CRIMINAL LAW OUTLINE

Professor Harcourt – Spring 2021

I. Elements of Criminal Law

A. Actus Reus
B. Mens Rea

II. The Law of Homicide

A. General Overview
B. Intended Killings
a. Premeditation
b. Heat of Passion
C. Felony Murder
D. Unintended Killings
a. Extreme Recklessness [Murder]
b. Reckless [Manslaughter] and Negligent Homicide
E. Issues of Causation

III. Why Do We Punish? Theories, Institutions, Practices

IV. Capital Punishment

A. Death Penalty Jurisprudence
B. Race and the Death Penalty

V. Justifications and Excuses

A. Self-defense
B. Battered Women Syndrome
C. Duty to Retreat
D. Law Enforcement Use of Lethal Force
E. Necessity
F. Duress
G. Insanity

VI. Expanding Liability

A. Attempt
B. Complicity
C. Conspiracy

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I. Elements of Criminal Law

A. Actus Reus

Actus Reus, or guilty act, is a fundamental principle that criminal liability always requires the
commission or omission of some voluntary act that is prohibited by law.

MPC §2.01(1): “A person is not guilty of an offense unless his liability is based on conduct that
includes a voluntary act or the omission to perform an act of which he is physically capable.”
o §1.13(2): “‘Act’ or ‘action’ means a bodily movement whether voluntary or involuntary;”
o §1.13(5): “‘Conduct’ means an action or omission and its accompanying state of mind…”
o §2.01(2): “The following are not voluntary acts [:]
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of
. the actor, either conscious or habitual. [habitual action is voluntary under MPC]
o §2.02(3): An omission requires either (a) express statutory provision or (b) a legal duty.
o Steven, History of the Criminal Law of England (1883): “A criminal walking to execution is
under compulsion…but his motions are just as much voluntary as if he [were] going to…
regain his liberty. He walks to his death because he prefers it to being carried.”
o MPC comment to §2.01: fundamental that a civilized society does not punish for thoughts
alone; law cannot hope to deter involuntary movement or to stimulate action that cannot be
performed.

Definition:
- The act requirement, or actus reus, stands for the proposition that just punishment
necessitates that punishment be for past, voluntary, wrongful, or potentially harmful
conduct that is specified in advanced by statute.
o For criminal liability to attach, there must be a commission or omission.
 And criminal conduct must be voluntary (often called the “volition
requirement”)
 What is not voluntary behavior? Reflexes, convulsion, bodily
movements during unconsciousness or sleep. (MPC § 2.01)

MPC §1.13
- In this Code, unless a different meaning plainly is required:
o (2) “act” or “action” means a bodily movement whether voluntary or involuntary;
o (9) “element of an offense” means
 (i) such conduct or
 (ii) such attendant circumstances or
 (iii) such a result of conduct as
 (a) is included in the description of the forbidden conduct in the
definition of the offense; or
 (b) establishes the required kind of culpability; or
 (c) negatives an excuse or justification for such conduct; or

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  (d) negatives a defense under the statute of limitations; or
 (e) establishes jurisdiction or venue;

MPC § 2.01
- (1) A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is physically
capable.
- (2) The following are not voluntary acts within the meaning of this Section:
o (a) a reflex or convulsion;
o (b) a bodily movement during unconsciousness or sleep;
o (c) conduct during hypnosis or resulting from hypnotic suggestion;
o (d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
- Arguments on MPC §2.01
o Prosecution
 Reflex or convulsions can be overcome w/ effective time framing analysis
 driving car w/ knowledge of condition is voluntary (Decina)
 Failing to act can give rise to liability in 4 major categories (Jones)
o Defense
 Liability only if conduct involves a voluntary act
 Liability can only be imposed under MPC if:
 the omission is specifically a material element of the statute; or
 duty to perform is imposed by law

Voluntary Acts
- Voluntary act = movement of body willed or directed by the actor.
o A voluntary act can be result of habit or inadvertence as long as the individual
could have behaved differently.
- Involuntary act = individual had no conscious control
o Unconsciousness, sleepwalking/somnambulism, epilepsy, bodily movements
caused by being struck by another person, hypnosis.
- Rationale of not punishing involuntary behavior:
o Utilitarian: should not be criminalized because cannot be deterred
o Retributivist: did not decide to do a wrongful act – does not deserve punishment.
- Key: Interpreting MPC §2.01(2) and arguing that the act is not voluntary and therefore
o D cannot be guilty -> Voluntariness goes to time-framing (Kellman):
 Are we going to consider a broad or narrow history of this person?
 To what extent do we connect broader history to the crime?
 Broad vs. narrow views of intent
 intending to pull trigger or intending to kill?
 Reasonable person analysis – Looking at D in that moment vs across time
 Narrow: Would a reasonable person in that moment act like this?
 Broad: Would a reasonable person who had these experiences act
like this?

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Kellman, Interpretive Construction in the Substantive Criminal Law
- Look to Kellman to frame your arguments for the prosecution or defense.
o What’s the time frame?
 Broad (usually exculpating defendant) vs. narrow (usually easier to pin
culpability)
 What did the defendant intend?
 Broad (pull the trigger) vs. narrow (kill)
 How much of the defendant’s history do you consider? Account of the
action:
 Disjointed (usually prosecution) vs. unified (usually defendant’s
argument)
 Looking at the defendant broadly forces the court to make societal
judgments
 Would a reasonable person act like the defendant? Would a
reasonable person who has lived through the defendant’s past /
experiences act like this?

Cases
- Martin v. State (Ala. Ct. App. 1994) [Missing the voluntary act]
o Facts
 Police officers had arrested him at his house and brought him onto the
highway, where he used loud and profane language. Defendant was
convicted of being drunk on a public highway and appealed.
o Statute
 “Any person who, while intoxicated or drunk, appears in any public place
where one or more persons are present, . . . and manifests a drunken
condition by boisterous or indecent conduct, or loud and profane
discourse, shall, on conviction, be fined.”
o Holding
 Conviction under the statute overturned.
o Reasoning
 One cannot be accused of public drunkenness if he was involuntarily
brought to a public place by an arresting officer.
o Theory: think of Kellman, time framing. Defendant was drunk before taken
involuntarily into public.

- People v. Low – Martin Applied. NOTE pp. 206 (Cal. 2010)

o Facts: Low (Δ) was arrested and a search at jail found drugs on his person. He
was convicted of knowingly bringing a controlled substance into jail.
o Holding: Conviction upheld and Martin distinguished since Δ had the chance to
voluntarily relinquish the drugs before being searched.

- People v. Eaton – [Martin Applied Better. NOTE. pp. 206 (Wash. 2010)]

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 o Facts: Eaton (Δ) was charged with bringing drugs into jail discovered after he was
brought there.
o Holding: Failing to read a voluntariness requirement into the statute would be
absurd since Δ surrendering the drugs would convict him of a new crime.

- Jones v. Los Angeles – [Status of Homelessness. NOTE pp. 207 (9th Cir. 2006)]
o Rule: “The state may not criminalize ‘being’; that is, the state may not punish a
person for who he is, independent of anything he has done.”
o Facts: Skid Row residents (Δ) sued to enjoin infra ordinance as criminalizing the
“universal and unavoidable consequences of being human,” since LA had
insufficient beds to accommodate.
o Charge: It is an offense to “sit, lie, or sleep upon any street, sidewalk, or other
public way.”
o Dissent: The law punished not being but conduct, that is sitting, lying, or sleeping
in a place.

- People v. Newton (Cal. Ct. App. 1970) [Unconsciousness is involuntary]

o Facts
 Huey Newton (Black Panthers co-founder) was pulled over by Officer
Frey. In the ensuing struggle over a gun (unclear if it was Newton’s or
Frey’s), Frey was fatally shot, and Newton was shot in the abdomen and
ended up in the hospital. Newton testified that he had carried no gun and
that he had been blacked out (unconscious/semiconscious – that is, not
conscious of his actions) between getting shot and ending up in the
hospital. Originally convicted of voluntary manslaughter (we’ll get into
homicide charges later.)
o Holding
 Conviction overturned. The trial court committed reversible error when it
failed to instruct the jury as to defendant's involuntary, unconscious state
due to a profound reflex shock reaction.
o Rule
 “Where not self-induced, as by voluntary intoxication or by the equivalent
(of which there is no evidence here), unconsciousness is a complete
defense to a charge of criminal homicide.”

- People v. Decina (N.Y. 1956) [Time framing + Interaction between Actus Reus & Mens
Rea]
o Facts
 Defendant was indicted for driving despite knowing that he was prone to
epileptic attacks that caused him to lose consciousness. He lost
consciousness while driving and killed four people.
o Statute
 “A person who operates or drives any vehicle of any kind in a reckless or
culpably negligent manner, whereby a human being is killed is guilty of
criminal negligence in the operation of a vehicle resulting in death.”
o Holding

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  This was culpable negligence within the meaning of the statute.

o Reasoning
 The earlier voluntary act of getting into the car and driving it satisfies the
voluntary act element of the crime. One may be criminally culpable for
involuntary acts caused by a condition if the individual knows of the
condition and disregards the possible consequences.
o Rule
 As long as there is one voluntary act in the defendant’s course of conduct,
he may be criminally responsible.
o Distinguishing with Martin
 Proximate cause argument against time-framing: The earlier voluntary acts
by Martin (wider time framing) were not actually the proximate cause of
his being drunk in public, it was the actions of the officers.
 In Decina, the epileptic man chose to drive and that was a proximate cause
for killing those 4 people.
o Takeaway
 Earlier voluntary act of getting into car and driving it satisfies the
voluntary act element of the crime. One may be criminally culpable for
involuntary acts caused by a condition if individual knows of condition
and disregards possible consequences.
 Time framing: Actus Reus + Mens Rea must coincide. As if, at some
relevant time, D with requisite mens rea, acted in a way that ultimately
caused the harm?

- Jones v. U.S. (D.C. Cir. 1962) [Act of Omission - Failure to act can satisfy the actus reus
requirement]
o Facts
 Defendant was convicted of involuntary manslaughter because of failure
to provide for a friend’s infant child. Unclear whether D agreed to take
care of the baby or was compensated. D nonetheless had the financial
means to provide food and medical care.
o Holding
 Lower court’s failure to instruct the jury on neglect of legal duty as a
critical element of the crime is plain error. Reversed and remanded.
o Rule:
 “The duty neglected must be a legal duty, and not a mere moral obligation.
It must be a duty imposed by law or by contract, and the omission to
perform the duty must be the immediate and direct cause of death.”
(Beardsley)
 Four Situations that Can Result in Criminal Breach of Duty
 Where a statute imposes a duty
 One stands in a certain status relationship to another
 Where one has assumed a contractual duty to care for another

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  Where one has voluntarily assumed care of another and so
secluded the helpless person as to prevent others from rendering
aid

B, Mens Rea
Material Elements, §1.13(10): conduct, attendant circumstances, and result

Minimum Requirements for Culpability, §2.02(1): A MPC mental state is required for culpability.

The MPC’s Four Mental States, §2.02(2) (explicit majority, strong influence in others)
State Conduct Attendant Circ. Result
If the elements involve
If the elements involve a If the elements involve
attendant circumstances,
conduct, Δ’s conscious a result, Δ’s conscious
(a) Purposely Δ is aware of their
object is to engage in object is to cause such
existence or believes or
such conduct a result
hopes they exist
If the elements involve
If the element involves If the element involves
a result, Δ is aware that
the nature of Δ’s conduct, attendant circumstances,
(b) Knowingly it is practically certain
Δ is aware that their Δ is aware that such
that their conduct will
conduct is of that nature circumstances exist
cause such a result.
Δ consciously disregards
a substantial and
unjustifiable risk that they
are engaging in this
Δ consciously
proscribed conduct; Δ consciously
† this disregard involves a disregards a substantial
(c) Recklessly disregards a substantial
and unjustifiable risk
gross deviation from the and unjustifiable risk
that the proscribed
standard of conduct that a that the result will
circumstances exist.
law-abiding person would occur.
observe considering Δ’s
purpose and
circumstances as they are
known to them.
Δ fails to recognize a
substantial and
unjustifiable risk they are
engaging in this conduct;
the failure to recognize Δ fails to recognize an D fails to recognize a
(d) Negligently the risk, given Δ’s unjustifiable risk that the substantial and
purpose and the proscribed unjustifiable risk that
circumstances, as known circumstances exist. the result will occur.
to them, involves a gross
deviation from the
standard of care a
reasonable person would
observe.
§2.05 Strict liability is reserved for violations (civil infractions)
† §2.02(3) provides that recklessly is the default mens rea
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MPC Analysis involves two steps:
- What are the material elements of the offense? (MPC §1.13(9))
o Nature of the forbidden conduct
o Attendant circumstances
o Result of the conduct
- Which Mens Rea is required with respect to each material element? (§2.02)
o Purpose
o Knowledge
o Recklessness
o Negligence

MPC § 2.02
- Material elements—MPC 1.13(9):
o Conduct
o Attendant circumstance
o Result
- Four Mental States
o Purposely
o Knowingly
o Recklessly
o Negligently
- MPC § 2.02(3) – default mens rea is recklessness
o Appears to require awareness for all factors:
 that there is a risk,
 the risk is substantial,
 and the risk is unjustifiable
o This is because (1) a prosecutor wouldn’t go for the higher mens rea and make it
unnecessarily harder for her case; and (2) a jury wouldn’t need a higher mens rea
to convict.
o Essentially forbids formal strict negligence
- MPC § 2.02(4)
o Unless there is a clearly contrary purpose, the mens rea that attaches to the
actus reus attaches to the other elements of the crime.
- MPC § 2.02(5)
o Proving one mens rea also proves every mens rea “below” the proven level of
culpability.

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 - Balkin, The Crystalline Structure of Legal Thought
o Rule choices – dyadic (2 options)
o Individualism vs. Communalism
 De-emphasize or minimize responsibilities and duties of individuals to
each other, vs.
 Emphasize and extend responsibilities that individuals owe each other
o Legal thought / argumentation boils down to essentially this dichotomy

Cases
- Regina v. Cunningham [Meaning of “malice”]
o Facts
 Defendant tore gas meter from wall to get $$ and in so doing caused a gas
leak leading to the partial asphyxiation of his future mother-in-law. He
was convicted of maliciously administering a noxious thing after the trial
judge instructed the jury that malicious meant wicked.
o Statute
 "Whosoever shall unlawfully and maliciously administer to or cause to be
administered to or taken by any other person any poison or other
destructive or noxious thing, so as thereby to endanger the life of such
person, or so as thereby to inflict upon such person any grievous bodily
harm, shall be guilty of felony...”
o Issue
 Whether the trial judge erred in instructing jury that malice meant
wickedness.

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 o Holding
 Yes, the trial judge erred. Malice requires not merely wickedness; it
requires that D foresaw and recklessly disregarded the harm caused by his
actions. (I.e. malicious = reckless.)
o Rule
 Mere negligence not enough to satisfy the mens rea of malice.
Prevailing approach in Criminal Law.

- Regina v. Faulkner [Malice Requirement]

o Facts
 Defendant was trying to steal rum from ship, lit a match and accidentally
set ship on fire, destroying it. He was charged with violating the Malicious
Damage Act by “maliciously” setting fire to the ship. Trial judge
instructed jury that if they found him guilty of theft and believed fire took
place during theft, he should be liable for the fire.
o Statute
 “feloniously, unlawfully, and maliciously” set fire to the ship.
o Issue
 If, while a person is engaging in a felony, they accidentally do some
collateral act, that if done intentionally would be unlawful, should they be
found guilty.
o Holding
 No, can’t be convicted for an act that is the unintended and
unforeseeable consequence of a lesser offense. In order to have
maliciously set fire to the ship, D must have acted intentionally and
willfully. Trial judge gave erroneous jury instructions by not requiring
malice.
o Takeaway
 Maliciousness must be intentional and willful

- State v. Hazelwood (Alaska 1997) [Negligence = Ordinary/Civil Negligence]

o Facts
 Defendant, captain of the oil tanker Exxon Valdez, ran his ship aground on
a reef, with the result that 11 million gallons of oil spilled.
o Statute
 It is illegal to “discharge, cause to be discharged, or permit the discharge
of petroleum . . . upon the waters or land of the state” when done so
“negligently”
o Issue
 Whether ordinary civil negligence can be applied in a criminal case.
o Holding
 Yes. The ordinary negligence standard can be applied to the criminal
statute, even though criminal negligence would have posed a higher
burden for prosecution (criminal negligence requires a more culpable

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 mental state than ordinary negligence because it involves a gross deviation
from the standard of care).
o Dissent:
 Notions of fundamental fairness…require a showing of something more
than ‘failure to act reasonably’ before a Δ may be subjected to
imprisonment.” If mere negligence is not enough for punitive damages in
tort, how can it result in imprisonment in criminal law?

- Santillanes v. New Mexico (N.M. 1993) [Negligence = Criminal]

o Facts
 Defendant cut his seven-year-old nephew’s neck with a knife during an
altercation and was convicted of child abuse under a statute defining the
offense as “negligently causing a child to be placed in a situation that may
endanger the child’s life or health.” Trial judge gave the jury a standard
civil definition of negligence: A negligent act is “one which a reasonably
prudent person would foresee as involving an unreasonable risk of injury
to himself or to another and which such a person, in the exercise of
ordinary care, would not do.”
o Issue
 Whether the court can apply civil negligence in a criminal case.
o Holding
 No, the requisite culpability for a criminal act is higher than that of a civil
tort.
o Reasoning
 ” When moral condemnation and social opprobrium attach to a conviction
of a crime, the crime should reflect a mental state warranting such
contempt.”
o Policy: The culpability should reflect the seriousness of the crime; negligence is
criminal negligence.

- Elonis v. United States (2015) [Interpreting Statute without specified mens rea]
o Facts
 Defendant was convicted of communicating online threats to ex-wife &
Kindergarten class through Facebook posts, which contained violent rap
lyrics.
o Statute
 18 U.S.C. § 875(c) makes it a crime to transmit in interstate commerce
“any communication containing any threat to . . . injure the person of
another.”
o Issue
 Whether defendant needed to be aware of the threatening nature of the
communication.
o Holding
 Yes. A mens rea is required; in this case, a finding of at least negligence, if
not recklessness, was required to convict.
o Reasoning

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 There is no mens rea requirement in the statute. But the Court generally
reads into criminal statutes a mens rea requirement, even if a statute does
not contain one. Criminality requires a minimum of negligence. A
guilty mind is a necessary element in the indictment and proof of every
crime.
o Takeaway
 When there is no clear mens rea, use the statutory text to interpret one into
the statute. If one cannot be read into the statute, apply the default rules of
the jurisdiction.

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II. THE LAW OF HOMICIDE

General Overview

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 Common Law Category Intended Killings Non-Intended Killings
First Degree Murder Premeditation, deliberation, Statutory Predicates of
and willfulness Felony Murder

Second Degree Murder
Manslaughter (voluntary)
Manslaughter (involuntary)
Purposely or Knowingly
Intentional
Purposely or Knowingly
Heat of Passion
Extreme Emotional or Mental
Disturbance (EED)
Depraved Heart and Felony
Murder
Recklessly under
circumstances manifesting
extreme indifference to the
value of human life (assumed
when one commits a felony)
Heat of Passion; reckless
culpable negligence
EED or Reckless
Culpable negligence

Criminal Negligence

Homicide under the Common Law and Model Penal Code

Definitions
- Homicide: Unjustified and unexcused killing of a human being.
- Categories of crime
o Criminality: What distinguishes criminal from non-criminal behavior?
o Grading: What factors warrant greater or lesser punishment when behavior
qualifies as a crime?
- Legislative grading
o Divide homicidal conduct into crimes of different names
 Manslaughter: homicide without malice
 1st degree: voluntary
o Heat of passion
 2nd degree: involuntary
o Reckless
o Without due caution
 Murder: homicide with malice
 Premediated
 Intent to cause death

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  Intent to cause serious bodily harm
 Extreme recklessness and indifference to life
 Felony-murder

- Dividing the same crime into different degrees

o First degree
o Second degree
- MPC does not divide murder into degrees

MPC §210
- § 210.1. Criminal Homicide.
o Purposely, knowingly, recklessly, or negligently causing the death of another
human being – either murder, manslaughter, or negligent homicide
o human being: born and alive
 The MPC distinguishes between homicide and feticide.
- § 210.2. Murder.
o Homicide committed purposely or knowingly (analog to intent)
o Homicide committed recklessly under the circumstances manifesting extreme
indifference to the value of human life (analog to depraved heart)
 Presumed if engaged in or an accomplice to a violent felony (robbery,
forcible sex, arson, burglary, kidnapping, or escape) but rebuttable (analog
to felony-murder rule)
- § 210.3. Manslaughter.
o Homicide committed recklessly (but see above)
o Homicide which would otherwise be murder, but which is committed under
extreme mental or emotional disturbance for which there is a reasonable
explanation or excuse
 Reasonableness determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believes them to be
- § 210.4. Negligent Homicide.
o Homicide committed negligently

Report of the Royal Commission on Capital Punishment – pp. 420

- “The traditional…description of murder [is] ‘unlawful killing with ‘malice
aforethought;’’ while manslaughter is defined as ‘unlawful killing without ‘malice
aforethought.’”
o Malice Aforethought
 Neither word is used in the traditional sense, now a “highly technical term
of art”
 “Malice Aforethought” is simply a comprehensive name for a number of
different mental attitudes which make a homicide heinous enough to be
murder
o Murder is…
 Intended killing with no or minor provocation

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  An unintended killing by an act intended to kill another
 A killing accompanied by a general intent to kill but no specific intent
 Killing from an intent to cause grievous bodily harm
 Killing by an intentional act but only reckless indifference to possible
death

Foucault
- The norms of our culture are represented in criminal law
o What constitutes provocation?
 The answers to this question reflect culture that is characterized by
patriarchy and monogamy.
 These norms shape and influence us.

Napoleonic Penal Code of 1810

- Influential on the subsequent development of criminal codes
- Value judgments
o Among the “worst” types of homicide is patricide
o Why is that? What does this say about society? What assumptions are baked in
here?

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A. Intended Killings

First and Second-Degree Murder - Premeditation

Common Law Murder: The killing of a human being by another human being with malice
aforethought. Blackstone. Has no gradation.

Malice Aforethought: Aforethought is superfluous, and intent is satisfied by an

(1) Intent to cause death
(2) Intent to inflict serious bodily harm (common law but not MPC)
(3) Extreme recklessness and indifference, “depraved heart”
(4) Felony-murder

Statutory Murder: Often statutes modify common law murder, typically (a) requiring the killing be
willful, deliberate, and premeditated and (b) gradating into first- and second-degree
(1) Willful: a specific intent to kill
(2) Deliberate: a ‘cool’ mind free from excitement or passion
(3) Premeditated: open to debate; see infra

Premeditation: Typically required for first-degree murder; circuit split on requirements:

(1) Carroll-style any prior intent, no matter how short, is premeditation
a. Pro: Premeditated just stresses the willful intent; impulsive killers are also bad
b. Con: Erases the intended distinction between first- and second-degree murder
c. depravity; perhaps we want to punish those who do not take time to reflect?
(2) Guthrie Style: Premeditation must include some time to contemplate the decision to
kill.

Cases
- Commonwealth v. Carroll (Pennsylvania 1963) [Premediation = intent to kill -> first
degree]
o Facts
 Defendant shot his wife in the back of the head while they were lying in
bed after an argument & disposed of body. She allegedly hurt their
children, but it was seemingly due to a mental disorder. The gun had been
placed in the bedroom for the wife’s safety.
o Procedural History
 Carroll pleaded guilty to an indictment charging him with the murder of
his wife. He was found guilty of first-degree murder (“willful, deliberate,
and premeditated”) and sentenced to life imprisonment.
o Issue

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 
(1) Does the evidence sustain a conviction higher than second-degree
murder?
 (2) Should the evidence of defendant’s good character and evidence that
the homicide was not premeditated or intentional require the court to fix
the degree of guilt no higher than second-degree murder?
o Holding
 This was clearly willful, deliberate, and premeditated murder. Judgment
and sentence for first-degree murder affirmed
o Takeaway
 Answers the question “What is premeditated?”
 Premeditation can occur just in the moments before a killing.
 Length of time and a general lack of planning doesn’t preclude a finding
of premeditation

- State v. Guthrie (W.V. 1995) [Premediation ≠ intent to kill = 2nd degree]

o Facts
 D pulled a knife from his pocket and stabbed his coworker in the neck. D
and decedent were joking around during their work as dishwashers;
decedent snapped defendant with a dishtowel several times. After
decedent flipped D on the nose with the towel, D removed his gloves and
stabbed decedent. D had many mental disorders, including an obsession
with his nose. He also testified that he suffered a panic attack just before
the stabbing.
o Procedural History
 Defendant was found guilty of first-degree murder (“willful, deliberate,
and premeditated”) and sentenced to life imprisonment. Jury instructions
said premeditation means intent to kill & need exist “only for an instant.”
o Issue
 Whether jury instructions on the premeditation component of murder are
wrong and confusing because they suggest that the intention to kill does
not need to exist for any length of time before the killing.
o Holding
 The instructions are wrong. Premeditation must include some time to
contemplate the decision to kill.
 There must be some evidence that defendant considered and weighted his
decision to kill in order for state to establish premeditation and
deliberation under court’s first-degree murder statute -> any other killing,
by its spontaneous and non-reflective nature, is second-degree murder.
o Takeaway
 Shows a split in jurisdictions with Carroll. In jurisdictions where
premeditation must have actual reflection, think about what kind of
evidence supports this finding. Here, look at “planning” behavior, motive
(relationship?), manner of killing, etc.
 There must be evidence indicating that the defendant weighed and
considered his decision to kill.

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- People v. Anderson – Categories of Premeditation Evidence. NOTE pp. 435 (Cal. 1968)
o Holding: Evidence of premeditation falls into three categories
 (1) Facts regarding Δ’s behavior prior to the killing that might indicate a
design to kill
 (2) Facts about Δ’s prior relationship that might indicate a design or
motive to kill
 (3) Evidence that the manner of killing was so particular or exacting that a
preconceived intentional design must have been premeditated upon
- Typically, all three will be present or, at least, strong evidence of 1/2 or with 1/3.
o Reversed in People v. Solomon (2010) so that no specific combination is needed
and alternative evidence can be relied upon.

- State v. Forest – Sympathetic Premeditation. NOTE pp. 436 (NC 1987)

o Facts: Forest (Δ) took a pistol on a visit to his hospitalized, terminally ill father
and, sobbing with emotion, killed his father with a single shot to the head.
o Holding: First-degree murder conviction upheld.

19
Common Law Voluntary Manslaughter – Mitigation

Common Law Manslaughter: The killing of a human being by another human being without malice
aforethought. Blackstone. No intentionality requirement. Justifiable as partial excuse (lost capacity)
or justification (more ‘normal’ behavior).

Common Law Defense Elements

(1) The actor acted in the heat of passion;
(2) The passion must have resulted from adequate provocation;
(3) The actor must not have had a reasonable opportunity to “cool off;” and
(4) There must be a causal link between the provocation, passion, and homicide.

Adequate Provocation
 Majority Common Law approach is something more than words that would incite a
reasonable person to act from passion rather than from reason is needed. Girouard.
o Minority of these allow words disclosing what if seen would be provocation.
o Rejected in MPC
o Traditional fixed categories: (a) aggravated assault; (b) mutual combat; (c) a serious
crime against a relative; (d) illegal arrest; or (e) spousal adultery.
 Minority approach is more flexible and leaves it to the jury to decide. Maher.

The Reasonable Person

 Traditional: an objective “reasonable man” that “does not…focus on the peculiar frailties of
mind of the [defendant].” Girouard.
 Often: an objective “average man” standard. Maher.
 Sometimes: an objective-subjective standard

Cooling Time
 Common Law: a significant lapse of time between provocation and the act moots. Bordeaux.
 Minority: Juries can determine if enough time elapsed. Berry.
 Rekindling: Rejected by many courts, allows events to rekindle earlier provocation.

Heat of Passion/Provocation Defenses

- General:
o Murder might be mitigated to voluntary manslaughter where there was a:
 (1) Provocation
 battery, mutual combat, aggravated assault, adultery, illegal arrest
 (2) That caused D to act in the heat of passion.
o Subjective vs. objective standards
 Which facts are we going to allow to be considered? (Kellman, time
framing)
- Arguments:
o Defense: Would prefer MPC (Casassa) or open jury question (Maher)

20
 o Prosecution: Would prefer the Girouard approach: “reasonable man”
 Casassa indicates how MPC can still be good for the prosecution when
D’s actions are beyond understanding.
- Murder + Provocation = voluntary manslaughter
o Three views on what is adequate provocation:
 Girouard represents the common law approach
 Maher represents a minority view that some jurisdictions follow
 Casassa represents the MPC approach—some states have adopted fully,
others have made revisions
- Heat of Passion
o Murder may be mitigated to “voluntary manslaughter” where there was a
 (1) “provocation” that
 (2) caused defendant to act in the “heat of passion.”
- Cases
o Girouard v. State (Maryland 1991) [Majority common law approach –
prosecution friendly]
 Facts
 Girouard and wife got into argument. Wife told Girouard she
wanted a divorce and she had filed charges against him for abuse.
She asked, “What are you going to do?” and Girouard took out a
knife he had hidden behind pillow and stabbed her 19 times.
 Holding
 Here there was not adequate provocation to reduce murder to
manslaughter because “words alone are not adequate provocation”
and Girouard could not have reasonably feared bodily harm.
 Rule
 Words are regarded as sufficient provocation if they are both:
o Calculated to inflame the passion of a reasonable man and
tend to cause him to act for the moment from passion rather
than reason
o And accompanied by conduct indicating a present intention
and ability to cause the defendant bodily harm.
 Takeaway: WORDS ALONE ARE NOT ADEQUATE PROVOCATION
 Court sticks to the traditional circumstances of sufficient
provocation
o Battery, mutual combat, aggravated assault
o Adultery
o Illegal arrest

o Maher v. People (Michigan 1862) [Minority view but several jurisdictions still
follow it (D friendly)]
 Facts
 Maher suspected his wife was having an affair w/ Hunt, saw them
disappear into the woods together. When they reappeared, Maher

21
 followed Hunt to a saloon and shot Hunt (but non-fatal wound).
Maher was charged w/ assault w/ intent to commit murder.
 Holding
 Evidence of provocation should have been admitted here because it
would have been “competent of a jury to find that the action was
committed in consequence of the passion excited by the
provocation.”
 Takeaway
 Softens the “words alone are not enough” rule and holds that
provocation is a jury question. (But recall this is minority view.)

o People v. Casassa (N.Y. Ct. App. 1980) [MPC Approach]

 Facts
 Casassa’s girlfriend broke up with him and he stalked her. He
brought her gifts and when she rejected them, he stabbed her
several times in the throat.
 Statute
 NYPL based on MPC provides it is an affirmative defense to the
crime of second-degree murder where D acted under extreme
emotional distress for which there was a reasonable explanation or
excuse. Because this is affirmative defense in statute, burden of
proof is on D.

 Holding
 Excuse of extreme emotional distress was not reasonable here.
 Reasoning
 First question is subjective: Was this particular defendant in some
emotional distress?
o Answer is yes.
 Second question is objective/subjective: Was the fact that he was
in extreme emotional distress reasonably justifiable by looking at
the situation from the defendant’s viewpoint?
o Answer is no. This wasn’t reasonable.
 MPC Test (210.3)
 Defense of Extreme Emotional Disturbance has two principal
components
o (1) D must have acted under the influence of EED
(Subjective)
o (2) For which there is a reasonable explanation or excuse
for such EED (Objective)
 Determination of the reasonableness of the
explanation or excuse shall be made from the
viewpoint of a person in the actor’s situation under
the circumstances as he believes them to be
(Subjective)
 Helps D because you talk about what he thought
22
Felony Murder

Common Law Felony Murder: The intent to commit a felony is viewed to satisfy the “wicked” intent
requirement of common law murder, essentially making any death in the course of perpetrating
another felony a strict liability offense (that is, no mens rea needed)
o An Actus Reus is still need. See King v. Commonwealth.
(1) But-for the felony, the death would not have happened; AND
(2) The result must have been the natural and probable consequence of Δ’s action.
o Originally, when there were only a few felonies all punishable by death the felony murder
rule was seldom impactful and filled in the gap for attempted felonies resulting in death.
o Exists today in some form in nearly every American Jurisdiction and creates a dramatic
increase in the applicable punishment.
o Abandoned in England (1957) and never existed in France or Germany.

Partially-Rejected by the MPC § 201.2.

No standalone felony murder provision. However, there is a presumption of recklessness (a
conscious appreciation and disregard as to risk of death) when a homicide occurs during certain
felonies.

Killings Not “In Furtherance” of the Felony

o After the Felony: If there are still necessary actions to complete the felony (say, finishing an
escape) then the rule still applies. See Gillis.
o Unrelated to the Felony: If A and B enter a building to commit arson and A decides to rob V
and kills V in the process. A is guilty of ‘classic’ felony murder. B is guilty of felony murder via
conspiracy if the killing advanced the original felony of arson. See Cabaltero.
o By those Resisting the Felony:
o Agency (majority): Liability only when the killing is by the felon or a conspirator.
Justified by the lack of deterrence value in punishing for other’s acts; moreover,
there no party really has the culpable mens rea. See Canola.
o Proximate Cause (minority): Any death proximately resulting from the commission
of the felony. Some states limit this to enumerated felonies. See Almeida.
 Most often applied in states that follow the “enumerated felonies that are
inherently dangerous to life” approach to felony murder.

23
Under Canola, NY, and NJ is guilty if:

Target of Felony Innocent Bystander Codefendant Victim

Victim Victim
Defendant Kills Canola: Yes Canola: Yes Canola: Yes
NJ: No
NY: no
Codefendant Kills NJ: Yes NJ: Yes NJ: No
NY: Yes NY: Yes NY: No
Police Kills Agency: no Agency: No Agency: no
Proximate: it Proximate: Depends Proximate: depends
depends NJ: Yes NJ: No
NJ: Yes NY: No NY: No
NY: No
Innocent Bystander NJ: Yes NJ: Yes NJ: No
Kills NY: No NY: No NY: Yes

Cases
- Regina v. Serné – [Insurance Fraud Fire. Only Dangerous Felonies Should Count as
Transferable Intent for Murder. pp. 490 (Engl. 1887)]
o Facts
 Leon Serné and his family were in severe debt, living in house above a
store in London. Serné had taken out a life insurance policy on his son
Sjaak (an imbecile), and insured store inventory, furniture, and rent.
Within a month the store and house burned down and both his sons died.
At trial, prosecution introduced evidence that Serné and Goldfinch had
been seen together in the shop shortly before the fire started. It was alleged
they willfully set fire and were indicted for Sjaak’s murder.
o Holding
 Only an action taken with intent to commit a felony that is known to create
a danger to human life can constitute felony-murder.
o Takeaway
 Felony-murder is homicide caused by an action that is
 (1) dangerous in and of itself,
 (2) likely to result in the death of another, and
 (3) taken by a defendant with the intent to commit a felony.

- People v. Stamp (Cal. 1969) [Eggshell Victim. Felony Murder is NOT Limited to
Foreseeable Deaths But, Rather, is Strict Liability.]
o Facts

24
 
Defendant burglarized Honeyman’s store, robbed him at gunpoint. After,
Honeyman (60-year-old with history of heart disease) died of a heart
attack. Doctors testified that the fright from the robbery was too much of a
shock to Honeyman’s system.
o Holding
 First-degree murder conviction is upheld.
 Felony-murder doctrine not limited to foreseeable deaths; a felon is
instead held strictly liable for all killings committed by him / his
accomplices in the course of the felony.
 As long as the homicide is the direct causal result of the robbery the
felony-murder rule applies whether or not the death was a natural /
probable consequence of the robbery.
 The robber takes his victim as he finds him.

- State v. Canola (N.J. 1977)

o Facts
 Jewelry store owner resisted an attempted armed robbery by defendant
(Canola) and his accomplices. One accomplice and the store owner
exchanged gunfire, both died. Defendant and two accomplices indicted on
one count of robbery and two counts of murder (store owner and co-
felon). Defendant found guilty on both murder counts and sentenced to
two concurrent terms of life imprisonment.
o Issue
 Under NJ law, can a defendant be found guilty of felony-murder when
during his robbery of a store one of the robbery victims shoots one of the
defendant’s accomplices?
o Holding
 No, under NJ law, a defendant cannot be found guilty of the killing of an
accomplice by the armed robbery victim
 “It would be regressive to extend the felony murder rule to lethal
acts of third persons not in furtherance of the felonious scheme…
tort concepts of foreseeability and proximate cause have shallow
relevance to culpability for murder in the first degree.”
o Takeaway
 Felony-murder requires that the murder occur in furtherance of the felony

25
 Unintended Killings – Extreme Recklessness, Negligence

Common Law Unintentional Murder: Unintentional killings under common law could be murder
rather than manslaughter if done with “malice.” Blackstone, supra. Many American JXs have
introduced this into their penal code, allowing, e.g., heavy objects dropped onto a busy street, firing
into occupied buildings, and beating to, unintended, death to be murder.

MPC. §210.2.: All reckless criminal homicides are manslaughter under the MPC UNLESS “deliberately
performed by a person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.” Many states have adopted this form.
o Intentionally reflects the common law standard. MPC comment to §210.2.
o Reflects MPC murder’s “knowing” or “purposeful” culpability in not valuing human life. Id.
Common Law Elements*
(1) Intentional failure (actus reus);
(2) That causes;
(3) Death
(4) Of Another.
(5) Mens rea: wanton.
* Criminal Law does not recognize comparative/contributory negligence nor eggshell plaintiff (e.g., a single
punch in a fistfight that kills V does not make murder, but might be involuntary manslaughter

MPC Manslaughter vs. Negligent Homicide: the distinction between MPC §§210.3-4. is callous
disregard vs. should have been aware—that is awareness.
MPC § 210.3. Manslaughter is any reckless criminal homicide that doesn’t deliberately
endanger and consciously disregard the value of human life (which makes it murder).
MPC §210.4. Negligent homicide is any negligent criminal homicide.

Overview
- Accused does not intend to kill her victim, but malice is implied because the defendant’s
conduct demonstrates extreme recklessness or indifference to human life.
- Under the MPC, what is known as depraved heart murder at common law is collapsed
under what the MPC defines as “reckless murder,” which requires a mens rea of
recklessness.

Arguments
- Arguments
o Prosecution
 Higher charge if you can prove “extreme indifference” (Malone)
 Negligent homicide requires only ordinary negligence (Williams)
 There can be culpability for omission – look for duties (Welansky)

26
  Focus on the actor’s conduct + risk created by that conduct (Hall)
o Defense
 Recklessness rather than reckless murder reduces the sentence
 Gross deviation is for criminal negligence (common law)
 Pay close attention where it was an act or omission: if it’s an omission, is
there a duty? (Welansky)
 Focus on questions of the substantial/unjustifiable risk: Was the risk really
substantial? Why isn’t it justifiable? Could it be justifiable? (Hall)

Cases
- Commonwealth v. Malone (Penn. 1946) – extreme recklessness [Wanton Disregard for
Consequences Can Qualify for Malice and, Thus, Common Law Murder.]
o Facts
 A 17-year-old killed his 13-year-old friend while playing Russian
Roulette.
o Rule
 When an individual commits an act of gross recklessness for which he
must reasonably anticipate that death to another is likely to result, he
exhibits that “wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty” which
proves that malice was present.
o Issue
 Did defendant’s actions constitute malice?
o Holding
 Yes – second degree murder charge correct
 Malice here is evidenced by defendant’s “doing of an uncalled-for act in
callous disregard of its likely harmful effects on others.” (Statistical
consequences – 20% vs. 60%?)
 Lack of motive is not dispositive.
o Takeaway
 Example of “depraved heart” at common law
 This is later folded into recklessness

- Commonwealth v. Welansky (Mass. 1944) – recklessness [nightclub fire]

o Facts
 Defendant, owner of a night club in Boston, was charged with involuntary
manslaughter for the death of hundreds of patrons at his club as a result of
a fire. As owner of club, defendant had a legal duty to his invitees to use
reasonable care in keeping the premises safe for their use and preventing
(un)known dangers.
o Statute
 Involuntary manslaughter requires wanton or reckless conduct.
o Holding
 Proper conviction of involuntary manslaughter.
 (1) He was aware that venue was not in compliance w/ local safety
regulation; and
27
  (2) He knew that construction plans for new part of lounge
precluded the possibility of installing the doors necessary to
comply w/ safety regulations.

o Takeaway
 Wanton / reckless conduct = intentional conduct, by commission or
omission, that has a high likelihood of substantial harm
 Negligence is not enough
 Δ’s subjective understanding is unimportant, only the objective
recklessness.

o People v. Hall (Colo. 2000) – reckless [What is Recklessness and Substantial

Risk]
 Facts
 While skiing, defendant collided with victim who was on the slope
below. Victim died as a result. Defendant was charged with
reckless manslaughter.
 Statute
 Reckless manslaughter requires that a person “recklessly cause the
death of another person.”
 Conduct is reckless when the actor consciously disregards a
substantial and unjustifiable risk that death may result. MPC §
2.02.
 Issue
 What’s a substantial and justifiable risk?
 Holding
 A risk of death that has less than a 50% chance of occurring can
still be substantial.
 Here, it was a substantial risk given how reckless D was being.
 Takeaway
 Substantial risk is one that a reasonably prudent person would
identify

- State v. Williams (Wash. Ct. App. 1971) – negligence

o Facts
 Native American mother and stepfather of baby were convicted of
manslaughter for negligently failing to take their baby to a doctor when he
had an abscessed tooth that became infected and developed gangrene.
o Statute
 In Washington, involuntary manslaughter is committed if the death of the
victim is the proximate result of simple/ordinary/civil negligence.
o Holding
 The failure so to do in this case is ordinary or simple negligence, and such
negligence is sufficient to support a conviction of statutory manslaughter.
 Defendant was sufficiently put on notice concerning the symptoms of the
baby’s illness and lack of improvement in the baby’s apparent condition in
28
 the period from September 1 to September 5, 1968 to have required them
to have obtained medical care for the child.
 Here, it was a substantial risk given how reckless defendant was being.
o Takeaway
 Ordinary (civil) negligence resulting in death = involuntary manslaughter
 Statute later changed to require criminal negligence
 State v. Norman – Reversed Williams to Heighten Negligence.

- State v. Barnett –Criminal vs Civil Negligence. NOTE pp. 467 (Mass. 1944)
o Holding: Criminal Negligence must be “such a departure from what would be the
conduct of an ordinary reasonable prudent or careful man under the same
circumstances as to be incompatible with a proper regard for human life.”

Kant, Metaphysics of Morals

- Theory of punishment – retribution
o looks to defendant’s conduct; punishment is justified because defendant deserves
it, is blameworthy.
- Akin to “an eye for an eye”
- Crimes are wrongs because they violate categorical imperatives (penal law)
- Criticism of Utilitarianism
o Can’t treat people as goods
o Theoretically, an innocent man’s conviction might be “good” for overall
maximum utility

29
 Issues of Causation

Does not apply where the crime is defined w/o any result of Δ’s conduct (e.g., attempt)

Factual Cause: But-for causation. Acosta. Montoya. MPC §2.03.(1).

o There may be multiple concurrent but-for causes. Arzon.
Legal Cause: “Legal mumbo-jumbo” – Bernie Harcourt
o Common Law: Proximate causation. Acosta.
 Specific Cause: Δ must be able to foresee the “specific triggering cause.”
Warner-Lambert. Kibbe.
 When the harm is sufficiently unusual or unexpected, it seems fair to relieve the
defendant from liability. E.g., if in Kibbe a hunter’s shot killed V instead.
o MPC Version: Subsumed into culpability.
 Basically, part of the culpability level. If the harm diverges from what was
designed, contemplated, or risked the question is if the requisite mind-state
(reckless, knowing, et al.) still exists. §§2.03.(2)(b) and (3)(b)
 When no culpability requirement is specified a “probable consequence of the
actor’s conduct” standard is used. §2.03.(4).

Transferred Intent (universal rule)

o Common Law: “One cannot reasonably distinguish between A, who unlawfully [and
intentionally] kills B…and X, who unlawfully kills Y unlawfully intending to kill Z. Both A
and X harbor the same blameworthy mental state.” Scott (Cal. 1996) (Mosk)
o MPC. §2.03(2)(a): provides for transferred intent

30
Overview
- What’s the deal with causation?
o In order to be convicted, a defendant’s act or culpable omission must have caused
the result. Was there an intervening cause that renders the defendant not liable?
o The prosecutor must prove the causal link beyond a reasonable doubt
- MPC § 2.03 closely follows the common law approach to causation – causation is met
when results are expected by the “author” or doer.
- Where a particular result is a necessary element of the crime, the defendant’s act or
culpable omission must cause the result and the prosecution must prove that causal link
beyond a reasonable doubt.
o MPC §2.03(1)(a): Factual causation is an invariable prerequisite to liability.
o Burden on prosecution to prove causal link beyond a reasonable doubt

Causation Framework
- 1. Actual causation (But-for) (Factual)
o Harm would not have occurred in the absence of the defendant’s act
- 2. Proximate cause (Legal causation) (Acosta)
o Reasonably foreseeable or within scope of the risk created by conduct
o Not too remote
o Does not require that D subjectively knew the intervening cause could bring about
the harm.
- 3. Intervening cause:
o When the intended death occurs in an unintended way or the unintended death
occurs in an unlikely way, the law must distinguish variations that preclude
liability from variations that do not.

Transferred Intent
- Defendant shoots at Lucky, intending to kill him; bullet misses but strikes and kills
Unlucky. Guilty of murder?
o Yes, according to the doctrine of transferred intent: Defendant’s intent to kill
Lucky is “transferred” to his action that killed Unlucky.
- MPC 2.03(2)(a): MPC would likewise convict the defendant of murder in this scenario,
provides that where the crime requires that a defendant intentionally cause a particular
result (e.g., killing someone), that element of the crime is satisfied if the defendant
accidentally inflicts that injury on one person while intentionally trying to injure another.
- Transferring nonhomicidal intent is also valid

MPC § 2.03
- (1) Conduct is the cause of a result when:
o (a) it is an antecedent but for which the result in question would not have
occurred; and
o (b) the relationship between the conduct and result satisfies any additional causal
requirements imposed by the Code or by the law defining the offense.
- (2) When purposely or knowingly causing a particular result is an element of an offense,
the element is not established if the actual result is not within the purpose or the
contemplation of the actor unless:
31
 o (a) the actual result differs from that designed or contemplated, as the case may
be, only in the respect that a different person or different property is injured or
affected or that the injury or harm designed or contemplated would have been
more serious or more extensive than that caused; or (transferred intent)
o (b) the actual result involves the same kind of injury or harm as that designed or
contemplated and is not too remote or accidental in its occurrence to have a [just]
bearing on the actor's liability or on the gravity of his offense.
- (3) When recklessly or negligently causing a particular result is an element of an offense,
the element is not established if the actual result is not within the risk of which the actor
is aware or, in the case of negligence, of which he should be aware unless:
o (a) the actual result differs from the probable result only in the respect that a
different person or different property is injured or affected or that the probable
injury or harm would have been more serious or more extensive than that caused;
or
o (b) the actual result involves the same kind of injury or harm as the probable
result and is not too remote or accidental in its occurrence to have a [just] bearing
on the actor's liability or on the gravity of his offense.
- (4) When causing a particular result is a material element of an offense for which
absolute liability is imposed by law, the element is not established unless the actual result
is a probable consequence of the actor's conduct.

Cases
- People v. Acosta (Ca. 1991) [Foreseeability and coincidence – favorable to prosecution ]
o Facts
 2 police helicopters monitoring the high-speed pursuit of the defendant
collide, resulting in 3 deaths. Testimony that pilot of helicopter in which
all occupants died had not been following certain FAA regulations.
o Issue
 Can the defendant be found liable for the deaths?
o Holding
 Yes, the defendant is liable. D’s act was a proximate cause of the
helicopter crash b/c there was but for causation and the result was
foreseeable.
o Analysis
 Defendant is liable because the collision was “within the realm of
likelihood” to occur and he could have foreseen it. [In this case debatable]
 Reflects the idea that defendants who create peril to human life should not
be surprised if harm occurs as a result of what they did.
 Consequently, an actor will be held responsible even if another person,
including the victim, a would-be rescuer, or a police officer, actually
brings about the harm.
o Takeaway
 Proximate cause is met with but-for causation and foreseeability
 Foreseeability inquiry – was the result highly extraordinary? (But what
about FAA violations?)
 Acosta represents a low bar for foreseeability

32
- People v. Arzon (1978) [Fifth-Floor Fire. Concurrent Causation]
o Facts
 Defendant started a fire on the fifth floor of an abandoned building to keep
warm. Firefighters responded to fight the fire. Meanwhile, another fire
started independently by X on the second floor trapped the firefighters.
Overcome by smoke from the first and second fires, a firefighter sustained
injuries from which he died.
o Issue
 Has the defendant cause the death of the firefighter?
o Holding
 Yes
o Analysis
 In all likelihood, the firefighter would not have died had X not set the
second-story fire. The defendant’s fire, however, satisfied the “but-for”
requirement. Had the defendant not set the fifth-floor fire, the firefighter
would not have died.
o Takeaway
 Defendant’s conduct need not be the sole and exclusive factor in death
(concurrent causation)
 But how far attenuated can you get?

o Analysis / Takeaway
 A conviction of murder is proper if a defendant participates in the final
overt act that causes death, but not where a defendant is involved merely
“in the events leading up to the commission of the final overt act, such as
furnishing the means”
 In other words, an act is murder if defendant participates in final act, but
not if defendant is involved in events leading up to final act

- People v. Brady – Crashing Planes. Foreseeability. NOTE pp. 575 (Cal. Ct. App. 2005)
o Facts: Brady (Δ) recklessly causes a bush fire in a remote area that engulfed his
meth lab. One fire plane deviated and crashed into another, killing both pilots
(Vs).
o Holding: The deaths were foreseeable given the fire’s remote location would
require aircraft.

- State v. Montoya – But-For Ending Foreseeability. NOTE pp. 576 (MN 2002)
o Facts: A bodyguard wounded Lowery (V). The guard’s associate Montoya (Δ)
then drove and abandoned V in a secluded area where V died.
o Process: TC convicted on murder on the theory Δ caused death by preventing
help.
o Issue: Does testimony that only immediate medical aid could have saved V
undermine causation?
o Holding: Yes. The state failed to prove that but-for Δ’s actions, V would have
survived.
33
 - People v. Warner-Lambert Co. – Exploding Gum. Remoteness. pp. 578 (NY 1980)
o Facts: W-L (Δ) manufactured gum using two explosive substances. Δ’s insurance
warned that there was a possible hazard. The factory exploded killing several
(Vs). No hard proof as to cause.
o Process: TC found evidence before GJ not enough to establish the foreseeably of
the immediate, triggering cause of the explosion.
o Issue: Is just but-for causation enough?
o Holding: The standard of negligence sufficient for criminal liability for homicide
requires a different type and amount of proof than that required under tort law. Δ
needs to be the “sufficiently direct cause” of the offense.

- People v. Kibbe – Frozen Victim. Sufficiently Direct Cause. NOTE pp. 577 (NY 1974)
o Facts: Kibbe and conspirators (Δs) abandoned their helplessly drunk robbery
victim (V) on a dark road half-a-mile from the nearest shelter, without glasses,
shoes, or outer clothing and his trousers pulled down and shirt pulled up. A
passing truck killed V.
o Holding: Eh, Δs’ conduct was a “sufficiently direct cause” of V’s death; it is not
necessary that the ultimate harm is something foreseeable as related to the acts of
the accused. It was predictable that a truck might hit Δ.

Assisted Suicide
Assisted Suicide as Criminal Homicide
o Majority: Like Campbell and Kevorkian, one who successfully urges or assists another to
commit suicide is not guilty of murder, at least so long as the deceased was mentally
responsible and was not forced or deceived.
o MPC §210.5.(1): permits criminal homicide charges for assisted suicide only if the actor
“purposely causes such suicide by force, duress, or deception.”

Assisted Suicide as an Independent Offense

o Majority: Non-criminal homicide assisted suicide is still a felony ≈ manslaughter.
o MPC §210.5.(2): “purposefully aid[ing] or soliciti[ng] another to commit suicide is guilty of a
felony in the second degree if [it] causes such a suicide or an attempted suicide, and
otherwise a misdemeanor.”

Cases
- People v. Campbell (1983)
o Facts
 Campbell and Basnaw were drinking together. Campbell knew that his
wife and Basnaw had slept together. Campbell told Basnaw to kill himself
and gave him a gun. Basnaw killed himself.
o Issue
 Is furnishing the means for suicide murder?
o Holding
 No

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 o Analysis
 Suicide, by definition, excludes homicide. Just because the furnisher hopes
the recipient commits suicide doesn’t mean that the furnisher committed
murder.

o People v. Kevorkian (Mich. 1994)

 Facts
 Defendant Kevorkian assisted two women in committing suicide
who were suffering from conditions causing great pain or severe
disabling. The women were the “last ones in the chain” to actually
bring about the deaths.
 Issue
 Can Kervorkian be convicted of murder when he intentionally
provided the means for suicide?
 Holding
 No

- People v. Roberts – Placing Poison in Reach. NOTE pp. 587 (Mich. 1920)
o Facts: Roberts (Δ) placed a glass of poison within reach of his wife (V), who was
in pain, had tried and failed to kill herself, and had asked for him to provide it. V
drank the poison.
o Issue: Is a conviction for murder proper if Δ is only an accessory before the fact to
something not a crime, in this case, suicide was not a crime in Michigan
o Holding: Yes. Δ was not charged with accessory to suicide but murder, which Δ
did.

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III. WHY DO WE PUNISH? THEORIES, INSTITUTIONS, PRACTICES

Foucault – Discipline and Punish

- Overview
o Crime has come to be defined as a moral wrong.
 We used to punish people for their acts. Now, we punish people for who
they are. [What does this mean for deterrence? Can we deter?]
 The development of prisons
 Framing crime as a moral failure of the criminal keeps people from
questioning and criticizing the penitentiary system and the larger criminal
justice system.
o Thesis: We do not punish people for acts but for who people are
 A historical analysis in three parts
 Ancien Régime brutality – punishment by ‘marking’ the body with
power, e.g. Damiens’ execution
 The Reformers – regimentation, discipline, moralization, and failed
gradation
 The Modern –internalized surveillance and the “accumulation of
men”
 Key idea: Orthopedic Power
 Firm corrective measures and regimenting minutia leads to
productive docile populations
 Key idea: moralization of behavior keeps people from questioning &
criticizing the system
 Petty crimes were transformed into moral wrongs to place the less-
than-full-human poor into penitentiaries
 Key idea: spectacle to surveillance
 The Ancien Régime
o focused on punishment as spectacle—the many looking in
at the few
o The punishment is visible
 The modern system
 The panopticon isolates and observes—the few looking in on the
many
 The punishment is subtle and in degrees

Harcourt, Post-Modern Meditations on Punishment

- Harcourt suggests punishment is culturally determined and biased. The carceral state cites
empirical studies, but these still inject biases and social / cultural assumptions into the
criminal justice system. Mass incarceration is a tool to maintain white (economic)
supremacy.
- The carceral state and its tactics (racial policing, maintaining order) are justified as being
rational solutions

36
 - But, the assumption and predictive tools underlying the carceral state are not reliable, are
biased. How can the overarching system claim to be rational if its theoretical support is
unreliable?
- The solution is randomizing punishment within relative bands of potential punishment
(e.g., robbery has a lower band than homicide).

Retribution – Looking Backwards at Defendant’s Conduct

Kant: Jus talionis (eye for an eye)

o Crimes are moral wrongs because they violate categorical imperatives (the penal law)
o Touchstone is moral blameworthiness: punishment comes along with the responsibility of
being a moral agent.
o Should not use people as a means to an end (utilitarianism)

Moore: Retribution is the view that punishment is justified by the moral culpability of those who
receive it. Duty to punish where offender deserves it.

Morris: Those who break the law violate the social contract, so it is reasonable and just to punish
them. Society is mutual advantage; do not allow unfair advantage.

IMMANUAL KANT – The Philosophy of Law pp. 93

o Take-away: We should punish because and only because there was a moral wrong.
o “The penal law is a categorical imperative [a universal moral rule]; and woe to him who
creeps through the serpent-windings of utilitarianism to discover some advantage that may
discharge him from the justice of punishment.”
o It might be beneficial to run a surgical experiment on a willing prisoner and release them if
successful, but “justice would cease to be justice if it were bartered away for any consideration
whatever…”
o We must punish the guilty so that the “bloodguiltiness may not remain upon the people; for
otherwise they might all be regarded as participators in [the crime].”
MICHAEL MOORE – The Moral Worth of Retribution pp. 95
o Take-away: “A retributivist punishes because, and only because, the offender deserves it.”
o “For a retributivist, the moral culpability of an offender also gives society the duty to punish.”
o “The moral desert of an offender is a sufficient reason to punish him or her…that future crime
might also be prevented by punishment is a happy surplus.”
HERBERT MORRIS – On Guilt and Innocence pp. 96
o Take-away: Crime is the breaking of the social contract and punishment addresses this.
o “It is just to punish those who have violated the rules and caused the unfair distribution of
benefits and burdens.”
JEFFRIE MURPHY – Marxism and Retribution pp. 97
o Take-away: Criminal behavior is often caused by the deprivations of the oppressed classes and
the pressures of capitalism, “If justice…is based on reciprocity, it is hard to see what [the poor]
are supposed to reciprocate for.” This undermines our moral right to punish, at least sometimes.

37
 o When crime results from a life-long deprivation, harassment, and exclusion, “would we
still want to talk—as many do—of his suffering punishment under the rubric of ‘paying a
debt to society’?...Debt for what?
JOHN MACKIE – Retribution: A Test Case for Ethical Objectivity pp. 98
Take-away: How does inflicting pain pay down a debt owed?

Utilitarianism – Looking Forward to Effect

BENTHAM – The Utilitarians pp. 91

o Take-away: “All punishment is mischief: all punishment in itself is evil. Upon the principle of
utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to
exclude some greater evil.”
BENTHAM – Principles of Penal Law pp. 91
o Take-away: If the perceived punishment outweighs the perceived pleasure of an act, the
potential actor will not carry it out.
o “Pain and pleasure are the great springs of human action. When a man perceives or supposes
pain to be the consequence of an act, he is [pressured to not do it].”
o “In matters of importance, every one calculates…with more or less correctness.”
JAMES WILSON – Thinking About Crime pp. 112
o Take-away: Deterence based on rational actor theory is dumb.
o “[T]he socially imposed consequences of committing a crime, unlike the market consequences
of shopping around for the best price, are characterized by delay, uncertainty, and ignorance. In
addition, some scholars contend that a large fraction of crime is committed by persons who are
so impulsive, irrational, or abnormal that even if there were no delay, uncertainty, or ignorance
attached to the consequences of criminality, we would still have a lot of crime.”
PAUL ROBINSON & JOHN DARLEY – The Utility of Desert pp. 113
o Take-away: Social group sanctions and internalized norms are the most powerful deterrents, not
legal sanctions. Cf. Marx.

38
 o “More than because of the threat of legal punishment, people obey the law (1) because they fear
the disapproval of their social group if they violate the law, and (2) because they generally see
themselves as moral beings who want to do the right thing as they perceive it.”
THEODORE PARKER –Reconsidering Rehabilitation pp. 115
“How can it be justice to punish as a crime that which the institutions of society render unavoidable?”

Law and Economics

BECKER – Crime and Punishment: An Economic Approach (1968) CW

o Take-away: There is an economically ideal point where the expenditures in catching and
punishing are maximized and the relative economic loss of crime is minimized.
o This inflection point means that, inevitably, there is an ideal amount of any crime, even murder:
“How many offenses should be permitted and how many offenders should go unpunished”
POSNER – An Economic Theory of Criminal Law (1985) CW
o Take-away: The major role of criminal law is to prevent people from bypassing the actual
market for goods and services, prevention should make their individual utility from crime
lower than from legitimate economic activity.
o Posner continues to state the idea of earlier scholars while adding no value
o A true economic approach to criminal law needs to throw away such ideas like “morality” and
“pre-action’
BECKER & EWALD – Becker & Foucault on Crime and Punishment (2013)
o Take-away: Where Foucault showed the flaws in the modern penal state, Becker provided
the solution: “a model of a penal policy that moves away from homo criminalis toward a
new kind of objectivation of criminal behavior—the model of homo economicus.”

Critical Theory

BALKIN – The Crystalline Structure of Legal Thought (1986) CW

o Take-away: Like molecules in crystals, which align themselves in an ordered patter
repeated at every level of the structure, legal arguments in defense of doctrines share a
common structure repeated at every level of complexity.
o “If one attempts to view legal thinking as a coherent system of moral directives it becomes
hopelessly complicated and confusing, however, if it is viewed dialectically as a continuing series
of struggles between various sets of opposed ideas, its structure becomes relatively simple and,
and crystal clear.”

Time Framing

KELMAN – Interpretive Construction in the Substantive Criminal Law

o Take-away: “Unconscious interpretive constructs shape the way we view disruptive
incidents, but they are never identified or discussed by judges or commentators,” among
these is how much time and, thus what circumstances around considered and in what light.
o Time framing (Use on the exam to distinguish for Prosecution/Defense)
● How much context to consider has massive ramifications for the free-will of the incident.
● Narrow Time Framing – typically shores up intentionality

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  Status Crimes. Addiction could render a drug possessor blameless for their act
of possessing drugs, because the addiction rendered them choiceless.
● US v. Moore (Wright Dissenting) if we narrowly read an addict’s
actions, there is no choice to possess in that moment.
 Voluntary Act Requirement.
● Martin v. State (surpa, public drunkenness after being carried from
house) the court narrowed from a possible voluntary decision, say, to
drink and assault his wife, to the involuntary public profanity.
● Broad Time Framing – typically implies determinism
 Status Crimes. “Even if we should not blame people for being sick, we may well
blame them for becoming sick;” alternatively, framed even broader, we may see
even the initial drug use as determined by environmental factors.
 Voluntary Act Requirement.
● Decina (supra, epileptic driver) the court broadened from an involuntary
epileptic episode to consider Δ’s earlier decision to knowingly drive
● “Most critically, the interpreter's ability to convince himself of the legitimacy, or better,
the necessity of a narrow focus eliminates the more obvious political tensions inherent
in the choice of an intentionalist account. Narrow time-framing simply excludes all the
potentially explanatory background data. For instance, a criminologist's familiar category
for homicide—that the crime is fundamentally victim-precipitated disappears in ordinary
criminal law discourse, except in those rare provocation cases where the victim enrages
the perpetrator just before the killing, rather than over some longer time period. The
distinction between those who are partially exculpated because they were enraged once
(provoked), and those who are inculpated though they were tortured for years before
reacting makes no sense as a matter of retribution and only superficial sense in terms of
deterrence.”
o Disjointed vs. Unified Accounts
● “While we sometimes unify an overt criminal decision with its backdrop, our more usual
technique is to say, in essence, that the criminal moment stands separate, as a matter of
technique, from even obviously relevant background.”
● Disjointed – eases blaming
 The Thief. They illegally altered the distribution of goods.
● United – softens blame
 The Thief. “The justification of the distribution of goods that preceded the
"theft" is decidedly not an issue” using a disjointed lens.
 The dominate class does not seem criminal, even if their wealth is ill gotten.
Their disruption is harder to pinpoint than a thief’s more obvious one. “Criminal
trials implicitly assume that property systems are followed by theft rather than
that real property systems are continually being created by a social struggle that
includes everything from alternately encouraging and discouraging the flow of
illegal aliens to ‘stealing.’”

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CAPITAL PUNISHMENT

41
42
THEORIES OF CAPTIAL PUNISHMENT

STEIKER & STEIKER – Sober Second Thoughts: Reflections on Constitutional Regulation of

Capital Punishment, (1995)
o Take-away: The death penalty is unfair because of a lack of guidance
● Compare with McGautha, infra.
o Nearly everyone falls into two camps critical of Furman and its progeny
● On one hand: The court has over-involved itself in capital punishment leading to endless
delays and useless micro-regulation.
● On the other: The court has abandoned it’s Furman mandate to meaningfully regulate
capital punishment, just “tinkering with the machinery of death” but leaving the systemic
and fundamental issues of discrimination untouched.
o “The body of doctrine produced by the Court is enormously complex and its applicability to
specific cases difficult to discern; yet, it remains unresponsive to the central animating
concerns that inspired the Court to embark on its regulatory regime in the first place… How
and why did the Court create a body of law at once so messy and so meaningless?”
● It could be the result of “warring architects”
● Or, “perhaps the Justices have retained current death penalty doctrine despite its failings
…because at some level they appreciate its success as a façade[,] at making participants
in the criminal justice system and the public at large more comfortable with the death
penalty than they otherwise would be or should be.
 This allows people to “internalize” capital punishment as unthinkably normal
 “[B]y legitimating the most naked use of physical force by the state, law might
go a long way toward legitimating state power generally.”
● Or maybe it suffers because there has not been a comprehensive jurisprudential review
o Narrowing has not worked
● Aggravated circumstances: Court has not limited the number of aggravating
circumstances a state can list – result is that, according to study by Baldus group, 86% of
people convicted of Murder over 5-year period were death eligible
● Proportionality requirement: Court has been hesitant to narrow cases with potential for
death penalty based on the death penalty being disproportionate to the crime committed
o Heightened reliability
● Gregg court invoked need for “heightened reliability” in death penalty cases, but the
reality is that the procedural protections in death penalty cases are not that robust
● Numerous contexts in which death penalty cases receive no additional safeguards
● Inadequate representation
● Courts employ same deferential standard for IAC claims
● Legal representation in death penalty cases is “notoriously poor”: “Many states, including
Texas, rely on court appointments rather than a specialized defense organization to
provide representation to indigent defendants. Attorneys appointed under such schemes
are frequently underfunded, inexperienced, unsympathetic to their clients, and thoroughly
incapable of mounting an effective defense during either the guilt or punishment phases
of the capital trial.”
● No special protections in the availability of postconviction proceedings
o Two possible alternative approaches to the death penalty
● Outcome-oriented approach—try to push for proportionality and equality in outcomes
● Focus on greater procedural safeguards in the death penalty context

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BRIGHT– Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst
Lawyer, 103 Yale L.J. 1835, (1994), CW
o Takeaway: Death penalty unfair to poor people, since, in states that still use death penalty, the
indigent defendants are not given good defense counsel (supplement with “notoriously poor”
counsel argument in Steiker, infra)
● Public defenders in general are over-worked, under-paid, and under-funded; assigned
council can be even worse.
 An impoverished person was sentenced to death in Jefferson County, Georgia, in
violation of one of the most basic guarantees of our Bill of Rights-the right to a
representative jury selected without discrimination on the basis of race."
African-Americans make up 54.5% of the population of that county, but the jury
pool was only 21.6% black, a severe under-representation of over 50%. But this
issue was not properly raised and preserved by the court-appointed lawyer for
the accused.
● When stakes are even higher, and it’s a question of deprivation of your life, money
should never be a factor in whether death penalty is imposed; having good counsel
should not be question of how much state gives to public defender’s office
● “Providing the best quality representation to persons facing loss of life or imprisonment
should be the highest priority of legislatures, the judiciary, and the bar. However, the
reality is that it is not. So long as the substandard representation that is seen today is
tolerated in the criminal courts, at the very least, this lack of commitment to equal justice
should be acknowledged and the power of courts should be limited. So long as juries and
judges are deprived of critical information and the Bill of Rights is ignored in the most
emotionally and politically charged cases due to deficient legal representation, the
courts should not be authorized to impose the extreme and irrevocable penalty of
death. Otherwise, the death penalty will continue to be imposed, not upon those who
commit the worst crimes, but upon those who have the misfortune to be assigned the
worst lawyers.”
 Poor defendants are deprived of actual adversarial process; the rich are not

LAWRENCE III– The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 Stan. L. Rev. 317-88 (1987), CW
o Takeaway: Death penalty unfair b/c racially biased
● Attacking Washington v. Davis which ruled: appeals challenging the constitutionality of a
facially neutral law to prove a racially discriminatory purpose (n.b., not impact) on the
part of those responsible for the law’s enactment or administration
 First: A motive-centered doctrine of racial discrimination places a very heavy
and often impossible burden of persuasion on the wrong side of the dispute
 Second: The injury of racial inequality exists irrespective of the decision-makers’
motive; racially disproportionate harm should trigger heightened judicial scrutiny
without consideration of motive
● Requiring proof of conscious or intentional motivation is ridiculous not just because
such evidence is easy to hide but, also, because what we know of the human mind tells us
that such racial bias is subconscious
 We are all racist but unaware of race-based behavior
 Impact is a good way to spot this unconscious behavior and, further, left-
unchecked such impact entrenches racism in the system.
● If just looking at discriminatory intent, makes it really hard to show facts to say, for the
same crime, more black people are getting the death penalty. This entrenches racism in
system that is systematically putting people to death.

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Death Penalty Jurisprudence

Cases
- Furman v. Georgia – [Capital Punishment, as Administered Then, Violates the Eighth
Amendment’s Prohibition on Cruel and Unusual Punishment. NOTE pp. 536 (SCOTUS
1972)]
- Holding: (5-4 per curiam) No reasoning.
o Concurring: (Brennan) All capital punishment violates human dignity.
o Concurring: (Marshall) All capital punishment is too excessive to its deterrence
effect.
o Concurring: (Douglass) There is a strong potential for discrimination in capital
punishment.
o Concurring: (White) Capital punishment is in the decline and too infrequent to
deter.
o Concurring: (Stewart) “These death sentences are cruel and unusual in the same
way that being struck by lightning is cruel and unusual. [I]f any basis can be
discerned for the selection of these few to be sentenced to die, it is the
constitutionally impermissible basis of race.”
o Dissents: Stressed the long tradition and continued acceptance of capital
punishment.
- Gregg v. Georgia (1976)
o Facts
 Gregg convicted of death-eligible homicides. The jury imposed the death
penalty pursuant to statutory guidelines.
o Issue
 Whether the death sentence of murder is a per se violation of the Eight
(cruel and unusual punishment) and Fourteenth (equal protection/due
process) Amendment.
o Rule: Capital Punishment does not invariably violate the Constitution
o Holding
 The Georgia statutory system under which Gregg was sentenced to death
does not violate the Constitution.
 Under Furman, the imposition of the death penalty cannot be
arbitrary or capricious.
 Here, we have a carefully drafted statute that ensures the
sentencing authority has enough information and guidance.
 Georgia’s statute (described on pp. 570–572) is adequately
particularized to the defendant’s circumstances
 Plurality: (Stewart + 2) The Eighth Amendment evolves drawing “its
meaning (1) from the evolving standards of decency that mark the
progress of a maturing society” as checked by (2) the basic concept of the
dignity of man. Dignity requires punishment neither be a wanton infliction
of pain nor grossly out of proportion to the crime.

45
  Evolving standards is no longer persuasive, since 35 states passed
new capital regimes.
 Dignity is no longer persuasive since: (a.i) the retributive purpose
of expressing society’s “moral outrage” is strong and (a.ii)
prevents self-help; and (c) the “inconclusive” debate on the value
of capital punishment as a deterrence lies with the legislature.
 “[T]he concerns expressed in Furman that the penalty of death not
be imposed in an arbitrary or capricious manner can be met by a
carefully drafted statute that ensures that the sentencing authority
is given adequate information and guidance.” The requirement for
one of ten aggerating conditions and the addition of mitigating,
even non-enumerated mitigation, satisfies Furman’s want of a
meaningful basis. The existence of “unfettered discretion” at
earlier phases—e.g. prosecution—is not determinative.
 Dissent: (Marshall) “If the constitutionality of the death penalty turns…on
the opinion of an informed citizenry, then even the enactment of new
death statutes cannot be viewed as conclusive.” If people knew the truth
“they would consider it shocking, unjust, and unacceptable.” The
deterrence and retributive (which is actually utilitarian re: self-help) value
is nearly null. The pure retributive argument that killing because they
deserve it cannot stand alone.

o Takeaway
 “[T]he concerns expressed in Furman that the penalty of death not be
imposed in an arbitrary or capricious manner can be met by a carefully
drafted statute that ensures that the sentencing authority is given adequate
information and guidance.”
 Furman concerns allayed by carefully drafted statute that gives sentencing
authority adequate information and guidance
o Post Gregg death penalty statutes
 Pyramid
 need to have all elements below to reach death sentence
 Weighing
 aggravating and mitigating circumstances, weigh them (can’t be a
consideration of the number of circumstances)
 Special questions (TX),
 adds a 4th question that essentially includes weighing mitigating
circumstances

- Atkins v. Virginia (2002)

o Facts
 Atkins was convicted of a death-eligible murder. An expert witness
testified that he was “mildly mentally retarded.” Evidence showed he had
an IQ of only 59. Atkins was sentenced to death.
o Issue

46
 Whether the Eighth Amendment prohibits death sentences for mentally
retarded [intellectually handicapped / disabled] defendants.
o Holding
 Yes, it is a cruel and unusual punishment.
 It is consensus that intellectually handicapped people are less culpable for
their conduct than those with “normal” intellectual capacities.
Administering like punishment for unequal culpability offends retributive
notions.
 They are also less deterred because of their lesser ability to process
information, control impulses, etc., which offends notions of deterrence.
 They are also less capable of providing meaningful assistance to counsel
to defend their cases.
o Takeaway
 Intellectually handicapped individuals cannot be sentenced to death.
 Death of intellectually disabled doesn’t serve purpose of punishment, can’t
show mitigation, higher risk of wrongful execution

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Race and the Death Penalty

Cases
- McCleskey v. Kemp (1987)
o Facts
 McCleskey was convicted of death-eligible murder. The jury
recommended death, and the judge sentenced him accordingly. The
Baldus study showed that the death penalty in Georgia was imposed in a
racially discriminatory manner against Black defendants, with particularly
great frequency when the murder victim was White.
o Issue
 Whether the Baldus study showed that Georgia’s capital-sentencing
process violated the Eighth (cruel and unusual) and Fourteenth (due
process) Amendments
o Holding
 No, the study does not demonstrate a constitutionally-significant risk of
racial bias in Georgia’s capital-sentencing process
o Reasoning
 No evidence of discriminatory intent on the part of the jury or the
legislature.
 Slippery slope – can’t have people bringing up studies challenging these
systems in federal court
 Institutionally competency – the problem is one that legislatures, not
courts, can address
o Dissent (Brennan): Contextualization of the case by pointing to the courts’
historical role in segregation.
o Takeaway
 If you take Powell’s argument at face value, the (purely) constitutional
argument, as framed, makes sense. You need evidence of
discriminatory/invidious intent of the jury or the legislature.
 No evidence submitted indicating jury bias.
 The statute itself does not extend special protection to one class of
people to the targeted detriment to another. No legislative history
supporting such a contention.
 A statistical argument, by itself, is a losing argument
 Statistics alone will not suffice to demonstrate constitutionally-significant
risk of racial bias
 Need evidence of discriminatory intent

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V. JUSTIFICATIONS AND EXCUSES

Overview
- Justifications and defenses negate liability even when all elements of the offense are
present.
- Justifications assert that what the accused did was a good thing / that society is better off
based on the action (e.g., self-defense).
- Excuses assert that while the conduct was harmful, the defendant cannot be expected to
do otherwise (e.g., due to duress, mental disorder).
- Responsibility
o A justification means you accept responsibility for the action, whereas you do not
do so under an excuse.

Self-Defense
- MPC § 3.04
o (1) – force upon another person is justifiable when the actor believes that such
force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person
o (2)b – (1) the use of deadly force is justifiable only when the actor believes that
force is necessary to protect himself against death, bodily harm, kidnapping, or
sexual intercourse compelled by force or threat.
o Not justifiable if the actor provoked the use of force with the purpose of causing
death or serious bodily injury (3.04 (2)(b)(i)).
- MPC § 3.09
o (1) – Justification for self-defense not available when the actor’s belief as to the
unlawfulness of the force being used against him (or the lawfulness of an arrest) is
erroneous AND his error is due to ignorance or mistake as to the provisions of the
Code, any other provision of the criminal law, OR the law governing the legality
of an arrest or search.
o (2) – When the actor is reckless or negligent in forming his belief regarding the
necessity of force, the (self-defense) justification is unavailable for offenses
involving a mens rea of recklessness or negligence.
 (1) This is proxy for establishing gradation. If prosecutor wants to charge
Bob with murder, and Bob argues self-defense but was reckless or
negligent in using self-defense, prosecutor can bring manslaughter charge
instead, because Bob cannot use his self-defense justification for that.
o (3) – When the actor is justified in use of force but recklessly or negligently
injures or creates a risk of injury to innocent people, the justification is
unavailable in a prosecution for such recklessness or negligence to innocent
people.

- Case Study: U.S. v. Peterson (D.C. Cir. 1973)

o Conditions for using deadly use of force (in self-defense):

49
 (1) There must have been a threat, actual or apparent, of the use of deadly
force against the actor;
 (2) Threat must have been unlawful and immediate;
 (3) Actor must have believed he was in imminent peril of death or serious
bodily harm, and that his response was necessary to save himself; AND
 (4) These beliefs must have been honestly entertained and objectively
reasonable in light of the circumstances
o Takeaway
 Self-defense is justified when the actor reasonable believes that defense
force is necessary
 Subjective – did actor have belief?
 Objective – was the belief reasonable?

- Case Study: People v. Goetz (N.Y. 1986)

o Facts
 Four youths were in the subway car with defendant Goetz, who had a
concealed handgun, which he began carrying after a mugging a few years
back. One of the youths walked up to Goetz and said “give me five
dollars.” There is no evidence that any of the youths displayed weapons,
although two had screwdrivers in their coats, which they said were for
breaking into the coin boxes of video machines. Goetz pulled out his gun
and shot each of the youths, shooting twice at one whom he had missed
initially. He admitted to the shootings and told the police that he would
have shot them more times had he had more bullets. All of the victims
survived, although one is paralyzed and has some brain damage.
o Procedural History
 A grand jury indicted defendant on attempted murder, assault, and other
charges. The lower courts dismissed the charges on the ground that the
prosecutor’s explanation of “reasonably believes” to the grand jury was
erroneous.
o Statute
 Penal Law § 35.15(1): “A person may use physical force upon another
person when and to the extent he reasonably believes such to be necessary
to defend himself or a third person from what he reasonably believes to be
the use or imminent use of unlawful physical force by such other person.”
 Penal Law § 35.15(2): “A person may not use deadly physical force upon
another person under circumstances specified in subdivision one unless (a)
he reasonably believes that such other person is using or about to use
deadly physical force or (b) he reasonably believes that such person is
committing or attempting to commit a kidnapping, forcible rape, forcible
sodomy or robbery.”
o Holding
 Court reinstates all counts of the indictment.
o Reasoning
 NY adopted much of the MPC but crucially added “reasonably” before
“believes.”

50
 Interpreting the statute to say “reasonable to him” would render
“reasonably” meaningless and would allow subjective views to completely
exonerate him.
 Lower courts’ interpretation would allow citizens to set their own
standards for permissible use of force.
 Reasonableness inquiry happens with regard to the actual circumstances of
the particular incident, including past experiences of the defendant.
o Takeaway
 “Reasonably” must be interpreted objectively. Can’t be solely based on
the defendant’s own subjective interpretation, or else anyone could get
away with a self-defense justification by just saying that they believed
they were justified. However, this “objective” standard can still be
informed by the specific circumstances of the case (e.g., D’s past
experiences).

Battered Woman Syndrome (Subset of Self-Defense)

- Case Study: State v. Norman (N.C. 1989)
o Facts
 Norman was badly abused during 25-year marriage. She shot her husband
while he was asleep and was charged with first-degree murder. At trial,
she presented evidence of suffering from battered wife syndrome as proof
of a perfect self-defense. Jury convicted of voluntary manslaughter.
Norman was sentenced to six years in prison.
o Holding
 Self-defense is only available for imminent harm. Self-defense is not
justified to protect oneself against threat of future harm.
 Narrow time-frame – think Goetz and Kellman
o Reasoning
 Necessity defense is available only where defendant killed victim due to
reasonable belief that death / great bodily harm was imminent
 Here, evidence did not show that Norman reasonably believed she was
confronted with threat of imminent death / harm
 There was amble time to resort to other means to prevent further abuse
 No evidence of decedent’s actions prior to death that would indicate a
reasonable belief on the part of Norman that there was an imminent danger
o Takeaway
 It will be difficult to argue an ongoing, consistent threat of abuse. The
threat must be something you can point to as concrete and material at the
time of the act of self-defense.

Duty to Retreat
- Traditional View
o English common law imposed strict duty to retreat. A person could use deadly
force in self-defense only after exhausting every chance to flee, when his back
was against the wall.
- Late 1800s View (True Man Doctrine)

51
 o The law will not permit the taking of a human life to repel mere trespass, but a
true man who is without fault is not obliged to fly from an assailant. Erwin v.
State (Ohio 1876).
- Modern View
o The “true man” doctrine (originating in Erwin) is rejected in some jurisdictions
(e.g. Ohio) and accepted in others (e.g. Tennessee).
 True man / no retreat / stand your ground rule considered the majority
approach.
 MPC adopts a version of this rule with some exceptions.
- Castle Exception
o In all jurisdictions requiring retreat before using deadly force, an exception is
made when the defendant is attacked in her own home by an intruder. People v.
Tomlin (N.Y. 1914).
 Gets tricky with guests and co-occupants
 Only a few states require retreat from an attacking guest.
Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-
Defense.
 A father threatened by his son could kill the son rather than retreat.
Tomlin; State v. Jones (S.C. 2016); MPC § 3.04(2)(b)(ii)(1).
 Some courts require homeowner to flee if possible from a co-
occupant attacker. State v. Gartland (N.J. 1997).
- Stand Your Ground
o Even if you could retreat, you can stay and use force
o Erodes the necessity requirement for self-defense
o If someone says that they were standing their own ground, law enforcement can’t
arrest unless you can show probable cause that the force used was unlawful
o Highly controversial
 The burden shift makes it difficult to demonstrate that the individual
standing their ground was doing so unlawfully

52
Law enforcement use of lethal force

MPC §3.07. Use of Force in Law Enforcement.

o (1) A subjective not objective test
o (2)(a)(i) The actor must make the purpose of the arrest known, or believe it is known or
cannot be known by the person being arrested
o (2)(a)(ii) If warranted, the warrant must be or be believed to be valid.
o (2)(b) Deadly Force Requires:
● Felony arrest; AND
● By a peace officer or assistant; AND
● The force used creates no substantial risk to innocents; AND
● The actor believes
 The underlying crime involved the use or the threat of deadly force OR
 Delayed apprehension creates a substantial risk of death or serious harm.

NYPL §35.30.1 Use of physical force in making an arrest or in preventing an escape.

1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest,
or of preventing or attempting to prevent the escape from custody, of a person whom he or
she reasonably believes to have committed an offense, may use physical force when and to
the extent he or she reasonably believes such to be necessary to effect the arrest, or to
prevent the escape from custody, or in self-defense or to defend a third person from what
he or she reasonably believes to be the use or imminent use of physical force;  except that
deadly physical force may be used for such purposes only when he or she reasonably
believes that:
a. The offense committed by such person was:
i. a felony or an attempt to commit a felony involving the use or attempted
use or threatened imminent use of physical force against a person;  or
ii. kidnapping, arson, escape in the first degree, burglary in the first degree or
any attempt to commit such a crime;  or
b. The offense committed or attempted by such person was a felony and that, in the
course of resisting arrest therefor or attempting to escape from custody, such
person is armed with a firearm or deadly weapon;  or
c. Regardless of the particular offense which is the subject of the arrest or attempted
escape, the use of deadly physical force is necessary to defend the police officer or
peace officer or another person from what the officer reasonably believes to be the
use or imminent use of deadly physical force.

53
- Michael Brown
o Grand jury didn’t indict Officer Wilson in the shooting death of Michael Brown
o In New York, almost all felony indictments result from a grand jury process
o New York grand juries are tasked with the decision of whether there is sufficient
evidence—probable cause—to charge a person of a crime
- Eric Garner
o Grand jury didn’t indict Officer Pantaleo
o Medical examiner ruled death a homicide
o Officer Pantaleo was fired in 2019
o In 2020, NY repealed a law shielding police disciplinary records
 Pantaleo had 7 investigations since 2009,not including Eric Garner
- Saheed Vessell
o Brooklyn resident with bipolar/trauma, known to local police, neighborhood.
Quirky/erratic, but never violent. Episode one day where he used a silver pipe to
point at people like gun (same image from our session last week.) Some people
called cops. Non-local cops showed up. None had fired shots before. Took them
5-10 seconds after they pulled up to shoot him – total 10 shots between 3 officers.

54
 Necessity and Duress

Common Law Necessity vs. Duress

o Necessity: Δ was justified in violating a criminal prohibition, because in the circumstances it
was good that they did, because doing so was the lesser evil
● Requires: (1) a threat, usually natural, of (2) imminent injury to the person or
property (3) for which there are no (reasonable) alternatives except the commission
of the crime, where (4) the defendant’s acts prevent an equal or more serious harm,
and (5) the defendant has not created the conditions of his own dilemma.
● Schoon: (1) they were faced with a choice of evils and chose the lesser evil; (2) they
acted to prevent imminent harm; (3) they reasonably anticipated a direct causal
relationship between their conduct and the harm to be averted; and (4) they had no
legal alternatives to violating the law.
o Duress: Δ was excused not because it was good to violate the law, but because the circum-
stances were so compelling that normally law-abiding people might have done the same
● Requires: (1) A well-founded reasonable fear, generated by (2) a threat from a
human being of (3) an imminent (or immediate) (4) serious bodily harm or death (5)
to himself (or sometimes to a near relative) (6) not of his own doing
 Basically, just cases where Δ personally was threatened, but most states now
allow the claim of duress when another’s body or life is threatened
 Δ could not claim duress if he killed a victim.
 Once the threat has ceased, Δ must cease his criminality.

MPC Necessity vs. Duress

o §3.02 Choice of Evils
● Δ must believe his conduct is necessary to avoid harm to himself or others and that
the harm inflicted by committing a “criminal” act is less serious than that sought to
be avoided by the criminal law
● Code rejects most common law restrictions on the claim of necessity:
 Does not require that the actual infliction of harm be imminent;
 Does not distinguish between threats from human versus nonhuman forces;
 Does not restrict the claim to instances involving a threat of death or serious
bodily harm;
 Does not preclude the defense in a homicide
● If Δ has been reckless or negligent in creating the conditions requiring the defense,
he may still raise the claim in all instances where he is charged with a purposeful or
knowing crime. He may still be prosecuted for a reckless or negligent crime.
o §2.09 Duress:
● An affirmative defense
● Personal injury still required but drops threat from serious to any physical harm
● Swaps reasonableness for a “person of reasonable firmness in the Δ’s situation”
● Rejects most of the specific limitations imposed by the common law:
 Duress is a valid claim in all prosecutions, including homicide
 There is no restriction to “imminent harm”
 The threat may be to any person
● Like the common law, disallows the defense 55 if the defendant recklessly placed
himself in the position where he could be under duress.
- Necessity is a justification
o Defendant violated a criminal prohibition, but considering the circumstances, it
was good that he did, because doing so was the lesser evil
- Common law
o A threat of imminent injury to the person or property,
 What’s imminent?
 Traditionally natural causes like a blizzard
o No (reasonable) alternatives except the commission of the crime,
 An objective standard independent of the defendant’s beliefs
o The defendant’s otherwise criminal conduct would prevent an equal or more
serious harm, AND
 Choice of evils: Use the same or less harm/evil/force or suffer the threat of
injury
o The defendant hasn’t created the conditions of his own dilemma.
 For example, the defendant couldn’t have provoked the incoming harm.
- MPC § 3.02
o (1) Conduct which the actor believes to be necessary to avoid a harm or evil to
himself or to another is justifiable, provided that:
 (a) the harm or evil sought to be avoided is greater than that sought to be
prevented by the law defining the offense charged;
 (b) neither the Code nor other law defining the offense provides
exceptions or defenses dealing with the specific situation involved; AND
 (c) a legislative purpose to exclude the justification claimed does not
plainly appear
o (2) When the actor was reckless or negligent in bringing about the situation
requiring a choice of harms or evils, the necessity defense is unavailable for
conduct involving the mens rea of recklessness or negligence.

- Case Study: Regina v. Dudley and Stephens

o Facts
 Sailors were shipwrecked out at sea, 1,600 miles from the Cape of Good
Hope. A handful of crewmembers and the captain were stranded on a
smaller boat. Dudley and Stephens killed a boy for food, to the captain’s
and the boy’s dissent. The seamen were later saved.
o Issue
 Is the killing of one stranded seaman to save the others a killing of
necessity, such that the killing is justified?
o Holding
 No necessity defense is available to preserve your own life.
 “Absolute divorce of law from morality would be of fatal
consequence”
 “It is not correct, to say that there is any absolute or unqualified
necessity to preserve one’s life”
56
 o Reasoning
 While self-defense is a form of necessity, the “temptation” of starvation
while adrift, while clearly dire, is not enough to make a deliberate and
willful killing lawful. In that case, a court should not say it is a man’s duty
to take another life in order to sustain his own, but to sacrifice himself.
 The court questions the practicality or moral standard of such a rule: If
everyone is weak and dying, as happened in this case, who is to be killed
and who is the killer? Who should decide?
 This feels clearly retributive. There’s no indication they’d ever do this
again, and this doesn’t represent deterrence. But it was also a test case, so
perhaps there’s some ex ante utilitarianism in there somewhere.
o Takeaway
 Choice of evils must be between two crimes.

- People v. Unger (Ill. 1977)

o Facts
 Defendant was an inmate a state prison who was subjected to threats of
sexual violence and actual sexual violence. Defendant sought help but
escaped after he received death threats. He claimed that he planned to
return once he could find help.
o Holding
 Unger is entitled to raise the necessity defense for jury consideration.
o Reasoning
 This isn’t about duress, which requires deprivation of free will.
Lovercamp factors for prison escape are instructive, but not controlling.
Prisoners are entitled to the same necessity defense as free folk.
 Specific, immediate threat of death, forcible sexual attack, or
substantial bodily harm
 No time for a complaint to authorities or a history of futile
complaints
 No time to resort to courts
 No evidence of force or violence towards prison staff or other
innocent people in the escape
 Prisoner immediately reports to the proper authorities when he is a
safe place
o Takeaway
 When a defendant reasonably believes that an offense is justifiable
because he would escape greater injury, he is entitled to a defense of
necessity. While the Lovercamp factors are relevant to deciding whether a
defense of necessity is proper for an escaped prisoner, they are not
controlling, and the prisoner is allowed the same defense under the statute
as anyone else.

57
- U.S. v. Schoon (9th Cir. 1992)
o Facts
 The defendants barged into the IRS and protested the federal
government’s involvement in El Salvador. They caused a ruckus inside the
building and were arrested. Defendants claimed necessity.
o Holding
 Defendants are not entitled to the necessity defense.
o Reasoning
 Four necessary elements to prove necessity:
 Faced with a choice of evils and choose the lesser evil
 Acted to prevent imminent harm
 Reasonably anticipated a direct causal relationship between their
conduct and the harm to be avoided
 No legal alternatives to violating the law

- People v. Lovercamp – Federal Prison Escape. NOTE pp. 889 (SCOTUS 1980)
o Holding: A bona fide effort to surrender or return once safe is necessary for
federal escapes.

- Commonwealth v. Leno – Needle Exchange Necessity. NOTE pp. 891 (Mass. 1993)
o Holding: “That some states prohibit the distribution of hypodermic needles…and
others do not, merely indicates that the best course to take to address the long-
term [necessity] remain a matter of debate.”

- Commonwealth v. Hutchins – Medical Necessity. NOTE pp. 893 (Mass. 1991)

o Holding: “In our view, the alleviation of the defendant’s medical symptoms, the
importance to the defendant of which we do not underestimate, would not clearly
and significantly outweigh the potential harm to the public were we to declare that
the defendant’s cultivation of marijuana and its use for his medicinal purposes
may not be punishable. We cannot dismiss the reasonably possible negative
impact of such a judicial declaration on the enforcement of our drug laws…”
o Dissent: “In my view, the harm to an individual in having to endure such
symptoms may well outweigh society’s generalized interest in prohibiting him or
her from using the marijuana in such circumstances.”

- Southwark v. Williams – Economic Necessity. NOTE pp. 894 (Engl. 1971)

o Holding: “If homelessness were once admitted as a defense to trespass, no one’s
house could be safe. Necessity would open a door which no man could shut.”
Compare with Magadini.

- People v. Fontes – Economic Necessity. NOTE pp. 894 (Engl. 1971)

58
 o Holding: Refusing necessity instruction for Δ who forged a check for $454.75 to
feed their children, who had not eaten for 24 hours and suffered from severe
health problems to the degree Δ claimed they feared “malnutrition and death.”
Food banks had turned Δ down.

Duress
- Overview
o Duress is an excuse
 Defendant is accorded a defense not because it was good to violate the
law, but because the circumstances were so compelling that normally law-
abiding people might well have done the same
o Common law
 (1) A well-founded fear, generated by (2) a threat from a human being of
(3) an imminent (or immediate) (4) serious bodily harm or death (5) to
himself (or sometimes to a near relative) (6) not of his own doing
 Fear must be reasonable
 Common law mostly limited duress to cases where D personally was
threatened, but most states now allow the claim of duress when any
person’s life or bodily harm is threatened by the duressor
 At common law, D could not claim duress if he killed a victim. Instead, he
was required to sacrifice himself to the duressor.
 Once the threat has ceased, D must cease his criminality.
- MPC § 2.09
o (1) It is an affirmative defense that the actor was coerced to do so by the use of, or
a threat to use, unlawful force against his person or third person, which a person
of reasonable firmness in his situation would’ve been unable to resist
o (2) This defense is unavailable if the actor recklessly placed himself in a situation
in which it was probable that he would be subjected to duress. The defense is also
unavailable if he was negligent in placing himself in such a situation, whenever
negligence suffices to convict.
o (3) It is not a defense that a woman acted on the command of her husband, unless
she acted under coercion under (1).
o (4) When the conduct of the actor would otherwise be justifiable under MPC 3.02,
this section doesn’t preclude a defense.

- State v. Toscano (N.J. 1977)

o Facts
 The defendant was involved in insurance scheme. He testified that one of
the ringleaders of the conspiracy called him and threatened him and his
wife. The trial judge refused to instruct the jury on the defense of duress,
stating that it was applicable only when an act was committed in response
to a threat of present, imminent, or impending death or serious bodily
harm.
o Holding
 Toscano is entitled to a duress jury instruction.

59
 o Reasoning
 New Jersey doesn’t have a duress statute, so we use common law
principles.
 The threat of harm must be “present, imminent and pending” and
“of such a nature as to induce a well-grounded apprehension of
death or serious bodily harm if the act is not done.”
 To excuse a crime, the threatened injury must induce “such a fear
as a man of ordinary fortitude and courage might justly yield to.”
 Loss of job, denial of food rations, economic need, and prospect of
financial ruin are inadequate.
o Takeaway
 Duress is an objective standard – a situation inducing fear such that a man
of ordinary fortitude and courage would yield

- U.S. v. Fleming
o Facts
 Defendant was court martialed for collaborating with Korean combatants
when he was held captive. The alleged collaboration occurred after forced
marches, physical abuse, and threats of being left for dead in a cave. The
military judge instructed that duress available only if he had a well-
grounded apprehension of immediate and impending death or of
immediate serious bodily harm. Fleming was convicted.
o Holding
 Defendant is not entitled to the duress defense.
o Reasoning
 Fleming’s resistance had not brought him to the last ditch; the danger of
death or serious bodily harm was not immediate.
 If being a POW doesn’t present a (constant) threat of immediate
harm, I don’t know what will.
o Takeaway
 Danger too remote and unknown cannot give rise to the successful duress
defense

60
Insanity

Justifications of the Insanity Defense

o Utilitarian: Punishment is pointless, a civil commitment is preferable.
o Retributive Theory: Without free-will, retributive theory makes no sense. See Wainwright.

Terminology Defined
(1) Mental Illness: a medical term referring to a recognized disorder
(2) Insanity: A legal term to refer to the mental state at the time of the offense and
precludes criminal responsibility
(3) Incompetence: a legal term that refers to a person’s mental state at the time of a legal
proceeding as nonunderstanding or unable to participate at any stage, including
execution
(4) Irresistible Impulse: The recognition of right/wrong does not penetrate to an “affective
level,” so this means that the M’Naghten rule fails to reach up these affective disorders.

MPC § 4.01 Mental Disease or Defect Excluding Responsibility.

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to…law.
(2) As used in this Article, the terms “mental disease or defect” do not include an
abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Commentary to MPC § 4.01

“Insanity defense is about drawing the line between condemning and committing – between moral
blameworthiness (…allowing retribution) and lack of control. Requiring a “knowledge” standard like
M’Naghten places those who might cognitively know but may not be able to control their behavior as
criminals rather than the ill. Therefore unless the defendant had the “substantial capacity” to control
his conduct as a result of a mental illness he should not be convicted.”

MPC § 4.04 Mental Disease or Defect Excluding Fitness to Proceeded (generally accepted)
“No person who as a result of mental disease or defect lacks capacity to understand the proceedings
against him or to assist in his own defense shall be tried, convicted or sentenced for the commission
of an offense so long as such incapacity endures.”

Burden of Proof, pp. 967-8

(1) JXs differ as to how much evidence is required to rebut the presumption: People v Hill
(Colo. 1997) (only “some”), Jamezic v. State (Ala. 1996) (enough to raise a reasonable doubt)
(2) A dozen states hold to the MPC rule requiring the prosecution to prove sanity beyond a
reasonable doubt. Commonwealth v. Keita (Mass. 1999). However, post-Hinckley most states
and the federal government place the burden with the defence.

Guilty But Insane

Post-Hinckley some states (e.g., GA) added an option allowing for juries to find a Δ guilty but
mentally insane, allowing them to be confined
61 for treatment without a civil commitment.
 Standards of Legal Insanity
o
MPC: Δ lacks substantial capacity to either (1) appreciate the criminality [wrongfulness] of
Cases his conduct OR (b) conform his conduct to the requirements of law. See Blake.
- o M’Naghten’s
The M’Naghten Case – Presumed
Rule: A person isSanity. Δ at
insane if, Mustthe Show
time ofThey Didn’t Know
the offense, she wasthe Nature of
laboring
their
underAct or aThat
such is Was
defect Wrong
of reason to Do
arising Such
from an Act.
a disease ofpp.
the 968
mind,(H.L.
that:1843)
(1) she did not know
o Rule: “Jurors ought to be told in all cases that every
the nature and quality of her act; OR (2) if she did know it, she did not man is to be presumed
know to be
that what she
sane…until
was doing was wrong.theSee
contrary be proven
M’Naghten to their satisfaction; and that to establish a
and Porter.
defence on the ground of insanity, it
o “Know:” Can be interpreted as literal knowledge must be clearly proved
or a deeper that, at the time of the
appreciation.
o committing
“Nature andofQuality:”
the act, Very
the party accused
narrow, was labouring
something under such a defect of
like a hallucination
reason… as not to know
o “Wrong:” legal or moral wrong? the nature and quality of the act he was doing; or if he
did know
o “Irresistible it, that
Impulse:” he did
Three nothave
states know he wasM’Naghten
modifies doing whattowas wrong.”
include: OR (3) acted from
o Facts: MacNaghten (Δ) murdered the PM’s secretary
an irresistible and uncontrollable impulse. See Davis (cited in Blake) by mistake when he
intended to assassinate the PM. Δ told police he tried to kill the PM since he
believed the Conservatives in his town were following and planning Δ’s murder.
o Process: Extensive evidence was introduced at trial Δ was delusional and insane.
Instructions were that Δ was insane if Δ lacked understanding at the time of the
offense that he was “violating the laws of both God and man.” Δ was found not
guilty on insanity grounds.
o Takeaway
 Insanity comes into play if the defendant doesn’t know nature and quality
of what they’re doing or doesn’t know what they’re doing is wrong
 Cognition rule – did defendant know what they did was wrong?
 M’Naghten’s Case is the old rule

- The King v. Porter – M’Naghten Explained. pp. 970 (Australia 1933)

o Holding: “It is perfectly useless for the law to attempt, by threatening punishment,
to deter people from committing crimes…they cannot be in the least [so
deterred].”

62
- Blake v. US – Bank Robbery. MPC Definition Applied. pp. 971 (5th Cir. 1969)
o Facts: Blake (Δ), from a well-to-do family, had a life of mental problems, drug
use, alcoholism, and brushes with the law. He bizarrely walked into a bank,
demanded money, and left.
o Process: At trial, there was psychiatric testimony that Δ was schizophrenic and
was suffering from a psychotic episode when he ‘robbed’ the bank. The burden
was on the state to prove beyond a reasonable doubt that Δ was having an episode
at the time of the offense.
o Issue: Should the M’Naghten or MPC standard be used to determine insanity?
o Holding: A person is not responsible for criminal conduct if at the time of such
conduct, as a result of mental disease or defect, he lacks substantial capacity
either to appreciate the wrongfulness of his conduct or to conform his conduct to
the requirements of law.
o Takeaway
 Insanity defense is available if the defendant lacks capacity to appreciate
wrongfulness or to conform to requirements of law

- US v. Lyons – Rejecting the MPC Standard. pp. 962 (SC 1986)

o Facts: Lyons (Δ) became addicted to narcotics after a prescription, says his drug
addiction affected his brain both physiologically and psychologically,
o Process: When charged for illegal narcotics, Δ sought to present and was denied
expert testimony as to his lack of capacity to conform his conduct resulting from
his drug usage.
o Issue: Does the existing insanity defense standard of a “lack of capacity to
conform one’s conduct to the requirements of the law” coincide with current
medical and scientific knowledge?
o Holding: No, Blake is reversed and M’Naghten returned to. The MPC standard
was unworkable.
 Even psychiatrists cannot measure “substantial capacity” and “the line
between an irresistible impulse and an impulse not resisted is probably no
sharper than between twilight and dusk.” Citing Prof. Bonnie, The Moral
Basis of the Insanity Defense.
 Moral mistakes abound when juries and experts try to parse undeterrable
and undeterred.
 Inability to understand pretty much encompasses inability to control
anyways.
 How does a prosecutor even ‘prove’ a Δ was in control of their facilities
anyway?
o Dissent: Mens rea requires the ability to freely choose between right and wrong.
The majority's narrowing of the insanity defense based on policy considerations is
unwise. The relevant inquiry of the insanity is a subjective one focused on the ∆’s
actual state of mind.
o Takeaways
 A person is not responsible for criminal conduct on the grounds of
insanity only if at the time of that conduct, as a result of a mental

63
 disease or defect, he is unable to appreciate the wrongfulness of that
conduct.
 A general shift away from the MPC approach

- Kahler v. Kansas – There is No Constitutional Right to M’Naghten. CW (SCOTUS 2020)

o Facts: Khaler (Δ) became abusive towards wife after her affair. Δ had OCD and
depression, and was on medication. Δ killed wife, two daughters, and wife’s
grandmother.
o Process: Sentenced to death. Experts testified he had OCD, depression, BPD,
paranoia, and narcissism, said he did not make rational choice during killings, had
“lost control.”
o Law: (KS) Jury cannot consider mental disease/defect as defense to crime except
to show Δ lacked sufficient Mens Rea. Not relevant whether Δ knew nature &
quality of actions or wrongness.
o Issue: Does a state effectively abolishing their insanity defense violate the VIIIth
and XIVth?
o Holding: No. (Kagan+4) As long as MR is provided for, that is enough, no statute
is needed. The Constitution cannot dictate one standard of the myriads out there
over all others.
o Dissent: (Breyer+2)KS effectively destroys the insanity defense, a “fundamental
precept of our criminal law,” thus, unconstitutionally strips process.
o Reasoning
 Mens rea is always a requirement, and there remains a defense of being
mentally incapable of forming the requisite mens rea.
 Thus, there functionally remains an insanity-like defense.
 SCOTUS won’t adopt one version of the insanity defense over others; the
states can choose.

- State v. Green – Rare Appellate Insanity Success. NOTE pp. 958 (Tenn. 1982)
o Facts: Green (Δ) had a long history of mental illness—including attacks on family
—and failure of treatment. Homeless after running away from home, 18yo Δ shot
and killed a police officer with the officer’s own revolver before leaving behind a
cryptic note and fleeing. After an initial finding of insanity, Δ received an
intensive drug therapy and, later, was found competent.
o Process: During trial mental health experts testified to Δ’s insanity while the state
only offered police testimony that Δ appeared “normal.” The jury rejected Δ’s
insanity defense and convicted him of first-degree murder.
o Holding: Reversed. The state failed to prove its burden of disproving insanity as
was then law.

- Yates v. State – Rare Appellate Insanity Success. NOTE pp. 959 (Tex. App. 2005)
o Facts: Yates (Δ) reported intense visions and voices after the birth of her first
child. Over the next years she had four more children, was repeatedly committed

64
 to psychiatric units, and suffered multiple suicide attempts. When tapered of an
antipsychotic, she drowned her children, trying to “save them from Satan.”
o Process: During trial, 12 mental health professionals testified, all saying Δ was
psychotic at the time of her offense and all but one saying she met the state’s
insanity standard. The jury rejected Δ’s insanity defense and convicted her of
capital murder, which was reduced to LWOP.
o Holding: Reversed. There was faulty testimony given by the sole dissenting
expert.
o Takeaway
 This case shows the potential for injustice in a criminal trial that turns on a
battle of the experts.
 This also illustrates how unpredictably a jury will find on an insanity
defense.

- Dusky v. US – Insanity Test. NOTE pp. 961 (SC 1960)

o Holding: “the test must be whether Δ has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and whether he
has a rational as well as factual understanding of the proceedings against him.”

- Ford v. Wainwright – Insanity Test. NOTE pp. 962 (SC 1986)

o Rule: Executions of the insane are barred by the Eighth Amendment
o Concurrence: (Powell) While the common law concern that an insane Δ might die
without being able to share exculpatory information only has slight merit today,
the other common law concert—that such executions are simply cruel—has
vitality. The retributive goal of law, further, cannot be justified when the Δ does
not have the mental capacity to understand the nature of the death penalty nor
why it was imposed on them.

- State v. Perry – Death Row and Forcible Anti-Psychotics. NOTE pp. 963 (S.C. 1993)
o Holding: Of course. The state cannot subject an insane death row prisoner to
antipsychotic medication, against his will, in order to restore his sanity so that he
may be executed.
o Sell v. United States – Rarely the State May Force Anti-Psychotics to Enable an
Offender to Stand Trial. NOTE pp. 962 (SC 2003)
o Holding: While rare, involuntary antipsychotic treatment requires: (1) the state
show an important government interest in trying Δ; (2) forcible medication is
likely to render Δ competent and not interfere with Δ’s ability to work with
counsel; (3) alternatives less intrusive are unlikely to achieve the same results;
and (4) the treatment is medically appropriate.

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VI. EXPANDING LIABILITY – Vague Statutes and Rules

Traditional Methods of Expanding Liability Beyond Completed Crime

Where Inchoate Conduct ‘Fits-in’

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Attempt

Attempt Regimes
o Statutory
 NY: “…when, with intent to commit a crime, he engages in conduct which tends to
effect the commission of such crime.”
 CA: “…who attempts to commit a crime, but fails, or is prevented or intercepted…”
 IL: “…with intent to commit a specific offense…does any act which constitutes a
substantial step toward the commission of an offense.”
o MPC §5.01.(1): who “…acting with the same culpability otherwise required…
 (a) purposefully engages in a conduct that would constitute a crime if the attendant
circumstances were as he believes them to be; OR
 (b) …does or omits to do anything with the purpose [or belief] of causing [prohibited
results] without further conduct on his part; OR
 (c) purposefully does or omits to do anything that, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a course
of conduct planned to culminate in his commission of a crime.”

Mens Rea – Two Mens Reas to Show

o Specific Intent: Attempt is always a specific intent crime, that is, a purpose to produce the
proscribed result, ruling out attempt for recklessness or negligence, even if that would
suffice for the underlying crime.
o General Intent: A few statutes read as if a general intent to commit a crime is enough.

Actus Reus – where preparation ends and attempt begins

o The “Dangerous Proximity” Test: When the act is “so near to [the crime’s] accomplishment
that in all reasonable probability the crime itself would have been committed, but for timely
interference,” there is the requisite actus resus for attempt. Rizzo. Bell. Hyde (quote supra).
o The Pure “Equivocality” Test: When the action is one in which Res ipsa loquitur. The action
cannot be equivocal, that is ambiguous, it must manifest criminal intent. Barker. Miller.
 Counter Policy Argument: Glanville.
o The MPC §5.01(2) “Substantial Step” Test: Provides a non-exhaustive list of conduct, e.g.
reconnoitering or luring, that qualifies as an actus reus since it is “strongly corroborative of
the actor’s criminal purpose.”

Defenses
o Abandonment/Renunciation
 MPC §5.01(4): If Δ abandons or prevents the commission of the offense under
circumstances manifesting a complete and voluntary renunciation.
o Impossibility: Common Law (abolished in a majority of states and the MPC)
 Factual impossibility: No defense. E.g., pickpocketing an empty pocket.
 Legal impossibility: Δ cannot be held liable for attempt if the law does not proscribe
the goal Δ sought to achieve or there was a factual mistake. E.g., Δ believing V is
under 18yo attempts to have sexual intercourse. If V is actually of-age then there are
no grounds for attempt (MPC §5.01(1)(a) rejects this defense).
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 Punishment
o Merges: Once the underlying offense is consummated, the attempt charge no longer is
valid.
o Common Law: All attempts are misdemeanors, regardless of seriousness.
o Statutory: (Majority) Usually a reduced factor of the punishment for the underlying offense.
o MPC: (Minority) A crime of the same grade as the underlying, except in the case of first-
degree felonies which are reduced to second-degree. MPC §5.05.(1).
 Rejects marginal deterrence as a possible.

Terminology
o Complete Attempt: All of the steps Δ set out to do are completed, but the criminal goal fails,
e.g., buying a gun, waiting for the target, firing, but missing.
o Incomplete Attempt: Some of the steps Δ set out to do are completed, but Δ quits or is
prevented from continuing, e.g., police intervene.
o Locus Penitentiae: the opportunity to change one’s mind that courts seek to preserve

Policy Justifications
o Utilitarian:
 Equal Punishment: A person who attempts to commit a crime is no less dangerous
and no less in need of rehabilitation than one who succeed. Luck shouldn’t matter.
See philosophy infra.
 Lesser Punishment: We should encourage repentance and abandonment.
o Retributive: The moral culpability is the same regardless of if the harm occurs.

MPC § 5.01
(1) A person is guilty of attempt if, acting with the kind of culpability otherwise required for
commission of the crime, he:
(a) purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be;
(b) when causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing or with the belief that it will cause such result
without further conduct on his part; OR
(c) purposely does or omits to do anything which, under the circumstances as he believes
them to be, is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.
(2) Substantial step under (1)(c) requires “strongly corroborative of the actor’s criminal
purpose.” The following may prove a substantial step:
(a) lying in waiting, searching for, or following the contemplated victim
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place
contemplated for its commission
(c) reconnoitering the place contemplated for the commission of the crime
(d) possession of materials to be used for committing the crime, which are specially
designed for such use or which serve no lawful purpose under the circumstances

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 (e) possession, collection, or fabrication of materials to be used in the crime, at or near
contemplated place of crime, where such possession, collection, or fabrication serves no
lawful purpose under the circumstances
(f) soliciting an innocent agent to engage in conduct constituting an element of crime
(3) Engaging in conduct that would render you complicit under MPC § 2.06 if the crime were
committed, is guilty of attempt, even though the crime is not committed or attempted by the
principal criminal actor.
(4) It is an affirmative defense that the actor abandoned the criminal effort or otherwise
prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. This defense doesn’t affect the liability of an accomplice
who didn’t join in abandonment or prevention.

Cases

People v. Rizzo – Mere Preparation vs. Attempt. The Rule of Dangerous Proximity Permits Only
Those Acts Which But-For Intervention Would Consummate. Locus Penitentiae. pp. 618 (NY
1927)
- Rule: Attempt requires Δ intentionally commits an act that tends to the commission of a
crime and which is so near to accomplishment of the crime that, in all reasonable
probability, the crime itself would have been committed but for timely interference.
- Holding: Rizzo (Δ) and crew planned to rob whoever carried payroll from a bank. The
crew set about trying to find the target, but were arrested before ever laying eyes on the
victim to be.
- Charge: Attempted robbery.
- Law: “An act, done with intent to commit that crime, and tending but failing to effect its
commission” is criminal attempt.
- Issue: Were Δ’s acts an actual step in the offense of robbery beyond mere preparation?
- Holding: No. “The law must be practical, and therefore considers those acts only as
tending to the commission of the crime which are so near to its accomplishment that in all
reasonable probability the crime itself would have been committed, but for timely
interference.” While there is still time to repent or be diverted—that is, there is a
locus penitentiae—there is no crime.

Smallwood v. State (Md. Ct. App. 1996)

- Facts
o Smallwood was convicted of assault with intent to murder three rape victims.
Evidence showed he knew about the dangers of HIV contraction and raped his
victims nonetheless. The prosecution analogized the defendant carrying HIV to
carrying a deadly weapon and deploying it through unprotected sex.
- Holding
o No intent to kill.
- Reasoning
o The risk of death by AIDS is too far removed, relative to firing a gun at the head
of a victim, as in Raines. You need more evidence.

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  Actively conceal HIV-positive status and refuse request to wear condom
(Hinkhouse)
 Jabbing with a syringe, shouting “I’ll give you AIDS.” (Caine)
- Takeaway
o To convict only on the risk of death, death must be the natural and probable result
of the act. Otherwise, you need specific intent to kill (intent must be evident in
act)

Commonwealth v. Bell – Rizzo Applied. NOTE pp. 620 (Mass. 2009)

- Facts: Bell (Δ) met an undercover cop posing as a prostitute, who ‘agreed’ to let him have
sex with her 4yo in a nearby park. As Δ followed her lead to the child, he was arrested.
- Charges: Attempted rape.
- Holding: “[W]e look to the actions left to be taken, or the ‘distance or gap between the
defendant’s actions and the (unachieved) goal of the consummated crime—the distance
must be relatively short, the gap narrow, if the defendant is too be held guilty of a
criminal attempt.” Here, Δ had yet to see a child, nor pay, nor arrive at a location to
commit the crime. It was too early.

McQuirter v. States – Racism in Inferring Attempt Intention. Rejection of the “Dangerous

Proximity” Test for Some Kind of Social Value Test. pp. 622 (Ala. 1953)
- Holding: “In determining the question of intention the jury may consider social
conditions and customs founded upon racial differences, such as that the prosecutrix was
a white woman and the defendant was a Negro man.” Mostly here to make us mad.
- Takeaway
o The jury may consider social conditions and customs founded on racial
differences.

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Complicity – Blame for Another’s Conduct

Flavors of Complicity
o Accomplice: A secondary party (SP) is an accomplice of a primary part (PP) in the commission
of an offense if SP intends to assist PP in the crime and, in fact, assists.
o Conspiracy: Infra.

Common Law and Statutory Complicity Regimes

o Blackstone: There are two types of parties to crimes
(1) Principles:
a. In the First Degree is the actor or absolute perpetrator of the offense with
the requisite mens rea for the offense
b. In the Second Degree is one who intentionally assisted in the presence,
actual or constructive, of the principle in the first degree
(2) Accessories:
a. Accessory Before the Fact a principle in the second degree but not present
b. Accessory After the Fact one who, knowing another’s guilt, assists them
avoid arrest, trial, or conviction.
o Typical Modern Statutory Changes
(1) Erase the distinctions in punishment except for accessories after the fact;
(2) Principles no longer need to be convicted before accessories; and
(3) Accomplices are just tried with the principle’s crime.
o MPC §2.06.(3) Types of Accomplices
(1) One who solicits a PP to commit an offense;
(2) One who does, agrees to, or attempts to aid a PP in planning or committing;
(3) One who fails a legal duty to prevent an offense, without proper effort; or
(4) One who is declared so by law.

Mens Rea
o Specific Intent: (1) SP intends the assistance, Hicks, and (2) Δ intends it to further the PP.
o Modified: Instead (2) is “SP must have the mental state required for the offense.”
 This allows negligence or reckless accessories. McVay and Roebuck.
 The MPC follows this approach
o Attendant Circumstances:
 E.g., SP assists PP have intercourse with V. PP realized V is nonconsenting but SP
negligently believes V is consenting.

Cases
- Hicks v. US [Take Off Your Hat. Mere Presence During a Crime is Not Enough to Make
One an Accomplice. pp. 662 (SCOTUS 1893)]
o Facts: Cherokees Hicks (Δ, SP) and Rowe (PP) knew Colvard (V), a white man.
Four witnesses overseeing the three observed the following: PP twice aiming his
rifle at V with SP laughing each time, SP telling V to “take off his hat and die like
a man,” PP fatally shooting V, and PP and SP riding off together. SP denied
encouraging PP and alleged trying to dissuade him, fearing PP, and only riding
off with PP because he was coerced into showing a road before departing ASAP.

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 o Issue: (1) Can unintentional aid/abetment qualify one as accomplice and (2) can
one who was present but did not aid be guilty as an accomplice?
o Holding: (1) No. The intent of the words matters. (2) Yes, but only if there is
evidence of a pre-existing conspiracy to aid and abet the crime and such aid was
not found to be necessary.

- State v. Gladstone [Narc. Accomplice Requires More Than Pointing to One Who
Probably Will Commit A Crime. pp. 664 (Wash. 1970)]
o Facts: Gladstone (Δ, SP) was asked by fellow student and narc Thompson to sell
him weed. SP did not have enough and volunteered his dealer Kent (PP) and, at
Thompson’s request drew a map. Thompson bought weed from PP.
o Issue: Is just indicating somebody probably would commit a crime aiding or
abetting?
o Holding: No. “There is no aiding and abetting unless one ‘in some sort
associate[s] himself with the venture, that he participate[s] in it as in something
that he wishes to bring about.” There is no evidence Δ offered to direct people to
PP nor that Δ even had contact with PP, which fails to meet the standard that all
the words used—even the most colorless, ‘abet’—an implication of purposive
attitude toward the crime.
 MUST BE AN Association with the PRINICPLE

- State v. McVay – [Boiler Explosion. pp. 674 (RI 1926)]

o Rule: A SP’s mens rea be “lower” than the underlying crime, here negligence =
recklessness.
Facts: Kelley instructed Captain McVay and an engineer of a passenger ship to
depart. The boiler exploded, killing three. McVay and Grant were indicted as
principals for manslaughter. Kelley was indicted as an accessory before the fact.
Holding: The indictment against Kelley can stand.
 Kelley need not have intended the result of death, only that he
intentionally directed and counseled the grossly negligence act, which the
indictment charges resulted in the crime.
Takeaway: The mens rea required for accessory in a result-based crime is
only the intent to act, not the intent to cause the result.
Kelley was charged with counseling and procuring the principals to disregard
their duties and negligently create steam.

- Commonwealth v. Roebuck – When an Unanticipated Crime Results from A Conspiracy

the Same Culpability is Needed. pp. 675 (Pa. 2011)
o Facts: Roebuck (Δ, SP) helped orchestrate V being lured into an apartment
complex where V was unintentionally killed with malice.
o Charge: (Accomplice to) Third-degree Murder (an unintentional killing with
malice)
o Issue: Is it possible to be convicted as an accomplice to third-degree murder?
o Holding: [Per MPC] One who aids in committing a crime is an accomplice
(§2.03(3)(ii)) and an accomplice is guilty of the underlying crime if the same
culpability of the offense (§2.03(4)), here, recklessness. “This diffuses any

72
 impression that an accomplice must always intend results essential to the
completed crime.”
o accomplice liability doesn’t require that the defendant had the conscious
objective to help cause a particular result.

- People v. Luparello – Foreseeable Consequences Doctrine. pp. 682 (Cal. 4th App. 1987)
o Rule: “Aiders and abettors should be responsible for the criminal harms they have
naturally, probably, and foreseeably put in motion.”
o Facts: Luparello (Δ, SP) wanted to located his former lover, Terri. Δ had armed
friends (PPs) go to get the information “at any cost” from Terri’s husband’s friend
Martin (V), who was shot.
o Charge: (Accomplice to) first-degree murder.
o Holding: Δ is guilty not only of the offense he intended to facilitate or encourage,
but also of any reasonably foreseeable offense committed by the person he aids
and abets.
- A person can be liable for the unplanned and unintended acts of co-conspirators
that are the natural, probable, and foreseeable consequences of his assistance.
o Similar to the proximate cause inquiry (reasonably foreseeable).
o The fact that the accomplice or co-conspirator intended to facilitate some less
serious criminal act doesn’t render the foreseeable consequence doctrine
inapplicable.

- Roy v. US – Foreseeable Consequences Applied. NOTE pp. 684 (DC Ct. App. 1995)
o Facts: A police informant Miller (V) approached Roy (Δ, SP) to buy a handgun,
who told him to return later with $400 and referred him to Ross (PP). Ross robbed
Miller during the sale.
o Holding: A qualitatively different crime than that intended cannot be within the
scope of the natural and probable consequences doctrine. It is not enough that the
SP knew or should have known the PP might conceivably commit a crime, it must
be “a natural and probable” consequence in the “ordinary course of things,”
presupposing a reasonable predictable range.
o BUT See MPC Comment to §2.06
 Takeaway: Rejects the Foreseeable Consequences Doctrine
 “One who solicits an end, or aids or agrees to aid in its achievement, is an
accomplice in whatever means may be employed, insofar as they
constitute an offense fairly envisaged in the purposes of the association.
But when a wholly different crime has been committed, thus involving
conduct not within the conscious objectives of the accomplice, he is not
liable for it…[I]t is submitted that the liability of an accomplice ought not
to be extended beyond the purposes that he shares. Probabilities have an
important evidential bearing on these issues; to make them independently
sufficient is to predicate the liability on negligence when, for good reason,
more is normally required before liability is found.”

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Conspiracy

The Twin Meanings of Conspiracy

o An Inchoate Crime: Punishable whether or not the agreed upon offense occurs; however,
unlike attempt, you can be charged with both the underlying crime and conspiracy.
o Accessory Liability: Another basis for holding a person accountable for the consummated
offenses of another.

Punishing Inchoate Conspiracy

o Common Law: Punishment is graded without regard to the underlying crime, meaning
conspiracy to murder has the same maximum as conspiracy to commit a minor theft.
o Modified CL: Some states cap punishment to the underlying crime’s maximum sentence.
See, e.g., Rudder v. State (Md. Ct. Spec. App. 2008)
o Majority: Fix punishment for conspiracy at some term that is tied to but less than the
sentence provided for by the underlying crime.
o MPC: Fix punishment to the underlying crime, except for the most serious felonies.

Inchoate Conspiracy: Actus Reus and an Overt Act

o Common Law: No overt act is needed. Mulcahy.
o Statutes: American statutes typically require an overt act
 When the statute is silent the common law no-act rule applies. Whitfield.
 Even when required, it can often be satisfied by acts that would be considered
equivalent or mere preparation in attempt. Bertling. Yates.
 Some states require more substantial steps manifesting purpose.
Inchoate Conspiracy: Mens Rea
o Common Law: (Minority) requires (1) intent to agree; and (2) intend (purpose or knowledge)
that the object of their agreement be advanced. Lauria.
 Policy: Society has an interest in stopping the furnishing of wares to criminals.
o Combined: (Minority) requires purpose only for non-serious/felonious offenses. Lauria.
o MPC: (Majority) Requires purpose for both conspiracy and accomplice liability. See
§§2.06(3(a);) 5.03.(1).
 Nb. intent can usually be purposeful or knowledgeable but the MPC tightened it
here. Falcone, Direct Sales, and Lauria are all examples of knowing.
 Policy: Avoids creating a sweeping net of all who have had contact with crime.

Accessorial Liability Conspiracy

o Pinkerton Rule: Allows liability for all foreseeable substantive crimes committed by co-
conspirators to further the conspiracy, even those unknown or unaided. Pinkerton. Bridges.
 Rejected in some states as allowing the skirting of Mens Rea in applying more
serious crimes. Bridges. Bolden.

Policy Arguments
o Utilitarian: Deters the “special danger” posed by group criminal activity
o Retributive: Those who participate in encouraging or facilitating a serious crime, even if only
in a minor way, are morally responsible for even unexpected consequences.
 Counter: Sprawling conspiracy trials wear down procedural protections meaning
punishment may be mis-allocated to guilt.

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MPC § 5.03
(1) A person is guilty of conspiracy with another person or persons to commit a crime if with the
purpose of promoting or facilitating its commission he:
● (a) agrees with such other person or persons that they or one or more of them will engage
in conduct which constitutes such crime or an attempt or solicitation to commit such
crime; OR
● (b) agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.

(2) If a person guilty of conspiracy, as defined by (1), knows that a person with whom he
conspires to commit a crime has conspired with another person or persons to commit the same
crime, he is guilty of conspiring with such other person or persons, whether or not he knows their
identity, to commit such crime.

(3) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so
long as such multiple crimes are the object of the same agreement or continuous conspiratorial
relationship.

(5) No person may be convicted of conspiracy to commit a crime, other than a felony of the first
or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to
have been done by him or by a person with whom he conspired.

(6) It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the
success of the conspiracy, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose.

(7) Duration of the conspiracy

(a) conspiracy is a continuing course of conduct which terminates when the crime or crimes
which are its object are committed or the agreement that they be committed is abandoned by the
defendant and by those with whom he conspired; AND
(b) such abandonment is presumed if neither the defendant nor anyone with whom he conspired
does any overt act in pursuance of the conspiracy during the applicable period of limitation;
AND
(c) if an individual abandons the agreement, the conspiracy is terminated as to him only if and
when he advises those with whom he conspired of his abandonment or he informs the law
enforcement authorities of the existence of the conspiracy and of his participation therein.

Actus Reus Requirement

- Perry v. State (FL District Court of Appeal, 2014)
o Rule: Conspiracy requires explicit or tacit agreement between two or more
persons to commit a crime. Can be direct or implied evidence
o Dissent - by looking at the circumstances, there WAS enough to show there was
an implied agreement

Mens Rea Requirement

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 - People v. Lauria – Common Law Mens Rea. Message Service. pp. 713 (Cal. 1967)
o Rule: Conspiracy requires intent, which can be inferred from: (1) Δ having a stake
in the venture, e.g., inflating the rent of hotel rooms rented to sex workers; (2) Δ’s
service has no legitimate market, e.g., a wire of gambling information; (3) a
grossly disproportionate volume of illicit business so as to indicate courting those
customers, e.g., a wholesaler supplying almost entirely physicians abusing
prescriptions; and (4) the known crime is so heinous as to be a social
responsibility to stamp out, e.g, knowingly furnishing gasoline for construction of
bombs.
o Facts: Lauria (Δ) operated a telephone answering service that knew that, among
its customers, were several sex workers used. An undercover cop pretended to use
the service as a sex worker but Δ did not respond to implied needs to get more
customers. Δ defended his service and held to a policy of “as long as [sex
workers] pay their bills we tolerate them” like other customers.
o Issue: Was there a tacit, mutual understanding between co-conspirators?
o Holding: No. To hold Δ as a conspirator would be to “equate knowledge of
another’s criminal activity with conspiracy to further such criminal activity.”
 Together Falcone and Direct Sales indicate conspiracy requires (1)
knowledge of illegal use and (2) intent to further which can be inferred
from a special interest via “informed and interested cooperation,
stimulation, instigation [and] a ‘stake in the venture.’”
 The aggravated nature of the crime can also support inferred intent to
participate.

Conspiracy as Accessorial Liability

- Pinkerton v. US – [Liability for All Foreseeable Substantive Offenses. pp. 723 (SC
1946)]
o Rule: A person is liable for all foreseeable substantive offenses by co-
conspirators in furtherance of the conspiracy, even if they were unknown to
or unaided by the defendant.
o Facts: Brothers Daniel and Walter Pinkerton (Δs) were charged with ten
substantive violations of the Internal Revenue Code and conspiracy. Only Walter
participated directly in the commission of the substantive offenses. Walter was
found guilty on nine substantive counts and conspiracy, Daniel six and
conspiracy. Daniel was even in jail during some of the substantive counts.
o Issue: Can a Δ be charged with the substantive acts of a conspirator, even if the Δ
neither aided nor knew of the substantive acts?
o Holding: (Douglas) Yes. In a continuous conspiracy one is liable for all
substantive acts of co-conspirators until the conspiracy is consummated,
terminated, or there is a disavowal. “As the offense has not been terminated or
accomplished, he is still offending.”
o It would be a different case if the unknown substantive offense was not in
furtherance, within the scope of, or a reasonably foreseeable necessary or natural
consequence of the unlawful agreement.

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 o Dissent: (Rutledge) Daniel only agreed in the past to a general broad set of
offenses of the same character. Allowing this to sweep in all crimes that are of the
general character is too much.
- Pinkerton Rule: You are liable for the substantive offense committed by a co-conspirator
if:
o The act was in furtherance of the conspiracy;
o The act was within the scope of the unlawful project; AND
o The act was foreseeable as a necessary and natural consequence of the agreement

- State v. Bridges – Pinkerton Applied. Culpability. NOTE pp. 725 (NJ 1993)
o Rule: Under Pinkerton, a co-conspirator may be liable for the commission of
substantive criminal acts that are not within the scope of the conspiracy if they are
reasonably foreseeable as the necessary or natural consequences of the
conspiracy.”
o Facts: Bridges (Δ) got into a fight with Strickland at a birthday party. Δ left, got
two friends, picked up guns to hold of the crow while Δ beat up Strickland. On
returning, a member of the crowd stuck one of his two friends who, then, shot at
the crowd, killing one.
o Issue: Does accomplice liability require the same culpable mental state as the
substantive crime?
o Holding: No. Per Pinkerton, bringing weapons to hold back a hostile crowd while
beating one of their friends could foreseeably result in the shooting that happened
here.
o CIPDIP: (O’Hern) Allowing mere negligent appraisal of a situation to, as here,
result in a life imprisonment conflicts with the basis of criminal codes… Δ was
not even guilty of conspiracy to commit murder. This is extreme punishment
without requisite moral culpability.

- Bolden v. State – Rejecting Pinkerton in Part. NOTE pp. 731 (Nev. 2005)
o Holding: Permitting liability for specific intent crimes (burglary, kidnapping)
would allow the state to “sidestep” the statutory mens rea compared to general
intent (home invasion) offenses.
o US v. Blackmon – No Retroactive Pinkerton Liability. NOTE pp. 731 (2d Cir.
1988)
o Holding: “The confusion here is that with regard to liability for conspiracy, a
defendant may be legally responsible for acts of co-conspirators prior to that
defendant’s entry into the conspiracy [in the sense that such acts may be used as
evidence against him in the prosecution for the stand-alone crime of conspiracy],
whereas, with regard to substantive offenses, a defendant cannot be retroactively
liable for offenses committed prior to his joining the conspiracy.”

- US v. Wall – Rejecting Attributing New Offenses. NOTE pp. 732 (7th Cir. 2000)
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 o Facts: Wall (Δ) had a prior felony conviction. Δ’s co-conspirator possessed a
firearm and the state tried to attribute the possession to Δ thus violating a law
barring felons from owning guns
o Holding: “[T]he government uses a cut-and-paste approach, taking the firearm
possession by one conspirator and adding it to the felon status of another
conspirator, and thereby creating a substantive offense for that second
conspirator.” This is a bridge too far from Pinkerton.

- US v. Alvarez – Cocaine Shootout. NOTE pp. 732 (11th Cir. 1985)

o Facts: Alvarez and other cocaine dealers (Δs) were caught trying to sell cocaine to
a federal agent. Alvarez and one other entered a shootout where a federal agent
was killed and three other people wounded. Three of the conspirators had nothing
to do with the shootout but were convicted of second-degree murder via
conspiracy liability.
o Issue: Is murder a reasonably foreseeable consequence of a drug conspiracy?
o Holding: Yes. The nature of a large-scale drug deal is that the it is foreseeable
weapons will be brought and, possibly, used. Further, that one of the three carried
weapons and that they heard Alvarez say he’d rather die than return to prison
were further reasons to infer foreseeability.

Inchoate Crimes Overview

Attempt
Is this a substantial step to intentional murder? Is there a case for 5.01(2)(a)? (f)? (g)? If not a
substantial step, check (3), which imposes attempt liability for complicity.

Complicity
Initial problem that neither Kelly nor Jason killed anyone. Thus, to impose complicity liability on
Jason, you need to convict Kelly of attempt. Even if you go under complicity to attempted
murder, did Jason have the purpose of aiding and abetting Kelly’s attempt to murder someone? Is
Jason absolved because he was the intended victim? Is there a victim?

Conspiracy
Did Jason really agree to be complicit in Kelly’s murder or attempted murder? What’s the overt
act here?

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