CRIMINAL LAW POLICY OUTLINE FALL 2017

 Rubric
o Current law
o Current critique
o Principles of punishment
o Take a position
 Take a position
o Thesis/intro paragraph
o Organize, simple to read
o If asked to compare MPC/CL/Area of law, explain each in full
o Conclude
 Talk about:
o Principles of punishment if possible - bonus points!
 Utilitarianism
 Retributivism
o Goals of punishment
 DR CRIP
o Proportionality
o Differences in civil and criminal law
o Principles of legality
o Statutory interpretation

I. Nature, Sources, and Limits of Criminal Law

a. Criminal versus Civil
i. Criminal
1. Public (state v. defendant), prosecutor acts on behalf of all of us
2. Criminal sanctions = condemnation/judgment/hatred of the community, plus the
added consequences (harsher sanctions than civil)
3. Moral stigma - moral condemnation is the goal
4. Burden of proof is greater
a. Prosecutor must prove every element beyond a reasonable doubt
b. Because there is such a great imbalance of power between the State and
the Individual (great big State, weak little individual)
c. Court has ruled that it is not appropriate to quantify (ie as %)
d. Moral certainty
ii. Civil
1. Distinction is getting smaller
2. Private
3. Lesser sanctions – deprivation of property, rarely liberty
4. No public condemnation
5. Social compensation is the goal
6. Burden of proof – preponderance of the evidence, balance of probabilities (51%)
b. Legislature’s Role
i. Legislators, not judges, exercise primary responsibility for defining criminal
conduct and devising the rules. Punishment imposed by other agencies.
ii. For general direction to work successfully, the person who is supposed to conform
his conduct to the direction must:
1. Know of the direction’s (law’s) existence, and of its content in relevant respects
2. Know the circumstances that make it applicable in a particular instance
3. Be able to comply

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 4. Be willing to comply
iii. The Constitution is a limit on legislative lawmaking
1. Eighth, Fifth, Fourteenth Amendments
2. Federalism
3. Separation of Powers (legislative branch is the law-making body, not judicial)
a. When a Federal court declares a state statute unconstitutional, it runs
the risk of violating federal principles of federalism and usurping
legislative authority
b. Legislative bodies represent the majority; it is usually the
responsibility of the judiciary to ensure that the rights of the minority
are upheld
c. Judiciary’s Role
i. Vital role in ascertainment of guilt by interpreting criminal statutes
d. Model Penal Code
i. Reform criminal codes: less overlap, gaps, inconsistencies
e. Ingredients of a Crime
i. Without act (actus reus) and mental element (mens rea), connected to the social harm
(causation), we have no crime.
ii. Principals of punishment demand voluntary violation of the law.
f. Sources of Criminal Law
i. Statutes (first step. If insufficiently specific, turn to CL)
ii. Common law
iii. Constitution
iv. Model Penal Code
g. Basic Criminal Procedure
i. Felony: imprisonment in state penitentiary (or maximum penalty of greater than 1
year).
ii. Misdemeanor: imprisonment in local jail (or maximum penalty of less than 1 year).
1. Report of Crime
2. Pre-arrest investigation
3. Arrest
4. Booking
5. Post-arrest investigation
6. Decision to charge
7. Filing the charge with a magistrate
8. Magistrate review
9. First appearance (aka arraignment on the warrant)
10. Preliminary hearing (felonies)
11. Grand jury
12. Filing of indictment or information
13. Arraignment on the information/indictment
14. Pretrial motions
15. Trial
16. Sentencing
17. Appeals
18. Post-conviction remedies

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 II. Principles of Punishment
a. Theories of Punishment
Utilitarianism Retributivism
Justification  Benefits society  Punishment for the crime is
 Prevents future evils deserved
 Forward-looking (teleological)  Prevents private vengeance
 Debt to society
 Backward-looking (deontological)
Human Beings  Rational calculators  Actors have free will to violate
 Weigh benefit of crime w/ pain of social contract
punishment
 Pleasure-seekers/pain-avoiders
Deterrence  General: punishment serves as a lesson to  Non-issue, should not have an
the rest of the community effect on punishment
 Specific: punishment prevents that
individual from committing future crimes
Proportionalit  Punishment should be no more than is  Punishment should be
y necessary to “get the job done” commensurate/proportional to the
 Punishment must be proportional to the crime committed (death penalty for
benefit the punishment will create homicide, property deprivation for
theft)
Pros  Benefits society, working towards the  Restores social balance
social utopia via deterrence  Prevents private vengeance
 Deterrence
 Rehabilitation
Criticisms  Potential to punish an innocent person (bc  Based on emotion, not reason
would still serve as lesson to community)  Vengeful
 Rehabilitation doesn’t work  Does not take into account a
 Takes away a person’s free will person’s capacity
 Reducing sentencing discrimination
leads to mass incarceration
b. Regina v. Dudley and Stephens
i. Conviction is retributivist, commuting sentence to six months is utilitarian (can separate
conviction and punishment)
c. People v. Du – utilitarian (grocery owner not a danger to society, but did kill 14 y.o. girl)
d. Goals of Punishment - Dr. Crip
i. Deterrence
ii. Rehabilitation
iii. Condemnation
iv. Retribution
v. Incapacitation
vi. Protection of the public
e. MPC §1.02 explicitly speaks to rehabilitation
f. Proportionality – Eighth Amendment
i. SCOTUS: factors should be weighed in sentencing (broad approach)
1. Gravity of offense compared to severity of penalty
2. Intra-jurisdictional analysis
3. Inter-jurisdictional analysis

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 ii. Rummel v. Estelle – SCOTUS upheld life imprisonment w/ poss. of parole for stealing
$120 (utilitarian, because had been previously convicted of theft twice)
1. But overturned Solem v. Helm in same circumstance (difference – Helm had no
possibility of parole)
2. Harmelin v. Michigan – SCOTUS said Eight Amendment does not actually
guarantee against disproportionate sentences (Solem would be held differently on
these grounds)
iii. Kennedy principles of proportionality (Narrow approach):
1. Fixing of prison terms involves a substantive penological judgment that is
properly within province of legislatures, not courts.
2. Eight Amendment does not mandate adoption of any one penological theory.
3. Substantial divergences in penological theories and in sentencing are the
inevitable, often beneficial, result of living in a federal system
4. Proportionality analysis should be informed by objective factors whenever
possible
III. Principle of Legality
a. nulla crimen sine lege, nulla poene sine lege (no crime without law, no punishment without
law). Three corollaries of legality:
i. Law must be clear and comprehensible to the reasonable person
ii. Criminal statutes should not be crafted so as to delegate basic policy matters to police,
judges and juries on subjective basis (statute cannot be so broad/vague that
police/judges/juries ultimately give it content)
iii. Strict construction: any uncertainty should be biased in favor of the accused (doctrine
of lenity)
b. Constitution prohibits federal and state legislatures from enacting bills of attainder and ex
post facto legislation.
i. Legality principle applies to judiciary through Fifth and Fourteenth Amendment due
process clauses
ii. Commonwealth v. Mochan (debaucherous phone calls): brought conduct into the
common law “injures public” realm.
iii. Keeler v. Superior Court (fetal killing): fetus not included in definition of murder, must
ask what legislature intended.
c. Statutory Interpretation
i. To determine what legislature intended: Look to previous cases, legislative history,
common parlance, and circumstances.
ii. Doctrine of lenity
iii. Second corollary of legality: vague statutes  too much left to the discretion of police
officers
iv. Yates v. United States (fish do not equal tangible objects)

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RAPE

a. Old English Common Law Definition

i. Carnal knowledge by a man, of a woman, not one’s wife, forcible and against her will
1. Gender specific
2. Carnal knowledge included intercourse; not all sexual assault
3. Marital exemption
4. Most rape statutes in the U.S. have an element of force
ii. Law on rape is completely different across each state
iii. What and when constitutes rape?
b. American Statutes use: “forcible” ; “against her will” and “without her consent” – sometimes all
c. Rape is a general intent crime; he does not need to know that she is not consenting)
d. Elements of Rape
i. The Actus Reus
1. Sexual Intercourse
a. Used to be defined narrowly as penetration of actual intercourse. Other kinds of
sexual acts were not considered rape, but might be considered assault
b. Now many states have redefined rape as sexual assault and separate it into degrees
based on the level of force used, and /or the type of sexual act
i. Penetration by a foreign object
ii. Forced oral sex
iii. Mouth constitutes a sex organ
2. Force (shown by resistance)
a. How much force? When must force be used? How do we establish force?
b. Traditionally, the amount of force required was the force, or threats to use force, that
would cause serious bodily harm or death to Victim or third person
i. Is this appropriate? Consider the concept of the ideal victim?
c. Force is now defined on a continuum, with threats of death or grievous bodily harm
on the one end and the force inherent in any intercourse on the other end
i. For all the cases in the middle how do we find force?
ii. State v. Alston – abusive relationship with history of Victim complying with
D’s demands for sex by passively submitting. Victim told D relationship was
over. D threatens to fix her face. D wanted sex. Victim verbally refuses then
submits
1. Court holds no evidence of force or threat, so case should have been
dismissed ( remember traditionally we need force and lack of consent)
2. As a result force becomes resistance – dependable on the Victim’s
behavior
a. This puts it on the victim which is a huge issue
iii. Force on the other end of the Continuum
1. Court finds that the mere physical force associated with the act is
sufficient to constitute “forcible” or “force used to over come non-
consent”
2. In other words, the court separates the two components and essentially
removes the force requirement so that non-consent becomes central
3. But can we really separate the components here?
4. Is this “No” as sufficient resistance, or increased emphasis on non-
consent
d. Resistance Requirement – what constitutes sufficient resistance?

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 i. Rusk v. State (1979) – D takes victim’s car keys to induce/compel her to come
upstairs. She at one point asks “if I do what you want, will you let me go
without killing me?” Victim complies with D’s demands
1. Does this meet resistance requirement?
ii. Commonwealth v. Berkowitz (1992) – D and V have encounter in dorm room,
where D never receives an affirmative yes to his advances. V does not actively
resist (or does not have time to actively resist) but does not welcome the
advances either
1. Court finds that there was no evidence of force or forcible compulsion
here
2. Is this consent with our societal values?
3. Against her will (Without her consent)
a. On whom should the burden be placed?
b. What is the difference between the absence of a refusal, and the presence of consent?
c. If there is no verbal express “yes” what conduct could constitute consent?
d. What conduct by the male could render the consent invalid or tainted?
e. What about marital immunity rule
f. US law on rape varies substantially from state to state (very few follow the code)
i. Most states no longer have resistance requirement, yet the force required may
still lead to an unspoken resistance requirement.
ii. Def’n of force can run from “force or threats of physical force” to “requiring
only the force necessary to commit the physical act” to “force presumed from
absence of freely given permission”
g. Examining the statutes across the country, one can discern that sexual intercourse, by
the D with a V (not his wife) will rape, if it occurs:
i. Forcibly
ii. By means of fraud (if she doesn’t know she is consenting to sexual
intercourse.) (or in some states if she thinks D is her husband)
iii. While victim is asleep or unconscious
iv. Where victim is not competent to consent
ii. Mens Rea
1. Rape is a general intent crime, therefore knowledge that the woman is not consenting is
unnecessary as long as D has “blameworthy state of mind” regarding her consent
2. Is this consistent with our societal understanding of rape?
3. How would you change it?
4. Commonwealth v. Lopez (2001) – D and V present highly different accounts of the event. D
seeks instruction on Mistake of Fact. What is required? Note dissent
5. Mistake of Fact in Rape – in most jurisdictions, but not all, an honest and reasonable belief
that the woman consented will exculpate the D.
6. Is this consistent with our requirement of a subjective mens rea. See D.P.P. v. Morgan

iii. Thoughts
1. The law could lead by instating an affirmative defense statute
2. What about someone who is intoxicated and honestly didn’t know that they raped someone?
a. Mens rea is the sina quo non of culpability so how would this work?
3. We don’t have a clear rule on intoxication and mistake of fact
4. Since we don’t have an official American statute it would be easier for people to be aware
what is classified of rape etc.
5. (Does the law lead or follow the Definition of rape)
6. courts are not consistent with punishment

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 7. social stigma attached to rape is so large and lasts for life so you still need to protect the
defendant

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INSANITY

1. Insanity is an affirmative defense, so the defendant has both the burden of production and burden
of proof.
a. Most states require the defendant to prove insanity by a preponderance of the evidence, though
the federal courts require a defendant to prove insanity by clear and convincing evidence.
2. Competency to stand trial
a. Defendant is incompetent to stand trial unless she (1) has sufficient present ability to consult
with her lawyer with a reasonable degree of rational understanding and (2) has a rational as well
as factual understanding of the proceedings against her.
i. If incompetent to stand trial, D is committed to mental hospital until regains competency.
ii. This can mean that a person will be committed for longer than the sentence they would
receive for the crime committed.
1. SCOTUS: Person cannot be held longer than reasonable period of time necessary
to determine whether there is a substantial probability that he will attain capacity
in the foreseeable future.
a. Then move to customary civil commitment proceedings.
3. The purpose of the insanity requirement is not to determine who is mentally ill, but rather to
determine who among the mentally ill should be held criminally responsible for their conduct.
a. But how do we draw the line?
4. Arguments FOR the insanity defense:
a. Utilitarian:
1. Deterrence is ineffective for an insane person (a person who does not know what
he is doing or who cannot control his conduct).
2. Incapacitation is desirable for an insane person who commits a crime, but NGRI
does not result in a person being freed (results in civil commitment). There is no
purpose in convicting and stigmatizing an insane person, when the goal of
incapacitation is served by an NGRI acquittal.
3. Rehabilitation is also not served by convicting an insane person. Prison does not
rehabilitate effectively, and it makes more sense to treat the medical condition
than to send an insane person to prison.
b. Retributive:
1. Free will. The insane person lacks the free will ability to act rationally and control
their behavior. We punish people who choose to act immorally or illegally, but
this requires free will. Those who do not possess free choice should not be blamed
in the same way that we blame those who do freely choose criminal conduct.
2. Just punishment is based on a person’s moral desert, which is dependent on a
person being morally responsible for his actions. Moral responsibility is
dependent on a person’s rationality and self-control. An insane person does not
possess rationality and self-control; they are therefore not morally responsible for
their actions; they therefore do not possess the moral desert required for just
punishment.
5. Arguments against the insanity defense:
a. Although it is rarely used, it is used in especially heinous or public crimes (serial/mass killers,
assassination attempts). Society wants to punish these crimes.
b. The law and psychiatry have differing and conflicting objectives, so any legal defense based on
psychiatry is difficult to administer.
c. Abolition of the defense:

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 i. After attempted assassination of President Ronald Reagan in the 1980s, a few legislatures
abolished insanity defense → instead, can use evidence of the mental disease or defect to
rebut the mental state required in the definition of the crime
ii. Abolitionist arguments:
1. Crime and psychiatrist do not mix well. While they both look at human conduct
from different philosophical perspectives but law is premised on free will and
psychiatry is typically deterministic regarding human conduct
2. Some want to abolish it to get rid of the number of excuse defenses recognized in
criminal law
3. Some want to expand the law of excuses, but for reasons of equity don’t want to
treat mentally ill individuals more leniently than others of the same morally
blameless but who are punished for their wrongdoing.
4. A would-be wrongdoer might think that if caught for the crime, he/she can avoid
conviction by raising the insanity defense → rather than abolishing it, people
should be educated regarding the true effect of the insanity defense (burdens and
long term civil commitment)
5. Some say it is an abuse of the criminal justice system
a. Frequently asserted and too often successful
b. Wrongdoers get to walk free because they are able to persuade juries of
their nonexistent madness.
c. Other side: it is rarely invoked and when it is experts typically agree that
the defendant suffers from a mental illness. Success rate is low.

6. M’Naghten rule:
a. Person is insane if:
i.  at time of committing the act
ii.  was laboring under such a defect of reason, from a disease of the mind, that
iii. she did not know the nature and quality of her act; or
iv. if she did know the nature and quality of her act, she did not know that what she was
doing was wrong.
b. This test focuses on the cognitive deficiency.
c. Very narrow, only focuses on what a person is thinking.
7. Irresistible Impulse (Parsons):  
a. broadens scope of M’Naghten rule to encompass mental illnesses which affect volitional
capacity.  If the disease of the mind creates delusion as to the act, or the inability to distinguish
right from wrong, OR the inability to refrain from doing the act, there is no responsibility.
b. Goes to the free will aspect of criminal responsibility
c. 3 factors used for this
i. acted from an irresistible and uncontrollable impulse
ii. lost the power to choose between right and wrong and to avoid the act because her free
agency was destroyed
iii. defendant’s will has been (involuntarily) so completely destroyed that her actions are
beyond her control, so the alleged crime was solely the product of the mental disease
d. Criticisms of this test:
i. Too narrow → should not exclude non-impulsive behavior and that it is naive to require
total incapacity
8. Durham test (Product of the mental disease)
a. “There must be a relationship between the disease and the criminal act and the relationship must
be such as to justify a reasonable inference that the act would not have been committed if the
person had not been suffering from the disease”
b. Causal link is the key here.
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 c. But was too vague – finally abandoned in Brawner.
d. Criticisms: it fails to define mental disease or defect.
i. A psychiatrist could usurp the jury’s authority. If both prosecution and defense bring in
experts to prove/not prove defendant was insane jurors would just need to pick which
they believe.
9. ALI or Model Penal Code approach
a. § U.S. v. Brawner (U.S. C. A, D.C. Circuit 1972)
b. “A person is not responsible for criminal conduct if at the time of such conduct as a result of
mental disease or defect he lacks substantial capacity either to 1) appreciate the criminality
[wrongfulness] of his conduct or 2) to conform his conduct to the requirements of the law”
c. Does not require complete impairment; includes volitional and cognitive component.
10. As a result of these 4 different tests over time, the standards across the country are somewhat varied,
however, M’Naghten is dominant. (MPC still strong but less so.)
a. Criticisms: based on an outdated psychological assumption that the human mind is divisible into
“volitional” and “cognitive” functions
11. Federal test:
a. § U.S. Congress statutory definition of insanity (2006)
b. § “person is excused if he proves by clear and convincing evidence that, at the time of the
offense, as the result of a severe mental disease or defect, the defendant was unable to appreciate:
1) the nature and quality of his acts; or 2) the wrongfulness of his acts”
Mental disease or defect does not otherwise constitute a defense

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SELF DEFENSE

 “Will the defendant get a cape?”

 At Common Law Self Defense allows that a non-aggressor is justified in using force upon another if he
reasonably believes such force is necessary to protect himself from imminent use of unlawful force by
the other person. The elements of self-defense consider 1) who the aggressor is, 2) the necessity of the
force used, 3) proportionality 4) whether the threat was imminent and 5) the defender’s reasonable
belief.
 §  MPC approach self-defense – a person is justified in using force upon another person if he
reasonably believes that such force is immediately necessary to protect himself against the exercise of
unlawful force by the other individual on the present occasion.
o The reasonable belief is subjective and takes into account age, gender, and physical capacity and
may consider previous interactions of the actors.
o Immediately differs from imminence of the common law and authorizes self-protective force
sooner than may be allowed at common law.
  MPC: Deadly Force MPC is almost always unjustifiable unless the actor believes that its use is
necessary to prevent imminent and unlawful use of deadly force by the aggressor
o For aggressors prohibits the use of deadly force by a person who, with the purpose of causing
death or serious bodily injury, provoked the use of forces against himself in the same encounter
o Retreat: cannot use deadly force against an aggressor if one knows that he can avoid the
necessity of using such force with complete safety by retreating
 Elements of self defense
o 1. Aggressor
 Who is the aggressor?
 Once you become aggressor are you just stuck or is there a way to get out of it?
 In general, a non-deadly aggressor met with disproportional force automatically regains
the right of self defense  - this is the law in most states.
 In some states however, they require you to retreat from the deadly response, if you were
the initial non-deadly aggressor.  You would only regain the right to self defense if there
was no obviously safe retreat.
 2. Necessity
 imminence - “Upon the instant” “at once”
 Degree of force:  one can only use the force necessary to repel the attack, so if a deadly
attack can be repelled with non-deadly force, the defendant must use non-deadly force.
 93 year old man with a knife who is about to attack you, if you could stop that
attack by just pushing him over, you can't pull out a gun
 If it is a non-deadly attack then you can't use deadly force
 The Issue of  Retreat (you may have to analyze retreat twice on an exam)
 Maj.:  Most states do not require you to retreat when you are aggressed upon,
even if you can retreat safely.
 The rationale given for this is that we shouldn’t denounce conduct when it
accords with behavior of reasonable men; manly thing is to hold one’s ground
 Some states  (MPC) however require that the innocent person MUST retreat IF he
knows he can do so in complete safety
 Even in retreat jurisdictions however, there are exceptions to the retreat rule:
Castle doctrine
 Consider also what this means in domestic violence situations, where both are
residents of the home.
 3. Proportionality

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  A person may not use force excessive to the harm threatened.  One may only use
deadly force if one is threatened with deadly force.  
 Even if the only way to repel a non-deadly attack is to use deadly force – like
pushing someone into the path of an oncoming car to avoid their striking you –
one has to suffer the non-deadly attack rather than use deadly force to repel it.
 4. Imminent Unlawful (Deadly) Force
 Traditionally, imminent means “immediate,” “upon the instant” or “at once”
 Consider the MPC rule though – note how imminency changes
 Battered Women’s Syndrome
 Does this count as imminent harm?  This is the court actually stretching notions of
imminence to accommodate a particular kind of reasonable person, or a particular
set of circumstances.  Are you convinced?
 Jurisdictions are currently split on use of the BWS to allow for self defense
claims.
 3 kinds of cases appear:
 1.  Where D and abuser currently in conflict (can use regular self defense).
 2.  During a lull in the conflict or abuse (need to modify tradl notions of
imminent – split among jurisdictions).
 He's asleep, or he goes out to the car to get something and she
shoots him, or he's watching the game. We have a split in
jurisdictions. MPC jurisdictions and some other jurisdictions it has
been allowed, and sometimes it falls in the realm of imperfect self-
defense. In most states however we have not permitted self-defense
to be used. Usually a voluntary manslaughter conviction with a
very light sentence.
 3.  Hiring someone to kill the abuser (not permitted, though there
may be other claims that can work)
 Unlawful:
 person may not defend himself against use of lawful force, but even a
police arrest can be unlawful if excessive force is used.
 Any conduct that constitutes a tort or crime is unlawful, even if the person
might have a valid legal excuse
 5. Reasonable Belief
 Goel eating cheese stick but we think it is a candle stick
 Was the defendant’s belief reasonable?  Who is the reasonable person?
 The MPC and the common Law differ in two major ways
 MPC is drafted in terms of the actor’s subjective belief in the need to use force; his belief
need not be reasonable.
 The Code substitutes the phrase “immediately necessary on the present occasion” for the
common law imminency requirement. This shift in language authorizes self-protective
force sooner allowed at common law
 Imminence is controversial because of all the attention surrounding new issues like
domestic violence etc. Some people say we should get rid of this requirement and instead
apply the “anticipatory self-defense” concept. The problem is that when we move away
from an imminency requirement to risks of error in predicting the future and in predicting
whether options that are less extreme than deadly force may be available are greatly
enhanced.
 Ultimately, if we continue to subjectivize the defendant with physical characteristics, knowledge
and past experience, are we moving away from justification and into excuse?
 What if the defendant’s belief is unreasonable?

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  In general, an unreasonable belief means the defendant cannot meet the
requirements, and his self-defense claim must fail.
 Imperfect self-defense is available in some states for:
 i) failure to retreat if one was the non-deadly aggressor;
 or ii) if the defendant’s belief as to the harm he was facing was
unreasonable.
 Goel has bubble gun and you have a reasonable belief that it is a deadly
weapon
 Utilitarian explanations - killing in self-defense may be socially desirable. They may argue that
they are getting rid of someone who has an anti-social nature who does not add to the greater
good. They also argue that over time self-defense will function to preserve life because the
permission to kill will operate as a sanction against unlawful aggression
 Another explanation of self-defense is the idea of self-preservation and how it is a natural right.
Defensive killing is also justifiable because the aggressor forfeits his moral right to life. Self-
defense has also been justified as a form of private punishment.  

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VOLUNTARY INTOXICATION

 Think about when intoxication should serve to reduce the culpability of the defendant
 Consider the fact that everyone knows when people drink alcohol, he/she knows what he/she is doing.
 Statutes generally guide the defense of voluntary intoxication → whether it can serve as a defense by
looking at the intent portion
 What about those who are addicted to alcohol?
o Defendants still should be held culpable for their actions regardless if an addiction deprives a
defendant of free will to some extent because there is still a choice to be intoxicated.
o Mention the tension between the need to treat an addict and the need to protect the public from
social harms committed by addicts (pros/cons)
 Consider if voluntary intoxication should take into account genetics → does being more or less
susceptible change how a juror should be instructed?
 Should the Defense be abolished?
o Most critics say to disallow any mens rea-based voluntary intoxication defense
o Utilitarian arguments:
 Protect the innocent from injury by the bad and thus, intoxication defense is harmful to
the welfare and safety of citizens
 It deters drunkenness/irresponsible behavior while drunk
 Make those who are incapable of controlling their impulses while voluntarily intoxicated
to be responsible for their actions.
 In favor of the defense:
 Even if intoxicated actor is dangerous, it does not necessarily prove the person possessed
the mens rea required in the definition of a crime.
 Intoxication might defeat establishment of the mental state when you can’t actually know
what they were thinking in an intoxicated state
 The element of the crime would not be satisfied
 Discussion in class: everyone knows what can happen when people are drinking
regardless of if you have been drunk or not. As a society, we understand and see how
alcohol can impair people. If you choose to put yourself in that position (voluntary
intoxication) would that be reasonable?
 COMMON LAW:
 The traditional common law rule is that voluntary intoxication is available to negate the
mens rea in specific intent crimes, but not in general intent crimes.
 MPC:
 Voluntary intoxication can be used as a defense to negate the mens rea in any crime, but
also allows for the voluntary intoxication to serve as evidence of recklessness

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MENS REA/ WILLFUL BLINDNESS

 Mens rea is the sine qua non of culpability

 Broad meaning: The mental state that makes an action culpable
 Narrow Meaning: The “elemental” view-- where we look at the mental state that is associated with
each particular element of the crime and see if the act is conduct with the conduct and result
 Utilitarian Arguments:
o Punishment of someone who lacks the mens rea will be ineffective when people cannot be
deterred unless they understand the rationale behind it.
o One who causes the harm accidentally is harmless and does not need “reformation”
o Other side: even if someone acts without the requisite mens rea the punishment can serve as a
warning to others to be more careful in their activities → this reduces the number of crimes.
 The burden of proving the mens rea element is difficult and sometimes people who are
culpable are able to avoid conviction because the element was not proven. THis would
send the opposite message to future wrongdoers who are looking for a legal loophole.
 Retributive Arguments:
 Mens rea has “roots far deeper in retributive than in utilitarian soil”
 Mens rea comes from society’s commitment to the idea of choice.
 Punish those who make the choice/culpably cause social injury
 Crimes are wrong and convictions are in place to condemn the wrongdoer.
 To properly condemn, a mental state needs to be present.
 Willful Blindness:
 Courts do not agree on the definition of this concept
 Known as “ostrich instruction”
 Controversial because…
 The culpability of the defendant may be based on little or nothing more than failure to
take obvious and simple steps to confirm the suspicion → jury may convict for being
careless which is NOT the same level of knowledge
 Someone who is willfully blind is reckless for not checking on their suspicion.
 Reckless is a much lesser form of culpability than knowledge. They shouldn’t be
grouped together
 Positive: willful blindness is a higher level of culpability than recklessness
because the person purposely blinds himself/herself to the proof of the fact in
question so they aren’t liable. A reckless actor is simply conscious there is some
risk.
 Possible improvements: redraft a statute to require a recklessness of the attendant
circumstances rather than grouped with knowledge; provide a definition of willful as it
may be seen as multi meaning; because willful blindness is morally equivalent to
knowledge, there may be a better way to group it outside of knowledge, higher than
reckless.
 COMMON LAW:
 Intentionally, knowingly, recklessly, negligently
 Intentionally:
 Subjective
 Conscious desire/object of the defendant to cause the social harm OR virtually
certain that the social harm will occur
 Knowingly:
 subjective
 The attendant circumstances demonstrate the person knows the harm exists OR

15
  Willful blindness
 The defendant must be aware of a high probability that the circumstances exist
and the defendant must deliberately fail to investigate to avoid confirmation of the
facts
 Recklessly
 Subjective
 Conscious disregard of a substantial and unjustifiable risk
 the probability and magnitude= substantial
 Negligently
 Objective
 Failure to be aware of the risk where the failure constitutes a gross deviation of
standard reasonable law abiding person
 Raises the question of how to determine the standard of a reasonable law abiding
person→ remember it is under an objective standard for negligence

 MPC:
o Purposely, knowingly, recklessly, negligently
o Purposely:
 Subjective
 Conscious object or desire to engage in prohibited conduct or cause a prohibited result
 This standard is narrower than common law
 Knowingly:
 Subjective
 Knowing that a result is practically certain to occur, or knowing and believing it exists.
 Difference from Common Law: if the defendant truly did not know, he cannot be held
culpable
 Willful blindness
 The defendant must be aware of a high probability that the circumstances exist
and the defendant must deliberately fail to investigate to avoid confirmation of the
facts
 Recklessly
 Subjective
 Conscious disregard of a substantial and unjustifiable risk where the disregard
constitutes a gross deviation from the standard of a reasonable law abiding person
 Negligence
 Objective
 Failure to be aware of the risk where the failure constitutes a gross deviation of a
standard reasonable law abiding citizen

16
 Common Law
Intent: Conscious object or desire or knowing the result is
virtually certain to occur
Knowing: only refers to attendant circumstances (bc already
covered under intent). Knowing an attendant circumstance
exists or believing it exists OR willful blindness as to that.
Willful Blindness: Deliberate ignorance. If the actor is aware
of a high probability of the existence of the fact in
question and takes deliberate action to avoid confirming
the fact or purposely fails to investigate in order to avoid
confirmation of the facts. (Ostrich Instruction)
Recklessness: conscious disregard of a substantial and
unjustifiable risk.
Burden on the defendant is less than the burden of refraining
from the risky behavior, then the behavior is considered
reckless.
Negligence: Failure to be aware of a risk where such failure is
a gross deviation from the standard of care.
* What the Defendant should have known (not what they
actually did know or believe)
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MPC (Most states)
Purposely: conscious object or desire to
engage in prohibited conduct or cause
prohibited result
Intention to do the act or cause the forbidden
result (subjective)
Knowingly: Defendant is aware his conduct
is practically certain to cause the result or
is aware of the nature of the act or
omission or the result to follow.
(subjective)
Willful blindness is included.
Willful Blindness: The defendant is aware of
a high probability that the circumstances
exist unless he actually believes that the
circumstances do NOT exist
Recklessly: conscious disregard of a
substantial and unjustifiable risk where
the disregard constitutes a gross
deviation from the standard of care.
*This is subjective (not what everyone else
would know, what did the
DEFENDANT know or guess)
Negligence: Failure to be aware of a risk
where such failure is a gross deviation
from the standard of care. (Objective)
* What the Defendant should have known
(not what they actually did know or
believe)
18
STRICT LIABILITY

 No mental culpability is required for a strict liability crime. The defendant committing the act resulting
in the social harm is all that you need.
 5 factors:
o 1.  this is not a malum in se crime derived from the common law but a malum prohibitum crime
enacted for the public welfare
o 2. legislative intent and policy clearly indicates strict liability or would be undermined by a Mens
Rea requirement
o 3.  The standard imposed by the statute is reasonable, small burden to comply with the statute
o 4.  The penalty is small (a fine, not imprisonment)
o 5.  there is no moral stigma attached to the crime (doesn't mark you as an evil person forever)
 Defenses:
o I didn’t do it
o This is not intended to be a strict liability crime given the nature of the crime or the
consequences to the crime
o Cruel and unusual punishment-- punishment could constitute a constitutional due process
violation
 Negatives regarding strict liability: Goes against the nature of criminal law by negating the mens
rea which is the sine qua non of culpability. If society completely eliminates the mens rea then
how do you deter the conduct? Or is the conduct so bad that it is acceptable?
 Utilitarian view: Promote acting with greater caution when engaged in dangerous activities OR
deter people from engaging in such activities at all. THEY LIKE IT
 Retributivist: If you don’t choose to commit the wrong and someone who is not otherwise
morally blameworthy, does not deserve to be punished.  THEY DON’T
 Because mistake of fact is not a defense for strict liability crimes, an honest and/or reasonable
mistake of fact never exculpates the defendant → it could be argued that it could either 1. Deter
others completely 2. Punish those who truly did not know what they were doing
 If the crime, by definition, requires a proof of mens rea, strict liability doesn’t care → tie back to
the importance of mens rea or the severity of the crime.
 Policy Debate Regarding Strict Liability
o The abandonment of the mens rea requirement
o Support for strict liability is largely limitedly to its use in the enforcement of public welfare
offenses and premised on utilitarian grounds.
 The absence of a mens rea requirement may have the desirable effect of keeping people
who doubt their capacity to act safely from participating in dangerous activities.
 Those who do choose to engage in risky activity will act with greater caution in light of
the strict liability nature of the law
 Inquiry into the actor’s mens rea “would exhaust courts” → too many minor infractions
 Some people believe rather than having strict liability, public welfare offenses should simply be
treated differently than traditional crimes where there is still a mental culpability requirement →
adding a lowered level of negligence or recklessness with high penalties to help deterrence.
 Others say that mens rea is an important requirement but it is not a constitutional requirement.
Case law has debated this.
 MPC: MPC uses a term of “violations” rather than “crimes” for those acts that a mens rea
requirement does not need to apply.

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ATTEMPT

 An inchoate crime is a crime that occurs before the final crime has happened and is therefore an
incomplete crime. Types of inchoate crimes are attempts, conspiracies, and solicitations. In prosecuting
inchoate crimes there is a desire to balance the rights of the individuals as well as the need for the police
to intervene to prevent the harm.
 An attempt is an inchoate crime in which a person, with the intent to commit an offense, performs any
substantial step beyond mere preparation towards carrying out the intent – (this constitutes the actus
reus). There are two elements for the mens rea component of attempt: intent to complete the actus reus
and the specific intent to commit the target offense. Further, there are two types of attempts: Complete
Attempt where everything has been done to complete the crime except succeed and Incomplete Attempt
where the defendant has not done everything quite yet to complete the intended crime.
o Types of attempts
 Complete: taking gun and firing but missing
 Incomplete: got the gun and loaded the bullets but did not fire  
 Mens Rea portion
 A clear distinction between the mental state for the target offense, and attempting the
target offense. You have to have an actual intention to complete the target offense to have
the requisite mens rea for attempting the target offense
 For example, 2nd degree murder can be proven by an intent to kill, or an intent to casuse
great bodily harm. However to be convicted of attempted murder, you must have the
INTENT TO KILL. An intent to merely injure is not good enough. (even if the action
looks extremely reckless, it is not the same as with intent)   
 6 tests for attempt (go through all 6 of them)
 The question is “when has the Defendant crossed from preparation to
perpetration?”
 (1) Last Act Test (“In a hypo this is most likely what you would use” - Goel)
 Looking only at completed attempts or attempts where everything the D needed to
do had been done
 Less about criminal prevention and instead about catching individuals who tried
to do something but you proved that you are a dangerous person, so we are going
to punish you even though the intended results did not occur
 Most stringent test
 (2) The Probable Desistance Test
 Asking at what point has the D done so much that it is really clear that the D is on
his way to commit criminal activity and because he has invested so much it is
unlikely he will turn back
 At what point does it become clear that the D is committed to it
 aka point of no return test)
 We need to see a physical act that corroborates the mental state of the D;
something that demonstrates that he is totally committed to this plan
 (3) Dangerous Proximity Test
 Police officers seeing something suspicious and acting
 In order to constitute an attempt you have to be dangerously proximate to
completion of the act
 (4) Equivocality Test
 Starting to cross from most important physical act to asking on a balance of
probility does it look like this individual is about to commit a crime
 We are looking at the physical actions and asking do these actions demonstrate
that this D is engaged in criminal conduct  
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  (5) Indispensable Element Test
 Simply says once you are on the way to committing the crime it doesn’t count
unless you got all the ingredients for the crime
 Goel saying she is going to kill her husband and drives home but doesn’t have a
gun (missing a major element)
 (6) Substantial Step Test
 MPC test
 More dependent what is in the D's head
 We need to know what you really intended
 Once we know what you intend to do, any act that is strongly corroborated by
your criminal purpose that shows that you have take substantive steps that is
enough
 Least stringent test
 6 tests, some focus on more physical, some on the mental. Goes from the most
extreme (lasagna in the oven) down to the least extreme (noodles on pan)
 What are we trying to balance when punish attempt?
 Trying to balance the rights of individuals and the need for the policy to intervene
to prevent harm
 “We don’t want police officers hiding in the bushes, saying I hope she misses, I
hope she misses”
 When is the right point to intervene?
 We analyze this by alternately looking at the defendant’s demonstrated propensity
or willingness to commit the crime.
 Intent Perspective, Subjective: what is in the Defendant’s head  
 Act Perspective, Objective: what has the Defendant already done
 DEFENSES
 The defense of impossibility is only available in the crime of attempt. These kinds
of defenses usually undermine our reason to punish. For instance, if someone
wants to pickpocket you and they try but you no money would we want to charge
that person? But if there is no possibility for that person to succeed then you
shouldn’t punish them. After all the whole point of punishing is prevent the crime
from taking place so why would we charge them when it would literally be
impossible to happen. BUT we have a D who has shown that they have the
propensity to commit the crime; so maybe we are just trying to commit crimes
from happening in the future,
 Three categories
 (1) Factual Impossibility -  When the defendant’s intended end constitutes a
crime, but attempt fails because of attendant circumstances beyond his control.
(i.e. shooting empty bed where intended victim usually sleeps, picking a pocket
that is empty)
 The rationale: as far as the actor knows, he has done everything necessary
to commit the crime intended and he should not escape punishment
because of some  fortuitous circumstance making it impossible to achieve
his intended aim.
 Intended conduct cannot happen because of something beyond the D's
control; no possible way to succeed
 Why should we allow the D to get away just because it didn’t work?
 Court says Factual impossibility is never a defense because as far as the D
knows he has done everything to commit this crime

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  We don’t want to reward this kind of conduct because he still has the
criminal intent and the willingness to act completely in order to fulfill the
target offense it is just good luck that it didn’t work out
 (2) Pure Legal - Pure Legal impossibility occurs when the conduct, even
if completed, is not a crime.  That is, the law does not prohibit the goal of
the act.
 Pure Legal Impossibility serves as a defense.  If it did not, we would be
punishing on the basis of Mens Rea, and offend the principles of legality
also – the conduct is not a crime.
 What the defendant is doing is not even illegal
 Always serves as a defense i.e. if I think I am not permitted to drive with
alcohol but theres no room in the trunk so I put it in the cab of the car. I
get pulled over and I think it is against the law but it isn't actually illegal
 That defense doesn’t exist
 Even though I may have indicated a willingness to participate in
something that is illegal, the state hasn’t made it illegal - principle
of legality we don’t punish for something that is illegal
 (3) Hybrid Legal Impossibility (this is the tricky one)
 Illegal but because of factual mistake about the legal status of
something it is not a crime
 If goel thinks jessica is a juror and she wants to ensure that she
votes a the right way so I bribe her. But she isnt actually a juror so
it is impossible.
 Trying to receive stolen property, but the property isn't stolen
 Even though you demonstrated your criminal conduct, you are just
mistaken then you haven't really committed the crime.
 You were attempting to do something that wasn’t actually possible
 That interest of bribing a juror wasn’t implicated
 This is often referred to by the courts as just legal impossibility,
but that is misleading.
 Hybrid legal impossibility occurs when the actor’s goal is illegal
but commission of the offense is impossible due to a factual
mistake about the legal status of some attendant circumstances
relevant to her conduct.
 Courts recognize hybrid legal impossibility in cases like:
 Receiving unstolen property thinking it was stolen    
 Trying to pickpocket a statue
 Shooting a corpse
 You cant be convicted to attempted murder because there
was no possible way for you to achieve your result
 Offering a bribe to a juror who is not really a juror
 In these instances the court has said the legal status actually
matter
 COMMON LAW - hybrid legal impossibility is a defense
however any case of hybrid legal impossibility can be
characterized as factual impossibility and courts have been
inconsistent
 Modern approach is to deny hybrid legal impossibility as a
defense. UNDER THE MPC ONLY PURE LEGAL WORKS AS
A DEFENSE.

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  Most states have followed the MPC and abolished the defense.
However problem with the MPC approach is seen in the example
of the woman thinking she received a stolen VCR and told the cops
 From a policy perspective the trend is to move away from both
defenses except pure legal defense but that is on the basis of
legality
 Issues with attempt
 The whole problem with the crime of attempt is that we are attaching guilt
BEFORE the guilt from the major crime would attach to that criminal.
This can lead to a lot of issues in how law enforcement assumes
something is going to happen etc. However, we also do not want police
officers hiding in the bushes and just hoping that the criminal does not
actually go through with the crime.
 Utilitarian Analysis - Those who set out to commit a crim expect to
succeed. Therefore any deterrent effect of threatened punishment
emanates from the target offense; the penalty threatened for an attempt has
no additional influence.
 Retributive Analysis - punishment of attempts makes sense because she
has done everything in her control to consummate the target offense. The
only difference between her and the successful wrongdoer is her bad aim
or the intended victims movement. Therefore deserves to be punished
 ACTUS reus of criminal attempts is hard to define. Subjectivists favor an
actus reus of attempt that allows for early attachment of guilt. (proof of
dangerousness through the mens rea is enough). Objectivists the actus reus
has independent significance, because they do not believe that society
should use its coercive power against inchoate conduct unless the actor
has caused some social harm, at least in the form of societal apprehension
of criminal activity.

23
CONSPIRACY

 Conspiracy is another kind of Inchoate offense and is defined as, “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 means.”
 Mens Rea
o Like all other inchoate offenses, this is a specific intent crime.  Requires two intents:  1) The
intent to agree, and 2) the intent to commit the target offense.
 Things affecting mens rea can affect one’s intent to agree. So if the defendant is
intoxicated, we might argue he was to intoxicated to intend to agree.
 Individual to intoxicated to agree, but the person who they were agreeing with
though they were fine. In this case you may want to argue that the Defendant
lacked the requisite mens rea because he didn’t intend to agree (failure of proof
defense)
 Is maybe an agreement? Or whatever?
 As a prosecutor you want to say that anything less than an absolute refusal
is an agreement
 Defense counsel will argue that anything less than a YES! IS NOT AN
AGREEMENT
 Argue that there is no intent to agree or there was an intent to agree but no
intent to commit the target offense
 intent to commit the target offense – will something less suffice?
 What about knowledge that crime will occur?  Can this be equated with intent that
the crime will occur?
 We might want to look for something that can be equated with intent. You
didn’t intend for it to take place, but you knew it was taking place and
didn’t care
 Someone comes into a gun store and says I need this gun to go kill
someone so give it to me now. At that point how culpable is the gun shop
owner? You knew what she was going to do.
 Push for a better society. If she does go home and kills her husband you
will be held culpable because you knew what was going to happen. OR do
we want to say that it is out of your hands. He doesn’t need to intervene
 Prosecutors want to expand the net of culpability
 Court says we can infer intent from this knowledge if: Knowledge coupled with
an interest (first three have to do with interest coupled with knowledge, I am
benefiting so one can infer my conspiracy) (opioid crisis, you will have a lot more
people saying knowledge is more than sufficient to demonstrate intent)
 1. the purveyor of legal goods for illegal use has acquired a stake in the
venture;
 If he says hey I’m doing this great job for you and your friends who are
prostitutes, and I should get a cut of the profits on every call that goes
through that ultimately leads to a sale
 2. when no legitimate use for the goods or services exists
 Marked cards in illegal gambling.
 3. when the volume of business with the buyer is grossly disproportionate
to any legitimate demand or when sales for illegal use amount to a high
proportion of the seller’s total business
 Physician who was prescribing 300 times more than any other physician
 Own a motel and the regular rate is 89 a night or 100 dollars an hour (if I
know that some of my cliental is only going to use it for an hour)
24
  OR if it is a serious crime for which the D has furnished the equipment.
 Gun seller
 This one doesn’t make as much sense. Different reasoning - if the crime is
serious then people should be trying to prevent serious crimes
 Actus Reus
 Actus Reus (this is the agreement itself)
 Works great if we have a contract signed in blood or a handshake but we
don’t normally have this
 Actus reus is the agreement itself. At common law, no act in furtherance of the
agreement is necessary.
 But how do we find an agreement?  We don’t usually have a contract
signed in blood so we must establish the presence of an agreement from
other evidence. What is necessary to demonstrate an agreement with the
common purpose?
 MPC
 MPC if he is willing to conspire in criminal conduct that is enough (unilateral agreement,
we just have to have one person who thinks they are in a conspiracy, because that way we
can have sting operations)
 Focuses more on what is in the D's head
 Most common law jurisdictions will maintain bilateral approach
 DEFENSES
 Wharton’s Rule- when the offense itself logically requires more than one agent, you
cannot have conspiracy to commit the offense – eg.: dueling, adultery, bigamy, incest.
 Wharton’s rule is not applied where a third party is involved to bring about the
criminal act.
 But Wharton’s rule applies where immediate harm extends only to the
participants and no other participants are envisioned.
 In this case, more participants are envisioned and harmed.
 Furthermore, legislative intent demonstrates a clear desire to attack organized
crime
 No Wharton’s Rule merger applies here.
 Nb.  Law enforcement often limit this rule to where the offense has not yet been
completed.
o Withdrawal- Withdrawal requires the defendant fully repudiate the crime, yet conspiracy is
complete upon any act in furtherance.  
 MPC says you can abandon the conspiracy so long as you try and thwart the conspiracy
 We are talking about pulling back from conduct that has occurred
 CL focuses more on action, no you already completed the criminal act, the act of
agreement and therefore you cannot withdraw
 MPC gives a break because it is about what it is in your head
 Thoughts
 Even if target offense is committed you can still be charged with conspiracy
 Group criminality - we are concerned with bad actors finding other bad
actors and causing greater harm
 There is no sort of drug trafficking that happens without some sort of
conspiracy
 Higher likelihood of damage and lower likelihood of criminal being
dissuaded from doing it
 Punishment when target offense is committed
 CL

25
  The offense of conspiracy does not merge into the attempted or completed offense
that was the object of the conspiracy
 The non-merger doctrine is unsupportable if the main purpose of conspiracy law
is to provide the police with an opportunity to prevent commission of the target
offense. Once the object of the conspiracy is committed or attempted this purpose
of conspiracy law evaporates
 MPC
 Diverges from CL. Provides that a person may not be convicted and punished for
both conspiracy and the object of the conspiracy or its attempt, unless the
prosecution proves that the conspiratorial agreement involved the commission of
additional offenses not yet committed or attempted
 Utilitarian
 Want to deter the target offense earlier on in the line towards the offense,
AND
 Want to deter organized crime/group criminality.

26
NECESSITY

1. Principle: if circumstances require a choice among various evils, an actor is justified if he chooses
the least harmful option.
2. Common law: a person is justified in violating a criminal law if the following six conditions are
met:
a. Actor must be faced with a clear and imminent danger;
i. (Distribution of hypodermic needles not necessity because AIDS was not an imminent
danger)
b. Actor must reasonably expect that his action will be effective in abating the danger;
c. There must have been no effective legal way to avert the harm;
i. (Driver who got truck stuck and stole and damaged dump truck denied assistance from
multiple passersby, who offered to call a tow truck)
d. The harm caused by the actor must be less serious than the harm avoided;
e. Lawmakers must not have previously weighed and determined the balance between the
competing values in a manner in conflict with the actor’s choice;
i. (Actor may not use necessity to defend his possession of marijuana for medical use if the
legislature has already considered and rejected such a choice)
f. Actor must come to the situation with clean hands (cannot have created the predicament).
i. This is an unwise requirement from utilitarian or retributivist perspective:
1. U: this requirement discourages an actor from preventing more harm after
creating a situation (if actor recklessly starts a fire, the law should create incentive
to purposely start another fire to create fire line to stop the spread).
2. R: this requirement may result in an actor being punished in excess of his
culpability (punished for purposely starting fire line fire, when should be punished
for recklessly starting initial fire).
3. MPC: Necessity = choice of evils.
a. A person’s conduct is justified if:
i. He believes that his conduct is necessary to avoid harm to himself or another;
ii. The harm to be avoided by his conduct is greater than that sought to be avoided by
the law prohibiting his conduct;
iii. No legislative intent to exclude the conduct in such circumstances plainly exists.
b. Broader than CL:
i. No imminency requirement;
ii. Actor does not automatically lose the defense if he was at fault in creating the
predicament.
1. Defense is unavailable if the actor is prosecuted for a crime of recklessness or
negligence and he acted recklessly or negligently in causing the predicament.
a. Actor who starts fire line to stop his recklessly started fire can be justified
in purposely starting second fire, but culpable for recklessly starting the
original fire.
iii. Not limited to natural threats, and may be used in murder cases.
1. Commentary: sanctity of human life is promoted by a law that permits an actor to
kill to save a larger number of lives.
4. Necessity is rarely successful as a defense.
a. Most often successfully used when actor, as the result of some natural force, must choose
between violating a relatively minor offense and suffering substantial harm to property or person.
(Driving on a suspended license to get someone to the hospital in a life-threatening emergency).

27
 5. Necessity is a residual justification defense (relates to conduct that is neither disallowed, nor
authorized by other justification defenses).
a. Necessity is a defense of last resort. When all else fails, but common sense, principles of justice,
and/or utilitarian considerations convince us that the conduct is justifiable.
b. Can think of the defense as a supplement to legislative judgment – when we think that the
legislature would authorize the conduct if they considered it.
i. It is the role of the legislature to define criminal conduct and the rules of criminal
responsibility; it is the role of the courts to interpret the law.
ii. It is not the role of courts to decide what legislature would have done.
iii. BUT, the principle of necessity is so essential to the rationality and justice of criminal
law, that even conduct not specifically designated as justified by the legislature may be
considered justified by the courts.
6. Examples of difficult questions of necessity. Are the following justifiable?
a. A homeless person violating city ordinance to sleep in a public space;
b. Distributing clean hypodermic needles to drug addicts to fight the spread of AIDS;
c. Possession of marijuana to reduce the effects of serious disease;
d. Prison escape because of intolerable conditions;
i. Some jurisdictions treat this as a duress defense claim.
ii. Most jurisdictions require an escapee to make a bona fide effort to surrender or return to
custody as soon as the claimed duress or necessity has lost its coercive force.
e. Possessing a firearm illegally because of an unlawful imminent threat;
f. Forging a check to pay for food out of economic necessity;
g. Killing an innocent person to save several innocent lives;
i. If the government had known that a plane was going to crash into one of the Twin
Towers on 9/11, would it have been justified in shooting down the plane and killing
hundreds of innocent people to save the lives of thousands?
ii. Conjoined twins who will both die if not surgically separated, but the surgery will kill
one twin.
iii. Regina v. Dudley & Stephens
iv. At common law, necessity is traditionally not available for intentional homicide.
v. Available under MPC.
vi. Utilitarian: killing an innocent person to save several innocent lives should be
justifiable. The end (reduction of the total harm) justifies the means (murder).
1. BUT, a rule authorizing the intentional killing of innocents in extreme
circumstances could be abused and ultimately result in more social harm. Also
could weaken the moral strictures against killing, which will also have a counter-
utilitarian effect.
vii. Retributivist: a person should not be seen as a means to an end. An unoffending,
innocent person can never be justifiably killed, even to save a larger number of lives.
1. BUT, killing in such circumstances could be excused: as a result of extraordinary
circumstances, we cannot blame an actor for giving in to the coercive
circumstance that compelled him to take a life.  necessity as an excuse defense.
h. Civil disobedience to signal opposition to a law or governmental policy.
i. Necessity is unavailable for indirect civil disobedience (violation of a law that is not the
object of the protest; trespassing to protest construction of power plant)
1. Technically fails because: Harm is not imminent; protest cannot directly abate the
danger; there are legal options, such as voting, to seek change; and legislature has
calculated the comparative harms differently than the protestors.
2. Advocates of political necessity defense: defense should be recognized because it
empowers the individual and the minority and allows them to have a public
hearing; empowers the jury by giving them an opportunity to nullify the law and
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 weigh in on controversial topics; criminal law should not be used against those
who are impelled to violate the law by conscience and not some improper
criminal motive.
3. Opponents: protestors who are compelled by conscience but also believe in a
democratic system should accept punishment (MLK, Gandhi), pay the price to
convince others that they are right; civil disobedience protestors demonstrate
moral arrogance by believing their value judgments are better than society’s;
those who break the law need to accept punishment as the price of choosing to
break the law rather than use democratic process.
7. Necessity v. Duress
a. Duress as a subset of necessity:
i. At common law, duress is only available when deadly force is threatened, and is only
available if coerced actor committed a non-homicide crime. Thus, duress seems to always
be a coerced party choosing the lesser of two evils, and therefore to be a sub-set of the
necessity defense. Only difference then is that duress is available for human threat instead
of natural threat.
1. BUT, duress can be available in equal harms situations, not just lesser harm (C
threatens to cut off D’s arm, unless D cuts off V’s arm; D can argue duress here,
even though harms are of equal severity).
2. And treating duress as a justification defense requires us to balance social harms
in a way that goes against moral intuition. (C threatens to cut of D’s child’s arm
unless D rapes V; how do we decide which social harm is worse – C cutting off
child’s arm, or D raping V?)
3. The real question is whether D should truly be blamed for his actions – excuse.
b. Necessity requires actor to make the correct choice of lesser evils; duress applies even if the
actor’s will is so overpowered that he makes the wrong choice, and perpetrates a greater evil.
i. Necessity: nobody should be punished when the actor commits the lesser evil because the
outcome is not socially undesirable. (Justification)
ii. Duress: coercer should be punished for the social harm that results from coerced party’s
actions, because there is a social harm. (Excuse)
c. Why it matters which defense is used:
i. Whether an actor is justified or excused sends a message.
1. Consider prison escape. If escapees use necessity as the defense in fleeing
intolerable conditions, then acquittal implies it is right, or at least not wrong, for a
prisoner to flee. If duress is used as the defense, acquittal only states that the
escapee should not be blamed.
a. Prison officials are likely to prefer duress defense, while prison reform
advocates will prefer necessity (justification).
2. Necessity will be harder to prove in prison escape: jury must balance evils, and
may conclude that it is better for a dangerous criminal to suffer in prison than to
be out in society, even if only briefly.
a. With duress, jury does not need to balance evils. Only question is whether
the conditions in the prison were so extreme and immediate that the
escapee should be excused.
3. Necessity will also apply to those who assist in an escape, while duress will not.
4. If escapee is excused, then escape is still a wrongful act, and prison guard may
use force to prevent the act. BUT, if escapee is justified, then escape is not a
wrongful act, and prison guard should not be able to use force in preventing the
escape.
d. Defendants should be able to assert both defenses. If a jury does not find that the defendant
chose the lesser of two evils, it could still find that the defendant should not be blamed.
29
 i. Would require duress to be allowed for non-human threats; OR require necessity to be
enlarged to include an excuse component to deal with natural forces that compel a person
to commit an equal or greater evil, not just a lesser evil.
1. BUT, this would mean that nobody will be punished for what we consider a
wrongful act (if natural threat recognized in duress, there is nobody to hold
accountable).
a. Compare to insanity defense, where nobody is punished for wrongful act
caused by mentally ill defendant.
b. Natural threat duress should excuse an actor if the threat is as compelling
as a human threat; should excuse in the same circumstances.

30
DURESS

1. Common law: a person will be acquitted of any offense except murder if the criminal act was
committed under the following circumstances:
a. Another person threatened to kill or grievously injure the actor or a third party,
particularly a near relative, unless the actor committed the offense;
i. Human threat.
ii. Threat must be death or SBI.
iii. Old common law required threat against person or family member. Modern courts reject
this.
b. The actor reasonably believed that the threat was genuine;
c. The threat was present, imminent, and impending at the time of the criminal act;
d. There was no reasonable escape from the threat except through compliance with the
demands of the coercer;
e. The actor was not at fault in exposing himself to the threat.
i. If actor joins a criminal organization that he knows or has reason to know is likely to
subject him to coercive threats at some point, cannot claim duress.
2. MPC: duress is an affirmative defense to unlawful conduct by the defendant if:
a. He was compelled to commit the offense by the use, or threatened use, of unlawful force by
the coercer upon him or another person; and
b. A person of reasonable firmness in his situation would have been unable to resist the
coercion.
i. Commentary: hypocritical to impose a standard on the actor that judges are not able to
affirm they should and could comply with.
c. Unavailable if the actor recklessly placed himself in a position to be coerced.
i. It is available if actor negligently placed himself in position, unless charged with a crime
for which negligence is sufficient for culpability.
d. Broader than common law.
i. No imminency requirement; and no requirement that threat be of deadly force.
1. May even claim duress as a result of prior non-deadly force.
ii. Available for murder.
iii. Still requires human threat, though.
iv. Under MPC, duress can be claimed when coercer’s unlawful force causes coerced actor
to commit a different criminal act (not one commanded by the coercer, as required in
CL).
1. So MPC duress applies in prison escape situation.
3. If duress defense is successful, coercer is the principal in the first degree, and coerced party is an
innocent instrumentality.
4. Is duress an excuse or justification defense?
a. Consider the rationale for excuse defenses:
i. Utilitarian:
1. Purpose of the system is deterrence: when a person acts under duress, the threat of
punishment is ineffective in deterring conduct.
2. Coerced party does not have a criminal disposition, so there is no point in
incapacitating or rehabilitating the coerced party; the coercer is the party that
needs incapacitation and rehabilitation.
3. Utilitarian argument against duress: the defense undermines the moral clarity of
the law and could result in fraud. A coercing party could confer immunity on his
agents and lead to widespread social harm.
ii. Retributivist:
1. A coerced actor does not deserve punishment.
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 a. Free choice theory:
i. Person may be blamed for conduct only if he/she had the capacity
and fair opportunity to function in a uniquely human way (freely
choose whether to violate the moral/legal norms of society.)
ii. Free choice exists if, at the time of the conduct, the actor has the
substantial capacity and fair opportunity to understand the facts
relating to the conduct; appreciate that the conduct violates
society’s mores; and conform his conduct to the dictates of the law.
b. Coerced actor does not have a fair opportunity to exercise his will to act
lawfully.
c. When a coerced actor complies with a threat that most people in society
would not have the moral fortitude to resist, it is not just to punish that
choice.
2. Character theory
a. Person’s moral character is central to the concept of deserved punishment.
b. Punishment should be proportional to wrongdoer’s moral desert, as
measured by the actor’s character.
3. Causation theory
a. Person should not be blamed for conduct if it was caused by factors
outside person’s control.
b. Thus, duress is an excuse defense:
i. The actor is non-deterrable, his choice is heavily circumscribed (could not exercise free
will), and he did not cause the harm (the coercer did).
5. Duress as a defense to homicide:
a. Generally, not available for intentional killings.
i. A few states allow reduction of murder to manslaughter if actor was coerced.
ii. Some states allow a person to use duress as a defense to a coerced felony, which could
then relieve the coerced actor of culpability under felony-murder.
iii. Some states disallow duress as a defense in all murders, regardless of the actor’s mens
rea.
b. Utilitarian: should duress be available for murder?
i. Yes: deterrence is just as ineffective for a coerced murderer as it is for any other coerced
actor, so duress should be available for coerced actors who kill.
ii. No: A person can choose to resist, and when the social harm is as great as it is in murder,
the law should require a person to choose to resist rather than to kill an innocent person.
1. BUT, this looks at duress as more of a justification (lesser evil) defense. The
question should be whether a person is excused.
c. Retributivist:
i. Does a person who unjustifiably kills (under duress) necessarily and unfailingly deserve
to be punished as a murderer?
1. Probably not – if a person of reasonable moral fortitude would comply with the
threat and kill an innocent person, why should we punish the coerced actor who is
no more deserving of punishment than any other person of reasonable moral
fortitude?
d. Duress compared to voluntary manslaughter:
i. If a person can mitigate murder to manslaughter when he kills in sudden anger, then a
person who kills out of fear should be allowed to do the same. (duress should mitigate
murder to manslaughter).
1. Difference is that in HoP manslaughter, the victim provoked his own death; in
duress, the victim is innocent.
2. BUT, focusing on whether the victim is to blame treats duress as justification.
32
 6. Should duress be available in natural threat situations?
a. This would mean that nobody will be punished for what we consider a wrongful act (if natural
threat recognized in duress, there is nobody to hold accountable).
i. Compare to insanity defense, where nobody is punished for wrongful act caused by
mentally ill defendant.
ii. Natural threat duress should excuse an actor if the threat is as compelling as a human
threat; should excuse in the same circumstances.
b. Without natural threat availability, odd results:
i. If D is compelled by C to run over V on mountain road, D can claim duress; but if D’s
brakes give out and she runs over V because she prefers killing V to dying herself, D
could be convicted of criminal homicide.
7. What about other types of “threats”?
a. X brainwashes D through physical and psychological force over the course of time to submit to
X’s beliefs. Then X non-coercively tells D to rob a bank out of devotion to these beliefs. Is this
duress?
i. MPC would likely allow this, as prior, non-deadly coercion can be used to show duress.
b. Battered woman’s syndrome: battered woman who commits a crime as a result of domination by
her abuser. Duress?
i. Woman may subjectively fear abuser even without express threat;
ii. Fear of imminent harm was reasonable;
iii. Failed to escape because of learned helplessness.
iv. MPC:
1. Prior threats as evidence of duress.
2. No imminency required by MPC.
3. Could use duress if self-defense fails in a non-confrontational killing of abuser.
a. Abuser’s prior use of force would cause a person of reasonable firmness in
her circumstances to kill her abuser.
4. But still have the issue of “reasonable person.”
a. Not subjective enough to encompass abused women. MPC calls for
reasonable to be objective here.

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NECESSITY V. DURESS – MPC & COMMON LAW
Duress Common Law Duress MPC
 Human threat
 Threat must be serious bodily harm or death
upon D or another
 This is the D’s will being overpowered
 Threat must be imminent with no reasonable
alternative but to comply with coercive threat
 D must not have gotten himself into the
predicament
 Traditionally not available for murder
 Human threat
 Threat must be unlawful force upon D or
another (does NOT need to be serious bodily
harm or death)
 D is compared to person of reasonable
firmness in D’s position in regards to the will
being overpowered
 Threat need not be imminent, can be as a
result of prior force
 D must not have gotten himself into the
predicament
 Available for murder

Necessity Common Law Choice of Evils MPC

 Traditionally not available for murder  Available for murder
 Traditionally available for natural threats only  Threat can be natural OR human
 Available only in an emergency, where the  No imminency requirement
harm to be avoided is imminent

Necessity Common Law Duress Common Law

 Justification
 Natural threat
 Threat can be less than serious bodily injury
or death
 Requires the D balance the two evils and
choose the lesser one
 Threat must be imminent and there must be
no alternative to the criminal act to avoid the
harm
 D must not have gotten himself into the
predicament
 Traditionally not available for murder
 Excuse
 Human threat
 Threat must be SBI or death
 No balancing required, this is the D’s will
being overpowered
 Threat must be imminent with no reasonable
alternative but to comply with the coercive
threat
 D must not have gotten himself into the
predicament
 Traditionally not available for murder

Necessity (choice of evils) MPC Duress MPC

 Threat can be human or natural
 Threat can be against property or person
 D must believe the harm he is avoiding is
greater than the harm he is committing, and
he must in fact choose the lesser of two evils
(subject to legislative/statutory provisions)
 Threat need not be imminent
 D must not have gotten himself into the
34
 Human threat
 Threat must be unlawful force upon D or
another person (does not need to be SBI or
death)
 D is compared with a person of reasonable
firmness in the D’s position regarding
overpowered will
 Threat need not be imminent
 predicament, but may still raise the defense if
he recklessly or negligently created the
predicament, for a crime requiring purpose or
knowledge
 Available for murder
35
 Defendant must not have gotten himself into
the predicament, and may NOT raise the
defense if he purposely, knowingly, or
recklessly created the predicament.
 Available for murder
FELONY MURDER

1. Common law:
a. First degree FM: A killing committed during the commission or attempted commission of an
enumerated (usually BARRK) felony.
b. Second degree FM: A killing committed during the commission or attempted commission of an
unenumerated felony.
c. Intent to commit the felony is treated as implied malice.
2. MPC:
a. Commission of enumerated felonies may be evidence of indifference to the sanctity of human life.
3. Felony-murder rule was abolished in England in 1957, never existed in France or Germany. Persists
only in the US, and is heavily criticized because it can result in a person being criminally liable when
they are not truly morally culpable.
4. Felony murder rule authorizes strict-liability for any death that occurs during the commission of a
felony: Felony murder rule applies whether a felon kills intentionally, recklessly, negligently, or
accidentally and unforeseeably.
a. Theoretically, a tax evader could be convicted of felony murder if an auditor reviewing his taxes has
a heart attack because the tax fraud is so egregious.
b. Prosecution does not have to prove mens rea. But mens rea is the sine qua non of criminal
culpability!
5. Arguments FOR felony murder rule (and responses):
a. Deterrence (utilitarian)
i. To deter felons from using force and to deter felons from committing inherently dangerous
felonies. Felons may still commit felonies, but they will act more carefully.
1. BUT, how do we deter unintended acts?
2. Homicides rarely occur during felonies, so felony murder rule will not actually cause
felons to act any differently.
3. Perhaps makes more sense to enhance the punishment for conduct which the felon
actually has control over, rather than elevating every death that occurs during a felony
to murder.
b. Reaffirming the sanctity of human life (retributivist)
i. A felony that results in death is more serious than a felony that does not result in death.
1. Felony-murderer has a greater debt owed to society than a regular felon.
2. BUT, even if a felon who accidentally kills should be punished more severely than a
felon who does not kill, it does not follow that a felon who accidentally kills deserves
the severe punishment reserved for murderers.
ii. A felon is acting with an evil mind, knows that he is acting in a dangerous manner.
1. BUT, felony murder involves two different social harms, and culpability for each
should be analyzed separately.
2. It violates the concepts of just deserts and proportional punishment to treat a felon
who unintentionally, non-recklessly, and non-negligently as equal to an intentional,
premeditated killer.
c. Transferred intent
i. Intent to commit a felony transfers to the homicide.
1. BUT, transferred intent does not apply when intent to commit social harm X results in
social harm Y.
2. Intent to commit a felony and the intent to commit murder have distinct mens rea
elements, so there should be no transferred intent.
d. Eases prosecution’s burden
i. Felony murder is a gift to the prosecution. Some see this as a pro, some see as a con.

36
 ii. Prosecution does not need to prove malice aforethought. All prosecutor needs to do is prove
D committed the felony and that a death occurred during its commission.
6. Limitations: (different in different jurisdictions)
a. Inherently dangerous felony (applies only to 2nd degree FM)
i. Some states limit the rule to homicides that occur during the commission of an inherently
dangerous felony.
ii. Courts either look at the statute in the abstract or in the particular to determine if it is
inherently dangerous. Courts that disapprove of the felony murder rule might lean towards
analyzing in the abstract, because it is easier to find non-inherently dangerous ways the crime
could be committed in the abstract.
iii. Some felonies have typically been deemed not inherently dangerous in the abstract: theft,
fraud, possession of a firearm.
1. This requires prosecution to prove mens rea if we say these are not inherently
dangerous.
iv. Inherently dangerous felony limitation brings felony murder very close to second-degree
extreme recklessness.
1. Extreme recklessness still requires conscious risk-taking, though.
b. Independent felony/merger doctrine (2nd degree)
i. A felony that is not independent of the homicide merges with the homicide and cannot be the
basis of a felony murder conviction.
ii. If the purpose of the underlying felony is to create injury (if the felony is assaultive in
nature), it will merge if a death results.
iii. Without this limitation, there would be no manslaughter (could find the underlying felony –
assault, assault with a deadly weapon, etc – and bump the murder up to felony murder AND
manslaughter is itself a felony). All assaultive conduct resulting in death would be
bootstrapped up to murder.
iv. This limitation is necessary if the purpose of the felony murder rule is to reduce the
likelihood of accidental death occurring during felonies.
1. If the felon’s purpose is assaultive, there is no way to convince the felon to carry it
out in a safer manner.
2. If felon’s purpose is independent, the deterrent effect would theoretically function
here to urge the felon to carry out his purpose in a safer manner (commit larceny
instead of robbery).
v. Some states enumerate specific felonies in their first-degree murder statutes to get around
this limitation (ie. Aggravated child abuse, which would merge if not enumerated).
c. Res Gestae (1st and 2nd degree)
i. Res gestae translates to “things done” and requires the death to occur during “things done in
furtherance of the felony.”
ii. There are both temporal and geographic requirements, when/where the felony begins and
ends.
1. Typically, a felony is considered to begin at the point at which a felon could be
prosecuted for an attempt to commit the felony, and ends when the felon reaches a
position of relative safety from law enforcement.
2. A killing committed while fleeing is still felony-murder.
3. Time: when the killing conduct occurs, not when the death occurs (if felon shoots
someone during felony and victim dies a month later, felon can still be charged with
felony murder).
iii. There is also a causal requirement: there must be a logical nexus between the homicidal act
and the felony.
1. The pilot of a plane carrying illegal drugs is not guilty of felony murder if co-pilot
dies during a crash that was caused simply by the weather.
37
 d. Who is the shooter? (1st and 2nd degree)
i. A felon may not be culpable for a killing committed during the felony, depending on who
actually caused the death. There are two approaches that jurisdictions use in determining
whether a felon is culpable for a death not directly caused by him.
1. The majority of jurisdictions apply the agency approach. A felon is only culpable for
the acts of another person if the person who causes the death is an accomplice
(someone acting as an agent of the original felon).
a. The original felon could still be culpable under 2nd degree depraved heart
murder, if the circumstances prove extreme recklessness.
b. Agency approach makes sense when we think about deterrence – felony-
murder rule has no deterrent effect when the shooter is a non-felon, because
felon has no control over non-felon’s actions.
2. Some jurisdictions apply the proximate causation approach. If the felon’s actions are
the proximate cause of a non-felon causing another’s death, then the felon is culpable
for that death.
a. If store clerk accidentally shoots and kills an innocent bystander in response to
being robbed by felon, felon is culpable for the death of that bystander,
because the clerk’s actions are a reasonable and foreseeable response to the
felon’s actions.
7. Don’t actually need felony murder:
a. Without felony murder, prosecutors could still charge felons for deaths that occur during the felony.
Can often charge with 2nd degree intent to cause GBH/SBI, 2nd degree depraved heart/extreme
recklessness, or involuntary manslaughter. We do not actually need felony murder to hold people
accountable for their actions.
8.

38
OMISSIONS

1. Should we hold people liable for the harmful results of their omissions?
a. Consider cases like:
i. Kitty Genovese (38 bystanders watched a woman get murdered, nobody helped or called the
police);
ii. An Olympic swimmer who fails to rescue a drowning child from a wading pool.
b. Here, there is a moral duty to act, but that does not necessarily create a concomitant legal duty
to act.
2. A person has no legal duty to act to prevent harm to another, even if the person can do so at no risk to
himself, and even if the person in danger of harm could be killed in the absence of assistance,
EXCEPT when there is a statutory duty to act, a contractual obligation to act, when the omitter has
voluntarily assumed care of another and thereby put him in a worse position, when the omitter has
created the risk, or when there is a status relationship requiring one party to act.
3. Is there actually a moral difference between an act and an omission?
a. In a civilized society, shouldn’t we require a person to help or summon help? It is morally repugnant
not to.
b. There is no meaningful difference between slamming a door shut to stop a child fleeing an animal
from entering, and failing to open a closed door for that child.
c. By not punishing omissions, we exonerate people who are guilty of moral indifference or even have
culpable mental states.
i. Imagine the Olympic swimmer who watches a child drown in a wading pool because she gets
a sadistic pleasure out of it. The swimmer could have saved the child at no risk to herself, and
has an extremely culpable mental state, but we cannot find her legally culpable.
d. Defense of omissions: there is a moral difference between an act and an omission.
i. Causing harm and allowing harm to occur are morally distinct.
ii. Individuals have individual responsibility. An individual who causes harm is not the same as
an individual who stands by.
iii. The duty to not make the world worse is more morally rigid than the duty to make the world
better.
4. Utilitarian argument AGAINST the omissions rule:
a. Failing to punish (most) omissions could be seen as cruel and callous, and could lead society to have
contempt for the criminal justice system. Bad for the goal of the social utopia.
b. Requiring people to help others in peril would promote social cohesion.
c. Requiring people to act could also have a deterrent effect: people may be deterred from criminal
conduct if they know that someone is likely to intervene.
5. Arguments IN DEFENSE OF the omissions rule:
a. Punishing omissions would create huge numbers of criminal prosecutions, resulting in backlog and
expense.
b. Where do we draw the line? Which omissions are morally culpable enough to result in prosecution?
The legislature could enact statutes, but they would likely be vague and difficult to interpret.
Ultimately police and prosecutors would have nearly unlimited discretion in choosing who to
prosecute, violating principles of legality and the Due Process Clause.
c. Proving mens rea for omissions would be problematic. Difficult to prove intent to kill when a person
merely fails to act. A person could fail to act thinking someone else will, or fail to act out of fear or
shock.
d. Proving causation is similarly problematic. Can an omission ever really cause a social harm?
e. Because it would be so difficult to establish mens rea and causation, it would be more likely that
juries would reach an incorrect decision on one of these elements. The risk of punishing a legally
innocent person would increase.

39
 f. Counter-utilitarian result of punishing omissions: People could intervene out of fear of criminal
responsibility for not acting, and end up causing more harm (provide bad medical aid, fire a weapon
unsafely). Or people could intervene in a lawful arrest by an undercover police officer.
g. There is a moral difference between an act and an omission.
i. Causing harm and allowing harm to occur are morally distinct.
ii. Individuals have individual responsibility. An individual who causes harm is not the same as
an individual who stands by.
iii. The duty to not make the world worse is more morally rigid than the duty to make the world
better.
h. Omission rule is consistent with the principle of autonomy. Our society values individual freedom
and limited government power over citizens, so the criminal justice system should not be used
indiscriminately. It is not the purpose of the criminal justice system to make people more moral, the
purpose is deterrence and punishment.
6. Common law: When there is a legal duty to act, and the omitter was capable of acting, the omissions
serves as a legal substitute for a voluntary act. If other elements of the offense are satisfied (omitter
caused the social harm with the requisite mens rea), omitter is culpable. Duty to act when:
a. Statutory duty to act.
i. Paying taxes; maintaining a license to drive; parents providing food and shelter for their
children.
ii. Some states have Good Samaritan Laws requiring citizens to assist a stranger in peril if the
person can do so safely.
1. Vague, difficult to enforce and know where to draw the line.
b. A duty to act has been created by express or implied contract.
i. Babysitter; home caretaker; medical provider
c. Where the omitter has voluntarily assumed care of another, even if there was no initial duty to
assume care.
i. Offer to drive drunk friend, X, home. X starts puking in car, so omitter leaves X by the side
of the road.
ii. Bringing sick person into your home and then failing to provide care. Secluding them from
the potential help of others.
d. After the omitter has created the risk, even if there is no liability for the act that created the
risk.
i. Omitter hits someone with car accidentally and then fails to provide help.
ii. Omitter must know that he created the risk.
e. The person is in a special status relationship with the person in peril.
i. Usually when one party is dependent on the other.
ii. Parent/child; doctor/patient; spouses; employer/employee; invitor/invitee
7. MPC: A person may be liable based on an omission if:
a. If the law defining the offense provides for it;
i. Eg “failure to control or report a dangerous fire”
b. Or if the duty to act is otherwise imposed by law.
c. A person is not required to act unless he is physically capable.
8. How do we distinguish acts from omissions?
a. What is the difference between failing to continue futile life-sustaining medical care and euthanasia?
i. Euthanasia is an act, requires the administration of drugs to bring about the death of
someone, this is an unlawful killing of a human being by another human being (murder).
ii. Cessation of life-sustaining efforts is an omission, and there is no legal duty to act to
continue providing futile care, so cannot support a charge of murder.
b. But are these really so distinct? Cessation of life-sustaining efforts still requires doctor to do the
voluntary act of turning off the respirator/stop providing nutrition.

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 i. Courts’ decisions to treat these distinctly is really more of policy decision than a legal
decision.
ii. Makes lawful a killing that is deemed excusable by society. But where do we draw the line?
iii. Even if we treat it as an omission, a doctor has a duty to act to provide medical care to
patients.
1. Courts have said that doctors’ duty to act is limited to ordinary medical care, not
extraordinary.
2. But how do we distinguish between ordinary and extraordinary medical care, as the
field of medicine changes?
c. Statutory interpretation – What we define as legal or not legal can affect fine line distinctions
between acts and omissions, and whether someone is culpable or not.

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