Common Law

Actus Reus
Voluntary Act that causes social harm
Voluntary Act
Voluntary bodily movement / muscular contraction
Involuntary: reflexive, spasms, epileptic seizures, unconscious or asleep.
Habitual acts fall on voluntary side of spectrum.
Time-framing: voluntarily drive knowing that prone to seizures. Expand
frame to capture.
Omission
Duty to act to prevent harm is status relationship (parents to child,
married couple, master.)
Contract, creation of risk, begin assistance, statutes.
Barber case: immediate family determines if treatment is proportionate;
medical personnel may decide to withdraw treatment.
Social Harm
Conduct or result crime + attendant circumstances.

Mens Rea
Broad meaning: culpability. Committed actus reus with morally
blameworthy state of mind.
Narrow meaning: mental state provided for in definition of offense.
Intentionally: 1) it is his desire to cause the social harm; or 2) acts with
knowledge that harm is certain to occur as a result of his conduct.
Knowledge: 1) aware of the fact or 2) correctly believes
that fact exists.
Willful Blindness: 1) is aware of high probability of existence of the
fact; and 2a) takes deliberate action to avoid confirming fact, or 2b)
purposely fails to investigate fact.
Transferred intent: attribute liability to defendant who intended to kill one
person and killed another instead. Does not apply in assault case where
"intent to maim such person" requires criminal intent be directed toward
actual victim. No transfer between types of social harm. Purpose is to put
bad aim wrongdoer in same position as if aim had been good.
Negligence: objective fault. Morally blameworthy failure to realize taking an
unjustified risk.
Criminal negligence must be gross deviation from standard of
reasonable care.
Reasonable person: traditional rule is that defendant's unusual physical
characteristics, if relevant to the case, are incorporated into the
reasonable person standard, but unusual mental characteristics are not.
Recklessness: disregarded substantial and unjustifiable risk of which he
was aware.
If statute is not clear which mental state applies to which elements, court
will interpret statute in manner that best gives effect to legislative intent.
Also conclude that mens rea element applies in forward but not backward
direction.
Specific intent: definition of crime expressly includes intent or purpose to
do some future act,
or to achieve some further consequence; or provides that actor must be
aware of attendant.
General intent: Does not contain one of those features.
Strict Liability
Courts frequently authorize in cases of public welfare offenses. Permit
mitigated unfairness to the individual in order more effectively to deter
socially dangerous conduct.
Mistakes of Fact
Strict liability: no mistake is a defense.
Specific intent crimes: mistake of fact is exculpatory if it negates the
particular element of mens rea in the definition of the offense (i.e. lacks
intent). Does not matter if mistake was unreasonable; only needs to be
honest.
General intent: determine if mistake negated moral culpability. Must be
honest and
reasonable mistake. Permits punishment for negligence.
Moral wrong doctrine: Reasonable mistake, but if facts were as actor
believed them to be, conduct would still be immoral.
Legal wrong doctrine: If conduct causes social harm prohibited by
greater crime, guilty even if, based on reasonable understanding of
attendant circumstances, would be guilty of lesser crime if situation
were such. Authorizes punishment for actus reus while ignoring that
mens rea was at level of lesser crime.
Mistakes of Law
Ignorance of the law is no excuse unless statute says it is or an affirmative
defense applies.
Not a defense: reliance on one's own interpretation of the law or on advice
of private counsel.
Defense: reliance on an official interpretation of the law, later determined
to be erroneous, obtained from 1) statute, 2) judicial decision from
highest state court, or 3) person or public body responsible for
interpretation, administration, or enforcement of the law.
Lambert Principle: Ignorance may be defense where statute 1) punishes
omission, 2) is based
on status, and 3) malum prohibitum (wrong because it's prohibited).
Nothing to alert person.
Outline Page 1

MPC
Voluntary Act
"Act" = bodily movement whether voluntary or involuntary
Lists involuntary movements in 2.01. Involuntary = any conduct that is not
product of effort or determination of the actor, either conscious or habitual.
Possession is an act if knowingly obtained or in control for sufficient period.
2.05 says the requirements don't apply to violations.
Omission
Not very different. 2.01(3)(b)
Omission permitted if law defining offense provides for it or otherwise imposed
by common law.

Mens Rea
Section 2.02. Defendant must commit each element of offense with culpable
state of mind as set out in specific statute. Legislature may choose different
level for each element.
Discards broad meaning of mens rea and the distinction between general and
specific intent.
Purposely: conscious object to engage in conduct of that nature or to cause
such a result. Aware of existence of attendant circumstances or believes or
hopes that they exist.
Knowingly: aware that it is practically certain that his conduct will cause such a
result. Aware that
conduct is of that nature or that such attendant circumstances exist.
(Willful blindness): knowledge established if person is aware of a high
probability of attendant circumstance's existence, unless he actually
believes that it does not exist. 2.02(7).
Recklessly: consciously disregards substantial and unjustified risk that material
element exists or
will result from his conduct.
Negligently: should be aware of a substantial and unjustifiable risk that
material element exists or will result from his conduct. Inadvertent.
Reasonable person: evaluate from perspective of a person in actor's
situation. Physical characteristics considered but hereditary and
intelligence are not. Still struggle to balance between subjectivism and
objectivism.
Statutes: a single mens rea term modifies each actus reus element of the
offense, absent a
plainly contrary purpose of the legislature. If silent regarding level,
element is established if person acts purposely, knowingly or recklessly.
2.02(3).

Strict Liability
No strict liability except for violations. 2.05.

Mistakes of Fact
2.04(1): Mistake is a defense if it negates the mental state required to
establish any element of the offense.
2.04(2): Mistake-of-fact not available if actor would be guilty of another offense,
had
circumstances been as he supposed. Punishment at level of lesser offense.

Different-law mistake: Lack of knowledge of, or misunderstanding regarding

the meaning or application of another law--typically non-penal--may negate
mens rea element in definition of the criminal offense.
Only a defense in specific intent crimes.
Example: don't understand mechanic's lien--> don't realize car belongs
to mechanic-->
don't realize you're breaking law of larceny: "intent to steal property
of another."

Mistakes of Law
2.02(9): Codifies common law reasonable-reliance doctrine: ignorance of
law is no defense unless statute says it is (2.04(1)(b)), or affirmative defense
applies (official statement; 2.04(3)).
Actual Causation
But for D's voluntary act, would the social harm have occurred when it did?
Accelerating a result: shorten life by even a short time = actual cause.
Concurrent sufficient causes: Would have died when he did anyway
because of other actor--> both acquitted. So need to modify test to "have
occurred when and as it did." Or use "substantial factor" test.
Obstructed cause: attempted to kill X, but did not contribute and someone
else more efficient.
Proximate Causation
Decision to attach causal responsibility for social harm to a certain factor
is made in common sense manner, or by application of moral intuitions,
public policy, or sense of justice.
An act that is a direct cause of social harm is also a proximate cause of it.
Proximate Causation
Decision to attach causal responsibility for social harm to a certain factor
is made in common sense manner, or by application of moral intuitions,
public policy, or sense of justice.
An act that is a direct cause of social harm is also a proximate cause of it.
Direct cause is actual cause when no other causal factor has intervened.
Intervening cause: independent but-for cause that comes into play after D's
act or omission.
Various factors assist factfinder in evaluating when intervening cause
supersedes D's conduct.
1) De minimis contribution: D's causal responsibility is insubstantial in
comparison to intervening.
2) Foreseeability of intervening cause. Dependent intervening cause does not
break chain unless highly abnormal or bizarre; independent breaks causal
chain unless foreseeable.
3) Intended consequences: can never be too remote.
4) Apparent safety: When defendant's active force has come to rest, court no
longer follows it.
5) Voluntary, knowing, informed human intervention: more likely to relieve D.
6) Omission: rarely supersede an earlier, operative wrongful act.
Homicide
Malice Murder: the killing of another human being with malice aforethought.
4 states of mind.
Intent (purpose or knowledge) to kill: probable consequences invite jury to
infer intent.
Intent (purpose or knowledge) to inflict GBH: person who unjustifiably and
inexcusably intends to cause injuries of this level of severity is guilty of
murder if victim dies as result.
Depraved heart: extreme recklessness/indifference to value of human life.
Risk-taking serious
enough to display willful and wanton disregard for human life. As
good as intended.
Felony murder: death resulting from commission of felony constitutes
murder. Strict liability for death. Intent to commit the felony constitutes
the implied malice. Limits:
Inherently dangerous: consider elements in abstract or facts of the
case.
Merger: felony-murder only if underlying felony is independent of
homicide. Assaultive- type felonies merge because felonious purpose is
to attack V--no way to do more safely.
Res gestae: homicide must occur within time, distance and causal
relationship of felony.
Killing by non-felon:
Agency: rule does not apply if adversary to crime commits
homicide. Rule applies if actor is agent of non-actor (accomplices).
Proximate cause: liable for any death that is proximate result of
felony.
Provocative act: Liable for reckless murder if provocative
behavior causes retaliation and innocent V killed. Basis is
not felony murder.
Manslaughter : unlawful killing of another human being without malice
aforethought. 2 types:
Voluntary / Heat of passion: 4 elements: state of passion, adequate
provocation, no cooling off period, causal link between provocation, passion
and homicide.
Passion: any violent, intense, high-wrought, or enthusiastic emotion.
Provocation: early CL had 5 categories: aggravated assault, mutual
combat, serious crime committed against close relative, illegal arrest,
and observing spousal adultery.
Modern law: if unlawful provocation would render any ordinarily
prudent person for the time being incapable of that cool reflection
that otherwise makes it murder
Words alone do not constitute adequate
provocation.
Reasonable person: objective ordinary person vs.
subjectivized by considering characteristics that may
measure gravity of provocation and
level of self-control to be expected. More willing to use gravity
characteristic
Cooling off time: If reasonable person would have cooled off.
Causal connection: no excuse if intended to kill regardless of
intervening provocation.
Outline Page 2

2.04(1): different-law mistakes. Ignorance or mistake as to matter of different

law is a defense if
it negates the mens rea required to establish material element of the
offense. Handled in same way as mistake of fact under the Code.
Actual Causation
2.03(1)(a): but-for test.
Multiple sufficient causes: determine whether "result in question" would
occur when it did. So each party is but-for cause and no need for substantial
factor test.

Proximate Causation
Treats matters of proximate causation as issues instead relating to actor's
culpability.
2.03(2) and (3) deal with situations in which the actual result of the
defendant's conduct diverges from that which was designed, contemplated, or
risked. Issue is whether it may still be said that
Proximate Causation
Treats matters of proximate causation as issues instead relating to actor's
culpability.
2.03(2) and (3) deal with situations in which the actual result of the
defendant's conduct diverges from that which was designed, contemplated, or
risked. Issue is whether it may still be said that he caused the prohibited result
with required level of culpability.
D has not acted with requisite culpability unless actual result, including way in
which it occurred,
was not too remote or accidental in its occurrence to have a just bearing
on actor's liability.
If no culpability requirement, causation not established unless actual
result is probable consequence of actor's conduct.

Involuntary / Negligence: a person does an act, lawful in itself, but in an

unlawful manner and without due caution and circumspection. Gross
deviation from reasonable standard of care. Should be aware of risk, but is
not.
Pennsylvania Model
First degree includes 3 types:
Intent (purpose to kill) + specified manner of killing (poison or lying in
wait)
Intent (purpose to kill) + willful, deliberate, premeditated.
Willful: specific intent to
kill.
Deliberate: quality of thought process. Cool purpose. To measure
and evaluate.
Premeditated: Quantity of thought process. Thought about
beforehand. Length?
Felony murder with enumerated felony.
Second degree includes 3 (maybe 4?) types: (malice and forethought)
Intent to inflict grievous bodily harm.
Depraved heart.
Felony murder with unenumerated felony.
Regular intent to kill? Not with deliberation and premeditation?
Manslaughter:
Voluntary / Heat of Passion
Involuntary / Negligence
Self-Defense
Must be triggering condition, necessity (imminence), and proportionality of
force.
Can successfully claim self-defense if reasonably (objective) and honestly
(subjective) believe that elements exist.
Aggressor rule
An initial aggressor cannot claim self-defense unless he or she
renounces his or her initial aggression.
An initial aggressor is one whose "affirmative unlawful act is
reasonably calculated to produce an affray foreboding injurious or fatal
consequences."
An initial aggressor renounces his or her initial aggression if "he or she
communicates to his or her adversary his or her intent to withdraw and in
good faith attempts to do so."
Retreat rule
Majority rule: an actor is not required to retreat.
Minority rule: An actor is required to retreat if he or she knows he or
she can do so in complete safety, unless he or she is in his or her
castle, in which case he or she is not required to retreat.
An aggressor is always required to retreat.
Imperfect self-defense
D uses deadly force against non-deadly force
D is initial aggressor using non-deadly force, victim responds with deadly
force, and D
matches with deadly
force
D honestly but unreasonably believes elements exist. (Only some states)

Homicide
Murder
210.2(1)(a): kills another purposely or knowingly
210.2(1)(b): kills another recklessly, under circumstances manifesting
extreme indifference to the value of human life. (GBH and depraved heart).
Felony murder: extreme recklessness is non-conclusively presumed if the
homicide occurs while
the actor is engaged in, or is an accomplice in, the commission or
attempted commission of, or flight from, one of the dangerous felonies
specified in 210.2(1)(b).

Manslaughter
210.3(1)(a): recklessly kills another: does not need to manifest extreme
indifference as in reckless murder. There is no negligent manslaughter.
210.3(1)(b): kills another under influence of extreme mental or emotional
disturbance for which there is reasonable explanation or excuse (analogous
to heat of passion).
Subjective portion: extreme mental or emotional disturbance need not
be so far from norm that it is mental illness, but rather it is sufficient
that the defendant experienced intense feeling sufficient to cause loss of
self-control.
Objective portion: Reasonableness of explanation determined from
viewpoint of a person in the actor's situation under the circumstances
as he believes them to be. So partially subjective because actor's
situation incorporates personal handicaps and other relevant external
characteristics. Obviously, moral values excluded.
Reasonable loss of self-control also objective. Whether it can be
understood in terms that arouse sympathy in ordinary citizen.
Specific provocative act not required. If there is an act, not
required to be from the decedent.
Words alone can warrant manslaughter instruction.
No rigid cooling off rule.
210.4: negligent homicide: same as common law involuntary manslaughter.
Imperfect self-defense
D uses deadly force against non-deadly force
D is initial aggressor using non-deadly force, victim responds with
deadly force, and D
matches with deadly
force
D honestly but unreasonably believes elements exist. (Only some
states)
Reasonable person? Prior mugging victim? Experienced subway
rider? Racist? Female? Diminutive? Knowledge of V's background?
Battered women?
Necessity
6 conditions:
D must reasonably believe the harm avoided is imminent.
D must reasonably believe no adequate legal alternative exists.
Harm caused < harm avoided.
Harm caused is the harm the law defining the offense sought to
prevent.
Harm avoided is the harm D reasonably foresaw avoiding at the time of
choice.
D must believe he has chosen the lesser evil and must in fact
have done so. Value judgment must be "correct" based on
reasonably foreseeable harm.
Direct causal relationship between D's action and the harm avoided.
Not pre-empted by legislative judgment.
Clean hands, i.e., D was not negligent in bringing about the situation
requiring a choice of harms.
3 limits:
Limited to situations created by natural forces.
Not applicable to murder.
Limited to the protection of persons and property.
Duress
D must reasonably believe that the threat is one of death or serious
bodily injury to D or a close relative.
D must reasonably believe the threat is real or genuine.
D must reasonably believe that the threatened harm is imminent (upon
D's failure to comply with the demand).
D must reasonably believe that he or she has no reasonable opportunity to
escape except
through compliance with the
demand.
Clean hands, i.e. D was not negligent in creating the conditions giving
rise to the claim of duress.
Limited to threats from another person.
Does not apply to murder.
Intoxication
Not limited to alcohol.
Outline Page 3

Self-Defense
Deadly force means "force which the actor uses with the purpose of causing
or which he knows to create a substantial risk of causing death or serious
bodily injury." 3.11(2)
Triggering condition: The use or threatened use of "unlawful force" (see
3.11(1))
Necessity: The use of force must be "immediately necessary"
Dispenses with imminence requirement.
Proportionality: Deadly force can only be used to protect against "death,
serious bodily harm, kidnapping or sexual intercourse compelled by force or
threat."
Aggressor rule almost the same as common law. "with the purpose of
causing death or serious bodily injury, provoked the use of force against
himself [or herself] in the same encounter."
Narrower because if nondeadly aggressor, does not lose self-defense
privilege if V escalates
Renunciation rule: Whatever suffices to end the "encounter"
Retreat rule: An actor cannot use deadly force if he or she "knows that he [or
she] can avoid the necessity of using such force with complete safety by
retreating."
Exception for home, or even place of work.
Permission to use force is based on belief, subject to 3.09(2). "The use of
deadly force is not justifiable under this Section unless the actor believes
that such force is necessary to protect himself against"
Example: if D purposely kills V because he negligently believes V is about
to kill him, self- defense is available to D if charged with purposely,
knowingly or recklessly killing V, but not if charged with negligent
homicide. If D is reckless with regard to V being aggressor,
Involuntary intoxication if: coerced, mistaken, unexpected side effect,
enhanced effect due to pre-disposing condition. Entitled to acquittal in all
circumstances in which voluntary intoxication is defense. Plus should be
acquitted of general-intent offenses. Also excused if temporarily insane.
Voluntary intoxication: knowingly ingests a substance he knows or should
know can cause him
to become
intoxicated.
General intent: voluntary intoxication is not a defense.
Specific intent: voluntary intoxication is a defense if, as a result of his
intoxication at the time of the crime, he was incapable of forming or did
not in fact form the specific intent required in the definition of the
offense.
Unconsciousness not a defense if condition brought on by voluntary
consumption. Can only use it to show you weren't the one who
committed the act.
Temporary insanity not a defense.

justifiable under this Section unless the actor believes that such force is
necessary to protect
himself against"
Example: if D purposely kills V because he negligently believes V is
about to kill him, self- defense is available to D if charged with
purposely, knowingly or recklessly killing V, but not if charged with
negligent homicide. If D is reckless with regard to V being aggressor,
recklessness as to relevant facts would render him guilty of offense
based on recklessness.
Necessity
3.02: Did D believe committing the crime was necessary to avoid a harm?
Was the harm sought to be avoided in fact greater than the harm sought to
be prevented by the law defining the offense?
What was the harm sought to be
avoided?
What is the harm sought to be prevented by the law defining the
offense?
Does some other provision deal with the specific situation involved?
Does it appear that the legislature intended to otherwise preclude the
defense?
Defense is unavailable if prosecuted for crime of recklessness or
negligence and acted recklessly or negligently in bringing about emergency
or in evaluating necessity of conduct.
Example: D recklessly starts a fire that threatened to burn down
homes; D justified in purposely burning V's property to stop it,
although he could be prosecuted for original act.
Not limited to emergencies created by natural forces, is not limited to
physical harm to persons or property, and, most controversially, may be
employed in homicide prosecutions.

Insanity
Insanity is legal term; mental illness is broader and definition is open
to accommodate developing mental understanding.
M'Naughten test: insane if, at time of act, laboring under such a defect of
reason arising from
disease of mind that 1) he did not know nature and quality of the act; or 2) if
he did know it, he did not know what he was doing was wrong.
"Know" may be narrow or broad; "nature and quality" is potentially
narrow; "wrong may refer to legal or moral wrongdoing (if moral,
question is whether D knowingly violated societal standards); if moral,
may also apply deific decree (if believe acting on God's
command, legally insane).
Irresistible Impulse test: insane if, as a result of a diseased condition of
the mind, he is, by an insane impulse, irresistibly driven to commit the
crime.
Focuses on volition. Actor lacked the capacity to control the desire.
Product (Durham) test: person should be excused if his unlawful act
was the product of a mental disease or defect.
Decide whether mental disease or defect exists and whether it was
but-for cause of criminal conduct. Only in New Hampshire.
Leaves power with expert witnesses to prove insanity by defining
mental disease.
Not guilty by reason of insanity (NGRI): automatically committed to mental
facility.
Guilty but mentally ill (GBMI): receives same sentence as guilty, but may
receive psychiatric care in prison.
Attempts
Attempt occurs when person, with intent to commit an offense, performs
some act done towards carrying out the intent. May not be convicted of
both attempt and target offense.
Objectivism: Actor's conduct must manifest criminality. Punished for
causing fear in mind of
reasonable person.
Complete but imperfect attempt: actor performs all of the acts he set out
to do, but fails to attain his criminal goal.
Incomplete attempt: actor does some of the acts necessary to achieve
criminal goal, but quits
or is prevented from continuing.
Two intents: actor must 1) intentionally commit the acts that constitute
the actus reus of the attempt itself; and 2) must intend to commit the
target offense. Attempt is specific intent offense even if target offense is
general intent crime.
Prosecutor sometimes required to prove intent to commit target
offense that requires

or is prevented from continuing.

Two intents: actor must 1) intentionally commit the acts that constitute
the actus reus of the attempt itself; and 2) must intend to commit the
target offense. Attempt is specific intent offense even if target offense is
general intent crime.
Prosecutor sometimes required to prove intent to commit target
offense that requires lower mental state.
All but two states hold that attempted felony-murder is not a thing.
Can be convicted of attempted voluntary manslaughter, but not
attempted involuntary manslaughter.
Attempted strict liability crimes: if interrupted before act, should it be
sufficient that actor is just as culpable regarding attendant circumstance
as required for target offense?
Outline Page 4

Duress
2.09: D must be compelled to commit offense by use, or threatened use, of
unlawful force by the coercer upon her or another person.
A person of reasonable firmness in her situation would have been unable to
resist the coercion.
Not available if actor recklessly placed himself in a situation in which it
was probable that he would be subjected to coercion.
If negligently placed self in situation, defense is available for all offenses except
those for which
negligence establishes culpability.
Available for non-deadly and non-imminent threats.
Imperiled person does not need to be D or family member.

Intoxication
2.08: any form of intoxication is a defense to criminal conduct if it negates
an element of the offense.
Not guilty if lacked state of mind required in respect to an element of the crime.
Exception: If unaware of a risk of which he would have been aware if he
had been sober, unawareness is not a defense in prosecution for
recklessness crime. Negligent actor may be convicted of crime of
recklessness.
So negates purpose and knowledge but not recklessness and negligence. If
have different mental
states in statute, may negate one and not the other.
May raise unconsciousness as defense in voluntary act claim, although
voluntary act may be found prior.
Even if failure of proof defense fails (elements satisfied), may still raise
affirmative defense if
suffered from pathological intoxication and condition qualifies under test of
insanity.
Insanity
MPC test: 4.01(1): insane if, as result of mental disease or defect, he lacked
substantial capacity to: 1) appreciate the criminality (or moral wrongfulness)
of his conduct; or 2) to conform her conduct to the requirements of the law.
"Appreciate" rather than "know," avoids "impulse," and modifies both
prongs with "lacks substantial capacity."
4.01(2): Mental diseases do not include abnormality manifested only by
repeated criminal or antisocial behavior. Excludes psychopaths.
Federal statutory test: insane if, as result of a severe mental disease or
defect, unable to appreciate 1) nature and quality of conduct; or 2) the
wrongfulness of her conduct.

Attempts
5.01: attempt consists of 1) purpose to commit target offense; and 2)
conduct constituting a substantial step toward commission of the target
offense.
Subjectivism: Focus on actor's intent to commit crime, which conduct
corroborates. Punished for
wrong of forming intent to commit a crime.
5.01(1)(a) and (1)(b) pertain to completed attempts. (1)(a) for conduct; (1)(b)
for results.
5.01(1)(c) for incomplete attempts, in conjunction with 5.01(2).
Two exceptions to purpose requirement:
1(b) and 1(c) implicitly provide that person need only believe that result
crime will occur.
"acting with the kind of culpability otherwise required for the
commission of the crime" means that purpose or belief do not
necessarily encompass attendant circumstances. If could be convicted
of reckless statutory rape if successfully completed recklessly, can be
convicted of attempted statutory rape if reckless as to age. If strict
liability, then can be convicted without mental state.

Factors on where to draw line between preparation and perpetration: 1)

whether act appears
to be dangerously close to causing tangible harm; 2) seriousness of the
threatened harm; 3)
strength of evidence of mens rea.
Substantial step test: same as MPC. Must have purpose to commit target
offense; and must have conduct constituting substantial step toward
commission of target offense.
Last act test: Attempt only occurs when person commits all acts he believes
are necessary to
commit target offense. Must pull trigger. Would be virtually impossible to
prevent crime.
Physical proximity test: Actor must have it within his power to commit
the crime almost immediately.

 Dangerous proximity test: danger of success is very great. 3 factors:

nearness of danger;
greatness of harm; degree of apprehension felt. 4 armed men driving around
not attempt.
Indispensable Element test: Actor who does not yet possess a necessary
instrumentality for the crime has not yet crossed the line. Arbitrary.
Probable Desistance Test: Will likely find an attempt when, if not
interrupted, the actor has
reached a point where it is unlikely that he will voluntarily desist in his
effort to commit the crime. Prescription refills.
Unequivocality test: attempt occurs when a person's conduct
unambiguously manifests her
criminal attempt.
Defenses: (Pure) legal impossibility is a defense; factual impossibility is not.
Factual impossibility: person's intended end constitutes a crime, but fails to
consummate offense because of attendant circumstance unknown to him or
beyond his control. Pickpocket. If circumstances were as actor believed or
hoped, crime would have been committed.
Inherent factual impossibility: May be a defense. Method to accomplish
crime is one that a reasonable person would view as completely
inappropriate to the objectives sought. Voodoo.
Pure legal impossibility: When law does not proscribe the goal that the
defendant sought to
achieve. 1) Person performs lawful act believing it's a crime but there's no
crime to charge them with. 2) Actor's conduct is prohibited, but cannot
legally constitute the offense charged. Add number "1" to check, may
constitute some offense, but not offense charged, forgery, because
tampered with legally immaterial part of the check. So no attempted
forgery. Male believes he raped woman by touching her breasts, cannot be
convicted of attempted rape, although can be convicted of battery. Attempt
to violate law not encompassed by conduct.
Hybrid legal impossibility: Not a defense (most states). Actor's goal is
illegal, but commission of offense is impossible due to a factual mistake
regarding the legal status of some attendant circumstance that constitutes
an element of the charged offense. Receive unstolen property believing it
was stolen; pickpocket stone statue; hunt deer out of season by shooting
stuffed animal. Can characterize as factual or hybrid legal. Semantics alone
determine.
Abandonment defense: Many courts decline to recognize. If
recognized, applies only if defendant voluntarily and completely
renounces criminal purpose. Not voluntary if unexpected resistance.
Not complete if only postponed. Subjectivist grounds.
Accomplice
Liability
Secondary party is accomplice to primary party if he intentionally assists
P to engage in conduct that constitutes the crime. Intends to assist and in
fact assists. Primary party's acts become his acts by derivative liability.
Principal in first degree: physically commits acts or commits offense using
innocent
instrumentality. Perpetrator.
Principal in second degree: intentionally assisted in commission of
crime in presence of principal in first degree. Lookout or getaway.
Accessory before the fact: Not present when crime is committed. Solicits,
counsels or
commands principal in first degree.
Accessory after the fact: with knowledge of another's guilt, intentionally
assists the felon to avoid arrest, trial or conviction. Not getaway driver;
helps once property reaches point of temporary safety. Treated as
separate and less serious than offense committed.
Actus Reus:
Three forms of assistance:
Physical conduct: furnish with instrumentality, drive getaway car, etc.
Psychological influence: S incites, solicits or encourages P to
commit the crime.
Encouragement is most controversial. Presence alone insufficient, but
coupled with very
little else can justify finding based on encouragement. Ex: prior
agreement to assist.
Omission: only if have legal duty. Mother who fails to make effort to
prevent crime.
S is not accomplice if he performs an act to assist P but his conduct is
wholly ineffectual. But once determined that S assisted P, degree of aid or
influence is immaterial. Still guilty if, but for assistance, P would have
succeeded anyway. S must help but need not cause the crime.
Can result in disproportionate punishment and can ensnare person
whose connection to a crime is exceedingly remote.
Mens Rea:
Dual intents: 1) the intent to assist the primary party to engage in the
conduct that forms the basis of the offense; and 2) the mental state
required for commission of the offense, as provided in the definition of the
substantive crime. Negligent to encourage P to drive negligently-->guilty of
negligent homicide.
Attendant circumstance: appropriate rule is probably that, as long as
secondary party acts with
the purpose of assisting the principal in the conduct that constitutes the
offense--and has the level of culpability required as to the prohibited result,
if any, of the offense--he should be deemed an accomplice if his culpability
as to the attendant circumstance would be sufficient to convict him as a
principal. If rape statute requires recklessness as to age, S should be
responsible if acted recklessly with respect to age.
Natural and probable consequences: in most jurisdictions, a person
encouraging or facilitating the commission of a crime may be held
criminally liable for any other offense that was natural and probable
consequence of the crime aided and abetted. Crime B must be within
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normal range of outcomes that may be expected to occur if nothing unusual

has intervened.

 "acting with the kind of culpability otherwise required for the

commission of the crime" means that purpose or belief do not
necessarily encompass attendant circumstances. If could be
convicted of reckless statutory rape if successfully completed
recklessly, can be convicted of attempted statutory rape if reckless
as to age. If strict liability, then can be convicted without mental
state.
1(c): substantial step. Focuses on what's already been done. 5.01(2): not
substantial step unless strongly corroborates defendant's criminal purpose.
5.01(3): may be convicted of criminal attempt, even though crime was
neither committed nor
attempted by another, if: 1) the purpose of his conduct is to aid another
in commission of the offense; and 2) such assistance would have made
him an accomplice if offense committed or attempted.
Hybrid legal impossibility cases treated as factual impossibility cases and are
no defense. Pure
legal impossibility is still a defense.
Abandonment: not guilty is 1) abandons his effort to commit the crime or
prevents it from being committed; and 2) his conduct manifests a complete
and voluntary renunciation of his criminal purpose.
Attempts subject to same punishment as target offense, except felonies of
first degree.

responsible if acted recklessly with respect to age.

Natural and probable consequences: in most jurisdictions, a person
encouraging or facilitating the commission of a crime may be held criminally
liable for any other offense that was natural and probable consequence of the
crime aided and abetted. Crime B must be within normal range of outcomes
that may be expected to occur if nothing unusual has intervened.
Criticism: accomplice may be convicted of crime of intent (e.g.
kidnapping) although his culpability regarding its commission may be no
greater than that of negligence.
Abandonment: S can avoid accountability if he communicates his
withdrawal to the principal and make bona fide efforts to neutralize the
effect of his prior assistance.
Theories of punishment
Utilitarianism
Utilitarianism is forward-looking and tries to deter future bad conduct while
increasing happiness and reducing pain. Utilitarians believe that both crime and
punishment are evils to be avoided. A utilitarian doesnt like punishment. Human
beings must be characterized by seeking pleasure and avoiding pain. We must
be able to do the calculations; we must be rational.
Forms of utilitarianism: (1) General deterrence when you punish one person for
a crime in order to send a message to society. (2) Specific deterrence when you
deter person X by punishing person X: (a) By incapacitation you keep the person
off the streets or (b) by intimidation you make the person scared to do it again
because they remember how unpleasant the experience was being punished the
first time. (3) Rehabilitation when you use the penal system to change the
person such that they wont want to do bad acts in the future; you diagnose the
problem and then solve it.
Retributivism
The punishment of a wrongdoer is justified because it is a deserved response to
the
wrongdoing. You cant be angry at someone unless you believe they have the
capacity to
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Accomplice
Liability
2.06: a person can be convicted of an offense if he personally commits the
crime, or if his relationship to the person who commits the crime is one for
which he is legally accountable.
Three forms of accountability recognized:
Innocent instrumentality: D legally accountable for conduct of innocent
or irresponsible person X if D 1) has mental state sufficient for
commission of the offense; and 2) causes X to engage in the criminal
conduct.
Miscellaneous accountability: if law defining an offense so provides.
Accomplice accountability: if accomplice of other in the commission of the
criminal offense.
2.06(3)(a): S is an accomplice of P in the commission of an offense if, with the
requisite mens rea, he: (1) solicits P to commit the offense; (2) aids, agrees to
aid, or attempts to aid P in the planning or commission of the offense; or (3)
has a legal duty to prevent the commission of the offense,
but makes no effort to do so.
Actus Reus:
Six forms of assistance:
Solicitation (request or command)
Solicitation (encouragement)
Aiding
Agreeing to aid: even if S does not fulfill promise. Code does not
require proof of encouragement.
Attempting to aid: even if aid proves ineffectual. Opens window but P uses
door.
Relate to 5.01(3): if P stopped before taking substantial step, S
may be guilty of attempted robbery through his own conduct
and P is not.
Omission: if duty to prevent commission of the offense, with mental state.
Mens Rea:
Assist with purpose of promoting or facilitating the commission of the offense.
2.06(4): when causing a particular result is an element of a crime, person is
accomplice if: (1) he was an accomplice in the conduct that caused the result;
and (2) he acted with the culpability, if any, regarding the result that is
sufficient for commission of the offense.
3 step process: Determine P's potential responsibility. Ask whether S was
accomplice in conduct that caused result. Ask whether S acted with
culpability in regard to the result that is sufficient for commission of the
offense.
Effect of 2.06(4) s to make accomplice in conduct that causes result guilty
of felony murder if common law felony murder applies because possessed
level of culpability necessary in regard to result, i.e., no culpability.
Ambiguous as to attendant circumstances. Court may determine that
purpose requirement extends to attendant circumstances or that the
culpability of the substantive offense controls.
Rejects natural-and-probable consequences doctrine.
2.06(6): Not an accomplice if victim of offense or purchaser of narcotics.
Abandonment: terminates participation if: (1) neutralizes his assistance; (2)
gives timely warning
choose to either do right or wrong. Retributivists focus on people having free
choice or free will.
The retributivist says that it is societys duty to punish and that this duty is
independent of the
consequences or costs or benefits.

 Ambiguous as to attendant circumstances. Court may determine that

purpose requirement extends to attendant circumstances or that the
culpability of the substantive offense controls.
Rejects natural-and-probable consequences doctrine.
2.06(6): Not an accomplice if victim of offense or purchaser of narcotics.
Abandonment: terminates participation if: (1) neutralizes his assistance; (2)
gives timely warning to the police of the impeding offense; or (3) in some
other manner attempts to prevent the commission of the crime.

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