Criminal Law Outline
1. 2.06 MPC
a. a theory of vicarious liability; first you must figure out if another person actually
committed the crime. Then, you have to ask whether the actor is vicariously
liable under 2.06 for the offense someone else committed because he is an
accomplice under 2.06(2)(c). Then on (2)(c) and (3) he just has to have the
purpose to assist the actual perpetrator.
b. If you had an intent to promote or facilitate intoxicated while driving, it just
Entrapment law in CA
1. The federal test is the subjective test
2. MPC: predisposition but it is one of the typical reasonable person in the community.
3. CA: CA uses the more objective test, but it uses the predisposition of the objective
under 3.06 he didn’t believe she was in possession and it comes down to what you believe. If
you believe the right set of things you have the right to use force
you can use involuntary intoxication in CPC.
Under 25 you can use diminished actuality to negate specific intent, but not general intent.
b. 196 is unconstitutional?? And 197(4) may be unconstitutional as well and applied to the facts of that
case in many cases.
There is a more specific statute in CA to effect an arrest that is constitutional.
c. Proving a crime
Burden of production and burden of pleading are the same thing
The D has to identify evidence that if the jury chose to credit it, there would be adefense. The
judge just said that because you haven’t given evidence that would meet these elements.
d. For entrapment: under the MPC, the burden is on the D. the general rule in 1.12 only puts the burden
of production on the D, unless the statute otherwise provides, which for entrapment it does say that the
burden is on the D.
II. Two prongs to the DP defense
a. Notice and
b. Sufficient standards for enforcement
a. Proximate cause
look at the crime and the harm it is trying to prevent.
Causation seems like a good defense for a solicitation charge
You can conspire to commit assault
c. Consent for rape
It is not in rape statutes, but what it is is the mirror image of compels by force. So although
consent is not an element.
d. Double jeopardy stuff
Ashe v. swesond gives us the CE principle, but the actual statutes are narrower
1. Look at evidence
a. Try to identify the applicable statutes
b. Divide the elements (culpability and objective)
c. Consider if the evidence meets these elements
d. Look for terms that need definitions
e. Consider any defenses that could apply
2. Criminal-Civil Differences
a. Culpability Requirements
a. Bringing about a prohibited harm or evil is not enough; the actor must have the necessary
culpable mental state.
b. Criminal law addresses crimes of sufficient seriousness
1. See MPC 2.12(2) (De minimis defense)
2. Consent as a defense
1. A victim’s consent is rarely a defense to a criminal charge unless it vitiates the
harm or evil of the offense
1. Elements of a Crime
a. There are two kinds of elements to a crime:
a. Objective elements: what actually happened
1. Conduct element: an element of theft is the taking of property
2. Circumstance element: in statutory rape, it is having sex with a person under the age of
3. Result element: murder, the result element you have to prove is the death of a human
b. Culpability element: a state of mind element (mens rea)
1. Intentionally, recklessly, negligently
2. In Re Winship
a. The reasonable doubt standard has a vital role in criminal procedure. It is an instrument reducing the
risk of convictions resting on factual error.
a. The standard provides substance for the presumption of innocence whose enforcement lies at
the foundation of the administration of criminal law
b. A person would be at a disadvantage amounting to a lack of fundamental fairness if he could be
adjudged guilty on the strength of evidence that would suffice in a civil case
1. We want to have a higher standard because we value liberty and reputation
2. Decreases margin of error in fact finding
3. Needed to command the respect and confidence in the public
b. Due Process
a. DP commands that no man shall lose his liberty unless the government has borne the burden of
convincing the factfinder of his guilt
b. This is why the reasonable doubt standard is essential because it impresses on the trier of fact a
subjective state of certainty of the facts.
V. The Legality Principle
a. The legality principle holds that criminal liability and punishment can be based only upon a prior
legislative enactment of a prohibition that is expressed with adequate precision and clarity.
b. Marsh Case
The marsh case is trying to illustrate the principle of legality which is like saying do not think
about right and wrong, but we require a legislative statute that specifically makes the conduct
c. Void for Vagueness
Rooted in the due process clause, it states that a statute must give sufficient warning that men
may conform their conduct so as to avoid that which is forbidden.
However, a statute is not unconstitutionally vague merely because one of its elements calls for
a matter of judgment.
d. Vague v. Ambiguous
An offense provision is vague if it does not adequately define the prohibited conduct.
If a provision defines the conduct with some specificity yet is subject to two or more
interpretations, then it is ambiguous which is not necessarily unconstitutional.
f. Some standard rules have been adopted by courts as being useful in resolving ambiguous language.
Rule of Strict Construction
1. When faced with an ambiguity, the law typically applies a special rule for interpreting
criminal statutes. The rule of strict construction directs than an ambiguity in a statute be
resolved against the state and in favor of the D.
Ex post facto laws
1. Invalidates laws that criminalize prior, lawful behavior and those that aggravate the
punishment for a crime to a level greater than when the crime was committed or apply a
harsher penalty than when the crime was committed.
1. Where a statute is ambiguous, courts cant just choose the interpretation they think is
best. A court’s role in interpreting a statute is to determine and follow the legislative
2. Plain meaning rule
a. The inquiry into legislative intent is to be used only if a clear ambiguity exists in
the statutory language. No inquiry beyond the face of the statute is appropriate
where the language is plain and admits of no more than one meaning.
Interpreting the language of a statute
1. Where a document uses different language in different parts, there is a presumption that
the legislature intended different meanings.
2. Where a list ends in a catch all phrase (or other…) the phrase must be interpreted to be
limited to the theme or common factor of the specific entries in the list. (rule of ejusdem
generis—look at the specific to illustrate the general)
3. Where a statute sets forth a list of exceptions, other exceptions are by implication
4. The more specific statute has priority over the more general
Rule of Strict Construction
1. Ambiguity concerning the ambit of criminal statutes should be resolved in favor of
lenity. This rule of lenity suggests that while a statute is strictly construed, defenses are
2. Rule of fair import
a. Gives the court the authority to interpret statutes in a way that does not frustrate
the legislative purpose, yet, by relying on the fair import of the terms, the rule
seeks to ensure that some reasonable notice of the offense is possible.
b. CPC: Section 4. Construction of the Penal Code
i. The rule of the common law, that penal statutes are to be strictly
construed, has no application to this code. All its provisions are to be
construed according to the fair import of their terms, with a view to
effect its objects and to promote justice.
g. The Rationales for The Legality Principle
1. Fairness requires that an actor have at least an opportunity to determine what the
criminal law prohibits. Actual notice is not required for liability; it is enough that the
prohibition has been lawfully enacted.
1. Effective deterrence requires that the prohibited conduct be clearly defined.
h. Countervailing Interests
While precise written rules make liability decisions more predictable and uniform, such rules
also tend to leave decision makers less able to adapt the law as needed to deal with new or
unusual problems, create the potential for criminal law adjudication to be caught up in
technicalities that undercut the moral credibility of the law, and make it more difficult for the
law to incorporate the normative judgments of the community.
Fixed rules can leave the criminal law unable to punish new forms of criminal conduct.
Another effect of the precision demanded by the legality principle is its tendency to exclude
moral judgments, which typically cannot be expressed in precise language.
i. Calder v. Bull (SCOTUS)
The constitution prohibits the legislature from passing any ex post facto laws such as:
1. Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action
2. Every law that aggravates a crime, or makes it greater than what it was when committed
3. Every law that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed and
4. Every law that alters the legal rules of evidence, and receives less, or different
testimony, than the law required at the time of the commission of the offense.
j. US v. Powell (SCOTUS)—Interpreting Ambiguous Statutes
The court says the statute bans the mailing of "firearms capable of being concealed" and could
only narrow that language with evidence of congressional intent
The rule of ejusdem generis is only an instrumentality for ascertaining the correct meaning of
words when there is uncertainty
It limits general terms which follow specific ones, but it may not be used to defeat the obvious
purpose of legislation.
Here, the purpose of the bill was to avoid having the Post Office be used as a way to illegally
possess weapons prohibited by local laws and shotguns are even more likely to be banned by
local laws than pistols
Held firearms statute was not vague and the ejusdem generis rule cannot be used to defeat the
obvious purpose of legislation.
k. Koleander v. Lawson (SCOTUS)
The void for vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.
Held that a statute that punished an individual for failing to provide credible and reliable
identification was unconstitutionally vague and violates an individual’s due process rights.
a. Justifying punishment
1. violators deserve punishment for their wrongdoing. Imposing deserved punishment
requires no further justification. Doing justice in a value in itself.
1. The imposition of punishment is justified by its utility, most commonly by the
beneficial consequence of avoiding future crime, such as through deterrence,
rehabilitation, or incapacitation.
However, each distributive principle would distribute punishment in its own way, and thus, the
central foundational issue for criminal law theory and policy is to determine which distributive
principle, or combination, should be preferred.
b. Deterrence General and Specific
Both would make the punishment proportional to the seriousness of the offense. Both would
increase punishment to compensate for offenses with low capture rates. That is, if the
probability of punishment for an offense is lower than average, the amount of punishment
threatened must be correspondingly higher in order to maintain the overall deterrent threat.
1. The aim to deter other potential future offenders.
2. Increases punishment to compensate for offenses with low capture rates
3. Imposes greater punishments where more people would know about it
4. Would punish the incapacitated
1. Aims to deter the offender at hand
a. Would not punish the incapacitated because it would have no effect
Preventing future offense by incapacitating those who may commit offenses by imprisoning,
executing, or in some other way making a subsequent offense impossible.
Punishment would not have to wait until after the commission of an offense. A reliable
prediction of future criminality would provide adequate justification.
Seeks to take away the offender’s desire or need to engage in criminal conduct.
Effectiveness of this requires the ability to accurately identify people who need rehabilitation
and the ability to determine when a person is rehabilitated.
e. Deontological Desert
The sole criterion of punishment is the actor’s moral blameworthiness, as assessed by moral
philosophers. A person is punished if and only if they are blameworthy—no more, no less.
f. Empirical desert
Desert based on the community’s shared intuitions of justice rather than on philosophical
notions of desert.
g. The strengths and weaknesses of each principle
General deterrence-strengths: It has the potential for enormous efficiency. For the cost of
punishing just the offender at hand, it can deter thousands, or millions, of others who hear
about the case and heed its warning.
1. Weaknesses—may be limited: First, a deterrence-based rule can deter only if the
intended targets are aware of the rule, directly or indirectly. Second, even if the target
audience knows of the deterrence-based rule, a deterrent effect can come about only if
the targets have the capacity and inclination to rationally calculate what is in their best
interest. Third, even if a person knows of the deterrence based rule and can and does
rationally calculate their conduct, the rule will deter only if the person concludes that
the costs of committing the offense exceed its anticipated benefits. Also it likely will
distribute punishment in a way that conflicts with the communities shared intuitions of
justice as well as with deontological notions of desert.
Special Deterrence: can avoid future crime by the offender at hand, although it lacks the
potential for the enormous efficiency of general deterrence. It works only with the offender at
Rehab strengths—rehabilitation can avoid crime by the offender at hand. Weaknesses: the
potential for crime control benefits from a rehabilitation distributive principle are limited. It
can only have an effect on the offender at hand; it does not share the enormous potential
efficiency of general deterrence to reach others.
Incapacitation strengths: unlike deterrence, the effectiveness of this crime prevention
mechanism does not depend on effective communication of the threatened sanction to potential
offenders or on the potential offenders’ calculations of a cost-benefit analysis in governing their
1. Weaknesses: for it to be effective, one must be able to identify dangerous persons
before they act, preferably with a minimum of false positives.
Empirical desert strengths: because this will track the community’s shared intuitions of justice,
it may enhance the justice system’s long term crime control effectiveness in a variety of ways.
The system’s greater moral credibility also can increase the stigmatizing force of criminal
violations. The better the system’s reputation for getting it right on imposing criminal liability,
the more such liability is likely to provoke moral condemnation. Weaknesses: the central
weakness of the system is its potential to do injustice that is not apparent to the present
community. The community’s shared views of justice may simply be wrong. It may pass up a
great crime-control opportunity if it required a deviation from empirical desert.
Deontological Desert Strengths: its obvious strength is that it does justice—true justice, not just
the community’s perception of justice as relied on by empirical desert. Weaknesses:
h. Choosing an effective one
Empirical desert has some attractiveness because it seems to advance utilitarian crime-control
concerns without conflicting with deontological desert as much as deterrence, rehab, and
1. An empirical desert proponent may point out that an empirical desert distribution of
punishment will provide some level of general deterrence.
2. It would be problematic for rehabilitation to be used as a sole distributive principle for
such would mean that if a person could not be rehabilitated, which would commonly be
the case, the criminal justice system would have no basis for taking custody or control.
3. Incapacitation has a high likelihood of regularly conflicting with desert. The greatest
argument against using it as a distributive principle for criminal liability and
punishment may be that its purposes can be as effectively, and perhaps more effectively
and fairly, achieved through the use of a civil preventive detention system.
i. MPC 1.02
Lists a variety of principles and urges judges to try to advance them all. But because different
principles suggest different liability rules, the failure to articulate an interrelation among them
means that the MPC in fact provides little guidance. To provide real guidance, a hybrid
distributive principle must fully articulate the interreltation among the two or more principles
upon which each relies.
j. 1.02(2) . Purposes
(2) the general purposes of this provision governing sentencing and corrections, to be
discharged by the many official actors within the sentencing and corrections system are:
(a) in decisions affecting the sentencing and correction of individual offenders:
(i) to render punishment within a range of severity proportionate to the gravity of
offenses, the harms done to crime victims, and the blameworthiness of offenders
(ii) when possible with realistic prospect of success, to serve goals of offender
rehabilitation, general deterrence, incapacitation of dangerous offenders, and restoration of
crime victims and communities, provided that these goals are pursued within the boundaries of
sentence severity permitted in (a)(i) and
(iii) to render sentences no more severe than necessary to achieve the applicable
purposes from (a)(i) and (iii)
k. People v Ewing (SCOTUS)
Case where D had stolen golf clubs, but was a recidivist offender, and so the court under CA’s
three strikes law sentenced him to 25 years to life.
The 8th amendment does not require strict proportionality between crime and sentence; rather it
forbids extreme sentences that are grossly disproportionate
The courts deference to the legislature is supported by the principle that the Constitution does
not mandate any one penological theory (incapacitation, deterrence, retribution, or
Nothing in the 8th amendment prohibits legislatures from choosing their policy here and
recidivism has long been recognized as a legitimate basis for increased punishment
Held no 8th amendment violation for D under CA’s three strikes law
VII. Culpability Requirements
a. Early Notions of Mens Rea
Regina v. Prince
1. One judge stated that it was enough that the D committed the objective offense, but
another judge that he must have at least had intended to do something that was criminal.
Regina v. Faulkner
1. Held that the D must have at least intended to do something criminal that might
reasonably have been expected to have led to the actual harm caused and charged.
b. From Offense Analysis to Element Analysis
2.02(1) requires culpability with respect to each material element of the offense; a person is not
guilty of an offense unless he acted purposely, knowingly, recklessly or negligently as the law
may require with respect to each material element of the offense.
(2) Kinds of culpability
(a) Purposely: A person acts purposely with respect to a material element of an
(i) if the element involves the nature of his conduct or a result thereof, it
is his conscious object to engage in conduct of that nature or to cause such a
(ii) if the element involves the attendant circumstances he is aware of the
existence of such circumstances or he believes or hopes that they exist.
(b) Knowingly: A person acts knowingly with respect to a material element of
an offense when:
(i) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that such circumstances
(ii) if the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result.
(c) Recklessly: A person acts recklessly with respect to a material element of an
offense when he conscious disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct (subjective standard—the actor
must actually be aware). The risk must be of such a nature and degree that, considering
the nature and purpose of the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation. (objective standard—the disregard of the
risk must be unreasonable in the actor’s situation).
(d) Negligently: A person acts negligently with respect to a material element of
an offense when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross deviation
from the standard of care that a reasonable person would observe in the actor’s
situation. (individualized objective standard).
(3) When the culpability sufficient to establish a material element of an offense
is not prescribed by law, such element is established if a person acts purposely,
knowingly, or recklessly with respect thereto.
(4) When the law defining an offense prescribes the kind of culpability that is
sufficient for the commission of an offense, without distinguishing among the material
elements thereof, such provision shall apply to all the material elements of the offense,
unless a contrary purpose plainly appears.
(9) Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law
determining the elements of an offense is an element of such offense, unless the
definition of the offense or the Code so provides.
The MPC requires an element analysis and each statute may define the culpability required for
each element of the offense.
All offenses are defined by designating one of these four levels of culpability as to each
objective element. If the objective elements of an offense require that the actor take the
property of another, the culpability elements may require that the actor know that he is taking
property and that he be at least reckless as to it being someone else’s property.
Four levels of culpability under the Code (result used here to describe)
a. A person acts purposely with respect to a result if his or her conscious object is
to cause such a result.
b. Requires the criminal have a particular motive; difficult to prove.
a. A person act knowingly if he is practically certain that the conduct will cause the
b. Differs from purpose in that it does not require the actor to have a positive desire
to cause a result.
a. Acted while consciously disregarding a substantial risk.
b. Differs from knowing in the degree of risk involved of which the actor is
aware—practically certain v. substantial risk.
a. A person acts negligently if they are unaware of a substantial risk but should
have been aware of it.
5. Strict liability
a. Liability imposed without regard to a culpability level. SL does not constitute a
fifth category under the MPC, rather it is the imposition of liability regardless of
Application of MPC culpability elements
1. Purpose as independent of likelihood
a. Purposeful culpability pays no attention to the likelihood of the result. Trying to
cause the harm is more condemnable than acting with the belief that the harm
will or might result without desiring it. Reckless conduct can be elevated to
purposeful conduct if the actor hopes that the risk will come to fruition.
2. Willful blindness and knowing
a. Most CL courts and modern codes make clear that an actor’s deliberate
blindness to a fact does not protect him from being treated as knowing that fact.
b. MPC 2.02(7) states: When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person is aware of a
high probability of its existence, unless he actually believes that it does not exist.
c. Thus, knowing is inferred if the actor chooses to disregard a high probability
that a circumstance exists.
3. Recklessness v. negligence
a. The distinction lies in the actor’s awareness of the risk. A person who acts
purposely, knowingly, or recklessly is aware of the circumstances that make his
conduct criminal or is aware that harmful consequences may result and is
therefore both blameworthy and deterrable. A D who acts negligently though is
unaware of the circumstance or consequences and therefore is neither
blameworthy nor deterrable.
4. Negligence more
a. Under MPC 2.02(d) the actor is negligent as to the result if the failure involves a
gross deviation from the standard of care that a reasonable person would observe
in the actor’s situation.
1. When an offense definition requires a particular level of culpability as to a particular
element, it means that the required culpability as to the element must exist at the time of
the conduct constituting the offense.
2. The concurrence requirement applies to the time of the offense conduct, not to the time
of the result. It is neither necessary nor sufficient that the culpability exists at the later
time of the result of the conduct. Changing one’s mind after setting a bomb does not
bar liability for deaths caused by the blast, even if the intent to kill no longer exists at
the time the bomb explodes or the victims die.
a. The required concurrence between act and culpability is implicit in the MPC
definitions in 2.02(2).
a. Section 20. To constitute crime, there must be unity of act and intent.
i. In every crime or public offense there must exist a union, or joint
operation of act and intent, or criminal negligence.
MPC commentary 2.02, applying culpability requirements
1. 2.02(3) states that unless the kind of culpability sufficient to establish a material
element of an offense has been prescribed by law, it is established if a person acted
purposely, knowingly, or recklessly with respect there to. This accepts the basic norm
what usually is regarded as the CL position.
a. Negligence is excluded as a basis unless explicitly prescribed.
2. 2.02(4) The code takes the position that if a particular kind of culpability has been
articulated at all as sufficient with respect to any element of the offense, the assumption
is that it was meant to apply to all material elements.
3. 2.02(5) provides that where a lower level of culpability is sufficient, a higher level is
also sufficient. Thus, it is only necessary to articulate the minimal basis of liability in
drafting specific offenses for the more serious bases to be implied.
4. 2.02(6) provides that purpose is satisfied when purpose is conditional, unless the
condition negatives the harm or evil sought by the law. (a burglary is still a burglary
even if the burglar only intended to steal if no one was home).
5. 2.02(9) provides that knowledge of the existence, meaning, or application of the law is
not an element of the offense.
d. Morissette v. US (SCOTUS)
Supreme court held that D was innocent because the theft statute did not require an intention to
exercise control over property not your own, but that the D know that the property had not been
abandoned by the owner.
Legislation regarding public welfare offenses as a matter of policy does not specify intent as a
necessary element of the offense, because there are some forms of conduct and results that we
want to minimize simply for happening.
This court though declined to delineate a precise line or set forth comprehensive criteria for
distinguishing between crimes that require a mental element and crimes that do not.
e. California and Culpability
People v. Stuart
1. CPC Section 20. In every crime or public offense there must exist a union or joint
operation of act and intent or criminal negligence.
a. See CPC Section 7(1-5) for culpability definitions.
b. CPC 20 makes the union of act and intent or criminal negligence an invariable
element of every crime unless it is excluded expressly or by necessary
implication. Thus it really is presumed that there must be at least negligence,
unless case law and the statutory history say otherwise (such as statutory rape
which is SL).
c. The court held that the phrase “unlawful act” was included within Section 20
and that “without due caution and circumspect” in 192 (manslaughter) was the
equivalent of criminal negligence.
d. Public welfare statutes are not generally governed by section 20 and call for
sanctions imposed even though the acts are committed without intent or
f. Intro to Mistake Defenses
Mistake evidence is relevant if it is logically related to an offense culpability requirement.
General Mistake Defenses
1. Mistaken self defense or defense of others are examples.
A mistaken belief that one is committing an offense frequently is punished as an attempt to
commit an offense.
Mistake at Common Law
1. The common law did not recognize a defense of mistake negating an offense element.
Rather than seeing mistake defenses as logical corollaries of culpability requirements,
courts conceived of mistake defenses as independent doctrines.
2. In the courts’ view, mistakes concerned independent matters of exculpation and
therefore like other defenses, could be created and refined by the courts.
3. Mistake and General v. Specific Intent Offenses
a. Eventually courts defined the mistake defense in terms of the culpability
requirements of the offense, in an offense analysis form: an honest mistake
provided a defense to a specific intent crime; only a reasonable mistake provided
a defense to a general intent offense; no mistake could provide a defense to an
offense of SL.
g. Mistake and the MPC
MPC 2.02(9) says that culpability as to the unlawfulness of one’s conduct is never to be read in
or assumed to be an element, it must be explicitly provided by the offense definition.
Ignorance or mistake as to a matter of fact or law is a defense if the ignorance or
mistake negatives the purpose, knowledge, belief, recklessness or negligence required
to establish a material element of the offense.
Sometimes called the rule of logical relevance, they are just saying that mistake is a defense if
it negates a required culpability requirement.
Negligence and Reckless mistakes
1. In modern codes, a negligent mistake occurs when an actor is unaware of a substantial
risk that the required circumstance exists and a reasonable person would have been
aware. A reckless mistake occurs when an actor is aware of a substantial risk that the
required circumstance exists, but consciously disregards this risk.
a. Where recklessness is required, the D will have a defense if his mistake is
reasonable or only negligent.
b. If the mistake were a negligent one then by definition he would not have been
aware of his mistake and could not have consciously disregarded a substantial
a. A reasonable mistake will negate negligence. While a negligent mistake will
negate recklessness, a reckless mistake will not negate negligence. If the actor
consciously disregards the substantial risk of making a mistake, she cannot
claim to have been unaware of her mistake.
a. Where no culpability is required, no mistake will negate it.
1. Culpability Requirement 2. In MPC, negated by
Purposely any mistake
Knowingly Any mistake(reckless, negligent, or
Recklessly A negligent or faultless mistake
Negligently A faultless mistake
SL No negation
Under the model penal code, rape requires at least recklessness; a negligent mistake or a reasonable mistake is
a defense if it negates recklessness.
h. Mistake of Law
1. At CL, mistake or ignorance as to a matter of fact might have provided a defense, but
mistake or ignorance as to a matter of law did not. All persons were presumed to know
i. Mistake and the CPC
CPC Section 26(3)
1. All persons who are capable of committing crimes except those belonging to the
following classes: (3): persons who committed the act or made the omission charged
under an ignorance or mistake of fact, which disproves any criminal intent.
People v. Olsen
1. Statutory rape in CA
a. Is mistake a defense?
i. It depends what statute you'd be charged under
ii. Under 261 it is a defense
iii. Under 288 even a reasonable mistake is not a defense; since there's a
lower age range under 288, the legislature intended strict liability
because of the policy behind the rationale
2. The court found the Ds guilty of 288(a) rejecting defense's argument that a good faith
belief as to the age of the victim was a defense to the charge
3. In Hernandez, the court held that an accused's good faith reasonable belief that a victim
was 18 or over was a defense to a charge of statutory rape
4. In Lopez, the court did not extend the defense to a charge of selling marijuana to a
minor, holding that selling marijuana is criminal regardless of age, the age just
enhanced the penalty.
5. There is a strong public policy to protect young children which is why 288 was enacted.
a. The legislature enacted 1203.66 renders certain people who honestly believe the
victim was 14 or older to be eligible for probation
b. To recognize a defense to 288 would render 1203.66 a nullity since the question
of probation for individuals who had an honest belief would never arise.
c. Those who commit sexual offenses on a minor under 14 are punished more
harshly than those who do so under 18
6. This is a good example of a court examining its CL to examine the legislative history
and statutory history to determine that 288(a) is an SL offense.
j. Modern Codes
A mistake of law provides a defense under modern codes if it negates a required culpability
element. But in practice, this does not often occur because most circumstance elements
concern factual rather than legal matters.
Under modern codes, the fact-law distinction is irrelevant and such categorization issues are
avoided. Any mistake, fact or law, will provide a defense if it negates an offense element.
VIII. Introduction to Doctrinal Functions
Criminal law doctrines integrate three important functions in order to allow for criminal law to
operate: rule articulation, assigning liability, and liability grading
b. Rule articulation
It must define the conduct that is prohibited or required by the criminal law
c. Assigning liability
Once a violation occurs, criminal law must decide whether the violation is sufficiently
blameworthy to merit criminal liability.
d. Liability grading
Where liability is to be imposed, criminal law must assess the relative seriousness of the
violation and the blameworthiness of the offender in order to determine the general range of
e. Rule Articulation
The law not only prohibits some conduct, but also requires some
Secondary violations are not independent prohibitions but rather prohibitions defined by
reference to the primary rules.
To describe the minimum requirements of prohibited conduct, the defintion of a criminal
attempt must include a state of mind requirement
(justification defenses) the law recognizes that in some instances a greater harm can be avoided
by allowing a person to violate a prohibition
f. Confusion in Rules of Conduct
Often, neither existing statements of the law nor our process of public adjudication effectively
communicates the rules that define lawful conduct
g. Doctrines of Liability
If the actor's conduct is blameless, liability should not be imposed, even though the actor may
well have caused the harm or evil described by the rules of conduct.
The minimum requirements of blameworthiness are set by such doctrines as the voluntariness
requirement in commission offenses, the capacity requirement for omission liability, and the
requirement in possession offenses that the actor know of the possession for a period of time
sufficient to terminate possession.
h. Doctrines of Grading
The rule articulation doctrines contain many of the most important factors in assessing the
degree of punishment an actor deserves for they define the harm or evil of the offense
Assessing the seriousness of the offense requires an assessment of the relative value of the
interests protected by the law
Culpability greater than the minimum required for liability frequently increases the actor's
It is an actor's conduct, not the conduct's results that the criminal law prohibits, it is only the
actor's conduct that the law can influence
Result elements like culpability elements can serve to aggravate an actor's blameworthiness
i. Cumulative Nature of Functions
The doctrines of liability are part of the grading function because they define the requirements
for minimum grade
A complete description of the doctrines of liability requires reference the doctrines serving the
rule articulation function
j. Failure to distinguish between functions
The failure of courts to communicate laws comes partly from the ambiguity in acquittals and
An acquittal does not tell us if the actor was not guilty under the law or was guilty but had a
Acquittals at public trials frequently only serve to create ambiguity as well
IX. Homicide: Doctrines of Aggravation
a. General Statutes for Homicide
1. Section 210.1 Criminal Homicide
1. A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or
negligently causes the death of another human being.
2. Criminal homicide is murder, manslaughter or negligent homicide.
2. Section 210.2. Murder
1. Criminal homicide constitutes murder when
1. (a) it is committed purposely or knowingly.
b. It is committed recklessly under circumstances manifesting extreme indifference
to the value of human life. Such recklessness and indifference are presumed if the
actor is engaged or is an accomplice in the commission of, or an attempt to
commit, or flight after committing or attempting to commit robbery, rape,..or
2. Murder is a felony of the first degree.
o Section 2.02. General Requirement of Culpability
(2)(c): a person acts recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor's conduct
and the circumstances known to him, its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe in the actor's
Objective: under extreme indifference to the value of human life
o Model Penal Code Section 210.2. Commentary
Recklessness presupposes an awareness of the creation of substantial homicidal
risk, a risk too great to be deemed justifiable by any valid purpose that the actor's
conduct serves. The difference between culpable homicide and murder was
described as turning upon the degree of risk to human life: if death is a likely
result, it is culpable homicide; if it is the most probably result, it is murder.
3. Section 210.3. Manslaughter
1. Criminal homicide constitutes manslaughter when
a. It is committed recklessly or
2. Manslaughter is a felony of the second degree.
o Section 2.02. General Requirement of Culpability
(2)(c): a person acts recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor's conduct
and the circumstances known to him, its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe in the actor's
4. Section 210.4. Negligent Homicide
1. Criminal homicide constitutes negligent homicide when it is committed negligently
2. Negligently homicide is a felony of the third degree.
Section 2.02. General Requirements of Culpability
(d) Negligently. A person acts negligently with respect to a material element of an
offense when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of such a
nature and degree that the actor's failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person would observe in the
Aggravating reckless manslaughter to murder--MPC
1. MPC Commentary 210.2, Reckless to Homicide manifesting Extreme Indifference
1. 210.2(1)(b) provides that criminal homicide constitutes murder when it is
committed recklessly under circumstances manifesting extreme indifference to
the value of human life.
2. Recklessness presupposes an awareness of the creation of substantial homicidal
risk, risk too great to be deemed justifiable by any valid purpose that the actor’s
3. There really is no clear formula to differentiate between ordinary recklessness
and reckless under extreme indifference, it generally is a question for the court.
2. MPC 210.2 Commentary Felony-Murder
1. Section 210.2 advances a new approach to the problem of homicide occurring in
the course of a felony.
1. (1)(b) creates a presumption of the required recklessness and extreme
indifference if the homicide occurs during the commission or attempted
commission of a robbery, sexual attack, arson, burglary, kidnapping, or
2. The presumption can be rebutted by the defendant or not followed by the jury.
3. The classic formulation of the felony-murder doctrine declares that one is guilty
of murder if a death results from conduct during the commission or attempted
commission of a felony. The MPC qualifies this rule with a presumption and a
list of felonies.
Section 187. Murder Defined (2nd degree based on implied malice)
Murder is the unlawful killing of a human being with malice aforethought.
Section 188. Malice defined
Such malice may be expressed or implied. It is express when there is manifested a
deliberate intention unlawfully to take away the life of a fellow creature. It is implied,
when no considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.
People v. Knoller: "implied malice"
A conviction for murder based on a theory of implied malice, requires proof that a
defendant acted with conscious disregard of the danger to human life.
Malice is implied when the killing is proximately caused by an act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.
Section 189. Degrees of Murder
Willful, deliberate, and premeditated killing is first degree.
All other kinds of murder are of the second degree.
Culpability: implied malice from Knoller
Objective: killing of a human being
Section 189.5. Burden of showing mitigation in homicide cases
a. Upon a trial for murder, the commission of the homicide by the defendant being proved, the
burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the
defendant, unless the proof on the part of the prosecution tends to show that the crime
committed only amounts to manslaughter, or that the defendant was justifiable or excusable.
Section 190. Punishment for Murder
a. Every person guilty of murder in the second degree shall be punished by imprisonment in the
state prison for a term of 15 years to life.
5. Section 192. Manslaughter
b. Involuntary--in the commission of an unlawful act which might produce death, in an unlawful
manner, or without due caution and circumspection. (negligence)
1. People v. Stuart
1. The court held that the phrase “unlawful act” was included within Section 20
and that “without due caution and circumspect” in 192 (manslaughter) was the
equivalent of criminal negligence.
Section 7(2): Negligence imports a want of such attention to the nature or probable
consequences of the act or omission as a prudent man ordinarily bestows in acting in his own
6. Section 193. Punishment for manslaughter
b. Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or
c. People v. Knoller (CA) (Implied malice test)
1. Malice is implied when the killing is proximately caused by an act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with conscious disregard for life.
1. A D must be aware of the risk of death to another.
d. People v. Billa (Felony-Murder Rule)
1. Under Section 189, all murder which is committed in the perpetration of, or attempt to
perpetrate, certain felonies, is murder of the first degree.
2. This felony-murder rule covers a variety of unintended homicide resulting from reckless
behavior or ordinary negligence or pure accident.
3. The rule does not apply where someone other than a robber, such as the police or a victim does
4. To be guilty for a killing attributable to the act of an accomplice, the accomplice must cause the
death of another human being by an act committed in furtherance of the common design.
5. The rule does not apply when a third person does the killing.
7. Mayes v. People (Illinois)
b. When an action, unlawful in itself is done with deliberation, and with intention of mischief or great
bodily harm, and death ensues, it is murder. Illinois follows the common law rule: malice shall be
implied when no considerable provocation appears, or when all the circumstances of the killing show
an abandoned and malignant heart.
X. Death Penalty
a. Overview of the Death Penalty
Currently 38 states including the federal government, and the US military allow for the use of
the death penalty.
b. Supreme Court Cases
Gregg v. Georgia
1. Punishments must not be excessive: this inquiry has two aspects:
a. First, the punishment must not involve the unnecessary and wanton infliction of
b. Second, the punishment must not be grossly out of proportion to the severity of
c. The Death penalty is not a form of punishment that can never be imposed, but
because of the uniqueness of the penalty; Furman held that it could not be
imposed under sentencing procedures that created a substantial risk that it would
be inflicted in an arbitrary and capricious manner.
2. That the penalty not be imposed arbitrarily can best be met by a bifurcated procedure .
Furman v. Georgia
a. The 8th amendment was created to ensure that legislatures write laws that are
evenhanded, and nonarbitrary
i. A law which in view reaches that result (discriminatory) has no more
sanctity than a law which in terms provides the same.
a. When a country of over 200 million people inflicts an unusually severe
punishment no more than 50 times a year, the inference is strong that the
punishment is not being regularly and fairly applied. To dispel it would require
a clear showing of nonarbitrary infliction
a. Here, these death sentences are cruel and unusual in the same way that being
struck by lightning is cruel and unusual
i. If any basis can be discerned for the selection of these few to be
sentenced to die, it is the constitutionally impermissible basis of race.
1. The DP is an excessive and unnecessary punishment that violates the 8th
i. It is also morally unacceptable
ii. Capital punishment is imposed discrimanatorily against certain identifiable
classes of people; there is evidence that the innocent have been executed
a. The 8th amendment bans certain types of punishments, it is not there to channel
the sentencing process
b. It is more likely that mandatory sentences are discriminatory than is a jury
i. The infrequency of the DP imposed by juries shows their reservations of
Maynard v. Cartwright
1. to say something is especially heinous merely suggests to the jurors that they should
determine that the murder is more than just heinous and an ordinary person could
honestly believe that every unjustified, intentional taking of human life is especially
Callins v. Collins
1. States did try to create fair systems by implementing automatic death sentences or
using aggravating and mitigating factors
a. But none of this worked
b. Mandatory sentences
i. American standards of decency could not tolerate a capital sentencing
process that failed to afford a D individualized consideration in the
determination whether he or she should live or die
ii. Although restraints on discretion are necessary, discretion is also
necessary to ensure mercy is given
2. The power to consider mitigating evidence that would warrant a sentence less than
death is meaningless unless the sentencer has the discretion and authority to dispense
mercy based on that evidence
Section 210.6. Sentence of Death for Murder;
1. Death sentence excluded. When a D is found guilty of murder, the court shall impose sentence for a
felony of the first degree if it is satisfied that:
a. None of the aggravating circumstances enumerated in Subsection (3) of this section was
established by the evidence at the trial or will be established if further proceedings are initiated
under (2) of this Section or
b. Substantial mitigating circumstances, established by the evidence at the trial, call for leniency or
c. The D, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty
to murder as a felony of the first degree
d. The D was under 18 at the time or
e. The Ds physical or mental condition calls for leniency or
f. Although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting
the Ds guilt.
2. Unless the Court imposes sentence under (1) of this Section, it shall conduct a separate proceeding to
determine whether the D should be sentenced for a felony of the first degree or sentenced to death.
The proceeding shall be conducted before the Court alone if the D was convicted by a Court sitting
without a jury or upon his plea of guilty or if the prosecuting attorney and the D waive a jury with
respect to sentence. In other cases it shall be conducted before the court sitting with the jury which
determined the Ds guilty or if the Court for good cause shown discharges the jury, with a new jury
empaneled for the purpose.
In the proceedings, evidence may be presented as to any matter that the Court deems relevant to
sentence, including the nature of the crime, the Ds character, background, history, mental and physical
condition, and any of the aggravating or mitigating circumstances in (3) and (4).
The determination whether sentence of death shall be imposed shall be in the discretion of the court,
except that when the proceeding is conducted before the Court sitting with a jury, the Court shall not
impose sentence of death unless it submits to the jury the issue whether the D shall be sentenced to
death or to imprisonment and the jury returns a verdict that the sentence should be death. If the jury is
unable to reach a verdict, the Court shall dismiss the jury and impose a sentence for a felony of the first
The court shall take into account the aggravating and mitigating circumstances, but it shall not impose
death unless it finds one of the aggravating circumstances and no mitigating circumstances.
Alternative Formulation of (2)
Unless the court imposes sentence under (1) it shall conduct a separate proceeding to determine
whether the D should be sentenced for a felony of the first degree or to death…the determination as to
whether sentence of death shall be imposed shall be in the discretion of the court. In exercising such
discretion, the Court shall take into account the aggravating and mitigating circumstances enumerated
in (3) and (4) and shall not impose sentence of death unless it finds one of the aggravating
circumstances in (3) and no mitigating circumstances
3. Aggravating circumstances
a) The murder was committed by a convict under sentence of imprisonment
b) The D was previously convicted of another murder or of a felony involving the use or threat of
violence to the person.
c) At the time the murder was committed the D also committed another murder
d) The D knowingly created a great risk of death to many persons
e) The murder was committed while the D was engaged or was an accomplice in the commission
of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or
deviate sexual intercourse by force, arson, burglary or kidnapping.
f) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(Maynard says this is unconstitutional)
a) Maynard says this is unconstitutional.
4. Mitigating Circumstances
a. The murder was committed while the D was under the influence of extreme mental or
b. The murder was committed while the D was under the influence of extreme mental or
c. The victim was a participant in Ds homicidal conduct or consented to the homicidal act
d. The murder was committed under circumstances which the defendant believed to provide a
justification for his conduct
e. The D was an accomplice in a murder committed by another person and his participation in the
homicidal act was relatively minor.
f. The D acted under duress or under the domination of another person
g. At the time of the murder the capacity of the D to appreciate the criminality of his conduct was
impaired as a result of…intoxication.
h. The youth of the D at the time of the crime.
Death Sentence Procedures
1. Section 190.1. Procedure in case involving death penalty
A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate
phases as follows:
a. The question of the Ds guilt shall be first determined. If the trier of fact finds the defendant
guilty of first degree murder, it shall at the same time determine the truth of all special
circumstances charges as enumerated in 190.2….
2. Section 190.2. Penalty on finding special circumstances
a. The penalty for a defendant who is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the possibility of parole if one or more of the
following special circumstances has been found under 190.4 to be true:
14. The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity.
As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily
torturous to the victim.
16. The victim was intentionally killed because of his or her race, color, religion, nationality, or
country of origin.
17. The murder was committed while the defendant was engaged in, or was an accomplice in,
the commission of, attempted commission of, or the immediate flight after committing, or
attempting to commit, the following felonies:
B. Kidnapping in violation of Section 207, 209, or 209.5.
J. Mayhem in violation of Section 203.
M. To prove the special circumstances of kidnapping, if there is specific intent to kill, it is
only required that there be proof of the elements of those felonies. If so established,
those two special circumstances are proven even if the felony of kidnapping or arson
is committed primarily or solely for the purpose of facilitating the murder.
18. The murder was intentional and involved the infliction of torture.
b. Unless an intent to kill is specifically required under (a) for a special circumstance enumerated
therein, an actual killer, as to whom the special circumstance has been found to be true under
Section 190.4, need not have had any intent to kill at the time of the special circumstance in order
to suffer death or confinement in the state prison for life without the possibility of parole.
c. Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands,
induces, solicits, requests, or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for life without the possibility of
parole if one or more of the special circumstances enumerated in (a) has been found to be true
3. Section 190.3. Determination as to Penalty of Death or life imprisonment
If the defendant has been found guilty of murder in the first degree, and a special circumstance has
been charged and found to be true, the trier of fact shall determine whether the penalty shall be death
or confinement in state prison for a term of life without the possibility of parole. In the proceedings on
the question of penalty, evidence may be presented by both the people and the defendant as to any
matter relevant to aggravation, mitigation, and sentence including the nature and circumstances of the
present offense, any prior felony convictions or convictions whether or not such convictions involved a
crime of violence, the presence or absence of any criminal acitivty by the defendant which involved
the use of force…and the defendant's character, background, history, mental condition and physical
In determining the penalty the trier of fact shall consider:
a. The circumstances of the crime of which the defendant was convicted in the present proceeding
and the existence of any special circumstance found to be true pursuant to 190.1.
b. The presence or absence of criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied threat to use force or violence.
c. The presence or absence of any prior felony conviction.
d. Whether or not the offense was committed while the D was under the influence of extreme
mental or emotional disturbance.
g. Whether or not the defendant acted under extreme duress or under the substantial domination of
h. Whether or not at the time of the offense the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was impaired as a
j. Whether or not the defendant was an accomplice to the offense and his participation in the
commission of the offense was relatively minor.
The trier of fact shall take into account and be guided by the aggravating and mitigating circumstances
and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances
outweigh the mitigating circumstances. If the mitigating circumstances outweigh the aggravating
circumstances, the trier of fact shall impose a sentence of confinement in a state prison for a term of
life without the possibility of parole.
4. Section 190.4. Special finding on truth of each alleged special circumstance.
a. Whenever special circumstances are alleged and the trier of fact finds the defendant guilty of first
degree murder, the trier of fact shall also make a special finding of truth of each alleged special
In case of a reasonable doubt as to whether a special circumstance is true, the defendant is
entitled to a finding that is not true. The trier of fact shall make a special finding that each
special circumstance is either true or not true.
c. If the trier of fact which convicted the defendant of crime was a jury, the same jury shall
consider any plea of not guilty by reason of insanity, the truth of any special circumstances which
may be alleged, and the penalty to be applied, unless for good cause the court discharges that jury
in which case a new jury shall be drawn.
Furman v. Georgia
1. The DP cannot be arbitrarily applied and cannot involve too much discretion.
Maynard v. Cartwright
1. The court said the words, heinous, atrocious and cruel did not offer sufficient
guidance to the jury to escape the strictures of Furman v. Georgia.
2. To say something is especially heinous merely suggests to the jurors that they
should determine that the murder is more than just heinous and an ordinary
person could honestly believe that every unjustified, intentional taking of
human life is especially heinous.
1. Supports the idea that the DP is discriminatory that you are more likely to be
set to death if you are a black person killing a white person. Scalia agreed that
there is an inconsistency, but that the problem is regulating the death penalty.
Furman started this problem by trying to regulate the DP, we already had
grand jury indictments so that lack of due process was not a problem.
XI. Homicide: Doctrines of Mitigation
a. Provocation at CL
Provocation at CL mitigated an intentional murder to manslaughter. The CL:
1. Before sufficient time has elapsed to calm down, so that the intentional killing is the
result of temporary excitement rather than of wickedness of heart or innate recklessness
of disposition, then the law, recognizing the standard of human conduct as that of the
ordinary man, regards the offense as less heinous than deliberate murder. But the actor
loses the mitigation if sufficient time has passed and the person killed must be the one
doing the provoking. Also the provoking incident must have occurred in the presence
of the D. This is an objective reasonable person standard.
b. MPC Mitigation
The MPC gives a broader mitigation than CL provocation.
The MPC allows mitigation from murder to manslaughter where:
1. Murder is committed under the influence of extreme emotional or mental disturbance
for which there is reasonable explanation or excuse. The reasonableness of such
explanation or excuse shall be determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believes them to be. 210.3(1)(b)
This mitigation has two components
1. The killing must have in fact been committed under the influence of extreme emotional
or mental disturbance (subjective)
2. There must be a reasonable explanation for the disturbance (partially individualized
MPC drops the CL rule that bars mitigation if the killing occurs some period of time after the
1. Does not limit to cases where the actor kills the source of the provocation
Partially individualized objective standard
1. The MPC uses an objective standard, but is partially individualized through the
requirement that the reasonableness of the explanation or excuse is to be determined
under the circumstances as the actor believes them to be and from the viewpoint of a
person in the actor’s situation.
a. The court will place the reasonable person in the position of the D with the
belief, circumstances, and characteristics of the D.
1. The MPCs mitigation of extreme mental disturbance operates in this way.
People v. Steel
1. Under 192(a) for voluntary manslaughter to be mitigated from murder, provocation and
heat of passion must be affirmatively demonstrated.
2. The heat of passion requirement has an objective and a subjective component.
a. The D must actually, subjectively kill under the heat of passion.
b. This heat of passion must be such a passion as would naturally be aroused in the
mind of an ordinarily reasonable person under the given facts and
circumstances, because no D may set up his own standard of conduct.
Circumstances are viewed objectively.
3. Provocation also must be from the victim
4. Evidence of the Ds extraordinary character and environmental deficiencies is irrelevant
to the jury.
1. Section 192. Manslaughter
Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
a. Voluntary--upon a sudden quarrel or heat of passion
4. Defenses: Provocation
People v. Steel (reducing murder to manslaughter)
To reduce murder to manslaughter, the heat of passion must be such a passion as naturally would be
aroused in the mind of an ordinarily reasonable person in the same circumstances. A D is not
permitted to set up his own standards of conduct.
People v. Steel: since implied malice is based on "where no considerable provocation appears," then in
order for a provocation to be sufficient enough to negate malice, it must be judged objectively. (p.25)
To satisfy the objective, reasonable person requirement, there must be provocation by the victim.
People v. Steel:
o evidence of sufficient provocation under 188 will overcome the presumption of malice.
o For voluntary manslaughter, provocation and heat of passion must be affirmatively demonstrated
o this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances, because no D may set up his own standard of
The heat of passion requirement for manslaughter has both an objective and a subjective component:
1. Subjective: the D must actually kill under the heat of passion
This can be conceded because he was under a heat of passion due to the provocation of the men at
2. Objective: this heat of passion must be such a passion as would naturally be aroused in the mind of an
ordinarily reasonable person under the given facts and circumstances…which requires provocation by the
o Here, taunting by some guys at a coffeehouse would not drive an ordinarily reasonable person to kill
someone who is not a party to the taunting
o People v. Steel: the reasonable person requirement requires provocation by the victim
o Since the victim was not doing the provoking, then this would fail
o Although Gounigas was actually driven to a heat of passion because of his anger, depression, and the
taunting, this still fails because the provocation was not done by the victim
3. Section 25. Diminished Capacity
a. The defense of diminished capacity is abolished. In a criminal action, as well as any juvenile proceeding,
evidence concerning an accused person's intoxication, trauma, mental illness, disease, or defect, shall not
be admissible to show or negate capacity to form the particular purpose, intent, motive, malice,
knowledge, or other mental state required for the commission of the crime.
b. In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall
be found by the trier of fact only when the accused person proves by a preponderence of the evidence that
he or she was incapable of knowing or understanding the nature and quality of his or her act and of
distinguishing right from wrong at the time of the commission of the offense.
c. Evidence of diminished capacity can only be considered at the time of sentencing.
3. Section 25.5. Insanity Plea
In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall
not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure
disorder, or an addiction to, or abuse of intoxicating substances.
4. Section 28. Evidence of mental disease
a. Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the
capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental
disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused
actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought,
when a specific intent crime is charged.
b. As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or
irrestible impulse in a criminal action.
o People v. Steel: the legislature abolished the defense of diminished capacity, but diminished
actuality survives. The jury can consider evidence of mental condition in deciding whether D had
the required mental state.
Mental Illness Negating Offense Element—Survey: American jurisdictions take a variety of positions on the
admission of mental disease or defect evidence that negates a required offense mental element. About 40% of
the jurisdictions, those with modern codes, admit any evidence of mental disease or defect that is relevant to
negate any culpable state of mind offense element. Another 30% allow such evidence to be admitted but limit
it to negating only specific intent crimes, or to negate only the malice or premeditation requirements in murder
prosecutions. The last 30% exclude the admission of mental illness evidence to negate any offense element.
US v. Brawner (DC Circuit)
d. Mental condition, though insufficient to exonerate, may be relevant to specific mental elements of
certain crimes or degrees of crimes.
e. Abnormal mental condition may be presented as evidence to negate a specific mental state required for
a particular crime or degree of crime, even though it is not enough to exonerate.
a. Causation inherent in result elements
Whenever an offense definition includes a result element, such as homicide requiring a death, a
causation requirement is also implied. A result ought to affect an actor’s liability only if it is a
result for which the actor is causally accountable.
b. Requirements of Causation: Factual and Proximate
c. Factual Causation
There are two independent requirements to establish causation: a but for cause and proximate
Conduct is a factual cause of a result if the result would not have occurred but for the conduct.
The conduct is a factual cause if it was necessary for the result to occur. Would the result still
have occurred when it did? If not, then the actor’s conduct was a but for cause of the result.
MPC-2.03(a) (but-for causation)
1. The conduct must be an antecedent but for which the result in question would not have
d. Proximate causation
MPC 2.03. Causation
(2) when purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose or the contemplation of
the actor unless:
(b) the actual result involves the same kind of injury or harm as that designed or contemplated
and is not too remote or accidental in its occurrence to have a just bearing on the actor’s
liability or on the gravity of his offense.
(3) when recklessly or negligently causing a particular result is an element of the offense, the
element is not established if the actual result is not within the risk of which the actor is aware or
in the case of negligence, should have been aware, unless
(b) the actual result involves the same kind of injury or harm as the probable result and is not
too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the
gravity of his offense.
The strength and nature of the causal connection between the conduct and the result must be
sufficient. The resulting harm must not be too remote or accidental in its occurrence to have a
just bearing on the actor’s liability or on the gravity of his offense. Deciding whether a result is
too remote or accidental calls for an exercise of intuitive judgment.
1. People v. Acosta
a. The court held liable a D for murder when two police helicopters collided.
2. The foreseeability of the general manner in which the result came about is relevant, but
not every aspect of the way in which the result occurs need be foreseen.
3. The court is not saying that its probable, but its saying that natural and probable is
shorthand for a legally unacceptable risk
e. Causing Another to Cause Reuslt
One actor causing another to cause the prohibited result, is a common and special case of
causation. The potential for a remoteness problem appears in part because the presence of the
second actor seems to remove the first actor farther from the result. It is further exacerbated
by the fact that the intermediate link is a human agent capable of independent volitional
conduct. One cannot cause another to act in the same way he can cause a chain of events that
are governed by the laws of physics.
f. Intervening Actor’s volition breaks chain
One person cannot cause another to act in the same way that a person can cause a chain events
that are governed by the laws of physics.
An intervening actor may relieve the other from liability, but only where the potential for
independence is sufficiently realized.
1. People v. Campbell
a. Held no proximate cause even though D gave victim a gun and encouraged him
to shoot himself because the victim made a volitional choice to act.
But Causing Independent Actor’s Actions Will Not Exculpate
1. An intervening actor’s potential to act independently does not itself insulate the first
actor from causal accountability for the result. The potential for independence must be
2. State v. Lasiter
a. D was liable for beating a woman so badly that she jumped out of a window to
3. Stephenson v. State
a. D held liable for murder for sexually torturing a woman and keeping her locked
up so badly that she eventually killed herself.
4. People v. Kibbe
a. D held liable for leaving victim in the road even after another person ran him
over and killed him.
5. There is a continuum of voluntariness, and in each case the decision maker must
determine whether the intervening actor’s choice reaches that point on the continuum
that extinguishes the primary actor’s causal accountability for the result.
To avoid problems such as this, charge complicity if possible.
People v. Sanchez
1. Proximate Cause:
a. A cause of death is an act that sets in motion a chain of events that produces as a
direct, natural, and probable consequence of the act, the death of a human being,
and without which the death would not occur.
2. Concurrent causation
a. When the conduct of two or more persons contributes concurrently as a cause of
the death, the conduct of each is a cause of the death if that conduct was also a
substantial factor contributing to the death.
b. A cause is a concurrent cause if it was operative at the moment of death and
acted with another force to produce the death.
3. Transferred Intent
a. When one unlawfully attempts to kill a certain person but by mistake or
inadvertance kills another person, the crime, if any, so committed is the same as
though the person originally intended to be killed had in fact been killed.
a. Held two Ds were causally responsible for killing victim during a drive by
shooting where both shot, but neither could be proven to be the actual killer.
People v. Cervantes
1. Intervening causes
a. An independent intervening cause will absolve a D of criminal liability
i. In order to be independent, the intervening cause must be unforeseeable;
an extraordinary and abnormal occurrence, which rises to the level of an
exonerating superseding cause
b. A dependent intervening cause will not relieve the D of criminal liability
i. If an intervening cause is a normal and reasonably foreseeable result of
Ds original act, the intervening act is dependent and not a superseding
cause and will not relieve D of liability
ii. The consequence does not have to be a strong probability; a possible
consequence which might reasonably have been contemplated is enough
c. Superseding cause: the free, deliberate, and informed intervention of a second
person who intends to exploit the situation created by the first, but is not acting
in concert with him, is normally held to relieve the first actor of criminal
a. Held no murder where D’s provocative actions were not connected with killer’s
independent act because they were too far apart.
h. Commonwealth v. Root (PA)
To persist to apply the tort liability of proximate cause to prosecutions for criminal homicide
after the marked expansion of civil liability would extend criminal liability to persons
chargeable with unlawful or reckless conduct in circumstances not generally considered to
present the likelihood of a resultant death
XIII. Attempt Liability
a. Different Tests
1. Prevalent at CL, were various proximity tests. They each measured the point of attempt
by the actor’s closeness to commission of the substantive offense. These tests simply
reveal an objectivist view of criminality in general. According to this view, the
gravamen of an offense is its harm or evil.
Res Ipsa Loquitur Test
1. Focuses on the actor’s conduct as a manifestation of the actor’s intent. Preparation
becomes an attempt when an actor’s intention to commit the offense is manifested in his
or her conduct. Probably not a good test though, because it would bar liability even if
evidence of culpability is overwhelming, if that culpability does not show in the actor’s
b. MPC—Substantial Step Test
1. Section 5.01. Criminal Attempt
1. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime, he
a. Purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be or
b. When causing a particular result is an element of the crime, does or omits to do anything
with the purpose of causing or with the belief that it will cause such result without further
conduct on his part or
c. Purposely does or omits to do anything which, under the circumstances as he believes them
to be, is an act or omission constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime
2. Conduct shall not be held to constitute a substantial step under (1)(c) unless it is strongly
corroborative of the actor's criminal purpose. Without negativing the sufficiency of other
conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held
insufficient as a matter of law
a. Lying in wait, searching for or following the contemplated victim of the crime
c. Reconnoitering the place contemplated for the commission of the crime
e. Possession of materials to be employed in the commission of the crime, which are specially
designed for such unlawful use or which can serve no lawful purpose of the actor under the
f. Possession, collection or fabrication of materials to be employed in the commission of the
crime, at or near the place contemplated for its commission, where such possession,
collection, or fabrication serves no lawful purpose of the actor under the circumstances
g. Soliciting an innocent agent to engage in conduct constituting an element of the crime
3. A person who engages in conduct designed to aid another to commit a crime which would
establish his complicity under 2.06 if the crime were committed by such other person, is guilty of
an attempt to commit the crime, although the crime is not committed or attempted by such other
4. Renunciation. When the actor's conduct would otherwise constitute an attempt under (1)(b) or
(1)(c), it is an affirmative defense that he abandoned his effort to commit the crime or otherwise
prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not affect the
liability of an accomplice who did not join in such abandonment or prevention. Within the
meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in
whole or in party, by circumstances not present or apparent at the inception of the actor's course
of conduct, which increase the probability of detection or apprehension or which make more
difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is
motivated by a decision to postpone the criminal conduct until a more advantageous time or to
transfer the criminal effort to another but similar objective or victim.
MPC substantial step test
1. Rather than focusing on how close to the end of the chain the actor has come, this
approach focuses on how far from the pure intention to commit the offense, the actor
2. The MPC adds to this that the actor’s conduct be strongly corroborative of the actor’s
criminal purpose. The actor’s intention need not exclusively show intent, only
corroborate his intent, thus, it is less demanding than the res ipsa test.
3. Under the MPCs subjective view, causing a harm or coming close to doing so is not
required, acting upon an intention to commit an offense is itself sufficient.
(1)(a) is intended to govern cases of impossible attempt, where the offense conduct is complete
and where liability for the substantive offense would be imposed but for the absence of a
required circumstance (the white powder purchased is actually not a drug)
(1)(b) is intended to govern cases where the actor’s conduct constituting the offense is complete
but a required result does not occur (shoot and miss)
(1)(c) governs the cases of interrupted or incomplete conduct toward the substantive offense.
1. The culpability is the most important as the conduct requirements can be met by
conduct that is otherwise lawful.
2. CL Specific Intent Requirement
a. At CL, attempt was said to be a specific intent offense requiring a higher level of
culpable state of mind than a general intent offense.
3. MPC Requirements
4. 5.01(a) requires that the actor be acting with the kind of culpability otherwise required
for commission of the offense, but the purpose and belief requirements in the
subsections suggests that all elements are elevated to purposeful.
a. However, what is required is a showing that it was the actor’s purpose to engage
in all of the conduct required to constitute the substantive offense. It is not
enough that he was thinking about engaging in the conduct. However, it need
not be shown that the actor was purposeful as to every circumstance and result
of the substantive offense. The substantive offense’s culpability requirements as
to these elements will suffice.
Result What is required by the substantive
Circumstance What is required by the substantive
Conduct Purposely engages in and completes
Section 21a. Elements of Attempt
1. An attempt to commit a crime consists of two elements: a specific intent to commit a
crime, and a direct but ineffectual act done towards its commission.
People v. Williams
1. Criminal attempt has always required a specific intent to commit the crime.
2. Assault is a general intent crime only required the general intent to willfully commit an
act the direct, natural and probable consequences of which if successfully completed
would be the injury to another.
People v. Superior Court
1. For an attempt the overt act must go beyond mere preparation and show that the killer is
putting his or her plan into action; it need not be the last proximate or ultimate step
towards the crimes.
a. The preparation consists in devising or arranging the means or measures
necessary for the commission of the offense
a. The attempt is the direct movement toward the commission after the
preparations are made.
4. Slight-Acts Test
a. Whenever the design of a person to commit crime is clearly shown, slight acts in
furtherance of the design will constitute an attempt.
b. The clearer the intent, the less the actual act has to be.
5. Where the crime involves concerted action and hence a greater likelihood that the
criminal objective will be accomplished, there is a greater urgency for intervention by
the state at an earlier stage in the course of conduct.
d. State v. Maestas (Utah)
Held in Utah, attempt is not a specific intent crime but that it only requires the kind of
culpability otherwise required for commission of the completed offense.
a. Legal v. Factual Impossibility
Impossibility at common law was divided into two categories: legal and factual.
A case was a legal impossibility if the D could do everything she wanted to do and her conduct
still did not constitute a crime. A person who buys a white powder believing it to be cocaine
cannot be convicted of the substantive offense if it is nothing. Such legal impossibility
provided a complete defense.
Factual impossibility arose where the actor could not complete the intended conduct or could
not bring about a prohibited result, such as trying to pick an empty pocket. A factual
impossibility is not a defense.
b. At CL, where the missing offense element is a conduct or result element, the case is more likely to be a
factual impossibility, which was not a defense.
If the missing offense element was a circumstance, it was a legal impossibility which was a
c. Impossibility under Objectivist v. Subjectivist View of Criminality
The common law took an objectivist view of criminality and as such it did not concern itself so
much with the actor’s intention, but rather the actual harm or evil threatened. Under an
objectivist view of criminality, the gravamen of all offenses is the actual harm or evil that the
offense conduct suggests. An attempt may cause a danger of completion that disrupts the social
order in a real way. But if the missing element is a required circumstance that exists only in the
actor’s mind (a legally impossible attempt), there may be less likelihood of any real danger of
completion. An actor’s frustrated attempt to engage in the conduct or cause the result required
by the offense—picking an empty pocket—may be more potentially dangerous and more
apparently criminal. Thus, the actors conduct in a missing circumstance case may be less
dangerous than a result or conduct case.
The MPC having adopted a subjectivist view of criminality denies a defense for both legal and
factual impossibility. 5.01(1) holds an actor liable for attempt if he:
1. (a) engages in conduct which would constitute the crime if the attendant circumstances
were as he believes them to be or
2. (b) does or omits to do anything with the belief that it will cause a criminal result and
3. (c) does or omits to do anything which, under the circumstances as he believes them to
be is an act or omission constituting a substantial step toward the offense.
The actor will be held liable for an attempt to commit the offense without regard to whether or
why commission of the offense is impossible.
1. In an imaginary offense, the actor is mistaken in his belief that his intended conduct is
an offense. In such a situation under the MPC a defense to attempt liability is generally
2. Knowledge of the criminality of one’s offense is not itself an element of the offense.
The actor will be held liable for an offense only if the circumstances as the actor
believes them to be are those defined as the circumstance elements of the charged
offense. The actor will not be liable if he only believes that there is a law (but really is
not) that prohibits his actions.
Inherently unlikely attempt
1. 5.05(2) states if the conduct is so unlikely to result in a crime that neither such conduct
or the actor presents a public danger, the court may dismiss or impose judgment of a
a. Conduct and the actor must not pose a danger to the pubic.
e. People v. Rollino (NY)
In this country it is generally held that a D may be charged with an attempt where the crime
was not completed because of a factual impossibility whereas a legal impossibility in the
completion of the crime precludes prosecution for an attempt.
1. Where there is legal impossibility the D will get a defense, but not where there is a
People v. Rizo
1. Abolishes the CL legal/factual impossibility distinction.
2. CA focuses on the elements of the crime and the intent of the D. Where a D has the
requisite criminal intent, but elements of the crime are lacking due to circumstances
unknown to him, he can only be convicted of attempt, and not the substantive crime
3. The impossibility defense only works if a circumstance element is missing.
4. Look at the statute and what is says; if an impossible aspect is not an element of the
statute, then it does not matter.
1. Section 5.03. Criminal Conspiracy
1. A person is guilty of conspiracy with another person or persons to commit the crime if with
the purpose of promoting or facilitating its commission he
a. Agrees with such other person or persons that they or one or more of them will engage
in conduct which constitutes such crime or an attempt or solicitation to commit such
b. Agrees to aid such other person or persons in the planning or commission of such crime
or of an attempt or solicitation to commit such crime
2. If a person guilty of conspiracy as defined by (1) knows that a person with whom he
conspires to commit a crime has conspired with another person or persons to commit the
same crime, he is guilty of conspiring with such other person or persons, whether or not he
knows their identity, to commit such crime.
3. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so
long as such multiple crimes are the object of the same agreement or continuous
5. No person may be convicted of conspiracy to commit a crime, other than a felony of the first
or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to
have been done by him or by a person with whom he conspired
7. Duration of conspiracy
a. A conspiracy is a continuing course of conduct which terminates when the crime or
crimes which are its object are committed or the agreement that they be committed is
abandoned by the defendant and by those with whom he conspired
b. Such abandonment is presumed if neither the D nor anyone with whom he conspired
does any overt act in pursuance of the conspiracy during the applicable period of
c. If an individual abandons the agreement, the conspiracy is terminated as to him only if
and when he advises those with whom he conspired of his abandonment or he informs
the law enforcement authorities of the existence of the conspiracy and of his
3. Section 5.05. Grading of Criminal Attempt, Solicitation and Conspiracy
1. Grading. Attempt, solicitation, and conspiracy are crimes of the same grade and degree as the
most serious offense which is attempted or solicited or is an object of the conspiracy. An
attempt, solicitation or conspiracy to commit a capital crime or a felony of the first degree is
a felony of the second degree.
Book notes: (Culpability for Elements)
o No matter what culpability as to result is required by the substantive offense, a purpose to
cause that result must be shown for conspiracy to commit the offense.
o Conduct must be purposeful as well
o Circumstance: MPC comment 5.03 comment: the drafters intend different treatment of
purpose and circumstance. The conspiracy provision in the code does not attempt to solve
the problem of culpability as to a circumstance by explicit formulation, nor have the recent
Only the culpability that is required for the substantive offense is necessary to be
b. Conspiracy as Inchoate Offense
The MPC treats conspiracy as an inchoate offense.
1. It punishes an actor who intends to commit an offense and externally manifests his
willingness to carry out that intention. The agreement with another to commit an
offense is an externalization of what may have been simply a thought of the actor.
1. Conspiracy typically requires an agreement between two or more conspirators;
speaking, writing, or nodding can signal agreement, but one can also agree through
silence where, under the circumstances, silence is understood as positive agreement.
1. At CL, the agreement required actual agreement on both sides, so a criminal and a cop
could not conspire. This is so because it required that the other actor must actually be
agreeing, not just pretending to agree.
2. An objectivist view would say this is not a conspiracy, but a subjectivist view would say
that it is.
1. Modern codes have adopted a unilateral agreement requirement which permits
conspiracy liability as long as the actor agrees with another person. It does not require
that the co-conspirator actually be agreeing back.
Objectivist v. Subjectivist
1. An objectivist view of criminality would reject liability for an apparent agreement that
never in fact exists. It is only from the subjectivist view of criminality that liability may
be justified for a unilateral agreement.
1. A conduct requirement of an overt act typically is required of one of the conspirators in
furtherance of the agreement.
1. As with attempt, the CL viewed conspiracy as a specific intent offense.
2. Under MPC
i. No matter what culpability as to a result for the substantive offense, a
purpose to cause the result must be shown for conspiracy to commit the
ii. 5.03: the actor must have the purpose of promoting or facilitating the
commission of the offense.
i. The conspiracy provision in the code does not attempt to solve the
problem of culpability as to a circumstance by explicit formulation, not
have the recent legislative revisions.
ii. The better view though would seem to require only the culpability as to
circumstance that is required for the substantive offense.
1. Allows conspiracy to be treated as a form of complicity. The Pinkerton Doctrine holds
that a conspirator is liable for substantive offenses committed by other conspirators in
furtherance of the conspiracy. Only the conspirator committing the offense need satisfy
the elements of the offense.
2. The MPC does not adopt this rule; such complicity liability requires proof of the normal
requirements of complicity including the purpose of promoting or facilitating the
commission of the offense.
Scope and Duration
1. 5.03(2): if a person guilty of conspiracy knows that a person with whom he conspires to
commit a crime has conspired with another person to commit the same crime he is
guilty of conspiring with such other person or persons, whether or not he knows their
8. 5.03(7) Duration of conspiracy
. A conspiracy is a continuing course of conduct which terminates when the crime or
crimes which are its object are committed or the agreement that they be committed is
abandoned by the defendant and by those with whom he conspired
a. Such abandonment is presumed if neither the D nor anyone with whom he conspired
does any overt act in pursuance of the conspiracy during the applicable period of
b. If an individual abandons the agreement, the conspiracy is terminated as to him only if
and when he advises those with whom he conspired of his abandonment or he informs
the law enforcement authorities of the existence of the conspiracy and of his
c. Wharton’s Rule
One cannot be convicted both of conspiracy and a substantive offense, where the substantive
offense itself requires an agreement unless the substantive crime is broader than the conspiracy
5.04(2) It is a defense to a charge of solicitation or conspiracy to commit a crime that if the
criminal object were achieved, the actor would not be guilty of a crime under the law defining
the offense or as an accomplice under 2.06(5).
d. State v. Hardison (NJ)
The law traditionally considered conspiracy and the completed substantive offense to be
separate crimes. Accordingly, the conspiracy to commit an offense and the subsequent
commission of that crime did not merge.
1. Section 182. Criminal Conspiracy; acts constituting; punishment
a. If two or more persons conspire
a. To commit any crime
They are punishable as follows:
When they conspire to commit murder, in which case the punishment shall be that prescribed
for murder in the first degree.
If the felony is conspiracy to commit two or more felonies which have different punishments
and the commission of those felonies constitute but one offense of conspiracy, the penalty
shall be that prescribed for the felony which has the greater maximum term.
All cases of conspiracy may be prosecuted and tried in the superior court of any county in
which any overt act tending to effect the conspiracy shall be done.
1. Section 184. Overt act necessary
No agreement amounts to a conspiracy, unless some act, beside such agreement, be done
within this state to effect the object thereof, by one or more of the parties to such agreement
and the trial of cases of conspiracy may be had in any county in which any such act be done.
What is the length of the conspiracy?
People v. Harper (CAs Pinkerton Doctrine)
1. If several parties conspire or combine together to commit any unlawful act each is
criminally responsible for the acts of his associates or confederates committed in
furtherance of any prosecution of the common design for which they combine.
a. In contemplation of law, the act of one conspirator is the act of all
b. Each is responsible for everything done by his confederates, which follows
incidentally in the execution of the common design as one of its probable
consequences, even though it was not intended as a part of the original design or
c. If in the consummation of an express and unlawful purpose of the conspiracy,
one of the conspirators goes outside of such express purpose and kills, the other
conspirators cannot escape liability where as here, such killing is not an
unreasonable result to be expected from the acts of sabotage and violence which
f. Must be specific intent
XVI. Doctrines of Imputation
a. American criminal law permits the imputation of both objective and culpability elements of an offense.
b. The pinkerton doctrine imputes to a co-conspirator the objective and culpability elements of an offense
committed in furtherance of the conspiracy. The felony-murder rule imputes both elements to an
accomplice in the commission of a felony.
c. When doing imputation crimes, do the underlying crime first when applicable, then do the doctrines of
XVII. Voluntary Intoxication
a. If the actor is involuntarily intoxicated, the actor will have a defense to the culpability requirements of
b. Under the CL, voluntary intoxication was a defense to a specific intent offense, not a general intent
Under the MPC if the intoxication is voluntary, recklessness as to an offense element may be
imputed to an actor if the actor would have been aware of the risk had he or she been sober.
When prosecuting, look for a crime that requires recklessness.
Under the MPC, intoxication is involuntary if it is not self-induced or if it is pathological.
1. 2.08(5)(b) sets a negligence standard as to becoming intoxicated; if the actor knows or
ought to know the substance’s tendency to intoxicate.
The MPC takes an element analysis approach to voluntary intoxication
1. 2.08(1) allows intoxication to be introduced to negate an actor’s purpose or knowledge.
a. 2.08(1): intoxication of the actor is not a defense unless it negatives an element
of the offense.
2. 2.08(2) imputes recklessness when the actor is intoxicated
a. 2.08(2) when recklessness establishes an element of the offense, if the actor, due
to self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial.
Section 22. Evidence of Voluntary Intoxication
a. No act committed by a person while in a state of voluntary intoxication is less criminal by reason
of his or her having been in that condition. Evidence of voluntary intoxication shall not be
admitted to negate the capacity to form any mental states for the crimes charged, including, but not
limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act
b. Evidence of voluntary intoxication is admissible solely on the issue of whether or not the D actually
formed a required specific intent, or when charged with murder, whether the D premeditated,
deliberated, or harbored express malice aforethought.
c. Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of
any intoxicating liquor, drug, or other substance.
Section 25(a) Diminished Capacity
a. The defense of diminished capacity is abolished. In a criminal action, as well as any juvenile court
proceeding, evidence concerning an accused person's intoxication, trauma, mental illness, disease,
or defect shall not be admissible to show or negate capacity to form the particular purpose, intent,
motive, malice, knowledge, or other mental state required for commission of the crime charged.
a. Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or
negate the capacity to form any mental state, including purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act. Evidence of
mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or
not the accused actually formed a required specific intent, premeditated, deliberated, or harbored
malice, when a specific intent crime is charged.
b. As a matter of public policy there shall be no defense of diminsihed capacity, diminished
responsibility, or irrestible impulse in a criminal action or juvenile proceeding.
People v. Saille
1. Section 28 states that evidence of intoxication will not be admitted to negate the
capacity to form any mental state, but is admissible solely on whether or not the accused
actually formed a required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.
2. 28 also abolishes the defense of diminished capacity.
3. Prosecution does not have to show that the defendant had the ability to act within the
law, only that he had the necessary intent.
a. Express malice can be negated, implied cannot
4. Does diminished capacity as to specific intent negate malice?
a. Evidence of mental disease, disorder, or defect is still admissible on the issue of
whether the accused actually formed an intent unlawfully to kill (whether the
accused actually formed express malice).
b. 22 and 28 state that voluntary intoxication may be considered in deciding
whether the accused actually had the required mental state, including malice.
i. 28s language is broad because they apply to all specific intent crimes, so
they do not limit themselves to only express or implied malice.
ii. So that is why express malice under 188 can be negated, but not implied
1. Because if a showing that because of mental illness or voluntary
intoxication is made then in a murder case only involuntary
manslaughter can be charged, unless there is implied malice
which cannot be negated.
e. Montana v. Egelhoff
Under Due Process, states do not have to allow defendants the ability to introduce intoxication
at all to negate any intent as long as they have a valid reason to do so. This is so because
according to Scalia, the principle of intoxication negating intent is not deeply rooted in the
traditions and conscious of America to be regarded as fundamental.
a. Book Notes
Complicity is not an offense in itself, as are conspiracy and solicitation. It is rather, a theory of
liability by which an accomplice is held liable for an offense committed by the perpetrator. An
offense definition typically requires that the actor have performed certain conduct. Yet a
person may be held liable for an offense, although the person has not performed the required
conduct, if he is legally accountable for the perpetrator’s conduct. The complicity doctrine thus
imputes the perpetrator’s conduct to the accomplices if the special requirements for complicity
b. Objective Elements at CL
At common law, complicity required that the accomplice assist the perpetrator in committing
the offense. At CL, one could also be held liable for complicity for aiding the perpetrator after
the commission of the substantive offense. Such liability was, however, reserved for those
aiding the perpetrator of a felony. To be an accessory after the fact generally required that a
felony had been committed and personally gave aid to the felon for the purpose of hindering the
apprehension or punishment of the offender.
Common law viewed complicity as liability derivative from that of the principal; the principal’s
liability is extended to those who assist.
c. Objective Elements under the MPC
Section 2.06. Liability for Conduct Of Another (MPC)
(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of
another person for which he is legally accountable or both.
(2) A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the commission of the
offense, he causes an innocent or irresponsible person to engage in such conduct or
(b) he is made accountable for the conduct of such other person by the Code or by the
law defining the offense or
(c) he is an accomplice of such other person in the commission of the offense.
(3)A person is an accomplice of another person in the commission of an offense if:
(a) With the purpose of promoting or facilitating the commission of the offense he:
(i) Solicits such other person to commit it or
(ii) Aids or agrees or attempts to aid such other person in planning or
committing it or
(iii) Having a legal duty to prevent the commission of the offense, fails to make
proper effort so to do or
(b) his conduct is expressly declared by law to establish his complicity
(4) When causing a particular result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that offense, if he acts with the kind
of culpability, if any, with respect to that result that is sufficient for the commission of the
(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not
an accomplice in an offense committed by another person if
(a) he is a victim of that offense or
(b) the offense is so defined that his conduct is inevitably incident to the commission or
(c) he terminates his complicity prior to the commission of the offense and
(i) wholly deprives it of effectiveness in the commission of the offense or
(ii) gives timely warning to the law enforcement authorities or otherwise make
proper effort to prevent the commission of the offense.
(7) An accomplice may be convicted on proof of the commision of the offense and his
complicity therein, though the person claimed to have committed the offense has not been
prosecuted or convicted or has been convicted of a different offense or degree of offense or has
an immunity to prosecution or conviction or has been acquitted.
2. Objective Requirements
(b) The MPC in 2.06(3)(a)(ii) extends complicity liability to those instances in which the actor simply
agrees or attempts to aid the principal. The drafters intend that what constitutes an adequate attempt to
aid will be determined by reference to the definition of attempt in 5.01. Meaning the actor must make
a substantial step towards providing assistance. Similarly, whether an actor agrees to aid another is
determined by the offense of conspiracy in 5.03.
(c) In addition to proof of assistance or an attempt or agreement to assist, there is one final objective
requirement: the perpetrator’s commission of the offense. 2.06(7) explicitly provides that accomplice
liability requires proof of the commission of the offense.
3. The common law’s objectivist view requires actual assistance because objective harm or evil was viewed as
essential to substantial criminality, and actual assistance causally tied the offender to the harm or evil of the
4. In order for the accomplice to be held liable for an offense, the perpetrator must commit the offense.
5. Culpability Requirements
(b) At common law, it was either purposeful as to the perpetrator’s result or knowing.
1. The MPC expressly provides that the purpose requirement does not apply to a result element of
the offense. 2.06(4) provides that an accomplice need only have the kind of culpability, if any,
with respect to a result that is sufficient for the commission of the offense. In the giving keys
to drunk driver hypo, the giver need only be shows to have been negligent as to causing the
1. Leaves it up to judges to decide on a case by case basis
(e) An accomplice may be liable for any offense that was the natural and probable consequence of the
offense for which the D is an accomplice.
(f) The purpose requirement in complicity requires only that the accomplice purposely assist the
perpetrator’s conduct, not that all offense elements be elevated to purposeful. The culpability
requirements of the substantive offense as to both result and circumstance elements ought to be the
culpability required for complicity in that offense.
1. Thus, the accomplice must assist the perpetrator (or agree or attempt), with the purpose to assist
the perpetrator’s conduct that in fact constitutes the offense, and with the culpability as to the
circumstance and result elements of the offense as required by the offense definition.
1. Conduct=requires only that the accomplice assist the perpetrator with the purpose to assist the perpetrator
in his conduct that in fact constitutes the offense, not that all offense elements be elevated to purposeful
2. Result & Circumstance=Culpability for the substantive offenses for result and circumstance are the
culpability required for the substantive offense.
Section 31. Who Are Principles
o All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and
whether they directly commit the act constituting the offense, or aid and abet in its commission,
or, not being present, have advised and encouraged its commission…are principals in any
crime so committed.
Section 32. Accessories
o Every person who, after a felony has been committed, harbors, conceals or aids a principal in
such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction
or punishment, having knowledge that said principal has committed such felony or has been
charged with such felony or conviction thereof, is an accessory to such felony.
Section 33. Punishment of Accessories
Except in cases where a different punishment is prescribed, an accessory is punishable by a fine
not exceeding $5,000 or by imprisonment in the state prison, or in a county jail not exceeding
one year or by both.
2. People v. Beeman
a. An aider and abettor must act with knowledge of the criminal purpose of the perpetrator and with an
intent or purpose either of committing, or of encouraging or facilitating commission of the offense.
a. Intent is what must be proved; from a person's action with knowledge of the purpose of the
perpetrator of a crime, his intent to aid the perpetrator can be inferred. In the absence of
evidence to the contrary, the intent may be regarded as established.
Note that most jurisdictions follow a pinkerton rule: if you aid and abet a crime, then you are liable for any other
crime that is reasonably foreseeable under the circumstances.
State v. Etzweiller (NH)
Held that the accomplice must act purposely as regards to the criminal’s conduct and with the same state of
mind as required by the offense.
XIX. The Act Requirement and Liability for an Omission
a. The act requirement as in the MPC, is almost always drafted to require not only an act but a voluntary
b. Liability is also frequently imposed for an omission to perform an act that one has a legal duty to
c. Another exception to the act requirement is the criminalization of possession. Most codes simply
define possession to be an act.
d. The act requirement allows criminal law to limit liability to those who have externalized a willingness
to commit a crime. By requiring an act, the law excludes from liability those who only fantasize about
committing an offense, as well as those who may indeed form an intention to commit an offense but
whose intention is not sufficiently firm that it would ever be externalized.
e. Omission Liability
Criminal liability for the failure to act is well accepted where the actor has a legal duty and the
capacity to act. However, where an actor fails to perform a legal duty, criminal liability does
not necessarily follow. Satisfaction of the requirements for omission liability serves only to
satisfy the act requirement. Liability also requires proof of all elements of the offense: (1)
objective; (2) causality; (3) all culpability elements, as well as the absence of any general
Liability for an omission requires a legal duty to act. The duty may arise from the offense
definition itself or from some other provision of criminal or civil law. Where an offense is
defined in terms of an affirmative act, the legal duty required for omission liability must be
found elsewhere. A legal duty to act commonly is recognized in the following circumstances:
1. Landowners may have specific duties with regard to the condition of their property, as
in the requirement that homeowners fence in their swimming pool
2. A duty may arise from a special relationship between the actor and the victim, as in the
duty of a parent to protect a child
3. A contract between parties may create a legal duty to act, such as a hotel’s lifeguard’s
duty to save a drowning guest
4. Tort law may create a continuing duty of care to an actor who voluntarily assumes
responsibility for another and
5. Also under tort law, an actor may have a duty to rescue if the actor has created the peril,
even if such creation is neither tortious or criminal.
An actor’s mistake as to the existence or extent of his duty is no defense. This is true of even a
reasonable mistake as to one’s legal duty.
Section 2.01. Requirement of Voluntary Act; omission as liability
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this section:
(a) a reflex or convulsion
(b) a bodily movement during unconsciousness or sleep
(c) conduct during hypnosis or resulting from hypnotic suggestion
(d) a bodily movement that otherwise is not a product of the effort or determination of the
actor, either conscious or habitual
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by
(a)The omission is expressly made sufficient by the law defining the offense or
(b) A duty to perform the omitted act is otherwise imposed by law.
(4) possession is an act, within the meaning of this section, if the possessor knowingly procured or
received the thing possessed or was aware of his control thereof for a sufficient period to have been
able to terminate his possession.
In the CPC, we have section 15 which operates in somewhat the same way that for you to have
liability you have to have an act
h. Section 15. Crime defined
A crime or public offense is an act committed or omitted in violation of a law forbidding or
commanding it, and to which is annexed, upon conviction, either of the following punishments:
4. Removal from office or
5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state.
i. Section 20. Unity of act and intent
In every crime or public offense, there must exist a union or joint operation of act and intent, or
Lambert v. CA
Held that actual knowledge of the duty to register or proof of the probability of such knowledge and
subsequent failure to comply are necessary before a conviction under the ordinance can stand. Due process
requires notice and here, by criminalizing the failure to act, this was violated. It can be argued that this ruling
only applies to regulatory or minor offenses thought and only where the existence of a duty is not generally
known and has not reasonably been made known, or only to cases where all of these special conditions are
Robinson v. CA
Held that criminalizing the mere status of being addicted to a crime, not the actual use or possession,
criminalized a disease and constituted an infliction of cruel and unusual punishment under the 8th amendment.
Scales v. US
The court barred the government from criminalizing pure membership in the Communist Party.
Powell v. Texas
Held that it was not unconstitutional to punish someone for being drunk in public, because this did
not punish the status of alcoholism, as in Robinson, but rather the actual act of being drunk. It does
not matter if alcohol addiction is occasioned by some strong compulsion to drink because Robinson
simply stated that criminal penalties may be inflicted only if the accused has committed some act or
has engaged in some behavior which society has an interest in preventing. It doesn't deal with
whether conduct can be punished if it is actually involuntary or occasioned by a compulsion.
If it is not a crime to have an irresistible compulsion to use drugs as in Robinson, then it cannot be a crime
to yield to such a compulsion
Similarly the chronic alcoholic should not be punished for drinking or being drunk.
The chronic alcoholic should take the precaution of drinking in his home; but there are those who do
not have a home and must drink somewhere. For these alcoholics, a showing could be made that
resisting drunkenness is impossible and that avoiding public places when intoxicated is also
Jones v. US
There are at least four situations in which the failure to act may constitute breach of a legal duty: (1) where a
statute imposes a duty to care for another (2) where one stands in a certain status relationship to another (3)
where one has assumed a contractual duty to care for another and (4) where one has voluntarily assumed the
care of another and so secluded the helpless person as to prevent others from rendering aid.
XX. Corporate Criminality
a. Organizational Liability as Imputation
Because an organization can neither act nor think except through its agents and officers, it
cannot satisfy the elements of an offense except through imputation. Thus, if criminal liability
of organizations is to be provided, the criminal law must specify the rules for imputation of
conduct and culpability to an organization.
b. CL: the CL was reluctant to charge corporations with crimes because they could not provide the
necessary culpability, but they would allow SL crimes to be charged. However, corporations could not
be charged with specific intent offenses because they could not provide the required intent. The
potential for general intent offenses was then allowed as common law rules would presume a required
general intent from the offense conduct.
c. Reckless Toleration
Some jurisdictions follow the MPC in extending liability beyond conduct authorized by
corporate management to offense conduct recklessly tolerated.
d. Unauthorized Criminal Offense
Some jurisdictions including the federal government, provide a still broader form of corporate
liability. They simply impute the acts and omissions of agents within the scope of employment
to the corporation, even for serious offenses; corporate liability is not limited to violations
authorized by or recklessly tolerated by upper management.
1. Held that there need be no official authorization or toleration of the criminal conduct of
agents for imputation: the offense conduct will be imputed to the corporation even if
management specifically prohibits the conduct. The court reasoned that a corporation’s
express prohibition of the criminal conduct ought not protect the corporation from
liability because, after issuing formal orders against a violation, the upper management
still may create pressure for the violation in less visible ways.
e. Commonwealth v. Beneficial Finance
The MPC seems to require that there be authorization or reckless inaction by a corporate
representative having some relation to framing corporate policy, or one having duties of such
responsibility that his conduct may fairly be assumed to represent the policy of the corporation.
A corporation may be convicted of a crime if the commission of the offense was authorized,
requested, commanded, performed, or recklessly tolerated by the board of directors or by a high
managerial agent acting in behalf of the corporation within the scope of his officer or
The code requires that there be authorization or reckless inaction by a corporate representitive
having some relation to framing corporate policy, or one having duties of such responsibility
that his conduct may fairly be assumed to represent the policy of the corporation
Section 2.07. Liability for corporations
(1) A corporation may be convicted of the commission of an offense if
(a) The offense is a violation or the offense is defined by a statute other than the Code in which a
legislative purpose to impose liability on corporations plainly appears and the conduct is
performed by an agent of the corporation acting in behalf of the corporation within the scope of
his office or employment, expect that if the law defining the offense designates the agents for
whose conduct the corporation is accountable or the circumstances under which it is
accountable, such provisions shall apply or
(b) The offense consists of an omission to discharge a specific duty of affirmative performance
imposed on corporations by law or
(c) The commission of the offense was authorized, requested, commanded, performed, or
recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of
the corporation within the scope of his office or employment.
(2) When absolute liability is imposed for the commission of an offense, a legislative purpose to impose
liability on a corporation shall be assumed, unless the contrary plainly appears.
(4) As used in this section
(a) “Corporation” does not include an entity organized as or by a governmental agency for the
execution of a governmental program
(b) “Agent” means any director, officer, servant, employee or other person authorized to act in
behalf of the corporation or association and, in the case of an unincorporated association, a
member of such association.
(c) “High managerial agent” means an officer of a corporation or an unincorporated association
or in the case of a partnership, a partner, or any other agent of a corporation or association
having duties of such responsibility that his conduct may fairly be assumed to represent the
policy of the corporation or association.
(5) In any prosecution of a corporation or an unincorporated association for the
commission of an offense included within (1)(a) or (3)(a) of this section, other than an offense for
which absolute liability has been imposed, it shall be a defense if the D proves by a preponderance of
the evidence that the high managerial agent having supervisory responsibility over the subject matter
of the offense employed due diligence to prevent its commission. This paragraph shall not apply if it is
plainly inconsistent with the legislative purpose in defining the particular offnese.
(6) (a) A person is legally accountable for any conduct he performs or causes to be performed in the name of
the corporation or an unincorporated association or in its behalf to the same extent as if it were performed in
his own name or behalf.
(b) Whenever a duty to act is imposed by law upon a corporation or an unincorporated
association, any agent of the corporation or association having primary responsibility for the
discharge of the duty is legally accountable for a reckless omission to perform the required
act to the same extent as if the duty were imposed by law directly upon himself.
(c) When a person is convicted of an offense by reason of his legal accountability for the
conduct of a corporation or an unincorporated association, he is subject to the same sentence
authorized by law when a natural person is convicted of an offense of the grade and the
The MPC extends liability beyond conduct authorized or ratified by corporate management to
offense conduct recklessly tolerated. This seeks to prevent management from simply turning a
blind eye to violations because the violations further the corporate interest.
The MPC also allows liability without a showing of authorization or reckless toleration by
upper management for quasi-criminal offenses (violations) and regulatory offenses.
1. But 2.07(1)(a) allows a due diligence defense.
1. Section 387. Corporate Liability for nondisclosure of serious concealed danger subject to
(a) Any corporation, LLC, or person who is a manager with respect to a product, facility,
equipment, process, place of employment, or business practice is guilty of a public
offense punishable by imprisonment in the county jail for a term not exceeding one
year, or by a fine not exceeding $10,000 or by both or by imprisonment in the state
prison for 16 months, two, or three years, or by a fine not exceeding $25,000 or by both
but if the D is a corporation or a LLC the fine shall not exceed $1,000,000, if that
corporation or LLC or person does all of the following:
(1) Has actual knowledge of a serious concealed danger that is subject to the
regulatory authority of an appropriate agency and is associated with that product
or a component of that product or business practice.
(2) Knowingly fails during the period ending 15 days after the actual knowledge is
acquired, or if there is imminent risk of great bodily harm or death, immediately,
to do both of the following
(A) Inform the Division of Occupational Safety and Health in the
Department of Industrial Relations in writing, unless the corporation,
LLC, or manager has actual knowledge that the division has been
Where the concealed danger reported pursuant to this paragraph is
subject to the regulatory authority of an agency other than OSHA it shall
be the responsibility of OSHA within 24 hours to tell the right agency.
(B) Warn its affected employees in writing, unless the corporation, LLC, or
manager has actual knowledge that the employees have been so warned.
The requirement for disclosure is not applicable if the hazard is abated
within the time prescribed for reporting, unless the appropriate
regulatory authority nonetheless requires disclosure by regulation.
Where OSHA was not notified, but the corporation, LLC, or manager
reasonably and in good faith believed that they were complying with the
notification requirements of this section by notifying another agency, no
penalties shall apply.
(b) As used here, Definitions:
(1) “Manager” means a person having both of the following
(A) Management authority in or as a business entity
(B) Significant responsibility for any aspect of a business that included
actual authority for the safety of a product or business practice or for the
conduct of research or testing in connection with a product or business
(2) “Product” means an article of trade or commerce or other item of merchandise
that is a tangible or an intangible good and includes services
(3) “Actual knowledge” means has information that would convince a reasonable
person in the circumstances in which the manager is situated that the serious
concealed danger exists.
(4) “Serious concealed danger” means that the normal or reasonably foreseeable use
of the product..creates a substantial probability of death, great bodily harm, or
serious exposure to an individual, and the danger is not readily apparent to an
individual who is likely to be exposed.
(5) “Great bodily harm” means a significant or substantial physical injury.
WT Grant v. Santa Barbara
1. Corporations can commit specific intent crimes. Store manager’s are agents of the
company who act on the company’s behalf. However, there is a rebuttable presumption
created that the company may produce evidence to rebut the inference of its
participation in the charged crimes of the manager, and it may demonstrate the
manager’s lack of authority to establish or interpret company policy.
Under the CPC, scope of employment is not enough; Grant creates a rebuttable presumption. If
you do not have the authority to act on behalf of the corporation, then there is no doctrine of
Also under CPC(7), the “person” includes a corporation as well as a natural person.
XXI. General Defenses
a. General defenses have general application to all offenses. Such general defenses represent general
principles of defense that are not dependent on or related to the definition of any particular offense or
group of offenses. There are three kinds: (justifications, excuses, and nonexculpatory).
b. Justifications: exculpate on a theory that the actor’s otherwise criminal conduct in fact avoided a
greater harm or evil. While an actor satisfies the elements of an offense, her offense is tolerated or
even encouraged because it does not cause a net societal harm.
c. Lesser Evils: the defense explicitly requires that the harm or evil sought to be avoided by such conduct
is greater than that sought to be prevented by the law defining the offense charged.
d. Public Authority Justifications
Unlike defensive force justifications, public authority defense need not be triggered by a threat
from another. An actor may be justified if she affirmatively acts to further a legally recognized
interest. Furthers criminal law enforcement, military operations, and effective exercise of
judicial authority interests.
e. Defensive Force justifications
Such defensive force justifications are each triggered by a threat of unlawful force. They are
distinguished by the interest that is threatened.
f. MPC-Lesser Evils
Section 3.02. Justification Generally Choice of Evils
(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to
another is justifiable provided that
(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged and
(b) Neither the code nor other law defining the offense provides exceptions or defenses
dealing with the specific situation involved and
(c) A legislative purpose to exclude the justification claimed does not otherwise plainly
(2) When the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the justification
afforded by this Section is unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be, suffices to establish culpability.
Subsection (2) means that if the actor is negligent/reckless in bringing about the situation or in
believing his conduct is necessary, then he does not get this defense, for reckless or negligent
g. General Concepts
1. The MPC allows a defense no matter what the source of the threat is as long as the
conduct avoided a greater harm than it caused. Legally protected interests relevant to
the defense include not only those interests given express sanction in the law, such as
one’s right to freedom of political or religious expression, but also interests that the
community is willing to recognize that are not specifically denied recognition by the
1. The actor’s response must be both necessary and proportionate. The necessity
requirement has two components:
a. The conduct must be necessary in time and in the amount of harm caused. That
is, the necessity requirement is not satisfied if the conduct would have been as
effective if delayed or if a less harmful alternative is available and would
b. Necessity in time
i. Many statutes require that the threat of harm must be imminent in order
to entitle the actor to act under a lesser evils defense. So, unless the
danger is imminent, the defense is not available.
c. Necessary amount of harm
i. The amount of harm aspect of the necessity requirement bars the lesser
evils defense where a lawful or a less harmful means exists to protect
the threatened interest. If the conduct could be prevented by less than
that used, then the actual conduct is not necessary.
2. Proportionality Requirement
a. It is not enough for the defense that the harmfulness of the actor’s conduct is
generally proportionate to the harm threatened or that the actor’s conduct caused
no more harm than it avoided. The actor’s conduct must be shown to have been
less harmful that the harm threatened. Thus, where two lives are in danger, one
could not lawfully take the others.
b. Generally does not allow one to balance innocent lives
3. It is a corollary of representative government that the ultimate power to judge the
relative values of competing interests rests with the legislature. If an actor balances the
competing interest in a way different from the legislature, the legislature’s view must
a. One means the legislature does this by is to provide another justification defense
that specifically addresses the situation. Thus, more specific justification
defenses are given superiority over more general defenses, such as lesser evils.
1. The defense of necessity involves a determination that a harm or evil sought to be
avoided by particular conduct is greater than that sought to be prevented by the law
defining the offense charged.
2. Unlike duress, which requires an immediate threat, the threat to be avoided in a
necessity defense can be in the future. Since the threatened harm is in the future, it is
assumed that the defendant has time to balance alternative courses of conduct. Thus, it
is a general defense, unlike duress which actually negates a culpability element.
3. People v. Heath (uncodified in CPC)
a. Six-part necessity defense
i. The act charged as criminal must have been done to prevent a significant
ii. There must have been no adequate alternative to the commission of the
iii. The harm caused by the act must not be disproportionate to the harm
iv. The accused must entertain a good-faith belief that his act was necessary
to prevent the greater harm
v. Such belief must be objectively reasonable under all the circumstances
vi. The accused must not have substantially contributed to the creation of
b. More differences with duress
i. Because in duress, the person being charged had no time to formulate
criminal intent or to determine a reasonable course of conduct, the
unlawful acts of the person are attributed to the coercing party who
supplies the requisite mens rea. Thus, duress negates an element of the
crime charged—the intent or capacity to commit the crime—the D need
only raise a reasonable doubt that he acted in the exercise of his free will.
ii. The defense of necessity provides a defense distinct from the elements
required to prove the crime. The situation presented must be of an
emergency nature, threatening physical harm, and lacking an alternative,
legal course of action. Unlike duress, the threatened harm is in the
immediate future, which contemplates the D having time to balance
alternative courses of conduct. The D has the time, although limited, to
form the necessary general intent required for the crime.
h. Public Authority Justifications
Section 3.01. Justification an Affirmative Defense
1. In any prosecution based on conduct which is justifiable under this Article, justification is an
Section 3.03. Execution of Public Duty
Except as in (2), conduct is justifiable when it is required or authorized by:
(a) The law defining the duties or functions of a public officer or the assistance to be
rendered to such officer in the performance of his duties or
(b) the law governing the execution of legal process
(c) the judgment or order of a competent court or tribunal or
(d) the law governing the armed services or the lawful conduct of war or
(e) any other provision of law imposing a public duty
The other sections of this article apply to
(a) The use of force upon or toward the person of another for any of the purposes dealt
with in such sections and
(b) The use of deadly force for any purpose, unless the use of such force is otherwise
expressly authorized by law or occurs in the lawful conduct of war.
The justification of (1) applies
a. When the actor believes his conduct to be required or authorized by the judgment or
direction of a competent court or tribunal or in the lawful execution of legal process,
despite lack of jurisdiction of the court or defect in the legal process and
b. When the actor believes his conduct to be required or authorized to assist a public
officer in the performance of his duties, despite that the officer exceeded his legal
Section 3.07. Use of Force in Law Enforcement
(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or
toward the person of another is justifiable when the actor making or assisting in making an
arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
(a) The use of force is not justifiable under this section unless
(i) The actor makes known the purpose of the arrest or believes that it is
otherwise known by or cannot reasonably be made known to the person to
be arrested and
(ii) When the arrest is made under a warrant, the warrant is valid or believed by
the actor to be valid.
(b) The use of deadly force is not justifiable unless
(i) The arrest is for a felony and
(ii) The person effecting the arrest is authorized to act as a peace officer or is
assisting a person whom he believes to be authorized to act as a peace officer
(iii) The actor believes that the force employed creates no substantial risk of
injury to innocent persons and
(iv) The actor believes that
(1) The crime for which the arrest is made involved conduct including the
use or threatened use of deadly force or
(2) There is a substantial risk that the person to be arrested will cause death
or serious bodily harm if his apprehension is delayed.
(3) the use of force to prevent the escape of an arrested person from custody is justifiable
when the force could justifiably have been employed to effect the arrest under which the person
is in custody, except that a guard or other person authorized to act as a peace officer is justified
in using any force, including deadly force, which he believes to be immediately necessary to
prevent the escape of a person from jail, prison, or other institution for the detention of persons
charged with or convicted of a crime
(4) use of force by private person
(a) a private person who is summoned by a peace officer to assist in effecting an
unlawful arrest, is justified in using any force which he would be justified in using if the arrest
were lawful, provided that he does not believe the arrest is unlawful.
(b) a private person who assists another private person in effecting an unlawful arrest,
or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified
in using any force which he would be justified in using if the arrest were lawful, provided that
(i) he believes the arrest is lawful, and (ii) the arrest would be lawful if the facts were as he
believes them to be.
(5) Use of force to prevent commission of a crime
(a) The use of force upon or toward the person of another is justifiable when the actor
believes that such force is immediately necessary to prevent such other person
from…committing or consummating the commission of a crime involving or
threatening bodily harm, damage to or loss of property or a breach of the peace except
(i) Any limitations imposed by the other provisions of this article on the justifiable
use of force in self-protection, for the protection of others, the protection of
property, the effectuation of an arrest or the prevention of an escape from custody
shall apply despite the criminality of the conduct against which such force is used
(ii) The use of deadly force is not in any event justifiable under this subsection
(1) The actor believes there is a substantial risk that the person whom he
seeks to prevent from committing a crime will cause death or serious bodily
harm to another unless the commission or consummattion of the crime is
prevented and that the use of such force presents no substantial risk of injury
to innocent persons or
(2) The actor believes that the use of such force is necessary to suppress a
riot or mutiny after the rioters or mutineers…
(b) the justification afforded by this subsection extends to the use of confinement as preventive
force only if the actor takes all reasonable measures to terminate the confinement as soon as he
knows that he safely can, unless the person confined has been arrested on a charge of crime.
Public authority justifications are available to actors specially authorized, and usually specially trained, to engage
in conduct otherwise constituting an offense that is necessary to protect or further a societal interest. Unlike
defensive force justifications, the actor’s authority is not limited to defensive action. She may act affirmatively to
further a public interest, even one that is entirely intangible.
Special authorization and evoking conditions trigger an actor’s right to use necessary and proportional force.
In addition to the requirement that the actor be authorized, public authority justifications typically require that
the existing circumstances trigger the need for the actor to act.
Public authority justifications typically require that the existing circumstances trigger the need for the actor to
act. They do not require a threat of harm to persons or property as defensive force justifications do. They are
evoked whenever a recognized interest is endangered or an opportunity to further an interest is presented.
Once the authorization and evocation requirements are met, the actor has authority to act but must use the
least harmful conduct necessary to protect or further the interests at stake, and the actor must act only
The proportionality requirement ensures that no matter what force may be necessary to protect or further
the interest at stake, no more force may be used than is justified by the importance of that interest.
MPC 3.03 describes the broadest public authority justification. It provides a defense for otherwise
criminal conduct that is specifically required or authorized by the actor’s public duty. The provision sets
no specific limits on the use of force but rather provides a defense to actors who do what they are told to
do by higher authority. 3.03(2)(a) gives superiority to all more specific justification provisions.
Tennesee v. Garner
Held that a statute that allowed the use of deadly force to prevent the escape of all felony suspects,
whatever the circumstances, is constitutionally unreasonable.
o Section 195. Excusable Homicide (1)
When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual
and ordinary caution, and without any unlawful intent.
o Section 196. Excusable Homicide by public officers
Homicide is justifiable when committed by public officers and those acting by their command in their aid
and assistance, either
1. In obediance to any judgment of a competent court or
2. When necessarily committed in overcoming actual resistance to the execution of some legal
process, or in the discharge of any legal duty or
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when
necessarily committed in arresting persons charged with felony, and who are fleeing from justice or
resisting such arrest.
This may be unconstitutional under People v. Gardner which held that the use of deadly force to
prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.
Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting
from failing to apprehend him does not justify the use of deadly force to do so.
Section 199. Not Punishable
The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully
acquitted and discharged.
Section 835a. Reasonable force to effect arrest
Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public
offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of
the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an
aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape
or to overcome resistance.
o CPC, citizens’ arrest
Section 837 of the CPC provides that a private person may make an arrest for a public offense
committed in his presence for an individual who has committed a felony, but you have to be right,
unless you go to the next section which just requires reasonable cause
835(a) allows for the use of force to make an arrest, which only applies to peace officers, which is
defined in 8300
XXIX. Defensive Force Justifications
Defensive force justifications provide a defense for the use of force necessary to protect persons or property
from unjustified aggression. There are three such defenses: (1) self-defense; (2) defense of another; and (3)
defense of property. Triggering conditions authorizing responsive force must be necessary to protect from and
proportional to the harm threatened.
A defensive force justification is triggered when an aggressor unjustifiably threatens harm to persons or
Requirement of Aggressor
That the person against whom the actor uses force is acting unlawfully is not enough. For defensive force,
active physical aggression is required.
Distinguishing Aggression and Defense
(1) You cant just hunt down an initial aggressor and use force against them.
(1) In order to trigger a defensive force justification, the aggressor must unjustifiably threaten harm to the
actor. Thus, when a police officer uses justified force to effect an arrest, the arrestee has no right of
self-defense, and others may not lawfully use defensive force on his behalf.
(a) Acting in justified self-defense does not allow the initial aggressor to fight back unless the initial
victim’s response is out of proportion.
(2) Unlawful Force
(a) A common formulation of defensive force triggering conditions allows an actor to defend only
against unlawful force.
The MPC authorizes defensive force only to defend against unlawful force. Unlawful force as defined in
3.11(1) if force, the employment of which constitutes an offense or actionable tort or would constitute such
offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress;
youth; or diplomatic immunity) not amounting to a privileged use of force.
By including these definitions within the MPC formulation, it permits resistance to, and interference with,
Once the right to use defensive force is triggered by an unjustified threat, an actor may lawfully use force
in defense, but only force that is necessary to protect the person or property threatened.
(1) Force may be used only (1) when necessary and (2) to the extent necessary. So the actor cannot use
force when such force would be equally effective at a later time. Nor may an actor use more force than
is necessary for the defensive purpose. If the threat can be effectively defended against without force
or with lesser force, the greater force is not justified.
Difference with Lesser Evils (Necessity)
(1) Since the force used must be immediately necessary, then it differs from the lesser evils defense. Thus,
the necessity requirement in defensive force apparently is meant to be stricter than it is in lesser evils
where the conduct need only be “necessary” whereas in the MPC it is “immediately necessary.”
Defense of others—MPC
The MPC allows for the use of force when the actor would be justified in using such force in self-defense
and where the actor believes that such force would be justified if used by the person being defended.
However, the extent necessary to defend another may vary both as to the ability of the actor and the person
being defended. If the person being defended is a judo champion, then the actor may not use deadly force
if the judo guy could subdue his attacker.
Legislative concern and Proportionality
Legislative concern for proportionality is most obvious in the defense of property. The harm of physical
injury to a thief is balanced against both the owner’s interest in retaining the threatened property and
society’s interest in preserving a right of property ownership generally and in condemning unjustified
aggression. A human life, even that of a thief, is seen as having greater value than protecting property and
discouraging aggression against property.
Proportionality in self-defense
(1) Self-defense is unique among justifications and can be conceptually troublesome. By definition only
one life is being balanced on both sides. However, the community generally gives due weight to
protecting personal autonomy and condemning and deterring unjustified aggression, which would
permit the killing of the aggressor.
Section 3.04. Self-Protection
(1) The use of force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such
other person on the present occasion.
(a) The use of force is not justifiable under this section
(i) to resist an arrest which the actor knows is being made by a peace officer, although the
arrest is unlawful or
(ii) to resist force used by the occupier or possessor of property or by another person on his
behalf, where the actor knows that the person using the force is doing so under a claim of right to
protect the property, except that this limitation shall not apply if
(1) the actor is a public officer acting in the performance of his duties or a person
lawfully assisting him therein or a person making or assisting in a lawful arrest or
(2) the actor has been unlawfully disposed of the property and is making a re-entry or
reception justified under 3.06 or
(3) the actor believes that such force is necessary to protect himself against death or
serious bodily harm.
(b) The use of deadly force is not justifiable under this section unless the actor believes that such
force is necessary to protect himself against death, serious bodily harm…nor is it justifiable if
(i) the actor provoked the use of deadly force or
(ii) The actor knows that he can avoid the necessity of using such force with complete safety by
retreating or surrendering possession of a thing to a person asserting a claim of right or by
complying with a demand that he abstain from any action which he has no duty to take, except that
(1) The actor is not obliged to retreat from his dwelling…
(2) A public officer justified in using force in the performance of his duties or a person justified
in using force in his assistance or a person justified in using force in making an arrest or preventing
an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent
such escape because of resistance or threatened resistance by or on behalf of the person against
whom such action is directed.
(c) Except as under (a) and (b), a person employing protective force may estimate the necessity
thereof under the circumstances as he believes them to be when the force is used, without
retreating, surrendering possession, doing any other act which he has no legal duty to do or
abstaining from lawful action.
(3) The justification afforded by this section extends to the use of confinement as protective force only if
the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely
can, unless the person confined has been arrested on a charge of a crime.
1. Section 3.05. Use of Force for the Protection of Others
1. Subject to 3.09, the use of force upon or toward the person of another is justifiable to protect a third
a. The actor would be justified under 3.04 in using such force to protect himself against the injury
he believes to be threatened to the person whom he seeks to protect and
b. Under the circumstances as the actor believes them to be, the person whom he seeks to protect
would be justified in using such protective force and
c. The actor believes that his intervention is necessary for the protection of such other person.
2. Notwithstanding (1) of this Section:
a. When the actor would be obliged under 3.04 to retreat, to surrender the possession of a thing or
to comply with a demand before using force in self-protection, he is not obliged to do so before
using force for the protection of another person, unless he knows that he can thereby secure the
complete safety of such other person and
b. When the person whom the actor seeks to protect would be obliged under 3.04 to retreat, to
surrender the possession of at thing or to comply with a demand if he knew that he could obtain
complete safety by so doing, the actor is obliged to try to cause him to do so before using force
in his protection if the actor knows that he can obtain complete safety in that way and
c. Neither the actor nor the person whom he seeks to protect is obliged to retreat when in the
other's dwelling or place of work to any greater extent than in his own.
Section 3.06. Protection of Property
(1) Subject to 3.09, the use of force on another person is justifiable when the actor believes that such force
is immediately necessary
(a) To prevent or terminate an unlawful entry…or the unlawful carrying away of tangible, movable
property, provided that such land or movable property is, or is believed by the actor to be, in his
possession or in the possession of another person for whose protection he acts or
(b) To effect an entry or re-entry upon land or to retake tangible movable property, provided that the
actor believes that he or the person by whose authority he acts or a person from whom he such or
such other person derives title was unlawfully dispossessed of such land or movable property and
is entitled to possession, and provided further that
(i) The force is used immediately or on fresh pursuit after such dispossession or
(ii) The actor believes that the person against whom he uses force has no claim of right to the
possession of the property and, in the case of land, the circumstances, as the actor believes
them to be, are of such urgency that it would be an exceptional hardship to postpone the
entre or re-entry until a court order is obtained.
(2) Meaning of possession
(a) A person who has parted with the custody of property to another who refuses to restore it to him is
no longer in possession, unless the property is movable and was and still is located on land in his
(b) A person who has been disposed of land does not regain possession merely by setting foot thereon
(c) A person who has a license to use or occupy real property is deemed to be in possession except
against the licensor acting under claim of right.
(a) The use of force is justifiable only if the actor first requests the person against whom such force is
used to desist from his interference with the property, unless the actor believes that
(i) Such request would be useless
(ii) It would be dangerous to himself or to another to make such request or
(iii) Substantial harm will be done to the physical condition of the property which is
sought to be protected before the request can effectively be made.
(b) Trespass. The use of force to prevent or terminate a trespass is not justifiable under this Section if
the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious
(c) The use of force to prevent an entry or re-entry upon land or the reception of movable property is
not justifiable under this section, although the actor believes that such reentry or re-caption is
(i) The reentry or re-caption is made by or on behalf of a person who was actually
dispossessed of the property and
(ii) It is otherwise justifiable under (1)(b).
(d) Use of deadly force. The use of deadly force is not justifiable unless the actor believes that
(iii) The person against whom the force is used is attempting to disposses him of his dwelling or
(iv) The person against whom the force is used is attempting to commit or
consummate…burglary, robbery, or other felonious threat, and either
(1) Has employed or threatened deadly force against or in the presence of the actor or
(2) The use of force other than deadly force to prevent the commission or the
consummation of the crime would expose the actor or another in his presence to
substantial danger of serious bodily harm.
a) Section 189.5. Burden of showing mitigation
(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden
of proving circumstances of mitigation, or that justify or excuse it, desolves upon the defendant unless
the proof on the part of the prosecution tends to show that the crime committed only amounts to
manslaughter, or that the defendant was justifiable or excusable.
b) Section 197. Justifiable Homicide By Other Persons
Homicide is justifiable when committed by public officers and those acting by their command in their aid and
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily
injury upon any person or
2. When committed in defense of habitation, property, or person, against one who manifestly intends or
endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and
endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the
purpose of offering violence to any person therein or
3. When committed in the lawful defense of such person, or of a wife or husband…when there is
reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and
imminent danger of such design being accomplished; but such other person, or the person in whose
behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in
good faith have endeavored to decline any future struggle before the homicide was committed or
4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for
any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the
2-3 are objective tests
Actor can’t be the initial agrressor
1. CPC 197(3) says you have to at least try to retreat
Section 198. Bare fear
A bare fear of the commission of the offenses mentioned in 2 or 3, to prevent which homicide may be lawfully
committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a
reasonable person, and the party killing must have acted under the influence of such fears alone.
Section 199. Justifiable and Excusable Homicide not punishable
The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully
acquitted and discharged.
Section 692. Lawful Resistance
Lawful resistance to the commission of a public offense may be made:
1. By the party about to be injured;
2. By other parties
Section 693. To what extent
Resistance sufficient to prevent the offense may be made by the party about to be injured:
1. To prevent an offense against his person, or his family, or some member thereof
2. To prevent an illegal attempt by force to take or injure property in his lawful possession.
Section 694. By other parties
Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to
prevent the offense.
o 693 and 694 says you have to actually be right; there has to be some sort of proportionality
o 197(3) does not require you to be right, but you must make a reasonable duty to retreat
Self-defense in CA
CPC, citizens arrest
Section 837 of the CPC provides that a private person may make an arrest for a public offense committed in
his presence for an individual who has committed a felony, but you have to be right, unless you go to the next
section which just requires reasonable cause
835(a) allows for the use of force to make an arrest, which only applies to peace officers, which is defined in
The right to self-defense emanates from both statutory and case law, and generally arises when a D,
reasonably believing that another person is about to kill or inflict some great bodily injury on him or her,
exercises that degree of force reasonably believed to be necessary to repel the attack.
The threat of death or great bodily injury is not required in all instances before resort to force is warranted
against an aggressor; the use of non-deadly may be justified when any bodily injury is threatened.
People v. Humphrey
Self-defense requires that the D must actually and reasonably believe in the need to defend:
If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense; the D is
deemed to have acted without malice and cannot be convicted of murder, but only manslaughter. To
constitute perfect self-defense, the belief must also be objectively reasonable. (imperfect self-defense
only applies to murder).
For either perfect or imperfect self-defense, the fear must be of imminent harm. An honest belief that
the danger will become imminent in the future will not suffice. Also, fear alone must have motivated
the D to act in self-defense. The defense is also generally not available to one who initiated the
Although the ultimate test of reasonableness is objective, in determining whether a reasonable
person in Ds position would have believed in the need to defend, the jury must consider all of the
relevant circumstances in which D found herself.
XII. Mistaken Justification
Mistake as to Offense v. Mistake as to Justification
If a hunter mistakenly shoots a person thinking they are a deer, then he is not liable for murder because he
did not purposely kill another human being; he lacks the required culpability. No justification or excuse
defense is required because the required elements of the crime are not there. But in the Moro hypo, Moro
did intend to shoot and kill another human so because the elements of murder are satisfied, he needs a
general defense to be exculpated.
Mistake as to Justification
Not a true justification defense, it is instead an exculpatory or excuse defense because you are wrong
To impose liability where an actor reasonably believes that he is justified is to punish a blameless actor, an
actor who could not reasonably have been expected to have avoided the offense.
Justification for Actor who Believes Conduct Justified
Most jurisdictions provide a mistake as to a justification defense by including the word believes or
reasonably believes in the definition of justification defenses: An actor will get the justification defense if
she believes her conduct is justified, even if it is not (See Humphrey—imperfect self-defense).
Objective v. Subjective
The difficulties with subjective rules can be avoided by adopting an objective test that segregates mistaken
justifications into a separate excuse. Thus, an actor is justified only if her conduct is objectively justified.
Mistake under objective test
Under these statutes, they are better able to identify clearly and simply when one may and may not
resist or interfere with an attack. Thus, one may defend against an excused attack but not against a
Case for Subjective Theory
Argues that one ought to be justified if one reasonably believes that one’s conduct is justified. To
convict the actor is to disapprove improperly of the conduct as the actor saw it.
Culpable Mistake as to Justification
The MPC would at least allow a reasonable, negligent, or reckless mistake to mitigate the level of
liability. (a reckless mistake=reckless crime; negligent mistake=negligent crime).
Under the MPC, in protecting another, that other must be justified in using the same force to defend
himself. However, because the MPC defines justifications subjectively, Moro’s shooting is justified.
Moro believed that his shooting is immediately necessary to protect himself, as self-defense required.
One may assume that justified force is not unlawful force, but the Code’s definition of unlawful force
includes some kinds of justified force but excludes others.
The MPC’s subjective justification provisions still allow an unreasonable mistake, such as negligence
or recklessness, to at least mitigate the degree of liability.
See Humphrey case above
Humphrey says there are two ways to mitigate
You can mitigate to manslaughter for the imperfect defense; it is considered heat of passion as long
as you believe the danger to you is imminent
The court says that BWS could actually establish that you have a different view of what actually
submits you to defense
Also discusses an absolute defense
Under 197(3) it is a reasonable person standard
This requires you to evaluate the reasonableness under the particular circumstances
including the long term history of violence
People v. Young
One who intervenes under the mistaken but reasonable belief that he is protecting another who he
assumes is being unlawfully attacked is exonerated from liability.
XIII. Excuse Defenses
Justifications v. Excuses
Both are general defenses and both exculpate an actor because of his blamelessness. Justified conduct is
correct behavior that is to be encouraged in the future. In determining whether conduct is justified, the focus
is on the act and its circumstances, not the actor. An excuse though represents a legal conclusion that the
conduct is wrong and undesirable but that criminal liability is inappropriate because some characteristics of
the actor or his situation undercuts his blameworthiness and, thereby, society’s wish to punish him. Acts are
justified, actors are excused.
A distributive principle based on just deserts supports the recognition of excuses in order to exculpate
blameless offenders. One also might argue that a utilitarian distributive principle based exclusively on
special deterrence similarly would support the recognition of excuses. There is little special deterrent
value in punishing one who does not appreciate the criminality of his conduct. However, there may be
general deterrent value in doing so. Incapacitation and rehabilitation would likely want these offenders so
they do not make these kinds of mistakes again. Thus, desert and possibly special deterrence are the
guiding distributive principles rather than general deterrence, incapacitation, or rehabilitation.
Variety of Mistake Defenses
Absent element defense
If an actor takes someone’s umbrella believing it to be theirs, that would negate the culpable state
of mind that is required for theft. An actor who takes someone’s umbrella mistakenly believing it
to be a bomb to save others would satisfy the elements of theft, but would have a general defense
but a mistaken justification defense.
Ignorance of the law is no excuse
CL adhered to this
A mistake that negates an offense element, even a mistake of law, is now typically
recognized as a defense. However, the rule is still in effect where the actor mistakenly
believes his conduct is lawful if it does not negate a required element of the offense.
But there are exceptions
States that follow the MPC recognize two exceptions:
A general defense is commonly available to an actor whose ignorance or mistake of
law results because the law she violated was not made reasonably available or
because the actor reasonably relied on an official misstatement of the law.
Also if the law is not reasonably made available, then it is a defense, but this is rare
because today most laws are posted on the internet.
Section 2.04. Ignorance or Mistake
(1) Ignorance or mistake as to a matter of fact or law is a defense if
(a) The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or
negligence required to establish a material element of the offense or
(b) The law provides that a state of mind established by such ignorance or mistake constitutes a
(2) Although the ignorance or mistake would otherwise afford a defense to the offense charged, the
defense is not available if the defendant would be guilty of another offense had the situation been as he
supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and
degree of the offense of which he may be convicted to those of the offense of which he would be guilty
had the situation been as he supposed.
(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that
offense based upon such conduct when
(a) The statute or other enactment defining the offense is not known to the actor and has not
been published or otherwise reasonably made available prior to the conduct alleged or
(b) He acts in reasonable reliance upon an official statement of the law, afterward determined to
be invalid or erroneous, contained in (i) a statute or other enactment (ii) a judicial opinion,
decision, or judgment (iii) an administrative order or grant of permission or (iv) an official
interpretation of the public officer or body charged by law with responsibility for the
interpretation, administration or enforcement of the law defining the offense
(4) The D must prove a defense under (3) by a preponderance of the evidence.
1) 2.04(3)(b): all elements must be strictly complied with and the misstatement must come from an official
representative of the law. Your reliance must be reasonable—you must disclose all material facts.
Culpability as to Illegality of Conduct. Neither knowledge nor recklessness nor negligence as to
whether conduct constitutes an offense or as to the existence, meaning or application of the law
determining the elements of an offense is an element of such offense, unless the definition of the
offense or the Code so provides.
Just saying that ignorance of the law is not a defense, unless the statute states the actor must be
aware of its existence.
Frankfurter’s Dissent in Lambert
There are many laws that would convict someone for failing to do something, even though they
had no notice of it.
26(3) but only if it negates an element of the crime. Persons who committed the act or made the
omission charged under an ignorance or a mistake of fact, which disproves any criminal intent.
XIV. Insanity As A Disability Excuse
Negating an Element v. General Excuse
The effects of mental illness can sometimes make it impossible for the state to prove the culpability
requirements for an offense.
If an actor kills thinking a knife is actually a clothes brush then he cannot have the requisite intent
Also insanity can mitigate murder to manslaughter if done under extreme mental or emotional disturbance.
However, the insanity defense provides a defense without regard to the elements of the offense definition. To
get the defense, the actor need only satisfy the conditions set out in the defense provision.
The disability requirement of the insanity defense is a mental disease or defect. What constitutes a mental
disease is a question of law, not medical science.
Intoxication may cause mental dysfunction, but it is excluded as a basis for the insanity defense because it
is not a form of mental disease or defect.
Also excluded from the insanity defense is an abnormality manifested only by repeated criminal or
otherwise anti-social conduct (psychopathy).
It is not enough for an excuse that an actor suffers some abnormality, even one that causes dysfunction.
To be held blameless, the actor must have a disability with such an effect as to make it no longer
reasonable to expect the actor to have avoided the violation.
Different Tests Of Insanity
An actor has a defense of insanity if at the time of committing the act, the party accused was
laboring under such a defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing, or, if he did know it, he did not know he was doing what was
wrong. Remains the test for insanity in England.
Irresistible Impulse Test
Was added to the McNaughten test: an actor is given an insanity defense if he satisfies the
McNaughten test or
(1) If by reason of the duress of such mental disease, he had so far lost the power to choose
between the right and wrong, and to avoid doing the act in question, as that his free agency was
at the time destroyed and (2) if, at the same time, the alleged crime was so connected with such
mental disease, in the relation of cause and effect, as to have been the product of it solely.
Recognized that mental illness can take away the power to choose as effectively as it does the
knowledge of what is right and what is wrong
Durham Product Test
Recognized that mental dysfunctions, both cognitive and control type, are a matter of degree and
are not, absolute in their effect. Felt the earlier tests focused too much on symptoms and not
enough on whether the mental illness had the effect of causing the offense.
Under the test, an accused is not criminally responsible if his unlawful act was the product of
mental disease or defect. Criticized as overstating what are adequate grounds of exculpation. It is
not enough, critics argued, that the mental illness is a but for cause of the offense; it must cause a
certain minimum degree of impairment of capacity sufficient to render the D blameless for the
Federal Insanity test
The new federal test uses the appreciate language of the MPC rather than the McNaughten know,
but drops the lacks substantial capacity part, which makes it closer to the absolute requirement of
McNaughten. It also drops the control prong of the defense and reverts to the single cognitive
Almost half the American jurisdictions apply the McNaughten test. About 30% have adopted the
Guilty but Mentally Ill
Some jurisdictions use a guilty but mentally ill verdict. It may be used where the D is mentally ill,
but the illness is insufficient to provide either an insanity defense or a defense of mental illness
negating an offense element.
MPC allows for substantial capacity, CPC is more of an absolute test
Section 4.01. Mental Disease or Defect
(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of
mental disease or defect he lacks substantial capacity either to appreciate the criminality of his
conduct [wrongfulness] or to conform his conduct to the requirements of law.
(2) As used here, the terms mental disease or defect do not include an abnormality manifested only
by repeated criminal or otherwise antisocial conduct.
Section 4.02. Evidence of mental disease
(1) Evidence that the D suffered from a mental disease or defect is admissible whenever it is
relevant to prove that the D did or did not have a state of mind which is an element of the
Section 4.03. Mental Disease
(2) Mental disease or defect excluding responsibility is an affirmative defense
Section 1.12. Affirmative Defenses
(1) No person may be convicted of an offense unless each element of such offense is proved
beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is
(3) Subsection (1) does not
(a) Require the disproof of an affirmative defense unless and until there is evidence
supporting such defense or
(b) Apply to any defense which the Code or another statute plainly requries the D to prove
by a preponderance of evidence.
(4) A ground of defense is affirmative when
(a) It arises under a section of the code
Under 4.01, it is conceded that there are degrees of impairment, as Durham had sought to provide,
but requires a minimum degree of impairment: the actor must lack substantial capacity.
This test reverts to the structure of the McNaughten plus irresistible impulse test in specifically
noting that the dysfunction may affect either cognitive or control capacities. It differs though, in
that those two tests appear to require absolute dysfunction: the absence of knowledge of criminality
or the loss of power to choose. The ALI test requires only that the actor lack substantial capacity to
appreciate the criminality or to conform his conduct to the requirements of the law.
CA uses the traditional M’Naughten test and under 25(b):
In any criminal proceeding, including any juvenile proceeding, in which a plea of not guilty by
reason of insanity is entered, this defense shall be found by the trier of fact only when the
accused person proves by a preponderance of the evidence that he or she was incapable of
knowing or understanding the nature and quality of his or her act and of distinguishing right
from wrong at the time of the commission of the offense.
Using recklessness or negligence under section 28 does not allow insanity as a defense because 28
only allows evidence of a mental illness for a specific intent crime
25.5. Insanity Plea
In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this
defense shall not be found by the trier of fact solely on the basis of a personality or adjustment
disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances.
People v. Skinner
If the use of “and” was not an error in drafting, then a D would have to establish both that he
was incapable of knowing or understanding the nature and quality of his or her act and of
distinguishing right from wrong.
Applying 25(b) as a conjunctive test would return the test to the wild beast test under which an
accused could be found insane only if he was totally deprived of his understanding and
Thus, the correct reading is as the “or” not “and” and to reinstate the M’Naughten test.
Inability to appreciate moral wrong is a component of the CA insanity test
That insanity may be available as a defense to a crime charged it must appear that the D
when the act was committed, was so deranged and diseased mentally that he was not
conscious of the wrongful nature of the act committed
CA uses the traditional definition of insanity under the M’Naghten test
In Skinner, the court also held that where the D would qualify as insane under the right-wrong
prong, but not under the prong requiring an inability of knowing or understanding the nature and
quality of his or her act, the court should enter a judgment of not guilty by reason of insanity. A D
may be insane even if he or she knows that something is legally wrong. Lack of knowledge of
whether something is morally wrong is all that is required for insanity. A person is legally insane
when, by reason of mental disease or mental defect he was incapable of knowing or understanding
the nature and quality of his act or incapable of distinguishing right from wrong at the time of the
commission of the offense. The word ‘wrong’ as used is not limited to legal wrong, but properly
encompasses moral wrong as well. Thus, the D who is incapable of distinguishing what is morally
right from what is morally wrong is insane, even though he may understand the act is unlawful.
XV. Disability Excuses
Disability is an abnormal condition of the actor at the time of the offense, such as insanity, intoxication,
subnormality, or immaturity.
Its cause may be internal, such as insanity, or external such as duress.
Having a disability does not itself qualify an actor for an excuse, for it is not the disability that is central to
the reason for exculpating the actor. The requirement of an excusing condition is not an element
independent of the actor’s disability, but rather a requirement that the actor’s disability cause a particular
result, a particular exculpating mental or emotional condition in relation to the conduct constituting the
1. The conduct constituting the offense is not the product of the actor’s voluntary effort or
determination (the actor having a seizure)
This occurs where the conduct constituting an offense does not include a volitional act. Includes
conduct that is a reflex or convulsion.
2. The conduct is the product of the actor’s voluntary effort or determination, but the actor does not
accurately perceive the physical nature or consequences of the conduct (hallucinations) and therefore
does not know that the conduct is wrong or criminal
Here, there is a voluntary act, but the actor is exculpated because he is unaware of the nature of his
act. Such as where you think you squishing an orange, but it’s really a person.
3. The actor accurately perceives and understands the physical nature of the conduct and its
consequences but does not know that the conduct is wrong or criminal (the actor thinks God has
ordered him to do it).
Here, the actor engages in conduct voluntarily and knows the nature of the act but does not know
that the act is wrong or criminal.
4. The actor accurately perceives the nature and consequences of the conduct and knows its
wrongfulness and criminality but lacks the ability to control the conduct (because of an insane
compulsion or duress) to such an extent that the actor can no longer reasonably be expected to conform
his conduct to the requirements of law.
The actor is exculpated even though he knows what he is doing and knows it is wrong. The duress
defense is based solely on this condition.
An existing disability without an adequate excusing condition, is insufficient to excuse even if the
disability is a but for cause of the offense. It is not enough that the disability creates an impulse that would
not have otherwise existed, current excuses require that the compulsion be sufficiently overwhelming or
that the actor’s capacity to resist be sufficiently impaired that he could not reasonably have been expected
to have avoided the offense.
In the excuse of subnormality, low intelligence is the disability. It frequently is treated as a form of
mental defect under the insanity defense and typically requires the same cognitive dysfunction
excusing conditions as are required for insanity.
The involuntary intoxication excuse has a disability of intoxication and typically the same excusing
conditions as the insanity defense, a cognitive or control dysfunction.
Voluntary intoxication even when severe enough, will not provide an excuse defense.
As with insanity it is not enough, under involuntary intoxication, that the actor suffers the disability
required for the defense. To merit an excuse, the disability must cause sufficient dysfunction that the
actor could not reasonably have been expected to have avoided the violation.
In all the disability defenses, the law expects the actor to try to remain law-abiding and exculpates only if
the effect of the disability was sufficiently strong that the actor could not reasonably have been expected to
have successfully avoided the violation.
the immaturity excuse, sometimes called the infancy defense is conceptually similar to the standard
disability excuse requirements: a disability causing an excusing condition.
The defense has a disability requirement: the actor must have committed the offense while under
coercion to do so. Under the MPC, the duress defense requires that the actor’s disability, the coercion,
come from a particular cause: a threat of force that a person of reasonably firmness in the actor’s
situation would have been unable to resist. This allows the court to take into account an actor’s
individual circumstances and characteristics through a partial individualization of the reasonable
Narrowness of the duress defense
The criminal law is very much predicated on the assumption of free will
For duress two elements are required:
An immediate threat
A requirement that the defendant act reasonably
The MPC uses a slightly more liberal formulation in 2.08 where rather than imposing an immediacy
requirement that there be an imminent threat, it asks whether a person of reasonable firmness would be
able to resist the offense
The statutory duress defense is even narrower
Because in 26(6) it requires only a threat to your life
But Heath tells us that the CL necessity defense remains available, which is close to what the MPC
Must act on the basis of a serious threat of harm
Must make a reasonable decision that your conduct was warranted to avoid that harm
Conditions Insufficient to Excuse
The existence of a disability itself is not enough; the disability must cause an excusing condition for the
condut constituting the offense charged.
As a But for insufficient
It is not enough that the disability create an impulse, but the compulsion must be sufficiently
overwhelming or that the actor’s capacity to resist be sufficiently impairted that he could not
reasonably have been expected to have avoided the offense.
All modern excuses hold an actor to some form of objective standard in judging their efforts to remain
The MPC duress defense requires the actor meet the standard of resistance of the person of reasonable
But the insanity and involuntary intoxications defense take a “lacks substantial capacity” approach. This
requires somewhat of a normative judgment on the jury’s part.
Some studies suggest a causal connection between one’s genetic composition and a predisposition
towards violence. But the effect they have in actually causing illegal conduct is unclear; many people
with this do not break the law. Even if it creates some predisposition towards violence, a
predisposition is not enough.
May produce a duress defense during the brainwashing process. But afterwards, if the person now
holds new beliefs, although radical, this does not equate to a mental illness.
Rotten Social Background Defense
Although many people may commit crimes because of the poor or troubling backgrounds, this would
effectively give an excuse to a great number of offenders who are blameworthy.
US v. Alexander (dissent)
It is a critical responsibility of courts to undertake a purposive analysis of the responsibility defense,
instead of merely paying it lip-service in defeence to history.
1. Section 2.09. Duress
1. It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because
he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of
another, which a person of reasonable firmness in his situation would have been unable to resist.
2. The defense in this section is unavailable if the actor recklessly placed himself in a situation in which it
was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in
placing himself in such a situation, whenever negligence suffices to establish culpability for the offense
4. When the conduct of the actor would otherwise be justifiable under 3.02, this section does not preclude
2. Section 1.12. Affirmative Defenses
1. No person may be convicted of an offense unless each element of such offense is proved beyond a
reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed.
2. Subsection (1) does not
a. Require the disproof of an affirmative defense unless and until there is evidence supporting such
b. Apply to any defense which the Code or another statute plainly requries the D to prove by a
preponderance of evidence.
3. A ground of defense is affirmative when
a. It arises under a section of the code
1. Section 2.08. Intoxication
1. Except as in (4), intoxication of the actor is not a defense unless it negatives an element of the offense.
2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is
unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
3. Intoxication does not, however, constitute mental disease within 4.01.
4. Intoxication which is not (a) self-induced or (b) is pathological is an affirmative defense if by reason of
such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its
criminality or to conform his conduct to the requirements of the law.
a. Intoxication means a disturbance of mental of physical capacities resulting from the introduction of
substances into the body.
b. Self-induced intoxication means intoxication caused by substances which the actor knowingly
introduces into his body, the tendency of which to cause intoxication he knows or ought to know,
unless he introduces them pursuant to medical advice or under such circumstances as would afford a
defense to a charge of crime.
c. Pathological intoxication means intoxication grossly excessive in degree, given the amount of the
intoxicant, to which the actor does not know he is susceptible.
Section 26(6): Persons capable of committing crimes
All persons are capable of committing crimes except:
Six—persons (unless the crime be punishable with death) who committed the act or made the omission
charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their
lives would be endangered if they refused.
When a person’s will is overcome in a manner that society is willing to excuse with respect to his or her
behavior in many contexts.
Duress is an effective defense under CA law only when the actor responds to immediate and imminent danger.
A fear of future harm to one’s life does not relieve one of responsibility for the crimes he or she commits.
People v. Heath
A person is not guilty of a crime when he engages in conduct, otherwise criminal, when acting under
threats and menaces under the following circumstances:
1. Where the threats and menaces are such that they would cause a reasonable person to fear that his
life would be in immediate danger if he did not engage in the conduct charged and
2. If such person then believed that his life would be so endangered.
duress is a defense only when the actor responds to an immediate and imminent danger to his life. The D
must show that the act was done under such threats or menaces that he had (1) an actual belief his life was
threatened and (2) reasonable cause for such belief.
Subnormal intelligence is treated the same way as insanity
Addiction: people argue that the crime is not even a voluntary act
As a constitutional matter, Robertson says that addiction itself cannot be criminalized; it can also be used as a
defense to the extent it can be fit into Powell's concurrence
Most criminal codes have some kind of minimum age that is required
CPC: 26(1) there is a presumption that you cannot commit a crime if you are under 14
XXII. Nonexculpatory Defenses
Judicial, legislative, and executive immunities
Immunity after compelled testimony or pursuant to a plea agreement and
Incompetency to stand trial
b. Nonexculpatory defenses
There's always some countervailing value over justice in the particular case
The whole point of double jeopardy is that it forbids a second trial for the purpose of affording
the prosecution another opportunity to supply evidence which it failed to muster in the first
1. The intrest in repose; a certain amount of time has gone by and you shouldn’t have to
worry about being prosecuted agaiin
2. 1.06 in MPC
Stale claims: claims based on old evidence are not good
1. Countervailing foreign policy issues
1. Evidence obtained through an illegal search and seizure is excluded
2. Also applies with the Fifth Amendment
c. Each of these forms of immunity furthers a societal interest.
d. The double jeopardy clause of the fifth amendment may foreclose the trial of even a blameworthy and
convictable offender by barring the state from making a second attempt to convict him. Notions of
procedural fairness are said to demand that the state not subject a D to the embarrassment, expense,
and ordeal of trial more than once nor compel him to live in a continuing state of anxiety and
No person shall beheld to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces….; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb;
Burks v. US
It makes no difference if a reviewing court or the trial court determines there was insufficient evidence to
convict because jeopardy will attach either way. The Double Jeopardy Clause forbids a second trial for the
purpose of affording the prosecution another opportunity to supply evidence which it failed to come up with in
the first proceeding.
Full immunity is given to diplomatic agent’s, their families, their service staff but only limited immunity is
given to other members. The service staff is given limited immunity for acts committed in the performance of
their official duties.
The 4th amendment provides that when the police obtain evidence from an improper search or seizure, that
evidence is inadmissible in a subsequent prosecution of the person whose rights were violated. The
exclusionary rules are not mandated by the constitution, but are a remedy designed to achieve the goal of
preventing misconduct by police and prosecutors. But the supreme court has recognized that an exclusionary
rule will be powerless to deter invasions of constitutionally protected rights where the police either have no
interest in prosecutiong or are willing to forego successful prosecution in the interest of serving some other
1. Section 1.06. Time Limitations
A prosecution for murder may be commenced at any time.
Except as otherwise provided, prosecutions for other offenses are subject to the following
periods of limitation
(a) A prosecution for a felony of the first degree must be commenced within 6 years after it
(b) A prosecution for any other felony must be commenced within three years after it is
(c) A prosecution for a misdemeanor must be commenced within 2 years after it is
(d) A prosecution for a petty misdemeanor or a violation must be commenced within 6
months after it is committed.
2. Section 1.08. When Prosecution barred by former prosecution
When a prosecution is for a violation of the same provision of the statutes and is based on the same facts
as a former prosecution, it is barred by such former prosecution under the following circumstances
a. The former prosecution resulted in an acquittal. There is an acquittal if the proseuction resulted in a
finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to
warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater
inclusive offense, although the conviction is subsequently set aside.
b. The former prosecution was terminated, after the information had been filed or the indictment found,
by a final order or judgment for the D, which has not been set aside, reversed or vacated and which
necessarily required a determination inconsistent with a fact or a legal proposition that must be
established for conviction of the offense.
Section 1023. Effect of Conviction, acquittal or jeopardy as bar
When the D is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the
conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory
pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he
might have been convicted under that accusatory pleading.
Section 799. SOL
Prosecution for an offense punishable by death or by imprisonment for life or for the embezzlement of public
money may be commenced at any time.
Section 800. Offenses punishable by imprisonment for 8 years or more
Except as in 799, prosecution for an offense punishable by imprisonment in the state prison for 8 years or
more shall be commenced within 6 years after commission of the offense.
Section 801. Offense punishable by imprisonment in state prison
Except as in 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be
commenced within 3 years after commission of the offense.
Despite any other limitation, prosecution for a felony offense in 261, 286, 288, 288.5, 288a, or 289 or 289.5
may be commenced at any rime prior to the victim’s 28th birthday
Section 802 ??
Except as in (b), (c), or (d) prosecution for an offense not punishable by death or life, shall be commenced
within one year after commission of the offense.
Ashe v. Swenson
CE means that when an issue of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future lawsuit
CE does not apply as in civil cases though, but with realism and rationality
This requires a court to examine the record of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded
its verdict upon an issue other than that which the D seeks to foreclose from consideration
This CE is embodied in the Fifth Amendment guarantee against DJ (protects a man from having to run the
gantlet a second time)
MPC 2.13 defines entrapping conduct as conduct that creates a substantial risk that such an offense will be
committed by persons other than those who are ready to commit it. It does not require that the D be induced
by the police conduct, only that the Ds offense be in response to the police conduct. Thus, even if an actor
were uninfluenced by the entrapping police conduct, he would have a defense under the MPC if the police
conduct were judged to be improper inducement.
Under this test, entrapment is established if two showings are made: (1) governmental instigation and
inducement overstep the bounds of permissibility and (2) the D did not harbor a preexisting criminal intent.
The focus here is on the predisposition of the D to commit the crime, his or her subjective intent, rather than
the conduct of state officials.
Under a subjective formulation, the primary focus is the Ds predisposition to commit the offense. Evidence of
predisposition is not necessarily limited to the Ds conduct prior to the entrapping conduct. In Harrison v.
State, the court held that highly relevant evidence of the Ds predisposition to commit the offense may come
from how the D responds to the police inducement.
In Sorrells v. US, the Supreme Court adopted the subjective view that the entrapment defense is intended to
prevent conviction of otherwise innocent individuals who have been lured into the commission of the a crime
that they had no predisposition to commit.
Due Process Defense
The due process is given because it would compromise the dignity of the courts and violate the Ds right to due
process to allow such police conduct to support a conviction. The test for such a defense is not whether the
police conduct induced the D or might have induce an innocent person, but rather the defense is given if the
conduct offends the canons of fundamental fairness, shocking to the universal sense of justice.
Prosecutor will argue, that if the D was not otherwise entrapped, how is it outrageous to capture someone who
is otherwise predisposed
Sometimes if there is too much pressure put on someone, then it is too difficult to judge what their
predisposition is because it is too hard to tell what they would do under ordinary circumstances
Entrapment only applies to the government. For non governmental actors, there is never entrapment, there
may be duress, etc., but only the government can entrap someone.
Entrapment as Nonexculpatory v. Excuse
An objective formulation of the entrapment defense, as well as the due process defense, are nonexculpatory
defenses: they use the threat of acquittal of the D as a means of deterring improper police conduct. The
blameworthiness of the D is not relevant. The subjective formulation might appear to be an excuse, but
although induced (similar to duress and coercion), an excuse requires that the disability be sufficiently strong
in its effects that one could not reasonably have expected the actor to have avoided the violation.
Section 2.13. Entrapment
(1) A public law enforcement official or a person acting in cooperation with such an official perpetrates an
entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or
encourages another person to engage in conduct constituting such offense by either:
(a) Making knowingly false representations designed to induce the belief that such conduct is not
(b) Employing methods of persuasion or inducement which create a substantial risk that such an
offense will be committed by persons other than those who are ready to commit it.
(2) Except as in (3), a person prosecuted for an offense shall be acquitted if he proves by a preponderance
of the evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall
be tried by the Court in the absence of a jury.
(3) The defense afforded by this Section is unavailable when causing or threatening bodily injury is an
element of the offense charged and the prosecution is based on conduct causing or threatening such
injury to a person other than the person perpetrating the entrapment.
c) The MPC does not allow the defense where the offense charged has bodily injury as an element (2.13(3)).
People v. Barraza
CA adopts an objective approach:
Was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit
It is presumed that such a person would normally resist the temptation to commit a crime presented by
the simple opportunity to act unlawfully.
Official conduct that does no more than offer that opportunity to the suspect is permissible, but it is
impermissible for the police or their agents to pressure the subject by overbearing conduct such as
badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding
person to commit the crime.
Guidance will generally be found in the application of one or both of two principles
If the actions of the law enforcement agent would generate in a normally law-abiding person a
motive for the crime other than ordinary criminal intent, entrapment will be established.
Affirmative police conduct that would make commission of the crime unusually attractive to a
normally law-abiding person will likewise constitute entrapment, such as saying the act is not
illegal or will go undetected.
But while the inquiry should focus primarily on the conduct of the law enforcement agent, it should
also be judged by the effect it would have on a normally law-abiding person situated in the
circumstances of the case at hand. Among the circumstances that may be relevant for this purpose are
the transactions preceding the offense, the suspect’s response to the inducements of the officer, the
gravity of the crime, and the difficulty of detecting instances of its commission.
However, under this test, such matters as the character of the suspect, his predisposition to commit the
offense, and his subjective intent are irrelevant.
US v. Russel (SCOTUS)
The entrapment defense prohibits law enforcement officers from instigating a criminal act by persons
otherwise innocent in order to lure them to its commission and to punish them. Thus, the thrust of the defense
was held to focus on the intent or the predisposition of the D to commit the crime.
It also possible that there will be a situation where the conduct of law enforcement agents is so outrageous that
the due process principles would absolutely bar the government from invoking judicial processes to obtain a
a. Margaret: The Social Cost of Rape
Women know they are held responsible for avoiding rape, and should they be victimized, they
know they are likely to be blamed.
The greatest source of error in the reported rate of rape is the non-reported incidents. Research
shows that rapes by known assailants are particularly likely to go unreported, resulting in a
serious underestimation of the extent of violence against women.
Many campus rapes seem to involve the excessive use of alcohol by one or both persons
b. Rape: Act and Mental State
At CL rape was: (1) sexual penetration (2) forcibly (3) against the will of the victim (victim
must have physically resisted) (4) the accused mental state was generally irrelevant (5) absence
of a prompt report was evidence that the rape was not genuine (6) corroboration of the victim’s
testimony (7) prior sexual conduct of the complainant was admissible (8) since rape was hard
to prove then the victim’s testimony required close scrutiny.
1. The marital exemption rule reflected the ancient notion that rape was a property crime
and that violation was the property right of the woman’s father or husband.
The Modern Approach
1. The requirements regarding physical resistance manifesting nonconsent have been
lessened in some jurisdictions, while elsewhere there is movement toward more ready
recognition that verbal resistance should suffice
2. The marital exemption has been removed in most states
3. Rape shield laws have been enacted which bar admissibility of the victim’s prior sexual
Commonwealth v. Fischer (PA)
1. If the element of the Ds belief as to the victim’s state of mind is to be established as a
defense to the crime of rape then it should be done by the legislature, not the courts.
c. Overall Rape Notes
The traditional view of rape is laid out in the casebook
1. The traditional elements of rape were
a. Sexual penetration
b. By means of force
c. Against the will of the victim
d. Overcoming the resistance of the victim
i. Has been attacked in recent decades by having the victim subject
themselves to physical danger by having to resist
ii. At CL, there were special rules that applied to rape
1. There had to be corroboration
2. Why for rape?
3. There was no marital rape
4. Rape was a general intent crime because requirements for rape
were so demanding, so mistake defenses were rare because you
had to overcome the will of the victim
e. Commonwealth v. Fischer
i. In most cases, you cant have a mistake defense in rape because when
there is clear evidence of violence or force, how could you be mistaken
about having consent
2. The MPC was the first reexamination of rape law
a. Required prosecution to prove at least recklessness so probably harder than CL
3. In 261.2 of CPC force or coercion is suffiicient
a. Marital rape is recognized in most jurisdiction
b. 262 recognizes marital rape
4. Rape shield laws shield the victim's sexual history
a. The force requirement has often been reduced as in Griffin
5. There has been more consideration as to whether there has been a mistake element
1. Section 213.1. Rape
1. Rape: a male who has sexual intercourse with a female not his wife is guilty of rape if
a. He compels her to submit by force or by threat of imminent death, serious bodily injury,
extreme pain or kidnapping, to be inflicted on anyone or
b. He has substantially impaired her power to appraise or control her conduct….or
c. The female is unconscious or
d. …rape is a felony of the 2nd degree unless (i) in the course thereof the actor inflicts
serious bodily injury on anyone or (ii) the victim was not a voluntary social companion
of the actor upon the occasion of the crime and had not previously permitted him sexual
liberties, in which cases the offense is a felony of the 1st degree.
2. Gross sexual imposition. A male who has sexual intercourse with a female not his wife
commits a felony of the third degree if
a. He compels her to submit by any threat that would prevent resistance by a woman of
ordinary resolution or
b. He knows that she suffers from a mental disease or defect which renders her incapable
of appraising the nature of her conduct or
c. He knows that she knows that she is unaware that a sexual act is being committed upon
Culpability: must recklessly compel her to submit by force
Section 2.02. Culpability
3. When the culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts purposely, knowingly, or
recklessly with respect thereto
4. When the law defining the offense prescribes the kind of culpability that is sufficient for
the commission of an offense, without distinguishing among the material elements
thereof, such provision shall apply to all the material elements of the offense unless a
contrary purpose plainly appears.
Section 2.02. General Requirement of Culpability
(2)(c): a person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such a nature and degree that,
considering the nature and purpose of the actor's conduct and the circumstances known
to him, its disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor's situation.
He must consciously disregard a substantial risk that he is compelling her to submit by force
Also she consented which would negate the "compelled by force" element because
someone who consents cannot be compelled to do so (this may also apply to the
Section 2.11. Consent
The consent of the victim to conduct charged to constitute an offense or to
the result thereof is a defense is such consent negatives an element of the offense
or precludes the infliction of harm or evil sought to be prevented by the law
defining the offense.
Section 2.04. Ignorance or Mistake
Ignorance or mistake as to a matter of fact or law is a defense if
The ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligence required to establish a material element of the
Even if she did not consent, Ds mistaken belief that she did consent may negative the
2. 213.1(2) Gross sexual imposition. A male who has sexual intercourse with a female not his wife
commits a felony of the third degree if
a. He compels her to submit by any threat that would prevent resistance by a woman of ordinary
Culpability: recklessly compels her to submit by a threat
He never threatened her in anyway. He never even said anything really to her.
Objective: that would prevent resistance by a woman of ordinary resolution
3. Section 213.2. Deviate Sexual Intercourse by Force
1. A person who engages in deviate sexual intercourse with another person, or who causes
another to engage in deviate sexual intercourse, commits a felony of the 2nd degree if
a. He compels the other person to participate by force or by threat of imminent death,
serious bodily injury, extreme pain or kidnapping, to be inflicted on anyonre, or
b. He has substantially impaired the other person's power to appraise or control
2. A person who engages in deviate sexual intercourse with another person, or who causes
another to engage in deviate sexual intercourse, commits a felony of the third degree if
a. He compels the other person to participate by any threat that would prevent resistance
by a person of ordinary resolution or
b. He knows that the other person suffers from a mental disease…or
c. He knows that the other submits because he is unaware that a sexual act is being
committed on him
A person who has sexual contact with another not his spouse, or causes such other to have sexual
contact with him, is guilty of sexual assault if
1. He knows that the contact is offensive to the other person or
2. He knows that the other person suffers from a mental disease or defect which renders him or
3. He knows that the other is unaware that a sexual act is being committed or
Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of
arousing or gratifying sexual desire.
1. Section 261. Rape
a. Rape is an act of sexual intercourse accomplished with a person not the spouse of the
perpetrator, under any of the following circumstances
2. Where it is accomplished against a person's will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person or another.
b. As used in this section Duress means a direct or implied threat of force, violence, danger, or
retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an
act which otherwise would not have been performed, or acquiesce in an act to which one
otherwise would not have submitted. The total circumstances including the age of the victim,
and his or her relationship to the D, are factors to consider in appraising the existence of
c. Menace means any threat, declaration, or act which shows an intention to inflict an injury
Culpability: general intent (wrongful intent required though)
o Section 20. In every crime or public offense there must exist a union or joint operation of act
and intent, or criminal negligence.
Section 26(3)P: Persons who committed the act or made the omission charged under an
ignorance or mistake of fact, which disproves any criminal intent.
Section 261.6. Consent
In prosecutions under 261, in which consent is at issue, consent shall be defined to mean positive
cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and
voluntarily and have knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be sufficient to constitute consent
o People v. Griffin: rape is a general intent offense (p.5)
People v. Williams
A Ds reasonable and good faith mistake of fact regarding a person's consent to
sexual intercourse is a defense to rape. Under 26(3), reasonable mistake of fact
regarding consent is incompatible with the existence of wrongful intent.
i. Asks whether the D honestly and in good faith, although mistakenly,
believed that the victim consented to sexual intercourse
ii. A D must show evidence of the victim's equivocal conduct on the basis
of which he believed there was consent
i. Asks whether the Ds mistake regarding consent was reasonable under
D bears the burden of raising a reasonable doubt as to whether he harbored a
reasonable and good faith but mistaken belief of consent
Thus a D must show substantial evidence of equivocal conduct that would have
led a D to reasonably and in good faith believe consent existed where it did not.
All this is true because under section 20, the D must have wrongful intent to
commit a rape, but if he has a reasonable and honest belief that the victim
consented, that he lacks the wrongful intent necessary for rape.
Objective: (1) an act of sexual intercourse (2) accomplished against a person's will (3) by means of
1. An act of sexual intercourse
2. Accomplished against a person's will
3. By means of force
People v. Griffin
Since the legislature defined menace and duress, but not force, then they meant
force to have its ordinary everyday meaning.
In order to show force, the prosecution has to show that the D used force of a
sufficient degree to support a finding that the act of intercourse was against the
Does not require proof of resistance by the victim
Does not have to cause physical harm
1. Section 261.5. Unlawful sexual intercourse
a. Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who
is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section,
a minor is a person under 18, and an adult is a person who is at least 18.
b. Any person who engages in an act of unlawful sexual intercourse with a minor who is not
more than three years older or three years younger than the perpetrator, is guilty of a
2. Section 243.4. Sexual battery
a. Any person who touches an intimate part of another person while that person is unlawfully
restrained by the accused or an accomplice, and if the touching is against the will of the
person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse,
is guilty of sexual battery. A violation of this division is punishable by imprisonment in a
county jail for not more than one year or $2,000 or boty, or 2, 3, or 4 years or $10,000.
Section 263. Penetration
The essential guilt of rape consists in the outrage to the person and feelings of the victim of the
rape. Any sexual penetration however slight, is sufficient to complete the crime.
Section 264. Punishment
a. Rape, under 261, is punishable by imprisonment in the state prison for three, six, or eight
a. Rape per Griffin is a general intent offense and under Williams, then a reasonable mistake that the
victim consented will be a defense (because per CPC 20 the lowest culpability is negligence—defined
in CPC 7).
XXV. Hate Crime
a. Jacobs & Kimberley
The federal government and 37 states have passed hate crime laws that fall into four categories:
(1) sentence enhancements; (2) substantive crimes; (3) civil rights statutes; and (4) reporting
1. Bump up the penalty for a particular crime when the offender’s motivation is an
officially designated prejudice.
2. Only 18 states including DC include gender and/or sexual orientation bias as hate crime
1. The Anti-Defamation League model statute, which many states use as a prototype for
their statutes, covers only harassment or intimidation.
2. Most state hate crime laws do not use the word motivation, rather, they prohibit
choosing the victim because of or by reason of certain characteristics.
3. CA requires that the offender have intentionally selected the victim because of or by
reason of race, color, etc.
4. The majority of courts hold that prejudice must be a substantial motivating factor.
1. The ADL model statutes, which many states have adopted, provide for new substantive
offenses of intimidation and institutional vandalism.
2. The ADL recommends a second substantive hate crime statute for the destruction of
property that belongs to religious groups
The Federal Civil Rights Act
1. The civil rights statutes are not framed in terms of identity politics and group rights, but
in terms of everyone’s individual civil riths.
The 1968 Civil Rights Act
1. 245 was designed to provide a remedy for the violence resulting from opposition to civil
rights marches, voter registration drives and other voting issues, enrollment of black
students in formerly all-white schools and universities, and efforts to abolish Jim Crow
At least 10 states have civil rights type statutes patterned on the federal laws.
1. In the 1980s, Congress and a majority of state legislatures passed hate crime laws that
do not criminalize previously noncriminal behavior, but enhance punishment for
conduct that was already a crime.
Wisconsin v. Mitchell
1. Says you can enhance punishment based on a Ds motive, but not based on a statement
a. We want to make sure that we deter a certain group of people
b. The criminal law sometimes treats motive as an aggravating factor in regards to
the type of the an element of the offense
c. Usually don’t treat motive as an offense, but we look at the intent to commit the
i. We usually do not care why, but if you kill someone with intent that is
ii. Sometimes the criminal law makes motive irrelevant
iii. Said he was actually punished for the motive he had when he undertook
unprotected conduct and motive is not protected by the 1st amendment
when the state has legitimate reasons to treat motive as an aggravating
2. Distinguishes RAV v. St. Paul
a. Supreme court said you cannot punish the expression of racist thought as you
would be if you punish an intimidation statute, then that violates the 1st
b. Not too different though because often the punishment for theft turns out the
value of the property
3. The theory behind hate crime laws is similar
a. But there are 1st amendment limitations
b. If the element of the offense is based on the expression of belief
c. But if it is the motive, then you are not selecting speech, you are selecting
conduct that needs deterrence
No Hate Crime Laws
Section 422.55. Hate crime
For purposes of this title and for all other state law, the following shall apply
a. Hate crime means a criminal act committed, in whole or in part because of one or more of the
following actual or perceived characteristics of the victim
4.Race or ethnicity
b. Hate crime includes a violation of 422.6
Section 422.56. Definitions
e. Nationality includes citizenship, country of origin, and national origin
f. Race or ethnicity includes ancestry, color, and ethnic background.
i. Victim includes, but is not limited to, a community center, educational facility, family, group,
individual…or other victim or intended victim of the offense.
Because of the victim's race?
o They were going to batter someone regardless, but it was because of his race
Section 422.75. Additional punishment for felony that is hate crime
a. Except as in 422.7, a person who commits a felony that is a hate crime or attempts to commit
a felony that is a hate crime, shall receive an additional term of one, two, or three years in the
b. Except as in 422.7 or (a) any person who commits a felony that is a hate crime, or attempts to
commit a felony that is a hate crime, and who voluntarily acted in concert with another
person, either personally or by aiding and abetting another person, shall receive an additional
two, three, or for years in prison, at the court's discretion.
XXVI. Burden of Proof
1. Section 1.12. Affirmative Defenses; PBAD
1. No person may be convicted of an offense unless each element of such offense is proved
beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is
2. Subsection (1) does not
a. Require the disproof of an affirmative defense unless and until there is evidence
supporting such defense or
b. Apply to any defense which the Code or another statute plainly requires the D to prove
by a preponderance of evidence.
3. A ground of defense is affirmative when
a. It arises under a section of the code or
b. It relates to an offense defined by a statute other than the code and such statute provide
c. It involves a matter of excuse or justification peculiarly within the knowledge of the D
on which he can fairly be required to adduce supporting evidence.
4. When the application of the Code depends on the finding of a fact which is not an element of
a. The burden of proving the fact is on the prosecution or the D, depending on whose
interest or contention will be furthered if the finding should be made and
b. The fact must be proved to the satisfaction of the court or jury
5. When the code establishes a presumption with respect to any fact which is an element of an
offense, it has the following consequences
a. When there is evidence of the facts which give rise to the presumption, the issue of the
existence of the presumed fact must be submitted to the jury, unless the court is satisfied
that the evidence as a whole clearly negatives the presumed fact and
b. When the issue of the existence of the presumed fact is submitted to the jury, the court
shall charge that while the presumed fact must be proved BARD, the law declares that
the jury may regard the facts giving rise to the presumption as sufficient evidence of the
6. A presumption not established by the code or inconsistent with it has the consequences
otherwise not accorded it by law.
b. Section 1.13(9) Elements of an offense
Element of an offense means (i) such conduct or (ii) such attendant circumstances or (iii) such a
result of conduct as
(a) is included in the description of the forbidden conduct in the definition of the offense or
(b) establishes the required kind of culpability or
(c) negatives an excuse or justification for such conduct or
(d) negatives a defense under the SOL or
(e) establishes jurisdiction or venue.
ii) So under 1.12(1) and 1.13(9) since the lack of a justification or an excuse is an element of the offense, then
the burden is on the prosecution to prove BARD the lack of the existence of such defense.
i) People v. Neidenger
(1) According to Neidenger, the D has the burden of production, but the prosecution has the burden of
e) Apprendi v. NJ
i) Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved BARD.
ii) Under a strict reading of Apprendi, there is really nothing for Steele because the line that the court has
drawn is between something that negates an element of defense.
iii) Anything that negates an element always has to be proved beyond a reasonable doubt
iv) It is only burden of proof that Winship applies to, but if the defense that is at issue does not negate an
element of the defense, if instead it is something that reduces culpability or eliminates it altogether, even if
it negates an element, then under Patterson, it can be on the D. The prosecution only has to prove the
elements of the offense.
v) Apprendi says that any fact that increases the sentence must be treated as an element of the offense
f) Mullaney v. Wilbur
i) **the presence of absence of the heat of passion on sudden provocation, has been almost from the
inception of the CL of homicide, the single most important factor in determining the degree of culpability
attaching to an unlawful homicide.**
g) Martin v. Ohio
i) The state did not exceed its authority in defining the crime of murder as purposely causing the death of
another with prior calculation or design. It did not seek to shift to D the burden of proving any of those
elements, and the jury's verdict reflects that none of her self-defense evidence raised a reasonable doubt
about the state's proof that she purposely killed with prior calculation and design.