I.

INTRODUCTION
WHAT SHOULD BE PUNISHED
Regina v. Dudley and Stephens
Facts: Four men trapped on boat at sea w/ little food.  Captain Dudley and his
first mate Stevens decided to kill Parker the cabin boy and eat him to save
the rest of them.  Brooks did not assent.  Dudley and Stevens charged w/ murder,
but sentences to death are commuted to 6 mos.

Can see major issues of criminal law in this case mens rea, actus
reus, causation (would boat maker be negligent), parties
(accomplice and conspiratorial liability), grading of
offenses, category of offenses, sentencing, systemic issues
and policy issues

Issue:  whether killing under circumstances set forth in verdict be or not be murder

Decision: guilty of murder.  Sentenced to death (crown commuted punishment to 6 months of

imprisonment)

Hold: Defendants’ act in this case was willful murder, facts no legal justification of homicide. 
Not correct to say that there is any absolute or unqualified necessity to preserve one’s life. 

Notes

Used to be custom of sea cannibalism. British officials were concerned about this so determined
to make a test case of the incident. 

2(a): our system does provide for self defense as a justification

(b): Our system provides a defense for certain defendants who we believe could not be expected
to have done better, like children and insane people. 

Notes (Pg. 809-814). 

3.  US v. Holms: throwing passengers off boat in order to survive.  If two persons face situation
where only one can survive, neither is bound to save other’s life by sacrificing his own. 
Cardozo: where two or more are overtaken by common disaster, there is no right on part of one
to save the lives of some by killing of another. 

Notes on taking life to save life: Model Penal Code commentary on §3.02-life of every individual
must be taken in such case to be of equal value and the numerical preponderance in the lives
saved compared to those sacrificed surely should establish legal justification for act.  Resistance
to such a position evident in rejection by statutes and commentary.

Notes on rights and lives: Model Penal Code: can justify killing innocent, nonthreatening
bystander when necessary to avid death of several.

1
II. THE ACTUS REUS REQUIREMENT
Two Elements Needed to Commit a Criminal Act under Common Law:
1. Actus Reus - A voluntary act.
2. Mens Rea - A guilty mind.
MPC Actus Reus Def.
(1)"A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is
physically capable."

(2) MPC acts that are not voluntary:

1. Reflex or convulsion
2. Bodily movement during uncosciouness or sleep
3. Conduct during hypnosis or hypnotic suggestion.
4. Bodily movement that is otherwise not the product of effort or determination
of actor, either conscious or habitual.
(3) MPC treats normal habitual actions as voluntary
VOLUNTARY ACTS
Martin v. State
Man is charged for manifesting a drunken condition by boisterous conduct in a public
place. He was arrested at home and then charged for the conduct while he was
in Police Custody on highway. Because he did not voluntarly choose to appear on the
highway, he does not fullfil the AR requirement.

People v. Newton
Newton appeals manslaughter judgment. He shot and killed a cop after he was shot in
the abdomen. Expert witness testifies that being shot in the abdomen can
produce a sudden unconscious reflex shock condition. If Martin shot the cop
during this period of unconsciousness, his reflex action in shooting is not
considered voluntary. Court must instruct jury to accept such a defense if they find the
facts to be true.

OTHER ACTS CONSIDERED TO BE INVOLUNTARY:

1. Somnambulism (Sleep Walking) Involuntary under MPC and Common Law.
2. Epilepsy - Acts committed during a seizure considered involuntary.

TIMEFRAMING
Timeframing is important in determining voluntary action. Depending on the timeframe we can re-
define what is or what is not voluntary. We must look at the voluntariness of the act at the specific time
in which the act occurred. Look at compulsions "suddenly suffered" vs. a history of compulsive disorder.

2
OMISSIONS
Failure to act can sometimes constitute the breach of a legal duty and fullfil the Actus Reus requirement
when that recognized legal duty is breached.
WAYS TO IMPOSE A LEGAL DUTY:
1. Enact a Statute that Imposes a Duty
-Creates problems with fair notice.
- Enforcing Criminal Liability in the face of Civil Liability
2. Status Relationship (Duty of Care based on status between parties)
- Between Parent and Child, Husband and Wife, and Live In Lovers (some juris. Only)
3. Contractual Assumption of Duty (Express or Implied)
-Example of an "implied" duty would be mountain climbers who implicitly agree to help
each other in the event of an accident.

Jones v. United States

A baby dies because D failed to care for and feed it although she had ample means to do
so. The baby was not hers and there was no evidence that she was paid (assumed a
duty) to care for the baby. If such facts are true, then she has no duty and does
not fulfill the Actus Reus Requirement. Legal relationships of duty are questions for the
jury to find to see if such a duty existed beyond a reasonable doubt.

Pope v. State
Statutory interpretation case. Norris beats and abuses her child in front of Pope and
Pope does nothing to stop her. Statue says Pope can be held liable if she were
responsible for supervising the child. Because Pope was not the mother,
adoptive parent, or in loco parentis or assumed any responsibility, she did not
commit the necessary omission to act to fulfill the AR. Had the mother not been
present, then maybe a different story.

John Kleinig, Good Samaritanism

Says that while Samartainism is morally good, it is legally troublesome because it
diminishes freedom.

People v. Beardsley (notes)

Beardsley's extramarital lover takes fatal dose of morphine tablets and Beardsley does
nothing to help her. Beardsley acquitted ofmanslaughter because he owes her
no legal duty of care.

3
 People v. Carroll (notes)
Stepmother fails to prevent husband from killing his daughter. Duty of care to child
owed by stepmother because she is the functional equivalent of a parent.

State v. Miranda (notes)

Commonwealth v. Cardwell (notes)

State v. Bradshaw (notes)

III. THE MENS REA REQUIREMENT

There is no crime without bad thoughts. There must be a choice to do something wrong.
However, we do not punish for bad thoughts alone. We still need an AR.
THEFT - One must KNOWINGLY TAKE the object to constitute theft. Joyriding not
considered theft since permanent possession of car is unaltered.

Problem with MR is that statutes are written with imprecision and it is difficult to determine
what level of MR is required. We must often look at a person's actions to determine the MR.

BASIC CONCEPT
Regina v. Cunningham (COMMON LAW APPLICATION OF MENS REA)
Cunningham stole a gas meter from Wade's house. There is no question that he
intended to steal it and is guilty of larceny. Wade dies from the resultant
removal of the meter, however, and the issue becomes if Cunningham can be convicted
for murder. Here the MR standard is malicious intent for murder. Common law held
that malicious intent equates with wicked intent, but court doesn't limit its application
to this. Instead it also looks at the forseeability of harm to Wade via Cunningham's
actions.

Regina v. Faulkner (Squib) (COMMON LAW)

Sailor boards a ship to steal rum. He lights a match so that he can see but accidentally
sets fire to the ship causing it to explode. Is he liable for the destruction of the
ship a although he never intended to destroy it? Court says he is not liable because no
evidence of MR indicates that he was aware that his actions posed a
substantial risk in causing a fire aboard the ship.

COMMON LAW MENS REA

Common law often attached many different meanings to Mens Rea (willful, intentional, malicious, etc.)
with different meanings in certain contexts making it difficult to apply. Now, CL adopt the MR of malice
as the default rule. ABSENT INDICATIONS TO THE CONTRARY, COURTS WILL INTERPRET MALICE TO
REQUIRE THAT THE DEFENDANT WAS AWARE HIS ACTIONS POSED A SUBSTANTIAL RISK OF CAUSING

4
THE PROHIBITED HARM. IS THE RISK SUBSTANTIAL IN RELATION TO THE NATURE OF A PARTICULAR
SITUATION?

Specific v. General Intent

State v. Hazelwood (Squib)(MODERN APP OF COMMON LAW)

Explores the difference between criminal and civil negligence. CN requires a more
culpable state of mind because CN is so offensive that it requires punishment in
addition to damages. Court says civil negligence standards should apply in the
case.

Santillanes v. New Mexico (Squib) (DETERMINING WEATHER CIVIL OR CRIMINAL

NEGLIGENCE STANDARD APPLIES)
Court looks at definition of negligence under child abuse statute. Says criminal standard
of negligence should apply.

MPC 2.02 (MR REQUIREMENTS)

1. You must always have a Mens Rea to go along with every Actus Reus element of the crime
(pair them together).
2. There must be a Mens Rea coupled with every single action.
3. If a statute does not mention a specific Mens Rea, we still must provide one regardless.

4 LEVELS OF MR IN MPC
1. Purpose - Conscious intention in committing the AR to obtain the desired result.
2. Knowledge - Knowing that the result of the AR may happen.
3. Recklessness - Conscious disregard of a substantial and unjustifiable risk in committing the AR.
4. Negligence - Deviation from a standard of care of a reasonable person in committing the AR.

APPLYING MPC TO A CRIME

1. Determine the Material Elements of the offense.
2. Determine which type of Mens Rea (purpose, knowledge, recklessness or negligence)
is required for each material element.

5
 United States v. Jewell (WILLFULL BLINDNESS/OSTRICH NOT SUFFICIENT TO PROVE LACK
OF KNOWLEDGE)
Jewell is convicted of knowingly transporting marijuana in his car. There is evidence that
he knew of a secret compartment in his car and that it was likely filled with marijuana,
but that he deliberately avoided positively determining the presence of the
marijuana so he could avoid responsibility if caught. Court says he still had
requisite knowledge according to MPC 2.02 (7) WHEN KNOWLEDGE OF THE
EXISTENCE OF A PARTICULAR FACT IS AN ELEMENT OF THE OFFENSE, KNOWLEDGE IS
ESTABLISHED IF A PERSON IS AWARE OF A HIGH PROBABILITY OF ITS EXISTENCE
UNLESS HE BELIEVES THAT IT DOES NOT EXIST.

United States v. Giovanetti (notes) (HOW TO TELL IF ONE REALLY WAS IGNORANT IN
KNOWLEDGE OR WAS PURPOSEFULLY BURRYING THEIR HEADS IN THE SAND TO
AVOID KNOWLEDGE)
Ostriches do not just fail to follow through on their suspicions of bad things. They are
not merely careless birds. They bury their heads in the sand so that they will not
see or hear bad things. They deliberately avoid acquiring unpleasant knowledge. THE
OSTRICH INSTRUCTION IS DESIGNED FOR CASES IN WHICH THERE IS EVIDENCE
THAT THE DEFENDANT, KNOWING OR STRONGLY SUSPECTING THAT HE IS
INVOLVED IN SHADY DEALINGS, TAKES STEPS TO MAKE SURE THAT HE DOES NOT
ACQUIRE FULL OR EXACT KNOWLEDGE OF THE NATURE AND EXTENT OF THOSE
DEALINGS.

MISTAKE OF LAW I (IGNORANCE OR MISUNDERSTANDING OF THE LAW)

People v. Marrero
Marrero is arrested for unlawful possession of a firearm violating a New York Penal Law.
He invokes a mistake of law defense arguing that his status as a Federal Corrections
Officer falls under the exemption in the statute for "peace officers - officers of
any state correctional facility or any penal correctional institution." Appellate
Court says he does not fall within the exempted category of people. Marrero then
tries to argue that he lacked the MR for violating the statute because he misread and
misinterpreted it. Court says that one's personal misunderstanding or
misreading of a statute does not excuse criminal conduct. Statutes impose strict
liability and no MR is required. THIS IS A WEIRD CASE; DOES ANY PENAL CORRECTIONAL
INSTITUTION MEAN ONLY THOSE IN NEW YORK? IT SEEMS THAT MARRERO
SHOULD GET THE EXEMPTION. OTHERS THINK COURT CONVICTED HIM BECAUSE HE
ACTED MENACINGLY WHEN POLICE TRIED TO CONFISCATE HIS WEAPON.

6
Court is saying that he cannot rely on the statute since he never read it
beforehand

Regina v. Smith (Ignorantia Legis Doctrine - Notes)(EXAMPLE OF A VALID MISTAKE OF

LAW DEFENSE) Smith was convicted of a statute that imposed punishment for
destroying another's property. Smith destroyed some floorboards and wall
panels in his apartment that he himself had put up. His mistake of law defense was
upheld because he did no damage to the other's property; he only damaged his
OWN property and thus the statute cannot be applicable to his actions.

Cheek v. United States (EXCEPTION TO IGNORANCE OF LAW AS AN INVALID DEFENSE)

General rule is that ignorance or misunderstanding of a law is not a valid defense to
criminal prosecution. Cheek illustrates an exception to the rule. Some criminal statutes
provide for specific intent crimes where ignorance of law may be a valid
defense. Criminal Tax statutes in Cheek are examples of statutes for specific
intent crimes.

STATUTORY INTERPRETATION
How does court interpret "knowingly" language in a statute? Does it require D to know that the statute
in question exists and that it prohibits him from committing the act? Or does it merely mean that D
knowingly committed the act itself regardless of his knowledge of the statute? Often, the court will look
at the context in which the statute was violated to determine the outcome.

Liparota v. United States (notes)

Court reverses. SAYS D HAD TO KNOW ABOUT THE STATUTE IN ORDER TO VIOLATE IT.
Bryan v. United States (notes)
"Wilfully" as worded in the stautute means that D had to only know that what he was
doing was unlawful. It made no difference that he did not know if the statute
existed. Convicting him for an innocent ignorance of the statute was something
court did not have to worry about.
U.S. v. Ansaldi (notes)
D did not know that the drug he sold was prohibited by statute. Statute required D to
knowingly distribute the drug, but court says knowledge of statute irrelevant
U.S. v. Overholt (notes)
Safe Drinking Water Act. Act required D to willfully violate. D did not know he was doing
anything unlawful, but court upheld conviction anyway.

TREND SEEMS TO BE THAT COURTS ARE WILLING TO INTERPRET STATUTES AS EXAMPLES OF

STRICT LIABILITY; ONLY GO AGAINST THIS WHEN PUBLIC POLICY IS AFFECTED

7
 MPC Apprach to Mistake of Law
MPC 2.04(1) Ignorance or mistake as to a matter of fact or law is a defense if it negatives the
purpose, belief, recklessness or negligence required to establish a material element of the
offense.
MPC 2.04(3) MOL Defense available only when D acts in reasonable reliance upon an official
statement of the law, afterward determined to be invalid or erroneous.

U.S. v. Albertini (p. 281)

MISTAKE OF LAW II
Lambert v. California (IGNORANCE OF LAW AS A VALID DEFENSE)
Lambert was an ex-felon and upon moving to Los Angeles, she failed to register her
name which was required for all the ex-felons living in LA. She was arrested and charged
with the crime. The defendant argued that she had no idea that she had to register her
name and she argued that convicting her would deprive her of Due Process.
Court says her ignorance of the law could be used as a valid defense. Her conduct
was wholly passive and court says statute does little for the public good. Violates due process since she
had no knowledge of duty to register.

HOW TO ANALYZE A MISTAKE OF LAW CASE:

Mistake of law depends on a mistake you made at a given moment. There needs to be some
knowledge that you are relying on an official decision. We base this upon common law norms
and due process.

Reasonable Reliance comes from a reading of the model penal code. Albertini is different from
Marrero because fair notice was assumed in Marrero

1. What is the law?

2. Was the intent meant or was a reasonable reliance upon an authority relied upon?
3. Parse that authority. Upon what what authority did D. rely?
4. Do we meet all other due process obligations in terms of fair notice? (Lambert)

8
MISTAKE OF FACT
COMMON LAW DEFINITION
Exculpatory if it negates intent or moral culpability of a crime.

MPC 2.04 Mistake of Fact

Regina v. Prince
Guy commits statutory rape and claims that he never knew the girl's age so he did not
have the mens rea INTENT to complete the crime. Under common law,
ignorance of fact is no excuse. Unless a statute specifically says that you must have
knowledge that your actions constitute a crime, then you are still guilty even if
you didn't think you were doing anything wrong.

People v. Olsen
Guy believes girl was 16 but she was only 13. He violates a statute by committing a lewd
act on a minor. The Court relied on the lesser crime principle to uphold the
conviction. Basically, the lesser crime principle says that if you believe you
are committing a little crime when in actuality you are committing a biog
crime, you are still culpable for the big crime even though there was a
mistake in fact. In this case, Olsen claimed he thought the girl was 16, which
would still have been a crime under California law, just a lesser one. No negation
of intent.

A Minor v. Director of Public Prosecutions

15 year old engages in sexual conduct with a 13 year old. Court reverses lower court and
allows defense of mistake of fact. Prosecution needs to prove an absence of genuine
belief on behalf of D.

Garnett v. State
Again, older boy charged with statutory rape of younger girl. In this case, boy is mentally
retarded and based his mistaken belief upon interactions with the friends of the girl.
Maryland does not allow any mistake of law defense and court decides that any
change in the Mens Rea element should come from the legislature via statute.

9
STRICT LIABILITY

Strict liability is extreme in that it is satisfied without any required mens rea element. Simply
commiting the prohibited act is sufficient to trigger liability.

REGULATORY STATUTES: Regulatory statutes are in effect to police society to reduce the
probability of a harm. They thus generally do not require a culpable state of mind unless
specifically provided for in the statute in question.

U.S. v. Balint (REGULATORY STATUTES INOLVE NO REQUIRED MENS REA)

D is guilty of violating Narcotics Act by selling derivatives of opium and coca leaves. D
claims they lacked the requisite knowledge to violate the statute. Here, the
court interprets the statute along public policy lines. Public policy wants to protect
public from harm.

U.S. v. Dotterweich (VICARIOUS LIABILITY IN REGULATORY STATUTES)

Dotterweich's company violates a regulatory statute and Dotterweich is held vicariously
liable b/c his employee mislabeled some pharmaceuticals in violation of the
Federal Food Drug and Cosmetic Act. It does not matter that D was not aware of what
was going on; the whole point of the act was to protect the public. He failed in his duty to
oversee and ensure the safe distribution of his products.

Morrisette v. U.S. (INTENT SATISFIED)

Morrisette violates gov't statute making it a crime to sell converted gov't property. It
didn't matter that he knew the gov't had abandoned the casings. He satisfied
the intent of the statute by deliberately seeking to sell the casings.

Staples v. U.S. (PUBLIC POLICY INTERST IN REGULATION STATUTES W/ STRICT LIABILITY)

Staples is convicted for possessing an automatic firearm in violation of a federal statute.
He claims he did not know that it was automatic. Lack of knowledge is
insufficient here and he is held strictly liable.

State v. Guminga (NO VICARIOUS LIABILITY WHEN DUE PROCESS OUTWEIGHS PUBLIC
INTEREST )
Waitress serves alcohol to a minor and is arrested for violating statute. Prosection wants
to hold Owner vicariously liable via respondeat superior. Court says it violates owner's
due process. While civil damages may be justified,Court refuses to impose

10
criminal sanctions (imprisonment) for an act he had no knowledge of, did not
commit, or give express or implied consent to the commission thereof. TO
REACH THIS DETERMINATION, COURT BALANCES PUBLIC POLICY
INTERESTS IN ENFORCING SL AGAINST DUE PROCESS OF THE OWNER. IN THIS CASE,
DUE PROCESS WINS OUT. THE FACT THAT IMPRISONMENT WAS AT STAKE IS THE
DECIDING ISSUE; IF FINES, LIKELY THAT SL UPHELD.

State v. Baker (INVOLUNTARY ACT DEFENSE TO A VOLUNTARY ACT OFFENSE)

Baker puts his cruise control in position and gets pulled over for speeding 75 mph in 55
mph zone. He claims that control device got stuck and that it was involuntary.
Court says his voluntary act in engaging the cruise control beyond the speed limit in
the first place is sufficient to satisfy the AR of the statute. Court refutes
argument that D "intended" not to engage the cruise control since MR is
irrelevant as this is a SL statute.
State v. Miller (Notes)
Guy drives car while intoxicated after someone slipped him alcohol. It doesn't
matter what his intent was; the fact that he satisfied the AR of the
statute by "driving while intoxicated" is sufficient for SL.

Regina v. Sault St. Marie(DILEMMA BTW STRICT LIABILITY AND FULL MENS REA)
Analyzes the debate between strict liability and Full Mens Rea in relation to statutory
violations. IT SUGGESTS A MIDDLE GROUND; WHERE AN OFFENSE DOES NOT REQUIRE
A FULL MENS REA, IT IS A GOOD DEFENSE FOR DEFENDANT TO PROVE THAT HE
WAS NOT NEGLIGENT. It finds no MENS REA unconstitutional. (See p. 263)

Chicago v. City of Morales (STATUTE UNCONSTITIONAL WHEN AR REQUIREMENT IS TOO VAGUE)

City of Chicago enacted the Gang Congregation Ordinance, which prohibits people from loitering
with one another in any public place. The question is whether the ordinance violates the Due
Process Clause of the Fourteenth Amendment. The Court held that the ordinance was
unconstitutionally vague. It did not provide sufficiently specific limits on the enforcement
discretion of the police (and so may encourage discriminatory or arbitrary enforcement), nor did
it provide sufficient notice to citizens who wish to use the public streets. THIS IS A STATUTE
THAT IS RIPE FOR ABUSE; LEAVES TOO MUCH DISCRETIONARY POWER TO POLICE AND
INFRINGES ON LIBERTIES. IF WE ARE GOING TO MAKE SOMETHING A STRICTLY LIABLE OFFENSE,
WE MUST SPECIFY WITH GREAT CLARITY WHAT THE AR SHOULD BE.

WAYS TO KILL SL:

1. Language too vague in describing AR.
2. Due Process interests outweigh public policy provision/concerns.
3. Punishment too severe for the lack of Mens Rea.

11
IV. HOMICIDE
MPC Definition:
Homicide 2.10.4: Person is guilty of homicide if he purposely, knowingly, recklessly, or
negligently causes the death of another human being. Criminal homicide is murder,
manslaughter or negligent homicide.

Murder 210.2 Homicide constitutes murder when (a) it is committed purposely or knowingly or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value
of human life.

Purpose - Must be a purpose to kill or cause grevious bodily harm.

Knowledge - A likely result of death from the action that is knowingly done.
Recklessness - Death resulting from a felony.

Common Law Definiton:

AR is the killing of another human being. Killing a child in the womb is not homicide. The
standard for death is brain death.

MR is Malice Aforethought. This is defined as a "depraved, abandoned and malignant heart"

The Malice Aforethought is a state of mind coexisting with an act or omission resulting in
homicide.

Malice Aforethought can encompass purpose, knowledge, or recklessness.

Different levels of MR in MPC establish different levels of bad intent. Although the harm might be the
same, the punishment will vary tremendously according to the Mens Rea.

The MR intent of the murderer is the most difficult thing to determine and it can vary a great deal

PREMEDITATION AND DELIBERATION

Pre-meditated murder is known in most jurisdictions as 1st Degree Murder. Such murder is
usuall willful, deliberate or premeditated. Other types of murder are 2nd Degree Murder and
carries a lesser sentence.

Commonwealth v. Carroll (EQUATES INTENTIONAL KILLING WITH PRE-MEDITATION)

Prosecution wants to convict on 1st Degree Murder. To do so, must shoow pre-
mediation. Defense argues no pre-mediation b/c not enough time to

12
form the intent between the fight and the pulling of the trigger. Court holds that if
killing was intentional, then it was pre-mediated and sufficient for 1st
Degree Murder.

Young v. State (PREMEDITATION CAN BE INSTANTANEOUS)

Pre-meditation/intent to kill can be formed as one is pulling the trigger.
State v. Guthrie( PRE-MEDITATION REQUIRES A PERIOD OF REFLECTION WHERE D
WEIGHS THE KILLING IN HIS MIND)
Guthrie had psychological problems and killed some of his co-workers after being
taunted at work. He is convicted of 1st Degree Murder. WVA Supreme Court
overrules and says this looks more like 2nd Degree Murder. 1st Degree Murder
requires more than mere intent; there must be a period, however brief, of reflection
before D continues with and commits the act. All other non-reflective
murder is 2nd degree murder.

Anderson (ILLUSTRATES WhAT CONSTITUES REFLECTION - WILF SAYS THIS DOESN"T

HOLD UP AND SHOWS THE DIFFICULTY IN USING CATEGORIES. CATEGORIES CAN
"RIP APART")
1. Prior Relationships
2. Manner of Killing (Explosion of Violence)
3. Subsequent Activities

PROVOCATION
A high Mens Rea is needed for Pre-Meditation, but a low Mens Rea will suffice for
provocation or manslaughter.

Provocation is a mitigating doctrine that lowers murder to manslaughter. We give

someone a lesser sentence for provocation because we don't wish to punish
people acting in the blind heat of the moment as severely as those who purposefully
kill.

5 Common Law Categories for Provocation

1. Assault
2. Mutual Quarrell
3. Illegal Arrest - Fear
4. Adultery with Actor's Spouse
5. Harm to a Close Relative

Most provocation centers around adultery and there is a temporal structure involved:
Heat of the Moment --------------- Cooling Off ------------------ Rekindling
IF THERE IS NO REKINDLING, THEN THERE IS PRE-MEDITATED MURDER AND PROVOCATION WILL NOT
APPLY.

13
MPC Provocation
Manslaughter
Reasonable explanation/excuse OBJECTIVE STANDARD
Viewpoint of Person SUBJECTIVE STANDARD

Manslaughter charge is more open-ended under MPC than CL.

In MPC, people do not get hot or cold but only smolder. The only get angrier and angrier as time
goes on. In CL, there can be a cooling off and re-kindling period.

MPC EXTREME EMOTIONAL DISTURBANCE

Significant mental trauma that caused D to brood for a long period of time and then react
violently, seemingly without provocation.

Provocation must be reasonable within the 5 categories.

Girouard v. State (WORDS ALONE NOT SUFFIECIENT TO ESTABLISH PROVOCATION; NEED

THREAT; CL)
D's wife taunts him and he kills her. He invokes provocation as mitigation, but court says he
cannot get it. Words can only constitute adequeate provocation when accompanied with
threats. Court doesn't want to create precedent of allowing provocation for common domestic
disputes.

Maher v. People (PROVOCATION NEGATES INTENT; CL)

Maher heard his wife was sleeping with Hunt. He finds Hunt in a bar and shoots him. Court says
it is possible for a jury to find provocation based on the facts. If so, it would negate intent.

Commonwealth v. LeClair (notes) (DOES NOT RECOGNIZE REKINDLING OF PRIOR

PROVOCATION)
Man suspects his wife has been cheating on him and he confirms his suspicions by
catching her in the act. Court says his prior suspicions provided adequate colling
time and no manslaughter instructions were allowed.
State v. Mauricio (notes) (NONPROVOKING VICITM WITH PROVOKING DEFENDANT

14
 Rex v. Scriva (notes)
People v. Spurlin (notes)
Regina v. Johnson (notes)

People v. Casassa (ILLUSTRATES MPC DEFINITION OF EXTREME EMOTIONAL

DISTURBANCE)
Cassasa dates a girl. Shortly afterward, she breaks it off. He kills her after she
rejects his advances. He argues that her rejection created an extreme
emotional disturbances in him that serves as a defense for murder. This is an
affirmative defense under MPC. Court does not grant him the defense. Court says he was acting
under disturbance but that it was an unreasonable emotional disturbance triggered by rejection.
Such a disturbance does not justify the mitigation.

Model Penal Code on Provocation (notes)

D MUST ACT UNDER THE INFLUENCE OF EXTREME EMOTIONAL DISTURBANCE FOR WHICH
THERE IS REASONABLE EXPLANATION OR EXCUSE. THIS IS DETERMINED FROM THE VIEWPOINT
OF SOMEONE IN THE ACTOR'S SITUATION UNDER THE CIRCUMSTANCES AS HE BELIEVES
THEM TO BE.

Thornton v. State (MPC SMOLDERING ILLUSTRATION)

Thornton finds wife having sex with other man and kills him. The court says that it has
always been legally recognized that a killing conducted under the influence of intense passion
will result in a charge of manslaughter absent of any evidence of malice. The fact that
Thornton discovered his wife having unlawful sexual intercourse with another man would be
sufficient to provoke such passion and justify a charge of manslaughter. However, the court is
also quick to point out that if sufficient time had passed for the passion or emotion of the
defendant to cool before the shooting, then a verdict of murder might still be sustained. In
the court's opinion, there was no such showing in the case at bar. The court also says that
a defendant acting under such temporary mental stress would be presumed to be incapable of
malice and therefore an adequately aroused passion would obscure any underlying
reason the defendant may have maintained to perform the killing.

UNINTENTIONAL HOMICIDE
In some circumstances, when someone is under real stress, real provocation may justify
manslaughter.

Manslaughter lies at some point between Criminal Negligence and Provocation. We

must figure out what the boundaries are to apply

15
 CRIMINAL NEGLIGENCE
Commonwealth v. Welansky (COMMON LAW DISTINCTION BETWEEN CIVIL AND
CRIMINAL NEG.)
Welansky owned a night club and a fire was accidentally started by a bartender while
Welanksy was in the hospital. Many partrons in the club died as a result of poorly
marked and blocked fire exits. He is convicted of involuntary manslaughter which requires the
commission/omission of a RECKLESS ACT. He had substantial knowledge of a known risk and did
nothing about it. Had his actions been done intentionally, he would have been guilty of
voluntary manslaughter. CONDUCT BECOMES CRIMINAL ONCE IT PASSES THE BORDERS OF
NEGLIGENCE AND GROSS NEGLIGENCE AND ENTERS THE DOMAIN OF WANTON OR RECKLESS
CONDUCT. Problem with case is that line between negligence and recklessness is vague.

CL for Criminal Negligence:

WANTON and RECKLESS conduct

MPC for Unintentional Homicide:

2 Crimes: Manslaughter and the lesser Negligent Homicide
Manslaughter - MR is Recklesness "Actor consciously disregards a substantial and
justifiable risk that his conduct would cause the death of another, and if the risk was of
such a nature and degree that considering the nature and purpose of his conduct and
the circumstances known t ohim, its disregard involves a gross deviation from the
standard of conduct that a law abiding person would observe in the actor's situation

Neg. Homicide - MR When a person should have been aware of the risk and his failure
to perceive it considering the nature and purpose of his conduct and the circumstances
known to him involves a gross deviation from the standard of care that a reasonable
person would observe in the actor's situation.

PEOPLE v. HALL (ILLUSTRATES MODEL PENAL CODE)

Hall, a skilled skier, engages in some risky skiing causing him to collide with and kill
another skier. Court says this is manslaughter . There is already a statutory duty for a
skier to avoid collisions with other people. Court says that this coupled with the fact that
he was a trained skier who had been coached about skiing in control and skiing safely
and was an employee on the slopes could give rise to the reasonable inference that he
was aware of the possibility that by skiing so fast and out of control he might collide
with and kill another skier unless he regained control and slowed down.
1. Did Hall's conduct create a substantial and unjustifiable riske of death?
Yes, he skied in a reckless fashion rather than by exerting control. His excessive speed,
lack of control, and improper technique significantly increased the likelihood that a
collision would occur.
2. Was the creation of that risk unjustified?
Yes, Hall's action served no direct interest other than his own enjoyment. A reasonable
person could determine that enjoyment of skiing does not justify the high speed.
3. Did Hall's conduct constitute a gross deviation from the standard of care that a

16
 reasonable person (SUBJECTIVE STANDARD - a reasonable, law-abiding, trained ski racer
and resort employee) would have observed in the circumstances?
Court says yes, his conduct grossly deviated.
JURY LATER FINDS THAT HIS CONDUCT CONSTITUTED NEG. HOMICIDE. FACTS SUGGEST
THAT HE REALLY WASN'T AWARE THAT HIS CONDUCT WOULD RESULT IN DEATH.

STATE v. WILLIAMS (SIMPLE NEGLIGENCE AS STANDARD for MS INSTEAD OF GROSS

NEG.)
A Native American couple does not bring their ill child to see the doctor and the infant
dies from complications. They thought it was only a minor ailment that did not require medical
attention and were fearful that if they went to the doctor, the child would be taken away. The
court finds that the defendants were put on notice that the baby was sick before it was too late
to save the baby by taking him to a doctor. The court does not accept the excuse of the
defendants that they thought if they took the baby to a doctor he would be taken away by the
welfare department. Therefore, the court finds there was enough evidence to find that the
parents committed simple negligence. THE KEY HERE IS WEATHER OR NOT D'S REALIZED OR DID
NOT REALIZE THE RISK OF THEIR CONDUCT. MANSLAUGHTER BASED ON AN OMISSION OF
FAILING TO SEEK MEDICAL ATTENTION.

COMMONWEALTH v. MALONE (DISTINGUISHING MURDER FROM MANSLAUGHTER) (CL

CONTEXT)
Malone (17 years old) found a gun. He put one bullet in the chamber and asked his friend Long
(13 years old) if they could play Russian Roulette. Malone pulled the trigger 3 times. The third
chamber held the bullet. Malone was arrested and charged with murder.

o The Trial Court found Malone guilty of second-degree murder and sentenced him to 5-10
years in prison. He appealed. The Pennsylvania Supreme Court upheld the sentence. The
Pennsylvania Supreme Court found that Malone intentionally performed an act that had
a very high chance of causing death. He did this with reckless disregard for the possible
[Link] Court found that such intentional doing of such an uncalled-for act in
callous disregard of the consequences was enough to show malice and thus sustain a
charge of second-degree murder. Some would call Malone's actions depraved
indifference or extreme indifference.

COMMON LAW DISTINGUISHES MANSLAUGHTER FROM MURDER ON HOW WICKED

AND DEPRAVED THE KILLING SEEMED TO BE. THE GREATER WICKEDNESS AND
DEPRAVITY, THE GREATHER THE CHANCE FOR A CONVICTION OF MURDER.

UNITED STATES v. FLEMING (MALICE AFORETHOUGHT FOR MURDER CAN BE PROVEN

ESTABLISHED BY RECKLESS AND WANTON AND AGROSS DEVIATIOON FROM A
REASONABLE STANDARD OF CARE)
Guy gets drunk and drives his car recklessly including veering over to the opposite side
of a highway and driving into oncoming traffic while doing 100 mph in a 45 mph zone.
Court says this is malice and not negligence b/c Malone purposefully drove in such a
manner as to cause bodily harm wheras in most intoxicated driving cases, a death
results because of severe impairment in driving ability without the actor's purposeful
intent of causing harm.

17
 FELONY MURDER
Felony Murder does away with the Mens Rea element of murder when a death is
caused in furtherance of a felony. WE NEED TO PROVE THE UNDERLYING FELONY AND A
DEATH PROXIMATELY CAUSED BY THE FELONY WE GET THE CONVICTION. FM OCCURS
WHEN DEATH IN COMMISSION OR FUTHREANCE OF THE FELONY OCCURS.
Death can be:
1. Accidental
2. Intentional
3. Incidental
4. Death of a Cofelon

THIS IS A COMMON LAW DOCTRINE; THERE IS NO MPC PROVISION FOR FELONY

MURDER ALTHOUGH SOME JURISDICTIONS HAVE RETAINED IT.

How should we curb FM considering it is a disfavored doctrine?

1. Abandon the Rule entirely
2. Create per se limitations only for specific felonies
3. Make it procedural rather than a code.

4 LIMITATIONS ON WHEN FELONY MURDER CAN BE INVOKED:

1. The Felony committed must be inherently dangerous in the abstract.
2. Death must be cause as a result of the felonious conduct.
3. Felony must be made independent of the homicide.
4. Homicide must be committed in furtherance of the felony.

REGINA v. SERNE (LESS STRICT INTERPRETATION OF FELONY MURDER)

Guy burns house down intentionally to collect insurance money. Some children die in
the fire. He gets convicted of Felony Murder for the deaths of the children absent any
proof of intent that he wanted to kill them. The judge in this case narrowed the
definition to include only acts that are known to be dangerous or likely to cause
death. REQUIRES THAT THE FATAL ACT BE DONE WITH INTENT TO
COMMIT THE FELONY AND ALSO THAT THE ACT BE KNOWN TO BE
DANGEROUS AND LIKELY IN ITSELF TO CAUSE DEATH.

 PEOPLE v. STAMP (STRCT INTERPRETATION OF FELONY MURDER)

A man dies from a heart attack induced by fright from felons robbing a bank.
Court upholds felony murder conviction and says FM is not limited to those
deaths which are forseeable occurrences of the felony. A felon is held
STRICTLYLIABLE for all killings committed by him or his accomplices in the
course of the felony.

Rationale for FM is allowing a MR for a lesser offense (the felony) substitute for
the MR of a greater offense (the murder).

THE INHERENTLY DANGEROUS FELONY LIMITATIONPEOPLE v.

PHILLIPS (CALIFORNIA)
Doctor commits felony of grand theft and child dies because they rely on his

18
 medical advice to not remove a cancer of the eye. Court says felony murder
cannot be applied in this situation because grand theft, in the abstract, is not
inherently dangerous and therefore cannot trigger FM. COURT DOES NOT
CARE ABOUT THE ACTUAL FACTS HERE. THE COURT ABSTRACTS
AWAY FROM THE FACTS AND ASKS IF THE UNDERLYING FELONY IS
INHERENTLY DANGEROUS TO HUMAN LIFE IN THE ABSTRACT.

PEOPLE v. STEWART ( APPLICATION OF INHERENTLY DANGEROUS

AS COMMITTED) (RHODE ISLAND)
Stewart's child was killed as a result of neglect by the mother who underwent a
crack binge. She was guilty of the felony of wrongfully allowing her child to be
an inherent sufferer. Is this an inherently dangerous to human life felony? Court
does not want to apply the inherently dangerous in the abstract test but instead
wants to see if felony was inherently dangerous to human life in the context of the
facts and circumstances of the particular case. Court says it is inherentlydangerous
to human life in these circumstances and mother is found guilty of felony murder.

HINES v. STATE (FORESEEABLE DEATH FROM THE

FELONY AND SUBSEQUENT ACTION) (GEORGIA)
Hines mistakes his friend for a turkey and shoots him dead. He is
charged with Felony Murder on the grounds that he was in
possession of a firearm as a convicted felon. Court
upholds the conviction and looks at the felony and
subsequent action to see if there was a forseeable risk of death and
determined there was. Hines had been drinking and knew there
were other hunters in the area. He took an unsafe shot at
dusk at something that he did not know was a turkey from a
distance of eighty feet.

HINES IS THE PREVAILING APPROACH FOR FELONY MURDER. IT

LOOKS AT THE WAY THE FELONY WAS COMMITTED AND ASKS
WEATHER THE WAY IN WHICH THE FELONY WAS COMMITTED
CREATED A FORSEEABLE RISK of DEATH.

PEOPLE v. BURTON (MERGER DOCTRINE)

o The Court differentiated crimes where the intent is to hurt someone (e.g.
assault), from crimes where the intent is to do something else (e.g. get their
money). The Court found that in cases where the purpose of the crime was the
infliction of bodily injury, felony murder should not be considered separately.
However, in cases where the main purpose of the crime was not the infliction of
bodily injury (like robbery), then an unintentional death can result in a felony
murder charge.
 The merger doctrine says that certain violent felonies already include the
possibility of a killing in their definitions and sentencing guidelines. Therefore, it

19
 is unfair to use them as the underlying (aka predicate) felony for a felony murder
charge. However, the merger rule is generally limited to felonies that are not
'independent' of the killing. Basically, that's just assault.

KILLINGS NOT "IN FURTHERANCE OF" THE FELONY AND THUS NO

FM:
1. When the lethal act occurs after the felony has terminated.
2. When cofelon causes a death by an act unconnected to the felony while off on
a frolic of his own.
3. When the act leading to death is caused by a police officer kills a cofelon or
innocent bystander.

KILLINGS BY NONFELONS
STATE v. CANOLA (AGENCY THEORY; FM KICKS IN ONLY WHEN F or
CO F COMMITS THE KILLING)
Canola is charged with felony murder when the jewelry store owner shoots and
kills one of Canola's co-felons during a robbery. A felon cannot be
charged with the murder of a co-felon caused by "the act of one other than the
felon himself or those associated with him in the unlawful enterprise."

CANOLA illustrates the agency theory where FM kicks in only when F or co-F
commits the killing. In contrast, the PROXIMATE CAUSE theory central
issue is weather the killing, no matter by whose hand, is within the forseeable risk
of the commission of the felony. Therefore, it is likely that Canola would have
been convicted under the proximate cause theory.

The AGENCY THEORY used to be favored, but more and more jurisdictions are
adopting the Proximate Cause theory as well.

MPC and IMPLIED MALICE: 2.03

If one of the participants in a robbery shoots at a policeman with intent to kill and
provokes a return of fire by that officer that kills a bystander, the robber
who initiates the gunfire could be charged with purposeful murder.

V. CAUSATION

BASIC CONCEPTS
Sometimes it is difficult to tell if a defendant's act actually caused the result.
HOMICIDE CASES ARE THE MOST FERTILE SOURCE OF

20
CAUSATION PROBLEMS. When the intended death occurs in a way not
intended or the unintended death occurs in an unlikely way, the law needs
to distinguish variations that preclude liability from variations that do not
preclude liability.

Forseeability and Coincidence

PEOPLE v. ACOSTA
Facts: Cops saw Acosta in stolen Nissan parked in street and approached him.
Acosta fled in car and led police on crazy car chase, breaking all sorts of
traffic laws. Police helicopters joined pursuit. One helicopter had terminated
radio communication, came up under another helicopter from the right rear and
collided with it. Both helicopters fell to ground and three occupants in one
helicopter died as result of crash. Turner, retired FAA investigator, said
accident happened because one helicopter violated FAA regulation prohibiting
careless and reckless operation of aircraft. Giving the circumstances, a finding of
proximate cause is appropriate. Not enough evidence to show that Acosta
consciously disregarded risk to helicopter pilots. Court found that there was
a causation element. However, there was no murderous mens rea so they could not
convict-different requirement for mens rea than for foreseeability-
punishing someone for bad thoughts: bad for people on the ground but not
in the air.

1. Reasons for Causation requirements- Two people A and B each shoot at victims X and Y; as soon as
A shoots X, overcome w/ remorse and tries to save him, but X dies anyway; B shoots Y and is happy
about it, but Y somehow lives; A convicted of capital murder and executed; B is not; What explains
difference?
1. Revenge- Society’s desire for vengeance, esp in death cases, will be greater.
2. Retributivism- One of retributivist (non-Kantian) purposes of punishment is to
channel society’s natural desire for revenge.
3. Can argue no deterrent or rehabilitative purpose for Δ; maybe deterrence for revenge
among victim’s family;
4. Reparation- kind of reparation for victim or victim’s family; should this be left to
tort?
2. Three categories of causation problems that often arise:
1. Exceptional victim- unusually susceptible; “egg-shell” skull problem; ex) punch
someone w/ hemophilia; Common law says take victim as you find him. MPC
asks if consciously aware of risk (recklessness) or should have known but didn’t
(negligence).
2. Unintended results- intend harm to victim, but extent or way of harm different; ex)
hit different victim, or shoot at victim and miss but victim has heart attack and
dies; Common law says take victim as you find him. MPC asks actual injury
represents same kind of injury or harm as probable result or as that designed or contemplated
in MPC §2.03 (r1083)
3. Intervening acts and events- (1) natural event, like lightening or (2) third party event;
set house on fire and victims run outside and struck by lightening; shoot
someone and dies at hospital b/c of malpractice (3) victim causes own death, i.e.

21
 refuses care, etc; Common law asks whether new and intervening cause or
whether natural and probable consequence of ∆’s action. MPC asks about
remoteness of harm, forseeability by ∆.
Proxiamte cause means that act, in addition to being but-for cause, must bear sufficiently close
relationship to resulting harm. MPC 2.03(1)(a).
People v. Arzon (NY Supreme, 1978, 514-516)
Class notes on Arzon: what does Arzon’s fire do-brings fireman into the see but the other fire kills
him. Why isn’t the second fire intervening act-
But-for: but for the first fire, the fireman would not have shown up
Proximate cause: it was foreseeable because starting a fire usually brings firemen, fire places
victim in high risk situation. Intervening Act: there isn’t one, continuum of danger (zone of
danger).
Facts: Defendant set fire to couth, causing serious fire on 5th floor of abandoned building. NYC
Fire Department responded to fire. Couldn’t bring situation under control so tried to leave. Were
enveloped in thick fog, from another independent fire on 2nd floor. Although fire determined to
have originated in arson, no evidence implicating defendant in its responsibility. One fireman
sustained injuries from fog and died.
Procedural Process: defendant indicted for two counts of murder on 2nd degree and arson in 3rd
degree. Defendant says evidence insufficient to support 1st two counts-murder requires causal
link between underlying crime and death, connection which, in defendant’s view, is here
lacking..
Decision: defendant’s motion to dismiss murder counts denied
Hold: harm reasonably foreseeable to defendant
Reasoning: Prosecutor must prove defendant’s conduct actual cause of death, in sense that it
forged link in chain of causes which actually brought about death. Defendant’s conduct need not
be sole and exclusive factor of victim’s death. Criminally liable if conduct was sufficiently direct
cause of death, and ultimate harm something which should have been foreseen as being
reasonably related to his acts. Certainly, foreseeable that firemen would respond to situation, thus
exposing them, along with persons already in vicinity, to life-threatening danger.
People v. Warner-Lambert (NY Court of Appeals, 1980, 516-517)
Class Notes on Warner: warning not sufficient to inform owners that explosion was likely. Warning
not critical here-what is critical is a sense of how this explosion could have happened and the
prosecution fails to show this.
MPC 2.03 (Pg. 1083)- Casual relationship between conduct and result; diverge between result designed or
contemplated and actual result or between probable and actual result. Connect conduct and result. Its
whatever the law says it is-not necessary saying what causation is. Don’t have precise causal
definitions-MPC avoiding defining it.
Facts: Several corporation employees killed in massive explosion at gum factory. Evidence
showed that corporation used two potentially explosive substances in manufacturing process.
Defendants had been warned by insurance carrier that stuff could create explosion hazards. No
hard proof that sparks from machine triggered explosion or liquid nitrogen.
Procedural Process: corporation and employees indicted for 2nd degree manslaughter. Court held
that evidence before grand jury not legally sufficient to establish foreseeability of immediate,
triggering cause of explosion and therefore dismissed indictment.
Issue: whether defendants should be held criminally liable for manslaughter
Decision: affirm lower court

22
Hold: occasion of death not reasonably to have been foreseen when defendants abandoned victim.
Reasoning: Court subscribes to requirement that defendants’ actions must be sufficiently direct
cause of ensuing death before there can be any imposition of criminal liability, and recognize, of
course, that this standard is greater than that required as basis for tort liability.
3. MPC on Causation §2.03 (Pp1083)- Rare b/c staircases by mens rea
1. (1) Conduct must be antecedent of result—“but for” is necessary but not
independently sufficient condition; AND
2. (2) When purposes or knowledge an element of offense, element not est if actual
result not w/in purpose or contemplation of actor unless:
i. differs only in target person or property or designed harm is more serious
than actual harm (transferred intent) OR
ii. actual result involves same kind of injury or harm as designed or
contemplated and not too remote or accidental to have just bearing on liability
3. (3) Same substandard as above for reckless (transferred mens rea + actual result
w/in risk of which consciously aware) or negligence (transferred mens rea +
actual result one of which should have been aware, i.e. equal to or less severe
than probable harm)
4. (4) When causing result is material element of crime for which law imposes strict
liability, element not est unless actual result is probable consequence of actor’s
conduct.
MPC 2.03(2)(a) provides that wehre crime requires that defendant intentionally cause particular
result, that element of crime satisfied if defendant accidently causes that result to one person
while intentionally trying to cause it to another.
People v. Campbell (Mich Court of Appeals, 1983, 523-524)
Facts: Campbell, angry with victim for banging wife, encourages him to kill himself while victim
drinking heavily. Provides victim with gun and bullets. Victim kills himself.
Procedural Process: Campbell charged with murder. Circuit court denied Campell’s motion to
dismiss info.
Decision: reverse trial court and case remanded with instructions to quash info and warrant and
discharge defendant
Hold: term suicide excludes by definition homicide-defendant did not kill another person
Reasoning: defendant did not actually kill victim. Defendant had not present intention to kill.
Provided weapon and departed. Defendant hoped victim would kill himself but hope alone not
the degree of intention requisite to charge of murder. Intervening act is a conscious move by
Bansaw to kill himself. Suicide not a natural consequence of drinking a lot. No actus reus on part
of Campbell
People v. Kevorkian (Mich Supreme, 1994, 524-526)
Class Notes on Kevorkian: need control of the person-convince them to commit suicide
Facts: victims suffering from condition of great pain and or severe disability. Defendant provided
means to commit suicide and help the victims do so. One with a needle and the other with a gas
mask that had carbon monoxide gas.
Procedural Process: defendant indicted on two counts of murder. Circuit judge dismissed charges,
concluding that assisting suicide does not fall within crime of murder. Court of appeals
concluded that circuit court erred in quashing info. Defendant appealed to Mich Supreme.
Decision: Remand matter to circuit court for reconsideration of defendant’s motion to quash in
light of principles discussed in opinion

23
Hold: Lower courts did not have benefit of analysis set forth in opinion for evaluating degree
participation by defendant in events leading to deaths of women.
Reasoning: Conviction of murder proper if defendant participates in final overt act that causes
death, such as firing gun or punishing plunger on a hypodermic needle (but not) where defendant
involved in merely in events leading up to commission of final overt act, such as furnishing the
means. Only where there is probable cause to believe that death was direct and natural result of
defendant’s act can defendant be properly bound over on charge of murder.
Notes on Assisted Suicide
2. Current law- Campbell and Kevorkain cases reflect generally prevailing American law: one who
successfully urges or assists another to commit suicide not guilty of murder, at least as long as
deceased mentally responsible and was not forced, deceived, or otherwise subject to pressures
that rendered his action partly involuntary. Most states also reject possibility of manslaughter or
negligent homicide conviction, provided again that deceased’s actions were fully voluntary.
4. Stephenson v. State and CL causation (Indy Supreme, 1932, 530-533)
1. Facts- Δ Stephenson assaulted and tried to rape decedent Madge on a train. They
then struck, bit and beat her. They forced her off the train in Hammond where
they checked into a hotel room. Madge, struck with shame, asked for permission
and money to go out to buy a hat. The chauffeur accompanied her to buy a hat
and to the drug store where she bought some mercury tablets. Upon returning to
her hotel room, she took the poison. Δ had her drink a bottle of milk, and
suggested she go to a hospital, but she refused. Δ then drove her home. Her
parents called a doctor. But as a result of her wounds, the poison, and her refusal
to eat, she died 10 days later. Δ was charged with murder.
2. Rule- Upheld murder convicted b/c rendered Δ an “irresponsible actor” (emotional
disturbance, shame of rape, fear, necessity b/c no hope of escape) and b/c “natural
and probable consequence” of his actions (related to foreseeability in Decina; but does
it make sense that less responsible less foreseeable?; could have used
omissions doctrine (sequestered, didn’t go to hospital); two reasons for
conviction independently sufficient
3. Ct says like Valade (girl jumped from window of hotel to escape attacker), not like
Preslar (where women slept outside after beaten by husband w/o “necessity”)
Procedural Process: defendant charged with murder. Jury found defendant guilty of 2nd degree
murder and he appealed.
Decision: uphold conviction
Hold: evidence sufficient and justified jury in finding appellant by his acts and conduct rendered
deceased distracted and mentally irresponsible, and that such was natural and probable
consequence of such unlawful and criminal treatment, and that appellant was guilty of murder in
2nd degree as charged in first count of indictment.
Commonwealth v. Root (supreme court of Penn, 1961, 538-540)
Facts: defendant accepted decedent’s challenge to drag race. During race, deceased tried to pass
defendant, when truck closely approaching from opposite direction, caused deceased to swerve
car to left, cross highway’s white dividing line and drove car on wrong side of highway head-on
into oncoming truck with fatal effect
Procedural Process: defendant found guilty of involuntary manslaughter.
Decision: reverse lower court
Holding: Defendant’s conduct was not sufficiently direct cause of competing driver’s death to
make him criminally liable therefore.

24
Reasoning:deceased aware of dangerous condition created by defendant’s reckless conduct but
recklessly chose to swerve car to left and into path of oncoming truck. Unlawful or reckless
conduct present in this case. But that unlawful conduct was not direct cause of death in issue.

STATE v. MCFADDEN (PROXIMATE CAUSE IS APPROPRIATE STANDARD)

Defendant was drag racing against Sulgrove, when Sulgrove lost control of his vehicle, and
crashed into the vehicle of an innocent third party. A child passenger in the third car and
Sulgrove were both killed in the accident. Although he did not directly cause the accident,
defendant was convicted of involuntary manslaughter. The fact that a victim of a drag racing
accident was a participant in the race does not bar another participant from being convicted of
involuntary manslaughter. Ordinary proximate cause principles should be used to determine
causation in a criminal prosecution; a "direct casual connection" need not be shown.

COMMONWEALTH v. ATENCIO (HIGHER STANDARD OF DIRECT CAUSAL

CONNECTION REQUIRED)
Defendants played a game of "russian roulette" with the decedent. Each defendant took a turn
spinning the barrel and pulling the trigger while pointing the gun at their head, but the gun did
not fire. When the decedent did the same, the gun fired, and he died. Defendants were
both charged with involuntary manslaughter. Wanton or reckless conduct, giving rise to a charge of
manslaughter, can "be found in the concerted action and cooperation of [others] in helping to
bring about [a person's] foolish act."; Persons who participate in a game of "russian roulette"
can be convicted of manslaughter for the death of one of them.

MPC STANDARD 2.03

An actor is responsible for a result when his action is a but-for antecendent if it involves the
same kind of harm he intended or risked so long as it is "not too remote or accidental in its
occurrence to have a just bearing on the actor's liability or on the gravity of his offense."

VI. ATTEMPT
BASIC CONCEPTS
ATTEMPT constitutes a strong mens rea, a weak actus reus and a weak resultant harm.

WHY DO WE PUNISH ATTEMPT?

Retributive
Specific Deterrance
General Deterrance
Incapacitation

MOST JURISDICTIONS PUNISH ATTEMPT LESS THAN A COMPLETED CRIME.

25
 THE QUESTION IS, AT WHAT POINT DOES SOMEONE'S ACTIONS CONSTITUTE SUFFICIENT
GROUNDS TO ARREST THEM FOR ATTEMPT TO COMMIT A CRIME?

COMMONWEALTH v. PEASELEE (COMMON LAW ANALYSIS FOR ATTEMPT)

Peaselee is arrested for attempted arson to burn a building on oreder to secure
insurance proceeds. He is found guilty of attempted Arson. Court institutes a
test to determine when someone can be arrested for attempt. PEASLEE COMMON LAW
TEST.

Conceives of Idea Places Combustibles Meets Young Man Young Man Refuses Go to House

At what point can we arrest Peaslee?

If we arrest him at the first step of buying matches, it seems too remote. On the other hand, if we wait
to arrest him when he strikes the match allows us to get too close to completion to be realistic. There is
also too much burden on the police for apprehension.

A third test might be a RES IPSA test that gives us an unequivocal step where we know D intends to
commit the crime. In this case, it would be when he solicits the young man to burn the house for him.

Peaslee Test:
1. What is the nearness of the danger?
2. What is the greatness of the harm?
3. What is the anxiety felt/degree of apprehension?

We must look at the sequence of events as if we are watching a film and determine at what point the
chills go up the spine. When we are near the danger, what is the degree of apprehension that is felt?

More often than not, we have to look at D's actions to determine what he is up to. YOU MUST
CLOSE YOUR EYES TO DETERMINE WHEN THERE IS A FEELING OF APPREHENSION AND
[Link] Rea for Attempt
SMALLWOOD v. STATE (ATTEMPT REQUIRES A SPECIFIC INTENT MENS REA)
Defendant raped several women. He was aware that he was HIV positive and nevertheless did
not use a condom, despite being warned by his social worker that he could contiminate his
partners if he had unprotected sex with [Link] says that he cannot be convicted of
Attempted murder requires because he lacked the specific intent to kill.

Analysis:
No evidence of specific intent for the required MR (he wanted to commit rape and armed
robbery; not murder.)
D's actions may satisfy the AR.

How come we cannot prosecute him for crim. Neg.?

26
B/c he knows that he has HIV. Had he lied to his victim about not having HIV, there could be
grounds for attempted murder.

REMEMBER, IMPOSSIBLE TO PROSECUTE FOR ATTEMPTED MANSLAUGHETR OR ATTEMPTED

FELONY MURDER B/C THE MR FOR THOSE CRIMES IS SUBSTANTIALLY LOWER.

Thacker v. Commonwealth (notes)

We may have a battery charge in this case. There is no specific intent to commit murder and
thus no attempt charge here. If anything, we could file a claim for manslaughter or reckless
endangerment.

PREPERATION vs. ATTEMPT

KING v. BARKER
Basically syas that attempt lies somewhere in the spectrum after the first step but before the
final one.

PEOPLE v. RIZZO (APPLICATION OF PEASELEE)

Men drive around in a car with the intent to commit robbery. They were to rob a man named
Rao, but the police arrested them when they jumped out of the car and ran into the bank. Court
says this was insufficient for prosecution to prevail on an attempt claim. The court considers
only those acts tending to the commission of the crime which are so near to its accomplishment
that in all reasonable probability the crime itself would have been committed but for timely
intereference. The court says this requirement is not met in this instance because the Ds were n
not near enough to the target Rao to satisfy the requirement. Indeed, they had no idea where
he was. WILF DOES NOT AGREE WITH THIS DECISION. HE THINKS THE APPREHENSION AND
ANXIETY GENERATED BY THE MEN DRIVING AROUND THE CITY LOOKING FOR THE MAN TO ROB
IS THE PEAK OF THE ANXIETY AND NEARNESS TO DANGER AS ARTICULATED IN PEASLEE.

McQuirter
Wilf says this case was actually ruled correctly under Peaselee. This suggests that there is
something inherently wrong with Peasly. Obviously, the Alabama Court was racist towards the
black defendant.

UNITED STATES v. JACKSON (MPC APPROACH TO ATTEMPT; ONLY REQUIRES A SUBSTANTIAL

STEP BE COMPLETED TO SATISFY THE ATTEMPT THRESHOLD)
Defendants conspired to rob a bank. They had formed a plan to rob the bank a week prior to
their arrest, but decided to try it the following week after scouting the bank. After one of the
conspirators was arrested on separate charges and told the police of the plan, the remaining

27
 conspirators were arrested while driving towards the bank on the morning they were going to
attempt the robbery. Their car had a fake license plate, and it contained a suitcase, two
shotguns, a revolver, handcuffs, and masks. To be guilty of an attempt, "First, the defendant
must have been acting with the kind of culpability otherwise required for the commission of the
crime which he is charged with attempting... Second, the defendant must have engaged in
conduct which constitutes a substantial step toward commission of the crime. A substantial step
must be conduct strongly corroborative of the firmness of the defendant's criminal intent."

MPC ATTEMPT 5.05:

The act or omission must constitute a substantial step towadrs the commission of the act to be
sufficient for satisfying the attempt requirement.
-In Peaslee, the substantial step would be the placing of the combustibles.
-Substantial step must strongly corroborate the criminal attempt.
-MPC thus looks for for attempt much earlier than the Common Law does.
-No substantial step in McQuirter.
-MPC requires a strong MR showing.

ACTIONS THAT CONSTITUTE A SUBSTANTIAL STEP IN MPC:

1. Lying in Wait
2. Enticement or seeking to entice.
3. Staking out the crime scene beforehand.
4. Solicitation of an innocent agent.
COMMON LAW
Dangerous proximity approach - how near is the danger and how great is the apprehension? To figure
this out, we construct an ordinary observer who watches a "film"

ABANDONMENT/SOLICITATION
An abandonment whithers the Actus Reus and withers the intent
COMMON LAW ABANDONMENT STANDARD;
COMMON LAW DOES NOTRECOGNIZE ABANDONMENT
MPC ABANDONMENT
Manifesting complete and voluntary renunciation of a criminal purpose.

The difficulty in determining attempt is determining what is voluntary. What if D gets talked out of doing
something?

PROBLEMS WITH PEASELEE ATTEMPT

Applied correctly in McQuirter and resulted in an unjust outcome. Too much potential problems with
the cultural context.

PROBLEMS WITH MPC ATTEMPT

28
1. Drives more towards intent/MR rather than the actual act. Thus, we may be punishing criminal
thoughts moreso than criminal acts.
2. There is an earlier intervention. We therefore punish when the attempt could still be in the
preparation stages well removed from the nearness of the crime.

SOLICITATION
No CL solicitation to commit an attempt. It is not recognized.
MPC allows solitication for attempt so long as solicitation constituted a substantial step towards the
completion of the crime.

SOLiCITATION IS A CRIME IN ITS OWN RIgHT

STATE V. DAVIS (COMMON LAW; SOLICITIATION NOT CONSTITUTING ATTEMPT)

Man hires an undercover cop to kill his wife. Court syas Davis cannot be guilty of attempted murder
because he solicited a cop who never intended to perform the prohibited act. The solicitiation was
never accompanied by an overt act towards the committing of the crime; it was nothing more than a
mere preparation.

UNITED STATES v. CHURCH (SOLICITATION AS ATTEMPT UNDER MPC)

Church hires a cop posing as a hitman to murder his wife. He gives him detailed plans, a map, and a the
his wife's schedule for the day. Court says this constitutes a "substantial step" towards the commission
of the crime even though the cop would never attempt the actual act.

IMPOSSIBLITY
2 Types: Impossibility of Law and Impossiblity of Fact
COMMON LAW: Recognizes Legal Impossibility, but not Factual Impossiblity.
MPC: Abolishes both Legal Impossibiity and Factual Impossibility
Seeks to punish the criminal and criminal mind; makes no distinction that actual commission was
impossible.
Person guilty of attempt when, if he believes the circumstances as he sees them, he intends to commit
the crime and carries out the action to effectuate it.

PEOPLE v. JAFFE
D is convicted for attempting to commit stolen goods. He intended to steal them and did so by
purchasing them. However, the goods were never stolen but lawfully sold. He cannot be convicted for
attempt despite his criminal mens rea because of the legal status of the goods; they were never stolen.
This would create an impossibility of law.

DLUGASH

29
D is convicted of attempted murder even though it was likely that the main he shot was already dead.
Legal Impossibility not appliciable here b/c it is abolished by MPC. A PERSON IS GUILTY OF ATTEMPT
WHEN HE INTENDS TO COMMIT THE CRIM AND ENGAGES IN CONDUCT THAT TENDS TO EFFECTUATE
THE COMMISSION OF THE CRIME. IT IS NO DEFENSE THAT THE CRIME WAS FACTUALLY OR LEGALLY
IMPOSSIBLE UNDER THE CIRCUMSTANCES.

 ACCOMPLICE LIABILITY
MPC
AR is encouraging or assisting the principal (PURPOSEFUL)
MR is one must intend his action to further the criminal action of the principal.

MENS REA

HICKS v. U.S.
Hicks is charged with being an accomplice to murder. He is present, laughs at the victim and says
"take off your hat and die like a man" and rides off with the shooter after the killing. The
problem is that Hick's language is directed towards the victim and not the shooter. There is also
ambiguity about his language. Court remands back to jury.

IF HICKS WERE MERELY A SPECTATOR, NO ACCOMPLICE LIABILITY

IF HE SHOUTED WORDS OF ENCOURAGEMENT TO THE SHOOTER, THEN LIKELY AL

STATE v. GLADSTONE
Gladstone is accused of aiding and abetting Thomsposn in selling drugs. Thompson asks
Gladstone to draw a map to get to Kent to sell drugs. All Gladstone does is draw the map, but he
offers no words or gestures of encouragement. Court says there is insufficient evidence to
establish a nexus between Gladstone and Thompson.

LUPARELLO
Luparello sends his associates out to get information from someone about the whereabouts of
his girl. One of the men shoots and kills the man instead. Court says Luparello is liable for second
degree murder. Under MPC standard, this would not happen, but court says this is a forseeable
occurrence of the initial act as Luparello sent them out with guns and swords. Basically, this
case says that you can be criminally culpable for the crimes of your associates if you
encourage them to act, even if they then take further actions you did not intend. The
further actions must be reasonably foreseeable though."An aider and abettor or co-
conspirator is liable not only for those crimes committed by a co-felon which he intended
or agreed to facilitate, but also for any additional crimes which are reasonably
foreseeable." Conversely, under the Model Penal Code §2.06(3), a person can only be
held criminally culpable for offences "fairly envisaged in the purposes of the association.
But when a different crime has been committed, thus involving conduct not within the

30
 conscious objectives of the accomplice, then he is not liable for it."

ROY
Finds Roy liable for robbery if it found a natural and probable consequence of the illegal
attempt to sell a handgun.

STATE v. MCVAY (ATTENDANT CIRCUMSTANCES)

After it was run in an unsafe manner, the boiler on a ship called the Mackinac exploded
killing a number of people. McVay and Grant were acting under the encouragement of a
guy named Kelley. Kelley was the one who advised the crew that the boiler should be run
unsafely. Kelley encouraged the crew to be negligent, and when they intentionally
followed his advice, people died. Conversely, if someone killed a person in a burst of
rage, then it would be difficult to find accomplice liability because those sorts of crimes
have no premeditation, so there really isn't a way to encourage them.
 Less problematic than LUPARELLO since we are punishing someone who is
encouraging someone else to be reckless.

MPC requires purpose for the commission of the offense, but is silent about the attendant
circumstances.

 ACTUS REUS AND ACCOMPLICE LIABILITY

The AR must be a purpose to aid or assist. MERE PRESENCE IS NOT SUFFICIENT.

This can be:
1. A Nexus
2. An aid in the venture.
3. Forseeability/Kind of Recklessness

2 Types of Assistance:
1. Assist
2. Encourage

Encouragement is sufficient.

If a crime is especially heinous, mere presence may be sufficient. We may be willing to lower the
Actus Reus in such a situation. (New Bedford Ray Case where women raped in bar by five
patrons; spectators could be held liable.)

PEOPLE v. RUSSELL
Russell and two other guys were having a shoot out in the middle of the city. An
innocent bystander was hit with a single bullet and died The New York Supreme Court found
that regardless of who fired the fatal bullet, the other two intentionally aided the shooter.
The defendants unsuccessfully argued that in order to be "aiding" they would
have had to share a "community of purpose." The Court found that they intentionally
aided each other to engage in mutual combat. Technically, they weren't "aiding" each
other, they were trying to kill each other. The Court noted that in this case, the

31
defendants were engaged in a dual, where they both arrived at the time and place ready to
fight. On the other hand, if a person had been ambushed and was forced to fight back
against their will, they would not be aiding and abetting their attackers. Under Model
Penal Code §2.06(4), you are criminally culpable if you are an accomplice in the conduct
of the result. You do not have to intentionally help commit the crime, you just have to
intentionally facilitate the conduct that lead to the crime. This is similar to a drag race. If
you challenge a person to a drag race, and they crash into a pedestrian, you are an
accomplice to the crime, not because you helped them crash, but because you
encouraged them to race you. (BY ENCOURAGING THE OTHER PARTIES TO
RETURN FIRE, THEY CAN BE CONSTRUED AS ACCOMPLICES.

WILCOX v. JEFFEREY (BRITISH CASE)

Defendant was convicted of unlawfully aiding jazz musician in obtaining employment in the
United Kingdom, because he went to the concert and paid for a ticket. When someone acts to
encourage another in the commission of an illegal act, they satisfy the actus reus of accomplice
liability.

STATE v. TALLY (RENDERING AID FOR THE COMISSION OF A CRIME TO MAKE IT EASIER IS
SUFFICENT AR FOR ACCOMPLICE LIABILITY)
Ross seduced Judge Tally's sister-in-law. Her brothers, the Skeltons' rode off on
horseback to go get Ross. Tally had no prior knowledge of the Skeltons' intentions. He
learned about it after they left. Ross's relative sent a telegram to Ross telling him to watch
out. Tully intercepted the telegram so Ross never received it. Talley argued that he never
encouraged the Skelton's to commit the murder so he cannot be held liable as an
accomplice. Court says it does not matter. He still aided and abetted their crime because
he rendered it easier for the principle actors to accomplish their ends.

 The Court found that they didn't require proof that the Ross would have
gotten away if he had received the telegram.
 In other words there is no requirement of a but-for relationship between
the defendant's actions and the criminal conduct of another.
o "He who facilitates murder, even by so much as destroying a single chance of life
the assailed might otherwise have had, he thereby supplements the efforts of the
perpetrator, and he is guilty as the principle in the second degree at common law,
and is principle in the first degree under Alabama Statute."

STATE v. HAYES
Hayes is convicted of being an accomplice to burglary. Court says that it should be
overturned because the principle actor never had any intent of commiting the actual
robbery. He therefore cannot be an accomplc

32
CONSPIRACY

Conspiracy can be applied to existing crimes and is a stand-alone crime in its own right. It is an
agreement between two or more parties to complete a crime. IT IS KNOWN AS THE
DARLING OF PROSECUTORS BECAUSE:
1. You can double up on the conspiracy charge and another charge.
2. Allows for apprehending a criminal earlier than accomplice liability.
3. You can have vicarious liability for co-conspirators without proving accomplice
liability.
4. It is a continuing offense so we have to worry less about the statute of limitations.
5. Conspiracy charges can be brought in any jurisdiction where the conspiracy occurred.
6. Prosecutor can testify conspiracy to the heart's content and hearsay evidence is
admissible.
7. All members of the conspiracy go to trial together thereby having a substantial impact
on the jury.

CONSPRIACY AR = AN AGREEMENT
CONSPIRACY MR = AN AGREEMENT

MPC
Accomplice for substantive crime committed by co-conspirators only available when strict
conditions of accomplice liability are met (SPECIFIC INTENT and AR ACTION)

Conspiracy cannot generally be abandoned unless you write and send a letter to abandon. Absent
that it is difficult because the act of conspiring is, in itself, a crime.

PINKERTON v. U.S. (VICARIOUS LIABILITY OF CO-CONSPIRATOR FOR ACTS

IN FURTHERANCE OF THE CONSPIRACY)
Brief Fact Summary

Two brothers were indicted for violations of the Internal Revenue Code. There was no evidence to
support the conviction of one of the brothers on the substantive offense. An overt act of one partner
may be the act of all without any new agreement specifically directed to that act. Motive or intent may
be proved by the acts or declarations of some of the conspirators in furtherance of the common

33
objective. Thus, Pinkerton was still part of the conspiracy even though he was unaware of the
subsequent act by his partner. PINKERTON PURPOTED TO IMPOSE VICARIOUIS LIABILITY ON EACH CO-
CONSPIRATOR FOR THE ACTS OF OTHERS BASED ON AN OBJECTIVE STANDARD (w/in scope of
conspiracy) OF REASONABLE FORESEEABILITY

STATE v. BRIDGES (ACCOMPLICE LIABILITY FOR NATURAL CONSEQUENCES OF CONSPIRACY)

A co-conpsirator may be liable for the commission of substantive criminal acts that are not within the
scope of the conspiracy if they are reasonably forseeable as the necessary or natural consequences of
the conspiracy. IN THIS CASE, THE CONSPIRACY DID NOT HAVE THE MAIN OBJECTIVE OF KILLING
ANOTHER PERSON. HOWEVER, the CONSPIRATOL PLAN CONTEMPLATED BRINGING LOADED GUNS TO
KEEP A LARGE CONTIGENT OF HOSTILE PARTYGOERS BACK AND THAT IT COULD BE ANTICIPATED THAT A
GUN WOULD BE DISCHARGED.

ALVAREZ (CONSPIRATIONAL LIABILITY FOR A MINOR PARTICIPANT)

Minor participants would not be held liable for the murder of the federal agents, but the defendants
named were because it was a natural and forsseable consequences that a shoot-out would ensue due to
the large amount of drugs and money at stake. It is true that the death of the agent was not within the
intended scope of the conspiracy. These defendants were major players within the conspiracy due to
their heightend knowledge and the fact they were armed.

INTERSTATE CIRCUIT (IMPLIED CONSPIRACY)

Two related movie theater chains and eight distributors of motion pictures conspired to regulate movie
prices and in so doing restrained commerce and violated the Sherman Anti-Trust Act. An unlawful
conspiracy may be formed without the simultaneous action or agreement on the part of the
conspirators. Court suggests it is an unlikely coincidence that all of the distributors and theatres would
have had such unanimity in placing far-reaching changes into their business models absent some
understanding that all were to join. A CONSPIRAcY MAY EXIST IF THERE IS NO COMMUNICATION AnD
EXPRESS AGREEMENT PROVIDED THAT THERE IS A TACIT AGREEMENT RECHED WITHOUT
COMMUNICATION.

Common Law Standard for Conspiratol Acts

We don't need an overt act to show agreement, but we need to distinguish between market conditions
and inferred, implied, or tacit agreement. We need to show that such action is not merely a market
action.

MPC:
Need an overt action in furtherance of the conspiracy.

THUS CONSPIRACY CAN BE PUNISHED MUCH EARLIER THEN FOR ATTEMPT TO COMMIT A CRIME.

CONSPIRACY AND SCOPE OF AGREEMENT

34
PEOPLE v. LAURIA (MORE SUSTAINED SET OF CONDITIONS MUST BE SHOWN TO ESTABLISH
CONSPIRACY)
"With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products
or services are being used for criminal purposes does not, without more, establish an intent of the
supplier to participate in the misdemeanors..." With respect to felonies, "...the intent of a supplier who
knows of the criminal use to which his supplies are put to participate in the criminal activity connected
with the use of his supplies may be established by (1) direct evidence that he intends to participate, or
(2) through an inference that he intends to participate based on, (a) his special interest in the activity, or
(b) the aggravated nature of the crime itself. THIS CASE DESCRIBES WHEN A SUPPLIER CAN BE
CONSIDERED PART OF A CONSPIRACY.

MR Analysis for a Supplier accused of engaging in conspiratal conduct from the sales of his products:
Look at:
1. Quantity of Sales (Is it a large number or small number? How much of the total percentage of
supplier's business does it constitute?) (If the amount is large, stronger evidence for conspiracy.)
2. Nature of Goods (Is it ordinary materal or material associated with a criminal purpose?)
3. Continutiy of Relationship between buyer and seller (Is it a long on-going one or limited?)
4. Prices Charged (Does he charge more than normal?)

THESE DO NOT ALL NEED TO BE FULLFILLED; COURT LOOKS AT THE REQUIREMENTS IN TOTALITY TO
DECIDE. A STRONG SHOWING IN ANY CATEGORY CAN BE SUFFICENT TO ESTABLISH MR CONSPIRACY

KOTTEAKOS (SPOKE and RIM CONSPIRACY; NO RIM OF COMMON PURPOSE HERE)

Several individual conspire with Brown on a separate basis to commit a felony. The question is weather
all of those separate individuals can be linked to each other via rim to form one large conspiracy. Brown
wants only one big conspiracy to avoid multiple conspiracy charges. The other people want multiple
ones so that their offense will be less severe. Court says there is insufficient evidence to link to individual
conspirators with each other. Brown is the only common link and so sepearte conspiracies must be
charged.

ANDERSON v. SUPERIOR COURT (RIM OF COMMON PURPOSE IS ESTABLISHED)

Anderson brings women to STERN in order to povide them with abortions. She is thus complicit inn
conspiracy. Is she vicariously liable for all the other people bringing women to Stern for abortions?
Possibly. Anderson has a common purpose with the other suppliers since the more business Stern gets,
the more Anderson will get paid. THE RIM THAT CONNECTS CO-CONSPIRATORS MUST THUS HAVE A
COMMON PURPOSE.

U.S. v. BRUNO (CHAIN CONSPIRACY)

Defendants were indicted along with 86 others for a conspiracy to import, sell, and possess narcotics.
Defendants complain that, if the evidence proved anything, it proved a series of separate conspiracies

35
and not a single one. Each link knew that the other links were necessary components in the scheme of
distribution and were all parts of a single undertaking. Thus, the court held that there was only one
conspiracy. THERE IS ONE COMMON PURPOSE BECAUSE EVERYONE NEEDS EACH OTHER TO STAY IN
BUSINESS. IF NY AND TX WERE COMPETING AGAINST EACH OTHER, HOWEVER, THEY WOULD NOT
SHARE A COMMON PURPOSE AND THUS THERE ARE SEPARATE CONSPIRACIES. IF IL were to join, IL only
responsible for conspiratol activity following its joinder.

U.S. v. MCDERMOTT (NO CONSPIRACY HERE; BROKEN CHAIN)

Guy has affair with an adult actress and reveals inside information to her. Unbeknowst to him, she tells a
banker and makes lots of money. MCDermott is not part of conspiracy because he does not have a
shared purpose; he will not get any of the money. No evidence that he ever agreed to pass along the
information to third party.

CONSPIRATOL SCOPE WE LOOKED AT WAS PRESENT IN COMMON LAW.

MPC ON SCOPE OF CONSPIRACY

MPC limits the scope of an actor's conspiracy in terms of its criminal objectives to those crimes that he
had the purpose of promoting both in terms of its criminal objectives . (SEE p. 713-714)

VIII. EXCULPATION
SELF-DEFENSE

JUSTIFICATION - ACTION WAS THE RIGHT AND SENSIBLE THING TO DO UNDER THE CIRCUMSTANCES.
THUS IMPOSES NO CULPABILITY ON THE ACTOR.

EXCUSE - ACTION WAS IN RESPONSE TO

SD is a justification, not an excuse.
Provocation is an excuse.

GOETZ (ILLUSTRATIO OF SELF-DEFENSE PRINCIPALS)

Goetz shoots three youths in self-defense while riding the subway. They produced screwdrivers and
demanded he give them 5 dollars. Goetz, thinking he would be robbed and given his prior mugging
experience, shoots each of them. Court says the self-defense standard needs to be applied as a
subjective/objective person standard so the nature of the imminent threat must be perceived in the
context in which Goetz reasonably perceived it to be. THIS DOES NOT MEAN THAT WhATEVER GOETZ
BELIEVED IS SUFFICIENT TO TRIGGER THE DEFENSE; THE BELIEF MUST BE REASONABLE. IF IT WERE AN
UNREASONABLE BELIEF, HE COULD BE HELD LIABLE FOR RECKLESS MURDER Since he was on a subway, it
was unlikely he could escape.

36
COMON LAW ELEMENTS OF SELF DEFENSE:
1. D had an honest and reasonable fear of Bodily Harm.
2. Perceived threat is lawful and imminent.
3. Defendant acted in a proportionate response.
4. Defendant was not an initial aggressor.
5. Duty to retreat.

We need to de-Goetz the individual. Best way is to scratch prior history and focus on the objective
physical traits and tangible details of the situation. BE CAREFUL ABOUT MAKING INDIVIDUAL MORE AND
MORE SUBJECTIVE.

PROPORTIONALITY
If threat is serious bodily harm, then response is serious bodily harm. It must be proportional to the
threat that Goetz perceives. SUCH PERCEPTION IS PART OBJECTIVE AND PART SUBJECTIVE.

MPC SELF DEFENSE 3.09 (2)

Use of force is justifiable when the actor believes that such force is immediately necessary. IF THE
ACTOR IS RECKLESS OR NEGLIGENT IN FORMING SUCH A BELIEF, THEN SHE CAN BE HELD CULPABLE FOR
HER ACTIONS .

BATTERED WOMAN SYNDROME (COMMON LAW ONLY)

Recognizes that a women who is habitually abused by her husband is in a special circumstance. There
must be evidence of a cycle where the husband engages in minor and major bouts of battery followed
by the exerting of some loving behavior. The women is often unable to leave her spouse for financial
reasons and she fears of telling the authorities or friends for fear of reprisal by her husband.

STATE v. KELLY (BATTERED WOMAN SYNDROME)

Women kills her husband and court says her battered woman defense suffices. Husband had
approached her with his arms raised while she was in a crowd. Although this seems that it would violate
the CL "imminence" requirement, it could constitute imminence in her case because she has a long
history of prior assault by her husband. Such an action could trigger the start of another battery event
and make her reasonably believe that danger was imminent. NO DUTY TO RETREAT BECAUSE SHE
CANNOT RETEAT TOTALLY AND SHE IS PPSYCHOLOGICALLY INCAPABLE OF LEAVING HER HUSBAND.
WHERE WOULD SHE GO? HOW COULD SHE SUPPORT HERSELF?

STATE v. NORMAN (LIMITATIONS OF BATTERED WOMAN DEFENSE)

Norman is repeatedly beaten by her husband. She waits until he falls asleep and she kills him. She is
convicted of voluntary manslaughter. She cannot assert the battered women defense because the
imminence of the danger had passed. She gets manslaughter instead of murder probably because jury
felt she was suffering from extreme emotional distress. DISTINGUISH IMMINENT FROM INEVITABLE

DEFENSE OF ANOTHER

37
Deadly force can be used by a third party in the aid of another when the same circumstances exist to
justify the use of deadly force by the endangered person herself.

STATE v. ABBOT
Duty of Retreat. When does the duty kick-in? There is no duty to retreat from a potential danger, unless
the defending party intends to use deadly force. Obviously, the duty to retreat lessens with the greater
amount of force that is used by the aggressor.

CASTLE RULE:
NO DUTY TO RETREAT IN ONE'S HOME.

UNITED STATES v. PETERSON:

Peterson is threatened and retreats to his home. He emerges from the house as the agressors are
walking away and tells him stop moving. At this point, Peterson becomes the initial aggressor because
his initial retreat had disarmed the situation. He shoots and kills the other man when the man starts
advancing towards him. Because Peterson was the initial aggressor, he cannot make a claim of self-
defense, even on his own property.

Depending on how the parties frame the sequence of events determines who the initial aggressor is.

NECCESITY AND DURESS

NECCESITY
Breaking the law in order to prevent the onset of harm. (Example, escaping from prison to avoid threat
of physical violence.) DO THE ILLEGAL ACT BECAUSE IT IS THE LESSER OF TWO EVILS.

DURESS
DO THE ILLEGAL ACT THAT SOMEONE FORCES YOU TO DO. THE standard is a person of reasonable moral
strength who cannot be expected to resist.

COMMON LAW NECCESITY

1. Must be choice of a lesser evil.
2. The harm must be tangible (persons or property) but it cannot be intangible or economic loss
3. Requires intervention to avoid harm.
4. Requires imminence in the action.

MPC NECESSITY
MPC 3.02 p. 804-805

38
PEOPLE v. UNGER
Unger escapes from prison in order to avoid harm from another inmate. Case is remanded to jury as
necessity in this situation could be a valid defense.
BOROUGH OF SOUTHWARK
No necessity defense for squatters because no grave or imminent danger. If this became precedent,
everyone's house would be fair game. Fundamnetal infringement on property rights.
LENO
HUTCHINS
No necessity defense for someone using marijuana for personal medical reasons.

U.S. v. SCHOON
Defendants appeal their conviction for obstructing the activities of the IRS office in Tucson, Arizona and
failing to comply with the order of a federal officer. The convictions stemmed from a protest staged by
the defendants in order to bring attention to United States involvment in El Salvador. The court held
that the necessity defense was not intended as justification for illegal acts taken in indirect political
protest.

DURESS (EXCUSE)
DOING THE ILLEGAL ACT THAT SOMEONE WANTS YOU TO DO.

An excuse is predicated upon the presence of some disability or disabling condition affecting the actor
claiming the defense.

COMMON LAW DURESS

1. Potetial harm must be present, imminent and pending.
2. Potential harm must be ser orsuch a nature as to induce a well grounded apprehension of death or s
serious bodily harm if act is not done.
[Link] can never justify the killing of an innocent person.
4. Will usually not recognize threats to property or of slight injury.
5. If the harm is well into the future, duty to escape.

MPC 2.09 Right to Duress

Duress applies in cases where the actor was coerced by force or threats of force that a person of
reasonable firmness in his situation would have been unable to resist. Physical, tangible factors can be
used to differentiate one actor from another in relation to the circumstances. Matters of tempermant
are not considered. MPC IS NOT AS CONCERNED WITH IMMINENCE OF THREAT AS CL, BUT COURTS
HAVE STILL INTERPRETED IT TO MEAN IMMINENCE ANYWAY

NECCESITY v. DURESS pp. 840 -842

TOSCANO

39
Duress can successfully be invoked because of immediate threats of physical violence by Lenonardo
against D and his wife to force him to engage in the fradulant conduct.

McDERMOTT

40