Criminal Law Outline 1L

Essential Supplements for Success in Crim Law:

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

Chapter 1-3

Punishment may not justly be imposed where the person is not blameworthy (3)

Violations & Infraction Minor misconduct; No incarceration.

Sixth Amendment – in all crim prosec., accused shall enjoy right to speedy and public trial, by impartial jury (4) proof beyond reasonable doubt

12 person jury who need unanimous decision. Some states allow subs maj

Punishment [Chap 2] loss of liberty; money/fine; capital punishment.

To compensate for the wrong done.

MPC 1.02(2)(a)&(b) deterrence and promote correction of wrongdoers


Retributivist – Backward [look to the act itself]

Strong – punish b/c they deserve it

Medium – if needed, then punish but not mandated

Weak – must punish but need forward looking reason

Utilitarianism – forward looking. Consequences for future

Jury Nullification – 5th Amend. Once verdict passed, no Double Jeopardy

Chapter 3 –Origins of Crim. Law. Common Law, Statutes, MPC


Chapter 4-6

Bill of rights – Limits Federal power (33)

14 – Due Process and equal protection; limits degree of force and evidence

8 – Cruel & Unusual punishment; what can be deemed criminal

Ex Post Facto Laws

Rule v Standard

Rule: a norm, the terms of which give the same guidance to everyone regardless of differences people may have in values etc.

Standard: more abstracted vague norm that requires evaluative judgment for those that are subject to norms.

Legality Doctrine Law cant be vague; must give fair warning of what they prohibit


Burden of Proof

Prosecutors have the burden to prove every element of a crime beyond a reasonable doubt

In certain circumstances the legislature may allocate to the D the burden of persuasion regarding “facts not formerly identified as elements of the offense charged”

Prosecutor has the burden of production regarding the elements of an offense, it is not required to disprove an affirmative defense unless there is evidence supporting the defense. 1.12(2)(a)

In regards to the burden of persuasion prosecutor must prove every element of an offense beyond a reasonable doubt,[element includes anything that negatives an excuse or justification]

Presumptions – mandatory or permissive

In Re Winship – Prosecutor must prove BRD every fact necessary to constitute crime charged.

Permissive Presumption [factfinder may, but not need to, find presumed fact upon proof of basic fact]

constitutional, but the link must be rational standard: more likely than not (51%+)

See Ulster County case [Variation 1 Problem 1]

Mandatory Rebuttable: requires a finding of the presumed fact upon proof of the basic fact, unless finding is rebutted by opposing party] unconst when presumed fact is element of crime charged

Sandstrom Case cannot shift burden of mens rea to D b/c its element of crime [var. 2]

Mandatory rebuttable [rebut evidence] better than affirmative defense [prove defense]

Ex. Of Unconst Mullaney Case [violated Winship doctrine] in prob set answer

Mandatory Irrebuttable: UNCONSTITUTIONAL when applied to a element of the crime

EX – upon proof that D fired loaded gun at V, you must find D intended to kill V

Affirmative Defense: (MPC 1.12(2) &(3) AND Patterson Case in prob Set answer)

D has to prove affirmative defenses by a preponderance of the evidence

Prosecution has to disprove any defense by defendant that has satisfied her burden of production.

The challenge is in deciding if a particular fact relates to element of the crime or an affirmative defense

MPC: Section 1.12 Proof Beyond a Reasonable Doubt; Affirmative Defense; Burden of Proving Fact When Not an Element of an Offense; Presumptions

MPC DOES NOT recognize Mandatory presumptions. (83)

1.12(1) Each element of an offense must be proved beyond a reasonable doubt

Affirmative defenses under (3):

Arises under a section of the Code which so provides; or

It relates to an offense defined by a statute other than the Code and such statute so provides; or

It involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence

When the application of the Code depends upon the finding of a fact which is not an element of the offense, unless the Code otherwise provides:1.12(4)

Actus Reus Requirement: voluntary act or omission must cause social harm

Includes three ingredients of a crime:

(1) voluntary act (2) that causes (3) social harm

Voluntary act element of a crime, not an affirmative defense [Habitual & Brainwashed Acts]

Any willed physical or mental act, prosecution may have permissive presumption that act was voluntary and D has burden of production that act was not voluntary (?)

An “act” is a muscle contraction; Multiple personalities is no excuse

Usually a person is not guilty of a crime unless her conduct includes a voluntary act

Cannot punish someone for a status crime (being an addict)

See Question 1 B/c of St. Vitus dance, lacked voluntary act.

Time framing (arguably an exception to the requirement)

Involuntary acts can satisfy the requirement if the time frame is expanded to incl a voluntary act. [person w/ epilept seizures voluntarily choosing to drive]

Crime of possession [Inchoate/incomplete] Don’t dispense with voluntary act requirement

Courts interpret possession statutes to require proof that D knowingly procured or received the property possessed or that she failed to dispossess herself of the object, after she became aware of its presence

Omission General rule: NO DUTY TO PREVENT HARM

When there is a common law duty to act, D’s omission assuming that she was physically capable of performing the act, serves as a substitute for a voluntary act

When there is a duty to act:

Status relationship; Contractual obligation; Implied or express contract; Babysitter; Omission following an act; Creation of a risk

A person who wrongfully, or perhaps innocently, harms another or her property, or who places a person or her property in jeopardy of harm, has a common law duty to aid the injured or endangered party

One who voluntarily commences assistance to another in jeopardy has a duty to continue to provide aid, at least if a subsequent admission would put the victim in a worse position than if the actor had not initiated help


MPC: Section 2.01Requirements of Voluntary Act; Omission as Basis of Liability; Possession as an Act

usually no duty to act exception: where cause the victim’s peril & can effect easy (safe) rescue

Knowing Homicide: burden of proof BRD of mindset is on the prosecution

1. Factual predicate of Duty to rescue

2. Legal duty to rescue

3. V will drown unless rescued.

4. Can save V without undue risk or burden to self.

Individual A:

A has duty to act b/c caused V to fall A’s negligence caused risk & created duty to act • A has duty to act unless it endangers himself or undue peril [Neg. Homicide]

if A didn’t realize that he caused V to drown negligent homicide not also knowing.

A need only know of factual duty not legal duty to save. Ignorance of danger neg,

A must know he can save V w/o undue risk or burden to self.

if A thought he could rescue V (but he actually could not have) but failed to rescue V, A is guilty of only attempted homicide (not knowing homicide) b/c V would have died anyway A is still guilty of negligent homicide even if negligent of death

Individual B:

B is non-culpable risk creator b/c B is not at fault for V drowning.

B was only causal –except if B doesn’t know V is drowning (and no negligent act no liability for anything baseline liability is zero – didn’t knock V in

Individual C:

Lovers are not of a formal legal status unlike husband/wife

Must look at interdependence of relationship

Individual D:

D is imperiling b/c inducing (a) V to get in pool or (b) all others to relax b/c they are relying on him consider his responsibilities w/respect to others’ beliefs (if he knows of their beliefs)

Individual E:

If he answers yes to all the questions of knowing then yes, knowing homicide.

Contractual duty as a lifeguard. Not a contract with V but a contract to perform the duty to saving those drowning. pool owner still has a reliance on E

so E imperiled V b/c there would have been another lifeguard who would have done the job right doesn’t matter if V knows that E has a duty.

Individual F:

creates more risk b/c by giving life preserver, people would believe V is ok and turn away but V isn’t any worse off? But if V was worse off by commission and then omission, F is guilty of negligent homicide?

Individual G: the law does not require one to be a good Samaritan

most important: what are the various element req’d (& need to be proven)-what was mental state that statute req?

Actus Reus: 1) Conduct 2) Result 3) Circumstance What mental state required for each of these elements?

There is no probability floor in purposefully bringing about a result. If that was your conscious object, even if you thought your odd was against you, does not change the fact that it was not done purposefully. [Jackal Problem]

Anything that happens was, given all the circumstances, a 100% certain. [even if low probability prior]

No matter how remote the result is going to be, if it is the actors conscious object to bring about the result then is it is his purposeful intent to do so

MPC does not state that there has to be 100% certainty.

The actor acts in conscious manner – where the risk is substantial and unjustifiable – reckless

If you cross the practical certainty line, then its knowing. [90-100%]

2.02(6) Conditional

an element of an offense is established although such purpose is conditional, unless the condition negatives the harm and turns out to be a non-crime [self-defense]

Purpose is justifiable – if the condition would make the purpose legal, then it is justified.

As long as there is any chance that person will resist the condition, you are criminally responsible for your actions. In all cases, the (P) has to prove beyond a reasonable doubt there was no bluff

1. purpose (conscious object to cause something)

a. can be conditional (e.g. Thelma & Louise, et al) one of the elements of a crime is the purpose of committing a future crime

such a crime: criminal conspiracy based on intent: burglary & criminal conspiracy

b. need only slight increase in background risk (e.g. Jackal)

• irrelevant even if circumstances making death are virtually impossible – intent still exists

• only need to be conscious of improving chances of a result even if there’s only a minute change

fiction of “intentional killing” by single act: attempted intent of a specific person; reckless killing on another person

2. knowledge

a. belief in a practical certainty

b. on same continuum (of belief in probability) as recklessness

c. problem: know all fact but have odd metaphysics (e.g. “spirit”)

• MPC 2.02 (7) req. of knowledge satisfied by knowledge of high probability

d. problem: willful blindness – knowledge or recklessness?

3. recklessnessrisk believed in must be substantial and unjustifiable

a. justification (or lack) built into definition (unlike knowledge) – query: burden of production on D?

if any chance that a crime is being committed, a person is taking an unjustifiable risk

the greater the possibility, the better the justification better be

• willful blindness (f/CH 11?)

• willful blindness is a fiction design to get a people who are reckless (in a certain way)

• but willful blindness = recklessness [ignorance that could have been prevented

c. whether risk D believes exists is “substantial” or “unjustifiable” is a matter of law, not a matter of D’s own characterization – based on actions not beliefs [matter of law]

e.g. believe 80 MPH when actually 55 [actual risk can still be zero]

• “substantial” risk does not do any work at all; “substantial” risk is not necessary- it all relies on “justifiable”

difference b/w knowing and reckless –when reckless, prosecution has burden of poof (reckless — substantial & unjustifiable risk)justification is an element of reckless crime, not a knowing crime

when knowledge w/justification, BOP on D b/c affirmative defense (knowing – practically certain)

4. negligence

the negligent actor is one who fails to avert to a risk that a reasonable person would have averted to

the negligent actor underestimates risk that a reasonable person would assess


Purposeful: a person acts purposely with respect to a material element of an offense when:

If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; AND

If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist Conscious object of actor

Likelihood doesn’t matter. You just have to increase the odds of occurrence by a finite amount and have the conscious object to carry out the result. Day dreaming about it is not enough, there must be an act.

Conduct or result: Conscious objective to engage in the conduct or to cause such a result.

Attendant Circumstances: Aware of such circumstances or believes or hopes that circumstances exist.


Transferred Intent: Purposeful homicide if you kill a person believing him to be another. If you miss and hit other, you would be guilty of attempted homicide of the one and reckless homicide of the one you hit.

Killing Ghost:

You may have purpose to kill ghost but not human being. Not knowing or reckless either. Maybe negligent in believing it was a ghost. Not knowing the law will not get you off for knowingly. If you don’t know you are committing the act you aren’t acting knowingly.

Knowing: a person acts knowingly with respect to a material element of an offense when:

If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exists; AND

If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result

Practical certainty is the standard. Similar to reckless but the risk is almost 100%.

Conduct or circumstances: Aware that conduct is of that nature or that such circumstances exist.

Problem of ‘Willful blindness’: purposely avoid learning that suspicions are correct.

§2.02(7): Knowledge is established if a person is aware of a high probability of circumstance’s existence, unless he actually believes that it does not exist.

Result: Aware of practical certainty that conduct will produce such a result.


Reckless: a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation

Substantial and unjustifiable risk – matter of law not a matter of D’s own characterization

God’s eye view of risk

Actual risk doesn’t matter. What matters is that there is a substantial risk the actor believes he is taking. It is a matter of law whether the risk was justified.

if any chance that a crime is being committed, a person is taking an unjustifiable risk

the greater the possibility, the better the justification better be


Belief of risk: Every time a person is trying to create a risk but is unable to create it he is reckless (driving 55mph thinking you are going 88mph). We punish people for the risk they have in mind.

Attempted Recklessness: Drunk person who turns key but passes out before he puts the car in gear.

Reckless if you are attempting to bring about the risk, attempted if you are attempting to bring about a harm. Neither results in the harm.

If you are en route to commit a crime, you are reckless. Not justified no matter what. Drive to kill V at his house but kill him in accident unintentionally.


Negligence: a person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation

Should be aware of the substantial and unjustifiable risk. Reasonable person standard used. Actor should have recognized the risk.

Culpability is independent of result. Williams case: They would still be guilty if the baby survived. Can they be deterred, are they culpable?

should people like the Williams be punished? Is negligence culpable?

the negligent actor is one who fails to avert to a risk that a reasonable person would have averted to

the negligent actor underestimates risk that a reasonable person would assess


Minimum requirements of culpability: Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense

Strict Liability — conviction in the absence of mens rea.

Types of Offenses:

Public Welfare: Deals with prohibited conduct, wrong therefore.

Not morally wrong but affects the health, safety and welfare of public. Courts may authorize strict liability.

Traditional offenses:

Common law crimes: Felony murder.

Statutory crimes.

Statutory Rape:

Requires that V is underage, doesn’t matter what D believes.

Design of the doctrine is to punish a lot of the guilty people and deter others but will likely ensnare some people who are not culpable. Might be viewed as an irrebuttable presumption of culpability. Guilty will not walk.

Taking Reasonable Care: Doesn’t help out under strict liability as long as you commit the act.

Voluntary Act: Every strict liability crime requires a voluntary act. They need not be culpable.


Attempt to commit one crime and it turns out you commit a more serious crime (rob business that turns out to be residence).

When you attempt the crime it is like you win the lottery of a stiffer sentence if the unexpected occurs.

The risk is not justified. Makes committing the crime more dangerous. Could achieve this the same though by just making the base crime punishment greater.

Rationale: Courts would be overwhelmed if they had to prove the mental state of every unsafe driver.


Model Penal Code:

§2.02: Notes explicitly rule out strict liability in the penal law.

§2.05: Exception for ‘violations,’ which only result in fines.

Mistakes of Fact: Unconscious ignorance of a material fact; no mens rea.

Strict-liability offenses: No defense. By definition, no mens rea.

Specific Intent Offenses:

Specific Intent portion: Mistake serves as a defense.

General Intent portion: Apply rule used on general intent offenses.

General Intent Offenses:

Rules used in common law to make decision:

Reasonableness of Mistake.

Moral-Wrong Doctrine: Actor’s moral culpability on the basis of his blameworthiness for making the mistake. (departure)

Legal-Wrong: Replace ‘moral’ with ‘legal’. Assume risk that he conducted the more serious offense.


Culpability Requirement Will be negated by: In terms or reasonable and unreasonable mistake, will be negated by:
Purposefully Any mistake Any mistake.
Knowingly Any mistake Any mistake (reasonable or unreasonable)
Recklessly A negligent or faultless mistake. An unreasonable (negligent) or reasonable mistake.
Negligently A faultless mistake. A reasonable mistake.
Absolute Liability No mistake. No mistake.

Purpose: Not necessarily negated by any mistake. Wrong in the chart having to do with results. Jackal Example: Didn’t believe his shot would hit De Gaul but still acted with the purpose. Mistaken belief but still hoped it would hit him. If that is what he hopes to do he is guilty.

Different if talking about conduct. Cannot be mistaken and purposeful in his type of conduct.

Knowingly:Chart here is correct, if you didn’t believe it than you didn’t know it.

Recklessly: Must be aware that the risk was at a certain level and not be justified in proceeding.

Negligence: Must be a mistake that a reasonable person would make in their place, a non negligent mistake.

Important things to know about mistakes is that they are not defense but just denials of mental states and that everything you could learn from them could be found in MPC 2.02 in definitions of mental states.


Model Penal Code §2.04

Follow the “element approach” under §2.02.

§2.04(1)(a) — Defense if it negates the mental state required to establish an element of the offense.

General or specific intent is irrelevant.

Exception: §2.04(2)

Not available as complete defense if situation believed by person is still a crime.

Found guilty of lesser crime to insure proportionality.


MPC §2.04(2): Mistake is not a defense if the person would have been guilty of another offense had the situation been as he opposed.

No swan dead, look at the degree in homicide equivalent to in punishment to swanicide had the situation as he supposed. If you cause a lesser harm than what you would have caused had it been as you supposed use attempt (MPC §5.01).

Regina v. Morgan: Ds, three men, convicted of forcibly raping V, X’s wife. X invited them to have sex with her and not to worry if she struggled because it was her way of getting turned on. Not guilty if Ds negligently (unreasonably) believed there was consent. Court found that the minimum level required is reckless mental state.

U.S. v. Short: Man tries to rape Japanese girl and claims that he thought she had consented to sex. Court here held that D is guilty if he makes negligent mistake concerning the consent of the girl.

D intends to have sex with consenting V

V is consenting (mistake)

D intends to have sex with V (who is not consenting)

Mistakes of Law — generally, ignorance of the law is no excuse

There is typically no mens rea capable of being negated by an actor’s ignorance or mistake of law because it is ordinarily not an element of the offense to know the law.

Mistake of jurisdiction: treated the same as mistake of law, strict liability mens rea.

Exceptions to the General Rule:

Supreme Court in Cheek v. U.S. said that there should be an exception in cases where a person is not aware that his conduct is criminal. Case where person failed to pay income tax because he didn’t think he needed to. Usually strict liability as to awareness to criminal conduct you have engaged in.

Fair Notice and the Lambert Principle:

Lambert v. California: Under very limited circumstances, a person who is unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that offense. Crime for an ex-felon who failed to register. Rationale is that is unfair to punish a person for living in an area where it wasn’t apparent living there was criminal. Boils down to that in some cases that the criminal law is so out of the ordinary that we don’t expect everybody to know it. Violation of due process of law. Three aspects of case:

Punished an omission (failure to register)

Duty to act was imposed on the basis of a status (presence in LA) rather than on an activity

Offense was malum prohibitum

Model Penal Code §2.04(3) — generally does not recognize defense.

MPC §2.04(3)(a) — Fair Notice

Unless definition of a crime so provides, neither knowledge nor recklessness or negligence as to whether conduct constitutes a crime or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense. If material element of crime requires knowing law, you can use ignorance as a defense.

MPC §2.04(3)(b): Reasonable Reliance Doctrine

Person’s belief that her conduct is lawful constitutes a defense if: She relies on an official, but erroneous, statement of the law.

The statement of law is found in a statute, judicial decision, administrative order or grant of permission, or an official interpretation by a public official or body responsible for the interpretation, administration, or enforcement of the law; and

The reliance is otherwise reasonable.

MPC §2.04(1)(a) — Same as mistake of fact. Defense only if it negates a material element of the offense.

Knowledge as to offense is not usually a material element.

MPC §2.04(3): No defense it the actor claims he didn’t know the law: Exceptions:

Actor didn’t know about law and it was not published or made reasonably available to him.

Relation of Act to Intent [No Mechanical Principles to determine Causation.] Cause-in-fact — Actual Cause:


Sine qua non: But for D’s voluntary act would the social harm have occurred when it did?”

Substantial Factor: Was D’s conduct a substantial factor in bringing about the forbidden result? Result includes “but for” causes and more. (i.e. despite action of another)


Normal events or circumstances that, although necessary for the result to occur, do not positively contribute to it. Ex. is person’s weakened heart accelerated death from gunshot.

Not a Cause: Although it meets the sine qua non test, it is not a cause. Common sense view dictates this.

Mens Rea and Causation: Once can exist without the other. Exceptions and examples:

Intervening act: guilty if substantial contribution, not just sole.

Responsible for chain of natural causes.

Subsequent injury by another: both parties can be found guilty.

Proximate Cause — Legal Cause

Must show that act and harm are sufficiently closely related.

Direct Cause: If there is uninterrupted causal link btwn act and harm, then it is the proximate cause.

Intervening Causes:

Result must be foreseeable or substantial caused by the act.

Intended consequences can never be too remote.

Causal responsibility ends when the danger from the original actor’s conduct has effectively terminated.

Free, deliberate, and informed” intervention ends causation.

Proximate Cause v. Intent: Intent decides degree of crime while proximate cause determines if you can be held at all.

Causation without Mens Rea:

D and V get in fight and V runs across the street and is hit by X’s car. D is not guilty because:

D was not only cause of harm, V and X contributed.

D did not pose culpable state of mind.

Mens Rea without Causation:

D1 intending to kill V shoots and misses him and at the same time D2 shoots and kills him accidentally. D1 intended the harm but did not cause it and is not legally responsible.

Model Penal Code §2.03

Actual Cause: “But for” Test adopted in §2.03(1)(a).

Substantial Factor Test rejected in comment.

Proximate Cause [dumped by the MPC] Two tests to determine requisite culpability

Non-strict liability §§ 2.03(2 & 3)(b)

Strict Liability: Causation “is not est unless actual result is a probable consequence of the actor’s conduct.” §2.02(4)

**BASIC DEFENSES: “justifications” & “excuses”


(1) objective justification”:given what is in fact true, what would ordinarily be a criminal offense, is no longer an offense – [essentially, an exception to offense!]

*burden of proof: if viewed as an exception, D must prove exception, b/c it’s a defense (in most states, but MPC treats absence of the exception as an element of the offence & BOP is on P)OBJECTIVE

(2) subjective justification: D’s belief in (1)

Problem:A has toy gun and B reasonably believes it is real. B is justified in using force even though mistaken. A is not justified in fighting back because B is justified.


Justification”Its like proving “it was the right thing” applies to 3rd party help. Conduct otherwise criminal, which under the circumstances is socially acceptable and which deserves neither criminal liability nor censure.


Excuse”:you don’t claim what you did was right. . . you claim what you did was not blameworthy for some reason (insane, intoxicated, etc. – something excuses you – “nonetheless”) – PERSONAL


*MPC:“privileged” = justified, not excused

*3rd parties cannot come to the aid of an “excused” person – excuses are personalized

***SELF-DEFENCE is always preemptive (always acting before the act you’re trying to prevent – opposite of retaliation)


Reasonable belief in necessity. An honest and reasonable is enough, even when it turns out that the belief was wrong and there was no need.

Threatened harm imminent. Must reasonably believe that the threatened harm would be inflicted immediately if self-defense was not taken.

Threatened harm unlawful.

Reasonable force. Must not be greater than appeared necessary under the circumstance to prevent the victim from inflicting the harm.


Person who is attacked in mistaken self-defense is justified in fighting back against one who is excused not justified.


is affirmative defense in most states so that D must prove the justification by a preponderance of evidence. MPC is different in this aspect [P must prove] .

If you reasonably believed that you had to use self defense you are justified. But if you were mistaken as to the force of another but you were reasonable in your mistake of the attack, there is a division among the theorists of criminal law.

Lesser Harm Theory: Authorizes conduct when interests of D outweigh those of the person he harms.


MPC:Takes notion that justifications are exceptions seriously to the point that the prosecutor must prove that the defendant did not have a justification. Prosecution would be aided by permissive presumption that the justification is absent if the defendant does not bring evidence to claim it.

MPC: “can’t engage in preemptive strike until it’s immediately necessary to do so” – when is that??? *acting when it’s immediately necessary, still entails acting in uncertainty – must be a threshold of probability above which we can act!

D is entitled to be acquitted if her mistake of fact was reasonable. D is justified, not excused, in using deadly force if she reasonably believed she was in imminent danger.

Deadly force: Must reasonably believe that the other was about to inflict death or great bodily injury and that deadly force was necessary to prevent the harm.

Retreat: Duty to retreat before the use of force. No duty where retreat cannot be done safely, or where the attack takes place in the defendant’s own home.

Aggressor’s Right to Defense:

Nondeadly aggressor may use reasonable force to repel deadly force.

Regain right to self defense after withdrawing from the altercation.

Reasonable: What reasonable person would do in the D’s situation.

Battered Women’s Syndrome: Expert testimony admissible for such claims.

Model Penal Code §3.04 — Use of force in self-protection.

General Rule: Justified in using force if he believes that such force is immediately necessary to protect himself against the use of unlawful force on the present occasion. §3.04(1)

Subjective belief: Belief need not be “reasonable.”

Immediately necessary”: Not imminence, allows earlier protection.

Deadly force

Unjustifiable unless necessary to protect from (§3.04(2)(b)): death, serious bodily injury, forcible rape, kidnapping

Impermissible Use: Never usable by aggressor OR If avoidable through retreat.


Definition: Generally, a person is privileged to use such force as reasonably appears necessary to defend herself against an apparent threat of unlawful and immediate violence from another.


Reasonable belief in necessity. An honest and reasonable is enough, even when it turns out that the belief was wrong and there was no need.

Threatened harm imminent. Must reasonably believe that the threatened harm would be inflicted immediately if self-defense was not taken.

Threatened harm unlawful.

Reasonable force. Must not be greater than appeared necessary under the circumstance to prevent the victim from inflicting the harm. proportional

Deadly force: Must reasonably believe that the other was about to inflict death or great bodily injury and that deadly force was necessary to prevent the harm.

Retreat: Duty to retreat before the use of force. No duty where retreat cannot be done safely, or where the attack takes place in the defendant’s own home.

Aggressor’s Right to Defense:

Nondeadly aggressor may use reasonable force to repel deadly force.

Regain right to self defense after withdrawing from the altercation.

Reasonable: What reasonable person would do in the D’s situation.

Battered Women’s Syndrome: Expert testimony admissible for such claims.

Model Penal Code §3.04 — Use of force in self-protection.

General Rule: Justified in using force if he believes that such force is immediately necessary to protect himself against the use of unlawful force on the present occasion. §3.04(1)

Subjective belief: Belief need not be “reasonable.”

Immediately necessary”: Not imminence, allows earlier protection.

Deadly force

Unjustifiable unless necessary to protect from (§3.04(2)(b)):


Serious bodily injury

Forcible rape.


Impermissible Use:

Never usable by aggressor.

If avoidable through retreat.

Defense of Property:

General Rule: Person is justified in using nondeadly force if he reasonably believes such force is necessary to prevent imminent, unlawful dispossession of property.

Necessity for the Use of Force: No more force than reasonably appears necessary.

Elements: No force permitted until person has sought to avoid physical conflict by requesting desistance by would be dispossessor. No request necessary when futile or dangerous. No force permitted beyond which the urgency of occasion reasonably requires.

Deadly Force:Never permitted in defense of property even if it is the only way to prevent a loss. However, right to use force to defend property may be transformed into right to use deadly force. D uses nondeadly force to stop V from stealing and V responds with deadly force. Two exceptions for DF:

Dispossessing of a Dwelling: May use deadly force if he believes that:

The intruder is seeking to dispossess him of the dwelling; has no claim of right to possession of the dwelling; and is immediately necessary to prevent dispossession.

Prevention of Serious Property Crimes:Person may use deadly force in protection of property interests inside a dwelling or anywhere else if he believes:

other person is attempting to commit arson, burglary, robbery, or felonious theft of property destruction; Such force is immediately necessary to prevent commission of the offense; and

Either the other person previously used or threatened to use deadly force against him or another person in his presence, or use of nondeadly force to prevent commission of the offense would expose him or another innocent person to substantial danger of serious bodily injury.

Threat to Use DeadlyF: Prevailing position is that person cannot threaten what he isnt permitted to do.

Claim of Right: Person may not use force against dispossessor who he reasonably believes has a claim

Recapture of Property: Usually not permitted in order to discourage consequent breaches of peace. One exception is that a person who acts promptly after dispossession may use nondeadly force.

Spring Guns:Prohibited to protect property if it is intended to cause, or is known to create a substantial risk of causing death or serious bodily injury.

Person may use nondeadly force to prevent or terminate an entry or other trespass on land or to prevent carrying away of personal property, if he believes three conditions exist:

The other person’s interference with the property is unlawful;

intrusion affects property in the actor’s possession, in possession of someone else for whom he acts; and

Nondeadly force is immediately necessary.

Impermissible Use of Nondeadly Force:

Person may not use force to prevent or terminate a trespass if he knows that to do so would expose trespasser to a substantial risk of serious bodily injury.

When two people believe they have a right in the property the MPC requires that the first dispossessor allow the other to recapture it if the other’s recapture is otherwise justifiable.

Force to Protect Property/Force in Law Enforcement (MPC §§3.04, 3.06, 3.07)

MPC §3.06(3)(d)(ii): Can use deadly force if person is attempting to commit or consummate felony burglary. Actor must believe this. If belief was negligent, he could be prosecuted for negligent homicide.

Must request desistance before you are justified in bringing force.

Shoot without warning: No request if D believes it would be useless, dangerous to himself or others, or substantial harm would done to property. MPC §3.06(3)

Tennessee v. Garner: V shot by P when fleeing. Officers violated the 4th amendment, not justified in using deadly force to ensure arrest because they knew he posed no threat.

Law Enforcement:

Deadly Force: MPC §3.07(2)(b). P must believe or have been told about it or know that V used deadly force.

Preventing Suicide: Force is justified. Deadly force not justified unless it poses a danger to others.

Spring Gun: MPC §3.06(5)(a): Not justified if device creates risk to cause death.

Assistance to police:

Asked by officer: Same privileges as the officer since you are required by law to comply with officer’s orders. Otherwise, aiding law enforcement removes criminal intent, but other liability remains intact.

Effectuating arrest:

Police Officers:

Nondeadly force: Whatever necessary to make an any arrest.

Deadly force: If suspect has committed a dangerous felony or presents a significant risk of harm to others.

Private citizens

Deadly force: limited to forcible or atrocious felonies.

Notice: Must give notice of intention to arrest.

Deadly force: Must have actually committed a felony; no guesses.

Model Penal Code § 3.07 — “Use of Force in Law Enforcement”

Authority to Arrest: see § 3.03 — “Execution of Public Duty”

Use of force, in general, is justified if: (3.07(5)(a))

Belief regarding Criminal is:

is about to commit suicide;Cause serious bodily injury to self ; A crime involving or threatening bodily injury; Damage to or loss of property; Breach of the peace.

Force is immediately necessary to prevent commission.

Deadly force is justified only if:

Substantial risk exists that criminal will cause death or serious bodily injury to another person unless she is prevented.

Use presents no substantial risk of injury to bystanders.


Reasonably believe that: Threat of imminent harm to himself or others exists; and Only way to prevent the threatened harm is to violate the law.

Not at fault for creating the emergency situation.

Harm caused by violation of law is less serious than harm being avoided.


Emergencies created by natural physical forces.

Economic necessity” is not a defense to theft.

Not applicable to homicide cases.

Model Penal Code § 3.02 — “Choice of Evils”


Conduct was necessary to avoid harm to self or to another;

Harm to be avoided is greater than unlawful harm caused;

No legislative intent to exclude the conduct exists.


Imminence requirement is rejected.

Creation of emergency situation is rejected.

Applicable in all situations, including homicide.

Allows legislatures to make value judgments.


Motive: The law doesn’t require actor to have the right motive to have justification. Hostility makes no difference.

Must believe conduct is necessary to avoid a greater harm.

Binary Choice (More than one lesser evil):

MPC requires a lesser evil but not the lessest evil.

Resist: Person who may be harmed by the lesser evil cannot resist the actor because he is justified unless V’s conduct could result in the lessest evil. D wants to flood V’s farm, V can only resist if going to flood vacant lot and not town.

Third Party: Can give assistance to actor if he knows the situation even if the actor doesn’t know the situation. Help D flood V’s farm even if D doesn’t know about town.

MPC §3.02(2): No justification but actor would want to bring about lesser harm in order to limit his own liability. If he knows about harm and fails to act, he would be guilty of knowing. If he fails to act and believes he is negligent cause but is not negligent cause, he would be guilty of attempted knowing homicide.

Means vs. Byproduct:

*Byproduct: Death is not necessary for plan to succeed, just a byproduct. Runaway trolley, switch tracks which may kill one but save five. Justified.

*Means: Person must die or plan doesn’t work. Surgeon kills healthy patient to use organs to save five others. NO

Duty: If you have duty to one person that you must kill for lesser evil, you still are justified in killing person you owe duty to because of the many lives you will save.

Qualitative Judgments: MPC is open to qualitative judgments. Probably justified in saving five criminals and killing Mother Teresa but MPC is open to the quality vs. quantity judgments. May need to do what is morally preferable even if it means breaking the law.

Legislative Purpose (MPC §3.02(1)(c): If a statute has been made, it is a pretty good indication they don’t want it interfered with. Sometimes exceptions aren’t stated just because people could abuse them.

Three limitations:

Some states limit the defense to emergencies created by natural forces.

Defense may not apply in homicide cases

Some states limit the defense to protection of persons and property. (not economic or reputation)

Civil Disobedience: Nonviolent and deliberately unlawful act that has as its purpose to protest a law, government policy, or action of a private body whose conduct has serious public consequences.

Duress or coercion: [Elements]

If person or family is threatened with death or serious injury.

Reasonably believe that the threat is real.

Reasonably believe that succumbing is only way to prevent threat.

Not at fault for being in the coercive situation.

Coercion from natural sources is not acceptable.

Model Penal Code § 2.09 [Elements]

Coerced by use, or threat, of unlawful force against self or other.

Person of reasonable firmness would have been unable to resist the coercion. § 2.09(1)

Exception: If person negligently placed themselves in the situation. 2.09(2)

Person of Reasonable Firmness”: Establishes a objective test.

Differences with Common Law

Imminence is rejected. Other need not be a relative. Degree of force is not a factor.

MPC is broader, need not be imminent deadly threat. Also, may be raised in murder cases. Need not be threat to defendant or member of family.

Similar because limited to cases of unlawful force, doesn’t apply to natural forces. Also does not recognize defense when any interest other than bodily integrity is threatened.

Escape from Intolerable Prison Conditions:

Applies in typical intolerable prison condition escape case. May also be justified under §3.02, choice of evils.

Situational Duress: Natural Forces. For the most part doesn’t allow the defense.

May be applied in brainwashing case if prior force by coercer rendered her subconsciously fearful if didn’t obey

Battered Woman and the Nature of the Person of Reasonable Firmness:May be able to claim the defense. Reasons:

Threat of abuser could have been in the past.

May be excused by following the suggestion of the abuser with no threat because the threat happened in the past.

Measured against person of reasonable firmness.

Excused Duress (MPC §2.09)

Person of Reasonable Firmness:Standard used to determine if conduct was justified. Takes into account harm threatened to him and also gravity of harm he would be harmed. If belief of threat is not reasonable, person would be charged with negligent crime §2.09(2). If there is no threat but you reasonably believe it, you would be excused.

Recklessly/Negligent Put Yourself in Situation: No justification. Doesn’t allow duress defense for gang members who kill and say they had to or they would be killed. Not reckless to go in bad neighborhood.

Resisting Lawful Force: Not justified on grounds of duress, duress only deals with threat of unlawful force. If you are on death row and believe you are innocent, you cannot kill guard to escape.

Blackmail: Not justified on grounds of duress. Not unlawful force. The either and the or are lawful but when forced to choose between them, it is one unlawful.

Unlawful act that may not be Force: Force is usually not viewed as an omission. If MPC drafters wanted it, they would have provided it. Not justified. D threatens to cut off life preserving drugs.

Homicide: MPC does not limit duress to non homicide crimes as long as unlawful force is threatened. Lesser evils may be available too if it is not means but byproduct.

Natural Force Threat: Doesn’t give rise to justification on grounds of duress. Unlawful force always has a person to blame. MPC is criticized for this, allows a person to carry out evil will of other because he knows he can get off.

Imminent: No time requirement, just up to person of reasonable firmness. Probability factor that the more time that passes, the more likely the harm will be averted.

Phobias: Measured from person of reasonable firmness in his situation. We don’t expect people to sacrifice themselves for the greater good.

Pain: Not just pain that causes duress. If you don’t feel pain but are threatened with every bone being broken, you may not want it even though you won’t feel it.

Motivated by Threat or Personal Gain: Defense depends on what you are motivated by. If you were going to rob bank and then you were threatened to you would claim defense of what you were already going to do. However, you would not be able to back out. Depends on motivation.

Battered Woman: Goes to person of reasonable firmness in her situation.


Duress Model Penal Code §2.09

General Rule: Duress is an affirmative defense to unlawful conduct by the defendant if:

she was compelled to commit the offense by the use, or threatened use, of unlawful force the coercer upon her or another person; and

a person of reasonable firmness in her situation would have been unable to resist the coercion.

Defense is unavailable if the actor recklessly placed herself in a situation in which it was probable that she would be subjected to coercion. Defense is available if negligently placed herself in the situation except for those for which negligence suffices to establish culpability.

Force or threat of force need not be imminent, could be in the past.


Voluntary Intoxication: never an excuse for crim conduct. Condition caused by intoxication may be exculpatory.

Exceptions, if proved that:

Lacked mental state necessary for the offense.

Unconscious at the time or actions were otherwise involuntary.

Suffered from long-term intoxication-induced “fixed” insanity.

Generally used to show that D could not have formed the mens rea.

Involuntary Intoxication: involuntary if:

Induced by mistake.

Fraud or coercion involved.

Suffers from pathological intoxication.

Intoxicated from prescribed medicine.

Rule; Acquittal if: Same situations as voluntary intoxication.

Did not form the general intent OR Fulfills the state’s definition of insanity.

Model Penal Code § 2.08

Three types of intoxication (case law): Self-induced (Voluntary); Pathological; Not self-induced (involuntary)


Any form is a defense if an element of the offense is negated. §2.08(1)

Pathological and involuntary are affirmative defenses if they cause the suffering from a mental condition comparable to insanity. §2.08(4)

Approach is that mens rea is required no matter what.

Recklessly: redefined in § 2.08(2) for intoxication. Allows conviction.

Voluntary Intoxication:

Reckless to any crime you commit, doesn’t matter if you are unaware of the risk. It is like playing the lottery, depends on what you do and you are reckless.

Involuntary Actor:

Means you are totally incapacitated. Complete defense to crime. MPC §2.08(1).

Burden of Proof Regarding Mens Rea:

D must raise a reasonable doubt. P must prove beyond a reasonable doubt.

Pathological and Not Self Induced:

Alternative routes that get you legal insanity as an alternative defense.

Pathological: Excessively intoxicated in comparison to amount taken that you did not know you were susceptible.

Not self induced: Affirmative defense. If you don’t know what it was but you should have you are negligent.

Illegal Drugs: Always reckless, taking an unjustifiable risk.

Voluntary but Pathological: Affirmative defense.

Involuntary but not Insane: Being involuntarily intoxicated is not a defense by itself. Intoxication of any kind is only going to be a factor if you lacked the mens rea necessary at the time of the offense.

Two situations for defense:

Any form of intoxication is a defense to criminal conduct if it negates an element of the offense.

Pathological and involuntary intoxication are affirmative defenses if intoxication causes the actor to suffer from mental condition similar to insanity.

Negation of an Element of an Offense:

Mental State: General Rule: Person is not guilty of an offense if as the result of intoxication he lacked the mental state required in respect to an element of the crime.

Does not differentiate between specific and general intent.

Exception to Rule: In a prosecution for recklessness, a voluntarily intoxicated defendant cannot negate proof of recklessness by introduction evidence of his intoxication caused lack of awareness of a risk if he would have been aware of it had he not been intoxicated.

Voluntary Act:

Person who is unconscious as the result of intoxication, even if it is self induced, may raise an involuntariness claim. However, voluntary act may be found sometimes prior to unconsciousness.

Intoxication as an Affirmative Defense: Affirmative defense recognized if at the time of his conduct:

the actor suffered from pathological intoxication or involuntary intoxication; and

the actor’s condition qualifies under the American Law Institute’s test of insanity.

If satisfied, the defense is of intoxication and not insanity. Common law would say insanity.

Final Notes:

Classes, types. Voluntary or involuntary intoxication. Person who eats spinach: Categories overlap, person ate it voluntarily but didn’t know it would intoxicate him. They may overlap but also exclude in some cases (person takes something that is an intoxicant but he does so for good reason like a medication with a label that says a certain reaction may take place in a fraction of people. Would have been reckless had he been aware of the risk except that he only knew it was a risk but it taken in order to treat a condition. He took a risk to become unaware of other risks for a good reason. §2.08 doesn’t account for those situations. It is incomplete because it says self induced and not self induced.

Diminished Capacity: Abnormal mental condition short of insanity.

Mens Rea” Defense: Expert evidence of diminished capacity is used as evidence to show that requisite mental state was not present.

Partial Responsibility” Defense: Not a Defense.

Model Penal Code § 4. 02

Mens Rea” defense is admissible whenever relevant. § 4.02(1)

§210.3(1)(b) — Allows manslaughter committed as a result of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.”

Cannot be found guilty if found insane. Tests for Insanity

M’Naghten Approach: As a result of mental illness he either:

Did not know the nature and quality of his act.

Did not know that the act was wrong.

**Criticism: Assumes person’s understanding/reasoning ability may be separated from other aspects of personality.

Irresistible Impulse Approach: If commission caused by insane impulse which controlled person’s will. Combined with M’Naghten.

Durham or Product Approach: Must simply show that crime was the product of a mental illness.

Federal Test: Revision of M’Naghten

As a result of severe mental disease or defect, unable to appreciate:

The nature and quality of her conduct. OR The wrongfulness of her conduct.

Model Penal Code §4.01Rule: B/c of mental disease or defect, lacked substantial capacity to

Appreciate the “criminality” of her conduct. Conform her conduct to the requirements of the law.


Essentially a revision of M’Naghten and Impulse tests

Appreciate” instead of “know”

Impulse” is not used. Instead, “lacks substantial capacity”

Insanity (MPC §§4.01-4.03)

Defeat the Mens Rea:

Better to defeat the mens rea than claim insanity. D must prove insanity by a preponderance of evidence but only has to raise a reasonable doubt under mens rea.

If acquitted of mens rea you walk free. If found insane, you are committed and not released until either not dangerous or insane. It may never happen.

Insanity would get you off the hook for murder but you leaves the door open for manslaughter.

Brain Tumor: May be relevant if you can show some connection. Not necessary nor sufficient.

Appreciate the Criminality:

MPC §4.01(1): Must not be able to know you are doing wrong. Killing your husband for cheating not a defense.

Irresistible Test:

MPC §4.01(1): Unable to conform conduct to requirements of law.

Softer version of M’Naughten, deals with volitional abilities. Test: Have a person who knows he will be punished for conduct with certainty and he acts anyways.

Option for D is to claim that it was not a voluntary act, only must raise a reasonable doubt.

Sociopath (Psychopaths):

People who are fairly intelligent and understand the law in the sense they can identify what people believe to be right and wrong. They understand that when you do something wrong people get mad. The fact that it is wrong is not a reason in itself for them not to do it. Almost like non-human animal.

Lack moral emotions aspect, don’t have feelings of guilt or moral indignation.

Not excused under MPC §4.01(2)

Punishment or Quarantine: There is no deterrence, if they do the act they only do it because they feel they can get away with it. They are put on notice by the penalty, quarantining them would be like letting them get away with it.

Last of so called excuse defenses. Not all that common and when it is used usually doesn’t end up in acquittal. Hard for defense to succeed.

M’Naghten Test:

Insane at time of crime to defect reason that she

Did not know the nature and quality of the act that she was doing; or

If she did know it, she did not know that what she was doing was wrong (at the time of the crime did not know the difference between right and wrong.)


Does not recognize degrees of incapacity

The confines of the test are narrow and don’t allow expert testimony outside the confines of test.

Doesn’t account for person who can tell difference between right and wrong but cannot control himself.

Person who cannot control self is undeterrable.

Irresistible Impulse Test Rule: Insane if at the time of the offense

She acted from an irresistible and uncontrollable impulse;

She lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free agency was at the time destroyed; or

The defendant’s will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control

ALI Test (MPC):

Rule: Not responsible for criminal conduct if at time of conduct she lacked the capacity to:

Appreciate the criminality of her conduct; or

To conform her conduct to the requirements of the law.

The Product Test

A person should be excused if her unlawful act was the product of a mental disease or defect. Person insane if it was at the time of the offense a but for cause.

No jurisdiction applies it today.


It was subject to opinion of one expert testimony.

Allowed psychiatrists to usurp jury’s authority.

Excluded from criminal responsibility deterrable and normally blameworthy actors.

Federal Test: Insane if D proves by clear and convincing proof that actor was unable to appreciate:

the nature and quality of her conduct; or\

the wrongfulness of her conduct.

Effect of Insanity Acquittal

Diminished CapacityProvides 2 categories of circumstances where actor’s abnormal mental condition, short of insanity, will occasionally exonerate him or result in conviction of a lesser crime or degree of crime then orig charge.

Mens rea: evidence of mental abnormality is offered to negate an element of the crime charged.

Partial Responsibility: Mitigates homicide to manslaughter.

Mens Rea Defense:D is prosecuted for rape and wishes to introduce evidence that as a result of mental retardation, he genuinely believed the female with whom he was having intercourse consented.

Not a defense, merely a rule of evidence.

Defense to All Crimes (MPC Approach):

Evidence that the defendant 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.

Evidence admitted to court and if believed it will acquit Df even though they still may be guilty of a lesser offense.

The Model Penal Code Approach:

Manslaughter if it is committed as the result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

EMED is determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. Purposes: It codifies and expands on the common law sudden heat of passion doctrine; and

It permits, but not require, courts in states that adopt EMED language to recognize partial responsibility defense.

Criminal Attempts (MPC §5.01)

Complete Attempts:

MPC §5.01(1)(a): When you have the mens rea of the completed crime but not the actus reus.Actor performs all of the acts that she set out to do but fails to attain her criminal goal. Out of his control after act.

Incomplete Attempts:

MPC §5.01(1)(c): The attempter has not done everything necessary for the actus reus of the completed crime. Must take a substantial step to be guilty.

MPC §5.01(2). Law doesn’t force police to wait until crime committed, they can prevent it.

Actor does some of the acts necessary to achieve the criminal goal but quits or is prevented from continuing. He can still go back and stop in some cases (time bomb). Problems:

Mens Rea: Person could figure out age of girl 30 seconds before having intercourse. Allows police to prevent harm before crime is committed but person could still back out right up to the time of the crime.

Actus Reus: Substantial steps are not clearly defined in every situation by MPC. How close does a person really have to get?

Incomplete example would be the lit fuse (done the last act necessary but it is not out of your control; you can still put it out). Done the last act necessary you intend or believe to carry out crime. Done with purpose or belief of committing the crime. Has to do with result crimes. Incomplete attempts. He has not done all of the actus reus.

Last Act Necessary: MPC §5.01(1)(b): Done the last act necessary you intend or believe to carry out the crime.

Reckless Attempts:

Result Crimes:Cant have attempted reckless result crimes. If you intend to bring about the result, you are no longer reckless.

Attempted Reckless Driving: Think you are drunk and are on your way out the door to drive. Took a substantial step. §5.01(1)(c). No attempted reckless crime if your attempt is complete. Incomplete only.

Attempted Negligent Homicide: Negligently act in self defense and shoot but miss V. This is the exception to the no attempts for result crimes. Enters because of the negligent belief.

String of Events: How far can you go back? Incomplete attempt crimes may punish people that might have changed their minds.

Attempts: Impossibility, Abandonment (MPC §5.01)

Mistake of Fact:

MPC §5.01(1)(a): Guilty of attempt if crime would have been committed had the facts been as he believed. Hunter thinks day is Oct. 14 when it is Oct. 15.

Mistake of Law:

MPC retains pure legal impossibility, attendant circumstances don’t include the law.

Mistake is about the law, you know the facts. Not guilty under MPC. We don’t want to punish people for attempting to break non existent laws. Attempt is only valid if there is a law prohibiting it.

Example: Know the date, mistaken about the legal date to start hunting.


Attempts are punished the same as successes under the MPC except for homicide.

Believe you are breaking a law that doesn’t exist but really breaking another:

Cannot be charged with attempting to commit a crime that doesn’t exist. If the law was more general he would be guilty of attempt (law prohibiting smuggling contraband and then has list not included in the statute). If the list were broken down into many smaller, more specific statutes you would be not guilty.

Conduct unlikely to Yield Result or Danger:

MPC §5.05(2): Mitigation: Court can lower the grade of the punishment or dismiss the prosecution altogether if it is unlikely to be dangerous or cause the result (try to kill using voodoo doll). MPC put this in so code would be taken seriously.

Abandonment (MPC §5.01(4)):

No renunciation if D does so because of fear of arrest, plans to postpone the conduct, or if the act would be too hard to consummate.

Nothing suggests you have to prevent the harm in the way you plan to prevent it. MPC only mentions if abandoning effort stops the crime. MPC doesn’t mention what happens if another person stops it after he has change of heart.

Doesn’t apply to completed crimes, only incomplete ones under §5.01(1)(b) where you can take something back (Lit fuse). You may be guilty of attempt already and there is a possibility you can get rid of the attempt by trying to take it back.

Gives affirmative defense to D, he has incentive to stop the harm. D must prove it.

Lesser Evils: If you have to commit lesser crime in order to prevent the harm of your attempt you would be on the hook for the lesser crime but attempt would be gone.

Failure to Prevent Harm: No longer attempt, you committed the crime. Even if you had a change of heart, you had the culpable mens rea when you acted.


General Rule: At common law, legal impossibility is a defense but factual impossibility is not.

Under MPC, legal impossibility is usually not a defense.

Factual Impossibility: Person’s intended end constitutes a crime, but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control.

Pickpocket putting hand in empty pocket. Person pulling trigger of unloaded gun. Shooting in empty bed.

No defense, no good reason to let them off.

Inherent Factual Impossibility: Applies if the method to accomplish the crime was one that a reasonable person would view as completely inappropriate to the objective sought.

Attempting to sink a battleship with a popgun. May be a defense.

Legal Impossibility:

Pure Legal Impossibility:

Arises when the law does not proscribe the goal that the defendant sought to achieve. You cannot attempt to break a law that does not exist.

D attempts to sell bootlegged liquor after the prohibition has been repealed but not knowing it.

Actor’s mistaken belief that he is committing crime X does not make him guilty of attempted violation of crime X even if he is guilty of crime Y.

Hybrid Legal Impossibility:

Actor’s goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstances that constitutes an element of the charged offense.

D shoots tree stump believing it to be V. D sends obscene literature to adult believing it to be a minor.


D starts to commit a crime but then abandons her conduct before consummation of the offense.

Only applies to MPC §5.01(1)(b, c): Cannot renounce a completed attempt. You can resolve not to do it again but you have done it. Applies to incomplete forms under b (lit fuse example, you have a chance to take it back).



Hybrid Legal Impossibility and Factual Impossibility:

§5.01(1): Designed to abolish the defense.

Pure Legal Impossibility:

ALI did not intend to abolish it.

Renunciation (abandonment):

Recognized as an affirmative defense. Elements:

She abandons her effort to commit the crime or prevents it from being committed; and

Her conduct manifests a complete and voluntary renunciation of her criminal purpose.

Decision to postpone is not complete.

Doesn’t count if actor desists because of fear of apprehension or difficulty of accomplishment.

Grading of Criminal Attempts and Other Inchoate Crimes:

Crimes of attempt are offenses of the same grade and degree subject to the same punishment as the offense attempted. Attempts are punished the same as successes.

Exception: Felonies of the first degree. They are downgraded to second degree crimes.

Special Mitigation: (§5.05(2))Judge is allowed to dismiss or impose lesser sentence if the crime was so unlikely to happen that neither she nor her conduct represents a danger to society. This provides flexibility to the rare case of inherently impossible attempts (trying to sink battleship with popgun).



Definition: When a person, with the intent to commit a specific offense, performs any act that constitutes a substantial step toward the commission of that offense. Otherwise, two components:

A specific intent to commit a crime.

Act in furtherance of intent which go far enough toward completion.

Mens Rea:

Intent to commit the acts or cause the result constituting a crime.

Intent necessary for the completed crime.

Actus Reus: An act that progresses sufficiently toward the commission.

Traditional approach:

Perpetration v. preparation: Go beyond mere preparation.

Dangerous proximity to success: Not necessary for accused to go through with the last act of criminal purpose.

Alternative Approaches:

Physical Proximity: Focus on what remains to be done.

Control over all indispensable elements: Nothing must be left undone that would prevent the defendant from success.

Probable Distance”: Under ordinary course, would lead to completion in the absence of intervening outside factors.

Equivocality” or Res Ipsa: Firmly shows actor’s intent.

Model Penal Code § 5.01

Definition of Attempt: § 5.01(1)

If D did everything that she intended to do, but the crime was not successfully committed, subsection (1)(a) or (1)(b) is applied.

Subsection (1)(a) applies if D is prosecuted for an attempt to commit a crime defined in terms of conduct;

Subsection (1)(b) applies if the statute prohibits a result.

Subsection (1)(c) covers all remaining cases, namely those circumstances in which the D has performed acts in furtherance of a crime but more conduct was planned. This subsection seeks to determine where planning ends and perpetration begins.

Mens Rea

Generally: Conscious objective (purpose) to engage in the conduct or to cause the result that will constitute the substantive crime.


Belief: (1)(b) explicitly and (1)(c) implicitly provide guilt if D believes that the result will occur, even if it were not conscious objective to cause it.

Mens Rea as to attendant circumstances is not necessary for attempt. Comment, (1)(a) – “acting with …

Actus Reus

Substantial Step”

§ 5.01(1)(c) — “act or omission constituting a substantial step in a course of conduct to culminate …”

Defined in § 5.01(2)

Must strongly corroborate the D’s criminal intent.

List of factual circumstances which are acceptable.

Attempt to Aid — § 5.01(3)


Misdemeanor to counsel, incite, or induce another to commit or to join in the commission of any offense, whether that offense is a felony or a misdemeanor.

Model Penal Code § 5.02(1)

Applies to all crimes.

Recognizes solicitation to commit attempt.

Relationship need not be accomplice to perpetrator.

Impossibility: Law for conduct that for some reason cannot succeed.

General: Hornbook Common Law; legal is a defense; factual is not.

Types of Impossibility


Define: Failure due to an unknown factual circumstance

Never a defense; facts as believed, would have been a crime.

Pure Legal or True Legal:

Define: Occurs when criminal law does not prohibit the conduct or result sought to be achieved. D usually mistaken of how offense is defined in the statute.

Always a defense.

Hybrid Legal (Mistake of Fact):

Define: Factual impossibility related to legal relation. / status

Varies, generally no defense; can be viewed as factual imposs.

Model Penal Code § 5.01

§ 5.01(1): Abolishes factual and hybrid impossibility.

Pure Legal kept; consistent with Legality. Comment, § 5.01.

Misdemeanor to counsel, incite, or induce another to commit or to join in the commission of any offense, whether that offense is a felony or a misdemeanor.

Model Penal Code § 5.02(1)

Applies to all crimes.

Recognizes solicitation to commit attempt.

Relationship need not be accomplice to perpetrator.

In general: Solicitation occurs where a person invites, request, command, hires, or encourages another to engage in conduct constituting any felony or misdemeanor relating to the obstruction of justice or a breach of the peace

Mens rea: CL solicitation is specific intent crime, need to intentionally commit the actus reus

Actus Reus: After one person invites, requests, commands, hires, or encourages another to commit an offense, nothing else is needed

You can’t solicit someone to help you

You can be guilty of both solicitation and being an accomplice

Scenarios: X hires Y to kill V.

Y kills V – X is guilty of murder

Y attempts to kill V – X is guilty of attempted murder

Y agrees to kill V, but does nothing – X is guilty of conspiracy

Y neither agrees nor does anything – X is guilty of solicitation

CL vs. MPC

Impossibility: X tells Y to pick V’s pocket and X knows that there is nothing in the pocket

Under CL X is not guilty of solicitation

Under MPC X is guilty of solicitation

MPC: Section 5.02 Criminal Solicitation

Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating it’s commission he commands, encourages, requests another person to commit or attempt to a crime or for which he would be an accomplice

Un-communicated solicitation. It is immaterial under subsection (1) that the actor fails to communicate with the person he solicits for the crime, if his conduct was designed to effect such communication

Renunciation of Criminal purpose. It is an affirmative defense that the actor after soliciting another person to commit a crime, persuaded him not to do so, or otherwise prevented the commission of the crime, under circumstance manifesting a complete and voluntary renunciation of his criminal purpose (see Section 5.01(4))


Must show the following elements:

An agreement between two or more persons.

Objective: To carry out an act which is either unlawful or which is lawful but to be accomplished by unlawful means.

Mens Rea: A culpable intent on the part of the defendant.

The Agreement: Meeting of minds isnt required; Only need communication of intention to pursue joint objective.

Mens Rea: Intent to agree; Intent for further, unlawful conduct to be achieved; Some jurisdictions include the mental state required for the object crime. Often view conspiracy as a specific intent crime.

Conspiratorial Objective.

Unlawful objective or lawful objective through unlawful means.

Includes corrupt, dishonest, fraudulent, and immoral acts.

Structure of conspiracies.

Wheel: One person or group serves as the “hub.”

Chain: Linear fashion.

Chain-Wheel: Combination of the two.

Exception of hearsay rule: Out-of-court statement by a conspirator made while participating in the conspiracy may be introduced against the other conspirators.



Abandonment. Must leave and try to stop the crime.

Wharton’s Rule. Only those necessary to commit crime are guilty.

Conspiracy (MPC §5.03)

Mens Rea: Purpose to promote or facilitate the crime. Not stated but you also must have the kind of culpability otherwise required in the crime.

Actus Reus: Agreement. Most solicitations if accepted turn into conspiracy. May infer agreement based on the actions of the actor after the solicitation.

Requirement of Numbers: Common law used plurality view. It takes at least two to conspire.

MPC uses unilateral view. Focus on one individual at a time. Changed because under MPC attempt and the real thing is punished the same so the make no distinction here and use unilateral conspiracy. D could be guilty if X is undercover cop.

Stake in Business: Some cases found that stake in enterprise has been a basis for inferring mens rea of offense

Facilitating the Offense: If there is no agreement, there is no conspiracy. D rents apartment to prostitute for more rent that is market value and knows her to be prostitute.

Strict Liability: MPC takes no position under conspiracy but they do under attempts. They punted.

There is an agreement to promote or facilitate the actus reus of the crime. They have the kind of culpability otherwise required. A and B agreeing to sell bottles of aspirin that are mislabeled but they don’t know, a strict liability crime. Guilty if the court follows attempts. Inchoate crimes take place before the crime is committed.

Conditional Purpose: It negates the criminality of the offense. However, a factual mistake would give them a criminal purpose, they would be guilty. A and B above.

Recklessness: You can’t conspire to recklessly bring about result (no such crime as conspiring to commit reckless homicide). If you cause result, you are guilty of it. If you agree to drive recklessly, you are guilty of conspiring to drive recklessly.

Burglary: Mens Rea requires you to have purpose for crime to enter in and commit felony. If D conspired w/ undercover cop to enter/steal but cop was going to arrest him when D got out, not guilty of conspiracy for burglary or larceny (permanently deprive possession), cop would not be guilty of conspiracy, no mens rea. D is guilty under MPC but not common law (plurality requirement).

Conditional Purpose:

Guilty as charged, does not negative the harm regardless of how remote the condition.

Punishment: is graded at the same level of the object of the conspiracy with the exception of first degree felony. If person conspires to commit more than one crime, MPC will punish according to the most serious target offense.

Person may not be convicted and punished for both conspiracy and the object of conspiracy. Exception is if prosecution can prove that agreement was a conspiracy to commit additional offenses not yet committed/attempted.

Overt Act: Person must commit overt act to be guilty of conspiracy to commit a misdemeanor or third degree offense. No overt act is necessary for first and second degree felonies.

Conspiracy II (MPC §§1.02, 5.04)

Chain Conspiracy: C1—C2—C3: C1, C2 and C3 all know their jobs and don’t all know each other but know they are there. These go together to make one conspiracy.

Wheel Conspiracy: C is the hub in the middle. He is the hub of several chain conspiracies. What makes them into a wheel is linkage where each person in the chains understands that they are part of one massive operation and that the success depends on everybody’s individual success.

MPC doesn’t adopt these chains and wheels but has the scope of conspiracies. §5.03(2). It is very unlikely for them to reach the wheel conspiracy.

Reason to Make One Large Conspiracy:

Venue: Can take action in any place where one act has occurred. More choices.

Hearsay: Once you make a prima facie case that various people in one conspiracy, you can admit into evidence anything one of the conspirators said out of court. Anybody in the conspiracy speaks for all of the conspirators. This is an exception to hearsay rules. It is an admission. Anything John says you can attribute to Bill.

Pinkerton Doctrine: Federal court and in many states. Not a doctrine under the MPC. If you are in a conspiracy, then you are an accomplice of any crime carried out by any party to the conspiracy in furtherance to the conspiracy. This in particular is a big tool for the prosecutor.

Jurisdictions: Cannot be guilty of conspiracy if you are in one state and agree to break law in other state. Cannot be charged in CA under NV law. If federal case doesn’t matter.

Continuing Conspiratorial Relationship:

MPC §5.03(3): One conspiracy if he conspires to commit a number of crimes.

Term continuous may pose problem. How many grains of sand makes a heap?

Impossibility: MPC doesn’t recognize it. Try to kill V treated as conspiracy even if V is deceased.

Transparency: Difficult to prove conspiracy if actor doesn’t know about it. No agreement. Usually conspirators need to feel they are not acting alone. MPC recognizes unilateral approach but lack of agreement makes it difficult.

Indifferent to Crime: Mens rea requires purpose to promote or facilitate crime. Knowing is probably not enough. MPC did not want to punish those who sold things legally to others whom they knew would use the product illegally. It would put people who give any aid to person who commits a crime in a conspiratorial relationship.

If you think he is going to use the car to do one crime but he is planning on doing another and you want it done you would be guilty of conspiracy.

Multiple Crimes: May have actus reus for two crimes but mens rea for only one (One D may not know underage girl is the daughter of other D; Statutory rape and incest). Unknowing D would not have purpose, just be reckless for the other crime he didn’t know of.

Technically D1 would be reckless but a well designed system of judgment would exhaust his culpability of incest where punishments are matched to culpability.


Unilateral approach: If 1 of conspirators knows of lesser evil, is insane, etc, he has defense but the other doesn’t.


MPC §5.03(6): Must thwart the success of the crime and have conduct that manifests his renunciation. Alternative theory would be reduce the agreement to acting on your own. That would be a more defendant friendly interpretation.

MPC §5.03(7)(c): This section has to do with the statute of limitations. So once you break it off, the five years begins to run. The fact that the statute of limitations begins to run is evidence that the crime still exists unless it is thwarted.

If the other D commits a different crime (robs a different bank), he would be off because he thwarted the original crime. However, he would still be on the hook if the original bank got robbed later.

No Conspiracy of Crime if you cannot be guilty of the target crime:

MPC §5.04(2): This section says that if you would not be guilty of the target crime, you would not be guilty of conspiracy. This goes back to legislative intent: If they wanted the buyer to be guilty to, they would make it a crime to buy the drugs.

Define: One who intentionally assists other to engage in conduct that constitutes an offense.

Common Law Categories

Principles in the First Degree. Person with mens rea who:

Personally commits the act.

Commits the act through use of an innocent agent.

Principles in the Second Degree:

Present at the time of commission and aids it.

Constructive Presence: Presence need not be actual. May be in a position to assist the principal. (lookout, getaway car)

Substantial Contribution to the commission.

Accessory before the fact:

One who is absent at time of the offense but who procured, incited, counseled, advised, encouraged, commanded

Knowledge: Must be encouragement; knowledge insufficient.

Proceeds: Need not share in the proceeds.

Accessory after the fact:

One who, knowing that a felony has been committed, aided, assisted, comforted, or received a felon.

Must be actual intent to assist. Failure to notify is insufficient.

Mens rea: Need two mental states:

Intent to assist in the conduct.

At least the level of culpability provided in the definition of the crime.

Actus Reus: “But for” test need not be satisfied as long as mens rea is present.


Complicity (MPC §§2.06, 5.01(3))

Mens rea: Purpose of promoting of facilitating the offense. Same mens rea for conspiracy and solicitation. Purpose can be derived from vested interest (attending illegal concert).

Actus Reus: Providing some sort of assistance with the purpose of promoting or facilitating the offense.

Any kind of encouraging act could do (presence as encouragement).

Attempt to give Aid:

MPC §2.06(3)(a): Attempt to aid is enough. Person who leaves a gun with purpose that other person will use it but the other doesn’t and uses another, he is accomplice.

Accountable for the Conduct of Another:

MPC §2.06(2): Liable when acting with the kind of culpability otherwise required. Must act with the mens rea otherwise required. Should be read as modifying every part of §2.06(2).

Conduct Inevitably Incident to Crime’s Commission:

§2.06(6)(b): Not accomplice if the offense is so defined that his conduct is inevitably incident to its commission. (Buying ticket to concert, statute should have proscribed paying for ticket instead of just making the performance illegal).

Victim of the Offense:

MPC §2.06(6)(a): Cannot be accomplice. Statutory rape: Scarlet will be accomplice to statutory rape to Adam. We don’t want to make the victim into an accomplice.

Knowledge vs. Purpose:

MPC opted for a requirement of purpose for complicity. Selling items legally that you know will be used illegally doesn’t not make you an accomplice.

Judges and juries frequently cheat on this. If Godfather asks S for a gun that S knows will be used to kill V but S is indifferent, they may find him guilty without purpose.


If crime is attempted but fails, person who would be accomplice had the crime been successful would be an accomplice to the attempted crime. Ask, 23.3.

MPC §5.01(3): If crime is not committed or attempted, the person giving aid would be guilty of an attempt of the crime, not complicity. You would be guilty at the time you provide the aid.

Renunciation: Even though you would be guilty of attempt at the time you give aid you could still renounce by renouncing what made you liable under this provision. MPC §2.06(6)(c). Must terminate prior to the offense. Important.

Not Knowing the Crime:

Actor who is willing to aid in whatever criminal conduct but doesn’t know the exact plan. Court in similar case found the actor guilty as an accomplice. MPC §5.01(3) could act as catch all. If no crime is attempted he could still be guilty of attempt.


Not getting in the way to protect V when you are covered with armor. Should not make you an accomplice unless you have a duty. Even if you have purpose you should not be an accomplice, it would force an affirmative duty on people.

Ducking the missile may be different. You would have the mens rea and the actus reus but your act was something you could do anyways.

Liability for Other Results:

MPC §2.06(4): Attempting to give aid makes you an accomplice. Also makes you guilty of result crimes. If you attempt to give aid to arson and the arson kills a person you are an accomplice for homicide also. You have the culpability required by the crime. D would be SL for the death because of the purpose he had for arson.

No bar in MPC in making accomplice guilty of higher degree than principal.

Innocent Instrumentality:

MPC §2.06(2)(a): D is principal, I is just a weapon (mailman delivering bomb).

Unknowingly Justified Actor: No justification if you don’t know about it. Just like lesser evils, actor must believe he has the justification.

No purpose required under innocent instrumentality. Cause is enough without purpose but complicity requires purpose. D is negligent in telling P that V will kill him and P kills V. Had no purpose, he would be guilty of negligent homicide.

You can be principal through extreme recklessness. D leaves loaded gun home with children. He would be principal guilty of reckless homicide.


MPC §2.06(6)(c): To get yourself out of complicity, first you must terminate your complicity prior to the commission of the offense and either deprives its effectiveness or gives timely warning to law enforcement.

If you can stop social harm right after the commission you probably get off. Similar to sting operation, P cannot arrest D until the sale of drugs is complete.

No requirement to thwart the success of the crime as in conspiracy (MPC §5.03). Alexander thinks that MPC drafters didn’t see the discrepancy when they made it.

Solicitation. If the complicity is based on solicitation, must look to MPC §5.02(3) to renounce. D has already given the aid, cannot take it back. D must give timely warning to police or prevent its commission.

Conspiracy without Giving Aid/Committing different Crimes:

Under MPC, merely being part of a conspiracy is not enough to make you accomplice. Must give some kind of aid.

MPC doesn’t tell us how to draw distinctions, how specific the you need to be. D and X agree to rob Bank A but X robs Bank B.

Crime that results in murder or negligent homicide. Most states have statutes that make killings in the course of robberies felony murders. Accomplice to robbery would be accomplice to felony murder too. If X hits person negligently, D would not be accomplice to negligent homicide.

Pinkerton Rule: The mere being within a conspiracy makes you an accomplice of any crime within the scope of the conspiracy. Very loose doctrine and prosecution friendly.

Strict Liability:

Same as other inchoate crimes, depends if D has the purpose in bringing about the strict liability element. Help start car with defective brakes, D must have purpose for the car to be driven regardless if he knows the brakes are defective.


Must have the purpose and the kind of culpability otherwise required. D helps P shoot on range where children are in the background. P knows but D doesn’t. P would be guilty of reckless endangerment but D wouldn’t, had the purpose to help P shoot but lacked the reckless culpability.

Accomplice to Excused Principal:

Actor can be accomplice to principal who is insane. No need for principal to be guilty of the offense, just has to carry out the actus reus.

Solicitation: MPC §2.06(3)(a): Soliciting a crime can make you an accomplice.

Accomplice Guilty of Greater Crime than Principal:

MPC §2.06(7): Accomplice may be convicted of crime with greater degree than principal. I can be guilty of murder even though O is guilty only of manslaughter.

Unknowingly Justified Actor:

No justification if you don’t know about it. Just like lesser evils, actor must believe he has the justification. You can be accomplice of completed crime not even attempted. Dressler says otherwise but Alexander thinks he is wrong.

Person Legally Incapable of Committing Crime:

MPC §2.06(5): Person who is legally incapable of committing crime may be guilty of it if it is committed by anther person. D telling P to rape his wife. D could be principal if P is innocent instrumentality. P provides the actus reus, D provides the mens rea.

Lack of Actus Reus: Actor would be guilty of attempt (MPC §5.01(3)). D telling P to rob relative’s store.

Actus Reus is Less than What you Gave Aid for:

You would be complicit in the lesser crime that resulted but guilty of attempt of the greater crime. Can only be convicted of one. Aid for aggravated battery but hired guys only do simple battery.

Passive Conspirator (P and D agree that P will rob bank, P kills V during robbery)

Pinkerton Rule: Conspirators are complicit if the crime is within the scope of the conspiracy or crimes that are the natural and probable causes of the conspiracy. D is complicit in robbery and homicide.

MPC Approach: Mere conspiracy is not enough for complicity. Must solicit, aid, or aid in planning. Face to face conspiracy may be complicity from encouragement. Pinkerton gets its bite where there is no face to face conspiracy. D is not complicit in robbery unless it is face to face conspiracy.

MPC §2.06(4): Complicity in result if actor has the kind of culpability required. D would be complicit in the homicide if the jurisdiction makes any killing during the course of a felony a homicide without any further mens rea.

P kills V recklessly: MPC §2.06(4) only kicks in if one of the elements of homicide is the commission of the felony itself. If entirely independent crime, D is not complicit.

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