Crime An act or an omission and an accompanying by vev19514


									                Criminal Law Outline - Professor Charles S. Bobis

 Professor of Law. B.A., Harpur College, State University of New York, Binghamton; J.D., St. John's University;
 LL.M., University of London.

 Professor Bobis served as law clerk to Justice Benjamin J. Rabin of the New York State Appellate Division,
 First Judicial Department and as Law Assistant to the Justices of the same court. He later practiced for ten years
 as a trial attorney with the Criminal Defense Division of the Legal Aid Society of the City of New York before
 joining the law faculty. He is a member of the American Bar Association, the National Association of Criminal
 Defense Lawyers, and serves on the faculty of several trial advocacy programs in New York City. He is a
 member of the Board of Governors of the Criminal Law Institute of the School of Law. Professor Bobis is co-
 author of Real Estate Brokerage-Law and Practice. He teaches Criminal Law, Criminal Procedure, and Legal

   Crime: An act or an omission and an accompanying state of mind.
Criminal Law                                          Tort Law
Criminal law deals with moral content and we must A tortfeasor is one who breaches a contract and is
decide whether to inflict it or not. We are acting on between two individuals.
behalf of society (People vs. D).

A criminal conviction is a public stamp of disapproval of an act. (A scarlet letter). A criminal conviction
leads to punishment and the implication of moral guilt, stigma, and condemnation under 2 main theories
of Utilitarianism and Retributivism. Why the need for penal theories?
    1. Life and liberty are valued rights in our society so we must justify their being taken away by
    2. We should use penal theories to justify our punishments for crimes.
    3. The penal theories should guide lawmakers in setting the range of penalties for specific crimes.

I. Two Broad Theories of Punishment: Utilitarianism and Retributivism

    1. Utilitarian View: Prevention of a crime - looks forward
    • Embodied in NYPL § 1.05 (6) "To insure the public safety by preventing the commission of

       1. Prevention of Crime
       2. Social Control: Society desires crimes do not occur therefore criminal law is preventative.

                                                 Page 1 of 56 Pages
   i. Society desires to maintain the total happiness of society, "pain" is evil. We institute pain only
       when it is a necessary evil - to prevent a greater evil from taking place.
   ii. Most members of society value happiness and will value the pain handed out for a commission
       of an evil. A person will be convinced not to commit the crime as risk of being caught and
       punishment are high.

    1. Deterrence (NYPL § 1.05 (6))

        a. General Deterrence: Educative effect; Punishment to the individual serves as an object
          lesson by showing others.

        b. Specific Deterrence: Punishment for that specific offender to prevent that individual from
          repeating that crime.
            i. Incarceration: we incapacitate the offender to protect society from him committing
                future crimes
            ii. Intimidation: this also intimidates him into reforming.

            Rodney King Example - Note (1)

    2. Rehabilitation:

        We punish people to reform them and enable them to re-enter and live in society.
        NYPL § 1.05 (6): To get the individual back into society by rehabilitating and reforming him.
         High cost and unpopular today.

                                         Page 2 of 56 Pages
2. Retributivism: "Just Desserts" - Looks backward
NYPL § 1.06 (5) "To provide for an appropriate public response to particular offenses"
Criminal owes debt to society for causing harm and gets "just desserts"

   Punish to restore the moral equilibrium that the criminal has done by his evil act.

   1) Just Desserts: Punish to restore the moral equilibrium the criminal has done by his evil act.

        a. Punishment not a deterrence: Criminal has thrown off the moral balance in society by his
          act and his punishment is necessary to rebalance it. Punishment is therefore morally
          proper whether or not it will deter such behavior.

    2) Free Will: People have free will and a choice to choose criminal acts. If one odes not have free
      will then the choice is involuntary and would be improper to punish. Therefore criminal laws
      require a mens rea component, a criminal desire/intent, and are graded by levels of

        a. Proportionality: Retribution functions as a limit on punishment, as there must be a
          proportionality between the crime and the punishment.

            Hinckley & Ferguson Examples - Note (2)

Tension exists between the 2 theories and they may concur or conflict in many instances.
   1. Fault and Responsibility vs. Prevention and Maintenance of Societal Order
   2. Personal Liberty vs. Crime Prevention

    Utilitarian: Prison takes away the right to "individual liberty" and we justify this to protect the
      liberties of the rest of society.
    Retributivism: One who takes away others liberties deserves his rights to be taken away as well.

                                         Page 3 of 56 Pages
II. Origin of Criminal Law and Statutory Interpretation and Limitation

   A. Origin of Criminal Law:

       1. American Criminal law was derived from the English common law.
       2. The courts and legislators modified the English common law to suit the American system.
       3. This was further codified by the legislature. Each state and the Federal Government had their
         own penal code.
       4. In 1962 the American Law Institute created the MPC for sates to use to modify their state penal
         codes. MPC provides a sense of consistency between the states. The MPC does not mimic
         the common law.
       5. NY. adopted a modified MPC, using both the MPC and the common law in 1965 (NYPL).

   B. Interpretation of Criminal Statute:

       1. Penal statutes are construed strictly. This is an old maxim which comes from the days when
         the punishment for even minor crimes was death, the concept of "lenity." Most modern penal
         codes refute this maxim. If it can find a justification for a statute, despite the fact legislature may
         not have discussed it, the court will not second guess the legislature.
           • Courts want to defer to legislature's judgment as they are elected by the people, and also in
             better position to create criminal laws. Courts hesitant to overturn what legislature enacts.

           a. NYPL § 5.00: "Penal law not strictly construed" but in modern times the statutes are
             strictly construed and only made by legislature. Must be construed according to the fair
             import of their terms to promote justice.

       2. Common Law Use in Interpretation: although the common law is no longer law, it can be used
         to help interpret the penal statutes.

           a. Minority of states (not NY) do not have many items statutory and common law can be used
             to "fill in the gaps." Some rules are not codified (no statutes govern) and thus the common
             law is used. Example: If a crime did not define "manslaughter" we would look to common
             law for a definition.
           b. Certain "well developed" ideas may not have been needed to be defined by statute and
             accordingly, were not codified but "embodied" within the statute. Court and Congress may
             use common law to aid in defining these uncodified and "well developed" concepts.
               • Canal Street Example - Note(3)

       3. Statutes should be a safe guide to people who want to be law abiding.
           a. Vagueness Doctrine: A statute may not be so duly vague that it fails to give a person of
             ordinary intelligence fair notice that his contemplated act is forbidden. Statutes giving law
             enforcement and the courts unbridled discretion are not constitutional.

   C. Classification of Crimes: The main distinction are between felony and misdemeanor.
       1. NY. Categorizes punishment.
           a. Felony: Greater than 1 year punishment in state of penitentiary; 12 member jury
           b. Misdemeanor: 15 days to 1 year in local (county) jail. "petty offenses"; 6 member jury
       2. Grand Jury: In the federal system and 1/3 of the states including NY, a felony must have an
         indictment by a grand jury.

                                              Page 4 of 56 Pages
D. What limits are there on legislature to make the law?

A state may mandate or prohibit conduct as long as it does not conflict with an explicit or
  implicit section of federal law and the constitution. People v. Kohrig - Note (4)

1. Constitutional limits: Broad range given, and rarely intervene.
2. Social restraints: Political agenda is important and what will the public accept as a crime?

Legislature can make something a crime pursuant to the legal protection clause of the constitution.
Example: Common law says marital rape is not a crime, but statute does so.

1. States can only enact laws pursuant to their "police powers" - a standard of constitutional review
  for police powers is whether the law has a rational basis. If law burdens an individual it must have a
  benefit to the community.
    a. Exception: Test for "compelling state interests" or "strict scrutiny" may be used if a
       constitutional right is affected.
         i. Strict Scrutiny: Test applied where the criminal statute affects a fundamental right. Does
             this statute benefit only the individual defendant or is there a corresponding social benefit?
         ii. Compelling State Interest: Legislation can invade personal rights only when there is a
             compelling state interest, and there are no "lesser" means available to accomplish the
             governments goals without the invasion of this individual's rights.

2. Test for constitutionality:

    1. Does the statute affect a fundamental constitutional right? If yes, then step 2.
    2. Is there a rational basis for the statute? It may not be arbitrary/discriminatory or prejudicial.
      Courts not in business of declaring things unconstitutional. If statute has conceivably a rational
      basis, even if court does not give a reason, courts will uphold the statute. (Seat belt law seems
      rational so court upheld law even though the first reason was baloney). Gender, race religion
      statutes will be suspect of unconstitutionality. Must be consistent with Due Process, Protection
      clause, bill rights, and 5th amendment.

    State's power to criminalize is broad and subject to few judicial constraints. If the law does not
      violate a constitutional provision, then state legislature needs only a rational basis for the law,
      and that the law is not impartial..

                                          Page 5 of 56 Pages
E. Legality
    "No conduct no matter how immoral/harmful is a crime until legislature makes it a crime."
    "No punishment without law - no crime without law"

a. A crime is any social harm defined and made punishable by law.
    1. Gives fair notice of crime to society and potential wrongdoers
    2. Prevents repression by government (from retroactive criminalization)
         Ex Post Facto: A court cannot construe a statute to make a conduct criminal which was not
          criminal at the time the act was performed. Such a construal would violate due process of
          law. Statutes put people on notice that their behavior may be wrong, and this may act as a
          deterrence to the wrongful behavior. • Bouie v. City of Columbia - Note (5)
    3. This will amount to constructive notice to people - we don't want statutes to give unbridled
      protection to police and legislature (common to vagrant statutes - what does vagrancy mean?)

b. Vagueness Doctrine: A statute may not be so duly vague that it fails to give a person of ordinary
  intelligence fair notice that his contemplated act is forbidden.
    • A statute will not be considered vague if the definition of a term may be found in common law.
    • Statutes giving law enforcement and the courts unbridled discretion are not constitutional. We
       do not want to give arbitrary/discriminatory enforcement powers to the police. • Palmer v. City of
      Euclid - Note (6)

        Test: The greater the law impacts on a fundamental right, the greater the clarity in the
          statute will be demanded by the courts.

F. Proportionality: NYPL § 1.05 (4)
    "To differentiate on reasonable grounds between serious and minor offenses and to proscribe
      proportionate penalties therefor;

The court will not intervene and question whether a punishment is not befitting the crime. Only in
  severe cases where the punishment is grossly disproportionate to the crime , if torture and/or the
  death penalty is involved ,will the court intervene. for "cruel and unusual punishment" as per the 8th
  Amendment. • Harmelin v. Michigan - p. 1s

    A. Rules of Harmelin:
        Scalia: Cruel and unusual punishment of the 8th amendment only refers to crimes involving
          the death penalty. Cruel and unusual is only in relation to torture, and we need to promote
          the concepts of federalism.
        7 justices state there is a proportionality rule and that would invalidate Harmelin's sentence,
          however, since drug trafficking was such a serious problem (as "cattle stealing" may have
          been to a degree) the court does not want to say this was too harsh a sentence given the
          extreme problem. Court may have intervened in Rummel, and used a proportionality theory
          such as per Solem:
            1. Gravity of offense in comparison to severity of punishment
            2. Compare to sentences of similar crime intrajurisdictionally
            3. Compare to sentences of crime interjurisdictionally

    B. What is considered proportional will depend upon your philosophy of punishment.
        a. General Deterrence: Life sentence or whatever is necessary to scare the public
        b. Specific Deterrence: Punishment necessary to rehabilitate and restrain the individual
        c. Retribution: Give punishment proportional to the harm caused and blameworthiness of the
          individual. Adolescents don't have judgments of adults and warrant lesser sentences.

                                          Page 6 of 56 Pages
III. Burden of Proof: Burden to prove facts.

Winship Doctrine: Constitution requires that the state prove its case, which consists of every element of
a crime, beyond a reasonable doubt.

Prosecution has the burden of production and burden of persuasion an all elements of the crime.

    Beyond a Reasonable Doubt (No S.C. ruling on this)
       • Doubt arising from evidence or lack of evidence
       • Doubt for which a juror can give a reason
       • Doubt as to a moral certainty

    1. Burden of Production: Identifies the party at trial on whom is placed the initial obligation to
      provide factual evidence to support the particular legal claim in question. If you want to raise an
      issue, you must bring evidence to prove it. State bears the burden of proof.

        a. The prosecution has the initial burden of production regarding each element of the crime
          charged. The D, in turn, has the burden of producing evidence pertaining to any affirmative
          defenses she wishes to raise.

        b. The prosecution must produce enough evidence that a rational trier of fact can reasonably
          determine that the essential elements of the crime have been proved beyond a reasonable

        c. The judge, not the jury decides whether each party has met its burden of production. If the
          judge determines that the prosecutor failed to meet her burden of production, the D is entitled
          to a directed verdict of acquittal at the end of the prosecution's case.

        d. If the D fails to meet her burden of production regarding an affirmative defense, then the judge
          will not instruct the jury regarding the law pertaining to the defense, and the D will not be
          entitled to have the claim considered by the jury in its deliberation.

    2. Burden of Persuasion: Who must convince the jury of the accuracy of the claimed fact - beyond a
      reasonable doubt. State bears the burden of proof.

        a. Winship Doctrine: A criminal D is presumed to be innocent of the crime charged and the (1)
          prosecution is allocated the burden of persuading the fact finder of every fact necessary to
          constitute the crime charged (2) beyond a reasonable doubt.
            • We require such great proof because we believe that the taking of one's life and liberty is in
               need of utmost protection.
            • "Better to let 10 guilty men go free than to convict one innocent man." - J. Harlan's
               aphorism. It is morally unjust to punish people not guilty of a crime, and guilty people going
               free is the cost of doing judicial business in a society that upholds life and liberty.

        b. Quantum of Evidence Required: When the burden of persuasion is placed on the D, the D
          usually must prove the validity of the claim by the less strict preponderance of the evidence
          standard. Under this test, the D must prove that it is more likely than not (51% sure) that the
          facts support the defense claim. Dressler states that the "moral certainty" language is
          outmoded and that the court is "firmly convinced of the D's guilt" is a better definition.

                                              Page 7 of 56 Pages
4. NYPL § 25 Defenses: Burden of Proof.
       1. People have the burden of disproving a D's defense (other than an affirmative defense)
         beyond a reasonable doubt.
       2. If the D raises an affirmative defense, he has the burden of establishing such defense by
         preponderance of the evidence. (D bears burden of production and persuasion by a
         preponderance of the evidence)

            • Patterson could not constitutionally change the burden of proof for defenses that negate
              an element of the crime, only for defenses that do not negate an element of a crime.
              Statute indicates what is a defense and what is an affirmative defense.
            • A defense that does not negate an element of the crime is a "true defense" and state
              can burden the D to prove them.
                • Patterson v. NY - Note (8)
                • Mullaney v. Wilbur - Note (9)

            Policy of Patterson's Rule
            1. If we make prosecution prove all possible defenses to a crime, no one will ever be
            2. If we recognize affirmative defenses, it is more appealing to legislature because we
              recognize the defense but the D has to prove it. We don't want to completely
              discourage the recognition of a defense by saying that if a state does choose to
              recognize a defense then the π has to prove it, as states will choose not to recognize
              defenses. This is a good compromise.

                                           Page 8 of 56 Pages
I. Presumptions: A presumption is a procedural device which the law eases the burden of a party
   to prove some fact for which it has the burden of persuasion.

    1. Rebuttable Mandatory Presumption: Unconstitutional. Upon proof of the basic fact, the
      effect of the presumption is to shift to the D the burden of persuasion regarding the
      presumed fact. The presumption is mandatory because the jury is informed that upon proof
      of basic Fact A, it must presume Fact B.
        • e.g. The jury is to presume that D intended to kill V if the prosecution proved that D fired a loaded
           gun at V. Note: what if D didn't think the gun was loaded? Jury would be confused that D is guilty
           until he proves himself innocent.
    2. Irrebuttable Mandatory Presumption: Unconstitutional. An irrebuttable or conclusive
      presumption occurs when the jury is instructed not only that it must presume Fact B upon
      proof of Fact A but also that this presumption is conclusive - that the D is not even entitled
      to attempt to rebut it.
    3. Permissive Inference: Constitutional. A permissive presumption is not a true presumption
      and more accurately is described as a permissive inference.
         a. A permissive presumption is constitutional if, but only if, based on the evidence
           presented at trial, the presumed fact more likely than not follows from the basic fact. It
           is not mandatory for the jury to accept it so D is not forced to rebut it. The jury can
           reject inference so no burden shifting problem. Unless the inference established is not
           in accordance with basic principles based on human knowledge, then it would be a
           violation of the Due Process Clause.
    4. MPC: The MPC does not approve of presumptions that formally shift to the D the burden
      of persuasion regarding elements of an offense, but allows permissive inferences.
         a. The MPC does recognize permissive presumptions regarding elements of criminal
    5. Rationality Requirement of Permissive Inferences: There must be a rational
      underlying connection between the facts and the inference. If no rational connection
      between inference and facts it is unconstitutional. Test: "Is inference likely and does it
      accord with common human experiences?
         a. Example: You get into a friend's car. He has a gun locked in his briefcase. It's not
           rational to infer that you knew of the presence of the gun.
         b. Example" Jury instruction that says "a person intends the natural and probable
           consequences of his acts" is an unconstitutional presumption because it shifts the
           burden on mental state to the D. At common law malice can be presumed, after
           Patterson, it cannot, and state must codify.
         c. Example: D picks up a gun at the table and says "Look, a toy gun!" and laughingly fires
           it at V. To allow the prosecution to make a permissive presumption would create too
           high a risk that the jury would accept the judges permission to infer that D had motive
           to kill and will improperly convict D.
         d. Example: Allen v. County Court: A firearm is found in a private auto. Its presence was
           presumptive evidence of possession by everyone in the car. Court upheld the statute
           because it was rational to do so. There may be situations where this would not apply,
           but not here.

2. Jury Notification: A jury can ignore proof beyond a reasonable doubt and still acquit the D. In
  NY judges will never instruct juries of this charge.
    1. A judge cannot overturn a jury's verdict like JNOV
    2. an appeals court cannot convict a D
    3. Even if a jury convicts a D, judge can overturn the verdict by saying no reasonable jury
      could convict the D.

        a. Examples:
            a. How can Lorena Bobbit be found legally insane?
            b. How could Simi Valley jury acquit Rodney King beaters?
            c. Most juries follow the law but it does happen that juries can ignore the evidence
              and acquit the D.

                                         Page 9 of 56 Pages

   A. The principle of legality is that no person may be prosecuted, convicted, or punished for any act
     that was not a crime when it occurred.

       1. Example: D does legal act X on January 1. On January 2, the legislature prohibits X. It would
         violate the principle of legality to prosecute D for her January 1 conduct.
       2. The principle is justified on the basis that it is morally unjust to punish a person whose conduct
         was lawful at the time that she acted, because she did not choose to violate the law.
         Furthermore, a law will not have its desired deterrent effect unless people are put on notice of
         the illegality of the specified conduct.
       3. The common law principle of legality is constitutionally mandated.

           a. The ex post facto clause of the Constitution prohibits legislatures from enacting laws that
             would punish a person for conduct that was lawful at the time of its commission, or that
             increases the punishment for an act committed before the law took effect. (U.S.
             Constitution, Article I, §§ 9. 10-)

           b. The Due Process Clause prohibits a court from retroactively enlarging the scope of a
             criminal law.
                (1) Example: A state trespass statute prohibited entry of a person on private land without permission. D entered private land
                   with per mission, but refused to leave when asked to do so. He was prose cuted and convicted of trespass. A state court
                   justified the conviction by retroactively enlarging the scope of the statute to include within its prohibition the act of refusing to
                   leave private property when requested. This judicial enlargement violated the Due Process Clause, as it failed to give D
                   adequate notice that his conduct was criminal. Bouie v. City of Columbia, 378 U.S. 347 (1964).

   B. A component of the legality principle is that a person may not be punished for an offense
     unless the statute is sufficiently clear that a person of ordinary intelligence can understand
     its meaning. See MPC § 1.02 (l)(d).
       • Palmer v. City of Euclid - Note (6)

       1. If this were not the rule, legislatures could intentionally or by negligent drafting trap an innocent
         person by not providing fair notice.

       2. An unduly vague statute violates the Due Process Clause.

           a. The void-for-vagueness constitutional doctrine ordinarily is not applied strictly. In most
             words and phrases there lurk uncertainties: there is no way to capture through words
             precisely what a lawmaking body intends to prohibit. Furthermore, lawmakers need to draft
             laws with sufficient broadness that they can deal with novel forms of criminal activity.
             However, if the law impinges on an especially valued right, such as the freedom of speech,
             a court will demand greater clarity from the legislature.
           b. A person has sufficient notice as to the meaning of a statute if its wording would put the
             ordinary law-abiding person on notice that her conduct comes near the proscribed area. If
             the statute meets this test, the law-abiding person must investigate the law further, such as
             to determine whether the statute has been clarified by a court, even if she must obtain legal
             counsel to do so.

                (1) Example: The Supreme Court has twice held that a criminal statute that prohibits, without further
                  statutory clarification, "the crime against nature" is not unduly vague.

                      (a) In Wainwright v. Stone, 414 U.S. 21 (1973), it held that had sufficient notice that the sexual acts he committed violated
                         the law because appellate courts had previously so held. D was expected to be aware of the case law.

                      (b) The Court went a step further in Rose v. Locke, 423 U.S. 48 (1975), when it held that D received fair notice that the
                         sexual acts he committed fell within the meaning of the statute, al though no court in the state had previously
                         interpreted the statute to include his conduct. The Supreme Court pointed out that the state supreme court had
                         previously indicated that it would interpret the statute broadly, and courts in other states with a similar statute had
                         prohibited D's conduct.

   C. A corollary of the fair-notice principle is that a criminal statute should not be so broadly worded
     that it is susceptible to discriminatory enforcement by the police.

                                                          Page 10 of 56 Pages
1. Vagrancy laws violated this principle. In the typical vagrancy statute, it was a crime "to be a
  vagrant," which was defined broadly by such phrases as "being an habitual loafer." These laws
  cast a net so large that the police could arrest anyone whom they did not like because of their
  lifestyle or whom the officers wished to harass for other reasons. Consequently, such laws
  violate the Due Process Clause. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

                                    Page 11 of 56 Pages

   A. A general principle of criminal law is that punishment must be proportional to the offense. See
     MPC § 1.02(2)(c). The difficulty lies in determining the meaning of the term "proportional."
      • Harmelin v. Michigan - Note (7)

      1. In a utilitarian system punishment is proportional if it inflicts no more pain than is necessary to
        fulfill its deterrent goal.
      2. Under retributive theory, punishment should be proportional to the harm caused on the present
        occasion, taking into consideration the actor's degree of culpability for the conduct. In such
        circumstances, D "pays her debt to society."
      3. The two theoretical approaches will often result in different "proportional" penalties.

          a. Example: Under so-called "recidivist" or "habitual offender" laws, a person is punished
            more severely for an offense if she is a repeat offender. Thus, a third-time felon might
            receive life imprisonment even if her most recent offense was a minor theft.
          b. Under utilitarian analysis, such punishment may be proportional. Heightened punishment
            may deter would-be repeat offenders from committing further crimes. Alternatively, such
            laws take recidivists, presumably more dangerous persons, off the streets for an extended
            period of time, thereby protecting the community.
          c. Under retributive analysis, recidivist laws might not be proportional, because a wrongdoer
            should receive punishment in proportion to the crime just committed, not for past offenses
            for which she has already been punished or for predicted future crimes.

   B. The Eighth Amendment "Cruel and Unusual Punishment" clause prohibits grossly disproportional
     punishment. However, the Supreme Court's application of this principle has been inconsistent.
      • Harmelin v. Michigan - Note (7)

      1. In death penalty cases, the Supreme Court has held that death is a grossly disproportional
        punishment for the crime of rape, because the latter offense does not involve the taking of
        human life. Coker v. Georgia, 433 U.S. 584 (1977). The Court reached this result, which is
        consistent with retributive theory, although the rapist was a prior murderer/rapist who
        committed the present offense after he escaped prison, and thus constituted a continued
        serious threat to the community.
      2. The Supreme Court will not declare a sentence of imprisonment unconstitutional unless
        objective criteria demonstrate its disproportionality. Even if there are such criteria, the
        justices are hesitant to conduct proportionality analysis.
           a In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme Court upheld a sentence of life
             imprisonment (with the possibility of parole after 12 years) of a third-time minor thief, based
             on a recidivist statute.
               (1) The Court ruled that there was no objective way to determine whether the punishment
                 was too severe. It believed that rational people could disagree as to whether non-
                 violent crimes are always less serious than violent ones. Furthermore, even if the
                 recidivist statute in the present case was more stringent than those in other states, the
                 Court did not believe it was appropriate to declare the sentence unconstitutional,
                 because to do so would violate the traditional notion of federalism, which permits states
                 wide discretion to develop their own sentencing systems.

          b. However, in Solem v. Helm, 463 U.S. 277 (1983), the Court declared unconstitutional a
            sentence of life imprisonment without the possibility of parole of a seven-time habitual
            offender whose last offense was a minor theft, but whose prior offenses included three
              (1) The Court distinguished Rummel on the ground that objective criteria existed in the
                present case to determine the proportionality of the sentence. A significant
                distinguishing feature was said to be that the life sentence in this case did not involve
                the possibility of parole.
              (2) The Court applied three tests to determine whether the punishment was proportional
                to the offense. It compared the sentence (life imprisonment without the possibility of

                                           Page 12 of 56 Pages
          parole) to: the gravity of the offense (theft); the penalties imposed in the state for more
          serious offenses; and the sentence that would have been imposed on D in other states.
          Based on these tests, the Court concluded that the sentence was grossly
          disproportionate to the crime.

c. Harmelin v. Michigan: The court will usually not intervene and question whether a
  punishment is not befitting the crime. Only in the extremely rare instances of severe
  cases where the punishment is obviously grossly disproportionate to the crime , or if
  torture and/or the death penalty is involved ,will the court intervene and use a
  proportionality principle for "cruel and unusual punishment" as per the 8th Amendment.
    1. Scalia: Cruel and unusual punishment of the 8th amendment only refers to crimes
      involving the death penalty. Cruel and unusual is only in relation to torture, and we need to
      promote the concepts of federalism.
    2. Seven justices state there is a proportionality rule and that would invalidate Harmelin's
      sentence, however, since drug trafficking was such a serious problem (as "cattle stealing"
      may have been to a degree) the court does not want to say this was too harsh a sentence
      given the extreme problem. Court may have intervened in Rummel, and used a
      proportionality theory such as per Solem:
        i. Gravity of offense in comparison to severity of punishment
        ii. Compare to sentences of similar crime intrajurisdictionally
        iii. Compare to sentences of crime interjurisdictionally

                                    Page 13 of 56 Pages

   A. A person may not be convicted of a criminal offense unless the prosecutor proves beyond
     a reasonable doubt every fact necessary to constitute the crime.

       1. This rule is constitutionally mandated by the Due Process Clause of the Constitution. In re
         Winship, 397 U.S. 358 (1970).

   B. "Proof beyond a reasonable doubt" is the highest level of proof in the law. It requires the fact-finder
     to have an abiding conviction, to a moral certainty, of the truth of the charge.

       1. The Constitution requires this high burden of proof because "a society that values the good
         name and freedom of every individual should not condemn a man for commission of a crime
         when there is reasonable doubt about his guilt." In re Winship, supra.

   C. The constitutional burden of proof applies only to the "facts necessary to constitute the crime
     charged." The question that remains is what is meant by the word "facts" in the quoted phrase.

       1. In Mullaney v. Wilbur, 421 U.S. 684 (1975), the Supreme Court stated that the prosecutor was
         required to prove beyond a reasonable doubt any fact affecting D's "degree of criminal
         culpability." This appeared to mean that the prosecutor must prove the absence of many, if not
         all, defenses to crimes.

       2. In Patterson v. New York, 432 U.S. 197 (1977), the Court backed away from this language and
         held that the prosecutor is required only to prove every "ingredient" of the offense, by which it
         meant the "elements" of the crime, as distinguished from the defenses to it. A state must prove
         every ingredient of an offense beyond a reasonable doubt, and may not shift the burden of
         proof to the D by presuming that ingredient upon proof of the other elements of the offense.

           a. Policy: If the burden of proof for every recognizable defense was on the prosecution, then
             the prosecution government wouldn't make any defenses statutory. Since we want to
             encourage states to make such defenses we place the burden on the defendant if he
             raises them.
           b. This means that if an offense consists of elements A, B, C, and D, the prosecutor must
             prove beyond a reasonable doubt the existence of each of these matters.
           c. If the legislature were to amend the offense so that its elements are A, B, and C, and
             "absence of D" is an affirmative defense, the prosecutor would only be required to carry the
             burden of proof regarding A, B, and C
           d. Example: Suppose that a legislature defined murder as "the unjustified intentional killing of another human being." Under this
              statute, the prosecutor would have to prove beyond a reasonable doubt that D: (1) killed a human being; (2) that she did so
              intentionally; and (3) that she did not have a justification for killing the human being.

                (1) If D alleged that she killed V in self-defense, a justification defense, the prosecutor
                  would have to prove beyond a reasonable doubt that D did not act in self-defense.
                (2) If the legislature did not want prosecutors to carry the burden of proof regarding
                  defenses to murder, it could amend the murder statute by deleting the word
                  "unjustified." Defendants could then be required to carry the burden of proof regarding
                  justification defenses, such as self-defense. See Martin v. Ohio, 480 U.S. 228 (1987).

       3. Although the legislature is not constitutionally required to allocate the burden of persuasion to
         the prosecutor regarding defenses to crimes, it may do so if it wishes.

           a. The Model Penal Code requires the prosecutor to prove every "element" of an offense
             beyond a reasonable doubt. MPC § 1.12(1). However, the Code defines "element" broadly
             to include the absence of any excuse or justification defense. MPC§ 1.13(9)(c). Therefore,
             the MPC places a greater burden of proof on the prosecutor than is constitutionally

                                                         Page 14 of 56 Pages
II. ACTUS REUS: Generally speaking, crimes have two components: The actus reus, or the physical or
external portion of the crime; and the mens rea, the mental or internal feature. Actus reus requires proof
of a voluntary act by the D or occasionally, an omission by her when she has a legal duty to act
(the actus) that results in the harm to society prohibited by the offense in question (the reus).

    The actus reus of a crime consists of 2 elements, BOTH which must be proved by the

              1. There must be a "voluntary act" by the defendant; or an omission to perform an act,
                under circumstances in which the defendant had a lawful duty to act; AND

              2. a social harm.

              • Best understood if one remembers the simple point that a person is ordinarily not guilty of a crime
                 unless she does something wrong & does it with a wrongful state of mind-->the actus reus is the does
                 something wrong aspect of the crime.

    A. All crimes consist of:
        1: A ct - actus reus                                                                Conduct
        2: Mental State(s) - mens rea                                                       Conduct
        3: Consequences or circumstances Reas                                               (social harm)
        4: Consequences and circumstances Reas                                              (social harm)

        • Always start your analysis with the definition of the crime.

        1. Example: NYPL 125.27 Murder in the First Degree
            Act: Anything that causes death
            Mental state: Intent to cause the death of another person
            Causation: Death of person (consequence)
            Victim is a police officer (circumstance element).
            Police officer performing his duties at the time of the killing (circumstance element)
            Mental State: Actual knowledge victim was a police officer.

        2. Example: NYPL 165.40 Criminal Possession of Stolen Property.
            Act: Possession of property
            Circumstance: Property is stolen.
            Mental State: Knowing property is stolen
            Mental State: Intent to benefit one's self.

              Note: There is no consequence. This is not a 'results' crime.


    A. In general, a person is not guilty of a criminal offense unless his conduct includes a
      "voluntary act." (e.g., MPC § 2.01(1). see NYPL § 15.00, § 15.10)

        Analysis for exam:
           1. Was there a voluntary act?
           2. Can we attach a mental culpability to the act?
        State v Quick: D was convicted of the unlawful manufacture of intoxicating liquor. Court held that the evidence overwhelmingly shows an
           intention on the part of the π to manufacture liquor. But intent alone, not coupled with some overt act toward putting the intent into effect
           is not recognizable by the court, so reversed for D.

        NY Penal Law §15.00 Culpability; definition of terms
           (1) Act; "means a bodily movement"

                                                             Page 15 of 56 Pages
       (2)"Voluntary Act "means a bodily movement performed consciously as a result of an effort or
         determination, and includes the possession of property if the actor was aware of his
         physical possession or control thereof for a sufficient period to have been able to terminate.

   NYPL §15.10: Requirements for criminal liability in general and for offenses of strict liability or
    mental culpability.

       "The minimal requirement for criminal liability is the performance by a person of conduct
         which includes a voluntary act or the omission to perform an act which he is physically
         capable of performing.
           Hypo 1: A is driving a car, B as passenger, and A accidentally drives onto the property of C, and is charged with criminal
             trespass. B was not guilty because he was not there by choice and thus there was no voluntary act.

           Hypo 2: You are drunk in your home and the police come to arrest you for other charges, they take you outside and then
             charge you with the other offense if public drunkenness. They can't charge you with this because you did not voluntarily go
             into the public. You can't be charged with public drunkenness if the cop took you outside in public.

       a. Broad meaning: A person acted voluntarily if she can be blamed for her conduct. That is
         she h ad sufficient capacity and opportunity to make a reasoned choice on how to act. A
         moral judgment by society regarding the degree of free choice the D possessed when she
         acted. (Not voluntary if cops take you into street when you are at home privately in an
         intoxicated condition.)
       b. Narrow Meaning: Willed contraction of a muscle. A voluntary act that is part of the actus
         reus component of all crimes. A movement of the body which follows our volition. Human
         behavior in which persons consciously make decision to move a part of the body, and then
         that part of the body invariable and immediately follows our wishes or desires for those
         same movements. Any bodily movement that occurs in the absence of a conscious desire
         is involuntary.

B. A voluntary act is a willed muscular contraction or bodily movement by the actor. (See MPC
  § 1.13(2).)

   1. The slightest muscular contraction or bodily movement constitutes an act. Depending on the
     facts of the case, a mere movement of a finger (as in pulling the trigger of a gun in a homicide
     prosecution) is sufficient.

   2. An act is "willed" if the bodily movement was controlled by the mind of the actor.

       a. Some bodily movements are the result of impulses from the brain that direct the person's
         actions. But, the brain may send "incorrect" impulses, as when a person suffers from an
         epileptic seizure. Such acts are controlled by the brain, but not by the mind, and thus are
         "involuntary" acts.

       b. The difference between a willed (voluntary) act and an unwilled (involuntary) act may be
         sensed if you consider the difference between the statements: "I raised my hand" and "My
         hand came up." In the first case, the speaker is suggesting that he chose to raise his hand;
         it was a decision he made. In the second case, the speaker implies that the hand rose
         without his volition, perhaps unconsciously or as the result of a seizure.
           State v Taft: D was charged with DWl, the statute made it an offense "to drive any vehicle on any highway of a state while
              under the influence of intoxicating liquor". D claims he got in the car to wait for someone and the brakes accidentally
              released. D claims that the vehicle would have to be in motion to constitute "driving." Held: D as the mere movement of a
              vehicle does not necessarily in every circumstance constitute a "driving" of the vehicle. To drive a vehicle necessarily implies
              a driver or operator and an affirmative or positive action on the part of the driver.

                • If a vehicle is moved by some power beyond the control of the driver, or by accident, it is not such an affirmative or
                    positive action on the part of the driver as will constitute a driving of a vehicle within the meaning of the statute. The
                    statute forbids "driving" not merely "getting into the car" thus if you believe D, the movement of the car was not part of
                    a affirmative or voluntary act.
                • Another state made the offense "actual physical control of a motor vehicle while under the influence of intoxicating
                    liquor." Solves this problem.

                                                   Page 16 of 56 Pages
    3. Most human acts are voluntary. Therefore, it is easier to provide examples of involuntary acts.
      They include: reflex actions; seizures; convulsions; and acts that occur while the person is
      unconscious or asleep. (MPC § 2.01(2).)

    4. An act is not involuntary merely because the actor does not remember doing it.
         a. Example: D is driving his automobile to law school. Deep in thought about his upcoming criminal law class, he changes lanes.
            Later, D notices that he is in a different lane and thinks to himself, "Well, I did an involuntary act."
         b. D is wrong. His act was voluntary: he may not remember that he changed lanes; he may have done so out of habit, but the act of
            changing lanes was doubtlessly an act controlled by his mind.

    5. An act is not involuntary merely because someone pressured the actor to do it.
         a. Example: C points a gun at D and orders him to steal V's watch. D does as he is ordered.
         b. Despite the deadly threat, the theft was the result of a "voluntary act" by D. Although he acted under extreme pressure, the
            muscular contractions that went in to stealing the watch were willed, in the sense that his mind told him that it was preferable to
            steal the watch than to die. D will be acquitted of the theft on the grounds of duress, a criminal law defense, but the "voluntary act"
            requirement is met.

C. It is important to realize that to be guilty of an offense, it is sufficient that the person's conduct
  included a voluntary act. It is not necessary that all aspects of his conduct be voluntary.

    1. Rule: One who has a conscious mind and has a choice to do an act and is in control of a situation, may be
       liable for his foreseeable involuntary acts in the future.
    People v. Decina,: D, who knows that he is an epileptic liable to have a seizure, drives his car and kills pedestrians while suffering from a
      seizure. D may properly be convicted of the offense of "negligently driving a vehicle, so as to cause the death of a human being."
      Although the deaths occurred as the immediate result of an involuntary act, a seizure, the actus reus of the crime for which he is
      charged involves "driving a vehicle so as to cause the death of a human being." Therefore, D's relevant conduct included the voluntary
      act of getting into the car, turning on the ignition, and driving it. D knew full well that his conduct may very well cause such an accident
      and he is liable for his decision and act on that decision to get into the car and drive it. People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799
      (1956). Rule: Not every act up to the moment of actual harm has to be voluntary - just a voluntary act must be "included" as per NYPL §
      15.10. Note in subway example where crowd forces you to push someone onto the platform you did NOT have a choice. Today we
      would probably convict D of recklessness since he had awareness.

D. A voluntary act is a prerequisite of criminal responsibility for various reasons.

    1. Mere thoughts are never punishable as crimes. The requirement of an act assures that
      persons are not punished for bad thoughts alone, a morally undesirable result in a society that
      values individual freedom. Even the crime of conspiracy and the various crimes of attempt exist
      only where the defendant has gone beyond thoughts and committed an overt act. Refusal to
      punish mere thoughts arises from fear of thought control as well as from practical problems of
      enforcement and proof. State v. Quick.

    2. It is sometimes claimed that a person who acts involuntarily cannot be deterred. Therefore, it is
      useless to punish the involuntary actor.

         a. However, although persons cannot be deterred during their involuntary conduct, they may
           be deterred in some circumstances from placing themselves in a situation in which their
           involuntary conduct will cause harm to others, such as in Decina, supra.

    3. A more compelling reason for the voluntary act requirement is that blame and punishment
      presuppose free will: a person does not deserve to be punished unless he chooses to put his
      bad thoughts into action. retributivist theory.

E. Involuntary acts: examples from MPC § 2.01 at common law:
     • Reflexes or convulsions
     • Acts performed during sleep/unconsciousness
     • Hypnotic conduct
     • Movement not of the effort or determination of the actor

G. Voluntary Act-Apparent Exceptions:

                                                        Page 17 of 56 Pages
       1. Poorly Drafted Statutes: Occasionally a criminal statutes is drafted in a manner that facially
         appears to dispense with the requirement of a voluntary act.
       • e.g. crime for unmarried persons "to be found in bed together" may convict one who while
         unconscious is placed into the bed of another.

       2. Vagrancy offenses: Vagrancy statutes punished individuals for the status of being a vagrant,
         not for any particular act
       3. Crimes of possession: On their face, these penal provisions do not seem to require the D to
         act, only that she passively possess the item in question.

   H. Voluntary Act-Constitutional law: The US. Supreme Court has never explicitly stated that the
     common law requirement of a voluntary act is a prerequisite to the conviction and punishment of
     the D.
   E. Voluntary Act-MPC: The MPC incorporates the common law requirement that a person is not
     guilty of an offense unless his liability is based on a conduct that includes a voluntary act or
     omission to perform an act of which he is physically capable.
       1. The MPC defines the term 'act' as does the common law, as a bodily movement whether
          voluntary or involuntary. It does not define the term 'voluntary.'


   Requires 2 parts:
      1. Act of taking the item into your possession
      2. Voluntary omission of not getting rid of it.

   A. States commonly prohibit the status of possession of certain articles, such as illegal drugs,
     obscene materials for dissemination, or burglar's tools. On its face, these statutes do not require
     proof of any act by the defendant.

       1. Example: D could be in possession of an illegal drug because X "planted" it on D while he was
         asleep. On its face, D is guilty of possession of the illegal drug.

   B. The inequity of such a result is avoided by courts and modern penal codes by defining
     "possession" to mean that the person knowingly procured the article in question or failed to
     dispossess himself of it after he became aware of his control over it. (MPC § 2.01(4).)

       1. In light of this interpretation, "possession" only arises if the person voluntarily took control of
         the object (the voluntary act); or, alliteratively, "possession" can be explained in terms of an
         omission, in which the person omitted his legal duty to dispossess himself of the article.

   C. Dressler: Virtually all states punish for the possession of contraband or certain instrumentality's.
     On their face these statutes do not require the D to act, only to passively possess the items in
     question. Crimes of possession are incomplete or "inchoate offenses". Their real purpose is to
     provide law enforcement officials with a legal mechanism by which to stop a person from
     performing some later more dangerous act (ie:use or sale of narcotic).

       • Possession crimes do not necessarily dispense of the voluntary act requirement.
         Ordinarily courts interpret these laws strictly to require proof that the D procured or knowingly
         received the property possessed (a voluntary act), or that she failed to dispossess herself of
         the item after she became aware of its presence.

       • Mere possession of an object may sometimes constitute the necessary criminal act. ie: possession
         of narcotics frequently constitutes the necessary criminal act. However, the possession is almost always
         construed so as to only include conscious possession. Thus if π fails to prove that π knew he had
         narcotics on his person there can be no conviction.

                                              Page 18 of 56 Pages

   NYPL §10.00 Definitions of general use:
   (8) possess: means to have physical possession or to exercise dominion or control over
     tangible property.

   NYPL §15.00 Voluntary act: Includes the possession of property if the actor was aware of
    his physical possession or control thereof for a sufficient period to have been able to
    terminate it.

   MPC Article 2 § 2.01 (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.

       • The D does not need to have actual knowledge that the object he possesses is illegal. Law only
          requires that D is aware that he has possession of an object and exercises dominion over that

       • Actual control without knowledge is NOT possession.

       • Requirement of Control: in order to be in possession of drugs the D must not only be aware of their
          presence, but must have control over them. In addition, he must have sufficient time to terminate
          possession for there to be found the requisite "possession." Thus one will be liable for possession of a
          substance when you have possessed it long enough to get rid of it.) This rule is hard to interpret when
          several people are found are together in a room and drugs are present, most courts have held that
          anyone in the room can be found to have been in possession.

       1. Found paper bag on street, look inside and see plastic bag with white powder in it, turns out to be heroine. Rule: You have
          possession of the heroine under §10.00 because you exercised dominion or control, it was also a voluntary act because the
          person knew he had physical possession. You are not guilty of a crime in this case because although you have the actus reus
          elements of the crime, the mens rea for a crime is absent. You need to know what you have to be guilty for mens rea (not actus
          reus element).

       2. Rule: Your possession is only voluntary when you are aware of it and you can terminate your possession. Go to a party and while
          there someone plants drugs in your pocket. Rule: Under §10.00 you possess drugs, however, you cannot be guilty because there
          is no voluntary act, you don't realize you possess them so you have not been able to terminate possession yet. This is like the
          Property I case where the worker found a ring in the owner's pool. The owner of the ring owned the ring even though he didn't
          know it was in his possession in his pool. In property law you need only constructive knowledge, but in criminal law you need
          actual knowledge.

       3. If you were drunk and discovered drugs in your pocket and continued to hold not knowing what it was. You have possession and a
           voluntary act.

   1. Rule of innocent possession: You have possession of the object - voluntary act and mens rea
     to possess, but you are not guilty because you are not morally culpable. e.g. You find an illegal
     gun and decide to drive it directly to the police station. Here you do have possession, but it is
     innocent possession as you are not morally blameworthy. Penal law has built in requirement
     that the person be morally culpable. Note: Anicle 15.00 of the NY Penal Law deals with

   2. Constructive Possession: To qualify as a voluntary act you must be aware that you
     exercise dominion and control.

       State v. Kimbrell: Rule: Mere presence at a transaction is insufficient to constitute constructive
         possession, but exercising dominion or control over something you are aware of, with enough time to
         terminate is constructive possession.
       Facts: Undercover police officer sets up a drug deal with D's husband in the house and he sees cocaine and scales to weigh it on
         kitchen table. D's wife was aware of past deals but never participated in them directly. The husband tells the wife to watch the toot
         while he and cop go outside. Does this constitute possession of D wife?
       Held: Anyone that walked in the house could see the drugs in the kitchen. There was no proof she physically possessed the drugs,
         but she may have had constructive possession over the drugs by watching them and there was thus a voluntary act. π argued that
         her mere presence alone was sufficient to constitute possession. The court rejected this argument, because mere presence does
         not establish awareness of her control over the drugs. If she were alone in the room with the drugs, but did not know the drugs
         were in the room she would have actual control but without awareness there can't be a voluntary act. Thus, the same facts that
         establish possession establish the mens rea in this case, that she had knowledge to commit the mental act. She had good reason
         to know under the circumstances, especially knowing it was called toot.

                                                     Page 19 of 56 Pages
           The problem in this case is that the court did not instruct the jury that "mere presence" is not a crime. If she came into the kitchen on
             her own and didn't know the powder was cocaine, then this would not satisfy the requirements for a voluntary act. Presence and
             awareness and dominion or control.

           HYPO 1: Person walking down street asks you to watch his suitcase, it turns out it is full of cocaine. Rule: You have constructive
             possession of the drugs, but don't have a voluntary act because you are not aware of your possession - no voluntary act. Open
             bag and see drugs your act has become voluntary because now you have become aware.

           Presumptions: The prosecution's burden of proving knowing possession is frequently made easier by
             statutory presumptions. e.g. NY Penal Law §265.15 (3) provides that if an illegal weapon is found in
             an automobile, all persons in the car shall be presumed to be in possession of the weapon, unless it
             is on the person of one of them.
                1. D can always overcome such a presumption.
                2. Such presumptions have occasionally been held unconstitutional. The test generally has been
                   whether the presumption corresponds to a logical and empirically supported inference.

IV. VOLUNTARY ACT; Constitutional LAW

   A. The Supreme Court has not explicitly held that punishment of an involuntary actor is
     unconstitutional. However, in various settings it has invalidated statutes that prohibited a "status" or
     "condition" rather than conduct.

   B. It is unconstitutional under the Eighth Amendment "Cruel and Unusual Punishment" clause
     to punish a person for being "addicted to the use of narcotics." Robinson v. California, 370
     U.S. 660 (1962).

       1. The Supreme Court ruled that a state lacks constitutional authority to punish a person for the
         illness of narcotics addiction, just as "even one day in prison would be cruel and unusual
         punishment for the 'crime' of having a common cold."
           California Legislature enacted a statute making it an offense punishable by incarceration for 90 days to one year for a person "to be
             addicted to the use of narcotics". No act by D, only the D's present status of condition as a drug addict was required for conviction.
             Rule: Supreme Court invalidated the law as cruel and unusual punishment in violation of 8th and 14th Amendments. Courts could
             not punish the addiction. By requiring the legislature to deal with addiction in a civil rather than a criminal context the court invoked
             retnbutiva rather than utilitarian values of punishment. Retnbutivism is based on the premise that punishment should not be
             inflicted absent morally wrongful conduct.

       2. In contrast, in Powell v. Texas, 392 U.S. 514 (1968), the Supreme Court upheld the conviction
         of a person charged with the crime of being found in a state of intoxication in a public place.
         Note that this case did not overrule Robinson.

           a. Although D asserted that he was an alcoholic and, therefore, should not be punished under the
              principles of Robinson, the Court distinguished Robinson on the ground that D was not prosecuted
              here for his alcoholism, but rather for the act of getting intoxicated and going into a public place (the
              actus reus of the crime). Thus he was convicted for his act of going to a public place, and not his
              condition, being intoxicated. Furthermore, the evidence in the case indicated that D's first drink of the
              day was voluntary.

           b. All agree that you may punish acts that are not a symptom of the condition. e.g. you can punish a
              narcotics addict for committing a burglary in order to pay for his addiction.

           c. The court hesitates to establish rules of criminalizing responsibility. NY has decriminalized public
              intoxication and now places them in shelters.

           d. RULE: You cannot dispense with the actus reus (requirement of an act) for it to be criminally
              punishable. (Retributivists couldn't punish for no wrongful act).


                                                          Page 20 of 56 Pages
A. The general rule is that a person is not guilty of a crime for failure to act, even if the failure
  permitted harm to occur to another, and even if the person could have acted at no personal
  risk to safety.
    1. Example: D, an Olympic swimmer, stands by and watches V, a small child he does not know, drown in a wading pool. D's responsibility,
       if any, for V's death would have to be grounded on the theory that he did not come to V's aid, an omission. Although D may have had a
       moral duty to act, he is not guilty of any crime because he lacked a legal duty to act.

B. Various controversial reasons are given for the omission rule.

    1. It is too difficult to prove that a person who failed to act had the requisite mens rea for an offense. For
       example, we can reasonably infer criminal intent when a person puts a loaded gun to the head of another
       person and voluntarily pulls the trigger. However, if D fails to come to another's aid, it is difficult to know
       why he stood by.
    2. Difficult line-drawing problems arise in omission cases. Suppose that fifty strangers stand by silently while
       X assaults V. Would all fifty persons be guilty of assault due to their omission? If not, how do we sensibly
       draw the line?
    3. In a society premised on individual liberties, the criminal law should be used to prevent persons from
       causing harm to others, but it should not be used to coerce persons to act to benefit others.

C. Exceptions: Omission of an act that makes one criminally responsible.

Notwithstanding the general rule, a person has a legal duty to act in various circumstances, if
 he was physically capable of doing so and is aware of the circumstances. (MPC § 2.01(1).)

• New York Penal Law §15.00 (3) Omission: means a failure to perform an act as to which a duty of
  performance is Imposed by law.

    1. Statutory Duty: Some statutes create a duty to act.
         a. Example: States commonly require parents to provide food and shelter to their minor children. Failure to do so is a crime. (MPC §
         b. failure to pay taxes
         c. Failure to stop after involvement in a traffic collision
         d. Regina v Downes: D's child was 2 years old and wasting away for 9 months before his death. D's failed to provide medical help for
             their minor child because of their religious beliefs, and provided the child with a ridiculous diet provided by the church elder who
             thought it was appropriate for the illness. The child died. Rule: The statute creates legal duty to provide medical care for a minor
             child (and may have already been a common law duty). One's religious beliefs are no excuse for breaking the law. Note: if child
             would have died even if brought to doctor there is no conviction, because failure to provide medical help did not cause death. An
             omission to do a duty proscribed by statute is a constitutional crime. The state created this duty, but it does require causation (one
             cannot be responsible for the omission if he did not know the child was sick but later it turns out that way.)
         e. NY Penal Law § 260.15: Endangering the welfare of a child defense: In an action for endangering the welfare of a child it is an
             affirmative defense that the person charged with the care or custody of the child is "a member or adherent of an organized church
             or religious group the tenets of which proscribe prayer as the principle treatment for illness; and treated or caused such child to be
             treated in accordance with such tenets."
         f. Commonwealth v Teixiera: Rule: A person may not be punished for a failure to perform a legal duty if
            he has not the ability to do so. D fathered illegitimate child with girl he met hitchhiking and was convicted of failing to
            support the child and mom for 3 years. Three elements required for conviction were (1) knowledge of the illegitimate child (2)
            actual parentage (3) willful failure to support. This was reversed because the π failed to establish that he had the ability to support
            the child, and this must be proven before they could show that he could have paid but didn't and therefore a willful act. Analogous
            to Rex v. Russel, if he could not swim he still had a duty to do whatever a courts be was capable of such as getting a lifeguard, not
            criminally liable for failure to take actions you are incapable of taking. (This is like the baby that is killed by the father in another
            enclosed room in the house while the mother is locked in a second room. She can't be punished for the omission to protect her
            kids if she cannot perform the act.)

    2. Status Relationships: A person has a common law duty to protect a person with whom he
      has a special status relationship.
         a. The status relationships that create this duty tend to be those in which a dependent or interdependent relationship exists between
            the parties, such as parent-to-child, spouse-to-spouse, and master-to-servant.
         b. Example: If parents fail to obtain medical attention for their sick child, they may be guilty of criminal homicide if the child dies as
            the result of their failure. State v. Williams, 4 Wash.App. 908, 484 P.2d 1167 (1971).
         c. Biddle v Commonwealth:
         Rule: The kind of penalty resulting from an omission depends upon the definition of the elements of the crime.
         Rule: For criminal liability to be based upon an omission there must be a breach of a legal duty.
         Facts: Woman failed to feed baby and it died of malnutrition and neglect. Her husband had been accusing her of having the baby
            with another man which distressed her, and her care for the child seemed to vary with her spirits. Issue arises as to whether crime
            is murder or manslaughter. Holding was manslaughter. Rule: Crimes committed by omissions will depend on the mental state and

                                                        Page 21 of 56 Pages
        the definition of the applicable crime. The omission to care for the child here was severe neglect (manslaughter) but not intentional
        or malicious omission of the duty (manslaughter). Note: The state statute didn't state exactly whether this was a crime for murder
        as murder required "malice aforethought" - therefore the court looked to the common law for analysis as to what the mental state
    d. Rex v Russel: D's wife cornuted suicide by drowning herself and her children, the D stood by and watched. Rule: As the legal
        guardian of the children the D had a duty to protect them from harm, it is irrelevant that he did not have control over his wife's acts
        because if a third person had attempted to drowned his children he would still have a duty to protect them under the common law.
        There would not be a cornmon law duty if the children were not his own because then there is no relationship creating a duty. If
        Russel knew his wife was suicidal and they both took the kids to the beach, he gets drunk and falls asleep, is he liable? Yes, he
        was on notice of her suicidal tendencies and thus failed his duty of vigilance. At common law one had "control" over his wife and
        the judge used this to stretch liability of her death upon him since it seems justifiable.
    e. Grandmother baby-sitting a child she gets drunk and fails to realize that the child is suffocating, although its screams could be
        heard throughout the neighborhood. She is guilty of manslaughter, in caring for a small child she had a duty of vigilance. Cornell v
    f. Davis v Commonwealth: D was convicted of involuntary manslaughter of her mother who died of starvation and pneumonia. D's
        mother was completely disabled and senile and the D received her social security and was supposed to have cared for her but the
        house was freezing cold and she hadn't been fed for about a month. Trial court held that D was criminally negligent in failing to
        provide her mother w/heat, food, Liquids and other necessaries. The issues presented are whether D had a legal duty to care for
        her mother and whether she breached the duty by conduct constituting criminal negligence.
           Rule: The D had no legal duty based on a blood relationship, however. she told people that she had sole responsibility for the
               care of her mother, thus she voluntarily assumed the duty and deterred others from helping, as a result she is criminally
                   • Suppose niece lives in the same home with her aunt is there a common law duty to care for her aunt? Not based on any
                      blood relationship, but the English common law held that under the nature of the living arrangement of mutual
                      dependence there was a legal duty.
                   • Host invites guest for dinner, guest gets ill and host puts him in another room and fails to provide help. The host has a
                      legal duty to provide medical help. Same as college roommate hypo where a roommate sees that his friend is ill and
                      they are in a locked room. Does the roommate have a duty to alert someone or call a doctor? Quite possibly since they
                      may have a special relationship with one another.
                   •2 friends hiking to top of mountain when one gets hurt. One hiker may have a duty to the other due to a special
    g. Joel Steinberg Case: small child illegally adopted by two people not husband and wife, the child was beaten to death by Steinberg
        while the wife stood by and watched. She had no legal relation to the child can she be held guilty for her failure to act? Yes. she
        voluntarily assumed the duty of care and could have been held liable for her failure to act. Her defense was the battered wife
        syndrome, that she was so terrified, she was physically incapable of acting. It worked as a defense.
           • If Hedda Nussbaum had merely fallen asleep while she knew Joel may have been beating the kid to death and she could
               have acted, then in that case she may be liable. One must have a culpable mental state together with an omission to be
               liable. Hedda should really have been liable because she could have picked up a phone, but the prosecution really dropped
               charges because they wanted her as a witness against the far more culpable individual.
    h. People v. Beardsly: man wants to break off a relationship with a woman, she takes poison, he merely puts her in another room
        where she dies. Rule: No murder in this case, because he had no legal duty to help her. Case would probably come out different

3. Contractual Obligation: A person may have a contractual duty to act.
    a. Example: A babysitter has an implied contract to protect his ward. Doctor-patient relationship.
    b. Rescue Statutes: Similarly, a lifeguard has a contractual obligation to come to the aid of persons in jeopardy in the water. Some
       states require other people to rescue so long as they will not risk their own life.
    c. Employer/Employee Relationship. Moreland v State: D's chauffeur drove recklessly while D was a passenger. The chauffeur
       caused a fatal accident, D is charged with involuntary manslaughter (involuntary killing of a human being without intention to do so
       but in commission of some unlawful act - Georgia law). D convicted and chauffer fled and was gone. Rule: D had a legal duty to
       control the behavior of his employee and to prevent him form causing harm to others. D failed to fulfill his duty.
    • Another relationship such as this is parent child, a parent has a duty to control the a courts of his child, failure to act may result in
       criminal responsibility.
          • Hypos: Taxi driver is driving crazy while you are a passenger and kills someone? You are not liable because you don't have
              the legal control over the taxi driver that Moreland had.
          • A offers B a ride home, A drives in a criminally negligent manner, there is no duty on B's part because he has no control over
          • If B drove A's car in a criminally negligent manner while A sat and silently watched? There is a duty on A's part not to allow his
              car to be driven in a criminally negligent manner, thus he has a duty to do whatever is physically possible to prevent this.

4. Voluntary Assistance: One who voluntarily assumes the care of another must continue to
  assist if a subsequent omission would place the victim in a worse position than if the good
  Samaritan had not assumed care at all.
    a. Example: D takes V, a stranger, into his home to provide care. V becomes critically ill. D does not aid V, who dies. By assuming
       care and secluding V in his home so that V could not get other help, D had a duty to assist. See Cornell v. State, 159 Fla. 687,32
       So.2d 610 (1947).
    b. Jones v. US:
    Mother of children agreed to pay D third party for care of son Robert, but not for child Anthony which subsequently died. Both were at
       D's home and question as to how long the contract of $72/month care was supposed to run, and further evidence seemed to
       indicate that the mother of the children was living with the D and the kids. Issue was whether the D either had a contractual duty to
       care for Anthony, and if not, whether she had a duty to care based upon the exception of voluntary assistance. Court said that
       since mother lived with them, she had the duty to care for the child as per the status relationship omission.

5. Creation of Risk by D: One who creates a risk of harm to another must act to prevent ensuing
  harm, at least if the original risk-creation was wrongful.

                                                   Page 22 of 56 Pages
           a. Example: If driver D negligently hits V, a pedestrian, D must come to V's aid. If he does not, and V's injuries are aggravated by the
              delay in obtaining medical care, or if V dies, D may be criminally responsible for the resulting harm.
           b. Van Buskirk v State: Rule: One who negligently places another in a position of peril where it is reasonably foreseeable that he will
              be injured by subsequent harm, the D is liable for injuries if they occur. Facts: D and her boyfriend were driving on a highway and
              had an argument, she made him get out of the car and she "accidentally" hit him and he couldn't get up, then drove away leaving
              him in the middle of the street. Charged with second degree manslaughter which is per Oklahoma statute: "Every killing of a
              human being by the act, procurement, or culpable negligence of another...which isn't first degree murder or manslaughter is
              second degree manslaughter." Rule: She is criminally liable because she created the foreseeable risk or peril and thus had a duty
              to help him. She is not being punished for creating the situation, she is being punished because she could reasonably have
              anticipated that another vehicle might strike him, thus created a foreseeable risk and there was a duty to come to his aid. Note: if
              D did not realize she struck the D, no liability because she was unaware of factors which gave rise to her duty to act.
                 • Suppose in Van Buskirk witness to the accident instead of trying to help watches the victim get run down?-no criminal liability,
                    because there was no legal duty. Suppose he walks over to victim to help and realizes it is his arch enemy and then refuses
                    to aid? If he has not yet provided any sort of assistance he has not voluntarily assumed care, thus no duty. But if he
                    provided the slightest bit of assistance he would have had to follow through. Also if others had passed by relying on his
                    providing the victim with assistance he would be liable because his conduct deterred others form rendering assistance.


   A. A person is not guilty of an offense unless his voluntary act (or omission, if he had a duty to act)
     causes social harm. An actor must do more than merely bad thoughts - the reus of the crime must

   B. "Social harm" is the destruction of, injury to, or endangerment of some socially valuable interest. It
     may also be defined as negation, endangering, or destruction of an individual, group, or state
     interest which was deemed socially valuable.

       1. The word "social" is used in the term "social harm" as a reminder that a crime is a wrong
         committed against the whole society and not simply against a single person.

       2. The "social harm" of an offense is identifiable by the elements of the crime that indicate the
         external conduct that constitutes the crime.
           a. Example: Burglary is the "breaking and entering of the dwelling house of another at night, with the intent to commit a felony
              therein." The social harm occurs when D "breaks and enters the dwelling house of another at night." If he does so as the result of
              conduct that includes a voluntary act, the actus reus of burglary is proved.

       3. Social harm need not be tangible. There is harm merely in endangering a socially valuable
           a. Example: States commonly prohibit "driving a motor vehicle under the influence of alcohol." One who drives in this manner is guilty
              of the offense even if he did not physically harm anyone or anything. The "social harm" of this offense is that driving while
              intoxicated endangers other persons' property and physical well-being.

   C. Although the definition of each crime indicates the particular social harm proscribed, the
     actus reus of an offense is divisible into three general categories.

       1. Result elements (or crimes).

           a. Some crimes prohibit specified results. For example, murder prohibits the "result" of a
             death of a human being.

       2. Conduct elements (or crimes).

           a. Some crimes prohibit specified conduct, whether or not tangible harm results thereby. A
             law prohibiting "driving under the influence of alcohol" fits this category. Defines the crime
             in terms of harmful conduct other than harmful results. The social harm of the offense is
             that the physical well being of person and property are seriously jeopardized by the

       3. Attendant Circumstance elements.

                                                         Page 23 of 56 Pages
            a. Frequently, a "result" or "conduct" is not an offense unless certain "attendant
              circumstances" exist. An "attendant circumstance" is a fact that must be in existence at the
              time of the actor's conduct, or at the time of a particular result, without which the conduct or
              result is not a crime.
            b. Example: Sexual intercourse by a man with a woman does not constitute common law rape unless certain attendant
               circumstances exist: that the victim is a "woman, not his wife"; and that she did not consent.

            c. The social harm of a crime does not legally occur unless certain facts attend the proscribed
               conduct or result.
            i. Example: Burglary: The breaking and entering of the dwelling house of another at night.
               The proscribed conduct is breaking and entering. The social harm has not occurred unless
               the conduct takes place at night and is in the dwelling house of another. Night and dwelling
               house of another are the attendant circumstances.



   A. "Mens rea" has a general and a specific meaning. Both usages of the term are found in the
     literature and court opinions. An act does not make someone guilty unless the mind does.

   B. Broadly speaking: to say that a person has acted with "mens rea" means that she committed the
     actus reus of the offense with "a vicious will," "an evil mind," or, more generally, "a morally
     blameworthy" or "culpable" state of mind. The general notion of moral blameworthiness.

       1. Under this definition, a person is guilty of an offense if she committed the actus reus with any
         mental state that demonstrates her moral culpability.
            a. Example: D has non-consensual sexual intercourse with V, a woman not his wife, incorrectly and recklessly believing that V
               consented to the sexual act. On these facts, D committed the actus reus of rape with "mens rea" in the broad sense of the term:
               as his belief regarding V's "consent" was reckless, he possessed a morally blameworthy state of mind.

   C. Narrowly speaking: "mens rea" exists if the person commits the actus reus of the offense with the
     particular mental state provided in the definition of the offense.
       1. Example: Assume that "murder" is defined by a state as "intentional killing of another human being." D recklessly, but unintentionally,
          kills V. Under the narrow meaning of "mens rea," D lacked the requisite mens rea of murder, as the offense by definition requires proof
          of "intent."

   D. It is accurate to use the word fault to describe what crimes require in addition to the act. Some
     crimes do not require a mental awareness (criminal negligence). There are 3 categories of crimes
     that require fault:

       1. objective
       2. subjective
       3. no fault


   A. Utilitarian: It is frequently asserted that a person who commits the actus reus of an offense
     without a mens rea is not dangerous, could not have been deterred, and is not in need of reform.
     Therefore, her punishment would be counter utilitarian.

       1. Although this argument doubtlessly is accurate in many circumstances, it overstates the case.
         Some persons may be accident-prone; although they cannot help what they do, they
         nonetheless constitute a danger to the community. Furthermore, there may be deterrence
         value in punishing an innocent person who commits the actus reus of an offense as an object

                                                          Page 24 of 56 Pages
      lesson to others who might believe otherwise that they could avoid punishment by fraudulently
      convincing a jury of their lack of mens rea. Abandonment of the mens rea requirement would
      also create an incentive for persons to act with the greatest care possible.

B. Retributive: The mens rea requirement is supported by the retributive principle of just desserts. A
  person who commits the actus reus of an offense in a morally innocent manner, i.e., accidentally,
  does not deserve to be punished, as she did not choose to act unlawfully.

    1. The Supreme Court has observed that the requirement of mens rea "is as universal and
      persistent in mature systems of law as belief in freedom of the human will and a consequent
      ability and duty of the normal individual to choose between good and evil." Morissette v. United

                                        Page 25 of 56 Pages
                             The following are the principle types of mental states

NYPL § 15.05                              MPC                                               Common Law

1. Intentionally: A person acts               1. Purposely: a person acts         1. Intentionally: a person
intentionally with respect to a                 purposely with respect to a         commits the social harm of an
result or to a conduct described                material element of an offense      offense 'intentionally" if:
by a statute defining an offense                when:
when his conscious objective is                   i) if the element involves the       (1) it was D's conscious
to cause such result or engage in                    nature of his conduct or a            object to cause the
such conduct.                                        result thereof, it is his             result/social harm; or
                                                     conscious object to               (2) if she knew that it was
                                                     engage in conduct of that             virtually certain to occur as
(MPC and NYPL are very similar in this regard        nature or to cause such a             the result of her conduct
but does NOT include the knowledge aspects.
Only a knowing and intentional act applies.)         result; and                           (and not merely a high
                                                  ii) if the element involves the          probability or possibility).
                                                     attendant circumstances,
                                                     he is aware of the
                                                     existence of such            (Note this includes more of a conscious
                                                     circumstances or he            awareness and substantial certainty of
                                                                                    occurrence to constitute intentional. MPC
                                                     believes or hopes that they    and NYPL put this extra awareness in
                                                     exist.                         "knowingly")

                                               (note that he hopes they exist or occur,
                                                  so if he hopes the other people on the
                                                  plane will die from a bomb but he
                                                  doesn't intend their death, he is still
                                                  liable under MPC but not under NYPL)

2. Knowingly: A person acts               2. Knowingly: A person acts
knowingly with respect to                 knowingly with respect to a
conduct or to a circumstance              material element of an offense
described by a statute defining           when:
an offense when he is aware that          i) if the element involves the
his conduct is of such nature or          nature of his conduct or the
that such circumstance exists.            attendant circumstances, he is
                                          aware that his conduct is that
                                          nature or that such
                                          circumstances exist; and
                                          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.

                                                      Page 26 of 56 Pages
3. Recklessly: A person acts           3. Recklessly: A person acts             3. Recklessly: Various forms; in
recklessly with respect to a result    recklessly with respect to a             some jurisdictions punishable
or to a circumstance described         material element of an offense           even by objective fault.
by a statute defining an offense       when he consciously disregards
when he is aware of and                a substantial and unjustifiable
consciously disregards a               risk that the material element
substantial and unjustifiable risk     exists or will result from his
that such result will occur or that    conduct. The risk must be of
such circumstance exists. The          such a nature and degree that,
risk must be of such nature and        considering the nature and
degree that disregard thereof          purpose of the actor's conduct
constitutes a gross deviation          and the circumstances known to
from the standard of conduct that      him, its disregard involves a
a reasonable person would              gross deviation from the
observe in the situation. A            standard of conduct that a law-
person who creates such risk but       abiding person would observe in
is unaware thereof solely by           the actor's situation.
reason of voluntary intoxication
also acts recklessly with respect
4. Criminal Negligence: A              4. Negligently: A person acts            4. Negligence: Same as MPC
person acts with criminal              negligently with respect to a
negligence with respect to a           material element of an offense
result or to a circumstance            when he should be aware of a
described by a statute defining        substantial and unjustifiable risk
an offense when he fails to            that the material element exists
perceive a substantial and             or will result from his conduct.
unjustifiable risk that such result    The risk must be of such a
will occur or that such                nature and degree that the
circumstance exists. The risk          actor's failure to perceive it,
must be of such nature and             considering the nature and
degree that the failure to             purpose of his conduct and the
perceive it constitutes a gross        circumstances known to him,
deviation from the standard of         involves a gross deviation from
care that a reasonable person          the standard of conduct that a
would observe in the situation.        reasonable person would
                                       observe in the actor's situation.


Dressler describes intentionally as the highest level of culpability. Note: NYPL does not discuss
intentionally with regard to circumstance but the MPC does. MPC divided intent into (1) purposely and (2)
knowingly, but NYPL didn't keep knowingly with regard to results - NY only has knowingly for conduct and
circumstance elements. The common law meant conscious objective, desire or purpose. Common law:
said social harm is caused intentionally if it is D's desire (conscious objective) to cause the social harm or
D knows the social harm is virtually certain to occur.

    Explanation: A watches a kid drown. Common Law convicts A because of his desire or knowledge of result is
      qual to intent. NYPL would have to infer "desire" from the result of A's act, that it was A's conscious objective.
      "Knowing" is not good enough in NY. If A was unsure of the victim’s death the we cannot convict A of
      intentional murder in NY. MPC would convict if A knows that the victim's death is substantially certain to occur.

    A. At common law, a person commits the social harm of an offense 'intentionally" if:

                                                  Page 27 of 56 Pages
   (1) it was D's conscious object to cause the result/social harm; or
   (2) if she knew that it was virtually certain to occur as the result of her conduct (and not
     merely a high probability or possibility).

   1. Example: D plants a bomb in a crowded room in order to kill V. D knows that the explosion will
     also kill everyone else in the room, although she wishes it would not do so. The bomb
     explodes, killing everyone.

       a. D killed V "intentionally" because the latter's death was D's conscious object.
       b. D killed the remaining persons "intentionally" because she knew that the result - their
         death was virtually certain to occur from her actions.

B. MPC: The term "intentionally" is not used in the Model Penal Code. Instead, the MPC
  subdivides "intent" into its two alternative components, and calls them "purposely" and

   1. D "purposely" causes a result if it is her conscious object to cause it. (§ 2.02(2)(a)(i)-)
   2. D "knowingly" causes a result if she is aware that the result is "practically certain" to result from
     her conduct. (§ 2.02(2)(b)(ii).)
   3. Thus, in the bomb hypothetical above, D "purposely" killed V, as that death was D's conscious
     object. She killed the others "knowingly."

       MPC 2.02: a person acts purposely with respect to a materiel element of an offense when:
            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 resu1t;
            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.

C. New York Penal Law:

   1. Intentionally: A person acts intentionally with respect to a result or to a conduct
     described by a statute defining an offense when his conscious objective is to cause
     such result or engage in such conduct.

       • NY does not include knowingly in mens rea, but it is included in our crimes with respect to
         the conduct elements of the crimes, not with intent.
       • Hypo: D wants to kill his wife V. He plants a bomb on a plane carrying V and 100 other people. Although D does not want anyone
          on the plane other than V to die, and he fervently hopes that the others will survive, he knows the bomb will destroy the airplane.
          The bomb goes of as planned killing all 100 people. Under the common law definition: D killed V intentionally because it was his
          conscious objective to take her life, but D's mental state as to the other 100 victims must be analyzed differently. He did not desire
          their deaths in fact he hoped they would live. Nonetheless, he intended their deaths as well because he knew the social harm was
          virtually certain to occur. However, under the NY Penal Law definition, he only intended to kill V, because that was his conscious
          objective and the NY definition of intent does not include knowledge.

       State v Peery: Facts: Several young ladies observed D, an army veteran and man of high reputation, unclothed standing in front of
          the window of his dormitory unclothed. This occurred on several occasions. D admits that he may have been careless, but did not
          intend to expose himself to the woman.
             §245.00 Public lewdness: a person is guilty of public lewdness when he intentionally exposes the private or intimate parts of his
                body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in
                which he may readily be observed from either a public place or from other private premises, and with intent that he be so
             Held: Under the common law there was no mens rea, because he did not act purposely or knowingly and acting carelessly is
                not the equivalent of acting intentionally. He may have been somewhat negligent by having his window open and coming out
                of his shower, but he didn't do it intentionally. There were 2 parts to the crime; (1) Intentional exposure and (2) Intent to be
                observed. Under this statute the D couldn't be prosecuted unless both burdens met. The dissent says that we should be
                able to draw an inference, which judges may, that since D was so aware, his act was his conscious objective.
             •Thus, Peery could not be convicted in NY but it could not be proven that it was his conscious objective to expose himself or
                that it was his conscious objective to be observed.
             • Note that if these intent elements could he proven it would not be necessary that someone actually saw him, because there is
                no consequence element of this crime, the social harm is that someone might see him.

                                                     Page 28 of 56 Pages

   A. Common Law: Some offenses require proof that the actor had "knowledge" of an attendant
     circumstance. At common law, D acts "knowingly" regarding a particular fact if she either:
   (1) is aware of the fact;
   (2) correctly believes that it exists; or
   (3) suspects that it exists and purposely avoids learning if her suspicion is correct.

   The latter form of "knowledge" is sometimes called "willful blindness."

       1. Example: It is a crime to "receive property knowing that it is stolen." Under this statute, the
         mens rea of "knowledge" applies to the attendant circumstance that the property is stolen. D
         would have the requisite "knowledge" under various circumstances.

            a. D is aware that the property she received is stolen because she saw it being stolen.
            b. D believes that it is stolen because she paid an extremely low price for it, and her belief is
            c. D accurately suspects (although her suspicion is not strong enough to constitute a "belief")
              that it is stolen because she bought it from a known purveyor of stolen goods, and she tells
              the seller, "Don't tell me where you got the property." This is "willful blindness."
   B. Under the MPC, a person acts "knowingly" as to an attendant circumstance if she is "aware" that
     the circumstance exists ( § 2.02(2)(b)(i)) or if she is aware "of a high probability of its existence,
     unless [s]he actually believes that it does not exist." ( § 2.02(7).)
       1. Under this definition, D is guilty of "knowingly" receiving stolen property in each of the
         examples above, except that in the common law case of "willful blindness" she has not acted
         "knowingly' if she was unaware "of a high probability" that the property was stolen.


                            Negligence / Reckless Analysis Chart:
                         Kinds of Risk       Risk Foreseeable      Deviation From Due    Awareness of Risk

Civil Negligence        Unjustifiable              Yes              Any Deviation               No

   Criminal             Substantial &              Yes             Gross Deviation              No
   Negligence            Unjustifiable

   Reckless             Substantial &              Yes             Gross Deviation             Yes
   Subjective            Unjustifiable

   NYPL §15.05 (4) Criminal Negligence: A person acts with criminal negligence with respect to a
    result or to a circumstance described by a statute defining an offense when he fails to perceive a
    substantial and unjustifiable risk that such result will occur or that such circumstance exists. The
    risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation
    from the standard of care that a reasonable person would observe in the situation.

   NYPL §15.05 (3) Recklessly: A person acts recklessly with respect to a result or to a circumstance
    described by a statute defining an offense when he is aware of and consciously disregards a
    substantial and unjustifiable risk that such result will occur or that such circumstance exists. The
    risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the

                                             Page 29 of 56 Pages
 standard of conduct that a reasonable person would observe in the situation. A person who creates
 such risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with
 respect thereto.

   • Some jurisdictions don't make the distinction between subjective & objective fault of negligence and
      recklessness. The difference there is only as to the degree of the conduct.

A. Criminal Negligence: (objective fault) A gross deviation from the standard of care where D
  takes a substantial and unjustified, foreseeable risk of which D was not, but should have
  been aware of the risk. A person acts in a "criminally negligent" manner if she should be
  aware that her conduct creates a substantial unjustified risk that the social harm of the
  offense will occur. Criminal negligence is one step above civil negligence. Various common
  law terms are synonyms of "criminal negligence," including "gross negligence," and "culpable

   1. "Criminal negligence" must be distinguished from civil negligence, i.e., negligence sufficient to
     result in tort liability.

       a. In tort law, D acts "negligently" if she takes an unjustified foreseeable risk, i.e., a risk that a
         reasonable prudent person would not have taken.
       b. A risk is "unjustified" if the gravity of the harm that might foreseeably result from the
         conduct multiplied by the probability of its occurrence outweighs the likely benefit from the
         conduct. United States v. Carroll Towing Co., 159 F.2d 169 (1947).

             (1) If D drives an automobile at an extremely high rate of speed on a heavily used road,
               this could constitute civil negligence in many circumstances, because this conduct
               foreseeably may cause physical injury or property damage; and, if the road is
               occupied, the chances of the harm occurring are not insignificant.

             (2) The fact finder would balance this foreseeable risk against the reason why D took it. If
               she drove fast because she was late to a baseball game, a jury should conclude that
               the risk outweighed the benefit, i.e., that D was negligent. On the other hand, if D were
               rushing her seriously ill child to the hospital, the risk might be justifiable, depending on
               the facts.

   2. Because a criminal conviction typically results in loss of liberty and stigmatization of the
     wrongdoer, a greater degree of culpability usually is required to convict a person of a
     crime on the basis of criminal negligence than is necessary to prove civil negligence.

       a. The added culpability exists if the risk taken is a substantial unjustified risk.
       b. Gian-Cursio v. State.: D, a person of low education, does not seek medical care for V, her very sick child, because she does not
          realize that the child's condition is life-threatening. A reasonable person in D's situation would have realized the dire nature of the
          situation and would have taken V to a physician. V dies as the result of lack of medical care. The question of whether D's conduct
          was civil or criminal negligence was for the jury. Therefore the D was justifiably convicted of manslaughter (Florida Statute: "The
          killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be
          justifiable or excusable homicide nor murder, se deemed manslaughter and punishable by 1 - 20 years in jail.) Gian-Cursio v.
          State. Note that since there were 2 other doctors that thought the natural treatment prescription would work, it pushed the crime
          down to criminal negligence, rather than an awareness and a recklessness. However, it is irrelevant that the doctors thought the
          treatment would work as it was still gross negligence, but in NY it would probably be recklessness where there is a distinction
          between objective and subjective.

             (1) D might have acted in a criminally negligent manner. Her failure to seek care not only constituted civil negligence, but, in
                view of the risk involved—a high risk to a child's life—arguably constituted a substantial unjustified risk. State v. Williams, 4
                Wash. App. 908, 484 π.2d 1167 (1971).

   3. "Negligence" constitutes "objective" fault. That is, a person is not blamed because she
     possessed a wrongful state of mind (as in the case of "intent" or "knowledge," which are forms
     of "subjective" fault), but because she failed to live up to the objective standard of conduct of
     the "reasonable person."

       a. Common law courts were reluctant to infuse the defendant's personal characteristics or
         circumstances into the "reasonable person" (or, as the term ordinarily was stated,
         "reasonable man") test.

                                                      Page 30 of 56 Pages
           b. Most courts were willing to take into consideration only the defendant ' s unusual physical
             characteristics, e.g., her blindness, so that the issue would be whether a reasonable blind
             person would have acted as D did. A person's lack of education, economic status, etc.,
             were not usually considered.
           c. Because "negligence" is based on objective fault, it is a controversial form of criminal
             liability. Critics argue that one who acts negligently does not choose to cause harm, so she
             should be not punished because the criminal is not "morally blameworthy" because she
             didn't know of the risk she was wrongly undertaking. Advocates of liability argue that
             negligence can be deterred, so that punishment of negligent conduct serves a useful social
             purpose; it is also argued by some that people who act negligently demonstrate by their
             behavior a moral indifference to the rights of others and, therefore, deserve punishment.
             This is why the law includes an extra tag of substantial and unjustified negligence
             constitutes a punishment of objective fault criminal negligence.
                (1) Even if punishment of "negligence" is potentially justifiable, it cannot be justified under
                  retributive concepts of just desserts if the actor lacked the capacity to behave non-
                  negligently. For example, if a person of low intelligence is judged by the standards of
                  the reasonable person of ordinary intelligence, she may not be able to avoid acting

   B. The Model Penal Code definition of "negligence" generally conforms with the common law
     definition. It further states that a "substantial and unjustifiable risk" ("negligence") is one that
     constitutes "a gross deviation from the standard of care that a reasonable person would observe in
     the actor's situation." (§ 2.02(2)(d).)

       1. The phrase "in the actor's situation" is intended to allow a court to incorporate more subjectivity
         into the objective standard than was permitted at common law.
           • People v Haney (NY): This case deals with the difficulty of the court in discerning criminal negligence from civil negligence. D went
              through a red light striking and killing a pedestrian at about 52 mph, he noted he did not mean to hit her, and argues that the facts
              are insufficient to support an indictment on criminally negligent homicide. Held: Court said whether criminal negligence or civil
              negligence is dependent on the facts and circumstances of each individual case, court said evidence here clearly supports more
              than civil negligence and the matter should go to a jury.

                The Haney court gave guidance as to when line is crossed into criminal negligence. 1)Criminal liability cannot be predicated
                  upon every careless act merely because its carelessness results in another's death; and 2) the elements of the crime
                  preclude the proper condemnation of inadvertent risk creation unless the significance of the circumstances of fact would be
                  apparent to one who shares the community's general sense of right and wrong.

           • Hypo: A is angry at B because of a petty insult that B has heaped upon him. A punches B, B falls, gets up, goes home and then
              never wakes up again. It is determined the punch caused B's death. Was A's act a criminally negligent act because he failed to
              perceive the risk? If he was a championship boxer it could be a perceived risk, but maybe not if he was a small guy. Based on
              NYPL § 15.05 (4): A failed to perceive a risk and the risk was unjustifiable (no social benefit from the punch). But the issue arises
              as to whether the risk of death was substantial and the failure to perceive it was a gross deviation. The probability of killing
              someone with one punch is not a substantial risk and thus there was no gross deviation from the std of care, as a result A is not
              guilty of crime negligent homicide; guilty of criminal battery probably. The circumstances in Haney do, however, seem to have a
              greater severity to warrant a criminal negligence question for the jury.


Subjective Fault

   A. A person acts "recklessly" if she consciously disregards a substantial unjustified risk that
     the social harm of the offense will occur. The actor does not have to desire that the harm
     occur, only that he is aware of the potential risk of harm and he disregards it. (Common law
     jurists were not of one mind as to the definition of "reckless ness." One view, espoused by Oliver
     Wendell Holmes, Jr., was that a person acts "recklessly" if she should be aware that she is taking a
     very substantial unjustified risk.)

       1. This is no more than a heightened version of "criminal negligence." Notice: "civil negligence"
         involves unjustified risk-taking, "criminal negligence" is substantial unjustified risk-taking; and
         "recklessness" (as defined here) is very substantial unjustified risk-taking.

                                                          Page 31 of 56 Pages
        2. Under this definition, "recklessness" differs from "criminal negligence" in that it
          requires that the actor subjectively be aware of the substantial unjustified risk. In
          contrast, "criminal negligence" involves inadvertent risk-taking ("should have been

    C. The Model Penal Code applies the latter version of "recklessness." ( § 2.02(2)(c).) as well as
      NYPL § 15.05.
        • State v Petersen: Rule: A person who participates in the setting in motion of a hazardous conduct cannot just turn his liability and
           participation on and off like a light switch. Drag race which reached speeds of 60 -80 mph in a 35 mph zone resulted in the collision of
           one of the cars, causing the death of the passenger in that vehicle. Held: when this case is applied to NY statute they were reckless,
           because the risk of death was substantial because of the setting of the race (residential area with intersection), the risk was also
           unjustifiable because there was no social utility to drag racing in the streets. There was also proof that he was aware of the risk,
           because he said that he was familiar with drag racing, thus can infer he knew the risk and disregarded it. Finally, there was a gross
           deviation, due to the setting of the race and the high degree of risk involved. So Reckless behavior is a (1) gross deviation (2)
           awareness of D of taking a (3) substantial and unjustifiable risk.
              Note: The fact that Petersen unilaterally withdrew from race at the intersection was irrelevant, the risk he created by his recklessness
                  continued right up until time of the crash. The D could not withdraw from the race without communicating it to the other driver. It is
                  easy to conclude that there is no social value to the risk of death created by drag racing.

        People v Futterman (NY): D a male nurse killed a patient, a violent person, when he put a choke hold on the patient to stop him from
          harassing another patient. It was held that criminal negligence had not been shown because D's action occurred during an emergency
          situation with little time for reflection or the opportunity to weigh alternatives.


A. At common law, a person acts "with malice" if she intentionally or recklessly causes the social harm of
an offense, as the latter mens rea terms are defined above.
1. Example: D throws a stone at V. The stone misses V, the intended victim, but breaks a window behind
her. D is charged with the offense of "malicious damage to property." Pegina v. Pembliton, 12 Cox C.C.
6a7 (Eng. 1874).
a. To prove D's guilt, the prosecutor would have to show that D either intended to damage the window
(the actus reus of the offense) or that D recklessly damaged it.
B. "Malice" has a broader definition in the context of the common law crime of murder, the mens rea of
which is 'malice aforethought." (See Chapter 22.)
C. The Model Penal Code does not use the term "malice" or any other mens rea term other than the four
described above ("purposely," "knowingly," "recklessly," and 'negligently").


    A. The common law distinguishes between "general intent" and "specific intent" crimes. The
      distinction is important because some defenses apply only, or more broadly, in the case of "specific
      intent" offenses. The distinction is irrelevant in MPC jurisdictions.

    B. Specific Intent: offense is one that contains one of the following mens rea elements in its
        (1) the intent to commit some act that is not part of the actus reus of the offense;
        (2) a motive for committing the actus reus of the offense; or
        (3) awareness of a particular attendant circumstance.

        • This specific intent is usually signified by the words "with intent to..."
        • "Attempts" crimes are almost always indicative of specific intent crimes.

              1. Example: "Burglary" is a specific-intent offense of the first type. The actus reus is "breaking and
                 entering of the dwelling-house of another at night." The mens rea - "intent to commit a felony therein"
                 - is a mental state pertaining to an act (commission of a felony) that is not part of the actus reus of the
                 offense. That is, the crime of burglary is complete whether or not D commits a felony inside the
                 house; but it does not occur unless D has this "specific intent."
                    • Analysis of burglary: "breaking and entering" (AR Conduct element), "into a dwelling at night" (AR
                       circumstance elements), "with intent to commit a felony within" (MR specific intent element)

                                                             Page 32 of 56 Pages
        2. Common law "larceny" is an example of the second type of specific-intent offense. "Larceny" is the
           "trespassory taking and carrying away of the personal property of another with the intent to
           permanently deprive the owner of the property." It is a "specific intent" offense because the actus reus
           must occur with a specific purpose: not simply to dispossess the other person of the property, but to
           permanently deprive her of it. The "taking away... of ... property" is a voluntary intent to take and a
           general intent to dispossess. The "intent to permanently deprive the owner" is the specific intent of the
           crime to steal.

        3. An example of the third variety of specific intent would be the offense, "receiving stolen property,
           with knowledge it is stolen." The specific intent of this offense is that the actor must be aware (have
           knowledge) of the attendant circumstance that the property was stolen.

        4. "Uttering and passing a promissory note with intent to defraud" - must show a specific intent to
           defraud and take advantage of someone.

        5. Murder statutes: Note that for something like "assault with intent to murder" the specific intent is to
           murder, not intent to inflict great bodily harm. This may suffice for the under statute that when
           someone intends to commit great bodily harm they can be convicted of murder. But attempted murder
           requires the specific intent to kill itself. (The common law considers the 2 the same which is
           substantial certainty = desire, but don't confuse the common law, a more objective standard, with our
           statutory law which requires a purely subjective standard.)

        6. Thacker v Commonwealth: D was drunk, and decided to shoot the light out in a tent he saw in the distance knowing that there
           were people in it, the bullet narrowly missed a woman and child. D stated he would specifically shoot out the light. D apologized at
           trial and claimed he did not mean to hit anyone. Thacker was charged with attempted murder. Rule: To commit a murder one
           need not intend to take a life, but to be guilty of an attempted murder, he must so intend specifically.
               • Thus, an attempt crime requires a specific intent to commit a criminal act, murder is a general intent criminal act.
               • Thus, there was no cause of action to convict Thacker on, NY created a new crime to cover these situations:
              NYPL §120.20 Reckless Endangerment in the 2nd Degree:
              " a person is guilty of reckless endangerment in the second degree when, he recklessly engages in
                 conduct which creates a substantial risk of physical injury to such other person or a third person.
              mens rea: recklessly engages in conduct
              actus reus: any conduct which creates a substantial risk of serious physical injury to another person.
              • Thus, in NY Thacker would be convicted under this statute, when he shot into the tent he knew he was creating a serious risk
                 and the risk was substantial that he could've killed someone.

        7. Dobb's Case: burglary was defined as ~ the breaking and entering of a dwelling house at night with the intent to commit a felony
           when inside." D could not be convicted of burglary because he broke in and entered in the night, but did not have the specific
           intent to commit the felony once inside. He only intended to disable the horse which is a trespass but not a felony. D was capitally
           punished anyway for the killing of the horse, this tells us that the killing of the horse was a general intent crime, because his intent
           was merely to injure, but his act had the requisite intent to convict him for killing the horse.

        8. Commonwealth v. Shea: 2 Ds pushed V around in a parking lot after an incident in the bar. D stabbed V 3 times in the chest. D
           claimed that "someone else did the crime." At issue is the attempted murder charge against the D .The lawyer objects that the
           judge charged the jury by stating that D could be convicted of attempted murder that "murder is defined as the killing of a human
           being with malice aforethought. What the crime of murder encompasses is the killing of a human being without justification or
           excuse with the intent to inflict injury, and the death then resulting from the infliction of that injury." Holding: Prosecution because
           even though this charge is too confusing for the jury and would have prejudiced them to think that an attempt to injure that looks
           like murder is "attempted murder", the D never objected that the D did not intend to merely injure and not kill V. He just said that
           he didn't do it. The jury could properly infer from the circumstances that it could result from nothing else but an attempt to murder
           V, and they did.

        9. State v May: D appealed his conviction of forgery (forged dad's name on a loan guarantee), the crime
           had the following elements: "the act of uttering and passing and forging the note with the intent to
           defraud" Held: Prosecution - The fact that the one whose name was forged is willing to condone the
           offense and pay the obligation is no defense for forgery. This is a specific intent crime, it was not
           enough to convict by showing that be voluntarily presented the note with a forged signature on it, thus
           beyond the physical act the π had to prove the additional mental state of intent to defraud. In order to
           show that intent, it would have to be shown that the forgery was done at someone's expense - the
           expense of the lender who thought the note was genuine and completely secured. This is a rebuttable
           presumption (see above for constitutionality of such check writing statutes.) Note 8 says that this is a
           case of subjective intent which may be inferred by the surrounding circumstances and is determined
           by the jury.

C. General Intent: of a criminal offense is any mental state that is not a "specific intent." Usually is
  the intent of recklessness and negligence.

        1. Example: Common law battery is defined as an "unlawful application of force to the person of
           another." In this context, "unlawful" means that the actor "wrongfully" committed the actus reus of the
           offense. In the broad sense of the term "mens rea," this means that the actus reus must be committed
           in a morally blameworthy manner. This was the "general intent" of the offense.

                                                        Page 33 of 56 Pages
            2. Today, "battery" might be defined with a particular mental state in its definition: "intentional unlawful
               application of force to the person of another." This change in the definition would not affect its nature
               as a "general intent" offense, because the term "intent" applies only to the actus reus of the offense: D
               is not guilty unless she commits the social harm ("unlawful application of force to the person of
               another") in an "intentional" manner. D only has to apply physical force to another and π does not
               have to prove any specific intent, only that it was done in a blameworthy manner.


A. In a crime of "intent," as that term is defined in m. above, a person acts "intentionally" if the result of
her actions differs from that which she desired only in respect to the victim.
1. Example: D's conscious object is to kill V. With that intent in mind, she fires a gun at V, but the bullet
strikes and kills X. The intent to kill V is "transferred" to the actual victim, X.
a. In fact, it is not necessary to say that the intent is "transferred." The mens rea of murder is the
"intention to kill a human being." D intended to kill a human being (V). The identity of the human being
actually killed is irrelevant to the issue of "mens rea."
B. The Model Penal Code is in accord with the common law in this respect. It provides that a person
"purposely" or "knowingly" causes a result if the result differs only "in the respect that a different person or
... property is injured or affected..." (MPC § 2.03(2)(a).)


    A. A common issue in criminal law litigation is whether a mens rea term applies to all of the actus
      reus elements in the definition of the crime or only to some of them.

        1. Example: "Rape" is defined as "intentional sexual intercourse by a man with a woman not his
          wife, without her consent." In this definition, the actus reus may be divided up as follows:
          "sexual intercourse" (element A); "with a woman" (element B); "not one's wife" (element C);
          "without her consent" (element D). The question is: Does the "intent" in the definition modify
          each of these elements?
        2. Notice the problem: In the typical rape case, D will intentionally have sexual intercourse
          (element A). Suppose, however, that D intends to have sexual intercourse, but he believes that
          he has the woman's consent. In this case he lacks "intent" regarding element D. But, is such an
          intent required?

    B. Courts resolve these issues by various rules of thumb.

        1. Absent evidence to the contrary, mens rea terms in the definitions of offenses ordinarily are not
          applied to "attendant circumstance" elements of the crime.
            a. Example: In the rape hypothetical above, elements B, C, and D, are "attendant
               circumstance" elements. (See Chapter 3, VI.) Therefore, under the rule described here, the
               "intent" in the definition of the offense would not apply to those elements: D could be
               convicted of rape although he did not intend that V not consent.
        2. Alternatively, courts look at the placement of the mens rea term in the definition of the offense.
            a. Example: A federal statute provides that "whoever, in any matter within the jurisdiction of a
               [federal agency] ... knowingly ... makes any false statement [is guilty of an offense]."
            b. D knowingly made a false statement, but he did not know that his statement related to "any
               matter within the jurisdiction of a federal agency." The issue was whether such knowledge
               was required?
            c. Notice that the word "knowingly" in the statute follows, rather than precedes, the critical
               phrase "in any matter within the jurisdiction of a federal agency." The implication of this is

                                                Page 34 of 56 Pages
              that "knowingly" does not modify the earlier phrase. United States Y. Yermian, 468 U.S. 63

    C. The Model Penal Code provides a clear answer-to such interpretive issues: Unless a contrary
      legislative intent "plainly appears," a mens rea element applies to every material element of
      the offense. (§ 2.02(4).)

        1. Example: If a statute were to define "rape" as "knowing sexual intercourse with a woman not
          one's wife, without her consent," the prosecutor would have to prove that D "knowingly" had
          sexual intercourse, as well as that D knew that the victim was not his wife and that she did not
        2. The MPC provides that there can be a different mens rea term for each material element.
            a. Therefore, if a legislature wished, it could provide that "rape" occurs if D "knowingly has
              non-consensual sexual intercourse with a woman not his wife, with negligence regarding
              her lack of consent." Under ~is definition, D must knowingly have sexual intercourse, and
              must know that the woman is not his wife. However, D would be guilty of rape if he
              negligently believed that she had consented.

D. Summary of grammatical rules:

1. The placement of a mens rea term at the beginning of a definition of a crime may be interpreted to
imply that the word modifies every actus reus element that follows it.

2. The mens rea term ordinarily modifies the result and conduct elements in the actus reus, but not the
attendant circumstances in the definition (not the grading elements).

3. MPC: 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 therefor. such provision
shall apply to all material elements of the offense, unless a contrary plain purpose appears.

4. NYPL § 15.15: Wen one and only one of such terms (culpability requirements) appears in a statute
defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its
application clearly appears.

a. Signals come in the form of commas and physical separations.

i. AND: "knowing and unlawfully" - knowing does not extend to unlawfully that you don't have to know it
was unlawful.

ii. OR: "knowingly enters or remains" - knowingly applies to both actus reus components because of the
use of or.


i. Grading Elements: With respect to dollar amounts, NYPL follows common law that grading elements
have no bearing on the mens rea of the crime. You don't have to know exact quantity of what you were
carrying, only that you were carrying the requisite amount.

ii. "and when" are 2 words that are usually indicative that the following elements are not part of the mens
rea of the crime, rather they are grading elements. These are usually strict liability elements.

iii. Age Elements: In NYPL, when the age of a child is used in a statute it is a strict liability element
regardless of the fact whether the word recklessly or other is used. This usually comes into play for
statutory rape cases, where the D thought the girl was over the requisite age, but nevertheless he is held
responsible for his act and the circumstance. Exception is in case of dissemination of illicit materials to

                                              Page 35 of 56 Pages

A. Notwithstanding the general rule that a person is not guilty of an offense in the absence of mens rea,
some crimes are denominated as "strict liability." An offense is "strict liability" in nature if commission of
the actus reus of the offense, without proof of a mens rea, is sufficient to convict the actor.
1. Example: "Statutory rape" is usually a strict-liability offense because D need not be aware of, or even
negligent regarding, the under-age status of the girl with whom he has sexual intercourse.
a. Even if "intent" were explicitly required regarding the act of sexual intercourse, the offense might still be
termed "strict liability" because the critical element of the offense is the under-age status of the female,
and no mens rea is required as to that element.
B. Most strict-liability crimes are "public-welfare offenses."

1. Public-welfare offenses are those laws that were enacted as a response to some of the special
dangers that arose during the Industrial Revolution. Examples include: offenses that prohibit the sale of
misbranded articles, adulterated foods, and impure drugs; laws that regulate the use and

transportation of dangerous instrumentalities; and motor-vehicle regulations.
2. A public-welfare offense ordinarily has the following characteristics:

a. It involves malum prohibitum conduct, i.e., conduct that is wrongful only because it is prohibited, as
distinguished from conduct that is inherently wrongful (i.e., malum in se conduct?.
b. The penalty for its violation is minor, such as a monetary fine or a very short jail sentence.
c. A single violation of it often threatens the safety of many persons. For example, unlawful transportation
of explosives on an inappropriate highway may jeopardize the safety of many persons.
C. Some traditional crimes are strict liable in nature, such as bigamy and statutory rape.
D. Strict-liability offenses are not unconstitutional per se.
1. The Supreme Court has held that punishment of violators of strict-liability public-welfare offenses does
not violate the Due Process Clause. According to the Court, "the state may in the maintenance of a public
policy provide 'that he who shall do [acts] shall do them at his peril."' United States v. Balint, 258 U.S. 250
2. However, the Supreme Court has stated that if an offense, strict liability on its face, has roots in the
common law, it will not assume, absent evidence to the contrary, that the legislature meant to abandon
the mens rea requirement. Morissette v. United States, supra.
a. In Morissette, D converted to his own use government property that he believed had been abandoned.
He had no intent to steal the property. On its face, the offense did not require such an intent. The Court
held, however, that the offense was a variation on the common law crime of larceny. Consequently, it
held that a specific intent to steal was an element of the offense.
3. Arguably, although the Supreme Court has never reached the issue, severe punishment of a person
for strict-liability conduct would constitute grossly disproportional punishment in violation of the Eighth
Amendment. (See Chapter 2.)
E. The Model Penal Code abolishes strict criminal liability except as to "violations," for which
imprisonment is never permitted. ( § 2.05.)
1. The Code further provides that when a criminal offense (as distinguished from a "violation") does not
explicitly include a mens rea term in its definition, the prosecutor must nonetheless prove that the
defendant acted purposely, knowingly, or recklessly. ( § 2.02(3).)



                                              Page 36 of 56 Pages
Conversation with the reader: In the last two chapters you learned that a crime is composed of an "actus
reus" and, in most circumstances, a "mens rea." In turn, you learned (Chapter 3) that the "actus reus" of
an offense includes two elements: a "voluntary act" (or, in limited circumstances, an "omission'~ and
"social harm."
But, these two elements—voluntary act and social harm—do not exist independently of each other; it is
not enough for the prosecutor to prove that a defendant committed a voluntary act and that the social
harm of the offense occurred. For the defendant to be convicted, there must be a link between his
voluntary act and the social harm: the defendant's voluntary act must have caused the prohibited social
harm. That link— causation—is the subject of this chapter. As discussed below, "causation" is divisible
into two elements, "actual cause" and "proximate cause."


A. A person is not guilty of an offense unless he is an "actual cause" of the ensuing harm.
B. At common law, and under the Model Penal Code, "actual cause" exists if the result that constitutes
the criminal offense would not have occurred but for the defendant's voluntary act (or omission). MPC §
2.03(1)(a). This is sometimes referred to as the "but for" or "sine qua non" test of causation.
C. To determine whether D is the actual cause of the social harm in a particular situation, do the
1. Determine what is (are) the relevant voluntary act(s) committed by D. (If the case is based on an
omission, determine what the omission is, and substitute that for the "voluntary act" in the following
2. Ask the question: "But for D's voluntary act(s) would the social harm have occurred when it did?"
a. If your answer is "Yes"—i.e., the social harm would have occurred when it did even if D had not
acted—then D is not the actual cause of the harm and, therefore, is not guilty of the offense.
b. If your answer is "No"—i.e., the social harm would not have occurred when it did but for D's voluntary
act(s)—D is an actual cause of the social harm, in which case you must move onto the remaining
causation issue (proximate cause).
3. Example: Suppose that D fires a gun at V, with the intent to kill him. Seconds before the bullet reaches
V, lightning strikes and kills V.
a. Ask: "But for D's voluntary act of firing the gun in the direction of V, would V have died when he did?"
b. The answer here is "Yes": even if D had not fired the gun, V would have died at the moment that he did
as the result of the lightning. Therefore, D is not the actual cause of V's death. He may not be convicted
of murder. (D is guilty of attempted murder, however. See Chapter 18.)
D. There can be multiple actual causes of a result.

1. Example: Suppose that Dl shoots V in the abdomen. Medical testimony will prove that, based on this
wound alone, V would have died from loss of blood in two hours. Simultaneously, D2, who is not acting in
concert with Dl, also shoots V. This wound alone would have killed V in five hours. V dies as the result of
both wounds in one minute. Based on these facts, both Dl and D2 are actual causes of the death.
a. This is evident if you apply the "but for" test discussed above as to each defendant separately (as you
must, because the facts state that the parties were not acting jointly).
(1) Ask: "But for Dl 's voluntary act [of shooting V in the abdomen] would V have died when he did [in one
(2) Answer: "No." If Dl had not shot V, V would have died in five hours from D2's voluntary act. Thus, Dl
accelerated V's death. This is sufficient to prove "actual cause."
(3) Now ask: "But for D2's voluntary act [of shooting V], would V have died when he did [in one minute]?
(4) Answer: Again, "No." V would have died in two hours from Dl 's voluntary act. Thus, D2 also
accelerated V's death.
E. In rare circumstances, the "but for" test may fail to reach the morally sensible result. In such cases, the
"substantial factor" test is sometimes used.
1. The problem arises when two acts, either one of which is sufficient to cause the resulting harm when it
did, occur concurrently.
2. Example: Suppose that Dl and D2, not acting in concert, shoot V simultaneously. A bullet from Dl 's
gun strikes V in the head; D2's bullet strikes V in the heart. V dies instantly. Medical testimony indicates
that either wound would have killed V instantly.
a. Application of the "but for' test will show that neither Dl nor D2 "caused" V's death, because V would
have died when he did—instantly —as the result of either wound.

                                              Page 37 of 56 Pages
3. Examples like this rarely arise in the criminal law. However, in tort law when such events occur, courts
often apply the "substantial factor" test: "Was D's conduct a substantial factor in the resulting harm?"
Such a test used here would result in the conclusion that Dl and D2 were both substantial factors in V's
death, as both of them inflicted mortal wounds.


A. A person who is an actual cause of resulting harm is not responsible for it unless he is also the
proximate cause of the harm.
B. In essence, "actual cause" analysis determines who the potential candidates are for causal
responsibility for a result. The purpose of "proximate

causation" is to determine who among the candidates ought to be held causally accountable for the harm.
1. Notice: A" proximate cause" of social harm necessarily is an "actual cause" of it. But, an "actual cause"
is not necessarily the "proximate cause." For this reason, one must always start with "actual cause"
2. At least in theory, "actual cause" is a matter susceptible to empirical verification. This is the case with
"proximate cause." Ultimately, when the law states that a defendant was the proximate cause of a result,
this is merely a shorthand way of saying that it is morally just to hold the person causally responsible for
the harm.
C, To determine whether a defendant was the proximate cause of the resulting harm, one must first
determine whether he was the "direct cause" of the result or whether, instead, there was an "intervening
cause." The legal significance of this determination is discussed below.

A. In proximate causation analysis, look at the facts and determine whether there was any actual cause
of the result that came into the picture D's voluntary act. If there was none, D is the "direct cause" of the
social harm.
1. Example: D shoots V. D dies instantly. As no other but-for causal force occurred after D's relevant
voluntary act, D is the "direct cause" of V's death.
B. A voluntary act that is a direct cause of the social harm is also a proximate cause of it. This is because
there is no other candidate for causal responsibility.
1. Therefore, in the last hypothetical, D is the proximate cause of V's death The legal significance of this
is that if D possessed the requisite mens rea, he may be convicted of some form of criminal homicide of V
(assuming no applicable criminal law defenses).


A. An 'intervening cause" is an actual cause of the social harm that occurred after D's causal contribution
to the result. The legal significance of an 'intervening cause" is discussed in V., intra.
1. Example: D shoots V. V does not die instantly, but is taken to a hospital where X, a physician, attends
to V's wound. Shortly thereafter, V dies. Depending on the facts, X might be an "intervening cause."
2. X's conduct might have had nothing to do with causing V's death. For example, X's medical care may
have been entirely proper, and thus extended (or, at least, did not shorten) V's life. Under such
circumstances, X would not be an actual cause of V's death. This leaves D's conduct as the only
("direct'~ cause of the death.
But, suppose it could be proved that D did not mortally wound V, and that V died due to negligent medical
care by X. Or, suppose that D did mortally wound V, but that X's medical skills were so poor that V died
more quickly as a result of malpractice.
a. In either of these cases, D remains an actual cause of the death—but for D shooting V, V would not
have been taken to the hospital, and thus would not have died in X's hands.
b. But, X is also an actual cause of the death. As his actions occurred after D shot V and they shortened
V's life, X's conduct constitutes an intervening cause. The question arises, therefore, whether D should
be relieved of responsibility for V's death because of X's intervening causal acts.


                                              Page 38 of 56 Pages
A. The existence of an intervening cause does not necessarily relieve a defendant of causal responsibility
for the resulting harm.
1. At common law, various factors (sometimes treated as if they were foolproof tests) often come into play
in "proximate causation" analysis. Those factors are discussed below.
2. The Model Penal Code dispenses with the common law factors and would permit conviction of the
defendant who is the actual cause of the result if the prosecutor proves that the "actual result . .. is not too
remote or accidental in its occurrence to have a just bearing on the actor's liability ...." MPC §§ 2.03(2)(b),
B. In general, at common law, a defendant is the proximate cause of a result, even if there is an
intervening cause, if the outcome was intended by the defendant. This is sometimes termed the
"intended-consequences doc trine."
1. Example: D wishes to kill V, her nine-month-old child, by poison. Therefore, she furnishes the poison to
X, V's nurse, telling X that it is medication that should be administered to V later that day. X does not
follow instructions and instead places the "drug" on a table, where Y, a child too young to understand the
consequences of his actions, picks it up and administers the poison to V. V dies. (Regina v. Michael, 169
Eng. Rep. 48 (1840).)
a. Notice that there are two intervening causes in V's death. First, there is X's act (very possibly
negligent) of placing the poison on a table in Y's reach. Second, there is Y's act of administering it to V.
b. In Michael, the Court affirmed D's conviction for the death of her child. This is consistent with the
intended-consequence doctrine. The unstated premise is that D got what she wanted—the death of her
child —in the very manner in which she wanted it—by poisoning. The fact ~GNIRGANCE OF

that this death occurred in an unforeseeable manner (at the hands of should not relieve D of causal
responsibility for the death.

C. In general, a defendant is not the proximate cause Or a result if a "free, deliberate, and informed" act
of another human being intervenes. (H. Hart & H. Honore, CAUSATION IN THE LAW 326 (2d ed. 1985).
This is sometimes termed the "voluntary human intervention doctrine."
1. This doctrine is based on the retributive theory that free will is a critical factor in the determination of
moral responsibility for actions. When a person acts of his own free will, he must accept full responsibility
for the results of his actions. Thus, a person whose conduct was exploited by the intervening actor is
relieved of responsibility; the latter party must accept full responsibility for his free, deliberate, and
informed actions.
2. Example: Suppose that D batters V and then leaves V unconscious on the road. Later, X observes Von
the road and exploits the situation by robbing V.
a. D would be the proximate cause of the battery, of course. But, he would no~ be the proximate cause of
the ensuing robbery, although it would not have occurred but for the battery, because X's act of robbing V
would be considered a "free, deliberate, and informed" intervening act that cuts off D's liability for the
latter harm.
3. Or, suppose that after D batters V, V is taken to a hospital at which his injuries are properly cared for.
However, the day before he is due to leave the hospital, V, angry that he was the victim of the battery,
kills himself.
a. Assuming that there is no evidence that V was suffering from some mental illness or deep depression
that might render his conduct involuntary, his decision to kill himself will relieve D of criminal responsibility
for his death.
. Especially when the latter factors are not dispositive, it is helpful to determine whether the intervening
cause was "dependent" or "independent" of the defendant's act. A dependent intervening cause is less
likely to relieve the defendant of criminal responsibility than an independent one.
1. An intervening cause is "dependent" if it occurs as a response to the defendant's earlier action. It is
"independent" if it is not in response to the defendant's conduct.
a. Example: Suppose that D shoots V, and V is taken to a hospital for medical care where X, a surgeon,
conducts negligent surgery on V. V dies as the result of the surgery. X's conduct is a dependent
intervening cause, as his actions were a medical response to D's act of shooting V.
b. On the other hand, suppose that D shoots V, and V is taken to a hospital for medical care, where X,
another patient, has an insane delusion and kills everyone in sight, including V. X would be an
"independent" intervening cause. This is because X's actions were not in response to D's conduct: X was
going to kill everyone in sight regardless. D simply put V in the wrong place at the wrong time (and, thus,
was an actual cause of the death).

                                               Page 39 of 56 Pages
2. Generally speaking, a defendant is responsible for a dependent intervening cause unless the response
was freakish. However, a defendant is not responsible for an independent intervening cause unless he
should have foreseen its occurrence.
a. Thus, in the surgery example above, D is responsible for V's death, even if X was negligent in the
surgery. X's conduct was "dependent" on D; and negligence by a doctor, although actionable in tort law,
cannot be said to be freakish. E.g., Hall v. State, 199 Ind. 592, 1~9 N.E. 420 ( 192 8). However, if X
conducted the surgery while intoxicated or under the influence of drugs, this could be considered so
unusual or bizarre that X, rather than D, is the proximate cause of the death.


Conversation with the reader: In previous chapters you learned that all crimes contain an actus reus
(Chapter 3) and, in nearly all cases, a mens rea (Chapter 4). You also learned that the actus reus
consists of a voluntary act (or, occasionally, an omission, when there is a duty to act) and the social harm
that the act causes. Finally (Chapter 5), you learned about "causation," the link between the voluntary act
and the social harm of the actus reus. This chapter discusses the important, although rarely discussed,
requirement of "concurrence."


A. A person is not guilty of an offense unless the prosecutor proves beyond a reasonable doubt not only
that the defendant committed the actus nus of the offense with the requisite mens rea, but that the actus
reus and mens rea "concurred."
B. "Concurrence" exists if the defendant possesses the mens rea of the crime at the time that she
commits the actus reus.
C. The principle of concurrence is only rarely codified.
1. Example: California Penal Code § 20 codifies the principle: "In every crime ... there must exist a union
or joint operation of act and intent, or criminal negligence." (Emphasis added.)
2. The Model Penal Code requires concurrence. MPC § 1.13(5) defines "conduct" as an "action or
omission and its accompanying state of mind...." (Emphasis added.)

A. Concurrence is lacking if the defendant possesses the mens rea of the offense before, but not during,
the commission of the actus reus.
1. Example: D plans to kill V. However, she changes her mind before committing any acts in furtherance
of her intention. At a later date, she accidentally kills V.
a. D is not guilty of murder. She possessed the mens rea for murder (intent to kill). She killed V, the actus
reus of the offense. However, at the time that she killed V, she had an innocent state of mind. Therefore,
the concurrence of the elements is lacking.
B. Concurrence exists if the mens rea concurs in time with the act that results in the social harm, even if
the harm occurs later, at which time the actor no longer possesses the mens rea.
1. Example: D, with the intention to kill, shoots V. V does not die instantly, but lingers in critical condition
in the hospital. D becomes remorseful and genuinely hopes that V will survive. V dies thereafter.
a. D is guilty of murder. At the time she shot V, she had the requisite mens rea. As it was this act that
actually and proximately caused V's death at the later date, the concurrence requirement is met.


A. Concurrence is missing if the actus reus precedes the mens rea.

1. Example: D breaks into her friend's, V's, house at night as a practical joke. Once inside, she finds her
husband in bed with V. D kills V. D is charged with burglary and murder.

                                               Page 40 of 56 Pages
a. D is not guilty of burglary. When she committed the actus reus of that offense ("breaking and entering
the-dwelling-house of another at night"), she did not possess the specific intent of burglary ("with the
intent to commit a felony inside"). The intent to commit a felony— murder or manslaughter—occurred
after the actus reus was completed.


A. A problem arises when a person commits two voluntary acts, divisible in time, and there is reason to
believe that the actor possessed the mens rea at the time of one, but not both, of the acts. If it turns out
that only one of the acts caused the social harm, the prosecutor must prove that the mens rea concurred
with the one that caused the social harm.
1. Example: D, an automobile driver, non-negligently struck V, a pedestrian. D stopped his car
momentarily, but then drove on. V's body became wedged under D's vehicle and was dragged for a
considerable distance. The medical evidence was unclear whether V died instantly at impact with D's car
or whether the death occurred because D negligently dragged the body. State v. Rose, 112 R.I. 402, 311
A.2d 281 (1973).
D was entitled to be acquitted of manslaughter because the prosecutor failed to prove beyond a
reasonable doubt that the act that caused V's death concurred with D's criminal negligence (the mens rea
of manslaughter).
(1) The first act—striking V—was a non-negligent act. Therefore, if death occurred then, the mens rea
was missing. Under those circumstances, the criminal negligence of driving a car with a body wedged
underneath occurred after the social harm (death) occurred.
(2) It is possible that the death occurred as the result of the criminally negligent second act—driving the
vehicle after the impact—in which case the actus reus and mens rea concurred. The problem is that the
prosecutor must prove every element of the crime beyond a reasonable doubt (Chapter 2), and there was
insufficient evidence that the second act was the cause of the death. ACTUSREUS PRECEDING THE


Conversation with the reader: Even if a person commits every element of an offense, he is not guilty of
the crime if there is a defense to his conduct. However, the term "defense" is a word of many usages.
There are five types of defenses. You will understand the law of defenses better if you can distinguish
between them.



A. A case-in-chief defense (alternatively termed a "prima-facie' or "failure of proof" defense) is based on
evidence, the proof of which negates an essential element of the criminal offense.
1. Example: "Mistake of fact" (Chapter 8) is a case-in-chief defense.

a. Consider: D, a hunter, shoots and kills V in the forest. D is prosecuted for murder on the theory that he
intentionally killed V. D claims at trial that, although he intentionally shot V, he mistakenly believed that V
was an animal he was stalking. If the jury believes his claim, D should be acquitted; his mistake-of-fact
"defense" negates the "intent to kill a human being," an element of the crime.
B. This "defense" is not a true defense. It is a defense only in the sense that its proof will prevent the
conviction of the defendant. However, because the "defense" negates an essential element of the crime,
the prosecutor must carry the burden of proof regarding case-in-chief "defenses." (See Chapter 2.)


                                              Page 41 of 56 Pages
A. A justification defense is one that indicates that the defendant's actions were affirmatively good or, at
least, not wrong. One who alleges a justification defense claims, in essence, 'q did nothing wrong for
which I should be punished."
1. Example: The intentional killing of a human being ordinarily is murder, but it is "justifiable" (a good act,
o~ a "not wrong" act) if it occurs in self-defense or defense of a third person (see Chapter 10), or in crime
prevention (see Chapter 11).


A. An excuse defense is a claim that, although the actor committed the elements of the offense, and his
actions were unjustified, he should not be blamed or held criminally accountable for his conduct.
1. "Insanity" (Chapter 17) is an excuse. A person who kills another person and claims insanity states, in
essence, "Yes, I may have killed another, and that killing was unjustifiable, but I am not to blame—I
should not be held accountable for my actions—because I was insane when I acted."
B. Unlike a justification defense, which focuses on the non-wrongfulness Or the act, an excuse defense
focuses on the non-blameworthiness of the actor.
1. The distinction between justification and excuse defenses can have moral, conceptual, and practical
significance, as will become evident in the discussion of specific defenses, as well as in consideration of
issues of complicity (Chapter 21).


A. Although justification and excuse defenses apply to all offenses, some defenses apply to particular
crimes only. They are recognized in those circumstances in which, upon proof of the defense, the
underlying purpose for punishing the act is negated.
1. Example: In some jurisdictions, "abandonment" or "renunciation" is a defense to the crime of attempt
(Chapter 18). These jurisdictions recognize this defense because they believe that voluntary
abandonment of a crime after it is attempted negates the actor's dangerousness and, therefore, renders
punishment of the attempt unnecessary.


A. Some defenses are recognized for public policy reasons unrelated to the doctrines and purposes of
the criminal law.
1. Example: "Statute of limitations" and "diplomatic immunity" can be alleged as defenses in certain
circumstances. Acquittal or non-prosecution of a crime as a result of an extrinsic defense occurs, even if
the elements of the crime were committed by the defendant, and even if the defendant's actions were
unjustifiable, inexcusable, and not subject to a crime-specific defense. In short, such defenses are
recognized for reasons unrelated to the harmfulness of the conduct, the actor's dangerousness, and/or
his personal culpability.
2. As these defenses fall outside the scope of substantive criminal law doctrine, they are not discussed in
this outline.




                                              Page 42 of 56 Pages
Conversation with the reader: To properly understand the defense of "mistake of fact," you need to apply
various concepts you have already learned. Therefore, it will be useful to review three portions of Chapter
4 of the Outline at this point. First, remind yourself of the difference between "specific intent" and "general
intent" crimes. As you will see below, the common law scope of the mistake-of-fact defense depends on
this distinction. Second, re-examine the meaning of the term "mens rea." Notice that there are alternative
meanings: one that might be termed the "culpability" meaninB; and the other that might be called the
"elemental" definition of the term. As you will see below, the first meaning is relevant when one is
considering a general-intent offense. The second meaning is important in dealing with specific-intent
offenses. Finally, to understand the Model Penal Code approach to mistake, review the discussion in
Chapter 4 regarding MPC § 2.02.


A. In general, a defendant is not guilty of a crime if her mistake of fact negates the mens rea of the
offense charged. Thus, mistake-of-fact is a case-in-chief defense. (See Chapter 7.)
1. Example: Suppose that D points a loaded gun at V, pulls the trigger, and kills V. D is prosecuted for
murder on the basis of the mens rea of "intent to kill." D claims at trial that she had incorrectly believed
that the gun was unloaded (i.e., she had intended only to scare V~.
a. If the jury believes D, it must acquit her because her mistake of fact negates the mens rea of "intent to
kill." Her mistake is a "defense" to the crime charged.
2. When "mistake of fact" negates a defendant's mens rea, she is entitled to be acquitted for the logical
reason that an essential element of the crime has not been proved.


A. The common law approach to mistake-of-fact is confusing and not always consistent. Therefore, it is
helpful for a student confronting a mistake of fact issue to ask herself various questions, the relevance of
which are discussed in this chapter.
1. Is the offense for which the defendant is charged a "specific intent," "general intent," or "strict liability"
2. If the offense is one of ''specific intent," does the defendant's mistake of fact pertain to the "specific
intent" portion of the offense?
3. If the offense is one of "general intent," was the defendant's mistake of fact a reasonable or an
unreasonable one?
4. If the defendant's mistake was a reasonable one, was her conduct nonetheless morally culpable under
the "moral wrong" or "legal wrong" doctrine?

8 1 ~R-U~

F ~1

A. A defendant is not guilty of a specific-intent crime if her mistake of fact negates the specific intent of
the offense.
1. Example: D picks up V's umbrella in a restaurant and carries it home, believing it is her own. D is
charged with larceny.
a. D is not guilty of larceny. Her mistaken belief that she picked up her own umbrella negates the specific
intent of larceny, i.e., "the intent to steal."
b. D is not guilty regardless of whether her mistake was reasonable or unreasonable, because in either
case she did not intend to steal the umbrella. At most, she acted recklessly or negligently in regard to V's
2. On the other hand, suppose that D obtains cocaine from V, mistakenly believing that she is receiving
heroin. D is charged with the specific-intent offense of "intentionally receiving property, knowing that it is

                                               Page 43 of 56 Pages
D is guilty of the offense, whether or not her mistake was reasonable or unreasonable. She knew that she
was receiving contraband, the specific intent of the offense. Her mistake related only to the nature of the
B. If a defendant's mistake of fact pertains to the general-intent portion of a specific-intent offense, courts
will analyze the mistake claim as it would a general-intent offense, as discussed below.
1. Example: D has intercourse with a 15-year-old girl, believing that she is 17-years-old. He is charged
with the following specific-intent offense: "It is a crime for a male intentionally to commit any act upon the
body of a female under the age of 16, with the intent to arouse the sexual passions of the child." (Based
on People v. Olsen, 36 Cal.3d 638, 685 π.2d 52 (1984)-)
a. D's mistake relates to V's age, and not to the specific intent of the offense ("with the intent to arouse
[V's] sexual passions"). Therefore, the court will consider D 's mistake as if the crime were one of
"general intent."


A. A defendant is not guilty of a general-intent offense if, as the result of her mistake of fact, she
committed the actus reus of the offense with a morally blameless state of mind.
1. This rule is consistent with the fact that, at early common law, general-intent offenses contained no
explicit mens rea term. A prosecutor merely had to prove that the defendant committed the actus reus
with a culpable state of mind. This was all that "mens rea" meant.




B. The ordinary rule is that a defendant is guilty of a general-intent offense 1 her mistake of fact was an
unreasonable one. In contrast, a reasonable mistake of fact usually is a defense.
1. Example: D takes and drives an automobile belonging to V, without the latter's consent. She is charged
with "intentional unauthorized use of a vehicle belonging to another." D claims that she mistakenly
believed that she had V's consent, i.e., that the use was authorized.
a. Based on the rule under discussion, D will be convicted if the jury finds that her mistake as to V's lack
of consent was unreasonable; she will be acquitted if her mistaken belief that she was authorized was
2. This rule is subject to criticism on the ground that it permits the conviction of a person on the basis of
negligence (unreasonableness), even though the offense charged may, as in the example here, be
defined in terms of "intent."
3. Notice how the common law treats general-intent offenses differently than specific-intent crimes.
Suppose that D, a soldier from a foreign country, has intercourse with V. Due to a language barrier, he
incorrectly believes that V is consenting to the intercourse. See United States v. Short, 4 U.S.C.M.A. 437
(1) D is charged with "assault with intent to rape." As this is a specific-intent offense, and his mistake of
fact negates the intent to rape, he should be acquitted of the offense, even if his mistake was
(2) If D were charged with rape, a general-intent offense, his mistake of fact would not exculpate him
unless the jury determined that his mistake was reasonable under the circumstances. Yet, D's "intent" is
the same in either case, namely, to have consensual intercourse with V.
C. Occasionally, a court will convict a defendant of an offense, although her mistake of fact was
reasonable if her conduct violates the 'moral wrong" or '9egal wrong" doctrine.
1. The "moral wrong" doctrine states that a person is guilty of an offense, even though her mistake of fact
was reasonable if, assuming the facts were as she believed them to be, her conduct was morally wrong.
2. The "legal wrong" doctrine applies in the same manner as the "moral wrong" doctrine, except that the
phrase "legal wrong" is substituted for "moral wrong" in the statement above.

                                              Page 44 of 56 Pages
3. To see how these doctrines work, reconsider the "foreign soldier" hypothetical discussed in B. above,
in the context of the charge of rape.
a. As discussed above, if D's mistake regarding V's lack of consent was unreasonable, D is guilty of rape
under ordinary mistake doctrines.
b. If D's mistake regarding V's consent was reasonable, he will be acquitted unless the court applies the
moral-wrong or legal-wrong doctrine.
(1) To apply these tests, we look at the facts from D's perspective. In this case, we assume that, as D
reasonably believed the facts to be, V consented to sexual intercourse with him.
(2) Under the moral-wrong doctrine, we would then ask whether this act (consensual sexual intercourse
by D with V, a woman not his wife) is morally wrong. If society believes that it is morally wrong for a man
to have consensual intercourse with a woman out of wedlock, then D would be convicted of rape. The
rationale is that by committing a morally wrong act, D assumes the risk that the facts are not as he
believed them to be—that his actions are not just morally wrong, but are also legally wrong.
(3) Under the legal-wrong doctrine, D would be guilty of rape if consensual intercourse with a female out
of wedlock (the act he thought he was committing) is a crime and not simply morally wrong. If it is, D may
be convicted of the more serious offense of rape. If it is not, D would not be guilty of rape.
D. Notice, therefore, how the common law deals with a general-intent offense.
1. If D's mistake was unreasonable, D will be convicted.
2. If D's mistake was reasonable, D will usually be acquitted.
3. However, if D's mistake was reasonable, a court may choose to apply the moral-wrong or legal-wrong
doctrine, in which case D's liability will depend on whether his conduct was morally or legally wrong, as
those doctrines are applied.


A. A mistake of fact, whether reasonable or unreasonable, is never a defense to a strict-liability offense.
1. This rule is logical. A strict-liability offense is one whose definition contains no mens rea; therefore,
there is no element of mens rea to negate. The mistake of fact is legally irrelevant.


A. Subject to the exception noted in B. below, a mistake of fact is a defense to a crime if the mistake
negates the mental state required for the offense. (MPC § 2.04(1)(a).)
1. The Model Penal Code dispenses with the common law distinction between "general intent" and
"specific intent." The rule applies to all offenses in the same manner.
2. Example: Consider the following statute: "A man is guilty of rape if he recklessly compels a woman not
his wife to have sexual intercourse with him." Assume that D has sexual intercourse with V, mistakenly
believing that she consented.



a. Under the MPC, D is not guilty of rape unless he committed every acns reus element of the crime in a
reckless manner. Therefore, he is not guilty of rape unless he recklessly "compelled" V to have
b. If D reasonably believed that she consented, then he innocently compelled her to have intercourse. He
is not guilty of rape.
c. If D's mistake was unreasonable to the point of being negligent, D would still not be guilty, because his
mistake would negate the prosecutor's claim that he recklessly compelled V. However, D would be guilty
of rape if the jury decides that his mistake regarding V's lack of consent was reckless. a variation on the
common law legal-wrong doctrine, the defense of mistake-of-fact is inapplicable if the defendant would be
guilty of a lesser offense had the facts been as she believed them to be. Under such circum stances,
however, the defendant is guilty of the lesser, rather than the greater, offense. (MPC § 2.04(2).)

                                              Page 45 of 56 Pages
1. Example: Suppose that under state law, D would be guilty of first-degree statutory rape if he
intentionally has sexual intercourse with a girl under the age of 12; D would be guilty of second-degree
statutory rape if he intentionally had sexual intercourse with a girl between the ages of 12 and 16.
a. D has sexual intercourse with an 1 l-year-old, although he believed that the girl was 14. Under the
MPC, because he intended to have inter course with a 1 4-year-old, D will be guilty of second-degree
statutory rape, the crime he believed he was committing.
b. Under the common law "legal wrong" doctrine, as discussed above, D would be convicted of firs~-
degree statutory rape.


Conversation with the reader: Every schoolchild has heard the refrain, "Ignorance of the law is no
excuse." For once, a shibboleth is correct or, at least, nearly so. This chapter explains why ignorance of
the law ordinarily is not an excuse—it is a controversial rule—and considers the few exceptions to it. As
you will see, there are only two common law exceptions, and one constitutional limitation, to the rule. The
Model Penal Code differs only marginally from the common law.
One initial point: the law treats ignorance of the law, and mistakes regarding the meaning of the law,
interchangeably. Therefore, whenever the term "mistake" is used in this chapter, the comments apply
equally to claims of ignorance.


A. Subject to the exceptions discussed below, "mistake of law" is not an excuse to a crime under the
common law or the Model Penal Code. (MPC § 2.02(9).)
B. This rule is controversial because it can result in the conviction of morally innocent persons.
1. That is, D is guilty of a crime even if his mistake of law was reasonable; therefore, he may be convicted
of an offense in the absence of moral culpability. This result runs counter to the usual rule that "mens rea"
is a prerequisite to criminal liability.
C. Various rationales for the rule are of questionable validity.

1. The law is definite. Therefore, any mistake of law is inherently unreasonable.
a Perhaps this rationale was accurate at early common law, when there were few crimes and all of them
involved malum in se conduct. Today, however, there are many criminal laws, some of which involve
malum prohibitum conduct and/or are exceedingly complex. It is perfectly reasonable today to be
unaware of some laws or to be confused as to their meaning.
2. To permit an excuse based on ignorance or mistake of law would result in fraud. Everybody would
claim ~e defense and it would be next to impossible to disprove.
a. The possibility of fraud exists in many aspects of litigation, including in the criminal law. The doctrines
of mens rea and insanity, for example, are susceptible to abuse, but we permit the claims on the theory
that fairness requires them, and on the basis that juries will be able to determine which claims are
fraudulent. Mistake-of-law claims are no different.
D. The most plausible, but morally controversial, argument for the rule is the utilitarian one suggested by
Holmes: "[Justice to the individual is rightly outweighed by the larger interests on the other side of the
scales." (O. Holmes, THE COMMON LAW 48 (1881).
1. That is, we want persons to be knowledgeable about the law. To promote education, the law must
create strict liability as to knowledge of the law.
E. A few exceptions to the general rule exist. These exceptions can be under stood by distinguishing
between "same-law" and "different-law" mistakes, as those terms are explained below.


A. Under limited circumstances, it is an excuse that the defendant was unaware, or mistaken regarding
the meaning, of the offense for which he was prosecuted. These mistakes may be termed "same-law"

                                              Page 46 of 56 Pages
B. At common law and under the Model Penal Code, a defendant is not guilty of a criminal offense if, at
the time of its commission: (a) he believed that the criminal law did not apply to his conduct; and (b) his
belief was based on an omcial erroneous interpretation of the law. (MPC § 2.04(3)(b).) This exception is
sometimes called the "authorized reliance" exception.
1. Although the common law is less clear than the Model Penal Code regarding the matter, in general a
defendant may reasonably rely on an official statement of the law found in a statute, judicial opinion,
administrative ruling, or an official interpretation of the law given by one who is responsible for its
enforcement or interpretation
2. Example: A state supreme Court ruled that a law prohibiting conduct X was unconstitutional. In reliance
on that opinion, D did X. Subsequently, the court overruled itself and concluded that the statute was
constitutional. D was prosecuted under the now-valid statute. (State v. O'Neil, 147 Iowa 513, 126 N.W.
4~4 (1910).)
a. Because D reasonably relied on the court's original interpretation of the law, D was excused. However,
even if an excuse had not been recognized, punishment would have been inappropriate under the
principle of legality. (See Chapter 2.)
3. Or, suppose that D requests an official opinion of the State Attorney General regarding whether it is
lawful to commit act X. The Attorney General furnishes D with an official opinion that states that it is legal
to do X. D acts on the basis of this interpretation of the law. However, a prosecutor charges D with
violation of the law, and a court subsequently rules that the Attorney General's legal interpretation was
a. D should be excused on the basis of authorized reliance, as he acted on the basis of an official
interpretation of the law by a person who had authority to render such an opinion.
Incontrast,considerHopkinsv.State,193Md.489,69A.2d456(1950), in which D was informed by the local
prosecutor that it would be lawful to erect a particular sign. When D did so, the prosecutor charged him
with violation of the law. The court held that D was not entitled to a defense. Although the facts were
unclear on the matter, the result is correct at common law unless there was evidence that the prosecutor
had provided afo~7nal interpretation of the law.


C. Under limited circumstances it offends due process to punish a person for a crime of which he was
unaware at the time of his conduct. Lambert K California, 355 U.S. 225 (1957).
1. In Lambert, D was a resident of Los Angeles who had been convicted of a felony while she lived in the
city. She was unaware of an ordinance that required ex-felons residing in the city to register with the
police. She failed to register and was prosecuted.
2. Although the Supreme Court agreed that the ordinary ignorance of-the-law-is-no-excuse rule was
"deep in our law," the Due Process Clause limits its application. In this case, the Court concluded that it
violated due process to convict D in the absence of "actual knowledge of the duty to register or proof of
the probability of such knowledge." In essence, D lacked actual or constructive knowledge of the
registration offense.
3. The scope of the Larnbert principle is uncertain. However, due process probably is not violated unless
three facts exist.
a. The "unknown" offense must prohibit an omission (such as here, the failure to register).
b. The duty to act must be based on a status condition ratherthan an activity (here, presence in Los
c. The offense must be malum prohibitum in nature.


MISTAKES A. A defendant may claim that he should be excused because of a mistake on his part
regarding the meaning of a law other than the criminal law for which he is being prosecuted.
 1. Example: D obtains a divorce from X in Mexico, and then proceeds to marry Y in California. His
divorce was legally invalid in California, so he is prosecuted for bigamy. D does not deny that he knew
that bigamy was a crime; nor does he assert that he was mistaken about the law of bigamy. (In any case,
such mistakes would not excuse, as discussed above.) However, he claims that he should be acquitted of
bigamy because he had believed that his divorce was lawful.

                                              Page 47 of 56 Pages
 2. This is a "different-law" mistake: he is claiming a mistake about the law of divorce, and not about the
criminal law of bigamy.
 B. At common law, in the prosecution of a specific-intent offense, a different law mistake is a defense if it
negates the specific intent of the offense. In such cases, mistake-of-law is a case-in-chief defense. (See
Chapter 7.)
 1. Example: D left his vehicle for repair with X, a repair garage. After repairing the vehicle, X furnished a
bill to D in excess of the amount estimated. Upset, D refused to pay and returned at night and took the
car and drove it away. Under the state's mechanics-lien law, D did not have the right to take possession
of the car. D was prosecuted for larceny. He claimed that he should be acquitted because he believed
that he had a right to take the vehicle. (State v. Cude, 14 Utah 2d 287, 383 π.2d 399 (1963)).

2. Assuming that a jury believes D's testimony, he should be acquitted. Whether his mistake regarding
the lien law was reasonable orunreasonable, his mistake regarding the different law negated the specific
intent of larceny, i.e., the intent to steal.
3. Notice: This common law rule corresponds to mistake-of-fact doctrine regarding specific-intent
offenses. (See Chapter 8.)
C. At common law, a different-law mistake is not a defense in the prosecution of a general-intent offense,
regardless of whether the defendant's mistake was reasonable or unreasonable.
1. Example: D marries V in Mexico. Subsequently, he has non-consensual sexual intercourse with V in
state X, where they reside. It turns out that D's marriage to V is not recognized by law in state X.
Therefore, he is charged with the rape of V, a woman not legally his wife. He argues that he should be
excused on the ground that because of his mistake of law he did not know that he was having sexual
intercourse with a woman "not his wife."
2. Even if D's mistake regarding the marriage law was reasonable, he will not be excused: the ordinary
rule that ignorance of the law is no excuse prevails.
3. Notice: This rule conflicts with comparable mistake-of-fact doctrine.
D. Under the Model Penal Code, a mistake of law is an excuse if it negates an element of the criminal
offense. (MPC § 2.04(1)(a).) The "specific in tent"/"general intent" distinction is irrelevant.
1. This is the same rule as applies to mistakes of fact under the Model Penal Code.
2. Example: Suppose that D, a tenant in an apartment, installs floor boards in his home with the landlord's
permission. When D moves out, he tears out the boards, believing that he has a legal right to do so.
Under the jurisdiction's property law, however, the floor boards, although constructed by D, belonged to
the landlord. D is prosecuted for "purposely, knowingly, or recklessly destroying the property of another."
(Based on the facts in Regina v. Smith, [1974] 2 Q.B. 354.)
a. D should be acquitted as long as his mistake regarding the property law was innocent or negligent. If
his mistake was reckless, he should be convicted.
b. This conclusion follows from the relationship of MPC § 2.02 (discussed in Chapter 4) and MPC § 2.04.
(1) Under § 2.02(4), the mens rea terms ("purposely," "knowingly," or "recklessly") apply to every element
of the offense. Therefore, to be guilty D must have purposely, knowingly, or recklessly destroyed the
property "of another."
(2) Due to his mistake of law, D did not know that the floor board was the property "of another."
Therefore, he cannot be convicted unless his mistake in that regard was reckless. CRIMINAL HOMICIDE

Conversation with the reader: In this chapter we discuss the common law crimes of murder and
manslaughter, and the Model Penal Code versions of these offenses. Brief attention is also directed to
typical non-MPC homicide statutes.
You need to be careful here. Most, if not all, of the homicide cases you will read in your casebook are
based on a particular state's homicide statute, which will not precisely look like the common law version
of the crimes.
In particular, many statutes divide murder into degrees (i.e., first degree murder, second degree murder).
But—and I cannot stress this too strongly—there were no degrees of murder at common law. Therefore,
it is wrong for you to say in class (as my students have done from time to time) or on an examination that
"such-and-such constitutes first [or second] degree murder at cornmon law.'? Furthermore, not all
statutes that divide murder into degrees do so in the same way. So, before you analyze any fact pattern
(on an examination, or in a case you are reading for class), look at the particular statute in question in
order to see how it defines murder and manslaughter.
One more point: The discussion that follows requires you to be familiar with various mens rea terms.
Therefore, I recommend, if you need it, that you take a moment and briefly review Chapter 4; in particular,
review the meanings of the terms "intentional," "reckless," "criminal negligence" and "malice." It will be
worth your time.

                                              Page 48 of 56 Pages
A. Under English common law "homicide" was defined as "the killing of a human being." In American
common law, it is "the killing of a human being by another human being."
1. Notice that under the first definition suicide is a form of homicide, but it is not under the American
common law.
2. Notice also that "homicide" is a legally neutral term. A homicide can be justifiable, excusable or
B. At common law, a fetus is not a "human being" until it is born alive. Keeler ~. Superior Court, 2 Cal.3d
619, 470 π.2d 617 (1970).
1. In Keeler, D intentionally struck his estranged wife in the abdomen when he learned that she was
pregnant by another man. The viable fetus was born dead. D was prosecuted for murder, based on a
statute that did not define the term "human being." The state supreme court held that in the absence of a
statutory definition, the common law definition prevailed. Therefore, D was not guilty of murder, as he did
not kill a human being.
a. Notice the anomaly: if the beating had been slightly less severe, and the fetus had been born alive but
had died shortly thereafter, D could have been prosecuted for murder, although the injuries to the fetus
were sustained before it obtained its status as a "human being."
C. At common law, a person is legally dead (and, therefore, ceases to be a "human being") when there is
a total stoppage of the circulation of the
blood and a permanent cessation of the functions of respiration and heart pulsation.
1. Today, this definition is unrealistic: due to injuries a person's brain may die but her heart may continue
to beat (which, in turn, causes the blood to circulate) and she may continue to breath as the result of life-
support machinery. Therefore, many states now define death in terms of "brain death syndrome," which
occurs when the whole brain loses the capacity to function.
D. At common law, a killing that occurs more than a year and a day after the human act that is thought to
have caused it is not a "homicide."
1. Example: D stabs Vin the stomach on March 1,1989. V dies on or before March 1,1990 as the result of
the stab wounds. A "homicide" has occurred. But, if V dies thereafter, D is no longer considered
responsible for the death.
2. The year-and-a-day rule is an arbitrary doctrine, but which made some sense in earlier years. Courts
were concerned that if the death occurred too long after the initial attack, there was too great a possibility
that it was the result of other complicating causes, so that it was unfair to hold the defendant causally
3. Today, the rule makes much less sense. The cause of a death can be more easily ascertained; and
life-support machinery can artificially sustain a person's life beyond a year and a day. Therefore, many
states have abolished the rule.


A. At common law, criminal homicide is a homicide committed without justification or excuse.
1. In early English history, criminal homicide was a single offense, punishable by death. Later, the crime
was divided into the offenses of murder and manslaughter.
B. As explained more fully below, common law murder is a killing of a human being by another human
being with malice aforethought.
1. Originally, "aforethought" meant that the defendant thought about the killing beforehand—that she
premeditated it. Over time, the term lost importance, except as a reminder of the obvious: that the
"malicious" mental state must occur before rather than after the killing.
2. "Malice" is a term of legal art. Under American common law, a person acts with "malice (aforethought)"
if she unjustifiably, inexcusably, and in the absence of any mitigating circumstance, kills a person with
any one of four mental states:
a. The intention to kill a human being;
 b. The intention to inflict grievous bodily injury on another,


c. An extremely reckless disregard for the value of human life; or
d. The intention to commit a felony during the commission or attempted commission of which a death
accidentally occurs (the "felony-murder rule").

                                              Page 49 of 56 Pages
C. At common law, manslaughter is an unlawful killing of a human being by another human being without
malice aforethought.
1. Manslaughter is of two types, "voluntary" and "involuntary." They were once punished equally, but
today voluntary manslaughter is the more serious offense.
2. As discussed more fully below, voluntary manslaughter is an intentional killing in "sudden heat of
3. Involuntary manslaughter is an unintentional killing that occurs in one of two ways:
a. As the result of a lawful act performed (in Blackstone's words) "in an unlawful manner, and without due
caution and circumspection." This means simply that the killing occurred in a criminal negligent (or what
some courts have loosely called "reckless") manner.
b. As the result of the commission of an unlawful act. This is the "unlawful act" or (less accurately)
"misdemeanor-manslaughter" rule.
D. n is useful at the outset to see how common law murder and manslaughter are the same and how they
1. The key difference is that murder involves a killing with malice aforethought, whereas manslaughter
occurs without it.
2. An intentional killing can constitute either murder or manslaughter. It is murder unless the killing occurs
in "sudden heat of passion," in which case it is manslaughter.
3. An unintentional killing can constitute either murder or manslaughter. Notice that three types of
"malice" (as defined above) involve unintentional killings.
a. In general, a reckless killing is murder, whereas a criminally negligent one is manslaughter. Sometimes
courts describe the line between the offenses differently: an "extremely reckless" killing is murder, and a
"reckless" killing is manslaughter.
In general, an accidental killing during a felony is murder, whereas an accidental one during the
commission of a misdemeanor or some other unlawful act constitutes manslaughter.

INTENT T0 KILL . At common law, an intentional killing that is unjustifiable ~e.g., not committed in self-
defense), inexcusable (e.g, not committed by an insane person), and unmitigated (e.g., did not occur in
sudden heat of passion) is murder.

B. The intention to kill can be proved inferentially in various ways.

1. Until recently juries were often instructed that "the law presumes that a person intends the natural and
probable consequences of her voluntary acts."
a. Example: D voluntarily pulls the trigger on a loaded gun aimed at V, and kills V. Under the instruction
quoted above, the jury would presume the "natural and probable consequence" of D's conduct: namely,
that she intended to kill (or, at least, seriously hurt) V.
b. This instruction violates the due process clause of the United States Constitution, because it gives the
appearance of shifting the burden of proof regarding the element of intent from the prosecutor to the
defendant. Sandstrom v. Montana, 442 U.S. 510 (1979). (See generally Chapter 2.)
2. Courts frequently instruct juries that the "natural presumption" is that when a person intentionally uses
a deadly weapon on another person, she intends to kill or seriously hurt the other person. This is the so-
called "deadly-weapon rule."
a. However, this instruction could run afoul of the due process clause, as interpreted in Sandstrom, supra,
unless it is made clear to the jury that the "natural presumption" is not a legal presumption. The deadly-
weapon rule is not intended to shift the burden of proof to the defendant. It simply states what any juror
would infer for herself: a person who uses a deadly weapon on another person probably intends a deadly
C. Under some murder statutes that divide the crime into degrees, a so-called "willful, premeditated, and
deliberate" killing is first-degree murder; an intentional killing that is not premeditated and deliberate is
second-degree murder.
1. The term "willful" in these statutes means nothing more than "intentional."
2. "Premeditated" literally means "to think about beforehand." People v. Morrin, 31 Mich.App. 301, 187
N.W.2d 434 (1971).
a. The issue that divides courts is: How long must a person think about the killing in advance to constitute
Many courts state that "no time is too short" for a person to premeditate. E.g., Commonwealth v. Carrol,
412 Pa. 525, 194 A.2d 911 (1963). Others courts, probably a minority, require proof that the person

                                              Page 50 of 56 Pages
thought about the killing for "some appreciable time." E.g., People v. Anderson, 70 Cal.2d 15, 447 π.2d
942, 73 Cal. Rptr. 550 (1968).
(1) The problem with the first approach is that if "no time is too short," then every intentional (willful) killing
is also premeditated. If that is so, why would the legislature have divided the crime into degrees?
3. Courts rarely distinguish the term "premeditated" from "deliberate." However, when they do—which
they should—the latter term means "to
measure and evaluate the major facets of a choice or problem." People v. ~1
Morrin, supra.


a. "Premeditation" speaks to the quantity of time taken; "deliberation" concerns the quality of the thinking
processes during that time.
b. "Deliberation" is characterized by "cool, calm" thinking. For example, a person who acts in the heat of
passion does not act "deliberately."


A. A person acts with malice aforethought if she intends to inflict grievous bodily injury on another human
1. Example: D stabs V in the stomach with a large knife. V dies. D states that she did not intend to kill V.
Even if a jury were to believe her claim, which it need not, she could be convicted of murder because she
intended to inflict grievous bodily injury on V.
2. Courts rarely define "grievous bodily injury." When they do, ~e definitions vary. However, in general, it
means that the person intends to inflict an "injury that imperils life" or "is likely to be attended with
dangerous or fatal consequences." See, Wellar v. People, 30 Mich. 16 (1874); People v. Crenshaw, 298
Ill. 412, 131 N.E. 576 (1921).
B. This form of intent constitutes malice for various reasons.

1. As a matter of moral culpability, there is little difference between one who intends to kill another person
and one who seeks "only" to inflict an "injury that imperils life."
2. Furthermore, it is nearly impossible for a prosecutor definitively to prove which intent a criminal actor
possesses. virtually any time a person uses a deadly weapon, she can claim that she "only" intended to
inflict serious injuries on the victim.
C. In states that distinguish between degrees of murder, a killing Or this sort is usually treated as second-
degree murder.
1. This form of malice often merges into the "extreme recklessness" type of malice discussed next.

A. A person whose conduct manifests an extreme indifference to the value of human life—i.e., who acts
in an extremely reckless fashion—acts with malice aforethought.
1. Example: As a joke, D puts a gun with a single bullet in it at V's temple, spins the cylinder of the
revolver, and pulls the trigger, killing V. See Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946).
D is guilty of murder.
2. Example: D shoots into a moving train for no apparent reason other than to cause mischief. A
passenger is killed. Banks v. State, 85 Tex. Crim.
165, 211 S.W. 217 (1919~. According to the court, D "evinced a heart regardless of social duty," and is
guilty of murder.
3. Example: D, who is heavily intoxicated and has been warned by two police officers and a friend that he
should not drive, drives his truck at a high rate of speed, through stop signs and red lights, and collides
with a car that has the right-of-way, killing two persons. Pears v. State, 672 π.2d 903 (Alaska 1983). D is
guilty of murder.
B. Over the years, this type of malice has been variously and confusingly described. Among the terms
used are: "recklessness," "extreme reckless ness," "acting with a depraved heart," and "evincing a heart
regardless of social duty."

                                                Page 51 of 56 Pages
1. All of these terms have this in common: although D did not intend to kill anyone, she acted in an
extremely risky fashion, i.e., she took a substantial, unjustified foreseeable risk that her conduct would
cause a death. That is, a person who acts with this type of malice acts in a very dangerous fashion with
no good reason for doing so.
2. As discussed in Chapter 4, courts are divided on whether recklessness requires that the actor be
aware that she is taking a substantial, unjustified risk.
a. Usually the line between an extremely reckless, "depraved-heart" killing, which is murder, and a
criminally negligent (unfortunately, sometimes termed "reckless") killing, which is manslaughter, is that in
the former case D was aware that she was acting in a highly risky fashion, whereas in the latter case, the
risk-taking was inadvertent (she "should have been aware").
C. In states that divide murder into degrees, reckless murders usually constitute second-degree murder.


A. At common law, a person is guilty of murder if she kills another person, even accidentally, during the
commission or attempted commission of any felony. Regina v. Sern, 16 Cox. Crim. Cas. 311 (1887)
(Eng.). This is the so-called felony-murder rule.
1. Example: At gunpoint, D robs V, an overweight person with a history of heart disease. After D flees, V
dies of a heart attack caused by the fright of the robbery. D is guilty of murder under the felony-murder
rule. People v. Stamp, 2 Cal. App.3d 203, 82 Cal. Rptr. 598 (1969).
B. In states that divide murder into degrees, killings that occur during the commission of enumerated
felonies (commonly: arson, robbery, rape, and burglary) often constitute first-degree murder. All other
felony-murders are second-degree.
C. The felony-murder rule is extremely controversial.
1. Critics point out that in most cases in which the rule is applied, the felon has acted at least recklessly,
so that she could be convicted of murder under


that theory. The only purpose of the rule is to punish accidental killers. Yet this results in grossly
disproportional punishment. In effect, the intent to commit the felony is transferred to the homicide, which
is unfair.
a Imagine two pickpockets. Pickpocket A takes money out of V's pocket. Pickpocket B does the same
thing, but in her case V2 has a heart attack from the experience and dies. Both women are equally
culpable: each committed a theft; and each took the same risk (very little) that a person would die from
the act. A will be convicted of theft; B is guilty of murder. Yet, the death—the difference in the two case~
was accidentally caused and probably unforeseeable.
2. Advocates of the rule argue that it deters negligent and accidental ~killings during the commission of
felonies. See People v. Washington, 62 Cal.2d 777, 402 π.2d 130, 44 Cal. Rptr. 442 (1965).
a. The message that is sent to criminals is: if you decide to commit a felony, you do so at your peril. The
point of the message is not to deter the felony, but to deter the killing by making the felon commit the
crime in a less risky manner.
b. Notice: the rule is not intended to deter the underlying felony. The rational way to deter the felony is to
raise the punishment for that offense.
D. Because the rule is so unpopular, some courts have limited its scope in various ways. The most
common limitations on the rule are discussed below.
1. Dangerous-Felony Limitation: Although the "pure" felony-murder rule applies to killings that occur
during the commission of any felony, many states limit it to killings that occur during the commission of
"inherently dangerous" felonies.
What makes a felony "inherently dangerous?" Some courts look at the methods used by the felon in the
particular case. Others consider the crime in the abstract, i.e., they look at the definition of the crime in
order to determine whether the crime can be committed in a non-dangerous fashion.
The difference in approach is significant. Consider People v. Phillips, 64 Cal.2d 574,414 π.2d 353 (1966),
in which D obtained money from X under false pretenses by claiming to have a medical cure for V, X's
terminally ill child. V died as the result of D's fraud. D was prosecuted for felony-murder, based on the
felony of grand theft.
(1) Under the abstract test, which the court used, "grand theft" is not inherently dangerous because it can
be committed in a manner that is not dangerous to human life. Under the facts-of-the-case test, however,
D committed the theft in an exceptionally dangerous manner.

                                              Page 52 of 56 Pages
c. Notice that the abstract test renders the felony-murder rule inapplicable in many cases. For example, in
People v. Henderson, 19 Cal.3d 86,560 π.2d 1180 (1977), D falsely imprisoned V at gunpoint. The court
that the felony-murder rule did not apply because the felony—false imprisonment—was not inherently
dangerous. It reached that conclusion because the statute expressly prohibited imprisonment "effected by
violence, menace, fraud, or deceit." The court pointed to the disjunctive "or” in the statute: a person could
be guilty of the crime if she imprisoned the person by the non-dangerous means of fraud or deceit.
d. On the other hand, notice that if a court applies the facts-of-the-case rule, the felon's conduct will often
constitute extreme recklessness, in which case the felony-murder rule is unnecessary.
2. Independent-Felony Limitation: Some courts require that the felony that serves as the predicate for the
felony-murder rule be "independent" of the homicide.
a. The most obvious and least controversial example of a felony that cannot be applied under this
limitation is manslaughter. For example, suppose that D drove her vehicle in a criminally negligent
manner, and killed V. This constitutes involuntary manslaughter, a felony. Can this felony then be used to
say that V died during its commission, and thus bootstrap the case into a murder? Clearly not. Seem
alone v. State, 238 Ga. 251,232 S.E.2d 907 (1977).
b. Beyond this obvious case, the limitation is harder to define. Perhaps the best explanation of the
limitation is that the homicide must result from conduct that has "an independent felonious purpose."
People v. Burton, 6 Cal.3d 375,491 π.2d 793, 99 Cal. Rptr. 1 (1971).
(1) Example: D accidentally kills V during the commission of an assault with a deadly weapon, a felony.
People v. Ireland, 70 Cal. 2d 522, 450 π.2d 580, 75 Cal. Rptr. 188 (1969). As this felony consists of
nothing more than the violent conduct that caused the death, the felony "merges" into the homicide: it is
not independent of it. Therefore, the felony-murder rule does not apply.
(2) Example: D enters a house in order to commit an assault with a deadly weapon, during which a death
results. The felony here is burglary, which in turn is predicated on D's intention to enter the house in order
to commit an assault with a deadly weapon. People v. Wilson, 1 Cal.3d 431,462 π.2d 22,82 Cal. Rptr.494
(1969). The court considered this equivalent to Ireland: the felony is not independent of the homicide.
(3) Example: D kills V during an armed robbery, People v. Burton, supra. Although the robbery included
an assault with a deadly weapon, there is an independent felonious purpose to the conduct: to obtain
money. Therefore, this felony is independent: the felony murder rule applies.
c. The theory behind the limitation is this: the purpose of the felony-murder rule, as discussed above, is to
induce felons to commit their crimes in a less dangerous manner. The non-independent felonies —the
ones that merge into the homicide—are those that cannot be
committed less dangerously. For example, there is no way to commit an assault with a deadly weapon in
a safe fashion. On the other hand, a robber can be told, in essence, "If you want to take money, do it
without a gun."
3. Killing By a Non-Felon: In some jurisdictions, the felony-murder rule does not apply if the person who
commits the homicide is a non-felon.
a. Example: Dl and D2 rob a liquor store. During the robbery, X, the store owner, resists the felony and
shoots D2 . Or, a police officer shoots D2. Or, the store owner or officer, in attempting to shoot the felons,
accidentally kills V, an innocent bystander.
(1) In each of these cases, the felony-murder rule literally applies: there was a killing during the attempted
commission of the robbery. What is different is that the killer was a non-felon (the would-be victim or a
police officer), and (except for the last hypothetical) the victim of the homicide was one of the felons.
Query: Can Dl be convicted of felony-murder of D2, although he did not fire the gun? May Dl and D2 be
convicted of felony-murder of V, who was shot by the police officer?
(2) As discussed in State v. Canola, 73 N.J. 206, 374 A.2d 20 (1977), the courts have struggled mightily
with this issue.
(a) For a while, some courts applied a "proximate causation" rule, which held that a felon could be held
responsible for the killing by a non-felon if the felon proximately caused the shooting, which in most cases
can be proven from the facts. E.g., Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (1949),
overruled in Commonwealth ex. rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970).
(b) Now, nearly all states that have dealt with the issue apply an agency rule: a felon can only be held
responsible for killings that were committed in the furtherance of the felony by a person acting as her
"agent." Therefore, any killing by a non-felon falls outside the felony-murder rule.


                                              Page 53 of 56 Pages
A. An intentional unjustified, inexcusable killing, which is ordinarily murder, constitutes manslaughter (or
"voluntary manslaughter") if it is committed in "sudden heat of passion."
1. The "heat of passion" or "provocation" doctrine functions as a defense to murder, and as a partial
defense overall (as the defendant is guilty of manslaughter).
2. Example: D comes home and finds her husband committing adultery with V. Enraged, she pulls a knife
and stabs V to death. Although common law "adultery cases" dealt with husbands who walked in on their
wives, rather than vice-versa, the basic principle today would doubtlessly apply:
D, by killing V in sudden heat of passion as the result of the provocation of observing her husband in an
act of adultery, would be convicted of manslaughter.
3. Courts and commentators disagree as to why an intentional killing in heat of passion is manslaughter
rather than murder.
a. Sometimes courts treat the doctrine as if it functions as a partial justification for the killing, i.e., that the
provoker-victim partially deserved to die.
b. Usually, however, courts say—as they should—that the defense is a partial excuse. That is, the social
harm is unmitigated—the dead person did not deserve to die—but the culpability of the actor is reduced
because of the provocation.
B. For the defense to apply, various elements must be proved.

1. As the name of the doctrine implies, the defendant must kill the victim while in a state of passion.
a. Although the typical "passion" is anger, any over-wrought emotional state, including fear, jealousy, or
even deep depression, can qualify.
2. The passion must have been the result of "adequate provocation." The latter term has been variously
defined, but in general it is provocation that would render a person of ordinary self-control "incapable of
that cool reflection that otherwise makes it murder." Addington v. United States, 165 U.S. 184 (1897).
a. At early common law, "adequate provocation" was an issue of law determined by the judge. Only a few
types of provocation were deemed adequate. The most common were: a serious battery; mutual combat;
and observation by the husband of his wife in an act of adultery. "Adequate provocation" was not proved
if the husband was told of the adultery but did not see it; nor were words, no matter how insulting,
b. Today, the trend is to treat "adequate provocation" as an issue of fact for the jury, and to allow them to
decide what provocation would render the ordinary person liable to act rashly.
(1) In resolving this issue, a key question is: Who is the "ordinary person?" Is the ordinary person a man
or a woman? Old or young? Black or white? Jew or Gentile? Gay or "straight" (heterosexual)? A person
of ordinary physical capacity or a person with a handicap?
(2) The question is significant because a jury could determine, for example, that a man (whether for
cultural or biological reasons) is more liable to act violently than a woman in the same circum stances.
Furthermore, the race, religion, sexual orientation, and other characteristics of the person provoked may
be relevant in determining how a person would respond to particular provocative acts.

(3) The clear trend is to incorporate many of the defendant's characteristics, except those that relate to
her temper, into the "ordinary person."
(a) An example of the old approach is Bedder v. Director of Public Prosecutions, [1954] 38 Crim. App.133
(Eng.), in which D, an impotent male, sought to have intercourse with a prostitute, V. When he failed, she
taunted him and struck him lightly. The court held that the question of whether V's conduct constituted
adequate provocation had to be determined by whether it would have provoked a reasonable non-
impotent man to act violently.
(b) Now, a different result would be likely. Thus, in Director of Public Prosecutions v. Camplin, [1978] 2
A.ER. 168 (ng.), D, a 15-year-old boy, killed V, who had sexually attacked him. The court held that his
conduct should be tested by the standards of the ordinary 15-year-old in such circumstances.
3. The killing must occur in sudden heat of passion. That is, the defendant must not have had reasonable
time to cool off.
a. Usually the killing must occur almost immediately after the provocation. In some cases this requirement
is unrealistic. It ignores the psychological reality that an ordinary person may brood about a provocation
for a long time, allowing the passion to build, after which the pressure becomes so great that the enraged
person kills.
b. Some courts allow the jury to consider the defense in cases of brooding. For example, in People v.
Berry, 18 Cal.3d 509, 556 π.2d 777, 134 Cal. Rptr. 415 (1976), D was provoked off and on for two weeks
by V, his girlfriend. After the last provocation, D remained in V's apartment during her absence for 20
hours, brooding. When she returned, she screamed at him, and he killed her. Clearly, the screaming was

                                                Page 54 of 56 Pages
not adequate provocation: D's provocation claim was based on the earlier events. The court allowed the
defense to be raised.


A. A person who criminally negligently kills another person is guilty of

manslaughter, commonly termed 'involuntary manslaughter."

B. This offense often blurs into the depraved-heart version of reckless murder. See the comments in V.,
1. Example: In State v. Williams, 4 Wash. App. 908, 484 π.2d 1167 (1971), Ds, poorly educated parents
of V, did not take their seriously ill child to a doctor until it was too late to save his life. They acted as they
did in part because they were unaware of the seriousness of the child's condition, although reasonable
parents in their circumstances would have realized.
a. This conduct constituted criminal negligence. If they had been aware that their child had a life-
threatening condition and yet ignored it, their conduct would have constituted reckless murder.


A. In an analogue to the felony-murder rule, a person is guilty of involuntary manslaughter if she kills
another during the commission or attempted commission of an unlawful act that does not otherwise
trigger the felony-murder rule.
1. Example: D, an automobile driver, fails to stop at a stop sign, in violation of a traffic law, and strikes
and kills V. (On the facts, D's conduct did not constitute criminal negligence.) D is guilty of manslaughter
because the accidental death occurred during the commission of an unlawful act, a violation of the traffic
law. State v. Hupf, 48 Del.254,101 A.2d 355 (1953).
B. The scope of the term "unlawful act" differs among the jurisdictions.

1. Many states apply the doctrine to all misdemeanors as well as to any felony that is excluded from the
felony-murder rule.
2. Some jurisdictions limit the rule to malum in se misdemeanors, such as petty theft and battery. Others,
as in f~upf, apply it as well to malum prohibitum conduct.
3. Some jurisdictions apply the doctrine if the conduct that causes the death is wrongful but not illegal.
a. Example: D attempts to commit suicide. V seeks to save her, and in the process mortally hurts herself
and dies. If attempted suicide, although not criminal, is considered morally wrongful, D can be convicted
of manslaughter. See People v. Chrisholtz, 55 Misc.2d 309, 285 N.Y.S.2d 231 (1967).


A. The Code provides that a person is guilty of criminal homicide if she takes the life of another human
being purposely, knowingly, recklessly, or negligently. § 210.1(1).
1. A "human being" is a person who was born alive. § 210.0(1). The Code does not indicate when a
person ceases to be a human being, i.e., what the definition of death is. Therefore, absent some other
provision, the common law definition applies.
2. The Code divides criminal homicide into three offenses: murder, manslaughter, and negligent
3. Unlike many state statutes, it does not divide murder into degrees.
a. The drafters did not believe that there is a morally defensible way to distinguish between first- and
second-degree murder. For example, a parent who premeditates the killing of her terminally ill child is not
necessarily more culpable than a reckless drunk driver who kills a pedestrian or a person who, on whim
and without premeditation, pushes a child off a bridge to her death.

B. The murder statute ( § 210.2) differs in key respects from common law murder.
1. The term "malice aforethought" is abandoned.
2. Under the statute, criminal homicide constitutes murder in the following circumstances:
a. The killing is committed purposely or knowingly.

                                                Page 55 of 56 Pages
(1) In essence, this is equivalent to the common law "intent to kill" form of mens rea. Unlike many
statutes, premeditation and deliberation are not required.
(2) The Code abandons the "intent to inflict grievous bodily injury" form of murder, which the drafters
believed is more properly subsumed under the concept of recklessness.
b. The killing is committed "recklessly under circumstances manifesting extreme indifference to the value
of human life." § 210.2(1)(b).
(1) This is similar to the extreme-recklessness form of common law murder.
(2) The MPC abandons the felony-murder rule. However, as a com promise, it provides that indifference
to human life can be presumed if the person causes the death during the commission of an enumerated
(a) This is not a true presumption. The jury is permitted to infer extreme indifference to human life from
the commission of the felony, but it does not have to do so.
(b) Furthermore, the defendant may present evidence that she committed the felony in a manner that did
not manifest extreme indifference to human life. If the jury has a reasonable doubt about the matter, it
must find her not guilty of murder.
C. Criminal homicide constitutes manslaughter ( § 210.3) in the following circumstances.
1. The homicide is committed recklessly.

a. The difference between this and reckless murder is that in this case the conduct, although reckless,
does not manifest an extreme indifference to human life.
b. Notice: under the MPC definition of "reckless" ( § 2.02(2)(c)), D must be aware that she is taking a
substantial unjustified risk to human life. Therefore, the MPC differs from the common law in that the
latter defined manslaughter on the basis of criminal negligence, which is usually considered an
inadvertent mental state. That is, under the common law, the defendant could be convicted of
manslaughter although she was unaware of the risk she was taking. The Code will not permit this.
2. The MPC recognizes a broader version of the provocation doctrine and also allows courts to recognize
a "partial responsibility" diminished-capacity defense (see Chapter 17).
Under § 210.3(1)(b), D is entitled to raise the affirmative defense of "extreme mental or emotional
disturbance," which will reduce murder to manslaughter if there is a "reasonable explanation of excuse"
for the disturbance that led to the killing.
(1) Notice that this definition permits a jury to reduce the offense to manslaughter without considering the
rigid common law doctrines of adequate provocation.
(2) The Code also provides that the reasonableness of the explanation or excuse should be determined
from the vantage point of a person in D's situation "under the circumstances as [s]he believes them to
be." This allows for considerable "subjectivization" of the reason able or ordinary person.
3. There is no "unlawful-act" manslaughter under the Code.

D. A criminally negligent killing—common law manslaughter—is the lesser offense of "negligent
homicide" under the Code. § 210.4.

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