable as if the actions were his own.
At common law: that person causing the agent to act would be a principal.
Must show CAUSATION
but for Ds actions, agent would not have done it, foreseeable the agent would do it
Must be innocent or irresponsible agent, if competent & capable person, intervening free-will acts of the
person would break the causal link.
When we allow causation to run through, not likely the person is acting of his own volition, not a freewill choice.
Innocent or irresponsible person is a mere agent, the instigator is the principal.
Extreme case: gun to the head of the agent.
Difficulties of the innocent agent (p. 640-641):
When a crime can only be committed by a certain class of ppl, of which the defendant is not a member.
Exp: only officer or employee of bank cant enter false records of transactions.
If D helps an employee to do so, can be an accomplice.
But if he uses an innocent employee as an agent to do it unknowingly, no guilty principal.
Cant use innocent-agent theory because the instigator cannot violate the statute.
Solution: whoever willfully causes an act to be done which if directly performed by him or another
would be an offense, is punishable as a principal.
When a crime can only be convicted by the body of the person himself (e.g. drunk in public).
PARTNER IN CRIME GETS HURT/KILLED:
Ds actions are evidence of MALICE sufficient to prove crime (e.g. murder, manslaughter, etc)
Must overcome CAUSATION:
free will breaks causal link: the free-will choice of victim intervenes and prevents causation. Prox
cause can not be satisfied if juris follows this
drag racers, one gets killed during the race, the victims own conduct caused his own death (intervening
cause).
Need direct causal connection
Even when courts adhere to this principle two variables can influence the notion that free will is
honored and prevents causation:
Foreseeability (less important): exp: D taught victim to play russian roulette. Perhaps not
foreseeable that he would play on his own. (p. 552)
Free-will is affected by the dilemma thrust upon them. Victims free will is impaired by Ds
actions. Exp: Kern (p. 547): victim was fleeing from abusive racial attack and was killed, no free
choice.
Foreseeability: free will of the victim doesnt negate the defendants conduct/actions if the very harm that
occurred was the exact foreseeable risk.
Exp: free-will of the other drag racer whose actions get himself killed, doesnt negate the culpability of
co-racer.
Ordinary prox cause principles (same as tort law).

Exculpability
When the law allows a defense, to a wrongful action because the actor has shown that he is either free of
blame or is less culpable.
Intoxication:
A. involuntary
MPC: defines involuntary by defining what is voluntary intoxication: knowingly ingests substance
which he knows or ought to know (negligence) has the tendency to cause intoxication.
A. Is a defense when:
(1) Negates a mens rea element of the offense (MPC; Kingston)
(2) Creates a state of mind (temporary or permanent) that meets the test of legal insanity for the juris. In
other words, a substantial incapacity to appreciate the criminality of his conduct or to conform to the law.
(Common Law, Majority Rule, and MPC).
A claim that the defendant would not have formed the intent, had he not been intoxicated is NOT a
defense.
But D didnt have NO self control; the drug didnt create intent, D did; D made a detterable choice.
B. Voluntary
(1) Negates a mens rea of the offense
(2) When it produces a permanent condition (brain damage) sufficient to meet the test of legal insanity.
=> this is an INSANITY defense
Variations on what mens rea it cant be used as a defense for:
Majority rule: defense for specific intent but not general intent
General intent = intention to engage in the act
Specific intent = some intent to do further act, intent for an additional intent over and beyond the
initial act.
Specific Intent Examples
Burglary: knowingly enter, with intent to commit a felony.
Attempted murder: intent to commit the act, with intent for death to result.
General Intent Example:
Rape: intent to engage in sexual intercourse
High Threshold for admissibility of intoxication: only relevant if it is such a high degree that it could
produce a complete powerlessness over ones faculties.
Special rule for recklessness: can be guilty even if unaware of a risk when drunk which he would
have been aware had he been sober. But only for this exception, if you are unaware of the risk because
you are forgetful that you voted before, would not be guilty.
Justification: potential consequence of excessive drinking is to impair ones ability to gauge risk, so
not unfair to punish for this. Culpability required by the crime is equivalent to the culpability
involved (conscious disregard of a risk) when one chooses to drink in the first place (equivalent
culpability).
Voluntary Intoxication Spectrum
* Montana (10
Stasio (NJ)
states)
(several states)
Pre-19th century law
Not a defense to MR

Can only negate

premeditation for 1st
degree murder

*19th century
Common Law

*MPC, CA
(2/3 of states)

MPC tweaked

specific intent =
defense

Purpose, knowledge
= defense

Purpose,
knowledge +
Recklessness
= defense

general intent NO
defense
Intoxication is NEVER a defense to negligence.

Recklessness, neg.
NO defense

Insanity Spectrum:
No Insanity
Defense
(handful of
states)
Defendants can
use their mental
defect to show
they couldnt
form the required
mens rea for the
crime.

Federal Standard

*MNaughten

*MNaughten +

*MPC

Durham

Often construed
as total loss of
ability

MNaughten +
irresistible
impulse

lack substantial
capacity

Product test: but

for mental
disease or defect
would not have
committed act

appreciate the
criminality
[wrongfulness]

*21 states use some form of MNaughten; 22 use MPC

No Insanity Defense:
What kind of ppl does this preclude from using insanity defense?
Those who meant to do it (cant negate mens rea) but they didnt it was wrong.
The Federal Standard (narrowed the standard):
(1) at the time of the commission of the offense
(2) result of SEVERE mental disease or defect
(3) was unable to appreciate the nature and quality of wrongfulness of his acts.
(4) The use of the word severe seems to have upped the threshold for even getting your foot in the door
for this defense.
Common/Modern Law: (MNaughten)
A person is not guilty by reason of insanity if:
(1) at the time of the committing of the act
(2) the party was labouring under such a defect of reason from, from disease of the mind [modern: mental
disease or defect]
(3) as not to know [either]:
(a) the nature and quality of the act, or
ppl who are delusional -- chocking someone but believe is squeezing lemons
even for SL crime like statutory rape, have to intend to engage in the act, if you dont know what
you are doing, cant be guilty.
(b) that he was doing what was wrong
Explained:
To be culpable, the defendant had to have known that he was doing a wrong or wicked act.
Distinguish from: whether the accused knew he was doing in reference to the law of the land.
(ignorance of law not mistake).
Mental abnormalities arent enough, must be mental disease or defect.
MNaghten + irresistible impulse:
Blake/Davis standard:
(1) incapable of distinguishing between right or wrong
(2) unconscious at the time of the nature of the act he is committing
(3) where his will, has been so completely destroyed that his actions are not subject to it, but are beyond
his control. -- irresistible impulse - Critique: standard is too demanding

MPC approach:
A person is not NG if:
(1) at the time of such conduct
(2) as a result of mental disease or defect
(3) he lacks substantial capacity either:
(a) to appreciate the criminality [wrongfulness] of his conduct or
(b) to conform his conduct to the requirements of law.
Important Characteristics:
substantial capacity
a capacity of some appreciable magnitude doesnt require a total lose of control.
appreciate:
more than just knowing what he did was wrong - this requires an emotional understanding and
appreciation that something is wrong (as opposed to just being able to verbalize it).
Durham product standard:
Not guilty by reason of insanity if:
The defendants actions are the product of the mental disease/defect. It must be a causal link, but for.
But for having the disease he wouldnt have committed the act.
Justification: dont want to punish ppl for having an illness
Critique: defendant isnt claiming he couldnt stop himself, but simply that he wouldnt have done if
had not been ill.
Burden of Proof:
All juris have presumption of legal SANITY.
In absence of evidence, the sanity of the defendant is presumed.
But juris vary in how much evidence is needed to rebut the presumption.
Some evidence of legal insanity; reasonable doubt about Ds sanity.
Once insanity becomes an issue: plaintiff shows mental defect + ONE of the effects on the mind.
Minority rule: prosecution must prove sanity of D beyond a reasonable doubt.
Args: not a mental disease, it was just an addiction; disprove all of the effects on the mind that
are relevant in the juris.
Majority rule: the defendant bears the burden of proving insanity (after Hinkley)
Definitions of wrong:
Whether defendant knew his act was wrong according to
Societys Legal standards (p. 907)
Requires that defendant to be UNAWARE that his conduct was LEGALLY wrong.
While ignorance of the law is not a defense, knowledge of the law is can defeat any MNaghten claim.
Societys Moral standards (p. 908)
D can be aware that an act is unlawful, but can not comprehend that the act is inherently immoral.
In these juris, knowledge of the acts legality will not defeat a MNaghten claim.
Exception deific decree: even if D knows that law and society will condemn her act, she will still do it
since must listen to god.
Belief that you are following the rules of your religion not the same thing.
If it is rules, you kind of pick and choose what you want to follow.

Automatism - Sane and Insane

Juris split between recognizing insanity and automatism as separate defenses and as classifying automatism
as part of the insanity defense.
Defendants options?
(1) Majority view: D may elect to plead either insanity, involuntariness, or both.
Justification: If no actus reus, isnt fair to discriminate between why.
(2) Some juris make them mutually exclusive.
(3) Minority (English view): When automatism (not conscious or not in control) results from a mental
disease of defect, D has to claim insanity, but if automatism from being sane can choose either.
NOTE, automatism - sane defense - if raised, must be proven wrong by the prosecution (because otherwise
state cant prove elements, i.e. actus reus, of the crime).
All approaches have to define what constitutes insane
For the forced choice approaches #2; #3 this definition is even more crucial, divides world into those
who can go home or get committed.
Possible approaches (p. 918):
Insane = internal or transitory (hypoglycemia); voluntary act = externally caused but lasting (brain
damage from drug use)
But sleep walker, not due to lack of sleep => insane
Doesnt seem to work well
Insane = those who would get treatment from mental health professionals
If someone gets off due to sane automatism, but then commits same offense again, since had notice of their
disorder would have difficulty claiming this again (e.g. choice not to get treatment is an earlier voluntary
act).
Sleep cases: if internal-external standard, D who has sleep disturbance may be barred from raising a
defense of sane automatism, and be forced to plead insanity (p. 919)
Remember MPC has sleep disturbance under exception for actus reus.
Diminished capacity:
D has a mental abnormality that prevents him from forming the specific mental state for the crime.
Shown by psychiatric testimony.
Like mistake of fact, intoxication.
Wilcox

*Brawner

MPC + a few states

Evidence of mental
abnormality
NOT admissible to show no
mens rea

Mental abnormality can be

used to show no mens rea for
specific intent crimes

Mental abnormality can be

used to show no mens rea for
ANY crime

Justification: flexible insanity

criteria (inbetween MPC and
MNaghten) gives room for
diminished capacity D to claim
insanity.
DC less generous than vol
intox. (harder to ascertain DC)

But cant be used for general

intent crimes

DC treated same as vol intox.

DC more generous than vol

intox (more culpable)

Possible Limitations:
Mitigation v. exoneration: diminished capacity only available for a specific intent crime that has a lesser
included offense.