Criminal Law Professor Lawrence Alexander

Problem Set Answer Guide



Required Readings


            Dressler, Chs. 7, 8


            Materials for Problem Set 1, 3d Floor LRC


            Model Penal Code, § 1.12

Problem Set 1


            1.  The legislature is considering passing one of several variations of a statute making it a criminal offense “to purchase or use marijuana with the belief that it has been illegally imported into the United States.”


            1st Variation: The statute further provides that “belief in illegal importation may be presumed by the trier of fact from proof beyond a reasonable doubt that the defendant knew that the substance was marijuana.”


This is a permissive presumption because the jury “may” find…-


Dealing with presumptions: Presumptions are fact that jury has to find.  The standard for elements of an offense is that any fact that is an element of an offense must be proved beyond a reasonable doubt.


Permissive presumption, if you find this fact beyond a reasonable doubt, then you may find this other fact beyond a reasonable doubt.  Relationship between the found fact and presumed fact must be “more likely than not” in order to be constitutional.


The Court says that all you need to have for a constitutionally valid permissive presumption is a connection between the presumed fact and that found fact that is “more likely than not.”  More likely than not is anything greater than 50%.  (Ulster County Case)


            2nd Variation: The statute further provides that “belief in illegal importation must be presumed by the trier of fact upon proof beyond a reasonable doubt that the defendant knew that the substance was marijuana in the absence of evidence to the contrary.”


This is a mandatory rebuttable presumption-i.e if the jury finds one fact, they must find the presumed fact unless the defendant has evidence to the contrary.


Problem with mandatory presumptions:  If the prosecutor proves fact A beyond a reasonable doubt, then the jury must find fact B.  This assumes that whenever fact A occurs in nature, then fact B always occurs, i.e there is a 100% correlation between the two facts. In this case, in order to be true, that would mean that any time somebody was purchasing or using marijuana, that person knows it has been illegally imported.  If this was actually was true in nature, then there would be no harm in making the mandatory presumption.  If, however, it is anything under 100%, then the mandatory presumption forces the jury to find something beyond a reasonable doubt, that is not beyond a reasonable doubt.  Thus mandatory rebuttable presumptions are unconstitutional.


            3rd Variation: The statute further provides that “belief in illegal importation is to be conclusively presumed by the trier of fact upon proof beyond a reasonable doubt that the defendant knew that the substance was marijuana.”


This is a mandatory irrebuttable presumption (or a conclusive presumption).  Unconstitutional.


A, B, and C are the three elements of a crime.  If you prove A and B, you will conclusively presume C.  This is the same thing as just making it illegal to A and B.  I.e. just making A and B the elements of the crime would be the same as making A, B, and then C (by way of a conclusive presumption) the elements of the crime. 


Thus, a conclusive presumption is not a presumption at all, it is essentially redefining the rule, it is substituting the found fact for the presumed fact in the rule.  When you find the found fact, the presumed fact automatically follows. 


            4th Variation: The statute omits the phrase “with the belief that it has been illegally imported into the United States” and provides instead: “It shall be an affirmative defense that defendant did not believe that the marijuana was illegally imported into the United States.”


            Approximately 85% of all marijuana in the U.S. has been illegally imported, a fact that is known by over 90% of users.


This variation is constitutional, the legislature can decide what they are going to have be an affirmative defense. 


It is okay to move something out of being an element of the offense and put a negative sign in front of it and move it so that it becomes an affirmative defense.  It is perfectly okay to require that the defendant prove an affirmative defense.  The prosecutor does not have to prove the absence of an affirmative defense beyond a reasonable doubt. 


If you were a defendant, would you rather have the 4th variation, or the 2nd variation? 


The 2nd variation is more defendant friendly than the 4th.  In the 2nd state, all you have to do is raise a reasonable doubt however in the 4th state you need to have proof supporting your affirmative defense beyond a preponderance of the evidence.  This is a higher burden or proof than just raising an affirmative doubt. 


Why is it a violation of the defendant’s right to be in state #2, rather than to be in state #4 if state #2 is more defendant friendly?  The Supreme Court has made a mess, they have created these doctrines which don’t make any sense and elevate form over substance.  The legislature can’t do what it did in variation #2 because it violates Δ’s right to have every element of the crime proved beyond a reasonable doubt.  So although the Δ is worse off, his rights aren’t violated.  Bottom line, it’s a strange right that doesn’t make you better off.


Coming back to the first variation…Isn’t it a contradiction to tell a jury that it may find something beyond a reasonable doubt, when it is not beyond a reasonable doubt.  Making the best of the Ulster County decision.  Surely that if the defendant falls into the 50% that is innocent, than he will have some credible evidence to produce to show his innocence.  This is not the same thing as shifting the burden of proof to the defendant. 


Burden of proof (which party must establish a fact) v. Burden of production (which party must bring fourth evidence on a particular matter).  MPC places the burden of proof of all sorts of things on the prosecution, e.g. absence of self defense.  The prosecutor however does not have to say that A murdered B, and A did not have self defense, etc.  The defendant must produce evidence that he was using self defense or that he was insane.  He doesn’t have to prove those things, but the prosecutor can rely on a permissive presumption that if the defendant doesn’t say that he was acting in self defense, then self defense wasn’t present. 


            Write a two to three page memo discussing the constitutionality of each of these variations.

            2.  A statute makes it a criminal offense “to operate a motor vehicle recklessly.”  “Recklessly” is generally defined as “consciously disregarding a substantial and unjustifiable risk.”  Another statute provides that “substantial risk” is to be presumed from proof that defendant knowingly exceeded the speed limit by more than 15 miles per hour.  Another statute makes it a general and affirmative defense to any crime -- a “justification” for law violation -- that in violating the law, defendant was choosing the lesser of two evils.  The defendant must prove this affirmative defense by a preponderance of evidence.


            Defendant has been charged with operating a motor vehicle recklessly for driving 55 mph in a 35 mph zone.  Defendant has put on evidence that he was driving over the speed limit because he believed it was necessary to get his passenger, who he thought was having a heart attack, to the hospital as soon as possible.  The trial court has determined that going over the speed limit by 20 mph is a lesser evil than failing to save the life of a passenger, but the issue of whether defendant actually believed the passenger was in such danger and was speeding for that reason must go to the jury.  Defendant argues that the jury must be instructed that to convict, they must find beyond a reasonable doubt that he didn’t have this belief.  The prosecutor argues that the jury must be instructed that to acquit, they must find by a preponderance of the evidence that he did have this belief.


            Write a one to two page memo advising the trial court on how it should instruct the jury.

To prove recklessness, you have to prove that the taking of the risk was substantial and unjustifiable, This burden is on the prosecutor, the prosecutor must prove this is unjustifiable.  If you look at it this way, the defendant is correct.  The burden is on the prosecutor to show that the belief was not unjustifiable.  The problem here is that you have a code that is drafted in an inconsistent way.  In this particular situation, presence of justification is made into a defense, and absence of justification is made into an element.  There is no right answer, what there is, is a substantial conflict between two parts of the Code.  In general the prosecutor’s proof of the elements would be primary over the defendant’s defenses.  Defendant doesn’t have to put on a defense until the prosecutor proves the crime.  This should tell you something about the normal proof of reckless conduct.  The prosecutor must prove a negative that the conduct was unjustifiable which will include proving that the defendant didn’t believe at the time that he was doing something that would have been justified.


Problem Set 2

Involuntary Actions


1) Defendant, who admits intending to kill Victim with a knife, sneaked up behind Victim and drew back her knife.  Witnesses testify that Defendant’s arm then came down rapidly, plunging the knife into Victim’s back, killing him.  Defendant offers evidence that she is afflicted with St. Vitus Dance, a nervous disorder that causes uncontrollable bodily movements.  Defendant testifies that although she intended to kill Victim at the moment she drew back the knife, and never ceased intending to kill Victim, the forward thrust of her arm was caused by her St. Vitus Dance. If her evidence is believed, Defendant can be convicted of murder, which in relevant part is defined as “intentional killing.”


She has the intent and voluntarily pulled her arm back. The rest is involuntary.

·         What if she’s in a cabin on a cruise ship. According to her plan, she pulls her arm back, crosses the cabin to stab someone. The cruise ship pitches and she flies forward and stabs him. Is that intentional homicide? Suppose you’re a juror & you must convict the stabber of intentional or reckless homicide. Which is a more fitting charge? We assume that people have free will. Whatever their intention, until they’ve executed it, it can be taken back. You could argue it’s unintentional b/c she’s not able to take it back b/c something unexpected happened. You could also say she was reckless b/c she’s standing with a knife on a pitching cruise ship – she’s taking a substantial risk. Depending on how we conceptualize the act, there’s always going to be a voluntary act somewhere. The fact that she brought her arm back voluntarily is a voluntary act.

·          If a person knows he’s subject to seizures and it’s dangerous to drive unless he takes medication. He doesn’t take it, starts driving safely and then has a seizure. The car goes out of control and hurts someone. Is he culpable for reckless homicide? Yes. It’s not that the voluntary act he engaged in that was harmful – he was driving the car safely. It what’s happened when he was no longer a voluntary actor that caused the harm.


Deviant causal chain – you intend to do something, you do it, but you don’t do it the way you contemplated it.


Why do we have the voluntary act requirement anyway?

We’re trying to deter people when they act voluntarily. If you cause harm, but you didn’t mean to, we don’t think you’re culpable for the harm you caused, but you’re part of the causal chain. You didn’t act voluntarily. You didn’t have any control of the kind you need in order to have culpability. You need to have choice. If you’re not a voluntary actor, you haven’t done anything on which to blame you. That’s why you can’t be blamed for being certain type of person see Robinson v. CA. You can be punished for taking drugs, but you can’t be charged for being an addict. An addict is a status. The person with the knife who plans to walk across the cabin to stab someone but then gets thrown committed an involuntary act. Getting herself poised with the knife is voluntary. It wasn’t an intentional killing – it was reckless.


What if it’s her plan to stand in the cabin with the knife and wait for the ship to pitch her across the cabin? It actually happens. The difference from the first case is that she has a plan. In the latter plan, she’s incorporated her involuntary action into the plan. You can incorporate an involuntary act into a voluntary plan.


2. (It is 1990 or thereabouts.)  Nancy Reagan has thrown a big party at the Santa Barbara ranch.  Some of her guests are real swingers, and despite Nancy’s known association with the “Just Say ‘No’” campaign, some of them bring drugs.


                The morning after the party, Nancy discovers vials of cocaine on a coffee table.  Once she realizes what they are, she is horrified.  She is not a “morning person,” however, and she decides not to do anything with the drugs until Ron returns from grooming the horses.  When he does return, they call the Sheriff’s office, and deputies soon arrive.  After hearing Nancy’s story, they arrest her for “possession of narcotics” and Ron for “possession of narcotics by an ex-public official.”


                On the evidence presented, would conviction of Nancy and/or Ron violate the Robinson v. California prohibition of status crimes?


Possession is sometimes an act, but normally it’s not an action. It’s a failure to act. MPC 2.01(4), Possession is an act, within in the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. The last part of the definition is the kind of possession we normally deal with. It’s an omission – an inaction. It’s not dispossessing yourself. You have something that was in your control. In this case, it’s in her house. Nancy fails to dispossess herself of it. And she does so voluntarily – she’s not being held down & she’s capable of dispossession. Lots of possession cases consist of an omission.

·         Suppose someone left cocaine in your car. Like Nancy’s case. Cops will say we don’t care who it belongs to, it’s sitting in your car. Remember, you can be guilty if you passively come into possession of something. You didn’t procure it and no one gave it to you. You have the duty on the pain of punishment to affirmatively take some action; terminate your possession. By terminate, it requires doing something with the thing.

·         Can Nancy take her time to get rid of the narcotics? A legal norm that requires you to terminate your possession in a sufficient period is called a standard. It suggests that you have to figure out what’s a reasonable course of action to get rid of the drugs.

·         Crim law has a preference for rules. The principles of legality entail giving people fair notice to know what’s required before they’re punished.

·         If you’re the legislature, how would you draft the following to be better? Possession is typically not a grasping of an item or an act. It’s frequently an omission – a failure to act. The failure is usually a failure to dispossess. That’s something that takes time and effort and neglect of other business. It doesn’t tell you whether it’s okay to answer the phone, or run, or to flush it down the toilet. It doesn’t give you clear notice, but how would you do it better?


Could Ron be convicted of possession by an ex-public official? Assume that the underlying crime of possession is present, can he get an enhanced punishment b/c he’s an ex-public official?

Yes. Robinson v. CA says you can’t be convicted based on status. There’s nothing he can voluntarily to do be an ex-public official. But Robinson v. CA doesn’t prohibit you from putting a status in as an element of the crime. You can’t just punish people for being of a certain status period. There are plenty of crimes which have a status part to the crime. Sometimes crimes committed by public officials carry greater penalties than the same crime carried by non-public officials. Ron’s being punished for possessing the narcotics while he’s also an ex-public official. When the crime relates to status of Δ, it doesn’t violate Robinson v. CA, even when the person can’t shed the status. All that’s requires is there’s a voluntary act element to the crime along with the status.

·         Possession is in fact, a status. What you get punished for is not taking sufficient measures to change the status after you’ve realized you acquired it. Actually, the crime is not really one of possession. It’s really a crime of failure to dispossess. MPC says that’s not really what we’re punishing you for. We’re punishing you for failure to do something once you realize you’re in possession.


3. Baker was convicted of driving 55 MPH in a 35 MPH zone.  He testified that while driving in a 55 MPH zone, he set the cruise control on his brand new car at 55 MPH.  When he tried to slow to 35 MPH, his cruise control stuck at 55 MPH, causing him to violate the law.  In order to convict under the speeding law, the prosecution need not prove that defendant intended to speed or was reckless or negligent about whether he was speeding.  But there must be proof that defendant’s speeding met the voluntary act requirement. Discuss Mr. Baker’s criminal liability for speeding.


Strict Liability crime – you don’t have to prove any level of culpability, but you have to prove a voluntary act; liability without fault.

Is Baker guilty of violating the speeding law?

Baker did a number of voluntary acts before he tried to slow. Those acts lead to the runaway car. By the time he slows down, he’s already violating the law. Baker did something culpable in setting the cruise control. But the statute doesn’t take culpability into account. Is he guilty?


What’s the temporal dimension of this crime?

If you go back far enough, there’s always going to be a voluntary act that lead up to whatever involuntary act occurs.

When does a crime begin?

Normally, we look for a wrongful choice Δ made and we start from there. That’s how we tell the story of the crime. Problem with S/L is you’re not supposed to look for a wrongful choice - it’s irrelevant. If you don’t have a wrongful choice, you don’t have a criterion on which to make a choice, aka where to start the story. S/L is a problem here b/c whenever there’s someone doing something involuntarily, we have no way to decide whether to make that a subpart of a longer story with a voluntary choice or whether to just start the story there. If we’re looking for fault, we’d know – look for the wrongful choice.


S Ct. of Kansas found Baker guilty. Another case in the same court found a person in a similar situation not guilty. Not surprising b/c it’s purely arbitrary. This is an unanswerable question.


Theory of punishment – Formulating the doctrine to only punish the people that deserve to be punished might be costly in that it lessens deterrence of other people, including people who think they can get away b/c the doctrine looks to difficult to prove.


4.  Patti Hearst, wealthy heiress of the Hearst newspaper fortunes, was kidnapped by a group called the Symbionese Liberation Army.  She was held in seclusion for weeks, subjected to severe sensory deprivation and constant threats, and harangued with ideological diatribes on a regular basis.  She gradually grew to identify with the SLA’s causes and to trust its members.  She started accompanying them in their various criminal endeavors, such as robbery, theft, and arson.  She often was armed and alone, with ample opportunities to escape unharmed from the SLA, yet she stayed with them.


            She is now on trial for the crimes she participated in, and she introduces expert testimony to the effect that people subjected to the kind of treatment she received become “brainwashed.” That is, they come to endorse the ideology of their captors.


(1) whether Ms. Hearst’s evidence, if believed, shows that she did not act voluntarily;


MPC 2.01(2) lists involuntary acts. Look at (b). What is it about sleepwalking that makes it not a voluntary act? They’re obviously conscious in some sense. Unconsciously can’t be read literally. Look at (c). Are they involuntary actors? Are they robotic? All of acts called “altered states of conscious.” They’re conscious, but not fully conscious in a normal way.

Assuming the MPC is correct in calling them involuntary actors, is brainwashing the same?

Hearst’s claim is that the fact these criminal values were forced on her should make what she does involuntary. Here’s the problem: Everyone is socialized in various ways, usually very slow. Hearst was resocialized in a fast, intense, pressure cooker kind of way. Why does it make a difference how we’re socialized? There are various ways people get crash course in resocialization. There are lots of situations were people undergo similar types of things voluntarily – cults, monks, marines. The court said Hearst wasn’t an involuntary actor.


MPC treats habit as voluntary. We do lots of things consciously but they’re relegated to a part of our brain automatically by routine, without people being particularly aware of it.


(2) who has the burden of proving voluntariness.


Prosecution has to prove voluntariness as part of the element of the crime.

Assume brainwashing would have counted. Does the prosecutor have to prove that she wasn’t brainwashed? What does the prosecutor do in these situations? Uses a permissive presumption.Look at Ulster County case & permissive presumptions. If it looks like a regular voluntary act, then it is. The reason this works is if we put the burden on Δ to produce evidence of involuntariness (we do this b/c Δ only has the evidence of this), allowing the prosecutor a permissive presumption will pressured the Δ to produce the evidence, that’s if she was really hypnotized. The presumption works nicely b/c if Δ can’t come up with evidence that she’s hypnotized, that a strong inference that she wasn’t hypnotized. Δ’s got all the incentive in the world to bring up that evidence. It’s not a defense; the prosecutor still has the burden of proving voluntariness, but the prosecutor gets a permissive presumption that if it looks like a voluntary act then the jury may infer it was a voluntary act. It’s up to the Δ to produce evidence that one of these special conditions defeats the claim that the voluntary act wasn’t present.  If Hearst produces evidence that she was hypnotized, then the prosecutor must to work to discredit that evidence b/c the prosecutor has to prove beyond a reasonable doubt that she wasn’t hypnotized. Prosecutor has to prove elements of a crime beyond a reasonable doubt and that element of is a voluntary action. Remember the distinction btw burden of proof and burden of production. It’s not a violation of Mullaney to put the burden of producing evidence on Δ. The way you do this is by way of permissive presumption.


5.  People v. Newton (excerpt from the opinion of the court):


            On December 7, 1972, petitioner boarded Air International Bahamas’ flight #101 bound from the Bahamas to Luxembourg.  While on board, the petitioner had concealed on his person a loaded .38 caliber revolver and a quantity of ammunition.  At some time during the flight, the captain became aware of the fact that petitioner might possibly be carrying a firearm.  There is some indication that the petitioner, severely handicapped and ambulatory only with the aid of prosthetic devices, caused himself to be unruly.  The extent to which petitioner was unruly on board the plane, if in fact he was, cannot be ascertained from the evidence before the Court.  Suffice it to say that the captain of flight #101, for reasons best known to himself, saw fit to interrupt the course of the plane which was flying over international waters and effected a landing in the County of Queens at the John F. Kennedy International Airport.  The landing was made at approximately 12:35 A.M. on December 8, 1972.  Officers from the Port Authority Police Department, in response to a radio transmission, went to the runway where the plane, with petitioner on board, was waiting.  One of the officers boarded the plane, approached the defendant-petitioner, and inquired of him as to whether or not he had a weapon.  The petitioner answered that he did have a weapon, which he allowed to be removed from his person. He was then arrested and charged with a violation of §265.05(2) of the Penal Law of the State of New York after his admission that he had no license to possess or carry the weapon in question.  Section 265.05(2) of the Penal Law is as follows:


Any person who has in his possession any firearm which is loaded with ammunition, or who has in his possession any firearm and, at the same time, has in his possession a quantity of ammunition which may be used to discharge such firearm is guilty of a class D felony....


            Write a one-page memo discussing whether Newton committed a voluntary act.  (Consider both the N.Y. statute itself and also the Model Penal Code’s section 2.01.)  Could Newton be convicted without violating the Constitution given the authority of Robinson v. California?


Should the NY statute apply to Newton or is this an involuntary act to end up in NYC? He got on the plane voluntarily with a gun. The problem isn’t whether Newton did something wrong when he got on the plane with gun. You can imagine that a plane might end up in NY for various reasons, including that they found you with a gun and they want to get you off the plane. NY just might be the closest place to do it. On the other hand, the ticket isn’t for NY. Ending up in NY was against his will.


Court held that Newton did not subject himself to crim liability based on a voluntary act. Landing in JFK was merely an interruption of the flight and was not attributable to a voluntary action by Δ. Different result from Baker. The problem is that none of this is material to the NY statute. He didn’t have to go to NY.



Problem Set 3

Exceptions to general rule (no duty to rescue)


1. A, B, C, D, E, F, and G watch V drown in a swimming pool.  A had negligently run wildly around the edge of the pool, bumped into B, who fell into V, knocking him into the pool.  C was V’s lover and roommate, and a good swimmer.  D was a very strong swimmer.  It was the fact that D was at poolside that induced V, who could not swim and was afraid of swimming pools, to get close to the pool’s edge.  E was the lifeguard on duty at the pool, though V didn’t know the pool had a lifeguard.  F, a bystander in the water with a life preserver, tossed the preserver to V, then reconsidered and pulled it out of V’s hands.  Despite his having the life preserver, F could swim well enough to reach the side without it.  G was another bystander who would have jumped in and saved V but thought that either D would do so or that F would save V with the life preserver.


            A-G are all indicted for various forms of homicide in the death of V, either negligent homicide or knowing homicide. They all claim that their omissions cannot be made the bases of criminal liability without offending basic principles of American criminal law.


            In a four-page memo, discuss each defendant’s liability for the death of V, focusing on the act/omission discussion.



- A’s guilty of knowing homicide. A’s negligence knocks V into the pool. That’s the predicate for A’s duty to rescue V. A now has an affirmative duty to rescue V.

- A’s mental state is knowing – A knows that unless he rescues V, V will die. Don’t let the negligence factor in the problem throw you off. 

- Once he has a duty to rescue and A doesn’t discharge it, it’s more than a negligent homicide.

- There’s a difference btw the person who negligently causes a death and the person who negligently puts a person in danger and knowingly lets them stay there.

- Must A know that when you knock someone into danger, you have a legal duty to rescue?

No. Whether you know you have a legal duty is usually immaterial.

·         Must A be aware that he’s the one who knocked V in?
Yes. If you don’t know the facts, even if you’re aware of the law, there’s still no way you can know. There’s a distinction btw knowing the law and knowing the facts of what you’ve done.

·         Must A be aware V is really drowning? What if he thinks V is joking around? What’s his liability then?
It wouldn’t be a knowing homicide b/c he doesn’t know death is going to result.

·         In both cases above, he’s guilty of negligent homicide. The question is whether the homicide can be elevated to a knowing homicide. In order for it to be elevated to a knowing homicide:

o    A must know he knocked V into the pool; &

o    A must know V is drowning; &

o    A has to know he is capable of rescuing V. If he knows he isn’t capable of rescuing him, then he’s not knowingly failing to rescue. He’s not knowingly failing to do something he couldn’t do.

·         What does A need to know about the rescue? What if the duty to rescue takes a huge effort/risk? Must A sacrifice his life’s work in order to rescue?
We have to ask whether it’s physically possible and how much of a sacrifice it will be. With affirmative duties, you’re requiring someone to act and to expend effort, to take physical risk and sacrifice something of value to them.

·         How much should the law should require of A before he’s let off the hook for knowing homicide?
Look at a number factors. Ex. Utilitarian formula – if there’s a huge chance that A’s life will be lost, we won’t think it’s a good idea for A to jump in. Appreciate the number of factors in elevating A’s liability from negligent to knowingly homicide.

·         What if A think it’s going to be an easy rescue but he still doesn’t go in? And suppose he’s wrong; it’s going to be an impossible rescue.
This would be an attempted knowing homicide. The homicide is going to occur whether he goes in or not, but A doesn’t know that. A didn’t actually kill him. He would have died regardless no matter what you did. But you didn’t know that. You thought by not doing anything that the guy was dying as a result of that.

·         Must A be aware (in order to hike up the charge to knowing homicide) his negligence, not his act, was the cause? Do you have a duty to rescue by merely being the cause of someone’s peril or do you need to be the culpable cause of the peril?
Yes, A has to be negligent as well as the cause to have a duty. This bridges over to the liability of B. B is a non-negligent person in this scenario. A is a culpable cause but didn’t know it. In order to elevate A to knowing homicide, we need to say that A has to be a culpable cause to have a duty to rescue. If all you have to be is a cause of peril and A knows he’s a cause, it would be irrelevant to know if A’s negligent or not. A must know about the factual grounds for his duty to rescue. That’s really the only issue with B – he doesn’t know all the facts. A duty to rescue is triggered by culpable causing of peril as opposed to just causing a peril.

In order for A to be guilty of knowing homicide he must:

- A must know the factual ground of a duty to rescue.

- V’s being is the pool is somehow something he did.

- V is in danger and will suffer or die unless he’s rescued.

- A must know he’s capable of the rescue

- The rescue must not be too hazardous or the duty will be extinguished.

*If he doesn’t know one of these factors, he’ll be guilty of negligent homicide.

·       Suppose A doesn’t know one of the above facts, but he’s negligent about one or more of these beliefs. There are two kinds of negligence now: Negligently running around the pool and Negligence in your belief. For every belief you must have to order to be guilty of knowing homicide, you can be negligent in not having these beliefs. There are levels of culpability in btw negligence and knowing: You wouldn’t be guilty of knowing homicide, but you’d be more guilty than someone negligently running around the pool.



·         Is B a cause of V’s peril?
B is a non-negligent causal force. B is the billiard ball hit by A’s cue ball to hit V. B didn’t do anything wrong. If B wasn’t standing in that spot, V might not have fallen into the pool. B is different than A in only one respect.

·         Does B have a duty to rescue?
Yes, b/c B is the cause. He’s not on the hook for negligent homicide b/c he didn’t do anything negligent. However, he could still be on the hook for knowing homicide. Look at the same factors for knowing homicide for A and apply it to B. Everything that’s true about A must be true about B. It may look harsh to put B on the hook, but we have precedent that non-culpable causes have a duty to rescue.



C had a duty to act b/c V and C had status relationship. Clear cases: spouses, parent/children, employer/employee. Once we move outside highly formalized relationship, there are all sorts of status relationships (ex. best friend, frat brother, etc.) Look at need for formality – clear, formal rules for when you’re in a status relationship.

·         What if C thinks he’s married to V, but there’s a technical flaw and the marriage is invalid. He knowingly fails to rescue. What then?
It’s an attempted knowing homicide. He thinks it’s his wife and it isn’t.

·         Alternatively, C thinks he’s divorced and there’s a technical flaw. He knowingly fails to rescue. Is he guilty?
There’s no duty. He’s missing the element of factual ground. He doesn’t know the facts that give rise to the duty. He’s making a legal mistake.



Suppose an Olympic swimmer trains in the ocean everyday. Today, he swims to a buoy and there’s someone who seems to be drowning along the course. A lifeguard sees D swimming out there and assumes D will rescue since he’s such a strong swimmer. D knows people are relying on him to rescue the drowning person. By the time he swims past the drowning person, it’s too late to save him. Does the Olympic swimmer have a duty to rescue b/c they’re counting on him?

Even though the swimmer knows what’s happening and the people on the shore are thinking he’s swimming to rescue to the person, would he still have a duty?  What if D came to the pool with a shirt on that said “Ex-Olympic swimmer. We rescue anyone.” Does he have a duty to rescue?  There’s no crime in being misanthropic. This is a causation issue – a creation of risk. If you want to hang D with a duty, its b/c he caused the peril by getting people to rely on him. V relied on him. D could have induced reliance just by being at the party or taking an action that wasn’t intended by him to rescue but looks to everyone else as if he is. It’s hard to get people not to rely on things we may not want them to rely on us for. People form assumptions about what we’re likely to do, sometimes erroneously and/or unwanted. The non-culpable causes of peril are potentially great.



Does the lifeguard have a duty to rescue? Yes, on a legal duty based on contract.
Does it make a difference that the guests didn’t know there was a lifeguard on duty?

Suppose you contract with someone to do gardening at your house. Your neighbor has a pool & allows kids to play in the pool without supervision. That makes you worried and you tell your gardener, I’ll pay you an extra $.50/hr to look over the fence. If you see the kids in danger, take some appropriate action if something happens. Your neighbor doesn’t know you’ve done this. Your gardener doesn’t do anything to save the kids one day. Does he have a duty? Is he guilty of knowing homicide? What difference does the contract make? Is the contract (legal duty) doing the work or is it the reliance?

There aren’t a lot of cases that involve this type of situation. Think about whether contracts or reliance give rise to duty.



Assume that no one saw F throw the preserver, therefore no one’s induced. What if F throws it and it misses V by a foot then yanks it back. If it had been the pool’s life preserver, we’d get F for pulling it away from V. Does it make a difference whether V actually touched it or could touch it?

Suppose I have some sort of life saving machine. It’s mine. There are a couple people who need it. I see one of them on the machine and all I have to do is plug it to keep it that person alive. Then I realize there’s someone else I’d rather save on the machine. If I leave the plug in, this person would be safe. Do I have a duty by virtue of the fact that I plugged it in and realized it’s the wrong patient then pulled it out? Assuming I haven’t made the person worse off by the fact they had a second of it plugged in. Here’s the danger: Other people will assume you’re in the process of rescuing and they don’t need to help any longer.



[?? Doesn’t go over in class.] The law doesn’t require someone to be a good Samaritan, but allows one to stand by and watch a preventable death.


Problem Set 4



Required Readings


Dressler, Ch. 10; Model Penal Code, § 2.02; and Materials available online in PDF format at



1.  Read the following:




Model Penal Code § 2.02(3)

Culpability Required Unless Otherwise Provided


When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.


Model Penal Code § 224.4

Tampering with Records


A person commits a misdemeanor if, knowing that he has no privilege to do so, he falsifies, destroys, removes or conceals any writing or record, with purpose to deceive or injure anyone or to conceal any wrongdoing.


Hypotheticals: Tampering with Records


Under §§ 224.4 and 2.02(3), would an actor be liable if he:

            (a) removes a record believing that he probably has the authority (privilege) to do so?

            (b) as a joke on a fellow student also working in the registrar’s office, changes the student’s official university grade card to an “F” in criminal law, and shows it to the student?

            (c) surreptitiously changes a student’s official grade to a “B” because he honestly but negligently believes that it had been incorrectly recorded as an “A”?


Model Penal Code § 2.02(4)

Prescribed Culpability Requirement Applies to All Material Elements


When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.


More Hypotheticals: Tampering with Records


Using § 2.02(4) (instead of § 2.02(3)), would the defendant be liable for violation of § 224.4 under hypotheticals (a) through (c) given earlier...?  Would he be liable under the following hypotheticals?

            (d) The defendant surreptitiously changes another student’s official grade from an “A” to a “B,” honestly believing that the “A” grade was probably incorrect but being aware of a chance that it might be correct.

            (e) To earn money for tuition, the defendant surreptitiously changes another student’s official grade from a “D” to an “A.”  He has great remorse over his act but does not reveal the change because he hopes that the change will be discovered by others before any official transcripts are prepared.


Write a one and one-half page memo answering questions (a)-(e).


2.  The Jackal, a notorious political assassin, is hired by the O.A.S., a French terrorist group fighting French withdrawal from Algeria, to assassinate President Charles DeGaulle. The Jackal, now living a life of luxury on the proceeds from his past assassinations, is reluctant to take much of a chance of getting caught, so he says that he’ll either (a) drop a banana peel on a sidewalk that DeGaulle sometimes walks on, or (b) take a shot from the top of the Eiffel Tower in the direction of DeGaulle’s office.  Both acts have a 1 in 1,000,000 chance of killing DeGaulle.  If DeGaulle dies from either, the O.A.S. agrees to pay the Jackal $1,000,000.


            Assume the Jackal does (a), (b), or both, and DeGaulle in fact dies from slipping on the banana peel or from the shot.  Is the Jackal guilty under the Model Penal Code of “purposely” killing DeGaulle?


            Answer in one-half page.


Under the Model Penal Code, yes he is guilty of purposely killing DeGualle because it was his conscious object to cause such a result, and he caused such a result.   .  


Does it make any difference that it is a 1 and a million chance?  No, the MPC does not require that you have used a means making it likely that you succeed.  Are there any limitations?  1 in a million doesn’t get it, what about 1 in a billion?  What do you have to believe in addition to have the conscious object?  You have to have the belief that you are at least raising the odds of the desired result by some finite amount.  Whatever odds there were that DeGualle was going to die, the Jackal increased them slightly.  This is all that you need to have purposely caused the result.


Notes on some MPC terms:  Culpable mental states, purpose, knowledge, recklessness, and so fourth apply to elements of the actus reus.  Different mental states can be applied to different elements of the actus reus.  Actus reus can sometimes be broken down into several elements, conduct, result, and attendant circumstances.  Forget these distinctions for the most part.  It may be difficult to distinguish between conduct and result, etc.  All you really need to care about is what mental state you need for each element of the crime as it is defined. Conduct, result, and attendant circumstance just serve confuse. 


Hypothetical:  What about the case where two people take two computers.  The first person takes the computer and hopes that it doesn’t belong to someone else.  The second person takes the computer and hopes that it does belong to somebody else.  The first person just wants the computer, the second person wants someone else’s computer.  We may think that the second person is more culpable, but the MPC does not make this distinction.  The MPC treats purposely more culpably that knowingly. 


3.  Look at the example from Katz, Bad Acts and Guilty Minds, pp. 165-69 (in the supplemental materials), of the man who killed another man believing the latter to be an evil spirit.  Write a one-half page memo analyzing the mental state in that case under the Model Penal Code.  (Or, alternatively, do a one-half page memo on #6 below.)


How would you characterize this?  What type of mental state would he have under the MPC?  Doe she know he is killing a human being?  This just raises a question of what does it mean when you have one of those views that doesn’t map onto our views in any way. 

He had the purpose of killing that being, and that being was a human being, yet is seems inconsistent to say that he had the purpose of killing a human being or he knowingly killed a human being, or that he even thought he was taking a substantial risk of killing a human being.


4.  Ghouls, Inc., offers $1 million to anyone who can remove a heart from a person without the person’s dying.  Dr. Frankenstein removes the heart from one of his patients, hoping to win the prize, but also believing that the experiment is justified in the cause of advancing medical knowledge.  Alas, the patient dies, as Dr. Frankenstein was pretty certain he would.  Has Dr. Frankenstein committed a “purposeful,” a “knowing,” or a “reckless” homicide as the MPC defines those terms?  Who has the burden of proof regarding whether the experiment is justified?  Answer in a one-half page memo.


This is an example of a knowing homicide.  Practical certainty equals knowledge.  The patient died as Dr. Frankenstein was pretty certain he would.  Purpose has to do with not how great the risk is, but what was the reason for undertaking the risk. 


If you were practically certain that you would conduct a result or that you were practically certain that your conduct was forbidden then you are said to have knowledge.  If you have less than this, you may be reckless.  Knowledge and recklessness are on a continuum.  Both knowledge and recklessness involve an assessment of the risk you are taking. If you are practically certain, then you have knowledge.


Who has the burden or proof whether or not the experiment was justified?  In the MPC absence of justification is the prosecutor’s burden. 


When you are not at the level of knowledge, when the charge is recklessness, who has the burden of proving absence of justification?  The prosecutor must prove that the risk is unjustifiable.  If you are charging knowing, in most jurisdictions, the burden of proving justification shifts to the defendant.


Knowing and reckless is not just a line, the distinction also switches the burden of proof.


5.  Thelma and Louise agree that if the next guys they pick up turn out to be jerks, and if they don’t inherit big money in the meantime, they will go on a robbery spree in order to be independent of men. Their agreement is overheard by a cop, and they are arrested for conspiracy to commit robbery.  Conspiracy requires an agreement to commit a crime “with the purpose that the crime be committed.”  Are Thelma and Louise guilty if their agreement expresses their true purposes?  Compare Thelma and Louise to Roger, who enters the Metropolitan Museum of Art to admire the collection, but vowing that if he sees an Andy Warhol there -- which he believes is highly unlikely -- he will steal it.  Is he guilty of the crime of burglary, defined here as “entering any building with the purpose of committing a felony therein”?  And compare Thelma, Louise, and Roger to Agnes, who points a gun at Sam and says, “Your money or your life,” intending to shoot him if he fails to give her his money, but hoping and believing that she’ll get the money.  Is she guilty of “assault with intent to rob” or “assault with intent to kill”?  Answer in one page.


2.02(6) Requirement of purpose satisfied if purpose is conditional.  Two aspects to this section that you should keep in mind:  The fact that they have the purpose of committing a robbery only on the occurrence of a condition does not negate the fact that it’s their purpose. 


Unless the condition negatives the harm…You don’t have the purpose to do something illegal if the condition of your purpose would render the act legal.  For example, if it is your purpose to attack Oscar, only if he is attacking a third person with deadly force, the condition negatives the criminaility of the purpose.  Essentially your purpose is to do something not criminal because of the condition.  It can be quite far reaching.


Roger: Andy Warhol:  Roger would be guilty of burglary, it doesn’t seem to matter how unlikely it is that the painting is there.  This illustrates just how far reaching this is.  The possibility can be infinitesimally small, and yet still inculpatory.  


Agnes, “your money or your life”:  Assault with intent to rob or assault with intent to kill?  Does she have intent to kill or intent to rob?  As long as the robber is not bluffing, then he will be guilty of having the purpose to kill.  If the robber thought the chances were remote, then he would have the purpose.  So Agnes would be guilty of both crimes because she has the requisite intent. 


6.  (Alternative to #3 -- one-half page)


Question: Has defendant in either case “knowingly” committed actus reus?


Case 1


Statute: “It is illegal to smuggle A, B, C, aka ‘heroin.’”


Defendant believes:


            (1) He has X, Y, Z.

            (2) It is illegal to smuggle X, Y, Z.

            (3) The street name for X, Y, Z is “heroin.”


In fact:


            Defendant has A, B, C.


Case 2


Statute: “It is illegal to smuggle heroin, which is chemically A, B, C.”


Defendant believes:


            (1) He has X, Y, Z.

            (2) X, Y, Z is heroin.

            (3) It is illegal to smuggle heroin (X, Y, Z).


In fact:


            Defendant has A, B, C.


The way the statute is worded it is easier to convict the defendant under statute 2 of smuggling heroin.  In case number 1 however, the statute makes it illegal to smuggle A, B, C.  He does not believe he is smuggling A, B, C. 


The purpose of this is just to get you to concentrate on what it is that you have to know.  In both cases the defendant has made a series of mistakes, though he believes he is doing something illegal, and he is.  His ultimate belief that he has an illegal substance is correct, although he gets there through mistaken beliefs.  If you change the statute, his mistaken belief gets him off.  Under statute number 1, did he knowingly smuggle A, B, C?  No, he did not.  He thought he was smuggling X, Y, Z, but he doesn’t knowingly smuggle A, B, C.  Under statute #2, did he knowingly smuggle heroin? Yes.  What is the average criminal on the street going to be aware of?  The chemical structure, or the street name?  Statute #1 presumes that you know the chemical structure of heroin a fact which most criminals will not know.  Most criminals will know the street name.  So craft a statute like statute #2.  


Problem Set 5


Required Reading


No new assignment except materials available online in PDF format at


1.  Dr. Mad, weird physicist, likes to watch the effects of dropping heavy objects off tall buildings.  He drops a bowling ball off the Empire State Building during lunch hour, believing it to be practically certain that the ball will kill one or more people below, though that is not his aim.  He believes the risk is justified in the name of science.  His colleague, Dr. Dumb, who assists him in dropping the ball, is unaware that the ball might strike anyone (all he can see from up top are tiny things that look like ants).  Miraculously, the ball hurts no one.  There are crimes on the books of reckless endangerment of others and negligent endangerment of others.  Recklessness and negligence are defined as in the MPC.  Are Drs. Mad and Dumb guilty of those crimes?  Answer in a one-page memo.


Dr. Mad- Guilty of recklessness.  He has to be conscious of the risk he is taking.  He must be conscious of a substantial and unjustifiable risk that the element was either present or will result from his conduct.  What was the risk here?  How big was the risk?  He thought it was a really high risk.  What was the actual risk? 0.  The actual risk was 0 because the ball didn’t hit anybody.  Given the state of the world at the time he dropped the bowling ball, it would not hit anybody, although Dr. Mad did not know this.  Had the ball hit somebody, the actual risk would be 1.  When we refer to risk, we are not referring to actual risk.  Actual risks don’t exist in the universe.  In normal human affairs something is either going to result or it is not going to result.  Risk represents an estimate of how the world will turn out from a standpoint of somebody who has limited knowledge.  Risks are calculations from somebody’s point of view given the information that he has.  Dr. Mad, given the information from his point of view thinks that if he drops the bowling ball, it will hit somebody.  It turns out that the risk was much lower than he thought.  What is relevant for recklessness?  The risk that Dr. Mad thought he was taking or the actual risk.  The risk he thought he was taking.  He is reckless regardless of whether or not the bowling ball hit somebody.  Does he have to believe that he is taking an unjustifiable risk?  No.  The question of whether or not something is justifiable is a matter of law (i.e. it is up the judge or jury to decide).  It does not make a difference whether or not the defendant thinks something is justified.  All he has to do is avert to a risk that the law deems is substantial and unjustifiable.  He need not avert to the risk being substantial.  For instance he does not have to think, “there is a 98% chance this will hurt somebody, that is a substantial risk.” 


Suppose that Debra likes to play Russian Roulette with the passers driving by her house.  As the drivers go by, she pulls the triggers without them being aware.  What is the risk that she would think she is imposing on the other drivers? 1/6.  We assume the risk is unjustifiable, but is it substantial?  What about a gun with 100 chambers?  Is she still reckless?  Relationship between substantial and unjustifiable.  Seem to be two separate critieria.   What she is doing is highly unjustified, but no matter how many chambers the gun has, no matter how small the risk is, it is always unjustifiable.  We are justified in imposing certain risks on others all the time.  On a certain level they are justifiable, for instance driving your car.  Risk getting in a car accident, but justified by benefit of transportation.  No matter how many chambers we put in the gun, it is still risk taking we don’t want to occur.  Despite the way the MPC is worded the substantiality clause is not doing any work, the unjustifiablity component is doing all the work.  What kind of risk will be justifiable will vary with the reasons for imposing it.  Professor thinks it’s a waste of a word. 


What about somebody who obeys all traffic rules and drives safely, but drives around town endlessly without purpose?  Is this person reckless?  What about the Jackal?  He just drives around hoping DeGualle will walk in front of him.  It is certainly purposeful.  What is his justification though?  He wants to kill DeGualle.  It is really no different from Debra with a lot of chambers in her gun.  Function of the degree of risk and the reasons for imposing it.  What risk do you believe you are imposing and why are you imposing it?


What about someone who takes a justifiable risk, but he repeats it day after day after day.  If he calculates what are the chances that he is going to have an accident someday, though the risk is small for any particular trip, the risk of having an accident over the next 40 years is pretty high.  How should we think about repetitive risks where each individual risk is justifiable?  For instance, an automaker makes a car and the odds of any car having a defect that will cause injury or death to a passenger are tiny.  If you sell a million cars, the odds that one of them will have such a defect are quite high.  How should we think about that kind of repetitive risk taking?  Professor thinks it is a mistake to try to aggregate these things.  If it is reasonable to take the small risk each day, or with each unit, then it is justified.  No reason to aggregate. The fact that eventually something will go bad, doesn’t mean the manufacturer is reckless.  36:00 


Dr. Dumb-Thinks that he is not taking a risk.  Dumb people do dumb things; does this mean we should criminalize dumb behavior?  Telling someone not to be dumb and not to do dumb things does not change their behavior.  We are stuck with the information and beliefs that we have.      


2.  Ralph’s speedometer shows him to be driving at 80 MPH, which he believes is quite risky.  Nevertheless, he maintains his speed so he can get home in time to watch the Padres.  In fact, however, his speedometer is broken, and he is only driving 55 MPH, a safe speed under the conditions.  Is he guilty of the crime of “reckless driving”?  “Attempted reckless driving”?  If he has an accident and kills someone, is he guilty of “reckless homicide” Answer in a one-page memo.


Recklessness is based on his mental state and not the actual circumstances.  He is like Dr. Mad when the bowling ball doesn’t hit anybody.  Ralph thinks he is creating a higher risk than he is.  Recklessness is being conscious of a risk.  Since, Ralph is reckless if he has an accident and kills someone, it will be a reckless homicide.


One kind of case where you can have attempted recklessness.  The person has not yet engaged in the reckless conduct, but is about to.  A person who has drank a lot of alcohol, and as soon as he drives his car out of the parking lot he thinks he is imposing an unjustifiable risk on others.  If he gets in his car and starts it, it can be considered attempted recklessness. 


3.  Frankie loads her .45 with the purpose of killing Johnny.  She gets into her car and heads for Johnny’s house.  She is so preoccupied with the killing of Johnny that she fails to notice cars braking ahead of her.  She plows into the back of a car killing its driver, who happens to be Johnny.  Is she guilty of negligent homicide, reckless homicide, knowing homicide, or purposeful homicide?  Answer in one-half page.


Not guilty of knowing homicide, because she didn’t know it was Johnny.


Not guilty of purposeful homicide, because she didn’t drive with the purpose of killing Johnny.  Can you think of a scenario where Frankie would be guilty of purposely killing Johnny via a car accident?  If she knew Johnny wasn’t at home and she thought driving would increase the risk, however slight it is, of hitting Johnny.  She would also be guilty of purposeful homicide if she thought an auto accident en route to Johnny’s house was another way of killing Johnny.  She would have to have as her conscious object increasing the risk of killing Johnny in two ways, either with the gun, or with the car.


Under what circumstances could this be a reckless homicide?  The problem with her driving is that it is not really a justifiable risk since she is going to kill Johnny.  She is not driving to the store to get milk, she is driving to commit a crime.  This suggests that any person in the act of committing a crime could be considered reckless.  How would you draw the line? 


4.  Jon lies in wait, intending to shoot June.  He sees a person whom he takes to be June and fires.  Analyze his culpability for homicide:


            (a)        if the person he sees and kills turns out to be Joan rather than June.


Jon is guilty of purposeful homicide.  He intended to kill a human being, and he killed a human being. 


            (b)        if the person he kills is not the person he sees but is rather someone (Jan) in the bushes behind her whom Jon didn’t see or have any reason to know was there.



Answer in one-half page.


Conceptually this can be viewed as an attempted homicide toward June (the person he was intending to kill) and a reckless homicide in the killing of Jan.  The typical law however would treat this as a purposeful homicide.  Jon tried to kill a person, and he killed a person. 



5.  Cal, a courier for the Cali cartel, never asks his superiors what’s in the packages he’s asked to smuggle.  He figures it’s either drugs, money, or weapons, but he doesn’t ask and is never told.  Suppose he is caught smuggling drugs.  Should he be charged with the negligent, reckless, knowing, or purposeful variety of drug smuggling?  Answer in one-third page.


The proper charge is that he knowingly smuggled drugs because he was willfully blind.  Cal represents someone who refuses to ask because he doesn’t want know.  The whole purpose of not asking is that you don’t want to know.  MPC 2.02 (7) Drafting infelicity in the MPC.  How can you believe in a high probability of something existing and not believe it exists. 


Willful blindness notion is a fiction, it is designed by the law in cases where the mens rea required is knowledge and what you have is a highly reckless person.  The law creates this fiction that you know something when you are willfully blind of its existence.  The willfully blind actor is just a reckless actor.  He is taking a chance, but the law uses willful blindness to get around this technicality and convict people of knowingly committing the crime.



6.  Read the case of State v. Williams (child who died of a toothache) in the supplemental materials.  What is the justification for criminally punishing persons who acted as the Williams parents acted?  Answer in two-thirds page.


Negligent homicide, death of their son.  What is the difference between the negligent actor and the reckless actor?  The negligent actor estimates the risk to be low.  The negligent actor estimates the risk to be lower than we think he should.  With a reckless actor we are concerned with the risk he thought he was actually taking.  With the negligent actor we are concerned with the risk he should have known he was taking.  What does it mean that he should estimate the risk to be higher?  There is no real concrete answer to this question.



Problem Set 6

Required Reading

Dressler, Ch. 11, plus material available online in PDF at

            See also MPC, § 2.05


1.         Defendant, 21 years old, has sexual intercourse with a girl 15 years of age.  Defendant, after picking the girl up at a video game parlor, asked her how old she was.  Wishing to impress defendant, the girl replied that she was 19.

            The state in which this occurred has a statute that punishes any man over the age of 18 who has sexual intercourse with a girl under the age of 16.  What are the arguments for and against making the age of the girl a matter of “strict liability”?  Explain what “strict liability” means in this context.  (One page.)


·         Reckless: He is aware that there is a high risk, despite she says she’s 21. He would have to believe the risk were high enough to justify his reasons for taking the risk.

·         Knowing: He had knowledge with respect to her age. He would have to believe with practical certainty that she was underage.

·         What does SL mean here?

o   It means that if she is underage, he’s guilty. It doesn’t matter how reasonable his belief, whether he knew she was underage or not. Or was completely confident that she was overage. It doesn’t make a difference if a reasonable person would believe she was overage (negligence). The prosecutor need not prove any mental state on that element.

o   No mental state is required, no negligence is required.

o   You don’t have to prove the D had knowledge, purpose, negligence, or recklessness. D’s attitude is immaterial. It doesn’t count.

·         What are the arg’s for?

o   To protect minors

o   Deterrence

§  It will deter conduct that surrounds it.

§  It will make it harder for younger girls to get a date.

§  If there’s a risk, you are just going to stay farther and farther away from the possibility

·         You might view SL as a conclusive presumption of culpability

o   We’re not requiring you to prove culpability

o   Innocence will not allow you to escape punishment

·         Lots of people think SL is an evil thing because non culpability does not guarantee you escape from the conviction.

·         With SL we make sure that the guilty don’t go free, by making it possible for the innocent to also get punished.


2.         Defendant pharmacist is accused of selling a mislabeled drug, in violation of the state’s penal code. Defendant wishes to present evidence about the care she took to avoid mislabeling.  Should that evidence be material under the state law?  Explain.  (One page.)


One of the ways that SL produces deterrence is that since you know that ordinary reasonable care isn’t going to get you off, you take much more care, but notice that in the area of sex with young kids, we don’t think of it as a big social harm as a massive deterrence. But, what about the area of drugs? We are trading off the cost of the drug with the harm from a mislabeled drug. But, just as there can be too little care, there can be too much care. Too much care is not good. The cost of the drug will go up. If you guarantee that this drug is not mislabeled, then it will become very expensive. You have to balance it.

If this is a conclusive presumption of insufficient care, no matter what care the pharmacist engaged in, then the pharmacist will quit the profession or raise costs considerably to ensure against getting fined.


3.         The state makes burglarizing any building that is used as a place of habitation a more serious crime than simple burglary.  Defendant burglarizes Joe’s Tavern after it closes, not realizing that Joe lives in a room in the rear of the tavern.  Should he be convicted of simple burglary or the more serious type of burglary?  Explain.  (One page.)


·         He is taking a small risk, but an unjustified risk. (Like a 1,000 chamber gun with one bullet.)

·         If you know that there is some finite chance that a business will turn out to be someone’s home, and you know you are doing something wrong by breaking into the business, then you are conscious about breaking in.

·         When you commit a crime and you know that there is a small chance of another crime occurring, you are reckless with respect to that other harm.

·         When we gauge how serious a crime is, one of the things that we should take into account is the set of ancillary harms that might result from that crime, including that a business will turn out to be a residence. Therefore the culpability of burglarizing a business should already include within it, the possibility that the business will turn out to be a residence.

·         If we made this a matter of SL, we could just say, when you commit one crime (like burglary of a business) you enter into a lottery and so you get a lottery ticket for a more serious crime (lottery of a residence). In this case, the burglar “won”. He gets the extra punishment in the lottery.

o   He’s entering the lottery voluntarily because he is doing something he shouldn’t be doing to start with.

o   When you attempt a crime, if the crime succeeds, you get the bigger punishment.

o   You pull the trigger and the victim dies, that’s one result from the lottery. If the victim has a Bible in his pocket that deflects the bullet, then he lives, then it’s a different result.

o   You try to commit a crime, if you succeed, you get the bigger punishment. If you don’t succeed, you get the lesser punishment.

o   Should the punishment turn on luck? On how things turned out? Why would you design a system that has a lottery element in it? It makes committing the base level crime more dangerous for you.


4.                  Defendant drives his brand new BMW off the lot and suddenly the accelerator sticks,

causing him to ram another car.  He is charged with “unsafe operation of a motor vehicle.”  Should he be convicted?  Explain.  (One page.)


·         Should unsafe operation of a motor vehicle be a SL crime?

·         Why should we make this a SL?

·         The courts would be overwhelmed if we allowed everyone to argue that they didn’t have a culpable mental state.

·         We know we are going to get some innocent people with SL. We’ve designed the doctrine that even if you are culpable we’re going to get you.

·         The problem with SL is that we are not looking for a culpable act to start the story. We will always find a voluntary act.

·         This is just like the Baker case.



Problem Set 7


Required Readings


            Read Dressler, Ch. 12; materials available in PDF online at


            1. Look at the chart on p. 308 of the Robinson casebook, i.e., the chart on p. 728 of the Stanford Law Review article, which is the first page of the attached materials.  Write a two-page memo explaining the logic of the chart.


            2.  Write a one-page memo analyzing the cases in the materials available on the 3rd Floor of the LRC -- Morgan and Short -- in terms of the chart.:

1.    Morgan: The D’s made a mistake about Mrs. Morgan’s consent. What kind of mistake would negate the crime? If you are reckless, if you believe she’s consenting but that you are aware that there is a high risk that you are wrong, then you should desist. The court held that recklessness was the standard. They didn’t go as far as to say that you had to have knowledge, where any mistake would negate the crime of rape. They were clearly reckless.

2.    Short: What was the standard that the court found for mens rea on the question of consent in US v. Short? In Morgan you proved a reckless mistake, in Short the court found that the requirement was merely a negligent mistake. Even if short A, believe he was getting consent, and B didn’t even cross his mind that he was possibly wrong. He estimated the risk to be very low. He could be negligent in believing that. The dissent in Short says “whatever the standard ought to be, it should not be for assault with intent to rape.” He believes that the victim here is consenting. Does he have the intent to rape her? If he had carried through and it was true she was not consenting, then he would have raped her. But, dissenting Judge says that he hasn’t gotten to that point yet. He intends to have sexual relations with her, but not without her consent. (Doing something with the intent of doing something in the future.)

a.    For all we know short probably held 2 diff. intentions: 1. The intention to have sex with this woman who was not consenting 2. The intention to have sex with her if she was consenting. He could have these two beliefs at the same time. The intent to have sex with someone who is consenting is not a criminal intent. If you couple that intent with a mistake of fact, and you get an illegal conclusion (I can have sex with her because she is consenting. You have intent to have sex with her.).



            3.  Dan, using a bow and arrow, kills his sweetheart, Polly Von, believing her to be a swan because “she had her apron draped about her”(in the words of an old Joan Baez folk song).  Assume the following laws in the jurisdiction:


            1st degree homicide = knowingly or purposely killing a human being = life imprisonment


            2nd degree homicide = reckless homicide = 1 year imprisonment


            3rd degree homicide = negligent homicide = one-half year imprisonment


            Swanicide = killing a swan = one year imprisonment


            Attempted swanicide = attempted killing of a swan = one-half year imprisonment


Under Model Penal Code, § 2.04, of what should Dan be convicted?  Answer in one page.



a.    Why isn’t he guilty of swanicide? There is no dead swan. Is he guilty of attempted swanicide? Yes. We know we could get him for attempted swanicide.

b.    Assume he thinks there is any finite risk that this isn’t a swan and it is a human being. What’s his justification for taking the risk?

c.    2.04(2) allows the prosecutor to charge him with some homicide. At trial the D makes a plausible sotry to the jury that I thought I was killing a swan. The prosecutor can ask for a verdict of degree of homicide that will coincide with the thing he confessed to on the stand. The mistake you made that negates the mens rea shows that you would’ve been guilty of something else.

d.      2.04(2) is a mechanism for rough justice. You come in and say “I thought it was a swan!” Then they get you for swanicide.

e.       Look for degree of homicide closest to what the actor thought he was mistakenly doing.  Here, assuming the facts were as the actor presumed them to be, he would have killed a swan.  Since Swanicide is one year of imprisonment, section 2.04(2) of the MPC states that the actor can be charged with a crime that equal or lesser than the crime he committed.  Here the closest crime would be reckless homicide.

f.       There is also another way to reach this conclusion.  If the prosecutor can show that the defendant assumed any finite amount of risk that it was not a swan but a person, then a case can be made for reckless homicide.

g.      Mistakes are not defenses, they are just denials of mental states. 

h.      All you need to know about them can be found in 2.01 or 2.02 and their descriptions.


Problem Set 8

Required Readings:

Read Dressler, Ch. 13; MPC § 2.04.


1.  The defendant, a sailor from Baghdad, committed an act of sodomy while his ship was docked in London in 1836.  In his own country, this act was not considered a criminal offense.  He claimed that he was ignorant of the fact that sodomy was a criminal offense under English law, and the jury believed him.  If English law were governed by the Model Penal Code provisions on mistake of law and the U.S. Constitution, what result? Write a one-page memo discussing the problem.


·         §2.04(3): A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (a) the statute or other enactment defining the offense is not known to the actor AND has not been published OR has not been otherwise reasonably made available prior to the conduct alleged.

·         England publishes their law. Why would it not be published?

·         Should he get and read all the criminal statutes of England before he docks?

·         If CA makes a new criminal statute, do they have to publish it in each courthouse? What if they just keep it in their archives? There is no clear answer.

·         We want people to obey the criminal law and it’s going to be hard to get them to obey the criminal law if they are not on notice.

·         We do not expect well socialized conscientious people to read on criminal laws of every jxds they go into.

·         It would not be a good use of a citizen’s time to read every state’s penal code.

·         We do not expect parents to master medicine to treat their children.

·         We don’t want to get cures that are worse than the disease. We don’t want to say that people ought to know all these things. We will live in a messy world where people will live this way. There is no cure.

·         Have you been to a foreign country? Did you read the criminal statute before you got there? Why not?

·         Should the sailor somehow know the law of England?

·         In general, on the matter of whether something is an offense the mental state required is strict liability. The fact that something is against the law is not itself an element of an offense.

·         How does Lambert work here?

o   The Lambert case boils down this: something that is treated as a crime is so out of the ordinary that we don’t expect anyone to know it. So, it seems unfair. A violation of due process of law when someone is ignorant of that statute.

o   The bizarre law circumstances – the Lambert case applies.

o   We’re willing to excuse the defendant in Lambert, but why not the defendant in this problem?

·         The problem comes in 2 areas:

o   Clear serious wrongs – there may be a statute on the books, but the person doesn’t know about the statute, and the act itself doesn’t cry out that it is illegal. Stoning to death – we think of it as a per se wrong. Other cultures think of it as not per se wrongs.

·         If the law has been published, then you are out of luck if you violate the law.

·         We don’t want to make people have to read and understand every law of a new area. If someone is going to Disneyland in Florida, we don’t expect that person to study the Florida Penal Code.


2.  Defendant, an operative of the C.I.A., is uncertain whether breaking into the office of a physician and looking through her files, which he had been asked to do for the Agency, is legal under some national security exception to normal laws against breaking and entering.  His superior in the C.I.A. assures him that this is a “legal” break-in.  He later comes across the U.S. Attorney General at a party, who also assures him over drinks that what the C.I.A wants him to do is legal.  Defendant then performs the break-in and is arrested by state police.  In fact, the break-in was not legal under any national security exception, though some break-ins are.  At his trial he pleads mistake of law and offers proof of the above facts.  Under the Model Penal Code, is he entitled to the mistake of law defense? Write a one-page memo.


·         MPC §2.04(3)(b)

·         He got advice over a couple of martini’s.

·         The opinions of the atty general – actual official formal opinions published.

·         Cocktails at a party are probably not going to be treated that way. You should NOT rely on advice over cocktails.

·         These formal orders are going to turn out to be erroneous. You can also get erroneous statements from a statute. How does a statute turn out to be wrong? It may be held unconstitutional. Or something can be overturned later in time. It can be amended. It’s either a correct interpretation or it’s an amendment. It’s not incorrect.

·         What about section ii (judicial opinion)? It’s not the State Sp. Ct. Whatever the state sup. Ct’s interpretation is, is the law. If a higher ct. throws out a lower ct.s opinion, they amend the statute.

·         The upshot is that it is very difficult to have a conviction thrown out on grounds of criminal law itself. Even when we take all the conditions in A and B together. If the statute is published, you’re in big trouble, you don’t get relief under A, unless it’s a bizarre law like Lampert. And if you rely on some official interpretation you might be able to get a reversal, but it’s going to have to be reasonable reliance and it’s got to be formal or official interpretation.


3.  Lady Eldon failed to declare her French lace at American customs.  She mistakenly believed that because of the U.S.’s free trade policy, the lace was not subject to duty.  It was, however, though most items are not dutiable. The Customs offense proscribes “knowingly failing to declare any dutiable item.”  How must this be construed to afford Lady Eldon a defense of mistake of law?  Who should bear the burden of proving or disproving the mistake?


·         Who should bear the burden of proving that particular fact?

o   The prosecution. The prosecution has the duty to prove every element of a crime.

·         Under what part of §2.04 does this kind of mistake of law fall under?

o   (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.

o   What does this ignorance of law negative here?

o   If she didn’t know it, then it negatives her knowingly having to declare a dutiable item.

o   Ex: Some guys rent out an apartment, and put up some wood paneling. Later they have a dispute with the Landlord. So, they want to terminate their lease. They think we’re not going to leave the L with this nice new paneling. So they rip off the panel. T’s were charged with destroying L’s property. The law is that if you put up paneling, there is a doctrine in property called fixtures and emblements. Under this law, the fixtures become the property of the Landlord/lessor. T’s are not guilty of the crime, because they did not know that the property belonged to the other. The ignorance of the law negated the mens rea.

·         The Customs offense proscribes “knowingly failing to declare any dutiable item.”

o   Lady Eldon did not KNOW what she was doing was a crime.

o   Her mens rea is negated because she did not know.

·         2 statutes:

o   Knowingly failing to declare any dutiable item. (She doesn’t get convicted.)

o   Knowingly failing to declare lace. (She get’s convicted.)

§  Both are logically the same, but there is a different result to Lady Eldon.

§  It looks like an arbitrary distinction, but it turns out to be different.

§  If there was a statute that said “you can’t knowingly take down wood paneling” then they would get convicted.


4.  Taafe was caught smuggling marijuana, a crime. Taafe testified that he was merely an underling in the smuggling ring, and he thought what he was smuggling was currency, not marijuana.  Smuggling currency is not a crime, though Taafe thought it was.  If the jury believes that Taafe did not know that what he was smuggling was marijuana, but mistakenly believed that it was currency and that smuggling currency was a crime, of what should it convict Taafe and why? What would you need to know about the marijuana smuggling statute? What if Taafe knew he was carrying marijuana but thought he was in Alaska, where that is legal, when in fact he was across the border in Canada, where it was not? Write a one-page memo.


·         You need to know the mens rea on the question of what’s in your possession. Do you have to know its marijuana? You need to know if there is strict liability.

·         You also need to know if the statute proscribes smuggling marijuana or smuggling contraband.  If the statute says smuggling marijuana, then his is not guilty.  If the statute says smuggline contraband then he is guilty because he thought he was smuggling contraband and he was actually smuggling contraband.

·         Suppose it is “knowing”. Would he be guilty of smuggling marijuana?

o   Can he use §2.04(2)? No.  There is no offense for smuggling currency.   

·         Suppose that this was a statute that prohibited knowing the smuggling of contraband. Would Taafe be guilty of smuggling under that construction of the law?

·         If the statute require recklessness instead of knowing. So he thinks he’s smuggling one thing, but he is smuggling something else. Can he be charged with recklessly carrying marijuana?

o   He might be awfully certain its currency, but if he thinks that there is any risk that what he is doing is smuggling marijuana, then he would be acting recklessly. He is taking an unjustifiable risk by taking a chance even if it is very small.

o   Is attempted recklessness the same thing as recklessness?

o   It is reckless either way.

·         What about the last question (Alaska)?

o   Mistake of jurisdiction – this is treated like strict liability. You will be held to whatever laws wherever you are found committing an act.

o   What if you were driving to Vegas and you just couldn’t wait to gamble any longer, so you start gambling in where you think Nevada is, but it’s California. Then you are in trouble in California.



Problem Set 9


Required Readings:


            Dressler, Chs. 14-15; MPC, § 2.03.



1.  Satanic Cult sets up 100 rifles sticking through an opaque screen, each pointed at a single spot on the other side of the screen.  It loads 99 rifles with blanks and one rifle with a live bullet.  It invites 100 individuals who are applying to be members of the Cult to take part in the following grisly initiation ritual:


The 100 each take one of the rifles.  A hapless victim is kidnapped and chained to the spot where the rifles are aimed.  The 100 are then told to pull their triggers in unison.  If they do, they will be admitted to membership.  If they don’t, they won’t.  The Cult is indifferent about whether they become members.  They all do pull the triggers when told to.  The victim dies from the one live bullet.


            It is impossible to determine from ballistics which rifle held the live shell, and there is no other way to determine this.  Assuming that there is insufficient collusion to make the 100 members into joint participants, should we prosecute all for “attempted homicide” or “reckless endangerment” and none for “homicide,” or should we prosecute all for “homicide,” and if so, for knowing homicide or for reckless homicide?  How should the causation doctrine work here?


            Write one page.


·         In most cases the penalty for causing a result is greater than the penalty for merely risking the result or attempting to bring it about. The punishment for homicide is greater than attempted homicide. The punishment for recklessly injuring somebody is greater than just being reckless.

·         The MPC treats attempts and successes the same except for homicide.

·         Those who cause the result are treated worse than those who have the same mental state but whose conduct doesn’t cause the result.

·         This problem is to show you how luck is involved.

·         Once you decide to do something reckless, it becomes a complete matter of luck whether your gun had the actual live bullet.

·         We really don’t care who actually caused the result, we just get mad at the endangerment that they caused. (ex: 2 kids throw rocks over the fence. 1 kid actually breaks the window. Most parents don’t care who actually threw the rock. They will usually receive the same punishment.)

·         It’s a matter of not what the actual risk is, but the risk you thought you were taking at the time.

·         It doesn’t even matter here if the organizers of this macabre initiation right, if the organizers lied to the people saying that there was no one behind the screen. What matters is each of them thought he was taking a 1 in a 100 chance of killing a victim. It wouldn’t matter the purposes of recklessness. It wouldn’t matter if there was no victim if they’ve been told this. This makes the actual risk for all 100 zero.

·         Guilty of reckless endangerment


            2.  Mark, a Hertz mechanic, is homicidal.  One day he tampers with the brakes of a rental car so that they don’t work at all.  He does so hoping that, as a result, someone will be killed.


            Dan rents the car Mark tampered with, and as he is leaving the Hertz garage by descending a narrow ramp, he sees Vinnie, his worst enemy, walking on the sidewalk where the ramp enters into the street.  Dan decides not to hit the brakes and coasts into Vinnie, killing him.  Had Dan hit the brakes, they wouldn’t have worked.


            Mark and Dan are charged with causing Vinnie’s death.  What result?  Write one-half page.


·         Both are guilty, concurrent sufficient causes.

·         This is a case of concurrent sufficient causes.

·         If there are 2 sufficient causes of Vinnie’s dying, then neither mark nor dan is a necessary cause.

·         Both Mark and Dan are liable.

·         If Dan is a sufficient cause, then Mark cannot be a necessary cause.

·         If Mark is a sufficient cause, then Dan cannot be a necessary cause.

·         But for fact = necessary causation

o   The D’s culpable act is a necessary cause of the result

o   If the D hadn’t acted that way, the result wouldn’t have occurred.

·         2 causes are equally sufficient to Vinnie’s dying the way he did

·         no matter what dan does, given what mark has done Vinnie will die

·         given what dan does, no matter what mark did Vinnie will die

·         Neither Mark nor Dan is a necessary cause.

·         A and B have a grudge against C and plan to kill him. In the middle of the night A gets up and pours poison in C’s canteen. Later B gets up pours out what he thinks is water and fills it with sand. Later C is in the desert and dies of thirst. C dies of thirst rather than poison. He dies later than he would’ve died since he didn’t take poison. B is going to say I didn’t kill him, I actually lengthened his life. A is going to say I didn’t kill kim, C did.

·         It is rare that one gets truly concurrent sufficient causes like this problem. What you can get is odd things is the sand in the canteen example.

·         Both are concurrent sufficient causes of C’s death.

·         Once A acted, C is doomed. B actually prolonged C’s life by causing him to die of thirst. This only makes a difference if we are going to distinguish b/w homicide and attempted homicide.


            3.  An article in the N.Y. Times, Feb. 7, 1968, stated:


            PHOENIX, Ariz., Feb. 6 (AP) – Linda Marie Ault killed herself, policeman said today, rather than make her dog Beauty pay for her night with a married man.

            “I killed her.  I killed her.  It’s just like I killed her myself,” a detective quoted her grief-stricken father as saying.

            “I handed her the gun.  I didn’t think she would do anything like that.”

            The 21-year-old Arizona State University coed died in a hospital yesterday of a gunshot wound in the head.

            The police quoted her parents, Mr. and Mrs. Joseph Ault, as giving this account:

            Linda failed to return home from a dance in Tempe Friday night.  On Saturday she admitted she had spent the night with an Air Force lieutenant.

            The Aults decided on a punishment that would “wake Linda up.”  They ordered her to shoot the dog she had owned about two years.

            On Sunday, the Aults and Linda took the dog into the desert near their home.  They had the girl dig a shallow grave. Then Mrs. Ault grasped the dog between her hands, and Mr. Ault gave his daughter a .22-caliber pistol and told her to shoot the dog.

            Instead, the girl put the pistol to her right temple and shot herself.

            The police said there were no charges that could be filed against the parents except possible cruelty to animals.


            Were the police correct that Mr. and Mrs. Ault could not be charged with causing Linda’s death? Compare the case of the Aults with that of paparazzi pursuing a celebrity whose car is traveling dangerously fast in order to flee them and crashes, killing the celebrity.  And compare these cases to that of a drag racer whose competitor crashes into an oncoming car, killing both drivers.  Write one page.


·         The D’s behavior is a but for cause. They are causes in fact of the result. But the causal chain running from what they did to the ultimate result leads through.

·         Sometimes the causal chain is unforeseeable in the sense that it is a deviant chain. He doesn’t cause the result quiet the way he envisioned it.

·         One of the problems with these sorts of causal chains is that a death is more or less foreseeable depending on how you define the causal chain. Is it unforeseeable that you will kill someone by shooting a gun at him? No. If you shoot someone and they die from the bullet wound. If you say how improbable it is to kill someone by shooting, it is probable.

·         Sometimes whether it seems likely or unlikely is how precisely you define. If you say death by bullet that’s one way. If you say death by bullet which cuts this important artery, that’s another way.

·         You have one class of causal cases.

·         Were not taking about if the D is the cause in fact.

·         What are we asking now in a causal question? Proximate cause or legal cause.

·         We have this broad class of D’s whose culpable act is a cause in fact, but not all of them according to law are proximate causes. One way you can fail to be a proximate cause is if the way in you caused the result is through one of these weird deviant causal chains. That’s in terms of natural causation. Then there are times that it runs through some other human act. That doesn’t necessarily break the causal chain. For example, when the unibomber gives his bomb to the mailman, the causal chain runs through the mailman. It seems silly to say that that broke the causal chain. That’s what the unibomber wanted. The more difficult cases are when the intervening huiman action is culpable in itself or they are responsible for the result, such as Linda Ault. The Aults actions caused the death. But, Linda made a voluntary choice to kill herself.  The other kinds of cases are when you negligently or recklessly injure somebody and leave them vulnerable to some other wrong doers predation. You recklessly drop someone off in a rough neighborhood late at night. Does it make a difference that the causal chain runs through the bad acts of someone else? You have the cases where the ultimate harm is caused by the intervening actor or culpable actor. So, the question is whether given those human interventions in the causal chain, do we go back to the original cause and charge him for the result?

·         Should Mr. and Mrs. Ault be charged with some culpable charge for Linda’s death? Let’s assume that they were being reckless. Do we want to up the reckless endangering her to recklessly killing her? Imagine if Linda was mentally irresponsible, if she was known to be suicidal.

·         What about the paparazzi who is chasing the celebrity who is trying to flee them.

o   Assume the person driving the car is driving the car too fast.

o   They are driving fast to get away from the paparazzi.

o   Are the paparazzi responsible for the celebrities death?

·         What about the drag racer?

o   Your competitor and some stranger get killed. Should the suriving drag racer be responsible for the 2 deaths?

·         Do those intervening causes break the causally link?

·         It’s going to be hard to answer these questions, if we don’t know why we care.

·         We could deem the paparrazi culpable for chasing celebrities, whether or not there is a crash. The question is, if we are going to make their punishment turn on whether there was a crash, then we have to answer these questions.

·         The Ault case and the drag racing cases are cases involving intervening human choice that are culpable to the end result. These raise the proximate cause questions. Should these intervening acts break the causal chain and free the D’s?


            4.  Defendant, wishing to kill her husband, places a glass of poison by his bed.  A clap of thunder knocks the glass to the floor during the night.  As the husband gets up in response to the thunder, he slips on the spilled liquid, hits his head, and dies.  Is defendant guilty of causing his death?  Write one page.


·         D here has the purpose to kill her husband.

·         She is the but for cause of his death.

·         Is she guilty of purposeful homicide?

·         Assume that she is a but for cause.

·         No matter how strange the causal sequence it could’ve been planned. And if it had been planned and it worked, it would be odd to say that the D didn’t bring about the result. It happened exactly as planned. Any causal sequence could’ve been planned.


            5.  Defendants assaulted victim, intending to kill him.  Afterwards, thinking him dead, Defendants pushed him over a cliff.  Victim was in fact not dead at the time, nor was he likely to die from his wounds.  However, he did die from being pushed over the cliff.


            Write a one-half page memo discussing whether Defendants committed murder defined as intentional killing.


·         Why do you suppose this question is in the causation chapter?

·         How does it fit with the rest of these cases?

·         Notice that what happens here is that we have an attempted murder, then we have the disposal of a corpse from the D’s reasoning.

·         D tried to kill the victim, they did in fact kill the victim, but they didn’t kill them the way they thought they killed them.

·         D’s act is the subsequent act in the causal chain that causes the problem.

·         Did D pushing over the cliff break the causal chain? Does it matter because he is the same person who assaulted the victim?

·         D attempts to kill the victim, D does kill the victim. D is the intervening person because that intervention was perfectly a known culpable one. If it was culpable it was only culpable for improper treatment of corpses. It wasn’t risking death. You should view these cases as proximate cause problems, the only wrinkle is that it’s the D who is intervening in his own causal chain. The analysis would be exactly the same if it had been some 3rd party doing this.

·         D attempted purposeful homicide followed by a negligent homicide

·         Prosec – intentional homicide


Problem Set 10

Required Reading:

Dressler, Chs. 16-18 (to p. 252); Model Penal Code, §§ 3.01, 3.02, 3.04, 3.05, 3.09 and 3.11


Typically a D has a justification or an excuse. What difference does it make if the outcome is going to be the same?


You get a justification defense if you reasonably believe in the facts that would establish a justification. (You reasonably believe you were being attacked and you had to use self defense. But, you could reasonably believe it, when it’s not true. It could be a toy gun and you think it’s a real gun. Is the person who believes he’s being reasonably attacked, really justified? Some say yes he is justified, some say no.)


Hypo: A has a toy gun and points it at B. B thinks it’s a real gun. C sees all this from afar. B has a real gun and can use self defense. If C knows this is a fake gun, we don’t want C coming to B’s aid. C isn’t justified in coming to B’s aid.


Self defense is preemptive. One acts in self defense before one is attacked in order to forestall an attack. If you act after the attack, then you are just retaliating, you are not defending yourself.


Sometimes we attack even before there is an intent by the other person because we want to get them before they form that intent. In a preemptive strike, we have probabilities on probabilities. What’s the probability he will form an intent? What if someone with one bullet in a 6 chamber gun is shooting at you. There is a 1/6 chance you will get shot, so can you use deadly force against that person?


1.  (Two pages) Alice, Barbara, and Candy are three homicidal lunatics.  They are neither legally nor morally responsible for what they do. They proceed to round up some children in the woods outside a town, give the children some nitroglycerine bottles, and instruct them to go into town and throw the bottles at passers-by.  They also strap some captured infants to the children “to protect [the children] from retaliation.” Discuss the rights of residents in the town to employ deadly force: (a) against Alice, Barbara, and Candy as they are about to give the bombs to the children; (b) against the bomb-wielding children who don’t have infants strapped to them; (c) against the bomb-wielding children who do have infants strapped to them; and (d) against any of the above when innocent bystanders are at risk from the use of defensive deadly force.  Assume that the number of people put at risk by the townspeople’s use of defensive deadly force is always greater than the number of townspeople at risk of being killed or injured by the bombs.  (Assume, for example, that only one townsperson is at risk from the bombs.)


·         A. This is self defense against innocent aggressors. ABC are insane and so are not legally nor morally responsible. But, that doesn’t make them any less of a deadly threat. But, it does mean that we can’t view them as culpable. They are the innocent aggressors.

·         We don’t hold children to the same moral standards that we hold adults to.

·         Innocent shields are bystanders who just happen to be at a particular location (b/w the D and the aggressor). In exercising self defense against aggresors, what kind of self defense can you use?

·         This is not a lesser evils problem because the # of aggressors are greater than the # of townspeople.

·         One way to think about the justification for killing ABC: Among the innocent people, ABC are less innocent than the children. So, it’s a proper choice. The only time to go after ABC is before they give the bottles to the children, because then you will have to kill the children too.

·         Another Theory to justify killing ABC: Since A, B, and C are only 3 people, and if there are more children than there are lunatics, then you are better off killing less people by killing ABC. Just try to preserve as much innocent lives as possible. 

·         If the townspeople kill A, B, and C to stop them from giving the bombs, and you were defending the townspeople, what would you argue?

o   Both A, B, C are more morally guilty than the children.

·         What would justify going after them?

o   There is the danger that A, B, C could go give more bombs to other children.

o   W/o even making a comparative judgment, you can just do it on the #’s.

o   If there are more children than there are lunatics, then you should probably take out the lunatics. If you wait until ABC give out more bombs to more children, then you have to kill more children.

·         B. Why should the law prefer the lives of the townspeople to the lives of the children?

·         Let’s assume that there are more children that have to be killed than the number of innocent victims.

o   They are the aggressors. But, they are children so they might even realize what they are doing. They are presenting this danger innocently. They might not even realize what they’re doing. If we allow the townspeople to use deadly force in self defense, then aren’t the townspeople a threat to the children? We made the defender a threat against children. 

·         If we allow the townspeople to use deadly force in self defense, then aren’t the children in danger of the townspeople? The townspeople have become a threat to the children. (Example: A 4 year old toddler finds a loaded gun in his house and goes around outside with the gun. Eventually someone uses deadly force against the child. If we say that’s okay, then we’ve made the defender a threat against children.)

o   We have to preserve ourselves?

o   We are taking a case where someone is innocently threatening you, and the question is can you use force against them?

o   Hypo: There is a run away trolley and your foot is stuck on the track. There is a hefty person on a bridge on top of you. If you shoot the person he will fall and break the trolly that’s coming toward you. If you can’t do this, why should you be able to kill the innocent child? Your life is threatened in both cases. Can you take someone who is just a bystander and kill them to protect your life?

o   Hypo: What if there is a sniper shooting at everyone in a crowded park. Can you pull someone in front of you to save your life?

o   Should you be deemed justified or excused (we understand why you did it, but we don’t think it was a socially good thing) for killing an innocent person? Probably just excused.

·         C/D. Should you be allowed to use innocent shields?

·         What should the D be entitled to do?

·         What should a 3rd party do? Which side should the 3rd party intervene? Should the 3rd party come to the side of the townspeople or the children? Why should a 3rd party prefer the lives of the townspeople to the children?

·         There are people who could be morally and legally innocent who present a danger to others and one way of thinking about it is, is what the D is entitled to do and a 2nd way of thinking about it is through the eyes of a  3rd party. On who’s side should the 3rd party intervene? Should a 3rd party come to the side of the children because the townspeople are less numerous than the children? Why should a 3rd party prefer the lives of the townspeople to the children? We might say the townspeople at best are excused for using deadly force, but not justified. NO CLEAR ANSWER.


2.  (One-half page) If D believes V is attacking D and about to cause D’s death or serious injury, and D uses deadly force against V, what, if anything, is D criminally liable for if D was mistaken in her beliefs?


·         If you make a mistake (you think you are being attacked, so you use deadly force to protect yourself), what was the common law view on mistaken self defense?

o   MPC §3.09 – It takes the culpability of the mistake and it substitutes that level of culpability in for the mens rea for which the actus reus of the crime was committed. Although he actually had the mens rea of intention when he killed, because he thought he was acting in self defense, we’ll take the level of culpability of that mistake and substitute it in. The negligence or recklessness comes in with the assessment of whether he was being attacked. The MPC takes culpability with respect to a defense and substitutes it in as to the culpability with respect to the offense. 

o   It becomes a negligent or reckless killing rather than a purposeful or knowing killing.

o   You take a culpability with respect to a defense and substitute it in. You would’ve had a defense, but we are going to hold you to criminal liability at the level of your mistake.

o   If it’s a reasonable mistake, he gets off scott free. If it’s unreasonable, he gets a ____.

·         What is a reckless mistake?

o   We’ve talked about reckless actions. (Ex: someone thinks he’s being threatened with a real gun, but it’s a toy gun. What is a reckless mistake? They entertain the possibility that it is a toy gun. But, anyone can think that. What looks like a real gun can always be a toy. You are always going to believe there is a possibility of a mistake.) He honestly believes he’s being attacked with deadly force, then you’d have to say that it’s at least 50% plus that it is a real gun, otherwise you don’t believe it’s a real gun. The idea then that you are reckless, then you would believe it to be true…

o   You have to believe it more than 50% or otherwise, you don’t really believe it.

·         What should be the outcome if D negligently believed that he was being attacked and it turns out he was being attacked. (Ex: A person could be negligently believing it and it turned out to be true. What if little Joshua actually really did have a toothache and it wasn’t ganggreen?) What do we want to say about the D in that case? The D kills in self defense? It turns out that they were right. They had a negligent belief, but it turned out to be true. Do they get complete self defense or do they get negligent homicide? I don’t know is probably the right answer…


3.  (One-half page) Suppose D is, unknown to D, about to be attacked with deadly force by V, and D intentionally kills V because D hates V.  Should D be entitled to claim the justification of self-defense?


·         No, because D doesn’t know he is about to be attacked with deadly force. You have to believe in order to get the defense. You don’t get the defense if you don’t believe you are being attacked, even if you are.

·         You don’t get the defense if you aren’t really being attacked.

·         What about a  3rd party? He knows D is about to be attacked with deadly force. He knows that V is a deadly aggressor against D. He also knows that D is going to attack V purely out of hatred, without knowing that he is being attacked. On who’s side should a 3rd party intervenor take? Hard to make any disntinction. If the 3rd party knows all the facts, hard to justify for one side or the other. They are both equally culpable. They would both be guilty of regular ol’ homicide. 


4.  (One page) Suppose Dan and Allan each reasonably, but incorrectly, believes that the other is attacking him.  (Neither is in fact attacking the other.)  Because of their mistaken but reasonable beliefs about their danger, each decides to use force in “self-defense” against the other.  Have they used justifiable force?


·         Since they’re both mistaken, they both turn out to be correct. It’s got the shape of a paradox. Under §3.11, the definition of unlawful force means force which constitutes an offense or would constitute such an offense except for a defense not amounting to a privilege to use the force. So self defense is a privilege to use the force. So, if each person would be viewed independently would be justifiably using self defense since they reasonably believed they were being attacked, then each person would be privileged to use the force. In which case the other person would lose this privilege. This is the paradox.

·         Suppose Dan knows that Allan has been duped about Dan. So, Dan knows that somebody has told Allan that Dan is going to shoot Allan and so Dan knows that Allan is likely to be shooting him in self defense. So, Dan will then know that Allan will have a privilege to use force against Dan. Does this mean that Dan can protect himself against Allan? The MPC suggests that since Allan will be acting reasonably in self defense, that he has a privilege. This suggests Dan can’t use deadly force. The MPC defines unlawful force to exclude force by a reasonable but mistaken self defender. Suggesting that if someone is a reasonable but mistaken self defender, you can’t defend against them, because they aren’t using unlawful force, but that leads to an absurd result. The MPC doesn’t want that result, but the authors have gotten themselves in a box. There is no good way to write this. Once you have privilege, you are no longer using unlawful force. You can have a reasonable belief, but be mistaken.


Problem Set 11


Required Readings:


            Dressler, Chs. 18 (from p. 234), 19



1.  Defendant has been warned by a radio bulletin that a knife wielding lunatic has escaped from the nearby asylum and is at large in town.  It is predicted that it will take authorities a few hours to capture the lunatic.  Defendant has an urge for a Mars bar and decides to leave home and walk to the 7-11.  Because of the bulletin, he takes his .45 with him.  Sure enough, he encounters the lunatic, who comes at him with the knife.  If defendant shoots the lunatic and kills him, will he be able to invoke self-defense?  What if defendant’s taunting is what turned the lunatic into a lunatic?  (One page)


·         What’s the danger of saying that this person has to stay home? What’s the logical implication of that?

o   You couldn’t use self defense if you went into a bad neighborhood, after all you knew it was a bad neighborhood. So you don’t go there or don’t go there harmed.

·         The retreat is effectuated by just staying put.

·         Does the D lose the right of self defense if the D insulted someone and the V pulled the knife? Basically if you started it, are you justified in using self-defense? (MPC 3.04)

o   MPC 3.04(1) you can use force to protect yourself against unlawful force. (but there are limitations)

o   MPC 3.04(2)(b)(i) : The use of deadly force is not justifiable if the actor, w/ the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter.

§  What about a guy in a bar who calls another guy a name (insult) and the insulted guy attacks the guy? Can the 1st guy use self defense.

§  There is the danger that someone could go into a bar and call him names and wait for someone to attack him, just so he has an excuse to kill them. He wants them to attack him. Is he precluded by this section if he’s walking just to entice people to attack him? The implication here is that he would be precluded from using deadly force if his purpose is to provoke deadly force. (It’s not spelled out what provoking means here.) If he’s counting on the Hell’s Angel member being excessive and unlawful, does he get to use deadly force? It’s not clear. But if you just taunt someone and it’s not your purpose to provoke them, then you do not lose your privilege of self defense.  


2.  James Bond is being pursued by Jaws, who is clearly trying to kill him.  Bond is at the top of a high hill.  The hill is covered with thick, impenetrable jungle.  There is a road that serpentines up the hill to the top. Bond sees Jaws on the road at the bottom of the hill, about an hour’s time from the top.  Jaws is at the only point where Bond will have a clear shot until Jaws is at the top.  Under the doctrine of self-defense, may Bond shoot at Jaws now, or must he wait until Jaws is at the top of the hill, where Bond’s chances of successful defense are lower?  (One page)


·         This is a question that deals with imminent harm.

·         Self-defense is ALWAYS preemptive. It always takes place before the attack to which it is a defense.

·         How preemptive can it be?

·         This problem: The attack is sometime off in the distance, but the best chance of defending oneself is now. Must Bond wait or may he act at this point?

·         What’s the difference b/w the common law and the MPC on this point?

o   Common law – the attack has to be imminent

o   MPC - It shifts from the timing of the attack to the timing of the defense. It changes the focus.

·         We can imagine a case of domestic violence, where there is an episode of abuse and then a promise that it’s going to get even worse and avenues of escape have been cut off, but the promise that it’s going to get worse is in the future. So, the chance to defend oneself might be in the present (this one opportunity). So, we might think that it is immediately necessary to defend themselves now, even though the attack is sometime off in the future. What is the significance of time here? Time affects probability. The longer off it is, the more things could happen to avert it. Jaws may get religion. He may stumble and fall. The Marines may land. The more time, the more alternative possibilities that will avert the danger. So, what kind of probability should we require? Suppose that your only chance to act is now, what probability of the act should you require? Suppose somebody says that in an hour, I’m going to attack you if I roll a dice and it comes up in a pair. The odds are somewhat in your favor. You can shoot them now or later when they roll the dice you won’t have a chance. Are you justified in shooting now? What kind of probability should we require?

·         Scenario’s:

o   Scenario 1: A has been having an affair with B’s wife. A slipped on the floor and can’t move. B says I’m going to get my gun from my office and kill you. Can you shoot him in the back?

o   Scenario 2: A has been having an affair with B’s wife. A slipped on the floor and can’t move. B doesn’t know yet. B says he will help after he checks his voicemail. You know B is a hothead and has a gun in his office.

o   Scenario 3:  A has been having an affair with B’s wife. A slipped on the floor and can’t move. B doesn’t know who has been sleeping with his wife. B will go to his voicemail and check his mail before helping B. You know B is a hothead and has a gun in his office.

o   In all 3 cases, if A acted preemptively he could save himself.

o   These scenarios get you to think about the preemptive nature about the offense. We don’t have the luxury of how things would actually play out. Does the person have the intent? Would they form the intent? If they carried out their plan, would they carried it out effectively (the gun could jam, the person could miss)?

·         The MPC tells you that you could use deadly force when it’s immediately necessary. But, it doesn’t tell you exactly what probability you should attach to the necessity. So, if it’s immediately necessary, but since it’s removed in time, the attack by Jaws is just a probability. The longer the way it is, the lower the probability is (all sorts of things can happen).


3.  James, an intellectual of slight statute, calls John, a pro linebacker, a big, dumb oaf.  John retaliates by telling James that he will hold him and beat on him for an hour, though he will not cause his death or serious injury, but only pain.  James has a gun.  May he use it against John to avert this mild beating?  (One-third page)


·         No. You just have to grin and bear it.

·         What if James knows that resisting with his fists will be futile, but he also knows that it will provoke John to escalate John to cause serious bodily injury. If that happens James plans to use his gun. May James use his fists in that situation?

o   The catch here is that using his fists is not going to free him, instead the only thing it’s going to do is up the force that John will use.

o   Should James be allowed to use his fists?

·         If proportional force won’t work for you, then you are stuck with suffering the harm.

·         What could James do about his situation?

o   Can James protect himself by saying “if you slap me, I’m going to shoot you.” Can  you rig up something to make it such that would otherwise would be a minor offense against, will now be a death or serious bodily injury?

o   What if you have a sign that says “If you pick my apples, you will be shot”?

o   Would it be okay to protect my apples if I put a mote around them with alligators and I had signs that warned people not to trespass? Is there a difference b/w putting alligators around the apple tree?


4.  Suppose D is being attacked by V with deadly force. D can safely repel the attack by shooting V in the arm. Instead, D shoots V in the chest, killing V. Justifiable self-defense? (One-third page)


·         Even though he has two options to repel the attack, could he do either? Yes. That is the correct answer under the law.

·         Under the MPC, purposely firing a firearm in the direction of another person constitutes deadly force.

·         Police Dept’s say if you are going to use a gun, you should use it to point at vital regions.

·         The MPC seems to suggest that once you are entitled to use deadly force, deadly force is deadly force so you can fire it anywhere.


5.  Suppose D is being attacked by V but is not in jeopardy of death or serious bodily injury from the attack. D can stop the attack by shooting V in the arm or by using his fists.  V is much more likely to suffer serious injury from D’s fists.  May D shoot V in the arm?  (One-third page)


·         This is the converse of the previous problem.


6. Edna has been told that Gypsies who find women alone always rape and kill them.  She believes this.  One night, while walking alone, Edna sees two Gypsies approaching her.  As they come close, she pulls her gun and shoots them.  Does she have a legitimate claim of self-defense?  Would she, if evidence were discovered that showed they in fact planned to rape and kill her?  Could the Gypsies use self-defense?  Third party intervenors?  (One page)


·         What can she be convicted of? Negligent homicide if she thinks it’s an unreasonable belief. What happens in common law if she has an unreasonable belief? She just loses the defense.

·         On whose side should a 3rd party intervene?

o   It would seem odd to side with the gypsies just because Edna was negligent. The gypsies were going to rape and kill her anyway. Edna believed she was in sincere danger and she was truly in danger.

·         How does the fact that the Gypsies were going to rape and kill her affect the outcome?

·         People make judgments on people all the time. We have stereotypes and generalizations. (If you are a rural town diner in Kansas. You might be thinking that most of those people are republicans. You’d probably be right.) We don’t know people in their particularity, we generalize about people.

·         The question is whether generalizing on ethnicity fundamentally different.

·         You are better off to find out more about people because this person may be an exception to the generalization.

·         We act on stereotypes all the time. We generalize.

·         Does forming a belief that is prescriptive (ehticity), is that a necessarily a negligent belief?


Problem Set 12


Required Readings: Dressler, Chs. 20-21; MPC §§ 3.04, 3.06, 3.07


1. D has been mugged by V previously, at which time V threatened D with a gun.  V now accosts D and demands D’s wallet.  Although V does not show a gun, D fears that V has one and gives V his wallet.  As soon as V begins fleeing the scene, D pulls a gun he has been carrying for self-protection and begins chasing V, demanding his wallet back, and threatening to shoot V if V does not drop the wallet.  As D pursues V, D is joined by police officer P.  After pursuing V for a few blocks and issuing several warnings, D and P, out of breath, fire at V, killing him.  D and P are prosecuted for homicide and claim, in their defense, the privileges of MPC §§ 3.06 and 3.07.  In the light of these provisions and Tennessee v. Garner, what result?  (One and one-half pages)

·         The applicable subsection is under MPC §3.06(D) is (ii). The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either: (1) has employed or threatened deadly force against or in the presence of the actor; or (2) the use of force other than deadly force to prevent the commission of the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm.

·         When does consummation occur? The answer is “no one really knows.”

·         We said “James can’t use deadly force just to prevent a mild beating because it wasn’t proportionate.” But you can use deadly force to prevent someone from getting away with your wallet. Why is property elevated to a high status and getting slapped around isn’t?

·         What if V mugged D butt naked? So D knows there is no gun. Is D justified to use deadly force then?

·         If V would be a deadly threat to you if you caught him, can you just be shot if you can’t catch him?

·         If P thinks that D is the bad guy and V is the good guy and being chased by a bad guy, then P shouldn’t be intervening to aid D here. What did P believe the situation was? Suppose D says, “That person took my wallet.” Would P be justified in using deadly force in that circumstance? The condition that licensed D to act is not the same for P. P can also just come in aid of D just as anybody could. Just as someone has a privilege to use force, someone else can come to the aid to help that person. The same conditions that licensed D, will license P if P believes those conditions exist. P can claim whatever privileges based on what D tells him.

·         What if D is a pacifist? D doesn’t believe you should shoot anyone even if he’s been threatened with deadly force. So, D is chasing after V, and he is joined by P. P says I can shoot the guy and stop him. D says it’s not worth it to me if he dies for my wallet. May P shoot V, even if D doesn’t want to? Would a 3rd party intervener be entitled to use deadly force against someone when the victim doesn’t want the intervener to do it? What about a person who is squeamish at the sight of blood? Since this rarely happens you can understand why it’s not covered in the MPC. But the fact that it rarely happens doesn’t mean that it never happens.

·         Surely peace officers would be no less entitled to use deadly force than private citizens who were the victims of the crime. It would be odd to say that peace officers are more restricted to use deadly force than citizens. 

2. Whiskey Joe is out fishing without a license again.  He is known to be carrying a knife.  When Whiskey Joe has been drinking he gets violent, and he has frequently boasted that if any game warden tried to arrest him, “he’d end up bleeding everywhere.” Warden Jim finds Whiskey Joe at a stream bank, fishing rod in hand, and an empty whiskey bottle beside him.  Jim asks Joe to produce a fishing license; and when Joe refuses, Jim declares him to be under arrest and orders Joe to come with him. Joe says, “Try and make me.”  Jim grabs Joe’s arm, at which time Joe pulls his knife with his other arm.  Jim then pulls his gun and orders Joe to drop his knife.  Joe refuses, and Jim shoots him.  Joe dies, and Jim is charged with homicide.  Given MPC §§ 3.04, 3.07, and the Garner case, what result?  (One page)

·         What is Jim justified in doing? Can he continue on in the face of this threat?

·         We do not have to back off of a lawful arrest just because the guy is upping the ante. Joe has made the situation more serious. Joe has resisted arrest and threatened force against a peace officer. So, now he’s being arrested for a felony. He’s just converting himself from a minor criminal to a big time criminal.

·         Garner does not apply where the danger to the person being chased is not from the use of force by the cops but from the intrinsic dangers of fleeing. The incentives would be perverse. You get pulled over for a minor traffic violation and you just speed up recklessly so the cop will say “oh, I can’t chase that guy.”

·         Suppose the danger was not from the suspect, but the danger was to the cops from chasing. Suppose cops had too many donuts and had a heart condition. Should the cops have to desist? The rule in Garner says that you should desist. It seems like a contest. If you can run away from the cops by being fleet and skillful, then you win.


3. D’s home has been burglarized frequently in the past by burglars who the police have said are probably armed and dangerous. D keeps a loaded gun, but he is not very proficient in gun fighting. He resolves that the next time he sees someone entering a window at night he will fire on the person without warning, fearing that a warning will jeopardize his safety.  May D do so under MPC § 3.06? If he may, may he set up a deadly spring gun in case he is a deep sleeper or a very poor shot?  (One and one-half pages)


·         The 1st question in #3, where the guy fires without warning.

a.       May he do this under MPC §3.06? Yes. You are justified in making this probability judgment because there was an incidence of burglaries in the neighborhood.

·         If it is okay, may he set a deadly spring gun?

a.       Spring guns are only illegal if you are trying to protect property. But, not if you are protecting yourself. The spring gun is never nervous and always awake.


Problem Set 13

Justifications – Choice of Evils Defense



1. a) Assume D knows that the river, if not diverted, will flood the town, killing hundreds, and that saving those townspeople is a lesser evil than flooding V’s farm.  Nevertheless, D’s reason for flooding V’s farm is D’s hostility to V, not his concern for the town.      


·         Does hostility make a difference? He shouldn’t benefit by the mere fortuity?
Ex. Executioner – he enjoys killing people and someone has to do it and it’s lawful. Is he guilty of murder even though it’s lawfully done?
The law doesn’t require he act out of an altruistic motive.

·         If you don’t have the right motive, are you going to be punished? Is that what we want to do in this situation?
No. There’s nothing here to suggest an affirmative duty to act. Omissions are not generally punishable. He if sits back and does nothing even though he knows the town is in danger, he’s not guilty of anything. We want D to turn the valve. If there’s a misanthropic motive that makes D turn the valve, then we have to make due. Goes the same for the executioner. It’s got to be done and you don’t want to punish him.

Common law “clean hands” is ambiguous. It doesn’t mean that you have to be motivated by achieving the lesser evil. It’s whatever motivation will get you to do it. Whole point is to get the result we want.


Alexander’s Opinion: Carroll towing formula is a formula for recklessness. In order to apprise yourself of risk, the risk is always “one”. There’s a cost that you weigh in order to avoid the risk but there’s also a cost in finding out about the risk. That cost doesn’t show up in the formula and that should count just as much.


Ex. Suppose there are 2 ways that D can divert the river: 1) V’s farm or 2) a vacant lot. Both are lesser evils than flooding the town. However, flooding the vacant lot is a lesser evil than flooding the farm. D hates V so he chooses to flood V’s farm. Look at MPC 3.02(1)(a). Should we punish D for maliciously flooding V’s farm?

Remember, D has no duty to do anything. He chose the lesser evil, not the least. We’d like him to flood the vacant lot and he could refuse to do anything. Alexander things the MPC drafters were imagining a situation that presents a binary choice but frequent situations include avoiding the evil in more than 1 situation. They didn’t think about the situation where there were more than 2 choices. We would want D to flood V’s farm b/c we don’t want D to sit on his hands. The MPC seems to point in the opposite direction. The worst option socially is not doing anything.


Ex. Suppose that V is on the farm and sees D about the turn the valve. V knows there’s a flood coming and unless the D turns the valve, the town will be flooded. Could V stop D?

Neither has a duty to save the town. If one party is justified then the other party cannot be. Socially, the best outcome is that V’s farm gets flooded and the town gets saved. While V has no obligation to turn the valve and injure his own farm, if someone else doing it, V has an obligation not to interfere. Justifications can be universalized and once one party (V) knows the other party (D) is justified, V isn’t justified in stopping D. A 3rd party coming onto the scene who understands the situation can give D assistance: He’s stepping into D’s shoes. If V was trying to resist, the 3rd party can’t assist V.


Why do we have to assume, universally, that we shouldn’t have incompatible justifications?

It’s the nature of a justification. MPC defines justifications in way that the reasonable, but mistaken person, is deemed to be justified. You can have 2 people that were reasonably mistaken to use self-defense against another. If there’s a socially better route and someone knows it, that’s the route of a justification. If someone makes a mistake about a justification and it’s reasonable, he’s not guilty of anything. He’ll get the justification. A 3rd party who knows that the river isn’t flooding, can’t aid D. If he sees D turning the valve, he’s got to try and stop him. Justifications, while subjectively compatible, objectively they can’t.


Suppose V knows the valve will flood in either two directions, one to his farm and the other to the vacant lot. If V intends, by resisting, to then himself turn it to the vacant lot, he can. He’s going to produce an evil lesser evil. D loses his justification b/c he’s interfering with a lesser evil. If V intends to resist D, and then, if successful, divert the river to the vacant lot, then V is justified in resisting b/c V is producing an evil lesser evil.


This is a given in problem 1: Flooding the town is a greater evil than flooding the farm. Lesser evil is a matter of law. If Δ makes a mistake whether the river is going to flood the town is a mistake of fact. He doesn’t get the benefit of mistake. If Δ makes mistake what’s a greater evil than what, that’s a mistake of law. A mistaken belief in what’s a lesser evil is a matter of law and doesn’t count.


Suppose V knows that the town is going to flood and V’s children are on the farm and will be killed, should V be able to resist then? There are more children in town than on the farm.

V has a duty to protect his children. The duty to your own children doesn’t privilege you to save them at the expense more children elsewhere.


1. b) Assume alternatively that D is unaware that the town is in danger, and diverts the river out of hostility to V.  Nevertheless, the diversion saves the town.

He’s guilty of maliciously damaging V’s farm b/c you have to believe. No justification.


Suppose that D hasn’t heard anything about the flood and is flooding V’s harm maliciously. V has heard about the flood. V knows that D hasn’t heard about it. D is committing the crime against V. Can V resist?

No. [explanation below]

What about a 3rd party? Suppose a 3rd party knows D hates V and D hasn’t heard the report. 3rd party’s heard about the threat to the town. D’s turning the valve. Should 3rd party be able to help D?

Yes, we want everyone who understands the situation to come in on D’s side even, if D’s acting criminally and doesn’t get the defense. This includes V himself. From everyone else’s standpoint, it’s still the lesser evil to flood V’s farm. V doesn’t have to turn the valve on his own farm b/c no one has an affirmative duty, including V. But V shouldn’t stop D. A 3rd party doesn’t have to aid anyone, but if he’s going to help, he ought to be aiding D.  V should let D turn the valve or help D turn the valve; V shouldn’t resist D.


 1. c) Same as a., except D is not hostile to V.  But the reason the river is a threat to the town is due to D’s negligence regarding a dam upstream.

MPC 3.02(2)

The negligence in creating the situation is substituted in as the mens rea of flooding the farm. MPC says we’ll give you the lesser evils defense to a charge of knowingly flooding the farm, but we’re going to treat your negligence upstream as your mens rea for flooding the farm. It was a lesser evil. That’s the choice we wanted D to make, but we’re not letting him off the hook for his negligence upstream since that’s what produced the predicament. It’s a rough justice approach. You were negligent upstream, then you made the right choice downstream, but we’re not going to let you off the hook entirely b/c of your negligence upstream. That’s exactly the same scheme as with self-defense and defense of property – substitute in the original negligence for the mens rea of when you commit the ultimate act.


Suppose D didn’t flood V’s farm. D didn’t do anything. What would D be guilty of in that scenario?  If D knew people in town are going to die, D would be guilty of knowing homicide. Even though D’s initial act was negligent, now that he has a chance to save the town from his negligence, and he knowingly refuses to act, he’s on the hook for knowing homicide. D would have an affirmative duty to save the town at this point.


Suppose D hears about the flood. He realizes his negligence caused the danger. But he sits on his hands and doesn’t turn the valve. It turns out it wasn’t his negligence that caused the flood. Analyze this situation.

Like an attempted homicide. You think you’re killing someone. He’s subjectively culpable b/c he thought he had a duty to act but didn’t. That would be like an attempted murder but with a dead body. It’s strange, but that seems to be the result.


1. d) Assume that D mistakenly but reasonably believes the town is in danger and diverts the river “to save” the town.  What if the mistake was unreasonable?


****Might be on test. Under MPC 3.02(2), if D reasonably believes, he gets the defense. If the mistake is unreasonable, look to see if the mistake is reckless or negligent. If it’s a negligent mistake, he’s guilty of negligently flooding V’s farm.


What if V knows there’s no flood?

V can definitely resist. Although we give D the defense, nonetheless he’s not actually taking the lesser evil. He’s creating an evil that didn’t exist. V can resist here b/c he’s just saving his farm at no expense to the town. If the 3rd party knows there’s no danger and infers that D hasn’t heard that the town isn’t in danger any longer, can the 3rd party aid D? No.


What if V knows the town is going to flood and he tries to resist D?

From his perspective, V’s preventing the town from being saved. It’s like he’s attempting to flood the town. That’s a serious charge.


Overall, think through the alternatives and see what outcome you want. Distinguish btw the culpability or the non-culpability of the actors and what it is you want to happen and which actors should be privileged to do what.

If the objective facts are in favor of one’s party’s action, then that’s the course of action that everyone should take. Presuming they perceive that. Anyone who perceives that must follow that.


1. e) Same as d., except D diverts the river out of hostility to V.


Hostility doesn’t make any difference.


The word in 3.02(1)(a) “sought” – how does that affect the question of motivation?

It’s a red herring. It suggests that the motivation of the Δ counts. But read in light of the rationale policy of what 3.02 is trying to effectuate. MPC 3.02 wants an actor to take the lesser evil if he knows it’s there. It doesn’t care whether he did b/c it’s a lesser evil or for some other reason.


2. c) “The trolley problem” – A runaway trolley is heading down a track on which five men are working, oblivious to the danger.  There is a switch you can throw to divert the trolley onto a siding.  There is one person working on the siding.  May you throw the switch?  What if it was your negligence that caused the trolley to go out of control?


Most people would say yes, you can throw the switch.

What if your negligence was what set the trolley set it out of control?

You’re not off the hook for your negligence; you better minimize the damage.


2. d) A surgeon has a hangnail patient with healthy organs.  Without permission, he removes the patient’s organs and transplants them to several patients in imminent danger of dying from organ failure.  The surgeon is prosecuted for murdering the healthy patient and pleads “lesser evil.”


Suppose you have 5 workers and there’s no spur. A fat man is over the bridge looking down at the tracks. You’re on the bridge with him. You push him over b/c his girth will save the workers below. It didn’t take you any more force to flip the switch than to push the guy over.


Dudley v. Stevens – structurally more like surgeon


US. V. Holmes – structurally more like trolley


Alexander’s opinion – The surgeon and fat man are similar b/c the person who is sacrificed is used as a means for the betterment of the others. Their death is the means by which the others can live. If fat man falls and misses the tracks, the plan is foiled. Or if somehow, the hangnail patient sees the doctors and gets up to leave, the plan is foiled.

However, if the man working on the siding sees the train and moves, the plan isn’t foiled. In fact, the plan works better. His involvement isn’t necessary for the plan to work.

One way to look at the distinction is the way the 5 get saved. Do they appropriate as a means the death of someone else or do they endanger someone, but they don’t need to the person to be endangered for their plan to succeed?


Robust conclusion:

Using A as a means to save B and C, people reject

Saving B & C and then as a byproduct hurting A, that’s permissible.


Is it okay to redirect the trolley if the one worker can sees the train, knowing that there are 5 people are on the other track. Can he use self-defense to stop the train?

We might think yes, given that’s he’s trying to save his life, but that’s not the case. He might be excused, but we wouldn’t say he’s justified. If someone’s justified in throwing the switch, we wouldn’t say the train worker is justified in resisting.


Would the person be justified if the one worker on the siding is his spouse?

Not throwing the switch wouldn’t get him in trouble since he doesn’t have a duty to save anyone’s life. Although you have a duty to rescue your spouse, you don’t have a duty to rescue your spouse at the expense of others. From the standpoint of the law, everyone is someone’s parent or spouse, therefore you’re still not justified.


What if it was Mother Theresa on the siding? The 5 are sex offenders. Do you get the lesser evil’s defense if you turn the trolley on Mother Theresa to save the life of 5 criminals?

MPC doesn’t give us what’s a greater of lesser evils. It’s open judgment under MPC to take into account things other than shear numbers. If the 5 workers were in their 90s and the one person is young, you might think differently.


2.e) An anti-abortion group, which believes abortion is homicide, trespasses on an abortion clinic’s property as a means of slowing the rate at which abortions are performed.  When prosecuted, they plead “lesser evil.”


Suppose the court has the same viewpoint – what should the court do?

This is a variation of MPC 3.02(1)(c). In order to get the defense, you have to meet the conditions of MPC 3.02(1)(a) Then, it has to be true that a legislative purpose to exclude the justification claimed doesn’t otherwise plainly appear. In this case, it’s not a legislative purpose necessarily. When the S.Ct says that the states must allow abortion as a matter of the Constitution, that’s as good as the legislature saying you can’t make this into lesser evil. State legislature is trumped by a higher authority: the Supreme Court. It’s a Constitutional provision – as a matter of constitutional law, the group is precluded from claiming that abortion is a greater evil than trespass, regardless of right or right.


2. f) Moose are foraging on D’s cattle ranch in competition with D’s cattle.  D shoots some moose to protect his herd and is prosecuted for shooting moose out of season.  He pleads “lesser evil.”


Economic necessity can be used in certain contexts. There are 2 values – the values of protecting moose and the value of ranching. How do you trade those values? It’s easy when comparing lives to property or lives and lives. There’s no obvious way to compare values in this question. Deciding what’s a lesser evil than what requires qualitative assessments. It won’t be easy.


2. g) D, a doctor, prescribes marijuana for his terminally ill cancer patients.  When prosecuted, he claims “lesser evil” on the ground that the marijuana is therapeutically useful.


What’s does it mean for legislative purpose to exclude the justification claimed does not otherwise plainly appear?

You’ll only use the defense if there’s no exception that appears the rules. MPC 3.02 kicks in when you have violated the statute as it appears on the books and you’re saying, “Yes I violated the statute, but it was a lesser evil to do so.” What it doesn’t mean is the rule contains no exceptions. There needs to be some evidence that there was an exception, but it was rejected. Notice there’s various reasons why a legislature wouldn’t put an exception in:

1) They don’t want the exception. Plain and simple. OR

2) You don’t want the exception formalized b/c you’ll think it’ll be abused. Ex. Euthanasia.


How would you craft an exception that wouldn’t lead to greater abuse? i.e. We really mean yes, but don’t want to say yes, b/c yes is dangerous to say.

There are two kinds of abuses you want to stop:

1) There’s something you don’t want people to do, but they manage to convince jury under this kind of loophole that they should get the exception

2) A person thinks he’s going to get away with something, and even though the jury convicts him, and he didn’t get away with it, he still committed the harm. You don’t want to build an exception into the rule that’s going to be abused.


·         When you come to 3.02, you’ll always deal with cases where gov’t hasn’t put in exceptions to cover your case. If there’s already an exception, you wouldn’t have to plead the defense.

·         When they haven’t provided an exception, what does the failure to provide an exception mean? Does it mean no or not no?


2. i) V is trapped in a burning car.  She is screaming in pain and terror, and there is no way to save her.  D, V’s husband, out of a desire to stop V’s suffering, shoots her.  When prosecuted for murder, D pleads “lesser evil.”


See above.


2. h) D believes the military draft is a great evil and intentionally burns down a draft headquarters.  When prosecuted for arson, he pleads “lesser evil.”


He isn’t justified in pleading lesser evil. This is losing claim b/c if the legislature sets up a draft, they clearly don’t think the draft should be interfered with.



Problem Set 14


Required Readings:


Dressler, Ch. 23; MPC § 2.09



Duress: The D did something wrong, but for various reasons should not be responsible for having done something wrong. If somethings an excuse, then people are privileged to resist. 3rd parties cannot come to someone’s aid.


As a farewell to justifications, I should point out that in justification section article 3 of the MPC, that deadly force is permissible by prison guards to prevent escape from prison. This is regardless of the time the person is serving in prison. Proportionality doesn’t matter here. 


Answer the following questions by reference to MPC, § 2.09:


1.       D, in prison, is continually sodomized by other prisoners against his will.  To avoid continuation of such treatment, which has severely mentally traumatized him, D tries to escape from prison.  A prison guard tries to stop him, and D knocks the guard down, seriously injuring him.  Once outside the prison, D remains at large until captured.  He is charged with escaping from prison and assault on a peace officer and pleads duress.  What result?  What result if he pleads “lesser evils?”  (Three-quarters page)

a.       The paradigm the MPC is working with is the case where you go and commit this crime in my direction or I’ll do something to you. The person being coerced is trying to escape the coercion.

b.       How do you apply the lesser evils defense here? If you apply 3.02, its better to escape then to submit to rape. If this is a lesser evil for him to be out of the prison, then it makes no sense that he should be returned to the prison. To treat this as a standard case of duress, we have to assume that he is doing the wrong thing by escaping and we’re entitled to return him there. But, it seems odd to put him in the situation where he was entitled to escape.

c.        What if you are taking him back to prison and he knocks over a guard and escapes again? He’s being returned to those that sodomized him.

d.       Why do they want to deny a defense to someone who recklessly put himself unjustifiably in a situation where duress was likely? Organized crime, gangs. Joining a criminal gang. They forced me to do this. No! You recklessly put yourself in that situation by joining the mafia. They don’t want to give incentive to an organization. The mafia will say, “we’re going to say we’re going to kill you, if you don’t do this so you can have this defense.”

2.       D has been found guilty of murder and is sentenced to die.  D believes he is innocent.  At the time of the execution he stabs and kills the executioner with a hand-carved knife and tries to escape.  He is captured and tried for the murder of the executioner.  He pleads duress.  What result?  (One-quarter page)

a.       He’s not resisting unlawful force. MPC §2.09(1). The executioner is lawful. Why does it have to be unlawful? The crime that’s being committed is not justified, the crime is still a crime, it’s because we sympathize with the situation the D is in. Typically the person is getting out from under the threat by using an uninvolved party. It’s not just that the crime is less serious, the crime is that he’s using somebody else. We’re just excusing him because we think he’s in a tough position. (When A robs a bank under unlawful force, he is being faced with lawful force by the bank. Why is this different? The point here is that when you are threatened with unlawful force, the person of reasonable firmness, will go out and commit a crime, why does it make a difference if the threat is unlawful?) The answer: You can’t get the defense of duress when you are responding to lawful force. If the defense of duress is premised on just how hard it was to resist, then lawful force could be hard to resist. It does not matter that he believes he is innocent. He is lawfully guilty.

3.       D, a high public official, has been photographed by B, a blackmailer, in an adulterous relation.  B demands that D write checks on the public treasury to B’s company for bogus services or else B will publicly reveal D’s peccadilloes.  D writes the checks, the deed is discovered, and D is prosecuted for misappropriating public funds.  D pleads duress.  What result?  What if D were a drug addict, B his supplier, and B threatened to cut off D’s drugs?  What if B were one with a legal duty to give D life-preserving drugs?  (One-half page)

a.       No threat of unlawful force here. Blackmail does not involve the threat of anything unlawful. Blackmail is a crime in which a person threatens to do either or and both are legal acts. If you don’t pay me $, which is a lawful act in itself, I will show these pictures.

b.       What about threatening to cut off his drugs from his drug dealer? It’s neither force nor lawful.

c.        Legal duty to give D drugs? It is unlawful, so we have the unlawful met here. Are you threatening the person with unlawful force? But this is not force. If the MPC drafters wanted to include this, they should’ve written this slightly differently. The answer is not clear cut for this question.

4.       D is driving a car. B is a passenger holding a gun on D.  D is on a narrow stretch of road, with a sheer drop on one side and a sheer cliff wall on the other.  D sees two children playing in the road.  He has time to stop, but B orders him to drive on or be shot.  D complies and is later charged with murdering two children.  He pleads duress.  What result?  What if it is not B’s threat, but a boulder coming down the side of the cliff wall that will crush D if he stops, that impels D to run over the children?  Would it matter that a person dislodged the boulder?  (One-half page)

a.       You can plead duress to homicide. Why isn’t lesser evils available here? You are not taking fewer lives. You are taking more lives by killing the children (2 lives) and saving yourself (1 life).

b.       What if it is a boulder? He’s being threatened with nature. Nature is not unlawful force. A person of reasonable firmness would do the same thing, so why does he get the defense with someone with a gun, but not when mother nature is involved here? If threatened by nature, there is no duress defense. This has been the part of the MPC that has been severely criticized, not giving a defense to someone who is threatened by nature. (Danger - People are more likely to carry out their conduct if they are going to get excused because they had a gun to their head.)

c.        A person dislodge the boulder?

5.       D is ordered to rob a bank by X, a mobster living across the country.  X tells D that if he refuses, every bone in his body will be broken within a year.  D, knowing of the reputation of organized crime, fears for his safety and complies.  He is tried for bank robbery and pleads duress. What result?  (One-quarter page)

a.       How does time affect things? The probability that the threat will actually be carried out. The longer the time, the less likely the threat will be carried out. The more remote the threat, the more the person of reasonable firmness is going to resist it. Time itself is not an element, but it can be relevant. MPC§2.09(1). It all depends. You might be dealing with a mob that has lots of resources and a good memory.

6.       D, an adult, knows that a certain neighborhood has a reputation for being very violent and having lots of muggings.  She proceeds to walk in the neighborhood anyhow.  She is approached by a youth, Y, about 10 years old.  The youth says, “Lady, get me that watch,” pointing to a watch in a store window.  D, who has no money on her, fears that if she doesn’t get the watch for Y, who she believes could well be a gang member and carrying a concealed weapon, that Y might attack her.  D goes into the store, steals the watch, and gives it to Y.  She is observed doing this and later charged with theft.  Y is not a gang member and was unarmed when he asked for the watch.  D pleads duress.  What result?  (One-half page)

a.       Should she deemed to have put herself in a recklessly dangerous situation? We don’t want to limit her freedom. This is not good public policy to say that if she goes somewhere it is reckless. Places where you are lawfully entitled to be. You are stigmatizing certain places. D will not lose the defense for having recklessly placed herself there.

b.       Did the person reasonably believe they were being threatened? Did they sincerely believe they were being threatened? We’re not going to be able to get some witness to say, it was a bluff, I wouldn’t have really carried it out. MPC §2.09(2) – you could read it as “if you were negligent in believing something…” It’s a matter of perception. 

7.       D is independently wealthy and deathly afraid of being tickled with a feather.  X threatens D with such tickling unless D robs a bank, which D does.  D pleads duress.  What result?  (One-third page)

a.       Is he being threatened by force? Yes. You have a right not to be tickled against your will. What’s the problem in the defense? A person of reasonable firmness. Would a person of reasonable firmness rob a bank because of the threat of being tickled? What does “in his situation” mean? How hard was it for him to resist the threat? Do we take into account phobias? Suppose he was threatened with having a big South American tarantula (harmless) thrown on him in bed while he is asleep? He has a serious case of arachnophobia. If you were threatened with something you might do something you might not otherwise do. You could threaten someone with a gun or a spider. Why do you care whether the thing would’ve caused someone else to do it? 

8.       D is completely impervious to pain.  X threatens to break every bone in D’s body if D doesn’t rob a bank.  D robs, is caught, and pleads duress.  What result?  (One-quarter page)

a.       What is it that makes people fearful? If you don’t commit this crime, I’m going to see that you are going to have to stay in a hospital for 3 weeks and pay medical expenses if you don’t rob the bank. What is it that makes people so fearful? If it didn’t have any pain accompanied in it, and just had the hospital stay and hospital bill, would it be ok for a person of reasonable firmness to succumb? Different people react differently to different threats, there is no uniform scale of how people react to things.

9.       D plans to rob a bank.  X, who doesn’t know this, threatens D with death unless D robs the bank.  D robs, is caught, and pleads duress.  What result?  (One-third page)

a.       Why should he get the defense of duress if he was going to rob it anyway? Once you get threatened it is no longer an option to change your mind. So, D can plead duress as a defense.

10.    D has been beaten again and again by her husband, H.  H and D are now living apart.  H calls D and tells D, in a threatening voice, that he needs money and wants D to steal some from the business where D works.  D doesn’t report the threat to the police because she feels that H will eventually “get her” no matter what.  She steals the money and sends it to H.  She is caught and pleads duress. What result?  (One-third page)

a.       What is this scenario like? Question #5? Sort of. What else though? This is like the battered woman’s syndrome. But, this arises where the wife takes against her husband. Here, the action was taken against an outside entity.


Whenever a D is faced with duress, then you should immediately think is there a duress defense and how does that apply.

Problem Set 15


Required Readings:


Dressler, Ch. 24; MPC § 2.08; and materials for Problem Set 15 available as PDF online at



1.  When Dr. Jekyll gets drunk, he turns out to be a real monster.  When he’s in his monster stage, he seems to be out of control and virtually unaware of what he’s doing.  One day, Jekyll gets drunk and kills someone.  As prosecutor in a jurisdiction governed by the MPC, do you charge him with intentional homicide, knowing homicide, reckless homicide, or negligent homicide?  Note: Getting drunk is not itself a crime in your jurisdiction.  Could Dr. Jekyll have a complete defense to any crime?  And what if there’s evidence that Dr. Jekyll, unable himself to kill anyone, got drunk with the hope his monster self would kill?  (Two pages)

b.       The correct answer is he’s guilty of reckless homicide. MPC §2.08(2). If you voluntarily get yourself intoxicated, you are charged with recklessness. You commit the actus reus of the crime and you are charged with having done so recklessly. 2.08(2) says that you would’ve been aware of the risk had you not been drunk. What the MPC is doing is saying when you get yourself voluntarily intoxicated, it’s sort of like a free flowing form of recklessness. It’s going to attach to anything you do later. It’s like you enter into a recklessness lottery. If you don’t do anything harmful you are home free. If you do something harmful, you can be charged with a reckless version of whatever you did. It depends on what you do after you get drunk. What would be the alternative to running this like a lottery? You could say getting drunk was recklessly endangering. The point of when you are in control of taking the risk is when they are drinking, not afterwards. The MPC way is the lottery way. The other way would say you take the luck out of it, when you drink to excess, you are taking unjustifiable risks of other things, and that’s the point when criminal liability would attach. We would look at all the risks of things would happen if you drank too much and we just say how dangerous is drinking to excess and we’d set a penalty for it. The MPC is waiting to see what happens. The MPC says you get drunk, we’ll spin the wheel to see what happens.

c.        Intoxication is treated as an excuse defense. But, notice it’s not a defense at all. Voluntary intoxication is a tool to be used not by the defense attorney, but by the prosecutor. Look at the scheme here. Ordinarily the prosecutor wants to prosecute D for homicide, you have to prove he had a culpable mental state. At the time he did this, D did not have the mental state. At most he’s guilty of negligent homicide. What 2.08 allows the prosecutor to prosecute for reckless homicide. So voluntary intoxication is not a defense to anything. It’s actually an aggravation of the way it is used. It allows the prosecutor to take someone that killed not knowing what he was doing and elevate it to a reckless homicide from a negligent homicide.

d.       Notice 2.08(1). The fact that you were voluntarily intoxicated doesn’t mean that you had the mens rea required. You have to be very intoxicated so much that you don’t know what you are doing, you can’t form the purpose for what you are doing. That’s pretty far gone. The fact that you came in and you say “I was drunk”. That doesn’t even negate the mens rea. 2.08 (2) which kicks in recklessness here, only exists when you show you were so drunk you didn’t know what you were doing. So, voluntary intoxication is NOT the defendant’s friend. It rarely negates the mens rea. And when it does you are still on the hook for reckless mens rea.

e.        All D has to do is raise a reasonable doubt. The prosecutor has the burden of proving the mens rea. It’s not proving you were drunk; it’s raising the doubt that you had a mens rea. The burden is on the prosecutor. Merely introducing evidence that you were drunk, would probably not raise a doubt of your mens rea.

f.        2nd part of the question. Complete defense? If he’s drunk to the point where his actions are involuntary. I was so drunk, this potion gets me so out of control, that I’m no longer an actor. All he has to do is raise a reasonable doubt. You can’t say that I was so drunk that I was not a voluntary actor because you voluntarily drank. If you were the prosecutor, how would you respond to that?

g.        3rd part of the question. Hoping to kill? This is a purposeful homicide. You set things up purposely so the involuntary things will carry out. You set things up so that you are out of control later. The person who thinks he can only commit the crime if he’s really drunk, he’s committed a purposeful homicide. At the time he set this up, did he believe that once he got drunk he would carry it out this way? Suppose that someone knows that he is susceptible to seizures on 10, 2 and 4. He knows if he goes out driving at those times without taking his seizure medicine, he’ll have a seizure. His intended victim is his passenger without the air bag. He has a seizure and the car has a wreck and the passenger dies. He argues that he was unconscious because of his seizure. But, will he get off the hook? No! He set it up that way. It’s all predicted. This is just an indirect medicine. You can use yourself as an involuntary agent of your voluntary self.       

2.  D has always had “good trips” on LSD, though he’s heard of people having bad trips.  This time, however, he has a psychotic reaction and kills someone.  He claims that at the time of the killing he met the legal test for insanity (didn’t know his act was criminal and/or couldn’t comply with the law).  In a state governed by the MPC, should D be convicted of criminal homicide, and should it be negligent, reckless, knowing, or intentional?  What if D had been told by another person that the pill was not LSD, or that LSD never caused “bad trips?”  (One page)

h.       MPC 2.08 (4). This is a pathological or involuntary intoxication (those are disjunctive – you can get to this by either being involuntarily intoxicated OR a pathological reaction you have).

i.         What is the issue here? It’s not involuntary, so ask, is it pathological? He’s on notice that bad trips can happen to people, but anyone who is on notice that you can have pathological reactions, on beer, would that mean that if you had a beer and you had a completely pathological view, would you be able to claim it was pathological? You should know these things do happen. If you know it’s possible to have a bad reaction, why might you differentiate from a legal to an illegal pathological reaction? If you are taking something illegal and you know there is any risk, then you can’t say you took a justifiable risk because you took an illegal substance. That would differentiate the fact that doesn’t normally happen to you, like taking one beer.

j.         If you deny the D the defense of a pathological defense. What’s he guilty of? Reckless homicide. He is voluntarily intoxicated. He would ordinarily come under 2.08 (2) assuming he didn’t do this in order to kill someone. What he’s trying to do is get a complete defense under 2.08 (4). But if we reject that, then he’s just thrown back to 2.08 (2).

k.       What if he were told that LSD never caused bad trips? If someone told him the pill was not LSD? If it’s involuntary, then he can get the defense. Given that you became temporarily insane, you can get there by a pathological reaction or by being involuntary. 2.08 (4).

l.         What if he knows he’s been getting an illegal drug, doesn’t know what type though? He doesn’t even think he’s taking a risk at all. The MPC doesn’t speak about that, it just talks about whether the person knows whether he is susceptible to it. If he doesn’t know he’s susceptible, but he’s negligent, then you have a hybrid case. It appears to get the defense entirely, though he has some level of culpability. If it’s an illegal substance, the person is probably going to be reckless. With respect to what he does when he is pathologically intoxicated, he doesn’t meet the normal mens rea. But, he was negligent in taking the intoxicant, so that should make him guilty at least of negligence in what he did. The MPC just talks about if it’s a pathological reaction or not, but there are obviously degrees here.  

3.  D is unaware that he is allergic to spinach in such a way that, when he ingests it, it causes a psychotic reaction equivalent to legal insanity.  If D eats spinach and then kills someone, is he guilty of homicide under the MPC?  (One-half page)

m.     Does it make a difference that it is spinach and not an illegal substance? It doesn’t matter that something is called an intoxicant. Whatever you introduce into the body that causes the reaction. (WHAT WAS THE POINT OF THIS PROBLEM?)

No, it’s pathological because it’s self-induced. Spinach, just as much as anything else can cause intoxication. Whatever you introduce intro into the body that causes the reaction can be an intoxicant.


4.  D is given liquor by X, who tells D that it is ginger ale.  D has a severe reaction to the liquor and becomes very violent, though not legally insane.  D kills someone while in this condition.  Does D have a defense under MPC § 2.08?  (One-half page)

n.       The fact that you are a nasty drunk even if you didn’t do it voluntarily is not a defense at all. What if D knows he gets nasty when he drinks? He tries to stay away from alcohol. But, someone slips him a drink. No defense. As long as he knows what he’s doing, he’s guilty. As long as he knows what he is doing, being involuntarily intoxicated is not a defense by itself. Just because voluntary intoxication gets you into this pickle of 2.08(2) doesn’t mean that involuntary intoxication is better for you. The intoxication of any kind is only going to be a factor if you lack the mens rea at the time. It doesn’t make a difference if it was voluntary or involuntary. There is nothing in the problem that suggests that D doesn’t know what he is doing. If someone is involuntarily intoxicated and that in itself doesn’t do anything to get him off, nor does his inhibitions to stop doing this if he was blah blah…It’s only distinguished between voluntary intoxication if you lacked the mens rea. In general, intoxication is NOT a defense. Doesn’t matter if it’s voluntary or involuntary. It just makes it worse for you if it’s involuntary if … If you say I didn’t know what I was doing, you are still guilty of recklessness. When you are involuntarily intoxicated then you are being…


Problem Set 16

Required Readings:


Dressler, Chs. 25-26; MPC §§ 4.01-4.03; and materials for Problem Set 16 available as PDF online at



1.                   Your client has been charged with murder (intentional or knowing homicide) in the death of his wife.  You have a psychiatrist who will testify that your client is mentally ill and delusional.  Your client has told the psychiatrist that at the time of the killing he believed his wife to be a “giant spider” that he had to beat to death with a hammer.

The jurisdiction you are in has adopted the MPC.  The insanity defense (4.01) must be proved by the defendant by a preponderance of the evidence.

Should you plead insanity?  If not, what other arguments are available to you to defeat the murder charge?  Discuss the pros and cons of the alternative defense strategies in this case.  (Consider burdens of proof, post-acquittal disposition, etc.)  (One and one-half pages)

(Intoxication discussed, overlap from previous lecture)

MPC categories that MPC uses--binary distinction between voluntary and involuntary intoxication.  Categories overlap to some extent.  Cases code does not cover.


MPC 4.01 “Insanity Defense”

Not all that commonly pleaded, and when it is, it rarely results in acquittal for the defendant. 


Should you plead insanity?

If you assume facts are true, can argue that Δ does not have the mens rea.  Burden on Δ is to create reasonable doubt to jury.  Doesn’t have to prove that he didn’t intend to kill his wife, what he has to do is create a reasonable doubt as to whether he has the knowledge or intent to kill his wife.  Prosecutor must prove intent or knowledge that Δ killed his wife beyond a reasonable doubt.


Point is that it’s not that you can’t use insanity defense, but rather whenever you have evidence of this type, you don’t necessarily run to the insanity defense.  Why?  If you use insanity defense, you must show that you are insane.

Same evidence you can use for insanity can be used for other purposes.


If you are acquitted by raising a reasonable doubt, Δ is acquitted.

If you are acquitted by reason of insanity, usually there is an automatic commitment procedure, with periodic review to see if you are still suffering from a mental illness.   You are confined until you are no longer insane.  This is an indefinite period of time.

Civil commitment: state has burden of proof, lower than criminal burden, but higher than preponderance of evidence, must prove by clear and convincing evidence that the person is mentally ill and dangerous to himself or to others.  Can last as long as criminal commitment.


Any other homicide charge you may be able to bring?  Negligent homicide.  Should have known his wife was not a spider.


What is a reasonable crazy person?


Problem designed to get you to notice that the same evidence of somebody’s insanity can be used for different purposes.  The evidence does not have to be used just for insanity.  It may be relevant to some other element of crime.

2.                   Your client killed her husband and is charged with murder.  She claims that she knew “he was cheating on her and was also attempting to drive her crazy by having space aliens send her messages on the TV.”  She also claims that she was “seized by an irresistible urge to kill her husband, an intense pressure that she could dissipate only by killing him.”  A psychiatrist who has examined her has diagnosed her as a “delusional paranoid.”  A physical examination has revealed the presence of a brain tumor that the psychiatrist believes is the cause of the client’s mental problems.

Does your client have a defense under MPC § 4.01?  Other defenses?  As a lay person, would you want to see her convicted?  (One and one-half pages)


Does the brain tumor have any particular significance in the problem?  Not really, it is not necessary or sufficient.  It can just be something you use to bolster claim of insanity.


Does the first prong of the defense-lacks sufficient mental capacity to appreciate the criminality of the conduct, does that apply here? 

Does the fact that her mental problems led her to believe that he was cheating on her effect the situation here?  The fact that he was cheating on her is not a sign of a recognized defense.  The fact of if she was delusional or not would not exculpate her.


What about the fact that she thought space aliens were driving her crazy through the TV?  This also is not exculpatory.


What about the second prong?  The second prong of the MPC is what used to be referred to as the irresistible impulse prong.  Deals with their volitional ability.  Controversial part of the insanity defense.  What is the problem with irresistible impulse as grounds of defense?  The problem is the how to set up a test as to whether or not something is an irresistible impulse. Potato chip hypo.  If you eat one potato chip, and then you have an impulse to eat another.  But if there was a jail sentence for eating another chip, most of us could resist.  Try to think of a test to determine what an irresistible impulse is.  Very difficult to come in and say that this defendant could not have resisted.  If something is irresistible and you could prove it as a defense attorney, how might you use this other than under section 4.01?  You could claim it was not a voluntary act.  Advantage of this, you could raise reasonable doubt as to whether it is a voluntary act (actus reus).  The benefit of this is that the burden is less (raising a reasonable doubt) and also that the defendant will be acquitted, rather than committed to an asylum.


The first prong is the MPC’s reworking of the McNaughton rule.  The authors softened the test a bit by using words like ‘substantial capacity.’  Deals with cognitive ability.


Brackets, the MPC authors were uncertain among themselves whether it should be worded as criminality or wrongfulness.  Criminality is ability to understand what law requires.

3.                   Robert Harris is a sociopath convicted of a double homicide.  The MPC does not consider sociopaths to be excusable under 4.01.  Read the following account of Robert Harris’s crime and discuss whether he is a fit subject for criminal punishment as opposed to some other legal response.  (One page)


This question gets at a deeper issue dealing with people who are sociopathic or psychopathic.  Psychopath is someone who lacks empathy, typically people who are usually fairly intelligent, they do understand the law, they understand right and wrong in the following sense, they can identify things people regard as right and wrong.  Psychopath lacks any sense of why something being right or wrong is a reason for acting.  Understand that people get mad at them when they do things and that is a reason for acting in a certain way.


What should we do with people who commit crimes but do not meet the condition of the insanity defense?  They understand that what they did violated the law.  What is the appropriate response?  Clearly, these people are dangerous, so some sort of effective protections is necessary.



Problem Set 17

(Inchoate Crimes-Attempt)

Required Readings:


Dressler, Ch. 27 (to p. 430, then pp. 440-445); MPC § 5.0



1.                   Adam intends to have sexual intercourse with Scarlett, who is, unbeknownst to Adam, under 16 years of age.  They are in a motel, undressed and about to get into bed, when the motel manager, sensing that Scarlett is under age, knocks on the door and disrupts, permanently, the affair.  Adam is reported to the police by the manager, and, after a police investigation, is charged with “attempted statutory rape.”  The jurisdiction has adopted the MPC’s definition of “attempts.”  Its statutory rape statute has been interpreted to make the age of the girl a strict liability element.  What result?  Would it make any difference that there was another, less serious crime, “sexual intercourse with someone under 18 years of age,” that Adam was aware that he was attempting to commit?  (One page)


What result?  5.01(1) distinguishes 3 different types of attempts.  5.01(1)(c) describes incomplete or substantial step attempts.  Incomplete in the sense that the attempter has not done everything necessary for the actus reus of the crime to occur. 


Describe a complete attempt at statutory rape.

(1) He thinks that she is underage and she isn’t.  5.01(1)(a)

(2) If he thinks he is having sex, but he isn’t.  5.01(1)(a)

5.01(1)(a)-conduct which if the circumstances were as he believed them to be, he would be guilty of statutory rape.


Attempts under 5.01(1)(a) are always complete attempts.  Something missing in the actus reus that makes it not a complete crime, but the actor thinks everything is there for the completed crime.  Such attempts are fairly straightforward.



Is this a complete or incomplete attempt?  Paradigmatic case of an attempt under such a statute would be shooting at someone and missing. 


Common law required that you had the purpose of bring about the result.  MPC changed that either purpose to bring about the result, or the belief that you were going to bring about the result.  Belief is a change from the common law.  Common law required that you had the purpose of bringing out the result.


Old CL hypothetical.  2 people plant bombs on planes. Bombs set to go off in the air.  Both people have insurance policies.  One has an insurance policy on a passenger, the other has an insurance policy on the place.  The bombs don’t go off.  At common law only one of the persons was guilty of attempted murder, the person with the insurance policy on the passenger.  The person who plants the bomb on the plane with the insurance policy on the plane, wasn’t his purpose to kill anyone, but it was his belief.  Under common law, he would not be guilty of attempted murder, but 5.01(1)(b) changes this.  Under MPC belief that you are bringing about a result will count. 


Attempts under 5.01(1)(b) are not completed attempts.  Example; a time bomb.  You can always change your mind.  Some of 5.01(1)(b) are completed attempts, and some are not.  The lit fuse kind of attempts are not necessarily complete.  Light fuse is the last act necessary, you meet the definition of the attempt.  Fill in the without further conduct on your part.  It is different from shooting the bullet in that you can take it back.  For a period of time of which the fuse is burning it is within your power to put it out.  Haven’t completed the attempt yet.

If the circumstances were as he believed them to be.  5.01(1)(c)  What if Adam says, under the circumstances as I believed them to be, Scarlett was over 16.  Why doesn’t that get Adam off the hook here?  Language is always inculpatory, not exculpatory.  By imagining that circumstances are criminal, then you can be guilty, but not vice versa.  This language is only used to inculpate, it is never there to exculpate. 


What if Adam says that in the 30 seconds left, if he had discovered Scarlett’s age, he would have desisted.  5.01(1)(c) it is always theoretically possible that the Δ would have changed his mind.  There is still a chance to take it back.  Adam could have found out Scarlett’s age in the next 30 seconds and would have desisted.  Many standard crimes are incomplete attempts.  For example, burglary.  Enter into a home with intent to commit a felony.  Can you change your mind?  Of course.


The problem with incomplete attempts is that the person can change their mind, however unlikely the possibility is.

What if Adam says that his intention was only to have sex with overage girls?  What type of purpose does he have?  A conditional purpose.  Condition negates the criminality of the attempt.  Here is the problem in the case.  Adam has:

Intent to have sex on condition that S is over 16. 2.02(6) this condition negatives the harm or evil that the crime is intended to prevent.  But Adam has a factual premise here as well.  Factual premise: S is over 16.  That factual premise is a mistake. Therefore the intent to have sex with Scarlet.  The conclusion is a criminal attempt.  His belief is a factual mistake, but you get to the conclusion through an intent that is not criminal via a factual mistake.  That’s one of the problems here.


Another kind of incomplete attempt that doesn’t involve strict liability elements.  Suppose that hot blooded boyfriend approaches girlfriend’s house with a gun.  He intends to shoot girlfriend if she is being unfaithful, but he thinks the probability of her being unfaithful is extremely low.


Intent to kill, if unfaithful.  Does this condition help out the defendant.  Unlike above example, this condition does not negative the criminality, unfaithful or not, it is still a criminal attempt.  Is he guilty under 5.01(1)(c)? Mens rea problem, defendant may change his mind.  The other problem is an actus reus problem.  How close do you have to get to satisfy an incomplete attempt?  5.01(2) conduct which may be held to be a substantial step.  These examples could be, you can’t rule them out.  There is nothing more definitive than that it must be a substantial step.


Problem: The actor may discover something to change his mind in the interim. second thoughts, remorse, anything could occur.

Problem: How do we define how close you have to be (not a problem with completed attempts.


2.                   Driving with defective brakes is a strict liability offense in State X, which has adopted the MPC’s definition of “attempts.”  D attempts to start his car, which, unbeknownst to him, has defective brakes.  Has he committed the crime of “attempted driving with defective brakes”?  (One-half page)


Answer, yes.  How is he guilty of an attempt, and under what provision of the MPC?  5.01(1)(c).  Why isn’t it a completed attempt?  Because starting your car is not the same thing as driving.  If he is intending to drive the car, and if he has the kind of culpability otherwise required (he doesn’t need to be culpable since it is a SL offense).  An example of a 5.01(1)(a) “completed attempt”- would be that he must think that he is driving or he thinks he has defective brakes but he doesn’t.  The fact that he thinks the brakes are fine doesn’t exculpate him.  Circumstances as he believes them to be is solely an inculpatory clause…


Strict liability crime, aka driving with defective brakes.  What if you are driving with non defective brakes, you believe they are non defective, can you make out a theory in which you would be guilty of driving with defective brakes?  No culpability required, so he has the kind of culpability otherwise required (none).  Problem with strict liability is that you can end up with some pretty absurd results.  Everybody is acting with the kind of culpability otherwise required under strict liability crimes.  Digression, can omit from the notes.   

3.                   Carla knows that driving while intoxicated is a crime in itself.  She also knows that it can constitute the separate crime of “reckless operation of a motor vehicle.”  She also knows that killing someone as a result of drunken driving can constitute the crime of “reckless homicide.”

Carla is attending a party, where she intends to get “roaring drunk,” and after which she intends to drive to the beach.  She downs 10 Margueritas in a row in just a few minutes, then hops in her car and begins to drive.  She expects the Margueritas to “kick in” at any moment.  It turns out, however, that the liquor had been left out of them, and that Carla has consumed only 10 glasses of nonalcoholic Marguerita mix.

Has Carla committed the offense of attempted drunk driving, attempted reckless operation of a motor vehicle, or attempted reckless homicide?  (One page)

1 hour mark, go over again.


Is she attempting drunk driving?  Yes, this is a complete attempt.  5.01(1)(a).  There is a separate crime, reckless operation of a motor vehicle.  Is she attempting to be reckless, or is she just reckless?  In this case, she thinks she is imposing the risk.  She is not attempting to be reckless, she is just reckless.


5.01-can you construct a situation where you actually would have attempted reckless driving?  A situation that would really be attempted reckless driving.  Yes, if she took a substantial step, if she would be driving reckless operating a motor vehicle, were she to be driving it, believing she is drunk.  On her way to drive, but she isn’t driving yet, she is taking a substantial step, she plans to drive thinking she was intoxicated.  A 5.01(1)(c) incomplete attempted recklessness. 


If she were to kill somebody, has she committed attempted reckless homicide?  You can’t ordinarily have attempted reckless result crimes.  If you are intending to bring about the result, then you are no longer reckless about it.  Ordinarily you cannot have an attempted reckless or negligent result crime.  There is an exception however (see problem 4). 


4.                   Dan unreasonably believes Victor is about to shoot him.  Dan draws his gun and fires at Victor, believing that if the bullet hits Victor where Dan is aiming, there is a high probability that Victor will die.  Dan’s marksmanship is poor, however, and the bullet misses Victor.  Has Dan committed any crime?  (One-half page)


What would Dan be guilty of if he were to hit and kill Victor?  Negligent homicide.     Sincere belief of implying self defense. Substitue negligence in for mens rea.


What is he guilty of here? Dan is guilty of attempted negligent homicide.  This is the exception talked about above in problem 3.  You can have an attempted negligent or reckless result crime, but only by way where the recklessness or negligence comes in by way of defense. They are either purposely or knowingly killing someone here, attempt under 5.01(1)(b), general mens rea is not negligence, but they are negligent in thinking that they had a defense (same thing for recklessness, it works the same way).  You can have an attempted negligent or reckless result crime, but only if the negligence or recklessness comes in by way of defense.


5.                   For some time State X has deemed purchasing burglar tools with the intention to burglarize “attempted burglary.”  It now enacts a new statute making such a purchase the separate crime of “purchase of burglar tools with intention to burglarize.”

Suppose Fred is planning a burglary and goes into the hardware store intending to purchase burglar tools.  Can he be punished for attempting to violate the new statute?  Can the state make what he has done a separate crime and then punish some still more preliminary act as an attempt?  (One page)


How far back can you go? Policy question to think about.  Dressler says that every successful crime always includes an attempt within it.  This is wrong according to Alexander, you can have murder committed through extreme recklessness, there is not an attempt within extreme recklessness.  Most of the time you commit an attempt when you commit a crime, but not when you commit a crime through recklessness or negligence.  Crimes committed through recklessness or negligence do not include attempts.



Problem Set 18

Required Readings:


Dressler, 430-40, 445-48; MPC § 5.01



1.                   Two men go out deer hunting on October 15, which is, in fact, the first day of the legal hunting season for deer.  One believes that the correct date is October 14.  The other knows the date, but believes that the hunting season begins on October 16.  They are both charged with attempting to hunt out of season.  What result under the common law?  Under the MPC?  (One page)

The first thing to know is that they have not committed any crime.  They are hunting in season; however one person believes that the correct date is October 14th so this person thinks he is hunting out of season.  This person will be called Mr. Fact.


The other person is not confused about the date, he knows the day, however what he thinks is that hunting season starts on the 16th of October.  So this person also thinks he is hunting out of season.  This person will be called Mr. Law.


They can’t be charged with hunting out of season because they are not hunting out of season.  They are charged with attempting to hunt out of season.


Result:  Factual impossibility doesn’t get Mr. Fact off the hook.  Legal impossibility gets Mr. Law off the hook.  Person number 1 will be called Mr. Fact, aka he is mistaken as to the day.  Person #2 is Mr. Law, knows the date, but makes a mistake with the hunting law.


Mr. Fact:  If it were the 14th of October as he believed it to be, he would be guilty of the crime.  Under 5.01(1)(a) it looks as though he would be guilty of an attempt:


Every attempt exhibits factual impossibility.  You tried to commit the crime and you failed.  Why did you fail?  You could have failed for a variety of reasons, i.e. you think the gun was loaded, and it wasn’t.  You aimed the gun thinking it would hit the target, and it didn’t.  Given what you did and the way you did it, the crime was impossible as a matter of fact, why do we know this, because you didn’t succeed.  You failed and you failed for some reason.  If taken literally the law of factual impossibility would undermine the law of attempts. 


Under the MPC, if you shoot and hit somebody who is already dead, this is an attempt.  Under the common law, judges would be confused about these things.  This is no different from shooting at a stump thinking it was a person.  Once you fail to notice that all attempts exhibit factual impossibility, problems arise, i.e. the common law.  The common law tried to make distinctions where there are none and thus confusion has arisen.   


What about Mr. Law.  If you read ‘the law’ into the term attendant circumstances, and if the law were as he believes it to be, then he would be guilty of an attempt.  Is this the proper way to read 5.01(1)(a)?  No.  The MPC does not read attendant circumstances to include the law.  We don’t want people imaging laws that don’t exist and then thinking that they are breaking them.  Mr. Law has made up the law, a law which does not exist, i.e. hunting season starts on October 16th.  What would be the punishment?  You would have to invent a law and it’s penalty.  There is a very thin difference between Mr. Fact and Mr. Law.  They don’t look different in culpability, they are both willing to violate a law, moreover there is a hunting law, but it is not the hunting law that Mr. Law thought it was, it is a close cover, it is right next door, he is just a day off.  Nonetheless there is that distinction. 


Factual impossibility doesn’t get Mr. Fact off the hook.  Legal impossibility gets Mr. Law off the hook. 


Complicate things:  Suppose the hunting season doesn’t give a date, but says that it is legal to hunt when there is a green flag hanging over the lodge, and it is illegal to hunt when there is a red flag hanging over the lodge. Somebody comes along and he sees the flag and it looks to him as if it is a red flag.  He is color blind, it is actually a green flag.  He says, I’ve got my gun, etc.  I’m going to go and hunt.  He didn’t break the law because the green flag was up.  He thought he was breaking the law because he thought it the flag was red.  Is this a factual mistake or a legal mistake?  Not sure is the right answer.


What about if the hunter read the statute wrong because of his astigmatism.  He read the statute as 16th instead of 15th.  Not sure is the right answer.


What makes something law?  A bunch of facts make up the law, facts about what the legislature voted on, etc.  The law is just constituted by facts.  Because the law is always made up of facts, you can always convert a mistake of law into a mistake of fact and vice versa.  The line between the factual impossibility and the legal impossibility is an impossible line. 



2.                   Mr. Taafe is caught smuggling marijuana into England, although he sincerely believed he was smuggling currency.  Suppose the “smuggling” currency into England is not a crime.  May he be charged under the MPC with “attempted currency smuggling”?  (One-half page)


No, he may not.  He may not be charged for attempted currency smuggling because there is no currency smuggling statute.  Can you imagine something in the law where it is still not a crime to smuggle currency, but you would be able to charge Mr. Taafe with attempt?  Yes, if it was a more general statute, i.e. for ‘contraband’ in general and the definition of contraband is listed somewhere else.  Then we can say that he made a mistake of fact as to what contraband is.  If we break it down into several statutes, x, y, z and there is nothing for currency, then there is no statute for him to be charged with attempting to violate.  If you break it down you could theoretically have different punishments.   

3.                   Lady Eldon thinks French lace is a dutiable item and attempts to smuggle it past British customs.  She is caught, but is then told that French lace is not on the current list of dutiable items.  The customs statute proscribes “failure to declare any dutiable item.”  Has she committed the crime of “attempting to fail to declare a dutiable item”?  (Three-quarters page)


If we read this as a general failure to declare dutiable items, then we can charge her with attempting to violate the statute.  If we deconstruct the statute into its components and view it as a separate statute for each dutiable item then there is not law for her to attempt to violate.  This is the same as the question above.


All of this stems from the fact that every attempt fails to actually break the law, that is why it is an attempt, and in failing it fails because it was factually impossible, and by virtue of being factually impossible, it is also legally impossible since the law is just made up of facts.


4.                   Defendant (D) believes in voodoo.  Desiring to Kill V, D sticks a pin into an effigy of V.  He now believes V is dead.  Has he committed “attempted murder” under the MPC?  (One-quarter page)


MPC- 5.05(2) of MPC- Mitigation: 

Sticking the pin in the voodoo doll would be a completed attempt under 5.01(b) however this offense would be mitigated under 5.05(2).  The motivating reason for the MPC authors to include this provision is the voodoo doll example.  There is no justification for this.  People who fire unloaded guns with the intent to kill someone are no more dangerous than the person who sticks the voodoo doll.  Both are just as culpable and there is no reason to surmise that one is more dangerous than the other, however the MPC authors included this to make the code more viable. 

5.                   (a) D has just put the final dose of poison in V’s wine glass, when he suddenly has a change of heart.  He rises from his chair to grab the poisoned glass from V, but he hits his head on the chandelier and passes out.  Fortunately, D’s accident so consumes V’s attention that V fails to drink the final dose of poison.  Has D “abandoned” his attempt under the MPC?  (b)  Suppose V has drunk the final dose, but D knows he still has time to administer the antidote when he hits his head.  What mens rea does D have in the resulting homicide?  What if D fails to prevent V’s death because V resists D’s attempt to get the glass back?  What if there is a crime of “placing poison in consumables with intent to kill,” and D puts sugar in V’s drink, thinking it is arsenic, discovers his mistake, and then has a change of heart?  Attempt?  Abandonment?  (One and one-half pages)


a.)  5.01 (4)- Renunciation of criminal purpose.  Remember “renounce” rather than “renunciate.”  Does it make any difference that his plan to grab the glass didn’t get executed?  There is nothing to suggest that you have to prevent the crime in any particular way. This section is not a defense to all attempts however. What type of attempts do you not get a section 4 affirmative renunciation to?  Section 5.01(a).  Why? You cannot renounce a complete attempt.  When you have completed the attempt, the crime is done, it is over.  How can you renounce an attempt under section 5.01(b)?  It applies to the incomplete forms of 5.01(b), such as the lit fuse type of situation.  Attempts under 5.01(b) are incomplete because while it is in your control, you can take it back.  The affirmative defense under 5.01(4) gives you an incentive to renounce the crime.  It encourages the person who has lit the fuse to extinguish it before the explosion. 


The curious thing about incomplete crimes is that you can take them back.  If you have a change of heart and you prevented the crime, the MPC doesn’t say anything in regards to the situation where you prevent the crime from occurring in a strange way.  For example if you want to put out the fuse with a blanket, but you faint and fall on the fuse and it goes out that way.  The MPC doesn’t distinguish or clarify what should happen in such a situation.


b.)  What mens rea does D have in the resulting homicide?  When he puts the poison in the glass he has purposeful mens rea.  Later when there is still time to administer the antidote, his attitude towards the killing changes.    This is a case where the criminal actor has a change of heart at a time when he still thinks he can act on the change of heart.  There are no cases or law on this particular subject.  This scenario comes up due to the strange idea of incomplete crimes.


c.)  Final exam type question.  It is a 5.01(1)(a) crime, these attempts are complete and cannot be renounced.  He can’t avail himself of the renunciation because it is a completed crime.  The crime here not homicide, rather the crime is placing poison in consumables with intent to kill.  By placing the poison in the drink, he has completed the attempt at that time.  It is the type of question which asks you to think carefully about what the crime actually is.  The crime is not killing.


Problem Set 19


Required Readings: Dressler, Ch. 28; MPC, § 5.02



1.                  D knows that X, his next-door neighbor, is the head of a criminal organization, and that X will kill any members of the organization who X believes are disloyal.  D hates Y, who works for X.  One day, while D and X are chatting over the back fence, D “lets slip” that Y is an undercover police agent.  X does not know that D knows X is a mobster, nor does X know that D knows Y works for X.  Is D guilty of soliciting murder?  (3/4 page)

a.       What’s missing in this case that would be present in an ordinary off the rack solicitation?

b.      There’s no mutual transparency that there is in the ordinary case of soliciting.

c.       If X carries this out, he’s going to think it was his own idea. He’ll think he’s in this by himself. He’s not going to know that D is on his side. He’ll just think that D made an unfortunate revelation.

d.      D is not causing X to do this, he is giving X an incentive to do something. This is different from viewing X as a puppet that D is pulling the strings for.

e.       X is not an innocent instrumentality because he believes he is acting alone.  X is not D’s puppet.

f.       X thinks he just got lucky to find this information about Y. He doesn’t know that it wasn’t an accident.

g.      We’ll call this situation oblique solicitation. You are being indirectly solicited. How would you read the code to apply to oblique solicitation? The question is not the mens rea (D already had the mens rea). The question is the actus reus (command, encourage, or request). Does D meet the actus reus?

h.      It’s not clear here, there is some indication in the commentary that this would be regarded as a solicitation. When you get to complicity, the MPC changes the common law: the person who gives aid to help someone else commit the crime, that person can be guilty of complicity if it hasn’t been used or doesn’t happen. (You leave the .45 on the dresser, the night before your friend is going to rob the bank, the robber doesn’t see the gun and doesn’t even use it. But, the guy who left the gun is guilty. He is an accomplice.) You could imagine that they would want to get D in this problem here.

i.        In the normal case of solicitation, you feel that somebody else is on your side. In oblique solicitation, X thinks he’s all on his own, he doesn’t know that someone is on his side.

j.        It doesn’t have to be a case necessarily where you would have otherwise been motivated to do it.

k.      (MPC §5.02 (2): An example would be when you send a letter to kill someone and it never gets to the person. It has been uncommunicated. You are still guilty of solicitation.)

l.        The last part of 5.02 (1). Complicity. The one who solicits a crime will be complicit. It looks redundant, but it is meant to cover the following case: A case in which you don’t solicit a crime, rather you solicit somebody to give aid to someone else who is committing the crime. So and So is planning a robbery, go and give him your car. By soliciting aid to a 3rd party, you’ve established your complicity to that crime. You don’t have to actually solicit the crime. You can solicit some act of aid to someone else that would make you guilty to the crime.  

m.    MPC §5.02 (1): Let’s discuss attempt. Theft. Atempted theft. Or Nothing. Dressler is wrong. I don’t have the kind of culpability required for attemepted theft. If I know the pocket is empty and I solicit someone to pick pocket, then I’m not guilty of anything. I can’t be encouraging him with the mens rea otherwise required here. The person I’m soliciting has the mens rea, but I’m interested in the solicitor. The solicitor doesn’t have the kind of culpability. The reason why the MPC put in attempt. People don’t usually solicit attempts. People solicit crimes. It’s like says you attempt an attempt. You don’t have the culpability (the mens rea) required if you think the pocket is empty.  No one goes around soliciting attempts. People go around soliciting crimes. (Ex: Sting operations are examples of soliciting attempts.)

n.      What if you solicit someone to commit a crime, or what you think is a crime, except that it is justified. Back to lesser evils. The town can only be saved by diverting the water to V’s farm. D doesn’t know anything about the flood. He wants to solicit the crime, but it actually saves the town. How should the solicitor be treated? Did he solicit conduct which would constitute a crime? Maybe the person who was solicited knows all about the situation, he knows that this will save the town. The solicited has a complete defense. In order to get the defense of lesser evils, it’s not sufficient that it turned out that it was a lesser evil, you also have to have believe that this is a lesser evil in order to get the defense. The person who thinks he is injuring V, but saves the town, he doesn’t get the defense. The unknowingly justified person is always guilty.

o.      Can there be attempts to solicit? You are about to put the mail in the mail box to kill the person when you are seized. Not quite 5.02 (2).   

p.      When you solicit a crime, it’s a crime in itself to solicit a crime. But you are also potentially an accomplice if the crime is carried out and that makes you guilty of that crime. If the crime is not carried out, if you would’ve been an accomplice in it by virtue of soliciting it, you are guilty of attempting it. (MPC §5.01 (3))If you would’ve been complicit in a crime had it been committed, you are guilty at an attempt at it. When you solicit a crime, you are potentially an accomplice if its carried out. If it’s not carried out, then you are still guilty of attempt under MPC 5.01 (3). One way you can be guilty of attempt is by soliciting a crime that doesn’t occur.


2.                  D, a political radical, has been informed that X is a contract killer.  X is in fact an undercover police officer.  D offers X $100,000 if X will assassinate V, a political figure.  Is D guilty of soliciting murder?  (1/2 page)

a.       For a solicitation to occur, neither the solicitor nor the solicited party needs to perform any act in furtherance of the target offense. The solicitation is complete the instant the actor communicates the solicitation to the other person. Thus a solicitation occurs even if X agrees but does not intent to commit the crime.

b.      What’s the significance of the fact that D is a political figure? One of the stock kinds of cases that comes up under 1st amendment freedom of speech is a case where the D goes out and tries to insight his followers to commit a crime. You have freedom of speech, so what you say shouldn’t make you guilty? Solicitation is normally committed by means of speech. You are encouraging someone to do something. At some point you come up against freedom of speech. This is a crime that frequently involves speech.


3.                  D wants to get his acquaintance, X, who D believes is a burglar, off the streets.  He therefore tells X that he knows that a neighbor, Y, will be gone for the evening, and that Y keeps a lot of jewelry in the house, which has no alarm system.  D tells X this because D intends to have the police stake out Y’s house and catch X in the act.  Is D guilty of solicitation?  (3/4 page)

a.       X if he goes to Y’s house with the intent to take the jewelry. He’s guilty of burglary. How is D’s plan going to work unless X commits a crime? What kind of culplability does he need? D is not planning to keep Y’s jewels. He does want X to go in there to deprive Y of his jewelry. Go back to what we said about attempts. What kind of a crime is burglary? It’s an incomplete attempt at the further felony you were going to commit on the premises. This is a case where the crime is itself nothing but an attempt at something else and if D believes that the attempt is going to be unsuccessful, then it’s similar to encouraging the pickpocketer to pick the empty pocket. When this is done by the police, it’s called a sting. This is just a private sting.

b.      This is tricky, because he is soliciting the burglar. All you have to do is want the person to enter with an intent to take something.

c.       Even though he is promoting a crime, because it is an incomplete attempt at something, he’s really not guilty of soliciting the burglary. (This problem is controversial.)


4.                  The Godfather tells Soldier, “Before you can be a full member of the Mob, you must carry out a killing, which in your case will be the killing of Vinnie.”  The Godfather is indifferent to whether Soldier carries out the killing because he is indifferent to whether Vinnie is killed and indifferent to whether Soldier passes the initiation rite.  Is Godfather guilty of soliciting murder? (3/4 page)

a.       This is like the satanic cult. You have to kill someone to be a made man. Here’s a list of potential people you have to kill. You have to have the purpose of facilitating the crime. If the Godfather is indifferent, then he doesn’t have the purpose. The same requirement is true for complicity. He doesn’t have the purpose of facilitating the crime.

b.      Juries and Judges cheat on this particular one. Even though the legal standard is purpose, they essentially think if you don’t have any good reason for this and you know there is a high probability that it will be carried out, they find the D guilty even if the purpose wasn’t even present.

c.       Solicitation: Most of these crimes turn on the mental states of people. People are good at reading other people’s mental states. (Dogs can read our mental states: Did we trip and hit the dog or intentionally kill the dog.)

d.      The important thing about this problem is that the solicitor has to have purpose that the crime be committed, in order to be guilty of solicitation. 


5.                  D tells P, “Kill V.”  D’s purpose, which he reveals to P, is to have V killed because V has been unfaithful to D.  “Otherwise,” D tells P (truthfully), “I wouldn’t want her dead.”  Is D guilty of soliciting V’s murder?  Does it matter whether V was unfaithful to D?  Does it matter whether D -- or P -- might discover -- or come to believe -- that she was not unfaithful before the contemplated time of the killing?  Is D guilty of soliciting a violation of federal law if V is an undercover federal officer, and killing a federal officer is a federal crime even if D has no reason to know that V is a federal officer?  (1 and ¼ pages)

a.       Suppose D says I want her killed only if she’s unfaithful (condition), does his condition negative his criminality? No.

b.      It doesn’t matter whether she was unfaithful.

c.       What is the important point in time? When he makes the solicitation. This is the key time. The fact that the condition might be negative in the future, doesn’t matter. The key time to focus on is the time of the solicitation. Even if the condition is very remote, you are still guilty of solicitation. You have shown the condition is very remote.

d.      None of these things really matter.

e.       The fact that there are conditions doesn’t matter. It doesn’t make a difference if the condition negates the criminality.

f.       Is D guilty of soliciting a violation of federal law if V is an undercover officer? If it’s strict liability, then D is guilty of it. You can attempt something and there is a strict liability element, you don’t have to have any more mens rea for the completed crime. You can solicit a crime, so you solicit murder + the status of an officer, turns it into a federal offense. Even if you didn’t know he was an officer, you are guilty.

g.      The solicitor has to have the culpability required. The solicitor has to have the purpose that the other person carry out the actus reus of the crime. In this case, it’s met. In this case, he’s got the culpability otherwise required and he has the purpose.

Problem Set 20


Required Readings:


            Dressler, Ch. 29 (to p.478)



1.         D says to X, “Let’s go knock off a liquor store.”  X says nothing, but proceeds to get into his car, open the passenger door for D, and then drive to a liquor store.  Is D guilty of conspiracy to rob a liquor store with X?  Is he if X is, unbeknownst to D, an undercover cop?  (One-half page)


What’s the actus reus of conspiracy i.e. what’s the conduct that counts as conspiracy?

Making the agreement.

What’s the mens rea?

Purpose to promote or facilitate the crime, meaning the promote or facilitate the actus reus of that crime. We don’t have to care whether they carry it with mens rea, we’re just trying to get them to carry out the actus reus of that crime. Plus, having the culpability otherwise required for that particular crime.

The only difference btw solicitation and conspiracy is that the actus reus of the solicitation is the purpose, command, or request. The actus reus of conspiracy is the agreement. Most solicitations, if they’re accepted, result in a conspiracy. You can solicit a crime w/out a conspiracy, a unilateral request, which is not followed by any kind of agreement. It might be followed up by the crime. Like unilateral contracts – you make offer, the offer is carried out by performing whatever it is you requested, and if they do, that becomes a unilateral K. Solicitations can be followed by a conduct. If you have a solicitation in which you get an affirmative response, they’re structurally similar. The only difference is a different actus reus.

Yes, there could be.

What would a jury have to infer from the conduct stated here?

That there’s an implicit agreement. When you conspire with someone, you want an agreement. You don’t necessarily care about the other party’s culpability.


Is he if X is, unbeknownst to D, an undercover cop?

What’s missing in this scenario?

Common Law: Plurality conspiracy agreement. A can’t be agreeing with B if B is not agreeing with A. It takes two to agree. That’s the very notion of agreement.

MCP: Adopts unilateral conspiracy. D could be conspiring with X even though X is not conspiring with D. That may seem counterintuitive. You could take the view that D is attempting to conspire with X, but D’s going to fail b/c X isn’t agreeing with him. You could view unilateral conspiracy as an attempt to conspire, and since the MPC treats attempts essentially equivalent to the crime, since attempts would be just as bad as conspiracies, they just called it a conspiracy. This is a change from common law. 


2.         D, a landlord, agrees with P, who D knows is a prostitute, that P shall rent an apartment from D for $700 per month, about $200 per month more than the apartment is worth.  P’s ability to pay the rent is dependent upon her “business” success, a fact known to D.  Has D conspired with P with respect to P’s engaging in prostitution?  (One-half page)


No conspiracy.  The purpose is not to conspire. It’s to promote or facilitate the crime. You could say he thinks she can’t pay the rent and he’s surcharging her to make extra money. In Dressler, stake in the enterprise is the basis for inferring the mens rea of conspiracy. MPC doesn’t say you can’t infer purpose from circumstances, that would be silly. The problem here is not mens rea. You can infer he’s trying to promote her success since he’s got a cut in it. The problem is that there’s no agreement to engage in prostitution. That’s the lack of transparency defeats here. When you have an agreement, each knows the other’s agreeing and what they’re agreeing you. There’s no mutual transparency. Even if he knows she’s a prostitute and even she suspects he knows it, that may not be sufficiently transparent to be agreeing that’s she’s going to engage in prostitution. Essentially she’s got to know that he knows that she knows.


For conspiracies, always look to see if there’s an agreement about the crime. The agreement to pay rent doesn’t get you to an agreement about the crime.


Questions 3, 4, & 5 deal with attempts. With respect to incomplete attempts, you’ll have the same questions arise in respect to other inchoate crimes (e.g. solicitation, conspiracy). Where the inchoate crimes takes place before the final consummated crime – the crime they’re conspiring to commit.                                                                                      


3.         A and B agree to try to sell some bottles of aspirin.  Unbeknownst to them, some of the bottles are mislabeled.  Selling mislabeled drugs is a strict liability offense.  Are A and B guilty of conspiring to commit this offense?  What if their purpose is to sell “properly labeled aspirin,” which they believe these bottle are?  (One-half page)


Said w/respects to incomplete attempts that you can have an incomplete attempt to complete this. What about conspiracy? What’s the actus reus of the crime. Selling drugs that turn out to be mislabeled. Do they have the culpability otherwise required? Yes,

Common law has problems with S/L elements in crimes dedicated to conspiracy.They thought there was something fishy about conspiring to commit a crime with a S/L element if you haven’t committed it yet.

Dressler talks about US v. Feola  [conspiracy to commit assault of a federal officer was a S/L element. Feola had no idea he was an officer] (Hand) and court held you can be guilty of conspiring to commit a crime that had a S/L element of which you were unaware. He had no purpose/knowlegde  to have that element. 

MPC are happy to allow the SL elements to make you guilty of attempts. When if came to conspiracy, they were conflicted even though they had no reason to be more or less conflicted about conspiracy than about attempt. MPC doesn’t take a position on this kind of issue. If you follow what the MPC does with attempts, A & B are guilty of conspiring to sell mislabeled drugs b/c they would be guilty of attempt. MPC is aware of Feola case is seems troubled by it. They didn’t take a different position. They didn’t case you needed more culpability for conspiracy than you needed for the completed crime. They didn’t take the position that they took with attempts that all you need is the same. They punted. [HAHAHA] MPC just didn’t follow through.


Here’s what you’re supposed to do in this situation on an exam:

If they were to be consistent with what MPC did with attempts, they would find A & B guilty of conspiracy of sell mislabeled drugs.


What if their purpose is to sell “properly labeled aspirin,” which they believe these bottle are?

What kind of purpose is the purpose to sell property labeled aspirin? Conditional purpose. Negates the criminality of the purpose MPC 3.02(6).


If A & B is to sell properly labeled aspirin, so long as it’s properly labeled. They have not conspired. With S/L, the mens rea doesn’t matter. They mens rea otherwise required for this crime b/c it’s nothing. Do we have the purpose of promote of facilitate the crime: the purpose is to sell properly labeled aspirin, which they mistakenly believe the aspirin on the shelf was. The answer is we’re not sure.


Like Adam and Scarlett. One of the problems in this whole area is that the person holds two different purposes:

1) Criminal: The purpose to sell those aspirin that are mislabeled is the prupose to commit the actus reus of the crime.

2) Not: The purpose to sell properly labeled aspirin is not a crim. Purpose. The condition that’s it properly labeled negates the criminality of the purpose.

When you could hold both of those purposes simultaneously, b/c you made a mistaken factual premise, so that the syllogism is based on these two premises:

Non-criminal: “I intend to sell properly labeled aspirin”

Criminal: “Those are properly labeled, therefore I intend to sell those.”

Question is how to get them both? When you have a factual mistake. Like Adam and Scarlett. The reason the law is so ambivalent is b/c you can have both purposes simultaneously.


Anytime you have a mistake of fact you can hold simultaneous inconsistent purposes. Structurally similar to incomplete attempts where there’s a S/L element in the completed crimes. Also like solicitation where there’s a S/L element in the completed crimes. There’s always a possibility for renunciation. The problem is we don’t know.


4.         A and B agree that A will seduce V tonight.  Unbeknownst to them, V is under 16.  The crime of statutory rape treats the victim’s age as a strict liability element.  Have A and B conspired to commit statutory rape?  What if their purpose is “sex with an over 16 girl,” which they believe V is?  (One-half page)


See 3.

Assume we’re dealing with common law. Both A & B need to guilty. Look and see each person’s intention toward the girl are. If both have the mens rea we have conspiracy. Under the MPC, even if one fails, the other can succeed.


5.         A and B agree to go riding in B’s car, which, unbeknownst to them, has defective brakes.  Driving with defective brakes is the crime of “negligent operation of a motor vehicle.”  Are A and B guilty of conspiracy with respect to that crime?  What if their purpose is “driving a safe car,” which they believe B’s car is?  (One-half page)       


See 3.

“negligent operation of a motor vehicle.” – Normally S/L. Sometimes you’ll see S/L crimes where the conduct will have a S/L conduct and A & B will be described as “negligent in doing so”. But, if all you have to prove is they’re engaged in a certain kind of conduct, then it’s not really a crime of negligence, it’s just a S/L crime just named something it. It doesn’t require that you acted unreasonably.



6.         A and B agree to drive B’s car at 90 mph, a speed that they know is reckless with respect to killing or injuring someone.  If they were to drive that speed and kill someone, they would be guilty of voluntary manslaughter or perhaps even murder.  Are they guilty of conspiracy to commit those crimes?  of conspiring to commit the crime of “reckless operation of a motor vehicle”?  (One-half page)


No, you can’t conspire to bring about a reckless result. Like solicitation or attempt.

What about conspiring to commit the reckless operation of a motor vehicle? You can imagine a situation where the fact you conspired to drive 90 mph is not a conspiracy if you’re conspiring to test drive an automobile in a test zone. That wouldn’t be reckless in respect to endangering other people. If you’re conspiring to drive 90 mpg down broadway, then imagine they’re conspiring to be reckless.



7.         P, an undercover police agent, “agreed” with D that D should enter V’s store with P’s help and steal some merchandise.  P intended for D to enter the store and bring out some merchandise, at which point P planned to arrest D and return the merchandise to V.  Burglary is defined as “unlawful entry with the intent to commit, among other things, larceny.”  Larceny requires an intent “permanently to deprive the rightful owner of possession.”  Is P guilty of conspiracy to commit burglary with D?  conspiracy to commit unlawful entry?  Is D guilty of these conspiracies?  (One-half page)


Like solicitation problem.

Is P guilty of conspiracy to commit burglary with D?

P has the purpose of promoting or facilitating the actus reus by D. But he doesn’t have the mens rea otherwise required. He doesn’t have the larceny attempt.  If P had entered V’s store, he wouldn’t be guilty of burglary b/c he didn’t have the larcenous intent.

Is D guilty of conspiracy to commit burglary?

P is not guilty, then under common law, D can’t be guilty. Under MPC, P can be guilty of conspiring with D even though D isn’t guilty of conspiring with P.

Is D guilty of conspiracy to commit unlawful entry?

We don’t know enough it P got permission from the store. Technically, if unlawful entry is a separate crime apart from burglary, then on trespass P could be guilty of conspiring b/c whether his intention, he had the purpose that D go onto the property. You don’t need any other mens rea required for trespass.


As long as P has gotten permission from V so that P would not be guilty of trespass or conspiracy to commit unlawful entry. 


8.         Thelma and Louise buy a lottery ticket.  Their odds of winning are one in a million.  They agree that if they win, they will bump off their husbands and live as high-rolling swingers.  Have they conspired to commit murder?  (One-half page)                   


Guilty b/c conditional purpose is still a purpose. The condition does not negative the harm. No matter how remote the condition is, it does not matter.


Problem Set 21


Required Readings:


                Dressler, Ch. 29 (pp. 478-end); MPC §§ 1.03, 5.04



1.                   Big Louie has agreed with Colombian Carlos that the latter will send cocaine from Colombia to the U.S. by air, a violation of federal law.  Fred and John agree with Big Louie to unload the cocaine at an airfield in Florida and put it in a warehouse, a violation of Florida law.  Tex and Nevada each agree with Big Louie to take the cocaine from Fred and John, with Tex to distribute his share in Houston, Nevada to distribute his share in Las Vegas, violations of Texas and Nevada laws.  Hank agrees to buy the cocaine from Tex to resell on the streets of Houston.  Slim agrees to buy from Nevada to resell on the streets of Las Vegas.  How many conspiracies are there in this case?  Suppose Big Louie and Carlos have also agreed to bribe customs officials, and Fred and John are aware of this?  (One page)

a.       This comes up in the CL of conspiracy, which is quite a mess.

b.       Chain conspiracy:

                                                               i.      Conspirators: C1 – C2 – C3 (You make them into ONE conspiracy.)

c.        Wheel Conspiracy:

                                                               i.      C is at the hub and we can imagine the hub conspirator is the hub of several chain conspiracies. So we could imagine a drug distribution system with C in the middle with several chains connecting all involving the common person C.

d.       What makes the Wheel conspiracy into a chain conspiracy is linkage. Each person could think that this is all part of other chains. Even though these people don’t know each other, they all understand that they are part of this kind of operation.

e.        The MPC doesn’t really adopt these sorts of chains and wheel concepts. It does have this notion of scope of conspiratorial relationship.

f.        Why would you want to make 1 conspiracy out of all of this? You could convict the main C hub. Why would a prosecutor want to convert these multiple conspiracies into 1 conspiracy? It would seem counterintuitive because you want more crimes to charge right? But, there are several reasons:

                                                               i.      Venue – where you can prosecute things. The bigger the conspiracy, the more choice you have for where you can bring it. You could bring this prosecution in several different states and you could bring all of the conspirators into that court. Whereas if you broke it down into component conspiracies, you could only bring the charge in the location it took place.

                                                              ii.      Hearsay – once you make a prima facie case that various people are involved in a single conspiracy, you can use out of court statements about any of them about others in the conspiracy. You can introduce that in evidence. I heard john say that bill was dealing in dope. That’s hearsay. The fact that you heard John say that Bill was delaing dope. That’s not admissible. But, if you bring it into 1 conpsiracy, anything that John says can be attributed to Bill and anything that Bill says can be attributed to John. This is an exception to the hearsay rule. One person speaks for everyone.

                                                            iii.      Pinkerton Doctrine – Not a doctrine under the MPC. Federal conspiracy doctrine. If you are in a conspiracy then you are an accomplice in any crime carried out in conspiracy with any person in it. For example, in a prostitution ring, I think I can charge you with 400 counts of prostitution, because you are an accomplice to every acts of prostitution, the prosecutor will say to the prostitute, “wouldn’t you like to tell me who else is in the chain of this prostitution?” It makes everyone an accomplice. It gives the prosecutor tremendous leverage.

2.                   D1 and D2 agree on Monday to rob a bank on Wednesday.  On Tuesday they agree to rob a second bank on Thursday if the haul from the first robbery is less than $50,000.  Of how many conspiracies are they guilty?  (One-quarter page)

a.       Under the MPC, it talks about a continuing conspiratorial relation. MPC §5.03(3). This looks like the definition for MPC §5.03(3). Ex: A heap of sand. If you add one grain to it, it won’t do much. But, over time it becomes another heap. We can think of organized crime gangs. There are ways in 5.03(3) in which you can convert 2 different criminal agreements with respect to 2 different crimes to 1 conspiracy. Why would you do that? Why not just say that there is 2 conspiracies? Why would we want to treat it as 1 conspiracy? Under the MPC, there is 1 conspiracy.

b.       There is this notion of a conspiring conspiratorial relationship. You can convert separate crimes into one conspiracy.

3.                   D1 and D2 agree to kill V.  V, unbeknownst to them, has already died.  Are they guilty of a conspiracy to murder?  (One-quarter page)

a.       Under the MPC, they are both guilty of conspiracy to murder because MPC does not recognize impossibility.

b.       If you conspire to murder a corpse, that’s a conspiracy to murder.

c.        When you conspire, you don’t conspire to attempt the crime, you conspire to commit the crime.

d.       The MPC treats this as a conspiracy to murder, not a conspiracy to attempt to murder.

4.                   D1 and D2 agree that they will seduce Lolita, who they believe is under 16.  (Thus, they agree to commit what they believe will be statutory rape.)  In fact, Lolita is 17.  Of what crime are they guilty?  (One-half page)

a.       If they had had sex with Lolita, they would be guilty of attempted statutory rape.

b.       They are guilty of conspiring to commit statutory rape.

c.        Structurally similar to the previous problem.

d.       It’s impossible to consummate the crime, but it’s not impossible to conspire.

5.                   X has decided to commit a bank robbery.  X asks Y to lend him Y’s car.  Y agrees to do so.  Y knows what X plans to do with the car and hopes X succeeds, but X doesn’t know that Y knows.  Is there a conspiracy under MPC § 5.03?  (One-half page)

a.       The MPC recognizes unilateral conspiracies. We have to analyze each person. What about X? X hasn’t committed conspiracy. X is not conspiring with Y. X’s agreement with Y is to get a car.

b.       What about Y? Y has the mens rea, but there’s no transparency. Usually agreements are transparent. Y has probably committed conspiracy. If you were Y’s attorney on a conspiracy charge, what would you argue? Although Y knew what the car was for, wanted the car to be used for it, and y agreed to give X the car, what didn’t Y agree to? An illegal act. If you were the prosecutor, what would you argue?

c.        One thing we haven’t studied yet, but will come up soon is when we get to complicity; a person can be guilty as an accomplice w/o the principle knowing that. So, if Y were to just leave a car for X and X doesn’t even know where it came from. If Y left it there with a purpose for X to use it for a crime, Y would be an accomplice to X, even if X doesn’t know. You could say by analogy to undisclosed A, we could have this undisclosed conspiracy. An agreement requires a certain transparency. There’s a harm in solidarity, feeling that there are other people working with you. X won’t feel any solidarity with Y, because X doesn’t know Y is willingly helping.

d.       What about under the CL? You need 2 or more. There are no unilateral conspiracies. Under the MPC, you can have unilateral conspiracies. The problem here is that it’s not clear that Y is conspiring with X.

6.                   Same hypothetical as #5, except that X is Y’s crime boss, X tells Y why he wants the car, and Y complies because he wants to please X (but is indifferent to whether X in fact commits the crime).  Is there a conspiracy under MPC § 5.03?  (One-quarter page)

a.       Let’s discuss X. It’s clear that there is a transparency. If Y is conspiring with X, then X is surely conspiring with Y. X has the mens rea. If you were X’s lawyer, what would you argue might be missing here? It’s only an agreement to deliver a car.  Notice the language of 5.03(1)(b). Is X agreeing with Y to commit the crime? X has the purpose to commit the crime, but he has an agreement with Y with respect to the car. There’s a problem in getting X here, beacaue while he has the purpose, his agreement is an agreement that Y should aid him, as opposed to an agreement to aid him in committing the crime.

b.       Let’s discuss Y. He has the actus reus. The problem with Y is the mens rea because Y’s purpose is to the favor (give the car), but he doesn’t have the purpose that the crime occur. You might be tempted to say its his purpose to facilitate the crime, right? If you read purpose to facilitate that way, it would make every knowing …. There is a reason why the MPC would not want to do that. One thing that we know is that the MPC did not want to punish merchants for example, who would sell something and would be aware that the person buying it would use it for a criminal purpose. If you read purpose to facilitate widely, to get Y here, it would get people who give any kind of aid, knowing that the aid is going to be used criminally and the MPC explicitly rejected that. The MPC explicitly rejected the notion that if you know your aid is going to use it for a crime, you’re an accomplice. Rather they read it as it is your conscious object htat this facilitate the crime. Some states have a special statute that get at people who know they are helping a criminal enterprise, but don’t have a purpose. The MPC rejected that. When you read “purpose to facilitate” you have to read that as having the conscious desire that what you are doing facilitate the crime as opposed to merely knowing that that’s where it is meant to go and doing it on purpose. Doing it on purpose is not enough here. So, Y he’s giving the aid on purpose, but he’s not doing it with the purpose to facilitate the crime. It’s a very high level mens rea requirement.

7.                   D1 and D2 agree that D2 will have intercourse with V, who they know is under 16.  D2 also knows, but D1 does not, that V is D2’s daughter.  Has either D1 or D2 conspired to commit incest, a crime that requires a mens rea of recklessness regarding relationship? (One-quarter page)                             

a.       They both have the purpose to promote the actus reus of incest because the actus reus of statutory rape is the same as incest. It’s intercourse b/w D2 and V. But, while D2 has the culpability otherwise required for incest, D1 does not have the culpability otherwise required for incest.

b.       How can you argue D1 has the culpability otherwise required? Remember recklessness is taking any unjustifiable risk. There is some risk, that V is D2’s daughter. So, there’s a risk, however small it is, if D1 is aware of that risk, then does D1 have a justification for taking that risk. D1 is conspiring to commit statutory rape, so how could it be justified? (That is the position you should get to.) If you commit a crime, and you know you are committing a crime, and you think about risks of other things that might occur, you must be reckless to those, because you have no justification for imposing those risks. Ex: If you are J walking and you accidentally kill someone. If you J walk and know there’s a slight chance to kill them, then are you being reckless? Technically yes. Whenever you peg the culpability of a certain crime, that culpability should reflect the primary harm, but also the other risks that could happen, so that the culpability level for stautotry rape, ought to take into account the other kinds of harms that might occur. Such as, the risk of incest. That way, although D1 is technically conspiring to commit incest, he wouldn’t be any more culpable than anyone who was going to commit statutory rape. He didn’t have any recklessness beyond what someone else who commits statutory rape.

c.        Technically D1 would be reckless. A well designed system of punishment would take into account whatever culpability D1 had to statutory rape… We’re not into how much punishment they should get. He is guilty of conspiring to commit incest, but in a well designed system, he wouldn’t be any more culpable than anyone who was going to commit statutory rape. He is an ordinary statutory rape conspirator. 

8.                   D1 and D2 agree to kill V.  D2 is legally insane.  Is D1 guilty of conspiracy to murder?  (One-quarter page)

a.       Under the MPC, you can have a unilateral conspiracy, so D1 is guilty.

b.       Under common law, no. Neither is guilty.

c.        Suppose that there is a flood. D2 doesn’t know about the flood. D1 knows about the flood. D1 and D2 agree that D2 should turn the valve that floods V’s farm. What result? D2 would be guilty of conspiracy and not D1. D1 has a defense that D2 lacks. They both conspired to commit the crime of flooding V’s farm, but D1 has a defense and D2 does not.  D1 would not be guilty of conspiracy to commit a crime, D2 would be guilty. That would be the same if D1 were insane. There would be a conspiracy, by both of them, but one would have a defense that the other would not. Under the MPC, the party with a defense has a defense. If someone threatened D1 with death unless D1 flooded the farm, D1 might have the defense of duress, D2 wouldn’t. The important thing here is that both parties might be conspiring, but one might get a defense while the other won’t. 

9.                   D1 and D2 agree to rob D1’s employer.  D1 then has a change of heart and tells D2.  D2 says he’ll do it alone.  D1 calls the police, but the police arrive too late, and D2 succeeds.  Is D1 guilty of conspiracy to rob his employer? 

a.       2 possible outcomes:

                                                               i.      1st Reading (Interpretation): He was guilty because he did not thwart. He did not thwart the success of the target crime. MPC §5.03(6). There is the possibility of renouncing because the crime will be committed in the future. You can try to take it back, you can rewrite history. You were possibly guilty from T1 to T2, but you aren’t guilty if you do something about it.  DO YOU HAVE TO THWART THE TARGET CRIME TO GET THE BENEFIT OF 5.03(6)?

                                                              ii.      2nd Reading (Interpretation):If you were trying to argue on behalf of D1, what would you argue? You would look at the language differently. You would interpret “thwarts the success” as thwarting the conspiracy, not the target crime.  DO YOU HAVE TO ELIMINATE THE AGREEMENT TO GET THE BENEFIT OF 5.03(6)?

b.       If you look under 5.03(7)(c). This looks like you can abandon, by just breaking off the agreement. What is this section about? Statute of Limitations. This tells you when the statute of limitations begins to run. So, you are in a conspiracy and as long as you are in the conspiracy, the crime is on going. Once you abandon it under 5.03(7)(c), this tells you when the statute of limitations begins to run. Why does this section count in favor of the 1st reading of 5.03(6)? If merely informing D1 that you were out terminated the conspiracy and renounced it, then there would be no statute of limitations. The crime no longer exists. There would be no charges to bring in that interpretation. You have to do something more to renounce the crime, namely thwart the success of the target crime. 5.03(7)(c) tells you when the statute of limitations on a crime (still in existence), one way the SofL (statute of limitations) begins to run is if you tell your fellow conspirators you are out. That implies that it doesn’t eliminate or renounce the crime. You have to do something more than merely tell your conspirators that you are out.

c.        5.03(7)(c) doesn’t mean you are not guilty if you renounce your conspiracy. It means that the SofL starts to run after you make your renouncement. So, prosecutor can’t come 7 years later and prosecute you after you renounce.

What if D2 had robbed someone else instead, since D1’s help was essential in robbing D1’s employer?  (One-half page)

d.       D1 would not be guilty of conspiracy here. If he gets D2 to commit some other crime, he’s thwarted the one he’s originally agreed to.

10.                State X proscribes the sale of narcotics, but not the purchase of narcotics.  D1 and D2 agree that D1 will sell D2 narcotics.  Is D2 guilty of conspiracy to sell narcotics?  Is D1?  (One-quarter page)

a.       MPC §5.04(2). It says if you wouldn’t punish one party to the conspiracy to the completed crime, you can punish that party for conspiring, even if they meet the criteria for conspiracy.

b.       If the target crime were to occur, D2 would not be guilty. What 5.04(2) does is if you wouldn’t be guilty of the target crime, then you are not guilty of conspiring. After all, when you think of these transactional crimes (selling for example), if the legislature wants to punish just 1 part of the crime, it would defeat the legislative purpose to go in the back door and make the buyer guilty of conspiracy. In every case where there is a sale, the buyer would have purchased. But, legislative purposely made the purchaser exempt.

c.        The seller is guilty of conspiring to sell. D1 is guilty of conspiring to sell even if D2 is not guilty.

d.       (Wharton’s rule is the CL version – it’s designed to prevent punishing people via conspiracy law.)


Problem Set 22

Complicity MPC §2.06 Complicity


         Complicity is not a crime. One isn't charged with complicity (don't write this on exam!), one is complicit in some other crime.                                                                                                                                                                        

         NOTE: No principal = no accomplice                                                                                                                     

         Common Law: A person is not an accomplice unless her conduct in fact assists in commission of the crime.         BLO pg. 283


               Change from common law - Under §2.06 (3)(a)(ii) you can be complicit from attempting to aid.                        

        # 1: D, a jazz critic for a newspaper, who wants to hear P, a famous foreign jazz musician, play, buys a ticket to P's concert although D knows P has been admitted                                                                                                                   

              to the country on the condition that he not perform at any concerts. Is D guilty of aiding P's violation?                     


              D has the right mens rea: "purpose of facilitating or promoting the commission of the offense."                        

                     If D's purpose is to promote or facilitate the actus reus of the crime and he does something that would promote or facilitate it in some way, then you have all the                                                                                                     

                          elements of complicity, which means that if P is guilty, then D is guilty.                                                      

              BUT, what about the actus reus?                                                                                                                      

                     Court wrestles with this question: Is buying a ticket sufficient encouragement or assistance to account as the actus reus of compicity?                                                                                                                                                

                     Yes, although it wasn't that any particular ticket was necessary. Problem is that every member of the audience could say the same thing: he would have played w/o                                                                                              

                          me buying a ticket.                                                                                                                                   

                     Court did not want to create this sort of escape hatch                                                                                

                    Also, refer to §2.06 (3)(a) - Refer above                                                                                                     

                           Can be complicit just by attempting to aid.                                                                                          

              Drafting error with MPC - §2.06 (2) (a)            MPC §2.06 (2) (a)

                     "acting with the kind of culpability that is sufficient for the commission of the offense..."                       

                     Meant to only modify what comes right after it, and not (b) and (c).                                                             

                     BUT, it should be read as modifying every part of Subsection (2) including 2 (c).                                         

                            So, to be an accomplice, you must act with the purpose of promoting or facilitating the commission of the offense AND the kind of culpability otherwise                                                                                                                                                                                   

                                   required for the commission of the crime.                                                                                                                                          

              Also, look at §2.06 (6) (b)            MPC §2.06 (6) (b)

                     Person is not an accomplice if "The offense is so defined that his conduct is inevitably incident to its commission of the offense."                                                                                                                                               

                     We would need to know about the statute the jazz musician was violating. If the offense were "performing before a ticket purchasing audience," then we would                                                                                                             

                          argue on behalf of D that by implication, that legislature already knows there's a paid audience. You can't have a concert without an audience.                                                                                                                                     

        # 2: D sees P about to attack V. D wants to encourage P by his presence so he stands near altercation.                  

               Is D guilty of being an accomplice in P's assault?                                                                                            

               Any kind of encouraging act could be sufficient for complicity. The aid you provide doesn't have to be much.

        # 3: D knows that P is a prostitute. D rent P a room D's apt house. Is D an accomplice in P's crime of prostitution? 


               MPC wrestled with question of merely a knowing aid: giving aid not with the purpose of facilitating but just the knowledge.  

               MPC opted to protect merchants by requiring purpose. Knowledge wasn't enough.                                      

               We don't want merchants to not sell to certain people b/c they assume something...what if they're wrong?         

        # 4: Soldier gives Godfather a gun which he knows G intends to kill Vinnie with. He only complies because he wants to please G.                                                                                                                                                                        

               Giving gun meets the aid requirement                                                                                                              

              Mens Rea?                                                                                                                                                     

                     Problem here and problem many prosecutors face: Showing that you gave the aide with the purpose of promoting or facilitating the crime.                                                                                                                                    

                     Juries often cheat b/c their instincts tell them this looks bad even though the facts of the case don't seem to support that there was purpose.                                                                                                                                       

              Look @ §5.01 (3) - Refer above                                                                                                                       

                     Soldier is still guilty of an attempt. Not guilty of an attempt by being complicit (If G does nothing, there's no principal)    

                     He's guilty through §5.01 (3). You're are guilty of an attempt by doing that which would have made you an accomplice.    

                           Under §5.01 (3) - Attempt occurs as soon as you do the act that would make you guilty as an accomplice if the crime had been committed or attempted.                        §5.01 (3)

                           Dressler Wrong: He suggests that you are only guilty under §5.01 (3) if you do something that consists of aiding but not if you solicit. Alexander: if you do anything                                                                                                

                                that makes you guilty under §2.06 (3) it makes you guilty under §5.01 (3).                                              

              Renunciation under §5.01 (3)                                                                                                                            

                     The way you terminate an attempt under §5.01 (3) is by terminating the thing that made you liable (take back the aid, etc.) As soon as you renounce and                   ASK

                          become NOT guilty of solicitation or complicity, then you become not guilty under §5.01 (3) for the attempt.                          

        # 5: Solider wants to help out Godfather, but doesn't know what the plan is and is not told. Plan could anything.      

               Solider is potentially guilty of complicity of whatever kind of crime is committed.                                              

              What if not crime is committed?                                                                                                                      

                     Refer to 5.01 (3) - He could be guilty of whatever crime he THOUGHT they were going to commit.                

                     If he thinks they're going to kill, but in fact, they only over park, then he'd be an accomplice of the parking, but guilty of attempted homicide too.                                                                                                                                  

                     5.01 (3) is very important. It's the catch all.                                                                                                 

        # 6: D, wearing protective armor and standing in front of V, moves out of the way when P hurls a missile and V is killed. Of what is D guilty?                                                                                                                                                   

               If he moves just to avoid getting hit himself, even though he knows it's going to hit V, then he doesn't have the purpose (mens rea) of promoting or facilitating the                                                                                                               

                    crime of P assaulting V.                                                                                                                                  

               Even w/ bad purpose (mens rea) what you've done shouldn't count as aid that makes you an accomplice. Otherwise it'd be saying you had an affirmative duty to                                                                                                         

                    stand there and shield.                                                                                                                                    

               You aren't an accomplice if you merely omit.                                                                                                

        # 7: D leaves gasoline for P with the purpose of helping him burn down a building for the insurance. P doesn't see it, buys his own, burns down building and                                                                                                                            

              inadvertently kills homeless man in building. What is D guilty of?                                                                            

               Common Law: Aid has to be used to commit the crime. D's aid wasn't used, so he's not guilty.                         


                     D is guilty b/c as long as he acts w// the purpose of promoting or facilitating the commission of the offense, under 2.06 (3) (a) (ii) you only need to attempt to aid.                                                                                              

                    Under 2.06 (4)                  MPC §2.06 (4) Accomplice

                                                                                                                                                                                           with regards to result

                           If you have the culpability for arson and the arson results in death, then you have the culpability for homicide. Thus, D is guilty of being an accomplice of homicide.                                                                                           

                           This is kind of like strict liability regarding the resulted crime                                                                 

                                    Alexander: Is 2.06 (4) necessary? Drafters could have left it out b/c if you stuck in "acting w/ the kind of culpability..." you get the same result b/c you have the                                                                                                                                                      

culpability required.


Problem Set 23


Required Readings:


Dressler, Ch. 30 (to page 518); MPC §§ 2.06; 5.01(3)



1.                   D, who wants V dead, tells P that V has vowed to kill P as soon as he finds P.  P believes this, later encounters V, and shoots V.  P has a legitimate plea of self-defense.  What, if anything, should happen to D? (One-half page)


a.     A person is guilty of an offense that she did not personally commit if, acting with the requisite mens rea, she “causes an innocent or irresponsible person” to commit the crime. MPC §2.06(2)(a).  This is equivalent to the common law innocent-instrumentality rule. In this case, D is guilty of the murder because D acted with the mens rea, caused P to kill V.

b.    To be an accomplice in the commission of an offense, the person must: (a) solicit the offense; (b) aid, agree to aid, or attempt to aid in its commission; or (c) fail to make a proper effort to prevent commission of the offense (assuming that she has a legal duty to act). MPC §2.06(3)(a)(i)-(iii). D has solicited the offense under MPC §2.06(3)(a) because he encouraged P to engage in conduct constituting a felony. 


                                          i.    What do we charge D with here and why? Is P guilty of anything? No. P hasn’t committed a crime. How should we get D here? 2.06(2)(a) classic innocent instrumentality case. Giving the bomb to the mail man. The mail man carries out the conduct where it goes off and injures and kills the V. But, the mailman is innocent. This is similar. P is an innocent instrumentatliy. This is a straight forward innocent instrumentality case. No different from mail bomber using the mailman.

                                         ii.    What if P were negligent in believing D? What would P be guilty of if he’s negligent in believing D? Negligent homicide. What would D be guilty of? Purposeful homicide. The innocent instrumentality and complicity doctrines merge. P is to the extent that P is less culpable than D (merely negligent as opposed to purposeful), P is an innconet instrumentality to D, but P is guilty of the crime of negligent homicide (he has the actus reus of homicide, of which he’s negligent.) But, D is an accomplice in the actus reus and he ahs a higher degree of culpability. There are a # of cases where you are an accomple and have a higher level of culpability than the principle in the 1st degree. Even though P is no longer innocentn in the strict sense, D can be his accomplice at a higher level of culpability. P can be negligent and D can be acting purposefully. You only have to be an accomplice in the actus reus. You don’t have to be an accomplice in the level of culpability, only in the actus reus. That means you could take the orginail problem where P is innocent, and say that the principle has NO culpability and the accomplice has a high degree of culpability. What’s important is that D aids or encourages the actus reus and he has the kind of culpability otherwise charged with.

                                        iii.    Suppose that it turns out that although D doesn’t know this, P is really going to be attacked by V. So, he has a case of justified self-defense. What happens to D? (This retraces some earlier stuff we learned.) (Suppose that D encourage P to turn the valve to save the town on the river to flood V’s farm. D doesn’t know, but there really is a flood. So, P really is saving the town. What do we say about D here?) 1 view point: Since there is no crime here, there’s nothing that D can be an accomplice to. 2nd view point: Unknowingly justified actor. If D doesn’t know about the justification, you don’t get the defense. Under the MPC, D would be guilty of flooding V’s farm (no benefit of lesser evils defense, because he didn’t believe it). P would get the defense because he thought he was saving the farm. In this case, P gets the defense. D who doesn’t believe it, doesn’t get the benefit. (You might’ve thought this was an attempt.) You might look at the unjustified actor as someone who failed at committing the crime. If you don’t believe the justification, you don’t get the defense.

                                        iv.    Notice that for innocent instrumentality liability, you don’t have to act w/ the purpose that the person carry out the actus reus. You can be guilty through Inn. Inst. (II) by being for example, negligent. Suppose D really believes that V is going to attack P. So, D tells P that. Suppose D is negligent in believing it.  It may not be his purpose that P do anything, but he may be negligent in telling P this, w/o having checked the facts out.  D is guilty of negligent homicide. The bases of complicity is that you encourage or aid the crime wthe the prupsoe of having the AR commited. II does not require that you have the prupsoe tha the AR be committed. It is sufficient that you cause the ar to be commited. The bases of II is causal. Frequently, they are the same thing, but they can come apart, if I negligentlty tell someone that X is out to kill you and they commit a justifiable homicide, you can be guilty of negligently cuasing them to engage in homicide. II is CAUSAL, causing someone to engage in the AR. Complicity requires encouraging them to engage in the AR. Tehre will be substantial overlapping.

2.                   D, intending to get P arrested, urges P to purchase drugs.  P does so and is arrested after D tips off the police.  Is D an accomplice?  Does it matter when D tipped off the police?  (One-half page)

a.     If D tipped off the police of his plans before he urged P to purchase the drugs, then D is probably not guilty as an accomplice because he did not have the requisite mens rea. If D tipped off the police much later, then D might be guilty as an accomplice. To be an accomplice, the person must act “with the purpose of promoting or facilitating the commission of the offense.” MPC §2.06(3).


                                          i.    Ordinarily if you encourage someone to commit a crime, that will make you an accomplice if it occurs. D once he urges P to purchase the drugs, he’s on the hook for the moment for complicity if that’s what occurs, but can he get off the hook? MPC § 2.06(6)(c) and (i) or (ii). What do you suppose terminates his complicity means in C? If you think about the section about how you renounce for attempts, there is the complete and voluntary abandonment of the attempt (change of heart notion). You have to have a change of heart (mens rea) AND do something further (actus reus of renouncing). One way is to take back what you gave so it’s as if you never aided in the 1st place. The other way is to give timely warning to law enforcement.That’s hw you get yourself off the hook for complicity. At the same time you get yourself off for attempt under 5.01(3). Notice you can be an accomplice under the MPC, by merely attempting to aid. Suppose you leave a gun for someone with the purpose that they commit a crime, but they don’t see the gun and now you have a change of heart. What would you take back? You never actually gave any aid to start with, you tried, but it didn’t work. In that case, it’s not clear whether by merely having a change of heart, you are out, or if you have to do something like call the cops.

                                         ii.    Stings. There are certain kinds of cirems like burglary which are inchoate crimes in themselves (no broken bones or destroyed property). Someone can commit ac rime merely by entering a place. Cops can enter before anyone gets hurt. OTHER kinds of crimes, the cops can’t wait till the crime is committed and then move in, like murder. There are crimes that seem to be completed crime. The moment the drugs are sold, there is a completed crime. It’s a completed crime. There’s something about the sale of contraband, that althought the crime is completed at the moment of sale, there is no social harm that cocurs unless the time is allowed to run longer, which is why cops are not charged as complicit in these various types of sting operations. No matter what, you have to notify the police before the crime.

                                        iii.    There also might be a CONSPIRACY b/w P and D here. Frequently in a face to face solicitation, you can infer if the person being solicited… So, you might compare the termination of complicity with the termination of conspiracy.  


3.                   D urges P to kill V.  P tries to kill V but fails.  Of what is D guilty?  What if P does nothing?  (One-half page)

a.     If P tries but fails to kill V, then D is guilty of attempted murder. MPC §5.01(3) says “a person who engages in conduct designed to aid another to commit a crime which would establish his complicity under Section 2.06  if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.” (This is different from common law.)

b.    If P did not even try, then D is not guilty as an accomplice. According to MPC §2.06(7), if there has been no offense, then one is not an accomplice “in the commission of the offense.” Therefore, although an accomplice may properly be convicted if the perpetrator is acquitted on the ground of an excuse defense, an accomplice should not be convicted if there was no offense, i.e., the principal party was acquitted on the ground of a justification defense.


                                          i.    D is guilty of attempted murder.

                                         ii.    What if P does nothing? What is D guilty of then? Under 5.01(3), he is still guilty of attempted murder.


4.                   P and D agree that P will rob bank X.  D does nothing else.  P decides to rob bank Y, which is more heavily guarded.  In the course of the robbery he kills a bank guard who tries to stop him, and in driving away at high speed he accidentally kills a pedestrian.  P is charged with robbery, murder, and negligent homicide.  Is D an accomplice in any of these crimes?  Under the MPC?  In a jurisdiction that follows the Pinkerton rule regarding conspiracy and complicity (see previous chapter)? (One page)

a.     Under the MPC, P should only be guilty of accomplice liability to rob bank X. D did not rob bank X as planned, but instead changed the plan and robbed bank Y. P may have never agreed to rob bank Y because of the heavy security. Therefore, P should not be guilty as an accomplice to rob bank Y, an accomplice to murder, and an accomplice to negligent homicide. 

b.    Under the Pinkerton rule, D is an accomplice to every crime that P is charged with. So, D should be charged with robbery, murder, and negligent homicide just as P is charged to those crimes. At common law, a person may be held accountable for the actions of others either as an accomplice, or as a conspirator. The Pinkerton doctrine provides that a co-conspirator is responsible for any crime committed by any other member of the conspiracy, whether or not he assisted, if the offense was an object of the conspiracy or a reasonably foreseeable consequence thereof.


                                          i.    Under the MPC, how would you get D as an accomplice under the MPC? Where you have a conspiracy where you are not face to face, merely being part of the conpsipracy, makes you an accomplice under 2.06(3). So, if you infer here that this is a face to face agreement, hten you can infer encouragement, solicitation, and so you could get potential complicity out of a face to face agreement.

                                         ii.    What’s the significance of the change of venue of the robbery? How should we think about that under the MPC? You have the purpose that they rob bank X, but they go out and rob bank Y. Any change in detail going to get you out of complicity? If you say let’s rob the bank at 3:00 and they show up at 3:15, then what? This is another problem with all these fowrad oriented crimes (criems that take place b4 the main event, like complicity). How particular do you have to imagine the crime being? On the one hand, a member of a criminalization might be willing to cocmmit any crime without being very specific. The other side is the person who is willing to aid a particular crime. Some differences are immaterial (showing up 15 minutes late), some are material (bank is more heavily guarded). Nothing in complicity law that tells us much about how to draw those distinctions, you have to have the purpose to promote or facilitate the crime, but there is little to tell you how you define the crime here.  Most criminal purposes are about committing any murder. What is whether bank Y (the robbed bank) is w/in the scope of this conspiracy, or whether it’s outside of it, and there is no clear line. Surely, the more that bank x and bank y differ, the more likely it is that P is no longer acting on the original conspiracy, but is acting on his own.

                                        iii.    Is D complicit of the robbery of bank Y?

                                        iv.    What about the murder? We have nothing to suggest that D’s purpose is that P commit homicide. Even if it’s quite foreseeable that a murder would happen in a bank robbery, unless it was D’s purpose, D would not be on the hook for the murder. Most states treat killings in the course of certain felonies (like robbery) as so called felony murder. Suppose the state had a felony murder statute (killings in the case of a bank robbery are murders), so P would be charged with murder and D would also be guilty of felony murder.

                                         v.    If the state had a felony murder statute, then if D was P’s accomplice in the robbery, then he would be his accomplice in the murder.

                                        vi.    What about the negligent homicide issue? This is going to be P’s crime, not D’s, unless D said to P “I want you to drive really fast after robbing the bank no matter what.”

                                       vii.    What about the jdx that follows the Pinkerton rule? It’s a very loose rule. The mere being in a conspiracy makes you an accopmlce with any crime that is in the scope of the conspiracy. The conscipracy could be for bank robbery, but killing a guard would be in the scope of that, driivn gaway in high speeds could be in the scope of htat. The Pinkerton rule is VERY very prosecution friendly. Unlikle th MPC which requires that you actually have aided the specific crime, the P rule allows you to get cosnpriators who are distant (those that didn’t encourage the crime, but are just in the conspiracy.)

5.                   D helps P start his car, which neither knows has defective brakes.  Driving with defective brakes is considered negligent driving.  Is D an accomplice?  (One-half page)


                                          i.    This is like the other inchoate crimes.

                                         ii.    This is a form of SL crime. Is D an accomplice? What would you need to know here? You have to have the purpose that the actus reus be committed. To be an accomplice here, D would not only have to have his purpose to start the car, but that P drive the car. D would be an accomplice if D wanted P to actually drive the car.


6.                   D purposely helps P seduce V, who, unbeknownst to either, is underage.  Is D an accomplice?  (One-quarter page)


                                          i.    D would have to have the purpose that P seduce V. Once he has that purpose, he has all the culpabililty required for stautotry rape as an accomplice.

7.             D purposely helps P sell some aspirin.  Neither knows that one bottle is mislabeled.  Selling mislabeled drugs is a strict liability crime.  If P is guilty of it, is D guilty as P’s accomplice? (One-quarter page)


                                          i.    This is same as #’s 5 and 6.

                                         ii.    You need to give aid or encouragement with the purpose that the actus reus be committed and that mens rea to ___ otherwise required.

8.                   D purposely helps P shoot a rifle at a shooting range by providing P with ammunition.  D is unaware, but P is not, of the fact that there are children playing in the shooting range who are in danger of being struck.  P is “recklessly endangering” in firing, and will be guilty of reckless homicide if a child is killed.  Is D an accomplice in either crime?  (One-half page)

a.     D is probably not guilty as an accomplice to P because although D gave P the ammunition, D was unaware that P would be recklessly endangering the children. Even if a child is killed, the guilt would lie entirely with P. MPC §2.06(4) says that “a person who is an accomplice in the commission of conduct that causes a criminal result, is also an accomplice in the result thereof, if she has the level of culpability regarding the result required in the definition of the offense.”


                                          i.    What is it that D lacks specifically? The culpability otherwise required. He has the purpose that P shoot. What he lacks is the kind of culpability otherwise required for reckless endagenrment. He’s not being reckless. He’s not awayre of the subjstanital nadn unjustifiable risk that children are there. He is aiding P’s shooting (actus reus) and he has the purpose, what he lacks to make him an accomplice, is the kdin of culpability otherqise required fro the crime. He is unware of the children. If he were the one shooting, eh would not be reckless. That’s the missing ingredient here. That is why P could be guilty of reckless ednagiering in shooting. D could be helping P shoot, but he lacks the culpabiblity otherewise required. D lacks the recklessness.

                                         ii.    2.06(2)(a) that phrase should be stuck up there with 2.06(2).

Problem Set 24


Required Readings: Dressler, Ch. 30 (518-end)


1.                   D, who wants V dead, tells I, who is insane, that V is a space alien who must be killed to save the world.  I kills V, pleads insanity at trial, and is acquitted on that basis.  Is D criminally liable for V’s death, and, if so, as a principal or as an accomplice?  Would the result differ if I initiated the attack on V without D’s instigation, but D then took the opportunity to assist I?  (One-half page)

a.       1st part of the question: D is the principle. I carries out the actus reus of the killing. It’s a causal theory (But for D not telling I to kill V, V would’nt have died.). I is the innocent instrumentality. This is an innocent instrumentality case. D has the kind of culpability sufficient for the offense. He causes an innocent or irresponsible person to engage in such conduct. The only way you can cause someone to do something is to give something that fits in their reason set for doing it. You can be guilty of murder through extreme recklessness. You don’t even have to have knowledge. Extreme indifference for human life can be the mens rea for murder.  When the theory is innocent instrumentality you don’t need to have the purpose for promoting or facilitating the actus reus of the offense, all you need is the culpability otherwise required (if that turns out to be recklessness – You leave your real gun lying around and your kid likes pretending to be a cowboy. Quite foreseeable that the child would use the gun and pull the trigger. The person who leaves the gun around can be guilty of reckless homicide w/o having the purpose for promoting or facilitating the offense.). The theory is that it’s not complicity. You’re not an accomplice, D is the principle. Under §2a no requirement of purpose for promoting or facilitating the offense.

b.       2nd part of the question: D is the accomplice. A person (D) can be complicit with a principle (I) who has an excuse (I has the excuse of insanity) and is unconvictable (I can be acquitted of insanity.). You don’t need for the principle to be guilty of any offense. All you need is the principle to carry out the actus reus of the crime. So, if principle is out in the woods hunting deer and he points the rifle at what he thinks is a deer and his colleague D, knows that it’s not a deer (it’s a dumb hunter dressed up as a deer), and D who wants that dumb hunter shot, helps P (he says aim a lil more to the left), in this circumstance, P who thinks he’s shooting a deer is innocent, but D would be guilty of the crime through complicity (he’s not causing it, he’s assisting a person who lacks the mens rea.). He’s assisting the person who lacks the mens rea.

2.                   Iago, who hates Othello, suggests to Othello that Desdemona has been unfaithful.  Iago hopes that Othello will become so consumed by jealousy that he will kill Desdemona and thus ruin his own life.  Othello does just that. Othello is charged with murder. He claims provocation, which – as we shall see in a future class – will reduce murder to voluntary manslaughter if the jury finds it existed.  If Othello is convicted of voluntary manslaughter on the theory that his killing was provoked, may Iago be convicted of being an accomplice to murder (not voluntary manslaughter)?  Explain how.  (One-half page)

a.       If he were charged w/ murder, he could claim as a partial defense, provocation. A person can have a homicide reduced from murder to voluntary manslaughter if he can meet the requirement of partial excuse of provocation. If successful, the defense doesn’t exonerate, it results in a reduction. Assume O thinks D is unfaithful, he would be successful in defending against a murder charge and would get the lesser charge of involuntary manslaughter. May I be convicted as an accomplice to murder (not manslaughter)? Yes. Iago can be guilty of murder, even though the principle is guilty of manslaughter. I has solicited O. This is a non-transparent solicitation, where the solicitee doesn’t know that he is being solicited. I is planning the idea. If we were willing to say that someone who tells his neighbor something over the backyard fence is solicitation, then this is certainly solicitation. I is hinting at D’s unfaithfulness. I has the purpose that O kill D. I has the purpose of facilitating or promoting the offense of murder. I has the mens rea otherwise required for murder. So, I would be guilty as an accomplice. O has a partial excuse which reduces his culpability, but that partial excuse is personal to O. I does not have the same partial excuse that O has. The accomplice can be guilty of murder even though the principle is only guilty of manslaughter.

3.                   P is shooting at V because, unbeknownst to D, V initiated and is continuing a deadly attack on P.  D hates V, thinks P is trying to murder V (rather than defend himself), and helps P by loading her gun for her.  If P kills V and successfully pleads self-defense, is D guilty of anything?  (One-half page)

a.       If you try to commit a social harm and you didn’t know about the benefits, you don’t get it. Even if the P is justified, if the accomplice is unaware of the justifying facts, then the accomplice can be guilty of the completed crime (not even the attempted crime.). P’s got a justification. We know if D, unaware of the justification, if he shot V himself, then D would be guilty of murder. It would appear that P’s turning the valve to save the town, D comes along and thinks P is just trying to flood V’s farm. P gets the benefit of lesser evils, D doesn’t get that same benefit. The only alternative would be to say D is guilty of an attempt, but not a success because he was trying to commit a social harm, but didn’t, but the MPC rejects that. If you didn’t know about the benefits, you don’t get to use them. Even if P is justified, if the accomplice is unaware of the justifying facts, than the accomplice doesn’t get the defense, he can be guilty of the completed crime (not even the attempted crime). Page 520 in Dressler seems to be saying the opposite. Suppose that P unlawfully threatens V’s life and S assists P to kill V. P is acquitted on the grounds of self-defense. Is S guilty in the homicide? Dressler says the case law is sparse and Dressler says S should be acquitted. Alexander: Dressler is wrong. The problem is that unknowingly justified actors don’t get the benefit of any justification at all. There is no reason that if it’s true in the case of the principle, it shouldn’t be true in the case of the accomplice. (Hypo: suppose P is turning the valve because he hates V. P wants to flood V’s farm. D comes along, knows about the flood, knows that the town is threatened, and helps P turn the valve. D is going to get the benefit of the defense, even though P doesn’t get the defense. A knowingly justified accomplice gets the defense, and an unknowingly justified person doesn’t get the defense. This is the same with accomplice and principles.)

4.                   Analyze the Cogan and Leak case (Dressler, pp. 521-23) in terms of the MPC.  (One-quarter page)

a.       C is the principle and is innocent of rape because he doesn’t have the mens rea. He believes L’s wife is consenting. MPC §2.06(5). C can be held accountable as an accomplice, but he could also be considered the principle. (He is innocent like a mailman who delivers the mail bomb. He doesn’t do it with the mens rea. That is the reason why C gets off here. He doesn’t have the mens rea with respect to consent.) C doesn’t have the mens rea for rape. This is a case that came down in the same year as the Morgan case (you have to be reckless with respect to consent.). C was not found to be reckless. Either theory works here. The point of MPC§2.06(5) with respect to those states, where husbands are deemed legally incapable of raping their wives, MPC§2.06(5) says yes that may be so, but if they rape their wives through some other person, whatever reason they have for exempting the husband when he’s the one committing the act doesn’t apply when it’s some 3rd party. So, you can view it as an innocent instrumentally or view it as complicity. It works either way.

b.       Why is their no culpability for C? It’s sort of like Morgan, you wonder whether C wasn’t culpable in this, but the point is that whatever the standard was, the jury didn’t find it. He doesn’t have whatever mens rea is required. The focus should be on L. L is the one of concern. Dressler says something which Alexander thinks is wrong (p.522 in the middle of the paragraph), he suggests you couldn’t impute C’s crime to L because C lacked the mens rea. You don’t need the mens rea, what you are concerned with in complicity is the actus reus of the crime. It’s the accomplice who supplies the mens rea. The principle supplies the actus reus. This applies whether we talk about innocent instrumentality or complicity. It works either way.

5.                   Analyze State v. Hayes (Dressler, pp. 523-24) in terms of the MPC.  (One-quarter page).

a.       This is the case where H is the accomplice in this famed burglary. So, H comes up to P and says let’s burglarize this store. H doesn’t know P is the relative of the store. So, P feigns agreement here, and notifies the cops. P goes into the store, brings out some goods, hands them over to H, and at that point naps H. H is charged w/ complicity in burglary. What result in Hayes under the MPC? The person going inside has no intention to deprive V of his goods. He’s only acting. What’s H guilty of under the MPC? In the actual case, not the MPC, H is acquitted of complicity in burglary. But, what about under the MPC (tricky)? P can be guilty of an attempt under §5.01(3), he solicited, he did something that would make him an accomplice if the burglary were committed. The mere fact that P goes into the store and picks up some goods, that does not count as the actus reus of burglary, because the actus reus of burglary includes the intent to do something in the future, which was lacking here. Burglary is an attempt, so it’s not in itself, socially harmful. So there was no actus reus of burglary performed. So, it was correct for the court to acquit him of complicity in burglary but he would be guilty of an attempt under §5.01(3), he did the kinds of things if a burglary were to occur. You become immediately guilty of an attempt under §5.01(3).

6.                   Analyze the Richards case (Dressler, pp. 525-26) in terms of the MPC.  (One-quarter page)

a.       Desperate housewife procured 2 men, severely beat up her husband. She solicited the crime of aggravated battery. They committed a simple battery, not an aggravated battery. What is Mrs. R guilty of? She solicits aggravated battery, but the thugs she solicits only commit simple battery. She’s an accomplice to the simple battery even though she solicited aggravated battery. Suppose she solcited aggravated battery and the thugs burn down the building where Mr. R works, would she be an accomplice to arson? No. She didn’t have the purpose. So, why is she guilty of simple battery when she didn’t solicit simple battery? It’s a lesser part of the same crime. If you solicit aggravated battery, you are at the same time soliciting simple battery. You wouldn’t be an accomplice in arson. She’s an accomplice to simple battery, because the crime she solicited is just a greater version of the same crime. She’s ALSO guilty of an attempt (aggravated) under §5.01(3) because she solicited that crime with the purpose of facilitating and promoting the crime, so she’s immediately on the hook for attempted aggravated battery. So, she is guilty of an attempt of aggravated battery, and she is complicit in the lesser battery that actually occurred. This is a case where you can be complicit in a different crime than the crime that you solicited or aided. But, it has to be a crime within what you solicited. So, if you solicited murder, and the person is only wounded, you could be complicit in the wound (battery). But, if you solicit murder, and they commit embezzlement, then you can’t be an accomplice to embezzlement (complicit to embezzlement).

b.       In a case where you solicit a crime, you are guilty of the crime of solicitation, if they agree to carry it out, you are guilty of attempt and the conspiracy. You can be guilty of all 3, but punished for 1. On an exam, where the question asks, “What crimes are so and so guilty of?” Don’t worry about the penalties. Just list the crimes. It could be the same act. You throw everything out there, and hope you can prove one of them.

c.        Alexander says The Richards case is like the Hayes case.

7.                   The legislature has made the sale, but not the purchase, of drugs a crime.  D buys drugs from P.  P is charged with selling drugs, and D is charged with complicity.  What result?  (One-quarter page)

a.       If the legislature has made ½ of the action criminal and not the other half, and MPC§2.06(6)(b) is there to prevent you from nailing the other person as an accomplice, you don’t want to nail them through the back door of complicity law. If the legislature has made the doctor performing the abortion guilty of the crime, but the legislature exempted the woman who had the abortion from criminal prosecution, it would defeat the legislature’s purpose. Whatever the leg’s reasons for making the dr but not the woman liable, you would defeat the leg’s intentions if you went through the back door of complicity. She meets the definition of an accomplice, but the leg’s designed it so she wouldn’t be an accomplice. It would defeat the legislature’s purpose.

8.                   P has engaged in acts of incest with her son, D, who is grown.  P is charged with incest.  D is charged as P’s accomplice.  What result?  (One-quarter page)

a.       What would you want to know? Does the law consider a grown child to be a victim in a case of incest? What isn’t clear is whether the incest law would treat the person of age as a victim. If the person is of age, then he’s guilty of incest. It takes two to tango, and he is tangoing. You wouldn’t need complicity. You only need complicity law if 1 of the parties is not guilty of the substantive offense. Then you have to look at 2.06(6)(a) and 2.06(6)(b). 2.06(6)(a) would exempt a minor child as a victim even if the language states that he would meet the definition of complicity.

9.                   D and P agree that P will commit armed robbery of a bank.  P commits the robbery, and in the course of it kills V, a bank guard.  P is charged with armed robbery and homicide.  Is D chargeable as an accomplice in a state that follows the Pinkerton rule?  The MPC?  (One page)

a.       D would be on the hook as an accomplice in armed robbery.

b.       The MPC doesn’t recognize the Pinkerton doctrine. Mere conspiracy is not sufficient or complicit. With complicity you have to look at §2.06 which states that in order to be guilty of complicity, you have to solicit or aid or agree or attempt to aid in the planning or commission of a crime. There is no fact here that suggests any aid or an agreement to aid or an attempt to aid, but there is something that might be considered solicitation. In a face to face conspiracy you are going to have some level of encouragement. The encouragement is important here. The Pinkerton doctrine gets its “bite” when the parties are remote. There is no one necessarily giving aid to other persons who are distant. This is where MPC and Pinkerton diverge. But in face to face, even a conspirator that does nothing else could be deemed to have encouraged the co-conspirator, b/c what' s the point
of agreeing in a face-to-face. If on exam: the important thing to know is that it's not be virtue of the conspiracy that D would be an accomplice, it'd have to be an operation of §2.06, not conspiracy. But, a face-to-face conspiracy would meet
§2.06 b/c of encouragement.

c.        If D is complicit is in the robbery, what about the homicide? If jurisdiction makes any killing in the course of the committing a robbery, into felony-murder w/o any mens rea required for the element of death (that no additional mens rea is required beyond the mens rea for the robbery) then 2.06(4) would make D complicit in the murder. If P is guilty of murder, only if P has some additional kind of culpability in respect to killing than merely having engaged in armed robbery, then what is the result for D? Suppose P would only be guilty of murder if he acted in a way that was extremely reckless in respect to killing someone. What would be
the requirement for D? 2.06(4) only kicks in if one of the elements of the homicide is the commission of the felony itself. If you have a homicide and the fact that you committed a robbery has nothing to do w/ if you were chargeable for the homicide, it can be an independent murder. (Ex. Commits robbery,  sees guy inside he doesn't like and kills him) 2.06(4) only kicks in w/ the felony the person is aiding is part of the element of the greater homicide. Can only charge P w/ the homicide if it's part of the robbery – and then the question is if D has the culpability required? What's required to get the principal? : is it a murder that'sú
chargeable entirely independently of the robbery or is the robbery one of the elements of the murder charge? If robbery is an element, and D has additional culpability required for the death, then he may be an accomplice. Same as arson ex. On exam, if felony-murder is introduced, Alexander will give us info that we need – just know §2.06(4).


10.                D agrees to lend P D’s car to commit a robbery of a bank that D has described to P.  D later has a change of heart and so informs P.  P goes ahead and robs the bank without D’s car.  Is D guilty as an accomplice under the MPC?  (One-quarter page)

a.       W/ respect to the car, he’s had a change of heart. MPC§2.06(6)(c) says terminate complicity, meaning having a change of heart (that’s the mens rea of termination, the actus reus is the alternative of one or two.) In the problem, P goes ahead w/o the car (deprived the car of its effectiveness), if you’ve given info as part of your aid, it’s hard to deprive it of its effectiveness as long as it remains true. The genie is out of the bottle here. There is no way to take it back. If the aid is consisted of info, in order to terminate, you have to go to subsection 2. You have to give timely warning or make proper effort. In a case where the aid amounts to the actus reus of complicity where the aid is something tangible that can be retrieved, then that’s a way you can deprive it of its effectiveness. If it’s something like info, it’s hard to deprive it of its effectiveness. If it’s just encouragement, how do you deprive that of effectiveness? If you are on the hook for complicity and then you have a change of heart, you have to deprive your prior encouragement of its effectiveness, how do you do that? Do you just tell the person? Look at solicitation statute §5.02(3). So if you are on the hook for complicity because you’ve solicited the crime, the way you get off the hook for complicity is the way you get off the hook for solicitation. YOU HAVE TO STOP THE CRIME. §2.06(6) says when you are on the hook for complicity by virtue of solicitation, prong #1 doesn’t apply, only prong #2 applies because if the crime gets committed, then you didn’t persuade him not to do it nor did you otherwise prevent it. #1 comes into play when the crime is committed. That is inoperative when it comes to solicitation. The only prong is #2. 


Problem Set 25


Required Readings: Dressler, 539-56, 585-87; MPC, §210



It’s a result crime, a more complex crime. No dead body, no homicide. How informed do you have to be to what you are consenting to? Is the consent voluntary? What kind of coercion vitiates consent? Have sex with me or I’ll kill you, OR Have sex with me or I’ll buy you a coke. It’s probably not going to count in a rape prosecution if you say I really wanted a coke and he knew it. When you think about the continuum for a desire not to be killed…


Homicide has it’s own special defense.

In the case of the provoked homicide, what would ordinarily be a murder, get’s reduced to manslaughter. The spouse catches his spouse in infedility, and kills the spouse and then says I was so agitated that I should get this defense.



1.                   Omit consideration of felony-murder, misdemeanor-manslaughter, and provocation.  Consider the following ingredients: purpose to kill, purpose to inflict severe bodily injury, knowledge re: death; extreme recklessness re: death; recklessness re: death; negligence re: death; strict liability re: death; and premeditation.  Next, consider the MPC’s tripartite division of criminal homicide into “murder,” “manslaughter,” and negligent homicide (“involuntary manslaughter”).  Finally, consider a typical state’s division of criminal homicide into four parts, the last two the same as the MPC’s manslaughter and negligent homicide, and the first two representing a division of the MPC’s “murder” into first and second degrees, with first degree reserved for cases of “premeditation.”  Finally, assume that the typical state also treats purpose to inflict severe bodily harm as always sufficient for murder.

Construct a chart analyzing criminal homicide under the MPC and in a typical state in terms of the aforementioned ingredients.  (Worth two pages)

Look at graph. Consent it important. It’s nature is very controversial. Consent must be informed. What counts as consent and why? How much information is enough for consent. What does it take to give consent?

Can consent be informed and voluntary? What type of coercion vitiates consent? Think about the continuum and the desire for trivial gain, where does the line cross when giving voluntary consent. The consent is voluntary in all of the situations. (ex. Submit or be killed)


Homicide has it’s own special defense - provocation. It’s not a complete defense.




Mens Rea


Mens Rea


Purpose (to kill) & premeditated


Purpose, knowledge, or extreme recklessness


Knowledge (death) & premeditated



Voluntary Manslaughter

Purpose to inflict great bodily injury & premeditation



Neg. Homicide

Purpose (to kill)




Knowledge (death)




Purpose to inflict great bodily injury




Extreme Recklessness




Ordinary Recklessness

Voluntary Manslaughter




Involuntary manslaughter



**Premeditation is not an element. The major difference btw MPC & common law. The purpose to inflict great bodily injury is treated at extreme recklessness.

MPC has taken 1st & 2nd degree murder and put it under the umbrella of Murder.

Manslaughter & negligent homicide aren’t different.

2.                   Defendant (D) has a heated argument with Victim (V), his roommate, in their apartment.  D leaves the room, goes into the kitchen, grabs a skillet from the stove, returns to the scene of the argument, and hits V on the head.  V is now in an irreversible coma on life-support systems.  V can remain alive this way for several years, and has already remained alive for two years.

You are the prosecutor in a state with homicide statutes that distinguish between first and second degree murder.  The state also has a statute on attempts that parallels MPC 5.01.  D has confessed that he was pretty certain the blow would cause death, and that because his concern was to hurt V very badly, he was indifferent to V’s dying.

With what crime should you charge D?  What would you have to prove?  (Two pages)

a.       Is D guilty of homicide? What does it turn on? It gets into the question of some importance which is the definition of death. In a different era (before modern medicine), it wouldn’t have been an area of practical concern. Is V dead for the purpose of the murder statute? What if V were to die in the next week after the time of this problem? The year and a day rule is disappearing. In earlier times when someone gets mortally wounded, but doesn’t die for a period of time, then you have the distinction b/w attempted murder and murder, then at what point is a person’s death attributable to the murder and at what point is it a separate thing? As long as the law distinguishes b/w attempted murder and murder, whne there is an attempt, how long do we have to wait to see if the person is going to die, in order to charge the person in case they do die? A lot of jdx apply the year and a day rule. Now, we can keep people alive longer. The D would be saying, please don’t pull the plug, please keep this person alive. The family would want to take this person off life support. Is this person guilty of attempted murder? What would you have to show here? You have to show whether he has the purpose or belief. 5.01(1)(b). You have to do something with the purpose of causing the result or with the belief that it will occur without further conduct on your part, what does it mean that you believe that it will occur? Does it mean practical certainty? Or does it mean likely? (No answer?)

b.       If we do charge him with a homicide, is it premeditated? Is the few seconds enough for premeditation? Their was passage of time. He went to the room for a few seconds. Some jdx’s say yes, some say no. There is not much to say about premeditation.

c.        Causation: why do we distinguish b/w attempts and successes anyways? What difference does it make whether in terms of how we should treat the D, what position we take on what counts as death and how long the thing should go? His culpability is affixed when he made the attack. The MPC has gotten rid of the distinction with the punishment b/w attmpets and successes except for high level felonies like murder.