LSE Key Concepts: Criminal Law

WHAT IS CRIMINAL BEHAVIOR? MENS REA – INTENT

1. Conduct (not just thoughts) Types of Intent:
2. With a specific mental state (mens rea)
• Purposely (it is the purpose or goal to achieve a result)
3. That inflicts or threatens (causation)
• Knowingly (consciously aware that the result is likely;
4. Harm to individual or public interests
subjective and objective; result substantially certain to occur)
5. Without justification or excuse
• Recklessly (aware of substantial and unjustifiable risk)
• Negligence (should have been aware of substantial and
ACTUS REUS – CONDUCT unjustifiable risk; gross deviation from reasonable person)
1. Conduct • Intentionally (purposely or knowingly)
2. Causation • Maliciously (purposely or recklessly; probably also knowingly)
3. Social Harm • Willfully (intentionally, knowingly, “evil purpose,” and
• Conduct itself sometimes intent to violate law)
o Must involve an act (brain moving the body; outside force, • Corruptly, feloniously, fraudulently, designedly, wantonly
thoughts, status – not acts) • Strict liability (liability without regard to fault)
o Act must be voluntary (involves the mind, not just the
brain; involuntary acts are unauthorized by the mind; habit Proving Intent:
acts are voluntary) • Scope
 Martin v. State (drunk at home and then taken into public o Must be proven as to behavior and result
place by police; not responsible because he was not voluntarily o Attendant circumstance elements are often strict liability
in public) o Intent does not equal motive
Martin v. State variations Act? Voluntary? • Evidence:
o Confession or admission
Sober person who walks outside and o Circumstantial evidence (inferring intent from conduct and
drinks heavily; acts disorderly Yes Yes attitude)
o Motive
Drunk person who walks outside and
then acts disorderly Yes Yes  Regina v. Cunningham (removal of gas meter caused gas leak
and near asphyxiation of neighbor)
Drunk person who has a seizure,
falling outside Yes No Specific v. General Intent:
Drunk person carried outside at his • General intent: intent as to the basic conduct in the statute
request Yes Yes
• Specific intent: extra layer of intent, express or implied
Drunk person carries outside against o Acting to do a specific wrong in the future
his will No No o Acting with a specific motive or purpose
Walks outside; remains quiet; o Acting with knowledge of certain attendant circumstances
hypnotized by police and becomes
disorderly Yes No
Transferred Intent:
o Timing: act and mental state must occur together Defendant’s acts cause harm to a different victim, of a
(concurrence of the elements) different type, or to a different degree.
o Omissions: Common law (CL) imposes no duty to help • Intent does transfer to different victims
 Exceptions (very similar under MPC): • Intent does not transfer to different types of harm
1. Statute
(harm to people, property, or security)
2. Status- or relationship-based duty
• Liability attaches to the lesser degree crime
3. Contract
4. Voluntary assumption of care and seclusion
5. Creation of risk or danger
MODEL PENAL CODE CULPABILITY LEVELS
Hierarchy of culpability levels:
• Attendant circumstances (conditions that must be present 1. Purpose
in conjunction with conduct that constitute the crime) 2. Knowledge
o Objective facts only (e.g., whether a building is a 3. Recklessness
residence; whether it’s nighttime, etc.) 4. Negligence
*Strict Liability (implied) o Specific Intent – negated by honest mistake of fact, even
unreasonable
• Evidence proving higher levels also proves lower o General Intent – mistake must be honest and reasonable
• Each material element has its own culpability level o Strict Liability – mistake has no effect
• Strict liability can only result in fines, not jail time  People v. Navarro (D took wooden beams from construction
site that he thought were abandoned; negated specific intent)
Culpability Conduct Attendant Circ. Result • MPC: mistake of fact is a defense when it negatives degree
Conscious Conscious of culpability
purpose or N/A purpose or o No general vs. specific intent
Purpose object object
o No reasonable vs. unreasonable mistake
Aware conduct
Aware they Practically
is of a specified
exist certain
Knowledge nature CRIMINAL INTENT – MISTAKE OF LAW
Conscious Conscious
Usually, ignorance of law is no excuse. Here are the exceptions.
disregard of disregard of
N/A
sub. & unjust. sub. & unjust.
Recklessness risk risk Traditional/Reasonable Reliance (mistake as to the
Unreas. lack of Unreas. lack of definition or coverage of the law)
awareness of awareness of • Reasonable reliance on official statement of the law that
N/A
sub. & unjust. sub. & unjust.
authorized behavior at the time but was later declared wrong
Negligence risk risk
• “Official statement” sources:
N/A N/A N/A o Statute later declared invalid
Strict Liability o Judicial decision of higher court later overturned
o Official interpretation from person or public body
Ambiguities: charged with interpreting or enforcing the law
• No culpability level – at CL, check history; in MPC,  NY v. Marrero (C.O. believed he was covered by peace officer
recklessness is the default exception, but based only on his own interpretation; guilty)
• Multiple actus reus elements but one culpability level – single Elemental Claim (no knowledge of law whose statute
culpability level modifies all absent clear contrary purpose specifically requires knowledge)
• Only works with specific intent crimes
Intent Issues: • Reasonable mistake does not excuse general intent crime
• No general v. specific issues; every element needs own level  Cheek v. US (not guilty of “willful” tax evasion because D
• Transferred intent: intent usually is not transferred with 2 didn’t think he owed taxes on certain money)
exceptions: Due Process Claim (no fair notice of the law’s existence)
o Different victim (NOT additional victim) • Affirmative defense
o Different degree (liability attaches to lesser harm)  Lambert v. California (no notice that D had to register as a
 NOT different type felon w/in 5 days of moving, so no violation)
Factors: 1. omission, not action
CRIMINAL INTENT – STRICT LIABILITY 2. based on status, not activity
Punishment imposed without regard to D’s mental state 3. offense regulatory, not dangerous
MPC: Mistake of Law defense if:
• MPC: not incarceration crimes • If it negates culpability required (elemental)
• CL: look to congressional intent (express or implied) • If statute has not been made public (due process)
o Public welfare offenses • If reliance on official statement (reasonable reliance)
 US v. Staples (owning an automatic weapon is not inherently
dangerous + severe punishment = no strict liability; holding CAUSATION – ACTUAL CAUSE
does not go so far to say that absence of mens rea But-for Causation (the result would not have occurred when
requirement, default standard is knowledge) it did but for the D’s conduct)
 Morissette v. US (“knowing conversion” of property requires
• Temporal element is key
knowledge of ownership; collector who thought bomb casings Concurrent Sufficient Causes (CSC) (two Ds, acting
were abandoned is not guilty) independently, commit two separate acts, each of which is
sufficient to cause the result in question)
CRIMINAL INTENT – MISTAKE OF FACT • Not accomplices; both can be but-for causes
Honest mistake as to attendant circ. that the government Acceleration Causation (non-fatal blow accelerates death;
must prove as an element of the crime still a but-for cause)
• NOT an affirmative defense; goes to prima facie case • Only one D inflicts mortal bow
MPC: temporal and CSC but-for causation

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CAUSATION – PROXIMATE CAUSE Intent: Two levels of intent:
Once but-for cause has been found, is it fair to hold D guilty? 1. Intent to assist principal
2. Intent for underlying offense to occur:
Intervening Events:
o Intent for principal to commit actus reus
• Act of God
o Intent for principal’s acts to produce results
• Act of independent third party that aggravates or accelerates
o Intent as to attendant circumstances
harm, or unexpected manner of harm
• Intent re: actus reus
• Act or omission of victim
o Purpose, not just knowledge
o CL and MPC
Factors in Assessing Liability:
 People v. Lauria (phone service used by prostitutes; owner
• De minimis contribution (D’s conduct insubstantial compared
knew of but had no real interest in prostitution)
to intervening event)
• Intent re: results
• Omissions (rarely to negative acts cut off responsibility for
o If reckless or negligence required for underlying crime, MPC
affirmative act)
and majority require only recklessness or negligence from
• Intended consequences (if result wrongdoer intends comes
accomplice
about, even in a roundabout way, D is guilty; actual manner
 Minority requires purpose or knowledge
must match)
o If purpose or knowledge for principal, then purpose or
• Apparent safety (if victim reaches position of apparent safety,
knowledge for accomplice
D should no longer be liable)
• Intent re: attendant circumstances
• Free, deliberate, and informed human intervention (after D’s
o Little caselaw and MPC is silent
attach on victim, chain of causation won’t go back to D)
• Reasonable foreseeability (D can’t escape liability if
Extent of Accomplice Liability
intervening act was reasonably foreseeable)
Liability extends to any crime that is the natural & probable
consequence of the crime the accomplice wanted to result
MPC: asks whether result is “too remote or accidental”
• MPC rejects that rule; only accomplice’s own mental state

PARTICIPANTS IN CRIME HOMICIDE

Traditionally
Homicide: Killing of a person without justification or excuse.
• Principal in the first degree (“triggerman”)
Murder: Killing of a person with malice aforethought.
• Principal in the second degree (present and participates, e.g.,
Manslaughter: Killing of a person w/o malice aforethought.
lookout)
• Accessory before or after (not present, but gives assistance)
Four main types of murder:
1. Intent to kill (purposely or knowingly causing death)
Modern
2. Intent to cause great bodily injury (“GBI”) (wanting or
• Principal (person who commits the crime)
knowing actions will cause GBI, and death results)
• Accomplices (principals in the second degree, accessories
3. Depraved heart (acting with extremely reckless disregard for
before the fact)
human life, and death results)
o Principals and accomplices subject to full liability
4. Felony murder (acting with intent to commit a felony, and
• Accessories after the fact (lower liability)
death results)

ACCOMPLICE Two types of manslaughter:

Conduct: assistance, aid, encouragement 1. Voluntary (intentional) (intent to kill developed in the heat of
• Physical conduct (providing equipment, casing scene, passion, during that heat, result of reasonable provocation)
signaling/lookout, getaway driver, blocking victim’s escape) 2. Involuntary (unintentional) (death results from act done w/o
• Psychological influence (counseling, soliciting, encouraging) due caution; negligent homicide; misdemeanor manslaughter)
o Mere presence, uncommunicated intent, acquiescence –
not enough Murder Manslaughter
o Presence + support – enough (low bar) (Malice) (No Malice)
• Omission (duty to act but fails w/ desire for crime to occur) Voluntary
o Unsuccessful attempt to aid is not enough Intent to Kill Intent-to-kill murder manslaughter
• MPC Conduct: Involuntary
o Soliciting principal Intent-to-cause-GBI manslaughter,
o Aiding, agreeing to aid, or attempting to aid principal murder, depraved- negligent homicide,
o Having a legal duty but failing to take action No Intent to heart murder, felony misdemeanor
o Unsuccessful aid IS enough (CL minority, too) Kill murder manslaughter

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MPC Homicide: UNINTENTIONAL KILLINGS FROM RISKY BEHAVIOR
No degrees of murder E.g., firing gun into crowd, driving drunk, Russian roulette, not
No “malice aforethought” feeding child, unsecure dangerous animals, dropping heavy
Criminal homicide is the purposely, knowingly, items off a tall building
recklessly, or negligently causing the death of another. Second-Degree Murder (Depraved-Heart Murder) (death
Three types of MPC Homicide: resulting from acting with extreme recklessness and manifesting
1. Murder extreme indifference to the value of human life)
2. Manslaughter • Wanton, arrogant, conscious disregard for life
3. Negligent homicide • Objective components (e.g., risk of death); subjective
components (e.g., knew behavior put human life at risk)
INTENTIONAL MURDER Involuntary Manslaughter (consciously disregards risk to
First-Degree Murder – premeditated and deliberate OR human life (but not extreme disregard) or gross negligence –
statutory criteria (e.g., lying in wait, police officer) gross deviation from standard of care)
Second-Degree Murder – intentional, but not premeditated MPC:
Premeditation & Deliberation – heightened intent; planned • Extreme Reckless Murder (almost purpose or knowledge)
• Manslaughter (ordinary recklessness)
Premeditation Deliberation
• Negligent Homicide (gross deviation)
Forethought Reflection
Does not require
deliberation
Requires premeditation FELONY MURDER
Homicide caused during the commission or attempted
Takes time Takes time commission of a felony
• No mens rea as to homicide; only felony needs to be intended
Evidence: planning, motive, manner of killing, provocation, • MPC: commission of listed felonies creates a presumption
conduct/statements, ill will, additional blows, nature of wounds supporting “extreme recklessness” murder charge
MPC murder: homicide committed purposely or knowingly • Even without felony-murder statute, almost any felony-
 Midgett v. State (father who killed son in drunken rage murder charge could also be filed as intent-to-cause-GBI
showed no premeditation) murder or depraved-heart murder
 State v. Forrest (mercy killing of father constituted Limitations
premeditation) 1. Inherently dangerous felony (IDF) (only IDF give rise to
felony murder)
• Abstract approach: precedent or statutory elements (i.e., can
VOLUNTARY MANSLAUGHTER the crime be performed without substantial risk to life?)
Intentional killing done in the heat of passion, produced by • Facts of the case approach: was the manner in which D
adequate provocation, before D has had time to cool off; need committed the felony inherently dangerous?
causal connection between provocation, passion, and fatal act. • MPC: a list of felonies (like abstract approach) but both D and
Prosecutor can argue, based on the facts of the case, that
Traditionally limited categories (e.g., finding spouse in bed felony-murder charge is not/is appropriate
with another); now anything that could cause reasonable 2. Independent felony (no merger) (felony must be
person to act in an uncontrolled emotional state. independent of the homicide; is the felony assaultive?)
• Issue for the jury • Abstract approach: low-level homicides are always assaultive,
• Words are not enough non-assaultive crimes can be used, assaultive crimes cannot
• Reasonable person is average, sober, and “normal” mental be used
capacity; psychological issues not considered • Purpose approach: facts of the case; what was the
MPC: murder under extreme mental or emotional disturbance defendant’s purpose? If only to cause harm, not a predicate
Heat of Passion Extreme Emotional felony; if another purpose, can be used
(CL) Disturbance (MPC) 3. In furtherance…(killing must be part of the felony itself)
No link between
• Temporal connection: during commission, attempt, or escape
Must victim be Yes. If another killed, source of EED and
• Causal connection: but-for and proximate causation
provoker? must be accidental. victim.
o Agency rule (majority) – responsible for deaths caused by
Can’t claim
Cooling-off provocation after EED can build over felon and accomplices; not by police officers
time cooling off. time o Proximate cause rule (minority) – responsible for any killing
by felon, accomplice, or anyone else if the act was set in
Response intensity :: motion by behavior of felon or accomplices
Proportionality provocation intensity Not relevant

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ATTEMPT LIABILITY PROPERTY OFFENSES
With intent to commit a substantive offense, D intentionally Basic Theft Crimes
performs act that brings D close to committing target offense Larceny (taking an carrying away the property of another w/o
• Complete attempt (D does everything necessary to commit consent and w/ intent to permanently deprive)
target offense, but harm doesn’t result) • Virtually any movement = carrying away
• Incomplete attempt (D has taken some, but not all, steps • Any personal property
necessary for target offense) • Specific intent to permanently deprive owner (borrowing
doesn’t count, but destruction or conversion is not req.)
Conduct (Actus Reus) Embezzlement (theft of property given to hold temporarily)
• Complete attempt – same as for target offense • Often seen in cases with cashiers or auto mechanics
• Incomplete attempt – more than just “mere preparation” Larceny by Trick (theft of property given because D lies to get
o Temporal proximity b/w act and threatened harm owner’s consent)
o Seriousness of threat (more serious = earlier attempt) Theft by False Pretenses (obtaining title to property—not
o Strength of evidence of intent just possession—by fraudulent representation)
Jurisdictional Actus Reus Tests Burglary (breaking and entering a property with the intent to
1. Last Act (D performed all acts believed necessary for target?) commit a theft or felony inside that property)
2. Indispensable Element (last indispensable req. element?) • Actus reus is not the theft or the felony, but the breaking and
3. Physical Proximity (w/in actor’s power to complete crime entering with intent; crime is against the property
almost immediately?) • Nighttime might be an attendant circumstance
4. Dangerous Proximity (is D dangerously close to success?) Robbery (not a property crime) (theft by force or threat of
5. Unequivocality (D’s conduct unambiguously manifests force from the body of another)
criminal intent) • Crime is against the person
6. Probable Desistance (what’s the point of no return?) • Rightful owner can still be a robber if taking property by force
7. Abnormal Step (any step toward target beyond where or threat of force
ordinary person would go?)
8. MPC Substantial Step (purposely takes act that is a
CONSPIRACY
substantial step in course of conduct culminating in crime?)
An agreement, express or implied, between two or more
people to commit a criminal act or series of acts.
Intent (Mens Rea)
• Traditional CL: Nothing else required
Two intents required:
• Modern Law: Requires at least one overt act in furtherance
1. D must intentionally commit the acts = substantial step
• MPC: Conspiracy if D agrees with others to (1) commit an
2. D must act with specific intent to commit the target crime
offense, (2) attempt to commit an offense, (3) solicit another
W hat did D intent as to result?
to commit an offense, or (4) aid another person in planning
 People v. Gentry (husband pours gas on wife, who ignites by
or committing an offense
stove; attempted murder only if specific intent to kill her)
MPC attempt: purpose or knowledge of target crime; broad
Consequences of Conspiracy
• No attempted felony murder at CL (need specific intent)
• Pinkerton Doctrine (any member of conspiracy is
• No attempted depraved-heart murder (unintentional by def.)
responsible for any reasonably foreseeable crime committed
• Yes attempted voluntary manslaughter
by any other member in furtherance of that conspiracy)
• No attempted involuntary manslaughter
• D can be tried alone or jointly in venue of any overt act
• Hearsay from conspirators can prove co-conspirators’ guilt
Attempt Liability
Target Offense
Possible?
Proving Conspiracy
Intentional Crime Yes • Testimony of co-conspirators
Non-intentional Crime No • Circumstantial evidence

Attendant Circumstances Overt Act

CL: knowledge as to attendant circumstances required • Any act; does not need to be illegal
Modern Rule 1: knowledge not required; recklessness • Liability for conspiracy is earlier on the timeline than attempt
Modern Rule 2: knowledge not required; proof of mens rea for • Overt act can be done by any conspirator and all are liable
underlying/target offense (MPC rules) • MPC has dropped overt act requirement for serious offenses

Affirmative Defenses Intent – two specific intents required

Factual impossibility (not a defense at CL or MPC) 1. Intent to agree
Abandonment (can D abandon after crossing attempt line? 2. Intent to successfully commit the crime
Depends on how close to committing target offense) • Purpose is required; can be inferred from circumstances

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Conspiracy with Undercover Officer? DEFENSES
• At CL – no two-person conspiracy with undercover officer Strategies
• MPC – yes two-person conspiracy with undercover officer Procedural Bars (public policy limitations) (no ruling on the
merits; case is dismissed or not filed)
No Merger with Target Offense • Statute of limitations, immunity, defect in the pleading
• Can be convicted of conspiracy and target offense Failures of Prosecution’s Proof (poking holes in the theory
• Can be convicted of conspiracy even if acquitted of target of proof on any element)
• MPC: merger; can’t be convicted of both • Mistake of fact, mistake of law, proximate cause
Defenses Specific to the Crime Charged (after prosecution
Shapes of Conspiracy (Wheel v. Chain) has closed its case-in-chief)
Is there one big conspiracy or several small ones? • Abandonment of an attempt crime
 Kotteakos v. US (one broker and 31 seekers of fraudulent Justification (D’s acts were morally right)
loans; whether there was one conspiracy with 32 participants or • Self-defense, necessity
31 conspiracies depends on awareness of other conspirators) Excuses (acknowledges crime, but D shouldn’t be blamed)
 Blumenthal v. US (distillery owner, distributors, retailer or • Infancy, insanity, duress, due process mistake of law,
illegal whiskey; D knows of other conspirator’s involvement, also reasonable reliance mistake of law
responsible for their crimes.)

Defenses
SELF-DEFENSE AND DEFENSE OF OTHERS
• Impossibility is not a defense at CL or MPC • Reasonable amount of force
• Abandonment or withdrawal: o Can use deadly force to meet threat of deadly force, non-
o CL – must communicate w/d to each co-conspirator; no deadly force with non-deadly force
liability for subsequent crimes (but not retroactive) o Deadly force is intended or likely to cause death or GBI
o MPC – must renounce criminal purpose and thwart success o Must be proportionate
of enterprise to have a full defense o MPC: deadly force may be used to prevent rape or
kidnapping
• Reasonable and sincere belief necessary
RAPE AND STATUTORY RAPE o Danger must be imminent (pressing or urgent)
Knowingly having sexual intercourse with another person o Non-aggressor (first aggressor—the one who “ratchets up”
without that person’s consent. to deadly force—cannot later claim self-defense)
• Modern laws are gender neutral o Words are not enough
• Some form of marital immunity in minority of jurisdictions o MPC: first person who purposely provokes deadly force
cannot use self-defense
Actus Reus – Nonconsent o Withdrawal (retreat and communicate intent to withdraw)
• Proof of force or threat of force AND/OR proof of resistance  US v. Peterson (D who went after thief of wipers with a pistol
by victim was not entitled to use deadly self-defense, even when victim
• “No” had responded to pistol with lug wrench)
• Absence of affirmatively expressed consent o Retreat – traditionally, retreat was necessary if possible
• Other forms (e.g., drugged, unconscious, mentally disabled)  Slight majority: no duty to retreat (“Stand Your
• Rape by fraud? Ground” laws)
o Fraud in the inducement: convincing someone to have sex  Minority and MPC: still a duty to retreat if safe;
by telling lies (e.g., about willingness to marry) – NO RAPE even in these jurisdictions “Castle Doctrine” says no
o Fraud in the facts: telling someone penetration is with a duty to retreat if attacked in own home.
medical instrument – RAPE o Reasonableness is an objective standard
 Unreasonable belief gives rise to voluntary
Mens Rea – D’s knowledge of Nonconsent manslaughter in minority of jurisdictions (“imperfect
• Recklessness (honest mistake about consent, reasonable or self-defense”)
unreasonable) • Defense of Others (right of intervenor is co-extensive with
• Negligence (honest and reasonable mistake) victim’s right to use force in self-defense)
• Strict liability (no mistake is permissible) o Force must appear reasonably necessary (need not be
• D’s will argue proof of nonconsent (actus reus) first, before correct)
claiming mistake o MPC: no more force than third party would use; actually
believe force is necessary; unreasonable use can give rise
Statutory Rape (sexual intercourse with a person who is not to reckless/negligent homicide
old enough to provide consent; negligence or strict liability)

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NECESSITY FUNCTIONS OF PUNISHMENT
a.k.a. Choice of Evils Doctrine (D’s acts, though illegal, were The state’s deliberate infliction of suffering an stigma on an
necessary to prevent an even greater harm from occurring; no individual who has done something wrong.
lawful alternatives) Forms: fine, probation, community service, imprisonment,
• Clear and imminent danger execution, ancillary penalties
• Action will abate the danger (direct causal claim between Moral Justification (supported by good reason and
action and harm) proportional to its purpose)
• No reasonable lawful alternatives
• Harm is less serious than the harm trying to prevent Utilitarianism Retributivism
o Reasonably foreseeable harms Justification lies in the useful Punishment is justified
o Facts as they reasonably appear purposes that punishment because the offender
o Harm avoided > harm caused (NOT equal to) serves. deserves it.
• Choice does not contradict legislative history
• Clean hands (D is not responsible for the situation) Utilitarianism (useful consequences of punishment)
• MPC: notable changes – no clean hands requirement (though • Deterrence (individual and general)
D could be prosecuted for recklessness or negligence); • Rehabilitation
imminence is not required (but is considered); no distinction • Incapacitation (prevention)
between natural and man-made forces • Legitimization of the legal system
• Not generally a defense to homicide • Norm reinforcement and expression
 Regina v. Dudley and Stephens (lifeboat inhabitants drew • Restitution and healing for victims
straws to kill and eat one to avoid starvation; court said no
necessity defense; can’t impose comparative value to lives) Retributivism (punitive)
o MPC: does not rule out choice of evils in homicide context • Symbol of hate that D should feel
• Treats wrongdoer with dignity as a full human being
EXCUSES responsible for choices
D acknowledges crime, but should not be blamed or punished • Repaying debt to society
because of circumstances
Infancy (D not old enough to understand actions) Quantity and Type of Punishment
Duress (D acting under threat of GBI)
• Threat must involve threat of serious violence (not economic Utilitarianism Retributivism
or embarrassment) by another person Depends on how bad act
Depends on how much
• Use of force must be imminent (not future) was, how much harm was
punishment is necessary to
• Threat must be directed at D or someone close to D cause, and how bad we
deter/rehabilitate/incapacitate,
• Clean hands think the actor is; can be
etc.
• Severity (threatened force need not exceed crime committed) mitigated by circumstances
o Not available as a defense to intentional homicide
• Coerced party is acquitted; coercing party should be Unpleasantness: assumption is that prison time will be
convicted of the offense committed experienced as a form of pain (not always the case)
• MPC: “person of reasonable firmness” replaced CL elements;
can raise in a homicide prosecution Reasons Not to Punish
Insanity • Cost
Affirmative defense; D must produce evidence regarding mental • Criminal education in prison
condition (preponderance or clear and convincing evidence) • Loss of industry or parenting time
• D must prove mental disease or defect and that because • Brutalizes offenders and society
of that defect: • Fear of punishment can affect integrity of legal system
o M’Naughten: D did not know the nature and quality of
the act AND/OR did not know it was wrong
o Irresistible Impulse: Lost power to choose b/w right and
wrong OR actions were not subject to free will
o MPC: lacked substantial capacity to appreciate
criminality of the conduct or conform conduct to the law

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