Exam details:

Crim Law Attack Outline

Answer Format:
Defendant [#1] (Δ v. State)
Crime [#1]
The issue at hand is whether Δ can be found liable for the crime of [ crime ]. For Δ be held liable for the crime of [crime],
the following elements must be proven beyond a reasonable doubt (BARD): (1)____, (2)____, and (3)____.
Here, as to element (1), ___ … In conclusion, (absent an unanticipated defense, Δ would be found guilty of
Here, as to element (2), ___ … [crime].) or (Δ would not be found guilty of [crime] because the π would not
Here, as to element (3), ___ … be able to prove BARD that [element].)
Exam Format
2 hours long Purpose of the exam:
10 Questions short answer Prof. moving away from “do you know this and that” and
Each question worth 10 pts. towards “thoughts + consideration + philosophy” he hopes
Can use abbreviations the exam “captures more about the real world and asks
you to use common sense alongside what you know and
“be smart” about applying the law.

Theories of Punishment
Retributivist: Utilitarian: Punishing people for doing bad things will
People deserve to be punished for doing bad things. reduce the amount of bad things done.
 Reform, Incapacitation, General deterrence &
Individual deterrence
The Process/Structure
Procedure Roles
Stages of a case: Prosecutors:
(1) Investigation determine level of evidence, not strongly contested by
a. Police assemble evidence judges / grand juries; Determine severity of the charges.
(2) Dismissal / Diversion
a. Half arrest cases dismissed at early stage Determining Guilt
b. Defendant may be placed in pre-trial Proof Beyond a Reasonable Doubt: Hard to define, up to
diversion program Jury mostly tbh.
(3) Pre-trial release on bail/bond Preponderance: 51% likely
a. Bail reform act of 1984
b. SCOTUS - US v. Salerno Burden is on the Prosec. to prove every charge BARD, Def.
(4) Guilty Plea must meet Burden of Production for defense claims.
a. 90% of convictions due to guilty pleas /
plean negotions Jury Nullification:
(5) Trial Jury has right to nullify but are not instructed that they can,
a. Very few (3-4%) ever go to trial, most can’t be talked about by either side.
guilty plea or are dismissed. Discretion
Plea Bargaining Discretion in every step of the process:
Vast majority of cases end in a plea bargain. Prosec and 1.To arrest - police
Def negotiate an admission of guilt for light 2.To charge – prosec.
sentencing/info/etc. 3.Specific charges – prosec.
4.How to plead – def, prosec.
5.Sentencing – judge (sentencing min/max limit disc.)
for Jury: nullification, vague standards(reasonable doubt)
Essential Elements of a Crime
Actus Reus: Δ Committed a voluntary act (or omission Mens Rea: Δ had a culpable mental state as specified in the
when there is duty to act). definition of the offense.
Factors:
Past Common Law:
Voluntary a. Specific intent- the desire to do the act and to achieve
Common Law: Within person’s control. a specific result. (First degree murder, larceny,
MPC: not voluntary if: reflexive/convulsive,
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asleep/unconscious/hypnotised, or body movement as embezzlement, robbery, burglary, attempt, conspiracy,

result of outside force. accomplice)
Wrongful b. Malice- intentionally and/or with reckless disregard of an
Conduct or Omission obvious or known risk (Common law murder and arson)
Omission: Generally no duty to act unless there is c. General intent- general awareness of the factors
special relationship rendering duty of care OR peril constituting the crime, not the intention to achieve a
caused by Δ OR following voluntary assistance (once specific result. (Battery, kidnapping, rape, false impr.)
you start you must finish.) d. Strict liability- no mens rea at all (Statutory rape, public
S.R.s: relation (parent to children, spouses, etc.) or welfare crimes)
contractual (Dr. to health, Acct. to finance, Esq. to legal i. Traditional common law- Guilty mind not required (can
interest, etc.) be strict liability) when offense is to protect public health
Status exception: Cannot punish involuntary act or or safety (morisette)
condition if it is unavoidable consequence of one’s ii. Modern common law- Okay to find strictly liable those
status or being (i.e. homelessness). who stood in “responsible relation to the situation” and
Specified in advance by statute: had “authority and responsibility” to deal with the
Common Law: Defer to legislature on crim. situation. (Dotterweich)
Specificity: A law must give a person of ordinary iii. Drugs- possession can be strict liability bc ass. the
intelligence fair notice that the conduct is forbidden by public knows what drugs are illegal (adkins)
the law and must not give unfettered discretion of e. Default Distribution rule- mens rea applies to all
enforcement to police. Statute should include location, material elements of statute unless there is a logical split
action, and mens rea. in the statute (ryan, dotterweich)
Concurrence: Δ requisite mental state existed at the
time the voluntary act occurred. MPC:
Purposely- conscious desire to achieve the result
Causation: Actus Rea was the actual and proximate Knowingly- awareness to a practical certainty that the
cause of the harm done. conduct will cause the result
Recklessly- aware of the substantial and unjustifiable risk
CL: actual cause and proximate cause. Actual being and disregards it
obvious, proximate depends on being “reasonably Negligently- should have been aware of a substantial and
foreseeable” (i.e. drunk driving -> killing someone unjustifiable risk
because you are operating a machine capable of killing Strict liability (no jail time, only violation)
someone quickly and have impaired Pure strict liability- no mens reas as to any objective, rare
responses/reflexes.) Impure strict liability- no mens rea for a least one objective,
common
MPC: “But for” test: Would result have happened if Act Reckless default rule- if no mens rea is specified for a
was not performed? material element, it will be satisfied by at least reckless or
higher (reckless, knowingly, purpose) (lima) MPC 2.03
Omission
Common Law: Generally, no duty to act. MPC: Liability for omission only when duty to perform the
UNLESS: (1) legal duty, (2) status relationship; (3) omitted act is otherwise imposed by law; OR when defined by
voluntarily assumed care of another and secluded help, law
(4) creation of peril, or (5) statute.
Who is the Reasonable Person? [Probably will be on exam!!]
[Legal Fiction] Hypothetical figure who represents what a “reasonable person” would do in a certain situation/in
response to certain stimuli.
The definition of the reasonable person and what they would do is subjective, but the way it is used is objective (i.e. an
objective comparison between the consensus for what a reasonable person would do and what the Δ did.)

Factors in figuring out who the reasonable person is/what the reasonable person would do:

 Social Norms: Reflects norms in morality and behavior that society largely agrees upon.
 Values: Reflects the things that we as a society understand to be valuable (i.e. preservation of life)
 Personal faculty: the understanding we have of the mental state of people placed in a situation (i.e. the fear
and emotional trauma of a battered wife leading to justification for self defense even without immediate danger).
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Also people who we recognize don’t possess the mental space most do (children and mentally ill)
 Relationships: The way that relationships, professional or personal, influence our behavior (i.e. duty of care to a
spouse, or duties taken on in a professional role i.e. doctor-patient, lawyer-client)

The reasonable person is emergent, meaning that the behavior of the reasonable person evolves over time with
society and the law.

Goetz: Used in a majority of jurisdictions, the reasonable person has the past experiences of the defendant (i.e. man
formerly mugged more jumpy at strangers approaching him like Goetz, or battered spouses more fearful of their spouses
bc of conditioning…)

The Process/Structure
Model Penal Code (MPC) important sections
MPC §1.05 - All Offenses Defined by Statute;  Application of General Provisions of the Code
MPC § 2.01 – Voluntary Act; (2) not including reflex, sleep, etc.; (4) inc. Possession.
MPC § 2.02 – GenReq of Culpability; (1)(2) Purposely, Knowingly, Recklessly, & Negligently; (3) culpability req’d unless
otherwise provided by law, filled by PKR but not N; (4) Prescribed Culpability Req. Applies to All Material Elements.
MPC § 2.03 – Causal relationship between conduct and result
MPC § 2.04 – Ignorance or Mistake; (a) ignorance must negative the culpability factor req’d, or (b) the law provides state
of mind established by ignorance constitutes a defense.
MPC §2.05 – Strict liability (when culpability doesn’t matter) determined by law.
MPC § 2.06 – Complicity; when (1) legally accountable for other; (3) facilitated offense. (5) Legally incapable may be
guilty under complicity for (1).
MPC § 2.09 – Duress; Defense when coerced under use or threat of force to person or another that would not be
reasonable to resist.
MPC § 3.02 – Justification Generally: Choice of Evils; Conduct believed necessary to avoid harm or evil that is greater
than caused by crime (w/ some exceptions by code/law). Unavailable for negligence.
MPC § 3.04 – Use of force in self defense
MPC § 3.07 – Police use of force
MPC § 3.09 – Mistake of Law as to Unlawfulness of force or legality of arrest
MPC § 5.01 – Criminal Attempt
MPC § 5.02 – Criminal Solicitation
MPC § 5.03 – Criminal Conspiracy
MPC § 5.04 – Incapacity/Immunity to Solicit. Or Consp.
MPC § 5.05 – Grading of Criminal Attempt, Solicitation, & Conspiracy; (2) Mitigation in cases of lesser danger; (2) Multi
Convictions Barred.
MPC § 210 – Criminal Homicide if P, K, R, or N causes death of another human. C.H. is (2) murder, (3) manslaughter, or
(4) negligent homicide.
MPC § 210.2 – Murder; P or K, or R under extreme indifference to value of human life. R under indifference presumed
when committing a felony (felony murder). 1st degree felony
MPC § 210.3 – Manslaughter; R or Murder committed under influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse (i.e. heat of the moment). Excuse reasonableness determined from
POV of actor. 2nd degree felony.
MPC § 210.4 – Negligent Homicide; committed through N; 3rd degree felony.
Classification of Crimes
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Felony v. Misdemeanor
Felonies: all crimes punishable by imprisonment of >=1 year or death.

Misdemeanors: all crimes punishable by imprisonment of <1 year only or by fine only.

Malum In Se vs Malum Prohibitum

Malum in se: Crimes that are wrong in and of themselves; inherently evil. Ex: battery, larceny, often crimes of moral
turpitude (act that gravely violates the accepted standards of the community/society).

Malum Prohibitum: Crimes that are wrong because they are prohibited by the legislature. Ex: traffic violations, drug
possession.
Merger Rule
If a defendant commits a single act that simultaneously fulfills the definition of two separate offenses, merger will occur.
This means that the lesser of the two offences will drop out, and the defendant will only be charged with the greater
offense.
Murder / Criminal Homicide
Classification Actus Reus Mens Rea
The killing of a human being by another
Malice aforethought – intent to kill or seriously injure/maim, + some
Traditional CL: human being.
exceptions (felony murder, depraved heart [extreme negligence/disregard]);
Murder Year and a day rule: must be cause
Premeditated/planned within the last year +1 day
death in 366 days or less.
Cause death during the course of
committing a felony. but-for (would not
Felony Murder have happened but for the felony) +
Strict Liability
proximate cause.
Premeditated and deliberate – considered and weighed his decision to kill.
CL: Murder 1 (1st °) Includes (1) planning, (2) Motive, and (3) Nature of Killing (i.e. mental state
(Jurisdictions w/ 2 deg. only) during killing).
Premeditation can mean seconds, no minimum period of time.
Not Premeditated but intentional (i.e. heat of the moment); must be intent to
kill.
CL: Murder 2 (2nd °) Ask whether defendant was in a state of passion or whether reasonable
person should have cooled off
Purposely or Knowingly or Recklessly [under circumstances manifesting
extreme indifference to the value of human life] UNLESS due to extreme
MPC Murder Murder of a human being (see trad. mental or emotional disturbance (in which case mitigated to
(§210.2(a)) Common law) manslaughter) for which there is reasonable explanation or excuse [which
can be trauma over time]
Voluntary: Intent to kill but with adequate provocation (decided by judge,
CL: Manslaughter: factors like: Was actor in his own person (clouded mind, etc.), was there a
trigger?, Reasonable person cool off)
Voluntary/Involuntar
y Involuntary: Killing without Malice aforethought. Negligent or Reckless. weigh
the actor’s conduct against the social utility of such conduct
MPC Manslaughter/ Murder mitigated by Extreme Emotional Distress (a la murder UNLESS) or
Mere reckless killing (no intent to murder, but reckless disregard for life)
Negligent Homicide
Inchoate Offenses
Conspiracy: When 2 or more people agree to commit a crime/plan to Solicitation:
commit a crime CL:
CL: Actus Rea: utters the offer;
(1) An agreement Mens Rea: the specific intent to commit the
(2) between two or more persons; target offense
(3) To commit a crime; -Belief that crime is possible is sufficient
(4) With the purpose to enter into the agreement; and - When agent unaware, ∆ is guilty for the
(5) With the purpose to achieve the crime crime committed
- When agent aware, ∆ guilty of solic and
Bilateral requirement: 2 guilty minds needed (i.e. 1 criminal + 1 agt guilty of crime
undercover cop is not conspiracy). Guilty upon Formation
Solicitation merges into completed ctime
Req: knowledge of illegal use; & intent for use to further the crime DEFENSES
Legal Impossibility IS defense
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No Withdrawal: Once agreement, crime is committed and ∆ is guilty, but -Act, if completes, wouldn’t be crime. – not
withdrawal can limit further liability if: guilty
(i) ∆ gives notice; and Factual Impossibility is NOT defense.
(ii) notice is given at time when they can abandon their plans -Circ beyond actor’s control – solicit to
Pinkerton Doctrine – Conspirator is liable for any substantive offense pickpocket w/ nothing in pockets – still guilty
that is reasonably foreseeable and committed in furtherance of
conspiracy MPC:
∆ Guilty if (1) purpose is to
MPC: Unilateral Approach (1 guilty mind needed). Requires Overt Act in promote/facilitate crime and (2) solicits,
Furtherance. Formation is not enough. encourages, etc. person to (i)engage in
crime or (ii) show involvement in the crime.
Renunciation Defense: only if **Solicitor cannot be guilty of attempt**
(1) voices withdrawal and Solicitation merges into the completed
(2) prevents crime from occurring crime, can’t be charged for both.

Under MPC, a single Δ can be guilty of conspiracy if Δ solicits and other Defense: Renunciation only
person merely agrees but doesn’t have the intent to commit the crime (i.e. (1) Completely renounce criminal intent
an undercover cop agreeing to commit a crime). &
(2) persuade or prevent crime from
Rejects Pinkerton Doctrine taking place
Actors vicariously liable for crimes committed by coconspirators only
when they had same intent Attempt  Principal crime
Conspiracy Merges in MPC, does not merge in CL Solic to join conspiracy  Conspiracy
Solic to commit TO  Principal crime
Attempt:

CL: NEED: ∆ must have SPECIFIC INTENT to commit the target offense – mere recklessness will not suffice – intent
can be inferred by conduct, risk to V so great as to assume intent to kill.
Intent Plus Test: Att = intent + some act
- look at how much movement away from from of intent and how it establishes intent
Equivocality Test: Att = intent + uneq act
- the point when ∆’s action shows intent – his action is taken alone – when his actions unambiguously manifest
criminal intent
Last Act Test: Att = performing last act necessary
- e.g. ∆ pulls trigger
Proximity Test: Att = act in suff. prox. That creates reas prob. crime will occur
actor has ability to commit almost immediately

MPC:
Must have SPECIFIC INTENT. Is the majority approach.

Substantial Steps Test: Did Δ take actions that constitute substantial steps towards culminating in the act of the crime? 7
ex in MPC:
1. lying in wait;
2. enticing the victim to go to the scene of the crime;
3. investigating the potential scene of the crime;
4. unlawfully entering a structure or vehicle where the crime is to be committed;
5. possessing materials that are specially designed for unlawful use;
6. possessing, collecting, or fabricating materials to be used in the crime’s commission;
7. soliciting an innocent agent to commit the crime
Abandonment:
Valid if (1) ∆ abandons crime or prevents it from being committed, and (2) ∆’s conduct manifests complete
renunciation of criminal purpose (undoes what they did to contribute). No duty to disclose

Complicity/Accomplice Liability: Doctrine of Derivative Liability, NOT own Offense (but still a separate charge)
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Common Law Definitions

Principal (prev. Principal 1st deg.)
The principal is the person who commits the illegal act or who causes an innocent agent to do so.
Accomplice (prev. Accessory before the fact AND Principal 2nd deg.)
The accomplice is the person who aids or encourages the principal to commit the illegal conduct.
Accessory After the Fact
An accessory after the fact is a person who aids another to escape knowing that he has committed a felony.
An accessory after the fact is ONLY liable for the less serious offense of being an accessory after the fact (i.e., NO
accomplice liability).

Accomplice is one who:

(1) Aids, abets, or facilitates the commission of a crime committed by the principal;
a. Assistance must be effectual, but any amount of aid is sufficient.
b. 3 forms: physical conduct, psychological influence, and/or omission.
(2) With the intent that the crime be committed.
a. Must possess the same mental state (intend the crime to happen, same as principal offense) so set-ups
don’t count.
b. Under Maj. Approach, mere knowledge of the crime is not enough to be an accomplice (AKA no duty to
stop crime you know is happening if you are not helping in any way.)
c. Acc. Can be charged for crimes of recklessness and negligence.

Accomplices are held liable for crimes that the principal committed (Vicarious Liability) AND all other crimes that were
natural and probably consequence or foreseeable result (i.e. loan a gun for robbery and someone dies -> liable for the
murder).

Withdrawal and Repudiation:

Withdrawal is a valid defense to accomplice liability if the accomplice withdraws his involvement BEFORE the crime
becomes unstoppable. Repudiation is a sufficient withdrawal for mere encouragement. If the accomplice’s involvement
went beyond mere encouragement, then the accomplice must attempt to neutralize his assistance for the withdrawal to
be sufficient.
Other Crimes
Offenses against the Person Offenses against Property

Battery is the: Larceny consists of:

(1) Unlawful (without legal excuse); (1) A taking (obtaining possession)

(2) Application of force;  The defendant cannot take/obtain possession of
 The force can be applied by a third party acting property by trespass if the defendant is in lawful
under the defendant’s direction or by an object possession of that property (i.e., cannot be larceny,
controlled by the defendant. could be embezzlement),
(3) To the person of another; (2) And carrying away;
 The application of force to an object near, carried  The carrying away requirement is satisfied by even
by, or attached to the victim is sufficient (e.g., a slight movement (e.g., inches)
kicking a cane used by the victim). (3) Of the personal property (not real property) of
(4) That results in bodily harm or offensive contact. another;
 The touching, however slight, must result in (4) By trespass (without consent);
bodily harm (e.g., a bruise) or an offensive (5) With intent to permanently deprive (i.e., to steal).
touching (e.g., an unwanted kiss).
Embezzlement consists of:
Battery is a general intent crime (intent to cause injury is (1) The fraudulent conversion;
NOT necessary — only the intent to do the unlawful act is  any act that demonstrates the intent to permanently
required). deprive another of their property.
Assault is: (2) Of the personal property of another;
(A) An attempt to commit a battery; OR (3) By a person in lawful POSSESSION of that
(B) Intentionally placing another in apprehension of property.
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imminent bodily harm (Apprehension Assault)  Custody of the property is insufficient — the
If there has been physical contact with the victim, the defendant must be in lawful possession of the
crime can only be battery, not assault. property when the conversion occurs. Possession
False imprisonment is the: involves a greater scope of authority to deal with
(1) Unlawful (without legal excuse); property than does custody (e.g., employees usually
(2) Confinement of a person; only have custody of their employer’s property.
a.Confinement of a person involves using actual Thus, they commit larceny if they take it).
force, threat of force, or a show of force to: (4) With intent to permanently deprive (i.e., to steal).
i. Make a person go where he does not want to
go: False Pretenses consists of:
OR (1) Obtaining TITLE;
ii. Preventing a person from going where he (2) To the personal property of another;
desires to go if no alternative routes are (3) By an intentional false representation;
available to him.  The victim must rely upon the false representation,
and that reliance must cause the victim to pass title
The MPC requires that the confinement “interfere to the defendant.
substantially” with the victim’s liberty. Without valid  The defendant must either have known the
consent. statement to be false or have intended that the
victim rely on the false representation.
Exam Tip. False imprisonment is a general intent crime (4) Of a material past or present fact (not opinion);
(intent to cause injury is NOT necessary — only the (5) With intent to permanently deprive (i.e., intent to
intent to do the unlawful act is required). steal).
Kidnapping Larceny by trick when the defendant obtains
POSSESSION (NOT title) of the victim’s property by the
Modern statutes define kidnapping as unlawful misrepresentation. Otherwise the same.
confinement of a person that involves either:
(A) Some movement of the victim; Robbery consists of:
OR (1) A taking and carrying away;
(B) Hiding the victim. (2) Of the personal property of another;
(3) From the other’s person or presence;
Exam Tip. Kidnapping is a general intent crime (intent to
cause injury is NOT necessary — only the intent to do  The property taken must be on the victim’s person
the unlawful act is required). or within the victim’s reach or control (i.e., in the
Burglary presence of the victim).
(4) By force or threat of force;
1. Traditional common law- (1) breaking, (2)  Threats must be made to the victim, a member of
entering (can be doors inside), (3) the dwelling of the victim’s family, or some person in the victim’s
another, (4) at nighttime, (5) with intent to commit presence.
a felony. (5) With the intent to permanently deprive.
2. Modern common law- (1) entering a building, Arson
(2) as a trespasser (knowingly or recklessly), (3) Common law arson consists of:
(1) The malicious;
With intent to commit theft, rape, to inflict
a. intentional OR with reckless disregard of an
grievous bodily harm, or to do unlawful damage
obvious risk
to the building or anything therein (2) Burning;
a. Trespasser- A person is a trespasser if a. The fire must damage the structure, not just
enters premises of another knowing he is contents.
entering in excess of the permission or (3) Of the dwelling of another.
being reckless whether entering in a. a structure that is used regularly for
excess of permission (tv case) sleeping purposes, even if used for other
purposes such as conducting a business.

Defenses: Justifications/Excuses
Affirmative Defense Negating Defense
Proves fact that negates/reduces/mitigates the legal Disproves element of the crime (actus reus or mens rea)
consequences.
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Insanity or mental illness, involuntary intoxication, mistake of

Self Defense, Necessity, Duress, Voluntary Intoxication, fact (mens rea)
Entrapment

Burden of Persuasion Burden of Production(?)

Justification Excuse
Focusing on the Action: Although criminal in other Focusing on the Actor: Although the action was criminal, the
circumstances, the circumstances around the act make it state of the actor means they shouldn’t be held accountable.
not a crime.

Self Defense (Justification)

CL:
a. Perfect defense (exonerates)- An (subjective) honest and (objective) reasonable belief in the need of force to repel an
immediate threat to one’s physical well-being
b. Imperfect defense (mitigates)- An honest but unreasonable belief in the need of force…
c. Duty to retreat- no
d. Initial aggressor doctrine- Initial Aggressor forfeits right to use deadly force in self-defense unless:
i. Withdraws and communicates (verbal or conduct) withdraw to victim; OR
ii. The original victim “suddenly escalates” a nondeadly fight into a deadly one

MPC (3.04)- can use self-defense when an actor believes that such force is immediately necessary for the purpose of
protecting himself against (1) serious bodily injury, (2) kidnapping, or (3) rape.
a. (3.09)- If belief of harm is reckless or negligent, defense not available
b. No Initial aggressor doctrine
c. Duty to retreat- yes, as long as can do safely
i. Exception- home, place of work, (castle doctrine)
1.Exception to the exception- if both parties in same place of work and party is initial aggressor
d.Use of deadly force- use of deadly force must be proportional, aka must be threatened with deadly force
Necessity (Justification)
Common Law:
Necessity defense = choosing the lesser of two evils when there is no alternative.
 Mens Rea - Honest belief that conduct will avoid a greater harm/evil (subjective)
 Natural Cause of evil - must be a “natural force” such as storms and shipwreck, weather and freezing, etc.
 No way out – no alternatives available.
 No Fault- cannot be their fault
 Imminency- Must be so imminent and compelling as to raise a reasonable exception of harm
 Ending criminal conduct ASAP: You can break out of prison if you are in danger of serious harm from the
inmates and guards won’t do anything about it, BUT you must turn yourself in to the police as soon as you are
safe from the threat (as soon as you break out) because the threat has subsided, and the crime of being a
fugitive is ongoing.

MPC:
Justified if
 Conduct must be necessary to prevent harm to self or another
 Harm caused must be less than the harm the actor seeks to avoid
 The statute must not make exception/ legislature must not have plainly expressed intent to exclude the conduct
in the particular situation.
 Unavailable for charges including recklessness or negligence.
Not limited to natural disasters
Duress (Excuse)
Common law MPC
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Defense valid if coerced by an: Defense valid if coerced by

 Imminent and serious threat,  the threat to use force
 From another person,  that a (objective) reasonable person would not be
 Of death or serious bodily harm, able to resist.
 To defendant or a close family member,
 That produces reasonable fear that threat will be No defense- if recklessly or negligently placed himself in the
carried out, situation
 With no reasonable opportunity to escape.
Possible defense to murder
No defense if created peril “willfully or wantonly”
No Defense to murder
Mistake of Fact (Excuse) Mistake of Law (Excuse)
Crime was committed, but due to a mistake of fact (lack Criminal act was committed but Δ didn’t know the act was
of info/wrong info), the Δ did not have the requisite mens illegal.
rea.
Common law:
(example: Mistaking your friend’s house with his Ignorantia juris non excusat
neighbor’s house and entering with the spare key when Or
you have permission from your friend but not his Ignorance of the law is no excuse.
neighbor. Did not know and thus did not intend to illegally
enter another’s house.)
MPC
Common law reasonable reliance- §2.04
 Specific intent crimes - An honest (subjective)
mistake of fact is a defense to a specific intent Exonerates when:
crime regardless of whether the mistake was  Δ acts in reasonable reliance upon an official
unreasonable. statement of the law, afterward determined to be
 general intent crimes- (objective) reasonable invalid or erroneous, contained in
mistake of fact exonerates if it negates malice o a statute or other enactment;
 Strict liability- no defense o a judicial decision, opinion or judgment;
 Mitigation principal- if unreasonable BUT honest o an administrative order or grant of
mistake of fact, the offense will be mitigated to permission; or
lower charge. o an official interpretation of the public officer
MPC or body charged by law with responsibility
Mistake of fact or law exonerates if the mistake negates for the interpretation, administration or
requisite mens rea enforcement of the law defining the
 Incomplete mistake (2.04(2)) offense.
o not available if the Δ would [still] be guilty  Proven by a preponderance of evidence (51%
of another offense had the situation been likely).
as he supposed... reduce the grade and
degree of the offense to the offense he Basically when an authority of the law wrongly informs Δ of
would be guilty of if the situation had the legality of an act.
been as he supposed.
 Mitigation principal- if objectively unreasonable
BUT honest mistake of fact the offense will be
mitigated to lower charge.

Factual Impossibility Legal Impossibility

Factual Impossibility means the crime charged could not True legal impossibility: when a person engages in conduct
have possibly been committed. Even if the crime is they believe to be prohibited, but what they do is not a
factually impossible, Attempt of the crime can still be crime. A complete defense, usually only for Attempt.
valid
 Exam details:

Intoxication (Justification) Entrapment (Justification)

Involuntary Intoxication is valid when the Δ is so Majority (subjective test)
intoxicated that the faculties are impaired to a degree entrapment defense available when government agent
demonstrating that the requisite mental state is lacking. implants the disposition to commit an offense. And the
person readily acquiesces
Voluntary Intoxication is similar but only for specific intent  predisposition (subjective predisposition): cannot
crimes and not for general intent crimes. claim if Δ is predisposed to illegal conduct,
o Can be demonstrated by ready acquiescence
Will not prove lack of general intent Minority (objective test) MPC
(recklessness/negligence) Shifts attention from the record and predisposition of the
particular defendant to the conduct of the police and the
Affirmative defense so Δ must prove lack of intent likelihood, objectively considered, that it would entrap only
those ready and willing to commit crime.”
Mental Illness/Insanity (Justification)
1. Majority Common Law- Defendant must prove he was incapable of either (new minority)
a. Understanding the nature and quality of his actions, or
b. Knowing that the act was wrong
i. Wrong- incapable of realizing that society objectively morally condemns the act (m’naghten)
ii. Decree of God, defense available for those who believe they are acting on the order of a higher
being, thus overruling any notion of subjective morality. (seravvo)
2. MPC: Defendant lacked the substantial capacity either to appreciate criminality of his actions, or to conform his
conduct to the requirements of the law (either unable to tell it was wrong or unable to stop themselves from
doing wrong.)
a. Mental Illness/Lack of Substantial Capacity;
AND
i. Unable to recognize that his/her actions are wrong
OR
ii. Unable to refrain from doing the wrong thing.

Guilty but mentally ill (14 states and Michigan)

1. Alternative to the Insanity Defense, plead guilty but mentally ill and get sent to psych treatment, and then
post-psych treatment they finish the regular sentence.
b. If they are mentally ill at time of offense, but cannot prove
i. Appreciate the wrongfulness of their conduct, or
ii. Conform their conduct to the requirements of law
c. Result- Psych treatment and regular sentencing
Fitness to Stand Trial
A criminal defendant must be competent to stand trial. To be competent, under the Dusky test, the defendant must have:
 Sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding;
AND
 A rational as well as factual understanding of the proceedings against him