Common Law Homicide 1

OMISSIONS 4

Unintended Killing MPC 6

Process of Proof 6
Burden of Persuasion 7

Actus Reus 7

MENS REA 10

Specific and general intent 13

MPC Specific Intent: 13

STRICT LIABILITY 15
MPC Strict Liability 20

Mistakes of Fact 20
Specific-Intent Offenses 20
General Intent Offenses 20

MPC on Mistake of Fact 21

Legal-Wrong Doctrine 24

MISTAKE OF LAW 25

HOMICIDE 29

Provocation defense 31

MPC Unintended Killing 34

Theories of Punishment 36
 1

Common Law Homicide

Murder 1: a willful, deliberate, premeditated killing
● Must show evidence of premeditated intent to kill
○ Intent to kill:
■ Carroll jx: “no time is too short for a wicked man to frame in his mind the
scheme of murder”; no time is too short for premeditation
● spontaneous/impulsive killings can be murder 1
■ Guthrie jx: has to be reflection on intent to kill, evidence that D considered
and weighed decision to kill in order to establish premeditation
● So spontaneous killings don’t qualify as premeditated
● Key facts to consider: planning, motive, manner of killing
● If no prior reflection, → murder 2
○ How else can you rule intent to kill:
■ deadly weapon rule
● permissible inference (jury doesn’t have to find intent but can)
● If you find that a D used a deadly weapon on a vital part of victim’s
body, can infer that D had intent to kill
■ Attendant circumstances
● If enough evidence that, if put together, point toward intent to kill
■ Natural and probable consequences rule
● Permissible inference (can’t require jury to conclude intent to kill,
but they can)
● Arguing D did x, intended to do x, and the natural and probable
consequence of doing x is that the victim will die
Murder 2
1. Guthrie: intent to kill without reflection
2. Depraved heart murder
○ An extremely reckless disregard for the value of human life
○ an actor manifests an extreme indifference to the value of human life if he
consciously takes a substantial and unjustifiable foreseeable risk of causing
human death. In short, “depraved heart” equals “extreme recklessness.”
○ A person who acts with what the common law colorfully described as a “depraved
heart” or an “abandoned and malignant heart” is one who acts with malice
aforethought. If a person dies as a result of such conduct, the actor is guilty of
murder, although the death was unintended.
3. Intent to inflict grievous bodily harm/injury on another
a. injury “that imperils life,” “is likely to be attended with dangerous or fatal
consequences,” or is an injury that “gives rise to the apprehension of danger to
life, health, or limb.”
b. A person acts with malice aforethought if she intends to inflict grievous bodily
injury on another human being.
(first 1 is express malice, 2 and 3 are implied malice)

Manslaughter
Common law manslaughter: an unlawful killing of a human being by another human being
without malice aforethought

Voluntary manslaughter: Provocation (Heat of passion)

● An intentional, unjustified, inexcusable killing that would otherwise constitute murder can
be reduced to voluntary manslaughter when D is adequately provoked, kills under the

1
 2

influence of passion/in sudden heat of passion, when a reasonable person would have
been provoked, and a reasonable person would not have cooled.
● The provocation must be such that it might “inflame the passion of a reasonable man
and tend to cause him to act for the moment from passion rather than reason.” Or, the
provocation must be such that it “might render ordinary men, of fair average disposition,
liable to act rashly or without due deliberation or reflection, and from passion, rather than
judgment.”
● 2 approaches to the adequacy of provocation:
○ Girouard
■ Only certain circumstances can provide adequate provocation
● Extreme assault or battery, mutual combat, illegal arrest, injury or
severe abuse of a close relative, and catching spouse in the act of
infidelity
■ Words alone aren’t sufficient
● But words can be adequate provocation if they are accompanied
by conduct indicating a present intention and ability to cause D
bodily harm
○ Maher
■ Jury question- gives the question of adequacy of provocation to the jury
● Ordinary human nature should be taken as standard
■ Even in these jx, words alone may not be sufficient
● Insults typically are not sufficient
Involuntary manslaughter
● General rule: A person who kills another person in a criminally negligent manner is
guilty of involuntary manslaughter.
○ This offense often blurs into the depraved-heart version of reckless murder.
● Difference b/t the sort of reckless conduct required for depraved heart killing (M-2) and
involuntary manslaughter is “one of degree rather than kind” (Fleming)
● Reckless or grossly negligent conduct but does not demonstrate malice
(recklessness with extreme indifference to human life)
○ But if furious beating and lack of justification, prob demonstrates malice → M2
● Criminal negligence, “negligence +”, more than ordinary/civil negligence
○ Welansky (club burning down)
● Some states apply the doctrine to all misdemeanors, as well as to any felony that is
excluded from the felony-murder rule due to a limitation on the felony-murder rule. A few
jurisdictions go so far as to apply the doctrine if the conduct that causes the death is
wrongful (immoral), albeit not illegal.
● Some jurisdictions limit the rule to mala in se misdemeanors, such as petty theft, or to
“dangerous” misdemeanors, i.e., offenses entailing “a reasonably foreseeable risk of
appreciable physical injury.”

MPC Criminal Homicide

Murder:
(1) Guilty of criminal homicide if purposely, knowingly, recklessly or negligently causes
the death of another human
(a) Divided into murder, manslaughter, & negligent homicide

2
 3

(2) Murder when

(a) It is committed purposely or knowingly; or
(b) Committed recklessly under circumstances manifesting extreme indifference to
the value of human life
(i) Such recklessness and indifference are presumed if the actor is engaged
or is an accomplice in the commission or attempting to commit robbery,
rape or deviate sexual intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape
(c) Differences between MPC and common law:
(i) No malice aforethought term in MPC
(ii) No degrees in MPC
(3) Manslaughter:
(a) Criminal homicide constitutes manslaughter in 2 circumstances
(i) It is committed recklessly;
1) The difference b/t reckless manslaughter and reckless murder is
that for manslaughter the conduct, although reckless, does not
manifest an extreme indifference to human life
2) The MPC defines manslaughter in terms of recklessness and
defines recklessness in terms of conscious disregard of a
risk
3) Hall: consciously disregarded substantial and unjustifiable risk
(ii) A homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse
1) Cassassa: EED, defense; words alone can suffice
2) The reasonableness of such explanation or excuse shall be
determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believes them to be
3) Comparison to common law
a) The EMED provision is “wide open:” The MPC permits a
jury, if it chooses to do so, to reduce the offense to
manslaughter without considering the rigid common law
categories of adequate provocation;
b) also, “words alone” can qualify. Indeed, the defense
applies even if there is no provocation at all, as long as the
jury concludes that there is a reasonable explanation or
excuse for the actor’s EMED.
c) There is also no “reasonable cooling off” requirement.
d) The Code provides that the reasonableness of the
defendant’s explanation or excuse for the EMED should be
determined from the perspective of a person “in the actor’s
situation under the circumstances as he believes them to
be.” This allows for considerable subjectivization of the
objective standard, although the Commentary to the Code

3
 4

concedes that the words “in the actor’s situation” are

“designedly ambiguous,” so as to permit common law
development of the subjective/objective issue.
(4) Negligent homicide:
(a) A criminally negligent killing (involuntary manslaughter at common law) is the
lesser offense of “negligent homicide” under the MPC

OMISSIONS
➢ Normally no legal duty to act to prevent harm to someone else, even if such failure
permits harm to occur to another, even if could act at no risk to personal safety
➢ Only under certain circumstances
○ 4 situations in which failure to act may constitute breach of legal duty
■ 1. Where a statute imposes a duty to care for another
■ 2. Where one stands in a certain status relationship to another
● Dependency or interdependency, such as parent-to-child,
spouse-to-spouse, and master-to-servant
■ 3. Where one has assumed a contractual duty to care for another
● (generally doesn’t require a written contract)
■ 4. Where one has voluntarily assumed the care of another and so
secluded the helpless person as to prevent others from rendering aid
■ *5. If you create the harm
➢ Mens rea: wanton and reckless conduct
➢ Actus reus:
○ voluntary act or legal omission (like failure to get help)
○ And social harm caused
○ Causation
■ If mens rea can be established, next have to prove causation
■ P has to establish that but for the omission (for omission cases), the
victim would not have died
● Ex. but for the mother’s omission (failure to complete the first 911
call), the father would have lived
● But father lived only 3 min past first call
● P would have to establish that paramedics could have gotten to
and saved the father in that 3 minutes (unlikely), otherwise P can’t
prove that the mother’s omission caused the father’s death
○ If can’t establish causation, not liable for the death regardless of mens rea
➢ Jones v United States: D found guilty (in trial court) of involuntary manslaughter for
failure to provide for a 10 month old baby
○ Rule: People v Beardsley: in some circumstances the omission of a duty owed by
one individual to another, where such omission results in the death of the one to
whom the duty is owed, will make the other chargeable with manslaughter
■ Must be a legal duty and not a mere moral obligation
■ Must be a duty imposed by law or contract, and the omission to
perform the duty must be the immediate and direct cause of the
death
● Must be proved that if the person had acted, it would have made a
difference

4
 5

○ Involuntary manslaughter:
■ Any person who negligently or recklessly causes death of another human
being
■ Different mental states will result in different charges
■ Legal duty of care is critical, and court has to instruct the jury regarding
that
■ Contractual duty in general does not require a written contract

➢ Pope v State: D took in mother and child, mother abused and killed child, D did nothing
and was charged with child abuse and misprision of felony
○ Court ruled that even though may be moral obligation to intervene, they cannot
hold the moral obligation to mean legal responsibility
○ In that case, under Md. law, person would have to be the parent, adoptive parent,
or in loco parentis to, the child being abused
➢ MPC on omissions: not significantly different from common law
○ A person is not guilty of any offense unless their conduct “includes a voluntary
act of the omission to perform an act of which he is physically capable”
○ Liability based on omissions permitted in 2 circumstances:
■ (1) if the law defining the offense provides for it
■ (2) if the duty to act is “otherwise imposed by law”
➢ Medical Omissions
○ Turning off life support machine is merely omitting future medical care
○ Omission not act
○ Barber v. Superior Court: pulling plug is an omission not act
■ Doctor has not duty to care for patient when it has proved to be ineffective
■ Pulling the plug was discontinuing treatment, no culpability unless duty to
act, and no duty to act when it would be ineffective treatment
➢ Cases
○ State v Williams
■ “The omission of a duty is in law the equivalent of an act and when death
results, the standard for determination of the degree of homicide is
identical” p513
○ Walker
■ religious mother wanted to treat sick daughter with prayer, daughter died
■ guilty of involuntary manslaughter? yes

Actus reus
● Ex: The mother would be liable on an omission theory: She didn’t assault the father, but
she failed to summon help while the father was still breathing, and as his wife she had a
duty to help him.
Mens rea
● Ex: The MPC defines manslaughter in terms of recklessness and defines recklessness
in terms of conscious disregard of a risk. Here, the risk would be of death. Did mother
consciously disregard a risk that her husband would die unless she obtained help for
him? The prosecution will argue that mother was aware that the father was fighting for
his life, because she called 9-1-1 and “excitedly” reported that the father was
semi-conscious, bleeding, and gasping for breath. She did not call and report with

5
 6

resignation that her husband was about to expire. Mother will argue that she did not
consciously disregard the risk of the father’s death, because she believed he was
beyond life-saving measures from the moment she discovered him on the den floor. She
spoke “excitedly” to the 9-1-1 operator, because she had just discovered her husband at
death’s door.
Causation
● Ex: Assuming the requisite mens rea can be established, causation is an issue. The
prosecution has to establish that but for the mother’s omission (failing to complete the
first 9-1-1 call), the father would have lived. The father lived only three minutes beyond
the first 9-1- 1 call. Unless the prosecution can establish that paramedics could have
reached and saved the father in that time frame (and that seems unlikely), the
prosecution cannot prove that mother’s omission was the cause of father’s death.
Conclusion
● Ex: Assuming causation cannot be established, mother is not liable for the father’s death
no matter what her state of mind.

Unintended Killing MPC

MPC: unintended killing is murder when committed recklessly and under circumstances
manifesting extreme indifference to the value of human life
- The first judgement must be made in terms of whether the actor’s conscious disregard of
the risk, given the circumstances of the case, so far departs from acceptable behavior
that is constitutes a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation
- Ordinary recklessness, in this sense, is made sufficient for a conviction of
manslaughter
- But for murder, MPC calls for further judgement whether actor’s conscious
disregard of the risk, under the circumstances, manifests extreme indifference to
the value of human life
- Purposeful or knowing homicide demonstrates precisely such indifference
to the value of human life
- Recklessness:
- If it can be assimilated to purpose or knowledge, → murder
- Less extreme → manslaughter

Process of Proof
➢ In Re Winshop: in all criminal cases, fact finder must find a verdict to be beyond a rx
doubt for every fact necessary to constitute the crime with which charged
○ Liberty of D is at stake (and interests of community)
○ Stigma attached
○ US values individual rights over community obligations
Right to Trial by Jury
➢ Duncan v. Louisiana: court ruled that denial of jury trial violated D’s rights guaranteed by
constitution; right to jury trial is granted to criminal Ds in order to prevent oppression by
the govt

6
 7

Jury Nullification
➢ 2 types of challenge when selecting a jury
1. Challenge for cause (unlimited)
a. If they can’t be fair in this case- bias, prejudice, prior knowledge
2. Peremptory challenge (limited to 10)
a. You can challenge a juror for any reason or no reason at all (can basically
make up any reason)-racial bias
➢ US v. Dougherty:
○ court ruled that judges are not required to disclose in judge’s charge that jury has
a prerogative of nullification
○ Court conceded that the power of nullification is a necessary counter to
case-hardened judges and arbitrary prosecutors, and that it may enhance the
overall normative effect of the rule of law

Burden of Persuasion
➢ Leland v. Oregon: Established that it was okay to shift the burden of persuasion to
D in an affirmative defense (insanity in the case, said nothing wrong with it bc it had
nothing to do with the actual guilty finding (since P had already proven D guilty beyond
rx doubt)
➢ Patterson v. New York: (argued for emotional distress defense) Court ruled that the D,
when asserting an affirmative defense, bears the burden of persuasion of the
evidence, unless the affirmative defense is a presumed element of the offense
under the statute.
○ The Due Process clause requires that the prosecutor bear the burden of
persuasion beyond a RD ONLY IF the factor at issue makes a substantial
difference in punishment and stigma (example would be the difference between
innocent and guilty)…substantial difference in punishment is not enough

Actus Reus
➢ Definition: voluntary act that causes social harm
○ “Physical, or external, component of a crime that society does not want to occur”
○ 2 components (both must be proved beyond rx doubt)
■ Voluntary act or legal omission
■ Social harm
➢ Can’t be punished for thoughts alone; must be an act:
○ premised on retributivist belief
➢ The act: a bodily movement or muscular contraction
➢ Voluntary: narrow meaning - has to be of our own volition.
○ Habitual act → voluntary. All conduct the statute addresses must be voluntary
➢ A “voluntary act” is a willed muscular contraction or bodily movement by the actor. An act
is “willed” if the bodily movement was controlled by the mind of the actor
➢ MPC
○ The MPC does not define “voluntary act.” It provides examples of involuntary
actions:

7
 8

■ a reflex or convulsion;
■ bodily movement while unconscious or asleep;
■ conduct during hypnosis or as a result of hypnotic suggestion; and/or
■ “a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.”
➢ *To be guilty of an offense, it is sufficient that the person’s conduct included a voluntary
act. It is not necessary that all aspects of his conduct be voluntary.
➢ Rationale of voluntary act requirement
○ Utilitarian
■ A person who acts involuntarily cannot be deterred. Therefore, it is
useless to punish the involuntary actor. It results in pain without the
benefit of crime reduction.
○ Retribution
■ A more persuasive justification for the voluntary act requirement is that
blame and punishment presuppose free will: a person does not deserve
to be punished unless she chooses to put her bad thoughts into action.
○ Social harm categories
■ Result elements
● Ex. death
■ Conduct elements
● Ex. drunk driving
■ Attendant circumstance elements
● Result or conduct is not an offense unless certain attendant
circumstances exist.
● Attendant circumstance: fact that exists at the time of the actor’s
conduct, or at the time of a particular result, and which is required
to be proven in the definition of the offense
➢ Martin v State:
○ (arrested D and took him to public highway, charged with being drunk in public)
○ The claim cannot be established by proof that was involuntary, and D being
forcibly taken to the highway was not voluntary.
○ Criminal liability must always require an actus reus which is the commission of
some voluntary act that is prohibited by law
○ A person must voluntarily commit the crime charged
○ Conduct elements
■ ‘Appears in public’ and ‘manifests a drunken condition’=
○ Attendant circumstances
■ “while intoxicated,” “where one or more are present” or “in public”
■ Need to prove beyond a reasonable doubt
○ The conduct that causes the result has to be voluntary
○ Ex. man charged for having a gun in public when police officer asked him to step
outside his house, frisked him, and found a gun
■ It was voluntary even tho the cop asked him to step out
○ MPC211

8
 9

➢ Involuntary acts: reflexive actions, spasms, seizures, convulsions, and bodily

movements while the actor is unconscious or asleep
○ When person claims the involuntary act defense, they are conceding that it was
their own body that made the motion, but deny responsibility for it
■ Involuntary acts are never blameworthy
○ People v. Newton: (charged w murder of cop) D said he was unconscious,
evidence shown, court ruled that D must have had compete consciousness to be
guilty
■ Prejudicial error bc judge refused a requested jury instruction where
evidence of involuntary unconsciousness has been produced in a
homicide prosecution and would act as a complete defense if found to
have existed.
○ Failure of proof defense: one of elements of prosecution’s defense has not been
proven beyond a rx doubt

○ Unconscious act - defined - burden of proof

■ A person who commits what would otherwise be a criminal act, while
unconscious, is not guilty
■ Unconsciousness does not require that a person be incapable of
movement
■ If evidence raises a reasonable doubt that D was in fact conscious, you
must find that they were then unconscious
○ Newton in light of justifications for punishment
■ Utilitarianism
● The purpose of all laws is to provide a net benefit to society
● Punishment or threat of punishment should be used to deter future
crimes
● Views people as rational, hedonistic, can do the utilitarian
calculation and decide to avoid committing crimes due to the
consequences
● deterrence:
○ individual/specific deterrence
○ General deterrence
○ Incapacitation
● Some say should disallow this defense bc there will be fake claims
of unconsciousness and this will limit that

➢ Special cases
○ Hypnotism and sleepwalking (Cogdon case where mom killed daughter while in a
sleep state): legally involuntary
■ No moral blameworthiness
○ Seizures/medical episode (like epilepsy): would be a valid defense if it hadn’t
happened before, but if it did happen before, not a defense
■ People v. Decina
➢ Voluntary act exceptions:
crimes of possession- does not require D to act, only to passively possess the
prohibited objects.

9
 10

Real purpose is to provide police with a basis for arresting those whom they
suspect will later commit a socially injurious act
○ Courts usually require proof that D knowingly procured or received the property
possessed, or that they failed to dispossess themselves of the object after they
became aware of its presence
➢ MPC: cannot be convicted of a crime in the absence of conduct that “includes a
voluntary act or the omission to perform an act of which he is physically capable”
○ Exceptions: 2.05(1) of MPC: requirements do not apply to offenses that constitute
“violations,” - offense for which maximum penalty is a fine or civil penalty

MENS REA
➢ Actus reus + mens rea → social harm
➢ Mens rea: “guilty mind”, moral blameworthiness
➢ Definition: the particular mental state provided for in the definition of the offense
➢ Rationale:
○ Utilitarian Argument
■ It is frequently asserted that a person who commits the actus reus of an
offense without a mens rea is not dangerous, could not have been
deterred, and is not in need of reform. Therefore, her punishment would
be counter-utilitarian.
○ Retributive Argument
■ The mens rea requirement is solidly supported by the retributive principle
of just deserts. A person who commits the actus reus of an offense in a
morally innocent manner, i.e., accidentally, does not deserve to be
punished, as she did not choose to act unlawfully
➢ Purposely/intentionally, knowingly, recklessly, negligently, strict liability
➢ Regina v. Cunningham
○ D ripped gas meter from pipe and stole it, releasing coal gas into the next house
and partially asphyxiating the neighbor
○ Possibilities and categories:
■ A. D wanted Mrs. Wade to inhale the poison gas. Purposely
● Best argument to prosecute - motive
■ B. D hoped that by some miracle Mrs. Wade would not inhale the poison
gas, but he knew it was virtually certain she would. Knowingly
● Best argument to prosecute - that it has happened before
■ C. D did not know for sure that Mrs. Wade would inhale the poison gas,
but he considered the possibility and decided to take the chance.
Recklessly
● Best argument - signs, other evidence that it crossed his
mind
■ D. D did not consider the possibility that Mrs. Wade might inhale the
poison gas, but if he had used his common sense he would have realized
that this was a significant risk. Negligently

■ E. Whether or not D realized or should have realized the risk, D caused

10
 11

Mrs. Wade to inhale the poisonous gas. Strict Liability

■ Difference between a, b,c and d, e:
● A-c are subjective mental states
● Default mental state: recklessly or above
➢ Intentionally:
○ a person intentionally causes the social harm of an offense if it
■ (1) is their desire or
■ (2) they act with knowledge that the social harm is virtually certain to
occur as a result of their conduct
○ Transferred intent: attributes liability to “bad aim” D, who intends to kill or injure
one person but accidentally kills or injures someone else
■ ‘Transfers’ the actor’s state of mind regarding the intended victim to the
unintended one
■ D is as culpable as if D had accomplished what they originally intended
➢ Knowingly:
○ A person who knowingly causes harm is said to have intended the harmful result
or conduct
○ Knowledge of material fact (attendant circumstance) is also required
○ Person has knowledge of the material fact if they
■ (1) are aware of the fact and
■ (2) correctly believe the fact exists
■ Or (3) suspects that the fact exists and purposely avoids learning if her
suspicion is correct (willful blindness) → most jx
○ Most jx also permit a finding of knowledge of an attendant circumstance when
actor is guilty of willful blindness or deliberate ignorance
■ Exists if actor (1) believes there is a high probability that the fact
(attendant circumstances) exists and (2a) takes deliberate action to avoid
confirming the fact, or (2b) purposely fails to investigate in order to avoid
confirmation of the fact
■ US v Jewell: entered US with 110 pounds of weed in car, only
circumstantial evidence to infer that D knew of the presence
● Court found that deliberate ignorance and positive knowledge are
equally culpable
● To act knowingly is not necessarily to act only with positive
knowledge, but also to act with an awareness of the high
probability of the existence of the fact in question
➢ Risk-Taking: Recklessness and Criminal Negligence
○ Justifiable or not?
■ Factors
● Gravity of harm that a rx person would foresee might occur as the
result of the risk-taking conduct
● Probability that this harm will occur
● Reason for the proposed conduct
○ I.e. benefit to the individual or society of taking the risk

11
 12

■ Risk is unjustifiable if the gravity of the foreseeable harm, multiplied by

the probability of its occurrence, outweighs the foreseeable benefit from
the conduct
○ Criminal negligence
■ A person acts in a “criminally negligent” manner if she should be aware
that her conduct creates a substantial and unjustifiable risk of social harm
● Aka “gross negligence,” “culpable negligence,” “negligence plus”
○ Recklessness
■ Holmes’s View
● a person acts “recklessly” if she should be aware that she is taking
a very substantial and unjustifiable risk. This is simply a
heightened version of “criminal negligence.” Notice: “civil
negligence” involves unjustifiable risk taking; “criminal negligence”
is substantial and unjustifiable risk taking; and “recklessness” (as
defined here) is very substantial and unjustifiable risk-taking.
■ Modern Definition
● Most courts now provide that a person acts “recklessly” if she
consciously disregards a substantial and unjustifiable risk
that her conduct will cause the social harm of the offense. Under
this definition, “recklessness” differs from “criminal
negligence” in that it requires that the actor subjectively be
aware of the substantial and unjustifiable risk.
○ Malice
■ A person acts with “malice” if she intentionally or recklessly causes the
social harm of an offense, as the latter mens rea terms are defined above.
➢ Recklessly: requires proof that actor disregarded a substantial and unjustifiable risk of
which they were aware
○ Subjective fault
➢ Criminal negligence: guilty if take substantial and unjustifiable risk of causing the social
harm that constitutes the offense charged
○ Objective fault- not blamed for wrongful state of mind but for their morally
blameworthy failure to realize they are taking an unjustifiable risk
➢ Regina v Cunningham: (ripped gas meter from basement, partially asphyxiated
neighbor): no mens rea to cause the harm to the neighbor
○ But should be left to the jury to decide whether there was culpability in case
where injury was unintended
➢ Regina v Faulkner: stole rum, lit match to see, ship burned down; no mens rea
➢ Statutory interpretation: general rule: if statute is not clear on its face, courts will seek to
interpret it in the manner that best gives effect to the legislative intent
○ Elonis v United States: when statute lacks mens rea element, it must default to
recklessness standard or higher

12
 13

➢ Specific and general intent

○ General intent: refers to any offense for which the only mens rea required is a
blameworthy state of mind; an offense that only requires proof of mens rea in the
culpability sense; negligently, recklessly, knowingly
■ Any offense that requires proof of a culpable mental state, but which does
not contain a specific intent, is a “general intent” offense. Sometimes,
such an offense will have no explicit mens rea term in the definition of the
offense; it is enough that the defendant committed the actus reus with any
culpable state of mind.
○ Specific intent: expressly requires proof of a particular mental state; require
mens rea in the elemental sense; purpose; definition of the crime:
■ (1) requires proof of an intention by the actor to perform some future act
or achieve some further consequence, beyond the conduct or result that
constitutes the social harm (actus reus) of the offense; (2) require proof of
some special motive for the conduct; or (3) provides that the actor must
be aware of a statutory attendant circumstance
➢ MPC Specific Intent:
○ Exclusively elemental approach to mens rea
○ Section 2.02: subsection (1): except in the case of offenses characterized as
“violations,” a person may not be convicted of an offense unless “he acted
purposely, knowingly, recklessly, or negligently, as the law may require,
with respect to each material element of the offense”. The legislature may
choose to require different levels of culpability for each material element.
○ Need to prove mens rea for every material element (ones that speak to the
harm or evil that the statute seeks to prevent)
■ Material element under MPC: conduct, circumstances and results
○ Material element of the offense: elements relating to the existence of a
justification or excuse for the actor’s conduct
○ Role of Mens Rea
■ In general, the MPC requires proof of mens rea.
■ More significantly, it requires proof of some particular mens rea—purpose,
knowledge, recklessness, or negligence—as to each material element of
the offense.
■ This contrasts with the common law, where there might be a mens rea
requirement as to one element but no mens rea required as to other
elements.
■ In other words, with the MPC, each actus reus element should be
“covered” by some mens rea requirement
○ “Purposely”:
■ A person causes a result “purposely” if it is their “conscious object to
engage in conduct of that nature or to cause such result”.
■ A person acts “purposely” with respect to attendant circumstances if they
“are aware of the existence of such circumstances or they believe or hope
they exist.”

13
 14

■ MPC follows the common law “transferred intent” doctrine (covered in

MPC 2.03(2)(a)). It provides that when purposely causing a particular
result is an element of an offense, that element is established if the
“actual result differs from that designed or contemplated…only in respect
that a different person or different property is harmed.” This section of the
MPC also provides that a D is not relieved of liability for an offense if less
harm occurs than it was the actor’s conscious object to cause.
○ “Knowingly”
■ A result is “knowingly” caused if the actor “is aware that it is practically
certain that his conduct will cause such a result.” With attendant
circumstances and conduct elements, one acts “knowingly” if they are
“aware that their conduct is of that nature or that such attendant
circumstances exist.”
■ In order to deal with the problem of “willful blindness” the MPC includes a
provision that states that knowledge is established if “a person is aware of
a high probability of…the attendant circumstance’s existence, unless he
actually believes that it does not exist.”
○ “Recklessly”
■ The MPC provides that a person acts “recklessly” if he “consciously
disregards a substantial and unjustified risk that the material element
exists or will result from his conduct.”
■ A risk is “substantial and unjustifiable” if “considering the nature and
purpose of the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard or conduct
that a law-abiding person would observe in the actor’s situation.
■ Also apply the standard of measuring the gravity of foreseeable harm,
probability of its occurrence, and the reasons for taking the risk
○ Difference between Negligently and Recklessly: The reckless actor
“consciously disregards” the risk.
○ “Negligently”
■ the actor “should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct.”
■ This is a risk that constitutes a “gross deviation from the standard of care
that a reasonable person would observe in the actor’s situation”
■ The definition of “substantial and unjustifiable” is the same as that
provided for in the definition of “recklessness,” except that the term
“reasonable person” is substituted for “law-abiding person.”
■ The critical difference between recklessness and negligence under the
Code is that in the former case, the actor is consciously aware of the
substantial and unjustifiable risk, but proceeds anyway; in the case of
negligence, the actor is not aware of the risk, but should be.
○ Interpretative rules
■ Default position
● The MPC requires some mens rea term for each element of an
offense (§ 2.05 aside). If the statute defining an offense is silent

14
 15

regarding the issue of mens rea as to one or more of the actus

reus elements, the Code provides that “such element is
established if a person acts purposely, knowingly, or recklessly
with respect thereto.” In essence, you fill in the blank with
“purposely, knowingly, or recklessly”
■ When only 1 mens rea
● If the definition of a MPC statute only sets out a single mens rea
element in the definition of the offense, that mens rea term applies
to every material element of the offense, unless a contrary
legislative intent “plainly appears.”
○ Default position: recklessness
■ Examples: Burglary statutes NY vs. CA p276
● NY Elements (2.024)
○ “Knowingly enters or remains unlawfully” - conduct
○ “With intent to commit a crime therein” - conduct
○ Mens rea: knowingly
■ On top of that mens rea, need other mens rea:
intent to commit a crime... (specific intent)
○ Harm: breaking and entering
● CA Elements (2.023)
○ Statute does not say anything about mens rea needed
■ So assume default position - recklessness
○ “With intent to commit grand or petit larceny or any other
felony”
■ Specific intent
● Commercial burglary example - didn't realize it was a residence
○ Doesn’t have the level of blame of a residential burglary
since didn’t consider the possibility, might be found not
guilty of residential burglary but just of commercial burglary

STRICT LIABILITY
➢ Strict liability offenses: do not require a mens rea requirement regarding one or more
elements of the actus reus
➢ An offense is strict liability in nature if commission of the actus reus of the offense,
without proof of a mens rea, is sufficient to convict the actor
➢ Most often applies to public welfare offenses
➢ Public welfare offenses: contain no express mens rea requirement
○ Typically involve malum prohibitum conduct: conduct that is wrong only bc it is
prohibited (ex motor vehicle laws)
■ (different than malum in se - inherently wrongful conduct)
■ Ex: sale of impure food or drugs to the public, anti-pollution environmental
laws, traffic and motor vehicle regulations, illegal sales of intoxicating
liquor, Sales of misbranded articles, Violations of antinarcotic acts,
Criminal nuisances, Violations of general police regulations.
➢ Punishment:
○ Usually a minor penalty like a monetary fine or very short jail sentence

15
 16

➢ Degree of social danger

○ Single violation often threatens the safety of many people
■ E.g. transportation of explosives on a highway not designated for such
use
➢ Reasons why public welfare offenses are strict liability:
○ Public welfare offenses are not derived from common law
○ A single violation of such an offense can simultaneously injure a great number of
people, which may explain the legislature’s desire to disregard questions of
personal moral guilt, in favor of a ”sense of the importance of collective interests”
○ The standard imposed by the statute (e.g. “do not sell alcohol to minors,” or “be
in possession of an expired license when driving a motor vehicle”) is reasonable
○ The penalty for violation is relatively minor, sometimes only involving a fine
○ Conviction rarely damages the reputation of the violator

➢ On rare occasions, non-public welfare offenses are considered strict liability in nature
○ Most common ex- statutory rape
➢ For rape prosecutions now, more than 20 states permit the defense if mistake at least
under some circumstances
○ But nearly all the states allow it only when the mistake is reasonable
➢ MPC provides for strict liability when criminality in a sexual offense turns on a child’s
beling below the age of 10
○ If greater than 10, MPC treats mistake as an affirmative defense on which the D
must carry the burden of proving that the mistake was reasonable
➢ Strict liability cases: liability imposed without any demonstrated culpability, not even
negligence, with respect to at least one of the material elements of the offense
○ In cases so far, courts considered it essential that there was at least some sort of
mens rea in a general sense - some sort of legal or moral fault
○ This section: more extreme form of SL - where D neither knew nor had any
reason to know that anything about their behavior was legally or even morally
wrong
➢ Strict liability doctrine: rule of criminal responsibility that authorizes the conviction of a
morally innocent person for violation of an offense, even though the crime, by definition,
requires proof of a mens rea
➢ Only accept a statute (strict liability on its face) as truly strict if there is clear evidence of
legislative intent to dispense with the culpability requirement
➢ Holdridge v. US: various factors that may overcome the presumption against strict
liability:
○ The statutory crime is not derived from the common law
○ There is an evident legislative policy that would be undermined by a mens rea
requirement
○ The standard imposed by the statute is “reasonable and adherence thereto
properly expected of a person”
○ The penalty for violation of the statute is small
○ A “conviction does not gravely besmirch” the D
➢ US v Balint:
○ sale of derivatives of opium and coca leaves w/o the required order form

16
 17

○Court ruled knowledge was not required by the statute reasoning regulatory
measures have “police power” where the emphasis of the statute is evidently
upon achievement of some social betterment rather than the punishment of the
crimes as in cases of mala in se (wrong or evil doing in itself).
○ Ds argued that the indictment was defective for failing to charge that they
knew they were selling prohibited drugs
○ SC held that proof of such knowledge was not required by the statute
○ Said that the act’s purpose was to require every person dealing in drugs to
ascertain at their peril whether what they sell comes within the inhibition of the
statute, and if they sell the drug in ignorance of its character, to be penalized
○ Said they’d rather avoid “the evil” of subjecting innocent purchasers to danger
from the drug over subjecting an innocent seller to a penalty
○ When Congress addresses a policy to be for the betterment of society
through regulatory legislation, the guilty party can be held strictly liable.
➢ US v Dotterweich: pharmaceutical company mislabeled drugs they were reselling
○ Court affirmed, found that the statute required no mens rea at all with respect to
whether those charged knew or should have known the shipment was
mislabeled.
○ Penalties serve as effective means of regulation; such regulations dispense
with the conventional requirement for criminal conduct.
○ The act, “in the interest of the larger good … puts the burden of acting at a
hazard upon a person otherwise innocent but standing in responsible relation to a
public danger”
■ Congress preferred to place the hardship “upon those who have at least
the opportunity of informing themselves of the existence of conditions
imposed for the protection of consumers before sharing in illicit
commerce, rather than to throw the hazard on the innocent public who are
wholly helpless”
➢ Non-public welfare offenses
○ Don’t require proof that D possessed a mens rea regarding a material element of
the offense
○ Ex statutory rape: can be convicted even if honestly and rxly believed the victim
was old enough to consent
○ Morissette v US
■ Conversion of gov’t property
■ SC reversed, concluding that D must be proven to have had knowledge of
the facts that made the conversion wrongful (that the property had not
been abandoned by its owner)
■ abandonment defense
● (if it is abandoned, he is not depriving anyone of property, so not
stealing)
■ Cases that aren’t public welfare offenses should always be held to a
mental element requirement, even if the statute omits such language
○ Difference between public welfare strict-liability and non-public welfare
strict-liability: public welfare crimes usually carry only minor penalties, but
non-public welfare strict-liability offenses often result in severe punishment.

17
 18

■ Also: non-public welfare strict-liability offenses typically involve conduct

considered malum in se.
● Violations of those laws are stigmatized despite the absence of
proven moral fault
● Malum in se offenses: embezzles, steals, purloins, or
knowingly converts (US property)
● “Public welfare offenses”
○ Many violations result in no direct or immediate injury to
person or property but merely create the danger or
probability of it which the law seeks to minimize
○ Whatever the intent of the violator, the injury is the same,
and the consequences are injurious or not according to
fortuity
○ Hence, legislation applicable to such offenses, as a
matter of policy, does not specify intent as a
necessary element
■ “The accused is usually in a position to prevent the
violation with no more care than society might
reasonably expect and no more exertion than it
might reasonably exact from one who assumed his
responsibilities”
○ Staples v US:
■ Semi-automatic turned to automatic gun
■ Court ruled that the modification to the gun was NOT a strict liability
offense even though it was a public welfare offense reasoning that the
penalty was not insignificant (jail time, large stigma if convicted, felony
offense) and the conduct was otherwise innocent and the activity was not
highly regulated
● Court construed the statute in light of the rules of common law,
which requires some mens rea for a crime
■ Q of statutory construction: does 5861(d) require proof that D knew of the
characteristics of his weapon that made it a firearm under the act?
● 5861d is silent concerning the mens rea required for a violation
○ Just says that it’s unlawful for a person to receive or
possess a firearm that isn't registered to them
● But silence on this point alone doesn’t mean that Congress
intended to get rid of mens rea requirement
■ As noted in Morisette, the “purpose and obvious effect of doing away with
the requirement of a guilty intent is to ease the prosecution’s path to
conviction”
● But reluctant to apply that here since it would mean easing the
path to convicting people whose conduct ‘would not even alert
them to the probability of strict regulation in the form of a statute
such as 5861(d)’
■ Said that the potentially harsh penalty is incompatible with the theory of
the public welfare offense
● And that without a clear statement from Congress that mens rea is
not required, we should not apply the public welfare offense
rationale to interpret any statute defining a felony offense as

18
 19

dispensing with mens rea

■ Reversed and remanded
■ Class notes:
● Different than public welfare offense bc said that owning a gun is
as common as owning a car, and may not fully understand fully
how it works and may not have fired it
○ Would be criminalizing innocent conduct
○ Not the same as someone who puts food or
pharmaceuticals on their shelves to be distributed to
society at large, not guaranteeing their safety
○ In this case, just an individual
○ If he misuses his gun, will be liable for that, but not typical
public welfare offense
● If we criminalize having a gun, half of america will be trapped bc
50% of america owns a gun

➢ MPC doesn’t like strict liability but understands public welfare offense argument, like with
driving
○ They say you can have those things but they will be violations rather than
convictions and only civil penalties

Child pornography
a. United States v. X-Citement Video p312
i. Q: Should a conviction under this statute require proof that the D knew
that the person shown in the visual depiction was a minor, or only that he
knew that the thing he shipped or received was a visual depiction?
1. How far down the sentence does the word “knowingly” travel?
ii. Court held that the statute must be construed to require proof, not just
that the D had shipped or received something he knew to be a visual
depiction, but also that he knew that the depiction involved a minor
engaged in sexually explicit acts
1. So “rewrote” the statute, said to give it its most grammatically
correct reading would be ridiculous

Policy Debate Regarding Strict Liability Offenses

Justification: Support for strict liability is largely limited to its use in the enforcement of
public welfare offenses, and is premised on utilitarian grounds.
utilitarian arguments for strict liability:
1. The absence of mens rea requirement may have the desirable effect of keeping people
who doubt their capacity to act safely from participating in dangerous activities, such as
manufacturing pharmaceutical drugs or using dangerous instrumentalities
2. Those who do choose to engage in the risky activity will act with great caution in light of
the strict liability nature of the law
3. An inquiry into the actor’s mens rea “would exhaust courts, which have to deal with
thousands of ‘minor’ infractions every day”

State v. Benniefield
● D convicted of possessing drugs within 300 feet of a school
● Court held that prosecution must prove the D knew he was in possession of the drugs,
but that the D could be convicted of the more serious school-zone offense w/o any proof

19
 20

that he knew or should have known he was near a school

○ Prevailing approach
○ Supreme court gave it qualified endorsement in Elonis
■ Court: “when interpreting federal criminal statutes that are silent on the
required mental state, we read into the statute only the mens rea which is
necessary to separate wrongful conduct from otherwise innocent conduct
○ But MPC rejects approach
○ US v. Cordoba-Hincapie: D imported heroin but claimed she thought it was
cocaine (heroin had a greater punishment)
■ Court held that denying a defense for a mistake about the seriousness of
the offense committed violates the requirement that punishment be
calibrated to the degree of culpability

MPC Strict Liability

MPC does not recognize strict liability offenses except for violations. Violations are offenses that
cannot result in imprisonment or probation, but may result in fines.

Mistakes of Fact
Once D produces some evidence he was mistaken, the P must prove (beyond a reasonable
doubt) that the D was not mistaken, or that the D’s mistake did not negate the mens rea.
Common Law Rules
Specific-Intent Offenses
● A defendant is not guilty of a specific-intent crime if her mistake of fact negates the
specific-intent element of the offense.
● Even an unreasonable mistake of fact—a mistake that a reasonable person would not
make— may exculpate the actor, assuming the mistake negates the mens rea
required for the offense.

General Intent Offenses

● Ordinary Rule
○ A defendant is not guilty of a general-intent offense if her mistake of fact was
reasonable. An unreasonable mistake of fact does not exculpate for general
intent offenses.
● Exception: “Moral Wrong” Doctrine
○ Although the principle stated above is the general rule, on rare occasion a court
will convict a defendant of an offense, although her mistake of fact was
reasonable, if her conduct violates the “moral wrong” doctrine.
○ This doctrine provides that there should be no exculpation for a mistake where, if
the facts had been as the actor believed them to be, her conduct would be
immoral, albeit legal.
○ By knowingly committing a morally wrong act, an actor assumes the risk that the
facts are not as she believed them to be, i.e., that her actions are not just morally
wrong, but also legally wrong.
● Alternative Exception: “Legal Wrong” Doctrine

20
 21

○ Occasionally, a court will convict a defendant of an offense, although her mistake

of fact was reasonable, if her conduct violates the “legal wrong” doctrine.
○ This rule substitutes the word “illegal” for “immoral” in the description of the
moral-wrong doctrine, but is otherwise applied in the same manner.
○ Thus, a person is guilty of criminal offense X, despite a reasonable mistake of
fact, if she would be guilty of a different, albeit lesser, crime Y, if the factual
situation were as she supposed.

Strict-Liability Offenses
● A mistake of fact, whether reasonable or unreasonable, is never a defense to a
strict-liability offense.
● This rule is logical: a strict-liability offense is one that requires no proof of mens rea.
Therefore, there is no mens rea to negate. A defendant’s mistake of fact is legally
irrelevant.
MPC on Mistake of Fact
● General rule
○ Usually, a mistake of fact is a defense to a crime if the mistake negates a mental
state element required in the definition of the offense
○ The MPC dispenses with the common law distinction between “general intent”
and “specific intent” offenses: the mistake-of-fact rule applies to all offenses in
the same manner
● Exception:
○ MOF defense is inapplicable if the D would be guilty of a lesser offense if the
facts had been as she believed them to be
○ But under those circumstances, (unlike the common law), the D will be punished
at the level of the lesser, rather than the greater, offense
MPC: subjective culpability, would agree with mistake of fact defense
- Almost never asks if mistake of fact is reasonable, except when defined in terms of
negligence
- Lesser wrong approach
- If you have the culpability for a lesser wrong, MPC would keep punishment to
that level
- You get the punishment grade for the crime you believed you were committing

With specific-intent crimes, common law jurists developed the rule that a mistake of fact is
exculpatory if it negates the particular element of mens rea—the specific intent—of the offense.

With general-intent offenses, the jurists sought to determine if the actor’s mistake negated his
moral culpability for the crime.

The elemental approach should be followed with all non-strict-liability crimes today

Mistake of Fact Hypotheticals

● Umbrella hypo
○ Whoever takes the property of another with the intent of permanently depriving

21
 22

the other of their property is guilty of theft

○ As D exits the restaurant, he takes what he believes is his umbrella from the
umbrella stand near the door. As it turns out, it actually belongs to another
customer. Is D guilty of theft?
■ No
● Brandon Lee hypo
○ Unless justified, whoever intentionally kills another is guily of murder
○ D, an actor on the set of a TV show, picks up a gun he finds on set. Thinks it is a
prop loaded with blanks. Points it at a fellow actor and pulls trigger. Gun actually
had live ammo in it and the shot hit and killed another actor. Is D guilty of
murder?
■ No
Mens rea specified on the face of the statute:
- Mistake of fact is a defense if it negates the specified mens rea
Mens rea unspecified:
- Is D’s mistake of fact reasonable? If so, D has a viable defense
- → assuming D’s mistake of fact is reasonable, was D nevertheless committing a moral
wrong? If so, no defense
- → assuming D’s mistake of fact is reasonable, was D nevertheless committing a lesser
legal wrong? If so, no defense
Holloway v. United States (1999)

○ Facts: D, on foot, walks up to V, who is stopped at a red light, points an unloaded gun at
V and says “get out of the car or I’m gonna blow your head off.” V complies, D drives off
with V’s car but is stopped and arrested shortly after. D is charged with carjacking

○ Carjacking statute:
■ Whoever
■ With the intent to cause death or serious bodily harm
■ Takes a motor vehicle from the person or presence of another by force or
intimidation
■ The vehicle having been transported, shipped, or received in interstate or foreign
commerce
● Element of defense P has to prove but not modifiable by mens rea, just
jurisdictional
● Mens rea does not apply
○ Specific intent or general intent defense?
○ Specific intent
■ bc there is a mens rea on top of another mens rea
● Additional mental state on top of another mental state that speaks to,
modifies, or clarifies actus reus
● Took vehicle WITH INTENT to cause death or serious bodily harm
● Crime of violence AND property crime
■ Actus reus: taking the motor vehicle by force that belonged to someone else
■ Mens rea: intent to cause death or serious bodily harm
○ Attendant circumstances: the vehicle having been transported, shipped, or received in

22
 23

interstate or foreign commerce

Same fact pattern but just “points a gun,” presumably loaded
- Is there intent to cause death or serious bodily harm?
- Conditional intent (only intended to cause death or harm if V didn’t comply)
- Is the person who has conditional intent the same as the person with intent?
- Is the blameworthiness different?
- Scalia will say it’s not ambiguous, read what the statute says exactly
United States v. Jewell
- Appellant drove car with 110 pounds of marijuana in secret compartment, said he didn’t
know it was there
- But he knew of the compartment and there was circumstantial evidence that he had
knowledge of facts indicating that it contained marijuana
- Deliberately avoided positive knowledge of the presence of it
- Defense: if no positive knowledge, can’t be convicted
- Jury convicted after being instructed that P could establish knowledge beyond a
reasonable doubt by proving that only reason for his ignorance was solely and entirely a
result of his having made a conscious effort to disregard the nature of that which was in
the vehicle, with a conscious purpose to avoid learning the truth (aka thereby avoid
criminal liability)
- Why does the appellate court affirm the conviction?
- Appellant’s interpretation of “knowledge” is inconsistent with the purpose of drug
control act to deal more effectively with the drug abuse problem in the US
- If positive knowledge was a requirement, it would make deliberate
ignorance a defense and many people would use it as a defense
- and it can be hard to prove that someone had positive knowledge
- “It is worth emphasizing that the required state of mind differs from positive
knowledge only so far as necessary to encompass a calculated effort to avoid the
sanctions while violating its substance…
- “To act knowingly, therefore, is not necessarily to act only with positive
knowledge, but also to act with an awareness of the high probability of the
existence of the fact in question
- When such awareness is present, “positive” knowledge is not required
- Model penal code section 2.02(7):
- “When knowledge of the existence of a particular fact is an element of an
offense, such knowledge is established if a person is aware of a high
probability of its existence, unless he believes that it does not exist”

Regina v. Prince: If the act itself is wrong, a mistake of fact cannot be excusable. No longer held
as precedent after B (A Minor) v. Director of Public Prosecution. We learn our duties by living in
a community—a defense of mistake rests ultimately on the D’s being able to say that he has
observed the community ethic

● Conviction upheld on appeal

● Judge said it wasn’t part of the statute whether D believed the girl was underage or not
so it didn’t matter that he thought she was 18
○ The act is wrong in itself
■ And if anyone does this wrong act, they do it at the risk of the person
being younger than 16
● MPC approach: generally, aggravating circumstances should trigger more severe
penalties only when the D was subjectively aware of a risk that the circumstance existed
● If no culpability level is explicitly stated in the definition of the offense, purpose,

23
 24

knowledge, or recklessness is required by Section 2.02(3) as to each material element

● Solution embraced in section 2.04(2):
○ deny the defense in certain circumstances, but to limit the classification of the
offense and the available disposition of the defendant to those that would have
been available upon conviction of the lesser offense
○ The effective measure of the D’s liability should be his culpability, not the actual
consequences of his conduct

Criticisms of Moral Wrong Doctrine: it permits conviction of a person who did not know, and
had no reason to know, that his conduct would violate the law. Immorality and illegality are not
identical concepts. A person should only be punished for conduct that the legislature has
prohibited. The doctrine is premised on the assumption that the D intentionally committed an
immoral act

Legal-Wrong Doctrine
If a person’s conduct causes the social harm prohibited by More Serious Offense X, he is guilty
of that offense even if, based on his reasonable understanding of the attendant circumstances,
he would be guilty of Less Serious Crime Y if the situation were as he supposed.

Criticisms: It authorizes punishment based on the harm that an actor has caused while
ignoring the fact that the actor’s mens rea was at the level of a lesser crime.

Garnett v. State: boy with low IQ got a 13-year-old pregnant. Statutory rape laws are often
justified on the “lesser legal wrong”’ theory. By this reasoning, the D acting without mens rea
nonetheless deserves punishment for having committed a lesser crime, fornication, or for having
violated moral teaching that prohibit sex outside of marriage.

People v. Olsen:

- There can be no mistake of age defense when the act committed involved a victim of
“tender years”. Policy Rationale: there’s a strong public policy to protect children of
“tender years”.
- Garcia and Olsen still convicted
- Even though the court believed his version of the facts, the elements of the crime
were still satisfied
- How did they arrive at strict liability?
- A mistake of fact relating only to the gravity of the offense will not shield
the offender from the full consequences of the legal wrong they actually
committed
- Lesser legal wrong doctrine?

- in People v. Hernandez, 20 years before, court overruled established precedent and held
that accused’s good faith reasonable belief that victim was 18 years or older was a
defense against statutory rape charge
- But court of appeal declined to apply Hernandez in another case, People v. Lopez
- Court refused to recognize rx mistake of age defense to a charge of offering or
furnishing marijuana to a minor
- “A mistake of fact relating only to the gravity of an offense will not shield a
deliberate offender from the full consequences of the wrong actually

24
 25

committed”
- Legislature determined that people who commit sexual offenses on children
under 14 should be punished more severely than those who commit such
offenses on children under 18
- Intended to protect children under the age of 14
- Questions on Olsen
- CA: criminality of sexual behavior turns on 3 factors:
- Age of victim
- Whether force was used
- Whether sexual conduct included intercourse
- Under California penal code, forcible non consensual sexual conduct is always
criminal, regardless of age
- Trial judge acquitted Olsen of all charges involving the alleged use of force
- Judge found beyond reasonable doubt only the facts necessary to convict
for consensual misconduct under S288(a)

B (a minor) v. Director of Public Prosecutions p298

- B, 15y/o boy repeatedly asked a 13y/o girl to perform oral sex
- Girl refused and B charged with inciting a child under the age of 14 to commit an act of
gross indecency, contrary to S1(1) of the Indecency with Children Act 1960
- B said he believed girl was over 14
- But trial justice ruled that was not a defense
- B changed plea from not guilty to guilty and appealed
- On appeal, Q: did holding of Regina v. Prince govern in this case? If so, should English
courts continue to adhere to it?
- Court: honest belief approach is preferred
- When that occurs, the D’s fault lies exclusively in falling short of an objective
standard. His crime lies in his negligence

MISTAKE OF LAW
● In general, knowledge of the law is not an element of an offense
● A mistake of law (even a reasonable one) does not ordinarily relieve an actor of liability
for the commission of a criminal offense
● The law treats mistakes of law more strictly than mistakes of fact.
● The common law mistake-of-law rule is straightforward:
○ ignorance of the law is not an excusing defense.
● Usually no mens rea element in an offense capable of being negated by an actor’s
ignorance or mistake of law
● Once determined that a D is asserting MOL, rather than MOF, the default legal position
is simple: the D’s mistake will not exculpate, subject to a few narrow exceptions

Justifications for the rule

● Certainty of the law

○ The law is definite, so any mistake of law is inherently unreasonable
● Concern about fraud

25
 26

○ Is a MOL defense was recognized, it would invite fraud

○ Every D would assert ignorance or mistake, and it would be nearly impossible to
disprove the claim
○ A pragmatic justification for the no-excuse rule is that recognition of a mistake of
law defense would provide “opportunities for wrong-minded individuals to contrive
[claims of mistake] solely to get an exculpatory notion before the jury.
● Promoting knowledge of the law
○ To promote education and deter ignorance, the law must apply strict liability
principles

Exceptions to the general rule

● Mistakes that negate the mens rea

○ D is not guilty of an offense if his MOL, whether reasonable or unreasonable,
negates an element of the crime charged
● Authorized reliance doctrine
○ D is not guilty of offense if, at the time of the offense, he reasonably relied on an
official statement of the law, later determined to be erroneous, obtained from a
person or public body with responsibility for the interpretation, administration, or
enforcement of the law defining the offense
■ On whom or what body is reliance reasonable?
● Although the common law is less clear than the Model Penal Code
in this regard, apparently a defendant may reasonably rely on an
official statement of the law found in a statute, judicial opinion,
administrative ruling, or an official interpretation of the law given
by one who is responsible for the law’s enforcement or
interpretation, such as the United States or State Attorney
General.
● Due process clause
○ In rare circumstances, it offends due process to punish a person for a crime of
which she was unaware at the time of conduct. The Due Process Clause is
violated if 3 factors exist:
■ 1. The “unknown” offense criminalizes an omission
■ 2. The duty to act is based on a status condition rather than conduct
■ And 3. The offense is malum prohibitum in nature

People v Marrero:
● (corrections officer carrying a gun in public)
● Claimed mistake of law, had a mistaken belief of a statute and reasonably believed he
qualified for the statutory exemption
● P said cannot claim protection of MOL just by misconstruing the meaning of a statute but
must instead establish that the statute relied on actually permitted the conduct in
question and was only later found to be erroneous (MPC 2.04: “Afterward determined to
be invalid or erroneous”)
● In this case, the statute never authorized D’s conduct; he just thought it did
● MOL viable exception in other cases, when someone relies on validity of a law and later

26
 27

it is determined that there was a mistake in the law itself

○ Designed to protect people from being punished for misleading information
● If Marrero has to know he is not otherwise authorized to carry a gun, he doesn’t know
that, and it would be a failure of proof defense
● Bc he believes he is authorized, so lacks the mens rea

● This case falls within Gardner rationale bc the weapons possession statute violated by
the D imposes liability independent of one’s intent to violate the law
● More desirable bc “to admit the excuse at all [of MOF] would be to encourage ignorance
where the lawmaker has determined to make men know and obey, and justice to the
individual is rightly outweighed by the larger interests on the other side of the scales”
(Holmes)
● Contrast: People v. Weiss
○ Kidnapping case; trial court precluded testimony that the Ds acted with the
honest belief that seizing and confining the victim was done with authority of law
○ Held that it was an error to exclude that testimony since a good faith belief in the
legality of conduct would negate an express and necessary element of the crime
of kidnapping, i.e. intent, without authority of law, to confine or imprison another
○ Why does the court find this case inconsistent with marrero?
■ What was it about the case that made ignorance of the law excusable?
○ FOP defense
○ P not able to prove they had the “intent, without authority of law, to confine”
● MPC says it’s not an offense when acts in reasonable reliance upon a statement of law
ONLY IF “afterward determined to be invalid or erroneous”

Fair Notice and Lambert Principle

● Lambert v California: court held that, under limited circumstances, a person who is
unaware of a duly enacted and published criminal statute may successfully assert a
constitutional defense in a prosecution of that offense
○ (D failed to register as a felon in CA but didn’t know of the requirement and
wasn’t given a chance to do it when she was informed of it)
○ “actual knowledge of the duty to register or proof of the probability of such
knowledge” was a constitutional prerequisite to conviction for violation of the
registration statute. The court’s most significant observation was that D’s
situation was atypical because “we deal here with conduct that is wholly
passive—mere failure to register.”
○ Three aspects of the ordinance may have concerned the justices:
■ (1) it punished an omission (failure to register);
■ (2) the duty to act was imposed on the basis of a status (presence in LA),
rather than on the basis of an activity; and
■ (3) the offense was malum prohibitum.
○ When these factors are present, there may be nothing to alert a law-abiding
person to the need to inquire into the law. Statutes such as these are susceptible
to arbitrary enforcement.
○ *has to be wholly passive to get benefit of the doubt* (ex. Failing to register rather
than actively committing some crime)
Ignorance of Mistake that Negates Mens Rea
General approach:

27
 28

- Mistake of law, whether reasonable or unreasonable, will not usually negate any mens
rea element found in the definition of a crime
- Different-law mistake: mistake relating to law other than the one charged with
- Negates mens rea if it can be determined whether offense charged is specific
intent, general intent, or strict liability
- General intent offenses
- Different law mistake is not a defense, whether reasonable or not
- Specific intent offenses
- Different law mistake (whether reasonable or not) is a defense if the mistake
negated the specific intent in the prosecutorial offense
- Cheek v. US:
- tax law case where person willfully didn’t pay taxes
- His defense: he had received info from a group opposing taxation, so he
seriously believed that he owed no taxes and that if he did, those laws were
unconstitutional
- Jury said they were divided on issue of whether D honestly and reasonably
believed that he was not required to pay income taxes
- Trial judge instructed jury that “an honest but unreasonable belief is not a
defense and does not negate willfulness” and that persistent refusal to
acknowledge the law does not constitute a good faith misunderstanding of
the law
- Reasonableness relevant if jury can hold that they believe the reasonableness
- trial judge instructed the jury that only an objectively reasonable
misunderstanding of the law negates the statutory willfulness requirement
- Wilfully in a statute: suggests you need to know a law
- In this case, tax laws are so complicated that it would be unreasonable to expect
the average person to read and understand them without mistake
- Standard for willfulness requirement is the “voluntary, intentional violation
of a known legal duty… the D must be aware of some legal conclusions,
but not others”
- Claims that some provisions of the tax code are unconstitutional “reveal full
knowledge of the provisions at issue and a studied conclusion, however wrong,
that those provisions are invalid and unenforceable”
- SC: it was not error in this case for the district judge to instruct the jury not to
consider Cheek’s claims that the tax laws were unconstitutional
- But it was error for the court to instruct the jury that the petitioner’s asserted
beliefs that wages are not income and that he was not a taxpayer within the
meaning of the Internal Revenue Code should not be considered by the jury in
determining whether Cheek had acted willfully
- On retrial: D was convicted on an instruction allowing the jury to consider whether
the D’s stated belief about the tax statute was reasonable as a factor in deciding
whether he held that belief in good faith

- Strict-liability offenses
- Different law mistake is not a defense; if liability is strict, no mens rea to negate

28
 29

HOMICIDE
Common law:
● Murder 1: Malice aforethought
○ Malice: generally meant intent/knowing. Expanded to felony murder and
depraved heart killings.
○ Forethought: premeditation (time to deliberate)
● How else can you rule intent to kill:
○ deadly weapon rule
■ permissible inference (jury doesn’t have to find intent but can)
■ If you find that a D used a deadly weapon on a vital part of victim’s body,
can infer that D had intent to kill
○ Attendant circumstances
■ If enough evidence that, if put together, point toward intent to kill
○ Natural and probable consequences rule
■ Permissible inference (can’t require jury to conclude intent to kill, but they
can)
■ Arguing D did x, intended to do x, and the natural and probable
consequence of doing x is that the victim will die

● Murder (see if statute specifies first v. second degree) UNLESS adequate provocation:
○ Traditional adequate provocation (Girouard): provocation which would cause a
reasonable man to be in a heightened state of passion and lose his self-control.
Only a few circumstances can serve as legally adequate provocation:
■ Common-law categories:
● Sexual infidelity (today only if discovered in the act of intercourse
(Simonovich)]),
● Mutual combat,
● Assault and battery,
● Injury to one of defendant’s relatives,
● Resistance to an illegal arrest
■ Majority view: Words can constitute adequate provocation only if they are
accompanied by conduct indicating a present intention/ability to cause
defendant bodily harm (Girouard).
○ Expanded adequate provocation (Maher)
■ Minority view: Reasonable provocation is anything the natural tendency of
which would be to produce such a state of mind in ordinary men, and
which the jury are satisfied did produce it in the case before them.
● Courts that take this approach may still rule some things out, and
words still may not be enough
○ If adequate provocation, manslaughter.
*provocation has to affect the reasonable person of average sensibilities,
not based on the frailties of a particular defendant
● If statute has a distinction between first and second degree:
○ Premeditation

29
 30

○ Carroll (premeditation must be something other than intentionality. “No time is too
short for a wicked man to frame in his mind the scheme of murder”)
○ Guthrie (there must be some evidence that defendant considered and
weighed his decision to kill in order for State to establish premeditation under
first-degree murder statute).
■ Key facts to consider: planning activity, motive, preconceived design
(Anderson)
■ For both tests, ask whether defendant was in a state of passion or
whether reasonable person should have cooled off.
○ For unpremeditated, courts look for explosive situations
■ Rash, impulsive, heat of the moment, not cold or calculated

MPC:
• Murder (210.2(a)) if purposely or knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life (recklessness presumed under FM
equivalent 210.2(b)) UNLESS extreme mental or emotional disturbance
• (210.3(1)(b)): mitigated to manslaughter if under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse.
Reasonableness determined from viewpoint of person in actor’s situation (have to
evaluate which characteristics constitute “situation”) under the circumstances as he
believes them to be (both a subjective and an objective rule) (Cassassa).
• Doesn’t have to be a single provocative event; MPC says
second-degree murder can be reduced to manslaughter for people who had
significant mental trauma over a period of time (White, Elliot)

Maher v. People p464

● Prisoner charged with assault with intent to kill and murder
● Facts: D entered saloon, was agitated, approached Hunt, said something unintelligible to
him, shot him, inflicting a non-fatal wound in and through the left ear
● D offered evidence to show an affair between his wife and Hunt < hour before the
assault, had followed them
● Trial court ruled this evidence was inadmissible and jury convicted P with intent to
murder
● Q: Was the evidence properly rejected?
○ Depends on whether the proposed evidence would have tended to reduce the
killing - had death ensued - from murder to manslaughter
■ If would have been manslaughter, then couldn’t be intent to murder here
but simple assault and battery
○ Q therefore involves same principles as where evidence is offered for a similar
purpose in a prosecution for murder
● For malice aforethought, the homicide must have been committed with some degree of
coolness and deliberation, or at least under circumstances in which ordinary men would
not be liable to have their reason clouded or obscured by passion, and the act must be
prompted by, or the circumstances indicate that it sprung from, a wicked, depraved, or
malignant mind
● But if heat of passion or blood, manslaughter
● What should be considered in law a reasonable or adequate provocation for such a state

30
 31

of mind, so as to give to a homicide, committed under its influence, the character of

manslaughter?
○ Ordinary human nature should be taken as standard
● This would have been sufficient evidence to show provocation, which would have
reduced the charge to manslaughter
● Reversed for new trial
● Manning: dissent
○ Evidence properly excluded
○ The provocation itself must be given in the presence of the person committing the
homicide
Rationale of the provocation defense:
● 2 most common are grounded in the notion of either partial justification or partial excuse
○ Class example of justification:
■ Self defense when an actor kills as a necessary measure to protect
himself from an unlawful and imminent threat of great bodily harm
○ Classic example of excuse:
■ Insanity
● Justifications focus on the wrongfulness of the act
○ Justified: even in part, treat actor as a fully responsible agent and acknowledge
that what he did was right or at least not entirely wrong
● Excuses focus on the culpability of the actor
○ Excused: condemn the act and forgive him merely bc of his reduced volitional or
cognitive capacity
Model penal code: a rx person does not kill even when provoked
Model criminal jury instructions for 9th circuit: more appropriate standard
- “Provocation, in order to be adequate, must be such as might naturally cause a
reasonable person in the passion of the moment to lose self-control and act on impulse
and without reflection”
- Doesn’t imply that rx people kill, but focuses on the degree of passion sufficient to
reduce the actor’s ability to control his actions

People v. Beltran p469

California SC:
- Proper focus is on state of mind, not on particular act
- To be adequate, provocation must be one that would cause an emotion so intense that
an ordinary person would simply react, without reflection

Provocation defense
- Elements:
1. Murder
2. Passion (subjective)
a. D has to be enraged or in state of emotional turmoil (rage, fear, ...)
3. Reasonable provocation or reasonable explanation or excuse (objective)
4. Reasonable person would not have cooled (objective)
5. D had not cooled (subjective) / killing = result of passion (causation)
- Looking for an external trigger
- Looking for somebody who acts quickly (as opposed to brooding)
- Brooders don’t get this defense in common law jx (but do in MPC jurisdiction)
- Girouard is same as Maher except for 3

31
 32

- In a maher jurisdiction, jury gets to decide more cases

- Don’t want to have legal categories bc 5 legal categories can’t possibly capture
what goes on with people and leads them to be emotionally enraged/in turmoil &
other circumstances where it might be appropriate for mitigation
- Want the jury to have their human interpretation
- As jury if it would be reasonable for them to be emotionally wrought
- They live in this world, they should make these decisions
- Provocation Defense
- Rationale
- 1. Excuse D
- 2. Justification
- We think they’re less morally blameworthy, and that their thinking/reason is
compromised in the situation
People v. Casassa p479
● D was dating victim for a few months, then she told him she wasn’t falling in love with
him and he was devastated, he stalked her and went to her house a few times
● On night of the killing, he offered her wine and she rejected it, and he brought out a knife
he had with him and stabbed her in the throat
● Intent to kill?
○ Conditional intent - with the knife, might not have used it if she accepted the gift
● Charged with 2nd degree murder
○ In NY, 2nd degree is CA’s 1st degree
○ (1st degree in NY is killing a police officer)
● Issue: whether D acted under influence of EED
● EED defense
○ Elements:
■ 1. Murder
■ 2. Extreme mental or emotional disturbance (EED) (subjective)
■ 3. Reasonable explanation or excuse for EED (objective)
○ MPC:
■ Don’t need an external trigger
■ Words alone can suffice
● Different than provocation where ordinarily ordinary words don’t
suffice (but maybe threatening words)
■ Why do we have this defense?
● More fair, for jury to show whatever empathy they can
■ Once established #2 - extreme emotional disturbance (subjective) - , then
it goes to the jury to decide if there is a reasonable explanation

Homicidal Risk
Commonwealth v. Welansky p490
● Nightclub that burned down
● D charged with involuntary manslaughter
○ Mens rea: wanton and reckless conduct
■ Duty of care for the safety of business visitors
● When it comes to homicidal risk, look at why you do what you do and what was the point
of the thing in the first place
○ In this case, money was the motivation
■ Cramming more people in than were allowed
■ And blocking exit doors so that no one could dine and dash
People v. Hall p496

32
 33

● Good example of an exam answer

● Skiing collision
● Charged with felony reckless manslaughter
● This case is the *MPC approach to manslaughter*
● In common law tradition, murder 1, 2, voluntary and involuntary manslaughter
● In MPC, no degrees of murder, just murder, and then reckless and negligent
manslaughter/homicide
● Reckless manslaughter requires conscious disregard of substantial risk here
● Court said that Hall disregarded substantial and unjustifiable risk
○ Due to his knowledge and training
● 4 elements being analyzed
○ 1. Was there a substantial risk?
■ Baseline, and what did D do to make it a higher risk?
○ 2. Was it justifiable?
■ For fun, entertainment, etc
○ 3. Was there a gross deviation from the standard of care of a law-abiding
person?
■ Would a law-abiding person act this way?
○ 4. Was there a conscious disregard for the risk?

State v Williams p499

● proximate cause
● Facts: Ds, husband and wife, charged with manslaughter for negligently failing to supply
17-month old child with necessary medical attention, leading to his death
● Ds said they did not realize how sick the child was and that they were afraid to take him
to a doctor because they were afraid the Welfare Department would take him away from
them
● Appellate court held that both Ds were under a legal duty to obtain medical assistance
for the child
○ For involuntary manslaughter, the breach had to be more than ordinary
negligence, had to be gross negligence
○ But under washington statutes, the crime is deemed committed even though the
death of the victim is the proximate result of only simple or ordinary negligence
○ Simple/ordinary negligence: failure to exercise the “ordinary caution” necessary
to make out the defense of excusable homicide`
■ But if that negligence proximately causes the death of the victim, guilty of
statutory manslaughter
● Court: Ds were sufficiently put on notice concerning the baby’s symptoms to have
required them to have obtained medical care
○ Their failure to obtain medical care is ordinary negligence, and that negligence
was sufficient to support a conviction of statutory manslaughter

33
 34

MPC on individualization:
● MPC definition of negligence rejects a fully individualized standard
○ But takes into account some degree of individualization - “the care that would be
exercised by a reasonable person in the actor’s situation”
● Leaves to the courts the problem of determining the appropriate degree of
individualization
● (MPC took a similar approach in its test for provocation, where the objectivity of the
standard is qualified by the sentence)

MPC Unintended Killing

MPC: unintended killing is murder when committed recklessly and under circumstances
manifesting extreme indifference to the value of human life
- The first judgement must be made in terms of whether the actor’s conscious disregard of
the risk, given the circumstances of the case, so far departs from acceptable behavior
that is constitutes a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation
- Ordinary recklessness, in this sense, is made sufficient for a conviction of
manslaughter
- But for murder, MPC calls for further judgement whether actor’s conscious
disregard of the risk, under the circumstances, manifests extreme indifference to
the value of human life
- Purposeful or knowing homicide demonstrates precisely such indifference
to the value of human life
- Recklessness:
- If it can be assimilated to purpose or knowledge, → murder
- Less extreme → manslaughter
MPC and inadvertent murder:
● Murder requires proof that D acted “recklessly under circumstances manifesting extreme
indifference to the value of human life”
○ Emphatic opposition to punishing inadvertent risk creation as murder
MPC and intoxication
● Says that recklessness need not be shown if D was unaware of the risk because of
voluntary intoxication
○ Can contradict the previous statute bc it makes negligence (in drinking before
driving) a sufficient mens rea for murder

If killing is unintentional:
Common law:
● Depraved heart: Generally where someone engages in a truly pointless activity which
poses a great risk to human life, and defendant is aware of the risk to human life but
disregards the risk. (Malone [Russian Roulette case])
● Manslaughter
○ Involuntary manslaughter: Grave danger to others must have been apparent and
defendant must have chosen to run the risk rather than alter his conduct so as to
avoid the act or omission which caused the harm. Depends on if ordinary man
under the same circumstances would have realized the gravity of the danger
(Welansky)

34
 35

■ If negligence is sufficient, must be more than mere ordinary or simple

negligence
MPC:
● Depraved heart 210.2(b): Unintended killing is murder when it is committed recklessly
and under circumstances manifesting an extreme indifference to the value of
human life (Malone, Fleming -- drunk driving case)
● Manslaughter/Negligent homicide
○ Manslaughter (requires recklessness) 210.3(1)(a): Criminal homicide constitutes
manslaughter when it is committed recklessly.
○ Negligent homicide (negligence is okay) 210.4(1): Depends on whether
defendant was aware of the unwarranted risk he was creating. Manslaughter if
actor was “reckless.” (Hall: consciously disregarded substantial and unjustifiable
risk) Negligent homicide if actor should have been aware of such a risk, but was
not (Hall; Williams -- omission amounted to gross negligence).

35
 36

Walker v Superior Court p508

● religious mother wanted to treat sick daughter with prayer, daughter died
● Q: guilty of involuntary manslaughter?
○ Yes
Malone
● Russian roulette, shot friend
● Convicted of 2nd degree murder
● Culpability in these scenarios: depraved heart murder
● He said it was not intentional
○ Evidence: bullet in first chamber, friends with the guy
○ No apparent motive
● He wanted involuntary manslaughter
● Court said didn’t matter that he didn’t intend it
○ Equated hurling your car into a group of people into pulling the trigger on a gun
○ Gross recklessness for which he must reasonably anticipate that a death could
result
○ Malice
■ Murder 1: express malice
■ Murder 2: implied malice
● Gross recklessness
● In carrol jx, simple intent to kill is murder 1
● In guthrie, simple intent to kill is murder 2
● MPC doesn’t have an equivalent for intent to cause serious bodily harm

United States v Fleming p513

● Drunk driver drove into oncoming traffic, speeding, killed woman
● Convicted of 2nd degree murder
● D argued that it should have been manslaughter at most
● To support conviction for murder, “the gov’t need only have proved that D intended to
operate his car in a manner in which he did with a heart that was without regard for the
life and safety of others”
● D drove in a manner that could be taken to indicate depraved disregard for human life
and deviated from established standards of regard for life and safety of others that is
markedly different in degree from that found in most vehicular homicides
● Affirmed
● Class notes:
○ Cannot argue that you were not aware bc you were voluntarily intoxicated
■ Fact finder gets to assume you had the awareness of a sober person
○ Ultimately called it depraved heart murder

Theories of Punishment
● Principles of Utilitarianism
○ Augmenting happiness
■ Utilitarianism holds that the general object of all laws is to augment the
total happiness of the community by excluding, as much as possible,
everything that subtracts from that happiness, i.e., everything that causes
“mischief” (pain)
○ Role of punishment

36
 37

■ Both crime and punishment are evils because they both result in pain to
individuals and to society as a whole. Therefore, the pain of punishment is
undesirable unless its infliction is likely to prevent a greater amount of
pain in the form of future crime.
○ Forms of utilitarianism
■ General deterrence
● A person is punished in order to send a message to others (the
general society or, at least, persons who might be contemplating
criminal conduct) that crime does not pay
■ Specific deterrence
● D is punished in order to deter D from future criminal activity. This
is done in either of two ways: by incapacitation (incarceration of D
prevents her from committing additional crimes in the general
community for the duration of her sentence); and/or by intimidation
(D’s punishment serves as a painful reminder, so that upon
release D will be deterred from future criminal conduct).
■ Rehabilitation
● Advocates of this form of utilitarianism believe that the criminal law
can prevent future crime by reforming an individual, by providing
her with employment skills, psychological aid, etc., so that she will
not want or need to commit offenses in the future.
● Principles of retribution
○ Just deserts
■ Punishment of a wrongdoer is justified as a deserved response to
wrongdoing. Retributivists punish because of the wrongdoing—the
criminal gets his just deserts—regardless of whether such punishment will
deter future crime
○ Rationale
■ Wrongdoing creates a moral disequilibrium in society. The wrongdoer
obtains the benefits of the law (namely, that other people have respected
his rights), but he does not accept the law’s burdens (respecting others’
rights). Proportional punishment of the wrongdoer— “paying his
debt”—brings him back into moral equilibrium. Another justification is that
both crime and punishment are forms of communication: one who
commits a crime sends an implicit message to the victim that the
wrongdoer’s rights are more important than others’ rights; punishment is a
symbolic way of showing the criminal—and reaffirming for victims—that
this message was wrong. Punishment proportional to the offense defeats
the offender: it brings him down to his proper place in relation to others.
Proportionality of Punishment
1. General principle
a. A general principle of criminal law is that punishment should be proportional to
the offense committed.
2. Utilitarian meaning

37
 38

a. Punishment is proportional if it involves the infliction of no more pain than

necessary to fulfill the law’s deterrent goal of reducing a greater amount of crime.
3. Retributive meaning
a. Punishment should be proportional to the harm caused on the present occasion,
taking into consideration the actor’s degree of culpability for causing the harm
4. Constitutional law
a. The Eighth Amendment Cruel and Unusual Punishment Clause prohibits grossly
disproportionate punishment
i. Death penalty cases
1. The Supreme Court has held that death is grossly disproportional
punishment for the crime of rape, because the latter offense does
not involve the taking of human life.
ii. Imprisonment cases
1. According to the Supreme Court’s most recent pronouncement,
there is only a very “narrow proportionality principle” outside the
context of the death penalty. The legislature (not the judiciary) has
primary authority in setting punishments. No non-capital
incarcerative punishment will be declared unconstitutional unless
there are objective grounds—not simply a judge’s own subjective
views of the propriety of the punishment—for determining that the
punishment is grossly disproportionate to the crime.

38