Capsule Summary of Criminal Law

PART ONE: INTRODUCTORY PRINCIPLES

I. 5 Types of Legal Argument
A. Text (Textualists)
1. Promotes certain values i.e. clarity and predictability
2. 3 types
a. Plain meaning
b. Cannons of construction (Latin terms)
c. Structural analysis
B. Intent (Originalism)
1. Intent of individuals who created text at the time they were
making text
2. Popular wheel/image at time text written
C. Precedent
1. Holdings of appellate courts setting what law is
2. Stare decisis consistency and stability of law, predict
future outcomes of similar cases
D. Tradition (History)
1. Historical evidence
2. Promotes value of social cohesion
E. Policy
1. Underlying values that law is supposed to promote (spirit of
law)
2. Forward looking
3. Concerned with justice
4. Predictive in nature : bad consequences if do x, good
consequences if do y
5. Think about adaptability of evolving society
II. CRIMINAL LAW OVERVIEW
A. Criminal versus Civil
1. The Essence of the Criminal Law
a. A crime is (or, at least should be) limited to conduct
that, if duly shown to have taken place, will
incur a formal and solemn pronouncement of the
moral condemnation of the community.
i. This moral condemnation from the community is
what distinguishes criminal law from civil law
sanctions
b. The current system of criminal law consists of:
legislatively defined crimes enforced by executive (arm
of the executive)
B. Sources of the Criminal Law
1. Common Law: Common law is judge-made law. For the
most part, British common law became American common
law.
 2. Statutes: Today, all criminal lawyers in this country turn
first to a bookoften characterized as a penal codethat
contains legislatively-drafted definitions of crimes,
defenses to crimes, and other relevant doctrines of
criminal law, which apply in that lawyers jurisdiction.
3. Model Penal Code: (typically abbreviated as MPC) is a
code created in the 1950s and adopted in 1962 by the
American Law Institute, a prestigious organization
composed of top judges, scholars, and law- yers. Portions
of the MPC have become law in many states.
C. Limits on the Criminal Law
1. State and federal legislation is subject to the strictures of
the United States Constitution (and, with state laws, the
constitution of the relevant state). Some of these strictures
are discussed throughout this Outline.
D. Burden of Proof: Basics
1. A basic American principle of criminal law is that a
defendant is presumed innocent. The Due Process Clauses
of the Fifth and Fourteenth Amendments of the
Constitution require that, to convict a defendant, the
government must persuade the factfinder beyond a
reasonable doubt of every fact necessary to constitute the
crime charged.
E. Judge versus Jury
1. Constitutional Law: The Sixth Amendment to the United
States Constitution provides that in all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury. Despite the phrase
in all criminal prosecutions, the Supreme Court has
generally limited the potential punishment exceeds
incarceration of six months.
2. Jury Nullification: Jury nullification occurs when the jury
decides that the prosecution has proven its case beyond a
reasonable doubt, but for reasons of conscience it
disregards the facts and/or the law and acquits the
defendant. Jurors have the power to nullify, but not the
right to do so. Therefore, a defendant is not entitled to
have the jury instructed that it may nullify the law.
II. TOOLS OF THE CRIMINAL LAW
A. Theories of Punishment
1. Different Theories Two broad theories of punishment exist:
utilitarianism and retribution.
2. Principles of Utilitarianism
a. Augmenting Happiness: Utilitarianism holds that the
general object of all laws is to augment the total happiness
of the community by excluding, as much as possible,
 everything that subtracts from that happiness, i.e., every-
thing that causes mischief (pain).
b. Role of Punishment: Both crime and punishment are
evils because they both result in pain to individuals and to
society as a whole. Therefore, the pain of punishment is
undesirable unless its infliction is likely to prevent a greater
amount of pain in the form of future crime.
c. Forms of Utilitarianism
0 i. General Deterrence: A person is punished in
order to send a message to others (the general society
or, at least, persons who might be contemplating
criminal conduct) that crime does not pay.
1 ii. Specific Deterrence: D is punished in order to
deter D from future criminal activity. This is done
in either of two ways: by incapacitation
(incarceration of D prevents her from
committing additional crimes in the general community for the
duration of her sentence); and/or by intimidation (Ds
punishment serves as a painful reminder,
so that upon release D will be deterred from future
criminal conduct).
iii. Rehabilitation: Advocates of this form of
utilitarianism believe that the criminal law can
prevent future crime by reforming an individual,
by providing her with employment skills,
psychological aid, etc., so that she will not want or need
to commit offenses in the future.
3. Principles of Retribution
a. Just Deserts: Punishment of a wrongdoer is justified as
a deserved response to wrongdoing. Retributivists punish
because of the wrongdoingthe criminal gets his
just desertsregardless of whether such
punishment will deter future crime.
b. Rationale: Wrongdoing creates a moral disequilibrium
in society. The wrong- doer obtains the benefits of the law
(namely, that other people have respected his rights),
but he does not accept the laws burdens (respecting
others rights). Proportional punishment of the wrongdoer
paying his debtbrings him back into moral
equilibrium. Another justification is that both crime and
punishment are forms of communication: one who
commits a crime sends an implicit message to the
victim that the wrongdoers rights are more important
than others rights; punishment is a symbolic way of
showing the criminaland reaffirming for victimsthat this
message was wrong. Punishment proportional to the offense
defeats the offender: it brings him down to his proper
place in relation to others.
B. Proportionality of Punishment
1. General Principle: A general principle of criminal law is that
punishment should be proportional to the offense committed.
2. Utilitarian Meaning: Punishment is proportional if it involves
the infliction of no more pain than necessary to fulfill the laws
deterrent goal of reducing a greater amount of crime.
3. Retributive Meaning: Punishment should be proportional to
the harm caused on the present occasion, taking into consideration
the actors degree of culpability for causing the harm.
4. Constitutional Law: The Eighth Amendment Cruel and
Unusual Punishment Clause prohibits grossly disproportional
punishment.
a. Death Penalty Cases: The Supreme Court has held
that death is grossly disproportional punishment for
the crime of rape, because the latter offense does not
involve the taking of human life.
b. Imprisonment Cases According to the Supreme
Courts most recent pronouncement, there is only a
very narrow proportionality principle outside the context
of the death penalty. The legislature (not the judiciary)
has primary authority in setting punishments. No non-
capital incarcerative punishment will be declared
unconstitutional unless there are objective groundsnot
simply a judges own subjective views of the propriety of
the punishmentfor determining that the punishment is
grossly disproportionate to the crime.
C. Legality
1. Requirement of Previously Defined Conduct
a. General Principle: The so-called principle of legality
is that there can be no crime without (pre-existent)
law, no punishment without (pre-existent) law.
b. Constitutional Law: The principle of legality not only is
a common law doctrine, but has deep constitutional roots.
Legislatures are prohibited by the Ex Post Facto Clause of
the United States Constitution from enacting
laws that would punish conduct that was lawful at the time
of its commission, or that increases the punishment for an
act committed before the law took effect. In turn, courts are
prohibited from enlarging the scope of criminal statutes by
the Due Process Clause.
2. Fair Notice: A corollary of the legality principle is that a
person may not be punished for an offense unless the statute is
sufficiently clear that a person of ordinary intelligence can understand
its meaning. This is a fundamental common law concept, with
constitutional roots as well in the Due Process Clause.
3. Nondiscriminatory Enforcement: Another corollary of the
legality principle is that a criminal statute should not be so broadly
worded that it is susceptible to discriminatory enforcement by law
enforcement officers, thereby unduly expanding government
power.
D. Burden of Proof
1. Burden of Production: This burden relates to the question
of which partythe defendant or the governmenthas the
obligation to first introduce evidence on a given issue. The party with
this obligation, who fails to satisfy this burden, loses on the issue.
In general, the government has the burden of production
regarding elements of a crime; the defendant carries the burden as
to affirmative defenses.
2. Burden of Persuasion: Once the burden of production has
been satisfied, the next question becomes: who has the burden of
persuading the factfinder on the particular issue? The party with
the burden of production need not have the burden of persuasion.
3. Degree of Burden
a. Elements of a Crime: The Due Process Clause of the
Constitution requires that the government carry the
burden of persuasion, beyond a reasonable doubt, as
to every fact necessary to constitute the crime
charged. The Court has limited the word factand, thus, the
prosecutors constitutional obligation to carry
the burden of production beyond a reasonable
doubtto elements of an offense, and not to defenses
and mitigating factors.
b. Defenses to Crimes: A legislature is free to place the
burden of persuasion regarding a criminal law defense on
either partythe defendant or governmentand to set the
burden very high (proof beyond a reasonable doubt),
somewhat high (clear and convincing evidence) or low
(proof by preponderance of the evidence).

PART TWO: ACTUS REUS

I. ACTUS REUS: OVERVIEW
A. Definition: The actus reus of an offense is the physical, or
external, component of a crime what society does not want to occur.
B. Three Ingredients: The Actus Reus of an offense consists of (1)
a voluntary act, (2) that causes; (3) social harm.
C. Thoughts are not punished: Cant tell what people are thinking
and hard to determine difference between daydreaming and fixed
intentions. In a society valuing individual freedom, people need
breathing space to choose to desist from planned wrongful activity.
 1. Voluntary act and social harm must be proven beyond a
reasonable doubt.
D. Two Elements: The actus reus of a crime consists of two
components, both of which must be proved by the prosecutor beyond a
reasonable doubt.
1. Voluntary Act or Legal Omission: Generally speaking,
there can be no crime in the absence of conduct. But, only a certain
type of conduct qualifies, namely, conduct that includes a
voluntary act. In rare circumstances, a person may be prosecuted
because of what he or she did not doan absence of conduct. An
omission substitutes for a voluntary act when the defendant has a
legal duty to act.
2. Social Harm: People are not punished for conduct (or
omissions), but rather for conduct (or omissions) that result in social
harm.
a. Social harm constitutional limits: various constitutional
provisions limit extent to which legislature may properly
prohibit socially harmful conduct, const. rights
might outweigh societys interest in preventing social
harm.
II. VOLUNTARY ACT
A. General Rule: A person is not ordinarily guilty of a criminal offense
unless his conduct includes a voluntary act.
1. Common-Law Definition of Voluntary Act: A voluntary
act is a willed muscular contraction or bodily movement by the
actor. An act is willed if the bodily movement was controlled by
the mind of the actor.
2. Model Penal Code: The MPC does not define voluntary act.
It provides examples of involuntary actions: a reflex or convulsion;
bodily movement while unconscious or asleep; conduct during
hypnosis or as a result of hypnotic suggestion; and/or a bodily
movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
3. Constitutional Law: The Supreme Court has never expressly
held that punishment of an involuntary actor is unconstitutional.
However, it has invalidated statutes that criminalize a status or
condition (being a drug addict or vagrant), rather than conduct.
4. Important Study Point: To be guilty of an offense, it is
sufficient that the persons conduct included a voluntary act. It is
not necessary that all aspects of his conduct be voluntary.
B. Rationale of Voluntary Act Requirement
1. Utilitarian: A person who acts involuntarily cannot be
deterred. Therefore, it is useless to punish the involuntary actor.
It results in pain without the benefit of crime reduction.
***Insufficient because punishment can motivate behavior (if not
deter), ex. Taking seizure medication.
 2. Retribution: A more persuasive justification for the voluntary
act requirement is that blame and punishment presuppose free will:
a person does not deserve to be punished unless she chooses to put
her bad thoughts into action.
C. Crimes of Possession
1. Virtually all states prohibit possession of contraband (blue
meth) or criminal instrumentalities (weapons)
2. These are inchoate or incomplete offenses their real
purpose is to provide the coppers with a basis for arresting those
whom they suspect will later commit a socially injurious act.
3. These crimes do not necessarily dispense with the voluntary
act requirement. Possession statutes are usually interpreted to
require proof that the D knowingly procured or received the
property possessed (thus a voluntary act, if proven), or that she
failed to dispossess herself of the object after she became aware
of its presence. In this latter case, possession is equivalent to
an omission in which the D has a statutory duty to dispossess
herself of the property.
4. MPC 2.01 - For purposes of the voluntary act rule,
possession is an act if the possessor either knowingly obtained
the object possessed or knew she was in control of it for a
sufficient period to have been able to terminate possession.
A. A D would not be guilty of the contraband was planted
on her and she did not have sufficient time to terminate her
possession after she learned of its presence.
5. EXCEPTION ON 101 HB
III. OMISSIONS
A. General Rule: Ordinarily, a person is not guilty of a crime for
failing to act, even if such failure permits harm to occur to another, and
even if the person could act at no risk to personal safety.
B. Rationale for the General Rule
1. Proving the Omitters State of Mind: Criminal conduct
requires a guilty state of mind (mens rea). It is unusually difficult to
determine the state of mind of one who fails to act.
2. Line-drawing problems Difficult line-drawing problems
which omitters should be prosecuted? arise in omission cases.
3. Promoting individual liberty: In a society such as ours,
premised on individual liberties and limited government, the
criminal law should be used to prevent persons from causing positive
harm to others, but it should not be used to coerce people to act
to benefit others.
C. Exceptions to the General Rule: Notwithstanding the general
rule, a person has a legal duty to act in limited circumstances, if he is
physically capable of doing so.
1. Crimes of Omission: Statutory Duty: Some statutes
expressly require a person to perform specified acts. Failure to
perform those acts, by definition, constitutes an offense. Such an
offense may be characterized as a crime of omission.
2. Crimes of Commission: The criminal law sometimes permits
prosecution for a crime of commission (an offense that, by
definition, appears to require proof of conduct, rather than an
omission), although the basis of the prosecution is an omission.
Thus, we have a case of what might be characterized as commission-
by-omission.
a. Duty by Status: A person has a common law duty to
protect another with whom he has a special
status relationship, typically, one based on dependency
or interdependency, such as parent-to-child, spouse-to-
spouse, and master-to-servant.
b. Duty by Contract:A person may have an express
contract to come to the aid of another, or such a contract
may be implied-in-law.
c. Duty by Voluntary Assumption: One who voluntarily
assumes the care of another must continue to assist if
a subsequent omission would place the victim in a worse
position than if the good Samaritan had not assumed
care at all.
d. Duty by Risk Creation: One who creates a risk of
harm to another must thereafter act to prevent ensuing
harm.
IV. SOCIAL HARM
A. Definition: Social harm may be defined as the destruction of,
injury to, or endangerment of, some socially valuable interest.
B. Identifying the Social Harm: You can determine the social
harm of an offense by looking at the definition of the crime and
identifying the elements of it that describe the external conduct that
constitutes the crime.
C. Breaking Down the Social Harm Into Categories: It is
sometimes essential for a lawyer (especially in jurisdictions that follow
the Model Penal Code) to be able to look at the definition of a crime,
more specifically the actus reus portion, and divide up the social
harm elements into one or more of the following three categories
1. Result Elements (or Crimes): Some crimes prohibit a
specific result, such as the death of another person.
2. Conduct Elements (or Crimes): Some crimes prohibit
specific conduct, whether or not tangible harm results thereby, such
as offenses that prohibit drunk driving.
3. Attendant Circumstance Elements: A result or
conduct is not an offense unless certain attendant
circumstances exist. An attendant circumstance is a fact that
exists at the time of the actors conduct, or at the time of a
particular result, and which is required to be proven in the definition of
the offense.

PART THREE: MENS REA

I. MENS REA: GENERAL PRINCIPLES
A. Meaning of Mens Rea
1. Definition: a guilty mind, a guilty or wrongful purpose, a
criminal intent
2. Broad (Culpability) Meaning: A person has acted with
mens rea in the broad sense of the term if she committed the
actus reus of an offense with a vicious will, evil mind, or morally
blameworthy or culpable state of mind.
3. Narrow (Elemental) Meaning:Mens rea exists in the
narrow sense of the term if, but only if, a person commits the actus
reus of an offense with the particular mental state set out expressly
in the definition of that offense. This may be called the
elemental definition of mens rea.
4. Brothel Boy Example: Tragedy does not equate to sin/crime
5. Regina v. Cunningham Needed to have mental state
described in statute with the language of malice, looking at broad
culpability (district court malicious = wicket) but court of appeals
looks at it as elemental (whether malicious exists with particular
mental state/intent)

B. Rationale of the Mens Rea Requirement

1. Utilitarian Argument: It is frequently asserted that a person
who commits the actus reus of an offense without a mens rea is not
dangerous, could not have been deterred, and is not in need of reform.
Therefore, her punishment would be counter-utilitarian. (There is a
competing utilitarian argument set out in the Main Outline.)
2. Retributive Argument: The mens rea requirement is solidly
supported by the retributive principle of just deserts. A person who
commits the actus reus of an offense in a morally innocent
manner, i.e., accidentally, does not deserve to be punished, as
she did not choose to act unlawfully.
II. COMMON LAW
A. Intentionally
1. Definition A person commits the social harm of an offense
intentionally if: (1) it was her conscious object (desire) to cause
the result; or (2) if she knew that the result was virtually certain to
occur because of her conduct.
2. Transferred Intent Doctrine (Conley): Courts frequently
speak of a transferred intent doctrine: A person acts intentionally
as the term is defined above, if the result of her conduct differs
from that which she desired only in respect to the identity of the
victim.
B. Knowledge or Knowingly
1. Definition: Some offenses require proof that the actor had
knowledge of an attendant circumstance. At common law, a person
acts knowingly regarding an existing fact (an attendant
circumstance) if she either: (1) is aware of the fact; (2) correctly
believes that the fact exists; or (3) suspects that the fact exists and
purposely avoids learning if her suspicion is correct. The latter form of
knowledge is sometimes called willful blindness.
C. Risk-Taking: Recklessness and Criminal Negligence
1. Overview:Risk-taking is properly divisible into various types:
justifiable risk- taking; unjustifiable risk-taking that may properly
result in tort damages; and unjustifiable risk-taking that may also
result in criminal punishment. The latter forms of risk-taking are
frequently described as negligent risk-taking and reckless
risk-taking.
2. Unjustified Risk-Taking: In order to determine whether risk-
taking is justifiable or not, one must look at three factors: the
gravity of harm that a reasonable person would foresee might occur
as the result of the risk-taking conduct; the probability that this
harm will occur; and the reason for the proposed conduct, i.e., the
benefit to the individual or society of taking the risk. A risk is
unjustifiable if the gravity of the foreseeable harm, multiplied by
the probability of its occurrence, outweighs the foreseeable benefit
from the conduct.
3. Criminal Negligence: A person acts in a criminally
negligent manner if she should be aware that her conduct creates a
substantial and unjustifiable risk of social harm. Synonyms for
criminal negligence, include gross negligence and culpable
negligence.
4. Recklessness
a. Holmess View: Oliver Wendell Holmes, Jr., believed
that a person acts recklessly if she should be aware
that she is taking a very substantial and unjustifiable
risk. This is simply a heightened version of criminal
negligence. Notice: civil negligence involves
unjustifiable risk-taking; criminal negligence is substantial and
unjustifiable risk- taking; and recklessness (as
defined here) is very substantial and unjustifiable risk-
taking.
b. Modern Definition: Most courts now provide that a
person acts recklessly if she consciously disregards
a substantial and unjustifiable risk that her conduct
will cause the social harm of the offense. Under this
definition, recklessness differs from criminal
negligence in that it requires that the actor subjectively be
aware of the substantial and unjustifiable risk.
D. Malice: A person acts with malice if she intentionally or recklessly
causes the social harm of an offense, as the latter mens rea terms are
defined above.
E. Specific Intent and General Intent: The common law
distinguishes between general intent and specific intent crimes.
The distinction is critical, because some defenses apply only, or more
broadly, in the case of so-called specific intent offenses.
1. Specific Intent Offenses: In most cases, a specific intent
offense is one that explicitly contains one of the following mens rea
elements in its definition: (1) the intent to commit some act over
and beyond the actus reus of the offense; (2) a special motive for
committing the actus reus of the offense; or (3) awareness of a
particular attendant circumstance.
a. Ex. Common law larceny, trespassory taking, carrying
away of personal property of another with intent to
steal, intentional receipt of stolen property with
knowledge it is stolen (knowledge that was stolen was
attendant circumstance), common law burglary with the
intent to commit a felony therein
2. General Intent Offenses: Any offense that requires proof of
a culpable mental state, but which does not contain a specific intent,
is a general intent offense. Some- times, such an offense will have
no explicit mens rea term in the definition of the offense; it is enough
that the defendant committed the actus reus with any culpable state
of mind.
a. Common law rape, battery as defined intentional
application of unlawful force upon another (mental
state required is attempt to apply unlawful force
upon another)
F. Statutory Construction: A frequent issue in criminal law litigation
is whether a mens rea term in the definition of an offense applies to all
or only some of the actus reus elements
1. Common Law Interpretive Rules Of Thumb
a. Legislative intent: The ultimate issue for any court
today alwaysis to determine what the
legislature intended. A court will try to resolve interpretive
problems by ascertaining the intention of the drafters of
the law, sometimes by looking through legislative history.
Often, however, evidence regarding legislative intent is non-
existent or ambiguous, so courts must look elsewhere.
b. Position of the Mens Rea term in Definition of
Offense: Courts often look at the placement of the mens
rea term in the definition of the offense, in order to
ascertain legislative intent. See the Main Outline for a
useful example.
 i. Flores-Figueroa v. US placement of the word
knowingly in the statute typically applies to all
terms of the statute
c. Punctuation: Sometimes punctuation is relied upon to
determine that a phrase set off by commas is
independent of the language that precedes or follows it.
d. Attendant Circumstances: Courts sometimes assume
that, absent evidence to the contrary, mens rea terms
in the definitions of offenses do not apply to attendant
circumstance elements of the crime.
III. MODEL PENAL CODE
A. MPC 2.02, Subsection 1
1. Language:Some element of mental culpability must be
proved (by acting purposely, knowingly, recklessly, or
negligently) with respect to EACH material element (nature of the
forbidden conduct, attendant circumstances, result of conduct) of
the offense or no criminal conviction can be got
2. Significance of Subsection
a. Role of Mens Rea: In general, the MPC requires proof
of mens rea. More significantly, it requires proof of
some particular mens rea purpose, knowledge,
recklessness, or negligenceas to each material
element of the offense. This contrasts with the common law,
where there might be a mens rea requirement as to
one element but no mens rea required as to other
elements. In other words, with the MPC, each actus reus
element should be covered by some mens rea
requirement.
B. MPC 2.02, Subsection 2 Culpability Terms Defined
1. Purposely: The common law term intentionally is not used
in the Model Penal Code. Instead, the MPC subdivides intent into
its two alternative components, and calls them purposely and
knowingly. A person causes a result purposely if it is her
conscious object to cause the result.
2. Knowingly
a. Results: A person knowingly causes a result if she is
aware that the result is practically certain to occur from
her conduct.
b. Attendant Circumstances: A person acts knowingly
as to an attendant circumstance if he is aware that the
circumstance exists, or if he is aware of a high probability
of its existence, unless he actually believes that it does
not exist. The latter provision is the Code version of the
willful blindness doctrine discussed earlier.
 c. Willful Blindness: D must subjectively believe there is
a high probability that a fact exists and D must take
deliberate actions to avoid learning of that fact
d. Willful blindness does NOT = Knowing under MPC (State
v. Nations)
3. Recklessly
a. Basic Definition: A person is said to have acted
recklessly if he consciously disregards a substantial and
unjustifiable risk that the material element exists or
will result from his conduct.
b. Standard for Evaluating Conduct: The Code
provides, basically, that the standard discussed earlier
measuring the gravity of foreseeable harm, the
probability of its occurrence, and the reasons for taking
the riskshould be applied.
c. One is reckless when the risk-taking involves a gross
deviation from the standard of care that a reasonable
person would observe in the actors situation.
4. Negligently: A person acts negligently when he should be
aware of a substantial and unjustifiable risk. This is a risk that
constitutes a gross deviation from the standard of care that a
reasonable person would observe in the actors situation. The critical
difference between recklessness and negligence under the Code is
that in the former case, the actor is consciously aware of the
substantial and unjustifiable risk, but proceeds anyway; in the case
of negligence, the actor is not aware of the risk, but should be.

Attendant Results
Circumstances
Purpose D is aware (believes) Ds conscious object is
that C to cause R
Knowledge D is aware (believes) D believes that his
that C conduct is practically
certain to cause R
Recklessness D suspects that C (but D believes the risk of R
does not believe that C) is high and takes that
risk for reasons that are
insufficient
Negligence D is unaware that C, but D is unaware of the risk
a reasonable person of R but a reasonable
would have been aware person would have been
(would have believed) aware of that risk
that C
5.. Exceptions/violations: MPC 2.03(2)(a), 2.05
C. Statutory Interpretative Rule MPC
1. Default Position 2.02(3): The MPC requires some mens rea
term for each element of an offense ( 2.05 aside). If the statute
defining an offense is silent regarding the issue of mens rea as to one
or more of the actus reus elements, the Code provides that such
element is established if a person acts purposely, knowingly, or
recklessly with respect thereto. In essence, you fill in the blank with
purposely, knowingly, or recklessly.
2. When Just One Mens Rea Term is Mentioned 2.02(4): If
the definition of a MPC statute only sets out a single mens rea
element in the definition of the offense, that mens rea term applies
to every material element of the offense, unless a contrary legislative
intent plainly appears.
- i. Flores-Figueroa v. US placement of the word
knowingly in the statute typically applies to all terms
of the statute
IV. STRICT LIABILITY
A. Nature of a Strict Liability Offense: An offense is strict liability
in nature if commission of the actus reus of the offense, without proof
of a mens rea, is sufficient to convict the actor.
1. 5 Factors That Overcome Presumption Against Strict
Liability (Holdridge v. US):
a. The statutory crime is not derived from the common law
b. There is an evident legislative policy that would be
undermined by a mens rea requirement
c. The standard imposed by the statute is Reasonable and
adherence thereto properly expected of a person
d. The penalty for violation of the statute is small
e. The conviction does not gravely damage reputation
B. Public Welfare Offenses: Strict liability most often applies in
relation to public welfare offenses i.e. conduct by a single actor that,
although not morally wrongful, could gravely effect the health, safety
or welfare of a significant portion of the public
1. Characteristics of Most Public Welfare Offenses
a. Nature of the Conduct: Such offenses typically
involve malum prohibitum conduct, i.e., conduct that is
wrongful only because it is prohibited (e.g., motor
vehicle laws), as distinguished from malum in se conduct,
i.e., inherently wrongful conduct (e.g., murder).
b. Punishment: The penalty for violation of a public
welfare offense is usually minor, such as a monetary fine or
a very short jail sentence.
c. Degree of Social Danger: A single violation of a public
welfare offense often threatens the safety of many
persons, e.g., transportation of explosives on a highway not
designated for such use.
C. Non-Public Welfare Offenses: On rare occasion, non-public
welfare offenses are considered strict liability in nature. Statutory rape
is the most common example of such an offense.
 1. Two Differences from Public Welfare:
a. NP welfare offenses often result in severe punishment
(v. minor penalties of P welfare)
b. Involve conduct malum in se, and are thus stigmatized
despite absence f proven moral fault
D. Constitutionality of Strict Liability Offenses: Strict-liability
offenses are not per se unconstitutional. Nonetheless, there is a strong
presumption against strict liability as to offenses that have their roots
in the common law. In such circumstances, a court will not assume
(absent evidence to the contrary) that the legislature intended to
abandon the common law mens rea requirement, even if the statute is
silent regarding this element.
E. Policy Arguments
1. Utilitarian Justifications: 1) absence of mens rea
requirement may have the desirable effect of keeping people who
doubt their capacity to act safely from participating in dangerous
activities such as manufacturing pharmaceutical drugs or using
dangerous instrumentalities 2) those who do choose to engage in
the risky activity will act with greater caution in light of the strict
liability nature of the law 3) an inquiry into the actors mens rea
Would exhaust courts which have to deal with thousands of
minor infractions every day.
2. Alternatives to SL: 1) Legislature might require proof of
recklessness rather than authorize strict liability but set higher
penalties, including significant prison sentences, for violation of
public welfare offenses (which might be more effective means of
deterring dangerous conduct) 2) Legislature might retain minor
penalties that apply to public welfare offenses but require proof of an
extremely low level of mens rea such as civil negligence 3)
Legislature might continue to define public welfare offenses in strict
liability terms, but permit a lack of mens rea affirmative defense
F. MPC Attack on SL: MPC 2.02(1) provides that subject to one
exception, no conviction may be obtained unless the prosecution
proves some form of culpability regarding each material element of an
offense
1. Exception 2.05 which provides that the voluntary act and
mens rea requirements need not apply to offenses graded as
violations rather than crimes (since violations cannot result in
imprisonment or probation, but merely carry fines)
G. SL Checklist
1. Did the legislature include a mens rea term? If yes, then it is
likely that the mens rea term modifies all material elements of the
offense. If not, proceed.
2. Does the offense require the neglect of a statutorily-imposed
duty, as opposed to some affirmative action? If so, proceed.
 3. Is the offense against general public welfare, rather than
against persons or property?* If so, proceed.
4. Is the offenses penalty relatively small (i.e., usually less
than one year of imprisonment)? If so, proceed.
5. Does penalty gravely besmirch the offenders reputation? If
not, strict liability "may" be presumed.
6. If different answers are obtained at any point along the way,
the court will often refuse to apply strict liability and will read in
mens rea requirement.
PART FOUR: MENS REA AND MISTAKES OF FACT OR LAW
I. MISTAKE OF FACT
A. Common Law- what you actually commit
1. Specific-Intent Offenses: A defendant is not guilty of a
specific-intent crime if her mistake of fact negates the specific-
intent element of the offense. Even an unreasonable mistake of
facta mistake that a reasonable person would not make may
exculpate the actor, assuming the mistake negatives the mens rea
required for the offense
a. People v. Navarro- good faith but unreasonable okay
2. General-Intent Offenses
a. Ordinary Rule: A defendant is not guilty of a general-
intent offense if her mistake of fact was reasonable. An
unreasonable mistake of fact does not exculpate.
b. Exception: Moral Wrong Doctrine (Regina v
Prnice) : Although the principle stated above is the
general rule, on rare occasion a court will convict a
defendant of an offense, although her mistake of fact
was reasonable, if her conduct violates the moral wrong
doctrine. This doctrine provides that there should be
no exculpation for a mistake where, if the facts had
been as the actor believed them to be, her conduct
would be immoral, albeit legal. By knowingly committing
a morally wrong act, an actor assumes the risk that the facts are
not as she believed them to be, i.e., that her actions are not
just morally wrong, but also legally wrong.
i. Criticisms: 1) It permits conviction of a person
who did not know and had no reason to know
that his conduct would violate the law (principle of
legality) 2) It is founded on the premise that it is
fair to punish a person for unintentionally
committing the actus reus of an offense, if he intentionally
committed an immoral act
c. Alternative Exception: Legal Wrong Doctrine:
Occasionally, a court will convict a defendant of an
offense, although her mistake of fact was reasonable, if
her conduct violates the legal wrong doctrine. This rule
substitutes the word illegal for immoral in the
description of the moral-wrong doctrine, but is otherwise applied
in the same manner. Thus, a person is guilty of criminal
offense X, despite a reasonable mistake of fact, if she
would be guilty of a different, albeit lesser, crime
Y, if the factual situation were as she supposed.
i. Criticisms: 1) It authorizes punishment based on
the harm that an actor caused i.e., the actus reus
of the greater offense while ignoring the fact that
the actors mens rea was at the level of the lesser
crime
3. Analytical Framework for Applying CL to Mistake of
Fact Rules
a. Specific Intent: With specific intent offenses,
determine whether the mistake relates to the specific
intent portion of the offense.
i. If the mistake does relate to the specific intent
portion of the offense, conduct an elemental
analysisi.e., ask yourself whether the mistake
negates the specific intent element of the
offense. If it does, then the defendant is not liable.
ii. If the mistake does NOT relate to the specific
intent portion of the offense, treat the offense as
if it were a general intent crime.
b. General Intent: With general intent offenses, conduct
a culpability analysis i.e., ask yourself whether the
defendant acted with a morally blameworthy state of mind.
i. Determine whether the mistake was reasonable or
unreasonable. If it was unreasonable,
then the defendant is liable. If it was reasonable,
then the defendant is NOT liable.
ii. HOWEVER, be sure to determine whether the
court is applying the moral wrong or legal wrong
doctrine. Some courts will hold the defendant liable even
if the defendants mistake was reasonable under
either the moral wrong or legal wrong doctrines.
c. Strict Liability: With strict liability offenses, a mistake
is never a defense. Under an elemental analysis, there is
no element of mens rea to negate. Under a culpability
analysis, by definition, the defendants blameworthiness
is irrelevant.
4. Strict-Liability Offenses: A mistake of fact, whether
reasonable or unreasonable, is never a defense to a strict-liability
offense. This rule is logical: a strict-liability offense is one that
requires no proof of mens rea. Therefore, there is no mens rea to
negate. A defendants mistake of fact is legally irrelevant.
B. Model Penal Code what you intend to commit
1. General Rule: Subject to one exception noted below, a
mistake of fact is a defense to a crime if the mistake negates a
mental state element required in the definition of the offense. The
Code dispenses with the common law distinction between general
intent and specific intent offenses: the mistake-of-fact rule
applies to all offenses in the same manner.
2. Exception to the General Rule: In a variation on the
common law legal- wrong doctrine, the defense of mistake-of-fact
is inapplicable if the defendant would be guilty of a lesser offense
had the facts been as she believed them to be. However, under
such circumstancesunlike the common lawthe defendant will be
punished at the level of the lesser, rather than the greater, offense.
II. MISTAKE OF LAW
A. General Principle
1. General Rule: In general, knowledge of the law is not an
element of an offense. Moreover, a mistake of laweven a
reasonable one!does not ordinarily relieve an actor of liability for
the commission of a criminal offense.
2. Purported Justifications for the Rule
a. Certainty of the Law: The law is definite. Therefore,
any mistake of law is inherently unreasonable. See the Main
Outline for rebuttal arguments.
b. Concern about Fraud: If a mistake-of-law defense
were recognized, it would invite fraud. Every
defendant would assert ignorance or mistake, and it
would be nearly impossible to disprove the claim. See
the Main Outline for rebuttal arguments.
c. Promoting Knowledge of the Law: We want people
to learn the law. To promote educationto deter
ignorancethe law must apply strict liability principles.
See the Main Outline for rebuttal arguments.
B. Exceptions to the General Rule
1. Mistakes That Negate the Mens Rea: A defendant is not
guilty of an offense if his mistake of law, whether reasonable or
unreasonable, negates an element of the crime charged.
a. Cheek v. US : because of Ds mistake of law he did
not act Willfully in avoiding taxes
2. Authorized-Reliance Doctrine: A person is not guilty of a
criminal offense if, at the time of the offense, he reasonably relied
on an official statement of the law, later determined to be
erroneous, obtained from a person or public body with responsibility
for the interpretation, administration, or enforcement of the law
defining the offense.
a. MPC 2.04(3)(b) Rule: A defendant may use the excuse
of reasonable reliance when basing belief and
conduct on an official statement of the law (i.e. found in a
statute, judicial opinion, administrative ruling or
official interpretation of the law given by one responsible
for its enforcement like US GA) only if afterward
determined to be invalid or erroneous. (People v. Marrero)
3. Due Process Clause & Fair Notice: In very rare
circumstances, it offends due process to punish a person for a
crime of which she was unaware at the time of her conduct. The Due
Process Clause apparently is violated if three factors exist: (1)
the unknown offense criminalizes an omission; (2) the duty to act
is based on a status condition rather than conduct; and (3) the
offense is malum prohibitum in nature (Lambert Principle)

PART FIVE: CAUSATION

I. ACTUAL CAUSE (CAUSE-IN-FACT)
A. General Principles
1. Rule: A person is not guilty of an offense unless she is an
actual cause of the ensuing harm. Both the common law and the
MPC 2.03(1)(a) provide that conduct is the actual cause of the
prohibited result if the result would not have occurred but for the
actors conduct.
B. Steps for Determining the Actual Cause
1. Identifying the Relevant Conduct:Determine what is (are)
the relevant voluntary act(s) committed by D. If the case is based
on an omission, determine what the omission is, and substitute that
for the voluntary act in the following discussion.
2. Frame the Question Properly:Ask the question: But for Ds
voluntary act(s) would the social harm have occurred when it did? If
the social harm would have occurred when it did even if D had not
acted, D is not the actual cause of the harm and, therefore, is not
guilty of the offense. In a sense, yes means no (no criminal
liability). If the social harm would not have occurred when it did but
for Ds voluntary act(s), D is an actual cause of the social harm, in
which case you move on to the remaining causation issue (proximate
cause).
C. Multiple Actual Causes: There usually are multiple actual causes
of a result. A person who dies of lung cancer, for example, might not
have died when she did but for her smoking habit and living in a smog-
polluted city. It can also be the case that two personstwo potential
defendantsare the actual cause of a result. See the Main Outline for
useful examples.
1. Acceleration vs. Aggravation
a. When you accelerate you are on the hook
 b. Contribution to or aggravation of death without
acceleration is insufficient to establish actual cause
(Oxendine v State)
2 . Concurrent Sufficient Causes: In rare circumstances, the
but for test may fail to reach the morally sensible result. The
problem arises when two acts, either one of which is sufficient to
cause the resulting harm when it did, occur concurrently. See the
Main Outline for useful examples.
a. Substantial Factor Test: In such cases, many courts
resort to the substantial factor test, a standard that
is often used in tort cases. The question to be asked is: Was
Ds conduct a substantial factor in the resulting harm?
b. Model Penal Code: The MPC does not apply the
substantial factor testit uses the but for test in all
cases. However, the Commentary to the Code explains
that, in deciding whether a defendant was a but for
cause of a result, one would state the result with great
specificity.
i. How to apply to this with but-for cause under MPC:
They would say: But-for D1 and D2s actions, would
the harm have occurred? (But-for analysis adding
all causes, and if that is the case then both
sufficient causes)
3. Obstructed Cause: When D1 shoots V in stomach,
simultaneously and independently D2 shoots V three times in
head
II. PROXIMATE CAUSE (LEGAL CAUSE)
A. General Principles
1. Role of Proximate Cause In Legal Analysis: A person
who is an actual cause of resulting harm is not responsible for it
unless she is also the proximate (or legal) cause of the harm. When
the law states that a defendant was the proximate cause of a result,
this is a shorthand way of saying that it is morally just to hold this
person responsible for the harm.
2. Common Law, Model Penal Code, and Study Point: As
with any what is just analysis, there is no single or straightforward
answer. The common law provides various potential factors to
consider. The drafters of the Code have another way of handling the
issue: they treat proximate causation as a culpability, rather than
causal, issue. The MPC 2.03(1)(b) issue is whether the defendant
can be said to have purposely, knowingly, recklessly, or negligently
(whichever is relevant in a particular case) caused a particular
result if the result occurs in an odd or unexpected
manner. The Code takes all of the common law factors discussed
below and basically rolls them into one, explicit, policy question
for the jury: Was the actual result . . . too remote or accidental in
its occurrence to have a [just] bearing on the actors liability or on the
gravity of the offense.
a. MPC treats proximate causation a as issues relating to
actors of culpability, replaces 5 factors of common law
when actual result was not too remote or
accidental to have (just) bearing on the actors liability or
on the gravity of the offense 2.03(2)(b) & (3)(b)
B. MPC 2.03(1)(b) Proximate Cause Checklist: Use the following
checklist to determine whether any additional causal requirements
imposed by the Code or by the law defining the offense are satisfied:
1. What was the actual result?
2. Was the actual result within the actors purposei.e., did the
result come about in the way the
3. Did the actual result involve the same kind of injury as that
designed or contemplated?
a. If NO, the actor is not a proximate cause
b. If YES, ask the following question:
4. Was the actual result too remote or accidental in its
occurrence to have a [just] bearing on the actors liability?2
a. If NO, then D is a proximate cause (i.e., impute
culpability for the way in which the actual result
came about)
b. If YES, then D is not a proximate cause (i.e., do not
impute culpability for the way in which the actual
result came about)
5. What happens when strict liability applies to a results
element?
a. Was the actual result a probable result of the actor
conduct? (See MPC 2.03(4))
i. If YES, D is a proximate cause
ii. If NO, D is NOT a proximate cause
C. Direct Cause: A direct cause is a but-for cause, in which no other
cause intervenes between it and the resulting social harm. A voluntary
act that is a direct cause of the social harm is also a proximate cause
of it. This is because there is no other candidate for causal
responsibility.
D. Intervening Cause
1. Definition: An intervening cause is an actual cause (a but
for cause) of social harm that arises after Ds causal contribution
to the result
2. General Role of Intervening Causes: An intervening cause
does not necessarily relieve a defendant of causal responsibility for
the resulting harm. At common law, various factors come into play
in proximate causation analysis.
 3. Nature of Intervening Cause: It is useful, although not
always dispositive, to determine whether the intervening cause
was dependent or independent of the defendants act.
4. Six Common Law Factors (People v Rideout)
a. Factor 1: De Minimis Contribution to the Social
Harm: insignificant contribution to the social
harm
b. Factor 2: Forseeability of the Intervening Cause:
that consequence/action would result from the
conduct, responsive (dependent) v. coincidental
(independent)
i. Dependent and Independent
Distinguished: An intervening cause is
dependent if it occurs in response to the defendants
earlier conduct. An intervening cause is
independent if the factor would have come into play even in the
absence of the defendants conduct.
c. Factor 3 Intended Consequences Doctrine: In
general, a defendant is the proximate cause of a
result, even if there is an intervening cause, if
the defendant intended the result that occurred. But,
one should be very precise in stating what result the defendant
intended: a person may want someone dead in a particular
manner, in which case this doctrine only applies if the result
occurs in the desired manner.
d. Factor 4 Free, Deliberate, Informed Human
Intervention: In general, a defendant is not the proximate
cause of a result if a free, deliberate, and informed act
of another human being intervenes.
e. Factor 5 Apparent Safety Doctrine Even though the
defendant has created a dangerous situation, she is not
responsible for the ensuing result if it can be
determined that the dangerous situation created by the
defendant is overthat the victim, once at risk, has
reached apparent safety.
f. Factor 6: Omissions: Failure to act/protect during harm
i.e. When father omitted taking son to hospital when
injured and he died
E. MPC Proximate Cause 2.03(2)(a)
1. In the rare circumstance of an offense containing no
culpability requirement, the Code provides that causation is not
established unless the actual result is a probably consequence of the
actors conduct
a. Ex: Under a jurisdiction that recognizes the felony-
murder rule, but which applies MPC causation principles a
defendant may not be convicted of felony-murder of the
death was not a probably consequence of his
felonious conduct, if D attempted to rob a bank and
the bank teller was accidentally electrocuted pressing the burglar
alarm switch, D would not be liable for the death
because the actual result (Death by electrocution) was
not a probably consequence of robbing a bank.
1. 2.03(2)(a) Knowingly and Purposefully When purposefully
causing a particularly result is an element of an offense, the element
is not established if it is not within the purpose of the actor
unless, 1) the actual result only differs in person or property 2) that
injury design is more serious/extensive than that caused
2. 2. 03(2)(b) Proximate Cause: the actual results involves the
same kind of injury or harm a s that designed and is not too
remote or accidental in its occurrence
3. 2. 03(3)(a)(b) Recklessly and Negligently

PART SIX: CRIMINAL HOMICIDE

I. OVERVIEW & INTENTIONAL KILLINGS
A. Definition (CL): The killing of a human being by another human
being (suicide not included).
1. Old common law rule: born alive = human being
2. A human being becomes a human being when a fetus
becomes viable, and ceases (under CL) either by permanent cessation
of respiratory or pulsation, (by statute) everyone added brain death.
3. Traditional rule: heart and stop breathing
II. Criminal Homicide (CL): Homicide committed without justification
or excuse, divided by statue into murder and manslaughter.
A. Common Law Murder: Killing of a human being by another human
being with malice aforethought. (CL has no degrees of murder)
1. Aforethought (CL): superfluous, pretty much means
premeditation now i.e. to think about beforehand (premeditation
determinations by statute)
2. Malice (CL): fours states of mind that constitutes: 1)
intention to kill a human being 2) the intention to inflict grievous
bodily injury on another 3) extremely reckless disregard for the
value of human life (depraved heart murder) and 4) the intention
to commit a felony during the commission or attempted commission
of which a death results (felony murder)
a. Express malice: intention to kill a human being, Implied
malice: extreme recklessness or disregard, intention to
inflict grievous bodily harm, intent to commit a felony
where death results
3. Intent-to-kill Murder (also under Pennsylvania law):
Intentionally kills another human being without justification or
excuse or mitigating circumstance, is guilty of killing with malice
aforethought aka express malice, and is guilty of common law
murder. Must prove beyond reasonable doubt that this intent exists.
a. Intentional = his conscious object to kill another
human (purpose) or knows with certainty death will occur
(knowledge)
b. Typically in Penn. this would be 1st degree murder
4. Grievous Bodily Harm Murder: Malice aforethought implied
when you intend to cause grievous bodily injury but the victim
dies
a. Injury that is grave and not trivial, imperils life or
seriously interferes with victims health/comfort
5. Depraved Heart Murder: Malice aforethought implied,
extreme recklessness towards the value of human life
a. Recklessness: defined as conscious taking of a
substantial and unjustifiable risk
Elements:
1. Act or omission knowingly performed by D
2. Was a substantial risk that human life would be
threatened by the defendants conduct, and risk was
unjustified
3. D was aware that his conduct would unjustifiably
threaten death to others
4. D acted anyway with a wanton arrogant conscious
disregard for life
5. Another persons death was proximately caused by
the act or omission of D
6. Depraved Heart v. Involuntary Manslaughter
a. Under the Common-Law approach, there are several
different factors to consider when attempting to
distinguish depraved-heart murder from involuntary
manslaughter. Recall that under depraved- heart, the
defendant does not intend to kill, but his actions are so
extremely reckless and callous, that malice is implied. The
factors to consider are:
1.Substantiality of the risk. This includes the
probability of harm and the magnitude of harm.
(objective)
2.Justifiability of the risk. This includes the reasons
for taking the risk. It is important to see that the
issue of risk-taking cannot be separated from the
reason a person has taken the risk. Recall from
the chart in class the situation of the
experimental surgery. There was substantial risk involved
(75% chance of death), but the risk was justified
because the patient was already terminally ill
and eventual death was certain. (Subjective)
 3.Awareness of the risk. Under depraved-heart
murder, the defendant has a conscious
disregard for human life--i.e., the defendant knew
she was putting human life at risk. (Subjective)
b. Under involuntary manslaughter, the defendant may
also should conscious disregard for the risk(s) created by
her behavior (i.e., recklessness), but the recklessness
is not so extreme to constitute an extreme disregard. A
defendant, at common law, is also guilty for involuntary
manslaughter when she should be aware, but is not
aware, that her conduct creates an unjustifiable risk
(negligence). In this situation, the risk taking is
inadvertent but unreasonable.
c. Criminal law punishes "gross" negligence, not ordinary
negligence (like in tort law). Gross negligence is defined
as a substantial deviation from the standard of care
what a reasonable person would exercise in the same
situation. [I recognize that this definition also lacks
precision.] But just think about it this way: the issue cannot be a
"close call."
d. One is presumed to have extreme recklessness
Robbery, Forceful Rape, Arson, Burglary, Kidnapping, and
Felonious Escape.

7. Felony-Murder Rule: If one kills another person during the

commission or attempted commission of any felony, they are
guilty of felony murder (classic/pure rule)
a. Purpose: to encourage felons that if they are going to
commit felony, we want them to commit the offense
without perpetuating violence (utilitarian argument
because deterrent value/protecting sanctity of
human life)
b. Rationale For: 1) Deterrence (deter negligent and
accidental killings during commission of felonies, deter
dangerous felonies), 2) Transferred intent (not strict
liability, but rather transferred intent so that intent to
commit felony is transferred to act of killing), 3) Eases
prosecutors burden of proof (easier for state to put bad people
away), 4) Retribution (one who does bad acts cannot
complain about being punished for murder because it is a
result of their behavior to commit felony), 5) Minimization
of usefulness of perjury, 6) Retributivist societal
judgments that a felony causes a death is more serious than a
felony that does not result in a death, 7) Clarity (clear
definition of offenses and sentence consequences)
 c. Rationale Against: 1) There is no empirical evidence
that this rule deters felonies (violent or otherwise), 2)
Transferred intent is not applicable (misuse of the
doctrine), 3) Do not want a lowered burden of proof
because we do not want to put innocent people away in jail
more easily, 4) Regardless of sanctity of human life,
someone who accidentally killed someone should not
be punished as harshly as someone who intentionally
killed another, 5) Vague purpose, 6) Alternative exist
i.e. could vary the punishments not the crimes (sliding
scale
d. Strict liability, does not matter how the killing occurs
(intentionally, negligently, recklessly, accidentally and
unforeseeably)
e. The law treats the escape as part of the crime
f. Extends implicitly and often expressly to accomplices in
commission of felonies
g. Limits:
1. Inherently dangerous felony limitation: many
states limit rule to homicides that occur to a felony
committed that are inherently dangerous to
human life
i. Two types: 1) abstract approach: can you
imagine any set of facts under which actor
guilty under felony charge, look at
definition and elements of the crime to see if
it is inherently/by nature dangerous 2) factual
approach: look at facts and circumstances of case to
determine if such felony inherently dangerous in
manner it was committed
ii. For/against each type: 1) For Abstract: if
a court examines the facts before seeing if
crime inherently dangerous might be unfairly
prosecuted because easier to deem
inherently dangerous by facts then by crime
itself 2) Against Abstract: (same as for factual) 3) For
Factual: abstract approach undermines
purpose of murder rule, which is to deter
conduct, if the conduct made death
foreseeable you should be held accountable for it
4) Against Factual: it will always be deemed
inherently dangerous because a death occurred
2. Independent Felony or Merger Limitation:
Felony murder rule only applied if predicate underlying
felony is independent of or collateral to the
homicide. If the felony is not independent, the
felony merges with the homicide and cant serve
as the basis for a felony murder conviction.
i. Commonly assaultive type felonies merge
with homicide (so FMR inapplicable)
3. Res Gestae: FMR still applies even after a felony
is technically completed if the killing occurs
during the escape from the scene of the crime,
at least if it is part of one continuous
transaction (a limitation where the continuous
transaction has ended before the death occurs, can also be an
extension if it is one continuous transaction)
i. RG requirement needs more than
coincidental connection between
felony and homicidal act (logical nexus)
4. Killing by a Non-Felon: 1) Agency (majority
rule): when K is committing a felony and A kills someone,
the FMR does not extend to a killing although
growing out of the commission of the felony if
directly attributable to the act of one other than
the defendant or those associated with D in the unlawful
enterprise (a non felon/co-felon), like a 3rd party
killing
2) Proximate Cause Approach (minority view): A felon
is liable for any death that is the proximate result
of the felony, whether the shooter is a
rd
felon or a 3 party, basic idea is that the felons
attempt set in motion a chain of events that they
should have thought about and the felon is responsible for the
inevitable sequence of the events even if killing
rd
from a 3 party

B. Statutory Murder
1. Pennsylvania: First must decide whether any of the 4
malices from common law exist in order for there to be murder,
then if it does have one classify into 1st or 2nd degree murder
a. 1st degree murder: 3 types; 1) statutorily specified
manner (poison/lying and waiting), 2) a willful
deliberate and premeditated killing, 3) felony-murder with
enumerated felony (i.e. Originally Penn. had arson, rape
robbery, burglary)
b. Willful, deliberate and premeditated killing
1. Willful: specific intent to kill
2. Deliberate: measure and evaluate major facts of
a choice or problem, the process of determining a certain
course of action to kill as a result of thought
including weighing the reasons for and against the
action and considering the consequences of the
action (cool purpose separate from influence of
passion/excitement)
3. Premeditated: think about beforehand, sharply
divided on how much prior though creates
premeditation
i. Shrader Standard: can immediately
proceed, if the killing is intentional it is often
considered premeditated
ii. Forrest Standard: circumstantial evidence
can establish premeditation, relate to mental
processes and ordinarily are not susceptible
to proof by direct evidence. Factors: 1)
want of provocation on the part of the
deceased; 2) the conduct and statements of the D
before and after the killing; 3) threats and declarations
of the D before and during the course of
the occurrence giving rise to the death of the
deceased; 4) ill-will or previous difficulty
between the parties; 5) the dealing of lethal blows
after the deceased has been felled and
rendered helpless; and 6) evidence that the killing was
done in a brutal manner.
1. Under Shrader = 2nd degree, under
st
Morin = 1 degree
iii. Morin Standard: requires time to think
about beforehand, require a thought
process that is undisturbed by hot
blood (cannot be only momentary because
st nd
that obliterates distinction between 1 /2
degree murder)
iv. Midget: under Shrader = 1st degree, under
Morin = 2nd degree
v. Policy: Deterrence and level of moral
blameworthiness as potential
reasons behind punishing premeditated crimes as
1st degree (are more deter-able and more morally
reprehensible)
b. 2nd degree murder: if a murder and not covered by 1st
degree murder classification, any killing not
specifically covered by 1st degree murder (i.e. intentional
killings that are not premeditated and deliberate,
grievous bodily harm, depraved heart, deaths committed
in felony not enumerated)
1. Grievous Bodily Harm = same definition as CL,
but constitutes 2nd degree murder
 2. Depraved Heart Murder = same definition as
nd
CL, is 2 degree murder
3. Felony-Murder: usually enumerated via statute
for 1st degree, all of the non-enumerated
felonies are second degree murder
C. MPC Criminal Homicide: If one unjustifiably and inexcusably take
the life of another human purposefully, knowingly, recklessly or
negligently.
1. There are three types of criminal homicide under MPC: Murder,
Manslaughter and Negligent homicide
D. MPC Murder
1. 210.2(1)(a)
2. Definition: Unjustifiably and inexcusably, and in the absence
of mitigating circumstances, kills another either purposefully or
knowingly, or recklessly under circumstances manifesting
extreme indifference to human life (depraved heart)
a. There are no degrees in the MPC, abandons malice
aforethought, so intent to commit Grievous bodily
injury has no independent significance under the
code thus a case involving that state of mind would be
either extreme recklessness (murder) or lesser form of
unintentional homicide (reckless manslaughter or negligent
homicide)
3. Felony Murder Rule: no official FMR under MPC, but if a
person commits one of various enumerated felonies this creates
a presumption of negligence manifesting an extreme indifference
to the value of human life
a. Presumption can be rebutted so a felon is not necessarily
convicted of murder.
E. Manslaughter: An unlawful killing of a human being by another
human being without malice aforethought
F. Common Law Manslaughter: Two categories of manslaughter 1)
Voluntary (Intentional) 2) Involuntary (unintentional)
1. Generally three types of unlawful killings that are
manslaughter, 1 is voluntary 2 are involuntary
a. Voluntary
i. Heat of Passion 3 Elements (ALL jurisdictions)
Girouard
1. Adequate Provocation (adequate =
calculated to inflame the passion of a
reasonable man intending to cause him to act
for the moment from passion rather than
reason)
2.. Killing occurred during heat of passion
3. No opportunity to cool down
ii. Heat of Passion Continued
 4. Mere words are not enough Girouard
5.Provcation is reasonable (or adequate) if it is:
extreme assault or battery, mutual combat,
illegal arrest, serious injury of a close relative,
sudden discovery of a spouses adultery, jury
decides if provocation was reasonable provided
judge does not declare is unreasonable as a
matter of law (this last one is the modern
variation)
6. If provocation is reasonable then loss of self
control is reasonable UNLESS D had a
reasonable opportunity to cool down.
7. Why is provocation a partial defense?
a. What D was wrong but not as wrong as
otherwise (given
circumstances/provocation)
b. Disproportionate response: Vs
provocation warranted some response,
but Ds response (killing V) was
disproportionate
c. Worthy motive: reason/motive for killing
doesnt fully justify killing, but
nonetheless makes killing less wrongful
d. Partial excuse: D was responsible for
what he did but not as responsible as he
otherwise would have been but for Vs
provocation
e. Partial incapacity: Ds capacity to control
desire to kill partially undermined
iii. Diminished Capacity (only some jurisdictions)
1. Partial Responsibility
a. Partial responsibility version of
diminished capacity, reduce murder to
manslaughter, if D can prove that death
was result of diminished capacity
makes D less morally culpable for the
homicide.
b. MPC also recognizes this form of
diminished capacity w/in the voluntary
manslaughter definition
c. Exam note: If there is ever someone
being charged for murder, make sure you
analyze manslaughter

b. Involuntary: not tryna kill someone

 i. Criminal Negligent Homicide: Unintentional
killing that is the result of an act lawful in itself but
done in an unlawful manner and without due caution
and circumspection, involving a gross deviation from
the standard of care that reasonable people would
exercise in the same situation (so gross as deserving
punishment).
a. Important distinction here: if they were
aware that they are taking a risk and did it
anyway, then recklessness, malice, and
therefore murder; however if it is a case where
person was not aware, but should have been,
that was taking substantial and unjustifiable
risk, then criminal negligence and involuntary
manslaughter

ii. Misdemeanor Manslaughter Rule:

Unintentional killing that occurs during the
commission or attempted commission of an unlawful
act
a. Looks very much like felony murder, except
stead of felony have any unlawful act
b. Example: driver rolling through intersection
(unlawful act), child jumps out of nowhere, kill
child = involuntary manslaughter

F. MPC Manslaughter: a person is guilty of manslaughter if she 1)

recklessly kills another without extreme indifference to the value of
human life (when recklessly killing defendant is ALWAYS able to
have jury instruction regarding reckless manslaughter, up to the
jury to decide) or 2) kills another person under circumstances that
would ordinarily constitute murder but which homicide is
committed as a result of extreme mental or emotional disturbance
for which there is no reasonable explanation or excuse (People v.
Casassa)
1. For EMED much broader version under MPC, ask question:
whether or not the person is emotionally/mentally
disturbed (subjective) and whether the excuse for being in
the emotional/mental state is reasonable (objective
standard, but partially subjective in that the perspective of
reasonableness is considered from the view point of the
person in the actors situations under the circumstances as
he believes them to be)
a. A specific provocative act is not required to
trigger the EMED defense
 b. Even if there is provocation it need not involve a
provocative act perpetrated on the D by the
victim
c. Even if the victim provoked the incident it need
not fall within any fixed category of provocation
i.e. words alone can warrant a manslaughter
instruction
d. No required cooling-off rulesuddenness
requirement of the common law is absent
2. There is no misdemeanor-manslaughter rule in the MPC
3. Under MPC liability for manslaughter cannot be found on
criminal negligence
G. MPC Negligent Homicide : is akin to involuntary manslaughter at
common law, a criminally negligent homicide, felony of the 3rd
degree

Murders Manslaughter
With malice Without malice
Intent to Intent to kill murder Voluntary manslaughter
kill
No intent to Implied malice Involuntary manslaughter
kill Intent to cause serious Lawful act without
harm or injury appropriate caution
Extreme recklessness (negligent homicide)
or disregard Nonlawful act An
Intent to commit a unlawful act thats not a
felony felony but a
misdemeanor
(misdemeanor
manslaughter)

Pennsylvania Common Law Model Penal Code

First Degree Murder Malice Murder Murder (section
210.2(1)(a)
Intent (purpose) to kill + Intent (purpose or Murder section
specified manner of knowledge) to kill 210.2(1)(b)
killing
Intent (purpose) to kill +
willful, deliberate,
premeditated
Felony murder with
enumerated felony
Second degree murder Intent (purpose or Manslaughter
knowledge) to inflict section 201.3(1)
GBH (a)&(b)
Manslaughter Depraved heart Negligent homicide
section 210.4
Voluntary (heat of Felony Murder
passion)
Involuntary (negligence) Manslaughter
Voluntary (heat of
passion)
Involuntary
(negligence)

PART SEVEN: DEFENSES TO CRIME OVERVIEW

I. FAILURE OF PROOF DEFENSES (Negation Defenses)
A. Definition: A failure defense is one in which the D introduces
evidence at this trial that demonstrates that the prosecution has failed
to prove (beyond a reasonable doubt) an essential element of the
offense charges
1. Ex: Intentionally receiving stolen property without knowing it
was stolen (negated the specific intent of knowing it was stolen,
mistake of fact)
II. JUSTIFICATION DEFENSES
A. Definition: A defense that defines conduct otherwise criminal,
which under the circumstances is socially acceptable and which
deserves neither criminal liability nor even censure.
1. Ex: Killing someone in the name of self-defense, defense of
others/property, necessity. I didnt do anything wrong
III. EXCUSE DEFENSES
A. Definition: Centers upon the actor and tries to show that the actor
is not morally culpable for his wrongful conduct, an excuse defense is
in the nature of a claim that although the actor has harmed society, he
should not be blamed or punished for causing that harm
1. Ex: I did do something wrong (or should not have done) but I
still should not be held criminally accountable for my actions
IV. SPECIALIZED DEFENSES (OFFENSE MODIFICATIONS)
A. Definition: Pertain to just a few crimes, They authorize acquittal of
a defendant, even though his conduct satisfies the elements of the
offense, when the underlying purpose for prohibiting the conduct is
negated by the conditions that constitute the defense
1. Ex: A criminal attempt serves the utilitarian purpose of
providing society with a basis for arresting and punishing a person who
has demonstrated his culpability and dangerousness by taking a
substantial step toward committing a criminal offense , i.e. the
decisions to abandon a criminal goal negates his culpability and
dangerousness and therefore render his punishment unnecessary.
V. EXTRINSIC DEFENSES (NONEXCULPATORY DEFENSES)
A. Definition: Involve public policy factors extrinsic to substantive
criminal law doctrine, serves an important public policy interest
unrelated to the social harm committed by the actor or to his
blameworthiness for causing it, legislative recognition of such a
defense implies that the social interest served by it outweighs the
utilitarian and or retributive reasons for punishing the offender.
1. Ex: Statute of limitations, diplomatic immunity, and
incompetency to stand trial
PART EIGHT: DEFENSES TO CRIME: JUSTIFICATIONS
I. JUSTIFICATION DEFENSES: GENERALLY
A. Definition: A justification defense is one that indicates societys
conclusion that the defendants conduct was morally good, socially
desirable, or (at least) not wrongful.
B. Basic Structure of Justification Defenses: In general, a
justification defense contains three components.
1. Necessity: Ordinarily, use of force against another is not
justifiable unless it is necessary.
2. Proportionality: Ordinarily, a person may not use force that
is disproportional to the threat that motivates the use of force. For
example, deadly force should not be used to repel a non-deadly
threat.
3. Reasonable Belief: Ordinarily, a defendant must possess a
reasonable (even if incorrect) belief that the use of force is necessary
and proportional to the supposed threat.
C. Underlying Theories of Justification Defenses
1. Public Benefit: Conduct is not justified unless it was
performed in the publics interest, in most cases limited to actions of
public officers (executioner, cop, or private party taking life of
someone who committed an atrocious felony), justified because
society benefits from conduct (no longer a dominant theory)
2. Moral Forfeiture Theory: A persons conduct is justified as
long as it does not result in a socially undesirable outcome, based
on the view that people possess certain moral rights or interest
that society recognizes through its criminal laws i.e. the right to life
but which the holder of the right may forfeit.
a. The forfeiture of a right must be distinguished from its
waiver; some moral interests are not waivable (cannot
consent to own death). Nonetheless, this non-waivable right can
be forfeited (non- consensually lost) as the result of
an actors voluntary decision to violate the rights of
another. Under these circumstances, society may
determine that it will no longer recognize the wrongdoers
interest in her life.
3. Moral Rights Theory: Conduct can be justified on the
ground that actor has a right to protect a particular moral interest.
 a. Provides actor with an affirmative right to protect her
threatened moral interest.
b. Criticism: too proportional. Filters out shades and
nuances and transforms everything into black and
white.
4. Superior Interest (Lesser Harm) Theory: conduct
justified when the interests the defendant seeks to protect
outweigh those of the person whom she harms. Interests of
parties and values they seek to enforce are balanced. Each case
there is a superior, or at least a non-inferior, interest: as long as the
interest is pursued, the conduct is justified.
a. Consistent with utilitarian goal of promoting individual
conduct that reduces overall social harm and concept of
weighing rights and identifying the superior one.
b. Ex. Trespassing into a house to avoid a tornado
conduct justified.
II. SELF-DEFENSE
A. Common Law
1. General Rule: Subject to clarification below, a person is
justified in using deadly force against another if: (a) he is not the
aggressor; and (b) he reasonably believes that such force is
necessary to repel the imminent use of unlawful deadly force by the
other person.
2. Definition of Deadly Force: The term deadly force
whether applied to the actions of the aggressor or the person
resisting aggressionis typically defined as force likely to cause,
or intended to cause, death or serious bodily harm.
3. Aggressor: An aggressor may not use deadly force in self-
defense. It is possible, however, for an aggressor to purge himself
of his status as an aggressor and regain the right of self-defense.
a. Definition: An aggressor is one who commits an
unlawful act reasonably calculated to produce an
affray foreboding injurious or fatal consequences.
b. Losing the Aggressor Status
i. Nondeadly Aggressors: A, a nondeadly
aggressor, may regain her right of self-defense
against B, if B responds to As nondeadly
aggression by threatening to use excessive
deadlyforce in response. Courts differ, however, regarding
how A regains the right to use deadly force.
1.Majority Rule: A immediately regains her
right of self- defense, as soon as B
threatens excessive force.
2. Minority Rule: If B responds to As nondeadly
aggression by threatening to use
deadly force against A, A may not use deadly
force in self-defense unless A first retreats,
and B continues to threaten A with deadly
force. If no safe retreat is possible, however, A may
immediately use deadly force.
ii. Deadly Aggressor: A, a deadly aggressor, loses
the right of self-defense in a conflict unless she
abandons her deadly design and communicates
this fact to B.
4. Proportionality of Force: Deadly Against Deadly: Deadly
force may never be used in response to a nondeadly threat, even if
this is the only way to repel the nondeadly threat.
5. Unlawful Force/Unlawful Threat: A person has no
right to defend herself against lawful justified force. She may only
respond to unlawful threats of force.
6. Imminency: Although modern courts are somewhat less
strict than their predecessors, generally speaking a person may not
use deadly force in self- defense unless the aggressors
threatened force will occur immediately, almost at that instant.
7. Necessity to Use Deadly Force A person may not use
deadly force unless it is necessary.
a. Use of Less Force: A person may not use deadly force
to repel an unlawful deadly attack if more moderate
(nondeadly) force will do the job.
b. Retreat?: Must non-aggressors retreatflee to a safe
place rather than stand their ground and use deadly
force? Today, there is a conflict on this subject in non-
Model Penal Code jurisdictions. A majority of non- MPC
jurisdictions do not have a retreat requirement. A
minority of jurisdictions provide that, with one key exception, a
non-aggressor may not use deadly force to repel an attack
if she knows of a completely safe place to which she
can retreat. The exception is that a non-aggressor is
never required to retreat from her own home.
8. Reasonable Belief
a. General Rule: The self-defense rules discussed above
are modified by the reason- able belief principle,
which provides that a person may use deadly force in self-
defense if she has reasonable grounds to believe, and
actually believes, that she is in imminent danger of death
or serious bodily harm, and that use of deadly force is necessary
to protect herself, even if her reasonable beliefs in
these regards are incorrect.
b. What Is a Reasonable Belief?: A reasonable belief
is a belief that a reasonable person would hold in the
actors situation. But, that only shifts the question to
the issue: who is a reasonable person? Ordinarily,
the defendants physical characteristics may be
incorporated into the reasonable person. Many courts today
also subscribe to the view that prior experiences of the
defendant (such as her prior experiences with the
decedent) that help the defendant evaluate the present
situation are relevant.
c. Battered Women and Self-Defense: How should the
law deal with the situation of a woman, physically
abused for years by her husband or live-in partner, who
kills her abuser at a moment when she is not, in fact,
under imminent attack, for example, when the batterer is
sleeping? Can we say that the battered woman reasonably
believed that the batterer represented an imminent
threat in such nonconfrontational circumstances?
i. Legal Trends: Most courts prohibit an instruction
on self- defense if the homicide occurred in
nonconfrontational circumstances, on the
ground that no reasonable juror could believe that
the defendant, as a reasonable person, would
believe that a sleeping man represents an imminent threat. But,
a few courts now do permit such cases to go to the
jury, if Battered Woman Syndrome evidence is
introduced to show that the defendant, as a
battered woman, suffered from this condition.
See the Main Outline for discussion of this syndrome
evidence.
B. MPC Self Defense
1. General Rule: Subject to the limitations discussed below, a
person is not justified in using deadly force against another
unless she believes that such force is immediately necessary to
protect herself against the exercise of unlawful deadly force, force
likely to cause serious bodily harm, a kidnapping, or sexual
intercourse compelled by force or threat, by the other person on
the present occasion. See the Main Outline for a comparison of this
rule to the common law.
2. Limitations on General Rule: Even if deadly force is
otherwise permitted, it is impermissible in two key circumstances.
a. Defendant as Aggressor: As with the common law,
the defense is not permitted if the actor is the
aggressor, which the Code defines as one who
provokes the use of force against herself in the same
encounter for the purpose of causing death or serious bodily
injury.
b. Retreat: The Code follows the minority common law
position that a non- aggressor must retreat if she knows that
she can thereby avoid the need to use deadly force with
complete safety to herself. This retreat requirement,
however, is itself subject to various exceptions, most
notably that a person need not retreat from her own dwelling.
c. Other Non-Necessity Circumstances: The Code
explicitly provides that deadly force may not be
used if, subject to various exceptions, the defendant
can avoid doing so by surrendering possession
of a thing to a person asserting a claim of right thereto or
by complying with a demand that he abstain from any action that
he has no duty to take.
C. Battered Womens Syndrome Common Law (3 types)
1. The evaluation requires: 1) the D believes it is necessary to
kill the deceased to save self from death or great bodily harm
(subjective) 2) whether or not the belief is reasonable (objective,
partially subjective because needs to be assessed through the
perspective of the defendant under the circumstances she found
herself) Norman
a. The three phases of BWS: (1) tension building phase
minor incidents of physical, sexual, or emotional abuse
occur; hostility begins (2) acute battering incident
batterer unleashes a barrage of verbal and physical
aggression that can leave a woman shaken and injured (3)
contritionbatterer apologizes, seeks forgiveness, and
promises to change; transformation of abuser back into a
loving partner gives the positive reinforcement for
remaining in the relationship
b. The cycle repeats, so BWS does not exist unless it is
repeated more than once. The cycle becomes more
intense, frequent, violent, and lethal over time. The victim
develops learned helplessness where the woman comes to
believe they cant control the situation and become
passive and submissive. Victims become able to sense the
escalation between 1st and 2nd phase that outsiders
cannot detect.
2. Confrontational Homicides (most popular): Cases in
which the battered woman kills her partner during a battering.
The primary issue in these cases is whether the D is entitled to
introduce history-of-abuse evidence and offer expert testimony
regarding the effects of battering
3. Non-confrontational homicide: The abuser is killed while
asleep or during some other lull in the violence
a. Legal issues that arise: IS the defendant entitled to a
jury instruction on self defense in the absence of proof of
some aggressive act by the decedent at the time of the
killing and 2) may the D introduce battered womens
syndrome or other evidence of the effects of battering to
 show that she subjectively and reasonably believed that
her actions were necessary not withstanding the lack of an
immediate threat (Norman)
4. Third Party Homicide: When the woman hires a third party
to kill the abuser
5. MPC: Use 3.04 general self-defense.
D. The Necessity Defense
1. Common Law, Elements of the Defense
a. Lesser-Evils/Choice of Evils Analysis: The actor
must be faced with a choice of evils or harms, and he
must choose to commit the lesser of the evils. Put
differently, the harm that D seeks to prevent by his
conduct must be greater than the harm he reasonably expects to
cause by his conduct. The balancing of the harms is
conducted by the judge or jury; the defendants
belief that he is acting properly is not in itself sufficient.
i. Most often invoked successfully when an actor as a
result of some natural (non-human) force or
condition, he must choose between violating a
relatively minor offense on one hand and suffering
substantial harm to person or property on other
ii. William Gray/Ploof (successful), Nelson v State
(unsuccessful)
b. Imminency of Harm: The actor must be seeking to
avoid imminent harm. This rule is strictly enforced: if there is
sufficient time to seek a lawful avenue, the actor
must take that lawful route. Clear and imminent
danger.
c. Causal Element: The actor must reasonably believe
that his actions will abate the threatened harm i.e. there must
be a direct causal relationship between his action and
the harm to be averted.
i. EX: An inmate who flees confinement because of a
raging prison fire, has chosen a path that
will directly save his life.
d. No Legal Alternative: There must be no effective
legal way to avert the harm.
i. Nelson v. State where there were lawful
alternatives to steeling the HDs property, through
strangers offering to help and calling tow
truck/police officers for assistance.
e. Clean Hands/Blamelessness of the Actor: Many
courts and/or statutes provide that the actor must not
be at fault in creating the necessity, D must not
substantially contribute to the emergency or wrongfully
place himself in a situation in which he would be forced to
engage in criminal conduct
i. EX: D recklessly starts a fire, purposefully burns
Vs farm land to create a Fire line that will
prevent major conflagration but still unable
to use defense because he was responsible for
creating the emergency.
f. Balancing: 1) The Ds actions should be weighed
against the harm reasonably foreseeable at the time,
rather than the harm that actually occurs, and 2) given
the facts as they reasonably appear, the issue is not
whether the D believes that he made the right choice, but rather
the question is whether the defendants value judgment
was in fact correct as determined by the judge or jury
(unclear whether value judgment should be on utilitarian
ground or on the basis of morality under the
circumstances)
g. Legislative Intent: Lawmakers must not have
previously anticipated the choice of evils and
determined the balance to be struck between competing
values in a manner inconsistent with the Ds choice.
i. D may not defend illegal use of marijuana for
medical purposes if legislature previously
weighted use of medical marijuana against
value served by prohibitions of its
use/possession and rejected the former.
2. CL Limits to Necessity Defense:
a. Limit to National Emergencies: SOME states limit the
application of necessity defense to emergencies created
by natural (as distinguished from human) forces
i. EX: D may trespass on property to avoid a tornado
but not to escape an armed robber, or jail inmate
may claim necessity if he flees a prison because of
a fire but not if another inmate threatens to
assault him
b. Homicide Prosecutions: It is unclear whether the
defense of necessity applies to the crime of murder, it
may not apply.
i. Regina v. Dudley and Stephens (look at page 294
in HB)/ Holmes
ii. Common issue: Assuming that all of the
requirements for a necessity defense are
otherwise satisfied may a person justifiably
kill an innocent person, or more than one, in order
to save a greater number of innocent lives?
 c. Limit to Persons and Property: SOME states limit the
defense to protection of persons and property
i. EX: A person may not act to protect reputation or
economic interests, no matter what the
circumstances
3. Model Penal Code Elements: A person is justified in committing
an act that otherwise would constitute an offense if:
1. The actor believes that the conduct is necessary to avoid
harm to himself or another
2. The harm that the actor seeks to avoid is greater than that
sought to be avoided by the law prohibiting his conduct
3. There does not plainly exist any legislative intent to exclude
the justification claimed by the actor. If the actor was reckless or
negligent in bringing about the emergency, the defense is
unavailable in a prosecution for any offense for which recklessness
or negligence, as the case may be, is sufficient to prove guilt.
a. The determination of what constitutes a lesser harm is
not left to the actors evaluation, but rather to the judge
or jury at trial
4. Comparison to Common Law: Under the Code it is broader
than CL, the threatened harm need not be imminent. Moreover,
the Commentary to the Code expressly states that this defense is
available in homicide prosecutions. Under code the person does not
automatically lose the defense because he was at fault in creating
the necessitous situation, the code is one of general applicability (all
forms of necessity qualify) and is not limited to emergences
created by natural forces, not limited to harm to persons and
property and may be employed in homicide cases.

III. DEFENSE-OF-THIRD-PARTIES
A. Common Law
1. General Rule: A person is justified is using deadly force to
protect a third party from unlawful use of force by an aggressor. The
intervenors right to use force parallels the third partys apparent
right of self-defense. That is, the third party may use force when,
and to the extent that, she reasonably believes that the third party
would be justified in using force to protect herself.
2. Minority Rule: Some jurisdictions provide that a person may
only use force to defend a third party if the person being defended
would in fact have been justified in using the same degree of force
in self-defense. That is, the intervenor is placed in the shoes of the
party whom she is seeking to defend. If the other person has no
right of self-defense, even though the intervenor reasonably
believes that she does, the intervenor loses her claim.
B. Model Penal Code 3.05: A person is justified in using deadly force
to protect another if: (1) the intervenor would be justified in using such
force to protect herself, if the facts were as she believed them to be;
(2) according to the facts as the intervenor believes them to be, the
third person would be justified in using such force to protect herself;
(3) the intervenor believes force is necessary for the third partys
protection; and (4) if the third party would be required to retreat under
the Code self-protection rules, the intervenor must attempt to cause
the third party to retreat before using deadly force.

PART NINE: DEFENSES TO CRIME: EXCUSES

I. EXCUSE DEFENSES: GENERALLY
A. Excuse: Defined: An excuse defense is one that indicates that,
although the actor committed the elements of the offense, and
although his actions were unjustified wrongfulthe law does not
blame him for his wrongful conduct.
B. Justification versus Excuse: A justification defense tends to focus
on the wrongfulness of an act or a result; an excuse defense focuses
on the actor. The distinction between the two categories of defenses
justifications and excusesis an important one, more fully laid out in
the Main Outline.
C. Underlying Theories of Excuse
1. Deterrence Theory: When a person is insane or coerced to
commit an offense punishment of the actor is wrong because it is
inefficacious
a. The threat of punishment may not deter a person who is
suffering from a mental illness or is acting under duress,
but its infliction may deter misconduct by normal
persons who might otherwise believe that they could
fraudulently convince a jury of their undeterrability.
2. Causation Theory: A person should not be blamed for her
conduct if it was caused by factors outside her control.
a. EX: D should be excused if she commits a crime
because of a mental illness or coercive deadly threat:
She is not to blame for being ill or the victim of coercion
(the cause of her actions) she is not to blame for the
crime itself.
b. She IS to blame and punishable if her criminal conduct
was caused by self-induced intoxication or by any
other factor for which she is responsible.
c. If a person commits a crime solely because she is
threatened with economic ruin, her conduct is
nonetheless NOT legally excused
3. Character Theory: Punishment should be proportional to a
wrongdoers moral desert and that desert should be measured by
the actors character, for circumstances when we cannot infer bad
character from the wrongful conduct (bad act does not mean bad
person)
 a. EX: Dad runs red light to rush dying child to hospital,
Dad crashes and kills someone, terrorist dictated bank
robbery
b. Criticisms: 1) you would have to look at their entire life
to see what their character really was 2) we do punish
with good character 3) it assumes people are
responsible for their character
4. Free Choice Theory: A person may be properly blamed
for conduct if but only if she had the capacity and fair opportunity
to function in a uniquely human way i.e. freely to choose whether
to violate the moral/legal norms of society. It exists if actor has
substantial capacity and fair opportunity to:
a. Understand the facts relating to her conduct
b. Appreciate that her conduct violates societys norms
c. Confirm her conduct to the dictates of the law
d. A person lacking substantial capacity in any of these
regards essentially suffers from some serious
internal disability (i.e. severe mental illness) and therefore
does not deserve to be punished because she
lacks the basic attributes of personhood that qualify her
as a moral agent
e. Criticisms: 1) too narrow, looks at free choice at
moment of the act whereas might be more helpful to
see if had free choice before making the crime
inevitable/outside of their control 2) have to have empathy
to be a moral decision maker and free choice does not take this
into account
II. DURESS
A. Rationale of the Defense: Justification or Excuse?
1. Duress as a Justification Defense: A few courts and
treatises treat duress as if it were sub-species of the necessity
defense and, thus, as a justification defense. According to this
view, the only meaningful difference between necessity and duress is
that the former defense involves natural, i.e., non- human,
pressures, whereas duress involves human-based threats (e.g., a
terrorist demanding an innocent person to commit a crime
against other innocent persons; a criminal forcing an innocent
person to rob a bank).
2. Duress as an Excuse Defense: Most courts and treatises
treat duress as an excuse defense, and not as a justification defense.
Intuitively, most people believe that a coerced person (based on
the definition of duress discussed below) is morally blameless, but
not that she has done nothing wrong. The essence of the duress
defense is that a person is not to blame for her conduct if, because
of an unlawful threat, she lacks a fair opportunity to conform her
conduct to the law.
B. Rationale of the Defense: Utilitarian/Retributive Arguments
1. Utilitarian: When a person is controlled by some coercive
power, the threat of criminal punishment is ineffective, the coercing
party, and not the D, possess a criminal disposition therefore the
coercing party and not the D requires incapacitation and rehabilitation.
2. Retributive: A coerced actor does not deserve to be
punished for her actions. Although the coerced actor possesses free
will she does not possess a fair opportunity to exercise her will to act
lawfully. Duress only excuses when the available choices are not only
hard but also deeply unfair.
C. Distinguishes Duress from Necessity
1. Duress involves human threats, whereas necessity defenses
applies to natural forces
2. Necessity defense is when must choose between lesser of
evils and person makes the correct choices versus Duress which
applies even when the coercers threats overwhelm the actors will so
that she makes the wrong choice
3. Practical consequences: in necessity there is often no
prosecution for the outcome because outcome is socially desirable,
but if a D is excused on the basis of duress, the person who coerces
may be prosecuted for harm caused
C. Common Law
1. Elements of Defense: Generally speaking, a defendant will
be acquitted of an offense other than murder on the basis of duress
if she proves that she committed the offense because: 1) another
person unlawfully threatened imminently to kill or grievously
injure her or another person (often limited to near relatives)
unless she committed the crime; and 2) the actor reasonably
believed that the threat was genuine 3) the threat was present,
imminent, and impending at the time of the criminal act, 4)
there was no reasonable escape from the threat except through
compliance with demands of coercer, and 5) she is not at fault in
exposing herself to the threat.
2. Coerced Homicides: The common law duress defense does
not apply to the offense of murder. The no-defense rule is
sometimes defended on the utilitarian ground that the drive for self-
preservation, although strong, is not irresistible; therefore, people
should be persuaded (by the threat of punishment) to resist such
coercion. The rule is also defended on the moral ground that it is
better to die than to kill an innocent person. However, this latter
argument only serves to show that a person is not justified in killing an
innocent person. It does not explain why a coerced actor should
not be excused on the ground that virtually anyone, short of a
saintly hero, would succumb to the coercion.
3. Intolerable Prison Conditions
 a. The Issue: Suppose a prisoner is threatened by another
inmate with sexual or physical assault, is denied
critical medical care by prison officials, or is placed in some
other intolerable condition. Therefore, the inmate
escapes confinement, but is caught and returned to
prison. She is now prosecuted for the offense of prison
escape. The inmate wishes to avoid conviction by arguing that
she fled as a result of the intolerable prison condition. The
frequently litigated issue is whether the inmate may
make such a claim in court; and, if she may, is her claim
one of necessity (justification) or excuse (duress)?
b. The Law: Originally, courts did not permit inmates to
raise prison conditions as a defense to their escape.
Today most courts recognize a limited defense. Some courts
require the escapee to turn herself in after the escape,
once the prison condition has lost its coercive force, or
else the defense is automatically lost. Other courts are more lenient
and treats an escapees failure to turn herself in as just
one factor to be considered by the jury in determining
whether the escapee should be acquitted.
c. Nature of the Defense: Courts are fairly evenly
divided on the question of whether the defense claim is
basically one of duress or necessity. See the Main
Outline for the conceptual problems and practical
significance relating to framing the defense as a justification
or, alternatively, as an excuse.
D. MPC Duress
1. Defense: The Model Penal Code unambiguously treats duress
as an excuse, and not a justification, defense. Thus, the defense
may be raised although the defendant did not commit the lesser of
two evils. Instead, the defendant must show that: (a) he committed
an offense because he was coerced to do so by another persons
use, or threat to use, unlawful force against him or a third party;
and (b) a person of reasonable firmness in her situation would have
committed the offense. The Code further provides that the defense
is lost if the coerced actor put himself recklessly in a situation in
which it was probable that he would be subjected to duress.
Furthermore, if he was negligent in placing himself in the situation,
the defense is unavailable if he is prosecuted for an offense for
which negligence is sufficient to prove guilt. Also applies if
recklessly placed in situation
2. How Different to CL: MPC is broader defense 1)abandons CL
requirement that the Ds unlawful act must be a response to an
imminent deadly threat (under MPC D may plead duress as a
result of non-deadly and non-imminent threats as long as a person of
reasonable firmness would have committed the offense in Ds
circumstance) 2) defense is one of general applicability, so may be
raised in murder prosecutions 3) MPC does not require that the
imperiled person be the D or a member of Ds family
3. How Similar to CL: 1) defense is limited to threats or use of
unlawful force, therefore it does not apply to coercion arising from
natural sources 2) both do not recognize the defense when an
interest other than bodily integrity is threatened
2. Coerced Homicides: Unlike the common law, there is no bar
to use of the duress defense in murder prosecutions. See the Main
Outline for details of the other distinctions between the common law
and MPC versions of the defense of duress.

III. INTOXICATION
A. Common Law: Voluntary Intoxication
1. Definition of Intoxication: Intoxication may be defined as
a disturbance of an actors mental or physical capacities resulting
from the ingestion of any foreign substance, most notably alcohol
or drugs, including lawfully prescribed medication.
2. Common law has provided wrongdoer very little opportunity to
avoid conviction on the basis of intoxication and the modern
legislative trend is to further reduce the scope of any intoxication
defense.
3. Voluntary Intoxication: when actor is culpable for becoming
intoxicated.
Culpability exists if person knowingly ingests a
substance that she knows or should know can cause him
to become intoxicated, unless the substance was a
prescribed medication or she was coerced to ingest.
After voluntary intoxication, courts are unsympathetic to
claims of unexpected effect (i.e. PCP laced pot).
4. Not an Affirmative Defense: A person is never excused for
his criminal conduct on the ground that he became voluntarily
intoxicated. Indeed, the act of getting intoxicated enhances, rather
than mitigates, culpability.
5. Traditional Common Law Rule - Mens Rea Defense:
Although voluntary intoxication is not an excuse for criminal
conduct, most jurisdictions following the common law provide
that a person is not guilty of a specific-intent offense if, as the
result of voluntary intoxication, he lacked the capacity or
otherwise did not form the specific intent required for the crime.
However, voluntary intoxication does not exculpate for general-
intent offenses.
6. Temporary Insanity: A defendant is not entitled to argue
that, due to voluntary intoxication, he did not know right from
wrong, or did not know what he was doing, at the time of the offense,
even though such a mental state would result in acquittal on insanity
grounds if he suffered from a mental illness.
7. Fixed Insanity: Long-term use of alcohol or drugs can
cause brain damage or cause the individual to suffer from chronic
mental illness. In such circumstances the defendant who seeks
acquittal is not claiming he should be exculpated because he was
voluntarily intoxicated at the time of the crime, but rather that,
because of long-term use of intoxicants, he is insane. Such a claim
is recognized by the common law, but the applicable defense is
insanity, and not intoxication.
B. Model Penal Code: Self-Induced (Voluntary) Intoxication:
Subject to one exception, voluntary intoxication is a defense to any
crime if it negates an element of the offense.
1. Exception to General Rule: If the defendant is charged with
an offense for which recklessness suffices to convict, she cannot
avoid conviction by proving that, because of intoxication, she was
unaware of the riskiness of her conduct. That is, even if the
defendants actual culpability is that of negligenceshe should have
been aware that her conduct created a substantial and unjustifiable
risk of harmshe may be convicted of an offense requiring
recklessness (which ordinarily requires actual awareness of the risk),
if the reason for her failure to perceive the risk is her self- induced
intoxication.
C. Involuntary Intoxication
1. What Makes Intoxication Involuntary?: Intoxication is
involuntary if: (a) coercion: the actor is forced to ingest the
intoxicant; (b) mistake: the actor innocently ingests an intoxicant; (c)
prescribed medication: the actor becomes unexpectedly
intoxicated from ingestion of a medically prescribed drug, perhaps
due to an allergic reaction; or (d) pathological intoxication: the
actors intoxication is grossly excessive in degree, given the
amount of intoxicant, to which the actor does not know he is
susceptible.
2. When Does Involuntary Intoxication Exculpate?
a. Lack of Mens Rea: The defendant will be acquitted if,
as a result of involuntary intoxication, the actor lacks
the requisite mental state of the offense for which she was
charged, whether the offense could be denominated as
specific-intent or general-intent. This is the common law
and MPC rule.
b. Temporary Insanity: Unlike the rule with voluntary
intoxication, a defendant will be exculpated on
the ground of temporary insanity if, due to
involuntary intoxication rather than mental illness,
she otherwise satisfies the jurisdictions insanity test (e.g.,
she did not know right from wrong, or did not understand what
 she was doing, because of involuntary intoxication). This
is the common law and Model Penal Code rule.
IV. INSANITY: Distinguishing the mad from the bad
A. Rationale of Defense
1. Utilitarian Argument: A person who suffers from a severe
cognitive or volitional disorder, i.e., a disorder that undermines
the actors ability to perceive reality (cognition) or to control her
conduct (volition), is undeterrable by the threat of punishment.
Therefore, punishment is inefficacious.
2. Retributive Argument: The insanity defense distinguishes
the mad from the bad; it separates those whom we consider evil
from those whom we consider sick. A person is not a moral agent,
and thus is not fairly subject to moral condemnation, if she lacked
the capacity to make a rational choice to violate the law or if she lacks
the capacity to control her conduct.
B. The MNaghten Test of Insanity
1. Rule: A person is legally insane if, at the time of the act, he
was laboring under such a defect of reason, from disease of the
mind, as: (1) not to know the nature and quality of the act he was
doing (ex. squeezing someones
neck and thinking it was a lemon) ; or, (2), if he did know it, that
he did not know what he was doing was wrong (ex. Brothel Boy)
2. Clarification of the Rule
a. Know versus Appreciate: Although the
MNaghten test originally was phrased in terms of
whether the defendant knew the nature and quality of
his action or knew right from wrong, many
jurisdictions now use the word appreciate. Appreciate is a
word intended to convey a deeper, or broader, sense of
understanding than simple knowledge.
3. Right/Wrong Prong: Courts have split fairly evenly on
whether this prong refers to legal or moral wrongfulness. In
jurisdictions that use the moral wrong test, the relevant issue
is not whether the defendant believed that his act was morally
right, but rather whether he knew (or appreciated) that society
considered his actions morally wrong.
i. Deific Decree: for jurisdictions that apply the moral
right and wrong doctrine, a mentally disordered individual
who believes that she is acting on the direct command of
God (not simply with Gods approval) is deemed legally
insane
4. Criticisms of the Test: 1) it is grossly unrealistic because it
does not recognize the varying degrees of mental illness 2)
narrowly tight shackles upon psychiatric expert testimony 3)
outdated because it disregards mental illnesses that affect
 volition 4) test is too narrow in terms of penological theory (aka
if a person cannot control their conduct, they are undeterrable)
C. The Irresistible Impulse (Control) Test of Insanity
1. Rule: In general, this supplement to MNaghten provides that
a person is insane if, as the result of mental illness or defect, she
acted with an irresistible and uncontrollable impulse, or if she lost
the power to choose between . . . right and wrong, and to avoid
doing the act in question, as that [her] free agency was at the time
destroyed.
2. Criticisms of the Test: 1) too narrow: it is improper to
exclude non-impulse behavior (i.e. behavior that is the result of
brooding and reflection), and that is psychologically nave to
require total incapacity 2) too broad: urge shouldnt excuse
people (b/c an insane person and a repeat rapist both have
urges) but rather mental defect should excuse people 3)
psychiatrists dont possess sufficient accurate bases for
measuring a persons capacity for self-control
D. The Product (Durham) Test of Insanity only in NH
1. Rule: A person is excused if his unlawful act was the product
of a mental disease or defect. As subsequently defined, mental
disease or defect is any abnormal condition of the mind which
substantially affects mental or emotional processes and
substantially impairs behavior controls. Thus, to be acquitted
according to this rule, two matters must be proved: the defendant
suffered from a mental disease or defect at the time of the crime;
and, but for the mental disease or defect, he would not have
committed the crime.
2. Criticisms of the test: 1) allowed psychiatrists to usurp the
jurys authorityjuries dont understand medical testimony well
2) excludes from criminal responsibility some deterrable and
morally blameworthy actors even though insane 3) could use a
psychiatrist to bring up any sort of mental illness as a defense 4)
originally didnt define mental disease or defect but this was
resolved
E. MPC 4.01
1. Rule: The MPC test represents a broadened version of the
MNaghten and irresistible impulse tests. With modifications, it
retains the second prong of MNaghten and adds to it a volitional
prong. The Code provides that a person is not responsible for her
conduct if, at the time of the criminal act, as the result of a mental
disease or defect (a term left undefined), she lacked the substantial
capacity either: (1) to appreciate the criminality (or, in the alternative,
wrongfulness) of her actions; or (2) to conform her conduct to the
dictates of the law.
i. Variant of the MNaghten test but a little broader
2. Closer Analysis
 a. Avoiding All-or-Nothing Judgments:Both MPC prongs
are modified by the phrase lacks substantial
capacity. Total cognitive or volitional incapacity is not
required.
b. Cognitive Prong: First, the Code uses the word
appreciate rather than MNaghtens know, to
permit a deeper, fuller analysis of the individuals
cognitive capacity. Second, the drafters chose not to
decide between legal wrong and moral wrong: they invited
legislators, in adopting the Code provision, to
choose between the words criminality (legal wrong)
and wrongfulness (moral wrong).
c. Volitional Prong: This prong is phrased to avoid the
undesirable or potentially misleading words irresistible and
impulse. A person who has a very strong, but not
irresistible, desire to commit a crime, including one
who acts non-impulsively after considerable thought, can
fall within the language of the MPC.
3. Criticisms of the Test: 1) outdated psychological
assumption that the human mind is divisible into volitional and
cognitive functions 2) psychiatric knowledge is unduly restrictive
in the court room 3) people who like a narrower definition are
critical of the volitional prong
F. Bazelon
1. Rule: A defendant is not responsible if at the time of his
unlawful conduct his mental or emotional processes or behavior
controls were impaired to such an extent that he cannot justly be
held responsible for his act.
2. Purpose: Want to focus the jurys attention on the legal and
moral aspects of criminal responsibility, and to make clear, why
the determination of responsibility is entrusted to the jury and
not the expert witnesses
V. DIMINISHED CAPACITY
A. Putting Diminished Capacity in Context
1. Mens Rea Version: A defendant may potentially raise a
claim of diminished capacity in order to show that he lacked the
requisite mens rea for an offense. In that manner, diminished
capacity works like mistake-of- fact or voluntary intoxicationit
does not excuse the wrongdoer, but serves to show that the
prosecutor has failed to prove an essential element of an offense.
2. Partial Responsibility Version: Diminished capacity may
also serve as a highly controversial excuse defense, used
exclusively in criminal homicide prosecutions, as a basis for
reducing the severity of the offense.
B. Diminished Capacity and Mens Rea: A sane person may suffer
from a mental disability (e.g., mental illness, mental retardation,
Alzheimers) that arguably prevents him from forming the mental state
required for the commission of an offense. This is not an affirmative
defense, but rather just negates the mens rea element.
1. Model Penal Code Approach (Defense to All Crimes): As
a matter of logic, a defendant should be acquitted of any offense
for which he lacked the requisite mens rea, including those cases
in which he lacked the mental state because of a mental
disability, whether that disability is permanent or
temporary. This is the position taken by the Model Penal Code.
2. Common Law: Logic notwithstanding, most states permit
evidence of an abnormal mental condition, if at all, in order to
negate the specific intent in a specific-intent offense. Psychiatric
evidence is inadmissible in the prosecution of general-intent
offenses. Clark v. Arizona
a. A minority of jurisdictions do not permit diminished
capacity to be claimed in any case.
b. Ex. Gentleman leaves mental hospital, enters wrong
house and starts living in the house while the family was
on vacation. He moves furniture around, cooks meals. D
charged with burglary but held that clearly proved mental
illness negated specific intent nature of the crime. People v.
Whitmore
C. Partial Responsibility
1. Common Law: In this country, the partial defense was
originated in California and adopted by a small number of other
courts. This rule, no longer followed in California, provides that a
person who commits a criminal homicide and suffers from some
mental illness or abnormality short of insanity may have her
offense reduced because of her diminished mental capacity. States
that recognize the partial-responsibility claim permit reduction of the
offense from first-degree to second-degree murder, or from
murder to manslaughter. The underlying rationale of the partial
responsibility doctrine is that a person who does not meet a
jurisdictions definition of insanity, but who suffers from a mental
abnormality, is less deserving of punishment than a killer who acts
with a normal state of mind. Therefore, she should be convicted of a
lesser offense.
2. Model Penal Code: The Code provides that a homicide that
would otherwise be murder is reduced to manslaughter if the
homicide was the result of extreme mental or emotional
disturbance for which there is a reasonable explanation or excuse.
This language is intended to permit courts to recognize a partial
responsibility defense.

PART TEN: INCHOATE CONDUCT

I. Inchoate Offenses: Incomplete or unsuccessful
A. Three types: Attempt, solicitation, and conspiracy
1. Rationale: These offenses are for law enforcement purposes
we want
police officers to stop a crime before it happens. Police
opportunity to arrest v. letting police step in too earlyarresting
an innocent person who seemed to be acting suspiciously v. the
retributive theories of goodwill and the to change their mind.
II. ATTEMPT
A. Common Law
1. General Principles
a. Basic Definition: In general, an attempt occurs when a
person, with the intent to commit a criminal offense,
engages in conduct that constitutes the beginning of
the perpetration of, rather than mere preparation for,
the target (i.e., intended) offense.
i. Criminal attempts are of 2 varieties, incomplete
and complete. In the former case, the actor does
some of the acts that she set out to do, but then
desists or is prevented from continuing by an
extraneous factor, like the intervention of a police
officer. For a completed attempt, the actor does
every act planned, but is unsuccessful in producing
the intended result, like she shoots and misses the
intended victim.
b. Grading of Offense: A criminal attempt was a
common law misdemeanor in England,
regardless of the seriousness of the target offense.
Today, modern statutes provide that an attempt to commit a
felony is a felony, but it is considered a lesser felony that
the target offense.
c. Merger Doctrine: A criminal attempt merges into the
target offense, if it is successfully completed.
d. Rationale: The principal purposed behind punishing an
attempt is not deterrence. The threat posed by the
sanction for an attempt is unlikely to deter a person willing
to risk the penalty for the object crime. Instead, the
primary function of the crime of attempt is to provide a
basis for law enforcement officers to intervene before an
individual can commit a completed offense.
2. Actus Reus: There is no single common law test of when an
attempt occurs. Typically, the common law tests focus on how close
the actor is to completing the target offense.
a. Last Act Test: The rule used to be that a criminal
attempt only occurred when a person performed all of
the acts that she believed were necessary to commit
the target offense. Today, there is general agreement
that and attempt occurs at least by the time of the last act,
but no jurisdiction requires that it reach this stage on all
occasions.
b. Dangerous Proximity Test: Oliver Wendell Holmes
announced the dangerous proximity to success test. This
standard is not satisfied unless the conduct is so
near to the result that the danger of success is very
great. In this regard, courts consider three factors: the
nearness of the danger; the substantiality of the harm; and
the degree of apprehension felt. The more serious the
offense, the less close the actor must come to
completing the offense to be convicted of attempt.
c. Physical Proximity Test: To be guilty of attempt under
this test, an act must go so far that it would result, or
apparently result in the actual commission of the
crime it was designed to effect, if not
extrinsically hindered or frustrated by extraneous
circumstances. Or, stated differently, the actors
conduct must approach sufficiently near to the completed
offense to stand either as the first or some
subsequent step in a direct movement toward the commission of
the offense after the preparations are made.
i. D arrives with loaded gun but no victim= not
guilty; however, if victim arrives then this is an
attempt
d. Indispensable element Test: has the actor done the
last indispensable element required for the offense
e. Unequivocality/Res Ipsa Loquitur Test/: This
test provides that a person is not guilty of a criminal
attempt until her conduct ceases to be equivocal, i.e.,
her conduct, standing alone, demonstrates her criminal
intent.
i. The point at which you unequivocally know what
the D is going to do
f. Probable Desistance Test: A person is guilty of
attempt if she has proceeded past the point of no
return, i.e., the point past which an ordinary person
is likely to abandon her criminal endeavor.
3. Mens Rea
a. Dual Intent: A criminal attempt involves two intents.
First, the actor must intentionally commit the acts that
constitute the actus reus of an attempt. Second, the
actor must commit the actus reus of an
attempt with the specific intent to commit the target
offense.
 b. Comparing Mens Rea of Attempt to Target
Offense: An attempt sometimes requires a higher level
of mens rea than is necessary to commit the target
offense. Second, attempt is a specific-intent offense,
even if the target crime is general-intent.
c. Special Problem: Attendant Circumstances: At
common law, it is unclear what mens rea, if any, an
actor must possess regarding an attendant circumstance
to be guilty of attempt. Some courts hold that a person
may be convicted of a criminal attempt if he is, at least,
reckless with regard to an attendant circumstance. Other courts
believe that it is sufficient that the actor is as
culpable regarding an attendant circumstance as is
required for that element of the target crime. See the
Main Outline for clarification.
4. Special Defense: Impossibility
a. General Rule: The common law distinguished between
factual and legal impossibility. The latter was a
defense to an attempt; the former was not.
b. Factual Impossibility: Factual impossibility, which is
not a defense, may be defined as occurring when an
actors intended end constitutes a crime, but he fails to
complete the offense because of a factual circumstance
unknown to him or beyond his control. One way to
phrase this is: if the facts had been as the defendant believed them
to be, would his conduct have constituted a crime? If
yes, then this is a case of factual impossibility.
EX. Shooting someone who is already dead,
pickpocketing someone with nothing in his pocket
Inherent Factual impossibility (Defense minority) if
the method used to accomplish the crime is one that a
reasonable person would view as completely inappropriate
to the objectives sought. Ex. Attempting to sink a ship with
a pop gun
c. Legal Impossibility:There are two varieties of legal
impossibility. When Ds conduct, even if fully carried out
as D desired, would not constitute a crime., it is legally
impossible.
i. Pure Legal Impossibility: This form of
impossibility applies when an actor engages in
lawful conduct that she incorrectly believes
constitutes a crime.
When the actions, which the defendant performs or
sets in motion, even if fully carried out as he desires,
would not constitute a crime.
 ii. Hybrid Legal Impossibility: The more typical
case of legal impossibility occurs when an
actors goal is illegal (this distinguishes it
from pure legal impossibility), but commission of the
offense is impossible due to a mistake by the actor
regarding the legal status of some factual circumstance
relevant to her conduct. See the Main Outline
for examples.
5. Abandonment: At Common Law, no such defense exists.
B. MPC 5.01
A. General Principles
a. Grading of Offense: Unlike the common law and non-
MPC statutes, the MPC generally treats inchoate
offenses as offenses of the same degree, and thus
subject to the same punishment, as the target offense.
The one exception is that, for a felony characterized as
a felony of the first degree under the Codebasically,
an offense that carries a maxi- mum punishment of life
imprisonmentan attempt to commit such an offense is
a felony of the second degree, i.e., a lesser offense.
b. Merger: The common law merger doctrine applies as
well under the Code.
c. Elements of the Offense: A criminal attempt occurs
under the Code when (1) the purpose to commit the
target offense; and (2) conduct constituting a
substantial step toward the commission of the target
offense.
i. To analyze an attempt issue under
5.01(1), we ask: (1) does the case involve a
complete or incomplete attempt? (2) If it
involves a complete attempt, is the target
offense a result or conduct crime?
5.01(1A+B) are for completed offenses and
(1C) is for incomplete offenses
B. Actus Reus MPC 5.01(2): The Code abandons all of the
common law tests described above and replaces them with a
substantial step standard. Specifically, one has gone far
enough to constitute an attempt if the act or omission
constitutes a substantial step in the course of conduct
planned to culminate in the commission of the crime. One
significant difference between the substantial step test and
the various common law standards is that, in general, the
common law looked to see how close the defendant was to
completing the crime, whereas the MPC looks to see how far
the defendants conduct has proceeded from the point of
 initiation of the target offense. D does not have to be close to
committing the crime to be convicted of an attempt.
C. Mens Rea
a. Rule: The Code uses slightly different language than
the common law, but the analysis is essentially the
same. A person is not guilty of attempt unless he:
purposely engages in conduct that would constitute
the crime; acts with the purpose of causing or with
the belief that it will cause the criminal result; or
purposely does . . . an act . . . constituting a substantial
step in furtherance of the offense. In short, purpose
is the mens rea for a criminal attempt.
i. A person is also guilty of an attempt to
cause a criminal result if D believes that
the result will occur, even if it was not Ds
conscious object (ex. bomb on a plane
wants to kill wife + believes it will kill
others, guilty of attempt for all)
b. Special Problem: Attendant Circumstances: The
purpose requirement for an attempt does not apply to
attendant circumstances. As to attendant
circumstances, a person is guilty of an attempt if she
act[s] with the kind of culpability otherwise required for
commission of the [target] crime. In short, the actor
need only be as culpable regarding an attendant
circumstance as is required for the target offense.
D. Special Defense: Impossibility The MPC has abandoned
the hybrid legal impossibility defense. Pure legal impossibility
remains a defense.
E. Special Defense: Renunciation of Criminal Purpose The
Code recognizes defense of renunciation of criminal
purpose. A person is not guilty of a criminal attempt, even if
her actions constitute a substantial step in the commission
of an offense, if: (1) she abandons her effort to commit the
crime or prevents it from being committed; and (2) her
conduct manifests a complete and voluntary renunciation
of her criminal purpose. This defense is some- times described
as the abandonment defense.
i. Abandonment cannot be temporary, it must be
complete.
ii. Voluntary: Not voluntary if it is motivated in whole or
in part by circumstances not present or apparent at the
inception of the actors course of conduct, that
increases the probability of detection or apprehension or
that makes more difficult the accomplishment of the
criminal purpose.
 iii. Complete: Not complete if it is motivated by a decision
to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to
another but similar objective or victim.
II. CONSPIRACY
A. Common Law
1. General Principles
a. Definition: A common law conspiracy is an agreement
between two or more persons to commit an unlawful act
or series of unlawful acts. Agreement requires a specific intent
to commit the target
offense.
b. Grading: At original common law, conspiracy was a
misdemeanor. Today, conspiracy to commit a felony is
usually a felony, but typically is a lesser offense than
the target crime.
c. Rationale of the Offense
i. Preventive Law Enforcement: Like other
inchoate offenses, recognition of the offense of
conspiracy provides a basis for the police to arrest people
before they commit another offense.
ii. Special Dangerousness: Group criminality is
considered more dangerous than individual
wrongdoing. The thesis is that when people
combine to commit an offense, they are more
dangerous than an individual criminal, because of their
combined resources, strength, and expertise.
They are also thought to be less likely to abandon
their criminal purpose if they know that other
persons are involved.
d. Merger: A common law conspiracy does not merge into
the attempted or completed offense that is the
object of the agreement.
2. Actus Reus: Basics: The gist of a conspiracy is the
agreement by the parties to commit an unlawful act or series of
unlawful acts together.
a. Overt Act: A common law conspiracy is committed as
soon as the agreement is made. No act in
furtherance of it is required. Today, many statutes provide
that a conspiracy does not occur unless at least one
party to the agreement commits an overt act in furtherance of it.
b. Method of Forming the Agreement: The
conspiratorial agreement need not be in writing, nor even be
verbally expressed. It may be implied from the
actions of the parties.
 c. Nature of Agreement: The object of the agreement
must be unlawful. For purposes of conspiracy, an
unlawful act is a morally wrongful act; it need not be a
criminal act.
3. Mens Rea: The Basics
a. General Rule: Conspiracy is a dual-intent offense. First,
the parties must intend to form an agreement (the actus
reus of the conspiracy). Second, they must intend
that the object(s) of their agreement be achieved. This
second intent makes conspiracy a specific-intent
offense.
b. Purpose versus Knowledge
i. The Issue: An issue that arises in some
conspiracy prosecutions is whether a person
may be convicted of conspiracy if, with
knowledge that another person intends to
commit an unlawful act, but with indifference as to whether the
crime is committed, he furnishes an
instrumentality for that offense or provides a
service to the other person that aids in its
commission.
ii. Case Law: The law is split on this issue. Most
courts, however, will not convict a person
unless he acts with the purpose of promoting or
facilitating the offense. Knowledge, coupled
with indifference as to whether the offense is
committed, is insufficient. But, sometimes one can infer
purpose from knowledge.
4. Plurality Requirement: No person is guilty of conspiracy
unless two or more persons possess the requisite mens rea.
However, the plurality doctrine does not require that two persons
be prosecuted and convicted of conspiracy. It is satisfactory that
the prosecutor proves beyond a reasonable doubt that there were
two or more persons who formed the agreement with the
requisite mens rea.
i. Ex. If A + B agree to kills C, and A is found to insane, B is
free of conspiracy because there are not two people with
requisite intent.
5. Parties to an Agreement: Even if it is clear that a
conspiracy exists, it is sometimes difficult to determine who is a
party to the conspiracy. Two forms of conspiracy agreements that
we studied:
i. Chain conspiracy: because the parties should know by
the large, ongoing nature of the conspiracy that the other
members exists, and because the various links have a
community of interest in that the success of one members
 party is dependent upon the success of the whole
enterprise, courts have treated links as co-conspirators
despite the lack of communication/ contact with one
another (ex. drug operations)
ii. Wheel: there is usually a hub or common source of
the conspiracy, who deals individually with different
persons, spokes, who do not know each other People v.
Kilgore
6. Objectives of a Conspiracy Since the gist of a conspiracy is
an agreement, what if the parties to the agreement intend to
commit more than one offense. Is this one conspiracy or more? In
general, there are as many (or as few) conspiracies as there are
agreements made.
7. Special Defense: Whartons Rule
a. Rule: If a crime by definition requires two or more
persons as willing participants, there can be no conspiracy
to commit that offense if the only parties to the agreement are
those who are necessary to the commission of the underlying
offense. This is Whartons Rule, a common law defense
to conspiracy.
b. Whartons Rule Exceptions: There are two major
exceptions: (1) Whartons Rule does not apply if the two
conspirators are not the parties necessary to
commission of the offense; and (2) Whartons Rule does
not apply if more persons than are necessary to commit the
crime are involved in the agreement to commit the crime.
c. Breakdown of the Rule: Whartons Rule is increasingly
disliked by courts. The Supreme Court has stated that in
federal courts the doctrine is no more than a
judicially-created rebuttable presumption. If there is
evidence that the legislature intended to reject Whartons
Rule, then the doctrine will not be enforced.
8. Special Defense: Legislative-Exemption Rule A person
may not be prosecuted for conspiracy to commit a crime that is
intended to protect that person. (ex. Mann Act)
9. Special Defense: Impossibility: Case law here is
particularly thin, but it has been stated that neither factual
impossibility nor legal impossibility is a defense to a criminal
conspiracy.
10. Special Defense: Abandonment
a. No Defense to Crime of Conspiracy: At common law,
the crime of conspiracy is complete as soon as the
agreement is formed by two or more culpable persons.
There is no turning back from that. Once the offense of
conspiracy is complete, abandonment of the criminal plan
by one of the parties is not a defense to the crime of conspiracy.
 b. Relevance of Abandonment: Although abandonment,
or withdrawal, from a conspiracy is not a defense
to prosecution of the crime of conspiracy, a person who
withdraws from a conspiracy may avoid conviction for
subsequent offenses committed in furtherance of the
conspiracy by other members of the conspiracy, if the abandoning
party communicates his withdrawal to every other
member of the conspiracy (a near impossibility in many-
member conspiracies).
B. MPC 5.03
1. General Principles
a. Definition: The MPC provides that a person is guilty of
conspiracy with another person or persons to commit a
crime if that person, with the purpose of promoting or
facilitating commission of the crime, agrees with
such other person or persons that they or one or more
of them will engage in conduct that constitutes such crime or an
attempt or solicitation to commit such crime, or if that
person agrees to aid the other person or persons in
commission of the offense or of an attempt or
solicitation to commit such crime.
b. Grading: A conspiracy to commit any offense other
than a felony of the first degree is graded the same as
the crime that is the object of the conspiracy.
c. Merger: Unlike the common law, a conspirator may not
be convicted of both conspiracy and the target
offense(s), unless the conspiracy involves a continuing
course of conduct.
2. Actus Reus: How It Differs from Common Law
a. Overt Act: In contrast to the common law, an overt act
is required except for felonies of the first and second
degree.
b. Nature of Agreement: In contrast to the common law,
the object of the agreement must be a crime, and not
merely an unlawful act.
3. Mens Rea: A person is not guilty of conspiracy unless she
acts with the purpose of promoting or facilitating the commission
of the conduct that constitutes a crime. One who furnishes a
service or instrumentality with mere knowledge of anothers
criminal activities is not guilty of conspiracy.
4. Plurality Rule: The most influential feature of the MPC is its
rejection of the common law plurality requirement. The Code
defines the offense in unilateral terms: A person is guilty of
conspiracy with another person . . . [if he] agrees with such other
person. . . . It takes two people to agree, but it takes only one
person to be guilty of conspiracy.
 5. Parties to Agreement: Two aspects of the Code need to be
kept in mind in determining the parties to a conspiracy. First,
conspiracy is a unilateral offense, as discussed above. Second, the
MPC provides that if a person guilty of conspiracy knows that the
person with whom he has conspired has, in turn, conspired with
another person or persons to commit the same crime, the first
person is also guilty of conspiring with the other persons or person,
whether or not he knows their identity. See the Main Outline for a
discussion of how these provisions work to determine whether a
person is party of an existing conspiracy.
6. Objectives of a Conspiracy: The Code provides that there is
only one conspiracy between parties, even if they have multiple
criminal objectives, as long as the multiple objectives are part of the
same agreement or of a continuous conspiratorial relationship.
7. Special Defenses: The MPC does not recognize Whartons
Rule, nor any impossibility defense.
a. Legislative-Exemption Rule: The Code provides that
it is a defense to a charge of conspiracy that if the criminal
object were achieved, the actor would not be guilty of a
crime under the law defining the offense or as an
accomplice. The effect of this language is to permit a
defense if enforcement of the conspiracy law would frustrate a
legislative intention to exempt that party from
prosecution.
b. Renunciation of Criminal Purpose: A person is not
guilty of conspiracy under the Code if he renounces his
criminal purpose, and then thwarts the success of the
conspiracy under circumstances manifesting a complete
and voluntary renunciation of his criminal purpose.

PART ELEVEN: COMPLICITY

I. ACCOMPLICE LIABILITY: COMMON LAW
A. General Principles
1. General Rule: Subject to clarification below, a person is
an accomplice in the commission of an offense if she
intentionally assists another person to engage in the
conduct that constitutes the offense.
2. Accomplice Liability as Derivative Liability:
Accomplice liability is derivative in nature. That is, an
accomplices liability derives from the primary party to
whom she provided assistance. The accomplice is
ordinarily convicted of the offense committed by the
primary party.
3. Justification for Derivative Liability: Accomplice
liability is loosely based on the civil concept of agency.
That is, when a person Intentionally assists another person
 in the commission of an offense, she manifests thereby her
willingness to be held account- able for the conduct of the
other person, i.e., she allows the perpetrator of the crime
to serve as her agent. Essentially, your acts are my
acts.
4. Common Law Terminology: There are four common law
categories of parties to criminal offenses.
a. Principal in the First Degree: He is the
person who, with the requisite mens rea,
personally commits the offense, or who uses an
innocent human instrumentality to commit it.
The innocent instrumentality doctrine
provides that a person is a principal in the first
degree if she dupes or coerces an innocent
human being to perform the acts that
constitute an offense.
b. Principal in the Second Degree: She is the
person who intentionally assists the principal in
the first degree to commit the offense, and
who is actually or constructively present during
its commission. A person is constructively
present if she is close enough to assist the
principal in the first degree during the crime.
c. Accessory Before the Fact She is one who
intentionally assists in the commission of the
offense, but who is not actually or
constructively present during its com- mission.
d. Accessory After the Fact She is one who
knowingly assists a felon to avoid arrest, trial,
or conviction.
B. What Makes a Person an Accomplice: Assistance: A person
assists in an offense, and thus may be an accomplice in its
commission, if she solicits another to commit a crime (A asks B to
commit a crime and B does), furnishing an instrumentality (gives the
gun), furthering a service (D uses expertise to drive getaway car),
lends moral encouragement to another person to commit the crime
(hip, hip, hooray! go kill him), or if she aids in its commission.
1. If No Assistance: A person is not an accomplice unless her
conduct in fact assists in commission of the crimeattempting to
assist not recognized
under common law.
2. Trivial Assistance: If a person intentionally aids in the
commission of an offense, she is liable as an accomplice,
although her assistance was trivial. Indeed, an accomplice is
liable even if the crime would have occurred without her assistance,
i.e., she is guilty although her assistance did not cause the
 commission of the offense. Because any actual assistance, no
matter how trivial, qualifies, a person may be an accomplice
merely by providing psychological encouragement to the
perpetrator.
3. Presence at the Scene: A person who is present at the
scene of a crime, even if she is present in order to aid in commission
of the offense, is not an accomplice unless she in fact assists in
the crime. Although mere presence does not constitute
assistance, it does not take much to convert presence into trivial
assistance. In some circumstances, a persons presence could provide
psychological encouragement to the principal, which is enough
to trigger accomplice liability.
4. Omissions: Although a person is not generally an accomplice
if she simply permits a crime to occur, one may be an accomplice
by failing to act to prevent a crime when she has a duty to so act.
C. What Makes a Person an Accomplice: Mens Rea
1. Rule: A person is an accomplice in the commission of an
offense if she possesses two mental states. She must: (1)
intentionally engage in the acts of assistance; and (2) intent that the
primary party commit the target offense.
2. Crimes of Recklessness or Negligence: The prosecutor
does not have to prove that the accomplice intended a crime of
recklessness to occur: it is enough that she was reckless in regard
to the ensuing harm; as for a crime of negligence, it is enough to
show that the would-be accomplice was negligent in regard to the
ensuring harm.
3. Natural-And-Probable-Consequences Doctrine: An
accomplice is guilty not only of the offense she intended to
facilitate or encourage, but also of any reasonably foreseeable
offense committed by the person whom she aided. That is, once the
prosecutor proves that A was an accomplice of P in the commission
of Crime 1 (using the analysis discussed so far), A is also responsible
for any other offense committed by P that was a natural and
probable consequence of Crime
4. Purpose v. Knowledge: Most jurisdictions and MPC believe
that purpose (i.e. conscious object) is required, but some have
just knowledge. But, it is enough to be guilty as an accomplice if
the person knows that a person is going to commit the target
offense, thereby implying purpose.
D. Accomplice Liability: If the Perpetrator Is Acquitted
1. If No Crime Occurred: If a jury finds that the alleged crime
never occurred and, therefore, acquits the principal in the first
degree, it logically follows that any accomplice must be acquitted
as well, as there is no guilt to derive one cannot be an
accomplice to a nonexistent crime.
 2. If Perpetrator Is Acquitted on Grounds of a Defense If a
jury acquits the alleged perpetrator of a crime on the ground that
he was justified in his actions, then the accomplice should also be
acquitted, as this means she aided in a justified (proper) act. But, if
the jury acquits the perpetrator on the ground of an excuse, the jury
has determined that a crime has occurred. The perpetrators excuse
claim is personal to him, and should not protect the accomplice.
E. Perpetrator and Accomplice: Degrees of Guilt: The common
law rule used to be that an accessory before the fact could not
be convicted of a more serious offense, or a higher degree of an
offense, than that for which the principal was convicted. (It has
nearly always been the case that an accomplice may be
convicted of a lesser degree of crime than the principal in the
first degree.) This rule is breaking down. Even in an earlier era,
however, most courts treated criminal homicides differently: on
the proper facts, courts were and are prepared to convict an
accomplice of a higher degree of criminal homicide than the
perpetrator.
F. Special Defense: Legislative-Exemption Rule: A person may
not be convicted as an accomplice in her own victimization.
G. Strict Liability: Accomplice must purposefully intend the result to
be held liable.
II. CONSPIRACY LIABILITY
A. The Pinkerton Doctrine: At common law, a person may be held
accountable for the actions of others either as an accomplice,
discussed above, or as a conspirator. A controversial feature of
conspiracy law in many jurisdictions is the Pinkerton doctrine, named
after the Supreme Court ruling in Pinkerton v. United States. This
doctrine provides that a conspirator is responsible for any crime
committed by any other member of the conspiracy, whether or not he
assisted, if the offense falls within the scope of the conspiracy or a
reasonably foreseeable consequence thereof.
III. MPC
A. Forms of Complicity Liability
1. Innocent-Instrumentality Doctrine: A person is guilty of an
offense that she did not personally commit if, acting with the
requisite mens rea, she causes an innocent or irresponsible
person to commit the crime. This is equivalent to the common
law innocent-instrumentality rule discussed earlier.
2. Accomplice Liability: A person is guilty of an offense that
she did not personally commit if she is an accomplice of another
person in the commission of the offense.
3. Pinkerton Rule:The Pinkerton conspiracy doctrine discussed
above is not recognized in the Code.
B. What Makes a Person an Accomplice: Assistance
 1. Rule: To be an accomplice in the commission of an offense,
the person must: (a) solicit the offense; (b) aid, agree to aid, or
attempt to aid in its commission; or (c) fail to make a proper effort
to prevent commission of the offense (assuming that she has a
legal duty to act). See the Main Outline for a comparison of the MPC
to the common law.
C. What Makes a Person an Accomplice: Mens Rea
1. Rule: To be an accomplice, the person must act with the
purpose of promoting or facilitating the commission of the
offense. D must have a dual intent: (1) intend to do the acts
that constitute the assistance and (2) purpose of that assistance
of promoting or assisting the commission of the crime
2. Exception to the Requirement of Purpose: The MPC
handles the issue of accomplice liability for a crime of recklessness
or negligence with the following provision: A person who is an
accomplice in the commission of conduct that causes a criminal
result, is also an accomplice in the result thereof, if she has the level of
culpability regarding the result required in the definition of the
offense. See the Main Outline for an example of how this provision
works.
D. Accomplice Liability: If the Perpetrator Is Acquitted: The
Code provides that an accomplice in the commission of an offense may
be convicted of that offense, even if the alleged perpetrator has been
convicted of a different offense or degree of offense or . . . or has been
acquitted. One must be very careful in reading this provision: if there
has been no offense, then one is not an accomplice in the commission
of the offense.
E. Special Defenses
1. Legislative-Exemption Rule: Like the common law, the MPC
applies the legislative-exemption rule.
2. Inevitable Incidence: An accomplice is not guilty of an
offense if her conduct is an inevitable incident to the commission
of the offense, such as a customer in the act of prostitution.
3. Abandonment: A person is not an accomplice in the
commission of a crime if she terminates her participation before the
crime is committed, and if she either neutralizes her assistance,
gives timely warning to the police of the impending offense, or in
some other manner prevents commission of the crime.
F. Special Provision to Consider. Relationship of Accomplice
Liability to Criminal Attempts The Code goes well beyond the
common law by permitting an accomplice to be convicted of a criminal
attempt, if she attempts to aid in commission of an offense, although
the other person does not commit or even attempt the offense.
G. Strict Liability: Both primary and accomplice are held strictly
liable.
 Common Law MPC
Conduct Intent = purpose Purpose
Result As required by the As required by the
substantive offense substantive offense
(2.06(4))
Attendant Unspecified Unspecified
Circumstance