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Chapter 4

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Actus Reus Crime contains two components: actus reus and mens rea
Actus reus- no universal definition, some say its conduct (e.g.
picking up a gun and firing), some say its the result (e.g. one
An act is essential to criminal law.
How far in advance of an act can a statute criminalize conduct. Do
we have to wait until an act occurs? Not necessarily, legislatures
pass statutes that criminalize attempted crimes. So if a man picks
up a rock to break a window, a police officer can grab his arm,
arrest him, and a court can convict him of attempted burglary.
Cannot punish a mans thoughts.
There is an actus reus for conspiracy. (e.g. voicing the criminal

Possession is an act in so far as it satisfies actus reus.
Look at the Actus Reus issue separate from other issues.
Voluntary Act- Model Penal Code (MPC) 2.01
o Martin v. State
Man arrested, intoxicated, in his house. While taking
him to the jail, the police officer drove on the highway.
The man was yelling obscenities, and then convicted the
man for being drunk in a public place.
One of the requirements for the crime is a voluntary
appearance. Here, the man did not voluntarily go into
the public place, but he was taken there involuntarily.
Thus, there was no actus reus.
Part of Due Process is that a D must satisfy every
element of the statute and the prosecution has the
burden to prove beyond a reasonable doubt that D
committed the crime and met all the requirements.
o State v. Utter Father, in a drunken stupor, stabbed his son. Does not
remember the incident.
Argues that the so called actus reus was not voluntary,
ergo he is not culpable.

Distinguishing Acts from Omissionso Barber v. Superior Court

Chapter 5

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Mens Rea Nature of Mens Rea

Note 1: A person is guilty of ____ if she intentionally does X. If
she does something recklessly, she is not guilty, b/c she does not
have the specific state of mind required.
o Actus Reus- doing the offense (conduct)
o Mens Rea- intentionally doing the offense (choice)
US v. Cordoba-Hincapie
Regina v. Cunningham
Man stole a gas mane and released gas into the
house. Endangered a womans life.
D intended to steal the mane for money, and did

so, releasing gas in the house.

Elements of the Crime Conduct
o Actus- administer or cause to be
administered a poison or a destructive
or noxious thing
o Mens- unlawfully and maliciously
o Trial Court Judge told jury to consider
maliciously to mean wicked
o App. Ct. held that maliciously required
either intent or recklessness
People v. Conley
D uses wine bottle, misses intended target and
hits victim. Victim suffers injuries and permanent
numbness of his mouth.
Rule/Statute: A person who, in committing a
battery, intentionally or knowingly causes great
bodily harm, or permanent disability or
disfigurement commits aggravated battery.

Conduct- committing a battery

Circumstance- none
Result- great bodily harm, permanent
disability or disfigurement (this is a result
that has to occur, according to the statute)
What does the statute require in regards to the
permanent disability? (mens rea requirement)
Intentionally; OR
How might the jury know beyond a reasonable
doubt that meets the required mens rea

element? They can look at the circumstances (e.g.

the nature of the instrumentality used, things
said, etc.). It is not an easy task, but it is a
necessary one.
Model Penal Code 2.02
o Definitions of Mens Rea (purposefully, recklessly, etc.)
Purposely- consciously engages in conduct or produces
a result
Knowingly- is aware of the nature of ones conduct and
the result of ones conduct
Recklessly- one is aware that a subst. and unjustf. risk
exists or that a result will come from ones conduct and
disregards it, ones disregard must be a gross deviation
from the standard of conduct of a law-abiding person
Negligently- need not be aware, merely should be
aware of the risk (subst. and unjustf.) or result of
conduct; actors failure to perceive it involves a gross
deviation from the standard of care of a reasonable
o MPC recklessness is one in which the finder in fact must find
beyond reasonable doubt that the actor was aware of the risk
in fact and disregarded that risk. Risk must be substantial and
unjustifiable. Jury is involved in determining the nature of the
conduct/risk. Jury must inquire and determine whether actor
was aware in fact.

o MPC negligence is gross negligence. Need not be aware

(distinguished from reckless).
P. 161
o Note 1
Vanessa? Purposely
Reckless? No under MPC, b/c she genuinely
believed there was no risk
3. Knowledge of Attendant Circumstances (The Willful Blindness
o State v. Nations
Underage girl dancing at club, was charged with
endangering the welfare of a child.
Statute required that act knowingly.
argues that statutory definition of knowingly
was actual knowledge
argues that definition is that of a high
probability. So called willful blindness.
Ct. reasoned that the legislative intent in enacting
knowingly was for actual knowledge, not knowing
of a high probability. Thus, did not satisfy
burden of showing actual knowledge.
4. Problems In Statutory Interpretation
o United States v. Morris
Student put worm or virus on the internet.
argues that doesnt have to have intentional mens
rea for the loss
argues he does have to have intentional mens rea
Ct. looked to legislative history. Congress did not intend
the required intentional mens rea for access to apply to

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Elements must be present beyond a reasonable doubt.

Actus Reus Elements Conduct- if she does X
Circumstances- if done at night
Result- death

Mens rea elements are mental states are related to the actus reus
elements, ergo, what mental state is required to do the actus reus elements.
By having mens rea elements, we are asking the finder of fact to
put himself in the place of the doer, and determine the doers
mentally state at the time of the act and determine beyond
reasonable doubt whether the elements were there.

o Breaking and entering of a dwelling house of another at night

with the intent to commit a felony therein.

Actus Reus Conduct: Breaking/Entering
Circumstances: Dwelling House/of Another/at
Result: none
Mens Rea Conduct: Purposely
Circumstance: Knowingly
Result: Intent to Commit Felony
o Willful taking of goods offered for sale by a store with the
intent to convert the goods without paying the purchase

Actus Reus Conduct: Taking

Circumstances: of Goods/Offered for Sale/by a
Result: none
Mens Rea Conduct: Willful
Circumstances: Knowingly for all
Result: Intent to convert w/o paying purchase
Reckless Driving

Actus Reus Conduct: driving

Circumstances: any vehicle

Mens Rea Conduct: Intentional/Wanton disregard for the

safety of persons or property, etc. (reckless)
Failure to Provide for a Child

Actus Reus Conduct: fail to support

Circumstances: child/under 18/legally chargeable,
etc./without good cause
Mens Rea Conduct: Willful
Circumstances: Knowingly

Chapter 5

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C. Strict Liability Offenses

US v. Cordoba-Hincapie
o Public Welfare Offenses
No mens rea necessary
Staples v. US
o Police raid mans house and find an automatic rifle
o argues that he did not know it was capable of automatic
o argues that the statute was strict liability
o Ct. found that Congress did not intend statute to be strict
Harsh punishment is confirmation to court that
Congress did not intend strict liability
Garnett v. State
o Statutory Rape case w/ mentally handicapped male
o MDs stat. rape statute does not address the requisite mens
rea to commit stat. rape when the victim is under 14, and the
assailant is more than 4 years older than the victim.
o argued that he was led to believe, and did believe, that the
female was older than 14, and that b/c of his handicap, was
unable to comprehend that she was younger than 14
o The court held that the legislature intended for stat. rape to
be strict liability criminal offense.
o 213.1 Rape
Rape- a male who has sexual intercourse with a female
not his wife is guilty of rape if:
D) the female is less than 10 years old (213.6
makes this strict liability, b/c it spells out that
there is no mistake of age defense when the
female is less than 10)
D. Mistake and Mens Rea

1. Mistake of Fact
o People v. Navarro
Grand Theft
Specific Intent in this case is intent to
permanently deprive the owner.
Trial court instructed the jury that s
ignorance/mistake must have been reasonable.
This was incorrect.
MPC 2.04 (1)- ignorance or mistake as to a
matter of fact or law is a defense if:
A) the ignorance or mistake negatives the
purpose, knowledge, belief, recklessness or
negligence required to establish a material
element of the offense; or
B) the law provides that the state of mind
established by such ignorance or mistake
constitutes a defense
2. Mistake (or Ignorance) or Law
o You can have a mens rea element in regards to illegality, not
traditionally done, but possible.
o People v. Marrero
was visiting NY from CT, where he is a prison guard.
NY statute made it illegal to carry a handgun w/o a
license, but had an exemption for peace officers.
argued that he was exempted, and that he relied on
his misreading of the statute.

Criminal Law

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Modern Role of Criminal Statutes Principle of Legality

o Previously Defined Conduct
Crimes have elements/prerequisites
Commonwealth v. Mochan
There are no common law crimes
The legislature defines crimes
Keeler v. Superior Court
Man knees pregnant woman in stomach, and kills
the fetus
Issue: Whether the statutory definition of human

being includes a fetus?

The fetus was determined to be viable.
The court looked to what the legislature intended
the term to mean. Penal Code of 1872
Looked to the 1850 passage, b/c the 1872
definition was copied verbatim from the 1850
code. Which intended human being to mean one
who was born alive.
Jurisdictional Issue: There is no California
common law crimes as set forth by statute, ergo,
the court has not authority to create law, which it
would be doing by broadening the definition.
Constitutional Issue: Court cannot broaden
definition and apply it retroactively (ex post facto
laws). B/c a person has to have fair notice that
what he/she is doing is criminal.
Constitution doesnt allow a legislature create
laws to make acts criminal and apply them
retroactively, ergo, the court cannot do as well.
Court considered an expansion of the definition as
creating a new crime. Something it has no
jurisdiction to do.

When is it appropriate for a court to interpret a

statutory definition and apply it to the present
defendant? When its expanded definition was
foreseeable to the defendant that his/her behavior
would fall within the definition.
Even jurisdictions that allow common law crimes, those
are usually minor offenses or very specific offenses.
Values of Statutory Clarity
o In Re Banks
Challenge on the constitutionality of NC Peeping Tom
statute b/c it was unconstitutionally vague.
Challenging secretly and peeping
Issue: Was there sufficient clarity in the statute?
General Standard to Measure Vagueness: men of

common intelligence must necessarily guess at its

meaning and differ as to its application
In determining legislative intent, the court uses indicia
(i.e. purposes appearing from the statute taken as a
whole, the phraseology, the words ordinary or technical,
the law as it prevailed before the statute, the mischief
to be remedied, the remedy, the end to be
accomplished, statutes in pari material, the preamble,
the title, legislative history of an act and the
circumstances surrounding its adoption, earlier statutes
on the same subject, the common law as it was
understood at the time of the enactment of the statute,
and previous interpretations of the same or similar
statutes, etc.)
Secretly adds an intent element to the statute. So the
act of looking alone is not criminal, but the act of
looking with the intent to invade ones privacy.

Chapter 7

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Definition of Homicide:
Killing of a human being by a human being
Criminal and non-criminal (justifiable & excusable)
Criminal Homicide
(1) Murder: unlawful killing of another human being with malice
aforethought with death taking place within a year and a day
(latter phrase was at common law)
Malice aforethought:
o Now includes a variety of mental states
o What will constitute malice aforethought?
1) Intention to kill even if not premeditated
2) Intention to inflict serious bodily harm
A shoots at B with sole intent to cause serious

bodily injury---B dies from the shot, A has

committed murder
3) Recklessness with respect to:
Death; or
Serious bodily injury
A does not intend to kill B, but is reckless as
to death or serious bodily injury)
4) Intention to commit certain felonies (i.e. felony
If A is committing felony burglary and kills
someone, the court must determine if the intent
to commit the felony satisfies the malice
aforethought mens rea.
5) Intention to avoid arrest or escape
o All 5 have been held at common law to constitute malice
Most states by statute now classify murder into 1st and 2nd degree
o 2nd Degree- killing with malice aforethought

o 1st Degree- other elements may be necessary to charge with

this degree
or legislature may separate one of the common law
types of murders from before (1-5) and place it under
1s degree for higher penalty
premeditated- deliberation is often a factor in 1st
killing with mere intention to kill is often 2nd
legislature selects other situations in which killing
constitutes 1st degree, though there could be
constitutional issue

Manslaughter- Killing w/o malice aforethought

1) Voluntary- sometimes called mitigated murder
o 1- Provocation
A assaulted by B, A loses control and kills B
Sudden quarrel or heat of passion
o 2- Imperfect Defenses
2) Involuntary- w/o malice aforethought
o 1- Negligence
Criminal negligence
o 2- Unlawful Act doctrine
Misdemeanor manslaughter
B. Intentional Killings
1) Degrees of Murder: The Deliberation-Premeditation Formula
o State v. Guthrie
killed co-worker. had some psychiatric issues, and
the victim had flicked him on the nose with a towel.
stabbed co-worker, killing him.

o Midgett v. State
regularly beat his son. On one such occasion, the
injuries sustained injuries that led to the sons death.
Rule: Duty of the court is to give those accused of first
degree murder the benefit of the requirement that they
be shown by substantial evidence to have premeditated
and deliberated the killing.
must have had the intent of killing his son vs.
beating/injuring him.
The evidence in this case supports only the conclusion
that the appellant intended not to kill his son but to
further abuse him or that his intent, if it was to kill the
child, was developed in a drunken, heated, rage while
disciplining the child. Neither of those supports a finding
of premeditation or deliberation.
Court lowers the conviction from first degree to second
degree based on the theory of intent to cause serious
physical injury.
o State v. Forrest
Son euthanized his father in the hospital. Father was
terminally ill.
Rule: First degree murder is the intentional and
unlawful killing of a human being with malice and with
premeditation and deliberation.
Circumstances to be considered:
Want of provocation
Conduct and statements of before and after
Threats and declarations of before and during
Ill-will or previous difficulty between parties
Dealing of lethal blows after deceased has been
rendered helpless
Evidence that the killing was done in a brutal

2. Manslaughter: Heat of Passion Killings

o a. Common Law Principles
o Girouard v. State (Provocation)
Wife provoked by saying he was a lousy fuck. She
jumped on his back and pulled his hair. stabbed her
19 times.
Issue: Whether words alone are provocation adequate
to justify a conviction of manslaughter rather than one
of 2nd degree murder?
Holding: NO
Words can constitute adequate provocation if they are

accompanied by CONDUCT indication a present

intention and ABILITY to cause bodily harm
Wife was incapable of causing bodily harm, thus,
there was not adequate provocation to mitigate murder
to manslaughter
Standard is whether reasonable person would have lost
o Note 6
Should mitigation transfer when the non-provoking
party who was killed was killed intentionally?
Traditionally, if the non-provoking party was killed
accidentally, mitigation was transferred, along
with intent to kill.
C. Unintentional Killings: Unjustified Risk-Taking
2nd Degree Murder w/ Implied Malice- when person acts the
Murder/Involuntary Manslaughter=Recklessness/Criminal
If youre in a depraved heart district, the jury will have to determine
what a depraved heart was, usually a I dont care mentality.
Usually a gross deviation worse than negligence.
Berry v. Superior Court
o had fighting dog tethered to side of house. Dog killed a 2 yr.

o Rule: 2nd Degree Murder is defined as the unlawful killing of a

human being with malice aforethought, but w/o the additional
elementsi.e. willfulness, premeditation, and deliberation
that would support a conviction of 1st Degree Murder.
Malice can be implied when no considerable
provocation appears, or when the circumstances
attending the killing show an abandoned and malignant

State v. Hernandez
o Involuntary Manslaughter
Mens Rea- Negligence
o Prosecution introduced stickers with drinking slogans on
them. Arguing that the stickers showed was aware of the
risk he was creating. In a sense, that he knew drinking such
large amounts of alcohol would distort his reality and driving
o Rule: Criminal Negligence- A person acts with criminal
negligence or is criminally negligent when he fails to be aware
of a substantial and unjustifiable risk that circumstances exist
or a result will follow, and such failure constitutes a gross
deviation from the standard of care which a reasonable
person would exercise in the situation.
o State v. Williams
Parents were convicted of manslaughter b/c they
negligently failed to supply their 17-month child with
necessary medical attention, and as a result, the infant
D. Unintentional Killings: Unlawful Conduct
The Felony-Murder Rule
The Doctrine in its Unlimited Form
ALI, MPC and commentaries

People v. Fuller


s were involved in a high speed chase brought

on by burglary. s ran red light and struck car,
killing driver. s are charge with first degree
Rule: Felony-Murder Rule
Immediate flight is often regarded as the
continuation in the felony
Ct. found that the s were guilty of first degree
In this case, legislature said burglary is one of the
felonies it included in the statute, thus the Court

was no allowed to inquire whether the felony was

one with inherent danger involved.
There is a split on how to determine inherent
dangerousness. Can look at it in the abstract,
others will allow the jury to look at s conduct.
Look at fact patterns and explore alternate
theories of culpability.
The Policy Debate
Limitations on the Rule
ii. The Inherently Dangerous Felony Limitation
Felony-Murder by its very nature to punish as
murder those who commit felonies and someone
dies as a result..
People v. Howard
Tahoe case

iii. The Independent Felony (or Merger) Limitation

Whether the predicate/felony is sufficiently
independent of murder that it can be used to
supply the required intent.
Sufficiently independent of killing alone.
Death has to be sufficiently related to the

A hits B intentionally over the head, and B dies.

Prosecutor decides that one who intentionally hits
another over the head commits assault/battery (a
felony). Wants to pursue felony-murder, arguing
that the assault provides the intent needed.
People v. Robertson
Man negligently shoots at trespassers
Negligently discharging firearm, when the
actor does not intend to kill, is independent
enough to use in felony-murder.

o 3.

A) robbery= sufficiently
B) burglary (in which the felony
that the intruder intends to
commit inside is assault with a
deadly weapon)= insufficiently
C) burglary (in which the felony
that the intruder intends to
commit inside is theft)=
sufficiently independent
D) child abuse= depends on the
kind of abuse
E) discharging a weapon at a
inhabited dwelling=
insufficiently independent
Usually assault crimes
iv. Killings in the Perpetration or in Furtherance of a

A and B enter market intending to commit armed

robbery. They commit the robbery and A kills the
Obviously, with regards to A, we could find
mens rea elements or felony-murder, but B
will also be guilty of murder as if he had
pulled the trigger himself, through felonymurder theory.
State v. Sophophone
and accomplice are fleeing from
aggravated robbery. is apprehended and

put is squad, subsequently, co-felon is

caught and killed by officer
is charged with felony-murder
Who does the killing AND who is killed are
o Here, a law enforcement officer killed
a co-felon, a co-felon did not kill an
innocent victim, and a non-felon did
not kill a felon or innocent victim
o If the death is the death of the cofelon, the question is whether the
legislature intended the felony-murder
rule to apply to a felon whose co-felon
was killed by a third party
o If an innocent victim is killed by a cofelon, then felony-murder will almost
always apply
o Special Situation that is treated
different even in agency jurisdiction
A and B go into market to rob it.
A grabs innocent person and
uses as shield. Person behind
counter shoots at A and kills
innocent bystander.

Here, the proximate cause

approach will be used, it is
an exception to the
agency rule. Felon here
sufficiently participated in
the killing.
Human shield exception is
very narrow, applies only
to particular set of facts
(i.e. felon using human as

Ct. adopts the Agency Approach, whereas

the killing must come from the hands of the
Proximate Cause Approach will look to
o Is this third party action sufficiently
foreseeable given the nature of the
Note 3
o Some states, like New Jersey, write
statutes that are specific as to when
felony-murder will apply.
NJ- felony-murder applies when
the actor, acting either alone or
with one or more other persons,
is engages in the commission of
[an enumerated felony] and in
the course of such crime or of
immediate flight therefrom, any
person causes the death of a
person other than one of the
If no felony-murder culpability exists, can
you go to other theories of culpability?
o Of course.

o A and B enter a liquor store to rob it.

C remains in the car. A told Mr. W to
put the money in the bag, and also
directed, him not to move or A would
shoot. Mrs. W shoots B.
o A and C are charged for Bs death.
o Ct. did not apply the felony-murder
doctrine, but did find that As conduct
in store was malicious/reckless
2. Unlawful-Act Manslaughter (The Misdemeanor Manslaughter Rule)
o Alternative theory for common law involuntary manslaughter
2 alternatives
misdemeanor manslaughter
negligent homicide

MPC does not recognize felony-murder

Chapter 9

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C. Principles of Justification
5. Necessity (Choice of Evils)
a. General Principles
o Nelson v. State
Act charged must have been done to prevent a
significant evil
There must have been no adequate alternative
The harm caused must not have been
disproportionate to the harm avoided
b. Civil Disobedience
c. Defense to Murder?
o The Queen v. Dudley & Stephens

Is necessity a defense to murder?

The ct. struggles w/ several policy issues.
There is a bright line where the defense of
is at the taking of a life. PERIOD.
D. Principles of Excuse
1. Why Do We Excuse Wrongdoers?
2. Duress
a. General Principles
o US v. Contento-Pachon
thought he was going to a job interview, but was
instead asked to be a drug mule. declined, and drug
dealer threatened s wife and child. agreed to run
drugs. did not turn himself in in Columbia or Panama.
Caught in US when he was x-rayed.

Issue: Whether can employ the defense of duress?

Holding: YES
3 Elements of Duress:
Immediate threat of death or serious bodily
A well-grounded fear that the treat will be
carried out, AND
No reasonable opportunity to escape the
threatened harm.
o What alternatives are available under duress that are not

available under necessity?

Reporting to authorities- not possible under necessity
b/c the forces are natural
Fleeing/Avoiding the Situation
Resisting the Threat
B. Necessity v. Duress
o Duress is usually classified as an excuse instead of a
o People v. Unger
escaped from prison. was threatened w/ death b/c
he had reported a previous assault. said he left the
honor farm (minimum security prison) to save his life.
Issue: Whether it was error for ct. to instruct jury to
disregard s reasons for escaping AND to refuse to
instruct jury on defenses of duress and necessity?
Holding: YES
Most jurisdictions take the approach that duress is not
available for murder, possibly not for any homicide.
3. Intoxication
2 types in criminal law:
o voluntary

o involuntary
Specific Intent- intent to bring a/b a certain result
o Also, one has knowledge of the illegality
Some wont let evidence in for vol. intox. defense
MPC approach:
o Allows evidence of VI to negate an element of the offense.
o One exception in subsection 2. Where recklessness
established an element of the offense, if the actor, due to selfinduced intoxication, is unaware of a risk of which he would
have been aware had he been sober, such unawareness is
Thus, if youre dealing w/ recklessness, but the reason
for s lack of awareness of the risk is due to his
voluntary intoxication, cannot use VI as defense
Commonwealth v. Graves

4. Insanity
c. Struggling for a Definition: The Tests of Insanity
State v. Johnson
o Insanity defense, in any jurisdiction, will provide an excuse.
The idea is to not punish b/c is not culpable enough.
o 4 Tests of Insanity: everyone requires a diagnosable mental
disease/defect, this creates the battle of the experts
MNaghten Rule (2 prongs: cognitive and moral)
Cognitive- does not know the nature and quality
of the act he was doing (cognitive incapacity)
Moral- does not know right from wrong (moral
If meets either of the prongs, he can invoke the
insanity excuse
Irresistible Impulse or Control Test:
Though a person knows the act is wrong, he is
yet, by an insane impulse, irresistibly driven to
commit it, the law must give to this condition its
exculpatory effect.

The delusion proceeding from a diseased

mind so subverts his will as to destroy his
free agency by rending him powerless to
resist by reason of the duress of the
Product Test (Durham Test):
An accused is not criminally responsible if his
unlawful act was the product of mental disease or
mental defect.
Unpopular test. Only followed in New Hampshire.
Test was eventually abolished, b/c juries were
heavily relying on expert testimony.
MPC Test: (Cognitive Element of MNaghten and
Irresistible Impulse) Cognitive and Volitional
lacks substantial capacity to appreciate the
criminality/wrongfulness of his conduct
(MNaghten); OR
to conform his conduct to the requirements of law
(Irresistible Impulse)
Every jurisdiction will attempt to define what is a
sufficient mental defect.

Chapter 10

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A. Overview
B. Attempt
General Principles
o Attempt crimes were created to allow the police to intervene
before a crime is actually committed
o One cannot be convicted of an attempted crime and the
complete crime. (Doctrine of Merger)
o A sees B from a distance. A pulls out a rifle, but the rifle
Is A guilty of homicide? NO
Is A guilt of attempted homicide? Maybe/Probably
o The reason for punishing one for attempting a crime w/o




actually causing harm is to prevent that person from

attempting the crime in the future
o Law of Attempt is Mens Rea Oriented
o Must have the mens rea of the target offense
Grading Criminal Attempts
o Prevalent approach is to grade the attempted crime less than
the complete crime
o Also graded in relation to complete crimes. Thus, attempted
murder will be graded more severely than attempted robbery
Mens Rea
o People v. Gentry
Jury was instructed that any of the mens rea elements
for murder (i.e. intentionally, knowingly, or recklessly)
were sufficient to be convicted of attempted murder
Rule: To be convicted of attempted murder, the must
have the specific intent to kill. No other mens rea will
suffice (e.g. knowingly, recklessly, negligently).
Actus Reus
o Which test will your jurisdiction use?

The Physical Proximity Doctrine- the over act required

for an attempt must be proximate to the completed
crime, or directly tending toward the completion of the
crime, or must amount to the commencement of the
consummation (how close to completion is the actus
The Dangerous Proximity Doctrine- a test whereby the
greater the gravity and probability of the offense, and
the nearer the act to the crime, the stronger is the case
for calling the act an attempt
Model Penal Code Test
Know that courts reject:

The Last Act Test- requires that the do

everything possible up to the completion of
the crime (e.g. if a man buys a gun
approaches the person he intends to kill,
and aims the gun, he has not attempted
murderhe must pull the trigger to be guilty
of attempted murder)
Equivocality Approach- does s action
speak criminality, if the actus reus is
susceptible to a non-criminal interpretation,
it cannot satisfy the actus reus necessary
for attempt
o Commonwealth v. Peaslee
Attempted Arson
Set up flammables to burn a building. Consulted a third
party to set the fire, third party refused. On his way to
set the fire, changed his mind.
o People v. Rizzo
Men were planning to rob a man. Drove around town,
but never found him.
Probably a better example of a proximity approach v. a
dangerous proximity approach
Ct. found that there was no attempt b/c the intended
victim/target was never present

o State v. Reeves


Special Defenses
o A. Impossibility
Factual Impossibility- occurs when s intended end
constitutes a crime but he fails to consummate it b/c of
a factual circumstance unknown to him or beyond his
There is a split among authority regarding factual
impossibility. Some will follow the MPC 5.01 (1)
(a) and some will say that it is
Legal Impossibility:
Pure Legal Impossibility- applies when an actor
engages in conduct that he believes is criminal,
but is not actually prohibited by law
Hybrid Legal Impossibility- exists if s goal was
illegal, but commission of the offense was
impossible due to a factual mistake by him
regarding the legal status of some factor relevant
to his conduct
o People v. Thousand
was charged with attempted distribution of obscene
material to a minor
sent a picture of a male genitalia to an under cover
cop pretending to be a minor
Issue: Whether the defense of impossibility is
permissible for a charge of attempt?
Holding: NO
Reasoning: attempt statute only requires a showing of:
1) intent to commit the prohibited offense; AND 2) an
act toward the commission of that offense. The notion
that it would be impossible for to have committee
the completed offense is simply irrelevant to the
o B. Abandonment

You have to look at abandonment differently w/ each

Commonwealth v. McCloskey
Prison abandons a escape
Charged w/ attempted prison breach
You cannot abandon a completed crime (e.g. you
cant claim abandonment after you kill someone)
Ct. held there was no attempt, b/c he actions
were merely preparatory, not perpetrating
Concurring: thinks it sound to apply abandonment
retroactively, but traditional approach is that
abandonment is not a defense for a completed
offense or attempted offense. But can be
considered when there is abandonment after one
has reached the point of attempt
Once a has gone so far as to have committed a
punishable attempt, the crime is complete and he or
she cannot then abandon the crime and avoid liability
anymore than a thief can abandon a larceny by
returning the stolen goods
Note 5: Some cts. will say that once a (social) harm as
been sustained there is no defense of abandonment

C. Assault

D. Solicitation
In some jurisdictions, solicitation is enough to constitute an
Note 6 (p. 808)
o Know approaches 1 & 4
1) Treats every solicitation as a specific type of attempt
to be governed by ordinary attempt principles, the
solicitation being an over act that alone or together with
other overt acts may surpass preparation and result in
4) No matter what acts the solicitor commits, he cannot
be guilty of an attempt b/c it is not his purpose to
commit the offense personally

State v. Cotton
o was in jail and wrote a letter to his wife to persuade his
stepdaughter to not testify against him. gave cellmate the
letter to mail. Cellmate gave letter to the police. eventually
wrote another letter, again asking wife to persuade
stepdaughter, which was never sent.
o Issue: Can be convicted of solicitation?
o Holding: NO
o Rule: A person is guilty of criminal solicitation if, w/ the intent
that another person engage in conduct constituting a felony,
he solicits, commands, requests, induces, employs or

otherwise attempts to promote or facilitate another person to

engage in conduct constituting a felony within or without the
o Reasoning: State purposefully adopted version of MPC w/o a
certain provision that states, conduct designed to effect
communication of the culpable message is sufficient to
constitute criminal solicitation and there is therefore no need
for a crime of attempted solicitation. By omitting this
language from the States statute, the legislature did not
intend uncommunicated solicitations to constitute solicitation.
E. Conspiracy
1. General Principles
o At common law, the agreement alone was the actus reus, but
many modern statutes require an overt act along with the
agreement. Overt act must be in furtherance of the offense.
o Conspiracy, traditionally, does not merge with the target
o There is a philosophy that when there is a group agreement
culminating in criminality, there is a higher possibility of social
o Crucial Questions:
Who agreed?
What was agreed to?
o People v. Carter

Conspiracy- a partnership in criminal purposes, a

mutual agreement or understanding, express or
implied, between two or more persons to commit a
criminal act or to accomplish a legal act by unlawful

o Pinkerton v. United States

Jurisdictions, in the states, are split on whether to adopt
the Pinkerton approach
This rule is the rule in the federal system.
Two brothers were convicted of substantive tax crimes

o A&A

and conspiracy. argues that he took no part in the

substantive crimes (no actus reus), b/c he was in jail.
Rule: So long as the partnership in crime continues, the
partners act for each other in carrying it forward. An
overt act of one partner may be the act of all without
any new agreement specifically directed to that act.
Had withdrawn from the conspiracy, then would not
be culpable.
is guilty of conspiracy and liable for any foreseeable
act done by a co-conspirator in furtherance of the
The theory of Pinkerton is if a group sets in motion a
series of acts that lead to a crime, you dont ask if
has purpose or knowledge of the crime. It need not be
shown. You are asking different questions.
What was the conspiracy, what was the nature of
the conspiracy, where the crimes foreseeable?
Only those who were co-conspirators are susceptible to
the Pinkerton Approach.
There is no requirement that one subject to Pinkerton
Approach be a major participant/conspirator.
v. Pinkerton (p. 815, Note 3)
A and B conspire to rob banks. B, unknown to A, steals
a car and then robs a bank.
A&A- for bank robbery

Did he have mens rea?

o Knowledge?
o Purpose?

Did he encourage?
Pinkerton- for bank robbery
Is he a co-conspirator?
Was the bank robbery foreseeable?
A&A- for car robbery
Did he have the mens rea?
o Knowledge?
o Purpose?
Did he encourage?
Pinkerton- for car robbery
Is he a co-conspirator?
Was the car robbery foreseeable?
Was it done in furtherance of the

2. Mens Rea
o People v. Swain
2 s were involved in a crime. helped kicked a door
in, and then abandoned
Issue: Whether s withdrawal was effective?
Holding: NO
Rule: the crime of conspiracy is defined as two or more
persons conspiring to commit any crime, together with
proof of the commission of an overt act by one or more
of the parties to such agreement
o Note 2 (p. 821)
CA Ct.- If there is a sufficient agreement, we will
consider that to be premeditation
o The agreement must be proven beyond a reasonable doubt
o People v. Lauria
ran a message service. He knew that prostitutes used
it for business.
Issue: Was there an intent to further?
Holding: NO

In this case, it is harder to prove conspiracy than aiding

and abetting.
3. Actus Reus
o Commonwealth v. Azim
drove co-conspirators after they assaulted and robbed
Rule: Conspiracy may be inferentially established by
showing the relationship, conduct, or circumstances of
the parties, and the overt acts on the part of the coconspirators have uniformly been held competent to
prove that a corrupt confederation has in fact been

o Commonwealth v. Cook
and principal invited victim to join them, in a public
place, and have some beer. The two men introduced
themselves to the victim. All three were walking to the
store when the victim tripped. At that moment, the
principal jumped on the victim and raped her. did not
try to stop, but did make encouraging remarks.
Obviously an accomplice, but is a co-conspirator?
Holding: NO
The evidence does not lead to an inference of an
agreement. The facts show more of a chance encounter,
and a spontaneous decision by the principal to rape the
4. Conspiracy: Bilateral or Unilateral?
o Traditionally, conspiracy was bilateral. It needed at least two
culpable conspirators. Did not have to know all the players,
but there was no unilateral conspiracy.
o People v. Foster
approached another about robbing an old man. The
potential co-conspirator had no intent to participate in
the robbery.
Issue: Whether the Illinois legislature intended to adopt
the unilateral theory of conspiracy?
Holding: NO

Rule: Bilateral Theory of Conspiracy- there must be at

least two culpable parties for there to be a conspiracy.
Reasoning: The legislature did not intend to adopt the
unilateral theory of conspiracy. Looking at legislative
history did not indicate that they were clearly making
the change. Illinois already has a solicitation statute,
which encompasses the actions of unilateral conspiracy.
Proponents of the Unilateral Theory argue that the actor
has the mens rea necessary, so theres no need to
require another party.
o If one is indicted on conspiracy, but one party is unidentified.

Can the one known be convicted? Yes, but the prosecution will
need to show there was an agreement beyond a reasonable
5. Scope of an Agreement: Party and Object Dimensions
o In jurisdictions that require an overt act as part of conspiracy,
an overt act of one co-conspirator will apply to ALL coconspirators
o Kilgore v. State (Chain and Wheel Conspiracies)
Hearsay evidence was allowed in lower court
Should not have been b/c the hearsay exception for
conspiracy is only admissible if comment comes from a
co-conspirator. In this case, Benton was not a coconspirator w/ , ergo, the hearsay evidence is
Rule: The testimony could only be admissible under the
exception to the hearsay rule which provides that the
out-of-court statements of one conspirator are
admissible against all conspirators
Did know a/b the previous conspiracy?
NO, ergo there is no conspiracy
must reasonably know of the other conspiracy
to be considered a co-conspirator
o Braverman v. United States

o Iannelli v. United States

Chapter 11

11/01/2008 18:05:00

A. Accomplice Liability
1. General Principles
a. Common Law Terminology and Its Significance
o State v. Ward
Historical background on the distinction between
principal and accessory
o Suppose A tells B that he is going to rob the store. B says,
OK. Ill stay in the car. A robs the store
A is the principal (in the 1st degree)
B is an accessory (principal in the 2nd degree)
If C donated his car for the robbery the day before,

then C is an accessory before the fact

A is guilty of larceny
B can also be guilty of larceny
C can also be guilty of larceny
Most states have enacted statutes that hold a principal
in the 2nd degree and an accessory before the fact can
be punished just as harshly as the principal in the 1st
o There is no crime for accessory. It is a theory to show
o An accessory after the fact, will not be as culpable as a
principal in the 1st or 2nd degree OR as an accessory before
the fact
b. Theoretical Foundation: Derivative Liability
2. Elements of Accomplice Liability: In General
State v. Hoselton
o was w/ friends. did not know they intended to steal. They
did. remained at end of barge, went to car when he saw
they were stealing, and never received any of the stolen
Notes (p. 866)

o 3.

F. YES, MPC 2.06 (3) (a) (iii) omission

3. Mens Rea
a. Intent: Purpose or Knowledge?
o When talking a/b accessorial liability, you are saying the
accessory is just as guilty as the principal
Does he have to know or does he have to have the
Real issue is what do you need as a prerequisite to say
that an accessory is guilty of the same crime as the
o Person sitting in car has to have intention to aid
o People v. Lauria
ran a message service that 3 prostitutes used.
knew that they were prostitutes and still allowed them
to use his service (in jurisdiction that follows the
knowledge requirement, would be an accessory).
This jurisdiction follows the purpose requirement.
TN is a purpose jurisdiction
4. Actus Reus
The actus reus component of accomplice liability is clear cut, e.g.,
the secondary party solicited the offense, furnished an
instrumentality used in the commission of the crime, or provided
other significant active aid in the perpetration of the offense
State v. Vaillancourt
o stood by as perpetrator attempted to break into house

o Rule: accomplice liability requires the actor to have solicited,

aided, agreed to aid, or attempted to aid the principal in
planning or committing the offense
o mere presence does not constitute aiding and abetting
Problem on 885
o Rape in bar. Some patrons did nothing, some cheered, and
the bartender did nothing
Patrons who did nothing are not culpable, b/c they have
no duty to act and cannot be culpable for not acting
Patrons who cheered are culpable, b/c they did act (i.e.
actus reus).
Bartender is culpable b/c he has a duty to act, and
inaction can be punished
Wilcox v. Jeffrey
o Spectator culpability
o Guilty b/c he did not boo at the sax player
State v. Helmenstein
o Testimony given by accomplice must be corroborated
Statute provides that a conviction may not be had upon
the testimony of an accomplice unless his testimony is
corroborated by such other evidence as tends to
connect wit the commission of the offense, and the
corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof
Husband leaves for work, and wife says Dont get caught. He
embezzles. Is she an accomplice? First need to know her mens rea
Husband to wife, I plan to kill my mother. Wife to husband, I
wont give you any problem. Is wife an accomplice? A little
harder to determine
People v. Genoa
o agreed to finance a drug deal w/ undercover cop. Gave
officer the money. was convicted of attempted possession
w/ intent to deliver

o Rule: Certain elements must be established to show someone

aided and abetted the commission of a crime. Those elements
are that: 1) the underlying crime was committed by either
or some other person, 2) performed acts or gave
encouragement which aided and assisted the commission of
the crime, and 3) intended the commission of the crime or
had knowledge that the principal intended its commission at
the time of giving aid or encouragement
Hypo- innocent party
o Suppose A wishes the victim dead, and says to B, a six year
old child, the victims son. A tells B to put poison in victims
cocoa, and B does it. In this jur. it is well established that a 6
year old cannot have the requisite mens rea.
Should the law treat A as an accessory to B?
If so, A would get off, b/c B is not culpable. But
under perpetration by means analysis, A is the
principal and B is an unwitting accomplice. A is
using B as an instrument for causing death of V.
This theory would also consider A as the principal
if B is duped (given misinformation), coerced, etc.
Perpetration by Means- if uses a third party as
an instrument, through coercion, misinformation,
or 3rd party is incapable of having the mens rea to
commit crime, is the principal. MPC 2.06 (2) (a)

6. Relationship of the Liability of the Accomplice to the Principal

a. If the Principal Is Acquitted
o United States v. Lopez

helps break his girl out of prison by landing helicopter

at prison
Issue: Whether is guilty of A&A if principal succeeds
on necessity/duress defense (justification defense)?
Holding: No
If principal succeeds on justification defense, then no
crime will have been committed, thus cannot be guilty
of A&A.

o United States v. McCoy

A&Aed a principal in a drive-by, and principal killed
victim. Both are convicted of 1st degree murder.
Principal appeals that he should get voluntary
manslaughter b/c of imperfect self-defense. App. Ct.
reverses both and holds that if principal is convicted of
voluntary manslaughter, cannot be guilty of 1st degree
Issue: Whether aider and abettor may be guilty of a
greater homicide-related offense than the actual
perpetrator committed?
Holding: Sometimes YES
Rule: When a person, with the metal state necessary for

an aider and abettor, helps or induces another to kill,

that persons guilt is determined by the combined acts
of all the participants as well as that persons own mens
rea. If that persons mens rea I more culpable than
anothers, that persons guilt may be greater even if the
other might be deemed the actual perpetrator.
Although joint participants in a crime are tied to a single
and common actus reus, the individual mentes reae or
levels of guilt of the joint participants are permitted to
float free and are not tied to each other in any way.
7. Limits to Accomplice Liability
In re Meagan R.
o Rule: although generally a may be liable to prosecution as
an aider and abettor to commit a crime even though he or
she is incapable of committing the crime itself, the rule does
not apply where the statute defining the substantive offense
discloses an affirmative legislative policy the conduct of one of
the parties shall go unpunished

o The Legislature has dealt with crimes which necessarily

involve the joint action of two or more persons, and where no
punishment at all is provided for the conduct, or misconduct,
of one of the participants, the party whose participation is not
denounced by statute cannot be charged on either a
conspiracy or aiding and abetting theory
People v. Brown
o helped kick in a door, but then abandoned the crime
o Issue: Whether the withdrawal was effective?
o Holding: NO
o Rule: As an accomplice, to abandon an attempt, must
abandon before the attempt is completed.
o Here, did not abandon before the attempt (which was
completed when he kicked the door). So is an aider and
o Crime was attempted burglary
o s actions were enough for attempted burglary


11/01/2008 18:05:00

Do not worry a/b case names

At least part of exam is essay, probably most
How to deal w/ essay fact pattern, in light of fact there are splits of
Know the MPC approach for each crime/defense.
Organizing answer to take magic out of splits of authority
o Let him know I recognize the splits of authority
Ex- A commits a crime and it turns out to be
impossible. A goes to rob bank, but it is out of business
It is not whether he is guilty of robbery, but guilty
of attempt?
OUTLINE ANSWER (use as checklist)

Some would say that he cannot be guilty of

attempt b/c it is factually impossible for A to
commit crime. Others would hold him guilty
of attempt.
If he asks of culpability, theres no need to
discuss split.
Discuss the various approaches.
HOMICIDE (including grading between 1st and 2nd degree murder,
dont worry a/b MPC grading of homicide)
Dont let the common law definition of a crime and discussing
varying approaches to culpability.
If there are multiple parties and multiple crimes in a problem, does
not matter whether I address crime-by-crime or party-by-party.
Only allowable abbreviations are and MPC.

Whether the conspiracy is over is determined by the circumstances.

There is no objective test.

The notion of entrapment as a defense is a separate matter, there is
a policy against govt. manufacturing crime. Where an agent of the
govt. essentially creates a crime by instilling the desire to commit a
crime where it did not previous exist.

Issue is predisposition.
Justification- I chose to do this and it was the right thing to do
Excuse- concern is whether was actually choosing
MPC v. Common Law in regards of duress
MPC has person of reasonable firmness language
MPC does not rule out duress for the taking of a life, it is precluded
at common law
Ordinarily one is responsible for putting themselves in the position

of being under duress. Under MPC, you cant use duress if you
recklessly (aware of risk) put yourself in that position, and if you
negligently put yourself there, you are culpable for negligent
crimes. Under Common Law just asks whether was responsible
for being in that position.

Specific Intent- term is used for other selective intents, no clear


If a target crime has a mens rea of negligent or reckless can there be

an attempt?

Defensive Force

11/01/2008 18:05:00

Defensive Force
All said will have a parallel for defending another person
It is frequently state that the person who is not an initial aggressor
(provoking party) and uses reasonable force to subdue an
adversary when he reasonably believes he is in immediate danger
or bodily harm from the adversary and believes the use of such
force is necessary.
Traditionally, a line is drawn between defenders using deadly force
and non-deadly force. It is stated that it is never reasonable to use
deadly force to repel an adversary.
There must be a reasonable apprehension of the danger, and the

defender must so apprehend. Thus, if one would reasonably

apprehend the danger, but the defender did not apprehend, then he
cannot invoke the defensive force defense (thus, the test is
somewhat objective and subjective).
The definition of deadly force is usually in the context of likelihood.
Whether the force is likely to cause death or serious bodily harm?
Usually fact specific.
If aggressor makes a good faith, effective (communicated)
withdrawal, then the aggressor can reclaim the right to the
defensive force defense.
If aggressor initiates, but doesnt use deadly force, and responding
party uses deadly force, can use deadly force to defend.
Retreat Rule- A minority of jurisdictions hold that before one can
use deadly force to defend, one must retreat.


11/01/2008 18:05:00

Felony murder has its own issues/policies of causation

Outside of felony murder, causation is an issue that can arise when

youre dealing with a crime that requires some result to occur.
Does the result occur in a way not intended, contemplated, or

Ask 3 Questions, IN THIS ORDER:

1) Did have the mens rea required by statute?
2) Whether s actions constituted an actual cause in fact of that
o If the answer is yes,
o Hypo
Suppose intends to shoot victim dead. shoots at
victim, dies, but of a heart attack.
s actions were the cause of s death, but was not
o But for test
But for s conduct, would the result have occurred
If it is no, then you meet the cause in fact
o One exception, very narrow
Suppose 2 parties simultaneously shoot at victim and
bullets hit simultaneously, each would have caused
You cannot say but for on either party, but there is still
cause in fact, b/c the law does not want to let either
party get away with their actions
3) Whether the variation between the result intended and the way it
occurred is so different that it would be unjust to hold culpable?
o Foreseeability is a factor regarding intervening causes
o Kinds of things that can intervene

Actions of 3rd parties

The victims actions (e.g. treating a wound)
Actions by natural occurrence

o Botched rescue.
wounds victim and somebody comes and tries to
help, but botches it and victim dies
Is relieved of culpability?
If the intervening act is in response to s
actions, a ct. is less likely to relieve of
o A shoots at B intending to kill B. B perceives being shot, but it
misses. B runs 5 blocks and is struck by lightning and dies.
Is A relieved of culpability?
Most likely a ct. will consider the lightning so far
removed that A will be relieved of culpability for
INTENTIONAL murder, but A will be guilty of
attempted murder.