Shared Flashcard Set


Criminal Law
Dolinko UCLA Criminal Law 1L

Additional Law Flashcards




Actus Reus
guilty action: act, possession or omission
 1. Voluntary act that
 2. Causes
 3. Social harm
Punishment Theories
i. Retributionism- punish b/c they deserve it
Duty to punish even if Vs don’t seek it
ii. Utilitarian- all laws are to augment happiness of community
Punish only when excludes some greater evil
No moral need for punishment
iii. Rehabilitation
Make criminal safe to return to streets for public benefit
i. General Deterrent- deters people in general from committing same crime
ii. Specific Deterrent- deters person from committing crime again
Voluntary Act - Common Law
 Bodily movement, muscular contraction: physical but not necessarily visible (talking, etc) which follows volition.
• Voluntary Acts even
o Under Hypnotism
o Under Multiple Personalities
o Possession if knowingly possess
• Involuntary if: wild acts not governed by will
o Reflexive actions, spasms, epileptic seizures, movement while unconscious or asleep
Voluntary Act - MPC
Criminal liability must be based on conduct which includes a voluntary act or omission
 Each stage requires voluntary act
• Except for violations
• Involuntary: any conduct that is not a product of the effort or determination of the actor, either conscious or habitual
o Includes hypnosis
Omissions - Common Law
 Only have to help when have duty
o If physically capable
 Duties
o Status Relationship
 Parents to minor child
 Married couples to one another
 Masters to servants
o Contractual Obligations
 Baby-sitter to charge
 Agreement to feed infirmed stranger
o Omissions following an act
o Creation of Risk
 D negligently injures V, has duty to help
o Voluntary Assistance
 Once begin assistance, have duty to continue if V would be in worse position had not helped in first place
o Statutory Duty
 Duties imposed by statutes
• Driver to stop after wrecks
• Good Samaritan Laws
Omissions - MPC
o Omissions constitutes an act if
 The law defining the offense provide for it
 Duty to act is “otherwise imposed by law”
Mens Rea - Common Law
The particular mental state provided for by the definition of the crime

Old - General blameworthiness or overall bad morality (not used anymore)
Intent - Common Law
purpose or knowledge
 It is his desire
 Acts w/ knowledge that social harm is virtually certain to occur
Transferred Intent - Common Law
 Liable if intend to kill one person and kill another
 Transfers intent from one person to another- but not from one social harm to another
• Trying to kill dog- kill a person
Specific Intent Crimes - Common Law
When definition of crime included an intent or purpose to do some future act or achieve another consequences, or provides that the actor must be aware of a statutory attendant circumstance (not a very good classification system)
General Intent Crimes - Common Law
Just requires general intent (not a very good classification system)
Mens Rea - MPC
o Each element of offense must be done w/ mens rea
o No general and specific intent crimes
o Four mens rea terms
 Purposefully
 Knowingly
 Recklessly (aware of risk but does anyhow)
 Negligently (not aware of risk)
Purposefully - MPC
• Conscious object to engage in conduct of that nature or to cause such a result
• If is aware of the existence of such circumstances or believes or hopes that they exist
o If enters in building hoping it was occupied
Knowingly - MPC
• If actor is aware that it is practically certain that his conduct will cause such result
• Attendant Circumstances: aware that his conduct was of that nature or that such circumstances exist
Recklessly - MPC
• Consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct
o Substantial and unjustified
Negligently - MPC
• If actor should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct
unlawful killing of another human being (murder or Manslaughter)
Murder - Common Law
Homicide with malice aforethought
Malice Aforethought - Common Law
4 types:
1 - Intent to Kill
2 - Intent to inflict GBH
3 - Depraved Heart
4 - Felony Murder
Intent to Kill - Common Law
1st degree murder: willful, deliberate, and premeditated
2nd degree murder: not premeditated
Theories of Premeditation:
Lying in wait, poisoning, always = premeditation
Carroll: Some courts say no time is too short
CA- Anderson/ Guthrie case look for factors of premeditation
• Planning activity
• Motive
• Manner of killing
Intent to inflict GBH - Common Law
o 2nd degree
o Many definitions of GBH, but generally injury is grave and not trivial and gives rise to apprehension of danger to life, health, limb
Depraved Heart - Common Law
(implied malice: extreme recklessness)
o 2nd degree
o Recklessly: callous indifference to human life or rarely: very very very negligent
 1. Creates high risk of death
 2. No good reason for considering risk
 3. Awareness of risk
o Firing gun into crowded room, driving car very fast in bad weather while intoxicated
o Omission: parents fail to feed infant for two weeks (no intent to kill)
Felony Murder - Common Law
guilty of murder if kills another during commission of felony

Agency theory states that the deceased has to be killed by one of the felons

 Often extends to accomplices even if not directly involved
 Causation
• Must be “but for” and
• Proximate natural and probable consequence or foreseeable consequence
 Limits
• Limited to inherently dangerous felonies in many states
• Defined objectively and subjectively
• Objective or abstractly
o Does this crime by its very nature create substantial risk that someone will be killed?
• Subjectively
o Decide whether that specific commission of felony was inherently dangerous by examining the facts and circumstances of that case
Felony Murder in the first degree - Common Law
Murder committed during the commission of Arson, Rape, or Robbery
Felony Murder in the second degree - Common Law
Murder committed during the commission of any crime other than Arson, Rape, or Robbery
Merger Rule - Felony Murder - Common Law
applies in most states
Felony Murder can only apply if the felony is independent of homicide

• Or else involuntary manslaughter would be bootstrapped into murder
• Must have individual felonious purpose
• Crimes that generally merge
o Assault w/ deadly weapon
o Burglary (which is assault with deadly weapon)
Agency Theory - Felony Murder - Common Law
Felony murder
CA (more popular theory): can’t be convicted if the killing is not done by felon (or co-felon)
Proximate Causation Theory - Felony Murder - Common law
Felony Murder

NY, NJ : felon is liable for any death proximately resulting from felony
Manslaughter - Common Law
homicide without malice aforethought
Voluntary Manslaughter - Common Law
would be murder except provoked (or imperfect self defense)
Provocation: killing must be: (justification or excuse)
1. In heat of passion (subjective)
2. Legally adequate provocation (would enrage reasonable person – objective)
3. Not enough time for reasonable person cooling time (objective)
General reasons for provocation
Extreme Assault or Battery upon D
D’s illegal arrest
Injury or serious abuse of close relative
Sudden discovery of spouse’s adultery
Some courts allow for homosexual advances
Sometime can use provocation even if D kills wrong person by mistake
But not for killing total bystander
Involuntary Manslaughter - Common Law
killing with gross negligence or recklessness
Reckless homicide is involuntary unless extreme enough to count as depraved heart murder
Ex. Gross Negligence: Go to get car fixed, tell them I need to fix brakes soon. Every time I use them they make a loud noise, and I forget what mechanic said, and just ignore them
Murder - MPC
No Degrees

 Homicide that is committed:
• 1. Purposefully or knowingly; or
• 2. Recklessly under circumstances manifesting extreme indifference to value of human life
• *inadvertent risk creation (negligence) cannot be punished as murder no matter how extravagant
Manslaughter - MPC
 Homicide that either
• 1. Is committed recklessly, but w/o extreme difference; or
• 2. Would be murder but for extreme mental or emotional disturbance (EMED) for which there exists reasonable explanation or excuse (from killer’s view)
 EMED (much broader than heat of passion)
• 1. Defendant experienced intense feelings, sufficient to cause loss of self-control, at time of homicide (subjective)
• 2. Must be reasonable explanation or excuse for EMED (objective)
o Includes: personal handicaps but not idiosyncratic moral values
o The question is whether the actor’s loss of self control can be understood in terms that arouse sympathy in the ordinary citizen
o Factors that provoke gravity of provocation (race) are considered, but not ones that reduce self-control (alcohol)
Negligent Homicide - MPC
 Homicide committed with gross negligence
 Ex. People v Hall- ski instructor goes out of control- hits and kills man
Strict Liability - Common Law
No Mens Rea required (Morally innocent)

There must still be a voluntary act

usually these are regulatory crimes with light punishment, little stigma and can usually be avoided with care
Strict Liabilty - MPC
No strict liability in the MPC
Mistake of Fact - Specific Intent Crimes - Common Law
o Mistake of fact is exculpatory if it negates the particular element of mens rea
 If lack specific intent
• Ex. Larceny- if think it belongs to them don’t intend to permanently deprive owner
 If mistaken about nature- not necessarily
• Ex. Guy buys heroin thinking its coke- knew he was receiving controlled substance- doesn’t matter what kind
 Attempt crimes (are specific intent)
• Attempted rape is excusable by unreasonable mistake since its specific, whereas regular rape can only be excused when a reasonable mistake
Mistake of Fact - General Intent Crimes - Common Law
Not guilty only if the mistake was reasonable
Mistake of Fact - Strict Liability Crimes - Common Law
Never a defense
Mistake of Fact - Jurisdictional elements - Common Law
Never a defense
Mistake of Fact - Moral Wrong Doctrine - Common Law
o Intent to commit an immoral act furnishes culpability for the related but unintended outcome
 If unreasonable mistake= guilty
 If reasonable= then must ask if the facts were as the D though, would the act be morally acceptable
• Ex. Regina v Prince- reasonable mistake about girls age, but taking girl from parents is immoral= guilty
Mistake of Fact - Legal Wrong Doctrine - Common Law
If the defendant thought he was committing a less serious crime he can still be convict ted of the more severe crime
Mistake of Fact - MPC
always a defense if it negates the required Mens Rea

if the defendant would still be guilty of some crime if the facts had been as he thought they were, he is guilty of the lesser crime
Mistake of Fact and Rape - Common Law
 Rape= general intent offense
o No specific intent to have nonconsensual sex is needed
o Only guilty if possess a morally blameworthy state of mind regarding female’s lack of consent
 Traditional Law
o Not guilty of rape if entertained genuine and reasonable (objective) belief that the female voluntarily consented to intercourse with him
o Mass and Penn- SL for rape (reasonable mistake no good)
o Most American courts allow for mistake when honest and reasonable
 Like other general intent crimes
o UK- unreasonable mistake is defense as long as negligent not reckless
Mistake of Fact and Rape - MPC
o Only has to be honest mistake
 B/c: if negligent doesn’t meet mens rea
• Mens Rea: to intentionally have sex without consent or knowing that there isn’t consent
o Problem- someone with really sexist abhorrent beliefs wont meet mens rea
Mistake of Law - Common Law
Affirmative defense that is traditionally not accepted as a defense

Direct - I didn't know what I was doing was illegal
Not a good defense

Collateral - I knew there was a law against this, but I didn’t know that I was doing that b/c I didn’t know about that other law
Works for specific intent crimes but not general intent
Mistake of Law - Lambert Rule - Common Law
o 3 elements for negating offense
 1. ordinace punishes omission
 2. duty to act is imposed on basis of status not activity
 3. offense was malum prohibitum (not malum in se)
 & as a result of these factors, nothing to alert reasonable person to inquire law
Mistake of Law - MPC
Must negate the Mens Rea

 Direct mistake allowed if
• Law not known by defendant and never published or not available
• Relied upon official statement of law later to be determined invalid
• If statue specifically says have to know law
• In some extraordinary situations
o Like where prohibited conduct would not alert an actor to the neeed to investigate the law
Must be but for cause
and be the proximate cause
Only for result crimes and basically homicide only
Proximate Cause
o Easily manipulated- just means that defendant deserves to be held liable
 Tendency to push proximate cause further the more despicable behavior
o Must be but-for cause (few exceptions)
o Question: Were the factors that played part in causing harm, factors so unforeseeable, unpredictable, that it is not fair to hold D liable
 Cant be highly extraordinary result
 Was conduct sufficiently connected to death to hold person liable
 Hastening death is still causing death
Direct Cause
Directly caused the harm: shoot him, dies instantly
Sufficient Efficient Causes
Not but-for unless look at it like (if both didn’t happen would the result have occurred)
can still be a proximate cause
Intervening Cause - Common Law
 If 2nd harm was not foreseeable- NG
 Cant have foreseeability without proximate cause
• Buy someone ticket to Iraq hoping he’ll die
o Other people killed for own reasons
o Intervening act of others and V

 If intervening cause is an act that occurs in reaction to the d’s prior wrongful conduct- G unless highly abnormal or bizarre.
• Negligent medical treatment doesn’t intervene (gross does)
• D wounds V- V goes to hospital where maniac runs around killing people NG
o Intended Consequences Doctrine G
 Get what they wanted but not way intended
• Poison taken in way didn’t intend, but intended it was taken
o Dangerous Forces that Come to Rest
 When d’s active force has come to rest in a position of apparent safety
• V leaves house after fight with D. Could have returned, stays out all night
o Free, Deliberate, Informed Human Intervention
 D more apt to be relieved of liability in the case of a “free, deliberate, and informed intervening human agent than in the case of a natural force or the actions of a person whose conduct is not fully free
 Voluntarily, knowing, and intelligent
• Ex. D kidnaps and rapes v- v commits suicide- L
• Ex2. D shoots V- v put on ventilator- asks to be taken off L
o Omission
 Omissions will rarely serve as superseding cause
• V doesn’t put on seatbelt, D crashes car- L
• D father doesn’t prevent someone from beating his kid- beater and father liable
Intervening Cause - MPC
o But-for is required (successive sufficient- if it wasn’t for both wouldn’t….)
o Proximate Cause relates to culpability
 Was he proximate cause (but-for) and did he have level of culpability required
 Unless result too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense
• Common sense and fairness test for jury
• Circumstance where the offense has no culpability requirement (FM) then have to decide whether the actual result is a probable consequence of the d’s conduct
o If actual result is not in purpose or foresight of action then not proximate cause unless
 If actual result is different than what he aimed for or expected and only difference is that it injured different person or caused less damage- still proximate cause
 Involves same kind of harm that he intended or risked as long as not too remote or accidental in accordance to have just bearing- but left up to jury to decide this
6 stage criminal process
o 1. conceive of the idea
o 2. evaluates the idea
o 3. fully forms the intention go forward
o 4. prepares to commit crime
o 5. commences commission of offense (substantial step here)
o 6. completes actions achieving immediate criminal goal
Attempt - Common Law
 When person has taken substantial step, has passed stage of preparation and moved to point of perpetration
Punishment - half of max to one level below
Attempt - MPC
 Taken substantial step (term of art)
Punishment same as actual crime
Attempt - Mens Rea - Common law
must intentionally commit the acts that make up the actus reus of the crime
must commit the act with the intent of committing the crime
Specific intent crime
Attempt - Circumstances - Common Law
 1. Generally- no specific intent needed for attendant circumstances
 2. Some- reckless,
 3. some same as substantive crime
Attempt - Mens rea - MPC
 Conduct= Purposefully
 Circumstances= same as target crime
 Result= purpose/belief (enough that they believe that it will bring about consequences even if impossible)
• D has sex with 19 year old believing she is 15= guilty
 Substantial step and actor’s conduct must strongly corroborate
Attempt - Impossibility - Common Law
• Factual= if had been as person thought, would have been crime
• Legal= not legally possible to be guilty for shooting a corpse b/c not illegal to shoot corpses

 No crime to do that which is legal
Attempt - Impossibility - MPC
 Gets rid of factual/ legal impossibility
 Give discretion to judge to disregard attempt charges when inherently impossible to result in commission of crime that doesn’t present public danger
 But pure legal impossibility is still defense.
Accomplice liability - Common Law
o If a person intentionally assists another in the conduct that constitutes the crime (must actually have helped or encouraged not attempted to do so)

 Assist can be
• Aiding
• Abetting
• Encouraging
• Soliciting
• Advising
• Procuring the commission of the offense
Modern Accomplice Liability - Common Law
o Person with requisite mens rea who assists the primary party in committing an offense
o Does not have to be but-for (but can’t be attempt)
• Assistance (3 types)
o Assistance by physical conduct
o Assistance by psychological influence
o Assistance by omission
 Assuming there is a duty to act
• Allowing someone to kill your kid
Accomplice - Mens Rea - Common Law
there must be an intent to assist the primary

Reckless and negligent - majority if the have the same mental state they are liable, minority no liability

knowingly furbishes something and 3 factors:
 If has inflated prices
 2. If grossly disproportionate amount of sales come from business with that criminal
 3. If provides goods or services for which there is no lawful use (magazine of prostitutes)
Accomplice - Natural and probable consequences - Common Law
 Applicable in several states including CA (NOT MPC)
 Liable for unanticipated crime if reasonably foreseeable
• Therefore don’t have to share common mind state for crime- just for the original crime
• Can be charged for murder then when don’t even have mens rea
Accomplice liability - Defenses - Common law
If the primary party is justified (self defense) then no accomplice liability

If the primary party is excused then there is still accomplice liability (duress)

o If aiding doesn’t have any effect- if crime is never committed- NG in common law

o Not accomplice if member of class of person for whose protection the statute was created
Accomplice liability - Abandonment - Common law
 Must communicate withdraw to principal and make bona fide efforts to neutralize effect of prior assistance
 Or; if just provided encouragement- must just object to it, as long as its not too late to have any effect
Different convictions for accomplices
o Basically they have thrown out distinctions between primary and secondary party and just depends on mens rea
o Originally- only could be convicted of graver offense than principle if was homicide.
Accomplice liability - MPC
o Person is guilty of accomplice if he commits an act “by his own conduct or by the conduct of another person for which he is legally accountable”
 3 forms of accountability
 1. Accountability through an innocent instrumentality
• Must be that except for D’s conduct, X would not have engaged in the conduct
• Must have intended to do act and had mens rea
 2. If law says that conduct is offense
• Aiding and abetting suicide attempt
 3. Accomplice Accountability
• Accomplice
o Must have requisite mens rea
 Solicit,
 Aids, agrees to aid in planning of commission
 Attempts to aid in planning of commission of crime
 Or has legal duty to prevent commission of offense but makes no effort to do so
Accomplice liability - Mens Rea - MPC
 If assists with the purpose of promoting or facilitating the commission of the offense
 Knowingly does not count unless was his conscious object to facilitate commission of offense
 Recklessness/Negligence
• Yes. Guilty if accomplice in conduct that caused result and acted with required culpability for the result
 No natural and probable consequence Doctrine
 Accomplices can be convicted of different offense better or worse and for an offense that they could not have committed (rape of wife)
Accomplice liability - Actus Reus - MPC
o Must purposely aid/encourage actus reus of crime (knowingly aid without intending to promote or facilitate doesn’t count)
o Don’t have to actually have helped (attempt to help counts- and can be charged with attempt to assist- so the attempted charge) (not so in common law)
Accomplice Liability - Limits - MPC
o Cannot be accomplice if they are victim of offense
o Cannot be accomplice if conduct is inevitable incident to commission of offense
 Cant be accomplice for sale of drugs b/c you buy drugs
o Abandonment is a defense
 Must terminate participation before crime is committed and
• 1. neutralize your assistance
• 2. give timely warning to the police of impending offense
• 3. or in some other manner attempt to prevent commission of crime
Conspiracy - Common Law
Inchoate (still in progress, or in early stages)

o 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
o Formed the moment the agreement is made that one will later commit an unlawful act
 No conduct in furtherance is required (except for overt act jurisdictions)
o Does not merge into attempt or completed offense (like attempt and accomplice)
o Also liable for the actual crime of which part they were a conspirator
o If guilty of conspiracy- guilty of any crime committed in furtherance of crime (dictum in Pinkerton says if it is reasonably foreseeable)
 Pinkerton Doctrine- vicarious liability for crimes committed by co-conspirator
Conspiracy - Proof - Common Law
o No express agreement needed. Don’t need to have knowledge of every detail
o Just- each party must be aware of its essential nature
o Hearsay
 Can prove on entirely circumstantial evidence including hearsay
 Can be inferred from evidence of acts, conduct, and circumstances.
Conspiracy - Punishment - Common Law
o Most states treat as lesser offense than the target offense
o Some states – all conspiracies are treated like misdemeanors
Conspiracy - Overt Act - Common Law
o Some states require no overt act
 Many do- but only need any act no matter how trivial that is performed in pursuance of the conspiracy
o Overt act of one is enough to convict whole group
Conspiracy - Mens Rea - Common Law
o Specific Intent Crimes
 Intent to agree; and
 Intend that object of agreement to be achieved
o Cant agree to commit unintentional crime/ no conspiracy if one party is not really agreeing (with cop for example)
o Knowingly
 Knowingly furbishes something
o Conspirator if:
o 1. has inflated prices
o 2. grossly disproportionate amount of sales come from business with that criminal
o 3. If provides goods or services for which there is no lawful use
o Attendant Circumstances
 Some states same knowledge of attendant, some require heightened mens rea
Conspiracy - Plurality/ Bilateral agreement - Common Law
 Cannot have conspiracy if don’t have 2 people who have correct mens rea
o No good if one person is insane or undercover cop
o But can still be convicted if other person let go or never found if enough evidence of your guilt
o Most states use MPC here b/c just one person has to have agreed
Wharton’s Rule
 Cant be guilty of conspiracy if essential part of act is conspiracy (agreement- betting)
Conspiracy - MPC
o A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he
 1. agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime or
 2. agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime
o Punishment
 Same as target offense
o Merge- They merge unless they conspired to do an act that they did not consummate
o Overt Act- Must have overt act unless it is felony of first or second degree
o Knowingly
 Cannot be liable for conspiracy simply for knowing that you are selling someone something to be used for a crime b/c don’t share another person’s criminal purpose.
o Pluralilty
 No plurality requirement- as long as they think they agreed to do it
• This is most all states now
o Structures
 If they know that the person they conspired with conspired with another person to commit the same crime, they are co-conspirators also- not if different crime
o Number of Conspiracies
 One conspiracy if
• Part of same agreement
• Or if part of a continual conspiratorial relationship
o No Wharton’s rule (but doesn’t matter b/c can’t be charged with conspiracy to commit betting and betting
o No Pinkerton Doctrine
Self Defense - Common Law
o Justification defense (morally right)
o Admits that he did everything and it was the sensible thing to do
o Generally affirmative defense (but sometimes burden on state)

o Rules:
o 1. reasonable belief (traditional if unreasonable the imperfect self defense)
o 2. that force is necessary to defend against (necessity)
o 3. Imminent immediate use of deadly force
o 4. And one’s own force isn’t excessive (proportionality)
Self Defense - Retreat - Common Law
o Some jurisdictions don’t allow for deadly force if there is a safe avenue of retreat
o Slim majority of courts- non-aggressors can use deadly force to repel unlawful deadly attack even if can retreat in complete safety
 Must have complete safety and must be subjectively aware of it
 No retreat necessary if d uses non-deadly force
o If initial aggressor- have to retreat. If don’t- imperfect self defense in some places
o Castle Exception
 Do not have to retreat ever in your own home
 Most states don’t have to retreat from co-habitants either
Imperfect Self Defense - Common Law
o Non-deadly aggressor who is subject to deadly force and doesn’t retreat
o Unreasonable belief that justified in killing
 Using deadly force when non-deadly would have sufficed
 Misjudging acts
 Using deadly force for non-deadly force
Self Defense - MPC
o Person 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
o Immediacy
 More lax- immediately necessary- on present occasion (more of necessity less imminent)
o Deadly force
 Firing gun
 Not threat without purpose to cause death even if brandishes weapon
o Permissibility
 Deadly force is permissible when protecting against
• Death
• Serious bodily injury
• Forcible Rape
• Kidnapping
o Aggressor
 Prohibits use of deadly force by person who “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.
• But: if d starts non-lethal conflict, and V escalates into lethal conflict, D can defend himself
o Retreat
 May not use deadly force if know can avoid necessity of using such force with complete safety by retreating
 Not necessary to retreat when in home or place of work
• if actor was initial aggressor
• If attacked by co-worker in place of business
o Imperfect Self-Defense
 Charged with whatever culpability level had at time
• If negligent about whether real threat or not- negligent homicide
• If reckless- murder or manslaughter
Necessity - Common Law

 Some states limit defense to emergencies created by natural occurrences
• Can flee jail to get away from fire, but not from person
 Debatable whether can commit homicide to save people, throw someone out boat to save others. But more often than not- cannot do so
 Limited to saving persons and property
Necessity - Choice of Evils - Common Law
 1. actor must be faced with clear and imminent danger
 2. d must expect, as a reasonable person that his action will be effective in abating the danger that he seeks to avoid
 3. must exist no effective legal way to avert the harm
 4. harm D will cause by violating law must be less serious than harm seeks to avoid
 5. Lawmakers cant have already spoken on issue precluding necessity
 6. D cannot have wrongfully placed himself in situation (hands must be totally clean- not negligent or reckless even)
Necessity - MPC
Choice of Evils

 1. he 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
 3. no legislative intent to exclude conduct in circumstances exists
Duress - Common Law
threat always one person against another- not against property

o Full defense- the coercing party is liable for actual crime

o If act was committee under the following circumstances:
 1. Another person threatened to kill or greviously injure the actor or a third party (particularly a relative)
 2. Actor reasonably believed that the threat was genuine
 3. The threat was “present, imminent, and impending” at the time of the act
 4. There was no reasonable escape from the threat except through compliance
 5. The actor was not at fault for exposing herself to threat
o Ex. Gang membership militate against defense (if voluntarily put self in situation where foreseeable- then no good the defense)
Duress - Threat - Common Law
o 1. Must emanate from human being (break into house to get away from storm is necessity not duress)
o 2. Coercer must threaten to cause death or serious bodily harm “deadly force”
 Threats against property, etc no good
o 3. Threat must be imminent and present- must be threatened as doing it
 Perjury b/c threatened b/f no good unless guy outside with gun pointed
o 4. Family member- sometimes has to be family member
Duress - MPC
o Goes to jury to decide
o Whether threat of force was so “that a person of reasonable firmness in his situation would have been unable to resist”
o 1. Situation
 Can take into account tangible factors like size, age, strength
o 2. Imminence is a factor but not an element
o 3. Acceptable defense to murder
o 4. Threat must be of unlawful force against the person (not threat of death or GBH)
o 5. If recklessly put herself in situation- no defense
 If negligently put herself in situation, only liable for offenses where negligence suffices for culpability
o Not thinking- hanging out with gang- they force them to rob bank- not liable- have to purposely went to take their money
o However- if know they are a gang and do stuff like that (recklessly) no defense
o 6. Imperiled person does not have to be a family member
o 7. Only good for unlawful forces, no defense for vis majors, etc
o 8. Only good when threat is against person, not things
Insanity - Common Law
o Special Verdict: not guilty by reason of insanity
 Requires institutionalization
o Excuse Defense
o Presumption of Insanity
 Burden of proving insanity generally lies with D, but not always
M’Naughten Rule
o Had mental disease or defect at time of the alleged criminal behavior that had one of two results
 1. the D didn’t know nature and quality of what she was doing
• Thought squeezing lemon while choking someone
 2. D didn’t know what she was doing was wrong
• Legal standard- or moral standard
M’Naughten Rule Plus
o M’Naughten plus if D was unable to control his will
 Basically is: if had mental disease or defect at time of alleged criminal behavior and:
• Didn’t know what he was doing; or
• Didn’t know it was wrong; or
• Unable to control his will or conform to law
Insanity - MPC
 At time of crime did they suffer from mental disease or defect that caused them to
• Lack substantial capacity to appreciate criminality (wrongfulness) of his conduct; (cognitive prong) ; or
• Lack substantial capacity to conform conduct to the law (volitional)
Diminished Capacity - Common Law
if allowed

 2 different types
o Failure of proof defense
 Negates some element of crime
 Mental capacity made it impossible for the d to form some mens rea of crime
 Normally allowed for specific intent crimes only b/c there exists lesser offense they can be charged with
o Affirmative Defense
 Rare- extremely unpopular
 Like excuse/partial excuse
 So impaired should not be responsible for what they did
 Like Insanity- except not automatically institutionalized
Diminished Capacity - MPC
o Allows psychiatric evidence in regards to mens rea of any crime as long as there is a lesser offense available for conviction
o Doesn’t allow for reduced sentencing
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