crim_LEXUS NEXUS OUTLINE

includes (1) a voluntary act (2) that causes (3) social harm

physical behavior.

volitional movement. Habitual conduct – even if the defendant is unaware of what he isdoing at the time – may still be deemed voluntary.

element ofthe crime,It is sufficient that the defendant’s conduct – which is the actual andproximate cause of the social harm – included a voluntary act

Similar to the common law, MPC § 2.01 requires that criminalconduct include a voluntary act. It does not define the term “voluntary,” but Comments listbodily movements that are involuntary: reflexes, convulsions, conduct duringunconsciousness, sleep, or due to hypnosis, as well as any conduct that “is not a product ofthe effort or determination of the defendant, either conscious or habitual.” Excluded fromthe requirement that the act be voluntary are offenses that constitute a “violation” [§2.05],defined as an offense for which the maximum penalty is a fine or civil penalty.

• Common Law:no legal duty to act( prevention, different then causation)A person who harms another or places a personin jeopardy of harm, or who damages property, even if unintentionally, has a common lawduty to render assistance.
• split of authority regarding whether one who justifiably shootsan aggressor in self-defense has a subsequent duty to obtain medical attention for thewounded aggressor

• consistent with the common lawregarding omissions.
• two circumstances: (1)if the law defining the offense provides for it; or (2) if the duty to act is “otherwise imposedby law.

defined by statute or atcommon law, may consist of wrongful conduct, wrongful results, or both. Moreover, theoffense will contain so-called “attendant circumstance” elements.

Some crimes establish social harm interms of conduct, irrespective of any harmful results, e.g., driving under the influence ofalcohol

An offense may be defined in terms of aprohibited result. For example, murder is a “result” crime, because the social harm is thedeath of another human being, irrespective of the nature of the conduct that resulted in suchdeath (e.g., whether the death occurred by shooting, stabbing, or poisoning)

“attendance circumstance” is a fact or condition thatmust be present at the time the defendant engages in the prohibited conduct and/or causesthe prohibited result that constitutes the social harm of the offense. Often an attendantcircumstance is an element of the offense, e.g., the crime of burglary – the breaking andentering of the dwelling house of another at nighttime – contains an elemental attendantcircumstance that the crime must occur at night.

actus reus of a crime is composed of: (1) a voluntary act (2)that causes (3) social harm. As all offenses contain an actus reus, causation is an implicitelement of all crimes. Causation may be “actual” or “proximate.

common law:But-for” test: But for the defendant’s voluntary act(s), would the social harm have occurred when itdid?

multiple causes:When a victim’s injuries or death are sustained from twodifferent sources, any of the multiple wrongdoers can be found culpable if his act was “a”cause-in-fact of the injury or death. It is not necessary that any act be the sole and exclusivecause-in-fact of injury.


Accelerating a result Even if an outcome is inevitable – e.g., everyone dies – ifdefendant’s act accelerated death, he can be found criminally liable. The “but-for” test canbe stated in such circumstances as “but for the voluntary act of the defendant, would theharm have occurred when it did?” E.g., a defendant shoots a terminally ill patient may still befound guilty of homicide since although the victim’s death was inevitable, it would not likelyhave occurred when it did but for the defendant’s unlawful act.



Concurrent Causes: case of infliction of harm from two or more sources,each act alone was sufficient to cause the result that occurred when it did, the causes areconcurrent and each wrongdoer can be found criminally liable.

Obstructed Cause If a defendant commits a voluntary act intending to cause harm –e.g., shooting a victim in the stomach intending to kill the victim – but another wrongdoercommits a more serious injury that kills the victim sooner, the initial wrongdoer might onlybe convicted of attempt to kill since the subsequent wrongdoer’s act obstructed his goal tokilling the victim.

The Model Penal Code applies the but-for (sine qua non) rule.[MPC § 2.03(1)(a).]

Direct Cause – An act that is a direct cause of social harm is also a proximate cause ofit.

[B] Intervening Causes – An “intervening cause” is an independent force that operates inproducing social harm, but which only comes into play after the defendant’s voluntary actor omission; e.g., the intervention can occur as a result of wrongdoing by a third party, or asthe result of a dangerous or suicidal act by the victim, or a natural force (“an act of God”).When an intervening cause contributes to the social harm, the court must decide whethersuch intervening cause relieves the defendant of liability. If so, the intervening event isdeemed a “superseding cause” of the social harm.

De Minimis Contribution to the Social Harm – In some cases, if the defendant’svoluntary act caused minor social harm compared to the social harm resulting from asubstantial, intervening cause, the law will treat the latter as the proximate cause of the social



Foreseeability of the Intervening Cause – Some cases have held that the defendantcannot escape liability if the intervening act was reasonably foreseeable, whereas anunforeseeable intervening cause is superseding in nature. However, in determiningforeseeability, the law tends to distinguish between “responsive” (or “dependent”) and“coincidental” (or “independent”) intervening causes.A responsive intervening cause is an act that occurs as a result of the defendant’s priorwrongful conduct. Generally, a responsive intervening cause does not relieve theinitial wrongdoer of criminal responsibility, unless the response was highlyabnormal or bizarre. E.g., a defendant who wrongfully injures another is responsiblefor the ensuing death, notwithstanding subsequent negligent medical treatment thatcontributes to the victim’s death or accelerates it. However, grossly negligent or recklessmedical care is sufficiently abnormal to supersede the initial wrongdoer’s causalresponsibility.A coincidental intervening cause is a force that does not occur in response to the initialwrongdoer’s conduct. The only relationship between the defendant’s conduct and theintervening cause is that the defendant placed the victim in a situation where the interveningcause could independently act upon him. The common law rule is that a coincidentalintervening cause relieves the original wrongdoer of criminal responsibility, unless theintervention was foreseeable.



Apparent Safety Doctrine – A defendant’s unlawful act that puts a victim in dangermay be found to be the proximate cause of resulting harm, unless the victim has a route tosafety but instead puts herself in further harm, which causes the injury of death. E.g., aspouse’s physical violence causes his wife to flee the house on a freezing night, and although16Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.the wife can find nearby shelter with a relative or friend, decides to spend the rest of the nightoutside, and dies from freezing temperature.

• Free, Deliberate, Informed Human Intervention – A defendant may be relieved... but wouldnot relieve act resulted from duress.

Omissions – An omission will rarely, if ever, serve as a superseding intervening cause,even if the omitter has a duty to act. E.g., a father’s failure to intervene to stop a strangerfrom beating his child will not ordinarily absolve the attacker for the ensuing homicide,although the father may also be responsible for the death on the basis of omission principles

The Code treats matters of “proximate causation” as issues relatinginstead to the defendant’s culpability. That is, in order to find the defendant is culpable, thesocial harm actually inflicted must not be “too remote or accidental in its occurrence fromthat which was designed, contemplated or risked.This would mean that in a jurisdiction thatrecognizes the felony-murder rule, but which applies Model Penal Code causation principles,a defendant may not be convicted of felony-murder if the death was not a probableconsequence of his felonious conduct.

proximate cause is not an element, rather it pertains to the culpability of the defendant

specific state ofmind such as “intentionally,” “knowingly,” or “recklessly.”

and

elemental ( as set forth by each crimes definition)

if: (1)it is his desire (i.e., his conscious object) to cause the social harm; or (2) he acts withknowledge that the social harm is virtually certain to occur as a result of his conduct.

“transferred intent” attributes liability to a defendant who, intending to kill(or injure) one person, accidentally kills (or injures) another person instead. The law“transfers” the defendant’s state of mind regarding the intended victim to the unintended one.

aware of the fact or he correctly believes that it exists

and sometimes guilty of “wilful blindness” or “deliberate ignorance

“intentional,” “an act done with a bad purpose,” “an evil motive,” or “apurpose to disobey the law.

Criminal negligence gross deviation from the standard of reasonable care takes a substantial, unjustifiable risk of causing the social harm

• .Three factors come into play when determining whether a reasonable person would haveacted as the defendant did:(
• 1) the gravity of harm that foreseeably would result from the defendant’s conduct;
• (2) the probability of such harm occurring; and
• (3) the burden to the defendant of desisting from the risky conduct.

disregarded a substantial and unjustifiable risk of which he was aware

state of mind. Criminal negligence involves anobjective standard – the defendant, as a reasonable person, should have been aware of thesubstantial and unjustifiable risk he was taking); recklessness implicates subjective fault, inthat the defendant was in fact aware of the substantial and unjustifiable risk he was takingbut disregarded the risk.

malice” if he intentionally or recklessly causes thesocial harm prohibited by the offense

• general intent. meant to do the crime
• specific intent, means to do something further with special motive

• in MPC, there is onlu poruposely, recklessly knowingly,negligently.
• must be applied to each part ( including affirmatice defenses)

purposely” if it ishis “conscious object to engage in conduct of that nature or to cause such a result.

isaware of the existence of such circumstances or he believes or hopes that they exist.”

is aware that it ispractically certain that his conduct will cause such a result.”

attendant circumstances” and “conduct” elements, one acts “knowingly” if he is “aware thathis conduct is of that nature or that such [attendant] circumstances exist. Furthermore, theCode states that knowledge is established, if “a person is aware of a high probability of . . .[the attendant circumstance’s] existence, unless he actually believes that it does not exist.”

“recklessly” ifhe “consciously disregards a substantial and unjustified risk that the material element existsor will result from his conduct.” A risk is “substantial and unjustifiable” if “considering thenature and purpose of the defendant’s conduct and the circumstances known to him, itsdisregard involves a gross deviation from the standard of conduct that a law-abiding personwould observe in the actor’s situation.” [MPC § 2.02(2)(c)]

A person’s conduct is “negligent” if the defendant “should be aware of a substantial andunjustifiable risk that the material element exists or will result from his conduct.” [MPC §2.02(d)] The definition of “substantial and unjustifiable” is the same as that provided for inthe definition of “recklessness,” except that the term “reasonable person” is substituted

missing mens rea from one or more elements. sometimes only showing actus reas is sufficient


The Model Penal Code does not recognize strict liability

• Self-defense
• • Defense of others
• • Defense of property and habitation
• • Use of lawful force
• • Necessity§

moral culpability

• ex:
• Duress
• • Insanity
• • Diminished capacity
• •Intoxication (in very limited circumstances)
• • Mistake of fact
• • Mistake of law (in very limited circumstances)

common law defense to thecrime of attempt.

Common Law – A non-aggressor is justified in using force upon another if hereasonably believes that such force is necessary to protect himself from imminent use ofunlawful force by the other person.

• mpc
• A person is justified in using force upon another person if hebelieves that such force is immediately necessary to protect himself against the exercise ofunlawful force by the other on the present occasion.
• a person may not use force toresist an arrest that he knows is being made by a police officer, even if the arrest is unlawful
• 3.09 makes it reasonable necessary

• CL
• Deadly force is only justified in self-protection if the defendantreasonably believes that its use is necessary to prevent imminent and unlawful use of deadlyforce by the aggressor. Deadly force may not be used to combat an imminent deadly assaultif a non-deadly response will apparently suffice.

• MPC
• believes that such force is immediately necessary toprotect himself on the present occasion against:(1) death;(2) serious bodily injury;(3) forcible rape; or(4) kidnapping.The Code prohibits the use of deadly force by a deadly aggressor, i.e., one who, “with thepurpose of causing death or serious bodily injury, provoked the use of force against himselfin the same encounter.” [MPC § 3.04(2)(b)(i)]

Common Law – If a person can safely retreat and, therefore, avoid killing theaggressor, deadly force is unnecessary. Nonetheless, jurisdictions are sharply split on theissue of retreat. A slim majority of jurisdictions permit a non-aggressor to use deadly forceto repel an unlawful deadly attack, even if he is aware of a place to which he can retreat incomplete safety. Many jurisdictions, however, provide that a non-aggressor who is threatenedby deadly force must retreat rather than use deadly force, if he is aware that he can do so incomplete safety.A universally recognized exception to the rule of retreat is that a non-aggressor need notordinarily retreat if he is attacked in his own dwelling place or within its curtilage [theimmediately surrounding land associated with the dwelling], even though he could do so incomplete safety.[B] Model Penal Code – One may not use deadly force against an aggressor if he knowsthat he can avoid doing so with complete safety by retreating. Retreat is not generallyrequired in one’s home or place of work. However, retreat from the home or office isrequired: (1) if the defendant was the initial aggressor, and wishes to regain his right of selfprotection;or (2) even if he was not the aggressor, if he is attacked by a co-worker in theirplace of work. However, the Code does not require retreat by a non-aggressor in the home,even if the assailant is a co-dweller.

self-defense is based on reasonable appearances, rather than on objectivereality. Thus, a person is justified in using force to protect himself if he subjectively believesthat such force is necessary to repel an imminent unlawful attack, even if appearances proveto be false.Courts are increasingly applying a standard of the “reasonable person in the defendant’ssituation” in lieu of the “reasonable person” standard. Factors that may be relevant to thedefendant’s situation or circumstances include:(1) the physical movements of the potential assailant;(2) any relevant knowledge the defendant has about that person;(3) the physical attributes of all persons involved, including the defendant;(4) any prior experiences which could provide a reasonable basis for the belief that theuse of deadly force was necessary under the circumstanc

Common Law – The traditional common law rule is that if any element necessary toprove self-defense is lacking, the defense is wholly unavailable to a defendant. Some statesnow recognize a so-called “imperfect” or “incomplete” defense of self-defense to murder,which results in conviction for the lesser offense of either voluntary or involuntarymanslaughter. For example, a defendant who fails to satisfy the “reasonableness”component, although his belief was genuine, might be able to assert an “imperfect” or“incomplete” claim of self-defense, mitigating his crime to manslaughter.

• MPC
• The Model Penal Code likewise recognizes an imperfect defensewhere the defendant asserts a justification defense, evaluated in terms of the defendant’ssubjective belief in the necessity of using the force or other material circumstances.However, justification defenses are subject to section 3.09(2), which provides that when thedefendant is reckless or negligent in regard to the facts relating to the justifiability of hisconduct, the justification defense is unavailable to him in a prosecution for an offense forwhich recklessness or negligence suffices to establish culpability.

A special type of self-defense is the “battered woman syndrome” defense. Cases in whichthis defense arise may occur under three scenarios:(1)“Confrontational” homicides, i.e., cases in which the battered woman kills herpartner during a battering incident. In such cases, an instruction on self-defense is almostalways given. It is now routine for a court to permit a battered woman to introduceevidence of the decedent’s prior abusive treatment of her, in support of her claim of selfdefense.(2) “Non-confrontational” homicide, where the battered woman kills her abuser whilehe is asleep or during a significant lull in the violence. Courts are divided on whether selfdefensemay be claimed if there is no evidence of threatening conduct by the abuser at thetime of the homicide, although the majority position is that homicide under suchcircumstances is unjustified.(3) Third-party hired-killer cases, in which the battered woman hires or importunesanother to kill her husband, and then pleads self-defense. Courts have unanimouslyrefused to permit instructions in third-party hired-killer cases.

Common Law – Courts apply a transferred-justification doctrine, similar to thetransferred-intent rule: a defendant’s right of self-defense “transfers” (just as intent to killdoes) from the intended to the actual victim. While the defense is absolute in somejurisdictions, other courts do not treat this rule as absolute. If the defendant, acting justifiablyin self-defense against an aggressor, fires a weapon “wildly or carelessly,” therebyjeopardizing the safety of known bystanders, some courts hold the defendant guilty ofmanslaughter (or of reckless endangerment if no bystander is killed), but not of intentionalhomicide.[B] Model Penal Code – If a person justifiably uses force against an aggressor, but usessuch force in a reckless or negligent manner in regard to the safety of an innocent bystander,the justification defense, which is available to the person in regard to the aggressor, isunavailable to him in a prosecution for such recklessness or negligence as to thebystander

• CL
• to the extent that the third party is justified in acting in selfdefense. but today:the majority view is that theuse force may be justified if it reasonably appears necessary for the protection of the thirdparty

• MPC
• Subject to retreat provisions, Section 3.05(1) justified force by anintervenor in order to protect a third party if:(1) he uses no more force to protect the third-party than he would be entitled to use inself-protection, based on the circumstances as he believes them to be;(2) under the circumstances as he believes them to be, the third party would be justifiedin using such force in self-defense; and(3) he believes that intervention is necessary for the third party’s protection.[B] Effect of Retreat Rules – The Code’s retreat rules have applicability in very limitedcircumstance here:(1) the intervenor is only required to retreat before using force in protection of a thirdparty in the unlikely circumstance that he knows that such retreat will assure the thirdparty’s complete safety. [MPC § 3.05(2)(a)](2) the intervenor must attempt to secure the third party’s retreat if the third party herselfwould be required to retreat, if the defendant knows that the third party can reach completesafety by retreating. [MPC § 3.05(2)(b)](3) neither the intervenor nor the third party is required to retreat in the other’s dwellingor place of work to any greater extent than in her own dwelling or place of work. [MPC §

Common Law – A person in possession of real or personal property is justified inusing non-deadly force against a would-be dispossessor if he reasonably believes that suchforce is necessary to prevent imminent and unlawful dispossession of the property. Under nocircumstances may a person use deadly force to prevent dispossession.[1] Possession versus Title to Property – The privilege of defense-of-property entitles aperson to use necessary force to retain rightful possession of, as distinguished from title to,personal or real property.[2] Threat to Use Deadly Force – Although states universally prohibit use of deadly forceto protect property, they are divided as to whether one may threaten it as a way to preventdispossession.[3] Claim of Right – When a person asserts a claim of right to property in the possessionof another and seeks to reclaim such property, the possessor is not justified in using force tothwart the dispossession if he knows, believes, or as a reasonable person should believe, thatthe claimant has a legitimate claim of right to possession of the property in question. Sincethe use of force to protect property is legitimate only if the act/attempted act of dispossessionis unlawful, in such cases of a legitimate claim to property, the act of dispossession islawful.[4] Recapture of Property – A person may not ordinarily use force to recapture propertyof which he has been unlawfully dispossessed except if he acts promptly after dispossession.One may follow the dispossessor in hot pursuit in order to recapture his property and ifnecessary, use non-deadly force in the process.[B] Model Penal Code[1] General Rule Allowing Use of Non-deadly Force – The Model Penal Codeessentially conforms to the common law. Section 3.06(1)(a) provides that a person may usenon-deadly force upon another person to prevent or terminate an entry or other trespass uponland, or to prevent the carrying away of personal property, if he believes that three conditionsexist:(1) the other person’s interference with the property is unlawful;(2) the intrusion affects property in the defendant’s possession, or in the possession ofsomeone else for whom he acts; and(3) non-deadly force is immediately necessary.[2] Limitations on Use of Non-deadly Force – Non-deadly force that is otherwisepermitted in defense of property is unjustified in two circumstances.28Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(1) Force is not “immediately necessary” unless the defender first requests desistance bythe interfering party. A request is not required, however, if the defender believes that arequest would be useless, dangerous to himself or to another, or would result in substantialharm to the property before the request can effectively be made. [MPC § 3.06(3)(a)](2) One may not use force to prevent or terminate a trespass to personal or real propertyif he knows that to do so would expose the trespasser to a substantial risk of serious bodilyinjury. [MPC § 3.06(3)(b)][3] Recapture of Property – Section 3.06(1)(b) permits the use of non-deadly force to reenterland or to recapture personal property if:(1) the defendant believes that he or the person for whom he is acting was unlawfullydispossessed of the property; and either(2a) the force is used immediately after dispossession; or(2b) even if it is not immediate, the defendant believes that the other person has noclaim of right to possession of the property. Here, however, re-entry of land (asdistinguished from recapture of personal property) is not permitted unless the defendantalso believes that it would constitute an “exceptional hardship” to delay re-entry until hecan obtain a court order.[4] Deadly Force to Prevent Serious Property Crimes – The Model Code goes beyondthe common law in permitting deadly force to protect any type of property in limitedcircumstances, where the defendant believes that:(1) the other person is attempting to commit arson, burglary, robbery, or felonious theftor property destruction;(2) such force is immediately necessary to prevent commission of the offense; and either(3a) the other person previously used or threatened to use deadly force against him oranother person in his presence, or(3b) use of non-deadly force to prevent commission of the offense would expose him oranother innocent person to substantial danger of serious bodily injury

Common Law Use of Deadly Force – It is generally accepted that a person may usedeadly force to defend his home, but the extent to which such exercise of deadly force isjustified varies. Some courts allow deadly force only to prevent entry into the home. In suchjurisdictions, once entry has occurred, the defendant is only justified in using deadly force ifbased on another ground such as self-defense. Others permit deadly force in the home evenafter entry has been completed.There are three approaches to the use of deadly force in defense of habitation.[1] Early Common Law Rule – Early common law broadly defined this rule to permit ahome-dweller to use deadly force if he reasonably believed that such force was necessary toprevent an imminent and unlawful entry of his dwelling.

“Middle” Approach – A more narrow approach to the defense of habitation providesthat a person may use deadly force if he reasonably believes that:(1) the other person intends an unlawful and imminent entry of the dwelling;(2) the intruder intends to injure him or another occupant, or to commit a felonytherein; and(3) deadly force is necessary to repel the intrusion.[3] “Narrow” Approach – A narrow version of the defense provides that a person isjustified in using deadly force upon another if he reasonably believes that:(1) the other person intends an unlawful and imminent entry of the dwelling;(2) the intruder intends to commit a forcible felony – a felony committed by forciblemeans, violence, and surprise, such as murder, robbery, burglary, rape, or arson – or to killor seriously injure an occupant; and(3) such force is necessary to prevent the intrusion.[B] Model Penal Code – A person may use deadly force upon an intruder if he believesthat:(1) the intruder is seeking to dispossess him of the dwelling;(2) the intruder has no claim of right to possession of the dwelling; and(3) such force is immediately necessary to prevent dispossession.[MPC § 3.06(3)(d)(i)] The defendant may use deadly force even if he does not believe thathis or another person’s physical well-being is jeopardized.This provision is broader than the common law in that the right to use deadly force is notpredicated on the defendant’s right to safe and private habitation, but rather is founded on hisright to possession of the dwelling. On the other hand, this provision does not authorizedeadly force merely to prevent an unlawful entry into the home, as the common laworiginally permitted.§ 10.03 Spring GunsAn increasing number of states now prohibit the use of a mechanical device designed to killor seriously injure an intruder to protect property, even if the possessor would be justified inusing deadly force in person. The Model Penal Code bans the use of such devices as well

By Police Officers – At common law, a police officer was authorized to make anarrest under these circumstances.(1) For a felony or for a misdemeanor, an arrest could be based upon “reasonable” or“probable” cause. [Draper v. United States, 358 U.S. 307, 310 n.3 (1959)](2) Felony arrests could be made with or without an arrest warrant. [United States v.Watson, 423 U.S. 411 (1985)](3) Warrantless misdemeanor arrests were valid only if the offense occurred in theofficer’s presence. However, in the absence of an emergency or consent, warrantlessfelony arrests in the home are unconstitutional. [Payton v. New York, 445 U.S. 573 (1980)][B] By Private Persons – Private persons have common law authority to make “citizenarrests” for a felony, or for a misdemeanor involving a breach of the peace, [Cantwell v.Connecticut, 310 U.S. 296, 308 (1940)] if: (1) the crime actually occurred; and (2) the privateperson reasonably believes that the suspect committed the offense. With misdemeanors, theoffense must also occur in the arresting person’s presence.§ 11.02 Crime Prevention; Non-deadly Force[A] Common and Statutory Law – In general, a police officer or private person isjustified in using non-deadly force upon another if he reasonably believes that: (1) such otherperson is committing a felony, or a misdemeanor amounting to a breach of the peace; and (2)the force used is necessary to prevent commission of the offense.[B] Model Penal Code – A police officer or private person is justified in using force uponanother if he believes that: (1) such other person is about to commit suicide, inflict seriousbodily injury upon herself, or commit a crime involving or threatening bodily injury, damageto or loss of property, or a breach of the peace; and (2) the force is immediately necessary toprevent the commission of the aforementioned act.§ 11.03 Crime Prevention; Deadly Force[A] Common and Statutory law – Deadly force may never be used in the prevention of amisdemeanor offense. Deadly force is permitted, however, in the prevention of a felony. Asplit of authority exists regarding the scope of the right to use deadly force in felony crimeprevention. The minority broadly permits a police officer or private person to use deadlyforce upon another if he reasonably believes that: (1) such other person is committing anyfelony (including nonviolent felonies); and (2) deadly force is necessary to preventcommission of the crime. Most states, however, limit the right to use deadly force to theprevention of “forcible” or “atrocious” felonies.31Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[B] Model Penal Code – A police officer or private person may not use deadly force toprevent the commission of a crime unless he believes that: (1) a substantial risk exists that thesuspect will cause death or serious bodily injury to another person unless he prevents thesuspect from committing the offense; and (2) use of deadly force presents no substantial riskof injury to bystanders. [MPC § 3.07(5)(a)(ii)(A)]§ 11.04 Effectuation of an Arrest; Non-deadly Force[A] Common Law – Non-deadly force to effectuate an arrest is permissible by a policeofficer or private citizen.[B] Model Penal Code – A police officer or private person is justified in using force uponanother to make or assist in making an arrest, or to prevent the suspect’s escape, if thedefendant:(1) believes that force is immediately necessary to effectuate a lawful arrest or toprevent the suspect’s escape; and(2a) makes known to such other person the purpose of the arrest; or(2b) believes that such other person understands the purpose of the arrest or that noticecannot reasonably be provided. [MPC §§ 3.07(1), 3.07(2)(a), 3.07(3)]§ 11.05 Effectuation of an Arrest; Deadly Force[A] Common Law[1] Police Officers – At early common law, police officers could use deadly force toapprehend a suspect even if such force was unnecessary. Today, most states impose a“necessity” requirement. Thus, a police officer is justified to use deadly force upon a suspectupon reasonable belief that: (1) the suspect committed a felony; and (2) such force isnecessary to make the arrest or to prevent the suspect from escaping. Generally, the rule withregard to arrest applies to all felonies; however, some jurisdictions also limit this rule toforcible or atrocious felonies.However, the rule has been modified and narrowed as a result of Tennessee v. Garner, [471U.S. 1 (1985)]. Here, an officer in pursuit of a suspect was “reasonably sure” that the suspectwas unarmed. The suspect began to climb the fence. After the officer called out “police, halt”and the suspect did not cease his flight, the officer shot him to prevent him from escaping,hitting him in the head and killing him. Although the officer’s use of deadly force wasjustified under state law, the Supreme Court found that the exercise of deadly force here wasunlawful since the suspect was apparently unarmed.The Court held that a police officer violates the Fourth Amendment prohibition onunreasonable searches and seizures if he uses deadly force to effectuate an arrest, unless: (1)he “has probable cause to believe that the suspect poses a significant threat of death orserious physical injury to the officer or others”; and (2) such force is necessary to make thearrest or prevent escape. In regard to the necessity element, a warning, if feasible, must begiven to the suspect before deadly force is employed. The first condition is satisfied “if the32Copyright ©

Nature of the Defense – Generally speaking, “necessity” is a residual justificationdefense, although it shares some characteristics with excuse defenses as well. It is a defenseof last resort as it legitimizes technically illegal conduct that common sense, principles ofjustice, and/or utilitarian concerns suggest is justifiable, but which is not specificallyaddressed by any other recognized justification defense.[B] Requirements of the Defense – Approximately one-half of states now statutorilyrecognize a necessity defense. Generally speaking, a person is justified in violating a criminallaw if the following six conditions are met:(1) The defendant must be faced with a clear and imminent danger.(2) There must be a direct causal relationship between the action and the harm to beaverted.(3) There must be no effective legal way to avert the harm.(4) The harm that the defendant will cause by violating the law must be less serious thanthe harm he seeks to avoid. The defendant’s actions are evaluated in terms of the harm thatwas reasonably foreseeable at the time, rather than the harm that actually occurred.(5) There must be no legislative intent to penalize such conduct under the specificcircumstances.(6) The defendant must come to the situation with “clean” hands, i.e., he must not havewrongfully placed himself in a situation in which he would be forced to commit thecriminal conduct.[C] Limitations on the rule – The availability of the necessity defense may be furtherlimited to:(1) emergencies created by natural forces;(2) non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)](3) protection of persons and property only, excluding for example, the protection ofreputation or economic interests.

Generally speaking, a person may be acquitted of any offense except murder if the criminalact was committed under the following circumstances:(1) Another person issued a specific threat to kill or grievously injure the defendant or athird party, particularly a near relative, unless he committed the offense;(2) The defendant reasonably believed that the threat was genuine;(3) The threat was “present, imminent, and impending” at the time of the criminal act;(4) There was no reasonable escape from the threat except through compliance with thedemands of the coercer; and(5) The defendant was not at fault in exposing himself to the threat.§ 13.02 Duress as a Defense to HomicideThe common law rule, expressly adopted by statute in some states, is that duress is not adefense to an intentional killing. A very few states recognize an “imperfect” duress defense,which reduces the offense to manslaughter. Courts are split on the availability of the duressdefense in felony-murder prosecutions.§ 13.03 Model Penal CodeDuress is an affirmative defense to unlawful conduct by the defendant if: (1) he wascompelled to commit the offense by the use, or threatened use, of unlawful force by thecoercer upon his or another person; and (2) a person of reasonable firmness in his situationwould have been unable to resist the coercion. [MPC § 2.09(1)] The defense is unavailableif the defendant recklessly placed himself in a situation in which it was probable that hewould be subjected to coercion. If he negligently placed himself in such a situation, however,the defense is available to him for all offenses except those for which negligence suffices toestablish culpability. [MPC § 2.09(2)].The Code’s duress defense is broader than the common law in various respects. First, itabandons the common law requirement that the defendant’s unlawful act be a response to animminent deadly threat. Second, the defense is one of general applicability, so the defensemay be raised in murder prosecutions.The Code defense is similar to the common law in two significant ways. First, the defense islimited to threats or use of “unlawful” force; therefore, it does not apply to coercionemanating from natural sources. Second, in conformity with the common law, the Code doesnot recognize the defense when any interest other than bodily integrity is threatened

• Voluntary intoxication does not excuse criminal conduct; however, in limitedcircumstances, intoxication may negate the necessary state of mind for a given offense andthus prove exculpatory. Intoxication resulting from alcoholism or drug addiction isconsidered voluntary under common law principles.[A] Mens Rea Defense – While there are several approaches to evaluating the mens reaportion of criminal activity involving an intoxicated defendant, the most common approachdistinguishes between general-intent and specific-intent crimes. Under this common lawapproach, voluntary intoxication is not a defense to general-intent crimes. Voluntaryintoxication is a defense to specific intent crimes.[B] Special Rule for Homicide – Two states, Virginia and Pennsylvania, limit the defenseof voluntary intoxication to first-degree murder prosecutions. In states that recognize thedefense in all specific-intent crimes, if the crime of “murder” is divided into degrees, adefendant may generally introduce evidence that his intoxication prevented him from beingable to form the requisite state of mind for first-degree murder.[C] Voluntary Act – Where a defendant’s intoxication was so severe as to render himunconscious at the time of the commission of the crime, some courts have barred a defensebased on unconsciousness if such condition resulted from the voluntary consumption ofalcohol or drugs. Others courts allow the defendant to argue that the criminal act was not avoluntary one due to his unconscious state, but only in defense to specific-intent offenses.[D] Intoxicated-Induced Insanity – The common law does not recognize a defense oftemporary insanity based on intoxication where the defendant’s intoxication was voluntary.Some jurisdictions do recognize a defense based on “fixed” insanity, a condition whichresults from long-term use of drugs or alcohol§ 14.02 Involuntary Intoxication[A] Definition – Intoxication is “involuntary” if the defendant is not to blame forbecoming intoxicated. It may result from:• coerced intoxication;• intoxication by innocent mistake as to the nature of the substance being consumed;• unexpected intoxication from a prescribed medication provided the defendant didnot purposely take more than the prescribed dosage; or• “pathological intoxication,” a temporary psychotic reaction, often manifested byviolence, which is triggered by consumption of alcohol by a person with a predisposingmental or physical condition, e.g., temporal lobe epilepsy, encephalitis, or a
• metabolic disturbance. The defense only applies if the defendant had no reason toknow that he was susceptible to such a reaction.[B] Availability of the Defense – Under common law, a defendant found to have beeninvoluntarily intoxicated may avail himself of the defense of temporary insanity.Furthermore, one who committed an offense while involuntarily intoxicated can otherwiseseek acquittal by asserting the mens rea defense.§ 14.03 Model Penal Code[A] General Rule – Model Penal Code § 2.08(4)–(5) distinguishes three types ofintoxication:(1) voluntary (“self-induced”) intoxication;(2) pathological intoxication; and(3) involuntary (“non-self-induced”) intoxication.[B] Exculpation Based on Intoxication[1] Mens Rea Defense – Any form of intoxication is a defense to criminal conduct if itnegates an element of the offense. [MPC § 2.08(1)] Since the Code does not distinguishbetween “general intent” and “specific intent” offenses, the mens rea defense is broadlyapplied, with one exception. In the case of crimes defined in terms of recklessness, a personacts “recklessly” as to an element of the crime if, as the result of the self-inducedintoxication, he was not conscious of a risk of which he would have been aware had he notbeen intoxicated. [MPC § 2.08(2)][2] Insanity – Pathological and involuntary intoxication are affirmatives defenses, ifthe intoxication causes the defendant to suffer from a mental condition comparable to thatwhich constitutes insanity under the Code. [MPC § 2.08(4)]

“Insanity” is a legal term that presupposes a medical illness or defect but is not synonymouswith “mental illness,” “mental disorder,” and “mental disease or defect.” “Mental illness” isa more encompassing term than “insanity,” and thus, a person can be mentally ill – medicallyspeaking – without legally being insane. Five tests of insanity have been applied at one timeor another.[A] M’Naghten Test – The M’Naghten rule focuses exclusively on cognitive disability.Under this rule, a person is insane if, at the time of the criminal act, he was laboring undersuch a defect of reason, arising from a disease of the mind, that he (1) did not know thenature and quality of the act that he was doing; or (2) if he did know it, he did not know thatwhat he was doing was wrong.This test requires total cognitive disability and does not allow for degrees of incapacity andnor does it recognize volitional incapacity in which a person is aware that conduct is wrongyet cannot control his behavior.[B] “Irresistible Impulse” Test – Some jurisdictions have broadened the scope ofM’Naghten to include mental illnesses that affect volitional capacity. Generally speaking, aperson is insane if, at the time of the offense:(1) he acted from an “irresistible and uncontrollable impulse”;(2) he was unable to choose between the right and wrong behavior;(3) his will was destroyed such that his actions were beyond his control.[C] Model Penal Code Test – The Model Penal Code provides that a person is notresponsible for his criminal conduct if, at the time of the conduct, as the result of a mentaldisease or defect, he lacked substantial capacity to:(1) appreciate the “criminality” (or “wrongfulness”) of his conduct; or(2) to conform his conduct to the requirements of the law.This test does not require total mental incapacity.[D] The Product (Durham) Test – This rule, now defunct, provided that a defendant’scriminal behavior may be excused if he was suffering from a mental disease or defect at thetime of the offense and the criminal conduct was the product of the mental disease or defect.[E] Federal Test – In 1984, Congress enacted a statutory definition of insanity applicableto federal criminal trials. [18 U.S.C. § 17(a) (2000)] The federal law provides that adefendant may be excused based on insanity if he proves by clear and convincing evidencethat, at the time of the offense, as the result of a severe mental disease or defect, he wasunable to appreciate: (1) the nature and quality of his conduct; or (2) the wrongfulness of hisconduct. This test requires complete cognitive incapacity

“Diminished capacity” refers to a defendant’s abnormal mental condition, short of insanity.There are two forms of diminished capacity: mens rea diminished capacity and “partialresponsibility” diminished capacity.§ 16.02 Mens Rea Defense[A] General Rule – Evidence of mental abnormality is not offered by the defendant topartially or fully excuse his conduct, but rather as evidence to negate an element of the crimecharged, almost always the mens rea element. In such circumstances, diminished capacitythus functions as a failure-of-proof defense.[B] Scope of Defense – States are divided regarding the extent to which evidence ofdiminished capacity may be introduced for the purpose of negating the mens rea of anoffense. States that follow the Model Penal Code [§ 4.02(1)] permit such evidence, whenrelevant, to negate the mens rea of any crime. Other states limit the admissibility of suchevidence to some or all specific-intent offenses. A third group bars “diminished capacity”evidence in prosecutions of all offenses. And some jurisdictions bar “diminished capacity”evidence in all prosecutions whether the crime at issue is “specific intent” or “general intent.”

General Rule – This form of diminished capacity partially excuses or mitigates adefendant’s guilt even if he has the requisite mens rea for the crime. It is recognized now inonly a few states, and only for the crime of murder, to mitigate the homicide to manslaughter.[B] The Model Penal Code Approach – The Model Penal Code provides that a homicidethat would otherwise constitute murder is manslaughter if it is committed as the result of“extreme mental or emotional disturbance for which there is a reasonable explanation orexcuse.” The reasonableness of the defendant’s explanation or excuse for the “extrememental or emotional disturbance” (EMED) is “determined from the viewpoint of a person inthe defendant’s situation under the circumstances as he believes them to be.”[MPC §210.3(1)(b)] At least two states appear to recognize the latter version of the defense.

General Approach – Many states follow the Model Penal Code in requiring proof ofmens rea for every element of the offense. Nevertheless, the common law’s two approachesto mistakes—depending on whether the offense charged is characterized as general-intent orspecific-intent—has endured.If the crime is one of strict liability, a mistake of fact is irrelevant. Otherwise, the first step inanalyzing a mistake-of-fact claim in a jurisdiction that follows common law doctrine is todetermine whether the nature of the crime of which the defendant has been charge is specificintentor general-intent.[B] Specific-Intent Offenses – A defendant is not guilty of an offense if his mistake offact negates the specific-intent portion of the crime, i.e., if he lacks the intent designated inthe definition of the offense, e.g., “knowingly,” “negligently,” “recklessly.”[C] General-Intent Offenses[1] Ordinary Approach: Reasonableness – The ordinary rule is that a person is not guiltyof a general-intent crime if his mistake of fact was reasonable, but he is guilty if his mistakewas unreasonable.[2] Moral-Wrong Doctrine – On occasion, courts apply the “moral wrong” doctrine,under which one can make a reasonable mistake regarding an attendant circumstance and yetmanifest a bad character or otherwise demonstrate worthiness of punishment. The rule isgenerally that there is no exculpation for mistakes where, if the facts had been as thedefendant believed them to be, his conduct would still be immoral.[3] Legal-Wrong Doctrine – A less extreme alternative to the moral-wrong doctrine is the“legal-wrong doctrine.” That rule provides for no exculpation for mistakes where, if the factswere as the defendant thought them to be, his conduct would still be “illegal.” Often thismeans that a defendant possessed the mens rea for committing a lesser offense, but the actusreus was associated with a higher offense. Under this doctrine, the defendant is guilty of thehigher offense in such circumstances.§ 17.02 Model Penal Code[A] General Rule – Section 2.04(1) provides that a mistake is a defense if it negates themental state required to establish any element of the offense.43Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[B] Exception to the Rule – The defense of mistake-of-fact is not available if thedefendant would be guilty of another offense, had the circumstances been as he supposed. Insuch cases, contrary to the common law, the Code only permits punishment at the level ofthe lesser offense. [MPC § 2.04(2)]

General PrincipleUnder both the common law and Model Penal Code, ignorance of the law excuses no one.Nevertheless, a number of doctrines apply when a defendant is ignorant or mistaken aboutthe law.§ 18.02 Reasonable-Reliance Doctrine (Entrapment by Estoppel)Under both the common law and Model Penal Code, a person is excused for committing acriminal offense if he reasonably relies on an official statement of the law, later determinedto be erroneous, obtained from a person or public body with responsibility for theinterpretation, administration, or enforcement of the law defining the offense.[A] “Official Statement” – For a statement of the law to be “official,” it must becontained in:(1) a statute later declared to be invalid;(2) a judicial decision of the highest court in the jurisdiction, later determined to beerroneous; or(3) an official, but erroneous, interpretation of the law, secured from a public officer incharge of its interpretation, administration, or enforcement, such as the Attorney Generalof the state or, in the case of federal law, of the United States.Even if a person obtains an interpretation of the law from a proper source, that interpretationmust come in an “official” manner, not an offhand or informal manner. For example, aperson may rely on an official “opinion letter” from the state Attorney General, formallyinterpreting the statute in question.[B] Exemptions to the Reasonable Reliance Doctrine[1] Reliance on One’s Own Interpretation of the Law – A person is not excused forcommitting a crime if he relies on his own erroneous reading of the law, even if a reasonableperson – even a reasonable law–trained person – would have similarly misunderstood thelaw.[2] Advice of Prosecutor – Although there is very little case law on the matter, there issome support for the proposition that a person may not reasonably rely on an interpretation ofa law provided by a local prosecuting attorney.[3] Advice of Private Counsel – Reliance on erroneous advice provided by a privateattorney is not a defense to a crime.§ 18.03 Fair Notice and the Lambert Principle45Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[A] Common Law – At common law, every one is presumed to know the law. However,in Lambert v. California [355 U.S. 225 (1957)], the Court overturned the petitioner’sconviction for failing to register with the city of Los Angeles as a prior convicted felon, asrequired pursuant to a strict liability ordinance of which he was unaware; the Court reversedon “lack of fair notice” due process grounds.The Supreme Court held in Lambert that, under very limited circumstances, a person who isunaware of a duly enacted and published criminal statute may successfully assert aconstitutional defense in a prosecution of that offense.Key to the court’s decision in Lambert was the passive nature of the offense. Namely, (1) itpunished an omission (failure to register); (2) the duty to act was imposed on the basis of astatus (presence in Los Angeles), rather than on the basis of an activity; and (3) the offensewas malum prohibitum. As a result of these factors, there was nothing to alert a reasonableperson to the need to inquire into the law.[B] Model Code – The Model Penal Code’s fair notice exception [MPC § 2.04(3)(a)]applies where:(1) a defendant does not believe that his conduct is illegal, and(2) the statute defining the offense is not known to him; and was “not published orotherwise reasonably made available” to him before he violated the law.§ 18.04 Ignorance or Mistake that Negates Mens Rea[A] Common Law[1] “Different Law” Approach – A defendant’s lack of knowledge of, ormisunderstanding regarding the meaning or application of, another law – usually, it will be anonpenal law – will negate the mens rea element in the definition of the criminal offense.When a defendant seeks to avoid conviction for a criminal offense by asserting a differentlawmistake, on the ground that the different-law mistake negates his mens rea, the firstmatter for determination is whether the offense charged is one of specific-intent, generalintent,or strict-liability.[2] Specific-Intent Offenses – A different-law mistake, whether reasonable orunreasonable, is a defense in the prosecution of a specific-intent offense, if the mistakenegates the specific intent in the prosecuted offense.[3] General-Intent Offenses – Although there is very little case law on point, a differentlawmistake, whether reasonable or unreasonable, apparently is not a defense to a generalintentcrime.[4] Strict-Liability Offenses – A different-law mistake is never a defense to a strictliabilityoffense.46Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[B] Model Penal Code – MPC § 2.04(1) provides that mistake or ignorance of the law is adefense if it negates a material element of the offense. Application of this defense generallysurfaces in cases of a different-law mistake.

Overview to Inchoate ConductActivity that occurs after the formation of the mens rea but short of attainment of thecriminal goal is described as “inchoate” – imperfect or incomplete – conduct. The mostcommon of these offenses are attempt, solicitation, and conspiracy. Inchoate crimes aretypically treated as a lesser offense than the substantive crime.§ 19.02 Model Penal Code[A] Punishment – In a significant departure from common law tradition, the Codeprovides for punishment of the inchoate offenses at the same level as the substantive crime,with the exception of crimes that carry a maximum penalty of life imprisonment (“felonies ofthe first degree”). [MPC § 5.05(1)] An attempt, solicitation, or conspiracy to commit one ofthese crimes constitutes a felony of the second degree. [MPC § 5.05(1)][B] Special Mitigation – The Code grants the trial judge authority to dismiss a prosecutionof an inchoate offense, or to impose a sentence for a crime of a lower degree than isotherwise allowed, if the defendant’s conduct was so inherently unlikely to result in a crimethat neither he nor his conduct represents a danger to society justifying his conviction andpunishment at ordinary level. [MPC § 5.05(2)

20.01 Attempt, GenerallyA criminal attempt occurs when a person, with the intent to commit an offense, performs anyact that constitutes a substantial step toward the commission of that offense. Criminalattempts are of two varieties: “complete” (but “imperfect”); and “incomplete.” A complete,but imperfect, attempt occurs when the defendant performs all of the acts that he set out todo, but fails to attain his criminal goal. In contrast, an incomplete attempt occurs when thedefendant does some of the acts necessary to achieve the criminal goal, but he quits or isprevented from continuing, e.g., a police officer arrives before completion of the attempt.§ 20.02 Mens Rea of Criminal Attempts[A] General Rule – The defendant must intentionally commit the acts that constitute theactus reus of an attempt, i.e., acts that bring him in proximity to commission of a substantiveoffense or which otherwise constitute a substantial step in that direction, and he must performthese acts with the specific intention of committing the target crime. An attempt is a specificintentoffense, even if the substantive crime is a general-intent offense.[B] “Result” Crimes – When the target crime is a “result” crime, the general rule is that aperson is not guilty of an attempt unless his actions in furtherance of the target crime arecommitted with the specific purpose of causing the unlawful result.§ 20.03 Actus Reus of Criminal AttemptsCourts have developed a number of tests to determine the point at which a defendant passesbeyond the preparation stage and consummates the criminal attempt.(1) “Last act” test – an attempt occurs at least by the time of the last act but this testdoes not necessarily require that each and every act be performed on every occasion.(2) “Physical proximity” test – the defendant’s conduct need not reach the last act butmust be “proximate” to the completed crime.(3) “Dangerous proximity” test – an attempt occurs when the defendant’s conduct is in“dangerous proximity to success,” or when an act “is so near to the result that the danger ofsuccess is very great.”(4) “Indispensable element” test – an attempt occurs when the defendant has obtainedcontrol of an indispensable feature of the criminal plan.(5) “Probable desistance” test – an attempt occurs when the defendant has reached apoint where it was unlikely that he would have voluntarily desisted from his effort tocommit the crime.(6) “Unequivocality” (or res ipsa loquitur) test – an attempt occurs when a person’sconduct, standing alone, unambiguously manifests his criminal intent.§ 20.04 Defense of Impossibility49Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[A] General Rule – At common law, legal impossibility is a defense; factual impossibilityis not. However, today, most jurisdictions no longer recognize legal impossibility as adefense.[B] Factual Impossibility – “Factual impossibility” exists when a person’s intended resultconstitutes a crime, but he fails to consummate the offense because of an attendantcircumstance unknown to him or beyond his control. Examples of factual impossibility are apickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed wherethe intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at aperson.[C] “Inherent” Factual Impossibility – Although largely academic, the doctrine ofinherent factual impossibility has been recognized as a statutory defense in at least one state(Minnesota). Where recognized, the defense applies if the method to accomplish the crimewas one that a reasonable person would view as inadequate to accomplish the criminalobjective.[D] Pure Legal Impossibility – “Pure legal impossibility” arises when the law does notproscribe the result that the defendant seeks to achieve.[E] Hybrid Legal Impossibility – Hybrid legal impossibility (or “legal impossibility”)exists if the defendant’s goal is illegal, but commission of the offense is impossible due to afactual mistake (and not simply a misunderstanding of the law) regarding the legal status ofan attendant circumstance that constitutes an element of the charged offense, e.g., receivingunstolen property under the belief that such property was stolen, or shooting a corpsebelieving it is alive. Today, most states have abolished the defense of hybrid legalimpossibility on the theory that a defendant’s dangerousness is plainly manifested in suchcases.§ 20.05 Defense: AbandonmentMany courts do not recognize the defense of abandonment. Where recognized, it appliesonly if the defendant voluntarily and completely renounces his criminal purpose.Abandonment is not voluntary if the defendant is motivated by unexpected resistance, theabsence of an instrumentality essential to the completion of the crime, or some othercircumstance that increases the likelihood of arrest or unsuccessful consummation of theoffense, or if the defendant merely postpones the criminal endeavor until a better opportunitypresents itself.§ 20.06 Model Penal Code[A] Elements of the Offense – Generally speaking, a criminal attempt under the Codecontains two elements: (1) the purpose to commit the target offense; and (2) conductconstituting a “substantial step” toward the commission of the target offense.

General Principles[A] Actus Reus – The actus reus of a solicitation takes place when one person invites,requests, commands, hires, or encourages another to commit a particular offense. For asolicitation to occur, neither the solicitor nor the solicited party needs to perform any act infurtherance of the substantive crime. The solicitation is complete upon communication of thesolicitation to another.[B] Mens Rea – Common law solicitation is a specific-intent crime. A person is not guiltyof solicitation unless he intentionally commits the actus reus of the inchoate offense, i.e., heintentionally invites, requests, commands, hires, or encourages another to commit a crime,with the specific intent that the other person consummate the target crime.[C] Relationship of the Solicitor to the Solicited Party – At common law, no solicitationoccurs if the solicitor intends to commit the substantive offense himself, but requestsassistance by another.§ 21.02 Model Penal Code[A] Generally – The Model Penal Code provides that a person is guilty of solicitation tocommit a crime if:(1) his purpose is to promote or facilitate the commission of a substantive offense; and(2) with such purpose, he commands, encourages or requests another person to engage inconduct that would constitute the crime, an attempt to commit it, or would establish theother person’s complicity in its commission or attempted commission. [MPC § 5.02(1)]Prior to the enactment of the Code, most state penal statutes did not provide for solicitationgenerally and instead proscribed solicitation of specific offenses. As a result of the Code’sinfluence, many states today have solicitation statutes that apply to all crimes, or alternativelyall felonies.Unlike at common law, under the Code, the relationship of the solicitor to the solicited partyneed not be that of accomplice to perpetrator.[B] Renunciation – The Model Code establishes a defense to solicitation of “renunciationof criminal purpose.” A person is not guilty of solicitation if he:(1) completely and voluntarily renounces his criminal intent; and(2) either persuades the solicited party not to commit the offense or otherwise preventshim from committing the crime.[MPC § 5.02(3)]

General PrincipleGenerally speaking, a conspiracy is an agreement by two or more persons to commit acriminal act or series of criminal acts, or to accomplish a legal act by unlawful means.[A] The Agreement[1] Common law – At common law, a conspiracy need not be based on an expressagreement. Furthermore, an agreement can exist although not all of the parties to it haveknowledge of every detail of the arrangement, as long as each party is aware of its essentialnature. [Blumenthal v. United States, 332 U.S. 539, 557–58 (1947)] Moreover, a “conspiracymay exist even if a conspirator does not agree to commit or facilitate each and every part ofthe substantive offense.”[Salinas v. United States, 522 U.S. 52, 63 (1997)] It is enough thateach person agrees, at a minimum, to commit or facilitate some of the acts leading to thesubstantive crime.[2] Model Penal Code – Four types of agreement fall within the definition of conspiracy.A person is guilty of conspiracy if he agrees to:(1) commit an offense;(2) attempt to commit an offense;(3) solicit another to commit an offense; or(4) aid another person in the planning or commission of the offense.[B] Overt Act[1] Common and Statutory Law – A common law conspiracy is complete uponformation of the unlawful agreement. No act in furtherance of the conspiracy need be proved.[United States v. Shabani, 513 U.S. 10, 13 (1994)]Today, many statutes require proof of the commission of an overt act in furtherance of theconspiracy. In jurisdictions requiring an overt act, the act need not constitute an attempt tocommit the target offense. Instead, any act (and perhaps an omission), no matter how trivial,is sufficient, if performed in pursuance of the conspiracy. A single overt act by any party to aconspiracy is sufficient basis to prosecute every member of the conspiracy, including thosewho may have joined in the agreement after the act was committed. Most states apply theovert-act rule to all crimes.[2] Model Penal Code – The Code’s requirement of proof of an overt act only applies tocases involving a misdemeanor or a felony of the third degree. [MPC § 5.03(5)][C] “Plurality” Requirement53Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[1] Common Law – Common law conspiracy requires proof that at least two personspossessed the requisite mens rea of a conspiracy. For example, no conspiracy conviction ispossible if one of the two persons is an undercover agent feigning agreement, or lacks thecapacity to form the agreement due to mental illness.[2] Model Penal Code; Majority Rule – The Model Code departs significantly from thecommon law by establishing a unilateral approach to conspiracy liability. The Code focuseson the culpability of the defendant whose liability is in issue, rather than on that of the largerconspiratorial group. Specifically, the Code provides, “A person is guilty of conspiracy withanother person” if “he agrees with such other person” to commit an offense. The unilateralapproach has been adopted in most states.§ 22.02 Mens Rea[A] In General[1] Common law – Common law conspiracy is a specific-intent offense, requiring that twoor more persons: (1) intend to agree; and (2) intend that the object of their agreement beachieved. Absence of either intent renders the defendants’ conduct non-conspiratorial.However, courts are divided over the interpretation of “intent.” Some require that the partieshave the unlawful result as their purpose and others allow conviction for conspiracy based onthe parties’ mere knowledge that such result would occur from their conduct.[2] Model Penal Code – The Code specifically provides that the conspiratorial agreementmust be made “with the purpose of promoting or facilitating” the commission of thesubstantive offense. Thus, in jurisdictions following the Code, a conspiracy does not exist ifone is aware of, but fails to share, another person’s criminal purpose.[B] Corrupt-Motive Doctrine – Some common law jurisdictions apply what has come tobe known as the “corrupt motive doctrine.” This doctrine states that in addition to the usualmens rea requirements of conspiracy (i.e., intent to agree, and intent to commit thesubstantive offense), the parties to a conspiracy must also have a corrupt or wrongful motivefor their actions.The Model Penal Code does not recognize the corrupt-motive doctrine.§ 22.03 Parties to a Conspiracy[A] Liability of Parties for Substantive Offenses – Each party to a conspiracy is liablefor every offense committed by every other conspirator in furtherance of the unlawfulagreement. Thus, an important issue in conspiracy trials may be to determine the preciseconfines of a conspiratorial enterprise.[B] Overt-Act Requirement – The structure of a conspiracy is critical in jurisdictionsrecognizing an overt-act requirement. In these jurisdictions, an act of one conspirator in54Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.furtherance of the agreement renders a prosecution permissible against every other party tothe same agreement.[C] Common Law Analysis[1] In General – To be regarded as a co-conspirator, a person does not need to know theidentity, or even of the existence, of every other member of the conspiracy, nor must heparticipate in every detail or event of the conspiracy. However, to be a co-conspirator hemust have a general awareness of the scope and the objective of the criminal enterprise.[2] Wheel Conspiracies – A “wheel” conspiracy is characterized by a central figure orgroup (“the hub”) that engages in illegal dealings with other parties (“the spokes”) and thereexists a shared criminal purpose among all spokes and the hub. Parallel but separateobjectives between similarly situated people do not make a wheel conspiracy (instead thiswould constitute multiple chain conspiracies).In Kotteakos v. United States, 328 U.S. 750 (1946), a broker obtained fraudulent loans fromthe government for thirty-one people. All were tried under a theory of “wheel” conspiracy.However, evidence at trial demonstrated that the loan recipients were part of eight or moreindependent groups, none of which had any connection with any other group except that eachused the same broker. Absent a single shared objective, the parties constituted eight or morechain conspiracies and not a single wheel conspiracy.[3] Chain Conspiracies – Chain conspiracies ordinarily involve a criminal enterprise thatcannot thrive unless each link successfully performs its part in the arrangement. InBlumenthal v. United States, 332 U.S. 539 (1947), the owner of a liquor wholesale agencydistributed whiskey through two men, Weiss and Goldsmith, who arranged with Feigenbaumand Blumenthal to sell the whiskey to local tavern owners at a price in violation of the law.The Supreme Court held that the prosecutor’s charge of a single conspiracy was proper,finding that each salesman “by reason of [his] knowledge of the plan’s general scope, if notits exact limits, sought a common end, to aid in disposing of the whiskey.”An opposite conclusion was reached in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938).Peoni sold a small quantity of counterfeit money to Regno, who in turn sold the money toDorsey, who passed the money in commerce to innocent persons. No common interest wasfound between Peoni and Dorsey, and thus the court concluded that there existed twoindependent conspiracies, one between Peoni and Regno and another between Regno andDorsey.[D] Model Penal Code – In addition to §5.03(1), which sets forth a unilateral approach toconspiracy, §5.03(2) provides that if a person “knows that a person with whom he conspiresto commit a crime has conspired with another person or persons to commit the same crime,he is guilty of conspiring with such other person or persons, whether or not he knows theiridentity, to commit such crime.”55Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.The Model Penal Code provides that a person with multiple criminal objectives is guilty ofonly one conspiracy if the multiple objectives are:(1) part of the same agreement; or(2) part of a continuous conspiratorial relationship. [MPC § 5.03(3)]§ 22.04 Relationship to Target Offense[A] General rule[1] Common Law and Non-Model Penal Code Statutes – At common law, a conspiracyto commit a felony or a misdemeanor was a misdemeanor. Under modern statutory law, theseriousness of the crime of conspiracy varies. Some states continue to treat all conspiracies,regardless of the seriousness of their objectives, as misdemeanors. More often, however, thesanction for conspiracy corresponds to the contemplated crime so that conspiracy to commita felony is graded as a felony, and conspiracy to commit a misdemeanor is a misdemeanor. Inmost states, a conspiracy to commit a felony is punished less severely than the targetoffense.[2] Model Penal Code – As with other inchoate offenses, the Model Penal Code sanctionsa conspiracy to commit any crime other than a felony of the first degree at the same level asthe target offense. [MPC § 5.05(1)] If a conspiracy has multiple objectives, e.g., to rape andto steal, the conspiracy is graded on the basis of the most serious target offense.[B] Punishment When the Target Offense is Committed[1] Common Law – Unlike the crimes of attempt and solicitation, the offense ofconspiracy does not merge into the attempted or completed offense that was the object of theconspiracy. [Callanan v. United States, 364 U.S. 587, 593–94 (1961)][2] Model Penal Code – The Code merges a conspiracy with the object of the conspiracyor an attempt to commit the target offense, unless the prosecution proves that the conspiracyinvolved the commission of additional offenses not yet committed or attempted. [MPC§1.07(1)(b)]§ 22.05 Defenses[A] Impossibility[1] Common Law – The majority, but not universal, rule is that neither factualimpossibility nor legal impossibility is a defense to a criminal conspiracy.[2] Model Penal Code – The Model Penal Code does not recognize a defense of factual orhybrid legal impossibility in conspiracy cases. [MPC § 5.03(1)][B] Abandonment56Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[1] Common Law – The crime of conspiracy is complete the moment the agreement isformed or, in some jurisdictions, once an overt act is committed in furtherance of a criminalobjective. However, if a person withdraws from a conspiracy, he may avoid liability forsubsequent crimes committed in furtherance of the conspiracy by his former co-conspiratorsif he communicated his withdrawal to each co-conspirator.[2] Model Penal Code – The Model Code’s abandonment defense to the crime ofconspiracy is more onerous than that of the common law as it requires the conspirator to notonly renounce his criminal purpose but to also thwart the success of the conspiracy undercircumstances demonstrating a complete and voluntary renunciation of his criminal intent.[C] Wharton’s Rule – An agreement by two persons to commit an offense that bydefinition requires the voluntary concerted criminal participation of two persons – e.g.,adultery, bigamy, incest, receipt of a bribe – cannot be prosecuted as a conspiracy.Wharton’s Rule does not apply if more than the minimum number of persons necessary tocommit an offense agree to commit the crime or if the two persons involved in the conspiracyare not the two people involved in committing the substantive offense.The Model Penal Code does not recognize Wharton’s Rule.[D] Legislative-Exemption Rule[1] Common Law – A person may not be convicted of conspiracy to violate an offense ifhis conviction would frustrate a legislative purpose to exempt him from prosecution for thesubstantive crime.[2] Model Penal Code – Unless the legislature otherwise provides, a person may not beprosecuted for conspiracy to commit a crime under the Model Code if he would not be guiltyof the consummated substantive offense: (1) under the law defining the crime; or (2) as anaccomplice in its commission. A person is not guilty as an accomplice in the commission ofan offense if he was the victim of the prohibited conduct, or if his conduct was “inevitablyincident to its commission.” [MPC § 2.06(6)(a)–(b)]

Common law – One is an accomplice in the commission of an offense if heintentionally assists another to engage in the conduct that constitutes the crime. Accompliceactivity may include aiding, abetting, encouraging, soliciting, advising, and procuring thecommission of the offense.Accomplice liability is derivative in nature. In general, the accomplice may be convicted ofany offense committed by the primary party with the accomplice’s intentional assistance.Most jurisdictions extend liability to any other offense that was a natural and probableconsequence of the crime solicited, aided or abetted.[B] Model Penal Code – The Code rejects the common law natural-and-probableconsequencesrule. Thus, an accomplice may only be held liable under the Code for acts thathe purposefully commits.§ 23.02 Parties to the Complicity[A] Principal in the First Degree – A “principal in the first degree” is one who, with themens rea required for the commission of the offense: (1) physically commits the acts thatconstitute the offense; or (2) commits the offense by use of an “innocent instrumentality” or“innocent human agent.” The innocent-instrumentality rule provides that a person is theprincipal in the first degree if, with the mens rea required for the commission of the offense,he uses a non-human agent (e.g., a trained dog) or a non-culpable human agent to commit thecrime.[B] Principal in the Second Degree – A “principal in the second degree” is one whointentionally assisted in the commission of a crime in the presence, either actual orconstructive, of the principal in the first degree. A person is “constructively” present if he issituated in a position to assist the principal in the first degree during the commission of thecrime, e.g., serving as a “lookout” or “getaway” driver outside a bank that the principal in thefirst degree robs.[C] Accessory Before the Fact – An “accessory before the fact” is one who is not actuallyor constructively present when the crime is committed; often such person solicits, counsels,or commands (short of coercing) the principal in the first degree to commit the offense.[D] Accessory After the Fact – An “accessory after the fact” is one who, with knowledgeof another’s guilt, intentionally assists him to avoid arrest, trial, or conviction The conduct ofthe accessory after the fact occurs after the completion of the crime. If an accomplice isinvolved prior to the completion, i.e., up to the point when the principal in the first degreehas reached a place of temporary safety, the accomplice is in fact a principal in the second58Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.degree. Today, nearly all jurisdictions treat the offense of accessory after the fact as separatefrom, and often less serious than, the felony committed by the principal in the first degree.§ 23.03 Acts Giving Rise to Accomplice Liability[A] Common Law[1] Types of Assistance – An accomplice is a person who, with the requisite mens rea,assists the primary party in committing an offense. Generally speaking, there are three basictypes of assistance:(1) assistance by physical conduct (e.g., furnishing an instrumentality to commit anoffense, “casing” the scene in advance, locking the door to keep an assault victim fromescaping, or driving a “getaway” car from the scene of the crime);(2) assistance by psychological influence (e.g., incitement, solicitation, orencouragement); and(3) assistance by omission (if there exists a duty to act). A person is not an accomplicesimply because he knowingly fails to prevent the commission of an offense, but suchfailure to act may serve as a critical factor in determining that he assisted by psychologicalinfluence.[2] Amount of Assistance Required – A person is not an accomplice unless his conduct(or omission) in fact assists in the commission of the offense. However, the degree of aid orinfluence provided is immaterial; even trivial assistance suffices. Furthermore, a secondaryparty is accountable for the conduct of the primary party even if his assistance was causallyunnecessary to the commission of the offense.[3] The Pinkerton Doctrine – In Pinkerton v. United States, 328 U.S. 640 (1946), twoparties conspired to violate certain provisions of the Internal Revenue Code and thereafter,while one co-conspirator was in prison for unrelated reasons, the other carried out the plan.Emerging from this case is the “Pinkerton doctrine” under which a party to a conspiracy isresponsible for any criminal act committed by an associate if it:(1) falls within the scope of the conspiracy; or(2) is a foreseeable consequence of the unlawful agreement.[B] Model Penal Code – A person is guilty of an offense if he commits it “by his ownconduct or by the conduct of another person for which he is legally accountable, or both.”Accomplice liability is founded on:(1) Accountability through an innocent instrumentality – The Code explicitly providesthat the innocent-instrumentality doctrine applies only if one causes another to engage inthe conduct in question.(2) Accomplice accountability – One is an accomplice if, with the requisite mens rea, hesolicits, aids, agrees to aid, or attempts to aid in the planning or commission of the offense,59Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.or has a legal duty to prevent the commission of the offense, but makes no effort to do so.[MPC § 2.06(2), (3)(a)](3) Miscellaneous accountability – Legislatures may enact special laws of accompliceliability, e.g., prohibiting the aiding and abetting of a suicide attempt, [MPC § 210.5(2)] orcriminalizing the knowing facilitation of a prison escape. [MPC § 242.6]The Model Code rejects the Pinkerton doctrine of conspiratorial liability. Thus, a person isnot accountable for the conduct of another solely because he conspired with that person tocommit an offense. The liability of one who does not personally commit an offense must bebased on accountability through an innocent instrumentality, accomplice accountability, ormiscellaneous accountability.§ 23.04 Mens Rea in Complicity Offenses[A] Common and Statutory Law[1] “Intent” – The mens rea of accomplice liability is usually described in terms of“intention.” As with the crime of conspiracy, however, there is considerable debate regardingwhether a person may properly be characterized as an accomplice if he knows that hisassistance will aid in a crime, but he lacks the purpose that the crime be committed. Mostcourts, however, hold that a person is not an accomplice in the commission of an offenseunless he shares the criminal intent with the principal.[2] Recklessness and Negligence – Although courts and statutes frequently express theculpability requirement for accomplice liability in terms of “intent,” the majority rule is thataccomplice liability may nevertheless attach in cases of crimes involving recklessness ornegligence.[B] Model Penal Code – The Code person resolves the common law ambiguity as towhether complicity requires purpose or mere knowledge of the consequences of theirconduct. Under the Code, accomplice liability exists only if one assists “with the purpose ofpromoting or facilitating the commission of the offense.” [MPC § 2.06(3)(a)]Accomplice liability may also be found in cases involving recklessness or negligence whencausing a particular result is an element of a crime:(1) he was an accomplice in the conduct that caused the result; and(2) he acted with the culpability, if any, regarding the result that is sufficient forcommission of the offense. [MPC § 2.06(4)]§ 23.05 Liability of the Secondary Party In Relation to the Primary Party[A] Common Law – At common law, an accessory could not be convicted of the crime inwhich he assisted until the principal was convicted and, with the limited exception ofcriminal homicide, could not be convicted of a more serious offense or degree of offense thanthat of which the principal was convicted.60Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[B] Modern Rule – Today, the majority rule is that a conviction (or even a prosecution)of the principal in the first degree is not a prerequisite to the conviction of a secondaryparty. Non-prosecution of the principal might result from any one of numerous factorsextraneous to his guilt (e.g., death, flight from the jurisdiction, or immunity fromprosecution), and thus, does not in itself prove that a crime did not occur.Furthermore, even if the principal is prosecuted but acquitted on the basis of an excusedefense, his acquittal should not bar a prosecution and conviction of a secondary party towhom the excuse does not extend. An acquittal on the ground of an excuse means that theactions of the primary party were wrongful, but that he was not responsible for them becauseof the excusing condition. However, since accomplice liability is derivative, there must beproof at the accomplice’s trial of the principal’s guilt.An accomplice or accessory may be convicted of a more serious offense than is provedagainst the primary party.[C] Model Penal Code – An accomplice in the commission of an offense may beconvicted of a crime, upon proof of its commission by another person, regardless of whetherthe other person is convicted, acquitted, or prosecuted. Furthermore, an accomplice may beconvicted of a different offense or different degree of offense than is the primary party.[MPC § 2.06(7)] The Code also expressly provides that a person who is legally incapable ofcommitting an offense personally may be held accountable for the crime if it is committed byanother person for whom he is legally accountable. [MPC § 2.06(5)]§ 23.06 Limits to Accomplice Liability[A] Common Law[1] Legislative-Exemption Rule – A person may not be prosecuted as an accomplice inthe commission of a crime if he is a member of the class of persons for whom the statuteprohibiting the conduct was enacted to protect. For example, in a case of statutory rape, anunderage female who engages in sexual intercourse cannot be prosecuted as a secondaryparty to her own statutory rape since the law was enacted to protect young females fromimmature decisions regarding sex.[2] Abandonment – As with the law of conspiracy, many courts hold that a person whoprovides assistance to another for the purpose of promoting or facilitating the offense, butwho subsequently abandons the criminal endeavor, can avoid accountability for thesubsequent criminal acts of the primary party. The accomplice must do more thanspontaneously and silently withdraw from the criminal activity. He must communicate hiswithdrawal to the principal and attempt to neutralize the effect of his prior assistance.[B] Model Penal Code – A person is not an accomplice in the commission of an offenseif:(1) he is the victim of the offense; or61Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(2) his conduct is “inevitably incident” to the commission of the offense; or(3) he terminates his participation before the crime is committed, and he:(a) neutralizes his assistance;(b) gives timely warning to the police of the impending offense; or(c) attempts to prevent the commission of the crime

Common Law and Statutory Homicide – At very early common law, “homicide”was defined as “the killing of a human being by a human being.” This definition includedsuicide. However, modern law defines “homicide” as “the killing of a human being byanother human being.” Suicide, therefore, is no longer a form of homicide in most statutes.Homicide is divided into two crimes – murder and manslaughter.[1] “Human Being” – The common law and majority approaches define the beginning oflife as birth for purposes of interpreting the criminal homicide law. A minority of states nowtreat a viable – or, at times, even nonviable – fetus as a human being under the homicidestatute.Regarding the end of human life, a majority of states, either by statute or judicial decision,have incorporated “brain death” in their definition of “death.”[2] “Murder” – The common law definition of “murder” is “the killing of a human beingby another human being with malice aforethought.”[3] “Manslaughter” – Manslaughter is “an unlawful killing of a human being by anotherhuman being without malice aforethought.”[4] “Malice” – As the term has developed, a person kills another acts with the requisite“malice” if he possesses any one of four states of mind:(1) the intention to kill a human being;(2) the intention to inflict grievous bodily injury on another;(3) an extremely reckless disregard for the value of human life; or(4) the intention to commit a felony during the commission or attempted commission ofwhich a death results.[B] Model Penal Code – A person is guilty of criminal homicide under the Model Code ifhe unjustifiably and inexcusably takes the life of another human being [MPC § 210.0(1)]purposely, knowingly, recklessly, or negligently. [MPC § 210.1(1)] The Code recognizesthree forms of criminal homicide: murder, manslaughter, and (unlike the common law)negligent homicide.§ 24.02 Murder[A] Degrees of Murder – At common law, there were no degrees of murder, and murderwas a capital offense. Reform of the common law has resulted in the division of murder intodegrees, with only murder in the first degree being a capital offense.The Model Penal Code rejects the degrees-of-murder approach.63Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[B] Intent to Kill[1] “Deliberate and Premeditated” – Typically, a murder involving the specific intent tokill is first-degree murder in jurisdictions that grade the offense by degrees if the homicidewas also “deliberate” and “premeditated.”[2] “Wilful, Deliberate, Premeditated” – Nearly all states that grade murder by degreesprovide that a “wilful, deliberate, premeditated” killing is murder in the first degree.[3] “Intent to Inflict Grievous Bodily Injury” – Malice aforethought is implied if aperson intends to cause grievous bodily injury to another, but death results. In states thatgrade murder by degree, this form of malice nearly always constitutes second-degree murder.[4] Extreme Recklessness (“Depraved Heart” Murder) – Malice aforethought isimplied if a person’s conduct manifests an extreme indifference to the value of human life. Instates that separate murder into degrees, this type of murder almost always constitutessecond-degree murder.[C] Model Penal Code – A homicide is murder if the defendant intentionally takes a life,or if he acts with extreme recklessness (i.e., depraved heart murder).§ 24.03 Felony-Murder[A] Common Law – At common law, a person is guilty of murder if he kills anotherperson during the commission or attempted commission of any felony. Nearly every stateretains the felony-murder rule.[B] Statutory Law – Under most modern murder statutes, a death that results from thecommission of an enumerated felony (usually a dangerous felony, such as arson, rape,robbery, or burglary) constitutes first-degree murder for which the maximum penalty is deathor life imprisonment. If a death results from the commission of an unspecified felony, it issecond-degree murder. The felony-murder rule authorizes strict liability for a death thatresults from commission of a felony.[C] Model Penal Code – The Code also provides for felony-murder by setting forth thatextreme recklessness (and, thus, murder) is presumed if the homicide occurs while thedefendant is engaged in, or is an accomplice in, the commission, attempted commission, orflight from one of the dangerous felonies specified in the statute. [MPC § 210.2(1)(b)]§ 24.04 Limits on the Felony-Murder Rule[A] Inherently-Dangerous-Felony Limitation – Many states limit the rule to homicidesthat occur during the commission of felonies which by their nature are dangerous to humanlife, e.g., armed robbery.64Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[B] Independent Felony (or Merger) Limitation – Most states recognize some form of“independent felony” or “collateral felony” limitation. That is, the felony-murder rule onlyapplies if the predicate felony is independent of, or collateral to, the homicide. If the felony isnot independent, then the felony merges with the homicide and cannot serve as the basis for afelony-murder conviction. For example, most jurisdictions hold that felonious assault maynot serve as the basis for felony-murder.[C] Res Gestae Requirement – A requirement of the felony-murder rule is that thehomicide must occur “within the res gestae [things done to commit] of the felony,” whichrequires both:(1) temporal and geographical proximity – There must be a close proximity in terms oftime and distance between the felony and the homicide. The res gestae period begins whenthe defendant has reached the point at which he could be prosecuted for an attempt tocommit the felony, and it continues at least until all of the elements of the crime arecompleted. Most courts provide that the res gestae of a felony continues, even aftercommission of the crime, until the felon reaches a place of temporary safety.(2) a causal relationship between the felony and the homicide.[D] Killing by a Non-Felon[1] The “Agency” Approach – A majority of states that have considered the issue applythe so-called “agency” theory of felony murder, which precludes any killing committedduring the commission of the felon by a person other that the defendant or his accomplicesfrom serving as the basis for felony-murder. However, a killing by an accomplice can beimputed to others involved in the commission of the felony so that felony-murder can becharged against the non-killers.[2] “Proximate Causation” Approach – A minority of courts apply the “proximatecausation” theory of felony-murder under which a felon is liable for any death proximatelyresulting from the felony, whether the killer is a felon or a third party.[3] “Provocative Act” Doctrine – A felon may be held responsible for the death ofanother at the hands of a third party, if the basis for the charge is not felony-murder, butinstead is founded on what is sometimes termed the “provocative act” doctrine, which issimply a form of reckless homicide, e.g., a felon recklessly provokes a victim to shoot in selfdefense,killing an innocent bystander.§ 24.05 Manslaughter[A] Forms of Manslaughter – Traditionally, three types of unlawful killings constitutemanslaughter:(1) an intentional killing committed in “sudden heat of passion” as the result of“adequate provocation” (voluntary manslaughter);65Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(2) an unintentional killing resulting from the commission of a lawful act done in anunlawful manner (involuntary manslaughter). This is akin to criminally negligenthomicide.(3) an unintentional killing that occurs during the commission or attempted commissionof an unlawful act (involuntary manslaughter). This type of manslaughter is sometimesdubbed “unlawful-act manslaughter,” or if the killing occurred during the commission ofa non-felony, “misdemeanor-manslaughter.”[B] Provocation (“Sudden Heat of Passion”)[1] Elements of the Mitigating Factor – Under common law principles, an intentionalhomicide committed in “sudden heat of passion” as the result of “adequate provocation”mitigates the offense to voluntary manslaughter. The common law defense contains fourelements:(1) The defendant must have acted in heat of passion at the moment of the homicide.“Passion” has been interpreted to include any violent or intense emotion such as fear,jealousy, and desperation.(2) The passion must have been the result of adequate provocation. Under the modernapproach, it is up to the jury to determine what constitutes adequate provocation. Juries insuch cases are typically instructed to apply an objective “reasonable-person” standard.(3) The defendant must not have had a reasonable opportunity to cool off.(4) There must be a causal link between the provocation, the passion, and the homicide.[2] Words as Adequate Provocation – Surviving from the common law in most non-Model Penal Code jurisdictions is the rule that words alone do not constitute adequateprovocation. However, a few courts allow the defense to be raised in the case ofinformational, but not insulting, words. Other courts have held open the possibility thatinsulting words may qualify in extreme circumstances. The “words alone” rule does notapply in jurisdictions following the Model Penal Code.[C] Unlawful-Act (Misdemeanor-Manslaughter) – An accidental homicide that occursduring the commission of an unlawful act not amounting to a felony (or, at least, notamounting to felony that would trigger the felony-murder rule) constitutes involuntarymanslaughter. This may be termed “misdemeanor-manslaughter” or “unlawful-actmanslaughter.”The scope of the doctrine varies widely by jurisdiction. Some courts limit its applicability toinherently dangerous misdemeanors while others apply the doctrine to all misdemeanors.[D] Model Penal Code[1] In General – A person is guilty of manslaughter if he:(1) recklessly kills another; or66Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(2) kills another person under circumstances that would ordinarily constitute murder, butwhich homicide is committed as the result of “extreme mental or emotional disturbance”for which there is a “reasonable explanation or excuse.”[MPC § 210.3(1)(a)-(b)]The Code does not recognize any form of criminal homicide based on the unlawful-act(misdemeanor-manslaughter) rule. [MPC § 6.06(2).][2] Reckless and Criminally Negligent Homicide – A person who kills anotherrecklessly is guilty of manslaughter. In a sharp departure from the common law, the Codeprecludes liability for manslaughter based on criminal negligence. A criminally negligenthomicide – involuntary manslaughter at common law – constitutes the lesser offense ofnegligent homicide under the Code. [MPC § 210.4][3] Extreme Mental or Emotional Disturbance – A person who would be guilty ofmurder because he purposely or knowingly took a human life, or because he killed a personrecklessly under circumstances manifesting an extreme indifference to the value of humanlife, is guilty of the lesser offense of manslaughter if he killed the victim while suffering froman “extreme mental or emotional disturbance” (EMED) for which there is “reasonableexplanation or excuse.” The reasonableness of the explanation or excuse regarding theEMED is “determined from the viewpoint of a person in the defendant’s situation under thecircumstances as he believes them to be.” The concept of EMED is intended to incorporatetwo common law doctrines: (1) sudden heat of passion (but in a much expanded form); and(2) partial responsibility (diminished capacity).The EMED manslaughter provision is broader than the common law provocation defense inthe following ways:(1) a specific provocative act is not required to trigger the EMED defense;(2) even if there is a provocation, it need not involve “an injury, affront, or otherprovocative act perpetrated upon [the defendant] by the decedent”;(3) even if the decedent provoked the incident, it need not fall within any fixedcategory of provocations;(4) words alone can warrant a manslaughter instruction;(5) there is no rigid cooling-off rule. The suddenness requirement of the common law– that the homicide must follow almost immediately after the provocation – is absentfrom the EMED defense

Common law – Generally speaking, sexual intercourse by a male with a female nothis wife, constitutes rape if it is committed:(1) forcibly;(2) by means of deception;(3) while the female is asleep or unconscious; or(4) under circumstances in which the female is not competent to give consent (e.g., sheis drugged, mentally disabled, or underage).Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed amorally blameworthy state of mind regarding the female’s lack of consent.[B] Traditional Statutory Law – Traditional rape statutes define the offense as sexualintercourse achieved “forcibly,” “against the will” of the female, or “without her consent.”Like the common law, such statutes are gender-specific, i.e., only males are legally capableof perpetrating the offense, and only females can legally be victims of the crime.[C] Modern Statutory Law – Many states now extend the law to specified forms of nonforcible,but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with anunconscious or drugged female. Increasingly, rape is now defined in gender-neutral termsregarding both the perpetrator and the victim. In the most reformed statutes, the offense hasbeen broadened to include all forms of sexual penetration; the name of the crime has beenchanged (e.g., “criminal sexual conduct” or “sexual assault”) and the offense is divided intodegrees.[D] Model Penal Code – A male is guilty of rape if, acting purposely, knowingly, orrecklessly regarding each of the material elements of the offense, he has sexual intercoursewith a female under any of the following circumstances:(1) the female is less than 10 years of age;(2) the female is unconscious;(3) he compels the female to submit by force or by threatening her or another personwith imminent death, grievous bodily harm, extreme pain or kidnapping; or(4) he administers or employs drugs or intoxicants in a manner that substantiallyimpairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]§ 25.02 “Forcible”The traditional common law rule requires proof that both the female did not consent to theintercourse and that the sexual act was “by force” or “against her will” (“resistance”requirement). Generally speaking, nonconsensual intercourse is “forcible” if the male usesor threatens to use force likely to cause serious bodily harm to the female or, possibly, a third68Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.person. Intercourse secured by a non-physical threat does not constitute forcible rape atcommon law.A minority of jurisdictions by statute or common law interpretation have abolished theresistance requirement. Where state have retained the resistance requirement, the trend is toreduce the significance of the rule by lowering the barrier, typically requiring only that thealleged victim asserted a degree of resistance that was reasonable under the circumstancesor that was sufficient to indicate that the sexual intercourse was without consent.An extreme minority approach, applied at least in New Jersey, is that a male can beconvicted for forcible rape based solely on the lack of permission for the sexual intercourse.[State in the Interest of M.T.S., 609 A.2d 1266 (1992)]The Model Penal Code defines rape solely in terms of the male’s acts of aggression and doesnot require proof of resistance by the victim.§ 25.03 Marital Immunity RuleAt common law, a husband could not be guilty of raping his wife. The majority of statesretain a partial exemption under which immunity does not apply if the parties are legallyseparated or are living apart at the time of the rape.A minority of states maintain a total exemption for marital rape, while at least twelve stateshave abolished the rule.The Model Penal Code recognizes a partial marital exemption that bars a rape prosecutionagainst a spouse or persons “living as man and wife,” although they are not formallymarried. More stringent than the majority exemption, the only exception to the maritalimmunity rule is for spouses living apart under a formal decree of separation. [MPC §213.6(2)]§ 25.04 Evidentiary Issues at Rape Trials[A] Corroboration Rule – At common law, the testimony of the alleged rape victim didnot need to be corroborated in order to convict for rape. However, a minority of states, bystatute or case law, have instituted a corroboration requirement.The Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)][B] Rape-Shield Statutes – If the defendant contends that the female consented to sexualintercourse with him on the occasion of the alleged rape, evidence of prior consensual sexualacts between the accused and the victim is admissible. However, today, most states barevidence of the alleged victim’s prior consensual sexual activity with persons other thanthe accused and her reputation for lack of chastity under the so-called “rape-shield” laws.69Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.

Larceny[A] General Rule – Common law larceny is the trespassory taking (caption) and carryingaway (asportation) of the personal property of another with the intent to permanentlydeprive the possessor of the property. Larceny is a specific-intent crime.Real property is not the subject of larceny law. Moreover, only tangible forms of personalproperty are encompassed in the offense.Grand and petty larceny were felonies at common law, with grand larceny being punishableby death. Today, grand larceny is a felony and petty larceny is a misdemeanor.[B] Trespass – A “trespass” is the dispossession of another’s property without his consent,or in the absence of justification for such nonconsensual dispossession. Dispossession byfraud also constitutes a trespassory taking.[C] “Of Another”[1] Common law – Because larceny involves the trespassory taking of possession ofanother person’s property, a person may be convicted of larceny of property he owns, e.g., ifa landlord, who leases out furnished apartments, enters a tenant’s apartment and takes andcarries away the furniture in violation of the lease agreement, he has taken the personalproperty “of another” for purposes of larceny law.[2] Model Penal Code – The Code defines “property of another” broadly to include“property in which any person other than the actor has an interest.” [MPC § 223.0(7)] Thisdefinition includes a possessory or ownership interest.[D] “Custody” versus “Possession” – Larceny involves the trespassory taking of personalproperty from the possession of another. Ownership is not the key. A person has possessionof property when he has sufficient control over it to use it in a reasonably unrestrictedmanner. Possession can be actual or constructive. It is actual if the person is in physicalcontrol of it; it is constructive if he is not in physical control of it but no one else has actualpossession of it, either because the property was lost or mislaid or because another person hasmere “custody” of it. All non-abandoned property is in the actual or constructive possessionof some party at all times.A person has mere custody of property if he has physical control over it, but his right to useit is substantially restricted by the person in constructive possession of the property. Aperson in physical control of property has mere custody of the property in any of thefollowing situations:(1) He has temporary and extremely limited authorization to use the property.71Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(2) He received the property from his employer for use in the employment relation.However, an employee who obtains property from a third person for delivery to theemployer takes lawful possession upon delivery, and thus cannot be convicted of larcenyof the property if he carries it away.(3) He is a bailee of goods enclosed in a container. When a bailee is entrusted with acontainer for delivery in unopened condition, he receives possession of the container butmere custody of its contents. When the bailee wrongfully opens the container andremoves the contents, i.e., when he “breaks bulk,” a trespassory taking of possession ofthe contents results.(4) He obtained the property by fraud. When one receives property from anotherbased on a false promise to return it, he receives only custody of the property, and isguilty of larceny if he appropriates it. On the other hand, if one has an honest intent whenhe receives the property (and, thus, no fraud is involved), he receives possession of theproperty, and any subsequent misappropriation constitutes embezzlement or no offense.[E] Carrying Away (Asportation)[1] Common law – A person is not guilty of larceny unless he carries away the personalproperty that he took trespassorily from another. However, virtually any movement of theproperty away from the point of caption is sufficient, e.g., larceny, rather than attemptedlarceny, occurs even if a shoplifter is caught with the merchant’s property in his possessioninside the premises.[2] Model Penal Code – The Code does not require proof of asportation. [MPC §223.2(1)] This feature of the Code has been incorporated into most states’ revised theft laws.[F] Personal Property[1] Land and Attachments Thereto – The common law of larceny does not protect landbecause by its nature it is immovable. Items attached to the land, e.g., trees, crops, andinanimate objects affixed in the earth also fall outside the scope of the offense. Once they aresevered from the land, however, they become personal property and subject to larceny law.In contrast, the Model Penal Code and many modern theft statutes cover all property(“anything of value”), [MPC § 223.0(6)] including “immovable” property, such as real estate,and “movable” property, “including things growing on, or found in land.” [MPC § 223.0(4)][2] Animals – At common law, animals in the state of nature or ferae naturae (e.g., wilddeer, wild birds, fish in an open river) were not “property” within the meaning of larcenylaw. However, once an animal was confined by a person on his land or killed, it became hispersonal property, subject to the law’s protection.Domesticated animals of a “base nature” also fell outside the scope of the common lawdefinition of larceny. Horses and cattle were subject to larceny laws; dogs were “base.”Today all domesticated animals and birds are protected by theft statutes.72Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.[3] Stolen Property and Contraband – It is larceny for a person to take and carry awaythe property of another, even if the “victim” also had no right to possess the property inquestion.[4] Intangible Personal Property – Because common law larceny involves the wrongfultaking and carrying away of personal property, property without a corporeal existence, i.e.,intangible property, is excluded from its coverage. Today the vast majority of states followthe Model Penal Code and prohibit the unlawful transfer of intangible personal propertyrights. [MPC § 223.2(2)][G] Intent to Steal[1] In General – Courts commonly state that a person is not guilty of larceny unless hetakes and carries away the personal property of another with the “specific intent to steal” theproperty. However, courts have construed reckless behavior to constitute intent if thedefendant knew that his conduct would create a substantial risk of permanent loss, i.e., thatthe defendant was guilty of recklessly exposing the property to permanent loss.[2] Continuing-Trespass Doctrine – When a person takes possession of another person’sproperty by trespass, every moment that he retains possession of it constitutes a newtrespassory taking that continues until he terminates possession of the property.[3] Claim of Right – A person is not guilty of larceny if he takes property belonging toanother person based on the good faith belief that he has a right to possess the property. Thedefendant’s belief negates the specific intent to steal.[H] Lost and Mislaid Property – An owner of property retains constructive possession ofhis lost property if there exists a reasonable clue to ownership of it when it is discovered. Areasonable clue to ownership exists if the finder: (1) knows to whom the lost propertybelongs; or (2) has reasonable ground to believe, from the nature of the property, or thecircumstances under which it is found, that the owner can be ascertained. If there is noreasonable clue to ownership of the lost property, the finder may use the property as hewishes; the act of picking up the property and using or disposing of it is not a “taking”(trespassory or otherwise). However, if there is a reasonable clue to ownership of theproperty, the finder’s state of mind upon discovery becomes critical.With mislaid property, the same two factors – the possessory interest of the owner in theproperty, and the finder’s state of mind upon discovery – apply. An object is “mislaid” if it isintentionally placed in a location for a temporary purpose and then inadvertently left there.§ 26.02 EmbezzlementEmbezzlement is not a common law offense and thus is a legislative creation. Mostembezzlement statutes set forth the following elements:(1) that the defendant came into possession of the personal property of another in alawful manner;73Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(2) that the defendant thereafter fraudulently converted the property; and(3) that the defendant came into possession of the property as the result of entrustmentby or for the owner of the property.§ 26.03 False Pretenses[A] In General – At common law, a person who “knowingly and designedly” obtains titleto property by false pretenses is guilty of the offense of false pretenses. A “false pretense” isa false representation of an existing fact.[B] Elements of the Offense[1] False Representation – False pretenses requires a false representation, whether in theform of writing, speech, or conduct. Generally, nondisclosure of a material fact does notconstitute false pretenses, even if the omitter of the information knows that the other party isacting under a false impression. However, nondisclosure constitutes misrepresentation if theomitter has a duty of disclosure, such as when he has a fiduciary relationship to the victim.[2] Existing Fact[a] Common and Statutory Law – At common law, the expression of an opinion, utteredwith the intent to defraud another, does not constitute false pretenses. According to themodern majority rule, the offense of false pretenses also does not apply tomisrepresentations regarding future conduct, although many states have recently expandedtheir theft laws to encompass false promises.[b] Model Penal Code – Section § 223.3 provides that a person is guilty of “theft bydeception” (the Code’s equivalent offense) if he creates or reinforces a false impressionregarding the value of property. However, the Code expressly immunizes puffing, if thestatement would not deceive an ordinary listener.The Model Penal Code prohibits deception regarding a person’s “intention or other state ofmind.” The Code expressly provides, however, that deception regarding the intention tofulfill a promise cannot be inferred solely from the fact that the promisor did not perform asguaranteed. [MPC § 223.3(1)]