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Mark Strage - Fall 2018 - Criminal Law - Godsoe

Crime = Actus reus + Mens rea + Causation

I. Principles of Punishment and Elements of a Crime
A. Basis for Punishment, Intended Outcomes MPC 1.02
1. Prevent harm to individuals/public
2. Control potential offenders
3. Safeguard non-criminal conduct from condemnation
4. Give fair warning
5. Differentiate severity of offenses
6. Also: The law must reach every corner of society. Regina v. Dudley and Stephens.
B. Justification for Punishment
1. Utilitarian: Punishment is justified because of its social usefulness
a) Forward looking
b) Deterrence, incapacitation, rehabilitation.
c) Costs v. benefits
d) Dudley & Stephens: Policy that the law reaches across the whole British Empire
resulted in conviction; however, conviction overturned on basis of almost no moral

2. Retributivism: Punishment is justified because people “deserve it.”

a) Backward looking.
b) Desert, blame-worthiness, moral culpability
c) Proportionality
3. Combined in MPC 1.02 Sentencing & Offender Treatment Guidelines
a) prevent offenses from being committed (utilitarian)
b) promote correction and rehabilitation (utilitarian)
c) safeguard offenders from arbitrary or disproportionate punishment (retributive)
U.S. v. Madoff (SDNY 2009) – Judge Chin stacked the max penalties for each conviction
into a 150 year sentence, sending a utilitarian message that white collar criminal
scheming is not tolerated. She also she felt the damage he did was so great that he should
not have hope to leave prison for the rest of his life. Utilitarian rationale, retributivist
limitations, proportionality.

C. MPC Crime Formula

Actus Reus + Mens Rea + Causation = Crime

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D. Actus Reus: Physical or external elements of a Crime

1. All three elements of an offense must have the requisite threshold of mens rea (purpose,
knowledge, reckless, negligent) unless otherwise stated.
2. Basic actus reus criteria:
a) Conduct (shoot a gun, break speed limit)
b) Result of Conduct (kill someone) -MPC 2.02(4)
c) Attendant Circumstances (fact that must exist. age in statutory rape.)
d) Must be voluntary
E. Statutory Interpretation
Look at City of Plainview v. Beyonce Knowles
1. Plain Meaning
What does “vehicle” mean?
Is a moped more like a bicycle or more like a car?
2. Legislative Intent
Preserving the safety of the park, a place for children
Created in response to a high-profile car accident
3. Purpose/Function
What vehicles do we want in the park in the future?
Do we also want to protect the ecology of the park? Safety of adults?

F. The Complexities of Crime Control

1. Deterrence
2. Rehabilitation & Incapacitation
3. “Right on Crime” Conservative-based criminal justice reform movement
4. We need cost-effective criminal justice that enhances public safety.
5. Prisons incapacitate dangerous and career criminals but also harden nonviolent, low-risk
offenders into a greater risk than when they entered.
6. An ideal criminal justice system utilizes the power of families, charities, faith-based
groups, and communities to reform amenable offenders to return to society.
7. Policies for offenders and the corrections system must align incentives with our goals of
public safety, victim restitution and satisfaction, and cost-effectiveness.
8. The current system grows when it fails; the ideal rewards results.
9. Reserve criminal law for blameworthy conduct or conduct threatening public safety.
G. Sentencing
MPC Purposes of Sentencing

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1. deterrence
2. rehabilitation
3. prevent excessive punishment
4. give warning of punishment
5. differentiation of individualized punishment
6. define functions of courts and agencies in dealing w/ offenders
7. advance use of scientific methods and knowledge of sentencing
8. integrate responsibility into single agency (i.e. State Dept. of corrections).
H. What to Punish:
The Harm Principle: Alternatives to criminalization for “victimless crimes” are taxes,

regulation, and public health initiatives.

Victimless Crime: A legal offense to which all parties consent and no party is injured.
I. Legality
A person may not be prosecuted under a criminal statute not previously published.
Nulla poena sine lege (Latin, “no penalty without a law”): One cannot be punished for doing
something not prohibited by law. This principle is accepted and codified in modern democratic
as a basic requirement of the rule of law.
Commonwealth v. Mochan, PA – man makes lewd phone calls to a woman, and the state
him under old, obscure English common law tort. The appellate court upheld, but a dissenting
said this made something a crime which had never been held a crime in Pennsylvania. This is
job of the legislature, and so the court acted improperly in addition to creating a crime after the
State v. Rogers, TN – Tennessee retroactively got rid of the year-and-a-day statute of
limitations, so
that Rogers became prosecutable; and the Supreme Court said this did not violate the right to
warning. Scalia disproved of this retroactive criminalization. Wisconsin eliminated year-and-a-
but not retroactively. (legality)
J. Rule of Lenity (when interpreting statutes)
Resolve ambiguity about crime’s definition in favor of defendant; otherwise it’s a legality
problem. Supposed to be used after all tools of interpretation have been exhausted and a
doubt persists regarding whether the legislature has made the defendant’s conduct a crime.
McBoyle v. U.S.A.: petitioner took a stolen airplane over state lines. Tried under the National
Motor Vehicle Act, which applies to cars, not planes; and by the principle of legality, McBoyle
could not be prosecuted without the statute being updated to include cars. (lenity)
Yates v. United States: Commercial fisherman who caught snapper; pursued by policeman and
rid of evidence of his error, then was prosecuted under Sarbanes-Oxley act. Avoided
disproportionate punishment by creating a view of the matter that led to un-clarity so it could
the lenity rule. (proportionality, lenity)
Smith v. United States: The Supreme Court found that a criminal who trades his firearm for
“uses” it “during and in relation to ... [a] drug trafficking crime” within the meaning of §924.
(finding meaning of word plain, rather than using rule of lenity) Scalia dissented because a
common-sense understanding of “uses a firearm” would not include trading a gun.

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K. Vagueness:
Ordinance breaks 14th Amendment / due process if so vague that it fails to convey
to citizens: exactly what conduct is prohibited
to law enforcement: clear guidelines; not arbitrary.
City of Chicago v. Morales: No standard of conduct for citizens to follow. Vague “apparent
purpose” allows arbitrary enforcement. Nothing wrong with innocent loitering. The vague law
encompassed innocent acts. Also, gang members gathering in the street to recruit and
intimidate is
distinct from loitering.
Prof. Roberts’s critique: When criminal codes fail to clearly define the offense, 1) citizens are
clear what is prohibited and 2) police are likely to enforce in an arbitrary and discriminatory
Broad language (like in Morales) invites police abuse because the default preconceived notions
of a
law-abiding white citizen class and a criminal black class give the police enforcement. This
ordinance resulted in targeting youth of color: Police believed most gang members were from
minority groups; and that many, if not most, inner-city minority youth were gang members.
Fair warning: The requirement that a criminal statute define an offense with enough precision
that a reasonable person can know what conduct is prohibited.
L. Culpability:
Moral blameworthiness; the quality of being culpable.
The mental state that must be proved for a defendant to be held liable for a crime.
Except strict liability, criminal culpability under MPC requires proof the defendant “acted
purposefully, knowingly, recklessly or negligently,” as prescribed by the statute, with respect to
material element of the offense. (culpability)
M. Proportionality: A retributivist policy; and 8th Amendment
Must differentiate between serious and minor offenses.
Graham v. Florida: U.S. Sup. Ct. found life sentence without parole for juvenile who did not
commit homicide violates the 8th Am. prohibition against cruel and unusual punishment.
Yates v. United States: Commercial fisherman who caught snapper; pursued by policeman and
rid of evidence of his error, then was prosecuted under Sarbanes-Oxley act. Avoided
disproportionate punishment by creating a view of the matter that led to un-clarity so it could
the lenity rule. (proportionality, lenity)
N. General Principles of Liability for an Act
1. Voluntariness, Omission, Possession
a) Voluntariness: MPC 2.01 requires that the culpable act be voluntary. Involuntary
acts are never blameworthy. Policies:
There is no need to protect people from an involuntary actions that pose no threat to
The law cannot hope to deter involuntary movement or stimulate action that is not
possible for the performer.
Penalizing people for something they truly cannot control or do would produce a very
insecure, unsettled society.
Martin v. State, 1944 – ∆ was intoxicated in his own home, and physically abusive
toward his family. Law at the time did not reach into the home for this. So police took

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him (drunk) into a public space and arrested him when he acted out against them. He was
convicted of public intoxication. Appeals court reversed, saying he could not be guilty of
an action he did not voluntarily take. (voluntariness requirement)
People v. Newton – Police stopped Newton in his car. There was a conflict; Newton was
shot and he also fired at an officer. Newton was unconscious when he shot the officer and
did not remember anything. The court held that evidence of involuntary unconsciousness
must be instructed upon the jury prior to issuing a verdict. (voluntariness requirement)
b) Possession is an act. MPC 2.01
Possession is an act if the possessor
• knowingly procured or received the thing possessed
• or was aware of his control long enough to have gotten rid of it.
c) Omissions: MPC 2.01 keeps status quo, that if statutory law does not specify duty to
act, there is no duty to act.
(1) Special Relationships Creating Duty
- Creator of peril - Some professions (therapists, teachers)
- Parent/child - Husband/wife
- Parent/adult special needs person
(2) Generally No Duty is Found However
Good Samaritan / Bystander: Again, generally no duty to act in the United States.
The 6 states that require good Samaritan action treat it as a misdemeanor. The Kitty
Genovese case where everyone assumed someone else would help.
Failure to Rescue Europe enforces duty to aid person in distress.
Non-punitive solution: Campus initiatives encouraging people to look out for each
other and call for help as needed have been very effective in reducing sexual
State v. Miranda CT 2005 – ∆ considered himself a stepfather to his live-in
girlfriend’s child. He failed to protect the 4-month-old from a fatal beating by the
girlfriend/mother. The CT Sup Ct. found Miranda had no duty to care. The policy
was that assigning a duty would deter future people from taking an interest in
children not their own, lest they be held to account as parents. (omission)
Jones v. United States – Friend with baby stayed with Jones; baby died; Jones could
have afforded to feed it; charged with involuntary manslaughter through failure to
provide; but had no duty to provide. (omission)
Pope v. State – Lady brings home crazy lady with a baby; crazy lady repeatedly
abuses and ultimately kills her baby; woman takes crazy lady to church. Pope had
no legal obligation to the child and appeals court reverses her conviction for
misprision and child abuse. There is generally no duty to report crime (misprision)
and as above no duty to provide. (omission)

2. Mens Rea
a) Common Law: Lack of foresight
Regina v. Cunningham (Eng. 1957): ∆ stole a gas meter, unwittingly causing a gas leak
that was fortunately stopped before anyone got sick or an explosion happened. Can ∆ be

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found guilty maliciously endangering a human life? Trial court says yes, but appellate
court says insufficient mens rea: He had no foresight of the consequence nor intention
that the consequence take place.
Regina v. Faulkner (Eng. 1877): ∆ sailor went to ship hold to steal rum. Lit a match to
see and unwittingly set the ship on fire. Jury was instructed to convict if in the course of
committing another crime, the fire was an unintended result. Appeals court says
insufficient mens rea: Had no foresight of the fire.
b) Negligent Intent

State v. Hazelwood, AL 1997 – Captain of Exxon Valdez prosecuted for Alaska no-
dumping statute. AK Sup. Ct. found that in Alaska, an ordinary negligence standard is

constitutionally sufficient to impose criminal punishment for conduct that society seeks
to deter.
c) MPC Mens Rea
The default minimal culpability is recklessly.
Elonis v. United States – Recklessly is default minimum for criminal culpability, unless
the statute specifies negligently. ∆ posted what occurred to people as threats but he
disclaimed they were not threats. U.S. Sup. Ct. said, “negligence is not sufficient to
support a conviction under Section 875(c).”
MPC 2.01(1) says default minimum required mens rea is reckless unless statute
specifically says otherwise.
(1) purposefully
∆ purposefully engages conduct;
and that conduct is described in the statute. (consciously speeding) or
∆ purposefully produces a result;
and that result is described in the statute. (killing someone) or
∆ knows or hopes an attendant circumstance exists
and that attendant circumstance is described in the statute.
(2) knowingly
∆ knows his conduct is of a certain nature;
and the nature of conduct matches the statute or
∆ knows it is substantially certain his conduct will produce a result;
and that result is described in the statute or
∆ knows an attendant circumstance exists;
and that attendant circumstance is described in the statute.
U.S. v. Jewell: ∆ deliberately avoided confirming whether or not his inference that
he was transporting marijuana in a secret compartment was true. So said he did not
know to DEA agents. Court referenced MPC: a person knowing there is a high
probability is the person knowing. Found his avoiding positive knowledge is a
demonstration of knowing high probability and therefore of knowingness.
“Ostrich instruction:” The requirement of knowledge to establish mens rea is

satisfied by deliberate ignorance. The ∆ knew his conduct was of the drug-
smuggling nature. (Willful ignorance)

(3) recklessly

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∆1) consciously
2) disregards
3) a substantial, unjustifiable risk often question for jury
that the result in the statute will be produced,
or the attendant circumstance in the statute exists.
State v. Muniz 2011. Convinced of his marksmanship, ∆ fired a gun at a chair in
neighbor’s yard, where children were playing. He missed the mark and killed a
child. Convicted of 2 recklessness-grade charges. Casebook underlines that this
situation could have gone either way.
Constable v. Shimmen, 1987 (U.K.). ∆ highly trained martial arts. Demonstrated
skill and self-control by kicking toward plate glass. Owner of glass did not agree to
the demo. Accidentally broke the glass. Found liable: Would you have done this
demo with your child’s head? Found guilty of causing criminal damage. A person
can know his own skill yet also know that it may fail him. This could go either way
under MPC. The jury could perhaps say that the risk was not substantial because it
was so small though it would be difficult to justify it; and the jury could also say its
potential impact – the death of a child – was substantial. Either way, the jury would
probably say the behavior was unjustified. It could be convicted under MPC.
(4) negligently
∆1) should be aware but isn’t
2) and fails to perceive
3) a substantial, unjustifiable risk often question for jury
that the result in the statute will be produced,
or the attendant circumstance in the statute exists.
that the result in the statute will be produced,
or the attendant circumstance in the statute exists.
(5) strict liability
U.S. v. Dotterweich: Drug mislabeling case – Strict liability is allowed to be used in
areas that protect the general public interest.
Morissette v. United States, 342 U.S. 246 (1952):
Facts: Defendant converted spent air force shell casings found on a military target
range into scrap metal and sold them. Convicted of “knowingly converting”
government property. Claimed he didn’t know it was government property that
hadn’t been abandoned (he thought it was abandoned).
Holding: Court said he had to meet mens rea requirements for all elements. Thus,
he had to “know” he was converting government property, which he did not.
Therefore, not culpable.
Significance: Similar to MPC in saying that unless otherwise indicated, mens rea
requirements distribute to all elements. Need intention to constitute criminal act.
Also said in dicta that government can if it wants eliminate criminal intent
requirement in order to protect areas of public interest.
Regina v. Sault Ste. Marie, (Sup. Ct. Canada, 1978): Adds the possibility of an
affirmative defense, that the ∆ took every reasonable precaution.
MPC says no to strict liability if probation or prison is possible, but it’s okay for
non-criminal or monetary penalty situations.

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(6) “Concurrence”
The mens rea and actus reus happen together. For example, vehicular manslaughter
is killing someone while negligently operating a motor vehicle.
Actus reus: Killing someone while operating vehicle.
Mens rea: Negligently operating vehicle.
Both are satisfied.
Another example: Lydia puts down the phone and drives another mile, then the
rear-ending and death happen.
Actus reus: operating motor vehicle and someone dies. Met.
And mens rea is met. But no concurrence of the elements.

3. Ignorance or mistake (MPC 2.04) as to a matter of fact or law is a defense if it negates

any of (5 items): belief, purpose, knowledge, recklessness, negligence.
a) Mistake of Fact can reduce the mens rea. Also a defense if statute says so.
MPC 2.04: In defense, use mistake of fact to dial-down the mens rea.
It’s also a defense if specified in the statute. But forget it if it’s a mistake of fact
regarding age in a statutory rape case.
Statutory Rape
Regina v. Prince: Prince was accused of abducting a 14 year old girl. Thought she was
18 and argued that he had made a reasonable mistake in regards to the age. Despite his
mistake of fact, he was convicted. At the time, this was a morality-driven decision. The
mistake of fact showed the defendant lacked a guilty mens rea. Yet because of the sharp
standard in the community, he was found guilty anyway. Today we consider statutory
rape strict liability.
People v. Olsen: Garcia commanded girl at knifepoint to have sex with Olsen. Olsen did
not know she was so young. (There were other charges in addition to statutory rape.)
Mistake of fact is no defense for statutory rape.
Garnett v. State: Retarded man still convicted for statutory rape despite mistake of fact
regarding age; appeals court says we must rely on sentencing judge to take into account
defendant’s condition.
b) Mistake of Law
MPC 2.04: In defense, use mistake of law to dial-down the mens rea.
It’s also a defense if specified in the statute.
People v. Marrero, 69 NY2d 382 (1987): ∆ brandished a gun at a Manhattan social club,
violating a strict liability statute. The statute had a “peace officer” exemption, which he
utilized as an affirmative defense. ∆ reasonably believed that he qualified for the “peace
officer” status. Appeals court found he was not a peace officer and that his mistake of
law in how he understood the law made no difference.
State v. Varszegi 1993: Defendant thought law permitted him to take material from his
tenant who missed payments. So he did. He was convicted of theft. But appeals court
said that, since his misunderstanding of the law had him not think he was committing
theft, the mens rea for theft was not met. Also, ownership of property is a legal fact.
Lambert v. California, 355 US 225 (1957): Lambert did not know she had to register as a
felon in California. There was no good way to know. It was a mistake of law and L.A.
could not prove that the out-of-state citizen should have known about the obscure statute.
Mistake of law tied here with due process: She had no notice of the statute.

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II. Homicide: Acts and mens rea in context

A. MPC Murder/Homicide
1. MPC Crim. Homicide
Kill another human being with any culpable state of mind (negligence up).
2. MPC Murder is to kill another human being:
a) purposefully:
with the purpose to produce the result of killing another human being
b) or knowingly:
with another purpose
knowing the result of killing another human being would most likely be produced
c) or recklessly + depraved indifference to the value of human life:
substantial, unjustifiable risk
and showing depraved indifference to the value of human life.

3. MPC Manslaughter is to kill another human being:

a) recklessly (but not showing depraved indifference to the value of human life):
substantial, unjustifiable risk.
b) or via any murder BUT with:
extreme mental or emotional disturbance
with a reasonable explanation or excuse (for the disturbance running the show).
Reasonableness of the explanation or excuse is determined from the viewpoint of a
reasonable person in ∆’s situation under circumstances as ∆ believes them to be.
4. MPC Negligent Homicide is any criminal homicide with the negligent mens rea.
B. Common Law
1. Premeditation
a) “Premeditated” is a subcategory of purposeful.
b) Premeditation creates no consistent result; that’s why MPC did away with it.
c) Was premeditation present? Two ways jurisdictions can assess it:
(1) Time between development of intent to kill and actual killing (cooling off time)
State v. Guthrie: Distinguishes between mere intent to kill and intent plus
premeditation. ∆ was oddly concerned about his nose. Coworkers were
roughhousing and one flicked his nose with a towel. ∆ killed coworker by stabbing
in neck with a knife. Did ∆ act purposefully? Rule: For 1st degree murder, ∆ must
have time between development of intent to kill and actual killing to show the

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act was purposeful and not an impulse. Here, absence of premeditation – only intent
was satisfied – prevented full culpability.
State v. Anderson: ∆ killed little girl by many stabs and continued stabbing after she
was dead. Court found lack of purposefulness, saying the stabbing resembled a
sudden explosion of violence, so there was no time to create an intention and then
act from it.
(2) Actions alone show intent
Commonwealth v. Carroll: In this approach, premeditation is any intent to kill, and
eliminates any distinction between first-and second-degree murder in an intentional
killing. ∆ had a gun in bedroom to keep schizoid wife feeling safe. They had a very
long quarrel and then, as she slept, he shot her. She probably was abusing their
children, but that was not recognized by the law at the time. Court ruled his actions
showed he purposefully killed her. His affirmative defense that it was with
extreme mental or emotional disturbance owing to living with a highly abusive and
oppressive wife was not accepted by the court, though we sympathized with him in

C. Provocation/EED – Dials Murder Down to Manslaughter

There are three possible ways to assess provocation/EED
1. The particular circumstances would affect most men the same way (Maher/justified),
Maher v. People = Softer approach than in Girouard, where words alone can be sufficient if
they disclose a fact that would be sufficient if observed directly by ∆ (like adultery).
If an intentional killing is committed under excusing influence of passion or in heat of blood,
produced by reasonable provocation and without time for the blood to cool, and is result of
the same temporary excitement rather than cruelty or recklessness, the murder is reduced to
This was the ∆ who followed π to the woods and then to a bar and shot him, and the trial court
had refused to let him present evidence of the adultery. The ruling was reversed and a new trial
ordered to include the evidence.
2. Killing is not okay but provocation could reduce culpability (Girouard/excused)
Girouard v. State = Dominant common law handling of provocation. Murder is downgraded to
manslaughter if provocation is from the traditional categories such as extreme assault on ∆, or
catching wife in act or adultery. Words alone are rarely sufficient in jurisdictions following this
∆ a military man. Wife of 2 months said she did not love him, had not wanted to marry him,
and threatened to file abuse charges against him thus ruining his military career with a court
martial. ∆ lunged at her and stabbed her to death. Convicted of murder. On appeal, requested
to downgrade to manslaughter. Court declined, saying the provocation from the wife was
insufficient to cause a reasonable man to stab his wife 19 times.
3. Extreme emotional disturbance that would overpower a reasonable person
MPC-compliant EED – in New York an affirmative defense with burden on ∆ that reduces
murder to manslaughter:
First, there must be an extreme emotional disturbance. It need not be full-fledged
insanity; and cannot be contrived or a sham.

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Second, would a reasonable person have been overcome by this extreme emotional
disturbance, or would he have avoided or bypassed it somehow?
Note it is similar to a reasonableness test, and does not require provocation.
People v. Casassa 1980: Casassa dated woman in his building but she wasn’t into it and he was
obsessed. Court held that there was indeed an extreme emotional disturbance on the part of
Casassa; but that a reasonable person would not have given into that disturbance as he did –
and therefore did not reduce from murder to manslaughter.

D. Unintentional Killings
1. Common law has no negligent homicide; requires minimum of wanton or reckless
Commonwealth v. Welansky the ∆ ran a huge nightclub that had many fire safety problems
and burned down killing many employees and patrons. Sentenced to 12-15 years hard labor.
Appeals court upheld verdict, finding ∆’s wanton, reckless disregard of ensuring customers’
safety. Wanton, reckless requires high degree of likelihood of injury to another.
2. MPC Negligent Homicide
Negligent homicide is just that: the killing of another human being with a mens rea of
negligent. It is a problematic practice. How do you show it’s right to convict someone who did
not know their actions were dangerous? And then / even so, how do you determine whether
defendant actually was negligent? 1 case underlines these problems
State v. Williams - ∆s had a sick baby who died, and it turned out the baby had gangrene.
There was a narrow window of opportunity to save the baby. ∆s were Native Americans, living
on a reservation. They truly did not understand the symptoms their baby had; but could see the
treatments were ineffective, and had notice from this to take baby to doctor. They should have
known but did not, and therefore were negligent. Court found statutory manslaughter, an
equivalent to MPC’s negligent homicide, by omission of parental duty.

E. Murder vs. Manslaughter

Roughly-similar categorization for Common Law & MPC
1. Common law: Evaluates how wicked and depraved the killing seemed to be.
Commonwealth v. Malone 1941 – two boys play Russian Roulette at a dairy store lunch
counter. (It was 1946.) Trigger pulled twice; only so many chambers (60% chance of firing).
The boy who was shot died 2 days later. ∆ said he thought he set the gun to not shoot. Court
said ∆ must have reasonably anticipated the death was likely. Appeals court found this proof
that the boy had the “wickedness, hardness of heart, cruelty, recklessness of consequences,
mind regardless of social duty” proving a state or frame of mind of malice. (Common Law)
2. MPC: Evaluates presence of “depraved indifference to the value of human life.”
United States v. Fleming 1984 – ∆ had .315 blood-alcohol and was driving 75-100 mph down
the GW Parkway, sometimes in the wrong lane. Finally wrecked, and killed decedent. Judge
said defendant’s driving, let alone doing it drunk, proved a depraved indifference to the value
of human life. (MPC)
3. Either MPC or Common Law would give the same result above (Malone and Fleming)!
F. Felony Murder
1. Common Law

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a) During commission of a felony, any death(s) that happen, with or without malice
aforethought (strict liability/no mens rea), convert into felony murder.
b) There is no “it was an accident” defense.
c) There are 3 requirements:
(1) but-for
(2) foreseeable
King v. Commonwealth, VA 1988 – ∆ and pilot transporting 500 lbs. of marijuana
by air. Lost in fog, crashed into mountainside. Pilot died. But-for the plane flying
into the mountain, pilot would not have died. Regarding foreseeability, the illegal
cargo did not make the death more foreseeable than it would have been in an
ordinary flight. Thus, both flags not met and felony murder not applicable.
(3) inherently dangerous felony
There are 2 approaches to assessing “inherently dangerous” prong:
(a) Georgia / majority: Is the specific act inherently dangerous?
Hines v. State, GA 2003 – Mistook friend for a turkey during hunting and
killed friend. Convicted of use of a firearm by a convicted felon, and of felony
murder because of death happening in the commission of a felony. But-for
Hines, a convicted felon, hunting while intoxicated, the decedent would not
have been shot. Foreseeable that (looking at specific act) operating of a
firearm when intoxicated and a convicted felon is inherently dangerous.
Therefore felony murder applies.
(b) California / minority assessment: Is the crime in the abstract inherently
People v. Stamp, CA 1969 – Man held at gunpoint had a heart attack and died,

resulting from the upset caused him by being victim of armed robbery. But-
for the upset caused by the armed robbery, the decedent would not have had

the heart attack; and it is foreseeable that in an armed robbery, someone could
die. Court here treated this as felony murder.

2. MPC
Under MPC, it isn’t named/distinguished alone, but the idea is incorporated into
210.2(1), reckless homicide.

G. Death Penalty
1. Policy
a) Looking to due process, criminal procedure has a second trial once a ∆ has been
found guilty of 1st degree murder. In the second trial, a jury determines whether the
∆ should receive death penalty or not. Due process accordingly treats taking away
life with very high care.
b) Retribution: an eye for an eye? Give life for taking life. The worst punishment for the
worst killers.
c) Deterrence: Murder includes premeditation; and a potential murderer can include
the potential to lose his life when he premeditates.

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2. Problems

(1) Two-decade delay, inconsistent implementation detract from the deterrent

effect a swiftly fulfilled death sentence would have.
(2) There is the potential for error.
(3) And potential for bias, giving error.
(a) Gender bias: Tendency to vilify women, especially mothers
(b) Racial biases, which most people do not see that they have and therefore
are not responsible for having.
McKlesky v. Kemp, 1987 – McKlesky uses the Baldus study, showing general
racial bias in sentencing black people versus white people (4.3 times more
likely to sentence black person to death), as proof of a racial problem in his
specific case. But, McKlesky did not show but-for causation that but-for the
racial problem he would not have been sentenced. Race

(4) Use with people lacking culpability

(a) Children
Roper v. Simmons, 2005 – Relied on methodology of Atkins to find new
consensus against executing juvenile offenders. Found objective indicia of a
national consensus in the rejection of the juvie death penalty in substantial
number of states and infrequent use where it was still allowed and a general
trend toward abolishing it. Also cited sociological studies and everyday
common sense knowledge of parents to establish juveniles are a separate
category form adult violent offenders. Lastly, looked to international
standards and saw the U.S. is the only country continuing to give official
sanction to juvie death penalty, which was long ago repudiated by U.K. and
international human rights covenants. Culpability
(b) Intellectually disabled
Atkins v. Virginia, 2002 – Executing people with intellectual disabilities
violates the Eighth Amendment ban on cruel and unusual punishment, but
states can define intellectual disability. Effectively, this means diminished
culpability for a class of offenders when there is national or international
consensus about that group having an intellectual disability. Culpability

III. Harm as Goal: Causation and Inchoate Offenses

A. Causation: Use all three pivot points below
For any crime, go through all three elements – actus reus, mens rea, causation.
[Crime] = [Actus Reus] + [Mens Rea] + [Causation]
Do not use MPC Causation.
Hint: If causation can’t be shown, use accomplice liability.
a) foreseeability
Proximate cause: Was victim’s harm the natural/probable consequence of ∆’s conduct?
The act, in addition to being a but-for cause, must have a close relationship to the
resulting harm.

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People v. Acosta (Cal. Ct. App. 1991) - Acosta led police on a 48-mile chase along
surface streets and freeways, engaging serious driving offenses including running stop
signs and red lights, and driving on the wrong side, causing traffic to scatter or swerve to
avoid colliding with him. Two (of four) helicopters supporting the chase crashed into
each other, killing 3 people aboard. The helicopter disaster had an alternative, and
superseding, proximate cause: the pilots did not follow FAA protocols. Defendant’s
knowledge that helicopters were in pursuit does not establish that he knew his conduct
was a risk to the pilots nor that he acted with a conscious disregard for that risk.
People v. Brady (CA 2005): (Contrasts Acosta above.) ∆ accidentally sparks fire that
ignites his own meth lab. One of 2 fire control planes deviated from normal path and
crashed into other. Both pilots killed. Brady held liable for both deaths. Easy to foresee
possibility of first responders in low flying planes doing fairly aerobatic maneuvers to put
out fire, accidentally crashing.
b) zone of danger
Intervening cause: Might be natural, like passage of time, or third party. If ∆ chases
victim with gun and victim runs into street and gets hit by car, the ∆ is held responsible
for causing victim to run in front of the car.
Transferred intent: ∆ intends to harm one person, but accidentally harms another.
People v. Arzon (NY 1978) – Arzon (sofa fire plus 2nd unrelated fire, and fireman dying
of smoke inhalation, and hobo drug user squatting in building who caused a fire) shows
an incident that was foreseeable and within the zone of danger. (It is foreseeable a person
could die of smoke inhalation, and that a first-responder would enter the zone of danger.
Also, policy is to protect first responders and it is foreseeable that a first responder will
be impacted by arson.)
c) Policy toward ∆ informs foreseeability and zone of danger
Policy colors whether courts find causation or not.
The factual cause, or but-for cause, is not a factor.
People v. Warner-Lambert (NY 1980) – Bubble gum maker was using a dangerous
explosive chemical and had been warned, but was also bringing tax revenue to broke
NYC. Explosion happened, totally foreseeable, they had been warned, all damages
definitely within zone of danger, yet city did not hold liable, informed by policy to
protect a tax paying company. Great example of how policy colors the finding of
causation: This was totally foreseeable. They were warned. But policy not to hold
corporation accountable lest the bankrupt NYC lose tax money.
Stephenson: Major KKK guy, sexually abused woman and then she began a process of
committing suicide, which she continued for several weeks after she escaped
Stephenson’s control. In a timeline way, this removes her from the zone of danger; and it
is not so foreseeable the impact would continue. Generally once out of the plaintiff’s
control, a victim is expected to be reasonable again. Realistically, that she would continue
the suicide effort as she did was not foreseeable. But Stephenson was held liable perhaps
as a policy matter, as the state needed to crack down on the KKK. Policy again: State
wanted to crack down on KKK. Hold Stephenson liable for woman’s action; she
committed suicide; as she had been under Stephenson’s control; but generally once out of
∆’s control, π is on her own.

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B. Attempt
The result or harm is missing
Actus reus = substantial step to commit the crime
Mens rea = purpose or “specific intent” to commit the crime,
or knowingness the result will likely occur

Attempt and solicitation (next section) can be charged separately, like count 1 and count 2.
Note: No such thing as attempted felony murder.
NY and most others grade down once: ex, attempted 1st degree murder punished as 2nd
1. Attempt requires purpose (or “specific intent”) to produce the result, even if recklessness
or lesser mens rea would suffice for conviction of original offense.
Thacker v. Commonwealth, VA 1922 – A woman refused to admit a drunk man into her tent
one night. Angry, he walked down the road, turned, and shot at the light shining through the
tent. The bullet missed the woman. Had it hit woman, he could have been convicted of murder.
Court ruled there was no intent to kill, so Thacker could not be convicted of attempt to murder.
Here, the intent of the crime is not met since he shot at a light over the tent.
Smallwood v. State, MD 1996 – Smallwood committed rapes, wore no condom, knew he was
HIV+. State produced no evidence HIV causes death the way a firearm causes death; so court
made no inference ∆ intended to cause death. If he had even said, “I intend to kill you by
giving HIV,” that would have been sufficient proof. In absence of that proof, court finds he did
not intend to kill. Conviction for attempted murder and assault with intent to murder reversed.
2. Attempt is more than preparation
How does court know whether this is a real attempt and it’s not just punishing speech or
thought? Approaches to distinguishing attempt vs. preparation:
a) Dangerous proximity: ∆ needs to have done all that he intended and could do for the
purpose of effectuating his criminal purpose.
Abandonment: Stopping short of completing the crime, for any reason, gives ∆ locus
penitentiae, “opportunity to repent,” and keeps ∆ in the realm of preparation.
State v. Rizzo, NY 1927 – ∆s not guilty of attempted robbery because they were unable
to locate the person whom they intended to rob. They intended to rob the payroll man, but
were not able to locate him before they were arrested. “There must be dangerous
proximity to success,” wrote Justice Holmes in Hyde v. United States. Court ∆s not guilty
because they were stopped too far short of completing the crime.
b) The “last step” is an opportunity for ∆ to change mind.
State v. Bell, MA 2009 – ∆ follows undercover officer out of parking lot toward second
destination to be introduced to 4-year-old child. Does not pay money for child. Arrested
for soliciting prostitution (which he had completed) and attempted rape (which was
impossible since he had not yet met child which was fictitious). Court found he was not
liable for attempted rape, since there was not yet dangerous proximity to success.
c) Unequivocal act, though this can be a problem with substantial step analysis:
State v. McQuirter AL 1953 – McQuirter followed a woman and was convicted of
attempted rape. He was black, she was white. Jury was permitted to consider racial
differences as part of evidence in its consideration and found guilty. Weird case.
d) Substantial Step

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People v. Thomas, CO 1986 – Def. shot at possible fleeing rapist. Two shots hit man. ∆
claimed one shot accidental and others were waring. Convicted of attempted reckless
manslaughter. Statute said, criminal attempt is met if mens rea of original offense is met
plus a substantial act is taken toward fulfilling it.

C. Solicitation
Solicitation and attempt (above) can be charged separately, like count 1 and count 2.
1. Old Common Law Approach
Acts not leading directly or proximately to consummation of a crime are not an attempt.
People v. Davis Mo. 1928 – Davis emphasizes whether crime could have happened, over the
mens rea. Davis introduced to Dill, a policeman pretending to be ex-con hit man; Davis pays
Dill $600 to kill his girlfriend’s husband; they set the plan; Dill arrests Davis.
2. MPC Solicitation Elements:
a) Communicate or attempt to communicate
b) Command, request, encouragement, or complicity
c) For crime or attempted crime.
Church 1991, U.S. Military Court – An attempt is only slightly less culpable than a successful
crime. Church hires, pays and helps plan the assassination of his wife by a hit man and
completes the payment after hit man tells him the act is done and shows him a photo of dead
wife. Assassin was undercover policeman. Court acknowledges assassin had no intention. But
Church had intent and took all actions to have the crime take place. Court found Church guilty.
Trouble with this is if ∆ finds out before the deed is done that it’s police, he can take other
steps to accomplish the goal. Need to protect the victim.
Jaffe, NY 1906 – Jaffe offered to buy fabric that he thought was stolen when in fact the rightful
owner had it again. Did Jaffe attempt to commit a crime? No, if completed, the defendant’s act
would not have been a crime since the fabric was no longer stolen; therefore there was no
attempted crime.
3. Notes
a) If ∆ thinks it’s a crime, and it’s actually not, then it is not solicitation.
b) The hirer (solicitation) of a hit man is more culpable for the murder. Historically not
true, today is.

D. Impossibility – Only use MPC Approach:

1. Rule: The factual basis of the attempted crime is:
1- defendant’s mens rea inferred as if the facts were as the defendant believed and
2- the actions defendant took.
2. Ignorance of the law is no excuse.
Under MPC we look a mens rea.
If ∆ doesn’t think what he did is a crime, but it is, he gets punished.
MPC: If mens rea is there and actions were taken, even if impossible for those actions to
produce the intended result, then culpability is there.

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Dlugash, NY 1977 – MPC does away with factual and legal impossibility; looks at mens rea.
Defendant shot mike Geller several times in the face after someone else had shot Geller twice.
Trial court instructed jury: Defendant either murdered or attempted to murder Geller. Jury
found defendant guilty of murder. In fact, Geller might or might not have been dead when
defendant shot him. On appeal, appeals court said State did not prove Geller was still alive and
defendant believed Geller was dead. So mens rea and actus reus for attempted murder were
there. Result intended must be a crime. Trial jury convicted of murder; thus believed/found
defendant intended to kill a living human being; and believed Geller was alive. Court of
Appeals says appellate division should have adjusted the trial court’s finding to attempted
murder, since it is impossible to kill a dead person.
IV. Group Crime
inchoate = just begun; anticipating further criminal act
A. Accomplice Liability
Hint: Use accomplice liability if causation can’t be shown.
1. MPC 2.06: A person is guilty of an offense that she did not personally commit if she is an
accomplice of another person in the commission of the offense.
Under MPC, government must prove two things: Accomplice Liability:
1. The ∆ took some act in furtherance of the crime and [conduct]
2. ∆ intended by that act to aid the commission of the entire crime. [intent]
Rosemond v. U.S.A. 2014 – One of 3 drug dealers fired a gun when a buyer attempted to take
a pound of marijuana without paying. Rosemond charged with “using or carrying a firearm in
connection with a drug trafficking crime.” But says he had no idea there was a gun and no
opportunity to choose whether he wanted to participate in an armed offense.
ROSEMOND ON CONDUCT. Weak. ∆ must aid some part of the crime, but is not required
to facilitate the entire crime if it has multiple parts.
ROSEMOND ON INTENT. Strong. ∆ must intend to aid the entire crime, not just some part
of it. Here, ∆ would need to know a gun was being brought to intend to support the entire

2. Aid given need not be of “but-for” caliber. Rather, any aid making the actor’s job easier:
State v. Talley 1894 – Talley aided assassins by preventing the victim from receiving a
warning they were coming after him.
distribute If the telegraph person had sent the message anyway, Talley would be guilty of
If the assassin had totally given up committing the crime, he would be off the hook.
But Talley had already committed his crime of interfering with the warning.

3. Remember: We do not punish omissions, so an omission does not count as furthering a

Scenario of bar rape: but-for the crowd cheering, would the crime have happened? Moral
culpability requires encouraging, rather than merely failing to report.

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B. Conspiracy
Policy: Penalize people who join conspiracies and reward those who cooperate, to undermine
trust level and thus render conspiracies unstable.
RICO has tools including high penalties and asset forfeiture to use for organized crime, fraud,
corruption, and gang activity.
Actus reus = made an agreement to cooperate
Mens rea = purposeful, not just knowing
How to prove it: 1) ∆ has a stake in the conspiracy 2) ∆ is providing his service only for the illegal
purpose 3) ∆’s business gets lots of business from the conspiracy.
Conspiracy is about an agreement; requires purposeful, not just knowing for mens rea:
Lauria – sting operation on phone answering service that knowingly served prostitutes. Owner
said he didn’t mind them being prostitutes. But purposefulness – more than knowingness – is
Need to prove conspirators actually intend to do what they are discussing doing;
and concern for punishing speech and fantasy agreements:
Valle – words were online. 1 in NJ, 1 in Pakistan, 1 in England. Described deeply unsavory
acts against women. Valle was a policeman, also. Lost his privilege to serve, but not guilty of a
criminal offense.
1. Pinkerton vicarious liability: A conspirator can be held responsible for crimes
committed by any co-conspirator. Brothers conspired in IRS tax fraud. One did most of
the work; the other couldn’t because he was in jail. The jailed brother was held liable for
everything that his brother did since he’d agreed to be in the conspiracy.
Bridges: A very good Pinkerton case.
Alvarez: Killed policeman in furtherance of a conspiracy to deal drugs.
2. No kickback/payment? No conspiracy
Gladstone 1970 – Gladstone told someone where to find marijuana. It was a communication
only. Court held Gladsone was not an accomplice to the illegal transaction because he did not
take action to aid in the sale. There was no kickback or purpose for Gladstone and accordingly
no conspiracy.
Wilcox v. Jeffery 1951 – The odd London concert case that breaks the rule of requiring
kickback/payment. Note that in Gladstone there was a payment, but no payment here. Also, no
but-for here. Hawkins was forbidden by statute to take employment in UK, but gave a concert
there. Jeffery bought a ticket, attended, cheered, wrote article about the concert for a jazz
paper. Jeffery was found guilty of encouraging an illegal act.
Dept. Store Theft - ∆ holds baby and actor promises to in some way remunerate her for her
trouble next time. Thus, there’s a reward to ∆ and she’s part of the conspiracy to rob the store.
Escort service phone service doesn’t meet conspiracy because he merely let them use his
service and did not gain have a stake in their work, provide his services only for illegal
purpose, or get lots of his business from the conspiracy.

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V. Defenses
A. Justification: The act was the right thing to do!
[Reasonableness] + [Imminence of Danger]
MPC: Honest but mistaken belief in need to kill dials murder down to negligent homicide
1. Battered Woman Syndrome:
leverages the reasonableness and imminence of danger the woman perceives
State v. Kelly – Long history of beatings by husband. He attacks her once more and she fears
he will hurt their daughter. She stabs him with scissors. Reasonably perceived imminent
2. Duty to retreat:
Abbott – Strange scenario where Abbott and neighbor’s aggressive son fight, then son’s family
members show up with knives and Abbott fends them off. Did Abbott know he could retreat
with full safety? Not, so he was fully justified in fighting.
3. Castle Doctrine
Ceballos set a spring gun to protect his home because he noticed some things missing from his
storage garage, where he sometimes slept. But the automated deadly force was improper,
especially given that it was a couple of teenage kids.
Hattori and friend went to wrong house and could not communicate nor receive
communication because of a Japanese-English language barrier. Occupant came out of the
house with a large, laser-pointer gun and shot Hattori. Hattori was gesturing, trying to ask for
directions, and did not see the gun in the dark. The jury found ∆ not guilty, though the
Louisiana statute protecting him was actually overstepping the boundary of the Castle
4. Stand Your Ground
Goetz: The subway vigilante. The police aren’t taking care of us, and I have been in this
situation before. I feared for my safety. The look in their eyes. I had to protect myself.
Note Shooting toward someone, no matter where on their person, is always deadly force.
5. Lesser of Evils / Necessity
a) MPC §3.02
(Mountain climber can enter a house; ambulance can go through a red light.)
A person’s conduct is justified under a choice of evils defense if:
• He believes that his conduct is necessary to avoid harm to himself or another
• The harm to be avoided by his conduct is greater than the sought to be avoided by the
law prohibiting the conduct
• No legislative intent to exclude the conduct in such circumstances plainly exists
• ∆ is not at fault in creating the situation
United States v. Schoon, 1992 – Civil disobedience, an act disrupting government
intended to indirectly cause government to change a law or policy, is not protected under
necessity, even when the act of disobedience harm is less than that sought to be changed.
People v. Unger, IL 1977 – Youth offender Unger was repeatedly assaulted in a special
juvenile honor farm prison, so he left. The court found him not culpable for escaping.

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Comm. v. Leno, MA 1993 – Important to fight HIV transmission through needles;
however, this does not open defense of necessity for breaking statute prohibiting needle
b) Common Law
Also called the “choice of evils” defense, where an actor is invoked with a dilemma
where as a result of some natural force or condition, they must choose between violating
a relatively minor offense, or on the other hand, suffering harm to themselves. Factors:
1. The actor must be faced with clear and imminent danger
2. Actor must expect, as a reasonable person, that this action will be effective in
abating the danger he seeks to avoid
3. There must be no effective legal way to avert the harm
4. The harm the defendant will cause by violating the law must be less than the
harm he seeks to avoid
5. Lawmakers must not have previously anticipated the choice of evils and
determined the balance to be struck between “competing values” in a manner in
conflict with the defendant’s choice
6. The defendant must come to the situation with clean hands

B. Excuses: The act was wrong, but...

• ∆ offers defense that breaking law could be excused because of duress (threat).
• Would reasonable person have given way to the same duress?
Battered woman syndrome not always an excuse for conspiracy in drug dealing - “I knew he
beat me if I didn’t help.” The policy is that people simply must remove themselves from this
kind of
relationship or situation. Sure, acted under duress. But reasonable person would not give way
duress to deal drugs.
Toscano – patient threatened violence against doctor if doctor did not participate in insurance
scheme. Excuse was accepted.
Murder: Duress is never a defense. Reasonable person would never kill under duress.
Prison break: Was there an imminent threat of rape, death or assault? (Unger, listed above.)