Chapter 5:
❖Introduction (justification and excuse)
➢Proving criminal conduct (a criminal act triggered by criminal intent) is necessary to hold individuals
accountable for the crimes they commit
➢Criminal conduct alone isn’t enough to establish criminal liability
➢It's only the first of three requirements
■ First we have to answer the question, “Was there criminal conduct?” If there wasn’t
the inquiry is over, and the defendant is free
● If there was, we have to answer the question of this chapter, “Was the
criminal conduct justified?” If it was, the inquiry ends, and the defendant
goes free.
◆If it wasn’t justified, we have to go on to answer the third question,
“Was the unjustified conduct excused?” If it wasn’t the defendant is
criminally accountable for her criminal conduct. If it was, the
defendant might, or might not, go free
➢In the justification defenses, defendants admit they were responsible for their acts but
claim that, under the circumstances , what they did was right (justified). The classic
justification is self-defense: kill or be killed
➢In the excuse defenses, defendants admit what they did was wrong but claim that, under
the circumstances, they weren’t responsible for what they did. The class excuse is insanity
➢More than 40 states have either passed or proposed statutes that expand the right to use
deadly force to protect self and home in two ways:
■ 1) “They permit a home resident to kill an intruder, by presuming rather than
requiring proof of reasonable fear of death or serious bodily harm”
■ 2) “They reject a general duty to retreat from attack, even when retreat is possible,
not only in the hoe, but also in public space”
❖Proving Defenses
➢Justification and excuse are affirmative defenses, which operate like this: Defendants have
to “start matters off by putting in some evidence in support” of their justification or excuse
■ Most affirmative defenses are perfect defenses, which means that, if they’re
successful, defendants are acquitted
➢Competency hearings are special hearings to determine if these defendants are still
insane. Most competency hearings decide they are, and so they’re sent to
maximum-security hospitals to be confined there until they regain their sanity.
➢Evidence that doesn’t amount to a perfect defense might amount to an imperfect defense;
that is, defendants are guilty of lesser offenses
➢Even when the evidence doesn’t add up to an imperfect defense, it might still show
mitigating circumstances that convince judges or juries that defendants don’t deserve the
maximum penalty for the crime they’re convicted of
❖Self-Defense
➢If you use force to protect yourself, your home or property, or the people you care about,
you’ve violated the rule of law, which our legal system is deeply committed to. According to
the rule of law, the government has a monopoly on the use of force; so when you use
force, you’re “taking the law into your own hands”
➢Self-defense amounts to a grudging concession to necessity. It’s only good before the law
when three circumstances come together:
■ 1) The necessity is great,
■ 2) It exists “right now”
■ 3) It’s for prevention only
➢You can’t use force to prevent an attack that’s going to take place tomorrow, or even this
afternoon. Retaliation isn’t allowed either; you can’t use it to “pay back” an attack that took
place last year or even this morning
➢Today, to justify the use of deadly force, the defender has to honestly and reasonably
believe that she’s faced with the choice of “kill, or be killed, right now!”
➢Self-defense consists of four elements:
■ 1) Nonaggressor - The defender didn’t start or provoke the attack
■ 2) Necessity - Defenders can use deadly force only if they reasonably believe it’s
necessary to repel an imminent deadly attack - namely, one that’s going to happen
right now
■ 3) Proportionality - Defenders can use deadly force only if the use of nondeadly
force isn’t enough to repel the attack. Excessive force isn’t allowed
■ 4) Reasonable belief - The defender has to reasonably believe that it’s necessary
to use deadly force to repel the imminent deadly attack
➢Self-defense isn’t available to an initial aggressor; someone who provokes an attack can’t
then use force to defend herself against the attack she provoked. With one exception:
according to the withdrawal exception, if attackers completely withdraw from attacks they
provoke, they can defend themselves against an attack by their initial victims
➢Necessity refers to an imminent danger of attack. Simply put, it means, “The time for
defense is right now!” When is “right now”? The majority view in the case is: “right now”
means “right now”
➢Does “eventual” and “inevitable” satisfy the imminence requirement?
■ The short answer, no
➢Self-defense also includes killing someone who’s about to kill a member of your family - or
any innocent person for that matter
➢You can also kill an attacker whom you reasonably believe is right now going to hurt you or
someone else badly enough to send you or them to the hospital for the treatment of
serious injury. This is what serious (sometimes called “grievous”) bodily injury means in
most self-defense statutes
➢Some self-defense statutes allow you to kill someone you reasonably believe is about to
commit a serious felony against you that doesn’t threaten either your life or serious bodily
injury. These felonies usually include rape, sodomy, kidnapping, and armed robbery
■ The list almost always includes home burglary and, sometimes, even personal
property
➢Is it enough that you honestly believed (1) that you were in imminent danger; (2) that you
needed to use force to fend it off; and (3) that you needed to use the amount of force you
used?
■ No. Honest (subjective) belief won’t do. All statutes also include an objective
element that requires that your beliefs are reasonable. In other words, a
reasonable person in the same situation would have believed that the attack was
imminent and that the need for force and the amount of force used were necessary
to repel an attack
➢In common law, the burden was on defendants to prove their innocence, and no one could
prove innocence unless he (all homicides were committed by men) proved he’d “retreated
to the wall.” The English common law “retreat to the wall” survived in a minority of
American states:
■ One of the most important transformations in American legal and social history
occurred in the nineteenth century when the nation as a whole repudiated the
English common-law tradition in favor of an American theme of no duty to retreat:
that one was legally justified in standing one’s ground to kill in self-defense
■ The centuries-long English legal severity against homicide was replaced in our
country by a proud new tolerance for killing in situations where it might have been
avoided by obeying a legal duty to retreat
➢According to Jeannie Suk, A true man was honest; he made decisions based on what he
believed to be true, and he shouldn’t have to flee from attack because he’d done nothing
wrong to provoke or deserve the attack. The “true” man also did whatever he had to do to
provide for his wife and children; he was the source of strength for his vulnerable
dependents
➢Judges and legislators generalized the right to self- defense into the majority stand-your
ground rule; namely, if he didn’t start the fight, he could stand his ground and kill to “defend
himself without retreating from any place he had a right to be”
➢The minority rule, the retreat rule, says you have to retreat, if you reasonably believe that
■ 1) you’re in danger of death or serious bodily harm; and
■ 2) backing off won’t unreasonably put you in danger of death or serious bodily
harm
➢According to this castle exception to the retreat rule, when you’re attacked in your home,
you can stand your ground and use deadly force to fend off unprovoked attack, but only if
you reasonably believe the attack threatens death or serious bodily injury
➢The feminist movement had convincingly argued that women were victims of violence at
home. Law enforcement was beginning to treat domestic violence as a crime and not a
private family matter
➢By the late 1902, the recognition that battered women cases fit the “real man”
protecting-his-castle frame had definitely influenced the law of self-defense. Courts in
several castle doctrine states have adopted rules that allow women to “stand their ground
and kill their batterers”
➢First, there used to be problems even introducing expert testimony on battered woman’s
syndrome (BWS) to prove self-defense. Recall that the heart of self-defense is
reasonableness. Reasonableness requires defendants to prove both that
■ 1) She had a reasonable belief that at the moment she killed, she was in imminent
danger of death or great bodily harm; and
■ 2) She reasonably believed that she needed to use that amount of force to repel it
➢Some courts have gone further. They changed the element of “reasonable belief” that
force was necessary, to a “reasonable battered woman” believed that force was necessary
❖Defense of Others
➢Historically, self-defense meant protecting yourself and the members of your immediate
family. Although several states still require a special relationship, the trend is in the
opposite direction. Many states have abandoned the special relationship requirement
altogether, replacing it with the defense of anyone who needs immediate protection from
attack
➢The “defense of others” specifically limits the use of force or violence in protection of
others to situations where the person attacked would have been justified in using such
force or violence to protect himself
❖Defense of Home and Property
➢The right to use force to defend your home is rooted deeply in the common law idea that
“a man’s home is his castle”
■ If any person attempts to break open a house in the nighttime and shall be killed in
such an attempt, the slayer shall be acquitted and discharged. This reaches not to
the breaking open of any house in the daytime, unless it carries with it in attempt of
robbery
➢Most modern statutes limit the use of deadly force to cases where it’s reasonable to
believe intruders intend to commit crimes of violence (like homicide, assult, rape, and
robbery) against occupants
➢Most require entry into the home itself. This doesn’t include the curtilage, the area
immediately surrounding the home. Many require entry into an occupied home
➢Can you use force to protect your “stuff”? Not deadly force. But you can use the amount of
nondeadly force you reasonably believe is necessary to prevent someone from taking your
stuff
➢As with all the justifications based on necessity, you can’t use force if there’s time to call
the police
➢Between 2005 and 2015, more than 40 states have passed or proposed new “Castle
Doctrine” legislation intended to expand the right to use deadly force in self-defense
➢Supporters of the castle laws hail them as the public reasserting fundamental rights
➢Gun control advocates, on the other hand, decry the castle laws, warning that they’re
“ushering in a violent new era where civilians may have more freedom to use deadly force
than even the police.” They’re not a “right to defend”; they’re a “license to kill”
■ This law sends a message to people who are potentially dangerous and have an
itchy trigger finger that as long as they can make a reasonable case they were in
fear, they can use deadly force against somebody
➢There’s no empirical research to help explain why so many states have adopted the “new
castle laws”
■ Two commonly mentioned reasons are Americans’ heightened consciousness and
concern about their security since 9/11 and the lack of enough police officers to
protect the public
❖“Choice of Evils”
➢The core of the choice-of-evils defense is the necessity to prevent imminent danger
■ And it’s the reason it’s also called the general defense of necessity
➢The justification based on the necessity of defending yourself, other people, and your
home aren’t controversial
■ We see those who attack ourselves, our families, and our homes as evil and the
defenders as good. However, in the general choice-of-evils defense, the line
between good and evil isn’t always drawn as clearly as it is in self-defense and the
defense of home
➢The choice-of-evils defense justifies the choice to commit a lesser crime to avoid the harm
of a greater crime
➢Early cases record occasional instances of defendants who successfully pleaded the
necessity defense
■ The most common example in the older cases is destroying houses to stop fires
from spreading
➢To preserve one’s life is generally speaking a duty, but it may be the plainest and the
highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but
to die
■ It is not correct, therefore, to say that there is any absolute or unqualified necessity
to preserve one’s own life
■ It is plain that the principle leaves to him who is to profit by it to determined the
necessity which will justify him in deliberately taking another’s life to save his own
➢The choice-of-evils defense consists of proving that the defendant made the right choice,
the only choice - namely, the necessity of choosing now to do a lesser evil to avoid a
greater evil. The Model Penal Code choice-of-evils provision sets out the elements in three
steps:
■ 1) Identity the evils
■ 2) Rank the evils
■ 3) Choose based on the reasonable belief that the greater evil is imminent; namely,
it’s going to happen right now
➢Simply put, the choice-of-evils defense justifies choosing to commit a lesser crime to avoid
the harm of a greater crime. The choice of the greater evil has to be both immanent and
necessary. Those who choose to do the lesser evil have to believe reasonably that their
only choice is to cause the lesser evil to avoid the imminent greater harm
➢The Model Penal Code lists all of the following “right” choices:
■ Destroying property to prevent spreading fire
■ Violating a speed limit to get a dying person to a hospital
■ Throwing cargo overboard to save a sinking vessel and its crew
■ Dispensing drugs without a prescription in an emergency
■ Breaking into and entering a mountain cabin to avoid freezing to death
➢According to the American Law Institute, the values of life, safety, and health always trump
property interests
➢Once an individual has made the “right” choice, she’s either acquitted or it’s considered a
mitigating circumstance that can lessen the punishment. Courts rarely uphold
choice-of-evils claims by defendants
❖Consent
➢Consent has nothing to do with necessity. Nevertheless, it can be a justification. The
defense of consent is based on the idea that competent adults voluntarily consented to
crimes against themselves and knew what they were consenting to. The heart of the
defense of consent is the high value placed on the individual autonomy in a free society
➢Consent may make sense in the larger context of individual freedom and responsibility, but
the criminal law is hostile to consent as a justification for committing crimes
➢There are many examples of crimes where the freedom to choose one course of action
instead of another is either a total fiction or very limited
➢In most states, the law recognizes only four situations where consent justifies otherwise
criminal conduct:
■ No serious injury results from the consensual crime
■ The injury happens during a sporting event
■ The conduct benefits the consenting person, such as when a patient consents to
surgery
■ The consent is to sexual conduct
➢They also have to prove that the consent was voluntary, knowing, and authorized.
Voluntary consent means consent was the product of free will, not of force, threat of force,
promise, or trickery
➢Knowing consent means the person consenting understands what she’s consenting to;
she’s not too young or insane to understand. Authorized consent means the person
consenting has the authority to give consent
❖Key Cases
➢State v. Batie (Ohio App. 2015)
➢U.S. v. Haynes (Wis. 1998)
➢People v. Goetz (N.Y. 1986)
➢State v. Stewart (Kans. 1988)
➢Toops v. State (Ind. App. 1994)
➢State v. Shelley (Wash. App. 1997)
Chapter 7:
❖Introduction
➢The principle of actus reus stands on the fundamental idea that we punish people for what
they do, not for who they are. The principle of mens rea stands on the fundamental idea
that we can only punish people we can blame.
➢One person can be liable for someone else’s crimes. This liability arises in two ways:
■ 1) When an actor is liable for someone else’s conduct (complicity)
■ 2) When the relationship between two parties makes one party criminally liable for
another party’s conduct (vicarious liability)
❖Parties to Crime
➢Complicity establishes when you can be criminally liable for someone else's conduct. It
applies criminal liability to accomplices and accessories because they participate in crimes
➢Vicarious liability establishes when a party can be criminally liable because of a
relationship. VIcarious liability transfers the criminal conduct of one party to another
because of their relationship
➢Why should we be held to account for someone else’s crimes?
■ The agency theory of accomplice liability assumes that we’re autonomous agents
with the freedom to choose our actions. We become accountable for someone
else’s actions when we voluntarily “join in and identify with those actions”
■ Forfeited personal identity theory is the idea that when you choose to participate in
crime, you forfeit your right to be treated as an individual. In effect, you say, “Your
acts are my acts”
➢The Criminal Law in Focus box defines the four common law parties to crime. These four
distinct categories used to be important because of the common law rule that the
government couldn’t try accomplices until principals in the degree were convicted
➢Today, there are two parties to criminal complicity:
■ 1) Accomplices, participants before and during the commission of crimes
■ 2) Accessories, participants after crimes are committed
❖Participation Before and During the Commission of a Crime
➢All participants before and during the commission of a crime (accomplices) are prosecuted
for the crime itself
➢Participation before and during a crime (accomplice liability) is a very serious business,
because the punishment for being an accomplice is the same as for the person who
actually committed the crime
➢Participation after crimes are committed (accessory liability) is prosecuted as a separate,
minor offense (for example, accessory to murder). Accessories are punished for
misdemeanors, a much less serious offense, because accessories are considered
obstructers of justice, not felons
➢Conspiracy is an agreement to commit some other crime. A conspiracy to commit murder
is not murder; it’s the lesser offense of agreeing to commit murder. Participating in a
murder is the crime of murder itself
■ The rule that the crime of conspiracy and the crime of conspirators agree to commit
are separate offenses is called the Pinkerton rule
➢You’ll usually see words borrowed from the old common law of principals and accessories
to define accomplice actus reus in modern accomplice statutes
■ The words “aid,” “abet,” “assist,” “counsel,” “procure,” “hire,” or “induce” are
widespread
● The meaning of these words boils down to one core idea: The actor took
“some positive act in aid of the commission of the offense”
■ Words can also qualify as accomplice actus reus if they encourage and approve
the commission of the crime. Mere presence at the scene of a crime is not enough
to qualify as accomplice actus reus
● According to the mere presence rule, even presence at the scene of a
crime followed by flight isn’t enough action
◆There’s one major exception to the mere presence rule: when
defendants have a legal duty to act, presence alone is enough to
satisfy the actus reus requirement
■ One final point about accomplice actus reus: actions taken after crimes are
committed aren’t themselves accomplice actus reus, but juries can use
participation after the crime to prove defendants participated before or during the
commission of the crime
➢Early court decisions ruled that knowingly helping someone was enough to prove the
mental element required for accomplice liability (accomplice Mens Rea)
❖Elements of Accomplice Liability
❖Participation After the Commission of a Crime
➢In common law, accessories after the fact were punished like accomplices: they were
treated as if they’d committed the crime itself. So, if you gave a burglar a place to hide
after he’d committed burglary, you were also guilty of burglary
■ But accessories aren’t really burglars
➢Modern statutes have reduced the punishment to fit this less serious offense. Accessory
after the fact (now called simply “accessory”) is a separate offense, usually a
misdemeanor.
➢Most Accessory-after-the-fact statutes have four elements, which includes one actus reus,
two mens rea, and one circumstance element:
■ 1) The accessory personally aided the person who committed the crime (the actus
reus element)
■ 2) The accessory knew the felony was committed (mens rea element)
■ 3) The accessory aided the person who committed the crime for the purpose of
hindering the prosecution of that person (mens rea element)
■ 4) Someone besides the accessory actually committed a felony (the circumstance
element)
❖Elements of Accessory-After-the-Fact Liability
➢Actus Reus (Voluntary Act) - Aiding a felon to avoid arrest, prosecution, or conviction +
Mens Rea (General Intent) - Intent to aid a felon to avoid arrest, prosecution, or conviction
+ Circumstance - If any required by statute = Criminal Conduct
❖Vicarious Liability
➢Vicarious liability refers to liability that is imposed for someone else’s acts. It transfers the
actus reus and the mens rea from one person to another person - or from one or more
persons to an enterprise - because of their relationship
➢Corporate Liability
■ There are effects of making a corporation an “artificial being” that can commit
crimes and be held responsible for those committed by employees
■ The history of corporations began with the charters the English monarchs granted
as a privilege exchanged for money. In other words, they were government entities.
The Industrial Revolution dramatically changed the nature of corporations from
government entities controlled by government to private business operated by
internal management
■ Corporal criminal law began as (and still is) the creature of federal law, stemming
from the “contracts” and “commerce” clauses in the U.S.Constitution
■ During most of the twentieth century, the belief that self-regulation is the best
model to make sure that corporations are meeting their obligations to shareholders
and the public prevailed. That belief continues today.
■ Supreme Court Justice William O. Douglas told a congressional committee that if
self-regulation of the stock market was to succeed, the Securities and Exchange
Commission had to play an important, but residual, role
■ The weaknesses of self-regulation are well recognized, as this list in1973 still
demonstrates:
● Lack of enthusiasm for regulation by the regulated group
● Temptation to use a corporate facade of regulation as a “shield to ward off
meaningful regulation”
● Business people’s “tendency to use collective action to advance their
interests through the imposition of purely anti competitive restraints as
opposed to those justified by regulatory needs”
● Resistance to regulatory changes because of the economic interest in
preserving the current status
■ Professor Miriam Weismann (2009) sums up the history and current state of
corporate regulation:
● This means that the government is not in a meaningful position to prevent
misconduct. Instead, its role is largely reactive, punishing and/or
prosecuting once the misconduct is uncovered
■ The Court’s rationale for extending vicarious liability by the doctrine of respondeat
superior was the “history of the times”
● While the law should have regard to the rights of all, and to those of
corporations no less than to those of individuals, it cannot shut its eyes to
the fact that the great majority of business transactions in modern times are
conducted through these bodies, and particularly that interstate commerce
is almost entirely in their hands, and to give them immunity from all
punishment because of the old and exploded doctrine that a corporation
cannot commit a crime would virtually take away the only means of
effectually controlling the subject-matter and correcting the abuses aimed at
■ Those were the “good old days” when the typical corporate crime case involved
“slush funds,” fraudulent billing schemes, and tax cheats. Corporate crime was an
“inside job,” and the corporate criminals hid the misconduct from their accountants
and lawyers
● Corporate “watchdogs” (law firms, accounting firms, auditors, investment
advisors, banks, and even regulators) who were supposed to “bark” when
the public interest was threatened were silent; even worse, they were part
of the “runaway organizational corporate behavior that injected chaos ito
America’s capital markets”
➢Vicarious liability cases that attract the most attention involve large national corporations
like Enron and their derivatives, like Arthur Andersen LLP,in trials that are tried in federal
courts
■ Most common are cases of employees’ crimes, committed within the scope of their
employment but without the approval or knowledge of their employers
➢Because state individual vicarious liability, like federal corporate vicarious criminal liability,
depends on statues, the issue in most vicarious liability cases its interpreting whether the
statute actually imposes vicarious liability
➢Virtually all vicarious liability statutes involve the employer-employee relationship. But not
all do:
■ In some states and municipalities, registered vehicle owners are liable for some
traffic violations involving their vehicles, regardless of who violated the law
■ Another non business relationship subject to individual vicarious criminal liability is
parents’ criminal liability for their kids’ crimes
● Traditional parent responsibility statutes aren’t the same as vicarious
liability. Parental responsibility statutes are based on parents’ acts and
omissions; vicarious liability statutes are based on the parent-child
relationship. Vicarious liability statutes grew out of public fear, frustration,
and anger over juvenile violence and parents’ failure to control their kids
❖Key Cases
➢State v. Ulvinen (Minn. 1981)
➢State v. Chism (La. 1983)
➢State v. Zeta Chi Fraternity (N.H. 1997)
➢City of Waukesha v. Boehnen (Wis. App.)
➢State v. Akers (N.H. 1979)
Chapter 8:
❖Intro
➢Criminal attempts - trying to commit crimes but failing to complete them
➢Criminal conspiracy - making agreements to commit crimes
➢Criminal solicitation - trying to get someone else to commit a crime
■ We call these crimes inchoate offenses
➢Each inchoate offense has some of its own elements, but they all share two elements: the
mens rea of purpose or specific intent and the actus reus of taking some steps toward
accomplishing the criminal purpose - but not enough steps to complete the intended crime
➢Unlike the principles in the general part, inchoate crimes are specific crimes, such as
attempted robbery. But, like the general part, they apply to many crimes such as in the
mental attitude of specific intent or purpose and the voluntary acts that fall short of
completing the intended crime. That’s why the Model Penal Code designates them
“offenses of general application”
➢Inchoate crimes asks the question: How far should criminal law go to prevent crime by
punishing people who haven’t accomplished their criminal purpose?
➢Creating criminal liability for uncompleted crimes flies in the face of the notion that free
societies punish people for what they’ve done, not for what they might do
■ The doctrine of inchoate crimes reflects the widely held belief that “an ounce of
prevention is worth a pound of cure.” The law of inchoate crimes resolves the
dilemma by three means:
● 1) Requiring a specific intent or purpose to commit the crime or cause a
harm
● 2) Requiring some action to carry out the purpose
● 3) Punishing inchoate crimes less severely than completed crimes
❖Attempt
➢Attempt Law History
■ Until the 1500s, the English common law sided with Bracton; in attempts, “a miss
was as good as a mile”
■ Modern attempt law began in the 1500s England out of frustration with this
“excessive leniency” in a violent society where tempers were short and hot, and
everyone was armed. The famous royal court (a special court of the monarch not
bound by common law rules) that met in the Star Chamber started punishing a
wide range of potential harms, hoping to nip violence in the bud
■ In the early 1600s, stressing the need to prevent the serious harms spawned by
dueling
■ By the late 1700s, the English law courts had created a full-fledged law of attempt
■ By the 1800s, common law attempt was well-defined
■ Some jurisdictions still follow the common law of attempt
➢Why do we punish people who haven’t hurt anyone? There are two old and firmly
entrenched rationales. One focuses on dangerous acts (actus reus), the other on
dangerous persons (mens rea).
■ The dangerous act rationale looks at how close defendants came to completing
their crimes.
● The dangerous act rationale aims to prevent harm from dangerous conduct,
so its concern is how close to completion the crime was
■ The dangerous person rationale concentrates on how fully defendants have
developed their intent to commit their crime
● The dangerous person rationale aims to neutralize dangerous people, so it
looks at how developed the defendant’s criminal purpose was
➢The crime of attempt consists of two elements:
■ 1) Intent or purpose to commit a specific crime and
■ 2) An act, or acts, to carry out the intent
➢A general attempt statute is a single statute that applies to the attempt to commit any
crime in the state’s criminal code
➢Specific attempt statutes define attempts in terms of specific crimes in the criminal code,
such as attempted murder, attempted robbery, and attempted rape in separate statutes
➢“Attempt” means to try, and you can’t try to do what you don’t specifically intend to do. As
one authority put it, “An attempt without intent is unthinkable; it cannot be”
■ When it comes to attempt mens rea, you don’t have to worry about the difficult task
of figuring out whether it was knowing,reckless, negligent, or strict liability. Why?
Because attempt mens rea always requires the specific intent to commit a crime
➢Preparing to carry out your intention to commit a crime doesn’t qualify as an attempt to
commit a crime. Attempt actus reus requires that you take some steps toward completing
the crime
■ The strictest rule of attempt actus reus called the last act rule - namely, that
someone has committed all but the last act necessary to complete the crime
● Most real cases aren’t so easy. They fall somewhere between mere intent
and “all but the last act” necessary to complete the crime. The toughest
question in attempt law may be, “How close to completing a crime is close
enough to satisfy the criminal act requirement of attempt?” The general
answer is somewhere on a continuum between preparation and the last act
■ Courts and attempt statutes have established proximity tests that help decision
makers decide when defendants’ acts have take them further than mere
preparation, and brought them close enough to completing crimes to satisfy the
attempt actus reus requirement
● The tests focus on two theories of attempt: dangerous conduct and
dangerous people.
◆Dangerous proximity tests focus on dangerous conduct; they look at
what remains for actors to do before they hurt society by completing
the crime
◆Dangerous person tests look at what actors have already done to
demonstrate that they’re a danger to society, not just in this crime
but, more important, in crimes they might commit in the future if
they’re not dealt with now
● The approaches of the tests aren’t mutually exclusive
◆The tests are a variety of approaches available to describe more
definitely the acts that are enough to fall within the spectrum
between the end of preparation yet short of the completed crime
and/or that demonstrate a clear mental determination to commit the
crime
● The proximity tests ask, “Were the defendant’s acts close enough to the
intended crime to count as the criminal act in the attempt?” Before we can
answer that, we have to answer the question, “How close is close enough?”
We’ll look at six tests that try to answer this question:
◆1) All but the last act test
◆2) Dangerous proximity to success
◆3) Indispensable element test
◆4) Unequivocality test
◆5) Probable desistance test
◆6) Substantial steps test
➢All but the last act test
■ No cases or statutes have limited attempt actus reus to the last act. Of course, “all
but the last act” satisfies the proximity test. The problem with this strict test is that it
excludes dangerous conduct that falls short of the last proximate act that should be
included
● According to widely cited and quoted criminal law Professor Joshua
Dressler, “Today, there is general agreement that an attempt occurs at least
by the time of the last act, but no jurisdiction requires it”
● Some courts have adopted broader proximity tests to help judges decide
whether the facts that juries have found the prosecution has proven beyond
a reasonable doubt are enough. That is, they help to decide whether the
defendant’s acts fall within the spectrum between preparation (which clearly
doesn't satisfy the proximity test) and the last proximate act, which clearly
does
➢Dangerous proximity to success test
■ The dangerous proximity to success test (also called the physical proximity test)
asks whether defendants have come “dangerously close” to completing the crime
■ This test focuses on what actors still have to do to carry out their purpose to
commit crimes, not on what they’ve done already to commit them
➢Indispensable element test
■ The indispensable element test asks whether defendants have reached a point
where they’ve gotten control of everything they need to complete the crime
➢Unequivocality test
■ The unequivocality test, also called the res ipsa loquitur test (“the act speaks for
itself”), examines whether an ordinary person who saw the defendant’s acts without
knowing his intent would believe he was determined to commit the intended crime
■ The distinguished Professor Glanville Williams criticizes the unequivocality test
because in ambiguous
➢Probable Desistance Test
■ The probable desistance test, another dangerous person test, focuses on how far
defendants have gone, not on what’s left for them to do to complete the crime. The
test determines if defendants have gone far enough toward completing the crime
that it’s unlikely they’ll turn back
➢The model penal code (MPC) Substantial Steps Test
■ The Model Penal Code’s substantial steps test (also called the “MPC test”) was
designed to accomplish three important goals:
● 1) Replace (or at least drastically reform) the proximity and unequivocality
tests with a clearer and easier to understand and apply test
● 2) Draw more sharply (and push back further toward preparation) the line
between preparation and beginning to attempt the crime
● 3) Base the law of attempt firmly on the theory of neutralizing dangerous
persons, not just on preventing dangerous conduct
■ In line with these goals, the MPC’s cubstantial steps test for attempt actus reus
includes two elements:
● 1) “Substantial steps” toward completing the crime
● 2) Steps that “strongly corroborate the actor’s criminal purpose”
■ In other words, the code requires that attempters take enough steps toward
completing the crime not to show that a crime is about to occur but to prove that
the attempters are determined to commit it
➢The “vast majority” of current criminal codes have adopted the MPC “substantial steps”
language, but most have not included the MPC seven facts that push attempt back into
what traditionally and still are considered acts of preparation,not of attempt
➢Failure to commit a crime can be due to several causes: police officers might show up;
victims might resist and escape; a passerby might appear. These are all circumstances
beyond the attempter’s control, and they’re not defenses to a charge of attempt
■ (1) legally impossible attempts and (2) abandoned attempts
➢A legal impossibility occurs when actors intend to commit crimes, and do everything they
can to carry out their criminal intent, but the criminal law doesn’t ban what they did
■ Legal impossibility requires a different law to make the conduct criminal
➢A factual impossibility occurs when actors intend to commit a crime and try to but it’s
physically impossible due to some fact or circumstance unknown to them
■ Factual impossibility requires different facts to complete the crime
➢In most jurisdictions, legal impossibility is a defense to criminal attempt; factual
impossibility isn’t
■ The main reason for the difference is that to convict someone for conduct that the
law doesn’t prohibit, no matter what the actor’s intentions, violates the principle of
legality - no crime without a law, no punishment without a crime. Factual
impossibility, on the other hand, would allow a chance to determine criminal liability.
A person who’s determined to commit a crime, and who does enough to succeed in
that determination, shouldn’t escape responsibility and punishment because of a
stroke of good luck
➢We know from the last section that those bent on committing crimes and have taken steps
to carry out their criminal plans can’t escape criminal liability just because an outside force
or person interrupted them, namely an extraneous factor. But what about people who
clearly intend to commit crimes, take enough steps to carry out their intent, and then
change their mind and voluntarily abandon the scheme?
■ According to the voluntary abandonment defense (also called voluntary
renunciation defense), defendants who voluntarily and completely renounce their
criminal purpose can avoid criminal liability
➢A renunciation is not “voluntary and complete” within the meaning of this chapter if it is
motivated in whole or in part by either of the following:
■ 1) A circumstance which increases the probability of detection or apprehension of
the defendant or another participant in the criminal operation or which makes more
difficult the consummation of the crime
■ 2) A decision to postpone the criminal conduct until another time or to substitute
another victim or another but similar objective
➢Supporters of the voluntary abandonment defense favor it for two reasons.
■ First, those who voluntarily renounce their criminal attempts in progress (especially
during the first acts following preparation) aren’t the dangerous people the law of
attempt is designed to punish; they probably weren’t even bent on committing the
crime in the first place.
■ Second, at the very end of the progress to completing the crime, it prevents what
we most want- the harm the completed crime is about to inflict on victims
■ This defense encourages would-be criminals to give up their criminal designs by
the promise of escaping punishment.
■ Opponents say the defense encourages bad people to take the first steps to
commit crimes because they know they can escape punishment
➢“On balance” arguments in favor of the defense are “more persuasive than the arguments
against the defense” The arguments supporting the defense include:
■ 1) Complete and voluntary renunciation of criminal purpose shows the defendant
isn’t dangerous
■ 2) Those “who have crossed the threshold of attempt will still be encouraged to
desist and thereby escape punishment”
■ The counterargument is that the defense may “embolden” those who are thinking
about committing a crime to take the first steps toward committing the crime when
they know they can withdraw without negative consequences
➢The core of conspiracy is an agreement to commit a crime. It’s this agreement that gives
rise to criminal liability, by transforming a lonely criminal thought hatched in the mind of a
single, powerless individual into an agreement with another person
➢Conspiracy, the crime of agreeing with one or more people to commit a crime, is further
removed from actually committing a crime than attempts to commit crimes. In fact, there
are two public policy justifications for attaching criminal liability to actions further away
from completion than attempts:
■ 1) Conspiracy works hand in hand with attempts to nip criminal purpose in the bud
■ 2) Conspiracy strikes at the special danger of group criminal activity
➢Conspiracy actus reus consists of two parts: 1) an agreement to commit a crime (in all
states) and 2) and overt act in furtherance of the agreement (in about half the states)
■ The heart of the crime of conspiracy is the act of agreement between two or more
people to commit a crime. The agreement doesn’t have to be a signed written
contract. It’s “not necessary to establish that the defendant and his co conspirators
signed papers, shook hands, or uttered the words ‘we have an agreement’”
■ Facts and circumstances that point to an unspoken understanding between the
conspirators are good enough to prove the conspirators agreed to commit a crime.
This rule makes sense because conspirators rarely put their agreements in writing
■ The rule might make sense, but it encourages vague definitions of “agreement”
that can lead to injustice
■ In about half the states, the agreement itself satisfies the actus reus of conspiracy.
The other half and the federal courts require the act of agreeing to commit a crime
plus another act to further the agreement; the second act is called the overt act
requirement
■ Why the requirement of an “overt act”? To verify the firmness of the agreement.
The overt act doesn’t have to amount to much. It may “be of very small
significance”
➢Conspiracy mens rea, the mental element in conspiracy, wasn’t defined clearly at common
law, and most modern legislatures haven’t made it any clearer. This leaves the courts to
define it. The courts in turn have taken imprecise, widely divergent, and inconsistent
approaches to the mens rea problem
➢A criminal objective is the criminal goal of an agreement to commit a crime
➢Courts further complicate conspiracy mens rea by not clarifying whether it requires
purpose. Consider cases involving suppliers of goods and services,such as doctors who
order drugs from pharmaceutical companies that they then use or sell illegally
➢Do prosecutors have to prove the supplier agreed specifically to further the buyers’
criminal purpose? Most courts say yes, even though that kind of proof is difficult to obtain,
because as we’ve already seen, conspirators aren’t foolish enough to put proof of their
crimes in writing. So purpose has to be inferred from circumstances surrounding the
agreement, such as quantities of sales, the continuity of the supplier-recipient relationship,
the seller’s initiative, a failure to keep records, and the relationship’s clandestine nature.
Some argue that knowing, or conscious, wrongdoing ought to satisfy the conspiracy mens
rea
➢The traditional definition of “conspiracy” includes the attendant circumstance element that
agreements involve “two or more parties agreeing or combining to commit a crime.” Most
modern statutes have replaced this traditional definition with a unilateral approach to
conspiracy parties that doesn’t require that all conspirators agree - or even know- the other
conspirators
➢When there’s more than one party, failure to convict one party doesn’t prevent conviction
of other parties to the conspiracy. Typically, statutes are similar to the Illinois Criminal
Code, which provides:
■ It shall not be a defense to conspiracy that the person or persons with whom the
accused is alleged to have conspired:
● 1) Has not been prosecuted or convicted, or
● 2) Has been convicted of a different offense, or
● 3) Is not amenable to justice, or
● 4) Has been acquitted, or
● 5) Lacked the capacity to commit an offense
➢Conspiracy is an agreement but an agreement to do what? In the old days, the criminal
objective of the conspiracy was defined to cover a broad spectrum. The objective could be
as narrow as an agreement to commit a felony or as broad as agreements to
■ Commit “any crime”
■ Do “anything unlawful”
■ Commit “any act injurious to the public health, or for the perversion of or
obstruction of justice, or due administration of the laws”
■ Do even “lawful things by unlawful means”
➢In most modern statutes the criminal objective of the conspiracy is almost always limited to
agreements to commit crimes. The vague definitions of the elements in conspiracy offer
considerable opportunity for prosecutorial and judicial discretion. At times, this discretion
borders on abuse, leading to charges that conspiracy law is unjust
■ First, a general criticism is that conspiracy law punishes conduct too far remote
from the actual crime
■ Second, labor organizations, civil liberties groups, and large corporations charge
that conspiracy is a weapon against their legitimate interests of, respectively,
collective bargaining and stires, dissent from accepted points of view and public
policies, and profit making
➢Critics say that when prosecutors don't have enough evidence to convict for the crime
itself, they turn, as their last hope, to conspiracy. Conpiracy’s vague definitions greatly
enhance the chance for a guilty verdict. Not often mentioned, but extremely important, is
that intense media attention to conspiracy trials can lead to abuse
➢Several states have made efforts to overcome these criticisms by defining conspiracy
elements more narrowly. The definitions of “agreement or combination” (two or more
parties combining to commit crimes) are no longer as vague as they once were
➢The Model Penal Code has adopted the overt act requirement (acts in furtherance of the
act of agreement), and about half the states are following that lead.
■ Those states have refined mens rea to include only purposeful conduct - that is, a
specific intent to carry out the objective of the agreement or combination.
Knowledge, recklessness, and negligence are increasingly attacked as insufficient
culpability for an offense as remorse from completion as conspiracy
● Furthermore, most recent legislation restricts conspiratorial objectives to
criminal ends. Phrases such as “unlawful objects,” “lawful objects by
unlawful means,” and “objectives harmful to public health, morals, trade,
and commerce” are increasingly regarded as too broad, and, therefore,
unacceptable
➢The relationship of parties to conspiracies can get intricate, particularly when they involve
large operations. Most of these large-scale conspiracies fall into two major patterns:
“wheel” and “chain” conspiracies.
■ In wheel conspiracies, one or more defendants participate in every transaction.
These participants make up the hub of the wheel conspiracy
■ Others participate in only one transaction; they are the spokes in the wheel. In
chain conspiracies, participants at one end of the chain may know nothing of those
at the other end, but every participant handles the same commodity at different
points, such as manufacture, distribution, and sale
● Chain conspiracies often involve the distribution of some commodity, such
as illegal drugs
➢Despite efforts to restrict the reach of conspiracy, the Racketeer Influenced and Corrupt
Organizations Act (RICO) demonstrates the continued vitality of conspiracy law. RICO
reflects the need for effective means to meet the threat of racketeering posed by organized
crime. It imposes enhanced penalties for “all types of organized criminal behavior, that is,
enterprise criminality - from simple political to sophisticated white-collar schemes to
traditional Mafia-type endeavors
➢Racketeering originally referred to the extortion of money or advantage by threat or force.
Today, the meaning has expanded to encompass a pattern of illegal activity (such as
extortion and murder) carried out in the furtherance of an enterprise owned or controlled
by those engaged in the activity
➢The clumsy title Racketeer Influenced Corrupt Organization Act - universally called by its
acronym RICO - refers to a controversial federal statute that originated under President
Lyndon Jphnson in 1968 and was signed into law by President Richard Nixon in
1970.RICO created several new crimes, reinstated property forfeiture as punishment for
crime, and introduced a new civil action that allows RICO victims to sue RICO offenders
➢RICO grew out of fear that organized crime was infiltrating legitimate businesses, a
problem widely publicized after President Johnson’s Crime Commission highlighted the
problem in 1967. The original idea was to make it a crime to invest money gotten by crime
in legitimate businesses. But RICO as enacted created a series of crimes that went far
beyond organized crime’s investing their ill-gotten money to infiltrate legitimate
businesses. RICO’s broadest and most often prosecuted crime consists of three elements:
■ 1) Conducting the affairs of any “enterprise” (defined as “just about any form of
human endeavor”)
■ 2) by means of a “pattern of racketeering activity” (defined as committing two or
more of a huge list of related crimes)
■ 3) that do or threaten to continue for a period of time
➢In fact, it’s not clear that RICO involves any conduct at all. Judge Lynch has called RICO
crimes “the crime of being a criminal.” Probably more accurately, RICO is akin to
accomplice and vicarious criminal liability and to conspiracy
➢RICO’s broad definitions make it a crime for anyone with a “significant role in operating a
business, government office,labor union, social or political organization, or informal
grouping” to commit a series of crimes (two is enough) either to further the organization’s
or informal group's goals or simply by using its resources
➢RICO’s most dramatic success story is its use in organized crime cases. Its success is due
to the relational nature of RICO that we noted earlier. Almost all murder, rape, robbery,
and other “traditional” trials focus on a single defendant who’s committed a single crime.
The rules are established to keep each crime and each defendant separate from one
another. It’s the opposite in RICO prosecutions
➢The operation of an enterprise - say a “criminal gang” - through a pattern of racketeering
(at least two separate crimes) is defined in RICO as a single crime. RICO trials look and
feel different. Here’s how:
■ 1) Evidence that the defendant associates with disreputable people isn’t prejudicial
like it is in a tradition trial; it’s essential to the government’s proof of the “enterprise”
element
■ 2) Multiple crimes, even crimes very different in nature, are relevant to prove the
pattern element
■ 3) Mass trials of large numbers of defendants charged with the same RICO
enterprise are expected
➢Elements of Conspiracy
■ Actus Reus (Voluntary Act) - 1. Agreement to commit a crime and 2. Some act
toward carrying out the agreement + Mens rea (General Intent) - 1. Specific intent
(purpose) to commit a crime or 2. Specific intent (purpose) to commit a legal act by
illegal means + Circumstance- If any required by statute = Criminal Conduct -
Danger of agreeing to commit the designated crime
➢RICO’s broad definition has also made RICO an “attractive tool for prosecutors in serious
white-collar criminal cases” These prosecutions have their critics too. Most RICO
white-collar crime prosecutions rely on federal mail and wire fraud statutes. These laws
ban the use of the mail and interstate electronic communications to aid a “scheme to
defraud.” And, they’re “almost infinitely adaptable to cover a wide range of financial and
business misconduct.” But, they, as well as securities law violations, also count as the
predicate offenses (“pattern offenses”) that trigger RICO prosecution
➢RICO gives wealthy white-collar defendants, who have the resources to fight the system
that most defendants lack, a taste of the realities of plea bargaining justice as it is
experienced every day by less well-healed defendants
➢Government corruption cases make up the largest number of RICO cases under RICO
Section 1962. Government employees are charged in these cases with conducting the
affairs of a government agency through a pattern of bribery, corruption, and mail fraud.
Notice that these cases - the most numerous - have nothing to do with organized crime
■ There’s no federal statute making state and local government corruption a federal
crime. But RICO fills this gap, allowing federal prosecutors to prosecute state and
local officials- with much more severe penalties and without the hesitation local
prosecutors might feel about prosecuting fellow officials
➢Critics aren’t pleased with this federal “meddling” in local political affairs. There’s also a
problem of fairness. Under RICO “racketeering” doesn’t have to involve serious offenses
➢RICO permits prosecutors to decide to seek harsher penalties without providing any
aggravating circumstances
➢RICO authorizes high maximum fines and long maximum prison sentences (imprisonment
for 25 years, and for life, if one of the predicate crimes is murder).
■ In addition, RICO imposes a mandatory penalty of forfeiture to the U.S.
government of not only money and property derived from the crime but any interest
the defendant holds in the enterprise or any property of any kind that “provides a
source of influence over the enterprise” Forfeiture aims not only to punish the
offender but to “deny continuing power over an enterprise to anyone who has
corrupted it to criminal ends”
❖Elements of Attempt Liability
➢Actus Reus (Voluntary Act) - 1. Substantial steps toward completion of the crime or
Minority Rules: Acts demonstrating, 2. Physical proximity to completion of the crime or 3.
Indispensable element for completion of the crime or 4.Unequivocality that the crime will
be committed or 5. Probable desistance from completing the crime + Mens Rea (General
Intent) - Specific Intent (purpose) to commit the attempted crime + Circumstance - If any
required by statute = Criminal Conduct - Danger of trying to commit the designated crime
❖Solicitation
➢Solicitation, the crime of trying to get someone else to commit a crime. The crime is
complete the instant the solicitor communicates the solicitation to the other person.
Against the objection that to punish the bare act of solicitation was punishing the “intent to
commit evil” which isn't a crime, the Connecticut Supreme Court wrote, “The solicitation is
an act; and God forbid that it should not be considered as an offense”
➢There’s disagreement about whether trying to get someone else to commit a crime, even
though they don’t comply, is dangerous enough to be a crime. Those in the “not dangerous
enough” group make two arguments to support their position.
■ First, solicitation isn't dangerous enough conduct because an independent moral
agent (the person solicited) stands between solicitors and their criminal objectives
■ Second, solicitors aren’t dangerous enough people. They prove it by turning to
someone else to do what they’re too timid to do themselves
➢Those in “dangerous enough” group have their own arguments.
■ First, they say solicitation is just another form of the danger created by group
participation in crime, only more removed from the completed crime than
conspiracy - kind of like an attempted conspiracy
■ Second, solicitors are intelligent, artful masters at manipulating others to do their
dirty work
➢The criminal act in criminal solicitation consists of words, but the law only imprecisely tells
us what words qualify as solicitation actus reus. Courts agree that statements that merely
favor committing a crime aren’t enough to qualify as criminal acts
➢There has to be some kind of inducement to commit a crime. The typical words we see in
the statutes and court opinions are like the ones we saw in accomplice liability
■ In other words, the criminal act in solicitation consists of the effort to get another to
commit a crime, whether or not the solicitationever ripens into a completed crime
■ Soliciting “audiences” can be precise enough
➢Solicitation is a specific-intent crime; that is, it’s a crime of purpose. The solicitation mens
rea requires words that convey that their purpose is to get someone to commit a specific
crime
➢Some statutes restrict the circumstance element of the criminal objective of the solicitation
to committing felonies - in some cases, to committing violent felonies. In other jurisdictions,
it’s a crime to solicit another to commit any crime, whether it’s a felony, misdemeanor, or
violation.
■ Furthermore, solicitation doesn’t have to include an inducement to commit a
criminal act at all
➢Someone who urges another to commit those crimes has committed the crime of
solicitation
❖Elements of Solicitation
➢Actus Reus (Voluntary Act) - Words commanding, urging, or encouraging another person
to commit a crime + Mens Rea(General Intent) - specific intent (purpose) to induce another
person to commit a crime + Circumstance - if any required by statute = Criminal conduct -
danger of trying to get someone to commit or participate in a crime
❖Key Cases
➢Dabney v. State (2004)
➢State v. King (S.C. App. 2015)
➢George Lee Mims, Sr. v. U.S. (5th Cir. 1967)
➢State v. Damms (Wis. 1960)
➢Le Barron v. State (Wis. 1966)
Griffin v. Gipson (2015)
➢Alexander v. U.S. (1993)
➢State v. Schleifer (Conn. 1923)
Chapter 9
❖Introduction
➢Of crimes injurious to persons, the most important is the offense of taking away that life,
which is the immediate gift of the great creator; and which therefore no man can be
entitled to deprive another of
➢Of course, raping, assaulting, and kidnapping harm people, too; but however awful they
may be, they leave their victims alive
❖Criminal Homicide in Context
➢In 2013, (the most recent official number(s), there were 14,196 murders reported to the
FBI compared with 1,163,146 total violent felonies
➢The three-step analysis of criminal liability - (1) criminal conduct, (2) without justification, or
(3) excuse - grew out of the great work on the law of criminal homicide written by the
principal drafter of the Model Penal Code (MPC), Professor Herbert Wechsler at Columbia
Law School
➢Most of the law of homicide is devoted to answering questions like: Is this murder first or
second degree? Is that killing murder or manslaughter? Is this manslaughter voluntary or
involuntary?
■ It does make a big legal and practical difference. Why? Because the punishment
for criminal homicide depends on the degree of murder or the type of manslaughter
committed
■ Three elements of criminal homicide - actus reus, mens rea, and special mitigating
and aggravating circumstances - are used to define the kinds and grade the
seriousness of criminal homicides
➢But there’s more than a philosophical question here. There’s the policy question of the kind
and amount of punishment to inflict on people who kill other people
❖The Meaning of “Person” or Human Being
➢Killing another “person” is central to criminal homicide liability because it defines who’s a
victim. “Person” seems like a simple concept to understand. However, it raises deep
philosophical questions and hot controversy
➢The definition of “person” for purposes of criminal homicide presents problems at both
ends of the life cycle- when life begins and when it ends. When life begins tells us when a
potential victim becomes a real victim; when life ends tells us when a real victim is no
longer a victim
➢Throughout most of its history, homicide law has followed the born-alive rule
■ To be a person, and therefore a homicide victim, a baby had to be “born alive” and
capable of breathing and maintaining a heartbeat on its own
■ Some courts in states that follow the born-alive rule have interpreted their statutes
to include deaths caused by prenatal injuries if the fetus dies after it’s born alive
➢While the homicide statutes require that the victim be a “person,” they do not limit the
nature or timing of the injury that causes the death of the “person”
➢In 24 states, it’s a crime to kill a fetus. They’ve done this in three ways:
■ 1) Revise their existing homicide statutes to include fetuses as homicide victims
■ 2) Create new homicide statutes aimed exclusively at fetuses
■ 3) Create statutes that punish attacks on pregnant women that cause death to the
fetuses they’re carrying
➢Other state legislatures have left their homicide statutes intact and created the new crime
of feticide, specifically directed at the killing of fetuses. These special feticide statutes vary
as to when in the gestational development criminal liability attaches
➢It used to be easy to define “death”: when the heart and breathing stop. Not anymore.
Determining when life ends has become increasingly complex as organ transplants and
sophisticated artificial life support mechanisms make it possible to maintain vital life signs
■ Still, to kill a dying person, to accelerate a person’s death, or to kill a “worthless”
person is clearly homicide under current law
➢The concept of brain death has complicated the simple definition as to when the heart and
breathing stop
■ If artificial supports alone maintain breathing and the heartbeat while brain waves
remain minimal or flat, brain death has occured
■ The Uniform Brain Death Act provides that an individual who has suffered
irreversible cessation of all brain functions, including those of the brain stem, is
dead
➢More difficult cases involve individuals with enough brain functions to sustain breathing
and a heartbeat but nothing more, such as patients in a deep coma
■ Troubling cases arise in which patients in a deep coma have been described by
medical specialists as “vegetables” but regains consciousness and live for a
considerable time afterward
❖Murder
➢The common law divided homicides into two kinds, and so do modern criminal codes, the
MPC, and this chapter. The two kinds are:
■ 1) Murder, killin a person with “malice aforethought,” which we’ll defines and
discuss in this section
■ 2) Manslaughter, killing a person without malice aforethought, which we’ll discuss
in the “Manslaughter” section
➢According to Blackstone, malice aforethought was the “grand criterious, which now
distinguishes murder from other killing”
■ These two divisions were in turn divided into several kinds of murder and
manslaughter, and, eventually, some special kinda of homicide, such as vehicular
homicide were added
➢History of Murder Law
■ Our modern law of criminal homicide took centuries to develop. Over several
centuries, the English common law judges had developed two broad kinds of
homicide, criminal and noncriminal.
■ By the 1550s, the common law judges, with the help of growing number of statutes,
had further divided criminal homicide into murder and manslaughter and
noncriminal homicide into justifiable and excusable homicide
■ By 1700, the English common and statute laws of homicide and the American
colonies’ law recognized three kinds of homicide:
● 1) justifiable homicide, killing in self-defense, capital punishment, and law
enforcement use of deadly force
● 2) excusable homicide, killings done by someone “not of sound memory
and discretion” (insane and immature)
● 3) criminal homicide, all homicides that are neither justified nor excused
■ In the early 1600s, Sir Edward Coke wrote that common law murder occured when
a person “of sound memoryand discretion, unlawfully killeth any reasonable
creature in being and under the king’s peace, with malice aforethought, either
express or implied”
■ Here’s how Blackstone defined the elements of common law murder in 1769:
● 1) Sound memory and discretion excused “lunatics and infants” from
criminal liability
● 2) “Unlawfully” meant killing without justification or excuse
● 3) Killeth included causing death by “poisoning, striking, starving, drowning,
and a thousand other forms of death, by which human nature may be
overcome”
● 4) Reasonable creature in being is someone already born alive and
breathing at the time of the killing
● 5) Under the king’s peace meant “to kill an alien, a Jew, or an outlaw, who
are all under the king’s protection,is as much murder as to kill the most
regular Englishman; except he be an alien enemy in time of war”
● 6) With malice aforethought, express or implied
➢Elements of Common Law Murder
■ Actus Reus (Voluntary act) - voluntary act of killing another person + Mens Rea
(general intent) - express or implied malice aforethought + Circumstance - 1. Victim
a “reasonable” person or human being, 2. All persons except alien enemies in
times of war = Criminal Harm
➢Malice aforethought: At first “malice”meant with specific intent or killing on purpose- and
probably with some amount of spite, hate, or bad will. “Aforethought” meant the acts were
planned in advance of the killing
■ So the only kind of murder was intentional, premeditated killing - in other words,
killing with malice aforethought
➢After that, the judges invented new kinda of murder. First, they added intentional
(malicious) killings that weren’t premeditated. These included sudden killings during the
heat of passion, “unreasonably” provoked by the victim’s conduct
➢Next, the judges added unintended killings if they occurred during the commission of
felonies
➢Then came depraved heart murder, defined as extremely reckless killings. Recall here the
definition of “recklessly”: knowingly creating a substantial and unjustifiable risk. In the case
of a depraved heart murder, the risk is of death
➢The judges took one last step away from the premeditated, intentional killing requirement.
They created intent to cause serious bodily injury murder. No intent to kill was required
when a victim died following acts triggered by the intent to inflict serious bodily injury short
of death
➢Serious bodily injury has a technical meaning. Some states define it by statute, Here’s
Tennessee’s definition, which is similar to other states’ definitions: “Serious bodily injury”
means bodily injury that involves:
■ 1) A substantial risk of death
■ 2) Protracted unconsciousness
■ 3) Extreme physical pain
■ 4) Protracted or obvious disfigurement or
■ 5) Protracted loss or substantial impairment of a function of a bodily member,
organ or mental faculty
➢“Express” malice aforethought was reserved for killings that fit the original meaning of
“murder” - intentional killings planned in advance
➢“Implied” malice aforethought referred to the four additional kinds of murder we just
discussed:
■ 1) Intentional killings without premeditation or reasonable provocation
■ 2) Unintentional killings during the commission of felonies
■ 3) Depraved heart killings
■ 4) Intent to inflict grievous bodily harm killings
➢Elements of murder
■ Murder is a result crime. Therefore, proving murder requires proof beyond a
reasonable doubt of these elements:
● 1) Murder actus reus, the act of killing
● 2) Murder mens rea, intentional, knowing, or extremely reckless killing
● 3) Causation, the act caused
● 4) Death
● 5) Attendant circumstances, if there are any
■ Actus reus (Voluntary act) - voluntary act or killing another person + Mens rea
(general intent) - 1. Purposely or 2. Knowingly ot 3. Extremely recklessly +
circumstance - aggravating circumstances prescribed in first-degree murder statute
= Criminal harm
■ Murder actus reus
● “Killing” or “causing death” is the heart of murder actus reus, and it’s easy to
define
● “The killing may be by poisoning, striking, starving, drowning, and a
thousand other forms by which human nature can be overcome” (196). It
can also result from failures to act - such as a husband who stands by and
watches his blind wife, whom he hates, walk off the edge of a cliff
● Notice that how the murdered kills someone doesn’t matter in most cases.
But it can be circumstance element in first-degree murder or an aggravating
circumstance in death penalty cases.
◆Even though there were no degrees or murder at the time,
Blackstone (1769) teaches us that it’s murder if a victim dies after
“one beats another in a cruel and unusual manner”
■ Murder mens rea
● Murder mens rea can include every state of mind included in the concept of
malice aforethought. In the language of the Model Penal Code , purpose,
knowledge, and recklessness can qualify as the mental element in murder
❖Kinds and Degrees of Murder
➢The English judges never formally divided murder into degrees. All murders were capital
offenses. But the judges had enormous discretion to free all convicted felons by means of
“benefit of clergy,” a practice that began with a rule that allowed priests to be tried only in
ecclesiastical courts.
➢The judges manipulated the formality to mitigate informally the harshness of the common
law, which mandated that all felons, from cold-blooded murderers to petty thieves, should
hang
➢The list of “nonclergyable” offenses would grow in the centuries that followed
➢Dividing murder into degrees expanded the idea that not all felons - in this case, not all
murderers - should be executed. In the new United States, degrees of murder were
created by legislatures, not judges
➢So under the statute, premeditated intent to kill murders and some felony murders were
capital offenses, just as they were under the old common law. And they still are. All other
murders (depraved heart and intent to cause serious bodily injury) were second-degree
murders, just as they were under the old law
■ Sometimes, they still are
➢The Model Penal Code doesn’t use the term “degrees,” but, since its publication in 1960,
state criminal codes have increasingly used the MPC’s scheme of dividing murder
according to mental attitude - purposely, knowingly, and extremely reklessly
➢Behind this quick adoption of the statutes was the first of numerous waves of opposition to
the death penalty throughout the U.S. history. Three results followed, results that
influenced the criminal law you’re studying in this book profoundly:
■ 1) The gradual peeling away of layers of criminal homicides that were thought not
to deserve the death penalty
■ 2) The emergence of more detailed grading schemes, placing various types of
criminal homicide along the spectrum of available criminal punishments
■ 3) The development of various justifications and excuses making certain homicides
noncriminal
➢First-Degree Murder
■ Almost all states that divide murder into degrees establish two kinds of first-degree
murder: 1) premeditated, deliberate intent to kill murders and 2) felony murders
■ First-degree murder is the only crime today in which the death penalty can be
imposed
■ To guide judges’ and juries’decisions whether to execute or sentence to life in
prison a person convicted of first-degree murder, the U.S. Supreme Court, in a
series of decisions since the 1970s, has completely revised the procedures for
imposing capital punishment.
■ The matter is highly complicated, and the Court’s cases haven’t always made it
clear just what’s required, but here’s a list of the main practices the Constitution
bans, requires, and allows:
● 1) Mandatory death sentences are banned. States can’t require the death
penalty in all first-degree murders
● 2) Unguided discretionary death penalty decisions are banned. Judges and
juries can’t impose the death penalty without a list of specific criteria for and
angainst the death penalty to guide their ceisions
● 3) Mitigating factors are required. States cannot limit the range of mitigating
factors that might favor life imprisonment instead of death
● 4) Additional aggravating factors are allowed. Juror and/or judges are
allowed to consider factors in favor of death not specifically included in
statutory lists of aggravating factors
■ Most states have adopted the MPC’s two recommended procedures- bifurcation
and the criteria for guiding the decision to impose the death sentence in capital
cases.
● We define “captal cases” as death penalty cases in death penalty states
and “mandatory life sentence without parole” cases in non-death penalty
states
■ The bifurcation procedure mandates that the death penalty decision be made in
two phases: a trial to determine guilt and a second separate proceeding, after a
finding of guilt, to consider the aggravating factors for, and mitigating factors
against, capital punishment
■ Juries, or judges where state law authorizes judges to decide, have to consider
aggravating and mitigating factors before making their decision. They can’t actually
impose the death penalty unless their find “one of the aggravated circumstances
and further find that there are no mitigating circumstances sufficiently substantial to
call for leniency”
■ The list of aggravating circumstances includes:
● 1) The murder was committed by a convict under sentence of imprisonment
● 2) The defendant was previously convicted of another murder or of a felony
involving the use or threat of violence to the person
● 3) At the time of the murder was committed, the defedant also committed
another murder
● 4) The defendant knowingly created a great risk of death to many persons
● 5) The murder was committed while the defendant was engaged or was an
accomplice in the commission, or an attempt to commit, or flight after
committing or attempting to commit, robbery, rape, or deviant sexual
intercourse by force or threat of force, arson, burglary, or kidnapping
● 6) The murder was commmitted for the purpose of avoiding or preventing a
lawful arrest or effecting an escape from lawful custody
● 7) The murder was committed for pecuniary gain
● 8) The murder was especially heinous, atrocious, or cruel, manifesting
exceptional depravity
■ The list of mitigating factors includes:
● 1) The defendant has no significant history of criminal activity
● 2) The murder was committed while the defendant was under the influence
of extreme mental or emotional disturbance
● 3) The victim was a participant in the defendant’s homicidal conduct or
consented to the homicidal act
● 4) The murder was committed under circumstances that the defendant
believed to provide a moral justification or extenuation for his conduct
● 5) The defendant was an accomplice in a murder committed by another
person and his partiipation in the homicidal act was relatively minor
● 6) The defendant acted under duress or under the domination of another
person
● 7) At the time of the murder, the capacity of the defendant to appreciate the
criminality [wrongfulness] of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect or
intoxication
● 8) The defendant was a young age at the time of the crime
■ First-degree murder mens rea
● “All murder which is perpetrated by…willful, deliberate, and premeditated
killin…is murder of the first degree”
● “Willful” means the intent to kill. “If an intention to kill exists, it is willfull,” a
judge instructed the jury in Pennsylvania murder trial just after the Civil War
◆The same isn’t true of “deliberate” and “premeditated.” They’re
frequently issues in the cases, and the courts define them different,
sometimes radically so
● Most courts say that “premeditated” and “deliberate” mean something more
than the intent to kill. In other words, they refine the mental attitude of the
MPC’s “purposely” and “knowingly” and the common law’s “specific intent”
● Some courts blur the line between intentional killings and the more refined
deliberate, premeditated intentional killings. The result is that there’s no
meaningful difference between first and second-degree murder
◆This is serious business, not just theoretically but practically, too,
because it could mean, literally, the difference between life and
death
● Blackstone (1769) called “willful, premeditated, deliberate killings” the
“grand criterion” for murder because they reflect “the dictate of a wicked,
depraved, and malignant heart”
● At one extreme are those that fit the definitions of the original “grand
criterion” -killings planned in advance and then committed in “cold blood”
● At the other extreme are courts that define “willful, premeditated, deliberate”
killing as the equivalent of the specific intent to kill
● There’s considerable criticism in court decisions and among commentators
that this equivalent of specific intent definition renders the different between
first - and second- degree murder meaningless. That’s serious because it
means there’s no real difference between capital murder that can lead to
execution in death penalty states or to life inprison without the chance of
parole in non-death penalty states
■ Proving “intent to kill”
● However the statutes define and judges interpret the intent to kill
requirement, how do prosecutors prove that the defendant acted with the
required intent?
● So prosecutors have to make their case by the circumstances.
● The deadly weapon doctrine is one of these circumstances. According to
the deadly weapon doctrine, “one who intentionally uses a deadly weapon
on another human being and thereby kills him presumably intends to kill
him”
◆The doctrine grew out of widely accepted proposition in both civil
and criminal cases that individuals are presumed to intend the
natural and probable consequences of their acts
● Be careful not to conclude that the presumption is mandatory. In fact, in
homicide, it’s more a permissible inference than a mandatory presumption
● In other words, the use of a deadly weapon that kills isn’t automatically
murder. The shooter still has a chance to convince a jury (or a judge in a
trial without a jury) that although she shot intentionally she didn’t intend to
kill, as where she intended to scare or inflict a minor wound
● Not everyone agreed that premeditated, deliberate killings - even if they’re
truly planned and committed in cold blood - are the worst kind of murders
■ First-degree murder actus reus
● First-degree murder actus reus can be critical when it comes to deciding
whether to sentence a person convicted of first-degree murder to death, to
prison for life without parole in states without the death penalty, or to a
lesser penalty
◆Killing by menas of “heinous, atrocious, or cruel” acts, meaning
especially brutal murders or torture murders intended to cause
lingering death, appears on the list of aggravating factors that
qualifies a murderer for the death penalty
➢Second-Degree Murder
■ The reason for creating first and second-degree murders, beginning with
Pennsylvania in 1794, was to separate murders that deserved the death penalty
from those that didn’t
● The goal was to limit capital punishment without eliminating it
■ Second-degree murders included intentional murders that weren’t premeditated or
deliberate. But not all second-degree murders required intentional killing. These
are “implied malice” murders, created by the common law judges, which still exist
in common law states and by statute today
● They include felony murders, intent to inflict serious bodily injury murders,
and depraved heart murders
■ Sometimes second-degree murder is treated as a default murder category,
meaning it includes all murders that aren’t first-degree murders
■ Intent to inflict serious bodily injury murders, are often called depraved heart
murders and terated as a subset of second-degree murders
■ Depraved Heart Murder
● Depraved heart murders are unintentional but extremely reckless murders.
Recall that the reckless mental attitude consists of consciously creating a
substantial risk of criminal harm, in this case death
● Reckless manslaughter is killing very recklessly, and reckless murder
(depraved heart murder) is killing very, very, very recklessly
■ Felony Murder
● According to the felony murder rule derives, unintentional deaths that occur
during the commission of another felony are murders
● A felon is held strictly liable for all killings committed by him or his
accomplices in the course of the felony. As long as the homicide is the
direct causal result of the robbery, the felony-murder rule applies whether or
not the death was a natural or probable consequence of the robbery
● In the sweeping rule, all the prosecution has to do is prove two elements: 1)
the commission of the predicate or underlying felony 2) a death during the
commission of the felony
◆Criminal law teachers, scholars, lawyers, and courts have scraped -
but hotly criticized - the sweeping rule known as the default felony
murder rule
● In the United States, less strict felony murder statutes were common during
the nineteenth century. In the “great bulk” of state statutes, and the “great
bulk” of court cases, “felony murder liability was predicated on the
dangerous felonies of robbery, burglary, rape, arson, or murder.”
● The law varies widely, due mainly to efforts to limit the rule in one of the
following ways:
◆1) Limit the crimes the rule applies to
◆2) Strict interpretation of the cause of death
◆3) Limit on the time period that commission of the predicate crime
includes
◆4) Underlying crime has to be independent of the death
● Many states limit the rule of felonies committed, or attempted, that are
inherently dangerous to human life. Others limit the rules to a short list of
the common law felonies, including rape, sodomy, robbery, burglary, arson,
mayhem, and lerceny. Still others include only felonies malum in se
● Statutes take two approaches to the “inherently dangerous to human life”
limit. Under one approach, followed by a minority of the states, the question
is whether the facts and circumstances of the particular case create a
foreseeable danger to human life
● The other approach limits the rule to inherently dangerous predicate crimes.
Under this approach the elements of the crime in the abstract determine
whether the rule applies
● How do we justify substitutting the mens rea of lesser offenses for the mens
rea of murder? The lesser offense accompanying the felony has its own
punishment. How does that lesser offense add to the “criminality of the
killing (as by making an otherwise noncriminal [accidental] killing criminal),
or to the grade of the criminal killing
◆Three reasons say supporters of the felony murder rule:
➢1) It encourages felons to “exercise maximum care dring
felonies
➢2) It “prompts potential felons to refrain from committing
felonies in the first place.”
➢3) “It warns prospective felons that they will not be able to
hide behind false claims of accident or mere negligence.”
● The number of killings during felonies is “relatively low.” Adding a “small
risk” of punishment for these few killings is “probably not a major influence
on” these would-be killers’ behavior. And a “good number” of those whom
the rule somehow affects “probably” wouldn’t have killed anyway
● When the felony-murder rule convert an accidental death into first-degree
murder, then punishmnet is rendered disporoportionate to the wrong for
which the offender is personally responsible. The principle that the
wrongdoer must run the risk explicitly obscures the question of actual
responsibility for the harmful result
● The attacks on the justice of the rule and the lack of empirical research
demonstrating that the rule deters dangerous felons and reduces the
number of deaths during the commission of felonies probably whyfour
states -Ohio, Hawaii, Michigan, and Kentucky - have abolished felony
murder - and why most others have restriced felony murder to deaths that
were forseeable during the commission of the underlying felony
■ Corporation Murder
● Can corporation commit murder? Yes, according to a few prosecutors
who’ve prosecuted corporations for murder
● Most State criminal codes apply to corporate criminal homicide in the same
way they apply to other crimes committed for the corporation’s benefit.
Specifically, both corporations and high corporate officers acting within the
scope of their authority and for the benefit ofa corporation can commit
murder. In practice, however, prosecutors rarely charge corporation or their
officers with criminal homicide, and convictions rarely follow
● The relucatance to prosecute corporations for murder, or for any homicide
requiring the intent to kill or inflict serious bodily injury, is due largely to the
hesitation to view corporation as persons
◆Prosecutors and courts have drawn the line at involuntary
manslaughter, a crime whose mens rea is negligence and
occasionally recklessness
● As for corporate executives, the reluctance to prosecute stems from
vicarious liability and the question it raises about culpability. It has been
difficult to attribute deaths linked with corporate benefit to corporate officers
who were in charge generally but didn’t order or authorize a killing, didn’t
know about it, or even didn’t want it to happen
● Of course, you can’t send a corporation to jail, but you can punish its
officers as representatives of the corporation. Don’t confuse this with
punishing corporate officers for official behavior. Here, they go to jail for
their individual criminal conduct - and for the corporations
❖Manslaughter
➢Manslaughter, like murder, is an ancient common law crime created by judged, not by
legislators. Manslaughter was originally one crime. Later, it became two crimes - voluntary
manslaughter (intentional killing) and involuntary manslaughter (unintentional killing).
Eventually, involuntary manslaughter developed, and is still developing, into various and
often inconsistent and confusing types
➢According to eighteenth-century commentator Blackstone (1769):
■ Manslaughter is..the unlawful killing of another which may be either voluntarily
upon a sudden heat, or involuntary…where one had no intent to do another any
personal mischief
➢Blackstone’s definition is more than three centuries old, but it goes straight to mens rea -
the heart of manslaughter, as it is in most murder classifications
➢Voluntary manslaughter is about letting your anger get the best of you in the worst
possible way - killing another person. The law of voluntary manslaughter (as in all criminal
homicides) requires proof of the actus reus, mens rea, causation, and death. One
additional element has to be proved: the circumstance element of adequate provocation
➢Elements of voluntary manslaughter
■ Actus Reus (Voluntary Act) - Voluntary act of killing another person + Mens rea
(General Intent) - 1. Intent to kill or 2. Intent to inflict serious bodily harm +
Circumstance - 1. Killing in sudden heat of passion and 2. Adequate provocation or
3. Honest (but not reasonable) belief that the killing was in self-defense = Criminal
Harm
➢Criminal law aims to bridle passions and build self-control, but it also recognizes the frailty
of human nature. The law of voluntary manslaughter takes into account both the
seriousness of this felony and the reality of human frailty. So although a sudden intentional
killing in anger is a very serious felony, it’s not the most serious; thats reserved for murder
➢Adequate provocation
■ Voluntary manslaughter has one element not present in murder, and one we
haven’t discussed, namely, the circumstace element of adequate provocation. In
voluntary manslaughter, adequate provocation is the trigger that sets off the
sudden killing of another person
■ The law requires adequate provocation. Adequate provocation has three elements:
● 1) It has to be a provocation that the law recognizes
● 2) The defendant himself has to be provoked (subjective provocation)
● 3) The provocation has to be one that would provoke a reasonable person
under the circumstances in this case (objective provocation)
■ The thinking is that reasonable persons, however great the provocation, would
never kill someone except in self-defense. That’s why voluntary manslaughter isn’t
justifiable homicide; it’s only a lesser version of intentional murder
■ Who is this “reasonable person” whose provocation we’re supposed to compare
the defendant's to? ”Reasonable” sounds odd here. Throughout the law,
reasonable person refers to “the public embodiment of rational behavior”
■ It’s “more accurate…to describe…the [reasonable person]...as an ‘ordinary’
person…who sometimes, unfortunately, acts out of uncontrolled emotion rather
than reason”
■ English and U.S. courts have described the reasonable person variously, in
phrases like a person of “average disposition, i.e. not explicitly belligerent; sober at
the time of provocation; and of normal mental capacity”
➢Sudden Heat of Passion with no “Cooling-off Period
■ Voluntary manslaughter requires killing in the “sudden heat of passion with no
“cooling-off” period
■ Whether the actual time between the provocation and the killing - seconds, hours,
or even days - qualifies as the “sudden heat of passion” depends upon the facts of
the individual case. Courts apply an objective test of cooling-off time; namely,
would a reasonable person under the same circumstances have had time to cool
off? If defendants have a reasonable time for their murderous rages to subside, the
law views their killings as murders even if they take place immediately following the
provocations
■ To prove voluntary manslaughter, the prosecution has to prove that the provocation
caused the passion and the killing
■ Provocation by words
● It’s often said that words are never adequate provocation. That was true
when the “words can never provoke” rule was created in the days of the
common law. It’s still the rule in most states but not everywhere
● Some courts have adopted a more flexible approach that “words can
sometimes amount to adequate provocation. California and Pennsylvania
courts have adopted the “last-straw rule” (also called the “long smoldering”
or “slow burn” rule) of adequate provocation. It’s defined as “a smoldering
resentment or pent-up rage resulting from earlier insults of humiliating
events culminating in a triggering event that, by itself, might be insufficient
to provoke the deadly act”
■ Probably the most significant development is the adoption by several states of the
Model Penal Code (MPC) extreme mental or emotional disturbance manslaughter
provision:
● Criminal homicide constitutes manslaughter when:
◆a) it is committed recklessly; or
◆b) a homicide which would otherwise be murder is committed under
the influence of extreme mental or emotional disturbance for which
there is reasonable explanation or excuse. The reasonableness of
such explanation or excuse shall be determined from the viewpoint
of the person in the actor’s situation under the circumstances as he
believes them to be
■ Provocation by intimated
● According to the common law paramour rule, a husband who catches his
wife in the act of adultery has adequate provocation to kill
● Many cases have held that it’s voluntary manslaughter for a spouse to kill
the adulterous spouse, the paramour, or both, if the killing took place in the
first heat of passion following the sight of the adultery
■ Provocation by nonviolent homosexual advance (NHA)
● Most men and women - gay and staright - would justifiably get angry if
someone touched their genitals without their consent
● Professor Dressler offers the following general statements about NHA
cases:
◆1) Indication in response to a violation of one’s sexual privaxcy or
autonomy is justifiable
◆2) Anger, one possible manifestation of such indignation, is
justifiable or excusable
◆3) Any resulting killing is wholly unjustifiable. (So self-defense
doesn’t apply - you can’t kill in response to an unwanted, nonviolent
sexual advance
◆4) But, if the invasion of privacy is significant, ordinary, fallible
human beings might become so upset that their out-of-control
reaction deserves mitigated punishment
● In other words, “there’s a partial excuse in any sexual-advance cases.” And
this “partial excuse” for the “impassioned killing” spawned by an unwanted
sexual advance might reduce the killing from murder to manslaughter
● The “gay panic” claim is based on “the theory that a person with latent
homosexual tendencies will have an extreme and uncontrollably violent
reaction when confronted with a homosexual proposition
■ The emotion-act distinction
● Proponents of the emotion-act distinction make the sensible claim that we
should separate the reasonableness of lethal action from the emotions that
led to the killing
● There’s a “big difference between reasonable emotions (fear, anger,
outrage) and reasonable action. Even if a particular emotion is reasonable
under the circumstances, this does not mean that acting on that emotion by
using deadly force is also reasonable”
● Professor Lee examined model jury instructions to determine whether
states required act reasonableness, meaning “a finding that a reasonable
person in the defendant’s shoes would have responded as violently as the
defendant did”
● Most states adopt an emotional reasonableness approach, meaning a
finding that “the defendant’s emotional outrage or passion was reasonable.”
A few states require both act and emotional reasonableness
➢The central elements in involuntary manslaughter are its actus reus (killing by a voluntary
act or omission) and its mens rea (an unintentional killing)
■ As in all crimes of criminal conduct causing criminal harm, involuntary
manslaughter also includes the elements of causation and resulting harm
■ All states have punished involuntary manslaughter from their earliest days, but they
didn’t define it, and if they did, they did so vaguely
■ Most comprehensive modern criminal codes have adopted at least some of the
Model Penal Code (MPC) homicide sections
■ Most state codes have not adopted the MPC general criminal reckless and
negligence provisions. Instead, they’ve created criminal liability for deaths caused
by variety of circumstances
➢Criminal negligence manslaughter
■ Involuntary manslaughter goes by the name of criminal negligence manslaughter in
some statutes and cases. In practice, criminal negligence manslaughter consists of
two elements:
● 1) Actus reus. The defendant’s acts create a high (substantial and
unjustifiable) risk of death or serious bodily injury
● 2) Mens rea. The defendant is aware that the risk of death or serious bodily
injury is high but commits the acts anyway
■ Recall that when you’re acting recklessly, you know you’re creating a high risk of
harm; when you're acting negligently, you should, but don’t, know you're creating
the high risk
■ Criminal negligence probably means criminal recklessness in involuntary
manslaughter cases
■ Elements of involuntary manslaughter
● Actus Reus (Voluntary Act) - voluntary act of killing another person + Mens
Rea (General Intent) - 1. Extremely recklessly or 2. Extremely negligently +
Circumstance - conscious creation of substantial and unjustifiable risk of
death or serious bodily injury or 2. Unconscious creation of substantial and
unjustifiable risk of death or serious bodily injury or 3. Death occurs during
the commission of a qualifying unlawful act = Criminal Harm
➢Unlawful act manslaughter
■ In today’s statutes and court opinions, they're called unlawful act manslaughter or
misdemeanor manslaughter
■ Some time after the judges created the offense of manslaughter, unlawful act
manslaughter became a form of involuntary manslaughter. Statutes have restricted
unlawful act manslaughter because the penalty is considered too harsh
■ In fact, there’s a trend to abolish unlawful act manslaughter, leaving criminal
negligence manslaughter as the only kind of involuntary manslaughter
■ Unlawful acts taken literally could include everything, including felonies,
misdemeanors, and even traffic violations, city ordinances, administrative crimes,
and even noncriminal wrongs, such as civil trespass and other torts.
Misdemeanors are certainly included among these possibly unlawful acts; that’s
why the unlawful act manslaughter is often called “misdemeanor manslaughter”
■ There’s a trend toward abolishing unlawful act manslaughter; about half of the
states have already done so
■ Most states limit the underlying offense to mala in se offenses (Recall that mala in
se offense are inherently evil)
■ To count as a malum prohibitum crime, death has to be a foreseeable
consequences of the unlawful act
❖Doctor-Assisted Suicide
➢The subject of helping others die has confronted societies throughout history with “the
troubling dilemma of definition the meaning of death and the value of life” In our time, we
call helping other die (assisted suicide) euthanasia
➢Euthanasia exists in several forms. It can be passive (failing to take any extraordinary
measures to keep someone alive) or active (deliberate acts to cause death). It can be
voluntary, whereby a dying person can make a rational request and be examined to
guarantee the validity of the request, or involuntary. Involuntary euthanasia can be
beneficient (a family and court decisionwith good intentions) or malevolent (purposeful
disregard of legal process or by co-opting the legal process)
➢Arguments against Doctor-Assisted Suicide
■ The intrinsically immoral and wrong argument stems from the Judeo- Christian
heritage asserting the immortality or beginning about “premature” death
■ According to the “slippery slope” argument, honest mistakes and malevolent
motives can happen, and we can’t control them. The potential for wrong diagnoses
and the threat of nonmercy killings are too great to justify any exceptions to a total
ban on doctor-assisted suicides. In addition, society’s interest, not just the
individual’s, are at stake
● Supporters say that the argument for doctor-assisted suicide isn’t so much
an argument for euthansia. It's an argument against “insufferable and
unending pain; in a word, it’s about compassion.” But they don’t stop with
compassion. They maintain that there’s a constitutional right to assisted
suicide. According to proponents of the right to doctor-assisted sucide, the
“right” is closely linked to the principle of personal autonomy embodies in
the Court-created and controversial right to privacy
● Restig the right to asssisted suicide on the shaky controversial right to
privacy has led to proponents to look elsewhere and rely on a presumption
of bodily integrity
● A state can’t exercise power over individual members of society except to
prevent harm to others
● Others have argued that the “liberty interest” guaranteed in the due process
clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution
includes the right to die and to seek assistance in exercising the right
➢To justify doctor-assisted suicide runs up against the subject of this chapter - criminal
homicide. The law of criminal homicide makes it difficult to distinguish doctor-assisted
suicide from first-degree murder. Proponents argue that murder is condemned because it
both violates a person’s interest in continuing to live and is a destruvtifve force in society.
Neither of these is present in doctor-assisted suicide
➢It should be clear that the positions on doctor-assisted suicide are irreconciable because
they reflect opposin strongly held beliefs about the meaning of life
➢The public, like the criminal law, is divided on the question of doctor-assisted suicide
❖Key Cases
➢State v. Snowden (Idaho 1957)
➢Duest v. State (Fla. 1985)
➢People v. Thomas (Mich. App. 1978)
➢People v. O’Neill (Ill. App. 1990)
➢Commonwealth v. Schnopps (Mass. 1983)
➢Commonwealth v. Carr (Penn. Supp. 1990)
➢State v. Mays (Ohio App. 2000)
