CRIMINAL LAW VOLOKH FALL 2007

ACTUS REUS
1) Movement- Pulling trigger, etc.
2) Conscious and Volitional
- drunk in public requires being in public to be voluntary Martin, CB 127
- conditioned reflex response = not conscious, so no Actus Reus (father stabs son, Utter,
CB 129)
- Except: Defendant Caused Unconsciousness, or had knowledge of pending
unconsciousness
OMISSION CB 137
Legal duty to act:
- Status Relationship: Spouse-spouse, Parent-child, Master-seamen
- Contractual duty
- Seclusion: start to rescue and place them out of others view, putting them in a worse
position
- If D caused the harm
- Caused harm negligently (or even non-negligently)
- Caused harm by duress or deceit
- Statutory duty: some particular professions, some states have a duty to report/rescue
- NO duty from boyfriend to girlfriend Beardsley CB 134
MENS REA
See MPC 2.02 General Principles of Culpability, CB 980.
Missouri Knowledge requires actual knowledge, unlike MPC. (Underage stripper, CB 162)
INTENT
Transferred intent: A person acts intentionally as the term is defined, if the result of her
conduct differs from that which she desired only in respect to the identity of the victim.
Can't transfer from a victim hurt as much as was contemplated. It has to transfer from an
intended victim who wasn't hurt, or was hurt less than what was intended. The intent is "soaked
up" by the victim and can't transfer, if the intended victim is hurt/killed as planned.
If A kills B and knows he'll probably kill C, intent to purposely kill B DOES NOT transfer to C.
If A tries to kill B and misses, killing C, the intent to kill B transfers to C.
If A tries to kill B, and injures B but kills C, the intent to kill B transfers to C.
Intent Defined: when Ds conscious objective or purpose is to accomplish the result and the
results that he knows are virtually certain to occur even if he doesnt want the result to happen
(Bottle Attack, Conley CB 151)
D is presumed to intend the probable and natural consequences of his actions. (Conley CB 151)

Non-Rape SEXUAL ASSAULT

California (Syllabus 18) (assume
recklessness)

MPC 213.4 (CB 1020) (These rules are complex)

Touching (physical contact, including through

clothing) of

Causes sexual contact with a person not his

spouse

intimate part of another person

(sex organ, anus, groin, buttocks, female
breast)

Sexual or intimate parts

Against will of the person touched

1.

- In class, we assumed the MPC rules apply, so 2.

use recklessness for mens rea as to this
element.
3.
4.
5.
6.
7.
8.
For purpose of sexual arousal, gratification or
abuse

Knows that the contact is offensive to the

other, or
Knows has mental defect which makes
incapable of appraising nature of conduct, or
Knows is unaware a sex act is being
committed, or
Other is less than 10 years old, or
Has substantially impaired other w/ drugs,
or
Under 16, actor at least 4 years older, or
Under 21, and actor is guardian, or
Detained in an institution and D has
custody over

purpose of sexual arousal or sexual gratification

MPC exceptions (CB 1020-1021): Check these for age mistake, "spouse" issues,
promiscuous complainants
RAPE
1. Coercive Force or threat of force
2. Sex
3. Absence of Consent (purely based on the victims mental state factual question)
- If she was consenting, but D believed she was not consenting, then could be guilty of
attempted rape.
(Minority: NJ- force not necessary although force helps prove lack of consent - MTS Rape Case,
CB 432)
Possible Types of Consent:
Enthusiastic consent

Non-Criminal

Unenthusiastic consent

Non-Criminal

Nonconsensual, non-forcible Possibly Criminal (Alston CB 399 says not rape)

Nonconsensual, forcible

Always Rape

MENS REA for Lack of Consent:

Massachusetts

S/L
(Sherry Court said maybe negligence but doesnt
decide CB 451)

Common Law majority (MTS

CB 432)

Gross Negligence

MPC

Recklessness

Britain (Morgan Case CB 457)

Recklessness

HOMICIDE CHART

Mens Rea

Common Law Homicide Offenses

Model Penal Code

S/L

Felony Murder (See Next Page)

No Felony Murder under MPC

Non-negligent

(not speeding, kid jumps in front = No

Crime)

Reasonable
Mistake

No Crime

No Crime

Simple
Negligence

No Crime

No Crime

Gross
Negligence

Involuntary Manslaughter

Negligent Homicide

Recklessness

Involuntary Manslaughter

Manslaughter

Extreme
Recklessness

("Extreme Indifference to Human Life"

Murder, or depraved heart murder or
implied malice.)

Murder (210.2 (1b))

Extreme indifference to human life Recklessness and indifference PRESUMED:

1. Does an act
Engaged, attempted, flight after en.or at.:
2. With high probability that it will result Robbery, rape, deviate sexual intercourse
in death
by force or threat of force, arson, burglary,
3. And does it with a base antisocial
kidnapping or felonious escape.
motive
4. And with a wanton disregard for
Cannot Conspire for this no intent to kill
human life.
(Swain, CB 818)
(CB 295 Benitez pit bull guarding
marijuana)
Knowledge

Murder

Murder (MPC has no M1 or M2)

Purpose

Murder / Voluntary Manslaughter

Murder / Voluntary Manslaughter (No M1 or

M2)

1. Have to be actually provoked

2. reasonable person would have been
provoked
3. Killing must have been in the heat of
passion
4. Sudden heat of passion No

1. "influence of extreme emotional

disturbance."
2. "reasonable explanation or excuse"
3. Reasonableness determined:
- from the viewpoint of a person in the

reasonable opportunity to cool off

5. Causal connection between the
provocation, the passion, and the fatal
act.

actors situation, under the circumstances

as he believes them to be.
-If D is provoked to kill, and accidentally
kills more than provoker, all killings can be
downgraded. (rev)

3 Ways to define adequate provocation under common law: (CB 262)

1. Enumerated categories
a. discovering ones spouse having sex with another
b. mutual combat
c. assault and battery
d. injury to Ds relative or a third party
e. death resulting from resistance of an illegal arrest
2. Anything but mere words that would inflame the passion of a reasonable man CB 263
(Girouard, Maryland)
3. Anything that would inflame the passion of a reasonable man CB 263 (Girouard v State)
---- (Casassa CB 281- even if reasonable for HIM to kill, not reasonable)
FELONY MURDER
MPC does not recognize FM. Extreme recklessness murder serves the purpose. MPC 210.2
(1b) CB 1012
NO ATTEMPT FELONY MURDER - Not an Intent Crime - (Maryland Bruce, CB 752)
Homicide in course of felony = murder. Common Law Rules:
1. Felony must be inherently dangerous to life. (Unless the states statute says otherwise)
2. 2 rules:
i.
Inherently dangerous to life in the abstract: (California Rule Howard CB 321)
1. Does felony by its very nature carry a substantial risk of death? (violating
traffic laws does not)
ii.
Inherently dangerous to life/ carry a substantial risk of death in this case.
3. Examples: shooting dwelling, poisoning w/ intent to injure, arson of a motor vehicle,
grossly negligent discharge of firearm, making meth, kidnapping, reckless or malicious
possession of destructive device. (CB 322 Howard)
4. Merger Doctrine: No FM if felonious purpose merged with homicide. (Assault that kills) (CB
330 Robertson)
5. No Merger if there is a collateral & independent felonious purpose. (Robertson CB 330)
6. Proximate Cause (minority rule) (worst for defendant) - If killing was proximately
caused by defendant or co-conspirators, guilty.
7. Agency (majority rule) (better for defendant) - If killing was done by a non-felon, felony
murder does not apply. (Sophophone CB 334)

INCHOATE OFFENSES QUICK REFERENCE

MENS REA

Attempt

Conspiracy

Accomplice

Conduct Crime

Purpose

Purpose

Purpose/ Some CL: Knowledge

Result Crime

Purpose(MPC
belief)

Purpose (Some CL:

Knowledge Lauria)

Same as underlying crime

2 CL Approaches:

Required mental state for

underlying crime, or something
more? (No one knows. Not
litigated.)
(A assists B in having sex w/ C. C
turns out to be underage, but A did
not know that. Is A an accomplice
to statutory rape?)

Mens Rea as to
Same as
Attendant
underlying crime
Circumstances
(knowledge of
(CL and MPC)
elements of a crime)
(age of victim, etc)

1. Knowledge/Purpose
2. Same as underlying
crime
MPC: Does not answer

DEFENSES
Remember: The First Defenses are Police and Prosecutorial Discretion.
Acts "justified" by a defense (self-defense, necessity) are lawful. You cannot lawfully defend
against them.
SELF-DEFENSE DEFENSE JUSTIFICATION Cannot lawfully defend against act justified by
self-defense
Common Law - Self-Defense is justified when:

MPC

Reasonably believed (Majority rule- minority

follows MPC).

Sincerely believed - (if your belief is

unreasonable, the jury might think you are
insincere)

Reasonable person would believe, and D sincerely

believes (Goetz, CB 504)
In some states (California Rule) - Sincere but
unreasonable belief can reduce murder to
manslaughter.

Sincere belief is not a defense against crimes

requiring gross negligence or recklessness as
the Mens Rea - Negligent Homicide, for
example.

To be necessary against imminent threat

Immediately necessary (practically identical
(Must be instantly met, no chance to get help from to Common Law)
others. (Norman, battered wife, CB 525))
(if D's force non-deadly) of unlawful force
(unjustified)

(If D's force non-deadly) of unlawful force

(same)

(if D's force deadly) of death, serious bodily injury,

(If D's force deadly) - same (but not allowed

rape, kidnapping, robbery?, burglary? (NY allows

robbery CB 507)

for robbery and burglary, unless there is a

risk of death to the D see property
protection, 3.06(3d) CB 993.

And D is not the aggressor (Majority rule)

D did not provoke the use of force with the

PURPOSE of causing death or serious or
bodily injury

(Majority rule) Even if D refused to retreat Minority rule: If you could have avoided the
problem by retreating, you have no right to use
deadly force in self-defense. (unless in your own
home)

Deadly force OK unless D knows that he can

retreat with complete safety or comply with
certain demands (sec. 3.04 (2 (B) (ii))
(We have no idea how far this requirement
goes)

MPC Exceptions (3.04 (2) CB 990): Check these if there are issues with arrests, trespassing,
property recovery.
MPC Mistake in Self-Defense: (3.09 CB 998):
1. If reckless or negligent in having belief that force is necessary, or
2. If recklessly or negligently injures or creates a risk of injury to innocent persons,
3. self-defense unavailable for crimes with recklessness or negligence as mens rea.
DEFENSE OF OTHERS (MPC 3.05, CB 991)
If someone has right to use force in defense of self, then you have a right to use the same force
to defend them.
DEFENSE OF PROPERTY
LETHAL FORCE allowed in Texas. See Syllabus 29. MPC lethal force not allowed- this is
COMPLEX - 3.06 CB 992
NECESSITY DEFENSE JUSTIFICATION - [*] = what some states do

MPC (3.02 - Justification for choice of evils)

CL (about half the states) - BUT law

enforcement and prosecutorial discretion
will still avoid prosecution

D Believes (subjective)

D reasonably Believes (objective)

Conduct is necessary
(likely means (a) no alternative could reasonably be
expected to work, and (b) sufficiently likely that D's
conduct will work

"

To avoid harm

To avoid [imminent*] harm [brought on by

natural forces*]
[limited to danger of personal injury*]

(3.02 1a) harm sought to be avoided by D (take D's

view of the facts)
Harm sought to be prevented by law

"
(take D's view of the facts IF REASONABLE)

(D's mens rea as to moral balancing of harm doesn't

matter)
[not including force vs. innocent*]
[not including serious felony*]
(3.02 1b & c) only if no law deals with the specific
situation

"

- Escaped prisoner can assert necessity if it was lesser of two evils (to stay and be sexually
assaulted) CB 594

INSANITY DEFENSE EXCUSE Can lawfully defend against act excused by insanity
Tests

Element 1

M'Naghte Defect of
n
reason, from
disease of the
mind

Element 2

Criticism

So D did not know nature

and quality of act, or not
know that what he was
doing was wrong

Left: People might know what they were

doing was wrong, but are crazy and can't
help themselves

Irresistibl Diseased
D driven by insane impulse
e Impulse condition of the to commit act
mind

Left: Too "all or nothing" - what if you

were capable of resisting but it was
extraordinarily difficult to resist

Product

Mental disease Of which D's act is the

or defect
product

Right: Difficult for the jury to figure out psychologists had too much power. Plus,
some people might have a disease from
which the act was a "product", but other
people with the same disease can resist
doing the bad act.

MPC
4.01
CB 999

Mental disease That leads D to lack

or defect
substantial capacity to
appreciate the
criminality/wrongness of
conduct, or to conform
conduct to requirements of
law

DURESS DEFENCE EXCUSE Can lawfully defend against act excused by duress
- If Duress succeeds, the compelling party is guilty of the crime. (Unger CB 596)
MPC

Common Law (~ half of states)

Threat of

Threat of "immediate" (or "impending") = likely to

occur so quickly that the D cannot escape the
situation. CB 585

Unlawful force (to self of another)

Of Death or serious bodily injury (to self or

another)

That reasonably firm person would have been

unable to resist

Well-grounded (= reasonable) fear threat will be

carried out

Probably no reasonable opportunity to escape

threatened harm

No reasonable opportunity to escape threatened

harm

Is a defense against murder

Not a defense against murder

NOT if recklessly placed self in situation where

duress likely or negligently placed self in situation
where mens rea for crime is negligence

"

MISTAKE what mistakes exculpate?

Mens Rea
Requirement

Reasonable
Mistake

Unreasonable but honest, Non- Reckless

Reckless Mistake
Mistake

Strict Liability

No

No

No

Negligence

Exculpate

No

No

Recklessness

Exculpate

Exculpate

No

Knowledge

Exculpate

Exculpate

Exculpate

Purpose

Exculpate

Exculpate

Exculpate

Mistake of fact or law can exculpate if it negates the MENTAL STATE required for an element of
a crime.
- Navarro, beam theft, CB 191 (MR was knowledge, he made an honest mistake)
Mistake of law does not exculpate in regard to whether a law exists, or what its elements
are. (Marrero, gun, CB 196)
CAUSATION
Actual Cause - X actually caused Y
A: "but for" cause (If you help a D who could have gotten help elsewhere, that does not
exculpate-Manes gave gun)
B: Substantial Factor (but for falls within substantial factor - a substantial factor is only not a
"but for cause" in strange circumstances - like if two people inflict mortal injuries on someone
simultaneously. )
Does Intervening Cause break chain of causation (and therefore exculpate the defendant):
Coincidence? (more D friendly)

Or Response? (conscious reaction) (less D friendly)

Proximate Cause if foreseeable (more D Proximate Cause if not abnormal (less D friendly)
friendly)
ATTEMPT - CL
Common Law: Attempt requires PURPOSE for the Mens Rea. (Illinois Gentry CB 748).

Attempt Homicide: Under CL, can only be Attempt Murder or Attempt Voluntary Manslaughter.
(No attempt FM)

CL TESTS (6 at CB 756 (Mandujano))

Dangerous proximity: how much is left to be done? Must have present intent to accomplish
the crime without much delay, and to have had this intent at a time and place where he was able
to carry it out. (Peaslee CB 761)
Physical and/or Dangerous
Peaslee (CB
proximity: how much is left to be 759)
done?
Mass.

He was stopped by police 1/4 mile away from building

he was planning to burn = NOT ATTEMPT

Physical and/or Dangerous

Peaslee (CB
proximity: how much is left to be 759)
done?
Mass.

Soliciting another do complete the crime, after you

have completed preparations = Last Act, so could be
ATTEMPT

Physical and/or Dangerous

Rizzo (CB 763) They were looking for Rao to rob him, but never found
proximity: how much is left to be N.Y.
him. Never got within dangerous or physical proximity,
done?
so NO ATTEMPT.
Unequivocality: closest to MPC.
How much was actually done?
Was it certain he was going to
commit the crime?

Miller (CB 765) Uncertain whether he came to kill Jeans, so NO

Cal.
ATTEMPT.
(unpopular)
(He was within firing range with a loaded rifle, so
probably would be guilty under dangerous proximity
test.)

Substantial Step strongly

corroborative of purpose (like
MPC).

Reaves (CB
768)
Tenn.

Girls had the materials (rat poison) at the scene of the

crime, and the possession could serve no lawful
purpose, so ATTEMPT.

ATTEMPT - MPC (Summary from CB 1004):

1 a. Purpose (as to conduct, for conduct crime)
1 b. Purpose / Belief (as to result, for result crime)
2. Substantial step strongly corroborative of purpose --- LIST OF THINGS NOT
INSUFFICIENT CB 1005 (MPC 5.01(2))
ATTEMPT IMPOSSIBILITY (MPC considers circumstances as D BELIEVED THEM TO BE)
Different types of impossibility: (Under Modern CL and MPC - the only rules we'll be
responsible for)
1. Factual Impossible. (try to shoot someone with an unloaded gun) - NO DEFENSE
2. Mixed legal impossibility. (Steal property thinking it was someone else's, but it was actually
your own.) - NO DEFENSE
- Thousand sent a picture to a cop, thinking it was a teenage girl. - NO DEFENSE. (CB
783) Mich.
3. Pure legal impossibility. (thought his act was illegal, when it was not a crime) - IS A DEFENSE
4. "Voodoo." With 5.01(1)c, you'd be on the hook for attempted murder if you tried to kill
someone with voodoo.
ATTEMPT ABANDONMENT

An affirmative defense. Requires complete and voluntary abandonment. (MPC 5.01 (4) CB
1005).
McCloskey (CB 797) - Prison Break: Cut barbed wire, had a bag of civilian clothes, but then
changed his mind.
Would have been an attempt if he had been caught cutting the wire.
Note that if he actually escapes and comes back, he cant abandon because he has already
completed the crime.
CONSPIRACY (If you conspire to do multiple crimes, only one conspiracy charge)
Cant Conspire if you are the victim, or if Ds conduct is inevitably incident to the
offense. (MPC 2.06 (6))
CL - 3 Elements

MPC

1. Agreement Between the Parties (Purp. or

maybe Knowl.)
- Can infer agreement (getaway driver, Azim, CB
829), but
- not when crime is unplanned (Cook, bro raped
fallen girl 831)

Agreement between the Parties. (Purpose)

2.

1. Commit an offense
2. Attempt to commit an offense
3. Solicit another to commit an offense
4. Aid another in the planning or commission of
the offense

3.

To commit the crime

(sometimes purpose)

Overt Act in furtherance of conspiracy

(sometimes required)
(need not be criminal)
(can be ambiguous)

Felony, 1st Degree - overt act NOT REQUIRED

Felony, 2d Degree - overt act NOT REQUIRED
Felony, 3d Degree- overt act IS required
Misdemeanor overt act IS required
Can be satisfied by any conspirator, even
before D joined conspiracy. Easy to satisfy.
(UCL 432)

Pinkerton rule (CB 813) : Every conspirator is guilty MPC: Does NOT follow Pinkerton Rule. Every
of those reasonably foreseeable crimes committed conspirator is NOT guilty of those crimes
in furtherance of the conspiracy.
committed in furtherance of the conspiracy.
(only guilty of the crimes, not conspiracy to commit
them, if that wasn't the goal of the conspiracy)
Carter CB 809: Can be guilty of crime AND
conspiracy to commit the crime.

NOT guilty of conspiracy and crime UNLESS

conspired to commit several crimes, and did some
but not all. (UCL 427)

CONSPIRACY MENS REA

CL - Mens Rea
Purpose (or sometimes knowledge) Lauria See below. (Not sure
what majority rule is).
Some juris. have special exceptions that allow inference of purpose

MPC - Mens Rea

Conspiracy requires
Purpose.

from knowledge :
- Stake in the Venture
- No legitimate use for goods or services exists
- Volume of business w/ buyer is grossly disproportionate to any
legitimate demand.
- Sales for illegal use amounts to a high proportion of the seller's total
business.
- Lauria Rule (some jurisdictions (CAL) - not general CL rule):
Knowledge alone is enough, when the target crime is serious enough.
(CB 822)
CL: No Renunciation Defense - Once you have
conspired, you are on the hook for the conspiracy
(UCL 453-4)

MPC: Renunciation IS A DEFENSE if you renounce,

and thwart the success of the conspiracy. (MPC
5.03 (6))

BUT: Renouncing may mean you avoid Pinkerton

liability for later crimes committed in furtherance
of the conspiracy.

ACCOMPLICE LIABILITY
-No crime of "accomplice" (unlike conspiracy and attempt.) You are held liable for the actual
crime.
-Everybody who is an accessory before or during the crime = accomplice.
-Even if your contribution was very small, you are on the hook for the whole thing.
MENS REA (as to underlying conduct)- 3 APPROACHES:
1.
2.

Purpose to aid the underlying conduct (Some CL, and MPC)

Purpose for less serious crimes, knowledge for more serious crimes (Some CL, California --Lauria CB 822)
3.
Knowledge you will aid is enough, if the aid is substantial. (Some CL)
General Rule (under CL and MPC): 2 MENS REAS: You need the purpose to aid the other
person in his conduct. When it's a result crime, he is an accomplice if he acts with the
culpability necessary for that result crime, regarding the result.
Natural and Probable Consequences test (reasonably foreseeable consequences):
Linscott (CB 875) aided the robbery. He had the necessary mens rea for aiding the robbery
(purpose.) The natural and probable consequence was death. So, under CL (Maine) Linscott is
GUILTY.
4 part test for natural and probable consequences liability (CB 878):
1.
Primary party committed target offense OR attempted to commit it.
(Inchoate version of target offense.)
2.
Secondary party was an accomplice in the commission of the target offense
3.
Primary party committed another crime or set of crimes.
4.
Latter crimes were reasonably foreseeable consequences of target offense.
ACCOMPLICE COMMON LAW ACTUS REUS

1. Physical Conduct that actually aids. Trying to aid, and ultimately not helping at all, does not
count. (CL)
In MPC, you can still be an accomplice if you ATTEMPT to aid.
2. Psychological Influence (encouragement). (CL)
3. Ommission. (If you have a duty to prevent the crime.) (CL)
Encouragement = Aid. Really easy to prove encouragement. --- Agreeing to help in the future
= encouragement.
- Buying ticket, promoting activities in magazine, clapping is enough (Wilcox CB 883)
- Agreeing robbery should be committed, asking for bananas, helping with story after crime
(Helmenstein CB 885)
- Mere Presence IS NOT Aid. (Hoselton standing around while friends rob boat, w/out knowledge
they were doing that, or agreement to be a lookout = mere presence and therefore not aid.)
(Vaillancourt CB 880) present while friend kicked window = not aid.
Numbers = encouragement.

Dissent:

Strength in

MPC ACTUS REUS similar to Common Law, except Attempt to Aid Counts
- Can be accomplice by omission, if you have a legal duty to prevent the crime, and w/ purpose
you want it to happen.
(UCL 494)
- Cant be accomplice if you are the victim, or if Ds conduct is inevitably incident to the offense.
(MPC 2.06 (6))
NOTE: If you do enough to help someone that would make you an accomplice under MPC
2.06, but they do not sufficiently attempt or complete the crime, you can be held liable for
attempt under MPC 5.01 (3).

CRIM POLICY VOLOKH FALL 2007

JUSTIFICATION FOR PUNISHMENT
Utilitarianism: Do whatever will result in greatest good for society.
Incapacitation: While in jail, cant commit more crimes
Deterrence: Having been punished, or the possibility of punishment, deters people from crime.
Rehabilitation: Alter criminals motivations teach that crime is wrong, help prepare for legal
life.
Counter-rehabilitation: Punishment worsens a criminals legal social and economic prospects.
Attitude Shaping: Punishing acts can convince people they should not be condoned. (Drunk
driving)
Legitimize legal system: punish to make private retribution unnecessary.
Retribution: Criminal deserves a certain degree of punishment based on how bad his act
was.
- Justification for both heavy punishment, and light punishment or exculpation.

Costs: Incarceration, Appeals, Lost tax revenue from criminal, disrespect for the law if people
think the punishment is wrong = lack of cooperation
Duty to Rescue? Bad Samaritan Laws
Options for Bad Samaritan laws:
1.
2.
3.

Duty to rescue even at some risk

Duty to report - Vermont statue
Duty to testify - what we use now - the law already imposes a positive duty (and restrains
liberty)
4.
No duty
Why people might rescue:
1.
2.
3.
4.

Fear of shame / being branded a coward

Desire for glory / being made into a hero
Fear of guilt
Desire for personal gratification
Drawbacks of creating Bad Samaritan law?

1.
2.
3.

Why do it if society is encouraging the rescuing behavior already?

Too much reporting.
Untrained rescuers worsen situations or get hurt themselves
Reducing Murder to Manslaughter with Cultural Defense

My opinion: criminal law is trying to influence behavior while simultaneously punishing people
based on their mental state and it's impossible to do both perfectly.
Cultural Defense: Who wins and who loses? Winners - people who because of background or
culture are in the minority when it comes to what makes them angry. Who loses? Heretics from
within the group. People tend to kill, rape and rob from their own group.
Felony Murder Debate
1. Deterrence This is probably not factually true
a. Deter negligent and accidental killings during commission of felonies. Co-felons will
dissuade each other from the use of violence.
b. Deter dangerous felonies in the first place.
c. Deter intentional killing, because cant claim they were accidents and get off the
hook.
2. Retribution old evil mind theory not based on modern concepts of mens rea deserve
to be punished for what you did, regardless of what you intended.
3. Condemnation reaffirm the sanctity of human life by severely punishing those who kill
4. Criminal Justice Efficiency easier to prosecute with felony murder doctrine
5. Clearly defined punishment for offenses
6. Harder to use perjury to claim deaths were accidents.
Rape Shield
Bar questions about victim's past sexual behavior.
3 Policy arguments in favor of barring questions about past sexual behavior:

1.

Questions about past behavior will confuse jury and lead to false inferences - (less chaste
= more likely to lie)
2.
Its unfair to force victim to publicly expose her private life
3.
These questions will lead many victims to not complain
Rape Shield Statutes v. Confrontation Clause
Generally, states have statutes limiting admission of evidence about a victim's past sexual
behavior.
Confrontation Clause potentially trumps the statutes, but the degree to which it trumps them is
not settled.
2 Part Test:

Is there really a material burden on cross-examination? Was the evidence merely

cumulative, or was this an essential new piece of information? Does it add something to
defendant's case, which otherwise would be missing?

If it DOES add something crucial, balance interests (on chart below):

For Rape Shield Laws

Against Rape Shield Laws

Risk of wrongful acquittal

(If jury draws wrong inference from
complainant's sexual history)

Risk of wrongful conviction

(If jury lacks important, relevant evidence
that complainant may be lying or mistaken)

Avoids embarrassment for complainant,

who is required to reveal her sexual
history
Embarrassment may deter genuine rape Encourages false rape complaints
complaints

Sexual Assault Not Rape

Complainant discretion probably prevents a lot of these incidents from being charged with
crimes.
DEFENSES
First Defenses: Police and Prosecutorial Discretion, mistake of law or fact negating mens rea for
element of the crime.
Necessity: In many CL jurisdictions, cant kill to save life. Killing 1 to save 2 might work, but
might not (because harm to society of feeling less safe is worth more than the extra life saved
think of kidney example). Killing 1 to save many would probably work.
Big difference between duress and necessity: - under duress, the harm avoided by D does not
have to be greater than harm caused by D.

Justification - You did a good thing. (self defense, necessity) lawful, cannot defend
against.
Excuse- you did a bad thing but we sympathize with you enough that we won't punish you.
(duress, insanity)

Acts "justified" by a defense are lawful. You cannot lawfully defend against them.
Acts "excused" are not lawful. You can lawfully defend against them.
Insanity can both negate Mens Rea, and be a separate defense Also, it shifts burden
of proof
MPC: unless otherwise specified, disproving defenses = an element of the offense (so must be
disproved by prosecution beyond a reasonable doubt) 1.13 (9) CB 979.
Defenses may shift the burden and quantum of proof 1.

Gov't must prove absence of defense beyond reasonable doubt. (Modern Rule
everywhere except OHIO)
a.
"Better for 10 guilty men to go free than 1 innocent man go to prison."
b.
(Always required for the elements of the crime - but not for disproving defenses)
4.
Def must prove, by preponderance (CL rule in OHIO for defenses)
5.
Def must prove, by clear and convincing evidence. (Insanity Rule).
ATTEMPT
Attempt Laws are primarily for incapacitation (to prevent the intended crime) and to a lesser
extent, retribution. (Attempting to do something is bad and deserves punishment.)
Attempt Laws DO NOT DETER How could you deter with a lesser punishment, if the bigger
punishment of the crime itself does not deter you?
Why have an Abandonment Defense?
1. It increases the incentive to stop before completing the crime.
2. No need for retribution, if he has renounced his bad intention.
3. No need for incapacitation / deterrence, because he has renounced his bad intention.
4. BUTmaybe the intended victim is still afraid because he may not have really renounced.
Also, in attempted rape cases, the victim might have to beg for mercy, which seems like a
significant harm the law isnt concerned with.
ACCOMPLICE
Big Mystery: Are people accomplices to S/L offenses when they are not aware of the attendant
circumstances that make it a crime? (Not knowing girls age, encouraging other to have sex with
her = accomplice to statutory rape?)
Why not find people strictly liable for attendant circumstance, for accomplice liability to S/L
offenses?
- Too easy for people to be accomplices. If you say hey, shes hot that could make you an
encourager of statutory rape, even if you dont know how old she is.
Statutory Rape ------------------------------------------------------------------------CRIMINAL LAW
CHECKLIST VOLOKH FALL 2007
Sexual Assault (Attempted Rape too?)
1. Physical Contact, through clothing
2. Sexual Part
3. Against will of the person touched (MPC: Knowledge, California: Recklessness??)

Rape (If Gross sexual imposition, look up in MPC after Rape)

1. Coercive Force or Threat of Force (Not needed in NJ)
2. Sex
3. Absence of Consent (MPC: Recklessness, most CL: Gross Negligence)
Knowledge Murder If your purpose is something other than killing, but you KNOW people
will dieMURDER!
Extreme Recklessness Murder Presumed by MPC categories! See outline.
Felony Murder NOT IN MPC!
1. Felony or ATTEMPTED Felony (proximate cause is the homicide actually connected
to the felony?)
2. Not inherently dangerous to life (or inherently dangerous in the abstract California)
3. No Merger
4. No Agency Defense (killed by a non-felon)
Conspiracy (MPC Aff. Defense: Renunciation) - (can be guilty of conspiracy and crime under
CL (Carter) but not in MPC
1. Agreement (purp.) to commit crime or aid (MPC: Purpose --- CL: Purpose or sometimes
knowledge - Lauria)
2. Overt Act (CL: Not always needed. MPC: Needed for Felony 3d degree or
Misdemeanor)
Pinkerton NOT IN MPC! (Renunciation is not a CL defense to conspiracy, but might be to
Pinkerton)
1. Conspiracy exists
2. Crime committed was reasonably foreseeable in furtherance of the conspiracy
Accomplice
1. Actually Aid (or in MPC, attempt to Aid) encouragement, agreement that crime should
be committed, etc.
2. Omitted to prevent crime if have a legal duty to prevent it
3. Purpose (or some CL: knowledge) that your accomplice will do the act or conduct
4. Same mens rea required for the crime, as to whether crime happens
Linscott - NOT IN MPC! - Natural and Probable Consequences of Accomplice (AKA
reasonably foreseeable)
1. Primary offense was committed, or attempted, and D was an accomplice to it
2. Another crime was committed, that was a reasonably foreseeable consequence (or
prerequisite) to first
Attempt (Affirmative Defenses: Impossibility, Abandonment)
1. Purpose (or MPC: Belief) that crime be committed
2. MPC: Substantial Step Strongly Corroborative of Purpose Look at list of automatics,
CB 1005 (5.01(2))
3. CL: Dangerous Proximity (Peaslee, Rizzo) or Unequivocality (Miller/Jeans - Cal,
unpopular)

Ommission 1. Legal duty to save?

2. Legal duty to prevent crime?
No Actus Reus No physical movement (pure thoughtcrime) or Not Conscious and Volitional
No Proximate Cause - Intervening act? (If Coincidence, must be foreseeable. If Response,
must be not abnormal)
Voluntary Manslaughter
1. Actual provocation (did they set themselves up to be provoked?)
2. Adequate Provocation (Reasonable?)
Mistake of Fact or Law
1. Does it negate the mental state required for an element of the crime? If so,
exculpated!
Self-Defense - justification
1. 1. CL: Reasonably Believed --- MPC: Sincerely Believed (No defense to negligence
or recklessness crimes)
2. Immediately necessary to protect against
3. Unlawful force (not justified by self-defense or necessity) Makes non-deadly force OK
4. Death / Serious Bodily Injury / Rape / Kidnapping Makes deadly force OK
5. D did not provoke ( MPC: with purpose to cause death or serious bodily injury)
6. Could not retreat / comply (Check Outline)
Defense of Others If someone has a right to use force in Self-Defense, you can use same
force to defend them
Defense of Property Not lethal unless in Texas CL (Syllabus 29) --- MPC 3.06 CB 992
Necessity justification
1. D Believes (or CL : reasonably believes) conduct is necessary (No reasonable
alternative, likely to work)
2. To avoid harm (some CL: imminent, brought on by natural forces, limited to danger of
personal injury)
3. Harm avoided is objectively greater than illegal harm (some CL: No force v. innocent,
no serious felony)
4. Only if NO LAW DEALS WITH SITUATION!
Insanity excuse (Modern Test MPC 4.01 CB 999)
1. Mental Disease or Defect
2. leads D to lack substantial capacity to appreciate criminality/wrongness of conduct
3. or leads D to lack substantial capacity to conform conduct to requirements of law
Duress excuse (If succeeds, compelling party is guilty of crime)
1. Threat (CL: Must be impending/immediate)
2. Unlawful Force to self or another (CL: death or serious bodily injury)

3. Reasonably firm person would not be able to resist (CL: reasonable fear threat will be
carried out)
4. DID NOT recklessly place self in situation where duress likely, or negligently did so if
mens rea = negligence
5. CL: Not a defense against murder. (MPC: Is a defense against murder).
Impossibility of Attempt - Only legal impossibility will suffice, but should discuss factual
impossibility anyway.
Abandonment of Attempt --- Must be complete and voluntary --- See MPC 5.01 (4) CB 1005)
1. NOT motivated by increased chance of apprehension, difficulty in accomplishing,
decision to postpone
Renunciation of Conspiracy Only available in MPC. (But in CL, might avoid Pinkerton
Liability)
1. Must THWART success of conspiracy, and completely and voluntarily renounce. (MPC,
5.03(6) CB 1007)