Criminal Law Outline

Essential Supplements for Success in Crim Law:

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



  1. Burdens of Proof

7.01 Putting the Issues in Procedural Context

7.02 Burden of Protection

B. Who Has the Burden?

C. How Great is the Burden?

D. Effect of Failing to Meet the Burden

7.03 Burden of Persuasion

A. Nature of the Burden

B. Who Has the Burden?

1. The Presumption of Innocence: The Winship Doctrine (In General)

2. Mullaney v. Wilbur

3. Patterson v. New York

4. Post-Patterson Case Law

a. In General

b. Element of an Offense versus a Defense

C. How Great is the Burden?

1. Elements of Crimes: Proof Beyond a Reasonable Doubt

2. Defenses

D. Effect of Failing to Meet the Burden

1. Elements of Crimes

2. Defenses

7.04 Model Penal Code


9.8.03 Burdens of Proof & Production; Presumption


1. prosecution has burden of proof beyond a reasonable doubt for every element of the offense

• this rule is constitutionally mandate by Due Process Clause

• difference b/tw a defense (D has to prove w/preponderance of evidence) and a denial (prosecution has burden of proof BRD)

In re Winship1970

• MPC: requires prosecution to prove every “element” of an offense BRD (MPC §1.12(1))

• but, MPC defines “element” broadly to include the absence of any excuse or justification defense (§1.13(9)(c))

• thus, MPC places a greater burden of proof on prosecution than is constitutionally required

2. there are probably constitutional limits on what legislature my remove f/ the elements of the defense (e.g. may not delete voluntary act; or mens rea for serious crime)

3. even if an element can be omitted f/the offense, if it is not, prosecution must prove BRD

4. even where prosecution has burden of proof, D may have burden of production

i. the may explain why permissive presumptions are constitutional even when the fact proved does not establish the fact presumed BRD: it may so establish it if D fails to offer evidence to negate the presumption & has the burden of doing so

• w/permissive presumptions, all you need is a “more likely than not” (51%) & there’s no other evidence

• but that is not enough for proving BRD

• there is a rational connection b/tw basic fact(s) and presumed fact(s)


BF (51%) → PF



• if no evidence is given to rebut:


BF + no evidence (95%) → PF



• squares Ulster County situation (3 guys & 1 girl with handgun in her purse in the car)

• probability are products of the very rules of the trial process

• they create new fact b/c they create incentive for D to provide new facts

• D’s counter evidence must be compelling enough to defeat BRD

• D doesn’t have to prove anything, he just need to lower the probability

→ burden of production


5. mandatory presumptions, rebuttable or irrebuttable (conclusive), are unconstitutional, though legislature can produce the same result by changing the definition of the crime

• mandatory presumptions may be better for D than an affirmative defense

• this is b/c w/a mandatory presumption D can provide evidence to rebut (up to jury BRD), while w/an affirmative defense D must prove the defense (no BRD applicable, must prove negation

• if affirmative defenses are ok, what’s to prevent the prosecutor f/shifting evidence and forcing D to prove & negate ?

• if a basic fact is 99% certain and thus a presumed fact, should there be a mandatory rebuttable presumption?

• jury is to “do their duty” – it is now proved BRD (D has rebutted nothing)


  1. Presumptions

8.02 Mandatory Presumptions

A. Rebuttable Presumption

B. Irrebuttable (“Conclusive”) Presumptions

8.03 Permissive Presumptions (“Inferences”)

8.04 Model Penal Code

  1. Actus Reus

9.01 Actus Reus: General Principles

B. Punishing Thoughts: Why Not?

9.02 Voluntary Act: General Principles

B. The “Act”

C. “Voluntary”

1. Broad Meaning: In the Context of Defenses

2. Narrow Meaning: In the Context of Defenses

3. “Voluntariness”: At the Edges

a. Hypnotism

b. Multiple Personality (or Dissociative Identity) Disorder

D. Voluntary Act Requirement: Rationale

E. Burden of Proof

F. The Issue of “Time-Framing”

9.03 Voluntary Act: Supposed (But Not Real) Exceptions to the Requirement

A. Poorly Drafted Statutes

B. Status Offenses

C. Crimes of Possession

9.04 Voluntary Act: Constitutional Law

A. Robinson v. California

B. Powell v. Texas

C. Current Law: Powell in Light of Robinson

9.05 Voluntary Act: Model Penal Code

B. Exception to the Rule


9.9.03 Voluntary Act


1. a willed physical or mental act; defined as “a willed muscular contraction or bodily movement by the actor”

• you can have an involuntary act as part of a voluntary act

2. constitutionally required as condition for criminal punishment (no status crime)

• you cannot punish someone for a status (e.g. being an addict)

• possession is a status

3. query: why are certain things regarded as consistent w/a voluntary at (e.g. habits, brainwashing) but others not (e.g. hypnosis, somnambulism, automatism)?

• exemption of sleepwalkers & those under hypnosis

•exempt b/c conscious, but in an altered state of mind – culpable if in control of something

• don’t have access to full normal range of reasoning for acting/not acting

• much like when you’re driving “automatically”

• but things out of habit are not involuntary (according to MPC)

4. note the problem of deviant causal chains b/tw will & act (e.g. St. Vitus dance)

• liability: every act does not need to be voluntary, but some relevant act does

• voluntary acts precede involuntary acts

• must first located a culpable choice in time

5. prosecution must prove voluntary act, but D may have burden of production re negating facts (e.g. hypnosis)

• in other words, there may be a permissive presumption that the act was not under hypnosis

• convict old or new Patti Hearst? (kidnapped and brainwashed)

• burden of proving Patti’s act as voluntary or involuntary is on prosecution b/c it’s an element of the defense

• Patti still as burden of production (evidence)

• prosecution is aided by presumed fact


• an irresistible impulse

• an affirmative defense

• burden of proof on D

• but, can claim involuntary act

• no burden of proof BRD

• only has to raise reasonable doubt

• use evidence to defeat ONE of the elements of offense BRD

6. note the time-framing problem for voluntary acts where no culpable choice (Baker — cruise control stuck at 55mph in a 35 mph zone; Newton – armed and handicapped plane passenger & involved a strict liability statute)

7. possession is usually an omission (failure to dispossess within a “reasonable” time) – legality problem

• mere possession does not deal w/intent, but you can be guilty of possession – crime does not deal w/acquiring

• omission as failing to commit an act


9.07 Omissions: Exceptions to the No-Liability Rule

A. Common Law Duty to Act: “ Commission by Omission”

2. When There Is a Duty to Act

a. Status Relationship

b. Contractual Obligation

c. Omissions Following an Act

(i) Creation of a Risk

(ii) Voluntary Assistance

B. Statutory Duty (Including “Bad Samaritan” Laws)

9.08 Omissions: Model Penal Code

9.09 Medical “Omissions”: A Special Problem

A. Act or Omission?

B. Analysis as an Omission

C. The Barber Approach

D. Reflections Regarding Barber

9.10 Social Harm: General Principles

B. Definition of “Social Harm”

C. Finding the “Social Harm” Element in a Criminal Statute

D. Dividing “Social Harm” Into Sub-Elements

1. “Conduct” Elements (or “Conduct” Crimes)

2. “Result” Elements (or “Result” Crimes)

3. Attendant Circumstances

9.11 Social Harm: Constitutional Limits


9.15.03 Omissions


1. usually no duty to act

2. exception: where cause the victim’s peril & can effect easy (safe) rescue

a. must one cause culpably (A in our hypo), or is innocent causation sufficient (B)?

• 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

• B is not culpable b/c B is not at fault

• B was only causal – innocent causes

• all of the situations of A = that of B

• except if B doesn’t know V is drowning (and no negligent act)

no liability for anything

• baseline liability is zero b/c no negligent homicide of knocking V in

• A is still guilty of negligent homicide even if negligent of death

b. must one know or be reckless regarding whether one caused the peril? (see Tennant case for W. Va.)

• if A breaches duty to act (knowing omission) & V drowns → A commits knowing homicide (have to know you caused it)

• if A didn’t realize that he caused V to drown → negligent homicide

• A doesn’t have a duty to act

• must know facts first:

• if you are ignorant of the fact, you don’t have duty to act

• ignorance of danger is negligent belief

• if you’re ignorant of law, you are not exempt f/duty

• whether V is drowning? Whether A can rescue safely?

• if A could have rescued V (but thought he couldn’t save him physically), guilty of negligent homicide

• 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

• burden of proof BRD of mindset is on the prosecution

c. causation of peril through reliance w/o a promise (D as Olympic swimmer)?

• 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

• does not matter that he’s an Olympic swimmer

• consider his responsibilities w/respect to others’ beliefs (if he knows of their beliefs)

d. causation (worsening) of peril through withdrawal of rescue plus reliance (F)

3. status-based duty to rescue – which statuses (C as lover)?

• child/parent = biological status of protection; spouses = formal legal status w/affirmative duty to protect

• lovers are not of a formal legal status

4. contract-based duty to rescue (E as lifeguard): all contracts, even if victim not relying and not the promise?

•E had a contractual obligation to act

• duty based on contract v. duty based on imperiling someone

• if V doesn’t know E is a lifeguard or no one knows he’s a lifeguard:

• pool owner still has a reliance on E

• pool owner would have hired someone else if E wasn’t going to do the job

• so E imperiled V b/c there would have been another lifeguard who would have done the job right

5. line b/tw causing harm & omitting to rescue (F w/life preserver)?

• creates more risk b/c by giving life preserver, people would believe V is ok and turn away

→ imperilment

• but V isn’t any worse off

6. level of risk that eliminates duty?

• G: the law does not require one to be a good Samaritan but allows one to stand by and watch a preventable death

• this is b/c altruism could be neverending


  1. Mens Rea

10.02 Definition of “Mens Rea”

B. Broad Meaning: The “Culpability” Meaning of “Mens Rea”

C. Narrow Meaning: The “Elemental” Meaning of “Mens Rea”

10.04 Frequently Used Mens Rea Terms

A. “Intentionally”

2. “Motive” Distinguished

3. “Transferred Intent”

b. An Unnecessary and Potentially Misleading Doctrine

c. Looking Past the Easy Cases

B. “Knowingly” or “With Knowledge”

C. “Willfully”

D. “Negligence” and “Recklessness”

1. An Overview

2. “Negligence”

c. Should Negligence Be Punished?

d. Who Really is the “Reasonable Person”?: Initial Observations

3. “Recklessness”

E. “Malice”


9.18.03 Mens Rea



• MPC breaks up actus reas into 3 parts:

• conduct

• result

• circumstances

• conduct circumstances→ result

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


MPC §2.02 (3)

• when the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly w/respect thereto.


MPC §2.24 (4)

• a person commits a misdemeanor if, knowing that he has no privilege to do so, he falsifies, destroys, removes or conceals any writing or record, w/purpose to deceive or injure anyone or to conceal any wrongdoing


MPC §2.02 (4)

• when the law defining an offense prescribes the kind of culpability that is sufficient or the commission of an offense, w/o distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears


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

• MPC 2.06 (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

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

c. is not the same as 100% foreseeability of consequences

d. transferred intent – a fiction?

• exists in MPC

• fiction of “intentional killing” by a 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. recklessness

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

• function of justifiability

• 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)

• where statute cuts off at “knowing”

• but willful blindness = recklessness

• willful blindness is ignorance, that could have been prevented

b. risk believed in must be substantial and unjustifiable

c. whether risk D believes exists is “substantial” or “unjustifiable” is a matter of law, not a matter of D’s own characterization

• justifiability is based on one’s acts (not his beliefs) – it’s a matter of law

• it all comes back to justification; unjustifiable does all the work

• you’re still taking the risk you thought you were taking

• actual recklessness is based on mental state, not the action

d. query: must “actual” risk be substantial, etc. (objective versus subjective accounts of recklessness)(e.g. believe 80 MPH when actually 55). And what is actual risk if not God’s-eye — 1 or )?

• “substantial” risk does not do any work at all; “substantial” risk is not necessary

• it all relies on “justifiable”

• actual risk can still be zero

e. is “substantial” independent of “unjustifiable”?

difference b/tw knowing and reckless

1) degree of risk

2) 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; near 100%)

4. negligence

a. how construct RPAS?

b. 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

• a reckless person acts in the face of that risk

difference b/tw negligence and reckless

• negligence is not recklessness b/c underestimates risk

• but culpable b/c of misestimation of risk (when a reasonable person would not)

• calculation of risk is incorporated into culpability

• strongest case for negligence being culpable

• forgetting about a risk (not reckless); e.g. baby drowns in a bathtub

• recklessness is acting consciously against risk


10.06 “Specific Intent” and “General Intent”

10.07 Model Penal Code

B. Culpability Terms

1. “Purposely”

2. “Knowlingly”

3. “Recklessly” and “Negligently”

b. Nature of the “Reasonable Person”

  1. Strict Liability

11.01 General Principles

A. “Strict Liability”: Definition

B. Presumption Against Strict Liability

C. Public Welfare Offenses

D. Non-Public-Welfare Offenses

11.02 Policy Debate Regarding Strict Liability Offenses

A. Searching for Justification for Strict Liability

B. Alternatives to Strict Liability

11.03 Constitutionality of Strict Liability Cases


9.23.03 Strict Liability


• strict liability

• no culpability needs to be proven; immaterial that a D is culpable

• not a knowing mistake b/c not a mistake

1. what justifications for strict liability in criminal law?

• social harm (statutory rape) as more important than unfair conviction

→ deterrence

→ reduce pre-marital sex

• one must have reasonable care (selling wrong prescriptions)

• if not reasonable care, then negligent

• need to take more reasonable care (even if took all precautions a reasonable person would take)

• consequence of a crime could be so grave that culpability is irrelevant

•standard of reasonable care is related to gravity of consequences

a. prevent truly culpable from escaping

• strict liability is a conclusive presumption of fault

• consciously saying it’s ok to convict a few innocent in order to convict more guilty ones

• strict liability is a way of getting around problem of proving BRD

• cannot avoid strict liability merely by being reasonable

• requires more care/abstinence than what is reasonable

• why?

• law does not think pre-marital sex has any social value, so deters it

• 90% of the time, when can’t prove BRD, it turns out person did act unreasonably

→ conclusive presumption of negligence/recklessness

• reason we have rule is b/c we presume culpability

→ so eliminate culpability

• but can’t prove BRD

• sacrifice occasional non-faulty D to convict all the faulty Ds

b. increase deterrence an prevent suffering of innocent victims

c. save costs in prosecuting

d. re: strict liability aggravating element of non-strict liability crimes: a punishment lottery?

• any time you’re committing a crime, every other remote crime associated with it makes you automatically reckless

• but culpability of crime you’re committing should already includes risks of other (remote) crimes

• 2 options

• either we punish all w/slightly higher punishment for accidental, aggravated burglary


• or we can give some high and some low punishment depending on a random chance circumstance


2. against strict liability

• but (w/pharmaceuticals), do we want people to take more care than a reasonable person?

• would that deter people f/entering pharmaceutical industry?

• cost of further precaution does not provide greater return

• cost of prescriptions increase and passed on to customers

• reasonable care is optimal care

a. punishment unrelated to desert

b. how time-frame re: voluntary act (Baker)?


  1. Mistakes of Fact

12.02 Why Does a Factual Mistake Sometimes Exculpate?

12.03 Common Law Rules

B. Strict-Liability Offenses

C. Specific-Intent Offenses

D. General-Intent Offenses

1. Ordinary Approach: Was the Mistake Reasonable
2. Another Approach: Moral-Wrong Doctrine

3. Still Another Approach: Legal-Wrong Doctrine

4. Regina v. Morgan: Common Law in Transition or an Aberration?

  1. Mistakes of Law

13.01 General Principles

B. Rationale of the Rule

1. Certainty of the Law

2. Avoiding Subjectivity in the Law

3. Deterring Fraud

4. Encouraging Legal Knowledge

13.02 When Mistake-of-Law Is a Defense: Exceptions to the General Rule

B. Reasonable-Reliance Doctine (Entrapment by Estoppel)

1. Reliance on One’s Own Interpretation to the General Rule

2. Official Interpretation of the Law

3. Advice of Private Counsel

C. Fair Notice and the Lambert Principle

D. Ignorance or Mistake the Negates Mens Rea

2. Specific-Intent Offenses

3. General-Intent Offenses

4. Strict-Liability Offenses

13.03 Model Penal Code

B. Exceptions to the General Rule

1. Reasonable-Reliance Doctrine

2. Fair Notice

3. Ignorance or Mistake that Negates Mens Rea


9.25,29.03 Mistakes



• MPC 2.04 (1a) (not 1b)

1. under MPC and modern approach to mens rea, mistakes of fact or law are negations of various types of mens rea depending of whether and to what extent the mistakes of fact or law are culpable (see chart)

• ignorance/mistakes negatives mens rea

• strict liability elements do not require any mental state

• mistakes are thus immaterial to proof of strict liability element

• gets rid of reasonable/unreasonable mistakes

all you need to know about mistakes is definitions of purpose, knowing, reckless & negligent (MPC 2.02)

• w/mistake and purpose, take purpose off chart (Stanford Law Review article)

• if an element must be accompanied by “purpose”, then any mistake by D re the existence to that element logically negates the crime by negation the purpose

• reasonableness of D’s mistake is immaterial if pertaining to purpose

• what is true of purpose is true of “knowledge”

• recklessness can be consistent w/some mistakes, i.e. those that are recklessly made

• some unreasonable mistakes may be reckless mistakes

• a reckless mistake as to element E’s existence is tantamount to recklessness w/respect to D

• where negligence is sufficient for an element, only non-negligent mistakes negate the element

• a negligent mistake w/respect to existence of element E is the same as negligence w/respect to E

• re reasonable/unreasonable mistakes, only reasonable mistakes negate a charge of negligence w/respect to an element (so long as “unreasonable” and “negligent” are treated as equivalent)

a. thus, if must “knowingly take property of another,” and don’t know that taking X, or don’t know that X belongs to another, then lack of mens rea

• mistake could be one of fact or of law (of property)

b. not a “defense,” but a negation of mens reas

• but D may have burden of production

• D does not have to prove it

• prosecution has to prove absence of the mens rea BRD

c. if crime requires recklessness, then non-reckless mistake negates

• if it requires negligence, non-negligent mistake negates

2. note how MPC 2.04 (2) deals with mistake re crime committing (e.g. swanicide)

• if you think you’re committing crime A, but you commit crime B, you are given punishment of the crime you intended to commit

• allows prosecution to consider mistakes that negates original charge, but still punished for intended crime

3. rarely is the existence of the criminal law under which we are punishing D itself an element of the crime it defines, although sometimes it is (e.g. “it is a crime to do X knowing that it is a crime to do X”

• in other words, usually, ignorance of the criminal law is immaterial

• most criminal statutes do not include mental state of whether one has knowledge of crime as an element

• but there are some crimes that do have knowledge of a crime as an element

• most of the time, matter of crime itself is an issue of strict liability

• it is immaterial that one knows it’s a crime, even if his ignorance is reasonable

a. there are some constitutional limits to this – e.g. Lambert (convicted felon who did not register w/L.A. w/in 5 days; actually never registered at all) – although what they are is uncertain

• got off b/c

1) it was an omission, not an act

2) duty to act was imposed on the basis of a status (presence in L.A.) rather than on the basis f an activity

3) the offense was malum prohibitum (legislation making otherwise lawful conduct criminal)

• not a reasonable social police for everyone to learn all of criminal laws

malum in se (a crime that is inherently evil/immoral)

• except in extreme cases like Lambert, if law is published, knowledge of a law is almot never an element of an offense

• status of crime is almot always an issue of strict liability (no defense)

b. there is criticism of punishing Ds whose ignorance of the law under which they are punished is truly nonculpable and does not itself reveal a defective character

Smith David: mistake of elements of law, not criminal law broken

• law of property: if you put up a fixture in an apt, it becomes the property of the landlord

• Ds didn’t know if law so didn’t know they were destroying property of landlord

• court said ignorance of property law was an element so got off

• law required that they know they were violating another’s property (MPC 2.04 (1))

c. the exceptions to the general rule are: the law hasn’t been published or otherwise made available to D; D reasonable relied on an official interpretation (that was erroneous and didn’t amend the law)

• drafting issues: outcomes of 2 differently written statutes can be different despite their being functionally equivalent


  1. Causation

14.01 General Principles

A. “Causation”: An Element of Criminal Responsibility

B. “Causation”: Its Role in Criminal Law Theory

C. “Causation: Criminal Law versus Tort Law

14.02 Actual Cause (or “Factual Cause”)

A. “But-For” (“Sine Qua Non”) Test

B. “Causes” versus “Conditions”

C. Special “Actual Cause” Problems

1. Confusing “Causation” with “Mens Rea”

a. Causation Without Mens Rea

b. Mens Rea Without Causation

2. Multiple Actual Causes

a. Accelerating a Result

b. Concurrent Sufficient Causes

3. Obstructed Cause

14.03 Proximate Cause (or “Legal Cause”)

A. Putting “Proximate Cause” in Context

B. Direct Cause

C. Intervening Causes

2. Factor 1: De Minimis Contribution to the Social Harm

3. Factor 2: Foreseeability of the Intervening Cause

b. Responsive (Dependent) Intervening Causes

c. Coincidental (Independent) Intervening Causes

4. Factor 3: The Defendant’s Mens Rea (Intended-Consequences Doctrine)

5. Factor 4: Dangerous Forces That Come to Rest (Apparent-Safety Doctrine)

6. Factor 5: Free, Deliberate, Informed Human Intervention

7. Factor 6: Omissions

14.04 Model Penal Code

A. Actual Cause

B. Proximate Cause (Actually, Culpability)

  1. Concurrence of Elements

15.02 Temporal Concurrence

A. Mens Rea Preceding Actus Reus

B. Actus Reus Preceding Mens Rea

15.03 Motivational Concurrence

15.04 Special Problem: Temporally Divisible Acts and/or Omissions




10.2.03 Causation and Concurrence


• causation is primarily in result crimes

• last of basic elements of crimes

1. cause links conduct to result (and sometimes part of conduct to the rest of conduct)

• satanic cult hype

• participants are guilty of reckless endangerment

• but, if they knew 1 was going to kill someone → reckless homicide

• but you can’t prove BRD b/c can’t prove mens rea

• no intent to kill, only intent to join

• everyone is willing to take unjustified risk to kill

→ reckless endangerment

• not attempted homicide b/c no intent to kill

2. why do we care about results? Would retributivist care, or would he focus on culpability? Would a utilitarian care?

• 2 different mindsets:

1) the 1 who had live bullet will feel worse than the 99 others

2) (if only 1 blank) all will not feel as bad

3. cause in fact: problems of joint sufficient causation (Hertz hypo: tampered brakes)

• both are culpable; who caused it does not matter

4. proximate cause:

a. not different types of problems: deviant causal chains (poison hypo); intervening nonhuman causes (foreseeable; unforeseeable); intervening human causes (foreseeable/unforeseeable; responsible or culpable/irresponsible or nonculpable)

• if you have 2 sufficient causes, you do not have a necessary (but-for) cause

• an attorney could argue (poison/canteen/thirst hypo) that D prolonged victim’s life

b. are these problems soluble w/o an answer to 2. above?

5. concurrence required


• MPC does not distinguish, in terms of punishment, attempts from successes except for in the highest degree of felonies—murder (although they have a whole section on causation, etc. and maintain a distinction)

******************PROBLEM SET 10*********************

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

(1) “objective justification”: given what is in fact true, what would ordinarily be a criminal offence, 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)


Q: Can one who believes he’s subjectively justified, but he’s mistaken in that he is not objectively justified???


Q: Can a 3rd part come to the aid of a person who’s subjectively justified, but not objectively justified???


(1) “excuse”: you don’t claim what you did was right, don’t deny what you did was wrong . . . 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)


Q: because you’re never entirely certain that event will occur, because you’re always acting on a probability of an attack (not a certainty), what probability should be required??? (what if probabilities are the same? Consider: man stuck in wheelchair in law firm, been cheating with partner’s wife, partner approaches and (1) knows you’ve been cheating, says he’s gonna kill you, goes to get his gun; (2) knows someone (but not you) has been cheating, says he’s gonna kill that person, goes into office to listen to messages, one of which is his wife confessing; or (3) knows nothing, just says he’s gonna go into office to hear messages . . . can you shoot him as he enters office in all 3 cases???


Q: what about probability that the person will succeed in killing you? (vs. just that they will try?) – WHAT TOTAL PROBABILITY WILL YOU NEED? To preemptively kill someone, YOU NEED TO KNOW ATTCK IS PROBABLE AND ALSO THAT ATTACK HAS MORE THAN NEGLIGIBLE CHANCE OF SUCCEEDING?!?!


**Preemptive action requires acting on the basis of 2 “probabilities”: (1) will attack occur?; and (2) will attack be successful?

[should you have to wait for the attacker to form a murderous/malicious intent to preemptively act???]




[1] All of the people here are innocent in some sense! (i.e., all of those against whom one might use deadly force are innocent) >>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! What’s the law? If attackers are innocent, do you have to weigh the number of attackers vs. the number of innocent people who will be harmed?you’re allowed to kill any number of attackers to save fewer victims, even if attackers are innocent! (here, excused but not justified) – subjectively justified, in this case, are similar to the excusedwhy would we value the victim’s life over and above even innocent attackers???


  1. Defenses: An Overview

16.02 Failure-of-Proof Defenses

16.03 Justification Defenses

16.04 Excuse Defenses

16.05 Specialized Defenses (“Offense Modifications”)

16.06 Extrinsic Defenses (“Nonexculpatory Defenses”)

  1. Justifications and Excuses

17.02 Underlying Theories of “Justification”

B. “Public Benefit” Theory

C. “Moral Forfeiture” Theory

D. “Moral Rights” Theory

E. “Superior Interest” (or “Lesser Harm” Theory)

17.03 Underlying Theories of “Excuse”

B. Deterrence Theory

C. Causation Theory

D. Character Theory

E. “Free Choice” (or Personhood) Theory

17.04 Justification Defenses and Mistake-of Fact Claims

17.05 Justification v. Excuse: Why Does it Matter?

B. Sending Clear Moral Messages

C. Providing Theoretical Consistency in the Criminal Law

D. Accomplice Liability

E. Third Party Conduct

  1. Self-Defense

18.01 General Principles

B. Elements of the Defense

C. The Necessity Component

D. The Proportionality Component

E. The “Reasonable Belief” Component

18.02 Deadly Force: Clarification of the General Principles

A. “Deadly Force”: Definition

B. The “Non-Aggressor” Limitation

1. Definition of “Aggressor”

2. Removing the Status of “Aggressor”

a. Deadly Aggressor

b. Nondeadly Aggressor

C. Necessity Requirement: The Special Issue of Retreat

1. Explanation of the Issue

2. Contrasting Approaches

3. The “Castle” Exception to the Retreat Rule

D. Nature of the Threat: “Imminent, Unlawful Deadly Force”

1. “Imminent”

2. “Unlawful Force”

18.03 Deadly Force: “Imperfect” Self-Defense Claims

18.04 Deadly Force in Self-Protectioin: Rationale for the Defense

18.05 Self-Defense: Special Issues

18.06 Model Penal Code

  1. Defense of Others
  2. Defense of Property and Habitation
  3. Law Enforcement
  4. Necessity
  5. Duress



1. Duress as a Justification Defense

a. when one is forced to commit a crime, “duress” exculpates him b/c he did the right thing by acceding to the


i. duress v. necessity

• some courts treat duress is a subspecies of the necessity defense or use duress & necessity interchangeably

• common law: duress only applies of coercing party threatens w/deadly force

• and duress only applies if coerced actor commits a non-homicide offense

• duress involves unlawful human threats; necessity involves a natural emergency

b. rationale: when duress results in acquittal, the coerced actor has committed the lesser of 2 evils

• but not every duress case involves a lesser-evils situation (eg. Harms could be of equal severity)

c. it is unlikely that duress as a justification defense conforms w/common moral intuitions b/c of difficulty is establishing what creates a greater harm

2. Duress as an Excuse Defense

a. most courts treat duress as an excuse defense

i. utilitarian arguments (in favor of the defense)

• when one is coerced to commit a crime, threat of criminal punishment is ineffective

• a victim of coercion is just a victim

ii. utilitarian argument (against the defense)

• greater misfortune for society if coercing party could confer immunity on her agents by threats of death or violence….such a rule would open a “wide door… to collusion…”

iii. retributive arguments (in favor of the defense)

• coerced actor does not deserve punishment b/c:

(1) D lacks requisite mens rea

• but, actor does intend the result, b/c he wants to avoid the threatened harm

• it effectively creates the intent

(2) commission of the offense was no longer the voluntary act of D

• but, D wills his muscles to commit the crime, so coercion does not negate the voluntary act requirement of the criminal law

(3) D does not lack free will, but has capacity to choose

• coerced actor in fact chooses to violate the law

• but, he does not possess a fair opportunity to exercise her will lawfully

• duress only excuses when available choices are hard and unfair

b. blameworthiness of D

i. most believe that a coerced person who commits an offense is morally blameless, but not that he has acted properly

• ex: C threatens to cut off D’s left hand unless D rapes V. D succumbs to threat. If D is acquitted under duress, it is not b/c jury decided D’s finger is more valuable than V’s bodily integrity, but b/c in light of the unlawful threat, C (not D) is to blame for the rape

c. rationale: essence of duress defense is that one is not to blame for his conduct if, b/c of an unlawful threat, he lacks a fair opportunity to conform his conduct to the law

B. ELEMENTS OF THE DEFENSE (also under Common Law)

1. burden of proof is on D to prove unlawful threat to immediately kill or seriously injure self or another person

2. generally, one can be acquitted of any offense by duress except murder if crime was committed under the following circumstances:

a. threat must emanate from a human, not f/natural conditions

i. if natural conditions, can claim defense of necessity, but not of duress

b. deadly force: defense only applies if coercer threatens w/deadly force

i. actor reasonable believed that the threat was genuine

d. imminency: deadly force must be “present, imminent, and impending”

i. threat of future harm is insufficient

ii. to be excused , absence of reasonable alternatives/escapes

• to be excused, D must reasonably believe that there is no way to avoid the harm threatened except to accede to the threat

f. threat must be directed at someone close to the actor

i. at a minimum, a threat directed to a family member of the defendant is sufficient

g. nonfault of the actor

i. D must not be at fault for being in the coercive situation

• ex: D joins a terrorist org. Later, he is force by other member to commit a crime in furtherance of their ideals. D will not be excused if she succumbs to the demand.

duress defense does not apply to the offense of murder

a. case law: there is relatively little case law, but the no-defense rule seems to be strictly applied

b. rationale: the no-defense rule is sometimes defended on the utilitarian ground that the drive for self-preservation, although strong, is not irresistible, so people should be persuaded to resist such coercion

i. moral imperative: the no-defense rule is also defended by the ground that it is better to die that to kill an innocent person

• but this moral imperative only serves to show that a person is not justified in killing an innocent

• it does explain why D should not be excused on the ground that a person of reasonable firmness would have also succumbed to the coercion.


1. issue: Can an escaped inmate use the necessity (justification ) or duress (excuse) claim by arguing that he fled as the result of intolerable prison conditions?

2. The Law

a. original view: courts did not permit inmates to use claim b/c in would incite more escapes

b. modern view: trend is to permit a limited defense

i. returning to prison

• some courts req. D to turn himself in after the escape, once the prison condition “has lost its coercive force”

• if he fails to do so, he may not claim the defense

• more lenient courts treat the escapee’s failure to turn himself in as one factor to be considered by the jury in determining whether D should be acquitted

ii. use of violence

• some states will not recognize the defense if D uses violence during the escape

3. nature of the defense: courts are divided on whether defense is duress or necessity

a. conceptual analysis: prison escape cases do not neatly fit either defense

i. duress: escape cases are not like typical duress claim b/c nobody order prisoner to escape

• decision to escape is deliberate, so suggests that greater choice is involved that ordinary duress case

ii. necessity: necessity claim is primarily used in cases of natural emergencies, rather than human threat

• but in many escape cases, D flees b/c of threat of physical/sexual assault

• D may not be claiming that escaping was the right thing to do, but rather the he should be blameless under the circumstances

b. practical analysis

i. if D is justified in attempting escape, he may have the right to obtain assistance in escaping

• but if escape is wrong, and D is excused b/c of coercive situation, an accomplice in his escape could rightfully be prosecuted

ii. if D is justified in escaping, the guard cannot be justified in preventing the escape

• if D is only excused in escaping, the guard would be justified in stopping him


1. overview: unambiguously treats duress as an excuse; defense may be raised although D did not commit the lesser of two evils

a. necessity v. duress

• if one is coerce to commit a crime, and if commission of crime IS the lesser of two evils, D may ALSO raise MPC’s “choice of evils” defense, §3.02

2. Elements of the Defense

a. nature of the coercion

i. D must have been coerced to commit the crime by the use, or threatened use, of unlawful force by X, against him or another person

• note: under MPC, it is not necessary to show that X ordered D to commit crime; it is enough that x’s use of force/threat of force caused him to commit the crime

• ex: in an “intolerable prison condition” case, D may invoke the duress defense if X threatened to sexually assault him, although X did not order D to escape

• nature of the force: force/threat of force need NOT be deadly, as req. by common law; ANY form of physical harm will suffice

• but, other types of threats (like economic or reputational) do not qualify

human force: cannot use duress defense unless the force was unlawful (emanated f/a human), & not f/natural conditions

b. reasonable firmness test

i. a person of reasonable firmness in D’s situation would not have been able to resist the coercion

• homicide case: excuse is applicable in homicide cases

• jury must decide, on facts of the case, whether a person of reasonable firmness in D’s situation would have killed an innocent person

c. blameworthiness of the coerced actor

i. defense is unavailable to a person who recklessly placed himself in the coercive situation

• but, if he was negligent in doing so, he may claim duress for all crimes except those based on negligence §2.09(2)

  1. Intoxication
  2. Insanity


A. Insanity Defense: Why?

1. utilitarian argument

a) punishment is inefficacious b/c one who suffers f/a severe cognitive or volitional disorder (a disorder that undermines an actor’s ability to perceive reality (cognitive) or to control her conduct (volitional) is undeterrable by the threat of criminal punishment)

b) counterarguments

i) specific deterrence: an insane person’s undeterrability makes him dangerous, so should be incarcerated

ii) general deterrence: although undeterrable, his punishment may serve as a warning to others

2. retributive argument

a) an insane person s not fairly subject to moral condemnation

3. arguments for abolition of the defense

a) abuse: defense is too easy to raise and too difficult to refute

B. The M’Naghten Test:

1. The 1st insanity test of modern relevance was announced by the House of Lords in M’Naghten’s Case, (1843). It has been the majority rule in this country except for a short time in the 1970s.

C. Irresistible Impulse Test:

1. In an effort to go beyond the cognitive-based M’Naghten rule, some states apply the M’Naghten test, but supplement it with the “irresistible impulse” test, a volitional-based standard

D. The “Product” Test:

1. The “product” test originated in 19th century but received little attention until the landmark decision Durham v. U.S. (1954). Eventually, Durham was overruled. U.S. v. Brawner (1972). Only New Hampshire currently applies the test.

E. Model Penal Code Test:

1. In an effort to go beyond the cognitive-based M’Naghten rule, some states apply the M’Naghten test, but supplement it with the “irresistible impulse” test, a volitional-based standard


  1. Diminished Capacity
  2. Attempt

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