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I. Culpability


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Regina v. Dudley and Stephens: determinate: were lost at sea on a raft and after several days they killed and ate a young boy on the raft. The question here is if the offense was murder and if so how severely should the ’s be punished (at the time willful murder received a mandatory death sentence, the legislature fully controlled sentencing with no discretion left for the judge). They were convicted because the judge said the innocent (the boy) must live, even if you have to sacrifice yourself. Extreme necessity does not justify breaking the law. Later the Crown commuted the sentence to 6 months.


US v. Bergman: indeterminate:  (64 year old rabbi) pled guilty to violating NY state law (filing fraudulent Medicaid claims) in return for a federal sentence covering the state crimes as well. The judge had almost complete discretion (this is before Federal Sentencing Guidelines). This was individualized sentencing: judge was not looking at a certain rendition of a certain crime, but rather a unique person and his unique crime – judge was trying to address the whole person but this raises the problem of unjust disparity. He got four months in the end.

  • The Court doesn’t want to send the old man to prison for rehab (we only do rehab while the  is already in prison)

  • Don’t need to isolate him from society, he poses no threat

  • There is no specific deterrence here, he probably won’t ever do it again

  • Prison would serve only as a general deterrent (don’t wan to depreciate the seriousness of the crime, punishment serves a community condemnification, thus reaffirming social norms)

  • But it would be cruel to be too harsh with an old man

Sentencing: besides the enormous power of the police to decide whether or not to arrest, there are 4 institutions that have power over sentencing:

  1. Legislature: sets the range, very high maximum and little limits on the minimum (most legislatures delegate their powers to another institution).

  2. Prosecutor: has the legal authority to determine what the accused is charged with, also controls plea bargaining (esp. reduction of charges)

  3. Judge: selects the sentence from the wide range made available by the legislature (within the range of legal sanctions he cannot be appealed or reviewed, however there is no double jeopardy ban to appeals for sentencing). Even when the legislature sets a mandatory sentence, he can pick a different offense.

  4. Parole Board: can modify judicial sentences, usually legislation allows release from prison on parole after a portion of the judge’s sentence is served. Parole Boards have few guidelines they must follow.

a regime of substantially limitless discretion is arbitrary, capricious, and antithetical to the rule of law

Federal Sentencing Guidelines: in 1984 the liberals were unhappy with the disparity in sentencing and the conservatives were unhappy with lenient sentencing. These aren’t guidelines, if a judge doesn’t follow them and he doesn’t have a good reason, he’ll be reversed. They are laws. This drastically reduced the range of judges’ discretion. The top end couldn’t be 25 % or 6 months more (which ever is greater) than the bottom. Parole was abolished on the federal level, making sentencing certain.



  • Sentences are imposed based on conduct (how the robbery was committed), some of this may not have been seen by the jury. Even relevant offenses can come into play (also stuff jury didn’t see).

  • Sentencing judge uses a preponderance of the evidence (thus someone acquitted of drug trafficking, but convicted of a gun offense could still have the judge take the drug offense into account as part of the sentence).

  • The system rejects a charge offense system (with grading of offenses), because this would give the prosecutor all the power (i.e. they decide what offense to charge). However, prosecutors can still manipulate by only charging one of many crimes (count stacking). The federal district judge is supposed to police the plea system and stop prosecutorial manipulation.

  • The sentencing guidelines take power from the judges and really force it back onto the investigators (i.e. DEA sells drugs to people and sometimes they influence criminals to buy more than they intended and thus get more time).

  • Departures:

  1. The judge only looks at prior convictions and based on these can depart upward to take into account other criminal history. This reflects a judge’s old ability to take into account the entire criminal history.

  2. If a criminal cooperated with the government (empowered prosecutors), one this motion is made the guidelines go away and judge has free discretion.

  3. If there are circumstances not in the guidelines, judges can depart, even downward (as long as it’s not forbidden and the departure is not based on sex, religion, race, or soci-economic status).

III. Legality: “no crime without law, no punishment without law.” Three elements:



  1. Criminal statutes should be understandable to reasonable law-abiding people

  2. Criminal statutes should be crafted so as not to delegate basic policy matters to police, judges, and juries for resolution on an ad hoc and subjective basis

  3. Judicial interpretation of ambiguous statues should be biased in favor of the accused (however, the MPC does not recognize the lenity principle that says when a criminal statute is subject to conflicting reasonable interpretations, the statute should be interpreted strictly against the government. The MPC says the statutes should be construed according to their fair import and that ambiguities be resolved in a matter that furthers the general purposes of the Code and the special provisions of the particular provision).

In the real world it’s hard to know how much specificity we’ll require or how much vagueness we’ll allow. There’s a need to keep fairness but allow police to exercise peace keeping. The legislature can make anything a crime unless the prohibition would violate a constitutional right. Courts are much slower to hold that an ordinary criminal statute – one that does not touch on fundamental constitutional rights – is unconstitutionally vague (i.e. negligence is not easily definable, but statutes that use it are not automatically vague).

Shaw v. Directors of Public Prosecutions: (in the UK) Prostitutes couldn’t solicit on the street so  published a magazine advertising them (nude). The court held that this was a conspiracy to corrupt public morals. This was a bad holding, as there was really no such offense. This wouldn’t have happened in the US.

Nash v. US: Nash tried to argue the Sherman Anti-trust Act was vague because a jury could have a different opinion than the actor as to what constitutes an undue obstruction of trade. The court ruled that before acting a  must guess if a jury will think one is acting legally (in this case exercising reasonable care).

Papchristou v. City of Jacksonville: here there was a statue (unlike Shaw). But it was vague. This statute gave police undue discretion (racism becomes possible). The four persons where charged with “prowling by auto,” really they were busted because their were two white women with two black men. The Court said the statute was void-for-vagueness (didn’t give fair notice and legislatures can’t set up a law that will catch all possible offenders and then let the courts decide who will rightfully be detained) and that it encouraged arbitrary and erratic arrests and convictions. The MPC would instead use §250.6 (loitering or prowling: designed only to reach alarming loitering, situations which would not be covered by the law of attempt) but courts remain divided on its constitutionality.

Implied consent laws: i.e. for the privilege of driving in a state, you agree ahead of time to a test (of drunkenness). If you refuse there’s no criminal sanction, but they can take away your license.


IV. Causation: this is less developed in criminal law than it is in tort. There is a “but-for” test for direct or actual cause: But for ’s voluntary acts would the social harm have occurred when it did? If not but for ’s act, then is an actual cause of the result.

Causation, as well as mens rea, must both be proven.



  • Causation without mens rea: has a minor argument with her husband, . , upset about the argument, leaves the house and walks across the street. As he does he is struck and killed by a car driven by X. But for having the argument with , would not have crossed the street at that moment and would not have been struck by X. However, was not the sole cause (X’s conduct was another cause) and more importantly did not have a culpable state of mind (mens rea) regarding ’ death.

  • Mens rea without causation: 1, with the intent to kill , shoots , barely nicking him. At the same moment, 2 independently and accidentally, shoots in the heart. dies instantly, 1 intended to kill , while 2 did not. Nonetheless, 2’s conduct was the sole cause of ’s death: but for 2 accidentally firing the gun, would not have died when he did.1 conduct was ineffectual. As a result, 1 should not be convicted of ’s death.

Most criminal law is defined by action and conduct and not casual effect. In fact, in criminal law you can even be held responsible if harm doesn’t occur (some writers argue results shouldn’t matter, that they are just part of moral luck).

Intended-consequences doctrine: people can be held culpable for consequences they intend even if they result in ways they neither intended nor foresaw. with the intent to kill , her child, furnished poison to X, a home nurse, falsely informing X that the substance was medicine to be given to . X did not believe that needed the “medicine,” so she did not administer it. Instead. She placed the substance on a mantel where some time later C, a young child, discovered it and gave it to , killing . was prosecuted for murder ( intended ’s death, he voluntary act of providing poison to X was a but-for cause of the death, despite intervening causes).



We cast the causation net very widely in criminal law: “but-for” test is widest (narrow it some with proximate cause and some other qualifiers). In the end everything depends on how the causation question is put to the fact finder:

  • do we mean necessary and sufficient causes (couldn’t have happened without you and you are wholly responsible)?

  • Do we mean the primary cause? Or contributing cause?

  • Could also look at morals to determine cause

  • Must ask should you be responsible only for intentional harms or unintentional as well (inadvertent)

Human actions aren’t foreseeable like natural events; a human act is an intervening event that breaks the chain of causation. But only voluntary actions (because they aren’t foreseeable as they are the result of another’s state of mind) are outside the laws of causation. Causation does apply to involuntary acts, it also applies to acts taken without full knowledge of circumstances or duress or excitement.

Proximate cause: MPC §2.03(2)(b) and (3)(b) deal with situations in which the actual result of the ’s conduct diverges from that which was designed, contemplated, or (in the case of a crime of recklessness or negligence) risked. The question under the Code is not whether in light of the divergences the was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability – purpose, knowledge, recklessness, or negligence – required by the definition of the offense (result can’t be to remote or accidental).



People v. Acosta: Question is: was the accident foreseeable and was it caused by the ?  led police on a 48-mile chase, during it two police helicopters collided and three died.  claims the collision wasn’t foreseeable (had never happened before), he got of on the malice part of the statute (to be reckless he would have had to seen risks and acted in the teeth of them, he didn’t know of the helicopters).

People v. Arzon:  is charged with two counts of 2nd degree murder: tract 2 (recklessly engaged in conduct which created a grave risk of death to another) and tract 3 (felony-murder). Should have foreseen is a negligence standard.  says for murder it should be that he did foresee and acted on the risk (this would be a recklessness standard). However, the  knew for a fact that firefighters would be present (thus he should have foreseen) and was convicted.

People v. Warner Lambert:  corporation and several of its officers were indicted fro 2nd degree manslaughter and criminally negligent homicide for an explosion at a factory (after they had been warned by their insurance carrier that one was possible), They got off because the Court found their actions were not a sufficient direct cause of the ensuing death (the exact cause of the explosion could not be pinpointed). The Court said the  must foresee the specific triggering cause of the harm (i.e. the exact spark) to be culpable. This actually probably should have gone forward, appears to be a bad holding.

Twightlight Zone: the Movie: here the Court couldn’t tell exactly what caused the helicopter to crash but they did hold the  liable (unlike Warner).

People v. Campbell:  charged with murder for providing a gun to victim who then killed himself after encouragement from ..

  • argues the caused the death under MPC 2.03(1)(a): “but for” gun that gave the deceased would still be alive. MPC 2.03(2) wanted victim to die, he acted purposefully, he knew what the actual result would be (was with in his purpose and contemplation.

  • MPC 210.5 treats assisting suicide as different from causing on which involves force, duress, or deception.


1. Omissions: under the MPC, a person is not guilty of any offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable. The law should see to it that we do not do harm, but not see to it that, in the absence of a specific statutory duty, we do things to prevent harm. Part of the reason not to hold people responsible for omissions is that it is far more difficult to ascertain mens rea and causation in an act of omission than in one where the acted.

Liability permitted on an omission is allowed:



  1. if the law defining the offense calls for it, or

  2. if the duty to act is otherwise imposed by law (includes duties under civil law, such as torts or contract law).

Duty comes from: statutory duty or from common law duty: special status relationship (usually founded on the dependence of one party on the other, or on their interdependence – parents to their minor children, married couples to one another, and masters to servants), or contractual obligation (implied or express contract, for example someone who breaches a contract to house, feed, and provide medical care to an infirm stranger, or to care for one’s mentally and physically disabled parent).

Medical “Omissions”: Barber v. Superior Court: Patient, , is in an irreversible coma, kept alive by a respirator. ’s doctor, , concludes that future medical treatment would be useless, so he turns off the respirator, aware the result will be to cause ’s imminent death, which occurs. Common-law would consider this a voluntary act and thus a murder (murder because neither ’s brain nor heart had stopped). However, even if it is considered an omission (failure to provide medical care), a doctor has a contractual duty to provide such care and could be held liable for omission of this duty. This court ruled that a doctor has no duty to continue treatment once it has been proved to be ineffective.



  • Other courts have said that a physician owes a duty to provide “ordinary,” but not “extraordinary,” care (extraordinary care is not clearly definable). If keeping the patient on a respirator is considered “extraordinary,” a doctor does not violate his duty of care by stopping treatment.

Omissions as part of causation: an omission will rarely, if ever, serve as a superseding intervening cause. will not be absolved from liability, even if the intervening actor (the actor doing an omission) has a duty to act and does not. A parents failure to stop another person from beating the parent’s child, will not absolve the attacker for the ensuing homicide, although the parent may also be responsible for the death on the basis of omission principles.

Commonwealth v. Cardwell:  mother failed to protect her child for four years from the child’s stepfather’s sexual abuse even after she knew about it.  admits that she had a duty but says she was constrained in her actions because of fear of her husband.

  • To what extent should a mother be forced to risk her own life in order to avoid criminal liability for injuries inflicted intentionally by another (her spouse or boyfriend) on the child? The Courts presume that a woman’s obligation to her child always takes precedence over her own interest in independence and physical safety. Judges assume that a woman’s maternal instinct to protect her children from harm overcomes any barriers to escape.

Pope v. State: Pope was convicted at trial of child abuse and concealment of a felony (murder of the child by its mother). The common-law offense of misprision of a felony is to passively conceal the existence of a felony (as opposed to obstruction of justice which is active). This offense is not a crime in America (although some states have recently adopted it as one punishable be fine or even jail time). The conviction was overturned because Pope had no legal duty to the child. Could have been accused of negligent homicide under MPC 210.4 and 2.03 (negligence). She could rightfully intervene in the mother’s custody under MPC 212.4 (interference with custody). This case does not reconcile with later rulings.

People v. Oliver: met a drunk at a bar and took him to her house, where she provided him with a spoon at his request that he used to inject heroin. He passed out and she left, she later told her daughter to put him outside. says she’s not the cause and that she had no legal duty. used the Restatement of Torts to show a duty of care. It defines the duty, but it isn’t law, does this meat legality? It’s not written or generally known.. Under MPC it looks like manslaughter (MPC 210.3) based on recklessness (MPC 2.03(2)(c) or negligent homicide (MPC 210.4).

Regina v. Stone and Dobinson: two ’s living as a couple took in Stone’s 61 year old sister and charged her rent. Sister developed anorexia and  tried to find a doctor but failed and took no further steps. Dobinson washed the deceased as well. The Court ruled there was no duty to any other relatives other than a minor child or spouse. Better argument for the  is that you have a duty to any lodger (deceased was paying rent).
2. Attempts: These are actions after the formation of mens rea but short of the attainment of the criminal goal. They are imperfect or incomplete.

  1. inchoate attempts: the beginning of a crime (preparatory). Incomplete when the actor does some of the acts necessary to achieve the criminal goal, but he desists or is prevented from continuing (i.e. police arrive before completion). When does a budding crime get to the level of an attempt?

a. MPC 5.01(1)(c): used here, but in conjunction with §(2) which talks about substantial step

  1. failed attempts: these are different, person did all they intended but failed. Attempt is complete but imperfect: the actor performs all of the acts he set out to do, but fails to attain his criminal goal.

      1. MPC 5.01(1)(a): used when the target offense of the completed attempt is a conduct crime (e.g. driving an automobile under the influence of alcohol)

      2. MPC 5.01(1)(b): applies to result offenses (e.g. murder): can be guilty if actor believes the offense will occur, even if it was not his conscious object to cause it ( plants a bomb on a plane to kill her husband but it does not go off, she can be guilty for attempted murder of other passengers if she believed they would die as well).

  • In every case where an attempt is charged, proof of its actual commission establishes attempt.

  • If he is charged and convicted of the substantive offense, the criminal attempt merges with the substantive crime; the lesser offense of attempt is absorbed by the greater offense.

MPC 5.01: the approach to attempts is subjectivist throughout. The provisions are drafted so the focus of attention is the actor’s disposition. Intent of actor is what matters unless intent is “inherently unlikely to cause a crime” (attempted murder with a voodoo doll, isn’t a crime). MPC grades an inchoate crime at the same level as the completed offense (same mens rea).

  • An attempt occurs when (1) a person, with the intent to commit an offense (purpose to commit the substantive offense), (2) performs any act that constitutes a substantial step toward the commission of that offense.
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