Homicide (and manslaughter), solicitation, conspiracy, accomplice liability (and pinning everything on the people involved),bootstrapping/independent crimes, insanity, intoxication, excuse, mistake, to mental state to causation

Elements of a crime

Act: crimes must be voluntary (no drunks or loafers or unconscious people) -- sending people do to it falls under accomplice liability

Omissions: Statute (tax returns), Contract (lifeguard, nurse), Relationship between the parties (parents, spouses), Voluntarily assuming a duty of care towards someone else, than failing to perform, Defendant’s conduct created the peril

Defenses to act:

Innocent instrumentality (tricked, or pushed)


Legal impossibility: no crime if a legal act, even if thought illegal (buying non-stolen merchandise)

Factual impossibility is not a defense: liability even if the completion of crime is impossible

Self defense

Non-deadly force: one may use non-deadly force any time they believe they reasonably believe that force is about to be used on him

Deadly force

Majority: A victim may use deadly force any time that victim reasonably believes that deadly force is about to be used on him

Deadly force is any force that results in death

Minority: Require a victim to retreat to the wall if it safe to do so

Exceptions to duty to retreat

Don't have to retreat out of your home

Don't have to retreat if you are a victim of a rape or robbery

Police officers have no duty to retreat

An original aggressor would only get the defense of self-defense unless the aggressor runs away and stops at the door, communicate that he is withdrawing.

Defense of others: This turns on only the reasonableness of the belief that they need your assistance.

Defense of a dwelling

Deadly force may never be sued solely to defend your property

Spring guns are a crime -- deadly force may never be used solely to defend your property

Justified homicide

Where the killing is necessary

The killer is without fault; and

The killing occurs in The performance of a legal or The exercise of a lega7l right.

Mental state -- under MODEL PENAL CODE default mental state required is recklessness

Transferred intent -- intent gets transferred from one's attempt to their right -- makes one crime into two: Murder of the person who actually was killed and Attempted murder of person that was originally intended to be target

Specific intent (Cl: Purposely or knowingly) -- the state must prove the intent by independent evidence (and cannot be inferred from the conduct) Qualify for additional defenses not available for other kinds of crimes. Voluntary intoxication is a defense to specific intent and malice crimes


Inchoate crimes

Solicitation: Asking someone to commit a crime solicitation of murder does not amount to attempt -- cajoling (mischief doesn't count)

Impossibility is not a defense nor is withdrawal of solicitation

Elements of solicitation

Enticing, advising, encouraging, or ordering another to commit a felony, or misdemeanor against the public welfare (e.g., breach of the peace, obstruction of justice)

Conspiracy: If one asks someone to commit a crime, and they agree (only crime is conspiracy). More than just knowing about crime is necessary, but no explicit agreement is necessary -- note: one can also be guilty of the object crime, if successful

Objective of conspiracy

Can't be for something which only requires general intent

Corrupt motive doctrine

Mistake of law, in some courts might apply that something that is malem prohibitium (rather than malum in se) might not be a crime

Same evidence test (no longer used): multiple conspiracies exist if different evidence used

Elements necessary for conspiracy


Intent to agree: only if there is a common purpose to attain an objective covered by the law of conspiracy is their liability

Intent to pursue the unlawful objective (a specific intent)-- usually criminal, but some common law objective are non criminal

Exceptions made for crimes that are made to protect people from each other

Configurations of conspiracies

Chain conspiracies, no communications between conspirators, but inference can be made

Possibility can exist that there is not, in fact one big wheel conspiracy, but several smaller wheels

If the wheel views the hub as part of a big conspiracy, and the spokes infer or know that there are other spokes than it is a wheel conspiracy, otherwise there are separate conspiracies

Multiple conspiracies if one person deals with others who have no connection with each other

Liability for conspiracy: conspirators are liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable

One gives up their independence, and is subject to the crimes of others in the conspiracy, and their testimony (including hearsay)

Pinkerton rule: liable for acts within the scope of the conspiracy

Suppliers are usually not held liable, as there has to be a positive attitude towards the action (the more restricted the more likely they are to be positive)

Success on that part with which defendant was immediately concerned was dependent upon success of the whole.

Warton Rule; conspiracy requires more people than logically necessary to commit a crime (criticized) -- so an acquittal of one under the old rule meant ant acquittal of both -- under MODEL PENAL CODE, an acquittal might meant the other still conspired with some people

Defenses to conspiracy

Legal Impossibility of the underlying action (steel from an empty pocket)

Acquittal of one party

Under MODEL PENAL CODE acquittal of one person won't matter, as the MODEL PENAL CODE only requires acquittal of one person

Factual impossibility is not a defense (aborting an unpregnant woman)

No Overt act

Majority: Agreement and some overt act (by only one of the conspirators)

Any act will do e.g., Guy shows up at place he agrees to rob or Second meeting

Minority: -- and common law -- conspiracy is in agreement itself

Withdrawals from conspiracy

Even if withdrawal is adequate, can never withdraw the defendant from liability from the conspiracy itself

Can withdraw from liability from other subsequent crimes

Withdraw, even if adequate can never withdraw from liability from the conspirators other subsequent crimes

Abandonment -- would have to show that there was one more act in furtherance of the conspiracy before the statute runs out

RICO: unlawful for any person employed or associated with any enterprise engaged in or the activities of which affect, interstate or foreign commerce (can just be a violation of state law) to conduct or participate directly or indirectly in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt -- triple civil damages are available for RICO

Elliot approach: it is irrelevant that each defendant participated in the enterprise's affairs though different, even unrelated crimes, if each crime was intended to further the enterprise's affairs.

Needs to be a pattern of violations

Conspiracy to commit a crime, and use its proceeds for anything – even something that is legal in a criminal enterprise. Can be a crime to invest wrongfully obtained money in legit businesses under RICO

Must be pattern (in 10 years)

Attempt: Attempt is specific intent, and a substantial step in the direction of the crime (cannot be convicted of lesser included offences of what the attmept is)

Attempt under the Model Penal Code is the manifestation of dangerousness is as great - or very nearly as great - as in the case of purposive conduct."

The Model Penal Code Approach: for attempt must have been acting with the kind of culpability otherwise required and taken a substantial step toward the commission (bank robbers)

Will find an attempt at an earlier stage with the "substantial step" test than with the "proximity" test, e.g., lying in wait, searching for or following an intended victim, or possessing materials to be used at or near the scene of the intended crime.

Old: not necessary to carry through with the last act; dangerous proximity to success test (set up stuff for arson, didn’t light)

Proximity: even if the act is lawful, if it is done for purpose of evil consequence

Was the defendant’s act sufficiently proximate to the intended crime? (This can be strictly interpreted--where the defendant must have done everything he believed necessary to bring about his criminal result--or, it can be less strictly interpreted, requiring either physical proximity or an "indispensable element," e.g., with assault with a deadly weapon, the defendant must have procured a deadly weapon).

Alternative to Proximity: criminal liability for manifestation of intent (man followed woman, said he intended to get her)

Equivocality Test (Common Law): Defendant must have committed an act that could not reasonably be interpreted as having any other purpose.

Defenses to attempt

Mere preparation for crime cannot be enough, must be a step beyond mere preparation

Impossibility is no defense to a charge of attempt

Majority/MODEL PENAL CODE: If the facts could have been as the defendant believed them, and if that would be a crime, then he would be guilty of attempting the crime under the MODEL PENAL CODE and under the majority position.

Malice (two malice crimes at common law (Murder, and Arson)):


Aforethought Seems to mean that the mental state must occur before or at the time of the killing

Malice is defined as if she unjustifiable, inexcusably, and in the absence of any mitigating circumstances, kills a person with any one of the four mental states (purposefully, knowing, negligently, recklessly)

Common law murder and Arson

General Intent -- (recklessly or negligent) (rape and battery and more) -- all other crimes unless they qualify for strict liability -- intent can be inferred from conduct

All other crimes are general intent

Strict Liability: If the crime is in the administrative, regulatory, or morality area (if there are no adverbs) -- problem with assumption of strict liability according to the

Mistake of fact negates intention -- so it can't be a defense to strict liability

If a statute is administrative, regulatory, or morality area

Any defense that negates an intention is no defense to the no intent crimes of strict liability

Concurrence between mental state and act

Causation -- act must be both factual and legal cause

Factual cause -- substantial factor necessary

But-for cause of harm

Normal negligence is not a superseding cause, but exceedingly gross negligence is

Combined acts are each sufficient

Legal cause

No liability of insubstantial cause of harm or independent intervening force

Negative acts are never superceding causes

MODEL PENAL CODE: not liable if harm occurred different than foreseeable or contemplated and too accidental to warrant conviction

Must be concurrence between the men rea at time of thinking and the act

Accomplice Liability (unlike conspiracy, no agreement necessary) -- Actual assistance required and principle must know of Accomplice's actions Liability

Defendant must intend to commit or to assist another in committing (requires specific intent)

In some situations (the mental state might be that the accessory might think that the principal will commit the crime)

in some states the required mental state is the knowledge the principal’s mental state

Model Penal Code: a person who attempts to aid a person is guilty of being an accessory, regardless of whether the act or the attempted act occurred (§5.01.3)

Detectives are not culpable if they have a different mens rea (e.g. not to permanently deprive one of goods)

Some courts take the position that any active assistance establishes a mens rea

Common law categories

Principles in first degree

Principles in second degree -- one who gives "constructive prence"

Accessories before the fact; An accessory before the fact is one who procure counsels or commands the commission of a felony but who, unlike a principal in the second degree, is not present, actually or constructively, at the commission of the criminal act.

Accessories after the fact is defined as

Knowledge (not just suspicion) that a felony had been committed, and completed, by the assisted person;

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Accomplices are liable for the crime itself and all other foreseeable crimes

Even if the principle has an immunity the accomplice can still be tried

accomplice is imputed with the mens rea of the actor (intent to commit or encourage the crime) (former lover looking for girl)

Both parties must have the same intent (relative helped robber rob store to help police catch him)

One is not an accomplice if they do not actively aiding or abetting or counseling the crime

Don't give people accomplice liability just because they are present, but they seem to be consenting

Mens Rea as to Result (in recklessness cases)

An accessory before the fact can be liable for the final act (ship boiler blew up) -- even for negligence

Participation can be an accessory An accomplice must have the same culpable mental state and intentionally aid in the commission (accident killing others while drag racing)

Actus Reus -- Wilcox v. Jeffery—The nature of the illegal act is immaterial (the jazz musician)

Sometimes just encouraging can be enough

Defenses to Accomplices liability


Where an accessory has only counseled, commanded, or encouraged the crime, he may withdraw by communicating his changed intention to the other parties

If he has already given tangible aid, he must withdraw the aid or try to prevent its use (e.g., by warning the police).

Note that it is not necessary that the crime actually be prevented by his actions; if he withdraws properly, he will not be liable even if the crime takes place.

Note, however, that the withdrawal must reflect a renunciation of the criminal purpose, not a mere determination that the odds of success are slim, or that one is afraid of getting caught. Also, such withdrawal must take place before the chain of events has become "unstoppable."

Defenses -- ways of knocking out the mens reas


Under seven -- no criminal liability

Under fourteen -- rebuttable presumption of criminal liability

Insanity -- four tests == Most states the prosecutor has the burden of persuasion

M'Naughton Rule (traditional):

Two prongs

Defendant is not guilty by reason of insanity if he lacked the ability to know (and the time of his conduct) the wrongfulness of his action

to understand the nature and quality of his action -- requires a disease of the mind

I.e. one thinks that they are squeezing lemons

Accused’s sanity may be tested by his knowledge that his acts were legally wrong. Objective tests used for Society’s morals

Irresistible impulse: Defendant lacked the ability or capacity for self control and free choice.

IRRESISTIBLE IMPULSE TEST (followed by a few states—control or volition test) — Due to mental illness, defendant is unable to control his actions or conform his conduct to the law. Note that this need not be sudden — "impulse" is misleading. Note that some jurisdictions use both this and M’Naghten — if defendant meets either, he’s acquitted.

Durham rule (formerly test in DC and NH): Defendant's conduct is a product of a mental illness -- mental illness is a vague term

United States v. Brawner—The Durham test will not be allowed

State v. Wilcox—Evidence toward diminished capacity would produce uneven results.

Insanity can be that someone doesn’t know what he is doing – thinks something is something else.: Durham Rule (anti-Mcnaughton rule) A small minority of jurisdictions accept the Durham Rule rather than the M’Naghten Rule in defining criminal insanity. The rule holds that a person is legally insane if his act was the product of a mental disease or defect. The Durham Rule is criticized as being too vague, too subject to the influence of experts, and too favorable to defendants. (two halves of M’Naughton rule -- doesn’t understand the nature and quality of his actions)


lacked substantial capacity to appreciate criminality of conduct

lacked substantial capacity to conform conduct to the requirements of the law.

ALI/MODEL PENAL CODE "SUBSTANTIAL CAPACITY" TEST (was modern trend until Hinckley; liberalized alternative knowledge or control test) - Defendant had a mental defect such that he lacked the substantial (not total) capacity to EITHER appreciate the criminality/wrongfulness of his conduct OR conform his conduct to the law. In essence, this combines the M’Naghten and Irresistible Impulse tests.


Voluntary intoxication: Addicts and alcoholics are voluntarily intoxicated

Voluntary intoxication is a defense only to specific intent crimes

Involuntary intoxication: When someone is slipped into one's drink or forced to drink)

This is a form of insanity

Just like insanity it is a defense to all crimes, even the no intent crimes of strict liability


Lack of Mens Reas

Mistake of fact -- see table

Mistake of Law (usually not an excuse but can show lack of adaquate mens reas)

misunderstanding as to the law is not a defense, unless the statute’s interpretation is later deemed invalid, in cases where intent is not an element of the crime (corrections officer had a gun)

Where the crime explicitly requires defendant’s knowledge of some aspect of the law, and defendant doesn’t have that knowledge, he will be exculpated. Such instances are very rare.

Cheek v. United States—There must be a willful violation (tax evader)

Due Process required

Mistake is a defense if the action is based on a valid official statement of law that is later overturned (peace demonstration at naval base)

Lambert v. California—Due process requires knowledge of statute if contains duty to act (convicted person didn’t register)


Almost never available because predisposition on the part of the defendant to commit the crime negates entrapment

The police must originate and induce the crime

SUBJECTIVE APPROACH: In the majority of jurisdictions, entrapment is a valid defense where:

The defendant was not "predisposed" to commit the crime, and

law enforcement officers (or those working for them) instigate defendant to commit the crime.

MODEL PENAL CODE -- OBJECTIVE APPROACH: This alternative version of the entrapment defense, adopted by the Model Penal Code and in several jurisdictions by either statute or judicial decision, is also called the "hypothetical person" test. It provides a defense when the conduct of the police is found to be such that it would induce a non-predisposed person to commit the offense. The predisposition of the actual defendant is not supposed to be relevant. The issue of entrapment in an objective test jurisdiction is generally decided by the court, not the jury.


Self defense -- justifiable

Non-deadly force: one may use non-deadly force any time they believe that a victim reasonably believes that force is about to be used on him

Deadly force

Majority: A victim may use deadly force any time that victim reasonably believes that deadly force is about to be used on him

Deadly force is any force that results in death

Minority: Require a victim to retreat to the wall if it safe to do so

Exceptions to duty to retreat

Don't have to retreat out of your home

Don't have to retreat if you are a victim of a rape or robbery

Police officers have no duty to retreat

When does an original aggressor get the defense of self-defense unless the aggressor runs away and stops at the door, communicate that he is withdrawing.

Defense of others: This turns on only the reasonableness of the belief that they need your assistance.

Defense of a dwelling

Deadly force may never be sued solely to defend your property

Spring guns are a crime -- deadly force may never be used solely to defend your property

Justified homicide

Where the killing is necessary

The killer is without fault; and

The killing occurs in The performance of a legal or The exercise of a legal right.

Duress and Necessity

Defenses to all crimes at common law, except homicide

Necessity is the same as duress, except that it is a defense to all crimes, except homicide


Threat of serious bodily harm to family member by another human being

Defendant behave reasonably

Situation wasn’t the defendant’s fault

Government proclamation on something eliminates necessity defense

Common law crimes -- no state actually has them. One you know the old common law crimes, one can predict the MODEL PENAL CODE versions

Assault -- to tie to a mental state, it is necessary --must look at the statute

Assault as an attempted battery (specific intent crime)

Like all attempts, assault as an attempted battery is a specific intent crime

Assault as a threat -- (general intent crime)

Battery: (General Intent) a completed assault

Possession: need to exercise


be in control

have knowledge

have opportunity to dispossess (safekeeping is not disposing)


Victim must be human

Murder, by itself is common law murder (requiring malice) and won't be able to use the additional defenses for first degree murder (and for only specific intent crimes) -- lower the mental state to common law murder

voluntary intoxication

any mistake of fact reasonable or unreasonable

need clear evidence of premeditation to support first degree conviction (killed 10 year old daughter)

one of the follwing mental states is required for common law murder (MALICE at common law, one of the following intents were necessary (look like specific intent)

There is a demonstrated intention to cause great bodily harm;

The act (or omission) would naturally tend to cause great bodily harm or death;

Abandoned and malignant murder (highly reckless, depraved heart)

Intentional performance of an act detailing a substantial likelihood of an act causing death (must show malice)

I.e. playing Russian Roulette

A homicide occurs during the commission of a dangerous felony.(see felony murder)

Note that implied malice is sufficient for "malice aforethought," a requirement, along with the unlawful killing itself, of common law murder.

Implying malice: Use of a deadly weapon will allow a presumption of intent to kill. In light of Sandstrom v. Montana, the "presumption" must be viewed as a permissive inference. LF/CL § 7.1(a)

Felony Murder: causing death while you are committing a felony (no malice needee)

Committed during the course of a felony including inherently dangerous felonies [arson, kidnapping, robbery, burglary and rape

Some courts consider that the felony must be inherently dangerous, while other will look at the circumstances where the felony was committed

Defendant must be guilty of underlying felony

Causal connection for Felony Murder:

Ask whether the felony dictated the conduct which led to the homicide. If not too remote in time and place, the homicide will constitute felony murder. Death must be something foreseeable. Not as a result of the felons fighting amongst each other.

Death should be reasonably foreseeable

Independent test: If the felony itself it near Homicide (battery) Felony murder doesn’t apply

Place of temporary safety-once felon has reached, subsequent deaths caused not felony murders

Redline Rule - victim or police officer resists or shoots felon to prevent crime or escape - -felon not liable for death of co-felon (but can be liable for death of 3rd party bystander)

Manslaughter -- Two kinds of manslaughter

Where there is intent to kill -- Voluntary manslaughter (heat of passion)-- never use voluntary manslaughter unless there is some passion

Killing from passion (provoked) -- no adequate time to cool off

The Traditional Common Law Limits


Actual provocation -- spouse having sex with another is provocation to mitigate murder (spitting in someone's face, assault)

Legally adequate response

Acted reasonably

Adaquate time to cook off

Mere words are not enough provocation to mitigate murder (murdered wife disparaged his prowess)

Departures From the Categorical Approach -- MPC takes just "emotional disturbance" view

Any provoking circumstance should be presented to the jury, as well as the cooling off time

—reasonableness of person’s extreme emotional disturbance can be considered by a jury (rejected boyfriend murders her)

Consideration of a "reasonable man" should take into account the circumstances of that person (sodomized child murdered attacker)


Imperfect justification

Where there is no intent to kill involuntary manslaughter -- killings from criminal negligence

ie falling asleep at the wheel of a car

firing a gun and missing

misdemeanor manslaughter

killing while you are committing a misdemeanor

or what is known as an unenunerated felony(not dangerous)

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