Criminal Law Outline

CRIM LAW OUTLINE
BASIC REQUIREMENTS
Actus Reus – Willed bodily mov’t; omissions; vol. intox. MPC 2.01
Omissions – Gen. no duty to act except if duty imposed by statute,
common law duty/rel’nship (husb/wife; parent/child); contract. MPC 2.01
Mens Rea – broad: culpability; narrow: elemental, prov’d by def’n
-Intentionally – 1) desire/conscious object or 2) acts w/ knowlg that harm
is virtually certain to occur (syn: willfully)
-Specific-Intent – extra purpose (burglary, larceny)
-General-Intent – vol. doing of prohibited act w/ extra purpose
MPC 2.02 on Mens Rea: steps:
1) ID material elements of crime + 2) determine mens rea for each
Purposely-conscious objective to engage (conduct+result); knowledge of
circumstance or believes or hopes they exist (circumstance)
Knowingly-aware that conduct is illegal; knowledge of circumstance;
aware result is practically certain to follow
Recklessly-Consciously disregards substantial & unjustifiable risk
Negligently- when D should’ve been aware, inadvertently creates
substantial and unjustifiable risk
*if no mens rea in statute; element established if purpose, know, or reckl.
HOMICIDE
MURDER-killing w/ malice aforethought. Malice:
1. Intent to kill (infer intent w/ deadly weapon rule)
-If Willful, Deliberate & Premeditated → M1
2. Intent to inflict great bodily harm → M2
3. Depraved Heart (extreme reckless disregard for val. human life → M2
(e.g., Russian roulette, shooting in crowded room)
4. Felony-Murder (F-M)-death resulting from commission of a felony
MPC 210.2-Murder-killing purposely, knowingly, or recklessly
manifesting extreme indifference to life (*No F-M)
F-M Rule-strict liab (SL) no regard to mens rea (still req: causation)
If predicate felony is specified (arson, rape, robb’ry, burg’y → FM1; if
not, FM2); F-M extends to an accomplice to felony
F-M Limitations:
1) Only inherently dangerous felonies – predicate fel=inher. Dang.
-case-by-case analysis; CA-examine predicate fel. in abstract
2) Merger Doct’n-F-M only if predicate is independent/collat of homicide
-test: Does not merge if assaultive conduct = “indep. felonious purpose”
-test: CA: would application of F-M to this felony expand F-M too much?
-test: Chun – predicate merges if felony is “assaultive in nature”
3) Killings Not in Furtherance –if homicide did not happen during crime
req: 1)time&distance req. *temporary safety?* 2) causation
-No F-M after fel. has ended (i.e., Δ reached temp. safey); app. dur. escape
-Not in furtherance-if accomplice’s unanticipated act’n was not in
furtherance of the crime (e.g., robbery then accomplice ends up raping!)
-Killings by non-felons: 1) Agency approach-No F-M for killing by
someone other than Δ or Δ’s associates (No F-M if accomplice is killed by
cops or victim) REBUTTAL: Provocative Act Doct.-form of DPM
(extrm. Recklessness) if Δ’s conduct would have triggered the killing
2)Proximate Cause (minority) – F-M applies to any death that is
proximate result of the predicate felony
MANSLAUGHTER – unlawful killing w/o malice aforethought.
Voluntary Manslaughter - Must meet:
1) “Heat of Passion”
2) (Legally) Adequate Provocation (objective)
-no trivial battery, mere words, observation of adultery
-OK for aggravated assault, mutual combat, serious crime re: relative
3) Before “cooling time” elapses
MPC 210.3 Manslaughter: (1) recklessly w/o manifesting extreme
indifference to value of life; OR (2) murder mitigated by extreme mental
or emotional disturbancefor which there is a reasonable explanation or
excuse (EMED-subjective Δ’s viewpoint as he believed ; reas-objective)
Involuntary Manslaughter – killing recklessly or w/ gross negligence
(>civil negligence; gross deviation); MPC 210.4-Negligent Homicide
MISTAKE OF FACT gen. failure of proof
1) ID nature of crime (SL, Specific or Gen Intent?) 2) Apply rule
SL – MOF is not a defense (no mens rea req.) Typically for malum in se
crimes like child molestation or malum prohibitum crimes, court looks to:

Is crime recent/statutory? Can crime injure ↑ amount of people? Does
crime have ↑ penalties? Does conviction carry ↑ social stigma? Is
reasonable care the only requirement?
SPECIFIC-INTENT – MOF is a defense if it negates the specific-intent
portion of the crime (even if MOF was unreasonable, lacked mens rea)
GENERAL-INTENT-MOF is a defense only if it is reasonable
-Lesser Crime Doc.-D reasonably thought he was committing less serious
crime Y but can be convicted of a more serious crime X (w/ ↓ mens rea)
-Moral Wrong Doc.-No MOF even if Δ’s MOF was reasonable, if he still
demonstrates moral culpability worthy of punishment. GUIDANCE: 1)
Was MOF reasonable, 2) If YES, look through Δ’s perspective then
evaluate morality of Δ’s conduct as seen through Δ’s perspective
MPC 2.04 on MOF: MOF is a defense if it negates mental state req’d to
establish any element of the offense; 2.04(2) MOF Def. not available if D
would be guilty of another offense, had circumstances been as he
supposed (but punishment only for lesser offense)
MISTAKE OF LAW
Generally, direct MOL is not a defense (to SL & general intent crimes)
b/c crimes don’t normally require as an element, awareness of its own
existence. Not permitted when Δ relies on his own interpretation or atty’s.
EXCEPTIONS-MOL is a def. if
1) Δ reasonably relied on official statement of law, later invalidated, or
erroneous interpretation of someone responsible for interpreting
2) Δ did not have fair notice (Lambert; why? Punished omission, duty
imposed on basis of “status” and not an activity; offense: mal. prohibitum)
3) Collateral (different law) mistake – failure of proof – if it negates the
specific intent in the prosecuted offense (MOF parallel for specific intent)
-(a) statute requires knowledge of prohibited conduct Cheek
-(b) D’s MOL relates to a law other than offense being charged
MPC 2.04 on MOL: Gen. Rule: Unless def’n of crime provides, MOL is
not a defense. Exceptions: Reasonable reliance, fair notice, Ignorance of
Law that negates mens rea – generally, this is a different law mistake)
CAUSATION – usually for crimes w/ result element
Actual (but-for) Causation- But for Δ’s voluntary act, would social harm
have occurred when it did? If NO→ Δ’s action was an actual cause (there
can be concurrent causes)
Proximate Causation-Generally – was harm foreseeable? (not in F-M) If
YES→D is liable
- Direct cause- is also the proximate cause
- Intervening cause-another “but for” cause that operates to produce harm
(if foreseeable, D is liable; an unforeseeable interv. cause is superseding)
- Superseding cause-intervening cause that breaks causal chain
FACTORS THAT MIGHT BREAK PROXIMATE CAUSATION:
1) Responsive (dependent) Interv. Cause-an interv. cause that happens
as a reaction or response to Δ’s conduct (e.g., D injures V, V receives
negligent med treatment; or recklessly risking result-running after V and
V crosses street and is run over)
2)De minimis contribution – when Δ’s act is insubstantial in comparison
to inflicted harm (e.g., D inj. V, V on way to hospital is struck by lighting)
3)Coincidental (independent) Interv. Cause-unforeseeable force that
does not happen as a reaction to Δ’s initial conduct (raging maniac @
hospital stabs V to death)
4)D’s mens rea – Intended consequences can never be too remote. In
situations where ultimate harm to V is one that Δ intended and also the
means/manner of harm was what Δ intended (Mom gives nurse  to kill
V, Nurse leaves  on table where V’s friend takes it and gives it to V).
5)Apparent safety doctrine – When Δ’s active force comes to rest → not
prox. cause i.e., superseding cause: D assaults V, who runs away to
safety, but chooses to stay outside instead of in parents’ home, V freezes.
6)Free, Deliberate, and Informed Human Intervention-see #5; V’s
FDIHV breaks the causal chain and Δ is not guilty. Campbell not guilty
even if he provides gun and encourages V to commit suicide. Stephenson
guilty when he tortures V who then commits suicide with . (Guidance:
the more vile Δ’s actions, the more a court is willing to extend prox. caus)
7)Omissions-rarely supersede an earlier wrongful act even if the
intervening actor had a duty to act (e.g., father failed to intervene to
prevent attacker from killing her child)
MPC 2.03 on Causation-Uses “but for” analysis; 2.03(2)-if result is what
Δ intended or foresaw, then Δ is guilty (w/ culpability required for crime,

of course). If result is not what Δ was trying to achieve, still on the hook if
the only difference is level of harm or another person or thing was
harmed; or result is same kind of harm and result is not too remote.
ATTEMPT – inchoate, a specific-intent crime
Complete attempt-actor performs all the acts that she set out to do but
fails to attain criminal goal
Incomplete attempt-when actor does some of the acts necessary but quits
or is prevented from continuing
RULE: (1) Δ must intentionally commit the act constituting the actus reus
of an attempt; and (2) Δ must perform these acts with the specific intention
of committing the target crime
Mens rea for result crimes: Δ not guilty unless his actions in furtherance
of prohibited result are committed w/ specific purpose of causing unlawful
result. (no such thing as attempted involuntary manslaughter & most states
say no to attempted felony-murder). *mens rea for attempt can sometimes
be ↑ > target crime e.g., attempted murder req. specific intent to kill; but
reckless (DPH) can be enough for murder.
Mens rea for conduct crimes: same mens rea for target crime (e.g.,
attempted reckless driving by putting blindfolds before starting car)
Mens rea for Attendant Circumstance: depends, see statutory rape,
some say that if Δ is reckless as to the V’s age, then guilty of attempt.
Others say if offense is SL, then no special requirement req’d.
Actus reus for attempt: (preparation v. attempt): TESTS:
-Last Act-(rejected, impractical) liable only if Δ performed all acts she
believed were necessary to commit target crime
-Physical Proximity-Direct mov’t toward committing offense; power to
commit crime almost immediately
-Dangerous Proximity-When Δ is dangerously close to success-consider
in terms of 1) nearness of danger, 2)greatness of harm, 3) degree of
apprehension felt
-Indispensable element-No attempt unless Δ possesses necessary
instrumentality to commit crime (like a gun for murder)
-Probable Desistance-Attempt if Δ reaches a point where he would’ve
voluntarily discontinued his efforts to commit crime
-Equivocality Test-Attempt if Δ’s conduct alone unambiguously shows
criminal intent.
MPC 5.01 on Mens Rea for Attempt (subjective) 1) Is attempt complete
or incomplete? 2) Is it a result crime or a conduct crime?
-COMPLETE ATTEMPT → RESULT CRIME → MPC 5.01(1)(b) → Δ
must have PURPOSE or BELIEF
-COMPLETE → CONDUCT → MPC 5.01(1)(a) → Δ must have
PURPOSE (ATTENDANT CIRCUMSTANCE Required: It is enough
that the actor possessed mens rea required to commit the target crime)
INCOMPLETE ATTEMPT → MPC 5.01(1)(c) → “Substantial Step” →
MPC 5.01(2) – step must be strongly corroborative of Δ’s criminal
purpose (e.g., lying in wait, investigating place, possession of materials)
*MPC 5.01(3) Attempting to Aid: Different from common law, Δ can be
convicted of attempt even if the crime was not committed or attempted by
another if (1) Δ has purpose to aid and (2) assistance would have made Δ
an accomplice [X-reference to MPC 2.06 Accomplice Liability]
DEFENSES TO ATTEMPT
Factual Impossibility-not a defense to a crime; happens when Δ fails to
consummate crime b/c of an attendant circumstance that Δ doesn’t know
or beyond her control (e.g., attempt to pick pocket but pocket was empty)
Legal Impossibility-sometimes a defense. Δ thinks he’s committing a
crime but commission is impossible because of a factual mistake regarding
the legal status of some attendant circumstance that makes up an element
of the offense (e.g., D receives unstolen property thinking it was stolen)
[*NOTE:you can frame this as factual impossibility, Δ wants it to be legal]
Pure Legal Impossibility-always a defense, when law does not make Δ’s
goal illegal (doing something that’s legal with a guilty conscience like
selling booze after repeal of prohibition).
MPC 5.01(1)(a)-(b)-impossibility replaced/abolished b/c of focus on
subjective (if D receives unstolen product but believes it to be stolen, she’s
guilty under (1)(a) – completed attempt, conduct crime

ACCOMPLICE LIABILITY – DERIVATIVE; agreement not req’d!
Gen Rule: Δ is an accomplice of P is he intentionally assists P to engage
in the conduct that constitutes the crime. Δ’s liability is derived from P!
Actus reus: The type of assistance includes physical (driving getaway
car), psychological (encouragement), or an omission (if one has a legal
duty to intervene + requisite mens rea for accomplice liability)
Common law: No liability if S performs an act to assist but is
unsuccessful (shouting words of encouragement but P did not hear them);
but if Δ has helped, amount of aid is immaterial
Mens rea: RULE: Accomplice if Δ (1) possesses intent to aid/encourage
P to engage in the (actus reus) conduct (or the result) constituting crime
and (2) the mens rea of the substantive crime.
Issues:
-Feigned Accomplice – Accomplice must have both intents to be
convicted as an accomplice, if he doesn’t have mens rea, no liability
-Purpose v. Knowledge-Most courts hold that intent=purpose
(community of purpose in criminal undertaking) Knowledge not enough.
-Recklessness or Negligence-Most courts hold that accomplice liability is
allowed for these crimes as long as accomplice has both mens reas
-Attendant Circumstances-As long as S acts w/ purpose of assisting P in
conduct constituting offense & has culpability req’d as to prohibited
result, if any, he is an accomplice if his culpability as to attendant
circumstance would convict him as a principal
-Natural and Probable Consequences – (foreseeability) S is liable for
other crimes that are natural and probable consequences of the crime he
aided and abetted (1)Did P commit target crime X? (2)Did A assist P as an
accomplice in commission of X? (3) If YES, did P commit other crimes?
(4) If YES, were crimes reasonably foreseeable consequences? [NPC
allows accomplice to be convicted of higher crimes than his level of
culpability]
A&P’s relationship
-A can be guilty and P NOT guilty (non-prosecution also doesn’t mean
that a crime could not occur, P could’ve been immune, or had died)
-A’s liability must derive from someone else’s crime
-If A coerces X to commit theft, X is an innocent instrumentality, so A is
liable for committing crime through X
-If P is justified→ S can share in justification defense
-If P is excused→ excuse is personal to P, S is still liable
-If P lacked mens rea→ P did not commit crime → no crime to derive from
-If P is feigning party→ P did not have mens rea → no crime to derive
-S can be convicted of a lesser offense than P (i.e., ↓ mens rea)
-S can be convicted of a greater offense than P (ex.#1: homicide – S’
culpability is weighed by his mens rea (P did actus reus, P could’ve had an
excuse like provocation) (Ex.#2: not always if the greater harm did not
occur – S hired P to inflict GBH on husband, P only did simple battery,
GBH did not occur, so even if S had higher mens rea, no higher crime can
be derived!)
Limits to Accomplice Liability
-Legislative Exemption – if S is protected class (child & statutory rape)
-Abandonment – if S (1) communicates withdrawal to P and (2) makes
good faith effort to neutralize prior assistance
MPC 2.06 on ACCOMPLICE LIABILITY
S can be liable through an innocent instrumentality 2.06(2)(1),
miscellaneous liab (i.e., legislative enactment), or std accomplice liability
2.06(2)(c) – MPC limits liab for specific offense [no natural & prob cons.]
-Conduct 2.06(3)(a) – solicitation, aiding, agreeing to aid, omission
(duty+purpose of promoting commission of offense) ***Note that even if
S is not liable as accomplice, under 5.01(3), he may be liable for
attempting to aid in commission of offense
-Purpose is required for accomplice liability (knowledge is not enough)
-2.06(4) S may be liable for crimes req. negligence or recklessness if 1) he
was an accomplice in the conduct that caused result and (2) acted w/
culpability req’d re: result sufficient for commission of crime
-MPC is ambiguous re: attendant circumstances
-MPC rejects natural-and-probable consequences doctrine (liab does not
extend beyond purpose that he shares)
-MPC 2.06(6) LIMITS: victims can’t be accomplices, or if S’ conduct is
inevitably incident (e.g., buyer of drugs is not accomplice in crime of sale
of controlled substance); abandonment if S (1) neutralizes assistance; (2)
gives timely warning to cops; and (3) tries to prevent crime in other way

CONSPIRACY – specific intent; does not merge w/ target crime
RULE: Δ is guilty if, w/ intention or purpose or furthering commission of
that crime, Δ agrees w/ at least 1 other person to further that crime (+
overt act if req’d by jx)
Good for prosecutors: kicks in earlier than attempt, one overt act for all,
exception to hearsay, venue shopping, sweep even less culpable into same
trial Pinkerton Doc. – conspirat. liab. For natural and prob consequences
of the conspiracy; broader than accomplice liab.
Actus reus: the agreement (express is not req’d and can exist even if not
all parties know every detail of agreement or every person involved;
proven by direct or circumstantial) and;
Overt act – (not req’d @ C/L) in furtherance of the conspiracy and it does
not have to be illegal (e.g., legal purchase of a gun) [diff. from actus reus]
Mens rea: RULE: 2 or more persons (1) intend to agree; and (2) intend
that the object of agreement be achieved (b/c of specific-intent nature,
culpability req’d for conspiracy may be ↑ than target crime)
-most states require purpose, which may be inferred from Δ’s knowledge
of customer’s plans *special interest (a stake) OR the aggravated nature
of the crime itself. Also: (1) selling goods + stake in the outcome; (2)
selling at grossly inflated prices; (3) illegal volume grossly
disproportionate to legal business; (4) Δ’s goods or services have no
lawful use (if crime is serious enough, knowledge may be enough to prove
intent/purpose)
Mens Rea re: attendant circumstances – not clear whether conspiracy
requires a higher mens rea, FEOLA (conspiracy to assault a federal
officer) does not require any greater mens rea than embodied in
substantive offense (assault) [states don’t have to follow Feola] facts that
↑ gravity of offense doesn’t convert innocent conduct into criminal
Corrupt Motive Doc. – in addition to mens rea (intent to agree + intent to
commit substantive offense), the parties must also have a corrupt-motive
for their actions. This carves up an exception to the rule that mistake of
law is not a defense to malum prohibitum crimes (morally innocent but
illegal)
MPC 5.03(1) Mens Rea – Conspiracy req. that agreement be made with
the purpose of promoting or facilitating commission of substantive
offense. Not guilty unless the object of the agreement was to bring about
prohibited result or conduct to occur. Limited to the object of conspiracy
(if arson, then if people die, the conspiracy can’t also be to commit
murder, unless they conspired to kill people inside building).
MPC 5.03(1) Actus Reus – agrees to commit, attempt to commit, solicits
to commit, aids to commit
-MPC does not recognize Corrupt Motive Doctrine b/c MPC abandons
strict liability crimes, so no need
-MPC leaves it up to the courts to determine mens rea for attendant
circumstances
-MPC (5.04(1)(b)/5.03(2)) is subjective – unilateral view – no need for a
reciprocal relationship, Δ can be convicted even if the other party was
feigning agreement or insane.
SCOPE: Why important? (1) affects # of conspiracy charges (2) broadens
conspiratorial liability (3) hearsay against all (4) joint trial sweeps barely
culpable conspirators w/ bad dudes (5) a single overt act is enough for all
(6) venue.
-For conspiracy, Δ does not need to know identity or existence of
everyone else in conspiracy. But he must have a general awareness of the
scope and objective of the enterprise – a community of interest or
reason to know of each other’s existence.
-Wheel conspiracy – spokes, hub, need a rim around for a complete
wheel. Kotteakos – insurance fraud – no rim b/c each tx was independent.
Anderson – abortion ring – complete b/c each depended on success of
broader venture
-Chain – business setting where each person has a specialized
responsibility dealing with the same subject matter
(distiller→wholesaler→salesmen)
-Chain-Wheel – large conspiracies that have features of both (drug
smugglers→middlemen→NY retailer & LA/TX retailer
-Wharton’s Rule – if a voluntary agreement by two persons is required by
definition of the crime, the parties cannot be prosecuted with conspiracy
(e.g., dueling, bigamy, incest, adultery). EXCEPTION (1) if there are
more parties than is required (3 to commit adultery); (2) if persons
involved are not those necessary to commit offense (2 males conspire for

one to commit adultery with another, X); or legislative exemption – if
conviction of a ‘conspirator’ would frustrate legislative intent (Mann Act –
female is protected)
MPC 5.03(1) & (2) – (1) adopts unilateral approach so Δ is guilty if w/
mens rea, she agrees w/ another; (2) guides when to link parties to separate
agreements commit the same crime (guilty if Δ knows person whom he
conspires with is also conspiring with others to commit same crime)
MPC5.03(3) – multiple objectives guilty of only 1 conspiracy if multiple
objectives are part of same agreement or a continuous conspiratorial
relationship
MPC5.04(2) and 2.06(6)(a)-(b) – Δ may not be prosecuted for conspiracy
if she would not be guilty under law defining crime as an accomplice in its
commission; if victim; or if conduct was inevitably incident to
commission
PINKERTON DOC- Person may be accountable for the natural and
probable consequences of the conspiracy, resulting in broad liability;
agreement is required but no actual assistance is required RULE: (1) if
the act falls within the scope of the conspiracy and (2) is a foreseeable
consequence of the unlawful agreement. [MPC rejects Pinkerton]
DEFENSES: Impossibility is not a defense to conspiracy.
Abandonment is also not a defense because once the agreement is formed
or an overt act is committed, the conspiracy crime is complete. But if Δ
abandons, he might avoid liability for subsequent crimes (Strict! Usually
requires announcing withdrawal to every conspirator and some actually
require successfully dissuading conspirators).
MPC5.03(6) – provides affirmative defense if conspirator renounces
crim purpose and prevents success of the conspiracy
SELF DEFENSE complete (affirmative) defense; justification
RULE: C/L: non-aggressor is justified in using force if:
1) He reasonably believes
2) such force is necessary to protect himself
3) against the imminent use of force
4) and the force used is not excessive (deadly force justified only if actor
reasonably believes the same will be used against him.
Aggressor – one whose affirmative act is reasonably calculated to produce
a fight foreboding injurious or fatal consequences (even if aggressor starts
a non-lethal conflict); some jx require that actor is free-from-fault
Removing aggressor ‘status’ – If ‘deadly’ aggressor → withdraw and
communicate withdrawal; If ‘non-deadly’ aggressor (V responds w/
disproportionate deadly force)→ initial non-deadly aggressor regains right
Retreat-some (minority) jx require that person under attack must retreat
before using deadly force if he is aware that he can do so in complete
safety: (1) if non-deadly aggressor is met w/ deadly response, he must
retreat before using force. If he fails to retreat→imperfect self-defense;
(2) Castle exception – no retreat if you’re in your own home
Imperfect self-defense – mitigates murder to manslaughter if (1) nondeadly aggressor is met w/ deadly response and fails to retreat; or (2)
when one unreasonably believes that use of deadly force is justified
Transferred-justification – If actor justifiably uses deadly force but kills
a bystander, justification is transferred to innocent (cf. trans.-intent)
Battered Woman Syndrome- evidence to ↑ credibility; show why D
subjectively believed that she was about to be killed and that belief was
objectively reasonable; to counteract prejudice-why not leave?-by
showing learned helplessness symptom. General rules:
1) If confrontational→ sufficient to introduce BWS evidence
2) If non-confrontational→ overwhelming maj.: no justification (no
imminence)
3) Hiring a hitman→ definitely not justified
Evidence: relevant to show that Δ’s experience from prior aggression is
relevant to show that she reasonably feared deadly force @ the time
MPC 3.04 on SELF-DEFENSE – RULE: Subject to limitations, justified
in using force if (1) Δ believes that such force is immediately necessary
to protect himself against unlawful force *believes-subjective, but cf.
MPC3.09 incorporating reasonableness if Δ is reckless or negligent re:
facts* and immediately necessary replaces imminence
MPC3.04(2)(b) Self-D permitted against death, GBH, rape, kidnapping.
See MPC3.11 for definition of deadly force

MPC on Aggressors – same as C/L but only for deadly aggressors, then
has to break off struggle; if non-deadly aggressor is met with deadly force,
he doesn’t lose privilege; limited to same encounter (i.e., before retreat!)
BystanderRiskMPC 3.09(3)-not justified if use of deadly force is reckless
or negligent regarding innocent bystanders
NECESSITY (Choice of Evils) – residual justification; affirmative D
RULE: D can use necessity D if he was presented w/ choice of evils – he
must choose between violating relatively minor offense to prevent a
substantial harm to person or property; CONDITIONS:
1) clear & imminent danger
2) action will be effective in averting danger
3) no effective legal way to prevent harm
4) harm > violating law
4) legislative purpose hasn’t weighed balance of harm
5) clean hands
LIMITATIONS: (1) some states limit defense to natural forces; (2)
@C/L does not apply to homicides; (3) no necessity for intangibles like
economic harm or reputation; (4) NO defense for civil disobedience
PRISON ESCAPES: Unger-threat of rape; Lovercamp-strict
requirements: specific threat of death, GBH, or sexual assault; appeals to
authorities and courts are useless; no violence toward innocent people incl.
guards; prisoner immediately reports to cops once he’s safe
MPC 3.02(1) on NECESSITY- justified if (1) he believes conduct is
necessary to avoid harm; 2) harm avoided is greater than harm sought by
law avoiding conduct; 3) no legislative intent to exclude conduct
MPC is broader, it rejects imminency req.; also rejects clean hands; and
applies even for homicide prosecutions
DURESS excuse; affirmative D; coercion by another person
RULE:
1) Actor faced immediate or imminent harm from another person
2) threat was death or GBH to himself or another relative
3) that was reasonable to take seriously
4) actor not at fault for being in that situation
5) trad: no homicide/murder (some jx mitigates via imperfect duress)
*Unlike necessity which is justified and helpers are not liable because no
crime was committed; duress is personal to the actor and any
“accomplice” is liable because someone has to be blamed!; duress also
applies even if coerced actor commits the greater evil
Prison escapes – can be analyzed under DURESS but rarely, because
usually, actor-prisoner is not being coerced to escape; prison escape is
excuse so helpers (helicopter pilot) may be found liable
Situational Duress – another excuse, expands duress to cover natural
forces as a coercer (Regina v. Dudley & Stephens)
BWS can also be admitted for duress along with learned helplessness
MPC 2.09(1) RULE: affirmative defense is (1) D was compelled to
commit offense by use or threated use of force and (2) a person of
reasonable firmness in her situation would’ve been unable to resist;
MPC 2.09(2) – doesn’t apply if actor recklessly placed herself in the
coercive situation. If she negligently placed herself, D is available for all
offenses not requiring negligence.
-MPC abandons imminent threat (see Toscano – insurance fraud coercion
case); and is available for homicides too
-Like C/L – MPC only applies duress to human coercion (no situational
duress), and protects only bodily injury; BWS tempered by “person of
reasonable firmness)
INSANITY – excuse; individualized
1) M’Naghten Test (Cognitive) – insane if, @ time of act, person
suffering from mental disease or defect that resulted in (1) not knowing
the nature and quality of the act or (2) if she knew that, she didn’t know
the act was wrong.
-“know” – can be defined narrowly or broadly
-“nature & quality” – squeezing a lemon but really squeezing V’s neck
-“wrong” – AM cts are split bet. Moral v. legal wrong (if moral, whether
D violated societal standards – objective)
-many jx follow M’Naghten Test, pretty narrow test
2) Irresistible Impulse (Control) – Add to M’Naghten. Insane if (1) acted
from irresistible & uncontrollable impulse; (2) lost power to choose

between right and wrong and free agency was destroyed; or (3) D’s will
has been otherwise completely destroyed and out of her control
-still narrow, b/c req. total incapacity and excludes non-impulsive
behavior
3) ALI/MPC 4.01(1) Test – (1) Mental disease or defect she lacked (2)
substantial capacity to appreciate criminality of conduct [cognitive] or
(3) substantial capacity to conform conduct to requirements of the law
[control]
-uses appreciate not “know”
-avoids impulse. Also modifies “substantial capacity” instead of total
incapacitation required by pervious tests
4) Durham Rule (broad, least used) D not criminally responsible if
unlawful act was caused by a mental disease or defect
5) Federal Test – By clear and convincing evidence, as the result of
severe mental disease or defect, she was unable to appreciate (1) nature
and quality of conduct or (2) wrongfulness of her conduct
DIMINISHED CAPACITY
Two categories where actor’s abnormal mental condition short of
insanity will occasionally exonerate or more often, mitigate a crime.
MENS REA FORM – FAILURE OF PROOF DEFENSE
- Failure of Proof - evidence of abnormal mental condition is introduced
to negate mens rea (usually). D was so mentally disturbed that D could not
or did not form the mens rea for the crime. Some states limit this defense
to specific-intent crimes like murder
Practically: this functions as a partial defense – even when
specific intent crime is mitigated, there’s always a general intent crime
that D can be prosecuted for (reduction from FDM to say, SDM).
- No defense approach – mental condition is only admissible to prove
insanity, not diminished capacity
- MPC approach: Defense to All Crimes – Evidence that D suffered
from mental disease or defect @ time of conduct is admissible if relevant
to prove that he lacked a mental state as an element of the charged offense
DIMINISHED RESPONSIBILITY – AFFIRMATIVE DEFENSE
Usually only a defense for murder. Abnormal mental condition partially
excuses or mitigates guilt even if Δ has requisite mens rea for the crime
(very disfavored). RULE: Evidence of mental abnormality can be
introduced to mitigate murder CA Backdoor approach – disguising
diminished responsibility as a failure of proof defense by allowing a miniinsanity defense by redefining mens rea definition of malice aforethought
– overruled by legislature.
MPC on DIMINISHED CAPACITY 210.3(1)(b) –Mitigates murder to
manslaughter is homicide committed as a result of “extreme mental or
emotional disturbance for which there is a reasonable explanation or
excuse” *Reasonableness of actor’s explanation or excuse for EMED is
determined from viewpoint of person in actor’s situation under the
circumstances he believed them to be (cf. EMED for provocation). **See
difficulty: EMED in diminished responsibility cases is hard because
EMED standard is partially objective while diminished capacity is
subjective.
INTOXICATION
Disturbance of mental or physical capacities resulting from intro of any
substance in the body.
Voluntary Intoxication – When Δ is culpable for being intoxicated
(Usually, being vol. intoxicated is reckless conduct)
-Failure of Proof #1: MENS REA

For general intent – voluntary intoxication is not a defense.

For specific intent – voluntary intoxication is a defense (if
intox. Results in D not being able to form or did not form
specific intent required)
o FDM – Δ may introduce intox. Evidence to support
claim that he did not deliberately kill (mitigate to
SDM-DHM “reckless)
o F-M – If jx recognizes intox defense, Δ may introduce
evidence to show that he did not have specific intent
for the predicate felony
-Failure of Proof #2: ACTUS REUS/VOLUNTARY ACT
-GEN RULE: Although unconsciousness ordinarily precludes liability, it
is not a defense if it was brought on by voluntary intoxication BUT you

can claim that intoxicated actor did not have the voluntary act
requirement (Less common)
-Affirmative Defense/Excuse #1: Temporary Insanity – common law
does not recognize this defense
-Affirmative Defense/Excuse #2: Fixed Insanity – from habitual use of
intoxicants and disorder remains even when not under the influence →
Use traditional insanity defense
Involuntary Intoxication – Δ is not to blame for being intoxicated via:
(1) coerced into taking substance; (2) if person ingests intoxicant by
innocent mistake; (3) if actor becomes unexpectedly intoxicated from Rx
(did not know or had reason to know that Rx was likely to produce that
effect); and (4) pathological intoxication – temporary psychotic reaction,
applies only if actor had to reason to know he was susceptible to such a
reaction. GEN RULE: involuntary intoxication is entitled to acquittal in
all circumstances in which voluntary intoxication is a defense.
MPC 2.08 on INTOXICATION – GEN RULE: Δ is not guilty if
intoxication negates any element of the crime. EXCEPTION: Relates to
crimes of “recklessness” MPC 2.08(2) – if person due to voluntary
intoxication is unaware of a risk that he would’ve known if he was sober,
that unawareness is immaterial for prosecution of crimes requiring
recklessness or +.
-Same with voluntary act if Δ acted while unconscious, then involuntary,
even if self induced
-Intoxication as an Affirmative Defense – Even if all elements of the
crime are satisfied, MPC recognizes intoxication as affirmative defense if
(1) the actor suffered from pathological or involuntary intoxication AND
(2) actor’s condition qualifies under ALI Insanity Test (this is still an
intoxication defense, not an insanity defense)