Crim Law Outline

Essential Supplements for Success in Crim Law:

1L Law School Criminal Law outline based on the following books:

Criminal Law Outline

Model Penal Code


MPC 1.03 – Territorial Application

  • Deals with crimes occurring outside of the State
  • Convicted for own conduct or other’s if:
  • Occurs within the State, or,
  • If out of this State, then sufficient under laws of this State to constitute
    • An attempt to commit an offense within the state
    • A conspiracy to commit an offense within the state and an overt art in furtherance of such conspiracy occurs within the State


MPC 1.12 – Burdens of Proof & Presumptions

  • Element: conduct that negatives an excuse or justification for the action.
  • Each element must be proven beyond a reasonable doubt
  • Prosecutor has burden of proof (production & persuasion) beyond a reasonable doubt for all elements of the crime
  • The prosecutor has the burden of production regarding each element of an offense.
  • Regarding affirmative defenses, the prosecutor is not required to disprove an affirmative defense unless there is evidence supporting such defense.
  • Burden of persuasion: prosecution has the duty to disprove defenses, assuming that the D has satisfied her burden of production.
  • Does not apply to defenses that the D must prove by a preponderance of evidence.
  • D may have burden of production
  • May explain constitutionality of permissive presumptions even when fact proved does not establish fact presumed beyond reasonable doubt; it may establish it if D does not offer evidence to negate the presumption and has burden of doing so
  • Permissive presumption is constitutional when there is rational connection between proven fact and presumed fact (95% likelihood)
  • Mandatory presumptions, rebuttable or irrebutable, are unconstitutional although legislature can produce same result by changing the elements of the crime

Burden of Proof Overview

  1. Prosecutor has the initial burden of production beyond a reasonable doubt regarding each element of the crime charged.
  2. The D has the burden of producing evidence pertaining to any affirmative defense raised.
  3. Trial judge then decides on these
  4. Prosecutor also has the burden of persuasion regarding every fact necessary to constitute the crime charged.
  5. Legislature may allocate to the D the burden of persuasion regarding facts that relate to an affirmative defense.
    1. But does a fact relate to an element? Legislature unsure



  1. Mandatory rebuttable presumption: requires a finding of the presumed fact upon proof of the basic fact, unless that finding is rebutted by the opposing party.
    1. Shifts the burden of persuasion to the D
    2. Unconstitutional (as is an irrebutable or conclusive presumption)
  2. Permissive presumption: the fact finder may, but need not, find the existence of the presumed fact upon proof of the basic fact.
    1. It is more like an inference
    2. An inference is a logical bridge between one fact believed to be true and a second dact, the truth of which is at issue.


MPC 2.01 – Voluntary Act/Actus Reus

  • No person may be convicted of a crime in the absence of conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.
  • Prosecution must persuade beyond a reasonable doubt
  • Possession is an act if the possessor either knowingly obtained the object possessed or knew she was in control of it for a sufficient period to have been able to terminate possession.
  • 2.05(1) – these requirements don’t apply to just basic violations (max penalty is a fine or civil penalty).


  • A person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance.
  • Not guilty unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable.
  • Liability for omission in 2 instances:
    • If law defining offense provides for it
    • If the duty to act is otherwise imposed by law
      • Status relationships: no duty to act unless stand in a special relationship to the person in peril.


MPC 2.01 -Voluntary Act/Actus Reus

  1. An offense consists of a voluntary act that causes a social harm (a willed physical or mental act)
  2. Constitutionally required as condition for criminal punishment, status crimes are illegal
  3. Certain things like habits and brainwashing are regarded as voluntary act but hypnosis and other similar conditions are not voluntary
  4. Prosecution must prove voluntary act, but D may have burden of production regarding facts like hypnosis, there may be a permissive presumption that act was not done under hypnosis
  5. Possession is usually on omission, failure to dispossess among reasonable time
  6. Conduct crimes: defined in terms of harmful conduct. Harmful results are not required.
    1. Ex: driving under the influence of alcohol (actus reus of the offense)
    2. The social harm of the crime – the wrongful conduct of driving a car in an intoxicated condition.
    3. No harmful results required.
  7. Result crimes: a prohibited result
    1. Murder is a result crime because the social harm of the offense involves the death of another human being
    2. Does not matter how the result occurs, just that it does.
  8. Attendant Circumstances: in order for any offense to occur, certain facts or conditions must be present when the actor performs the prohibited conduct and/or causes the prohibited result that constitutes the social harm of the offense.
    1. The social harm has not occurred unless the specified attendant circumstances are present.
    2. Burglary is not complete unless there is a “breaking and entering” of the “dwelling house of another” at “nighttime.”

MPC 2.02 – General Requirements of Culpability/Mens Rea

  • Prosecution must prove some form of culpability regarding each material element of an offense.
    • EXCEPTION: (2.05) the voluntary act and mens rea requirements need not apply to offenses graded as violations rather than crimes (cannot result in imprisonment or probation).
  • Every mental term should be reducible to one of four kinds (for mens rea): 3 are mental states, 4th – negligence – is the absence of the required mental state
  • One is not guilty of an offense unless he acted in one of the four ways as the law may require with respect to each material element of the offense.
  • Purposely
  • Knowingly
  • Recklessly
  • Negligently: fails to avert to a risk
  • 3 aspects of actus reus: conduct, results, and circumstances
    • It exists, no mens rea needed: strict liability
  • Purpose (conscious object)
    • Person acts purposely if it is his conscious object to engage in conduct of that nature or to cause such a result
    • To have purpose you only had to believe that the circumstances are as they are, i.e if status was killing a police officer, you don’t have to desire that it be a police officer
    • You just have to have conscious behavior to commit behavior, not that circumstances are what they are
    • Purpose is what you desire, not what you believe will actually happen
    • Unless don’t believe there is any possibility, then can’t have purpose
    • Don’t have to know that something is illegal to be convicted
    • Can be conditional
    • Actions need to only slightly increase the risk
  • Knowledge
    • Aware to a practical certainty that his conduct will cause such a result
  • Recklessness
    • Consciously disregards a substantial and unjustifiable risk
    • Risk must be substantial and unjustifiable and is objective inquiry, does not center on whether D believed that his risk was substantial and unjustifiable
      • Focus on law abiding citizen
  • Negligence – Inadvertent risk taking
    • Should be aware that there is a substantial and unjustifiable risk that the material element exists or will result from conduct
    • Focus on reasonable person
      • Culpability not prescribed by law, then it should be purpose, knowingly, recklessly
      • MPC presumes that when a mental state is mentioned for the crime, it applies to all of the elements


MPC 2.03 – Causation

  • To be guilty, a person’s conduct must cause the prohibited result (sin qua non, but-for rule).
  • Cause links conduct to result
  • Causation is an element in some crimes more than others
  • Intervening acts
  • Dependent acts are ones that would not have occurred except for D’s act
    • Medical treatment for act he caused
    • Will break causal chain only if unforeseeable and abnormal, tougher to get off here
      • When purposely or knowingly causing a particular result is an element of the offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:
        • Actual result differs in the way that another person gets in way & dies instead
        • Actual result involves same kind of injury & is not too remote or accidental to have a just bearing on the actor’s liability or on the gravity of the offense.
    • Recklessly or negligently are elements of the offense, not est. if actual result is not within the risk of which the actor is aware pr should have been aware.
    • Offenses with no culpability requirement: causation is not established unless the actual result is a probable consequence of the actor’s conduct.
      • Bank robber, teller gets electrocuted from pressing alarm button – not liable for death
  • Independent acts would have occurred even if D had not acted, but which combined with D’s act to produce harmful result
    • D poisoned V and later V got in car accident where he died because of combination of accident and weakened condition
    • Will break causal chain if it was unforeseeable
    • If V refuses medical aid, tires to avoid danger (unless it is abnormal reaction) or subjects himself to danger, it will generally not be superseding cause
  • Death from two mortal wounds
    • Each party is a “but-for” cause of the result, no substantial factor test; “but-for” D1/D2’s act, the death would have occurred.


MPC 2.04 – Ignorance or Mistake

  • Ignorance or mistake as to matter of law is defense if it negatives the purpose, knowledge, recklessness or negligence required to establish material element of the offense (Either actor had culpable state of mind or did not)
  • Not available if D would be guilty of another offense if situation had been as he supposed. However, mistake or ignorance should reduce the grade of the offense to the one he would have been guilty of had the situation been as he supposed
  • Belief that conduct does not constitute offense is defense when:
    • Statute is not known to D and has not been published or otherwise reasonably made available prior to conduct
    • He acts in reasonable reliance on official statement of law afterwards determined to be invalid or erroneous contained in statute, judicial decision, administrative order or official interpretation of public officer or body charged by law with responsibility of interpretation, administration or enforcement of the law defining offense
    • Must prove by preponderance of evidence


MPC 2.04 – Ignorance or Mistake

Defense is incorrect

  1. Mistakes of fact or law are negations of various types of mens rea depending on whether and to what extent the mistakes are culpable
  2. Not a defense but a negation of mens rea, sometimes defense will have burden of production though
  3. If crime requires recklessness than a non reckless mistake will negate
  4. Specific intent crimes can often be negated by any kind of mistake, general intent crimes are usually difficult to negate
  5. When D is claiming mistake under MPC, they are not making a defense, they are denying the charge
  6. Prosecutor has to prove that you didn’t make a mistake which would negate the offense
  7. Any mistake would negate purpose unless it is still your conscious desire that the result occur
  8. If you are charged with knowingly shooting someone and you didn’t know he was there, that would negate knowing part
  9. You cannot really have a reckless belief
  10. Strict liability cannot be negated by mistake
  11. Usually ignorance of criminal law is immaterial, unless knowing that you are breaking the law is an element of the crime
  12. Mistakes of law only relevant if they negate an element of the crime


MPC 2.05 – Strict Liability

  • 2.01 & 2.02(1): No conviction may be obtained unless the prosecution proves some form of culpability regarding each material element of the offense.
  • No culpability required if: Legislative purpose of statute is to impose absolute liability with respect to any element
  • BUT!! EXCEPTION: The voluntary act and mens rea requirements need not apply to offenses graded as violations, rather than crimes. Violations are offenses that cannot result in imprisonment or probation, but may result in fines.


MPC 2.06 – Liability for Conduct of Another, Complicity

  • No crime of complicity in and of itself
  • Innocent instrumentality – a person is legally accountable for the conduct of another person when:
    • Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct
    • Giving the letter bomb to the mail carrier
    • Person who is going to commit the actus reus of the offense is like an extension of the D
    • He is made accountable for the conduct of such other person by the Code or by the law defining the offense;
    • He is an accomplice of such other person in the commission of the offense
  • A person is an accomplice of another person in the commission of the offense if:
    • With the purpose of promoting or facilitating the commission of the offense, he
      • Solicits such other person to commit it; OR
      • Aids or agrees or attempts to aid such other person in planning or committing it; or
      • Has the legal duty to prevent the commission of the offense, but fails to make proper effort so to do; or
      • His conduct is expressly declared by law to establish his complicity
    • S is an accomplice of P if he solicits P to commit the crime
    • S is an accomplice of P if he agrees to aid P in the planning or commission of an offense.
      • Not guilty of what you don’t agree to (kill teller when robbing bank ex)
    • Aid doesn’t have to be used to be an accomplice
    • No bearing on innocent instrumentality provisions
    • No Pinkerton rule so not guilty for the conduct of another solely because he conspired with that person to commit an offense
  • When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if
    • He was an accomplice in the conduct that caused the result (ask whether he was an accomplice in the conduct rather than in the offense charged)
    • He acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense
  • Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
    • He is a victim of that offense; or
    • The offense is so defined that his conduct is inevitably incident to its commission; or
    • He terminates his complicity prior to the commission of the offense AND
      • Wholly deprives it of effectiveness in the commission of the offense; or
      • Gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense
  • An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted
  • A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity


Complicity MPC 1.03 – Territorial Application, MPC 2.06 – Liability for Conduct of Another, Complicity, MPC 5.01(3) – Conduct Designed to Aid Another in Commission of a Crime, MPC 5.04 – Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy


Common Law

  • Person can be held accountable for conduct of another if he assists other in committing offense and in most jurisdictions can be held accountable for conduct of a co-conspirator who commits crime in furtherance of agreement
  • S is accomplice of P in crime if he intentionally assists P to engage in conduct that constitutes the crime
  • Derivative in nature, would not be guilty as accomplice if P committed no substantive crime
    1. Not guilty unless and until the principal was convicted.
    2. Can’t be convicted of a more serious crime than the principal
  • Person is principal in first degree if they commit the crime or with the mens rea required for the commission of the offense, uses a non human or non culpable agent to commit the crime, such as if he causes insane person to commit crime
  • Principal in 2nd degree intentionally assisted in the commission thereof in the presence of a principal in the first degree, either there or in proximity, like getaway driver
  • Accessory before the fact was not present at commission of crime
  • Accessory after the fact is one who with knowledge of another’s guilt, intentionally assists felon to avoid arrest, trial or conviction. Treated as an offense separate from and often less serious than, the felony committed by the principal in the first degree.
  • Accomplice assistance
    1. 3 types
      1. Assistance by physical conduct
      1. Assistance by psychological influence
      1. Often encouragement, even very little, will suffice
      1. Assistance by omission assuming there is duty
  • Amount required
    1. Must assist in commission of the crime, so if his assistance is not used, he is not accomplice
    1. Any aid though that may assist, no matter how trivial, will suffice
    1. No causal relationship needed, would be guilty even if help was unnecessary
  • Mens rea
    1. Usually they need intent to assist the primary party to engage in conduct that forms basis of offense and mental state required for commission of offense
    1. Usually there must be a shared purpose in the unlawful undertaking and knowledge is not enough
    1. If S acts with purpose of assisting P in conduct that constitutes the offense and has level of culpability required as to prohibited result of offense, he would be deemed an accomplice if culpability as to attendant circumstances would be sufficient to convict him as principal
      • Share the criminal intent of the principal
    2. Impossible to be an accomplice in a crime of recklessness or negligence but conviction is allowed as long as the secondary party has the intent to assist the primary party to engage in the conduct that forms the basis of the offense and the mental state – intent, recklessness, or negligence, required for commission of the substantive offense.
  • Mere conspiracy will not make a person an accomplice, they have to have purpose for facilitation of crime
  • Pinkerton Rule (Natural & Probable Consequences Doctrine): To apply, one should ask:
    • Did P commit target Crime A?
    • If yes, did S intentionally assist in the commission of Crime A, i.e., was S an accomplice in the commission of that offense?
    • If yes, did P commit any other crimes?
    • If yes, were these crimes, although not contemplated or desired by S, reasonably foreseeable consequences of Crime A? Then liable for other crimes committed therein
  • Thus, a person may be held accountable for the natural and probable consequences of the conspiracy, which may result in extensive liability if the agreement is a broad one; under accomplice law, however, a person is only responsible for the natural and probable consequences of the particular crimes in which the person has intentionally assisted

Innocent Instrumentality: Directly liable as the principal if D uses an innocent instrumentality

MPC 2.08 – Intoxication

  • 3 types of intoxication
    • Self induced
    • Pathological
    • Not self induce/involuntary
  • May exculpate them in 2 circumstances:
  • 1. Not a defense unless it negates an element of the offense
    • Doesn’t matter if it is specific or general intent, as long as he lacked the state of mind required in respect to an element of the crime
    • Exception
      • A person acts recklessly to an element of the crime if, as a result of the voluntary intoxication, he was not conscious of the risk he would have been aware of had he not been intoxicated
      • Thus a person who should have been aware or ordinarily would be treated as negligent, to be treated as reckless
    • Must be voluntary act, so if intoxication rendered D unconscious, he can raise a defense of involuntariness
  • 2. Pathological intoxication and involuntary intoxication are affirmative defense, if the intoxication causes actor to suffer from mental condition which constitutes insanity under the MPC.
    • Unconscious at time of action due to voluntary intoxication is an affirmative defense b/c no voluntary action. BUT, voluntary action may be found before unconsciousness.


MPC 2.08 – Intoxication

Issues to Remember:

  • Voluntary intoxication is never going to be a benefit to the D
  • Involuntary intoxication is going to be a benefit when it produces legal insanity, otherwise only relevance is if it negatives a mental state


MPC Overview

  1. Intoxication is the disturbance of mental or physical capacities from intro of any substance into the body
  1. Voluntary intoxication the actor is culpable for being intoxicated which exists if person knowingly ingests a substance that he knows or should know can cause him to be intoxicated, unless the substance was a prescribed medicine or he was coerced to ingest it
  1. Involuntary intoxication is when actor is not to blame for becoming intoxicated
  1. 4 instances
    1. Coerced intoxication
    1. Intoxication by innocent mistake
      1. IE they are induced into taking substance they think is legal but really is intoxicant
    1. Unexpected intoxication from prescribed medication
      1. They would have no reason to know
    1. Pathological intoxication
      1. Temporary psychotic reaction, often manifested by violence, triggered by consumption of alcohol by person with pre disposing mental or physical condition and applies if actor didn’t know he was susceptible to the reaction
  1. Usually entitled to acquittal in all circumstances in which involuntary intoxication is defense and likely should acquit them also of general intent offenses
  1. Usually intoxication is not an excuse

Common law Overview

  1. Defense is failure of proof claim that as a result of actor’s intoxication, he lacked the mental state required in definition of crime
  1. Voluntary intoxication is generally not a defense to general intent crimes but can be a defense to a specific intent crime
  1. If use of drugs or alcohol results in long term, persistent mental disorder, D may be able to assert insanity defense



MPC 2.09 – Duress

  • It is affirmative defense that actor engaged in conduct charged to constitute offense if:
    • She was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person
    • A person of reasonable firmness in her situation would have been unable to resist the coercion.
  • Defense is unavailable when D recklessly placed himself in situation where it was probable he would be subjected to duress
  • If he was negligent putting himself in situation, he could be prosecuted for negligent part of the crime
  • Where something is objectively justified
    • Any third party who perceives the facts, must intervene on person on side of justification
    • Victim has no right to resist
  • Excuse:
    • It is still a wrong, no exception for what I did, but I should not be held liable for what I did
    • B/c of the circumstances I was in should render me not responsible
    • Ex is intolerable prison circumstances excuse or brainwashing in MPC (not CL) – coercer causes coerced to perform a different criminal act or result of prior unlawful force
    • Third party who perceives things the same way has no business intervening with party who has the excuse b/c excuses are personal
    • Victim can resist when person just has an excuse b/c still just a wrong being done against the victim
    • Mistakenly justified person is treated the same way
    • D gets off in either case but really difference is in what other people are allowed to do
  • DuressMPC difference from common law:
  • Allows duress as defense to all crimes including homicide
  • Can use it for non-deadly threats as well
  • Imperiled person doesn’t have to be family member or individual
  • Also no imminency requirement – so can be used for prior non-deadly forces


MPC 2.09 – Duress

Questions to Consider

  1. Why does it have to be a human threat (for CL)?
  2. Why does the threat have to be unlawful?
  3. Why can’t it include homicide (for CL)?
  4. Why does it require force?
  5. How idiosyncratic does it have to be?
  6. Why does recklessness in getting yourself into the situation lead to you having no defense at all?

Common Law Overview

Treated as an excuse defense

  1. Under common law, duress could not be used as an excuse for homicide, it can in MPC
  2. Rationale for defense is we want to excuse people who find themselves in a difficult situation where an ordinary person would have committed a crime,
  3. Also, unlike MPC, require human threat
  4. Someone to blame if we let D off, can lead to bizarre results
  5. Common law – person will be acquitted of any crime except murder if criminal act was committed under following circumstances
    1. Another person threatened to kill or seriously injure actor or third party, usually close relative, if they don’t commit offense
    2. Actor reasonably believed threat was genuine
    3. Threat was present, imminent, and impending at time of criminal act
    4. There was no reasonable escape from the threat except through compliance with demands of the coercer
    5. Actor was not at fault for exposing herself to threat
    6. Must emanate from human threat

Common law v MPC

  1. MPC no imminence required
    1. Can be non-deadly, non-imminent threats, or even of result of prior use of non deadly force, as long as person of reasonable firmness would have committed offense
    2. Applies to murders
    3. Doesn’t have to be family member protecting
  2. Similarities
    1. Threats or use of unlawful force, no natural source threats (necessity applies to natural forces)
    2. Only threats to bodily injury count


MPC 3.01, 3.04, 3.05, 3.09 and 3.11 – Self-Defense

  • 3.01 – Justification is affirmative defense
  • 3.04 – Use of force for self protection is justifiable when the actor believes that it is immediately necessary to protect himself against use of unlawful force by other person on present occasion
    1. Use of force not justifiable to
      1. Resist arrest when made by police even when arrest is unlawful
      2. Resists force used by occupier or possessor of property when person knows they are doing it under claim or right to protect property
        1. Except when actor is police or doing citizen’s arrest
        2. Actor is trying to reclaim property he was unlawfully dispossessed of
        3. Actor believes it is necessary to protect himself against death or serious injury
    2. Use of deadly force not justified unless actor believes it is necessary to prevent against death, serious harm, kidnapping, or rape. Can use deadly force when:
      1. He has retreated and D continues to pursue him
      2. He knows of no safe place to retreat
      3. Even if he could have retreated, if he is in his home or place of work, and D is not.
      4. He can use deadly force in all circumstances above if he starts fight and D escalates it to deadly force
    3. And is not justifiable when
      1. The actor with purpose of causing death or injury provoked use of force against himself in same encounter
      2. He knows he can avoid use of force with complete safety by retreating or surrendering possession of their property
  • 3.05 – Justified in defense of others when under circumstances actor believes them to be, person he seeks to protect would have been justified and person believes that intervention was necessary to protect
  • 3.09 – Justification defined in terms of subjective belief but is unavailable when actors belief in unlawfulness of force or contact is erroneous and his error is due to ignorance or mistake as to provisions of code
    1. If actor is reckless or negligent in believing there is justification defense, or if they recklessly or negligently cause injury to innocent person, defense is unavailable when crime indicates recklessness or negligence can establish culpability
  • 3.11 – Unlawful force is force employed without consent of person against whom it is directed and employment of which constitutes an offense or actionable tort except when there is assent, which equals consent, except in serious or deadly harm which can never be consented to.
    1. Deadly force is force which actor uses with purpose of causing or which he knows will create substantial risk of causing death or serious bodily harm. Purposely firing a gun will always constitute this. A threat to cause bodily harm by producing a weapon as long as purpose is limited to using it when necessary is not deadly force.


MPC 3.01, 3.02, 3.04, 3.05, 3.09 and 3.11 – Self-defense

Two classes: justifications & excuses

  1. Overview
  • Justification: exception to the criminal offense. Ex: instead of intentional killing = homicide, it’s intentional killing NOT in self-defense =homicide. Not in self-defense is exception to general rule
    • Not doing anything wrong
    • Socially good, permitted to do
    • Necessity: As a result of some natural force, he must choose between violating a relatively minor offense, and suffering (or allowing others to suffer) substantial harm to person or property. Since it legitimizes illegal conduct, it is like a justification.
      • But, must be
      • Faced with a clear and imminent danger
      • D must expect, as a reasonable person, that his action will be effective in abating the danger he seeks to avoid
      • No effective legal way to avert the harm
      • Harm D will cause by violating law must be less serious than the harm that he seeks to avoid
      • Lawmakers must not have previously anticipated the choice of evils and determined the balance to be struck between the competing values in a manner in conflict with the D’s choice.
      • D must come to the situation with clean hands – can’t substantially contribute to the emergency or wrongfully place himself in a situation.
  • Excuses: have done something wrong but not blameworthy for doing it. Ex: infancy, insanity
    • Have done something wrong but not fully responsible for it so can’t be guilty of it
  • Third party: someone who might intervene: if justified, any third party can come and provide assistance. Or would be justified in using self-defense, third party will be justified in being defender
    • Since act is not a wrong, it’s not personal to the defendant
    • Justification an objective factor of the matter
  • Excuses, however, are personal to the defendant. Doesn’t license anyone to come help if insane.
    • Third party can’t assist an excused act b/c they don’t have the excuse
  • Crucial distinction b/w two is rights of third parties
  • Intermediate category muddies the water: D believes the facts justify his actions but he has made a mistake and perceived situation incorrectly
    • If it were as he perceives, he would have justification but it’s not, he is mistaken
  • Law treats reasonable mistakes as justified but what about third parties? If third party knows you are making mistake, can third party come to your aid?
    • General sense is that third party can’t come to assist you where justification is where you have made a mistake
    • Only subjectively justified b/c you think you’re under attack
    • Not objectively so b/c not true
  • Some states make justification an affirmative defense, others make it part of prosecution’s burden of proof
  1. Justification v. Excuse
    1. In MPC, prosecutor must prove beyond reasonable doubt that it was not self defense
    1. Most jurisdictions do not follow this and treat self defense as affirmative defense which defense must prove by preponderance of evidence
    1. If A reasonably believes just facts exist and they do, there is justification
    1. Qualification of an element of a crime, prosecutor must prove beyond reasonable doubt that there is no justification in MPC
    1. If A doesn’t believe justification facts exist and they don’t, there is no justification
    1. Anyone operating under justification can be aided by 3rd party
    1. Original party, if the aggressor of deadly force, cannot resist when deadly force is returned
    1. When you have justification, you have not done anything wrong
    1. With an excuse, you have done something wrong but you have an excuse, it is personal to an actor and a 3rd party cannot intervene to aid
    1. You have done something wrong but are not blameworthy (insanity, infancy, duress)
    1. Self defense is preemptive justification, happens before the crime is carried out
    1. Person acts before the aggressor, if aggressor shoots first and runs out of bullets, it is not self defense but retaliation
    1. Always a degree of uncertainty involved, you don’t know if the D will really follow through
    1. Shield v Bystander
    1. When you use person as shield and pull them in front of you, you are using them as means to save yourself, when you shoot at person who is using a shield, you are trying to kill aggressor, you are hoping that the person moves
    1. If we treated self defense as an excuse, that would not allow 3rd party to intervene on their behalf
  1. Self Defense
    1. Common law
    1. Justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by other person
    1. Deadly force is justified if actor objectively reasonably believes use is necessary to prevent imminent and unlawful use of deadly force by the aggressor
    1. MPC
    1. Person is justified if he believes force is immediately necessary to protect against exercise of unlawful force by other on present occasion
    1. Differ from common law in 2 ways
      1. Drafted in terms of actors subjective belief in need to use force, belief need not be reasonable but see 3.09
      1. Takes away imminency requirement, instead “immediately necessary”
    1. Retaliation is not pre-emptive, self-defense is. Once it has already happened, no longer defending against it
    1. Self-defense: never know for sure what would have happened. Don’t know whether really murderous intent, etc
    1. Self-defense ok but pre-emptive force not ok according to law – but there is NO DISTINCTION. Self-defense IS pre-emptive. Just a Q of how soon/how likely the attack is
    1. Pre-emptive nature of self-defense – at what time is it justified?
    1. THINK ABOUT: pre-emptive nature: self-defense – currently intend to kill you, likely to intent to kill you in future, best to act now? What is justified
    1. Always dealing in probabilities – not 100% sure of risk. How likely to change mind/fire bad shot?
    1. How high does probability of serious harm/death to be justified in using deadly force?
    1. Involuntary Russian Roulette: justified to use deadly force to defend yourself?
    2. Pre-emptive actions means you never know how something would have turned out if you hadn’t used force


MPC 3.02 – Choice of Evils/ Necessity

  • Conduct which the actor believes to be necessary to avoid harm or evil to himself or to another is justifiable provided that
    • He believes that his conduct is necessary to avoid harm to himself or another
    • Harm or evil sought to be avoided by conduct is greater than sought to be prevented by law defining offense charged
    • Neither code or law defining offense provides exceptions or defenses dealing with specific situation involved
    • There is no legislative purpose to exclude ht justification that plainly appears
    • BUT, when actor is reckless or negligent in bringing about situation where they had to choose, justification defense is unavailable for offense that includes negligence or recklessness as culpability
  • Broader than common law b/c:
    • No imminency requirement
    • Don’t automatically lose defense just b/c at fault, defense is only unavailable if prosecuted for a crime of recklessness or negligence and he acted recklessly or negligently in bringing about the emergency or in evaluating his conduct
      • Ex: D recklessly starts a fire & realizes it will soon burn down the town so he purposely burns V’s farm to create a fire line to prevent the major conflagration. Justified in purposely burning V’s property but prosecuted for original reckless act.
    • Generally applicable to all forms of necessity from emergencies created by natural forces, to physical harm to persons or property to homicides (may kill to save a larger number of lives).


MPC 3.06– Defense of Property

  • 3.06 – (Conforms w/ CL) Non-deadly force to prevent or terminate an entry or other trespass upon land, or to prevent the carrying away of personal property is justified when actor believes:
    1. The other person’ interference with the property is unlawful
    2. The intrusion affects property in the actor’s possession, or in the possession of someone else for whom he acts
    3. Non-deadly force is immediately necessary.
  • (Broader than CL) Can use non-deadly force to recapture property or re-enter land if:
    1. He believes that he or the person for whom he is acting was unlawfully dispossessed of the property
    2. And either:
      1. The force is used immediately after dispossession, or
      2. Even if it is not immediate, he believes that the other person has no claim or right to possession of the property (can’t re-enter land unless actor also believes that it would constitute an exceptional hardship to delay re-entry until he can obtain a court order.
  • Use of non-deadly force not permissible when:
    1. The force is not immediately necessary unless the defender first requests desistance by the interfering party.
    2. The actor knows that to do so would expose the trespasser to a substantial risk of serious bodily injury
  • Use of deadly force is not justified unless actor believes that person is trying to unlawful dispossess him of his dwelling or is preventing a serious property crime
    1. Person is attempting to commit arson, burglary, robbery or other felonious intent and either has employed or threatened deadly force against or in presence of actor or use of non-deadly force to prevent commission of crime would expose actor or other bystander to substantial danger of serious bodily harm
  • You can use a device to protect property only if the device is not designed to cause of known to create a substantial risk of causing death or serious bodily harm and use to protect property is reasonable under circumstances as actor believes them to be and device is one customarily used for purpose or reasonable care is taken to make known to possible intruders that it is used


MPC 3.06 – Common law Defense of Property

  1. Common law defense is broader than self-defense. The habitation defense permits use of force disproportional to the physical harm threatened.
  2. Self-defense is not triggered until physical harm to the dweller is imminent. The defense f property begins when entry of the dwelling is imminent, which may be well before the dweller’s physical well-being is in imminent jeopardy.
  3. Two approaches: Middle & Narrow:
    1. Narrow – deadly force is impermissible if the occupant knows or should know that the intruder only intends to commit a minor battery. Also, the resident may not use deadly force if he knows or should know that the intruder’s purpose is to commit a nonforcible felony, such as larceny. Thus, deadly force is justified if her reasonably believes that:
      1. The other person intends an unlawful and imminent entry of dwelling;
      2. The intruder intends to commit a forcible felony therein or to kill or seriously injure an occupant; and
      3. Such force is necessary to prevent the intrusion.
    2. Middle: A person may use deadly force if her reasonably believes that:
      1. The other person intends an unlawful and imminent entry of dwelling
      2. The intruder intends to injure him or another occupant, or to commit a felony therein; and
      3. Deadly force is necessary to repel the intrusion.
  4. A mechanical device may be used where the intrusion is such that the person were he present would be justified in taking the life or inflicting the bodily harm with his own hands.
  • MPC 3.07 – Law Enforcement
  • Authority to arrest: use of force justified if actor is making or assisting making an arrest and believes force is immediately necessary to effectuate arrest
  • Non-deadly force justified when:
    1. Another person is about to commit suicide, inflict serious bodily injury, damage to or loss of property, or a breach of the peace; and
    2. The force is immediately necessary to prevent commission of the act.
  • Use of deadly force not allowed unless arrest is for a felony where the person believes that:
    1. There is a substantial risk that the suspect will cause death or serious bodily injury to another unless apprehended
    2. And that use of deadly force presents no substantial risk of injury to bystanders.
  • Use of force for arrest is justified if the actor:
    1. Believes that force is immediately necessary to effectuate a lawful arrest or to prevent escape
    2. Makes known to such other person the purpose of the arrest
    3. Or believes that such other person understands the purpose of the arrest or that notice cannot reason ably be provided.
    4. The actor believes that the use of deadly force creates no substantial risk of harm to innocent bystanders
    5. Either the actor believes that the crime included the use or threatened use of deadly force or believes that a substantial risk exists that the suspect will kill pr seriously harm another if her arrest is delayed.
  • Use of deadly force for arrest is justified if the actor:
    1. Is a police officer or an individual assisting a police officer
    2. The arrest is for a felony
    3. All requirements for use of force are met
  • Defenses: mistakes-of-law: warrant turns out to be ineffective, not guilty for trying to arrest &/or thinks authorized to help public official & public official turns out to be wrong.


MPC 3.07 – Common Law, Law Enforcement

  1. Citizens can make arrests to either before or after crime
  2. Can never use deadly force for a misdemeanor but ok for felonies if
    1. The suspect committed a forcible or nonforcible felony
    2. Such force is necessary to make the arrest or to prevent the suspect from escaping
  3. Cops can use deadly force on fleeing criminals if they think they would be a danger if not arrested
  4. Prohibits use of deadly force to effectuate arrest unless there is probable cause that you are threatened or others are threatened and the force is necessary to make arrest or prevent escape
  5. Would not be able to use deadly force if unarmed or had fake gun
  6. It was OK to shoot if they were warned


MPC 4.01 – Insanity

  • Version of the M’Naghten rule
  • Person is not responsible for criminal conduct if at the time of conduct, as a result of a mental disease or defect, she lacked substantial capacity to:
    • Appreciate the criminality or wrongness of her conduct or
    • To conform her conduct to the requirements of the law (irresistible urge)
  • Basically he can be acquitted if he shows either that he didn’t know conduct was wrong or he couldn’t control conduct


MPC 4.01 – Insanity & Mental Disturbances


  • This is an excuse, along with intoxication and duress
  • Tests for insanity
  • M’Naghten rule
    • Person is insane if at time of her act, she was laboring under a defect of reason, arising from a disease of the mind, that she did not know the nature and the quality of the act she was doing, or if she did know it, she did not know she was doing was wrong.
    • D is sane if she commits an offense that she knows society will condemn, even if she personally is convinced her conduct is morally proper.
    • Most courts hold that they would satisfy this if she did not understand the physical nature and consequences of the act
    • D should be convicted unless his impairment caused him to believe his action was legally permissible
    • Criticism is that is so limited that it permits conviction of some impaired person who because of their illness could not avoid committing crimes and thus are not morally blameworthy
  • Irresistible impulse test
    • D is entitled to acquittal if commission of the crime was caused by an irresistible impulse that overcame his will to avoid the crime
  • Durham standard
    • Acquittal of D if evidence showed that crime was product of impairment D had at the time
  • Federal statutory definition
    • Person is excused if they prove by clear and convincing evidence that at the time of offense, as a result of a severe mental disease or defect, she was unable to appreciate the nature and the quality of her conduct or the wrongfulness of her conduct
  • Person who is acquitted on insanity is usually automatically committed without a hearing
  • They may be detained as long as she is both mentally ill and dangerous to herself or others, when she fails to meet both of these she must be released
  • People who weigh their own interests above everyone else and lacks empathy completely is a sociopath but not insane under MPC
  • They know that what they are doing is wrong, but the word wrong to them does not have the same kind of emotional resonance that it does to most people
  • They just know people will get mad at them if they do it, but they don’t understand why wrongness is a reason not to do it
  • Punishment does deter sociopaths, otherwise they would have no incentive not to act


MPC 4.02 Mental Disturbances

  • Evidence that the D suffered from a mental disease or defect at the time of his conduct is admissible if it is relevant to prove that he lacked a mental state that is an element of the charged offense.
  • Homicide that would otherwise constitute murder is manslaughter if it is committed as the result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.
    • Determined from viewpoint of person in actor’s situation. No whether there was a reasonable explanation or excuse but whether there was a reasonable explanation or excuse, based on D’s psychological characteristics at time of crime.
  • Codifies & expands sudden heat of passion doctrine & permits but doesn’t require courts to recognize a partial responsibility defense.


MPC 5.01 – Attempt

  • 5.01(a)(b)(c) define elements of attempt
  • 2 elements
    • Purpose to commit the target offense
    • Conduct constituting a substantial step toward the commission of the target offense
  • 1 (a) and 1 (b) refer to completed attempts (result crimes & conduct crimes)
  • Person is guilty of attempt if, acting with the kind of culpability otherwise required for the commission of the crime he :
  • Purposely engaged in conduct that would constitute the crime if the attendant circumstances were as he believes them to be or
    • You cannot abandon these since they are conduct crimes
    • Circumstances as they believed them to be applies to fact and not law
  • When it is result crime, does or omits to do anything with purpose of causing or with the belief that it will cause a certain result without further conduct on his part
    • You can abandon these if you can still intercept before harm is done, however if you pull the trigger you cannot still abandon
    • Attempt is complete when you believe it is out of your control
  • 1 c is incomplete attempt
  • Person is guilty of attempt if, acting with the kind of culpability otherwise required for the commission of the crime he purposely does or omits to do something that under the circumstances he believes them to be, is an act or omission constituting a substantial step in a course of conduct planning to culminate in his commission of the crime
  • Mens rea – Usually not guilty unless it was her purpose/conscious object, to engage in conduct or to cause the result that would constitute the substantive offense
  • Exceptions
    • Person is guilty of attempt to cause result if believe that result will occur, even if it is not conscious object
    • For conduct crimes, it is enough that actor possesses the degree of culpability required to commit the substantive offense
    • I.e D could be convicted of attempted statutory rape since it is strict liability
  • Actus reus – Substantial step
    • Must strongly corroborate D’s criminal intent
    • Shifts focus from what remains to be done (CL) to what has already been done (MPC)
  • Attempting to aid
  • Under 5.01 (3) person can be convicted of attempt, even though no one else committed or attempted a crime if the purpose was to avoid another in commission of offense and such assistance would have made her an accomplice under the MPC.
  • Impossibility
  • Abolished hybrid legal impossibility
    • Person who intends to commit a crime but fails to consummate it because of circumstance of which person is unaware, is just as dangerous as one who successfully commits crime or who doesn’t complete because of police
    • Usually , unless it is incomplete attempt, corroboration of actor’s criminal purpose is not required
  • Pure legal impossibility is still available
  • Renunciation: All inchoate crimes can be abandoned
  • Person not guilty if
    • She abandons effort to commit crime or prevents it from being committed and
    • Her conduct manifests a complete and voluntary renunciation of her criminal purpose
  • Grading of Crimes – Attempt, solicitation & conspiracy are subject to the same punishment as the offense attempted, solicited or conspired. EXCEPT for felonies of the first degree, they are then charged as felonies of the second degree.


MPC 5.01 – Attempt

Common Law

  1. Attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense and is a specific intent crime
  1. Graded less seriously than the target offense
  2. Mens rea
    1. Actor must intentionally commit the acts that constitute the actus reus of attempt (intentionally perform acts that bring her in proximity to commission of a substantive offense) and she must perform these acts with the specific intention of committing the target crime
  1. Result crime- Person is not guilty of an attempt unless her actions in furtherance of prohibited result are committed with the specific purpose of causing the unlawful result
    1. Must be specific intent so sometimes prosecutor must prove greater culpability than exist in actual crime
  1. Conduct crimes
    1. Actus reus described in terms of conducts rather than results and person should be convicted of attempt as long as person possesses the specific intent to engage in conduct that if performed, constitutes the substantive offense
  1. Attendant circumstances
    1. Ordinary specific intent requirement of attempt law should probably not apply to attendant circumstances
  1. Impossibility
    1. Important question is- Would D’s conduct have been criminal had the facts been as D supposed them to be?
      1. If not, he gets off, otherwise, he is still guilty
    1. Legal impossibility is a defense
      1. The law does not proscribe the goal that D sought to achieve
      1. Person believes they are committing a crime, but they aren’t or if they believes they are committing a crime but it had been repealed by the legislature
      1. D will be acquitted where he commits an act that he thinks is forbidden but is not forbidden
    1. Hybrid legal impossibility
      1. Exists if actor’s goal is illegal, but commission of the crime is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense
      1. IE receiving unstolen property with belief it was stolen or shooting a corpse thinking that it is alive
      1. Most states do not recognize this as defense because actor’s dangerousness is plainly manifested
    1. Factual impossibility is not a defense
      1. This exists when person’s intended end constitutes a crime, but she fails to consummate the offense because of attendant circumstances unknown to her or beyond her control
      1. IE pickpocket putting hand in victim’s empty pocket or shooting an unloaded gun at someone
      1. Inherent factual impossibility may be a defense
      1. Defined as when a reasonable person would view as completely inappropriate to the objective sought
      1. IE trying to sink a battleship with a pop gun
  1. Abandonment
    1. Applies only if D voluntarily and completely renounces her criminal purpose, must be as a result of a change of heart and not because of some circumstance that would just make it more difficult
    1. Usually cannot claim defense if they have committed last act necessary to commit the offense or has already caused serious harm to the victim


MPC 5.01(3) – Conduct Designed to Aid Another in Commission of a Crime

  • A person is legally accountable for conduct of another when acting with kind of culpability sufficient for commission of offense
    • He causes an innocent or irresponsible person to engage in such conduct
      • Innocent instrumentality
    • Accomplice of person in commission of offense
      • With purpose of promoting or facilitating commission of offense, he solicits another person to commit it, aids or agrees or attempts to aid such person in planning or committing it or having legal duty to prevent commission of crime fails to make proper effort to do so
  • When you do something that would make you an accomplice in a crime, you automatically become guilty of attempt of the crime even if there is no crime committed by the party you are aiding or soliciting
    • So can be guilty of a solicitation and an attempt but only going to be punished for one
    • Solicit someone to commit crime, committed crime of solicitation, also guilty of attempting the crime
    • Give aid to someone with purpose of them committing the crime and they do nothing, you are still guilty of an attempt
  • Actus reus is soliciting or agreeing to aid or attempting to aid, etc
  • Abandon the attempt by renouncing the solicitation or the complicity – to abandon under 5.01(3) – go to the section of what you were doing so if you are guilty of solicitation, renounce it by following the section in the MPC
  • In MPC you can attempt to aid in commission of a crime, in common law you must actually aid them to be convicted


MPC 5.02 – Solicitation

  • Person is guilty of solicitation if the actor’s purpose is to promote or facilitate commission of substantive offense and with such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute the crime, attempt to commit it, or would establish the actor’s complicity in its commission or attempted commission
  • For establishing his complicity this refers to the solicitor
    • I.e. A requests B to give aid to C
      • B is not going to be the one carrying out the crime, it does not establish B’s complicity, he may not have the mens rea
      • A has the mens rea and the actus reus for complicity
  • When the crime is carried out, you automatically become an accomplice
  • When you solicit, you are also automatically guilty of an attempt under 5.01 (3) and if the crime is carried out, the actual crime
  • Graded at same level as target offense
  • Renunciation: Person is not guilty if he completely and voluntarily renounces his criminal intent and either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime
  • Must take back the encouragement and if he still thinks other person will commit the crime, he must stop it
  • Sometimes difficult since he planted the idea in other person’s head


MPC 5.02 – Solicitation

MPC v Common law

  • MPC is broader
    • Applies to the solicitation of all crimes
    • Still a solicitation if you solicit someone to commit a crime of which you know to a be a factual impossibility
    • Uncommunicated solicitation is a solicitation under MPC and attempt under common law
    • Relationship of solicitor to solicitee need not be that of accomplice to perpetrator

Common law

  • Specific intent crime – person is not guilty unless he intentionally commits actus reus of the inchoate offense with the specific intent that the other person consummate the solicited crime
  • Impossibility is not defense, even if the crime couldn’t have been committed, if actus reus has been committed and actor believes that crime could be committed, he is guilty
  • Actus reus is when person invites, encourages, etc, no other act has to be committed once the actus reus has been performed
  • The solicitor intends for the solicitee to be the principal in first degree and for him to be principal in the second degree or accessory before the fact, he wants to be in the background as an accomplice to the commission of the crime
  • Solicitation is basis for accomplice liability
    • One who intentionally assists in an offense is by way of accomplice law, guilty of the offense and solicitation is one way of assisting
  • Inchoate scenarios
  • D solicits X to murder V.
    • X kills V. D is guilty of murder via solicitation but will not be punished for solicitation as it merges with murder.
    • X attempts to murder V but fails. D would not be punished for solicitation, as it merges with attempted murder.
    • X agrees with D to do it, but then does nothing else. They are both guilty of conspiracy and solicitation merges into conspiracy.
    • D asks X to do it, X refuses. X is guilty of nothing, D solicitation
  • Comparison
    • Conspiracy
    • You can have conspiracy without solicitation
      • A, intending to kill C, request B’s assistance. If B agrees to help there is conspiracy but no solicitation because A did not request B to perpetrate the offense


MPC 5.03 – Conspiracy

  • MPC focuses on culpability of the single actor – “A person” – only care about culpability of individual, don’t need two people for conspiracy, as in CL
  • Person is guilty of conspiracy with another person to commit a crime if with the purpose of promoting or facilitating its commission he
    • agrees with others that they will engage in conduct that constitutes such a crime or an attempt or solicitation to commit such a crime or
    • agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime
  • Punished at the same level of most serious crime
  • May not be convicted and punished for conspiracy and object unless conspiracy involved commission of additional offenses not yet committed
  • Person is guilty of conspiracy if she
    • agrees to commit an offense,
    • agrees to attempt an offense,
    • agrees to solicit another to commit offense, or
    • agree to aid another in planning or commission of offense
  • Object of agreement must be criminal offense (dif from CL)
  • Must be an overt act by actor or conspirator to be guilty of conspiracy, exception is with felonies of first & second degree
  • Code does not determine what culpability, regarding the attendant circumstances of a substantive offense is required to convict for conspiracy and leave it up to jury
  • Unilateral approach to conspiracy, focuses on culpability of each actor
  • Person guilty of conspiracy knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such a crime
  • Person with multiple criminal objectives is guilty of only one conspiracy if:
    • Objectives are part of the same agreement or
    • Part of a continuous conspiratorial relationship.
  • No defense for impossibility
  • There is affirmative defense for abandonment if conspirator renounces criminal purpose and thwarts the success of the conspiracy in circumstances demonstrating complete and voluntary renunciation of criminal purpose
  • Not guilty if the law does not provide for it or she is the victim of the crime as defined by the Leg.


MPC 5.03 – Conspiracy

Notes on MPC

  • Require culpability otherwise required for the commission of the crime
  • Have to not only have purpose but have the mens rea otherwise required for that crime
  • Purpose to promote or facilitate the actus reus of the crime
    • Then have the mens rea otherwise required for the crime
    • Same as with attempts and other inchoate the crime
    • Still have to have the mens rea to commit the crime, if you have a lesser mens rea, then you can’t conspire to commit it
      • Have to act with a purpose but you only have knowledge
      • This applies to if you are unaware of the circumstances – so purpose to commit rape, turns out you are committing rape of underage person, can’t be charged with conspiracy to rape an underage girl
  • Actus reus: the agreement
  • Can be convicted of both the crime and conspiracy but only punished for crime
  • For the conspirators who do not commit the crime, they are charged with conspiracy
  • General rule is that conspirators are accomplices
  • MPC – conspiracy does not automatically make you an accomplice


Common law

  • Agreement by two or more persons to commit a criminal act or a series of criminal acts or to accomplish a legal act by unlawful means
  • Unlike solicitation and attempt, conspiracy does not merge into attempted or completed offense that was object of conspiracy
  • No physical communication required and every party doesn’t need to know every detail of plan
  • There has to be a shared intent and mutual goal
  • Mens rea
    • Parties must intend to agree and intend that the objects of their agreement be achieved
    • Culpability required for conviction at times must be greater than for conviction of the object of agreement
    • Conspiracy does not require any greater mens rea as to an attendant circumstance then is it substantive offense
  • Conspiracy must be bilateral and both parties must have specific intent to commit the offense, so if one is undercover cop, there can be no conspiracy
  • Out of court statement of a conspirator made by her while participating in the conspiracy may be introduced as evidence against her co conspirators
  • Types of conspiracies
    • Wheel: There is one person or group in center of wheel who transacts illegal dealings with various persons or groups
    • Chain: Several layers of personnel dealing with single subject matter as opposed to specific person
      • Usually business like criminal activities where each person had specialized responsibilities that link together unlawful conduct
      • Involve unlawful plans that cannot succeed unless each link successfully perform her responsibilities in the arrangement
      • The law says that if people in chains know about other chains and if success of chains is in some way interdependent of success of other chains, then you can link the chains
    • Chain-wheel
      • Procedural advantages of single conspiracy
      • Prosecutor can get a choice of venue and bring in case in any place where any single conspiracy act was committed
      • With hearsay evidence, much more admissible evidence, almost anything any of coconspirators say can be attributed to anyone
      • You can be accomplice to every act carried out by coconspirator
  • Objectives of conspiracy
    • Courts look at whether the object of single agreement is to commit one or many crimes, or if there is one agreement and later they meet to discuss further criminal objectives
  • Impossibility
    • Neither factual or legal impossibility is a defense for conspiracy in most courts
  • Abandonment
    • Not a defense, however if they do withdraw, they may avoid liability for subsequent crimes committed in furtherance of conspiracy by con conspirators
    • They must usually communicate withdrawal to each co conspirator
  • Wharton’s rule
    • Agreement by 2 persons to commit an offense that by definition requires the voluntary concerted criminal participation of 2 people cannot be prosecuted as conspiracy.
    • IE Adultery, bigamy incest, offense must be impossible to be committed in absence of agreement
  • Person may not be convicted if her conviction would frustrate legislative purpose



MPC 5.04 – Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy

  • No Wharton’s rule
  • Unless legislature provides otherwise, person may not be prosecuted for conspiracy if she would not be guilty of substantive offense under the law defining the crime or as an accomplice in its commission which would be if she was victim in crime or her conduct was inevitably incident to its commission



Criminal Law – An Overview


  1. Nature of “Criminal Law”
    1. Crime: an act or omission and its accompanying state of mind which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
  1. Theories of Punishment
    1. Utilitarianism (ends justify means; look forward – punishment for social benefit)
      1. Forms of Utilitarianism
        1. Most commonly, it stresses general deterrence. That is, D is punished in order to convince the general community to forego criminal conduct in the future.
        1. Alternative goal is specific (individual) deterrence. D’s punishment is meant to deter future misconduct in two ways:
          1. Incapacitation while in jail
          1. Intimidation upon release
        1. Non-classical variety is rehabilitation (reform). Use the correctional system to reform the wrongdoer rather than to secure compliance through the fear or “bad taste” of punishment.
    1. Retributivism (means justify ends; looks backward & justifies punishment solely on the basis of voluntary commission of a crime)
      1. Basic Principles
        1. Punishment is justified when it is deserved. It is deserved when the wrongdoer freely chooses to violate the rules. The wrongdoer should be punished regardless of if it produces a reduction in crime.
        1. “It is morally fitting that an offender should suffer in proportion to his desert or culpable wrongdoing” (Immanuel Kant).
        1. Free will & must be blamed when they choose to violate society’s mores.
      1. Forms of Retributivism
        1. Assaultive Retributivism (or Public Vengeance or Societal Retaliation): b/c the criminal has harmed society, it is right for society to “hurt him back.”
        1. Protective Retributivism: Punishment is a way of securing a moral balance in society. A criminal is a responsible moral agent and has a right to be punished in proportion to the debt owed.
        1. Victim vindication: punishment is a way to right a wrong.
    1. Denunciation (Expressive Theory)
      1. Hybrid of sophisticated aspects of utilitarianism and the victim vindication form of retribution.
      1. Punishment is justified as a means of expressing society’s condemnation, and the relative seriousness, of a crime.
      1. Denunciation is desirable b/c it’s (all utilitarian):
        1. Educative
        1. Channels community anger away from personal vengeances.
        1. Maintains social cohesion
      1. Retributive in that it is a form of moral condemnation: it serves to stigmatize the offender for his offense & vindicates the victim.

Act utilitarianism: A calculation of whether a particular act, on this immediate occasion, is justified on utilitarian grounds.



Burdens of Proof and Presumptions

PS 1

MPC 1.12 – Burdens of Proof & Presumptions


1. Several variations of a statute making it a criminal offense “to purchase or use marijuana with the belief that it has been illegally imported into the United States.” Approximately 85% of all marijuana in the U.S. has been illegally imported, a fact that is known by over 90% of users.

  • 1st Variation: Belief in illegal importation may be presumed by the trier of fact from proof beyond a reasonable doubt that the defendant knew that the substance was marijuana.
  • Const: permissive presumption. Proved fact beyond reasonable doubt, jury may presume the other connected fact. Presumed fact is more likely than not.
    • Presumed presumptions are very tenuous but const

2nd Variation: Belief in illegal importation must be presumed by the trier of fact upon proof beyond a reasonable doubt that the defendant knew that the substance was marijuana in the absence of evidence to the contrary.

  • Mandatory rebuttable presumption: unconst.
    • What if 100% correlation, prove presumed brd by proving main fact brd
    • But with 95% correlation, presuming another does not necessarily follow.
    • D not allowed to offer evidence to the contrary for presumption

3rd Variation: Belief in illegal importation is to be conclusively presumed by the trier of fact upon proof beyond a reasonable doubt that the defendant knew that the substance was marijuana.”

  • Mandatory irrebuttable presumption (conclusive presumption): unconst.
  • Prove two facts brd, then const, just don’t draw presumption
  • Conclusive presumption just way of rewriting the rule

4th Variation: The statute omits the phrase “with the belief that it has been illegally imported into the United States” and provides instead: “It shall be an affirmative defense that defendant did not believe that the marijuana was illegally imported into the United States.”

  • Const b/c take element out of the offense & shift to defense & now ok to put burden of proof on D b/c no longer part of offense.
  • Rather be a D in state with 4th or 2nd: should be in 2nd. 4th prove more likely than not but in 2nd you just have to rebut the presumption. BUT, 2nd is unconst & 4th const.
    • Anomalies come about b/c SC polices burden of proof but does not police the elements.
  • Prosecutor has to prove offense b4 you have to put on any defense
  • Mandatory element of crime requires a voluntary act

2. Criminal offense “to operate a motor vehicle recklessly.” But, affirmative defense, a “justification” that in violating the law, D was choosing the lesser of two evils. The D must prove by a preponderance of evidence.

D charged with operating motor vehicle recklessly for driving 55 in a 35 zone but was driving over speed limit because he believed it was necessary to get his passenger, who he thought was having a heart attack, to the hospital asap. The issue of whether D actually believed the passenger was in such danger and was speeding for that reason must go to the jury. D argues that the jury must be instructed that to convict, they must find beyond a reasonable doubt that he didn’t have this belief. The prosecutor argues that the jury must be instructed that to acquit, they must find by a preponderance of the evidence that he did have this belief.

  • Prosecutor has to prove recklessness – substantial & unjustifiable risk. To prove recklessness, prove defendant was acting in the face of an unjustifiable risk. If sick passenger, would be part of what D then would have deemed “reckless.”
  • Overlapping element: justification (defense) or lack thereof (prosecution) is an overlapping element, then prosecutor’s burden. If prosecutor fails to prove D was ignoring unjustifiable risk, then P hasn’t claimed recklessness & no case! Act with justification for imposing risk, then not reckless!

Actus Reus

PS 2

MPC 2.01 -Voluntary Act/Actus Reus


1. D killed V with a knife, but says its b/c of uncontrollable bodily movement disorder that hit her right before she went to plunge down the knife.

  • Whether there was a voluntary act of any sort and if D is culpable
  • Didn’t know he had epilepsy – wouldn’t convict
  • Knows he has epilepsy – getting in the car & driving was voluntary – convict
  • Look for a culpable act
    • Intended to kill someone by St Vitas Dance then kill them
    • Intended to kill someone then suddenly St Vitas Dance revs up
  • Relationship between voluntary act & culpability

2. Nancy doesn’t get rid of drugs left at her house until Ron returns that night. Nancy arrested for “possession of narcotics” and Ron for “possession of narcotics by an ex-public official.”

  • Model Penal Code – two types of possession
    • Holding something
    • Aware of your control for a sufficient period of time to terminate your possession – form of control w/o actually grasping
      • Makes you guilty for not relinquishing for a certain period of time.
  • Possession is not a clear concept
  • In possession but you fail to dispossess in a timely manner
  • Possession is not solely status crime – it’s a status combined with an omission – status of being in control with not relinquishing – so violation of Robinson
  • Ron’s an ex-public official is a status that cannot be changed. Can convict of crime plus status, just can’t convict for status alone.
  • Robinson is a very limited case: solely being something cannot be a crime, that’s it


3. Baker convicted of speeding, says its b/c his cruise control got stuck on. In order to convict, prosecution doesn’t need to prove that D intended to speed or was reckless or negligent about whether he was speeding. But there must be proof that D speeding met the voluntary act requirement.

  • Strict liability crime, no culpability needed
  • Do have to prove that speeding was a voluntary act
  • When do you start the story? All about time-framing
  • Normally, find a culpable act to start telling the beginning of a crime story
    • Look for voluntary act – that would be the culpable act
  • But when there is no culpability with strict liability, then no way to know when to begin the story
  • No compass to tell us where to pick the act
  • Don’t require culpability but do require a voluntary act
  • Always find voluntary act if you go far enough back


4. Patti kidnapped and brainwashed & accompanied gang on crimes, while armed. Now on trial for the crimes she participated in, and she introduces expert testimony to the effect that people subjected to the kind of treatment she received become “brainwashed.”

  • Involuntary acts for 2.01
  • Why hypnosis in MPC? States of altered consciousness are considered involuntary in
  • But what about brainwashing?
  • Intensive course of re-socialization for Hearst
  • But where do you draw the line? Someone could say their parents were criminals and that was their socialization. That couldn’t be an excuse
  • Ct convicted Hearst, did not think brainwashing was an excuse
  • Doesn’t care where you got your values just how you acted on them
  • Permissive presumption – prosecution aided by. D gives not credible evidence that she was brainwashed, jury may decide she wasn’t
  • Burden of production is on the D


5. D on flight from Bahamas to Europe with a concealed gun. While on board, D became unruly. The pilot flew and landed the plane at JFK. D arrested for possession for being in violation of NY possession laws. Was it voluntary act?

  • Not guilty because he did not plan on going to NY and had no idea he would be taken there, it was not a voluntary act to break NY statute






MPC 2.01 – Omissions


1. A, B, C, D, E, F, and G watch V drown in a swimming pool. A had negligently run wildly around the edge of the pool, bumped into B, who fell into V, knocking him into the pool. C was V’s lover and roommate, and a good swimmer. D was a very strong swimmer. It was the fact that D was at poolside that induced V, who could not swim and was afraid of swimming pools, to get close to the pool’s edge. E was the lifeguard on duty at the pool, though V didn’t know the pool had a lifeguard. F, a bystander in the water with a life preserver, tossed the preserver to V, then reconsidered and pulled it out of V’s hands. Despite his having the life preserver, F could swim well enough to reach the side without it. G was another bystander who would have jumped in and saved V but thought that either D would do so or that F would save V with the life preserver.

  1. A character
    1. Guilt will depend on knowing and not knowing he knocked him in the pool. If he knew – knowing homicide, if he didn’t negligent homicide.
    2. Duty to rescue is never absolute
    3. Have to be able to answer yes to all except column #2 to say A committed a knowing homicide by omission
    4. If not all of these – then negligent homicide. If V drowns, A will be guilty AT LEAST of negligent homicide
    5. Suppose yes across the board but one of those beliefs is incorrect – he isn’t the one who knocked him in, or he isn’t drowning, etc. He doesn’t rescue him – would be attempted homicide
  2. B character – non-culpable risk creator
    1. Still physically a cause
    1. Does culpability matter?
    1. No base-level guilt – above schema is the same – just no initial guilt like A
    1. Could be guilty of negligent homicide by negligently answering no to one of the criteria
  1. C Character
    1. If status relationship – don’t have to know that gives you a duty to rescue, it’s just the law
      1. Still have to answer yes to all three criteria above
      1. Factual Predicate would be being the parent
      1. Either knowing homicide, or negligent homicide or nothing
    1. But is this a status that gives rise to a duty to rescue?
      1. Move from something formal like husband/wife to other statuses that are close to that, it gets vague
    1. Could be attempted murder by omission if you think it’s your kid and then it’s not
  1. D character
    1. No implied contract to rescue V – non-culpable cause/risk
    1. Category of creating a peril
  1. E character
    1. Contractual obligation as a lifeguard
    1. Not the contract that is the duty, it’s by contracting the lifeguard that the party host doesn’t have to get another lifeguard.
      1. Gardener ex: no one knows of contract
      1. Imperiling by contracting – precludes getting another lifeguard
    1. Duty of contract is just a duty of preventing peril
    1. Not the contract, it’s what the contract does – it induces reliance to detriment of imperiled party
  1. F character
    1. Imperiling of victim by making them worse off – now others won’t help him b/c they thought F was
    1. Originally provided life preserver, then took it away – death by omission or commission
    1. But no duty to give life preserver in first place
    1. If F hadn’t been there, V still would have died. So not an act, but omission.
  1. G character
    1. Act: distinction b/w baseline in both. If F removed the life vest, then F acted, V dies.
    1. Omission: what you’re not doing – not rescuing – is the omission. Take F out of picture, V dies.
    1. If F hadn’t been there, V still would have died. So not an act, but omission. Same with G


Mens rea

PS 4 & 5


MPC 2.02 – General Requirements of Culpability/Mens Rea

  1. On the face of the offense definition, the elements of “tampering with records” are:
    1. No privilege to do so (“Knowing ” is expressly required)
    1. Falsifies, etc (What culpability level applies?)
    1. A writing record (What culpability level applies?)
    1. (There is no requirement that anyone actually be deceived) (“Purpose” to deceive is required)
  1. Under 2224.4 & 2.02(3), would an actor be liable if he:
    1. Removes a record believing that he probably has the authority (privilege) to do so? “Believing he probably has the authority (privilege ) suggests that he is aware of a risk that he does not have the authority (privilege). But knowing is required as to “no privilege,” thus, the D is not liable under this section because he is only reckless as to lacking the privilege.

2. As a joke on a fellow student also working in the registrar’s office, changes the student’s official university grade card to an “F” in criminal law, and shows it to the student? The “purpose to deceive” requirement would not be satisfied, thus no liability.

3. Surreptitiously changes a student’s official grade to a “B” because he honestly but negligently believes that it had been incorrectly recorded as an “A”? The D is negligent as to whether his action “falsifies” the record. While no culpability requirement is provided as to “falsifies,” a requirement of recklessness will be read in 2.02(3). The D’s negligence will not satisfy this recklessness requirement.

Tampering with Records: using 2.02(4), would the D be liable for violation of 224.4 under the earlier hypos & also for the following hypos?

1. Same result under hypos a & b. While on its face 2.02(4) assumes that offense definitions will have only one stated culpability requirement, rather than the two states requirement found in 224.4, it seems likely that each of the two requirements are at least intended to control within the grammatical clause in which each appears. Thus, knowing is still required as to “no privilege,” and a “purpose to deceive” is still required. The requirements are not satisfied under hypos a & b, respectively. It is unclear under 2.02(4), however, whether the culpability requirement applicable to “falsifies” is “knowing” or “purposeful.” Both of these terms appear in 224.4. Under the facts of © however, it does not matter. The D’s negligent mistake will not suffice for liability under either requirement.


2. The D surreptitiously changes another student’s official grade from an A to a B, honestly believing that the A grade was probably incorrect but being aware of a chance that it might be correct. The D may be held to be reckless as to whether his conduct “falsifies” the record. Thus, if 2.02(4), which requires either knowing or purposeful as to falsifying, controls, there is no liability. If 2.02(3) is relied upon, the D’s recklessness would be sufficient; although it would suffice only if (a) falsifies is judged a conduct element and recklessness is interpreted as being applicable to a conduct element, or (b) falsifies is judged to be a combined conduct/result element (engaged in conduct by which he causes the record to be made false), so that the definition of recklessness can be applied to the result of “Causing the record to be made false.” If “falsifies” is judged a conduct element, and “knowing” is the lowest culpability defined as to conduct, “knowing” might be required and recklessness would be insufficient.


3. To earn money for tuition, the D surreptitiously changes another student’s official grade from a “D” to an “A.” He has great remorse over his act but does not reveal the change because he hopes that the change will be discovered by others before any official transcripts are prepared. Recall that it is unclear whether 2.02(4) would apply the higher (ie purposeful) or the lower (knowing) of the two stated culpability terms. The D certainly knows that his conduct will falsify the record. Is he purposeful as to such falsification? That is unclear. He may not desire the falsification, as some modern statutes define “purposeful,” but the falsification may be his conscious object (as the MPC requires), depending on how the latter phrase is interpreted. Thus, the result will depend on the application given to 2.02(4) and the definition given “purposeful” ( and conscious object). Section 2.02(3) would require only recklessness as to the falsification (or, possibly, “knowing,” as noted in the answer to (e) supra). Thus, the D would be clearly liable.


2. The Jackal will get paid to murder DeGaulle. The Jackal is reluctant to take much of a chance of getting caught, so he says that he’ll either (a) drop a banana peel on a sidewalk that D sometimes walks on, or (b) take a shot from the top of the Eiffel Tower in the direction of D’s office. Both acts have a 1 in 1,000,000 chance of killing D. Jackal does it & he is killed. Is he guilty under MPC of “purposely” killing D?

  • Refers to MPC “purposely-” something he was trying to do
  • 2.02(2)(a)(1) – conscious desire to cause death – it’s his purpose b/c that’s how he gets his reward
  • If President dies, it was his purpose – purposeful homicide
  • Doesn’t matter how probable it is – no probability floor on purposefully bringing about a result
  • If your conscious object (rarely are most criminal purposes ultimate. Nothing that says the purpose has to be your ultimate purpose. Conscious object can still be if it’s for a further purpose) was result, even though odds were heavily against, you cannot say you didn’t do it purposely. You still tried to bring about result
  • Anything that happens was then 100% certain
  • Probabilities are relevant to the info you possess (lotto ex)
  • No matter how low the probability – if conscious object to bring about result, then if it does happen, he brought it about purposely
  • Knowledge & purpose are almost always together when discussing conduct engaged in. Different with results. Couldn’t say Jackal killed Pres knowingly but it was purposely.


3. Man kills another man believing the latter to be an evil spirit. MPC mental state?

  • Metaphysical mistake
  • Not knowing homicide – what is it to “know?”


4. Frankenstein wants $1,000,000 reward for removing heart w/o person dying so tries to remove heart from a patient, hoping to win the prize, but also believing that the experiment is justified in the cause of advancing medical knowledge. But patient dies, which he was pretty certain would happen. What type of homicide?

  • Knowing (practically certain) but not purposeful – didn’t want to kill patient just figured it would happen
    1. Recklessly – actor acts in conscious disregard of substantial & unjustifiable risk but goes ahead & acts in the face of it
      1. Substantial & unjustifiable is a question of law, not for D to decide.
      2. Up to the “reasonable, law-abiding person”
      3. Only has to be conscious of the risk he is taking. Whether sub. & unjust. is up to the law
      4. Consciously disregarding the risk. If you don’t see the risk, not reckless, then negligence
  • Knowing, reckless on continuum.
    1. Knowing is more serious state than reckless but since on continuum could still be considered both
  • Bop?
    1. If reckless – then on prosecution. Lack of justification is part of mens rea for recklessness. Recklessness is unjustified. Absence of justification to prove recklessness.
    2. Knowingly – once knowingly, bop is on the defense.
      1. Does justification matter? In some jurisdictions, justification would be an affirmative defense.
      2. Model Penal Code: absence of justification an element of the prosecutor’s case in all cases
        1. Justifications are not defenses but negative elements of prosecutor’s case
        2. Burden is on prosecutor to negate if knowingly acted in self-defense though. Permissive presumption that unless produce evidence you were acting in self-defense, then you weren’t
        3. Negative elements of the crime
      3. In cases with knowledge, depends on which jurisdiction you’re in – either affirmative defense or on prosecution (Model Penal Code for pros.)


5. T and L agree that if the next guys they pick up turn out to be jerks, they will go on a robbery spree in order to be independent of men. Guilty of conspiracy to commit robbery? Compare to R, who enters museum to admire the collection, but will steal Andy Warhol painting if he sees one, which he thinks is highly unlikely. Guilty of burglary? Compare to A, who points a gun at S and says, “Your money or your life,” intending to shoot him if he fails to give her his money, but hoping and believing that she’ll get the money. Guilty of “assault with intent to rob” or “assault with intent to kill”?

  • The Model Penal Code 2.02(6) states, “when a particular purpose is an element of an offense, the element is established although such purpose is conditional.” (Model Penal Code 2.02(6)).
  • Just b/c purpose was conditional, doesn’t change the fact that it is a criminal purpose
  • As long as your intent is to commit the crime on a certain condition, it doesn’t matter how likely you believe the condition to be.
    1. Purpose to kill on the condition even if extremely unlikely, still purpose to kill.
    2. MPC doesn’t set any floor on how probable condition has to be. As long as it is greater than 0, then can be guilty


6. Has defendant in either case “knowingly” committed actus reus?

Case 1: Statute: “It is illegal to smuggle A, B, C, aka ‘heroin.’”

Defendant believes:

(1) He has X, Y, Z.

(2) It is illegal to smuggle X, Y, Z.

(3) The street name for X, Y, Z is “heroin.”

In fact: Defendant has A, B, C.

Case 2: Statute: “It is illegal to smuggle heroin, which is chemically A, B, C.”

Defendant believes:

(1) He has X, Y, Z.

(2) X, Y, Z is heroin.

(3) It is illegal to smuggle heroin (X, Y, Z).

In fact: Defendant has A, B, C.

  • Can’t be charged with knowingly violating statute b/c he doesn’t know he has ABC. He thinks he has XYZ. Even though he has the substance, he doesn’t knowingly have it
  • Statute 2: guilty of knowing actus reus. Knows he is smuggling heroin, & knowingly smuggles heroin even if he thinks its chemical name is different.
  • It can be quite consequential how you word the statute- one emphasizes street name, one emphasizes chemical substance.


7. Dr. Mad drops a bowling ball off building, believing it to be practically certain that the ball will kill one or more people below, though that is not his aim. He believes the risk is justified in the name of science. Dr. Dumb assists but is unaware that the ball might strike anyone. Ball hurts no one.

  • Dr. Mad is guilty of recklessness but not mutually exclusive. Can have knowledge and recklessness or also purpose
  • Imp questions to ask:
    • What is the risk D thinks he is taking or was he aware of it? What are the reasons for taking the risk?- factual questions.
    • Whether it is substantial/unjustifiable – whether he is reckless? – legal questions.
  • The actual risk was 0 b/c the ball didn’t hit anyone
  • Actual risk will always be one or zero – either someone died or they didn’t
  • Substantial v. unjustifiable
    • Substantial is merely relative to unjustifiable
    • 100 chambers in a gun vs. 5 chambers with 1 bullet & Russian Roulette – not the same substantial risk but still unjustifiable so still “substantial & unjustifiable” & “reckless”
      • Reason does not justify risk
      • Unjustifiable does all the work
    • Ok if odds are even higher with driving b/c justifiable risk – even if substantial factor is higher
    • Leave substantial out?
  • Dr. Dumb is guilty of negligence b/c he should have estimated risk to be higher even though actual risk was lower (reasonable person would have estimated risk to be higher)


8. Ralph thinks he’s driving at 80 MPH, which he believes is quite risky but keeps speed to get home. But actually only driving 55 MPH, a safe speed under the conditions. Guilty of the crime of “reckless driving”? “Attempted reckless driving”? If he has an accident and kills someone, is he guilty of “reckless homicide”

  • Reckless driving & homicide b/c he thinks the risk is high
  • Attempting to speed & failing but still thinks he is
  • Risk is just a perception and he thinks it’s a risk
  • Can’t attempt to be reckless
  • Reckless when you act in the face of the risk you perceive
  • Acted in the face of what he felt was a high risk; his speed is immaterial to the question


9. F goes to kill V with a gun and then accidentally gets in an accident with him & kills him. Guilty of what type of homicide.

  • Reckless homicide – her intent was still to go kill someone, regardless of how or when it happened
  • Purposeful homicide if 1% chance that Johnny won’t be home but out on road and she might also kill Johnny while out driving to his place
  • See how broad a concept recklessness can be. No magic point of substantiality & unjustifiably does all the work. Unjustifiable to drive car in pursuit of murder, not substantial risk of this happening, but unjustified reason for driving

10. Jon lies in wait, intending to shoot June. He sees a person whom he takes to be June and fires. Culpability

(a) if the person he sees and kills turns out to be Joan rather than June. Purposeful Homicide: mistaken identity of victim is completely immaterial

(b) if the person he kills is not the person he sees but is rather someone (Jan) in the bushes behind her whom Jon didn’t see or have any reason to know was there. Purposeful Homicide: transferred intent – still intended to kill a person

  • Slightly different theories but same result


11. Cal unknowingly smuggles drugs but thinks he smuggling something illegal currency. What result?

  • Reckless & knows the risk to be there
  • If reasons for willful ignorance were so that he wouldn’t know – in that case it would be knowing smuggling

Strict Liability

PS 6


MPC 2.05 – Strict Liability


1. 21 year old has sex with 15 year old but girl said she was 19. Statute punishes any man over the age of 18 who has sexual with a girl under the age of 16. What are the arguments for and against making the age of the girl a matter of “strict liability”? Explain what “strict liability” means in this context.

  • Actus reus:
    • having sex
    • w/ underage girl – no culpability on this element – he still did it.
  • Easier to prove she was underage than to prove that she was culpable
  • A lot of guilty people would get acquitted b/c hard to prove culpability of D – said he thought she was 19. How do you prove that beyond a reasonable doubt? If just remove culpability and put to strict liability, then we eliminate burden
    • Proving culpability is so difficult that since most who do it are culpable, just punish them
  • Sex with an underage girl as basis of a conclusive presumption but just get rid of element and call it strict liability


2. D pharmacist accused of selling a mislabeled drug. D wishes to present evidence about the care she took to avoid mislabeling. Should that evidence be material?

  • Yes b/c result of having this never happen would be too severe:
  • Culpability is immaterial
  • Hire more people for job, cost of drugs go up
  • Unreasonable to provide more care
  • Don’t want to stamp out all accidents but do have the right number of accidents
  • Every good thing comes at a cost of other good things
  • Taking too much care sacrifices other good things


3. Burglarizing any building that is used as a place of habitation is a more serious crime than simple burglary. D burglarizes tavern after it closes, not realizing that V lives in a room in the rear of the tavern. Should he be convicted of simple burglary or the more serious type of burglary?

  • He was reckless in face of risk but only guilty of lower crime
  • Risk you take when you commit crime A, risk should already be built in if you actually commit crime B – already built into simple burglary


4. D drives new car off the lot and suddenly the accelerator sticks, causing accident. Convicted of sl “unsafe operation of a motor vehicle.”

  • Strict liability crime b/c it doesn’t require culpability but that one be a voluntary actor
  • In this case, involuntary actor
    • Don’t know how to pick time at which story of the crime begins
    • Voluntary act to press accelerator, but after that, involuntary actor
  • SL: aren’t looking for a culpable act so don’t know which one to start story for
  • If looking for a culpable act: look at if pressing accelerator was a culpable act

Mistakes of Fact and Law

PS 7 & 8


MPC 2.04 – Ignorance or Mistake


1. Dan, using a bow and arrow, kills Polly, believing her to be a swan. Assume:

1st degree homicide = knowingly or purposely killing a human being = life imprisonment

2nd degree homicide = reckless homicide = one year imprisonment

3rd degree homicide = negligent homicide = one-half year imprisonment

Swanicide = killing a swan = one year imprisonment

Attempted swanicide = attempted killing of a swan = one-half year imprisonment

Under Model Penal Code, § 2.04, of what should Dan be convicted?

  • Reckless homicide: risk you take is already built into the culpability requirement for that crime
  • Have homicide, D says thought it was swanicide, admits to another crime – swanicide, which gets one year. Can’t charge him with swanicide b/c no dead swan. However, look at grades of homicide & look for grade that carries the same punishment as swanicide – that would be reckless homicide – reduce it down to grade & degree of offense that corresponds with the one he would have been guilty of had the conditions been the way he thought they were.

2. D from Baghdad, committed sodomy while in US in 1836.  In Baghdad, no criminal offense & claimed that he was ignorant of the fact that sodomy was a criminal offense under US law. What result?

  • Only if a law is neither published nor made reasonably available, do you have a claim that ignorance of the law is a defense
  • Ignorance of law, no defense
  • Acts were wrong and should have been known to be wrong whether or not you knew if they were illegal
    1. MPC 2.04 3a– tiny escape hatch
    1. He did not have knowledge of the law but they had been published
    1. Even though he is from different country, the fact that it is published would likely mean he would be guilty under MPC, even if it’s not reasonably available
    1. Under Constitution, it would violate due process if there was no fair notice
    1. Only when it is such an obscure law that you could not expect an ordinary law abiding citizen to know about it and nothing in the nature of the act would seem criminal, like you cannot water the lawn on Mondays (Malun prohibitum)
    1. This is rare case, very difficult to get off based on ignorance of law
      1. Otherwise you are encouraging ignorance of the law
      1. In tension with fact that it is so hard to know all the laws, penal codes are huge


3.  D is uncertain whether breaking into the office of a physician and looking through her files, which he had been asked to do for the Gov, is legal under some national security exception. Everyone says ok.

D then performs the break-in and is arrested b/c it was not legal under any national security exception, though some break-ins are.  At his trial he pleads mistake of law and offers proof of the above facts. Entitled to the mistake of law defense?

  • Probably could not get off under MPC exception since this was not an official interpretation of attorney general, usually that would have to be written and this was informal over drinks


6.  L doesn’t declare French Lace b/c she mistakenly believed that it wasn’t subject to duty but it actually is. The Customs offense proscribes “knowingly failing to declare any dutiable item.”  How must this be construed to afford Lady Eldon a defense of mistake of law?  Who should bear the burden of proving or disproving the mistake?

  • 2.04(1)(a): If it’s “It’s a crime knowingly to fail to declare a dutiable item.” (List on another page) She doesn’t know French Lace is on the list
  • In , “It’s a crime to knowingly fail to declare French lace, Eiffel towers, etc, etc,” she is just ignorant of the law
  • To get her off you have to view knowingly as modifying the whole phrase
  • If you just view it as knowingly failing to declare, she would be guilty since she knew she had item and still failed to declare. Not knowing the law is not an excuse
  • Prosecution should bear the burden of proving it wasn’t a mistake beyond reasonable doubt since it is an element of the crime
  • Makes a different on how the statute is written


7.  T caught smuggling marijuana, a crime, but thought he was smuggling currency, which is not a crime but he thought it was.  What result? What would you need to know about the marijuana smuggling statute?  What if T knew he was carrying marijuana but thought he was in Alaska, where that is legal, when in fact he was across the border in Canada, where it was not?

  • Two false beliefs = knowingly smuggling contraband
  • Probably knowing smuggling of marijuana since he was aware of the substantial and unjustifiable risk that he was taking since he was sure he was doing something illegal
  • Can’t use 2.04(2) because crime he thought he was committing wasn’t really a crime.
  • Can’t say knowledge because he thought it was currency
  • Can two mistakes add up to knowingly?
  • If statute required knowingly or purposely, he could not be convicted
  • Thought he was in Alaska, not Canada: Mistake of fact: doesn’t negate an element of the crime: doesn’t matter if he had a mistake where he was, this is strict liability, he would be guilty



PS 9

MPC 2.03 – Causation


1. 100 rifles, only one bullet, each person has to shoot gun at V to be in cult & don’t know which one has the bullet. Impossible to tell whose bullet killed V. Should we prosecute all for “attempted homicide” or “reckless endangerment” and none for “homicide,” or should we prosecute all for “homicide,” and if so, for knowing homicide or for reckless homicide? How should the causation doctrine work here?

  • Have to believe you are bringing about the result for attempted homicide
  • Intent was just to join the cult, not to necessarily kill someone, so no purpose or knowledge
  • Prosecuted for reckless endangerment
  • 1/100 is enough of a risk given their reasons – their reasons don’t justify the risk
  • What if knew the one person who had the bullet
  • Should results matter? Still punish others with reckless endangerment
  • Reckless homicide would have to prove beyond a reasonable doubt which bullet killed the victim
  • If all thought they had bullets – would be attempted homicide under MPC
  • Suppose organizers were lying – no victim behind the screen
    • Test to see if they would pull the trigger
    • Still reckless endangerment: acting in face of risk you perceive, not risk God perceives
    • They are still being reckless


2. A tampers with B’s brakes, hoping it will lead to someone being killed, B drives car & sees V & decides not to apply the brakes so as to kill V. Had A hit the brakes, they wouldn’t have worked. What result?

  • Mental state of purpose – purposeful homicide
  • A for purposeful homicide
  • B for attempted homicide
  • At least charge both with attempted murder
  • No temporal gap here
  • Both causal chains result in V’s death at exactly the same moment in time
  • Two sufficient causes of V’s death when & as it happened
  • Two sufficient causes of the same event, law relaxes “but for” causation test – get them both for causing the death


3. An article in the N.Y. Times, Feb. 7, 1968, stated: D killed herself rather than make her dog pay for her night with a married man. Were the police correct that Mr. and Mrs. D could not be charged with causing D’s death? Compare to paparazzi pursuing a celebrity whose car is traveling dangerously fast in order to flee them and crashes, killing the celebrity. And compare these cases to that of a drag racer whose competitor crashes into an oncoming car, killing both drivers.

  • Causal chain problem: Defendant acts:
  • Culpable choices (predictable & unusual)
    • Human choices
    • Result
  • Non-culpable (predictable & unusual)
    • Human Choices
    • Result
  • Non Human forces (predictable & unusual)
  • Intentional self harm breaks causal chain however predictable it may be
  • Charge is correct
  • Stevenson v. State: convicted of murder b/c prevented woman from going to Dr. when sick even though last act was taking poison by self so not the same in all cases
  • What about paparazzi?
  • Driver is aware of risk
  • Drag Racer? Same


4. D, wishing to kill her husband, places a glass of poison by his bed. Thunder knocks glass to floor. As husband gets up in response to the thunder, he slips on the spilled liquid, hits his head, and dies. Is D guilty of causing his death?

  • Bring about intended object but through a somewhat fluky causal sequence that you did not have in mind but still brought it about. Reckless homicide?


5. Ds assaulted V, intending to kill him. Afterwards, thinking him dead, Ds pushed him over a cliff. V was in fact not dead at the time, nor was he likely to die from his wounds. However, he did die from being pushed over the cliff.

  • Concurrence issue of mens rea and actus reus
  • Can D be an intervening cause in his own act?
  • Intervening cause is just the D himself
  • Guilty of at least reckless murder



PS 10, 11

MPC 3.01, 3.02, 3.04, 3.05, 3.09 and 3.11 – Self-defense


1. A, B, and C =homicidal lunatics not legally or morally responsible. They round up children & give them poison & tell them to throw it at passer-bys; also strap captured infants to the children “to protect [the children] from retaliation.” Residents use deadly force (a) against A,B,C as they are about to give the bombs to the children; (b) against the bomb-wielding children who don’t have infants strapped to them; (c) against the bomb-wielding children who do have infants strapped to them; and (d) against any of the above when innocent bystanders are at risk from the use of defensive deadly force. Assume that the number of people put at risk by the townspeople’s use of defensive deadly force is always greater than the number of townspeople at risk of being killed or injured by the bombs.

  • Innocent aggressors & innocent threats
  • Townspeople justified & if so, in what context?
  • # of townspeople at risk is less than the # of innocent aggressors who you would have to kill to advert the danger
  • Farther removed in time so harder to use self-defense as justification
  • Unless, have to intervene now or can’t intervene later
  • Law extends the justification for using self-defense force to attacks on innocent aggressors – people who aren’t culpable
  • Doesn’t matter how numerous innocent attackers – still have justification
  • Innocent shield should be treated as an innocent bystander
    • Someone directly blocking your defense response
    • Not justified in causing harm to them
  • But justified in innocent you vs. innocent shield?
  • How much risk your predicament is to justify how much of a risk you can put other people in
  • Purpose to kill attacker, but put shield in high risk – is it justified?
  • Can’t deliberately make someone into a shield of yourself. Can’t pull someone in front of you to shield an attack
    • #s would make a difference – get at attacker by killing a whole bunch of other people too. Not going to be justified
    • Culpable shield – person who deliberately puts himself in front of your attacker


2. If D believes V is attacking D and about to cause D’s death or serious injury, and D uses deadly force against V, what, if anything, is D criminally liable for if D was mistaken in her beliefs?

  • Reasonable belief – justified
  • But unreasonable – harder to delineate it
    • Common law: make mistake that someone is attacking you & you killed them
      • If reasonable belief – not guilty
      • Unreasonable mistake: unintentional homicide (murder)
    • MPC:
      • Reasonable mistake – not guilty
      • Unreasonable: divides it into culpability levels: negligent & reckless
        • Negligent belief then culpability level was just at level of negligence & just negligent homicide
        • But reckless belief, then reckless homicide
        • MPC 3.09(2)
      • Unreasonable beliefs break down into negligent & reckless
      • What does it mean to recklessly believe something?
  • You could still be negligent and then turn out to be right
  • Attempted negligent homicide? Can’t attempt to be negligence but if attempt homicide & it was negligent in you committing it.


3. Suppose D is, unknown to D, about to be attacked with deadly force by V, and D intentionally kills V because D hates V. Should D be entitled to claim the justification of self-defense?

  • Have to believe that he is being attacked to have a justification
    • Doesn’t make any difference – as long you believe that it was necessary for you to use deadly force to defend yourself, then we don’t ask anything else – whether you enjoyed it/hated it/etc
  • Even if it turns out you were being attacked, you have to believe you were being attacked at the time
  • Third party could use defense of others if he saw the imminent attack


4. Suppose D and A each reasonably, but incorrectly, believes that the other is attacking him. Because of this, each decides to use force in “self-defense” against the other. Have they used justifiable force?

  • Paradox – if believe in deadly force – false story becomes true one
  • In fact will then be being attacked by other person
  • Same for other
  • Symmetrical
  • MPC: problem comes from mistake being called a justification
  • Mistaken justification should not be treated as lawful force. Instead be seen as excused


5. D knows knife-wielding lunatic is at large but D goes out anyway but takes his takes his gun. D encounters lunatic. If D shoots the lunatic and kills him, will he be able to invoke self-defense; what if D’s taunting is what turned the lunatic into a lunatic?

  • Doctrine of proportionality
  • Two issues: recklessness in face of risk & retreat doctrine
  • Reckless by going out to get candy bar while lunatic on loose?
  • Reckless homicide
  • Risk of having to use deadly force in self-defense
  • What about retreat doctrine?
  • Should he go out in the first place?
  • Leaving a place of safety is defying retreat?
  • Duty of retreat is an application of doctrine of proportionality
  • Can use deadly force in self-defense only to respond to certain threats: death, serious bodily harm, kidnapping, rape
    • Deadly force to respond to threats that arise to a certain level – doctrine of proportionality
  • Can’t use deadly force to protect small right
  • Retreat doctrine says you can’t use self-defense to just protect wanting to be somewhere at a certain time
  • If you can retreat safely, you are obligated to do so
  • To the extent you accept proportionality doctrine, retreat is an aspect of it
  • So retreat can apply to leaving a place of safety
  • Retreat applies to keep you in place
  • But isn’t clear when duty to retreat is triggered
  • Reckless in putting yourself in a likelihood of a vulnerable situation – should you ever be told there are places you shouldn’t go?
  • Necessity is also aspect of proportionality
    • Two ways of defending yourself: Shoot someone or push them away
    • Shooting them is not necessary if you could push them away – use lesser amount of force & achieve same degree of protection
    • Both retreat & necessity require you to give up interests that you would be enforcing by using deadly force
    • Get to go to store/continue with activity if use deadly force
  • Provocation: conscious object to get him to attack him


6. James Bond is being pursued by Jaws, who is clearly trying to kill him. Bond is at the top of a high hill. The hill is covered with thick, impenetrable jungle.. Bond sees Jaws on the road at the bottom of the hill, about an hour’s time from the top. Jaws is at the only point where Bond will have a clear shot until Jaws is at the top. May Bond shoot at Jaws now, or must he wait until Jaws is at the top of the hill, where Bond’s chances of successful defense are lower?

  • Common law focuses on imminency of the attack
  • MPC changes focus on timing of attack to if it is immediately necessary for use of defensive force
  • Makes a difference in a case like this
  • Focus is on when D attacks not on imminent attack
  • In that amount of time, many things could change preventing his attack
    • Effective overall probability that if James waits, he will get attacked
    • Change his need to use self-defense
  • Time effects probabilities – one way or the other
  • Probabilities in general: lapse of time decreases prob or having to use defensive force
  • Gets back to pre-emptive nature of all self-defense so always just a matter of prob b/c things could happen b/f the attack every actually occurred
  • Intuition says you can use deadly force against Russian roulette player, then why not use deadly force against reckless driver
    • Reckless driver is unjustified in what he is doing/he is not doing something useful like ambulance driver
  • Pre-emptive self-defense – all Bond can do is think there are things that could change risk but it still seems pretty high


3. J calls D a stupid oaf & D retaliates by telling J that he will hold him and beat on him for an hour, though he will not cause his death or serious injury, but only pain. J has a gun. May he use it against John to avert this mild beating?

  • Doctrine of proportionality says no deadly force used
  • Domestic violence – 250 pound husband routinely beats her but doesn’t cause serious bodily injury. Her use of force short of deadly force would be completely inadequate
    • One aspect would be that she just has to take it in terms of defending herself
  • One implication of doctrine – where proportional force would be inadequate, just stuck with not doing anything
  • Can you claim self-defense where you use force that you know will be unsuccessful? What if you know force will not be adequate then not defending yourself against the attack. Nothing pre-emptive about the attack
  • What if J knows that by using his fists, he will enrage D so much that he will try deadly force? May J then use his gun?
  • Makes more sense to give up right with non-culpable aggressors
  • Not as easy with culpable aggressors – give up right to self-defense for someone culpable for their wrong actions?


4. Suppose D is being attacked by V with deadly force. D can safely repel the attack by shooting V in the arm. Instead, D shoots V in the chest, killing V. Justifiable self-defense?

  • Deadly force is justifiable defense (3.112)


5. Suppose D is being attacked by V but is not in jeopardy of death or serious bodily injury from the attack. D can stop the attack by shooting V in the arm or by using his fists. V is much more likely to suffer serious injury from D’s fists. May D shoot V in the arm?

  • Not entitled to use deadly force so deadly force not justifiable
  • Can bluff with a gun when not entitled to use gun


6. Edna has been told that Gypsies who find women alone always rape and kill them. She believes this. One night, while walking alone, Edna sees two Gypsies approaching her. As they come close, she pulls her gun and shoots them. Does she have a legitimate claim of self-defense? Would she, if evidence were discovered that showed they in fact planned to rape and kill her? Could the Gypsies use self-defense? Third party intervenors?

  • Whether she believes she’s in imminent danger vs. this is a reasonable belief
  • We rely on generalizations all the time b/c we have to; we never know anything for sure
  • All we know are general correlations
  • Inevitable that you are going to rely on generalizations/stereotypes; problem when stereotypes inaccurate

Defense of Property & Law Enforcement

PS 12

MPC 3.06– Defense of Property MPC 3.07 – Law Enforcement


1. V mugged D previously & threatened D with a gun. V now accosts D and demands D’s wallet. No gun shown but D fears one. As soon as V begins fleeing the scene, D pulls a gun he has been carrying for self-protection and begins chasing V, demanding his wallet back, and threatening to shoot V if V does not drop the wallet. As D pursues V, D is joined by police officer P. After pursuing V for a few blocks and issuing several warnings, D and P, fire at V, killing him. D and P are prosecuted for homicide and claim, in their defense, the privileges of MPC §§ 3.06 and 3.07

  • Assume robbery has not yet been consummated
  • Conditions of deadly force
  • Meets condition 1:
  • Can be threatened with a gun even if it isn’t shown
    • Robbed me in the past & in the past, he had a gun
    • Since he is robbing me now, he probably has a gun
  • MPC could indeed apply in this situation
  • Reasonably believe to be threatened with gun even if you never see the gun
  • Then justified in preventing the commission or consummation of this robbery
  • So but what if V then drops his gun?
  • MPC entitles the use of deadly force even if the robber is completely unarmed
  • But what about P?
  • P as a police officer assistor (3.07(5)(a)(2)) – governs the use of force by police officers to prevent the commission of consummation of crime
  • Seems to say you couldn’t use deadly force
  • 3.07(2): force to effect an arrest: seems to suggest that police officer could assist
  • What if dropped gun was fake?
  • Depends on whether robber really did have real gun or just threatened to have a real gun.
  • You can shoot even though you now know the person is unarmed, gives some reason to think that you can shoot now if you know the gun is a fake. MPC not really clear
  • Couldn’t use deadly force if in the beginning you knew it wasn’t a really gun
  • Not clear when consummation ends – sometime after/during crime
  • What if no armed robbery but felonious robbery?
  • If you were worried about serious bodily harm
  • Entitled to shoot him if catching him would expose you to serious bodily injury
  • What about the police officer?
  • If D could shoot V, then any third party who perceives the situation in a way that would justify D’s shooting, any third party can come in and assist D.
  • P has to see situation in a way that would make D justified
  • Entitled to protect D with deadly force if D doesn’t believe in deadly force?
  • Police could not use deadly force to effect an arrest where the criminal was not shown to be armed or threatened deadly force


2. V, a cop, tries to arrest W, who, when drinking, gets violet. V has a gun & W has a knife, V pulls his gun and orders W to drop his knife. W refuses, and V shoots him. W dies, and V is charged with homicide. What result?

  • Arrest is only for a misdemeanor, not a felony
  • But the second he pulls out the knife & resisting arrest, it’s a felony, not just a misdemeanor
  • So then justified


3. D’s home has been burglarized frequently in the past by burglars who the police have said are probably armed and dangerous. D keeps a loaded gun, but is not very proficient in gun fighting. May D fire at the person without warning next time? If he may, may he set up a deadly spring gun in case he is a deep sleeper or a very poor shot?

  • 3.06(5) – MPC says no use of spring guns to protect property
  • But if used for self defense, then you can use a spring guns
  • If only possessions threatened, then not allowed but if used to protect your person, then OK
  • If you can defend yourself manually, then you can set up mechanism to defend yourself



PS 13

MPC 3.02 – Choice of Evils/ Necessity


1. D knowingly diverts a river from its normal course to an alternative course, where D knows it will flood V’s home. Suppose in each case D is prosecuted for flooding V’s farm and pleads the lesser evils defense. What results?


A. Assume D knows that river, if not diverted, will flood the town, killing hundreds, and that saving those towns people is a lesser evil than flooding V’s farm. Nevertheless, D’s reason is D’s hostility to V, not concern for town.

  • Knows he is averting a greater evil but not motivated by that thought
  • But, put yourself in the position of various parties – from social standpoint, want D to chose the lesser harm


B. Assume alternatively that D is unaware that the town is in danger, and diverts the river out of hostility to V. Nevertheless, the diversion saves the town.

  • Gets charged with knowingly flooding D’s farm
  • “Unknowingly justified actor” but actually unjustified
  • Not believing there is a necessity so not justified
  • Same thing with self-defense – have to believe the harm
  • If he doesn’t believe he is averting a greater evil, then he doesn’t get the defense
  • If V knows about the lesser evil, V cannot resist
  • If you know of lesser evil, you can assist D but you can’t resist him


C. Same as A., except D is not hostile to V. But the reason the river is a threat to the town is due to D’s negligence regarding a dam upstream.

  • Technically justified for choosing the lesser evil, but still guilty of his negligent actions
  • 3.02(2) – negligence or recklessness in causing – still culpable for whatever negligence harm result from choosing the lesser evil
  • Treat crime at level of culpability that reflects his true culpability – negligence
  • What would happen in this case if D didn’t act? Get charged with knowing homicide of killing more people than if he floods the harm b/c he has a duty to act b/c he negligently caused the peril
    • Would be knowing homicide by omission – he has a duty to act now that he negligently caused the dam to break. He has the chance now to save the town
  • Converts it from negligent to knowing homicide if he does nothing


D. Assume that D mistakenly but reasonably believes the town is in danger and diverts the river “to save” the town. What if the mistake was unreasonable?

  • Get defense if you have a reasonable belief, even if it is wrong
  • V would be justified in stopping D if he knows the truth
  • Third parties should be able to resist if they know of the mistake
  • The fact that D would get a defense doesn’t mean that the usual implications of his justification apply to other people
  • Only in reference to how you personally believe the situation to be
  • But unreasonable mistake: lose defense
  • If can be negligent with actions, can be negligent with beliefs – but harder to really qualify


2. Consider the following examples of taking one life to save more than one:

  • What is a lesser evil is a matter of law. Beliefs don’t matter in terms of this, more a Q of the ct. Beliefs about facts do count but don’t care how he weighs the evils
  • First four: takes things that seem equal: lives v. lives

The trolley problem” v the surgeon

  • 1 life v. five in both cases
  • Don’t need the one worker on the side, he is just unfortunate by-product
  • But with surgeon, need the patient as a means to an end
  • Worker on the siding is not instrumental to bring about the lesser evil whereas the hangnail patient is necessary to save the lives
  • Can’t save the five people on the trolley without pushing a fat guy over to stop the trolley
  • Don’t think that anyway of brining about lives saved is on par with any other way of bringing about results
  • Across cultures, people think it’s ok to switch the trolley, not ok to cut up patient or push someone off the bridge
  • Way you bring about the benefit is what matters

Eating the cabin boy to save the lives of the shipwrecked sailors v tossing people out of an overcrowded lifeboat

Deaths of some are required to save the lives of others

  • Near death is never a defense to murder
  • Murder nearly shortens a life, doesn’t matter by how much
  • Depriving him of a little more time is immaterial
  • Using someone as a means of saving the others
  • Just using cabin boy as food
  • Lifeboat: imagine that people getting tossed over didn’t exist, then people in lifeboat would still be saved
  • They are a byproduct
  • Not using the other person to save their own lives; be better off if other person wasn’t around
  • His presence is endangering them
  • Case is more like trolley ex
  • Even where the values on both sides of the calculus are the same: lives v lives
    • Not always just counting up numbers on sides & talking about lesser evil
    • Talks about means to get result

E. An anti-abortion group, which believes abortion is homicide, trespasses on an abortion clinic’s property as a means of slowing the rate at which abortions are performed. When prosecuted, they plead “lesser evil.”

  • US SC decision under constitution has said abortion is not murder so it is protected
  • Legislatures cannot treat it that way so can’t give lesser evils defense to people who break law b/c they think abortion is homicide

F. Moose are foraging on D’s cattle ranch in competition with D’s cattle. D shoots some moose to protect his herd and is prosecuted for shooting moose out of season. He pleads “lesser evil.”

  • Someone violating statute to protect personal interest
  • How do we compare evils that are of widely different types?

H. D believes the military draft is a great evil and intentionally burns down a draft headquarters. When prosecuted for arson, he pleads “lesser evil.”

  • Can’t be a lesser evil
  • Q of law has been made – legislature instituted the draft
  • Can Q laws application in certain circumstances but can’t claim that it was a greater evil to violate law that has already been determined
  • Lesser evil is used where legislature has maybe not addressed or thought about certain circumstance
  • Legislature says draft is okay; can’t just say it’s not
  • Can’t just disagree with draft & break the law

I. V is trapped in a burning car and there is no way to save her. D, V’s husband, out of a desire to stop V’s suffering, shoots her. When prosecuted for murder, D pleads “lesser evil.”

  • Might vote against explicit permission is because it may get abused
  • May be all sorts of reasons why you wouldn’t want an exception to be recognized without meaning that these cases are not cases of lesser evils
  • Quite ambiguous as to when a legislative purpose to exclude the defense is clear b/c all sorts of reasons you might reject making it explicit
  • Rules are blunt in order to guide our actions
  • When you start carving up the rule to make exceptions, you may create too many flaws
  • Q – what does it mean to say the legislature has excluded it?
  • Q of it something is a lesser evil or not is a question of law – not for jury to decide upon
  • Legislature has the prerogative of taking a stand




PS 14

MPC 2.09 – Duress


1. D, in prison, is continually sodomized by other prisoners against his will. To avoid continuation of such treatment, which has severely mentally traumatized him, D tries to escape from prison. A prison guard tries to stop him, and D knocks the guard down, seriously injuring him. Once outside the prison, D remains at large until captured. He is charged with escaping from prison and assault on a peace officer and pleads duress. What result? What result if he pleads “lesser evils?”

  • Escaping unlawful force but not being coerced to use unlawful force
  • Not a standard case of coercion b/c person doing the coercing is not making a threat to do his unlawful will
  • But here, the escape is not carrying out the will of the people using unlawful force
  • MPC wants to include this form of coercion in defense
  • Coercion word makes it confusing. Change word to impel & then you’re freeing yourself from the unlawful threat by removing yourself from the threatener’s power
  • What about lesser evil justification?
  • If duress then excuse then guard justified in resisting
  • But if lesser evil justification – guard not allowed to try to stop him
  • Would person of reasonable firmness in actor’s situation commit these two crimes?
  • But limited resources so allow for duress & end up with a bunch of convicted criminals running loose


2. D has been found guilty of murder and is sentenced to die. D believes he is innocent. At the time of the execution he stabs and kills the executioner with a hand-carved knife and tries to escape. He is captured and tried for the murder of the executioner. He pleads duress. What result?

  • No defense for duress b/c not unlawful force is not justified here
  • Not claiming act is right, just saying he should be excused


3. D, a high public official, has been photographed by B, a blackmailer, in an adulterous relation. B demands that D write checks on the public treasury to B’s company for bogus services or else B will publicly reveal D’s peccadilloes. D writes the checks, the deed is discovered, and D is prosecuted for misappropriating public funds. D pleads duress. What result? What if D were a drug addict, B his supplier, and B threatened to cut off D’s drugs? What if B were one with a legal duty to give D life-preserving drugs?

  • No b/c he is protecting his reputation and not his bodily integrity
  • Threat has to be unlawful FORCE
  • Always assumption that you had to commit the crime to avert the unlawful threat
  • Why does it need to be force rather than reputation? What constitutes force? Why does it have to be unlawful?


4. D is driving a car. B is a passenger holding a gun on D. D is on a narrow stretch of road, with a sheer drop on one side and a sheer cliff wall on the other. D sees two children playing in the road. He has time to stop, but B orders him to drive on or be shot. D complies and is later charged with murdering two children. He pleads duress. What result? What if it is not B’s threat, but a boulder coming down the side of the cliff wall that will crush D if he stops, that impels D to run over the children? Would it matter that a person dislodged the boulder?

  • Of course, doesn’t get defense of lesser evils
  • Would person of reasonable firmness commit act? If so, then he gets the defense, even for a homicide
  • What about natural force of boulder getting dislodged? Boulder is not threat of unlawful force b/c just natural force
  • No one to blame if it’s just natural force
  • One of these most debated provisions – why not just make it situational duress, person of reasonable firmness would succumb to the threat & commit the crime
  • Can humans resist a natural force more than a human threat?


5. D is ordered to rob a bank by X, a mobster living across the country. X tells D that if he refuses, every bone in his body will be broken within a year. D, knowing of the reputation of organized crime, fears for his safety and complies. He is tried for bank robbery and pleads duress. What result?

  • Just as MPC gets rid of imminency requirement in self defense, no imminency requirement of the threat for duress
  • Time a distance bearing on duress? It affects the probability that the threat can be carried out
  • But still may not change the probabilities all that much – think that organized crime always follows thru so if reasonable person would respond to the duress, then excused


6. D, an adult, thinks kid is part of gang when he orders her to steal a watch from a store. Kid turns out not to be a gang member. She pleads duress. What result?

  • Has to go to the person’s belief, if D feels threatened based on perception, then seems reasonable
  • Threat doesn’t necessarily have to be verbal, but question of what person reasonably believed
  • Somehow beliefs are not acknowledged here but it is clear the beliefs are just as essential to duress as they are to justifications
  • Beliefs are relevant & based on D’s perception of if they are being threatened with unlawful force


7. D is independently wealthy and deathly afraid of being tickled with a feather. X threatens D with such tickling unless D robs a bank, which D does. D pleads duress. What result?

  • Still threat of unlawful force if you don’t consent to the tickling
  • Threshold criteria for unlawful force is met
  • Would person of reasonable firmness be able to resist the threat?
  • Can we excuse someone if they have a normal phobia?
  • Where do we draw the line?
  • Who are we going to excuse because of their fear


8. D is completely impervious to pain. X threatens to break every bone in D’s body if D doesn’t rob a bank. D robs, is caught, and pleads duress. What result?

  • Can’t feel the pain but still threatened with unlawful force
  • Have someone who is opposite of last – just dif perspective on how we think of person of reasonable firmness in actor’s situation
  • What do we evaluate – is it pain/fear – what excuses the person from be liable for the crime
  • Excuse people because we sympathize with the fear – so how much courage should a person display when threatened?


9. D plans to rob a bank. X, who doesn’t know this, threatens D with death unless D robs the bank. D robs, is caught, and pleads duress. What result?

  • This would likely still be duress because, as other hypotheticals have shown, any number of things could happen in between you thinking of committing an act and then actually committing it.


10. D has been beaten again and again by her husband, H. H and D are now living apart. H calls D and tells D, in a threatening voice, that he needs money and wants D to steal some from the business where D works. D doesn’t report the threat to the police because she feels that H will eventually “get her” no matter what. She steals the money and sends it to H. She is caught and pleads duress. What result?

  • Originally invoked in self defense cases
    • Woman couldn’t show that threat was imminent – would normally be precluded from raising defense – battered women may not be able to escape the way other women would be able to
  • Wife carrying out a threat by husband & pleading duress
    • Might be more threatening b/c of the history of battering b/c she wouldn’t feel like she has a way to avoid the threat



PS 15

MPC 2.08 – Intoxication


1. Dr. Jekyll turns into monster when he drinks & kills someone one day. Intentional, knowing, reckless, or negligent homicide? Could Dr. Jekyll have a complete defense to any crime? And what if there’s evidence that Dr. Jekyll, unable himself to kill anyone, got drunk with the hope his monster self would kill?

  • 2.08(2) – charge with reckless homicide
  • Treats voluntary intoxication as free-floating recklessness that can be inserted into any actus reus of any crime you commit while intoxicated
  • Don’t have to show that he was reckless just have to show that he was voluntarily intoxicated
  • 2.08(1) – says – intoxication of actor is not a defense unless it negatives an element of the crime (not correct – just says you didn’t commit the crime and so you don’t need the defense)
  • Provides that you didn’t have one of the requisite mental states
  • When lose requisite mental state, 2.08(2) – says you are still guilty of recklessness by virtue of voluntary intoxication but only kicks in when your intoxication is so great that you don’t have the purpose or knowledge of the risk you are creating/act you are doing
  • Intoxication may not bear on the case at all if it doesn’t arise to the level where it negates one of the mental states
  • If it does, then 2.08(2) kicks in and holds you liable for recklessness
  • Only under 2.08(4) is intoxication a defense
  • Other than that, it is actually an aid to the prosecutor by showing reckless version of crime b/c of voluntary intoxication
  • Not a defense at all but a way of helping the prosecutor
  • What about a complete defense to crime?
  • Could say there is no voluntary act if in like a state of consciousness that was like hypnosis
  • As prosecutor you would have to say yeah, not acting voluntarily at time you killed, but acted voluntarily in getting intoxicated
  • What if D got drunk so that his monster self would kill?
  • This is a case of purposeful homicide, incorporating your voluntary act into involuntary circumstances
  • Voluntary in setting up the whole plan b/c he knows there’s a chance that he’ll commit the homicide and that’s his purpose


2. D normally has good trips on LSD, though he’s heard of people having bad trips. This time, however, he has a psychotic reaction and kills someone. He claims that at the time of the killing he met the legal test for insanity. Should D be convicted of criminal homicide, and should it be negligent, reckless, knowing, or intentional? What if D had been told by another person that the pill was not LSD, or that LSD never caused “bad trips?”

  • Reckless homicide – didn’t have intent to murder but put himself in that situation by taking the LSD
  • One place intoxication is a defense under 2.08(4) when it induces a state the renders you legally insane
  • Get a defense as long as either the intoxication was involuntary or if it was self-induced, the reaction was pathological
  • LSD is illegal so it is an unjustifiable risk so could still arrive at reckless homicide b/c he took an unjustifiable risk by taking LSD
  • That risk is already built into the crime – already being punished for that risk by taking LSD – taking LSD already includes in terms of gravity – taking that risk – can’t double count it by saying D was reckless in terms of homicide
  • Under 2.08(2) don’t have to show that you were being reckless, recklessness is just imposed on whatever you do afterwards – get voluntarily intoxicated, then reckless in respect to anything you do as a consequence
  • That is just the threshold – if you still had purpose or knowledge, could still be charged as such
  • Lose benefit of section 4 b/c you know that a drug from the pharmacy can cause a reaction?
  • “Knows or ought to know” suggests negligence
  • Self induced intoxication – not clear how it works when it is extremely uncommon for someone to have a reaction and then you have that reaction. Do you have to know you are the 1/million? Just have to have heard of it happening?
  • What if you sometimes have a reaction? Does that qualify as pathological? Will be matters of degree in reality
    • Some chance of reaction b/c you know that there is some incident of it


3. D is unaware that he is allergic to spinach & that it causes a psychotic reaction equivalent to legal insanity. If D eats spinach and then kills someone, is he guilty of homicide?

  • No particular substance under section 4 to qualify as an intoxicant so he would not be guilty of homicide
  • It’s whatever substance induces the mental state under subsec 4 – complete defense


4. D is given liquor by X, who tells D that it is ginger ale. D has a severe reaction to the liquor and becomes very violent, though not legally insane. D kills someone while in this condition. Does D have a defense under MPC § 2.08?

  • Not legally insane so still has the mens rea to commit the crime
  • Involuntary intoxication is not a defense to anything
  • If you are involuntarily intoxicated & it prevents you from forming the mens rea of the crime, then you are not guilty of the crime
  • If involuntary intoxication just causes you to be more violent, the fact that your intoxication was involuntary does not give you a defense at all
  • Just b/c you may not have done it sober, does not mean that it is a defense
  • As long as you are capable of forming the mental states to be guilty of the crime, you are guilty of it!
  • Involuntary intoxication matters only if it negatives an element of the offense or renders you legally insane


Insanity & Mental Disturbances

PS 16


MPC 4.01, 4.02 – Insanity & Mental Disturbances


1. Client intentionally or knowingly kills wife. Psychiatrist will testify client is mentally ill and delusional. Client told psychiatrist that at the time of the killing he believed his wife to be a “giant spider” that he had to beat to death with a hammer. Should you plead insanity? If not, what other arguments are available to you to defeat the murder charge? Discuss the pros and cons of the alternative defense strategies in this case.

  • Bop on D in insanity
  • Not have the mens rea of purpose, knowledge or reckless
  • What about negligent homicide? Reasonable person standard or reasonably mentally ill standard
    • Unreasonable is not really applicable to insane people
  • Negate mens rea – charged with intentional homicide – evidence that he thought he was killing a spider would negate the mens rea
  • Burden of proof for the mens rea is on the prosecutor beyond a reasonable doubt. Burden on D is just to raise a reasonable doubt
  • D has to prove by preponderance of evidence that he is insane
  • Single piece of evidence can bear on dif aspects of the same case – so evidence could bear on mens rea and insanity claim
  • If acquitted for negating mens rea or reason of insanity
    • But, if acquitted, get locked up in asylum
    • Case is reviewed periodically to see if you are still mentally ill or dangerous
  • Civil commitment for insanity: to commit someone for this – had to prove mentally ill & dangerous by clear and convincing evidence – higher than preponderance but lower than reasonable doubt
  • Proof that someone committed a crime but was insane is a sufficient substitute for current mental illness & dangerous
  • Issue of if delusions can count as negligence if you leave out insanity defense is open to debate


2. Client killed her husband, claims that she knew “he was cheating on her and was also attempting to drive her crazy by having space aliens send her messages on the TV.” She also claims that she was “seized by an irresistible urge to kill her husband, an intense pressure that she could dissipate only by killing him.” A psychiatrist who has examined her has diagnosed her as a “delusional paranoid.” A physical examination has revealed the presence of a brain tumor that the psychiatrist believes is the cause of the client’s mental problems.

  • Brain tumor is neither sufficient nor is it necessary
  • Proof of mental illness does not require proof of any organic legion
  • Doesn’t mean that you have shown that you have a mental illness
  • Does she meet standards for insanity defense (4.01)? No
  • Does she not know that the act is wrong? May not know that it is wrong but probably knows that it is criminal
  • Irresistible impulse test:Inability to appreciate criminality of conduct: where mental illness interferes with your cognition/understanding of the world
    • Second is problem with volition/inability to control your conduct



PS 17 & 18

MPC 5.01 – Attempt

1. A intends to have sexual with S, who is, unbeknownst to Adam, under 16 years of age. Ready to have sex then interrupted. A charged with “attempted statutory rape.” What result? Would it make any difference that there was another, less serious crime, “sexual intercourse with someone under 18 years of age,” that A was aware that he was attempting to commit?

  • Substantial step attempt under 5.01(c) b/c he has not completed the attempt
  • Something still to be done
  • Incomplete attempt
  • Completed attempt would be having sex with her, thinking she is underage and then it turns out she isn’t (5.01 1(a)) – this would only inculpate him and would make him guilty of an attempt
  • Or, he thinks he had sex and he really didn’t (5.01 1(a))
  • What if purpose was to have sex with underage girl? Doesn’t matter
  • As long as you meet the condition in 5.01 (1) – you have the culpability otherwise requires, only thing mistaken belief can do is make you guilty of attempt; it can never act to exculpate you, only to inculpate you
    • Mistakes of this sort don’t get you off
  • Conditional attempt: “I intend to have sex with S if and only if she’s overage.” The condition negatives the harm or evil sought to be prevented. Non-criminal purpose
  • Problem with incomplete attempts is that we don’t know how they will play out
  • Other problem is the vagueness of how far is far enough to go to constitute “Attempt?”
    • MPC says “substantial steps.”
  • Introduces notion of incomplete attempt – distinguish b/w complete and incomplete attempts


2. Driving with defective brakes is a strict liability offense. D attempts to start his car, which, unbeknownst to him, has defective brakes. Has he committed the crime of “attempted driving with defective brakes”?

  • Still under 5.01 (c) b/c he hasn’t started driving yet. Only his intent to drive with defective brakes
  • Starting it would have to be a substantial step in the direction of driving it


3. Carla thinks she’s drunk & chooses to drive but turns out she wasn’t drunk. Has Carla committed the offense of attempted drunk driving, attempted reckless operation of a motor vehicle, or attempted reckless homicide?

  • Completed attempt under 5.01 1(a) – she believes she is driving with a BAC above the legal limit
    • But for her mistake, she would be driving drunk
    • Not guilty of drunk driving but guilty of attempted drunk driving
  • Can’t be charged with reckless operation of a motor vehicle because you can’t attempt to be reckless – she IS being reckless
    • No gap between her attempting to be reckless and being reckless, she is just being reckless
    • If on the way to driving the car but hadn’t started yet and thinks she has a high BAC, then planning to drive recklessly, but not driving recklessly, then could only be guilty of attempt under 5.01 1(C).
  • Can’t attempt a reckless or negligent result crime so can’t be charged be charged with attempted reckless homicide. Can’t attempt to kill someone recklessly


4. D unreasonably believes V is about to shoot him. D draws his gun and fires at V, believing that if the bullet hits V where D is aiming, there is a high probability that V will die. D’s marksmanship is poor, however, and the bullet misses V. Has D committed any crime?

  • General principle is that you can’t attempt a reckless or negligent result crime but in this case it is attempted negligent homicide because this enters in through the defense
  • Mens rea with respect to killing is knowledge, knowledge and death
  • Negligent regarding a defense – reduces what would have been knowing homicide to negligent homicide
  • Where bullet misses – it becomes an attempted negligent homicide
  • Attempt enters in through the defense with the mental state not through the commission of the crime
  • Can’t have attempted result crime with exception when recklessness enters by way of a defense
  • 5.01 1(b) – completed result crime
  • Two kinds of completed result attempts under (b)
    • Firing a bullet and then missing where you commit the attempt, whether it succeeds or fails requires no further action and is beyond your control
    • Could still stop result from occurring – commit the attempt and then have a way to stop the result, like poisoning someone’s glass or lighting a fuse. Change your mind, might be able to stop the result


5. Purchasing burglar tools with the intention to burglarize is “attempted burglary.” Enacted new statute that makes it a separate crime to “purchase of burglar tools with intention to burglarize.” F is planning a burglary and goes into the hardware store intending to purchase burglar tools. Can he be punished for attempting to violate the new statute? Can the state make what he has done a separate crime and then punish some still more preliminary act as an attempt?


  • Burglary is a crime of its own but it is based upon a pattern of conduct that was incomplete attempts at completing some further crime, like entering a building to steal something
  • Now separate attempt at burglary – such as purchasing burglary tools with the intent to commit burglary
  • Could have an incomplete attempt at burglary and make that a crime of its own – the point of criminality gets pushed earlier and earlier
  • If you have incomplete attempts, then you don’t have to wait for them to fire the shot to intervene, what can you get them for if they haven’t completed the attempt? Incomplete attempts allow police to arrest and charge them for a crime
  • Always be the problem of the person who changes their mind, etc but still serves purpose
  • Completed attempts are not really inchoate at all because the person has just done something that they think is criminal but just under mistaken beliefs


6. Two men go out deer hunting on October 15, which is, in fact, the first day of the legal hunting season for deer. One believes that the correct date is October 14. The other knows the date, but believes that the hunting season begins on October 16. They are both charged with attempting to hunt out of season. What result under the common law? Under the MPC?

  • First one (Mr. Fact):
    • 5.01(a) – factual mistake
    • Guilty of an attempt
  • Second one (Mr. Law):
    • Not guilty of an attempt
      • MPC & CL
    • Can’t be guilty of an attempt when you make a legal mistake of the law
  • Seem so similar, why difference in treatment
    • Why let the second person off?
  • Can’t be charged with attempting a non-crime
    • Made a mistake of law but just about the facts of the law
  • Mistake of law and a mistake of fact:
    • Illegal to hunt today?
      • Yes
    • What is the date?
      • Wrong date
  • Mistakes of law occur because of some mistake of fact
  • Mistake of fact, one end, mistake of law, other end – all on a line of continuum
  • Can see why this is a problem and why law had issues sorting it
  • Every attempt will contain some sort of impossibility; that’s why it is an attempt and not a success and each will have a factual and legal component
  • Just be clear on what the source of confusion


7. T caught smuggling marijuana into England, although he sincerely believed he was smuggling currency. Smuggling currency into England is not a crime. Charged with “attempted currency smuggling”?

  • Attempts are inculpatory mistakes
  • No b/c this is not the law


8. L thinks French lace is a dutiable item and attempts to smuggle it past British customs. She is caught, but is then told that French lace is not on the current list of dutiable items. The customs statute proscribes “failure to declare any dutiable item.” Has she committed the crime of “attempting to fail to declare a dutiable item”?

  • Has made a legal mistake but not about what the criminal law statute is
  • Same issue as Q7 so no


9. D believes in voodoo. Desiring to Kill V, D sticks a pin into an effigy of V. He now believes V is dead. Has he committed attempted murder?

  • 5.01 1(b) attempt
  • Under the facts that existed, it was impossible to produce the results
  • (Conditional Purposes) What if – Person is planning a criminal act on a conditional basis where the condition is extremely unlikely to occur…?
    • Condition is so remote that it probably won’t happen even though he has the criminal motive
    • Makes sense in this situation not to hold the person as guilty


10. (a) D has just put the final dose of poison in V’s wine glass, when he suddenly has a change of heart. He rises from his chair to grab the poisoned glass from V, but he hits his head on the chandelier and passes out. D’s accident so consumes V’s attention that V fails to drink the final dose of poison. Has D “abandoned” his attempt? (b) Suppose V has drunk the final dose, but D knows he still has time to administer the antidote when he hits his head. What mens rea does D have in the resulting homicide? What if D fails to prevent V’s death because V resists D’s attempt to get the glass back? What if there is a crime of “placing poison in consumables with intent to kill,” and D puts sugar in V’s drink, thinking it is arsenic, discovers his mistake, and then has a change of heart? Attempt? Abandonment?

  • Pragmatically – give individual who commits a crime the incentive to stop it if he can
  • If you renounce, then no longer guilty, you changed history
  1. Abandoning your effort would be taking substantial steps and then stopping
  1. Putting the poison in the drink is the last act to do so its 5.01(b) but you still could potentially reverse it or renounce it
  1. What is the causal link required between your renouncing and the prevention of the harm?
    1. Prevented murder but not in the way he planned to
    1. MPC doesn’t say anything about what kind of causal connection there needs to be
  1. Not an attempt question.
  1. Took final act to commit crime
  1. Purposeful homicide b/c committed last act but if he knew he had an antidote and then abandoned purpose to commit homicide so but then couldn’t go back because of attendant circumstances so then reckless homicide
  1. Crime has temporal segments so mens rea component gets more complicated
  1. Attempt and no abandonment – falls under 5.01 1(a) – look at the definition of the crime – not killing someone by poisoning, it’s putting poison in consumables to poison, its an act, can’t abandon it.
  1. Need to read the statute to know exactly what the crime attempted is
  1. This is a conduct crime of putting poison in consumables with attempt to kill
  1. Gets you to focus on the specific crime



PS 19

MPC 5.02 – Solicitation

1. D knows that X, his next-door neighbor, is the head of a criminal organization, and that X will kill any members of the organization who X believes are disloyal. D hates Y, who works for X. One day, while D and X are chatting over the back fence, D “lets slip” that Y is an undercover police agent. X does not know that D knows X is a mobster, nor does X know that D knows Y works for X. Is D guilty of soliciting murder?

  • Solicitation has an actus reus and a mens rea
  • Actus reus: Commands, encourages requests person to engage in conduct that would constitute a crime
  • Mens rea: Purpose is for person to commit the crime
    • Have to have the purpose that the person you are soliciting commit the actus reus of the crime
    • Solicitor has to have the mens rea otherwise required for the target crime
    • Have to have the purpose for the other person to engage in the crime
    • Purpose with respect to the actus reus of the crime to be committed
  • Here, no problem with the mens rea of committing the crime
  • The issue arises with the actus reus b/c he doesn’t use the normal way of getting someone to commit the crime
  • Can do anything that communicates your desire for the solicitee to commit the crime
  • But there is no mutual transparency – both people are usually aware of the solicitation
  • Is this significant? MPC says no, not significant, still solicitation
  • Here, the solicitee doesn’t know he is being solicited, doesn’t know he is being encouraged
  • What’s missing is that the person going to commit the crime doesn’t know that there is some other person out there rooting for him to commit the crime
  • If X murders Y, he is going to think it was on his own volition, won’t know that he has a supporter out there
  • Is solicitation of murder because he has the requisite mens rea for the murder and the actus reus is met even though it is done through indirect encouragement
  • When you leave aid for someone to commit a crime and they don’t see if but still commit the crime, you’re still an accomplice in the crime
  • When you know there is no wallet, you do not have the mens rea for attempted larceny if you solicit someone to steal a wallet knowing there is nothing in the person’s pocket
    • Language was put in to prevent someone who didn’t know the pocket was empty claiming that they knew the pocket was empty
  • Last clause of MPC – “which would establish its complicity of his commission in it:” “his” referencing the solicitor
    • To be guilty of complicity, you have to not only aid someone but aid them with the purpose of facilitating the offense
    • Meant to deal with the following scenario: solicitor requests the solicitee to request someone else to commit the crime, that establishes the solicitor’s complicity in the crime
    • Not requesting the crime be committed, but requesting someone else to request a third person to commit the crime
  • For any justification, have to believe in the facts that give rise to the situation so if the solicitor doesn’t know about the justification, he doesn’t get the defense even though the solicitee does
    • Solicitee would get defense if he didn’t know


2. D, a political radical, has been informed that X is a contract killer. X is in fact an undercover police officer. D offers X $100,000 if X will assassinate V, a political figure. Is D guilty of soliciting murder?

  • Yes guilty
  • With a solicitation, the actus reus is the communication
  • Solicitations bring you within the limits of the First Amendment, potentially in the domain of the freedom of speech
  • What is the relationship between the crime of solicitation and freedom of speech?


3. D wants to get his acquaintance, X, who D believes is a burglar, off the streets. He therefore tells X that he knows that a neighbor, Y, will be gone for the evening, and that Y keeps a lot of jewelry in the house, which has no alarm system. D tells X this because D intends to have the police stake out Y’s house and catch X in the act. Is D guilty of solicitation?

  • Not a solicitation
  • Does not have the mens rea of solicitation – D, the person soliciting, doesn’t have the mental state required to commit burglary himself and thus cannot be guilty of soliciting the burglary b/c he doesn’t intend for the larceny to occur
  • Even though he does command, request or encouraged the individual (the actus reus). It is definitely his purpose to have him commit the crime
  • More like a private sting operation
  • As long as there is no actual harm to be committed so that the D doesn’t have the culpability – does not intend that neighbor be deprived of jewelry then not a solicitation


4. G tells S, “Before you can be a full member of the Mob, you must carry out a killing, which in your case will be the killing of V.” The G is indifferent to whether S carries out the killing because he is indifferent to whether V is killed and indifferent to whether S passes the initiation rite. Is G guilty of soliciting murder?

  • Not guilty because he doesn’t have the requisite mens rea – it’s not his purpose to have the person murdered because he doesn’t care
  • This type of case is not all that uncommon
  • Facts only show knowledge not requisite purpose but juries a lot of times stretch to find purpose b/c this is not the type of person they want to let off the hook
  • Most of the time when you state conditions for joining something, there is usually the suggestion that you intend the person to meet it, there is an implicit encouragement
  • Purpose means it is your conscious object that you commit the crime
  • Solicitation requires purpose that the actus reus be committed, soliciting, aiding, promoting, facilitating


5. D tells P, “Kill V.” D’s purpose, which he reveals to P, is to have V killed because V has been unfaithful to D. “Otherwise,” D tells P (truthfully), “I wouldn’t want her dead.” Is D guilty of soliciting V’s murder? Does it matter whether V was unfaithful to D? Does it matter whether D — or P — might discover — or come to believe — that she was not unfaithful before the contemplated time of the killing? Is D guilty of soliciting a violation of federal law if V is an undercover federal officer, and killing a federal officer is a federal crime even if D has no reason to know that V is a federal officer?

  • Yes, because D’s purpose is for P to carry out the actus reus of murder
  • It is a conditional purpose but the purpose does not negative the harm or evil
  • As long as the condition doesn’t cancel out the criminality, the conditional purposes are still purposes
  • Solicitation, like all other inchoate offenses, can be renounced
  • Since crime will be committed by another person, it’s not enough for him to denounce the crime and stop himself, he has to persuade the other person to not commit the crime or impede his progression
  • If he has a change of heart and can’t get in touch with the solicitee, it doesn’t count as a renunciation that the solicitee end up not committing the crime for some other reason.
  • If no causal relation between D’s having a change of heart and P not committing the crime, then D is still guilty
  • In a case where you have a conditional purpose and the condition doesn’t negative the criminality then the mere fact that you say let’s call it off because the condition hasn’t been met, then not really a renunciation because the conditional purpose is still in effect so if she ever becomes unfaithful, then this would be triggered again
  • Doesn’t cease to be a burglary in the example of if he finds out there is no Andy Warhol in the museum
  • He is only renouncing the conclusion of his syllogism b/c he still has the conditional purpose to kill her if she’s unfaithful
  • If my wife is every unfaithful, then kill her! That’s solicitation
  • Violation of a federal law if V is an undercover federal officer, mens rea doesn’t matter because it is a strict liability and he has the purpose that the actus reus be committed, so he would be guilty of soliciting the killing of a federal officer



PS 20

MPC 5.03 – Conspiracy


1. D says to X, “Let’s go knock off a liquor store.” X says nothing, but proceeds to get into his car, open the passenger door for D, and then drive to a liquor store. Is D guilty of conspiracy to rob a liquor store with X? Is he if X is, unbeknownst to D, an undercover cop?

  • D has the mens rea required for conspiracy – has the purpose to commit the target crime
  • Jury could infer purpose from the circumstances, this is just circumstantial evidence that he has the purpose to commit robbery
  • This is an implied agreement, the agreement is implicit in the actions taken
  • Since purpose is a mental state, it will always have to be inferred
  • Circumstantial evidence of an agreement
  • Guilty of conspiracy if X is undercover cop
  • Unilateral approach with MPC
    • Conspiracy with only one conspirator
    • Logic parallels solicitation – the uncommunicated solicitation in 5.02(2) – look at the unreceived attempt as a completed attempt, uncompleted solicitation as solicitation
    • Completed attempt of conspiracy as conspiracy
  • Bilateral approach with common law:
    • Conspiracies require plurality
    • X feigning agreement, no agreement, no conspiracy
    • This would be a completed attempt at conspiracy


2. D, a landlord, agrees with P, who D knows is a prostitute, that P shall rent an apartment from D for $700 per month, about $200 per month more than the apartment is worth. P’s ability to pay the rent is dependent upon her “business” success, a fact known to D. Has D conspired with P with respect to P’s engaging in prostitution?

  • D has purpose because she needs to do this to pay the extra rent
  • Infer purpose from having a financial stake in a criminal endeavor
  • But, does he care whether he gets the money from the prostitution of from somewhere else, he just wants the money? However, typically if you have to show purpose, showing a financial stake in the criminal enterprise is enough to infer purpose
  • Have to infer that underlying rent agreement is the criminal agreement that P engage in prostitution
  • If P doesn’t know that D knows she’s a prostitute
  • Then there is no mutual transparency, can’t have an agreement about the prostitution to continue
    • They both must know that P is a prostitute and agree that this is how she will rent the apartment, she has to know that he knows and he has to know that she knows he knows
  • Conditional purpose to engage in prostitution to pay rent would count as purpose


3. A and B agree to try to sell some bottles of aspirin. Unbeknownst to them, some of the bottles are mislabeled. Selling mislabeled drugs is a strict liability offense. Are A and B guilty of conspiring to commit this offense? What if their purpose is to sell “properly labeled aspirin,” which they believe these bottles are?

  • Purpose of promoting or facilitating the actus reus of the offense, which is selling a drug that is mislabeled
  • Actus reus of conspiracy of an agreement
  • Had the mens rea otherwise required for the crime because there was no requirement because it was a strict liability crime
  • Mistake of fact about whether the bottles are labeled – might have conditional purpose which is legal, but can join that with a factual mistake and end up with the practical conclusion to sell the bottles and they turn out to be mislabeled but since it was strict liability, then still guilty of the crime
  • ***Pattern looks exactly the same as it did with incomplete attempts & solicitation***
    • But, the MPC takes the position for incomplete attempts that all you need is the mens rea required for the target offense and other inchoate crimes
    • But, with conspiracy, averted to this issue in a way they did with other inchoate crimes, they took no position of whether you need more mens rea for conspiracy than for the crime
    • What do you have to be guilty of with conspiracy to attack a federal officer if you don’t know he is a federal officer? One judge took the view that you couldn’t conspire to kill a federal officer if you didn’t know if was a federal officer but if you committed the crime, you could still be convicted of the crime of killing a federal officer. Thus, you need more mens rea for the conspiracy of this crime than you need for the actual punishment of the crime.
    • SC said it didn’t matter! Guilty of conspiring to kill federal officer. So MPC didn’t want to make a stance and just did not determine what culpability, also regarding the attendant circumstances, was required for conspiracy
    • Problem is, this is no different than it is for the other inchoate crimes! Attempting to kill someone and then find out that it is a federal officer. MPC says just need mens rea required for commission of the crime
  • When you see an issue about the mens rea required for any of the inchoate offenses, treat it the way we treat it with all attempts!!! Mens rea otherwise required for commission of the crime
  • Q all raise this issue and the issue is the purpose to promote the actus reus of the crime, then what mens rea you need for the circumstances is the kind of mens rea otherwise required for the targeted offense.
  • Notion of preventive detention: serious issue of public policy b/c there are people whose belief systems make them likely to commit a crime or seem like they could commit the crime
    • Inchoate crimes as a mask for preventative detention? Find something to punish them for
      • Conspiracy becomes a handy tool to charge dangerous people with to get them away from people
    • Civil commitment for people who are mentally ill and dangerous before they commit the crime
    • Criminal law has always been the choice for democracies, not preventive law
    • But can see this with gun control b/c of fear they will use them improperly – don’t wait to see if you use it improperly, just can’t have it at all
    • Like on airplane
    • Also like with sex offenders
    • Resurfaced idea with war on terror: use of inchoate crimes is a way of imposing preventive detention of people we view as dangerous, but in the guise of punishing them for past crime
      • Not what they have done, but what they plan to do
      • If we can’t use preventive detention of people, then pick various things that signify danger and makes those into crimes and then use criminal law to treat those as culpable actions


5. A and B agree to go riding in B’s car, which, unbeknownst to them, has defective brakes. Driving with defective brakes is the crime of “negligent operation of a motor vehicle.” Are A and B guilty of conspiracy with respect to that crime? What if their purpose is “driving a safe car,” which they believe B’s car is?

  • Negligent operation – strict liability otherwise negligent
  • Read as just negligent, then parties have to be guilty about negligent in respect to the brakes
    • Possible in that case that one could be guilty of conspiracy and the other one not
  • Can conspire to do something that would be negligent if you did it. Conspired to drive the car and forgot to check the brakes.


6. A and B agree to drive B’s car at 90 mph, a speed that they know is reckless with respect to killing or injuring someone. If they were to drive that speed and kill someone, they would be guilty of voluntary manslaughter or perhaps even murder. Are they guilty of conspiracy to commit those crimes? of conspiring to commit the crime of “reckless operation of a motor vehicle”?

  • Don’t have the purpose to promote or facilitate the actus reus of manslaughter or murder
  • Cannot conspire to kill someone negligently or recklessly
  • Can conspire to recklessly operate a motor vehicle; conspire to drive too fast b/c that is a conduct crime
  • But the result crime, can’t conspire to do something negligently or recklessly
  • BUT, unreasonable mistake about a defense – attempted negligent homicide, if you are intending to kill the person but you are negligent about your justification, if you tried to kill them, attempted negligent homicide. Mental state in respect to killing, negligence enters in by way of defense
  • Same true with solicitation and conspiracy
  • Flood – A & B think that there’s a flood threatening the town & to save the town, flood V’s farm. But it turns out that their belief is a negligent belief. If they were to flood V’s farm, they would be guilty only of negligently flooding. When they agreed to commit the act, the conspired to negligently flood the farm.
    • Only way you can conspire to negligently or recklessly bring about a result


7. P, an undercover police agent, “agreed” with D that D should enter V’s store with P’s help and steal some merchandise. P intended for D to enter the store and bring out some merchandise, at which point P planned to arrest D and return the merchandise to V. Is P guilty of conspiracy to commit burglary with D? conspiracy to commit unlawful entry? Is D guilty of these conspiracies?

  • P not guilty of larceny because P only has the purpose for D to commit the actus reus for burglary but P does not have the mens rea for the target offense, doesn’t intend to deprive V of her property
  • But if what p wants D to do is going to involve some sort of criminal harm to V, then P is guilty of conspiring to do that even if his ulterior motive is to arrest P
  • No defense for undercover cop – still conspiracy even if have a law enforcement motive
  • D would be guilty under MPC, but not under common law


8. Thelma and Louise buy a lottery ticket. Their odds of winning are one in a million. They agree that if they win, they will bump off their husbands and live as high-rolling swingers. Have they conspired to commit murder?

  • Doesn’t matter if it is highly unlikely, just because it is a conditional purpose, doesn’t change the legality
  • MPC doesn’t set the floor on how remote the condition has to be



PS 21, 22, 23, 24

MPC 1.03 – Territorial Application

MPC 2.06 – Liability for Conduct of Another, Complicity

MPC 5.01(3) – Conduct Designed to Aid Another in Commission of a Crime

MPC 5.04 – Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy


1. Big Louie has agreed with Colombian Carlos that the latter will send cocaine from Colombia to the U.S. by air, a violation of federal law. Fred and John agree with Big Louie to unload the cocaine at an airfield in Florida and put it in a warehouse, a violation of Florida law. Tex and Nevada each agree with Big Louie to take the cocaine from Fred and John, with Tex to distribute his share in Houston, Nevada to distribute his share in Las Vegas, violations of Texas and Nevada laws. Hank agrees to buy the cocaine from Tex to resell on the streets of Houston. Slim agrees to buy from Nevada to resell on the streets of Las Vegas. How many conspiracies are there in this case? Suppose Big Louie and Carlos have also agreed to bribe customs officials, and Fred and John are aware of this?

  • Chain conspiracy – distribution of some illicit item
  • D1 –> D2–> D3
  • Agreement between D1, D2, and D2, D3 – if you know you’re in a chain of distribution, can treat all of them and the whole chain as one conspiracy
  • Wheel conspiracy with a common hub in center of people – all in conspiracy with person in the center. If you can show that the parties in the chain that the success in that chains is dependent on the success of other chains, people on the outside of chain realize their conspiracy is interdependent with chain conspiracy on the inside
  • Why would the prosecutor want to treat two agreements as one?
    • That of venue – can bring trial wherever it is entered into – lots of choices as to where you can bring the trial
    • Hearsay rule – exception to not allowing it – when it’s a statement made by the D, then its an admission and accepted in ct
      • If P can make out a prima facia case that they are involved in the conspiracy, then any statement made out of court by any of those people is not just an admission by those people but an admission by all people in the conspiracy
    • In federal cts, if you are in a conspiracy, then you are automatically complicit in all of the crimes carried out within the conspiracy even if you don’t know about them simply by being in the same conspiracy (Pinkerton rule).
      • Now have a good incentive for making one conspiracy out of many b/c now have ability to pile on counts on people on the end of the chains


2. D1 and D2 agree on Monday to rob a bank on Wednesday. On Tuesday they agree to rob a second bank on Thursday if the haul from the first robbery is less than $50,000. Of how many conspiracies are they guilty?

  • Conditional purpose, second purpose – condition makes reference to a separate crime.
  • Two separate agreements; two separate agreements
  • 5.03(3) – person conspires to commit a number of crime, continuous and systematic, conspiratorial relationship
  • Usually applies to like the mafia or something like that. Could it be a continuous conspiratorial relationship if they just make multiple agreement? Not clear in The Code.
  • Conspiracy refers to “the agreement”
  • Treat temporally separated agreements as part of a single conspiracy with multiple criminal objectives


3. D1 and D2 agree to kill V. V, unbeknownst to them, has already died. Are they guilty of a conspiracy to murder?

  • Conspiracy to commit murder
  • All they can do is attempt murder but you don’t conspire to commit an attempt
  • Same way you don’t solicit an attempted murder
  • The fact that the crime is impossible doesn’t mean that you can’t conspire to commit the crime


4. D1 and D2 agree that they will seduce Lolita, who they believe is under 16. (Thus, they agree to commit what they believe will be statutory rape.) In fact, Lolita is 17. Of what crime are they guilty?

  • Conspiracy to commit statutory rape
  • Same as Q3


5. X has decided to commit a bank robbery. X asks Y to lend him Y’s car. Y agrees to do so. Y knows what X plans to do with the car and hopes X succeeds, but X doesn’t know that Y knows. Is there a conspiracy under MPC § 5.03?

  • X’s perspective:
  • Can have an agreement to lend a car but there is nothing criminal about that
  • From X’s standpoint, he’s just getting a car from Y, does not believe that he has entered into an agreement to have Y assist in a crime. To him, Y is just an innocent lender of a car; no criminal agreement
  • Y’s perspective:
  • Compare to first Q last PS
  • Y’s not going to think there is an agreement between them about the crime
  • No mutuality of understanding


6. Same hypothetical as #5, except that X is Y’s crime boss, X tells Y why he wants the car, and Y complies because he wants to please X (but is indifferent to whether X in fact commits the crime). Is there a conspiracy under MPC § 5.03?

  • X guilty of a unilateral conspiracy b/c entered into an agreement with Y to give aid in a crime & there is an agreement, X has the requisite mens rea of purpose. As long as X has an agreement with Y about aiding a crime, then X guilty of conspiracy even though Y is not
  • Y, on the other hand, is not guilty because he lacks the purpose
  • You have actus reus – that’s enough to get X, but Y lacks the purpose b/c he’s doing this not with the object that the crime be committed but because it was asked of him
  • Cts will usually fudge on the purpose requirement – strain as much as possible to find purpose from Y
  • Technically, Y would not be guilty but cts will fudge as much as possible
  • Lowered it from purpose to reasonably certain – lawful merchants who engage in a trade where criminals use their goods. Put merchants in a tenuous position


7. D1 and D2 agree that D2 will have intercourse with V, who they know is under 16. D2 also knows, but D1 does not, that V is D2’s daughter. Has either D1 or D2 conspired to commit incest, a crime that requires a mens rea of recklessness regarding relationship?

  • D2 obviously guilty – commit actus reus and purpose of committing actus reus
  • One way of thinking about it is that D1 is not guilty since the actus reus would be the same for both crimes, but doesn’t have the mens rea required for the incest
  • Another way to think about it is that D1 is guilty b/c he does have the mens rea required b/c the actus reus is that of statutory rape, he is taking an unjustifiable risk that V is D2’s daughter b/c always a chance that he can commit the offense
    • Same thing as being guilty of assaulting an officer
  • BUT – D1 is ultimately not guilty b/c you can’t punish someone of the same offense – even though D1 is committing a reckless act when conspiring with D2 because he is conspiring for an unlawful act, the crime of conspiracy to commit statutory rape already has factored within it the risk of it being incest and if you punished him separately for that, you would be punishing him for same illegal act.


8. D1 and D2 agree to kill V. D2 is legally insane. Is D1 guilty of conspiracy to murder?

  • Doesn’t matter that one is insane, D1 is still guilty
  • MPC says unilateral conspiracy so guilty
  • Insane person gets the defense and is not guilty of conspiracy but other party is still guilty


9. D1 and D2 agree to rob D1’s employer. D1 then has a change of heart and tells D2. D2 says he’ll do it alone. D1 calls the police, but the police arrive too late, and D2 succeeds. Is D1 guilty of conspiracy to rob his employer? What if D2 had robbed someone else instead, since D1’s help was essential in robbing D1’s employer?

  • Renunciation here but it didn’t work 5.03(6) – so still a crime
  • Conspiracy is a continuing crime, so it is still operative
  • Conspiracy is a continuing crime
  • 5.03(7)© – if an individual abandons an agreement, only
  • Doesn’t say not guilty of the conspiracy, just deals with statute of limitations
  • With solicitation, not enough to take it back, have to stop the person from actually doing it, likewise with conspiracy, have to stop the actual crime
  • Only get the renunciation of you stop the crime!
  • Merely cancelling your agreement doesn’t get you out


10. State X proscribes the sale of narcotics, but not the purchase of narcotics. D1 and D2 agree that D1 will sell D2 narcotics. Is D2 guilty of conspiracy to sell narcotics? Is D1?

  • D2 is guilty b/c he agreed that the actus reus of sale will be committed and done it with the intent
  • 5.04(2) – defense to solicitation, criminal act achieved not guilty under the common law
  • No law against purchase, then purchaser has defense against charge of conspiracy to sell b/c if sale occurred, can’t be guilty of purchasing
  • Purchasing is not a crime, selling is, can’t then make the purchaser guilty of conspiring in the sale
  • Bilateral transaction – asymmetrical treatment – reflected in solicitation and conspiracy
  • D1 is still guilty of conspiracy to sell


11. D, a jazz critic for a newspaper, who wants to hear P, a famous foreign jazz musician, play, buys a ticket to P’s concert. D knows P has been admitted to the country on the condition that he not perform at any concerts. Is D guilty of aiding P’s violation of the immigration laws?

  • Not guilty of soliciting him to perform by buying the ticket BUT BUT BUT!!
  • Mens rea: had the purpose to promote the actus reus of the crime
  • How could you defend him? Could say it didn’t really aid because it was superfluous
    • But redundant aid doesn’t matter, it’s still aid
    • Then everyone could get off!
    • The fact that the aid is redundant is going to get him off b/c then no one would end up being guilty
  • But – 2.06(6)(b) – If someone is performing a concert, which entails there being an audience, can’t make the audience complicit in the violation of the law
    • Sam idea with the sale of a good – can’t punish Y as an accomplice for selling a gun
    • Or making the selling of cocaine and crime but not the purchaser – can’t go through back door of complicity when legislature has closed the front door of the commission
      • In other words, statutory rape – girl is the victim – can’t make her guilty as an accomplice
    • If wanted to make audience members guilty, would have said it is illegal to perform AND attend the jazz concert


12. D sees P about to attack V. D wants to encourage P by his presence, so he strolls over near the imminent altercation so that P can see him, but he does nothing further but grin. Is he guilty of being an accomplice in P’s assault?

  • Yes, guilty
  • Has the mens rea otherwise required of promoting the actus reus of the assault
  • He performs an act of encouragement – any kind of conduct designed to motivate a person to commit the crime is encouragement
  • Purpose is to be seen so whether they actually see you is immaterial
  • Common law says you actually have to aid to be guilty of complicity in the crime


13. D knows that P is a prostitute. D rents P a room in D’s apartment house. Is D an accomplice in P’s crime of prostitution?

  • Not an accomplice, missing the purpose for P to commit the actus reus
  • In order to free merchants of dilemma of being an accomplice, require purpose to commit crime
  • Purpose is required, mere knowledge is not enough
  • But if D knows Ps a prostitute and charges inflated rent, then yes, guilty, b/c of financial interest


14. The Godfather asks Soldier to get him a gun. Soldier knows the Godfather intends to use the gun to kill Vinnie. Soldier complies with the request solely because he wants to please the Godfather. If Godfather kills Vinnie, of what is Soldier guilty? What if Godfather attempts to kill Vinnie but fails? What if Godfather does nothing?

  • Absence of purpose – no requisite mens rea – so can’t be guilty
  • 5.01(3) But once Soldier gives gun with purpose, guilty at least of an attempt to kill Vinnie
  • But guilty of murder if Godfather kills Vinnie
  • If GF attempts to kill V but fails, complicit in the GF’s attempt to murder so guilty of murder
  • GF does nothing, still guilty


15. The Godfather tells Solider to drive a certain car to a certain location. Soldier wants to aid whatever plan is afoot, but he doesn’t know what that plan is and is not told. Soldier figures that the car could be used for anything from a car bombing, a getaway from a robbery or killing, or a perfectly legal activity. Of what is Soldier potentially guilty? What if no crime is committed?

  • Ct held he didn’t have to know the plan as long as his purpose was to aid in the commission of whatever crime it was
  • As long as he is willing to aid whatever they are doing, he is an accomplice in whatever they do
  • Like having a blank check and whatever the Principal commits, he would be guilty off
  • But if GF commits no crime, still guilty of an attempt of the range of crimes he was willing to aid in
  • D doesn’t get linked to crime from causation – that doesn’t matter
  • Theory of complicity – when you align your purpose with the purpose of the principal, then charge you with crime as well; not a causal theory though – you don’t have to cause the crime to happen


16. D sees P hurl a missile at V. D is standing in the path of the missile, and if he doesn’t move, V won’t be hit, nor will D be harmed (he’s wearing protective armor). However, D, who knows V will be hit if he (D) moves, goes ahead and does so, though with no desire that V be harmed. V is hit by the missile and killed. Of what is D guilty?

  • Not guilty because he doesn’t have the requisite mens rea of desire to have V killed
  • What if he did have mens rea – failing to make him better off, but not making him worse off
  • Acting to aid or omitting to prevent? Still considered an omission
  • Keep mens rea and actus reus questions separate
  • Dif b/w affirmative aid and getting out of P’s way – if P would have succeeded without you, then getting out of his way can’t make you guilty
  • Are you assisting P or merely getting out of P’s way (not obstructing P)
  • If not obstructing, then not aiding and not guilty


17. D leaves gasoline for P with the purpose of aiding P burn down a building for the insurance. P doesn’t see the gasoline left by D, but instead buys his own gasoline. (Suppose buying gasoline doesn’t amount to a “substantial step” sufficient to be an attempt.) He burns down the building. Although P was unaware of it, V, a derelict, was sleeping in the building and was killed by the fire. A killing resulting from arson is homicide, even if it is unintended or unforeseen. What is D guilty of under the common law? The MPC?

  • Under common law – not guilty of anything b/c unused aid
  • MPC – guilty of being an accomplice of arson b/c it was his purpose
  • Guilty also of an accomplice to homicide
  • 2.06(4) – when causing a particular result is an offense, an accomplice in the conduct (the arson), you are an accomplice in the commission of the other offense (murder) if you act with culpability required
  • Don’t need 2.06(4) b/c covered in intro – acting with culpability sufficient in commission of the offense – actus reus of arson plus death and you have all culpability required for arson – need no more for homicide – then guilty
  • Whenever you aid any crime, and that crime plus some further result or circumstance changes the nature and you have the mens rea required for the element, you will be guilty
  • Deals with result crimes


18. D, who wants V dead, tells P that V has vowed to kill P as soon as he finds P. P believes this, later encounters V, andshoots V. P has a legitimate plea of self-defense. What, if anything, should happen to D?

  • D is guilty of murder as a principle since he had mens rea and actus reus and used P as an innocent instrumentality
  • P had mens rea but believed he had justification of self defense
  • Justification would not run to D, more like a personal one for P
  • Can be an accomplice even though Principal is not guilty of the crime under 2.06 (7). All that needs to happen is for the Principal to carry out the actus reus
  • If D’s advice was true but he didn’t know this, P would get justified self defense
    • Probably wouldn’t change D’s culpability, one who is unknowingly justified is guilty of the same crime
    • Di doesn’t believe in the facts that P believes in so D doesn’t get the defense of self-defense because he doesn’t believe the facts exist.
    • P gets the defense no matter what because he has a reasonable belief but D doesn’t get the defense because he doesn’t believe in the facts
  • 2.06(2)(a) – Innocent instrumentality for D


19. D, intending to get P arrested, urges P to purchase drugs. P does so and is arrested after D tips off the police. Is D an accomplice? Does it matter when D tipped off the police?

  • Solicited the purchase of drugs makes you guilty of soliciting and complicity in the purchasing of the actual drugs
  • Purchasing drugs is a victimless crime
    • Technically, D solicited the crime, wanted it to occur (grounds for solicitation and complicity) but the police frequently do this
  • Is this law enforcement privilege extended to private citizens who do the same thing?
  • D had actus reus since he encouraged P and had mens rea because his purpose was for him to purchased drugs
  • He has to tip off the cops before the commission of a crime
  • Termination of complicity
    • Must be prior to commission of offense and must wholly deprive his complicity of effectiveness in commission of offense or give timely warning to cops or make proper effort to prevent commission of offense
  • Question of how to terminate complicity if you attempt to aid
    • Even if your aid is ineffective, probably have to prevent commission of the crime
  • If complicity is based on encouragement, you probably have to let them know you are taking it back


20. D urges P to kill V. P tries to kill V but fails. Of what is D guilty? What if P does nothing?

  • 5.01(3) – Once you solicit someone to commit a crime, you will be guilty of attempting & soliciting that crime whether or not they attempted it
  • P is guilty of attempted murder. D is guilty of accomplice, solicitation, possibly conspiracy to attempted murder
  • If P does nothing, D would be guilty of solicitation and attempt (charged with attempt)


21. P and D agree that P will rob bank X. D does nothing else. P decides to rob bank Y, which is more heavily guarded. In the course of the robbery he kills a bank guard who tries to stop him, and in driving away at high speed he accidentally kills a pedestrian. P is charged with robbery, murder, and negligent homicide. Is D an accomplice in any of these crimes? Under the MPC? In a jurisdiction that follows the Pinkerton rule regarding conspiracy and complicity

  • Pinkerton rule- Common law
    • Party to conspiracy is responsible for any criminal act committed by an associate if it falls within scope of conspiracy or is foreseeable consequence of unlawful agreement
    • Merely by virtue of being a co-conspirator they are guilty of being an accomplice if scope of conspiracy or target crime or natural and probable consequence
    • He would probably be on the hook in Pinkerton since bank robbery is target crime and killing the bank robber and maybe even running over pedestrian is natural and probable consequences
    • D could argue that another bank was robbed which was more heavily guarded and so it wasn’t foreseeable for him to have to kill guard
    • He may not be guilty in murder since bank he wanted to rob was much less likely to have resistance by guards
  • Under MPC he probably would only be guilty for robbery, this was the only one he had mens rea and actus reus for, they reject Pinkerton
    • Robbing a different bank issue: (how does the actus reus of the principal match up with the accomplice’s actus reus imagined at the time, only comes up with complicity b/c actus reus must be committed?)
      • Identity of the bank – no clear lines on how close the actus reus has to be
        • Still a bank robbery
          • Get him for robbery
        • But different bank
          • Still convict him of attempting, conspiring, soliciting the robbery
        • So what matters? MPC not clear
      • You could maybe argue if it was his purpose for P to rob the bank and drive like hell to get out of there, you could maybe get him for reckless driving
    • Accomplice issue:
      • Merely being in conspiracy does not make you an accomplice under the MPC (2.06) – but D encouraged P, infer encouragement even from a passive solicitor, so he is an accomplice
      • Not an accomplice if you didn’t encourage or aid, whereas the Pinkerton makes you an accomplice by virtue of being a conspirator
    • Homicide issue:
      • Pinkerton: guilty of homicide b/c natural and probable consequence
      • MPC: P is liable for murder just if death occurs in armed robbery, then D would be liable for the murder as well
        • Complicit in the actus reus of the armed robbery & then strict liability element of murder makes him guilty of murder
        • Strict liability felony murder


22. D helps P start his car, which neither knows has defective brakes. Driving with defective brakes is considered negligent driving. Is D an accomplice?

  • To get D, you would have to show that D had purpose that P drive the car with defective brakes
    • Have to have the purpose that the actus reus be committed of driving the car (not the starting of the car)
  • Or if this was really a strict liability crime and driving with defective brakes is negligence per se, then he would be guilty
  • Collateral mens rea issues in 5,6,7


23. D purposely helps P seduce V, who, unbeknownst to either, is underage. Is D an accomplice?

  • If age was strict liability, D would be guilty
  • He has the mens rea for the target offense


24. D purposely helps P sell some aspirin. Neither knows that one bottle is mislabeled. Selling mislabeled drugs is a strict liability crime. If P is guilty of it, is D guilty as P’s accomplice?

  • D has to have purpose that P carry out the actus reus which he may have here
  • He also has to have the mens rea otherwise required
  • Guilty as an accomplice


25. D purposely helps P shoot a rifle at a shooting range by providing P with ammunition. D is unaware, but P is not, of the fact that there are children playing in the shooting range who are in danger of being struck. P is “recklessly endangering” in firing, and will be guilty of reckless homicide if a child is killed. Is D an accomplice in either crime?

  • He doesn’t have the mens rea because he is not consciously averting to a substantial and unjustifiable risk since he doesn’t know there are children there
  • May have the purpose that the principal shoots, he doesn’t have the mens rea otherwise required for reckless endangerment and reckless homicide
  • D, who wants V dead, tells I, who is insane, that V is a space alien who must be killed to save the world. I kills V, pleads insanity at trial, and is acquitted on that basis. Is D criminally liable for V’s death, and, if so, as a principal or as an accomplice? Would the result differ if I initiated the attack on V without D’s instigation, but D then took the opportunity to assist I? (One-half page)

26. D, who wants V dead, tells I, who is insane, that V is a space alien who must be killed to save the world. I kills V, pleads insanity at trial, and is acquitted on that basis. Is D criminally liable for V’s death, and, if so, as a principal or as an accomplice? Would the result differ if I initiated the attack on V without D’s instigation, but D then took the opportunity to assist I?

  • D is liable as the principal
    • Still innocent instrumentality
  • Purpose that the actus reus be committed, actus reus committed & kind of culpability otherwise required
    • Could also be guilty as an accomplice through the complicity theory b/c he purposely promotes the actus reus of murder and the principal carries it out
  • Depending on the theory, he could be viewed as the principal or the accomplice
  • 2nd part: D would be charged with an accomplice to murder because he didn’t instigate the attack


27. I, who hates O, suggests to O that D has been unfaithful. I hopes that O will become so consumed by jealousy that he will kill D and thus ruin his own life. O does just that. O is charged with murder. He claims provocation, which – as we shall see in a future class – will reduce murder to voluntary manslaughter if the jury finds it existed. If O is convicted of voluntary manslaughter on the theory that his killing was provoked, may I be convicted of being an accomplice to murder (not voluntary manslaughter)? Explain.

  • Guilty of murder through solicitation through the complicity theory
  • He has the purpose for O to commit the murder & the actus reus is carried out
  • This is an oblique solicitation in which the solicitee doesn’t know he is being solicited by the solicitor
  • He is being encouraged to commit the crime without knowing that he is being encouraged
  • The actus reus of his complicity is solicitation
  • Iago is not provoked so doesn’t get O’s defense
  • The actus reus that makes him guilty is his oblique solicitation
  • Can be innocent instrumentality by letter man delivering letter bomb – causal
  • Solicitation is just solicitation until there is a crime to be complicit in, complicity is not a crime, it is a way of being guilty of another’s conduct


28. P is shooting at V because, unbeknownst to D, V initiated and is continuing a deadly attack on P. D hates V, thinks P is trying to murder V (rather than defend himself), and helps P by loading her gun for her. If P kills V and successfully pleads self-defense, is D guilty of anything?

  • Unknowingly justified aider
  • Guilty of murder
  • Assisting with the actus reus of committing homicide and has the mens rea required
  • What if P was in fact trying to kill V for extraneous reasons & doesn’t realize he’s attacking him. Now, D knows that V is trying to attack him? D would get the defense of others justification but the person he is defending doesn’t get the justification


29. Cogan tells Leak his wife wants to have sex with him. Leak reasonably believes this and rapes Cogan’s wife who had never consented to any such thing. What result under MPC?

  • Cogan would not be guilty of rape but Leak, who gave him the bogus story about the wife consenting, is guilty of rape under 2.06(5) – a person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
    • ” unless such liability is inconsistent with the purpose of the provision establishing his incapacity:” this only would refer to the husband to the wife, not when it extends to the third party. Doesn’t extend to the rape through the agency of another


30. Analyze fake burglary which D thinks is real. Can he be complicit in burglary?

  • Q is not whether the principal has to be guilty of the crime, Q is did P commit the actus reus of burglary?
  • Enters with permission and doesn’t take any goods
  • All the D has to be complicit in to be guilty of the crime is the actus reus of the crime
  • On the hook for attempted burglary under 5.01(3).
  • Answer under MPC is not clear if you could get him for burglary


31. Mrs. Richards solicits two thugs to savagely beat her husband but they just commit a battery, not aggravated battery. What result under MPC?

  • 5.01(3) & 2.06(3) – attempting aggravated battery
  • Definitely guilty of conspiring and soliciting aggravated battery
  • Complicit in regular battery
  • Whenever soliciting someone to commit aggravated battery, you are soliciting someone for just simple battery too
  • She had the purpose of promoting simple as well as aggravated battery
  • Can’t get her for complicity in the aggravated battery because it didn’t happen but you can still get her for attempt


32. The legislature has made the sale, but not the purchase, of drugs a crime. D buys drugs from P. P is charged with selling drugs, and D is charged with complicity. What result?

  • 2.06(6)(b) – can’t make buyer of complicity in the sale even though he otherwise meets all the requirements of complicity
  • He DID solicit the sale but the offense is so defined that his conduct is inevitably incident to its commission
  • Bilateral transaction where the legislature treats the two sides differently
    • One party is more culpable that the other and so you can’t hold that second party to the culpability of the first


33. P has engaged in acts of incest with her son, D, who is grown. P is charged with incest. D is charged as P’s accomplice. What result?

  • Three possibilities
  • 1: both just guilty of incest
  • 2: neither is guilty
  • 3: child is considered the victim, in which case, 2.06(6)(a) – he is the victim of that offense
  • Designed to get at those cases where one of the parties in a voluntary transaction is considered the victim of the other party’s crime
  • Just like statutory rape – can’t charge S with complicity in D’s crime of stat. rape
    • She has aided in the commission of the crime but it would be perverse to make the victim of the crime guilty along with the criminal
  • Designed for cases that would otherwise qualify for complicity
  • But, another underage girl encouraging the sex could be complicit in the crime


34. D and P agree that P will commit armed robbery of a bank. P commits the robbery, and in the course of it kills V, a bank guard. P is charged with armed robbery and homicide. Is D chargeable as an accomplice in a state that follows the Pinkerton rule? The MPC?

  • Pinkerton – guilty of any crime within the scope of conspiracy and is the natural and probable consequence of the conspiracy
  • MPC – agreement was encouragement to commit the crime
  • Nothing about aiding or agreeing to aid but can infer from the agreement that they are both encouraging the thing they are agreeing upon
  • D guilty of conspiracy, solicitation, complicity in the armed robbery through solicitation (the encouragement).
  • If the homicide a strict liability crime, if armed robbery is stepped up to felony murder, then get him for the murder
    • If you don’t need any further mens rea on the death to step it up from robbery to homicide, then D has all the mens rea of robbery and death


35. D agrees to lend P D’s car to commit a robbery of a bank that D has described to P. D later has a change of heart and so informs P. P goes ahead and robs the bank without D’s car. Is D guilty as an accomplice under the MPC?

  • 2.06(6)(c) – unless otherwise provided by the Code or by law defining the offense, a person is not an accomplice in an offense committed by another person if he terminates his complicity prior to the commission of the offense and wholly deprives it of effectiveness in the commission of the offense or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.
  • The change of heart & then taking back the aid you gave would get you off the hook for complicity but still on the hook for the solicitation or attempt, just not guilty for the full crime
  • Had to thwart the success of the crime for the conspiracy or the solicitation but for complicity, you are off the hook
  • Don’t have to prevent the commission of the crime for complicity, only have to prevent it for the lesser crimes
  • On the hook for the full crime with complicity, but solicitation and conspiracy are not as severe
  • BUT, gave two forms of aid – took back the car but can’t take back the information – the description of the bank BECAUSE OF THIS, COULD BE GUILTY AS AN ACCOMPLICE TO ROBBERY





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