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Justifications for Punishment:

1. General Deterrence
a. Critiques: Over Inclusiveness (torturing terrorists, punishing scapegoat to stop mob)
2. Specific Deterrence: We punish to prevent crimes by actor - 2 Sub sets
a. Incapacitation: You cant do it while incarcerated - Regret Cost if they repeat after
release. Involuntary Civil Commitment for risky actors not in the right mind.
b. Intimidation: You will be afraid to do it again + rehabilitation
3. Limits of deterrence – sometimes we don’t want to punish people – like heat of passion
killing, also some people are hard to deter, like drunk.
4. Negative Retribution – only punish if we have a good faith belief that he did the act +
proportionality requirement
5. Positive Retribution: This will realign society – by punishing the wrongdoers

Criminal Law – Now all statute because 1) we want legislature to debate it 2) notice.
Notice: 1) Bad man 2) plan of action 3) know what your being charged with
Police can only arrest with Probable Cause – “substantial chance that the suspect committed the
offense under investigation.”

Burdens of proof:
1) Preponderance of the evidence – Tort standard –more likely than not - More than 50 %
2) Clear and convincing evidence –but you have a clear and convincing case – (he says about
>66.6%) Involuntary civil commitment, Rape, Fraud…
3) BARD – he says >95%. A reasonable doubt acquits. If you have a whacko doubt – than
The SC - In Re Winship ruled that the due process clause requires guilt beyond a reasonable doubt
to convict. In our society it is thought better to let the guilty free then to imprison the innocent.
BARD standard was said to mean “near certitude” but cannot be quantified. Jury instructions must
tread carefully when describing this standard.

Owens v. State: of “a conviction upon circumstantial evidence alone is not to be sustained unless
the circumstances are inconsistent with any reasonable hypothesis of innocence.” The appellate
standard of proof is “a reasonable trier of fact could have found” – Sufficiency of the evidence.
.It sounds like a preponderance standard, but this is the standard on appeal – is it rational – aka

Jury Nullification:
1) it shouldn’t be done – sep of powers, jury decides what law is – is improper
2) For nullification – the jury works as a interstitial device that will account for unexpected
circumstances and to make corrections as needed, just as a legislature would if necc.

Trial judge motion for directed verdict for acquittal must turn on: weather a “reasonable mind might
fairly conclude guilt beyond a reasonable doubt.” If he concluded that there must be such a doubt,
he must grant the motion for acquittal.

In an appeals trial, all factual decisions must be decided by the trier of fact: the jury below, (they are
best suited for deciding facts) if there is a uncertainty, than assume it in the favor of the prosecution
and defer to that resolution.
Keeler v. Superior Court: Concepts:
• Courts Reasoning for no expansion to include viable fetus:
o Jurisdictional – separation of power – leave to legislature
o Constitutional – no ex post facto laws
o Look back in time – Theory of legitimacy – the law is what it was intended to be
• Other reasons:
o Due Process violation for retrospective judicial reinterpretations
o Notice
• Dissent – believes he is being faithful, just translates “baby must be born alive” to today’s
modern technology concept of “viable fetus”- Dissent & majority argue about LEVEL OF
• Concepts in statutory interpretation:
o Level of generality
o Laws against vagueness – very hard to win
o Rule of Lenity – If statutory interpretation is close – go in favor of Δ – don’t want to
imprison by accident. Invoked a lot but applied a little.
o Look back in time – controversial (fuzziness, deadhand vs. theory of legitimacy)
o Texualist,
o Due process – don’t change the meaning + Constitutional no ex post facto
o Notice


• General Rule – No MOL even from your council even if reasonable (except NJ)
• People v. Marrero – Trial court allows MOL, appellate division says “any doesn’t mean
any” This court says we do not allow a reasonable MOL - compares it to MPC – unless
there was an official interpretation that was reasonably relied upon. Also a policy argument
– that this would open the floodgates for MOL defenses.
• MPC 2.04.3.b - (b) he acts in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous, contained in (i) a statute or other
enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant
of permission; or (iv) an official interpretation of the public officer or body charged by law
with responsibility for the interpretation, administration or enforcement of the law defining
the offense. You cant use (i) because its too narrow and just another way to say no ex post
facto – so you left with ii, iii & iv – so only official interpretation can be relied upon
• Dissent says this reasoning is very questionable:
o Reasonable reliance on an official statement is obviously a good defense
o The MPC was adopted in portions and not here
o The policy argument is no good because NJ doesn’t have massive MOL litigation
and once we interpret a statute we will never have another mistake on that
• Also policy discussion on MOL
o MOL should be allowed:
 Notice
 Good faith person should not be punished – not culpable
o Should not be allowed
 Bad man will use this as excuse
 This will encourage people to look into the law

Actus Reus
Voluntary act or culpable omission.

Voluntary Act Rules: “Product of Effort or determination”

• We don’t punish mere thoughts – although sometimes mere speech (purgery, conspiracy)
• We don’t convict if a crime was perfected by an involuntary act. Martin v. State, (charged
with drunk in a public place after being put in a police car drunk and driven on a highway).
• 2.01.1 Must be Act or Omission – 2.01.2 voluntary excludes seizure, convulsion or (d) a
bodily movement that otherwise is not a product of the effort or determination of the actor,
either conscious or habitual – No retribution or deterrence. Use V-Chip test.
• Must include some VA – but could also include some IVA – we expand the time line. If her
got in a car knowing he could have a seizure, than the VA is the driving. We will also be
looking at the MR for the time of the VA – Synchronicity of the elements.
• We only present issues of involuntary act or spasm to the jury, if there is sufficient evidence
in the record to support it. State v. Utter (conditioned response caused stabbing – This was a
case in chief defense.)
o This defense of IVA differs from Gun to Head or Dudley type case which is
affirmative defense, like duress or necessity
o Stung by bees and jerk the car – immediate response is like a spasm.
o Grabbing someone to stop a fall – that’s a conscious descision, fact that’s it’s a nano
second doesn’t matter
• He prefers IVA as opposed to insanity because 1) no commitment 2) No shift of burden

Omission Rules: “Legal Duty imposed by law or contract”

• We cant criminalize every omission because 1) impinges on freedom 2) no MR
• Omission Must be Legal Duty Imposed By Law or Contract. People v. Beardsley
• Five Types:
o By statute
o Contractual relationship
o Status relationship
o Voluntarily assumed care and so secluded so as to preclude others from helping
(drowning person and you scream ill save him – cant abandon midstream)
o You create risk of harm – like run over a pedestrian

Material Elements of an Offense: MPC 1.13.9

• Conduct
• AC
• Result

Mens Rea MPC 2.02

Purposely: 2.02.2A
• Conscious Object to do conduct
• Conscious Object to cause result
• Aware or Believes AC exist (MOF would get him acquitted – marijuana believed was
o Ordinary presumption – ONE INTENDS THE NATURAL & PROBABLE
CONSEQUENSES OF THEIR ACTIONS – inferential reasoning used to determine
MR, People v. Conley
Knowingly: 2.02.2B
• Aware that Conduct of that nature:
• Aware of attendant Circumstances
• Knowledge of a AC is satisfied by a high probability of the existence of the AC. 2.02.7
• Practically certain result will occur
o Ordinary presumption – ONE INTENDS THE NATURAL & PROBABLE
CONSEQUENSES OF THEIR ACTIONS– inferential reasoning used to determine
MR, People v. Conley
Recklessly: 2.02.2C
• Conscious disregard of a substantial risk (Difference between Rec & know which is
practically certain, here only sub risk)
• Circumstances known to him
• Gross deviation from the norm (starts as a subjective – end with objective)
Negligently: = Unreasonable 2.02.2D
• Fails to perceive of a substantial risk
• Circumstances known to him
• Gross deviation from the norm (purely objective – we impute that he should have had

Other Rules:
• If he claims NEG – we can get him on REC if the jury believes he entertained the risk
o If actor is Optimistic – that means they entertained the risk.
• The risk must be substantial – and they must know its substantial
• Talk about salt over shoulder Hypo – 1) She believes it will work 2) Shes not sure hes home
3) she’s optimistic it will work
• If No MR – If plain intention for SL appears – if not 2.02.3 – RECKLESSNESS FLOOR,
Default rule.
• 2.02.4MR will apply to all elements of an offence unless contrary purpose plainly appears,
or grammar makes it not correct to be read together – there if no contrary purpose plainly
appears we impute REC floor. Ex. “Purp import contraband, causing death”
• Felony to KNOW posses 625 mg of an hallucinogen. Court said know about 526 too
because its an AC – legislature changed it to not be dispositive.
• Proving a higher level than required will work 2.02.5
• You don’t need to understand an offense to be guilty.
• Willful = Knowingly 2.02.8
• Bomb on boat with intent to kill one – MPC 1 intent and rest KNOW, nonMPC – rachet all
up to INTENT.
• Situation known to him – Most things we will let in – cant get in too idiosyncratic.
• Historically nonMPC culpability, MPC – transition to elemental – no practical difference.
o Malice cant simply be defined as wickedness – A correct definition is imperative.
Regina v. Cunningham, (represents shift to elemental regime)

Transferred Intent 2.03.2 (MPC – PURP, nonMPC – PURP includes know)

• Mosk says mischiefess concept – its logical – killing a person is what’s outlawed
• If you shoot to kill X and hit X and Y – MPC 1 count purp and 1 count something else,
nonMPC all purp.
• Single act (or Formation) limitation. Multiple formations = multiple charges.
• 2.03.2 Clause 2 – you could get transferred intent from more serious to less serious, but
within one category (Person or property – not clear from language of code to commentaries
– Queen v. Pembelton – threw rock at person and broke a window).

Specific Intent: Only nonMPC: Some additional intent.

Willful Blindness, 2.02.7 Knowledge satisfied by awareness of a high probability. (2nd bite at
awareness of AC) State v. Nations.
• State v. Nations, MPC has WB provision – were not sure if that case qualifies as WB. May
be able to get nations on PURP – because that includes believes in the AC.
• Some nonMPC have Deliberate avoidance – this is def. less than awareness of a high
probability and may be classifies as a type of REC.
• Order of awareness: aware of AC (know)  aware of HP of AC (know WB)  REC (may
include Deliberate avoidance in nonMPC world).
dealing friend. (about rec. – he may not have even disregarded substantial risk – you only
form MR once and he firmly believes.)

Strict Liability – Only show AR – no MR. (AR, Caus & defense discussions still available.)
Aspects of SL:
• Very common by public welfare offenses & Usually light punishment cases
• Policy discussion – is it good to have this (no deterrent value – causes overdetterence,
economic perspective – social costs, maybe he will claim he didn’t know – willful blindness
– avoidance etc....)
• MPC 2.05.1.b Must clearly state Strict Liability. (two reasons 1) descriptive – to clearly tell
us 2) prescriptive – to make legislature think hard about SL).
• nonMPC: 2 ways
o If Malim In Se – apply clear purpose rule
o If Malim Prohibitum (PUBLIC WELFARE) They will look at 3 main factors:
 Does it regulate s/t dangerous to the public
• particularly in trade
• particularly if MR is hard to tell on a case by case basis
 Standard of Care – is this reasonable to expect of people
 Penalty is light
o Tough cases will can be argued back and forth.
o Staples v. US – Majority says guns are not inherently dangerous like grenades so no
clear notice to public regarding SL and the penalty is high so no SL. Dissent says
they are dangerous therefore it is a public welfare offense and the owner has a
heightened duty, and it’s a regulatory offense – registration.
• 2 cases where you need to prove MR only for underlying act: 1) FM – only prove MR for
felony 2) Statutory rape – prove MR for intercourse not for age.
• Constitutional Innocence Principal – if each AR is legal by itself, you cant have SL – like

Mistake of Fact: If he has a mistake of fact that negative p/k/r/n than we cant convict him on that.
(Case in Chief Defense) People v. Navarro.
2 second bites:
• 2.04.2 We can convict him of the offence if the way he imagined it was also a crime. Second
sentence we reduce the grade and degree to what he believed it to be – so he will always get
the lower of the two. USE THIS EXAMPLE: “Breaking and entering the dwelling house of
another, with intent to steal”
• Attempts – under not covered portion 5.01.a.

Causation: Prosecution must prove both ACT & PROX.

Overview: Prove ACT and that it was reasonably foreseeable and there was no sufficiently culpable
intervening act. NOTE: Causation questions are independent from MR.

FOR Δ AR? (if they are part of the story – ACT) (accelerators are ACT)
Always answer by saying: BF Δ AR, _____ would not have happened when it did.

PC: 2 questions to ask if he is an ACT:

1. Should the Δ have known this kind of thing could happen at the time of his AR? (Was it
reasonable foreseeable) – We ask was it foreseeable that he would be injured with this type
of injury – find right level of generality based on case.
2. Was there a sufficiently culpable intervening act?
a. Act of Π
b. Act of 3rd party (General rule: 3rd party action P/k we cut off, N we don’t and R
sometimes we cut off.) A legally culpable omission will cut off if he has the right
cutting off MR. A mere morally culpable omission wont cut off. (USE HYPO of
Mother neg fails to save baby) Kibbe v. Henderson.
c. Force of nature
• A intentional action will broaden the range of action that cant cut off – even if the manor is
different. But free deliberate & informed human intervention will cut off all including a
intentional act.
• Position of apparent safety breaks chain.
• Pull the plug in hospital won’t cut chain - The attacker takes a victim with all beliefs
• Suicide will cut chain unless 210.5.1 Its committed with force, duress or deception.
• Substantial factor test – when neither are truly necessary (simultaneous killing).
• Moral Luck Doctrine
Homicide: 210.2.1 Criminal Homicide - if P/K/R/N cause the death of another.

Intentional Killings:
• Non MPC world 3 different types of PURP/INTENT homicide 1DM, 2DM and VMS.
o 1DM: PURP or INTENT + PREMED (quantity of time) and DELIB (quality of
time) “Mulled Over.”
o VMS: PURP or INTENT + heat of passion mitigation – provocation
o 2DM: PURP or INTENT w/o PREMED or DELIB (prosecution must prove both for
1DM) and without MITIGATION. “Spontaneous”

• MPC World: No 2DM.

o 1DM: PURP/KNO cause the death of another without EED Mitigation. 210.2.1A
o VMS: PURP/KNO cause the death of another with EED Mitigation 210.3.1B
Murder Rules:
 We want a judge to give an instruction that sets P & D apart  time + deliberation. (Moran
instructions) State v. Guthrie.
 He can get an instruction of lesser included offenses.
 We can use several factors to infer P&D including but not limited to (State v. Forrest) :
o Provocation
o Statements before and after
o Ill will between parties
o Dealing of lethal blows after (this may or may not show – 1 shot may prove P&D)
o Brutal manor
 Honorable man may still get a higher sentence – planners are more blameworthy and easier
to deter (Forest killing ill father – Midgett beating son). We could get rid of distinctions and
make it all sentencing.

Manslaughter Rules:

 nonMPC: Heat of Passion, MPC: Extreme Emotional Disturbance.

 Less blameworthy: 1) less retribution, society understands he may lose it 2) less deterrence
3) provocation – needlessly provoked (argument over blame the victim) 4) Maybe we should
scrap this all because he should take responsibilities for PURP vs. Almost insanity
 Test Point: Deal with EED & SD separately.
 nonMPC: Requires actual & reasonable – provocation that would inflame reasonable man.
o Mere words are insufficient: no subjective items: only 5 categories do we
understand: (Girouadr v. State)
 spousal infidelity
 mutual combat
 assault & battery
 injury to Δ relative
 death caused by resisting illegal arrest
o No mitigation if he had “reasonable time to cool.”
o No transferred VMS mitigation (“kills by standard who gets in his way”)
 MPC: Only requires actual + deserving of sympathy (type of reasonable).
o Could be over period of time
o Anything could potentially be provocation – we send it all to jury if there is enough
in record.
o Reasonable = understandable and deserving of sympathy.
o 4 questions for EED Mitigation
 Was he acting under influence of emotional disturbance (rule out lying)?
 Was the disturbance extreme?
 What is the explanation of excuse Δ offered for EED?
 Was that explanation reasonable from the viewpoint of Δ? (not was the
killing reasonable – once we establish a good EED – we will mitigate all
o 210.3.1.b: viewpoint of a person in actors situation under the circumstances as he
believes them to be:
 No mistake problem – will transfer (once EED est. – anything goes) Unless
completely off base.
 Will allow misplaced aggression.
 Still objective test
• Situation is broad enough for history, background mental state, shock
but not to include politics/ moral, idiosyncratic or self control issues
except age and gender - (two theories of equality – flat rule vs.
Jersey v. Holly)

Unintentional Killings:
 Depraved Heart Murder (reckless murder)
 IVM (reckless manslaughter)

Reckless Killing: Same for MPC & nonMPC. MPC CODE 210.2.1B


o Must prove Reckless - conscious disregard of a substantial risk – gross deviation –
that someone will die.
 Aware of risk / actually was risk
 Believed it was substantial / actually was substantial
o Increased Risk: RECKLESSNESS + HIGH PROBABILITY of death (more than just
substantial risk.
o Decreased Value of the Act: RECKLESSNESS + WONTON DISREGARD OF
VALUE OF HUMAN LIFE (like Russian roulette – fudging on substantiality –
could be only 20% risk).
 Remember you can mitigate any murder on EED – including RM and FM.
 nonMPC includes intent to cause grievous bodily harm and accidentally kills PURP. MPC
would probably view as RECK.
 Responsible for acts of animals – Berry v. Superior Court.
 TEST POINT – argue both broad and narrow view of what the actor should have known for
negligence like parents with ill baby. State v. Williams.

Felony Murder: Felony + Death = Murder (must prove MR for felony but not for murder) Even
supercareful people.
All states treat as a conclusive presumption (i.e. rule of law) except NH – rebuttable presumption.
MAJOR POLICY DISCUSSION: General deterrence vs. no specific deterrence, punishment
doesn’t fit crime etc…. MPC CODE 210.2.1B

Limitations: nonMPC – 1 - 4, MPC only 3&4

1. Inherently dangerous felony limitation (“IDF”)
a. FM only applied where its inherently dangerous – most notice here
b. Sometimes jurisdictions will look at face of the statute – some will look at
application – was it dangerous as committed.
2. Anti Merger (with independent felonious purpose exception “ifp”)
a. Some jurisdictions exclude all assaultive on human body felonies so as not to bump
all lower homicides into 1DM.
b. Some on face, some on application distinction.
c. Jurisdictions that apply 1 & 2 only IFP’s are left (crimes with 1part inherently
dangerous and 1 part not)
i. Armed robbery: Taking property w/o consent with weapon (weapon is both
dangerous [FM] and assaultive [no FM] but taking property is neither so FM.
ii. Forcible Rape: Dangerous [FM], assaultive [no FM] but IFP of non-
consensual intercourse (taking sexual liberty) so FM.
3. Res Gestae (all jurisdictions)
a. If death is too remote – no FM, must be one transaction (but in cop car could still be
one transaction – until felony is over)
4. Who Shot Who (all jurisdictions will have view on this) State v. Sophophone
i. D1 D2 and D1 kills V
ii. D1 D2 and D1 kills D2
iii. D1 D2 and Cop kills V
iv. D1 D2 and cop kills D2
b. Majority rule: D’s kill anybody (top 2) AGNECY Approach
c. Minority rule: anyone kills anyone (all) PROXIMATE CAUSE approach
d. NJ: anyone kills anyone other the Δ’s (1 & 3)

Rape: Only nonMPC world here.

For prosecution to prevail:
a. Sexual intercourse
b. Force, threat of force or resistance overcome by force
c. Express No
d. Minorities 1) MTS – only non consent (no force requirement) 2) NJ: absence of clear yes

Why is rape prohibited: 1) Violent crime 2) like battery 3) Takes sexual autonomy
MOF regarding consent: 3 ways we could look at his testimony:
1. Pure subjective – honest mistake acquits (even unreasonable) – No jurisdiction
2. Objective test – honest mistake acquits if reasonable – majority of jurisdictions
3. Strict Liability – no MOF, if jury believes V did not consent, will not listen to Δ – minority

 If we require clear no, how can we have reasonable MOF – this must mean where he
thought no means yes (enticement).
 Force as separate requirement to add an extra check, because we don’t want to confuse
rape and desired activity.
 To prove Force: Must show force then and there, at the moment of non-consent (res
gestae) (Commonwealth v. Berkowitz – college dorm room)
 To prove threat of force: (State v. Alston)
i. Majority - Must bring out reasonable fear in her. Minority – actual &
ii. Fear of force must be for right then, but we could look broadly to see if fear
was reasonable, including looking at history. (Objective reasonable test in her
situation i.e. background etc….)
iii. Majority - Must be threat of physical force.
 Non verbal threats like a look in his face could be argued both ways. (rusk v. state)
 In a consensual relationship – must show revocation of permission.
 NJ: No more force than that needed for penetration (1 prong). The AR is then sexual
intercourse; AC is absence of clear yes. Also reasonable MOF ok.

Majority Minority NJ
2 or 1 Prongs 2 NJ 1
Clear No or absence Proof of clear no NJ Absence clear yes
of Clear Yes
Reasonable MOF Yes Strict Liability Yes
Fear Reasonable subjective
Physical Force Yes No
Statutory Rape - NON - STRICT NH: Honest &
MOF LIABILTY reasonable
 Freely given could also include badgering and peer pressure.
 Illegal threat also is a valid non-consent. But prosecution must also show force unless its
 Some jurisdictions make a distinction between fraud in the factum and fraud in
inducement for “unconscious to the nature of the act” (Boro v. Superior Court).
 We want to call some misrepresentations rape (fear or maybe occupation) but not garden
variety of misrepresentations. IS THIS FOR NON CONSENT??
Statutory Rape:
 Majority: No MOF (Garnett v. State) Minority NH: Honest & Reasonable MOF
 Should we criminalize this? Takes liberty, risk of STD, paternalism over controlling
what is acceptable consent.
 SR & FM – no clear legislative intent for SL.
 Several types:
o Failure of proof – Case in chief defenses
o Justifications: One harm over another: SD, Nec.
o Excuse: Insanity – not my fault

Self Defense: Necessary & proportional right to self preservation.

 RULE: All jurisdictions: Subjective belief of threat of death or great bodily harm or
enumerated acts.
 Reasonableness of belief:
o Majority – nonMPC – Objectively reasonable – doesn’t need to be actual. (People
v. Goetz)
o Minority – MPC 3.04.2C – subjective only, but if assessment of threat or
proportionality of response is REC or NEG Fallback 3.09.2 you can get him on that
if its an offense under statute.
 No Alternative:
o Space: (retreat): (US v. Peterson – Wipers)
 Majority, nonMPC – so retreat required (no risks + www) + Castle doctrine
 Minority, MPC – 3.04.2.b.2 – subjective test – only if he can do it in perfect
safety + Castle doctrine
• (except if your initial “aggressor” this may follow MPC definition of
aggressor or the nonMPC definition – both listed below)
• (in a abstain from regular activities – MPC might make you, or may
so retreat rules only within the situation – no abstaining).
o Time: (imminence)
 Majority, nonMPC – objectively reasonable that its imminent
 Minority, MPC – subjective only
o Proportionality:
 Majority, nonMPC – objectively reasonable – (shoot in arm if possible)
 Minority, MPC – subjective only
 Aggression: nonMPC – an unlawful act likely/apt to provoke forcible response (from juries
view). MPC is more subjective – those who intend to kill or greatly harm.
o Deadly Force Aggressor – NO SD
o Non-deadly force aggressor:
 Minority, MPC – SD
 Majority , nonMPC – No SD (some - imperfect SD – mitigate from M to MS)
o You can regain SD with a communicated and implemented good faith attempt to
 Deadly force may not be used to stop non deadly force – even if it’s the only way to prevent.
 nonMPC – reasonable in defendants shoes (but not particularly idiosyncratic).
 Another form of imperfect SD in nonMPC is honest but unreasonable – mitigate to MS.
Minority – MPC SELF DEFENSE Majority - nonMPC
3.04 Belief of threat of death or
GBH or enumerated acts
Subjective with rec & neg 2nd Reasonableness of Belief Objectively reasonable
Subjective – only in perfect Alternative: Space No retreat (risk & www) +
safety + castle castle
Unless initial “aggressor
• May or may not make you
abstain from regular activities
Subjective Only Alternative: Time Objectively reasonably
Subjective Only Alternative: Proportionality Objectively reasonable
No SD Aggression: DF No SD
SD Aggression: NDF No SD (imperfect
Communicated and Regain SD Communicated and
implemented good faith implemented good faith
withdrawal withdrawal


Subjective belief – danger to self Trigger Subjective & Reasonable belief
or others (could include human of danger to self others or
threats) Property (only natural – no
Subjective belief of no alternative No Adequate Alternative Sub & Reasonable + imminent
Correct Balance based on facts as Balance Correct Balance based on facts as
they would have appeared to a they would have appeared to a
reasonable person - Harm seeking reasonable person - Harm
to prevent must be greater than seeking to prevent must be
harm of offense charged (Nelson greater than harm of offense
v. State) charged
RECK or NEG fallback if caused Δ was reck or neg Some will deny if Δ conduct in
by or misappraised by his reck or some blameworthy (p/k/r/n) way
neg actions or thought MPC caused conduct. (no fallback for
CODE 3.02.2 unreasonable belief because it
needs to be reasonable – see

MPC – 2.09.1 DURESS (not a defense to nonMPC

Coerced by threat of unlawful Threats (only human) Coerced by threat of death or
force against self / other (person GBH +reasonable belief
of reasonable firmness in his
situation would have been unable to
No adequate alternative + Alternative No adequate alternative +
reasonable Reasonable + imminent
REC – no duress defense Δ Caused situation Some deny completely if Δ
Neg – second bite if neg is a conduct in some blameworthy
crime under offense MPC way cased circumstances
CODE 2.09.2

• Some subjectivity allowed – size, strength, age, health past relevant experiences – no
• US v. Contento Pachon for alternative question.
• Difference between Necessity & Duress – Nec you use your free will to choose to do this,
Duress – you don’t have a choice.

Intoxication: Only to puncture prosecutions case – couldn’t have had relevant MR.

Possibilities: From most Δ friendly to least:

1. Always allow intoxication to puncture – no jurisdiction
2. MPC 2.08.1 Always allow intoxication to puncture with CONSTRUCTIVE RECKLESNESS
fallback if recklessness establishes an element of the offense 2.08.2
3. Allow intox with regards to SI crimes or 1DM to 2DM: nonMPC Graves Approach. (still
have to prove underlying crime) This is the culpability regime talking – we want let you off
even w/o SI – you’re a bad man – well get.
4. Allow intox for 1DM to 2DM: nonMPC Tarver Approach
5. Never – nonMPC – Montana, Egellhoff Approach. (Scalia – present story w/o intox – we
can make whatever evidentry rules we want, Dissent – Due process violation. Ginsberg – we
impute deliberate homicide if it would have been if not for intox.
• The discussion is do we look back in the time line to the voluntary intoxication.


 2 Types – 1) Complete 2) Incomplete – we will focus on incomplete.

 Justifications: General deterrence, Specific deterrence – incapacitation, rehabilitation,
intimidation, prevention.

Some Rules:
• Justices are given much interpretive power for attempts statutes – police given much power
for dealing with suspicion
• Rule of Merger – can be charged with both crime and attempt
• Attempts are lesser included offence
• Could prove attempt by showing completed crime
• We don’t punish for thoughts alone
Subjectivist Theory – Intent + some acts (Intent oriented).
Objectivist – wants to see more action – manifestations (consequences oriented).

1. Proximity – most Δ favorable. How close are you to completed crime. The most proximate
to the last step, the better for prosecution. (Commonwealth v. Peaslee – driving to do arson,
not enough & People v. Rizzo – finding payroll guy, not enough).
2. Means (plus intent) – Does the defense have control over all means necessary – like tools,
plans, specific victim and accomplices. Or did he not get an indispensable item. + Some
action or intent. “IS THERE ANYTHING MISSING”
3. Unequivicality – are there any reasonable explanations that wouldn’t be criminal. (hay stack
lighter – cigar) The law says don’t look at intent evidence – don’t loom at confession or
diary – only look at statements or speech that are part of the criminal actions – HYPO - D
paid X (an undercover agent) to procure a girl for sex – he picked her out of a catalogue and
rented a room, and was arrested as they walked to the room. – These statements that are part
of act (like talking to agent) are admissible – mere desire statement are not admissible.
4. MPC - Most prosecution friendly – 5.01.1.c “Substantial step.” + 5.01.2 “Strongly
corroborative of the actors criminal purpose” – if evidence is strongly corroborative, even if
very early in time line (as opposed to proximity – must be late in game) – there will be
substantial steps.