CRIMINAL LAW

Prof. Dolovich

I. WHAT IS PUNISHMENT?......................................................................................................3
UTILITARIAN........................................................................................................................3
RETRIBUTION.......................................................................................................................3
II. DEFINING CRIMINAL CONDUCT.....................................................................................4
ACTUS REUSCULPABILITY...............................................................................................4
VOLUNTARY ACTS..............................................................................................................4
OMISSIONS............................................................................................................................5
MENS REA.................................................................................................................................7
COMMON LAW.....................................................................................................................7
MODEL PENAL CODE 2.02................................................................................................8
ISSUES WITH MENS REA....................................................................................................9
III. HOMICIDE...........................................................................................................................10
MURDER..................................................................................................................................10
COMMON LAW...................................................................................................................10
PROBLEMS WITH THE DIVISION....................................................................................11
MODEL PENAL CODE210.1.........................................................................................11
DEPRAVED HEART MURDER..............................................................................................12
FELONY MURDER..................................................................................................................14
INHERENTLY DANGEROUS FELONY LIMITATION.................................................15
"MERGER DOCTRINE" LIMITATION..............................................................................16
KILLINGS NOT "IN FURTHERANCE" OF THE FELONY LIMITATION......................18
MODEL PENAL CODE210.2.........................................................................................19
MISDEMEANOR-MANSLAUGHTER RULE (UNLAWFUL-ACT DOCTRINE)...............20
MANSLAUGHTER..................................................................................................................21
VOLUNTARY MANSLAUGHTER.....................................................................................21
INVOLUNTARY MANSLAUGHTER.................................................................................25
IV. MISTAKE...............................................................................................................................27
MISTAKE OF FACT.................................................................................................................27
STRICT LIABILITY.............................................................................................................29
MISTAKE OF LAW..................................................................................................................32
JUSTIFICATIONS:...............................................................................................................32
EXCEPTIONS:......................................................................................................................32
MODEL PENAL CODE........................................................................................................34
V. RAPE........................................................................................................................................35
ACTUS REUS...........................................................................................................................35
FORCE..................................................................................................................................35
NONCONSENT....................................................................................................................38
MODEL PENAL CODE213.1.........................................................................................38
MENS REA...............................................................................................................................39
MENS REA STANDARD.....................................................................................................39
NONCONSENT....................................................................................................................39

VI. EXCULPATION....................................................................................................................40
JUSTIFICATION.......................................................................................................................40
SELF-DEFENSE...................................................................................................................40
MODEL PENAL CODE3.04...........................................................................................41
SELF-DEFENSE AND RACE..............................................................................................41
HONEST BUT UNREASONABLE BELIEF.......................................................................42
BATTERED WOMAN SYNDROME...................................................................................42
2 DEFINITIONS OF IMMINENCE.....................................................................................42
EXCUSE....................................................................................................................................43
DURESS................................................................................................................................43
MODEL PENAL CODE2.09...........................................................................................45
NECESSITY..........................................................................................................................46
INSANITYEXCUSE.............................................................................................................47
M'NAGHTEN TESTCOMMON LAW RULE..................................................................47
ALTERNATIVES..................................................................................................................49
VII. SENTENCING.....................................................................................................................51
SENTENCING PROCESS....................................................................................................51
VIII. DEATH PENALTY............................................................................................................52
EIGHTH AMENDMENT......................................................................................................52
FOURTEENTH AMENDMENT...........................................................................................52

I. WHAT IS PUNISHMENT?
Punishment: suffering purposely inflicted by the state because one of its laws was violated. It
connotes a blaming, a stigmatizing, of the perpetrator
Two purposes to punishment:
1. Utilitarianism
2. Retribution
UTILITARIAN
Punishment is itself an evil because it deliberately inflicts harm on human beings. Therefore, we
should hurt criminals only if some good is achieved. What is that good:
Deterrence: punishment of a criminal (Defendant) reduces future crime in two ways:
Specific Deterrence: Defendant can decide not to commit future crimes or
General Deterrence: Other persons, contemplating committing crimes and learning of the
threatened punishment, will decide not to do so.
The pain threatened must be greater than the pleasure that Defendant thinks he will attain by
committing the crime.
o The premise is that criminals balance these pleasures and pains
However, there are too many variables to measure accurately the actual deterrent effect:
o E.g. if the legislature increases the penalty for burglary, and the rate of burglaries thereafter
decreases, it is very difficult to prove that the threat of increased punishment caused the
decline. All the burglars may have already been put in jail
It is the threat and not the actual punishment that brings about deterrence. If it were possible to
threaten punishment but never impose it and yet achieve the same amount of deterrence, punishment
would be unnecessary.
Incapacitation: must either:
Punish for lengthy periods of time every person committing the same crime equally or,
Assume that they can accurately identify those who are most likely to reoffend and impose on
them lengthy periods of incarceration.
Rehabilitation: offenders can be changed into nonoffenders if given proper treatment
RETRIBUTION
Persons who choose to do wrong acts deserve punishment.

Unlike utilitarianism, which looks to effects in the future to justify the imposition of punishment,
retributivism looks backward to the past act that the criminal chose to commit.
Difficulty in explaining how punishing the criminal makes up for the injury that Defendant inflicted
on society.
Critics argue that the theory validates hatred: its morally right for the public to hate criminals
Regina v. Dudley and Stephens: You cant separate morality entirely from the law
Defendants were stranded on a boat in the middle of the sea for 20 days with minimal food and water.
They killed one man on the boat to survive. Whether killing someone to save your life, given that that
person poses no threat to your life, is murder. HELD: it is murder. A man has no right to declare
temptation to be an excuse to change or weaken in any manner the legal definition of the crime.

II. DEFINING CRIMINAL CONDUCT

Three principles limit the distribution of punishment:
1. Culpability (Actus Reus): safeguard conduct that is without fault from condemnation as criminal
2. Proportionality: to differentiate on reasonable grounds between serious and minor offenses
3. Legality: to give fair warning of the nature of the conduct declared to constitute an offense
ACTUS REUSCULPABILITY
It is the physical, or external, component of the crime.
TWO ELEMENTS
1. Voluntary act; or an omission to perform an act, under circumstances in which the defendant
had a lawful duty to act, and
2. Social harm
VOLUNTARY ACTS
Rule: generally, a person is not guilty of a criminal offense unless his conduct includes a
voluntary act.
Martin v. State: Requirement of Voluntary Act (173)
Officers took the drunk appellant to a public highway where he was convicted of using loud and
profane language in public. Provision: Any person who, while intoxicated or drunk, appears in
any public place where one or more persons are presentand manifests a drunken condition by
boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined.
HELD: Conviction found erroneous. Reasoning: voluntary act is presupposed. Since he did not
voluntarily go to the highway he cannot be found guilty.

A voluntary act is a willed muscular contraction or bodily movement by the actor.

People v. Newton: Involuntary Unconsciousness (175)
Newton was shot in the stomach during an altercation with police officers and was unconscious
during the whole thing. One of the officers was shot and killed. HELD: where not self-induced
(involuntary), unconsciousness is a complete defense to a charge of criminal homicide.
Reasoning: you cant be held liable for anything you didnt do.

**To be guilty of an offense, it is sufficient that the persons conduct included voluntary act.
It is not necessary that all aspects of his conduct be voluntary.**
People v. Decina: Determining the time of the Voluntary Act
Defendant knew that he had epileptic attacks but still drove his car by himself and suffered an
attack and killed 4 people. HELD: his awareness of his condition and his disregard of the
consequences renders him liable for culpable negligence. Reasoning: With this knowledge, and
without anyone accompanying him, he deliberately took a chance by making a conscious choice
to drive his car. That was his voluntary act.

MODEL PENAL CODE 2.01(1) (1041)

A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is physically
capable.

VOLUNTARY v. INVOLUNTARY
Habit: Model Penal Code (MPC) declares that a habitual action is to be treated as a
voluntary action.
Possession: an act only if the person is aware she has the thing charged with possessing
Hypnosis: MPC stated that they are not voluntary
Somnambulism: See Cogdon: not voluntary act because not conscious.
Legal Insanity: differs from involuntary act in that the defense bears the burden of
proving legal insanity (from John W. Hinckley case (shot and wounded President
Reagan) and was found not guilty by reasons of insanity).
VOLUNTARINESS AND JUSTIFICATION FOR PUNISHMENT
o

Punishment for involuntary acts wouldn't fit within our justifications for punishment:
Retribution (more compelling): punish because they deserve it. They committed
a wrong. Voluntary behavior is assumed because if not, you didnt intend to do
something wrong.
Utilitarian: deterrence: The law could not possibly deter involuntary action. Can
it?
They might be deterred from putting themselves in situations in which
their involuntary conduct may cause harm to others, see Decina.

OMISSIONS
A person is not guilty of a crime for failure to act, even if the failure permitted harm to another,
and even if the person could have acted at no risk to personal safety.
RATIONALE:
1. Proving the omitters state of mind is too difficult
2. Line-drawing: e.g. 50 people stand by while F attacks V.
a. Difficult questions would arise if omitters could be held responsible: only those
with capacity or knew of the seriousness?
3. Promoting Individual liberty: the law should not be used to coerce people to act to benefit
others.
EXCEPTION:
Must show:
1. Legal duty
2. Capacity to actmust still show mens rea level for the omission
1.) LEGAL DUTY
Five situations in which failure to act may constitute breach of a legal duty
1. A statute imposes a duty to care for another
2. One stands in a certain status relationship to another
3. One has assumed a contractual duty to care for another
4. One has voluntarily assumed the care of another and so secluded the
helpless person as to prevent others from rendering aid.
5. (From p. 196): One who culpably places another in peril has a duty to
assist the imperiled person.

Jones v. US: Legal duty through voluntary assumption of care? (190)

Defendant voluntarily assumed responsibility for friends baby. She was not under
statutory or relationship duty. HELD: conviction was erroneous. The jury was not
instructed on whether a legal duty existed: question still remained whether she assumed
the care of the baby and so secluded the helpless person as to prevent others from
rendering aid. A legal duty to care must be found.
Pope v. State: Reluctance to impose liability even when failure is immoral (183)
D took mother and child into her house, fed them and looked after the child. Mother
went nuts and beat child. D did nothing. HELD: Pope did not have duty for child even
though mother went nuts and was "unconscious" b/c mother was still there and Pope was
under no legal duty to help. Mother still had responsibility for child and Pope had no
right to usurp that responsibility.
Reasoning: People can't be expected to use subjective judgment to decide when
to assume duty for someone else's child; must have notice of duty; jeopardizes
individual liberty; dissuades people from helping others (e.g. taking others into
home) b/c they will not want to assume liability.

2.) CAPACITY TO ACT

What is a sufficient act?
Commonwealth v. CardwellReasonably calculated to achieve success (192)
Ds husband sexually abused her 11-year-old daughter, who told D but D did very
little. D was also beaten by her husband and he carried a pistol. HELD:
conviction affirmed: she was still responsible for daughter's welfare. Required act
doesnt have to be successful but must be reasonably calculated to achieve
success. Otherwise the meaning of duty of care is eviscerated.

What type of impossibility to act will the law recognize? Certain?

Does she have to show that she was so traumatized by the

relationship that she couldnt act or does she have to show that the
threat of bodily harm was imminent?
o Is it impossibility of saving the child? Or is it impossibility
of saving the child without certain harm to self?
Were not sure if Cardwell would have been harmed,
but we are sure that non-swimmer would be if he
tried to save a drowning child.

MODEL PENAL CODE 2.01(3)

Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
(a) the omission is expressly made sufficient by the law defining offense, or
(b) a duty to perform the omitted act is otherwise imposed by law

MENS REA
(p. 203-224)

COMMON LAW

Broad Meaning: committing the actus reus of an offense with a vicious will, evil mind
Narrow Meaning: committing the actus reus of an offense with the particular mental state set out
in the definition of that offense.
o Statutory Meaning: mental state required by statute

Attempts to define mens rea: 3 major concepts: intent, knowledge, and recklessness.
1. Intent: it is the defendants subjective malevolence that determines his liability.
a. Common law Definition: Commits the crime intentionally if: (1) it was his conscious
object to cause the result; or (2) if he knew that it was virtually certain to occur as the
result of his actions.
i. Intending the conduct v. intending the result
b. Model Penal Code: subdivides intent into its two alternative components:
purposely and knowingly
c. General Intent: any offense in which the actus reus must be committed in a morally
blameworthy manner
i. E.g. Breaking and entering
d. Specific Intent: Liability is predicated on intent that is not part of the actus reus.
i. Doing something with the intent to [do something else]. E.g. Breaking and
entering with the intent to commit a felony
2. Knowingly: Defendant need not intend a result, she need only know that the result is very
likely
a. Common Law Definition: knowingly if he (1): is aware of the fact, (2) correctly
believes that it exists; or (3) suspects that it exists and purposely avoids learning
3. Recklessness: a conscious decision to ignore a risk, of which the defendant is aware
Regina v. Cunningham"Malice:" actual intention or recklessness
Defendant stole gas meter and was convicted with charges that he maliciously caused the neighbor to
inhale gas. This case hinges on the meaning of malicious. Trial court: "something that a person has
no business to do and perfectly well knows it." It held him to strict liability standard. HELD: not liable
because he did not have foresight of consequence. Malice: actual intention to do the particular kind
of harm that in fact was done; or recklessness as to whether such harm should occur or not. The
jury needs to know whether he could have foreseen that harm.
Santillanes v. New MexicoDifference b/t Civil and Criminal Negligence
Defendant convicted of child abuse for cutting nephew's neck. For there to be criminal liability, there
must be a failure of care greater than that implied by ordinary negligence (called "criminal negligence"
or "negligence plus." For Model Penal Code version, see 2.02(d)
Regina v. FaulknerNo Strict Liability (206)
Faulkner was convicted for maliciously setting fire to the ship. Jury instruction: although the prisoner
had no actual intention of burning the vessel, if they found he was engaged in stealing the rum, they
ought to find him guilty. Because he intended one thing, he should be criminally liable for all
consequences whether he intended them or not. They tried to bootstrap arson conviction to larceny
conviction. HELD: disallows this: they reversed because the act must be done intentionally and
willfully or the accused must have known of the probable result of his unlawful act unless it is a
probable consequence of his act or such that he reasonably could have foreseen or intended it.
See Model Penal Code 2.02(1)

MODEL PENAL CODE 2.02

(1) Minimum Requirements of Culpability: a person is not guilty of an offense unless he acted
purposely, knowingly, recklessly or negligently as the law may require, with respect to each
material element of the offense.
(2) Kinds of Culpability Defined:
a. Purposely: A person acts purposely when:
i. It is his conscious object to engage in conduct of that nature or to cause such a
result; and
ii. He is aware of the existence of attendant circumstances or believes/hopes they
exist.
b. Knowingly: A person acts knowingly when:
i. He is aware that his conduct is of that nature or that such circumstances exist;
and
ii. He is aware that it is practically certain that his conduct will cause such a result.
c. Recklessly: He consciously disregards a substantial and unjustifiable risk and its
disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe.
d. Negligently: He should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. Risk must be of such nature and degree
that his failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care of a
reasonable person would observe in the actor's situation.
(3) When mens rea level is not defined, it is at minimum recklessly
(4) The prescribed culpability requirement applies to all material elements
(5) Hierarchy: 1) Purposely 2) Knowingly 3) Recklessly 4) Negligence: when the law requires
negligence, all four will suffice, recklessly, only the first three will suffice
(6) The knowledge requirement is satisfied by knowledge of high probability
(7) Knowledge of existenceis established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist.

Purposely
Knowingly
Recklessly

Negligently

Standard
Subjective: did they actually have a
conscious object
Subjective: did they actually know
Subjective: did they actually have a
conscious object
Objective: was it substantial and
unjustifiable risk
Objective: what the reasonable person
would have done

US v. JewellKnowingly or Recklessly? (p. 220)

Although Defendant knew of the secret compartment, he deliberately avoided positive knowledge to avoid
responsibility. HELD: D cannot assert deliberate ignorance as a defense to the knowledge requirement of
culpability when he knew of the secret compartment and knew of facts indicating that it had marijuana.
This is equal to knowledge. Knowingly: not necessary to act only with positive knowledge, but also to act
with an awareness of the high probability of the existence of the fact in question. Instruction: his ignorance
was solely a result of his having made a conscious purpose to disregard the contents of the compartment.
(NOTE: This suggests a lower standard: recklessness). See Model Penal Code 2.02(7)
Dissent: doesnt mention requirement that Defendant have been aware of a high probability of the
substance. If he really did not believe that there were drugs in the compartment, he is innocent.

HYPO: you gift wrap drugs and give it to your kid to take over the border. The case could be
made that the child consciously avoided learning the truth.
PROBLEM: at what point is there a reasonable duty to learn the truth? ANSWER: the defendant must be
subjectively aware of a high probability of the illegal facts or conduct.
US v. GiovannettiMust act to avoid learning the truth (223)
D was a gambler and rented his house to professional gamblers. He didnt ask if they were going to use it
as a wire room. Convicted of: aiding and abetting a gambling operation by renting his house to some
gamblers, knowing that the lessees would use it as a wire room. HELD: he did not purposely contrive to
find out if they were using the house as a wire room: he did nothing to prevent the truth from being
communicated to him. He did not act to avoid learning the truth.
See Model Penal Code 2.02(7)

ISSUES WITH MENS REA

1. Does a mens rea term apply to all or some elements of the offense?
a. Legislative intent: try to find out what the legislature intended.
b. Placement of the mens rea term in the definition:
i. A mens rea term never modifies an earlier phrase
ii. With a later phrase??
c. Punctuation: separated through punctuation
d. Attendant Circumstances:
i. Many courts assume that, absent evidence to the contrary, mens rea terms
don't apply to attendant circumstances.
e. Model Penal Code:
i. The mens rea term applies to every material element unless there is a
contrary legislative intent for it not to.
MODEL PENAL CODE 1.13(9): Material Element Defined:
1. Conduct: commission or omission
2. Attendant Circumstances: any other aspect that the statute says has to
be in place before conviction
3. Result

III. HOMICIDE
MURDER
The unlawful killing with malice aforethought
COMMON LAW
A killing of a human being by another human being with malice aforethought.
Malice Aforethought: originally meant that the actor thought about the killing beforehand. Over time,
this became: the malicious mental state of the killer must occur before at the time of the homicide.
MALICE
A person acts with malice if she unjustifiably and inexcusably kills a person with any one of four
mental states:
(A)
(B)
(C)
(D)

The intent to kill

The intent to inflict grievous bodily injury
An extremely reckless disregard for the value of human life (depraved heart); or
The intent to commit a felony and during the commission or attempted commission of
which a death accidentally occurs (felony-murder rule)

(A) INTENT TO KILL

First degree murder: willful, deliberate, premeditated. [PA model: 1. morally heinous (poison, lying
in wait) 2. premeditated, 3. killings that take place during certain enumerated felonies.]
Intent to kill is formed with reflection, deliberation, reasoning, or weighing.
Commonwealth v. CarrollNo time is too short for a wicked man (400)
Defendant shot his wife in the head while she was asleep after they had an argument. HELD: The
court defines the distinction between first and second degree murder. Murder 1: willful, deliberate
and premeditated. Murder 2: intentional but not willful, deliberate and premeditated. Defendants
little time to premeditate killing is sufficient. The space of time doesnt matter if the killing was
intentional, willful, deliberate and premeditated.
NOTE: Under this approach, every intentional killing is a premeditated homicide. If so, why
would the legislature have divided the crime into degrees?
Young v. State(400)
D playing cards and scuffle broke out and he killed 2. HELD: first degree murder. "No
appreciable space of time b/t the formation of the intention to kill and the act of killing" required.

Other definitions of premeditation:

Pennsylvania: a conscious purpose to bring about death proves premeditation

Alabama: the fact that you fired the gun proves premeditation.

Expanding the time necessary to find premeditation

State v. GuthrieThe distinction between 1st degree and 2nd degree murder restored
The defendant pulled a knife from his pocket and stabbed the victim in the neck after victim
snapped him with towel. Jury Instruction on premeditation: one must show that such intention

10

came into existence for the first time at the time of the killing. HELD: this virtually eliminates the
distinction between first and second degree murder. One who meditates an intent to kill and then
deliberately executes it is more dangerous and culpable or less capable of reformation than one
who kills on sudden impulse. There has to be some time between forming intent and killing.

FACTORS TO DETERMINE PREMEDITATION

Planning activity: (post murder activities can indicate this)
Prior relationship: (indicates motive)
Nature or manner of the killing: (to show preconceived design)
Second degree murder: all intentional killings that are not premeditated, deliberate and wilfull.
PROBLEMS WITH THE DIVISION
Society seems to want heinous crimes to be first degree and less heinous crimes second degree.
People v. AndersonProblems with premeditation as the basis for murder 1 (403)
Guy stabbed 10 yr. old girl 60 times. Only guilty of second degree murderinterpret premeditation
like one would expect to be in the dictionary (reflection, weighing of alternatives, planning).
We want to convict him of murder 1 because his crime was so heinous.
State v. ForrestEuthanasia: Murder 1 (404)
Defendant wanted his father to die less painful death so took gun to hospital and killed him. He was
convicted of first degree murder.

POLICY:

Is it correct to punish a person who premeditated the murder more than one who killed on
impulse because the one who premeditated the killing is more dangerous (deterrence)?
o If you plan better, you can escape.
The idea is that the deliberation requirement of 1st degree separates it into cold-blooded
v. hot-blooded killingso if you plan it, you're more wicked (retributionist).
In leaving it to the jury, does Carroll really just allow them to pick the most heinous
crime?
Is Anderson test not as good because it doesnt do this?

MODEL PENAL CODE210.1

1. Abolishes the distinction between first- and second-degree murder
2. Death eligible killers:
a. Purposely
b. Knowingly, or
c. Recklessly under circumstances manifesting extreme indifference to the value of human
life.
i. Purposely and knowingly are the common law equivalent of intent to kill
ii. Recklessly is similar to the extreme recklessness (this is the equivalent depraved
heart) form of common law murder
1. To constitute murder, the recklessness must occur under circumstances
manifesting extreme indifference, if not, then death is voluntary
manslaughter.

11

12

DEPRAVED HEART MURDER

Where there is no intent to kill, a killing can still be a murder where an overall judgment of the
Defendants acts creates a substantial risk of death under circumstances that justify calling the
Defendant callous, cruel, etc.
A. COMMON LAW
2 CONSIDERATIONS
(1) CALCULATING UNREASONABLENESS
i. Magnitude of the risk:
1. How likely and serious was it?
ii. Defendant's reasons for engaging in the risky behavior
1. Justified or unjustified by the facts?
Circumstances under which an unintentional killing constitutes murder rather than
manslaughter:
Commonwealth v. MaloneWicked, Depraved Heart (439)
One kid offers to play and puts the gun to the others head and pulls three times. He didnt
expect the gun to go off. HELD: affirmed the 2nd degree murder conviction even though he
had no malevolence to the deceased and did not intend to kill him. Reasoning: Malice does
not necessarily mean malevolence but any evil design in general; the dictate of a wicked,
depraved, and malignant heart: an act of gross negligence for which he must reasonably
anticipate that death to another is likely to result.
**NOTE: Court: malice is needed to distinguish murder from manslaughter. Court: the
death was likely to result because the gun had a 60% chance of going off. But if we believe
he put the bullet where he said he put the bullet then there was no chance. So, he didn't have a
depraved heart because he didn't think he would shoot him. HE HAD NO SUBJECTIVE
AWARENESS. Prosecuted under negligencehe didnt have any awareness of the risk
and was still convicted (the court thought it was applying recklessness). The bottom line
is whether there was willingness to create a risk of death for a really bad reason. Hard to
tell if gross negligence was really enoughCourt writes as if he was reckless.
He was playing with the gun the day before. He should have known.

United States v. FlemingReckless Murder (443)

Drunk driver driving really fast into oncoming traffic. There was a high degree of risk and no
good reason for taking the risk. Was he reckless?As long as the jury can infer that he was
aware.
Malice: reckless and wanton and a gross deviation from a reasonable standard of
care
Subjective awareness of the risk is required but Defendant says he had no idea and ordinarily
it would be a defense. But where if Defendant says because I was drunk, thats not a defense
to recklessness. They impute subjective awareness if you are drunk.
State v. DavidsonReckless Second Degree Murder (442)
Dogs escaped fenced-in area and killed child. HELD: Defendant created an unreasonable risk
and then consciously disregarded it in a manner and to the extent that it reasonably could be
inferred that she was extremely indifferent to the value of human life.

(2) MENS REA REQUIRED:

i. Common Law Majority: Recklessness
ii. Common Law Minority: Recklessness Plus

13

B. BODILY HARM: the malice required for murder is found in the intent to do serious bodily harm.
C. PARTICULARIZATION: Typically not an issue because the requirement that Defendant be actually
aware of the risk allows for sufficient "particularization" of D's perspective.
(1) If the defendant wasn't actually aware of the risk, the prosecutor cannot prove recklessness.
i. See Involuntary Manslaughter: Welansky
D. MODEL PENAL CODEgoes even farther: Recklessness Plus (Same as Common Law Minority)
(1) An unintended killing is murder when it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life.
(2) Two considerations:
i. Was it a gross deviation?
ii. Did it manifest extreme indifference to the value of human life?
E. DIFFERENCE BETWEEN MENS REA STANDARDS
(1) Recklessness: a conscious disregard of an unreasonable risk that involves a gross deviation
(2) Recklessness plus: a conscious disregard of an unreasonable risk that indicates an extreme
indifference to the value of human life.

Recklessness
Recklessness Plus

Level of Awareness
Subjective
Subjective

Nature of Risk
Gross Deviation
Extreme indifference to the
value of human life

14

FELONY MURDER
A person is guilty of murder if he kills another person, even accidentally, during the commission of
any felony.
King v. Commonwealth (451)Death must be consequence of the felony
D and co-pilot transporting 500 lbs. of marijuana, got lost in fog & crashed, co-pilot died. HELD:
FM conviction reversed b/c the drug distribution crime was not the PROXIMATE CAUSE of the
death; the crash was not made more likely by the fact that the planes cargo was contraband
(different if crash resulted from flying plane at a low altitude to avoid detection).
Regina v. SerneMalice: transferred from intent to commit a felony
Defendants insured their house and son and their house was set on fire. Two of their sons burnt to
death. Any act known to be dangerous to life and likely in itself to cause death, done for the
purpose of committing a felony which causes death, should be murder. The Defendants intent to
engage in a felony is transferred to the death. HELD: Defendants not guilty.
A murder conviction doesnt result in every act; the felony must be dangerous to life and
likely in itself to cause death to be murder. Mens rea: recklessness/negligence

Special rule of causation:

People v. StampYou take your victim as you find themStrict Liability standard
Defendant robbed victim and after he left, victim died of a heart attack from fright (he had been in
bad health.) The felony-murder rule is not limited to those deaths which are foreseeable. Rather a
felon is held strictly liable for all killings committed by him or his accomplices in the course of
the felony. So long as a victims predisposed physical condition is not the only substantial factor
bringing about his death, that condition and the robbers ignorance of it, in no way destroys the
robbers criminal responsibility for the death. The robber takes the victim as he finds him.
No mens rea requiredno intent to kill: strict liability. (Compare with the trial court in
Cunningham).

A. ENUMERATED FELONIES: When common law murder was divided into degrees, particularly
dangerous feloniesarson, rape, robbery, and burglarywere the only felonies on which a firstdegree felony-murder conviction could be obtained.
(1) If the felony is not enumerated, then you cant get 1 st degree murder.
NOTE: The broadest reading of felony-murder covers all felonies. You do a blameworthy thing
and youre liable for everything else. They bootstrap the culpability for the felony to the killing.
B. RATIONALE: not intended to deter the felony, but only to deter dangerous conduct during its
commission
(1) If the purpose were to deter the felony, it would make more sense to enhance the punishment
of that offense.
C. CRITICISM:
(1) Culpability: when applied to accidental homicides, the rule results in disproportional
punishment. The intent to commit the felony is transferred to the homicide, which is unfair.
(2) It precludes having to show mens rea for the homicide.
D. LIMITATIONS: because of its unpopularity, the courts have tried to limit it.

15

INHERENTLY DANGEROUS FELONY LIMITATION

The felony can only be used as the basis of a conviction if the defendant was engaged in a felony that
created serious risk of death. How to define dangerous: 2 approaches
NOTE: Limitation imposed only when felony is not enumerated (e.g. in states that have 2nd degree
FM). Doesn't apply to enumerated felonies b/c Leg. stipulated they were dangerous. (See Wilson)
(1) Abstract: Court looks at nature of felony in abstract. If it can find one instance where it
would not be inherently dangerousness, Defendant must be let off. (California approach).
People v. PhillipsGrand theft medical fraud
D told victims parents he could save her from eye surgery (cancer). He was convicted of 2nd
degree FM. HELD: FM instruction should not have been given. The evidence did not establish
the existence of an intent with conscious disregard for life to commit acts likely to kill. He
believed that the treatment would be as effective as surgery. The felony, grand theft, was not
inherently dangerous in the abstract.
Court: retry is necessary b/c possible that D didnt have to be convicted of DHM, he may
not have been aware that he was risking her life (no conscious disregard).
People v. SatchellAbstract
Defendant is convicted of the felony of possessing a shotgun when an ex-felon. He shot and killed
victim. Held: no felony murder because possession of shotgun is not inherently dangerous to
human life in the abstract.

(a) Difficulties with abstract approach:

1. When the legislature puts multiple offenses in one statute
People v. PattersonNo looking at whole statutetoo broad
D gives cocaine to woman who dies. He violates code which makes it illegal to
transport, furnish, etc. (many different drugs). Court says that is too broad. Legis
grouped them together for convenience. Only look at furnishing cocaine.
Inherently dangerous to human life: the court rejected the substantial likelihood
of death standard. There has to be a high probability of death.
Dissent: if majoritys test is based on probabilities, no felony carries high probability
of death as a side result.
People v. HendersonCant separate statute
False imprisonment at gun point: kidnapped victim tried to get away and D shot and
killed a bystander. Court: false imprisonment isnt inherently dangerous to life.
Prosecution: can separate statute into two: imprisonment by: violence or menace
and fraud or deceit.
Court didnt buy this: if the legislature wanted to treat them separately,
they would have.
NOTE: Inconsistent results in Henderson and Patterson: one separates the statute, the
other doesnt. In Patterson if you read it as a whole and exclude your case from felonymurder, everything in the statute would have to be excluded from felony-murder.

(b) As Perpetrated: determine dangerousness by looking at the facts of the case. (Rhode
Island approach)
People v. Stewart
Defendant went on crack binge and didnt care for infant, who died. HELD: guilty of
both 2nd degree murder and wrongfully permitting child to be a habitual sufferer.

This cuts out the least violent offenses because they are too remote:
Most violent
least violent

16

"MERGER DOCTRINE" LIMITATION

Some courts require that the felony that serves as the predicate for the felony-murder rule be
independent of the homicide; otherwise, the felony that is not independent is said to merge with the
homicide. Therefore, the predicate felony must not be one involving personal injury but have a
purpose other than inflicting harm.
People v. SmithNo FM if integral part of homicide
Defendant beat her child severely and child died. HELD: a felony murder instruction may not be given
when the felony is an integral part of the homicide. Like all felony-murder instructions, this one had the
effect of relieving the jury of finding mens rea. Because the death of the child was directly caused by an
assault, the court applied the merger rule. Court looked at 3 precedent cases:
People v. IrelandFelony was assault with a deadly weapon where D shot his wife. HELD:
no felony murder where the death is based on a felony which is an integral part of the
homicide and included in fact with the homicide. Where the purpose of the conduct was the
very assault which resulted in death. (Because you wouldnt have to look at mens rea.)
People v. WilsonD entered wifes apartment and shot her and man on couch. Burglary is an
enumerated felony. HELD: burglary with intent to assault with a deadly weapon merges
no FM. (This is rejected by NY in People v. Miller: take dangerousness into account.
Burglary is more dangerous indoorsso it should be excluded from FM. But when outdoors,
merger still can apply. But if this really mattered, manslaughter should be FM because it is so
dangerous. But NY law explicitly lists burglary as a felony that can trigger FM). The court
used the merger doctrine to carve out a version of burglary that applies to merger.
o If there werent assault with a deadly weapon, there wouldnt have been burglary,
and if there werent burglary, then there wouldnt have been murder.
o Whats the difference between the two cases (Miller and Wilson):
Wilson: CA: if you allow burglary with ADW, then you can allow ADW by
itself. It adds another felony that can get FM.
Miller: NY: Model Penal Code state; if its not enumerated, then no FM.
Burglary is enumerated but ADW is not and they arent worried that it will
be included by itself.
People v. BurtonD killed during an armed robbery. HELD: robbery was sufficiently
independent for FM even though the felony was integral to the homicide. You need to go
further and look at the purpose of the conductwhere there is an independent felonious
purpose to the conduct or single conduct with single purpose (as in Ireland)
If the court had sided with Burton: everything would merge because anything could be
broken up the way they wanted to break up homicide. FM would be very narrow. Armed
robbery is the most common felony for a murder conviction under felony murder. They
would eliminate armed robbery as a basis for FM.
NOTE: Wilson emphasizes felony as the integral part of the homicide. Burton emphasizes independent
felonious purpose.

Most violent

least violent

Merger effectively removes the most violent crimes because they are so violent that there
is no reason to distinguish between the felony and the murder.

17

AGAINST THE MERGER LIMITATION:

People v. HansenRejected the Ireland Test
Defendant discharged a firearm at an inhabited building. The court rejected the Ireland integral
part of the homicide test because it would preclude the felony-murder rule for those felonies most
likely to result in death. Preferred an ad hoc approach so long as doing so would not elevate all
felonious assaults to murder or otherwise subvert legislative intent.
The court viewed Patterson's new test, that there has to be a "high probability of death,"
as the same as the original test, "substantial likelihood of death" standard.
NOTE: Subverting legislative intent: legislature didnt intend to make this a predicate felony
because not enumerated. Court probably meant that as long as this predicate felony doesnt
compromise the calculation of culpability to punishment, then it could be used as a basis for
second degree murder.

ANOMALIES:

Miller: Defendant went into a building and intended to kill F but instead kill A. If we
apply the California doctrine (pre-Hansen) the prosecutor could get felony murder
only if the underlying felony is burglary but you cant use it according Ireland.
o So to allow FM, Burton says you have to have an independent felonious
purpose meant to kill F not A.
o It would be an anomaly if they allowed felony murder. If you actually killed
F, then no FM. But if you accidentally kill A then FM
Compare Miller to hypo from beginning (Joe goes to Helens house and doesnt
intend to kill her but she dies and there is felony murder). Independent felonious
purpose.

18

KILLINGS NOT "IN FURTHERANCE" OF THE FELONY LIMITATION

COMPLICATIONS WITH FELONY MURDER

Killer is an innocent person (crime victim, bystander, or officer)

Deceased is a co-felon

TWO APPROACHES
(1) Agency Theory:
a. The felony-murder doctrine applies only to killings directly by a felon and in furtherance
of a joint felonious plan. The killer has to be an agent of the defendant.
i. This is the prevailing view.
State v. Canola Justifiable Homicide: No FM for killing of co-felon
A victim and a co-felon were killed. HELD: the killing has to be done by D or by
one acting in furtherance of the felony and as a result, Canolas felony-murder
charges were reversed as to the killing of the co-felon. Reasoning: most modern
progressive thought favors restriction rather than expansion of the FM rule. It would
be regressive to extend the application of the rule to lethal acts of third persons not in
furtherance of the felony. (Different if he used him as a shield)

(2) Proximate Cause Theory:

a. A felon can be convicted of felony murder from a killing, no matter by whose hands that
is proximately caused by the commission of the felony.
i. Recently, an increasing number of states have adopted this theory
ii. Problems:
1. How far do you extend foreseeability?
2. Using an objective standard in assessing criminal guilt seems
undesirable.
3. Why do courts draw a distinction between the killing of felons and
victims?
a. Assumption of risk: risky business
b. What does this say about the lives of felons?
i. They arent worth anything.
iii. Difference: proximate cause: anyone could have done killing
United States v. Heinlein
3 Defendants participated in a rape, woman slapped Defendant and he killed her. HELD:
Under the agency theory, the liability of a co-felon for the unanticipated actions of
another felon not in furtherance of the common purpose could no more be attributed to
them than the actions of a policeman or victim. The other 2 defendants were not guilty of
FM
HYPO: cop kills cop during the commission of armed robbery. Can the defendant be held liable?
Agency theory: no because must be done by felon
Proximate cause: yes, because it was reasonably foreseeably risk of felon's act

(3) Vicarious liability: (applies in Agency Theory jurisdictions only)

a. When the defendant or his accomplice, with a conscious disregard for life, intentionally
commits an act that is likely to cause death, and his victim or an officer kills in
reasonable response to such act, the defendant is guilty of murderregardless of who
dies
b. In such a case, the killing is attributable, not merely to the commission of a felony, but to
the intentional act of the defendant or his accomplice committed with conscious disregard
for life.

19

c. Central question: whether the conduct of the defendant or his accomplice was sufficiently
provocative of lethal resistance to support a finding of implied malice.
Taylor v. Superior CourtProvocative Act Doctrine
Daniels and Smith robbed a liquor store, Taylor was driver. Daniels chattered insanely. Smith was
killed by victim. Taylor was convicted of felony murder. HELD: conviction affirmed. He cannot
be convicted of felony murder because he didnt have malice because the killing wasnt committed
by a felon (agency). But under vicarious liability, the killing is attributable to the Defendant: they
committed acts with conscious disregard of life (depraved heart and accomplice liability).
Daniels threats of execution and Smiths nervousness were provocation sufficient to infer malice
and exhibited depraved heart conduct. This is the Provocative Act Doctrine: The conduct must be
sufficiently provocative of lethal resistance to support a finding of implied malice.
People v. Antick
Robbery and afterwards, driver shoots at police and they kill him. Can Defendant be held liable?
Felony murder: no, the killing wasnt done by a co-felon. Vicarious liability: no, because you
cant hold the driver liable for his own death: it is impossible to base Defendants liability for this
offense upon his vicarious responsibility for the crime of his accomplice.
(Taylor would not be guilty because Smith essentially killed himself. So the conduct that
provoked resistance and Smiths killing was Daniels acts. Hold Taylor liable for Daniels acts.)

MODEL PENAL CODE210.2

(1) Criminal homicide constitutes murder when:
(a) It is committed purposely or knowingly; or
(b) It is committed recklessly under circumstances manifesting extreme indifference to
the value of human life. (Depraved Heart Standard)
1. **Such recklessness and indifference are presumed if the actor is engaged or
is an accomplice in the commission of
a. Listed felonies: robbery, rape or deviate sexual intercourse by force
or threat of force, arson, burglary, kidnapping or felonious escape.
2. This presumption is rebuttable.
3. So, reckless indifference to human life may be presumed if the person causes
the death during commission of an enumerated felony.

20

MISDEMEANOR-MANSLAUGHTER RULE (UNLAWFUL-ACT DOCTRINE)

RULE:
A person is guilty of involuntary manslaughter if he kills a person during the commission or
attempted commission of an unlawful act that does not otherwise trigger the felony-murder rule.
State v. PowellCriminal negligence not needed
Jogger was killed by dogs that escaped from Defendants yard. Ordinance required dogs to be
restrained by fence or leash and so Defendant was guilty of involuntary manslaughter regardless
of whether he had been reckless or negligent.
Note: why is this doctrine needed? It makes it a lot easier to convict: no need to show
recklessness.

LIMITATION:
There must be some causal connection between the misdemeanor and the killing; otherwise no
manslaughter. (NOTE: Under a rigid application of the rule, causality does not matterso the
limitation depends on how the court applies the rule).
Commonwealth v. WilliamsCausal Connection Required
Defendant failed to renew his drivers license, a misdemeanor, and got in an accident (not his
fault) killing another person. HELD: the expiration of the license had no causal connection to the
accident, which had resulted from the carelessness of another driver.

MODEL PENAL CODE:

Rejects entirely the misdemeanor-manslaughter analog.

21

MANSLAUGHTER
VOLUNTARY MANSLAUGHTERPROVOCATION (Heat-of-Passion)
Murder committed in sudden heat of passion, as the result of adequate provocation.
4 ELEMENTS(See Maher)
1. Defendant acted in the heat of passion. (Subjective)
2. There was legally adequate provocation (Objective)
3. Killed before sufficient cooling time. (Objective)
4. Defendant had not actually cooled. (Subjective)
COMMON LAW LIST OF PROVOCATION:
a.
b.
c.
d.
e.

Victim of assault or battery

Mutual combat
Defendants illegal arrest
Injury or serious abuse of a close relative
Sudden discovery of a spouses adultery.
Judge decides as a matter of law whether the act was reasonably adequate provocation
Girouard v. StateWords are NEVER enough. Not on listNot taken to jury
D killed his wife after an angry argument (lousy fuck). HELD: words alone are not legally
adequate provocation to mitigate a 2nd degree murder charge to manslaughter. Reasoning: Judge's
role is to determine initially whether the provocation falls into the categories of legally adequate
provocation. If it does, then jury will decide whether it applies in that specific case.
DEFINITION: To be adequate, it must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the moment from passion rather than
reason.
PROBLEMS: This is problematic b/c you define provocation and limit the list. But if the
court held the other way, wed be giving people a license to kill.
You can act from passion and not kill
This standard seems to justify anything that will make a person act unreasonably
Do we look at the reasonable person in the abstract or in the situation or
characteristics of the actor?
***Court finds that judge has discretion to determine standard not jury.

The jury decides provocation unless it is "so clear as to admit of no reasonable doubt"
Maher v. PeopleWhat is adequate provocation? Taken to the jury.
Defendant saw his wife and Hunt go to the woods < hour before the assault. Before he killed
Hunt, a friend told him that Hunt slept with his wife the day before. HELD: the provocation was
sufficient to justify a conviction under manslaughter rather than 2nd degree murder. Jurors are
better qualified to judge provocation and the standards of ordinary human nature.
Maher wants the jury to decide the case because its not obvious that its on the list. He
had an inkling that she was having an affair but all he knew for sure was through
hearsay. There are provocations that the courts never thought of that the jury might
find.
DISSENT: worried that the provocation defense will be overused: the cause of the
provocation must occur in his presence. The innocent as well as the guilty, or those who
had not as well as those who had given provocation, might be the sufferers.
Commentary
Victoria Nourse: argues that provocation is only warranted when the provocation is an
illegal act. So separation (leaving husband) cannot constitute provocation.

22

TWO WAYS TO EXPLAIN PROVOCATION

1. Partial Justification: it looks at what the victim did. (The dissent endorses this)
a. Yes, Im responsible but
b. It wasnt bad because of what the victim did.
2. Partial Excuse: it looks at what the perpetrator did: (Maher) the act was committed in
consequence of the passion excited by the provocation
a. Yes it was a bad act, but
b. You shouldnt find me guilty because Im not responsible. (E.g. insanity)
NOTE: the difference between the two is significant because it determines the burden of
proof. What if killed wrong victim? Partial Justification: no manslaughter mitigation
because Vs actions didnt partially justify Defendants actions. Partial Excuse:
Misaim ok, probably still manslaughter.
MURDER v. MANSLAUGHTER
a. Murder involves a killing with malice aforethought whereas manslaughter occurs without it
b. Manslaughter: Intentional killing done in the heat of passion
c. Unintentional killings: an unintentional killing can constitute either murder or manslaughter.
(Three of the four categories of malice for murder involve unintentional killings).
i. Recklessness v. negligence: a reckless killing is murder whereas a criminally
negligent one is manslaughter.

23

PERSONALIZING REASONABLENESS:
To what extent should it be personalized?
BedderAbstract reasonable man
Prostitute taunted impotent male and he killed her. HELD: Jury was instructed to consider
whether a reasonable man who was not impotent would have reacted in the same way.
Reasoning: it would be illogical not to consider an excitable or pugnacious temperament in the
accused but yet recognize unusual physical characteristics.
This denies him of the provocation defense because they wont look at his circumstances.
CamplinGravity of the provocation included (421, 423)
Boy was sodomized and ridiculed and killed man with a frying pan. HELD: courts should build
into the test such factors as age or gender; reasonable man should share same characteristics of
D relevant to the words or taunt. (But is this biased towards women because men are more
easily provokedmore mitigation?)
Self control: he can control excitability; no instruction based on this
Gravity of the provocation: instruct on this.
NOTE: a person of 15 would have less self-control than an older person so they do include it.
This became absurd so it was scrapped: (e.g. reasonable glue sniffer)

MODEL PENAL CODE2 WAYS TO GET VOLUNTARY MANSLAUGHTER

Reckless killing not done under circumstances manifesting an extreme indifference to the
value of human life is manslaughter under the Code.
210.3(1)(b): EXTREME EMOTIONAL DISTURBANCE
TWO ELEMENTS:
1. Defendant must have acted under the influence of extreme emotional
disturbance (subjective), and
2. There must have been a reasonable explanation or excuse for the disturbance
(both subjective and objective).
a. Standard: determined from the viewpoint of a person in Defendants
"situation" in the circumstances as he believes them to be. (417-424)
People v. CasassaMore particularization
D killed victim because she was not falling in love with him. HELD: Defendant did kill
victim under extreme emotional disturbance but the excuse offered was so peculiar to him that it
was unreasonableno mitigation. Defendant failed to establish the second element because the
murder was the result of malevolence rather than an understandable human response.
NOTE: The court has to apply the standard from Ds viewpointthey incorrectly applied
it: he was convicted. The tr. Ct. said that his traits were too particular.
State v. Elliot(418)
D feared brother and killed him for no reason. HELD: reversed murder convictionEED
should have been instructed. EED is not "hot blood" murder but one brought about from mental
trauma that caused D to brood for a long period of time.
Abstract Reasonable Man
Bedder

Particularized
Camplin
Self control v.
Gravity of provocation

Casassa
Model Penal Code
EED

The further right you go the easier it is for Defendant to get his sentence mitigated.

24

WE ARE LEFT WITH:

What arouses sympathy in the ordinary juror as the standard. This will all depend on
the lawyer and his ability to paint a bad picture of the other side.
DIFFERENCES BETWEEN CODE AND COMMON LAW:
1. No cooling-off period
2. The Code doesn't limit defense to only situations of provocation
3. Under the Model Penal Code, there is:
i. No Girouard/Maher problem: it goes to the jury automatically
ii. No Bedder/Camplin problem: subjective internal perspective and facts as Defendant
sees them.
REKINDLING
Bringing about past provocation might restart the cooling period. Many modern courts are
unwilling to allow rekindling. The legally sufficient provoking event happened in the past
RATIONALE FOR PROVOCATION
i. If mental state is going to be an element of the crime, there has to be some mental state
defense.
ii. Some people might not be generally bad people but might act violently on an infrequent
occasion if provoked.
iii. Deterrence: harder to deter provoked killings.
iv. Provocation as Partial Justification: A person is to some extent morally justified in killing
someone who intentionally causes him serious offense, and this differentiates someone who is
provoked to lose self-control and kill from the unprovoked killer.
POLICY: Reasonable man standard: Manslaughters definition of provocation (calculated to inflame the
passion of a reasonable man) suggests that it is reasonable to kill in certain circumstances. But
manslaughter is a serious charge; so to say that a reasonable person would kill under these circumstances
and then criminally charge him is strange.

25

INVOLUNTARY MANSLAUGHTER(UNINTENTIONAL KILLINGS)

A person who kills another person in a criminally negligent manner. Like DHM but objective
standard of awareness of the risk.
DISTINGUISHING CRIMINAL AND CIVIL LIABILITY
Commonwealth v. WelanskyNegligence is sufficient
Defendant operated a nightclub. While Defendant was in hospital, a fire broke out and killed
many. Exits were blocked and locked. HELD: convicted of IM. Reasoning:
If danger was realized by Defendant, his omission (failure to change the setup of the
club) is wanton or reckless conduct.
If Defendant is so stupid that he didnt realize it, he cannot escape charge of wanton or
reckless conduct if an ordinary normal man would have realized it.
Essentially, wanton/reckless conduct is intentional conduct, which involves a high degree of
likelihood that substantial harm will result. Wanton conduct is indifference to or disregard of
probably consequences
NOTE: The court called his conduct recklessmore like negligence plus

NEGLIGENCE PLUS STANDARDGROSS NEGLIGENCE

3 ELEMENTS:
1. High risk
2. Serious Harm
3. No Justification
2 CONSIDERATIONS:
1) CALCULATING UNREASONABLENESS
i. Magnitude of the risk:
1. How likely?
2. How serious?
ii. Defendants reason for engaging in risky behavior
1. Justified by the facts?
2. Unjustified?
2) MENS REA
i. 2 Possibilities:
1. Negligence Plus: Objective standard: Common Law Majority
a. Criminal Negligence: even if you're so stupid that you don't
realize it, you're still liable
i. It's a gross deviation for a standard of care of a
reasonable person
ii. If a reasonable person would have known of risk, you
are guilty.
iii. Depends on the size of risk: High risk of serious harm
2. Recklessness: Subjective Standard: Common Law Minority and Model
Penal Code: 4 Elements
a. High risk
b. Serious Harm

26

c. No Justification
d. Defendant was aware of the risk (objective awareness)
i. It's not enough that a reasonable person would have
known, the defendant had to have some level of
subjective knowledge.
Ordinary Negligence
Gross Negligence (plus)
Recklessness
Recklessness Plus

Level of Awareness
Objective
Objective
Subjective
Subjective

Nature of Risk
Unreasonable risk
Gross Deviation
Gross Deviation
Extreme indifference to the
value of human life

OBJECTIVE v. SUBJECTIVE STANDARD:

What should the standard have to incorporate?
State v. WilliamsOrdinary Negligence is enough for IM
Husband and wife did not get their child medical attention: abscessed tooth and gangrene. Baby
died. HELD: Defendants were negligent sufficient to support a conviction of statutory
manslaughter. They were sufficiently put on notice concerning the symptoms of the babys illness
and lack of improvement to have required them to get him treatment. If they had been aware of a
life-threatening condition and ignored it, then their conduct would have been reckless murder.
Education: (9th grade); Race (Indian)
Personalization: consider D's physical particulars but not cultural background, education

PROBLEM W/COMMON LAW MAJORITY APPROACH

You can be convicted of involuntary manslaughter under gross negligence without any
awareness at all.
Difficulty for punishing negligence: arises from punishing a person for departing from
an invariant and external standard that they might not have been able to meet.
MODEL PENAL CODENEGLIGENT HOMICIDE
A killing done with criminal negligence (no actual awareness of the risk but with a gross
deviation from the standard of care of a reasonable person)
i. When people have knowledge that conviction and sentence may follow conduct, they
are supplied with an additional motive to take care before acting.
ii. Requires recklessness (awareness): but not under circumstances manifesting extreme
indifference to human life.
DIFFERENCES BETWEEN CODE AND COMMON LAW
i. Under the common law, a person can be convicted of manslaughter even if the act was
committed inadvertentlycan be convicted even if unaware of the risk
ii. Under the Model Penal Code, no conviction: the actor must be aware.
Negligent homicide
Involuntary Manslaughter
DHM

Common law Majority

Gross negligence
Recklessness

Common law Minority

Recklessness
Recklessness Plus

Model Penal Code

Gross negligence
Recklessness
Recklessness Plus

27

IV. MISTAKE
MISTAKE OF FACT
A defendant is not guilty of a crime if his mistake of fact negates the mens rea of the offense. Its
a failure-of-proof defense.
SPECIFIC-INTENT OFFENSES
Defendant is not guilty of a specific-intent crime if her mistake of fact negates the specific-intent element
of the offense. This is so regardless of whether her mistake was reasonable or unreasonable.
GENERAL-INTENT OFFENSES
Defendant is not guilty of a general-intent offense if, as a result of her mistake of fact, she committed the
actus reus of the offense with a morally blameless state of mind. Think of mens rea in the broad sense
here.
o A reasonable mistake of fact is usually a defense. (Cant be unreasonable.)
Anomaly: specific-intent crimes allow unreasonable mistakes
MORAL WRONG DOCTRINE: Sometimes, courts will convict a Defendant of an offense even
though her mistake was reasonable
o Look at the facts from the mistaken actors perspective
o And judge whether society would consider his conduct (as he understood them to be) morally
wrong
LESSER CRIME THEORY: guilty of the greater crime if actors conduct as she believed them to
be violated a lesser crime.
Regina v. PrinceMoral Wrong & Lesser Crime Theories: Apply if no Mens Rea level is specified
(Bramwell): Prince was charged with taking an unmarried girl under the age of 16 out of her fathers
possession. The girl told him that she was 18 when she was really 14. The jury found he acted reasonable.
HELD: conviction affirmed. Moral Wrong Theory: The act forbidden is wrong in itself, if without lawful
cause. The legislature has enacted that if anyone does this, he does it at the risk of her turning out to be
under 16. (No mistake of fact). Even though his mistake was reasonable, he is still guilty because his act
was immoral (according to community standards it was immoral to take a girl from her father regardless of
age. He applied strict liability to her age. ) So, not only do we bootstrap the mens rea on a felony
(Cunningham) but well also bootstrap the mens rea on an immoral act. They apply mens rea in its
general sense. This is a Strict Liability Standard. Today, it applies only to sex with minor cases.
Rule: Whosoever shall unlawfully take or cause to be taken an unmarried girl, being under the age
of 16, out of the possession and against the will of her father or mother, or of any person having
the lawful care or charge of her, shall be guilty of a misdemeanor.
Dissent: (Brett) all cases prove that there can be no conviction for crime in the absence of mens rea. Lesser
Crime Theory: Whenever the facts which are present in the prisoners mind would, if true, make his acts
no criminal offence at all, a mistake of fact would make him guilty of no criminal offense. But if they were
to make him guilty of a less crime, then he would still be guilty of the greater crime b/c he still intended on
committing a crime. Isnt used anymoreonly when the distinction is between a grade of the same crime
(petite and grand larceny) will the mens rea for the lesser offense be bootstrapped to the greater offense.
Critique: legality doesnt mean morality. He is imposing his view of morality on everyone. Also,
he ignores the legislatures designations of what is immoral.

28

White v. StateMoral Wrong to Leave Wife

Left his wife and didnt know she was pregnant. Rule: a husband who leaves with the intent to abandon his
pregnant wife shall be imprisoned. HELD: conviction affirmed. Leaving your wife is an immoral act
regardless of whether she is pregnant; the pregnancy is just extra.
People v. Olsen
Defendant had sex with a 13 year old who told him that she was 16. He was convicted of violating
288(a): willful and lewd act with a child under 14. The trial court ruled that a good faith belief as to the
age of the victim was not a defense to this law. HELD: affirmed the conviction on the grounds that public
policy recognizes a need to protect children. (Bramwell approach). The legislature's enactment of a
subdivision that renders offenders who honestly and reasonably believed that the child was 14 or older
eligible for probation shows that the legislature did not intend for the mistake of fact defense to be a
defense to these charges.
Dissent: perhaps there is a duty of reasonable inquiry (to ensure shes older than 14). At some point, the
belief becomes reasonable by any legitimate standard, so that one would say the defendant is acting in a
way which is no different from the way our society would expect a reasonable citizen to act.
United States v. FeolaNo Mistake of Jurisdiction Allowed
Defendants attempted to rob men whom they thought were drug buyers and were federal agents. HELD:
Mistake of jurisdiction is not a defense. Feola was already engaging in illegal conduct; so to hold him
strictly liable doesnt seem unjust. (This is similar to Bretts Lesser Crime TheoryThe facts in
Defendants position still made him guilty of a crime but it turned out to be greater so hold him liable for
that.)
NOTE: But the penalty for federal assault statute creates greater penalties than the state statutethis
suggests that the element is part of the crime.

Compton
Didn't know they were officers and was sentenced to death.

MODEL PENAL CODE2.04

(1) Mistake of fact or law is a defense if
(a)
Mistake negatives the mens rea required, or
(b)
The law provides that the state of mind established by the mistake constitutes a defense
(2)

Defense is not available if the defendant would be guilty of another offense had the situation
been as he supposed. Instead, it will reduce the grade and degree of the offense to those of
the offense of which he would be guilty had the situation been as he supposed. (Variation of
the lesser crime theory)

29

STRICT LIABILITY
Liability imposed without any demonstrated culpability. A crime where at least one material
element does not require a mens rea. A mistake of fact, whether reasonable or unreasonable, is
never a defense to a strict-liability offense.
A. EXAMPLES:
a.
b.
c.
d.

Statutory rape: strict liability as to the age of victim (Olsen)

Bigamy: as to whether youre married already
Felony Murder: no mens rea needed for murder
Minor offenses: speeding, selling liquor to a minor, etc.

B. LEGISLATIVE INTENT
They would rather subject an innocent Defendant to a penalty than expose innocent people to
dangers. This is used for deterrent purposes.
US v. BalintCongress Determined S/L to be Better than no Liability
D sold drugs without knowing that they were prohibited drugs. HELD: he who shall do them, shall do
them at his peril and will not be heard to plead in defense good faith or ignorance. Justifications: hard
to prove knowledge; Congress weighed the injustice of subjecting an innocent seller to a penalty
against the evil of exposing innocent purchasers to danger from the drug: the latter was preferably to
be avoided.
US v. DotterweichActing Reasonable is not a defnese
The manufacturers labels were wrong twice. The jury acquitted the corporation but convicted
Dotterweich, its president. HELD: conviction affirmed. Statute required no mens rea; no need to know
if mislabeled to be guilty. Even if he had been very cautious it wouldnt matterstill liable (strict
liability).
PROBLEM: even people who take all reasonable precautions will still be guiltydoes this serve any
deterrent purposes?

C. PUBLIC WELFARE OFFENSES: FEATURES

a.
b.
c.
d.
e.
f.
g.

Recently enacted statutory crimes

To protect public health, safety, welfarenegligence standard is not prudent
Consumer or public are incapable on protecting themselves
Severity of punishmentlow penalty
Minimal stigma
Defendant in best position to prevent harm
Hard to prove knowledgemens rea would defeat the purpose of the statute.

Morissette v. USDifference b/n Common Law Crimes and Public Welfare Offenses
Defendant took bomb shells believing they were abandoned by the US and that he was not violating
anyones rights in taking them. Rule: 18 USC 641: crime to knowingly convert government
property. Trial court rules strict liability. HELD: overturned conviction. Supreme Court ruled that
knowingly modifies the attendant circumstances. It distinguishes common law crimes, where
Congress didnt want to eliminate mens rea (its inherent in the crime even when not expressed), and
Public Welfare Offenses. Balint is different: crime depends on no mental element but consists only
of forbidden acts.

30

D. JUSTIFICATIONS:
a. Deterrence
b. Correcting inefficiencies: courts would be swamped with cases if you allow mistake.
i. Large numbers of these types of cases: courts will be backed up
1. This suggests the opposite though: that we should require mens rea b/c
there is a danger of ensnaring truly innocent people
ii. Mens rea is difficult to prove: lessens the burden on the prosecution
1. This argument seems to support abolishing mens rea entirely
c. Balance of harms: Balint court concern: weigh the harm to D versus the public
d. Low penalties: But the penalty doesnt always match up. MPC no imprisonment allowed
e. Minimal stigma
f. Easy to avoid punishment: you dont have to go into the business in the first place
i. You assume the duty if you do
E. ALTERNATIVES:
a. CIVIL SYSTEM
i. These concerns are largely addressed within this system already
ii. The deterrence in a civil case is much greater
iii. Limitation:
1. If theres no damage, then theres no liability
iv. With strict liability, we prevent the need of showing damage
Staples v. United StatesNarrower view of S/L: Doesn't Apply to Otherwise Innocent Conduct
Defendant didn't know he had automatic weapon. Rule: it shall be unlawful for any person to possess a
firearm which is not registered to him. HELD: mens rea required. Reasoning: innocent citizens could be
imprisoned if their guns had been worn down into fully automatic weapons. The harsh penalty with the
rule confirms that mens rea is required.
NOTE: They take a different approach from Morisette. Owning a gun is otherwise innocent
conduct so strict liability is not appropriate because person wouldnt suspect to be a crime.
(Dissent argued that no one owning an altered automatic is innocent). Owning a grenade does put
you on notice though that youre doing something wrongso S/L for grenades but mens rea
required for rifles.** They dont look at the public offense factors from Morisette, only penalty
and stigma (used to support decision already made).
COMMENTARY
Hart's Argument:
We should be more willing to apply SL to traditional crimes as opposed to public welfare
offenses b/c the underlying conduct of those acts is immoral. Thus, people are on notice that
they might be committing a crime. (e.g. Morisette should be convicted b/c taking property is
immoral, but Dotterweich was a pharmacist selling medication, so SL doesn't seem right.
This was the reasoning in Staples.
State v. BakerVoluntary Acts
D was convicted of speeding. His defense was that his cruise control was stuck and not a voluntary act.
HELD: Defendant voluntarily activated the cruise control and was the agent in causing the act of speeding.
Unexpected malfunction of essential components (brakes), differ from the malfunction of cruise control
which the driver has voluntarily delegated partial control of that automobile.
NOTE: Why let voluntariness be a defense to strict liability? There still needs to be an actus reus
(for strict liability). But the prosecution will try and place voluntariness under mens rea and claim
no defense b/c strict liability and the defense will try and push it under actus reus.

31

Regina v. City of Sault Ste. Marie

Arguments against absolute liability:
1. violates fundamental principles of penal liability
2. no evidence that a higher standard of care results
Seek a middle position: where an offense does not require full mens rea, it is nevertheless a good
defense for the defendant to prove that he was not negligent.
Three categories of offences:
1. Offences in which mens rea is required
a. Truly criminal
2. Offences where no necessity to prove mens rea: doing the prohibited act leaves it
open to the accused to avoid liability by proving that he took all reasonable care
a. Public welfare offences: these would fall into truly criminal if the statutory
provision contains words as willfully, with intent, knowingly, or intentionally
3. Offences of absolute liability
a. These offences that the legislature had made it clear that guilt would follow
proof merely of the proscribed act.

METHODOLOGY
If the statute contains mens rea, then no S/L. If not then, if it is common law crime, no S/L; if it
has severe penalty (>~1 yr prison), then prob. no S/L; if complex regulation, may be S/L; if D
would be guilty of a lesser crime, then S/L on the greater crime.

32

MISTAKE OF LAW
Ignorance of the law is no excuse.
JUSTIFICATIONS:
a. The law is definite; any mistake of law is inherently unreasonable.
i. But there are many complex statutes: reasonable to be unaware of all of them
b. If mistake were recognized, it would invite fraud.
i. Possibility of fraud exists in all areas of law: we hope the jury will be able to
detect it.
c. Kahan: Larger interests on the other side: want people to learn the law; deter ignorance
i. Refusing to allow reasonable mistakes will motivate people to not learn the law
ii. Retributivist: punish only those that choose to do wrong. There is no need to
punish innocent to deter them from further unlawful conduct.
EXCEPTIONS:
a. It is a defense when he acts in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous: See Model Penal Code 2.04(3)
i. Think of this as a Common Law approach
ii. E.g. T1: statute enacted, T2: Defendant acted, T3: some court invalidates statute
People v. MarreroNo Mistake of Law Defense
D federal corrections officer thought he fit the definition of a peace officer and could conceal an
unregistered weapon. He was charged with violation of 265.02(a)(1)(a). HELD: no mistake of
law defense. It IS a defense when he acts in reasonable reliance upon an official statement of the
law, afterward determined to be invalid or erroneous. If Defendants argument were accepted, the
exception would swallow the rule. Mistakes about the law would be encouraged.
NOTE: Why was D convicted? T1: Statute enacted, T2: D acted, T3: the court didnt
invalidate it, they interpreted it. This doesnt except him under the Model Penal Code
United States v. AlbertiniBefore Cert is granted (See MPC 2.04(3)(b))
D demonstrated at navy base and was convicted for entering the base even though barred. 9th
Circuit reversed. He demonstrated again. SC granted cert and affirmed conviction. Government
prosecuted him for 2nd demonstrations. HELD: (9th) he cannot be convicted for acting in reliance
on the 9th Circuits opinion at least until the SC grants certiorari. Otherwise it would be
government entrapment. When entrapment is caused by judicial opinion, reliance defense is
even more compelling since courts interpret the law.

b. Types of Mistakes of Law:

iii. Direct Mistake of Law: I knew what I was doing but I didnt know it was
prohibited by law.
1. This is an affirmative defense and is not a defense to a mistake of law.
a. It would encourage ignorance.
2. E.g. Statute: officials cant take money from businesses working for the
city. Official takes money from business but says he didnt know it was
a crime to take it.
a. This is the traditional Mistake of Law to which the rule says it
is not a defense.
iv. Collateral Mistake of Law: I didnt know what I was doing: I knew it was
against the law to do this but I didnt know I was doing that.
1. This is a failure of proof defense, not an affirmative defense.
2. Ds mistake relates to a law other than the offense hes charged for.

33

3. E.g. The official knows it is illegal to take money but didnt know that
the business was involved with the city. So he didnt know he was
engaging in the illegal conduct.
4. NOTE: this is often actually a mistake of fact, but is treated like a
mistake of law.
5. Model Penal Code: 2.02(9): Cant use mistake of law as an affirmative
defense unless it says.
b. The law involved is not the law defining the offense; it is some
other legal rule that characterizes the attendant circumstances
6. Why allow for a Collateral Mistake defense?
c. The collateral mistake negatives the mens rea requirement of a
material element. Prosecutor has to prove mens rea but cant.
i. See Model Penal Code 2.04(1) Above (Mistake of
fact)
d. This doesnt work for Marrero because he got wrong the statute
for which he was charged.
Regina v. SmithDifferent-Law Mistake
Rule: Crime to destroy or damage property of another. Mens rea: assume
recklessly. D damaged property in his apt. that he though was his (he built it).
How did he go wrong? He didnt know the law that if a tenant makes a
permanent fixture, it becomes the landlords. So its a collateral mistake of law
b/c he mistook a different law than the one he for which was charged.
State v. Woods
Man gets divorced in NV and marries D. They go back to Vermont and she is
charged with being in bed with another womans husband. Mens rea: assume
recklessly. (Not S-L Offense). She knew this was a crime but didnt know that
Vermont does not recognize NV divorces unless both parties are present.
NOTE: The law expects you to know all the law; so a direct mistake of law is no defense.
But this exception doesnt expect you to know the law that modifies the attendant
circumstances. How does this make sense? Also, people can still say I didnt know.

v. Direct Mistake as a Failure of Proof Defense: second traditional exception

1. Courts will not use the direct mistake as an affirmative defense but as a
failure of proof.
2. The statute on its face requires awareness of its existence for guilt.
a. E.g. Its a crime to send sulfuric acid through the mail.
i. You didnt know. Direct mistakeno defense
b. But, if the second part says: Anyone who knowingly violates this
statute is guilty.
ii. This becomes an attendant circumstance.
iii. If you didnt know, then it negatives the mens rea
requirement.
3. This is a failure of proof defense.
4. This mistake is the opposite of a moral wrong: youre not already on
notice.
Cheek v. United StatesUnreasonable but still a defense
Rule: anyone who willfully attempts in any manner to evade or defeat any tax is
guilty. D didnt pay taxes w/honest belief that he didnt have to. HELD: erred
in disregarding his belief even if unreasonable. SC defined willful as
voluntary, intentional violation of a known legal duty. D honestly believed he
didnt have to. The court made willful an attendant circumstance. Must know

34

of it to violate it. The common law presumed that everyone knew the law but
with the proliferation of statutes, it has become difficult to know all your duties.
Liparota v. United States (266)
Rule: whoever possesses coupons in any manner not authorized by the statute
is liable. Does this mean that the prosecution must prove the defendant knew of
the regulation, or only that he was aware of doing the actions that violated the
regulation? HELD: the former interpretation. The court made in any manner
not authorized by the statute an attendant circumstance.

vi. When Due Process requires knowledge of a legal duty:

1. The Lambert Court set up considerations of when the court requires
knowledge of a legal duty:
a. The conduct is wholly passive
b. The Defendant wasnt on notice
c. Heavy fines
d. The statute doesnt serve important state interests
iv. E.g. They just wanted a list of felons
Lambert v. CaliforniaCourt Required Willfulness
D felon was convicted for failing to register with the city. No willfulness is required in
the ordinance. HELD: where a person did not know and there was no probability of such
knowledge, he may not be convicted consistently with Due Process. The conduct here is
wholly passivemere failure to register. This is different from the commission of acts or
the failure to act under circumstances that should alert the doer to the consequences of his
deed. Duty was based on the basis of a statute rather than an activity. Punished an
omission.
Dissent: Its not the courts position to impose willfulness on the ordinance.
Reasonable Mistake of Law
Unreasonable Mistake of Law
Reasonable Mistake of Fact
Unreasonable Mistake of Fact

Specific-Intent Crime
Exonerates
Exonerates
Exonerates
Exonerates

General-Intent Crime
Guilty
Guilty
Exonerates
Guilty

(But must also look to Moral Wrong and Lesser Crime theories in Common Law)

MODEL PENAL CODE

c. THREE PROVISIONS:
vii. 2.04(1): defense if it negatives the mens rea
viii. 2.04(3)(b): relied upon an official statement of the law afterward determined to
be erroneous contained in:
2. A statute
3. A judicial decision
4. administrative order or grant of permission
5. an official interpretation of the public officer charged by law with
responsibility with interpretation, administration, and enforcement of the
law defining the offense.
ix. 2.02(9): cant use mistake of law as an affirmative defense unless the language of
the statute so provides. Collateral mistake of law is a defense.

35

V. RAPE
4 ELEMENTS
1.
2.
3.
4.

Intercourse
By force or threat of force,
Against the will of the victim, and
Without the victim's consent

ACTUS REUS
FORCE
Rape is not complete upon proof that the female did not consent. Prosecution must also show that
Defendant acted forcibly or by threat of force of physical injury.
TEST FOR FORCE: (Taken from Hazel: See Rusk): To determine force the common law
developed a resistance requirement:
1. Victim resisted and the Defendant overcame her resistance by force, or
a. Was the resistance overcome by force? If no, then it's not rapeit's change of mind
2. Victim failed to resist out of fear
1. RESISTANCE: What level of resistance is necessary by the victim?
3 DIFFERENT STANDARDS:
1. To the Utmost: Common Law Standard
2. Just need evidence that you found it Repugnant and Abhorrent: dissent in
Rusk
3. Reasonable Resistance: Standard today
a. This is a totality of the circumstances test: jury question: Good faith
resistance measured by the totality of the circumstances.
b. See Sherry
State v. RuskResist "to the utmost"
Defendant put his hands on her throat and began lightly to choke her. HELD: The fear of
death or bodily harm must be reasonable to obviate the need of proving resistance. Victim
must resist the rapist "to the utmost" or "until exhausted or overpowered."
Dissent: Courts require her acquiescence in the act of intercourse to stem from fear generated
by something of substance.
o

Elizabeth A. Stanko: Women's experiences of male violence are filtered through an

understanding of men's behavior, which is characterized as typical or aberrant. If
typical, then aggression is left unfettered. If aberrant, then potentially criminal.
These categories are not useful for understanding women's feelings and experiences
of male violence.

Why do we have the resistance requirement?

o To ensure that it was not consensual
o Distrust of the woman
It's too easy to claim rape after the fact
Easy to charge and harder to prove
o It's a serious crime.

36

Policy Concerns against the requirement:

o Requirement is based on a distrust of woman
o While the presence of resistance may be probative on the issue of force or
nonconsent, its absence may not
"Frozen Fright" response resembles cooperative behavior
2. FEAR: Must be objectively reasonable. (See Nonconsent below). Is any fear sufficient to
make out a reasonable fear?
Fear must be of death or serious bodily harm, so extreme as to preclude resistance, or a
fear which would well nigh render her mind incapable of continuing to resist. This has to
be reasonably grounded. (Rusk)
State v. AlstonFear cannot be a general fear
Defendant and victim lived together for 6 months in an abusive relationship; she moved out and a
month later, Alston said he was going to fix her and pushed her legs apart and penetrated her. HELD:
conviction reversed. The evidence clearly demonstrated that victim did not consent, but it reversed
because there was no substantial evidence of force. She didn't revoke her prior consent. Fear cannot
be a general fearit must be fear that what is being asked for is for her to submit to unwanted sex. The
prior threats were not "sufficiently related to the sexual conduct" to lead V to believe she was in danger
if she didn't have sex with him.

Commentary:
o Susan Estrich: This case reflects the adoption of the most traditional male notion of
fight as a definition of "force." The reasonable woman is not a womanshe is one
who does not scare easily, does not feel vulnerable, not passive, fights back, doesn't
cryessentially she is a real man.
o Viviam Berger: a too understanding view towards Alston's victim may backfire and
ultimately damage the cause of women. To treat as victims all the female victims is
at some point to cheapen, not celebrate, the sexual autonomy and rights of women.

Why does it have to be reasonably grounded? (See Warren, Below)

o So long as the trier of fact is persuaded that the fear is genuine, why should
reasonableness of the victim ever be an issue?
o If Defendant subtly reinforces fears, shouldn't conviction be proper
2 ISSUES WITH FORCE:
1. Does the force have to be physical or are coercive threats and pressure sufficient?
2. Does the force have to extrinsic to the act of penetration or can the penetration be sufficient to
show force?
(1) NONPHYSICAL THREATS
Nonphysical threats are insufficient:
State v. Thompson
Defendant principal forced student to have sex by threatening to not let her graduate. HELD:
no rape, force must be physical. Court agreed that act was wrong. The word force is used in
its ordinary connotation: physical compulsion, the use or immediate threat of bodily harm.
Commonwealth v. Mlinarich
Defendant took in 14 yr old juvenile delinquent and threatened to send her back if no sex.
HELD: No rape because force must be physicalthe language allows the court to expand the
definition but they chose not toWhy? They were concerned that if they do allow for an
expanded definition of force to include nonphysical there would be unfortunate consequences:

37

 It would be easy for someone to make up the charges

They are afraid of a slippery slope
Court: not as problematic here as when somebody uses physical force. There are cases that
shouldnt be captured as rape if we define force so broadly.
Dissent: if you look at the term force, the legislature didnt mean physical force. So were
limiting the number of cases.

Nonphysical threats are sufficient:

State v. Lovely
D took in a drifter. When drifter tried to break off the relationship, Defendant pressured him
to submit to sex by threatening to stop supporting him. HELD: conviction upheld. The trial
judge had properly allowed the jury to consider Ds threats.
Distinguish: threat v. an offer
Commonwealth v. Rhodes(336)
Forcible compulsion connotes superior forcephysical, moral, psychological, or intellectual

PRIOR ABUSE
There has to be a connection b/t the prior abuse and the current submissiveness.
The victim must "expressly and unequivocally revoke her prior consent and lack of
consent in this case."
TEST
Whether the totality of the circumstances leads to a reasonable inference that the
unspoken purpose of the threat was for her to submit to unwanted sex
State v. Alston (See Above)
The Court held that the events were too temporally distant to be relevant. Just
because she said "NO" it doesn't mean that she wasn't consenting. The court did find
however, that she didn't consent, but because there was a prior relationship the
prosecutor had an extra hurdle: they have to show that she communicated clearly her
rejection of her prior consent: 2 questions:
a. Were her statements communicated clearly?
b. Did her statements and actions "expressly and unequivocally revoke
her prior consent and lack of consent in this case"?

SOLUTIONS
1. Model Penal Code: conviction for "gross sexual imposition" in cases where
submission is compelled by threat of force or "by any threat that would prevent
resistance by a woman."
2. Several states are similar to Model Penal Code by extending rape to situations
where consent is obtained through: duress, coercion, extortion, or using a
position of authority.
(2) PENETRATION AS FORCE
The act of intercourse itself involves some degree of physical force. Should this kind
of force meet the force requirement for a rape conviction?
State in the interest of M.T.S.
The victim consented to kissing and heavy petting and was not asleep during sex. HELD: The
victim no longer is required to resist and need not have said or done anything. To require
physical force in addition to unwanted sexual penetration would be inconsistent with the
legislative purpose of eliminating consideration of whether victim resisted or expressed non-

38

consent. Therefore, any act of sexual penetration without freely-given permission of victim to
the specific act of penetration constitutes sexual assault.

PROBLEM:
A finding of rape could be made in just about any case under this standard.
NONCONSENT
There's an affirmative burden on the victim to signal to the defendant that she does not consent.
Under actus reus, the nonconsent question is objective: was there consent? Either yes or no.
TEST FOR NONCONSENT: Same as for Force.
1. Victim resisted and the Defendant overcame her nonconsent by force, or
2. Victim failed to express nonconsent out of fear
FORCE:

If there was force, then nonconsent is implied.

If she stopped resisting not because of force, then she consented.

FEAR: Fear must be objectively reasonable.

People v. WarrenSee Also, Below: Mens Rea
Victim was 5'2", 100 pounds, Defendant was 6'3" 185 pounds. She was on a bike path and he
picked her up and carried her away. She didn't scream or fightshe was frozen. HELD: her fear
was not reasonable to him. He had to have indication. No weapon. (But he did say "this will only
take a minute.")

RATIONALE AGAINST NONCONSENT REQUIREMENT:

1. It doesn't make sense to treat silence or failure to object as proof of unwillingness.
a. HYPO: Schulhofer's student athlete needing surgery: he isn't sure if he should do it
and the surgeon finally gets fed up, readies the anesthesia and tells him right before
he injects him, "if you don't want to, just say no." He doesn't say anything.
i. No consent in this case. More than silence needed for consent.
b. But if you think of the students hesitance as fore play between the two and the
woman says then no, then yes and each time Defendant does as she says and finally
asks her if she wants to but she doesnt say anything, should he really be charged?
MODEL PENAL CODE213.1
(1) A male who has sexual intercourse with a female not his wife is guilty of rape if:
a. He compels her to submit by force or by threat of imminent death, serious bodily injury,
b. He has substantially impaired her power to control her conduct by administering without
her knowledge drugs, intoxicants or other means for the purpose of preventing resistance;
c. The female is unconscious
d. The female is less than 10 years old
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a
felony of the third degree if:
a. He compels her to submit by any threat that would prevent resistance by a woman of
ordinary resolution; or
b. He knows that she suffers from a mental disease or defect which renders her incapable of
appraising the nature of her conduct

39

MENS REA
MENS REA STANDARD
Recklessness: honest belief is enough (?)
OBJECTIVE:
o People misunderstand each other
o Gender gap in sexual communications exists
If we restrict or eliminate the mistake-of-fact defense, some men will be
convicted of rape even though they had reason to believe consent
o Deeper problem: rape law's assumption that a single objective state of affairs existed
but many rapes involve honest men and violated women.
To solve this by adopting the standard of reasonable belief without asking
what conditions make it reasonable, is one-sided, male sided.
SUBJECTIVE:
o Under a truly subjective approach, Defendant would be innocent where his state of
mind is that of a sexist pig who thinks women love to be forced.
NONCONSENT
A person is not guilty of rape if, at intercourse, he had a genuine and reasonable belief that the
female was voluntarily consenting. Jury decides reasonableness.
Why?
People v. WarrenTo Put Defendant on Notice
Victim was 5'2", 100 pounds, Defendant was 6'3" 185 pounds. She was on a bike path and he
picked her up and carried her away. She didn't scream or fightshe was frozen. HELD: her fear
was not reasonable. There has to be resistance. The court is worried about the Defendant's lack of
knowledgehe has to be on notice. He didn't think he was being threatening.

Honest but unreasonable is a defense

Regina v. MorganHonest but Unreasonable is a Defense
Morgan tells 3 others they can go to his house and have sex with his wife. He says that she will
struggle but this is b/c she is kinky not because she doesn't want to have sex. HELD: any honest
mistake as to consent is a defense to rape no matter how unreasonable and outrageous. Butthe
court affirmed the conviction: so reasonableness is not irrelevant. So the holding is irrelevant: the
more unreasonable the belief, the less likely it is that a jury will believe the mistake. The jury will
laugh at D. He had to be at least "RECKLESS" then.
There's a possibility of both an objective and subjective standard.
NOTE: under Model Penal Code: they would have been convicted b/c mistake is a defense if it
negatives some culpability or mens rea. Here it had to be recklessness.
Compare to State v. Kelly: court found that the actual knowledge of the owner's nonconsent is
required for a larceny conviction.
Not guilty of mistaken since the felonious intent is lacking.
Commonwealth v. SherryStrict Liability Position
3 doctors have sex with Victim who verbalized her nonconsent. HELD: rape convictions affirmed.
Victim is not required to use physical force to resist; any resistance is enough when it
demonstrates lack of consent is honest and real. Mistake of fact requires good faith and
reasonableness. When a woman says no, whatever D is thinking otherwise is legally irrelevant

40

and thus no defense. Any further action is unwarranted and the person proceeds at his peril. He
assumes the risk. (Strict liability standard)

VI. EXCULPATION
JUSTIFICATION
The Defendant concedes that they are responsible for the action but believe they should be acquitted
because it was the right thing to do.
SELF-DEFENSE
Self defense is a complete defense. It doesn't negate mens reait's a "Yes, but" defense.
5 ELEMENTS
1.
2.
3.
4.
5.

Honest and reasonable belief

Imminent or immediate threat
Unlawful force
Such force is necessary to defend against the other person's
And one's own use of force is not excessive

HYPOS: Can A successfully claim self-defense?

A commits an armed robbery and hides from the police. A reasonably believes that when the
cops see him, they're going to shoot him. So he shoots the police officerNO. The cops
force has to be unlawful and it isn't
A has a grudge with B and shoots him. He learns later that B was about to kill himNO.
You can't invoke the defense on things you learn after the fact. Must have belief at the time.
B comes after A with a gun. A shoots first and kills him. He's happy because he has wanted
to kill BYES. If all the elements are met, it does not matter if you have some additional
less admirable motives at work.
A and B have a heated argument and B says "I'm going to get my gun." A follows him and
kills himNO. Threat not imminent.
o With self-defense, the law is saying that even if you've intentionally killed a person,
we're not going to call it a crime.
If you're under some urgent danger, and the police can't help, then you have
to take care of yourself.
But if you have a change to get help, the law expects you to do that.
What if A says that there's a warrant out for his arrest and he can't call the police?NO. He
may have an unpleasant choice, but won't be exonerated.
B says "I'm going to punch you in the nose" and A shoots himNO. Must match force with
force. If somebody uses non-deadly force, you can't use deadly force.
A is sitting at a bar and hes heard that B has been going around town saying hes going to kill
him. B walks into the bar with his hand in his pocket. A shoots him.??
o Reasonableness is a totality of the circumstances test
o In this situation, imagine that B was just going to blow his nose and we say that he
should have the benefit of the defense, why should he get acquitted? Is this fair?
Anna, a white woman, on a deserted street at an ATM, and shes nervous. A young African
American man asks for directions and she kills him. Self Defense?
o Reasonable belief?
o Imminent threat?
THE 'AGGRESSOR' ISSUE

41

A person may not use deadly force in self-defense if she is the aggressor at the time of the
conflict. An "aggressor" is a person who commits an "unlawful act reasonably calculated to
produce an affray foreboding injurious or fatal consequences."

HYPO: A and B get in a fight and B pulls a gun out and A pulls his gun out faster and
shot quicker but missed. Can B shoot back and claim self defense? NO.
o A's response was lawful force.
So one of the elements is missing.

LOSING AGGRESSOR STATUS

One can begin as the "aggressor" but become a "nonaggressor" and thereby regain the right of
self-defense as long as you effectively withdraw from the initial encounter.
o

HYPO: A and B are in a fight and B says, "I'm going to beat you to a pulp but then
changes his mind and says, "I'm going to go home." A comes after him and beats him
up.
Not an imminent threat of force.

MODEL PENAL CODE3.04

The use of force upon or toward another person is justifiable when the actor believes 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. (Use of "believes" means subjectiveSee 3.09 for limitation)
SELF-DEFENSE AND RACE
People v. Goetz
Defendant was on a train when approached by 2 out of 4 black thugs who asked him for $5. Defendant
stood up and fired at each victim, hitting each. Rule: May use self-defense if he reasonably believes that
such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or
robbery. HELD: dismissed the counts of the indictment. The determination of reasonableness must be
based on the circumstances facing a defendant or his situation, including: relevant knowledge the
defendant had about that person, physical attributes of both, and prior experiences. The reasonable person
is the product of his environmentthe jury had probably been in the same situation.

1. Statistically, black men commit more crime then white men

a. On the one hand, if we let people decide when they are in danger on the basis of racial
stereotypes, then we allow them to enforce the stereotypesdestructive
i. You'll turn the population into a vulnerable population
ii. Vigilante justice
iii. The people who felt victimized get to control things
b. On the other hand, we have this long-standing doctrine of self-defense.
i. It seems unfair to tell someone that if you are in danger, you are not allowed to act
ii. It's an affirmative acknowledgement of a right: if you can't get help, you should
protect yourself
1. The jury will determine if it is reasonable
iii. People operate with stereotypes: so they will be making this judgment on the basis of
race
1. But if you allow this, then there is a problem:
a. This becomes a CULTURAL DEFENSE

42

HONEST BUT UNREASONABLE BELIEF

MAJORITY RULE
An honest but unreasonable belief is no excuse. No exculpation
MINORITY RULE
MODEL PENAL CODE3.09(2): IMPERFECT SELF-DEFENSE
If you are reckless or negligent in constructing your belief, you cant be found guilty of any
crime that requires a higher mens rea level. You cant be convicted of murder because you
didnt act with intention.
So your mens rea will be used to prosecute you of negligent homicide (if negligent)
or voluntary manslaughter (if reckless)
BATTERED WOMAN SYNDROME
Common law majority: no excuse
Common law minority: could be reasonable
State v. NormanTime Definition of Imminence
D was a battered wife who killed husband while he was asleep. HELD: voluntary manslaughter affirmed
threat was not imminent. Perfect self-defense: at the time of killing, defendant believed it to be necessary
to kill the decedent to save herself from imminent death or great bodily harm. Imperfect self-defense: e.g.
D is the initial aggressor, but without intent to kill the decedent escalates and D kills to save herself. In this
situation, culpability is reduced to at least voluntary manslaughter; D is not justified. BWS is not a defense
when threat was not imminent. This would expand the meaning: subjective speculation that the decendent
probably would present a future threat. Even if BWS is a defense, the killing was excessive.
Dissent: for the battered wife, if there is no escape then the next attack is imminent. The question is not
whether the threat was in fact imminent, but whether defendants belief in the nature of the threat, given the
circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.

2 DEFINITIONS OF IMMINENCE
1. TIME: immediate; if you had time to run for help, then there's no right to self defense.
a. Traditional definition of 'imminence'
2. FUTILITY: no matter what she did, it did not work for her. We failed as a society. So she does
have the right to defend herself.
Ha v. State (783)
Victim is a member of a violent clan and says: youre dead. Defendant kills him. Futile for him to
go to the police: he doesnt speak English. Did the court believe Ha that he was in serious danger?
Yes. Its inevitable but not immediate. HELD: no self-defense.
State v. Schroeder (782)
Inmate stabbed cell-mate while asleep b/c decedent threatened to sell D's gambling debt to another
prisoner. HELD: no right of self defense. Words werent enough provocation.
POLICY: Worry: threats cant become enough. Is that the right result in this case?
Reasonableness of the imminence: Jail cell- 5x9

43

Janke v. State
Boy subject to physical and psychological abuse shoots father. HELD: voluntary manslaughter.
No defense. "Although many peopleseem to be prepared to espouse the notion that a victim of
abuse is entitled to kill the abuser, that special justification defense is antithetical to the mores of
modern civilized society."

POLICY:
If we allow futility to be the definition, there's a danger that we allow people to make their
judgmentsclaim self-defense when the law is not formulated to take it into account. We
have to accept all types of potential for error. If just time, that danger does not exist.
Isn't this just turning self-defense into killings that are morally justified? See Jahnke.
EXCUSE
The Defendant concedes that it was a bad thing to do but claim that they are not responsible. (e.g.
insanity)
3 CATEGORIES
1. INVOLUNTARY ACTIONS:
a. Person had no control over his bodily movementsVery NARROW: cannot have
control over limbs
2. DEFICIENT BUT REASONABLE ACTIONS:
a. D has the power to choose, nothing prevents him, but the choice is so constrained that
an ordinary law-abiding person could not be expected to choose otherwise.
b. Constraining Circumstances: 2 kinds
i. Cognitive Deficiency: defect of knowledge
1. The lack of knowledge must itself be excusable, in the sense that he
was not reckless in making the mistake (of fact.)
ii. Volitional Deficiency: defect of will
1. E.g.: Duress: when a person commits a crime under threats of
physical injury that even a person of reasonable fortitude would have
yielded to the threat.
3. IRRESPONSIBLE ACTIONS: this person could not have been expected to act otherwise,
given the persons inadequate capacities for making rational judgments.
a. E.g. infancy and legal insanity
DURESS
When the law allows a defense to a wrongful action because the actor has displayed some disability
in capacity to know or to choose, which renders the person either free of blame or subject to less
blame.
COMMON LAW4 ELEMENTS
1. Immediate/imminent threat
2. Of death or great bodily harm
3. Defendant reasonably believes the threat will be carried out
a. Much more objective than the other standards
b. The belief must be well-founded fear
c. Why more objective? This is total acquittal.
4. Not applicable to murder: But in some jurisdictions, it can be used as a defense for FM
State v. ToscanoMPC Standard (CL Still Requires Death or GBH)

44

Leonardo told D to defraud insurance companies by threatening him by saying that he knew where D lived
and that he and his wife would be jumping at shadows. Duress? HELD: yes. When the source of coercion
is a threat of future harm, courts found that D had a duty to escape. The MPC departed from the
requirement that the result be death or serious bodily harm and immediate and aimed at the accused.
Reasonable fear. Under both model codes, Defendant would have had his claim submitted to the jury.

IMMINENCE REQUIREMENT
TIME
United States v. Fleming
Prisoner of war with no where to go was forced to disseminate anti-war propaganda. HELD: the
accused cooperated with his captors upon the mere assertion of the threats. It was not at all certain
at the time the threat was made that walking north would cause death at all. If accuseds captors
had actually made him start on foot, and then it became evident that he could not survive the
march, a valid defense of duress might have arisen. The threats were vaguethey didn't do
anything yet.

FUTILITY
Why in duress are they willing to expand the immediacy requirement? Lesser of two
evils idea.
United States v. Contento-Pachon
Forced to smuggle drugs to US. The result was imminent but not inescapable. If the police
were unable to provide protection, then the defense is ok. Why?... Maybe we're willing to
accuse police in other countries of being inadequate.

MODEL PENAL CODE2.09

If a person is coerced to commit a crime, and if commission of the crime is the lesser of two evils,
the defendant may also raise the Code's "choice of evils" defense.
(1) Available if Defendant engaged in the conduct charged because he was coerced to do so by
the use of, or a threat to use, unlawful force against his person or the person of another, which
a person of reasonable firmness in his situation would have been unable to resist.
NOTE: It is not necessary to show that Defendant was ordered to commit the particular
offense.
(2) Defense unavailable if the actor recklessly placed himself in a situation in which it was
probable that he would be subjected to duress.

Nature of the coercion: must be coerced to commit the crime by the use, or threatened
use, or unlawful force, against her or another
Nature of the force: need not be deadly, as required at common law.
Reasonable firmness test: a person of reasonable firmness in Defendant's situation would
have been unable to resist the coercion
Blameworthiness of the coerced actor: the defense is unavailable to the defendant who
recklessly placed herself in the coercive situation.

45

NECESSITYJUSTIFICATION
1.
2.
3.
4.

Reasonable belief
Imminent and unavoidable harm unless Defendant breaks the law
Defendant not at fault
Harm avoided would have been greater than harm caused
a. It was the lesser of two evils

Difference between duress and necessity:

Duress: other person causing the situation
Necessity: natural causes
Why should it matter whether the peril is from another person or from some natural event?
HYPO:
o X drives over two people at gun point to save himself.
He is not justified under necessity
But will be excused under Model Penal Code Duress if a person of reasonable
firmness in his situation would have been unable to resist.
o X is prevented from stopping by suddenly inoperative brakes and runs over two people to
save his life.
He will not be excused under duress (Model Penal Code)3.02
o I'm going to beat you up unless you beat him up until he is almost dead
Duress? Yes.
Necessity? No. Greater harm was not avoided.
o I'm going to kill you and your 12 children unless you kill him.
Duress? No. Doesn't apply to murder
Necessity? Maybe. There's a weighing.
GAP:
o Someone whos facing a threat from natural causes and chose the greater of two evils and a
reasonable person would have done the same, then no law covers you.
o HYPO: Dudley: instead of killing Parker, he kills two other people to stay alive, does he get
the necessity defense?
Necessity? Two lives versus one life
Duress? (Without the fourth element)
There has to be a threat: cant be natural

46

INSANITYEXCUSE
At the time of the offense, Defendant was legally insane so as to create an excuse defense. It doesn't
negate any element of the crime (this is controversial)it is possible to have an insane person who
did the actus reus with the required mental state.
NOTE: There must be a relationship between the insanity and the criminal conduct so that it is
proper to hold Defendant not guilty of the crime.
M'NAGHTEN TESTCOMMON LAW RULE
1. Mental Disease or defect, and because of it
2. Either
a. He didn't know the nature and quality of the act, or
i. Physical Nature of what he was doing
b. He didn't know that what he was doing was wrong
i. Physical Consequences of what he was doing
MNaghtens Case
Defendant came to London to murder the Prime Minister because the Tories were persecuting him. D was
obsessed with delusions and suffered from acute insanity. HELD: not guilty. Insanity was determined at
the time of the act and whether he had the use of his understandings, so as to know that he was doing a
wrong or wicked act. If not sensible, then a verdict in his favor, otherwise, against him.
Did he know the nature and quality of his act? Yes, he knew he had the gun and it would kill.
Did he know that what he was doing was wrong?

DEFINITION OF A MENTAL DISEASE OR DEFECT

Most of these cases will suffice as long as you can show that you didn't know what you were
doing or that it was wrong because of the disease; then it will be allowed.
o Psychosis, Neurosis, Organic physiological defects, Intelligence
Other types tried but don't work:
o Post-traumatic stress disorder
o Postpartum psychosis
o PMS: not a mental disease or defect: not a total delusion
o Battered Woman Syndrome: in most cases it does not apply for the same reason as
PMS:
It's not a total psychotic break
o Homosexual panic: straight man becomes so upset by a homo that comes on to him
that he kills him
In some cases in CA, it has succeeded against assault and murder charges
This might be a minority view though
There's no civil commitment because there's no continued danger to society
o ALCOHOLISM:
McDonald (911): what psychiatrists consider a disease may be different from
disease for the jury's purpose in determining criminal responsibility.
APA Definition: not attributable primarily to the voluntary ingestion of
alcohol
So, no alcohol defense

DEFINITION OF WRONG

LEGAL WRONG:

47

If we told the jury that it meant a legal wrong then it might lead the jury to believe
that mistake of law is a defense.
It would confuse the jury
MORAL WRONG:
o 2 Possibilities
Individual's sense of wrongThis is too subjective
Social Norms
Crenshaw: it is important to note that it is society's morals and not
the individual's morals
o It is not enough for the defense to show that he thought he
was right
He had to have been right according to society's
morals
This is the preferred standard
EXCEPTION
o If the defendant acted because he thought that G-d told him
to do it, then we would find an insanity defense regardless of
society's morals.
o

State v. CrenshawMeaning of Wrong

Defendant killed his wife because she had an affair. He followed the Moscovite religion.
Defendant also had a history of mental problems. HELD: he knew his acts were illegal,
therefore, no defense. The definition of the term wrong: legal wrong b/c it is
synonymous with moral wrong in this case. His personal beliefs cannot serve to
exculpate him from legal responsibility for his acts. Relationship of the mental illness to
the theft not the same as the relationship to the killing. Must be a link between mental
illness and crime committed. Not guilty because deific command doesn't count.

MODEL PENAL CODE: The code invites legislatures to choose between the words
"criminality" and "wrongfulness." States applying this test have divided nearly evenly on
which term to use.

RATIONALE FOR INSANITY

Why do we call them ill rather than criminal?

Porter (880): The purpose of the law is to deter people from committing offences. It is
perfectly useless for the law to attempt to deter people if their mental condition is such that
they cannot be in the least influenced by the possibility of punishment.
o Kind of circular: if you don't understand what's wrong, you can't be deterred
Lyons (892): Dissent: doesn't make sense to find someone guilty if they can't tell the
difference between right and wrong.
Blake v. United StatesAdopted MPC
Defendant robbed bank under which he claims was performed as a result of his insanity. The trial
court defined insanity as a "perverted and deranged condition of the mental faculties as to render a
person incapable of distinguishing between right and wrong, or his will has been otherwise than
voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control."
He could not have prevailed under the trial court instruction (Davies). But under the Model Penal
Code standard of substantial capacity, he could. HELD: reversed the conviction under the new
standard. The court substituted "wrongfulness" for criminality.
US v. LyonsReverted back to Common Law from MPC

48

Narcotics addiction raises no issue of a mental defect or disease. HELD: reexamining the Blake
standard (below), the volitional prong of the insanity defense, a lack of capacity to conform one's
conduct to the requirements of the law, does not comport with current scientific knowledge. No
objective basis for distinguishing between offenders who were undeterrable and those who were
merely undeterred. The risks of fabrication and "moral mistakes" are greatest when the experts and the
jury are asked to speculate whether the defendant had the capacity to control himself or whether he
could have resisted the criminal impulse.

ALTERNATIVES
IRRESISTIBLE IMPULSE TEST
2 ELEMENTS:
1. Had mental disease or defect which
2. Kept him from controlling his conduct.
CRITICISMS

Reliability of Proof: How are we supposed to distinguish between impulses that are
irresistible from those that are not resisted?
o Psychiatrists cannot reliably distinguish between a person who cannot control her
conduct and one who does not control it.
This test is still too narrow: It requires proof that the action be impulsive.

THE 'PRODUCT' OR 'DURHAM' TEST

2 ELEMENTS
1. Product of (but for)
2. Mental disease or defect
CRITICISMS & DIFFICULTIES

Prosecutor has to show, that if the Defendant didn't have this defect, they would have
done it anyway
o This is a difficult burden
Gives the psychiatrist too much control over the process (insanity in general gives the
psychiatrist too much control)
This test expands the scope of insanity too far
o HYPO: Defendant made up the fact that his wife was in the middle of infidelity
and so he raced home to catch her and he hits a child on the way home.
This would exculpate a person who could be deterred, and who had
sufficient control of his actions that he might fairly be blamed for his
conduct
This is because this test holds that anyone who is mentally ill cannot be
deterred.

MODEL PENAL CODE TEST: 4.01"Ali Standard"

(1) Mental disease or defect, as a result of which Defendant lacks substantial capacity
(2)
(a) To appreciate wrongfulness of act, or
(b) To conform conduct to the requirements of the law

49

CHANGES

"Know" versus "appreciate"

o The Code uses "appreciate" rather than know because they're concerned that
you can know what you are doing is wrong but you didn't fully conceptualize
it: detached awareness
This avoids a narrow interpretation like M'Naghten:

It avoids using the word "impulse" and substitutes it with "lacks substantial capacity"
Volitional Prong: Model Penal Code incorporates both
o M'Naghten refers only to cognitive
o Irresistible impulse test refers to volitional

CRITICISM
o
o
o

If you favor a narrow M'Naghten definition of insanity, then you might not like the
Model Penal Code because it includes volition
If you favor a broader definition, then you might not like the Model Penal Code
because it includes cognition
Some believe that they used an outdated psychological assumption that you can
divide the mind into volitional and cognitive functions

50

VII. SENTENCING
The most serious punishments that the state can impose are the death penalty (DP) and term of years
(TY)
SENTENCING PROCESS
Legal issues surrounding incarceration:

Historically, judges have had undiluted discretion when sentencing

o How to punish:
Grid
On the x-axis: the offense
On the y-axis: criminal history
This has many effects:
Increased the prison population
Spawned a lot of litigation
o Constitutional challenges:
8th Amendment: challenge sentences
The idea of cruel and unusual punishment principle has an element of
proportionality
o E.g. sentence to death for littering
This has not had much success
Rummel: passes a bad check and sentences to life without parole
Harmel: first time offender possesses a shit load of cocaine, sentenced to life
without possibility of parole
Court: it's true that there's a proportionality principle, and sentences that
are grossly disproportionate will violate the 8th, but this is not one of
them
o CA 3 strikes challenges: most severe in the country; it allows people to be put away for
nonviolent offenses for life (it has a list of strikable offenses):
The first two have to be listed
The third strike can be any felony
Two cases: Ewing and Andrate
Both petty theft: sentenced 25 years, and the other 50 minimum
The CA SC said it didn't violate the 8th Amendment
If you want to change it, must use the political process
Why would it be difficult to repeal this law?
Message: soft on crime
Statistics:
o Number of people Incarcerated:
330,000: 1970
2,100,000: 2003
Drug laws: mandatory minimums
o 500g of powder cocaine and 5g of crack cocaine will get you the same sentence
Demographics of who uses it: blacks use crack cocaine more: incarcerates more
blacks
One of the reasons they passed this was because the black caucus pressured them
to

51

VIII. DEATH PENALTY

Two relevant Amendments: 8th and 14th
EIGHTH AMENDMENT
SUBSTANTIVE REQUIREMENT
Some argue that execution on its face is cruel and unusual punishment
Therefore, you can't enforce it.
This hasn't been widely successful
Brennan and Marshall
The other side is that it is per se constitutional: therefore the drafters must have thought that it
wasn't cruel and unusual (Scalia)
Response:
The Constitution is an evolving document
What they thought is cruel and unusual is different than what we think is
o Evolving standards of decency: we don't know in the abstract what
aspects of the death penalty are cruellook to society to see.
PROCEDURAL REQUIREMENT
o
o
o

They merge the 8th and 14th here

If it's not in violation of the 14th, there has to be some consistency or uniformity in sentencing
Can't be "Arbitrary and Capricious"
So what the courts have done is to raise the 8th and 14th together

FOURTEENTH AMENDMENT
COMMUTING THE PENALTYWHY?
Furman v. Georgia (494)
Capital punishment violated the Eighth Amendment's prohibition of "cruel and unusual punishments." The
Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems
that permit this unique penalty to be so "wantonly and so freakishly imposed." The process is random and
bizarre and arbitrary and capricious. You can have the death penalty, but go draft something that will work.

STATE RESPONSES3 BASIC PROCEDURES

MOST SIGNIFICANTGUIDED DISCRETION
Gregg v. Georgia (494)
The 8th says we should consider evolving standards of decency (this idea is unique to the death
penalty). HELD: impossible to say that evolving standards have led the people to reject the death
penalty: why? In response to Furman, 38 states drafted new standards for the death penalty, and
they represent the people. What is Georgia procedure? Bifurcated system: you get 12 jurors, they
decide guilt. Once they find guilt, they move to the sentencing phase. If the jury wants to sentence
to death, they have to find that an aggravating circumstance exists (list of 10). If they find it, then
mandatory death penalty. If they don't find one, then they can't impose death. This a procedure for
aggravating and mitigating circumstances.

What does the Court say about this procedure?

52

It doesn't violate Furmanthere is definitely discretion but it is

guided discretion. The discretion is to grant mercy.
o The decision to impose it had to be guided by standards so that the
sentencing authority would focus on the particularized circumstances
of the crime and the defendant.
What might be the concern about discretion?
o The race of the defendant was not so much relevant, but the race of
the victim
o

Woodson:
Mandatory DP for 1st degree murder
Does this satisfy Furman?
The Court said no
It doesn't allow for any individualization
"The fundamental respect for individual dignity underlying the Eighth
Amendment requires the particularized consideration of relevant aspects of
the character and record of each convicted defendant
Two Considerations

If its too discretionary, it becomes arbitrary and capricious

On the other hand, it can't be too rigid because then you're not going to tend to the
individual dignity underlying the 8th Amendment
This is where guided discretion comes from

Discretionary
Arbitrary and Capricious

Guided Discretion

Rigid
No Individualization

Jurek: 5 categories
The jury then answers 3 questions
o If yes to all, death penalty
The Court said the idea of future dangerousness is the category where the
jury can take into consideration aggravating and mitigating circumstances
LocketBased on Jurek
If you find one of 7 circumstnaces
The court strikes this statute down:
No opportunity to bring in mitigating circumstances
The sentencer must not be precluded as a mitigating factor, any aspect of a
Defendant's character or record and any of the circumstances of the offense
Any mitigating evidence
o So, now, on the one hand, you can't be too rigid or too loose
o But then it says that any mitigating evidence can be introduced
Tension between Furman and Locket
Furman: can't be too loose
Locket: any mitigating evidence
Callins v. Collins
o Blackmun: No combination of procedural rules or substantive regulations ever can save the
death penalty from its inherent constitutional deficiencies.
o Scalia: there is a tension with Woodson and Lockett and Furman,
Lockett and Woodson are bad law

53

The death penalty is not the problem

54