I. Justifications/Reasons for punishment
- deter people from committing crime in the first place by using
the threat of punishment.
- Key assumption: humans are rational utility maximizers with a
transitional ordering of preferences
a. Specific Deterrence- deterring a certain individual from
offending (again)- Deter A from offending again
b. General deterrence- deter many people from offending, usually
by making examples of individual offenders- Punish A to deter
B, C, and D.
a. Incarcerate offenders to render them incapable of offending
again for the duration of the incarceration; "Put 'em on ice."
b. Does not require deep thought as to the ultimate reasons,
justifications, or higher goals for punishment- it is in
accord with common sense.
a. True "correction"- "cure" the offenders of their inclinations
to offend- mold them into decent and productive members of
society- the ideal goal of punishment
b. Goal of punishment- reform and correct the offender
a. Retaliation against the wrongdoer for his offense- a sort of
Retaliation for whom
(3) Victim's family/friends
b. Extreme version: lex talionis: "an eye for an eye, a tooth for
a. Denounce offenders to show them and others that society abhors
b. A loud and public statement in the most emphatic terms, "This
6. Other considerations
a. When deciding punishment, should we limit our in inquiry to
the present offense or look to the past history of the
b. Should punishment be proportionate to the crime or to some
c. In the criminal law generally, do we want specificity of
offenses or generality? Virtues and detriments to both
II. Elements of a crime: Actus Reus, Mens Rea, attendant circumstances,
A. The Actus Reus requirement
1. Actus Reus: an "overt act" indicative of a crime
a. Outward action that manifests criminal intent. The act
must be sufficiently related to the intent to constitute
b. An omission or comission
c. Culpable acts
(1) Culpable: blameworthy to some degree.
(2) Act: muscular movement or lack thereof
d. Possession may be deemed an act.
(1) Actual possession: to have something in your
physical control- you procure it
(2) Constructive possession- to have something in
your dominion with intent to control.
(3) One has an affirmative duty to dispossess
contraband which comes into one's possession
involuntarily- failure to dispossess can
e. Pertinent case
- Proctor v. State: an overt act is required, not
just criminal intent or thought.
B. Voluntary acts
1. An act that is an expression of one's will committed with full
knowledge and control.
2. We do not want to punish people for mere thoughts or
involuntary acts. (Martin v. State, People v. Newton)
3. Automatism and insanity: both have the potential to make
someone act involuntarily.
- As far as automatism, if someone is aware of his
condition, knows what brings on an attack, and acts
recklessly or wilfully to bring on an attack, then that
person may be held criminally liable for what he does in
that state. (People v. Grant)
- Drinking ----> Attacking cop
(vol act) (invol act)
The culpable act
4. MPC defines a voluntary act in terms of what it is not.
a. Reflex or convulsion
b. Body motion while unconscious or asleep
c. Hypnotism [This one is highly debatable]
d. Movement not a product or the effort of the
determination of the actor, either conscious or habitual
5. Drug addiction not deemed a voluntary act
1. The failure to act when a legally imposed duty (as opposed to
a moral duty) requires one to act
2. The duty may arise out of
c. Relational/Dependency (People v. Beardsley)
d. Voluntary assumption
(a-d: See Jones v. United States)
e. Creation of the peril (Commonwealth v. Cali)
3. Determining what omissions should be punished
a. Legislature is free to use the criminal sanction to
punish any omission it wants within constitutional
b. But, when statutes are ambiguous, the default is the
common law- judge made law.
- Judges don't like to make law, but they will do
so on occasion and draw support for their
conclusions by reaching out to other statutes and
cases. If the courts are willing to recognize a
duty in one sphere, they are likely to recognize
it in related spheres as well.
D. Strict Liability
- Dispensing with the mens rea requirement; committing the actus
reus alone makes you liable.
1. For what sort of offenses may strict liability be imposed?
a. Traditional common law crimes or derivatives thereof:
NO, strict liability is not permissible. Court will
require an intent component for such crimes or other
crimes mala in se. Traditionally, these crimes have had
intent components, and courts are reluctant to dispense
with them absent a clear statement from the legislature.
(US v. Morissette)
b. Regulatory offenses made mala prohibita that are
manifestations of police powers or other regulatory
powers. YES, strict liability is permissible here.
c. In making these determinations, the courts will look at:
(1) Intent of the legislature
(2) Common law analog?
d. Infractions/violations: small-time crimes usually carry
SL elements, and courts usually have no problem applying
SL in those situations.
e. US v. Balint: Balint charged with violating narcotics
act, though he did not intend to do so. No mention of
intent in the statute, but did Congress intend for
intent to be a requirement or not? After looking at the
statute and its legislative history, the Court concluded
Congress had weighed the possible risks of not having an
intent requirement and concluded that the greater good
required that the statute not have one. Additionally,
this is not a traditional mala in se crime for which
intent is an implicitly requirement.
f. US v. Dotterweich: Dotterweich was an official of a
company that shipped tainted and mislabeled drugs though
interstate commerce. Though he had no hand in the actual
shipping, the statute made him strictly liable. The
court held him liable because a person with a
responsible relation to the harm within the meaning of
the statute. Statute imposed a duty on those in
positions like Dotterweich's, and the law holds them
liable w/o fault for any harm done.
g. Judges often disturbed and reluctant to impose SL absent
a clear statement by the legislature. But even then,
questions over intent and state of mind tend to arise
during other stages of the process, like at the decision
to prosecute or not and at sentencing. Generally, the
more severe the punishment, the more judges are
reluctant to impose SL.
2. Legislatures love SL
a. It can streamline trials by dispensing with
individualized inquiries into states of mind. A
predicated determination of fault; no individualized
inquiries into fault
b. SL can be a major deterrent to committing the wrong
proscribed by the legislature.
c. Sets up a dragnet which can catch many more "offenders"
than an intent based statute. Sets up a high standard of
d. Legislature can tailor SL statutes so that they can snag
a fair amount of the persons they want to snag, and they
can rely on prosecutorial discretion, judicial
discretion, and gubernatorial clemency to further narrow
the group that the statute could snag.
3. Concerns of commentators
a. SL punishes persons without fault; to some that is
b. SL punishes without an individualized inquiry into
fault; legislatures should not be making generalizations
c. SL tends to strip the criminal law of its moral force.
a. SL channels the fault inquiry to other actors and stages
in the criminal justice system. (Frankfurter in
- Law enforcement officers
- Executive clemency
b. Though SL is primarily a creation of the 20th century,
we have had a version of SL for longer that seems less
morally objectionable: the felony murder rule.
5. Judicial restrictions
a. The court can use its sentencing power to mitigate the
penalty and also to take into account those factors not
admissible at the guilt/innocence stage.
b. When SL starts involving omissions and imposing
vicarious liability, courts begin requiring reasonable
relationships to the harm.
c. The objective impossibility of meeting an SL duty is a
d. What happens when court is confronted with a statute
that proscribes a given act, but is silent on the mens
(1) If the legislative intent to impose SL is clear,
then the statute is applied as written.
(2) If legislative intent is not clear,
(a) Is it a modern police power regulatory
offense? If so, court are willing to apply
(b) If it is a crime with a common law analog,
they are less likely to impose SL without
more legislative guidance.
(3) If the punishment is stiff, the legislature is
less willing to impose SL.
(4) If the offense the statute makes out amounts to
an "infraction" or "violation" (minor breach of
the law), then the courts find it easy to impose
(4) Court also look to policy: would imposing SL for
this offense be good policy or not? If so, then
they are willing to apply SL, otherwise, they are
unwilling to apply SL without a more definite
statement from the legislature.
(5) People v. Hutchinson: Hutchinson is charged with
illegally transporting an open container of
alcohol [A tack on offense to DUI/DWI]. The
bottle the cops found was stuffed between the
seats, and Hutchinson claimed one of his
passengers must have left it there and the he did
not know the bottle was in the car. The statute
makes out no level of mens rea.
The court refuses to apply SL
- Under a strict reading, SL imposes
liability upon persons for an offense which
by its very nature requires some sort of
- The statute would also punish someone for
the "sins of his neighbors", for he can
never know for sure what his passengers are
carrying. Such a reading flies in the face
of criminal law. Without more legislative
guidance, court is unwilling to apply SL.
- Strict interpretation would also impose an
n effective requirement that drivers frisk
their passengers is problematic from a
policy standpoint. Given the problematic
nature of that policy, more legislative
guidance is needed.
The dissent would have applied SL for several
mala prohibita offense
- legislative intent not to set a mens rea
- Deterrence/High level of care (drivers must
be very careful of who and what they carry
in their cars)
E. Mens rea: the guilty mind
1. By imposing mens rea requirements for various offenses and
grading them according to the offense, we attempt to
articulate our view that certain states of mind are more
guilty than others.
2. Up until 100 years ago, there were no detailed answers as to
questions concerning mens rea. The CL had general ideas about
culpable states of mind.
The CL divided mens rea up into two broad categories:
a. Specific intent: a higher level of mens rea is required
b. General intent: only a lower level of mens rea is
required to convict.
Beyond that, levels of mens rea were generally not graded in
any consistent fashion.
How then do the CL courts decide whether or not an offense
calls for specific or general intent? Well, they "wing it" to
some degree. The decision amounts to policy considerations in
some instances (what amount of mens reas should be required).
CL tended to require more mens rea for serious crimes and less
mens rea for less serious crimes. Additionally, certain
buzzwords in the statute may tip the court off as to the
proper level of mens rea to apply (ie. "intent",
"maliciously", "wilfully" usually trigger specific intent.
Other crimes that do not use such explicit statements of mens
rea are usually deemed general intent offenses. The CL was
extremely imprecise about what mens rea was required for
specific or general intent, so it attempted to do it by
defining what did NOT constitute specific or general intent,
or rather, what negated them (deal in the negative).
3. Many modern jurisdictions now employ graduated categories of
mens rea. The MPC categories are the height of precision and
systematic elegance with regard to gradations of mens rea as
well as their articulation (purposeful, knowing, recklessness,
4. Mens rea under the Model Penal Code
a. Purposefully (intentionally): With regard to q material
element of the offense the perpetrator acts purposefully
(1) With regard to an element that involves the
nature of the conduct or its result, "it is his
conscious object to engage in conduct of that
nature or to cause such result; and"
(2) With regard to an element that involves the
attendant circumstances, he is aware that they
exist or believes or hopes they exist.
b. Knowingly: With regard to a material element of the
offense, the perpetrator acts knowingly when
(1) With regard to an element that involves the
nature of the conduct or its result or the
attendant circumstances, "he is aware that his
conduct is of that nature or that such
circumstances exist; and"
(2) With regard to an element that involves the
result, "he is aware or practically certain that
his conduct will cause such a result."
c. Recklessly: With regard to a material element of the
offense, the perpetrator acts recklessly when he
"consciously disregards a substantial and unjustifiable
risk that a material element exists or will result from
his conduct... [a risk of a nature and degree] that
amounts to a gross deviation from the standard of
conduct that a law-abiding citizen would observe in the
d. Negligence: With regard to a material element of the
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 [perpetrator'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 [perpetrator's]
e. Default level of negligence: If the statute does not
specify a minimum mens rea requirement, the perpetrator
must act with purpose, knowledge, or recklessness.
f. Need only meet the minimum mens rea requirement in order
to convict. Proving a higher mens rea does not exculpate
the perpetrator when only a lower mens rea is specified.
5. In order to assess criminal liability, the offense must be
broken down into
a. Its elements
(2) Attendant circumstances
b. The mens rea requirement with regard to each element
(and the level of mens rea required for each element can
c. Under MPC, if mens rea as to one element is specified,
the code implies that the same mens rea applies to all
other elements barring an explicit indication otherwise.
d. The government has the burden of proving all elements of
the offense showing guilt beyond a reasonable doubt.
e. Steps involved in evaluating a problem in criminal law
(1) What are the elements of the crime?
(2) What states of mind are required for each
element- they need not have the same mens rea for
(3) Assess defendant's state of mind taking into
account ignorance of mistake.
(4) Does the defendant make it up to the requisite
level of mens rea? Does he measure up, fall
short, or is the element negated by ignorance or
6. Ascertaining what level of mens rea (if any) is required to
convict: Regina v. Faulkner
a. Faulkner made an unauthorized entry into the hold of the
ship upon which he was serving with the intent of
stealing rum. While trying to seal up with a spite one
of the kegs he tapped, he set the rum on fire with a
match and the ship burned down. Faulkner was charged
with violation the Malicious Damages Act, which in part
punishes those who "feloniously, unlawfully, and
maliciously" burn certain items of property.
b. Prosecution: Faulkner intended to commit a larceny, and
that is enough intent to make him liable for burning the
ship under the MDA. Jury was instructed not to take
intent into account: if he was in commission of a felony
at the time of the fire, he is guilty of violating the
MDA. He is to be held liable for every result without
regard to negligence, intent, knowledge, recklessness,
etc. (A sort-of "vicious will" level of mens rea). He
was found guilty.
c. Faulkner challenged the jury instructions on appeal. The
court ruled that in order to convict, the jury had to
consider the level of mens rea required for the crime to
see if Faulkner had it. [Intent can be transferred among
intentional torts and targets, but not generally among
crimes. In criminal law, we must make individualized
inquiries into the fault of each actor for each offense.
We focus in upon the person and crime in question.]
d. Elements of the crime:
(1) Conduct (setting the fire)
(2) Result (ship burned down)
(3) Attendant circumstances (ship, flammable rum)
e. The court found decided that in order to be convicted,
the jury must find that he had the requisite level of
mens rea for each element of the offense (in this case,
intent to burn the ship)
f. MPC analysis
(1) Did he intend to set fire to the ship? NO
(certainly not his conscious object to burn the
(2) Did he purposefully set fire to the ship?
- Was it practically certain that the result
would come to pass? (degree of
(3) Did he act recklessly?
- Did he disregard a substantial and
unjustifiable risk That the element exists
or result will occur that is indicative of
a gross deviation of care that would be
exercised by a law abiding citizen? (the
thought must at least pass through his
mind) [Who gets to make the call as to the
risk? Under the MPC, the jury gets to
decide, so the jury determines if the
perpetrator is negligent or merely
negligent or something less.]
(4) Was he negligent?
- Did he aver to the risk at all?
- Was there a risk?
- Should he have perceived it?
- Was there a gross deviation from the
standard of care a reasonable person in the
same circumstances would have used?
7. Mistakes of fact
a. Generally, the mistake of fact is a defense if it tends
to negate an element of the prima facie case.
b. Honest mistake of fact/belief:
(1) Under MPC, it negates purpose and knowingness
(2) Under CL, it negates specific intent
c. Honest and reasonable mistake of fact/belief:
(1) Under MPC, it negates recklessness and
(2) Under CL, it negates general intent
d. Statutory Rape Cases: People v. Guest
(1) Guest and Evan had sex with a 15 year old girl,
but he honestly and reasonably believed she was
older than 16. They had a reasonable good faith
belief that she was not underage.
(2) The court rules that the Alaska statute governing
statutory rape does not impose SL, unlike other
states that do impose SL for statutory rape. They
hold some awareness of wrongdoing is an integral
element of the offense. [not a police power
regulation, but a serious felony]. The mistake of
fact should at least mitigate the act down to a
e. Under MPC, the defense of H&R mistake of fact is not
available if the defendant would be guilty of a lesser
offense were what he believed was actually true. In
these instances, the mistake of fact automatically
reduces the grade of the crime down to a lesser offense.
[No manufactured dilemmas may be used get the defendant
f. Additionally, under the MPC, SL is imposed for having
sex with a child under age 10, and no defense regarding
mistake of fact is permitted. However, when the offense
depends upon the child being below a higher age,
defenses regarding mistakes of fact are permitted.
[Homage to the common law] (Section 213.6)
g. At CL, a mistake of fact defense is not available when
the mistake only reduces the grade of the crime and the
defendant's conduct is not materially different from the
higher grade crime. Instead, the defendant remains
liable for the higher grade crime.
h. Age specifications under CL: In CL jurisdictions, age
specifications of statutory rape victims are treated as
SL. Persons who have sex with victims under the
specified age do so at their peril. The policy argument
for that position is to forestall frivolous defenses to
a rather depraved act.
i. Mistakes of fact-law hybrid: legal issues made elements
of the crime. ie. mistakes as to legal status.
- Generally, the same considerations as to mistakes
of fact apply
(1) People v. Bray:
(a) Bray was charged with being a felon in
possession of a handgun. Bray had pled
guilty to a crime in KS, but he was unsure
if he was a felon or not.
(b) Prosecutor's argument: If he didn't know,
he should have known (negligence).
(c) Court holds that the requisite mens rea as
to that element is knowingness. (From
another case interpreting this statute and
from a case construing a statute dealing
with illegal aliens.) Not even the KS DA
knew whether or not Bray was a felon, so
Bray was in an even worse position to know.
(Honest mistake of fact will be enough to
get him off, so he will now want an
instruction to that effect.)
(a) Three elements
(1) Taking the property of another
(2) Without consent of owner
(3) With the intent to keep it.
(b) The status of title to the article is a
fact that is subject to mistake. Given that
larceny is a specific intent offense, then
only an honest mistake as to the ownership
of the article is enough to negate the
requisite mens rea.
(c) Umbrella hypothetical: Just before
deboarding a bus, you pick up an umbrella
you think is yours and proceed to deboard
the bus with it.
(1) At CL, the mens rea requirement as to
who has title to the umbrella is
specific intent, so only an honest
mistake is required to exculpate.
(2) The MPC suggests a knowing mens rea,
but it is possible to write a statute
setting the requisite mens rea at
(3) In Regina v. Smith, tenants added fixtures to
their landlord's property not knowing that under
English law that the fixture once installed
became the property of the landowner. A mistake
of fact as to the ownership of the fixtures was
treated as a defense to an action to recover for
damages to the fixtures when the defendant
smashed through them to remove wiring.
(4) Bigamy statutes: (MPC Section 230.1) Bigamy
statutes punish taking another spouse when one is
(a) Under the MPC where the requisite mens rea
appears to be knowingness, an honest
mistake as to one's marital status is
sufficient to exculpate.
(b) At CL, bigamy was treated as a general
intent offense, so an honest and reasonable
mistake is required to exculpate.
(5) Consent and rape- Regina v. Morgan:
(a) While out at a pub drinking and trying
unsuccessfully to pick up women, Morgan,
the senior of 4 RAF airmen suggested they
go to his house and have sex with his wife.
He noted that she was kind of "kinky" and
probably would resist at first, but to pay
her protestations no mind as that was how
she got turned on. The 4 did have sex with
the wife, and subsequently all four were
charged with rape.
(b) Morgan's three cohorts said in their
defense that they honestly believed she had
consented to having sex with them.
(c) The House of Lords concluded that an honest
mistake was sufficient to exculpate. They
chose to regard rape as a specific rather
than general intent offense, so an honest
and reasonable belief was not required to
exculpate. [The House of Lords, however,
affirmed the convictions on the grounds
that no reasonable jury could conclude that
Mrs. Morgan in any way consented to sex
with the four RAF airmen.
(d) In the US, rape is a general intent offense
in CL jurisdictions, so an honest and
reasonable belief is required in order to
negate the requisite mens rea. [Morgan was
eventually reversed by statute in Britain.]
(a) At CL, rape was defined as carnal knowledge
against the will. The deck was continually
stacked against women.
(b) Gradually over time, the courts began
interposing more and more restrictive
requirements in order to satisfy the
elements of the crime in an effort to weed
out perceived false claims of rape.
Additionally, the courts were fearful that
juries would become overly sympathetic
towards an alleged victim, so they moved to
trim the jury's discretion. They purported
to serve as evidence of consent.
(1) Introduction of forcible requirement
as a proxy for "against the will"
(2) Later, the courts introduced the
resistance requirement, the
requirement that the victim have made
some effort to fend off her alleged
(3) After that, the defense of reasonable
belief began to be entertained.
(c) These additions made rape exceedingly
difficult to prove. It has led to a
backlash, as manifested in the NJ revision.
(a) Altered the rape laws to remove the
insinuation that to be rape it had to
have been committed by an attacker
jumping out of the bushes.
(b) Eliminated the forcibleness
requirement. Instead of proving a
"no", the defendant is almost
required to show a "yes", though it
does not shift the BOP to the
defendant for obvious DPC problems.
8. Mistakes of law
(1) Mistakes of law can arise in 2 respects
(a) The existence of the law
(b) The interpretation of the law
(2) State v. Hatch
(a) Defendant, a citizen of MA, was driving through
NJ on his way to PA when he was stopped for a
traffic violation. The officer noticed that Hatch
had a shotgun and a rifle in the backseat
partially covered by blankets. Hatch lacked the
required NJ documentation and was not
transporting the weapons according to NJ law. An
avid sportsman, Hatch explained that he had all
the proper MA documentation, that his method of
transporting the guns was consistent with MA law,
and that he was unaware of any NJ laws governing
(b) The NJ S.Ct. concluded that the legislators
probably never envisioned that an out-of-stater
might be held liable for not having the NJ
Fireams ID. Even so, Hatch should have been
required to transport his firearms in a manner
consistent with NJ law. [However, the court
upheld the acquittal as understandable under the
(3) Maxim: Ignorance of the law is no excuse.
(a) Why is this so?
(1) The maxim tends to discourage ignorance of
the law and encourages an informed
(2) Discourages formations of individual law
counter to public law.
(3) Proving that the defendant knew about the
law is next to impossible- it would become
a lottery with the jury.
(4) It provides a certain stability and
certainty to the law.
(5) It makes violators examples to the rest of
society that such behavior is not condoned.
(b) This creates a tension in the law.
(1) The desire for certainty and evenhanded
application of the law as well as the
upholding of the rule of law, vs.
(2) The desire to remedy injustice in
(a) Use of discretion (at many stages)
(b) Write better statutes so that those
who should know do know about its
existence and that it applies to
(c) Advice and mistakes of law: Hopkins v. State
(1) Hopkins, a preacher in MD apparently
engaged in the cottage industry of
performing marriages, relied on a statement
by the State's attorney that 2 signs he
proposed erecting did not violate a statute
against certain signs. Hopkins erected the
signs, but subsequently the State's
attorney had a change of heart and charged
him with violating the statute.
(2) The court invoked the maxim that ignorance
of the law is no defense and upheld his
conviction, refusing to accept the
defendant's argument that advise from an
authoritative and semi-official source
should be a defense. It held that since
advice of counsel is not a defense to the
violation of the law, advice from the
State's attorney could not be used as a
(3) Why not allow the defense of prosecutorial
(a) Bribery and conspiracy
(b) Spurious and frivolous defenses
(c) Keep prosecutors from rewriting the
(d) Advice, interpretation, and mistakes of law
(1) Both the CL and the MPC recognize that
mistakes of law can sometimes be defenses.
(2) Under MPC, the defendant who wishes to make
such a defense must show 2 things (the
"damn good reasons")
(a) She believed the conduct was legal,
(b) She does not know about the statute
and the statute has not been
published (no fair notice), or
(c) She reasonably relied on an official
statement of the law that later
turned out to be erroneous.
(1) Statute or other enactment
(2) Judicial decision
(3) Administrative or governmental
regulation or order
(4) Official statement made by a
public official charged with
interpreting, administering or
enforcing the law.
(3) CL exception: limited defense for
authorized reliance upon an erroneous or
(a) Judicial opinion, usually from the
jurisdictions highest court
(c) Official advice from the responsible
agency (had to be REALLY official).
e. Constitutional limitations on the maxim: Lambert
(1) Lambert, a convicted felon, was charged
with violating a local LA ordinance
requiring convicted felons residing in or
frequenting the area to register. Failing
to register was an omission, and the
offense was SL, so it created a broad
sweeping duty that potentially snared
thousands of people. (This sort of
ordinance was popular in the '20's and
'30's as a means of keeping the riff-raff
(2) Lambert challenged her conviction under the
ordinance on DPC grounds.
(3) Justice Stewart and the Court found the
ordinance did violate the DPC, but Stewart
deemed the opinion "a derelict upon the
waters of the law." He deemed the ordinance
imposed a duty only because it was on the
books. Those subject to the ordinance had
no reasonable notice that they were under a
duty to register. The court held that in
order to convict, the defendant had to have
been aware of the statute and still failed
to register. [The DPC requires notice and
an opportunity to be heard.]
9. Defense of diminished capacity
a. Diminished capacity to
(1) Control one's behavior
(2) To appreciate the wrongfulness of the act
(3) To form the requisite mens rea
b. Diminished capacity negates
(1) Under MPC, purposefulness, knowingness and
recklessness, but not negligence (because of the
application of the reasonable person standard, a
person who has, of course, no diminished
capacity, though the MPC does provide that
diminished capacity can conceivably negate the
(2) Under CL, specific intent and higher grades of
general intent commensurate with MPC
b. People v. Wetmore
(1) Shortly after being released from the Veterans'
hospital, Wetmore enter the absent Cacciatore's
apartment under the delusion that it was his.
Cacciatore returned several days later to find
Wetmore eating his food and wearing his clothes,
and immediately called the police. Wetmore was
charged and convicted of burglary, despite the
defense of diminished capacity based on Wetmore's
long history of mental illness.
(2) The trial court drew a distinction between the
capacity to entertain the requisite mens rea and
the actual entertaining of the requisite mens
rea, and from that convicted Wetmore.
(3) The CA Supreme Court overruled the trial court,
holding the distinction it made untenable.
Capacity to entertain the requisite mens rea is
extremely relevant to the question of whether or
not defendant actually entertained it when the
act was committed. Moreover, that evidence is
subject to cross examination.
c. The more the medical community as a whole accepts the
debilitating effects of a diminished capacity, the more
likely the court will accept it as a defense. (Bright
10. Defense of voluntary intoxication
a. Voluntary intoxication that does inhibit the defendant's
ability to entertain the requisite mens rea can negate
(1) Under CL, specific intent
(2) Under the MPC, purposefullness and knowingness,
but not recklessness, though voluntary
intoxication might indeed inhibit the defendant's
ability to aver to the risk. The MPC explicitly
takes recklessness out of the voluntary
intoxication defense. Voluntary intoxication is
not a defense unless it negates the mens rea
requirement. It also does not negate MPC
negligence, because the reasonable person is not
So long as the defendant was drunk enough to have been
incapable of entertaining the requisite mens rea. The
degree of intoxication is extremely relevant to the
b. The defendant has the burden of production as to how
much she drank and how drunk she was at the time the
crime was committed.
c. People v. Guillett: Guillett got drunk and made improper
advances towards a woman. He was charged with assault
with intent to commit rape. The court held that his
drunken state negated specific intent.
d. State v. Cameron: Cameron, allegedly in a drunken state,
attacked one McKinney with a broken bottle. She was
charged and convicted of 2d degree aggravated assault
and other charged. She invoked the defense of
involuntary intoxication, but the judge refused to
instruct the jury on voluntary intoxication. That
decision was affirmed on appeal. The court was not
satisfied that the defendant had presented enough
evidence that she was drunk enough to warrant the
instruction that she may have not had the capacity to
entertain the requisite mens rea due to her intoxicated
condition. [Courts are extremely reluctant to let
defendants invoke involuntary intoxication. Unless the
evidence of severe intoxication is clear, they prefer to
keep the jury in the dark. And even when they do give
it, they phrase it in impossible terms as to prevent the
raising of a reasonable doubt. (Is not the level of
intoxication properly a jury question?)]
e. Some states feel diminished states (diminished capacity
and voluntary intoxication) should not be permitted to
negate mens rea, especially when there is no general
intent offense that could snag the defendant.
f. At CL, involuntary intoxication and pathological
intoxication (unpredictable side effect of a medication)
exculpated completely on actus reus grounds.
A. Definition: The killing of a human being by another human being.
Only humans can commit homicides.
B. Lawful homicides
1. Killing the enemy by soldiers in time of war
C. MPC defines Criminal Homicide (Section 210.1) as the purposeful,
knowing, reckless, or negligent killing of a human being.
D. Broad categories of unlawful homicides: Murders and manslaughters
1. Homicides are usually defined with reference to murder. Lesser
homicides are viewed as murder with something subtracted
from the offense.
2. At early CL, all unlawful homicides were punishable by death
(as were most felonies). The initial rationale behind
distinguishing between murder and manslaughter was to remove
less culpable defendants from the class of killers subject to
the death penalty. In making this distinction, the courts
developed the concept of malice, which they deemed to be
characteristic of murders and not of manslaughters. We have
continued this line of thinking by distinguishing between
first and second degree murders and finally by further
distinguishing between first degree murders that warrant the
3. In the 1790's, PA started the trend to separate extremely
culpable murders that warranted the death penalty from murders
that did not warrant it by distinguishing between 1st and 2nd
degree murders. 1st degree murders continued to get the death
penalty while 2nd degree murders did not.
- How it is defined depends on the jurisdiction.
- Much of homicide law revolves around the result, especially
when the mens rea is less than the specific intent to kill.
1. Core idea of what murder is: The unlawful killing of a human
being with "malice aforethought". [In NC, a homicide fitting
this description would be a 2nd degree murder.] [Also, this is
the classical articulation of CL murder.]
a. Some states refer to "malice aforethought" in their
b. Other states use language comparable to "malice
aforethought" or implicitly recognize CL requirement
that malice be associated with murder.
c. Other states specify the states of mind which constitute
2. Malice aforethought
- A legal "term of art" [read: oxymoron] because, strictly
speaking, it does not mean "malice" or "aforethought".
Rather, it is a term that captures several related mens
3-4 states of mind which qualify as malice: The law
regards each of these as moral equivalents.
a. Intent to kill (aka: "express malice" [others
aka: "implied malice")
b. Extreme recklessness- phenomenally reckless
behavior manifesting an extreme disregard for the
value of human life. (aka: Depraved heart
murder/"abandoned and malignant heart" murder)
c. Intent to inflict serious bodily injury (This is
so similar to extreme recklessness that some
don't consider it a separate species of malice.)
d. Felony murder: Those who perpetrate certain
violent felonies where death results are liable
for murder in most jurisdictions without any
showing of intent to kill or any analogous sort
of mens rea with respect to the killing. (This
category is also commonly absorbed into extreme
3. Intent to kill: the classic mens rea associated with murder
a. Intentional killings are regarded as high-level crime.
The law values human life highly [The criminal justice
system really gets going when there is a stiff on the
floor!]. So when someone intentionally kills another,
the desire for retribution, denunciation, etc. is
b. Is there a worse mens rea than intent to kill (that
might, say, invoke the death penalty?)
1. How serious was the intent
(b) Premeditated and deliberated (P&D)
2. Did the murderer enjoy committing the deed?
3. Was the killing especially "heinous, atrocious,
c. Tension in the system
(1) Desire to define the levels of mens rea in
(2) Leaving the jury with some discretion.
d. Rarely will a defendant fess up and admit intent.
Accordingly, intent to kill is extremely difficult to
prove with direct evidence. Accordingly, circumstantial
evidence is sufficient to show intent to kill.
(1) Francis v. Franklin:
(a) Franklin was charged with the murder of one
Collie. Franklin, who was incarcerated for
previous crimes, escaped during a trip to
the dentists office. He took a dentist's
assistant as a hostage, took the gun of a
guard, and proceeded to demand car keys
from several persons during his flight. He
knocked on Collie's door and when Collie
opened the door, demanded his car keys.
Collie refused and slammed the door.
Subsequently, Franklin's gun went off and 2
shots went through the door: one killed
Collie, and the other went through the
ceiling. Franklin was charged with malice
murder and kidnapping.
(b) Franklin's defense: he lacked the required
intent to kill. He maintained that nothing
in the evidence even remotely suggested
that he intended to kill Collie. Though he
admits shooting Collie, he denied he did it
"voluntarily or intentionally."
(c) The judge instructed the jury that
(1) BOP on prosecutor to prove all
elements of the offense beyond a
reasonable doubt, including intent to
(2) There is a presumption that he
intended the natural and probable
consequences of his acts, but that
presumption can be rebutted.
(d) The US S.Ct. ruled that this essentially
shifted the BOP to the defendant to prove
that he did not intend to kill his victim.
Accordingly, defendant was denied due
process. If the state makes something an
element of an offense, the prosecutor must
prove it beyond a reasonable doubt. To
instruct the jury that the law "presumes"
certain elements prejudices the jury
against the defendant in violation of the
DPC. The prosecutor cannot make his job
easier at the expense of the DPC by
shifting burdens of proof for difficult to
(e) Franklin was a habeas corpus case
(f) Franklin was convicted on a "general
verdict" of murder (as opposed to "specific
verdict") [He's guilty of murder, but we
are not sure what grade.]
To get a new trial, all the has to do is
knock out one of the mens reas (because
that could have been the one that prompted
the jury to convict the defendant.) He
knocked out intent to kill, so he gets a
new trial. (General verdicts are almost
always misused in criminal cases.)
(2) Problems for the prosecutor with intent elements
(a) Difficult to prove
(b) Difficult to argue how to draw inferences
(c) Criticalness of the jury instructions
(d) Other devices can be constructed to snag
defendants, like FM.
(3) Alternative theories of malice make the
prosecutor's job easier.
(4) The state is free, of course, to redefine the
elements of an offense as it sees fit subject to
broad constitutional restraints.
(5) The prosecutor will come to trial armed with
several different theories of culpability and she
will try to get them all submitted to the jury.
(6) The case will be submitted to the jury on several
theories and they will be asked to determine
which, if any, apply to the defendant's act
(Murder 1? if not, Murder 2? if not, VM? if not
e. Doctrine of transferred intent: If A shoots at B
intending to kill her, but instead the shot misses B and
kills C, A is liable for C's murder. The law "transfers"
his intent to kill B to C and holds him liable for the
intentional killing. Extreme recklessness is also
transferrable among victims.
f. Voluntary intoxication will negate P&D, thus knocking
down what would otherwise be a 1st degree murder to a
2nd degree murder.
4. Extreme recklessness
a. The touchstone for extreme recklessness is reckless
conduct which manifests an extreme disregard for the
value of human life. We deem utter indifference or
callous disregard for human life to be an especially
culpable state of mind. High risk behavior also warrants
the label of extreme recklessness.
b. Mayes v. People
(1) Mayes came home one night from the local saloon
drunk. He proceeded to give his wife, daughter,
and mother in law a hard time. While his wife was
shuffling her daughter off to bed, Mayes threw a
beer glass at his wife. It broke the lighted lamp
she was carrying, spraying burning oil all over
her. Mayes made no attempt to put the flames out.
She later died from the severity of the burns.
Mayes was charged and convicted of her murder.
(2) The prosecutor argued his case on an extreme
recklessness theory. The judge refused to give
the defendant's instruction that the jury must
find that he acted with intent to inflict bodily
injury upon his wife in order to convict him. (He
argued that he had intended to throw the beer
glass out a nearby door and not at his wife.)
Instead, the judge instructed the jury that if
they found that he acted with an "abandoned and
malignant heart", they could convict him.
(3) The IL S.Ct found nothing wrong with the
"abandoned and malignant heart" instruction, for
the IL murder statute explicitly deems this state
of mind to constitute malice. It found that
anyone who would throw a beer glass at one's wife
without the slightest care if it would hit her or
not has a state of mind culpable enough to
warrant a finding of malice on a murder charge.
Even if he did not intend to kill her, he is
liable for the result of his extremely reckless
c. Russian roulette/Russian poker cases: the law holds
there the is NO justification or excuse for playing such
"games". Such conduct has zero social utility. Playing
them manifests an extreme disregard for the value of
d. MPC recklessness requires that the actor at least have
averred to the risk before acting. The actor must
"consciously [aver to and] disregard a substantial and
e. However, with extreme recklessness, courts tend to play
fast and loose with the requirement that the actor have
consciously disregarded the risk. In doing so, they will
(1) Knowledge or awareness of the risk
(2) Knowledge or awareness of society's
disapproval of the unjustifiably dangerous
as surrogates for conscious disregard of a substantial
and unjustifiable risk.
- In determining whether or not a defendant has
acted extremely recklessly, different
jurisdictions will apply three different tests
(a) RPS (objective standard of what is
(b) Subjective standard: the defendant must
have appreciated the risks that accompanied
(c) Pseudo-subjective/objective formula.
f. Voluntary intoxication will not negate extreme
recklessness. (MPC explicitly provides that voluntary
intoxication will not negate recklessness.)
- Court generalization: intoxication does not
g. Intent to inflict serious bodily injury: a subset of
extreme recklessness that is often absorbed into extreme
recklessness. ["I want to beat you to within an inch of
h. In many jurisdictions, intentionally using a dangerous
or deadly weapon is enough for the jury to find malice.
The rationale behind this seems to be that the actor by
using such a weapon risks serious bodily injury, and
accordingly, is extremely reckless behavior.
i. Other items, like cars, can be deemed dangerous weapons
under certain circumstances.
j. Drunk driving cases: Pears v. State; People v. Watson.
(1) In these cases, drunk drivers caused accidents in
which people died, and they were charged with
murder. How could such cases ever result in
murder convictions? The courts found basically
that their conduct did manifest an extreme
disregard for the value of human life.
(2) Watson at least took actions that did manifest
such a disregard, but Pears may not have.
(3) In Watson, the court held that Watson's reckless
behavior was driving to a bar and getting drunk
knowing that he would have to drive home.
(4) Justice Bird dissented in Watson, arguing that
under the court's ruling, charges of murder under
extreme recklessness theories would just "creep
up" upon evidence of drinking. She believed that
simply getting behind the wheel of a car drunk
was insufficient to establish an act that was
"likely to kill". Moreover, it does not follow
from that he manifested an extreme disregard for
human life at the time of the accident; any
inference that he did does not follow.
(5) The courts were basically using 200 year old
common law murder to snag drunk drivers who kill.
5. First degree murder
a. PA in the 1790's was the first jurisdiction to
distinguish between 1st and 2nd degree murderers as a
way of removing less culpable murderers from the class
of homicides punishable with the death penalty.
b. Procedure to get a 1st degree murder conviction
(1) The defendant must be guilty of murder, that is,
the killing had to have been committed with
malice aforethought, in this case with the
specific intent to kill.
(2) Must meet one of the following criteria
(a) Subjective criteria: Was there
Premeditation & deliberation? (P&D)
(b) Objective criteria: Special type of
weapon or method of killing. When one
of these is shown, the judge will not
instruct the jury that specific
intent to kill is required in order
to convict for 1st degree murder.
- lying in wait
- armor piercing ammunition
(1) People v. Benjamin: Benjamin was
convicted of 1st degree murder for
killing a guy he got into a quarrel
with in a bar by lying in wait. The
court held that the state need not
prove specific intent to kill or that
he P&D'ed the killing because it had
proved that he had committed the
murder in one of the statutorily
(2) Proceeding under an objective
category of killings that warrant a
1st degree murder conviction make the
prosecutor's case much easier.
(A) Closes out spurious or
(B) Easier proof: all you
have to show is that the
defendant did the deed
in one of the enumerated
(c) 3rd criteria: sentencing discretion on part
of judge or jury.
(d) First degree felony murder
c. Mercy killers get sucked into the P&D category. Do we
consider them culpable enough to warrant a conviction
for 1st degree murder? Some courts have refused to hold
them liable for that level of culpability.
d. Danger: by punishing homicides that fit into particular
objective categories as 1st degree murders, we open up
the possibility that we could execute someone who did
not intend to kill.
e. Premeditation & deliberation (P&D)
(1) P&D requires a specific intent to kill.
(2) Premeditation: forming the specific intent to
(3) Deliberation: reconsidering and reaffirming that
decision to kill in cold blood. (Passion and fear
may inhibit the perpetrator's ability to
(4) In theory, it distinguishes heat of the moment
formation of intent murders from those where
there is an opportunity where the actor could
have and did reflect on his decision to kill and
that he affirmed that decision. However, courts
no longer enforce that distinction strictly. They
do not second-guess the jury on the question of
P&D. Additionally, since not all 1st degree
murders are punishable by death anymore, P&D is
not the critical distinction it used to be.
(5) United States v. Watson
(a) Watson was convicted of the 1st degree
murder of a police officer. [This is the
"It's not worth it" case.] He attempted to
argue that there was insufficient evidence
to find he committed the killing with P&D.
(b) The court found there was an appreciable
elapse of time in which the jury could have
found that he did turn over his decision to
kill in his mind and did reaffirm it, and
therefore, there was P&D. .
(1) By hesitating after the officer for
the second time said "It's not worth
(2) By grabbing the loose gun and
pointing it at the officer's chest
instead of fleeing. (immobilizing the
Therefore, the state had enough evidence to
get to the jury.
(6) Generally, in order to show P&D, there had to
have been some appreciable lapse of time in which
the actor pondered over his decision to kill and
reaffirmed it. The time need not be long. In NC,
P&D can occur in the blink of an eye, and P&D can
occur in an elevated state. Other states, like
CA, have required some evidence of planning or
motive in order to prove P&D.
(7) However, lapse of time is not enough. You also
must show that the actor turned his decision to
kill over in his mind during the lapse of time.
(8) Voluntary intoxication can negate P&D, thus
knocking down an otherwise 1st degree murder to
2nd degree murder, but judges still leave P&D to
(9) The jury may infer the specific intent to kill
from the surrounding circumstances.
6. Felony murder (FM)
a. According to the felony murder doctrine, if a death
occurs during the commission of a felony inherently
dangerous to human life in which you participate, you
are liable for murder (1st and/or 2nd degree, depending
on the jurisdiction) in addition to the felony.
b. FM is essentially SL; by imposing it we deviate from
individualized inquiries into fault and culpability.
c. Not even the MPC could shake the FM rule. However, the
MPC treats FM as a proxy for extreme recklessness:
participation in an inherently dangerous activity that
manifests extreme disregard for the value of human life.
d. FM drags in accomplices who participated in the
commission of the felony but who had little if nothing
to do with the killing, and it makes them liable for 1st
e. FM shoots through
(2) Aggravating factors normally required for 1st
degree murder upgrade.
(3) A&A/derivative liability restrictions
(4) Individualized inquiry
Malice is established by the fact that you committed an
inherently dangerous felony as well as the aggravation
to 1st degree murder.
f. Not all states have an automatic upgrade to 1st degree
murder for felony murder. Those states regard felony
murder as equivalent to 2nd degree murder. In NC, 1st
degree murder is automatic for felony murder.
g. FM also softens the causation requirements normally
needed for murder. Prosecutor need not show but for
causation surrounding the murder.
h. Felonies that come under FM rule
(1) Some states have expansive lists of felonies that
will invoke the rule. These lists usually include
some of the more dangerous felonies, like arson,
rape, burglary, robbery, etc.) (In many
jurisdictions, a death that occurs during the
commission of one of these felonies counts as a
1st degree FM's whereas deaths occurring other
felonies are 2nd degree FM's.)
(2) Other states have short lists of felonies and a
"catch all" phrase that brings in inherently
dangerous felonies not enumerated in the statute
and possibly some distinction between 1st and 2nd
degree felony murders.
(a) Inherently dangerous felony and/or
(b) Other crime committed in an inherently
(3) NC's FM statute mentions 7 felonies (big-ticket
felonies, like robbery, arson, 1st degree rape,
etc.) which can invoke the FM rule if a death
occurs during their perpetration plus a catch-all
phrase that brings any other felony in which a
weapon is used into the coverage of the FM rule.
i. Two perspectives on FM
(1) Is it good policy? What principles underlie it?
Are those principles good ones? (Same problems
(2) How do you as a court build a body of rules
around FM to properly apply it?
j. Policy: what are the rationales behind the FM rule?
(1) General deterrence of felonies? (But why then
wait for a murder to occur before bringing the
full weight of the criminal sanction down upon
(2) Deterrence of botched felonies: if you are going
to do the deed, do it safely.
(3) The fact that someone committed a felony
inherently dangerous to human life is ipso facto
evidence that someone acted with extreme
recklessness. Commission of such a felony is not
a bad proxy for actual malice or real
(4) Retributivist vein: Lets not waste our time with
someone who had done this deed with an
individualized inquiry into fault and
culpability. (Denunciation too)
(5) It closes the possibility of loopholes through
which culpable murderers do not get the
punishment they deserve.
(6) However, the history of the FM rule
strongly suggests it was put on the books
because it was politically popular, and it
continues to remain popular. Now, it's
basically an accepted practice. (Jesse
Helms defeated Harvey Gantt in part with a
felony murder argument.)
(7) FM resonates in the community, and it has some
legal rationale, albeit not a whole lot.
Accordingly, it is tough for courts to build
rules governing the application of the FM rule.
(8) Is it overinclusive for
(a) Murder itself?
(b) 1st degree murder? (17 year old wheelman
ends up on death row.)
k. People v. Stamp
(1) Stamp, Koory, and Lehman committed an armed
robbery of a business. Though they directly
harmed no one, one Honeyman had a heart
condition, and shortly after the defendant's
departed (15-20 minutes), Honeyman had a heart
attack from which he died. All three were charged
with felony murder. At trial, three doctors
testified to Honeyman's condition, and they
concluded that his heart attack was caused by a
sudden and traumatic experience that upset his
system. (Robbery was but for cause of death.)
(2) Defendants argued that the FM rule did not apply.
The court disagreed, finding that the case was
under the plain meaning of the statute. The
killing need not be wilful or deliberate; it can
be a wholly accidental killing and still be
covered under the FM rule. Malice is presumed by
committing an inherently dangerous felony.
Furthermore, there is no requirement that the
death be foreseeable; the perpetrators are held
strictly liable for all deaths that occur during
the course of the commission of the felony.
(3) They probably did act with extreme recklessness,
but there are no aggravating factors. Do they
really deserve to be convicted of 1st degree
murder? 2nd degree murder may have been more
(4) Without the FM rule, the prosecutor would have
had to prove
(b) causation, and
And along with causation, the prosecutor would
have had to prove that the death was foreseeable
in order make the death a proximate cause of the
(5) Should the wheelman get the same punishment as
his fellow perpetrators though he was not
immediately present when the death occurred?
- If he knew his cohorts were armed and
intended to commit an armed robbery, then
maybe so. His culpability is essentially on
par with theirs.
l. Role of proximate causation in FM
(1) Majority rule: Causation is relevant, but FM
limits its role
(a) But-for causation
(b) One continuous transaction
(c) [Inherently dangerous felony]
(2) Minority rule: proximate cause (foreseeability of
the death and possibly the manner of death) is
required in addition to the other elements listed
in l.(1). (Some courts apply proximate cause with
a vengeance in order to reign in the application
of the FM rule.)
*. Doctrine of merger
- If the underlying offense in included in the
elements of murder, the underlying crime is
subsumed into murder, and the felony will not
suffice for application of the FM rule.
m. Carolyn Cautious hypothetical on page 356: She's a
gonner under CA's expansive FM statute; she would be
guilty of 1st degree murder. She committed a burglary by
breaking into Tom's trunk, and it was the but for cause
of his death in that but for her crime he would not have
run out into the street in an effort to stop her. The
foreseeability that Tom might do this or that he might
die from getting hit is irrelevant to the question.
How to remove her case from the expansive coverage of
(1) Remove automatic upgrade to 1st degree murder
(2) Remove burglary from the list of offenses
subject to the FM rule
n. People v. Gladman and the nexus between the killing and
the felony committed; when does the felony end?.
(1) Gladman held up a deli and fled on foot. About 15
minutes later while walking through the parking
lot of a bowling alley, he spotted a cop and hid
under a car. The cop spotted and accosted him, at
which point Gladman shot and killed the cop. He
was charged and convicted of FM, whereby he
committed a killing within his immediate flight
from a felony.
(2) Defendant argued on appeal that as a matter of
law, he did not kill the officer in the immediate
flight from a felony, and permitting the jury to
conclude that he did was erroneous.
(3) After considering older, arbitrary rules where
the FM doctrine was limited in killings that
occurred after the commission of the felony
(abandoning the loot: no FM, Killing on premises:
FM), the court noted that it is now within the
province of the jury to determine whether or not
the killing done during escape and flight from
the scene of the crime was done "as part of the
underlying transaction"...unity of "time, manner
(4) The court also noted that most of the states have
adopted the "res gestae" formula, whereby the
perpetrators have to make it to a place of
relative safety before the crime can be said to
(5) FM applies when the killing occurs
(a) During the perpetration of the felony, or
(b) During immediate flight therefrom
(6) NY now uses the "immediate flight" formula for
determining whether or not FM is applicable. It
found that the jury could properly conclude that
Gladman did the deed in the immediate flight from
the felony given the time and space proximity as
well as other factors, including whether or not
he had reached a place of relative safety (he had
not) and whether or not he knew he was being
pursued (he did).
(7) If the prosecutor had wanted to, he could have
probably gotten him without the FM rule by using
standard murder analysis (death, causation,
malice, aggravating circumstance)
o. Accomplice liability
(1) People v. Calbatero
(a) Payroll robbery committed by 6 guys. After
procuring the loot, one of their number
(Dasalla) shot another of their number
(Ancheta) when the latter fired at two
third parties who happened on the scene.
Ancheta later died. The whole gang was
charged and convicted of FM
(b) Defendants argued that the death of
cofelon to the felony did not fall
within the scope of the FM rule, and
therefore the prosecutor should have
charged them under another section,
putting to the jury the question of
whether or not the death was
accidental. The court rejected this
argument, holding that the statute
makes any killing that occurs during
the commission of a felony subject to
the FM rule.
(c) Defendants also tried to argue that
accomplices should not be held liable
when one of their number deviates
from the plan and commits the
homicide. The court held that the
doctrine of deviation from the plan
was not available under the FM rule,
as the killing was done during the
course of a felony in which they
(2) Does the fact that one of the perpetrators got
killed remove the case from FM?
(a) Majority rule: Not enough to remove the
case from FM
(b) Minority rule: Yes, it is enough (Waters,
pg. 374: heroic act by cofelon to save the
life of a victim at the hands of his crazy
(3) People v. Hickman: Minority rule holding that
identity of the shootee is the identity that
matters in assessing FM liability.
(a) Two burglars were fleeing unarmed from the
scene of a crime. A cop in pursuit mistook
a shadow for one of the burglars, fired,
and killed a police detective.
(b) Court find they are liable for the FM. It
rejects the defendants' argument that the
focus be placed on the shooter, and in
doing so, restricting FM to those instances
when the shooter is the one who did the
deed. Instead, the court holds that the
identity of the shooter is irrelevant and
instead focuses on the shootee. [This is
the minority rule.]
(1) If shootee is an innocent victim,
liable for FM
(2) If shootee is one of the cofelons,
then no FM liability.
(4) People v. Washington: Majority rule that the
identity of the shooter is the identity that
matters for purposes of assessing FM liability.
(a) 2 men hold up a gas station. The owner upon
detecting the holdup grabs his gun. When
one of the felons enters his office, the
owner shoots and kills the felon. The owner
shot and wounded the other felon as he was
trying to escape.
(b) The court held that the surviving felon
could not be held liable for the FM of his
cohort in that he was not the one who shot
and killed him. The identity of the shooter
is the identity that matters; the identity
of the shootee is not important. Who gets
killed is largely fortuitous, and thus not
indicative of culpability.
(c) Was this killing justified, and thus, not
7. Capital punishment/Death Penalty
a. For facts and figures, see notes from 29-OCT-92.
b. Policy arguments for the death penalty
(1) The death penalty allows society to vent its
retributivist impulses. Convicts may think life
imprisonment is worse, but society thinks
otherwise. Denunciation is also served somewhat
by the DP. [I am personally not convinced that
the death penalty serves retributivist goals. The
desire for retribution seems to be an emotional
response, the magnitude of which is inversely
proportional to the distance (in a figurative
sense) from the victim. If our goal is truly a
rational inquiry into culpability and
dispensation of punishment, such an emotional
response may not be justified.] Lex Talionis
(2) The death penalty serves to deter would be
killers. [The evidence that the DP is a deterrent
is at best inconclusive, but is suggests DP is
NOT a deterrent.]
(3) It certainly incapacitates murderers.
(4) Although it might serve to rehabilitate other
criminals, is certainly does not rehabilitate the
one put to death.
(5) Cost of life imprisonment vs. death penalty [But,
litigation costs are so high that DP may actually
be more expensive than life imprisonment w/o
parole. Society is unwilling to have a DP without
the procedural safeguards, and those safeguards
c. Policies against death penalty
(1) A waste of economic resources by plowing them
into protracted DP litigation instead of
investing in the country.
(2) Danger of putting an innocent person to death.
(3) Biased administration, principally against
blacks. This was a major impetus behind the
S.Ct's decision to declare the pre-1972
implementation of the death penalty
unconstitutional and to stimulate the states to
reform their statutes.
(4) Arbitrariness: some get it, some don't. This
offends our sense of justice.
(5) The ones who have to make the decision are
fallible human beings who make mistakes.
(1) At early CL, all unlawful homicides along with
most felonies were punishable by death. People
often sought clerical clemency.
(2) Later, the courts began distinguishing between
murders and manslaughters: murderers still got
the DP, but manslaughterers did not.
(3) PA chimed in during the late 1700's by
distinguishing between 1st and 2nd degree murder,
again as a way of curbing the imposition of the
(4) Through the 19th century, most states still
imposed an automatic DP for 1st degree murder.
This led to such aberrations as false acquittals
by juries that did not believe the accused should
get the DP. The discretion that was employed was
under the surface and not officially recognized
(5) By the 20th century, most states had moved to a
discretionary system whereby the jury decided
whether or not the accused would get the DP at
the same time they decided guilt or innocence.
This was known as the era of unbridled jury
discretion, as the jury was given absolutely no
guidance on how or when to apply the DP.
(6) In the S.Ct. case Furman v. GA, the S.Ct. struck
down all unbridled discretion statutes, citing
the irregularity and inconsistency in the
application of the DP under these formula as well
as the shear arbitrariness of its application.
(7) The states hurriedly reenacted their DP statutes
in an attempt to comply with Furman. 2 approaches
(a) Guided discretion: After a trial on guilt
or innocence, a second sentencing trial
would be held where aggravating and
mitigating factors would be presented to a
jury (including evidence that would have
been inadmissible at trial) and the jury
would then weigh the factors against one
another and decide on whether or not to
impose the DP. Upheld in Gregg v. GA.
However, states are not required to use
juries at this stage. The court has also
refused to impose a list of definitive
aggravating and mitigating circumstances,
leaving the states with the discretion to
formulate their own. Most states have non-
exclusive lists of agg and mit factors.
(b) Return to mandatory DP for 1st degree
murder. (NC did this) This formula was
struck down in Woodson v. NC because it
permitted no inquiry into moral culpability
that might warrant or not warrant the DP.
(false acquittals and a return to
underground unbridled discretion). Not even
a mandatory DP for killings done by persons
serving long prison terms is
(c) Hybrid scheme: Flavor of guided discretion,
but the questions put to the finder of fact
are rather rigid. (Constitutional under
Jurek v. TX.)
(1) Was there intent to kill?
(2) Does the killer pose a future danger?
(3) [Did the victim not bring on the
If so, DP is automatic. However, gradually
this scheme is being transformed back into
a guided discretion scheme.
e. What crimes should warrant the DP. Well, certainly not
parking or traffic violations. The S.Ct. basically has
said that DP is warranted only when a death is involved.
When the DP was used to punish rape, the evidence
overwhelmingly indicated black men who raped white women
got the DP a disproportionate amount of the time. (Coker
v. GA). But inside the broad limits of
constitutionality, the S.Ct. is not in the business of
telling the states what punishments they can or cannot
prescribe for crimes.
f. Explicit "super-mitigating" factors
(3) Age of perpetrator
S.Ct. has visited this issue
(a) 16 & up: may be executed under current
(b) Under 16: legislatures must be absolutely
clear they intend for persons under 16 to
be covered under their DP statutes.
(4) Mental incompetence: S.Ct.- not a compulsory
supermititgator, but merely one of several
mitigating factors that may be considered.
Executing a mentally incompetent person is not
illegal as a matter of law.
(5) Felony murder
(a) Minimum amount of mens rea is required
(b) The killing must be wildly disproportionate
to the crime.
(c) If the individual did not kill, then he is
not subject to DP, unless
(1) He was a major player in the crime
(2) Showing of malice/minimum mens rea
Wheelmen are not good DP candidates.
g. Tension in DP
(1) Need for discretion, especially guided discretion
since humans are fallible beings.
(2) Curbing the abuse of discretion.
h. It is constitutional to discriminate in jury selection
on the basis of the ability to evaluate aggravating and
mitigating circumstances. But in cases with racial
overtones, prosecutors who reject jurors have an
additional burden to show that they did not discriminate
on the basis of race.
i. There are limitations on what the prosecutor can say to
the jury that might inflame their passions and move them
away from the rational inquiry.
j. Unfortunately, poorly educated public defenders are the
ones who must put mitigating circumstances to the jury.
Evidence concerning a person's background is not usually
understandable to a defense atty. However, upon a
showing of special need, a defendant can hire at
government expense an expert to examine evidence
regarding the accused's background and synthesize it
into a presentable form. (Aker v. OK)
k. In order to kick the offense up to capital murder, there
must be some aggravating factor. However, states are
given wide latitude in determining what those factors
(1) Cop killers
(2) Peculinary gain/contract murder
(3) Felony murder
(4) "Especially heinous, atrocious, or cruel": too
nebulous and expansive- could be found in most
any murder case. Further definition is needed.
The higher the hurdles the legislature sets up, the less
likely the jury will be able to use its discretion in
order to refuse to impose the death penalty.
1. Voluntary manslaughter
a. Definition: an unlawful intentional homicide committed
without malice in the heat of passion upon sudden and
- The defendant must be so guided by passion that
he is unable to form the deliberate purpose to
b. This distinction developed initially as a way of curbing
the use of the DP. Now, it no longer serves its original
function now that we have other mechanism for deciding
who gets the DP; all that matters is how much time a
defendant will do.
c. 4 elements of voluntary manslaughter
(1) Sudden and adequate provocation measured in some
(a) Decided by the jury
(b) According to the reasonable person standard
(2) Must have in fact been provoked
(3) Defendant did not cool off
(4) No lapse of time in which a reasonable person
would have cooled off.
d. NC alternative: Imperfect self-defense: The defendant
appears to have acted in self-defense, but for some
reason the defense is unavailable.
(1) Defendant started the fray in which he had to use
(2) Unreasonable and mistaken belief that he had to
act in self-defense.
e. The intent alluded to by the offense of voluntary
manslaughter is not malicious intent (which would invoke
the charge of murder), so it is not always the case that
intentional killings are malicious.
f. People v. Walker: (case where John Stenneth approached
several people sitting on a porch, and when they refused
to gamble with them, proceeded to try to cut 2 of them.
Walker eventually overpowered Stenneth and slashed
Stenneth's throat with his own knife.)
Why should Walker not be punished as a murderer?
- He was adequately provoked
(1) Stenneth attacked him first
(2) Stenneth actually cut him, drawing
g. People v. Berry: (case where husband's new wife return
from a trip to Israel declaring she's in love with
another man who proceeds to sexually taunting and
tormenting her husband. He attempts to strangle her
twice, and he finally succeeds after she returns from
the hospital after the second attempt. He was convicted
of murder, but appeals, charging the jury should have
been instructed on voluntary manslaughter.)
The court holds that the provocation inciting him to
kill her was cumulative and sufficient to cause a
reasonable person to lose his cool. [In most
jurisdictions, the provocation has to be sudden as well
as adequate: cumulative provocation will not invoke the
h. At CL, the judges decided what was and was not adequate
provocation; they were extremely reluctant to let juries
decide these issues. The ended up recognizing several
categories of provocation that would kick the offense
down to VM.
(1) Physical attack (imperfect self-defense)
(2) Involvement in mutual combat (chance medley)
(3) Witnessing one's wife's (spouse's) adultery
The cuckhold's killing of his
(a) Wife (spouse)
Would invoke VM. However, at CL, it was not clear
if the defense was a 2 way street.
(This exception arose out of the archaic idea
that women were the property of their husbands.
In some jurisdictions, killing of an unfaithful
wife and/or her lover was completely justified,
and thus, exculpating)
(4) Mere words are insufficient to mitigate an
unlawful homicide to VM. (now and then)
- Common themes running through these categories.
(5) Intense emotion, principally anger.
(6) Male ego/pride
(7) Physical violence
(8) Loss of marital integrity
g. Under the modern approach, juries get to decide what is
and what is not adequate provocation according to the
reasonable person standard. Under this approach,
cumulative provocation is being recognized more and more
as capable of invoking VM.
(1) Would a reasonable person have been provoked to
exceed the bounds of reason and act irrationally?
(2) Was the actor actually provoked?
h. What role individual characteristics play in the
determination of provocation:
(1) Majority: Consistent with the RPS, individual
infirmities (mental conditions, etc.) can play no
role in determining whether or not a person was
suddenly and adequately provoked.
(2) Minority and MPC: Individual infirmities may play
a role in the determination.
h. Should a case in which a battered wife/girlfriend who
kills her abusive spouse/boyfriend go to the jury on VM?
[I would say yes, as this is clearly a case of
cumulative and sustained provocation.] (The battered
wives cases have been treated under the doctrine of
self-defense, which exculpates completely is proven by
the defense. However, SD requires that the threat of
death or severe physical injury be imminent. Thus,
battered wives who kill their husbands when their
husbands are in a vulnerable state cannot invoke the
- Should the emotions of fear and anger make a
difference under the law? Both are intense
emotions that prompt one to act rashly and
without due deliberation. However, fear usually
involves some thought and deliberation. (Fear can
certainly arise during mutual combat.)
i. VM has an undertow that suggests that the victim's
conduct somehow brought about the defendant's irrational
conduct: the victim's own actions somehow reduce the
mens rea of the defendant. In some circumstances, the
defense effectively puts the victim on trial in order to
get a voluntary manslaughter conviction in lieu of a
j. [See notes for 06-NOV-92 for a discussion on the
reasonable person standard.]
2. Involuntary manslaughter
a. Definition: An unintentional (and probably accidental)
killing committed without malice as a result of the
defendant's grossly negligent or reckless behavior.
b. INVM is usually the lowest grade of unlawful homicide
punishable in many jurisdictions, though some
jurisdictions retain their lower grades of culpable
homicide. [Dealing with this area of the criminal law
raises policy questions as to where does criminal law
end and tort begin.]
c. State v. O'Brien: (case in which a train rail switch
operator negligently fails to attend to his duties,
resulting in a train derailment. One passenger died as
a result of the injuries he sustained in the derailment.
He was convicted of INVM.) O'Brien was basically guilty
of an omission based on failure to carry out a
contractual duty to the RR company, the third party
beneficiaries being the passengers on the train.
Accordingly, he has no actus reus defense. The only
question is what was his mens rea? O'Brien attempted to
argue that in order to be convicted the jury had to have
found that his will concurred with his act. However, the
court found that he was grossly or culpably negligent,
and that level of mens rea was sufficient to convict him
for INVM; wilfulness is not required, and an omission is
a sufficient act upon which to convict him.
d. "Gross negligence"
(1) A level of culpability somewhere between tortious
negligence and MPC recklessness.
(2) A person is grossly negligent when he fails to
aver to a substantial and unjustifiable risk
constituting a gross deviation from the standard
of a reasonable person. (A neatly packaged
description of a mens rea requirement ready to be
presented to a jury. It expresses the minimum
level of culpability required for conviction of
e. Commonwealth v. Welansky: (case involving a fire in a
popular night club; 491 people died. The fire exits were
inadequate and obstructed in violation of the fire code.
Though the owner was in the hospital at the time of the
accident, and had been there for several weeks, he was
charged and convicted of the involuntary manslaughter of
the victims nearest the inoperable fire exits (easy but-
for cause attribution.)) Welansky is guilty of a
statutory omission [akin to negligence per se]. The
court opts for a "recklessness" standard of culpability.
Despite the court's colorful language ("wanton and
reckless conduct"), they do not articulate MPC
recklessness, which requires that the actor have at
least averred to the risk before consciously
disregarding it. Instead, they consider failure to aver
to the risk when he should have as reckless behavior;
this is a cut below MPC recklessness. Given that he was
preparing to open a new room, Welansky was well aware of
fire codes and regulations regarding the number and
adequacy of the fire exists. Thus, it affirmed his
f. CL courts do not distinguish or clearly articulate the
various levels of culpability. The judges writing these
opinions are not steeped in the MPC. Thus, they usually
do not clearly distinguish between negligence and
g. The law treats near miss culpabilities as kicking the
offense up to the next level.
(1) Extreme negligence is almost intent, so we treat
it as malice aforethought in murder cases.
(2) Gross negligence approximates recklessness, so
offenses requiring recklessness can potentially
snag grossly negligent defendants.
h. State v. Williams: (case of Indian couple who did not
take their baby who had an abscessed tooth to the doctor
for fear that social services would put the baby in
foster care. The baby eventually died from complications
from the abscessed tooth, and the parents were charged
and convicted of involuntary manslaughter.) Though the
court concedes that in most jurisdictions the minimum
level of culpability is gross negligence, but by statute
in WA the level of culpability is ordinary negligence.
The court found that they breached the duty of care to
be expected of a reasonable person by not taking the
baby to the doctor when it became clear that the baby
was severely ill, and so they are criminally responsible
for the baby's death.
- Williams presents the problem of people from
diverse cultural backgrounds being held to laws
and standards laid down by white Anglo-Saxons.
Was their fear that social services would take
their baby away from them justified?]
- As a statement to its own character, the state
frown on arguments asserting "reasonable beliefs
of governmental inadequacy". The law hesitates to
make this concession.
- There is no consensus on how to deal with these
i. Strong v. People: The leader of a cult who believes in
mind over matter is convicted of involuntary
manslaughter when he plunges three knives and a hatchet
into the chest of a new follower, resulting in the
follower's death. He professed that he honestly believed
that the wounds would not harm him, and therefore he did
not aver to the risk. The court agrees with him and
reverses his conviction. The court talks about
negligence in the language of recklessness. [Now, did he
probably aver to the risk? DEFINITELY!!! Even though he
probably took steps to mitigate the risk (indicative of
the fact that he probably averred to the risk.)]
- At what point to beliefs become aberrant enough
to merit the criminal sanction? When these cases
involve children, the courts are especially
willing to come down hard on parents who hold
non-mainstream beliefs regarding medical care.
3. Misdemeanor manslaughter
a. MM is essentially "bush-league" felony murder. It
punishes persons for deaths that occur during their
commission of certain types of misdemeanors, usually
dangerous misdemeanors. However, there are
(1) Proximate cause limitations
(2) Foreseeability limitations
b. The MPC flatly rejects misdemeanor manslaughter: under
the MPC, the lowest level of culpable homicide is
negligent homicide. In fact, many jurisdictions no
longer recognize it as a crime, though some cling to the
c. This crime makes it possible to convict someone who has
virtually zero culpability of criminal homicide. This
somehow offends our sense of justice.
4. Vehicular homicide
a. A statutory offense enacted to effectuate convictions of
drivers who kill where a conviction could not otherwise
b. NC has both felony and misdemeanor vehicular homicide
legislation. [The felony vehicular homicide statute is
usually used to snag drunk drivers who kill.]
c. The existence of these statutes does not preclude a
malice murder charge against a driver who kills.
A. Causation in criminal law is roughly akin to causation in tort law;
it is a part of the same mishmash of law.
B. Philosophical and practical issues
1. Criminal law is not interested in shifting liability to
compensate monetarily victims of harm or encourage economic
efficiency; that is the realm of tort law.
2. Criminal law has different goals from tort, like moral
condemnation, deterrence, etc.
3. Causation is usually not the issue in criminal law that it is
in tort law. Primarily this is because many crimes have no
result element. And when it does matter, it is usually fairly
obvious that causation is present, and so the inquiry will
shift to other areas.
[We grade crimes according to
- mens rea
C. Causation has two dimensions
1. Cause in fact (but-for causation)
2. Proximate causation ("legally relevant" causation)
D. Cause-in-fact/but-for causation
1. Regina v. Martin Dyos
a. This was the case of a group of 5 youths attacking a
group of 7 youths after discovering they were messing
around with the girlfriend of one of their number.
During a street brawl, one of the 7, RM, died from
multiple head wounds. One of those wounds was caused by
MD when he threw a brick at RM's head. RM died from two
wounds: one to the forehead, and one behind his ear.
b. The coroner testified in part that
(1) He could not determine which wound came first
(2) RM might have recovered from either injury if it
were the first to have been caused. [cringe!]
c. The court poses the but-for cause question, asking
whether RM would have died when he did but for MD's act?
The court concludes that it cannot say, so MD walks.
d. Actually, had the prosecutor had been better prepared,
he still could have gotten MD. For example, if he could
have shown that in injuring RM MD put him in a more
vulnerable position making him more susceptible to
injury, say, from a passing bus, then he could have
gotten the conviction he sought (RM was lying in the
roadway after the first injury).
2. Generally speaking, you must prove but-for the actor's action
the victim would not have died when he did in the way he did.
At minimum, you must show that the defendant's act accelerated
the victim's demise.
a. John shoots Bill in the foot, intending to kill him.
Bob shoots Bill in the heart, killing him.
b. John is not a but for cause of Bill's death, and though
he did not succeed in killing Bill, his conduct is
culpable enough to warrant punishing him.
(1) Attempted murder
(2) Assault with intent to kill
(3) Criminal battery [?]
c. Bob, however, is the but for cause of death, so he is
open to a murder charge and conviction.
a. John and Bob shoot Bill while he is alive. Either wound
alone would have been sufficient to kill him.
b. Both go up for murder.
a. John and Bob shoot Bill while he is alive. Neither wound
alone would have been sufficient to kill him, but the
two together caused Bill's untimely demise.
b. Both go up for murder (both are sufficient material
causes of Bill's death).
c. Same hypothetical, but Bill does not die immediately:
they both are still liable.
6. But-for cause analysis works by hypothesizing that the cause
did not occur and asking the question, "Would the result have
occurred anyway?" Answering "No" means that the cause was a
7. If one injury weakens a victim, making him more susceptible to
a second injury, and he later dies from a subsequent injury,
the first is liable for his murder.
a. John shoots Bill, killing him. Bob comes along and
shoots Bill's dead body, hoping to kill him.
b. John is solely liable for Bill's murder. Bob is liable
at most for an attempt.
a. John knifes Bill, severely injuring him but not killing
him. Bob comes along and finishes Bill off.
b. Bob is clearly liable for Bill's murder. As for John, it
will depend on his mens rea.
E. Proximate causation
1. Cause-in-fact is not enough to establish the causation
element. You must show additionally that the defendant was the
proximate cause of the result, that is, his cause is legally
2. Unlike cause-in-fact, proximate cause entails questions of
policy, mainly at what point do we cut off the causal chain
and hold defendant's liable for the causes they inflict after
3. People v. Benge
a. Benge was the foreman of a RR rail repair gang. He
misread a train arrival time book and sent his crew out
on the tracks to replace part of the rail. He did not
have enough time to finish the job. A train came down
the tracks and derailed as a result of the rails being
taken up; one passenger died. Benge was charged with
involuntary manslaughter (grossly negligent conduct).
b. Benge was a but-for cause, because the accident would
not have happened had he read the time book correctly.
However, he pointed to other but-for causes that could
have equally been responsible for the accident. (train
engineer, flagman, supervisor.
c. The court finds against Benge. They conclude that his
culpable negligence was the primary substantial cause of
the accident. His negligence created the risk of death,
and accordingly, he is the one most at fault.
4. Commonwealth v. Rhoades
a. Defendant set fire to a Chelsea apartment, and a
firefighter sent to fight the blaze collapsed and died
from the heat. Rhoades was charged with arson and murder
b. The court reverses his conviction on the grounds that
the jury instruction were overbroad in that they
permitted the jury to convict if they found that Rhoades
was in any way responsible for the firefighter's death,
no matter how remote the cause. He had to have been the
substantial/"efficient material" cause of death in order
to be convicted. [Proximate causation is a limitation on
the application of the FM rule.]
5. De minimus injury: an injury which makes the victim especially
susceptible to a subsequent injury, whether that subsequent
injury be due to negligence by the health care provider or
some other cause. (finger cut vs. broken arm)
6. US. v. Hamilton
a. The defendant beat up a man in a bar brawl. While at the
hospital, the victim pulled out his tubes and
subsequently died of asphyxiation. He was charged and
convicted of manslaughter.
b. Defendant argued that the victim caused his own death by
pulling out his tubes, and accordingly, he should not be
held liable for the victim's death.
c. The court disagreed. It believed that the injuries the
defendant inflicted upon the victim were the cause of
death, and therefore he is guilty of manslaughter. He
started a chain of causal events that led to the
defendant's taking of his own life.
7. When intervening causes are dramatically culpable on their
own, courts are more willing to cut off the liability chain
and not hold the defendant liable.
8. The defendant's culpability is especially relevant in whether
or not the defendant will be held liable for the result of
intervening causes. (A higher mens rea fortifies the causal
inertia of the defendant's act).
V. Accomplice liability/Complicity
A. Accomplice liability concerns intentional assistance in criminal
conduct. If is a way of snagging all defendants who divided the
elements of the crime among their number as well as those who
assisted in the perpetration, concealment, etc. of a crime.
B. Derivative liability: the principle behind accomplice liability. A
defendant who aids and abets is guilty of the target offense itself.
The offense is not a separate crime in and of itself. The range of
first line liability for the offense is expanded.
C. At CL, four distinctions between accomplices were made.
1. Accessory before the fact: These persons incited, encouraged,
ordered, or incited the actual perpetrator(s) but did not
directly assist in the commission of the crime.
2. Principal in the 1st degree: The actual perpetrator(s) of the
crime- direct liability.
a. Personal commission
b. Use of an innocent instrumentality
3. Principal in the 2nd degree: Did not actively participate, but
was present, either actually or constructively.
4. Accessory after the fact: Did not an accomplice in the crime
itself, but who inhibits the detection of the crime and/or
apprehension of its perpetrators.
Most jurisdictions no longer care about the common law distinctions.
D. Common law procedural twists
1. If you were an accessory before the fact, you could only be
tried in the jurisdiction in which you committed the assisting
acts. A procedural quirk.
2. Accomplices could not be tried before the principals.
a. If the principals were convicted, your punishment was
capped at the punishment for the offense itself.
b. If the principals were not convicted, the accomplices
could not be tried (extreme application of derivative
E. Classifications used in modern jurisdictions
2. Aiders & abetters
a. Advised the principals
b. Encouraged, incited the principals
c. Any other kind of contributory acts
d. Present with the criminal intent of the principals where
you either actually assist, or the perpetrators are
aware of your presence and willingness to help.
- The same liability for the target crime is imposed on
aiders and abettors as well as the principals. The
principal that you are liable for your own acts must
yield to reality.
F. 2 dimensions in the law of accomplice liability
1. Actus reus dimension
a. In order to satisfy the actus reus dimension, you must
commit an act or omission strongly corroborative of
criminal intent and commonality of design.
b. The act or omission of assistance need not be large.
(1) Known allegiance to the perpetrator
(2) Ability and willingness to assist in the
(3) Standing ready to assist
(4) An act which is intended to assist in the
commission of the crime, no matter how small the
assistance turns out to be.
c. Pace v. State
(1) Pace, his wife, Rootes, and Pace's infant child
were riding in Pace's car. Pace pulled over and
picked up a hitchhiker. Rootes robbed the
hitchhiker at knifepoint before discharging him.
Pace made no comments and committed no acts which
could tie him to Rootes's criminal intent.
(2) The court concludes that there was insufficient
evidence for an A&A conviction; the case should
not even go to the jury. The prosecutor needs to
be able to point to an affirmative act (or
conduct or words) from which the commonality of
criminal purpose can be reasonably inferred.
(reasonable inference of common design.)
(3) Pace also had no duty of care towards the
hitchhiker, so he cannot be guilty of an
omission. (If Rootes had been beating Pace's
child and Pace did nothing, then he would have
been guilty of an omission (relational duty to
d. State v. Walden: A mother who fails to stop her
boyfriend from beating her kid is held guilty of assault
with a deadly weapon inflicting serious bodily injury.
She was under a relational duty to protect her son, and
her failure to do so was a culpable omission.
e. Murray v. Commonwealth
(1) Murray and Grace are out on the street one night
testing car doors. Grace robs a man of his wallet
while Murray was standing really close to the
victim. They both bolted after Grace secured the
(2) Mere presence at a crime is not enough to be
convicted as an A&A. But if you are present with
the same criminal intent, then presence does
become an act.
(3) Murray's presence assisted Grace in the mugging.
(a) Available to assist is he was needed.
(c) Blocking escape routes
(e) Present and shared common design (overt
f. State v. Tally
(1) Judge Tally is accused of assisting his brothers-
in-law to kill Ross, a man who had carnal
knowledge of their sister. Judge Tally staked out
the telegraph station to make sure no one tried
to send a telegram that might warn Ross of the
impending attack. The brothers-in-law had no
knowledge of Tally's help.
(2) Three questions the court addresses
(a) Did Tally commit an act or forbearance in
furtherance of a common design?
(b) If so, must it act actually assist the
principals in order for Tally to be
(c) Did the act actually assist the brothers-
(3) Tally is not an accessory before the fact because
he had no knowledge of the criminal intent prior
to the commission.
(4) The court concluded that Tally was
constructively present at the scene of the
crime because he acted as an effective
lookout by staking out the telegraph
(5) An incredibly trivial assistance is all that is
required. The court found that Tally's message to
the telegraph operator on the other end of the
link to delay delivery of the warning telegram to
Ross decreased Ross's chances of survival, if
only minutely. No but for cause is needed to
adjudge Tally's conduct to be culpable.
(Accessory liability circumvents but for cause
(6) Because of his assisting act, Tally was convicted
of [1st degree] murder.
(7) Suppose the Skeltons attempted to kill Ross but
(a) Skeltons: Attempted murder
(b) Tally: Attempted murder as an A&A
(8) Suppose the Skeltons desisted before the attempt
(a) Skeltons: Not guilty of anything
(1) At CL, since the principals were not
convicted, Tally could not be
convicted as an A&A. (Majority rule:
(2) Under the MPC, he is guilty of
attempted murder because he has the
mens rea and has committed an overt
act aimed at bringing the intended
result to pass. Fortuity is rejected
under the MPC. (Minority rule:
(c) Tally himself might have committed
attempted murder in his own right based on
an independent analysis of the elements
(solicitation, procurement, facilitating,
(9) The MPC is structured around culpability.
Culpability is what makes the MPC tick.
(a) Suppose Western Union's lines went down,
and Tally did not incite, encourage, or aid
the principals. Is he guilty as an A&A?
(1) CL: No, Tally would not be an A&A. He
would be acquitted even if he had the
(2) MPC: Yes, he would be guilty as an
A&A. He did have the requisite mens
rea, and attempt to aid is sufficient
under the MPC to obtain a conviction.
(b) Suppose the Skeltons desist before killing
(1) CL: No, Tally would not be an A&A
because the principals could not be
convicted of any crime, and A&A is
(2) MPC: Yes, Tally would be guilty of
attempted murder via A&A.
(c) Suppose Tally encourages the Skeltons to
pursue Ross and kill him, but everything is
stopped in the preparation stage. No one
took any substantial step corroborative of
criminal intent towards completion of the
(1) CL: Tally is not guilty of A&A.
(2) MPC: Tally is guilty of attempted
murder via A&A (See MPC 5.01(3))
g. Hyp: Egging on a deaf assailant. Would this be an A&A?
At CL, it would probably go to the jury because the
conduct may have demoralized the victim making her more
susceptible to harm. Under the MPC, attempting to aid is
sufficient to be convicted.
h. Hyp: Paying customer to an illegal cockfight. Is he an
A&A? YES. Paid money to the promotor. (Also, just by his
presence he assisted in the illegal endeavor; cockfights
are usually performed before an audience)
i. The actus reus dimension is a continuum: The more
confident we are that the actor intended to assist, the
more likely we are likely to find an assisting act that
lends some assistance to the principals.
2. Mens rea dimension
a. In order to be convicted as an A&A, you must
(1) Have the mens rea (specific intent) to commit an
act to assist in the perpetration of the crime,
(2) The mens rea for the target crime itself.
b. Mens rea for the target crime required: Wilson v. People
(1) After becoming convinced that his companion
Pierce, a burglar, had stolen his watch, Wilson,
son of the Dep. DA, talked Pierce into committing
a burglary with him. After helping Pierce to
break the glass of a business and helping him in,
Wilson called the police in the hopes of getting
them to catch Pierce in the act.
(2) At the trial level the judge instructed the jury
that if Wilson intended to assist in the
commission of the burglary, then he was guilty.
This effectively nullified his defense of decoy
and detection (he lacked the mens rea for the
crime itself). On appeal, the court accepted
Wilson's argument that he had to have shared in
the mens rea for the underlying crime itself in
order to be held liable as an A&A.
(3) Did he have the mens rea for the ultimate crime?
He may have depending upon which offense you
charge him with.
(a) Burglary: Breaking and entering with the
intent to commit a crime inside.
(b) Larceny: Intent to permanently
deprive an owner of his property.
(Wilson did not have this intent).
- Both burglary and larceny are specific
(c) Misdemeanor B&E: A general intent crime
(meant to break in and meant to enter)
(d) Destruction of property: Intentionally
destroying property without permission.
- With the previous two offenses, we could
get him under direct liability and avoid
the problems of A&A.
c. In reality, a series of offenses is presented to the
(1) A&A theories
(2) Direct liability theories
d. Andy/Dan hypothetical (liquor store owner tells a
customer where to find the customer's worst enemy so
that he may perpetrate an assault on the enemy. The
owner then calls the police, but they do not arrive
until the enemy has taken a good beating.) Is the store
owner guilty of an assault? The intent to assist is
clear. Since not much mens rea is required for an
assault (recklessness is sufficient under the MPC), then
he may be guilty of an assault as an A&A. If the victim
died, the store owner might be guilty of malice murder.
e. Voluntary manslaughter A&A hypothetical. (See 19-NOV-92)
f. A&Aers cannot be held more liable than the principals
(1) Homicide: The law is at least willing to heighten
liability if the A&Aer has a higher mens rea.
(2) Direct liability if the A&Aer uses the
"principal" as an innocent instrumentality.
(3) If the perpetrator has an excuse, the A&A may not
be permitted to tap into that defense.
g. Debate in the law: Must the assisting act have been done
(1) Majority rule: Intent/purpose to aid
(2) Minority rule: Knowledge of criminal intent of
- This rule troubles some, but not others.
Pro: He is out to make a buck.
Con: This makes him tread on too thin ice
to be fair. The rule could conceivably drag
in everyone trying to make a buck in the
economic system. It also opens the
possibility for dragging in persons guilty
of only ordinary negligence. The
purposeful/intent line is much more
acceptable in this regard.
People v. Beeman: Must the defendant have the mens rea
for the object crime in order to be convicted as an A&A?
(1) This case involved the robbery of the defendant's
aunt by two friends of the defendant. The
evidence indicated that he at least supplied some
information about his aunt and her house to the 2
robbers, but it was unclear if he meant to assist
or participate in their endeavor. During his
testimony, the defendant indicated that he told
his two friends that he wanted no part of the
crime and that he did not believe that they would
actually go through with it.
(2) The court holds that the defendant had to have
shared in the criminal purpose of the principals
in order to be convicted as an A&A. The CA
pattern jury instruction that knowledge of the
criminal intent is sufficient for an A&A
conviction is erroneous. Knowledge of the
criminal purpose plus intent to aid, assist, or
encourage is required for an A&A conviction.
h. An A&A can be liable for a lesser offense than are the
principals because the A&A might not have the mens rea
for the object crime, but also the intent to aid.
i. Felony-felony doctrine: a sort of CL FM rule. In a
minority of jurisdictions, the courts hold that an A&A
is liable for other crimes flowing naturally and
probably from the initial crime (foreseeable collateral
crimes), (CA and NC recognize this doctrine). In People
v. Beeman, Beeman was charged with felonious destruction
of telephone equipment because his two friends cut the
telephone lines in his aunt's house. Negligence, it
appears, is enough to obtain conviction of the A&A for
the collateral crimes, even if those crimes require a
(1) Critics are leery of this rule because we rarely
wish to punish people for ordinary negligence.
(2) Prosecutors usually try to make use of this rule
in cases involving a death where the committed
felony is not included within the FM statute.
(3) This nebulous doctrine surfaces in the case law
from time to time. (Judges hitting F7 on their
(4) The courts that really screw up in applying this
doctrine say that the A&A is guilty of the
collateral crimes even if he does not have the
mens rea for those crimes and even if the
collateral crimes require a specific intent.
Purpose to assist in criminal conduct is applied
G. Withdrawal and renunciation
- This arises when the A&A for some reason wishes to withdraw
from the criminal enterprise.
1. Minority rule: If the A&A defendant abandons the endeavor and
communicates his intentions to the other perpetrators, the
defendant gets off.
2. Majority rule: The A&A defendant must also try to neutralize
the dangers produced by the
a. A&A's acts, and
b. The perpetrators' acts
EX: Calling the police, resisting the principals, etc.
A. An attempt takes place when he takes a "substantial step strongly
corroborative of criminal intent" towards committing an offense.
1. Attempt is a specific intent offense (Purpose and many Knowing
2. Attempt is an inchoate crime (unfinished crime).
3. All completed crimes include attempts, so courts tend to allow
the attempt to be subsumed as a lesser included offense.
B. Why punish attempt?
1. Revisit Day 1: reasons for punishment of criminals. We desire
to punish attempt because we feel that those who attempt to
commit crimes have committed transgressions against society.
They have harmed society in some way, and therefore they
2. The attempter has evidenced his mens rea by this attempt. He
is blameworthy and merits punishment. He has also exhibited
his predisposition to commit the crime.
3. Attempt gives police a device they can use to intervene before
the perpetrator actually succeeds in committing the ultimate
crime. In this way, attempt is a sort of preventative
4. Before we can punish attempt, we must have some sort of
touchstone that will allow the criminal justice system to step
in and prevent the perpetrator from proceeding any further.
EX: Possessing burglary tools: provides a nice focal point for
stopping burglars before they actually commit burglaries.
Though harm does matter, dangerosity matters as well.
5. Society may feel that attempts should be punished. In this
way, attempt law may be a product of political society, much
like the FM rule.
a. No one sets out to commit an attempt. Can punishing
attempts deter attempts? (Maybe, but I believe what that
the actual deterrent value of punishing attempts comes
from deterring the actual commission of the target crime
itself. If people realize that they will be punished for
a mere attempt to commit the object crime, they might be
deterred from trying in the first place.
b. Harm does matter. Is society actually damaged if the
would be criminal is unsuccessful in his endeavor?
Proportionality of the crime and the punishment as well
as fairness also play a role.
c. Hard to fashion a doctrine to make attempt law work
correctly. Defining what is and is not an attempt can be
d. Ought to provide some room and incentive for people to
C. How much should we punish attempts?
1. At CL, all attempts were deemed misdemeanors.
2. Today, attempts can be felonies, but they are usually punished
less than the completed crime.
3. MPC: Target crime and attempts are punished the same except at
the extreme levels of punishment. Attempts to commit capital
crimes are knocked down to 1st degree felonies.
D. Attempt law has 2 dimensions: Mens rea and actus reus
1. Mens rea
a. One must have the specific intent to commit the target
crime in order to be convicted of an attempt: State v.
(1) Lyerla was charged with attempted second degree
murder after he fired his gun at a truck driven
by three girls who were playing games with him on
the road. One girl was killed (2nd degree murder:
extreme recklessness manifesting extreme
disregard for the value of human life.).
(2) Lyerla argued, and the court accepted, that in
order to be convicted of attempted murder, he had
to have had the specific intent to kill;
"attempted extreme recklessness" is effectively a
legal oxymoron. Attempted murder in this case
violates common sense. Attempt necessarily
involves an intent and effort to bring the final
result about. Since his goal was not to kill, he
cannot be convicted of the offense. [Much of
homicide law revolves around the result,
especially when the defendant lacks the specific
intent to kill.]
b. In order to be convicted of an attempt, you must have
(1) Intentionally engaged in conduct that constitutes
a substantial step towards the commission of a
(2) Specifically intended to bring about the desired
- Minority: Castro: The court bought the
prosecutor's argument that attempted extreme
reckless murder was a punishable crime.
c. Specific intent to commit the crime (purpose to commit)
(1) if the offense involves only conduct, attempt
analysis is easier (assault is a crime where
conduct is sufficient to convict.)
(2) But if offense involves an additional result, you
must specifically intend to bring about the
d. Attendant circumstances in the offense: Courts are a
little more laid back on this point.
- Suppose you attempt to have sex with a girl that
is underage, only you do not succeed. Are you
guilty of an attempt? Under the MPC, we need only
look at the mens rea, and for statutory rape you
need not intend the attendant circumstances in
order to be convicted.
e. Defense of abandonment and renunciation: If you break
off before crossing the "attempt line" (cease and desist
before taking a substantial step, then you cannot be
convicted of an attempt.
- This often requires an actual and honest second
thought to the crime itself and not merely a fear
2. Actus reus: where the bulk of the attempt case law lies.
a. Key issue: Where to draw the line between attempt and
non-attempt. Courts have used various formulas over the
years to draw the line.
b. 2 views of thought
(1) Subjectivists (quasi mens rea): Has the defendant
committed an act that sufficiently manifests his
(2) Objectivists: Draw the line clearly and
sufficiently close to the crime. Once the line is
crossed, society has incurred some harm, and the
defendant deserves to be punished accordingly.
- There is more going on in these cases than just
the tension between subjectivists and
(a) We wish to guard against convicting
innocent persons. The farther away from the
crime we draw the line the closer and
closer we come to punishing innocent
(b) We cherish our civil liberties, especially
our freedom of thought. (Proctor)
But, we do not want to draw the line too close so
as to preclude interference by law enforcement
before harm is actually wrought.
c. Tests used by courts over the years (See page 524 for a
full description of each.
(1) Physical proximity test: The attempt must be
physically proximate to the completed crime.
(2) Dangerous proximity test (Justice Holmes): The
greater the gravity and probability of the
offense and the nearer the act to the crime, the
stronger the case for an attempt designation.
(3) Indispensable element test: Has the defendant
acquired control over any indispensable element
(4) Probable desistance test: The conduct is an
attempt if in the ordinary and natural course of
events, without interruption, the crime will be
(5) Abnormal step approach: An attempt occurs
when the conduct crosses a line over which
a normal citizen would reconsider and
(6) Res ipsa loquitur: An attempt occurs when his
conduct manifests an intent to commit a crime.
d. Substantial factor test: the test adopted by the MPC and
Has the defendant taken a substantial step towards
commission of the offense strongly corroborative of
criminal intent? If so, then the defendant has committed
However, the MPC enumerates a list of steps which are
not insubstantial as a matter of law (MPC 5.01(2) pg.
(entering a building, reconnoitering the scene,
- The MPC is culpability driven: It does not
require that act be the only or definitive
indicator of culpability, but act must be
strongly corroborative of the requisite mens rea.
e. Where exactly to draw the line
(1) CL distinction between preparations and attempts:
People v. Murray
(a) Murray tries to marry his niece. In
furtherance of his goal, he sends a friend
to get the magistrate. However, he is
stopped before the ceremony commences.
(b) The court distinguishes between
preparations and attempts. (Has he taken
the last step in the marriage act?)
"Preparation consists in devising or
arranging the means or measures necessary
for the commission of the offense; the
attempt is the direct movement towards the
commission after the preparations are
(c) Drawing the line closely to the completed
crime gives the Proctors of the world every
last chance to quit (an old fashioned
(d) Murray probably would have been guilty of
attempted incest under the MPC (he had the
mens rea and he did take substantial steps
towards the completion of the crime
strongly corroborative of criminal
(2) People v. Rizzo: The defendants "attempted" a
payroll robbery, but they could not locate their
intended victim. Though they are dripping with
mens rea, they have committed no punishable
attempt. The court applies the dangerous
proximity test. [Under the MPC, they would be
(3) US v. Jackson: Drawing the line further back.
(Substantial factor test: reconnoitering the bank
in preparation for a bank robbery and possession
of paraphenelia for the commission of the crime/2
of three co-conspirators nailed though only one
of them actually conducted the surveillance.)
(4) Pushing the line too far out: McQuirter v. State:
McQuirter was convicted of attempted attempted
(5) Expect confusion among jurisdictions on this
issue, but focus on the substantial step test.
f. Hyp: Trying to kill a man who is already dead. Attempted
(1) Under the MPC, he would be guilty (if the
attendant circumstances were as he believed
them, then he would be liable. Accordingly,
he is liable for attempted murder even
though the guy is already dead.)
(2) Factual vs. Legal impossibility: Mopering
(throwing a steak in the garbage can is not
a crime no matter how wrong you think it
- Necessity is an affirmative defense to a crime. The defendant
raising the defense argues that he committed the crime in order to
avoid an objectively greater evil.
A. CL necessity defense test
1. Natural emergency
2. H&R belief that the act is necessary to avoid imminent harm.
3. The defendant is not at fault in some way
4. Objectively, the choice had to have been correct
5. NONE of this applies in cases of homicide.
Application- maritime cannibalism: Dudley & Stephens
a. Dudley, Stevens, Brooks, and a cabin boy were sailing a
yacht to Australia when it capsized near the Cape of
Good Hope. After almost 2 weeks at sea on a lifeboat
with scant provisions, Dudley and Stephens decided to
kill the cabin boy, who was sickly and who had no family
of his own to care for, and eat him. They were rescued
a few days later, and it was clear none of them would
have survived had they not killed and eaten the cabin
b. D&S were charged with 1st degree murder (clearly P&D).
The jury returned a special verdict (penned by the
judge), but returned no finding of guilt. They passed
the buck back to the judge/ The judge adjourns, but the
prosecutor moves for a 5 judge panel.
(1) Should they have drawn lots? (recall the case
where an Italian boy for some reason kept drawing
the short straw)
(2) Social utility (objective value of persons to
society) vs. random choice
d. The court holds that we must sometimes lay down rules we
sometimes cannot meet ourselves. The murder law is one
of these rules.
e. Are D&S being used for some ulterior purpose? The court
seems to focus on denunciation: Society abhors murder
whenever and wherever it is committed. The best way for
society to make its abhorrence clear is to punish D&S
despite the fact that faced with the same situation we
might have acted similarly.
f. The Crown ultimately commuted their death sentences to
6 months in prison.
B. MPC: a broader definition of necessity
1. Seeking to avoid a greater evil objectively
2. No other law that provides exceptions for the situation.
3. No legislative purpose to exclude the justification
4. Defendant did not negligently or recklessly bring about the
situation that gave rise to the choice of evils or negligently
or recklessly appraised the necessity of the act.
- If the defendant had an honest belief that the harm he was
seeking to avoid was greater than the harm prohibited by law,
you have the beginnings of a necessity defense.
a. Objectively, the act had to have been correct
b. No legislative preclusions
c. Reasonable belief NOT REQUIRED, but if the defendant is
reckless or negligent in bringing about the situation or
in appraising the necessity of the conduct, then he can
be charged with a crime with a mens rea requirement of
recklessness or negligence. He cannot be convicted of a
purposeful or knowing crime.
- The MPC passes on
a. Who decides, and
b. By what criteria
- Under the MPC, D&S probably would have met the necessity
a. Objectively correct decision (3 lives are worth more
b. Reasonable belief
C. Justification vs. Excuse
1. Justification: Unlawful conduct which we applaud and do not
wish to punish or condemn. Criminal laws are written with the
assumption that the emergency situation is not present.
- Suppose a citizen sees a fire heading towards town burns
down a farm as a firebreak in order to check the
progress of the fire. Though he is a prima facie
arsonist, we would deem his actions to be justified, and
thus, would allow him a necessity defense. (The "grand
schemer" scenarios tend to alter this determination.)
2. Excuse: Unlawful conduct of which we disapprove, but we
understand the situation and excuse the defendant. (Insanity,
D. Proportionality: The harm you seek to avoid must be no less than the
harm that is caused. Usually (and at CL) the harm to be avoided must
be greater than the harm inflicted by the questioned act. Ties are
usually resolved against the defendant.
E. Safety seat case: A couple was cited for failing to keep their child
in a safety seat while the car was in motion. Their defense was the
baby was hungry, so the mother had to feed it. The court bought the
defendants' argument and acquitted them. This is a preposterous
decision- the evil that could be caused is certainly greater than
the evil avoided (dead child vs. hungry child). Also, why didn't the
husband just stop the car, let the mother feed her baby, and then
proceed down the road again? (Negligent appraisal of the necessity.)
- Policy question: Do we want people to second guess the
legislature by allowing them to make their own judgments about
the balance of evils? Judges are usually unwilling to allow
juries to deal with social questions that have already been
before the legislature.
F. Eddie Hatcher case
1. The defense lawyers managed to get evidence of necessity
before the jury, but they were barred from invoking a
2. During their closing arguments, they argued that in order to
be convicted of the crime, the defendants had to have had mens
rea, and moreover, in order to have mens rea they had to have
had some bad motive or evil purpose.
Hatcher was acquitted.
G. Necessity defenses are rare, and courts are not especially keen on
allowing necessity or duress defenses to intentional homicides.
A. Duress is an affirmative defense to a crime where the defendant
argues that though he committed the crime, he did so under illegal
coercion or threat and therefore he should be excused.
B. At CL, duress can be an excuse (but not for murder).
The defendant must:
1. Reasonably perceive a threat
2. Reasonably believe that it will come to pass unless he
cooperated and commits the unlawful act, and
3. He is not at fault.
C. Most jurisdictions have required that the threat must be of death or
serious bodily harm in order for the defendant to qualify for the
duress defense. Some jurisdiction have allowed a threat of death or
serious bodily harm to another, in particular, a close relative, to
D. Most jurisdictions hold that duress cannot be a defense to murder.
However, the MPC might allow the defense of duress to a murder
charge under some circumstances. (See MPC 2.09) (The Lynch case
left open the question of duress and pulling the trigger.)
IX. Defensive force
- Formalized use of necessity
- Applies to crimes against the person/unlawful force element
A. Self-defense: a privilege to commit what otherwise would be an
assault or murder in order to save oneself against a similar harm.
1. Non-deadly force: As a general rule, you are privileged to use
non-deadly force against an unlawful use of force so long as
it appears reasonably necessary to prevent immediate
infliction of harm to yourself.
2. Deadly force: As a general rule, you are privileged to use
deadly force (force capable of causing death or serious bodily
injury) so long as it is appears reasonably necessary to
defend yourself against an unlawful use of deadly force that
may cause death or serious bodily injury, and there is no
requirement to retreat. ("necessary and proportionate")
3. The law in this area is extremely hazy. What constitutes self
defense varies from jurisdiction to jurisdiction. Formulations
of the defense differ as well.
4. The battered wife syndrome: People v. Leidholm
a. In this case, Leidholm and her husband went to a gun
club party and came home drunk. They got into an
argument which escalated into a beating upon the
defendant by her husband. She attempted to call the
police, but her husband stopped her by pulling the
telephone out of the wall. After he fell asleep, she
stole to the kitchen, procured a kitchen knife, and
stabbed her husband to death.
b. The prosecutor could easily get the case to the jury for
Murder 1: she clearly intended to kill and also P&Ded.
Though she was intoxicated, she evidently was not so
intoxicated that she could not form the specific intent
to kill. The problem with getting a voluntary
manslaughter conviction is that she had time to cool
c. As a defense to a charge of 1st degree murder, she plead
self-defense and sought to use the expert testimony
concerning the battered wife syndrome to augment her
defense. When this defense is invoked, the defendant
puts an expert witness on the stand to educate the jury
on the syndrome and helps the jury to understand the
defendant's situation. Battered women experience three
stages that culminates with a feeling of "learned
helplessness." The defense will then try to get a BWS
instruction. However, courts are reluctant to give a BWS
instruction when they feel the self-defense instruction
d. The judge in this case gave a strictly objective self-
defense instruction which allowed the jury to take into
account only the external circumstances (similarly
situated), and that effectively destroyed her BWS
defense. The ND S.Ct. reversed, holding that the
objective standard of reasonableness is too narrow. It
opts for the subjective standard of reasonableness which
does take into account the subjective motives and
mindset of the defendant. But in denying the BWS
instruction, the court argues that the subjective
standard of reasonableness instruction requires the jury
to consider the BWS evidence presented at trial. If the
jury finds she acted in self-defense, she walks. [The
trend in this country is towards a subjective evaluation
e. NC has been cold to the use of self-defense in BWS
cases. NC courts hold that as a matter of law, if the
husband is sleeping, no further harm can be imminent.
5. Self-defense straddles justification and excuse
a. Justification SD: Honestly and correctly believed that
the use of force was necessary to prevent imminent
b. Excuse SD: Honest, reasonable, but incorrect belief that
force was necessary to prevent imminent unlawful harm.
- Suppose you are attacked by a mugger who you
mistakenly but reasonable conclude is armed with
a deadly weapon. You shoot him dead. Why should
we allow the defense to lie here?
(1) We do not think the defendant should put
himself at further risk by trying to make a
correct determination. It would be
impractical as well as unsafe.
(2) Also, the person who acts in self-defense
is less culpable than the perpetrator of
6. Rationales for SD as an affirmative defense.
a. We cannot deter people from acting in defense of their
own lives and safety. So, punishment is not appropriate.
b. Forfeiture theory: By attacking another with deadly
force, the perpetrator forfeits his own right to life
(Cf. John Locke.) By focusing on the unlawfulness of the
force necessitating self defense, the perpetrator's life
can be devalued.
c. Retribution against the aggressor for his aggressive
7. Where the law draws the line: Unreasonable perceptions and
reactions (Imperfect self-defense).
a. Under the MPC, the defendant will be guilty of reckless
or negligent homicide.
(1) In some jurisdictions, imperfect SD mitigates the
offense down to voluntary manslaughter.
(2) In other jurisdictions, an unreasonable mistaken
perception or reaction that deadly force is
necessary to repel the perceived attack nullifies
the defense, and the actor is open to a charge of
c. In NC, the defense is voided if the force used was
d. Aggressors and self defense: In general, aggressors
cannot raise perfect self defense as a defense unless
they have withdrawn and renounces their previous assault
whereby they may raise the defense at a later time.
(1) Defendant commits a non-deadly assault upon
victim. Victim responds with deadly force, and
defendant responds by killing victim
(a) CL: Defendant is guilty of voluntary
(b) MPC: Defendant retains perfect self
defense, but he is still open to a charge
(2) Defendant assaults victim with a deadly weapon.
Victim responds by trying to kill defendant with
a deadly weapon, but the defendant then kills the
victim to keep victim from killing him.
Result: Defendant is guilty of malice murder; SD
is not available.
(3) Defendant attacks victim, but victim defends
himself with deadly force. Defendant then
attempts to withdraw and communicates his intent
to the victim. Victim continues to pursue, and
after defendant is cornered, defendant kills
Result: Defendant has perfect SD defense, though
he probably would still be liable for the first
8. Requirement to retreat
a. Where the requirement exists, you are not privileged to
use deadly force to repel a deadly attack if you have an
avenue of safe retreat.
(1) The requirement only applies to use of deadly
force to repel an attack. There is no requirement
to retreat before using non-deadly force.
(2) There is no duty to retreat unless you know you
can do so safely (a subjective evaluation).
(3) Castle/workplace exception: you are not required
to retreat from your home or place of work if you
are attacked there, unless you know the assailant
c. Majority rule: Retreat not required before using deadly
force. You may stand your ground. (Western states are
noted for their non-adoption of the retreat
Minority rule & MPC: Retreat is required before using
deadly force subject to the above listed exceptions.
9. At early CL, peace officers did not exist. Citizens bore the
primary responsibility for law enforcement. Though we have
transferred most law enforcement functions to law enforcement
officers, citizens still retain limited powers of arrest and
10. Defense of others
a. No longer limited to a particular class of persons
related to you (spouse, children, servants). You are
privileged to use force in defense of third parties in
those situations in which you would be privileged to use
force to defend yourself.
b. Majority rule- Alter ego theory: You may not raise this
defense if you are mistaken. You act at your own peril
if the person you sought to defend was in fact being
lawfully arrested or detained. (You stand in the shoes
of the party you are attempting to assist, and if he was
not privileged to use defensive force, neither are you.)
c. Minority rule and MPC: Reasonable mistakes permitted.
11. Resisting unlawful arrest
a. Majority and MPC: You may not use force to defend
yourself against an unlawful arrest even if you know the
arrest is unlawful
*** Problem with Necessity, Duress, and Self Defense: The black letter law
seeks to confine the doctrines in ways that policy may not require. It
makes much more sense to revisit the balance of evils, social utility,
punishment, etc. There may be controversial cases where an excuse may be
warranted but an element of the defense is missing (ie. battered wife
syndrome where the element of imminence of death or severe bodily harm is
usually missing, especially if the husband is sleeping at the time of the