Criminal Law Outline


Table of Contents


Word List 3

The common law versus statutes. 4

What is a crime?. 4

Jury nullification. 4

Theories of punishment 4

Utilitarianism.. 4

Retributivism.. 5

Differences between the theories. 5

The principle of legality. 6

Burden of proof 7

The Winship doctrine. 7

The elements of a crime. 7

Actus reus. 7

Voluntary act 8

Omission. 8

Social harm.. 9

Mens rea. 9

Transferred intent 9

General versus specific intent 9

Kinds of culpability. 10

Mistake of fact 10

The “moral wrong” doctrine. 11

The “legal wrong” doctrine. 11

Mistake of law.. 11

Causation. 13

Actual cause. 13

Proximate cause. 13

Criminal homicide. 14

“Malice aforethought”. 14

Model Penal Code on criminal homicide. 15

Adequate provocation. 15

The reasonable man. 15

Depraved-heart murder. 16

The felony-murder rule. 17

The “inherently dangerous felony” limitation. 17

The “independent felony” or “merger” limitation. 18

Rape. 19

The resistance requirement 19

The common law rule of resistance. 20

The mens rea of rape and mistake of fact 21

Rape shield laws. 22

Defenses. 23

Justification. 23

Self-defense. 24

Common law principles. 24

The “aggressor” issue. 24

“Reasonable belief” at common law.. 24

“Self-protection” and the Model Penal Code. 25

Necessity. 25

Excuse. 26

Duress. 26

Insanity. 27

“Rotten Social Background” (RSB) Defense. 28

Cultural defenses. 29

Inchoate offenses. 29

Conspiracy and solicitation. 29

Attempt 29

Actus reus of attempt 31

Tests for attempt 31

Defenses to attempt 32

Factual impossibility versus legal impossibility. 32

Complicity. 32

Mens rea of accomplice liability. 33

Foreseeable consequences doctrine. 34

“Natural and probable consequences” doctrine. 35

Presence. 35

“Innocent instrumentality” doctrine. 37

Exam advice. 38

What Dressler looks for on tests. 38

The exam instructions. 39

The exam itself 39

Exam taking do’s and don’t’s. 40

Outlining on the exam.. 40

Writing an essay question. 41

Multi-party cases. 42

Multi-crime cases. 43



Word List









Common law

Accomplice liability



Negligent homicide


Strict liability

General intent crime

Specific intent crime




Principle of legality





Actus reus

Voluntary act

Social Harm

Mens rea

Actual causation

Proximate causation

Transferred intent



Depraved heart

Felony murder

Attendant circumstances

Deadly force

Failure-of-proof defense

General deterrence


Malice aforethought




Serious bodily harm

Specific deterrence


Irresistible impulse test

Product test

Innocent instrumentality doctrine

Aggressor status

Mistake of fact

Mistake of law

Factual impossibility

Pure legal impossibility

Hybrid legal impossibility

Reasonable person

Burden of proof




The common law versus statutes


Common Law is judge-made law – the basis of what we learn.  At common law, there were eight felonies.  Now, virtually anything is a crime.  Almost all states have abolished common law offenses.  The Model Penal Code says that common law crimes are out the window.  That doesn’t mean that the common law is irrelevant.


Common law crimes: Arson is defined as the intentional or reckless burning of the dwelling house of another.  Burglary is defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein.  Murder is the killing of a human being by another human being with malice aforethought.  At common law: Intent = purposefully or knowingly


Pretty much all criminal law is now statutory.  The common law has been grafted onto the statutes.


What is a crime?


Say some that what makes a crime different from a civil matter is the condemnation of the community, which is more important than the punishment.  You can have a heavier punishment for a tort than for a crime, so it’s not the punishment that really distinguishes criminal from civil.  It’s the community’s condemnation of you that makes the difference—you’re been found guilty of a crime.


Will this law be effective (except by coincidence)?  (1) You must know of the law’s existence.  (2) You need to “know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance”.  You have to know how the law is going to apply to you.  (3) You must be able to comply with the law.  (4) You have to be willing to obey the law.  This doesn’t mean you have to like the law.


Jury nullification


The jury is totally secret.  It doesn’t have to explain itself.  An acquittal from a jury is absolutely, positively final.  Therefore, the jury can always acquit the defendant for any reason without being subject to sanction or appeal.  Should juries have this power?


Advocates say that jury nullification protects against convictions that are legal but not moral.  Critics say that juries ought not to use nullification, because in practice it has had more negative effects than positive effects and because it results in the jury breaking their oath.


The prosecution could try to get a juror discharged if there’s evidence they will try to nullify.  The court must give the juror the benefit of the doubt because it mustn’t intrude upon the deliberative process.

State v. Ragland – Must a jury be informed of its nullification power in order for a verdict it returns to be valid?  There is no rule, which is why the court must make its decision on the basis of policy.


Theories of punishment


Utilitarianism and retribution are the most important tools we will use to study the criminal justice system.  We have a duty to be able to explain why we are punishing people.  There are two questions involved in how we distribute justice: (1) Whom do we punish?  (2) How much punishment is appropriate?  How do we distribute justice on a case-by-case basis?




Utilitarianism is forward-looking and tries to deter future bad conduct while increasing happiness and reducing pain.  Utilitarians believe that both crime and punishment are evils to be avoided.  A utilitarian doesn’t like punishment.  Human beings must be characterized by seeking pleasure and avoiding pain.  We must be able to do the calculations; we must be rational.


Forms of utilitarianism: (1) General deterrence – when you punish one person for a crime in order to send a message to society.  (2) Specific deterrence – when you deter person X by punishing person X: (a) By incapacitation – you keep the person off the streets or (b) by intimidation – you make the person scared to do it again because they remember how unpleasant the experience was being punished the first time.  (3) Rehabilitation – when you use the penal system to change the person such that they won’t want to do bad acts in the future; you diagnose the problem and then solve it.


Act-utilitarian – What would be the right thing to do in this particular case?


Rule-utilitarian – What would be the better outcome if we announced this to the entire world?  What would be the utilitarian effect?




“The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing.”  You can’t be angry at someone unless you believe they have the capacity to choose to either do right or wrong.  Retributivists focus on people having free choice or free will.  The retributivist says that it is society’s duty to punish and that this duty is independent of the consequences or costs or benefits.


Forms of Retributivism: (1) Negative retribution (utilitarianism*) – utilitarians, except punishing an innocent person is never justified.  (2) Positive retribution – pure retributivism: you must punish guilty people, and you must never punish an innocent person.  (3) Assultive – anger and hatred are morally right when directed at criminals.  This is kind of a disguised utilitarianism: if people hate a criminal, they will institution private justice.  So with the criminal justice system, we prevent vigilantism.  This views a criminal as a worthless human being who deserves what they get.  (4) Protective – Morris, and the classic modern retributive theory.  The importance of the theory is that it views the criminal as having the right to be punished.  (5) Victim vindication – we vindicate the victim’s moral rights by punishing the perpetrator.


Differences between the theories


Utilitarians don’t see punishment as inherently good; retributivists view punishment as inherently good and justifiable because there is a right and a duty to punish even if it doesn’t do any future good.  Utilitarians sound like economists trying to come up with an empirical justification for punishment and talk about profit.  Retributivists think as moralists do and talk about just deserts.  Retributivism makes us look to our moral roots.  Actually, some forms of retributivism turn out to be forms of utilitarianism.


It is plausible to argue as a utilitarian, given a particular situation, that punishing an innocent person would be the right thing to do.  Is this enough to abandon utilitarianism?  Could a retributivist punish an innocent person?  Categorically: no.  You may only punish a person who is guilty.


Most utilitarians are unhappy with a three strikes law.  They might oppose it from an efficiency standpoint.  They might also oppose it from the point of view that punishment is a social cost.


The Queen v. Dudley and Stephens – We will use Dudley and Stephens as an object lesson for the purpose of general deterrence.  Even if Dudley and Stephens aren’t deterrable in their particular case, the utilitarian must still find they are a useful example to others.  This case would send a message to be certain you are prepared when you go out on a boat because you’re going to be held liable for whatever goes on out there.


People v. Superior Court (Du) – The probation officer said Mrs. Du was unlikely to commit another crime but recommend she be sentenced to prison.  How much punishment is it just for Du to receive?  A just punishment should: 1) protect society, 2) punish the defendant for wrongdoing, 3) encourage the defendant to be good in the future, 4) deter other crimes, 5) incapacitate the defendant, 6) make restitution for the victim, and 7) be comparable to punishments for similar crimes.


A retributivist would say two criminals should get the same punishment for the same crime.  Retributivists say you must look at the actor as well as the act; you must look at personal blameworthiness as well as the social harm caused.  One controversy is whether a person’s personal character matters or should be considered.


United States v. Jackson – What punishment should Jackson receive?  The statute does not state a maximum penalty, but it does forbid release on parole.  Easterbrook says that the sentence imposed by the trial court is just on the basis of general deterrence and incapacitation.  Posner thinks there’s no chance under the current law to create general deterrence, therefore, he focuses on specific deterrence.  He says if you keep the guy in jail for 20 more years, he probably won’t commit any more crimes when released.


The principle of legality


The principle of legality is “no crime without preexisting law”.  This trumps any other rules if there is a conflict.  Courts don’t create crimes.  Statutes must be written clearly, and interpreted to the benefit of the accused.  If you have to rely on a prosecutor or judge to interpret criminal statutes, you give them enormous power.  The Due Process Clause says that potential criminals must have “fair warning” of what is against the law.


Commonwealth v. Mochan – The defendant’s conduct was not forbidden by any particular statute, but a general provision in the Pennsylvania Penal Code “grandfathered” in common law crimes.  The defendant was convicted and appealed on the basis that his conduct did not constitute a common law crime.  The court finds that any act which “outrages decency and is injurious to public morals” is a misdemeanor under common law.


Keeler v. Superior Court – The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute.  Statutes are to be interpreted in the manner most favorable to the defendant.  Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto legislation.  The protection of due process is the judicial analogue of the prohibition on ex post facto laws.  It is not the role of the court to make crimes, rather, it is the responsibility of the legislature.


In Re Banks – In order to be constitutional, a statute must clearly and “with a reasonable degree of certainty” tell persons who are subject to it what conduct is forbidden.  Banks claims that the “Peeping Tom” statute is overly broad, and thus it is unconstitutional.  He says that some of the conduct prohibited is entirely innocent.


The burden is upon the defendant to prove that a statute is invalid.  The court says that statutes must be strictly construed.  This is equivalent to the doctrine of lenity.  The doctrine of lenity says if there are two ways to interpret a statute where one way would favor the State and one way would favor the accused, the court must side with the accused.  It only applies when you’re right on the razor’s edge.  In other words, we give the benefit of the doubt to the defendant.


The court says that if a statute is clear, you just do what it says.  If it’s ambiguous, you look at legislative intent:  Read the statute carefully.  Read the preamble of the statute.  Read the title.  Look at legislative history.  Look at common law.  Look at precedent cases.  It’s hard to come up with a statute that will work!  It’s hard to avoid vagueness and overbreadth!


Burden of proof


There are two kinds of burdens of proof: (1) Burden of going forward, or the burden of producing evidence: Who has the responsibility of putting on evidence in a particular case?  The government has the burden of producing evidence regarding any element of a crime.  Anything that constitutes an element of a crime is something the government must put on evidence for.  On the other hand, for putting on a certain defense, it’s the burden of the defendant to show evidence of, e.g., self-defense.  (2) Burden of persuasion: Now that the issue is before the factfinder (jury or judge), who must convince the factfinder in regard to the issue?


Why do we have such a high burden on the government to prove their case?  The theory is that the cost to society of jailing an innocent person is much higher than releasing a number of guilty people.  Also, protection against overzealous police force, judges, prosecutors.  It has less to do with this particular criminal trial, and more to do with limiting government power in general.


Owens v. State – “[A] conviction on circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.”  The only issue on appeal, as distinguished from the trial court, is whether a reasonable jury could have convicted, not whether they would have acquitted or should have acquitted.  The appellate court wasn’t there to see the trial and should not play the role of the “13th juror”.  The jury sees stuff that the appellate judge never sees.  On appeal, the presumption of innocence is gone.  You assume that all of the facts that are in dispute favor the prosecution.  The appellate court can overturn the conviction if they think, “How the heck did the jury reach that verdict?”


The Winship doctrine


Winship tells us that the Constitution requires every prosecutor to persuade the factfinder beyond a reasonable doubt of every fact (element) necessary to constitute the crime charged.  The costs to an individual of conviction are so high that they should not be convicted when there is reasonable doubt of their guilt.  The benefit of the standard is that it assures public confidence in the system, and in particular, the standard inspires confidence that innocent people don’t get convicted.  The government doesn’t just have to prove the facts, they actually have to negate possible defenses (excuses, justifications).  So, for example, the absence of self-defense must be proved beyond a reasonable doubt.


Even though you might have the burden of going forward as the defendant in presenting evidence that you acted in self-defense, the government has the burden to prove beyond a reasonable doubt that the defendant didn’t act in self-defense.  But in some jurisdictions, the defendant has the burden of proof.


We put the right to a jury trial in the Constitution to prevent judges from oppressing the people.  The framers of the Constitution wanted the community to judge the defendant.


The elements of a crime


At exam time, this is the way we should organize our answers: (1) Voluntary Act (or omission), (2) Social Harm, (3) Mens Rea, (4) Actual Causation, then (5) Proximate Causation.


Actus reus


The actus reus is the physical component of the crime.  It happens out there, in the physical world.  The mens rea (or guilty mind) deals with the state of mind the actor had in committing the actus reus.  Actus Reus = Voluntary Act + Social Harm


Actus reus requires a voluntary act (or sometimes an omission, or failure to act) that causes social harm.  We say social harm because this is criminal law, not tort law.  Social harm means something very specific, yet it has a very broad meaning.


Martin v. State Martin is convicted of “being drunk on a public highway”.  It turns out that he is arrested at home and taken out onto the road.  He says that the statute implicitly requires him to voluntarily go to a public place while drunk.


Voluntary act


A voluntary act is a willed act or “a willed muscular contraction”.  This is the difference between choosing to pull a trigger and kill someone and having a seizure and plugging the trigger without will.  Warning!  Voluntary has several different meanings.


Questions to ask about the voluntary act or omission: (1) Was there conduct?  (2) If yes, does the conduct include a voluntary act?  (3) If no, is this one of those rare cases in which there is a legal duty to act?


State v. Utter – The Model Penal Code says that a “voluntary act” is a necessary element in any crime.  An “involuntary act” removes agency.  Agency is required to attach blame to a person, rather than merely a human body.  § 2.01 says:  In order to be found guilty, you must either do something or not do something that you were physically capable of doing.  The only ways you can be found guilty due to omission are: If the law says that your omission makes the crime, or if you breach a duty imposed by law.  The Model Penal Code eliminates the need to play with words.


People v. Decina Decina says he should be acquitted because he committed no voluntary act.  How can he be found guilty under the Model Penal Code?  The conduct must include a voluntary act.  That doesn’t mean that all the conduct must be voluntary.  The breadth or narrowness of the time frame will relate to the conduct that constitutes the crime charged.




Two forms of omission liability: (1) Statutory duty (e.g. tax laws, duties of parents, bad Samaritan laws), (2) Commission by omission: When a statute imposes a duty, when you a have certain status relationship to another, when you have assumed a contractual duty to care for another, when you have voluntarily assumed the care of another and in so doing kept others from helping, when you create a risk of harm to another


People v. Beardsley – Should people be punished for omissions?  Omission is defined as the neglect of a legal duty, rather than a merely moral duty.  If you have no legal duty to act, but you start to act, but then quit, you will have a duty if by having started then quitting you put the person in a worse position than if you had done nothing at all.


Barber v. Superior Court – Life sustaining treatment must be continued when it is proportionate.  In other words, the treatment must be continued so long as the benefits exceed the costs.  The main question is whether the omission (no longer providing life sustaining care) was lawful.  The omission was lawful if there was no legal duty to act.  There is no duty to act if the prescribed course of treatment has been shown to be ineffective.  In this case, the treatment is ineffective because the patient will never recover substantial brain function.  The court says the physician has no duty to act once the treatment is found to be “disproportionate”.


Social harm


Social harm means any harm to any socially valuable interest, and it has three components: (1) result elements, (2) conduct elements, and (3) attendant circumstances.


It is often difficult to draw a distinction between the result of an act and the conduct related to an act, but it usually doesn’t matter.  However, you must draw the distinction between these two elements and attendance circumstance.


Mens rea


The issue with mens rea goes to social harm.  Think: “Mens rea = thought about harm, NOT thought about act”.


We can’t deter pure accidents, nor can we find fault for pure accidents.  If you don’t have a guilty mind, we won’t find fault.


Whenever you talk about mens rea, think about whether you mean the “culpability” meaning or the “elemental” meaning.  The culpability meaning is the broad meaning that just means “evil mind”, more or less.  When a person is doing something he shouldn’t be doing and causes a certain social harm, we can say they did that act in a morally culpable manner.  The “elemental” meaning is “the particular mental state required by the definition of a particular offense”.  The elemental approach requires a more precise analysis than the culpability approach.


Regina v. Cunningham – Malice is not merely wickedness, but rather an actual intention to cause the social harm of the crime or to recklessly cause the social harm of the crime.


People v. Conley – Under Illinois law, someone intends to do something when that something is the conscious objective of his conduct.  Someone does something knowingly when they are consciously aware that something is practically certain to happen based on his conduct.


Transferred intent


Common law talks about the transferred intent doctrine, which says that “intent follows the bullet”.  If you had intent, but hit the wrong person, you still have the mens rea necessary to constitute the crime.  Model Penal Code § 2.03(2)(a) – your mens rea is purposely or knowingly if you cause a result that differs from the intended result only by who or what is affected.


General versus specific intent


There are at least three different definitions of general and specific intent.  Specific intent can mean the requirement of: (1) intent to commit a future act, (2) proof of a special motive, or (3) proof of the actor’s awareness of an attendant circumstance.


Today, as a general matter, we include mens rea words in most statutes.


“General intent” may refer to an offense for which no particular mental state is mentioned in the statute.  “Specific intent”, on the other hand, could refer to an offense that sets out a particular mental state as part of the crime. 


“General intent” may mean any mental state that only relates to the acts that constitute a crime, whereas “specific intent” would mean, in this case, a special mental element above and beyond the “general intent”.  When you have a specific intent crime, there are typically three types: (1) intent to commit a future act, (2) proof of a special motive, and (3) proof of awareness of attendant circumstances.


If an offense requires a culpable mental state but isn’t a specific intent crime, then it’s a general intent crime.


Kinds of culpability


§ 2.02. You must act purposely, knowingly, recklessly or negligently with respect to each material element of the offense to be guilty.


Intentionally.  At common law, this is basically the equivalent of Model Penal Code “purposely” and “knowingly” in one.

Purposely.  A person acts purposely when it’s their conscious object to do the conduct or cause the result.

Knowingly. A person acts knowingly when they are aware that the result is “practically certain” to follow.

Recklessly.  A person acts recklessly when they consciously disregard a substantial and unjustifiable risk.

Negligently.  The actor should be aware of a substantial and unjustifiable risk.  There is no subjective fault.


Dressler says that “P, K, R, N” is a continuum of culpability.  There must be either P, K, R, or N with respect to each material element of an offense.  This provision effectively means that the Model Penal Code applies an elemental approach rather than a culpability approach to mens rea.  You must show a particular state of mind, not just any bad or immoral state of mind.  When there is no specific kind of culpability given, you assume “P, K, or R”.  The Model Penal Code drafters don’t like the idea of ever punishing a person whose culpability is mere negligence.  If a legislature wants to punish a negligent person, they have to be totally explicit about it.


State v. Nations – In Missouri, the Criminal Code dictates that in order to prove that someone did something with knowledge, you must show that they were aware of the attendant circumstances necessary to constitute an offense.  Nations claims the defense that the state must prove that she knew the girl was underage.  In Missouri, knowledge means awareness of facts; here we’re talking about knowledge of an attendant circumstance.  This is not the Model Penal Code formulation.


What argument can be put forward against this “wilful blindness” provision?  It blurs the line between knowledge and recklessness.  What is the mental state of a person who is aware of a high probability that, for example, a female dancer is under the age of 17?  Isn’t that very similar to the definition of recklessness, which talks about disregarding a substantial and unjustifiable risk?  Many critics say this provision is no good because it defies understanding what it means to “know” something when in fact you don’t know it.


If, on the other hand, you require actual knowledge, as in Missouri, it will be harder to get convictions in cases like this.  We could attack this two ways: we could knock down the standard of culpability in the statute to recklessness, or else you can, by statute, ratchet up the mental state of “wilful blindness” to knowledge, as the Model Penal Code does.


United States v. Morris – One may be punished for damaging federal computers unintentionally if the damage resulted from intentional access to the computers.  Morris would have been found not guilty under the Model Penal Code because he did not perform all the elements of the crime knowingly.  He only accessed the computers knowingly.  He did not cause damage knowingly.  § 2.02(4) says that in the absence of clear language to the contrary, all the required elements of the offense must be accompanied by, in this case, knowledge in order to find guilt.


Mistake of fact


People v. Navarro – A good faith mistake is a defense when it negates a required mens rea of the crime.  Specific intent is negated by mere good faith mistake, and reasonableness is not needed.


If the belief was unreasonable, did he act in a morally culpable manner?  We would more or less be saying he was negligent.  There would be a mens rea, and thus some level of culpability.  Why did the court reverse the verdict?  He lacked the specific intent required for the crime.  Moral culpability is general intent.


What would Model Penal Code § 2.04 say about this case?  It says either the mistake does or does not negate the required mens rea for the crime.  If the mens rea is the “intent” or “purpose” to steal, and the mistake proves that the defendant did not have such a purpose, then the defendant must be acquitted.  The Model Penal Code rules!


“Mistake of fact” is not a true affirmative defense.  It is really a challenge to proof beyond a reasonable doubt of mens rea.  The first thing to do when you’re in a non-Model Penal Code jurisdiction is to ask: is it a general intent, specific intent, or strict liability crime?  If it’s strict liability, you’re done.  Intent doesn’t matter, and thus mistake doesn’t matter.  If you have a specific intent crime, you ask if the mistake relates to the specific intent portion of the crime.  If you have a general intent crime, then at common law you must apply a “culpability” analysis.  You must ask whether the defendant’s state of mind was blameworthy, and in particular you must ask whether or not their mistake, and in turn their behavior, was reasonable.  In the Model Penal Code, you always apply “elemental” analysis.


The “moral wrong” doctrine


When you use the “moral wrong” doctrine, you look at the world through the eyes of the defendant and assume the facts as the defendant himself understood them.  This doctrine says that if the defendant acted immorally, it is reasonable for him to assume the risk that the circumstances are different from what he thinks they are and thus be found guilty of some crime.  Here, we end up asking: are you a bad guy?  The answer turns out to be yes, even though there is a reasonable mistake of fact.  Many jurisdictions do not apply this doctrine anymore.  It is a position that some jurisdictions still do use.


Regina v. Prince – A reasonable mistake means there is no culpability.  However, this conviction was upheld.  Why?  Taking an 18 year old away from her parents was considered immoral even though it’s not illegal.  The other problem is the principle of legality.  If it’s so wrong to take an 18-year-old away from her parents, make it a crime!  There’s a lack of notice and the risk of the court creating crimes.  We do not live in a world where everything that is immoral is illegal.  There are lots of things that people do that are immoral that are not a crime.  It is up to the legislature to draw a line between the illegal and the merely immoral.


The “legal wrong” doctrine


The “legal wrong” doctrine is basically the “moral wrong” doctrine with the word “legally” substituted for the word “morally”.  Under common law doctrine, the defendant would assume the risk that the facts were not as he believed them to be, and be found guilty of a more serious crime.  It can be argued that this is unjust, because he may be convicted of a crime that requires a higher mens rea than he has.  Under the Model Penal Code, he will be convicted of the lesser crime.


It’s crucial at common law to distinguish between general intent, specific intent, and strict liability.  However, sometimes courts will fall back on the “moral wrong” or “legal wrong” doctrines when dealing with a general intent crime committed under a reasonable mistake of fact.


Mistake of law


Generally, mistake of law will not relieve an actor of criminal liability.  However, mistake of law may negate the mens rea necessary for a crime.


Look at Model Penal Code § 2.02(9): this codifies, more or less, the common law idea that generally knowledge of a law’s existence and understanding of its meaning is not a required element of an offense, unless the statute itself says to the contrary.


People v. Marrero – Mistake to law may negate intent but it is not a defense to a strict liability crime. 

The common law says that “Ignorance of the law is no defense.”  The utilitarian rationale for such a harsh rule is that admitting the excuse of mistake of law encourages ignorance of the law.  This is a classic utilitarian statement.  We’re willing to concede that this individual does not deserve punishment, yet our interest in persuading people to learn the law outweighs that individual’s interests.  On the other hand, if ignorance will never get us off, we have no incentive to learn the law.  However, if we make a reasonable effort to learn the law and are thus given a defense, we have a good incentive.


Retributivists say we mustn’t punish someone whose mistake of law is reasonable, because that person is not blameworthy.


Basically, we do not give people a defense from a mistake of law, except for very few special cases where they made a reasonable mistake based on an official statement of the law.  The Model Penal Code approach: § 2.02(9) does not ordinarily require proof that a defendant knew that a law existed or understood it.  § 2.04(1) creates the exception that if the definition of the crime itself requires knowledge of the law and you didn’t know it, then you lack one of the necessary elements for the offense.  § 2.04(3) provides a limited set of circumstances in which even though knowledge of the law isn’t an element of the crime, we allow a defense.  We don’t allow a defense based on a personal misunderstanding of the law, but rather a reasonable reliance on an official statement of the law from a public official or some other source.  A casual or unofficial interpretation of the law from a public official is no good.


Put this together with § 2.02(1): there must be a mens rea for each element of the crime.  In a sense, § 2.02(9) makes an exception to this general rule.


In short, you don’t have to prove that the defendant understood the law, usually.


What are the exceptions?  § 2.04(1) says that if the statute explicitly says you must know the law to be subject to it, then fine.  § 2.04(3) further says that you may have a limited defense on the basis of your reliance on an official statement of the law from an appropriate source.  This is a very limited exception, though.  However, § 2.04(3) does not permit a defense based on your personal misunderstanding of the law.  The defendant must reasonably rely on an official statement of the law (from an appropriate, specified source) that is afterward determined to be invalid.  Note that in these areas, the Model Penal Code is more or less a restatement of common law.


People v. Weiss – Weiss claims that he thought he had authority of law.  How does Weiss’s mistake differ in character from that of Marrero?  Duress might be relevant to the question of whether the mistake was reasonable.


Cheek v. United States – Cheek was indicted for failing to file and tax evasion.  In his defense, he argued that he sincerely believed he didn’t have to pay his taxes and thus he acted without the mens rea required for the crimes.  Does an honest but unreasonable belief negate willfulness?  A claimed good-faith belief need not be reasonable in order to be considered as a defense.


Look at § 2.04(1), which tells you that there’s an exception to the “ignorance is no excuse” rule when the statute specifically says you must have knowledge, recklessness, or negligence in regard to the law.


At common law, or in other words, if we’re not in a Model Penal Code jurisdiction, it’s ambiguous whether a culpability or mens rea word modifies everything that comes after or only some bits.




Actual cause


Here’s the definition: “But for the voluntary act or omission of the defendant, would the social harm of the offense have occurred when it did?”  If the answer to this question is “yes”, that means the defendant is not the actual cause of the harm.  If the answer to this question is “no”, that means the defendant is actually the actual cause of the harm.


Velazquez v. State – Courts usually use the “but for” test of causation, which says that a defendant’s act was the cause-in-fact of a result if it wouldn’t have happened if it weren’t for their action.  Sometimes, courts substitute the “but for” test with the “substantial factor” test when two or more defendants did the same thing at the same time causing the intended result.  Finally, some crimes have a “proximate cause” element that is wider than “but for” test.  Basically, courts won’t find defendants guilty if the result of their conduct was unforeseeable or when it just wouldn’t be fair to find them guilty.


With actual causation, we create a “line-up” of all the possible people who could have caused the harm.  With proximate causation, we pick and choose on grounds of justice which possibly blameworthy person we will hold accountable.


If something is a proximate cause, then it is an actual cause.  Therefore, you must discuss actual cause first and then discuss proximate cause.


Proximate cause


There is no categorical rule that answers these questions.  Now we’re in the area of deciding what is just and fair.  Whenever you think about a proximate cause question, think about a line going from the act of the defendant and the social harm.  Then you look to see if there were any other “but for” causes that occurred between the time of the voluntary act and the time of the social harm.  If there is nothing that comes between the act and the harm, then it is a case of “direct harm”.  That’s an easy case; the defendant is in the actual cause “lineup” by himself.  Often, however, there will be some “intervening cause” that comes between the act and the harm.  Now we have a serious proximate causation issue because we must decide who we want to hold responsible.


Kibbe v. Henderson – By statute, the state must prove beyond a reasonable doubt that the defendant caused the victim’s death.  In this case, we have a number of intervening causes.  We are forced to decide whether or not we should hold the defendant accountable for the death, even though he didn’t want to kill the victim.  If we don’t blame the defendant for the death of the victim, who do we blame?


The real issue is a policy issue.  Is it just to hold someone responsible for a harm given the way in which it happened?  In other words, the Model Penal Code is getting away from all the complicated tests from common law and is suggesting that we give the jury the basic question of whether the result is just.


That’s not to say that the common law rules and doctrines are no longer relevant.  As an attorney, you will want to use them for the purposes of arguing justice to the jury.


There is no black letter rule for judging proximate cause.  However, there are a number of tests and standards for proximate cause.


Coincidental and responsible intervening causesAn intervening act is a coincidence when the defendant’s act just put the victim in the wrong place at the wrong time, in which case the defendant is not the proximate cause unless the result was foreseeable.  On the other hand, an intervening act is a response when the act is a reaction to the conditions made by the defendant for the victim, in which case the defendant is the proximate cause unless the intervening cause is unforeseeable and very highly unlikely, bizarre, and abnormal.


The intended consequences doctrine – Based on the intended consequences doctrine, we reach back to the person who intended to cause the harm to find the proximate cause of the harm.  In other words, the mother got what she wanted, though not the way she wanted.  We will probably hold her to be the proximate cause of the death.  However, we must say “probably” because this is just one way to look at proximate causation.


The apparent safety doctrine – The “apparent safety” doctrine says that once the danger from the defendant is no longer present, we no longer consider that defendant a proximate cause.  The question is: did the victim reach “apparent safety”?  Since she could have easily gotten into the house, we would assign proximate cause for her death to her based on this doctrine.


There are a number of other tests in the book.  To get familiar with these tests, Dressler recommends trying problem 11G on page 208.


The Model Penal Code on proximate cause – The Model Penal Code advocates a “frank, justice-oriented analysis”.  If a defendant is the actual cause of the result, it permits conviction so long as the “actual result…is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability”.  § 2.03(2)(b) and (3)(b)


Criminal homicide


Murder is the killing of a human being by another human being with malice aforethought.


The distinctions that exist at common law and in the Model Penal Code as well as the various non-Model Penal Code homicide statutes between murder and manslaughter as well as between degrees of these crimes are all functions of mens rea.  The act is always the same: killing somebody.  It’s just the mental state that changes.  Everything that we’ll be covering in the remainder of this chapter will deal with mens rea.


What’s murder at common law?  It’s “the unlawful killing of another human being with ‘malice aforethought’”.  There are no degrees of murder at common law!  Know this for the exam!  “Degrees” of murder are purely statutory.  At common law, all felonies carried the death penalty.  States decided that not all felonies deserve the death penalty.  When we’re talking about degrees of a felony, we’re talking about statutes.


What’s the common law definition of manslaughter?  It’s the unlawful killing of another human being without “malice aforethought”.  Notice that in this case, there are lawful killings of other human beings without malice aforethought, such as killing in self-defense.


At American common law, there are really two kinds of manslaughter: so-called voluntary and involuntary manslaughter.  These distinctions existed in England by statute, but here it’s a common law concept.


“Malice aforethought”


What is “malice aforethought” at common law?  It is either (1) the intent to kill, (2) intent to cause grave bodily harm, (3) recklessness (depraved heart), or (4) the intent to commit a felony (felony-murder rule).  There must not be a justification, an excuse or any mitigating factor.  How did we define acting with “malice” earlier in the semester?  It means acting “intentionally [purposefully or knowingly] or recklessly”.  “Aforethought” doesn’t really mean anything anymore.


State v. Schrader – On appeal the defendant says that for a killing to be premeditated, there must be intent to kill for some finite period of time before the act occurs.  This is incorrect according to the interpretation of the statute in the state at the time: no time is too short for someone to form the intent to commit murder.


An intentional killing that is notpremeditated and deliberate” would be second degree murder.


Model Penal Code on criminal homicide


In the Model Penal Code, there are no degrees of murder, but there are degrees of felonies.  Murder is a felony of the first degree in the Model Penal Code.  That’s not the same thing as murder in the first degree.  Murder is a felony of the first degree, just like rape and some other crimes.  At common law, murder is murder and that’s how it is in the Model Penal Code.


The Model Penal Code doesn’t contain a requirement of “malice aforethought” or the word “unlawful”.  We just have PKRN.  The Model Penal Code is, in a sense, a return to the common law.


The standard for determining premeditation is whether the defendant had time to take a “second look” before acting.  Deliberation involves “weighing” the issue.  Premeditation is how long you think about your act.  You could premeditate without meeting the deliberation requirement.


Midgett and Forrest – If these two cases are rightly decided, we find that Midgett committed second degree murder, while Forrest committed first degree murder.  Have we come up with a meaningful way to distinguish first and second degree murder?  Does the “willful, deliberate and premeditated” distinction do the work we want it to do?  Is the Model Penal Code right that we shouldn’t have degrees of murder?


Adequate provocation


Here are the requirements for mitigation from murder to manslaughter: (1) Adequate provocation, (2) heat of passion, (3) lack of opportunity for the passion to cool, and (4) causal connection between provocation, passion, and act.  At common law, words alone never constitute adequate provocation.


Girouard v. State – Words can only constitute adequate provocation to mitigate if they are accompanied by the threat of bodily harm.  The reason for this rule is that as a matter of social policy, we don’t want domestic disputes to end in the killing of a spouse.  Strictly speaking, in Girouard, the provocation is not words alone because the victim jumped on the defendant and pulled his hair.  But at common law, words alone are never adequate provocation to partially justify or partially excuse homicide.


The reasonable man


To what extent should we “subjectivize” the “reasonable man” standard?  It is argued that if you include some subjective characteristics, you must include all characteristics.  There are several ways we might want to bring a defendant’s characteristics into the “reasonable man” standard: (1) Was the defendant really provoked to lose self-control?  (2) Was the provocation severe to a reasonable person?  (3) How much self-control is expected of the reasonable person?


Director of Public Prosecutions v. Camplin – Should the defendant’s reaction be judged against a reasonable grown-up or a reasonable boy?  The text of the Homicide Act refers to the “reasonable man”.  Should we include the defendant’s age in the description of the “reasonable man” we will compare him to?  Why should gender count?  Should women be held to a “reasonable woman” standard?  That’s a higher standard than “reasonable (male, manly) man” or “reasonable person).


People v. Casassa – In a bench trial, the defendant argued the partial excuse of extreme emotional distress.  The judge found him guilty of murder.  The defendant appealed on the basis that he wasn’t allowed the extreme emotional disturbance defense.


The Model Penal Code standard for extreme emotional distress is more subjective than the common law standard.  The Model Penal Code does not talk about “adequate provocation”.  Instead, it only talks about extreme mental or emotional disturbance.  The Model Penal Code has both an objective and a subjective test for the reasonableness of the extreme emotional disturbance that is put forward as a partial excuse. The word “situation” in the Model Penal Code section on manslaughter is ambiguous by design.  It’s your role as an attorney to make the argument why a jury should come out a certain way.  The Model Penal Code claims that the bottom line is whether the jury can be sympathetic to a defendant in a particular case.


The defendant must show that he has a reasonable reason for being in the condition he was in.  If the judge finds that there was extreme emotional disturbance, then the jury would decide whether or not that disturbance was reasonable.


Depraved-heart murder


We will consider cases where the defendant does not intend to kill, but may still be found guilty of murder.  The defendant takes an unjustified risk.  If we have a continuum of risk-taking, there will be some risk-taking that is entirely innocent at one end.  Further down the line, there is risk-taking that might constitute negligence at a tort level, followed by risk-taking that might constitute negligence in criminal law.  Finally, at the other end of the spectrum we’ll have recklessness, and in some jurisdictions even extreme recklessness.


These cases talk about express and implied malice.  At common law, when the court talks about express malice it is talking about intent to kill.  Implied malice suggests any of the other three formulations of malice.


Berry v. Superior Court – In California, the defendant must be shown to have had a knowledge of the “high degree of risk”, or in other words, they must be shown to be reckless, in order to be charged with murder as opposed to manslaughter.  No one claims that there was intent to kill.  Berry took an unjustifiable risk.  The expected harm (pL) exceeded the benefit of keeping the dog in the neighborhood (B).  A reasonable person would not take such a risk.  If the reason for taking the risk is socially useless or unacceptable, then any risk is unjustifiable.


In the Model Penal Code, both the definitions of both recklessness and negligence include a “substantial and unjustifiable risk”.  If you take this literally, then you could get into a strange situation: if a tiny risk is unjustifiable but not substantial, you might not be found culpable.  But another way to view this is to look at it as a “substantially unjustifiable risk”.  Extreme recklessness will be murder at common law or under the Model Penal Code.


State v. Hernandez – Evidence is admissible so long as it goes to show that the defendant had the mens rea necessary for the particular offense charged.  The defendant argues that the evidence in dispute speaks only to his character rather than his awareness of risk.  His awareness of risk was not at issue because the prosecution charged him with a crime that does not require such awareness.


At common law, when someone is found to be reckless, they possess malice and thus they have committed murder.  If they are criminally negligent, they have committed involuntary manslaughter.  If they don’t meet criminal negligence, they will not be criminally liable.  However, under the Model Penal Code, if someone commits homicide recklessly, it could be either murder or manslaughter.  Manslaughter is a reckless killing, while murder can be a “reckless plus” killing.  If the person killed negligently, they can be charged with negligent homicide, which isn’t even in common law.


The Model Penal Code says that when negligence is sufficient to establish an element of an offense, that element is also satisfied by acting purposely, knowingly, or recklessly.  The Model Penal Code has a continuum of culpability.  The Model Penal Code says that if a person is charged with negligence and the prosecutor is able to prove purposefulness, knowledge, or recklessness, it does not preclude the prosecutor from convicting for negligence.  This seems quite logical.  Let’s say a person is charged with negligent homicide.  The defendant could go on the witness stand and make an argument that he intended to kill.  Then, absent this rule from the Model Penal Code, we might be led to believe that we must acquit the defendant of negligent homicide.


State v. Williams – In Washington, manslaughter is any homicide committed with simple (as opposed to gross) negligence.  Furthermore, homicide is excusable if it is committed accidentally while “doing any lawful act by lawful means, with ordinary caution”.  The standard of negligence that had to be proven in this case was civil negligence, or in other words, tort-level negligence, not gross negligence.


The Model Penal Code does not look kindly upon punishment of negligence.  Is there any basis for ever punishing a person who is incapable of living up to the established, objective standard?  It’s hard to blame someone who is not capable of being otherwise, but on the other hand, from a utilitarian perspective, we may want to keep these people off the street.


The felony-murder rule


It can be argued that felony murder is a strict liability crime.  99% of cases of real world felony murder do not require the felony-murder rule to convict.  Usually, you can show a depraved heart.  Usually, when a prosecutor uses the felony-murder rule, they already have intent to kill or depraved heart.


People v. Fuller – Under California law, all murder that is committed while committing another felony is considered first degree murder.  Consider the rationale that the felony-murder rule will help deter the underlying felony.  This seems totally bogus, because why don’t you just up the penalty for that felony?  Let’s say, on the other hand, we can’t deter felons.  Maybe we can get the felon to at least commit their felony in a way that reduces the risk that human life will be taken in the process.  Maybe, for example, this will give the escapee an incentive to escape safely.  Dressler believes that this is the best utilitarian argument for the felony-murder rule.  He doesn’t necessarily think it’s correct.  He says it is subject to empirical analysis.


At common law, the felony-murder rule is a pure, absolute rule.  Any killing that occurs during the attempted commission of a felony would trigger this rule.  However, this rule is controversial, and so courts have tried to find ways to limit the rule.  These are judge-made limits.  Some jurisdictions keep the common law rule.  Other jurisdictions have imposed certain limitations on the rule.  California was a leading state in trying to limit the felony-murder rule at the time these two cases were decided.


The “inherently dangerous felony” limitation


People v. Burroughs – To determine whether the felony-murder rule should apply in California, you must use a two step process: (1) Does the primary element of the offense necessarily involve danger to human life?  (2) Do the factors elevating the offense to a felony render that offense dangerous to human life?  There are two alternative “inherently dangerous” standards: a felony is considered inherently dangerous if (1) it is “dangerous in the abstract” or (2) it is dangerous based on the facts of the case.


Does this limitation make sense?  We have previously discussed arguments in favor of the felony-murder rule.  What’s the best utilitarian rationale for the felony-murder rule?  We want to give felons an incentive to commit their felonies safely.  Let’s say someone commits felony pickpocketing.  Under this limitation, we wouldn’t apply the felony-murder rule to pickpocketing.  Dressler says if we accept the felony-murder rule, and we accept that the previously stated justification for this rule (safe felons, safe felonies) is the best one, then it makes sense to exempt the pickpocket from the felony-murder rule.


Is possession of a concealed firearm inherently dangerous?  This is a very common statute.  Once you’ve been convicted of a felony, you basically lose the right to possess a concealed firearm.  What the California Supreme Court said was that white collar felons carrying concealed firearms are no more dangerous than just regular folks carrying concealed firearms.  So their answer was no, carrying a concealed firearms is not inherently dangerous because it could be done in a matter no more dangerous than the average schmoe carrying around a firearm.


How does the court cut off the felony-murder theory?  The court finds that practicing medicine without a license is not “inherently dangerous”.  (1) The court looks at the statute and decides in the abstract whether this is an inherently dangerous felony.  (2) The court asks: how dangerous must a felony be in order to be inherently dangerous?


What is the standard the court uses?  The court considers whether an offense may be committed without a “high probability” of loss of life.  The court finds that you can violate the statute without any risk of causing death.  For example, you could make someone’s mental illness worse without killing them.


As long as you can imagine a way that a crime can be committed without creating a substantial risk of death, the crime in question is not inherently dangerous.


People v. Henderson – False imprisonment is defined as “imprisonment effected by violence, menace, fraud, or deceit”: it uses its terms in the disjunctive (“or”). Therefore, the crime described can indeed be committed without a high risk of causing death.  So false imprisonment is not inherently dangerous.


The “independent felony” or “merger” limitation


People v. Smith – In California, the felony murder rule is “inapplicable to felonies that are an integral part of…the homicide”.  In such cases, the latter felony must be “merged” into the homicide and murder must be proven by one of the other three types of “malice”.


If a state uses both rules, there is sort of a “ceiling” and a “floor”.  Felonies that aren’t inherently dangerous can’t get a felony-murder conviction, but felonies that are, in a sense, too dangerous won’t support a felony-murder conviction either because they will merge.  The only type of felony that remains is one where it was something inherently dangerous, yet it wasn’t integral to the homicide.


The California Supreme Court adds a caveat: if a felony has an “independent felonious purpose”, it can be used with the felony-murder rule.  Note that this independent purpose must be felonious.  Discipline of children is not inherently felonious.


If a state applies both the “inherently dangerous” limitation and the merger limitation, what’s left?  The most dangerous felonies are excluded and the least dangerous felonies are excluded.  This would include felonies that are inherently dangerous, but not assaultive.  Robbery may fall in this gap.


A court that doesn’t want to apply the felony-murder rule can knock out pretty much all the felonies it wants by applying these two limitations.




Almost all of what constitutes rape is the actus reus.


State v. Alston – If an act of sexual intercourse is by both force and against the victim’s will, it constitutes rape even if the victim gave consent to the defendant for previous acts of sexual intercourse.  The court finds there is sufficient evidence that the sex was against the victim’s will, but it finds insufficient evidence that the sex was forced.  The court finds that there were acts of force and threats of force, but the court considers them unrelated to the act of sexual intercourse.  The court seems to suggest that it is necessary for the victim to resist the act of sexual intercourse in order for it to be rape.


This case, according to Dressler, represents the most traditional case of rape.  We’ll go from here and see how there has been movement over time.


In North Carolina, second degree rape involved: Vaginal intercourse, with force, against the victim’s will, without the victim’s consent.


Here are some issues to keep in mind: Keep in mind the potential distinction between force and the threat of force.  In some statutes, force is required, while in others, only the threat of force is required.  This court says that there may be non-consensual sex that is not rape.


Was the court right in saying that there was insufficient evidence to show force or the threat of force?  What facts might the prosecutor point to that would prove that the defendant forced the victim to have sex?


State v. Rusk – Was the Court of Special Appeals correct in reversing Rusk’s conviction?  In particular, was the reasonableness of the victim’s apprehension of fear a question of fact or a question of law?   Is the evidence in the record of the case sufficient for a finder of fact to conclude that the act of intercourse in this case was accompanied by “force or threats of force” and to thus find Rusk guilty beyond a reasonable doubt of second degree rape?  Under the Maryland statute at the time, the offense of second degree rape is defined as vaginal intercourse accomplished by force or threat of force against the will and without the consent of the other person.


The resistance requirement


If there is a resistance requirement, then we are in some sense trying the woman and asking if she resisted adequately.  In the traditional law, you can have force with consent.


Some courts argue that resistance is part of force.  Other courts interpret the “against the will” part to suggest there must be some kind of physical battle going on.  “Requiring” the woman to resist for there to be a successful rape prosecution may actually increase the risk of physical harm to the woman.  Maybe we need to provide notice to the man that the woman is not consenting.  Resistance could be conceived of as a form of notice.  Also, we’ll need to prove a mens rea of rape, though it is a general intent crime.  A reasonable mistake of fact would be a defense to rape.  If the woman resists, and the man proceeds anyway, it vitiates his possible defense of reasonable mistake of fact.


Another argument out of the common law is that if a woman is “what a woman is supposed to be” that the only natural thing for the woman to do is to protect her “virtue”.  Therefore, the argument goes, if she doesn’t care enough about her “virtue” to protect it, then why should we?  This probably stinks to us now.


Coughlin tried to explain the law of rape in terms of the Victorian period and the use of rape as a defense to adultery.  All forms of fornication (sex outside of marriage) were considered immoral.  So if the woman resists, it shows that she was an unwilling participant in something that was considered a crime on the part of both parties.


The common law rule of resistance


If the man used force likely to cause death or serious bodily injury, the law at common law did not require the woman to resist.  If the man used less force, then the woman was required to resist.  At common law, the woman had to resist to the utmost to fight the man off.  But if the woman has to resist, one of two things happens: (1) the man stops, or (2) the man overcomes her resistance, which constitutes the force necessary to the offense at common law.


If we take away the resistance requirement, how much force is needed?  Is the sexual act itself the force?  If there is a genuine resistance requirement in the law, it is much easier to determine by law if a rape has occurred.  If we remove the resistance requirement, it will be a lot harder to tell whether rape has occurred.


Maximalist – anything that is immoral should be criminal.  Minimalist – not everything that is immoral should be criminal; only the worst acts should be criminal.  Every year, the Penal Code gets thicker.  We seem to be moving away from a minimalist approach.  But no one would suggest that we’re approaching a maximalist approach.  Dressler proposes that most people aren’t going to be upset by this.  We all sometimes do things that are immoral.  In this country, we do not treat morality and criminal law as exactly the same.  In certain theocratic countries, it might be different.  In the United States, we don’t punish people for being less than perfectly virtuous.


Commonwealth v. Berkowitz – Under the Pennsylvania statute at the time, does the victim saying “no” allow us to construe force on the part of the defendant?  Under the rule of Rhodes, the judgment of whether forcible compulsion or the threat of forcible compulsion occurred is to be judged on the “totality of the circumstances”.  No matter what the victim may have meant by “no”, there is the mens rea question of what the defendant understood by her saying “no”.  A reasonable mistake of fact is normally a defense to a general intent crime.  Rape is a general intent crime.


The Model Penal Code provides for a lesser offense related to rape called “gross sexual imposition”.  Might that apply in Berkowitz?  The thing is that this offense requires a threat rather than actual force.


State of New Jersey in the Interest of M.T.S. – Is any force required besides the force of sexual intercourse itself to find the defendant delinquent for second-degree sexual assault?  NEW RULE!  “[A]ny act of sexual penetration engaged in…without the affirmative and freely-given permission of the victim…constitutes the offense of sexual assault.  Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful.”  The court focuses on the defendant’s conduct and rejects any judgment passed upon the victim except as it pertains to the actions of the defendant.  If you don’t get permission, it’s sexual assault.


If the evidence shows beyond a reasonable doubt that the defendant knew that the sexual penetration was accomplished without freely given affirmative permission, then the defendant should be found guilty.  If the evidence shows beyond a reasonable doubt that the defendant believed that the sexual penetration was accomplished with freely given permission, then the factfinder must consider whether, given the totality of the evidence, that belief was reasonable.


So what is the new rule of sexual assault in New Jersey?  In other words, if I’m going to have sex, how can I make sure I won’t be prosecuted?  The court says that you must get “freely given affirmative permission” to engage in the sexual penetration.  Unless a party gets such permission, the mere act of sexual penetration constitutes the force required under the definition of the crime.


Does “without consent” necessarily mean “against one’s will”?  When we ask whether something was done without consent, aren’t we inquiring into an internal state of mind of the alleged victim?  Dressler says that permission is an “externalized” form of consent.  In New Jersey, permission can only be given by acts or statements.  Permission cannot be given by omission.  Permission must be externalized.


Is this a good way to define criminal sexual assault?  How could the defendant prove that the alleged victim gave permission?  Imagine how humiliating the trial has just become!  But how else can the defendant defend himself?  This sends a message to women about whether they want to bring charges.  The Kobe Bryant case shows just how embarrassing a rape prosecution can be to a woman.  M.T.S. stands alone.  We don’t know what it means, and we don’t know what other states might argue it.


The mens rea of rape and mistake of fact


The issue of mens rea in the area of rape is almost always whether the man believed that the female was consenting to sexual intercourse.  This is mistake of fact, which we’ve already covered.


Rape is a general intent offense.  Thus, we apply a culpability analysis and ask whether the defendant’s mistake of fact was reasonable.  If the defendant’s mistake of fact was unreasonable, we are clear to convict.


MacKinnon thinks the mistake of fact defense is stuuuuupid!  Why is this statement not as silly as it sounds?  We point to the law and say that a rape has not occurred without an actus reus and mens rea.  It’s different to say that someone was “raped” in the actus reus sense than to say that someone committed the crime of rape.  There’s a problem of vocabulary.  When we talk about murder, it would make sense to say that someone was “killed, but not by a murderer”.  There isn’t quite equivalent language for rape, unless maybe we use “forcible, non-consensual sexual intercourse” for the actus reus of rape.


Commonwealth v. Sherry The defense of mistake of fact requires such a mistake to be reasonable and in good faith.


What would be the level of mens rea required to be guilty of rape at common law?  It would appear that it’s negligence.  If the man should have known that the woman was not consenting, that’s negligence.  That doesn’t mean that unreasonable mistake of fact always implies negligence rather than, say, recklessness.  Rape turns out to be a crime of negligence.  Dressler’s problem is that once you say a mistake is unreasonable no matter what, that’s strict liability.  Once you hear the words “you assume the risk”, it’s strict liability.  That would convert rape to a general intent crime to a strict liability crime.  You’re going to basically get in trouble for wanting to have sex with someone.


At common law, there is always an issue of interpreting instructions as to whether a certain mens rea term modifies one or several subsequent actions.


Think seriously about the question of what the mens rea of rape ought to be.  As the definition of the actus reus of rape is expanded to include more and more potentially ambiguous events, the claim by the defendant that “I thought she was consenting” becomes more plausible.  This was not previously an issue under the more narrow rape laws of the past.


One view is that as soon as a woman says “no”, the defendant proceeds at his own risk.  Any belief that the “no” didn’t mean “no” would be deemed unreasonable mistake of fact as a matter of law.  Is there a time-framing issue?


There is a movement going to try to make rape into “sort of” a strict liability crime.  It’s getting increasingly difficult for a defendant to get a mistake of fact claim to a jury.  There’s also a trend in the opposite direction.


Regina v. Morgan – This is the so-called “kinky wife” case.  The husband of the victim told the other men that his wife will resist, but that’s just a game for her and they need not mind it.  This was false; she was really resisting.  The perpetrators argued that she was consenting because the husband told them she was consenting.


It is argued that the defendant intended to have sex with the victim with her consent.  In Lord Hailsham’s mind, rape is a specific intent crime because “intent” modifies the attendant circumstance of “without her consent”.  If we have a specific intent crime, we use elemental analysis and ask whether the mens rea of the crime was proven or not.  In other words, does the mistake of fact negate the required mens rea of the crime?


Under this view, Lord Hailsham makes sense.  If we use an elemental analysis, then the prosecution must prove beyond a reasonable doubt that the defendant intended to (1) have sex, and (2) do with without the woman’s intent.


Due to this decision, rape becomes a specific intent crime in England for a short time.  When the public found out about this, they got mad a demanded a new statute.  Parliament backed away from Morgan.  So, England is moving somewhat in the opposite direction from the United States.


Under the Model Penal Code, since no mens rea term was mentioned in the rape statute, the level of mens rea required would be P, K, or R, just like in the English law.


Rape shield laws


The basics – Here’s the problem these laws are designed to fight: the defense will try to get a bunch of evidence out to try to make the alleged victim look like a “slut”.  It can be argued that this evidence is relevant because it would go to show that the alleged victim has consensual sex a lot and therefore could reasonably be seen to have had consensual sex in this particular case.  But even when you can make that argument, the character of the alleged victim is damaged and the jury becomes prejudiced.


This will be awful for the woman.  Also, why would a woman ever report the crime?


We might admit evidence that the woman in the Kobe Bryant case had consensual sex on other occasions, but under rape shield laws, we won’t admit evidence that she had consensual sex with others.


The first question in any criminal or civil case is whether or not the evidence is relevant.  If it’s not relevant, it doesn’t belong in the trial.  Is it relevant that the victim had blond hair?  Is it relevant that the defendant wore a beard?  You can imagine situations where both are relevant though in many cases these facts would not be relevant.


All that relevant means is that there’s something about those facts that would move the rational factfinder towards the side of the prosecution or defense.  Some facts are hugely important, and some are just barely relevant.


The second question is whether the probative value of evidence outweighed by other factors?  For example, in the O.J. Simpson case, the prosecution wanted to introduce evidence that Simpson beat his wife.  Is that evidence relevant to whether he killed her?  Maybe it is relevant.  But is its relevance outweighed by other factors?  In Criminal Procedure, you learn that prior bad acts are not admissible as evidence to the jury because they may be prejudicial.  If the evidence has a small amount of factual significance versus a big amount of prejudice, then that evidence doesn’t get admitted.


There may also be a factor of time consumption.  How long will it take to put on the evidence?  If it will take six hours to put on this evidence, but the probative value is low, we might boot it out.


Except for rape shield laws, the admissibility of evidence is determined primarily by the judge on a case-by-case basis.  What is unusual about rape shield laws is that the legislature has found that certain kinds of evidence are either always irrelevant or always inadmissible based on public policy considerations.


The Sixth Amendment provides the defendant a constitutional right to cross-examine his accuser and call witnesses on his own behalf.  To some degree, rape shield laws undermine the Sixth Amendment.  Almost all rape shield laws have some exceptions that bow to the Sixth Amendment.  These exceptions allow the judge to decide that in a particular case, the defendants’ need to have certain evidence introduced trumps the victims’ interests protected by the rape shield laws.


The Supreme Court has held that Sixth Amendment rights are not absolute.  It has never been thought that you can cross-examine your accuser without any bounds.  Not just any cross-examination is allowed.




  1. Failure-of-proof “defenses”
  2. Offense modifications
  3. Justifications
  4. Excuses
  5. Non-exculpatory public policy defenses


Be very sensitive to the difference between excuse and justification.


Take, for example, mistake of fact.  Which of the five categories above contains mistake of fact?  It’s a failure-of-proof defense.  Mistake of fact in a rape case negates an element of the alleged offense: the mens rea.


In the “kinky wife” case, Lord Hailsham says there is no room for mistake of fact as a “defense”.  He put defense in quotes because he thinks that failure-of-proof isn’t a defense in the ordinary sense.  It’s sort of more like a lack of offense.  The defense tries to break down an essential element of the crime, showing that it hasn’t been proven beyond a reasonable doubt.


The rest of the defenses that we’ll talk about in this chapter will fall into the categories of justification and excuse.


If conduct is justified, it doesn’t need to be excused.  A justification defense says that what the defendant did wasn’t wrong.  You don’t need an excuse for an act that’s not bad.  An excuse, on the other hand, focuses on the actor rather than the act.




When you’re justified, it means that what you did was at least not wrongful, if not actually good.  Four theories of justification: (1) Public benefit, (2) moral forfeiture, (3) moral rights, and (4) lesser harm.




Common law principles


Deadly force used in self-defense is justified at common law when:  The defendant is a non-aggressor and the defendant reasonably believes that deadly force is necessary to repel an imminent, unlawful, and deadly attack by the other person.  This set of elements also fit the structure of a justification defense, namely: (1) Proportionality – the force used is proportional and reasonable in relation to the harm threatened.  (2) Necessity – the force used is necessary to protect the interest at stake.  Deadly force generally means either force likely to cause death or serious bodily harm.  In order to justify the use of self-defense on the basis of deadly force, you must be trying to repel deadly force in response.  You can use deadly force to defend against potential crimes other than murder.


At common law, if you act in justifiable self-defense, you’re not guilty of any crime.  Even if you prove all the elements of the crime of murder, if you have a justification, then you’re not guilty.  Even if you have the intent to kill that usually constitutes malice, you may not be guilty of the offense.


The “aggressor” issue


You can’t use deadly force in self-defense if you’re the aggressor at the time of the conflict.  In order to find the aggressor, we are looking for an “affirmative unlawful act reasonably calculated to produce” a potentially fatal fight.  Self-defense cannot be claimed by someone who deliberately puts himself in danger.


“Reasonable belief” at common law


Say a defendant shoots someone believing they have a real gun when the gun is actually fake.  Under the reasonable belief requirement, even though the person couldn’t or wouldn’t have killed the defendant, the defendant still is acquitted even though what he did was objectively wrong.  However, if, on the other hand, the gun was obviously a toy then the defendant loses the self-defense claim because the belief about the threat wasn’t objectively reasonable.


People v. Goetz – The reasonable person standard for self-defense as justification is an objective standard.  Goetz felt that the prosecution gave an objective standard whereas the standard should have been subjective based on the statute.  The intermediate appellate court argued that the emphasis in the phrase “he reasonably believes” is on “he”.  That becomes a subjective standard because we’re not interested in what a reasonable person would do, but rather whether the defendant thought he was doing a reasonable thing.


The thing is that the defendant will obviously think that what he’s doing is reasonable.  But the defendant may be an unreasonable person.


The Court of Appeals of New York rules that the statute was meant to create an objective standard.  But how objective did the legislature intend it to be?  Who is that reasonable person?



How can it be justifiable to kill an objectively innocent person?  We might excuse someone for it, but maybe it wouldn’t be justified.  The common law says, on the other hand, that such an act would not be justified, but rather excused.  Dressler argues that this could create a situation where two people could justifiably kill each other.


State v. Wanrow – The jury may “stand in the shoes” of the defendant in assessing whether his or her conduct was justified.  The basic issue in this case is bringing gender into the discussion of the reasonable person.  What does this case stand for?  Does this mean that a woman who uses self-defense must be judged by the standard of a reasonable woman, or must she be judged by the objective standard of a reasonable person?  The ruling says that the defendant’s actions must be judged subjectively, not objectively.  After this case, case law has clarified this result to mean that they use a “reasonable woman” standard.  The Model Penal Code chooses “designedly ambiguous” language to describe the standard of behavior: “a reasonable person in the actor’s situation”.


State v. Norman – If North Carolina applies the common law, why isn’t Norman entitled to a self-defense claim?  It rests on the meaning of the word “imminent”.  At common law, this term means “just about right now”.  We’re talking seconds, not minutes or hours or days or weeks.  Since that’s not what we have in Norman, the Supreme Court of North Carolina represents the traditional view.  Under the ruling of this case and in most common law jurisdictions, Norman would not even be entitled to an instruction on the justification of self-defense.


Does syndrome evidence arguably turn a justification defense into an excuse?


“Self-protection” and the Model Penal Code


§ 3.04(2)(b)(i) deals with one limitation on the use of deadly force: the defendant mustn’t provoke the use of force with the purpose of causing death or serious bodily injury.  The Model Penal Code says that § 3.04(2)(b)(ii) says that you can’t use self-defense if you can retreat, except if you’re in your own home or you’re a public officer.  The Model Penal Code, as well as common law, treats human life very, very highly.  The sanctity of human life is valued so highly that the law doesn’t even want “bad guys” killed unless it’s absolutely necessary.  Thus, it’s very difficult under the Model Penal Code and at common law to win on a self-defense claim.


The Model Penal Code doesn’t focus on the amount of time before the actor will be killed, rather, it focuses on the actor to figure out if it is necessary now to use deadly force against the victim.


§ 3.04.  This statute uses the word “immediately necessary” rather than “imminent”.  The provision is general.  The deadly force provision is § 3.04(2)(b).  Even if you meet § 3.04(1), there are additional conditions in order for a valid justification to be constructed.


If an actor’s belief is sincere but reckless or negligent, the actor isn’t justified as far as reckless or negligent offenses.  If the defendant was negligent in believing that a toy gun was actually real, then under the Model Penal Code the defendant wouldn’t be guilty of murder.  The defendant would be guilty of negligent homicide if the defendant was negligent, and the defendant would be guilty of manslaughter if the defendant was reckless.


What the Model Penal Code does that is dramatically different from common law is that it doesn’t like the “all-or-nothing” proposition.  In the three situations above, the defendant is not guilty in the first case, not guilty in the second case, but fully guilty in the third case.  On the other hand, the Model Penal Code allows conviction for a lesser crime in the third case.




Three elements are required in order to show necessity: (1) The act charged must have been done to prevent a significant evil.  (2) There must have been no adequate alternative.  (3) The harm caused must not have been disproportionate to the harm avoided.


Nelson v. State There’s a balancing test here between the harm actually caused and the harm averted by the act.  That’s the very definition of necessity.


The drafters of the Model Penal Code § 3.02 thought the necessity defense was essential because we want to encourage sort of “efficient breach” of the law.  If obeying the law involves greater harm to society than breaking the law, we want people to break it.  This is kind of a belt to keep the legislature’s pants from falling down in exceptional situations.  If the legislature would have said “Yes, break the law in this case”, then we want to let the offender off the hook.  It would be irrational to want people to obey the law if we believed that the legislature in a certain situation would say “do break the law” because that would result in a better outcome for society than obeying the law.


Although necessity (or the “choice of evils” justification defense) is typically thought of as a utilitarian justification because of its balancing aspect, it can also be viewed in non-utilitarian terms by comparing the moral value of one choice of action against another.


A defendant must actually believe that his conduct is necessary to avert a greater evil (and not an equal or lesser evil).  The necessity defense doesn’t help you if you recklessly or negligently created the necessity.


The Queen v. Dudley and Stephens – This is the single most important case in Anglo-American jurisprudence to deal with the following question: is it ever justifiable to kill an innocent person in order to save a greater number of innocent persons?  The court suggests that sometimes the law has to set up standards that we can’t really live up to.  Can we punish someone when we all would have done the same thing?


If you’re a retributivist, then it is never right to kill an innocent person in order to save a greater number of innocent lives.  If you’re a Kantian, you believe that you must never use a person as a means to an end rather than as an end in itself.  That’s what Dudley and Stephens did with Parker: they used him as a means to an end, violating what Kant would say is a categorical imperative.




Excuse focuses on the actor, not the act.  Excuse concedes that the act was bad, but there was something about the actor such that we’re willing to let them go without punishment.  When we use an excuse defense, the burden of proof is placed on the defendant.


Bentham says that an excuse is a defense when their conduct was nondeterrable.  The only use for punishment, in a utilitarian view, is deterrence.  Therefore, if there is no value to punishment and only a net social cost, we shouldn’t punish.


However, say there are some people who are genuinely undeterrable.  There may still be some utilitarian value in punishing an undeterrable person due to specific deterrence or incapacitation.  What about the general deterrence value in punishing an undeterrable person?  If we excuse an undeterrable person, someone else might get the wrong message.  Someone else might believe that they can convince a jury that they are undeterrable.  Generally speaking, they may be less likely to obey the law because they will perceive it as full of holes.


Retributivists say that we have excuses because we don’t want to blame those who were not responsible for their actions.  To blame someone who is not responsible for his actions is a falsehood.  It is a matter of justice to excuse certain people even though they have caused some social harm.


Excuse law is now explained almost exclusively by some sort of retributive theory rather than utilitarian theory.  Even the utilitarian argument has a retributivist aspect to it.


Our theories of excuse are: (1) Utilitarian theories, (2) causation, (3) character, and (4) choice (personhood).




Duress is an excuse and not a justification.  Most jurisdictions treat it in this way.  At common law, duress is no excuse for murder.  In the Model Penal Code, however, there is no murder exception.


United States v. Contento-PachonThere are three elements of the duress defense, according to the court: (1) immediacy of the threat, (2) well-grounded fear of the threat, and (3) lack of escapability from the threat.


Another way of describing duress as an excuse is that a person will be acquitted of any crime other than murder if: (1) the coercer issues an unlawful threat to imminently kill or grievously injure the defendant or another person, and (2) the defendant was not at fault in exposing himself to the threat.


The court also says that a necessity defense suggests that there was no social harm on balance.   On the other hand, the court says that duress suggests there was no culpability.  The court therefore implies that necessity is a justification rather than an excuse.


The Model Penal Code definition of duress is revolutionary compared to the common law.  It’s different from the common law definition in many different ways.  There is a limit to duress under Model Penal Code § 3.02: the threat listed is “unlawful force”.  Only humans can do unlawful things.  The Model Penal Code is like the common law in the fact that it limits the defense of duress to human threats.  However, under the category of necessity, the Model Penal Code would allow either natural or human threats.  The Model Penal Code is well aware of this.  It says that even if § 3.02 applies, § 2.09 may still apply if you’re dealing with a human threat.


What’s different about the Model Penal Code provision on duress than the common law?  In the Model Penal Code, there need not be an imminent threat.  Also, under the Model Penal Code, a “kill or be killed” threat could work as an excuse: there is no murder exclusion.  Finally, it is a “person of reasonable firmness” standard.  It’s an objective rather than a subjective standard.


People v. Anderson At common law, duress was not a defense to murder.  Some intentional killings, if they are the result of provocation, reduce murder to manslaughter.  But this isn’t a heat of passion case.  Adequate provocation makes someone angry which makes them intentionally kill.  It’s a lot harder to control yourself when you’re very angry.  When we’ve very angry, our self-control is undermined.  But we don’t think one’s self-control is fully undermined by anger.  When you’re angry, you could do a lot of things other than kill.  You could vent your anger in some other way.


Why couldn’t you have fear in place of anger in “heat of passion”?  Fear is an emotion that is like anger in that it makes self-control more difficult.  We may be able to empathize more with fear than with anger.


Anderson’s point is that if you give a defense for killings caused by adequate provocation leading to anger leading to the intent to kill, then it follows that you should give a similar defense with fear in the place of anger.  Dressler seems to argue for just such a partial defense.


The Model Penal Code would actually agree with Anderson, although they wouldn’t use duress to get there and they wouldn’t use the “heat of passion” excuse.  You would go straight to manslaughter based on the fact that the homicide was committed under “extreme emotional distress”.  The Model Penal Code necessity defense allows the intentional killing of an innocent person to save a greater number of lives.  In a Model Penal Code jurisdiction, you could have a complete defense.




There must be some kind of mental illness in order for the insanity defense to kick in.  A person can be mentally ill without being insane.  But you can’t be insane without a mental illness.


The M’Naghten test: You’re insane if you didn’t know the nature and quality of your actions, or if you didn’t know right from wrong when you did what you did.  The traditional hypo for the first prong of M’Naghten is that you’re insane if you think you’re squeezing an orange when you’re really squeezing someone’s neck. To the extent that a M’Naghten jurisdiction uses the moral right from wrong test, the defendant’s belief about whether he did right or wrong is not the standard.  The question for the psychiatrists and the jury is: Did Bundy know that society thought what he did was morally wrong?  If the answer is yes, then Bundy is not insane under that prong of the test.


M’Naghten + “irresistible impulse” or control test


Model Penal Code test: You are not responsible for your conduct if your mental disease causes you to lack the substantial capacity (1) to appreciate the criminality or wrongfulness of your conduct, or (2) to conform your conduct to the dictates of the law.  § 4.01.


Durham (product test) – A person shall be excused if their unlawful act was the product of a mental disease.  In other words, they’ll be let off if they wouldn’t have done the act but for their mental disease.


There are two models of diminished capacity: (1) the mens rea model and (2) the partial responsibility model.


Model Penal Code § 4.02 reminds us that medical or psychiatric evidence can be used not only to prove insanity, but to proof the lack of a certain mens rea necessary for to prove a crime.  On the other hand, when all of the elements of the crime have been proven, some courts will reduce the offense from murder to manslaughter on the grounds that a person should be found to be partially responsible for the homicide.  It’s a case of partial diminished capacity rather than total loss of capacity.  Courts recognize that there are some people who are not insane, but also are not fully responsible for their actions.


Very few states recognize diminished capacity.  The Model Penal Code, however, does recognize this concept.  Manslaughter, under the Model Penal Code, covers extreme mental disturbance, not just extreme emotional disturbance.  Any state that recognizes “EMED” implicitly recognizes the diminished capacity doctrine.  But most states have abolished the “partial responsibility” version of the diminished capacity doctrine.


“Rotten Social Background” (RSB) Defense


Some think that these three things must be true in order to convict: (1) The defendant committed an act that is condemnable.  (2) The defendant can be condemned personally insofar as the defendant could have behaved in conformity to law.  (3) Society stands in relation to the defendant such that it is entitled to condemn him.


Some say that people with a bad upbringing may be undeserving of condemnation because they don’t satisfy either #2 or #3 above.  This is also known as the “social environmental” defense.


What about RSB as a partial excuse?  If you steal something though you can afford to buy it, maybe the social harm is greater than if you couldn’t afford to buy it.


How would we explain this excuse in terms of the excuse theories we have previously discussed?  Delgado would say RSB is a causation excuse.  Delgado would say that being poor caused people to commit a crime.  The causation theory is the broadest of all the excuse theories.  In fact, causation theory can excuse all criminal conduct.  Everything that you’re responsible for is caused by something else, so we would have results that don’t seem to conform to our notions of fairness.


On the other hand, Dressler would argue that the “free choice” theory of excuse is the narrowest of the three non-utilitarian theories.  “Did the person have both the capacity and fair opportunity (to apply the three prongs of the standard)?”  If not, then the person may be excused.  With causation, you keep looking backwards more and more.  The “free choice” theory narrows the focus to the particular moment when the offense was done.


What are the problems with the rotten social background defense?  It is suggested that the defense is “infinitely expandable”.  There’s one view of retributivism that says that people have a “right to be punished”.  If you take away that right, you “dehumanize” people.  If we allow an excuse for the defendant based on RSB, what will the effect be on society?  We must say that the dangerous person goes back on the street.  It also creates the incentive for other similarly situated to argue that they are similarly situated and make a claim for a rotten social background defense.  In the long run, if we’re utilitarian, we actually want to reduce the rotten social background that causes the crime rather than merely eliminate the crime.  Then you would get a utilitarian argument for the defense: if we excuse people with rotten social backgrounds, then we may give society an incentive to eliminate the conditions that lead to such backgrounds.


Cultural defenses


To what extent should a person’s culture, such that it’s different from American culture, be relevant in determining a person’s culpability for a crime?


State v. Kargar – If the admittedly criminal conduct was not envisioned by the legislature when it defined the crime, it might not be punishable under the de minimis statute.


Inchoate offenses


Consider the range of conduct: (1) Someone thinks about committing a crime (we don’t punish this).  (2) Someone solicits a crime.  (3) Someone conspires to commit a crime.  (4) Someone attempts a crime.  (5) Someone completes a crime.


Conspiracy and solicitation


At common law, conspiracy is agreement between two or more persons to commit an unlawful act.  It’s not an act!  Before you’ve done anything towards committing the actual crime, you could be found guilty of conspiracy.  It takes two to tango, and to conspire.


Solicitation is the act of asking someone else to commit a crime.  It’s a one-person crime!  It comes even earlier than conspiracy!  If the other person says no when you ask them to help you commit a crime, it’s solicitation.  If they say yes, it’s conspiracy!  The line between thought, solicitation, and conspiracy can be very thin.  Attempt, on the other hand, will take somewhat more time to materialize.  Also, note that at common law, asking someone to help you commit a crime is not solicitation.  Only asking someone to do it himself is solicitation!


Double and triple inchoate offenses bring us closer and closer to punishing thought.  You can ask someone to help you kill someone, and if they never get the message, that’s a case of failed (attempted) solicitation.




This is a tool that law enforcement can use to prevent crime.  We don’t want people murdered, robbed, or raped.  So if we have someone stalking an individual or pointing a gun at someone, we want to give law enforcement a way to stop potential criminals in the act.


In a complete attempt, the offender does everything necessary to complete the crime but they fail (e.g. you shoot someone but they don’t die).  In an incomplete attempt, the offender gets stopped short from completing the attempt.


However, preventive law enforcement can’t explain why we have inchoate offenses for complete attempt.  We might say that they are as culpable as the actual offender, but they just got lucky (or unlucky).  Also, the person who failed this time might succeed next time.  That person might be dangerous.  Finally, complete attempts may be subject to general deterrence.  Dressler says general deterrence is not an argument for inchoate offenses.


McQuirter v. State – McQuirter was arrested for “attempt to commit an assault with intent to rape”.  Assault, at common law, was an attempted battery.  So, we can parse this crime as “attempt to attempt a battery with intent to rape”.  This is a triple inchoate crime!


What about the social harm?  If there was less harm, shouldn’t there be less of a penalty?  That’s almost exclusively a utilitarian argument.  Utilitarians are concerned with what will happen in the future.  Retributivists are concerned with having you “pay your debt to society”.  But there are two kinds of retributivists: “harm” retributivists and “culpability” retributivists.  “Culpability” retributivists would say that we should punish attempt and completed offense equally.


To a retributivist, inchoate laws themselves create a problem: where’s the harm?  If I try to kill Mr. X but I fail, where’s the harm?  If there’s no harm, maybe there should be no punishment.


Recall one definition of social harm: “[N]egation, endangering, or destruction of an individual, group, or state interest, which [is] deemed socially valuable.”


There’s also a utilitarian argument for punishing attempt less than a completed offense: marginal deterrence.  If you’re starting to attempt a crime, but you still have an incentive to stop early, you may still be deterred.


Objectivism versus subjectivism


An objectivist doesn’t look inside the head of the offender and doesn’t punish unless and until you can find objectively that there’s harm.  A subjectivist is focused on what the person has in mind, expressed through their statements or their conduct.  An objectivist who focuses on harm will likely say “less punishment for less harm”.  A subjectivist will say “equal punishment for equal culpability”.


Model Penal Code is subjectivist and generally treats attempted crimes as severely as completed crimes.  The exception is murder or first-degree felonies.  For the most serious crimes, they give a benefit to the attempter by reducing the grade of the crime.


At common law, the mens rea of attempt is the intent to do the act that constitutes the attempt and the intent that the underlying offense be committed.  So if you fire a gun at someone intending to scare them but not to kill them and you miss, you will not be guilty of attempted murder or attempted manslaughter.


Attempt is a specific intent crime.  It requires the specific intent to have some future act happen.  Attempt always requires intent.  Even if the underlying crime doesn’t require intent (like extreme reckless murder), the attempt does require intent.


People v. Gentry – This looks a lot like a battered wife case.  It seems highly unlikely that the events unfolded the way they did.  The wife probably perjured herself at trial.


If you’re dealing with a completed attempt, use § 5.01(1)(a) or (b).  If you’re dealing with an incomplete attempt, use § 5.01(1)(c) and § 5.01(2).  If you’re dealing with a conduct offense, use § 5.01(1)(a).  If you’re dealing with a result crime, use § 5.01(1)(b).


Many jurisdictions say that when you use the common law definition of attempt, what we really mean is purpose, not knowledge.  Some jurisdictions say that intent means purpose or knowledge.  They say he basically acted purposely.  We have a split.  The Model Penal Code gives us an answer by having the word “belief” in there.


Actus reus of attempt


How far do you have to do from thought to completion in order to have an attempt?  In general, there’s an attempt when someone takes a substantial step towards the commission of an offense with the intent to commit that offense.  At common law, this was a misdemeanor, no matter what the “target” offense was.  Today, attempt to commit a felony is a felony.


Tests for attempt


Last act test – A criminal attempt only occurs when the actor has performed all the acts they believe are necessary to commit the target offense.  Physical proximity test – To be guilty of attempt, the actor’s conduct must be so near to the completed offense that it would result in that offense actually happening if the actor wasn’t hindered by outside circumstances.  Dangerous proximity test – This is Holmes’s test: there’s no attempt unless the “danger of success” is very great.  Indispensable element test – There is no attempt if the actor has not obtained some indispensable feature of the criminal plan.  Probable desistence test – The actor has committed an attempt if they reached a point where it’s unlikely that they would have “voluntarily desisted from his effort to commit the crime”.  Unequivocality (res ipsa loquitur) test – An act isn’t an attempt until it ceases to be equivocal.  This is an objectivist test.


With only a few exceptions, most jurisdictions that follow the common law don’t follow one particular test.  Usually, a jurisdiction will use multiple versions of these tests.  For the purposes of the exam and for purposes of being a lawyer in a non-Model Penal Code jurisdiction, you must be familiar with all the tests.  The Model Penal Code has its own test, so you would use that test in a Model Penal Code jurisdiction.


There are a few states that really actually apply a particular common law test, like New York.  In most states, all of these tests and more are out there and may be considered.


In a Model Penal Code jurisdiction, there is a defense of “renunciation”.  You must freely and completely give up your plan.  If you’re an objectivist, what is your position?  Should we recognize a defense of genuine abandonment of the criminal plan?  The objectivist would reject the defense, while a subjectivist would accept the defense.  If you have truly renounced your dangerous intentions, you are no longer dangerous or culpable.


The common law tends to be objectivist, while the Model Penal Code tends to be subjectivist.


We don’t want to find attempt too close to the mere “thinking” stage because that would be unjust, but we don’t want to find attempt to close to the “completion” stage because we want a shot at preventing the criminal conduct.


State v. Reeves – Look at § 5.01(1)(c) because this was an incomplete attempt.  You will be guilty if you do a “substantial step” towards the commission of the crime.  In § 5.01(2), there are a bunch of things that are examples of things that may be sufficient to corroborate the actor’s criminal purpose.  We don’t want to punish innocent people.  The poison in the purse is presumably strongly corroborative.


But if any of the categories § 5.01(2)(a) through (g) are present, it just means that it’s not legally permissible for a judge to hold that it’s not legally sufficient.  To put it another way, if any of these factors are present, the case should go to a jury and it would be wrong to direct a verdict of acquittal for a defendant if they meet one of those categories and it’s strongly corroborative of criminal conduct.  The categories (a) through (g) are only for the judge.  They are not read to the jury.  The jury only hears the “substantial step” language.


The Model Penal Code is strongly distinguished from the common law in that most of the common law tests look back to see how close the defendant has come to completion.  The Model Penal Code test asks how far the defendant has gone from the thought process.  If the defendant has taken a substantial step towards committing the crime, even if there is a lot more to be done, you can convict.  Therefore, it’s much easier to convict under the Model Penal Code than at common law.


Defenses to attempt


People v. Thousand – The defendant is charged with attempting to send pornography to an underage female when in fact he sent pornography to an overage male.  The charge is attempted distribution of obscene material to a minor.  From the defendant’s perspective, the individual was not really a minor, so it’s impossible for the defendant to have committed the crime.  Thousand claims legal impossibility.  The court punts on this distinction because they claim that neither impossibility defense exists anymore in Michigan due to statute.


Factual impossibility versus legal impossibility


In traditional common law, here is a good definition of legal versus factual impossibility:  Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective.  At common law, factual impossibility is no defense, while legal impossibility is a defense.


Pure legal impossibility means “pure mistake of law”.  Everything is exactly factually the way you think it is, but you just don’t understand the law.  Just as ignorance of the law is no excuse, ignorance of the law doesn’t make a crime.  The pure version of legal impossibility remains a defense in the Model Penal Code, but even if it weren’t, the legality principle would require us to reach the same result.


However, most of the cases of so-called legal impossibility involve this kind of “hybrid” situation.  Because they are hybrid and because you can make a plausible legal argument to suggest that it’s factual impossibility, which is not a defense at common law, and you can also make an argument that it’s legal impossibility, which is a defense at common law, there must be a problem with the law.


Jaffe – The Jaffe court said that Jaffe’s act wouldn’t have been a crime if it had been completed.  That is, we wouldn’t otherwise punish someone for receiving non-stolen property.  The Jaffe explanation is a traditional way to explain legal impossibility.


Utilitarians would say we should abolish this defense because we want to take dangerous, morally culpable people off the streets.  On the other hand, an objectivist might say that you’re punishing thoughts.  The Model Penal Code clearly does away with one aspect of the impossibility defense.  But even in some non-Model Penal Code states, their law may be interpreted to eliminate this defense.




There are two kinds of complicity: (1) Accomplice liability, and (2) conspiratorial liability.


Accomplice liability and conspiratorial liability overlap 99%.  Most of the time, if you could be held liable under accomplice liability, then you could also be held liable under conspiratorial liability and vice versa.  But not always.  There are a few cases where someone is one but not the other.


The common law terms were make-or-break distinctions for prosecutors at common law.  Virtually no state today follows the odd, technical common law rules that existed way back when.  But even though that’s true and some of the distinctions between the terms have disappeared, you will find that courts even today will talk about defendants using those terms.  To understand what they’re talking about, you need to refer to the original common law definitions.


For a very long time, an accessory after the fact is no longer part of this analysis.  That sort of person who is described as an accessory after the fact today is not deemed to be guilty of the crime for which they were accessory after the fact.  We’ll hold them guilty of “obstruction of justice” or “misprision of a felony”.


State v. Hoselton – The only evidence that showed that the defendant was an accomplice was his statement during questioning that “you could say that” he was a “lookout”.  Is there enough evidence to convict the defendant of entering with intent to commit larceny?  If the State can show that the defendant was a lookout, the defendant may be convicted as a principal in the second degree (someone who helped out at the actual time of the crime).


You’ll be liable as an accomplice if: (1) The person gave helped out in the crime, or (2) the person had the intent to promote or facilitate the commission of the crime.  So the actus reus is: you’ve acted, you’ve encouraged, or you’ve made an omission when you should have done something.  The mens rea is: intent to aid and intent that your assistance result in the commission of the offense.  Whenever you think about accomplice liability, think about actus reus first: how did the defendant aid?  Then go to the mens rea.  Did the defendant intend to do that act?  Did the defendant also intend that the act result in the commission of an offense?


You can be found guilty if you did it, or if you’re legally accountable for the person who did do it.  But when are you legally accountable?  There are three circumstances, but we only need to worry about two of them.  MPC § 2.06(2)(c) involves accomplice liability.


What makes someone an accomplice?  You need the mens rea of purpose, and the actus reus of solicitation, aiding, or failing to carry out a legal duty.  It’s kind of like the common law so far.


If you’ve given your friends a psychological boost by promising to help them…that’s encouragement.  If the assistance isn’t prearranged, they don’t get the benefit of the encouragement.  If there’s no prearrangement, and thus no encouragement, and the attempt to aid fails, then at common law, the defendant isn’t an accomplice.  Under the Model Penal Code, the attempt makes him guilty as an accomplice.  Mere prearrangement can give you both the mens rea and the actus reus at common law.  The agreement to aid is a mens rea of accomplice liability in the Model Penal Code.


Mens rea of accomplice liability


People v. Lauria – To establish the mens rea necessary to convict a supplier of conspiracy, you need either direct evidence that he plans to participate in the criminal activity of another or you need to be able to draw an inference that he has a special interest in the activity or show that the crime is of an aggravated nature.


This case teaches us two important things: (1) Sometimes you can infer purpose from knowledge.  For example, they might have a stake in the venture.  If the Sacramento Bee charges prostitutes more to advertise than others, then you can infer that the Bee wants them to succeed in prostitution.  (2) This is dicta: but the possibility is suggested that for really serious crimes, maybe we should be able to punish people simply on the basis of knowledge and not purpose.  Sometimes you can infer purpose from knowledge, but you usually need something extra in order to draw the inference.


The common law is deeply divided.  Many jurisdictions say only purpose will do.  Some jurisdictions are willing to punish on the basis of mere knowledge, at least for serious crimes.  The Model Penal Code requires purpose.


State v. Foster – Accessorial liability for criminally negligent homicide requires the same level of culpability as the underlying offense, that is, negligence.  Even though you can’t attempt or conspire to commit an offense that doesn’t require intent, you can be an accessory to such an offense.


In this case, we still need to prove the first intent, but what is really required for the crime is simply that the person have the mens rea required for the commission of the offense.  If the crime has a mens rea of intent, then the “second intent” would be intent.  But if the crime is a crime of recklessness, the mens rea required would be recklessness.  The “second intent” is a misnomer, except for crimes of intent.


What’s the policy argument for stating accomplice liability in this way?  The court asks why we would require a higher mens rea for the accomplice than we do for the principal.  If we’re willing to convict Cannon on the basis of criminal negligence, why should we require a higher mens rea for Foster?  This seems like a sensible policy argument.  If the legislature has decided that people should be punished for criminally negligently killing people, then people who help them should be judged and punished just the same.


What makes a risk unjustifiable?  It’s product of the gravity and the risk of the harm.  This is the Learned Hand formula, more or less.  What goes on the other side of the balance?  It’s her purpose in encouraging the cab driver to speed.


§ 2.06(4) deals with result crimes: (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.


If we want to find out whether someone is an accomplice in the commission of an offense, we go back to § 2.06(3).  So an accomplice in the conduct becomes an accomplice in the offensive if they act with the kind of culpability with respect to that result that is sufficient for that offense.  If the defendant doesn’t have that kind of culpability, they should be acquitted of that offense.


Look at § 2.06 as a three-step question: (1) What conduct caused the result?  (2) Was the defendant an accomplice in the conduct that caused the result?  (3) If yes, did the defendant have the level of culpability regarding the result, as stated in the definition of the offense?


If you don’t solicit the thing that caused the result, you can argue that you weren’t an accomplice.


Foreseeable consequences doctrine


State v. Linscott – To convict under the “foreseeable consequence” rule, you must find: (a) The primary person did the primary crime.  (b) The secondary person helped the primary person commit that crime.  (c) The primary person committed another crime.  (d) That other crime was a “foreseeable consequence” of the primary crime.

What is Linscott’s constitutional argument?  He says that if you convict him with intentional murder without showing that he possessed the mens rea of intent, you’re convicting him without proving each element of the crime beyond a reasonable doubt.


The difference between intent murder and negligent homicide is the defendant’s culpability, and it results in a big difference in the potential penalty.  Why don’t we follow this principle in this case?


It appears that Linscott was only negligent as to the victim’s death.  If the perpetrator of a negligent homicide would get, say, 5 years in prison, why should an accomplice to murder get life in prison?  In the last case, the court said that commensurability is the key.  Why should we be willing to punish an accomplice based on a lesser mens rea than that of the primary offender?


“Natural and probable consequences” doctrine


A majority of jurisdictions follow the “natural and probable consequences” doctrine.  This basically means the same thing as “foreseeable consequences” which more or less means the same thing as negligence.


Note that the Model Penal Code rejects the “natural and probable consequences” doctrine.


To understand how this doctrine works, you first ask the question, basically: was the defendant an accomplice of this other person as to Crime #1?  In this case, Linscott was, unarguably, an accomplice in the robbery.  He meets all the normal criteria of being an accomplice to the robbery.  He assisted the robbery, he had the proper intent; he should be convicted of robbery.  Once you do that, if Crime #2 was also committed, a person who was an accomplice in Crime #1 will also be deemed an accomplice of Crime #2 if Crime #2 was a natural and probable consequence of Crime #1.




State v. Vaillancourt – What’s the argument by the prosecutor for indicting the defendant?  What exists in the case that justifies treating him as an accomplice?  Vaillancourt was talking to the primary offender.  Also, the defendant came to the house with the primary defendant.  That suggests that they didn’t just happen to be there at the same time, but actually came there together.  That makes a somewhat stronger argument that they are more than just physically proximate to each other.


Mere physical presence at the scene of the crime cannot, by that mere fact alone, make someone an accomplice.  You have to assist, and you have to have a mens rea.  However, presence can frequently get us closer to the point where we can say that someone has assisted.  So what’s the extra something you have to have in order to be an accomplice?


Wilcox v. Jeffery – Regarding the rapes…what is the liability, if any, of the cheering customers, non-cheering customers, and the bartender?  Does the bartender have a legal duty to act to prevent the rape?  The bartender would seem to be responsible to protect his customers.  Since this is a business and the victim was a customer, he owes a legal duty to her.


Can we get the non-cheering customers for rape?  Based on what we’ve learned, they don’t have a duty to prevent the crime.  If they have a duty to stop a crime, all of us have a duty to stop any crime that occurs in our presence.  That may be a moral duty, but it’s not a legal duty under the criminal law.  Think of Jeffrey Strohmeyer.  He didn’t have a legal duty to stop his friend from raping a girl.


What about the cheering customers?  Could you get them for encouragement?  What if the rapists were deaf?  Would that make a difference?  Does this make any sense?


How do we explain Wilcox?  How can Wilcox be deemed an accomplice while none of the other thousands of people at the auditorium are found to be accomplices?  If Wilcox had booed, apparently he would have been off the hook.


There’s another problem here.  Let’s assume that Wilcox is the only person who encouraged Hawkins and specifically encouraged him to break the law.  But hadn’t the crime already happened?  The crime started when Hawkins entered the country without the appropriate documentation.  Wilcox didn’t assist in getting him into the country illegally.  But by the time of the concert, it would seem that the crime has already occurred.  Dressler assumes that this isn’t being discussed because this crime is viewed as a continuing crime.  That is, every second Hawkins is in the country illegally, a crime continues and therefore anyone who helps at any time is an accomplice.


State v. Helmenstein – You can’t convict in North Dakota on the testimony of an accomplice unless that testimony is corroborated by a non-accomplice.  The accomplice has an ulterior reason to testify against his fellow accomplices.  In multi-party crimes, the prosecution will go after the little guy and try to get them to cheese them out.  Then the accomplice has the incentive to say, “Just tell me what to say, and I’ll say it.”  Accomplices have their own reasons to lie or make it look like the other guy did more than him.  Many jurisdictions say there must be something to confirm the testimony of an accomplice.


Prosecutors love accomplice liability.


People v. Genoa – What was Genoa prosecuted for, and why did the court throw out the conviction?  A Michigan police officer tried to get Genoa involved in a purported scheme to buy cocaine.  The cop says: “Give me $10,000, I’ll buy and sell the cocaine and give you a profit.”  Genoa got the money and gave it to the cop.  He gets arrested and charged with “attempted possession with intent to deliver cocaine”.  But Genoa never wanted to possess cocaine.  What’s up?  The prosecutor’s theory is that Genoa was an accomplice to the crime of possession with intent to deliver, or more properly, he was an accomplice to the crime of attempted possession with intent to deliver.


Let’s avoid the impossibility doctrine!  Why does Genoa get off the hook?  The crime never really took place, and at common law you need to derive your liability from some underlying crime; that’s what accomplice liability is all about.  Since the cop committed no crime, there is no crime to be an accomplice to.  If the social harm of the crime or of the attempt hasn’t happened, there’s nothing to get the accomplice for.  There must be something over there we can connect our accomplice to.


What would be the result in Genoa under the Model Penal Code?  I think Genoa would be guilty.  § 5.01(3) shows this clearly:  (3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.


Has the Model Penal Code rejected the derivative liability concept?  How can Genoa be guilty of a crime that was never occurred or attempted?  How can we explain the result without getting rid of derivative liability?  In common law terminology, Genoa is an accessory before the fact, which would suggest we’re getting rid of derivative liability.


But maybe Genoa is the principle in the first degree.  He’s guilty of the crime of attempting to aid in the possession with intent to deliver cocaine.  The Model Penal Code says that Genoa would be guilty as the perpetrator.  From the Model Penal Code’s subjectivist point of view, Genoa is just as culpable and dangerous as someone who completed a crime.  From the objectivist way of looking at it, there is no social harm and Genoa should be let off.


Under the Model Penal Code, we ask: would this person have been an accomplice under § 2.06 had a crime been committed?  If the answer is yes, then you can be guilty not as an accomplice but as the perpetrator of the attempt.  Genoa becomes the principal in the first degree of the attempt.


Can we do § 5.01(3) with solicitation and not just aid?  In § 2.06, solicitation is in a different subcategory from aiding.  § 5.01(3) seems to deal only with aid and not solicitation.  Is this a glitch?  Is this inconsistent?  Well, you could still be guilty of solicitation to commit a crime, which is usually as serious as the completed crime anyway.  So, no problem really.  Doesn’t really matter.


“Innocent instrumentality” doctrine


Bailey v. Commonwealth – Must Bailey have shared a goal with the police officers in order to be a principal in the first degree?  “[O]ne who effects a criminal act through an innocent or unwitting agent is a principal in the first degree.”  Bailey is not a principal in the second degree because he wasn’t at the scene of the crime.  He wasn’t an accessory before the fact because he didn’t do any preplanning with the officers.  Bailey is a principal in the first degree by the “innocent instrumentality” doctrine.


How would this case be decided under the Model Penal Code?  § 2.06(2)(a) gets us there.  There are two ways we’ve looked at where you can be held responsible for the conduct of another: you can be an accomplice, or you can cause an innocent person to carry out your evil deeds for you.  Innocent means someone who would lack the mens rea for the crime or would be excused from the crime.  Irresponsible more or less means insane.  § 2.06(1) says that you can be held responsible for a crime based on your own conduct.


State v. Hayes – Why is it that Hill is not guilty of the burglary and larceny charges for which the government has charged Hayes?  Hill has no mens rea.  He had no intent to commit either crime.  He was just trying to trap Hayes.  Hayes gets off because there’s no liability to derive from, since Hill didn’t commit a crime.  We can’t get Hayes on the innocent instrumentality doctrine, because Hill manipulated Hayes rather than vice versa.


What could we get Hayes for under the Model Penal Code given these events?  We could get him for solicitation.  But there’s also something that we can get him for.  We could convict him of attempted burglary…really, attempting to aid and abet a burglary.


We can also get him for larceny at common law or under the Model Penal Code.  These days, with penal codes that get thicker and thicker and thicker, there’s usually a way to convict a person of a crime if you are creative enough.


United States v. Lopez – “Intolerable prison condition” claims: a person escapes prison and tries to avoid conviction for the break based on the conditions in the prison.  It makes sense if the prison is on fire to try to escape because it’s necessity.  Duress is an excuse, necessity is a justification.  This has some relevance to Lopez.  Necessity is balancing evils from a societal perspective.  But we’re not interested in her, we’re interested in McIntosh.  It definitely matters to him whether Lopez’s defense is characterized by justification or excuse.  Justifications are “universal” and excuses are “personal”.  If we believe that Lopez’s leaving the prison was justified, then McIntosh becomes the accomplice in a justified act, that is, something we think is good not bad.


If what Lopez did was excusable, then we won’t excuse him because his life wasn’t at risk.  We will say that something bad has happened that someone must pay for.  Or suppose Lopez escapes but is not liable because she’s insane.  McIntosh shouldn’t be able to benefit from her insanity.


In the Lopez case, McIntosh would be convicted as an accomplice of a crime that occurred but is “invisible” to us because we’re letting her off on the grounds of duress.  She intended to escape.  We’re just letting her off because of her excuse.  McIntosh is not using Lopez as an instrumentality.


Exam advice


Always write out the name of the case at the top of the exam.  Talk about different victims separately and identify them.


State v. Frank (Death of Marie)


Murder is defined at common law as “the unlawful killing of a human being by another human being with malice aforethought”.


  1. Voluntary act – At common law, all crimes require proof that the conduct included a voluntary act.  A voluntary act is defined as “a willed muscular contraction”.  The text states that Frank started to act “just as a man who falls into the fire begins to act” and “the gun sprang to his shoulder”.  Frank may argue that this tends to show that he did not act voluntarily.
  2. Social Harm – The social harm is the killing of another person.
  3. Mens rea – Malice is defined as…The four types of malice are…It could be argued that at the time of the killing Frank intended to kill because…On the other hand, other evidence tends to show that Frank has no such intent…It may be argued that the act of shooting a gun at people could fall into the “depraved heart” category of malice.
  4. Actual Causation – Frank is the “but for” cause of the death of Marie.
  5. Proximate Causation – There are no intervening causes between the firing of the gun and the death of Marie.


“Separate victims should be treated separately.  Different crimes should be treated differently.  You deal with each crime separately.”


Make sure to ask questions about the exam now.  Don’t wait until after so everyone can hear it and get the same answer.  You could also ask on TWEN Virtual Office Hours.


The theory is that the more you know about an exam, the better off you are.


What Dressler looks for on tests


  1. Depth and breadth of knowledge of the law – after the exam, we should say to ourselves that “this exam seems to be reasonably related to what we studied.”  Therefore, if you have knowledge across the whole field will do better than someone who has gaps.  Dressler tries to test the whole semester in some proportion to what we’ve been covering.  He also wants to test our depth of knowledge.  We should be able to do more than just recite back the rules of law.
  2. The ability to think and analyze like a lawyer – spotting the real issues and developing the arguments (pro and con) to deal with the issues.  You need to separate the wheat from the chaff in terms of relevant versus irrelevant issues.  Once you’ve spotted the issues, you need to make arguments regarding those issues.  It’s not just figuring out what your arguments are, but also what the other side would say in response to you and then how you would respond to that response.  Dressler tries to write his exams to be “real-worldish”.  Dressler wants to know that we know what real lawyers would really argue.
  3. Organization of thoughts – two students can have an equal amount of knowledge of law but one is more organized than the other.  Imagine you’re writing a brief for a judge.  You must put the pieces together for the judge in an organized way.  Usually, when you have a disorganized answer, your mind is also disorganized.
  4. English language skills – if you write well, it will make a difference in your grade.  Lawyers are all about language.


Never put an argument into the mouth of a lawyer that would be laughed out of court.  Sometimes there’s only one good argument on a particular issue.  Not everything is debatable.  Don’t make stupid arguments.  You don’t always do the pro and con when there’s no real con to the pro.


An essay exam only tests certain skills you’ll need as a lawyer.  Also, you can’t do it all.  Don’t try to get everything on the exam.  Part of it is strategizing: how do I best use the 3 hours I have?  That’s part of what lawyers do.


The expectations aren’t the same on an essay exam as they are if we were writing a brief that we had weeks to work on.


The exam instructions


The exam is entirely open book.  You just can’t use the computer as your outside material.  But study for the exam as if it were closed book.  Don’t bring in too much stuff; just bring in what you need.


Bring your own #2 pencil!


The exam itself


There are 30 multiple choice questions and you have an hour.  Some students finish these in less than 60 minutes.  Anything that was in our reading assignment, even if it wasn’t discussed in class, or anything that we discussed in class (including on TWEN) is fair game.


The multiple choice portion will be much more heavily common law than the essays.  It will also be general principles about legality, retribution, all that stuff.  If we’ve learned any constitutional law, that’s fair game.  We’ll also be tested on statutory work: reading, interpreting, and working with a statute.  There will be two types of questions: some questions will have a short set of facts and then four possible answers based on the facts.  You have a “little mini factual pattern” and then a couple of answer.  Some questions will be rule-oriented.  For example, “Which of the following statements about insanity is incorrect?”  Or, “Which of the following crimes is a general intent crime at common law?”  These kinds of questions you can usually do in 30 seconds…you either know the answer or you don’t.  You’ll spend longer on the “mini fact patterns”.


At least twice on the multiple choice, you’ll have “Facts for Questions X-Y”.  Sometimes, you’ll also have to apply a statue from the casebook.  But you won’t act like you’re in state X, you’ll act like you’re in an imaginary state that just happens to have the same statute as state X.  So in these questions, use the facts of the case and the statute.  It won’t be the same state each time.


Part Two is entirely a Model Penal Code question.  It’s a homicide question.  In Part A, there will be certain facts, but then in Part B, certain facts will be added.  This question will cover accomplice liability too.  It will apply basic § 2.06 complicity law.


There is a footnote that says you won’t get any points saying what the Model Penal Code says verbatim.  That doesn’t prove anything!  However, you need to cite to the Model Penal Code all the time.  Sometimes, you will want to quote from the Model Penal Code when it’s at the core of the discussion.  Cutting and pasting from the casebook doesn’t get you any points, though.  Using crucial language will get you points.


You don’t have to tell Dressler what you didn’t use; just tell him what you’re using.


Part Three is only 30 minutes.  You’ll get a rape/sexual assault statute.  You have to give your opinion on it in terms of policy.  This statute is one that has actually been out there in the real world.  This is our chance to demonstrate that we’ve thought about rape law and therefore, given the chance to see a statute that could become the law we can spot the strengths and weaknesses of it.  We won’t compare this statute to what the real statute is, but we pretty much know where the law is and where it’s going.


Dressler urges us to skip pages in Bluebooks, if we write.  If you don’t do that and you realize there’s something you should have said closer to the front, then you can use the blank pages.


Exam taking do’s and don’t’s


  1. Organizing your exam is very important.  It has a lot to do with your grade.
  2. Budget your time properly.  You have three hours.  You’ll never have time to say everything you want to say, so you have to live with that reality.  It’s a zero sum game.  It won’t do you good to use more time on one exam and get more points there as opposed to using less time on another bit and losing points there.
  3. Outline before you start writing your actual answer to an essay question.  Before you write word #1, prepare a little outline (really little) of what you think you’re going to be doing.  Dressler won’t see it.  It’s my own work product.
  4. Work with the facts, don’t just spout law—avoid the “Dressler CJS syndrome” – At UCLA, there were no midterms.  All of your exams were in June.  You went the whole year without any sense of how you were doing.  One of the professors gave a practice exam in Civil Procedure.  He got a “D”, and the professor wrote the comment: “If I wanted Corpus Juris Secundum I would have said so.”  Don’t just write stuff that you could have written even if you hadn’t seen the exam.  Use the facts!
  5. Don’t create issues where there aren’t issues!  Sometimes there really aren’t two sides to an argument.  Sometimes you’re wasting time by saying “on the other hand” when there is no “other hand”.  For example, in criminal law, 97% of the time there isn’t a voluntary act issue.  People don’t usually kill as the result of a reflex action or while sleepwalking or while hypnotized or any of that stuff.  So don’t create problems that aren’t really there.  For example: “Voluntary act: At common law, a person is not convicted of a crime unless his conduct includes a voluntary act.  At common law, a voluntary act is defined as a ‘willed muscular contraction’.  In this case, A pulled the trigger of the gun and there is no evidence that this is anything other than a willed muscular contraction.”  Don’t write this: “If the victim had been a fetus…”  Bad, bad, bad!  You get zero points for addressing something that isn’t an issue.
  6. Avoid conclusory answers: always ask yourself “why?”  Never say “it is clear that…”  Even if something is clear, make it clear to Dressler!  Point to the facts that allow you to reach that conclusion!  It’s fair to say that on a law school exam question 90% of the exam has no right answer.  For most of the exam, there are debatable issues.  Your conclusion isn’t so important as how you got to it.  Show your work.  Sometimes the conclusion is: “This is a jury question.”  In some cases, there doesn’t have to be a conclusion.
  7. Follow the call of the question, but also discuss competing arguments.  On this exam, the call of the question says “Discuss A’s criminal liability for B’s death.”  Even if you’re on one side or the other, a lawyer inevitably not only puts forward their own view but also anticipates the arguments of the other side.


Outlining on the exam


What Dressler used to do is read through the question quickly, focus on the “call of the question”, then go back and read the facts over a second time with much more care knowing what he was looking for.  Be careful about the “call of the question”: sometimes it will be narrower than what the facts suggest.  If you write an answer based on what you think you were being asked, that’s painful, because you can’t score points answering a question your professor didn’t ask.  Then you start outlining.


Voluntary act                -----

Social harm                              -----

Mens rea                      -----                 ------

                                    -----                 ------

                                    -----                 ------

Actual cause                             -----

Proximate cause                       -----

Self-defense                 -----                 ------

                                    -----                 ------

                                    -----                 ------


The dashes stand for certain words.  If you’ve figured out the case correctly, you might think that mens rea and self-defense are the really big issues.  If you’re right about that, we can assume that Dressler has allocated more points to mens rea and self-defense than some of the other issues.  The jigsaw approach would say that you should tackle the meatiest issues first.  But that’s not the organized way to do it.  It would be perfect if the big issues happened to be the things right on top.  But by organizing in preparation, you say to yourself: “I’ve got to get to mens rea, but I also have to get to self-defense.”  It forces you to think about and strategize about what you’re going to do when.  Keep in mind that you can’t say everything you want to say.  People are able to distinguish themselves by what they do say.


What if you’re running out of time?  You might want to skip down to the heavier issues.  Or maybe you should go over the less weighty issues faster.


How much time should you spend outlining before you start writing?  Maybe it depends on how fast you type.  When Dressler was a student, there was enormous pressure to keep up with the Joneses.  A length answer may also be a disorganized answer.


Don’t talk about the exam after the exam!!!  Once you turn it in, forget about it!


Writing an essay question


When someone grades your answer, they’re not going to spend nearly as much time reading it as you do writing it.  But here’s a piece of advice: making it easier for the grader to keep his eyes on what you want him to see will help.  So, underline the key words that you want the grader to see.  It helps, psychologically to underline or bold key words.  Also, construct your essay answer a little bit like an outline.


For example:


State v. Jones ([crime][criminal homicide])


  1. Voluntary act
  2. Social harm
  3. Mens rea
  4. Actual causation
  5. Proximate causation


This not only makes it easier on the grader, but it makes it easier on you.  If you’re in the “voluntary act” section and you start talking about mens rea, it helps you get back in the swing of things.  This organizational structure helps the grader know where I am and helps me know where I am.


This is the organization that we should use.  The organization is self-evident.


Some of the above issues may be big, and others may be small.


Let’s go back to social harm for a minute.  In this context, Dressler is not asking us to give us the definition of social harm.  What he’s asking us to do is to talk about the actus reus elements of whatever crime we’re talking about; that’s the social harm of that particular crime.  For example, at common law, the social harm of burglary is “breaking and entering the dwelling house of another at night”.  In fact, you may break it into “breaking”, “entering”, dwelling house” and so on.  Use the definition of the crime that you’re working with.  This isn’t meant to be excessively philosophical.


We already know that this exam deals with criminal homicide under the Model Penal Code.  We already know the social harm of criminal homicide: it’s the killing of a human being by another human being.


After we’ve covered the basic five elements, you go to:


  1. Defenses
    1. Justification defenses
    2. Excuse defenses


Recall that you have nothing to excuse if your conduct was justifiable.


Unlike the elements of a crime, you should only bring up those defenses that would realistically be raised by the attorneys in that case in the real world.  You don’t need to take a laundry list of all the justification defenses and show why none of them apply.  Raise the defenses that you think a real lawyer would raise and discuss them.


What about murder versus manslaughter (versus negligent homicide)?  The question is a Model Penal Code jurisdiction question, where we’re supposed to discuss the criminal liability of A for killing B.  We know by now that the only thing that separates different homicides is mens rea.  The voluntary act will be the same no matter what the crime.  The social harm will be the dead person.  What matters will be in the mens rea discussion.  At that point, you can discuss any relevant mens rea issue.  You should always start at the top, that is, with the highest mens rea that can plausibly be argued by a prosecutor.  If the facts plausibly support the mens rea of purpose, then that’s where you start and you work your way down.  It may be obvious that the killing was done purposely.  If so, fine, and you don’t have to go down.  It may be that the killing is clearly an accident, and the only issue is whether the killing is reckless or negligent.  But start at the highest mens rea and work your way down.  Cite your Model Penal Code sections.


Failure-of-proof defenses versus justification and excuse: a failure-of-proof defense isn’t really a “defense”: for example, mistake of fact.  A mistake of fact defense isn’t really an affirmative defense.  It’s a denial that you had the required mens rea for the crime.  Mistake “defenses” shouldn’t be talked about as justifications or excuses.  It should be talked about under the element it supposedly negates.


Multi-party cases


We’ll have one in question II-B.


  1. Deal with the alleged perpetrator first, then the alleged accomplice.  This is because of the derivative liability issues.  Before you can discover the existence of an accomplice, you must find a primary crime from which to “derive” liability.
  2. In accomplice cases, you only need to deal with the actus reus and mens rea of being an accomplice.  Go over the evidence that would show that the defendant did, in fact, assist in the crime.  Then turn to the mens rea question and use § 2.06.  There is no causation requirement for accomplices.  Then there might be some defense related to the accomplice (insanity, for example).
  3. When you have an innocent instrumentality case, deal with the instrumentality first, that is, show they are innocent; then turn to the “principal in the first degree”.  The principal in the first degree must have caused an innocent third person to do the crime and must have had the required mens rea for the crime.


Multi-crime cases


We’ve only been asked about homicide.  But if the facts of the homicide question include a felony in which someone died, and it is suggested that the prosecutor will try to make that argument, then cover the felony first because it will resolve the felony-murder issue later.


Say, for example, that A raped B and then the victim died.  That would seem to create felony-murder.  Then, start out with:


State v. A (rape)

Then later…State v. A (criminal homicide)


Remember that the Model Penal Code doesn’t have the felony-murder rule as such.  If you look carefully at the definition of murder under the Model Penal Code, you’ll find that under the “extreme indifference” provision, that mens rea will be presumed if death occurs during the commission of certain enumerated felonies.  The Model Penal Code drafters hated the felony-murder.  They made a compromise.  Committing a certain felony creates a rebuttable presumption of extreme recklessness.  If you can prove otherwise, the felony drops out.


Criminal Law Exam Practice


People v. Eulo (criminal homicide)


  1. Voluntary act – Under the Model Penal Code § 2.01, a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act.  In this case, Eulo’s willed bodily movement in pulling the trigger of the gun with which he shot his victim constitutes the required voluntary act.
  2. Social harm – The social harm in this case is the death of the victim, but it is in dispute what constitutes death in this case.  The Model Penal Code is silent on the definition of “death”.  The defendant, citing common law precedent, claims that the social harm envisioned by the Model Penal Code is the cessation of circulatory and respiratory activity.  The People, on the other hand, argue that “brain death” is, or should be, the social harm.
  3. Mens rea – In order to be convicted of criminal homicide under the Model Penal Code § 210.1(1), the defendant must have caused the victim’s death purposely, knowingly, recklessly, or negligently.  There is no evidence in the record on this appeal of the state of mind of the defendant at the time of the killing.  However, because the defendant does not raise this issue on appeal and the record describes the defendant as having “shot his victim in the head”, it can be inferred that the mens rea of purpose was proven at trial such that it is not at issue now.  The Model Penal Code § 210.2(1)(a) would classify the defendant’s offense as murder, which is a felony of the first degree (§ 210.2(2)).
  4. Actual causation – Under the Model Penal Code § 2.03(1)(a), the defendant’s conduct is the cause of the resulting offense when “it is an antecedent but for which the result in question would not have occurred”.  To determine whether the defendant is an actual cause of the social harm in this case, we ask, more specifically: “But for the voluntary act of the defendant, would the social harm have occurred when it did?”  If the defendant had not shot the victim, the victim would not have become brain dead when he did, and, alternatively, would not have ceased respiration and circulation when he did.  Therefore, the defendant is an actual cause of the death of the victim.

    There are no additional causal requirements in the Code as contemplated in § 2.03(1)(b).
  5. Proximate causation – The Model Penal Code disposes of the proximate causation issue in short order.  Because purposely causing a certain result (the death of the victim) was an element of the defendant’s offense, and because the actual result involves, arguably, the same kind of injury or harm as that contemplated by the defendant, we consult § 2.03(2)(b).  This section tells us that because the actual result (death under the traditional definition) is not too remote or accidental from the contemplated result that the defendant alleges (brain death) to have an effect on the defendant’s liability.



Outline EP-8


Bob returned home one day and, to his shock, observed his wife in bed with Victor.  Enraged, Bob stalked out of the house, walked next door, and angrily asked Ann, his neighbor, for a gun that he knew that she lawfully kept for self-protection.  When she asked him why he needed it, he angrily stated, “I need a gun to kill someone.”  Ann gave him her gun, saying, “Go get him.”


Bob returned to his house and walked into the bedroom, gun pointed.  When he entered, Victor, by now out of the bed, had a large kitchen knife in his hand.  From a distance of 10 feet, Bob shot Victor four times, killing him instantly.  Because of his rage, Bob had not seen the knife in Victor’s hand when he shot him.


Discuss Bob’s and Ann’s criminal liability, if any, for the death of Victor.  Apply [the Model Penal Code.]


State v. Bob (Homicide)


  1. Voluntary act – The Model Penal Code requires Bob’s conduct to include a voluntary act in order for him to be liable for any offense, § 2.01(1).  Bob’s conduct included the voluntary act of shooting Victor.
  2. Social harm – The social harm is the killing of a human being (Victor) by another human being (Bob).
  3. Mens rea – Under the Model Penal Code, in order to be guilty of criminal homicide, a person must commit the actus reus of killing another human being purposely, knowingly, recklessly, or negligently, § 210.1.  There is evidence that Bob acted with purpose in killing Victor.  Bob told Ann that he was planning to kill someone.  [Bob also had the motive to kill Victor: he was angry at him for sleeping with his wife.]  This would make Bob guilty of murder, § 210.2(1)(a), unless a jury can be persuaded that Bob was acting under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, § 210.3(1)(b), in which case Bob’s crime would be manslaughter.

    Bob could argue that witnessing his wife in an apparent act of adultery enraged him so much that he experienced extreme emotional distress that continued through the time of the actual killing.  This would be a threshold question of law for the judge.  If the judge allowed this argument to go before a jury, Bob would further need to persuade the jury that the disturbance was reasonable.  In doing this, Bob needs to try to get the jury to sympathize with his position and imagine being in his shoes.

    The State would argue, however, that Bob had adequate time in the course of going to his neighbor’s house and back that he either no longer was under the influence of extreme distress or that such distress was no longer reasonable at the time of the killing.  It could be argued that, in essence, no one could stay that mad for that long (a question for the judge), or that, alternatively, no reasonable person could stay that mad for that long (a question for the jury).

    If the fact is conceded that Bob was so enraged that he did not see the knife in Victor’s hand, Bob could argue that this is evidence that his extreme emotional disturbance continued to the moment of the killing.  Bob could claim that no one could fail to perceive the danger of another person holding a knife unless they were experiencing extreme distress of the nature contemplated by the Model Penal Code.

    [The purpose of allowing the partial defense of extreme emotional or mental disturbance is to recognize that society sees an actor as less at fault if they are not in full control of their actions due to a disturbance with an understandable or reasonable cause.  In other words, a retributivist would find that Bob did not act fully by choice, and thus his culpability is limited by his ability to freely choose not to commit the offense.  From a utilitarian perspective, on the other hand, someone in a rage like Bob may not be deterred from committing murder, and therefore it serves no purpose to punish him for murder because, arguably, no net social gain will result.]
  4. Actual causation – Under the Model Penal Code, Bob’s conduct was an actual cause of the death of Victor when Victor’s death would not have occurred but for Bob’s voluntary act.  If Bob had not shot Victor, Victor would not have died.
  5. Proximate causation – There are no intervening causes between the firing of the gun and the death of Victor.
  6. Defenses – Bob’s killing of Victor was justified for self-protection if Bob believed that such force was immediately necessary to protect himself against the use of unlawful force by Victor, § 3.04(1).  Because Bob used deadly force, Bob is not justified unless he believed that deadly force was necessary to protect himself from being killed or seriously injured by Victor, § 3.04(2)(b).  Bob’s case for justification by self-protection is weak for several reasons: first, he did not see the knife in Victor’s hand, which makes the use of deadly force unjustifiable given the circumstances as Bob believed them to be.  Furthermore, because Victor was 10 feet away, Bob will have a hard time proving that he believed that force was immediately necessary.


State v. Bob (criminal conspiracy)


  1. Voluntary act – Bob’s conduct included the voluntary act of agreeing with Ann that Bob would carry out the offense of criminal homicide, §§ 2.01 and 5.03(1)(a).
  2. Social harm – The social harm is the killing of Victor.
  3. Mens rea – Bob acted with the mens rea of purpose in agreeing with Ann to facilitate the commission of criminal homicide.


State v. Ann (criminal homicide)


  1. Voluntary act – Ann’s conduct included the voluntary acts of giving her gun to Bob and telling him to “go get him”, § 2.01(1).  These acts constituted aid in the commission of Bob’s offense, § 2.06(3)(a)(ii).
  2. Social harm – The social harm in this case is the killing of Victor by Bob.
  3. Mens Rea – Ann may be liable as an accomplice to murder if (1) she had the purpose of promoting or facilitating the offense of murder, § 2.06(3)(a), and (2) she had the mens rea of purpose in regard to result of Bob’s conduct, namely, the killing of Victor, § 2.06(4).

    The State may argue that because Bob told Ann that he was planning to kill someone, Ann’s statement to Bob is evidence that she had both the purpose of facilitating Bob’s offense and the purpose that Bob kill another human being.


State v. Ann (criminal conspiracy)


  1. Voluntary act – Ann’s conduct included the voluntary act of agreeing with Bob that he would carry out the offense of criminal homicide, §§ 2.01 and § 5.03(1).
  2. Social harm – The social harm was the killing of Victor by Bob.
  3. Mens rea – Ann acted with the mens rea of purpose in agreeing to aid Bob in the commission of his offense, § 5.03(1)(b).