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Purposes of Criminal Law

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Purposes of Criminal Law:

  • Deterrence, Incapacitation, Rehabilitation, Retribution

Presentment and Indictment:

  • 5th Amendment requires presentment/indictment by the grand jury b/f someone can be held to answer (brought to trial) for capital / infamous crime

    • Indictment = prosecutor asks grand jury to formally charge an accused w/ something

    • Presentment = prosecutor asks grand jury for an indictment, and of their own volition they come up with another charge

    • Federal requirement ONLY (unless state constitutions so provide)

  • This requirement applies when the possible punishment is capital or infamous, not just the actual punishment. Moreland

    • Hard labor is an infamous punishment

  • Why?

    • Don’t subject person to strain of trial, stigma of accusation w/o this protection

    • Don’t know, @ beginning of trial, what sentence will be – want procedure to apply to beginning in case that sentence is imposed (not allowing prosecutor to gamble)

  • Definition of Felony:

    • Federal: any crime for which possible punishment is death or >1 yr in prison

    • For state statutes: matter of interpretation; look at the purpose of the statute using “felony.” Melton

      • Some states might go by actual punishment

      • Especially important where rights (like right to vote) @ stake

Standard for instructions on lesser crimes:

  • When there is any evidence that would support a claim that D committed a lesser crime, you have to give that jury instruction – Watkins


  • The killing of one person by another person (suicide doesn’t count)

  • Not a crime, in and of itself, but is a necessary condition for the crimes of murder, manslaughter, and negligent homicide

  • Murder & manslaughter are only homicides @ common law

  • MPC encompasses murder, manslaughter, & negligent homicide

  • Under MPC, general mens rea for criminal homicide (not an offense) is any of the 4 adverbs

Causation requirement for homicide:

  • If an action does not change or alter the “natural progression” of V’s condition, after the injuring act, then

    • The injuring act caused death

    • The later action was not an “intervening cause” and did not cause death

  • D must proximately cause V’s death

  • Removal of life support does not break the chain of causation (less important holding, when the brain death holding is factored in) – Arizona v. Fierro

Who is a person, for the purposes of homicide?

Beginning of life

  • People v. Guthrie – a fetus is not a person for the purposes of homicide, unless the legislature specifically says otherwise in statute

    • Court agrees that fetus should be treated like a person, and changes the definitions in wrongful death suits in tort; but, due to the difference btw tort & crim (different purposes, different punishments, construction deferential to accused) court doesn’t change the law

  • MPC – Fetus is not a person, for the purposes of homicide

Life’s End

  • Arizona v. Fierro – two ways to establish when death has occurred:

    • Brain death

    • Old common law way: cessation of breathing and heartbeat (pulse)

  • Today, most jurisdictions use brain death as definition for when death has happened

    • Some do not, and have not adopted Uniform Brain Death Act

    • Some only use brain death

  • Time limit: the “year and a day rule”

    • Death must occur w/in this time of original act, or can’t be prosecuted, however death applies

    • No longer applies in most jurisdictions, but CA has “3 years and a day” rule

Corpus delicti requirement:

  • Corpus deliciti = death + criminal agency of another

  • For any homicide, prosecutor must prove CD + criminal agency of the particular defendant – ONLY APPLIES TO HOMICIDE

  • Prosecutor must prove CD independently of D’s statements/confessions

    • Death can be proved by circumstantial evidence; the body, an autopsy, or medical conclusions aren’t necessary. Warmke

    • Evidence only has to be such that a reasonable jury could find another’s (someone’s) criminal agency; need not conclusively prove it

    • Only applies to out-of-court statements; in court statements are acceptable to prove either element of the CD

      • In court, you have the threat of perjury to protect against lying, plus don’t have the risks of intimidation/coercion/duress by police

      • When you have in-court testimony, “criminal agency of another” and “criminal agency of D” can merge – can prove the first by the 2nd. Warmke

    • So, can rely exclusively on confession to establish D’s identity as the criminal

  • Dispute is often as to the sufficiency of evidence to establish the CD, and not to the rule itself. So, arguments are very fact-specific

  • Confession still useful to the prosecution, b/c you still need to establish the identity of the criminal agent

Downey v. People – Evidence sufficient to establish CD without recourse to confession when: CoD determined to be strangulation by pressure to the throat (most compelling evidence); position of body makes it look like it was arranged, inconsistent w/ accidental death; scalp wound, pressure applied to wrists and throat
Hicks v. Sheriff, Clark County – Evidence not sufficient to establish CD, w/o confession, when: dead body found in desert, partly exposed; body was identified (military tags + sth else); D seen w/ deceased shortly before death; D driving deceased’s car after death
Difference btw cases: sufficiency of evidence as to criminal agency of another. There is evidence tending to show both death & that, if there’s criminal agency at all, it’s D’s.
Warmke v. Commonwealth

  • Evidence that was sufficient to establish death:

    • In-court testimony that baby was dropped in the river

    • Otherwise unexplained disappearance (alone not OK)

    • Evidence of baby’s hat, found at riverside

    • Unlikelihood that baby could survive fall to river, submersion

    • Even if baby survived, it would have been found

  • Evidence to establish criminal agency:

    • Knows that she dropped the baby (in-court testimony

    • Hung onto coat, while baby fell

    • Brought back the coat w/o mentioning baby

    • Didn’t go where she was supposed to

    • Didn’t report the “dropping”

The Homicide Crimes


  • CL definition: homicide, with malice aforethought

    • Malice does not have the common, non-legal meaning; doesn’t mean “evil,” “ill-willed,” or “angry”

    • “Aforethought” does not mean “premeditation” (although that can be important)

    • Premeditation is not essential to murder in general

  • Ways of establishing malice aforethought:

    • Intent to kill, not J/E/M (CL) – Errington

    • Intent to do serious bodily harm, not J/E/M (CL) – Errington

    • Or a “depraved heart,” not J/E/M

      • Look to MPC articulation, defines it pretty well

      • Depraved heart = “intentional doing of a wrongful act, from which death may result” (Banks v. State, the train-shooting case) – probably don’t mean that literally – too broad

      • Must be conscious disregard for peril, or probable peril, such that one kills with “wanton and reckless conduct” or with “wicked disregard” for consequences; complete disregard for social duty (McLaughlin)

      • Car accidents don’t sustain this “depraved heart” theory, even though a person may have been violating a social duty while speeding or driving drunk (McLaughlin)

      • Need be no motive or animosity towards people killed; “depraved heart” can be toward a group. Banks

      • Need the J/E/M qualifier – depraved heart could be excused or mitigated, even though it’s hard to see how it could be justified

  • Felony Murder Rule

    • Death caused “in furtherance of the design to commit a felony” is murder (Hokenson)

      • Look at the actor’s design, purpose

      • Problems arise when you start asking if the felon is guilty for the cop shooting someone; conduct isn’t characterized as the cop’s shooting, but as the felon’s original act that got the ball rolling

      • So, it essentially devolves into proximate cause

    • CA felony murder rule: guilty of “a homicide that occurs during the perpetration of a felony,” which requires a continuous transaction

      • For this one, proximate cause type analysis: were there many intervening causes, how foreseeable were they, etc.

    • Don’t really ever lead to different results, but both need to be analyzed

      • Might be different results where co-felon dies; courts hesitate to hold one co-felon responsible for the other’s death

    • Not an “intervening cause” if a police officer tries to diffuse the situation & someone dies (Hokenson)

    • CA: the felony must in itself be inherently dangerous to human life, in order for the rule to apply. It is not enough that the particular events of the felony make it dangerous. Grand theft is not inherently dangerous (Phillips)

    • Also, must be independent felony, as under the 1st degree FMR

      • Use the “purpose” test for this

    • Effect of the Felony Murder Rule

      • Under some, you might automatically be guilty of murder assuming all of the elements are established

      • Under others, it might set up a rebuttable presumption (like with recklessness under the MPC)

    • Felony murder rule can also be based on an attempt to commit a felony

      • Can’t turn back the clock in common law

      • MPC is explicit in allowing this

      • Of course, if you renounced, there’s no longer a felony

  • MPC definition of murder & FMR, p. 216:

    • Murder when one commits criminal homicide “purposely” or “knowingly.” 210.2(1)(a) This covers intent to kill

    • Part of “knowingly” might cover intent to do serious bodily injury, also recklessness w/ extreme indifference might cover it. 210.2(1)(b)

    • 1st sentence of 1(b) corresponds to depraved heart, “recklessly under circumstances manifesting extreme indifference to the value of human life.”

      • Risk must be real, not theoretical

      • Risk much be such that its disregard is a gross deviation from a law abiding person’s standard of conduct

      • Requires conscious awareness and disregard (subjective standard)

    • 2nd sentence of 1(b) is the Felony Murder rule. Lists crimes that, if D is engaged in them, recklessness w/ extreme indifference is presumed

      • D can rebut this presumption

      • D’s recklessness is also presumed (i.e. MPC felony murder rule applies)if he’s an accomplice, attempting to commit (or accomplice to attempt), or fleeing after a commission (or attempt) of named felonies

      • Crimes are: robbery, rape*, arson, burglary, kidnapping, felonious escape

      • MPC does not make the distinction about who your recklessness is directed at, so it might be possible to find someone guilty for the death of their accomplice, even if D didn’t intend that

    • MPC makes murder a 1st degree felony

Distinguishing within the levels:

  • Of Murder

    • Murder 1 (First degree murder)

      • “Willful, deliberate and premeditated killing”

      • 2 tests both require an intent to kill:

      • Drum: Mind must be “fully conscious of its own purpose and design” for deliberate

        • You need to know how you’re going to go about killing someone, but don’t need to be conscious of results

      • Cornett: – must fully “weigh and consider” the consequences, as in “do I really want to kill this person?”

        • Contemplates 3 stages: purpose of killing, intent to kill, and act; Need not be much time between 1&2 or 2&3, but there needs to be time somewhere for the consideration

      • Sometimes murder by torture, by explosives, or murder of a cop will get you to Murder 1

      • Felony murder rule, to get you to 1st degree murder:

        • Drum: murder committed in the perpetration of / attempt to perpetrate arson, rape, robbery, burglary

        • Felony must be “independent”

          • “Lesser included in fact” test – junk it

        • Judge independence on the basis of the purpose test: if D’s purpose in committing the qualifying felony was to kill or inflict serious bodily harm, then the felony will not be interpreted as “independent” for the purposes of the Murder 1 FMR

    • Murder 2


  • CL definition: any other homicide, w/o malice aforethought

  • Getting to manslaughter:

    • Top-down (murder, mitigated to manslaughter)

      • Provocation (see below)

        • Supposed to be value-neutral, not imply guilt on part of V

      • Unjustified but honest belief in necessity of self-defense

    • Bottom-up (something below manslaughter, raised)

      • Misdemeanor-manslaughter rule

        • Has nothing to do with whether something is classified as a misdemeanor

        • Rather, “misdemeanor” here means the same thing as malum in se – the rule applies to deaths that occur during the commission of mala in se offenses (does not apply to mala prohibita offenses)

        • Any requirement of inherent danger?

      • What would otherwise be an innocent homicide, but with recklessness

      • Or, with criminal negligence, in situations in which criminal negligence is part of the law for manslaughter (it is not in the MPC) – see “negligent homicide”

        • Difference of degree, not kind, between this and civil negligence – Gross deviation from standard of care, rather than regular deviation (Rodriguez)

        • An ordinary person would have known of the risk that the conduct could have resulted in death or SBI

        • But doesn’t require consciousness of the risk, because conscious disregard for the risk is recklessness, not criminal negligence

  • MPC definition of manslaughter, p. 217, 210.3

    • A homicide, committed recklessly, or

      • This is bottom-up, no mitigation, equivalent of involuntary manslaughter

    • A homicide that is otherwise murder is committed under the influence of an extreme mental or emotional disturbance (subjective) for which there is a reasonable explanation or excuse (objective).

      • “Reasonable explanation or excuse” corresponds with the “ordinary person” part of Farris.

      • Reasonableness is as to mental disturbance, not killing.

      • The reasonableness of the excuse is determined from the viewpoint of a person in the actor’s situation, under the circumstances as he believes them to be (objective, determination made by “a person,” not the actor).

        • MPC makes special dispensation for people who have a belief not in accord with the facts, just asks if their beliefs are reasonable; not the case with the “ordinary person” standard of Farris

      • This is the equivalent of voluntary manslaughter

    • MPC grades manslaughter as a 2nd degree felony

  • Misdemeanor/manslaughter rule: a homicide that occurs during the perpetration of a misdemeanor is manslaughter

    • In CA, as with the felony murder rule, the misdemeanor must be one that is inherently dangerous to human life

    • This gets you to involuntary manslaughter, at least for this statute

Provocation defense

  • Leads to voluntary manslaughter

  • Has subjective and objective component (so a coolheaded person is still guilty of murder):

    • Some extreme emotion caused D to lose his self-control, and

    • An ordinary person in the same circumstance would have lost self-control and not cooled. Farris

    • The “passion” (extreme emotion) can be any kind of extreme emotion that tends to make people lose self control. It need not be rage or anger, though it cannot be revenge. Borchers

    • The “extreme emotion” can mount over time. If the incidents happen over time, but not with enough space for a cooling-off period to occur, then provocation is preserved across time. Borchers

  • Words alone are generally not sufficient to count as provocation, for mitigation to manslaughter (Farris)

    • Words + minor physical contact do not count as provocation (Farris)

    • Words can provoke in some circumstances. Grugin

      • They might tip an otherwise insufficient assault into provocation territory, even if they don’t count as provocation in themselves.

      • Words might be enough when they convey facts, the content of which is sufficient to count as provocation (such as learning about an adultery)

        • This is accepted

      • Might also count as provocation when the indignity of words is equal to that of acts that can be held to provoke (“Fuck you” = spitting on someone)

        • This might not be accepted, in any jurisdictions

      • Legomsky talks about a 3rd category of words (besides insulting and information-conveying): threat

Distinguishing within the levels:

  • Of Manslaughter

    • Voluntary Manslaughter

      • Majority view: Any manslaughter that results from mitigation

      • Minority view: M/S with the intent to kill – Williams

      • Manslaughter voluntary under both when provoked

      • Involuntary under both when reckless

      • Voluntary under majority but involuntary under minority when there’s intent to do great bodily harm, mitigated

      • Can’t have involuntary under majority and voluntary under minority – logically impossible

    • Involuntary Manslauther

      • All other kinds of manslaughter

Negligent HomicideBier

  • Only exists as a statutory crime, does not exist under CL

  • Most states have such a provision, follow MPC & Bier

    • In some, it’s limited to particular kinds of deaths (vehicular homicide)

    • In states that have negligent homicide, the states mostly adopt the reckless/manslaughter, negligent/NH distinction

    • Some states are harsher: REGULAR negligence gets you to NH, criminal negligence gets you to man

  • It’s negligent homicide when criminal homicide is committed negligently

  • Graded as a 3rd degree felony

  • Negligence = Disregarding a risk of which one should have been aware, when this disregard is a gross deviation from the standard of care

    • Different from civil negligence as a matter of degree, not of type

    • Do not need conscious awareness / disregard for the risk, that’s recklessness

    • Harm must be foreseeable, just as in negligence; a person of ordinary care & disposition would have foreseen a risk of death or serious bodily injury

  • An unreasonable but honest belief in a threat to one’s life can, in some jurisdictions mitigate murder to negligent homicide. Watkins

Justification / Excuse / Mitigation

  • Justification: what you did would otherwise have been a crime, but you had some reason that made your actions permissible (self-defense)

  • Excuse: Although you did not have the right to do what you did, the law will not hold you responsible for the consequences of your behavior (insanity)

  • Mitigation: reduction, because of some special circumstance. Doesn’t get you off the hook altogether, although it may for one particular crime

Assault & Battery

Battery: The unlawful application of force to another

  • Unlawful

    • D must act with some specified state of mind; usually no more than criminal negligence. In some jurisdictions, recklessness is required, but very few would require intent (and that would mostly be for the aggravated form

      • Remember, criminal negligence is more severe than normal negligence

    • Not privileged (e.g., by self-defense)

  • Application of force

    • Doesn’t require contact (though it’s hard to imagine how this could happen without one)

    • Doesn’t require “harmful contact,” just unlawful application; don’t need bodily injury

  • Grading (if there is any)

    • Negligence might reduce a battery to a 2nd degree battery, other kinds might be 1st degree. Foster (which deals with “assault,” but it’s really battery).

  • Not every battery includes an assault (despite case language otherwise) b/c battery does not require intent, and assault always does

Assault: 3 views

  • An attempted battery, period

    • Minority view

  • An attempted battery with a present ability to complete that battery

    • Minority view

    • Present ability means actual ability – if D thought he could complete the battery but could not, no guilt

  • An attempted battery OR the tort definition of assault

    • Majority view, also most prosecution-friendly

    • Tort definition: D, either intending to cause or to threaten a battery, puts P in fear of imminent harmful or offensive contact

  • Main variables: what D thinks, what V thinks, what D thinks that V thought

Also, Jacobs – “every battery includes an assault” might be applicable on the exam, if such a case arises (you have a battery but not assault under one of the 3 definitions, and you’re trying to establish assault).

MPC, p. 248:

  • Simple Assault

    • A misdemeanor, unless part of a “fight or scuffle” by mutual consent (then, a petty misdemeanor)

    • Guilty of assault if you “attempt to cause … bodily injury”

      • Similar to “attempted battery” for assault, but you’re attempting bodily injury & not unlawful application of force

      • No present ability requirement

    • “Attempts by physical menace to put another in fear of imminent serious bodily injury”

      • Similar to the tort definition, but the person doesn’t need to fear contact, or anything offensive. And it must be serious.

      • “Physical menace” usually means “anything that would cause a reasonable person to be fearful” – satisfies “reasonableness”

    • Guilty of assault if you “purposely, knowingly, or recklessly cause[] bodily injury”

      • Battery incorporated into assault, but:

        • Have to cause bodily injury, not unlawful application

        • Also, criminal negligence is not sufficient, unless…

    • Guilty of assault if you “negligently cause[] bodily injury to another with a deadly weapon.”

      • Negligence doesn’t suffice if it’s not with a deadly weapon

  • Aggravated assault

    • Attempt to cause “serious bodily injury”

      • 2nd degree felony

    • Attempt to cause bodily injury w/ deadly weapon

      • Intent requirement reduced for this, b/c of weapon

      • 3rd degree felony

    • Cause “serious bodily injury” purposely, knowingly, or RwEI

      • Kind of like murder, but w/o homicide

      • 2nd degree felony

    • Purposely or knowingly causes bodily injury with a deadly weapon

      • Causation requirement reduced for this, b/c of weapon

      • 3rd degree felony

  • Reckless endangerment

    • Recklessly engages in conduct which places / may place another in danger of death or serious bodily injury

    • Recklessness & danger (rebuttably) presumed if 1 knowingly points a gun @ or in the direction of another, whether or not D knew it to be loaded

    • Misdemeanor

2 basic elements of all crimes: actus reus and mens rea

Actus Reus

  • Where there is no actus reus, person can’t be found guilty. Quick

  • There must be a voluntary act for the actus reus; criminal liability can’t be based on an unconscious or involuntary act. Decina

    • But, even if the act that immediately causes the harm (epileptic seizure) is unconscious or involuntary, actus reus can still be satisfied if you knowingly put yourself in a position to cause harm (driving in the first place). Decina

  • Failure to act / an omission cannot constitute the actus reus. Jones.

    • Exception: liability can be based on omission when a person has a legal duty to act. Examples:

      • Legally imposed duty, like by statute (pay your taxes)

      • Status relationship duty (parent-child)

      • Contract to provide care

      • Voluntarily assume care of another and then seclude them so that no one else can provide help

      • If you created peril in the first place, might have a duty to rescue

    • Assumption of duty is a voluntary act (but doesn’t mean it has to be a voluntary positive act; can be voluntary negative act)

  • Some states have established a duty to act by statute (good Samaritan laws)

Mens Rea, General & Specific

  • Mental part of the crime, required for all crimes

  • Many criminal statutes don’t provide the mens rea requirement; courts must determine

    • Whether to read in a mens rea

    • What mens rea to read in

  • General mens rea:

    • Required for every true crime, @ minimum

    • Intent to do the deed that constitutes the actus reus (purpose, knowledge are MPC equivalents), or some recognized substitue (recklessness, negligence)

    • Absence of exculpation (no justification or mitigation)

  • Can classify all crimes as those requiring:

    • Intent

      • To do the deed that constitutes the actus reus

      • To do something beyond that (specific intent)

    • Some recognized substitute (recklessness, negligence)

  • 1a) Intent: you intend a result if:

    • You desire that the consequence occurs (i.e., purposefully)

    • You know to a substantial certainty that your conduct will lead to a result

    • Examples: Chicago RR (intent not to stop), Peery (intent to expose)

  • 1b) Specific intent: particular intent for a particular crime, higher than the general mens rea requirement

    • Intent to do something in addition to the deed that constitutes the actus reus

    • Examples: Burglary (Dobbs), Larceny, Fraud (May)

    • Attempts are also specific mens rea crimes

  • 2) Recognized substitutes

  • 3 situations where intent is important

    • Where there is a particular statute

    • Attempt to commit any crime requires an intent to commit that crime

    • There are simply some crimes that require an intent to commit the actus reus (Peery, Chicago railroad)

  • MPC provisions:

    • Purposefully, 2.02(2)(a)

      • If element involves nature of conduct, he seeks to engage in conduct of that nature (i)

      • If element involves result of conduct, he seeks to cause that result (i)

      • If element involves attendant circumstances, he’s either

        • Aware of the existence of such circumstances (ii), or

        • Believes / hopes they exist (ii)

    • Knowingly, 2.02(2)(b)

      • If element involves nature of conduct, he is aware that his conduct is of that nature (i)

      • If element involves attendant circumstances, he’s aware that such circumstances exist (same as purposefully, really) (i)

      • If element involves a result of D’s conduct, D is “practically certain” that the conduct will cause the result (ii)

    • Recklessly, 2.02(2)(c)

      • “Consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct”

      • The risk must be such that to disregard it involves a gross deviation from the standard of conduct that a law-abiding person would observe in that situation

    • Negligently, 2.02(2)(d)

      • Person should be aware of a “substantial and unjustifiable risk that the material element exists or will result from conduct”

      • Failure to perceive risk must be gross deviation from a reasonable person’s standard of care.

Concurrence of Actus Reus and Mens Rea

  • Must be a concurrence of actus reus and mens rea

  • This doesn’t mean that they had to have happened at the same time, but that the mens rea had to have caused the actus reus

    • Decapitation case: 1st reading might be “this wasn’t done with the intent to kill”

    • But, there can be more than 1 act that constitutes the actus reus – if administration of cocaine is part of it, then the concurrence requirement is satisfied

      • But for administration of cocaine, none of these other events would have occurred

    • Legomsky wouldn’t characterize this as a continuing mens rea; thinks this way is a cleaner analysis

  • Also, sometimes you can recharacterize the actus reus to establish a concurrence

    • Ex: if the mens rea to defraud your insurance company by burning your house down isn’t formed when the fire starts, you can characterize “not putting the fire out” as the actus. Cali

    • This is b/c Cali had a legal duty to extinguish, b/c he created the danger

  • But, when a statute requires a crime to be committed with a particular mens rea, it does mean that literally

Ex: Burglarly requires breaking & entering dwelling place @ night w/ intent to commit another felony – really have to have the intent to commit that other felony when you break in; can’t be established after the fact
Conditional Intent / Knowledge of Facts & Results

  • CL: Conditional intent will suffice to establish mens rea when the demand on which the intent is conditioned is unlawful. Connors

  • MPC provision, 2.02(6) – purpose is established even though conditional, unless “the condition negatives the harm or evil sought to be prevented by the law defining the offense.”

    • “The condition” = what has to happen in order for D to go through with his act (for the intent to be effectuated)

    • Legomsky’s example: a guy who takes a book home with the intent of keeping it only if his isn’t at home. No larceny, b/c the condition (I will keep it only if it’s mine) negatives the harm that the larceny statute seeks to prevent (stealing & keeping what’s not yours)

  • Knowledge:

    • CL Tests for knowledge – Beale

      • Majority: subjective test: what D actually knows, not what a reasonable person would know

      • Minority: objective test: what a reasonable person would know

    • Law assumes no one knows anything to 100% certainty; rather, knowledge means believe, in terms of a high probability

    • MPC: 2.02(7) – Knowledge of high probability

      • If knowledge of the existence of a particular fact is an element of the offense, then knowledge is established if the D was aware of a high probability of the fact’s existence, unless D believed that it did not exist

    • When do you use 2.02(2)(b), “Knowingly,” and when 2.02(7)?

      • 2.02(2)(b) involves nature & results of conduct, attendant circumstances

        • Ex: will a gunshot kill this guy?

      • 2.02(7) involves belief in the existence of facts

        • Ex: are the goods stolen

Strict Criminal Liability (Malum in se vs. Malum Prohibitum)

  • Distinction:

    • Malum in se – a crime that is wrong in and of itself

    • Malum prohibitum – the thing is only wrong because there’s some statute or regulation making it so

    • Not all CL crimes are mala in se (but most are), and not all statutory crimes are mala prohibita

  • Affects:

    • Whether someone can be guilty of a conspiracy (test changes for mala prohibita conspiracies, see below)

    • Misdemeanor-manslaughter rule

      • Test isn’t “is it a misdemeanor,” but “is it mala in se (and not a felony)” – rule doesn’t apply to mala prohibita offenses

    • Burden & standard of proof not the same for civil offenses

  • Malum Prohibitum offenses not thought of as pure crimes, more like “public torts” that use the criminal machinery – The Queen v. Stephens, Olshefski

  • Look at statute, which will tell you if mens rea is required

    • Problem: sometimes statutes don’t include mens rea – what to do? Must decide whether legislature intended one to be red in, or intended to exclude mens rea requirement

  • In deciding whether to read in mens rea, courts look at:

    • The penalty imposed

      • Almost never read statute as imposing SL if jail’s involved

        • Except maybe jail b/c you didn’t pay a fine

      • Also, if the fine’s large enough, unlikely to be SL either

    • The social stigma imposed on the defender

    • Reprehensibility of crime

    • Also, it may be a factor if requiring mens rea for all those picky, minor statutory violations might clog up the courts

    • No real concrete majority view, other than to weigh (at least the first 3) factors – otherwise, courts all over the place

  • Even if there’s evidence of legislative intent not to require mens rea for a crime, it violates due process to imprison on the basis of vicarious strict liability – Koczwara

  • MPC: 2.05, p. 744

    • Culpability requirements of MPC don’t apply to “violations,” within the Code, unless

      • The definition of the offense includes the requirement

      • Application of culpability requirement is “consistent with effective enforcement of the law defining the offense”

    • Culpability requirements don’t apply within other statutes (besides the code), if a legislative purpose to impose absolute liability “plainly appears”

    • Regardless of existing law & unless a later statute so provides,

      • If absolute liability is imposed as to a material element of any offense & conviction is based on absolute liability, the offense is a “violation”

      • Even though absolute liability may be imposed, you can charge the culpable commission of the offense – negligence is sufficient for culpability

Mistake / Ignorance of the Law / Ignorance of the Facts

Mistake of law

  • CL generally: ignorance of the law is no defense

    • Ignorance of the law can be a defense if your ignorance of a particular statute prevents you from forming specific intent. Cude, bigamy hypo

      • Must be ignorance of some law other than the one defining the offense – “I didn’t know this was illegal” doesn’t count

      • Only applies to specific intent crimes, not general mens rea crimes

  • For conspiracy to commit a malum prohibitum offense, ignorance of that law is a defense: Benesch

    • Conspiracy to commit MP offense requires 1) knowledge of the law prohibiting the conduct, and 2) knowledge that your conduct violates this law

    • Conspiracy requires the knowledge that you’re agreeing to do what the law regards as wrong, can’t have that specific intent if you don’t know of the MP offense – but you can for mala in se offenses, b/c those are wrong in themselves

    • Also, when you’re charged with conspiracy, you’re charged with violating the conspiracy law, so the “different law” exception applies too

  • If the law is malum prohibitum, and too obscure to expect person to know about it (and also maybe if the punishment is really steep?), then ignorance of the law is a defense (Lambert exception)

  • Minority & more modern view – if mistake prevents you from having that mens rea, then it’s a defense

  • Majority & older view – if the statute doesn’t establish a specific intent crime, then there’s no defense, even if you have the “read in” mens rea

Mistake of fact

  • At common law, different rules govern mistake of law & mistake of fact

  • 3 part test:

    • Must be mistake of fact (as opposed to law)

    • Must be a reasonable mistake

    • Mistake has to be such that your actions would not have been wrongful, had the facts been as you thought them to be

      • Does your mistake negative the knowledge that is an essential element of the crime (mens rea)? Vogel

      • Wrongful used to include noncriminal things such as premarital sex, which might explain why mistake of age was not a defense to statutory rape

      • Today, “wrongful” means “criminal,” i.e. that if the person were correct in their interpretation of the facts, wouldn’t be guilty of another crime

  • Mistake of age might not be a defense to statutory rape today, in all jurisdictions

    • Was in Hernandez, was not in Cash

  • Burden is on D to prove mistake

  • Often might have to establish whether a statute requires a mens rea or not, before looking at whether mistake can be a defense


  • MPC 2.02(9), p. 743 & 846 – Knowledge, recklessness, negligence as to 1) whether conduct constitutes an offense, or 2) the existence, meaning, or application of law determining the elements is NOT an element of any offense, unless otherwise defined by statute / code (in other words, ignorance of the law is no defense)

  • Ignorance or Mistake, MPC 2.04, p. 846 (mistake of law & fact the same)

    • Ignorance or Mistake a defense if:

      • Ignorance or mistake negatives any mens rea required to establish a material element of the offense

      • Law provides that the state of mind established by ignorance / mistake is a defense

    • Ignorance / Mistake not a defense if D would be guilty of another offense had he been right. But in this case, D’s conviction is reduced in grade & degree to that of the crime he’d have been guilty of, if he were right.

    • Belief that conduct doesn’t legally constitute an offense is a defense when:

      • Statute both isn’t known to actor & wasn’t published or otherwise available before prior to conduct alleged, or

      • D acts in reasonable reliance on statement of law, which afterward is revealed as erroneous (lawyer’s advice doesn’t count here)

      • D must prove this by preponderance of the evidence

  • MPC p. 858-859, specifically dealing with sexual crimes

    • 213.6, mistake as to age

      • If criminality depends on child’s being below 10, then mistake (lack of knowledge / reasonable belief) is no defense. If the criminality depends on child’s being below a critical age other than 10, it is a defense for D to prove, by preponderance, that he reasonably believed the child to be above the critical age

    • 230.1 Bigamy and Polygamy

      • A married person is guilty of bigamy (misdemeanor), if he contracts or purports to contract another marriage, unless

        • D believes spouse to be dead

        • D & prior spouse were living apart for 5 years, and during this time D didn’t know spouse to be alive

        • Court has entered a judgment purporting to terminate / annul the marriage, and D doesn’t know that’s invalid

        • D reasonably believes he’s eligible to remarry

      • Other party – the plural spouse is guilty if he/she contracts with another for marriage, knowing that the other thereby commits bigamy or polygamy

Inchoate Crimes (Incomplete crimes) – Conspiracy, Attempt, Solicitation

  • Always add in what the target crime is!


Majority of jurisdictions:

  • Agreement w/ someone else to commit unlawful act

    • Today, “unlawful act” means crime

    • Didn’t use to exclusively mean crime under CL:

      • Civil offenses

      • Conspiracy to do certain things could be crime, when the thing itself would not be

  • MPC: must agree with 1 or more other persons that 1 or more of them will

    • Engage in conduct constituting the crime, or an attempt or solicitation of the crime

    • Agree to aid others in planning for the crime, attempt, or solicitation

  • @ least 1 conspirator must commit “overt act” toward commission of crime

  • MPC has same overt act requirement as CL, except maybe for 1st/2nd degree felonies – 5.03(5), p. 539

Minority of jurisdictions:

  • No overt act requirement

Why punish conspiracy? It increases chance of crime happening:

  • Danger of group – not 1 person’s decision to abort

  • Group mentality – people get pressured into staying with group

  • One person pulling out might not be enough to stop

  • Crime more likely to be successful w/ planning

  • Proof problems of 1 person’s “intent to commit” don’t apply

  • Agreement is the “first step” – law formalizes that, makes it the actus reus

  • In society’s interest to deter such agreements

  • After conspiracy, the group of criminals is in contact w/ each other

In order to be guilty of a conspiracy to commit a malum prohibitum offense, you need the specific intent to commit that offense. Benesch. Requires:

  • Knowledge of the underlying substantive law

  • Knowledge of the facts that make conduct violative of the law

  • Actual knowledge here can’t be predicated on “presumed to know the law”

Two needed to conspire. If you can’t have 2 people possibly guilty of conspiracy to commit X crime, then no one can be guilty. Benesch

  • Some limited exceptions (like “conspiring” with a federal agent)

Wharton’s rule: If a substantive crime necessarily requires 2 or more people for its commission, then neither of them can be charged w/ conspiracy. Figueredo

  • Rebuttable presumption of legislative intent; need not apply

  • Typical examples: adultery, abortion, illegal sale

  • Applies even if the group only agrees to commit the crime but doesn’t do it (so the substantive crime is never committed)

  • Flip of the rule: doesn’t apply when 1 of the conspirators could have committed the offense alone

  • Clarification: only applies to cases of logical necessity; doesn’t apply when crime could only have been committed, as a practical matter, by 2 or more

    • Example: fraudulent filing of tax returns in business partnership

  • Exception to the rule: Wharton’s rule only applies when the essential participants are the only people agreeing to commit the crime; if someone playing a logically unnecessary role enters an agreement to commit a crime, all are chargeable with conspiracy

The Exception to Wharton’s Rule, applied:

  • Majority of jurisdictions: if the # involved is greater than the statutory minimum #, then the exception applies; all can be charged w/ conspiracy (count bodies)

  • Minority: Even if the # involved in the commission of the crime is greater than the statutory minimum, Wharton’s rule still applies if all are playing a logically necessary role – all guilty of substantive crime (and not through inchoate / accomplice provisions)

Another defense to conspiracy (Gebardi): if:

  • Crime frequently requires two or more willing participants

  • Legislature intended not to punish one participant for the specific offense

  • Then, that participant can’t be punished for conspiracy to commit that crime

Comparing Wharton’s rule and Gebardi:

  • Both apply when: Crime necessarily requires 2 or more people, and statute creating the offense exempts one from punishment

  • Neither apply when: Crime does not necessarily require 2 or more, and statute doesn’t exempt any party from punishment

  • Wharton’s rule applies but Gebardi does not when: Crime necessarily requires 2 or more, but none are exempted from punishment

  • Gebardi applies but Wharton’s rule does not when: No such situation exists

If you sell an otherwise lawful good, and you know that good is going to be used in the commission of a crime, you’re not guilty of conspiracy. Participation is necessary; you will be guilty of conspiracy if you have some stake in the outcome (getting a cut) or do more than sell the good (install it, for ex). Falcone

  • Probably applies to giving something away, too

  • Caveat: If you sell a gun and you know the buyer is going to kill someone, then you are guilty of conspiracy to murder b/c of the increased risk of harm

    • A lot of contradiction / inconsistency in the case law as to this point

Pinkerton rule: A conspirator who does not himself commit the substantive crimes is guilty of all of the substantive crimes committed in furtherance of the conspiracy, unless those crimes are unforeseeable.

  • A majority of jurisdictions + MPC reject this rule

    • But, accomplices are guilty of the substantive crime

    • And in most cases, conspirators will be accomplices

  • Rule applies in federal jurisdiction, minority of state jurisdictions

    • There is a further split, in these jurisdictions – some do not apply the “unless those crimes are unforeseeable” exception


All of the standard rationales for punishment apply

  • In some states, punishment is not the same (probably a majority)

  • In some, it is – MPC puts it in the “same” category, at least for grading

In some states, you can be punished for attempt and the crime

  • In some states, if you finish the act or finish commission, can’t be punished for attempt

2 Necessary elements of attempt:

  • Intent to commit a specific offense

  • An act which is a substantial step toward its commission – Paluch

Under the MPC – 5.01(1), p. 490

  • Must have the kind of culpability “otherwise required” for the crime

  • Must:

    • Purposefully engage in conduct that would constitute crime, if attendant circumstances were as he believed them to be

      • Ex: selling a bag of powdered sugar you believe is coke

    • Do / omit sth w/ purpose of causing or belief that it will cause a certain result without more from him, which result is an element of the crime,

      • Ex: shooting where the guy isn’t sleeping

    • Purposefully do / omit sth which, under circumstances as he believes them to be, is a “substantial step” (see that part)

Attempt and assault: State v. Wilson

  • You can have attempted assault where the definition is something other than “assault = attempted battery”

  • So if assault = attempted battery + present ability, attempted assault = attempted battery, no present ability

  • Likewise, if assault = tort definition, maybe you can have an attempt for that?

Action has gone far enough to constitute an attempt when the person has come within a “dangerous proximity of success.”

  • Synonyms for “dangerous proximity:” an act that constitutes a “substantial step,” Paluch; an act “tending … to affect its commission,” Rizzo

  • Preparation to commit an offense is insufficient to establish “substantial step” – Paluch

  • Courts are all over the place on what is sufficient for a “substantial step” as a matter of law – hard to reconcile

    • Gathering tools – enough for attempt?

    • Travelling to place for commission of crime – courts differ

      • Ex: Rizzo, not sufficient – chance they never would have found the guy to rob

    • Lying in wait – probably enough

  • The degree of apprehension that the crime excites is a factor – more apprehension makes it more likely D will have to turn back, therefore the closer you must get for there to be a “dangerous proximity”

  • Important question for dangerous proximity: did the person commit the “last act” they thought was necessary for the crime? Mitchell

  • The MPC on “substantial step, 5.01(2):

    • Action must be “strongly corroborative” of criminal purpose

    • Lists a bunch of actions that are sufficient as a matter of law; inclusion on this list doesn’t intend to exclude other fact situations

Impossibility: defense to the crime of attempt

  • Attempting to reconcile the facts of cases can drive you mad

  • Test for guilt in attempt: if the alleged criminal succeeds in doing everything that he intended to do, is he guilty of the substantive crime? Wilson v. State

    • If he would not be guilty of the substantive crime under this test, then he can’t be guilty of attempt

    • If guilty of the substantive crime, that doesn’t end inquiry – have to look to “dangerous proximity”

    • Wilson

      • Intended to change the numerals, and did change the numerals

      • Wasn’t guilty of forgery

      • Could articulate the intent differently

    • Mitchell

      • If he had done all that he intended to do (i.e. shoot him & kill him), he’d be guilty of murder

    • Rojas

      • Intended to receive property, and did receive property

      • But, they also intended to keep the property – they would have done so if it was stolen

      • Impossibility didn’t apply when police intercepted property and then let the criminals “buy” it, “stolen”

      • Not guilty of completed crime, however

    • A lot hinges on how you articulate the intent; can articulate it in a way favorable to either side

      • Don’t apply legal labels – rather, ask factually what person intended to do and ask if that person can be guilty

      • Beyond this, it’s an instinctive judgment between P & D’s articulations of intent, which is more convincing

  • May be able to moot the impossibility issue by finding an attempt before the crime became impossible, so long as there’s dangerous proximity

  • Legal impossibility vs. factual impossibility

    • Legal impossibility is a defense, factual impossibility is not

    • Good conclusory labels

    • Ex: a boy under 14 cannot be punished for rape – it is legally impossible for him to commit rape – Preddy

      • However, might be possible for him to penetrate a woman w/o consent

    • The old man is under no legal protection from rape, but only failed to commit it b/c of impotence

    • But, “legal impossibility” in Ovedio, b/c couldn’t be guilty of substantive crime

      • Guy not guilty for attempt when selling fake heroin – he intended to sell the object he sold, not heroin, & thus wouldn’t be guilty under the test

    • Again, the above test works better – if the old man did everything he intended to do, he would have had unconsentual sex & would have been guilty of rape – so he’s guilty of attempted rape


  • Getting another to commit a crime, such as for payment

  • The solicitation itself is the actus reus

  • Can be guilty of this & the substantive crime

  • The Gebardi exception to conspiracy might apply, might be transferable into solicitation. For solicitation, many states say you can’t be guilty of solicitation unless that person, if they went through with it, would be guilty of a crime. Have to check to see whether the solicitee would be guilty of crime

  • If you ask a person to commit a crime that would not be a crime for them (ex: no mens rea), you can’t be guilty of solicitation

  • MPC definition, 5.02, p. 491

    • W/ purpose of promoting or facilitating crime,

    • Encourages, requests, commands another to engage in conduct that would constitute the crime, or which would constitute an attempt, or which would establish other person’s complicity in commission / attempted commission – 5.02(1)

    • Doesn’t matter if solicitor fails to communicate, so long as his conduct was “designed to effect such communication” – 5.02(2)

Incapacity, irresponsibility, immunity to solicitation or conspiracy, MPC 5.04, p. 491

  • It is a defense that, if the plan were carried out, the actor wouldn’t be guilty of a crime under either the substantive law or as an accomplice, 5.04(2)

  • It is no defense that:

    • Solicitor / conspirator, or the person with whom he solicits or conspires, lacks a particular characteristic which is an element of the crime, so long as solicitor / conspirator believes that has that characteristic, 5.04(1)(a)

    • Person solicited / conspired with is irresponsible or has immunity to prosecution or conviction, 5.04(1)(b)


  • Either means:

    • Can’t convict of two inchoate crimes for the same target offense

    • Or, once the merger has occurred, one inchoate crime ceases to exist, so it is not even chargeable

  • At common law:

    • Solicitation merges into conspiracy, attempt, and the substantive crime

    • Attempt merges into the substantive crime (sometimes, see attempt sec.)

      • Attempt absorbs solicitation

      • Attempt and conspiracy do not merge

    • Conspiracy and the substantive crime do not merge

      • Conspiracy absorbs solicitation

      • Attempt and conspiracy do not merge

    • Substantive crime absorbs attempt, solicitation

  • MPC:

    • 5.05(3), p. 492 – can’t be convicted of more than 1 inchoate crime

    • Another provision (that we haven’t read) says you can’t be convicted of any inchoate crime along with the substantive offense

  • Procedural rules vary from state to state

Grading crimes

  • Inchoate crimes are of same grade / degree as the most serious of the target crimes, 5.05(1), p. 491

  • Except:

    • No inchoate crime can be 1st degree felony – bump down to 2nd (5.05(1))

    • If the inchoate crime is “so inherently unlikely to” lead to commission of crime, court has discretion to downgrade or dismiss, 5.05(2), p. 491

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