BASIC REQUIREMENTS FOR CRIMINAL LIABILITY

a. ACTUS REUS (pp173-182)Culpable Conduct

i. VOLUNTARY ACTS are movements of the physical bodycannot
be punished for thoughts or intentions
ii. INVOLUNTARY ACTS are bodily movements which are not
controlled by the conscious mind.
iii. Martin v State
1. Martin arrested at his home and taken out onto the highway
where he acted drunk. He was charged with drunkenness
in a public place.
2. Issue. May a person be guilty of a crime where his conduct
was not voluntary?
3. Conviction reversed
iv. MPC 2.01(1)
1. A person is not guilty of a crime unless his liability is based
on conduct which includes a voluntary act or the omission to
perform an act of which he is capable.
2. The following are not voluntary acts:
a. Reflex or convulsion
b. Bodily movement during unconsciousness or sleep
c. Conduct during hypnosis
d. Bodily movement that is not a product of the actor
v. People v Newton
1. Newton shot and killed an officer after he was shot. Newton
claimed he was unconscious when he shot the officer.
2. Issue. Should the jury have been instructed about
unconsciousness as a defense?
3. Judgement for Newton. Unconsciousness is a defense to
murder under the MPC.
vi. People v. Decina
Was driving and had an epileptic sezure. Killed someone and
prosecuted for vehicular homicide He knew of the possibility of a
sezure, but drove anyway. A reasonable person wouldnt have done
this.
b. OMISSIONS (pp182-197)-Criminal liability for a failure or forebearance
to act
i. Types of liability for omissions
1. statutes describe what is a legal duty to act
2. commission by omission: causing or bring about harm. That
person has caused the harm by failing to stop it.
3. Exceptions to the no-liability rule:
Statutory duty creates a duty to act (eg parents must
provide children with food
Status relationship. Spousal relationship, care giver,
etc
Contractual obligations
Omissions following an act.

Creation of risk. If negligently injure someone, must

help them
Voluntary assistance. If you take someone from
public and seclude them, then you have a duty to care
for them. In People v Oliver guy took drunk guy
from public.

ii. MPC 2.01(3)

1. Liability for the commission of an offense may not be based
on an omission unaccompanied by action unless:
a. The omission is expressly made sufficient by the law
defining the offense
b. A duty to perform the omitted act is otherwise
imposed by law.
iii. Jones v US
1. Jones took into her care a woman and her child. The mother
of did not feed her child, so the child died. There was
conflict as to whether Jones had a duty to care for the child
2. Issue. The government had to prove that Jones had a legal
duty to act on the childs behalf.
3. Court held that Jones did not have a legal duty to act because
the mother was present and she was not responsible to usurp
the mothers power.
iv. Breach of legal duty to care arises in 4 situations
1. Where a statute imposes the duty of care
2. Where one stands in a certain status relationship to another
3. Where one has assumed a contractual duty to care for
someone, or
4. Where one has voluntarily assumed the care of another and
has removed the helpless person from others who could
render aid.
v. Pope v State
1. Pope took a mother and daughter into her home a mother and
daughter. The mother had violent episodes and beat and
ripped her child that night. The child died of those injuries.
Pope was convicted of child abuse and misprision
(concealment) of a felony.
2. Issue. Is a person guilty of child abuse if they fail act when
that child is being abused, and that person does not have
legal parental control over the child
3. Court stated NO. She was not the parent, nor was she
reponsible for supervision of the child.
HYPO: You stand around and watch a child drown. There is no
commission of crime by omitting to save the child. There is a line
drawing problem between someone who is morally vicious and

when some just is not aware. And how far will an omission that
causes death extend (starving beggar who you didnt give food dies).
c. MENS REA (pp 203-217)
an unwarrantable crime without vicious will is no crime at all.
Definitions:
IntentA person has intentionally caused a social harm
when 1) it is his desire (conscious object) to cause the harm
2) he acts with the knowledge that the social harm is certain
to occur (TRANSFERRED INTENTif meant to kill one
person, but kill another, you are still liable.)
MotiveDoes not negate intent
KnowinglyCommonly said to have intended the harm.
Aware of a material fact or believes that it exists
Wilfullysynonym for intentional
NegligenceDeviation from a standard of care that a
reasonable person would have observed. Reasonable person
test 1) the gravity of harm that foreseeably would result 2)
probability of the harm and 3) burden to D from desisting
conduct. CRIMINAL NEGLIGENCE imposed when there
is a gross deviation from standard of car
RecklessnessActor disregarded a substantial and
unjustifiable risk of which he was aware.
MaliceIntentionally or recklessly causes social harm
(Cunningham)
General intent crime: doing a prohibited act. If you voluntarily do the act,
it is assumed you intended to.
Specific Intent Crime: an intent to do some further act beyond (burglary,
theft). Or where must have knowledge of certain circumstances.
Criminal Negligence: without awareness of facts, but with gross mack of
care.
i. MPC 2.02
1. A person is not guilty of an offense unless he acted
purposely, knowingly, recklessly or negligently.
a. Purposely- Defendants conscious object is to engage in such
conduct
b.
c.

Knowingly- Defendant is aware his conduct is of this nature.

Recklessly- Defendant consciously disregards a substantial

d.

and unjustifiable risk that he is engaging in this proscribed

conduct.
Negligently-The defendant failed to perceive a substantial and
unjustifiable risk to another resulting from his conduct, which
went against the standard of care of a reasonable person. The
result has to be practically certain.

Regina v Cunningham
Cunningham tore a gas meter from a wall and gas leaked into
the adjoining house through a honeycomb and asphyxiated

the lady tenant. The jury was not given proper instructions
as to how to interpret malice.
Issue. Did Cunningham act maliciously in the crime against
the neighbor lady.
1) Court reversed conviction based on the instructions
given to the jury. The court decided that a jury, had
they properly been instructed about the word
maliciously would have found Cunningham guilty
without a doubt.
Regina v. Faulkner
D convicted of maliciously setting fire to a ship. He went to
steal rum and lit a match which set fire to the ship. Court found
him guilty because the ship caught fire because of an act done in
the course of a felony. NO! Eroneous. The act must be
intentional and willful or reckless
General vs. Specific Intent
1) General intent-The accused meant to do the act he
committed.. ie The result of the crime was obvious.
If the act could be called intentional.
2) Specific IntentThose actions that must be done
with some specified further purpose in mind
Example- Burglary requires someone break
and enter AND commit a felony inside. If
there is no proof of the intent to commit a
felony, there is no burglary.
Subjective vs Objective
Subjective standard: Relies on the criminals actual state of
mind (eg the term purposely is a subjective standard)
Purpose and knowledge are subjective
Objective standard: Criminal liability based on falling short
of a standard of how people are supposed/expected to behave
(eg the liability for negligence). Not how a reasonable peron
would behave. Negligence is objective.
THE HOMICIDE OFFENSES
INTENDED KILLINGS (pp395-404)
Malice aforethought
1.
An intent to cause grievous bodily harm to any person,
whether the person is killed or not.
2.
Knowledge that the act wll probably cause death or GBH
to some person, and being indifferent about this
knowledge
3.
An intent to commit any felony
4.
An intent to impose by force any officer of justice.

5.

Deprave heartAn extreme reckless disregard for the

value of human life. (Usually 2nd degree murder)
a. RecklessnessConscious awareness of risk
b. Degree of risksubstantial and unjustifiable
c. Degree of disregard of the risk

First degree murder

All homicide with malice aforethought that is either:
WillfulActually intended to kill
DeliberateOn purpose
Premditated-- The frame if mid is decisive between thinking
about killing and the actual killing. Many states say that
this time can be only an instant
Commonwealth vs. Carrol
Facts: Carrol convicted of 1st degree murder for
taking a gun near the bed and shooting his wife twice
in the back of the head after an argument.
Issue: If he is guilty of 1st degree because he had an
irresistable impulse
Resolved: The court in this case determines that
premditation was involved here. Because there is
premeditation regardless of the length of time the act
was thought through before the act. Premditation can
occur in a split second.
People v. Anderson
Guy stabbed a 10 yr old girl numerous times. Only
guilty of 2nd degree murder because there was no
premeditation
Planning activities
Prior relationship (motive)
Exacting method of killing (to show
preconceived design)
In this case, none of this could be proven. No prior
relationship, no premed.
Second degree murder
Anything that is not first degree murder
No premeditation: Those murders that are intended to kill but lack
premeditation and deliberation:
Voluntary manslaughter: Does not include malice and is
committed due to sudden passion and provocation.
State vs Guthrie
Facts: Dishwasher at a restaurant, killed a coworker. The co-worker was teasing him, and
then snapped a dishtowel at his nose. The

defedant, Guthrie, stabbed him twice and the

co-worker died
Convicted of 2nd degree murder. The court
says there must be some appreciable time
which should elapse between intent to kill and
the actual killing. The jury was instructed
that it only need occur for an instant.
PROVOCATION (pp 405-424)
That which causes a reasonable person to lose his normal selfcontrol
Tests for provocation as a defense
i. Resonable person in this situation would have
tended to act in this way?
ii. Did killer act in the heat of passion? Was
there legally adequate provocation?
iii. Before a reasonable cooling time passed.
Girouard vs. State
Man kills his wife after she continually provokes
him. Calls him names and insults him. He then slit
his wrists, but lived. He was convicted of 2nd degree
murder. He wanted a manslaughter instead of 2nd
degree murder.
Court says: the words were not enough to provoke
into murder was socially necessary. If he was not
convicted, there might be a lot of people who would
then try to defend M1 this way
Maher v. People
Maher was convicted of assault with intent to kill.
He tried to kill a man who he had been told had sex
with his wife. The trail court excluded evidence
saying that the provocation had to be in front of the
defendant.
ISSUE: Must provocation have been committed in
Mahers presence?
Appeals said NO. Provocation is that which would
provoke a reasonable person. Maher saw them go
into the woods and was told they had sex..
Camplin Case
15 yr old boy was sodomized and ridiculed. He
killed the guy with a frying pan. Should the test be a
reasoanble person or a reasonable boy? Court
says that you should build in age and sex into the test.
When building features into the reasonable person, the
characteristics that should be built in are on features that

contribute to the magnitude of the provocation. The

characteristics that obscure the reaction to those provocations
(like being drunk) cannot be built in.
MPC on provocation:
Criminal Homicide constitutes manslaughter when:
A homicide which would otherwise be murder is
committed under the influence of extreme mental or
emotional disturbance for which there is reasonable
explanation or excuse.
People v Casassa
Casassa was in love with a woman who rejected him. He actively
stalked her and broke into her apartment on several occasions.
Finally, he brought her gifts of liquor and stabbed her to death.
Then, drowned her to make sure she was dead. Charged with 2nd
degree murder
ISSUE Does the defense of extreme emotional disturbance require a
subjective eval of reasonableness.
Two elements to the defense of extreme emotional disturbance:
a. D must have acted under emed
b. Must have been reasonable explanation for this behavior.
Court held he was not under EMED. Test is objective.
Up to this point, we have learned..
Traditional
Murder causing death & intent to kill & not {Provoked}
(killing with
mailce aforethought)

-Goal, aim, purpose to kill

-Knowing one will kill

Vol Manslaughter causing death & intent to kill & {Provocation}

(killing without malice)

MPC
Murder causing death & (purpose of killing or knowing one will kill) & not {EMED}
210.2(a)

Manslaughtercausing death & (purpose of killing or knowing one will kill) & {EMED}
210.3(1)(b)

UNINTENDED KILLINGS
1) ManslaughterHomicides that are not bad enough to be
murders , but crime cannot go unpunished

2) Voluntary manslaughterIntentional homicide but

committed under extreme provocation and acted in the heat
of passion
3) Involuntary manslaughterUnintentional homicide
committed without malice. Can come from negligence.
4) Criminal vs Civil negligenceMost states require a higher
degree of negligence for criminal liability than that for tort
negligence
a. Criminal negligence involves the following:
i. Ds conduct must involve a high degree of
risk of death or bodily injury
ii. D must be aware that his conduct creates the
risk
iii. If both of the above are required, then
recklessness is more appropriate than
negligence.
b. Criminal negligence is supposed to be something
higher than ordinary negligence:
i. The person might have fallen short of the
reasonable person in a HUGE way. They are
not aware of taking this risk (GROSSLY
NEGLIGENT)
ii. actor consciously aware of risk, but takes this
risk with that knowledge (RECKLESSNESS)
Commonwealth v. Welansky
Welansky owned a nightclub. There were decorations, etc,
all over ceiling. Employee lit a match and the building
burned down killing 491 people. There were no proper fire
exits.
D convicted of involuntary manslaughter because through
his wanton and reckless conduct he created an area unsafe
for patrons of his club. A reasonable person should have
known that the situation would have been dangerous for the
patrons.
State v Williams
Ds were in the care of their child who died as a result of an
abcessed tooth which became gangrous. Child died and the
parents never took him to a doctor. Court found them
negligent and they were convicted of manslaughter
Simple negligence is enough to make a person criminally
liable.
Ordinary negligence was enough because Wash had a statute
the made it a criminal liability where death is the proximate
cause
A reasonable person would have seen how sick the child
was.

UNINTENDED MURDER
The line between murder and manslaughter
Recklessness plus malice
Commonwealth v Malone
Two kids are playing Russian roulette. One kid put gun to
others head and pulled trigger. He did not expect gun to go
off.
Court finds that malice is needed to distinguish murder from
manslaughter (what reckless kiling usually is). Malice is met
when someone commits a crime of gross negligence which
he should reasonably believe that death to another person is
likely to result. Here, the death was likely because there was
a 60% chance of death.
Examples of unintended murder:
Guns on the table
Shooting into a crowded room
Shooting into a car
US v. Fleming
Fleming driving extremely eradicately. Going against traffic
and at excessive speed. He hits a ladys car head on and she
dies. Fleming is drunk. Charged with 2nd degree murder.
Fleming created a high risk of death with no worthwhile
reason.
Court says malice = gross deviation of care.
Much different than other drunk driving cases because other
drunk drivers at least TRY to drive carefully
(MPC says you have to be actually aware of the risk of
death)
FELONY MURDER
A killing is murder if it is caused with the intent to commit a felony
It is 1st degree murder if it happens in the course of a dangerous felony, and 2nd
degree if felony is otherwise. Strict liability crime.
People v. Stamp
Stamp burglarized and victim died of heart attack (pre-existing condition).
He is guilty of 1st degree murder.
Rule: Take your victim as you find them
The death must be a direct result of the felony, but it doesnt have to be
foreseeable.
Regina v. Serne
Guy sets fire to his house and his son burns to death in the house. Court rules
not guilty because the felony itself (arson) was not itself dangerous to life.
This is not accurate.

Arguments against the Felony-Murder Rule

The rule is anomalous (strange). Seems to be not in line with other parts of
criminal law.
Proponents of the deterrence theory say there is little added deterrence to
commit a crime if it is said, If you cause death, you are punished for
murder. This does not occur too often. Retributive theory does not work. If
the same crime is committed to 2 different people, and one dies because they
have a weak heart, it is not fair to have one of the Ds charged for murder, and
another just for burglary.
Limitations on the rule:
INHERENTLY DANGEROUS FELONIES
Always dangerous to human life. Some courts limit the felony murder rule to these
types of felonies.
People v. Phillips
Chiropractor swindled money out of parents by convincing them to use his
help instead of getting surgery for daughter with ocular cancer. Girl died.
The felony was grand theft of their money. Court rules no felony murder
because grand theft is not a crime inherently dangerous to human life. He is
later convicted of depraved heart.
NOTE: Court decides if it is FM by looking at it in the abstract. Court
looks at the nature of the crime, and not the way it was committed.
Court retried for depraved heart because even if he knew he was defrauding
them, he might not have been aware that he was risking the girls life (no
conscious disregard for life).
People v. Patterson
D furnishes cocaine to a lady who dies. He violates the Health and safety
code which makes it illegal to transport and sell drugs. Court says you
should only look at the element of furnishing cocaine.
An act is inherently dangerous to human life when there is a high
probability of death occurring.
Exceptions to the Felony Murder Rule: Killings not in furtherance of felony
Agency Theory: the murder is done by one of the co-felons or someone acting in
furtherance of the crime.
Example: State v. Canola
D and 3 others robbed a store. The robbery victim shot and
killed one of the co-felons. Can a felon be convicted of the
murder of another co-felon who was shot by a victim?
Court held there is no f-m murder because the death was not
caused by any of the co-felons

Proximate Cause theory: A death not caused by one of the co-felons is felony
murder when death was proximately caused by the felony. It must be a foreseeable
risk of the commission of the felony (police officer kills felon, etc.)
Example: People v. Hernandez
Police officer was killed by friendly fire during the robbery
that Hernandez was committing. Hernandez was guily of
murder under the felony-murder rule. His behavior of trying
to escape made a death foreseeable.
Murder of a co-felon:
All courts agree that F/M does not apply to a situation in which one of the co-felons
gets killed. Neither agency nor proximate cause theories support this.
Taylor v. Superior Court (CA)
Taylor was a party in the robbery of a liquor store (he was the getaway
driver). Smith, an accomplice of his, was constantly provoking the victims,
and they consequently shot him in fear for their lives. Taylor has been
charged with murder for the murder of Smith under the felony-murder rule.
Cannot be convicted by the felony-murder rule because there was no malice
aforethought and under the CA statute, that is needed.
He can be convicted as a result of implied malice. Creation of a risk of
death for no good reason. This is a depraved heart murder. He showed
vicarious liability (accomplice liability).
Daniels (another accomplice) and Smith were behaving in such a way that
they provoked the use of deadly force by the victims.
Just having a gun pointed at you is not enough provocation. If they acted in
a way that created a substantial risk of death that goes beyone mere armed
robbery, then an accomplice can be convicted of depraved heart murder.
MISTAKE AND STRICT LIABILITY
Mistake of Fact
Occurs when what D did was a violation of the law, but D was mistaken about the
facts. If the facts were as he believed them to then what he was doing would not
violate the law.
Examples:
Statutory rape (sex with 16 year old he believed was 18)
D is driving at 70 but thought he was driving 55 according to speedometer
D shoots and kills what he thinks is a deer, but it is someone dressed like a
deer
Regina v. Prince
Reasonable belief as a defense to strict liability crime
Prince charged with taking an unmarried girl under the age of 16 out of her fathers
possession. Prince reasonably thought the girl was 18. Prince is convicted of the
crime.
Bramwell (majority)Even though Princes mistake was reasonable, what
he did was still morally wrong. Prince is aware that he is taking the girl out

of her fathers possession, which was immoral in that society. He would

have a defense of mistake which would negate his immorality if he truly
believed he had the fathers permission.
Today: His approach is still alive in statutory rape where there is strict
liability about age.
Brett (dissenting)-- He takes the lesser crime approach. That if the
prisoner was committing a crime anyway, and had a mistake of fact, then he
could be guilty of the greater crime because he runs that risk. So, if a
prisoner though a girl was 12 and had sex with her, which would be a
misdemeanor, but she is actually 9, which is a felony, he can be guilty of the
felony because both are crimes.
HYPO: Man hunting out of season, but kills someone he thought was a
deer. Brett may convict of murder because he already was committing a
crime and runs the risk.
Under MPC 2.04-- Mistake is a defense if it negates some culpability
states of the crime. Prince must be guilty of all the elements of the crime in
a reckless manner. Princes assumption that she was older than 16 would
negate the 3rd element. MPC: NOT GUILTY because could not prove all
the material elements of the crime.
Elements of the crime under MPC
o Taking a girl out of parents possession
o Girl is unmarried
o Girl is under the age of 16
o Taking against parents will

People v. Olsen
Mistake of age not a defense to statutory rape
Victim was a 13 yr old girl who was sleeping in a camper outside of her home.
She recounts a story of being forced by her then boyfriend, Garcia, to have sex
with Olsen. She was threatened at knifepoint. D thought she was older (over
16). Olsen tried for child molestation.
Rule:Court finds that mistake of age is no defense for child molestation. In
CA, mistake of age is a defense to statutory rape.
Rationale: 1) want to protect children under the age of 14 and 2) there is a
provision in a statute that mkes it possible for parole if someone is mistaken
about the age of someone under 14.
Material v. Jusridictional elements:
Jurisdictional elementsdo not require any mens rea. (eg the mail fraud
statuteif you use mail to commit a crime, then it goes to federal court.)
US v. Feola is a good example:
Ds were selling drugs and tried to rob buyers, who were Federal agents.
Ds did not know this. The federal officers got the benefit of a jurisdictional
element. So, mistake of fact was not a defense.
Strict Liability

These are crimes that require no means rea, so mistake of fact is NEVER a
defense for these crimes.
Examples:
Selling liquor to minors
Statutory rape: strict liability as to age of victim
Bigamyas to whether you are already married
Speeding, etc.
Morissette v. US
Facts: D took bomb cases from government bombing range and used as
scrap metal. He thought they were abandoned. Charged for a strict liability
crime
Holding: Court says that mens rea is required in this case. He did not
intend to steal, so not strict liability.
Reasoning: The court is trying to figure out what Congress was trying to do
in enacting this statute. Court gives the following factors that are
characteristic of strict liability crimes:
Features of Strict Liability Crimes
1. Relatively recent public welfare offenses
2. Penalties are commonly small
3. Conviction does no grave damage to a defenders reputation
4. Usually apply to people who are in a position to avoid the forbidden
conduct by using reasonable care.
Staples v. US
The crime was possession of an unregistered firearm, and a firearm in this
case was defined as a fully automatic weapon. D claims he did not know
the weapon was made fully auto.
Issue: Does the prosecution have to prove mens rea as to the fully
automatic?
Holding: Yes. Court uses a different appraoch than Morisette. This is a
narrow view of strict liaility, but court is hard to convince about strict
liability.
State v. Baker
D was convicted of speeding and he states that his cruise control was stuck.
Issue: Even if mens rea is not required, strict liability still needs a voluntary
act. D claims there was no voluntary act (actus reus).
Ruling: Court says that the voluntary act was actually turning on the cruise
control. This is not an essential part of an operating a car.
Mistake of Fact and RapeEmotionally charged issue
Regina v. Morgan
Reasonableness of mistake
4 Ds are in Air Force and Morgan, their commanding officer is out drinking
with them. They go back to his house and he gives them permission to have

sex with his wife. He said if she struggles its because she is kinky and
likes that.
Issue: Whether in rape, can D be convicted if he had an honest, but
unreasonable belief that the victim consented?
Holding: Yes. Any mistake is a defense, no matter how unreasonable.
But, court convicts Ds because they say a jury could not have found that
they actually believed she was consenting. The more unreasonable the
belief, the less likely a jury is to believe a mistake.
Under MPC 2.04: Any mistake is reasonable if it negates the purpose,
knowledge, and recklessness.
Actus Reus: Having sex with a woman without her consent.
Elements of this actus reus: woman does not consent
(mental state required is recklessness or above) Meaning, D
must be aware of a substantial risk that the woman does not
consent.
If D honestly believes that there is consent, then the
mistake is a proper defense under MPC 2.04. BUT, in
Morgan, they were reckless about knowing if she consented,
so still guilty.
State v. Baker
Facts: D removed mantles and claimed he had consent. He thought owner
gave him consent, but the consenter was not owner. Appellate court found
him not guilty because there was an honest belief which lacked intent.
General Intent v. Specific Intent Crimes
Specific intent crimes: Any mistake of fact is a defense. If the
person lacks the intent required in the definition of the offense, then
mistake is a defense.
General intent: Only a reasonable mistake of fact is a defense.
Think of it as being a general sense of mens rea or guilty state of
mind. Rape is a general intent crime. If mistake about consent is
reasonable, it is a defense.
Mistake of Fact:
1) Traditional common-law approach:
a. Specific intent ANY mistake (that negates the specific intent)
b. General intent ONLY reasonable mistake
2) MPC approach : simple failure of proof defense. If D was under a mistake of
fact, the prosecution cannot prove it. If the mistake negates one of the required
culpability elements.
3) Special areasWays of disregarding certain mistakes of fact
a. Bretts lesser-crime viewIf there is a mistake, and had things been the
way you believed them to, you would have been convicted of a lesser crime,
then mistake of fact is not a defense.

b. Bramwells moral evil-- If there is mistake, but had things been as you
believed, you would still be committing a moral wrong, then mistake is not
a defense (statutory rape)
c. Jurisdictional elementsWhat state you are in does not negate the crime.
Or, if you assault someone, and you thought they were an ordinary person,
but they were a federal officer, you can still be convicted of assaulting a
federal officer.
MISTAKE OF LAW
Common law rule: Ignorance of a law is NO DENFENSE. Mistake of law does
not negate the mens rea.
People v. Marrero
D was arrested for carrying a firearm that was concealed without a license. NY
statute states that if D was a peace officer, he would not be guilty. He was a federal
prison guard, and statute did not mean him. He thought it did not apply to him.
But, the statute means only state peace officers.
Issue: Does the misreading of the statute constitute a defense?
Holding: No. Court said the statute does not define him as a peace officer and
mistake of law is not a defense.
Reasoning: There is a fear that everyone will claim ignorance of law and they are
willing to sacrifice one for the benefit of society
Under MPC 2.04 (3)(b): Mistake is a defense if the law mistaken about is later
determined to be invalid. Marrero would still be guilty because the statute he
violated is still illegal.
AFFIRMATIVE DEFENSE: Collateral vs. Direct Mistake of Law
Direct Mistake of LawMistake is about the law that person is violating.
I knew what I was doing, but didnt know it was prohibited.
Collateral MistakeA knows the crime exists, but was mistaken that his
conduct did not constitute that crime. I didnt know my conduct had those
features which make it illegal.
Smith case: D damaged property he thought was his own because he
improved his apartment. Collateral Mistake.
Woods case: Woman caught with her new husband in bed. Her mistake is
she did not know of the law that you could not get divorced out of state.
MPC recognizes collateral mistake as a defensefailure of proof.
Direct Mistake as a DefenseFAILURE OF PROOF DEFENSE
Cheek v. US
Did not pay taxes because he thought it was unconstitutional
Issue: If Cheek really did not think he had to pay, no matter how
unreasonably, then the mens rea of willfully is negated.

Holding: Did not willfully violate statute so there was a failure of proof
about his mens rea.
Lambert v. CA
D is an ex-felon who did not register with police while in LA, which is in
violation of a statute.
Issue: Does the city ordinance apply to someone who had no actual
knowledge?
Holding: This is a direct mistake of law, but it is a defense here. The
conduct was wholly passive. There was no notice of the statute, which
requires mens rea. There are heavy criminal penalties.
Under MPC:
2.04(1)(a): Ignorance of law is a defense if it negates culpability required
to establish a material element of the crime.
2.02(9): Generally, a mistake of law is no defense
2.04(3): Defense of mistake of law if the statute violated was later deemd
invalid.
CAUSATION
Actual Cause/ But-For CauseThe defendants act must have actually caused the
unlawful result before he can be held liable.
Proximate CauseConduct is closely enough connected to resulting harm.
Must have both of the above
ForeseeabilityThe issue of proximate causation turns on foreseeability
People v. Arzon
Sole cause not required
Arzon started a fire on the fifth floor and while firefighters were putting it
out, an independent fire began on the second floor. Firefighter dies. Arzon
convicted of felony-murder and depraved heart.
Holding: When there is a depraved heart, it is not necessary that the
ultimate harm be intended. The ultimate harm could have been foreseen. If
an earthquake would have occurred, this would have been unforeseeable.
People v. Warner Lambert
Unforeseeable cause
D was on notice about chemical dust in air at factory. Dust exploded from
unexpected spark in factory and factory exploded.
Holding: D was not liable because the spark was not foreseeable. This was
not normal in the factorys operation.
People v. Acosta
Foreseeable result
2 police helicoptors collide due to negligent flying while chasing D.

Holding: It was reasonably foreseeable that the chase would include

helicopters. In addition, it is foreseeable that someone will act negligently
in a chase.
Intervening Acts
Foreseeability is irrelevant when conduct is a direct cause (X causes Y, end
of story) of harm. It is only important when there are intervening acts.
Foreseeability not enough for proximate causation
In People v. Campbell, it was foreseeable that Ds conduct would
result in the death, but the behavior did not cause the death. D gave
a drunk, depressed person a gun and encouraged him to kill himself.
This is not proximate causation
Hypo: Buy my sister a ticket to Beirut hoping a terrorist will kill
her, and they do. This is a but-for cause of her death, but buying
sister ticket is not proximate causation.
In both above situations, there are intervening acts by other people.
These people break the causal chain of events.
Kevorkian
D sets things up so that they can kill themselves, but he has provided them
with the means. Court says his conduct is not the proximate cause of death.
Only if death was the direct affect of the defendants act can he be charged
with murder.
Stephenson v. State
Even if there are intervening acts, proximate cause may be strong
enough to convict
D kidnapped and raped V. She goes out with henchmen to buy poison pills
and kills herself by taking them (took her one month to die).
Holding: The general rule that intervening conduct breaks the causal chain
does not apply. Ds behavior rendered V suicidal and mentally
irresponsible, so she committed suicide.
MPC 2.03
Two part definition: Must be a but for and a proximate cause.
Leaves the question of proximate cause to the jury.
2.03(1) : Conduct is the cause of result when : a) but-for causation
and b) any extra feature required has to be there (purpose, reckless,
negligent).
2a and 3a: Proximate causation arises even when there is a
difference between what the actor wanted to happen, and what
actually happened. The result may be to a different person or object.
2b and 3b: Similar to transferred intent. Leaves it up to the jury to
decide whether the actual result involves the same kind of harm
intended.

Under MPC, Campbell and Kevorkian would be guilty because the

result of his conduct (giving guy gun and encouraging suicide) does
not differ from his contemplation.

Intervening circumstances: Someone who was not coerced and through an

independent intervention of a 3rd party, the causal chain is broken. In the
following cases, the question is whether this should apply:
Commonwealth v. Root
Intervening circumstances do not apply, must be DIRECT CAUSE
Drag race between Root and Victim. V tries to pass D stupidly and dies
because of truck.
Holding: Death was directly brought about by other driver, so D is not
guilty. This is a minority view
State v. McFadden
Intervening circumstances applies; Direct cause not necessary
Drag-racing case where drag racer is killed and passenger of car he hits
dies. Court held that he is liable for both the other drag racer and the the
other victim . He was reckless and therefore, by participatng in the drag
race, was a proximate cause to the deaths. (involuntary manslaughter).
Commonwealth v. Atencio
Direct Cause not required
Russian rouletter played with 4 guys. Victim pulls trigger and dies.
Holding: Causal chain was not broken by victims act. Ds cooperation in
the game recklessly brough about death. Ds had a duty not to participate
and thereby encourage him. Encouragement and cooperation is the
proximate cause.
ATTEMPT
Mens Rea
Must be intent. Intent to kill is necessary for attempted murder. The attempt to
create a crime requires the intent to bring about the result.
Smallwood v. State
HIV positive man rapes woman. He is charged with attempted murder.
Holding: Insufficient evidence to show that he intended the person to
contract HIV. State had to show that is was VERY likely for the victim to
contract HIV. D only created a risk of death.
Circumstance elements:
Assaulting a federal officer. Fiola case on p235. Strict liability for
assaulting a Federal Officer. No mens rea is required. Suppose, I am about
to punch a Federal Officer, but am restrained and arrested for attempting to

assault a federal officer. Is this valid? Should we say of course because if

he was unrestrained, he would have completed the crime. But, can he be
convicted of the attempt. Should there be a heightened mens rea
requirement. The original mens rea does not require he know the person is
a fed, but under attempt, should the attempt mens rea be heightened that he
know the person is a fed.
MPC 5.01(1)
Failed attemptsdid all conduct D meant to but failed (shot at
someone, but missed)
o No result element (1a): needs purpose
o Result element (1b): attempt needs purpose or belief that what
he was doing would bring about the result.
Incomplete attemptsD did not complete what he intended
o Section (1c)circumstance: same as target crime
MPC requires same culpability for target crime as for attempt.
ACTUS REUS
Act that progresses sufficiently toward the commission of the offense
Two views:
1. Last proximate actnot guilty unless last act is done to bring about crime.
Did everything, but results failed.
2. The first actguilty of attempt as soon as you take the very first step
toward the crime.
King v. Barker
Both extremes rejected
McQuirter v. State:
Black man guilty of attempt for following white woman down the street.
Relaxed attitude towards attempt. Only committed very first act, but found
guilty.
Dividing line between attempt and preparation:
Defense of AbandonmentWhen someone changes their mind after
taking substantial steps towards a crime
Must find an appraoch in the middle:
Proximity Test by MPC
Acts do not count as actus reus unless they come close to crim intent. So close
that if they are not stopped just before, they would have committed the act.
Dangerous proximity to success.
EXAMPLE: Rizzo: Drove around and looked for someone to rob, but they did
not find that person. Never saw him to rob him. So, this D is not guilty
because they were never dangerously close.

Equivocality Test
Need conduct which is unequivocal evidence of intent. The conduct must
speak for itself.
MPC 5.01(1)(2):
If a person takes the last proximate test, this is enough to convict of attempt. If
there is a result element, this is enough. An incomplete attempt (1)c: guilty of
attempt if it is a substantial step towards committing the crime.
(2) Conduct is substantial only if it is strongly corroborative of the actors
criminal purpose. It lays out the conduct which is strongly corroborative.
DEFENSE OF IMPOSSIBILITY
At common law, legal impossiblity is a defense, but factual impossibility is not.
Factual ImpossiblityNo Defense
Pickpocket cases in which a pickpocket tries to steal something from
someones empty pocket.
D shoots into a room where he falsely believes V is asleep
ThomasDs have sex with a woman they believe is nonconsenting, but is really dead.
Legal Impossibility--Defense
People v. Jaffe D receives cloth he believes to be stolen, but which
had been returned to its legal owner and then presented to Jaffe as a
trap. Holding: Jaffes crime is legally impossible. He cannot know
what is false. If he had received them, they would not have been
stolen, so he could not have been guilty of the completed crime
D shoots a stuffed deer, believing its real, out of season.
US v BerriganDs smuggle letters out of prison, falsely believing
that warden does not know. It is only illegal to send letters without
warden knowing, but since he knew for months, there was no crime.
MPC approach to Impossibility:
5.01 Makes impossibility no defense with the phrase if the circumstances
were as he believed them to be. Dolinko likes this approach.
True Legal impossiblityWhere there actually is no crime at all. Even
if D thought he committed a crime, which actually was not a crime, he has a
defense.
Where Impossibility is no defense
People v. Dlugash
Bush shoots V 3 times, then Dlugash shoots V 2 more times. V may have
been already dead when Dlugash shot him. Court talks about difference
between factual and legal impossiblity

Holding: D is guilty of murder. They adopted MPC approach.

Impossibility is not a defense if the crime could have been committed had
the circumstances been as he believed them to be.
ACCOMPLICE LIABILITY
Old Categories
Principle in the 1st degreeThe actual criminal actor
Principle in the 2nd degreeThe aidor and abettor
Accessory before the factHelped with planning. Etc.
Accessory after the factHarbored the criminal, or helped him in any way after the
commision of the crime. Someone who aids a felon in eluding capture or destryng
evidence.
Today
Principle in 1st and 2nd degree and accessory before the fact are all equal. All are
equal parties to the crime.
Accessory after the fact is (usually) a lesser offenseObstruction of Justice
Mens Rea
2 Mens rea requirements:
1) Intent to aid/encourage Perp to engage in:
a. The actus reus of the crime
b. The conduct that forms the base of the crime
c. The conduct that the law makes criminal
2) [At least] The mens rea required for the commission of the crime.
Must have purpose to help with crime. Mere knowledge is not enough.
Hicks v. US
Intent to assist
Victim is threatened and Hicks tells victim to take off his hat and die like a
man. Victim is then killed.
Holding: The encouraging words must have been said with the intent that
the victim would be murdered. Since there was no intent, icks was not
guilty of being an accomplice to murder. If Hicks was present to lend aid
and encouragement, and this was agreed ahead of time, he would be an
accomplice.
Problems on p. 609
1) Hicks goes along to enjoy spectacleNo liability because no mens rea
2) Same, but Hicks says go get him and attaboyStronger case. Could be
encouragement
3) Hicks will help murder if he has to, but will not tell murdererNo
liability unless the killer knows he is there to help
4) Hicks tells murdere he will helpLiability because of conspiracy.

Wilson case on p 609

Agent provacateur
Wilson helps in a burglary but it is set up. He is hoping to get accomplice
convicted to get even with him. Police arrive to arrest. Held that no
accomplice liability because he lacked criminal intent
State v. Gladstone
No association with principle beforehand
D tells NARC that Kent might sell him weed and gives him directions.
Kent does sell to NARC.
Holding: D not liable because he did not aid. No communication or
nexus between D and Kent.
MPC 2.06Accomplice must promote commission of offense. Mere
knowledge that the person D is aiding will commit a crime is not enough.
There must be purpose as well. This helps explain Gladstone
Circumstance Elements
Does the accomplice have to be aware of the circumstances?
Strict LiabilityIf D did not have intent nor knew that the offense would
occur, is he guilty of the crime of the principle? He had the same mens rea
which was necessary for commission of crime, but courts WILL NOT hold
accomplice liable in strict liability
Example: US v. Xavier
Xavier gave his brother a gun to shoot at someone. There was a
statute that does not allow someone to aid and abet possession of
a firearm to a convicted felon. Court could not prove that he
knew all the circumstances. Namely that this brother was a
convicted felon.
Unintended Result Cases Mens Rea of Recklessness or Negligence-Dolinko likes these
Example: A asks P for a ride to the airport. A is running late so he urges P
to go faster. P runs a red light and kills another driver. P can be convicted
for involuntary manslaughter based on reacklessness or negligence. Is A an
accomplice?
A did encourage the crime and had the mens rea for the crime
(recklessness or negligence). He did not intend to cause death, but
neither did P. Common holds A as an accomplice
State v. McVay
Can convict accomplice on Negligence
Guy should have known boiler on ship would explode, but he directed
people to fire it up anyway.

Holding: He was negligent in not knowing the boiler would explode.

Guilty.
People v. Abbot
Drag racing case. Moon is Abbots accomplice because he intentionally
aided Abbot to engage in his negligent conduct which caused death.
Lending car to drunk driver who kills someone. Accomplice liability is
found on negligence.
Natural and probable Consequences:
A sets out as an accomplice to P on crime #1. P, though, commits crime #2.
Is A an accomplice to crime #2? The answer is yes if crime #2 is a natural
and probable consequence of crime #1.
Some courts say reasonably foreseeable instead. Is the additional crime
reasonably foreseeable.
Example: People v. Luparello
D wanted to locate his former lover so he enlisted help of
friends. Group shot and killed husband of former lover. D
charged as accomplice.
Held: He is guilty of murder because the act was reasonably
foreseeable
Unintended results and natural and probable consequences extend the
ordinary rules of accomplice liability.
ACTUS REUS of ACCOMPLICE LIABILITY
But-for test for causation need not be satisfied to determine liability
Aiding and abetting, encourages or assists.
1) Words may be enough if there was encouragement
2) Mere presence not sufficient. Must also show purpose of approving
3) Omission to intervene does not necessarily make one an accomplice. Only if
they had legal duty to act.
Wilcox v. Jeffrey
Guilt without being but-for cause
Wilcox was a writer for a Jazz magazine. A jazz musician was going to play
illegally in UK and Wilcox attended concert and paid as a spectator. There was an
intent to encourage because he wrote an article about the musician.
Held: Guilty
State v. Judge Tally
Guilt without being but-for cause
J. Tallys sister in law seduced. Brothers went to kill guy and Tally told telegraph
operator not to send telegraph warning. Seducer killed by brothers.
Held: Court finds him guilty
HYPOS:

 Tallys message not regarded by operatorUnder MPC he is an

accomplice because he attempted to aid a person
Brothers fail to kill-- Cannot convict because there was no crime of
murder. Could be convicted as accomplice to attempted murder. MPC
5.01(3) would convict of this.
Brothers change mind en route to killCommon law would charge Tally
with nothing. MPC 5.01(3) would find him guilty of attempt because he
took a siginificant step towards the crime.
Relationship between the Parties:
Innocent Intrumentality Theory-- One that uses another as a tool to
commit a crime. User of tool is guilty as principle if tool has no mens rea
Personal defenseSome principles have a defense against the crime, but
that is not extended to accomplice. Entrapment and espionage are
examples. A crime is still commited, but principle has defense where
accomplice does not. Or, if you are deemed insane, your accomplice to
murder cannot be acquitted.
US v. Standefer
Accomplice can be convicted even if Principle was not
The government still has to prove at the accomplices trial that the crime
was committed and this person has aided the crime. The second jury for the
accomplice found the crime to have happened, but the jury for the perp
ruled there was no crime. This is possible because of different evidence,
findings or allowances.
State v. Hayes
Principal without intent
Hayes was charged as an accomplice to a burglary. Hill, the person Hayes
assisted in entering the store, has no mens rea and just wanted to get Hayes
to help him so he would be convicted. This was entrapment of Hayes by
Hill.
Holding: D is not an accomplice. Hill did not have the intent to commit a
crime.
Under MPC 5.01(3): A person who aids someone with a crime under 2.06
is guilty of an attempt even if the crime is not committed by the other
person. Hayes wold be liable for attempted burglary under MPC.
Vaden v. State
Personal defense does not extend to accomplice
Vaden helped undercover officer hunt illegally.
Held: He is guilty because the undercover has a defense of his actions that
does not extend to Vaden.

Regina v. Richards
Accomplice cannot be guilty of more serious crime than P
Wife asks men to put her husband in the hospital. The men failed and only
mildly wounded her. The men were convicted for assault and she was
convicted of a more seriously crime of inflicting GBH. Court says her
conviction cannot stand because that crime was not actually committed.
Accomplice can only be convicted of a lesser crime and not a greater one.
HYPO: Neighbor angry at restaurant owner. Dolinko does not hate the
owner. He then tells neighbor he should kill the guy because he was having
an affair with his 14 yr old daughter. Neighbor is charged with
manslaughter because he was provoked by mere words, but Dolinko charge
with murder as an accomplice. Courts are comfortable with that.
CONSPIRACY
1) Definition:
An agreement by 2 or more persons to commit an unlawful act. A person is guilty if they
agree with one other person on the intent to convict a crime.
There must be at least one overt act in furtherance of the crime, in some jurisdictions.
2) Conspiracy vs. Attempt/Accomplice:
Like attempt, conspiracy is an inchoate crime in which someone is guilty even
before the crime is committed
Unlike attempt, the overt crime is not merged with the conspiracy crime. [D can be
convicted of crime X and conspiracy to commit crime X]
Unlike attempt, conspiracy into play a lot earlier. For attempt, there must be a
substantial step toward committing the crime. In conspiracy, it is complete at initial
agreement, or at time first overt act is completed.
Accomplice and conspiracy liability are aimed at preventing group criminality
Conspiracy is a substantive crime like attempt. Accomplice liability is not a
separate crime.
3) Why prosecutors like this crime:
Comes into play really early.
Hearsay exception: allows evidentiary introduction of hearsay of coconspirators.
(cant normally introduce hearsay as evidence)
Venue Rules: Can be tried in any locality where any act by any of the conspirators
was committed.
Can put all conspirators on trial at once, and get some Ds against whom you have
little evidence, under the radar of the jury.
Learned Hand: Conspiracy is the darling of the prosecutors nursery.
4) PINKERTON DOCTRINE

Allows a conspirator to be held liable for crimes committed by co-conspirators

without govt having to satisfy what is needed for accomplice liability.
Pinkerton v. US
Guilty of conspiracy for substantive crimes. Ordinarily, under accomplice liability,
he would not have been convicted. He was in prison for some of the crimes his
brother committed. No evidence of direct participation in the substantive crimes.
Held: Guilty as an accomplice. This case goes beyond accomplice liability because
he did not encourage any of the crimes, but he agreed to do the crimes at an earlier
time.
Court says it would have been different if the crimes of one cannot be reasonably
forseen by the other.
Restrictions apply to the doctrine:
1) Crime has to be reasonably foreseeable as a natural consequence of the
conspiracy
2) Has to fall within the scope of the conspiracy.
An extension of accomplice liability
Pinkerton Doctrine allows conviction of an accomplice even if they are not present at
the event. If you are a conspirator, then you automatically become an accomplice for
any crime committed by any of the conspirators in furtherance of the conspiracy,
provided that the crime was reasonably foreseeable.
Exceptions:
If crime wasnt in furtherance,
If it was not the same focus.
Was not reasonably foreseen as a natural consequence
Problems on p. 690:
A hires B and C to rob banks 1 and 2. B and C do not know eachother, but both
know the are part of a larger conspiracy. D is asked to steal cars for B and C to
rob banks in.

C for Bs robbery

Accomplice
No aid or encouragement.
B does not intend to
encourage.
Same as above.

B for Ds theft

No aid or encouragement

C for Ds theft

No. Same as above.

D for Bs robbery

Yes. Intentionally aided D.

B for Cs robbery

Pinkerton
Yes. This was the goal of
the conspiracy.
Yes. This was the goal of
the conspiracy
Yes; in furtherance anf
foreseeable
Yes; in furtherance and
foreseeable.
Yes

D for Cs robbery

May argue that he acted

indep.
No. C did not use the car.

Yes. Stealing car was in

furtherance of conspiracy.

Extensions to Pinkerton:
State v. Bridges
Reasonably foreseeable out of the conspiracy
The substantive crime is murder. He is convicted as an accomplice to murder.
Friends and D agreed ahead of time that the goal was to hold back on-lookers of
fight with guns.
The goal was not murder, but it was a reasonably foreseeable outcome of the
conspiracy. Holding: D is liable for the murder because it was foreseeable that
someone would get killed if you wave your guns around. He should have known
that murder could have resulted. He was negligent.
US v. Alvarez
Substantive crime is far removed from goal of conspiracy
Drug dealers at motel, and they sold to federal agents. Gun fight ensued and agents
got killed. Held: Court says that the gunfight was reasonably foreseeable. The
dealers had guns, and it wsa foreseeable they would use them. This extends to
people not even involved in the gunfight. The alleged accomplice has to be more
than a minor member.
5) Whartons Rule
No conspiracy for crimes which by definition can only be commited by 2 or more
people.
BUT Does not apply if actors end up enlisting more people than the minimum
required by definition of crime.
Why? B/c conspiracy is tool to combat higher danger of group criminality, but we
dont need it if the crime itself is targeted at group criminality.
MPC rejects W. rule, claims conspiracy has another function; to allow us to
intervene early And b/c MPC doesnt need it, 1.07(b) says you cant convict for
conspiracy to commit X and X itself.
ACTUS REUS OF CONSPIRACY
The agreement.

Dont need an explicit, documented, agreement, just a tacit, implied from

circumstantial evidence, agreement.
Types of circumstantial evidence:
- with the others.
- had knowledge of crime
- present at scene
-conduct furthered object of conspiracy
Commonwealth v. Azim
D drove a car in which passengers jumped out and mugged a student. D is held as
an accomplice and a conspirator with his passengers.
Holding: D is convicted of conspiracy because the court finds no merit in his claim
that he was merely a hired driver. Since he was a conspirator, he is guilty for the
acts of his co-conspirators (Pinkerton doctrine). Good example of how difficult it
is to tell if there is a conspiracy or not.
US v. Alvarez
Act which implies common intent
D is loading an airplane with washers and dryers, presumably filled with marijuana.
An undercover officer asked D if he would be at the landing sight and he shook his
head yes.
Held: D was convicted of conspiracy with the other drug dealers because they
assume that his nodding his head that he will be at the off-loading site is evidence
of an arrangement.
MENS REA OF CONSPIRACY
Two mental states for conspiracy:
1) the intent to agree
2) the intent to commit the substantive/object crime
It is possible to have 1 but not 2
1) People v. Lauria
Mere knowledge not enough to make you a conspirator, must have INTENT
D ran a telephone answering service that had prostitutes as clients. He knew some of
his clients were prostitutes.
Holding: Not guilty. There must also be intent to further the crime in addition to
knowledge. In a serious crime, the knowledge is deemed intent.
Court says that a suppliers intent can be shown by (stake in the venture):
1) Direct evidence that the supplier wants to promote the crime (gives advice on
how to use something)
2) Sometimes supplier charges an inflated priceproves a stake in the venture.
3) If you are providing something that has no legal use.
4) If the seller deals mainly with criminals
5) Mere knowledge is enough if the supplies will be used to commit a serious
crime. Not all felonies qualify.

Example: Someone is an accomplice where they are not a co-conspirator.

Guy in the back room hates his boss to he rips out alarm system during robbery, but
unknown to robber. There is no agreement here. Guy in the back room purposely
provides to the robbery.
2) Corrupt Motive Doctrine:
People v. Powell : In order to be criminal, conspiracy has to be motivated by a
corrupt motive. This provides 2 categories of crimes:
1) malum in se: evil in itselfAside from the fact that it is illegal, it is also
evil (rape, murder, theft)
2) malum prohibitum: evil by prohibitionA crime where underlying
behavior is neutral, morally speaking.

Powell is about malum prohibitumif that target crime is this kind

of offense, then you can only be guilty of conspiracy if you are
aware that the act is prohibited. The Powell rule is an expception
to the ordinary rule that a direct mistake of law is not a defense.
MPC does not agree with PowellMost states and courts follow
and do not use it.

3) Mens Rea as to Elements of the Target Crime:

Agreed: If target crime has result element, conspiracy requires purpose to achieve
that result.
Agreed: Mens rea as to elements of crime, require as much mens rea as object
crime.
Ex: Assuming 1 element of burglary is knowledge that building is a dwelling, conspiracy to
commit burglary also requires that when they agree, they know the building is a dwelling.

Disputed: Do they sometimes require more mens rea?

Circumstance elements to a crime:
Jurisdictional ElementConspiracy in US v Feola How can you
convict them of agreeing to assault a federal officer? Court rules
that there does not have to be any greater mens rea as to an attendant
circumstance than is in the actual offense itself (like strict liability)
Element that makes the crime more seriousConspiracy. Freed
case: Unregistered hand grenades. If conduct is not innocent
(having hand grenades), then people assume the risk that an added
circumstance element exists (that the grenades must be registered).
Strict Liability to circumstance element (no further mens rea
required)
Circumstance element is essential to the behavior being criminal
Statutory rape imposes strict liability on D to know the girl is
underage. Should the conspiracy be strict liability?
o MPC leaves for courts to decide.

o For attempt, they can be convicted

o Why require a higher mens rea for conspiracy?Maybe
because they may have changed their minds if not for the
EARLY intervention.

SCOPE OF THE AGREEMENT

Dealing with one big conspiracy or a number of smaller conspiracies?
Advantages of one big conspiracy:
D wants to avoid multiple conspiracy counts.
D does not want to continually get prosecuted later.
Advantages to D of a number of smaller conspiracies:
Fear of Pinkerton DoctrineIf A is just a member of a small conspiracy, does not
want to be held as an accomplice to everyone who is part of the big conspiracy
A fear of evidence and hearsay from many people
Overt act reqt: with one big conspiracy, then anyones act can satisfy this.
Venue (less choices of where it can be tried) Cuts down on possible locations
Statute of limitations is shorter possibly for smaller group.
A) Many separate conspiracies -- Kotteakos v. US
Broker of illegal housing loans. He is the only connection between all 8 coconspirators. None of the 8 care about the success or failure of the others.
This is a wheel without a rim.
Wheel without a rimH makes an arrangement with S1, S2, and S3 to
share inside info about in which they will give H inside info and he will
pay each a percentage of his earnings. There is more than one conspiracy
here because each S does not care what happens in the other H S
agreements. Success and failure are independent of eachother.

Wheel with a rimSuppose H wants S1, S2, and S3 to share info so he

can sell it to X. Now, there is a pooling of information to sell to X and a
connection between all of them Each knows there are others involved and
that the contribution of others is necessary to carry out the plan.

The Chain ConspiracySeveral layers of people dealing with a single

subject matter. A successive series of steps and each party knows or has
reason to know the existence of the other parties.

EXCUPLATION
SELF DEFENSE
A) In this justification defense, one must:
1) reasonable believe
2) such force is necessary to defend against the other persons
3) imminent use of unlawful force
4) and ones own use of force is not excessive

N
e

B) Self Defense with Racial Issues Built In--People v. GoetzGoetz attacked on subway
and shot all the black youths he thought were involved. Court rules that this was not
what a reasonable man would have done.
C) MPC 3.04: Looks like a subjective test because wording says believe and not
reasonably believes. BUT it is subject to 3.09(2): If I think aother will kill me, but
my belief is totally unreasonable, then if I am prosecuted for a form of homicide for
which negligence or recklessness is an element, then it is no defense.
BATTERED WOMENS SYNDROME (BWS) & SELF-DEFENSE
Wanting to use self-defense where you traditionally would be unable. Courts give women
chance to assert this defense.
A) Expert Testimony is allowed (State v. Kelly):
a. To negate a question of why they didnt leave. Experts tell reasons why
women dont leave
b. To help establish that D had a genuine and reasonable fear of imminent
danger
B) Death must be imminentState v. NormanHusband asleep when wife killed
him. Court says death must be imminent. Must be a high probability that husband
would have killed her (reasonable)
DUTY TO RETREAT
If a person has an opportunity to retreat, then there is no necessity to use deadly force.
Some states do not recognize the duty to retreat. Say a man must hold ones ground.
A) MPC 3.04 and 3.11(1) definition of unlawful force-- The use of force only if they
believe it is immediately necessary. (2): Limitations on self defenseDeadly force
not justifiable if they know they can retreat (only applies to deadly force). Duty to
retreat only applies to deadly force.
B) Castle ExceptionNo duty to retreat in your own home if D is aggressor. Also
applies for 2 people in the same dwelling. Also applies to the office.
C) Only required if it can be done safely.

INITIAL AGGRESSOR
Special rules about who starts the fight.
Person who starts the fight cannot argue self defense. However, if the initial aggressor
makes a good faith effort to withdrawl from the fight and communicates that, then he can
use self defense.
A) US v. PetersonGuys tried to steal Petersons property. They were initial
aggressors, but then Peterson got a gun and shot one of them in second round of
hostilities. He became the aggressor and was guilty of murder because the initial
aggressor withdrew.
B) Threat to property not enough
C) Exceptions:
a. Withdrawl-if initial aggressor withdrawls, he can then use self defense
b. Non-deadly forceif initial aggressor did not use deadly force, but the
victim does use such force, he can defend himself
DEFENSE OF NECESSITY
y
Choice of lesser evils. Breaking the law was the lesser of 2 evils. If I did not break the
law, something bad would happen.
A) This defense applies:
In a situation in which imminent harm will occur unless the law is broken.
The defendant must not have been at fault for the situation
The harm avoided is greater than the harm caused by breaking the law.
B) See MPC 3.02 handoutUnder MPC, you may sacrifice one life to save another
HYPO: Friends go mountainclimbing and storm comes. They break into cabin, eat
food, and burn furniture for food. They are charged with breaking and evtering, etc.
Under Illinois StatuteThey have a defense of necessity. The storm was not
their fault and the crimes they committed vs. death of people weighs in their
favor
Under NY StatuteStill have a defense. A court, though, may say that since
there is an imminence clause, and their deaths were not imminent, a court may
not give them a defense.
Under MPC 3.02: They would have a defense
SUPPOSE: The storm lifts after 3 hours. Also, any reasonable person would have
relaized it would let up quickly, but the 3 mountain climbers didnt realize this.
Under NY law there is no defense
Under MPC: Doesnt require reasonable belief that conduct was necessary, just
belief. But, under 3.02(2), they were negligent. So, they can be convicted of
any offense for which negligence is sufficient.
C) Dudley and Stephens caseKilled one man to survive after shipwreck. MPC allows
this, but the court did not.

D) Prison EscapePeople v. UngerPrisoner justified in escaping because he was

threatened with rape and GBH.
DEFENSE OF DURESS
Traditional Requirements:
1) Threat: Immediate/imminent threat
2) Bodily Harm: Of death or GBH
3) Produces Fear: That is reasonable to believe
4) Not applicable to murder
CA has adopted these standards.

A) MPC 2.09: MPC does not include requirements of 1 and 2. Requires only that the
threat is of unlawful force and is unable to be resisted by a person of reasonable firmness.
B) Duress vs. Necessity
1) Duress is an excuse defense (I did bad, but look at this) vs. Necessity is a
justification defense (I didnt do the wrong thing).
Traditional View: Necessity is choosing the lesser evil. So, duress is an excuse.
2) Also, Necessity Defense generally applies to events, but duress is cause by
people.
C) True case of Duress: Committing an act which is worse than the act I am being
threatened with. Duress can be a defense to anything, even if they didnt choose the lesser
harm, but acted out of duress.
INSANITY DEFENSE