Criminal Law Outline

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I.

GUIDING PRINCIPLES
- no cases II. MENS REA
Regina v. Cunningham*
gas meter asphyxiation
Holding
1. malice is required for conviction, which entails intent, knowledge, or recklessness as to the
prohibited conduct
For
2. criminal law separates the mental state of the defendant (mens rea) from his actual act
(actus reus) in assessing whether the defendant had a culpable state of mind
Regina v. Faulkner*
run thief burns ship
Holding
1. prosecution must prove mens rea for each individual crime, except for the felony-murder rule
i. defendant is not automatically culpable for collateral acts, except murder, when
committing a felony
For
2. would turn the other crimes into strict liability offenses
State* v. Hazelwood
Exxon Valdez captain
Holding
1. a person is negligent when they fail to perceive an unjustifiable risk that the result will occur,
and failure to perceive it constitutes a gross deviation from the standard of care of a
reasonable person
Santillanes* v. New Mexico
cuts nephew during altercation
1. crimes involving moral condemnation require criminal mens rea (at least criminal
negligence)
Francis v. Franklin (shots fired through door)
2. a person does not intent all the natural and probable consequences of his actions

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III. MISTAKE
1. Ignorance/Mistake of Fact
Regina* v. Prince (UK) (overruled)
∆ abducts 14yo girl reasonably believing she was 18
Holding
1. if the crime contains no requirement of knowledge of a fact, there is no mistake of fact
defense (overruled in B [a minor])
2. moral wrong principle; lesser crime principle
MPC
1. rejects Prince, §2.04(1)(a) establishes that a mistake of fact can be a defense even if the
requisite mens rea for the material elements of the crime are recklessness or negligence
2. outcome would be different under MPC because an honest and reasonable mistake is
allowed for children between 10-18 for statutory rape
People* v. Olsen
statutory rape, guys breaking into her trailer, belief that victim was 16
Holding
1. mistake of age is not a viable defense when the victim is under 14
For
2. public policy to protect children of tender years
Against
3. strict liability is disfavored: criminal punishment is harsh if the person has done everything
they could have done, and is also unjustified under traditional utilitarian (no deterrence) and
retributive (not morally blameworthy) theories of punishment
MPC
4. §213.1 would allow honest and reasonable mistake under 14, but not under 10
B (a minor)* v. Director of Public Prosecutions (UK)
15 yo boy repeatedly solicits sex from 13yo, honest belief she was 14
Holding
1. an honest mistake of fact is a defense (over-rules prince), and whether belief was
reasonable is not relevant to mens rea, though it may indicate whether defendant actually
held the belief

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For
1. consistent with MPC
- Garnett v. State*
20yo mildly retarded statutory rapes 13 year old, belief she was 16
Holding
1. one off case - strict liability (no mistake of fact defense) to protect young people
- Commonwealth* v. Simcock
Holding
1. minority view of strict liability for sexual consent
i. majority view is that an honest reasonable mistake as to consent is a defense to rape
2. in a statutory rape case, a reasonable mistake as to the victim's age is not a defense
3. other crimes (ex. larceny) allow reasonable honest mistake as a defense State v. Kelly*
(contractor takes estranged wife's fireplace mantles)
State* v. Benningfield
drugs within 300 ft of school
Holding
1. only had to prove ∆ knew he possessed the drugs, not that he knew he was near a school
i. strict liability as to the attendant circumstances lesser crime principle

2. Ignorance/Mistake of Law
People* v. Marrero
corrections officer walks with gun into bar mistakenly thinking he is exempt by statute exempting
"peace officers"
Holding
1. an honest reasonable mistake or ignorance of the law is not a defense
For
1. allowing ignorance of the law would be too difficult to disprove
2. Marrero was looking for a loophole rather than making a good faith mistake in an ambiguous
law
Against
1. the statute had never been interpreted before, and a plain text
i. there is a strong lenity argument: the lower court and half the appeals court took the
same reading as Marrero
2. criminal law is predicated on punishing only those who choose to do wrong
3. punishment on a good faith mistake serves no deterrence function (neither utilitarian or
retributive)
i. requiring good faith reasonable mistake encourages the public to learn the law

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ii. JJ: no utility in punishing, so court should have let him off and made a prospectively
applicable ruling saying from then on peace officer does not apply to federal officers
MPC
1. result would be the same under the MPC ignorance or mistake of law is only a defense
when it negates the mens rea required for a a material element of the offense, and the
existence, meaning, and application of the law are not material elements
i. thus defendant's mistake does not negate the mens rea for any material element
2. the result would be different with a legality argument, since half the appellate judges and the
lower court interpreted "peace officer" the same way as ∆
Regina v. Smith* (man installs then damages floorboards in apartment)
1. mistake of law as to a secondary matter ("legal fact" i.e. ownership) may be exculpating
State v. Varszeig* (landlords steals then sells computers thinking he has a claim to them)
1. for specific intent crimes, mistake of the law that negates mens rea is exculpating
- Regina v. Smith*
man installs then damages floorboards in apartment, thinking he had ownership
Holding
1. mistake of law as to a secondary matter ("legal fact" i.e. ownership) may be exculpating
- State v. Varszeig*
landlords steals then sells computers thinking he has a claim to them
Holding
1. ignorance of the law is exculpating for specific intent crimes when it entails defendant did not
have intent to cause the result
Cheek* v. United States
• statute makes it an offense to willfully attempt to avoid payment of taxes
• ∆ had honest belief (tax code is confusing) he was not required to pay income tax

Holding
1. any honest mistake of law negates willfulness, regardless of reasonableness
i. ∆'s honest mistake about having to pay taxes means he did not willfully evade taxes
For
1. court is saying knowledge of the law is required for willfulness
Against - ways to distinguish
1. limited - courts may be especially willing to allow mistake in tax law because it is so
complicated
i. is essentially a mistake as to a secondary civil matter
MPC

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1. he had awareness of a high probability (willfulness) that he was not paying his taxes, so
∆ would not be exonerated under the MPC
i. MPC does not interpret mens rea as requiring knowledge of the existence, meaning,
application of the law unless the statute provides
2. argument: the word "willfulness" implies knowledge of the statute is required, so the statute
triggers the exception under 2.02(9), which says that makes knowledge of the statute's
existence is not a material element of the offense "unless the definition of the offense or the
Code so provides"
i. in this statute willfulness could mean (1) he knew he was not pay his taxes or (2) he
knew he was not pay his taxes and that it was in violation of the law
ii. lenity, but even if (2), ∆ likely knew not paying his taxes was in violation of the law (he
suddenly stopped paying taxes, but it's a jury question)
Does willfulness require knowledge of the existence of the law?
- International Minerals (ignorance not okay)
crime to knowingly violating a corrosive liquid transport regulation
Holding
1. only requires that defendant knowingly took the action
- Liparota (ignorance okay)
knowingly using food stamps in an unauthorized manner is illegal
Holding
1. defendant must know of the existence and meaning of the relevant regulation
For
1. danger of criminalizing a broad range of apparently innocent conduct (i.e. defendant going to
the wrong store)
Against
1. slippery slope argument is bad in this case, because no prosecutor is going to charge a
welfare recipient - we can rely on prosecutorial discretion in this case
2. wrongly decided- his act was obviously wrong and not a mala prohibita, and applying
overholt (Congress intent) or lambert (mala prohibita) would not exculpate him
- Ansaldi (ignorance not okay)
knowingly distributing a controlled substance is illegal, ∆ argues he didn't know the substance
was controlled
Holding
1. only requires defendant knowingly sold drug, not that he knew it was a controlled substance
For
1. knowledge of the law is not an element of this offense
- Overholt (ignorance not okay)

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a knowing violation of safe water act is criminal
Holding
1. only requires defendant knowing did the action
For
1. when addressing the regulation of harmful chemicals, SCOTUS has been resistant to
requiring proof of knowledge of the law
i. requires awareness that the act violated the specific statute, i.e. knowledge that the
regulation existed Liparota
ii. when there is general awareness that the conduct is proscribed, does not require
knowledge that the regulation existed Ansaldi
Lambert* v. California
statute requires criminals to register within 5 days of being in LA
Holding
1. when "the circumstances which might move one to inquire" as to whether there is a legal
duty are lacking, ignorance of the duty can be a defense
For
1. chance of recidivism is low, punishment is relatively severe
2. not a mere regulatory scheme, and high opprobrium
3. thus, strict liability is disfavored
MPC
1. would come out differently under 2.04(3)(a) as long as the statute was published or
otherwise reasonably made available
i. best argument would be this law inherently a lacks of notice when because it deals with
an omission for foreigners; due process violation unrealistic assumption that they are
reasonably put on notice of the law

Reliance on Officials
- State v. Leavitt
Holding
1. misleading statement from sentencing judge can led to reversal even though knowledge of
illegality is not an element of the statute
- United States v. Wilson
Holding
1. statute had no knowledge requirements so judge's misstatement was not exculpatory
i. opposite of Leavitt
Against
1. unreasonable to expect ∆ to know of violation

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IV. STRICT LIABILITY
US* v. Balint
statute has no mens rea requirement, indictment failed to charge that ∆s knew they were selling
illegal drugs
Holding
1. defendant is strictly liable for the sale of the illegal drugs
For
1. conviction based on text: text did not require knowledge that they were selling illegal drugs,
so Congress intended strict liability, and Congressional intent trumps
Against
1. strict liability is strongly disfavored
2. mens rea would be read in today under the MPC, and even under common law for mens rea
for mala in se crimes
1. MPC 2.02(3) would read in mens rea requirement of at least recklessness, but would the
result be different?
2. Jacobs: would be decided differently today - how? i agree that MPC would read in mens rea
requirements, but ∆ would still be guilty no? they were intentionally selling the drug
i. even under MPC ∆ wouldn't need knowledge that the drug was illegal, merely that he
was selling the drug
ii. under MPC, ∆ does not need knowledge of the existence or application of the statute
unless the statute expressly requires, and Ansaldi says drug statutes don't require that
kind of knowledge for guilt (knowledge that the statute exists)
US* v. Dotterweich
pharmaceutical director selling mislabeled drugs in error, statute required no mens rea
Holding
1. public welfare offense: great public danger warrants strict liability
For
1. give effect to the regulatory system
Against/MPC
1. strict liability is strongly disfavored
2. strict liability (esp. for corporations) doesn't make already rational actors behave with more
care, it just shifts costs
MPC
1. mens rea would be read in today under MPC 2.02(3); MPC would not allow strict liability
when there is prison time

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Morissette* v. United States
man mistakenly thinks air force scraps are abandoned and sells them, conversion of
government property; crime to knowingly convert government property
Holding
1. no statutory strict liability of mala in se crimes is permissible; they require mens rea
2. can impose strict liability for public welfare offenses
i. defined as: impacts a lot of people, minor penalty (no prison), limited opprobrium
For
1. reasoning is that mala in se crimes are common law crimes which all required mens rea
2. mala prohibita crimes carry light penalties, so strict liability might be more permissible
Against
1. prosecution could have established knowledge - military marking on area and no trespass
signs indicated he knew he was doing something
2. some non-common law crimes (statutory rape) are very serious
MPC
3. no strict liability unless expressly provided by statute
Staples* v. United States
man did not know gun was automatic, statute prohibits automatic guns
Holding
1. strict liability is only permissible when there is a clear statement from Congress that mens
rea is not required
2. absent such a statement, public welfare offenses are not necessarily strict liability offenses
For
1. strict liability is disfavored, and there should be some indication of Congressional intent to
dispense with mens rea (public welfare) cases are when defendant violates a statute
regulating
2. court: distinguishes Freed because grenades are inherently dangerous and guns are not
Against
1. previous interpretations of the same statute in Freed applied strict liability
i. strict liability is also used in other contexts
ii. requiring knowledge would be too difficult for the prosecution
2. an assault rifle is a weapon semi-automatic weapon that is only different because it has
scary cosmetic features that we do not like (bayonet mount, scope, flash suppressor), so is
that a public welfare offense to own?
- US v. X-Citement Video*
transporting films didn't know were child porn
Holding
1. knowingly has to apply to every material element, otherwise absurd results would result

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- State v. Baker
speeding because cruise control malfunctioned
Holding
1. strict liability only applies to defendant's voluntary acts, but CC malfunctioning is a voluntary
act, because control is delegated voluntarily to the CC by the driver
State v. Guminga
tavern owner arrested for his waitress serving alcohol to minor
Holding (minority holding)
1. it is an unconstitutional violation of due process to hold a person may not be vicariously
liable for the acts of his employees if he did not ratify those acts (i.e. selling alcohol to
minors)
i. majority of courts accept vicarious liability (holding one party strictly liable for the acts of
another)
For
1. vicarious liability should be disfavored strict liability because there can be liability even if
defendant did everything in his power to prevent the offense
2. there is a lack of mens rea and actus reus
3. the staff will be adequately incentivized if they are held liable for their own actions
- City of Maple Heights v. Ephraim*
Holding
1. statute holding parents liable for the crimes of their minors is illegal, since it does not require
an act by the parent- lacking actus reus (either act or omission)

V. LEGALITY
Commonwealth* v. Mochan (overruled)
man makes obscene phone calls, conduct alleged not prohibited by statute
Holding
1. a person may be prosecuted for committing a common law crime even if such crime has not
been specifically enacted into legislation
For
1. like statutes, common law gives fair warning and controls arbitrary enforcement
2. the common law is sufficiently broad, in this case, to punish any act which directly injures the
public
Against
1. nearly all jurisdictions (except Rhode Island) have now abolished common-law offenses
i. common laws are not reasonably available to the public
2. MPC §1.05 would require there to be an statute under which the offense can be charged

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McBoyle* v. United States
man steals airplane, charged with theft of a vehicle under the National Motor Vehicle Theft Act
Holding
1. fair warning requires not attributing a meaning to a statute that drastically departs from how
it is likely to be understood by the persons it affects
For
1. vehicle cannot mean airplane, does not give fair warning for airplane theft to say can't steal
vehicles
Against
1. in this case lesser crime doctrine: charged for transporting and original crime was theft;
notice was provided by notice for the theft
United States v. Dauray*
possessed multiple individual pictures of child porn, statute requires three or more "books,
magazines, tapes, or other matter"
Holding
1. fair warnings requires that unresolvable ambiguities be decided in favor of the defendant
Keeler* v. Superior Court
man kicks pregnant woman killing fetus, charged with murder; is fetus human?
Holding
2. it is assumed that when legislature borrows a common law term, it borrows the cluster of
ideas associated with that term, and the common law meaning should be used
• ex. using "due care" in criminal context implies congress wanted more than mere ordinary
negligence, but criminal negligence or recklessness
3. ex post facto prohibition: redefining the term "human being" to include fetuses then applying
it retroactively to the previous conduct to make it criminal is a due process violation and thus
unconstitutional
For
1. legislature borrowed common law terms for murder, and murder is defined as the killing of
human beings that have been born alive
2. only legislature has the power to define crimes, and they have defined human being to only
include human beings born alive
3. would be ex post facto law to expand the meaning to include fetuses when it didn't
previously
Against
1. judges should use modern meaning, instead of taking meanings as enacting legislature
understood the word, otherwise words like "weapon" would only refer to swords and not
guns for old laws

• common law does not consider fetus a human being

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- do we take the meaning when legislature enacted the statute, or as we understand it now?
some judges take the view that the meanings of statutes evolve;
Rogers v. Tennessee*
changing murder rule (eliminating requirement victim had to die within a year) and applying it
retroactively not violation of due process
Holding
1. interpretation must be unforeseeable and indefensible to violate due process (ex post facto
prohibition applies for unforeseeable interpretations), otherwise the ex post facto clause
does not apply to courts
For
1. courts "find" the meaning that was and always had been there, only to legislature since they
give meaning
2. otherwise courts need the leeway to refine criminal defenses as necessary to bring the law
into conformity with common sense
People* v. Garcia (void for vagueness)
defendant throws fishtank at TV, crushes goldfish with shoe
Holding
1. a statute must give fair warning:
i. offense must be defined with sufficient clarity that a person of ordinary intelligence can
understand what conduct is prohibited
ii. statute must be written in a manner precluding arbitrary discriminatory enforcement by
the police
For
1. the statute is constitutional as applied because companion animal can be read to include
fish
VI. CAUSATION
People* v. Acosta
police helicopters crash while in high speed chase of Acosta
1. court finds proximate cause, but finds defendant lacked intent to kill required for murder
Holding
1. defendant is liable for all foreseeable consequences of his conduct, meaning any possible
consequence (the collision) that might have been contemplated
i. foresight must exclude extremely remarkable and unusual results
ii. the event (helicopter crash) was foreseeable because it was a possible consequence
which might reasonably have been contemplated
2. there was proximate cause, but he lacked malice because a jury cannot find a conscious
disregard of a risk which is barely cognizable
For

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1. in fact no helicopter crashes have happened before relies more on the flying skill than the
innate probabilities involved
MPC
1. there would be no cause under MPC 2.03
i. ambiguity as to whether "actual result" contemplated 2.03(2)(a) would refer to the
helicopter crash or the deaths
a. if actual result refers to the helicopter crash, then exonerated because it was not
contemplated
b. if actual result refers to the deaths, defendant would still be exonerated under 2.03(2)
(b), which requires the result (death) to not have come about in an unpredictable
manner
People* v. Arzon
two fires in apartment, one started by ∆ and one of unknown origin, combine to kill firefighter
Holding
1. there is causation if ∆'s conduct was a sufficiently direct cause of the harm (not an obscure
connection to it) and the ultimate harm was reasonably foreseeable
2. the ultimate harm does not need to be intended
3. the defendant does not have to be the sole cause of the ultimate harm
Application
4. the fire was a reasonably direct cause of the firefighter's death, it was not an obscure or
merely probable connection
5. the firefighter's death was reasonably foreseeable because the victim in a vulnerable
position risking where his death was risked
MPC
6. liable under 2.03(2) because the harm of killing a firefighter was well within defendant's
contemplation, and while the death did occur in an unexpected manner, the final harm was
the same and the chances were not so remote that punishment would be unjust, since he
risked a high probability of the firefighter's death in the blaze anyways
- People* v. Kibbe
man left to die in freezing cold gets hit by truck
Holding
1. the defendant is guilty if his conduct was a sufficiently direct cause of the harm and the
ultimate harm was foreseeable
Application
2. defendant leaving the victim stranded was a sufficiently direct cause of his death
- People v. Stewart*
defendant stabs man, survives stabbing surgery but dies of unrelated hernia operation following
Holding

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1. defendant's conduct must be a reasonably direct cause, not an obscure or merely probable
cause, of the harm
2. must be a but for cause; if the sole cause of the harm was from a factor that is not
attributable to the defendant, then he is exonerated

- People* v. Stamp
man suffering from heart disease dies of heart attack during robbery
Holding
1. the defendant takes the victim as he finds him
2. if the victim had an unforeseeable but pre-existing condition (ex. drug abuse, heart
condition), the defendant is liable for the unforeseeable (but predictable) result
People v. Warner-Lambert Co.*
chemicals in factory create explosion risk, explosion occurs
Holding
1. specific causal mechanism - the nature of the chain of particular events leading to the
harm must be considered
• some courts limit it to a commercial or manufacturing context
For
2. actions must be a sufficiently direct cause of the ensuing death before criminal liability,
higher than tort standard
Against
3. JJ: the company was a sufficiently direct cause and the explosion was a reasonably
foreseeable result, so there should be liability and no causation problem

1. Medical Malpractice
- Regina* v. Cheshire
Holding
1. medical malpractice is not exculpating if the original wound is still an operating and is a
substantial cause at the time of death
2. malpractice is exculpating for the original assailant if the original wound did not cause the
death, which is only if it can be said that the original wound is merely the setting in which
another cause operates
- State* v. Shabazz
man stabs victim 11 times, victim dies of massive internal bleeding in hospital, some evidence
that surgery was improperly done
Holding
1. medical malpractice or negligent rescue is not a defense for the original assailant if the
original would would have caused death anyways in the absence of medical treatment
i. the gross negligence must be the sole cause of death

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- United States v. Main*
defendant flips car in high speed chase with police, his passenger dies because officer doesn't
call ambulance in time
Holding
1. subsequent treatment errors are exculpating only when they are not foreseeable
2. the victim dying as a result of the inability to get prompt medical treatment is foreseeable
2. Third Party Intervention
People v. Campbell*
∆ gives drunk suicidal man a loaded gun, urges him to kill himself
Holding
1. hope is not the degree of intention requisite of a murder charge
2. mere mental persuasion of an adult exercising free will (even if intoxicated) does not
constitute cause
People v. Kevorkian*
∆ provides instruments to people and shows them how to use it to kill themselves
Holding
1. a defendant may be convicted of murder if he participates in the final overt act that results in
death
2. assisted suicide is not murder, and are criminalized separately
• assisting in the commission of a suicide does not sustain a murder charge
•

participating in the death-causing act is murder, not assisted suicide
3. one who successfully urges or assists another to commit suicide is not guilty of murder, so
long as the deceased was mentally responsible and not forced or deceived
State* v. McFadden
drag racer (no contact w anyone) held liable for death of other racer and bystander other racer
hit
Holding
1. the acts and omissions of two or more persons acting in concert make each participating act
or omission is a proximate cause of the injury
2.
3. vicarious liability for death of bystander
• aiding and abetting and joint criminal conduct are theories of vicarious liability
•

others' guilt does not absolve defendant of his own
4. the tort concept of proximate cause is applicable in criminal cases
i. rejects higher "direct causal connection" standard for criminal law
- argue that criminal law requires a direct causal connection

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if not, show that there was no proximate cause even in tort

Commonwealth v. Atencio*
playing russian roulette
Holding
1. direct causation may be established by wanton and reckless conduct found in a joint
enterprise
i. they had no duty to prevent deceased from playing, but had a duty not the participate in
the reckless conduct that could lead to the death of one of the participants
2. concerted acts and cooperation in helping to bring about the victim's death is tantamount to
manslaughter
Against
1. JJ: were they really acting concurrently, or is Russian roulette more appropriately thought of
as distinct individual games for each player; weaker case than drag racing

VII. OMISSIONS
Jones* v. United States
baby placed with family friend dies of neglect, contested whether she agreed to take care of
child
Holding
1. if there is a legal duty imposed by law or contract, omission of the duty can result in criminal
liability
2. question of whether defendant had a duty is a question for the jury BRD, and that she was
Pope* v. State
∆ allows church-woman to stay with her, churchwoman starts beating baby to death
Holding
1. ∆ had no duty to the child, especially because the mother was present
For
1. merely permitting someone to stay in your house as a guest does not entail you are taking
responsibility for them
i. general acts of kindness should not be interpreted as voluntary assumption of care for
another (unless the act is providing care for the injured person)
ii. homeowners have duties to guests, but only to a certain extent (i.e. to warn of risks and
not injure)
2. JJ: question of cause in fact: baby may have died even if she had intervened or made a 9-11 call

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- Beardsley
man's mistress ODs in her house, he does not call physician to help her
Holding
1. the man does not owe a duty of care to his mistress the way a man would to his wife
- Miranda
live-in boyfriend watches girlfriend beat up and kill her son
Holding
1. duty of care should only be to legal relationships
For
1. would otherwise discourage non-immediate family from taking an interest in and assisting
these vulnerable children (since they would be creating a duty for themselves by getting
involved)
2. allowing case-by-case adjudication of duty will put too much power in the hands of the state
who can use it as a bargaining chip in plea negotiations
- People v. Carroll
Miranda counter-case:
Holding
1. functional equivalent of a familial relationship is sufficient for duty of care Carroll
i. slight expansion limited to parents and spouses
- Commonwealth v. Cardwell
Parent is a Victim
Holding
1. parent is still held liable
For
2. the affirmative performance requires taking all reasonably calculated steps to achieve
success (doing anything possible, including running away)
i. in line with notion that parents have to take greater risks to carry out their legal duty (i.e.
than strangers), and that impossible means impossible
- State v. Martinez
Against
1. bootstrapping: using a misdemeanor (ex. good samaritan statute) to impose duty, creating
homicide liability
Barber v. Superior Court (distinguishing omission from act)
physician charged with murder for taking vegetative but not brain-dead patient off life support at
family's request (failure to continue treatment)
1. a physician has no duty to continue treatment once treatment has proven ineffective

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2. doctor is under no legal duty to keep the patient alive artificially unless requested by family
i. duty only exists when the benefits of care outweigh the burdens, which is whenever
there is a reasonable chance of recovery
3. in this case, no reasonable chance of recovery despite extraordinary measures being taken,
thus no duty
Airedale NHS Trust v. Bland
1. treatment can be withheld from patient being kept alive artificially with no chance of recovery
2. not lawful for doctor to actively bring a patient's life to an end (ex. lethal injection)
3. lawful for doctor to not provide treatment that would continue to prolong life
i. doctor's choice to not continue life support is an omission (of medical care), consistent
with his duty of care
ii. vs. act of interloper who maliciously switches off life support machine, constitutes act of
interference with doctor's care for another
Cruzan
• individuals have a constitutional right to refuse medical treatment

VIII.
ATTEMPTS
Smallwood* v. State (attempted murder)
whether defendant had intent to murder his rape victims when he knew he was HIV positive and
did not use condoms in his attacks
Holding
1. intent to kill can be inferred from circumstantial evidence if the victim's death is a natural and
probable result of the defendant's actions
i. a person intends the natural and probable consequences of their actions, unless
evidence of subjective intent shows otherwise
a. subjective intent trumps, but there is an evidence problem so we use circumstantial
evidence
2. no evidence that death by AIDS is a probable result of the action
i. sex does not always transmit the virus, and many people survive with AIDS
For
1. may have been a lack of cause in this rape, since it would not necessarily have caused
death
i. would be reckless murder if the victim has died
MPC
1. not guilty, MPC §5.01(1) would also require purpose as to the result, and court has found the
death was to improbable a result to be his purpose
People v. Rizzo* (dangerous proximity) §5.01(1)(c)

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arrested while driving around trying to find payroll messenger to rob
Holding
1. physical proximity test: there is the requisite actus reus for an attempt only when the
defendant is so physically close in time and space to the contemplated victim or scene of the
crime that completion of the offense is very likely but for timely interference
2. Rizzo's actions never brought him close enough to the victim he intended to rob
For
1. gives defendant a chance to abandon his plan
Against
1. too dangerous for some crimes (ex. bombing)
2. does not stop some individuals who have clearly manifested their willingness to commit
crime
MPC
1. rejected by MPC, a substantial step does not have to be close in time or place to the victim
or scene of the crime
2. guilty under 5.01(1)(c)
i. purposeful act of searching for the victim constitutes a substantial step under 5.01(2)(a)
ii. the substantial step was in a course of conduct planned to culminate in the crime
(robbery) if the attendant circumstances were as defendant believed them to be (payroll
guy has bank's money)
McQuirter v. State
man stalks woman but without actually doing anything to her
Holding
1. there can be an attempted assault, which is an act that intended to constitute an attempted
battery
i. the the jury must determine that defendant actually intended to commit the assault (and
thus intended to commit the battery), and a substantial step in furtherance of the assault
Against
2. dangerously close to punishing just thoughts - rule permits criminal liability for manifesting
intent in one's actions, border-lining criminalizing thoughts
MPC
1. theoretically possible under the MPC, if it can be shown that defendant has the intent to
commit a battery, and that he took a substantial step
2. MPC punishes inchoate offenses
Inchoate Offenses: Substantive Crimes of Preparation
California Harassment Statute:
Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses
another person and who makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her immediate family

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Requirements
1. "harass" is defined as a knowing and willful course of conduct directed at a specific person
that seriously alarms, annoys, torments, or terrorizes that person, and which serves no
legitimate purpose. This course of conduct must be such as would cause a reasonable
person to suffer substantial emotional distress, and must actually cause substantial
emotional distress to the person
i. repeatedly telling landlord to fix is not harassment- legitimate purpose
2. "credible threat" is a verbal or written threat, or a threat implied by a pattern of conduct,
made with the intent to place the person that is the target of the threat reasonable fear for his
or her safety and made with the apparent ability to carry out the threat. it is not necessary to
prove that the defendant had the intent to actually carry out the threat
3. summary: harassment + threat + intent to cause fear
Requirements
1. follow or harass:
i. willful, malicious and repeat following, or
ii. willful conduct, no legitimate purpose, actually causes distress, distress is reasonable
2. credible threat: written, verbal or implied conduct, intent to cause fear, apparent ability to
carry out threat
3. intent to create fear for own or family's safety
Criticisms
4. difficulty of drafting a law that criminalizes the targeted misconduct withhout sweeping in
constitutionally protected activity, like speech, and without being excessively vague
i. usually require intending to place the victim in reasonable fear (regardless of whether
victim actually felt fear)
5. constitutionality: not overly vague when the statutes define the conduct element of
harassment (ex. conduct that annoys) by an objective standard (ex. would distress a
reasonable person); statutes that make liability depend on the sensibilities of the particular
victim are unconstitutional
6. may be too narrow to deal with some forms of stalking because of harassment and credible
threat requirements
i. cyber-stalking - using the internet to harass: many states expressly include it as stalking,
but otherwise repeated sexual proposals may not involve implied or express threats
ii. man deluges woman with obscenities and demands for attention
iii. stalking apps - tracking software using GPS: not a crime under existing anti-stalking
statutes (since the apps are clandestine, stalker lacks the awareness to be harassed or
threatened)
iv. man gives woman gift, asks her for dates, repeatedly follows her after she tells him to
stop. stalking?
New York Harassment Statute

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does not require credible threat, extends to any course of conduct that causes material harm to
the victims mental or emotional health after defendant has been clearly told to stop
- also see MPC §250.4 (no credible threat requirement)
Anti-Paparazzi Law
1. attempts are primarily concerned with (i) preventing preliminary conduct from escalating into
more serious violence and (ii) finding culpability in acts that indicate a state of mind
2. designed to stop dangerous chases only criminalizes certain state of mind (i.e. chasing to
obtain photo)
Criticisms
3. picks out state of mind of paparazzi alone for censure and punishment
4. raises first amendment concerns
Bullying Law
1. causation issues - does the bullying cause the suicide
i. may be attempted assault - line between preparation and attempt
Massachusetts
1. criminal law: harassment is punishable by imprisonment up to 2.5 years and is committed
when someone willfully and maliciously engages in a knowing patter of conduct which
seriously alarms a specific person and would cause a reasonable person to suffer
substantial emotional distress
a. expands prohibitions against bullying, more severe penalties than usual
2. civil law: bullying is written, verbal, or electronic expression that causes physical or emotional
harm to the victim, or creates a hostile environment at school for the victim
MPC 250.4
the offense of harassment (petty misdemeanor) is limited to taunts likely to provoke a violent or
disorderly response, repeated communications in an offensively coarse language or alarming
conduct serving no legitimate purpose of the actor

Defenses to Attempt
People v. Jaffe* (mistaken belief) §5.01(1)(a)
man buys goods he believes are stolen but are not; charged with attempting to buying goods he
knew to be stolen

• couldn't be charged with the substantive crime because the attendant circumstances did not
exist as to whether there was a stolen good
Holding

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1. factual impossibility is not a defense, legal impossibility is a defense
For
2. this case is a legal impossibility because the fact that the goods were actually stolen is an
essential element of the offense (since knowing requires a true belief)
Against
3. court argues that "defendant lacked the necessary intent to receive stolen goods" since the
goods were not actually stolen, but this argument that defendant only intends to do the act
he is actually doing (ex. shooting a mannequin) does not square with criminal law separation
of mens rea and actus reus, which is principle that we have to look beyond the act to see if
there was a culpable state of mind
4. rejected in People v. Rojas and by MPC
5. MPC solves linguistic problem by defining purpose as allowing for knowing, belief, or hoping
for attendant circumstances
i. as opposed to purpose to purchase the goods that were in fact stolen
MPC
1. he would be liable under 5.01(1)(a) because he believed the goods he was buying to be
stolen, and his conduct would constitute a crime if his belief was true
People* v. Dlugash §5.01(1)(b)
guy shot someone already dead, thinking he was still alive
Holding
1. a defendant can be convicted of attempted murder if he believed the person to be alive at
the time because there could be intent to kill
MPC
1. he would be liable under MPC§5.01(1)(b) because he had the purpose of causing the result
(death of the victim), and the mens rea required by the crime (murder) as to the
circumstances (purpose, under §2.02 meaning knowledge, hope or belief that the victim was
alive)
2. MPC dispenses with the legal-factual mistake distinction and instead focuses on actor's own
mind
Note
1. the prosecutor must prove there is a criminal statute punishing what the defendant intended
to accomplish under §5.01, so true legal impossibility (it wasn't a crime) is still a defense
i. liability exists if such a crime could have been committed if the attendant circumstances
were as the defendant believed them to be
2. JJ: later reversed because the jury did not focus on intent- must show that he had an intent
to kill, so whether he thought the victim was alive is very important
United States v. Berrigan*

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∆ smuggles letters into prison thinking warden doesn't know, warden did know and agreed to let
courier pretend to cooperate; ∆ charged with smuggling without the knowledge and consent of
the warden
Holding
1. factual impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the commission of the intended crime
• not a defense to attempt (ex. pickpocket empty)
2. legal impossibility is when the intended acts, even if completed, would not be a crime
• when the consequence resulting from the intended act does not amount to a crime
• attempting to do that which is not a crime (sending letters with the warden's consent) is not
attempting to commit a crime (even with the requisite mens rea, in this case thinking the
warden had not given consent)
For
1. it is a legal impossibility because attempting to do that which is not a crime (sending letters
with the warden's consent) is not attempting to commit a crime (even with the requisite mens
rea, in this case thinking the warden had not given consent)
MPC
2. would be guilty under 5.01(1)(a): purpose as to the conduct that would constitute the crime if
the attendant circumstances were as she believed them to be
i. meant to smuggle without consent, believed that she did not have Warden's consent
3. there is no factual/legal defense under the MPC, it does not make the distinction
- United States v. Oviedo*
man sells noncontrolled substance to federal agent in sting thinking it was heroin
Holding
1. distinction between factual and legal impossibility is not well-defined (could be legal because
his act if completed would not be a crime, could be factual because he only failed because
of a circumstance unknown to him)
2. to convict a defendants for acts that are not actually illegal borders on penalizing thoughts
- Bell
child predator sting
Holding
1. inchoate offense
Against
1. defendant argues impossibility
2. other defense would be whether the took a substantial step (factual question)
MPC
1. impossibility defense would not hold under MPC

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- Voodoo Case
man tries to kill using voodoo
Holding
1. inherent impossibility is a defense
For/Against
1. may depend on whether we think defendant has demonstrated his willingness to commit a
crime
Against
1. defendant has not taken a substantial step for attempted murder
MPC
1. would not allow defense of inherent impossibility
2. lacks substantial step for attempted murder

Solicitation as Attempt
State v. Davis*
man solicits undercover police officer to assassinate someone
Holding
1. a mere solicitation is insufficient to constitute the actus reus for an attempt
i. only planning was involved, which are mere preparations
For
1. many states hold that no matter what act the solicitor commits, he cannot be guilty of an
attempt because it is not his purpose to personally commit the offense
Against
1. some courts hold that solicitation can constitute a substantial step to committing the offense
MPC
1. would come out in favor of the state, but under §5.02
2. solicitation is a separate substantive offense under the MPC §5.02
i. thus you can be charged with an attempted solicitation
3. however, soliciting an innocent agent to engage in conduct constituting an element of the
crime is a substantial step for actus reus of an attempt under §5.01
United States* v. Church
man solicits undercover police officer to assassinate his wife
Holding
1. defendant's substantial involvement in the planning of the murder and hiring of the hitman
constituted a substantial step toward commission of the crime, established the requisite
overt act and amounted to more than mere preparation
For

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1. one reason for labeling an acts as a preparation instead of an attempt is to give the accused
a chance to change his mind; if the accused has fully demonstrated willingness to commit
crime and has done everything within his power, the act is properly an attempt
MPC
1. would come out in favor of the defendant
2. solicitation is a separate substantive offense under the MPC §5.02
i. thus you can be charged with an attempted solicitation
3. soliciting an innocent agent to engage in conduct constituting an element of the crime is a
substantial step for actus reus of an attempt under §5.01

VIII. COMPLICITY - ACCOMPLICE LIABILITY
Mens Rea
Hicks* v. United States
A yells at V (about to be shot by Rowe, the P) "take off you hat and die like a man"; P
understands words to be words of encouragement and kills V
Holding
1. accomplice liability requires that the accused accomplice acted with the intent or purpose to
encourage or assist in the conduct element of the crime
2. it is not enough that the accomplice intended the act which in fact assisted the principal, the
accomplice must have intended to assist in the commission of the crime
3. mere presence is also insufficient, even assuming A was present to help if needed, unless
there was a pre-existing conspiracy to kill the deceased
For
1. JJ: strict liability would be too harsh
MPC
1. same result under MPC
2. mere presence

State v. Gladstone*
A (Gladstone) provides undercover police officer P (Thompson) address where he might be able
to get drugs (from someone named Kent)
Holding
1. defendant must intend to assist or encourage the commission of the substantive crime
For
1. JJ: he had clear intent, but the intent may have been to aid in the purchase of the drugs, not
to assist in the sale with which he was charged

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2. guilty party required in common law
MPC
1. liable under the MPC he would be liable, because 2.06(7) requires merely the commission of
the offense not a guilty party, and makes immunity personal
2. he is an accomplice to the officer for the purchase under 2.06(3)(ii) because he aided him in
planning of the offense by drawing a map, and he is legally accountable for his accomplice's
actions under 2.06(2)(c), thus he would be guilty of an offense under 2.06(1) because the
offense was committed by someone for whom ∆ was legally accountable
State v Wilson; State v. McKoewn
- other cases come out opposite of Gladstone, and the only difference vs. Gladstone is the

physical presence, which is irrelevant because accomplice liability does not require physical
presence.

- indicates Gladstone wrongly decided
See NY Facilitation Statute
• a person is guilty of criminal facilitation in the second degree when, believing it probable that he
is rendering aid to a person who intends to commit a crime, he engages in conduct which
provides such a person with means or opportunity for the commission thereof and which in
fact aids such a person to commit a felony
•

decreases the culpability required for accomplice liability because prosecutor does not
need to prove purpose, merely knowingly assisting a serious crime is sufficient

•

expansive. void for vagueness?

United States* v. Fountain
inmate 1 (Gometz) gives inmate 2 (Silverstein) a knife, who uses it to kill a guard
Holding
1. mere knowledge as to conduct of the substantive crime (by the principal) is sufficient for
serious crimes
i. purpose (intending the conduct encouraged) is required for lesser offenses, but
knowledge is sufficient for major crimes
For
1. JJ: very extreme fact pattern, the knowledge here borders intent
2. consistent with idea of deterring major crimes, so we require less to convict
Against
1. requiring mere knowledge may be overly broad and drag in unassociated parties (ex. store
clerk)
MPC

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1. under MPC, Gomez would likely still be liable since in giving the knife, he had the purpose
that Silverstein would use it to stab the guard (because why else would he give him the
knife). since he is guilty for Silverstein's conduct and his own mens rea, he would be guilty if
Columbine Case (gun supplier)
Holding
• statute: can't sell firearms to minor, dealer held liable under facilitation statute for providing
guns to juveniles - only requires recklessness as to the age of the handgun recipient and no
mens rea to the injuries the juvenile would commit
• supplier had no purpose or even knowledge of furthering the underlying crime, can't get him
on attempt
1. facilitation statutes can be used to punish when there is not even knowledge of the
underlying crime
• heavy punishment because of subsequent mass murder committed with the guns
Material Support of Foreign Terrorist Organizaitons (PATRIOT Act)
• makes it a serious substantive crime to provide material support to an FTO even if the
assistance is meant to further non-terrorist activities within the organization (ex. how to petition
to the UN for assistance)
• material support is any expert advice or assistance
• differentiates from independent advocacy (ex. writing an article or petitioning that they
shouldn't be designated as an FTO- does not involve association with the FTO)
• requires only knowing provision of support
• Abrams: beefed up definition of support requires very low mens rea- not a real principle in
criminal law

• basically, aid any association with an FTO makes you an accomplice
• argument that the statute over-reaches- lacking mens rea intent to aid terrorism
Campbell
• real estate agent convicted of laundering for failure to discover and report client's source of
proceeds
• charged with aiding and abetting money laundering because she knowingly received illicit
funds
• but she didn't know, so prosecutors uses willful blindness to arrive at knowingly
Holding
1. statute makes it punishable transacting for knowing the transaction is designed to conceal
the nature of the unlawful funds
Against
1. better characterized as an omission, question of whether there was a duty

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Mens Rea- Result
State* v. McVay
boiler explodes on steam ship; captain convicted of manslaughter (inadvertent), while owner
charged for aiding captain
• argues that there can't be accessorial liability (which requires intent as to the conduct) since
manslaughter is inadvertent
Holding
1. JJ: accomplice liability requires intent as to conduct, and mens rea of the substantive crime
as to result
i. complicity for an inadvertent crime (manslaughter) is possible if aiding and abetting the
conduct constituting the crime, while possessing the necessary culpability as to the
result
For
2. accomplice liability only requires intent to encourage or assist the conduct element of the
crime, but does not require intent or purpose as to the result element
3. there is accomplice liability for negligent manslaughter if the defendant intentionally directs
or encourages the grossly negligent act
• result: generally accomplice must act with the same mens rea toward result as is require
to convict the principle of the object crime
• ex. for reckless vehicular assault where A helped P steal the car, A is only liable if he
was reckless towards the victim for vehicular assault
Against
1. d
MPC
2. JJ: if ∆ was negligent (in failing to maintain the boiler to to have it inspected), there was
sufficient causation under 2.03 to hold the owner liable as a principal as well, and he should
have been charged as a principal, and in the alternative as an accomplice
3. fact scenario: attempted negligent manslaughter for accomplice but not principal?
- accomplice can be held liable (attempted negligent manslaughter) for directing someone
to negligently manslaughter, even if that person fails to kill
- but the actor cannot be held liable for attempted negligent manslaughter, since he can't
simultaneously intend to kill and be negligent as to the deaths
Commonwealth* v. Roebuck
Roebuck assists in luring a victim to the apartment, who is shot

• argues that can't be an accomplice to an unintentional killing, since being an accomplice
requires intent as to the conduct (would be intending to aid an unintentional act)

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• Roebuck (1) by luring, assisted in the conduct leading up to the commission of the offense
(ambiguity), and (2) was reckless (as to result) as he participated in the events leading up to
the victim's death
Holding
1. an accomplice may be liable (for 3º murder) when he acts recklessly as opposed to
intentionally
For
1. ambiguity of "offense" under 2.06(3) rectified by 2.06(4)
2. concurrence: only requires intent to aid in a malicious act that results in a killing
Against
1. ambiguity exists
MPC
2. MPC 2.06(4): when causing a result is an element of the offense (reckless manslaughter),
the accomplice needs to act with the mens rea required for that offense (recklessness), and
is liable if he is an accomplice in the conduct causing the result
3. must look to 2.06(3) to see if he was an accomplice to the conduct (luring) leading up to the
result
4. π must prove causation - that his conduct (luring) led to the death
note:
5. under MPC 2.06(3), an accomplice to an offense is anyone who aids or attempts to aid the
principal actor in committing the offense with the purpose of promoting its commission
i. ambiguity as to whether "the offense" refers to the luring or the manslaughter, but 2.06(4)
directs us to only look at the conduct leading up to the manslaughter
6. Pennsylvania Murder Statute:
i. 1º - intentional murder
ii. 2º - felony murder
iii. 3º - reckless murder (recklessness to human life)
- note. negligence is manslaughter not murder
People* v. Russell
• school principal killed in 3 way gun fight
• all participants charged with second degree murder on the basis that (1) each intentionally aided
the defendant who fired the fatal shot
Holding
1. there is accomplice liability when ∆s are acting in concert (jointly and voluntarily) and have
the purpose to aid each other to engage in the danger-creating conduct
For
2. relies on Abbott (drag racing), liability when defendants are acting concert - participation in
the thing (race/battle) made the danger possible

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3. aided each other (in trying to injure one another) to engage in the mutual combat that
caused Daley's death
•

court distinguishes this case and a case of an ambush, where defendants don't agree

beforehand to engage in a gunfight
4. enough evidence to sustain finding that defendants tacitly agreed to engage in a gun battle
that risked and killed the victim, intentionally aided and encouraged each other to create the
crossfire killing the victim
Against
1. Jacobs: causation issue:
i. there was proximate causation under 2.03(3)(b), since he was aware of the risk and it
was not too remove
ii. there may not be but-for causation under 2.03(1)(a), since there might have been a
shootout even if defendant had not participated
2. question of whether he is an accomplice, because he might not intend to encourage the
other's conduct
People* v. h
• P kills victim rather than roughing him up to get information, as accomplice (Luparello) had
expressly told him to do), thereby defeating the accomplice's goal
Holding
2. an accomplice may be found liable for all the crimes reasonably foreseeable crimes put into
motion by his aid, not just those he intended to facilitate or encourage
i. still followed in minority of states
Against
1. makes makes negligence, not purpose, the standard for accomplice liability
MPC
1. rejected by MPC- requires the aider to encourage the identical crime committed by the
principal
i. MPC is concerned with subjective culpability of a person, not the natural or probable
consequences of their actions
ii. reflects Cunningham: the MPC looks at the subjective mental state
2. would probably still be liable in the same way as Roebuck
j (∆) v. Jeffery*
• guilty of aiding and abetting a musician play an illegal concert because A attended the concert
and wrote about it laudably
Holding
1. Jacobs: under common law, mere encouragement with the hope that the crime will occur is
enough
2. the aid provided does not need to be material or even helpful

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Against
3. de minimis under 2.12; his encouragement was insignificant, like in this case, it likely wasn't
sufficient to constitute aiding the crime
MPC
4. Under the MPC mere encouragement is not enough, the word encouragement is left out of
2.06
i. encouragement has to constitute aiding, assisting to be enough for liability (ex. the crime
is taboo and the encouragement is needed to keep the actor going)
New Bedford Rape Case; 2 guys in Nevada Case; Stancid (p692)
1. when there is no duty, an omission is not culpable for bystanders that are present
2. in the Stancid case, she was culpable because she helped and had a legal duty to prevent
her daughter from being raped
State* v. Tally
judge stops telegram warning of danger from getting to his enemy, who is then killed
Holding
1. the aid need not be material or have been effective
i. can be accomplice liability if it made accomplishing the task easier for the principal actor
ii. can be accomplice liability even if it might not have had an effect on the outcome (even if
the outcome might have happened anyways)
For
2. accomplice liability is not rooted in causation
MPC
1. same result under 2.06(3)(a)(ii), accomplice if there is an attempt to aid in the offense
State v. Hayes*
A encourage P to rob the store, but P (related to store owner) had no intention of stealing any
goods and only went through with charade to secure A's conviction
Holding
1. common law: liability is derivative, so a guilty principal is needed to convict an accomplice
For
2. guilty principle requirement: liability is derivative and thus A cannot be convicted if there is no
guilty principle
MPC
1. MPC rejects the guilty principal doctrine under 2.06(7)
2. P merely has to engage in the conduct element of the crime for A to be liable as an
accomplice, providing A had the requisite mens rea
State v. Davis/State v. Church
cases where the ∆ hires an undercover officer as an assassin

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MPC
3. since the undercover never goes through with the conduct, lacking both actus reus and
mens rea, the defendant can only have attempted to be an accomplice under 5.01(3)
4. 2.06(3)(a)(ii) vs. 5.01(3)
i. 2.06(3)(a)(ii) - attempt to aid - where the aid is unsuccessful or incomplete, but P does
the actus reus of the crime
ii. 5.01(3) - attempt to aid - where the aid is unsuccessful or incomplete, and P does not do
the actus reus of the crime

Vaden* v. State

• state trooper hunts foxes, ∆ liable for his actions
Holding
1. personal immunity does not transfer to accomplices under MPC 2.06(7)
For
1. d
Against
2. sentencing entrapment problem
3. due process problems, since the culpability of the A would depend on whatever the law
enforcement officer (acting as the principal actor) chooses to do
MPC
1. 2.06(7)
2. affirmed accomplice convictions even though the culpable act was committed by (immune)
law enforcement officer
3. the officer's actions were not justified, and even if they were, the immunity would be personal
to the officer
Derivative Nature of Accomplice Liability
1. under common law there must be a guilty principal Hayes
• however, if P is acquitted, accomplices may still be liable
• MPC agrees, does not require a guilty principal (though it does require a crime)
2. a person is liable as the principle if he uses an innocent (or irresponsible, like a 6 yr old)
actor
3. if A is immune from the crime being committed (ex. only a bank employee can be liable for
falsifying records), and innocent P is duped into committing the crime, A is still punished as
a principal even though he does not have capacity to commit the crime himself US v. Ruffin

••••••••••••••••••••••••••••••••••
Case

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f
Holding
1. d
For
1. d
Against
1. d
MPC
1. d
••••••••••••
- Case
f
Holding
1. d
••••••••••••••••••••••••••••••••••••••••••••••••••••

IX. CONSPIRACY
Interstate Circuit v. United States
cinema owner sends letters to distributors and other cinemas to initiate price fixing
1. participation in a scheme with knowledge of the other parties' existence and that their
cooperation is necessary to achieve the target crime is sufficient for conspiracy
i. proof of an agreement can be from circumstantial evidence
ii. the agreement can be tacit
iii. cooperation with a group to achieve a target crime constitutes conspiracy
2. unlawful conspiracy may be formed without simultaneous agreement on the part of the
conspirators
3. JJ: the actus reus is that there is an agreement that can be tacitly inferred
i. you don't need everyone meeting and agreeing, but do you need some evidence or can
you just infer from mere conduct?
a. Garcia seems to imply that you don't need evidence only if pre-arrangement can be
logically inferred because the nature of the crime requires pre-arrangement;
otherwise you probably need some kind of meeting or evidence beforehand
ii. letter creating pre-arrangement from which agreement can be tacitly inferred

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United States v. Garcia*
gang member seen shooting charged in shootout, charged with conspiracy because injured was
definitely shot by either him or fellow gang members
1. gang membership does not automatically entail conspiracy, there must be pre-arrangement
that can be inferred
i. an inference of agreement is only permissible when the acts logically require
coordination and planning
ii. no indication that the violence began with some pre-arrangement
2. despite being armed and ready for violence, no conspiracy unless they had plans to initiate it
3. JJ: membership in a gang or a group (like interstate) is context that can be used to infer an
agreement, but mere membership is not enough, need something more
i. in Interstate that something was the letter, in Garcia there was nothing
ii. with accomplice liability it can be spur of the moment, but in Garcia there needs to be
pre-arrangement
a. with more facts, there could be accomplice liability in Garcia
4. JJ: 5.03(1) it says agrees with rather than enters into an agreement
i. agrees with seems more causal, makes it broader and may require less for proof
MENS REA
People v. Lauria* owner of telephone answering service admitted he knew some of his
customers were using the service for prostitution, but that he never intended to further their
criminal business
1. conspiracy requires intent to further the criminal enterprise
2. intent can also be inferred from knowledge for serious crimes
i. ex. a supplier may be liable on knowledge alone when he furnishes goods that he knows
will be used to commit a serious crime, but not for a misdemeanor
3. if it is a serious crime (1º or 2º felony you only need knowledge and agreement)
- like for overt act, you might only need knowledge that the serious crime will occur, and
not intent

-

however, most states require purpose even for serious crimes Camerano

4. Falcone: larger-than-normal quantities of sugar sold (for moonshining), no liability
5. Lauira: drug wholesaler selling drugs in quantity to physician that they could only be used to
supply addicts, liability

MistakeCorrupt Motive Doctrine
People v. Powell*

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ignorance of a malum prohibitum crime
1. a conspiracy must be animated by a corrupt motive or intent to engage in conduct known to
be wrongful
i. allows affirmative defense that defendant acted in good faith because they were unaware
the statute existed - allows ignorance of the law and honest mistake of the law to be
exculpatory
ii. argument that a conspiracy by definition implies an agreement with an evil purpose
iii. supported by argument that they have not manifested a willingness to commit crime, and
if defendants have no criminal intent, they are more likely to desist if they discover the
illegality
2. heavily criticized for traditional reasons - too hard to disprove, encourage to know the law
i. some courts allow the corrupt motive doctrine only for mala prohibita crimes, but not
mala in se
ii. many courts reject the doctrine
3. rejected by MPC
Attendant Circumstances
what mens rea as to attendant circumstance? MPC is ambiguous

• best argument for requiring the mens rea of the underlying crime: some statutes make jx
elements a material element of the crime, and requiring purpose as to these would undermine
the statute
US v. Freed
1. the mens rea of the underlying crime is sufficient for aggravating circumstances (ex. strict
liability as to whether you are selling drugs near a school)
2. thus:
i. if substantive crime says you are strictly liable as to knowledge of being near as school:
if you agreed to sell drugs here, but did not know here was near a school, the agreement
was still sufficient for an agreement to sell drugs near a school
ii. if the substantive crime says you must have the purpose to sell drugs near a school: if
you agree to sell drugs here and didn't know here was near a school, you can't have
agreed to sell drugs near a school

Conspiracy as Accomplice Liability
Pinkerton v. United States*
brothers Daniel and Walter are neighbors and conspire for Int. Revenue Code violations, which
puts D in jail; W then commits new offenses of the same kind while D is in jail

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1. when there is a continuous conspiracy, each co-conspirator is responsible for any
reasonably foreseeable crime committed by a co-conspirator in furtherance of the
conspiracy
2. creates a new route to accomplice liability - co-conspirators are vicariously liable for coconspirator's acts
for:
3. some jurisdictions already use foreseeability to determine accomplice liability for unintended
crimes committed by the principal (Luparello), so the Pinkerton doctrine is not too radical a
departure from existing jurisprudence
against:
4. we have no idea what he actually agreed to in the first place
i. prosecutor will characterize the agreement broadly, as him wanting to run the
moonshining operation
ii. defendant will say they only agreed to do the initial run, and that the later moonshining
was not agreed to by the defendant (who was already in prison)
iii. we don't know how broad their agreement actually was. creates vast exposure
5. what constitutes in furtherance of the conspiracy?
i. vague
MPC:
6. rejects the Pinkerton doctrine because there is no route to accomplice liability under 5.03
7. the only route to accomplice liability is 2.06, where defendant must satisfy all the elements of
accessorial liability (intent to aid the particular offense)
State* v. Bridges
B gets into argument with A, B brings back armed friends to subdue A's friends so B can fight A,
armed friend kill one of A's friends
1. application of Pinkerton under NJ statute
for:
2. the death was foreseeable (doesn't require intent to kill) since the agreement was to cover
his back in any way necessary
against:
3. the agreement
i. highlights problem of not having way to determining the actual scope of the agreement
NJ Statute
4. NJ statute is more expansive than Pinkerton, since it does not require foreseeability, and "in
furtherance of" is defined broadly
i. allows conspiracy to be charged as accomplice liability, creating another path to
complicity
ii. once you're an accomplice, you're liable for all the crimes of co-conspirators

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United States v. Alvarez (proposed drug sale erupts into gun fight killing a federal agent, coconspirators for sale not involved in the fight held liable)
1. application of Pinkerton
2. though murder was not within the original scope of the conspiracy, it was reasonably
foreseeable, and each of the defendants played a significant part in the transaction
i. suggestion that those who play a remote or attenuated role may not be liable (reinfored
in Walton)
ii. issue of what is the requisite mental state for attendant circumstances: would they
normally be liable for the aggravated crime of a federal agent? - if the jury finds it
reasonably foreseeable that they could be dealign with a federal agent, aren't they liable
for the aggravated crime of killing a federal agent under Pinkerton?

Krulewitch
iii. assuming the conspiracy includes concealment of the crime after its completion would
entail the conspiracy lasts forever, and the liability would be endless because you would
always be liable for the acts of co-conspirators under Pinkerton
Jiminez

Single or Multiple Conspiracies
- important because under Pinkerton each defendant can be held liable for the acts of others, but
only in the same conspiracy

- also, if there is one conspiracy, joint trial is allowed, which creates guilt by association
Wheel
Kotteakos* v. United States
multiple clients with no relation to one another all using services of one broker to commit fraud
(for loans under National Housing Act); ∆ contends no evidence of a single conspiracy between
all
1. where one person is dealing with two or more persons who have no connection with each
other, although each deals individually with the same person, they are not necessarily part of
a single conspiracy
i. not one conspiracy - similarity of purpose by various spokes dealing with one person is
not the same as a common purpose
2. factors: connection between alleged conspirators, proof that parties were part of a single
common plan
i. each loan was an end in itself
3. the jury could not possibly have found one conspiracy here, since many of the alleged
conspirators had no connection with one another and no evidence of a common plan

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• wheel and spokes: multiple defendants committing the same type of crime (ex. people
committing insurance fraud) with a common participant (one agent) does not entail one
conspiracy without a connection or relationship between the defendants
•

requires interdependence, communication, division of labor, or cooperation between the
defendants to make them part of one conspiracy, as opposed to separate conspiracies to
commit the same offense

•

some wheel arrangements can be one conspiracy, such as illegal gambling services that

require several customers with one bet taker
JJ: danger of guilt by association
Anderson v. Superior Court
alleged conspirator one of several people who referred women to Stern for abortions in
exchange for a fee, indictment charges all the referrers under one conspiracy
1. some wheel arrangements can be a single conspiracy
i. if the conspiracies are not distinct or disconnected, but are parts of a larger scheme
(single scheme, or is each transaction an end in itself creating multiple plans?)
2. requires knowledge of the other referrers and saw fit to join with them and Stern (the
abortion doctor)
• argue: consistent with Kotteakos
• could distinguish based on facts, if they were part of a single plan to create an abortion clinic
(Anderson) vs. multiple plans to commit fraud (Kotteakos)
•

in this case, they are employees of the person at the center of the wheel, so they are
necessarily connected with him and each other as one enterprise as almost employees of
one business, as opposed to mere customers who are not

•

does stand for principle that you can have one conspiracy with a wheel

Chain
United States* v. Bruno
smugglers imported narcotics, paid by middlemen, who distributed to consumers, no
communication or cooperation between consumers and smugglers, or between the two groups
of retailers; 88 people from each of the 3 groups charged for a single conspiracy to import, sell,
and possess narcotics
1. there is a single conspiracy where each member knows that the success of that part with
which she was immediately concerned was dependent on the success of the whole
2. evidence did not show any cooperation or communication between the smugglers and either
group of retailers, court found one conspiracy because the parties' knowledge of the
existence and importance of the remote links could be inferred from the nature of the
enterprise: smugglers knew that the middle people must sell to retailers who must sell to
customer and the reverse; each group knew that the unlawful business necessarily extended
to each of the other groups

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i.

court: evidence was enough to show one conspiracy, as each member knew that the
success of that part with which he was immediately concerned was dependent on the
success of the whole
3. worry that this is too expansive - warps the idea of criminal agreements that increase
danger; discriminatorily targets criminal economic ventures
4. uncertain in application: how does this work when the players change,
5. under MPC, could conclude that the smugglers conspired to commit the illegal sales to the
retailers, but that the retailers did not commit the importing of the smugglers, since the MPC
only looks at what crimes each individual believes he has agreed to
Peoni (from Bruno)
6. Bruno court distinguishes Peoni (chain where Peoni sells counterfeit money to Regno, who
sells it to Dorsey)
7. not a chain because Peoni knew Regno might sell the fake bills, but it made no difference
whether he passed the bills himself or sold them to a second passer
i. also, the amount sold was not of such a large quantity that a second passer was
necessary
8. Peoni did not plan the further sales, and the sale was not so large that Regno could not
dispose if it himself
9. Peoni is not a one-conspiracy chain because in a one-conspiracy chain, it must be
concluded that the defendants had knowledge of its essential features and broad
scope
i. Peoni did not know whether the drugs would be passed onto the retailers, Bruno
manufacturers did
United States v. Borelli
elaborate heroin importing and distribution operation
• chain does not entail liability for the links at either end who do not know of others performing a
similar role to their own
• difficult to apply the concept of an agreement in a complex business scheme with changing
players where people move in and out
United States v. Swafford*
Swafford sells iodine to meth cooks, charged with conspiracy to aid meth production, and to
distribute iodine for meth production
1. no single conspiracy because the cooks purchasing the iodine had no relationship with one
another
United States v. Torres-Ramirez*
drug supplier sells 2kg of coke to a distributor

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1. mere knowledge for a conspiracy does not constitute joining a conspiracy
2. a seller joins does not automatically join in a conspiracy when there is an enduring
relationship that directly or indirectly shows the seller has knowledge of the conspiracy to
distribute the drugs is false
United States* v. Morris
• counter-case to Torres-Ramirez
1. the success of the conspiracy depended on the continued willingness of each member to
perform its function
i. without the supplier there would be no cocaine for the middlemen to sell to buyers
2. the supplier is in the same conspiracy as his competition (other suppliers) because the
larger common plan was the sale of drugs through the common middleman for profit, and
each supplier was necessary to keep the larger common plan in existence
i. seems more consistent with Bruno
United States v. McDermott
investment banker passes insider information to his mistress (adult film star) who gives it to
another man who uses it to commit insider trading, banker charged of conspiracy to commit
insider trading
1. a conspiracy cannot be expanded to include co-conspirators about which the conspirator
had no knowledge (who he didn't know existed, and had no reason to know existed)
2. three exceptions:
i. if the original conspiracy had been broader to include others outside the agreement (ex.
agreement to facilitate insider trading for the group of conspirators and each members'
friends)
ii. if the unknown party had been part of the ramifications of the plan which could be
reasonably foreseen as a necessary or natural consequence of the unlawful agreement
iii. knowledge of the relationship between a member and the outsider (knowledge of the
outsider's existence [and implicitly, the likelihood that he might get involved])

RICO
Enterprise
1. "enterprise" for RICO can include exclusively criminal organizations United States v. Turkette
i. turning point for RICO's usefulness, massively expanded its scope as a tool to combat
organized crime because it made it practically a crime to be a criminal

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2. Boyle v. United States
3. an association-in-fact enterprise must have at least three structural features: a purpose,
relationships among those associated with the enterprise, and longevity sufficient to
permit those associates to pursue the purpose Boyle v. United States
Pattern
1. HJ Inc. (allegations that employees violated RICO by bribing a utilities commission)
H.J. Inc.* v. Northwestern Bell
phone company sues, alleging NW and employees violated RICO by bribing members of the
Minnesota Public Utilities Commission
1. there was a pattern of racketeering activity, not just a single scheme to influence the MPUC
2. a pattern must involve something more than two predicate acts, but does not need separate
legal schemes; acts must be related and pose a threat of continued criminal activity
1. pattern imports some requirement beyond the existence of mere existence of multiple
predicate acts
3. a pattern requires relatedness and continuity
4. predicate acts are related if they have similar purposes, results, participants, victims,
methods of commission, or are interrelated by distinguishing features, and are not isolated
events
5. continuity can refer to a closed period of repeated conduct
6. Scalia concurrence:
i. relatedness test does not give a bright-line rule: are two acts related if both their victims
happen to be women?
ii. continuity is not properly defined as the threat of repetition, since all RICO acts
necessarily require repeated conduct because of the multiple-act requirement
Conduct and Participation
Reves v. Ernst & Young*
accounting firm misrepresents a firm's assets at original cost of $4.5m instead of present market
value of $1.5m; firm's creditors sue under RICO following bankruptcy
1. violation of §1962(c) requires conduct or participation directly or indirectly in an enterprise's
affairs requires having some role in directing or managing the the enterprise's affairs
i. the accountants did not direct or manage the affairs of the firm
2. managing includes directing and being directed
i. no evidence that the firm's management directed Ernst & Young to use fraudulent
numbers
3. if plaintiffs had alleged an association in fact consisting of Young, White (the co-op's GM),
and and the Co-op constituted the racketeering enterprise, and Young was the director of it's
affairs, then there could be liability under Turkette/Boyle if there is a continuing unit

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United States v. Urban (inspectors accept bribes from plumbers being inspected engaged in
operation or management)
1. managing an enterprise's affairs requires only a nexus between the person and the conduct
in the affairs of an enterprise
2. RICO expands who can be charged as one conspiracy, in this case a wheel conspiracy case
charged as one conspiracy

RICO Conspiracies
Salinas v. United States
defendant did not accept or agree to accept two bribes, but agreed to facilitate a scheme where
the co-conspirator had accepted multiple bribes (and thus committed at least two acts of
racketeering activity)
1. RICO conspiracies do not require proof of an overt act
2. in a RICO conspiracy the defendant does not have to personally commit, or agree to
personally commit, the two predicate acts requisite for a substantive RICO offense under
1962(c) for a conspiracy conviction under §1962(d)
3. a conspiracy can be charged even if the defendant does not personally commit or agree to
personally commit every each and every part of the substantive offense - 1962(c) Salinas

Fernandez
wife of Mexican mafia boss collects money and send messages on his behalf and smuggles
drugs and money to him during prison visits, convicted of RICO conspiracy
1. RICO conspiracy conviction upheld because wife knowingly agreed to facilitate a scheme
which included the operation or management of a RICO enterprise
2. conspired with someone who is operating and managing an enterprise
United States v. Sutherland*
traffic court judge conspires with two others (Walker and Maynard), who don't know of each
other's activities, to fix traffic tickets
1. RICO provides a new objective (or substantive offense) that can be agreed on, but a RICO
conspiracy still requires an objective on a common objective
2. no common agreement on an overall objective
i. no single RICO conspiracy because the two others did not agree to participate in a
(common) bribery scheme with the judge, and did not necessarily know that there would
be another also conspiring with the judge
United States* v. Castro

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similar facts to Sutherland; three lawyers charged with paying kickbacks to judge in exchange for
appointments, no evidence each of the lawyers knew about or benefitted from appointments of
the others
1. lawyers and judges in a single RICO conspiracy
2. dissent: inconsistent with Sutherland, Sutherland holding is the correct holding
United States v. Elliott
1. protection from organized crime
2. RICO is designed to include those even peripherally involved with the enterprise
3. remote associates of an enterprise may be convicted as conspirators on purely
circumstantial evidence (does not require direct evidence of an agreement)
i. does not violate idea that guilt is individual
ii. individuals are not tried en masse for distinct offenses committed by others
a. distinct offenses are punished because they represent collective action towards an
illegal end
iii. does not punish mere association with conspirators, nor mere knowledge of illegal
activity - RICO proscribes conduct not status

CORPORATE CRIMINALITY
New York Central & Hudson River R.R. v. United States*
attack on the Elkins act, which says that a corporation is responsible for crimes of its agents
1. a corporation can commit a crime
2. "some crimes in their nature cannot be committed by a corporation"
i. inherently human crimes
a. crimes like murder seem inherently human, but a corporation can kill one human by
the act of another human
b. even crimes like murder can be committed by corporations when it benefits the
corporation
ii. crimes where the only punishment is imprisonment
a. corporations cannot be imprisoned
b. usually statutes exist to resolve this by providing fixed fines for corporations
United States* v. Hilton Hotels Corp.

• purchasing agent participates in supplier boycott in violation of the Sherman anti-trust act
• corporation gave agent express instructions to not participate in the boycott

1. respondeat superior: a corporation is liable for the acts of its agents in the scope of their
employment, even if the acts are contrary to general corporate policy and/or express
instructions to the agents
2. scope of agency: the purchasing agent had complete authority to buy supplies, and was in
the unique position to curtail purchases

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3. the court doesn't buy that the buyer's decision was personal; believe that the corporation
tacitly ordered the boycott and thus the act was to benefit the corporation
4. respondeat superior is arguably too broad, because it makes the corporation liable for things
they actually might not have wanted to happen

United States* v. Sun-Diamond Growers of California
agricultural co-op charged with wire fraud and illegal campaign contributions of its employee
Douglas
1. the jury is entitled to find the agent had intending to benefit the employer, even though the
crime came at some cost to the employer, because it also promised some benefit
2. company had argued the scheme was designed to defraud them, not benefit them, and was
pursued within Douglas' self-interest, so liability would punish innocent principles
3. allows for cases where the court doesn't believe the agent's claims he was acting for his
personal benefit (like in Hilton)
-United States v. Bank of New England
bank found guilty of willingly violating reporting requirements, though no agent had the requisite
willfulness
1. some employees were aware of the Act's reporting requirements, and others were aware of
the transactions, which was enough to constitute willfulness on the part of the bank
2. application of collective knowledge doctrine
Commonwealth* v. Beneficial Finance Co. (∆) - clean
• two ∆'s of its wholly owned subsidiaries and their employees bribe Small Loans Regulation

Board (bribery is a specific intent crime)
1. if a corporation has placed its agent in a position where he had enough responsibility and
authority to act in behalf of the corporation to handle the particular business in which he was
engaged during the commission of the offense, then the corporation can liable as a principal
2. reasoning:
i. focus is on whether the agent's acts an be treated as the corporation's acts
ii. jury can find BRD that the act of the individual constituted the act of the corporation
because it represented a corporate policy
3. the jury may infer a corporate policy by the corporation placing its agent in a certain
position (of authority), commissioning him to handle the particular corporate affairs in which
he was engaged during the commission of the offense
State v. Community Alternative Missouri, Inc.

• group home chain operating several franchises charged for knowingly failing to provide
reasonable and necessary medical care after resident dies in one of its franchise locations

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• location overseen by a branch manager, who was overseen by an area manager
1. the branch manager of a franchise location is a "high managerial agent"
i. is a supervising employee
ii. even in comparison to corporate officers, "branch managers" have comparable authority
in day-to-day operations of the corporation
2. factors: manager had broad authority over the particular business leading to the commission
of the offense (patient care)
i. supervised employees responsible for patient care
ii. determine what medical care would be given to patients
iii. disciplined staff, gave evaluations, made hiring decisions

Personal Liability of Corporate Agents
Partnerships
Gordon v. United States
sewing machine salesmen (inc. Gordon) sell machines illegally (illegal credit terms)
1. court mistakenly applies corporate criminal law to a partnership
i. court's mistaken holding: innocent employers (in a partnership) may be held criminally
liable for the acts of their agents and employees acting within the course and scope of
their employment
2. a corporation is a legal fiction, but a partnership lacks the corporate insulation from personal
responsibility
i. a person cannot be held criminally responsible for acts he doesn't know about, so
employer liability in a partnership requires knowledge
ii. a corporation, since it is a legal fiction lacking a mind, can be held liable through the
knowledge of its agents
Corporations
United States* v. Park

• food company president, warned by FDA of rodent infestation in Baltimore warehouse, assigns
subordinates to clean it up

• Park was aware that the person to whom he delegated the task to had previously been unable to
clean up a Philadelphia warehouse
1. when defendant has authority and responsibility to prevent the violation, or promptly correct
it, and fails to do so, there can be personal liability as long as defendant bears a "reasonable
relation" to the violation
i. government must show authority and responsibility for the conduct leading to the
violation

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2. the concept of "responsible relation" means a failure to exercise authority and supervisory
responsibility reposed in the by the business organization resulted in the violation, and thus
imports some blameworthiness
i. blameworthiness required is less than common law negligence
ii. the duty imposed on corporate agents requires the highest standard of foresight and
vigilance - an extraordinary standard of care
3. allows an impossibility defense so does not require what is objectively impossible
i. defense is satisfied as long as the corporate officer exercised "extraordinary care" and
was still unable to prevent the defense; the defense doesn't require the officer to show he
did not have the power to correct or prevent the offense (which would be more strict)
New England Grocers
a. does still permit claims that defendant was powerless to prevent or correct the
violation
ii. thus impossibility defense applies only to individuals and not corporations
4. there cannot be liability solely because of one's position in a company
5. a court can convict the manager of a corporate defendant as long as he was in a position of
power to prevent the crime, even if he was unaware of its existence
Dotterweich
6. applying Park, courts found responsible relation despite not participating in or being present
for the transaction
United States v. MacDonald & Watson Waste Oil Co.*
∆ dumps toxic waste illegally, president charged with knowingly doing so because he knew or
believed the same illegal activity had happened before
1. when there is a mens rea element (ex. knowledge) in the crime, a mere showing of
responsibility and authority is not an adequate substitute for direct or circumstantial proof of
that mens rea (ex. knowledge)
2. mens rea cannot be inferred from a person's position of authority of responsibility in the
corporation
i. though the requisite mens rea can be proven indirectly such that the person's position
and authority must be used, it cannot be inferred merely from the position they occupy
3. D'Allesandro's belief or knowledge of previous violations does not mean he knew of this
violation
4. distinguished from Dotterweich/Park, where a corporate officer is criminally liable for strict
liability offenses as long as they bear reasonable relation by virtue of authority and
responsibility, which does not necessarily require personal relation to the crime
i. i.e. Park does not apply to crimes requiring mens rea
a. punishments are usually much more severe
b. Park applies to strict liability offenses (usually health and safety, env't, antitrust)

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IX. SELF DEFENSE
SELF DEFENSE
People* v. Goetz
• youths approach G on subway to ask for $5
• G, having been mugged before, thought he was being attacked, and shot them, admitting he
wanted to murder them, and would have shot them more if he had more bullets
Holding
1. under the NY statute, self-defense is a defense only if the defendant's belief that it was
necessary is objectively reasonable in the defendant's situation
i. the actual characteristics of the defendant and victim can be used in determining
whether the acts were objectively reasonable
Arguments For Goetz:
2. the prosecutor must prove every element of the offense, and
3. once the affirmative defense of self-defense is raised, the burden is on the prosecutor to
disprove the affirmative defense BRD
4. in this case there were too many contested facts (whether he shot the all at once, etc.), the
burden became dispositive
Arguments Against Goetz:
5. lack of imminence
i. the confession that he wanted to finish them off after the threat had ended has probative
value
6. lack of necessity
i. it was not necessary to use the force his did, his force was disproportional because he
could have just brandished the weapon instead of firing
ii. just because the NY law permits deadly force to defend against robberies, it does not
mean deadly force is necessary and proportional every time there is a robbery
MPC
7. MPC: allows honest mistakes when the culpability resulting in the mistake is no greater than
the culpability required for the substantive crime
i. §3.04(1): for offenses (committed by the person asserting self-defense) defined by
purpose or knowledge, defendant need only to show that he had an honest belief that
the use of deadly force was necessary
ii. §3.09- for offenses defined by recklessness or negligence, a mistake (as to the need for
self-defense) must not be recklessly or negligently formed
8. Goetz was possibly reckless, or at least negligent, is his perception of the need for selfdefense, so he could be charged for reckless endangerment under the MPC
i. but the NY requirement is more strict, and if they found his use objectively reasonable
there, then he would likely be exculpated under the easier MPC as well

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9. JJ: it could it be argued that when a person carries a gun illegally, his actions are always
objectively unreasonable?
i. no, the possession of the tool and the acts done with it are two distinct acts because
there is no necessary connection (the former does not always entail the latter; i can have
an illegal gun and do reasonable acts)
a. i.e. i can also have an illegal gun and save lives; would that be unreasonable

- People* v. Romero
brother kills person endangering his brother, tries to introduce evidence of role of honor in
Hispanic culture
Holding
1. cultural defense is irrelevant to self defense
i. would imply that there was such a thing as a "violent culture"
People v. Romero
b. (brother kills person endangering his brother, tries to introduce evidence of role of honor in
Hispanic culture)
-----battered wife cases
State v. Kelly*

• chronically abused wife stabs husband, facts unclear as to whether she was aggressor of
defending; husband was charging at her at the time of shooting

• she tries to introduce battered wife syndrome evidence to establish that she was acting in selfdefense; trial court rules it inadmissible for the purposes of justifying her perception about
being in fear for her own life (subjective belief)
Holding
1. evidence of battered wife syndrome is admissible to establish that defendant honestly
believed she was in imminent danger of death, but not to show the reasonableness of her
belief
2. the standard is the reasonableness of a normal person in the woman's situation, not of a
reasonable battered woman in her situation
For
3. the battered-woman's syndrome is the effect of sustained physical and psychological abuse
in which the women are trapped in their own fear and believe there is no escape
State* v. Norman
abused wife attempts suicide then goes to social service agency, husband follows her there and
beats her then passes out; Norman kills husband while passed out
Holding

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1. when there is no belief of imminent danger, no self-defense claim (perfect or imperfect) can
be asserted
MPC:
1. MPC 3.04 only allows self defense when it is immediately necessary, and under 3.09 the
belief cannot be negligently or recklessly formed
2. since she was at least negligent in failing to perceive the lack of immediate danger, she
would be guilty of negligent homicide
Commonwealth* v. Sands
battered wife shoots dormant abusive and threatening husband
1. the the abuser is dormant at the time of shooting, there is no honest belief of an imminent
danger
State* v. Schroeder
prisoner stabs sleeping cell-mate who had threatened him
1. no evidence that danger was immediate, and cannot legalize pre-emptive attack
Commonwealth v. Fowlin
man attacked in packed nightclub shoots assailants, injuring one bystander
1. if a defendant reasonably believes that deadly force is necessary to avoid death or serious
bodily harm, he cannot be deemed reckless to the extent that he injures innocent bystanders
2. dissent: majority allows actor to respond with as much force as he chooses as long as he is
justified in acting in self-defense
3. MPC 3.09(3): defendant can be reckless even in exercise of self-defense
- the proper holding should separate the analysis of recklessness to the assailant and to the
victims, that one can be reckless in exercising self-defense to the bystanders even if he isn't
reckless to the assailant, but that in this case he wasn't reckless because the risk to the
bystanders was justifiable

Retreat
State v. Abbott
Abbott (victim) hits armed aggressors with a hatchet during a fight, claims ∆
Holding
1. ∆ has a duty to retreat before the use of deadly force or serious bodily harm
2. the actor must know of the opportunity
3. the actor must be able to retreat in complete safety
4. the state must prove this BRD
For Abbott/MPC
1. he may not have been using deadly force

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2. even if he were using deadly force, he was in the middle of a fight and unable to retreat in
complete safety
3. his driveway may be part of his dwelling, and there is no duty to retreat from one's dwelling
State* v. Smiley
drunk guy runs at cab driver with knife, cab driver shoots him, 1º murder
Holding
1. ∆ must retreat when he knows he can do so in complete safety
Against
1. defendant must know he was able to escape in complete safety, he may have been too
scare to realize
2. castle doctrine - workplace is protected and no retreat requirement
3. he may not have had intent to kill
i. but he did pull the gun at close range, so intent to kill likely to be inferred
Florida Stand Your Ground law
1. defendant cannot be engaged in unlawful activity, must meet attack with proportional force,
and deadly force only to prevent death or serious bodily injury
i. if ∆ was carrying a gun illegally, so he would not be entitled to use the stand your ground
law
ii. no retreat requirement
2. repealing stand your ground laws
i. harms domestic abuse victims who are attacked in public
United States* v. Peterson
Keitt attempting to steal windshield wipers from Peterson, P retrieves pistol; K is already leaving
when P threatens to kill K if he comes back; K advances with wrench raised, P shoots K
Holding
1. an affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or
fatal consequences is an aggression which, unless renounced, nullifies the right of homicidal
self-defense
i. aggressor has no right to self defense
Against
1. is a provocation an affirmative unlawful act?
MPC
1. would have been exculpated
2. MPC §3.06(1)(b) allows use of reasonable force to recover possessions
i. gave warning, did not use deadly force by threatening with the pistol
ii. MPC §3.11 states that pointing the gun is not a use of deadly force
iii. victim had a duty to retreat when threatened at gunpoint, thus his advance was an
disproportionate escalation, and thus an unlawful

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iv. under §3.04(1) even if ∆ is initial aggressor, ∆ is entitled to defend himself if victim
responded with unlawful force (by escalating unlawfully)
a. MPC does not use initial aggressor language
b. only exception is if ∆ provoked with the purpose to cause death or serious bodily
harm, evidence suggests he was merely trying to recover his property
United States* v. Dunn
• white guy kills black teenager in car at a gas station
• claims victim pulled a shotgun but none found
MPC
1. guilty for reckless/negligent homicide
2. §3.04(1) requires only a subjective belief as to the necessity of self defense
3. however, under §3.09(2) a recklessly/negligently formed mistaken belief can lead to liability
for crimes defined by recklessness/negligence
POLICE USE OF FORCE
Graham v. Connor
diabetic roughed up by police
1. police use of excessive force is analyzed under the Forth Amendment, and must be
objectively reasonable in light of the facts and circumstances, without regard to underlying
intent
Scott v. Harris
car chase
1. car chases are usually not an reasonable seizure under the forth amendment because the
high speed chance threatened the life of innocent bystanders
Tennessee* v. Garner (cop)
• police respond to unarmed prowler (15) trying to run away, shoot him after he doesn't stop
Holding
1. an arrest must be reasonable in basis and manner under the 4th Amendment ("reasonable
search and "seizure")
i. the force used must be reasonable with respect to the objective (dangerousness/crime
committed)
a. a suspect does not become more dangerous by evading arrest
b. apprehension is not worth death (can find them after)
2. for both felonies and misdemeanors, force can be used to apprehend but deadly force is
permissible only if the officer has probable cause to believe the suspect poses a risk of
death or serious injury to others if not apprehended, and that deadly force is necessary to
apprehend the suspect
For

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1. deadly force is capital punishment without due process
1. deadly force should be used only in extreme circumstances, because the government
interest often does not outweigh the individual interest in life
2. proportionality of police action
3. balance between effectively prevent crimes, and protecting mistaken or wrongfully arrested
Against
1. ability of police to accurately judge when deadly force is necessary
MPC
1. concurs: restricts use of deadly force tightly
2. force if notice is given and arrest is with warrant
3. deadly force only if felony, use or threat of death or serious bodily injury, and no substantial
risk to bystanders
i. still concerns about ability of officers to accurately judge situation
NECESSITY
People v. Unger*
man convicted of auto theft escapes from minimum security honor farm, after sexual assault and
death threats; jury told that reason for escape was immaterial
Holding
1. a defendant raises a successful defense of necessity if the harm he seeks to prevent
outweighs the harm caused by breaking the laws
2. a prisoner may use necessity or duress as an affirmative defense against a charge of
escape
Requirements
3. limited defense, and jury may consider relevant factors in assessing the necessity claim: (no
single element is required)
i. whether the defendant's fears were justified
ii. whether the threat was imminent and sufficiently severe
iii. whether there was time to resort to either the courts or prison officials and if such resort
would have been effective
iv. whether prisoner used violence against prisoner personnel or others to effect escape
v. whether the prisoner immediately reported his escape to police
a. the fact that defendant didn't report his escape immediately is not dispositive for his
necessity defense
MPC
1. could be liable under the MPC, though he subjectively believed there was necessity
2. the MPC allows the jury to consider public policy, so they may find there was no actual
necessity
Commonwealth v. Hutchins
man with debilitating illness for which marijuana provides remission growing weed at home

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Holding
1. public policy argument: alleviation of symptoms does not outweigh potential impact on
enforcement of drug laws and government interest in regulating the substance (would be too
widespread and easy to obtain exception)
NY Penal Law
1. conduct that would otherwise an offense is justifiable and not criminal when:
i. conduct is necessary to avoid an imminent public or private injury that has developed
through no fault of the actor, and
ii. is so severe that the desirability of avoiding the injury, according to ordinary standards of
intelligence and morality, outweighs the desirability of avoiding the injury sought to be
prevented by the statute defining the offense
2. necessity of conduct may not rest on considerations (of morality or advisability) pertaining
only to the statute prohibiting it, either in general or with respect to its application to a class
of cases
3. when evidence relating to necessity is offered, the court shall rule as a matter of law whether
the claimed facts and circumstances, if established constitute a defense
Explanation
- necessity is a defense if:

-

imminent injury for which actor is not at fault
harm avoided outweighs harm of conduct

- necessity of conduct can not be based solely on the need to avoid the statute prohibiting that
conduct itself, either as applied or on its face
- (ex. need to run the red light because the statute prohibiting red lights is undesirable)

- court decides if established facts (by jury) establish a necessity defense

NY Penal Law vs. MPC
1. imminence. NY statute has an imminence requirement that MPC does not
i. Unger would not have a necessity defense under NY Penal Law, since there was no
imminence
2. law precluding choice of evils. under both NY and MPC, choice of evils (duress/necessity)
defense cannot succeed if the issue of competing values has been previously foreclosed by
a deliberate legislative choice
i. ex. if a provision of law deals with the situation presented

‣ choice of evils defense is to help the legal system deal with special situations that
legislature did not think of but could not have intended to exclude, given the competing
values to be weighted

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XVI. DURESS
State v. Toscano

• chiropractor charged conspiracy to aid in insurance fraud after threats of harm in dark alley
Holding
3. the defense of duress applies, except to murder, when a person of reasonable firmness in
the defendant's position would have been unable to resist the threatened use of unlawful
force, and the defendant actually does not resist it
MPC
4. MPC and NJ take a focus on whether the standard can be followed by ordinary members of
the community
i. consider the particular defendant's tangible factors like size, strength, age, health
a. do not consider intangible factors like matters of temperament
ii. no requirement that the threat is of death of serious bodily injury, immediate harm, or that
the harm be aimed at the defendant
a. these factors are important but not necessary
5. jury could have found the threats to Toscano would have induced reasonable fear in him
i. jury is to decide whether a person of reasonable firmness like Toscano in his position
would have been expected to refuse to cooperate or call the police
6. duress is not a defense to murder
i. it is under the MPC
United States* v. Fleming
American POW accused of aiding enemy, threatened with deadly torture if he didn't cooperate
Holding
1. the possibility of death (by starvation or grueling conditions tantamount to torture) are too
remote to constitute an immediate threat of death
Against
1. imminence requirement may be too harsh
MPC
1. would come out differently: imminence is not required, but the necessity must be reasonable
United States v. Contento-Pachon*
gangster threatens defendant's family unless he smuggles cocaine, police are corrupt
Holding
1. jury could find he had no recourse and that he reasonably believed failure to cooperate
would result in immediate consequences
2. immediacy and inescapability of threat are crucial elements, but opportunity to escape must
be reasonable

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3. he had reason to believe failure to cooperate would result in immediate consequences, and
jury could find he had no recourse because the police were corrupt and that having to
relocate with his family in one day was not a "reasonable" recourse
Against
1. JJ: may be used by every drug courier, incentivizes dealers to threaten the couriers so they
can be exculpated
For
2. maybe all drug couriers should have this defense, if they are really being threatened
MPC
1. would come out the same way: imminence is not required, but the necessity must be
reasonable
Regina v. Ruzic* (Canada)
same facts as Conteto-Pachon
Holding
1. court disregards the immediacy requirement
MPC
1. agrees
INTOXICATION
People* v. Hood
drunk man being subdued grabs cop's gun and shoots him in the leg
Holding
1. intoxication is a defense in specific intent crimes but not in general intent crimes
i. intoxicated individuals cannot appreciate the consequences of their actions, but can still
form simple intent (i.e. intent to grab the gun and shoot)
For
2. assault with a deadly weapon is a general intent crime, since it only proscribes a specific act
i. specific intent crimes proscribe the act only if it is done to achieve some future
consequence
3. in this case, do not consider intoxication because defendant only committed a general intent
crime
Against
1. the specific intent distinction is a brute compromise and not a clear distinction
State* v. Stasio
intoxicated defendant convicted of assault with intent to rob
1. whether the crime a is specific or general intent crime is not does not determine whether to
allow an intoxication defense

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i.

specific intent crimes exists to distinguish crimes where an intoxication defense is
allowed
a. crimes with higher penalties are more likely to be specific intent crimes
b. goal-directed behavior: crimes where causing a result or further act is an element of
the crime Stasio
2. the criminal function of criminal law is to protect society from dangerous behavior, and this
should be the guide to allowing intoxication
3. limits intoxication evidence to very limited circumstances:
i. to demonstrate there was no premeditation
a. intoxication can be used in murder cases to prevent first-degree murder charge
ii. to show defendant did not participate (ex. was in drunker stupor, so could not have
robbed or raped)
iii. to demonstrate a mistake
4. dissent:
i. would hold people liable for offenses requiring intent that they never possessed
ii. unclear how public is less endangered when defendant commits the act because of a
drunken mistake, compared to equally intoxicated people that commit the same acts
without intent
iii. the defense is hard to establish, which will prevent it from being too exculpatory and
dangerous to the public
a. merely drinking lots of alcohol is not sufficient
b. must show that requisite mental state was totally lacking, which is rare
Montana v. Egelhoff
1. it is permissible to not allow intoxication its normal evidentiary weight (ex. determining
whether defendant had purpose when he killed the victim)
For
1. not unique for an evidentiary rule to stop relevant evidence
Against
1. stops evidence central to the question of mens rea
Regina v. Kingston (UK)
defendant drugged so that he would sexually assault a boy lured by a third party
Court of Appeals
Holding
1. involuntary intoxication negates mens rea
For
2. if defendant's criminal inclinations are unleashed only because of the clandestine drugging
by a third party, then the restraint required by law is involuntarily removed and defendant
does not have criminal liability
3. it would not serve criminal law to hold the person liable

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i. criminal law is to inhibit criminal inclinations, not to erase them
4. having pedophiliac inclinations is not illegal, putting them into action is - if they are put into
action only because of the drug then he should be acquitted
House of Lords
Holdingjs
1. involuntary intoxication dose not negate mens rea
For
1. spurious defenses
i.
2. difficulties of proof
i. jury has to determine whether defendant was going to do the act anyways
ii. identity of the drug might be unknown, and pharmacologists have to describe effects of
the drug
Against
1. could be cabined in the same way as duress, by not allowing the defense if the defendant
was reckless/negligent in bringing about the intoxication to avoid spurious defenses
Pears v. State
defendant warned by police he was too drunk to drive, ends up killing in crash:
1. murder conviction affirmed
2. prior warnings can create actual awareness in a drunk person
For
3. "extreme indifference to value of human life" satisfied because warnings made defendant
abundantly aware of the dangerous nature of his driving so his actions were not merely
inadvertent
People v. Watson
drunk driver convicted of murder; defendant drove his car to the bar, then got drunk
1. defendant had requisite awareness because he knew he was going to drive later and was
aware of the dangers of driving drunk when he decided to get drunk
Against
2. vast majority of people who drive drunk and get home fine, death is not a probable result of
driving drunk

Meaning of Mental Disease of Defect
United States v. Guido*
doctors change their insanity diagnosis without changing medical findings because they
originally thought disease meant psychosis, not the inability to distinguish right and wrong;
prosecution alleges fraud

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1. mental disease required by M'Naghten rule is a legal, not a medical, concept
i. does not require pscyhosis, anxiety neurosis doctors found qualifies as a mental disease
2. court does not define mental disease, but says no fraud because of the ambiguity in the
definition
3. cases hold that it cannot be a "personality" disorder or an emotional disorder
i. does not include battered wife syndrome, gambling disorders, PMS, postpartum
disorder, PTSD, sadism, etc.
ii. getting rid of the behavioral prong invites accepting these syndromes and other
"personality or emotional" disorders
Psychopaths - Antisocial Personality Disorder
4. psychopaths know (verbal knowledge) that their activity is illegal but can't appreciate it
i. verbal knowledge is sufficient to defeat insanity under M'Naghten
ii. MPC §4.01(2) says mental disease does not include abnormality manifested only by
reported criminal or otherwise antisocial conduct
5. courts are divided on whether it is possible to distinguish psychopathy from recurrent
criminal behavior
i. State v. Werlien (defendant follows others like a child and cannot conform to law) - court
says his conduct goes far beyond abnormality manifested by repeated conduct or
otherwise antisocial behavior

Meaning of Wrong
State v. Crenshaw
man murders his wife he suspected of cheating, out of religious duty, and argues he was unable
to perceive his act was morally wrong - he also has history of mental problem
1. society's morals, not those of the individual, are the standard for judging whether one can
appreciate the wrongness of one's acts for the purpose of the insanity defense
i. otherwise defendants would always be exculpated
2. thus, the defendant insanity defense applies only if the defendant is unable to appreciate the
illegality of his act
3. applies M'Naghten test
Decific Decree Exception
4. some courts allow a special decific decree exception, where a defendant is legally insane if
his acts were ordered by God (not that he was merely following his religion
i. applies even if he can perceive acts illegality
Serravo
man deluded, thinking God told him to kill his wife

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5. wrong should refer to moral wrong
6. a person may understand that his act is illegal without the capacity to comprehend that it is
inherently immoral
7. a mentally ill person who has the cognitive capacity to distinguish between moral right and
wrong, but not legal right and wrong, should not have a defense because ignorance of the
law is not an excuse
Requirement
Clark v. Arizona*
• ∆ is a paranoid-schizo who shoots and kills an officer during a traffic stop, charged for

"knowingly and intentionally" killing the officer
• trial judge rules that ∆ cannot introduce evidence of mental illness to negate the mens rea,
only on his insanity defense
1. due process does not require consideration of evidence of mental illness on the element of
mens rea
2. evidence of probative value (i.e. to mens rea) clan be excluded if it is outweighed by other
factors such as unfair prejudice, confusion of issues, and potential to mislead the jury
3. mental illness evidence is unreliable, some mental diseases are dubious, and introducing
the evidence for evaluating mens rea can potentially mislead jurors
i. mental illnesses can be difficult to classify, and even when classified there is
disagreement in the scientific community on their effect ∆'s on ability to form mens rea
ii. jurors may perceive expert evidence as being more authoritative judgements on
defendant's mental states than warranted
4. of three categories of evidence that can affect mens rea, Arizona restricts ii, and iii
i. observation evidence - testimony of those who have observed Clark's actions, and of
experts that can analyze his behavior and what he was thinking when he fired the gun
ii. mental disease evidence - testimony, typically from psychologists, that Clark was
suffering from some sort of mental disease, claiming that his condition falls into a certain
category
iii. capacity evidence - evidence about defendant's capacity for cognition and moral
judgment (capacity to form a mens rea)
Dissent
5. Kennedy dissent:
i. rule prevents ∆ from presenting evidence central to his claim that he did not commit the
offense, and thus violates due process
ii. problems with jury confusion will always exist whenever alternative theories are
presented, and do not justify exclusion of crucial evidence
iii. permitting evidence of mental illness for insanity defense does not compensate for
excluding it from contesting mens rea
a. the latter goes to whether he committed the crime at all, the former only to excuse

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b. there are different standards of proof
iv. ruling allows defendants to show that they were insane at the time of the offense, but not
to prove that they simply did not commit the offense
a. decision totally prohibits defendant from contesting the charged offense
CHANGING PATTERNS OF EXCUSE
Robinson* v. California
• statute makes it a criminal offense for a person to be addicted to the use of narcotics
• police officer testifies that Robinson had scar tissue, discoloration, and needle marks
consistent with frequent use of narcotics
1. it is unconstitutionally cruel and unusual punishment to make a disease a crime because ∆
has no control over that status
i. being an narcotics addict is a disease
2. statute punishes a mere desire to commit a criminal act (take drugs)
3. JJ: problem of proving that ∆ is a drug addict, that ∆ is still addicted (have to first define
addicted)
4. punishing mothers who give birth to crack babies: necessity defense is available because
withdrawal could cause a miscarriage