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Criminal Law Outline
General Considerations of Criminal Law
Rationales Principle of Legality –
Definition of the Principle of Legality- Advanced legislation of criminal conduct
which forbids retroactive crime punishment
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Fair Warning – cannot punish someone for something they had no notice of
Deterrence –to deter a crime ,have to make the crime known to potential
criminal
 Political legitimacy- legislature elected by people- represent the will of the
people BUT Judges are appointed. Limits arbitrary adjudication to restrain
discretion / personal bias
 Limit arbitrary enforcement by police and prosecution
 Common Law implications: “Judicial creativity”- disallowed today –
everything must be prescribed in the statute contrary to Rex v. Manley
You can’t create new law BUT you can use what the common law already
came up with
Rex v. Manley
Manley charged with making false accusations about a mugging/robbery. The trial court
jury found that she was guilty of the offense. Appealed. Court of Appeals upheld the
conviction. Misdemeanor of committing an act intended for public mischief.
 Example of Judicial creativity – the judge created the crime of public
mischief
 Simply added Manley to the list of analogous example of public mischief: Rex v.
Sidley (standing naked on a balcony), Shaw v. Director (the ladies directory)
 This was a new crime, unprecedented
 Common Law = judge made law
Void for (because of) Vagueness Doctrine (a constitutional provision that can be
used under the model penal code and the common law)
The vagueness doctrine operationalizes the principle of legality (Advanced legislation of
criminal conduct which forbids retroactive crime punishment)
 lack of fair warning
Kolender v. Lawson – not guilty
Lawson was loitering around and could not provide credible and reliable information.
Court of appeals held that the statue was unconstitutional for vagueness-failed to give fair
and adequate notice of the actions prohibited.
Facial challenge can only be heard if it is unconstitutional in all respects (ie. It could
never be applied constitutionally; usually must have standing- either has been prosecuted
for violation of the statute of has good reason to believe he will be)
Lawson brought by the defendant convicted of criminal statute of requiring people who
wander the streets to provide “credible and reliable” ID and account for their presence.
Court determines statute to be too vague, specifically the terms “credible and reliable” ID
Concurring opinion: statute is violation of 4th and 5th amendments –being searched and
questioned without probable cause
Dissent: a criminal statute is not unconstitutionally vague unless it is vague in all its
applications, eg. If someone refused to provide any ID regardless of whether it was
credible or reliable that would be a crime under the law—how then can the law be
facially challenged as vague?
 invites arbitrary indiscriminatory enforcement
Papachristou v. City of Jacksonville
Two white women and two black men found guilty under an ordinance against
Statute allowed for general discrimination on vague descriptions of persons (wanton
persons, common brawlers, persons wandering etc.)
“rogues and vagabonds”. Court held that this was unconstitutionally vague
Why are some vague statutes still allowed? Tolerable
 Inability to make the laws more precise
 Vagueness does not turn on just language, but rather, a variety of factors
 Definition of a Criminal Act
Conduct must be in the definition of the offense to ensure fair warning and to be criminal
The first essential of due process is notice of the act /fair warning
Statutory Interpretation and Rule of Strict Construction –Common Law Doctrine
-Construe a penal statute as favorably to the defendant as its language and the
circumstances of its application may reasonably permit as in Keeler
-Where there is ambiguity, give the defendant the benefit of the doubt
Strict Construction under the Model Penal Code
Model Penal code §1.02 :
1)The general purposes of the provisions governing the definition of offenses are : (a)
to forbid and prevent conduct that is unjustifiably and inexcusably inflicts or threatens substantial
(b) to subject to public control persons whose conduct indicates that they are disposed to commit
crimes (c) to safeguard conduct that is without fault from condemnation as criminal (d) to give fair
warning of the nature of the conduct declared to constitute an offense(e) to differentiate on
reasonable grounds between serious and minor offenses.
MPC §1.02(3)
Keeler v. Superior Court of Amador County –not guilty
Defendant divorced from wife; wife got pregnant by other man; beats wife; kills fetus;
fetus was viable.(75-96% chance of living)
Court held that Penal code §187: “Murder is the unlawful killing of a human being” did
not apply to Keeler, as originally construed by authors in 1872 (strict construction)
Hence, his conduct was not prescribed in the statute so he is not guilty
Bouie supported Keeler-There can be no judicial enlargement of a pre-existing
statute were it is unforeseeable. Court found that since the black patrons were given no
notice that sitting at the restaurant counter was not allowed, they were not guilty.
In People v. Sobiek-guilty the Court of Appeals decided to not give the defendant Sobiek
the benefit of the doubt when they did not adhere to the ruling in People v. Brody
Sobiek guilty for embezzling partnership property from an investment club in spite of
People v. Brody – held that partner cannot be convicted of embezzlement for his reason
of being partner –partner is ultimate owner of an undivided interest and cannot be guilty
of stealing from himself (only “wholly another, not just another”). The court in Sobiek
viewed this as a misinterpretation of the statute. Stealing partnership shares is no different
from stealing from the property of a third party.
Why is judicial creation in Sobiek not unforeseeable as it is in Keeler?
The Court argues that social duty should have told Sobiek that what he was doing was
wrong.
-Judges do make law where ambiguity is left by the legislature
-The court must fill in gaps, often looking into the merits, social aspects as well as larger
legislative scheme. In this case they view morality as / social duty to determine whether
something is foreseeable.
The court says that “ In this case there is nothing in the MPC §484 which requires an
interpretation any different from that in MPC---even though California is a Model Penal
Code state the MPC is used.
Keeler –Human being
Unclear whether fetus is a human being
Statutory language
1850 statute based on CL
Common law
Some sister states had enacted feticide
statutes
Defining crimes is the responsibility of
the legislature; the statutory language is
unclear
Violation of due process
Developments in other
states
Strict construction
Fair notice
Sobiek –“property of another”
Unclear what “property of another”
means
Well-settled that a partner cannot steal
property from a partnership
Other states have adopted the MPC rule
Avoided b/c the court accepts its own
interpretation of legislative intent
Fair notice would only be deprived if
the penalty was unforeseeable
I.
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Omissions (Under MPC and Common Law)
Only relevant were there is:
A legal duty to act OR the crime says that omission is criminal
Legal duty to act established from: civil statute, relationships, contract, and
gratuitous bailee (person agree voluntarily to take on custody, preclude the
opportunity for another to take on the responsibility)
BUT if the person is required to act but the harm would have occurred
regardless then the defendant is NOT LIABLE.
Jones v. United States-not guilty
Woman neglects child she had no legal duty to take care of. No omission unless there is a
legal act no general duty to rescue
Commonwealth v. Konz- guilty
D1 Mother
D2 Evangelist
D3 Student
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Facts: P decided to withdraw from insulin treatment after meeting w/ D2, an
evangelist; D3, a student of P, also present; Saturday – P experienced acute need for
insulin, confrontation w/ D3 and D1 (wife), forced P into bedroom, P tried to call
police for help during that time, but unable to; P left two times after that, once by
himself and the other time to the hospital to pick up a friend
Returned from hospital, became violently ill Sat. night to Sun. morning, bedridden all
day Sunday
Ds kept P somewhat isolated, and visitors who came did not see him
Although P showed signs of insulin need, Ds sought no medical assistance
Trial court’s view:
o To be cause of death, prosecutor must show that decedent (P) would have
lived if D had done her duty at some point in time
 Sunday night – would have had 99% chance of survival at that time
 Condition deteriorated to a point that P was in need of immediate
medical attention she had a legal duty to act (the immeadiacy of
the act makes it a legal duty)
Dissent’s view:
o Competence is assumed in adults – choices should not be overridden when
adults can make their own decisions (suggests no real duty of care between
two adults who are competent to make their own choices) Proximate cause –
actions happening between the act and the actual death
o When P is helpless, then spouse has duty to help – physically helpless or
mentally incompetent
o D did have a duty to be on guard for the onset of helplessness
 D breached his duty, but causation not clear (unsure that if she had
done her duty that she would have been able to notice when he slipped
into state of helplessness)
People v. Robbins –not guilty
Same fact pattern as above. The court held the opposite
 that it would be too much of an extension of spousal duty
 competent spouse has the right to make his own decision.
People v. Beardsley – not guilty
Defendant brought the plaintiff to his house. They caroused and drank steadily for days.
Plaintiff took some morphine. Defendant moved her to another room when his wife
returned and she died. No duty to act if there is merely a moral obligation, there
MUST BE A LEGAL DUTY TO ACT
People v. Oliver –guilty
Defendant took some one who was extremely drunk into her home. She finds him
unconscious after doing heroin and placed him in a shed where he later died.
When one takes someone from a public area where others might have taken care to
prevent the person from injuring him/herself one creates a duty
Court held that the defendant should have known that her conduct had contributed to
creating an unreasonable risk of harmshe owed him a duty to prevent that risk by
summoning aid
Regina v. Instan –guilty
Defendants Aunt contracted gangrene and the defendant notified no one about her aunt’s
condition and the aunt died of gangrene and neglect; Defendant found guilty of
manslaughter.
“It is not correct to say that every moral obligation is a legal duty but every legal duty is
founded upon a moral obligation.”
Issues:
 Familial duty—aunt and niece?-shaky
 Implicit contract- you live with me a take care of –possibly inferred by actions,
but not given in the facts
 Defendant acted in a way so as to deter others from helping
Barber v. Superior Court of Los Angeles County-not guilty
Two doctors charged with murder and conspiracy to commit murder- unplugged the
intravenous tubes from patient
Case is act or omission depending on who commits the act or even more, who is
authorized to commit the act
Unlawful homicide if there is no legal duty to act. Cannot be simply an omission case
because that would legalize anyone without legal duty to commit such actions
Omission cases such as Barber are justified when society deems euthanasia to be
acceptable.
Legal duty does not mean a legal duty to save—it does not dictate how one should
act
II.
Requirement of a Voluntary Act
MPC 2.01
“A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act …..” MPC 2.01 (1)
-Crime cannot be predicated on status, propensity or desire to do something
Consideration for voluntariness:
 Must have control over will
 Involuntary act in a voluntary course of conduct
 There need only be one voluntary act
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Other Doctrines That May Exclude Criminal Liability for a Voluntary Act
Necessity
Duress
Insanity
Under Common Law –Conduct is presumed BUT under MPC, the voluntariness of
an act is determined on a case by case basis
People v. Decina -guilty
Epileptic seizure while driving and killed several children- not excused from liability
because there was some involuntary act, because he made the voluntary act of getting
into the car knowing he was likely to have a seizure
This case brings about the necessity to determine the forseeability that harm may occur or
that an involuntary act may occur
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Generally accepted involuntary acts : epilepsy, physical coerced movement,
reflex movements, unconsciousness (lacking minimum link between mind and
body). Impaired consciousness can potentially be judged involuntary (concussion,
somnabulism, hypoglycemia)
Conduct which includes an involuntary act does not necessarily preclude criminal
liability for other voluntary acts
Martin v. State-not guilty
Appellant convicted of being drunk on a public highway. The officers took him from his
home (while he was drunk) to a public highway where he used loud and profane
language. Public drunkenness is the crime, with the profanity as a manifestation of this.
The court found that a voluntary act was presupposed in the statute and so he could
not be guilty since he was involuntarily taken to the public area.
III. Possession (criminal possession)
Possession of something either is the result of an act or acquisition and /or it is the failure
to divest something were there is a duty established by the criminal law not to possess
 The Criminal Mind
Mens rea- “guilty mind”, essential requirement for the imposition of criminal liability
Act must be committed with the applicable mens rea requirement
The level of cognitive awareness is directly related to the level of culpability
Regina v. Faulkner
Regina v. Cunningham
United States v. Morrisette
Conduct: The defendant had a conscious objective or desire to engage in the conduct
Result: The defendant had a conscious objective or desire to cause the result
Circumstances: The defendant is aware of the circumstances or believes or hopes that
they exist
Ignorance or Mistake of Criminality
“ ignorance of the law is no excuse”
MPC §2.02(9)- criminal liability does not depend on the actors awareness of the
criminality of the conduct- “ ignorance of the law is no excuse”
State v. Fox- guilty
Fox charged with possession of huge amounts of ephedrine a controlled substanceclaimed he did not know possession of that much was illegal
Court rules that ignorance of the law is no excuse
Court is not saying that there is strict, rather it saying that a mistake as to the law is
not a defense. He made a mistake of law not a mistake of fact. Mistake of fact would
be “I took it thinking it was Tylenol”
Holmes- the goal of penal policy is not that men know the law but of inhibiting harmful
conduct
Lambert v. California-not guilty
She failed to register as a felon- mistake of fact- Court basically holds that you cannot
punish someone for conduct that even the most law-abiding citizen would no have
known to avoid- “ signal-less conduct”- no warning
Hopkins v. State-guilty
Reverend Hopkins told by his attorney that his sign intended to aid in soliciting or
performance of marriages was legal. The state Supreme Court held that “ a person who
commits an act which the law declares to be criminal cannot be excused from
punishment upon the theory that he misconstrued or misapplied the law”
State v. Striggles-guilty
The distributors of a gambling machine secured a decree and equipped themselves with it
as well as a letter form the county attorney and the mayor stating that their machine was
not a gambling device. Supreme Court of Iowa upheld his conviction. Cannot justify an
act saying that you did not know it was a crime.
Mistake in fact
Specific Intent*criminals
like this one !
-the defendant intends to
engage in additional
conduct e.g. “entering,
with intent to commit a
felony..”
-intends that the conduct
will have some future effect
e.g. “with purpose of
hindering prosecution”
-defendant must know that
one or more elements of the
AR exists e.g: knowingly
received stolen property
EXCULPATORY-if honest
Mistake in law
EXCULPATORY-some are
What does it mean?
General Intent
Any crime that does not
require S.I and that does not
impose strict liability
EXCULPATORY-if honest
and reasonable
INCULPATORY
Official Misstatement of the Criminal Law
Ignorance of the law is a defense if:
 The illegality of the offense is not published or made reasonably available, AND
he does not know
 Defendant acts on a later determined erroneous statement of the law
Cox v. Louisiana –not guilty
Defendant was convicted of violating a statute prohibiting one who pickets or parades
near a building housing state court” The conviction was reversed, the highest officials of
the state said it was fine. ---would be a kind of indefensible entrapment if the defendants
were found guilty
Mistake and culpability
MPC § 2.04- Ignorance or Mistake
(1)Mistake as to a matter of fact or law is an excuse if the ignorance negates the mens
rea- if an offense requires a prescribed mens rea for a given element, the absence of
that mens rea is a defense
(2) The law requires that the state of mind established by such intent constitutes a
defense
Common Law
Two types of MistakesMistake of fact --exculpatory
Mistake of law-- inculpatory
General Intent-fact-ex, lawinculpatory
Specific Intent-fact-ex, law inculpatory
MPC
Does NOT draw a line
between Mistake of Law and
Mistake of Fact
-Mistake of Criminal Law –
no excuse
- Mistake of Other Kind of
Law- excuse
Strict Liability
No mistake is
exculpatory!
State v. Woods-guilty
The defendant was convicted of violating the euphemistically called Blanket Act
“ Found together in bed with a man who was not her husband”
She claims she honestly thought the man’s divorce was final and so they were
committing no crime. Court says her mistake was a legal one- no excuse!
This was essentially a bigamy statute at common law , under MPC there is no adultery
defense. The crime that was really committed was a mistake of fact though
Marriage is not a criminal law concept thought so its regulation stems from noncriminal law
State v. Ackerly-guilty
Belief that his wife is dead is not an excuse- not a defense for prosecution for bigamy in
the attempt to remarry
State v. Audette-guilty
Court held that ignorance of the fact that the woman whom the respondent attempted to
marry had a living husband was a defense since he had been misled by her false
statements
Both of these cases show the courts diversity of opinion as to whether a mistake of fact
could be exculpatory  MPC decided to do away with the distinction which in many
cases is little distinction at all
Under MPC the only thing that would matter would be if the mens rea required by the
offense is negated by the mistake of the defendant. In this case Woods mistake could be
one of fact or law- equally appealing, but she was not mistaken about the meaning of the
law.
People v. Bray- not guilty
The defendant was convicted on two conunts of being a felonin possession of a
concealable firearm; the question was whether he knew he was a convicted felon. On
numerous occasions the defendant had made full disclosure of his situation and answered
that he did not know. Callifornia officials had permitted him to vote. Court reversed his
conviction saying that the jury had not been instructed sufficiently about mistake of
fact. Under MPC though this would be treated as a mistake of law and there would
be no defense
Steps in Deriving Mens Rea:
(1) Find the actus reus
(2) Apply mens rea culpability to each actus reus
(3) When you find the minimum mens rea culpability apply it to the case
Model Penal Code Culpability Structure
MPC 2.02 General Requirements of Culpability
(1) Minimum Requirements of Culpability- person is not guilty of an offense unless he acted P,K,
R, or N with respect to each material element of the offense
(2) Kinds of Culpability DefinedPurposely -person acts purposely with respect to a material if (i) it is conscious object to engage in
conduct of that nature or to cause that result (ii) if there are attendant circumstances which the
person is aware of or hopes exist
Knowingly- person is practically certain that his conduct will cause a particular result
Recklessly- person consciously disregards a substantial and unjustifiable risk that the material
elements exist or will result from his conduct- disregard = gross deviation from the standard care
that a reasonable person would take- KNOW THE RISK BUT STILL TAKE IT
Negligently- person should be aware of the substantial and unjustifiable risk that the material
element exists or will result from his conduct- disregard = gross deviation from the standard of
care that a reasonable person would take- BASED ON INATTENTION TO RISK
(3) Culpability required unless otherwise provided- When the statute does not prescribe the level of
culpability required for the crime the default culpability is R.
(4) Prescribed Culpability Requirement Applies to all Material Elements –If the law prescribes a
particular kind of culpability that is sufficient for the commission of the offense, without
distinguishing among the material elements that culpability applies to all the material
elements of the crime unless a contrary purpose is suggested
(5) Substitutes for Negligence, Recklessness and KnowledgeP- K- R N (descending order)
If negligence is sufficient to establish an element- PKR will establish culpability
If recklessness is sufficient to establish an element – PK will establish culpability
If knowingly is sufficient to establish an element- P will establish culpability
(6) Requirement of Purpose is satisfied if P is conditional-when a particular purpose is an element
of an offense, the element is satisfied even if the purpose is conditional ( unless the
conditional nature of it negatives the harms sought to be avoided)
(7) Requirement of Knowledge satisfied by High Probability- when K is an element of the offense,
K is established if the person is aware of the high probability of its existence UNLESS he
actually believes that it does not exist
(8) Requirement of Wilfulness Satisfied by acting knowingly-if the requirement is that the person
commit the act willfully, it is satisfied if the person committed the act knowingly
(9) Culpability as to the Illegality of conduct- Just because you did not know that the act constituted
an offense that does not mean that you are not guilty
“Neither K, N, nor R as to whether conduct constitutes an offense or as to the existence meaning
or application of the law…… is an element of the offense.”
(10) Culpability as Determinant of Grade of the Offense-When the grade or degree of an offense
depends on whether the offense is committed P, K,R or N its grade shall be lowest for which the
determinative kind of culpability is established with respect to any material element of the
offense
What if the offense is silent as to mens rea?
Recklessness is applied since R is the minimum culpability required for every
element of every offense absent specific provision in the statute
Recklessness is the default standard
What if the offense has ambiguous mens rea provisions?
False Imprisonment
§212.3- R is the mens rea since we don’t know if knowingly modifies “ restrains”
“unlawfully” etc. Under 2.02(4) since there is no distinction among the material
elements of the crime so knowingly applies to all elements
Reckless Burning
§ 220.1(2)- no ambiguity to resolve since in “ purposefully starts a fire..and recklessly
places another in danger of bodily harm” recklessly is obviously modifiying placing
someone in danger
Escape
§242.6(1)- “ fails to return to official detention following temporary leave granted”no mens rea in the definition of the offense so according to 2.02(3) the default
culpability is R.
Hindering Prosecution
§242.3(5)- “ if with purpose to hinder the apprehension, prosecution or punishment of
another for a crime, he..volunteers false information to a police officer”- purpose here
is highlighting an additional motive that must accompany the defendant’s conduct****KEY : to find out if the offense has any mens rea words, look to see if any of
the words address the defendants mental state.*******
Applying Mens Rea
Homicide is ranked in terms of cognitive investment by the actor
The effective meaning of general intent is negligence- “you should have known”
D.P.P v. Smith-guilty
Convicted of murder of police officer-officer noticed stolen scaffolding tips in the back
Claim that he “only wanted to shake him off the car” The House of Lords found that “
the law imputes to a person who willfully commits a criminal act an intention to do
everything which is the probable consequence of the act constituting the corpus
delicti which actually ensues”
The objective test of the reasonable man was correctly applied and the capital murder
conviction should be restored
Murder- homicide committed with malice aforethought- intent to kill, intent to harm,
reckless indifference to death, death occurred in the commission of a felonious intent
 1rst degree
 2nd degree murder
Manslaughter- homicide committed without malice aforethought.
 voluntary
 involuntary manslaughter- Negligence
Mens Rea and Intoxication
MPC 2.08(2) Intoxication
When R 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
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Under model penal code self-induced intoxication is NOT an excuse
Under Common law it IS an excuse if it negates the mens rea
General intent is equated with Negligence- intoxication is inadmissible as a
defense for a general intent crime
 Specific intent can or cannot mean that intoxication is exculpatory- Three S.I
crime U.S positions
(1) Virignia- Intoxication is not exculpatory
(2) California – MPC- intoxication is exculpatory if it negates mens rea
(3) Ohio- Intoxication is exculpatory if you lacked the capacity to perform S.I.-to be
excused the defendant needs to show that he did not have the intent AND he could
not physically have formed specific intent
D.P.P v.Majewski-guilty
Defendant committed assaults while he was under the influence of a combination of
drugs and alcohol. Court says his conduct- reducing himself to the state where he was
so drunk that he assaulted people is sufficient for a crime of general intent. No need
for specific intent to assault. It would undermine the justice system if alcohol could
be used as an excuse.
Mens Rea and Strict Liability
Strict liability is applied for public welfare offenses
Public welfare offenses – violations that resut in no direct of immediate injury to person
or property but merely create the danger or probability of it which the law seeks to
minimize
Penalties are normally small and convictions do little damage to an offender’s reputation
Even if you don’t have the required mens rea you are still guilty
United State v. Freed-guilty
The defendants were indicted for possession of unregistered hand grenades in violation of
a federal statute that carried a 10 year maximum sentence. The district court dismissed
the indictments because due process was denied due to failure to establish mens rea –
absence of scienter (knowing) The act required no specific intent or K as to the fact
that the hand grenades were unregistered. As with a drug dealer – the duty is on
them to find out if their acts are prohibited –the intent here is public safety and it
would hardly be surprising that possession of hand grenades is illegal.
United States v. YermianDefendant lied about his employment history and criminal record on a security
questionnaire. He was convicted of violating a statute that prohibited making false
statements to a federal agency. His sole defense was that he had no idea that the
statements would transmitted to a federal agency. Court of appeals reversed the
conviction but the Supreme Court reinstated the conviction. K and willfully
modified the making of the statements and no the predicate circumstances that a
federal agency is involved
Grading Elements and Strict Liability
Common Law
-The grade of the offense is based on
what was done not on what was thought
to have been done
M.P.C
-MPC 2.04(1) if there is no mens rea then
you are not guilty.
-Under MPC – mens rea is required with
respect to grading elements
Example: Even though larceny is a specific -MPC 2.04(2) – The defense of mistake is
intent crime, the value of the property
not available if the defendant would still be
relates to elements not included in the
guilty of another offense had the situation
specific intent. If the defendant stole a $100 been as he had supposed it. In such a case
watch and sold it for $5 he was at least
the defendant will still be charged with the
certain that he was committing petty
higher offense but his ignorance/ mistake
larceny and therefore there is no mistake of shall reduce the grade and degree of the
fact defense
offense to that of the offense he would
have committed had the situation been
as he supposed it.
Mens rea should be required as to those elements central to the wrongfulness of this
act. Liability should be strict as to the remaining elements of the offense.
Attempt
 Basic desire -------------------------------------------- completed offense
Unrealized intellectual commitment
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In every case of attempt the crime is not yet completed and so liability is
anticipatory before the crime has been completed
Grading in Attempt Since the act is not completed however it should be
regarded as an offense of lesser charge
TWO KEY STEPS:1)define the AR and MR of the underlying crime 2)
define the AR and MR of the attempt
Why the focus on conduct?
- Conduct corroborates the bad intention- it anchors the defendants guilty
-Want to demonstrate that the intent was not just a fantasy, daydream that does not
present a high risk of translation into conduct. With corroborative conduct we can
determine that the “daydream” would have been acted on
-We live a world with clear lines – do not want to make people liable for their
thoughts- relying on conduct is a safety net of sorts
People v.Bowen and Rouse - not guilty
Defendants found in the apartment of the plaintiff. Charged with attempted larceny in
a building. Found guilty. They appealed. They had not taken anything but the house
was in disarray and her jewelry was in suspicious places. Court of appeals found that.
 An overt act is not any act- it must be symbolic of the crime –they entered
her house on her permission- not symbolic of anything
 The jury was actually mis-instructed : attempted larceny would be justified if
there was an overt act going beyond mere preparation towards commission of
the crime ==if that was the instruction the appeals court would have would
have affirmed the jury verdict
“ The requirement that the jury find an overt act proceeds on the assumption
that the devil may lose the contest albeit late in the hour”
People v. Coleman Supreme court ruled that a defendant may not be convicted of an attempt unless he has
gone beyond acts of an ambiguous nature, or those that are equiviocal.”
Turner in article Attempt to Commit Crimes – “ his acts must be unequivocally
referable to the commission of the specific crime. The actions much speak for
themselves.
People v. Pippins
Defendant had on a prior occasion been found guilty of indecency and was found guilty
on a parole violation on evidence that he invited a 13 year old boy into his car—the court
held that the act was not an overt one and that it did not indicate more than mere
preparation
People v. Youngs- not guilty
The defendant armed with his revolver purchased cartridges and obtained an armed
accomplice, slippers to perpetrate a silent entry of the intended victim’s house,
chloroform to be used in the commission of the crime and had already set out for the
selected scene of the crime when he was arrested. Supreme court held that the defendant
had not gone beyond mere preparation
People v. Rizzo-not guilty
Defendants planned to rob Charles Rao, armed, set off in a car, went to the bank and
could not find the clerk or the money. Arrested.
Highlights focus on the proximity to the completed criminal offense-PROXIMITY
TESTS
Not guilty because they never achieved dangerous proximity to the actual criminal
crime of robbery- ---not dangerously close to the commission of the robbery
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Common Law asked:
“ How much remained undone?”- looking backward from the completed
action
Look backward from completed action and ask “what is missing?”
More concerned with results and outcomes
MPC asks
“ How close in proximity were they to the completed act?”- looking forward
from the defendants actions
Focuses on the dangerousness of the actors conduct
Have they taken a substantial step that if not frustrated now the crime will
happen?
Not saying that they did not have the intent but that the act was not strongly
corroborative of that intent
Look forward from the actors conduct and ask “Is the action a substantial step,
corroborative of intent?”
Concerned with action and intent
THINGS SEEM WORSE UNDER MPC BUT IT MIGHT ALL DEPEND ON HOW
SERIOUSLY SOCIAL CONTROL IS TAKEN- IF IT IS TAKEN REALLY
SERIOUSLY THEN YOU WILL NOT WANT TO WAIT FOR THE HARM
ULTIMATELY FEARED TO BE IMPENDING BEFORE YOU TAKE ACTION
The United States v. Harper-not guilty
Defendants had a plan to rob an ATM machine, police saw them sitting in a rented car in
the parking lot of the bank one night and searched them- had handguns, someone else’s
ATM card and cash. Under common law they would have been guilty but under MPC
they had not taken a step that was so substantial that if it was not frustrated the
crime would occur. Not close enough to the completed crime
People v. Adami-not guilty
Defendant was under investigation for the sale of narcotics. Had marital problems with
his wife and said he wanted to get rid of her. Defendant gave the “would-be assassin”
$500 to do the job, again the defendant said he was sure he wanted his wife killed.
Description of her car, what she looked like etc.The defendant was indicted for attempt to
commit murder. The court held that there was not enough indication of substantial
step, corroborative of intent.
Independent crime of criminal solicitation under MPC
MPC 5.02(1) – “ A person is guilty of solicitation to commit a crime if with the
purpose of promoting or facilitating commission he commands, encourages or requests
another to engage in specific conduct which would constitute such crime or an attempt
to commit such crime”
C.L Mens Rea
Mens rea of Attempt -Specific Intent Crime. The mens rea of attempt at common law
is intent to engage in all the conduct, result and circumstance elements that would
constitute a completed criminal offense
Attempt is A SPECIFIC INTENT CRIME UNDER COMMON LAW even though
the crime attempted (the underlying crime) may be a general intent crime.
Example: Breaking and entering is a general intent offense with the elements of
Breaking and entering. The mens rea for attempt to commit that offense would be intent
to break and enter the dwelling of another- a specific intent that encompasses all the
actus reus of the crime
If the offense is a specific intent crime, to be guilty of attempt the defendant must
have the specific intent for that offense
Example: Breaking and entering with an intent to commit a felony therein is a specific
intent crime. To be guilty of attempt to break and enter the dwelling of another the mens
rea for that offense would be an intent to break and enter the dwelling of another in
addition to an intent to commit a felony therein.
Designation of attempt as specific intent crime means ONE CANNOT COMMIT A
CRIME RECKLESSLY OR NEGLIGENTLY
Assume a crime “ recklessly causing the death of another” The defendant engages in
conduct that is sufficiently reckless to constitute this crime. By a miracle the plaintiff does
not die. This is not an example of attempt because the defendant lacked the specific intent
to “cause the death of another” not guilty of attempt
In a strict liability crime there must be a specific intent to engage in all of the actus
reus elements of the offense
Assume an offense “ sexual abuse of a person under the age of 10” Strict liability
applies. If the defendant tries to sexually abuse but assumes the person is 12 they cannot
be guilty of attempt to sexually abuse someone who is under the age of 10. Defendant
does not have the required specific intent
C.L Actus Reus
-The common law had three test to determine just how much conduct was enough to
constitute actus reus. Distinction between mere preparation versus acts which
constitute the beginning of an attempt.
Last Proximate Act whether the defendant has committed all of the intended conduct,
whether the last act necessary to complete the offense had occurred- inclusive but not
exclusive enough
The Physical Proximity test Whether the defendant’s act is sufficiently proximate to the
completion of the crime to constitute an attempt---is there much more left to be done? –
Circular in reasoning
The Probable Distance test- Whether it is probable that the defendant will not commit the
crime- indeterminate
The common law FOCUS on “how much more is there to be done?”- retrospectivelook back from the completed act and see how far off the offenders were from the
completion of the crime
Common law has not supplied a satisfactory inquiry/ test to determine when the actus
reus of attempt has occurred
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MPC Mens Rea
Under the model penal code ATTEMPT IS NOT A SPECIFIC INTENT
CRIME
Attempt liability means the mens rea for the attempted crime cannot be less
than the mens rea for the underlying crime
The mens rea of the attempt MUST BE THE SAME as the mens rea of the
underlying offense
Attempt is defined in
MPC §5.01(1): Attempt is divided into two categories :
1) Those where the defendant has completed all planned behavior but
has failed to accomplish the object crime (§5.01(a)(b)
Impossibility- dealt with below
2) Those where the defendant has not yet completed all planned
behavior and for that reason has failed to accomplish the object
crime dealt with §5.01(c)
Preparation – Attempt problem
The first step in establishing the mens rea of an attempt is to divide the underlying
offense into Actus reus: Conduct, Circumstance and Result elements and then allocate
mens rea to each, then do the same for the attempted crime (mens rea must be the same)
Conduct: the defendant must have a purpose to engage in all conduct elements of the
offense
Circumstance: The defendant must have the same mens rea for all circumstance elements
as is required for those elements of the underlying offense.
MPC §5.01(1) “ acting with the kind of culpability otherwise required for commission of
the crime”
MPC §5.01(a)-The defendant is punished based on the facts as he thought them
to be when he committed the crime
Result:
In case where the defendant has completed all the planned behavior the defendant must
have a purpose to cause any result elements of the underlying offense or must believe
that they will occur without further conduct MPC §5.01(b)
In the case where the defendant has fallen short of completing all the required behavior
the defendant must have purpose to cause any result elements of the underlying
offense MPC 5.01(c)
Additional Mens rea Requirement of the Underlying Offense
The defendant must have at least the mens rea required by the underlying offense. Thus
any additional mens rea requirements of the underlying offense must also be satisfied
Example: §221.1(1)- What are the mens rea requirements for the charge of attempt to
commit burglary
“ A person is guilty of burglary if he enters a building or occupied structure with purpose to commit a
crime therein…” MPC §221.1(1)
A.R analysis
Conduct- “ enters”
Result: no result required in underlying offense- no mens rea required
Circumstance: building or occupied structure, premise not open to public, actor not
privileged, building or structure not abandoned
MR Analysis
Conduct- mens rea must be P since the defendant must have purpose to engage in all
conduct elements of the underlying offense
Circumstance-2.02(3) – when culpability sufficient to establish a material element is not
prescribed such an element is established if the person acts P K or R with respect
theretoR The law of attempt requires that the defendant have the same mens rea for the
circumstance elements as is required for the underlying offense.
Any additional intent requirements for the object offense?
Yes- “ with purpose to commit a crime therein”
Complete picture of mens rea required to commit crime of attempted burglary §221.1(1)The defendant must have a purpose to enter, be R as to each of the circumstance elements
and have a purpose to commit a crime inside the building/ structure.
Recklessness and Negligence under MPC for Attempt
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Recklessness, negligence or SL might be sufficient mens rea for attempt under the
MPC only for circumstance elements
Example: If strict liability is applied to a circumstance element of a crime as it would
be to age element in §213.1(1)(d) then SL will also be applied to that element of an
attempt to commit the crime
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RECKLESSNESS OR NEGLIGENCE CANNOT SUFFICE FOR THE
RESULT ELEMENT OF ANY OFFENSE
Example: Conviction of an attempt to murder 210.3(1)(a) cannot be based on proof
that the defendant acted with R towards the death of another so as to be guilty of
manslaughter if the victim died-P to kill or if the defendant had completed all
intended behavior a belief that the victim would die would be required to satisfy
conviction for attempted person.
Conduct
Purpose
MPC
Circumstance
The mens rea of the
underlying offense
Result
Purpose
If all we needed for attempt
was R then every reckless
endangerment would count
as attempted reckless
homicide
People v. Thomas
Defendant convicted of attempted reckless manslaughter. Defense appealed that
intending and consciously disregarding the risk that the result will occur are
incompatible. Court reversed and Supreme Court of Colorado. The underlying crime is
reckless endangerment with mens rea of recklessness- same mens rea for
circumstance element of the attempted crime.
Reckless manslaughter offense requires:
-the actor had the intent to commit the underlying crime –( does not mean he intended for
death to occur in the case of reckless endangerment
- the risk producing act was a substantial step towards the commission of the offense
-The actor must engage in requisite acts or conduct with the culpability required for
the underlying offense
Thacker v. Commonwealth- not guilty
The accused tried to shoot the light out in a tent. Hit the headboard of bed where she and
her baby were sleeping. Defendant convicted of attempted murder. The Supreme Court of
Appeals of Virginia reversed.
Traditional approach is that attempt requires an intent to do the entire evil act.
“The intent in the mind covers the thing in part; the act covers it only in part”
MPC accepts the result in Thacker but not the claim that specific intent is required as to
all the element of the offense attempted
MPC requires purpose to engage in the conduct and result elements but the mens rea for
the C elements of the attempt are those that would be required if the offense were
completed.
MPC added §211.2- Recklessly endangering another person to deal with those casesIf you knowingly point a fire arm at someone whether or not you knew it was loaded you
are guilty of reckless behavior
MPC and the Actus Reus
Distinguishes between acts of preparation and acts that constitute the crime of attempt in
5.01(1)(c) : (acts elaborated in §5.01(2))
Substantial Step
The defendant must take a substantial step toward the commission of the offense. Focuses
on what has been done instead of what is left to be done
Strongly Corroborative of Actors Criminal Purpose
The defendants conduct – the substantial step that has been taken – must be strongly
corroborative of the defendant’s purpose to engage in the underlying offense
Illustrative Substantial Step
§5.01(2) contains examples of conduct that may be held to constitute a “ substantial step”
- Lying in wait
- Unlawful entry of a structure where contemplated crime will be
committed
- Enticing or seeking to entice the contemplated victim to go somewhere
for crime’s omission
- Possession of materials to be used in the crime
*****If any of these are strongly corroborative of the actors intent they should not
be held insufficient******
Impossibility in the Law of Attempt
Common Law
Factual Impossibility
The crime is impossible to complete
because of some factual situation
Example: no bullets in the gun
Considered an attempt so it is NOT A
DEFENSE
True Legal Impossibility
A defendant seeks to do something that if
completed would not be a crime
Example: Defendants intends to smoke
marijuana and believes that smoking
marijuana is a criminal offense even though
it is not. The defendant is not guilty of
attempt to smoke marijuana.
 The intent to smoke it was not the
mens rea for any crime
 That he thought it was a crime is
irrelevant the same way, believing
that what you were about to do was
a crime is not inculpating
Not considered an attempt so it IS A
DEFENSE
People v. Dlugash- guilty
Trial court jury found defendant guilty of murder even though by the time he shot the
victim (Geller), the victim was already dead. Court held that it would have been
murder if the attendant circumstances had been as the defendant had believed them
to be ( that Geller was alive).(Penal Law §110.10)
Penal Law §110.10- It is not a defense that under the attendant circumstances the
crime was factually or legally impossible of commission “ if such crime could have
been committed had the attendant circumstances been as such person believed them
to be.”
MPC
 Impossibility is a non-issue
 The issue is whether the defendant took substantial steps that were strongly
corroborative of intent
 Defendant CAN BE GUILTY OF AN OFFENSE WHETHER THERE WAS
FACTUAL OR LEGAL IMPOSSIBILITY
MPC §5.01
If the conduct constitutes a
substantial step that is
strongly corroborative of
intent to commit a crime,
legal or factual
impossibility is not an
excuse Example:
-lying in wait
-enticing the victim
-unlawful entry
-soliciting an innocent agent
-possession of materials to
be employed in the crime
MPC §2.02(9)
No mens rea required with
respect to the criminality of
one’s conduct
NOT KNOWING THAT
YOUR CONDUCT IS
ILLEGAL IS NO
DEFENSE
MPC §2.04(1)
A mistake is only
exculpatory if it negates
the mens rea. So factual or
legal impossibility does
not matter
Example: Since Dlugash
had the intent to commit
murder the fact that
factually he could not does
not mean that he is not
guilty—his intent is
inculpatory
 One exception
5.05(2), 2.12 – may reduce offense or dismiss case if D’s conduct extremely unlikely to result in
commission of crime (ex. someone w/ toy gun)
o inherent impossibility category permitted
Rape
Law of Crimes
 Specific offenses addressed in a
doctrine e.g. law of larceny, law of
rape
General Part of the Criminal Law
 Mens rea
 Actus reus
A substantive crime and the MPC conceptualization of rape is quite dated
Acquaintance rape:
No difficulty in confirming the rapist’s ID and that there was intercourse
The key in these cases is the circumstance, which is related to the way in which the crime
is defined
Three problems: Evidence- “stand off” , grading and sexual politics
Stranger Rape
Normally a huge challenge to law enforcement
Detectives essentially have to search the universe which is unrelated to the definition of
the crime
Common Law
Elements of the offense
 The woman establishes that she did not consent
 The man must have disregarded her resistance and used force
 The requirement that the woman resist is derived from these two elements and
verbal resistance did not suffice
No consent + he used force = she MUST resist
MPC
 Resistance is not a requirement so long as the victims is reasonably afraid,
the threat and the intimidation establish both force and lack of consent
 Feminist critique: force is present because consent is absent therefore, the
force requirement should be done away with
Grading
C.LDifferent forms of rape were placed into a single category for grading purposes
Rape = felony and punished at a very high level single category approach to rape
punishment
Rape was the other capital crime
Severe penalties because the focus was mainly on stranger rape
MPC –
Departure from the “single category for grading purposes”
Rape is treated as a differented offense e.g.: aggravated assault
MPC legislators created meaningful grading distinctions among different forms of
the offenses.
“Sexual assault” – common law crime of rape
Aggravated sexual assault – when the actor sexually penetrates the body of another
person under specified aggravated circumstances (10-20 years)
Sexual assault – actor penetrates the body of another by the use of physical force or
coercion but without severely injuring the person (5-10 years)
Fraud and Sex
1. Psychological CoercionCommonwealth v. Mlinarch- not guilty
Attempted rape charge for his sexual contacts with a fourteen year old girl. Mlinarch and
his wife had taken custody of the girl. He molested her and insisted that if she did not
submit he would send her back to the detention centre.
On appeal the intermediate court reversed the rape and attempted rape convictions saying
these crimes require “ forcible compulsion”. Supreme Court of Pennsylvania affirmed –
equally divided court- “ forcible compulsion” is not limited to physical violence but it
also includes “ psychological duress”. However it was felt that:
 Mlinarchs threats did not rise to that level- a threat inflicts psychological
duress only where it attacks the victims will rather than her intellect.
Dissent- “The question is not whether she could make a choice to yield or be
confined, but whether the law should allow such a choice at all.”
2. Extortion
i) Is sex a thing of value?
United States v. Hicks- guilty
The victim Julie was visiting her boyfriend at his military base. Sergeant Hicks told her
that her boyfriend would lose his pay and privileges and if she wanted to get him out of
that trouble she should have sex with him. He was convicted of rape and extortion of
sexual favors and sentenced to 30 years. Court of Appeals confirmed the conviction
Sexual favors do count as extortion if it leads to a threat and there is an intent to
obtain something of value
ii) Nature of the threat
Illegitimate threat must be distinguished from the process of bargain
State v. Hilton- not guilty
A man who had sexual intercourse with his 17 year old stepdaughter was accused of
incest and rape. To support the conviction the prosecution argued that the defendant had
extorted the sexual contacts because he demanded that the girl have sex with him for
permission to go places, do things or get things.
Appellate court reversed saying that:
 Sex was the price she paid for these things
 Difference between coercion and bargain
 There is a thin line between threatening to injure someone if they refuse to
submit and promising to compensate them if they acquiesce.-Distinction
evident in MPC where there is a lesser crime of sexual intercourse obtained by
non-violent threats MPC 213.1(1)(a) VERSUS “gross sexual imposition” where
man “ has sexual intercourse with a female….if he compels her to submit by any
threat that would prevent resistance of any woman of ordinary resolution.” MPC
213.1(2)(a)
iii) Should sexual harassment be a form of rape?
 Yes. A threat by a supervisor or a failure to promote an employee unless that
employee has sex with the supervisor is known as quid pro quo sexual
harassment.
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Title VII of the Civil Rights Act of 1964 and sate tort law provide civil remedies
to victims of such harassment
3. Sex by Fraud
Definition of fraud: intercourse procured by fraud is a case of fraud in the factum but not
in cases of fraud in the inducement.
Fraud in the factum: Deception that leads to a misunderstanding as to the fact itself e.g.
patient who is unaware that the act of penetration by the doctor is occurring because she
believes she is submitting to a routine medical examination or procedure.INCULPATORY FOR DEFENDANT
Fraud in the inducement
State v. Tizard- not guilty
Doctor fondled the plaintiff and the plaintiff returned because he wanted steroids. On
appeal the defendant argued fraud in the factum- not the case- he knew exactly what was
occurring! Yet Tennessee court of Criminal Appeals rejected the counter argument and
held that fraud was not limited to any particular type of fraud—any breach of legal /
equitable trust where there is undue and unconscientious advantage is taken of
another
EXCULPATORY FOR DEFENDANT
Why the distinction?
Sexual transactions are more likely to be motivated by mutual attraction – people have
sex for other reasons having nothing to do with inducement of fraud
Posner: “A person who has acted the fool is likely to feel slightly less offended at
having been fleeced.” Sex and Reason 392-93 (1992)
State v. Rusk- guilty
Plaintiff was choked by the defendant after she gave him a ride home and he took her
keys. He then raped her. Threat of force does not have to come in a particular fashion
and that she did not scream out for help or attempt to escape is irrelevant since she
was restrained by violence. Dissent: The jury said he was guilty but she did not
physically resist. “Surely she must have known they were not going upstairs to play
scrabble!”
M.T.S
Fifteen year old girl claimed she was raped by 17 year old male defendant. Were
previously engaged in heavy petting she had not consented to the actual sexual act.
Appellate court reversed trial court conviction stating that the only evidence of force was
the act of sexual penetration which by itself was insufficient to establish “physical force
element”. Supreme Court that : “the definition of physical force is satisfied.. if the
defendant applies any amount of force against another person in the absence of
what a reasonable person would believe to be affirmative and freely-given
permission to the act of sexual penetration.”
HER SAYING NO SHOULD BE ENOUGH! A judicial validation of the feminist
critique of the law of rape
BUT there is still gender repression according to feminists as concerns the force
requirement for criminal liability:
VERSUS
 Every act of sexual intercourse involves force, it is intrinsic in the event and so
the forcefulness should not matter, the lack of consent should
Nonconsent and Mens rea
C.L –
 Rape is a general intent crime and so a mistake is valid if it is honest and
reasonable
For a G.I crime the actus reus of the crime need not be completed
 Assault with intent to rape is a specific intent crime-there is an additional
element- do something but there is an intent to do something else
 Assault is a general intent crime
MPC- Negligence or Recklessness is required
Knowledge- required in some jurisdictions
State v. Smith –not guilty
Defendant convicted of sexual assault in the first degree- Defendant paid for her dinner
and expected to have sex with her, at T’s apartment he informed her that either he would
hurt her or she would go along with it and that she was going no where. She decided to
give in. Placed her pink cigarette lighter underneath the couch so that she would be able
to prove that she had been in the apartment. “If the conduct of the complainant could
reasonably be viewed as indicating consent to the act of intercourse defendant
should not be found guilty because of some undisclosed mental reservation on the
part of the complainant.” And “ Reasonable conduct ought not to be deemed
criminal”
Statutory Rape
 Sex with a minor is criminal
C.L
Strict liability crime
Mistake does not matter
Honesty and reasonableness do not matter either
MPC
Man has sex with a woman less than 16 years/ he is at least four years her senior
Defense of reasonable mistake MPC 213.6(1)(a) defendant has to prove by
preponderance of the evidence that he reasonably believed that she was older – rape –
third degree felony
BUT
If the child is ten years old or younger MPC 213.6(1) disallows a mistake of age
defense- under the moral wrong theory-rape –second degree felony
Many states have different age differentials between the plaintiff and the defendant
MPC in almost every jurisdiction has a distinction between sexual relations with a very
young child and sexual relations with an adolescent- less culpability
Garnett v. State-guilty
Raymond mental adolescent in an adult’s body-IQ of 52, 20year old with sociointellectual age of 12. Maryland statute has made it sufficiently clear that the second
degree rape statute does not require the state to prove mens rea strict liability
Dissent“Unreasonable to assume that legislature intended for one to be convicted under
§463(a)(3) …regardless of his or her mental state”
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Policy: as the age of consent got higher sexual experimentation between teens began
to fall under the category of statutory misconduct. Because of the huge number of
individuals who would be eligible for punishment enforcement of statutory law has
now become rather arbitrary—Miniscule # of these cases ever enter court
because there are so many of them.
Structural vagueness doctrine issue since the prosecution is essentially hand
picking the cases it wants to prosecute
Rape and Alcohol
The mistake of fact defense
Competence to Consent and Intoxication
Sexual intercourse with a person who is incompetent to consent to the act has long been
punished as a form of rape.
Incompetence: unconscious or asleep/ lacking the capacity to consent to sexual relations
Common Law
If the woman is so inebriated so as not to understand the “nature and consequences”
of her actions, then the man is liable for committing rape
MPC §213.1(1)(b)
A man has sex with a woman who is so drunk that she is unconscious- liability
applies only if he substantially impaired her power to appraise or control her conduct
by administering without her knowledge, intoxicants for the purpose of limiting her
resistance.
BUT
If a man has sex with a woman who voluntarily intoxicated herself then MPC says it
would be extravagant to give him total responsibility for the end result.
Insanity
The traditional functions:

Meant for those who lack free will and lack cognitive awareness and
blameworthiness
 Establishing why given particular circumstances a given person is inappropriate
for punishment
 NOT to be used by those who say: “ I didn’t mean to”
 TO BE USED- by those who say: “I meant to, but I am insane so..”
 Burden of persuasion for the insanity defense is on the prosecutor, beyond a
reasonable doubt
Common Law
There have been four major attempts to define the insanity defense and each of them has
two components:
1) the defendant must have been suffering from some recognized mental disease or
defect at the time of the crime
-Includes psychotic disorders that are “reality testing” not the range of temporary
emotional strains
- Not necessarily only those psychoses which are observable or measurably
physically
2) the mental disease or defect must have had a prescribed relationship to the
defendant’s behavior
1) The McNaughten Test
-The nature and quality of the act
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A person who does not know the nature and quality of his acts is incapable of
making proper choices  no mens rea no justification for imposing blame
At C.L mental disease or defect was not admissible on the ordinary mens rea
inquiry cannot use it to establish subjective mens rea.- today such evidence is
admissible
Remember that for general intent offenses at a mistake is exculpatory if it is
honest and reasonable one who is incapable of knowing the nature and quality
of the act will not be reasonable BUT McNaughten’s first branch- “ nature and
quality of the act” will allow these individuals to avoid punishment
-whether the act was right or wrong
A normal person knows that an act is wrong when he commits a crime
Purpose of first branch: to exclude those who do not perceived correct information
on which to make moral judgments from criminal liability
This branch will necessarily exclude these people so it makes the first branch
unnecessary.
What does it mean “to know”?
 One can “ know” and still yet lack an affective understanding of the nature and
quality of ones acts
 Cognitive / Intellectual knowledge only VS. emotional appreciation of the
wrongness
2) An irresistible impulse
 Focuses on the volitional capacity of the defendant—defendant’s capacity to
exercise control over his own will
 The difficulty with this is making the distinction between an impulse not resisted
and an irresistible impulse
3) The product test
 Rejects the volitional inquiry (irresistible impulse) and the cognitive inquiry focus
(McNaughten)
 Focus on whether the crime itself was produced by a mental disease no
liability
Rejected because it was too broad in scope and it ignores traditional moral criteria on
which criminal law is based reflected in mens rea and requirement of voluntary act
Model Penal code
 Insanity defense is defined in MPC §4.01 in reaction to acquittal of John Hinkley
 Does not say what mental disease or defect is but it says that sociopaths or person
with antisocial personality disorders are excluded from the insanity defense and
so is intoxication it self
 Elements of the offense: mental disease or defect at the time of the offense AND
relation of disease to behavior
The Question to ask:
Did the person a result of mental disease or defect lack the substantial capacity(no need
for total incapacity) to:
1) “ appreciate the criminality [wrongfulness] of his conduct” (cognitive)
 the use of appreciate instead of know indicates that the inquiry should
focus on affective knowledge not intellectual knowledge
 “Knowledge fused with affect”
2) “ to conform his conduct to the requirements of the law” (volitional)
 One who substantially lacks the power of acting by voluntary and free
choice to exercise control over behavior not regarded in criminal
law as a reasonable person (key point of criticism – impulse resisted or
impulse unresistable)
MPC §4.01
“ A person is not responsible if at the time of such conduct as a
result of mental disease or defect if he lacks the substantial
capacity either to appreciate the criminality of his conduct or to
confirm his conduct to the requirements of law.”
Joy Baker case
Joy Baker –claim of insanity when she killed her aunt. Really wanted to kill her husband.
Highly credible story. Whether she is legally insane depends on which test is used:
Shot her aunt once when she thought she was the devil and the second time to relieve her
of the pain. The first shot can get in under the MPC insanity defense but not the second
shot (emotion or guilt-driven)
GUILT DEPENDS ON THE TEST YOU USE!
McNaughten Test
An irresistible impulse
Product Test
MPC
- NO she was not unable to know the
nature and consequences of her actions
-NO she knew was not unable to tell the
difference between right and wrong =
GUILTY
-NO she did not have an irresistible
impulse more likely to be an impulse not
resisted
-NO the crime was not produced by a
mental disease (she was ‘sane’ before and
‘sane’ when interviewed)
YES she did not appreciate the criminality
of her act
YES she could not conform her actions to
the requirements of law
CONTROL AND INDEPENDENT EXCULPATION
In the past the only mental diseases that counted were psychoses since psychoses do not
affect compulsion the control branch did not matter
If you increase the scope of mental disease past psychoses you allow in other DSM
diseases in which control is at issue
Then there is a big problem because no one knows the difference between:
An impulse irresistible? AND an impulse not resisted?
CAUSATION does not = COMPULSION
“THE CONTROL TEST SHOULD BE ELIMINATED NOT BECAUSE IT IS
WRONG IN PRINCIPLE BUT BECAUSE IT IS UNADMINISTRABLE”- Bonnie
MENTAL DISEASE AND VOLITIONAL IMPAIRMENT
The volitional inquiry: could they have done otherwise? If no, no punishment
-When there is a long history of lack of control of conduct we know, descriptively, that
there is likely to be a volitional issue
-If you take the traditional view that mental disease or defect = psychoses, the
problem is that many of these psychoses do not affect volition
- Solution 1) expand the definition of mental disease or defect 2) Get rid of mental or
criminal act connection
United States vs. Torniero-guilty
Charged with ten counts of interstate transportation of stolen jewelry. He claimed
insanity based on his “pathological gambling disorder”
Pathological gambling did not affect his ability to transport stolen goods across the
interstate.
Medical law circularity—law depends on medicine to decide what is exculpatory and
medicine depending on law to avoid legal complications with classifications of mental
diseases.
Robinson v. California – not guilty
“ Addicts are not evil they are sick”
Should not punish people who are addicted for using substances to which they are
addicted
Powell v. Texas- guilty
Robinson was too liberal – “let them go approach”
Addicts are outside of the realm of help that does not mean that they are not
punishable
United States v. Moore- guilty
Charged with possession of heroin
Claimed that because of his abnormal psychological condition he lacked the substantial
capacity to conform his behaviour to the laws prohibiting possession
Addiction should not be a defense under insanity theory because it does not impair
ability to differentiate between right and wrong
DEFENSE OF ADDICTION IS NOT AN INSANITY DEFENSE
Overall consensus: Too much of a slippery slope to say that addiction is an excuse. It
is then robbery to feed the addiction is not a crime—absurd!
Illustrative cases of volitional impairment
When there is a history it sets up a better case for insanity than when there is one
isolated ‘insane act’
Barnes -18 year old man charged with six counts of arson and three counts of murder.
Fires aroused in him sexual feelings of seeing firemen in rubber clothing. Expert testified
that he was unconsciously unable to keep from an awareness that his acts caused harm
Murdock- one of three black patrons at a shop, white woman came in Murdock walked
out and an argument ensued between Murdock and one of his associates- racial epithet.
Murdock returned with a gun and killed several of the marines.
Ellingwood- carpenter with no history of criminal behavior was charged with criminal
homicide in the second degree –shot people with virtually no provocation- had an
underlying obsessive-compulsive disorder and hysterical personality disorder
Chester- Wedding day postponed for several reasons, he became perturbed and said it
was through. When he began to show interest again Beatrice seemed uninterested. He
was a heavily marijuana smoker –figured he could not live without her and shot her three
times through the door.- had a personality disorder
THE INSANITY DEFENSE AND INTOXICATION
Common Law
Voluntary Intoxication is NOT an excuse even if the defendant mental function was so
impaired by acute effects of alcohol or other drugs establish incapacity / unconsciousness
or insanity
Involuntary intoxication IS a defense if it causes all the same symptoms as required by
the insanity defense in that jurisdiction

Under common law involuntary intoxication is just like ‘insanity’- e.g.
if we were in McNaughten jurisdiction it would be an excuse if the
actor was unable to know the nature and quality of her acts or to know
that it was wrong
MPC
Involuntary intoxication IS a defense even though the term is never used
Terms used: “pathological intoxication”, “self-induced intoxication”
Intoxication is a defense if it negates the elements in a specific intent crime
Intoxication is NOT an excuse for a general intent crime
Voluntary Intoxication is NOT an excuse even if the defendant mental function was so
impaired by acute effects of alcohol or other drugs establish incapacity / unconsciousness
or insanity
-Impairment produced by voluntary intoxication is not exculpatory for general intent
crime ---voluntary consumption  inculpatory
-Even if you lack mens rea in definition of the crime you are still guilty because the
recklessness of consuming alcohol in the first place
MPC§2.08
1) Intoxication is not a defense unless it negates an element of the crime
2) If recklessness establishes an element of the offense then self
induced intoxication which makes him unaware of a risk is not an
excuse
3) Intoxication itself is not mental disease constitute a mental disease
within the meaning of §4.01
4) Pathological intoxication is a defense if at the time of conduct actor “
lacks substantial capacity either to appreciate its criminality or to
conform his conduct to the requirements of law
5) Definitions
Inculpatory alcohol use turn into exculpatory alcohol use with Pathological
Intoxication
When the impairment of cognitive capacity continues despite a return to sobriety”
The alcohol has triggered something
The effects of alcohol “outlast” its own presence
What would have been expected from the use of alcohol qualitatively changes
People v. Kelly –not guilty
Defendant charged with assault with a deadly weapon and by means of force likely to
result in bodily injury. Stabbed mother with an array of kitchen knives. Continual drug
user, schizophrenic. The normal effects of alcohol changed into a new qualitative
experience.
Psychotomimetic Drugs (hallucinogens)
Effects: depersonalization, illusion, visual hallucinations
Unlike with alcohol, the reality testing change is precisely what you anticipate --that is exactly the result that was aimed at
M.P.C and C.L
LSD does not merit a departure from traditional rule that a temporary mental condition
caused by voluntary intoxication DOES NOT constitute a complete defense
State v. Hall- guilty
Hall shot his driving companion after he took some LSD. Said the victim appeared like a
rabid dog because of the LSD effects. Jury convicted him of murder and the jury was not
allowed an insanity instruction.
Situational Excuse
An excuse is a defense provided because the defendant is not blameworthy for
having engaged in conduct that is socially undesirable. e.g. If you are under duress
and commit a theft, it is not conduct society would encourage but the defendant is not
punishable because he is not held morally responsible for the otherwise criminal behavior
Duress
Duress has nothing to do with voluntariness
Duress is distinct from an involuntary act defense
The defendant has is not unconscious and makes a choice, a hard choice- the offense v.
the unpleasant consequence
Elements of Duress:
 Coercion by another person
 Threat of Imminent Death or Serious Bodily Harm
 Reasonable Person would have been coerced
 Defendant Not at Fault, so duress is not a justification it is an
excuse. Excuses do not say that it was the right thing to do but
rather that it was an understandable given the circumstances
 Common Law—Duress did not apply to Homicide
 MPC-Duress applies to homicide as well. No offense is excluded from
§2.09
Contributory Actions of the Defendant
The defendant must show that he/she did not place him/herself in situation in which
it was probable that she would be forced to choose the criminal conduct
United States v. Willis- guilty
Willis convicted for possession of a firearm during an in relation to the commission of a
drug trafficking crime. Appealed that the BWS evidence should have been allowed to get
to jury. Court affirms decision, BWS –irrelevant.
Defendant put herself in the situation were she was forced to choose the criminal
conduct—no defense available under §2.09
Williams v. State- guilty
Williams coerced to do a drug run with a drug organization. He had voluntarily become
involved with the organization though.
Cout adopted reasoning of drafters of MPC that since recklessness placed Williams in
this situation and made others aware of his connection with Eubanks he is not
exempt from liability based on claim of duress.
Brainwashing or Coercive Persuasion
United States v. Hearst
The court is ungenerous with regard to the duress context because unlike in a duress
BWS case the victims in group subculture cases are innocent. Court it very reluctant to
delegate power to determine the norm to a subculture.
Situational Compulsion?
State v. Kelly –not guilty
BWS case—Kelly indicted for murder of her husband. Claimed that she did it in selfdefense- did not deny the murder. The court reversed the conviction
Issues:



Expert testimony allowed? Yes it is relevant – basis for whether he would
threaten again
Imminence—disadvantage is that with this requirement would mean she could
not justify her behavior till there was deadly imminent threat
Court not as liberal when BWS is used for duress- more sympathetic to the
subject of self defense than to the subject of duress
MPC §2.09- Duress
 An affirmative defense that the actor engaged in the conduct charged
to constitute an offense because he was coerced to do so by the use of
threat or force…which a person of reasonable firmness in his situation
would have been unable to resist.
 The defense is not available if the actor was R –placed himself in a
situation where it was likely that he would be subject to such duress.
Entrapment
Competing rationales on the way entrapment defenses must be dealt with:
a. Subjective Inquiry
Focus should be on the character and predisposition of the defendant and whether
they were “ an enticed innocent”
Two ingredients:’ innocence’ and police ‘enticement’
b. Objective Inquiry
Focus should be on police behavior and whether their power should be limited
The question: whether tactics used would pale unwarranted pressure to commit the
offense on the average person



MPC follows the objective inquiry and definition of entrapment
Serious crimes are excluded from entrapment defense—normally raised in
cases where there is no obvious victim or where the victim is unlikely to
complain—liquor, prostitution, narcotics. Etc.
Burden of proof falls on the defendant so does the burden of production.
MPC § 2.13
Two kinds of behavior can constitute entrapment :
1) MPC §2.13 (a)Knowing False Representations of Legality
Where the police misled the defendant as to the legality of the act of the behavior
now punishable
2) employing methods of persuasion or inducement which create a substantial risk
that the offense will be committed by persons other than those who are ready to
commit it
Cox v. Lousianna- not guilty
Defendant convicted of violating a statute the prohibited picketing or parading near a
building housing a state court. The presence of the highest police officials of a city and
the sheriff and the mayor effectively told the defendants that they could meet where
they did. The case was reversed
Raley v. Ohio- not guilty
Persons convicted for refusing to answer questions in the commission of a state
investigation when there was expressed or implied consent given to them by state
officials.
Due process does not permit convictions under such circumstances
2) MPC §2.13 (b) Substantial Risk that an Innocent will commit Offense
The objective inquiry is used in MPC. So the question is whether police tactics employed
created a “substantial risk” that criminal offense will be committed by persons “other
than those who are ready to commit it”
People v. Barraza- not guilty
Defendant charged with two counts of selling heroin to a female undercover agent.
Claimed the first sale had been made and he was entrapped into making the second.
Defendant insisted that he did not have any heroin when he was asked, she persisted even
though he expressed unwillingness to participate since he had been ‘clean’ for years. He
gave in to “get her off his back”.
Sherman v. United States
The courts refused to adopt the objective theory of entrapment, choosing instead to
recognize the defendants conduct and predisposition as relevant .
“There is s a line between a trap for the unwary innocent and the unwary criminal”
Major point about entrapment, duress and excuse is that human frailty exists and the
fact that the defendants’ acts were wrong but understandable because of circumstances
 Consistent with ideals of justice
 Inconsistent with goal of social control
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Defense of Public Authority and Mistake of Public Authority
Defense of Public Authority – when a public official is exempt from punishment that
would be afforded to an ordinary citizen who commits the same act
Common Law
An officer may use a defense of public authority as an excuse for deadly use of force
when it is reasonable- reasonably believed that it was necessary to enforce a valid
law, court order or process.
A mistaken belief is justifiable defense if the mistake was reasonable
A reasonable belief does not have to be an accurate belief
MISTAKE OF FACT (you are mistaken about whether deadly force was necessary or
whether warrant-less search was necessary) V. MISTAKE OF LAW(you are mistaken
about whether your act was lawful)
MPC
-Public Authority can be used as an excuse for use of deadly force in certain
circumstances. Deadly force is permitted only when authorized elsewhere in Article III
No Mistake of Law or Mistake of Fact
MISTAKE OF CRIMINAL V. NON CRIMINAL LAW
The Mistake of law mistake of fact distinction does not help.
The “ Miamians” did not make mistake about the content of the criminal law, rather they
made a mistake about a collateral body of law- the law of search and seizure
MPC §3.03 (1) says that conduct is justifiable when “required or authorized by
specified legal sources as well as by “any other provision of law imposing a legal
duty.”
Defense of Public Authority
United States v. Ehrichman -guilty
Prosecution associated with the Watergate scandal
Ehrichman convicted for conspiracy to commit burglary –recruited two Miamians search
Doctor Field’s office without a warrant. Defenses: The act was undertaken pursuant to
the President’s constitutional prerogative to authorize such search in the name of national
security. 2) warrant-less and thus unconstitutional but his reasonable belief that the
burglary was justified should excuse him from liability.
Mistake of law does not count as an excuse. Everyone is expected to know the law.
(this case was not really about a mistake of law though- mistake of collateral body of
law- non-criminal law)
Mistaken belief in Public Authority
United States v. Barker –not guilty
Foot soldiers used by Ehrichman. Defense: Their mistake was in believing that Hunt’s
order constituted legal authority. Court finds that even though mistakes as to legality
are not usually a defense there are exceptions e.g. in cases where there is an
overriding social interest in total reliance on public officials
Dissent- 1) Mistake of law does not negate legal responsibility 2) Clearly a crime of
malum in se and clearly outside the basic channels of law 3) Acting on emotion and
loyalty does not mean immunity from punishment
MPC sides with the dissent in this case
MPC §2.02 (9) – “Neither K nor R nor N as to whether conduct constitutes an offense or as to
the existence , meaning or application of the law determining the elements of an offense is an
element of such offense unless the definition of the offense or the Code so provides.”
Liable or not liable?
Argument for liability—if you afford people a defense of reasonable mistake they will
not be deterred
Argument against liability- if you punish public officials they will be reluctant to make
the tough choices and do their job,hampered by fear of punishment if wrong.
MPC 3.07(4)-a)
Defense for citizens who help police to make arrests that turn out to be unlawful
Justified in using force b) justified in using force in assisting private person or peace
officer without being summoned
Battered Women Syndrome
Three cycles :
 Tension Building
 Acute Battery
 Contrition---then it begins again
BWS arises when we are dealing with self defense
Two things the defendant must prove:
 Belief that the defendant felt she was threatened
 The type of belief that qualifies in reasonable belief
Evidence Admissibility
Normally evidence of past behavior is admissible
The admissibility of underlying evidence or prior abuse is given –do not need BWS for
this
Expert Testimony
An expert witness ties the story together with expertise
State v. Kelly-reversed conviction, new trial
Mrs. Kelly indicted for murder. Did not deny stabbing her husband but asserted that her
action was done in self defense. Conflict over whether the expert testimony about BWS
was admissible. Trial court found it inadmissible but SC of NJ said it was and that BWS
“has sufficient scientific basis to produce uniform and reasonably reliable results”
Substantive Law
MPC §3.04 (1)- The use of deadly force is justifiable when the actor feels that such force
is immediately necessary for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion
** Problem for BWS victims since many times the assault is not in response to
immediate aggression or force on the particular occasion
Justification
The General Principle of Justification- when the defendant has engaged in conduct
which the criminal law does not seek to deter or prevent
The conduct might even be desirable-e.g.: the police make a lawful arrest or it might be
regrettable e.g : killing another person in self defense
Self Defense
A defendant is privileged to use force against another in self defense when reasonably
believed to be necessary to defend against immediate unlawful force employed against
them by another.
People v. Goetz- not guilty
Goetz was illegally carrying a handgun. He used the handgun to shoot four youths when
they bothered him on the subway. The court held that the subjective standard, the
defendants own belief that the youth were about to injure him was sufficient to
justify the use of such force. Prior circumstances could provide a reasonable basis for
the belief that their intention was to harm. The case was to go to the jury.
MPC 3.07
Use of Force in Law Enforcement
3.07(1) –the use of force on another is justified if the actor is making or assisting in an
arrest and the actor believes that such force is immediately necessary to effect a lawful
arrest
Common Law
For self defense to be a justification the person needed to have reasonably believed that it
was necessary to defend himself- ---more than just belief---need ‘reasonable belief’
Elements of the Defense:
 Unlawful force by the Aggressor (physical)
Response to Deadly Force
-response to deadly force cannot be deadly unless the assault is deadly
- cannot use deadly force if there is the option of a safe retreat
 Imminence of force by the aggressor- immediacy
 Amount of responsive force permitted- the defendant may respond only with
proportionate force
 Reasonable belief in Necessity
Effect of Mistake
Mistake when the defendant is mistaken as to one or more of the elements of the crime
a) Reasonable Mistake of Fact or Judgment
If a mistake is “reasonable” the defense can still be utilized.
Any reasonable person in the same conditions would have made the same mistake
b) Unreasonable Mistake: Imperfect Self Defense
If the mistake is “ unreasonable” this unreasonable mistake negates “self defense”
defense and the defendant will be guilty of whatever offense was committed by the
conduct
The defendant will normally be convicted of murder or assault
BUT
There is a mitigating doctrine
******The doctrine of “Imperfect Self Defense” **** In some jurisdictions a
defendant who makes an honest but unreasonable mistake will be guilty of voluntary
manslaughter not murder
The Common Law and the Effect of Mistake
If you are right and reasonable
NOT GUILTY
If you are inaccurate but honest and
NOT GUILTY
reasonable
If you are inaccurate and unreasonable
GUILTY
Mistake of Law
Not being aware of the criminal law is not an excuse
If the defendant fails to retreat in a situation where the criminal law required retreat that
is not an excuse
Mistake of Non-criminal Law
Treated the same way as mistake of fact
Defense of Property
Force is not permitted when:
 There was adequate time to call on Law Enforcement
 There was no request to desist (unless the request would be dangerous or useless)
Acceptable amount of force permitted:
 Personal Property—use of deadly force is precluded for the sole purpose of
protecting personal property unless met with deadly force
 Defense of Habitation-deadly force can be used if the defendant reasonably
believes that the intruder intends to commit a felony inside, or threatens to harm
someone inside the building
 Use of Mechanical Devices—may be used if reasonable under the circumstances
 Prevention of escape—Under common law prevention of escape by the use of
deadly force was allowed.
 Unlawful Aggression-you can use deadly force against someone who is
unlawfully being aggressive towards you
MPC
MPC justifications defenses are in Article 3 and draw heavily from the common law
tradition
*******In general the MPC justification of self defense does not depend on the
accuracy of the belief but the existence of the belief********************
Elements of the Defense:
The defense is available if the person believed that the force is immediately necessary for
self protection MPC 3.04(1)

The retreat rule- MPC code rule—no defense of deadly force if there is an
avenue for retreat. Established in State v. Abbott
 The Castle Exception- When one is in his own home he is under no compulsion
to retreat and the use of deadly force is justified. No duty to retreat under such
circumstances. You have no duty to leave your home unless you are the initial
aggressor. If D is in his own home and he was the initial aggressor he should
retreat if he knows he can do so and get to complete safety
 Personal Autonomy- no one may be used as the mere instrument of another”Kadish
Mistake
The defense of mistake is developed in two steps:
1) Defendant’s belief
Defense is defined in terms of what the defendant believed
MPC 3.04(1) self defense is permitted if the defendant “believes” that the force is
immediately necessary for the purpose of protection against the use of unlawful force
of another on the present occasion
BUT
Whether the defendant was also be mistaken about whether the justifying factor existed is
important as well
2) The effect of mistake
 Mistake of Fact or Judgment
MPC 3.09(2) If the defendant is negligent/reckless in forming any belief that would
establish a justification, the defendant may be convicted of an offense for which
negligence/recklessness is the required culpability, so long as the elements of the
offense are otherwise satisfied
Example: Thus defendant who intentionally killed another but negligently formed the
belief that it was necessary to save the defendants life could be convicted of negligent
homicide under MPC§210.4(1)-Negligent Homicide (N)
Example: Thus defendant who intentionally killed another but recklessly formed the
belief that it was necessary to save the defendants life could be convicted of manslaughter
under MPC §210.3(1)(a)
The degree of the defendant’s crime is proportionally matched to the degree of the
defendant’s culpability.
Honest belief in the existence of justifying factors would be a defense to any crime
requiring a culpability of P or K
Example: Honest belief would be a defense to murder under §210.2(1)(a): “ Criminal
homicide constitutes murder when it is committed recklessly or knowingly”
Example: Honest belief would be a defense to murder under §210.2(1)(b): “ Criminal
homicide is considered murder when it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life
 Mistake of Law
If the defendant made a mistake as to the meaning of the criminal law, similar to the
case of an offense, it is NOT a defense
Mistake of Criminal Law
MPC 2.02(9)-Culpability is not required as to the application of the law determining the
obligation. If someone did not know of the law and used deadly force even in the
presence of a possibility of retreat, mistake is not a defense
Mistake of Lawfulness of force
MPC 3.09(1)- No defense if the defendant had an erroneous belief in the lawfulness of
his actions in self defense-translates to a mistake as to the provisions of the criminal law
Mistake of Non-criminal Law
MPC 2.04(1)(b)-mistake of fact or mistake of non-criminal law are defenses if “ the law
provides that the state of mind established by such ignorance or mistake constitutes a
defense
A defendant’s subjective belief is only a defense to crimes that require a culpability
level of P or K. The defense is taken away if the defendant is reckless or negligent
and is prosecuted for an offense for which R or N are sufficient.
MPC §210.3 Manslaughter
1) Criminal homicide constitutes manslaughter when :
a) It is committed recklessly ; or
b ) A homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is reasonable explanation or
excuse…
2)Manslaughter is a felony of the second degree
Guilty of a crime that requires R or N
MPC §210.4 Negligent Homicide
1) Criminal Homicide constitutes negligent homicide when it is committed
negligently
2) Negligent Homicide is a felony of the third degree
Guilty of a crime the requires N
MPC §210.2 Murder
A criminal homicide constitutes murder when:
a) it is committed P or K or
b) it is committed R under circumstances manifesting extreme indifference to the value of
human life
Murder is a felony of the first degree
Guilty of a crime that requires P, K, N
Defense Against Aggression
People v. Young- not guilty
Question was whether one can be held criminally liable for assault in the third degree if
he goes to the aid of another who he mistakenly believes is being unlawfully beaten and
therefore injures one of the apparent assaulters.
A youth was involved in disorderly conduct and two police officers were attempting to
arrest him when the defendant came to the scene and saw the youth being ‘assaulted’—
defendant got involved and a police officer had his knee cap broken.
One should not be guilty when one’s actions would have had the circumstances been
as one supposed them to be been commendable and heroic. Unfair and sterile of the
legal system to punish him
Defense of Necessity; Choice of Evils
Should the prohibitions of law be removed when a person commits a crime that would
otherwise be a crime but commission of the crime is a lesser evil than would occur if the
person did nothing? If the answer is yes then that is a defense of necessity
Common Law
A general defense of Necessity is available
Elements of the Necessity Defense:
 Emergency
 Defendant without Fault
 Avoid a greater Harm- The harm that can only be avoided by committing a crime
must be more substantial or more serious than that caused by commission of the
crime
Effect of Mistake at Common Law
Mistake as to whether there was an emergency (if reasonable) will not remove the
defense- INCULPATORY
Mistake as to whether the harm committed was substantially less serious than the harm
committed will remove the defense- EXCULPATORY
MPC
A general defense of necessity is available- MPC § 3.02 has left many things out but
the general defense of necessity is a residual defense that takes care of the
oddball/exceptional cases not included in self defense, defense of property and defense of
others
G.D.N is NOT available when the legislature has made a contrary ruling on the
matter i.e a jury cannot try whether or not the legislator got it wrong
Elements of the Defense:
 Belief in Necessity MPC §3.02(1)—Defendant must have believed that the action
is necessary to avoid harm or evil. The harm or evil does not have to be imminent
or an emergency or that there was no reasonable opportunity to avoid the evil
without committing a crime
 Avoid Greater Harm MPC §3.02(1)(a) provides that the harm or evil sought to be
avoided must be greater than the harm caused by commission of the offense
NOTE: NOT modified by the word “believed” a court not a jury/ defendant decision
 No explicit provision MPC §3.02 (1) (b)- States the principle of interpretation for
the courts to follow. Instructs the courts that they are not to strike a balance of
harms which has been struck differently in a different provision of criminal law
 Contrary Legislative purpose MPC 3.02(1)(c) Courts are free to hold that one
harm was greater than another and so a justification for a crime but only if the
legislature has not already expressed a contrary intent
Effect of Mistake in MPC
MPC § 3.02(2) – A mistake that is recklessly or negligently made is not a defense to an
offense requiring R or N as the case may be (Same way mistake would be treated under
2.09(2)
Mistake as to whether one harm outweighs another is not covered by §3.02(2).Mistake in
this area is fatal for the defendant
Effect of Fault in Bringing Situation About
MPC limits assertion of defense of necessity in cases where the defendant helped to bring
about the situation that created the ‘necessity’ Such as cases where:
 Defendant was reckless in causing the need for choice, the defendant may not rely
on the defense if the crime called for R or N
 Defendant was negligent in bringing about the necessity, the defendant may not
rely on the defense if changed with a crime that called for N
Commonwealth v. Markum- guilty
Individual convicted of damaging property of abortion women’s center. Defense: G.D.N
because the harm of killing innocent children greater than the harm of damaging
machines.Under Pennsylvania statute §503 the defense of necessity is justifiable if:
1) the harm is greater than the wrong conduct
2) If we defined a defense it is governed by statute not by jury—a jury cannot rule
that a statute is “bad law”
3) *****G.D.N does not exist to try at jury matters the legislature has already
decided on – Markum cannot change what the legislature has already ruled
on because decisions made at the level of society by legislature-stand!
Commonwealth v. Berrigan- guilty
Two brothers entered an electric plant and damaged hydrogen bomb missile component
and poured human blood on the premises. Defense: Choice of Evils. Court says no, an
arms control issue is a legislative issue not a jury issue, no second guessing of the
legislature.
Economic Necessity
State v. Mayfield –guilty
Woman lied about income on a welfare form so she could be eligible for more benefits.
Court does not grant her a defense of economic necessity –if it was insufficient for her it
would be insufficient for all. A legislative decision is controlling, cannot change
welfare sums by a jury decision
Historically the Constitution has not been construed to impose affirmative
restraints on the government. Constitution has SHALLS not SHALL NOT..
“THE SUPREME COURT IS NOT FINAL BECAUSE IT IS INFALLIBLE BUT
BECAUSE IT IS FINAL”
Medical Necessity
Sometimes used to defend against marijuana possession cases
The debate is taking place at the state level
The statute is based on aimed at punishing recreational users
**Some courts have allowed it, others have not***
State v.Tate-guilty
Tate was a quadriplegic –with such severe symptoms that he was often completely
disabled. Charged with possession of marijuana. Argued that his conduct was justifiable
because unlike conventional treatments marijuana eased the spastic contractions. The
court held that the legislature intended to preclude such a defense. The Therapeutic Act
had been authorized and so making this “special exception” available they intended to
exclude claims based on medical necessity in all other cases of medical possession.
Can still be prosecuted at the federal level despite what the state court allows
State v. Diana- not guilty
Exact same case- opposite result- Multiple Sclerosis case-The court found that the
legislature had recognized that in some case marijuana possesses medicinal benefits
that outweigh any harms its use inflicts
Necessity as a Justification for Homicide
Common Law
Self defense and other specific doctrines of justification authorized the necessary use of
deadly force against a wrong doer
Did not permit general plea of necessity to justify killing an innocent person in order to
avoid some other evil.
MPC- Contemplates that a defense of necessity may be raised where one innocent person
is killed in order to save others because of the importance of sanctity of human lifetaking a life might promote this value
Regina v. Dudley and Stephens – guilty
Prisoners decide to kill and eat the weakest boy on a boat on which they are stranded
No lots drawn –just decide to eat him
The court found the defendants guilty of murder, rejecting their necessity defense.
Temptation is no excuse, comparative measuring of lives is wrong
Necessity Created by Fault of the Actor
MPC and Common Law same
“Choice of evils defense” limited to cases where the necessity is occasioned or developed
through no fault of the actor”
Example: A becomes voluntarily intoxicated and in an impaired condition seriously
injures B. B needs medical assistance and A drives B to the hospital while intoxicated. A
is guilty of driving while intoxicated –choice of evils arose from A’s conduct