Criminal Law Outline

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Criminal Law Outline

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The Golden Dolinko
Transcribed by §3, 4, Class of 2006
In the first class, we talked about killing out of “necessity.” Is it all right to kill one person if it
will save the lives of three people? The judge in Regina v. Dudley and Stephens says that you
can’t divorce law from morality.
3 theories of criminal punishment:
Rehabilitative theory
Deterrence theory
Retributive theory
Actus Reus (culpable conduct)
Principle: criminal law depends on voluntary acts. There is a presupposition that people aren’t
punished for involuntary acts.
Definition:
--VOLUNTARY acts are movements of the physical body—cannot be punished for thoughts or
intentions. This includes omissions, conscious movements, and habitual movements.
--INVOLUNTARY acts are bodily movements not in control of the conscious mind. (narrow
def.) As defined by the MPC:
 Reflex of convulsion
 Movement during unconsciousness or sleep
 Conduct during hypnosis
 Other movement not an effort of person
Look at elements of a crime?
Martin v. State—the court found that defendant not guilty of public drunkenness because he did
not voluntarily appear in public (police dragged him there). But is the court being sloppy? Looks
at the statute prohibiting public drunkenness as a whole rather than at the component parts. If
looked at the component parts, would find that Martin did not voluntarily appear in public, but
once there, he did voluntarily act in a certain way. (The MPC looks at each elements—under Sec.
2.01, “liability is based on conduct which includes a voluntary act.)
So conduct necessarily implies a mental component to determine whether the conduct was
voluntary. Was it conscious, was there choice, was person awake?
Unconscious action:
People v. Newton—guy was pulled over by police, shot in stomach. Claims he was unconscious
when he shot a police officer. Prejudicial error that jury did not instruct on defense of
unconsciousness? Yes—this is a complete defense to charge of criminal homicide. (Only needs to
raise reasonable doubt that he was unconscious. Prosecution must prove the voluntary act was
done. Here only need some evidence of unconsciousness to show that could have had a
reasonable doubt and needed jury instruction.)
When found liable for unconscious actions:
1) There is no defense when the unconsciousness was from drinking too much alcohol. This is
because the unconsciousness was self-induced.

2) People v. Decina:
Was driving a car and became unconscious due to an epileptic seizure. Killed someone and
prosecuted for vehicular homicide. He knew that he could be rendered unconscious at any time
and he drove the car anyway. A reasonable person wouldn’t have done this. (But couldn’t apply
this reasoning to the Newton case because can’t trace causation back too far.)
So there is a difference between actions done mistakenly, accidentally, under duress, and those
done because of unconsciousness, reflex, asleep. In the first category, talk about mitigating
responsibility and in the second, no human action occurred at all.
Also in comparing Martin and Decina, consider the issue of “time-framing” in deciding when to
consider a voluntary act.
Omissions:
Is there a legal duty of care:
No criminal liability for a moral obligation. Why? Practically it is hard to determine the mens
rea. Morally, there should be a difference between those who voluntarily kill and those who omit
to help. Also maybe less incentive to help if know will be responsible.
Exceptions to the no-liability rule:
 Statutory duty creates a duty to act. E.g. driver must stop car at scene of accident,
parents must give food to their children.
 Status relationship. Common law duty to act in spousal relationship, parent/child
 Contractual obligations. When break an express or implied contract
 Omissions following an act. In some circumstances, even if no liability for the act.
 Creation of a risk. If negligently injure someone, cannot omit to help them. Or do a
criminally liable thing to create the risk. Jones v. State where guy raped girl and she
jumped in a river and he didn’t try to save her.
 Voluntary assistance. If voluntarily assist and seclude someone, then have a duty to
care for them. People v. Oliver where took drunk guy from public place.
 When the potential for harm is so great (?).
Pope v. State
Issue: Is “good Samaritan” woman liable for child abuse where took in a mother and child and
then did not help the child when the insane mother beat it?
NO, not guilty of child abuse because insufficient evidence to prove that she was responsible for
supervision of the child. The statute lays out certain classes of people that can be responsible and
Pope not one of them. Hospitality not the same as voluntary assumption and seclusion.
Maybe a moral obligation, but no legal one. Role of criminal law is not to enforce
morality (is this really true—incest, gambling). If she was in a state with Good Samaritan
statutes, does her first act of kindness wipe out her omission?
HYPO: You stand there and watch a child drown. This doesn’t fit into any legal duty of
care. Why?
1) line drawing problems between when someone is morally vicious and when they
really just weren’t aware

2) how far will an omission that causes death extend? (starving beggar whom you didn’t
give money does).
Jones v. United States
Infant was placed in Jones’ house. Facts conflict as to whether mother was also in house, mother
was paying her. A legal duty of care arises when
a) Statute imposes it
b) Relationship like parent to child
c) Contractual duty to care for another
d) One has voluntarily assumed care of another and has prevented others from helping.
Based on facts possibly could have been c or d, but problem was that jury did not instruct on the
necessity of finding a legal duty of care of child.
MPC:
In general, the traditional legal position and the MPC are similar. MPC finds omission where
 there is a penal statute specifically requiring action
 or a duty to perform the act is otherwise imposed by law (tort, civil liability).
MENS REA
General—overall wicked mind, generally morally blameworthy state of mind.
Specific—state of mind in relation to specific crime (elemental meaning).
Definitions of words:
 Intent: a person has intentionally caused the social harm of actus reus when (1) it is
his desire (conscious object) to cause the harm (2) he acts with knowledge that the
social harm is virtually certain to occur as a result of his act. (Transferred intent
doctrine—if meant to kill one person and accidentally killed the other, still liable).
 Motive: does not negate intent. Relevant in relation to specific-intent crimes, claims
of defense, sentencing
 Knowledge: required of circumstances, material elements
 Willful: can be synonym for intentional or an evil motive
 Negligence: failure to do what a reasonable person would, based on (1) gravity of
harm that would foreseeably result from D’s conduct (2) probability of harm
occurring (3) burden to D from desisting from conduct. Criminal negligence imposed
when there is a gross deviation from standard of care (substantial and unjustifiable)
 Recklessness: actor disregarded a substantial or unjustifiable risk of which he was
aware.
 Malice: acts with malice when intentionally or recklessly causes social harm.
(Cunningham)


General intent crime: the doing of a prohibited act. If you voluntarily do the act, it is
assumed you intended to.




Specific intent crime: an intent to do some further act beyond. (burglary, theft) Or
where must have knowledge of certain circumstances (so statutory rape is a general
intent crime because D doesn’t have to have know the real age).
Criminal negligence: without awareness of facts, but with gross lack of care

Regina v. Cunningham (1957) 205
Cunningham needed money so he broke a gas meter. The gas seeped into the next home and
asphyxiated Mrs. Wade. Judge gave the wrong jury instructions on definition of malice. “Malice”
does not merely mean a “wicked” state of mind. Appellate court finds that “malice” means either
 An actual intention to do the particular kind of harm that was done OR
 Recklessness—D has foreseen the harm and then done it anyway.
Regina v. Faulkner (1877) 207.
D convicted of maliciously setting fire to a ship. He went to steal some rum and lit a match
which set fire to the ship. Judge instructed that should be guilty because the ship caught fire
because of an act done in the course of a felonious operation. No, erroneous.
 Act must be intentional and willful OR
 Recklessness
MPC:
Takes an elemental approach to mens rea—each element of a crime must have a culpable state of
mind.
4 levels of culpability:
1) Purpose—the action committed or the result caused is not purposive unless it was the
actor’s conscious objective to perform the action or result. (This is necessary for cases
of “specific intent.”) Need knowledge of external circumstances.
2) Knowledge—Actor is aware that his actions are illegal or illegal result is “practically
certain to follow from his conduct.” Need knowledge of external circumstances.
3) Recklessness—involved conscious risk creation. Awareness is of risk, which is
probably less than substantial certainty. Pertains to action, result, circumstances. This
depends on how substantial and how unjustifiable the risk is.
4) Negligence—distinguished from the others in that it does not involve a state of
awareness. A person is negligent when he “inadvertently creates a substantial and
unjustifiable risk of which he ought to be aware.” Like in recklessness, the risk must
be substantial and unjustifiable. Whether he ought to have been aware of it depends
on whether in the circumstances a reasonable person would have exercised care in the
situation (given degree of risk, purpose of actor’s conduct, circumstances known to
him).
Purposely
Knowingly

Conduct
Conscious
objective to
engage in act
Aware that
conduct is illegal

Circumstances
Knowledge of
circumstances
required
Knowledge of
circumstances
required

Result
Standard
Conscious objective Subjective
to cause the harm
Aware that illegal
Subjective
result is “practically
certain to follow
from conduct”

Recklessness Requires
(awareness of awareness of a
a risk)
risk and
conscious
disregard of it
Negligently
When
(no state of
inadvertently
awareness
creates substantial
needed)
and unjustifiable
risk of which he
ought to have
been aware

Consciously
disregards
substantial and
unjustifiable
risk
Same

Consciously
disregards
substantial and
unjustifiable risk

Subjective/
Objective

Same

Objective

The required mental state must be found for each element of a crime. The four culpabilities are in
a hierarchy. If no specific culpability stated in statute, then it is recklessness or higher that is
required.
3 elements:
 Conduct
 Circumstances – require culpability, or strict liability element?
 Result
If no mens rea mentioned, recklessness at the least required.
If statute only mentions culpability in relation to one part of crime, it is taken to apply to all
elements of the statute (depending on how it is written).
HOMICIDE
1) MURDER: homicide with malice (aforethought)
Malice: one of {several mental states} & NOT {defenses, e.g. provocation}
The mental states the constitute malice:
 intent to kill: one intends the natural consequences of their actions (includes
knowing something will cause death even if that is not the goal). Or deadlyweapon doctrine. Once find intent to kill, look at premeditation to see if 1st or
2nd degree murder.
 intent to inflict great bodily harm: if intend to inflict the harm, death has been
caused with malice. What counts as GBH—not unanimous. Usually it is lifethreatening or deprives person of use of limb etc.
 depraved heart: an extremely reckless disregard for the value of human life.
So indifferent that person “as good as” killed the victim. (dispute as to
whether person has to be aware of risk of death—usually does.) (Usually 2nd
degree murder).
o recklessness—conscious awareness of risk
o degree of risk—substantial and unjustifiable
o degree of disregard of the risk



(The intention to commit a felony during the commission or attempted
commission of which a death results.)
Degrees of murder: defined by statute
 First degree murder: willful, deliberate, premeditated. [PA model: 1. morally
heinous (poison, lying in wait) 2. premeditated 3. Killings that take place
during certain enumerated felonies.] Premeditated killing—those where
intent to kill formed with reflection, deliberation, reasoning, or weighing.
o Commonwealth v. Carroll (PA, 1963)
Husband and wife lying in bed, having an argument. Wife was saying
mean things, had abused children. Five minutes later husband picked up
gun and shot her. Court ruled that no time is too short to establish
premeditation. Trier of fact decides whether there was premeditation (so
meaning behind distinction is irrelevant). Time doesn’t matter if it was
intentional. Also D’s psychiatric evidence is weak—this is for the trier of
fact to decide.
o People v. Anderson (CA, 1968)
Guy stabbed 10 yr. old girl numerous times, some stab wounds fatal and
others not. Only guilty of second degree murder—interpret premeditation
like one would expect to be in the dictionary (reflection, weighing of
alternatives, planning).
a) planning activities (post murder activities can indicate this)
b) prior relationship (that indicates motive)
c) “exacting” method of killing (to show preconceived design)
Must have evidence of all three, very strong evidence of (a), or evidence of
(b) plus (a) or (c). (No longer completely necessary).
Here there is no real evidence of planning, no relationship that would imply motive, and method
of killing in it3self does not indicate that there must have been a premeditation of killing. So 2nd
degree murder.
Second degree murder: all others, depends on state.
Policy: Why is premeditation the dividing line? Is it correct to punish a person who
premeditated the murder more than one who killed on impulse because the one who premeditated
the killing is more dangerous (deterrence)? No or Yes because if can plan better, can escape.
The idea is that the “deliberation” requirement of 1st degree that separates it into cold-blooded v.
hot-blooded killing — so if plan it more wicked (retributionist). In leaving it the jury, does
Carroll really just allow them to pick the most heinous crime? Is Anderson test not as good
because it doesn’t do this?
2. Manslaughter: homicide without malice
 Voluntary: intentional killing committed in a “sudden heat of passion” because of
“adequate provocation” — otherwise would be murder. (need not involve the
intent to kill, though it usually does. Intent to inflict GBH is enough or depraved
heart.)
 Involuntary: gross negligence / recklessness without depraved heart. An
unintentional killing that is the result of an act lawful in itself, but done in an



unlawful manner, without due caution. Aware that conduct is risky, or should be
aware that it is.
o Commonwealth v. Welansky (owner of a nightclub that caught fire)
o State v. Williams (Indian couple who failed to get medical attention for
baby — is this gross negligence?)
(Killing that occurs during the commission of a crime that is less than a felony)

Provocation
Requires that 3 elements be met: with a causal connection between them — provocation must be
the reason for the killing.
 the killer acted in the heat of passion: Any intense passion.
 Resulting from adequate provocation: At modern law, what constitutes
adequate provocation is for the jury to decide. It is what would inflame the
passion of a reasonable man so much that he would be tempted to kill.
Provocation is sufficient to mitigate an intentional killing from murder to
manslaughter if it would make and ordinary man incapable of reflection of
judgment — acting on passion alone.
o What Qualifies as provocation:
 substantial physical injury or assault: not if D was at fault for
stimulating the blow
 mutual quarrel or combat
 illegal arrest
 adultery with offender’s spouse
 if D mistaken as to existence of provocation but reasonably
believed it to exist
 if D intended to kill provoking party but killed someone else by
accident or because thought that person was the provoker (not if D
simply struck out an innocent third party)
 possibly when the target of the provoking conduct is a close
relative of D
 sexual advance by someone of the same sex
 if person elicited the provocation
o What does not qualify:
 Words alone do not constitute adequate provocation. Though this
rule is being relaxed (informational as opposed to insulting words).
Girouard v. State: Made the rule. Wife was verbally attacking D
so he stabbed her. Reaffirms the traditional rule that must be
provocation that would enrage the reasonable person so much that
he would be tempted to kill — no case by case basis. Words are
not enough. State v. Shane: guy killed his fiancée after she
admitted to sexual infidelity. Words are not enough. She was not
his wife; he did not walk in on the act.
 Not if there was racial antagonism.
 Not if the person killed was not the source of provocation.
o The subjectivization of the ordinary man objective standard.

Before sufficient cooling time: this is now left to the jury to decide.
Departures from the traditional rules:
1. Maher v. People: D appealed because evidence was not admitted to trial that his wife and
V had an affair. This was because D did not actually see them do it. The Court rules that
the evidence should have been admitted. Traditionally the judge decided what
constituted adequate provocation and cooling time as a matter of law. This case says that
it is up to the jury to decide both, the judges just define what “legally adequate
provocation” and other means (would have moved reasonable person to do it). (Not all
courts do this; some only let jury decide on cooling time.) The dissent: what if they
didn’t actually commit adultery? Why punish the innocent (provocation as excuse (focus
on D’s mind) v. provocation as justification (focus on V’s mind)).
2. Director of Public Prosecutions v. Camplin: 15 year old boy was sodomized and
ridiculed. He killed guy with a frying pan. Would the objective test be about a
“reasonable boy” or a “reasonable man”? Court says you should build into the test such
factors as age or gender. Moving toward subjective test. (But is this biased toward
women because men are though to be more easily provoked to violence?) Idea is that
you want to build in things that will affect how provoking a situation is, but not “bad’
characteristics like inability to control one's self. In a later case of clinical depression,
that arguable affects both, Court said no.
3. People v. Casassa: (and MPC to less extent though) Meant to get rid or “words are not
enough.” D killed a lay in his apartment building who he was obsessed with. Issue: did
he act under the influence of “extreme emotional disturbance” (N.Y. statute where
cooling time is ok if there was a mental trauma affecting the mind over time.) Court rules
that this cannot be decided from subjective viewpoint of D. There must still be a
“reasonable” reason for the EEED. Asking the jury to decide this — basically whether
they can feel empathy for the defendant. A transformation of the provocation defense:
Traditionally: a person will not be guilty of murder because he reacted as a normal
person would. Casassa: a person is not guilty of murder because they reacted different
from a normal person.
MPC: the reasonableness of the action is to be determined from the viewpoint of a person in the
defendant’s position under the circumstances as the defendant believed them to be.


involuntary: gross negligence / recklessness without depraved heart. An
unintentional killing that is the result of an act lawful in itself, but done in an
unlawful manner, without due caution. Aware that conduct is risky, or should be
aware that it is.

UNINTENTIONAL KILLINGS
 Conduct requirement: action caused death
 Mental requirement: gross negligence (an exaggerated departure from what the
normal person would do) or recklessness
How to decide what is gross negligence:
 What is the magnitude of the risk? How likely to come about?

 Balance this against the reason for creating the risk.
*HYPO: Where driver was told brakes would fail but forgot to get them fixed. This is not
enough — need an exaggerated departure from what the ordinary person might do — hear the
brakes screeching before the accident.
Also simple negligence is enough when accused killed using a deadly weapon. In State
v. Barnett, the deadly weapon was a car. (not usually considered this way).
Commonwealth v. Welansky: Welansky operated a nightclub. A boy at the night club went to
check a light bulb and lit a match to see. A fire started. 491 people died. Exits were blocked or
locked. Welansky is prosecuted and convicted at trial of involuntary manslaughter.
 Conduct element was the omission to exercise his duty of care
 Mental element: negligence (unaware of the risk that omission created) or recklessness
(aware of the risk but took the risk anyway)?
Mass. state law: There is no criminal negligence so recklessness is needed. But they state that if
he should have been aware of the risk and wasn’t then he is guilty. So they are convicting him of
negligence anyway. Example of confusion of what is required to go beyond civil negligence.
State v. Williams: Husband and wife did not get their child medical attention. Washington law:
the statute required only “ordinary negligence.” (not any longer). Would this case be considered
gross negligence anyway?
Note: Says that ordinary negligence must be the proximate cause of death. The conduct element
requires this.
Note: Should they be held to objective test of reasonable person if they are dumb? (same
controversy as for provocation). Court says yes.
Note: Can their punishment even be justified by the deterrence or retribution theories?
(MPC does allow exceptions but it is not as subjective as for provocation).
UNITNEDED MURDER (Second degree murders: DH)
Recklessness plus malice.
Commonwealth v. Malone (1946)
Two kids playing Russian Roulette. One kid put gun to other’s head and pulled trigger. He did
not expect gun to go off.
Note: Court finds that “malice” needed to distinguish murder from manslaughter (what reckless
killing usually is). Malice: a general evil design of a wicked heart. “Malice” is met when
someone commits an act of gross negligence for which he must reasonably anticipate that death
to another is likely to result . . .” Here Court says the death was “likely” to result because the
gun had a 60% chance of going off. So a gross form of recklessness with a depraved and wicked
heart. I difference to human life. (like way of finding gross negligence). The bottom line is
whether here was willingness to create a risk of death for a really bad reason. (Guns on
table hypo). Hard to tell if gross negligence was really enough — Court writes as if he was
reckless.
(MPC approach more formulaic — Sept. 17).
United States v. Fleming (1984)
Drunk driver driving really fast into oncoming traffic.
 High degree of risk and no good reason for taking the risk.



Was he reckless? — As long as the jury can infer that he was aware. They will infer he
was aware because it is such a gross deviation and because they can’t consider the fact
that he was drunk.
(MPC says you have to have actual awareness of the risk of death and CA law).
FELONY MURDER
A killing will be murder if it was caused with the intent to commit a felony.
People v. Stamp (1969): D burglarized V and V died of a heart attack (had a heart condition). D
is guilty of murder (1st degree).
Rule: Take your victim as you find him.
Limitation: The death must be a direct causal result of the felony. But it need not be foreseeable
result.
Regina v. Serne (1887)
Guy set fire to his house and his sons burned to death. Not guilty. Because the felony was not in
itself inherently dangerous to life? Not an accurate depiction of law.
Note: felony-murder does not add much to pre-existing law? Really depraved heart: awareness
of likelihood of causing death (recklessness) with an extremely bad reason (to commit a felony).
Felony-murder is disliked. Why?
Inconsistent with law (Faulkner — idea that can’t be guilty for something didn’t have mens rea
for.)
Deterrence, retributionist. There is only a tiny percent of murders that are done during the
commission of a felony. Some courts require normal meaning of malice; it is just elevated to 1st
degree murder when done during felony (People v. Aaron (Mich.)). Though most courts don’t do
this.
Limitations on the rule:
 The felony must be inherently dangerous
o “inherently” dangerous: felony is always dangerous to human life in the abstract
People v. Phillips CA (1966)
Chiropractor swindled money out of parents by convincing them to use his help instead of have
surgery for daughter with cancer of the eye. Girl died. Grand theft was the felony. Should have
been no instruction on felony murder because grand theft is not a felony inherently dangerous to
human life. (this is a limitation in most states.) D is later convicted of depraved heart.
Note: Court decides if a felony is inherently dangerous by looking at it in the abstract. Court
looks at the nature of the crime, not the way it was committed (circumstances of the felony i.e.
here it was a medical fraud so arguably more dangerous). CA doesn’t like felony murder so
picks the view that is most restrictive. (Most states look at the circumstances.).
Critique: By failing to look at the circumstances, Court does not carry out goal of the f-m
doctrine, which is to deter the dangerous commission of felonies.
Note: Court says that need to retry because possible that D didn’t’ have to be convicted DH:
even if he knew was defrauding them, he might not have been aware that he was risking the
girl’s life (so no conscious disregard for life) (though under Fleming maybe trial court would
infer it — as they did).

People v. Satchell CA (1972) D convicted of the felony of possessing a sawed off shotgun when
an ex-felon.
Held: No Felony murder because possession of a shotgun is not inherently dangerous to human
life in the abstract.
People v. Patterson CA (1989) D furnishes cocaine to a woman who dies. He is in violation of
Health and Safety Code which makes it illegal to transport, etc., a large number of different
drugs. The earlier courts found not guilty because were looking at the whole statute. Court says
this is too broad. Should only have looked at the element of furnishing cocaine.
Note: An act is inherently dangerous to human life when there is a high probability that it will
result in death. (same as for DH). 3 judges disagree — this will preclude any convictions. It
should be a substantial risk of someone getting killed. (In Hanson these mean the same thing).
The other 3 judges agree with the “high probability” standard but do not think that the felony
considered should have been narrowed.
o Felony need only be dangerous as committed: look at the facts to see if they involved a
significant risk.
 The felony must be independent (the “merger” rule): felony murder rule can only be applied
where the felony is somewhat independent of the killing.
Critique of felony murder: No room for special defense like provocation, because it only
applies to murder. So not to a felony, even though the inherent dangerousness of the felony is
supposed to be the implied malice. CA trying to avoid the extreme line of thought that every
manslaughter is inherently dangerous and results in death and so is felony murder.
People v. Smith CA (1984) D beat up her 2 year old daughter. The daughter fell and hit her
head and died. Can felony child abuse support conviction of 2nd degree murder on f-m theory?
Court looks at 3 precedent cases:
 People v. Ireland: felony was assault with a deadly weapon where D shot his wife. Court
said no felon murder where the death is based on a felony which is an integral part of the
homicide and included in fact within the homicide. (Because wouldn’t have to look at mens
rea).
 People v. Wilson: D entered wife’s apartment and shot her. Where felony is burglary with
intent to assault with a deadly weapon — no felony murder. (This is rejected by N.Y. in
People v. Miller: burglary is more dangerous indoors. But if this really mattered,
manslaughter should be f-m because it is so dangerous. But N.Y. law explicitly lists burglary
as a felony that can trigger f-m).
 People v. Burton: D killed during an armed robbery. Court held that robbery was sufficiently
independent for f-m even though the felony was integral to the homicide. You need to go
further and look at the purpose of the conduct — whether there is an independent felonious
purpose to the conduct or single conduct with single purpose (as in Ireland).
Holding of Smith: The child abuse was of the assaultive variety — purpose of the conduct was
the assault that resulted in death. So it merges, no f-m.
Contrary holding: People v. Jackson: There is no merger where D beat his son to death but had
the independent felonious purpose of bending child’s will to obedience. Dolinko says this is
wrong because it cites the motive as the felonious purpose. Disciplining a child is not an
independent felonious purpose. (?)

People v. Hanson CA (1994): D shot a gun at guy’s house and killed daughter. Can use f-m
doctrine. Should have decided the other way because (1) shooting at the house was included in
assault, (2) there was no independent felonious purpose. Court rejects both rules.
New Rule: the felonies that can’t be used for f-m are those that would turn all felonious assaults
into murder without inquiry about mens rea (like assault) and would subvert legislative intent
(that homicides should be graded according to mens rea). Court says that shooting a gun at a
house door does not result in a lot of murders. So rejection of Ireland, importance of “integral
part of homicide” – says that it does not extend beyond assault. Does not want to limit f-m so
much that inherently dangerous felonies are not punishable for f-m.
Problem: under Smith, most murders are not the result of child abuse either.
Note: dissent says it’s ok because he would have been punished on DH theory anyway.
 The felony does not merge if it involves an intention independent to the physical attack
on the victim
 More flexible test: whether no merger would so expand f-m as to frustrate the
legislature’s intent to provide for a meaningfully limited f-m rule
Criticism of felony murder and merger: there will always be a problem because felony murder
makes murder a strict liability crime while the rest of the law on murder is decided according to
mens rea. Unfair: guy who breaks into a house with intent to kill is not f-m while guy who
breaks in with intent to steal is murder (less culpable?)


What happens when the victim was not killed by one of the felons?
o Agency theory: the person who causes death must be one of the felons. This
theory focuses on the individual killer and says that the killer must be acting in
furtherance of the felonious plan. (majority view)
 State v. Canola N.J. (1977) D and three co-felons robbed a store. The
robbery victim shot and killed one of the co-felons. Can a felon be
convicted of the murder of another co-felon who was shot by the burglary
victims? Holding: Thought the NJ statute might arguable talk about
proximate cause, Court interprets it mean agency theory because the
modern trend is to limit f-m theory. So not guilty of f-m. Dissent says
felons should be liable for innocents who dies, but maybe not for death of
co-felon, since this might be “justifiable”
o Proximate cause theory: a death not caused by one of the felons is felony murder
when death was proximately caused by the felony – where it was foreseeable risk
of the commission of the felony to bring about the death that resulted. (Stamp
case exception where doesn’t have to be foreseeable if it is directly caused by
felony???)
 People v. Hernandez Interprets proximate cause. Here one police officer
shot the other. Court says not to look at who shot who, but the actions of
D. His behavior of trying to escape the police made death foreseeable
o Death of co-felon: it depends.
 State v. Williams: purpose of f-m is to protect the innocent. So f-m does
not extend to death of co-felon
 US v. Martinez: F-m does extend to death of co-felons because their lives
are not completely worthless and it serves as a deterrent functions.

o Issue of whether acts of a co-felon are in furtherance of the felonious intent
(brought up later? P501)
Taylor v. Superior Court CA (1970): Robbery done by Smith, Daniels, and Taylor. Taylor was
getaway driver, Smith and Daniels went in store. Daniels was chattering insanely. Owner of the
store shot and killed Smith and hit Daniels. Can Taylor be prosecuted for death of Daniels?
 Prosecution is not for f-m (CA is agency theory). Taylor is charged by vicarious liability
with a combination of DH theory and accomplice liability. Smith and Daniels exhibited
DH conduct by their extra scary conduct of insane chattering. (In Washington, the mere
pointing of a gun was not enough) This is the provocative act doctrine – where a person
behaves in a way likely to provoke others to use deadly force
o (Under People v. Antick Taylor would not be guilty because Daniels essentially
killed himself. But the problem with this is that it depends on whether store
owner had a good shot – if she missed and shot a customer, Taylor would be
guilty)

MISTAKE
Mistake of Fact: Mistake of fact occurs when what D did was in violation of the law, but D was
mistaken about facts: if the facts were as he believed then to be, then what he was doing would
not have violated the law.
Examples:
 statutory rape (sex with underage person): D had sex with 16 yr old, he believed her to be
18
 D is driving at 70 but thought she was doing 55 according to her speedometer
 D shoots and kills what he thinks is a deer, turns out to be another hunter
Regina v. Prince (1875): Prince charged with taking an unmarried girl under age of 16 out of
father’s possession. Prince reasonable believes the girl was 18. Prince is convicted.
 Bramwell: (majority) applies to the older sense of “mens rea” as meaning a generally
guilty mind (because no language in statute as to mental state?). Even though Prince’s
mistake was reasonable, he is still guilty because his act was immoral (according to
community standards it was immoral to take a girl from her father regardless of her age).
Prince would have a defense if what he was mistaken about would not have been
immoral if facts were as he believed – e.g. he believed he had father’s permission when
in fact the man giving permission was an imposter. Critique: legality doesn’t mean
morality. He is imposing his view of morality on world. Also he ignores the degree
immoral acts intended by legislature – legislature only meant to punish for girls younger
than 16. Today: Bramwell approach alive in statutory rape where strict liability as to
age.
 Brett: (dissent) also applies the older sense of mens rea, but not in the sense of “morally”
guilty mind, rather sense of a “legally” guilty mind. Brett says that a mistake of fact is a
defense only if, were the reality to be like that believed by Prince, he would not be guilty
of any crime. If, however, it is a misdemeanor to take an 18 year old girl out of the
possession of her father, then Prince is guilty of the higher crime. Critique: Inconsistent
with Cunningham and Faulkner? – Where lacking mens rea for a higher crime, the



accused was not guilty of it, though engaged in criminal behavior. Difference because it
was a different crime? Today: a mistake only as to the grade of a crime is no defense
MPC: §2.04(1)(a): says a mistake is a defense if it negates some culpability state (mens
rea) this is required with respect to one of the elements of the crime (doesn’t matter if it is
a strict or general liability crime). Under MPC each element must have a mens rea of
negligence or higher (actually recklessness here). If jury found he was reasonably
mistaken, he couldn’t have been negligent. So not guilty because could not prove all the
material elements of the crime (failure of proof defense)

People v. Olson CA (1984): 13 yr old girl sleeps in family trailer. Is awoken when Garcia
threatens her with a knife to have sex with Olson. Olson tried for child molestation.
Rule: In CA, mistake about the age of the victim is a defense to statutory rape. But it is not a
defense for child molestation.
Rationale: (1) want to protect children under age 14 (2) a statute makes it possible to parole
people convicted of the crime when they were mistaken about the real age of the victim.
Dissent: strict liability is generally disfavored, and particularly when punishment of crime is
serious.
 Material v. Jurisdictional elements: jurisdictional elements do not require and mens rea.
E.g. the mail fraud statute – if used mail to commit a crime then in federal court, cross
state lines when chased by cops.
US v. Feola (1975): D’s were selling drugs and tried to rob the buyers. Buyers
turned
out to be undercover federal agents. The “federal officers” past was a jurisdictional element
– only used to better protect the officers in federal court.
So fact that D didn’t know
that were fed agents was no defense. (Bad application of this rule)
Critique: But the penalty federal assault statute creates greater penalties than the state
statute – because there is more punishment, this suggests that the element is part of the
crime
Strict Liability: crimes that require no mens read (a crime that has at least one element that does
not require mens rea)
Examples:
 Statutory rape: strict liability as to age of victim (Olson case: age of victim)
 Bigamy: as to whether you are married already (pg 244 – no defense)
 Felony murder: no mental element needed for murder
 Minor offenses like speeding, selling liquor to a minor, selling misbranded drugs (Here
legislative intent is that they would rather subject an innocent seller to a penalty than
expose innocent purchasers to the dangers of drugs. Need penalties for regulation)
Morissette v. US : Supreme court (1952)
Facts: D took bomb casings from US govt bombing range, believing them to be abandoned.
Convicted for a strict liability crime.
Holding: Court finds that state needs to show mens rea. Govt has to prove intent to steal. Why?
Reasoning: This was a matter of interpreting the statute to see if Congress intended it to require
mens rea. Court says to look at the flowing facts characteristic of strict liability crimes (public
welfare offenses):



Is this a relatively “new” crime (relatively recent statutory crimes aimed at protecting
public health and safety and welfare)? If not….
 If not, does this type of crime generally require mens rea?
 Is it a crime that carries relatively little stigma?
 Does it carry fairly light penalties?
 Usually such crimes can be avoided by using reasonable care
Here, the crime is not new, stealing does require mens rea, it has stigma, and has heavy
penalties (court doesn’t look at last issue)
US v. Staples Supreme Court (1994)
D was found in possession of an unregistered firearm (fully automatic weapon). D didn’t know
that gun had been made into a firearm.
Issue: Does govt have to prove that D knew the gun was fully automatic?
Holding: Yes
Reasoning: Court takes a different approach from the Morissette case.
 In Morissette the court looked at two different kinds of statutes and made a presumption
relying on the history of the type of the crime
 In Staples the court has a background presumption of mens rea to both traditional
common law offenses and new statutory offenses
o Mens Rea is required if Congress does not explicitly state that this should be a
strict liability crime
o Owning a firearm is otherwise innocent conduct so strict liability not appropriate,
because the person wouldn’t suspect a crime
o Does not look at factors in Morissette. Uses the penalty, stigma factors only to
support decision already made. This is a narrower view of strict liability.
State v. Baker (1977) p. 247
D convicted of speeding. He claims a defense as a result of his cruise control malfunctioning.
Issue: Even if an element of the crime does not require mens rea, you still always need a
voluntary act
 Here the court found that the voluntary act was that D turned on the cruise control in the
first place. His is distinguishable from a case where D’s breaks fail- bc the breaks are an
essential part of the car’s operation
 In Hill v. Baxter court did not find for D because D did not prove he “blacked out.”
U.S. v. U.S. District Court (1988)
16 yr, old porn star Court holds that D has affirmative defense as to the reasonable mistake of
age. Says legislature intended exceptions to promote justice... What more can a person do if
they’ve already taken ordinary, reasonable care? (Cruise control case), though not about
negligence…
BACK TO MISTAKE
Regina v. Morgan (1976) p. 320

4 D’s in RAF. Morgan highest in rank. He tells other three that they can go to his house and have
sex with his wife. He says that she will struggle but this is because she is kinky not because she
doesn’t want to have sex.
Issue: Can a defendant charged with rape be convicted even if the jury believes that the
defendant honestly but unreasonably believed that the victim consented.
Holding- Yes. Any mistake as to consent is a defense no matter how unreasonable. But the court
affirms the conviction because a jury instruction would not necessarily have affected the
outcome. A jury could not have found hat D’s believed she was consenting. Reasonableness isn’t
irrelevant, the more unreasonable the belief the less likely it is that the jury will believe the
mistake.
 Under the MPC: they would have been convicted. Mistake is a defense if it negatives
some culpability or mens rea,. Here it had to be reckless.
 Compare with State v. Kelly where D was not guilty of theft no matter how unreasonable
his mistake was . In Morgan Ds simply could’ve asked her if she was consenting so
negligent mistake in rape is wrong.
 PROBLEM: Under a truly subjective approach, D would be innocent where his state of
mind is that of a sexist pig who thinks women love to be forced.
 In America, reasonable mistake is a defense, and unreasonable mistake is not
General intent v. specific intent crimes
 General Intent crimes: a mistake of fact can only be a defense if it is reasonable.
Think of general intent as if it is a general sense of Mens Rea (guilty state of mind).
Unreasonable mistake is blameworthy so doesn’t negate general intent. Rape is a
general intent crime (Morgan doesn’t use this approach).
 Specific Intent Crimes: any kind of mistake is a defense, even unreasonable.
 MPC: does not distinguish general and specific intent each crime has elements. A
mistake is a defense if the mistake cancels out the required mental states.
Commonwealth v. Sherry
Doctors who after a weird night all have sex with a nurse
Rule: Mass and the rest refuse to accept a mere good faith mistake to exculpate the accused.
They leave open whether a good faith reasonable mistake as to consent of the rape victim would
be a defense. Point is that they must jury instructions about reasonableness.
MISTAKE OF LAW: traditional notion is that mistake of law is no defense.
Upholding the traditional rule
People v. Marrero (1987) p. 57 D prosecuted for unlicensed possession of a firearm. His defense
is that the statute exempts police officers from liability and he is a police officer.
Issue: Does D’s misreading of the statute in these circumstances excuse criminal intent?
Holding: NO. Court said he was not a peace officer within the meaning of the statute.
Reasoning: The mistake was reasonable though so why not allow defense? The fear that
everyone will claim ignorance. Justices are willing to sacrifice innocence of one for the benefit
of society.
But: States do say that in certain cases mistake of law is ok because doesn’t create the risk of
proclaimed ignorance. Here NY statute provides this exception (mistake is ok if based on an
official statement of law). But for no apparent reason, NY interprets this as the MPC.



MPC: Marrero would lose because under MPC mistake is allowed only if the statute
relied on was later determined to be invalid or erroneous. Here it was Marrerro’s
interpretation that was found to be erroneous, not the statute. Policy is against having
people question the validity of the law.
 Dissent: this affirmative defense should be allowed because the regulation did not intend
the statute to be read like the MPC
Distinction between different kinds of mistake of law
 Where person says, “I did not know that what I was doing was illegal,” Could mean two
different things.
o Direct mistakes of law: “ I knew what I was doing but I didn’t know it was
prohibited by law” (mistake is about the law they were charged with violating)
 Suppose LA statute that officials can’t take money from business involved
in LA. Here he says he didn’t know it was a crime but did know they were
doing business in LA. This is the kind usually meant by when we say
“mistake of law” to which traditional rule says it is not a defense most
clearly applies- mistake of interpretation of law person breaking, didn’t
know law existed.
o Collateral mistake of law: “ I didn’t know what it was that I was doing... that is,
I didn’t know my conduct had those features which make it illegal.”
 Suppose: The official knows it is illegal to take money from a business
but didn’t know that the business was involved with the city. So he didn’t
know he was engaging in illegal conduct.
 Note: This is often actually a mistake of fact but id treated like a mistake
of law. Weiss Case.
 Smith case: D damages some property in his apartment that he thought was his own.
However, the law says that if you improve the apartment, the improvements become
the property of the landlord. The legal matter he is mistaken about is who owned the
floor boards. So it is a collateral mistake of law because not about the law he was
charged with.
 Woods case: woman caught in bed with her “husband” and charged with adultery.
Her mistake is that she does not know of a VT statute that does not recognize ex parte
divorces. This is a defense, but courts sometimes do not recognize it (here Woods
was sent to jail).
o MPC recognizes collateral mistake as a defense (though any mistake is one as
long as it negatives a material element – failure of proof defense.)
 Policy is that not everyone will be able to raise a collateral mistake of law so no fear
of expanding too far.
Second traditional exception: where a direct mistake of law is permitted as a defense. Courts
will not use it as an affirmative defense, but will allow it as a failure of proof defense in some
situations.
Suppose: the statute on its fact requires awareness of its own existence for guilty.
 Cheek v US (1991) p. 265: D was convicted of willfully failing to file federal income tax
returns. He claimed he believed that he owed no taxes because the tax laws were
unconstitutional. (Defense allowed because put forward as failure of proof.)




















Issue: The statute requires “willfully,” so Court says that gov’t has to prove that D knew
of his legal duty to pay the taxes (“willfully” is in the statute because tax laws are
complicated and some people accidentally mess up). If Cheek really believed that he
didn’t have to pay, then no matter how unreasonable this belief, the mens rea for the
crime is negated. [Cheek’s defense that laws are unconstitutional doesn’t work.]
Holding: it was error for the court to instruct the jury to disregard Cheeks claimed belief
that laws did not apply to him (though more unreasonable belief, less likely jury will
believe it).
Liparota: interpreting the meaning of “knowingly” in the statute. Allowed direct mistake
of law based on statue.
Lambert v CA (1957) p. 274: D is an ex-felon arrested on suspicion of another offense
and is charged with violating a municipal statute forcing all ex-felons to register with the
police.
Unusual case: the decision is (1) constitutionally based (2) permits direct mistake of law
as a defense.
Issues: Extending mistake of law as a defense…where it violates the Due Process Clause
by not affording notice to defendant that she had to comply with a certain law.
Circumstances: where the conduct liable was “wholly passive,” no act was required, and
no circumstances to make one inquire about the law. So need actual knowledge of law or
proof that she probably had the knowledge.
Note: Why does Lambert base its decision to find a direct mistake defense on constitution
rather than on statute (like in Cheek and Liparota)?
o The statutes require mens reas as necessary element and here none.
o U.S. Supreme Court cannot decide question of state statutes.
Holding: Reason why it’s unconstitutional (violates due process because no notice):
o No awareness of legal duty.
o Statute penalizes pure omission
o Heavy criminal penalties for the omission
o No circumstances that should suggest duty or at least duty to injury
o No important social need behind the ordinance (?)
Dissent: All kinds of strict liability crimes will be found unconstitutional
But: Lambert only gets cited to distinguish it from other cases
o Where crime is to baby-sit when a felon: here the conduct is not an omission,
maybe this is a situation where you would know it is regulated.
o If action is buying food in LA – not an omission but other stuff doesn’t weigh
right.
o If go to Vermont where Good Samaritan laws are and watch a kid drown. It is an
omission and no circumstances because most states don’t have the law, but social
need distinguishes it?
Note: How would Lambert be decided under the MPC? (Dolinko handout on People v
Luther) It is unclear. But her mistake of law would be a defense because there is no
mens rea referred in the statute. So, it would have to be recklessness or higher. Since she
was unaware of the statute, she could not have been reckless.
Note: Two sections of the MPC conflict.

o §2.04(1)(a) makes ignorance of a matter of law a defense if it negatives the
culpability required to establish a material element of the crime.
o §2.02(9) says that knowledge of the existence of the law determining the elements
of the defense is not an element of such offense unless the statute or the Code so
specifies. §2.04(3) says that you can have a defense of mistake of law where a
statute held one thing that was later determined invalid.
o So if you follow either one exclusive, you will come to different conclusions.
Maybe need to combine them and look for legislative intent. Ie. The factors from
Lambert.
CAUSATION
This issue only arises for crimes that have a result element (usually homicide.)
Proximate causation v. But for causation
Proximate causation and foreseeability:
People v Arzon (1978) p. 551: Facts: Arzon started a fire on the 5th floor of a building. While
firefighters are fighting it, another independent fire breaks out on the 2nd floor. Fireman died of
smoke from combination of fires. Arzon convicted of depraved heart murder, felony-murder.
Holding: Arzon is convicted, rejection of but-for causation. HYPO: If the independent act had
been that the fireman fell off a ladder, this would not have been the proximate cause of death.
The difference is foreseeability. Here what needs to be a foreseeable is that D died as a result of
the fire. To establish proximate cause, one should look at the result and decide if it is foreseeable
regardless of the other events that occurred in the meantime. (Proximate cause = legal cause.)
 Why discard but-for causation for proximate causation? Problem is that there is usually a
big different between when defendant did have in mind or should have had in mind and
what really happened – would seem too harsh to hold them liable. E.g. defendant driving
5 mi over speed limit, earthquake hits and overpasses breaks off and kills passenger.
Satisfies “but-for”, but not proximate cause? Or under felony-murder if someone robs a
bank and on of the people kills another because hates him – satisfies “but-for” but too
harsh? So proximate cause wants it to be closely enough connected so not too harsh.
Proximate cause with a more stringent view of foreseeability:
People v Warner-Lambert (1980) p. 552: Facts: Corporations was on notice of a safety hazard in
its work place from explosive dust. The company had done nothing to remedy situation. The
factory blew up. Unsure of what exactly cause the explosion.
Holding: Not liable. There must be foreseeability of the immediate, triggering cause of the
explosion. (The precise chain of events that led from the conduct of death.
Note: Most Courts are closer to Arzon than Warner-Lambert about foreseeability. However, both
cases do agree that foreseeability is the important thing.
But for causation:
People v Acosta (1991) p. 548: Facts: D drove recklessly in a police chase. Police helicopters
assisting in chase collided due to negligent flying of one pilot.
Holding: But for Acosta doing the conduct he did, the people in the helicopter would not have
died (But for cause = actual cause). But opinion also talks about proximate causation and seems
to apply something like the Arzon foreseeability test. (What he is focusing on is that this death
did not come about in highly extraordinary way and so was foreseeable.)
 Where but-for causation causes problems:

o Concurrent causes – when two people cause same death independently. Doesn’t
happen often. If the question is, would the victim have died this soon? – there is a
problem because the conduct may actually prolong the victim’s life? (airplane
e.g.) Instead ask, had the defendant not acted, would the person have died at this
time, as he did? But then run risk of circular reasoning of causes. (?)
Where foreseeability is not necessary:
 In the Stamp case (heart attack during burglary – take your victim as you find him),
foreseeability was not required because the death was a direct result of the conduct.
Felony-murder does require that the conduct be the proximate cause of death, and direct
causation is always proximate causation. Use common sense to decide what is direct
causation.
Where foreseeability is not enough for proximate causation (INTERVENING ACTS):
 In the Campbell case, it was foreseeable that D’s conduct would result in death, but the
behavior did not cause the death (where he gave drunk, depressed guy a gun and
encouraged him to kill himself). Not proximate causation.
 HYPO: Buy tickets to Israel for sister, hoping that she will get killed by a terrorist. And
she is killed by terrorist. But he did not proximately cause her death.
 In bother situations, in between what D does and the death of V, there are intervening
events by other people (V himself, terrorists) who act independently of D. These third
parties who know what they are doing are held to break the chain of causation.
Stephenson v State (1932) p. 564: Stephenson kidnaps V, tried to rape her, bit her. She goes out
with henchman, buys poisonous pills, next day takes them on her own, and dies a month later.
Holding: The general rule that intervening conduct breaks the causal chain does not apply.
Stephenson rendered V mentally irresponsibly and her attempted suicide was the natural and
probable result of the way he treated her. Therefore, her behavior was not free and voluntary.
Problem: How far can you push this argument?
 What is V had killed the henchman instead? Is self-defense at odds with irresponsible
behavior?
 Is killing herself really foreseeable? Court does not say that it is the most likely way that
she could have escaped. Compare:
o Beech and Valade where V jumped out of a window to get away from her attacker
(yes foreseeable) AND
o Hypo of V who kills himself after being swindled from money, or the Aults who
made daughter shoot dog, but she shot herself (not foreseeable).
 Is Stephenson guilty because he is more wicked than the Aults? The worse D’s behavior
is, the more likely it will be found the proximate cause, and the more justifiable it will be
to assign criminal liability? (The MPC uses this approach – a consequence of S2.03)
MPC: §2.03 (p. 1138)
 Adopts the two part definition: Must be a but-for cause and a proximate cause. But does
not define proximate cause – leaves it a question for the jury.
 2.03(1): (a) but for causation
(b) any extra feature required (by code itself or statute) has to be there.
 2.03(2)(3): Spells out further requirements for proximate causation. (2) states extra
proximity for crimes defined as purpose or knowledge. (3) deals with crimes of
recklessness or negligence.

o (2)(a) & (3)(a) are specialized rules. Proximate causation arises when there is a
divergence between what actor wanted to happen and what actually happened, if
the result is to a different person or property OR it is less harmful than intended.
o (2)(b) & (3)(b) are general requirements about proximate causation. This is a
general version of transferred intent. No definition, leaves it up to a jury to decide
whether the actual result involves the same kind of harm as what D was intending,
AND the actual result is not too remote or accidental in its recurrence to have a
just bearing on activity. Critics upset because it is up to jury to decide how much
they dislike D. More atrocious D’s conduct is, the further causation will extend.
Are we really asking: is it fair to hold D guilty for this (causation aside).
 Application: Campbell case: where supplied gun to suicide guy and Court found the
suicide guy was the intervening act so no causation. Under MPC, Campbell would be
guilty because the actual result of his conduct did not differ at all from what was
contemplated. Also, HYPO – where give sister ticket hoping that she will go down on
the plane and it happens. Under traditional causation no murder. But under MPC hope is
a form of purpose. No diversion from result and purpose, so guilty.
INTERVENING ACT CONT
There is a general rule that the informed intervention of an independent person breaks the causal
chain. In the following cases, the prosecution argues that this general rule should not apply.
 General rule wins:
Commonwealth v Root (1961) p. 573: drag race between Root and V, V tries to pass Root on a
curve and crashed into an oncoming truck. Holding: The death was directly brought about by
other racer, so no liability. Note: There is a fear of equating causation in criminal cases to
causation in tort cases: causation is understood more narrowly in criminal law. Note: Root
represents a minority view.
State v McFadden (1982) p. 575: Drag racing case where drag racer is killed and passenger of
car he hits dies. Wants to convict McFadden for both deaths. 2 different theories put forward:
(1) accomplice liability, which works for death of innocent passenger, but not death of racer
because he killed himself. But in (2) upholds the theory rejected in Root.
Commonwealth v Atencio (1963) p. 577: Russian roulette played between 4 guys; victim takes
gun, pulls trigger and dies. Holding: Atencio caused death. NOTE: This is rare: here criminal
law extends liability further than tort law would. In tort, the contributory negligence of V would
break the causal chain. Note: here encouragement, cooperation is the proximate cause – how far
can we push the theory? Problems (1) frat party with a drinking contest and one dies of alcohol
poisoning, swap meet people. Also: a theoretical problem: Suppose that someone is not death
yet and they are caught. Each would point to the other two as the cause of their involvement in
the game. Usually an act is only caused if actor lacked freedom of choice (woman who poisoned
herself).
ATTEMPT
MENS REA OF ATTEMPT
Intent to kill is necessary for attempted murder: the general principle is that the attempt to
create a result crime requires the intent to bring about that result (mostly homicide)

NOTE: The original Golden Dolinko was the People v Kraft case but it was replaced by the
Smallwood case. So the People v Kraft case from the golden dolinko has been edited from
this electronic version.


Murder = killing with intent to kill
Knowledge that you will kill
Knowledge that you create a strong probability of death
Attempt = intent to commit the crime of murder.
What is certain about crime of murder is that you must kill someone – the first word
“killing” (plus one of the three murder states). So if he didn’t intend to kill anyone
period…jury would have understood. The only way to intend to the behavior is to intend
to kill. So you can commit murder with one of three mental state but can only attempt to
commit murder with one mental state.
 Example: Thacker case: A guy got mad at a woman and shot at her tent. If it would have
hit her he would have been guilty of murder, but he was not guilty of attempted murder
because there was no intent to kill.
Justifications for special intent as mens rea for attempt
 Don’t want to be guilty of attempted murder for driving recklessly.
 Guilty of felony-murder every time there is a robbery
 Person who has attempted a crime represents a continuing threat to society. But this is
weak if the person did not intent to cause death.
Example:
D wants to destroy competitor’s plane so puts bomb in it. D knows that pilot will die. Bomb
does not go off. Attempted murder? The traditional law is unclear.
But MPC 5.01 (1)(b) allows to convict on attempted murder because belief that death will ensue
is enough.
CIRCUMSTANCE ELEMENT?: Should we say that D must have known that the circumstance
existed, OR that his mens rea as to the circumstance should be the same as that required for the
crime? E.g. crime of bigamy – suppose the crime requires only negligence – that D negligently
believed his wife was dead before he married. If he is caught right before marrying, need he
have known his wife alive, or only negligently believed she wasn’t for attempt? OR Feola case –
strict liability crime.
 Proponents for no mens rea required in strict liability crimes: the underlying policies of
why it should be strict liability are not changed merely because the crime wasn’t carried
out. Mistake of fact shouldn’t work.
 Other side: If D was aware of the circumstances, he wouldn’t have done it – so D is not
continuing threat to society.
 There are few cases and neither view is dominant.
 MPC: the culpability required for attempt is the same as that required for the
circumstance of the completed crime.
MPC Section 5.01 (1): Section 5.01 [ handwritten: pg. 1061] Division in MPC between:
!
failed attempts – did get through all conduct meant to, but it didn’t work (put bomb on
plane but it didn’t go off, shot at you but didn’t hit you)
"
no result element (1)(a): conduct element: needs purpose

"

result element (1)(b): needs purpose or belief that what they were doing would
bring about the result [handwritten: Don’t use knowledge or else not attempt]
!
incomplete attempts – D didn’t complete what they had intended to do (was caught
before done or something). Sec (1)[c])
"
circumstance: same as target crime [handwritten: same mens rea as complete
crime]
!
the language in [a] and [c] is meant to rule out the defense of impossibility
!
Feola case: assault on a federal officer. Completed crime has conduct and circumstance.
Purpose needed for assault, no mental state needed for circumstance. [1][c] is applicable
because D did not complete the crime.
ACTUS REUS OF ATTEMPT
Two extreme views:
!
The very last act: not guilty of attempt until has done the last act that he thinks is needed
to bring about the crime. Did everything necessary but efforts failed (gun misfired).
Never actually adopted in any court. It is impractical to tell police they have to wait until
D has almost accomplished goal (actually fired the gun at someone).
!
The first act: guilty of attempt as soon as takes the very first step towards goal. Idea that
if you can prove mens rea, then any act should be sufficient. Problem is that allows
criminal penalties on people so early in people’s “intent” might not go beyond wishing,
and doesn’t give chance of changing mind “locus penitentia” – room to repent. Also,
evidence of attempt might be dangerously easy to got – based on evidence that might be
untrustworthy (people who want to strike a deal with the prosecution). Further, you
abandon any effort to fit attempt into the criminal framework, which requires both a
mental element and an act.
"
McQuirter v. State (1953) p.604: Black man guilty of attempt for following white
woman down the street. This is racist decision. But there is a very relaxed
attitude toward the act component of attempt. (Maybe criminal intent all that is
necessary where there is a high need to protect children etc. but won’t really
work.
[handwritten: nobody follows the extremes]
Goal is to find a middle ground between first and last step:
PROXIMITY APPROACH: (Holmes)
Commonwealth v. Peaslee (1901) p.593: got a building all ready to light on fire, but then decided
not to. Court’s reasoning is an example of this approach: focus on how close the act has come to
the conclusion of the crime. The act must come “dangerously close” (Yes guilty here?) The more
serious the crime, the further away you have to be to be dangerously close. But Holmes says that
if buy you buy a gun to kill someone 50 mi. away, not enough.
!
PROBLEMS: What constitutes “dangerously close”? What if D has taken a lot of steps
toward crime, but there are still a lot left to take?
!
People v. Rizzo p.595 — armed guys driving around looking for guy to kill, not guilty.
Blow up a guy’s house not knowing he is in Paris – so not dangerously close?
EQUIVOCALITY APPROACH: (Salmon)
Approach: need conduct which is unambiguous, unequivocal evidence of intent. The conduct
itself must show intent on its face. E.g. of matches on p.606. The act all by itself must indicate
criminal intent – the act must speak for itself. PROBLEMS: How can you say that conduct
itself, even if knowing other things, indicates intent on its face? Look at Rizzo case — couldn’t

they have had a gun because they were scared of the neighborhood? Conduct could mean other
things. How much factual background should the jury know? [handwritten: Does anything
unequivocally show intent?]
MPC APPROACH:
Attempt to shift the focus away from how much remains to be done (proximity) to how much D
already has done. MPC combines it with a watered down version of equivocality – if you do the
last act, then there is attempt.
5.01[1][c] substantial step toward committing the crime – this results in criminality at an earlier
time than the proximity approach or equivocality.
5.01[2] What is meant by “substantial” – the conduct must be strongly corroborative of the
actor’s criminal intent. So less than “unequivocal.” But you can’t turn [2] around. If you find a
piece of evidence that is corroborative of criminal intent, it is not therefore a substantial step. It
goes only the other way around.
[handwritten: p. 576 Jackson case uses substantial step]
Problem: unusual beliefs?
Also: state legislatures have made preparatory acts crimes in certain cases – burglary.
IMPOSSIBILITY
People v. Jaffe (1906) p.623: Jaffe receives cloth which he believes to have been stolen, but
which had been returned to its legal owner and then presented to Jaffe as a trap. Held: Jaffe’s
crime is legally impossible and therefore he is not guilty. (1) Statute says he must know the cloth
to be stolen, but you can’t know something that is false. But real reason (2): If he had received
them, they wouldn’t have been stolen, so he can’t attempt to receive stolen goods. So if
consummated, it would not have been a crime. (Like the guy who sleeps with a girl who is 18,
but believes she is 16. But here you couldn’t convict anyway because there is strict liability?)
Dolinko says this can’t be distinguished from the case of the pickpocket who finds an empty
pocket. [handwritten: pg. 585]
People v. Dlugash (1977) p.625: Bush shoots V 3 times, Dlugash then shoots V two more times.
V might already have been dead when Dlugash shot him. Court talks about the distinction
between factual and legal impossibility. This seems arbitrarily drawn – in both cases it is a
factual impossibility. Held: jury found guilty of murder so they must have decided he intended
to kill V. Therefore, under MPC (doesn’t want any impossibility defense) he is guilty of
attempted murder.
U.S. v. Berrigan (1973) p.630 the distinction between factual and legal impossibility is useless.
They want to make this distinction because they don’t want just any act toward the crime to be
enough (clap your hands and believe it’ll kill someone). But is the confusing distinction worth
it?
The only situation of true legal impossibility is where D commits a crime that doesn’t exist.
U.S. v. Oviedo (1976) p.632: Trying to steal heroin from undercover officer is no crime (like
Jaffe).
MPC: Attempt is wholly objective: from the mind of the D, considers the conduct that would
have resulted if circumstances were as he believed them to be. In all of these cases D would be
guilty. But there is an exception for weirdos (think that clapping hands will kill someone) in
Section 5.05[2]: if attempt is so inherently unlikely to result in crime and is not dangerous for
society...can throw out charges (judge can decide). What if there is a severe judge? But if no
defense of impossibility this voodoo person would be guilty.
In MPC: tends to privilege mens rea over harmful results.

Mistake of Fact — harmful result, but no mens rea and not guilty
Attempt — no harmful result, but mens rea and guilty
ACCOMPLICE LIABILITY
Traditionally:
!
Principal in the first degree: the actor.
!
Principal in the second degree: aiding and abetting and had to be present at the crime
scene. This meant constructive presence — somewhere close to the crime scene.
!
Accessory before the fact: counsels, not present at the scene.
!
Accessory after the fact: nothing to do with crime at the time.
(These had to do with felonies. With misdemeanors, no 4th category. With treason, all four were
principals. Lots of problems about degree of guilt, etc.) [handwritten: everyone in treason is a
principal]
Modern Day:
!
Accessories after the fact are viewed as guilty of some lesser offense of obstructing
justice. The other three people are usually treated as equal parties to the crime. Old
distinctions are abolished.
!
Today an accomplice can be convicted whether or not the perpetrator of crime has been
tried and convicted.
!
Complicity isn’t the name of a crime – it is a theory of criminality: if person is
accomplice to murder, then the crime he’s convicted of is murder.
MENS REA
Accomplice liability requires two separate mens rea:
1st mens rea requirement for accomplice:
The intent to aid/encourage the perpetrator to engage in:
(1)
the conduct that forms the basis of the offense
(2)
the conduct that the law makes criminal
(3)
the actus reus of the crime
!
Not necessary that you know that the conduct you encourage is criminal.
2nd mens rea requirement for accomplice: (At least) the mens rea required for commission of
the offense.
!
Usually, if you have 1st requirement, also have the 2nd. But in specific intent crimes, it is
possible to have 1st and not 2nd. (Want more for a strict liability crime).
Example: Paul and Andy. Paul wants to steal wooden beams. Needs a truck. Tells Andy that
owner lent beams to him so Andy goes along with it. Suppose Andy is charged with theft as
Paul’s accomplice. Andy has done the act element of the crime of theft (3). Andy intended to
assist Paul in taking and carrying away beams belonging to someone else. So what can argue on
behalf of Andy? Andy doesn’t have intent to permanently deprive rightful owner of property –
that is what is needed to convict Paul for a specific intent crime. Why should it be easier to
convict Andy? It isn’t – must prove Andy had this also.
Must prove intent to aid and abet
Hicks v. United States (1893) p.645: R threatens C; Hicks tells C “to die like a man”; R kills C.
Held: Bad jury instructions. Court saying you need both parts – that he did in fact aid in the
crime, and that this aiding was intended by the person. Need both mens rea and actus reus.

!

BUT there is a situation where person did not act – if have evidence that the accomplice’s
intention to aid was known to the perpetrator – a pre-arranged plan, and then the aiding
wasn’t necessary.
What we are focusing on is mental state necessary for accomplice liability. It is not clear by
evidence what Hicks actually intended.
P.609 problems
i.
Hicks just goes to enjoy the spectacle: no liability – no intent to encourage
or aid Rowe, so no mens rea.
ii.
Same, but Hicks yells “go get him” and “attaboy”: not necessary to show
that what accomplice did altered the outcome. Yes liability because he
encouraged Rowe to commit the murder. But mens rea? [handwritten:
What if Rowe didn’t hear it? No actus reus.]
iii.
Hicks resolves to make certain it will succeed and will help if he has to:
Rowe doesn’t know about his intention. No liability for unexpressed
intention – he doesn’t actually help Rowe succeed. [handwritten: If Hicks
is a sheriff, his deliberate omission of a duty is his act.]
iv.
Same as above but Hicks tells Rowe he will help him. Yes liability
because previous conspiracy. [handwritten: just telling Rowe is the act]
v.
Suppose Rowe tells Hicks to bring C over to the crossroads so Rowe can
talk to him. Hicks does it and then Rowe kills him [C]. Is Hicks and
accomplice? Hicks did assist Rowe and did intend to help Rowe. But
intent was not to help the cause of death – nothing was done for the
purpose of aiding the killing.
Wilson case on p. 649: Wilson helps commission of a burglary, but it is a set-up. Wilson is
hoping to get Pierce arrested to get even with him: he is working for the police. Holding: No
accomplice liability for Wilson because he lacked criminal intent. (Lack of mens rea of a
specific intent crime so no liability).

!

How decide this case under MPC? Sec. 2.06[3] p.1140. He should be convicted
here? Was his purpose really to promote the commission of a felony or to thwart
it? Would it help if you rewrote [3][a] to say the purpose of promoting successful
commission of offense?
State v. Gladstone (1980) p. 650: Gladstone tells Thompson, a police informant, that Kent
might sell him weed, and gives T directions to Kent’s place. Kent sells to T. Does there
have to be communication (a nexus) between Gladstone and Kent? Holding: no liability
because no aiding and abetting if there is no desire that the crime succeed. [handwritten:
No mens rea #1]
!
Suppose kid hates his boss at convenience store. Robbery happens when kid is in
back room. Kid pulls out alarm system to help robber rob his boss. Yes kid had
mens rea required — wanted boss’ property taken away. Fact that kid and robber
didn’t communicate doesn’t matter. At bottom of p. 650 opinion says you don’t
need communication anyway.
!
Not enough that he knows his action will assist the crime. Must have an actual
purpose – want the crime to succeed.
!
Division in courts about whether “intent” means “true purpose” or just
“knowledge.” This court says need true purpose. Disagreement on p. 652:
Backun v. U.S. says knowledge is enough. CA says true purpose needed. In
attempt usually means true purpose.
!
What about people selling stuff and know it will be used for bad purpose?
Gladstone helps the case for people for just doing their lawful trade. But yes an
accomplice for the gun seller?
!
MPC now requires purpose.
CIRCUMSTANCE ELEMENTS: must the accomplice be aware of the circumstances
the perpetrator doesn’t need to be aware of or do we treat them the same way?
The Less Interesting Problem (strict liability): A pays P for a ride to the airport. A
doesn’t notice that the registration of P’s car has expired. P charged with criminal offense
of driving with expired registration (strict liability offense). A is charged with same
crime as P’s accomplice.
!
A has encouraged P by hiring him. MR #1: But did A encourage P to engage in
the conduct that forms the basis of the offense. Does the “conduct” include the
circumstances? MR #2: he had the mens rea required because there is no mens
rea required.
Held: Courts usually won’t convict A for strict liability crime. [handwritten: because
attempt requires higher MR]
Johnson v. Youden: Defendants are lawyers for the house-builder. Accomplices to his
charging too much for the house. But they didn’t know he was charging too much. This
was a strict liability crime. Held: Court said cannot convict unless can show that lawyers
were aware that he was charging too much.
[handwritten: For murder & attempt murder intent includes purpose & knowledge]
!
So must be aware of all the circumstances that make it criminal. So in HYPO
A had to have known that the registration was expired. So A has to have a mens
rea higher than P (awareness, knowledge for this crime it seems (?) Strong
suspicion maybe?).

!

Why? Strict liability for expired registration to deter people from doing it. No
point in extending it to passengers. But exception: maybe a category of cases
where not hesitant to extend strict liability to accomplice – where circumstances is
a jurisdictional element. E.g. Where victim is a federal officer when P beat him
up and A locked the door.
What if it is a crime that has circumstances to which the P has to be negligent? What
mens rea must A have? HYPO on p. 660 — statutory rape. Courts are very unclear
because issue not often raised. [handwritten: Courts decide on a case by case basis]
RESULT CRIMES
More Interesting Problem
“The unintended result” cases. A asks P for ride to airport. A is running late so as they
are driving to the airport, A urges P to go faster. P runs a red light and kills driver of car
he hits. P could be convicted for involuntary manslaughter based on mens rea of
recklessness or gross negligence. Can you convict A as accomplice? Here P doesn’t have
to intend the result.
!
MR #1: A did encourage the conduct that resulted in the harm. MR#2: had mens
rea required for the commission of the crime. He did not intend to cause death.
But the result is an integral part of the crime of manslaughter. Question: Is the
conduct – (1) doing the thing that results in death, or (2) just driving? In both
cases Court upheld accomplice liability.
State v. McVay (p.661) Guy knew that boiler would explode and encouraged those who
operated the ship to do it. IS he accomplice or do you have to say that he intentionally
encouraged them to kill people? — if so, no guilty. Held: guilty.
People v. Abbott (p662) Another drag racing case. Moon can be convicted as Abbott’s
accomplice. He would say “how could I intentionally aid a crime of negligence?” Court
says “but you intentionally aided him to engage in the conduct that resulted in death.
Held: Guilty.
Disagreement among other courts: 125 N.H. 57. D lent automobile to a co-worker who
was drunk. Drunk driver killed someone. Is D guilty as accomplice? Held: Not guilty.
He did not intend that Drunk Driver kill someone. The actus reus of manslaughter is
killing someone.
!
BACK TO HYPO: A has same culpable mens rea as P. If we want to deter crime
then A should be guilty also. Or he deserves the punishment.
!
Learned Hand: But A did not want manslaughter to happen. This was contrary to
what he wanted to do – he did not associate with the criminal venture as
something he wanted to bring about.
!
Assume that Courts are saying: “conduct that forms the basis of the offense”
really means “the conduct that forms the basis of or results in the offense.” Based
on this, McVay case is fine but still presents problem with Abbott case. In McVay
he encouraged him to engage in the very conduct that caused death. But in
Abbott, Moon maybe encouraged reckless driving in general, but not the very act
of fast driving that resulted in death.
Wrap-Up; There is an alteration of MR#1 when accomplice does not literally intend the
result, just the risk creating conduct. MR #1 is relaxed.
MPC: Look at MPC 2.06[4]. MPC doesn’t help – just reproduced this same problem.
It’s like the relaxed version: things are OK under McVay (he aided in precisely he

conduct that resulted in death), but same problem with Abbott (he intended to encourage
P to engage in dangerous driving, but not the very act that caused death) because MPC
does not define what “conduct” means. [handwritten: pg. 1044, must be helping with
involuntary conduct.]
CRIMES THAT GO BEYOND THE ANTICIPATED ONE
HYPO: Suppose A sets out as P’s accomplice as to crime #1. But either instead of
committing Crime1 or in addition to C1, P2 commits C2. Can you hold A as accomplice
to C2?
Anderson and Morris (p. 648)
M went to help A beat up Welch. But when they get there A stabs Welch to death. M
would be guilty of assault and battery had that happened? But A goes further than that –
can M be guilty of homicide? HELD: No. Morris is not an accomplice if what Anderson
did goes beyond what was tacitly agreed to. Court later says that M is not accomplice if
A does a crime of which M could not have suspected. But M could be convicted If he
could have suspected that A might kill.
 RULE: If A intends to and does encourage P to do c1, but P does c2, than A is
accomplice if c2 is a reasonably foreseeable consequence of c1.
People v. Luparello-1987 (p. 616)
Luparello wanted to locate his former lover so he enlisted the help of his friends. One
member of the group shot and killed the husband of the former lover. Luparello charged
as accomplice though he was not there. HELD: Court convicts of 1st degree murder
because he encouraged commission of a reasonably foreseeable act.
 Where act was a “natural and probable consequence.” Guilty not only of crime
intended to aide but also any other crime that is reasonably foreseeable.
 This extends rule further than the “unintended result.” In those MR1 is
extended, but MR2 remains. But here it would violate both MR1 and MR2. MR2
because here he does not have the mens rea require for the target crime.
Luparello did not encourage them to kill the guy, and Luparello did not
premeditate the murder.
 Court says the killing was a reasonably foreseeable consequence of what
Luparello set in motion. So the most you can infer is that maybe he was negligent
of the death of Martin – should have realized. So it is dramatic that he could be
convicted of 1st degree murder.
HYPO: H and A. H wants to burglarize a store. A works there. She gives him keys to
the store, tells him that officer on patrol is older and unarmed. H goes and guard shows
up. H panics and shoots the guard, but guard doesn’t die. H is convicted of attempted
murder; he had intent to kill. If you take seriously the natural and probable consequences
rule, A could also be convicted – all that has to be proved is that she should have realized
there was a chance of H shooting the guard (so negligent). So she could be convicted of
attempted murder even though we saw that attempted murder requires “purpose.”
PROBLEM: How do you decide what is a “natural and probable consequence” or
“reasonably foreseeable?” EXTENSION.
 Dissent: Judge actually agrees because of precedent. But does not like it because
in effect Court is deciding the guilt of Luparello based on the mental state of
another person. Luparello is guilty of whatever his friend decides to do. Judge
thinks that criminal punishment should be proportional to the mental state of the

defendant instead. Model Penal Code takes this view, thought it is the
minority one. (Accomplice must intend to aid in the act done by the principle or
NO liability.)
 Model Penal Code wants to do away with “natural and probable consequence”
rule. Commentary points out that in actual practice (middle of p. 620), the rule
does not extend to C2. Usually only if C2 was an actual murder (unlike H & A
hypo). So maybe the rule does not add all that much to how things would be
decided without it. Say in H & A hypo, the guard dies. Even without the rule A
could be convicted as an accomplice to murder. Under the majority rule to the
unintended result cases, A could be convicted of murder. She did MR1 and she
had MR2 in regard to felony-murder (nothing).
WRAP-UP: Unintended restatements and the natural and probable consequence rules
extend the ordinary rules of accomplice liability. A third extension will be conspiracy.
DEFINITION: The meaning of aide/encourage is very broad.
AIDE: assist, help, supplies used…any form of helping.
ENCOURAGE: Any kind of influence one brings, advise, command, hire or incite.
MPC p. 1140: (3)(a)(2) about aiding. (3)(a)(1) about encouraging (solicit).
ACTUS REUS OF ACCOMPLICE LIABILITY: True or false: in order to be an
accomplice, the conduct must be a “but for” consequence. FALSE. Judge Tally case
below says flat-out that there is no need for a but-for, also Wilcox v. Jeffrey.
Wilcox v. Jeffrey – 1985 (p. 666)
Wilcox worked for the periodical “Jazz Illustrated.” He is charge with aiding and
abetting Hawkins to break the law of the Aliens Order, which says Hawkins cannot be
employed in the United Kingdom. Hawkins gave a concert at a jazz club and Wilcox
bought a ticket, went to it, and than wrote an article about it. Wilcox knew it was illegal
for Hawkins to play at the concert, and he went there as an encouragement and to take
advantage of it for his paper – so intended to encourage him. HELD: Guilty as
accomplice.
State v. Judge Talley (1894)
Judge Talley’s sister-in-law was seduced. Her brother went to kill the guy. Judge Tally
told the telegraph operator not to send a telegraph warning the seducer. The brothers kill
the seducer and Judge Tally was accomplice. HELD: Court reasons that it does not
matter if the result would have occurred even without the help – he is guilty anyway.
HYPOS on p. 669
a. ***Judge Talley’s message not regarded by the telegraph operator. What result?
Traditional doctrine: Telegram does not contribute to the murder. It does not
have to be a “but-for” cause, but here it did not even facilitate – no effect at all.
However, there would be liability if they had an agreement beforehand that Talley
would intervene with the telegraph. So even though it did not work, it encourages
him. (Under Model Penal Code (p. 631) attempt to aide = accomplice.) Court’s 2
requirements p. 667. Model Penal Code: Yes, accomplice because it is
sufficient if you attempt to aide a person with the right state of mind.
PROBLEM: Doe is make sense to treat Talley as a murderer (1st degree felony)
when his conduct did not at all have effect? If Talley had himself tried to kill
Ross and had failed, he would be guilty only of attempt (2nd degree felony).

b. Everything works but the Skeltons fail to kill him. Traditional law: Cannot
convict him of accomplice to murder because no murder was committed. Could
instead be convicted of attempted murder. Model Penal Code: This would
definitely happen. §5.01 (3).
c. Same except that Skeltons change their mind on the way there and do not go
looking for him. What can Judge Talley be convicted of? Traditional law:
Nothing. Skeltons did not attempt murder so cannot convict Talley based on
them. But could Talley himself be convicted of attempted murder? The telegraph
by itself cannot kill Ross, etc. So what Talley has done is far removed – not
dangerously close to killing Ross. Under equivocality test have stronger
argument but hard to apply it here. So cannot do it under traditional law. Model
Penal Code: (§ 2.06 does not fit here, because it assumes offense has already
been done.) § 5.01 (3) – you can find him guilty of attempted murder. Says a
person who attempted to become an accomplice (enough conduct so that if they
had completed the crime, he would have been an accomplice) is enough.
Assuming he has the right intent.
Rationale: Why don’t have a “but-for” cause?
 It would be difficult to prove that the accomplice wasn’t a “but-for” cause of
crime.
 We do not think of human conduct in the same way as a natural event. Natural
event has a cause, human conduct is not caused in that way. There is choice. Not
a matter of causing the principle to act but a matter of endorsing it.
Note: This is different from causation, because accessorial liability does not require a
“but-for” test. Is any actual encouragement required at all? After Model Penal Code –
no, mens rea is enough for liability. But P must have committed a crime for A to be
liable. Omission can result in accomplice liability if the person had a legal duty to
prevent the offense.
Note (p. 675): Accomplice liability is not vicarious liability. Different meanings of
“derivative liability.”
 Means liability posed on one person from what another does. This is accomplice
liability. The secondary actor must do something such that it is appropriate to
blame him for what primary actor does OR
 Means liability based on relationship between two people. This is vicarious
liability, not accomplice liability (no mens rea require here).
Innocent-instrumentality theory: Rule – an accomplice cannot be convicted unless there
was actually a crime committed by the principle. BUT: There is a situation where the
principle (the actor) is not guilty of the crime, and the secondary party is. One person
uses another as his tool. The solution is that in this kind of case, not using theory of
accomplice liability, but the innocent instrumentality theory.
 HYPO: I gave coffee to Harold and asked him to give it to Cynthia. He does and
Cynthia died. I had poisoned it. Harold has no guilt. I am guilty of murder as the
principal.
 HYPO: Change facts of State v. Hayes: If Hayes makes Hill do burglary, than he
is seen as causing the act of the other person (don’t normally say this). The act is
really the Defendant’s own act.
 Model Penal Code incorporates this notion into §2.06. There is a general rule.

Excuse defenses do not extend to others:
 What if anything is typical except that P has immunity or something other than a
policy-based excuse (p. 636). So is A still guilty of accomplice liability? Yes.
Because if it can be proven that P did commit the crime of espionage, that is what
is necessary. Nowhere is it said that you cannot be convicted as an accomplice
unless someone else is convicted – only need to show that the crime was
committed. The defense is personal to P.
 Entrapment is also a defense like espionage. P must show that idea of crime was
implanted by government agents. A can still be convicted here too.
 Suppose P kills someone and P is insane. P believed that next-store neighbor was
plotting to kill him so P goes and kills the neighbor. P would not be guilty by
reason of insanity.
 Or coercion is a personal defense. These are excuse defenses. They do not show
that P was doing right, but rather that P should not be punished. These defenses
do not extend to others. Just have to prove crime was committed.
Justification defenses do extend to others:
 Prison break where man landed plane and woman and man escaped. Then later
caught. Woman said she was in serious risk if she would have stayed in prison.
So the man cannot be held responsible because W’s conduct was not criminal.
The acquitted principle:
 U.S. v. Standefer (p. 642): An accomplice can be put on trial and convicted even
if the perpetrator has not been tried yet and even if P has been found not guilty.
Court said that: this happens, juries differ (where A & P are tried in two separate
cases). That jury finds that P did not commit the crime does not mean that P
really did no commit the crime – there are other factors at work. BUT: At A’s
trial, the Government must prove that P did in fact commit the crime.
o Maybe evidence of P’s guilt could not be admitted at P’s trial (evidence
seized in an unlawful way, etc.)
o Also, government cannot get an appeal against a not guilty decision, even
if it was unreasonable (like in civil cases).
So government can use the evidence in a separate trial. If P and A are on trial in
same proceeding, than A cannot be found guilty if P is not. (26 Cal. App. 4th)
Acts of a detective are not imputable to D
State v. Hayes – 1891 (p. 671)
Hayes (D) asks Hill to rob store with him. Hill is relative of store owners. Hill aggress
so he can set D up. D helped Hill get into the building and Hill was the one who stole and
handed stuff out the window to D. HELD: D cannot be guilty as accomplice. How can
D be liable of the acts of Hill if Hill did not commit a crime? D and Hill must have the
same common motive and design. So acts of detective are not imputable to D. Hill did
not have the requisite intent. So Hayes cannot be guilty of burglary. (Can be guilty of
petty theft)
Different Result:
Vaden v. State – 1989 (p. 673)
Vaden was a hunting guide presumably promoting illegal hunting practices. Snell hired
him undercover. Snell shot and killed 4 foxes. Valen convicted on four counts of taking
foxes hunting as accomplice. 1. Court found that the actions were not justified (actions

were actually criminal). 2. Court went on to say that even if Snell’s actions were
justified, it would not help Valen because that justification would be personal to Snell. (Is
this wrong?)
 Dissent: said that Snell’s actions were so outrageous as to deny due process.
Also says case should fail based on precedent of State v. Neely, which says that
the act of a feigned accomplice can not be imputed to D. Here essentially the
police officer can decide what D should be convicted of.
The Problem: HYPO: X walks down street and encounters two people fighting. He does
not like the one he knows so he helps the other one. What he did not know that the
person he helped was actually a police officer. So police officer is not guilty of battery,
but could X be convicted of battery as police officer’s accomplice? Under Vaden, yes?
But actually no possible – no crime is committed here. So why is Vaden case any
different?
A cannot be convicted of a more serious crime than the one committed by P.
Regina v. Richards (p. 642): D hired two men to beat up her husband. They do less harm
than she intended. Two thugs convicted of misdemeanor assault and she is convicted of
felony assault.
ISSUE: Can you convict someone as an accomplice of a more serious crime than the one
committed by the perpetrator? (Courts have no problem convicting A of a lesser crime
than P. e.g. In the heat of passion, A hires P to kill V. So P would be convicted of 1st
degree murder. A might be convicted only of voluntary manslaughter – adequate
provocation.)
HOLDING: Mrs. Richards convicted cannot stand, it must be reduces to that of the
thugs.
Note: Prosecution argues that Mrs. R was actually the P. She had both mental state and
act (caused thugs to act). But the thugs are free agents. Can you treat the acts as both
those of the agents and those of Mrs. Richards? Accomplice liability is for situations like
this.***
 HYPO: Someone comes to Dolinko’s office and asks for the way to the Dean’s
office. Dolinko, falsely believing he is going to beat the dean up, draws him a
map. The guy enters the office. Dolinko could be guilty of burglary. Aided the
guy to enter the office, combined with Dolinko’s bad mental state that he would
commit a crime within. But you can’t just attach the mental state of one
person to the acts of another.
 HYPO from book (p. 680): Mrs. Jones hired men to assault her husband to give
him a fright. Only Mrs. Jones knows he has a weak heart. He dies from the
fright. The hired men can only be convicted of a misdemeanor of assault (with no
intent to inflict great bodily harm). If follow Richards, she can only be convicted
of the minor result. But doesn’t she deserve 1st degree murder? Is there any way
that this case is different from Richards? One would want to argue the innocent
instrumentality theory. They were not fully informed agents. (Can’t use the
theory in Richards.) But here they are really only partly innocent
instrumentalities and to some extent they are guilty.
 In real life homicide cases, Courts follow the opposite approach from Richards.
Mrs. Richards more guilty than thugs so guilty of a higher grade of crime. There

are cases where A gets convicted of 1st degree murder and P gets convicted of 2nd
degree murder (S v. Wilder 608 P2d 270).
CONSPIRACY
Generally conspiracy law getting more complicated. (1) More conspiracy charges every
year. (2) They are more complicated than they used to be.
Definition of conspiracy: Agreement by two or more people to commit one or more
unlawful acts.
 Some jurisdictions add to the agreement of the overt act requirement. In most the
overt act need not itself be anything criminal or be strongly corrobative of
criminal intent. Though some courts have adopted extra requirements.
Conspiracy v. Attempt
 SIMILARITY: Both are inchoate crimes. You can punish someone before they
reach their criminal goal.
 DIFFERENCE: Attempt merges with the completed offence. Conspiracy does
not merge – you can be convicted and punished for both. Callanan v. U.S. (p.
732). There is only one purpose of punishing for attempt: inchoate crime to deter
them from completing the crime. But conspiracy has an additional purpose.
There is a special danger in group criminality.
 DIFFERENCE: Conspiracy comes into play a lot earlier than attempt. For
attempt there must be a substantial step toward committing the crime. In
conspiracy, it is complete at initial agreement, or at time first overt act is
completed.
Conspiracy v. Accomplice Liability
 SIMILARITY: Both are aimed at prevention of group criminality.
 DIFFERENCE: Conspiracy itself is a substantive crime the way attempt is.
Accomplice liability is not a separate crime.
Prosecutors like conspiracy because:
 It comes into play really early
 Hearsay exceptions. Hearsay is a statement made by someone no in court under
oath – admitted to prove the truth of what is asserted in the statement. So the
exception is that a statement made by a conspirator can be used against any coconspirator. Usually jury first hears the hearsay and then told to disregard it
unless they later decide there is evidence.
 Venue Rules. 6th Amendment says prosecution must be brought where crime was
committed. Conspiracy is triable in any location where any overt act was
committed by any conspirator. HYPO: If trying a crime on pornography, don’t
want to do it in L.A. So someone went to Memphis, try it there.
 Also allows numerous defendant for one big trial. Harder for jury to keep track.
 Used to be that conspiracy didn’t have to be for a crime – just had to be immoral.
Still in California Penal Code but would probably be found unconstitutional.
 Pinkerton Doctrine: Connection between conspiracy and accomplice to crimes.
Note: It is common to charge someone with both conspiracy and for the substantive
offences of the crime.

PINKERTON DOCTRINE: Allows a conspirator to be held liable for crimes
committed by co-conspirators without government having to satisfy what needed for
accomplice liability.
Pinkerton v. United States – 1946 (p. 734)
Two brothers were making moonshine liquor and not paying taxes on it to the IRS. They
were charged with ten substantive counts of violating IRS and charged with conspiracy to
violate IRS. Daniel was found guilty of conspiring with his brother to violate tax laws.
 If you apply law of accomplice liability to Daniel, he would not be guilty of the
substantive crimes committed by Walter. Daniel did not aide Walter in those
counts – did not participate in commission of those offenses. He was in jail when
some were committed. What about encouragement? Also, no evidence that
Daniel encouraged Walter to engage in those particular substantive offenses. A
conspiracy to commit crimes in the future is not enough (not the particular
crimes). Note—at one time before, in prison, Daniel agreed to help in future
crime but not in this specific crime
 Nevertheless, Daniel is convicted as Walter’s accomplice. WHY?
o Court points out that the overt act of one conspirator satisfies the conspiracy
conviction for all of them. This is because each is the agent of the others. By
analogy, the crime of one co-conspirator can be imputed to the others. So
this is a new application of the overt act. Before, it was only about showing
that we are not prosecuting too early—not that all can be convicted of crime
of one as accomplices.
o Court says that it would be a different situation if the crimes of one could
not be reasonably foreseen as part of the conspiracy. But this is not the case
here so it is DICTUM. Possible HYPO: if Walter blows up neighbor’s house,
it might be in furtherance of making moonshine, but is not within the scope or
in furtherance of the conspiracy, or a reasonably foreseeable consequence of
the conspiracy. Here crimes are totally foreseeable because they are the goal
of the conspiracy.
Problems p. 690
1.
TRADITIONAL
PINKERTON
A, for B’s robbery of bank 1
YES
YES
for C’s robbery of bank 2
YES
YES
for D’s auto theft
YES
YES
B, for C’s robbery of bank 2
NO, would have to
YES
show that B intended
his behavior to
encourage C’s action
C, for B’s robbery of bank 1
NO, same reason as
YES
above
B, for D’s auto theft
NO. B did use the car
YES, it is reasonably
so it helped B. But
foreseeable because cars are
would have to show
often used in robberies.
that B aided the theft of
the car. He only used it
after it had already been

stolen.
C, for D’s auto theft
NO. C had nothing to
do with it.
D, for B’s robbery of bank 1
YES? Is it enough that
D knows that car will
be used in robbery or
does he have to have
the purpose of aiding in
the robbery?
D, for C’s robbery of bank 2
NO, car had nothing to
do with bank 2 robbery
All are members of the conspiracy.

YES, same reason
YES

YES

EXTENSIONS of the Pinkerton doctrine:
Reasonably foreseeable
State v. Bridges (1993) p. 687
D is convicted of substantive crime of murder. Murder was not a goal of the conspiracy.
The conspiracy is to commit aggravated assault (to point a gun at someone when
manifesting indifference to human life). Facts: went to party and used guns to keep
crowd back while D fought someone. Pinkerton is usually used to convict of a
substantive crime that was:
 Goal of the conspiracy or
 That substantive crime directly facilitates goal of the conspiracy. (e.g. In course of
conspiracy to escape from prison, someone kills a guard.)
Here the murder does not do either. Court: it was reasonably foreseeable given the
conspiracy. So D is convicted of murder. He was negligent in regard to death—he
should have known someone would die.
 But what about natural and foreseeable consequence extension of accomplice
liability? New Jersey does not use this.
Reasonably foreseeable applies (but not to minor participants)
U.S. v. Alvarez (1985) p. 691
Planning to sell cocaine to undercover agents. Agents move in to make arrest and a shoot
out starts. Federal agents are killed. 3 conspirators charged with accomplice to murder.
Killing a prospective customer is not a goal of conspiracy, nor does it facilitate the goal
of the conspiracy. Court says this. But court says that Pinkerton applies as long as what
co-conspirator did was “reasonably foreseeable.” But wouldn’t apply it to minor
participants.
 Extended because the crime was not done in furtherance of the goal of the
conspiracy. Won’t apply if minor participants or did not have actual knowledge of
conspiracy.
Critics of Pinkerton (MPC): Pinkerton doctrine turns out to be:
 Unnecessary: often there is enough evidence that the co-conspirators could have
been convicted as accomplices under the traditional rules.
 Goes too far: it adds too much like in Luciano case (p. 743). He was convicted on
62 counts of prostitution. In theory a prostitute could be charged with 300+

counts of prostitution and 400+ counts of living off prostitution, some murder
counts of Luciano, etc… So prosecutors could overreach the charge to a minor
participant in an offense. Pinkerton says any person in a conspiracy is guilty of
the crimes of anyone else in the conspiracy. In real life it is not this extreme,
though possibility is there. E.g. In one case—A referred women to doctor who
did abortions. A was charged with being a member of the conspiracy, so charged
with crime of abortions that were done when referred to by people not herself.
(78 CA2d 22) (This is why Alvarez doesn’t want to extend too far.)
ACTUS REUS OF CONSPIRACY:
Critics: Conspiracy is thought to violate the part of crime that says one can only be
punished for bad acts.
Definition: The act in a conspiracy is the agreement between people. But you don’t need
an explicit agreement—a tacit agreement is sufficient. A tacit agreement can be proved
by circumstantial evidence. E.G. evidence showing that people are acting toward a
common goal. One can infer from these acts that they have agreed in some way. Quotes
(p. 747, p. 744). Issue: So how much evidence do you need to prove a tacit agreement?
How often is there an actual agreement?
Commonwealth v. Azim (1983) handout
Azim was the driver of the car. The two passengers got out of the car and beat up and
robbed a man while Azim waited in the car. Charged with conspiracy, assault and
robbery. Held: It can be inferred from the fact that Azim was in a conspiracy because he
was with the con-conspirators. Had knowledge of the crime, was present at the scene of
the crime, participated in the object of the conspiracy. Only once find that he was a
member of the conspiracy can court say he is an accomplice.
 ***This is a borderline case in terms of finding the agreement. But in this case
you wouldn’t expect to find an agreement. Courts will not always find an
agreement in a case like this. (Can compare to US v Baflino 285 F. 2d 408.
Mobsters lied and so were charged with conspiracy to commit perjury.
Conviction were thrown out because though lying, where was the evidence of the
conspiracy—an agreement to lie? More likely in this or the Azim case that they
were lying?)
HYPO: Is there enough evidence to convict lieutenant of conspiring to break gambling
laws?
1. Suppose: lieutenant of precinct in a city believes gambling laws are stupid. He
knows people are doing it and does nothing to stop it. NO because there is no
agreement with the gamblers.
2. Suppose: vice squad is planning a big raid on gamblers and lieutenant doesn’t
want them to get any glory. Lieutenant warns the gamblers. NO. This may make
him an accomplice because he has aided him, but still no agreement for
conspiracy. (Note--To show accomplice need to show purpose not like drug dealer
case.)
3. Suppose: like facts of 1, but also that he gets an envelope every week with money
from the gamblers. Lieutenant doesn’t know identity of gamblers. YES because
there is enough evidence to infer an agreement. Doesn’t need to know who they
are.

4. Suppose: like facts of 1, but there is a local mob boss aware of lieutenant’s
attitude towards gambling laws. (Here there is no conspiracy because not
agreement. Only tow people doing things for their own self-interest.) But then
mob boss says “hey, he doesn’t waste his time on gambling laws, do you
lieutenant?” and the lieutenant smiles and nods. Is this enough evidence of an
agreement? (This is like the other Alvarez case.)
The inference is that the smiling and nodding means that there is a tacit
agreement that he will not enforce the gambling laws. On other hand, maybe it just
confers what they each already n=know and are doing for personal reason. On third
hand, could you argue that right here there has been a conspiracy?
US v Alvarez (1981) p. 699
When asked if he will unload the plane, Alvarez nods and smiles. Convicted.
Dissenters: Alvarez may not have even known there were drugs coming into country.
Majority: Assume that evidence shows that Alvarez knew the drugs were coming off the
plane. If this is so, then should be convicted—even though he is not drug lord, for
conspiracy you are in all the way or you are out. Any way to avoid convicting Alvarez?
 Is there a gap between knowingly agreeing to help X and y in their plan and
joining with X and Y in their plan? HYPO: Two republicans want to put up
posters around town. They ask their democratic friend if they can borrow his car
and he agrees.
MENS REA OF CONSPIRACY: the traditional way of defining conspiracy (an
agreement) doesn’t tell you anything about the state of mind of the “conspirator.”
 Commentators have often said that there are two mental states required for the
crime of conspiracy:
1. the intent to agree
2. the intent to commit the target crime (unlawful object of the
conspiracy).
 It is possible for someone to have 1 but not 2
HYPO: Suppose A and B agree to remove bomb casings from air force base, believing
them to be abandoned. They are not: A and B are charged with conspiracy to steal govt.
property. They had the intent to agree with each other, but did not have the intent to
commit the target crime.
 It is hard to keep mental state #1 from the act part which is agreement. So it
doesn’t really play a part. The real mens rea issue is #2. Cases in which it is an
issue include:
1. does knowing assistance to a criminal undertaking equate to intent to
commit (promote) the target crime.
2. what is necessary to constitute awareness that crime exists…
Issue #1:
People v Lauria (1967) p. 753
Lauria charged with conspiracy to commit prostitution. Lauria runs answering service,
knowing that some of his clients are prostitutes. Lauria knows that his service is used for
illegal purpose. Does this mean he conspired to do the crime? Issue: Is knowledge
enough to make you a conspirator? Held: NO. There must also be an intent to further
the criminal use. But it gets confusing in certain situations.



Note: HYPO of a robbery. The guy in back room hates his boss so rips out the
cords to the alarm system, unknown to the robber. Here there is no agreement.
Guy bin back room purposely provides to the robbery. In Lauria the guy has an
intent to promote prostitution, but is there an agreement: The Court does not
address this issue. Court talks about intent issue as if it is identical to agreement.
P. 757 says that if he intends it, it shows a tacit agreement. (In this hypo, this is
not true.)
Court: Knowledge is not enough to make a conspirator, also have to have an intent that
crime be committed. How prove this purpose?
1. Courts say sometimes there is direct evidence that the supplier intends to
promote commission of the crime. But not her. E.g. gives advice on how
to use a gun to kill someone.
2. Sometime supplier charges an inflated price—shows that supplier has a
stake in the criminal venture.
3. If you are supplying something that has no legal use: shows intent that you
are providing something for illegal use.
4. Dealing disproportionately with criminals.
Problem HYPO: man goes to chemical retailer and asks for a fast-acting poison. He says
he and his friends are planning to kill some of his neighbors. Chemist says OK and
charges his normal price. This does not satisfy any of the 4 requirements listed above for
purpose. (Tacit agreement)
5. Mere knowledge that stuff will be used to commit a crime if the crime is a
serious crime. Court says that a misdemeanor is not a serious crime, but
doesn’t say that all felonies qualify—some do. (Falcone case where
felony was to make moonshine liquor) But this is dicta.
This is an intermediate state court, but it has been influential.
Mens rea as to elements of the crime:
AGREED: The conspiracy to commit crime X requires at least as much mens rea as
crime X (the target crime). Issue: The controversy concerns whether the conspiracy
sometimes requires more intent that the target crime.
 If target crime has a result element—It is AGREED that the conspiracy to
commit the crime requires the intent tot bring about that result. So murder
requires an intent to commit murder. NO SUCH THING as conspiracy to commit
involuntary manslaughter
 HYPO: 2 fools decide to have a drag race. A 3rd party is killed. They can be
convicted of manslaughter (or maybe even depraved heart). But you cannot
convict them of conspiracy to commit manslaughter—they did not intend to cause
death. MPC requires an actual “purpose” to achieve the result.
 HYPO: if two people conspire to blow up a building, it is not enough that they
know people will die. There is no purpose to kill people, so can be convicted of
conspiracy to destroy building only. Conspiracy begins at a very early point in
the crime so requires high showing of mens rea (though later they can be
convicted of murder) [But don’t forget Lauria exception. It is minority view and
has not been followed in a murder case.] ***so not important?
Corrupt motive doctrine (710): from People v Powell: in order to be criminal
conspiracy has to be motivated by a corrupt motive. What does it take to commit on

an agreement to do an act that is innocent in itself? There are two categories of
crimes:
1. malum in se: evil in itself. Aside from fact that it is illegal, it is also evil
(rape, murder, theft)
2. malum prohibitum: evil by prohibition. A crime where underlying
behavior is neutral, morally speaking (regulatory offenses that may in fact
seem improper or one like driving on left side of road – it is wrong
because it is illegal)
• Powell is talking about malum prohibitum – if the target crime is this kind of
offense, then you can only be guilty of a conspiracy if you are aware that the
act is prohibited (if so, breaking the law is evil). Then Powell rule is an
exception to the ordinary rule that a direct mistake of law is not a defense.
• MPC doesn’t like Powell doctrine – says to either get rid of mistake of law
doctrine and strict liability crime or follow it. Most states following MPC
have gotten rid of corrupt motive doctrine. Some states have it though.
Added Note: Allows a narrow mistake of law
Circumstance elements to crimes: There is no one rule used in all cases – the law is
very confused here. Added Note: Issue tends not to arise, Dolinko doesn’t care,
MPC stays away
• Suppose the circumstance element is a purely jurisdictional element (Feola
case). YES conspiracy. How can you convict them of agreeing to assault a
federal officer when they did not know he was a federal officer? (1) Judge
Learned Hand: stoplight scenario – says there must be a higher mens rea. (2)
But in Feola, the Court says that they do not need to be aware of the
jurisdictional fact. Reasoning: conspiracy serves two purposes:
° Protecting society from special dangers inherent in group activity
° It is an inchoate offense – allows early action to prevent crimes.
Court says that neither of these purposes would be promoted if you required
awareness of status as a federal officer. (All it means is that they didn’t know
which body of law they were going to violate.)
• Suppose the circumstance element makes the crime more serious. YES
conspiracy? Example p. 762-3: supplier and dealer meet with buyer who asks
to meet as a bar. The buyer is actually a fed and the bar turns out to be next to
a school so more sever penalty (strict liability crime). Selling the drugs is
already criminal, but next to school it is more serious. If drugs actually sold,
it would be no defense, should it be a defense to conspiracy that they didn’t
know?
° If you follow the Freed case (p. 763), then it is still strict liability in
regard to conspiracy. In Freed D’s didn’t know hand grenades were
unregistered. The agreement to acquire hand grenades is not innocent in
itself. So in hypo, agreeing to sell drugs is illegal anyway. But the logic
of Freed is dubious. Here the issue was not a mistake of law, but a
mistake of fact.
• Suppose the circumstance element is essential to the behavior being
criminal. NO? Example is statutory rape HYPO on p. 763. Two friends
agree to go to a hotel so one can have sex – the girl is underage though she

claimed to be of age. Suppose you are in a jurisdiction where this is strict
liability. Should conspiracy be strict liability?
° MPC does not resolve this issue – it is left for the courts to decide.
Sec.5.03(1) (p.1158) gives a definition: the language indicates the actual
purpose is required for result, so why doesn’t it apply to circumstance
element? Who knows?
° Group criminality: The two P’s think that the conduct is legal, so why
would you draw the inference that they will commit other crimes in
order to achieve it etc.
° Early intervention: The agreement is less dangerous to society than it
would have been if they had known her age. Also, because there is early
intervention…not good because of all the procedural stuff etc, that goes
with it. You should give them the benefit of the doubt – they might have
stopped if they had known the truth.
Why is it important if there is one conspiracy or many?
• One big conspiracy: D would want this because
° Want to avoid multiple conspiracy counts
° Don’t want the chance that keep prosecuting little conspiracies down the
road
• Bunch of little ones: D would want this because
° A fear of the Pinkerton doctrine – If A is just a member of a small
conspiracy, doesn’t want to be liable for everyone who is part of a big
conspiracy.
° A fear of evidence and hearsay of a large amount of people. (Want only
the hearsay of smaller amount of people to be used against D).
° Overt act requirement: with one big conspiracy, then the act of anyone
in it can satisfy the requirement.
° Joint trial of all the conspirators
° Venue (smaller one cuts down the number of possible locations where it
can be held).
° Statute of limitations (with a small group it may already have run).
Added Note: runs from time conspiracy ends (abandonment of success).
Kotteakos v. United States (1946) p. 764: Brown is broker in illegal housing loans, he is
only connection between 8 other D’s, including Kotteakos.
• Simon Brown would be happy with one big conspiracy. He wants to be
convicted of one count of conspiracy instead of 8, where he gets a much heavier
sentence.
• The other D’s in the case might prefer a bunch of small conspiracies because (1)
fear of Pinkerton, (2) fear of evidence and especially hearsay, (3) overt act.
Factors that influence the decision between one large or many small conspiracies:
Examples:
1. H is a broker specializing in stock issue by companies manufacturing
computers. S1, S2, S3 are each an officer of a company that manufactures
computers. H has made an arrangement with each of the S’s for S to share
inside information that would influence stocks, and H will pay a percent of
earnings from stock trade. Is there one or more than one conspiracy? There is

more than one because each S does not care about the other agreements
between H and the others S’s. The success or failure are independent of each
other and none have any stake in other.
a.
This is the same pattern as in Kotteakos. A wheel without a rim.
Added Note: S1 and H relationship has an interest in their own
deal, but they do not care about any other deals with H.

2. Suppose the H wants S1, S2, S3 to share information so that H can sell it to X.
This differs because there is a pooling of information to sell to X. Now there
is a connection between all of them – there is a rim to the wheel. Each knows
that others are involved and the contribution of others is necessary to carry out
the plan. (How many others and who they are is not important).
a.
This resembles the Anderson case (p. 768) – abortion one. Each of
the spokes is paid for referring patients to Stern. This is an
ongoing business, Anderson keeps referring patients to Stern.
Each person who refers patient to Stern has a stake in the
continued flourishing of the business, and so a stake in what other
people do. So there is a rim to the wheel. But is the fact that
Anderson knows others are involved enough to create a single
conspiracy? Isn’t it that Anderson has to know that the success of
the business depends on others? (Court is being sloppy). Added
Note: Court said she must have known there were others
involved…this was a poor case.

b.

Criticism of Anderson: See comment by Judge Learned Hand p.
766. Thieves steal stuff and sell it to F – no big conspiracy. This is
the same set up as in Anderson where there is one big conspiracy.

Here F can only stay in business as long as the thieves sell him
stuff. Dolinko (none of the Courts talk about this): maybe it is
because there are so fewer people doing abortions than people to
sell goods to. A thief can just go elsewhere. Here if Stern doesn’t
stay in business then Anderson is out of luck.
The Chain Conspiracy
Blumenthal v. U.S. (1947) p. 767
O→W & G→F, B
Owner (Unknown) has whiskey, wants W & G to make it look like whiskey is theirs, and
they will sell it. They sell it to F and B.
1. Clearly there is a conspiracy between O and W & G and also a conspiracy
between W & G and F, B. But Court says this is not like Kotteakos – they
must have know that others played roles in the scheme of the plan would not
work. Added Note: F, B must have known there were more people involved to
sell the whiskey. It is a successive series of steps rather than one person in
a hub and spokes (chain rather than wheel). Here there is a common
scheme in which people play a role.
2. So why are F and B in same conspiracy (instead of view them as rivals)?
Court says that it would be false to say that F and B are doing different things
– they are like two salesmen in the same store. Both knew they were aiding in
a larger plan and they were selling only part of a big stock of merchandise.
U.S. v. Bruno (1939) p. 769
N.Y.
S→M<
TX and LA
Like in Blumenthal, the sellers in N.Y. and TX were aware that others were involved.
But here it really does look like they would be rivals. So why do they have a common
interest? Depends on if you look at it from the smuggler’s point of view or the sellers
view. Why pick the smuggler’s view? (Things get complicated when you are dealing
with big business-like conspiracies. The nature of traditional conspiracy law is all or
nothing).
• MPC seeks to avoid this by using a unilateral approach.
MPC is confusing so will not be tested on it. Section 5.03.
• Focuses on individual people. It could happen under the MPC that A is guilty
of conspiring with B to commit a crime, but B is not guilty of conspiring with A
to commit the same crime.
• It is a purely subjective standard for what counts as an agreement (what
thinking in mind). It does permit a more flexible notion of conspiracy.
• Suppose: imagine Bruno situation. But all of the letters refer to one person
each. S and M get together and agree to import heroine into U.S. They also
agree that M will find retailers to sell the heroine. So they have agreed to

commit two crimes together (importing and selling). Then M agrees with NY to
sell and separately M agrees with TX. Assume neither retailer knows about
each other or about the S and M agreements.
So there are four conspiratorial agreements:
5.03(1)
5.03(2)
1. S and M agreed to import
1 & 2. Now S has conspired to sell
with M
2. S and M agreed to sell
and NY and TX b/c knew M would
conspire further
3. M and NY to sell
3 &4. TX only guilty of conspiring with M
to sell
4. M and TX to sell
b/c didn’t know about M-S agreement
This is contradictory to common law.
• There it has to go both ways. Here the ones at the top are convicted of bigger
conspiracies than those at the bottom.
• Why are the first two statutes not actually one conspiracy? If there is only one
agreement, there is only one conspiracy – doesn’t matter how many statute
violations. See fn on p. 772 where Courts says that the general rule only applies
when you are being prosecuted under one stature (there can be many crimes
committed under one statute). Here there are separate statutes for importation,
selling. This is a special rule for drug crimes
PARTIES TO A CONSPIRACY
Gebardi v. U.S. (1932) p. 724
Suppose you have two people, Jack and Jill. They are half brother and sister. They are
raised apart and meet each other years later. They decide to have sex in a hotel room.
This would be incest. But they are arrested before it happens and they are prosecuted for
conspiracy to commit incest.
Wharton’s Rule: where it is impossible to commit the substantive offense without
cooperative action, no conspiracy. Incest is one of these crimes – because it requires
group action, conspiracy to commit it is not a permissible charge. Courts are split on
whether to follow this rule. This rule handling peripheral cases so not that important?
Wharton’s rule applies even where the crime hasn’t yet been committed.
• Rationale for Wharton’s rule: Conspiracy law serves the two purposes (1) of
inchoate crime, and (2) permits punishment for special dangers inherent in
group enterprises. If the target crime itself necessarily involves group activity,
then it doesn’t create and special danger beyond what is inherent in the target
crime itself.
• Exception: Suppose there is a group agreeing to commit incest that is larger
than the group needed. Suppose that Jack and Jill ask a friend for use of his
house. So now there are three people – so rationale doesn’t apply. This is a
limitation.
MPC advocates reject the rule all together. (1) Rule operates to immunize both parties
from a crime when legislature has indicated that at least one should be punished. (Where
is this coming from? –not a very strong reason). (2) The other reason for conspiracy to
be a crime is that it allows early intervention. Wharton’s rule overlooks this function as

an inchoate crime. This not strong either: why is it OK for one reason to disappear? And
why is it so necessary to intervene so early? Can’t you just use attempt law?
• Counter: it is a way of avoiding double punishment for what is really the same
conduct.
° Rebuttal: But MPC says it does not need to protect them for double
punishment. There is a provision that already does this. Section 1.07(1)
(b) – limitation on convictions for multiple offenses. A person cannot be
convicted of both a conspiracy to commit crime X and for crime X itself.
If the conspiracy has more than one crime as its goal, then this provision
does not apply.****
° Provision 5.04 on p.1159 subsection (2) creates a defense to conspiracy
to commit a crime when if criminal object were achieved, actor would
not be guilty of committing the crime itself or as an accomplice. Jack
and Jill would get no break here. (?) incident to crime SEE TEXT on
this. Heroine buyer could not be guilty of conspiracy to sell. Added
Notes: Watered down version of Wharton. Perhaps conspirators
conduct was a victim. Example is statutory rape: man is 28 and woman
is 12, woman is not accomplice so she is not a conspirator. Common
law: Ok crime & conspiracy. OK attempt & conspiracy.
Gebardi cont’:
Wharton’s rule is not actually applied here. D guilty of conspiracy to violate the Mann
Act: a crime to transport a female across state lines for immoral purposes. Wharton’s rule
is not applicable because the Mann Act as a substantive crime does not require two
criminal agents (one person can violate it where a man forces a woman to cross state
lines).
 Court reverse conviction because she cannot be convicted of the substantive
crime- the crime is the conduct of transporting the woman across state lines.
Legislative did not intend that women’s conduct be criminal- purpose was to
protect women. But what about Mr. Gebardi: under traditional law, conspiracy
takes 2. So throwing out her conviction means he had no one to conspire with, so
(his conviction is) thrown out. But under MPC’s unilateral approach, he can still
be convicted.

EXCULPATION
SELF-DEFENSE
Traditional requirements:
One is privileged to use force against another if one
1. reasonably believes
2. such force is necessary to defend against the other person’s
3. imminent use of unlawful force
4. and one’s own use of force is not excessive.
Hypos: can A successfully claim self-defense?
 V curses A: A punches V in face—NO. There is no necessity here. V was not
threatening A with a physical attack.
 Same, except V comes at A with fists; A punches V—YES. The necessity standard
has a gray zone. Hard to claim that the only was to avoid harm was to punch V

first. But here it is generally OK. He did not use deadly self-defense and he was
facing an attack. A does not have to establish that the only way to avoid harm
was to punch V, only that he reasonably believed it was necessary to ward off an
imminent attack.
 Same as 2nd, but V punches A and then walks off; A runs after him and knocks him
down—NO. V left the scene so no room for reasonable belief that V will attack.
(This is retaliation.)
 Same as 3rd one but V does not walk away; A kills V with a crowbar—NO. A used
excessive force. Using a crowbar is not a permissible way to defend yourself
against a non-deadly attack. But there is the circumstance where many V was
much bigger than A physically; it could be a legitimate self-defense. Generally,
deadly force is permitted only to repel a deadly attack (or that great bodily harm
will be inflicted). Traditionally, deadly force was also permitted if you had a
reasonable belief that someone would rape or kidnap you (or robbery in NY.)
 A and V fight; V says he is going home for gun; V turns to walk away and A stabs
him—NO. The threat wasn’t imminent. V has to go all the way home to get the
gun, so A has an opportunity to do something else to protect himself.
 V threatens A with death; A knows V’s reputation as a thug; V reaches into his
coat pocket for tissue; A, thinking it is a gun, shoots V—YES. A reasonably
believed that V would assault him with deadly force. It was reasonable based
on the facts of reputation etc. But if A prevails on his claim of self-defense when
A was mistaken that V would kill him, A is nonetheless convicted of nothing.
Self-defense is a complete defense. Self-defense is an affirmative defense- it
doesn’t cancel out an element of the crime, it explains why he intended to kill.
Yes…but…
 White women scared of black man so shoots him. Is it a reasonable belief that she
is terrified of black men?
People v. Goetz (1986) p.801 (robbery is one for self-defense): Goetz about to be robbed
on subway, had been robbed in the past, shoots and severely injures his young, black,
assailant. Goetz unsuccessfully argued that the change in the NY’s law was that the
standard of reasonableness should be reasonable to him. What is the difference between
saying this and saying it doesn’t have to reasonable at all?
 MPC: Does §3.04 embody a subjective test? It looks like it because the wording
says “believes” and not “reasonably believes.” But no, it is not purely subjective
because it is subject to the provision of §3.09 (2): If I think another will kill me,
but my belief is totally unreasonable, then if I’m prosecuted for a form of
homicide for which negligence or recklessness is an element, then it is no defense.
But Goetz not worried because he didn’t kill anyone. The state of mind required
for attempt is intent to kill.
 Imperfect self-defense (mitigation): SUPPOSE I believe X will use deadly force
to I kill X. The belief was unreasonable. Under traditional law, it is murder. States
adopt intermediate positions. If belief was unreasonable, this is imperfect selfdefense, so mitigates murder down to voluntary manslaughter.
Battered Women’s Syndrome (BWS) and Self-Defense (SD)
State v. Kelly (1984), p.764

Expert testimony should have been permitted. Why? He had gone farther then before by
beating her up in public, then he came at her with fists in public. Isn’t it reasonable that
he might kill her without the expert testimony?
 Court doesn’t want to alter the reasonableness standard but says you can take into
account her background.
 Court says the testimony should have been given to the jury because:
o Credibility is a major issue and the testimony would have informed the
jury that there are reasons why women do not leave the men that are
abusing them.
o Could have an affect (effect?) on how jury assesses reasonableness of her
belief. (But don’t want to vary the standard of reasonableness.) Court says
a woman could be very good at predicting how bad a beating might be.
o Criticism: The testimony is that some women don’t have anywhere to go,
no family, no money. None of this is true of Kelly, do testimony shouldn’t
be admitted.
 If you can introduce evidence here, what about in the case of
Goetz: expert evidence about the high percentage of armed robbery
that is committed mostly by young, black men.
State v. Norman (1989) p.826: Different because here husband was asleep when the wife
killed him. (Kelly court didn’t mention imminence): Held: No self-defense: death
(threat?) must be imminent.
 Court says you can’t do this: Wanted to show that it was reasonable that a battered
woman would believe her life was in danger when in fact it wasn’t and no
reasonable person would have; this court does not allow.
Problem: HYPO: the husband had tied up Norma and dragged her down to the basement,
telling her that he would skin her alive, but he can’t do it now, has to go to sleep. She
freed and she goes upstairs, but can’t escape house so she kills him. Would it make sense
to say there was no imminent attack here? (Maybe he’ll change his mind when he wakes
up.) Here the probability of death is much more, but it is still a question of what might
happen sometime in the future instead of what is happening right now.
 Dolinko says: here there is evidence she tried to get away, etc. So a better case for
applying the general rule of BWS.
 But if you relax the required imminence, how far will this extend? Suppose
Dolinko kills a gang member in fear of retaliation for covering up gang graffiti.
Duty to Retreat
State v. Abbott p.840
HYPO: Ted is an Olympic track star. He is threatened with death by a guy across the
street. The
threatener starts moving toward him slowly with a knife. Ted shoots the assailant with a
gun. In
NJ this is not permitted. Ted has a duty to retreat. (However, there are some states that
don’t
recognize the duty to retreat.)
 If the person has an opportunity to retreat then there is no necessity to use deadly
force.



Critics of the duty to retreat say that because it is manly to hold one’s ground,
there should be no duty to retreat. Feminist critics attack. But also, how often is it
that one knows there is a safe opportunity to retreat (the Hypo above is not likely
to occur). If the assailant really has a gun, you probably can’t retreat with safety.
So as a practical matter, does it really make a difference?
SUPPOSE that Ted does not retreat, he waits for the assailant. When he gets there, Ted
punches him in the head. The assailant falls backward, striking his head, and dies. In NJ,
the argument will be that the rule of retreat only applies where the defender is using
deadly force. Ted punched A and this is not considered deadly force. The death that
occurred here was unforeseeable.
SUPPOSE that A is walking toward Ted in the hallway of Ted’s house. Ted knows there is
a back door through which he can escape. Instead he shoots A. Under states that have a
duty to retreat, Ted has an excuse because there is no duty to retreat in one’s own home.
 A person is not required to abandon the safety of the home.
 The same rule exists under the MPC, §3.04
SUPPOSE that A is actually Ted’s wife, Karen. Karen walks toward him with a knife.
Instead of running, he shoots Karen. Of the states that recognize the duty to retreat, there
is a split of authority. Some states: in general the duty to retreat does not apply if you are
in your home, but it does apply if the attacker also lives there- some states say the
opposite.
 Under MPC, it wouldn’t make a difference.
SUPPOSE you are working as a lawyer in a big firm late one night. A intends to kill you.
In the office there is a back door to escape from with safety. Is there a duty to retreat or
can you kill with a gun?
 Under MPC the workplace is treated like the home, so there is no duty to retreat.
BUT SUPPOSE that A is actually a person who works at the law office with you?
 Now, under the MPC, you do have a duty to retreat. So MPC treats the workplace
differently from the home in this respect. Why is this? Dolinko doesn’t know.
The Initial Aggressor: there are special rules about who starts the fight.
SUPPOSE: A pulls knife on V. V grabs a crowbar, but before he hits A, A stabs V. Can A
use self-defense? NO. A was the initial aggressor.
US v. Peterson: p.843: removing some guys’ windshield wipers in an alley.
 The same result would follow under the MPC, §3.04 and 3.11 (1) definition of
“unlawful force”: there is unlawful force unless there is a privilege to use that
force.
In hypo, A’s use of the knife is unlawful force, but V’s use of the crowbar is not unlawful
because it was used in self-defense. Therefore, A cannot use deadly force.
SUPPOSE A pulls a knife on V, but then puts the knife down. V grabs a crowbar. If A
then stabs V, it is considered self-defense and is permitted under Peterson. If the initial
aggressor makes a good faith effort to withdraw from the fight and communicates that to
V, then A can defend himself with deadly force.
SUPPOSE: A starts a fight by punching V. V then grabs a knife and says he’ll kill A. A
then shoots V. Here, there is a split among traditional Courts.
 Some courts (Peterson) say that the person who started the fight is the initial
aggressor, no matter if the fight is non-lethal. Here A is not excused for self-

defense (he would have had to stop the fight or retreat if possible. If A couldn’t
retreat, then guilty only of manslaughter (added note: imperfect self-defense).
 But other courts say that if A started a non-lethal fight, and V escalated it to a
lethal fight, then A can defend himself with deadly force. This is the MPC
approach.
DEFENSE OF NECESSITY
“necessity” or “choice of two evils”
This is an affirmative defense: it doesn’t negate an element of the crime charged, but
adds an extra factor (in these circumstances, breaking the law was not wrong).
Traditionally the necessity defense applied:
 In a situation in which imminent harm will occur unless the law is broken
 The defendant is not at fault for the situation,
 The harm avoided is greater than the harm caused by breaking the law.
o Case where D is charged with possession of marijuana. D presented
evidence that is was the best medicine for his illness. Not guilty because of
medical necessity.
o But often judges dismiss the case because necessity as a matter of law.
Judge afraid that jury will want to find necessity. (Occurs in cases of
escape, riot, abortion doctor killing, etc.)
See MPC §3.02, Illinois, NY, sections on necessity defense.
HYPO: Friends go mountain-climbing. An unpredicted storm comes up. The climbers are
not prepared so it is likely they will die. But they find an unoccupied cabin and so they
break in and stay there for a few days. They eat the food, burn the furniture for heat, etc.
The are charged with breaking and entering, destruction of property.
 Under IL statute they would have a defense. The storm was not their fault, the
balance of broken furniture v. death of people weighs in their favor, etc.
 Under NY statute: more iffy but will still have a defense. This is a narrower
defense: the conduct must be necessary as an EMERGENCY MEASURE that is
IMMINENT and ABOUT TO OCCUR. So possibly a problem, but there has to be
some common sense (it can’t be that climbers have to wait until point of death.)
Room for argument.
 Under MPC: it would give a defense, but there is a verbal problem with (1) (a).
The harm they were seeking to avoid was death, and this is greater than the harm
of breaking and entering. But the language says that you have to compare the
harm of death to the harm sought to be prevented by the law of theft (it seeks to
protect the whole system of property, which outweighs the lives of three people).
This is not right because there would never be a defense. Look at Hutchins.
(added note: p.813).
SUPPOSE: the facts are the same except that the horrible storm lifts after 3 hours instead
of three days. Also, any reasonable person would have realized that the storm would
certainly dissipate in a couple of hours and was not life-threatening. But the three
mountain-climbers did not realize this—they broke in, etc. and then storm lifted.
 Under NY law is there a defense of necessity? NO because the conduct was not
necessary.
 Under IL statute: NO because the conduct was not reasonable.



Under MPC: Doesn’t require reasonable belief that conduct is necessary, just
belief. But under §3.02 (2): D’s were negligent. So if charged with theft (which
requires purpose) they would have a defense of necessity. They can be charged
with any offense for which negligence is sufficient.
SUPPOSE: They reasonably thought they would die but the storm let up. D’s are worse
off under the NY law because no necessity. There is a defense under IL and MPC (no
negligence here) provisions:
 Many courts are uneasy with the necessity defense. On one hand, it seems like
common sense to have it—it is an escape clause. But the jury can’t just decide
they don’t like the law, and acquit D on the balancing test (it’s OK to kill the
abortion doctor because don’t want abortions). This is what judges are afraid of.
So interpret it narrowly (severe limits on prison escapes).
Prisoner escapes
People v. Unger (1977) p. 813
Traditionally: defense of necessity was no defense to a prison escape because it is a very
dangerous crime and you don’t want to do anything that will encourage prisoners to think
that they have an excuse to escape. Prisoners already have an incentive to escape. Other
prisoners might support the lying story
Held: Unger can present the evidence and let the jury decide – do the balancing test.
Court cites a case that took an intermediate position: Lovercamp case that relaxed the
traditional rule – you can use the defense provided that certain conditions are met:
1. Specific threat of death, rape, or GBH in the immediate future
2. No opportunity to resort to authorities (or a history of futile complaints)
3. No opportunity to resort to the courts
4. No force/violence toward prison guards or other innocent people
5. Immediately turn himself in once he has obtained a position of safety from the
immediate threat
This is the position of the Courts in CA. These conditions are decided by a judge who
then says whether evidence can be presented to a jury. Meant to screen out those who
really just wanted to escape. Criticism: these requirements are unrealistic. Here: Unger
Court says you don’t need all of those requirements.
Where an innocent life is taken
Dudley and Stephens:
SITUATION where someone has killed an innocent person (someone who was not
attacking D), should a defense of necessity be permitted? Dudley and Stephens rejects
that idea
 The MPC takes a contrary position. Here a choice of evils defense is
available even to the crime of murder. It is relentlessly utilitarian in focusing
on what is the greater harm. In D and S situation, it is a less harm to kill one
person than four
 But what about situation where four people are dying of various organ
malfunctions. Can a doctor kill a healthy person for the organs to transplant?
No.

DEFENSE OF DURESS
Traditional requirements:
1. Immediate / imminent threat
2. of death or GBH
3. that it is reasonable to believe
4. Not applicable to murder (sometimes it was killing of an innocent person)
CA has adopted these 4 requirements
State v. Toscano (1977) p. 896
If you were in a state like CA, would Toscano have a defense? Here Toscano committed
fraud – he prepared a false medical report used to fraud the insurance companies. Dude
said that if he didn’t do it he would jump at shadows at night. There is a problem w/ #1,
immediacy or imminent threat. Also #2, it is not clear there is a threat of death or GBH.
Held: Under traditional law it would not be a defense, and this is what happens at trial.
 Under the MPC 2.09 – is there a defense? MPC does not include requirement
#1, immediacy, and #2, threat of GBH or death. BUT the MPC does have the
requirement that the threat is such that a person of reasonable firmness in the
situation would be unable to resist. Under MPC there would be enough
evidence to go to the jury, then the jury decides.
Difference between defense of duress and defense of necessity (p. 904)
Excuse (I did bad but look at this) v. justification defense ( I didn’t do the wrong thing).
 Traditional view
o Traditionally the defense of necessity had the limitation that the danger
be caused by a natural force and duress is for a threat by another
human
o Both were traditionally thought to be about choosing the lesser evil. It
does look like duress is a choice of evils and blends w/ necessity
o But duress could be used to do something that was the same as the
threat – so not choosing a lesser evil – therefore it had to be an excuse
 Modern view
o Defense of choice of evils (necessity) is used for threats by both
natural events and threats from people. So either duress is not needed
at all, or duress is not about the choice of evils. Instead, it is an excuse
defense.
o Weird gap: Suppose D is confronted w/ a bad dilemma, but the
breaking of the law is not the lesser evil. The source of the dilemma is
a natural force, not human. There is no defense that covers this. E.g.
on p. 905(b).
MPC relaxes the traditional requirements of duress (also does not have #4).
 SUPPOSE D is a painter that spends 7 yrs. on his work. But then some
criminals threaten that they will destroy the painting unless he helps them in
their scheme. Is there a defense? NO. MPC’s defense of duress does not apply
to anything but D’s own person or the person of another.
 But what if a reasonable person in this situation would be unable to resist the
threat, and the crime done is relatively minor? MPC doesn’t care – no defense.



Is a reasonable person by definition one who would not commit a crime unless
threatened with life?
SUPPOSE that the threat to Toscana is that rats will be let loose in his house.
Toscano has a pathological fear of rats. Is there a defense under MPC? NO.
Toscana hasn’t acted as a person of reasonable firmness. Should the defense
be subjectivized?

DEFENSE OF INSANITY (excuse defense)
Generally: This is about the claim that at the time of the offense, D was legally insane so
as to create an excuse defense to criminal punishment. It doesn’t negate any element of
the crime (this is controversial) – it is possible to have an insane person who did the actus
reus with the required mental state. It is not a failure of proof defense, not about negating
mens rea.
 E.g. the killer knew he was killing someone, intended to kill, and in addition,
was severely mentally ill (insane). Though in special cases, insanity might
cancel out mens rea (Dolinko can’t think of a situation where it happened)
 P. v. Stress, 205CalApp3d 1259 – D’s son learned he wouldn’t be drafted by a
pro-football team, though he would be drafted by army (1969). Stress decided
to kill his wife to get public attention. D convicted of murder and found sane.
So he acted with intent to kill, premeditation etc, but retrial was the issue of
insanity.
Note: There must be a relationship between the insanity and the criminal conduct so that
it is proper to hold D not guilty of the crime.
State v. Crenshaw (1983) p. 937 – D followed Muscovite religion. Thought his wife had
been unfaithful, stabbed her. Should his mental illness have acquitted him of theft of the
knife used? Relationship of the mental illness to the theft not the same as the relationship
to the killing. Must be a link between the mental illness and crime committed. Held: Not
guilty. No deific command.
M’Naghten’s Case
Attempt to assassinate the prime minister of England. M was a paranoid schizophrenic –
delusions that the Tory party was out to get him. M accidentally shot another guy,
Drummond. He was acquitted by reason of insanity. Parliament asked the English
judiciary to answer some questions. This is not the opinion of a case, but the answers to
the questions regarding the rules that should govern the insanity defense. These rules set
the law in England and America
M’Naghten’s Rule: At the time of the act charged, the D was suffering some mental
disease or defect that produced on or the other of two results: (1) D didn’t know “the
nature and quality” of the act OR (2) D didn’t know that “the act was wrong”
 This standard created the presumption of insanity: burden of production on
insanity issue rests on the D (This still survives everywhere) D must introduce
some evidence to make it an issue
 Once it is an issue, who bears the burden of proof on the issue? There is a
difference of opinion between states. In 2/3 of states, the burden of proof is
on the D, by a preponderance of the evidence. In the federal system, D has

the burden of persuading trier of fact that D was legally insane by clear and
convincing evidence (higher than P of E, less than reasonable doubt). If
insanity did negate a required mens rea element, P would have the burden.
 In CA M’Naghten definition is used.
Criticism of tests:
 What is the mental disease of defect? Alcoholic, how IQ, post-birth defect,
etc?
 In M’Naughten test, what does “the act was WRONG mean?” (The first (1)
part is hardly ever used). Legally wrong, morally wrong, by society’s
standards, individual’s standards?
o The Judges in M’Naughten seem to be thinking of morally wrong
(would make insanity defense more available)
o In cases, juries are typically given no instruction whatever as to what
“wrong” means. In CA, Court says that “wrong” means legally wrong.
Later, CA changed and said it means morally wrong. Does it matter in
practice? If jury believes D is psychotic, does it matter to them if the
act was legally wrong?
Rationale for insanity defense: Should a person who has a mental disease be treated like
a criminal or as a sick person.? In Porter, the MN rule is explained by saying that D
could not have been deterred by the threat of criminal punishment. But there are
problems of this explanation
 It is not so clear that ill people are undeterrable. Staff at mental institutions
relies on a reward/punishment system and they can conform to rules. Also
cases where person acted to accomplish the goal so as not to be deterred
 Even if they couldn’t be deterred, why not punish them, because other people
might still be deterred.
 Maybe there is a reason beyond deterrence – it would be unfair to this
particular person to criminally punish him.
Note: No reason to argue insanity if the case is not serious.
Hatfield case where acquitted but didn’t satisfy M’Naughten- happened before it. D shot
at king of England. Believed it was his divine mission. D was acquitted on grounds of
insanity.
 Under the MN rule standard, (1) he knew the “nature and quality” of the act.
(2) he did know it was wrong because he did it so that he would be
condemned to death so he could be like Jesus. So critics think MN test bad
 WHAT KIND OF WRONG? P. 938 the Crenshaw case, P. 940 Porter case:
about whether “wrong” means moral wrong or legal wrong.
o P. 940 it is “wrong” according to the reasonable standards of society.
Here Hatfield knew it was wrong according to society
o But he actually believed that killing the king would help society. So in
the deeper sense (p. 965) he didn’t actually understand the act was
wrong. He did not have the proper emotion when contemplating the
act. But what actually is this “deeper” way.
Irresistible Impulse test: A supplement to MN



MN standard is too cognitive. It asks whether D’s illness results in D not
“know” what he was doing. Suppose D knows that what he will do is wrong
but D believes that unless he does it, Satan will destroy the earth. So it should
rather be that D couldn’t control his conduct:
 The test isn’t about whether the impulse is sudden, the point is whether the
mental illness deprived their volitional control (as opposed to cognitive
control) over committing the crime. But either way, there is the problem
about how you decide. The question is “could D have resisted?” Criticism:
you can’t decide (Lyons case p. 949: supports this view.) Green case p. 959:
where D killed officer – he was messed up. How can you decide in Green
case where for all the years he wasn’t violent – does this mean that he could
have continued to control himself, or it had built up and this time he couldn’t.
 Usually don’t use the first prong of the MN test. So some Courts drop the
first prong and substitute it for the irresistible impulse test – so there is a
cognitive and a volitional prong. Not all critics thought that this additional
helped the MN test.
The Durham Standard (product test or “but for”): D is not criminally responsible for
conduct that was a PRODUCT of D’s mental disease or defect (p. 944-945). This test
only lasted 18 years – thrown out in the Brawner case. It was felt that this standard gave
too much power to the psychiatrist testifying. Product meant only “but for” consequence.
So a huge burden for P to show that had D not been mentally ill, would he still have
committed the crime. So just ask the psychiatrist if it is a mental disease (p. 945 where
changed the label and changed convictions)
 The defense of insanity is not supposed to be a primarily medical problem.
The conclusion that D ought not to be held criminally responsible is a moral
or ethical judgment – what would be right or fair to hold this person liable,
given their mental problems. You don’t want to give full power to
psychiatrists.
BIG ALTERNATIVE TO MN that is still enforced: The MPC version or ALI test.
(retreated from after Hinkley case but still followed in some states)
MPC §4.01
(1) D lacked substantial capacity to appreciate the
criminality
(or wrongfulness) of the act [cognitive]
Mental disease or defect
(2) D lacked substantial capacity to conform to the
requirements of the law [volitional]
MPC altered the MN test so that it retained the essential framework, but accommodated
concerns of the critics. But there are still problems even with this standard
* Case of where Sweeney killed a Congressman that he previously had known.
Sweeney was a paranoid schizo, had voices, shot the Congressman. (1) he knew that
killing was wrong, how do you decide if he appreciated it? What is the relationship

between the mental illness and the lack of appreciation? (2) For 12 yrs. he had resisted
the impulse so why couldn’t he do it now?
All of these tests take the form of requiring a mental disease [that] produces a certain
result (the prongs). But if you look at the prongs, in a sane person, they would not have a
defense. Why put this normally criminally responsible result with mentally defect and
call it insanity? Hard to understand. Everyone favors (1) but it has the least to do with
criminal responsibility.
All is pointless, because does it have impact on what the jury decides anyway?
DIMINISHED CAPACITY
Confusing and controversial –abolished twice in CA
It has been used to describe two different kinds of defense.
1. failure of proof: negatives an element of the crime (=mens rea)
2. affirmative defense: does not
US v. Brawner:
Which version is the Court talking about? Failure of proof. Allowing evidence of
D’s mental impairment that does not meet requirements of insanity, to be admitted
to negative mental element of the crime. D’s mental impairment precluded him
from having capacity to have a certain mental state (e.g. no capacity to
premeditate).
 Or People v. Whetmore (not about lack of capacity, but just that he didn’t) where
D put on evidence to show that because of problem he had delusional belief that
he owned V’s apartment –charged w/burglary-so if true, he didn’t have the mens
rea.
[Side notes: evidence shows that it was impossible to form mental state for crime]
 Brawner allows this defense only for specific intent crime.
 MPC 4.02 permits negation of the mental state for any crime at all.
 Ohio Court in Wilcox rejects the defense altogether. Here D wants to say that
mental state does not satisfy the insanity defense standard, but there is evidence
that would show that he was not able to form a purpose to kill or to commit a
felony- so not guilty. How is Ohio justified in rejecting this testimony? (The
court does not seem to keep the two forms separate.
o Don’t need diminished capacity to compensate for overly restrictive
[McNaugton] insanity. We have already liberalized defense of [MPC]
insanity. Problem: this is irrelevant, D is contesting element of the crime,
doesn’t want to claim he was legally insane.
o When DC is successful, what is the result? A mentally ill offender gets a
shorter sentences, or is sent home (w/insanity, at least D gets sent to a
mental institution). Problem: getting acquitted is the point of this –the
purpose to do it wasn’t there.
o Too hard for juries to make the determination the D requires=have to make
subtle distinctions more so than in insanity defense. Subtle distinction
among people who are sane-just did they lack the purpose…
 This is more persuasive, but yet, is it really true that the question
involved with the insanity defense is easier than with diminished

capacity? Either way, the jury has to assess D’s mind to find
whether D intended to kill.
The EMED of MPC provocation is an example of the affirmative type diminished
capacity defense.
Be careful to figure out which defense is being spoken of. The affirmative approach
defense: (diminished capacity) responsibility for the crime is less than that for an
ordinary person because D is not ordinary. This is permitted in Europe. In US this
approach is disfavored.
 MPC only allows diminished capacity as a failure of proof defense. However the
provision that does seem to incorporate this idea is EMED for murder.
CA went further than any other state in permitting affirmative defense approach. What
was bad is that CA would re-define the mental elements of the crime so the defense
would negate them. (CA didn’t want mentally impaired people sent to death row, so
broadened diminished capacity.) Re-definition of stuff:
Wolf, 61 Cal.2d 795
Conley, 64 Cal.2d 310
Eventually there were objections, and diminished capacity was abolished (statute p.
10005 at bottom) even as a failure of proof defense. Then MPC got rid of the
redefinitions. Then DC got abolished again. But a loophole. People v. Sale, use [of]
evidence of mental disease can still be admitted as to whether D actually formed the
mental state required (just not whether D had capacity to form the mental state). How
would you show one with out the other? What is the difference?
[side notes:
Skinner case (came after Perez) where the court said wrong means morally
wrong.
Perez case –wrong means legally wrong.
Typically juries aren’t told moral vs. legal. ]
GOOD LUCK!!

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