Bradey Chambers

CRIMINAL LAW OUTLINE SPRING 2019

I. Introduction
a. Model Penal Code § 1.12(1)
i. No person may be convicted of an offense unless each element of such offense is proved
beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant
is assumed.
b. Nature, Sources, and Limits of the Criminal Law
i. What is the criminal law?
I. Colonies abided by English Common Law
II. Sources of law in America
a. Constitutions
b. Statutes
c. Common Law
d. Regulations
e. Court Rules
III. In English system, law announced through judicial proceedings
IV. Criminal law is not a common law course
ii. Requirement that people know what is acceptable/required of them so that you can abide
by it and conform your behavior to that aspect of the law.
iii. Common law crimes have been abolished by legislative bodies.
iv. Legislative function to define crimes/omissions though certain acts they can’t
I. Ex. Burning a flag is protected by 1st Amendment
v. Model Penal Code
I. American Law Institute published the Model penal Code in 1952
a. Akin to the Restatements, but for Criminal Law
II. AR modeled it’s penal code after the ALI Penal Code
c. Pre-Trial
i. State & Federal Crimes and Courts
ii. Ark. Const. Amend. 21 § 1
iii. Begins with charging document (acquisition must be in writing)
iv. What’s at state in a criminal case?
I. A person’s liberty
II. In a civil case, person’s property at stake.
v. Charging document must be drafted and filed
vi. May file an information or assembling grand jury indictment
I. Mostly file an information
vii. U.S. Gov (5th Amend) must charge through indictment but person may waive and the PA
follows complaint
viii. A person is charged when probable cause exists to believe a person has committed a
crime
ix. Once the charging document is filed, a person will appear at a hearing and will plead
either guilty or not guilty
x. Then plea negotiations stare OR then discovery starts, and Gov. must provide information
d. Trial by Jury
i. U.S. Const. Amen. 6 entitles a person to jury trial in a criminal case for non-petty
offenses
I. A petty offense is an offense for which the maximum penalty is incarceration for
6 months or less
II. From 1791-1968 states did not have to follow but do now
 ii. 1970 SCOTUS held that a 6 person jury and non-unanimous verdicts are acceptable
iii. In AR
I. 12 person juries and unanimous verdicts
iv. Jury Selection
I. Voir dire
a. Cause strikes
b. Preemptory Strikes
i. Because you don’t want them there, no cause
II. 1986 SCOTUS ruled that preemptory strikes cannot be based on race or sex
v. F. R. Crim. P. 24 Trial Jurors
I. Capitol crimes – 20 preemptory strikes
II. Felonies – 6 preemptory strikes
III. Misdemeanor – 3 preemptory strikes
e. Proof of Guilt at Trial
i. Proof Beyond a Reasonable Doubt
a. Person can only be convicted if each element of each offense is proved
beyond a reasonable doubt
II. In the Matter of Winship (1970)
a. In a juvenile defense case, (no jury), SCOTUS held person can be
convicted unless proved beyond a reasonable doubt
b. John Harlin epigram
i. Better to let a guilty person go free than convict an innocent person
c. John Roberts
i. The terrifying force of the State
III. State has a monopoly on the legitimate use of force
IV. Every state has its own definition of beyond a reasonable doubt
V. It is unconstitutional to shift the burden of proof to D
VI. MPC 1.12(1) reflects the requirement of the Due Process Clauses of the Const &
In the Matter of Winship
a. A person’s liberty will not be deprived
VII. AR defined beyond a reasonable doubt in Laird v. State (1972)
a. Jury instruction must accurately reflect the law and if so a person is
entitled to it
VIII. Circumstantial evidence is allowed if that evidence points to guilt
eliminated other reasonable hypotheses of innocence
a. You walk in your house and go to bed, come out the next morning with
snow on the ground. No direct evidence it snowed unless you actually see
it snow.
ii. Enforcing the Presumption of Innocence
I. Burden of production and persuasion is on the government before power can be
exercised with legitimacy
II. Owens v. State
a. Charges must be specific and flow from preexisting written command
i. Operating a vehicle
ii. While inebriated on a public highway
iii. How an appellate court reviews a case when arguing sufficiency of the evidence
I. S puts on its case first
II. D not required to put on a case at all
a. Burden lies with S
III. D has to make an oral motion to dismiss with bench trial or motion for directed
verdict if jury trial because S did not prove “x”
 a. When moving to dismiss after S rests, state that S had failed to prove X
element of X offense with searing specificity of each element you think S
has failed to make its proof
b. You know the offenses because of the charging document
IV. Once argument concluded, judge has decision to make after S responds
a. Could a rational juror conclude that S satisfied its burden of proof?
i. If yes, denies motion & sends to jury
ii. If no, then that particular offense is dismissed
V. Ct will ask D if he wants to put on a defense
a. D is not required to put on a defense
VI. Then D rests and renews the motion
a. In AR, if the original motion was stated with enough specificity then you
only need to state renewal, but you should repeat original info with
specificity so that on appeal there is no question of the sufficiency of the
renewal
VII. Following the disposition of the original motion, S can put on a rebuttal
case. If so, D needs to renew the motion one more time once S rests again.
II. Principles of Punishment
a. Model Penal Code §§ 1.02(1),(2)
i. The general purposes of the provisions governing the definition of offense are:
I. (a) to forbid and prevent conduct that unjustifiably and inexcusable inflicts or
threatens substantial harm to individual or public interests
II. (b) to subject to public control persons whose conduct indicates that they are
disposed to commit crimes
III. (c) to safeguard conduct that is without fault from condemnation as criminal
IV. (d) to give fair warning of the nature of the conduct declared to constitute an
offense
V. (e) to differentiate on reasonable grounds between serious and minor offenses
ii. The general purposes of the provisions on sentencing, applicable to all official actors in
the sentencing system, are:
I. (a) in decisions affecting the sentencing of individual offenders
a. To render sentences in all cases within a range of severity proportionate to
the gravity of offenses, the harms done to crime victims, and the
blameworthiness of offenders
b. When reasonable feasible, to achieve offender rehabilitation, general
deterrence, incapacitation of dangerous offenders, restoration of crime
victims and communities, and reintegrations of offenders into the law-
abiding community provided these goals are pursued within the
boundaries of proportionality in subsection (a)(i) and
c. To render sentences no more severe than necessary to achieve the
applicable purposes in subsections (a)(i) and (a)(iii)
II. (b) in matters affecting the administration of the sentencing system:
a. To preserve judicial discretion to individualize sentences within a
framework of law
b. To produce sentences that are uniform in their reasoned pursuit of the
purposes in subsection (a)
c. To eliminate inequities in sentencing across population groups
d. To encourage the use of intermediate sanctions
e. To ensure that adequate resources are available for carrying out sentences
imposed and rational priorities are established for the use of those
resources
 f. To ensure that all criminal sanctions are administered in a humane fashion
and that incarcerated offenders are provided reasonable benefits of
subsistence, personal safety, medical and mental health care, and
opportunities to rehabilitate themselves
g. To promote research on sentencing policy and practices, including
assessments of the effectiveness of criminal sanctions upon families and
communities and
h. To increase the transparency of the sentencing and corrections system, its
accountability to the public, and the legitimacy of its operations as
perceived by all affected communities.
b. Model Penal Code § 1.04; CLASS OF CRIMES; VIOLATIONS
i. (1)An offense defined by this Code or by any other statute of this State, for which a
sentence of [death or of] imprisonment is authorized, constitutes a crime. Crimes are
classified as felonies, misdemeanors or petty misdemeanors.
ii. (2) A crime is a felony if it is so designated in this Code or if persons convicted thereof
may be sentenced [to death or] to imprisonment for a term that, apart from an extended
term, is in excess of one year.
iii. (3) A crime is a misdemeanor if it is so designated in the Code or in a statute other than
this Code enacted subsequent thereto.
iv. (4) A crime is a petty misdemeanor if it is so designated in this Code or in a statute other
than this Code enacted subsequent thereto or if it is defined by a statute other than this
Code that now provides that person convicted thereof may be sentenced to imprisonment
for a term of which the maximum is less than one year.
v. (5) An offense defined by this Code or by any other statute of this State constitutes a
violation if it is so designated in this Code or in the law defining the offense or if no other
sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon
conviction or if it is defined by a statute other than this Code that now provides that the
offense shall not constitute a crime. A violation does not constitute a crime and
conviction of a violation shall not give rise to any disability or legal disadvantage based
on conviction of a criminal offense.
vi. (6) Any offense declared by law to constitute a crime, without specification of the grade
thereof or of the sentence authorized upon conviction, is a misdemeanor.
vii. (7) An offense defined by any statute of this State other than this Code shall be classified
as provided in this Section and the sentence that may be imposed upon conviction thereof
shall hereafter be governed by the Code.
c. Theories of Punishment
i. In General
ii. Utilitarian Justifications
iii. Retributive Justifications
d. Penal Theories in Action
i. The Queen v. Dudley and Stephens
ii. People v. Superior Court
iii. People v. Du
iv. US v. Gementera
e. Proportionality of Punishment
i. Coker v. Georgia
ii. Erwing v. California
III. Modern Role of Criminal Statutes
a. Model Penal Code § 1.02(3)
i. The provisions of the Code shall be construed according to the fair import of their terms
but when the language is susceptible of differing constructions it shall be interpreted to
further the general purposes stated in this Section and the special purposes of the
 particular provision involved. The discretionary powers conferred by the Code shall be
exercised in accordance with the criteria stated in the Code and, insofar as such criteria
are not decisive, to further the general purposes stated in this Section.
b. Model Penal Code § 2.01 REQUIREMENT OF VOLUNTARY ACT; OMISSION AS BASIS
OF LIABILITY; POSSESSION AS AN ACT
i. (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.
ii. (2) The following are not voluntary acts within the meaning of this Section:
I. (a) a reflex or convulsion
II. (b) a bodily movement during unconsciousness or sleep
III. (c) conduct during hypnosis or resulting from hypnotic suggestion
IV. (d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual
iii. (3) Liability for the commission of an offense may not be based on an omission
unaccompanied by the action unless
I. (a) the omission is expressly made sufficient by the law defining the offense or
II. (b) a duty to perform the omitted act is otherwise imposed by law
iv. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly
procured or received the thing possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his possession.
IV. Actus Reus
a. The actual act
b. Must be voluntary
c. Can be an omission, which there is a duty to act as required by law
i. If there is a duty, the law must explicitly explain the duty for which there is punishment
for an omission.
d. Doctrine of transferred intent
i. Can still be tried and charged
ii. Still criminally liable
iii. Mens rea still exists in the perpetrator ONLY in relation to the intended victim
e. General Intent
i. No particular mental state is set out in the definition of the crime
f. Two components of every crime
i. Actus reus: the physical act, which must be voluntary
ii. Mens rea: the mental state
iii. Both must be proved beyond a reasonable doubt by the State
V. Mens Rea
a. Actors state of mind regarding the social harm of the offense
i. Broadly
I. Guilty mind, vicious will, immorality of motive, morally culpable state of mind
ii. Narrowly
I. The mental state of D must have had with regard to the social harm elements set
out in the definition of the offense
b. Legal definition of an act
i. A willed movement or the omission of a possible and legally required performance
c. Requirement of a voluntary act – Model Penal Code 2.01
i. 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
I. 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. Bodily movement that otherwise is not a product of the effort or
determination of the actor – conscious or habitual
II. Involuntary acts cannot be the basis for criminal liability
ii. Automatism can be asserted as a defense
d. Legal duty to act?
i. The law can require for one to act
I. Situation when may be required to act
a. Statute
b. If in a certain status relationship to another
c. Assumed contractual duty to care for another
d. If voluntarily assumed care of another and secluded the helpless person to
prevent other from giving aid
e. When a person creates a risk of harm to another
II. Once medical treatment is no longer effective, there is no continuing duty to
provide it
a. A qualified medical provider determines on a case by case basis
e. Attendant Circumstances
i. Is a condition that must be present in conjunction with the prohibited conduct or result to
constitute a crime
I. Conduct: driving car
II. AC: in an intoxicated condition
III. In AR, actus reus can be actual act, something said, or withholding information.
f. Specific Intent v. General Intent
i. No universally agreed definition
ii. Usually say generally when offense is silent on specific intent
I. General Intent
a. Any morally blameworthy states of mind
i. Purposely
ii. Knowingly
iii. Recklessly
iv. Negligently
iii. If the statute does not define a particular mental state, then it is a general intent statute.
iv. Specific intent contain a special element greater than actus reus
I. Ex. Actor would commit some future act with present act
a. Possession with intent to sell
II. Requires proof of motive or conduct
III. Proof of awareness of attendant circumstance
g. Purposely
i. Conscious objective to do prohibited act or cause prohibited result
h. Knowingly
i. An awareness that the conduct is prohibited and that if one engages in that conduct the
prohibited result is a practical certainty
ii. Actual awareness of practical certainty of the result.
i. Recklessly
i. Consciously knowing that there is a substantial risk
ii. Awareness of that risk, that is probability less than substantial certainty
iii. Viewed from prospective of D
iv. Must be substantial and unjustifiable risk of which the person is aware
v. Ex. Surgeon performs operation with high risk
I. Substantial, but justifiable
j. Model Penal Code § 2.02 GENERAL REQUIREMENT OF CULPABILITY
i. (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is
not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently,
as the law may require; with respect to each material element of the offense.
ii. (2) Kinds of Culpability Defined.
I. (a) Purposely. A person acts purposely with respect to a material element of an
offense when:
i. If the element involves the nature of his conduct or a result thereof,
it is his conscious object to engage in conduct of that nature or to
cause such a result; and
ii. If the element involves the attendant circumstances, he is aware of
the existence of such circumstances or he believes or hopes that
they exist
b. (b) Knowingly. A person acts knowingly with respect to a material element
of an offense when:
i. If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that
such circumstances exist; and
ii. If the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result
c. (c) Recklessly. A person acts recklessly with respect to a material element
of an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.
d. (d) Negligently. A person acts negligently with respect to a material
element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a nature and degree that the actor’s
failure to perceive it, considering the nature and purpose of his conduct
and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.
II. (3) Culpability Required Unless Otherwise Provided. When the culpability
sufficient to establish a material element of an offense is not prescribed by law,
such element is established if a person acts purposely, knowingly or recklessly
with respect thereto.
III. (4) Prescribed Culpability Requirement Applies to All Material Elements. When
the law defining an offense prescribes the kind of culpability that is sufficient for
the commission of an offense, without distinguishing among the material
elements thereof, such provision shall apply to all the material elements of the
offense unless a contrary purpose plainly appears.
IV. (5) Substitutes for Negligence, Recklessness and Knowledge. When the law
provides that negligence suffices to establish an element of an offense, such
element is also established if a person acts purposely, knowingly or recklessly.
When recklessness suffices to establish to establish an element such element is
established if a person acts purposely or knowingly. When acting knowingly
suffices to establish an element, such element also is established if a person acts
purposely.
 V. (6) Requirement of Purpose Satisfied if Purpose is Conditional. When a particular
purpose is an element of an offense, the element is established although such
purpose is conditional, unless the condition negatives the harm or evil sought to
be prevented by the law defining the offense.
VI. (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When
knowledge of the existence of a particular fact is an element of an offense, such
knowledge is established if a person is aware a high probability of its existence,
unless he actually believes that it does not exist.
VII. (8) Requirement of Willfulness Satisfied by Acting Knowingly. A
requirement that an offense be committed willfully is satisfied if a person acts
knowingly with respect to the material elements of the offense, unless a purpose
to impose further requirements appears.
VIII. (9) Culpability as to Illegality of Conduct. Neither knowledge no
recklessness or negligence as to whether conduct constitutes an offense or as to
the existence, meaning or application of the law determining the elements of an
offense is an element of such offense, unless the definition of the offense or the
Code so provides.
IX. (10) Culpability as Determinant of Grade of Offense. When the grade or degree of
an offense depends on whether the offense is committed purposely, knowingly,
recklessly or negligently its grade or degree shall be the lowest for which the
determinative kind of culpability is established with respect to any material
element of the offense.
iii. Model Penal Code § 2.03(2)(a)
I. (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:
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
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.
iv. Model Penal Code § 1.04(5)
I. An offense defined by this Code or by any other statute of this State constitutes a
violation if it is so designated in this Code or in the law defining the offense or if
no other sentence than a fine, or fine and forfeiture or other civil penalty is
authorized upon conviction or if it is defined by a statute other than this Code that
now provides that the offense shall not constitute a crime. A violation does not
constitute a crime and conviction of a violation shall not give rise to any disability
or legal disadvantage based on conviction of a criminal offense.
VI. Causation
a. Actual Cause
i. Cause in fact, but-for cause, factual cause
I. Take away X event and then Y even never occurs
II. Said result would not have occurred “but for” D’s conduct
ii. State must prove that Ds act actually caused the prohibited outcome
iii. Actual cause by itself is not enough to establish criminal liability; requires proximate
cause as well
iv. Not sufficient to convict someone of a criminal offense because it can be too remote.
v.
 vi. Substantial Factor Test
I. Ds conduct is an actual cause of the prohibited result & was a substantial factor in
the result
II. Acts together then deemed actual cause
b. Proximate Cause
i. Is most closely related, temporally, to the act or omission and the prohibited result
ii. Necessary and sufficient
iii. If proximate cause is proved, then so is actual cause, but the converse is not true
iv. Established to prevent criminal liability from attaching when the result of Ds conduct is
viewed too remote or unnatural
v. Prohibited result is a direct and natural result of Ds action
c. Superseding and Intervening Cause
i. Sever the link between actual cause and proximate cause
ii. Turns on foreseeability
iii. Need not be the only cause to sever the link between actual cause and proximate cause
iv. 2 types of intervening causes in determining whether the link is severed
I. Responsive Intervening Cause
a. Will establish proximate cause
b. Responding to D’s action
c. Does not break causal chain unless response is abnormal and
unforeseeable
d. If established, then there is a superseding and intervening cause.
II. Coincidental Intervening Cause
a. Coincidental event that happens that could break the causal chain between
proximate cause and actual cause
b. Presumably unforeseeable and does break the causal chain unless the
coincidence is foreseeable
c. Becomes a superseding intervening cause if that coincidence is
foreseeable because then the link is severed and D’s conduct is rendered
not criminally liable
d. Apparent Safety Doctrine
i. P’s active force has come to rest in a position of safety
ii. Independent volition on P’s part to go from position of apparent safety to danger and
breaks the causal link
iii. Done knowingly, voluntarily, and intelligently
e. Model Penal Code 2.03 Causal Relationship
i. Not established when actual result is not within actor’s intention unless just different
people or property or intended harm would have been more serious or in same category
and not too remote from the intended result.
VII. Criminal Homicide
a. Every killing of every human being is a homicide but only some are criminal homicides
b. All homicides are specific intent crimes
c. Model Penal code § 210.0: DEFINTIONS
i. (1) “human being” means a person who has been born and is alive
ii. (2) “bodily injury” means physical pain, illness or any impairment of physical condition
iii. (3) “serious bodily injury” means bodily injury which creates a substantial risk of death
or which causes serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ;
iv. (4) “deadly weapon” means any firearm or other weapon, device, instrument, material or
substance, whether animate or inanimate, which in the manner it is used or is intended to
be used is known to be capable of producing death or serious bodily injury.
d. Model Penal Code § 210.1: CRIMINAL HOMICIDE
 i. (1) A person is guilty of a criminal homicide if he purposely, knowingly, recklessly or
negligently causes the death of another human being
ii. (2) Criminal Homicide is murder, manslaughter or negligent homicide.
e. Model Penal Code § 210.2: MURDER
i. (1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder
when
I. (a) it is committed purposely or knowingly; or
II. (b) it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and indifference are
presumed if the actor is engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to commit robbery,
rape or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnapping or felonious escape.
ii. (2) Murder is a felony of the first degree [but a person convicted of murder may be
sentenced to death, as provided in Section 210.6].
f. Model Penal Code § 210.3: MANSLAUGHTER
i. (1) Criminal homicide constitutes manslaughter when:
I. (a) it is committed recklessly; or
II. (b) a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a person in the actor’s situation
under the circumstances as he believes them to be.
ii. (2) Manslaughter is a felony of the second degree.
g. Model Penal Code § 210.4: NEGLIGENT HOMICIDE
i. (1) Criminal homicide constitutes negligent homicide when it is committed negligently.
ii. (2) Negligent homicide is felony of the third degree.
h. Felony Murder Rule
i. Are presumed when actor is engaged or is an accomplice of X acts
I. A person can be charged and convicted of murder without actually killing any one
if an accomplice
ii. AR has as well
I. With one or more persons
i. Murder
i. Purposely or knowingly (or recklessly when act resulting in homicide also has
circumstances showing extreme indifference towards the value of human life)
j. Manslaughter
i. Committed recklessly OR
ii. A homicide that would otherwise be murder where attendant circumstances influence of
extreme mental distress reasonably under a person’s circumstances
iii. Involves provocation (can be some lapse in time between provocation and killing)
iv. For provocation to be adequate under common law:
I. Must be calculated to inflame the passion of a reasonable person and tend to cause
that person to act from passion rather than reason
II. Lawful conduct is never provocation
v. Common law establishment of provocation that causes an extreme emotion or mental
disturbance
I. Extreme assault or battery
II. Mutual assault/combat
III. Defense of others
IV. Defendant’s illegal arrest
V. Discovery of spouse’s adultery
 vi. Words alone do not constitute adequate provocation under the common law. However, if
words indicate a present intent and ability to cause D bodily harm then can be.
I. Ex. Naked person with no gun threatening to shoot you is not adequate.
II. Model Penal Code changed this because MPC reflects human frailty
vii. Intentional homicide mitigating to manslaughter
I. Provocative event that results in actor felling rage or other emotion
II. Provocation must be so serious as to upset a reasonable person and they act on it
III. What is a reasonable person?
a. The more idiosyncratic attributes we give to a “reasonable person” then
the more distance between D and the actual reasonable person
viii. Mitigating manslaughter under Model Penal Code
I. Is Ds claim of extreme mental or emotional disturbance genuine or contrived?
(Subjective)
a. If contrived, then murder not manslaughter
b. If genuine, go to next question
II. Would a reasonable person, in D’s position under these circumstances as D
believed them, have acted as D acted?
k. Premeditation and Deliberation
i. Deliberation
I. Requires reflection and is qualitative
II. What act will cause
III. Substantive
IV. Undisturbed by heat of passion
ii. Premeditations
I. Quantitative
II. Precede the killing even for seconds
III. How long thinking
iii. Difficult to prove with direct evidence because both premeditation and deliberation deal
with Ds thought processes and is often proved by circumstantial evidence
l. Lesser Included offenses
i. Can be convicted of an included offense
ii. 14th Amendment requires that you cannot be convicted of a greater offense at trial
m. Voluntary manslaughter (according to common law in MD)
i. Sudden heat of passion
ii. Caused by adequate provocation
iii. Provoked party has no opportunity to calm down
n. Excuse and Justification
i. Both serve to mitigate criminal liability
ii. Justification
I. A society’s approval of the actor’s conduct.
II. Ex. Self defense & therefore, no conviction
iii. Excuse
I. When the defendant is a wrongdoer, but is less morally culpable under these
specific circumstances.
iv. Heat of Passion
I. Partial justification and partial excuse because provocateur is a wrongdoer and
provoked person is merely “righting the wrong” and also because is less morally
culpable under circumstances since provoked
o. Malice
i. Express malice is manifested when a person has a deliberate intention to take away the
life of a fellow creature.
 ii. Implied malice is manifested when there is no considerable provocation or when
circumstances attendant to the killing show abandoned and malignant heart
iii. Malice is indicative of a person’s behavior not a person’s character.
iv. Malice is also implied when the killing is proximately caused by an act, the natural
consequences of which, are dangerous to life, and the actor deliberately performs the act
with the knowledge that his conduct endangers the life of another and acts with conscious
disregard for human life.
v. Ex. Alabama Statute: “don’t give a damn attitude”
VIII. Felony Murder Rule
a. Model Penal Code § 210.2: MURDER
i. (1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder
when
I. (b) it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and indifference are
presumed if the actor is engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to commit robbery,
rape or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnapping or felonious escape.
b. To convict a person of felony murder, the state only need prove the elements of the underlying
felony.
c. SCOTUS has ratified the FMR within the US Const.
i. All states have a diluted version of FMR
ii. 3 states have abolished FMR altogether.
d. Purpose of FMR
i. Deter persons engaged in a felony from killing negligently or accidentally
e. CA Penal Code Section 189: First-Degree Felony Murder
i. “All murder [that] is committed in the perpetration of, or attempt to perpetrate, arson,
rape, robbery, burglary, mayhem, or [lewd acts with a minor], is murder of the first
degree.
ii. CA Penal Code Section 459: Burglary
I. “Every person who enters any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel,
railroad car, trailer coach, or vehicle, when the doors of such vehicles are locked,
with the intent to commit larceny or any felony is guilty of burglary.”
f. Second Degree Felony Murder
i. “A homicide that is a direct causal result of the commission of a felony inherently
dangerous to human life constitutes at least second-degree murder.”
ii. To determine whether a felony is inherently dangerous, the court looks at elements of the
underlying offense in the abstract, not to the particular facts of the case
I. Can this offense be committed in a way that does not pose an inherent danger to
human life?
a. If yes, not inherently dangerous
b. If no, inherently dangerous
II. Prior examples of inherently dangerous
a. Drive by Shooting
b. Poisoning with intent to injure (Poison in Gatorade)
c. Arson of MV
d. Grossly negligent discharge of a firearm
e. Manufacturer of Meth
f. Kidnapping
III. Examples of felonies that are not inherently dangerous
a. False imprisonment by violence
 b. Possession of a firearm by a convicted felon
c. Sawed off shotgun
d. Grand theft
e. Prisoner escape
f. Extorsion
g. Depraved Heart Murder v. Felony Murder
i. The difference between implied [depraved heart] malice and felony murder, is that under
the [former] theory, when the defendant kills a person while committing an act, which by
its nature, poses a high probability that the act will result in death, the trier of fact, may
infer the defendant killed with malice aforethought; whereas, under the felony-murder
theory, if the inherently dangerous act is a felony, the defendant is deemed to have killed
with malice aforethought as a matter of law.
h. Merger Rule
i. In states with Felony Murder Rule where the legislature has failed to specify the
underlying felonies, the merger rule applies.
ii. Where the legislature has specified the underlying felonies for FMR, the merger rule does
not exist.
iii. Was the underlying felony committed for the purpose of the killing?
I. If so, the offenses are merged.
II. The offense cannot be separated because both are part of the same act.
iv. People v. Smith (CA)
I. “a second-degree felony murder instruction may not properly be given when it is
based upon a felony that is an integral part of the homicide and that the evidence
produced by the prosecution shows to be an offense included in fact within the
offense charged.”
II. “the felony murder rule cannot apply to burglary-murder cases in which ‘the entry
would be non-felonious but for the intent to commit the assault, and the assault is
an integral part of the homicide and is included in fact in the offense charged.’”
v. People v. Chun
I. “if the elements of the crime have an assaultive aspect, the crime merges with the
underlying homicide even if the elements also include conduct that is not
assaultive.”
II. Is the underlying felony assaultive?
a. Felony that involves the threat of immediate, violent injury
b. Look at elements of offense not facts of the case
III. If so, then merger rule applies, and the government must prove stand-alone
murder
IV. Under Chun, both varieties of child abuse apply the merger doctrine
IX. Rape
a. MODEL PENAL CODE SECTION 213.1 RAPE AND RELATED OFFENSES
i. (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape
if:
I. (a) he compels her to submit by force or by threat of imminent death, serious
bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
II. (b) he has substantially impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs, intoxicants, or other
means for the purpose of preventing resistance; or
III. (c) the female is unconscious; or
IV. (d) the female is less than 10 years old.
V. Rape is a felony of the second degree unless (i) in the course thereof the actor
inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary
social companion of the actor upon the occasion of the crime and had not
 previously permitted him sexual liberties, in which cases the offense is a felony of
the first degree.
ii. (2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his
wife commits a felony of the third degree if:
I. (a) he compels her to submit by any threat that would prevent resistance by a
woman of ordinary resolution; or
II. (b) he knows that she suffers from a mental disease or defect which renders her
incapable of appraising the nature of her conduct; or
III. (c) he knows that she is unaware that a sexual act is being committed upon her or
that she submits because she mistakenly supposes that he is her husband.
b. Rape in MD
i. Force is an essential element
I. 1) the victim resisted and
II. 2) the resistance was overcome by force or threats to her safety
ii. Resistance and force that overcomes it OR no resistance due to reasonable threat to safety
c. MPC § 213.1 does not provide for marital rape or for rape other than male on female
i. Reform of rape law urges shift from mental state of victim to that of the perpetrator
d. NJ Sexual Assault
i. Any act of sexual penetration engaged in by the Defendant without the affirmative and
freely given permission of the victim to the specific act of penetration constitutes sexual
assault.
ii. Therefore, force in excess inherent in the act of sex is not required for penetration to be
unlawful
iii. Permission may be inferred and need not be explicit.
iv. Elements
I. 1) sexual penetration
II. 2) without the affirmative and freely given permission
III. If evidence to suggest that the defendant reasonably believed permission was
given, the State must prove either
a. A) the defendant did not actually believe that affirmative permission had
been freely-given
b. Or that such belief was unreasonable under all of the circumstances
e. Affirmative consent
i. Affirmative conscious and voluntary agreement to engage in sexual activity.
ii. It is the responsibility of each person involved in the sexual activity to ensure that he or
she has the affirmative consent of the other or others to engage in the sexual activity.
Lack of protest or resistance does not mean consent nor does silence mean consent.
iii. Affirmative consent must be ongoing through a sexual activity and can be revoked at any
time.
iv. The existence of a dating relationship between the persons involved or the fact of past
sexual relations between them should never by itself be assumed to be an indicator of
consent.
f. Marital Immunity
i. Forcible sexual intercourse between married couples did not constitute common law rape,
although it could constitute a different and lesser offense, such as battery.
ii. By 2001, in the US, 24 states and DC had abolished marital immunity for all sexual
offenses.
iii. A majority of states still retain some form of the common law regime: They criminalize a
narrower range of offenses if committed within marriage, subject the marital rape they do
recognize to less serious sanctions, or create special procedural hurdles for marital rape
prosecutions.
g. Mistake of fact can negate a general intent offense
X. Defenses
a. MODEL PENAL CODE § 3.01 JUSTIFICATION AS AN AFFIRMATIVE DEFENSE; CIVIL
REMEDIES UNAFFECTED
i. (1) in any prosecution based on conduct that is justifiable under this Article, justification
is an affirmative defense.
ii. (2) the fact that conduct is justifiable under this Article does not abolish or impair any
remedy for such conduct that is available in any civil action
b. MODEL PENAL CODE § 3.02 JUSTIFICATION GENERALLY: CHOICE OF EVILS
i. (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to
another is justifiable, provided that:
I. (a) the harm or evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged; and
II. (b) neither the Code nor any other law defining the offense provides exceptions or
defenses dealing with the specific situation involved; and
III. (c) the legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
ii. (2) When the actor was reckless or negligent in bring about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the justification
afforded by this Section is unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be, suffices to establish culpability.
c. MODEL PENAL CODE § 2.08 INTOXICATION
i. (1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a
defense unless it negatives an element of the offense
ii. (2) When recklessness establishes an element of the offense, if the actor, due to self-
induced intoxication, is unaware of a risk of which he would have been aware if he had
he been sober, such unawareness is immaterial.
iii. (3) Intoxication does not, in itself, constitute mental disease within the meaning of
Section 4.01.
iv. (4) Intoxication that (a) is not self induced or (b) is pathological is an affirmative defense
if by reason of such intoxication the actor at the time of his conduct lacks substantial
capacity to appreciate its criminality or to conform his conduct to the requirements of the
law.
v. (5) Definitions. In this Section unless a different meaning plainly appear is required:
I. (a) “intoxication” means a disturbance of mental or physical capacities resulting
from the introduction of substances into the body;
II. (b) “self-induced intoxication” means intoxication caused by substances which
the actor knowingly introduces into his body, the tendency of which to cause
intoxication he knows or ought to know, unless he introduces them pursuant to
medical advice or under such circumstances as would afford a defense to a charge
of crime;
III. (c) “pathological intoxication” means intoxication grossly excessive, given the
amount of the intoxicant, to which the actor does not know he is susceptible.
d. Excuse and Justification
i. Both serve to mitigate criminal liability
ii. Justification
I. A society’s approval of the actor’s conduct.
II. Ex. Self defense & therefore, no conviction
iii. Excuse
I. When the defendant is a wrongdoer (commits a social harm) but is less morally
culpable under these specific circumstances.
e. Self Defense Doctrine
i. MODEL PENAL CODE § 3.04 USE OF FORCE IN SELF PROTECTION
I. (1) Use of Force Justifiable for Protection of the Person. Subject to the provisions
of this Section and of Section 3.09, the use of force upon or toward 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 another person on the present occasion.
II. (2) Limitations on Justifying Necessity for Use of Force.
a. (a) The use of force is not justifiable under this Section:
i. (i) to resist an arrest that the actor knows is being made by a peace
officer, although the arrest is unlawful; or
ii. (ii) to resist force used by the occupier or possessor of property or
by another person on his behalf, where the actor knows that the
person using the force is doing so under a claim of right to protect
the property, except that this limitation shall not apply if:
1. (1) the actor is a public officer acting in the performance of
his duties or a person lawfully assisting him therein or a
person making or assisting in a lawful arrest; or
2. (2) the actor has been unlawfully dispossessed of the
property and is making a re-entry or recaption justified by
Section 3.06; or
3. (3) the actor believes that such force is necessary to protect
himself against death or serious bodily harm
b. (b) the use of deadly force is not justifiable under this Section unless the
actor believes that such force is necessary to protect himself against death,
serious bodily harm, kidnapping, or sexual intercourse compelled by force
or threat; nor is it justifiable if:
i. (i) the actor, with the purpose of causing death or serious bodily
injury, provoked the use of force against himself in the same
encounter; or
ii. (ii) the actor knows that he can avoid the necessity of using such
force with complete safety by retreating or by surrendering
possession of a thing to a person asserting a claim of right thereto
or by complying with a demand that he abstain from any action
that he has no duty to take, except that:
1. (1) the actor is not obliged to retreat from his dwelling or
place of work, unless he was the initial aggressor or is
assailed in his place of work by another person whose place
of work the actor knows it to be; and
2. (2) a public officer justified in using force in the
performance of his duties or a person justified in using
force in his assistance or a person justified in using force in
making an arrest or preventing an escape is not obliged to
desist from efforts to perform such duty, effect such arrest
or prevent such escape because of resistance or threatened
resistance by or on behalf of the person against whom such
action is directed.
c. (c) Except as required by paragraphs (a) and (b) of this Subsection, a
person employing protective force may estimate the necessity thereof
under the circumstances as he believes them to be when the force is used,
without retreating, surrendering possession, doing any other act which he
has no legal duty to or abstaining from any lawful action.
III. (3) Use of Confinement as Protective Force. The justification afforded by this
Section extends to the use of confinement as protective force only if the actor
 takes all reasonable measures to terminate the confinement as soon as he knows
that he safely can, unless the person confined has been arrested on a charge of
crime.
ii. Necessity at the core
I. When does Necessity arise under the common law?
a. For there to be a necessity there must be a threat, actual or apparent, of the
use of deadly force against the defender. The threat must have been
unlawful and immediate. The defender must have believed that he was in
imminent peril of death or serious bodily harm, and the defender must
have believed that his response was necessary to save himself from that
threat. His beliefs must have been genuine and objectively reasonable in
light of the surrounding circumstances.
iii. The right to use self-defense arises only when the necessity begins and ends when the
necessity ends.
iv. Self-Defense not given to aggressor
I. An affirmative unlawful act reasonably calculated to produce an affray
foreboding injuries or fatal consequences is an aggressive trait, unless renounced
nullifies the right of homicidal self-defense.
II. Self defense may not be claimed by one who deliberately places himself in a
position where he has reason to believe his presence would provoke trouble.
III. Only in the event that the aggressor communicates to his adversary his intent to
withdraw and in good faith attempts to withdraw, is he restored of his right to self
defense
a. Communication of the withdrawal need not be oral, can be nonverbal
commitment to withdraw
IV. Ex. Sleeping with someone’s wife does not make one an aggressor
v. Retreat to the wall
I. Forbade use of deadly force by one whom an avenue for safe retreat was open.
vi. Common Law Retreat
I. If one can safely retreat, one must. If one cannot safely retreat, then one retains
self-defense. If one can safely retreat and does not, then no self-defense.
a. Cain says usually can’t retreat when gun pointed at you.
II. Under Common Law, deadly force cannot be used in the defense of property.
vii. Castle Doctrine
I. One who through no fault of his own is attacked in his home (or work) is under no
duty to retreat.
II. (Min.) Duty to retreat in one’s own home or work if retreat can be do so safely
III. The castle doctrine can be invoked only by one who is without fault in bringing
on the conflict.
viii. Self-Defense is a justification and not an excuse
I. The defender believed it was necessary to kill the victim in order to save herself
from death or great bodily harm
II. The defender’s belief was reasonable
f. Necessity
i. Common Law Necessity
I. For there to be a necessity there must be a threat, actual or apparent, of the use of
deadly force against the defender. The threat must have been unlawful and
immediate. The defender must have believed that he was in imminent peril of
death or serious bodily harm, and the defender must have believed that his
response was necessary to save himself from that threat. His beliefs must have
been genuine and objectively reasonable in light of the surrounding
circumstances.
 ii. Model Penal Code Necessity
I. Is a justification that one who violates the law by virtue of necessity ahs not
engaged in conduct that is a social harm.
II. 3.02(1) conduct that the actor believes to be necessary to avoid harm or evil to
himself or to another is justifiable, provided that:
a. (a) the harm or evil sought to be avoided by such conduct is greater than
that sought to be prevented by the law defining the offense charged; and
b. (b) neither the Code nor other law defining the offense provides
exceptions or defenses dealing with the specific situation involved; and
c. (c) a legislative purpose to exclude the justification claimed does not
otherwise plainly appear
III. 3.02(2) – when the actor was reckless or negligent in bringing about the situation
requiring a choice of harms or evils in appraising the necessity for his conduct,
the justification afforded by this section is unavailable in a prosecution for any
offense for which recklessness or negligence as the case may be suffices to
establish culpability
a. Mistakenly believe that you have to break the law to protect people
iii. Difference between CL and MPC Necessity
I. MPC necessity does not require that the necessity be brought about because of an
immediate and dire need
II. MPC view is from the position of the defender
III. The harm thought to be thwarted by the MPC Necessity is broader than CL
iv. Limitation on the defense of Necessity
I. Actor must actually believe that his conduct is necessary to avoid an evil
II. Necessity must arise from an attempt by the actor to avoid an evil or harm that is
greater than the evil or harm sought to be avoided by the law defining the offense
charged
a. An equal or lesser harm will not suffice.
III. The balancing of evil is not committed to the private judgment of the actor, but
rather, is an issue for determination at trial.
IV. The general choice of evils defense cannot succeed if the issue of competing
values has been previously foreclosed by a deliberate legislative choice, as when
some provision of the law deals explicitly with the specific situation that presents
the choice of evils or legislative purpose to exclude the claimed justification
otherwise appears
g. Duress
i. MODEL PENAL CODE § 2.09 DURESS
I. (1) It is an affirmative defense that the actor engaged in the conduct charged to
constitute an offense because he was coerced to do so by the use of, or a threat to
use, unlawful force against his person or the person of another, that a person of
reasonable firmness in his situation would have been unable to resist.
II. (2) The defense provided by this Section 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 establish culpability for the
offense charged.
III. (3) it is not a defense that a woman acted on the command of her husband, unless
she acted under such coercion as would establish a defense under this Section.
[The presumption that a woman acting in the presence of her husband is coerced
is abolished]
IV. (4) When the conduct of the actor would otherwise be justifiable under Section
3.02, this Section does not preclude such defense.
 ii. Duress is an affirmative defense under MPC
I. The defender is coerced to commit the offence by use of, or threat to use,
unlawful force against him or another person that a person of reasonable firmness
would have been unable to resist.
II. Duress unavailable for negligently placing oneself in the situation
III. Duress is a species of provocation
IV. MPC authorizes the duress defense in response to a prior threat, not just an
immediate threat so long as the responder is reasonably firm in acting in the way
that he did
iii. Duress is an excuse
I. One is deemed blameworthy but less so than would be otherwise because the
requisite mens rea is still present, though the motive is different.
iv. Common Law Elements of Duress
I. (1) an immediate threat of death or serious bodily injury
II. (2) a well-grounded fear that the threat will be carried out,
III. (3) no reasonable opportunity to escape the threatened harm
h. Insanity
i. MODEL PENAL CODE § 4.01 MENTAL DISEASE OR DEFECT EXCLUDING
RESPONSIBILITY
I. (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 of his conduct or to conform his conduct to the
requirements of law.
II. (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.
ii. Cain says an excuse defense that hardly ever works
iii. M’Naghten Rule in England 1843
I. To establish a defense on the ground of insanity it must be clearly proved that, at
the time of committing the act, the party accused was laboring under such a defect
of reason, form disease of the mind, as not to know the nature and quality of the
act he was doing, or if he did know it, that he did not know that what he was
doing was wrong.
II. 1) Did D know the nature and quality of the act?
a. If yes, got to Q2
b. If no, acquittal
III. 2) Did D know the act was wrong?
a. If yes, to jury
b. If no, acquittal
iv. Irresistible Control Test
I. Courts inquire into both the cognitive and volitional components of the
defendant’s behavior.
v. Product Test
I. “An accused is not criminally responsible if his unlawful act was the product of
mental disease or mental defect.”
vi. MPC 4.01
I. (1) when as a result of mental disease or defect, the defendant lacked substantial
capacity to appreciate the criminality of his conduct OR
II. (2) when, as a result of mental disease or defect, the defendant lacked substantial
capacity to conform his conduct to he requirements of the law.
III. Process for 4.01
a. (1) Does D have a mental disease or does D have a mental defect?
i. If no to both then can’t use 4.01
 ii. If Yes, got to Q2
b. (2) Did D have the substantial capacity to appreciate the criminality of his
conduct?
c. (3) Did D have the substantial capacity to conform his conduct to the
requirement of the law?
IV. Ex. Young child did not understand what death means
XI. Inchoate Offenses
a. MODEL PENAL CODE 2.06 LIABILITY FOR CONDUCT OF ANOTHER; COMPLICITY
i. (1) A person is guilty of an offense if it is committed by his own conduct or by the
conduct of another person for which he is legally accountable, or both.
ii. (2) A person is legally accountable for the conduct of another person when:
I. (a) acting with the kind of culpability that is sufficient for the commission of the
offense, he causes an innocent or irresponsible person to engage in such conduct;
or
II. (b) he is made accountable for the conduct of such other person by the Code or by
the law defining the offense; or
III. (c) he is an accomplice of such other person in the commission of the offense.
iii. (3) A person is an accomplice of another person in the commission of an offense if:
I. (a) with the purpose of promoting or facilitating the commission of the offense, he
a. (i) solicits such other person to commit it, or
b. (ii) aids or agrees or attempts to aid such other person in planning or
committing it, or
c. (iii) having a legal duty to prevent the commission of the offense, fails to
make proper effort so to do; or
II. (b) his conduct is expressly declared by law to establish his complicity.
iv. (4) When causing a particular result is an element of an offense, an accomplice in the
conduct causing such result is an accomplice in the commission of that offense if he acts
with the kind of culpability, if any, with respect to that result that is sufficient for the
commission of the offense.
v. (5) A person who is legally incapable of committing a particular offense himself may be
guilty thereof if it is committed by the conduct of another person for which he is legally
accountable, unless such liability is inconsistent with the purpose of the provision
establishing his incapacity.
vi. (6) Unless otherwise provided by the Code or by the law defining the offense, a person is
not an accomplice in an offense committed by another person if:
I. (a) he is a victim of that offense; or
II. (b) the offense is so defined that his conduct is inevitably incident to its
commission; or
III. (c) he terminates his complicity prior to the commission of the offense and
a. (i) wholly deprives it of effectiveness in the commission of the offense; or
b. (ii) gives timely warning to the law enforcement authorities or otherwise
makes proper effort to prevent the commission of the offense.
vii. (7) An accomplice may be convicted on proof of the commission of the offense and of his
complicity therein, though the person claimed to have committed the offense has not been
prosecuted or convicted or has been convicted of a different offense or degree of offense
or has an immunity to prosecution or conviction or has been acquitted.
b. MODEL PENAL CODE § 5.01 CRIMINAL ATTEMPT
i. (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting
with the kind of culpability otherwise required for commission of the crime, he:
I. (a) purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be; or
 II. (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 belief that it will cause such result
without further conduct on his part; or
III. (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.
ii. (2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall
not be held to constitute a substantial step under Subsection (1)(c) of this section unless it
is strongly corroborative of the actor’s criminal purpose. Without negativing the
sufficiency of other conduct, the following if corroborative of the actor’s criminal
purpose shall not be held insufficient as a matter of law:
I. (a) lying in wait, searching for or following the contemplated victim of the crime;
II. (b) enticing or seeking to entice the contemplated victim of the crime to go to the
place contemplated for its commission;
III. (c) reconnoitering the place contemplated for the commission of the crime;
IV. (d) unlawful entry of a structure, vehicle, or enclosure in which it is contemplated
that the crime will be committed;
V. (e) possession of materials to be employed in the commission of the crime, that
are specially designed for such unlawful use or which can serve no lawful purpose
of the actor under the circumstances;
VI. (f) possession, collection, or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its commission,
where such possession, collection, or fabrication serves no lawful purpose of the
actor under the circumstances
VII. (g) soliciting an innocent agent to engage in conduct constituting an
element of the crime.
iii. (3) Conduct Designed to Aid Another in the Commission of a Crime. A person who
engages in conduct designed to aid another to commit a crime that would establish his
complicity under Section 2.06 if the crime were committed by such other person, is guilty
of an attempt to commit the crime, although the crime is not committed or attempted by
such other person.
iv. (4) Renunciation of Criminal Purpose. When the actor’s conduct would otherwise
constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative
defense that he abandoned his effort to commit the crime or otherwise prevented its
commission, under circumstances manifesting a complete and voluntary renunciation of
his criminal purpose. The establishment of such defense does not, however, affect the
liability of an accomplice who did not joint in such abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent
at the inception of the actor’s course of conduct, that increase the probability of detection
or apprehension or which make more difficult the accomplishment of the criminal
purpose. Renunciation is not complete if it is motivated by a decision to postpone the
criminal conduct until a more advantageous time or to transfer the criminal effort to
another but similar objective or victim.

c. MODEL PENAL CODE § 211.1 ASSAULT

i. (1) Simple Assault. A person is guilty of assault if he:
I. (a) attempts to cause or purposely, knowingly, or recklessly causes bodily injury
to another; or
II. (b) negligently causes bodily injury to another with a deadly weapon; or
III. (c) attempts by physical menace to put another in fear of imminent serious bodily
injury
 Serious assault is a misdemeanor unless committed in a fight or scuffle entered into
by mutual consent, in which case it is a petty misdemeanor.
ii. (2) Aggravated Assault. A person is guilty of aggravated assault if he:
I. (a) attempts to cause serious bodily injury to another, or causes such injury
purposely, knowingly, or recklessly under circumstances manifesting extreme
indifference to the value of human life; or
II. (b) attempts to cause or purposely or knowingly causes bodily injury to another
with a deadly weapon.
Aggravated assault under paragraph (a) is a felony of the second degree aggravated
assault under paragraph (b) is a felony of the third degree.

d. MODEL PENAL CODE § 211.2 RECKLESSLY ENDANGERING ANOTHER PERSON

i. A person commits a misdemeanor if he recklessly engages in conduct which places or
may place another person in danger of death or serious bodily injury. Recklessness and
danger shall be presumed where a person knowingly points a firearm at or in the direction
of another, whether or not the actor believed the firearm to be loaded.
e. Principal in the First Degree – is one who actually commits a crime either by his own hand or
by an inanimate agency or by an innocent human agent.
f. Principal in the Second Degree – is one who is guilty of felony by reason of having aided,
counseled, commanded or encouraged the commission thereof in his presence either actual or
constructive.
g. Accessory Before the Fact – is one who is guilty of felony by reason of having aided, counseled,
commanded or encouraged the commission thereof, without having been present either actually
or constructively at the moment of perpetration.
h. Accessory after the Fact – is one who, with knowledge of the other’s guilt renders assistance to a
felon in the effort to hind his detection, arrest, trial, or punishment.
i. At the common law the principal in the second degree may be tried and convicted prior to the
trial of the principal in the first degree, or even after the latter has been tried and acquitted. A
principal in the second degree may be convicted of a higher crime or a lower crime that a
principal in the first degree.
j. At common law, accessories, cannot be tried without his consent before the principal and an
accessory cannot be convicted of a higher crime than his principal.
k. Inchoate Offenses allow punishment of an actor even though he has not consummated the crime
that is the object of his efforts to attempt disruption to the social order.
l. Attempt, conspiracy, and solicitation are defined broadly to encompass acts leading to the
commission of any completed crime
m. Generally, a defendant cannot be criminally liable at common law for attempted reckless
homicide.
n. Two types of Inchoate Offenses
i. Complete
I. Actor does every step planned but is unsuccessful in producing the intended result
ii. Incomplete
I. The actor does some of the acts that she set out to do but then desists or is
prevented from continuing by an extraneous factor
o. How to Analyze a MPC 5.01 Problem
i. To analyze an attempt issue under subsection (1), it is necessary to ask and answer one or
two questions.
I. First, does the case involve a complete or incomplete attempt?
II. Second, if the case involves a complete attempt, is the target offense a “result”
crime (i.e. murder) or a “conduct” crime (i.e. driving an automobile under the
influence of alcohol?
 ii. Subsections 1(a) and 1(b) pertain to completed attempts. Specifically, subsection (1)(a)
should be considered when the target offense of the completed attempt involves conduct.
Subsection (1)(b) should be considered when the target offense of the completed attempt
involves result.
iii. If the prosecution involves an incomplete attempt, subsection 1(c) is used. However, this
subsection must be read in conjunction with subsection (2), which elaborates on the
meaning of substantial step.
p. Physical Proximity Doctrine
i. The overt act required for an attempt must be proximate or must amount to the
commencement of the consummation.
q. Dangerous Proximity Doctrine
i. A test given impetus by Mr. Justice Holmes whereby the greater the gravity and
probability of the offense, and the nearer the act to the crime, the stronger is the case for
calling the act an attempt.
r. Indispensable Element Test
i. A variation of the proximity tests which emphasizes any indispensable aspect of the
criminal endeavor over which the actor has not yet acquired control.
s. Probably Desistance Test
i. The conduct constitutes an attempt if, in the ordinary and natural course of events,
without interruption from an outside source, it will result in the crime intended.
t. Res Ipsa Loquitur or Unequivocally Test
i. An attempt is committed when the actor’s conduct manifests an intent to commit the
crime
u. State v. Reeves
i. When an actor possess material to be used in the commission of a crime at or near the
scene of the crime and where the possession of the materials can serve no lawful purpose
of the actor under the circumstances, the jury is entitled but not required, to find that the
actor has taken a “substantial step” toward the commission of the crime if such action is
strongly corroborative of the actor’s overall criminal purpose
ii. CL defense of criminal attempt prior to 1989
I. 1) intent
II. 2) overt act
III. 3) failure to consummate
v. Aider & Abettor
i. The Defendant must associate with offense, participate in it as something he wishes to
bring about, that he seeks by his action to make it succeed
w. Lookout
i. By prearrangement, keeping watch to avoid interception or to provide warning during the
perpetration of the crimes and thereby participating in the offenses charged
x. Accomplice Liability under the Common Law
i. Actus Reus
I. Four Forms
a. Soliciting
b. Active Assistance of offender
c. Encouragement of offender
d. Failing to prevent commission of offender where duty to do so
ii. Mens Rea
I. Intending to promote or facilitate the commission of the crime
II. Intend to provide aid to primary party and intend that the aid will aid in
committing the offense
y. Legally Accountable to another when
 i. With intent to promote or facilitate the commission of the offense, the person aids or
abbets the other in planning or committing the offense.
z. Criminal Intent may be inferred from the defendant’s knowledge of the unlawful use made of
product he supplies
i. Inferred from knowledge, when purveyor of illegal goods for illegal use has an acquired
stake in the venture
ii. When no legitimate use for the goods or services exist
iii. When volume of business with buyer is grossly disproportionate to any legitimate
demand, or when sales for illegal use account for a high proportion of seller’s total
business.
aa. Conspiracy is a type of accomplice liability
i. Mutual understanding between accomplices to accomplish a criminal act
XII. Accomplice Liability: Attendant Circumstances
a. Actor must have a purpose with respect to the proscribed conduct or result with his attitude
towards circumstances to be left to resolution of the courts
b. Natural and Probable Consequence / Foreseeable Consequence
i. An accessory is liable for any criminal act that in the ordinary course of things was the
natural or probable consequence of the crime that he advised or commanded, although
such consequence may not have been intended by him.
ii. First, did the primary party commit the target offense? Or at least an inchoate version of
the target offense?
iii. Second, was the secondary party an accomplice in the commission of the target offense?
iv. Third, did the primary party commit another crime or crimes beyond the target offense?
v. Fourth, were the latter crime or crimes “although not necessarily contemplated at the
outset, reasonably foreseeable consequences of the original criminal acts encouraged or
facilitated by the aider and abettor?”
c. Primary Crime Liability
i. Established by proof actor intended to promote or facilitate that crime
d. Secondary Crime Liability
i. The actor intended to promote the primary crime
ii. That the commission of the secondary crime was a foreseeable consequence of the actor’s
participation in the primary crime
e. MPC does not follow the natural and foreseeable consequence doctrine because of requisite
mens rea
f. Encouragement
i. Mere presence or even prior knowledge does not make one an accomplice to a crime
absent evidence showing that the defendant advised, instigated, encouraged, or assisted in
the perpetration of the crime.