Criminal Law

Bubany, Spring 2003


Grade: B+


Constitutional consideration regarding criminalization, p. 60

Does the death penalty violate the ‘cruel and unusual punishment’ of the 8th amendment? – No.  But the death penalty is unique in its severity and irrevocability.  The death penalty could be imposed if the procedure for imposing the death penalty provided adequate standards for imposing the death penalty.  (Furman v. Georgia)


Death is disproportionate for :

Rape.  (Coker v. Georgia).  

Ex: Man escaped from prison, broke into a man’s house, tied up husband, raped the wife, and was caught.  Held: death penalty violates the 8th amendment.  The death penalty may be excessive if it is grossly out of proportion to the severity of the crime.  Rape cannot compare to murder. 



Murder.  a. Aggravating circumstances.  To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment.  Murder + one aggravating circumstance.  Thus murder alone is not sufficient; and the aggravating circumstance must not be unconstitutionally vague.  Procedure has to be expansive enough to accommodate relevant mitigating evidence so as to assure the assessment of the D’s culpability.  Evidence can be both mitigating and aggravating, such as mental instability.

b. No death penalty for the insane.  You can’t execute an insane person, but insanity is not defined.  You just need to know that you are being executed and the reasons for it.  For what is the retributive effect of executing a person who has no comprehension of why he has been singled out a stripped of his fundamental right to life. 


Under 16.  Offenses before the age of 16 cannot impose the death penalty, only after 16.


Retarded.  You can’t execute a retarded person.  But the court doesn’t define retarded.


Facts must be determined by the jury.  If there’s any fact that must be found in imposing the death penalty, it has to be determined by the jury not the judge, beyond a reasonably doubt.

The jury must be told that a life sentence is without the possibility of parole, in those states in which there is a choice between death and life in prison.  (Kelly v. S. Carolina)


C&U       1) death penalty cases.

                2) Non-death penalty cases.

Imprisonment--Rummel v. Estelle.  A petty thief.  Under Texas law, if you have two felonies, the third time life imprisonment is mandatory.  Is this cruel and unusual punishment?  No – because there is nothing in the constitution to prohibit it.  It could be disproportionate enough, but it is not enough to violate the 8th Am.  But he might get out after 12 years, as he would be eligible for parole.


Proportionality is appropriate in non-death penalty cases

Harmelin v. Michigan. D convicted of possessing a large quantity of cocaine, sentenced to a mandatory life in prison.  Is this cruel and unusual punishment because of disproportionality?  The three part test, announced in Solem, is wrong.  All the 8th prohibits is the modes of punishment. P. 78, there is no absolutes. Sentence for life imprisonment affirmed.


Kennedy.  Concurrence.  The proportionality principle is still valid.  

1) the gravity of the offense v. the severity of the penalty.  If you find that it is grossly excessive, you go to two and three.

2) Compare the punishment of this offense with the punishment of other offenses in the same jurisdiction.  

3) compare penalties imposed in this jurisdiction with other jurisdictions for the same offense. 

But he never gets to the other two factors because the person had so much cocaine it was obviously meant to be distributed.

Precision in Definition

Void for Vagueness clause. p. 85. Due Process is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.


Lanzetta- Gang was not defined with adequate precision.

Chicago v. Morales--The ordinance about gangs loitering is a criminal law with no mens rea requirement; when vagueness permeates the text of such a law, it is subject to facial attack.  Loitering is defined as remaining in one place with no apparent purpose. 

Vagueness can invalidate a criminal law for two reasons:

1) it fails to provide notice that will enable ordinary people to understand what conduct it prohibits;

2) it may authorize and even encourage arbitrary and discriminatory enforcement.


The ordinance also fails to provide guidelines for enforcing it.

Scalia says the court has elevated loitering to a constitutionally protected right.  The crime was disobeying the police officer’s order (p. 96-97). 

Elements: 1) a person, 2) whom the officer reasonably believes is loitering in a public place with a gang member who (3) disobeys an order to promptly disperse. 


The reasons behind the void for vagueness doctrine:

1) public notice (iv, 4 concur with this).  Majority agrees with V:

2) adequate guidelines for the police officers discretion.  The concern is that you’ll be subject to arbitrary enforcement. 

3) Also to give adequate guidelines to judges and juries.

p. 92.(middle page)  A statute which appears to be vague can be limited (clarified) by judicial interpretation.


Is the test for vagueness a test that can be mechanically applied?  It depends on what you are trying to prohibit.  Some things are not easy to define with specificity.  Frankfurter says that the issue is balancing the risk of convicting the innocent with the value of public policy.


If the policy is too specific then some people escape the net, if it is too general it sweeps some into the net that are innocent.

Need for a Culpable mental State

Lambert v. California—Municipal Code of LA requires convicted felons to register with the city, each day that passes is a separate offense.  D had been living in LA for 7 years and had had been a felon and failed to register.  D claimed the Code violated DP.

The city ordinance: elements 1) a person convicted of a felony in California;  2) does not register within five days; 3) been in LA for that time.

Defense: she didn’t know of the duty to register and to make her guilty of this crime without proof of her knowledge would violate DP. 


Issue:  Whether a registration of this character violates DP where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.

                - action in this case is merely passive, which would give no notice of wrongdoing.

 It was a strict liability statute which means that was no culpability requirement in the statute.

All the prosecutor had to prove was that she was in LA for more than 5 days. 

“A vicious will is not necessary for a crime, for conduct alone without regard to intent.”

If an ordinary person would find it culpable then it would be valid.  But DP is violated if a reasonable person would know or know to inquiry about it.


Generally, it is no defense to say you don’t know the law.


Notes: Some states, such as Illinois’s law regarding the touching of a car, to be unconstitutional as a violation of DP.  If some one entered a car to turn off the lights, or att


Egelhoff—The supreme court determining the constitutionality of a Montana statute that prohibited the jury from consideration voluntary intoxication in determining evidence of a mental state which is an element of a criminal offense.

Thus, the statute prohibited using voluntary intoxication as a defense.  


Mantana Supreme court finds it unconstitutional based on the US constitution;  US Supreme court reverses.

Murder: 1) person that 2) purposefully/knowingly 3) causes 4) the death of another.

The statute says the court cannot consider voluntary intoxication to challenge the culpable mental state.


Scalia wrote that a state criminal defendant seeking to establish that a state law position violates DP must establish that the principle of procedure violated by the state law is so deeply rooted in the traditions and conscience of the American people as to be fundamental.  It’s not a firmly rooted tradition that intoxication can be considered on the issue of culpable mental state.

Burden of Proof

In a criminal case, the prosecution has the burden to prove guilt beyond a reasonable doubt.  Reasons:  D might face loss of liberty if convicted; D would certainly be stigmatized as having committed immoral acts.  And every element of the crime has to be proved beyond a reasonable doubt.  Winship.


Due Process Requirement of Proof to the Jury Beyond a Reasonable Doubt

- a person accused of a crime would be at a severe disadvantage if he could be adjudged guilty and imprisoned on the strength of the same evidence as would suffice in a civil case. 

                The stake at risk in a criminal case – stigmatization and loss of liberty – are much greater than in a civil case.

- the DP clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Relationship to Trial Jury

- right to trial by jury,

- Gaugin--some questions of fact are left to the judge (materiality of perjured statements).  Supreme court says that if it is an element of the offense it has to be decided by the jury.


Texas Penal Code:  2.01—A person is presumed innocent, and can be found guilty only if each element of the offense is proven beyond a reasonable doubt.

There are three classifications:

Exceptions: prosecutor must proof that D’s conduct does not fall within the exception beyond a reasonable doubt.

Defenses: Prosecution does not have to negate the existence of a defense; but if D raises it, prosecution must disproof it.

Affirmative defense:    Prosecution does not have to negate the existence of an affirmative defense.  D must not only raise but prove by a preponderance of the evidence.


p. 113.  Does the prosecution have the duty of proving that the premises is not open.  Or does this D have the burden of proving.

Also see Hicks.


Elements and defensive Matters as Issues of Policy

In federal criminal law, the federal courts have responsibility for both developing the substance of defenses and allocating the burdens regarding them.

- if duress is a defense, the state does not have the burden of proving its absence.

- the State does have the burden of proving the absence of entrapment, when that is raised as a defense, because it involves unlawful govtal activity.  Entrapment relates to the culpable mental state.


TPC: p. 19, 22.04 (a), (i) affirmative defense that the actor notify the child that he would not longer be able to provide care.  If he stopped giving care he would be guilty, unless he provided alternative care.


The difference between an exception and an affirmative defense is that the prosecuting attorney must negate the exception in the charging document.


Constitutional Limits on Defining Elements and Defensive Matters

- Mullaney--Under the Maine statue, D would have the burden of proving the lack of malice aforethought.  The Maine law said that malice aforethought is presumed.  It is unconstitutional to presume malice aforethought in a homicide case unless the accused proved it was done in the heat of passion, which would differ murder from manslaughter.  Supreme Court said that the instruction violated DP. 


Affirmative defenses are not elements that have to be disproved--Patterson v. New York

- Accused borrowed a gun and shot the man his wife was having an affair with.

                Second degree murder (NY): 1) intent to cause the death of another person; 2) causing the death of such person or of a third person.  

                Affirmative defense: having acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.

                Manslaughter: intentionally killing someone under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance.

- Jury Instr: D had the burden of proving his affirmative defense by a preponderance of evidence.

- Jury found for murder.

·         DP does not require the State to disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of the accused.

·         Though Mullaney held that the State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.


Classnotes: It’s clear that extreme emotional, disturbance is a defense. P 122


Mandatory presumptions violate DP because it essentially makes him guilty before being proven innocent.


Texas Penal Code:  2.05—Presumption: When this code or any other penal law establishes a presumption with respect to any fact, the issue of the presumed fact must be submitted to the jury to determine the presumed fact. the jury may find, but is not bound to find.

Permissive presumptions do not violate DP.

The problem with Mullaney is a mandatory presumption.  This explains Patterson v. NY, and Mullaney.

If malice is presumed, and malice is the element that makes the difference between murder and manslaughter, and the prosecution is relieved of the duty of proving malice:  for the D to have to prove the absence of malice would be unconstitional.


Note 1.  A jury instruction that fails to make clear to the jury that it must find that each element of the offense has been proven beyond a reasonable doubt violates due process. 

CN: Judges have to be careful when they define ‘reasonable doubt’ to the jury.  If they get it wrong they create error.

2) The jury cannot be instructed in such a way that the burden of proving defense is shifted from the state to the defendant.

3) Sentence enhancement. Apprendi—a person could get an extended term of imprisonment if the judge determine that it was a hate-crime.  Supreme Court held, All factors which increase the maximum sentence must be proved to a jury beyond a reasonable doubt.  This could be avoided if they redraft the statute so it’s not a matter of extending the sentence beyond the statutory maximum.


Model Penal Code

 Section 1.12 Proof beyond a Reasonable Doubt; Affirmative Defenses; Burden of proving Fact when no an Element of an Offense;  Presumptions.


(1)  No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt.  In the absence of such proof, the innocence of the D is assumed.

(2) Subsection (1) of this Section does not:

                a) require the disproof of an affirmative defense unless and until there is evidence supporting such defense;


(3) A ground for defense is affirmative, within the meaning of (2)(a)

Analyzing Criminal Liability

In general, there must be guilty act (actus reus [objective]), and criminal mind (mens reus [subjective]).  But there are other factors.  Three step analysis. 

A. The offense.  The four categories of an offense:

1. Actus reus/The voluntary act – the physical activities of the accused.

2. Mental State. Mens rea at CL; culpability at MPC.  

3. Results.  Also requires proof of a causal relationship between defendant’s act and state of mind, and the occurrence of the result.

4. Attendant circumstances (such as nighttime for burglary, or aggravated offenses).

B. Defenses (i.e., no mens rea).  These serve to raise a reasonable doubt in the juror’s mind.

C.  Defenses in the true sense.  Self-defense.


                [(Act + state of mind)àresults] + Attendant circumstances = liability


TPC: definition: 22.  The elements of offense’ means

(A) the forbidden conduct (B) the require culpability (C) any required result; and (D) the negation of any exception to the offense. 

Definition 11.  Conduct meant an act or omission and its accompanying mental state.


Omission.  Some states penalize both acts and omissions, where the person has a legal duty to act. The law against contributing to the delinquency of a minor, the child doesn’t have to become delinquent, only encouraged to become so.  So no result is necessary.  The does not appear to be a culpable requirement.


U.S.C.A. –it is an offense to counterfeit money, to own dies, or to allow someone else to make money from the dies.  Does this require culpable mental state?  It contains ‘knowing’ but what does this apply to?

B.  A Problem with Legislative purpose: Unit of Prosecution Issue

Double jeopardy.  If you have different statutes, the test of separate offenses is the Blockberger test:  Offenses are not the same for double jeopardy purposes when each has an element that the other does not.


Ex: Assault of X, Assault of Y.  Each offense has an element that the other does not.  But even if these are not the same offense for double jeopardy purposes, but they are punishable under the same statute.  It then becomes a problem of legislative intent.


Courts have to follow the plain meaning of a statute unless it is contrary to legislative intent, or if it would be absurd, or if it violates the constitution.  But sometimes there is a problem with what is meant by legislative intent.  Judges are to apply and construe statutes so as to most effectively further the public policy objectives.  One problem is determining the unit of prosecution.- How many offenses are in an act? Is stealing a watch and a car, in succession, one act or two of larceny? The issue is one of legislative intent:

                - What interests did legislature seek to protect?

                - How did legislature decide to go about protecting those interests

                - How did legislature go about protecting those interests using criminal

Merger” of Different Offenses- a way to deal with multiple offenses (kidnapping can merger into robbery or rape).  Merger merely describes a situation in which conduct meeting the requirements for several crimes will not, as a matter of legislative intent, be found to constitute several convictable crimes, to avoid double punishment for a single wrongdoing.

Lenity in Interpretation (ambiguity should be resolved in favor of lenity): “When alternative units of prosecution can reasonably be discerned from the same statutory text, it is the broader unit which is preferred to as to minimize the criminal culpability.”

RULE of Lenity: 

·         CL: Interpret ambiguity in favor of the defendant.

·         MPC: does not use rule of lenity.  Construe statutes according to fair import of their terms.  Cinstrue ambiguity to further both the general purposes of the criminal law and the specific purposes of the staute under consideration.

·         TPC:  1.05(a)

Also know as the rule of strict construction.

·         Texas Panal code  does away with strict construction, 1.05 (a).


Intent of legislature is the number of intents: 

In Re Davis---Davis claims that his two marijuana growing operations were one statutory unit of prosecution and his two convictions violate double jeopardy.

Proced: At sentence hearing: “If they had all been in the same house it would have been one crime.”  Ct of Appeals affirms.  Then Adel was decided. 

Reasoning: The Wash and US constitution protects against double jeopardy, which is implicated whether or not D’s sentences are served concurrently or consecutively.

The test: If conviction under Several statutory provisions, can be done on the Same evidence, then it is double jeopardy.

                If the same statute multiple times, then the unit of prosecution intended by legislature.

                When a statute is ambiguous it should be construed in favor of lenity.

                Davis argues that the present statute is ambiguous, failing to denote any unit of prosecution.  

                Adel held that because the statute failed to indicate whether legislature intended to punish a person multiple times for simple possession based on a drug stashed in multiple places, the rule of lenity favored one count of simple possession.  

                But in Adel the statute the focus was on quantity.  The present statute makes no reference to quantity, but rather intent.  If D’s manufacturing operations are sufficiently differentiated by time, location, or intended purpose, he can be convicted multiple times without violation of double jeopardy. 

Because he set up different locations, he had a separate a distinct intent to manufacture.


Davis pleaded guilty but that there was only one offense, not two.  For double jeopardy purposes, these are two counts, because there is an element of each that is not in the other, because he was growing to two difference places.  But he is being prosecuted on both counts under the same statute.  So they have to decide as a matter of legislative intent.  They find legislative intent to make multiple prosecution.


Note1: Robbery is convictable for each person whose possessory interest is being violated.  Robbery contains theft and violence or threat of violence.  If you rob a bank you are guilty to each teller.

Note 2:  Continuing offense, a person is guilty for each day of the violation. 

The Act

MPC – both voluntary and involuntary, unless he is physically incapable.

Requirement of Voluntary Act; Omission as Basis of Liability’ Possession as an Act. (1)  A person is guilty of an offense unless his liability is based on conduct which includes voluntary act or the omission to perform an act which he is physically capable.

Not Acts: convulsions, act during unconsciousness or sleep, or hypnosis.  (4) Possession is an act if the thing was knowingly procured, or the actor was aware of possession for a long enough time as to get rid of it.

Texas Penal Code

1.06 “Act” mean a bodily movement, whether voluntary or involuntary, and includes speech. 6.01 Requirement of an act or omission: (a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. (b) possession is a voluntary act if the possessor obtains or receives the thing or is aware of his control for sufficient time to permit him to terminate control. (c) omission is not an offense unless the person has a duty to perform as defined in 1.07.

A. General Requirements of an Act

1. Need for Crimes to be defined in terms of Conduct:

The two cases that follow develop an 8th and 14th Amendment requirement that crimes be drafted in terms of conduct.

Robinson v. California—Supreme Court found A California Statute makes it a criminal offense to be addicted to narcotics.  This is based on status.  It subjects the offender to arrest any time before he reforms.  Making a disease a criminal offense is cruel and unusual punishment.  Addiction to narcotics is considered a disease.  It violates the 8th and 14th amendments to make addiction a criminal offense.


Concurrence-Since addiction alone cannot reasonably be thought to amount to more than a compelling propensity to use narcotics, the effect of the instruction was to authorize criminal punishment for a bare desire to commit a criminal act.

Classnotes:  He could be found guilty of possession or addiction.  The jury found him guilty, so we don’t know which they found him guilty of.  They could have convicted him simply because he was an addict.

Douglas concurring—we are labeling this person a criminal is a

Harlan concurring- we all have e desires, but their not criminal until you act on them.


Powell v. Texas—Man is arrested for public intoxication under the Texas public intoxication statute. 

His defense is that he is afflicted with a disease of chronic alcoholism and that his appearance in public while he is drunk is not of his own volition, therefore, as per Robinson, is unconstitutional.  Trial judge found that chronic alcoholism was not a defense to the charge. 


                Robinson is distinguishable.  D was convicted not of being a chronic alcoholic, but of being in public while drunk.

Holding: Chronic alcoholics in general cannot suffer from such an irresistible compulsion to drink and get drunk in public that they are utterly unable to control their performance of either or both of these acts and this cannot be deterred from all public intoxication.

Black concurring—Robinson was explicitly limited to the situation where no conduct of any kind is involved; where the mental state is not only part of a crime but all of it.

2. Need for an Act to be Voluntary.

CN:  There is general agreement that the conduct must be voluntary.  Thus D must be conscious.

Texas penal code: 1.06 (1) Act…

6.01 (a) A person commits an offense only it he voluntarily engages in conduct, including an act, an omission or possession.


If a person’s ability to choose was impaired then his ability to act voluntarily.

Act requires voluntariness; culpable mental state.  Can you intend to do an act, but not the result?  Yes.

The voluntariness requirement: There is general agreement that conduct can serve as the basis for criminal liability only if it is voluntary in some sense.  The requirement of consciousness has given rise to considerable controversy.  In a Vermont case they note: While strict liability crime does not require a culpable mental state, it does require a voluntary criminal act.  The requirement of consciousness has resulted in the defenses of unconsciousness and automatism.

Automatism defined (Wy): While in an automatistic state, an individual performs complex actions without an exercise of will, thus without intent, exercise of free will, or knowledge of the act. (Fulcher)


Amnesia is not a defense--State v. Mercer—Jealous man shot and killed his wife and two others.  His testimony was intended to show that he was completely unconscious of what transpired when he killed them.  For murder in the first degree he had to be conscious of what he was doing, to premeditate and deliberate.  The judge allowed the jury to consider amnesia with regard to premeditation and deliberation.  The jury found him guilty of murder in the second degree.

Ruling:  Unconsciousness is never an affirmative defense.  There is no evidence that D was a somnambulist or an epileptic.  Unconsciousness is not a complete defense under all circumstances.

Classnotes:  D says that he didn’t remember any of this.  Amnesia is not a defense because it doesn’t matter what D’s mental state is now, but only at the time of the murder.  It doesn’t matter whether or not he remembers what he did, only that he knew what he was doing while doing it.


The judge says he should have been given an instruction that he would not have been guilty at all; as though it should be treated as an insanity defense.  If there was no voluntary act, then there is no crime.

177. In Colorado, a person who precipitates a fracas and as a result is hit on the head and rendered semi-unconscious or unconscious cannot maintain that he is not criminally responsible for an degree of homicide about involuntary manslaughter, or that he is not criminally responsible at all.


Note 1.  That portion of Mercer holding that unconsciousness is not an affirmative defense was overruled.  Who has the burden of proof.

Unconsciousness should not be an affirmative defense, but insanity should be an affirmative defense.

2.  Amnesia is not a defense. 

3.  Unconsciousness due to voluntary ingestion of alcohol or drugs would not establish the defense recognized in Mercer.

4.  If acquitted should a person claiming unconsciousness at the time of the criminal act be committed. 


Insanity defense must be based on a mental disease or defect. In McClain: Jurisdictions are split between recognizing insanity and automatism as separate defenses and classifying automatism as a species of the insanity defense.  McClain claimed insanity because he had suffered from sleep deprivation.  Held, this condition was more akin to intoxication than insanity because it had an external cause.


Cegers used ‘confusional arousal syndrome’ to explain why he assaulted the victim with a knife when awakened by her.

5.  In some situations, criminal liability may be based on voluntary action taken before the accused became unconscious, such as operating a vehicle knowing that you are subject to epileptic seizures.  The voluntary act was getting into the car.  Thus the criminal conduct was already done.  She may have been criminally negligent or reckless, but there was some criminal conduct.


Basic agreement: The conduct must be voluntary.  If there was no voluntary Act, how could there be CMS (culpable mental state)

B. Liability based on Failure to Act--omission

TPC: 6.01(c) A person who omits to perform an act


There are two situations in which one can be criminally liable for failure to act: 

1) if the crime itself is explicitly defined in terms of failing to act, and

2) when there is a special relationship giving rise to a duty.


Notes:  In Jones v. US, D was convicted of voluntary manslaughter for the death of a 10 month old infant who had been left in her care by the child’s mother.  The death was attributed to severe malnutrition and lack of adequate medical care.

In People v. Watson, the court found that leaving a child alone was an act, not an omission.


For criminal liability to be based upon a failure to act, there must be a duty imposed by the law, and the person must be physically capable of performing the act.

This rule imposes NO DUTY on a person to rescue or summon aid for another person who is at risk or in danger, even though society recognizes that a moral obligation might exist.  This is true even when that aid can be rendered without danger or inconvenience to the potential rescuer.

Seven common law EXCEPTIONS to the no duty rule:  1) a duty based on a personal relationship (parent-child, husband-wife), 2) a duty based on statute; 3) a duty based on contract; 4) a duty based upon voluntary assumption of care; 5) a duty based on creation of peril; 6) a duty to control the conduct of others; and 7) a duty based on being a landowner.


                - You are not required to jeopardize your own life.

                - No duty unless spouse unintentionally entered a helpless state or was otherwise incompetent to summon medical aid on hi own behalf

                - A person who places another person in a position of peril has no duty to aid them if in doing so they would risk bodily injury or death

                - Where self-preservation is at stake the law does not require a person to save the other’s life by sacrificing his own, and therefore no crime can be committed by the person who in saving his own life in the struggle for the only means of safety causes the death of another.

EX: Woman being abused by her boyfriend, stabs him in the chest.  She then drives to a friends house.  After an hour her sister calls the police.  Is she guilty of negligent homicide for failing to call for medical assistance?


State Ex rel. Kuntz v. Montana

1.        Issue 1: Does one who justifiably uses deadly force in defense of her person nevertheless have a legal duty to summon aid for the mortally wounded attacker?


Answer: No.  When a person justifiably uses force to fend off an aggressor, that person has no duty to assist her aggressor in any manner that may conceivably create the risk of bodily injury to death to herself, or other persons.  Thus, the person who acts in self-defense is temporarily afforded the same status as the innocent bystander under the American rule. 

However, once the victim has secured a safe distance, he can encounter a revived duty if 1) the person had knowledge of the facts indicating a duty to act; 2) the person was physically capable of performing the act.


2.        Issue 2: If a person who justifiably uses deadly force fails to summon aid for her attacker, is she criminally culpable for that failure?

Answer: Only if the failure to summon medical aid is the cause in fact of the original aggressor’s death, not the justified use of force.

Decision:  Here the cause in fact of the death was the justifiable use of force.  Not guilty for failing to summon help.  A normal person under such circumstances incapable of such intellectual processes.


Penal codes have tried to limit duty.

TPC:  6.03 (D)  even if the prosecution establishes that there was a duty, he will still have to prove that a reasonably person in her situation would have appreciated that there was a substantial and justifiable risk that he would die.

6.01(1) a person who has

6.07 (30) ‘Law’ means the constitution or a statute of this state or of the United States, a written opinion of a court of record, an order of a county commissioners court,

Chapter 22.04, p 19.  Assault (b) an omission

19.02 Murder


Duty imposed by the law.  But there has to be a duty before it will be a crime for failure to act.


Texas - you will have to find some duty imposed by law.

At CL there is no duty to act.  But there is if there is an undertaking.  But not necessarily under Texas criminal law.


Model Penal Code (similar to the Texas PC): Omission as Basis of Liability. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: a) the omission is expressly made sufficient by the law defining the offense, or b) a duty to perform the omitted act is otherwise imposed by law.


Note 1. Kuntz was charged  with negligent homicide

Note 2.  Why should criminal liability for an omission turn upon whether the situation gave rise to a legal duty to act? – We have a problem of imposing criminal liability if there is no notice that you have to act.

C. Defining the Act Required for particular Crimes

State v. Cross—Drunk man found passed out, half way in his truck.  The engine was on, the lights were on, the key was in the ignition.  Charge: DWI

Issue: Was Defendant operating the vehicle? 

The court then moves to statutory construction.  They look the word up in the dictionary for the plain meaning of the word: ‘to cause to function.’


Missouri statute: 1) A person commits a crime of driving while intoxicated if he 2) operates a 3) motor vehicle 4) while intoxicated.  ‘Operates’ means physically driving or operating a motor vehicle.


                - Though circumstantial, the state’s evidence was sufficient for a fact finder reasonable to conclude that D’s acts of being in the car with the engine running and then turning off the engine and headlights, constitutes operation of the vehicle; there is sufficient circumstantial evidence that he started the car and put it into operation.

                ‘Operating a vehicle’ has to mean something different from driving a vehicle.  Legislature necessarily intended for each of the alternatives set forth to have distinctive meanings.



1. is intent to drive necessary? – Courts generally do not read such statutes as requiring culpable intent at all.

2. Need the car be working?  – “A person cannot be properly convicted of driving while under the influence by having actual physical control of an inoperable vehicle; though temporary inoperability does not preclude criminal liability.


Instructing Juries on “Physical control”

Class notes:  What’s the problem when the court in State v. Love, when the S. Ct rejects rigid analysis for a factorial test.  But do we want to use a factorial test, or a bright line test?  Bright line.


State v. Love—In Arizona, if a driver pulled off the road and turned off the engine was not in actual physical control of the vehicle.  The S. Ct of Arizona rejected this as a rigid, mechanistic analysis, saying that factors had to be weighed. “The trier of fact should be entitled to examine all available evidence and weigh credibility in determining whether defendant was simply using the vehicle as a stationary shelter, or posed an imminent threat to the public.  There should not be a black letter law for determining actual physical control.  Using factors recognizes that each situation may be different and requires the fact finder to weigh all the circumstances.

                The jury should be instructed that Barazza

D. Act Required by Property offenses

1.        Larceny at common law was defined as the 1) trespassory 2) taking and 3) carrying away of the 4) property 5) of another 6) with intent to steal it. 


Larceny could only be applied to personal property, not services, not electrical current.  It was originally viewed as an offense against person.  Now there is a shift to trespass against property.



Larceny- X breaks into Y house and take property.

Larceny by trick (swindle)—

False pretense--X tells Y he has some valuable oil stock, which in fact are worthless.

Embezzlement--Y gives X money to invest, but X uses it to buy a new car.

1. Wrongfully Acquiring Property of another

There was a distinction between wrongfully acquiring the property of another without the person’s permission, and obtaining the property with the other’s permission where that permission was induced by certain other wrongful conduct by the accused.


a. Wrongfully acquiring Property Without Permission

LARCENY: the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.

Asportation: For the ‘taking’ element D need only move the property from the exact location it occupied before D’s conduct.

                Retailers implicitly grant bona fide customers the privilege to move goods offered for sale, in order for customers to accumulate all the goods desired and transport them to a designated area for payment.

                When an individual harbors the requisite intent to steal and permanently deprive the owner of property, acts on such intent by taking possession of the property even for an instant, even the slightest movement will suffice, and moves the targeted property, larceny has been committed.

EX: In the garden section of Lowe’s, D was pushing a cart toward the exit with two TV/s in it.  Upon request D agreed to come back inside to pay for them.  He ran away and the manager chased him.  When he was apprehended, he had no cash or credit cards with him.  No means of paying.  He also gave a false identity.  Was this larceny?


Welch v. Commonwealth—grand larceny

Intent: The specific intent in the person’s mind may be inferred from that person’s conduct and statements.  D first stated that the TVs were not his, then that he was looking for a place to pay for them.  D fled, then threatened the manager – ‘don’t make me shoot you.’  Moreover, the false documents he produced and the lack of any means to pay for the items allows the jury to infer that he acted with intent to steal.  Thus the evidence supports the jury’s conclusion that he committed larceny.

- This was not attempt because the crime was complete when he moved the object.



2. Some people have taken merchandise from the shelf and brought it to the register as a return item for a refund.  In State v. Higgs, the man put a toy into a paper bag and then ‘returned’ it for a refund.  But because he concealed it, it was larceny.

In State v. Martin, there was not concealment: the criminal act occurred when Martin told the clerk that the shirts had been given to her sons, thus exercising control of the shirts.  Thus a verbal concealment.  Stave v. Davis.  The store did not consent to D’s taking it with intent to steal.

3.  In Gilliam v. State, the Georgia court rejected Gilliam’s defense that he never took possession of the jacket (which he was trying to return for a refund) because the jacket never left the store.  Held, he took possession when he asked for a refund.

b. Wrongfully Acquiring Property by Deception, p. 214

LARCENY BY FALSE PRETENSES: requires that 1) a false statement of fact was made; 2) the defendant knew or believed the statement to be false when he made it; 3) the defendant intended that the person to whom he made the false statement would rely on it; 4) the person to whom the false statement was made did rely on it and, consequently, parted with property.


Commonwealth v. Reske—Car dealer took advantage of a man who was mentally retarded to sell him 6 trucks at up to 7 times the ticket price and trade in trucks at well below the trade in price.  There is no question that he took  advantage of his gullibility.

Issue: were false statements made?

Defense:  he made no false statements.  It is not a crime to gull a willing dupe.

Reasoning: the fact finder may infer a false statement as to the value of the 6 trucks based on the inordinate profit margin, from the manifestly unrealistic trade-in allowances, and from the inflations over sticker prices.

On of the principle objects of the statute is to protect the weak and credulous from the wiles of the artful and cunning.

Held, guilty.


TPC: Theft Chapter 31.1 (1) ‘Deception’ means (A) creating or confirming by words of conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true.


1. When you give a person a post dated check, you are telling them that you don’t have enough in your account, so the person who takes the post dated check is confident that he’s going to make the check good.

2.  Dealing wrongfully with the legitimately acquired property of another

Embezzlement requires that 1) the actor, 2) in lawful possession 4) of another’s property, 4) fraudulently convert it.  (Conversion in this context is to act upon the property in a manner seriously inconsistent with the trust relationship underlying the owner’s willing transfer of possession.)


Commonwealth v. Moreton—Fisherman consigned dealer his blue fin tuna.  Dealer sold it at auction and told fisherman that his share would be 3k.  Dealer didn’t pay until fisherman, after great persistence, finally got him to send him a check, but told him not to cash the check.  Fisherman called the bank to see if there were sufficient funds.  There weren’t.  In the end he cashed the check anyway and the dealer declared bankruptcy.

Charge: 1) larceny by check, 2) embezzlement larceny.

TC: found guilty of larceny, but not larceny by check, ordered to pay restitution.

Reasoning: To convict D of embezzlement, the State must prove that D unlawfully, and with intent to steal or embezzle, converted the property of P.  It must be beyond a reasonable doubt that D had a criminal intent to defraud.


There is no evidence that D made an affirmative effort to mislead the owner of property.  There is no direct or circumstantial evidence of criminal intent.  There is no evidence of any agreement about price, share of profits, treatment of proceeds, or responsibility for disposal of the fish if it were not sold.  The mere failure to make good on a commercial transaction, whether a consignment or a transaction by another name, particularly in the context of bankruptcy, does not establish the criminal intent required for an embezzlement conviction. Decision: Not guilty


CN: Was the money ever the victim’s?

                - D may be liable for breach of contract or conversion

                - But there’s no evidence D took fish under false pretenses

                - P could have filed in bankruptcy ct that his debt was non-dischargeable

- Conviction for failure to pay his debt would be unconstitutional as debtor’s prison.


[The difference between larceny by trick and embezzlement is the timing when the intent to take in present.  If from the onset, then larceny by trick; if after obtaining, then embezzlement.]


1)  What is a conversion sufficient for embezzlement? –

People v. Redondo

Statute: “a person commits embezzlement if any such person fraudulently appropriates to any use or purpose not in due and lawful execution of his trust, any property which he had in his possession or under his control by virtue of his trust.”

                Facts: Redondo, a deputy sheriff, used the vehicle assigned to him to steal a lawn mower.  Court rejects D’s contention that in order to violate the statute, the taking must be made with intent to permanently deprive owner for at least an extended period of time.  The embezzlement was the fraudulent use of the vehicle not in the due execution of his trust.


People v. Harby—A city council person used a city-owned car to travel more than 4, 000 miles on a pleasure trip.  App. Ct. found him guilty of embezzling from the city. “Such a use of the car was inconsistent with its owner’s rights and inconsistent with the nature of the trust reposed in appellant and therefore it was an embezzlement.”


Redondo not only used the car to steal the lawnmower, but used it to evade a pursuing officer at high speed, thus subjecting the car to detriment.

Because the statute defines a violation in broad terms as any use or purpose no in the due and lawful execution of his trust, the Redondo’s appropriation was brief, it was not in the public interest.


2. Are the following conversions?  If the owner gets it back but it’s undamaged, is it conversion?


a. They had permission to take the drive.  After test driving a used car, the car lot was closed when they returned.  So they took a 300 mile drive and returned the car in the early morning.  Convicted but Conversion?


b. P left car at D workshop for repaired.  D took car to gas station and in returning destroyed it in an accident.  Held, no conviction because no intent to steal.


3. Should increasing the risk be enough for conversion?  There is great disagreement on this.  Problems with the bank embezzlement statute, does the word ‘misapplies’ apply to the increased risk of lose, even though there wasn’t any lose?

If in the principle case, he just put the money in his drawer, then there probably wouldn’t have been any misuse of funds.


4. Model Penal Code, requires proof of risk of loss or detriment: Section 224.13  Misapplication of Entrusted and Property of Govt or Financial Institution.

A person commits an offense if he applies or disposes of property (that have been entrusted to him as a fiduciary, or property of the govt or of a financial institution,) in a manner which he knows is unlawful and involves a substantial risk of loss or detriment to the entrusted.  This requires only subjecting to the risk of lose, not actual lose.


TPC (similar to the MPC) 31.02:  If you subject it to a  risk, that’s enough.

The intent is a different issue from the conduct.  And this misapplication.  Is risking the money enough for conversion?  It seems not to be.


Consolidation, these are all ‘theft’ now. Theft as defined in 31.03

31.01.2 “Deprive means:

(4) Appropriate is defined to include the bring about the transfer of title or purported transfer

compare (35) ‘owner’ the one with the greater right of possession.  So a thief could steal from a thief.

31.03 – Theft: a person commits an offense if he unlawfully appropriates property

Problem with ‘effective consent’:

See grading on 29, the degree of theft depends on the amount stolen.

3. Modern Consolidated Property Crimes

TPC Chapter 31 Theft

(1) “Deception” means (A) creating or confirming by word or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; (B) failing to correct a false impression of law or fact….


Texas doesn’t have a separate offense of ‘theft by deception’ because it already includes.


Section 223.1.  Consolidation of Theft offenses; Grading; Provisions Applicable to Theft Generally


TPC: 31.04: if you walk out of the restaurant the jury may infer that you had the intent to avoid payment, and you have to prove that you didn’t.

4. Wrongful destruction of Damage of Property

Criminal mischief:  It is difficult to say exactly what it is at common law.

TCP: 28.04 criminal mischief

Model Penal Code 

Criminal mischief (1) Offense Defined.  A person is guilty of criminal mischief if he: (a) damages tangible property of another purposefully, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means, or…


Larceny – ‘the owner’ is defined as anyone with the right of possession superior to that of the taker; a joint or common owner shall not be deemed to have a right of possession superior to that of any other common owner.  If one is a common owner of property and entitled to possession at the time of the taking, there can be no larceny.  Therefore, under a charge of larceny, D would have been not guilty.


People v. Brown.

Issue:  Can D properly be charged with the crime of Criminal mischief for deliberately destroying property where D genuinely believed in good faith the he was entitled to share the use for that car with the car’s legal owner?

Facts: D made a down payment on a car the title of which was in the name of his girlfriend, and her father.  After a break up, he took the car and smashed it into a light pole.  The car is now inoperable.  In his own mind he was not stealing, but believed he was entitled to drive the car from time to time.

Charge: Unauthorized Use and Criminal Mischief

Unauthorized Use is in essence a kind of larceny statute specially adapted for car theft.  It applies where D uses the car without consent. 

It aims at the same wrong as larceny – the knowingly wrongful misappropriation of someone else’s property or, stealing.  A D who could not be found guilty of larceny of the item, could not be GUILTY of unauthorized Use.


3. Criminal Mischief: The statute provides that a person is guilty of Criminal Mischief in the 4th degree when having no right to do so nor any reasonable ground to believe that he has such a right, he intentionally damages property of another person.  Elements: 1) a person 2) purposefully 3) damages 4) property of another. 

Property jointly owned by a D and a complainant qualifies as property of another person within the meaning of the statute.  Property is ‘that of another person’ if anyone, other than the D, has a possessory interest in such tangible property.

There is little reason to believe that D believed that his conduct was permitted under any rational construction of the agreement with his co owners.  Someone who deliberately destroys shared property must know the he is acting wrongfully.  Unlike in Larceny, in criminal mischief the property cannot be returned to the owner.


The criminal mischief statute doesn’t use ‘owner’, but rather ‘the property of another.’  The Criminal mischief statute was purposefully written to make it different from the Larceny statute.


1. In State v. Coria, held, co-owned, co-possessed community property does not constitute property of another for the purposes of the malicious mischief statute.  This is consistent with Person.


TPC. 28.03 Criminal Mischief: A person commits an offense if without the effective consent of the owner.  Here they speak of ‘owner’, not ‘property of another.’  So, he probably wouldn’t be guilty in Texas.

TPC. 28.04 Reckless damage or Destruction – a person commits an offense if, with out the effective consent of the owner, he recklessly damages or destroys property of the owner.


2. What is damage?  What must prosecution show D did to property? People v. Collins.  D sprayed chicken feces on front of Court of Appeals house.  There was no damage in there normal sense.  They look to the dictionary: it includes injury that reduces its value of usefulness.  And the amount of damage includes the cost of any clean up to restore it to its prior condition.  Thus, guilty of Criminal Mischief in the Second degree.

p. TPC 23, 28.03 (a)(3) .. he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property.


3. People v. Hills. D pulled a survey marker from the ground and threw it.  Held, there is no damage, either to the property or to the marker.

E. Act Required by Aggravated Property Offenses: 

Robbery and Extortion

TPC:  Robbery, 29.02 Robbery is larceny plus force or threat of force.

At common law, robbery defines larceny aggravated by the use or threatened use of force to the owner.  Some jurisdictions have done away with the intent to permanently deprive.  In the federal bank robbery statute, Carter v. U S, provides that a person commits a crime if the persons by force and violence, or by intimidation, take from the person or presence of another any thing of value belonging to or in possession of the bank.  Intent to deprive is not necessary, only that the person take the property.  The use of violence is the main aspect of this crime.


State v. Preston

Facts:  During a struggle, the cigarettes he was stealing fell from his shirt.  Once outside in the parking look, he held up a bottle and threatened the store owner.  D claim that he used the force for self defense and escape, that because he was no longer in possession of the stolen cigarettes that escape was the only reason for which he used force, moreover, he was no longer in the store when he used force.  Therefor the jury should be instructed on the lesser included offense of larceny in the 6th degree, which is the theft of property under $250.  Because robbery is larceny plus force, he should only tried for larceny.  The element of robbery doesn’t exist because there is a question of whether he used force in the furthering of robbery.  So a rational jury could reasonably find that he did not use force to


Issue: Whether the evidence of the element that differentiated the allegedly included offense of larceny from the greater offense of robbery was  sufficiently in dispute to permit the jury consistently to fins the D innocent of the greater offense but guilty of the lesser.


Robbery is 1) in the course of committing larceny, 2) a person 3) uses/threatened immediate use of force against another.

Robbery proscribes physical force for (1) preventing or overcoming resistance to the taking of the property of to the retention thereof immediately after taking, or (2) compelling the owner of such property to deliver up or engage in other conduct which aids the commission of the larceny.


The jury was not provided with any basis for concluding that the D possessed no stolen cigarettes when he fought with Shaham in the parking lot.  Based on the testimony of the clerk, he still had cigarettes.  Thus they could not reasonably conclude that D’s force was solely for the purpose of escape of self-defense.  Therefore, an instruction to the jury on the lesser included offense of larceny in the 6th degree was not justified.



2. You can’t consider violence or threat of violence, if D has reached a place of safety.  In California they have a continuing robbery: the rationale is that until a place of safety is reached the robber poses a continuous threat of danger to those who might pursue the robbery.


3.  What constitutes force used to take property is a difficult question.  Generally purse snatching and pick-pocketing is not force.  In Chaney v. State D peaceably reached into the victims pocket and took his money.  Held, robbery requires only extremely light force or violence, but does not include stealth.  Pickpockets are generally prosecuted under larceny.  When the victim is aware that someone is attempting to take property from their person and does not indicate any consent to the taking, the crime of pick-pocketing or larceny is elevated to robbery because violence or the threat of violence, even though slight, was a factor in the taking.

4.  What is a threat sufficient for robbery?  Is it a question of whether a reasonable person would be frightened or this particular person would be frightened.  Is it a subjective or objective test?  In state v. Moore D asked victim for the keys to his car, then took the stereo and left.  Held, D orchestrated a situation intended to intimidate the young woman into surrendering her car keys.  But the issue is not what D intended, but whether V felt threatened.  From the victim’s point of view.  D did not have to add “or I’ll hurt you’ to his demand for the keys.”?


TPC: 29.02 – requires intentional and knowing threatening, what did the D actually intent


Class note:  a sneak thief will not be a robber unless the victim is aware that you are doing it.


Model Penal Code

Section 222.1 Robbery

A person is guilty of robbery if in the course of committing a theft, he: (there is no mention of the person’s intent, it doesn’t have to be in the course of defending himself, it just has to be in the course of committing the robbery)

2. Extortion

Modern extortion is an aggravated form of larceny.  The crime is committed if the person obtains money from another by threat other than one of immediate harm to another, such as threat to harm the victim in the future or to damage the victim’s property.

The Arizona statute had the effect of punishing conduct protected by the 1st amendment.  So there can be freedom of speech issues.


When a prosecutor makes a deal for D to enter a guilty plea, he is inducing a confession, not extorting.


State v. Harrington

Facts:  Lawyer is trying to get a divorce settlement, for $175k.  Lawyer set up a sting to photograph cheating husband in the act, so he could get a divorce.  He sent a letter along with a photograph saying he would not go to court and expose all his evils if he agreed to a money settlement, which the lawyer stood to gain from as he was acting on contingency.

Footnotes b.  EXTORTION: A person who maliciously threatens to accuse another of a crime or offense, or with an injury to his person or property, with intent to extort money or for pecuniary advantage, with intent to compel the person so threatened to do an act against his will.

Reasoning:  According to the writing itself, the cost of refusal will be public exposure of incriminating conduct in the courts of NH where the events took place.  The totality of the evidence does not exclude the inference that he acted merely as an attorney attempting to secure a divorce for his client on the most favorable terms possible.  But clearly these veiled threats exceeded the limits of the D’s representation of his client in the divorce action.  He mentioned crimes against the IRS, INS, et c.  Demand for settlement of a civil action accompanied by a malicious threat to expose the wrongdoer’s criminal conduct, if made with intent to extort payment, against his will, constitutes the crime of extortion.  D acted maliciously and without just cause, within the meaning of our criminal statutes.  The act was done with intent to extort a substantial contingency fee to the D’s personal advantage.


Where do we draw the line: Between the malicious obtaining of the promise to pay money and what is not malicious.  Here it was the set up that did him in.  IN the letter he says ‘beyond a reasonable doubt’ which suggests he is threatening to press criminal charges, the crime of adultery.


31.02 TPC: under the consolidated Theft offense includes extortion.  A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property without effective consent…[consent is not effective if induced by deception or coercion]


2. In State v. Greenspan.  Greenspan complained the police that Moby was harassing him, but that he wanted to wait overnight before signing for an arrest warrant.  He then contact Moby and told him he would not press charges if he would pay a sum of money. 

The Statute read:  Any person who threatens with the intention thereby wrongfully to obtain anything of value is guilty of extortion.  The wrongful intent required by the statute refers to obtaining of property and not the threat itself.  The victim’s guilt of the crime of which he is accused in not defense to a charge of extortion.  Several states have included the claim of right defense in there statutes, the majority of States do not.

Split of authority, if the person thinks they are entitled to the money.


3. In NY it is an affirmative defense that the D reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.

F. Act Required by Offenses Directed at the Habitation: Burglary and Arson

TPC: p. 25, Chapter 30. Burglary and Criminal Tresspass


1. Burglary: Common law elements: a) breaking, and b) entering, of c) the dwelling of (d) another (e) at night, f) with the intent to commit a felony within.

Recent variations: day or night; need not be a dwelling; breaking can be entry obtained by threat, fraud or conspiracy, this is constructive breaking; if he wides the opening of a door or window to allow passage, this is breaking: a force used to remove an obstruction to entry.


People v. Davis

D was convicted for burglary, based upon evidence that he presented a stolen and forged check to the teller at a check-cashing business by placing the check in a chute in a walk-up window.  D maintains that the burglary conviction must be reversed because he did not enter the check-caching facility.

The only thing that entered the airspace of the store was the check.


II. California Burglary: 1) a person is guilty of burglary is he 2) enters any 3) building with the 4) intent to commit larceny or any felony.[need not be a dwelling or at night]

Issue: What did legislature mean by enter, and did it encompass passing a forged check through a chute in a walk up window? – No.

Reasoning: Burglary may be committed by using an ‘instrument’ to enter a building, whether that instrument is used solely to effect entry, or to accomplish the intended larceny or felony as well.

- In People v. Rosenscroft D inserted a stolen ATM card into an ATM machine and this was held to be an entry by use of instrumentality.

- What is the type of entry the burglary statute is meant to protect?

- At CL the law was intended to protect the sanctity of a person’s home during the night hours when the resident was most vulnerable.

- In California, entry by itself is sufficient.

- in People v. Barry A person who enters with the intention to commit a felony enters without an invitation.

- In People v. Gauze A person cannot burglarize their own home, because a burglary remains an entry which invades a possessory right in a building.


- Thus the statute is aimed at the danger caused by the unauthorized entry itself.  Inserting a stolen ATM card into an ATM machine, or placing a forged check in a chute in the window of a check cashing facility, is not using an instrument to effect an entry within the meaning of the burglary statute.  Neither act violates the occupant’s possessory interest in the building as does using a tool to reach into a building and remove property.

Held, placing a forged check in the chute of a walk up window of the check cashing facility cannot reasonably be termed an entry into the building for the purposes of the burglary statute.

Dissent: The airspace test:  if your hand is on it, and it passes into the airspace, it is burglary.  He says there is a danger because the potential for harm may occur in any theft circumstance.  The difference the majority is making is whether the ATM machine is in the bank or outside the bank.



1.  Courts are split on whether a burglary can be committed by entering via a bullet fired from a gun.

TPC p. 25, 30.02 (b): “‘enter’ is any part of the body, or any physical object connected with the body”, so a bullet would probably not be an entry, but Davis probably could be convicted of burglary in texas.


2. A person cannot commit burglary by entry into a dwelling in which the person lives, even if that entry is made with intent to commit a violent crime against another occupant.

3. If one of several joint occupant invites a third party to enter the jointly occupied premises to commit a crime against one of the other occupants, the consent is most likely not effective for purposes of burglary and the entrant is guilty of burglary.


4. Moving from one room in a dwelling from which one had permissing to be into a room that the person did not have permission, constitutes burglary.  People v. Sparks.  Magazine sales man asks to come inside then refuses to leave, follows woman into bedroom and rapes her.  Held, burglary does not include entry into a room from another room in the house, unless by the nature of the room entered there is an expectation of protection from intrusion from the other rooms that is comparable to the expectation of protection from intrusion in to the house from outside the house.

5.  You can’t enter your own home if one spouse has made an effort to exclude the other.  If a court order gives one spouse the right of possession of the marital premises, the other spouse may commit burglary by entering those premises to commit a criminal offense.


Model Penal Code

Section 221.0 Definitions


Section 221.1 Burglary

Compare this with Texas Statute:  MPC has a restrictive definition of burglary

2. Arson

CL: the willful and malicious burning of the dwelling house of another person.

TPC: p. 23, 28.02  all you have to do is start a fire, with intent to….[this includes what would be an attempt at CL] “A person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition…with intent to destroy or damage…”


Hathaway case from Alaska:  man burns building, nine persons evacuated, prosecuted for nine counts of arson.  Held, he can only be convicted of one count of arson, because it’s a property crime, not a people crime


United States v. Jane Doe [important case]

A 12 yr old lit a paper towel in the girl’s restroom.  She blew it out then left the room.  The school burned down.

Issue: What kind of criminal intent is required for the crime of arson under the federal statute.

Elements under the federal statute: Willfully and maliciously set fire to or burn a building.

Distr. CT. found, she knew what she was doing and knew the likely result of her conduct, and there was proof beyond a reasonably doubt.  Is there intent to set a fire and intent to burn a building?  So she had a state of mind to set a fire and to burn the building.

9th Circ. Affirms, but disagrees:  ‘willful and malicious’ refers only to the conduct and not the result.  The court says that ‘willful and malicious’ are terms of art, and at common law you didn’t have to have a criminal intent -- only the conduct.  The intent with respect to the result of her conduct is irrelevant.  But it doesn’t make any difference if she was just negligence or reckless.

The important distinction is the state of mind with regard to the conduct and the result.

DISSENT: CL does require an intent to burn the building or there has to be a strong likelihood to burn the building.



1. It is arson to burn your own house if there are joint occupants.

2. Florida statute arson includes the burning of contents of the house without burning the house.  There is arson because there is soot on the ceiling, and arson because he burned his clothes.


Model Penal Code

Section. 220.1 Arson

G. Act Required by Offenses Directed at Personal Security: Assault

TPC: 22.01 Assault: A person commits an offense if the person (1) intentionally, knowingly, or recklessly causes bodily injury to antoher, including the persons’s spouse. (2) intentionally or knowingly threatens another with immienent bodily injury, including a person’s spouse.

This includes what at CL would be both assault and battery.  A battery was the unlawful application of force to the person of another.  It involved a result brought about by the actor’s conduct:  an injury or offensive touching


United States v. McKinney

McKinney and Straight get into an argument.  McKinney says ‘I’ll kill you’.  Straight says because of a prior incident she was afraid that she would be rammed by her.

Issue:  (1)Whether assault under 18 USC 113 requires object behavior by the accused, in addition to a threat to kill, to support a finding of reasonable apprehension of immediate bodily harm and (2) whether the evidence is sufficient to support a conviction of simple assault as defined by USC and common law.  – Yes to both.

Reasoning:  Assault is attempted battery or placing another in reasonable apprehension of battery.  The test was to place P in reasonable apprehension of harm.

We hold that P’s apprehension of bodily harm was reasonable.  Thus D is guilty of assault.

The basis for the fear was what happened before D was in the car.


Dissent:  there may have been fear, but the govt has not met its burden that there was a reasonable apprehension of bodily harm.  He says she may have been actually in fear (objective), but would have reasonable person have been put in fear (objective).  Thus there was not a reasonable apprehension of harm.  In foot note, all this could be avoided by defining offense in terms of intent.


TPC 22.01A: assault.  It combines the assault and battery and focuses on intent. (2) ‘intentionally or knowingly threaten’…[but you can have a threat without the other person feeling threatened.  This is subjective from the perspective of the actor.]  (3) what’s the test for offensive or provocative? Reasonableness (objective).

H. Distinguishing Related Offenses: Defining the act required for Kidnapping

CL: Kidnapping involved the forcible asportation—carrying away—of a person from their own country to another.  This crime has been expanded into any malicious and unlawful abduction or confinement of another with the intent to hold for ransom or other benefit or to facilitate the commission of some other crime.

TPC p. 15, 20.02 and 20.03: distinguishes between ‘restraint’ and ‘abduct’.


Model Penal Code, Section 212.1 Kidnapping:  A person is guilty of kidnapping if he unlawfully removes another from his place of residence …or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes 1) for ransom, 2) facilitate commission of a felony, 3) inflict harm or terrorize, 4) interfere with the performance of govtal function.


Modern kidnapping consists of unlawful movement or confinement of another, perhaps with a particular offensive motive or some other aggravating factor.  A majority of courts hold that kidnapping statutes do not apply to unlawful confinements or movements incidental to the commission of other felonies.


Sometimes it’s hard to distinguish the crime of ‘false imprisonment’ and ‘kidnapping’.


If the confinement or movement is incidental to another crime, then they can’t be prosecuted of kidnapping.

Conviction of kidnapping would violate DP if it is only incidental to the commission of another crime.

State v. Dixon

D seized victim on street, choked her then dragged her off into the bushes where he forced her to removed her jeans.  He was unable to engage in sexual intercourse with her, but forced her to perform fellatio.  He began choking her again until she ceased fighting, then he digitally penetrated her.


Charge: aggravated kidnapping, aggravated assault, and attempted sexual battery.  

TC: the most serious offense was kidnapping, for which he got 20 years.  CtApp: reversed all but the kidnapping.

Issue:  Do separate convictions for all three charges violate DP when kidnapping is essentially incidental to other offenses for which a D has been convicted?


In Anthony this issue was whether movements or confinements merely incidental to robbery should sustain separate kidnapping convictions.  Held, a kidnapping conviction violated DP when predicated on movement or confinement that was merely incidental to an accompanying felony and not ‘significant enough, in and of itself, to warrant an independent prosecution’.


In State v. Coleman, a man emptied the cash register then ordered the attendant into the back room and raped her at gunpoint.  Held, abduction was incidental to robbery.  If the same restraint used to commit the rape is implicated in the kidnapping, then D cannot be convicted of both rape and kidnapping.  Thus any restraint in addition to that which is necessary to consummate rape or robbery may support a separate conviction for kidnapping.  It is the purpose of the removal or confinement and not the distance or duration that supplies a necessary element of aggravated kidnapping.[here they seem to change the test to a ‘necessary’ element instead of ‘incidental’]

In the present case, the aggravated assault was an act independent of both the kidnapping and the attempted sexual battery.  

Then it must be established whether the additional movement or confinement 1) prevented the victim from summoning help; 2) lessened the D’s risk of detection; 3) created a significant danger or increased the victim’s risk of harm.  In the present case D’s act of dragging victim 30 feet after the initial assault was beyond that necessary to complete sexual battery.  His movement lessened the risk of detection which increased the victim’s risk of harm.

Decision: guilty on all three counts.



1.  Kidnapping can often be committed by conduct other than forcible seizure of the victim.  Under the federal kidnapping statute, a crime is committed by whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward any person when the person in willfully transported in interstate commerce.

Under Iowa code confining or removing someone when you know that you have neither authority nor consent.

State v. Ramsey- A group of young men got a man to drive then to a secluded house where they said there was a party.  They intended to kill him and take his truck.  Miraculously he survived the gunshot wound from a bullet fired point blank to the back of his head. 

Holding, Iowa’s kidnapping statute does not require confinement to be substantial or forcible.  It is the removal of victim to a remote location by deception, rather than force or threat.

TPC you could have a kidnapping by deception, 20.01 ‘Restraint’ means to restrict a person’s movement without consent, so as to interfere substantially with the person’s liberty, bu moving the person from one place toanother.  Restraint is without consent if it is accomplished by force, intimidation, ore deception.


2. Perpetrator need not necessarily accompany victim across state law, in federal kidnapping statute.

General Principles of Criminal Liability: The State of Mind

A.  Types of Mental States

There seems to be a great deal of confusion over what is meant by specific and general intent.

At CL crimes were generally classified as requiring whether general or specific intent. 

In the MPC is based on two principles: 1) the ambiguous and elastic term ‘intent’ is replaced with a hierarchy of culpable states of mind: purpose, knowledge, recklessness, and negligence. 2) the ambiguity inherent in the distinction between specific and general intent.  Generally the same culpable state of mind must be proven for each element of the crime.

                Some courts have dispensed with the distinction in instructions to the jury.


Classnotes:  Emphasis is on intent, but its confusing because CL is not clear because of general and specific intent.


Model Penal Code “Elemental Analysis’ – ‘object’ and “level’ dimensions

The analysis suggests that the states of mind required for criminal liability be considered with regard to two dimensions. 

First, identify what the state of mind must concern (objective dimension).

Second, identify what state of mind concerning that object is required (level dimension).  A single crime may require mental states that differ in level depending on the object they concern.

                EX: in the following statute there are no mental elements (objects): 1. forcibly assaulting, 2) a person designated a federal officer; 3) engaged in the performance of official duties. 

If the court said, we’re going to read into the statute ‘knowing’.  This would make it a general intent crime.


If D is required to act with knowledge regarding element 1, i.e., D is aware that he is assaulting.  Thus, that D was aware or should have been aware of a substantial and unjustifiable risk that victim was a federal officer. If the fourth element were added to require the purpose of impeding the officer’s performance.  The objects can be act, circumstances or results.  The distinction is between states of mind that concern (have as their objects) matters that are themselves non-mental elements of the crime, and other states of mind that concern matters not elements of the offense.


A specific intent may usefully be regarded as meaning a mental state that has at  its object a matter which is not an element of the crime.  If the statute above also required that the person assault a federal officer in the line of duty with the purpose of impeding his performance, that would be specific intent.


Hypo:  Statute says:  it is a crime to 1) sell 2) unregistered 3) securities (TPC: 6.02, b,c.).  In B, … a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental state.  C. you must read ‘reckless’ into the statute.  If they read in ‘know’, to which of the elements of the statute apply?


Model Penal Code, Section 2.02 General requirements of Culpability, p. 309

(4) …such provisions shall apply to all elements thereof.  So it makes a difference where the commas are.  So in MPC you would have to establish knowing all the elements.  IF prosecution can’t prove one of them.  In Texas there is a statutory presumption.

B. The Standard State of Mind Requirement for criminal liability: “General Intent”

The analysis most usefully being with consideration of what state of mind is required concerning each element of the crime charged.  Thus, it is necessary to consider whether a D must have entertained purpose, knowledge, recklessness, or perhaps negligence with regard to the act constituting the crime, and any result required, and any circumstances that the crime requires be proved.


MPC section 2.02.  General Requirements of culpability

(1) Minimum requirements of culpability.  A person is not guilty of an offense unless he acted purposefully, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

State v. Andrews

D charged with carrying a loaded fire arm.  D argues that you have to read in ‘knowing’ into the statute.

D was convicted of unlawful carrying of a loaded firearm in violation of city ordinance. D appealed.  CtApp, held that firearm's loaded status was a material element of crime of ‘carrying a loaded firearm’ that necessarily required a culpable mental state to be proven by State.

Statute: It is unlawful for any person on a public street to carry a firearm on his person.

Elements: A person 1) carries an object, 2) the object is a gun 3) the gun is loaded.

The statute doesn’t call for a mental state.  But the prosecution added ‘knowingly’ into the charging document, because, he said, he thought recklessness is harder to show to the jury. 

As the degree of certainty increases the closer we come to knowledge.

MPC requires ‘practical certainty’.

TPC: 6.03 knowledge requires ‘reasonable certainty’.

A culpability applies to every material element of the offense, and the ‘loadedness’ is a material element of the offense.

D contends that the state must prove that she knew the gun was loaded.  State contends that it need only prove that D knowingly carried the gun – and not that she knew it was loaded.


Firearm's loaded status was a material element of crime of carrying a loaded firearm that necessarily required a culpable mental state to be proven by State, as the particular circumstance that firearm was loaded rendered otherwise innocent conduct (the carrying of an unconcealed firearm) criminal, and nothing in text of city ordinance or any other provision of city code suggested, much less clearly indicated, a legislative intent to dispense with proof of scienter for that material element.


Is it easier to prove recklessness or knowledge?  As a general proposition it would be easier to infer mere awareness of a possibility, then to infer recklessness.  No the manual tells them to allege knowingly with respect to elements 1 and 2, but recklessness to element 3.


Using the MPC, p. 312, note 1. you could argue that loadednes was not a material element but only included to conform to state law.


Looking at the statute, the common suggests that culpable mental state to what follows, or the ‘unless’-clause.



1. Purposeful ignorance.  If someone is stopped after crossing the border, and there is an odor coming from the car, but D could claim that he never bothered to check.  Some cts say you can get off the hook for purposefully being ignorant. This is the ostrich instruction.

3.  What’s the culpable mental state in TPC 21.08 Indecent exposure.  “A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire”.

This calls for specific intent, and there is recklessness, which sounds like a general intent.  Does ‘knowing’ [expose your anus] add anything to the meaning.  Or does this just suggest voluntariness.

MPC: 4 degrees – purpose (desire), knowledge (practically/reasonably certain), reckless(awareness of risk), negligence (didn’t have awareness but didn’t)

TPC: Intent, know, recklessness, negligence

So, ‘intent’ in TPC means a specific level of culpability. 

Negligence is not a scienter requirement, but the absence of scienter.

4. United States. v Gypsum.  Charged with violating the Sherman anti trust act.  D’s were price fixing.  But they won’t admit that they’re price fixing.  But here they use ‘probable consequences’ which sounds more like recklessness than knowledge.

In posters N things, they didn’t need a purpose.

In United States v. Bailey


Negligence- the MPC is reluctance to punish for negligence, because you are punishing someone for being ignorant.  But punishing for negligence could be a deterrent.

Although we include negligence as a culpable mental state, it is in fact the lack of a mental state.


State v. Cabrera(minority)

D went into a department store and picked up a brown bag.  It contained merchandise placed there by someone else.  Merchandise in excess of $300.  D was convicted in of second degree theft, and appealed.  The Supreme Court, held that: (1) second degree theft statute required proof that defendant intended to take property valued in excess of $300; (2) testimony of loss-prevention officer’s was admissible; and (3) D was not entitled to jury instruction regarding mistake of fact.
Reversed and remanded.


In order to convict a D of theft in the second degree, the prosecution must prove beyond a reasonable doubt that the accused intended to steal property or services valued in excess of $300.


Majority says you don’t need a culpable mental state as to value.  This court says you do.

Prosecution has to prove a value for the grading.  D argues that the value element is an essential element of the offense, so the culpability applies not only to his conduct, but the value.  So, he argues, prosecution has to prove not only that he intended to steal, but that he intended to steal someone worth over $300.  Because the statute was worded in such a way as to rank ‘value’ as an element, The court didn’t have much choice but to require proof of intent as to value.

In most jurisdictions do not make value an element of the crime, to which culpability will apply.


TPC: p13, death penalty, 19.03 (a)(1).

Prosecution will not only have to prove that D killed a peace officer or fireman, but that D knew it was a peace officer


Notes. 2. People v. Ryan, you have to know how much dope they have.  This is a minority, and legislature changed it rapidly.

C. State of mind Beyond General Intent

1. Awareness of the law Creating and defining the offense

Generally, you don’t have to be aware, when you’re stealing, that stealing is against the law.  Generally intent to violate the law is not an element of the crime.  But here it is.


Ratzlaf v. United States

Facts: A Federal law requires banks and other financial institutions to report any transactions exceeding 10K.  Moreover it is illegal to ‘structure’ – to break up a single transaction into two or more separate transactions for the purpose of evading this requirement. 


A person who ‘willfully’ violates this is subject to criminal penalties.


D went from bank to bank buying $9,500 cashier’s checks, having been informed both by the Casino to whom he owed his debt and by the banks.

D admits that he structured the transaction with knowledge of and purpose to avoid transactions in excess of 10k, but he denies knowledge that doing so was unlawful.

Charge: Evading reporting requirements, structuring financial transactions.


Issue:  Does D’s purpose to circumvent a bank’s reporting obligation suffice to sustain a conviction for ‘willfully violating” the anti-structuring provision? – No.


Reasoning:  To convict D the jury had to find he knew the structuring in which he engaged was unlawful.  The statutory provision calls for proof of willfulness on the actor’s part.  “Willfulness” generally means ‘knowledge of the reporting requirement” and a specific intent to commit the crime’, ie, a purpose to disobey the law.  Here you have to intend to commit a crime, for it to be illegal.

Ct says, there is too high a risk here, of conviction, because structuring is not inherently bad, not malum in se.


Liparota—you have to know that what you’re doing is against the law.  If their ambiguity, apply the rule of lenity.  Resolve the doubt in favor of D.


Dissent: it will be almost impossible to find a conviction under this rule.  Willful applies to each material element of the crime.  The person knows that these transactions are being regulated.  The Tax cases are distinguishable because they’re so complex.



1. Legislation changed the law, so D need no longer know the law to be convicted under the structuring statute.

2. Does Ratzlaf mean that D must have ‘knowledge’ of his legal duties as the term knowledge is defined by the MPC.


2. Specific Intents and the States of mind required by the property offenses

 “Conditional intents” –

Federal car jacking statute:  If a person say’s give me your car or I’ll kill you, then the person didn’t intend to kill unless the car was turned over.

According to Scalia: intent to kill means just that, because you can’t have intent to kill unless something else happens.


In Holloway the Ct instructed the jury that the Govt met its burden of proof by showing that the accused intended to cause the victim death or bodily harm if, but only if, the victim refused to turn over the car to the accused.  The specific intent to commit a wrongful act may be conditional.


Intent to Steal – Modern “Theft” Law

United States v. Turley -- Must a vehicle have been taken in a crime involving the intent to permanently deprive?  --No. Stolen vehicle includes any vehicle criminally taken with intent to deprive the owner of the rights and benefits of ownership, whether or not the crime required the intent to permanently deprive the owner of the vehicle.

Theft has been construed as including crimes not demanding the intent to permanently deprive.


Specific intent to permanently deprive can be satisfied by proof of indifference as to whether  V gets his truck back.—State v Gordon

Ds escaped from custody and stole a truck a gun point, telling the owner that he would take it and get it back to the owner as soon as possible.  Eventually the truck was abandoned for another car.

D argues that the evidence fails to warrant a conclusion beyond a reasonable doubt that D had the specific intent to permanently deprive requisite for robbery.

The law evaluates the animus furandi of robbery in terms of the detriment projected to the legally protected interest of the owner rather than the benefits intended to accrue to the wrongdoer from his invasion of the rights of the owner.

Law is shifting from benefit to D to injury to owner.

If D actually intended to use the truck only temporarily, is D correct in his fundamental contention that this, in itself, negates, as a matter of law, specific intent of D to deprive permanently the owner of his property? – No.


In Salerno, the court ruled: One who takes property without the authority of the owner and with indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently.

Here there is evidence that D was indifferent to whether the owner got his truck back or not, and therefore the jury could find that D had specific intent that the owner be deprived permanently of his property.


Classnotes: Prout did get his car back.  D says that this is unauthorized use, but not intent to permanently deprive.  They make indifference tantamount to intent.

TPC: Chapter 31.03 “Theft” requires deprive, and  31.01, “deprive” – to withhold poperty permanently.

So do you need to intend at the time you take it that the person will lose their enjoyment?  You may not intend when you take the property to keep it permanently, but you just left it abandoned it, then what was your intent?



1. Commonwealth v. Moore, in which D showed indifference as to whether the owner got his truck back, applying Salerno, the Court wrote:  Such indifference is not an alternative to the intent to permanently deprive.  Salerno said that one who shows this indifference ‘may’ be found to have the intent necessary for larceny.  It does not automatically suffice to prove the mental element of larceny; it merely may serve as the evidentiary basis from which the jury may infer that an intent to deprive permanently exists.

2. State v. Bautista

State of mind needed for larceny or theft.  Indifference related to recklessness or intent.  Bautista enjoyed riding a new car.  Wrote a check on an account that had been closed for months and never had the requisite sum to pay for it.  He returned the car when they asked him to.  But was there sufficient evidence of theft.  They could not prove any economic loss to Toyota.  He returned the car so he didn’t deprive them of the car.  S.Ct. found him not guilty.  Even though the dealership could not resell it as new, the State has to prove that he intended to deprive the dealership of a significant  value.


State v. Joy  (Vt. 1988), p. 350

Owner of a collection agency collects money for a fee from debtors but does not pay client because business is poor.  His books show that the client was someone they owed money to. He Files for bankruptcy.  He is sued by client for embezzlement. 

He’s claiming the jury should have been told he intended to pay them back.  Judge says his intent to pay is irrelevant on intent of embezzlement.

Appeal:  Held, intent to repay is no defense.  He fraudulently converted money coming into his care.  His intent was established at the time of the conversion.  Ct says that the intent to repay is just wishful thinking.  Note: 352, an intent to return the identical property has be held to lack fraudulent intent.


TPC: theft statute, 31.03 Theft

A person commits an offense if he unlawfully appropriates property


MPC, p 353

Deals with when a person doesn’t have the intent to deprive, but the person creates a substantial risk.

D. State of mind less than general intent: the Strict Liability Offenses

Strict liability in torts is liability without fault.  In criminal law strict liability , means no culpability required as to elements of the crime.  Sometime strict liability offenses is used interchangeably with public welfare offenses.  Some time SL is used in cases where were areconcerned with public welfare.


Hypothetical statute: “it is an offense for any person to shoot a bald eagle.” 


                If there is no culpably mental state, then we usually read one in.  If we don’t then this is a strict liability crime.  If he says, I didn’t know it was a bald eagle, this is a mistake of fact.  If he says “I didn’t know it was illegal”, it is a mistake of law.  If you insert ‘intentionally’ into it, does intentionally modify the shoot or the bald eagle, or both?

Issue:  when do we impose strict liability, conclude that there is no culpability requirement with respect to the crime.


Staples v. Unites States

The National Firearms  - Act criminalizes possession of an unregistered "firearm," including a "machinegun," which is defined as a weapon that automatically fires more than one shot with a single pull of the trigger.

Elements of the statute: It is unlawful 1) to possess a gun, 2) the gun is a firearm and 3) it is not registered.

Freed involved a mistake of law, because D didn’t know he had to register it.

Here, D claims that he didn’t know it was a fire arm.  This looks like a mistake of law, but how do you find out what a firearm is for purposes of registration, you have to look at the statute.

You can modify a semiautomatic into an automatic weapon.  D claims he didn’t know he owned an automatic weapon.

What’s the mens rea required?  He has to know that it has the characteristics of a firearm.  While ignorance of the law is no defense.

In Morrissett: man said he thought the shell cases were abandoned.  Jackson talked of a class of offenses which are public welfare offenses.  There are malum in se and malum prohibitum. 

In Balint, D didn’t have to know that what he was selling narcotics under the law.

In Dooterwight, the shipper has to ensure public safety by complying with the statutes.

Note. 10. p 357. Man in business of frozen liquids.  Shipper was claiming he didn’t know of the regulation.  They are not requiring he know the law, but what the facts that would put him into the ambit of the law.


Liparota:  unauthorized acquisition of food stamps.

362, III.  When think the penalty was not intended by congress to impose a strict liability requirement.

You don’t impose strict liability in cases that you send someone to jail for ten years.   Speeding is a strict liability offense.  Your intent is irrelevant.  But you only have to pay a fine.  It is a regulatory type offense.

Its not clear when to impose strict liability.
Held: To obtain a conviction, the Government should have been required to prove beyond a reasonable doubt that Staples knew that his rifle had the characteristics that brought it within the statutory definition of a machinegun.
(c) The potentially harsh penalty . Where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.
Notes.  When to impose strict liability

If the actor is in a good position to protect the public, when it would be too hard for the govt to proof, but usually when govt is prosecuting a strict liability offense, they try to prove that they’ve given prior notice.

Chapter 6 TPC: impose strict liability only when the statute plainly dispenses with the requirement of mental state. 

Staples tells us that they will look at the nature of that activity, if there is grave danger to the public they will think more that they intended to impose strict liability than that they did not.


If shooting a bald eagle is a strict liability offense does D have a defense as to whether it was a bald eagle or not?  no.  If the penalty is just a large fine, and the conduct is killing a national bird, it would probably be strict liability.  But if the punishment is imprisonment or a very large fine, then D must act knowingly.

E. Defenses Consisting of Disproof of State of Mind

The defense is significant because it provides Ds the opportunity to persuade judges and juries the required state of mind was in fact not present.  The Defensive approach discussed here involves in essence the argument that in light of certain facts the prosecution has not proven beyond a reasonable doubt that the accused acted with the culpable mental state required by the charged crime.

CN:   true defense: “I did it, but I’m still not guilty”

Not true defense:  “I didn’t do it.”

1. Ignorance of Mistake


MPC, p 369, Section 2.04.  Ignorance of Mistake

Characteristic ignorance or mistake is  a defense if it negatives a culpable mental state, if it otherwise


a. ignorance or Mistake of “fact”


Wilson v. Tard

Habeas Corpus is a collateral attack.  D pleaded guilty to manslaughter after conviction was reversed.

He’s complaining that he has a constitutional right to be presumed innocent and that state has a constitutional burden of proving his guilt beyond a reasonable doubt.  He was charged with aggravated manslaughter (extreme indifference for human life), and simple manslaughter (recklessness). The judge stressed that the determination of the state of mind is the most critical.  But D has the burden of proving he made the mistake. Jury is told that D has a duty of proving by the preponderance of the evidence that the mistake was reasonable, and if it negates the culpability of the higher offense, they can go with the lower offense.

The jury returned with simple manslaughter.

Mandatory presumptions are not allowed as a matter of law.


The burden of proof was shifted to the D, and in Mullaney said that you can’t shift an essential element from the prosecution to the D.

Jury needs to be told that if they have a reasonable doubt that D had a …state of mind then they can acquit.


State v Sexton

D didn’t think the gun was loaded

380, Example: Hawaii It’s a rainy day, and people leave their umbrellas in the foyers, D leaves and picks up an umbrella which turns out not to be his own.  He intends to appropriate it, but doesn’t intend to deprive someone else of their property because he thinks it’s his own.  This might have been careless, but my honest belief, even though unreasonable, is enough to negate the culpability.


In Texas, is your honest mistake a defense, only if it’s reasonable…  If you get a mistake of fact instruction, the jury can’t consider it unless it’s reasonable. 

p. 6, TPC:  in Texas it has to be a reasonable mistake.

CL: in a specific intent crime, mistake is a defense if it is an honest mistake

MPC, the mistake doesn’t have to be reasonable, which means might even be an unreasonable mistake.

D says, I didn’t know the gun was loaded.

381, NJ statute allows a defense of ignorance of mistake if the defense and … reasonably arrived at the conclusion underlying the mistake. (this looks like reasonableness)

But the court acts like this isn’t even there.  It suggest instruction:  if you find his mistake was reckless, he can be convicted of reckless manslaughter.  You just take care of mistake in you instructions on what the state has to prove.


Hypo in TX: A mother puts child in scalding hot water, she claims she didn’t know it was hot.  In effect you are making a lower degree of culpability..

What’s the difference between a reckless mistake and a negligent mistake? ()..


Class note: State was faced with the problem of D’s belief that gun was unloaded.  But there was no specific mistake of fact.  The Statute allows for a mistake of fact defense.  Ct recognizes that mistake is relevant as it relates to D’s state of mind as it relates to the offense.  A reckless mistake –.


In Tex, it is a reasonably mistake, thus a non negligence mistake, if the jury is to consider it.


1. By requiring it to be reasonable, you’re making it negligence.


3. Some courts…Do you want the mistake of fact instruction?  Maybe not, because they’ll say that the mistake be reasonably which means negligence.


b. Ignorance or Mistake of Law

Maxim:  Ignorance of law is ‘no excuse’.

Exception:  if the statute has a phrase that D does X knowing that it is against the law.  Then knowledge becomes an element of the offense.

Historically there were fewer crimes and people could be expected to know them.  But today the laws have become so vast and complicated that people cannot be reasonably expected to know them.


Hypo: if a fellow goes to NJ and gets married, but his Arkansas divorce was not a valid divorce.  He’ll say, I though I was divorced.  He knew the bigamy law, but he didn’t know Arkansas divorce law.  Would the mistake of Arkansas divorce law negate the state of mind required for the crime.  If he didn’t know bigamy was a crime in NJ, would this negate the intent elements?  No, he still intends to marry.


Cheek v. United State—must the belief be reasonable?

Airline pilot didn’t pay his income tax because he thought it unconstitutional.  He had attended seminars, and studied the constitution and had sincerely formed a belief that tax laws were unconstitutional.

Cheek is actually making two claims: 1) that the tax laws are unconstitutional, 2) his wages are not income and thus are not required to be reported.

The court instructed the jury that if it found that Cheek “honestly and reasonably believed that he was not required to pay income taxes or to file tax returned, a not guilty verdict should be returned.”

Cheek is complaining that the jury was instructed that the belief had to be reasonable.

Generally, p390., ignorance of law is not excuse except in tax law, because it is so complicated.  His mistake of law here is a mistake.  Even if it is a reasonable mistake, if he subjectively believed it.  If its reasonably, we’re measuring his mistake against the reasonably prudent man.  But if we’re measuring his

391. note 24.  Is there a difference between disagreeing with the law.

392.  Can a jury consider the reasonableness of the belief?

If his belief is really goofy, the jury will say that he didn’t really have that belief.

Objective: what a reasonable person under the circumstances would have thought.

Subject: what this guy actually thought.

What about his argument that the tax laws are unconstitutional?  This does not negate his intent.  His claims suggests the opposite.



Bottom line: the statute has been interpreted to require a knowledge of the duty of the law.

Ostrovsky v. State (1985)

Convicted of violating the limited Entry Act.  “It is unlawful for any person to operate gear, within water subject to the jurisdiction of the state, for the commercial taking of any fishery resource without a valid entry permit.”  He fulfilled all of the elements. 


Ostrovsky claim that he got advice from his attorney, read an article in a journal, and he relied on the judges ruling saying that it is unconstitutional, but that ruling is on appeal.

Should it be a defense that you relied on a court ruling when that decision is on appeal?


398: Lafave and Scott say there should be a reliance defense, but there are some limitations.  If it’s a lower ct decision no, but if it’s a higher court yes.  You can rely on a lower courts decision if it’s reasonable, and it’s not reasonable if it’s on appeal.


Alaska didn’t adopt a defense for mistake of law.  Ct says we can’t assume all the time that the legislature knows what they’re doing. But we will have to interpret a ‘mistake of law’defense to be there, because otherwise we would violate DP. 

399.  We believe that the defense of reasonable mistake of law must be a limited defense…

It is not unreasonable to rely on a lower courts decision that was on appeal. Because he is not relying only on the lower court decision, but also on his attorney.


Ostrovsky v. State (1986)

TC: Ostrovsky convicted of , did not prove his defense with the preponderance of the evidence.

App.Ct: Attorney says he never told him it was ok to fish only told him his consequences.

Thus, he understood the risk.  And they don’t want encourage people to gamble on whether the law is good or not.


Notes. 2. Bsharah v. United States.  The station manager did not have the real or apparent authority to tell them that they could carry a handgun into the city.

3. People v. Marreo.  Police officer thought he could carry his handgun in NY.  But he was wrong.  Since the statue in fact never gave him that authority, he could not raise it.  It is limited… they reject the broad, reasonably reliance defense of the Model Penal code.


369. MPC. Ignorance or mistake of fact is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.  The defense is not available if the D would be guilty of another offense had the situation been as he supposed.


MCP Reliance:  A believe that conduct does not constitute an offense is a defense when he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in a statute, a judicial decision, and administrative order, or a public officer.


Hypo: “It is a crime to kill a bald eagle.”

mistake of fact defense?

CL:  – no

MPC:  you read in ‘recklessness’ to kill a bald eagle.  You have to be aware of the fact that it is a bald eagle.  Yes, even an unreasonable mistake, as long as it is honest.

TX:  yes, if reasonable.

Mistake of law defense?

CL: no, ignorance of law is not excuse.

TPC: only if he could show reasonable reliance. 2.04(3) Ignorance or Mistake.  What if the game warden said it was no longer illegal to shoot them?  Would he have a defense?  No, he’s not a high enough official.  And it probably wouldn’t be reasonable.  And if there was a judicial opinion somewhere that state the bald eagle statute, and he read it himself, it’s unreasonable, but it’s honest.  But if his lawyer told him it was legal, MPC does not allow for bad legal advice.


Hypo:  if a law clerk told a man he could build a house where he in fact couldn’t, could he rely on this?  No, it was not high enough in the chain.

Hypo:  What if the statute said ‘knowingly kill a bald eagle.

CL: specific intent crime – yes, honest if intend is specific; there’s a defense of honest mistake for specific intend crimes.


Hypo:  D is charged in tex with carrying an a firearm.  In Oklahma what he did was a misdemeanor, but in texas it would have been a felony.  Does this mistake negate his intent.

TX:  It is a crime to intentionally possess a fire arm as a convicted felon.  As a Texas lawyer you wanted to characterize his mistake as a mistake of fact, not of law, because if it’s a mistake of fact then he has a defense; but not if it’s a mistake of law.

MPC: says it makes no difference of whether it’s a mistake of law or fact.  A mistake of some other law (property law), that forms an element of the crime, should be treated as a mistake of fact.

CL: it’s a mistake of law.  So no defense of a belief that crime was a misdemeanor.

Is the reasonable reliance defense does not negate culpability.


c. Claim of right

Bartlett v. State

This is mistake as to non-criminal law.

D thought he had a claim of right to the truck he had just sold to V, because V owed him money and th title of the truck was still in his name.

If a person actually had an honest belief that he was entitled to the property that negates the elements of the crime.

Hypo:  X barrows money from Y, X doesn’t by Y back, so X thinks he is entitled to take Y’s watch. He’s arguing a mistake of fact rather than a mistake of law.  In Texas. He will first hav to establish that it was a reasonable mistake.

When Bartlett claims he could take that truck because the guy owes him money.  He knows that it’s a crime to deprive someone of property.

Bottom line:  a mistake of law about a different area of law, such as a different state’s grading system (misdemeanor, felony), or property law, or contract law, or divorce law (if he thinks he is divorced a remarries), it should be treated as a mistake of fact.

Under the Model Penal Code, it makes no difference, because a mistake of law or fact is a defense.

The Defense is that he is mistaken about his status.


1. People v. Tufunga.  The claim of right doctrine is inconsistent with sound criminal policy.  The law should discourage self-help, especially by means of threats or force.  Insofar as robbery statutes permit them to do so, the courts have held claim of right doctrine unavailable in prosecutions for robbery.  An Alaska ct did this, reasoning that while theft requires that the property be ‘of another’, robbery is defined as requiring only the taking of ‘property’. Tufunga ruled that claim of right will only apply when defendant believes he has a bona fide claim of ownership, but the doctrine does not appoy to forcible takings intended to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated.”

2. Johnson v. State.  D got the wrong pizza and demanded his money back with a pistol. He got more money then he gave. 

Held, once the money changed hands the transaction was complete and the money was the pizza’s money,.  He will only be not guilty if he takes the money before they take the money.

3. Lawson.  It is not criminal trespass to be on land that one genuinely believes one has permission to be one

Jackson v. Commonwealth.  Defendant testified that he belived a form was his because it contained personal information, and therefore refused to allow a rehab personnel to leave the room with it.  Court declined the defense and upheld a conviction for abduction.

2. Intoxication

There has been a reluctance of courts and legislatures to recognize voluntary intoxication as a defense to a crime.  At CL it is a defense only to a specific intent crime.

In Montana and Texas, voluntary intoxication is never a defense to a crime.

416, Evers: the underlying principle of the statute


Question before penal code: - Because the jury may be very unsympathetic to a defense of intoxication.

That’s why insanity is often raised only in death penalty cases.



2.08 (2) If the actor [voluntary intoxication is not a defense to a crime that can be committed recklessly]


Weaver v. State

Facts:  He was tripping out on two hits of LSD.  And went crazy and as a result of his behavior he was convicted of a bunch of crimes – confinement, battery, etc.  Attempted murder requires the intent to kill a person

- Weaver argues that the State failed to disprove his defense for voluntary intoxication.  We agree.

Rule: Weaver had the burden of presenting the evidence of intoxication that if believed, is such that it could create a reasonable doubt in the mind of a rational trier of fact that the accused entertained the requisite specific intent.  He met this burden.

Thus, the state had the burden of establishing beyond a reasonable doubt that the D was not so intoxicated as to negate his ability to form the required intend.

Reasoning:  The Actus reus was present.  But did he have the general intent to kill.


The jury convicted him.  So the Majority is trying to say that as a matter of law, he could not have formed the intent for murder.


Here, defendant formed no plan of action which he then carried out.  None of his actions indicate he was able to devise a plan, operate equipment, instruct the behavior of others or carry our acts requiring physical skill.

Voluntary intoxication relieves a D from criminal liability under certain circumstances, ie., when the D intoxication prohibits him from forming the requisite mean rea.

DISSENT(followed by the Supreme Ct): the same fact the court bases its decision on that Weaver was incapable of forming the mens rea – acts of physical dexterity – show that he did perform acts requiring skill and planning. 


Classnotes:  If someone doesn’t have a defense of voluntary intoxication in this case, then there are probably no cases in which someone would have



2. What if you defined battery as ‘intentionally and knowingly causing injury to another,’ should voluntary intoxication be a defense under common law?  Here battery is a general intent crime.  But attempted murder is a specific intent crime.

It’s specific intent if it relates to some… So it should be a defense to attempted murder but not battery.


3. Problems with Due Process.  State v. Skipper: There is no violation of due process in so conditioning a D’s right to a jury instruction on the ‘defense’ if the jury is not otherwise told that it may not consider any evidence of intoxication produced by D in determining whether the prosecution has proved its case.


Defensive Use of Intoxication—Related Conditions

Involuntary Intoxication

Hypo:  If someone had put the LSD on the back of a stamp and Weaver licked it, then it would be involuntary intoxication.       


If intoxication is ‘involuntary’ it is generally treated quite differently than voluntary intoxication. Courts are often willing to recognize that involuntary intoxication can give rise to a defense to criminal liability.

Torres v. State Ct recognizes a defense of involuntary intoxication despite the legislature’s  provision that voluntary intoxication is not to be considered in determining criminal liability.   The test of whether involuntary intoxication that should be a defense is the same as insanity defense.


TPC  8.01: jury has to decide that as a result of the involuntary intoxication the actor did not know that his conduct was wrong.


People v. Caulley.  Involuntary intoxication as a defense often depends on whether the state recognizes insanity as a defense.


Involuntary intoxication is when:

                1) D was unaware that the substance he was ingesting was intoxicating or

                2) D was compelled by quite direct action of others to ingest a substance he knew was intoxicating.  Intoxication is not rendered involuntary simply because D did not intent to become intoxicated or to become severely intoxicated.


Settled Condition Caused by Intoxicants

Defendants seeking exculpation on the basis of intoxicant-related considerations have often been permitted to invoke what has been called the settled insanity doctrine.


In Bieber v. People.  It must be ‘settled insanity’ and not merely a temporary mental condition which will relieve one of the responsibility of his criminal act.  Here defendant claimed to have ‘amphetamine delusional disorder’ caused by chronic use of the drug.  Held, So-called settled insanity’ such as Bieber’s claimed amphetamine delusional disorder is ‘ intoxication’ within the meaning of the statute, which defines intoxication as a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.  Hence, it cannot give rise to insanity.


Montana v. Egelhoff

Evidence that Egelhoff had been quite intoxicated when he allegedly killed the victims was admitted in support of his contention that he had been so intoxicated he could not have killed the victims at the killer did.  At trial, the jury was told not to consider evidence of intoxication.  The Montana supreme Court found this violated due process.  The US Supreme Court reversed.  Though there was debate over whther the statute was an evidenciary one or substantive one.  Dissent said evidentiary and therefore the jury must be able to consider all the evidence, thus violating DP because it prevents D from putting forward a defense.

Ginsburg: she was the swing vote.

Majority: Scalia.  It goes to statute’s definition of a culpably mental state, and is no violation of DP. “TO obtain a conviction, the state must prove only 1) the D casued the death of another with a ctual knowledge or purpose, or 2) that D killed under circumstantes that would otherswise establish knowledge or purpose ‘but for’ D’s voluntary intoxication”.

Egelhof makes clear that laws making voluntary intoxication irrelevant ro criminal guilr are acceptable inder the federal constitution.

Homicide: Grading the Criminal Causation of Death

Both voluntary and involuntary manslaughter --- are ‘homicides without malice aforethought on one hand and without justification or excuse on the other.”


In all voluntary manslaughters, the actor’s state of mind which, but for the presence of legally recognized mitigating circumstances, would constitute malice aforethought.

In all Involuntary manslaughters, are killing in which the actor’s state of mind, without any consideration of any issues of mitigation, would not constitute malice aforethought.


The 8th Amendment prohibition against Cruel and Unusual Punishment prohibits a mandatory penalty of death for any particular homicide crime.  The death penalty may be imposed only if the sentencing authority is permitted to consider a wide variety of possible mitigating considerations relating to the offense and the offender.

A. Statutory Formulations

All killings that was not otherwise justified by defense.  At CL all felonies were punishable by death.  But the clergy had their own courts which did not impose the death penalty.

Then we separated manslaughter and involuntary manslaughter.  And now thaey have all different kinds of murder, grading.  The California is more of a traditional approach.  Whereas the MPC is more modern.

2. The model Penal Code: A modern Statutory approach, p 440

TPC: 19.01 this places the burden on the D to establish whether it was a passion crime.

Cap Murder

Murder 1st

Murder 2d


Crim. Negl. homicide

Model Penal Code


1) a human being means a person who have been born and is alive.




Criminal homicide constitutes murder when

(a)  it is committed purposefully or knowingly



In most jurisdictions it is not murder to kill a fetus.

In TEXAS murder is committed on an ‘individual’ and a fetus is not an ‘individual’.

In California includes fetus even if it is not viable.


Death defined, TEXAS: cessation of spontaneous respiratory functions and circulatory functions.  But if the person is on life support, then the death occurs with cessation of brain function.


1. In those jurisdictions following the traditional rule, no homicide occurs even if D intentionally destroys a fetus, such as when a man forced his hand into his wife’ body and destroyed the fetus.

Hughes v. State.  The traditional rule that you cannot murder a fetus is based on the difficulty of determining whether a fetus is alive at the time of D’s actions.  But modern medical skills have changed this.  Thus the old rule should be changed.

If a fetus is born and then dies from injuries inflicted before birth, this is homicide.  Although the fetus must be born to become a person for homicide purposes, there is no requirement that the fatal injuries be inflicted after birth.


2. When does death occur for the purposes of homicide?  The traditional definition of death defined it in terms of cessation of heartbeat and respiration.  But courts have indicated a willingness to accept a definition of death in terms of an absence of brain activity, ie, brain death.


3. CL a person could not be convicted of murder unless the victim died within a year and a day from the time the fatal blow was given or the cause of death administered. 

442. The year and a day rule doesn’t make sense any more in light of modern medical advances.  In Texas the year and a day rule does not apply.  It can be years after the act.


B.  Killings With ‘Malice aforethought, p. 444

p. 445. Four categories of murder under the rubric of Malice aforethought.

1) intent to kill

2) intent to cause serious bodily injury

3) depraved heart or extreme indifference -nonintentional

4) felony-murder - nonintentional

TPC, p 13, 19.02 (b)(2)-Murder – a person commits an offense if he (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.


Compare to NJ p. 446.

Define serious bodily injury, p. 3 same as NJ definition.


Hypo:  If you swing a baseball bat at someone’s head, could you be guilty of murder under 19.02b2 murder?  Yes, because such an act normally causes serious bodily harm.  But what if the person swing at the person’s leg, which inadvertently causes a blood clot and ends up  killing the person; he would have killed him, but he did not intend to kill him.

p. 447.  Depraved heart is a puzzler.

MPC.  2.012 a recklessly committed killing exercising extreme indifference to human life.


People v. Roe

Facts: The wounds were gross, his entire left arm was blown away.  Fifteen year old inserted both blanks and live shot into a shotgun and fired it at his 13 year old friend.  He was convicted for depraved indifference murder. There were 5 shells, two dummy’s and three live; he takes two.  So there could either have been 75% to 50% of the gun discharge, which suggests a high probability.

Issue:  Whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

CN rule:

1) He has to be aware of the risk of death (subjective), and

2) high degree of risk (objective) [it’s hard to find that D was aware of this]

Same state of mind for Depraved Indifference-murder and manslaughter.

The problem is proving extreme recklessness.

Rule: Depraved indifference murder, like reckless manslaughter, is a non-intentional homicide.  It differs from manslaughter in that it must be shown that the actor’s reckless conduct is imminently dangerous and presents a grave risk of death; in manslaughter, the conduct need only present the lesser ‘substantial risk’ of death.  The difference depends on the wantonness of defendant’s act, ie., whether they were committed under circumstances evincing a depraved indifference to human life.  This is not the mens rea element which focuses on the subjective intent of the defendant, as it is with ‘intentional murder’; rather it involves and objective assessment of the degree of risk presented by D’s reckless conduct.  The only culpable mental state required is recklessness. 

- Evidence of the actor’s subjective mental state is not pertinent to determination of the additional element required for depraved indifference murder: whether the circumstances bearing on the nature of a D’s reckless conduct are such that the conduct creates a very substantial risk of death.

Application: D has a knowledge of guns.  He loaded the magazine without regard to the order in which the shells were inserted, he did not know if he had chambered a ‘live’ or ‘dummy’ round.

The evidence is sufficient to support a finding of the very serious risk of death required for depraved indifference murder.  Because the escalating factor is based on objective assessment of the circumstances surrounding the act of shooting and not the mens rea of the actor, Ds emotional state after the killing is of no consequence.

DISSENT:  The legislative intent behind depraved murder does not support the disproportionate level of maximum blameworthiness.  p. 454.  This crime is classified as murder and the murder penalty should be imposed only when the degree of risk approaches certainty; that is, as the point where reckless homicide becomes knowing homicide.



1. Some courts assume that only if an accused’s conduct creates a high risk of death to many persons does it constitute depraved indifference murder.

-Windham v. State.  The traditional view is that an act directed at and endangering only one person would not suffice under such a statute because the accused’s act must have manifested a reckless indifference to human life in general, But this may be an outmoded distinction.


2. What mental state requirement is most consistent with principles of criminal liability?  Some courts (NY) require only awareness of a sufficient risk to constitute recklessness, not of the greater risk necessary for murder.  Others (Mass) require that D to have actual, subjective knowledge of circumstances that objectively would cause the reasonably prudent person to realize the likelihood of death. 


3. What will not support a verdict of guilty under such a provision?  People v. Asaro:  striking a victim once with a baseball bat during a barroom brawl was not so wanton as to justify a depraved indifference murder conviction.  However, striking V with a loaded pistol and having it accidentally discharge is enough to find sufficient risk of accidental discharge of the gun and death, and that D was aware of this risk even though he subjectively did not intent that the gun discharge.


C. Premeditated and  Deliberate Killings:  First Degree Murder

Pennsylvania formula: 1st degree murder is premeditated. 2d are the others.

See. Cal statute, 137

These all require some sort of thought beforehand or planning.  It is based on the notion that killings that are planned are more serious than killings that are not. 

But there have been some serious problems applying this formula, because of the collapsing of the premeditation and deliberation.  Premeditation is to think about it before hand; deliberation suggests not only that you’re thinking about it but that you are weighing the alternatives. 

strangulation alone is not evidence of premeditation-- State v. Bingham

Facts:  D manually strangled and raped V.

Issue:  is there sufficient evidence of premeditation for aggravated first degree murder?

First degree murder: requires a premeditated intent to cause the death of another.

Second degree murder: requires intent to cause the death of another person but without premeditation.  Premeditation must involve more than just the passage of time.

Having opportunity to deliberate is not evidence the D did deliberate, which is necessary for a finding of premeditation.  The opportunity to deliberate is not sufficient.

Holding: Manual strangulation alone is insufficient evidence to support a finding of premeditation.


1. Appellate Courts generally defer to jury findings that D did reflect, if they determine that there was enough time to reflect. 

- even where a gun is capable of being fired rapidly, some amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger.

2.  State v. Ramirez, Arizona.  There’s a difference between time to reflect and actual reflection.  Proof of actual reflection is not required.


3. Appellate courts sometimes reverse convictions of premeditated murder if the evidence shows provocation or concern by D for his safety.  In State v. Corn, D did not exhibit any conduct which would indicate that he formed any intention to kill V prior to the incident in question, because he was in a state of passion (when, after being called gay be grabbed a shot gun and shot V.)


CN:  Washington case: Immigrant working on docks.  A fellow worker committed an act of sodomy on him, and then behind his back started making fun of him.  And so his anger kept building and building.  Then he decides to get a gun and killed him.  Is he guilty of premeditated murder?  - The jury found him guilty.

If his tormenter had made an obscene jester, then he might have an excuse.  Thus the gesture was the immediate provocation, and wouldn’t be based solely on the previous events.


4. Who are more dangerous killer, the impulsive or the deliberate?  Probably the impulsive, but it’s treated as a lesser crime.


Some statutes have done away with premeditation deliberation, such as in California, and use special circumstances.

TPC 19.03: Capital murder--

Deciding whether D should die or not generally depends on how heinous the crime is.

D. Provoked or Otherwise Mitigated Killings:  Voluntary Manslaughter

TexasPC, 13, 19.02 (d).  If D is found guilty of murder the D may raise the issue of whether he acted under the immediate influence of sudden passion arising from an adequate cause, and if proven will convert murder into second degree murder.

This is objective -- adequate cause is not defined by someone who is easily aroused.


1) reasonable/adequate provocation (adequate cause) – objective

2) Actual provocation. Subjective

3) cooling time – a reasonable person’s passions would not have cooled.  Objective.


Traditional approach: At CL a killing will be reduced from murder to manslaughter if there is reasonable/adequate provocation (this is objective). 

Homicide constitutes voluntary manslaughter (VM) where the perpetrator kills with a state of mind which, but for the presence of legally recognized mitigating circumstances, would render the killing murder. Comber v. US

- Whether there is evidence to support a finding that D acted ‘solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation is a question of law.  Pace v. State.

- Words alone will not in any case justify the excitement of passion so as to reduce the crime from murder to Voluntary Manslaughter where the killing is done solely on account of the indignation aroused by the words.  Mack v. State.

- Cooling time.  The emotions that might linger several hours after the discovery that his brother had been attacked are insufficient to cause a reasonably person to lose mastery of his understanding.

MPC: substitute ‘extreme emotional disturbance’ (EED) for the traditional ‘adequate provocation’.  But how much has provocation become subjective? ; what if accused was mentally impaired?

- reasonableness is determined from the view point of a person in D’s situation under the circumstances as D believed them to be.

- An underlying mental disease may be considered by a jury in making its determination of whether D’s explanation or excuse for his alleged EED is reasonable under the circumstances as he believed them to be.  But the mere presence of mental illness alone does not establish EED.

- the requirement that provocation be adequate also includes the requirement that it be uninterrupted.

MPC applied:

State v. Person

D is a large black man, with a history women battery. 

Issue:  Whether D was entitled to the affirmative defense of EED because D’s trial testimony had contradicted such a defense? – No.

Facts:  D was in the process of breaking up with his fiancé V.  She was seeing someone new, and because of D’s violent behavior, she had a restraining order put on him.  One day while he was in her apt to collect his belongings, she entered carrying mace and two knifes.  D says she instigated the struggle by spraying him with mace.  D stabbed her to death and then turned himself in to the police.

D’s defense is that he acted under EED.  A trial he testified that he was not upset.

Statute:  a person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person …except it shall be an affirmative defense that D acted under the influence of EED …the reasonableness of which shall be determined from the view point of a person in D’s situation under the circumstances as D believed them to be.

Two issues:  1) does D’s trial testimony preclude an instruction on EED because it directly contradicted the defense, and, if not 2) was there sufficient evidence to warrant the instruction?

1) No.  D, when asked if he was upset because Moody was moving in on his gal, said “not really’.  Because the jury was free to disbelieve D’s testimony, his assertions therein did not preclude a jury instruction on EED. 

                A jury may be instructed on a defense theory, even if D has testified to facts that contradict the requested charge, if there is sufficient evidence to warrant the instruction.

2) Yes.  Because D bears the burden of proof of an affirmative defense, we hold that D is entitled to the instruction of the affirmative defense of EED on whether there was sufficient evidence for a rational jury to find that all the elements of the defense are established by the preponderance of the evidence.  Here because of his erratic behavior before and after the killing, the jury could reasonably conclude that D committed the murder under the influence of EED for which there was a reasonably explanation or excuse.

Therefore, conviction reversed, and remanded.

He claims he was entitled to a jury instruction of extreme emotional disturbance.

Issue:  was he entitled to that instruction if he said he wasn’t very upset.

There was evidence that he was upset because he called his friend and told him he was going to kill her; he also called his girlfriend and said he was going to kill her and Moody.  Then he turns himself in and seems upset.


At re-trial, defense introduced a number of expert witnesses testifying as to D is suffering from intermitted explosive personality disorder, which causes him to overreact.  Jury received this instruction: You must measure reasonableness from the viewpoint of a reasonable person in D’s situation under the circumstances as the D believed them to be.”  Jury returned a verdict of guilty of murder.


State v. Person (II)

CN:  What is he complaining about after his conviction on retrial? – His instructions.

D claims jury instruction was in error because it failed to explain that when considering D’s ‘situation’ the jury should take into account testimony regarding his mental illness.

- We disagree.

The drafters of the MPC were purposefully ambiguous with the word ‘situation.’

The test to be applied to any part of the charged is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.

The court is not required to instruct the jury that it should consider the D’s mental illness as a part of the reasonably explanation of excuse for his extreme emotional disturbance. 

- Despite the ct’s rejection of D’s proposed charges, the instructions that the court gave accurately explained the law, and it was not reasonably possible that the charge, when considered as a whole, misled the jury.

- the term ‘ situation’ would not have misled the jury into thinking that it could not consider the evidence of D’s mental state.



1. Would an instruction of ‘adequate provocation’ instead of EED made a difference in Person’s case?

- ‘adequate provocation’ is provocation which would engender passion in the reasonable person.  At CL, catching your wife in adultery might be enough, but probably not if someone else told you she’s was cheating on you.


Hypo:  A fireman has been out fighting fires all night, he comes home tired and finds his wife in bed with another man, and shoots him.  The jury can consider that he was tired, but not that he was hot tempered.


2. Should ‘situation’ take into account D’s mental state? – intoxication?

Under the MPC it would take into account intoxication and mental conditions.  The MPC has significantly expanded what evidence the defendant can introduce to lower the degree.


Should the objective aspect of the mitigation standard be applied by using a reasonable person with the accused’s characteristics?   In People v. Dooley the ct did not allow an instruction to include whether a reasonable person with mild depression and substance abuse problems would have been adequately affected by the provocation:


3. Should the reasonable person be one affected by intoxicants?

State v. Thunberg.  The traditional approach is that the adequacy of provocation is to be judged from the perspective of a reasonable sober person.

- The critical element in the MPC is the part requiring reasonableness be assess ‘from the view point of a person in the actor’s situation.”  Where the word ‘situation is deliberately ambiguous, to allow for the consideration of blindness, shock or traumatic injury, and extreme grief.

- In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen. MPC leaves it to the parties to argue the relevance of D’s intoxication to the issue of whether provocation exists.

4. Mutual combat as adequate provocation to reduce a killing from murder to manslaughter.  “It is not necessary that blows have actually been struck for mutual combat to exist, but is any blows have actually been struck it is not material which participant struck the first blow or that the deceased may have struck no blows at all. 

- State v. Williams.  One that kills another during mutual combat presumptively acts without malice and, instead acts upon sudden heat of passion produced by provocation adequate to obscure the jdgmt of an ordinary man.

5.  How far should the criterion for mitigation develop?  Simpson v. United States.

D stabbed his two children then himself, only he didn’t die.  His children suffered from cerebral palsy and were completely handicapped, the mother was a drug addict who whored herself out for money and spent all the money on drugs.

D argued that despair and frustration would negate malice and would provoke a reasonably person to suddenly lose control and kill without premeditation, without deliberation and without malice.

Old standard: provocation is only provocation coming from the deceased victim, and thus any provocation coming from a 3rd party cannot negate malice where victim is innocent.

New Standard: the test of the sufficiency of such provocation is that which would cause an ordinary man, a reasonable man, or an average man, to become so aroused as to kill another.

He might be able to introduce this evidence under the MPC, but not under CL.

Held: D’s harsh circumstances or personal tragedies do not constitute mitigation sufficient to reduce his crime from murder to manslaughter.

E. Reckless and negligent Killings:   Involuntary manslaughter and negligence homicide

CL :  Involuntary manslaughter (IM)


Lofthouse v. Commonwealth (In texas he probably could be guilty of criminally negligence homicide[they define as reckless homicide]; but not)

Crimes. Second degree manslaughter: requires awareness and conscious disregard of risk. Negligent homicide: failure to perceive the risk.

Two friends shooting up cocaine and heroin, drinking beer.

Victim dies of overdoes; D is drinking beer in the kitchen.

Issue:  is there sufficient evidence to find that he was guilty of IM under the Kentucky statute?

Issue is whether the risk that he failed to perceive was a substantial and unjustifiable.

R:  if it’s a risk that an ordinary person would appreciate then it is sufficient.  Ct concludes that an ordinary person would not perceive the risk.

State argues that everyone knows that if you ingest enough narc you can die.

Held: the mere possibility that something can happen does not constitute a gross deviation.



Is it a gross deviation if a surgeon operates on someone with a 100% chance of dying without the operation and a 75% dying with the operation? No.  Because it has a high utility.

- But playing Russia roulette has no utility, even though the probability dying is very low is low.


In recklessness the things at least crossed your mind, so you are aware of the risk but you disregard it.  But negligence is the absence of having thought about it.


1. If you want to convict for reckless homicide you want to introduce evidence that people have died from overdoes, you want to show that defendant knew.


Hypo: a leader of religious sect passes around a poisonous snake to tell who is a true believer.  Someone dies and leader claims he thought they were all true believers. But there’s no utility.


2. A risk is not solely a question of percentages to be reasonable or justifiable.


Hypo: Guy driving a car approaches a RR intersection.  He claims I didn’t see the train coming.  If you believe him you can only convict on criminal negligent homicide.  But if he did know a train was coming then the jury can infer that he was aware of the risk.  They can say the we think he saw it and so we think he was aware of the risk. Thus, reckless


F. Death caused in the perpetration of crimes:  Felony Murder and misdemeanor Manslaughter

CL: this was strict, if you committed one felony, and in the course of it killed another, then you were guilty of felony-murder.


(1) liability of an individual

(2) complicity/liability of co-felons (covered in the complicity chapter)

No mental culpability required. Prosecuter’s like this because they don’t have to prove mens rea.


If D is charged just with felony murder, there is no lesser included offense, it is or it isn’t.




Deterrence – if criminals know that they’ll be held guilty for anything that goes on during the course of the crime, they refrain from doing it.

If a killing is done during the prosecution of a crime, then it’s a more serious crime, and they should be punished.

Jurors like it because they don’t have to think about culpable mental state.


Constitutionality of felony murder liability

- Can you give the non-trigger person the death penalty, if the non-trigger person knew of the possibility of a killing.


Many jurisdictions have limited the application of the doctrine.



19.02 (b)(3) – A person commits an offense if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the act, he commits an act clearly (subjectively) dangerous to human life that causes the death of an individual.


Stouffer v. State

A dysfunction community of youngsters, and some of these decided to scare Fiddle and they ended up killing him.

Was the killing in the process of the felony of kidnapping?

If he was dead and then he was transported him  somewhere then it wouldn’t be kidnapping because you need a live person to constitution a kidnapping.  But there was evidence that we was still alive when they were transporting him to this distant location.


509.  We now turn to the more problematic question, ie.,  was the homicide in this case committed in the perpetration of a felony?


If someone enters the house with the purpose of killing someone, and then kills, it is not felony murder…



Because kidnapping is a continuing crime, remaining in effect until the hostage is safely released, the stabbing was necessarily ‘in furtherance of the felonious undertaking.’

CN: Prosecutor used kidnapping so he could avoid the merger rule.  In some jurisdictions the assault that causes the death is merged into murder and you can’t assault.

Holding:  the act causing the death need only be committed in the course of the predicate felony.

TPC: 19.01 a3-b3.  the killing must be committed somewhere in the commission of, in the time frame


1. the death must be foreseeable.  EX: D sets fire to an apartment.  Victim escapes.  A victim of arson running back into the burning house to save his dog (and thus perishing), is foreseeable.  The impulse to protect property, including you dog, the chain of causation has not be broken.


2. Possession as the felony.  Possession of a fire arm by a convicted felon.  D picks a gun of a bed and starts dancing around with it, it discharges. The accidental killing must occur while in the prosecution of some felonious act, or in furtherance of the felony.  …Felony murder liability applies where the initial felony and the accidental killing are parts of one continuous transaction and are closely related in point of time, place, and causal connection.

CN:  Is there foreseeability that a crime would occur if a convicted felon merely possess a firearm.

The killing has to occur in the course (sometimes in the furtherance) of the underlying felony.

2. Limits on Predicate Felonies, “Merger” and the “collateral Felony” Rule

The rationale: necessarily included in a homicide is assault, so prosecution would only have to prove the culpability of the assault to prove murder, simply because somebody died as a result of the assault.


Merger Rule: Where the only felony committed apart from the murder itself was the assault upon the victim which resulted in the death of the victim, the assault merged with the killing and could not be relied upon by the state as an ingredient of a felony murder.


Requirements that Felony be “Dangerous”:  Alabama: liability to causing crimes clearly dangerous to human life.


Hypo:  four robbers enter a bank.  One holds up a vial and says that it contains nitroglycerine, give me your money or I’ll drop it.  A teller has a heart attack and dies.  Under felony murder, would he be guilty of murder? – Yes.  And his co-felon?  Yes, under complicity statutes.


In Texas?  Was there an underlying felony other than manslaughter? – yes.


But is holding up an vial of clear water clearly dangerous to anybody? – No.


In California you determine whether it is dangerous in the abstract.  Which means look at the act objectively and in the abstract.


People v. Morgan –Felony murder must have an independent felonious purpose. Therefore, murder itself cannot be the felony for which one can be convicted of felony murder

Charge:  first degree murder of his grandmother and second degree murder of his grandfather.  Sentenced to consecutive terms of 75 years.

Boy was late to school.  Grandfather found him asleep in bed, and whipped him.  Boy says he was frightened, so he ran into the bathroom shoots the gun.  Boy shoots grandfather coming toward him and his grandmother while running away from him. When arrested he said he did it because he was pissed.

                The jury convicted Jon of first degree murder but the record contained nothing indicating which theory it relied upon.  Therefore, id the judges instructions to the jury on felony….

                Boy contends the rationale of the felony murder rule does not apply here -, to deter individuals from committing forcible felonies by holding them responsible for murder if death results.  We agree.


Jenkins.  D is fighting with one police officer and his gun goes off and kills a second officer.  Held, the predicate felony is not inherent in the killing of a police officer.

Rule:  A felony merges only if the felony is committed pursuant to the person killed.

Holding:  The boy could be charged with intentional or knowing murder, but the predicate felony underlying a charge of felony murder must involve conduct with a felonious purpose other than the killing itself.  Thus, felony murder must have an independent felonious purpose.


CN:  If they agree that there was no a basis to give a felony murder instruction, they have to reverse, but they can’t be sure what theory the jury convicted him of.  The argument here is that battery and the discharge of a firearm is inherent in killing.  So when charging a lower offense you are simple charging a lesser included offense.


Note. Illinois Supreme court reinstate the conviction.  He can be convicted of intention or knowing murder.  The jury was not influenced by the felony murder instruction.  Jury found so mitigating circumstances with regard to killing the father.  Second degree murder consists of first degree murder plus one of two mitigating factors.  One is serious provocation.  The other is an unreasonable belief that circumstances exist which, if they did exist would justify the killing.


TEXAS 19.02 (b)(3)—commits or attempts to commit a felony, other than manslaughter. 

CL: So you can use any other felony except manslaughter, because manslaughter is a lesser included offense.

The same act that causes the death is the assault.  Ct Crim App.  The statute makes criminal an act that either done knowingly, recklessly,…so long as you allege it was done recklessly or knowingly, manslaughter is the only thing that cannot be used for felony murder…but aggravated battery can be used.  So if you recklessly and knowingly cause bodily injury and that bodily injury causes death, you can be convicted of felony murder.

But this seems to be covered already by 19.02 (b)(2)

3. Special Felony murder problems:  Resisting Victims, pursuing police and unlucky co-felons.


Some times no specific act of anyone can be isolated as the direct cause of the victim’s death.

Hypo: felon 1 and felon 2.  Bystander shoots F1, or victim.  Robbery in progress at convenience store.  Customer shoots F1 and another patron, but F2 runs.  When arrested F2 is charged with felony murder.  He killed no one, but the felony murder occurred in the commission of a felony.


Agency theory? – no guilty.  Because the killing has to be directly attributable to the act of the felon.

Proximate cause theory? Yes, guilty,  Because the participation in the felony inspired the customer to start shooting.


In Pennsylvania they had a rule.  V shoots F, and V shoots another V.  Is this justifiable homicide or excusable homicide?  Shoot F is Justifiable homicide, because he has a defense.  If you shoot another V, it would be an excusable homicide.  In Penn, F2 would be guilty of killing V but not F.


So statutes often place restrictions.


State v. Sophophone

Accused was not the one who killed F2, victim one of the felons.

Defendant and a co-felon were fleeing the scene of a burglary as the police arrived.  Defendant was caught while his co-felony was shot and killed by a police officer.


The killing occurred in the requisite timeframe


Two approaches to application of the felony murder doctrine:

1) Agency (majority): applies to homicides committed by the felon or an agent of the felon.  Thus, the identity of the killer becomes the threshold requirement for finding liability under the felony-murder doctrine.


2) Proximate cause approach (TEXAS):  liability attaches for any death proximately resulting from the unlawful activity – even the death of a co-felon – notwithstanding the killing was by one resisting the crime.


Rationale:  [see highlights in book]

Held, use agency, therefore no guilty.


Hypo:  Billy bob decides to break his brother out of jail, and enlists a buddy.  One of the deputies accidentally kills another deputy.  Is Billy Bob guilty under Texas statute?

He committed an act clearly dangerous to human life that caused the death of another.  So it boils down to causation.  Thus the ‘but for’ question. So Billy Bob would be guilty.  But what if his co-felon said he was so scared he couldn’t pull the trigger.  You can argue participation.  The underlying felony is the jail break.  But was there am act clearly dangerous to human life…?

Thus is appears that Texas has the proximate cause approach, not the agency approach.


Dissent: the statute is not ambiguous.  In felony murder, your not transposing intent, but rather it’s strict liability.  Because no state of mind.





3. In most murder cases there is no necessity of the felony murder doctrine.  That’s why the MPC dispenses with felony murder doctrine.  So it creates a presumption that engaging in a felony is reckless disregard of human life.

4. Deaths related to misdemeanors ()

Misdemeanor Murder doctrine arose as a corollary to the FM doctrine.  Like FM, MM has been limited, in some jurisdictions, it is eliminated all together.  Some distinguish between malum prohibitum and malum in se.


State v. Yarborough

Woman going the wrong way on a hwy is side swiped and the car is left in the road, with the head lights facing traffic.  A car was stalled in the middle of the road.  A number of other cars pulled over to the side to assist.  Yarborough (D) did not see the accident until he was a hundred feet away and did not apply his brakes because he thought he would have more control his he didn’t.  Traveling over 50 mph he struck one of the stopped cars killing a child therein.  D was drunk.  Convicted of involuntary manslaughter by careless driving.


Involuntary manslaughter:  the killing of a human being without malice 1) in the commission of a lawful act not amounting to a felony, or 2) in the commission of a lawful act which might produce death in an unlawful manner or 3) without due caution and circumspection.

It looks like there’s three different ways.  3) the commission...without due caution and circumspection.  This is a fourth degree felony (a pretty serious offense).


The state’s position.  “without due caution and circumspection’ would modify only the “lawful act” provision of the statute.  If it’s an unlawful act you don’t worry about whether its done with due caution or circumspection.  Thus, all they would have to prove is that he was engaged in an unlawful act and that someone was killed.


The misdemeanor-manslaughter rule.  The unlawful course of conduct embodies the misdemeanor-manslaughter rule under which a criminal D is guilty of a felony for killing a human being while in the commission of a misdemeanor.


This contains no mentions of a culpable state of mind or culpable degree of conduct. ….We must be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable mental state of mind. We hold that the State must show at lease criminal negligence to convict a criminal D of involuntary manslaughter.


Careless driving.  Careless driving cannot be used as a predicate for an involuntary-manslaughter conviction because it requires only a showing of ordinary or civil negligence.


Hypo: Statute states that any person who with criminal negligence who drives a vehicle so as to cause damage by collision… commits… Is this negligence as to property damage, or negligence?  If criminal negligence is meant only to relate to damage, then it might make a different regarding MM.

- if the above statute were amended to make it criminal negligence… there’s still no state of mind.  If the carelessness only relates to property damages, then it’s just the traditional misdemeanor manslaughter doctrine


notes.  Problems of cruel and unusual punishment rejected by Ohio court.

If there’s a long jail term, large fine, or harsh punishment, then strict liability is not supposed to be allowed under the constitution.  But you can find ways of arguing that it’s not struict liability.  Or you could argue that if a fourth degree felony is

General Principles of Criminal Liability: Results and the Requirement of Causation.


Cause in Fact

Proximate causation

Intervening causation


Traditional (CL)

1) ‘but for’ (cause in fact)

a) transferred intent (often unnecessary because murder doesn’t require intent to kill a particular person)

                b) concurrence

2) Proximate Cause

                a) direct cause

                b) intervening cause

1) de minimis

2) foreseeability (supervening cause?)

                - Responsive (dependant).  Recklessly operates motorboat, V unable to swim to safety because he was drunk.

                - coincidental (incidental). D puts v in hospital, maniac burns down hospital.


Model Penal Code

1) but for (cause in fact)

2) Greater or lesser harm? – too remote or accidental.



State v. Witherspoon

- D taunted his opponents as he brandished his gun and shot into the air; a murderous exchange of gunfire took place, an innocent bystander was killed.

D did not fire the fatal bullet, but is charged with the killing.

D argues insufficient evidence as to intent and causation.

Issue: Whether a person who recklessly provokes and participates in a gun battle during which another participant kills and innocent bystander can be guilty of recklessly causing the bystander’s death?


See jury instructions.  Use MPC for recklessness, then causation.  Then CL foreseeability.


-There is sufficient evidence to find not only D could foresee, but also that he intended or at least he expected as he fired his weapon that shots would be fired by others in the crowded area where he stood and someone might get killed.


-The state had to prove defendant’s 1) recklessness, that 2) the risk of death was foreseeable, that 3) D’s act was the proximate cause of the death under the highest ‘but for’ standard, and 4) finally, if D’s mental state and his act met all those tests, the jury had to consider whether the shooter’s conduct was an intervening, superceding cause of death. 

- Decision:  D is responsible for victim’s death.


CL: distinguishes Boston case.  In a chase after a bank robbery a co-felon was killed by a cop.


Though the MPC did away with ‘proximate cause’ it essentially puts the jury in the same position as they would under the proximate cause analysis.  If the actual result is too remote or too accidental, can the jury decide that D is not the cause?  [here the actual result he is risking is the death of a bystander] Is the fact that a non-participant be killed in the gun battle.


Hypo: if H threatens to kill his wife, so W flees to the country farm, and while riding a horse gets bucked off and dies,  - is he guilty?  Probably not.  Too remote.


Ultimately it would appear they are asking the jury to do what is just.


Bullock v. State

Manslaughter for recklessly causing death while driving at excessive speed while impaired by alcohol.

D ran through a yellow light going 77 mph.  Another car traveling 11mph entered the intersection through a red light.  D was impaired by alcohol.

D claims V caused the accident by running a red light.

Manslaughter: A person if guilty of manslaughter when he recklessly causes the death of another person


Issue:  Did the court properly instruct the jury on reckless causation?


A person is guilty of manslaughter when he recklessly causes the death of another person.  …D must be found to have caused the death of victim, ie, D must have brought about this death which would not have occurred but for such act.

And that D acted recklessly.


D says she was the sole proximate cause.  ‘Sole cause’ means the cause to which blame will be attached.

They eliminated proximate cause in Delaware.


Circumstances under which reckless or negligent causation may not be established: if the actual result if outside the risk of which the D is aware and the actual result is too remote to have a bearing or D’s liability. [‘actual result’ is meant to be contrasted with the probable result in terms of its specific character and manner of occurrence. The MPC wants culpability to do the work.  Criminal liability is decided based on state of mind.]


Had the jury received an instruction based on section 263, they may have concluded that despite Bullocks actions, that he could not be found to have recklessly caused V’s death because the result of her actions could not be expected and were outside the risk of which he was aware.


Reckless causation was not established and to conclude that he should not be held criminally liable because he was inaware of the risk that V would disregard a red arrow and collide with his truck while he was property in the intersection.


Hypo: D slaps a hemophiliac and he bleeds to death.  Is D the cause?  Yes, but would the MPC find him guilty, no, too remote.  He had no state of mind regarding the result.


What is he risking here?  Getting into an accident.  Thus, being aware of hitting someone who was lawfully in the intersection.  The actual result was that someone was unlawfully in the intersection.


On remand:  with the added instruction, will they find that the actual result was too remote or too accidental to find that he was the cause?  - Probably not.  There aren’t many causal links between what he did or what she did.


What does it matter that she was breaking the law?  It doesn’t.  There isn’t contributory negligence in criminal law.  But the MPC does take ‘greater or lesser harm (too accidental or remote)’ into account.  So is it substituting ‘too accidental’ for ‘foreseeable’?


Here he is charged with recklessness and intoxication.  Because he was speeding through an intersection, he was risking not being able to stop if someone stepped in front of him.

Just because someone caused something doesn’t mean they are guilty of a crime.


Proximate cause is a limit to liability as to what would otherwise be causes in fact.


Hypo: D inflicts a non-fatal wound in V.  V is in hospital recovering.  A maniac sets fire to hospital and is killed.

Is D a cause in fact of V being killed? – yes. 

But, under CL, would he be the proximate cause?

Alternatively, what if he inflicted a wound from which the V was going to die; the burning hospital only hastens the death.

Is D a but for cause? – yes.  Did he have the intent?  Yes.

Will D be guilty of homicide or be a beneficiary of the Maniac’s act?


Beneficiary cause:  you can’t be held liable for


MPC: 2.03 (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements of the Code.

(2) When purposefully or knowingly causing a particular result is an element of an offense, the elements is not established if the actual result is not within the purpose or the contemplation of that actor unless: (a) the actual result differs from that contemplated only in the respect that a different person or property is injured or that the injury or harm contemplated would have been more serious than that caused; or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or too accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense.

(3)  When recklessly or negligently causing a particular result is an element of an offense, the elements is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should have been aware unless: (a) the actual result differs from the probable result only in the respect that a different person of different property is injured or that the probable injury would have been more serious than that caused; or (b) the actual result involves the same kind of injury as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense. (4) when the actual result is a material element for an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor’s conduct.


TPC: 6.04: Causation

(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

[ But for (cause in fact), “concurrent cause” (sufficient).]

(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated or risked is that: (1) a difference offense was commited; or (2) a difference person or property was injured,…[transferred intent].


If D stabs V and someone else shoots V in the heart.  The stab-wound would not have killed him.

 ‘Concurrent cause’ sometimes means ‘happening at the same time.’


CN: How would to decide Bullock under TPC?  B drives into intersection and collides with V.  Is B a cause under the Texas statute?  Are these concurrent causes? They appear to be.  The prosecution will have to prove beyond a reasonable doubt that the concurrent cause was not clearly sufficient, and the other cause was sufficiently clear.  She wouldn’t be able to commit suicide if he hadn’t been reckless.


It’s easy to find D’s conduct is the cause.  But is there culpability? 


But if this only applies to concurrent causes, what do you do of sequential causes? There’s no limiting provision in the Texas statute.  Using concurrent clauses might create causation.


Attendant circumstances and Sexual Assault

CL rape- carnal knowledge of a woman against her will.

The force was added later.

The crime of rape is extremely controversial.  Because the burden appears to be placed on the victim to establish lack of consent.  As a practical matter, rape is an assault; this changes the focus from the victim to the offender.

P 573

P 577 – rape shield laws

TX the past reputation or sexual conduct of victim is not permissible as evidence.  However, evidence of specific incidents might be admissible, one of which is if the probative value outweighs the risk of unfair treatment of victim.

P 578- experts may be used to establish whether there was consent.  ….Child victims are sometimes allowed to testify using video-cam, but this violates the defendants constitutional right to confront accuser.  The S.ct. says the judge can do so if they balance the trauma v. confrontation.


Marital exemption—most states have eliminated this.  There is no marital exemption in Texas Penal code

TPC-22.011—‘person’ not female, or ‘not wife’.


A. Lack of Consent And Awareness of nonconsent under traditional Rape Law

Commonwealth v. Lopez

D claims jury should have been allowed to decide whether he made a mistake regarding consent.  The trial judge refused.

She claims she resisted all along.  He says she consented all along.  So the judge said this is not a consent case, but a question of credibility.

The medical evidence corroborated her testimony. 

585.  making a mistake implies that there wasn’t consent….

Mistake of fact is admissible only if it negates a culpable state of mind.

Rape is 1) sexual intercourse 2) by force or threat of force, 3) against the will of victim (without consent).

Thus lack of consent is a fact, it does not requiring a state of mind.  Ct says this is not a strict liability crime, but a general intent crime.  The intent is the sexual intercourse.  The intent with respect to the 3rd element is irrelevant.  You don’t have to intend to do it against the person’s will.

p. 587.

If v testifies that her lack of consent is unequivocal.  If it’s equivocal, a reasonable person would not rely on it.

Here the court does not recognize the defense and even if they did/



1. Should a defendant be able to raise the defense even if he says he was not mistaken?

Could you find D honestly thought that V had consented and still be mistaken as to the actuality of consent?

--Mosk says courts don’t give the mistake instruction because we don’t instruct jurors.

2. DC code shifts burden of …to


TPCA person commits an offense if the person: (1) intentionally or knowingly: (A) causes the penetration of the anus or female sexual organ of another person by and means, without that person’s consent;


What is the significance of the comma.  Does intent and knowingly apply to ‘without that persons consent’? - probably not.


Statutory Rape

Rape a child – since legislature provided an affirmative defense, it intended to exclude any other defense.  Does D have a mistake of fact defense as to the consent issue?

TPC 21.11, p. 16 (a) A person commited an offense if, with a child younger than 17 years and not the person’t spouse, whether the child is the same or opposite sex, the person: (1) engages in sexual contact with the child or causes the child to engage in sexual contact;


p. 590

Thompson- principal and basketball coach threaten v wouldn’t graduate unless she consented to having sexual intercourse with him.  In Montana, is that enough for there to be an offense of sexual intercourse without consent? – no.

Psychological impairments in not a defense.


TPC- 22.011 (b) A sexual assault is without consent of the other person if: (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor.

He was a Public servant

But did he use coercion? p. 2.

So we could convict under Tx statute.


D threatened to call v a fag or gay to have sex with him.


TPC-22.011 (a)(2) sex with a child.


Deception—Hugh—V has sexual intercourse with D thinking she was having sex with his twin brother.  She did consent to sex, but not to have sex with him.  Case dismissed because the statute doesn’t cover that situation.  Prosecutor charged him with the wrong crime, should have charged him with assault.


Apply TPC—was there fraud?  She knew she was having sex, the mistake was who it was with.  So it looks like you couldn’t convict under Texas Penal Code.


V bought into doctor’s prescription that she have sexual intercourse with him to cure her ‘fatal disease’.  This is different from Minkowsky, because in Minkowsky, Vs consented to the insertion of instruments.  Here V consented to intercourse.


Does the statute change anything?  Doesn’t look like it.

Apply TPC

TPC – (b)(9)- health services provider…but what about the emotional dependency?  So this may not fit.


Mistaken Belief Regarding Age

Traditionally, statutory rape is a strict liability offense.  To prevent young women from being exploited.  Today, it’s to prevent teenage pregnancies.

People v. Fernandez.  D claims mistake of age.  He thought she was at least 18.  Cal court says there has to be a union of act an intent.  D must be at least reckless re the fact that she was at least 18.  He can establish a mistake, but it must be a reasonable mistake.

If he honestly believes that she is of age, is he aware of the risk? – no.  But if the mistake is reasonable, then his negligent mistake will preclude his defense.  You’re making him liable for his negligence.

                If you’re defending in Cal, defend on reasonable mistake, what evidence would you present?  Her clothing, her appearance, etc.


In texas: Mistake of fact is not a defense with respect to the age of the child.  Vasquez.


The Inchoate Crimes

Reason for attempt laws is to allow law enforcement to intervene before the crime is committed, also if someone has indicated a intent to commit an act, they are just as dangerous as some who had completed it.


TEXAS Penal Code section 15.15: Attempt or conspiracy to commit, or solicitation of, a preparatory offense in this chapter is not an offense.  So you can’t be guilty in TEXAS of soliciting an attempt or attempting an solicitation, etc.


Requirements for Liability (strict liability)

CL: 1) intend the act, intend the result, intend the circumstances..

2) an act toward commission of that offense.


Where on the line between intent and the act of the crime, does it become a crime?


Intent—(solicitation)----(conspiracy)----(attempt)-------object crime






Actus Reus

Substantial step “strong corroboration of actor’s intent.”


-“act beyond mere preparation.”


More than mere preparation


failure to effect the offense.

Mens Rea

Intend target crime/punishes strict liability crimes

Intend all elements of target crime/not punish strict liability



emphasizes how much he has done.

emphasis on how much he has left to do



Yes, but not when conduct is the only material element.




No, factual &legal

No factual; yes, legal



Problem case:

June 14th :  (1) A and J pick up H at his house.  They leave for the bank. [Is there attempt yet?  Probably not.] 

(2) Then they arrived at the bank, 8am.  [attempt yet?] 

(3) they go get breakfast, return to bank, and peer into window.  [attempt yet? – remember, they had shotguns and ski masks in the car.  MPC p. 640, examples of corroborating evidence of actor’s purpose, (e) “possession of materials to be employed in the commission... for unlawful use or for no lawful purpose” and (f) “possession, collection or fabrication of materials to be or near the place”].  4) they get Scott and another shotgun.  When they return, is there a second attempt?  Then they decide to continue at another time.


June 21:  They arrive at bank, stop at bank, drive past bank, then they park, put hood up on car.  Is this an attempt?  You could argue they were reconnoitering, or casing the place.  Under common law there would be no attempt because they’re not close enough yet.  Under the MPC you can go back further.  They had guns and masks in the car. 

Abandonment? CL – No.  MPC – yes,

Then they remove the license place, they drive a little more, then they stop in front of the bank.  Attempt?  CL-Yes; MPC – yes.


State v. Reeves

Facts:  Two twelve year old girls talked about killing their teacher, then stealing her car and driving away.  They asked a High school student to drive the car and he refused.  One brought rat poison to school.  She had told someone, who told the principal, who told the teacher.  When Teacher entered she saw the two girls standing near her desk.  There was a purse near her coffee cup containing rat poison.  The packet wasn’t opened.

One of the girl testified that they had talked about it but that they were just joking around, and never really intended to kill the teacher.

Chemist testimony, said rat poison would not kill you, only cause bleeding.  The issue is not whether it would kill but whether they thought it would kill.

Is it relevant that there plan was totally unrealistic?

Jury found them guilty of attempted second degree murder.

Issue:  Were D’s actions a substantial step toward the commission of second degree murder?


Attempt requires:  an intent to commit a specific crime; 2)  an overt act toward the commission of that crime and 3) a failure to consummate the crime.


TPC:  15.01, p. 11:  “more than mere preparation and failure.”

Generally failure is not an element, but in Texas it is.

OLD rule, D laws out instruments and asks woman to remove her clothes, but no attempt to commit abortion because he hadn’t touched her.

New law this would probably be sufficient under the MPC.  Does the conduct strongly corroborate actor’s purpose?


We have a new attempt law, based on the MPC, but not the examples.  But the conduct was sufficient to constitute an attempt.

The object of the attempt statute is prevention, were it not for the preventative act of the teacher,



1. The mental state requirement for attempt generally limits those offenses for which an attempt prosecution will lie.  Dunbar held, if the crime requires less than purpose, it cannot be the basis of an attempt prosecution.  In a drive by shooting in which no one was killed, could he be prosecuted for attempted first degree murder? No in Washington, you can’t be guilty of attempt of recklessness.


Hypo:  what if you purposefully drive blindfolded?  Most courts say you can’t attempt reckless endangerment.


Hypo: can you be guilty of attempting a ‘heat of passion’ killing?  Voluntary or involuntary manslaughter?  No, probably not, because these by definition cannot be attempted.


Hypo: If someone is throwing bricks off a building, he could be convicted of extreme indifference, but not attempt to commit murder, even if he happens to kill someone he may be found guilty of murder.


TPC: 15.01 a require intent, thus the purpose to commit the crime.


2. Can on be convicted of an attempt to commit a strict liability offense without proof of intent to commit the offense?  No, you cannot be held liable for any act preparatory to the commission of that offense in the absence of mens rea.


Hypo:  What is someone fires at a bald eagle but misses, is he guilty of attempt (killing a bald eagle is strict liability crime). 


3. Should liability for attempt be ameliorated by a defense of withdrawal or abandonment?

TPC 15.04 p. 12. a, affirmative defense ... voluntary and complete avoided offense b, ‘prevented offense...and took further affirmative action to prevent c. no defense if motivated by probability of detection, decision to postpone offense.:

CL: withdrawal or renunciation is not a defense.

MPC: affirmative defense of abandonment under circumstances manifesting a complete and voluntary renunciation of criminal purpose.


Hypo: someone douses his warehouse with gas.  Then, when about to do it, he thinks of his family and abandons it.  But if he abandoned it because he saw a police car, he would not get off


Federal Courts: not affirmative defense. “Attempt crime is complete with proof of intent together with acts constituting a substantial step toward commission of a substantive offense.  When a defendant withdraws prior to forming the necessary intent or taking a substantial step toward the commission of the offense, the essential elements of the crime cannot be proved.


4. If a defense of abandonment or withdrawal exists, what evidence is necessary to raise it? to prevail on it? 

--D abandoned because one of his victims got away and D was afraid of detection. Not a defense.

The ‘Defense’ of impossibility

CL: legal impossibility is a defense to a charge of attempt, but factual impossibility is not.

Should D be found not guilty of attempt on the basis of facts showing that in some sense it was impossible for their attempt to be successful.

EXAMPLEs: 1)  D is prosecuted for attempted larceny after he tried to pick an empty pocket. 2) attempted rape after he tried to have nonconsensual intercourse, but he is impotent; 3) attempting to receive stolen goods when goods are not stolen; 4) attempting to hunt out of season, after shooting a decoy deer, lawyers argued this was legal impossibility, but this was more a factually impossibility.  They’ve done everything they could to take this deer, but shooting a stuffed animal is not a crime.


Similar Texas case:  Chen v. State 42 SW 3d 926


1.        Legal: Maybe.  If there is a statute proscribing what D intended to accomplish, even if what he did was not illegal, D can be guilty. 

2.        Inherent: Maybe.  Only if so inherently unlikely to culminate in the commission of a crime that neither such conduct nor the actor presents a public danger.

3.        Factual: No. “A person is guilty of attempt if the person would have committed the target offense if circumstances were as he believes them to be.”

EX: People v. Thousand

D asked undercover agent to meet him for sex, thinking the agent is only 14.  D claims that because the existence of a child victim was an element of the charged offense, the evidence was legally insufficient to support the charge.  Held, no defense of impossibility, factual or legal.


Pure legal impossibility: attempting to spit on the side walk when there is no crime against spitting on the sidewalk.


Hypo: what if you intend to kill someone, but you have poor eyesight and so shoot a tree stump.  There’s no law against shooting a tree stump.  But the person intended to kill someone. – Inherent impossibility no defense.


TPC: it tends toward the commission of an offense.  It’s not a legal impossibility if it is a crime on the statutes.


3. Inherently unlikely

Hypo:  Law student dabbling in black magic, sticking pins in a doll, thinking they will injure prof.  Are they guilty of attempt? – CL, yes. MPC, maybe not.


MPC: p 641: 

B. Solicitation

If A says to B “I want you to kill X for me.”  This is solicitation.  IF B agrees, and then one does an overt act, like buying a gun, then this is conspiracy.  Then if B fires at X, this is attempt.


Solicitation to commit a felony has been recognized as a CL offense, but in some states, such as Texas, it is limited to capital felonies and felonies in the first degree, under circumstances as he believes them to be would be a felony.


State v. Anderson

In a sting operation, Anderson was enveigled to accept cocaine in payment of his legal bill.


That statute: anyone who commands, entreats, or otherwise attempts to persuade another to commit a particular felony,…solicits the other to commit a felony.


Because he was approached by an undercover agent, he contends that he was not the solicitor.  Held, insufficient evidence that he was a solicitor.


Grading Solicitation:

MPC: same grade as the object offense, except when it is inherently that solicitor is not a danger.


Texas: one grade lower then the object offense.


2.  Impossibility is not a defense.

3. CL:  renunciation not a defense. 

MPC & TPC, renunciation is a defense.

15.03:  D voluntarily renounces his criminal objective…

Evidence of an incomplete renunciation may be

C. Conspiracy--agreement

·         CL: agreement to commit an unlawful act, or act with unlawful means.

·         Some state require an overt act or substantial act in furtherance of the conspiracy.  Merger if act completed.

·         Some states find the conspiracy unconstitutionally vague.

·         MPC: agreement must be to commit a crime.  Merger if act completed.

·         TPC:  15.02 – D agrees with one or more that a felony be committed, overt act. No merger, Allows conviction of both conspiracy and object offense.

·         All coconspirators can be tried together, use of hearsay evidence





Both offense


Yes, and most states


Type of offense









Hypo: What if two people agree to steal a car that they believe is worth 1500, which would be a felony.  But it turns out that it’s only worth 1400.  Under TPC?  Probably not.


Conspiracy permits the prosecution and conviction of successful conspirators for both conspiracy and the completed target crime.  Because the crime of conspiracy is complete the moment the agreement is made. 

You can be convicted of both conspiracy and the object crime of extortion.


Pinkerton Rule-vicarious liability:  Each conspirator is responsible for (1) any reasonably foreseeable crime committed by a co-conspirator, (2) in the furtherance of the conspiracy.


Venue.  Jackson’s Concern: Prosecution can choose which district it wants to prosecute, because it can be tried in any district where any act in furtherance of the conspiracy took place.


Evidentiary.  an out of court conspirator’s comment can be used in court against another conspirator.  This would otherwise be mere hearsay and inadmissible.  So you would want a separate trial because there is guilt by association.


There are huge procedural advantages to the prosecution, and you can try them all in one trial.


Conspiracy also makes one person liable for the crimes of other individuals.  Under certain circumstances, all conspirators are liable for crimes committed by one member of the conspiracy.


There are fears that the crime is too vague and criminalizes people who have not actually committed a crime.


Reasons:  Conspiracy provides a predicate for state intervention without having to await the commission of the object harm.  It also prevents people from getting off the hook just because their criminal scheme failed.

1. Conceptual nature of the Offense

UNILATERAL& MPC  theory, someone may be punished as a conspirator who believes he has agreed with another to commit a crime, even though the other person had no purpose to commit that crime.  The MPC emphasizes the actor’s subjective intent.

BILATERAL & TEXAS theory (majority), requires more than one person.  No one can be found guilty of conspiracy unless more than one person has the necessary mental state. 

Comparisons: traditional approach uses “conspires”, while the MPC uses “agrees,” because it thinks that you can agree with yourself.

EX: Military woman agreed to sell marijuana to an undercover agent.  Objectively it looked like they both entered into an agreement.  Subjectively only one agreed.  Held, a person cannot be convicted of conspiracy when the sole coconspirator is an undercover agent, where the agent agreed with the D but did so for law enforcement purposes. Here, the undercover agent lacked the mens rea.  If one person is only feigning a criminal purpose and does not intend to achieve the purported purpose, there is no conspiracy. United states v. Valigula

(But they find she can be liable for attempted conspiracy.  Under TPC there is no attempted conspiracy.)


Texas Case 646 S.W.2d 221

Each individual’s culpability should be determined without regard to the other’s culpability.

TEXAS Follows the Bilateral theory, despite the language of 15.02


1. The Rule of Consistency: Provides the acquittal of all persons with whom a conspiracy D is alleged to have conspired requires the acquittal of the D, at least when all are prosecuted in the same trial.

EX: a person charged with a three person conspiracy would have to be acquitted if one of the coconspirators was an undercover cop and the other was insane [doesn’t have the ability to make an agreement].


TEXAS:  It is not a defense that one or more other the coconspirators is not criminally responsible for the object offense.  “It is no defense that the object offense was not actually commited.”


(c) If A, B, C and D are charged.  A is acquitted, then B is acquitted, can you still charge the others? Yes, but if C is then acquitted, you can’t convict D.  The must be at least two.


2. Gebardi.  The Mann prohibited the transportation of women across state lines for immoral purposes.  Can there be a conspiracy between the transporter and the transportee?  No.


3. Wharton’s Rule.  An agreement between two persons to commit an offense does not constitute conspiracy when the target offense is so defined that it can be committed only by the participation of two persons.

Ex: bigamy, dueling, adultery.

Third party Exception:  If a third party joins a crime that only takes two, then there is a conspiracy.


4.  No factual impossibility defense.  Factual impossibility is unlikely to be accepted as a defense for conspiracy.  It’s what they intend to commit, not what they can commit.

Legal impossibility may be a defense

Most court do not allow legal or factually impossibility as a defense for conspiracy.


5.  Withdrawal traditionally not a defense.  Because a D is still liable for conspiracies made before the withdrawal, it can only be a complete defense when the statute of limitations bars prosecution.  So he must note the time of withdrawal.

                Some jurisdictions require an over act of withdrawal.

MPC- provides a defense of withdrawal.

TPC- you have to take affirmative action to prevent the commission of the object offense.

2. Requirements for Liability

You can infer intent.

CL Elements:

1) agreement between or among the participants;

2) intend to agree

3) intent or state of mind to effectuate the object of the conspiracy, conduct and result.

4) possibly overt acts (Texas, not CL).  This provide evidence of the agreement.  I.e., A telephone call to find out when a bank is open.  An over act established some firmness on the part of conspirators to commit their crime. 


State v Sugg.  Charge of conspiracy to commit assault with a deadly weapon. A hired D to break X’s face or breaking her arms and legs.  He did it with a gun.  Is this conspiracy to commit assault with a deadly weapon? – No.  There must be evidence of how D was to commit the assault.


Attempt and Conspiracy distinguished.  Conspiracy allows law enforcement to intervene at an earlier stage then attempt.

Attempt requires an act beyond mere preparation.

Conspiracy requires only an agreement to undertake a criminal scheme, or they took an overt step in pursuance of the conspiracy.  Even an insignificant act may suffice.


An act in furtherance of

-mere conversations? – sometimes


Mere awareness of criminal activity is not sufficient—

Intent is a requisite mental state for conspiracy, not mere knowledge or acquiescence.  Mere awareness that someone is growing marijuana on the premises is not evidence of intent.  There must be actually commitment to the plan.

EX:  DEA find lots of marihuana on Camaron’s land, grown by tenant Howell.  The DEA have to connect all this with Cameran.  They used the water hose which was the only source, enclosure was 18 feet high.  So he must have known what was going on.

Charge of Conspiracy to possess marijuana with intent to distribute.

Rule:  Mere acquiescence or knowledge is insufficient.

If he had charged Howell more money per month then $200 a month, then maybe.  Here there is no evidence that that he participated in the possession or distribution of marihuana. Commonwealth v. Camerano


In Falcone.  D is charged with conspiracy for selling sugar to bootleggers.  The mere provision of sugar does not create a conspiracy, you must have a stake in the outcome.


1. You don’t have to agree to all of the events.  If you have a ring of smugglers and a middleman distributing it to the street, do the smuggler have to participate in bringing it to the street?  No, they are just cogs in the wheel.


One agreement to do multiple crimes: you have people who steal cars, bring them to someone else, and sell the parts.  What is the advantage of charging this as a single conspiracy? – you can lump them all together and make them all responsible for the acts of others. 


Spokes around a common center but no common rim: A, B and C fencing their stolen goods through a Fence.  Can you charge them all with the same conspiracy?  No, A, does not care about the success of C, or B.  The success of his venture does not depend on B and C.  He knows they are also dealing with the Fence.


A conditional agreement is sufficient.  Even if the decision to rob is depend on something else happening.


Suppliers.  Are you liable for selling a red dress to commit prostitute? – no.  But what if you sell a gun to someone who says they are going to kill someone.  Some courts call this a conspiracy.  EX: Falcone, the seller of sugar did not become part of a conspiracy to manufacture and distribute liquor.

Unusual business practices as evidenceDirect sale, the corporation sold 50 times more morphine than usual to a physician.  Then they benefited and they were a long term supplier.


Stake in the Venture -- US v Blankenship

Grandma bought the meth, then decided to cook here own, she moved a lot to conceal detection.  Lawrence knew they were going to cook meth; he covered the trailor floor, charged $1000 for one day; then he backed out.  Held, There was no evidence that defendant recognized, let alone that he joined and promoted, the full scope of the organization's activities.  It was possible he joined, or abetted, a more limited agreement to manufacture a quantity of methamphetamine, but he was not charged with that offense. he did not join or promote all the organization's activities.

He could probably have be convicted of conspiracy to cook meth in his trailer.  But he was charged with conspiracy with the overarching crime ring.  You must have some intent to promote the venture.


MPC:  mere knowledge is not enough, you must have a purpose to facilitate the crime.  But knowledge may justify an inference, but you still need an inference.

However, there are crimes for knowing.  TPC:16.01 You could be guilty for a crime for providing a weapon to someone you know they will go kill someone. A criminal instrument is anything designed for the commission of an offense.


MPC:  supplying goods to a conspiracy, you have to have the purpose to facilitating the criminal objective.  Merely selling large amounts of sugar doesn’t make you liable for selling bootleg liquor. But a pharmaceutical company that sells 50 times the normal amount to a physician, the can find conspiracy. Factors going beyond the normal sale:


Gypsum. Govt only needs to prove..only knowledge of


MPC:  it’s as same as the object offense, unless capital offense, then one lower.

TPC&CL: one grade lower.

Solicitation merges into conspiracy or the object crimes.  It is not prosecuted separately.

General rule: you can prosecute both for conspiracy and the targeted offense.

MPC not here; but you can convict both of crimes and those not yet committed.


Criminal liability for the Actions of others

TPC 7.22, p. 5: corporation president can be personally liable, and corporation may be liable as well if he is acting within the scope of his employment. 

EX: A business employee abandoned a vehicle by a hwy.  A woman ran into it and was killed.  The company was held liable under, 7.22.


TX 7.24 – environmental crime.  If an employee dumps oil into the water, the company would try to show that there were strict guidelines on how to dispose of it.


Accessory after the fact.

This is a separate liability. 


MPC p. 690: Hindering the capture of another for a crime.

TPC: 38.05:  Hindering apprehension or prosecution; you commit on offense if you harbor or conceal the criminal, you provide aid, or you warn the individual of impending apprehension.


Escape Phase

A. Liability as an Aider and Abetteor

CL: Principle had to be prosecuted first

EX: A- aides the crime-accesory before

       B,C- robbers, thus principle

       D- drives getaway car


TPC: 7.01- c – distinctions between accomplices and principals abolished, and you don’t have to charge the principal first.


When Participation does not create liability

EX: a federal statute makes anyone in the business of betting and wagering knowingly uses a wire communication to making bets.  But you can have adding abetting


No Victim Liability.  A victim of a crime may not be indicted as an aider or abettor even if this conduct significantly assisted in the commission of the crime.


Protected class.  Accomplice liability will not be imposed upon the protected group absent an affirmative legislative policy to include them as aiders and abetters.

3. Withdrawal


Hypo: Crime to stage a cock fight.  An you bet on these. Are you liable for just watching? – no.  But what if you start cheering for them, might be because you’re encouraging them.


TPC: 7.03. Defenses Excluded:  no defense (1) that the actor belongs to a class of persons that by definition of the offense if legally incapable of committing the offense (2) that the other party has been acquitted, or not prosecuted, convicted of a different offense, or is immune.




1. Relationship Between aider and abettor and actual perpetrator

 D helps boyfriend abduct his son.  She claims she is not guilty of a crime that the person she was aiding and abetting someone who can’t be guilty, because the natural father has an excuse or justification.  Statute says that you can’t be guilty of abduction if you have an excuse or justification. 

Excuse is ‘personal’ like mental retardation,

Justification is ‘situational’ like being the father. 

Nonetheless the court decides that father had an excuse, which is personal so the aider and abetter can’t claim it.  So even if the father would not have been guilty of abducting his own son, he still committed an offense, but he was excused.  She cannot claim his excuse as a defense.  Taylor v. Commonwealth.


TPC: 7.03(2) It is possible under 702 for be responsible for….an attempt to aid the other to commit an offense. Can you be liable? – no, there must be an offense.


Greater penalty for accomplice then perpetrator.  he accomplice can be liable for a greater offense then the principle, because the principle might be able to claim self defense. EX: Actor honestly but unreasonably believed deadly force was necessary to protect himself.  D did not believe shooting was necessary to protect himself.


Accomplice can be convicted in a separate trial of aiding and abetting the criminal act although the principal has been acquitted.



MPC requires that the person ‘wholly deprive his complicity of effectiveness in the commission of the offense or make proper effort to prevent the commission for the offense.


Liability despite having no impact only attempt to aid and abett: the aid doesn’t have to have an impact, you just have to attempt.


TPC:  7.02a1- a person is responsible – “innocent agent’ –if you tell someone to go get a bike that belongs to me, and he does it, you are an Aider and Abetter.

Immunity does not mean that a crime has not been committed.  All the elements may have been committed.


MPC: has a withdrawal defense

TPC: no withdrawal defense .  You can argue that once you’ve been an aider and abetter, taking it back won’t be a defense.


2. Establishing liability

Learned Hand:  you must have a stake in the outcome to be an Aider and Abetter.


United States v. Irwin

Whether one can be liable for aiding and abetting conspiracy for aid rendered after conspiratorial agreement was complete.  And whether the evidence was sufficient to support the conviction.


The Headman is running the drug ring from jail.  And the second in command, Shell, travels to and from the jail.  Irwin owns a restaurant, which appears to be a cover.  Irwin rented the car for Shell to travel to and from the prison, which suggests she is trying to provide cover for him.


Ordinarily, aiding and abetting is not a separate crime. But under the federal statute is it.


Peoni –A makes counterfeit money, sold it to B, then be sells it to C.  This is a one time deal.  Hand says we cannot link A and C, because A didn’t care about what C did with it.

Defendant could be convicted of aiding and abetting drug conspiracy based on conduct furthering success of conspiracy after conspiratorial agreement was made.
Irwin can be convicted of conspiracy because conspiracy is a continuing offense.

"Accessories after the fact" are ones who give aid after the criminal endeavor has ended to keep the one aided from being caught or punished.  

Circumstantial evidence establishing intent to further conspiracy can include evidence that defendant had a motive to further the crime, such as having a pecuniary stake in the success of the crime, or that defendant had personal motive, such as his relationship to one of the principals.

 The law imputes to a defendant the intent to do that which is the natural consequence of his knowing acts.

Defendant's motive to render aid is irrelevant in aiding and abetting prosecution.  


Using the credit car is not enough, nor using the rental car; but the restaurant, because it played a significant role.


Bottom line:  Assistance has to reach a level for us to say that there was an intent to aid the criminal enterprise.


Some courts have held that the AA must have a discernable impact.  But not in TEXAS which only requires attempted aid.


Mere words can be enough.


2. Can a person ever be liable as an adier and abettor if that person’s action clearly had absolutely no impact on the primary actor?

MPC: provides that it is sufficient if the D aids or attempts to aid the other person.

If a person unsuccessfully ‘attempts to aid’ the other person and the other person nevertheless successfully completes the crime, why should the unsuccessful efforts of the first individual render them as laible as if the had been successful? – generally, you will be guilty even if you we unsuccessful in your attempted aid, but not a crime as serious as if you had succeeded.

3. Omission. May a person’s participation in a crime as an aider and abettor take the form of failure to act?

EX: a mother whose live-in boyfriend is beating up on the child.

TPC: a person is liable if having a legal duty to prevent it he fails to prevent it.

4. Is mere knowledge enough?  MPC – No.


Natural and probable Consequence.

Some courts have made D liable on accomplice theory, for offenses that were a natural and probably consequence of the offense aided.  These are aberrational, because you usually have to intend to aid the crime.

Hypo:  If you supply brass knuckles to beat someone up


TPC- 7.02(b) coconspirators are liable for the crimes of others if they should have anticipated it.

B. Liability Under the Co-conspirator Rule

Pinkerton rule: one person is vicariously liable for an offense committed by another because the two were both members of the same criminal conspiracy, and the act was done in furtherance of the conspiracy. It must be something that could be reasonably foreseen as a natural consequence of the unlawful agreement. The substantive crime must be closely connected to the conspiracy, thus provided the causal relationship between conduct and result.

Compare to accomplice crimes: a coconspirator, unlike accessory liability, does not require participation in the commission of the offense.  However, it does require proof of preliminary agreement.


State v. Bridges

There’s a party, and D gets into an argument and D leaves to get his friends.  They get some guns, they want to intimidate some of the guys at the party.  As a result of the fight, someone gets shot and dies, another is shot in the shoulder and seriously injured.  Bridges was not involved in the shooting.

Is there a causal relationship between what bridges did and the shooting,? Sure, - but for him bringing these ruffians back the fight wouldn’t have happened.


The there has to be a specify intent to commit this crime.

Does the Pinkerton Rule apply?

The statute does say what kind of intent is necessary for this.

Stein: an attorney suggests to a mobster which home would be good for a burglary.  A year later the mobster breaks into the house an there were people there, which made it an robbery, and then it lead to kidnapping and assault.

p. 727.  Atty is guilty of offenses what happen at the house.

p. 731: the causation requirement.  It’s but for causation, unless the cause is too remote.  So, to incorporate the causation requirement, they say the act must be a necessary part of the offense. 

Under our holding…it must be in furtherance, a natural and probably consequence , reasonably and closely connected.


From the evidence a jury could conclude that a reasonably foreseeable risk and a probable and natural consequence of carrying out a plan to intimidate the crowd by loaded guns would be that one of the gunslingers would intentionally fire at somebody, and, under the circumstances, that act would be sufficiently connected to the original conspirational plan to provide a just basis for a determination of guilt for that substantive crime.


What state of mind are you liable for under the Pinkerton Rule? – Negligence.


MPC says you’re either an accomplice or you’re no liable.

Hypo:  suppose bridges barrows a car from a friend, and the friend knows that he’s using the car to go back and get into a fight, when someone is killed, does the person who lent him a car liable for murder?  Would it make a difference if he knew that guns would be involved?  WOuldn’t this make it foreseeable.


First find a conspiracy, then decide if the person is liable for crimes other than the objet offense.  There are two intents.  The itent to lend a car and the intent that it be used for the crime.


2. Laticia is convicted of conspiracy for carrying a firearm during a drug trafficking offnse.  If she knew of the drug conspiracy, it would seen that she could foresee the use of guns?


Why might there be a due process problem with imposing the Pinkerton Rule:  Strict liability.  Pinkerton Rule is objective. MPC subjective.

“Due process constrains the application of Pinkerton where the relationship between the defendant and the substantive offense is slight.”

EX: Wife is convicted under coconspirator to a large drug operation run by her husband.  Her participation was answer the phone, taking messages.  Held, Where a D has little or no connection to the predicate drug offense, another conspirator’s use of a firearm in relation to the predicate offense may, in some fact situations, be unforeseeable.  In those situations it would violate due process. D ‘assisted’ only so much as she acted as a spouse.


3. Withdrawal:

If a conspirator effectively withdraws from a conspiracy before a crime is committed by a coconspirator, the withdrawal precludes liability under the Pinkerton Rule for post withdrawal substantive offenses committed by the coconspirator.

Withdrawal is not a defense for conspiracy.

Statute of limitations.  The time of withdrawal will start the the statute of limitations for you prosecution running.

Sufficient withdrawal:  In order to successfully abandon a scheme a party must communicate to the other’s involved his intention to do so.  If D at no point informs his coconspirator, then he had not withdrawn.

A conspirator can withdraw from a conspiracy by (1) disavowing the unlawful goal of the conspiracy (2) affirmatively acting to defeat the purpose of the conspiracy; or (3) taking definite, decisive, and positive steps to dissociate himself from the conspiracy.

Note: D may not need to inform each member of the conspiracy if there are so many that it would be unmanageable.
CL: withdraw this acoomplishes two things.  It is a defense to the crime of conspiracy

TEXAS 15.02 – voluntarily and completely withdraew you criminal objective, and take further affirmative action that prevents the commission of the object offense.  This is the defene to conspiracy itself.  But withdrawal will also preclude liability for crime committed thereafter.

C. Viarious Liability.

CN:  Janet is being prosecuting for the sake of intoxicants outside the hours for being open. Is she liable as an accomplice? No, she has no intent to aid , nor did she give any aid. Is she a coconspirator? No.  If we impose liability on her for this, it is based purely on basis of her relation with the actor.  Here, the person has no mens rea and not actus reus.  So this is strict liability.  DO we have to find that she was negligence in hiring her employee? No.


TEXAS: selling alcohol to a minor.  A person commits an offense to sell alcohol to a minor.  The acts of the employee will not be attributed to the employer so long as there is an appropriate training program.


Vicarious liability, in contrast to strict liability, dispenses with the requirement of the actus reas and imputes the criminal act of one person to another.

Strict liability allows for criminal liability absent the element of mens rea found in the definition of most crimes.

Scope of employment: Liability for the acts of others is limited to their having acted withing the scope of employment, thus conduct which has a factual connection and with which the accused has some responsible relation to eh public danger envisaged by the legislature.


When it is imposed: 1) to protect the public health and safety, public welfare offenses. 2) crimes imposing monetary penalties, fine only; 3) difficulty of the state to prove that the corporate agent or natural person licensee was negligent in hiring an employee; 4) the number of prosecutions may be so large that legislation wanted to relief the prosecution of the task of proving employer knew of or authorized the violation or was negligent.

EX: an employee of a liquor store keeps the store open after 1am to throw a private party for his friends.  A statute provides that having a liquor store open between 1am and 8am will result in a misdemeanor.  Held, keeping the store open is something the employer could reasonably have foreseen, thus is was in the scope of employment.  D is guilty and must pay the $200 fine.

CN: is the employee liable for theft? Yes.  He’s giving the alcohol away.

Issue: was the employee working within the scope of his employment.

There is no express language in the statute imposing this liability.  But they have interpreted several statute in the past to impose liability and the legislature has not changed the statute, it must mean the legislature meant to mean this.

The employee testified that he had never been authorized to stay open, that he had been instructed to close at that time.  So, Janet did everything she could. Thus she wasn’t negligent, but that doesn’t relieve her from liability.

The Supreme Court has upheld statutes imposing criminal liability for some types of offenses without proof that the conduct was knowing or will full or negligent.

Was he totally outside his authority? –

DISSENT: bartender was acting outside the scope of employment, he didn’t collect for the drinks, and didn’t expect to get paid.  This seems to be the stronger argument.

Vicarious liability is exceedingly rare in criminal law.


CN: An employer held liable solely because of their relationship is being punished for status.

1. Vicarious liability may be mitigated by a defense that the accused could not have prevented the crime.

                Parks, a corporation president, is charged of violate the Food and drug act.

He says he didn’t know.  Viewed as a whole the instruction did not allow conviction solely by virtue of his situation.

He would have a defense if he could show that he were totally powerless to prevent the violations committed.

CN: so you could


2. No incarceration.  Courts have agreed that punishment of incarceration cannot as a matter of due process, be imposed as a consequence of vicarious liability. Some courts don’t accept various liability as a basis of criminal liability at all.

TEXAS  - not vicarious liability.

Defenses, justification and excuse

True defenses v. not true defenses.

Alibi is not a true defense, you’re attacking the prosecutions proof.

Self defense is a true defense.  You have a defense based on your motive and your motive was to protect yourself.


Justification: the act was not wrong because of the circumstances.

Excuse: the conduct was wrongful but the person has an excuse.

In the Cabin boy case, the cabin would have to consent to being killed, if it were termed a justification.

InTExas, the burden of disproving self-defense is on the state.


Sometimes we require the defense be reasonable because we don’t trust juries.


Imperfect defenses:  this is related to tha CL view that it will escuse specific intent by not general intent.

In a self defense claim, could that fact that he was frightened.

MPC: Is an honest belief of the necessity to use deadly force, unless the honest belief was arrived at negligently.


Necessity (choice of evils): The defense of necessity exonerates a defendant where the harm resulting from a violation of the law is significantly less than the harm that compliance would have wrought.


Shipwreck cases:

In Holmes, the first mate started throwing peopke over board because his was afraid the longboat would sink.  He was convicted because the judge says these people are on unequal footing.  You can keep only enough seament to run the ship.  If they are on equal footing then you choose by drawing lots. 

-When you’re reduced to the state of nature, it hard to think rationally.  And lawyers try to impose rationality.  He was convicted. But the convictions were remitted.


Dudley v. Stevens.  Necessity may be a defense but not a defense to murder.  He was sentenced to hard labor, but then pardoned.


Necessity and duress tend to overlap

TPC 8.05- duress


Justification/necessity related to circumstances, while duress relates to pressure from other people.


Some jurisdictions limit the availability of duress to exclude homicide.

In TEXAS both duress and necessity could be used for homicide.


United States V. Bailey –supreme court

CL defenses

Duress: excuses criminal conduct where the actor was under a lawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law.

Necessity (choice of evils):  situations where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.

The distinction has been blurred somewhat.

However, if there was a reasonable legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, the defense will fail.

EX: D escapes from prison and is at large for three months.  When captured he asked for a jury instruction of duress or necessity because the prison conditions were so terrible.  However, when he was at large, he never attempted to turn himself in.

In the context of a prison escape, the escapee is not entitled to claim a defense of duress unless and until he demonstrate that, given the imminence of the threat, escaping was his only reasonable alternative.

In order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.  Even if the conditions justified departure they do not explain continued absence.

CN:  Once they escaped they did not immediately contact the authorities to turn themselves in. The reason for their escape was duress.  Necessity and duress tend to overlap, because they were afraid of the physical threat of other inmates and the conditions of the jail.

They key in these cases is getting the evidence in, because though it may not be a defense, the jury may find it mitigating.  SupCt says as a matter of law they cannot inrtroduce this evidence. Both N and D are issues dealing with alternatives.  If there are alternatives you will lose that defense.  The govt says the conditions weren’t so bad as to justify his initial departure.

Hypo: is a guy falls asleep in the laundry truck and it drives you out of the prison, as opposed to someone holding a gun to your head.  If someone holds a gun to your head, you are making a voluntary choice, even it it’s a hard choice.

They can’t raise a defense to their leaving, because it’s a continusing offense.  There’s not a jury issue of whether their departure was s


Hypo:  thirty minutes after leaving they call the district attorney and turn themselves in.  Can they admit the evidence?  Probably.

Blackmun says, if the conditions were that bad, once they surrender themselves they’d have to got straight back to the place they were trying to avoid.

Rehnquist could have reported this. Blackmun says this should be an jury issue.

Stevens says jail conditions are bad, but this is not the way to solve the problems.

Does raising a defense mean he’s going to win? No. Is seems like we don’t trust the juries.

Texas, necessity p. 8: 9.22


1. A necessity defense requires the defendant to show that he (1) was faced with a choice of evils and chose the lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated a direct causal relationship between his acts and the harm to he averted, and (4) had no legal alternative but to violate the law.

EX: D enters a military installation in protest of the building of nuclear submarines, claiming that, having failed through all other means, he had a necessity to do this.  He says the risk of the deployment of the trident submarine was greter then the harm of trespass. Held, not a defense.  The harm is not imminent, and there are other reasonable alternatives.  Just because alternative means fail does not mean they are not alternative.


2. What does raise at least a jury issue under necessity? 

EX: A was drunk and asked B, a minor, to drive him.  When cops began driving behind them, B panicked and jumped into the back seat.  The car began to careen out of control, entered the other lane in oncoming traffic.  A jumps into the drivers seat and takes control of the car.  When police stop him he is arrested for DWI.  Held, A’s control of the car while intoxicated, an illegal act, was necessary to prevent a greater harm, namely: automobile collision ptentionally resulting in personal injury ot property damage.


Eichorn: the homelss man says there was no other alternatives to sleeping in the street and allow the defense of necessity.


A woman believe her husband is sexually molesting the children.  The court gives custody to the father.  He abducts them to South American.  When she comes back and is prosecuted, she raised the choice of evils defense.


3.  If you smoke dope for you medical condiction, can you get a defense of necessity.  SupCt held that the federal govt did not intend to create a justification of this.  If they give one defense – govt research- that means to exclude all others.  The harm sought to be avoided by the statute is not as great as


TX: 8.05(d):  the defense is not available if the person puts themselves in the position.


4. A D;s fault for placing himself in a situation may bar the D from relying upon that situation

Williams.  Attmepted probbery and house breaking.  Claim – they made him held.  State says he has no defense because he borrowed the money

Hypo:  a gambling owes a mobter money because of gambling debts. He’s a bank teller.  They say, well absolve your debt if you lift some money for us and if you don’t we’ll break your legs.

TX, 8.05 – it is an affirmative defense (b) and a prosecution to a defense that does not constutite a felony

Objective standard – a person of reasonable firmness.

Instead od a threat to break his legs, they threaten to kill his family?

(b) was he reckless in making himself in debt to the mobster?  Was he aware of the risk that if he indebted himself for gambling that he would be compelled to rob a bank? – Probably not.  It an affirmative defense, so the burden is on the defenanta.

9.02 () justification the burden is on the prosecution.  So necessity is a beter claim.




(1) It is an affirmative defense that the actor engage in the conduct charged to constitute an offense because he was coerced to do so by the use, or a threat to use, unlawful force against that a person of reasonable firmness in his situation would have unable to resist.

(2) This defense is unavailable if the actor recklessly placed himself in a situation in which it was probably that he would be subjected to duress; or if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

Justification Generally: Choice of evils

Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sough to be prevented by the law defining the offense charged; and (b) the law doesn’t prohibit this defense.

This justification is unavailable if the actor recklessly or negligently brought about the situation requiring a choice of evils.



Defense of Persons, Property and Related Matters

1. Self-defense Generally

This is based on the premise that if there is a stimulus, a response to that stimulus is justified.



Non-deadly force                                 Non-deadly force

Deadly force                                                         Deadely force


If a non-deadly force is used against you, a deadly response will be considered excessive.


CL: you had to retreat to the wall.- unless you’re in your on home (castle esception)

American has the true person rule, that an innocent person does not have to retreat.

TX: 9.32 retreat rule? – Yes, if a reasonable person would

CL: Castle exception – no retreat if in house.

TX: - would a reasonable person retreat in their own home? – probably not.  TX has a hybrid position on retreat.


Initial aggressor

9.31- when and to the degree he reasonably believes

(b) exceptions: not justified for verbal provocation alone.


You cannot use force against a peace officer, unless the police is using excessive force.  Even if he arrests you unlawfully you cannot resist.  Only if the force he uses in arresting you is excessive.


If you start the fight, then you aren’t justified force in self-defense.


Words alone

Hypo:  If I call you a bad name, and you attack me, I can use force against you.  Verbal provocation does not justify the use of force.


Deadly force can be used to protect property if someone is breaking into your – you must believe that deadly force is necessary to prevent the commission of a felony.



If you’re the initial aggressor you don’t have the right to self defense, but it may be revived if you withdraw.


Mutual combat:

If both parties willingly enter a fight on equal terms, the situation is characterized as mutual combat and neither party has aright of self-defense to actions taken during the fith.  Only by withdrawing can a party regain the right of self-defense.


State v. Norman

Woman shoots her husband three times in the back of the head.  She shot him once, checked his pulse, and then shot him two more times.  So she clearly had the intent to kill him.

She claims battered women’s syndrome.  Experts testify that she manifests the characteristics of a battered women’s syndrome: sense of helplessness.  Many would say she should have gotten out of it, but the expert says this was learned helplessness, there’s nothing she can do.

The problem: did she kill him because she feared for her life or for revenge?

The judge refuses to give the self-defense instruction.  Because he was asleep.  (If he had awoken and made a move toward her, she would have had a better chance.)

AppCT: thought she should have gotten the instruction because the evidence was relevant because for two elements.

Two elements: did she herself have the fear and the reasonable person would have the fear.

SupCt.:  She failed to provide evidence that she was in imminent danger.

TX: 9.32; the force must be immediately necessary to protect yourself.

Here, there is no evidence of imminent harm.  There is evidence of past harm.

Dissent: says there are four things that have to be established:  a subjective believe, that it’s necessary to save yourself from great bodily harm, and it has to be reasonable.  From her perspective it threat was imminent.


The jury convicted her of manslaughter, which is the result of an incomplete defense.



1.  Most courts accept evidence of Battered women’s syndrom.  But how do you instruct the jury.  As a reasonably prudent battered woman?

Most court allow evidence of battered women’s syndrome in self defense.  Some say its admissible on what she subjectively believed, but this doesn’t make any sense; but its also admissible on her objective belief.

You want to make her conduct justified, because that’s saying that she did nothing wrong.


As a reason person suffering from battered women’s syndrome would behave.


2. What if you’re in a jurisdiction that require you to retreat when you’re in your own house.  The wife didn’t have an exclusive right to occupy the house, to no defense.


3. Defense requires pretrial notice of D’s intend to raise the defense of battered women’s syndrome.


The person’s subjective believe that there is imminent is relevant, as well as what a reasonable person would perceive.


All this justification stuff is about alternatives, was there a better. 


Resisting Arrest:

State v Hobson:

She refused to allow the officer to take the son to the police station.  The officer called back up. She still refused.  She was arrested for obstructing an officer.


At CL there is a privilege to resist unlawful arrest.

Wisc. Past a statute to adopt CL.  But A superior social policy is advances by a rule which modifies the common law rule so as to not permit resistance to an unlawful arrest unless the health and safety of the individual or a member of his family is threatened in a way that is not susceptible of cure later in the court room.

MPC & TX: the use of force is not justified to resist arrest made by a peace officer even though the arrest or search is unlawful.

Reason: you can get out on bail, civil remedies.

But one could argue that these alternative remedies are not real. But once you allow any resistance to force, it will likely escalate.


In TX there is the right to citizen’s arrest, but


The court adopts the MPC rule.  But this rule doesn’t apply to this case, for ex post facto reasons. Due process would be violated if they applied the new rule to this woman’s case.  In future, you cannot resist an unlawful arrest unless there is excessive force by the police.


Dissent: if you don’t recognize the justification the person will be liable for battery. Civil damages are not an adequate remedy.


Bottom law: at Common Law a person has a right to resist unlawful arrest, a person may use as much force as is necessary short of deadly force.

Modern Trend: In TX & MPC – if you resist you will be liable for battery, obstruction of justice, etc.






4.  Defense of others


State v. Beely

Beely accompanies John home to his apartment late at night.  John enters and finds his wife in wed with Harding.  They begin to fight.  Beeley enters and hits Harding once.  He is charged with assault.


Beeley says the TC erred in instructing the jury that one acting to defend another has only a derivative right of self-defense, and this his actions are not judged by the reasonableness of his own conduct and perceptions.  Beeley could have thought that Harding was an intruder who had raped Julie.


Two Rules:

Alter ego (minority): One who comes to the aid of another must do so at his own peril and should be excused only when that other person would be justified in defending himself.  The right to defense another is co-extensive with the other’s right to defend himself.

Modern approach: As long as the defendant-intervenor reasonably believes that the other is being unlawfully attacked, he us justified in using reasonable force to defend him. 


MPC: Three conditions:

1) the force must be such as the actor could use in defending himself from the harm that he believes to be threatened to the third person. Thus, the actor may use the same amount of force that he could use to protect himself.

2) The third person must be justified in using such force in the circumstances as the actor believes them to be.  Thus, if the third person was resisting an arrest by a known police officer, he would have no defense and, if the circumstances were known to the actor, the actor would have not defense either.

3) The actor must believe that his intervention is necessary for the protection of the third party.

TX: 9.33: we now allow a third person to intervene if under the circumstances as the actor reasonably believes them to be he would be justified in using the same degree of forces he would need to defend himself. So this differs from the MPC.


Mistake: C sees A and B fighting.  He helps B.  But B was the aggressor.  So B wouldn’t have the privilege.   Does C’s mistake deprive him of the justification, only if it is unreasonable.  Decided by the jury, so size is going to be really relevant.  If B is the little guy then it would be reasonable for C to come to B/s defense.  Also, who’s winning the fight.


MPC doesn’t have anything about reasonable belief, only what they subjectively believe.  Here he is justified if he reasonably believes as long as the intervenor reasonably believes.


                NOTE: this does not apply to arrestee’s, because under the MPC, a person cannot resist unlawful arrest.


TX 9.33: under the circumstances as the actor reasonably believes them to be...and he reasonable belives his intervention is immediately necessary to protect the third person.


1.  State v. Young.  D came upon two plain clothed police officers making an arrest.  D thought they were beating up on a black man and rendered aid, injuring one of the police officers.  Because the black man was improperly resisting them, D did not have the privilege to aid him. Even though no one had no way of knowing that his V was a police officer.  The result would have been different  if the


2. Limited to family members.

3. Privildge not applicable to third parties.

4. Third party can’t claim battered wife’s syndrome


TX. 9.34 Deadly Force.  Justified when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other’s life in an emergency.


5. Defense of Property--justified

The privilege permitting the use of force to defend property is limited to non-deadly force.

TX: Affirmative defense to civil action to personal injury if using deadly force against someone is entering your house.


State v. Nelson

False imprisonment case.  D found some of his valuables missing, held V at gunpoint believing he had taken them.  D claims justification of defense of property.


Statute:  A person is justified in the use of reasonable force to prevent or terminate criminal interference with his possession or other right in the property.


This does not apply if the property was taken out of the owner’s presence.  The purpose of the statute is not to recover property but to prevent wrongful interference with it.  So, once they get away with it, you can’t go after them.  They think it would be a dangerous precedent. The Defense must occurring during the actual dispossession.


TX: 9.41(b) a person, 9.42


Elements of a justification defense: 1) that a direct causal relationship must be reasonably anticipated to exist between the defender’s action and the avoidance of harm; 2) that the harm to be prevented must be imminent, 3) that there is no alternative available which does not involve violation of the law, and 4) that the criminal act that D seeks to prevent or terminate must be commited in the D’s presence.


Holding:  Because the theft did not occur in D’s presence he is not entitled to a justification defense.


1.  Hot Pursuit Exception, TX. Force is generally permissible if it is used in hot pursuit, i.e., in immediately after the dispossession.

CL: when property is taken in fresh pursuit it is deemed to be taken at the beginning of the pursuit, even if the fresh pursuit turns out to be a protracted chase.


2.  No Deadly force.  There is not right to use deadly force, or to endanger life or inflict serious bodily injury in order to defend property.

If Nelson had confronted them immediately after taking the guns.  A TX: Threat of force is, TX&MPC 9.04: as long as the actor’s purpose is limited to creating tan apprehension that he


Hypo:  Homeowners house is broken into.  He see intruder running down alley carrying and valuable vase.  Can he shot intruder?

TO protect property 9.42: A person is justified in using deadly force against another to protect land or tangible, movable property: (2) when and to the degree

But what if he drops the vase.

But if he’s in your house, if could be

9.43: you can protect someone elses property if you reasonably believe reasonably believe the third person ask for held

You need a relationship with the third party that in some way triggers the defense of property.


TX: 9.44 Mechanical devises to protect property – Illegal if designed to cause substantial risk to human life.


Defense of Habitation:  Split of authority.

In Colorado: DF may be used against an unlawful intruder if you think the intruder will use any force.

Older view: may use deadly force to protect the home, if slayer in good faith believes that the killing is necessary to repel assailant or prevent forcible entry, if entry is by force.

Modern view: May use deadly force only if the resident has a reasonable apprehension that the trespasser intend felonious or serious injury to the occupants.


- even though the circumstances may not be such as to justify a belief that there was actual peril or great bodily harm.

- EXCEPTION: If the intruder is discovered already in house you can’t kill him unless it’s in self defense.


MPC:  Force is justified when the actor believes that such force is immediately necessary:


You must first ask the person to leave, unless you believe the request would be useless, or it would endanger yourself or others to make such a request.


Exclusion of trespasser.  You can’t put someone off you land if you know it will cause them substantial harm.


Deadly force:  intruder is trying to dispossess you of your dwelling, intruder is attempting to commit arson, burglary, robbery or other felonious, and as threatened to use deadly force


TX: 9.42 Deadly force to protect property.


Law Enforcement:

A private citizen may use force to make an arrest, either on their own or to assist a police officer.

TX 9. 51

A. a peace officer or a person acting in a peace officers’ present is justified if they have a reasonable belief, and before using the force the actor manifest his purpose...

(b) A person other than a peace officer (or one acting at his direction) can use force when and tot the degree he reasonably believes

(c) A peace officer is justified in using deadly force against another


Hypo:  Would a police officer be justified in using DF against a drunk driver?


9.52: Escape from a penal institution.

No reasonable belief required.

9.61: Parent child

You’re justified in hitting a child if you are the parent.


Educator-student: in theory, corporal punishment is allowed.




Police may set traps without it being entrapment.

Who initiates?

If the officer of the govt merely afford opportunities or facilitates the commission of the offense, D will no have an entrapment defense.


Origin of Intent (criminal predisposition) (subejctive)Sorrels D is convcted of possession and sale of liquir during prohibition.  An undercover agent, a war buddy, asked him for alcohol.  After resisting a few times, he finaly produced alcohol.

Merely Affording a opportunity to commit a crime is not entrapment.

There is if the criminal designs originates in the mind of the police officer’s rather than defendants.  SO here, it wasn’t his intent.

The spirit of the statute would be violated if we were to convict otherwise innocent persons.  He was entitled to a jury instruction of entrapment.  Because this deals with intent, it is a question for the jury.

Evidence problem:  Establishing predisposition allows evidence of past criminal conduct, which means the jury may be convicting on the past activity.

Issue for court or jury?

Subjective approach jx – jury (determine guilt).


Objective approach jx – court.


Entrapment as a matter of lawSherman (1958): convicted of three sales of narcotics.  Sherman met govt informant at the doctor’s office to recover from drug addiction.  He started asking him for a fix.  At First D avoided it.  Then at last, he decied to get him some heroine.  Jury was instructed on entrapment.  They convicted anyway.  S.Ct. Reverses the conviction.  They say that as a matter of law there was  entrapment.  An informer is being paid, so it’s in their interest to make cases.  He criminal conduct was a product was the result of.  The informer had to push him pretty hard to get him to do it.

Issue:  Whether agent induced an otherwise unwilling.

Because were focusing on the govts conduct, this is a question for the judge, not the jury.

Entrapment occurs when an officer hold out an inducement to those engaged in criminal conduct and ready and willing to commit further frimes should the occasion arise.

Entrapment does not occur if the officer’s conduct will induce those who would normally avoid crime and through self-struggle resist ordinary temptations.


Defense should not look to the accused’s predisposition but rather should focus upon whether the govts’s conduct tended so much to induce criminal activity that the conduct was beyond judicial toleration.


Two Questions

1) D was actually induced? (subejctive)

2) The means would have induced an otherwise indisposed person. (objective)



Due ProcessEssential ingredient.  Russell, Manufacture and possession of meth, because the govt supplied a integral ingredient.  But in some crimes the govt will have to get involved. 9th Cir Reversed conviction, because govt’s conduct was outrageous in this case.  D could have gotten the ingredient elsewhere, but with difficulty.  Jury convicted and S Ct affirmed, because they are applying not objective test (govt) but the subjective test.

Russell Dictum: there might be a case in which the govt conduct was so outrageous that

Hampton: govt informant provided the heroin, and suggested the sale take place.  Under a but for test, there would have been not sale.  SCt affirms.

Subjective v. Objective Approaches


Subjective (Majority): based on Sorrels, focus on D’s predisposition.  Thus determines guilt or innocence.


Objective: based on MPC: focus on officer’s conduct, guilt or innocence of D is irrelevant. D’s prior predisposition is irrelevant.  Acquit D if  officer used outrageous tactics.

-illegitimate purpose


Vallejos, NM, adopts the objective approach.  If officer’s


The disposition must not be a product of the govt’s activity

Jacobson v. United States

D buys some child porn without knowing in advance it’s contents, which got him on a mailing list.  He is badgered for 2.5 years by govt agents posing as lobbyists for freedom of speech and the fight against censorship, posing as organizations designed to promote freed speech.  Finally, the US Customs successfully got him to order a magazine of child porn.  There were no other unlawful materials in his house.  He got an entrapment instruction and the jury convicted him.


Issue: Whether the govt carried its burden of proving that D was predisposed to violate the law before the govt intervened? – No.  The predisposition came from the govt.  As a matter of law, he was entrapped.  They still apply the subjective theory, but as a matter of law he was entrapped.


Holding: Govt agents may not originate a criminal design, plant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the GOVT, may prosecute.

If govt merely provided the opportunity to commit a crime, the entrapment defense does not apply.

Here there is no evidence of a predisposition.

Law enforcement goes too far when it implants in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.


CN: the govt doesn’t need a reasonable suspicion before the make the contact.

Hypo: Is being a former drug addict mean he’s predisposed to manufacturing drugs?

Is being on the mailing list for legal porn mean you’re predisposed to buy child porn?

When does the predisposition have to occur.  Here, the evidence shows that he was predisposed only after the govt engages in this campaign.


MPC: Entrapment is not a defense for violent crime.



Usually the inquiry is whether a suspect is predisposed before the commission of the crime, not before the govt makes initial contact with him.

Yes the court hold that the govt must prove not only that a sustpect was predisposed to commit the crime before the opportunity arose, but also before the govt came to the scene.



1. Five factors relevant to determining predisposition. 


2. Should entrapment directly or indirectly require that law enforcement officers have sufficient reasons for approaching a suspect in some situations? – No.  A police officer needs no reasons to think you’re predisposed


3. The SCt and federal jurisdictions you can say both that you didn’t do the crime, but if you did it was entrapment.  Matthews allows inconsistent pleadings.

Some jx including TEXAS, say you can’t have inconsistent claims, have to admit it before you can get this defense.



The commitment to a mental institution is for an indeterminate period.  This defense is rarely raised.

Competency to stand trial.  Distinguish insanity as a defense from Pretrial competency.  Interests:

Pretrial- competency

If he can’t consult with his lawyer then he will be committed, until he has regained his competency.

Trial – defense of insanity

Post-trial—commitment punishment.


Insanity- I did it but.....

Diminished Responsibility—I didn’t have the intent, so I didn’t do it.


Purposes served by the defense of insanity – we want to punish and stigmatize criminals because they are morally blameworthy. 

But does the defense do a good job ao treating rather than punishing criminals.

It’s only raised when the death penalty is invoked.

The big problem:  How to define insanity in the instruction to the jury.

What is the appropriate legal standard for determining insanity.  Because what is the average insane person?  The jury has no frame of reference.  If you are on the D you don’t want anyone on the jury to


Cognitive Approach--M/Naghton---D shot the prime minister’s secretary, operating under delusions, that the person causing all his problems was Sir Edward Pete.  The jury acquitted him. The House of Lords  published an opinion.  He was operating under this mistake delusion. It sounds like a mistake of fact tests.  It must be clearly proved that, at the time of the committing of the act, the party was laboring under such a defect, of reason, from disease of the mind as not to know the nature and quality of tha ct he was doing, or is he did not know it, that he did not know he was doing what was wrong.


Irresistable impulse approach—D may know what he’s doing but cannot control it.  He understands his actions but is incapable of controlling his behavior.


ALI—adopted another test.  Substantial capacity test:  This was a combination of M’Nachton and irresistable impilse, plus permitting acquittal on the basis of volitional impairment, lacking capacity to appreciate the criminality of his conduct.


But then McHinkley

Goct had the burden of proving he was not insane.