What is Criminal Law?

Hart gives five characteristics of criminal law:

  1. Given commands
  2. Commands bind subjects
  3. Subjects have consequences for disobedience
  4. Community condemnation
  5. Not a threat, but punishment enforced

For a statute to be considered a law, there must be 4 features

  1. A person must be aware of the existence of the law
  2. Must know the facts that make situation applicable to the law
  3. Person must babe able to comply with the law
  4. Person must be willing to comply with the law

Beyond a Reasonable Doubt

Most criminal law statutes are comprised of elements. The reason for having the beyond a reasonable doubt standard is moral. It is immoral to imprison an innocent person than to let a guilty person go free. So, you need to have a “near certainty” that the person is guilty of the crime being accused.

Owens v. State

Upon receiving a complaint of a suspicious car, police showed up and found Owens intoxicated and unconscious in a running vehicle with the lights on. He was arrested for drinking while driving. Owens disagreed stating that there wasn’t enough evidence to convict him of drinking and driving on a public highway.

Here, the analysis overwhelms a reasonable hypothesis for innocence, so the court finds Owens guilty.


Justification for Punishment

What is Punishment

Below are the characteristics of punishment

  1. Perform it on a person responsible
  2. Unpleasant
  3. Unpleasant consequence comes through condemnation
  4. Condemnation is imposed by authority
  5. Imposed because of a breach
  6. Imposed upon the breacher

Justification for Punishment


Looks toward the future. Society wants pleasure not pain. Utilitarian punishment is justified if the pleasure outweighs the pain of the punishment. There are four ways to find this justification.

  1. General Deterrence
  2. Specific Deterrence
  3. Incapacitation
  4. Reform


Looks toward the past. Retribution justification for punishment is that a person deserves to be punished out of a sense for duty for the person who the crime was committed against. Kant goes as far as to say that society owes it to punish.

Queen v. Dudley & Stephens

Murder trial. Lost at sea, kill companion to survive. Are they guilty? Should they be punished?


Yes, to cause general deterrence. (You do not want the rest of society to do what they did)


Yes, because they committed a crime. They should be punished according to the crime.


How do you know if a law is legal? Well, there are certain requirements that laws must meet to have legality, that is criminal enforcement.

  • Understandability
    • Fair Notice
  • Clarity
  • Lenity

Fair Notice and Due Process

Commonwealth v. Mochen – Common law

Although common law was once seen as a justifiable approach to giving fair notice, as used in Mochen, this is not a justifiable approach any more. Why? See below

Keeler v. Superior Court – Legislation and Fair Notice

Common law is not a source of criminal law. Instead, the legislative body is supposed to create statutes. The courts can interpret them, but not create them.

Additionally, a person cannot be convicted of a crime without fair notice. Meaning, if they did not know that it was a crime (because it wasn’t until recently), then they did not have fair notice. Therefore, they cannot be convicted of a crime that was committed before it was a crime (i.e. Ex Post Facto).

Clarity: Two Parts – Vagueness and Overly Broad

In Re Banks – Peeping Tom Vagueness

All statutes are going to be a little vague. However, they are not good statutes if they are too vague. So, what tools are there to remove vagueness? Here are a few:

  • Presume the statute is Constitutional
  • Plain meaning
  • Legislative intent
    • This is a case of legislative intent. So, we need to look at all the history, legislative history, common law, previous statutes, etc. when understanding if a statute is clear.
  • Avoid redundancy

Why do we avoid vagueness? To make sure that the people understand what is legal and what is not. If it is unclear, then people may be committing a crime without knowing that they are committing a crime.

Desertrain v. City of Los Angeles – Overly Broad Homeless City Ordinance

How do we know if a statute is too broad? A statute is too broad if innocent acts are able to be seen as a violation of a law (i.e. sitting in a car as being a violation of a homeless statute). Here the principle of lenity comes in. Lenity is, if there is ambiguity in the meaning or application of the statute, then the defendant receives the benefit of the doubt. “Tie goes to the defendant.”

Statutory Interpretation

Muscarello v. United States – Defining “Carry”

Plain Language

Avoiding Absurdly

Assume Constitutionality

Legislative Intent

  • Purpose of the Statute
  • What do previous statutes say
  • What is the common law history
  • What is the legislative history

Actus Reus

The physical part of a crime: “the act”. There are some differences of opinion, but the most common is the act plus the harmful result.


Martin v. State – Public Intoxication

You need to violate the law voluntarily.

State v. Utter – Automatism

Unconscious actions are not voluntary because they do not come from the defendants volition.

The following are not voluntary acts by the MPC:

  • Reflex or convulsion
  • Bodily movement during unconsciousness or sleep
  • hypnosis or resulting from hypnotic suggestion
  • automatic response whether habitual or conscious

This list is not exhaustive but varies from jurisdiction to jurisdiction. Additionally, unconscious acts by intoxication can be held liable.


People v. Beardsley – Legal duty vs. moral duty

You can only be held liable for criminal actions resulting from omission if there is a legal duty to act. Jones lists out several possible situations where there is a legal duty.

  1. Statute imposes a duty
  2. Certain relationship statuses
  3. Contractual duty
  4. Voluntarily assumed care and secluded the helpless person from receiving help from others.
  5. Creates a risk of harm to another

There is no criminal liability for failure to complete moral duty. This is because:

  1. Ambiguous
  2. Difficult line-drawing
  3. Create more harm from interfering
  4. Freedom. Criminal law should prohibit actions, not require actions.

Mens Rea

United States v. Cordoba-Kincapie – Old Definition of Mens Rea

“A guilty mind, a guilty or wrongful purpose, a criminal intent”

Regina v. Cunningham – Gas

This is a separation from the broad definition of mens rea to a more narrow definition of mens rea

Broad – includes any guilt not even related to the action

Narrow – is recklessness related to the action.


People v. Conley – Wine bottle smack at party

Specific intent

  1. Expressed in statute or rule
  2. Higher culpability standard (Intent or knowledge)
  3. Special intent (future intent attached)

General intent occurs if the specific intent is not found.


State v. Nations – Club

Traditional common law defines knowledge as “Actual awareness” of the the circumstances of the facts.

The MPC also defines knowledge as have a high probability of awareness of the circumstances of the facts. A high probability needs to be even higher than 2/3rds. (Willful blindness)

Federal also includes deliberate ignorance (United States v. Global Intent.

Mens Rea Cont.

Mental Culpability

Yesterday we focused on Common Law culpability. Today we talked about the MPC approach. Under the MPC, there are only four parts of mental culpability

  • Purposefully
    • “Conscious object”
  • Knowingly
    • “Consciously aware”
    • “Practically certain”
  • Recklessly
    • “Conscious of risk”
    • Unjustified action
  • Negligently
    • “Should have known”
    • Unjustified action

Each of these mental parts also needs to meet an element part:

  • Conduct
  • Circumstances
  • Result

Transferred Intent

MPC §2.03(2)

In common law, intent only transfers from person to person OR property to property. Under the MPC, intent can also transfer if the harm caused is less than the objective harm. The individual can then be charged with the lessor offense.

Strict Liability

Morissette v. United States – Bomb casing

Staples v. United States – AR-15

The MPC tried to get rid of strict liability. However, there are few cases where it is allowed.

  • Minor violations (fines)
    • Traffic offenses
  • Public welfare offenses
    • Minor food and liquor violations
    • Statutory rape
  • Specifically worded federal statutes
  • Statutes with more compelling purposes

Mistake of Fact

When somebody believes one thing about the action being done and is wrong (believes they are transporting medicine and later discovered that they were transporting illegal drugs).

People v. Navarro – Stealing beams of wood “thought they were abandoned”

Common Law Approach

A person can have a mistake of fact defense if:

  1. Under a general intent, a jury must see that the actions were reasonable and in good faith.
  2. Under a specific intent (purposeful or knowing), the jury doesn’t look at reasonableness (the action can be completely unreasonable) but instead just focuses on the genuine good faith of the actor. This is the same as the MPC approach below.

“Legal Wrong Doctrine” If a person is aware is aware of committing a crime of degree and actually commits another crime of higher degree, they will be held culpable for the higher offense.

MPC Approach

No such thing as a general or specific intent in MPC.

  1. Not guilty of a crime if there is a mistake of fact if there is no mens rea.
  2. (1) is true unless the person is aware of committing one crime and is charged for another. In the case that there is a degree of offense, the person is guilty for the lessor offense.

Mistake of Law

When somebody believes one thing about the content of the law but are mistaken in its meaning

People v. Marrero – Not aware he wasn’t exempt from gun law

Cheek v. United States – Tax evasion

Common Law Approach

Generally, there is no defense for the ignorance of the law. However, there are three exceptions.

  1. Reliance on an official statement of the law (you hear the rule from a person with authority, someone charges with the law’s interpretation or enforcement) and then later find out that it was wrong.
  2. Constitutional Notice (due process), where you are charged with a crime of omission (failure to act) based on the status of the individual. If this is the case, the prosecution must prove that there was proper notice.
  3. For a specific intent (purposefully or knowing) crime where the mistake of law negates the specific intent portion of the crime (knowing or purposeful), the a genuine mistake of law can be a difference.
MPC Approach

There can be a mistake of law defense if:

  1.  Purpose negates the mens rea (purposeful, knowing, reckless, negligence) required to establish a material element
  2. A belief that the conduct was not illegal can be a defense if
    1. There is not enough notice given to the actor
    2. Acting on reasonable reliance from an official statement of law which was later determined to be wrong.


To prove a crime, you need both actual and proximate cause.


Oxendine v. State – Beating the child

Common Law

“But-for” Meaning if the action didn’t happen, then the result wouldn’t have occurred.

If there is no “but-for” it needs to follow the substantial test. “Substantial” requires three things

  • Two independent people
  • Two independent acts
  • Alone those acts would result in the harm (efficient)

If the act causes an acceleration of the result, the actor can be held liable for cause.

MPC Approach

“But-for” Meaning if the action didn’t happen, then the result wouldn’t have occurred. (Same as common law).


People v. Rideout – Drunk Driver “apparent safety”

Velazquez v. State – “Drag racing”

Common Law

Proximate cause is who among the “but-for” standard should be held accountable. If a person is the original causer in fact, and the chain is not broken by events, they can be held liable for the result. If the chain is broken by another party, the original causer cannot be held liable.

Six factors

  1. De minimis contribution to the harm
  2. Intended-consequences doctrine (if the intention result occurred, even if it didn’t happen the way they expected)
  3. Omissions
  4. Foreseeability
  5. Apparent Safety
  6. Voluntary human intervention

“But-for” test unless it is too remote or accidental to be fair or just.

This really boils down to, “is it just?” If a reasonable jury can figure out whether or not it is just, then it should go to the jury.



The Protected Interest: “Human Being”

Common Law

People v. Eulo – Pulling the plug

Death is defined as brain-dead, a more medically modern approach. However, if there is gross negligence from the doctor, death can be defined as the time when the heart and lungs stop functioning.

Degrees of Murder: The Deliberation-Premeditation Formula

Common Law

State v. Guthrie – “Taking off the gloves”

This is how you define willful, deliberate, and premeditated according to the common law.

Requires elements of:

  1. Formation of Intent
  2. Fully conscious of result

before the result occurs.

In other words, the jury will need to determine if there was sufficient time in-between the formation of intent and the result to allow for the conscious intent to occur. This is not a fixed amount of time, but is up to the jury to determine how long it can take.

Under Common Law, Guilty of first degree murder. Under MPC, Guilty of murder.

Midgett v. State – Abusive father

Applying the Guthrie rule, there could have been intent, but there was not a fully conscious aware of his actions. Therefore, there was no deliberation or

Under Common Law, Not Guilty of first degree murder. Under MPC, Guilty of murder.

State v. Forrest – Putting father out of misery.

Even those who are not as morally blameworthy can be found more guilty under the Common Law approach for criminal homicide.


The MPC is more strict than the common law approach. Murder under the MPC is

  1. Purposeful or knowing
  2. or extreme recklessness of indifference towards an individual or while committing a felony.


Common Law Approach

Girouard v. State – Killing recent spouse

A voluntary manslaughter (under one definition of common law) is the killing of another human being resulting from serious provocation from the victim. So, how do we determine if there was manslaughter? There are four elements that must be met:

  1. Adequate provocation
  2. Killing done in the heat of passion
  3. Heat of passion was sudden
  4. Causal connection between the provocation, the passion, and the fatal act.

Addressing the first element, how do we determine what is adequate provocation? Consider the following situations courts have said is adequate.

  1. Discovery of spousal adultery (in the act)
  2. Mutual combat
  3. Assault upon the defendant
  4. Injury to a close relative
  5. Illegal arrest

Here Girouard was found guilty of murder (not manslaughter) because he was not adequately provoked. Words (insults) are not enough. There must be a substantive action along with those words.

MPC Approach

People v. Casassa – Killing girl who refused to date him

Under the MPC, a manslaughter is an act of killing that would have otherwise been a murder but there is (1) extreme emotional disturbance with a (2) reasonable excuse. In other words, one is guilty of murder, not manslaughter, if they meet the elements of murder and don’t have a manslaughter defense.

The extreme emotional disturbance element is entirely subjective. We look at the mind of the individual who did the action to see if they meet this requirement. If so, the case moves to the jury who examines the facts from the mind of the individual, but sees whether a reasonable person (with those facts) would have acted in a similar manner.

Here, Casassa was guilty of murder (not manslaughter) under the MPC because even though he was extremely emotionally disturbed, the jury did not find his actions reasonable considering the facts (killing somebody because they refused to date you). Note, he would have also been found guilty under common law because there was no adequate provocation.

Unintentional Homicide: Unjustified Risk-Taking

There can be intentional homicide (including murder) and unintentional homicide, including murder.

Under the MPC, there are 3 difference kinds of unintentional homicides:

  1. Murder (Reckless ++ – Extreme indifference to human life)
  2. Manslaughter (reckless – substantial & unjustifiable risk)
  3. Negligent Homicide (should be aware + gross deviation = Criminal negligence)

Under Pennsylvania Common Law there are three different kinds of unintentional homicides:

  1. Murder (third degree – All other kinds of murder (i.e. not premeditated, not during felony))
    • Conscious disregard = malice = murder of third degree
  2. Involuntary Manslaughter (Reckless or grossly negligent)
People v. Knoller – Dangerous dogs

Common Law: Phillips standard – conscious disregard.

Would be guilty of murder under common law because of conscious disregard of human life.

Would be guilty of either murder or manslaughter. Here we can show that there was an extreme indifference, then the jury will decide if it is extreme recklessness (murder) or just reckless (manslaughter).

State v. Williams – Toothache

Washington Common Law: Simple negligence, not grossly negligence. Regular common law requires grossly negligence.

Under Washington Common Law: Guilty of Involuntary manslaughter. Under regular common law: Not guilty of manslaughter.

MPC approach: Same as the involuntary manslaughter (requiring grossly negligence) but the term is Negligent homicide.

“Felony-Murder” Rule

Felony Murder Rule: A killing that occurs in the act of committing a different felony can still constitute a murder (i.e. felony + a killing = murder).

Although the rule on it’s face is simple there are a lot of complications that may arise:

People v. Fuller – Car Accident after stealing tires

Problems with the felony-murder rule for a first degree murder include:

  • It’s irrational
  • Destroys symmetry of the law (you can be less morally culpable and be charged of first degree murder)(You can be more morally culpable and be charged of second degree murder)
  • Duplicative. Sometimes you can still commit a murder and a felony and be charged separately instead of a felony-murder.

Pros and Cons of theory

  1. Deterrence (Pro: Keep people from committing felonies + keep people from accidentally killing)(Con: How can you deter something that is unintentional?)
  2. Transferred intent (Pro: Punish those who want to do harm to one thing and do another)(Con: Is too broad and unjustly expands murder charges)
  3. Under the retributive theory, (Pro: You did wrong, so you should be punished)(Con: Strict liability is a “primitive rationale” not considering moral attitudes (mens rea))


Inherently Dangerous – Applies only to second degree murder
People v. Howard – Got pulled over, sped away

We need to determine if the crime is inherently dangerous viewed abstractly. If the felony has any aspect that could be deemed safe, then the Felony-Murder does not apply.

How do we know if something is inherently dangerous? If the act of the felony results in a substantial risk of someone being killed (i.e. violating three traffic violations such as failing to set a blinker, going slightly over the speed limit, and failing to come to a complete stop is not inherently dangerous)

The “Independent Felony” (or Merger) Limitation – Applies only to second degree murder
People v. Smith – Child assault resulting in death

The purpose of the Felony-Murder rule is to deter felonious killing.

If the felony is an integral part of the homicide (assault resulting in death) then the felony-murder rule does not apply. The rule does not apply because the purpose is to deter killing. Here, the felony includes killing, so if somebody engages with the felony they are already beyond the point of deterrence.

So, assault resulting in death is an example of something that would not apply (shooting into a full building). If the felony is separated from the killing, the rule can apply (armed robbery resulting in death).

End of Midterm Material


Actus Reus

Traditional Approach: Forcible Rape

MPC Approach


  • Force
  • Impaired the person’s power to control conduct (i.e. drugs, etc.)
  • Against unconscious
  • Less than 10 years old

Gross Sexual Imposition

  • Threat to prevent resistance of person with ordinary resolution
  • Knowledge of suffering from mental disease
  • He knows that she is unaware that he is not her husband (even if she believes that he is).

Alabama Statute Approach

First Degree

  • Forceable compulsion
  • Against someone who is helpless or mentally incapacitated
  • Someone who is older than 16 against someone under 12

Second Degree

  • 16 or older against someone over 12, but not within two years of age.
  • Against someone who is mentally defective

Force and non consent

State v. Alston – On-campus

To demonstrate rape, both the elements of “force” and “against the victim’s will” needs to be met.

Big takeaway: The force must be related to the act, a pattern of force in the past is insufficient to prove the element.

The Resistance Requirement

The level of force needed to convict.

Rusk v. State – Stranger at a bar

Two points of view:

Why do we have the force requirement?

  1. Divide “forcible rape” and “nonconsensual intercourse”
  2. Force makes the act clear that it was not consensual
  3. Resistance puts the defendant on notice to shows mens rea
  4. Outdated notions of resistance

Why shouldn’t we have it?

  1. Puts women in danger
  2. It’s wrong to accuse the victim of the defendant’s actions
  3. Inconsistent with other crimes (to have the requirement)

Redefining “Force”

Commonwealth v. Berkowitz – Friend of the roommate

The defendant argues that there is “reluctant submission” which does not equal force or threat of force.

There are three possible ways to show rape from this case:

  1. Mental coercion
    • No indication in this case because no authority, no differences in age, etc.
  2. Threat of force
    • No indication here because he did not say anything threatening.
  3. Application of force
    • The court here said no, because he did not do anything more forceful than what the act itself entails.

This is a common law approach. Under the MPC, rape requires force. Gross Sexual Imposition requires threat. Under the MPC, he would not have been guilty of either because there wasn’t even a threat involved.

Abandoning “Force”: Rape as Non-Consensual Sexual Intercourse (Rape Reform)

State of New Jersey in the Interest of M.T.S. – Friends in the same household

Reformed rule is that Rape is sexual penetration without 1) affirmative and 2) freely-given permission of the victim.

Permission can be determined either by words or actions. Passive agreement is not permission adopting the Yes model below.

Under this rule, Berkowitz would also have been guilty.

Possible Script (What needs to be said) Models
  1. Yes model
    • Requires a “yes” before any act.
  2. No model
    • “No” means “no”, but absence might mean “yes”.
  3. Negotiation model
    • Affirmative discussion and exchange of views prior to any act.

Mens Rea

Mistake of Fact (Mistake of Consent)

Commonwealth v. Lopez – Met about an hour before, rape in the forest

We need to determine if rule follows specific intent or general intent. Rape most commonly follows general intent because there is typically no mens rea.

  • Specific Intent: Any mistake that negates element can be defense
  • General Intent: Mistake must be genuinely held but also must be reasonable under the circumstances

How do we determine if the mistake is genuinely held and reasonable? There is a very small window where the consent is extremely questionable then it can be reasonable. When there is such a disparity in the accounts, it’s evident that one party is lying.

In the MPC, you can use a mistake of fact defense if it negates the element (reckless for rape). For instance, if the element says knowing, all the defendant needs to prove is that he acted without knowing.

General Defenses to Crimes


  1. Failure of Proof Defense
    • Mistake of Fact or Law.
  2. Offense Modification
    • For instance, a father paying a random for his kidnapped child cannot be found guilty of being an accomplice in the accomplishment of the crime. Simply, they are not the person who caused the evil.
  3. Justifications
    • Burning a cornfield as a firebreak to prevent a fire from crossing and reaching a town.
  4. Excuses
    • The actor realizes the action is wrong but there are other conditions that suggest they are not responsible.
  5. Nonexculpatory Public Policy Defense
    • Statute of limitations.

Principles of Justification

A justification is something that is in reality a good (social benefit) because of the circumstances, even when it is normally considered a harm. Whereas, an excuse is inherently doing a bad thing, with no social benefit, but lack for moral blame for why they did that thing.

  1. May help you win cases
  2. Sends a clear message that a justification is a good thing whereas an excuse is inherently wrong even if there is no blame.
  3. Puts the burden of proof on the prosecution for justification. However, for an excuse, the defendant has to show they meet those exceptions.
  4. Removes accomplice liability

Justification Defenses

A justification defense has two elements. The action taken was necessary to protect the interest and the harm dealt was proportional to the harm received.


United States v. Peterson – Windshield Wipers

The right of self-defense requires

  1. Necessity
  2. Proportional force

At issue is necessity which requires:

  1. An unlawful threat
  2. Reasonable belief of peril
  3. Response was necessary to save himself.

However, someone can’t use self-defense if they are the aggressor. How do you determine who is the aggressor?

  1. Provoke the conflict
  2. Precipitates the altercation
  3. One who is not free from fault
  4. The one who incites the fatal attack

Additionally, one must retreat if they can, unless they meet the exception of the “castle rule” (one does not need to retreat if they are in their home). The castle rule does not apply if the person is the aggressor.

Proportionality. A non-deadly attack cannot be escallated with deadly force. There is no degree of deadly force, it will either kill or it will not.

Reasonable Belief Standard

People v. Goetz – On the subway

Under the MPC, “belief” is entirely subjective. In this New York, the word “reasonableness” adds an objective approach to the test. The only exception to this is retreat. Retreat is examined entirely by a subjective standpoint.

As a matter of policy, it is helpful to have an objective standard. This is because if something is subjective, there may be a lot of variation between what a person may constitute a belief.

However, there are still subjective characteristics that can be used under this objective standard. For instance, they can look at the defendant’s past experiences, physical attributes of the aggressor, and the physical movements of the aggressor.

  • What were they holding?
  • How old are they?
  • What were they wearing?
  • How they made their statements?

What happens if you have a subjective belief but the action was unreasonable? Often times that is going to result in a being convicted of a lessor crime. This is because the mens rea for a higher crime may not be present (i.e. Murder may require malicious and a belief, even unreasonable, may make it manslaughter).

State v. Norman – Battered Wife Syndrome

Can you ever claim self-defense against someone who was currently passive (even when they were aggressive in the past and is certain that they will be violent in the future). Debate about “immediate”.

Defense of Others

People v. Kurr – Defending a fetus

Defense of others can apply to fetuses within the mother depending on the jurisdiction.

What if you walk up on a situation, see someone being attacked and run to their aid? Defense of others apply. What if you are mistaken and go to the aid of someone who is lawfully attacking the other (i.e. the person being attacked was actually the aggressor). The “Alter Ego Rule”. The traditional rule allowed a defense of others if the person who is being aggressed was lawfully able to defend themselves. The modern rule allows someone to defend others for a “reasonable belief”.

MPC § 3.05

The MPC follows the modern approach to the Alter Ego Rule. If he sees an injury against another and feels like they would be threatened using that force, looks at the circumstances as he believes them to be, and the actor believed his action was necessary to protect the other person. It is all dependent on a subjective “belief”.

However, the MPC limits this to a person who is born alive.

Defense of Habitation/Property

Common Law

State v. Boyett – Love triangle

The test is that the defendant can use lethal force against an intruder when the defendant reasonably believes such force is necessary to prevent the immediate commission of a felony in the home. This includes when a defendant reasonably believes that the person is outside but has the intent to come inside. However, this must be done to prevent a violent felony inside the home.

Because the person knocked and backed away (did not try to enter), then the defense of habitation is not necessary.

The traditional approach is to use “all the force apparently necessary to repel any invasion of the home.” Any force is fine for any invasion.

MPC 3.06(3)(d)

The intruder needs to try and enter by the home to dispossess the homeowner or the person is going there to attend to commit a certain crime including

You cannot use deadly force at all for personal property.

Necessity: Choice of Evil


Nelson v. State – Stuck in the mud

Necessity requires:

  1. The illegal action was done to prevent a significant evil
  2. There must have been no adequate alternatives
  3. and the harm caused must not have been disproportionate to the harm avoided.

The reason why necessity works is because the purpose of it is to alleviate a harm. Therefore, there can be nothing wrong, because now there was no harm.

We do need to look at a subjective part, examining what the defendant would have thought at at the time, given the circumstances. However, in this case they still fail using that test.

MPC 3.02
  • Actor believes its necessary to avoid evil (Subjective: Defendant’s belief)
  • Harm sought to be avoided is greater than that sought to be prevented by the law defining the offense (Balance of harm: Damage of vehicle v. damage of another’s vehicle after stealing it)
  • No specific exception to necessity defense in the statute
  • No other specific exception to necessity by legislative intent.

For this case, there would have been no defense under the MPC. However, not many states have adopted this approach (3 states).

Civil Disobedience

United States v. Schoon – IRS and El Salvador

There is a difference between direct and indirect civil disobedience. Indirect civil disobedience means to violate a law that is not the object the protest (i.e. violating a law of obstruction to protest El Salvador tax involvement). Direct civil disobedience is violating a law that is directly related to the protesting actions (i.e. think Rosa Parks sitting on the bus where she was not supposed to sit according to the law).

Fails three of the four elements every single time of “indirect” civil disobedience. It also often fails for “direct” civil disobedience.

  • It fails the harm because there is nothing wrong with a lawful policy.
  • Fails the causal relationship because it is unlikely to solve the problem.
  • Finally, fails the legal alternatives because this needs to be done in a different matter and needs to be done by going to congress.

How do these steps apply to direct civil disobedience?

  • Harm trying to change? (Nothing wrong with sitting at a lunch counter, trying to prevent greater discrimination)
  • Prevent imminent harm? (Currently segregated, the harm is currently ongoing)
  • Causal relationship? (Sitting at the counter is directly related to the harm and can create a change i.e. desegregate the restaurant by desegregating the restaurant).
  • Legal alternatives? (The arguments are not likely to make it to Congress)

Can Necessity be a defense to murder?

The Queen v. Dudley and Stephens – Surviving a shipwreck

No, this goes back to our discussion on utilitarian and retributive theory. Think of the trolley problem.

  • Hypothetical 1 – Heading towards 5, change it to 1?
    • Under the common law approach, you cannot change the track from the 5 to the 1.
    • Under the MPC approach, you can change the track from the 5 to the 1.
  • Hypothetical 2 – Kill a person to harvest their organs to save 5 people?
    • Same approach is Hypothetical 1 but people feel different about it.

Common law makes no exception, you are to let the train run over the 5. The MPC takes a different approach allowing you to flip the switch. But how does that relate to the second hypothetical?

Excuse Defenses



United States v. Contento-Pachon – Smuggling Drugs

Duress requires:

  1. Immediate threat of death or serious bodily injury
  2. A well-grounded fear that the threat will be carried out
  3. No reasonable opportunity to escape the threatened harm

What is the difference between duress and necessity? Necessity is the choice between two evils that will ultimately achieve a greater good. That is why necessity is a justification, not an excuse. Necessity won’t work here because it is not for the benefit of the general welfare.

Why do we allow a duress defense? Under utilitarian theory: He can’t be deterred because it is not his free will to break the law. Therefore, he is not a fit person for punishment. Under retributive theory: He can’t be punished because he is not morally wrong. The crime is caused by the threat of force.

What about the MPC? There are a couple of differences. First, there is no immediacy requirement. Second, the threat of harm does not need to be death or serious bodily injury. Additionally, homicide charges may also be alright in the MPC. In this case, he would have had access to the duress defense under the MPC.


People v. Anderson – Killing the camper

Can duress serve as an absolute defense to murder (acquittal)?

No, never.

Can duress reduce the charge from murder to a lesser crime?

Yes, to an extent.

What’s the biggest takeaways:

  1. Duress will never negate a murder in its entirety.
  2. Duress will never be a manslaughter.
  3. However, duress could, depending on the case, take it from first degree to second degree murder.


United States. v. Veach – Resisting the Park Rangers

Lets look at each crime he was charged for:

§ 111: This is a general intent crime

§ 115: This is a specific intent crime because of the mens rea included in the state.

What are the rules for when intoxication can be a defense? Voluntary intoxication can serve as a defense to specific intent crimes only. Involuntary intoxication can be a defense to both specific and general intent crimes.

This in this case, he can use the defense only for the second charge (§115). If this is true, there is a retrial for § 115 for the jury to hear the case.

Involuntary Intoxication

There are 4 types of involuntary intoxication:

  1. Coerced intoxication
  2. Innocent mistake
  3. Unexpected intoxication – Taking a prescription and is not aware of the bodily impacts (i.e. Diabetic taking insulin without food).
  4. Pathological intoxication – When a person takes a normal amount of alcohol but unaware that it has extreme results on their body.

There is no utilitarian or retributive reason to punish a person for a crime who is involuntarily intoxicated.


Insanity is not a medical condition, it’s a legal pronouncement. You can have a mental illness but not be insane. Insanity declaration comes from a jury.

Procedure with insanity

Step 1: Separate insanity and competency. Competency is whether the defendant can understand that there are proceedings occurring around them. Everyone is assumed to be competent initially. They must be competent for proceedings to occur.

Step 2: If compenent, the defense makes a NGRI motion.

Step 3: The defendant will undergo psychological testing. They are permitted to bring their own psychologist.

Step 4: Trial. Testimony is provided, instructions are given, verdict is delivered.

Step 5: If the NGRI verdict is provided, the defendant is committed for mental health treatment as long as they are mentally ill and dangerous.

Why we excuse the insane

  • Utilitarian
    • Purpose is not served because they can’t be deterred or rehabilitated. They can’t be deterred because they are lacking the criminal mindset. That is also why they can’t be criminally rehabilitated. Instead, they need to be civilly rehabilitated.
  • Retributive
    • The purpose is not served because the person is not morally blameworthy. This is because those who are criminally insane do not know what they did was wrong.

Defining Insanity

State v. Johnson – Insanity tests

There are several tests for insanity, we focus on only two in this class.

M’Naghten Test

At the time of the offense:

  1. The defendant has a disease in the mind so that:
  2. He did not know either
    1. The nature and quality of his acts
    2. If he did know the nature and quality, did not know his acts were wrong

The issue with this is that it is an all or nothing approach, restricts expert testimony, and fails to consider emotional (volition) impairments (only focus on cognition).

MPC Test

A person is not liable for a mental disease or defect that causes a lack of substantial capacity to either

  1. Appreciate the [wrongfulness] of his conduct or
  2. To conform their conduct to the law.

Better than M’Naghten because this is not an “all-or-nothing approach”. Additionally, this discusses both the cognitive impairment and the volition. However, there is still a problem. The benefit of not having the “all-or-nothing” approach is also a drawback. That is, there is no line for the jury to know when the person becomes insane.

See Yates v. State for application.

Inchoate Offenses

Crimes that are punishable even though the intended crime was not completed.


There are two types of attempt. First, incomplete attempt. This is when a person sets out to do something but desists because of other factors (interrupted by police). The second is complete attempt. This is when a person accomplishes everything they desired to do except for the desired result (shoots and misses).

Mens Rea

People v. Gentry – Gasoline

The mens rea required for attempt is the “intent”. The intent is what matters. If you intend to throw a match at the person, knowing that it will likely catch her on fire, but don’t want to kill her, then there was no attempt of murder.

Bruce v. State – Attempted Felony-Murder (Example)

The intent in attempt must match up with the intent in the crime. For instance, you can’t be convicted of a felony-murder because that is an unintentional homicide. Same with involuntary manslaughter. You can’t be convicted of attempt to an unintentional crime.

Actus Reus

The actus reus issue mostly focuses on incomplete attempts (interruption). When have they crossed the line for conviction. There are several tests. Just note that the common law approach is more strict than the MPC approach

Common Law
United States v. Mandujano – Introducing Tests
Commonwealth v. Peaslee – Changed his mind about burning down a building

To be guilty of an attempt, it would have had to be his last step before the actual commission of the crime. Because he was nowhere near the scene of the crime, he could not have made an attempt.

People v. Rizzo – Failing to find who to rob

Dangerous Proximity test. That is, the attempt occurs when the act is so close to the result that the danger of success is very great.

If you are an officer and are aware of a higher mens rea, this line can be drawn sooner. Otherwise, you would need to wait until the crime was almost to be committed.

State v. Reeves – Rat Poison

Under the MPC, for incomplete attempt, a substantial step towards the completion of the crime is sufficient to find attempt.

What constitutes a substantial step? A non-exhaustive list includes:

  1. Waiting to ambush
  2. Taking necessary materials to the scene of the crime
  3. Etc.

Special Defenses


People v. Thousand – Undercover cop

Factual Impossibility – “When the defendant’s intended end constitutes a crime but fails to consummate it because of a factual circumstance unknown to her or beyond her control.” In English, a person’s goal is a crime but fails due to an external reason. An example is a person who pulls a gun and pulls the trigger but the defendant doesn’t know that the gun is unloaded.

Pure legal impossibility – “The criminal law does not prohibit the defendant’s conduct or the intended result.” For example, a person can believe that the age of consent is 18 and has sexual contact with a 17 year old. Turns out that the age of consent was 17. This can serve as a defense because there was never an actual crime.

Hybrid legal impossibility – “The defendant has an illegal goal, but the goal is impossible due to a factual mistake regarding the legal status of some factor (attendant circumstances) that is an element of the offense.” In English, the defendant wants to commit a crime, but a factual error keeps an element of the crime from being met. An example of this is a person who believes they possessed stolen goods, but the goods were actually purchased lawfully. Every case of hybrid legal impossibility contains a factual mistake. It is important to realize what the mistake was about. This is a defense as long as we focus more on the legal impossibility.

This case is a clear hybrid legal impossibility and that is why the lower courts determine that the case should be dismissed. However, this court determined that they actually needed to look at attempt.

The above is the common law approach.

MPC 5.01(1-2)

First, you need to determine if there was an offense. The MPC allows for only a pure legal impossibility defense.


Commonwealth v. McCloskey – Prison Break

The majority says that the defendant didn’t meet the elements for attempt (still in preparation). As a result, he was still in the position to abandon his escape. (Traditional approach)

The concurrence disagrees with the analysis but agrees with the result. Here, the defendant “voluntarily abandoned” the attempt. Therefore, the utilitarian theory worked (deterred the defendant) and the person cannot be guilty. (Modern approach)

MPC 5.01(4): Renunciation

Only applied to 5.01(1)(b) and (c) says that you can abandon the attempt as long as it is complete and voluntary.

Not Complete = If the defendant is motivated to only postpone the criminal conduct

Not Voluntary = If the person desists due to the probability of detection or apprehension which makes it more difficult to commit the crime.


“Solicitation involves the asking, enticing, inducing, or counseling of another to commit a crime.” State v. Mann, 345 S.E.2d 365 (N.C. 1986). This is an inchoate crime.

State v. Cotton – Undercover cop
MPC 5.02(1) Definition of Solicitation

The solicitor must:

  1. Have the purpose (conscious object) of committing a crime.
  2. Command, encourage, or request another person to engage in the conduct
  3. The conduct asked for must be either
    1. The crime
    2. Attempt to commit the crime
    3. Makes them an accomplice to the crime.

Under MPC 5.02(2) as long as the defendant had the intent and had made an act towards expressing that communication, he can be guilty.

In this case, the legislature failed to adopt MPC 5.02(2). Therefore, his communication is not a crime because he failed to deliver the letters. Instead, this is “attempted solicitation”.


Here is the progression of how a crime can move with the defendant’s actions.

Solicitation (Attempted Conspiracy) >> Conspiracy >> Attempt >> Substantive crime.

Conspiracy and the substantive crime do not merge. This means that a person can be convicted of BOTH conspiracy and the crime.

People v. Carter

Conspiracy is a partnership that is formed for the sake of committing a crime. It has two elements:

  1. The intent to combine with others
  2. And the intent to accomplish the illegal objective.

If the actual crime is carried out, a person can be guilty of both conspiracy and the committed crime.

Pinkerton v. United States – Avoiding Taxes

Pinkerton says that the overt action of one partner makes all other partners guilty of the crime. There are limits to this rule.

  1. Not in furtherance of the crime,
  2. Not within the scope of the crime,
  3. And the consequences of the plan are not reasonably foreseeable.

If all parties are found guilty of conspiracy, then they will also be liable for the other crimes in addition to the conspiracy.

Mens Rea

People v. Swain – Drive by shooting

You can’t be charged with a conspiracy to commit a second degree murder. That is because conspiracy is a specific intent crime. That is, you can’t be charged with any unintentional homicide or any other unintentional crime.

Actus Reus

Commonwealth v. Azim – Getaway driver

You can find circumstantial evidence to show conspiracy by:

  1. Association with the alleged conspirators
  2. Knowledge of the commission of the crime
  3. Presence at the scene of the crime
  4. Participation in the object of conspiracy
Commonwealth v. Cook – Devious brothers

This case is about the difference between an accomplish and a conspirator. Conspiracy is about an agreement to commit a crime whereas an accomplice is a person who helps engage in a crime. Therefore, he can be an accomplice but not a conspirator.

Types (Bilateral or Unilateral)

Bilateral – Two or more parties are necessary to have a conspiracy. See People v. Foster

Unilateral – One person alone could create a conspiracy.

Defenses to Conspiracy

Iannelli v. United States

Wharton’s rule: A person cannot be convicted of a conspiracy if the statute requires specifically that two people are necessary to commit the crime (e.g. dwelling, adultery, bigamy). The exception to the rule is that if more than 2 people are required, then you can charge them with conspiracy.

Gerbardi v. United States

A victim of a crime cannot be a conspirator of that crime.

People v. Sconce

True withdrawal:

  • Rejection of the conspiracy communicated to all the co-conspirators

Full defense only a defense only if no overt act has occurred.

If an overt act. has occurred, the benefit is that there is a lack of future Pinkerton liability.

The benefit of allowing a withdrawal as a defense is because you want to encourage withdraw.

Under the MPC 5.03(6) Renunciation. You can use withdraw as a total defense if the defendant “thwart[s] the success of the conspiracy”.

Accomplice Liability

State v. Hoselton

An accomplice is a person who associates themselves with the activity and can therefore share the criminal intent. Elements include:

  1. Gave assistance or aid to the crime or failed to perform a legal duty to prevent it
  2. With the intent to commit the crime.

To prove that someone is an accomplice, there must be the mens rea and the actus reus.

  1. Actus Reus – Give assistance or encouragement or failed to perform legal duty to prevent the crime
  2. Mens Rea – Dual intent. Intent to aid, and intent to commit the crime.
Riley v. State

A person needs to act purposeful to the conduct and then follow what the law says as to the mens rea required for that result.


State v. V.T.
  1. Passive behavior is not enough to sustain a conviction, there must be some affirmative act.
People v. Genoa

2. The state must show that the crime was committed by an accomplice.

United States v. Lopez

3. If the principle is justified in their defense, then the accomplice cannot be guilty. However, if the principle is excused in their defense, then the accomplice can be guilty.



The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.