Criminal Law Outline

 Elements of a Crime
 Legality
 There can be no crime without law, no punishment without law
 Vagueness/Overbreadth
 Actus Reus
 The “actus reus” of an offense is the physical, or external, component of a crime.
 Elements
 Voluntary Act or Omission
 Social Harm
 Common Law Voluntary Act
 A voluntary act is a willed muscular contraction or bodily movement by the
actor.
 An act is willed if the bodily movement was controlled by the mind of the actor.
 MPC Voluntary Act
 Essentially same as C/L
 MPC does not define “voluntary act” but provides examples of involuntary
actions: bodily movements while unconscious or asleep.
 Voluntary Act
 A voluntary act is a movement of the human body that is, in some minimal
sense, willed or directed by the actor. (Pointing a gun and shooting someone)
 Involuntary acts are those over which the individual had no conscious
control. (Sleepwalking)
 Ex: If you drive when you knowingly have seizures.
 Omissions
 Legal duty to act
 The legal duty may be based on
 (1) relationship (e.g., parent must provide food, shelter, and clothing to a
child);
 (2) statute (e.g., many states have a law that requires medical providers
and others to report suspected child abuse);
 (3) contract to provide care (e.g., nursing homes often enter into a
contract to provide medical services to residents);
 (4) voluntary assumption of care that isolates the individual (e.g., taking
a sick person into one’s home may result in a duty to provide care);
 (5) creation of peril (e.g., someone who pushes another who cannot
swim into a deep lake must take reasonable steps to rescue him);
  (6)duty to control the conduct of another (e.g., a business executive may
have a duty to prevent the company chauffeur from speeding);
 (7) duty to landowner (e.g., a theater owner has a duty to provide
reasonable emergency exits for his patrons).
 Moral Duty
 The criminal law does not impose responsibility for failure to live up to a
moral duty.
 Mens Rea
 Mens Rea means a guilty mind; a guilty or wrongful purpose; a criminal intent.
 Elemental Approach
 Material Element relates to conduct and to the defense.
 Ex: Spitting in Orleans Parish—Prosecutor only has to prove that “D”
knowingly spit. Not that he knowingly spit in Orleans Parish.
 The prosecutor must prove each “material element” of the charged offense with
the particular state of mind required in the definition of that crime.
 Guilt CANNOT be based simply on proof that the defendant committed the
actus reus of an offense in a morally blameworthy manner.
 Attendant Circumstances: An attendant circumstance is any statutory material
element that is not a result or conduct—most likely consisting of the object of
the conduct.
 Common Law
 Intentionally
 A person commits the social harm of an offense intentionally if:
 (1) it was her conscious object to cause the result, or
 (2) if she knew that the result was virtually certain to occur because of
her conduct.
 Transferred Intent Doctrine
 Common Law: Intent can be transferred from one victim to another or
one piece of property to another, but not from one type of act to
another.
 Knowledge or Knowingly
 A persons acts knowingly if she either
 (1) is aware of the fact;
 (2) correctly believes that the fact exists; or
 (3) Suspects that the fact exists and purposely avoids learning if her
suspicion is correct. (Willful blindness)
 Malice
  A person acts with “malice” if she intentionally or recklessly causes the social
harm of the offense.
 Specific Intent and General Intent
 Specific Intent Offenses
 Specific intent offense is one that explicitly contains one of the following
mens rea elements in its definition: (1) the intent to commit some act
over and beyond the actus reus of the offense; (2) a special motive for
committing the actus reus of the offense; or (3) awareness of a particular
attendant circumstance.
 General Intent Offenses
 Any offense that requires proof of a culpable mental state, but which
does not contain a specific intent, is a “general intent” offense.
 Intent at MPC
 Four levels of Culpability
 Purposefully (Subjective)
 Consciously desired the outcome (intentionally under CL)
 Knowingly (Subjective)
 Aware that the result is practically certain (General Intent under CL)
 Recklessly (Subjective)
 Consciously disregard a substantial and unjustifiable risk
 Negligently (Objective)
 Should be aware of a substantial and unjustifiable risk

 Ex: If a person kills two people, they may have purpose for one and knowledge
of another. (Placing a bomb in a car that—you want to kill “A” but you know B
will likely die also).
 Willful Blindness
 A defendant has duty to inquire when the facts are highly suspicious.
 Strict Liability
 An offense is “strict liability” in nature if commission of the actus reus of the
offense, without proof of a mens rea, is sufficient to convict the actor.
 Offenses that do not require the mens rea element.
 Public Welfare Offenses
 Strict liability most often applies in relation to “public welfare” offenses.
 The penalty for violation of a public welfare offense is usually minor.
 Ex: Motor vehicle laws.
 Non-Public Welfare Offenses
 Rape
  Mistakes of Fact
 Common Law Mistake of Fact
 A defendant is not guilty of specific-intent crime if her mistake of fact
negates the specific-intent element of the offense.
 Ignorance of Law
 Ignorance is irrelevant.
 MPC
 Ignorance or mistake as to fact is a defense if :
 It negates the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense.
 Common Law Mistake of Law
 In general, knowledge of the law is not an element of an offense. Moreover,
a mistake of law—even a reasonable one—does not ordinarily relieve an
actor of liability for the commission of a criminal offense.
 Exceptions
 A defendant is not guilty of an offense if his mistake of law, whether
reasonable or unreasonable, negates an element of the crime charged.
 A person is not guilty of a criminal offense if, at the time of the offense,
he reasonably relied on an official statement of the law, later determined
to be erroneous, obtained from a person or public body with
responsibility for the interpretation, administration, or enforcement of
the law defining the offense.
 Causation
 A person is not guilty of an offense unless she is an actual cause of the ensuing
harm. Both the common law and MPC provide that the conduct is the “actual
cause” of the prohibited result if the result would NOT have occurred “but for”
the actor’s conduct.
 Common Law
 Cause-in-fact
 “but for test”
 The defendants conduct is a cause-in-fact of the prohibited result if the result
would not have occurred “but for” the defendant’s conduct.
 Ex: D drives a tractor recklessly—D is the causation of the victims death
because “but for” D’s actions the victim would not have died.
 Exceptions
 In a case where two defendants simultaneously bring about the death of a
person and the “but for” test is defeated—the substantial factors test may be
adopted.
  Substantial factor test: A defendant’s conduct is the cause-in-fact of the
prohibited result if the subjects conduct was a “substantial factor” in
bringing about the result.
 Proximate Cause
 A person who is an actual cause of resulting harm is not responsible for it
unless she is also the proximate (or “legal”) cause of the harm.
 Proximate cause is satisfied if the intervening cause was (1) intended or
reasonably foreseeable and (2) not too remote or accidental as to fairly hold the
defendant responsible.
 Issues of proximate cause generally arise when an intervening force exists. I.e.,
when some but-for casual agent comes into play after the defendant’s voluntary
act or omission but before the social harm occurs.
 Ex: Act of god, i.e., an event that cannot be traced back to any human
intermediary—an act of an independent third party which accelerates or
aggravates the harm caused by the defendant or which causes it to occur in
an unexpected manner—an act or omission of the victim that assists in
bringing about the outcome.
 Keep in mind
 Proximate causation analysis is not a matter of applying hard and fast rules
leading to some scientifically “correct” outcome; instead, it is an effort by the
fact finder to determine, based on policy considerations or matters of
fairness, whether it is proper to hold the defendant(s) criminally responsible
for a prohibited result.
 Homicide Common Law
 Homicide is the killing of a human being by another human being.
 General
 “Human Being”
 At the Start of Life
 The common law provides that a fetus is not a human being until it is born
alive.
 At the End of Life
 At common law, a person is legally dead when there is a total stoppage of
the circulation of the blood and a permanent cessation of the functions of
respiration and heart pulsation.
 Definition of “Murder”
 Common law murder is a killing of a human being by another human being with
malice aforethought.
 Malice
  A person acts with malice if she unjustifiably, inexcusably, and in the absence
of any mitigating circumstance, kills a person with any one of the following
four mental states: (a) the intention to kill a human being; (b) the intention
to inflict grievous bodily injury on another; (c) an extremely reckless
disregard for value of human life (often called “depraved heart” at common
law); or (d) the intention to commit a felony during the commission or
attempted commission of which a death accidentally occurs (the “felony-
murder rule”). There four categories of malice are considered below.
 Aforethought
 Originally, the term aforethought meant that the actor thought about the
killing beforehand, i.e., that he premeditated the killing. Over time, the term
lost significance.
 Intentional Killings At Common law
 Murder: Intent to Kill
 Awareness that the death of another would result from one’s actions, even if
the actor had no particular desire to achieve such a consequence.
 Thus, intentional or knowing homicide was murder unless the actor killed in
the heat of passion engendered by adequate provocation, in which case the
crime was manslaughter
 Murder: Intent to Inflict Grievous Bodily Injury
 Knowledge that the conduct would cause serious bodily injury was generally
assimilated to intent and was deemed sufficient for murder if death of
another actually resulted.
 Murder: “Depraved Heart” (Extreme Recklessness)
 A person who acts with what the common law describes as “depraved heart”
or an “abandoned and malignant heart” is one who acts with malice
aforethought. If a person dies as a result of such conduct, the actor is guilty
of murder, although the death was unintended.
 Conduct that manifests an extreme indifference to the value of the human
life.
 Thus a person might be liable for murder absent any actual intent to kill or
injure if he caused the death of another in a manner exhibiting a wanton and
willful disregard of an unreasonable human risk or, in confusing elaboration,
a wickedness of disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty.
 Intent to commit a felony (Felony Murder Rule)
 Assigns strict liability for homicide committed during the commission of a
felony.
  At common law, a person is guilty of murder if she kills another person, even
accidentally, during the commission or attempted commission of any felony.
 Common Law: Manslaughter
 Common law manslaughter is an unlawful killing of a human being by another
human being without malice aforethought.
 Voluntary (Heat-of-passion)
 An intentional, unjustified, inexcusable killing, which ordinarily is murder,
constitutes manslaughter (or voluntary manslaughter) if it is committed
in sudden heat of passion, as the result of adequate provocation. This,
the provocation doctrine functions as a full defense to murder, and as a
partial defense overall (as the defendant is guilty of manslaughter).
 Elements of the defense
 Adequate Provocation
 The provocation must be such that it might “inflame the passion
of a reasonable man and tend to cause him to act for the moment
from passion rather than reason.”
 State of Passion
 For the provocation doctrine to apply, the defendant must kill the
victim while in a state of passion, not after he has cooled off.
 Suddenness
 The killing must occur in sudden heat of passion. That is, the
defendant must not have had reasonable time to cool off.
 Causal Connection
 A causal link between provocation, the passion, and the fatal act
must be proved.
 Involuntary
 A person who kills another person in a criminally negligent manner is
guilty of involuntary manslaughter.

 MPC Homicide
 The MPC provides that a person is guilty of criminal homicide if she takes the life of
another human being purposely, knowingly, recklessly, or negligently.
 Murder
 In general, a homicide constitutes murder if the killing is committed: (a) purposely;
(b) knowingly; or (c) “recklessly under circumstances manifesting an extreme
indifference to the value of human life.” Unlike many modern statutes, the MPC
does not divide murder into degrees.
 Manslaughter
 Criminal homicide constitutes manslaughter in two circumstances.
 Recklessness
 A homicide committed recklessly constitutes manslaughter.
 The difference between reckless manslaughter and reckless murder is that
here the conduct, although reckless, does not manifest an extreme
indifference to human life.
 Extreme Mental or Emotional Disturbance
 The MPC recognizes a much broader version of the common law provocation
doctrine, and also allows states to recognize a “partial responsibility”
diminished capacity defense, if they wish to do so. The MPC provides that a
murder constitutes manslaughter if the actor kills under the influence of an
“extreme mental or emotional disturbance”, for which there is a reasonable
explanation or excuse.”
 Negligent Homicide
 A criminally negligent killing—involuntary manslaughter at common law—is the
lesser offense of “negligent homicide” under the MPC.
 Common Law versus MPC
 Types of murder
 The common law term “malice aforethought” is abandoned.
 Intent to Kill
 This form is recognized under the MPC: as noted above, a criminal
homicide is murder under the Code if the killing is committed
purposely or knowingly. In essence, this is equivalent to the common
law “intent to kill” form of mens rea.
 Intent to Commit Grievous Bodily Injury
 Virtually any case that would qualify as common law murder
according to this form of malice will fit under the MPC “extreme
recklessness” umbrella.
 Depraved Heart
  The MPC extreme recklessness provision is similar to the depraved
heart form of common law murder, except that it is explicit in
requiring proof of advertent risk-taking, and that the risk-taking be
“substantial and unjustifiable.”
 Felony-Murder
 The Code abandons the felony-murder rule. As a compromise, the
Code provides that reckless indifferent to human life may be
presumed if the person causes the death during commission of one of
the felonies enumerated in the Code.
 Felony Murder
 Felony + Death= Felony Murder
 No requirement to prove Mens Rea for the murder
 Cannot use felony-murder rule when it is based on felony which is an integral part of
the homicide.
 Transferred Intent
 Law allows you to transfer the intent of the act with the SAME social harm.
 Harm can switch from person to person
 Ex: you swing at one person and hit another.
 Buy you CANNOT transfer intent if there is a different social harm.
 Except in the case of felony murder—intent is allowed to be
transferred from harm to harm.
 Public Policy
 Limitations
 Capital Murder
 Public Policy
 Limitations
 Rape
 General
 Blackstone defined rape as “carnal knowledge of a woman forcibly and against her
will.”
 Today, it is more accurate to characterize this as forcible rape.
 Rape is a general-intent offense.
 Force Requirement Actus Reus
 The crime of forcible rape is not complete simply upon proof that the intercourse
was nonconsensual. It must also be shown that the male acted forcibly or by threat
of physical force. Non-consent and force are separate elements.
 The common law developed a resistance requirement. Essentially, the rule was: if
the male uses or threatens to use force likely to cause death or serious bodily injury
 to the female, she is not required to resist. If the male uses more moderate force,
the female is required to resist the rape to the upmost, or until exhausted or
overpowered.
 Mens Rea
 Rape is a general-intent offense. Therefore, most jurisdictions provide that a person
is not guilty of rape if, at the time of intercourse, he entertained a genuine and
reasonable belief that the female voluntarily consented.
 Minority Rules
 No mistake-of-fact “defense”
 A few states provide that even a defendant’s reasonable mistake of fact is
NOT a defense.
 Common Law Rape
 Elements
 Unlawful
 Unmarried
 Carnal Knowledge
 Penetration by a penis, only vaginal
 Woman
 Forcibly
 Against her will
 Most states have moved away from carnal knowledge and unmarried elements.
 Rape Shield Laws
 Laws that prevent the defendant from harassing and humiliating the victim with
evidence of either he reputation for chastity or specific prior sexual acts.
 This type of evidence generally has no bearing on whether the victim consented to
the sexual conduct with the defendant at time in question.
 Exclusion of evidence keeps the jury focused on the issue relevant to the case at
hand.
 MPC Rape
 If a person doesn’t have the mens rea than you cannot have a rape.
 If the code does not specify a mens rea, it is at LEAST RECKLESSNESS
 There is no consent requirement per se, instead MPC focuses on whether she was
compelled or not BUT!!
Consent can be put on as evidence to whether she was compelled or not. The case
however does not rise and fall on consent alone.
 Inchoate crimes
 Attempt
  Attempt occurs when a person, with the intent to commit a criminal offense,
engages in conduct that constitutes the beginning of the perpetration of, rather
than mere preparation for, the target (i.e., intended) offense.
 Specific Intent v. general Intent
 Attempt is a specific intent crime therefore even if the target crime is general
intent; the specific intent element is required.
 Example: Rape is a general intent crime but for attempted rape specific intent is
required.
 Mens Rea
 First Intent
 The actor must intentionally commit the act that constitutes the actus reus of
an attempt, e.g., he must intentionally perform an act that brings him in
generous proximity to commission of the target crime.
 Second Intent
 The actor must commit the actus reus of an attempt with the specific intent
to commit the target offense. This latter state of mind is almost always the
critical mens rea issue in attempt.
 Actus Reus
 Last Act Test
 There is a general agreement that an attempt occurs at least by the time of
the last act.
 Substantial Step test
 Dangerous Proximity Test
 This standard is not satisfied unless the conduct is so near to the result that
the danger of success is very great.
 Look at harm
 How close are you to completing the act
 Unless the harm is huge
 Physical Proximity Test
 To be guilty of attempt under this test, an act “must go so far that it would
result, or apparently result in the actual commission of the crime it was
designed to effect, if not extrinsically hindered or frustrated by extraneous
circumstances.
 Defenses
 Impossibility
 Factual
 Factual impossibility, which is not a defense, may be defined as occurring
when an actor’s intended end constitutes a crime, but he fails to
 complete the offense because of a factual circumstance unknown to him
or beyond his control. One way to phrase this is: if the facts had been as
the defendant believed them to be, would his conduct constitute a
crime? If yes, then this is a case of factual impossibility.
 Example: D, a pickpocket, puts his land in an empty pocket.—D is
guilty of attempted larceny.
 Legal
 Pure Legal Impossibility
 This applies when an actor engages in lawful conduct that she
incorrectly believes constitutes a crime. No guilt for this.
 Pure Legal Impossibility Exists if the criminal law does not prohibit
D’s conduct or the result she has sought to achieve. (D thinks it is
illegal but it isn’t) This is a defense because there is no crime to
begin with.
 Hybrid Legal ImpossibilityExists if D’s goal was illegal, but
commission of the offense was impossible due to a factual mistake by
her regarding the legal status of some factor relevant to her conduct.
(Courts or divided on whether to let these types of cases stand as
defenses)
 You have mens rea to commit a crime but you make a factual
mistake.
 Example: Attempting to bribe a juror
 MPC approach to attempt
 The MPC approach generally treats attempt as the same degree as the target
offense.
 MPC uses the substantial step method
 Substantial Step
 One has gone far enough to constitute an attempt if the “act or
omission constitutes a substantial step in the course of conduct
planned to culminate in his commission of the crime.”
 Thus, the person must be “corroborative of the actor’s criminal
purpose.”
 MPC approach to impossibility
 The MPC provides that a person is guilty of an attempt if his conduct would
constitute the crime if the attendant circumstances were as he believes them
to be.
 MPC approach to abandonment
  A person is not guilty of a criminal attempt if she abandons her effort to
commit the crime or prevents it from being committed; and her conduct
manifests a complete and voluntary renunciation of her criminal defense.
 Common Law approach to Abandonment

 Conspiracy
 Conspiracy is defined as a “partnership in criminal purpose”, it is a mutual
agreement or understanding, express or implied, between two or more persons to
commit a criminal act or to accomplish a legal act by unlawful means.
 The crime of conspiracy is completed upon the formation of an unlawful agreement.
 It is not necessary to establish an overt act in furtherance of the conspiracy as a
component of the crime.
 Mens Rea
 Must have intent to combine with others, and
 Must have intent to accomplish the illegal objective.
 Elements of Conspiracy
 Mutual agreement or understanding
 Agreement can be expressed or implied
 Between two or more persons
 To commit an unlawful act or to commit a legal act by illegal means
 Rules of Conspiracy
 Conspiracy is a crime that is separate and distinct from the substantive crime
that is its objective.
 The guilt or innocence of a conspirator does not merge with a conviction of the
completed offense.
 Thus, a defendant may be convicted and punished for BOTH the conspiracy and
the substantive crime.
 Conspiracy requires not only intent to agreement but also intent to commit all
the elements of target offense.
 Intent can be inferred from circumstances
 Actus Reus
 There has to be an agreement
 The agreement itself is the crime
 Pinkerton Liability
 Elements
 Substantive crime was committed by co-conspirator; and substantive crime
was:
 An object of the conspiracy; or
  If not an object of the conspiracy:
 Committed in furtherance of the conspiracy; and
 Reasonably foreseeable in light of scope of conspiracy.
 Ex: In conspiracy to deal drugs it is reasonable foreseeable that
someone might be murdered.
 MPC Approach—the MPC does NOT merge with underlying offense. Therefore, D
cannot be convicted of conspiracy to commit a crime AND the crime.
 There is not Pinkerton liability in MPC
 MPC v. Common Law
 Common law requires negligence (Pinkerton)
 MPC requires purpose (Actual Purpose)
 Common law Accomplice Liability
 A person is an accomplice in the commission of an offense if she intentionally assists
another person to engage in the conduct that constitutes the offense.
 Accessorial liability is not a distinct crime, but only a means by which a substantive
crime may be committed.
 Put differently, an accomplice (i.e., at common law, a principal in the second degree
or accessory before the fact) is not guilty of the crime of aiding and abetting, but
instead is guilty of the substantive offense committed by the perpetrator (the
principal in the first degree) because of the accomplice’s complicity in the crime.
 Mens Rea
 The first mens rea set out requires proof of intent—intent to perform the acts that
in fact constitute the assistance
 The second mens rea requirement, relating to the commission of the crime itself, it
that the individual possess the level of culpability required in the definition of the
offense in which she assisted.
 Ex: For a reckless crime—the prosecutor only need prove the D acted recklessly.
 Actus Reus
 In most, multi-party prosecutions, the actus reus component of accomplice liability
is clear cut  The secondary party solicited the offense, furnished an
instrumentality used in the commission of the crime, or provided other significant
active aid in perpetration of the offense.
 “Act of Assistance”
 The act can be minor and doesn’t have to have cause of the effect.
 Rules
 Doesn’t require an agreement
 Just giving a material assistance to the crime
 Ex: if you’re an accomplice in a robbery then you are only charged with robbery.
  It is not a separate crime.
 Accomplice v. Conspiracy
 If someone agrees to commit a crime but doesn’t help commit they are guilty of only
conspiracy.
 If someone helps commit a crime but there is no agreement they are guilty of only
accomplice.
 Principal in the First Degree
 He is the person who, with the requisite mens rea, personally commits the offense
(e.g., in murder, fires the gun that kills the victim; in rape, personally has sexual
intercourse with the nonconsenting female), or who uses an innocent human
instrumentality to commit it.
 Principal in the Second Degree
 She is the person who intentionally assists the principal in the first degree to commit
the offense, and who is actually or constructively present during the commission. A
person is constructively present if she is close enough to assist the principal in the
first degree during the crime.
 Accessory before the fact
 A person who aids or counsels without presence before the crime.
 No physical presence.
 Accessory after the fact
 Someone who helps a person after they commit a crime,
 Example Helping someone hide from police
 At Present Common Law
 Combines the first three (Principal in 1st, 2nd, and before the fact), making them all
principals. All three are treated the same.
 The last (Accessory after the fact) is a separate crime. (Usually obstruction of justice)
 Common Law
 If you commit the first act, then a defendant is liable for any natural and
foreseeable consequence that may arise.
 If you commit the first act as an accomplice, then you open yourself up to
natural and foreseeable consequence.
 This rule is the same as Pinkerton!
 MPC Accomplice Liability
 A person is guilty of an offense that she did not personally commit if she is an
accomplice of another person in the commission of the offense.
 Rules of MPC
 Pinkerton Rule is not recognized under the MPC
 Elements
 To be an accomplice in the commission of an offense, the person must:
 (a) solicit the offense;
 (b) aid, agree to aid, or attempt to aid in its commission; or
 (c) fail to make a proper effort to prevent commission of the offense (assuming
that she has a legal duty to act).
 Common law v. MPC
 MPC permits potentially greater liability than common law accomplice liability.
 Under MPC accomplice liability is permitted if an actor tries, but fails, to aid in
commission of the offense.
 Mens Rea
 To be an accomplice, the person must act with the purpose of promoting or
facilitating the commission of the offense.
 Exception
 The MPC handles the common law issue discussed above—liability for a
crime of recklessness or negligence—with the following provision: A person
who is an accomplice in the commission of conduct that causes a criminal
result, is also an accomplice in the result thereof, if she has the level
culpability regarding the result required in the definition of the offense.
 Abandonment
 A person is not an accomplice in the commission of a crime if she terminates her
participation before the crime is committed, and if she either neutralizes her
assistance, gives timely warning to the police of the impending offense, or in some
other manner prevents commission of the crime.
 Defenses
 Common Law Self-Defense
 A person is justified in using deadly force against another if:
 (a) he is not the aggressor; and
 (b) he reasonably believes that such force is necessary to repel the imminent use
of unlawful deadly force by the other person.
 Elements
 An actual or apparent threat of use of deadly force
 The threat must be unlawful and immediate
 The defender must believe he was in imminent peril of death or serious bodily
harm, and his response was necessary to save him.
 These beliefs must not only have been honestly entertained (good faith), but
also objectively reasonable in light of surrounding circumstances.
 Aggressor
 An aggressor may not use deadly force in self-defense. It is possible, however,
for an aggressor to purge himself of his status as an aggressor and regain the
right of self-defense.
 Definition
 An aggressor may be defined as a person who commits an unlawful act
reasonably calculated to produce an affray foreboding injurious or fatal
consequences.
 Proportionality
 A defenders response of self-defense must be proportional to the threat
facing the person.
 Losing the Aggressor Status
 Nondeadly Aggressors
 A, a nondeadly aggressor, may regain her right of self-defense against B,
if B responds to A’s nondeadly aggression by threatening to use excessive
—deadly—force in response.
 Unlawful Force/ Unlawful Threat
 A person has no right to defend herself against lawful—justified—force.
 She may only respond to unlawful threats of force.
 Rules
 You are obligated to retreat from danger if you have a reasonable means.
 Lets you include prior experiences, physical attributes or parties involved
 Whether a reasonable person would have reacted the same way under the
circumstances. (It is an objective person in the defendant’s shoes)
 If you make it purely subjective, any type of force can be justified—therefore
it may look at times subjective but in reality it is objective+ some elements of
subjectiveness.
 Example
 The self-defense must take place at or immediately before the killing.
 BUT—what the defendant knows can be from evidence from the past.
 Rumors that the victim was a in a mental institution—that he had
raped in the past.
 Castle Doctrine
 Your house is your castle; you can stand your ground there.
 You CANNOT use the Castle Doctrine if you are the aggressor.
 Certilage Enclosed land around your house
 Common Law approach
 Objective + circumstances (defendants prior experience and knowledge may
play a role)
  Idea that what would a reasonable person do if they had the same
experiences as defendant and knew what defendant knew at that time.
 MPC Self Defense
 A person is not justified in using deadly force against another unless she believes
that such force is immediately necessary to protect herself against the exercise of
unlawful deadly force, force likely to cause serious bodily harm, kidnapping, or
sexual intercourse compelled by force or threat, by the other person on the present
occasion.
 Rules
 There isn’t a reasonable standard, it is when the actor believes, therefore it is
purely SUBJECTIVE approach.
 Broader than imminence (common law)
 When the defendant thinks it is necessary
 Example A says he is going to go down stairs and get a knife and cut his wife B.
B grabs a gun and shoots him.  Under common law there is no imminence so
self-defense is not valid. Under MPC Shooting him MAY be immediately
necessary therefore self-defense MAY be allowed.
 Necessity
 Common law Necessity
 A person whose conduct would otherwise constitute a crime acts justifiably if
certain conditions.
 Lesser-Evils Analysis
 The actor must be faced with a choice of evils or hams, and he must choose
to commit the lesser of the evils.
 Ex: The harm D seeks to prevent by his conduct must be greater than the
harm he reasonably expects to cause by his conduct.
 Reasonable Belief
 In measuring the competing harms, the court or just must put itself in the
actor’s shoes at the time the choice had to be made: the harms to be
weighed and compared are those that a reasonable person, at that moment,
would expect to occur.
 Imminency of Harm
 The actor must be seeking to avoid imminent harm, i.e., harm that
appears likely to occur immediately. This rule is strictly enforced: if there
is sufficient time to seek a lawful avenue, the actor must take that lawful
route.
 Causal Element
  The actor must reasonable believe that his actions will abate the
threatened harm.
 Common law Rules
 Common law does not look at cumulative harm.
 Harm was equal you’re trading one death for another is not ok.
 This is different between self-defense because there is no unlawful act in
necessity but in self-defense there is. Because of guilty unlawful act we
allow trading of equal harms.
 Necessity is dealing with all innocent parties, so equal trading is not valid.
 sometimes you have a duty to die; necessity can NEVER be used as a
defense to murder.
 The harm you trading must be GREATER
 Common Law v. MPC
 Common law cannot raise necessity for civil disobedience or murder
 MPC allows a necessity defense against murder
 Choice of Evils
 Unlike common law, the harm does not have to be imminent
 Unlike common law limitation on allowing necessity defense for murder
MPC does allow necessity defense against murder you can trade equal
harms
 MPC Necessity
 “Choice of evils”
 A person is just justified in committing an act that otherwise would constitute an
offense if:
 (a) the actor believes that the conduct is necessary to avoid harm to himself
or another;
 (b) the harm that the actor seeks to avoid is greater than that sought to be
avoided by the law prohibiting his conduct; and
 (c) there does not plainly exists any legislative intent to exclude the
justification claimed by the actor.
 If the actor was reckless or negligent in bringing about the emergency,
the defense is unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be, is sufficient to prove
guilty.
 Rules of Necessity
 The necessity is available if a person acted in a reasonable belief that an
emergency existed and there were no alternative available even if that belief
was mistaken.
  The person’s actions should be weighed against the harm reasonably
foreseeable at the time, rather than the harm that actually occurs.
 What would a reasonable persons in the defendant’s shoes test. 
Defendant’s personal attachment may or may not matter. Objective PLUS
(subjectivity is what a person in the defendant’s shoes, knowing what the
defendant knows)
 Necessity is NEVER a defense for indirect civil disobedience; direct civil
disobedience is very difficult to claim necessity as a defense.
 Elements
 The act charged must have been done to prevent a significant evil
 There must have been no adequate alternative
 The harm caused must not have been disproportionate to the harm avoided
 Duress
 Common law duress
 A defendant will be acquitted of an offense other than murder on the basis of
duress if she proves that she committed the offense because
 (a) another person unlawfully threatened imminently to kill or grievously
injure her or another person unless she committed the crime; and
 (b) she is not at fault in exposing herself to the threat.
 Elements and Rules
 Common law duress is very narrow; the excuse only applies if the coercer
threatens to use deadly force.
 Imminency—the deadly force must be present, imminent, and impending.
 Reasonable belief—the defendant’s actions must be based on a reasonable
belief that the coercer is serious about the threat and has the capacity to
inflict the harm immediately.
 The common law duress defense DOES NOT apply to the offense of murder.
 MPC Duress
 The defendant must show that
 (a) he committed an offense because he was coerced to do so by another
person’s use, or threat to use, unlawful force against him or a third party;
and
 (b) a person of reasonable firmness would have committed the offense.
 Rules
 The defense of duress is lost if the coerced actor put himself in a situation “in
which it was probable that he would be subjected to duress.”
  Furthermore, if he was negligent in placing himself in the coercive situation,
the defense is unavailable if he is prosecuted for an offense for which
negligence is sufficient to prove guilt.
 Coerced Homicides under MPC
 Unlike the common law, the MPC does NOT bar the use of the duress
defense in murder prosecutions. It is left to the jury.
 Intoxication
 The criminal law of intoxication is not limited to ingestion of alcohol. Intoxication
may be defined as disturbance of an actor’s mental or physical capacities
resulting from the ingestion of any foreign substance, most notably alcohol or
drugs.
 Not an excuse defense
 A person is NEVER excused for his criminal conduct on the ground that he
became voluntarily intoxicated. Indeed, because intoxicants tend to reduce a
person’s ability to control his aggressive feelings or antisocial impulses,
intoxication serves as an anti-defense. The act of getting intoxicated
enhances, rather than mitigates, culpability.
 Mens Rea Defense
 Although voluntary intoxication is not an excuse for criminal conduct, more
jurisdictions following the common law provide that a person is not guilty of
a specific-intent offense if, as a result
 Common Law Intoxication

 MPC Intoxication
 The MPC does not distinguish between general intent and specific intent
offenses.
 On test!
 You must be able to tell difference between specific and general intent.
 It has implications for defense.
 2nd degree murder depraved heartunintentional crimeno purpose to kill but
this is a specific intent crime because it is murder PLUS “depraved heart.”
 Under common law, all types of murder are with malice aforethought—malice can be
expressed or implied from circumstances.
 2nd degree murder is a specific intent crime because it is looking at the implied malice.
 Intoxication Continued
 This is limited to a defense application.
 Intoxication never plays a role in how you assess the reasonable person.
  For a crime to occur it has to be a result of a voluntary act—if you are drunk you
cannot say it was involuntary.
 Exception—if you are so drunk that you are passed out.
 Intoxication is a defense you use against a crime.
 Insanity
 Insanity affects a whole range of things.
 Why defendants mental health may be relevant
 Competency to stand trial
 A criminal trial may not proceed if the defendant is incompetent to stand
trial.
 An individual can be incompetent for a variety of reasons, including that she
is severely mentally ill or disabled, suffers from amnesia, or is unable to
communicate with her attorney due to a physical handicap, such as an
inability to speak.
 Insanity at time of offense
 Eligibility and selection for death penalty
 New sexual predator laws post-sentence
 Usually found not legally insane—even after they serve out their sentence
they usually have limitations on them.
 Court may
 Decide you are not guilty because of insanity
 M’Naghten rule (test)
 The test’s emphasis upon knowledge of right and wrong abstracts a single
element of personality as the sole symptom or manifestation of mental illness.
 M’Naghten refuses to recognize volitional or emotional impairments, viewing
the cognitive element as the singular cause of conduct.
 Elements
 You don’t know your action is wrong (Not realizing you’re squeezing
someone’s neck.)
 You don’t know you’re doing what you’re doing. (Squeezing someone’s neck
thinking it is a lemon.)
 The “Irresistible Impulse” or “Control” Test
 You are compelled to do what you are doing even though a part of you may
realize what you are doing is wrong.
 Idea that you are totally incapacitated by an impulse.
 The “Product” test
 Was designed to facilitate full and complete expert testimony and to permit the
jury to consider all relevant information.
  Whether your act was produced by your mental illness.
 Leaves very little discretion for a jury to make their own evaluation.

 Insanity
 Insanity is an affirmative defense
 Different between medically insane and legally insane.
 MPC Insanity
 The model penal code standard relieves the defendant of responsibility under two
circumstances: (1) when, as a result of mental disease or defect, the defendant
lacked substantial capacity to appreciate the criminality [wrongfulness] of his
conduct; (2) when, as a result of mental disease or defect, the defendant lacked
substantial capacity to conform his conduct to the requirement of law.
 You do not have to lack total capacity but ONLY substantial capacity.
 MPC v. M’Naghten test (common law)
 Substantial capacity v. total incapacity
 The use of “appreciate” (MPC) rather than “know” (Common law) conveys a broader
sense of understanding than simple cognition.
 M’Naghten test doesn’t allow for a behavioral element, it is all about knowledge.
 MPC does both, appreciate element or lacking ability to control your impulses.
 State v. Wilson
 If D substantial misperceives reality
 If society had seen things as how he saw things would they have agreed?
 If society had believed the same things he did, would his acts still been criminal?
 Deific decrees
 When god tell you what you are doing is right.
 When god tells you what to do.
 There is a difference from doing something for a religious belief and doing something
because god tells you to.