The common law versus statutes Common Law is judge-made law – the basis of what we learn.

At common law, there were eight felonies. Now, virtually anything is a crime. Almost all states have abolished common law offenses. The Model Penal Code says that common law crimes are out the window. That doesn‘t mean that the common law is irrelevant. Common law crimes: Arson is defined as the intentional or reckless burning of the dwelling house of another. Burglary is defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. Murder is the killing of a human being by another human being with malice aforethought. At common law: Intent = purposefully or knowingly Pretty much all criminal law is now statutory. The common law has been grafted onto the statutes. What is a crime? Say some that what makes a crime different from a civil matter is the condemnation of the community, which is more important than the punishment. You can have a heavier punishment for a tort than for a crime, so it‘s not the punishment that really distinguishes criminal from civil. It‘s the community‘s condemnation of you that makes the difference—you‘re been found guilty of a crime. Will this law be effective (except by coincidence)? (1) You must know of the law‘s existence. (2) You need to ―know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance‖. You have to know how the law is going to apply to you. (3) You must be able to comply with the law. (4) You have to be willing to obey the law. This doesn‘t mean you have to like the law. Jury nullification The jury is totally secret. It doesn‘t have to explain itself. An acquittal from a jury is absolutely, positively final. Therefore, the jury can always acquit the defendant for any reason without being subject to sanction or appeal. Should juries have this power? Advocates say that jury nullification protects against convictions that are legal but not moral. Critics say that juries ought not to use nullification, because in practice it has had more negative effects than positive effects and because it results in the jury breaking their oath. The prosecution could try to get a juror discharged if there‘s evidence they will try to nullify. The court must give the juror the benefit of the doubt because it mustn‘t intrude upon the deliberative process. State v. Ragland – Must a jury be informed of its nullification power in order for a verdict it returns to be valid? There is no rule, which is why the court must make its decision on the basis of policy. Theories of punishment Utilitarianism and retribution are the most important tools we will use to study the criminal justice system. We have a duty to be able to explain why we are punishing people. There are two questions involved in how we distribute justice: (1) Whom do we punish? (2) How much punishment is appropriate? How do we distribute justice on a case-by-case basis? Utilitarianism Utilitarianism is forward-looking and tries to deter future bad conduct while increasing happiness and reducing pain. Utilitarians believe that both crimeand punishment are evils to be avoided. A utilitarian doesn’t like punishment. Human beings must be characterized by seeking pleasure and avoiding pain. We must be able to do the calculations; we must be rational. Forms of utilitarianism: (1) General deterrence – when you punish one person for a crime in order to send a message to society. (2) Specific deterrence – when you deter person X by punishing person X: (a) By incapacitation – you keep the person off the streets or (b) by intimidation – you make the person scared to do it again because they remember how unpleasant the experience was being punished the first time. (3) Rehabilitation – when you use the penal system to change the person such that they won‘t want to do bad acts in the future; you diagnose the problem and then solve it. Act-utilitarian – What would be the right thing to do in this particular case? Rule-utilitarian – What would be the better outcome if we announced this to the entire world? What would be the utilitarian effect? Retributivism ―The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing.‖ You can‘t be angry at someone unless you believe they have the capacity to choose to either do right or wrong. Retributivists focus on people having free choice or free will. The retributivist says that it is society‘s duty to punish and that this duty is independent of the consequences or costs or benefits.

Forms of Retributivism: (1) Negative retribution (utilitarianism*) – utilitarians, except punishing an innocent person is never justified. (2) Positive retribution – pure retributivism: you must punish guilty people, and you must never punish an innocent person. (3) Assultive – anger and hatred are morally right when directed at criminals. This is kind of a disguised utilitarianism: if people hate a criminal, they will institution private justice. So with the criminal justice system, we prevent vigilantism. This views a criminal as a worthless human being who deserves what they get. (4) Protective – Morris, and the classic modern retributive theory. The importance of the theory is that it views the criminal as having the right to be punished. (5) Victim vindication – we vindicate the victim‘s moral rights by punishing the perpetrator. Differences between the theories Utilitarians don‘t see punishment as inherently good; retributivists view punishment as inherently good and justifiable because there is a right and a duty to punish even if it doesn‘t do any future good. Utilitarians sound like economists trying to come up with an empirical justification for punishment and talk about profit. Retributivists think as moralists do and talk about just deserts. Retributivism makes us look to our moral roots. Actually, some forms of retributivism turn out to be forms of utilitarianism. It is plausible to argue as a utilitarian, given a particular situation, that punishing an innocent person would be the right thing to do. Is this enough to abandon utilitarianism? Could a retributivist punish an innocent person? Categorically: no. You may only punish a person who is guilty. Most utilitarians are unhappy with a three strikes law. They might oppose it from an efficiency standpoint. They might also oppose it from the point of view that punishment is a social cost. The Queen v. Dudley and Stephens – We will use Dudley and Stephens as an object lesson for the purpose of general deterrence. Even if Dudley and Stephens aren‘t deterrable in their particular case, the utilitarian must still find they are a useful example to others. This case would send a message to be certain you are prepared when you go out on a boat because you‘re going to be held liable for whatever goes on out there. People v. Superior Court (Du) – The probation officer said Mrs. Du was unlikely to commit another crime but recommend she be sentenced to prison. How much punishment is it just for Du to receive? A just punishment should: 1) protect society, 2) punish the defendant for wrongdoing, 3) encourage the defendant to be good in the future, 4) deter other crimes, 5) incapacitate the defendant, 6) make restitution for the victim, and 7) be comparable to punishments for similar crimes. A retributivist would say two criminals should get the same punishment for the same crime. Retributivists say you must look at the actor as well as the act; you must look at personal blameworthiness as well as the social harm caused. One controversy is whether a person‘s personal character matters or should be considered. United States v. Jackson – What punishment should Jackson receive? The statute does not state a maximum penalty, but it does forbid release on parole. Easterbrook says that the sentence imposed by the trial court is just on the basis of general deterrence and incapacitation. Posner thinks there‘s no chance under the current law to create general deterrence, therefore, he focuses on specific deterrence. He says if you keep the guy in jail for 20 more years, he probably won‘t commit any more crimes when released. The principle of legality The principle of legality is ―no crime without preexisting law‖. This trumps any other rules if there is a conflict. Courts don‘t create crimes. Statutes must be written clearly, and interpreted to the benefit of the accused. If you have to rely on a prosecutor or judge to interpret criminal statutes, you give them enormous power. The Due Process Clause says that potential criminals must have ―fair warning‖ of what is against the law. Commonwealth v. Mochan – The defendant‘s conduct was not forbidden by any particular statute, but a general provision in the Pennsylvania Penal Code ―grandfathered‖ in common law crimes. The defendant was convicted and appealed on the basis that his conduct did not constitute a common law crime. The court finds that any act which ―outrages decency and is injurious to public morals‖ is a misdemeanor under common law. Keeler v. Superior Court – The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute. Statutes are to be interpreted in the manner most favorable to the defendant. Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto legislation. The protection of due process is the judicial analogue of the prohibition on ex post facto laws. It is not the role of the court to make crimes, rather, it is the responsibility of the legislature. In Re Banks – In order to be constitutional, a statute must clearly and ―with a reasonable degree of certainty‖ tell persons who are subject to it what conduct is forbidden. Banks claims that the ―Peeping Tom‖ statute is overly broad, and thus it is unconstitutional. He says that some of the conduct prohibited is entirely innocent. The burden is upon the defendant to prove that a statute is invalid. The court says that statutes must be strictly construed. This is equivalent to the doctrine of lenity. The doctrine of lenity says if there are two ways to interpret a statute where one way would favor the State and one way would favor the accused, the court must side with the accused. It only applies when you‘re right on the razor‘s edge. In other words, we give the benefit of the doubt to the defendant.

protection against overzealous police force. The costs to an individual of conviction are so high that they should not be convicted when there is reasonable doubt of their guilt. the presumption of innocence is gone. ―How the heck did the jury reach that verdict?‖ The Winship doctrine Winship tells us that the Constitution requires every prosecutor to persuade the factfinder beyond a reasonable doubt of every fact (element) necessary to constitute the crime charged. We put the right to a jury trial in the Constitution to prevent judges from oppressing the people. it‘s the burden of thedefendant to show evidence of. Actus reus The actus reus is the physical component of the crime. It has less to do with this particular criminal trial. this is the way we should organize our answers: (1) Voluntary Act (or omission). justifications).g. e. The government doesn‘t just have to prove the facts. for example. Read the preamble of the statute. Even though you might have the burden of going forward as the defendant in presenting evidence that you acted in self-defense. then (5) Proximate Causation.. Look at common law. they actually have to negate possible defenses (excuses. The jury sees stuff that the appellate judge never sees. Voluntary act A voluntary act is a willed act or ―a willed muscular contraction‖. (2) Burden of persuasion: Now that the issue is before the factfinder (jury or judge). does the conduct include a voluntary act? (3) If no. is this one of those rare cases in which there is a legal duty to act? . We say social harm because this is criminal law. It happens out there. Actus Reus = Voluntary Act + Social Harm Actus reus requires a voluntary act (or sometimes an omission. the absence of self-defense must be proved beyond a reasonable doubt. The appellate court wasn‘t there to see the trial and should not play the role of the ―13th juror‖. the defendant has the burden of proof. Read the title. (2) Social Harm. not tort law. for putting on a certain defense. You assume that all of the facts that are in dispute favor the prosecution. Social harm means something very specific. On the other hand. Warning! Voluntary has several different meanings. On appeal. not whether they would have acquitted or should have acquitted. or failure to act) that causes social harm. yet it has a very broad meaning. in the physical world. prosecutors. The elements of a crime At exam time. self-defense. Questions to ask about the voluntary act or omission: (1) Was there conduct? (2) If yes. or the burden of producing evidence: Who has the responsibility of putting on evidence in a particular case? The government has the burden of producing evidence regarding any element of a crime. Anything that constitutes an element of a crime is something the government must put on evidence for. Also. you just do what it says. Martin v. It’s hard to come up with a statute that will work! It’s hard to avoid vagueness and overbreadth! Burden of proof There are two kinds of burdens of proof: (1) Burden of going forward. So. Owens v. and more to do with limiting government power in general. It turns out that he is arrested at home and taken out onto the road. judges. who must convince the factfinder in regard to the issue? Why do we have such a high burden on the government to prove their case? The theory is that the cost to society of jailing an innocent person is much higher than releasing a number of guilty people.‖ The only issue on appeal. The appellate court can overturn the conviction if they think. The benefit of the standard is that it assures public confidence in the system. The framers of the Constitution wanted the community to judge the defendant. the standard inspires confidence that innocent people don‘t get convicted. (4) Actual Causation. This is the difference between choosing to pull a trigger and kill someone and having a seizure and plugging the trigger without will. you look at legislative intent: Read the statute carefully. State – ―[A] conviction on circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence. State – Martin is convicted of ―being drunk on a public highway‖. is whether a reasonable jury could have convicted. If it‘s ambiguous. The mens rea (or guilty mind) deals with the state of mind the actor had in committing the actus reus. the government has the burden to prove beyond a reasonable doubt that the defendant didn’t act in self-defense. (3) Mens Rea.The court says that if a statute is clear. Look at precedent cases. as distinguished from the trial court. But in some jurisdictions. and in particular. He says that the statute implicitly requires him to voluntarily go to a public place while drunk. Look at legislative history.

when you have assumed a contractual duty to care for another. rather than a merely moral duty. Transferred intent Common law talks about the transferred intent doctrine. People v. The culpability meaning is the broad meaning that just means ―evil mind‖. bad Samaritan laws). Model Penal Code § 2. Omission Two forms of omission liability: (1) Statutory duty (e. Mens rea The issue with mens rea goes to social harm. rather than merely a human body. The court says the physician has no duty to act once the treatment is found to be ―disproportionate‖. However. Specific intent can mean the requirement of: (1) intent to commit a future act. The only ways you can be found guilty due to omission are: If the law says that your omission makes the crime. the treatment is ineffective because the patient will never recover substantial brain function. you will have a duty if by having started then quitting you put the person in a worseposition than if you had done nothing at all. We can‘t deter pure accidents. which says that ―intent follows the bullet‖. or (3) proof of the actor‘s awareness of an attendant circumstance. duties of parents. The ―elemental‖ meaning is ―the particular mental state required by the definition of a particular offense‖. People v. If you don‘t have a guilty mind. (2) conduct elements. Agency is required to attach blame to a person. you must draw the distinction between these two elements and attendance circumstance.01 says: In order to be found guilty. when you have voluntarily assumed the care of another and in so doing kept others from helping. Barber v. How can he be found guilty under the Model Penal Code? The conduct must include a voluntary act. or if you breach a duty imposed by law. The main question is whether the omission (no longer providing life sustaining care) was lawful. (2) Commission by omission: When a statute imposes a duty. § 2. The Model Penal Code eliminates the need to play with words. Regina v. you still have the mens rea necessary to constitute the crime. when you create a risk of harm to another People v. If you have no legal duty to act. but it usually doesn‘t matter. When a person is doing something he shouldn‘t be doing and causes a certain social harm.State v. Utter – The Model Penal Code says that a ―voluntary act‖ is a necessary element in any crime. but rather an actual intention to cause the social harm of the crime or to recklessly cause the social harm of the crime. tax laws. Superior Court – Life sustaining treatment must be continued when it is proportionate. but you start to act. and (3) attendant circumstances. think about whether you mean the ―culpability‖ meaning or the ―elemental‖ meaning. Whenever you talk about mens rea. nor can we find fault for pure accidents.03(2)(a) – your mens rea is purposely or knowingly if you cause a result that differs from the intended result only by who or what is affected. someone intends to do something when that something is the conscious objective of his conduct. and it has three components: (1) result elements. If you had intent. Beardsley – Should people be punished for omissions? Omission is defined as the neglect of a legal duty. the treatment must be continued so long as the benefits exceed the costs. NOT thought about act‖. There is no duty to act if the prescribed course of treatment has been shown to be ineffective. but then quit.g. more or less. It is often difficult to draw a distinction between the result of an act and the conduct related to an act. we can say they did that act in a morally culpable manner. Cunningham – Malice is not merely wickedness. Conley – Under Illinois law. Think: ―Mens rea = thought about harm. General versus specific intent There are at least three different definitions of general and specific intent. Decina – Decina says he should be acquitted because he committed no voluntary act. . In other words. The breadth or narrowness of the time frame will relate to the conduct that constitutes the crime charged. That doesn‘t mean that all the conduct must be voluntary. Someone does something knowingly when they are consciously aware that something is practically certain to happen based on his conduct. but hit the wrong person. In this case. you must either do something or not do something that you were physically capable of doing. An ―involuntary act‖ removes agency. The omission was lawful if there was no legal duty to act. The elemental approach requires a more precise analysis than the culpability approach. (2) proof of a special motive. Social harm Social harm means any harm to any socially valuable interest. when you a have certain status relationship to another. we won‘t find fault.

There is no subjective fault. Moral culpability is general intent. If an offense requires a culpable mental state but isn‘t a specific intent crime. Morris – One may be punished for damaging federal computers unintentionally if the damage resulted from intentional access to the computers. He only accessed the computers knowingly. and the mistake proves that the defendant did not have such a purpose. then the defendant must be acquitted. Negligently. we include mens rea words in most statutes. as the Model Penal Code does. could refer to an offense that sets out a particular mental state as part of the crime. knowledge means awareness of facts. this is basically the equivalent of Model Penal Code ―purposely‖ and ―knowingly‖ in one. they have to be totally explicit about it. and (3) proof of awareness of attendant circumstances.02.04 say about this case? It says either the mistake does or does not negate the required mens rea for the crime. not just any bad or immoral state of mind. recklessly or negligently with respect to each material element of the offense to be guilty. which talks about disregarding a substantial and unjustifiable risk? Many critics say this provision is no good because it defies understanding what it means to ―know‖ something when in fact you don’t know it. The Model Penal Code drafters don‘t like the idea of ever punishing a person whose culpability is mere negligence. The Model Penal Code rules! ―Mistake of fact‖ is not a true affirmative defense. You must act purposely. and thus some level of culpability. If a legislature wants to punish a negligent person. you require actual knowledge. you must show that they were aware of the attendant circumstances necessary to constitute an offense. Navarro – A good faith mistake is a defense when it negates a required mens rea of the crime. In Missouri. This is not the Model Penal Code formulation. Knowingly. What is the mental state of a person who is aware of a high probability that.Today. There would be a mens rea. Intentionally. A person acts knowingly when they are aware that the result is ―practically certain‖ to follow. When there is no specific kind of culpability given. At common law. on the other hand. as a general matter. Specific intent is negated by mere good faith mistake. K. or strict liability crime? If it‘s strict liability. A person acts recklessly when they consciously disregard a substantial and unjustifiable risk. or else you can. did he act in a morally culpable manner? We would more or less be saying he was negligent. K. you‘re . specific intent. Dres sler says that ―P. What argument can be put forward against this ―wilful blindness‖ provision? It blurs the line between knowledge and recklessness. If. ―General intent‖ may refer to an offense for which no particular mental state is mentioned in the statute. R. The first thing to do when you‘re in a non-Model Penal Code jurisdiction is to ask: is it a general intent. K. Morris would have been found not guilty under the Model Penal Code because he did not perform all the elements of the crime knowingly. and reasonableness is not needed. A person acts purposely when it‘s their conscious object to do the conduct or cause the result. a female dancer is under the age of 17? Isn‘t that very similar to the definition of recklessness. Purposely. the Criminal Code dictates that in order to prove that someone did something with knowledge. The actor should be aware of a substantial and unjustifiable risk. in this case. R. all the required elements of the offense must be accompanied by. it will be harder to get convictions in cases like this. What would Model Penal Code § 2. a special mental element above and beyond the ―general intent‖. you assume ―P. knowingly. It is really a challenge to proof beyond a reasonable doubt of mens rea. Nations claims the defense that the state must prove that she knew the girl was underage. ―General intent‖ may mean any mental state that only relates to the acts that constitute a crime. We could attack this two ways: we could knock down the standard of culpability in the statute to recklessness. in this case. Nations – In Missouri. Recklessly. knowledge in order to find guilt. If the belief was unreasonable. If themens rea is the ―intent‖ or ―purpose‖ to steal. ratchet up the mental state of ―wilfulblindness‖ to knowledge. When you have a specific intent crime. United States v. State v. for example. There must be either P. You must show a particular state of mind.02(4) says that in the absence of clear language to the contrary. as in Missouri. whereas ―specific intent‖ would mean. then it‘s a general intent crime. He did not cause damage knowingly. § 2. Kinds of culpability § 2. or N with respect toeach material element of an offense. N‖ is acontinuum of culpability. by statute. or R‖. Why did the court reverse the verdict? He lacked the specific intent required for the crime. there are typically three types: (1) intent to commit a future act. here we‘re talking about knowledge of an attendant circumstance. This provision effectively means that the Model Penal Code applies an elemental approach rather than a culpability approach to mens rea. Mistake of fact People v. ―Specific intent‖. on the other hand. (2) proof of a special motive.

and strict liability. This is a very limited exception. On the other hand. The . if ignorance will never get us off. was reasonable. A casual or unofficial interpretation of the law from a public official is no good. People v. However. It can be argued that this is unjust. we end up asking: are you a bad guy? The answer turns out to be yes. because that person is not blameworthy. make it a crime! There‘s a lack of notice and the risk of the court creating crimes. this conviction was upheld. then at common law you must apply a ―culpability‖ analysis. Regina v. It is a position that some jurisdictions still do use. It‘s crucial at common law to distinguish between general intent. unless the statute itself says to the contrary. more or less. you always apply ―elemental‖ analysis. Under the Model Penal Code. In short. Mistake of law Generally. However. § 2. What are the exceptions? § 2. If it‘s so wrong to take an 18year-old away from her parents. Intent doesn‘t matter. we allow a defense. § 2. we have no incentive to learn the law. In a sense.02(9): this codifies. The “legal wrong” doctrine The ―legal wrong‖ doctrine is basically the ―moral wrong‖ doctrine with the word ―legally‖ substituted for the word ―morally‖. sometimes courts will fall back on the ―moral wrong‖ or ―legal wrong‖ doctrines when dealing with a general intent crime committed under a reasonable mistake of fact. However. Under common law doctrine. § 2. This doctrine says that if the defendant acted immorally. mistake of law may negate the mens rea necessary for a crime. The other problem is the principle of legality. However.‖ The utilitarian rationale for such a harsh rule is that admitting the excuse of mistake of law encourages ignorance of the law. However. Basically. and be found guilty of a more serious crime. you don’t have to prove that the defendant understood the law. it is reasonable for him to assume the risk that the circumstances are different from what he thinks they are and thus be found guilty of some crime. The “moral wrong” doctrine When you use the ―moral wrong‖ doctrine. We don‘t allow a defense based on a personal misunderstanding of the law. There are lots of things that people do that are immoral that are not a crime. The common law says that ―Ignorance of the law is no defense. Retributivists say we mustn‘t punish someone whose mistake of law is reasonable. usually. the defendant would assume the risk that the facts were not as he believed them to be.02(9) does not ordinarily require proof that a defendant knew that a law existed or understood it. In the Model Penal Code.done. you look at the world through the eyes of the defendant and assume the facts as the defendant himself understood them. but rather a reasonable reliance on an official statement of the law from a public official or some other source. if we make a reasonable effort to learn the law and are thus given a defense. If you have a general intent crime. This is a classic utilitarian statement. and thus mistake doesn‘t matter.04(3) provides a limited set of circumstances in which even though knowledge of the law isn‘t an element of the crime. You must ask whether the defendant‘s state of mind was blameworthy. Look at Model Penal Code § 2. We do not live in a world where everything that is immoral is illegal. we have a good incentive.02(9) makes an exception to this general rule. the common law idea that generally knowledge of a law‘s existence and understanding of its meaning is not a required element of an offense.02(1): there must be a mens rea for each element of the crime. mistake of law will not relieve an actor of criminal liability.04(3) further says that you may have a limited defense on the basis of your reliance on an official statement of the law from an appropriate source. you ask if the mistake relates to the specific intent portion of the crime. If you have a specific intent crime. Here. then you lack one of the necessary elements for the offense.04(3) does not permit a defense based on your personal misunderstanding of the law. Why? Taking an 18 year old away from her parents was considered immoral even though it‘s not illegal. The Model Penal Code approach: § 2. Many jurisdictions do not apply this doctrine anymore. Marrero – Mistake to law may negate intent but it is not a defense to a strict liability crime. even though there is a reasonable mistake of fact. Prince – A reasonable mistake means there is no culpability. We‘re willing to concede that this individual does not deserve punishment. and in turn their behavior. Put this together with § 2. we do not give people a defense from a mistake of law. because he may be convicted of a crime that requires a higher mens rea than he has.04(1) creates the exception that if the definition of the crime itself requires knowledge of the law and you didn‘t know it. It is up to the legislature to draw a line between the illegal and the merely immoral. § 2. § 2. and in particular you must ask whether or not their mistake. specific intent. he will be convicted of the lesser crime.04(1) says that if the statute explicitly says you must know the law to be subject to it. yet our interest in persuading people to learn the law outweighs that individual‘s interests. then fine. except for very few special cases where they made a reasonable mistake based on anofficial statement of the law. though.

then it is a case of ―direct harm‖. Then you look to see if there were any other ―but for‖ causes that occurred between the time of the voluntary act and the time of the social harm. then it is an actual cause. If something is a proximate cause. some crimes have a ―proximate cause‖ element that is wider than ―but for‖ test. That‘s not to say that the common law rules and doctrines are no longer relevant. we pick and choose on grounds of justice which possibly blameworthy person we will hold accountable. With proximate causation. Proximate cause There is no categorical rule that answers these questions. specified source) that is afterward determined to be invalid. United States – Cheek was indicted for failing to file and tax evasion. an intervening act is a response when the act is a reaction to the conditions made by the defendant for the victim. Now we have a serious proximate causation issue because we must decide who we want to hold responsible. you must discuss actual cause first and then discuss proximate cause. Does an honest but unreasonable belief negate willfulness? A claimed good-faith belief need not be reasonable in order to be considered as a defense. it‘s ambiguous whether a culpability or mens rea word modifies everything that comes after or only some bits. Kibbe v. bizarre. however. Often. or in other words. Coincidental and responsible intervening causes – An intervening act is a coincidence when the defendant‘s act just put the victim in the wrong place at the wrong time. and abnormal. which tells you that there‘s an exception to the ―ignorance is no excuse‖ rule when the statute specifically says you must have knowledge. there are a number of tests and standards for proximate cause. he argued that he sincerely believed he didn‘t have to pay his taxes and thus he acted without the mens rea required for the crimes. State – Courts usually use the ―but for‖ test of causation. there will be some ―intervening cause‖ that comes between the act and the harm. recklessness. Note that in these areas. There is no black letter rule for judging proximate cause. . that means the defendant is actually the actual cause of the harm. if we‘re not in a Model Penal Code jurisdiction. you will want to use them for the purposes of arguing justice to the jury. In this case. If we don‘t blame the defendant for the death of the victim. That‘s an easy case. Velazquez v. Sometimes. On the other hand. Basically. would the social harm of the offense have occurred when it did?‖ If the answer to this question is ―yes‖. the Model Penal Code is more or less a restatement of common law. or negligence in regard to the law.defendant must reasonablyrely on an official statement of the law (from an appropriate. With actual causation. think about a line going from the act of the defendant and the social harm. the state must prove beyond a reasonable doubt that the defendant caused the victim‘s death. Now we‘re in the area of deciding what is just and fair. Henderson – By statute. We are forced to decide whether or not we should hold the defendant accountable for the death. Cheek v. If the answer to this question is ―no‖. People v. Weiss – Weiss claims that he thought he had authority of law. If there is nothing that comes between the act and the harm. that means the defendant is not the actual cause of the harm. who do we blame? The real issue is a policy issue. which says that a defendant‘s act was the cause-in-fact of a result if it wouldn‘t have happened if it weren‘t for their action. However. In his defense. Look at § 2. Is it just to hold someone responsible for a harm given the way in which it happened? In other words. Whenever you think about a proximate cause question. we create a ―line-up‖ of all the possible people who could have caused the harm. in which case the defendant is not the proximate cause unless the result was foreseeable. courts substitute the ―but for‖ test with the ―substantial factor‖ test when two or more defendants did the same thing at the same time causing the intended result.04(1). How does Weiss‘s mistake differ in character from that of Marrero? Duress might be relevant to the question of whether the mistake was reasonable. Causation Actual cause Here‘s the definition: ―But for the voluntary act or omission of the defendant. the Model Penal Code is getting away from all the complicated tests from common law and is suggesting that we give the jury the basic question of whether the result is just. At common law. Therefore. even though he didn‘t want to kill the victim. Finally. the defendant is in the actual cause ―lineup‖ by himself. we have a number of intervening causes. As an attorney. in which case the defendant is the proximate cause unless the intervening cause is unforeseeable and very highly unlikely. courts won‘t find defendants guilty if the result of their conduct was unforeseeable or when it just wouldn‘t be fair to find them guilty.

justice-oriented analysis‖.03(2)(b) and (3)(b) Criminal homicide Murder is the killing of a human being by another human being with malice aforethought. Midgett and Forrest – If these two cases are rightly decided. It‘s just the mental state that changes. When we‘re talking about degrees of a felony. just like rape and some other crimes. Dressler recommends trying problem 11G on page 208. To get familiar with these tests. The act is always the same: killing somebody. we find that Midgett committed second degree murder. an excuse or any mitigating factor. However. The standard for determining premeditation is whether the defendant had time to take a ―second look‖ before acting. There must not be a justification. State v. Murder is a felony of the first degree in the Model Penal Code. You could premeditate without meeting the deliberation requirement. while Forrest committed first degree murder. there must be intent to kill for some finite period of time before the act occurs. “Malice aforethought” What is “malice aforethought” at common law? It is either (1) the intent to kill. but there are degrees of felonies. There are a number of other tests in the book. That‘s not the same thing as murder in the first degree. Have we come up with a meaningful way to distinguish first and second degree murder? Does the ―willful. deliberate and premeditated‖ distinction do the work we want it to do? Is the Model Penal Code right that we shouldn‘t have degrees of murder? Adequate provocation . it permits conviction so long as the ―actual result…is not too remote or accidental in its occurrence to have a [just] bearing on the actor‘s liability‖. At common law. The Model Penal Code on proximate cause – The Model Penal Code advocates a ―frank. ―Aforethought‖ doesn‘t really mean anything anymore. If a defendant is the actual cause of the result. we reach back to the person who intended to cause the harm to find the proximate cause of the harm. How did we define acting with “malice” earlier in the semester? It means acting ―intentionally [purposefully or knowingly] or recklessly‖. we would assign proximate cause for her death to her based on this doctrine. there are really two kinds of manslaughter: so-called voluntary and involuntary manslaughter. An intentional killing that is not ―premeditated and deliberate‖ would be second degree murder. Premeditation is how long you think about your act. What’s murder at common law? It‘s ―the unlawful killing of another human being with ‗malice aforethought‘‖. Schrader – On appeal the defendant says that for a killing to be premeditated. At common law. The Model Penal Code is. or (4) the intent to commit a felony (felony-murder rule). a return to the common law. there are lawful killings of other human beings without malice aforethought. What’s the common law definition of manslaughter? It‘s the unlawful killing of another human being without ―malice aforethought‖. The Model Penal Code doesn‘t contain a requirement of ―malice aforethought‖ or the word ―unlawful‖. (2) intent to cause grave bodily harm. The distinctions that exist at common law and in the Model Penal Code as well as the various non-Model Penal Code homicide statutes between murder and manslaughter as well as between degrees of these crimes are all functions of mens rea. but here it‘s a common law concept. Deliberation involves ―weighing‖ the issue. At American common law. murder is murder and that‘s how it is in the Model Penal Code. Everything that we‘ll be covering in the remainder of this chapter will deal with mens rea. Model Penal Code on criminal homicide In the Model Penal Code. there are no degrees of murder. we no longer consider that defendant a proximate cause. such as killing in self-defense. all felonies carried the death penalty. These distinctions existed inEngland by statute. (3) recklessness (depraved heart). Murder is a felony of the first degree. in a sense. The apparent safety doctrine – The ―apparent safety‖ doctrine says that once the danger from the defendant is no longer present. though not the way she wanted. States decided that not all felonies deserve the death penalty. § 2. we must say ―probably‖ because this is just one way to look at proximate causation. In other words. We just have PKRN. we‘re talking about statutes. We will probably hold her to be the proximate cause of the death.The intended consequences doctrine – Based on the intended consequences doctrine. Notice that in this case. the mother got what she wanted. The question is: did the victim reach ―apparent safety‖? Since she could have easily gotten into the house. This is incorrect according to the interpretation of the statute in the state at the time: no time is too short for someone to form the intent to commit murder. There are no degrees of murder at common law! Know this for the exam! ―Degrees‖ of murder are purely statutory.

There are several ways we might want to bring a defendant‘s characteristics into the ―reasonable man‖ standard: (1) Was the defendant really provoked to lose self-control? (2) Was the provocation severe to a reasonable person? (3) How much self-control is expected of the reasonable person? Director of Public Prosecutions v. If the person killed negligently. at the other end of the spectrum we‘ll have recklessness. which isn‘t even in common law. while murder can be a ―reckless plus‖ killing. Further down the line. the provocation is not words alone because the victim jumped on the defendant and pulled his hair. followed by risk-taking that might constitute negligence in criminal law. Depraved-heart murder We will consider cases where the defendant does not intend to kill. when the court talks about express malice it is talking about intent to kill. Instead. we don‘t want domestic disputes to end in the killing of a spouse. in order to be charged with murder as opposed to manslaughter. they possess malice and thus they have committed murder. At common law. when someone is found to be reckless. then any risk is unjustifiable. then the jury would decide whether or not that disturbance was reasonable. or in other words. A reasonable person would not take such a risk. If the judge finds that there was extreme emotional disturbance. then you could get into a strange situation: if a tiny risk is unjustifiable but not substantial. but may still be found guilty of murder. It‘s your role as an attorney to make the argument why a jury should come out a certain way. the defendant argued the partial excuse of extreme emotional distress. The defendant argues that the evidence in dispute speaks only to his character rather than his awareness of risk. . Berry took an unjustifiable risk. Girouard v. words alone are never adequate provocation to partially justify or partially excuse homicide. there will be some risk-taking that is entirely innocent at one end. At common law. and act. if someone commits homicide recklessly. Berry v. The defendant must show that he has a reasonable reason for being in the condition he was in. the defendant must be shown to have had a knowledge of the ―high degree of risk‖. People v. there is risk-taking that might constitute negligence at a tort level. In the Model Penal Code. If you take this literally. If they are criminally negligent. The defendant appealed on the basis that he wasn‘t allowed the extreme emotional disturbance defense. The expected harm (pL) exceeded the benefit of keeping the dog in the neighborhood (B). At common law. The reasonable man To what extent should we ―subjectivize‖ the ―reasonable man‖ standard? It is argued that if you include some subjective characteristics. Strictly speaking. it could be either murder or manslaughter. it only talks about extreme mental or emotional disturbance. they have committed involuntary manslaughter. Superior Court – In California. The defendant takes an unjustified risk. The reason for this rule is that as a matter of social policy. The Model Penal Code claims that the bottom line is whether the jury can be sympathetic to a defendant in a particular case. under the Model Penal Code. Extreme recklessness will be murder at common law or under the Model Penal Code. they must be shown to be reckless. you must include all characteristics. His awareness of risk was not at issue because the prosecution charged him with a crime that does not require such awareness. (2) heat of passion. Camplin – Should the defendant‘s reaction be judged against a reasonable grown-up or a reasonable boy? The text of the Homicide Act refers to the ―reasonable man‖. If the reason for taking the risk is socially useless or unacceptable. passion. they will not be criminally liable. But at common law.Here are the requirements for mitigation from murder to manslaughter: (1) Adequate provocation. Implied malice suggests any of the other three formulations of malice. The judge found him guilty of murder. Should we include the defendant‘s age in the description of the ―reasonable man‖ we will compare him to? Why should gender count? Should women be held to a ―reasonable woman‖ standard? That‘s a higher standard than ―reasonable (male. Manslaughter is a reckless killing. Hernandez – Evidence is admissible so long as it goes to show that the defendant had the mens rea necessary for the particular offense charged. The Model Penal Code does not talk about ―adequate provocation‖. in Girouard. The Model Penal Code standard for extreme emotional distress is more subjective than the common law standard. If they don‘t meet criminal negligence. The word ―situation‖ in the Model Penal Code section on manslaughter is ambiguous by design. The Model Penal Code has both an objective and a subjective test for the reasonableness of the extreme emotional disturbance that is put forward as a partial excuse. These cases talk about express and implied malice. and (4) causal connection between provocation. words alone never constitute adequate provocation. both the definitions of both recklessness and negligence include a ―substantial and unjustifiable risk‖. manly) man‖ or ―reasonable person). (3) lack of opportunity for the passion to cool. But another way to view this is to look at it as a ―substantially unjustifiable risk‖. If we have a continuum of risk-taking. Finally. and in some jurisdictions even extreme recklessness. you might not be found culpable. State – Words can only constitute adequate provocation to mitigate if they are accompanied by the threat of bodily harm. Casassa – In a bench trial. State v. they can be charged with negligent homicide. No one claims that there was intent to kill. However.

The felony-murder rule It can be argued that felony murder is a strict liability crime. . from a utilitarian perspective. all murder that is committed while committing another felony is considered first degree murder. People v. we might be led to believe that we must acquit the defendant of negligent homicide. then it makes sense to exempt the pickpocket from the felony-murder rule. that element is also satisfied by acting purposely. He doesn‘t necessarily think it‘s correct. Is possession of a concealed firearm inherently dangerous? This is a very common statute. absent this rule from the Model Penal Code. The “inherently dangerous felony” limitation People v. What‘s the best utilitarian rationale for the felony-murder rule? We want to give felons an incentive to commit their felonies safely. tort-level negligence. when a prosecutor uses the felony-murder rule. The defendant could go on the witness stand and make an argument that he intended to kill. they already have intent to kill or depraved heart. Then. Dressler believes that this is thebest utilitarian argument for the felony-murder rule. For example. but on the other hand. Any killing that occurs during the attempted commission of a felony would trigger this rule. California was a leading state in trying to limit the felonymurder rule at the time these two cases were decided. absolute rule. Williams – In Washington. Under this limitation. it does not preclude the prosecutor from convicting for negligence. Does this limitation make sense? We have previously discussed arguments in favor of the felony-murder rule. Maybe. Dressler says if we accept the felony-murder rule. 99% of cases of real world felony murder do not require the felony-murder rule to convict. He says it is subject to empirical analysis. Let‘s say a person is charged with negligent homicide. and so courts have tried to find ways to limit the rule. with ordinary caution‖. the crime in question is not inherently dangerous. Let‘s say someone commits felony pickpocketing. we can‘t deter felons. manslaughter is any homicide committed with simple (as opposed to gross) negligence. this will give the escapee an incentive to escape safely. These are judge-made limits. safe felonies) is the best one. Usually. The Model Penal Code does not look kindly upon punishment of negligence. So their answer was no. State v. or in other words. The court finds that you can violate the statute without any risk of causing death. As long as you can imagine a way that a crime can be committed without creating a substantial risk of death. knowledge. you could make someone‘s mental illness worse without killing them. Usually. for example. However. this rule is controversial. you can show a depraved heart. or recklessly. Some jurisdictions keep the common law rule. Fuller – Under California law. we wouldn‘t apply the felony-murder rule to pickpocketing. Furthermore. This seems quite logical. we may want to keep these people off the street. knowingly. on the other hand. Other jurisdictions have imposed certain limitations on the rule. Consider the rationale that the felony-murder rule will help deter the underlying felony. Maybe we can get the felon to at least commit their felony in a way that reduces the risk that human life will be taken in the process. not gross negligence.The Model Penal Code says that when negligence is sufficient to establish an element of an offense. or recklessness. carrying a concealed firearms is not inherently dangerous because it could be done in a matter no more dangerous than the average schmoe carrying around a firearm. The Model Penal Code says that if a person is charged with negligence and the prosecutor is able to prove purposefulness. homicide is excusable if it is committed accidentally while ―doing any lawful act by lawful means. you basically lose the right to possess a concealed firearm. How does the court cut off the felony-murder theory? The court finds that practicing medicine without a license is not ―inherently dangerous‖. and we accept that the previously stated justification for this rule (safe felons. Is there any basis for ever punishing a person who is incapable of living up to the established. The Model Penal Code has a continuum of culpability. objective standard? It‘s hard to blame someone who is not capable of being otherwise. (1) The court looks at the statute and decides in the abstract whether this is an inherently dangerous felony. This seems totally bogus. Burroughs – To determine whether the felony-murder rule should apply in California. the felony-murder rule is a pure. At common law. because why don‘t you just up the penalty for that felony? Let‘s say. The standard of negligence that had to be proven in this case was civil negligence. (2) The court asks: how dangerous must a felony be in order to be inherently dangerous? What is the standard the court uses? The court considers whether an offense may be committed without a ―high probability‖ of loss of life. What the California Supreme Court said was that white collar felons carrying concealed firearms are no more dangerous than just regular folks carrying concealed firearms. you must use a two step process: (1) Does the primary element of the offense necessarily involve danger to human life? (2) Do the factors elevating the offense to a felony render that offense dangerous to human life? There are two alternative ―inherently dangerous‖ standards: a felony is considered inherently dangerous if (1) it is ―dangerous in the abstract‖ or (2) it is dangerous based on the facts of the case. Once you‘ve been convicted of a felony.

If a state applies both the ―inherently dangerous‖ limitation and the merger limitation.People v. Other courts interpret the ―against the will‖ part to suggest there must be some kind of physical battle going on. it can be used with the felony-murder rule. Maybe we need to provide notice to the man that the woman is not consenting. So false imprisonment is not inherently dangerous. The California Supreme Court adds a caveat: if a felony has an ―independent felonious purpose‖. The resistance requirement If there is a resistance requirement. if she doesn‘t care enough about her ―virtue‖ to protect it. but the court considers them unrelated to the act of sexual intercourse. Note that this independent purpose must be felonious. but it finds insufficient evidence that the sex was forced. In the traditional law. A court that doesn‘t want to apply the felony-murder rule can knock out pretty much all the felonies it wants by applying these two limitations. the latter felony must be ―merged‖ into the homicide and murder must be proven by one of the other three types of ―malice‖. The court finds there is sufficient evidence that the sex was against the victim‘s will. We‘ll go from here and see how there has been movement over time. In some statutes. The “independent felony” or “merger” limitation People v. If the woman resists. Here are some issues to keep in mind: Keep in mind the potential distinction between force and the threat of force. without the victim‘s consent. then why should we? This probably stinks to us now. Felonies that aren‘t inherently dangerous can‘t get a felony-murder conviction. what‘s left? The most dangerous felonies are excluded and the least dangerous felonies are excluded. it vitiates his possible defense of reasonable mistake of fact. Smith – In California. Robbery may fall in this gap. then we are in some sense trying the woman and asking if she resisted adequately. with force. Therefore. the argument goes. in a sense. second degree rape involved: Vaginal intercourse. though it is a general intent crime. fraud. The court finds that there were acts of force and threats of force. you can have force with consent. Henderson – False imprisonment is defined as ―imprisonment effected by violence. The only type of felony that remains is one where it was something inherently dangerous. This case. This court says that there may be non-consensual sex that is not rape. while in others. Some courts argue that resistance is part of force. State v. If a state uses both rules. against the victim‘s will. Was the court right in saying that there was insufficient evidence to show force or the threat of force? What facts might the prosecutor point to that would prove that the defendant forced the victim to have sex? State v. . force is required. it constitutes rape even if the victim gave consent to the defendant for previous acts of sexual intercourse. Rape Almost all of what constitutes rape is the actus reus. we‘ll need to prove a mens rea of rape. only the threat of force is required. Alston – If an act of sexual intercourse is by both force and against the victim‘s will. or deceit‖: it uses its terms in the disjunctive (―or‖). but felonies that are. menace. but not assaultive. Also. Rusk – Was the Court of Special Appeals correct in reversing Rusk‘s conviction? In particular. represents the most traditional case of rape. Discipline of children is not inherently felonious. according to Dressler. A reasonable mistake of fact would be a defense to rape. there is sort of a ―ceiling‖ and a ―floor‖. was the reasonableness of the victim‘s apprehension of fear a question of fact or a question of law? Is the evidence in the record of the case sufficient for a finder of fact to conclude that the act of intercourse in this case was accompanied by ―force or threats of force‖ and to thus find Rusk guilty beyond a reasonable doubt of second degree rape? Under the Maryland statute at the time. the crime described can indeed be committed without a high risk of causing death. ―Requiring‖ the woman to resist for there to be a successful rape prosecution may actually increase the risk of physical harm to the woman. too dangerous won‘t support a felony-murder conviction either because they will merge. Resistance could be conceived of as a form of notice. the felony murder rule is ―inapplicable to felonies that are an integral part of…the homicide‖. Another argument out of the common law is that if a woman is ―what a woman is supposed to be‖ that the only natural thing for the woman to do is to protect her ―virtue‖. Therefore. In such cases. This would include felonies that are inherently dangerous. and the man proceeds anyway. the offense of second degree rape is defined as vaginal intercourse accomplished by force or threat of force against the will and without the consent of the other person. In North Carolina. yet it wasn‘t integral to the homicide. The court seems to suggest that it is necessary for the victim to resist the act of sexual intercourse in order for it to be rape.

S. it might be different. All forms of fornication (sex outside of marriage) were considered immoral. which we‘ve already covered. it’s sexual assault. we don‘t punish people for being less than perfectly virtuous. the judgment of whether forcible compulsion or the threat of forcible compulsion occurred is to be judged on the ―totality of the circumstances‖. Dressler proposes that most people aren‘t going to be upset by this. how can I make sure I won’t be prosecuted? The court says that you must get ―freely given affirmative permission‖ to engage in the sexual penetration. The Kobe Bryant case shows just how embarrassing a rape prosecution can be to a woman. Thus.S. how much force is needed? Is the sexual act itself the force? If there is a genuine resistance requirement in the law. then the factfinder must consider whether. only the worst acts should be criminal. Unless a party gets such permission. In New Jersey. State of New Jersey in the Interest of M. No matter what the victim may have meant by ―no‖. Commonwealth v. it will be a lot harder to tell whether rape has occurred. But if the woman has to resist. The mens rea of rape and mistake of fact The issue of mens rea in the area of rape is almost always whether the man believed that the female was consenting to sexual intercourse. At common law. – Is any force required besides the force of sexual intercourse itself to find the defendant delinquent for second-degree sexual assault? NEW RULE! ―[A]ny act of sexual penetration engaged in…without the affirmative and freely-given permission of the victim…constitutes the offense of sexual assault. M. Might that apply in Berkowitz? The thing is that this offense requires a threat rather than actual force. one of two things happens: (1) the man stops. we do not treat morality and criminal law as exactly the same. then the woman was required to resist. If the evidence shows beyond a reasonable doubt that the defendant knew that the sexual penetration was accomplished without freely given affirmative permission. there is the mens rea question of what the defendant understood by her saying ―no‖. So what is the new rule of sexual assault in New Jersey? In other words.‖ The court focuses on the defendant‘s conduct and rejects any judgment passed upon the victim except as it pertains to the actions of the defendant. If the evidence shows beyond a reasonable doubt that the defendant believed that the sexual penetration was accomplished with freely given permission. We don‘t know what it means. Rape is a general intent crime. Therefore. If you don’t get permission. Berkowitz – Under the Pennsylvania statute at the time. Permission must be externalized. the mere act of sexual penetration constitutes the force required under the definition of the crime. which constitutes the force necessary to the offense at common law. The common law rule of resistance If the man used force likely to cause death or serious bodily injury. aren‘t we inquiring into an internal state of mind of the alleged victim? Dressler says that permission is an ―externalized‖ form of consent. But no one would suggest that we‘re approaching a maximalist approach. the woman had to resist to the utmost to fight the man off. Maximalist – anything that is immoral should be criminal. Rape is a general intent offense. it is much easier to determine by law if a rape has occurred. physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. In certain theocratic countries. Minimalist – not everything that is immoral should be criminal. If we take away the resistance requirement. We seem to be moving away from a minimalist approach. that belief wasreasonable. If we remove the resistance requirement. The Model Penal Code provides for a lesser offense related to rape called ―gross sexual imposition‖. Is this a good way to define criminal sexual assault? How could the defendant prove that the alleged victim gave permission? Imagine how humiliating the trial has just become! But how else can the defendant defend himself? This sends a message to women about whether they want to bring charges.T. if I’m going to have sex. Every year. In this country. then the defendant should be found guilty. This is mistake of fact. A reasonable mistake of fact is normally a defense to a general intent crime. it shows that she was an unwilling participant in something that was considered a crime on the part of both parties. we apply a culpability analysis and ask whether the defendant‘s mistake of fact was reasonable. given the totality of the evidence. We all sometimes do things that are immoral. Permission cannot be given by omission.Coughlin tried to explain the law of rape in terms of the Victorian period and the use of rape as a defense to adultery. we are clear to convict. Does ―without consent‖ necessarily mean ―against one‘s will‖? When we ask whether something was done without consent.T. In the United States. So if the woman resists. permission can only be given by acts or statements. If the man used less force. stands alone. the law at common law did not require the woman to resist. the Penal Code gets thicker. and we don‘t know what other states might argue it. or (2) the man overcomes her resistance. . If the defendant‘s mistake of fact was unreasonable. does the victim saying ―no‖ allow us to construe force on the part of the defendant? Under the rule of Rhodes.

and some are just barely relevant.MacKinnon thinks the mistake of fact defense is stuuuuupid! Why is this statement not as silly as it sounds? We point to the law and say that a rape has not occurred without an actus reus and mens rea. we use elemental analysis and ask whether the mens rea of the crime was proven or not. You‘re going to basically get in trouble for wanting to have sex with someone. So. Commonwealth v. If it‘s not relevant. There isn‘t quite equivalent language for rape. or R. the claim by the defendant that ―I thought she was consenting‖ becomes more plausible. does the mistake of fact negate the required mens rea of the crime? Under this view. The husband of the victim told the other men that his wife will resist. The perpetrators argued that she was consenting because the husband told them she was consenting. Some facts are hugely important. All that relevant means is that there‘s something about those facts that would move the rational factfinder towards the side of the prosecution or defense. that‘s strict liability. rape is a specific intent crime because ―intent‖ modifies the attendant circumstance of ―without her consent‖. Is it relevant that the victim had blond hair? Is it relevant that the defendant wore a beard? You can imagine situations where both are relevant though in many cases these facts would not be relevant. Is there a time-framing issue? There is a movement going to try to make rape into ―sort of‖ a strict liability crime. recklessness. That would convert rape to a general intent crime to a strict liability crime. it would make sense to say that someone was ―killed. then the prosecution must prove beyond a reasonable doubt that the defendant intended to (1) have sex. but not by a murderer‖. This will be awful for the woman. Regina v. since no mens rea term was mentioned in the rape statute. This was false. K. In Lord Hailsham‘s mind. non-consensual sexual intercourse‖ for the actus reusof rape. That doesn‘t mean that unreasonable mistake of fact always implies negligence rather than. Think seriously about the question of what the mens rea of rape ought to be. it‘s strict liability. there is always an issue of interpreting instructions as to whether a certain mens rea term modifies one or several subsequent actions. This was not previously an issue under the more narrow rape laws of the past. they got mad a demanded a new statute. One view is that as soon as a woman says ―no‖. The first question in any criminal or civil case is whether or not the evidence is relevant. it doesn‘t belong in the trial. but that‘s just a game for her and they need not mind it. Rape shield laws The basics – Here‘s the problem these laws are designed to fight: the defense will try to get a bunch of evidence out to try to make the alleged victim look like a ―slut‖. If the man should have knownthat the woman was not consenting. . In other words. It‘s different to say that someone was ―raped‖ in the actus reus sense than to say that someone committed the crime of rape. we won‘t admit evidence that she had consensual sex with others. When we talk about murder. that‘s negligence. Once you hear the words ―you assume the risk‖. As the definition of the actus reus of rape is expanded to include more and more potentially ambiguous events. why would a woman ever report the crime? We might admit evidence that the woman in the Kobe Bryant case had consensual sex on other occasions. There‘s a problem of vocabulary. At common law. Sherry – The defense of mistake of fact requires such a mistake to be reasonable and in good faith. It is argued that the defendant intended to have sex with the victim with her consent. Lord Hailsham makes sense. England is moving somewhat in the opposite direction from the United States. Any belief that the ―no‖ didn‘t mean ―no‖ would be deemed unreasonable mistake of fact as a matter of law. and (2) do with without the woman‘s intent. unless maybe we use ―forcible. Morgan – This is the so-called ―kinky wife‖ case. the character of the alleged victim is damaged and the jury becomes prejudiced. rape becomes a specific intent crime in England for a short time. but under rape shield laws. When the public found out about this. Parliament backed away from Morgan. Dressler‘s problem is that once you say a mistake is unreasonable no matter what. If we have a specific intent crime. What would be the level of mens rea required to be guilty of rape at common law? It would appear that it‘s negligence. It can be argued that this evidence is relevant because it would go to show that the alleged victim has consensual sex a lot and therefore could reasonably be seen to have had consensual sex in this particular case. It‘s getting increasingly difficult for a defendant to get a mistake of fact claim to a jury. the defendant proceeds at his own risk. But even when you can make that argument. If we use an elemental analysis. Also. say. There‘s also a trend in the opposite direction. Due to this decision. Under the Model Penal Code. Rape turns out to be a crime of negligence. just like in the English law. she was really resisting. the level of mens rea required would be P.

You don‘t need an excuse for an act that‘s not bad. it doesn‘t need to be excused. unlawful. Not just any cross-examination is allowed. A justification defense says that what the defendant did wasn’t wrong. How long will it take to put on the evidence? If it will take six hours to put on this evidence. Justification When you‘re justified. you‘re not guilty of any crime. 2. namely: (1) Proportionality – the force used is proportional and reasonable in relation to the harm threatened. What is unusual about rape shield laws is that the legislature has found that certain kinds of evidence are either always irrelevant or always inadmissible based on public policy considerations. if you have a justification. and deadly attack by the other person. Except for rape shield laws. you learn that prior bad acts are not admissible as evidence to the jury because they may be prejudicial. The defense tries to break down an essential element of the crime. There may also be a factor of time consumption. This set of elements also fit the structure of a justification defense. Self-defense Common law principles Deadly force used in self-defense is justified at common law when: The defendant is a non-aggressor and the defendant reasonably believes that deadly force is necessary to repel an imminent. .The second question is whether the probative value of evidence outweighed by other factors? For example. It has never been thought that you can cross-examine your accuser without any bounds. In order to justify the use of self-defense on the basis of deadly force. It‘s sort of more like a lack of offense. showing that it hasn‘t been proven beyond a reasonable doubt. The Supreme Court has held that Sixth Amendment rights are not absolute. Four theories of justification: (1) Public benefit. If the evidence has a small amount of factual significance versus a big amount of prejudice. An excuse. (2) moral forfeiture. Almost all rape shield laws have some exceptions that bow to the Sixth Amendment. If conduct is justified. The Sixth Amendment provides the defendant a constitutional right to cross-examine his accuser and call witnesses on his own behalf. rape shield laws undermine the Sixth Amendment. then that evidence doesn‘t get admitted. (3) moral rights. mistake of fact. on the other hand. for example. if not actually good. Defenses 1. 3. Simpson case. in the O. In the ―kinky wife‖ case. Is that evidence relevant to whether he killed her? Maybe it is relevant. To some degree. 5. you may not be guilty of the offense. (2) Necessity – the force used is necessary to protect the interest at stake. Mistake of fact in a rape case negates an element of the alleged offense: the mens rea.J. Deadly force generally means either force likely to cause death or serious bodily harm. if you act in justifiable self-defense. These exceptions allow the judge to decide that in a particular case. Lord Hailsham says there is no room for mistake of fact as a ―defense‖. and (4) lesser harm. 4. Failure-of-proof ―defenses‖ Offense modifications Justifications Excuses Non-exculpatory public policy defenses Be very sensitive to the difference between excuse and justification. we might boot it out. the defendants‘ need to have certain evidence introduced trumps the victims‘ interests protected by the rape shield laws. focuses on the actor rather than the act. it means that what you did was at least not wrongful. At common law. Which of the five categories above contains mistake of fact? It‘s a failure-of-proof defense. He put defense in quotes because he thinks that failure-of-proof isn‘t a defense in the ordinary sense. Take. you must be trying to repel deadly force in response. Even if you have the intent to kill that usually constitutes malice. the prosecution wanted to introduce evidence that Simpson beat his wife. but the probative value is low. You can use deadly force to defend against potential crimes other than murder. then you‘re not guilty. The rest of the defenses that we‘ll talk about in this chapter will fall into the categories of justification and excuse. But is its relevance outweighed by other factors? In Criminal Procedure. the admissibility of evidence is determined primarily by the judge on a case-by-case basis. Even if you prove all the elements of the crime of murder.

. rather. The defendant would be guilty of negligent homicide if the defendant was negligent. The common law says. State v. Under the reasonable belief requirement. Norman – If North Carolina applies the common law. However. Goetz felt that the prosecution gave an objective standard whereas the standard should have been subjective based on the statute. it focuses on the actor to figure out if it is necessarynow to use deadly force against the victim. then under the Model Penal Code the defendant wouldn‘t be guilty of murder. At common law. The Model Penal Code says that § 3.04(2)(b)(ii) says that you can‘t use self-defense if you can retreat. People v. The sanctity of human life is valued so highly that the law doesn‘t even want ―bad guys‖ killed unless it‘s absolutely necessary. Thus. “Reasonable belief” at common law Say a defendant shoots someone believing they have a real gun when the gun is actually fake. Does syndrome evidence arguably turn a justification defense into an excuse? “Self-protection” and the Model Penal Code § 3. Under the ruling of this case and in most common law jurisdictions. The Model Penal Code. The Model Penal Code chooses ―designedly ambiguous‖ language to describe the standard of behavior: ―a reasonable person in the actor‘s situation‖.04(2)(b). Goetz – The reasonable person standard for self-defense as justification is an objective standard. not objectively. This statute uses the word ―immediately necessary‖ rather than ―imminent‖. Self-defense cannot be claimed by someone who deliberately puts himself in danger. The thing is that the defendant will obviously think that what he‘s doing is reasonable. Dressler argues that this could create a situation where two people could justifiably kill each other. § 3.04.04(2)(b)(i) deals with one limitation on the use of deadly force: the defendant mustn‘t provoke the use of force with the purpose of causing death or serious bodily injury. the gun was obviously a toy then the defendant loses the self-defense claim because the belief about the threat wasn‘t objectivelyreasonable. even though the person couldn‘t or wouldn‘t have killed the defendant. or must she be judged by the objective standard of a reasonable person? The ruling says that the defendant‘s actions must be judged subjectively. and the defendant would be guilty of manslaughter if the defendant was reckless. on the other hand. The basic issue in this case is bringing gender into the discussion of the reasonable person. Norman would not even be entitled to an instruction on the justification of self-defense. the Supreme Court of North Carolina represents the traditional view. State v. That becomes a subjective standard because we‘re not interested in what a reasonable person would do. Even if you meet § 3. In order to find the aggressor.04(1). case law has clarified this result to mean that they use a ―reasonable woman‖ standard. very highly. not minutes or hours or days or weeks. But the defendant may be an unreasonable person. the actor isn‘t justified as far as reckless or negligent offenses. it‘s very difficult under the Model Penal Code and at common law to win on a self-defense claim. The Court of Appeals of New York rules that the statute was meant to create an objective standard. The Model Penal Code doesn‘t focus on the amount of time before the actor will be killed. there are additional conditions in order for a valid justification to be constructed. The provision is general. but maybe it wouldn‘t be justified. but rather excused. Wanrow – The jury may ―stand in the shoes‖ of the defendant in assessing whether his or her conduct was justified. The deadly force provision is § 3. But how objective did the legislature intend it to be? Who is that reasonable person? How can it be justifiable to kill an objectively innocent person? We might excuse someone for it. why isn‘t Norman entitled to a self-defense claim? It rests on the meaning of the word ―imminent‖. We‘re talking seconds. if. The intermediate appellate court argued that the emphasis in the phrase ―he reasonably believes‖ is on ―he‖. treats human life very. If the defendant was negligent in believing that a toy gun was actually real. except if you‘re in your own home or you‘re a public officer. as well as common law. What does this case stand for? Does this mean that a woman who uses selfdefense must be judged by the standard of a reasonable woman. that such an act would not be justified. If an actor‘s belief is sincere but reckless or negligent. After this case. the defendant still is acquitted even though what he did was objectively wrong. but rather whether the defendant thought he was doing a reasonable thing. Since that‘s not what we have in Norman. we are looking for an ―affirmative unlawful act reasonably calculated to produce‖ a potentially fatal fight.The “aggressor” issue You can‘t use deadly force in self-defense if you‘re the aggressor at the time of the conflict. this term means ―just about right now‖. on the other hand.

That‘s what Dudley and Stephens did with Parker: they used him as a means to an end. and (4) choice (personhood). Someone else might believe that they can convince a jury that they are undeterrable. in a utilitarian view. The drafters of the Model Penal Code § 3. Excuse Excuse focuses on the actor. (3) The harm caused must not have been disproportionate to the harm avoided. Therefore. but there was something about the actor such that we‘re willing to let them go without punishment. not the act. In the Model Penal Code. Our theories of excuse are: (1) Utilitarian theories. then we want to let the offender off the hook. Excuse law is now explained almost exclusively by some sort of retributive theory rather than utilitarian theory. Dudley and Stephens – This is the single most important case in Anglo-American jurisprudence to deal with the following question: is it ever justifiable to kill an innocent person in order to save a greater number of innocent persons? The court suggests that sometimes the law has to set up standards that we can‘t really live up to. Excuse concedes that the act was bad. A defendant must actually believe that his conduct is necessary to avert a greater evil (and not an equal or lesser evil). There may still be some utilitarian value in punishing an undeterrable person due to specific deterrence or incapacitation. (2) causation. Most jurisdictions treat it in this way. Retributivists say that we have excuses because we don‘t want to blame those who were not responsible for their actions. (2) There must have been no adequate alternative. Duress Duress is an excuse and not a justification. the Model Penal Code allows conviction for a lesser crime in the third case. When we use an excuse defense. This is kind of a belt to keep the legislature‘s pants from falling down in exceptional situations. duress is no excuse for murder. Contento-Pachon – There are three elements of the duress defense. Generally speaking. there is no murder exception. It would be irrational to want people to obey the law if we believed that the legislature in a certain situation would say ―do break the law‖ because that would result in a better outcome for society than obeying the law. according to the court: (1) immediacy of the threat. It is a matter of justice to excuse certain people even though they have caused some social harm. we want people to break it. however. If the legislature would have said ―Yes. Bentham says that an excuse is a defense when their conduct was nondeterrable. it can also be viewed in non-utilitarian terms by comparing the moral value of one choice of action against another. not guilty in the second case.What the Model Penal Code does that is dramatically different from common law is that it doesn‘t like the ―all-or-nothing‖ proposition. say there are some people who are genuinely undeterrable. the burden of proof is placed on the defendant. If obeying the law involves greater harm to society than breaking the law. What about the general deterrence value in punishing an undeterrable person? If we excuse an undeterrable person. but fully guilty in the third case. Although necessity (or the ―choice of evils‖ justification defense) is typically thought of as a utilitarian justification because of its balancing aspect. The necessity defense doesn‘t help you if you recklessly or negligently created the necessity. someone else might get the wrong message. On the other hand. The only use for punishment. (2) wellgrounded fear of the threat. break the law in this case‖. To blame someone who is not responsible for his actions is a falsehood. violating what Kant would say is a categorical imperative. if there is no value to punishment and only a net social cost. If you‘re a Kantian. they may be less likely to obey the law because they will perceive it as full of holes. the defendant is not guilty in the first case. Nelson v. Can we punish someone when we all would have done the same thing? If you‘re a retributivist. That‘s the very definition of necessity.02 thought the necessity defense was essential because we want to encourage sort of ―efficient breach‖ of the law. In the three situations above. However. The Queen v. State – There‘s a balancing test here between the harm actually caused and the harm averted by the act. you believe that you must never use a person as a means to an end rather than as an end in itself. Necessity Three elements are required in order to show necessity: (1) The act charged must have been done to prevent a significant evil. and (3) lack of escapability from the threat. is deterrence. Even the utilitarian argument has a retributivist aspect to it. (3) character. . At common law. we shouldn‘t punish. United States v. then it is never right to kill an innocent person in order to save a greater number of innocent lives.

01. You would go straight to manslaughter based on the fact that the homicide was committed under ―extreme emotional distress‖. The traditional hypo for the first prong of M’Naghten is that you‘re insane if you think you‘re squeezing an orange when you‘re really squeezing someone‘s neck. . you could do a lot of things other than kill. Very few states recognize diminished capacity. But you can‘t be insane without a mental illness. they‘ll be let off if they wouldn‘t have done the act but for their mental disease. The Model Penal Code definition of duress is revolutionary compared to the common law. not just extreme emotional disturbance. but also are not fully responsible for their actions. Only humans can do unlawful things. a ―kill or be killed‖ threat could work as an excuse: there is no murder exclusion. Courts recognize that there are some people who are not insane. But this isn‘t a heat of passion case. Also. The Model Penal Code. but to proof the lack of a certain mens rea necessary for to prove a crime. Anderson‘s point is that if you give a defense for killings caused by adequate provocation leading to anger leading to the intent to kill. People v. On the other hand. § 4. then it follows that you should give a similar defense with fear in the place of anger. although they wouldn‘t use duress to get there and they wouldn‘t use the ―heat of passion‖ excuse. under the category of necessity. The Model Penal Code would actually agree with Anderson. it is a ―person of reasonable firmness‖ standard. Dressler seems to argue for just such a partial defense. What‘s different about the Model Penal Code provision on duress than the common law? In the Model Penal Code. It‘s a case of partial diminished capacity rather than total loss of capacity. Adequate provocation makes someone angry which makes them intentionally kill. § 2. It says that even if § 3. It‘s an objective rather than a subjective standard.02 applies.02: the threat listed is ―unlawful force‖. under the Model Penal Code. A person can be mentally ill without being insane. When you‘re angry. The court also says that a necessity defense suggests that there was no social harm on balance. To the extent that a M’Naghten jurisdiction uses the moral right from wrong test. the defendant‘s belief about whether he did right or wrong is not the standard. Some intentional killings. It‘s different from the common law definition in many different ways.02 reminds us that medical or psychiatric evidence can be used not only to prove insanity.Another way of describing duress as an excuse is that a person will be acquitted of any crime other than murder if: (1) the coercer issues an unlawful threat to imminently kill or grievously injure the defendant or another person. Manslaughter. under the Model Penal Code. there need not be an imminent threat. or if you didn‘t know right from wrong when you did what you did. then Bundy is not insane under that prong of the test. The Model Penal Code is well aware of this. does recognize this concept. On the other hand. when all of the elements of the crime have been proven. The M’Naghten test: You‘re insane if you didn‘t know the nature and quality of your actions. if they are the result of provocation. Finally. The court therefore implies that necessity is a justification rather than an excuse. or (2) to conform your conduct to the dictates of the law. In other words. Insanity There must be some kind of mental illness in order for the insanity defense to kick in. However. covers extreme mental disturbance. M’Naghten + ―irresistible impulse‖ or control test Model Penal Code test: You are not responsible for your conduct if your mental disease causes you to lack the substantial capacity (1) to appreciate the criminality or wrongfulness of your conduct. some courts will reduce the offense from murder to manslaughter on the grounds that a person should be found to be partially responsible for the homicide. duress was not a defense to murder. It‘s a lot harder to control yourself when you‘re very angry. Any state that recognizes ―EMED‖ implicitly recognizes the diminished capacity doctrine. Durham (product test) – A person shall be excused if their unlawful act was the product of a mental disease. Model Penal Code § 4. the Model Penal Code would allow either natural or human threats. In a Model Penal Code jurisdiction. There is a limit to duress under Model Penal Code § 3. You could vent your anger in some other way. Why couldn‘t you have fear in place of anger in ―heat of passion‖? Fear is an emotion that is like anger in that it makes self-control more difficult. The Model Penal Code necessity defense allows the intentional killing of an innocent person to save a greater number of lives. however. our self-control is undermined. and (2) the defendant was not at fault in exposing himself to the threat. Anderson – At common law. There are two models of diminished capacity: (1) the mens rea model and (2) the partial responsibility model. But we don‘t think one‘s self-control isfully undermined by anger. reduce murder to manslaughter.09 may still apply if you‘re dealing with a human threat. you could have a complete defense. The Model Penal Code is like the common law in the fact that it limits the defense of duress to human threats. the court says that duress suggests there was no culpability. When we‘ve very angry. We may be able to empathize more with fear than with anger. But most states have abolished the ―partial responsibility‖ version of the diminished capacity doctrine. The question for the psychiatrists and the jury is: Did Bundy know that society thought what he did was morally wrong? If the answer is yes.

then the person may be excused.“Rotten Social Background” (RSB) Defense Some think that these three things must be true in order to convict: (1) The defendant committed an act that is condemnable. Everything that you‘re responsible for is caused by something else. Attempt This is a tool that law enforcement can use to prevent crime. The ―free choice‖ theory narrows the focus to the particular moment when the offense was done. you shoot someone but they don‘t die). How would we explain this excuse in terms of the excuse theories we have previously discussed? Delgado would say RSB is a causation excuse. Then you would get a utilitarian argument for the defense: if we excuse people with rotten social backgrounds. and conspiracy can be very thin. conspiracy is agreement between two or more persons to commit an unlawful act. In anincomplete attempt. the offender gets stopped short from completing the attempt. You can ask someone to help you kill someone. So if we have someone stalking an individual or pointing a gun at someone. It‘s a one-person crime! It comes even earlier than conspiracy! If the other person says no when you ask them to help you commit a crime. and to conspire. be relevant in determining a person‘s culpability for a crime? State v. In a complete attempt. On the other hand. What are the problems with the rotten social background defense? It is suggested that the defense is ―infinitely expandable‖. What about RSB as a partial excuse? If you steal something though you can afford to buy it. Kargar – If the admittedly criminal conduct was not envisioned by the legislature when it defined the crime. With causation. it‘s solicitation. (3) Society stands in relation to the defendant such that it is entitled to condemn him. it‘s conspiracy! The line between thought. Inchoate offenses Consider the range of conduct: (1) Someone thinks about committing a crime (we don‘t punish this). . It‘s not an act! Before you‘ve done anythingtowards committing the actual crime. In the long run. if we‘re utilitarian. There‘s one view of retributivism that says that people have a ―right to be punished‖. If you take away that right. robbed. If they say yes. that‘s a case of failed (attempted) solicitation. note that at common law. and if they never get the message. on the other hand. Cultural defenses To what extent should a person‘s culture. We don‘t want people murdered. Some say that people with a bad upbringing may be undeserving of condemnation because they don‘t satisfy either #2 or #3 above. (4) Someone attempts a crime. so we would have results that don‘t seem to conform to our notions of fairness. It takes two to tango. Also. Conspiracy and solicitation At common law. the offender does everything necessary to complete the crime but they fail (e. It also creates the incentive for other similarly situated to argue that they are similarly situated and make a claim for a rotten social background defense. what will the effect be on society? We must say that the dangerous person goes back on the street. you ―dehumanize‖ people. ―Did the person have both the capacity and fair opportunity (to apply the three prongs of the standard)?‖ If not. or raped. This is also known as the ―social environmental‖ defense. Only asking someone to do it himself is solicitation! Double and triple inchoate offenses bring us closer and closer to punishing thought. you could be found guilty of conspiracy.g. Dressler would argue that the ―free choice‖ theory of excuse is the narrowest of the three non-utilitarian theories. If we allow an excuse for the defendant based on RSB. Attempt. (5) Someone completes a crime. Delgado would say that being poor caused people to commit a crime. (2) Someone solicits a crime. Solicitation is the act of asking someone else to commit a crime. asking someone to help you commit a crime is not solicitation. (3) Someoneconspires to commit a crime. The causation theory is the broadest of all the excuse theories. will take somewhat more time to materialize. maybe the social harm is greater than if you couldn‘t afford to buy it. (2) The defendant can be condemned personally insofar as the defendant could have behaved in conformity to law. causation theory can excuse all criminal conduct. we want to give law enforcement a way to stop potential criminals in the act. you keep looking backwards more and more. it might not be punishable under thede minimis statute. In fact. solicitation. such that it‘s different from American culture. we actually want to reduce the rotten social background that causes the crime rather than merely eliminate the crime. then we may give society an incentive to eliminate the conditions that lead to such backgrounds.

Probable desistence test – The actor has committed an attempt if they reached a point where it‘s unlikely . or state interest. but you still have an incentive to stop early. Actus reus of attempt How far do you have to do from thought to completion in order to have an attempt? In general. The wife probably perjured herself at trial. maybe there should be no punishment. not knowledge. which [is] deemed socially valuable. The Model Penal Code gives us an answer by having the word ―belief‖ in there. shouldn‘t there be less of a penalty? That‘s almost exclusively a utilitarian argument. group.01(1)(c) and § 5. McQuirter v. you will not be guilty of attempted murder or attempted manslaughter. use § 5. An objectivist who focuses on harm will likely say ―less punishment for less harm‖. they give a benefit to the attempter by reducing the grade of the crime. use § 5. but they just got lucky (or unlucky). That person might be dangerous. Retributivists are concerned with having you ―pay your debt to society‖. Recall one definition of social harm: ―[N]egation. We might say that they are as culpable as the actual offender. It seems highly unlikely that the events unfolded the way they did. you may still be deterred.‖ There‘s also a utilitarian argument for punishing attempt less than a completed offense: marginal deterrence.01(1)(a). use § 5. where‘s the harm? If there‘s no harm. A subjectivist is focused on what the person has in mind. Tests for attempt Last act test – A criminal attempt only occurs when the actor has performed all the acts they believe are necessary to commit the target offense. the mens rea of attempt is the intent to do the act that constitutes the attempt and the intent that the underlying offense be committed. complete attempts may be subject to general deterrence. we can parse this crime as ―attempt to attempt a battery with intent to rape‖.01(1)(a) or (b). But there are two kinds of retributivists: ―harm‖ retributivists and ―culpability‖ retributivists. Attempt always requires intent. X but I fail. The exception is murder or first-degree felonies. We have a split. They say he basically acted purposely.01(1)(b). Objectivism versus subjectivism An objectivist doesn‘t look inside the head of the offender and doesn‘t punish unless and until you can find objectively that there‘s harm. If you‘re dealing with an incomplete attempt. attempt to commit a felony is a felony. inchoate laws themselves create a problem: where‘s the harm? If I try to kill Mr. or destruction of an individual. there‘s an attempt when someone takes a substantial step towards the commission of an offense with the intent to commit that offense. To a retributivist. If you‘re dealing with a conduct offense. Even if the underlying crime doesn‘t require intent (like extreme reckless murder). what we really mean is purpose. For the most serious crimes. Physical proximity test – To be guilty of attempt. the attempt does require intent. Today. So. A subjectivist will say ―equal punishment for equal culpability‖. preventive law enforcement can‘t explain why we have inchoate offenses for complete attempt. It requires the specific intent to have some future act happen. the actor‘s conduct must be so near to the completed offense that it would result in that offense actually happening if the actor wasn‘t hindered by outside circumstances. Finally. at common law. State – McQuirter was arrested for ―attempt to commit an assault with intent to rape‖. Attempt is a specific intent crime. At common law. Utilitarians are concerned with what will happen in the future. Dangerous proximity test – This is Holmes‘s test: there‘s no attempt unless the ―danger of success‖ is very great. If you‘re dealing with a completed attempt. At common law. Dressler says general deterrence is not an argument for inchoate offenses. Gentry – This looks a lot like a battered wife case. Many jurisdictions say that when you use the common law definition of attempt. People v. no matter what the ―target‖ offense was. Also. use § 5. was an attempted battery. This is a triple inchoate crime! What about the social harm? If there was less harm. this was a misdemeanor.01(2). If you‘re dealing with a result crime. ―Culpability‖ retributivists would say that we should punish attempt and completed offense equally. expressed through their statements or their conduct. Model Penal Code is subjectivist and generally treats attempted crimes as severely as completed crimes. Some jurisdictions say that intent means purpose or knowledge. If you‘re starting to attempt a crime. Indispensable element test – There is no attempt if the actor has not obtained some indispensable feature of the criminal plan. the person who failed this time might succeed next time. So if you fire a gun at someone intending to scare them but not to kill them and you miss. endangering. Assault.However.

all of these tests and more are out there and may be considered. would not constitute a crime. Defenses to attempt People v. there must be a problem with the law. most of the cases of so-called legal impossibility involve this kind of ―hybrid‖ situation. The categories (a) through (g) are only for the judge. The charge is attempted distribution of obscene material to a minor. Just as ignorance of the law is no excuse. while a subjectivist would accept the defense. Utilitarians would say we should abolish this defense because we want to take dangerous. The jury only hears the ―substantial step‖ language. like New York. Therefore.01(2)(a) through (g) are present. There are a few states that really actually apply a particular common law test. However.01(2).that they would have ―voluntarily desisted from his effort to commit the crime‖. but even if it weren‘t. even if there is a lot more to be done. Usually. In most states. Unequivocality (res ipsa loquitur) test – An act isn‘t an attempt until it ceases to be equivocal. On the other hand. State v. The common law tends to be objectivist. ignorance of the law doesn‘t make a crime.01(1)(c) because this was an incomplete attempt. here is a good definition of legal versus factual impossibility: Legal impossibility occurs when the actions which the defendant performs or sets in motion. That is. Jaffe – The Jaffe court said that Jaffe‘s act wouldn‘t have been a crime if it had been completed. we wouldn‘t otherwise punish someone for receiving non-stolen property. but you just don‘t understand the law. while the Model Penal Code tends to be subjectivist. Because they are hybrid and because you can make a plausible legal argument to suggest that it‘s factual impossibility. factual impossibility is no defense. there is a defense of ―renunciation‖. In a Model Penal Code jurisdiction. the individual was not really a minor. even if fully carried out as he desires. Pure legal impossibility means ―pure mistake of law‖. In § 5. you can convict. it just means that it‘s not legally permissible for a judge to hold that it‘s not legally sufficient. From the defendant‘s perspective. Thousand – The defendant is charged with attempting to send pornography to an underage female when in fact he sent pornography to an overage male. The Model Penal Code is strongly distinguished from the common law in that most of the common law tests look back to see how close the defendant has come to completion. You must freely and completely give up your plan. a jurisdiction will use multiple versions of these tests. Reeves – Look at § 5. But even in some non-Model Penal Code states. if any of these factors are present. there are a bunch of things that are examples of things that may be sufficient to corroborate the actor‘s criminal purpose. their law may be interpreted to eliminate this defense. you are no longer dangerous or culpable. Factual impossibility versus legal impossibility In traditional common law. an objectivist might say that you‘re punishing thoughts. most jurisdictions that follow the common law don‘t follow one particular test. If you‘re an objectivist. The pure version of legal impossibility remains a defense in the Model Penal Code. which is not a defense at common law. We don‘t want to punish innocent people. If you have truly renounced your dangerous intentions. We don‘t want to find attempt too close to the mere ―thinking‖ stage because that would be unjust. If the defendant has taken a substantial step towards committing the crime. With only a few exceptions. The Model Penal Code test asks how far the defendant has gone from the thought process. To put it another way. For the purposes of the exam and for purposes of being a lawyer in a non-Model Penal Code jurisdiction. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective. The Model Penal Code clearly does away with one aspect of the impossibility defense. They are not read to the jury. but we don‘t want to find attempt to close to the ―completion‖ stage because we want a shot at preventing the criminal conduct. the case should go to a jury and it would be wrong to direct a verdict of acquittal for a defendant if they meet one of those categories and it‘s strongly corroborative of criminal conduct. which is a defense at common law. You will be guilty if you do a ―substantial step‖ towards the commission of the crime. morally culpable people off the streets. it‘s much easier to convict under the Model Penal Code than at common law. But if any of the categories § 5. At common law. The poison in the purse is presumably strongly corroborative. . and you can also make an argument that it‘s legal impossibility. so it‘s impossible for the defendant to have committed the crime. Everything is exactly factually the way you think it is. The court punts on this distinction because they claim that neither impossibility defense exists anymore in Michigan due to statute. The Model Penal Code has its own test. you must be familiar with all the tests. This is an objectivist test. the legality principle would require us to reach the same result. what is your position? Should we recognize a defense of genuine abandonment of the criminal plan? The objectivist would reject the defense. The Jaffe explanation is a traditional way to explain legal impossibility. Thousand claims legal impossibility. so you would use that test in a Model Penal Code jurisdiction. while legal impossibility is a defense.

But if the crime is a crime of recklessness. State v. then you could also be held liable under conspiratorial liability and vice versa. that is. at least for serious crimes. Sometimes you can infer purpose from knowledge. you will find that courts even today will talk about defendants using those terms. or failing to carry out a legal duty. If you‘ve given your friends a psychological boost by promising to help them…that‘s encouragement. MPC § 2. then you can infer that the Bee wants them to succeed in prostitution. but you usually need something extra in order to draw the inference. What makes someone an accomplice? You need the mens rea of purpose. and (2) conspiratorial liability. the defendant may be convicted as a principal in the second degree (someone who helped out at the actual time of the crime). To understand what they‘re talking about. the defendant isn‘t an accomplice. except for crimes of intent. Many jurisdictions say only purpose will do. or you‘ve made an omission when you should have done something. Lauria – To establish the mens rea necessary to convict a supplier of conspiracy. For a very long time. maybe we should be able to punish people simply on the basis of knowledge and not purpose. In this case. but what is really required for the crime is simply that the person have the mens rea required for the commission of the offense. If the crime has a mens rea of intent. the attempt makes him guilty as an accomplice. But not always. The ―second intent‖ is a misnomer. then at common law. We‘ll hold them guilty of ―obstruction of justice‖ or ―misprision of a felony‖. You‘ll be liable as an accomplice if: (1) The person gave helped out in the crime. (2) This is dicta: but the possibility is suggested that for really serious crimes. or if you‘re legally accountable for the person who did do it. Even though you can‘t attempt or conspire to commit an offense that doesn‘t require intent. Is there enough evidence to convict the defendant of entering with intent to commit larceny? If the State can show that the defendant was a lookout. think about actusreus first: how did the defendant aid? Then go to the mens rea. The agreement to aid is a mens rea of accomplice liability in the Model Penal Code. Foster – Accessorial liability for criminally negligent homicide requires the same level of culpability as the underlying offense. The mens rea is: intent to aid and intent that your assistance result in the commission of the offense. State v. Did the defendant intend to do that act? Did the defendant also intend that the act result in the commission of an offense? You can be found guilty if you did it. Most of the time. It‘s kind of like the common law so far. But when are you legally accountable? There are three circumstances. That sort of person who is described as an accessory after the fact today is not deemed to be guilty of the crime for which they were accessory after the fact. The Model Penal Code requires purpose. Under the Model Penal Code. or (2) the person had the intent to promote or facilitate the commission of the crime. they might have a stake in the venture. Accomplice liability and conspiratorial liability overlap 99%. This case teaches us two important things: (1) Sometimes you can infer purpose from knowledge.06(2)(c) involves accomplice liability. Mens rea of accomplice liability People v. you can be an accessory to such an offense. The common law is deeply divided. But even though that‘s true and some of the distinctions between the terms have disappeared. technical common law rules that existed way back when. If there‘s no prearrangement. and thus no encouragement. you need either direct evidence that he plans to participate in the criminal activity of another or you need to be able to draw an inference that he has a special interest in the activity or show that the crime is of an aggravated nature. So the actus reus is: you‘ve acted. If the Sacramento Bee charges prostitutes more to advertise than others. if you could be held liable under accomplice liability. aiding. Mere prearrangement can give you both the mens rea and the actus reus at common law. an accessory after the fact is no longer part of this analysis. Virtually no state today follows the odd. . then the ―second intent‖ would be intent. Whenever you think about accomplice liability. you‘ve encouraged. they don‘t get the benefit of the encouragement. There are a few cases where someone is one but not the other. but we only need to worry about two of them. Some jurisdictions are willing to punish on the basis of mere knowledge. we still need to prove the first intent. and the actus reus of solicitation. If the assistance isn‘t prearranged. you need to refer to the original common law definitions. negligence.Complicity There are two kinds of complicity: (1) Accomplice liability. For example. Hoselton – The only evidence that showed that the defendant was an accomplice was his statement during questioning that ―you could say that‖ he was a ―lookout‖. the mens rea required would be recklessness. The common law terms were make-or-break distinctions for prosecutors at common law. and the attempt to aid fails.

if Crime #2 was also committed. (c) The primary person committed another crime. basically: was the defendant an accomplice of this other person as to Crime #1? In this case. they should be acquitted of that offense. Linscott – To convict under the ―foreseeable consequence‖ rule. (d) That other crime was a ―foreseeable consequence‖ of the primary crime. why should an accomplice to murder get life in prison? In the last case. However. he had the proper intent. 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. This is the Learned Hand formula. If we‘re willing to convict Cannon on the basis of criminal negligence. If the defendant doesn‘t have that kind of culpability.06 as a three-step question: (1) What conduct caused the result? (2) Was the defendant an accomplice in the conduct that caused the result? (3) If yes. That makes a somewhat stronger argument that they are more than just physically proximate to each other. (b) The secondary person helped the primary person commit that crime. a person who was an accomplice in Crime #1 will also be deemed an accomplice of Crime #2 if Crime #2 was a natural and probable consequence of Crime #1. Mere physical presence at the scene of the crime cannot. presence can frequently get us closer to the point where we can say that someone has assisted.06(3). If we want to find out whether someone is an accomplice in the commission of an offense.06(4) deals with result crimes: (4) When causing a particular result is an element of an offense. the court said that commensurability is the key. Why don‘t we follow this principle in this case? It appears that Linscott was only negligent as to the victim‘s death. To understand how this doctrine works. If the legislature has decided that people should be punished for criminally negligently killing people. with respect to that result that is sufficient for the commission of the offense. If the perpetrator of a negligent homicide would get. you must find: (a) The primary person did the primary crime. Look at § 2. Presence State v. unarguably. § 2. the defendant came to the house with the primary defendant. then people who help them should be judged and punished just the same. Why should we be willing to punish an accomplice based on a lesser mens rea than that of the primary offender? “Natural and probable consequences” doctrine A majority of jurisdictions follow the ―natural and probable consequences‖ doctrine. You have to assist. This basically means the same thing as ―foreseeable consequences‖ which more or less means the same thing as negligence. and it results in a big difference in the potential penalty. we go back to § 2. say. and you have to have a mens rea. you can argue that you weren‘t an accomplice. make someone an accomplice. did the defendant have the level of culpability regarding the result. you‘re convicting him without proving each element of the crime beyond a reasonable doubt.What‘s the policy argument for stating accomplice liability in this way? The court asks why we would require a higher mens rea for the accomplice than we do for the principal. Linscott was. What is Linscott‘s constitutional argument? He says that if you convict him with intentional murder without showing that he possessed the mens rea of intent. but actually came there together. as stated in the definition of the offense? If you don‘t solicit the thing that caused the result. more or less. why should we require a higher mens rea for Foster? This seems like a sensible policy argument. Foreseeable consequences doctrine State v. He assisted the robbery. Once you do that. The difference between intent murder and negligent homicide is the defendant‘s culpability. by that mere fact alone. you first ask the question. if any. an accomplice in the robbery. What makes a risk unjustifiable? It‘s product of the gravity and the risk of the harm. That suggests that they didn‘t just happen to be there at the same time. What goes on the other side of the balance? It‘s her purpose in encouraging the cab driver to speed. he should be convicted of robbery. Vaillancourt – What‘s the argument by the prosecutor for indicting the defendant? What exists in the case that justifies treating him as an accomplice? Vaillancourt was talking to the primary offender. So an accomplice in the conduct becomes an accomplice in the offensive if they act with the kind of culpability with respect to that result that is sufficient for that offense. Note that the Model Penal Code rejects the ―natural and probable consequences‖ doctrine. So what‘s the extrasomething you have to have in order to be an accomplice? . Also. 5 years in prison. He meets all the normal criteria of being an accomplice to the robbery.

Has the Model Penal Code rejected the derivative liability concept? How can Genoa be guilty of a crime that was never occurred or attempted? How can we explain the result without getting rid of derivative liability? In common law terminology.06 had a crime been committed? If the answer is yes.01(3) with solicitation and not just aid? In § 2. He didn‘t have a legal duty to stop his friend from raping a girl. So. Since the cop committed no crime. a crime continues and therefore anyone who helps at any time is an accomplice. If they have a duty to stop a crime.01(3) shows this clearly: (3) Conduct Designed to Aid Another in Commission of a Crime. Prosecutors love accomplice liability. From the objectivist way of looking at it. What about the cheering customers? Could you get them for encouragement? What if the rapists were deaf? Would that make a difference? Does this make any sense? How do we explain Wilcox? How can Wilcox be deemed an accomplice while none of the other thousands of people at the auditorium are found to be accomplices? If Wilcox had booed. Genoa is an accessory before the fact. He gets arrested and charged with ―attempted possession with intent to deliver cocaine‖. he was an accomplice to the crime of attempted possession with intent to deliver. Let‘s avoid the impossibility doctrine! Why does Genoa get off the hook? The crime never really took place. § 5. every second Hawkins is in the country illegally. of the cheering customers. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2. What would be the result in Genoa under the Model Penal Code? I think Genoa would be guilty.06 if the crime were committed by such other person. apparently he would have been off the hook.Wilcox v. it would seem that the crime has already occurred. ―Just tell me what to say. that‘s what accomplice liability is all about. But hadn‘t the crime already happened? The crime started when Hawkins entered the country without the appropriate documentation. or more properly. Then the accomplice has the incentive to say. “Innocent instrumentality” doctrine . if any. and the bartender? Does the bartender have a legal duty to act to prevent the rape? The bartender would seem to be responsible to protect his customers. Genoa – What was Genoa prosecuted for. I‘ll buy and sell the cocaine and give you a profit. Wilcox didn‘t assist in getting him into the country illegally.‖ Accomplices have their own reasons to lie or make it look like the other guy did more than him.01(3) seems to deal only withaid and not solicitation. The Model Penal Code says that Genoa would be guilty as the perpetrator. There‘s another problem here. solicitation is in a different subcategory from aiding. Can we get the non-cheering customers for rape? Based on what we‘ve learned. is guilty of an attempt to commit the crime. There must be somethingover there we can connect our accomplice to. But maybe Genoa is the principle in the first degree. People v. Since this is a business and the victim was a customer. He‘s guilty of the crime of attempting to aid in the possession with intent to deliver cocaine. Let‘s assume that Wilcox is the only person who encouraged Hawkins and specifically encouraged him to break the law. From the Model Penal Code‘s subjectivist point of view. But by the time of the concert. there‘s nothing to get the accomplice for.06. the prosecution will go after the little guy and try to get them to cheese them out. Genoa is just as culpable and dangerous as someone who completed a crime. What‘s up? The prosecutor‘s theory is that Genoa was an accomplice to the crime of possession with intent to deliver. but it‘s not a legal duty under the criminal law. he owes a legal duty to her. there is no social harm and Genoa should be let off. no problem really. you could still be guilty of solicitation to commit a crime. That is. which is usually as serious as the completed crime anyway. Jeffery – Regarding the rapes…what is the liability.‖ Genoa got the money and gave it to the cop. all of us have a duty to stop any crime that occurs in our presence. Can we do § 5. they don‘t have a duty to prevent the crime. Many jurisdictions say there must be something to confirm the testimony of an accomplice. then you can be guilty not as an accomplice but as the perpetrator of the attempt. non-cheering customers. Genoa becomes the principal in the first degree of the attempt. The cop says: ―Give me $10.000. Under the Model Penal Code. That may be a moral duty. Think of Jeffrey Strohmeyer. and I‘ll say it. The accomplice has an ulterior reason to testify against his fellow accomplices. In multi-party crimes. If the social harm of the crime or of the attempt hasn‘t happened. Is this a glitch? Is this inconsistent? Well. § 5. Doesn‘t really matter. which would suggest we‘re getting rid of derivative liability. Dressler assumes that this isn‘t being discussed because this crime is viewed as a continuing crime. Helmenstein – You can‘t convict in North Dakota on the testimony of an accomplice unless that testimony is corroborated by a nonaccomplice. we ask: would this person have been an accomplice under § 2. and why did the court throw out the conviction? A Michigan police officer tried to get Genoainvolved in a purported scheme to buy cocaine. But Genoa never wanted to possess cocaine. although the crime is not committed or attempted by such other person. State v. and at common law you need to derive your liability from some underlying crime. there is no crime to be an accomplice to.

These days. There are two ways we‘ve looked at where you can be held responsible for the conduct of another: you can be an accomplice. attempting to aid and abet a burglary.06(2)(a) gets us there. Hayes – Why is it that Hill is not guilty of the burglary and larceny charges for which the government has charged Hayes? Hill has no mens rea. there‘s usually a way to convict a person of a crime if you are creative enough. How would this case be decided under the Model Penal Code? § 2. since Hill didn‘t commit a crime. In the Lopez case. What could we get Hayes for under the Model Penal Code given these events? We could get him for solicitation. with penal codes that get thicker and thicker and thicker. . McIntosh would be convicted as an accomplice of a crime that occurred but is ―invisible‖ to us because we‘re letting her off on the grounds of duress. then we won‘t excuse him because his life wasn‘t at risk. We‘re just letting her off because of her excuse. then McIntosh becomes the accomplice in a justified act. Irresponsible more or less means insane. Bailey is a principal in the first degree by the ―innocent instrumentality‖ doctrine. or you can cause an innocent person to carry out your evil deeds for you.Bailey v. But we‘re not interested in her. Commonwealth – Must Bailey have shared a goal with the police officers in order to be a principal in the first degree? ―[O]ne who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. If what Lopez did was excusable. We could convict him of attempted burglary…really. State v. We will say that something bad has happened that someone must pay for. Justifications are ―universal‖ and excuses are ―personal‖. Duress is an excuse. § 2.06(1) says that you can be held responsible for a crime based on your own conduct. McIntosh shouldn‘t be able to benefit from her insanity. We can also get him for larceny at common law or under the Model Penal Code. Lopez – ―Intolerable prison condition‖ claims: a person escapes prison and tries to avoid conviction for the break based on the conditions in the prison. He wasn‘t an accessory before the fact because he didn‘t do any preplanning with the officers. We can‘t get Hayes on the innocent instrumentality doctrine. Necessity is balancing evils from a societal perspective. If we believe that Lopez‘s leaving the prison was justified. something we think is good notbad. She intended to escape. It makes sense if the prison is on fire to try to escape because it‘s necessity. because Hill manipulated Hayes rather than vice versa. Innocent means someone who would lack the mens rea for the crime or would be excused from the crime. United States v. necessity is a justification. He was just trying to trap Hayes. that is. This has some relevance to Lopez. we‘re interested in McIntosh. But there‘s also something that we can get him for. McIntosh is not using Lopez as an instrumentality.‖ Bailey is not a principal in the second degree because he wasn‘t at the scene of the crime. Hayes gets off because there‘s no liability to derive from. It definitely matters to him whether Lopez‘s defense is characterized by justification or excuse. He had no intent to commit either crime. Or suppose Lopez escapes but is not liable because she‘s insane.

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