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Criminal Law
Rules of Law, Definitions, Elements and Cases

Additional Law Flashcards




Actus Reus
An act, For Example, an "actus reus" is a "wrongful deed" (such as killing a person) which, if done with mens rea, a "guilty mind" (such as "malice aforethougth"), is a crime (such as first degree murder).
An "admission" is a voluntary statement that a fact or state of events is true.
Adversary System

The system of law in the U.S. The judge acts as the decision maker between opposite sides (between two individuals, between the state and an individual, etc.) rather than acting as the person who also makes the state's case or independently seeks out evidence.

Affirmative Defense
A defense that is more than a simple denial of the charges.  It raises a new matter that may result in a acquittal or reduction of liability.  It is a defense that must be affirmatively raised, often prior to trial or it is lost.
Aggravating Circumstances
Actions or occurrences that increase the seriousness of a crime, but are not part of the legal definition of that crime.
"Elsewhere"; the claim that at the time a crime was committed a person was somewhere else.
Appellate Court
A higer court that can hear appeals from a lower court.
The hearing at wich a defendant is brought before a judge to hear the charges and to enter a plea (guilty or not guilty, etc.)
The official taking of a person to answer criminal charges.  This involves at least temporarily depriving the person of liberty and may involve the use of force.  An arrest is usually made by a police officer with a warrant or for a crime committed in the officer's presence.
The malicious and unlawful burning of a building,
An intentional threat, show of force, or movement that could reasonably make a person feel in danger of physical attack or harmful physical contact.  It can be a crime or tort.
An effort to commit a crime that goes beyond preparation and that proceeds far enough to make the person who did it guilty of an "an attempt crime." For example, if a person fires a shot at another in a failed effort at murder, the person is guilty of attempted murder.
The money or propety given as security for a defendant's appearence in court.  The money, often in the form of a bail bond, may be lost if the defendant released does not appear in court.
Battered Woman Syndrome
Continuing abuse of a woman by a spouse or lover, and the resulting physical or psychological harm.


An intentional, unconsented to , physical contact by one person (or object controlled by that person) with another person.  It can be a crime or a tort.
Beyond A Reasonable Doubt
The level of proof required to convict a person of a crime.  For a jury to be convinced "beyond a reasonable doubt," it must be fully satisfied that the person is guilty.  This is the highest level of proof required in any type of trial.
An act of the legislature by which one or more persons are declared guilty (usually of treason) without trial and sentencing the person to death and attainter, and their property confiscated.

This is now prohibit by the the U.S. Constitution.  The Constitution of the United States declares that no state shall pass any bill of attainder.

During the revolutionary war bills of attainder and ex post facto acts of confiscation were passed to a wide extent. The evils resulting from them, in times of more cool reflection, were discovered to have far outweighed any imagined good.

 A detailed formal, written statement of charges or claims by a plaintiff or the prosecutor (given upon the defendant's formal request to the court for more detailed information about the cause of action, or of the defendants's set-off.

In all actions in which the plaintiff declares generally, without specifying his cause of action, a judge upon application will order him to give the defendant a bill of the particulars, and in the meantime stay proceedings. And when the defendant gives notice or pleads a set-off, he will be required to give a bill of the particulars of his set-off, on failure of which he will be precluded from giving any evidence in support of it at the trial. The object in both cases is to prevent surprise and procure a fair trial. The bill of particulars is an account of the items of the demand and states in what manner they arose. 


The first ten amendments to the U.S. Constitution that deal with matters such as freedom of speech, religion, due process, etc. They were included in the constitution as part of deal made so that the libertarian elements of the founding fathers, lead by Jefferson and others, would vote for ratification of the constitution.

English Law. A statute passed in the reign of William and Mary, so called, because it declared the true rights of British subjects. W.&M. stat.2, c.2.


Bribery is the offer or acceptance of anything of value in exchange for influence on a government/public official or employee. Bribes can take the form of gifts or payments of money in exchange for favorable treatment, such as awards of government contracts. In most situations, both the person offering the bribe and the person accepting can be charged with bribery.


Burglary is typically defined as the unlawful entry into almost any structure (not just a home or business) with the intent to commit any crime inside (not just theft/larceny). No physical breaking and entering is required; the offender may simply trespass through an open door. Unlike robbery, which involves use of force or fear to obtain another person's property, there is usually no victim present during a burglary.

For example, Dan enters Victor's boathouse through an open window, intending to steal Victor's boat. Finding the boat is gone, Dan returns home. Though he took nothing, Dan has committed burglary.

Common Law
The legal system that originated in England and is composed of caselaw and statutes that grow and change, influenced by everchanging custom and tradition.

An agreement that affects or creates legal relationships between two or more persons.


A contract must contain

1.  Promise

2.  Consideration

Person legally capable of making binding agreement

4.  A reasonable certainty about the meaning of the terms.


A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. One person may be charged with and convicted of both conspiracy and the underlying crime based on the same circumstances.

For example, Andy, Dan, and Alice plan a bank robbery. They 1) visit the bank first to assess security, 2) pool their money and buy a gun together, and 3) write a demand letter. All three can be charged with conspiracy to commit robbery, regardless of whether the robbery itself is actually attempted or completed.


Constructive Intent

Inferred, Implied, or Presumed from the circumstances.
Disorderly Conduct

Almost every state has a disorderly conduct law that makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of obnoxious or unruly conduct may fit the definition of disorderly conduct, as such statutes are often used as "catch-all" crimes. Police may use a disorderly conduct charge to keep the peace when a person is behaving in a disruptive manner, but presents no serious public danger.

Due Process Clause
The due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that no person be deprived of life, liberty, or property without having notice and a real chance to present his or her side in a legal dispute
Elements of Larceny

1.  The taking and carrying away

2.  Personal Property

3.  Of another

4.  With an intent to steal

Embezzlement is defined in most states as theft/larceny of assets (money or property) by a person in a position of trust or responsibility over those assets. Embezzlement typically occurs in the employment and corporate settings. For example, while working as a bank manager, Dan alters customer deposit receipts and account information, then siphons bank money into his own pocket.

Most states define extortion as the gaining of property or money by almost any kind of force, or threat of 1) violence, 2) property damage, 3) harm to reputation, or 4) unfavorable government action. While usually viewed as a form of theft/larceny, extortion differs from robbery in that the threat in question does not pose an imminent physical danger to the victim.

For example, Dan goes to Victor's place of business and demands monthly payment from Victor for the business's "protection" from vandalism and after-hours theft. Fearing that he or his business will suffer harm otherwise, Victor agrees to pay Dan.


The crime of forgery generally refers to the making of a fake document, the changing of an existing document, or the making of a signature without authorization. Documents that can be the object of forgery include contracts, identification cards, and legal certificates. Most states require that forgery be done with the intent to commit fraud or theft/larceny.

General Intent
The desire to act

Under federal and state law, kidnapping is commonly defined as the taking of a person from one place to another against his or her will, or the confining of a person to a controlled space. Some kidnapping laws require that the taking or confining be for an unlawful purpose, such as extortion or the facilitation of a crime. A parent without legal custody rights may be charged with kidnapping for taking his or her own child, in certain circumstances.

Manslaughter: Involuntary

Involuntary manslaughter usually refers to an unintentional killing that results from recklessness or criminal negligence, or from an unlawful act that is a misdemeanor or low-level felony (such as DUI). The usual distinction from voluntary manslaughter is that involuntary manslaughter (sometimes called "criminally negligent homicide") is a crime in which the victim's death is unintended.

For example, Dan comes home to find his wife in bed with Victor. Distraught, Dan heads to a local bar to drown his sorrows. After having five drinks, Dan jumps into his car and drives down the street at twice the posted speed limit, accidentally hitting and killing a pedestrian.

Manslaughter: Voluntary

Voluntary manslaughter is commonly defined as an intentional killing in which the offender had no prior intent to kill, such as a killing that occurs in the "heat of passion." The circumstances leading to the killing must be the kind that would cause a reasonable person to become emotionally or mentally disturbed; otherwise, the killing may be charged as a first-degree or second-degree murder.

For example, Dan comes home to find his wife in bed with Victor. In the heat of the moment, Dan picks up a golf club from next to the bed and strikes Victor in the head, killing him instantly.

Mens Res
A state of mind which produces a crime
Model Penal Code Recognizes Four States of Mind

1.  Purposely, A defendant must have a desire to cause the result, Refer to Specific Intent.

2.  Knowingly, A defendant must be aware of the nature of the act and be practically certain that his or her conduct will cause a particular result.

3.  Recklessness, A defendant acts recklessly when her or she consciously disregards a substantial and unjustifiable risk that the result will occur.

4.  Negligence

Murder: First Degree

In most states, first-degree murder is defined as an unlawful killing that is both willful and premeditated, meaning that it was committed after planning or "lying in wait" for the victim.

For example, Dan comes home to find his wife in bed with Victor. Three days later, Dan waits behind a tree near Victor's front door. When Victor comes out of the house, Dan shoots and kills him.

Most states also adhere to a legal concept known as the "felony murder rule," under which a person commits first-degree murder if any death (even an accidental one) results from the commission of certain violent felonies -- usually arson, burglary, kidnapping, rape, and robbery.

For example, Dan and Connie rob Victor's liquor store, but as they are fleeing, Victor shoots and kills Dan. Under the felony murder rule, Connie can be charged with first-degree murder for Dan's death.

Murder: Second degree

Second-degree murder is ordinarily defined as 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion" or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first-degree murder and voluntary manslaughter.

For example, Dan comes home to find his wife in bed with Victor. At a stoplight the next day, Dan sees Victor riding in the passenger seat of a nearby car. Dan pulls out a gun and fires three shots into the car, missing Victor but killing the driver of the car.


Perjury statutes in many states make it a crime to knowingly lie after taking an oath to tell the truth, such as when testifying in court or communicating through certain legal documents. The falsehood must usually be material to the matter at issue, though perjury can also be committed by simply signing a document with the knowledge that it contains false assertions.

For example, while completing a sworn affidavit during child support proceedings in family court, Dan purposefully understates his monthly income by $2000, signs the document, and files it with the judge's clerk.

Prior decision of the same court or a higer court, which a judge must follow in deciding a subsequent case presenting similar facts and the same legal problem, even though different parties are involved and many years have elapsed

Prostitution laws make it a crime in most states to offer, agree to, or engage in a sexual act for compensation. Depending upon applicable state law, the stages of a typical prostitution "transaction" can involve charges against the provider of services (for "prostitution"), the customer paying for the services (for "solicitation of prostitution"), and any middleman (for "pandering" or "pimping").


Federal and state racketeering, profiteering, and RICO (Racketeer-Influenced and Corrupt Organization) laws make it illegal for criminal organizations to profit from any legitimate business operations. Many of these laws allow for the confiscation and seizure of the criminal organization's legitimate enterprise assets, and are typically used against known "organized crime" groups. The goal is to cripple the operation financially, and cut off sources of cash that support ongoing criminal activity.


The crime of rape (or "first-degree sexual assault" in some states) generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol. Rape can occur when the offender and victim have a pre-existing relationship (sometimes called "date rape"), or even when the offender is the victim's spouse.

Under a variation known as "statutory rape," some states make it unlawful for an adult to engage in sexual intercourse with a person who has not reached the age of consent (usually 18 years of age).

Indifference to consequences, Indifference to the safety and rights of others.  Recklessness implies conduct amounting to more that ordinary negligence.
A rule that is put out by a local government or an administrative agency to regulate conduct.

Many states define robbery as theft/larceny of property or money through the offender's use of physical force or fear against a victim. Where a deadly weapon such as a gun is used or the victim suffers injury, the robbery may be charged as "armed" or "aggravated." Unlike burglary, the crime of robbery almost always requires the presence of a victim who suffers actual injury, or is threatened with harm.

For example, Dan approaches Victor from behind, demanding Victor's wallet while pressing a hard object into his back. Fearing that Dan has a gun, Victor gives up his wallet. If Dan did use a gun, or if Victor suffered an injury, the charge would likely be elevated to "armed" or "aggravated" robbery.

Rule of Law Specific Intent
Specific Intent must show that the defendant possessed knowledge of a particular fact or illegality
Knowingly; with guilty knowledge
Sexual Assault

Specific laws vary by state, but sexual assault generally refers to any crime in which the offender subjects the victim to sexual touching that is unwanted and offensive. These crimes can range from sexual groping or assault/battery, to attempted rape.

Specific Intent
An intent to commit the exact crime charged, not merely a general intent to commit some crime or merely a generally guilty mind.
Stare Decisis
The doctrine that judicial decisions stand as precedents for cases arising in the future.
Tax Evasion

Tax evasion/fraud laws make it a federal or state crime to purposefully avoid the payment of federal, state, or local taxes, whether those taxes are a personal obligation or that of a business entity. A tax evasion/fraud conviction can result in penalties such as fines, incarceration, and asset forfeiture.


Theft/larceny is typically defined as the taking of almost anything of value without the consent of the owner, with the intent to permanently deprive him or her of the value of the property taken. Most states recognize degrees of theft, such as "grand" or "petty," which usually relate to the value of the property taken.

For example, Dan goes to Victor's music store, puts two CDs in his pocket, and walks out the door. Dan can be charged with theft/larceny. Had Dan stolen Victor's car from the parking lot, Dan would likely be charged with grand theft/larceny.

Burden of Going Forward (Production)
The requirement that one side in a lawsuit produce evidence on a particular issue or risk losing on that issue.

Lat. 'To be informed of.' Refers to the order a court issues so that it can review the decision and proceedings in a lower court and determine whether there were any irregularities. When such an order is made it is said that the court has granted certiorari. Also called 'Cert.'

An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal. Certiorari is the general method most cases make their way to be heard by the U.S. Supreme Court since it has specific jurisdiction over a very limited range of disputes.

To be certified of; to be informed of. This is the name of a writ issued from a superior court directed to one of inferior jurisdiction, commanding the latter to certify and return to the former the record in the particular case. A certiorari differs from a writ of error. There is a distinction also between a habeus corpus and a certiorari. The certiorari removes the cause; habeus corpus only supersedes the proceedings below.

By the common law a supreme court has power to review the proceedings of all inferior tribunals and to pass upon their jurisdiction and decisions on questions of law. But in general the determination of such inferior courts on questions of fact are conclusive and cannot be reversed on certiorari unless some statute confers the power on such supreme court. When any error has occurred in the proceedings of the court below different from the course of the common law, in any stage of the cause, either civil or criminal cases, the writ of certiorari is the only remedy to correct such error, unless some other statutory remedy has been given. A certiorari, for example, is the correct process to remove the proceedings of a court of sessions or of county commissioners in laying out highways.

Sometimes the writ of certiorari is used as auxiliary process in order to obtain a full return to some other process. When, for example, the record of an inferior court is brought before a superior court by appeal, writ of error, or other lawful mode, and there is a manifest defect, or a suggestion of diminution, a certiorari is awarded requiring a perfect transcript and all papers.


Ask that a potential juror be rejected if it is revealed that for some reason he or she is unable or unwilling to set aside preconceptions and pay attention only to the evidence.



That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was latter adopted in the U.S. that is based on precedent instead of statutory laws.

Traditional law of an area or region; also known as case law. The law created by judges when deciding individual disputes or cases. The body of law which includes both the unwritten law of England and the statutes passed before the settlement of the United States.

In Old England there were two types of Courts - law and equity. In the law court the Judge applied statutes. As time went on situations that were not covered by statutes were uncovered and Judges 'created' law, usually in equity. This is 'common law.'

The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states and thus state courts are the primary source of common law. Thus, 'common law' is used to fill in gaps. Common law changes over time, and at this time, each state has its own common law on many topics. The area of federal common law is primarily limited to federal issues that have not been addressed by a statute.

Even if federal common law otherwise would operate, it is displaced when Congress has decided the matter. See, e.g., Central Bank v. First Interstate Bank of Denver, N.A., 114 S.Ct. 1439, 1448 (1994) (holding that the conclusion that Congress did not intend to impose aiding and abetting liability under section 10(b) of the Securities and Exchange Act 'resolve[d] the case' notwithstanding the acknowledged power of the federal courts, with respect to the section 10(b) actions, to fashion federal common law that 'attempt[s] to infer `how . . . Congress would have addressed the issue,'' (quoting Musick, Peeler & Garrett v. Employers Ins. of Wausau, 113 S.Ct. 2085, 2090 (1993).



Amount of money adequate to compensate for any actual damages caused by the party against whom they awarded. Also awarded for things that are harder to measure, such as pain and suffering. (As opposed to punitive damages.)

Patent. Amount of money adequate to compensate for any infringement, but in no event less than the amount of money the plaintiff would have received if the defendant had been paying the plaintiff a reasonable royalty for using the patent during the period of infringement. The law does not permit the award of a greater sum than the monetary loss the plaintiff suffered as a result of the defendant's infringement. 35 U.S.C.


In a civil action, the document that initiates a lawsuit. The complaint outlines the alleged facts of the case and the basis for which a legal remedy is sought. In a criminal action, a complaint is the preliminary charge filed by the complaining party, usually with the police or a court.

The complaint is the first court paper filed in a lawsuit. It briefly states the plaintiff's view of the crux of the legal dispute and asks the court to resolve the dispute. In some types of cases and in certain states, a complaint is called a petition or a libel.

Items that typically appear in a complaint include:

Caption. The caption is the heading which appears on all court papers. The caption contains the names of the parties to the lawsuit (for example, Susan Roe, Plaintiff, v. Robert Roe, Defendant), the name of the court (for example, District Court for the Eastern District of Pennsylvania), the case number which has been assigned by the court clerk, and the title of the court paper (for example, Complaint for Annulment).

Allegations. An allegation is a statement made in court papers that sets forth a party's belief as to what the facts are in a given case. Referring to statements made in court papers as allegations serves as a reminder that they may or may not be true. Thus, when a party has alleged something, she has made charges which remain to be proven.

Prayer. The prayer is the part of a complaint which requests the court to grant some specific judicial relief (for example, a divorce, possession of the family home, child support or custody).

The allegation made to a proper officer that some person, whether known or unknown, has been guilty of a designated offence, with an offer to prove the fact and a request that the offender may be punished.

To have a legal effect the complaint must be supported by such evidence as shows that an offence has been committed, and renders it certain or probable that it was committed by the person named or described in the complaint.


- A power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes according to law and to carry his sentence into execution. The tract of land or district within which a judge or magistrate has jurisdiction, is called his territory and his power in relation to his territory is called his territorial jurisdiction.

Every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null. An inferior court has no jurisdiction beyond what is expressly delegated.

Jurisdiction is original when it is conferred on the court in the first instance, called original jurisdiction; or it is appellate, which is when an appeal is given from the judgment of another court. Jurisdiction is also civil where the subject-matter to be tried is not of a criminal nature; or criminal where the court is to punish crimes. Some courts and magistrates have both civil and criminal jurisdiction.

Jurisdiction is also concurrent, exclusive or assistant. Concurrent jurisdiction is that which may be entertained by several courts. It is a rule that in cases of concurrent jurisdictions, that which is first seized of the case shall try it to the exclusion of the other. Exclusive jurisdiction is that which has alone the power to try or determine the Suit, action or matter in dispute. assistant jurisdiction is that which is afforded by a court of chancery, in aid of a court of law; as for example, by a bill of discovery, by the examination of witnesses de bene esse or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses and the like.

It is the law which gives jurisdiction; the consent of, parties, cannot, therefore, confer it, in a matter which the law excludes. But where the court has jurisdiction of the matter and the defendant has some privilege which exempts him from the jurisdiction, he may wave the privilege.

Courts of inferior jurisdiction must act within their jurisdiction and so it must appear upon the record. But the legislature may, by a general or special law, provide otherwise.

When a court has the authority to decide a case, it is said to have jurisdiction over it. In all states, certain types of courts (often called, depending on the state, superior, circuit, county, district or family courts) are given specific and exclusive jurisdiction to handle family law cases. A family law court cannot, however, hear bankruptcies or criminal cases.

A geographic or subject area over which a court has authority. A magistrate court has jurisdiction over a town or city while the United States Supreme Court has jurisdiction over the entire country; A court's authority to rule on the questions of law at issue in a dispute, typically determined by geographic location and/or type of case.

ADMIRALTY JURISDICTION exists if the event giving rise to a dispute occurs on navigable waters and has a sufficient relationship to traditional maritime activities. See Whitcombe v. Stevedoring Servs..., 2 F.3d 312, 14 n.2 (9th Cir.'93).

ANCILLARY JURISDICTION - The exercise of jurisdiction over the pendent and ancillary actions had to establish a constitutionally required minimal nexus to the principal action and find explicit authorization in a jurisdiction-conferring statute. See Finley v. United States, 490 U.S. 545 (1989) (determining whether ancillary jurisdiction existed by analyzing the constitutional minimum for jurisdiction and the jurisdictional statute at issue, 28 U.S.C. S 1346(b)).

DIVERSITY JURISDICTION - if the amount in controversy exceeded $50,000 and plaintiff and defendants have diverse citizenships. See 28 U.S.C. S 1332.

The federal courts may exercise supplemental jurisdiction over claim because it arises out of the same nucleus of operative fact.

The exercise of jurisdiction over the pendent and ancillary actions had to establish a constitutionally required minimal nexus to the principal action and find explicit authorization in a jurisdiction-conferring statute. See Finley v. U.S., 490 U.S. 545 ('89) (determining whether ancillary jurisdiction existed by analyzing the constitutional minimum for jurisdiction and the jurisdictional statute at issue, 28 U.S.C. S 1346(b), but not the procedure for impleader, Rule 14(a)).

The limited nature of federal courts' jurisdiction 'means that the efficiency and convenience of a consolidated action will sometimes have to be forgone in favor of separate actions in state and federal courts.' Finley, Id. at 555.

Generally, parties cannot through consent confer jurisdiction upon the federal courts. See Commodity Futures Trading Comm. v. Schor, 106 S.Ct. 3245 ('86).


California's long-arm statute, Cal. Civ. Proc. Code S 410.10. See Metropolitan Life Ins. Co. v. Neaves, 912 F.2d 1062, 65 (9th Cir.'90). Section 410.10 provides for personal jurisdiction 'on any basis not inconsistent with the Constitution of this state or of the United States.' Id.

'A court may exercise either general or specific jurisdiction over a nonresident defendant.' Sher v. Johnson, 911 F.2d 1357, 61 (9th Cir.'90). Specific jurisdiction, the type at issue here, is appropriate when the following requirements are met: '(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.' Core-Vent Corp. v. Nobel..., 11 F.3d 1482, 85 (9th Cir.'93) (quoting Lake v. Lake, 817 F.2d 1416, 21 (9th Cir.'87)).

Some criteria for invoking local jurisdiction are if a defendant committed '(1) intentional actions (2) expressly aimed at [California] (3) causing harm, the brunt of which is suffered-- and which [IPA knew was] likely to be suffered--in [California?]' Core-Vent, at 1486.

There is also the question of whether the exercise of jurisdiction would be reasonable. See Core-Vent, at 1487.

In determining whether jurisdiction would comport with 'fair play and substantial justice,' courts balance the following seven factors: (1) the extent of the defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Core-Vent at 1487-88.

When a defendant purposefully avails itself of the forum state, courts begin with a presumption of reasonableness, Haisten v. Grass Valley Medical ..., 784 F.2d 1392, 97 (9th Cir.'86), which can only be overcome by a '`compelling case that the presence of some other considerations would render jurisdiction unreasonable.' ' Core-Vent, 11 F.3d at 1487 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 478 ('85)).

Burden is the primary concern in an assessment of reasonableness. See FDIC v. British-American..., 828 F.2d 1439, 44 (9th Cir.'87). However, '[d]espite its strong weight, this factor alone is not dispositive.' Core-Vent at 1489. Moreover, '`[u]nless such inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.'' Hirsche v. Blue Cross, Blue Shield..., 800 F.2d 1474, 78 (9th Cir.'86)

Mail, faxes, and telephone calls to xxx, newsletter sent to xxx, dues collected from xxx members, and its affiliations with societies in xxx all demonstrate purposeful injection into xxx.

The next factor, conflict with foreign state's sovereignty, concerns the extent to which the exercise of jurisdiction would conflict with the sovereignty of the defendant's state. '`[T]he foreign-acts-with-forum-effects jurisdiction principle must be applied with caution, particularly in an international context.'' Core-Vent, at 1489. In determining how much weight to give this factor, courts look to the presence or absence of connections to the United States generally. Id. The presence of an affiliate, subsidiary, or agent is a significant consideration in evaluating sovereignty concerns. Cf. id. (citing FDIC, 828 F.2d at 1444).

With regard to California's interest in adjudicating a suit, 'California maintains a strong interest in providing an effective means of redress for its residents [who have been] tortiously injured.' Id. (internal quotations omitted).

Efficiency concerns the efficiency of the forum, particularly where the witnesses and evidence are likely to be located. Id. More recently, this factor has been discounted since '[m]odern advances in communications and transportation have significantly reduced the burden of litigating in another country.' Sinatra v. National Inquirer, 854 F.2d 1191, 99 (9th Cir.'88).

Although the importance of the forum to the plaintiff nominally remains part of this test, cases have cast doubt on its significance. See e.g., Core-Vent at 1490 ('A mere preference on the part of the plaintiff for its home forum does not affect the balancing[.]'); Roth, at 624 ('[N]o doctorate in astrophysics is required to deduce that trying a case where one lives is almost always a plaintiff's preference.')

Finally, a plaintiff bears the burden of proving the unavailability of an alternative forum. FDIC, at 1445.

When all the factors are examined and neither party is clearly favored in the final balance it becomes a judgement call for the court to make like in Roth, at 625, where: 'Appellees may be able to show that the exercise of jurisdiction might be unreasonable, but the closeness of the question manifests that they cannot do so in a compelling fashion


Criminal sentences that can be served at the same time rather than one after the other.



The voluntary declaration to another person by someone who has committed a crime or misdemeanor in which he admits agency or participation in the same.

When made without bias or improper influence, confessions are admissible in evidence as the highest and most satisfactory proof because it is fairly presumed that no man would make such a confession against himself if the facts confessed were not true. But they are excluded if unfairly obtained.

Confessions should be received with great caution, as they are liable to many objections. There is danger of error from the misapprehension of witnesses, misuse of words, failure of a party to express his own meaning, a prisoner being oppressed by his unfortunate situation and influenced by hope, fear and sometimes a worse motive, to make an untrue confession.

A confession must be made: Voluntarily; By the party himself; To another person.

1. It must be voluntary. A confession forced from the mind by the flattery of hope or the torture of fear, comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it. This is the principle, but what amounts to a promise or a threat is not so easily defined. A confession will be considered as voluntarily made, although it was made after a promise of favor or threat of punishment, by a person not in authority over the prisoner. If, however, a person having such authority over him be present at the time and he express no dissent, evidence of such confession cannot be given.

2. The confession must be made by the party to be affected by it. It is evidence only against him. In case of a conspiracy, the acts of one conspirator are the acts of all while active in the progress of the conspiracy, but after it is over, the confession of one as to the part he and others took in the crime is not evidence against any but himself.

3. The confession must be to another person. It may be made to a private individual or under examination before a magistrate. The whole of the confession must be taken, together with whatever conversation took place at the time of the confession.

Confession is also when a prisoner being arraigned for an offence confesses or admits the crime with which he is charged, whereupon the plea of guilty is entered.

Confessions are classed into judicial and extra judicial. Judicial confessions are those made before a magistrate or in court in the due course of legal proceedings; when made freely by the party with a full and perfect knowledge of their nature and consequences, they are sufficient to found a conviction. These confessions are such as are authorized by a statute, as to take a preliminary examination in writing; or they are by putting in the plea of guilty to an indictment. Extra judicial confessions are those which are made by the party elsewhere than before a magistrate or in open court.


Criminal sentences that must be served one after the other rather than at the same time.



This word is applied to designate one species of contract known in the civil laws; these contracts derive their name from the consent of the parties which is required in their formation, as they cannot exist without such consent.

The contract of sale among civilians is an example of a consensual contract, because the moment there is an agreement between the seller and the buyer as to the thing and the price, the vendor and the purchaser have reciprocal actions. On the contrary, on a loan there is no action by the lender or borrower, although there may have been consent, until the thing is delivered or the money counted. This is a real contract in the sense of the civil law.

CONSENT - An agreement to something proposed, and differs from assent. Consent supposes: 1. A physical power to act; 2. A moral power of acting; 3. A serious, determined, and free use of these powers.

Consent is either express or implied. Express, when it is given viva voce or in writing; implied, when it is manifested by signs, actions or facts, or by inaction or silence which raise a presumption that the consent has been given.

- 1. When a legacy is given with a condition annexed to the bequest, requiring the consent of executors to the marriage of the legatee and under such consent being given, a mutual attachment has been suffered to grow up, it would be rather late to state terms and conditions on which a marriage between the parties should take place unless such consent was obtained by deceit or fraud.

- 2. Such a condition does not apply to a second marriage.

- 3. If the consent has been substantially given, though not modo et forma, the legatee will be held duly entitled to the legacy.

- 4. When trustees under a marriage settlement are empowered to sell 'with the consent of the husband and wife,' a sale made by the trustees without the distinct consent of the wife cannot be a due execution of their power.

- 5. Where a power of sale requires that the sale should be with the consent of certain specified individuals, the fact of such consent having been given ought to be evinced in the manner pointed out by the creator of the power or such power will not be considered as properly executed.

- 6. Courts of equity have established the rule, that when the true owner of property stands by and knowingly suffers a stranger to sell the same as his own without objection, this will be such implied consent as to render the sale valid against the true owner. And courts of law, unless restrained by technical formalities, act upon the principles of justice, for example, when a man permitted, without objection, the sale of his goods under an execution against another person.

The consent which is implied in every agreement is excluded; 1. By error in the essentials of the contract as, if Paul buys the horse of Peter, and promises to pay one hundred dollars for it, but the horse at the time of the sale, unknown to either party, was dead. This decision is founded on the rule that he who consents through error does not consent at all; non consentiunt qui errant; 2. By duress of the party making the agreement. 3. When it is obtained by fraud; 4. When given by a person who has no understanding, as an idiot, nor by one who, though possessed of understanding, is not in law capable of making a contract.


That which is interpreted.

Constructive Presence. The commission of crimes is when a party is not actually present, but an eye-witness to its commission and watches while another commits the crime.

Constructive Larceny. One where the taking was not apparently felonious, but by construction of the prisoner's acts it is just to presume he intended at the time of taking to appropriate the property feloniously to his own use as when he obtained the delivery of the goods animo furandi.

Constructive Breaking Into A House. In order to commit a burglary, there must be a breaking of the house that may be actual or constructive. A constructive breaking is when the burglar gains an entry into the house by fraud, conspiracy or threat. A familiar instance of constructive breaking is the case of a burglar who, coming to the house under pretence of business, gains admittance and then commits such acts as if there had been an actual breaking, would have amounted to a burglary.

Constructive Notice. Such a notice that, although it be not actual, is sufficient in law; an example of this is the recording of a deed, which is notice to all the world, as is the pendancy of a suit a general notice of an equity.

Constructive Annexation. The annexation to the inheritance by the law of certain things which are not actually attached to it; for example, the keys of a house and heir looms are constructively annexed.

Constructive Fraud. A contract or act which, not originating in evil design and contrivance to perpetuate a positive fraud or injury upon other persons, yet by its necessary tendency to deceive or mislead them, to violate a public or private confidence or to impair or injure public interest, is deemed equally reprehensible with positive fraud, and therefore is prohibited by law, as within the same reason and mischief as contracts and acts done malo animo.


Any willful disobedience to, or disregard of, a court order or any misconduct in the presence of a court; action that interferes with a judge's ability to administer justice or that insults the dignity of the court; punishable by fine or imprisonment or both. There are both civil and criminal contempts; the distinction is often unclear.

Contempt Of Court -- Civil Or Criminal

A judge who feels someone is improperly challenging or ignoring the court's authority has the power to declare the defiant person (called the contemnor) in contempt of court. There are two types of contempt - criminal and civil. Criminal contempt occurs when the contemnor actually interferes with the ability of the court to function properly - for example, by yelling at the judge. This is also called direct contempt because it occurs directly in front of the judge. A criminal contemnor may be fined, jailed or both as punishment for his act.

Civil contempt occurs when the contemnor willfully disobeys a court order. This is also called indirect contempt because it occurs outside the judge's immediate realm and evidence must be presented to the judge to prove the contempt. A civil contemnor, too, may be fined, jailed or both. The fine or jailing is meant to coerce the contemnor into obeying the court, not to punish him, and the contemnor will be released from jail just as soon as he complies with the court order. In family law, civil contempt is one way a court enforces alimony, child support, custody and visitation orders which have been violated.

However, many courts have realized that, at least regarding various procedural matters such as appointment of counsel, the distinction between civil and criminal contempt is often blurred and uncertain.

A Willful Disregard Or Disobedience Of A Public Authority.

By the Constitution of the United States, each house of congress may determine the rules of its proceeding's, punish its members for disorderly behaviour and, with the concurrence of two-thirds, expel a member. The same provision is substantially contained in the constitutions of the several states.

The power to make rules carries that of enforcing them, and to attach persons who violate them and punish them for contempts. This power of punishing for contempts is confined to punishment during the session of the legislature and cannot extend beyond it, and it seems this power cannot be exerted beyond imprisonment.

Courts of justice have an inherent power to punish all persons for contempt of their rules and orders, for disobedience of their process, and for disturbing them in their proceedings.

In some states, as in Pennsylvania, the power to punish for contempts is restricted to offences committed by the officers of the court, or in its presence, or in disobedience of its mandates, orders, or rules; but no one is guilty of a contempt for any publication made or act done out of court which is not in violation of such lawful rules or orders, or disobedience of its process. Similar provisions, limiting the power of the courts of the United States to punish for contempts, are incorporated in 28 U.S.C.

When a person is in prison for a contempt, it has been decided in New York that he cannot be discharged by another judge when brought before him on a habeas corpus; and it belongs exclusively to the court offended to judge of contempts and what amounts to them; and no other court or judge can, or ought to undertake in a collateral way, to question or review an adjudication of a contempt made by another competent jurisdiction.

This way be considered as the established doctrine equally in England as in this country.


18 U.S.C. 371 makes it a separate Federal crime or offense for anyone to conspire or agree with someone else to do something which, if actually carried out, would amount to another Federal crime or offense. So, under this law, a 'conspiracy' is an agreement or a kind of 'partnership' in criminal purposes in which each member becomes the agent or partner of every other member.

In order to establish a conspiracy offense it is not necessary for the Government to prove that all of the people named in the indictment were members of the scheme; or that those who were members had entered into any formal type of agreement; or that the members had planned together all of the details of the scheme or the 'overt acts' that the indictment charges would be carried out in an effort to commit the intended crime.

Also, because the essence of a conspiracy offense is the making of the agreement itself (followed by the commission of any overt act), it is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

What the evidence in the case must show beyond a reasonable doubt is:

First: That two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment;

Second: That the person willfully became a member of such conspiracy;

Third: That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the methods (or 'overt acts') described in the indictment; and

Fourth: That such 'overt act' was knowingly committed at or about the time alleged in an effort to carry out or accomplish some object of the conspiracy.

An 'overt act' is any transaction or event, even one which may be entirely innocent when considered alone, but which is knowingly committed by a conspirator in an effort to accomplish some object of the conspiracy.

A person may become a member of a conspiracy without knowing all of the details of the unlawful scheme, and without knowing who all of the other members are. So, if a person has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy even though he did not participate before, and even though he played only a minor part.

Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of one, does not thereby become a conspirator.

A combination or agreement of two or more persons to join together to attempt to accomplish some unlawful purpose. It is a kind of 'partnership in criminal purposes,' and willful participation in such a scheme or agreement, followed by the commission of an overt act by one of the conspirators is sufficient to complete the offense of 'conspiracy' itself even though the ultimate criminal object of the conspiracy is not accomplished or carried out. To establish the offense of 'conspiracy' the Government must prove:

(1) That two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment; (2) That the person willfully became a member of such conspiracy; (3) That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the methods (or 'overt acts') described in the indictment; and (4) That such 'overt act' was knowingly committed at or about the time alleged in an effort to effect or accomplish some object or purpose of the conspiracy.

A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a person has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy even though he had not participated before and even though he played only a minor part.

Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of one, does not thereby become a conspirator.

An agreement between two or more persons to do an unlawful act or an act which may become by the combination injurious to others. Formerly this offence was much more circumscribed in its meaning than it is now. Lord Coke describes it as 'a consultation or agreement between two or more to appeal or indict an innocent person falsely and maliciously, whom accordingly they cause to be indicted or appealed and afterwards the party is acquitted by the verdict of twelve men.'

The crime of conspiracy, according to its modern interpretation, may be of two kinds, Damely, conspiracies against the public, or such as endanger the public health, violate public morals, insult public justice, destroy the public peace, or affect public trade or business.

To remedy these evils the guilty persons may be indicted in the name of the commonwealth. Conspiracies against individuals are such as have a tendency to injure them in their persons, reputation, or property. The remedy in these cases is either by indictment or by a civil action.

In order to render the offence complete, there is no occasion that any act should be done in pursuance of the unlawful agreement entered into between the parties, or that any one should have been defrauded or injured by it. The conspiracy is the gist of the crane.

By the former laws of the United States, a willful and corrupt conspiracy to cast away, burn or otherwise destroy any ship or vessel with intent to injure any underwriter thereon, or the goods on board thereof, or any lender of money on such vessel, on bottomry or respondentia, is made felony, and the offender punishable by fine not exceeding ten thousand dollars and by imprisonment and confinement at hard labor not exceeding ten years.

By the old Revised Statutes of New York it is enacted that if any two or more persons shall conspire either: 1. To commit any offence, or; 2. Falsely and maliciously to indict another for any offence, or; 3. Falsely to move or maintain any suit, or; 4. To cheat and defraud any person of any property, by any means which are in themselves criminal, or; 5. To cheat and defraud any person of any property, by means which, if executed, would amount to a cheat, or to obtaining property by false pretences, or; 6. To commit any act injurious to the public health, to public morals, or to trade and commerce, or for the perversion or obstruction of justice, or the due administration of the laws; they shall be deemed guilty of a misdemeanor. No other conspiracies are there punishable criminally. And no agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.

When a felony has been committed in pursuance of a conspiracy, the latter, which is only a misdemeanor, is merged in the former; but when a misdemeanor only has been committed in pursuance of such conspiracy, the two crimes being of equal degree, there can be no legal technical merger.


An agreement between two or more competent parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, oral or just plain understood. Some contracts are required to be in writing in order to be enforced. (2) An agreement between two or more parties which creates obligations to do or not do the specific things that are the subject of that agreement. Examples of a contract are a lease, a promissory note, or a rental agreement.

This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, or one is bound to the other. Blackstone defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons.

Contracts are divided into express or implied. An express contract is one where the terms of the agreement are openly uttered and avowed at the time of making, as to pay a stated price for certain goods.

Express contracts are of three sorts: 1. By parol, or in writing, as contradistinguished from specialties. 2. By specialty or under seal. 3. Of record.

A parol contract is defined to be a bargain or voluntary agreement made, either orally or in writing not under seal, upon a good consideration, between two or more persons capable of contracting, to do a lawful act or to omit to do something, the performance whereof is not enjoined by law.

From this definition it appears, that to constitute a sufficient parol agreement, there must be:

1st. The reciprocal or mutual assent of two or more persons competent to contract. Every agreement ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. The agreement must, in general, be obligatory on both parties, or it binds neither. To this rule there are, however, some exceptions, as in the case of an infant's contract. He may always sue, though he cannot be sued on his contract.

2d. There must be a good and valid consideration, motive or inducement to make the promise upon which a party is charged, for this is of the very essence of a contract under seal and must exist, although the contract be reduced to writing.

3d. There must be a thing to be done, which is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral contract, or one contrary to public policy is void.

The second kind of express contracts are specialties, or those which are made under seal, as deeds, bonds, and the like; they are not merely written, but delivered over by the party bound. The solemnity and deliberation with which, on account of the ceremonies to be observed, a deed or bond is presumed to be entered into, attach to it an importance and character which do not belong to a simple contract. In the case of a specially, no consideration is necessary to give it validity, even in a court of equity. When, a contract by specialty has been changed by a parol agreement, the whole of it becomes a parol contract.

The highest kind of express contracts are those of record such as judgments, recognizances of bail, and in England, statutes merchant and staple, and other securities of the same nature, entered into with the intervention of some public authority.

Implied contracts are such as reason and justice dictates, and which, therefore, the law presumes every man undertakes to perform; as if a man employs another to do any business for him or perform any work, the law implies that the former contracted or undertook to pay the latter as much as his labor is worth; or if one takes up goods from a tradesman without any agreement of price, the law concludes that he contracts to pay their value.

Contracts considered in relation to their substance are either commutative or independent, principal or accessory.

Commutative contracts are those in which what is done, given or promised by one party is considered as equivalent to, or in consideration of what is done, given or promised by the other.

Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as considerations.

A principal contract is one entered into by both parties, on their accounts, or in the several qualities they assume.

An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage and pledges.

Contracts, considered in relation to the motive for making them, are either gratuitous or onerous. To be gratuitous the object of a contract must be to benefit the person with whom it is made without any profit or advantage received or promised as a consideration for it. It is not, however, the less gratuitous if it proceed either from gratitude for a benefit before received, or from the hope of receiving one hereafter, although such benefits be of a pecuniary nature. Any thing given or promised as a consideration for the engagement or gift; any service, interest or condition imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature.

Considered in relation to their effects, contracts are either certain or hazardous. A contract is certain when the thing to be done is supposed to depend on the will of the party or when, in the usual course of events, it must happen in the manner stipulated. It is hazardous when the performance of that which is one of its objects depends on an uncertain event. Some divide contracts under the five following heads:

Into reciprocal and unilateral.

Into consensual or those which are formed by the mere consent of the parties such as sale, hiring and mandate; and those in which it is necessary there should be something more than mere consent, such as loan of money, deposit or pledge, which from their nature require a delivery of the thing (rei) whence they are called real contracts.

Into first contracts of mutual interest which are such as are entered into for the reciprocal interest and utility of each of the parties, as sales exchange, partnership and the like.

Contracts of beneficence which are those by which only one of the contracting parties is benefited, as loans, deposit and mandate.

Mixed contracts, which are those by which one of the parties confers a benefit on the other, receiving something of inferior value in return, such as a donation subject to a charge,

Into principal and accessory.

Into those which are subjected by the civil law to certain rules and forms, and those which ate regulated by mere natural justice


The body of the offence; the essence of the crime.

It was a general rule not to convict unless the corpus delicti can be established, that is, until the dead body has been found. Instances have occurred of a person being convicted of having killed another, who, after the supposed criminal has been put to death for the supposed offence, has made his appearance - alive. The wisdom of the rule is apparent; but in order to insure justice, in extreme cases, it may be competent to prove the basis of the corpus delicti by presumptive, but conclusive, evidence.


The loss caused by one person to another or to his property, either with the design of injuring him, with negligence and carelessness, or by inevitable accident. The loss which some one has sustained, and the gain which he has failed to make.

He who has caused the damage is bound to repair it and, if he has done it maliciously, he may be compelled to pay beyond the actual loss. When damage occurs by accident, without blame to anyone, the loss is borne by the owner of the thing injured; e.g., if a horse run away with his rider, without any fault of the latter, and injures the property of another person, the injury is the loss of the owner of the thing. When the damage happens by the act of God or inevitable accident, e.g., by tempest, earthquake or other natural cause, the loss must be borne by the owner.

DAMAGES - The financial compensation awarded to someone who suffered an injury or was harmed by someone else's wrongful act.

The indemnity given by law, to be recovered from a wrong doer by the person who has sustained an injury, either in his person, property, or relative rights, in consequence of the acts of another.

Damages are given either for breaches of contracts or for tortious acts.

Damages for breach of contract may be given, for example, for the non-performance of a written or verbal agreement, or of a covenant to do or not to do a particular thing.

As to the measure of damages, the general rule is that the delinquent shall answer for all the injury which results from the immediate and direct breach of his agreement, but not from secondary and remote consequences.

In estimating the measure of damages sustained in consequence of the acts of a common carrier, it frequently becomes a question whether the value of the goods at the place of embarkation or the port of destination is the rule to establish the damages sustained. It has been ruled that the value at the port of destination is the proper criterion. But contrary decisions have taken place.

Damages for tortious acts are given for acts against the person, such as an assault and battery against the reputation, e.g., libels and slander; against the property, e.g., trespass, when force is used; for the consequential acts of the tort-feasor, e.g., when a man, in consequence of building a dam on his own premises, overflows his neighbor's land; against the relative rights of the party injured, e.g., for criminal conversation with his wife.

No settled rule or line of distinction can be marked out when a possibility of damages shall be accounted too remote to entitle a party to claim a recompense; each case must be ruled by its own circumstances.

Damages For Torts Are Either Compensatory Or Vindictive. By compensatory damages is meant such as are given morely to recompense a party who has sustained a loss in consequence of the acts of the defendant, and where there are no circumstances to aggravate the act, for the purpose of compensating the plaintiff for his loss; e..g., where the defendant had caused to be seized property of A for the debt of B, when such property was out of A's possession, and there appeared reason to believe it was B's.

Vindictive damages are such as are given against a defendant who, in addition to the trespass, has been guilty of acts of outrage and wrong which cannot well be measured by a compensation in money; e.g., where the defendant went to A's house, and with insult and outrage seized upon A's property, for a debt due by B, and carried it away leaving A's family in distress.

In cases of loss of which have been insured from maritime dangers, when an adjustment is made the damages are settled by valuing the property, not according to prime cost, but at the price at which it may be sold at the time of settling the average.

Any object capable of being readily used by one person to inflict severe bodily injury upon another person; and for such a weapon to have been used, it must be proved that the person not only possessed the weapon but that he intentionally displayed it in some manner while carrying out the forcible assault.

The sworn testimony of a witness taken before trial held out of court with no judge present. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. When a person is unavailable to testify at trial, the deposition of that person may be used. Part of the pre-trial discovery (fact-finding) process.

The testimony of a witness reduced to writing in due form of law, taken by virtue of a commission or other authority of a competent tribunal.

Before it is taken, the witness ought to be sworn or affirmed to declare the truth, the whole truth, and nothing but the truth. It should properly be written by the commissioner appointed to take it, or by the witness himself or by one not interested in the matter in dispute, who is properly authorized by the commissioner. It ought to answer all the interrogatories, and be signed by the witness, when he can write, and by the commissioner. When the witness cannot write, it ought to be so stated, and he should make his mark or cross.

Depositions in criminal cases cannot be taken without the consent of the defendant.

When the testimony of any person shall be necessary in any civil cause depending in any district, in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient, or very infirm, the deposition of such person may be taken de bene esse, before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor, or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause; provided that a notification from the magistrate before whom the deposition is to be taken, to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served to the adverse party or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after being notified of not less than at the rate of one day, Sundays exclusive, for every twenty miles travel.

And in causes of admiralty and maritime jurisdiction, or other causes of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid, shall be taken before a claim be put in, the like notification, as aforesaid, shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing done only by the magistrate taking the deposition, or by the deponent in his presence.

The deposition so taken shall be retained by such magistrate, until he deliver the same with his own, hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any given, to the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court, that probably it will not be in his power to produce the witnesses there testifying before the circuit court should an appeal be had, and shall move that their testimony shall be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court, which shall try the appeal, that the witnesses are then dead, or gone out of the United States, or to, a greater distance than as aforesaid, from the place where the court is sitting; or that, by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel or, appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, that nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem, to take depositions according to common usage when it may be necessary to prevent a failure or delay of justice; which power they shall severally possess nor to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognizable in any court of the United States, a circuit court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken.

The clerk of any court of the United States within which a witness resides or where he is found, is allowed to issue a subpoena to compel the attendance of such witness, and a neglect of the witness to attend may be punished by the court whose clerk has issued the subpoena, as a contempt. And when papers are wanted by the parties litigant, the judge of the court within which they are, may issue a subpoena duces tecum, and enforce obedience by punishment for a contempt.

Eccl. Law. The act of depriving a clergyman, by a competent tribunal, of his clerical orders, to punish him for some offence, and to prevent his acting in future in his clerical character.


The act of keeping a person against his will, or of keeping goods or property. All illegal detainers of the person amount to false imprisonment, and may be remedied by habeas corpus.

A detainer or detention of goods is either lawful or unlawful; when lawful, the party having possession of them cannot be deprived of it. The detention may be unlawful, although the original taking was lawful; as when goods were distrained for rent, and the rent was -afterwards paid; or when they 'Were pledged, and the money borrowed, and interest were afterwards paid; in these, and the like cases, the owner should make a demand, and if the possessor refuse to restore them, trover, detinue, or replevin will lie, at the option of the plaintiff.

There may also be a detainer of land and this is either lawful and peaceable, or unlawful and forcible. 1. The detainer is lawful where the entry has been lawful, and the estate is held by virtue of some right. 2. It is unlawful and forcible, where the entry has been unlawful, and with force, and it is retained, by force, against right; or even when the entry has been peaceable and lawful, if the detainer be by force, and against right; as, if a tenant at will should detain with force, after the will has determined, he will be guilty of a forcible detainer. A forcible detainer is a distinct offence from a forcible entry.

A writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named. A detainer may be lodged against one within the walls of a prison, on what account soever he is there.


Part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. Generally discovery devices include depositions, interogatories, requests for admissions, document production requests and requests for inspection.

The formal procedures used by parties to a lawsuit to obtain information before a trial is called discovery. Discovery helps a party find out the other side's version of the facts, what witnesses know, and other evidence. Rules dictating the allowable methods of discovery have been set up by Congress (for federal courts) and by state legislatures (for state courts). Common discovery devices include:

* Deposition--a proceeding in which a witness or party is asked to answer questions orally under oath before a court reporter.

* Interrogatories--written questions sent by one party to the other party for the latter to answer in writing under oath.

* Request for admission--a request to a party that he admit certain facts. One party sends the other a request for admission so that basic issues the parties agree upon can be resolved and not have to be proven if the parties go to trial.

* Request for physical examination--a request to a party that he be examined by a doctor if his health is at issue.

* Request for production of documents--a request to a party to hand over certain defined documents. In family law cases, parties often request from each other bank statements, pay stubs and other documents showing earnings, assets and debts.

* Request for inspection--a request by a party to look at tangible items (other than writings) in the possession or control of the other party. Items to be inspected include houses, cars, appliances and virtually any other physical item.

* Subpoena--an order telling a witness to appear in court or at a deposition. A subpoena is issued by the court, and if the witness fails to comply, he can be held in contempt of court.

* Subpoena duces tecum--an order telling a witness to turn over certain documents to a specific party or to bring them to a scheduled deposition. A subpoena duces tecum is issued by the court, and if the witness fails to comply, he can be held in contempt.

The scope of information obtainable through discovery is quite broad and not limited to what can be used in a trial. Federal courts and most state courts allow a party to discover any information 'reasonably calculated to lead to the discovery of admissible evidence.' Because of this broad standard, parties often disagree about what information must be exchanged and what may be kept confidential. These disputes are resolved through court rulings on discovery motions.

Intern. Law. The act of finding an unknown country.

The nations of Europe adopted the principle, that the discovery of any part of America gave title to the government by whose subjects, or by whose authority it was made, against all European governments. This title was to be consummated by possession.

Rights. The patent laws of the United States use this word as synonymous with invention or improvement.


When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances.

The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion, to which human nature is liable.

There is a species of discretion which is authorized by express law, and, without which, justice cannot be administered; for example, an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself; they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered, for one of these parties assuredly deserves a much more severe punishment than the other.

Crim. Law. The ability to know and distinguish between good and evil; between what is lawful and what is unlawful.

The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age so tender. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth may be repelled by positive evidence of vicious intention; for tenderness of years will not excuse a maturity in crime, the maxim in these cases being, malitia supplet aetatem. At fourteen, children are said to have acquired legal discretion.


Being tried twice for the same offense; prohibited by the 5th Amendmentto the U.S. Constitution. '[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).

Separate punishments in multiple criminal prosecution are constitutionally permissible, however, if the punishments are not based upon the same offenses. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if 'each provision requires proof of an additional fact which the other does not.' Id. at 304.

More recently, in U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the 'same elements test' set forth in Blockburger when it over-ruled the 'same conduct' test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the 'same elements' test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911) (early precedent establishing that in a subsequent prosecution '[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other').

In U.S. v. Felix, 112 S.Ct. 1377 (1992), the Court held that 'prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause.' Felix, at 1380. See also Saccoccia, 18 F.3d at 798 (citing Felix, at 1384) ('A substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes.')

The Double Jeopardy Clause protects against multiple punishments for the same offense. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306 (1984).

However, stretching the bounds of logic, the courts have decided that since the state and federal governments are separate sovereigns and therefore successive prosecutions based on the same underlying conduct do not violate the Double Jeopardy Clause if the prosecutions are brought by separate sovereigns. See, e.g., U.S. v. Koon, 34 F.3d 1416, 1438 (9th Cir.'94).

But, double jeopardy may exist if the federal prosecutors were mere 'tools' of the state or that the federal proceeding was a 'sham' carried out at the behest of the state. Koon, at 1438.

Close coordination between state and federal authorities, including 'the employment of agents of one sovereign to help the other sovereign in its prosecution,' does not implicate the Double Jeopardy Clause. U.S. v. Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir.'91), cert. denied, 502 U.S. 1098 (1992); accord U.S. v. Paiz, 905 F.2d 1014, 1024 (7th Cir.'90), cert. denied, 499 U.S. 924 (1991) (holding that the fact 'that an Indiana prosecutor was later designated a Special Deputy United States Attorney for purposes of a federal prosecution' was insufficient to establish a sham prosecution). Nor is a county's possible pecuniary interest in a federal proceeding sufficient to transform the federal government into a mere 'tool' of the county.



The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person's basic rights to 'life, liberty or property, without due process of law.' Courts have issued numerous rulings about what this means in particular cases.

The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 69 (1972).

The Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges against him. In order to determine whether a defendant has received constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). 'The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense.' Id.

Due process is best defined in one word--fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.

Example: Ezra and Sharon married in New York and had a son, Darwin. They divorced and Sharon moved to California; Darwin stayed with Ezra. Darwin later moved to California to live with Sharon; Sharon sued Ezra for child support in California. Ezra claimed that because he didn't live in California and had never been to California it would be unfair (a denial of due process) for him to defend the child support lawsuit in California. The U.S. Supreme Court agreed


Restraint or danger, actually inflicted or impending, which is sufficient in severity or apprehension to deprive a person of free choice, destroy his volition, or obtain consent only in form.

Under the law, a person is not guilty of a crime if he participated only because he believed, and had good reason to believe, that he would be seriously harmed if he did not participate and had no other way of escaping serious harm. The burden is on the government to prove the defendant's guilt beyond a reasonable doubt. To find someone guilty, therefore, there must be proof beyond a reasonable doubt that when he participated in the offense, he did not have a reasonable belief that such participation was the only way he could save himself from serious harm.

An actual or a threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract, or to discharge one.

Some divide duress into two sorts:

First. Duress of imprisonment, where a man actually loses his liberty. If a man be illegally deprived of his liberty until he sign and seal a bond, or the like, he may allege this duress, and avoid the bond. But, if a man be legally imprisoned, and either to procure his discharge, or on any other fair account, seal a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it.

Second. Duress per minas, which is either for fear of loss of life, or else for fear of mayhem, or loss of limb,; and this must be upon a sufficient reason. In this case, a man way avoid his own act. Lord Coke enumerates four instances in which a man may avoid his own act by reason of menaces: 1. For fear of loss of life; 2. Of member; 3. Of mayhem; 4. Of imprisonment.

It is not every degree of violence or any hind of threats, that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health; temper and disposition of the party, and 0ther circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.

A contract by violence or threats, is void, although the party in whose favor the contract is made, and not exercise the violence or make the threats, and although he were ignorant of them.

Violence or threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the hushand, the descendants or ascendants of the party are the object of them.

If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract A just and legal imprisonment, or threats of any measure authorized by law, and the circumstances of the case, are of this description.

But the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it; an arrest without cause of action, or a demand of bail in an unreasonable sum, or threat of such proceeding, by this rule invalidate a contract made under their pressure.

All the above articles relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract, any threats, even of slight injury, will invalidate it.

Actus Reus


Actus Reus refers to the physical aspect of the criminal activity.  The term generally includes (1) a volunatary act, (2) Social Harm.


3.02 Volunatary Act 


A. General Rule:  A person is not guilty of a crime unless his conduct includes a voluntary act.


B. Definitions: 

Act-Physical behavior

Voluntary- Any volitional movement, acts deemed involuntary include: spams, seizures and any bodily movement while unconscious or asleep.


3.03 Omission


A. Common Law Rule:  A person has no duty to act to prevent harm to another.

Common Law Exception:  (1) Based on status relationship- if the defendant has a special relationship to the person being harmed.  (2) Contractual Obligation- if a implied or expressed contract exists (Medical Care Provider, Hospital). (3) Creation of Risk- A person who harms another or property has a subsequent duty to botain medical or other assistance.  (4) Voluntary Assistance- If a person voluntarily provides assistance to another already in danger he must continue to provide the assistance until relieved by proper authority. 

B. Statutory Duty to Act- If a person fails to assist a person in need.

C. Model Penal Code- (1) If a statute requres it, (2) otherwise imposed by law. [MPC 2.04(3)(b)]


A. Elements of Social Harm- Consist of wrongful conduct, wrongful result, or both.

1.  Conduct Element- Ex: DUI

2. Results Element- Prohibited acts: Ex: Murder whether the death occurred by shooting, stabbing, or poisoning.

3.  Combinded Results- 1st degree Murder with explosive.

4.  Attendant Circumstances- A fact or condition that must be present at the time of the prohibited conduct which causes the prohibited results.


Actus Reus

Model Penal Code §§ 1.13(2)-(7), 2.01; New York Penal Law §§ 15.00(1)-(5), 15.10
Proctor v. State, 176 P. 771, 15 Okla. Crim. 338 (Ct. Crim. App. Okla. 1918)
Martin v. State, 31 Ala.App. 334, 17 So.2d 427 (1944)
Decina, People v., 2 N.Y.2d 133, 138 N.E.2d 799, 157 N.Y.S.2d 558 (1956)
Shaughnessy, People v., 66 Misc. 2d 19 (N.Y. Dist. Ct. 1971)
Newton, People v., 72 Misc. 2d 646 (N.Y. Sup. Ct. 1973)
Grant, People v., 46 Ill.App.3d 125,  360 N.E.2d 809,  4 Ill.Dec. 696 (1977)
Denoncourt v. Commonwealth, 504 Pa. 191, 470 A.2d 945 (1983)
State v. Tippetts, 180 Ore. App. 350 (2002)
Manna v. State, 803 So. 2d 866 (Fla. 2002)
Dubber, Markus, Actus Reus (web lesson) (© CALI)

Omission Offenses

Model Penal Code §§ 1.13(4)-(7), 2.01(3); New York Penal Law §§ 15.00(3)-(5), 15.10; Wisconsin Crim. Code § 940.34
Steinberg, People v., 79 N.Y.2d 673 (1992)
Knowles, United States v., 26 Fed. Cas. 801 (N.D. Cal. 1864)
Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962)

Status Offenses

Model Penal Code §§ 1.13(2)-(7), 2.01; New York Penal Law §§ 15.00(1)-(5), 15.10
Robinson v. California, 370 U.S. 660 (1962) (drug addiction) [oral argument]
Loving v. Virginia, 388 U.S. 1 (1967)
Powell v. Texas, 392 U.S. 514 (1968) (public intoxication)
Pottinger v. City of Miami, 810 F.Supp. 1551 (S.D. Fla. 1992) (homelessness)

Possession Offenses

Model Penal Code § 2.01(4); New York Penal Law §§ 10.00(8), 15.00(2)
Davis, People v., 33 N.Y.2d 221 (1973)
Leyva, People v., 38 N.Y.2d 160 (1975)
People v. Rivera, 77 A.D.2d 538 (N.Y. App. Div. 1980)
L., In re, 121 Misc. 2d 271 (N.Y. Fam. Ct. 1983)
Almodovar, People v., 62 N.Y.2d 126 (1984)
Heizman, People v., 127 A.D.2d 609 (N.Y. App. Div. 1987)
Betances, People v., 145 A.D.2d 961 (N.Y. App. Div. 1988)
People v. Manini, 79 N.Y.2d 561 (1992)
People v. Verez, 83 N.Y.2d 921 (1994)
Rivas v. United States, 734 A.2d 655 (D.C. Ct. App. 1999)
People v. Young, 94 N.Y.2d 171 (1999)
People v. Rosado, 2002 N.Y. Misc. LEXIS 974 (Crim. Ct. N.Y.)
United States v. Tucker, __ F.3d __ (10th Cir. Sept. 16, 2002)
Dubber, Markus Dirk, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. Crim. L. & Criminology 829 (2002)

That which produces an effect.


4.01 General Principal

The actus reus of a crime is composed of (1) a voluntary act, (2) that causes, (3) Social Harm.  As in all offenses contain an actus reus, causation is an implicit element of all crimes.


§ 4.02   Actual Cause (or "Cause-in-Fact")


[A]  Common Law


[1]  "But-for" test – There can be no criminal liability for resulting social harm "unless it can be shown that the defendant’s conduct was a cause-in-fact of the prohibited result." In order to make this determination, courts traditionally apply the "but-for" or "sine qua non" test: "But for the defendant’s voluntary act(s), would the social harm have occurred when it did?"


[2]  Multiple Actual Causes – When a victim’s injuries or death are sustained from two different sources, any of the multiple wrongdoers can be found culpable if his act was "a" cause-in-fact of the injury or death.  It is not necessary that any act be the sole and exclusive cause-in-fact of injury. 


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


[4]  Concurrent Causes – If, in the case of infliction of harm from two or more sources, each act alone was sufficient to cause the result that occurred when it did, the causes are concurrent and each wrongdoer can be found criminally liable.


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


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


§ 4.03 Proximate (or "Legal") Cause;

Common Law

[A]  Direct Cause – An act that is a direct cause of social harm is also a proximate cause of it.


[B]  Intervening Causes – An "intervening cause" is an independent force that operates in producing social harm, but which only comes into play after the defendant’s voluntary act or omission; e.g., the intervention can occur as a result of wrongdoing by a third party, or as the result of a dangerous or suicidal act by the victim, or a natural force ("an act of God").


When an intervening cause contributes to the social harm, the court must decide whether such intervening cause relieves the defendant of liability.  If so, the intervening event is deemed a "superseding cause" of the social harm.


[1]  De Minimis Contribution to the Social Harm – In some cases, if the defendant’s voluntary act caused minor social harm compared to the social harm resulting from a substantial, intervening cause, the law will treat the latter as the proximate cause of the social harm.


[2]  Foreseeability of the Intervening Cause – Some cases have held that the defendant cannot escape liability if the intervening act was reasonably foreseeable, whereas an unforeseeable intervening cause is superseding in nature.  However, in determining foreseeability, the law tends to distinguish between "responsive" (or "dependent") and "coincidental" (or "independent") intervening causes.


A responsive intervening cause is an act that occurs as a result of the defendant’s prior wrongful conduct.  Generally, a responsive intervening cause does not relieve the initial wrongdoer of criminal responsibility, unless the response was highly abnormal or bizarre.  E.g., a defendant who wrongfully injures another is responsible for the ensuing death, notwithstanding subsequent negligent medical treatment that contributes to the victim’s death or accelerates it. However, grossly negligent or reckless medical care is sufficiently abnormal to supersede the initial wrongdoer’s causal responsibility.


A coincidental intervening cause is a force that does not occur in response to the initial wrongdoer’s conduct. The only relationship between the defendant’s conduct and the intervening cause is that the defendant placed the victim in a situation where the intervening cause could independently act upon him.  The common law rule is that a coincidental intervening cause relieves the original wrongdoer of criminal responsibility, unless the intervention was foreseeable.


[3]  Apparent Safety Doctrine – A defendant’s unlawful act that puts a victim in danger may be found to be the proximate cause of resulting harm, unless the victim has a route to safety but instead puts herself in further harm, which causes the injury of death.  E.g., a spouse’s physical violence causes his wife to flee the house on a freezing night, and although the wife can find nearby shelter with a relative or friend, decides to spend the rest of the night outside, and dies from freezing temperature.


[4]  Free, Deliberate, Informed Human Intervention – A defendant may be relieved of criminal responsibility if an intervening cause, e.g., a victim chose to stay outside in the freezing night and consequently died, was the result of a free, deliberate and informed human intervention.  A subsequent dangerous action that caused the victim’s injury or death would not relieve the defendant of liability is such act resulted from duress.


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


§ 4.04 Prox Cause (Actually, Culpability);

Model Penal Code 


Unlike the common law, the "but-for" test is the exclusive meaning of "causation" under the Model Penal Code. The Code treats matters of "proximate causation" as issues relating instead to the defendant’s culpability.  That is, in order to find the defendant is culpable, the social harm actually inflicted must not be "too remote or accidental in its occurrence from that which was designed, contemplated or risked. [MPC §2.03(2)(b), (3)(c)]  In such circumstances, the issue in a Model Code jurisdiction is not whether, in light of the divergences, the defendant was a "proximate cause" of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability—purpose, knowledge, recklessness, or negligence—required by the definition of the offense.


In the rare circumstance of an offense containing no culpability requirement, the Code provides that causation "is not established unless the actual result is a probable consequence of the defendant’s conduct." [MPC § 2.03(4)]  This would mean that in a jurisdiction that recognizes the felony-murder rule, but which applies Model Penal Code causation principles, a defendant may not be convicted of felony-murder if the death was not a probable consequence of his felonious conduct.



Model Penal Code § 2.03; New York Penal Law (not codified)
People v. Kibbe, 35 N.Y.2d 407 (1974) (non-codified; depraved indifference murder)
People v. Warner-Lambert, 51 N.Y.2d 295 (1980) (manufacturer's homicide liability)
In re Anthony M., 63 N.Y.2d 270 (1984) (felony murder)
People v. Griffin, 80 N.Y.2d 723 (1993) (medical malpractice as intervening cause of death)
People v. Hernandez, 82 N.Y.2d 309 (1993) (felony murder)
People v. Matos, 83 N.Y.2d 509 (1994) (felony murder)
Hamilton, United States v., 182 F.Supp. 548 (D.D.C.1960)
Stamp, People v., 2 Cal.App.3d 203, 82 Cal.Rptr. 598 (1969) (felony murder; non-codified)
Root, Com. v., 403 Pa. 571,  170 A.2d 310 (1961) (non-codified)
Feinberg, Com. v., 433 Pa. 558,  253 A.2d 636 (1969) (non-codified)
Rementer, Com. v., 410 Pa. Super. 9, 598 A2d 1300 (1991) (codified)
Watson, State v., 191 N.J. Super. 464 (1983) (codified; brain death)
Stephenson v. State, 179 N.E. 633, 205 Ind. 141 (1932)
Frazier, State v., 339 Mo. 966,  98 S.W.2d 707 (1936)
Rhoades, Com. v., 379 Mass. 810,  401 N.E.2d 342 (1980)
Twitchell, Com. v., 416 Mass. 114,  617 N.E.2d 609 (1993)
Dubber, Markus, Causation (interactive web lesson) (© CALI)



 § 5.01   Common Law Principle and Definition

Simply put, "mens rea" refers to the mental component of a criminal act.  However, there is much ambiguity inherent in this term.  The doctrine has been defined in two basic ways:


[A]  "Culpability" Definition of "Mens rea" – In the early development of the doctrine, many common law offenses failed to specify any mens rea. Mens rea was defined broadly in terms of moral blameworthiness or culpability.  Thus, at common law and in jurisdictions that still define the doctrine broadly, it was and is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as "intentionally," "knowingly," or "recklessly."


[B]  "Elemental" Definition of "Mens rea" – Much more prevalent today is a narrow definition of mens rea which refers to the particular mental state set out in the definition of an offense. In this sense, the specific mens rea is an element of the crime.  Note that a person can be culpable in that he was morally blameworthy yet lack the requisite


§ 5.02   Specific Mens rea Requirements


[A]  "Intentionally" – A person "intentionally" causes the social harm of an offense if: (1) it is his desire (i.e., his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.


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


[B]  "Knowingly" or "With Knowledge" – Sometimes, knowledge of a material fact an attendant circumstance is a required element of an offense.  A person has "knowledge" of a material fact if he is aware of the fact or he correctly believes that it exists.  Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of "wilful blindness" or "deliberate ignorance," i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation of the fact.  An instruction in this regard is sometimes called an "ostrich instruction."


[C]  "Wilfully" – "Wilful" has been held in different jurisdictions to be synonymous with other terms, e.g., "intentional," "an act done with a bad purpose," "an evil motive," or "a purpose to disobey the law."


[D]  "Negligence" – Criminal negligence (as opposed to civil negligence) ordinarily requires a showing of a gross deviation from the standard of reasonable care. A person is criminally negligent if he takes a substantial, unjustifiable risk of causing the social harm that constitutes the offense charged.


Three factors come into play when determining whether a reasonable person would have acted as the defendant did:


 1.)the gravity of harm that foreseeably would result from the defendant’s conduct;
 2.)the probability of such harm occurring; and
 3.)the burden to the defendant of desisting from the risky conduct.


[E]  "Recklessness" – A finding of recklessness requires proof that the defendant disregarded a substantial and unjustifiable risk of which he was aware. 


[F]  Distinction Between Negligence and Recklessness – The line between "criminal negligence" and "recklessness" is not drawn on the basis of the extent of the defendant’s deviation from the standard of reasonable care — the deviation is gross in both cases — but rather is founded on the defendant’s state of mind. Criminal negligence involves an objective standard – the defendant, as a reasonable person, should have been aware of the substantial and unjustifiable risk he was taking); recklessness implicates subjective fault, in that the defendant was in fact aware of the substantial and unjustifiable risk he was taking but disregarded the risk.


[G]  "Malice" – A person acts with "malice" if he intentionally or recklessly causes the social harm prohibited by the offense.


§ 5.03 Statutory Interpretation of Mens rea Terms


It is sometimes necessary to determine the precise elements that the mens rea term is intended to modify.  For example, in United States v. X-Citement Video, Inc., [513 U.S. 64 (1994)] the defendant was convicted of violating a federal statute that made it a felony to knowingly transport, receive, or distribute in interstate or foreign commerce any visual depiction "involv[ing] the use of a minor engaging in sexually explicit conduct." Although the defendant admitting to trading in sexually explicit materials, he claimed that he was unaware that such materials depicted a minor.  The issue before the Supreme Court was whether the term "knowingly" modified the attendant circumstance element (relating to the age of the person depicted in the video) in addition to the obvious modification of the conduct elements ("transport, receive, or distribute").


The Supreme Court determined that the legislature intended to require knowledge of the age of the person in the video since distribution of sexually explicit, but non-obscene, videos of adults was lawful.  It was therefore the knowledge that the video depicted child pornography that was criminal. 


§ 5.04 Specific Intent" and "General Intent


The common law distinguished between general intent and specific intent crimes.  Today, most criminal statutes expressly include a mens rea term, or a particular state of mind is judicially implied.  

[A]  Specific Intent – Generally speaking, a "specific intent" offense is one in which the definition of the crime:


  1.) includes an intent or purpose to do some future act, or to achieve some further consequence (i.e., a special motive for the conduct), beyond the conduct or result that constitutes the actus reus of the offense, e.g., "breaking and entering of the dwelling of another in the nighttime with intent to commit a felony"; or
  2.) provides that the defendant must be aware of a statutory attendant circumstance, e.g., "receiving stolen property with knowledge that it is stolen."


[B]  General Intent – An offense that does not contain one of the above features is termed "general intent," e.g., battery, often defined statutorily as "intentional application of unlawful force upon another." This is a general-intent crime, for the simple reason that the definition does not contain any specific intent beyond that which relates to the actus reus itself. The only mental state required in its definition is the intent to "apply unlawful force upon another," the actus reus of the crime.


§ 5.05 

[A]  General Principle – Model Penal Code  § 2.02(1) provides that, except in the case of offenses characterized as "violations," a person may not be convicted of an offense unless "he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense."  The Code requires the prosecution to prove that the defendant committed the actus reus of the offense—in fact, each ingredient of the offense—with a culpable state of mind, as set out in the specific statute.


Thus the Code:


· eschews the "culpability" meaning of "mens rea";
· discards the common law distinction between "general intent" and "specific intent";
· limits mens rea to four terms:  "purposely"; "knowingly"; "recklessly"; and "negligently";
· requires application of mens rea to every material element of a crime, including affirmative defenses.


[B]  Mens Rea Terms


[1]  "Purposely" – In the context of a result or conduct, a person acts "purposely" if it is his "conscious object to engage in conduct of that nature or to cause such a result." [MPC § 2.02(2)(a)(i)] A person acts "purposely" with respect to attendant circumstances if he "is aware of the existence of such circumstances or he believes or hopes that they exist."


[2]  "Knowingly" – A result is "knowingly" caused if the defendant "is aware that it is practically certain that his conduct will cause such a result." [MPC § 2.02(2)(b)(ii)] With "attendant circumstances" and "conduct" elements, one acts "knowingly" if he is "aware that his conduct is of that nature or that such [attendant] circumstances exist.  Furthermore, the Code states that knowledge is established, if "a person is aware of a high probability of . . . [the attendant circumstance’s] existence, unless he actually believes that it does not exist." [MPC § 2.02(7)]


[3]  "Recklessly" and "Negligently" – The Code provides that a person acts "recklessly" if he "consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct." A risk is "substantial and unjustifiable" if "considering the nature and purpose of the defendant’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation."  [MPC § 2.02(2)(c)]


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


As in common law, "negligence" and "recklessness," therefore, require the same degree of risk-taking: "substantial and unjustifiable," and the difference between them lies in the fact that the reckless defendant "consciously disregards" the risk, whereas the negligent defendant’s risk-taking is inadvertent.


[C]  Principles of Statutory Interpretation – A single mens rea term — of whatever specific type — modifies each actus reus element of the offense, absent a plainly contrary purpose of the legislature.


Model Penal Code § 2.02; New York Penal Law §§ 15.00(6), 15.05
Strong, People v., 37 N.Y.2d 568 (1975) (reckless v. negligent)
L., In re, 121 Misc. 2d 271 (N.Y. Fam. Ct. 1983)
Coe, People v., 71 N.Y.2d 852 (1988) ("willfully")
Ryan, People v., 82 N.Y.2d 497 (1993)
Pierce, Commonwealth v., 138 Mass. 165 (1884)
Faulkner, Regina v., 13 Cox Crim. Cas. 550 (1877)
Tolson, Queen v., 23 Q.B.D. 185 (1889) ("mens rea")
Cunningham, R. v., [1957] 2 QB 396 ) ("malicious")
Sandstrom v. Montana, 442 U.S. 510 (1979)
Bailey, United States v., 444 U.S. 394 (1980)
Creighton, R. v., [1993] 3 S.C.R.
Palani Goundan v. Emperor, 1920 Madras 862 (India)
Thabo Meli v. Regina, 1 All Eng. Rep. 373 (1954) (South Africa)
Cretenoud c. Procureur Général, RO 86 IV 12 (1960) (Switzerland)
Sayre, Francis Bowes, Mens Rea, 45 Harv. L. Rev. 974 (1932)
Packer, Herbert L., Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107
Robinson, Paul H. & Jane A. Grall, Element Analysis in Defining Criminal Liability, 35 Stan. L. Rev. 681 (1983)
Simons, Kenneth W., Rethinking Mental States, 72 B.U. L. Rev. 463 (1992)



STRICT LIABILITY § 6.01 Conduct Prohibited by Strict Liability Statutes

Strict liability offenses are those that lack a mens rea requirement regarding one or more elements of the actus reus. For such statutorily enumerated offenses, the mere proof of the actus reus is sufficient for a conviction, regardless of the defendant’s state of mind at the time of commission.


Strict liability statutes often address so-called "public welfare" offenses.  Such statutes are aimed at conduct that, although not morally wrongful, could gravely affect the health, safety, or welfare of a significant portion of the public. Examples include statutes that prohibit the manufacture or sale of impure food or drugs to the public, anti-pollution environmental laws, as well as traffic and motor-vehicle regulations.


Strict liability statutes also regulate other types of conduct against individuals, such as the offense of statutory rape which is aimed at protecting underage females who may be too immature to make knowing decisions about sexual activity.


STRICT LIABILITY § 6.02 Presumption Against Strict Liability

While strict liability statutes are not per se unconstitutional, at least under due process grounds [United States v. Balint, 258 U.S. 250 (1922)], the Court has indicated that there is a presumption against strict liability absent a contrary legislative purpose.  [Morissette v. United States, 342 U.S. 246 (1952); United States v. United States Gypsum Co [438 U.S. 422 (1978)] Thus, most courts will interpret a federal or state statute, otherwise silent in regard to mens rea, as containing an implicit requirement of some level of moral culpability. 

Strict Liability § 6.03 Model Penal Code

The Model Penal Code does not recognize strict liability, except with respect to offenses graded as "violations."  For all other offenses, section 2.02 requires the prosecution to prove some form of culpability regarding each material element.


CATEGORIES OF DEFENSES: § 7.01 Justification Defenses

A justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishable under the specific circumstances of the case.  Justification focuses on the nature of the conduct under the circumstances.


Examples include:


· Self-defense
· Defense of others
· Defense of property and habitation
· Use of lawful force
· Necessity
Category of Defenses § 7.02 Excuse Defenses

Excuse defenses focus on the defendant’s moral culpability or his ability to possess the requisite mens rea.  An excuse defense recognizes that the defendant has caused some social harm but that he should not be blamed or punished for such harm. 


Examples include:


· Duress
· Insanity
· Diminished capacity
· Intoxication (in very limited circumstances)
· Mistake of fact
· Mistake of law (in very limited circumstances
Category of Defenses § 7.03 Specialized Defenses ("Offense Modifications")


Justification and excuse defenses apply to all crimes. Some defenses, however, pertain to just one or a few crimes. For example, "legal impossibility" is a common law defense to the crime of attempt.


Category of Defenses § 7.04 Extrinsic Defenses ("Non-exculpatory Defenses")

Justification, excuse, and offense-modification defenses all relate to the defendant’s culpability or to the wrongfulness of his conduct.  In contrast, extrinsic or non-exculpatory defenses bar conviction, or even prosecution, based on factors unrelated to the defendant’s actions or state of mind at the time of commission.  Examples of such defenses are statutes of limitations, diplomatic immunity, and incompetency to stand trial.

SELF-DEFENSE § 8.01 Use of Non-deadly force

[A]  Common Law – A non-aggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by the other person.  However, the use of force must not be excessive in relation to the harm threatened.  One is never permitted to use deadly force to repel a non-deadly attack.


[B]  Model Penal Code – A person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other on the present occasion. [MPC § 3.04(1)]  In a departure from common law principles but in accord with the modern trend, a person may not use force to resist an arrest that he knows is being made by a police officer, even if the arrest is unlawful (e.g., without probable cause). [MPC § 3.04(2)(a)(i)]  However, this rule does not prohibit use of force by an arrestee who believes that the officer intends to use excessive force in effectuating the arrest.


The provision does not specifically require the defendant’s belief to be reasonable. However, nearly all of the Code justification defenses, including the defense of self-protection, are modified by § 3.09, which re-incorporates a reasonableness component.


Use of Force in Defense of Self, Other, or Property

Model Penal Code §§ 3.04-.07; New York Penal Law §§ 35.15-.25
LaVoie, People v., 155 Colo. 551,  395 P.2d 1001 (1964)
Peterson, United States v., 483 F.2d 1222 (D.C. Cir. 1973)
Ceballos, People v., 12 Cal.3d 470 (1974)
Martin v. Ohio, 480 U.S. 228 (1987) (burden of proof)
State v. Leidholm, 334 N.W.2d 811 (N.D. 1983) (battered woman syndrome)
People v. Torres, 128 Misc. 2d 129 (N.Y. S. Ct. 1985) (battered woman syndrome)
Kelly, State v., 97 N.J. 178 (1984) (battered woman syndrome)
Kelly, State v., 33 Wash. App. 541 (1982) (battered woman syndrome)
Weston v. State, 682 P.2d 1119 (Ak. 1984)
Bowens, State v., 108 N.J. 622, 532 A.2d 215 (1987)
Almodovar, People v., 62 N.Y.2d 126 (1984)
McManus, People v., 67 N.Y.2d 541 (1986)
People v. Goetz, 68 N.Y.2d 96 (1986)
Hagi, People v., 169 A.D.2d 203 (N.Y. App. Div. 1991)
People v. Petronio, 2002 N.Y. Misc. LEXIS 960 (Co. Ct. N.Y. 2002)
People v. Hernandez, 2002 N.Y. LEXIS 1623
People v. Bradley, 2002 N.Y. App. Div. LEXIS 8254
Coughlin, Anne, Excusing Women, 82 Cal. L. Rev. 1 (1994)


Self-Defense § 8.02 Use of Deadly force

[A]  Common Law – Deadly force is only justified in self-protection if the defendant reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.  Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will apparently suffice.


[B]  Model Penal Code – The Code specifically sets forth the situations in which deadly force is justifiable:  when the defendant believes that such force is immediately necessary to protect himself on the present occasion against:


 2.)serious bodily injury;
 3.)forcible rape; or


The Code prohibits the use of deadly force by a deadly aggressor, i.e., one who, "with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter." [MPC § 3.04(2)(b)(i)] 


Self-Defense § 8.03 Retreat Rule

[A]  Common Law – If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force is unnecessary. Nonetheless, jurisdictions are sharply split on the issue of retreat.  A slim majority of jurisdictions permit a non-aggressor to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety. Many jurisdictions, however, provide that a non-aggressor who is threatened by deadly force must retreat rather than use deadly force, if he is aware that he can do so in complete safety.


A universally recognized exception to the rule of retreat is that a non-aggressor need not ordinarily retreat if he is attacked in his own dwelling place or within its curtilage [the immediately surrounding land associated with the dwelling], even though he could do so in complete safety.


[B]  Model Penal Code – One may not use deadly force against an aggressor if he knows that he can avoid doing so with complete safety by retreating.  Retreat is not generally required in one’s home or place of work.  However, retreat from the home or office is required: (1) if the defendant was the initial aggressor, and wishes to regain his right of self-protection; or (2) even if he was not the aggressor, if he is attacked by a co-worker in their place of work. However, the Code does not require retreat by a non-aggressor in the home, even if the assailant is a co-dweller.


Self-Defense § 8.04 "Reasonable Belief"

The privilege of self-defense is based on reasonable appearances, rather than on objective reality. Thus, a person is justified in using force to protect himself if he subjectively believes that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false.


Courts are increasingly applying a standard of the "reasonable person in the defendant’s situation" in lieu of the "reasonable person" standard.  Factors that may be relevant to the defendant’s situation or circumstances include:


 1.)the physical movements of the potential assailant;
 2.)any relevant knowledge the defendant has about that person;
 3.)the physical attributes of all persons involved, including the defendant;
 4.)any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances.


Self-Defense § 8.05 "Imperfect" Self-Defense Claims

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


[B]  Model Penal Code – The Model Penal Code likewise recognizes an imperfect defense where the defendant asserts a justification defense, evaluated in terms of the defendant’s subjective belief in the necessity of using the force or other material circumstances.  However, justification defenses are subject to section 3.09(2), which provides that when the defendant is reckless or negligent in regard to the facts relating to the justifiability of his conduct, the justification defense is unavailable to him in a prosecution for an offense for which recklessness or negligence suffices to establish culpability.

Self-Defense § 8.06 Battered Woman Syndrome

A special type of self-defense is the "battered woman syndrome" defense.  Cases in which this defense arise may occur under three scenarios:


(1) "Confrontational" homicides, i.e., cases in which the battered woman kills her partner during a battering incident.  In such cases, an instruction on self-defense is almost always given.  It is now routine for a court to permit a battered woman to introduce evidence of the decedent’s prior abusive treatment of her, in support of her claim of self-defense.


(2)  "Non-confrontational" homicide, where the battered woman kills her abuser while he is asleep or during a significant lull in the violence. Courts are divided on whether self-defense may be claimed if there is no evidence of threatening conduct by the abuser at the time of the homicide, although the majority position is that homicide under such circumstances is unjustified.


(3)  Third-party hired-killer cases, in which the battered woman hires or importunes another to kill her husband, and then pleads self-defense.  Courts have unanimously refused

SELF-DEFENSE § 8.07 Risk to Innocent Bystanders

[A]  Common Law – Courts apply a transferred-justification doctrine, similar to the transferred-intent rule:  a defendant’s right of self-defense "transfers" (just as intent to kill does) from the intended to the actual victim. While the defense is absolute in some jurisdictions, other courts do not treat this rule as absolute. If the defendant, acting justifiably in self-defense against an aggressor, fires a weapon "wildly or carelessly," thereby jeopardizing the safety of known bystanders, some courts hold the defendant guilty of manslaughter (or of reckless endangerment if no bystander is killed), but not of intentional homicide.    


[B]  Model Penal Code – If a person justifiably uses force against an aggressor, but uses such force in a reckless or negligent manner in regard to the safety of an innocent bystander, the justification defense, which is available to the person in regard to the aggressor, is unavailable to him in a prosecution for such recklessness or negligence as to the bystander.


DEFENSE OF OTHERS § 9.01 Common Law Rule

Generally speaking, a person is justified in using force to protect a third party from unlawful use of force by an aggressor to the extent that the third party is justified in acting in self-defense.  This so-called "alter ego" rule, as applied in early common law, required that the third party had to in fact have been justified in self-defense, irrespective of how the situation would have appeared to a reasonable person.  Today, however, the majority view is that the use force may be justified if it reasonably appears necessary for the protection of the third party.


Use of Force in Defense of Self, Other, or Property

Model Penal Code §§ 3.04-.07; New York Penal Law §§ 35.15-.25
LaVoie, People v., 155 Colo. 551,  395 P.2d 1001 (1964)
Peterson, United States v., 483 F.2d 1222 (D.C. Cir. 1973)
Ceballos, People v., 12 Cal.3d 470 (1974)
Martin v. Ohio, 480 U.S. 228 (1987) (burden of proof)
State v. Leidholm, 334 N.W.2d 811 (N.D. 1983) (battered woman syndrome)
People v. Torres, 128 Misc. 2d 129 (N.Y. S. Ct. 1985) (battered woman syndrome)
Kelly, State v., 97 N.J. 178 (1984) (battered woman syndrome)
Kelly, State v., 33 Wash. App. 541 (1982) (battered woman syndrome)
Weston v. State, 682 P.2d 1119 (Ak. 1984)
Bowens, State v., 108 N.J. 622, 532 A.2d 215 (1987)
Almodovar, People v., 62 N.Y.2d 126 (1984)
McManus, People v., 67 N.Y.2d 541 (1986)
People v. Goetz, 68 N.Y.2d 96 (1986)
Hagi, People v., 169 A.D.2d 203 (N.Y. App. Div. 1991)
People v. Petronio, 2002 N.Y. Misc. LEXIS 960 (Co. Ct. N.Y. 2002)
People v. Hernandez, 2002 N.Y. LEXIS 1623
People v. Bradley, 2002 N.Y. App. Div. LEXIS 8254
Coughlin, Anne, Excusing Women, 82 Cal. L. Rev. 1 (1994)
DEFENSE OF OTHERS § 9.02 Model Penal Code

[A]  General Rule – Subject to retreat provisions, Section 3.05(1) justified force by an intervenor in order to protect a third party if:


 1.)he uses no more force to protect the third-party than he would be entitled to use in self-protection, based on the circumstances as he believes them to be;
 2.)under the circumstances as he believes them to be, the third party  would be justified in using such force in self-defense; and
 3.)he believes that intervention is necessary for the third party’s protection.


[B]  Effect of Retreat Rules – The Code’s retreat rules have applicability in very limited circumstance here:


 1.)the intervenor is only required to retreat before using force in protection of a third party in the unlikely circumstance that he knows that such retreat will assure the third party’s complete safety. [MPC § 3.05(2)(a)]
 2.)the intervenor must attempt to secure the third party’s retreat if the third party herself would be required to retreat, if the defendant knows that the third party can reach complete safety by retreating. [MPC § 3.05(2)(b)]
 3.)neither the intervenor nor the third party is required to retreat in the other’s dwelling or place of work to any greater extent than in her own dwelling or place of work. [MPC § 3.05(2)(c)]


DEFENSE OF PROPERTY AND HABITATION §10.01 - §10.03 Defense of Property

[A]  Common Law – A person in possession of real or personal property is justified in using non-deadly force against a would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawful dispossession of the property. Under no circumstances may a person use deadly force to prevent dispossession.


[1]  Possession versus Title to Property – The privilege of defense-of-property entitles a person to use necessary force to retain rightful possession of, as distinguished from title to, personal or real property.


[2]  Threat to Use Deadly Force – Although states universally prohibit use of deadly force to protect property, they are divided as to whether one may threaten it as a way to prevent dispossession.   


[3]  Claim of Right – When a person asserts a claim of right to property in the possession of another and seeks to reclaim such property, the possessor is not justified in using force to thwart the dispossession if he knows, believes, or as a reasonable person should believe, that the claimant has a legitimate claim of right to possession of the property in question.  Since the use of force to protect property is legitimate only if the act/attempted act of dispossession is unlawful, in such cases of a legitimate claim to property, the act of dispossession is lawful.


[4]  Recapture of Property – A person may not ordinarily use force to recapture property of which he has been unlawfully dispossessed except if he acts promptly after dispossession.  One may follow the dispossessor in hot pursuit in order to recapture his property and if necessary, use non-deadly force in the process.


[B]  Model Penal Code


[1]  General Rule Allowing Use of Non-deadly Force – The Model Penal Code essentially conforms to the common law.  Section 3.06(1)(a) provides that a person may use non-deadly force upon another person to prevent or terminate an entry or other trespass upon land, or to prevent the carrying away of personal property, if he believes that three conditions exist:


 1.)the other person’s interference with the property is unlawful;
 2.)the intrusion affects property in the defendant’s possession, or in the possession of someone else for whom he acts; and
 3.)non-deadly force is immediately necessary


[2]  Limitations on Use of Non-deadly Force – Non-deadly force that is otherwise permitted in defense of property is unjustified in two circumstances.


 1.)Force is not "immediately necessary" unless the defender first requests desistance by the interfering party. A request is not required, however, if the defender believes that a request would be useless, dangerous to himself or to another, or would result in substantial harm to the property before the request can effectively be made. [MPC § 3.06(3)(a)]
 2.)One may not use force to prevent or terminate a trespass to personal or real property if he knows that to do so would expose the trespasser to a substantial risk of serious bodily injury. [MPC § 3.06(3)(b)]


[3]  Recapture of Property – Section 3.06(1)(b) permits the use of non-deadly force to re-enter land or to recapture personal property if:


 1.)the defendant believes that he or the person for whom he is acting was unlawfully dispossessed of the property; and either
 2a.)the force is used immediately after dispossession; or
 2b.)even if it is not immediate, the defendant believes that the other person has no claim of right to possession of the property. Here, however, re-entry of land (as distinguished from recapture of personal property) is not permitted unless the defendant also believes that it would constitute an "exceptional hardship" to delay re-entry until he can obtain a court order.


[4]  Deadly Force to Prevent Serious Property Crimes – The Model Code goes beyond the common law in permitting deadly force to protect any type of property in limited circumstances, where the defendant believes


§ 10.02   Defense of Habitation


[A]  Common Law Use of Deadly Force – It is generally accepted that a person may use deadly force to defend his home, but the extent to which such exercise of deadly force is justified varies.  Some courts allow deadly force only to prevent entry into the home.  In such jurisdictions, once entry has occurred, the defendant is only justified in using deadly force if based on another ground such as self-defense.  Others permit deadly force in the home even after entry has been completed.


There are three approaches to the use of deadly force in defense of habitation.


[1]  Early Common Law Rule – Early common law broadly defined this rule to permit a home-dweller to use deadly force if he reasonably believed that such force was necessary to prevent an imminent and unlawful entry of his dwelling.


[2]  "Middle" Approach – A more narrow approach to the defense of habitation provides that a person may use deadly force if he reasonably believes that:


 1.)the other person intends an unlawful and imminent entry of the dwelling;
 2.)the intruder intends to injure him or another occupant, or to commit a felony therein; and
 3.)deadly force is necessary to repel the intrusion.



[3]  "Narrow" Approach – A narrow version of the defense provides that a person is justified in using deadly force upon another if he reasonably believes that:


 1.)the other person intends an unlawful and imminent entry of the dwelling;
 2.)the intruder intends to commit a forcible felony – a felony committed by forcible means, violence, and surprise, such as murder, robbery, burglary, rape, or arson – or to kill or seriously injure an occupant; and
 3.)such force is necessary to prevent the intrusion.


[B]  Model Penal Code – A person may use deadly force upon an intruder if he believes that:


 1.)the intruder is seeking to dispossess him of the dwelling;
 2.)the intruder has no claim of right to possession of the dwelling; and
 3.)such force is immediately necessary to prevent dispossession.


[MPC § 3.06(3)(d)(i)]  The defendant may use deadly force even if he does not believe that his or another person’s physical well-being is jeopardized.


This provision is broader than the common law in that the right to use deadly force is not predicated on the defendant’s right to safe and private habitation, but rather is founded on his right to possession of the dwelling. On the other hand, this provision does not authorize deadly force merely to prevent an unlawful entry into the home, as the common law originally permitted.


§ 10.03   Spring Guns


An increasing number of states now prohibit the use of a mechanical device designed to kill or seriously injure an intruder to protect property, even if the possessor would be justified in using deadly force in person.  The Model Penal Code bans the use of such devices as well. [MPC § 3.06(5)(a)]


Use of Force in Defense of Self, Other, or Property

Model Penal Code §§ 3.04-.07; New York Penal Law §§ 35.15-.25
LaVoie, People v., 155 Colo. 551,  395 P.2d 1001 (1964)
Peterson, United States v., 483 F.2d 1222 (D.C. Cir. 1973)
Ceballos, People v., 12 Cal.3d 470 (1974)
Martin v. Ohio, 480 U.S. 228 (1987) (burden of proof)
State v. Leidholm, 334 N.W.2d 811 (N.D. 1983) (battered woman syndrome)
People v. Torres, 128 Misc. 2d 129 (N.Y. S. Ct. 1985) (battered woman syndrome)
Kelly, State v., 97 N.J. 178 (1984) (battered woman syndrome)
Kelly, State v., 33 Wash. App. 541 (1982) (battered woman syndrome)
Weston v. State, 682 P.2d 1119 (Ak. 1984)
Bowens, State v., 108 N.J. 622, 532 A.2d 215 (1987)
Almodovar, People v., 62 N.Y.2d 126 (1984)
McManus, People v., 67 N.Y.2d 541 (1986)
People v. Goetz, 68 N.Y.2d 96 (1986)
Hagi, People v., 169 A.D.2d 203 (N.Y. App. Div. 1991)
People v. Petronio, 2002 N.Y. Misc. LEXIS 960 (Co. Ct. N.Y. 2002)
People v. Hernandez, 2002 N.Y. LEXIS 1623
People v. Bradley, 2002 N.Y. App. Div. LEXIS 8254
Coughlin, Anne, Excusing Women, 82 Cal. L. Rev. 1 (1994)





§ 11.01   Authorization to Restrain One’s Liberty; "Public Authority" Defense


[A]  By Police Officers – At common law, a police officer was authorized to make an arrest under these circumstances.


 1.)For a felony or for a misdemeanor, an arrest could be based upon "reasonable" or "probable" cause. [Draper v. United States, 358 U.S. 307, 310 n.3 (1959)]
 2.)Felony arrests could be made with or without an arrest warrant. [United States v. Watson, 423 U.S. 411 (1985)]
 3.)Warrantless misdemeanor arrests were valid only if the offense occurred in the officer’s presence.  However, in the absence of an emergency or consent, warrantless felony arrests in the home are unconstitutional. [Payton v. New York, 445 U.S. 573 (1980)]


[B]  By Private Persons – Private persons have common law authority to make "citizen arrests" for a felony, or for a misdemeanor involving a breach of the peace, [Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)] if: (1) the crime actually occurred; and (2) the private person reasonably believes that the suspect committed the offense. With misdemeanors, the offense must also occur in the arresting person’s presence.


§ 11.02   Crime Prevention; Non-deadly Force


[A]  Common and Statutory Law – In general, a police officer or private person is justified in using non-deadly force upon another if he reasonably believes that: (1) such other person is committing a felony, or a misdemeanor amounting to a breach of the peace; and (2) the force used is necessary to prevent commission of the offense.


[B]  Model Penal Code – A police officer or private person is justified in using force upon another if he believes that: (1) such other person is about to commit suicide, inflict serious bodily injury upon herself, or commit a crime involving or threatening bodily injury, damage to or loss of property, or a breach of the peace; and (2) the force is immediately necessary to prevent the commission of the aforementioned act.


§ 11.03   Crime Prevention; Deadly Force


[A]  Common and Statutory law – Deadly force may never be used in the prevention of a misdemeanor offense. Deadly force is permitted, however, in the prevention of a felony. A split of authority exists regarding the scope of the right to use deadly force in felony crime prevention.  The minority broadly permits a police officer or private person to use deadly force upon another if he reasonably believes that: (1) such other person is committing any felony (including nonviolent felonies); and (2) deadly force is necessary to prevent commission of the crime.  Most states, however, limit the right to use deadly force to the prevention of "forcible" or "atrocious" felonies.


[B]  Model Penal Code – A police officer or private person may not use deadly force to prevent the commission of a crime unless he believes that: (1) a substantial risk exists that the suspect will cause death or serious bodily injury to another person unless he prevents the suspect from committing the offense; and (2) use of deadly force presents no substantial risk of injury to bystanders. [MPC § 3.07(5)(a)(ii)(A)]


§ 11.04   Effectuation of an Arrest; Non-deadly Force


[A]  Common Law – Non-deadly force to effectuate an arrest is permissible by a police officer or private citizen.


[B]  Model Penal Code – A police officer or private person is justified in using force upon another to make or assist in making an arrest, or to prevent the suspect’s escape, if the defendant:


 1.)believes that force is immediately necessary to effectuate a lawful arrest or to prevent the suspect’s escape; and
 2.)makes known to such other person the purpose of the arrest; or
 3.)believes that such other person understands the purpose of the arrest or that notice cannot reasonably be provided. [MPC §§ 3.07(1), 3.07(2)(a), 3.07(3)]


§ 11.05   Effectuation of an Arrest; Deadly Force


[A]  Common Law


[1]  Police Officers  At early common law, police officers could use deadly force to apprehend a suspect even if such force was unnecessary.  Today, most states impose a "necessity" requirement.  Thus, a police officer is justified to use deadly force upon a suspect upon reasonable belief that: (1) the suspect committed a felony; and (2) such force is necessary to make the arrest or to prevent the suspect from escaping. Generally, the rule with regard to arrest applies to all felonies; however, some jurisdictions also limit this rule to forcible or atrocious felonies.


However, the rule has been modified and narrowed as a result of Tennessee v. Garner, [471 U.S. 1 (1985)].  Here, an officer in pursuit of a suspect was "reasonably sure" that the suspect was unarmed. The suspect began to climb the fence. After the officer called out "police, halt" and the suspect did not cease his flight, the officer shot him to prevent him from escaping, hitting him in the head and killing him.  Although the officer’s use of deadly force was justified under state law, the Supreme Court found that the exercise of deadly force here was unlawful since the suspect was apparently unarmed.


The Court held that a police officer violates the Fourth Amendment prohibition on unreasonable searches and seizures if he uses deadly force to effectuate an arrest, unless: (1) he "has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others"; and (2) such force is necessary to make the arrest or prevent escape. In regard to the necessity element, a warning, if feasible, must be given to the suspect before deadly force is employed. The first condition is satisfied "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm."


[2]  By Private Person – A private person may use deadly force, if reasonably necessary, to arrest or apprehend a felon, but in more limited circumstances than for police officers.  Generally, the circumstances that would justify use of force to apprehend a suspect by a private person include:


 1.)the offense must be a forcible felony;
 2.)the private person must notify the suspect of his intention to make the arrest;
 3.)the arresting party must be correct in his belief that the suspect actually committed the offense in question.  It is irrelevant if the mistake of fact is reasonable in such cases.


[B]  Model Penal Code – Deadly force may never be used by a private person, acting on his own, to make an arrest or to prevent a suspect’s escape. However, deadly force may be employed by a police officer, or a private person assisting someone he believes is a law enforcement officer, to make an arrest or to prevent the suspect’s escape if the arrest is for a felony and the officer:


 1.)believes that force is immediately necessary to effectuate a lawful arrest or to prevent the suspect’s escape;
 2.)makes known to the suspect the purpose of the arrest or believes that such other person understands the purpose of the arrest or that notice cannot reasonably be provided;
 3.)believes that the use of deadly force creates no substantial risk of harm to innocent bystanders; and either
 4a.)believes that the crime included the use or threatened use of deadly force; or
 4b.)believes that a substantial risk exists that the suspect will kill or seriously harm another if his arrest is delayed or if he escapes. [MPC § 3.07(2)(b)]


Law Enforcement

U.S. Constitution amend. 4
Model Penal Code § 3.07; New York Penal Law § 35.30
Garner, Tennessee v., 471 U.S. 1 (1985)
Pena, People v., 169 Misc. 2d 75 (N.Y. Sup. Ct. 1996)


§ 12.01   Generally


[A]  Nature of the Defense – Generally speaking, "necessity" is a residual justification defense, although it shares some characteristics with excuse defenses as well. It is a defense of last resort as it legitimizes technically illegal conduct that common sense, principles of justice, and/or utilitarian concerns suggest is justifiable, but which is not specifically addressed by any other recognized justification defense.


[B]  Requirements of the Defense – Approximately one-half of states now statutorily recognize a necessity defense. Generally speaking, a person is justified in violating a criminal law if the following six conditions are met:


 1.)The defendant must be faced with a clear and imminent danger.
 2.)There must be a direct causal relationship between the action and the harm to be averted.
 3.)There must be no effective legal way to avert the harm.
 4.)The harm that the defendant will cause by violating the law must be less serious than the harm he seeks to avoid.  The defendant’s actions are evaluated in terms of the harm that was reasonably foreseeable at the time, rather than the harm that actually occurred.
 5.)There must be no legislative intent to penalize such conduct under the specific circumstances.
 6.)The defendant must come to the situation with "clean" hands, i.e., he must not have wrongfully placed himself in a situation in which he would be forced to commit the criminal conduct.


[C]  Limitations on the rule – The availability of the necessity defense may be further limited to:


 1.)emergencies created by natural forces;
 2.)non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)]
 3.)protection of persons and property only, excluding for example, the protection of reputation or economic interests.


§ 12.02   Civil Disobedience


"Civil disobedience" is a nonviolent act, publicly performed and deliberately unlawful, for the purpose of protesting a law, government policy, or actions of a private body whose conduct has serious public consequences. The necessity defense rarely arises in cases of direct civil disobedience, where the goal generally is to have the protested law declared unconstitutional.


Indirect civil disobedience involves violation of a law that is not the object of the protest, e.g., violating trespass statutes to protest construction of a nuclear power plant or the performance of abortions at a clinic. While protesters often advocate that they should be entitled to a "political necessity" defense, courts consistently have held that necessity is not a defense to indirect civil disobedience.


§ 12.03   Model Penal Code


The necessity defense is broader under the Code than under common law and many non-Code-based statutes.  Under the Code, otherwise unlawful conduct is justified if:


 1.)the defendant believes that his conduct is necessary to avoid harm to himself or another;
 2.)the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and
 3.)there is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)]


Unlike common law, the Code does not require that the harm be imminent or that the defendant approached the situation with "clean hands."  Furthermore, the common law limitations regarding natural forces, homicide cases, and property and personal are inapplicable to the Code’s necessity defense.





§ 13.01   General Principle


Generally speaking, a person may be acquitted of any offense except murder if the criminal act was committed under the following circumstances:


 1.)Another person issued a specific threat to kill or grievously injure the defendant or a third party, particularly a near relative, unless he committed the offense;
 2.)The defendant reasonably believed that the threat was genuine;
 3.)The threat was "present, imminent, and impending" at the time of the criminal act;
 4.)There was no reasonable escape from the threat except through compliance with the demands of the coercer; and
 5.)The defendant was not at fault in exposing himself to the threat.


§ 13.02   Duress as a Defense to Homicide


The common law rule, expressly adopted by statute in some states, is that duress is not a defense to an intentional killing. A very few states recognize an "imperfect" duress defense, which reduces the offense to manslaughter.  Courts are split on the availability of the duress defense in felony-murder prosecutions.


§ 13.03   Model Penal Code


Duress is an affirmative defense to unlawful conduct by the defendant if: (1) he was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon his or another person; and (2) a person of reasonable firmness in his situation would have been unable to resist the coercion. [MPC § 2.09(1)]  The defense is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to coercion. If he negligently placed himself in such a situation, however, the defense is available to him for all offenses except those for which negligence suffices to establish culpability. [MPC § 2.09(2)].


The Code’s duress defense is broader than the common law in various respects. First, it abandons the common law requirement that the defendant’s unlawful act be a response to an imminent deadly threat. Second, the defense is one of general applicability, so the defense may be raised in murder prosecutions.


The Code defense is similar to the common law in two significant ways. First, the defense is limited to threats or use of "unlawful" force; therefore, it does not apply to coercion emanating from natural sources.  Second, in conformity with the common law, the Code does not recognize the defense when any interest other than bodily integrity is threatened.



Model Penal Code § 2.09; New York Penal Law § 40.00
Brown, People v., 68 A.D.2d 503 (N.Y. App. Div. 1979) (duress vs. necessity)
Calvano, People v., 30 N.Y.2d 199 (1972) (duress vs. entrapment)
St. Clair, State v., 262 S.W.2d 25 (Mo. 1953)
Toscano, State v., 74 N.J. 421,  378 A.2d 755 (1977)
Unger, People v., 66 Ill.2d 333,  362 N.E.2d 319,  5 Ill.Dec. 848 (1977)
Bailey, United States v., 444 U.S. 394, 100 S. Ct. 624 (1980)





§ 14.01   Voluntary Intoxication


Voluntary intoxication does not excuse criminal conduct; however, in limited circumstances, intoxication may negate the necessary state of mind for a given offense and thus prove exculpatory.  Intoxication resulting from alcoholism or drug addiction is considered voluntary under common law principles.


[A]  Mens rea Defense – While there are several approaches to evaluating the mens rea portion of criminal activity involving an intoxicated defendant, the most common approach distinguishes between general-intent and specific-intent crimes.  Under this common law approach, voluntary intoxication is not a defense to general-intent crimes.  Voluntary intoxication is a defense to specific intent crimes.


[B]  Special Rule for Homicide – Two states, Virginia and Pennsylvania, limit the defense of voluntary intoxication to first- degree murder prosecutions. In states that recognize the defense in all specific-intent crimes, if the crime of "murder" is divided into degrees, a defendant may generally introduce evidence that his intoxication prevented him from being able to form the requisite state of mind for first-degree murder.


[C]  Voluntary Act – Where a defendant’s intoxication was so severe as to render him unconscious at the time of the commission of the crime, some courts have barred a defense based on unconsciousness if such condition resulted from the voluntary consumption of alcohol or drugs. Others courts allow the defendant to argue that the criminal act was not a voluntary one due to his unconscious state, but only in defense to specific-intent offenses.


[D]  Intoxicated-Induced Insanity – The common law does not recognize a defense of temporary insanity based on intoxication where the defendant’s intoxication was voluntary.  Some jurisdictions do recognize a defense based on "fixed" insanity, a condition which results from long-term use of drugs or alcohol


§ 14.02   Involuntary Intoxication


[A]  Definition – Intoxication is "involuntary" if the defendant is not to blame for becoming intoxicated.  It may result from:


· coerced intoxication;
· intoxication by innocent mistake as to the nature of the substance being consumed;
· unexpected intoxication from a prescribed medication provided the defendant did not purposely take more than the prescribed dosage; or
· "pathological intoxication," a temporary psychotic reaction, often manifested by violence, which is triggered by consumption of alcohol by a person with a pre-disposing mental or physical condition, e.g., temporal lobe epilepsy, encephalitis, or a metabolic disturbance. The defense only applies if the defendant had no reason to know that he was susceptible to such a reaction.


[B]  Availability of the Defense – Under common law, a defendant found to have been involuntarily intoxicated may avail himself of the defense of temporary insanity.  Furthermore, one who committed an offense while involuntarily intoxicated can otherwise seek acquittal by asserting the mens rea defense.


§ 14.03   Model Penal Code


[A]  General Rule – Model Penal Code § 2.08(4)–(5) distinguishes three types of intoxication:


 1.)voluntary ("self-induced") intoxication;
 2.)pathological intoxication; and
 3.)involuntary ("non-self-induced") intoxication.


[B]  Exculpation Based on Intoxication


[1]  Mens Rea DefenseAny form of intoxication is a defense to criminal conduct if it negates an element of the offense. [MPC § 2.08(1)]  Since the Code does not distinguish between "general intent" and "specific intent" offenses, the mens rea defense is broadly applied, with one exception.  In the case of crimes defined in terms of recklessness, a person acts "recklessly" as to an element of the crime if, as the result of the self-induced intoxication, he was not conscious of a risk of which he would have been aware had he not been intoxicated. [MPC § 2.08(2)]


[2]  InsanityPathological and involuntary intoxication are affirmatives defenses, if the intoxication causes the defendant to suffer from a mental condition comparable to that which constitutes insanity under the Code. [MPC § 2.08(4)]



Model Penal Code § 2.08; New York Penal Law §§ 15.05(3), 15.25
People v. Register, 60 N.Y.2d 270 (1983) (depraved indifference murder)
People v. Westergard, 497 N.Y.S.2d 65 (App. Div. 1985) (diminished capacity)
Cameron, State v., 104 N.J. 42 (1986) (voluntary intoxication)
Sette, State v., 259 N.J. Super. 156 (1992) (involuntary vs. pathological intoxication)
Egelhoff, Montana v., 518 U.S. 37 (1996)




§ 15.01   Legal Tests to Determine "Insanity"


"Insanity" is a legal term that presupposes a medical illness or defect but is not synonymous with "mental illness," "mental disorder," and "mental disease or defect."  "Mental illness" is a more encompassing term than "insanity," and thus, a person can be mentally ill – medically speaking – without legally being insane.  Five tests of insanity have been applied at one time or another.


[A]  M’Naghten Test – The M’Naghten rule focuses exclusively on cognitive disability. Under this rule, a person is insane if, at the time of the criminal act, he was laboring under such a defect of reason, arising from a disease of the mind, that he (1) did not know the nature and quality of the act that he was doing; or (2) if he did know it, he did not know that what he was doing was wrong.


This test requires total cognitive disability and does not allow for degrees of incapacity and nor does it recognize volitional incapacity in which a person is aware that conduct is wrong yet cannot control his behavior. 


[B]  "Irresistible Impulse" Test – Some jurisdictions have broadened the scope of M’Naghten to include mental illnesses that affect volitional capacity.  Generally speaking, a person is insane if, at the time of the offense:


 1.)he acted from an "irresistible and uncontrollable impulse";
 2.)he was unable to choose between the right and wrong behavior;
 3.)his will was destroyed such that his actions were beyond his control.


[C]  Model Penal Code Test – The Model Penal Code provides that a person is not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:


 1.)appreciate the "criminality" (or "wrongfulness") of his conduct; or
 2.)to conform his conduct to the requirements of the law.


This test does not require total mental incapacity.


[D]  The Product (Durham) Test – This rule, now defunct , provided that a defendant’s criminal behavior may be excused if he was suffering from a mental disease or defect at the time of the offense and the criminal conduct was the product of the mental disease or defect.


[E]  Federal Test – In 1984, Congress enacted a statutory definition of insanity applicable to federal criminal trials. [18 U.S.C. § 17(a) (2000)] The federal law provides that a defendant may be excused based on insanity if he proves by clear and convincing evidence that, at the time of the offense, as the result of a severe mental disease or defect, he was unable to appreciate: (1) the nature and quality of his conduct; or (2) the wrongfulness of his conduct.  This test requires complete cognitive incapacity.


§ 15.02   Effect of an Insanity Acquittal


[A]   Mental Illness Commitment Procedures


[1]  Automatic Commitment – In many states, a person found "not guilty by reason of insanity" [NGRI] is automatically committed to a mental facility on the basis of the verdict. Under automatic-commitment laws, the NGRI-acquittee is not entitled to a hearing to determine whether he continues to suffer from a mental illness, or to determine whether his institutionalization is necessary for his protection or for that of society.


[2]  Discretionary Commitment – In some jurisdictions, commitment of an insanity-acquittee is not automatic.  Typically, however, the trial judge has authority to require a person found NGRI to be detained temporarily in a mental facility for observation and examination, in order to determine whether he should be committed indefinitely.


[B]  Release After Commitment for Mental Illness


[1]  Criteria for Release – An insanity-acquittee may be detained as long as she is both mentally ill and dangerous to herself or others. [Foucha v. Louisiana, 504 U.S. 71 (1992)].


[2]  Length of Confinement – An insanity-acquittee is committed for as long as necessary until she meets the criteria for release.  She may remain in a mental hospital for a longer period of time than she would have served in a prison had she been convicted of the crime that triggered her commitment. [Jones v. United States, 463 U.S. 354, 370 (1983)]


[C]  Sexual Predator Laws – More than fifteen states have enacted highly controversial "sexual predator" statutes which provide for commitment and treatment of sexual violators, defined generally as persons convicted of or charged with a sexually violent offense and who suffer from a mental abnormality or personality disorder which makes further sexual predatory acts likely. To invoke the law, a prosecutor typically files a petition in a state court seeking the individual’s involuntary commitment.  If there is probable cause to believe that the person is a sexual predator, the individual is transferred to a mental facility for evaluation, after which a full hearing is held.  If the court determines beyond a reasonable doubt that the individual is a sexually violent predator, he is committed until he deemed safe to be released into the community.


§ 15.03   Abolition of the Insanity Defense


Four states – Idaho, Kansas, Montana, and Utah – have abolished the insanity defense, but permit a defendant to introduce evidence of his mental disease or defect in order to rebut the prosecution’s claim that he possessed the requisite mental state. 


§ 15.04   "Guilty But Mentally Ill"


A number of states have adopted an alternative verdict, "guilty but mentally ill" [GBMI]. In all but two of these states, the insanity defense has been retained.  In these states, the jury returns a NGRI verdict if the defendant was insane at the time of the crime; it returns a GBMI verdict if he is guilty of the offense, was sane at the time of the crime, but is "mentally ill," as the latter term is defined by statute, at the time of trial.



Model Penal Code § 4.01; New York Penal Law § 40.15
M'Naghten's Case, 1 C. &  K. 130; 4 St. Tr. N.S. 847 (1843)
Johnson v. State, 38 So. 182 (Ala. 1905)
People v. Schmidt, 216 N.Y. 324 (1915) (M'Naghten test)
Leland v. Oregon, 343 U.S. 790 (1952) (burden of proof)
People v. Kohl, 72 N.Y.2d 191 (1988) (burden of proof)
Smith v. United States, 36 F.2d 548 (D.C. Cir. 1929) (irresistible impulse test adopted)
Miller v. Overholser, 206 F.2d 415 (D.C. Cir. 1953) (commitment of "sexual psychopaths")
Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (Durham test established)
Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967) (Durham test doubted)
United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) (en banc) (Durham test abandoned for Model Penal Code test)
Insanity Defense Reform Act of 1984 (Model Penal Code test abandoned by Congress)
18 U.S.C. § 17 (Insanity defense)
18 U.S.C. ch. 313 (Offenders with mental disease or defect)
Shannon v. United States, 512 U.S. 573 (1994) (interpreting Insanity Defense Reform Act of 1984)
Maik, State v., 60 N.J. 203,  287 A.2d 715 (1972)
Smith v. State, 614 P.2d 300 (Alaska 1980)

§ 16.01   Generally


"Diminished capacity" refers to a defendant’s abnormal mental condition, short of insanity.  There are two forms of diminished capacity:  mens rea diminished capacity and "partial responsibility" diminished capacity.


§ 16.02   Mens rea Defense


[A]  General Rule – Evidence of mental abnormality is not offered by the defendant to partially or fully excuse his conduct, but rather as evidence to negate an element of the crime charged, almost always the mens rea element.  In such circumstances, diminished capacity thus functions as a failure-of-proof defense.


[B]  Scope of Defense – States are divided regarding the extent to which evidence of diminished capacity may be introduced for the purpose of negating the mens rea of an offense. States that follow the Model Penal Code [§ 4.02(1)] permit such evidence, when relevant, to negate the mens rea of any crime. Other states limit the admissibility of such evidence to some or all specific-intent offenses. A third group bars "diminished capacity" evidence in prosecutions of all offenses.  And some jurisdictions bar "diminished capacity" evidence in all prosecutions whether the crime at issue is "specific intent" or "general intent."


§ 16.03   "Partial Responsibility" Defense


[A]  General Rule – This form of diminished capacity partially excuses or mitigates a defendant’s guilt even if he has the requisite mens rea for the crime.  It is recognized now in only a few states, and only for the crime of murder, to mitigate the homicide to manslaughter.


[B]  The Model Penal Code Approach – The Model Penal Code provides that a homicide that would otherwise constitute murder is manslaughter if it is committed as the result of "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse." The reasonableness of the defendant’s explanation or excuse for the "extreme mental or emotional disturbance" (EMED) is "determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be."[MPC § 210.3(1)(b)]  At least two states appear to recognize the latter version of the defense.


Diminished Capacity

Model Penal Code § 4.02; New York Penal Law (not codified)
People v. Westergard, 497 N.Y.S.2d 65 (App. Div. 1985)
State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987)





§ 17.01   Common Law Rules


[A]  General Approach – Many states follow the Model Penal Code in requiring proof of mens rea for every element of the offense.  Nevertheless, the common law’s two approaches to mistakes—depending on whether the offense charged is characterized as general-intent or specific-intent—has endured.


If the crime is one of strict liability, a mistake of fact is irrelevant.  Otherwise, the first step in analyzing a mistake-of-fact claim in a jurisdiction that follows common law doctrine is to determine whether the nature of the crime of which the defendant has been charge is specific-intent or general-intent.


[B]  Specific-Intent Offenses – A defendant is not guilty of an offense if his mistake of fact negates the specific-intent portion of the crime, i.e., if he lacks the intent designated in the definition of the offense, e.g., "knowingly," "negligently," "recklessly."


[C]  General-Intent Offenses


[1]  Ordinary Approach: Reasonableness – The ordinary rule is that a person is not guilty of a general-intent crime if his mistake of fact was reasonable, but he is guilty if his mistake was unreasonable.


[2]  Moral-Wrong Doctrine – On occasion, courts apply the "moral wrong" doctrine, under which one can make a reasonable mistake regarding an attendant circumstance and yet manifest a bad character or otherwise demonstrate worthiness of punishment.  The rule is generally that there is no exculpation for mistakes where, if the facts had been as the defendant believed them to be, his conduct would still be immoral.


[3]  Legal-Wrong Doctrine – A less extreme alternative to the moral-wrong doctrine is the "legal-wrong doctrine."  That rule provides for no exculpation for mistakes where, if the facts were as the defendant thought them to be, his conduct would still be "illegal."  Often this means that a defendant possessed the mens rea for committing a lesser offense, but the actus reus was associated with a higher offense.  Under this doctrine, the defendant is guilty of the higher offense in such circumstances.


§ 17.02   Model Penal Code


[A]  General Rule – Section 2.04(1) provides that a mistake is a defense if it negates the mental state required to establish any element of the offense.


[B]  Exception to the Rule – The defense of mistake-of-fact is not available if the defendant would be guilty of another offense, had the circumstances been as he supposed.  In such cases, contrary to the common law, the Code only permits punishment at the level of the lesser offense. [MPC § 2.04(2)]



Model Penal Code § 3.09; New York Penal Law § 15.20
State v. Leidholm, 334 N.W.2d 811 (N.D. 1983)
People v. Goetz, 68 N.Y.2d 96 (1986)



§ 19.01   Overview to Inchoate Conduct


Activity that occurs after the formation of the mens rea but short of attainment of the criminal goal is described as "inchoate"imperfect or incompleteconduct. The most common of these offenses are attempt, solicitation, and conspiracy.  Inchoate crimes are typically treated as a lesser offense than the substantive crime.


§ 19.02   Model Penal Code


[A]  Punishment – In a significant departure from common law tradition, the Code provides for punishment of the inchoate offenses at the same level as the substantive crime, with the exception of crimes that carry a maximum penalty of life imprisonment ("felonies of the first degree"). [MPC § 5.05(1)]  An attempt, solicitation, or conspiracy to commit one of these crimes constitutes a felony of the second degree. [MPC § 5.05(1)]


[B]  Special Mitigation – The Code grants the trial judge authority to dismiss a prosecution of an inchoate offense, or to impose a sentence for a crime of a lower degree than is otherwise allowed, if the defendant’s conduct was so inherently unlikely to result in a crime that neither he nor his conduct represents a danger to society justifying his conviction and punishment at ordinary level. [MPC § 5.05(2)]


Inchoate Crimes

Model Penal Code art. 5; New York Penal Law arts. 100-115
Wechsler, Herbert et al., The Treatment of Inchoate Crimes in the Model Penal Code I & II, 61 Colum. L. Rev. 571, 957 (1961)
Soble, Nathan R., The Anticipatory Offenses in the New Penal Law, 32 Brook. L. Rev. 257 (1966)




§ 20.01   Attempt, Generally


A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense.  Criminal attempts are of two varieties: "complete" (but "imperfect"); and "incomplete." A complete, but imperfect, attempt occurs when the defendant performs all of the acts that he set out to do, but fails to attain his criminal goal.  In contrast, an incomplete attempt occurs when the defendant does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing, e.g., a police officer arrives before completion of the attempt.


§ 20.02   Mens rea of Criminal Attempts


[A]  General Rule – The defendant must intentionally commit the acts that constitute the actus reus of an attempt, i.e., acts that bring him in proximity to commission of a substantive offense or which otherwise constitute a substantial step in that direction, and  he must perform these acts with the specific intention of committing the target crime. An attempt is a specific-intent offense, even if the substantive crime is a general-intent offense.


[B]  "Result" Crimes – When the target crime is a "result" crime, the general rule is that a person is not guilty of an attempt unless his actions in furtherance of the target crime are committed with the specific purpose of causing the unlawful result. 


§ 20.03   Actus reus of Criminal Attempts


Courts have developed a number of tests to determine the point at which a defendant passes beyond the preparation stage and consummates the criminal attempt.


 1.)"Last act" testan attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion.
 2.)"Physical proximity" testthe defendant’s conduct need not reach the last act but must be "proximate" to the completed crime.
 3.)"Dangerous proximity" testan attempt occurs when the defendant’s conduct is in "dangerous proximity to success," or when an act "is so near to the result that the danger of success is very great."
 4.)"Indispensable element" testan attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan.
 5.)"Probable desistance" testan attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime.
 6.)"Unequivocality" (or res ipsa loquitur) testan attempt occurs when a person’s conduct, standing alone, unambiguously manifests his criminal intent.


§ 20.04   Defense of Impossibility


[A]  General Rule – At common law, legal impossibility is a defense; factual impossibility is not.  However, today, most jurisdictions no longer recognize legal impossibility as a defense.


[B]  Factual Impossibility – "Factual impossibility" exists when a person’s intended result constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person.


[C]  "Inherent" Factual Impossibility – Although largely academic, the doctrine of inherent factual impossibility has been recognized as a statutory defense in at least one state (Minnesota). Where recognized, the defense applies if the method to accomplish the crime was one that a reasonable person would view as inadequate to accomplish the criminal objective.


[D]  Pure Legal Impossibility – "Pure legal impossibility" arises when the law does not proscribe the result that the defendant seeks to achieve.


[E]  Hybrid Legal Impossibility – Hybrid legal impossibility (or "legal impossibility") exists if the defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, e.g., receiving unstolen property under the belief that such property was stolen, or shooting a corpse believing it is alive.  Today, most states have abolished the defense of hybrid legal impossibility on the theory that a defendant’s dangerousness is plainly manifested in such cases.


§ 20.05   Defense: Abandonment


Many courts do not recognize the defense of abandonment.  Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose.  Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself.


§ 20.06   Model Penal Code


[A]  Elements of the Offense – Generally speaking, a criminal attempt under the Code contains two elements: (1) the purpose to commit the target offense; and (2) conduct constituting a "substantial step" toward the commission of the target offense.


[B]  Mens rea – In general, a person is not guilty of a criminal attempt unless it was his purpose, i.e., his conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense.  A person is likewise guilty of an attempt to cause a criminal result if he believes that the result will occur, even if it were not his conscious object to cause it. [MPC §5.01(1)(b)]


The mens rea of "purpose" or "belief" does not necessarily encompass the attendant circumstances of the crime. For these elements, it is sufficient that the defendant possesses the degree of culpability required to commit the substantive offense.


[C]  Actus reus – The Code shifts the focus of attempt law from what remains to be done, i.e., the defendant’s proximity to consummation of the offense, to what the defendant has already done. Subsection 5.01(1)(c) provides that, to be guilty of an offense, a defendant must have done or omitted to do something that constitutes a "substantial step in a course of conduct planned to culminate in his commission of the crime."


Section 5.01(2) provides a list of recurrent factual circumstances in which a defendant’s conduct, if strongly corroborative of his criminal purpose, "shall not be held insufficient as a matter of law," including lying in wait; searching for or following the contemplated victim of the crime; reconnoitering the contemplated scene of the crime; unlawful entry into a structure or building in which the crime will be committed; and possession of the materials to commit the offense, if they are specially designed for a criminal purpose.


[D]  Attempt to Aid – Under § 5.01(3), a person may be convicted of a criminal attempt, although a crime was neither committed nor attempted by another, if:


 1.)the purpose of his conduct is to aid another in the commission of the offense; and
 2.)such assistance would have made him an accomplice in the commission of the crime under the Code’s complicity statute if the offense had been committed or attempted.


[E]  Hybrid Legal Impossibility – There is no defense of hybrid legal impossibility under MPC §5.01(1).


[F]  Pure Legal Impossibility – The Code does not expressly address the defense of pure legal impossibility.


[G]  Renunciation (Abandonment) – Under the Code, a person is not guilty of an attempt if: (1) he abandons his effort to commit the crime or prevents it from being committed; and (2) his conduct manifests a complete and voluntary renunciation of his criminal purpose. [MPC § 5.01(4)]  Under this provision, renunciation is not complete if it is wholly or partially motivated "by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim" or if motivated by "circumstances . . . that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose."



Model Penal Code § 5.01; New York Penal Law art. 110
Murray, People v., 14 Cal. 159 (1859)
Peaslee, Commonwealth v., 177 Mass. 267 (1901)
Jaffe, People v., 185 N.Y. 497,  78 N.E. 169 (1906)
Rizzo, People v., 246 N.Y. 334 (1927)
McQuirter v. State, 36 Ala.App. 707,  63 So.2d 388 (1953)
Booth v. State, 398 P.2d 863 (Ct. Crim. App. Okla. 1964) (impossibility)
Stewart v. State, 85 Nev. 388 (1969) (renunciation)
Staples, People v., 6 Cal.App.3d 61, 85 Cal.Rptr. 589 (1970) (preparation)
Lyerla, State v., 424 N.W.2d 908 (S.D. 1988)
Henley, Commonwealth v., 504 Pa. 408 (1984) (impossibility)
Donton, Commonwealth v., 439 Pa. Super. 406 (1995)
Clarke, State v., 198 N.J. Super. 219 (1985)
Dlugash, People v., 41 N.Y.2d 725,  363 N.E.2d 1155 (1977)
People v. Campbell, 72 N.Y.2d 602 (1988) (impossibility)
Coleman, People v., 74 N.Y.2d 381 (1989) (impossibility)
People v. Esquilin, 552 N.Y.S.2d 953 (App. Div. 1990) (impossibility)
People v. Miller, 87 N.Y.2d 211 (1995) (impossibility)
Sayre, Francis Bowes, Criminal Attempts, 41 Harv. L. Rev. 821 (1928)




§ 21.01   General Principles


[A]  Actus reus – The actus reus of a solicitation takes place when one person invites, requests, commands, hires, or encourages another to commit a particular offense. For a solicitation to occur, neither the solicitor nor the solicited party needs to perform any act in furtherance of the substantive crime. The solicitation is complete upon communication of the solicitation to another.


[B]  Mens rea – Common law solicitation is a specific-intent crime. A person is not guilty of solicitation unless he intentionally commits the actus reus of the inchoate offense, i.e., he intentionally invites, requests, commands, hires, or encourages another to commit a crime, with the specific intent that the other person consummate the target crime.


[C]  Relationship of the Solicitor to the Solicited Party – At common law, no solicitation occurs if the solicitor intends to commit the substantive offense himself, but requests assistance by another.


§ 21.02   Model Penal Code


[A]  Generally – The Model Penal Code provides that a person is guilty of solicitation to commit a crime if:


 1.)his purpose is to promote or facilitate the commission of a substantive offense; and
 2.)with such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission. [MPC § 5.02(1)]


Prior to the enactment of the Code, most state penal statutes did not provide for solicitation generally and instead proscribed solicitation of specific offenses.  As a result of the Code’s influence, many states today have solicitation statutes that apply to all crimes, or alternatively all felonies.


Unlike at common law, under the Code, the relationship of the solicitor to the solicited party need not be that of accomplice to perpetrator. 


[B]  Renunciation – The Model Code establishes a defense to solicitation of "renunciation of criminal purpose." A person is not guilty of solicitation if he:


 1.)completely and voluntarily renounces his criminal intent; and
 2.)either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime.[MPC § 5.02(3)]



Model Penal Code § 5.02; New York Penal Law art. 100
Lubow, People v., 29 N.Y.2d 58 (1971)
Wilson, United States v., 565 F. Supp. 1416 (S.D.N.Y. 1983) (incidental exemption)
Benson v. Super. Ct., 57 Cal.2d 240 (1962)




§ 22.01    General Principle


Generally speaking, a conspiracy is an agreement by two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means.


[A]   The Agreement


[1]  Common law – At common law, a conspiracy need not be based on an express agreement.  Furthermore, an agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature. [Blumenthal v. United States, 332 U.S. 539, 557–58 (1947)]  Moreover, a "conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense."[Salinas v. United States, 522 U.S. 52, 63 (1997)] It is enough that each person agrees, at a minimum, to commit or facilitate some of the acts leading to the substantive crime.


[2]  Model Penal Code – Four types of agreement fall within the definition of conspiracy.  A person is guilty of conspiracy if he agrees to:


 1.)commit an offense;
 2.)attempt to commit an offense;
 3.)solicit another to commit an offense; or
 4.)aid another person in the planning or commission of the offense.


[B]   Overt Act


[1]  Common and Statutory Law – A common law conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved. [United States v. Shabani, 513 U.S. 10, 13 (1994)]


Today, many statutes require proof of the commission of an overt act in furtherance of the conspiracy.  In jurisdictions requiring an overt act, the act need not constitute an attempt to commit the target offense. Instead, any act (and perhaps an omission), no matter how trivial, is sufficient, if performed in pursuance of the conspiracy. A single overt act by any party to a conspiracy is sufficient basis to prosecute every member of the conspiracy, including those who may have joined in the agreement after the act was committed.  Most states apply the overt-act rule to all crimes.


[2]  Model Penal Code – The Code’s requirement of proof of an overt act only applies to cases involving a misdemeanor or a felony of the third degree.  [MPC § 5.03(5)]


[C]   "Plurality" Requirement


[1]  Common Law – Common law conspiracy requires proof that at least two persons possessed the requisite mens rea of a conspiracy.  For example, no conspiracy conviction is possible if one of the two persons is an undercover agent feigning agreement, or lacks the capacity to form the agreement due to mental illness.


[2]  Model Penal Code; Majority Rule – The Model Code departs significantly from the common law by establishing a unilateral approach to conspiracy liability. The Code focuses on the culpability of the defendant whose liability is in issue, rather than on that of the larger conspiratorial group. Specifically, the Code provides, "A person is guilty of conspiracy with another person" if "he agrees with such other person" to commit an offense. The unilateral approach has been adopted in most states.


§ 22.02   Mens rea


[A]   In General


[1]  Common law – Common law conspiracy is a specific-intent offense, requiring that two or more persons: (1) intend to agree; and (2) intend that the object of their agreement be achieved. Absence of either intent renders the defendants’ conduct non-conspiratorial.  However, courts are divided over the interpretation of "intent."  Some require that the parties have the unlawful result as their purpose and others allow conviction for conspiracy based on the parties’ mere knowledge that such result would occur from their conduct.


[2]  Model Penal Code – The Code specifically provides that the conspiratorial agreement must be made "with the purpose of promoting or facilitating" the commission of the substantive offense. Thus, in jurisdictions following the Code, a conspiracy does not exist if one is aware of, but fails to share, another person’s criminal purpose.


[B]   Corrupt-Motive Doctrine – Some common law jurisdictions apply what has come to be known as the "corrupt motive doctrine." This doctrine states that in addition to the usual mens rea requirements of conspiracy (i.e., intent to agree, and intent to commit the substantive offense), the parties to a conspiracy must also have a corrupt or wrongful motive for their actions.


The Model Penal Code does not recognize the corrupt-motive doctrine.


§ 22.03   Parties to a Conspiracy


[A]  Liability of Parties for Substantive Offenses – Each party to a conspiracy is liable for every offense committed by every other conspirator in furtherance of the unlawful agreement. Thus, an important issue in conspiracy trials may be to determine the precise confines of a conspiratorial enterprise. 


[B]  Overt-Act Requirement – The structure of a conspiracy is critical in jurisdictions recognizing an overt-act requirement. In these jurisdictions, an act of one conspirator in furtherance of the agreement renders a prosecution permissible against every other party to the same agreement.


[C]  Common Law Analysis


[1]  In General – To be regarded as a co-conspirator, a person does not need to know the identity, or even of the existence, of every other member of the conspiracy, nor must he participate in every detail or event of the conspiracy. However, to be a co-conspirator he must have a general awareness of the scope and the objective of the criminal enterprise.


[2]  Wheel Conspiracies – A "wheel" conspiracy is characterized by a central figure or group ("the hub") that engages in illegal dealings with other parties ("the spokes") and there exists a shared criminal purpose among all spokes and the hub.  Parallel but separate objectives between similarly situated people do not make a wheel conspiracy (instead this would constitute multiple chain conspiracies).


In Kotteakos v. United States, 328 U.S. 750 (1946), a broker obtained fraudulent loans from the government for thirty-one people.  All were tried under a theory of "wheel" conspiracy.  However, evidence at trial demonstrated that the loan recipients were part of eight or more independent groups, none of which had any connection with any other group except that each used the same broker.  Absent a single shared objective, the parties constituted eight or more chain conspiracies and not a single wheel conspiracy.


[3]  Chain Conspiracies – Chain conspiracies ordinarily involve a criminal enterprise that cannot thrive unless each link successfully performs its part in the arrangement.  In Blumenthal v. United States, 332 U.S. 539 (1947), the owner of a liquor wholesale agency distributed whiskey through two men, Weiss and Goldsmith, who arranged with Feigenbaum and Blumenthal to sell the whiskey to local tavern owners at a price in violation of the law.  The Supreme Court held that the prosecutor’s charge of a single conspiracy was proper, finding that each salesman "by reason of [his] knowledge of the plan’s general scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey."


An opposite conclusion was reached in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938).  Peoni sold a small quantity of counterfeit money to Regno, who in turn sold the money to Dorsey, who passed the money in commerce to innocent persons.  No common interest was found between Peoni and Dorsey, and thus the court concluded that there existed two independent conspiracies, one between Peoni and Regno and another between Regno and Dorsey.


[D]  Model Penal Code – In addition to §5.03(1), which sets forth a unilateral approach to conspiracy, §5.03(2) provides that if a person "knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime."


The Model Penal Code provides that a person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are:


 1.)part of the same agreement; or
 2.)part of a continuous conspiratorial relationship. [MPC § 5.03(3)]


§ 22.04   Relationship to Target Offense


[A]   General rule


[1]  Common Law and Non-Model Penal Code Statutes – At common law, a conspiracy to commit a felony or a misdemeanor was a misdemeanor.  Under modern statutory law, the seriousness of the crime of conspiracy varies.  Some states continue to treat all conspiracies, regardless of the seriousness of their objectives, as misdemeanors. More often, however, the sanction for conspiracy corresponds to the contemplated crime so that conspiracy to commit a felony is graded as a felony, and conspiracy to commit a misdemeanor is a misdemeanor. In most states, a conspiracy to commit a felony is punished less severely than the target offense.


[2]  Model Penal Code – As with other inchoate offenses, the Model Penal Code sanctions a conspiracy to commit any crime other than a felony of the first degree at the same level as the target offense.  [MPC § 5.05(1)]  If a conspiracy has multiple objectives, e.g., to rape and to steal, the conspiracy is graded on the basis of the most serious target offense.


[B]   Punishment When the Target Offense is Committed


[1]  Common Law – Unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy. [Callanan v. United States, 364 U.S. 587, 593–94 (1961)] 


[2]  Model Penal Code – The Code merges a conspiracy with the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted.[MPC§ 1.07(1)(b)]


§ 22.05   Defenses


[A]  Impossibility


[1]  Common Law – The majority, but not universal, rule is that neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy.


[2]  Model Penal Code – The Model Penal Code does not recognize a defense of factual or hybrid legal impossibility in conspiracy cases. [MPC § 5.03(1)]


[B]  Abandonment


[1]  Common Law – The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions, once an overt act is committed in furtherance of a criminal objective. However, if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former co-conspirators if he communicated his withdrawal to each co-conspirator.


[2]  Model Penal Code – The Model Code’s abandonment defense to the crime of conspiracy is more onerous than that of the common law as it requires the conspirator to not only renounce his criminal purpose but to also thwart the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of his criminal intent.


[C]  Wharton’s Rule – An agreement by two persons to commit an offense that by definition requires the voluntary concerted criminal participation of two persons – e.g., adultery, bigamy, incest, receipt of a bribe – cannot be prosecuted as a conspiracy.  Wharton’s Rule does not apply if more than the minimum number of persons necessary to commit an offense agree to commit the crime or if the two persons involved in the conspiracy are not the two people involved in committing the substantive offense.


The Model Penal Code does not recognize Wharton’s Rule.


[D]   Legislative-Exemption Rule


[1]  Common Law – A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime.


[2]  Model Penal Code – Unless the legislature otherwise provides, a person may not be prosecuted for conspiracy to commit a crime under the Model Code if he would not be guilty of the consummated substantive offense: (1) under the law defining the crime; or (2) as an accomplice in its commission. A person is not guilty as an accomplice in the commission of an offense if he was the victim of the prohibited conduct, or if his conduct was "inevitably incident to its commission." [MPC § 2.06(6)(a)–(b)]


Model Penal Code § 5.03; New York Penal Law arts. 105, 460
Kemp, State v., 126 Conn. 60 (1939)
Pinkerton, United States v., 328 U.S. 640 (1946)
Callanan v. United States, 364 U.S. 587 (1961)
McGee, People v., 49 N.Y.2d 48 (1979)
Berkowitz, People v.,  50 N.Y.2d 333 (1980) (acquittal of co-conspirator)
Lauria, People v., 251 Cal.App.2d 471, 59 Cal.Rptr. 628 (1967)
Griffin v. State, 248 Ark. 1223,  455 S.W.2d 882 (1970)
Verive, State v., 128 Ariz. 570,  627 P.2d 721 (1981)
Sayre, Francis Bowes, Criminal Conspiracy, 35 Harv. L. Rev. 393 (1922)




§ 23.01   General Principles


[A]  Common law – One is an accomplice in the commission of an offense if he intentionally assists another to engage in the conduct that constitutes the crime. Accomplice activity may include aiding, abetting, encouraging, soliciting, advising, and procuring the commission of the offense.


Accomplice liability is derivative in nature. In general, the accomplice may be convicted of any offense committed by the primary party with the accomplice’s intentional assistance.  Most jurisdictions extend liability to any other offense that was a natural and probable consequence of the crime solicited, aided or abetted.


[B]  Model Penal Code – The Code rejects the common law natural-and-probable-consequences rule. Thus, an accomplice may only be held liable under the Code for acts that he purposefully commits.


§ 23.02   Parties to the Complicity


[A]  Principal in the First Degree – A "principal in the first degree" is one who, with the mens rea required for the commission of the offense: (1) physically commits the acts that constitute the offense; or (2) commits the offense by use of an "innocent instrumentality" or "innocent human agent."  The innocent-instrumentality rule provides that a person is the principal in the first degree if, with the mens rea required for the commission of the offense, he uses a non-human agent (e.g., a trained dog) or a non-culpable human agent to commit the crime.


[B]  Principal in the Second Degree – A "principal in the second degree" is one who intentionally assisted in the commission of a crime in the presence, either actual or constructive, of the principal in the first degree. A person is "constructively" present if he is situated in a position to assist the principal in the first degree during the commission of the crime, e.g., serving as a "lookout" or "getaway" driver outside a bank that the principal in the first degree robs.


[C]  Accessory Before the Fact – An "accessory before the fact" is one who is not actually or constructively present when the crime is committed; often such person solicits, counsels, or commands (short of coercing) the principal in the first degree to commit the offense.


[D]  Accessory After the Fact – An "accessory after the fact" is one who, with knowledge of another’s guilt, intentionally assists the him to avoid arrest, trial, or conviction. The conduct of the accessory after the fact occurs after the completion of the crime.  If an accomplice is involved prior to the completion, i.e., up to the point when the principal in the first degree has reached a place of temporary safety, the accomplice is in fact a principal in the second degree. Today, nearly all jurisdictions treat the offense of accessory after the fact as separate from, and often less serious than, the felony committed by the principal in the first degree.


§ 23.03   Acts Giving Rise to Accomplice Liability


[A]         Common Law


[1]  Types of Assistance – An accomplice is a person who, with the requisite mens rea, assists the primary party in committing an offense. Generally speaking, there are three basic types of assistance:


 1.)assistance by physical conduct (e.g., furnishing an instrumentality to commit an offense, "casing" the scene in advance, locking the door to keep an assault victim from escaping, or driving a "getaway" car from the scene of the crime);
 2.)assistance by psychological influence (e.g., incitement, solicitation, or encouragement); and
 3.)assistance by omission (if there exists a duty to act).  A person is not an accomplice simply because he knowingly fails to prevent the commission of an offense, but such failure to act may serve as a critical factor in determining that he assisted by psychological influence.


[2]  Amount of Assistance Required – A person is not an accomplice unless his conduct (or omission) in fact assists in the commission of the offense. However, the degree of aid or influence provided is immaterial; even trivial assistance suffices.  Furthermore, a secondary party is accountable for the conduct of the primary party even if his assistance was causally unnecessary to the commission of the offense.


[3]  The Pinkerton Doctrine – In Pinkerton v. United States, 328 U.S. 640 (1946), two parties conspired to violate certain provisions of the Internal Revenue Code and thereafter, while one co-conspirator was in prison for unrelated reasons, the other carried out the plan.  Emerging from this case is the "Pinkerton doctrine" under which a party to a conspiracy is responsible for any criminal act committed by an associate if it:


 1.)falls within the scope of the conspiracy; or
 2.)is a foreseeable consequence of the unlawful agreement.


[B]  Model Penal Code – A person is guilty of an offense if he commits it "by his own conduct or by the conduct of another person for which he is legally accountable, or both."  Accomplice liability is founded on:


(1)  Accountability through an innocent instrumentalityThe Code explicitly provides that the innocent-instrumentality doctrine applies only if one causes another to engage in the conduct in question.


(2)  Accomplice accountability – One is an accomplice if, with the requisite mens rea, he solicits, aids, agrees to aid, or attempts to aid in the planning or commission of the offense, or has a legal duty to prevent the commission of the offense, but makes no effort to do so. [MPC § 2.06(2), (3)(a)]


(3)  Miscellaneous accountability –  Legislatures may enact special laws of accomplice liability, e.g., prohibiting the aiding and abetting of a suicide attempt, [MPC § 210.5(2)] or criminalizing the knowing facilitation of a prison escape. [MPC § 242.6]


The Model Code rejects the Pinkerton doctrine of conspiratorial liability. Thus, a person is not accountable for the conduct of another solely because he conspired with that person to commit an offense. The liability of one who does not personally commit an offense must be based on accountability through an innocent instrumentality, accomplice accountability, or miscellaneous accountability.


§ 23.04   Mens rea in Complicity Offenses


[A]         Common and Statutory Law


[1]  "Intent" – The mens rea of accomplice liability is usually described in terms of "intention." As with the crime of conspiracy, however, there is considerable debate regarding whether a person may properly be characterized as an accomplice if he knows that his assistance will aid in a crime, but he lacks the purpose that the crime be committed.  Most courts, however, hold that a person is not an accomplice in the commission of an offense unless he shares the criminal intent with the principal.


[2]  Recklessness and Negligence – Although courts and statutes frequently express the culpability requirement for accomplice liability in terms of "intent," the majority rule is that accomplice liability may nevertheless attach in cases of crimes involving recklessness or negligence.


[B]  Model Penal Code – The Code person resolves the common law ambiguity as to whether complicity requires purpose or mere knowledge of the consequences of their conduct.  Under the Code, accomplice liability exists only if one assists "with the purpose of promoting or facilitating the commission of the offense." [MPC § 2.06(3)(a)]


Accomplice liability may also be found in cases involving recklessness or negligence when causing a particular result is an element of a crime:


 1.)he was an accomplice in the conduct that caused the result; and
 2.)he acted with the culpability, if any, regarding the result that is sufficient for commission of the offense. [MPC § 2.06(4)]


§ 23.05   Liability of the Secondary Party In Relation to the Primary Party


[A]  Common Law – At common law, an accessory could not be convicted of the crime in which he assisted until the principal was convicted and, with the limited exception of criminal homicide, could not be convicted of a more serious offense or degree of offense than that of which the principal was convicted.


[B]  Modern Rule – Today, the majority rule is that a conviction (or even a prosecution) of the principal in the first degree is not a prerequisite to the conviction of a secondary party.  Non-prosecution of the principal might result from any one of numerous factors extraneous to his guilt (e.g., death, flight from the jurisdiction, or immunity from prosecution), and thus, does not in itself prove that a crime did not occur.


Furthermore, even if the principal is prosecuted but acquitted on the basis of an excuse defense, his acquittal should not bar a prosecution and conviction of a secondary party to whom the excuse does not extend. An acquittal on the ground of an excuse means that the actions of the primary party were wrongful, but that he was not responsible for them because of the excusing condition.  However, since accomplice liability is derivative, there must be proof at the accomplice’s trial of the principal’s guilt.


An accomplice or accessory may be convicted of a more serious offense than is proved against the primary party.


[C]  Model Penal Code – An accomplice in the commission of an offense may be convicted of a crime, upon proof of its commission by another person, regardless of whether the other person is convicted, acquitted, or prosecuted. Furthermore, an accomplice may be convicted of a different offense or different degree of offense than is the primary party. [MPC § 2.06(7)] The Code also expressly provides that a person who is legally incapable of committing an offense personally may be held accountable for the crime if it is committed by another person for whom he is legally accountable. [MPC § 2.06(5)] 


§ 23.06   Limits to Accomplice Liability


[A]         Common Law


[1]  Legislative-Exemption Rule – A person may not be prosecuted as an accomplice in the commission of a crime if he is a member of the class of persons for whom the statute prohibiting the conduct was enacted to protect.  For example, in a case of statutory rape, an underage female who engages in sexual intercourse cannot be prosecuted as a secondary party to her own statutory rape since the law was enacted to protect young females from immature decisions regarding sex.


[2]  Abandonment – As with the law of conspiracy, many courts hold that a person who provides assistance to another for the purpose of promoting or facilitating the offense, but who subsequently abandons the criminal endeavor, can avoid accountability for the subsequent criminal acts of the primary party. The accomplice must do more than spontaneously and silently withdraw from the criminal activity.  He must communicate his withdrawal to the principal and attempt to neutralize the effect of his prior assistance.


[B]  Model Penal Code – A person is not an accomplice in the commission of an offense if:

(1) he is the victim of the offense;

(2) his conduct is "inevitably incident" to the commission of the offense;

(3) he terminates his participation before the crime is committed, and:

a)  neutralizes his assistance;

b)  gives timely warning to the police of the impending offense; or

c)  attempts to prevent the commission of the crime.


Liability for Another's Conduct; Complicity

Model Penal Code § 2.06; New York Penal Law art. 20
Dusenberry v. Com., 220 Va. 770,  263 S.E.2d 392 (1980) (innocent)
Hernandez, State v., 18 Cal. App. 3d 651 (1971) (innocent)
Tavares, Commonwealth v., 382 Pa. Super. 317 (1989) (innocent)
Tally, State v., 15 So. 722 (Ala. 1894) (complicity)
Ochoa, State v., 72 P.2d 609, 41 N.M. 589 (1937) (complicity)
United States v. Peoni, 100 F.2d 401 (2d Cir. 1938)
United States v. Falcone, 109 F.2d 579 (2d Cir. 1940)
Backun v. United States, 112 F.2d 635 (4th Cir. 1940)
Haines, Commonwealth v., 147 Pa. Super. 165 (1942)
Standefer v. United States, 447 U.S. 10 (1980) (acquittal of principal)
People v. Brooks, 34 N.Y.2d 475 (1974) (definition of "accomplice")
People v. McGee, 49 N.Y.2d 48 (1979) (complicity vs. conspiracy)
Abbott, People v., 84 A.D.2d 11 (N.Y. App. Div. 1981)
People v. Flayhart, 72 N.Y.2d 737 (1988) (complicity in reckless and negligence offenses)
People v. Kaplan, 76 N.Y.2d 140 (1990) (complicity in intent offenses; complicity vs. facilitation)
Maiorino v. Scully, 746 F. Supp. 331 (S.D.N.Y. 1990) (causation; convictions for different degrees of offense)
Manini, People v., 79 N.Y.2d 561 (1992)
Gains v. State, 417 So.2d 719 (D. Ct. App. Fla. 1982)
Sayre, Francis Bowes, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689 (1930)




§ 24.01   Definition of Homicide


[A]  Common Law and Statutory Homicide – At very early common law, "homicide" was defined as "the killing of a human being by a human being." This definition included suicide. However, modern law defines "homicide" as "the killing of a human being by another human being." Suicide, therefore, is no longer a form of homicide in most statutes.  Homicide is divided into two crimes – murder and manslaughter.


[1]  "Human Being" -  The common law and majority approaches define the beginning of life as birth for purposes of interpreting the criminal homicide law.  A minority of states now treat a viableor, at times, even nonviablefetus as a human being under the homicide statute.


Regarding the end of human life, a majority of states, either by statute or judicial decision, have incorporated "brain death" in their definition of "death."


[2]  "Murder" – The common law definition of "murder" is "the killing of a human being by another human being with malice aforethought."


[3]  "Manslaughter" – Manslaughter is "an unlawful killing of a human being by another human being without malice aforethought."


[4]  "Malice" – As the term has developed, a person kills another acts with the requisite "malice" if he possesses any one of four states of mind:


 1.)the intention to kill a human being;
 2.)the intention to inflict grievous bodily injury on another;
 3.)an extremely reckless disregard for the value of human life; or
 4.)the intention to commit a felony during the commission or attempted commission of which a death results.


[B]  Model Penal Code – A person is guilty of criminal homicide under the Model Code if he unjustifiably and inexcusably takes the life of another human being [MPC § 210.0(1)] purposely, knowingly, recklessly, or negligently. [MPC § 210.1(1)]  The Code recognizes three forms of criminal homicide: murder, manslaughter, and (unlike the common law) negligent homicide.


§ 24.02   Murder


[A]  Degrees of Murder – At common law, there were no degrees of murder, and murder was a capital offense.  Reform of the common law has resulted in the division of murder into degrees, with only murder in the first degree being a capital offense.


The Model Penal Code rejects the degrees-of-murder approach.


[B]  Intent to Kill


[1]  "Deliberate and Premeditated" – Typically, a murder involving the specific intent to kill is first-degree murder in jurisdictions that grade the offense by degrees if the homicide was also "deliberate" and "premeditated."


[2]  "Wilful, Deliberate, Premeditated" – Nearly all states that grade murder by degrees provide that a "wilful, deliberate, premeditated" killing is murder in the first degree.


[3]  "Intent to Inflict Grievous Bodily Injury" – Malice aforethought is implied if a person intends to cause grievous bodily injury to another, but death results.  In states that grade murder by degree, this form of malice nearly always constitutes second-degree murder.


[4]  Extreme Recklessness ("Depraved Heart" Murder) – Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the value of human life. In states that separate murder into degrees, this type of murder almost always constitutes second-degree murder.


[C]  Model Penal Code – A homicide is murder if the defendant intentionally takes a life, or if he acts with extreme recklessness (i.e., depraved heart murder). 


§ 24.03   Felony-Murder


[A]  Common Law – At common law, a person is guilty of murder if he kills another person during the commission or attempted commission of any felony. Nearly every state retains the felony-murder rule.


[B]  Statutory Law – Under most modern murder statutes, a death that results from the commission of an enumerated felony (usually a dangerous felony, such as arson, rape, robbery, or burglary) constitutes first-degree murder for which the maximum penalty is death or life imprisonment. If a death results from the commission of an unspecified felony, it is second-degree murder.  The felony-murder rule authorizes strict liability for a death that results from commission of a felony.


[C]  Model Penal Code – The Code also provides for felony-murder by setting forth that extreme recklessness (and, thus, murder) is presumed if the homicide occurs while the defendant is engaged in, or is an accomplice in, the commission, attempted commission, or flight from one of the dangerous felonies specified in the statute. [MPC § 210.2(1)(b)]


§ 24.04   Limits on the Felony-Murder Rule


[A]  Inherently-Dangerous-Felony Limitation – Many states limit the rule to homicides that occur during the commission of felonies which by their nature are dangerous to human life, e.g., armed robbery.


[B]  Independent Felony (or Merger) Limitation – Most states recognize some form of "independent felony" or "collateral felony" limitation. That is, the felony-murder rule only applies if the predicate felony is independent of, or collateral to, the homicide. If the felony is not independent, then the felony merges with the homicide and cannot serve as the basis for a felony-murder conviction.  For example, most jurisdictions hold that felonious assault may not serve as the basis for felony-murder.


[C]  Res Gestae Requirement – A requirement of the felony-murder rule is that the homicide must occur "within the res gestae [things done to commit] of the felony," which requires both:


 1.)temporal and geographical proximity – There must be a close proximity in terms of time and distance between the felony and the homicide. The res gestae period begins when the defendant has reached the point at which he could be prosecuted for an attempt to commit the felony, and it continues at least until all of the elements of the crime are completed.  Most courts provide that the res gestae of a felony continues, even after commission of the crime, until the felon reaches a place of temporary safety.
 2.)A causal relationship between the felony and the homicide.


[D]  Killing by a Non-Felon


[1]  The "Agency" Approach – A majority of states that have considered the issue apply the so-called "agency" theory of felony murder, which precludes any killing committed during the commission of the felon by a person other that the defendant or his accomplices from serving as the basis for felony-murder.  However, a killing by an accomplice can be imputed to others involved in the commission of the felony so that felony-murder can be charged against the non-killers.


[2]  "Proximate Causation" Approach – A minority of courts apply the "proximate causation" theory of felony-murder under which a felon is liable for any death proximately resulting from the felony, whether the killer is a felon or a third party.


[3]  "Provocative Act" Doctrine – A felon may be held responsible for the death of another at the hands of a third party, if the basis for the charge is not felony-murder, but instead is founded on what is sometimes termed the "provocative act" doctrine, which is simply a form of reckless homicide, e.g., a felon recklessly provokes a victim to shoot in self-defense, killing an innocent bystander.


§ 24.05   Manslaughter


[A]  Forms of Manslaughter – Traditionally, three types of unlawful killings constitute manslaughter:


 1.)an intentional killing committed in "sudden heat of passion" as the result of "adequate provocation" (voluntary manslaughter);
 2.)an unintentional killing resulting from the commission of a lawful act done in an unlawful manner (involuntary manslaughter).  This is akin to criminally negligent homicide.
 3.)an unintentional killing that occurs during the commission or attempted commission of an unlawful act (involuntary manslaughter). This type of manslaughter is sometimes dubbed "unlawful-act manslaughter," or if the killing occurred during the commission of a non-felony, "misdemeanor-manslaughter."


[B]         Provocation ("Sudden Heat of Passion")


[1]  Elements of the Mitigating Factor – Under common law principles, an intentional homicide committed in "sudden heat of passion" as the result of "adequate provocation" mitigates the offense to voluntary manslaughter. The common law defense contains four elements:


 1.)The defendant must have acted in heat of passion at the moment of the homicide. "Passion" has been interpreted to include any violent or intense emotion such as fear, jealousy, and desperation.
 2.)The passion must have been the result of adequate provocation.  Under the modern approach, it is up to the jury to determine what constitutes adequate provocation.  Juries in such cases are typically instructed to apply an objective "reasonable-person" standard.
 3.)The defendant must not have had a reasonable opportunity to cool off.
 4.)There must be a causal link between the provocation, the passion, and the homicide.


[2]  Words as Adequate Provocation – Surviving from the common law in most non-Model Penal Code jurisdictions is the rule that words alone do not constitute adequate provocation.  However, a few courts allow the defense to be raised in the case of informational, but not insulting, words. Other courts have held open the possibility that insulting words may qualify in extreme circumstances. The "words alone" rule does not apply in jurisdictions following the Model Penal Code.


[C]  Unlawful-Act (Misdemeanor-Manslaughter) – An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or, at least, not amounting to felony that would trigger the felony-murder rule) constitutes involuntary manslaughter. This may be termed "misdemeanor-manslaughter" or "unlawful-act manslaughter."


The scope of the doctrine varies widely by jurisdiction.  Some courts limit its applicability to inherently dangerous misdemeanors while others apply the doctrine to all misdemeanors.


[D]  Model Penal Code


[1]  In General – A person is guilty of manslaughter if he:


 1.)recklessly kills another; or
 2.)kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of "extreme mental or emotional disturbance" for which there is a "reasonable explanation or excuse."


[MPC § 210.3(1)(a)-(b)]


 The Code does not recognize any form of criminal homicide based on the unlawful-act (misdemeanor-manslaughter) rule. [MPC § 6.06(2).]


[2]  Reckless and Criminally Negligent Homicide – A person who kills another recklessly is guilty of manslaughter.  In a sharp departure from the common law, the Code precludes liability for manslaughter based on criminal negligence.  A criminally negligent homicideinvoluntary manslaughter at common lawconstitutes the lesser offense of negligent homicide under the Code. [MPC § 210.4]


[3]  Extreme Mental or Emotional Disturbance – A person who would be guilty of murder because he purposely or knowingly took a human life, or because he killed a person recklessly under circumstances manifesting an extreme indifference to the value of human life, is guilty of the lesser offense of manslaughter if he killed the victim while suffering from an "extreme mental or emotional disturbance" (EMED) for which there is "reasonable explanation or excuse." The reasonableness of the explanation or excuse regarding the EMED is "determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be."  The concept of EMED is intended to incorporate two common law doctrines: (1) sudden heat of passion (but in a much expanded form); and (2) partial responsibility (diminished capacity).


The EMED manslaughter provision is broader than the common law provocation defense in the following ways:


 1.)a specific provocative act is not required to trigger the EMED defense;
 2.)even if there is a provocation, it need not involve "an injury, affront, or other provocative act perpetrated upon [the defendant] by the decedent";
 3.)even if the decedent provoked the incident, it need not fall within any fixed category of provocations;
 4.)words alone can warrant a manslaughter instruction;
 5.)there is no rigid cooling-off rule. The suddenness requirement of the common lawthat the homicide must follow almost immediately after the provocationis absent from the EMED defense.


Felony Murder

Model Penal Code § 210.2(1)(b); New York Penal Law § 125.25(3)
State v. Levelle, 13 S.E. 319 (S.C. 1891) (attempted suicide as predicate felony)
Gladman, People v., 41 N.Y.2d 123 (1976)
Michalow, People v., 229 N.Y. 325 (1920)
Wroblewski, People v., 109 A.D.2d 39 (N.Y. App. Div. 1985)
Davis, People v., 128 Misc. 2d 782 (1985)
Ingram, People v., 67 N.Y.2d 897 (1986)
Washington, People v., 62 Cal.2d 777,  402 P.2d 130,  44 Cal.Rptr. 442 (1965)
Hickman, People v., 12 Ill.App.3d 412,  297 N.E.2d 582 (1973)



Model Penal Code art. 210; New York Penal Law art. 125
Michael, Jerome & Herbert Wechsler, A Rationale of the Law of Homicide I & II, 37 Colum L Rev 701, 1261 (1937)



Model Penal Code § 210.2; New York Penal Law §§ 125.25-.27
Franklin, Francis v., 471 U.S. 307 (1985)
Gregg v. Georgia, 428 U.S. 153 (1976) [oral argument]
Lockett v. Ohio, 438 U.S. 586 (1978) [oral argument]
Malone, Commonwealth v., 354 Pa. 180 (1946)
Watson v. United States, 501 A.2d 791 (D.C. Ct. App. 1985)
People v. Sanchez, 2002 N.Y. LEXIS 2233


Felony Murder

Model Penal Code § 210.2(1)(b); New York Penal Law § 125.25(3)
Tison v. Arizona, 481 U.S. 137 (1987)
State v. Levelle, 13 S.E. 319 (S.C. 1891) (attempted suicide as predicate felony)
Gladman, People v., 41 N.Y.2d 123 (1976)
Michalow, People v., 229 N.Y. 325 (1920)
Wroblewski, People v., 109 A.D.2d 39 (N.Y. App. Div. 1985)
Ingram, People v., 67 N.Y.2d 897 (1986)
Washington, People v., 62 Cal.2d 777,  402 P.2d 130,  44 Cal.Rptr. 442 (1965)
Hickman, People v., 12 Ill.App.3d 412,  297 N.E.2d 582 (1973)


Model Penal Code § 210.3; New York Penal Law §§ 125.12-.20
Williams, State v., 4 Wash.App. 908, 484 P.2d 1167 (1971)
Strong, People v., 37 N.Y.2d 568 (1975)
Colon, People v., 77 A.D.2d 370 (N.Y. App. Div. 1980)
McManus, People v., 67 N.Y.2d 541 (1986)
Duffy, People v., 79 N.Y.2d 611 (1992)
Welansky, Com. v., 316 Mass. 383,  55 N.E.2d 902 (1944)


Model Penal Code § 210.3(b); New York Penal Law §§ 125.20(2), .25(1)(a), .27(2)(a)
Mullaney v. Wilbur, 421 U.S. 684 (1975)
Patterson v. New York, 432 U.S. 197 (1977)
People v. Casassa, 49 N.Y.2d 668 (1980)
People v. White, 79 N.Y.2d 900 (1992)
People v. Fardan, 82 N.Y.2d 638 (1993)
Robinson, State v., 136 N.J. 476 (1994)
People v. Roche, 98 N.Y.2d 70 (2002)
Rowland v. State, 35 So. 826, 83 Miss. 483 (1904)
Gounagias, State v., 88 Wash. 304 (1915)
Hamilton, United States v., 182 F.Supp. 548 (D.D.C.1960)
Walker, People v., 55 Ill.App.2d 292,  204 N.E.2d 594 (1965)
Berry, People v., 18 Cal.3d 509 (1976)
Camplin, DPP v., [1978] AC 705

Negligent Homicide

Model Penal Code § 210.4; New York Penal Law § 125.10
People v. Haney, 30 N.Y.2d 328 (1972) (traffic accident)
People v. Beiter, 77 A.D.2d 214 (N.Y. App. Div. 1980) (traffic accident)
People v. Frisbie, 114 A.D.2d 587 (N.Y. App. Div. 1985) (traffic accident)


§ 25.01   General Principles


[A]  Common law – Generally speaking, sexual intercourse by a male with a female not his wife, constitutes rape if it is committed:


 2.)by means of deception;
 3.)while the female is asleep or unconscious; or
 4.)under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).


Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent.


[B] Traditional Statutory Law – Traditional rape statutes define the offense as sexual intercourse achieved "forcibly," "against the will" of the female, or "without her consent." Like the common law, such statutes are gender-specific, i.e., only males are legally capable of perpetrating the offense, and only females can legally be victims of the crime.


[C]  Modern Statutory Law – Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female.  Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., "criminal sexual conduct" or "sexual assault") and the offense is divided into degrees.


[D]  Model Penal Code – A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:


 1.)the female is less than 10 years of age;
 2.)the female is unconscious;
 3.)he compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
 4.)he administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]


§ 25.02   "Forcible"


The traditional common law rule requires proof that both the female did not consent to the intercourse and that the sexual act was "by force" or "against her will" ("resistance" requirement).  Generally speaking, nonconsensual intercourse is "forcible" if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person.  Intercourse secured by a non-physical threat does not constitute forcible rape at common law.


A minority of jurisdictions by statute or common law interpretation have abolished the resistance requirement.  Where state have retained the resistance requirement, the trend is to reduce the significance of the rule by lowering the barrier, typically requiring only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent.


An extreme minority approach, applied at least in New Jersey, is that a male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse. [State in the Interest of M.T.S., 609 A.2d 1266 (1992)]


The Model Penal Code defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.


§ 25.03   Marital Immunity Rule


At common law, a husband could not be guilty of raping his wife.  The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape.


A minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule. 


The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution against a spouse or persons "living as man and wife," although they are not formally married.  More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. [MPC § 213.6(2)]


§ 25.04   Evidentiary Issues at Rape Trials


[A]  Corroboration Rule – At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape.  However, a minority of states, by statute or case law, have instituted a corroboration requirement.


The Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)]


[B]  Rape-Shield Statutes – If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible.  However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called "rape-shield" laws. 


The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.


[C] Rape Trauma Syndrome – Rape Trauma Syndrome (RTS) is a set of acute and long-term symptoms resulting from a rape or attempted rape.  In the acute phase, a rape victim is as apt to appear calm and subdued immediately after an attack as she is to manifest fear, anger, or anxiety.  Many woman in the acute phase also experience physical symptoms, such as tension headaches, fatigue, and disturbed sleep patterns. In the long-term phase, many rape victims develop phobias related to the circumstances of the rape.


There is a split of authority regarding the scientific reliability and, therefore, admissibility of RTS evidence. Jurisdictions that permit RTS expert testimony often admit it only for limited purposes, e.g., to explain the fact that the alleged victim appeared calm immediately after the rape if such conduct would likely be viewed by jurors as inconsistent with a claim of rape.  Generally, however, RTS may not be introduced as proof of the commission of the rape itself.


The Model Penal Code is silent regarding the admissibility of evidence of RTS.


§ 25.05   Other Sex Crimes


      [A]  Statutory Rape – Today, "statutory rape" remains an offense in most states.  Many states apply a two-level approach to this offense:  sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape; intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.


The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.


[B] Gross Sexual Imposition – Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud.  However, such conduct does constitute the offense of gross sexual imposition.  Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:


 1.)the female submits as the result of a "threat that would prevent resistance by a woman of ordinary resolution," e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)]
 2.)a male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is unable to appraise the nature of his conduct. [MPC § 213.1(2)(b)]
 3.)a male knows that the female is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband. [MPC § 213.1(2)(c)]



§ 26.01    

[A]  General Rule – Common law larceny is the trespassory taking (caption) and carrying away (asportation) of the personal property of another with the intent to permanently deprive the possessor of the property.  Larceny is a specific-intent crime.


Real property is not the subject of larceny law. Moreover, only tangible forms of personal property are encompassed in the offense.


Grand and petty larceny were felonies at common law, with grand larceny being punishable by death.  Today, grand larceny is a felony and petty larceny is a misdemeanor.


[B]  Trespass – A "trespass" is the dispossession of another’s property without his consent, or in the absence of justification for such nonconsensual dispossession.  Dispossession by fraud also constitutes a trespassory taking.


[C]  "Of Another"


[1]  Common law – Because larceny involves the trespassory taking of possession of another person’s property, a person may be convicted of larceny of property he owns, e.g., if a landlord, who leases out furnished apartments, enters a tenant’s apartment and takes and carries away the furniture in violation of the lease agreement, he has taken the personal property "of another" for purposes of larceny law.


[2]  Model Penal Code – The Code defines "property of another" broadly to include "property in which any person other than the actor has an interest." [MPC § 223.0(7)]  This definition includes a possessory or ownership interest.


[D]  "Custody" versus "Possession" – Larceny involves the trespassory taking of personal property from the possession of another. Ownership is not the key.  A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner.  Possession can be actual or constructive. It is actual if the person is in physical control of it; it is constructive if he is not in physical control of it but no one else has actual possession of it, either because the property was lost or mislaid or because another person has mere "custody" of it. All non-abandoned property is in the actual or constructive possession of some party at all times.


A person has mere custody of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of the property.  A person in physical control of property has mere custody of the property in any of the following situations:


 1.)He has temporary and extremely limited authorization to use the property.
 2.)He received the property from his employer for use in the employment relation.  However, an employee who obtains property from a third person for delivery to the employer takes lawful possession upon delivery, and thus cannot be convicted of larceny of the property if he carries it away.
 3.)He is a bailee of goods enclosed in a container.  When a bailee is entrusted with a container for delivery in unopened condition, he receives possession of the container but mere custody of its contents. When the bailee wrongfully opens the container and removes the contents, i.e., when he "breaks bulk," a trespassory taking of possession of the contents results.
 4.)He obtained the property by fraud.  When one receives property from another based on a false promise to return it, he receives only custody of the property, and is guilty of larceny if he appropriates it. On the other hand, if one has an honest intent when he receives the property (and, thus, no fraud is involved), he receives possession of the property, and any subsequent misappropriation constitutes embezzlement or no offense.


[E]   Carrying Away (Asportation)


[1] Common law – A person is not guilty of larceny unless he carries away the personal property that he took trespassorily from another. However, virtually any movement of the property away from the point of caption is sufficient, e.g., larceny, rather than attempted larceny, occurs even if a shoplifter is caught with the merchant’s property in his possession inside the premises. 


[2]  Model Penal Code – The Code does not require proof of asportation. [MPC § 223.2(1)] This feature of the Code has been incorporated into most states’ revised theft laws.


[F]   Personal Property


[1]  Land and Attachments Thereto – The common law of larceny does not protect land because by its nature it is immovable.  Items attached to the land, e.g., trees, crops, and inanimate objects affixed in the earth also fall outside the scope of the offense. Once they are severed from the land, however, they become personal property and subject to larceny law.


In contrast, the Model Penal Code and many modern theft statutes cover all property ("anything of value"), [MPC § 223.0(6)] including "immovable" property, such as real estate, and "movable" property, "including things growing on, or found in land." [MPC § 223.0(4)]


[2]  Animals – At common law, animals in the state of nature or ferae naturae (e.g., wild deer, wild birds, fish in an open river) were not "property" within the meaning of larceny law. However, once an animal was confined by a person on his land or killed, it became his personal property, subject to the law’s protection.


Domesticated animals of a "base nature" also fell outside the scope of the common law definition of larceny. Horses and cattle were subject to larceny laws; dogs were "base." Today all domesticated animals and birds are protected by theft statutes.


[3]  Stolen Property and Contraband – It is larceny for a person to take and carry away the property of another, even if the "victim" also had no right to possess the property in question.


[4]  Intangible Personal Property – Because common law larceny involves the wrongful taking and carrying away of personal property, property without a corporeal existence, i.e., intangible property, is excluded from its coverage.  Today the vast majority of states follow the Model Penal Code and prohibit the unlawful transfer of intangible personal property rights. [MPC § 223.2(2)]


[G]   Intent to Steal


[1]  In General – Courts commonly state that a person is not guilty of larceny unless he takes and carries away the personal property of another with the "specific intent to steal" the property.  However, courts have construed reckless behavior to constitute intent if the defendant knew that his conduct would create a substantial risk of permanent loss, i.e., that the defendant was guilty of recklessly exposing the property to permanent loss.


[2]  Continuing-Trespass Doctrine – When a person takes possession of another person’s property by trespass, every moment that he retains possession of it constitutes a new trespassory taking that continues until he terminates possession of the property.


[3]  Claim of Right – A person is not guilty of larceny if he takes property belonging to another person based on the good faith belief that he has a right to possess the property. The defendant’s belief negates the specific intent to steal.


[H]  Lost and Mislaid Property – An owner of property retains constructive possession of his lost property if there exists a reasonable clue to ownership of it when it is discovered. A reasonable clue to ownership exists if the finder: (1) knows to whom the lost property belongs; or (2) has reasonable ground to believe, from the nature of the property, or the circumstances under which it is found, that the owner can be ascertained.  If there is no reasonable clue to ownership of the lost property, the finder may use the property as he wishes; the act of picking up the property and using or disposing of it is not a "taking" (trespassory or otherwise). However, if there is a reasonable clue to ownership of the property, the finder’s state of mind upon discovery becomes critical.


With mislaid property, the same two factorsthe possessory interest of the owner in the property, and the finder’s state of mind upon discoveryapply.  An object is "mislaid" if it is intentionally placed in a location for a temporary purpose and then inadvertently left there.


§ 26.02   Embezzlement


Embezzlement is not a common law offense and thus is a legislative creation.  Most embezzlement statutes set forth the following elements:


 1.)that the defendant came into possession of the personal property of another in a lawful manner;
 2.)that the defendant thereafter fraudulently converted the property; and
 3.)that the defendant came into possession of the property as the result of entrustment by or for the owner of the property.


§ 26.03   False Pretenses


[A]  In General – At common law, a  person who "knowingly and designedly" obtains title to property by false pretenses is guilty of the offense of false pretenses. A "false pretense" is a false representation of an existing fact.


[B]  Elements of the Offense


[1]  False Representation – False pretenses requires a false representation, whether in the form of writing, speech, or conduct.  Generally, nondisclosure of a material fact does not constitute false pretenses, even if the omitter of the information knows that the other party is acting under a false impression. However, nondisclosure constitutes misrepresentation if the omitter has a duty of disclosure, such as when he has a fiduciary relationship to the victim.


[2]  Existing Fact


[a]  Common and Statuory Law – At common law, the expression of an opinion, uttered with the intent to defraud another, does not constitute false pretenses.  According to the modern majority rule, the offense of false pretenses also does not apply to misrepresentations regarding future conduct, although many states have recently expanded their theft laws to encompass false promises.


[b]  Model Penal Code – Section § 223.3 provides that a person is guilty of "theft by deception" (the Code’s equivalent offense) if he creates or reinforces a false impression regarding the value of property. However, the Code expressly immunizes puffing, if the statement would not deceive an ordinary listener.


The Model Penal Code prohibits deception regarding a person’s "intention or other state of mind." The Code expressly provides, however, that deception regarding the intention to fulfill a promise cannot be inferred solely from the fact that the promisor did not perform as guaranteed. [MPC § 223.3(1)]



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