Criminal Law- Guernsey

Bert thereupon pulls out a knife and confronts Jack with it. Jack backs up and runs for his car. Bert follows. Jack finds another golf club and hits Bert once, killing him.

Bert's use of a knife may change this into a new encounter. Even though Jack used his golf club on Bert's car, he did not aim for Bert's head or other vital parts. Therefore, Jack was not threatening or using deadly force. Bert's reaction, however, does constitute deadly force, and Jack may respond to it accordingly. In a jurisdiction generally requiring retreat, however, Jack may have to retreat, since Bert may not have the ability to pursue, catch, and stab Jack if he runs away. These factual questions and whether Jack's assessment of his chance of successful retreat was reasonable will be for the jury to decide.

Chase, a convict who knew that he was HIV positive, spat at a prison guard, screaming: "Now you will get AIDS and die, just like me!" In fact, AIDS seldom develops in human saliva, and there is a very low probability of transmitting AIDS by saliva. Fortunately, the guard has remained HIV free. Chase has been charged with attempted murder.

Chase has engaged in conduct that poses a much lower risk of infecting the guard with HIV, which can lead to AIDS and death. Yet, there is much better evidence (his own words) that Chase acted with the purpose of killing the guard. Thus, the prosecutor has a stronger case for proving the mental state or culpability required for attempted murder. Note how attempt focuses more on the actor's intentions than on his proximity to succeeding in his goal. The defense could argue Chase's attempt to infect the guard with HIV by spitting on the guard is so inherently unlikely to result in AIDS and death that the court should dismiss the case. Keep in mind, however, the MPC does not recognize inherent impossibility as a defense.

Trevor and Gloria, college freshmen, met briefly during Greek Week. When Trevor asked Gloria for a date, she firmly declined. Trevor then acquired her e-mail address: a.The love-struck Trevor sent Gloria three e-mails, professing his undying love. The first stated that he thought of her constantly and could not get her out of his mind. The second stated that he would do anything to have her. The final one stated that, as he watched her walking to class, he realized she was the only one for him. Gloria, fearful of Trevor's obsession with her and his secret observation, became very fearful of what he might do next. Nervous and apprehensive, Gloria became very jittery and constantly looked over her shoulder whenever she left her room. Has Trevor committed a stalking offense? b.When Gloria did not react favorably to his "nice" e-mails, Trevor became angry and decided to send some intimidating messages to Gloria as payback. Trevor sent her two anonymous e-mails. One contained lyrics from a contemporary rap song which were sexually explicit and graphically violent. The other contained lyrics about constantly watching a woman who was unaware of the surveillance. Gloria trashed them, thinking a quirky friend with deficient social skills had sent them to her as a joke. c.After receiving more e-mails, Gloria obtained a restraining order against Trevor ordering him to refrain from all contact with her. Karl, a mutual friend, told Trevor that Gloria was so upset that she had gone to her parents' house, a two-hour drive from campus. Trevor looked up her parents' address and drove to her parents' home with the intention of seriously frightening her. As he approached the house, he circled the block a couple of times and then drove away because he did not want to violate the order. Gloria did not see him. Attempted stalking? Abandonment?

Even though Trevor's three e-mails were willful, they were not malicious and probably not harassing. In addition, Trevor did not intend to place Gloria in fear. Rather, it could be argued his purpose was to convey his heartfelt emotions. Nonetheless, Gloria became fearful for her physical safety because of the obsessive tone of these unwelcome e-mails. If the state stalking statute defines stalking as repeated behavior intended to cause fear of death or serious physical harm, then Trevor did not commit a stalking offense. His intention was not to create such fear; rather, it was to express his feelings for Gloria. If, however, the state law defines stalking as intentional conduct that the individual should have known places a reasonable person in fear of death or serious bodily injury, then Trevor (despite his nonthreatening intentions), has committed a stalking offense if Gloria's fearful reactions of serious bodily injury were reasonable. 12b.Gloria is not fearful for her physical safety, but Trevor intended to intimidate and harass her and to put her in fear of serious physical harm. Thus, he would clearly be guilty of stalking under a statute that focused on the culpability or attitude of the actor — repeated threatening behavior intended to put the victim in fear. However, he might not be guilty under a law that focused on the harm done — intentional conduct the actor knew or should have known would cause fear of serious physical harm in a reasonable person — because Gloria was not frightened and, arguably, neither would a reasonable person. If the statute required both that the actor intended his conduct to cause fear of serious physical safety and that it did cause such fear, Trevor could not be convicted of stalking. 12c.Trevor seemingly had the mens rea to commit a stalking offense. He located her parents' address and drove to her parents' home with the intent to frighten Gloria. Can he be convicted of attempted stalking? Under the common law, Trevor did not take the last step since he did not actually try to contact Gloria; moreover, he changed his mind about intimidating Gloria. But, under the equivocality and proximity tests, he might be convicted of attempted stalking. Likewise, under the MPC, Trevor could be convicted of attempted stalking. He took a substantial step that strongly corroborated his criminal purpose. He located his victim and drove two hours to come into close proximity to her. Has he renounced his criminal purpose? This is a close case because he broke off his course of conduct to avoid violating the court order, not because of a sincere change of heart. What do you think? Notice how moving back the threshold of criminality in a codified offense such as stalking may allow an "attempt" to occur even earlier.

Heather and Penelope are having lunch at the Brass Rail, a posh watering hole for the upscale and trendy. Bemoaning the high price of the cocaine they consume in rather large quantities and the resulting crimp in their lifestyle, Heather turns to Penelope and says: "Why don't we sell the stuff ourselves? That way we can make enough money to buy and use as much as we want and have enough money left over to indulge ourselves." Penelope, sipping her champagne slowly, finally says: "That is a great idea. Let's do it! I know where we can get crack cocaine in volume and on credit. I will call my friend tomorrow and make the arrangements. We are on our way to coke independence!" Heather and Penelope then lift their glasses to toast their arrangement, saying in unison: "To our new business!"

Heather and Penelope agreed to commit at least two crimes, (1) the purchase and (2) the subsequent sale of drugs. Under the common law and the MPC (because the substantive crimes that are the object of the agreement are serious felonies), Heather and Penelope committed one conspiracy once they entered into the criminal agreement (even though it had two target crimes). In many jurisdictions, however, one of the parties must commit an overt act in furtherance of the conspiracy in addition to the agreement before the elements of conspiracy are satisfied. In these jurisdictions, Heather and Penelope have not committed conspiracy until one of them does an overt act to implement their agreement.

Ludwig calls his girlfriend, Elise, on the phone. Although she answers, Elise says, "I can't talk now, I'm driving." Ludwig responds, "Don't be silly. You've got a hands-free phone. No prob." Elise agrees and continues to talk with him for five minutes, but the conversation is stopped short when she runs through a red light and crashes into a van, killing three people. (a) Is she liable for their deaths? How about Ludwig? (b) Would it make a difference if the state had a law, punishable by a $100 fine, precluding use of a handheld cell phone while driving? (c) Suppose instead the two were texting?

If the risks of cyberbullying are not well-known or are too small to result in a conclusion of negligence (or worse) (see Example 14 above), the same cannot be said for using cell phones while driving. And the data are crystal clear here — the dangers from hands-free cells are just as high as those from hand-held. Even if neither Elise nor Ludwig knows that, they "should" be aware of those facts. Moreover, since she is driving there could be an argument made that she is engaging in an inherently a dangerous activity (while on the phone), and thus Elise's actions might well be "grossly negligent" under the common law and "criminally negligent" under the MPC. That many (possibly even a majority of) people continue to use cell phones while driving could potentially make the action less likely to be criminally prosecuted; however, negligence is judged by the reasonable person, not the ordinary person. Of course, even if Elise is liable, Ludwig may well argue (lack of) causation — Elise could (and should) have terminated the conversation, and it was her failure to keep watch that was an intervening cause that resulted in the collision. Ludwig is not an accomplice (see Chapter 14) because he had no intention, nor purpose, that a collision occur. 15b.Ironically, the statute might make the duo less liable for the deaths. Even if the legislature has acted unreasonably (by not banning all cell phone use, handheld or hands-free, given the data), El and Lud can certainly argue that the legislature has implicitly said that hands-free is not as negligent as handheld. That the legislature might have made a "politically sound" rather than a "statistically sound" judgment is not likely to undermine their position. If cell phone use is dangerous, texting while driving is even more so. Fifteen states ban cell phone use while driving; Forty-seven ban texting. http://www.ghsa.org/state-laws/issues/distracted%20driving (last visited Jan. 25, 2018). A Car and Driver test showed that driving while texting is 20 times more dangerous than driving while inebriated. http://www.caranddriver.com/features/texting-while-driving-how-dangerous-is-it. There is a stronger case that Elise (at least) is criminally negligent. Whether she (or Ludwig) actually considered the possibility of a car accident is relevant under the MPC and probably under the common law as well if the prosecutor seeks to show "recklessness" or a "depraved heart." In a recent prosecution in Massachusetts, the texting driver was convicted of motor vehicle homicide and sentenced to 2.5 years in prison, with the last 18 months to be served on probation. http://www.usnews.msnbc.msn.com/_news/2012/06/06/12090348-massachusetts-teen-sentenced-to-prison-for-texting-while-driving?lite.

Jacob is a devout Snaker. His religion teaches him that no bite of a snake will be harmful, much less deadly, if the handler of the snake has true belief in God. Jacob does. He therefore takes his six-month-old son to church one day and, handling the snakes himself, allows them to bite the boy three times. The boy dies. Assume that a statute penalizes, in varying degrees, anyone who causes the death of another. Of which of these crimes, if any, is Jacob guilty?

More difficult at first blush. Clearly, Jacob "caused" his son's death. However, common law courts, certainly when faced with a severe punishment (possibly execution), would usually read into a statute like this some level of mens rea. Almost certainly they would have required at least recklessness. Staples, discussed in the text, adopted "knowingly" as the position in a nonhomicidal (federal) case. Even if recklessness were the requisite mens rea, Jacob is not guilty, since that mens rea requires subjective awareness of the risk. The result under the Code is the same. Section 2.02(3) establishes recklessness as the "default" position in such statutes. Since, as discussed above, Jacob did not consciously disregard the risk of death for his son, he was not reckless. This is an unsettling result. Obviously, Jacob is a dangerous person, at least to his own children. Is there nothing the law can do? There is, in fact, much that the "law" can do. Jacob might be civilly committed for mental illness (assuming the jurisdiction has the properly drawn statutes and Jacob fits within them). The state could also take away Jacob's other children. Very frequently the undoubted need of society often persuades courts or legislatures to "find" some crime of which Jacob could be convicted, rather than rely on processes of civil commitment, confinement, quarantine, reeducation, and so on. See, e.g., State v. Williams, 4 Wash. App. 908, 484 P.2d 167 (1971). There is one crime of which Jacob is almost surely guilty (aside from child abuse). If "negligent" homicide were punished in the state, and negligence were measured by an objective, rather than a subjective, standard, Jacob would almost certainly fall within that statute.

Suppose that, instead of having intercourse in the hotel room, Mama was having her foot massaged by her (obvious) boyfriend.

Movie buffs will recognize this crime. In Pulp Fiction, the boss had someone thrown out of a window for massaging his wife's feet. That crime is reported, but never seen. The answer under the common law is clear — nothing less than intercourse could be adequate legal provocation. Under the test of the "reasonable person," however, and certainly under the MPC approach, this question might go to the jury.

Suzy, tired of her marriage, decided to kill her husband, Bob, and collect his life insurance. She purchased a .38 caliber pistol, took shooting lessons, and put the gun in the drawer next to her side of the bed. Pretending she heard a burglar late one evening, she induced Bob to go outside their house to investigate. a.Suzy shot Bob in the head, later telling the police she thought he was a burglar. Bob did not die but lived on in a vegetative state. b.Suzy loaded her .38 caliber pistol, sneaked out the back door, and, unknown to Bob, with finger on the trigger, aimed directly at his heart. She fired but the gun only made a loud noise. Unknown to Suzy, she had loaded the gun with blanks, thinking they were real bullets. c.Suzy loaded her .38 caliber pistol with real bullets, sneaked out the back door, and, unknown to Bob, with her finger on the trigger, aimed directly at his heart. Suddenly, Suzy became upset. She sneaked back inside without being detected, put her gun away, and awaited Bob's return.

Suzy's purpose was to kill Bob. Because she acted with the purpose to achieve the result element of the target crime, causing the death of another human being, and did the last act necessary to accomplish that result (or took a substantial step under the MPC), Suzy committed attempted murder even though she did not achieve the intended result. 1b.Suzy had the necessary mens rea to commit murder. She intended to kill another human being. She also acted on that criminal purpose by purchasing a gun, becoming proficient in its use, and luring her victim to a scene where she could establish a good cover story explaining the murder as an accident. Under the common law, she took the last step; she actually pulled the trigger of what she thought was a loaded pistol while aiming it at Bob's heart. In addition, her behavior probably satisfies the equivocality test because her course of conduct seems consistent only with a planned murder. (However, because the jury cannot consider any evidence other than her conduct, it could conclude that her behavior was consistent with law-abiding conduct; i.e., she was looking for a burglar and was simply mistaken as to Bob's identity.) Under both the proximity test and probable desistance test, Suzy has committed the actus reus of attempt. She has come very close in time and space to causing the result (proximity test), and she did not break off her criminal course of conduct (probable desistance test). Under the MPC, Suzy took a substantial step that was strongly corroborative of her criminal purpose. She obtained a gun, learned how to use it, lured the victim to the contemplated crime scene, aimed the gun at a vital part of Bob's body, and pulled the trigger. Suzy might argue impossibility. However, this is simply a case of factual impossibility (unknown to Suzy, the shells were blanks, not bullets), not legal impossibility (there is a law against unlawfully killing another human being). Factual impossibility is no defense at common law. Under the MPC, had the facts been as Suzy believed them to be (i.e., the gun was loaded with bullets, not blanks), Suzy would have committed the target crime (assuming a good aim). Thus, she is guilty of an attempt. The MPC focuses on the defendant's attitude more than on how close she came to actually causing harm. 1c.The same general analysis for mens rea and actus reus used in Example 1b applies here. However, Suzy has not taken the last step (there is still an opportunity to repent and she did), nor is it clear that her conduct satisfies the equivocality test (she could have been looking for a burglar). The prosecution would have a better chance under the proximity test (she stalked her victim and almost pulled the trigger) or probable desistance test (though Suzy did break off her criminal conduct and change her mind, most citizens would not have gone as far as she did). Because murder is a serious crime and most law-abiding citizens would not go through such an elaborate scheme, a jury could convict her under all of these tests except the last-step test. Note how the common law requires the defendant to come very close to actually committing the target offense and also requires strong evidence of criminal intentions. The MPC, however, is more concerned with preventing harm and apprehending dangerous individuals; it is less concerned with waiting until the last possible moment to see if a defendant will actually commit the target offense. Under the common law, there is no defense of abandonment, so Suzy cannot claim she has changed her mind. Under the MPC, Suzy can present evidence that she renounced her criminal scheme and did not have the firmness of criminal intention. She also might argue that her renunciation was complete and voluntary because she could easily have carried out the murder as planned. There were no unexpected facts making it more difficult. Suzy would argue that she was filled with remorse and should not be convicted. Her change of heart shows she is not really dangerous. This will be a jury question.

Horace, a nurse at the local hospital, has spent the last three years ministering to those in the last stages of AIDS. Distraught by what he has seen, he steals hypodermics and syringes from the hospital and distributes them to heroin and cocaine addicts in an attempt to reduce the spread of AIDS. He is prosecuted for (1) larceny; (2) distribution of drug paraphernalia.

The claim here must be one of necessity. Yet the threat of death to the addicts is surely remote for most of those who received the needles: Even if some of them were to become afflicted with the disease, their deaths are not "imminent."33 Moreover, from an objective viewpoint, Horace has alternatives, including those of the usual political process. Therefore, Horace should be admonished to use those processes. On the other hand, Horace may seek to assert an "excuse" version of necessity; given his personal anguish over the plight of those with AIDS, he was subjectively unable to weigh carefully such arguments and honestly believed he was doing the "right thing." But will this defense work for the theft? Probably not, since Horace had an alternative — he could have bought the syringes. The case also asks whether, in assessing the weight of the defendant's actions against the crime committed, one should weigh the crime "in the abstract" (larceny) or in the context of the facts (larceny of needles from a hospital with distribution in mind). Horace will not have a defense under the common law but would have a possible defense under the Model Penal Code.34 In the past 20 years, all states have adopted, either by statute or administratively, some programs of needle distribution, which might dilute Horace's claim of necessity. He may think the statutory process is too narrow, but his claim that the political process is unyielding will be harder to make in 2018 than it would have been in 1990.

Remember Napoleon, who in Chapter 4 shot a rabbit, not knowing that he was even shooting a rabbit? Now assume that the rabbit was a snowshoe rabbit, which is listed as an endangered species under a state endangered species statute, which provides that "[i]t is unlawful to shoot a snowshoe rabbit." (a) He didn't know it was a rabbit he was shooting; (b) he knew it was a rabbit, but not a snowshoe rabbit; (c) he knew it was a snowshoe rabbit, but he had no idea that it was endangered; (d) the rabbit, which is rather large, actually attacked him, and he killed it, fearful for his life.

The first question is whether this is a strict liability statute. There are now many such statutes, both state and federal, premised on the need to preserve species. The more noted federal laws include the (1) Endangered Species Act, (2) Lacey Act, (3) Marine Mammal Protection Act, (4) Bald Eagle Protection Act, (5) Migratory Bird Treaty Act, and (6) African Elephant Conservation Act. In addition, there are a number of federal laws that address the protection of both heritage and habitat, such as the Wild Free-Roaming Horses and Burros Act. If the species is listed by either the EPA or a state agency as "endangered," the liability is usually strict — no matter how careful he was, Nappy would be liable. David P. Gold, Wildlife Protection and Public Welfare Doctrine, 27 Colum. J. Envtl. L. 633 (2002). If there were some mens rea requirement, but he knew it was a horseshoe rabbit, his failure to know that it was "endangered" would not be helpful — it's a mistake of law, or of legal fact (see Chapter 5), and he's liable. For a claim of self-defense (necessity), Nappy's belief might have to be reasonable. If he had shot a charging (protected) Florida panther, for example, it is more likely that he'd be able to claim necessity than for a charging rabbit, even a snowshoe one. There is, however, still a question of whether one can claim necessity if a crime is one of strict liability. See Chapter 16 for more details.

Dan tells Laura, his wife, that he is going out to rob a grocery store on the other side of town. Laura shouts out as Dan is leaving: "Be sure to bring back some milk while you are at it." Dan robs the grocery store and brings back a half-gallon of milk.

The general rule is that any encouragement is sufficient even though the principal would have committed the crime anyway. If the jury finds that Laura's statement was intended to encourage Dan to commit the crime and had any impact on the principal, it would be legally sufficient to convict Laura as an accomplice. See State v. Helmenstein, 163 N.W.2d 85 (N.D. 1968).

George Estate went out riding on his snowmobile on a bright sunny day. He took a trail, which he knew was near a national park, but thought nothing of that because he had been on the trail many times without getting into the park. Suddenly, however, there arose a "ground blizzard," which blinded George. His snowmobile soon failed. He built himself a snow cave and was rescued from there 24 hours later, suffering from frostbite. He is later prosecuted for violating 16 U.S.C. §551, which prohibits using a motor vehicle on national park land without permission. At his trial, the trial judge instructed the jury that he carried the burden of proving necessity. George appeals his conviction on the ground that the government had to carry the burden. Who's right?

The judge. First, there is the possibility that this is a strict liability "public welfare offense," in which case no mens rea is required for guilt (see Chapter 6). If so, there is some question as to whether any defense is available. Second, even if that were not the case, the Supreme Court has questioned whether a claim of necessity can be raised under a federal statute unless Congress has specifically permitted it. Third, even if the claim may be raised, it is arguable (though certainly not clear) that as in duress (see the Dixon case cited in the text), the government may require the defendant to carry the burden of proof. The contrary argument is that necessity is a justification, while duress is an excuse, and that it may be that the two are different for purposes of burdens of proof. See page 488-489. See also United States v. Unser, 165 F.3d 755 (10th Cir. 1999).

Justin unlawfully sold Erica a new prescription drug patch containing fentanyl, a pain-killing drug more powerful than morphine. The patch releases the drug over a three-day period and was intended for use only by cancer patients and others with serious chronic pain. Justin showed Erica how she could bite down on the patch and release the entire drug dosage instantly. Erica took the patch home, bit down on it, and died. Did Justin cause Erica's death?

The prosecutor would argue that Justin was the proximate cause of Erica's death. A reasonable person would anticipate that Erica would release the entire dosage by chomping down on the patch just as Justin had showed her. He or she would also understand that consuming such a large amount of this powerful drug could well be fatal. In illegally selling her such a powerful drug and showing her how to consume three days' dosage at once, Justin surely foresaw (perhaps even intended) that Erica would engage in very risky behavior that could well result in her death. Though Erica was the direct cause of her own death, Justin was the proximate cause by setting into motion the very chain of events that he expected or should have expected. Justin would argue that Erica was the direct and only cause of her own death. She was a responsible human agent who chose to consume the entire drug at once; thus, she, not Justin, caused her death. He is not criminally responsible for her independent decision. The prosecutor has the better argument here. Justin provided Erica with the illegal drug and showed her how to short-circuit the time-release mechanism so she could get high. Thus, Erica's risk-taking behavior, which directly caused her death, was reasonably foreseeable (and probably intended) by Justin. Thus, it was not accidental or remote in the least, and the jury would likely decide that she was a dependent intervening cause and hold Justin responsible. Justin would probably be found guilty under the MPC, as well. By making the powerful drug available and showing her how to misuse it, he is the "but for" cause of Erica's death. And since the result here is the same result as Justin expected (or should have expected), he has caused her death. The only serious issue is what level of culpability the jury would find.

Leonard, 5 foot 3 inches and 135 pounds, is walking down a dark street at 2 a.m. Suddenly, as he turns a corner, he is confronted by a man who asks him for a light. As Leonard fumbles for a match, the stranger says "Well, maybe you can help me with something else," and puts his hand inside his pocket. Leonard draws his concealed handgun and shoots the man instantly. At trial, the prosecutor shows that the stranger was reaching for a street map. Leonard seeks to introduce evidence that (a) five years ago he was attacked by a stranger and severely beaten; (b) his best friend was recently mugged in this same area; (c) the stranger vaguely resembled the drawing, which had appeared in a number of local newspapers and which Leonard had seen at least five times, of a suspected robber, whose robberies, however, had occurred in another section of the city. Leonard also seeks to introduce evidence that (d) the victim was 6 foot 6 inches, weighed 268 pounds, and was redheaded; (e) defendant has always had a dread fear of redheaded men; (f) the stranger was wearing a raincoat but it had not rained for three days and the temperature at the time of their encounter was 65°F. Which, if any, of these pieces of evidence bears on a defendant's liability and is therefore admissible?

The question deals with the extent to which the reasonable man has characteristics of the defendant. As suggested in the example, these questions usually arise during evidentiary rulings. If the jurisdiction allows the comparison, then the evidence is admissible; if not, then the evidence is excluded. The stranger's resemblance to the robber is likely to be admissible even in a jurisdiction using the objective test, since a "reasonable person" might be aware of the drawings and therefore might be more justifiably afraid of someone with this resemblance. The dress of the victim is likely to be admissible because it goes to whether Leonard's fears were reasonable (contrast cases involving a person wearing a three-piece suit and one where the stranger is wearing a leather jacket and a set of brass knuckles). The two crime incidents are unlikely to be admitted in many jurisdictions because they do not go to what the "reasonable man" (as opposed to Leonard) might draw from them. Leonard's paranoia about redheads is also likely to be excluded, and therefore, the fact that the defendant was redheaded.79 The longstanding paranoia is almost certainly not admissible since "reasonable people" are not paranoid. All the information is admissible in a jurisdiction that allows a claim if the defendant "honestly" believed himself to be in danger.

What if Shakir has a court order allowing him to divert the stream?

These circumstances make it clear that Shakir is justified in his act. But merely because he is justified does not mean that we should ignore Nelson's personal tragedy. Even if he were not justified, viewing him as excused seems correct.

Lyle, 14 years old, has been beaten by his father at least once every two months since the time he was seven. One night, three days before his junior high school graduation, Lyle and his father have another run-in, but his father is on the way to work. "You won't live to see graduation," says his father as he leaves. That night Lyle is unable to sleep. The next morning he goes to school but leaves at 11 a.m. to return home, where he picks up his father's shotgun and loads it. At 3 p.m. that afternoon, his father walks through the front door, and Lyle empties both barrels, killing him instantly.

These facts are very close to those of an actual case, State v. Janes, 64 Wash. App. 134 (1992). The questions raised include whether the father's words constituted an "imminent threat" of serious bodily harm or death, whether Lyle had alternatives other than killing, and whether he could reasonably believe those alternatives to be futile. All these issues could be used to determine whether the killing was "justified" self-defense. Still another issue that might be raised is whether Lyle had to retreat even if his father intended to beat him. Although he lives in the house, it is not, as a matter of property law, "his" house. Assuming for a moment that the killing is not justified, one other issue is whether Lyle could be excused: whether, notwithstanding the "intentionality" of Lyle's acts, the obvious stress under which he operated suggests that he is not as blameworthy as other "intentional" killers. If not, he might have his liability reduced to manslaughter. See Chapter 8.

Albert, a 36-year-old software developer, bicycles to work every day in San Francisco. On several occasions, he has just missed hitting pedestrians. On the fateful day, he was not so lucky. While biking downhill, and being clocked by various monitors at a speed of over 35 miles per hour, Albert sees a yellow light ahead of him but claims, "I was too committed to stop." The light turns red, and he collides with two pedestrians, one of whom is killed. (a) Of what level of homicide, if any, is Albert guilty? (b) May the prosecutor introduce evidence that four pedestrians have been killed in the city in the past year?

This incident occurred in San Francisco on March 29, 2012, and the cyclist was subsequently charged with felony vehicular manslaughter based upon reckless diving of a vehicle (yes, a bicycle is a vehicle for these purposes). See www.articles.latimes.com/2012/jun/16/local/la-me-sf-bikes-20120616. Whether Albert is reckless or not, of course, will depend on the facts as they develop. But if he has had several "near hits" on prior occasions, he's going to find it hard to convince a jury that he didn't "consciously disregard" a significant risk that he could hit a pedestrian. And going down those streets on Nob Hill at those speeds is certainly likely to result in serious injury or death. There is — as always — another side to some of these issues. It appears that bicyclists have been injured so often by cars (and sometimes pedestrians) that some are now wearing video cameras to provide evidence of how a collision occurred. See Nick Wingfield, A "Black Box" on a Biker, N.Y. Times, July 21, 2012, p. B1. Since the charge involves recklessness, the prosecution will have to show that there was serious risk of serious bodily harm or death. This evidence will therefore be admissible. Two questions, however, will remain: (1) does this level of injury per year, in a city of several million people, amount to a "substantial" risk of death of serious bodily injury? and (2) would it be prejudicial to introduce this evidence unless the prosecutor can also show that Albert was aware of this statistical danger? As the text suggests, "substantial risk" is really more a normative than an empirical judgment, and the evidence would be probative on at least the first issue.

Harry, the sorcerer's apprentice, was working hard in his lab when his mentor, Dumbledore, came in and told him to take the rest of the day off. Gleeful, Harry went to the florist to pick up a dozen roses, with which to surprise his new bride, Hermione. Well, he did surprise her. But he surprised Snape, too. Furious, Harry picked up the quidditch ball that he had brought back as a trophy for having won the latest tournament, and threw it at Snape. Snape, however, ducked, and the ball went out the window, where it killed Ron, Harry's best friend. Harry is charged with murder. Can he magically get the charge reduced?

This is difficult, because it raises the question of why the common law declared that acts in the "heat of passion" generated by "adequate legal provocation" reduced a killing to manslaughter. If the notion is that the provocateur somehow "deserved" his comeuppance because of his dastardly deeds, then Harry hasn't a chance — Ron certainly didn't deserve death just because he was passing by Harry's window. If, on the other hand, the argument is that Harry was transported by anger, then his ACT (and not its result) should be our focus, and Harry's act was surely provoked. This is also much easier under the Model Penal Code, which focuses exclusively on the defendant, and eschews the requirement that he be provoked by anyone, much less the deceased. If the jury could conclude (as surely it could) that Harry was reacting as many in his "situation" would, he will be convicted of manslaughter, not murder.

Bob and Marjorie own two, 120-pound dogs. Sometimes Bob walks them, sometimes Marjorie; on rare occasions, both do. On several walks, the dogs have lunged at passersby, but no person has ever been injured. On at least one occasion, the dogs pulled Marjorie for several hundred feet. One day, while Marjorie is walking both dogs alone, the dogs attack and kill a neighbor. The dogs were not muzzled. Marjorie tried, but was unable to stop them. At trial, Marjorie and Bob present evidence that although other dogs have killed strangers, (a) none of this breed has ever been involved in a lethal attack, and (b) no lethal attack, involving any breed, has occurred while the dogs were being walked. Is either Marjorie or Bob guilty of murder, and if so, what degree?

This, is the infamous "dog maul" case, discussed supra, page 210. This example contains some of the key facts. In the actual prosecution, the jury convicted Marjorie of second-degree murder, apparently finding that her refusal to muzzle the dogs, combined with her knowledge of the breed's general reputation for violence and prior incidents with passersby, constituted a "depraved heart." The jury also convicted Robert of involuntary manslaughter. The trial judge overturned Marjorie's murder conviction, however, holding that under California law (1) there had to be a high probability of death on any given occasion, and (2) the defendant had to know that there was a high probability of death. After declaring that Ms. Knoller had lied continually on the stand, the trial judge concluded that she had told the truth when she said that she did not know that death was a highly probable result. The California Appellate Division reversed the trial judge. The appellate opinion held that the jury could have found that the prosecution proved that there was a "base, antisocial motive and wanton disregard for human life or [knowledge] that one's conduct endangers the life of another and consciously disregards that risk." The murder verdict was reinstated. People v. Noel, 28 Cal. Rptr. 3d 369 (Cal. App. 1 Dist. 2005). As noted in the text, the California Supreme Court reversed, finding that both the trial judge and appellate courts had used erroneous definitions of "malice aforethought." Instead, said the court, the prosecutor need prove only that the act was "dangerous to life" and that the defendant was "consciously aware" of that risk. On remand, a new judge found Ms. Knoller guilty of second-degree murder and reinstated the original jury verdict. A number of state legislatures have considered, or enacted, legislation imposing criminal liability on dog owners when the owner knew or should have known that a dog was potentially dangerous. See ABA Journal 26 (Jan. 2003).

Glen does not know it, but both of his taillights are out. Because of this, Linda collides with his car from the rear, and kills Joshua, Glen's passenger. Driving without operative taillights is a strict liability misdemeanor. Is Glen guilty of manslaughter?

Under application of the misdemeanor-manslaughter rule, Glen is guilty of involuntary manslaughter, even if his failure to be aware of the dead taillights is not negligent. The Code rejects this rule and would require proof that Glen's failure to know of the situation was "grossly deviant" from the actions of an RPP.

Happy Hennigan, the used car man, knows that the car he is selling Juanita has a defective motor block and will probably run only 500 miles before dying. Assuming that he makes no representations of the fitness of the car, even when asked by Juanita, of what crime is he guilty when he takes her money?

Under the common law, Happy's happy. Obviously, Juanita consented to pass title to her money so this could only be false pretenses. But it is not false pretenses because the common law required an affirmative misleading; passive nondisclosure, in the absence of a fiduciary duty, would not suffice. Under modern statutes, however, this may be theft. Even here, however, the question is close. Section 223.3 of the Model Penal Code, for example, requires that the defendant "reinforce" a false impression, and there is no reinforcing here. The only exceptions involve fiduciaries or those who have previously set the false impression.

Imam is a Sikh, whose religion requires him to wear a turban. Imam has been subjected to many outspoken abuse, and many people have addressed him as "*********." Among these folks is Imam's boss, Sarah. For the past two weeks, Imam has spent hours and overnights working on a major project. He is exhausted, but proud of his work. He hands the completed report to Sarah, who, taking one look at it, throws it at him, hitting him on the arm. As she does so, she says, "Do it again, *********. Even you can't think this (expletive deleted) is sufficient." Imam picks up a tape dispenser and throws it at Sarah, killing her. What level of homicide?

Under the common law, Imam is likely to be guilty of murder. It is very unlikely that he can successfully claim "heat of passion," for several reasons: (1) insulting words are never adequate legal provocation; (2) the common law rarely recognized "cumulative provocation," so the fact that Sarah was constantly abusing him will not help him — indeed, it may undercut his claim, since he never reacted with deadly force before; and (3) the reasonable person of the common law probably is not a Sikh, and it is unlikely that a judge would tell a jury to assess Imam's actions as those of a "reasonable Sikh." The problem, of course, is that to a non-Sikh, "*********" does not demean or attack one's religious views. Imam has one possible claim — the file that hit him on the arm. Common law sometimes stated that "an assault" was sufficient provocation. But usually, the assault had to be more than a "mere" touching. But wait — Imam's not through — the "assaults" that counted in the common law were typically "insulting" touches. The writers and courts often wrote of a "mere fillip upon the nose" as being sufficient provocation, because the act insulted the defendant's dignity. It's not likely that this would be followed in the twenty-first century, but consider the possibility that a minor touching might qualify while the deepest verbal insults won't even get Imam to the jury. Under the MPC, the case is entirely different. The Code does not require a provocation — merely that the defendant act under "extreme mental or emotional disturbance." Sarah's constant attacks on Imam, combined with his exhaustion, as well as her direct rejection of his work, might raise a jury issue here. Moreover, the MPC asks the jury to consider the actions from someone in the defendant's "situation." As the text suggests, this may not include hotheadedness — but Imam's longstanding toleration of these insults might demonstrate that he does NOT have a short fuse, and that the jury should consider all these factors as part of his "situation" and the "reasonableness" of his explanation.

Janet and her husband, Bob, often get into heated arguments; sometimes Janet even turns violent. Janet has been known to strike or kick Bob in the middle of arguments, or even throw objects at him. However, Janet has never seriously injured Bob. One day, Janet and Bob are in the middle of one of their biggest arguments to date and Janet, in the heat of the moment, grabs a nearby pocket knife and stabs Bob in the leg. Shocked at what she had done, she called 911, but it was too late by the time they arrived. Janet had hit an artery in Bob's leg and he bled out in minutes. When the police arrived, Janet insisted that she did not intend to kill Bob, only hurt him a little; she never imagined a thin, 2-inch knife to the leg could actually kill someone. Assume Janet is of sound mind. For what level of homicide, if any, is Janet culpable?

Under the common law, Janet will likely be charged with second-degree murder. There is a legitimate question as to whether Janet acted with "malice aforethought." There is no evidence that Janet truly wanted to kill her husband; arguably, the fact that she stabbed him in the leg — as opposed to the chest or stomach — corroborates her story that she only intended to harm him. However, recall that the common law presumes that an actor acts with malice when killing with a deadly weapon. Here, such an inference may be a reasonable one. Moreover, without any evidence that Janet premediated the murder, a prosecutor would likely not charge her with first degree felony. Another possibility under the common law is manslaughter, since Janet did not have the intent to establish a first or second degree murder and this likely qualifies as an "accidental" killing. Under the MPC, Janet would likely be charged with some type of homicide; but the question of which type is a close one. Janet did not deliberately kill her husband, so she did not act purposely or knowingly. However, stabbing someone with a knife is arguably reckless under circumstances manifesting indifference to the value of human life. This would be the prosecutor's best argument to support a charge of murder. Recall, however, that the Code's definition of "reckless" requires that the actor subjectivelyrecognize the risk of death. If Janet can successfully show that she honestly believed there was no risk of death in stabbing someone in the leg with a small pocket knife, then she may escape liability for murder. However, the prosecutor may have an argument that Janet was criminally negligent, and so, liable for manslaughter (or negligent homicide under the MPC). This will likely come down to whether the jury finds that a reasonable person should have recognized the potential threat to life in stabbing someone as Janet did (see below for further discussion on the "reasonable person" standard in this context).

Tubby drank incessantly. He was always being arrested for being drunk in public and other nuisance crimes. Finally, Tubby drank so much, he suffered organic brain damage. He began to hallucinate and to imagine terrible creatures were attacking him while he slept. One evening, a police officer tried to wake him after he had fallen asleep on a park bench; Tubby attacked the police officer, mistaking him for a giant spider. Can Tubby introduce this evidence in his trial on third-degree assault for attacking a police officer while in the performance of his duties?

Under the common law, Tubby could not introduce this evidence to negate mens rea because he is not charged with a specific intent offense. Because Tubby's extended drinking has actually caused organic brain damage with resulting impairment in his cognitive abilities, he may now also have a defense of legal insanity. Depending on the jurisdiction, this might be a successful defense, though it may also lead to mandatory commitment in a mental health facility if the jury finds Tubby "not guilty by reason of insanity." Under the MPC, Tubby could introduce this evidence if it negatives an element of the crime, including recklessness. Because Tubby was intoxicated and did not know that he was attacking a police officer while in the performance of his duties, this evidence should be admissible and Tubby may be acquitted. However, the MPC would not allow Tubby to raise the special affirmative defense of intoxication because his intoxication was self-induced. He may still have a defense of legal insanity if experts conclude that organic brain damage caused by excessive alcohol consumption is properly characterized as a "mental disease or defect" as used in the MPC.

Papa, depressed by his discovery, and having no clue where Mama is, simply waits at home for her. When she arrives, he asks where she has been, and she responds "I've been with a real man, you chump," at which point Papa hits her with the champagne bottle, killing her.

Under the original common law, Papa has no reduction because words alone are never adequate legal provocation. However, under more recent doctrine and under the Code, this will be a jury question.

Same facts, except as Joe and Rhonda enter the jail, Jay sees Rhonda pointing a gun at Doug's head. Jay screams to her: "Put the gun down. Don't shoot him!" Rhonda ignores Jay and kills Doug.

Under these facts, Jay might still be responsible for Doug's murder under the Pinkerton rule. Though he tried to prevent Doug's murder, the prosecutor could still try to establish that this crime was foreseeable and in furtherance of the conspiracy. Under the MPC, it will be very difficult to prove that Jay, who was confined to a cell, is responsible for the murder. Not only did he not assist or try to assist in any way; he actually tried to prevent the crime. Thus, he is not an accessory to Doug's murder.

Samantha and James meet in a bar and go to James' apartment, where they spend the night "Netflix and chilling." The next morning, they are awakened by Jennifer, James' ex-girlfriend, who has a key to the apartment. Jennifer throws a book at James, knocking him out. She and Samantha then get in a fight, at which point Samantha sees a gun on James' coffee table. She picks it up and aims it at Jennifer, who runs into the bedroom and closes the door. Samantha aims the gun at the door and pulls the trigger once. Jennifer is killed instantly. Samantha claims self-defense. Will she succeed?

Unlikely. Jennifer used force, but not deadly force, so Samantha's use of deadly force was probably excessive. Even if Jennifer had used deadly force, however, it is arguable that her race to the bedroom constituted withdrawal, thus nullifying Samantha's claim. If that weren't enough, Samantha probably will have to retreat — although she's James' guest, most states would probably not allow her to avail herself of the "castle" doctrine.80 However, this decision was rendered prior to the "Stand Your Ground" Act in Florida, quoted in the text. Under that statute, even though Samantha cannot claim the "castle" doctrine, she can claim that she had a "right" to be in the apartment, and therefore did not have to retreat.

Suppose that months ago, Jeff allowed Vince to drive his car to another match, giving him a key, and that Vince and Jeff both forgot, so that Vince retains the key. If Vince used that same key to take the car, is it still larceny?

You bet. Jeff's earlier acquiescence was only for that one trip and match. Unless Jeff expressly permitted Vince to "use the car any time you need to get to a match," there was no consent to the most recent taking of the car. Vince can again make the argument (likely unsuccessful) that he never intended to permanently deprive Jeff of the car.

Zeke, a cocaine dealer, sells Gonzo, one of his regular purchasers, enough cocaine for six days. Gonzo takes the cocaine home and, in a fit of depression or pique, consumes all six days' supply in one hit and dies. Will Zeke be guilty of murder?

Zeke may be liable for felony murder in some jurisdictions, which have declared drug transactions (or sales of specific drugs) "inherently dangerous" in the abstract. This is a difficult result to accept, since hundreds of thousands of sales are consummated every day with relatively few deaths. Courts have reached differing conclusions. Most find that drug transactions are not, per se, inherently dangerous. Some find no causal relation between the sale and the overdose unless the seller (a) helps administer the fix or (b) watches while the victim administers the fix. But in those situations, the act is not "really" the sale, but the administering or encouraging the administration of the drug. Moreover, this seems to be applying the "as perpetrated" approach rather than the "in the abstract" approach, and may not need the felony murder doctrine at all to convict. Again, if Zeke knows that Gonzo has overdosed before, Zeke's transfer of so much cocaine at one time might be found by a jury to reflect "a conscious disregard of a risk . . . etc." under the Model Penal Code or the common law, qualifying Zeke for either manslaughter or murder but not "felony murder."

Linda robs a bank while Brad drives the getaway car.

Brad intentionally provided assistance to Linda while she committed the bank robbery. Thus, Brad is an accomplice and could be held liable as such for the crime of bank robbery committed by Linda. At common law, Brad would be a principal in the second degree because he was present and rendering assistance while Linda, the principal in the first degree, was committing a crime. Under the MPC, and most modern statutes, Brad would be considered a principal and would be convicted as such for the crime of bank robbery because he purposefully rendered aid to one he knew was committing this crime.

Martin was desperate for money. One night he deliberately set fire to a large, abandoned warehouse he owned in order to collect the fire insurance. The fire department responded and started to fight the fire. Sven, a firefighter, wearing a breathing apparatus with a 30-minute tank of oxygen, entered the burning building without a buddy. When the alarm signaled that Sven had only five minutes of oxygen left in his tank, Sven disregarded it and stayed to fight the fire. Almost five minutes later, Sven died from suffocation. Fighting a fire "solo" (without a buddy) and failing to immediately leave a fire when the warning signal sounds on the oxygen tank are both serious violations of department regulations. Should the judge instruct the jury that Martin could not have caused Sven's death?

In charging Martin with felony murder (see Chapter 8), the prosecutor will argue that an arsonist creates a risk that a firefighter may die fighting the fire. Thus, this particular harm is, or should be, within Martin's contemplation and occurred during the course of the victim doing his job. Martin's setting the fire was the proximate cause of Sven's death. Martin will respond that he did not proximately cause Sven's death. Sven should be considered an independent intervening cause of his own death because Sven would not have died if he had complied with the department's regulations. By disregarding two separate regulations, Sven acted negligently, or even with gross negligence, and such negligence by a professional firefighter is simply not foreseeable. The court will probably conclude that an arsonist has no right to expect that a fire will be fought carefully, and that any negligence by a firefighter that contributes to his death does not preclude a finding of proximate causation. Under the MPC, Martin's conduct satisfies cause in fact. Though the MPC does not provide for felony murder, in analyzing causation the Code asks whether the causal agency for this harm is "too remote or accidental" in its occurrence to have a "just bearing" on Martin's responsibility. A jury could go either way in this case. It might find no causation here if it concluded that Sven acted in a very unprofessional and reckless manner. Or, angered by the death of a public servant in the course of his duties, the jury might want to blame Martin and, in order to achieve this goal, find that Martin did cause Sven's death and thus convict him of some form of homicide. Ultimately, causation in this case is a value judgment to be determined by the fact finder.

In September 2010, Taylor jumped to his death from the George Washington Bridge, humiliated by the dissemination on MyTube and the Internet of a video taken by his roommate, Rave, showing Taylor and another man involved sexually. Is Rave criminally liable for Taylor's death?

This, of course, is the nationally publicized case of Tyler Clementi. Clementi's suicide was the latest in a series of such deaths that had, in one way or another, occurred after similar abuse. In another well-known incident, 13-year-old Megan Meier hanged herself fifteen minutes after she received a Myspace message, ostensibly from a 16-year-old neighbor boy, that declared, "The world would be a better place without you." In fact, the was message sent by a 49-year-old woman who believed Megan was spreading rumors about her daughter. At least six states have enacted statutes criminalizing abuse of the Internet and social media. Lyrissa Lidsky and Andrea Pinzon Garcia, How Not to Criminalize Cyberbullying, 77 Mo. L. Rev. 693 (2012).45 These statutes raise significant First Amendment issues and carry relatively small sentences.46 The question for this chapter, however, is whether the roommate, or the mother in Meier's case, is criminally responsible for their victims' deaths. As we saw in Chapter 7, there are a few decisions where a victim's suicide has been held to be "caused" by the defendant, but these cases usually involved serious physical violence (or even attempted murder) by the perpetrator. Assuming that causation can be proven, demonstrating that the cyberbully is criminally negligent or reckless will be quite difficult. As horrifying as the action of the roommate or the mother is, the likelihood of suicide or some similar self-injury is low. Even though it is highly unlikely that any person seeking to torment another on the Internet has not heard of one or more of these tragic results, the statistical likelihood of suicide from such an event is incredibly low. One survey, for example, indicated that 35 percent of surveyed teens said that they had been the subject of "rude" or "nasty" or "threatening or aggressive" messages. See Lidsky and Garcia, supra, at n. 45 page 259. Yet the usual reaction is either anger or frustration, not self-loathing. This then raises the question whether the (mathematically low) risk of self-injury is so trivial that not even a reasonable person would consider it. The alternative interpretation is that whether a risk is "substantial" is not quantitative but normative, and that any possibility that death would result from this kind of activity is sufficient to make the defendant "criminally negligent" or possibly even reckless.

The U.S. Army charged eight soldiers, including a platoon leader, with manslaughter and involuntary manslaughter after Daniel, a 19-year-old soldier of Chinese descent, killed himself while on solitary guard duty in Afghanistan.26 The soldiers had bullied Daniel mercilessly, including — among other abusive acts — dragging him across a floor while pelting him with rocks, forcing him to hang upside down with water in his mouth, and taunting him with ethnic slurs. Can the soldiers be convicted of homicide?

A significant issue is whether the defendants caused Daniel's death. The prosecutor may have at least two theories available to prove causation. She would concede that Daniel, by discharging a loaded weapon into his head, was the direct cause (cause in fact) of his own death. However, she would argue that, if direct causation is required, the defendants' conduct had done so much physical and psychological harm to Daniel that he had become an "irresponsible" human agent, no longer rational and able to see a way out of his unbearable situation. Thus, defendants are the last responsible actors in this sad case and become the direct cause of Daniel's death by rendering him incapable of free will, including rational decisionmaking. If she must prove proximate causation, the prosecutor would probably have a somewhat easier road to conviction. She would argue that suicide was a reasonably foreseeable outcome of such intensive bullying over an extended period of time, especially when it occurs in a war zone and breaks the bond of brotherhood crucial to soldiers' survival on the battlefield. Even his platoon leader did nothing to prevent this hazing. No wonder Daniel concluded that going through the chain of command would not end his ordeal. Thus, Daniel's self-destructive act cannot be considered an independent intervening cause because his death in this manner was foreseeable. Note that the prosecutor does not have to prove that the defendants actually foresaw this outcome; she must only persuade the jury they should have. This issue is a mixed judgment of fact and values for the military jury based on their assessment of the defendants' moral culpability and their intuitive sense of justice in this case. Under the MPC, the prosecutor would only have to establish "but for" causation; this terrible death would not have occurred if the defendants had not engaged in such brazen and terrible acts of human degradation. Can she prove this? Soldiers in combat have been known to commit suicide. Can the prosecutor persuasively claim that Daniel would not have killed himself if the defendants had not bullied him? On the other hand, this type of violence against fellow soldiers is very unusual. If she can establish "but for" causation, the issue for the jury then becomes one of culpability. In this case, were the defendants either reckless or negligent as to the result of death? The prosecution would argue that though the defendants did not intend Daniel to kill himself, they surely were aware he might, or at the very least, should have been aware he might. Thus, Daniel's taking his own life was not too remote or accidental to have a just bearing on the defendants' liability. Again, this would be a judgment call for the jury. (See pages 209 and 214 in Chapter 8.) The defense will argue that Daniel took his own life and all responsibility for homicide stops with the last responsible human agent. Though defendants' conduct is reprehensible and worthy of punishment for less serious crimes like assault, Daniel had free will and could have — and should have — taken less extreme measures to stop the bullying. He could have reported the hazing to officers higher up the chain of command than platoon leader, spoken with the chaplain, or taken other steps that virtually every other soldier would take. Thus, the prosecutor cannot prove direct causation in this case, and homicide of any degree cannot be established. Neither can the prosecution establish proximate causation here. The defense would argue that neither the defendants nor other soldiers would expect a combat soldier would kill himself simply because he was subjected to harsh hazing or racial slurs. Hazing occurs with some frequency on the battlefield and victims do not take their own lives. This proves that the result here — the unfortunate death of a soldier — was too remote or accidental to be reasonably related to their behavior. Thus, under either common law or the MPC, the defendants cannot be convicted of homicide. If you were the prosecutor, would you charge the defendants with homicide? Would you vote to convict as a juror?

Linda enters a bank to rob it. She turns to Clara, a kindly elderly lady, and says: "Would you deliver this note to my boyfriend? He is the teller behind that first window. I don't want to get him in trouble for conducting personal business during banking hours." Clara gladly delivered the folded note to the teller. The teller opened and read it: "I have a gun and will use it. Put all the money in a bag and have this lady give it to me." He complied and gave the bag to Clara, asking her to return it to the person who gave her the note. Clara, not suspecting anything, took the bag and gave it to Linda, who promptly left the bank with the cash.

Although Clara assisted Linda in robbing the bank by delivering the note to the teller and then delivering the cash to Linda, Clara had no intention to assist Linda in the commission of a crime. Clara is an "innocent agent" who, while trying to be helpful, has been deceived as to what she is doing.

Twelve people, including George Prado and Joan Miro, all quite intoxicated, become entangled in a fight outside a bar. By the end of the fight, Miro has been fatally stabbed by Prado. Prado asserts that Miro came at him, punched him twice and shouted, "Tonight you die." None of the other ten saw the struggle nor heard any words. Prado moves to dismiss the indictment, under a "stand your ground" statute which provides "immunity" from prosecution unless the state can establish, prior to trial, "probable cause" to disbelieve his claim. What result?

Although the facts were much more complicated than this in Lemons v. Com. S.W.3d, 2012 WL 2360131 (Ky. App. 2012), the court held that the indictment should be dismissed because there were simply no actual witnesses to the stabbing to dispute the defendant's claim. Potential witnesses who might have testified otherwise were too intoxicated to provide substantial credible testimony to amount to probable cause (statute "dramatically changed the practice of criminal law in Kentucky").

Would there be a different result if the statute omits the word "willfully"?

If Cheek and Ratzlaf are limited to statutes involving the word "willfully" (and a requirement of specific intent), Sylvester is in trouble. However, if the cases apply to "complex" regulatory schemes, Sylvester still might be exculpated. Under the Model Penal Code, the requisite mens rea under §2.02(3) is recklessly, knowingly, or purposely (see Chapter 4). Since, by operation of §2.02(9), ignorance of the law is irrelevant unless purposely is the requisite mens rea, Sylvester will have no defense of ignorance of law. Note that the entire difference depends on the legislature's use of the word "willfully," and the assumption that the presence or absence of this mens rea word was intended to change dramatically the defendant's liability, even though his behavior is exactly the same.

Jason and Keefer agree to race their cars on a winding public street. Jason drives a BMW, which is extremely fast. Keefer drives a Honda, which has more agility but is slower. Without Jason's knowledge, Keefer adds a nitrous oxide system ("NOS," in professional racing circles) to his engine to boost its power and speed if necessary. (NOS allows the driver to inject gases into his engine that alter combustion and dramatically increase power and speed.) During the race, Keefer, aware that he is losing, decides to use his NOS and presses the activating button. Unfortunately, the NOS explodes, killing Keefer. Moreover, shrapnel from his car flies through the air and kills Ashley, who is walking on a nearby sidewalk. Did Jason cause the death of either Keefer or Ashley?

If the jurisdiction requires direct causation, then Jason clearly did not cause Keefer to install the NOS nor to use it; thus he was not the direct cause of either Keefer's or Ashley's death. Keefer's installation and use of the NOS was a but for cause (or "cause in fact") of both deaths, and the resulting explosion was the "direct" cause. Only Keefer's conduct brought about these results. If the jurisdiction requires only proximate causation, the prosecutor must prove that the defendant's conduct was a "but for" cause and that the harm was "foreseeable." Had Jason refused to compete, Keefer and Ashley would still be alive. His conduct probably satisfies "but for" causation. Were their deaths foreseeable? The prosecutor would argue that death during a drag race is known to happen, including deaths caused by unusual mechanisms. Moreover, installation of a volatile NOS is not uncommon in racing circles. Thus, he would maintain that its installation and explosion were foreseeable. The defense might agree that drag racing contestants are generally held responsible for actions of their competitors that typically occur during such heated and risky competitions, such as speeding, and passing in prohibited zones. However, it would claim that there was no reason to expect that a competitor's secretly installing a volatile NOS system is typical or even remotely expected in these already dangerous activities. Consequently, both Keefer's and Ashley's deaths occurred in a very unusual manner and through a bizarre causal mechanism and were not foreseeable. Ultimately, this is a jury question. Again, note that "foreseeability" does not require Jason to be aware of the NOS; rather, the question is whether there is some reasonable possibility that competitors might use this type of system. Under the MPC, Jason is a "but for" cause of these deaths. His conduct was necessary for these deaths to have occurred. Although the same kind of injury occurred as the actor contemplated (death of a competitor and a bystander), the causal mechanism may be "too remote or accidental" to "have a just bearing" on Jason's liability. If so, then Jason has not caused these deaths. The jury must decide this question. Would you convict Jason?

Roberta, angry at Raoul and wanting to kill him, pointed a loaded pistol at his head while Raoul was asleep and pulled the trigger. The gun discharged, killing Raoul. Did Roberta cause Raoul's death?

In firing a loaded pistol at the head of another human being, Roberta intended to cause a particular result, Raoul's death. In a homicide prosecution the prosecutor should easily establish causation as required by the law. Roberta's conduct was the cause in fact and direct cause of Raoul's death. The very same harm she intended to bring about occurred in exactly the manner Roberta intended.

Riffi is charged with intentionally (purposely) running down and killing Constantine. Riffi argues that Constantine was a complete stranger, and that the death was an accident. The prosecutor seeks to introduce evidence that Riffi is of Armenian background, and that Constantine is Turkish American. The prosecutor's theory is that Riffi is seeking revenge on the Turks for the genocide committed against the Armenians in the early twentieth century. Riffi argues that motive is not relevant to the criminal law, and that the evidence should be precluded. What result?

Motive is not an element of an offense — any offense — and so one would think that Riffi's motive would be inadmissible. But Riffi's motive here supports an inference that he acted "intentionally," and not accidently. The evidence is likely admissible.

Same facts, except that Hubert has no Uzi and instead wrestles the knife away from Lyndon and then stabs him to death.

Now the facts have changed. Hubert was under deadly attack. But when he wrestles the knife away from Lyndon, the situation may be different than in Example 1a. Since Hubert now has the knife, it is at least arguable that he could have retreated. On the other hand, Hubert might reasonably conclude (particularly in emergency conditions) that Lyndon would continue the pursuit, perhaps with another deadly weapon, unless Hubert stopped him now.

Pop shoots at Ashley and misses, whereupon Ashley takes Zuzu hostage, using her as a shield. Thereafter, (a) Pop or (b) a police officer responding to the call shoots at Ashley, killing Zuzu instead. Murder by Ashley? By Pop or the officer?

Recall our earlier discussion regarding felonious actors using third parties as shields from harm. Under this scenario, virtually all the courts, either in holdings or dicta, are in agreement that Ashley may be held responsible. The Model Penal Code would address the problem as one of cause, not of felony murder (see Chapter 7).

Evelyn and John have been married 15 years. Evelyn has lost $10,000 in a miscalculated investment in Bitcoin. To pay for her losses, she takes John's Rolex watch and sells it.

Since Evelyn took the watch without John's permission, it is not a "title" crime. It might be either embezzlement or larceny, but we need not bother with the distinctions between those crimes here since both agreed that spousally owned property could not be the subject of either offense. The MPC expressly abolishes the "spousal exception." However, "household belongings or personal effects, or other property normally accessible to both spouses" still cannot be the subject of theft as long as the parties are living together. The watch is a "personal effect" and is "normally accessible to both spouses." Thus, while taking some items from a spouse may now be theft under the Code, Evelyn is probably not going to the slammer.

Same facts, except that Alexander went to the bookstore with the purpose of taking the Christie book.

This is larceny; the taking and intent coincide. Larceny in this aspect is really an inchoate crime. Alexander's intent, not the actual loss, is the gravamen of the crime. Similarly, under the MPC, there is not even a minimum requirement of taking or asportation, and Alexander clearly exercised some unlawful dominion or control over the book.

Same facts and question as in Example 4a, except that the Hamlets are prosecuted under a statute providing that "writing a check on an account with insufficient funds is a felony, unless the defendant proves that he was unaware of the insufficiency."

We have now moved from presumptions to "affirmative defenses." Does this change the analysis? There is at least some suggestion in Patterson that it might. After all, if the legislature could punish mere "overdrafting" (and it probably could), then it would seem within its powers to make "lack of fraudulent intent" a defense. This demonstrates the fragility of the line, which seems to be drawn by the cases, between presumptions and affirmative defenses. Since, as suggested in the text, there appear to be few limits (under a theory of proportionality) to the state's ability to punish almost any act with almost any penalty, drafting this statute as an affirmative defense may abolish the possible constitutionality when it was cast as a presumption.

If so, was the Obama Administration correct in not charging those who relied on the OLC memo?

Whether the interrogators could rely on the view of OLC that the actions were not torture is a different question. Reliance on anyone is not a relevant claim, unless the crime is one of specific intent, which is what OLC appears to be arguing. The specific intent exception, however, operates where a crime requires a specific intent and the mistake or ignorance of law negates that intent. Moreover, as we have seen in the text, the law is especially averse to allowing reliance on counsel; the MPC excluded even reasonable reliance on counsel as a relevant claim.

Marty wants to surprise his wife, Mary Lou, with a diamond necklace. He steals from a jewelry store a box that contains such a necklace, without knowing that the owner, Diamond Lil, has rigged a bomb inside the box. When Marty gives the "necklace" to Mary Lou, she opens the box, the bomb detonates, and it's so long, Mary Lou. Has Marty committed homicide?

This example tests the outer limits of the greater crime theory. To the extent that the issue arises at all, it usually involves a fact that makes the first crime a "higher-level" offense of the same kind. The courts usually are not confronted with, and therefore do not discuss, whether the theory would apply to a different kind of crime (property vs. personal injury; possession of diamonds vs. possession of drugs, etc.). Even more than a century ago, one court expressed great concern over exposing a defendant who knew he was committing larceny to the far more serious crime of arson, when the method by which he committed the larceny resulted in the burning down of a ship. R v. Faulkner, 13 Cox C.C. 550 (1877). The court rejected what it called a "very broad" claim by the prosecutor that anyone involved in any crime should be held liable for any greater crime that happened (however accidentally) to ensue. Under the MPC, Marty can be punished only for the larceny, not the death. But be careful: When we get to felony murder (Chapter 8), the same question may be answered in a different way.

Johnboy is vacationing with his family near the Painted Desert, which is, as he knows, a national park. He sees a particularly attractive shard, about the size of a dime, which he puts in his pocket. The shard turns out to be more than 100 years old and is therefore an "artifact." He is prosecuted for "removing an artifact from a national park." What results under the following three circumstances? (a) Johnboy honestly and reasonably believes that he is not in the park. (b) Johnboy honestly and reasonably believes that the shard is a piece of plastic. (c) He honestly but unreasonably believes that the shard is a piece of plastic.

This scenario demonstrates the (indefensibly) different results the common law gave between unreasonable and reasonable mistakes as to fact and law. In (a), Johnboy will not be allowed to present evidence as to his reasonable belief as to his location, because he was ignorant of the law that applied where he actually was. Under the MPC, because "national park" is likely to be determined to be an element "exclusively related to jurisdiction," which does not require a mens rea, he's guilty. Johnboy will be held guilty under the common law under (c) but not (b) because the mistake in (b) is reasonable, whereas the mistake in (c) is unreasonable. If the statute had proscribed "willfully" removing the artifact, however, the question is then (1) whether Cheek and Ratzlaf apply, in which case even an unreasonable mistake would seem to exculpate, or (2) whether "willfully" otherwise connotes a "specific intent" crime, in which case an unreasonable mistake of fact exculpates. Under the MPC, since there is no stated mens rea, the "default" position of "recklessness" applies, and Johnboy's mistake now negates the mens rea, since recklessness requires a conscious disregard of a substantial risk that the shard might be an artifact (which, by hypothesis, he could not entertain if he honestly believes it is plastic). Claims by the Johnboys of the world — that they failed to recognize an object as an "artifact" — have been treated as a mistake of fact, which, if reasonable, will be exculpatory. See United States v. Quarrell, 310 F.3d 664, 184 A.L.R. Fed. 625 (10th Cir. 2002). Closer analysis, however, suggests that even the mistake as to whether the shard was an "artifact" is, at best (or worst), a "legal fact": Johnboy may know that the shard is old, but unless he's a law student, he is unlikely to know that the statute defines how old a shard must be to be an "artifact." Nevertheless, surely the Quarrell court (and others) are right: Congress did not intend to make felons out of casual visitors who pick up items that are not obviously protected. The example shows, moreover, the thin line between mistake of law (which does not exculpate, no matter how reasonable), and mistake of fact (which does exculpate, often even if unreasonable).

Jaden is so frightened by the fire that he suffers a heart attack. Is the cigarette butt a dependent intervening cause or an independent intervening cause?

Adrian may be held liable for Jaden suffering a heart attack. Most jurisdictions consider the victim's preexisting medical conditions as a dependent intervening cause therefore holding the defendant liable for any resulting injuries. However, the lit cigarette could be seen as an independent intervening cause because Adrian could not have foreseen that the spilled gasoline would result in someone having a heart attack.

Bernard, a lawyer, believes that a certain stock will quickly rise in value. He takes several bonds belonging to clients and secures $10,000 from the First National Bank, using the bonds as collateral. He buys the stock, which goes up. He makes a $20,000 profit, pays the bank its $10,000, and returns the bonds. Has Bernard committed any property offense?

As to the bonds, Bernard is not guilty of false pretenses since he never "assumed" title to the bonds. And the possession is not trespassory, unless you consider the constructive possession fiction, which generally required that the employer give the employee the specific property and not merely authority. However, Bernard is guilty of embezzlement; while he didn't take title, he converted the property of which he was lawfully possessed. Even if he didn't personally continue to exercise dominion over the property, his acts were a severe interference with the property rights of the bond owners. As to the bank loan, Bernard is guilty of false pretenses since he took title to the money. Even though he returned the monies and the bonds, this is not relevant. Similarly, Bernard took the monies under false pretenses; that he returned them may mitigate his sentence but not his basic culpability.

Same facts as Example 1c except that after Olga hands Linda the bag, Linda hits the bank guard over the head with her gun to immobilize him. Two days later the guard dies from massive internal bleeding in the brain.

Linda could be convicted under a felony murder/murder charge in most states. Olga also may be in trouble unless this jurisdiction allows the defense of duress to a murder charge, including felony murder. Most jurisdictions would probably allow Olga to use this defense. If not, then Olga might be held liable under the law as an accomplice. The point here is that liability as an accomplice can depend on other legal doctrines such as duress. If the alleged accomplice has a defense in cases where she intentionally rendered aid, then she cannot be held guilty as an accomplice. If that defense fails, however, she then may be convicted as an accomplice. (Note: A really clever defense attorney might argue that Olga did not act with "purpose" to take the money by threat of deadly force. But that evidence may be relevant only to "motive.")

Jim fired nine rounds from an assault-style semi-automatic rifle at the White House from a speeding car about 750 yards from the target — about the maximum effective range for this weapon. One bullet struck a bulletproof window in the first family's residential quarters, cracking it and then falling to the ground outside. Another round was found on the lawn. Unknown to Jim, the president and his wife were out of town at the time. Jim has been charged with attempted assassination of the president. Can he be convicted?

The prosecution would claim that Jim intentionally aimed and fired a high-powered rifle at the White House. One round struck a window in the residential area of the White House. Though stopped by bulletproof glass, these facts clearly demonstrate that Jim intended to fire lethal rounds into a place where the president lives. Surely, Jim intended the natural and probable consequences of his action — killing the President. The jury may infer this intent based on the defendant's conduct. Since Jim intended to accomplish this result, he has the mens rea required by the common law for an attempted murder of the President. Jim also committed the "last act" under his control to achieve this result; there was no longer an opportunity to desist. This easily satisfies the actus reus or conduct element of the crime. Though bulletproof glass prevented the bullet from entering the residential quarters and the intended victim was not physically present, Jim cannot argue factual impossibility. It is not recognized as a defense at common law. Under the MPC, the prosecution can prove that Jim purposely fired several high-powered rounds at the president's living quarters. The prosecution must also prove that the defendant acted with the purpose or belief that his act would cause the proscribed result — the president's death. Jim fired at the White House believing he would kill him. Why else would he use such a powerful weapon and fire so many rounds? Jim also committed a substantial step that strongly corroborates this criminal purpose. He did more than simply possess a deadly weapon near the White House — legally sufficient to prove a substantial step under the MPC. He actually shot the weapon at his intended target. Defense counsel would note that there is no evidence of intent other than Jim's discharge of the weapon at great distance in the general direction of the White House from a speeding car. Though conceding that his client has committed some crime, perhaps unlawful discharge of a weapon, there is insufficient evidence that he intended to kill the president. If anything, his incompetent and inept plan for the shooting indicates a clear absence of this goal. Jim's act was equivocal as to result. At most, Jim committed a reckless act that created a substantial risk that someone might be struck by a bullet from his weapon and could die. But under the common law, attempt requires the prosecution to prove that the defendant intended to achieve that result. Under the MPC, the prosecution must prove that the defendant acted with the purpose or belief that his act would cause this result. Surely Jim did not believe he could kill the president from such a long distance from a speeding car. Nor does his conduct establish that he acted with the criminal purpose or belief as to this result. Though conceding that inherent impossibility is not recognized as a defense under the MPC, the long range, shooting from a speeding car with its inevitable inaccuracy, and the known security of the building, all indicate that Jim did not intend to kill anyone. Rather, this was bizarre behavior that is a less serious crime.

Suppose the reason that Vince took the car was not to go to a racquetball match, but to take his 11-year-old son, who had just cracked his head on a cement floor, to the hospital. Is it larceny now?

This is a trick question. Vince has still committed larceny. Whether his taking of the car is justified such that he will not be convicted, or punished, depends on many other factors. For example, could he have called an ambulance? Could he have hailed a passing car? Was there public transportation?

Despite adverse weather predictions and warnings from several knowledgeable climbers, Edmund Hillary tries to scale K2, a mountain in the Himalayas, with a crew of four. All are tied together, with Hillary at one end. The weather is indeed terrible (even worse than forecast), and the five fall into a crevasse. Hillary cuts the rope that holds three of the other four, and they die.

Under the common law, if Dudley and Stephens is the rule, Hillary would have no defense to a homicide. Even if Dudley is not the clear rule, she has (at least) negligently placed herself in the situation of peril and loses all claim of necessity. Under the Model Penal Code, however, Hillary would have a defense to prosecutions for purposeful and knowing murder, and possibly even reckless murder, but almost surely not for reckless manslaughter or negligent homicide.

Joe is peacefully walking down the street when Jim steps out of an alley, raises his fist and says, "Give me that Rolex or I'll break your nose." Joe quickly reaches into his pocket, pulls out a switchblade and swings at Jim, missing him. Discuss the potential self-defense claims if: (a) Jim pushes Joe lightly, but Joe falls and cracks his skull on the cement; (b) Jim pulls out his own switchblade and stabs Joe, killing him.

(a) Joe had a right to defend himself and his property — but not by the use of deadly force. He may only use force proportionate to that threatened by Jim, and Jim has not threatened death or serious bodily injury. Even though he was the original aggressor, Jim may now respond to Joe's escalation by using equivalent force. Here, he has not used deadly force, but only nondeadly force, which, unhappily, resulted in Joe's death. (b) Even here, Jim has the right to defend himself from the excessive force that Joe attempted by the use of deadly force (the knife). Test this by putting the robbery out of the picture, and assume that Jim "merely" wanted to punch Joe without taking any property. Note that this is not a "withdrawal" question — had Jim threatened deadly force, taken the watch and then left, after which Joe followed him using deadly force, Jim would be entitled to use deadly force only if his departure was an "obvious" withdrawal from the initial fray. But here the question is one of escalation, not of withdrawal.

Lisa, Jane, and Mark learn that Lisa's elderly uncle keeps his life savings under his mattress. They agree to break into his home, kill him, and take the money. Lisa buys a gun and delivers it to Mark. a.Lisa, on the way to meet Mark and Jane at her uncle's home, is overcome by guilt and fond memories of her uncle. She decides she cannot go through with the plan. Instead, she catches a plane to San Francisco. Shortly thereafter, Mark and Jane break into the uncle's house, kill him, and steal his money. b.Lisa meets Mark and Jane at her uncle's house as planned. Overcome by guilt and fond memories of her uncle, she turns to Jane and Mark and says: "I can't go through with this. I want nothing more to do with this crazy idea." She then leaves Mark and Jane who, nonetheless, break into her uncle's house, kill him, and steal his money. c.Overcome by guilt and fond memories while on the way to meet Mark and Jane at her uncle's house, Lisa calls her uncle to warn him of the impending crimes. Unfortunately, his telephone is busy. Mark and Jane break into the uncle's house, kill him, and steal his money. d.Overcome by guilt and fond memories while on the way to meet Mark and Jane at her uncle's house, Lisa calls the police and tells them of the planned crime. The police dispatch a patrol car, which arrives in time to arrest Mark and Jane before they can break into the uncle's house.

9a.The common law. The common law does not recognize the defense of abandonment. Thus, Lisa is guilty of conspiracy. Just as in attempt, a defendant who crosses the "threshold of criminality" cannot go back under the common law. However, the common law does permit a conspirator to withdraw from a conspiracy by clearly indicating to all of her co-conspirators that she is no longer associated with the conspiracy. This communication must be made in a manner that would inform a reasonable person of her intent to withdraw and must be made in time for all co-conspirators to abandon the conspiracy. Because Lisa merely did not show up at the intended crime scene, she did not meet the requirements for withdrawal. She can be convicted of conspiracy and, under the Pinkerton rule, of the target offenses because she did not communicate her withdrawal to all of her co-conspirators in a timely manner. The Model Penal Code. The MPC does permit the defense of renunciation. To be effective, the defendant must have "thwarted the success of the conspiracy" and must have completely and voluntarily renounced the criminal purpose. Lisa has not satisfied either of these two elements. She did not inform her co-conspirators of her firm intention to renounce the conspiracy, nor has she tried to prevent the commission of the target crimes. Thus, she can be convicted of conspiracy. Lisa has also not satisfied the MPC's requirements for withdrawal. She neither advised her co-conspirators of her intention to abandon the conspiracy nor did she inform law enforcement authorities of the conspiracy or her involvement in it. MPC §5.03(7)(c). Thus, Lisa can also be convicted of the substantive offenses. She obtained the murder weapon with the purpose of its being used in the crime. Consequently, she is an accomplice of the target offenses. 9b.The common law. Because the common law does not permit the defense of abandonment, the analysis here results in the same answer as in Example 9a. Lisa can be convicted of conspiracy even though she has communicated her intention not to participate any further in the criminal conduct. However, the common law does permit a co-conspirator to withdraw from a conspiracy, thereby terminating her liability for any crimes committed by her co-conspirators after her withdrawal. Because she has conveyed to all of her co-conspirators her intention to withdraw from the conspiracy in time for them to abandon the target offenses, Lisa will not be responsible under the Pinkerton rule for the subsequent murder, burglary, and theft committed by Mark and Jane. The Model Penal Code. Under the MPC, Lisa has successfully withdrawn from the conspiracy because she has advised all of her co-conspirators that she will have no further involvement in the criminal plan and leaves them. Thus, Lisa is not responsible for crimes committed after her withdrawal. However, Lisa has not met the tough requirements for renunciation under the MPC. She has not thwarted the success of conspiracy as required by §5.03(6). Consequently, she may be convicted of conspiracy but not of the target offenses. 9c.The common law. Under the common law, Lisa cannot abandon the conspiracy; thus, she is guilty of conspiracy. In this hypothetical, Lisa has not communicated to her co-conspirators her firm intention to withdraw from the conspiracy. Thus, her vain attempt to thwart the target offense is of no benefit to her. She can also be convicted of the target offenses. The Model Penal Code. Under the MPC, the result is the same. Lisa neither communicated her intention to withdraw nor thwarted the success of the conspiracy. Too little, too late! 9d.The common law. Again, under the common law, there is no defense of abandonment to conspiracy. Lisa can be convicted of conspiracy. It is not clear that she has withdrawn under the common law because she did not communicate to her co-conspirators her firm intention to withdraw in a timely manner. Timely police intervention prevented Mark and Jane from committing the target offenses; however, depending on the facts, they may have attempted the substantive offenses. Lisa may be responsible for any attempt but not for the target offenses that were not committed. The Model Penal Code. Under the MPC, Lisa has successfully thwarted the commission of the target offenses in a manner that reflects a complete and voluntary renunciation of criminal purpose. Thus, she may succeed in using the defense of renunciation, thus cutting off liability both for the conspiracy and for any attempts.

Marian, a private security guard who is licensed to carry a gun, is off duty enjoying her third glass of Chateau LaFitte Rothschild at the Dew Drop Inn while watching the New York Yankees lose (again) to the Boston Red Sox. She is delighted as A-Rod strikes out for the fourth time in the game. "I always said that no-good (ethnic slur) wasn't worth the money they paid him," she shouts. A patron at the other end of the bar walks up to her and declares, "A-Rod and I are personal friends. No one speaks about him like that when I'm around, particularly some chick. Someday, when you least expect it, I'm going to send you to that ballpark in the sky." He opens his coat, revealing a gun, which he does not touch. Discuss the potential self-defense claims if: a.The stranger starts to walk away, but Marian pulls out her revolver and shoots him dead. b.As the stranger walks away, the bartender says: "Do you know who that was? That's Don Giovanni — the top hit man for the mob. You've got real trouble." Marian runs after Don, who is out the door and 100 feet away, and shoots him dead.

13a.The question raised is whether the threat is "imminent." Given the facts, it is not even debatable that Don's threatened acts are "imminent." Even under the Model Penal Code, it would be hard for Marian to give credence at all to Don's threat, much less believe that it was necessary for her to use force "immediately . . . on the present occasion." Marian's days as a security guard are history. 13b.NOW the threat is actually plausible — if the bartender is correct, Marian might become Don's latest notch. But again, the very words Don uttered make it clear that he was not going to use deadly force now. And his departure from the bar makes it extremely unlikely that he will return. Moreover, Marian could retreat, either by finding another exit, or simply by outwaiting Don. She certainly continued the quarrel by going after him. On the other hand, under the Model Penal Code, Marian may well have feared not only that the threat was real, but that using alternatives (informing the police, for example) would be futile and that this force was necessary in the "immediate" occasion. She would have a claim of self-defense to a charge of murder, but if the jury concluded that her decision was either negligent or reckless, she could be convicted of the corresponding level of homicide.

Adrian, a mechanic, accidently spills gasoline on the shop floor and forgets to clean it up. Jaden, a customer, is walking by and throws his cigarette butt and it lands on the spilled gasoline. The gasoline catches fire causing burns to Jaden. Is the cigarette butt a dependent intervening cause or an independent intervening cause?

Adrian may argue that the lit cigarette was the intervening cause that broke the chain of events between Adrian spilling the gasoline and Jaden's burns. However, Jaden may argue that it would be foreseeable that such a flammable liquid would catch on fire in a mechanic shop, and he received no warning, and therefore the cigarette butt is not an independent intervening cause.

Happy sells Juanita the car above. She knows at the time she buys it, but he does not, that it is a very rare antique auto that, even with a cracked block, is worth $50,000. Has she "stolen" the car and, if so, under what rubric?

Again, since Hennigan wished title to the car to pass, unless Juanita has affirmatively represented that she knows that the car is an "old heap" and repressed her expert qualifications, there are no false pretenses. (Of course, if Hennigan wished to replevin the car, he might have trouble under Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887), the classic contracts case.)

Linky has been plagued with a "passive aggressive personality" and "passive dependent personality" all his life. His dominating and overbearing father has humiliated and embarrassed him since he was a young boy. Finally, at 18, Linky decides to strike back. He pays Frank $500 to steal his father's pride and joy, a 1969 Ford Mustang. Linky calls Frank and meets with him to tell Frank dates and times when his father will be out of town. He also tells Frank to make sure he (Linky) isn't connected to the theft. Linky, empowered and liberated by this assertive act, feels fantastic after paying Frank to steal his father's car. He has finally "fought back." Linky moves out of his father's house, gets a job, and finds a girlfriend. Deciding that he no longer wants his father's car stolen, he telephones Frank and calls it off. Unfortunately, Frank is an undercover police officer. Linky is arrested and charged with conspiracy to steal a car. (This jurisdiction has adopted the unilateral approach to conspiracy. See Chapter 14.) A defense psychiatrist testifies at trial that, at the conscious level, Linky wanted his father's car to be stolen. But what Linky really intended at a subconscious level was to finally take control of his life by acting forcefully against the single overpowering person who had been controlling and dominating his life. The expert concludes that, in reality, Linky did not intend to commit a crime; he intended to obtain his psychological freedom by the act of hiring Frank to commit a crime. The fact that Linky called off the job after obtaining that psychological freedom is proof of what he "actually" intended.

Although Linky suffers from diagnosed psychological disorders, he will not prevail on his insanity defense whether under the M'Naghten or the MPC tests. He understood the nature of the act and that it was wrong. He also could control his behavior as evidenced by his first hiring and then firing Frank to do the job. Linky would also argue "diminished capacity" if this jurisdiction permitted this defense. He would claim that his mental illness prevented him from forming the mental state required for conviction of conspiracy or solicitation. However, mens rea elements like "intent" and "knowledge" do not require awareness of the unconscious influences that may influence a person's decision to commit a crime. They only require awareness of the behavior that constitutes the crime. Put simply, these criminal mental states only require that a person is aware of what he is doing; they do not require awareness of why he may be doing it. Linky has acted purposefully. He intended to come to an agreement with Frank and intended that Frank would commit a crime. Expert evidence on possible psychological reasons why Linky undertook this criminal enterprise will not be admitted under a diminished capacity defense because it is not relevant to the presence or absence of the mental states required for either conspiracy or solicitation. The defense may be able to use this evidence at sentencing.

Amber Bates home-schooled four children, ages 2 to 7. After the birth of each child, Amber became extremely depressed. Diagnosed with a major recurrent depressive disorder, she had to be civilly committed from time to time to prevent her from committing suicide or hurting her children. Nonetheless, Rob, her husband, after each birth pressured her to have another child. For the past several years, Amber has continued to suffer from bouts of serious depression and periodically has had to be hospitalized. Amber was released again from a psychiatric hospital ten days ago at her husband's request. Despairing of her own worth as a mother and convinced that her children would be better off in heaven than in her home, Amber drowned each of her children in the bathtub. She then called the police and said, "Come quickly. I have done something terrible. I have killed my children."

Amber suffers from a serious mental disorder manifested by recurrent episodes of severe depression. At the time of her crime, she experienced an overwhelming sense of sadness and despair. Nonetheless, in a M'Naghten jurisdiction, Amber would probably be convicted of four counts of murder. Though she suffered from a serious mental disorder that clearly affected her mood, she knew what she was doing (killing her children) and that it was against the law and against society's morality. (She called the police and told them that she had done "something terrible" and they should come right away.) Her attorney could argue that "know" must include an emotional appreciation of the wrongfulness of her conduct, but most courts would not agree. Thus, she would probably be convicted in M'Naghten states. (In 2002, a Texas jury using the M'Naghten test convicted Andrea Yates under very similar facts. In a retrial after a successful appeal, another jury acquitted her in 2006. Close case.) Amber has a better chance of succeeding in an MPC jurisdiction. The defense would argue that as a result of her severe depression, clearly a mental disease or defect, Amber's capacity to appreciate the criminality of her conduct was substantially impaired. She might prevail if the jury concluded that "appreciate" included an ability to truly grasp the legal and moral significance of her conduct. On the other hand, since Amber called the police and literally confessed on the telephone, the jury may conclude that Amber understood that killing her children was against the law and social morality and that this basic comprehension is sufficient for criminal responsibility. Amber's ability to control her conduct did not appear impaired. She had to plan how to kill her children and deliberately repeat the homicidal act four times. This seems like a very deliberate choice to act. Despite the greater leeway provided by the MPC test, Amber would probably be convicted of murder. Of course, in the four states that have abolished the insanity defense, Amber would almost certainly be convicted. Her mental disorder does not negate the voluntary act to drown each child or prevent her from acting with purpose. Should Rob be considered an accomplice because he continually pressured her to have more children, knowing the impact that would have on Amber's mood and resulting dangerousness, and also requested Amber's discharge from the hospital? If Amber succeeded in using the insanity defense, should the criminal law hold Rob responsible as the last responsible human agent? Is it morally just to convict Amber?

A college student, Bryan, was the sole lifetime beneficiary under a large trust administered by Paul. Bryan received a large monthly distribution from the trust, and whenever he ran short, he simply called Paul for extra money, because the trust provided that Bryan was to receive whatever he needed. Bryan's roommate, Anthony, found out about the trust arrangement and decided to see if he could make it pay off for him. Anthony sent an email to Paul, which appeared to be from Bryan, and which asked for several thousand dollars to cover medical expenses. The email further stated that, since he was in the hospital, Bryan would send Anthony to pick up the money. The next day, Anthony showed up at Paul's office and received the money on the promise that he would take it to Bryan in the hospital. The roommate left town with the funds. What offense?

Anthony committed larceny by trick because Paul's consent to Anthony's taking of trust money was induced by the misrepresentation that Anthony would take the money to Bryan. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property. If the person in possession of property has not consented to the taking of it by the defendant, the taking is trespassory. However, if the victim consents to the defendant's taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid. This type of larceny is larceny by trick. Here, the roommate obtained the money from the banker on the promise that he would take it to Bryan. This misrepresentation induced Paul to give possession of the money to Anthony. Anthony then proceeded to take the money and carry it away, intending all the while to permanently deprive Bryan of the money. Thus, all of the elements of larceny are satisfied. In this case, Paul intended only to convey possession of the money to Anthony so that he could give the money to Bryan. Paul did not intend to convey title. Because Anthony did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed.

On her way to the grocery store, but several blocks before she gets there, Ashley trips and falls, the gun discharging and killing a pedestrian. Is this murder?

Ashley may be liable because she killed a pedestrian as she was on her way to commit a robbery. This, however, stretches the limits of the duration doctrine, since the danger here comes simply from Ashley's carrying a weapon; the robbery has not yet "begun" in that sense. That is, suppose that Ashley were not intending to rob the store, but merely carrying an illegal gun, and killed a pedestrian in the same way, because of tripping. Is carrying the gun in a public place sufficiently dangerous to warrant murder liability when the gun unexpectedly discharges? Moreover, Ashley's accidental discharge of the weapon was clearly not in furtherance of the robbery. If her jurisdiction has this agency requirement, she will likely escape liability for felony murder.

Maria Rodriguez owns a holiday condominium in Kansas City. She stays at the condo periodically and keeps her irreplaceable collection of twelfth- and thirteenth-century Mayan and Aztec jewelry from Latin America there. Last year, two attempts were made to break in; they almost succeeded. The condo cannot be made more resistant to break-ins and the jewelry cannot be insured. One night, Maria wakes up and hears someone in the kitchen. She grabs the .38 pistol under her pillow, quietly enters the kitchen, and shoots the intruder, killing him. Was Maria's use of deadly force lawful?

As an occupant in lawful possession of a dwelling, Maria may use deadly force against an aggressor only if she reasonably believes he intends to commit a felony against person or property therein. The difficulty here is that there are no facts indicating what the dead aggressor intended once inside. The defense will argue that a homeowner should not have to make further inquiry to ascertain the intruder's intentions because that would only put Maria at greater disadvantage and increase her danger. Moreover, it is reasonable to infer that the intruder had a felonious purpose in mind when entering Maria's condo. Though this is a close case, a jury would probably find Maria was justified in using deadly force to defend herself and her dwelling from the intruder. The MPC takes substantially the same approach as the common law. Maria would have to persuade the jury that she reasonably believed the aggressor was committing a serious crime or that, without recourse to deadly force, she risked serious bodily injury. Again, the jury would probably agree with her. Under recently enacted "castle laws," Maria would have a much stronger case of self-defense. These laws effectively presume that an intruder who forcibly and unlawfully enters a residence intends to kill or do great bodily injury to anyone inside. Residents are presumed to have a reasonable fear for their lives and can use deadly force in self-defense without any duty to retreat. Shoot, Maria! Shoot!

Bo is drinking heavily in a bar. He meets Amanda, who also is drinking, and they dance and drink for several hours. Bo asks her if she would like to come to his apartment. Amanda readily agrees. At his apartment, they have several more drinks. Then . . . a.Bo undresses Amanda and is about to have intercourse with her when she begins screaming. An off-duty police officer, hearing her cry, bursts through the door and arrests Bo for assault with intent to rape Amanda. b.Same facts except the police officer does not hear Amanda's scream until after Bo has sexual intercourse with Amanda. He bursts through the door and arrests Bo for rape. c.Bo starts to undress Amanda, intending to have sex with her. Sometime later, he is awakened by an off-duty police officer who bursts through the door and arrests him for attempting to rape Amanda. Bo denies he ever initiated sexual intercourse, claiming he had passed out. Can Bo introduce evidence of his voluntary intoxication?

Because assault with intent to rape is a "specific intent" crime, later common law would allow Bo to introduce evidence of his drinking throughout the evening to prove that he thought Amanda had consented to have sexual intercourse with him. If believed by the jury, Bo would not be convicted of "assault with intent to rape" because his voluntary intoxication prevented him from acting with the "specific intent" of raping Amanda. He did not intend to have sexual intercourse with a female without her consent. He might be charged with a lesser included offense like assault, however, if it is one of "general intent." The MPC would also allow Bo to present evidence of his voluntary intoxication that is logically relevant to negating any element of the charged offense. Thus, if the statute required that he "knowinglyhave intercourse without consent," evidence of his voluntary intoxication may negate "knowingly." If, however, a rape statute in this jurisdiction made recklessness with regard to consent an element of the crime, the MPC would not permit Bo to use this evidence to negate such recklessness. By drinking so much, Bo decreased his ability to evaluate the risk that Amanda did not consent. The act of drinking is sufficiently blameworthy to satisfy the requirement of recklessness in the rape statute. In many jurisdictions, rape is considered a "general intent" offense. Thus, the common law would not allow Bo to introduce evidence of voluntary intoxication to negate the mens rea of rape. This may seem unfair to the defendant (though not to the victim who has been subjected to unwanted intercourse). After all, Bo's mental state was the same in both Examples 1a and 1b. Though influenced by the alcohol, Bo thought Amanda had consented to sexual intercourse in both cases. Yet, simply because a court has decided rape is a "general intent" crime, he will not be allowed to introduce evidence of voluntary intoxication in Example 1b. Under the MPC, however, the analysis is essentially the same as in Example 1a. Bo could introduce this evidence if it tended to negate any element of the charged crime. If the rape statute requires the defendant to have acted intentionally, purposefully, or knowingly with respect to any element, then this evidence is admissible. 1c.Bo could introduce this evidence under both the common law and the MPC. The common law would let him argue that the evidence established he could not physically have performed the act of intercourse because he was unconscious. Likewise, the MPC would let him introduce the evidence because it is relevant to an "element" of the charged offense. He would argue that he could not, and therefore did not, engage in the voluntary act of sexual intercourse.

Same facts, but Bernard leaves an envelope, to be opened in a week if he does not return the money and bonds, explaining his whole scheme and asking for forgiveness. He actually returns both items. What offense?

Bernard is still guilty of the crimes above. Although he hoped that he would be able to return the items, he took a serious risk that the owners of each of the items, respectively, would lose them. This is sufficient for liability.

Brenda commutes 30 minutes to work every day. For the past year, the only freeway leading to her destination has been under construction, to her great dismay. Large signs notifying drivers of the construction — and the accompanying 45-mile speed limit — are displayed miles in advance. One morning, Brenda is running very late for work. She grabs her morning thermos of coffee, dashes into her car, and speeds off. As she approaches the construction on the freeway, the roads are relatively clear. Staring at the clock, she speeds through the construction zone at 90 miles an hour. Suddenly, Brenda spills steaming hot coffee on her legs and subsequently loses control of the wheel. She barrels into the construction zone, injuring several construction workers and killing one. Brenda later learns that in her jurisdiction, driving 40 miles or more over than the speed limit is a felony. Is Brenda liable for felony murder?

Brenda's actions fall within the standard common-law definition of felony murder (i.e., a death occurred during the course of a felony). However, we then must examine whether any exceptions to the rule may give Brenda relief from liability. Brenda's strongest argument would be that the death certainly was not "in furtherance" of the felony. If Brenda's jurisdiction places this restriction on felony murder, then Brenda will likely escape liability. Brenda may also argue that the felony of speeding is not "inherently dangerous," and so cannot be the basis of a felony murder charge. The strength of this argument will undoubtedly rely on the way the court defines "dangerous" — in the abstract or as perpetrated. The circumstances of Brenda's crime — specifically, speeding at such a high rate through a construction zone, where it is known that construction workers will be vulnerable — would likely be deemed inherently dangerous. Therefore, Brenda's best hope is if the court examines dangerousness in the abstract. She will argue that people speed on a regular basis and that, statistically, few incidents of speeding actually result in a crash or death. The prosecutor will counter that the court should not examine the dangerousness of speeding generally, but specifically speeding at rates over 40 miles per hour over the speed limit. Certainly, such reckless driving is inherently dangerous even in the abstract. The answer to this question is simple under the MPC. Since the predicate felony of speeding is not under the category of robbery, rape, arson, burglary, kidnapping, or felonious escape, Brenda would not be liable for felony murder.

Cedric is a veteran. While serving in the Marines, he was sent to Afghanistan where he witnessed combat. He has been out of the Corp. for five years but suffers from PTSD due to the experiences he had overseas. Cedric's PTSD manifests in numerous symptoms, including insomnia, headaches, depression, and extreme irritability. Cedric sees Dr. Fenton, a therapist who specializes in treating veterans with PTSD, to help with his mental illness. Despite having no family or partner, Cedric has established a good support system in place. His best friend Rodger joined the Marines with him. Cedric gave Rodger a key to his apartment. One night, Rodger has been drinking and instead of driving home, he goes to Cedric's apartment close by, as he has done on multiple occasions before, even though Cedric has asked him not to due to Cedric's sleeping troubles. Before he goes to sleep on Cedric's couch, Rodger goes through the bedroom where Cedric is sleeping to get to the bathroom. Unknown to Rodger, Cedric is awake after not sleeping for two days. Enraged and deliriously sleep-deprived, Cedric hurriedly reaches for the revolver in the drawer of the nightstand next to his bed and shoots Rodger twice in the head. Cedric is charged with first degree murder. Cedric's lawyer moves to have expert testimony admitted to show that Cedric suffered from a mental illness. Analyze the issues.

Cedric's defense attorney will argue that expert testimony on Cedric's PTSD should be admitted because it relates to Cedric's state of mind. Specifically, the defense will argue that the expert testimony will show that Cedric did not act with premeditation due to his PTSD. The evidence will not likely show that Cedric is blameless — after all, Cedric knew that killing Rodger was wrong, but because of his PTSD and lack of sleep, he was not in a position to control his anger. The expert testimony will show the emotional distress Cedric was suffering and possibly demonstrate that he should be charged with a lesser homicide, one mitigated by "extreme emotional distress." If the jurisdiction uses the MPC for the insanity defense, the prosecution may make an argument similar to the one made in the Example 1.

Dani and Jon recently went through an ugly break-up. Before they met, Dani had adopted three pugs, one of which had died — a fact that had been instrumental in Dani and Jon getting together. While they were together, Jon developed a strong affection for Rhaegal, the bigger of the two remaining pugs, but when he and Dani split up, Dani refused to let him visit Rhaegal. One day while Dani was away, Jon broke into her apartment. As Jon sneaked down the hall he was suddenly struck by a dart from Dani's mechanical, home-defense device that flings darts at intruders. Fortunately, he had kept close to the wall and a single dart had struck his shoulder, causing only a flesh wound. Had he been closer to the middle of the hallway, the darts would have struck him in the chest, almost certainly killing him. Jon finally found and took Rhaegal. While walking to his car, Dani drove up and started yelling at him, but he jumped in his car and sped away. Dani followed Jon to his apartment and into his front room. Jon kept yelling for her to leave. Dani refused and attempted to retrieve Rhaegal from Jon. He moved away to stop her, so Dani sprayed her pepper spray in Jon's face. As Jon writhed on the floor, clawing at his face furiously, Dani left with Rhaegal. Discuss.

Dani will probably be charged with assault for setting up the dart trap that injured Jon. Under the common law, setting up automatic mechanical devices that seriously injure or kill intruders or emergency responders indiscriminately is illegal. In some jurisdictions, the use of nondeadly devices is permitted so long as there is a warning. The dart trap likely does not fall into that category since Jon likely would have died if he had not been hugging the wall and had been hit with the full force of the darts in a more vulnerable part of his body. There was no warning — such was the purpose of the device, after all: to catch an intruder unaware. Thus, Dani will not be able to assert defense against property for her assault against Jon via the dart trap. Many jurisdictions do not permit a defense of property defense where other lawful means of protecting the property are available. Under this rule, Dani probably acted criminally by following Jon home and trespassing on his property to retrieve the pug (under the law, pets are considered property). Instead of following Jon to his apartment, trespassing and assaulting him, Dani could have contacted the police to have Rhaegal returned to her. If the jurisdiction has adopted the MPC, Dani may fare better. The MPC permits a party to enter another's land to retrieve her personal property if it has been stolen. The party must be in fresh pursuit OR obtaining a court order to enter would impose an exceptional hardship on her. Here, Dani was in fresh pursuit, following Jon from the "scene of the crime" to his apartment where she immediately followed him into his apartment. She likely satisfies the MPC here; however, the remaining question is whether her use of force was lawful. The MPC permits the use of force if the party tells the other to stop (unless that would give rise to a risk of substantial harm to the property). Dani had yelled at Jon to not take Rhaegal when she drove up. She likely satisfies this requirement. The second requirement under the MPC is that the party not use force if she knows it would cause serious bodily injury. Dani could argue that the use of pepper spray against Jon, while painful, did not cause serious bodily injury to him.

Quincy is mowing his lawn one day when his neighbor, Ralph, comes over, shovel in hand. "Your dog has ruined my azaleas again, Quincy," he shouts, and swings the shovel madly at Quincy. Quincy drops the mower, grabs a pitchfork, and kills Ralph.

Even in a jurisdiction that requires retreat, Quincy is on his own property, thereby apparently nullifying the requirement. Some courts, however, have restricted the "castle" exception to the house. Since Quincy is not in his house, he might lose the exception. If he could have ducked into the house, he may be required to do so in these jurisdictions. If Ralph had not swung the shovel at Quincy, we would have the issue of whether Ralph intended to hurt Quincy (as opposed to his dog) and also whether Quincy's perception that Ralph was threatening him was reasonable. See the next example.

Afraid to leave her invaluable jewelry at the condo without effective protection, Maria wants to use a deadly cobra snake as a "watch dog." She would place it in a very secure box that could be released electronically only if a door or window to her condo is opened. Advise Maria.

Hopefully, you immediately told Maria that she may be criminally liable for using a deadly cobra as a mechanical watch dog. Neither the common law nor the MPC authorizes the use of deadly devices to defend property, including a dwelling. The fact that this deadly device is also defending extremely valuable personal property does not make a difference. Human life, even that of a criminal, is considered more valuable than property. Thus, tell Maria to immediately take her killer cobra back to the pet store for a refund. Otherwise, she may be charged with a serious crime such as homicide or assault if the cobra is released during a break-in. You might also point out that her slinky sleuth also presents serious risk to innocent people like firefighters or caretakers who might be forced to enter the condo in an emergency.

Gottfried is driving to Pittsburgh in a car that has failed to pass environmental and safety inspection four times. In the middle of this drive, he stops at a rest stop. As he gets back into the car, Himmelfarb, an escaped convict, comes up, points a gun to his head, and says, "Drive to Pittsburgh." Gottfried complies. He is charged with (1) driving an unsafe car; (2) assisting Himmelfarb's escape.

If Gottfried were charged with aiding Himmelfarb's escape, he could easily claim duress (or necessity). He has been threatened with serious bodily harm or death, he has no route of escape, and his choice to drive the car is clearly the lesser of the two evils. But what if he is charged with driving an unsafe vehicle? It is not clear that Himmelfarb's threat induced him to drive to Pittsburgh; he was already on the way. Moreover, even if that were not a problem, it is not clear that duress or necessity could be used as a claim in what may be a strict liability crime. If it goes to mens rea, duress is probably not allowable since strict liability offenses do not require mens rea.

Lucky bets on the horses. Lucky bets on the dogs. Lucky bets on football games. Lucky bets on everything — and usually loses! Lucky is a compulsive gambler, unable to stop his excessive and destructive betting. In fact, he has been diagnosed with "pathological gambling disorder," a disorder of impulse control recognized in 1980 by the mental health professions in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. These individuals have an overwhelming urge to gamble, and their compulsive gambling disrupts their family and work life. They always think the next bet is the "grand slam" that will finally put them ahead. Lucky knows. He owes his bookie so much that he secretly embezzled money from his job to place the grand slam bet. When he lost again, he wore a mask and robbed a bank to get money for his next bet. Arrested shortly thereafter, Lucky is charged with gambling, embezzling, and armed robbery. Can he plead insanity?

In a M'Naghten jurisdiction, Lucky is out of luck. There is no evidence that he did not know what he was doing when he embezzled from his employer or robbed the bank, or that he did not know that these actions were wrong. To avoid apprehension, he tried to keep these crimes secret or his identity unknown. Thus, he would not succeed with a M'Naghten insanity defense. In a jurisdiction that used the MPC test, Lucky just might get lucky. He suffers from "pathological gambling disorder." This impulse-control disorder substantially interferes with Lucky's capacity to "conform his conduct to the requirements of the law." Thus, he might be successful in using the MPC insanity defense to all charges, including not only the gambling charge, which is a "symptom" of his disorder, but also the other two charges involving crimes against property and persons committed to support his compulsive conduct.55 Defendants with a diagnosis of compulsive gambling have successfully used the MPC insanity defense to a charge of writing bad checks56 and to a charge of first-degree larceny.57 Other defendants have used the defense to charges like forgery, embezzlement, and armed bank robbery.58 Some were successful; others were not.

Lem, aged 6, Ben, aged 7, and Jamal, aged 9, enter a neighbor's house to steal a tricycle while the parents are shopping. While in the house, Lem seeks out Matt, a 6-month-old baby, lying in a crib. He drags Matt out of the crib and drops him on the floor. He then kicks him repeatedly in the stomach and head, inflicting very serious injuries. He and the other two boys flee the house with the tricycle when they hear Gabriel, the 13-year-old babysitter, waking up from a nap in the bedroom. Gabriel sees Lem leaving Matt's bedroom. Matt is taken to the hospital where he is on life-support systems for several weeks. He eventually recovers but suffers serious long-term brain damage. The prosecutor has witnesses who will testify that Lem had threatened to kill Matt because he did not like "the way Matt's parents look at me." Gabriel will also testify that, shortly after the incident, Lem threatened to burn down Gabriel's house if she told the police about seeing Lem in Matt's house that day. Can the prosecutor charge Lem with aggravated assault and have him tried in an adult court? Or must Lem be tried in the juvenile justice system?

In most states Lem could not be held criminally responsible for his attack on Matt. Because he was 6 years old at the time of the crime, Lem would be conclusively presumed incapable of committing a crime. Lem could probably be tried as a juvenile offender; he could not be tried and convicted as an adult for a criminal offense. Some states, however, do not set any minimum age of responsibility. Instead, they permit the prosecutor to introduce evidence that the defendant knew what he was doing and that it was wrong. Here the prosecutor might be able to prove that Lem had a motive to commit the crime and that the attack on Matt was premeditated and intentional. Moreover, Gabriel's testimony might also establish that Lem knew that his behavior was wrong. By threatening Gabriel, Lem was trying to avoid detection. This indicates that Lem knew that attacking Matt was wrong. Lem might be tried for attempted murder in the first degree, subject to the juvenile court's jurisdiction in this state. Whether Ben and Jamal can be tried and convicted for burglary and theft of the tricycle will be decided by the same analysis. Because Ben was 7 and Jamal was 9 when they went into Matt's house and stole the tricycle, it is more likely that the prosecutor would be able to try both as adults. If successful in persuading a court that any of these young children should be tried as adult offenders, the prosecutor would also have to persuade the court that the defendants are competent to stand trial.71 She would have to show that they understand the charges against them and the nature of the proceedings and that they could assist their attorneys. Under the Model Penal Code, all of the defendants would have a valid defense of "immaturity" because they were under 16 years old at the time of the crime. Thus, none of the defendants could be tried and convicted of any crime. Instead, they would be dealt with in the juvenile court system.

Daniel roamed the streets of a major city with his wife, Jean, preaching to the homeless about the necessity of joining God's new tribe on earth for eternal salvation. Daniel, diagnosed with schizophrenia, paranoid type, believed that God spoke to him directly, commanding him to take young brides and create God's new tribe here on earth. Jean, who was devoutly religious but did not suffer from any mental disorder, sincerely believed that Daniel was God's chosen instrument for salvation here on earth. Together, they forcibly and secretly took 15-year-old Sarah from her family late one night and took her to their apartment to begin God's new tribe.

In states that allow the defense of insanity, Daniel might be found not guilty by reason of insanity. At the time of the crime, he suffered from a serious mental disorder characterized by delusional beliefs and auditory hallucinations. He may honestly have believed that God had commanded him to take Sarah as his wife by whatever means necessary. Under the M'Naghten test, Daniel, as a result of his mental disorder, may not have known the nature of his act (he thought that he was simply taking a new wife) or that it was wrong (God does not command someone to do anything that is a crime or morally wrong). Under the ALI test, Daniel could also argue that he had no choice but to follow God's orders; thus, as a result of a mental disorder, he suffered from a significant volitional impairment. However, in states that have abolished the insanity defense, Daniel would not be allowed to raise this defense. Evidence of his mental illness would be relevant only to actus reus and mens rea. His lawyer would argue that Daniel understood his conduct to be taking a new wife. The prosecutor would disagree, pointing out that Daniel surely knew and intended to take a young girl from her family and bring her to his home without consent. That is why he did it secretly and used force. Thus, Daniel should be convicted of kidnapping. Jean's devout religious beliefs do not amount to a mental disorder. Thus, her "motive" for aiding and abetting Daniel would not be relevant to guilt or innocence but would be considered at sentencing.

Gary and Cindy are college students who have been best friends since middle school. Gary is generally aware that Cindy has a peanut allergy; she is always careful to mention such at restaurants and to friends who make her any sort of food. However, Gary has never seen Cindy actually ingest peanuts and is clueless as to the severity of her allergy. Having mild allergies himself, Gary is sure that peanuts would simply give Cindy a rash, or a case of the hives at worst. Gary and Cindy are also huge jokesters and are always playing pranks on each other. One day, Gary decides to make Cindy a sandwich laced with a hint of peanut butter. He chuckles in his head as he imagines her confusion when she begins to feel itchy. Not wanting to cause serious discomfort to Cindy, he even stocks up on antihistamine medication. Unfortunately, Cindy's reaction is much worse than expected. Her throat constricts and, unable to find her epinephrine injector, she dies before Gary can find help. Is Gary guilty of manslaughter?

It is unlikely that Gary would be liable for voluntary manslaughter under the common law. Gary clearly did not intend any serious harm or death to come to Cindy, so he had no "depraved mind." But Gary may be liable for involuntary manslaughter if a jury finds that he was reckless or criminally negligent. Gary's liability will depend on the reasonable person standard that the jury applies — and to what extent they take into account Gary's specific characteristics. The prosecutor will argue that a reasonable person should have known the risks of exposing someone to a known allergen — including the risk of death. Gary was well aware of Cindy's peanut allergy for years, and exploited this knowledge for his own entertainment. Gary will argue that a reasonable person in his shoes would have no reason to suspect that Cindy could die from exposure to peanuts, given that he had never seen such a reaction from her before and was never informed of the severity of her allergy. The analysis would be similar under the MPC, except we could more quickly dismiss the argument that Gary acted recklessly. As previously discussed, recklessness requires that an actor subjectively recognize the risk of death; here Gary did not have this subjective understanding.

Jason, who lives with his father and stepmother, is 22 years old and has suffered from schizophrenia for several years. Jason comes in and out of touch with reality. Often he does not recognize where he is, what day it is, or who is around him. In addition, he is deeply religious and reads the Bible often. He has been committed to the state psychiatric hospital on several occasions because of his irrational, delusional, and frightening behavior, though he has never actually harmed anyone. a.One day, he is sure he sees the Devil come into his bedroom to take away his soul. In fact, his stepmother has come into his bedroom and simply asked him to go to the store for her. Jason, fearing for his salvation, grabs the Devil by the throat and strangles him until he no longer moves. A few hours later, his father comes home and discovers his wife dead on the floor and Jason praying. Jason looks up and says, "I have just slain the Devil." He returns to his prayers. Presently, Jason is in touch with reality after taking psychotropic drugs. He is horrified by what he did because he loved his stepmother very much. He understands in general terms what a trial is, the role of the various participants, and what he is charged with. When asked about this event, however, Jason only remembers attacking the Devil, who was trying to take away his soul. b.One day, Jason hears the voice of God commanding him to slay his stepmother because she is in league with the Devil and must be destroyed as evil incarnate. Even though he knows that killing a human being is against the law, Jason obeys the divine command and strangles his stepmother to death, exclaiming, "Hallelujah, Lord!" throughout the episode. c.One day, Jason decides, based on his reading of the Bible, that his stepmother is a religious heretic who, according to his reading of scripture, must die for her sins. Jason strangles his stepmother to death. Is the insanity defense available in any of these examples?

Jason suffers from a serious mental disorder, schizophrenia, which causes significant distortions in perception and thinking. His medical history provides persuasive evidence of his long-standing illness. Jason is competent to stand trial. He understands the nature of the charges and has a present ability to consult with his attorney with a reasonable degree of rational understanding. Though his factual recall is obviously incorrect in some important ways, he can recall what he thought he was doing and why he was doing it. A trial judge is likely to find Jason competent to stand trial on the murder charge. This is a REALLY DIFFICULT case! It is not clear that the government can prove the mens rea of murder beyond a reasonable doubt. After all, Jason may not have intended to kill another human being.Rather, as a result of mental illness, he may honestly have believed he was killing "the Devil." Thus, the prosecutor's only alternative may be to seek involuntary civil commitment of Jason to a mental health facility where he will be confined and receive treatment until he is no longer mentally ill or dangerous. If the jury does find the mens rea and actus reus of murder, then whether the state has an insanity defense becomes important. Under the M'Naghten test, Jason would be found not guilty by reason of insanity. As a result of his mental illness, Jason did not, at the time of the crime, understand the nature of his act, let alone that it was wrong. He actually perceived himself to be slaying the Devil. Because he did not realize he was killing a human being, there was no reason for him even to consider if what he was doing might be against the law or morally wrong. On the contrary, Jason undoubtedly thought he was doing the right thing. Punishing Jason will not deter others like him nor has he earned punishment by choosing to do a wrongful act. Jason will be confined in a secure mental health facility until he is no longer mentally ill or dangerous. Under the MPC test, Jason would also be found NGRI. As a result of mental disease or defect, Jason lacked substantial capacity either to appreciate that his conduct was wrong or to obey the law by not killing someone he thought was the Devil. Again, most purposes of punishment would not be served by convicting Jason. In a GBMI state, the jury could simply find Jason "guilty but mentally ill" rather than insane. This verdict establishes that the defendant committed a voluntary act with the required mens rea or culpability. In most states, the verdict has no significance. The defendant may be sentenced to prison for the maximum term and even sentenced to death for a capital offense. In a few states he will automatically be evaluated to see if he needs treatment. If he does, he may be sent to a mental health facility for treatment, and minimum sentences may be waived under certain circumstances. Because some of these outcomes may be possible in states that have adopted the GBMI defense in many of the following examples, we will not repeat them for the rest of this section of Examples and Explanations. 1b.Though suffering from a serious mental illness, Jason knows that he is killing his stepmother. He also knows that killing another human being is against the law. In a number of jurisdictions, Jason would be held responsible for his acts and found guilty if he knew that his conduct was against the law. Some utilitarians would support this result, arguing that, because he knew he would be punished, Jason (and those like him) are deterrable. Some retributivists might argue that Jason chose to break the law and thus deserves his punishment. Other jurisdictions permit a divine command exception and will not punish a mentally ill person who commits a harmful act thinking he is obeying a command from God. Not only is such person's ability to know in a relevant way disturbed; they may even be acting under duress. After all, one does not disobey a command from God lightly! Some utilitarians would agree that many disturbed individuals would do what they thought God told them to do, regardless of the criminal law. Thus, it is very difficult to change their behavior even by a threat of incarceration. Some retributivists would also agree, concluding that these unfortunate individuals simply do not have the necessary ability to make a rational moral choice and, therefore, do not deserve punishment. In the few states that have abolished the insanity defense, the only issues to be litigated at trial are the defendant's actus reus and mens rea. The defendant's mental illness might be relevant to his mens rea at the time of the crime. It will not be admitted to establish a claim of legal insanity. 1c.This is a more difficult case. In many ways, Jason is very much as he was in Examples 1a and 1b. However, in this example, his acts are based on a delusional religious belief system; he does not act because of a divine command. Some jurisdictions would permit conviction in this case, even though it is not clear whether Jason is deterrable or has made a meaningful choice to do wrong.

Lloyd, a car mechanic, fixed Bobby's car, for which Bobby has yet to pay him. Bobby has removed the car from Lloyd's garage. One day, Lloyd spots Bobby's new thoroughbred dog. He picks up the dog and sells it to the nearest Poodle Palace, netting $500, which he applies toward Bobby's bill. What crime has Lloyd committed?

Lloyd is probably not guilty of larceny under the common law for two reasons. First, dogs are "base animals" and cannot be the subject of larceny. Just as important, however, Lloyd has a "claim of right" against Bobby's property. While Lloyd probably does not, under law, have a lien against Bobby's dog, any belief, however unreasonable, that he does so "negates" Lloyd's specific intent (animus furandi) and exculpates him from larceny liability. The MPC abolishes the "base animals" limitation of the common law, but it continues the "claim of right" defense. However, under the wording of the Code, the defendant must have an "honest claim of right to the property or service involved." If Lloyd had taken Bobby's car and sold it, the Code would clearly exculpate. But it is not clear whether the claim of right can exist against "equivalent" property. However, the commentary would strongly suggest that an honest belief that he can take any property, not just the original property involved in generating the belief, would exculpate.

Mike Douglas, after a particularly hard day at the office, is driving home when he is caught in a traffic jam in mid-August. His air conditioning is out. He has been sitting in 106°F weather for one hour with no relief in sight. Just as he sees an opportunity to take an off-ramp, another car, driven by Donny DeVito, cuts him off. Furious and frustrated, Douglas shoots DeVito. Is Mike a murderer?

Most of us have been frustrated by such cutoffs, losses of parking spaces, and so on. Indeed, the phenomenon described here has become so common that, in both England and the United States, it has a label: "road rage." Under the common law, this is an easy case. Unless DeVito's car has hit Douglas's car (arguably the equivalent of battery), there is no adequate legal provocation. Thus, although Douglas is really irate, there is no reduction. This is also the likely result under the Model Penal Code. Even if there is "extreme" mental or emotional disturbance, it is probably not due to a "reasonable explanation" (but the question is closer). Still, no reported case reduces the killing from murder to manslaughter. Since the late 1990s, a wide variety of "rages" have been proffered by defendants to reduce homicide liability. Recall the "air flight rage" situation when a passenger, incensed about a delay in landing, attacked (fortunately nonfatally) an airline attendant. Or the "hockey rage" father who, apparently upset by what he considered to be "rough play" in his son's hockey practice, killed the person he thought was encouraging the aggressive play. (During the trial, the defendant claimed self-defense, not rage, but the episode is unfortunately typical of hotheaded parents at Little League games.) After the (involuntary manslaughter) verdict, the victim's son said the defendant "just lost it," and told the defendant, "I don't hate you. I forgive you." See N.Y. Times, Jan. 12, 2002. Again, this sentiment reflects the tension in these cases. People (mostly men?) do "lose it" at times; should they be convicted of murder, or are they less culpable than a "depraved heart" killer? Can the criminal law change behavior patterns, both of the actual defendants and others, by punishing those who do not train themselves not to "lose it"?

Heather is not a police informant. Two days later, Penelope reaches Rachel, her supplier, and tells Rachel: "My friend and I want to purchase a large amount of cocaine on credit in order to sell it at retail." Rachel, having earned her undergraduate degree in economics at a famous midwestern urban school, is always looking to expand her market share. She decides this is a great idea and tells Penelope she will furnish Penelope with two kilos on credit and that Penelope can get another two kilos from her under the same terms after Penelope has paid for the first two kilos. The next day, Rachel delivers the cocaine to Penelope's apartment after telling Penelope how much she owes and when she expects both Penelope and "her friend" to repay her. Over the next two weeks Penelope sells most of the cocaine in five separate sales while Heather is away on vacation. Unfortunately for Penelope, the last sale she makes is to Pat, an undercover police officer. Pat tries to arrest Penelope, who pulls a gun and shoots and wounds Pat. Other officers arrive almost immediately and subdue and arrest Penelope. Heather, Penelope, and Rachel are all arrested. The prosecutor charges all three of them with a single conspiracy, four counts of selling drugs, one count of an attempted sale, and one count of assaulting a police officer while in performance of her duties. Heather and Rachel's lawyers object. How many conspiracies are there and who are parties? What charges can be brought as a result of Penelope's shooting Pat, the federal undercover police officer?

Number of conspiracies and parties. Rachel, the supplier, will argue that she agreed to sell cocaine to Penelope and did so. Thus, in her view she can be convicted only of the sale, not of agreeing to sell. She will claim that Wharton's rule precludes her conviction when the participation of two parties is necessary to commit the crime (as in the sale of drugs that require a seller and a buyer). The government will respond that, even if Wharton's rule might normally apply, Rachel knew that there was a third party involved because Penelope told her about her friend. Thus, the third-party exception would defeat Wharton's rule, and Rachel can be convicted for both the prior criminal agreement and committing the crime that is the object of that agreement. The government will also argue that this is a "chain" conspiracy. Though Rachel did not know who Penelope's friend was, she knew there was a friend who would help sell the cocaine and be jointly responsible for paying for it. Thus, she knew the essential elements of the scheme. Finally, the government will argue that Rachel had a "stake in Heather's and Penelope's venture" to sell crack cocaine because Rachel sold the drugs on credit and also entered into an ongoing business relationship, promising to sell additional drugs on the same favorable terms. Unless Heather and Penelope succeeded in selling the cocaine, Rachel might not get paid. The government will probably succeed in charging and proving a single conspiracy. If it does, then Rachel is responsible under the Pinkerton rule for all of the retail sales Penelope made because they were foreseeable crimes. Heather is also responsible for these sales under the Pinkerton rule even though she was on vacation when Penelope made the sales and did not aid and abet those crimes. The Pinkerton rule effectively attributes criminal responsibility for foreseeable crimes in furtherance of the conspiracy committed by other co-conspirators without requiring proof that would satisfy the elements of accomplice liability. The MPC focuses on each individual and analyzes with whom each agreed and to what purpose. The government might still succeed in establishing that this is a single conspiracy with three parties. Heather did not know who Rachel was, but she did know that Penelope had a friend who would supply the cocaine on credit. Thus, Heather has arguably authorized Penelope to enter into an agreement with Rachel on her behalf. Likewise, Rachel knows that Penelope has a "friend" (though she does not know her identity) and that the friend will help Penelope sell the drugs and be responsible for paying for them. Unlike the Pinkerton rule, however, both Rachel and Heather might not be responsible under the MPC for the five retail sales that Penelope made since the government will have a difficult time establishing the elements of accomplice liability (especially "purpose" rather than "knowledge") as required by the MPC. The assault on Pat. Penelope is clearly guilty of assaulting Pat, an undercover police officer, while in the performance of her duties. The more difficult question is whether Heather and Rachel can be charged with this crime by virtue of being co-conspirators with Penelope. On these facts, neither Heather nor Rachel expressly agreed that Penelope should use deadly force if necessary to resist arrest. Nor is there any indication that Heather or Rachel knew, or should have known, that Penelope was armed or would use deadly force to resist arrest. The amount and value of the cocaine involved in the sale were not large. Neither Heather nor Rachel was present during the sale or played a major role in the attempted sale. Thus, it is unlikely that a jury would conclude that, under these circumstances, Heather or Rachel should have foreseen that Penelope would use deadly force to resist arrest.

At lunch in a bar, Joe, an undercover cop, inquired if Sam could sell him some cocaine. Sam said he would call his suppliers and made several telephone calls. Sam then told Joe he would have a pound of cocaine to sell him at the same bar at 6:00 p.m. that evening. He instructed Joe to return alone at that time with cash. Joe agreed and left the bar. While picking up cocaine from his supplier, Sam was told of a rumor that the FBI was in town with undercover agents trying to set up cocaine buys. Sam gave the cocaine back to his supplier and did not go back to the bar that evening. Sam was arrested three days later and charged with attempted sale of drugs.

Sam has the mens rea necessary for conviction of the target offense because he has the purpose of selling drugs to Joe. Under the common law, Sam has not taken the last step (though Sam has actually located and bought the drugs, he still must return to the bar to complete the sale). It is also not clear that he has satisfied the proximity test; he is not close in space or time to bringing the drugs to the bar where the sale to Joe would take place. However, his conduct probably satisfies the probable desistance test and, arguably, even the equivocality test, because locating and buying illegal drugs are not consistent with innocent behavior. Thus, under some common law tests, Sam has committed an attempt. Under others, he has not and his conduct is still only preparation. Under the MPC, Sam has probably taken a substantial step and has committed an attempt. He actually located a supplier and arranged to pick up and pay for the drugs that he would resell to Joe. This demonstrates that Sam is firm about committing the crime.20 Sam might argue, however, that he never came close to actually selling the drugs to Joe. In addition, Sam might argue that, even if he did commit an attempt, he subsequently renounced his plans. The first defense is essentially a denial that he committed the necessary actus reus; it would probably not succeed under some tests. The second defense does not satisfy the elements of renunciation because the only reason Sam decided not to complete the crime is the rumor that Joe might be an undercover officer. Sam has not changed his mind for the right reasons and is simply waiting for a better opportunity.

Same facts except that, in her anxiety over missing the game, Marie simply does not find the latent defect at all.

Since Marie did not see the defect, she was not reckless; she did not subjectively perceive and disregard a risk. This is involuntary manslaughter under common law, and, at worst, "negligent homicide" under the Code. Under the Code, the question is whether her failure to see the defect is a "gross" deviation from what a reasonable electrician would see (if not pressured by the big game).

Yesterday, Terrence wrote a program that would penetrate Sallie Mae's website security system and obtained the remote access telephone number that would provide him entry into the site. Now?

Terrence's mens rea is the same as in Example 7a. Under the common law, he has probably not satisfied the following tests: last step, equivocality, or probable desistance. However, the facts are stronger for the prosecution than in Example 7a. Terrence would argue that even though he has assembled the "tools and instruments" necessary for committing the crimes on his computer and the computer would be used to carry them out, this location may not be sufficiently "near" the crime scene. However, the prosecutor might argue that Terrence custom-designed his "hacking" program to commit these crimes and that the program has no lawful use. Thus, under the MPC, he has committed a "substantial step." Ultimately, the jury must determine if this conduct "strongly corroborates a criminal purpose."

Alvin tells Van Cliburn (a famous concert pianist) that unless Van helps him extort money from Sylvia, Alvin will break his fingers so that Cliburn can never play the piano again. Van helps Alvin and is charged as an accomplice.

There are two issues here. First, is this "serious bodily harm"? If not, then under the common law, which only allowed the claim if the threat was one of "serious bodily harm or death," a claim of duress would not be viable. Bodily injury is a risk but what is the meaning of the word "serious"? (This doesn't mean that broken fingers don't hurt, but if the word means anything, surely this is a dubious application.) Under the MPC, however, the threat need only be "unlawful force." Second, if we assume that this is serious bodily harm, would a person of "reasonable firmness" have resisted the threat and accepted the broken fingers? This is obviously a difficult question. That is what juries are for. Assume, however, that a jury would conclude that a "usual" person would prefer broken fingers to having Sylvia suffer extortion. What, then, of the Model Penal Code's restriction that the defendant's "situation" must be considered? Is the fact that Van Cliburn is a concert pianist whose career will be ended part of his "situation"? Again, the issue is difficult. And we can make it more difficult. Assume, for the moment, that a concert pianist of reasonable firmness would not help the extortion. Or change the threat to Sylvia from extortion to rape. How does one balance these interests and assess these threats and interests?

"Sharkie" specializes in lending money at illegal interest rates to individuals with terrible credit records. He tells Thug, one of his collection agents, to "do what you have to do to collect the money from Sam but, remember, I want my money." Thug, not being terribly bright, uses his fists a bit too liberally on Sam trying to persuade Sam to pay the money he owes Sharkie. Sam dies from the beating.

Thug is surely guilty of homicide, either "serious bodily injury" murder or manslaughter in the first or second degree. But is Sharkie also guilty as an accomplice? Sharkie did not want Sam killed because Sam's death means Sharkie will not get his money back. Thus, Sharkie did not intend that Thug engage in the criminal action that caused Sam's death. Because Sharkie did not have this necessary mens rea, many jurisdictions, including those that follow the MPC, would not convict Sharkie as an accomplice to Thug's crime of manslaughter. Some courts, however, are now holding the accomplice responsible for crimes committed by the principal if P's crime was reasonably foreseeable or if A has set in motion a chain of events and P's crime was a "natural and probable result" of this chain. In these jurisdictions, Sharkie might be convicted as an accomplice to Thug's crime of manslaughter.

Enrico and Mario are employees of Brinks Armored cars. They have just picked up $1,000,000 in cash when Aloysius approaches Enrico and says, "I've got your child, Christopho. Put the money in this bag now, or else Georgina will kill him." Enrico starts putting the money in the bag. Mario, who cannot escape, but who also is not directly threatened by Aloysius, helps Enrico. Enrico and Mario are later charged with robbery. What result?

Under the very early common law, Enrico might not have a defense of duress, which required that the threat be made against him, not even a close relative. But under "modern" common law, that claim is extended to include at least threats against family members. Mario would not fare so well — only in a Model Penal Code jurisdiction, which allows a threat of bodily harm against any person, even unrelated persons, would he have a real chance of a successful claim.

One fine October day, Napoleon, an avid hunter, goes hunting for deer. An animal scurries across the path, and Nappy, in a flash, shoots. He discovers that he has killed a rabbit, which prohibits negligently killing a rabbit in this jurisdiction. Just at that moment, Odie, the friendly game warden, appears and arrests him. Nappy is prosecuted for killing the rabbit. Mens Rea?

Here, the problem is the same under the common law and the Code: Does "negligently" require tortious, or criminal, negligence? Most courts required "culpable" negligence, but in most instances, those decisions involved homicides (of people, not rabbits). Moreover, since only "reasonable" mistakes of fact exculpated when there was no mens rea word (see below), some courts in nonhomicide cases concluded that "tortious negligence" could suffice here. Under the MPC, the resolution of this question is clear: Nappy's acts must constitute a "gross" departure from the conduct of an RPP. Mere tortious negligence is insufficient. Of course, trying to distinguish between "tort" and "gross" negligence is not easy, but the prosecutor could try. In addition to the facts suggested in 3b, the prosecutor would try to prove, for example, that the papers were full of stories about the influx of rabbits and that rabbits are easy to spot because of their white tails.

Jack and Jill's supervisor, John Schmidlap, who was not present at the time, is also charged with selling adulterated food. Is John Schmidlap guilty?

Jack and Jill could have a cellmate, John. Even if John wasn't present in the building, he may be held on a vicarious strict liability basis, even if the punishment is incarceration (except in an MPC state or those states that have held vicarious liability involving imprisonment to be unconstitutional).

Karen learns that her worst enemy, Rick, is coming to town in two days. She buys a gun and decides to kill Rick as he steps off the train. Two days later, she takes the gun with her to the station, loads it there, and walks up to Rick and shoots him at point-blank range in the head five times, killing him instantly. What level of homicide?

Karen intended to kill, and thus, under the common law, has "malice aforethought" and a "depraved mind" (not to mention heart). She is thus guilty of at least second-degree murder. The jury may readily find that she premeditated the event, deliberated and mulled it over, and then willfully killed. She is thus guilty not merely of murder but of first-degree murder. Under the Model Penal Code, Karen has acted "purposely" and is therefore guilty of murder.

Harold Homeowner wishes to avoid another sultry summer by installing an air conditioner in his study. He installs one and is then prosecuted for not having obtained a building permit. He claims he did not know, and could not reasonably have known, of the requirement for a permit. Will he succeed in this defense?

No. Harold's ignorance of the law is no excuse. Even in a day and age when there are literally thousands of city regulations and ordinances that govern our lives and with which we cannot possibly be familiar, the ignorantia lex doctrine lives on. These are also examples of strict liability crimes that are discussed later in the book. The same result holds under the Model Penal Code, so long as there is no potential jail time (see Chapter 6).

Roro, a member of an ethnic group trying to secede from a foreign country, inadvertently overheard several of his friends finalizing their plan to board a plane belonging to the national airline of their country later that evening with bomb material hidden in their clothing. At a predetermined time, they would assemble the bomb in the plane's toilet and trigger an explosion, causing the airplane to crash and killing many people. He knew in his heart they were deadly serious and would carry out their plan. Although he had not been involved in any way and learned of the plan accidentally, Roro did not report what he had heard to the police. His friends successfully carried out their plan. When interviewed by the police afterward, Roro told them everything he had heard about their plan. Actus Reus?

Roro's failure to tell the police what he had learned is clearly an omission, one that allowed his friends to cause the loss of many innocent lives. But does his failure to warn law enforcement authorities trigger criminal responsibility? The prosecutor would argue that Roro was under a legal duty to prevent this tragedy because of the incredible magnitude of the harm planned and because Roro could prevent it with no risk to himself (he could have called the police anonymously). The defense would argue that Roro is not a co-conspirator (see Chapter 13) nor an accomplice (see Chapter 14) and there is no civil duty to report crimes planned by others. There can be no criminal responsibility for an omission unless there is a legal duty to act to prevent the harm. An individual is personally responsible only for the harm he causes; generally, he is under no obligation to prevent others from committing crimes. Only a duty to act imposed by civil law could provide adequate notice to Roro and others that failure to act in such situations carries the threat of criminal sanction. Without a duty in civil law, an individual cannot be held criminally responsible for doing nothing. Roro's failure to interrupt human causal forces already at work is morally reprehensible and indefensible. But it is unlikely that he could be convicted of any crime. In states with Good Samaritan laws, which require individuals to prevent harm if they can do so with no risk, Roro could be convicted of a crime. But his punishment would be extremely light (a modest fine and perhaps a six-month sentence) given the number of people who die as a result of his inaction. Should the law criminal be used as an instrument to induce people to do the right thing when the stakes are so high?

Geraldo is waiting for a bus one day when he sees a four-year-old boy nearby, walking on the sidewalk. He instantly pushes the boy off the sidewalk into the path of an oncoming car (which Geraldo saw), killing him. Is this murder? What level?

There is little argument that Geraldo's actions would not satisfy at least second-degree murder under the common law. He purposely pushed the boy into the path of the car that he clearly saw coming, demonstrating malice aforethought. Also recall that the common law presumes that Geraldo intended the "natural and probable consequences of his act." So, the bulk of our concern will be whether there was the requisite premeditation to elevate Geraldo's charges to first-degree murder. It is unlikely that the legislature intended such a killing to fall within the term "premeditated." But it is precisely because this term fails to capture such killers that nineteenth-century American courts often declared that juries could conclude that a person premeditated "in an instant." See, e.g., People v. Waters,118 Mich. App. 176 (1982), in which the defendant, a youth armed with a gun, became annoyed with the victim's husband. He fired his gun into the victim's car once and then, within five seconds, but with both hands on the pistol, fired the gun a second time, killing the victim. The trial court found premeditation, which was upheld on appeal. Caveat. Merely because the jury could find premeditation does not mean it must. And mere time alone, in the absence of other factors, may not be sufficient even to allow a jury finding of premeditation. Thus, in State v. Bingham, 105 Wash. 2d 820 (1986), the defendant spent five minutes strangling his victim. The (very divided) court, however, said that there was no other evidence of premeditation, and that "time alone," without more, would not support such a finding. As already noted, the Model Penal Code eliminates the concept of "premeditation" precisely because of these ambiguities. The Code's formulation is significantly more helpful here. A jury could easily find "purpose" or "recklessness under circumstances manifesting extreme indifference to the value of human life." Whether the death penalty would then be imposed would depend on a series of factors rather than merely one.

Because Aaron had suffered through too many sleepless nights, his doctor prescribed Ambien, a top-selling prescription sleeping pill. He took the drug just before going to bed, as prescribed. At 3:00 a.m. that morning, Aaron was arrested for driving an automobile in the wrong lane while impaired. He had no recollection of awaking from a deep sleep, let alone driving a car. Recent studies show that Ambien increasingly is involved in similar impaired-driving cases. Drivers have no recollection of getting into their cars and driving them. Does Aaron have a viable defense?

Aaron would argue that he was "sleepwalking" while driving, through no fault of his own. The drug's label warns that it can, on very rare occasion, cause sleepwalking as a side effect, and experts have seen such cases. Nonetheless, Aaron had no reason to believe that the drug would affect him that way. Thus, he would claim that he did not engage in the voluntary conduct of driving a car because he did not consciously decide to get into his automobile, start it, and operate it on a public road. The prosecutor would claim that Aaron was faking, falsely using the drug as an "alibi" for his criminal act, or that, even if Aaron was sleepwalking, he was responsible for inducing this condition. If you were the prosecutor, would you dismiss the charge, insist on a guilty plea with a light penalty, or prosecute to the full extent of the law?

One fine October day, Napoleon, an avid hunter, goes hunting for deer. An animal scurries across the path, and Nappy, in a flash, shoots. He discovers that he has killed a rabbit, which is prohibited in this jurisdiction. Just at that moment, Odie, the friendly game warden, appears and arrests him. Nappy is prosecuted for recklessly killing the rabbit. Mens Rea?

Again, we have to know what was going on in Nappy's mind, and what was reasonable for him to believe, depending on the language of the statute in this jurisdiction. One consideration here is whether the factual circumstances might have alerted a "reasonable person" that she was shooting a rabbit. Another way to think about it is whether the defendant himself, with all his foibles, weaknesses, and incapacities, was consciously aware of a substantial and unjustifiable risk that what he was shooting was a rabbit. If not, he was not reckless, under either the common law or the MPC. Caveat. The problems of proof go both ways here. If the prosecutor shows that the area was infested with rabbits, that there was only one deer, that deer are much larger than rabbits, that Nappy had plenty of time to see the animal, and so forth, the jury might not credit Nappy's statements as to his ignorance. But they cannot convict him on the basis of what an RPP would have figured out; they must be convinced that he really knew the risk.

While driving along the highway with Tara in the passenger seat, Jennifer spotted Bob, her fiancé, several car lengths ahead of her. She sped up to wave at him. Bob, recognizing Jennifer in the car behind him, waited until she almost caught up to him and then sped away. Jennifer then increased her speed so she could catch up to Bob once more. Again, Bob, laughing, waited until Jennifer almost caught up and then increased his speed even more. This game of "cat and mouse" continued until suddenly Jennifer, traveling well above the speed limit, lost control and hit a tree. Tara died instantly. Jennifer and Bob are both charged with homicide. Did Bob cause Tara's death?

At common law, Jennifer is both the cause in fact and the proximate cause of Tara's death. Jennifer can easily be convicted of vehicular homicide. The MPC would reach the same conclusion. Jennifer's driving is the "but for" cause of Tara's death. The analysis then turns to the culpability required under the relevant statute. Most vehicular homicide statutes require recklessness. The prosecutor should be able to prove that, while driving the car, Jennifer acted with conscious disregard toward a substantial and unjustifiable risk of a fatal car accident. Moreover, the victim was the very same person whom she put at risk and the actual result, Tara's death, was the very same risk that she contemplated. Bob, by initiating and continuing to play car tag, satisfies the common law's cause in fact requirement. He might argue that Jennifer's driving is the only cause in fact; had she not driven recklessly, the accident would not have happened. Nonetheless, his conduct will probably be found also to have been a proximate cause of Tara's death. (Remember that there can be more than one proximate cause.) Thus, both Jennifer and Bob have legally caused Tara's death. Jennifer's response to Bob's game of car tag is foreseeable because Bob knew she would continue to speed to catch him. Thus, it was foreseeable that either he or Jennifer might lose control of their respective vehicles and cause someone's death. Note that the foreseeability analysis here does not depend on what Bob subjectively expected or contemplated. Rather, it depends on what human experience indicates can happen. At common law, proximate causation is not dependent on the actor's subjective awareness of risk or probable consequences. Under the MPC, Bob's driving satisfies the "but for" requirement of §2.03(1)(a). The analysis then focuses on the culpability required in the relevant statute. The prosecutor could establish that Bob acted with conscious disregard toward a substantial and unjustifiable risk that either he or Jennifer might lose control of their respective cars, resulting in a fatal accident. The actual outcome is the same as the contemplated outcome, and the result is not "too remote or accidental" as to justly blame Bob.

Suppose, instead, that the snake is a cobra, but that even before it can bite Romero, he has that same coronary. Murder this time?

Much more likely this time. Tom clearly had a "person-endangering state of mind," and a "malignant heart," which would support at least a second degree murder charge under the common law. And Romero's death was clearly caused by Tom's action, even if the result didn't come about quite the way Tom had envisioned (see Chapter 7 on causation). Under the MPC, Tom's behavior would likely constitute murder for the same reason. His actions show at least an extreme indifference to the value of human life, given the immense risk of mortal injury from a cobra bite.

In 2009, the Obama Administration announced that it would not criminally charge CIA and military officers who had arguably tortured detainees in Guantánamo Bay and Iraq. The relevant statute, 18 U.S.C. §2340, defines torture as an "act . . . specifically intended to inflict severe physical or mental pain or suffering." The Administration gave several different reasons — either the actions were not torture under international or domestic law or the actual interrogators had relied on opinions from the Department of Justice's Office of Legal Counsel (OLC) assuring them that the methods they were using were not illegal. That memorandum, signed in 2002, declared: "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. . . . We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent." Was OLC correct?

It is true that if the interrogators did not intend to inflict severe harm, the statute was not violated. But if they did intend to inflict pain, but thought their doing so was legal, then their mistake of law would be a defense only if the statute required specific intent to violate the law, that is, if the statute was either interpreted as were the statutes in Cheek and Ratzlaf (which required "willfulness," a word which is not present in this statute), or the statute was otherwise interpreted to require specific intent to violate a "known legal duty."

Patricia wore her black leather jacket to school. During recess she accidentally put on a similar looking jacket that, unknown to her, had a gun in its pocket. a.Just as Patricia finished putting on the jacket, a school security officer noticed the gun protruding from the jacket Patricia was wearing. He took Patricia immediately to the principal's office where the gun was removed. Patricia was charged with possession of a gun on school premises, a strict liability offense that has no mens rea element. b.Feeling a hard object in her pocket, Patricia put her hand into the pocket and found a pistol. For the next ten minutes she walked around the school looking for someone who might have put her coat on by mistake so they could exchange jackets. A school security officer noticed the gun protruding from the jacket Patricia was wearing. He took Patricia immediately to the principal's office where the gun was removed. Patricia was charged with criminal possession of a gun on school premises, a strict liability offense that has no mens rea element. Actus Reus?

14a.In the first example, Patricia does not know or have reason to know that the jacket she has mistakenly put on has a weapon in it. Thus, in most states her physical possession is not a voluntary act, and she cannot be convicted of the charged offense, even if it is a strict liability offense. 14b.The second example is more difficult. Though Patricia does not know there is a gun in the jacket when she first puts it on, she soon realizes that a weapon is located in the jacket pocket. At this point Patricia is under a legal duty to terminate her possession within a reasonable time; failure to do so may lead to a possession charge. Patricia would argue that she was trying to terminate her possession by attempting to locate the original owner. The prosecution may argue that Patricia should have immediately removed the jacket or gone to school authorities to turn in the weapon. A conviction on these facts is possible.

In Stephen King's book Misery, an obsessive fan of a mystery writer nurses him back to health when he is injured in an automobile accident. When he informs her that he intends to leave her house, she smashes his legs with a sledge hammer. If she is prosecuted in a common law jurisdiction for (1) assault with intent to kill or (2) aggravated assault, defined as "assault with a deadly weapon, inflicting great harm," is she guilty of either offense?

Because the common law required a "specific intent" when a statute used the words "with intent to," the defendant will not be guilty, assuming she can convince the jury that her intent was only to make sure that the writer remained in her house. On the other hand, aggravated assault, which may carry an even greater penalty, does not use the term "with intent to," and is likely to be construed as a general intent crime, requiring only that the defendant intended to assault, and knowing that she was using a sledge hammer (assuming that the sledge hammer is a "deadly weapon" within the meaning of the statute, which it almost surely is).

Joe Camel, president of Federated Tobacco, recently testified before a congressional committee that cigarette smoking is not addictive and that there is no evidence scientifically establishing that smoking causes cancer. Rusty Lunchpail, a lifelong smoker of cigarettes made by Federated, died recently of lung cancer. On his deathbed Rusty swore in a videotaped deposition that he knew cigarette smoking was harmful to his health, but that he could not break the habit. Billy Jackson, a crusading prosecutor from Mississippi, has indicted Federated and Joe Camel, as its president, for murder in connection with the death of Rusty Lunchpail. Billy can prove that the United States Surgeon General has publicly warned that smoking cigarettes is harmful to human health and that nicotine, a primary ingredient in cigarette tobacco, does create a physiological craving for its continued consumption. He also has a witness who will testify that Federated carefully monitored the amount of nicotine in its cigarettes and always blended in sufficient amounts of nicotine-rich tobacco to ensure that its cigarettes contained at least a specified amount of nicotine. Finally, he can prove that Joe Camel knew nicotine was addictive.

Billy Jackson will argue that selling cigarettes to Rusty was the cause in fact and the proximate cause of his death. Billy will claim that Joe Camel knew cigarettes are dangerous to human health and that many smokers cannot break their "habit." Joe will respond that the available evidence does not establish that lung cancer is a foreseeable result of smoking cigarettes. Moreover, Joe will maintain that Rusty was forewarned about any possible health risk and that, consequently, Rusty's decision to smoke and to continue smoking broke any causal chain that Federated may have put in motion by selling cigarettes. This is a hard case. If the jury finds that lung cancer is a natural and probable result of smoking cigarettes and that nicotine is physically addictive, making it difficult for individuals to discontinue smoking, it might find that Federated and its president caused Rusty's death and return a homicide verdict. In Commonwealth v. Feinberg, 433 Pa. 558, 253 A.2d 636 (1969), the defendant, who stocked and sold regular-strength Sterno (which contains methanol) to alcoholics on skid row, was convicted of 32 counts of manslaughter after selling industrial-strength Sterno, which contains a much higher percentage of methanol, to customers who then drank the product. The Pennsylvania Supreme Court held that the voluntary acts of the victims, though considered contributory negligence in a tort action, were not independent supervening causes in the criminal case.

Quincy was convicted in state court of child molestation in 1992, and became subject to the state's Sexual Offender Registration Act (SORA). In 2008, as a result of the economic downturn, he lost his job and then his house. For four months he was homeless. He then found another job, and moved into an apartment. Two months later he was arrested and charged with violating SORA, which requires "[w]ithin 48 hours after any change in the offender's permanent or temporary residence . . . the offender shall report in person to a driver's license office." Failure to register is a felony. Quincy requested a jury instruction that the state must show that he knowingly or recklessly did not register, but Bryan, the prosecutor, objected on the ground that this was a public welfare, strict liability statute. The trial judge rejected Quincy's request and Quincy was sentenced to 6.5 years in prison. What result on appeal?

Even if the state's suggestion that Quincy is "in the business" of offending, he had registered with SORA before and certainly "should" or "might" have been informed of his duty to inform the state of his movements. Moreover, the argument that the state is merely "regulating" this "business" is clever. But the Florida Supreme Court rejected these contentions, pointing out that the penalty for non-registration was severe (particularly in contrast to that in Lambert). State v. Giorgetti, 868 So. 2d 512 (Fla. 2004). Nice try, Bryan.

Ansel Jefferson, CEO of Green Energy, Inc., is an ardent environmentalist and conservationist. While building his new company headquarters, Ansel became aware that it was on the flight path of robins, which migrated past this spot every year. He sought the advice of the best engineers and environmental groups to assure that the birds would not fly into the building. At a cost of over $5,000,000, the building was oriented away from the flight path and made as apparent to birds as possible. One dark and stormy night, however, Hurricane Adams blows three robins and a Canadian goose into the windows, and they are all killed. The goose is significantly off-course; the ferocity of the winds had essentially blinded him to his route. Ansel is prosecuted for the violation of the Migratory Bird Treaty Act, 16 U.S.C. §703, which makes it a misdemeanor to "pursue, hunt, take, capture, kill, attempt to take, capture" a protected bird (which a Canadian goose is, but a robin is not). Ansel argues that (1) he has been "super cautious" and that (2) it was totally unforeseeable that a Canadian goose would be injured by his building. Assume that actus reus is established. What result?

First, note that the MBTA provision appears to be mala prohibitum — i.e., a regulatory crime — rather than a mala in se, or inherently bad, crime. This fact would weigh in favor of an argument for imposing strict liability. Also in favor of strict liability are the facts that Jefferson's crime violated a material element of the law and that the law is a misdemeanor, likely carrying a light sentence or fine. Moreover, the prosecution will argue that environmental law and the protection of endangered animals involves a highly complex regulatory scheme, which favors imposition of strict liability. Jefferson's only argument against imposing strict liability is that he was an innocent actor, similar to the Liparota case discussed above. Jefferson spent millions of dollars to take every precaution to protect the endangered birds from his building. Arguably, he succeeded, since the only reason the birds flew into his building were because they were thrown off course by unusually high winds. Surely, this makes Jefferson "morally innocent." If Jefferson can successfully make this argument, he will likely be off the hook. What result in real life? The MBTA has been the subject of much litigation, and even more law review analysis. The misdemeanor provision has been consistently interpreted as imposing strict liability, on the premise that it is an environmental statute which could be easily evaded if the government were required to prove any level of mens rea. See Kalyani Robbins, Paved with Good Intentions: The Fate of Strict Liability Under the Migratory Bird Treaty Act, 42 Envtl. L. 579 (2012). In strict liability, foreseeability and great care are both irrelevant. The harms are the only issue. But there are two glimmers of hope for Ansel: First, over 30 years ago, the court in United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978) actually foresaw (in dictum) the possibility that birds might fly into buildings and suggested that the owners should not be liable for such unforeseeable deaths. But that's only dictum. Second, the court in United States v. Apollo Energies, 611 F.3d 679 (10th Cir. 2010), embraced a notion of proximate cause that supplements (or replaces) strict criminal liability. See Alex Arensberg, Are Migratory Birds Extending Environmental Criminal Liability?, 38 Ecology L.Q. 427 (2011). (Wind turbines now kill between 5,000 and 275,000 birds each year.) (at fn. 115). But as the law stands now in most circuits, Ansel's going to pay a fine and possibly go to jail for a year. On the other hand, the MBTA was amended to include a felony offense as well; that provision has been interpreted to require mens rea.

Ian was jealous of his coworker Craig, who had been promoted over Ian by Otto, their boss. Otto was obsessively possessive and jealous of his wife, Mona. Ian knew that Otto had a reputation for violent outbreaks when he suspected his wife of cheating. He also knew that Otto had been convicted several times for beating Mona for alleged flirting and for assaulting the men he erroneously believed were involved with Mona. Hoping that Otto would kill Craig, Ian sent an anonymous e-mail message to Otto telling him that Mona was having an affair with Craig. Ian made up scandalous details to make Otto furious. Otto flew into a rage and wanted revenge.27 a.Otto went straight to Craig's office and shot him dead. b.When Otto got home, he shot and killed Mona in a rage of jealousy before she could deny the accusations. c.When Otto found out that Mona in fact had not had an affair with Craig, Otto was devastated and killed himself.

The Death of Craig. Ian acted with premeditated intent to cause Craig's death. This satisfies the mens rea requirement for first-degree homicide. But did Ian cause Craig's death? Otto — not Ian — shot and killed Craig. Under the common law, Otto is the "cause in fact" (direct cause) of Craig's death. Should the law look beyond the last human actor and moral agent to establish causation? The prosecution will argue in the affirmative, claiming that Ian proximately caused Craig's death. Ian's conduct satisfies both requirements of proximate cause: but for causation and foreseeability. Otto would not have killed Craig unless Ian had sent the e-mail that incited Otto's predictable rage and violence. The prosecutor will insist that Otto's killing of Craig was the "natural and probable consequence" of Ian's conduct. Because Otto's jealous rage and violence were foreseeable, his shooting Craig does not break the chain of causal connection between Ian's e-mail and the subsequent harm. Thus, Otto's conduct was a dependent intervening factor because it was expected and integral to bringing about Craig's death. Ian preyed on Otto's insecurity, jealousy, and fury with the actual purpose of causing Otto to kill Craig; logically, he should not now claim that Otto's actions were unforeseeable. The defense will claim that jealousy and anger do not preclude moral choice and intentional conduct. Thus, the law cannot look beyond Otto as the legally relevant cause of Craig's death. Thus, Otto is an independent intervening cause of Craig's death. Under MPC analysis, Ian may also have caused Craig's death. Under §2.03, Ian satisfies the "but for" requirement of §2.03(1)(a). Under §2.03(2)(a), the result that occurred is precisely the same result as that purposed by Ian. Thus, Ian has caused the result — Craig's death. If Ian is found to have proximately caused Craig's death, the defense might argue that Otto acted in the heat of passion and can be convicted only of manslaughter. Ian would then claim that accomplice liability limits his responsibility to the same crime committed by Otto, his principal. Depending on the law of complicity in this jurisdiction, this argument might succeed.28 As a matter of causation, however, the question is simply whether Otto's intervening act was foreseeable; if it was, then it is a dependent intervening cause that does not preclude Ian's being held responsible. 14b.The Death of Mona. Ian's responsibility for the killing of Mona is harder to establish. Ian did not intend to cause Mona's death. But if Ian had not sent the e-mail, Otto would not have been incited to kill Mona. Because Ian knew that Otto was extremely jealous and violent when Mona's fidelity was questioned, a strong argument can be made that Ian acted recklessly (with gross and callous disregard of the risk that Otto might also kill Mona) or negligently (he should have known of the substantial and unjustifiable risk that Otto might kill Mona). These mental states satisfy the respective mens rea requirements of manslaughter. But has Ian caused Mona's death? The pivotal question now is whether it was foreseeable that Otto would kill Mona. The prosecutor would argue that, because Ian knew that Otto's prior violent outbreaks were sometimes directed at Mona, it was even more foreseeable that Otto might harm Mona rather than Craig, her alleged lover. Thus, the jury could find that Otto's homicidal act was a dependent intervening cause, which will not defeat a finding of proximate causation. Note that foreseeability is an objective test; it does not depend on what Ian actually did anticipate would happen. Instead, it depends on what a jury determines about Ian's moral culpability and its sense of justice in this case. Clearly, Ian did not expect that Mona would die as a result of his actions, but a jury could find that, nonetheless, her death was foreseeable. It could also find that Ian acted with recklessness or negligence with respect to that result. That determination would reduce the severity of the crime to manslaughter rather than murder. Under the MPC, this is a more difficult problem. Ian did not intend or contemplate Mona's death. But did a different harm occur than that intended? Not really; Mona was killed rather than Craig. Thus, Mona's death is not a case of "transferred intent," and §2.03(2)(a) probably does not apply. More likely, §2.03(2)(b) applies. Mona's death is the same kind of harm as that intended by Ian, and because Ian knew of Otto's past jealous violence against Mona, Otto's killing her (instead of Craig) is not "too remote or accidental in its occurrence to have a just bearing" on Ian's liability. 14c.The Death of Otto. Although moral theory might hold Ian responsible for Otto's suicide, legally he is not culpable. The suicide will probably be considered as an independent intervening causation that breaks the causal chain of events from Ian's e-mail to Otto's death. Ian never intended Otto's death, nor did anything in Otto's history suggest that he might turn his jealous rage into violence against himself. Thus, Ian will argue this risk was not foreseeable. Under the MPC, the analysis is the same as for Mona's death in (14b) above. However, because Ian had no reason to anticipate that Otto might take his own life, a jury would probably conclude that this harm is "too remote or accidental in its occurrence" to hold Ian responsible. This is essentially a value judgment for the jury to make.

Mike, a 25-year-old man, is out at a 21-and-over bar with some friends. He meets and begins talking to a girl named Jenna. At one point in the night, Jenna has her driver's license out and Mike notices they were born in the same year. When he mentions this, Jenna confirms that she is 25. At the end of the night, Jenna invites Mike back to her apartment, where they engage in consensual sexual acts. Eventually, Mike learns that Jenna is actually a 17-year-old high school student who regularly goes to bars using her fake ID. "Her" apartment is actually her older sister's apartment, which she uses when her sister is out of town. Mike is arrested for statutory rape, which criminalizes an adult engaging in any sexual acts with a minor under the age of 18. Mike argues that he sincerely believed — based on the facts that Jenna was in a bar, had an ID that showed she was 25, and seemed to have her own apartment — that Jenna was an adult. What result?

The first thing you would examine in this case is the statutory language of the offense. Statutory rape is "commonly defined as requiring no culpability as to the offender's sexual partner being underage."25 In other words, it is often designated a strict liability crime by statute. It is unclear what the statute in Mike's jurisdiction says, however, so we must look to other indicia that the crime should or should not be construed as having strict liability. The most common and convincing argument would be that statutory rape is a public welfare offense. Undoubtedly, there is strong public policy in favor of protecting youth in society from sexual predators. Making statutory rape a strict liability crime would prevent predators from claiming they were mistaken of their victims' ages. However, such a strong position by nature will make arguably innocent actors culpable of a serious crime. Mike, for example, seemed to have acted in the most prudent way possible; all signs seemed to point to Jenna being of age. The Model Penal Code seems to take the middle road on this issue. While most crimes in the MPC are not strict liability crimes, §213.6(1) instructs that, in the context of rape, "[w]henever . . . the criminality of conduct depends on a child's age . . . to be older than 10, it is not defense that the actor did not know the child's age, or reasonably believed the child to be older than 10." This effectively makes statutory rape of a child under 10 a strict liability crime. Since Jenna was 17, it seems, the crime would not be strict liability in an MPC jurisdiction.

On a dark and rainy night, Harvey, driving a pickup truck, is unable to stop and runs through a stop sign. His truck hits Matilda, killing her. He is charged with "motor vehicle homicide," which carries a maximum sentence of one year and a substantial fine. At trial, the prosecutor argues that he need not even prove that John was negligent — the crime is one of strict liability. What result?

In State v. Perina, 282 Neb. 463 (2011), the Court held that motor vehicle homicide was a public welfare offense not requiring mens rea. The court relied heavily on Morrissette's observation that crimes "derived from" the common law often required mens rea but concluded that because this statute had no common law roots, Morrissette's presumption of mens rea did not apply. Remember, too, that this is the opinion where Justice Jackson spoke so eloquently about the usual need for mens rea (see page 65). The Nebraska court also noted, however, that the crime was a misdemeanor, rather than a felony — which is a significant distinction. Other courts have reached similar conclusions. See, e.g., State v. Wojahn, 204 Or. 84 (1955); Haxforth v. State, 117 Idaho 189 (1990). Under the Code, it's easy — any jail time requires the state to prove at least (criminal negligence) and recklessness unless negligence is stated.

Jorge had a running feud with his Orlando neighbor, Julio. For several weeks, Jorge had complained to local authorities that Julio consistently placed four garbage cans out for collection every week, when only two were allowed. Julio, upset by Jorge's actions, went to his front door and knocked loudly. Jorge opened the door. Julio yelled at Jorge to "mind his own business." Jorge said, "Go to hell!" and started to close the door. Julio put his foot in the door and tried to open it. Jorge shot Julio with a pistol, wounding him. Did Jorge assault Julio or act in lawful self-defense?

In many states, Jorge would be charged with assault with a deadly weapon. A homeowner generally cannot use deadly force to defend his property. There was no reason to believe Julio was armed or threatened Jorge with death or serious bodily injury. In some states, however, a homeowner can use deadly force if he reasonably believes an intruder intends to commit a felony in the home. This might not help Jorge because Julio wanted to continue the argument. In states such as Florida, however, which have passed "castle laws," Jorge might successfully argue legitimate self-defense. A resident is presumed to reasonably fear for his life if an intruder unlawfully and forcibly enters the dwelling of another; the homeowner can stand his ground. The prosecution could argue that Jorge knew that Julio was unarmed and only wanted to talk to him about the garbage cans. In a very similar case, prosecutors in Florida declined to prosecute.

It turns out Heather is an undercover police officer who, after telling her superior officers, arrests Penelope. Penelope utters the immortal words: "Et tu, Heather?"

In this example, Heather does not have the mens rea necessary to commit conspiracy because she is a police officer. In those states that have retained the common law's bilateral theory of conspiracy, Penelope could not be convicted of conspiracy because the crime requires at least two culpable parties. Because Heather is a police officer, there is no true collaborative criminal enterprise at work and the special dangers of a criminal group are not present. The prosecutor might consider charging Penelope with solicitation; however, Heather, not Penelope, originated the criminal scheme. Thus, Penelope cannot be convicted of encouraging Heather to commit a crime. Nor will attempted conspiracy succeed; to permit this strategy to work would undercut the bilateral theory of conspiracy and its plurality requirement. Finally, Penelope cannot be convicted either of attempted possession or sale of cocaine. The bad news? Penelope has lost a good friend! The good news? Penelope probably cannot be convicted of any crime. Under the MPC, however, Penelope could be convicted of conspiracy. She did agree with Heather to commit a crime; under the unilateral theory of conspiracy adopted by the MPC, she is guilty of this crime. The MPC focuses on the culpability and conduct of each individual and her dangerousness. It does not require that a genuine criminal group be actually at work.

Jack is a telephone operator for 911 Emergency Services. He agrees with Fast and Speedy Ambulance Service that he will divert at least 20 calls a day to them, for $50 a call. This arrangement continues for two months, with no ill effects. One day, Jack receives a call from Joseph Johnson, who screams over the phone: "My wife is having trouble breathing. Please get down here soon!" Jack obtains basic information, and concludes that the situation is not as bad as Johnson believes. Rather than calling the nearest ambulance, Jack diverts the call to Fast and Speedy, who this time isn't. Johnson's wife dies. Assuming that the prosecutor can establish causation, of what level of homicide is Jack guilty, if any?

Is this common law murder? Does Jack have "malice aforethought" — a mind "disregardful of social duty"? Under the Model Penal Code terms, is the risk "substantial" enough to warrant imposition of liability for murder? Remember — even under the common law, and clearly under the Model Penal Code, the prosecutor must show not merely that the RPP "would have" recognized this risk as substantial — he must show that Jack saw the risk as substantial. This is surely a jury question, and a jury could conclude that Jack must have considered the fact that he is involved in a business that literally involves life and death decisions, and must have considered the risk that something like this would happen.

Same facts. Now suppose that the state legislature has recently declared GHB a controlled dangerous substance, whose possession or delivery is a felony. Is there any different answer?

Is this now a felony murder? The first question would be whether Harry or Henry has committed a felony under the statute. Harry knew that GHB was a drug. His failure to know that it was a legally proscribed drug is irrelevant (see Chapter 5 on mistake of law). Thus, he has committed a felony. But the felony is probably not "inherently dangerous," either in the abstract, as many courts have required, or even as perpetrated here. Thus no felony murder. But Harry might be guilty of felony murder if his drugging of Hillary could be seen as an "attempt" to commit rape (or sexual assault) (see Chapter 9 for a discussion of why this could be rape). Most states provide by statute that a death that occurs during an attempt to commit rape will be first degree felony murder. The issue here would be whether Harry has moved sufficiently toward the target crime as to constitute an attempt. For a detailed analysis of that question, see Chapter 12. The short answer is that Harry is probably not guilty of attempt under most common law tests, but might well be guilty of attempt under the Model Penal Code. Under the Code, rape (or deviate sexual intercourse) is a predicate crime for which the rebuttable presumption of recklessness arises. Still, Harry can probably rebut that presumption fairly easily. Henry will probably not even be guilty of the felony, since he did not know that he was dealing with a drug which might be legally proscribed. If, however, the statute is read as imposing strict liability, or if possessing or distributing any substance is a crime activating the "greater crime" theory (see Chapter 5), then Henry might be responsible for the felony possession. Even then, just as with Harry, this is probably insufficient to warrant felony murder liability.

Cary is driving his new Rolls Royce one night at ten miles per hour under the speed limit. He is keeping a careful watch on the road. Suddenly, a child runs out in front of the car. Cary presses his foot to the brakes, but there is no response. Desperately, he screams at the child and veers his car hard to the left, applying the emergency brake at the same time. Nothing works. The child is killed. Cary is prosecuted for "reckless homicide." What result?

It depends. At the time of the injury, Cary is anything but reckless. However, if his brakes fail because he has consistently refused to have them adjusted, and they have been slowly deteriorating, then his prior fault (indeed, his getting into and driving the car that night, if he took cognizance of that risk) could render him liable. Remember that the principle of contemporaneity does not require that the mens rea coincide with the harm, but with the act that causes the harm. (Of course, if the evidence shows that even if the brakes had been in superb condition, the child would have been killed, then Cary's negligent act is not a cause in fact of the death.)

Lisa's parents were incredibly wealthy entrepreneurs who earned hundreds of millions of dollars through the course of their careers. After her mother passed away recently, her father's health began declining rapidly. It was no secret that he likely would not make it much longer. Lisa secretly anticipated his death. Her relationship with her parents was always turbulent, and she assumed she had half of a large fortune coming her way. Lisa visited her father one day and found his will, which left most of his and his wife's estate to Tom — the golden child — and a modest sum to Lisa. The will stipulated that if either child was not alive upon the will's execution, the living child would inherit everything. Furious, Lisa ran home and began plotting to kill Tom. She knew his wife would be out of town that weekend, so she bought a gun and made plans to stage a robbery gone wrong. That weekend, she broke into his house, snuck into his room, and unloaded her entire gun in the direction of his bed. Unfortunately for Lisa, she is a horrible shot and missed Tom entirely. Also unfortunate was that she struck and killed Tom's wife, who had cancelled her weekend plans. What result if Lisa is charged with intentionally killing Tom's wife?

It is clear from the facts that Lisa did not intend to kill Tom's wife. In fact, she took active precautions to ensure that his wife would not even be home when she committed the murder. For this reason, it is unlikely that she even recklessly killed Tom's wife Lisa. However, Lisa will still be on the hook for the crime. Under the common law, the prosecutor will rely on the doctrine of transferred intent. Here, Lisa intended to kill Tom but, in an effort to do so, ended up killing Tom's wife. Recall that this doctrine requires that the actor's actual harm matches the intended harm. Lisa's intent was to cause death, which matches the ultimate result — death. The result is the same under the MPC, although it is not explicitly referred to as transferred intent. Instead, the MPC specifies that an element is established even if the actual result differs from the intent, if the only difference is the person injured or affected. (Section 2.03(2)).

Jack is a highly respected golf pro. While on an airplane flight to California to play in the U.S. Open, Jack started to act very strangely, taking off his clothes and speaking incoherently. He then broke into the plane's cockpit and wrestled with the co-pilot, trying to grab the controls and yelling, "I'm going to kill you." Several passengers helped the co-pilot subdue and restrain Jack. After his arrest, doctors discovered that Jack was suffering from encephalitis, a viral infection of the brain that can cause confusion, altered consciousness, fever, and other symptoms. The disease is transmitted by mosquitoes and can be controlled by medication if the person knows he has it. Actus Reus?

Jack did not commit a crime if he did not perform a "voluntary act." The viral infection may have physically affected his brain and seriously impaired Jack's ability to engage in volitional and conscious behavior. Because he may have acted in a fugue state without any memory of the incident, Jack's conduct may not satisfy the actus reus requirement for committing a crime — even though his behavior seemed conscious and rational to other passengers. Note that the prosecution must prove a voluntary act beyond a reasonable doubt and that, without such proof, a defendant cannot be convicted of any crime, even a strict liability offense (see Chapter 6). If Jack was aware of his illness and could have prevented the symptoms by taking medication, he may be responsible based on his earlier "omission" (failure to take medication) and his duty to do so. This example is based on a real case.

While driving along the highway with Tara in the passenger seat, Jennifer spotted Bob, her fiancé, several car lengths ahead of her. She speeded up to wave at him. Bob, recognizing Jennifer in the car behind him, waited until she almost caught up to him and then sped away. Jennifer then increased her speed so she could catch up to Bob once more. Again, Bob, smiling, waited until Jennifer almost caught up to him and then increased his speed even more. This game of "cat and mouse" continued as each car increased their respective speeds. Bob and Jennifer were both laughing out loud when, suddenly, Jennifer, traveling well above the speed limit, lost control and hit a tree. Tara died instantly. Jennifer was charged with vehicular homicide. Is Bob liable as an accomplice? (Remember this scenario from Chapter 7?)

Jennifer is clearly a principal in the first degree at common law and is a principal under the MPC. In many jurisdictions, Bob could be charged as an accomplice in the vehicular homicide of Tara for intentionally encouraging Jennifer to drive well over the speed limit by initiating and continuing to play this dangerous game. Granted, Bob did not verbally communicate with Jennifer to egg her on, and Jennifer was the last responsible moral agent who could have slowed down at any time and avoided this tragedy. However, the law of accomplice liability does not require significant encouragement nor does it require "but for" causation as required elements for liability. Thus, Bob can be convicted as an accomplice and could receive the same sentence as Jennifer.

Judge Smith sentences John to 40 years for minor offenses. John plans to put a death hex on Judge Smith. John asks his brother, Lonny, to call Judge Smith's house keeper, Emma, to get some personal items of Judge Smith's, a hair brush and an old picture. Lonny agrees to assist John and contacts Emma. Lonny offers to pay Emma for the personal items of Judge Smith. Emma works with authorities in a sting operation to stop the voodoo murder.

John had the mens rea required under common law. He intended to carry out a death hex to cause the death of Judge Smith. John has not yet committed the "last act" of his offense, because the authorities stepped in. The prosecution would have a better chance of convicting John under the probable desistance test. John showed no indication of ceasing his attempt to put a death hex on Judge Smith, and if Emma had not alerted the authorities, John likely would have continued in his efforts. Under the MPC, John also satisfied the mens rea requirement. It is likely John also satisfied the actus reus requirement. John solicited his brother to help with the crime by instructing Lonny to obtain specific objects needed for the death hex from Judge Smith's housekeeper. He was in the process of obtaining the "tools" he needed to complete the voodoo and kill the Judge. These activities strongly corroborate John's purpose. The defense could argue impossibility. On one hand, this could be a case of legal impossibility because there is no law against voodoo. However, because John thought he was going to accomplish the murder of Judge Smith, which is a crime, it may be a case of factual impossibility. Finally, the defense could contend that killing the judge by way of a voodoo death hex is so inherently unlikely to result in the death of Judge Smith that the court should dismiss the case. Are John and Lonny subject to conspiracy liability as well?

Julie, an explosives expert who is angry over Dave's decision to break off their relationship, sneaked over to Dave's house and wired his car so that it would explode when Dave started it the next morning. Later that evening, Dave died of a heart attack. Upon learning of Dave's sudden demise, Julie sneaked over to the car the next evening and removed the explosives.

Julie has committed attempted murder. She purposefully wired Dave's car in order to kill him. Under the common law, she took the last step (though it could be argued that events were not yet beyond her control since she, in fact, did disarm the bomb). Her behavior may also have satisfied the equivocality test because planting a car bomb manifests criminal intent. Under the proximity test, a jury could well find her guilty because she has come close in time and space to committing the target crime, and this is a very serious offense likely to arouse strong community resentment. Though she did change her mind, it was not for the same reasons that would motivate a law-abiding person. Under the MPC, Julie has surely taken a substantial step; planting a car bomb so it would explode when someone started the engine is strongly corroborative of a criminal purpose to kill. Can Julie raise the defense of impossibility because she could not possibly have killed Dave, who had died during the night? This is not a case of legal impossibility. If the facts had been as Julie thought they were, Dave would have been alive and her plan to kill him would be a crime. Thus, Julie can be convicted of attempted murder. Julie cannot raise the defense of renunciation. Even though she unwired the car so that no one else would be killed and she probably would not try to kill anyone else, she did not change her mind for the right reasons as required by the MPC. So sorry, Julie!

Yitzhak has invited his good friend Raisha to stay in his home while Raisha is touring the city. Four days into the stay, Yitzhak goes to work, leaving Raisha with a key in case he wants to see the sights. Instead, Raisha decides to sleep in. Two hours later, he hears the sound of glass and sees a figure coming through the porch door. Raisha is standing by the front door and could easily leave. Instead, he grabs a nearby rifle and shoots the figure, killing her. a. The figure is a burglar, intent on stealing Yitzhak's priceless violin. b. The figure is Helen, Yitzhak's girlfriend, who had forgotten her key and was desperate to enter the house and surprise Yitzhak.

11a.The question is whether Raisha has to retreat. In virtually every state, including those that would otherwise require retreat, Yitzhak, the owner of the house, could clearly kill the burglar — an owner's home, after all, is his castle. But is a guest's temporary "home" his castle? The courts are split. Some say that the guest stands in the shoes of the owner. Others argue that the "no retreat" rule should be narrowly applied, since it allows the (by hypothesis, unnecessary) taking of life. Note: The length of Raisha's stay would be irrelevant to either of these schools of thought; if Raisha had been there only one hour, he still either "stands in Yitzhak's shoes" or he doesn't. 11b.Here the issue is whether, assuming that Raisha did not otherwise have to retreat, he had to wait to see if the intruder was threatening deadly force. The answer is generally NO. So long as the shooter made a reasonable mistake (and not waiting for the intruder to actually threaten to use deadly force is hardly unreasonable), Raisha's off the hook.

Darth and his 15-year-old son Luke walk into a bar. Darth orders two scotch and sodas, but Carrie, the server, refuses to give one to Luke, who is obviously under the legal age for drinking. "He's my son," says Darth. "I can serve him anything I want." "Not here," replies Carrie. Darth demands to see the owner-manager, Han, who reaffirms Carrie's decision. At that point: a.Darth pulls out a badge, which shows that he is with the Alcohol Beverage Commission. "If you don't serve my son right now, I'll close you down for six months. See how that helps your business in this economy." After that the liquor flows freely for both customers. b.Darth pulls out the same badge and says, "If you don't serve my son today, I'll be sure to revisit you within two weeks. And you'd better not have any violations, or I'll close you down for six months." The liquor flows freely again. c.Darth pulls out a light saber and destroys one of the wine bottles on the bar's shelf. "Want to see how much damage this can do? And it doesn't just destroy bottles, either," he says. The liquor flows freely for both Darth and Luke. Carrie and Han want to plead duress when charged with serving alcohol to a minor. Will they be successful?

14a.No. Threats of an economic nature cannot be a basis for a duress claim. Even if Han believes that his business would go bankrupt, he has no duress claim. 14b.No. In addition to the economic nature of the threat, this example concerns a "non-imminent" threat. Han, at least in theory, could prevent the closing or could appeal it. 14c.No. The destruction of the bottle, while immediate, is still only economic. Carrie and Han have a plausible, but still weak, argument that they feared that Darth would turn the laser on them. But Darth's words are ambiguous, and there is nothing in the Example, as worded, that would lead to a reasonable belief that he would harm them. If there were such facts, the issue might then go to a jury. But note — under the common law, both Carrie and Han must claim that they feared that Darth would harm the person claiming duress. If the threat to Han, for example, was to harm Carrie, Han would not have had a claim of duress — the harm has to be to oneself (or, later, to a family member). The MPC would give the same answer in (a) and (b) — economic threat is not a basis for a duress claim. However, the Code does not require that the threat be imminent — merely that a person of reasonable firmness might capitulate. In (c), however, the Code allows the claim if any person (not necessarily the duressed person) is threatened. Carrie and Han would therefore have that argument, but, again, only if Darth's words were construed as threatening personal injury. Caveat. This question was phrased only in terms of a "duress" defense. If Carrie and Han had a creative attorney, they could also raise a "lesser evils" argument. While the common law often required that the source of a necessity threat be human, many common law courts, as well as the MPC, have rejected that as a separate element. And neither the common law nor the Code precluded the lesser evils argument if the threat was economic. But it might be hard to persuade a jury that loss of a liquor license is a greater evil than serving an underage customer. Their best bet is to persuade the jury that serving the defendant's son is not a greater evil, because the defendant is the one who wanted his son served.

Pedro's wife, Maria, recently left him for José. Pedro, upset and angry, discussed his situation with his close friend, Al. Pedro told Al he was so mad, he could kill José. Al replied: "The man who stole Maria deserves to die. Your honor will be upheld and you will feel much better. If you are a real man, you must do it." a.That evening Pedro grabs his pistol from his closet but cannot bring himself to leave his house. Nothing further happens. b.Same facts, except that Pedro leaves his house and kills José. c.Same facts, except that Pedro leaves his house and kills José and Maria. d.Same facts, except that Al gives Pedro a loaded gun and says: "Here, my friend. This is for your honor." That evening Pedro kills José and Maria. e.Same facts as in Example 8d except that later that afternoon Al decides that killing José is wrong. Al calls Pedro and tells him in strong language that killing José is wrong and will not solve anything. Pedro says he will think it over. Later that night Pedro uses the gun Al gave him and kills José. f.Pedro uses his own gun to kill José and later goes to Al's house (who does not know that Maria has left Pedro to run off with José) and says: "I have just killed the man who stole my wife with this gun. Get rid of it immediately." Al has already heard news reports that say that Pedro is the prime suspect but that the murder will probably not be solved unless the murder weapon is recovered. Al takes the gun Pedro gave him to a garbage dump where it is soon covered over with several tons of new garbage. g.Same facts as in the first paragraph of this Example except that Pedro tells Al that he has placed a bomb in José home set to explode at 9:00 p.m. Al replies that Maria and José will be at a movie at that time. Pedro says: "I know that. I just want to scare them. Maybe Maria will come back to me." Al decides that scaring Maria and José is not enough. At 8:30 p.m., Al calls José at the movie theater and tells him his house has been broken into. José and Maria immediately leave the theater and return to José's house. The bomb explodes while they are there, killing both of them.

8a.Because Pedro has not committed any crime, there is no guilty principal. At common law, Al could not be convicted as an accomplice. Under the MPC, the result is the same; Al cannot be convicted as an accomplice because Pedro has not engaged in the conduct required to commit the object crime or an attempt to commit it. 8b.Al is guilty as an accomplice because he has provided psychological reinforcement to Pedro to commit murder and the principal committed that very crime. Because there is a guilty principal, Al would be convicted under both the common law and the MPC. An interesting question here is whether Al might be guilty of a greater crime than the principal. Pedro might have a heat of passion or related defense (though unlikely); Al would not. If Pedro is convicted of manslaughter, can Al be convicted of premeditated murder? At common law the accomplice's liability is generally limited by that of the principal's unless the crime is murder. Thus, Al can be convicted of a more serious offense than Pedro. If a crime other than homicide were involved, such as assault, the general rule is that the accomplice cannot be convicted of a more serious crime than the principal. Under the MPC, and the law of some jurisdictions, the liability of the accomplice is measured by hisculpability together with the conduct of the principal. Consequently, Al could be convicted of a more serious degree of homicide. This is true even for less serious crimes than homicide. 8c.This is a tricky one. Al encouraged Pedro to kill only José; he did not encourage him to kill Maria. Thus, Al did not intend to assist Pedro in the particular criminal action of killing his wife. The MPC and many jurisdictions would require that the accomplice act with the purpose or intent of encouraging the specific criminal conduct of the principal. Negligence toward other crimes committed by the principal is not a sufficient basis for accomplice liability. Thus, Al would not be guilty as an accomplice for Pedro's murder of Maria in these jurisdictions. However, some jurisdictions are expanding accomplice liability to include crimes committed by the principal that were a "natural or probable consequence" of the offense the accomplice intended to aid or that should have been "reasonably foreseen." A prosecutor could argue that Al should have foreseen that a jealous husband might well kill his wife as well as her lover. (Unfortunately, this argument may reinforce the law's acceptance that male violence in intimate relationships is understandable and should be condoned or at least partially excused.) Or a prosecutor could argue that the accomplice has set in motion forces that might readily lead to this particular consequence. Convicting Al as an accomplice for the murder of Maria would be possible in these jurisdictions. 8d.The only difference here is that Al provided physical assistance as well as psychological reinforcement. The analysis of Al's criminal responsibility here is the same as in Explanations 8b and 8c above. Evidence of the actus reus required for assistance is stronger here. 8e.By calling Pedro and telling him not to kill José, Al has clearly withdrawn the psychological encouragement to commit murder he had given Pedro earlier in the day. Thus, his call to Pedro is an effective withdrawal of aid previously furnished. However, Al also gave Pedro a loaded gun to use in killing José. Al has not rendered that aid ineffective. Thus, under common law, Al would still be liable as an accomplice. The MPC is also very demanding before withdrawal will be legally effective. Al has not completely removed the effectiveness of his aid (providing the loaded gun). Al should have gone to Pedro's home and taken back the gun. Nor did Al call the police. A jury might conclude that Al has made a "proper effort" to prevent the commission of the crime, but more likely Al will be convicted because he did not take sufficient steps to prevent the commission of the crime. 8f.Al is clearly an accomplice after the fact at common law because he has intentionally disposed of a weapon that he knows has been used in a homicide, making it difficult, if not impossible, for the police to gather essential evidence for investigation and prosecution. Under the MPC, and many modern statutes, Al would be guilty of criminal facilitation or rendering criminal assistance. The degree of punishment often depends on the severity of the crime committed by the principal. The liability of the person rendering aid after the crime has been committed usually is not affected by the subsequent acquittal of the principal. The essence of this crime is obstructing justice by aiding flight, preventing apprehension, or destroying or concealing evidence. 8g.This is an extremely difficult problem (even for us, if that is any consolation). Pedro only intended to scare José and Maria; he did not intend to kill them. Al did not intend to help Pedro accomplish that goal. Instead, Al decided to kill José and Maria. Thus, Al is a principal in a homicide charge. Granted that Pedro might be liable as a principal under a separate felony murder theory, is he guilty as an accomplice to Al's murder? Probably not because Pedro did not act with the purpose to assist Al commit a homicide. Indeed, Pedro did not know that Al intended to commit any crime.

While fleeing a police officer attempting to pull him over for a traffic stop, Rob runs a red light, hitting a pickup truck in the intersection and killing its driver. Rob is charged with manslaughter. At Rob's trial, the judge does not instruct the jury concerning justification or excuse in homicide charges. Is the court in error? Does this instruction matter in regard to a manslaughter offense as opposed to a homicide offense? Does Rob have a right to the instruction even if the facts aren't concerned with justification or excuse?

A Florida Appeals Court thought so. In Burford v. State, 77 So. 3d 917 (Fla. Dist. Ct. App. 2012), where this fact pattern occurred, the state argued that failure to give the instruction was not a fundamental error, because the facts did not support a finding of excusable homicide. The Court disagreed, citing precedent that held, "It matters not whether any view of the evidence could support a finding of either excusable or justifiable homicide." Id. at 919. Manslaughter is a derivative offense of homicide, and justifiable and excusable homicide were excluded from this crime. Therefore, the Appeals Court held, the trial judge should have included an instruction that justifiable and excusable homicide were excluded from this crime.

Susan, Kelly, and Cathy have smuggled cocaine into Florida from various Caribbean islands using the same modus operandi: They charter a small plane at rates well above market, use different disguises during each trip, fly at night, fly low to avoid detection, and depart from destinations known to be drug sources. Recently, they chartered a small plane owned and piloted by Norm to fly them to the islands and then to fly them back to Florida. Although they did not explicitly tell Norm that they were using these trips to transport drugs into the United States, they told Norm all the other details of their previous trips. In addition, they paid Norm $3,000 more than his normal fee and used obvious disguises for each trip. On the fifth flight, Norm and the ladies were arrested in Florida and charged with a conspiracy to smuggle drugs into the USA. a.Can Norm be convicted of conspiring with Susan, Kelly, and Cathy to illegally transport cocaine into the United States? b.If so, can Norm be convicted on the smuggling counts for the trips the ladies made prior to his involvement?

A jury could infer that, though Norm did not actually know he was transporting cocaine into the United States, he nonetheless knew he was participating with others in illegal drug smuggling and that he intended to join and participate in the conspiracy. Norm was paid more than his usual fee, made several trips at night while flying low to and from destinations known as sources for drugs, and knew his clients used various disguises. He also knew that they had done this before. A conspirator does not have to know all the details of a conspiracy as long as he knows its essentials and intends to participate in the conspiracy. Though Norm may have joined a conspiracy "in progress," so to speak, he is not liable for any substantive offense committed by his co-conspirators prior to his becoming a co-conspirator. The Pinkerton rule does not impose responsibility for foreseeable crimes committed before a co-conspirator joins the conspiracy.

Michael is told by his doctor that he has AIDS. He continues to have sex with various partners without telling them of his condition. Two of his partners die. Is he guilty of murder? If so, what degree?

A number of cases reported in newspapers have involved persons charged with "attempted" murder in similar situations; that issue is discussed in Chapter 12 infra. Many states have made, the knowing or reckless transmission of AIDS a crime by itself. See State Criminal Statutes on HIV Transmission, https://www.aclu.org/other/state-criminal-statutes-hiv-transmission (last visited Jan. 25, 2018). If death were to occur, as in the example here, a jury could easily find the defendant had a "depraved mind" with regard to all of the possible victims. But if (as in the Malone case) we consider the victims one by one, it is a more difficult question. The chances of infecting "someone" may be significant, but the odds of infecting any one victim are relatively insignificant. Still, on the "traditional" notion of "morally bad behavior" as the premise of mens rea, Michael seems to qualify. It is also possible, if the state has made sexual contact without disclosure a felony, that Michael could qualify for second degree felony murder (see the next section). Failing that, Michael is surely "grossly negligent" for not having informed his partners of his condition and is therefore guilty of involuntary manslaughter (see pages 244-246 infra). Under the MPC, the analysis is really the same — does the "unjustifiable" risk for recklessness have to be "quantifiably" substantial or only "qualitatively" substantial (i.e., disproportionate to the gain). Another consideration is that an AIDS transmission is no longer the death sentence it used to be, as many are able to live a long and productive life with the disease.

Three days after 9/11, Carla, a devout Sunni Muslim wearing hijab, is driving her car non-negligently in an area known to be highly indignant about the terrorist attack, when Jimbo, a 4-year-old white child, runs right in front of her car and is hit. Carla immediately calls an ambulance on her cell phone. A crowd gathers and recognizes the hijab as Islamic attire. Carla then departs. During her trial for leaving the scene of that accident, she tries to introduce evidence that (1) someone in the crowd shouted, "She's a terrorist," and (2) a resident of the neighborhood, whom she knew well, said to her, "You'd better get out of here now. This crowd is getting nasty." The trial judge refused to allow this testimony. Was the judge right in doing so?

According to the court in Knight v. State, 601 So. 2d 403 (Miss. 1992), no. Carla's claim of necessity depended on why she left the scene. Since the purpose of the statute — to assure assistance to Jimbo — had been achieved by the presence of the crowd and the calling of the ambulance, Carla's continued presence was not required, and if she feared for her life, it is at least possible that the jury might have found her departure both reasonable and necessary. (The Knight cases actually involved a 48-year-old black defendant who hit a 5-year-old white child riding a "Big Wheel" toy into the car's path.)

Bertrand's wife, Lisu, recently divorced Bertrand, but he desperately wants to get back together. He has called her numerous times to no avail. Bertrand suffers from a minimal brain dysfunction with an associated explosive personality disorder with paranoid features. Minimal brain dysfunction is a biochemical imbalance in the brain that prevents Bertrand from maintaining control over his emotional impulses, especially in stressful situations. Finally, Bertrand visits Lisu at home, unannounced. She is very upset at Bertrand for his untimely visit and does not want to let him into the house, but finally does. She tries to explain that they cannot reconcile but he will not listen. When the discussion turns into a verbal fight, she tells him he is a "loser, incompetent, and sexually inadequate." Bertrand becomes extremely angry and upset. He grabs Lisu and indescribable violence ensues. Lisu ends up in the hospital in critical condition for her injuries. The prosecution charges Bertrand with attempted murder. Bertrand seeks to present the testimony of a psychiatrist concerning his mental condition. The prosecution moves to exclude the evidence as irrelevant to legal insanity or to any other issue. Should the trial judge permit Bertrand to present the testimony of the psychiatrist, and, if so, on what issues?

Although Bertrand suffers from a "minimal brain dysfunction," it probably does not prevent Bertrand from understanding the nature or quality of his act or that it was wrong to strike Lisu. Under the M'Naghtentest, he is not legally insane. If the jurisdiction used the MPC insanity test, Bertrand could introduce the testimony of a mental health expert to show that, at the time of the offense, he suffered from a mental disorder that substantially impaired his ability to conform his conduct to the requirements of the law. If the jury agreed, he might be found not guilty by reason of insanity. But if the jury does not find Bertrand legally insane, it might still be able to consider the expert testimony in determining whether Bertrand intended to kill Lisu, if the jurisdiction permits the diminished capacity defense. Because of the very serious injuries Lisu suffered, a jury might reasonably conclude that Bertrand intended to kill her rather than assault her. Thus, a jury might well convict him of attempted murder. Under the diminished capacity defense, Bertrand could introduce the expert's testimony on the mens rea. He would argue that his minimal brain dysfunction prevented him from forming the necessary mens rea for attempted murder; that is, he did not intend to cause Lisu's death. Rather, he was angry, stressed, and upset, and his brain dysfunction made him unable to control his impulses of rage. The testimony would help the jury understand that, though he may have intended seriously to hurt Lisu, Bertrand did not want to kill her. Even if this defense is successful on the mens rea element of attempted murder, Bertrand will not be fully acquitted. Rather, he will probably be convicted of a less serious crime, such as assault. This example also illustrates that evidence concerning the defendant's mental condition at the time of the crime may be admissible on both the defense of legal insanity (particularly if the MPC test is used) and on the presence of mens rea if a diminished capacity defense is allowed.

Sister of Fortune magazine, compiled and published solely by Amanda Ashwood, recently ran an advertisement in its classified ad section that read: "Do you need help PERMANENTLY ridding your life of battering boyfriends? Just call Tammy the Terminator at 1-800-MRCNARRY." One week later the body of a battering boyfriend was found. Two weeks later Tammy confessed to this murder-for-hire homicide, telling the police that Leslie, her client, found her and hired her through this ad. The prosecutor wants your advice (ignoring any constitutional law or corporate law issues) on whether she can prosecute Amanda as an accomplice. Please advise.

Amanda provided vital information about how to hire a professional killer to interested consumers. Most jurisdictions and the MPC would require the prosecution to prove that Amanda acted with the purpose of assisting another person to commit a crime. Some courts would hold an actor guilty as an accomplice if she provided assistance to someone she knows intends to commit a serious crime. (See the Fountain case, supra.) The prosecutor would point out that this information could only be used to assist someone in committing a serious crime; it had no lawful purpose. Moreover, the language in the advertisement was very clear about the ultimate criminal purpose for which Tammy would be hired. Amanda would counter that she did not know that Tammy, let alone Leslie, presently intended to commit a crime. Thus, she could not have acted with the necessary mens rea. What would you tell the prosecutor?

Barney goes into FAO Schwarz to buy toy dinosaurs for his children. He pays for the toys with a VISA credit card. Unknown to Barney, the card has expired. He is prosecuted under a statute that punishes anyone who "purposely uses an expired credit card to obtain goods or services." What result?

Barney seems like a nice enough chap, but he may well have violated this statute under the common law. Different common law courts might have defined "purposely" differently; for this example, we will equate it with "intentionally," a much more frequently used adverb, whose meaning is more or less self-evident. The first question, of course, is whether Barney "purposely used" the credit card. This seems fairly straightforward: Barney used what he knew to be a credit card and therefore "purposely" used it. But is that sufficient for liability? Or must Barney's "intent" be to use an "expired" credit card? How far down the statute does the word "purposely" run? Many common law courts would conclude that "purposely" does not modify "expired" or even "credit card"; as long as Barney "intentionally used" something that was in fact a credit card, and that was in fact expired, that would have been enough. His mens rea as to what it was, or whether it was expired, would have been irrelevant. Moreover, if "purposely" modifies "expired," what does "purposely" mean? Would it require that Barney intended to cause the card to be expired? Or would it require that he know that it was expired? Or that he know that it "might be" expired? Common law courts wrestled with these statutory interpretation problems and came to different conclusions. Under the Model Penal Code, the answer is easy. The mens rea word modifies every material element of the statute. Obviously, it is material that the card be "expired." If it were not expired, there would be no harm (assuming, for example, it was not stolen). Under §2.02(1), "purposely" modifies every material element. Since "expired" is not a result (at least not of Barney's conduct), it must be an "attendant circumstance" material element. And, by §2.02(a)(ii), Barney must "be aware of the existence of such circumstances or . . . believe or hope that they exist." Unless Barney knows or hopes the card is "expired," he is home free.

Harry takes Hillary out on a date. Intent on having intercourse with her, he obtains some GHB, a colorless, odorless drug that is known as the "date rape" drug. The drug can produce lassitude and a temporary euphoria, and sometimes hallucinations. Unknown to Harry, the drug can also produce unconsciousness if it is even slightly "impure." He asks the bartender, Henry, to put the GHB, which he tells Henry is a harmless substance, in Hillary's drink. If Hillary dies as a result of the drink, what homicidal crime has Harry and/or Henry committed?

Begin by asking whether Harry has committed murder. Harry may be a bad actor, and a potential rapist, but under the common law, it is unlikely that he had a "depraved heart" with regard to death. Thus, this is probably not murder. And if it were murder, it would not be first degree, since the death was not premeditated. The same result would obtain under the MPC: Harry is not purposeful or knowing with regard to death, and even if he knew that there was some risk of death, it would be hard to argue convincingly that he acted under "circumstances manifesting extreme indifference to the value of human life." Under the common law, then, Harry is, at worst, guilty of manslaughter, but not voluntary manslaughter, since this did not occur in the heat of passion brought on by adequate provocation. The common law and the MPC, in slightly different language, would require that Harry exhibit "gross negligence" or "recklessness" in his conduct, which might be appropriate here, depending on Harry's (or the reasonable person's) understanding of GHB's potency. Henry, not knowing the kind of drug he was distributing, would probably not even be "grossly negligent." Caveat. In legal theory, Harry and Henry have both committed battery upon Hillary, since they have knowingly caused her to be touched by a drug to which she did not consent. The battery is likely to be a misdemeanor (since no serious bodily harm occurred as a result of the mere touching). If the common law notion of "misdemeanor manslaughter" were applied here, both might be guilty of manslaughter. This hypothetical is based upon a real case, in which a jury convicted two defendants of involuntary manslaughter. In the actual case, the young men who laced the drinks failed to call emergency help; instead, they argued about what to do when the victim passed out.

Mary, seeking to rent an apartment in a very tight market, falsely tells the Realtor that she works for the Defense Department. Unknown to her, the Realtor is an FBI agent. Mary is prosecuted for knowingly providing false information to a federal employee. What result?

Believe it or not, under both the common law and the MPC, it is likely that Mary will be on her way to prison. This is a variation of United States v. Bakhtiari, 913 F.2d 1053 (2d Cir. 1990), which actually has much more bizarre facts than the example. Some courts would explain that "federal employee" here is not a "material" element, but only a "jurisdictional" element of the offense, and no mens rea is required. If this is a valid argument, the Model Penal Code would agree. Other courts might consider this an example of the "greater moral wrong" theory; while still others might consider a mistake (or ignorance) as to the legal status of the Realtor a legal mistake, and hence governed by ignorantia lex.

Bruno was angry at the museum for making him stand up during his day shift. One day he saw Anthony creeping slowly toward a famous small painting on display at the museum. Strongly suspecting that Anthony intended to steal the picture and hoping to get back at his boss, Bruno took an unscheduled "coffee break" to make it easier for Anthony. Anthony, unaware that Bruno had left the room, took the painting from the wall and quickly left the museum.

Bruno can be convicted of being an accomplice to Anthony's theft of the painting. This is a case of omission or failure to act when there is a legal duty to prevent another person from committing a crime. As a security guard, Bruno had a civil legal duty by virtue of his employment contract to take reasonable steps within his power to prevent the theft of the picture. Instead, Bruno left the room with the purpose of making it easier for Anthony to commit the crime. Note that Bruno is an accomplice even though Anthony did not realize that he was being assisted in committing the crime. There is no requirement that the principal know he is being assisted to commit the object offense, though this is generally the case.

Lydia covets a painting at the local museum. She persuades Bruno, a guard at the museum, to leave a window in the ladies' room unlocked so that she can enter the museum during the night and steal the painting. That evening, Bruno leaves the window unlocked. While on her way to the window, Lydia discovers that a door has been inadvertently left open by a museum employee. Lydia enters through the door, steals the painting, and leaves.

Bruno would argue that his aid to Lydia — leaving the window unlocked — was completely ineffective; consequently, he cannot be convicted of being an accomplice. This argument would probably be successful. The prosecutor may have a fallback theory, however. By telling Lydia he would leave the window open, Bruno may have encouraged Lydia to commit the burglary and theft. Thus, these words by themselves might be considered legally sufficient assistance to convict Bruno of being an accomplice. At common law, doing something that did not help P-1 in any way to commit the offense was an insufficient actus reus for accomplice liability. Under the MPC, however, Bruno has clearly "attempted" to render assistance; consequently, under §2.06(3)(a)(i) he can be convicted as a principal even though he did not provide any useful assistance. (This assumes that leaving the window open meets the MPC's definition of "substantial step" by "strongly corroborating" the actor's criminal purpose.) The MPC focuses more on the actor's attitude rather than on whether his help was useful. Of course, the prosecutor may also be able to establish a conspiracy to commit burglary and theft if she can show that Bruno and Lydia had entered into an agreement to commit a crime and one of them took an overt act in furtherance of the conspiracy. If this argument proves successful, Bruno would be liable for the crimes of burglary and theft committed by Lydia in a jurisdiction that follows the Pinkerton rule.

Ronald kills his mother, who is dying of terminal cancer and has asked him to assist her to die. He is prosecuted for first-degree capital murder, but the statute provides that "whoever proves, beyond a reasonable doubt, that he has committed murder in order to alleviate the pain and suffering of a person within two degrees of consanguinity shall be guilty of merciful murder, punishable by 25 years." Can the state make Ronald prove these facts?

Certainly. Ronald has premeditated the killing and hence has committed first-degree murder under the statute. Notwithstanding the arguments that one who kills in such circumstances lacks the mens rea necessary for murder (or even manslaughter), the common law has rejected such arguments. Thus, the state here has given Ronald a "bonus" beyond that which the common law would allow. The state may circumscribe such a defense by placing upon the defendant the burden of proving it. Under the Code, such "exceptions" seem like excuses that, pursuant to §1.13(9), must be "disproved" by the state once reasonably raised by the defendant.

Dr. Able skillfully performs complicated and risky brain surgery, reasonably concluding that otherwise Edna will surely die within a few days. Despite the surgery, Edna dies from excessive bleeding resulting from the surgery. 4b.Edna would have survived if Dr. Inept had not provided negligent medical treatment. 4c.Edna would have survived if Dr. Hopeless had not provided grossly negligent medical treatment.

Charlie's conduct satisfies "but for" causation. Edna's injury and subsequent medical treatment would not have occurred unless Charlie had struck her. However, there is an intervening cause — the negligent treatment provided by Dr. Inept. In most jurisdictions negligent medical treatment is considered foreseeable and the natural and probable result of the actor's harmful conduct. Thus, it is a dependent intervening cause that does notdefeat a finding of proximate cause. Charlie would be found to have caused Edna's death in most jurisdictions and could be convicted of a homicide charge. The outcome under the MPC is not clear. Charlie's conduct satisfies its "but for" causation requirement. The jury would then have to decide whether the actual mechanism of death, Dr. Inept's negligent medical care, was "too remote or accidental" to convict Charlie. 4c.The initial analysis here is the same as in Example 4b. Grossly negligent medical treatment is generally not considered foreseeable or the natural and probable result of the defendant's conduct. Such a deviation from the standard of medical competency is unusual as a matter of human experience. Thus, it is an independent intervening cause that precludes a finding of proximate causation for Charlie. Under the MPC, there is a strong case for concluding that the grossly negligent medical treatment provided by Dr. Hopeless is too remote or accidental to fairly hold Charlie responsible. This will be a value judgment that the fact finder will have to make.

Chauncey knew that he had the Zika virus and that having unprotected sex exposed his partners to a significant risk of contracting Zika. He also knew that most people who have Zika can have babies who contract a disease that makes them unlikely to survive. Nonetheless, he continued to have extensive unprotected sex with various partners, lying about his condition. Chauncey has been charged with attempted murder after impregnating one of his partners.

Chauncey has engaged in conduct that poses a serious risk that he will infect one or more of his partners with Zika, which can lead to Zika in an unborn child and in due course to death. The prosecutor could argue that by deliberately engaging in this very high-risk behavior, Chauncey intended to kill his partner's unborn child. But the only evidence of mens rea here is the conduct that creates risk. Without better evidence that Chauncey acted with the purpose of killing his partner's unborn child rather than with extreme indifference to the possibility of infection and death of a future child, the prosecutor will probably fail to prove attempted murder. One court has upheld multiple convictions for attempted murder for HIV cases, which are slightly different, on the finding that a jury could conclude beyond a reasonable doubt that the defendant intended to kill his victims or cause them serious bodily injury.21 Thus, conduct that creates a serious risk of death can support an inference that the actor intended that result.

Chester decides to rob the corner convenience store. His wife, Pauline, implores him, "No violence. No weapons. Just go in, take a few things, a little money, and leave." Chester agrees. As he walks into the shop, however, Chester screams at the owner, Apu, "It's you. I've been waiting 20 years for this." Chester grabs a nearby snow shovel for sale in the store and hits Apu. "You killed my daughter 20 years ago. Now you'll pay for it," says Chester. Chester hits Apu 30 more times, killing him. Chester then takes several food items and the money from the cash register, and leaves. Twenty years earlier, Apu had been (non-negligently) driving a car when Chester's daughter ran directly into its path. An investigation found that Apu had not committed any crime or tort. Chester had always thought Apu criminally responsible, but had moved away soon thereafter, and did not know that Apu was running the convenience store. For what level of homicide, if any, are Pauline and/or Chester guilty?

Chester has killed Apu. But while it took at least several minutes to kill Apu, this will probably not be "premeditation," even in a jurisdiction where "premeditation may occur in a second." But it may be second-degree murder — malice aforethought homicide in the old common law. Chester will argue heat of passion but Chester had 20 years to cool off. That's more than enough time, certainly under the common law view that this was a question of law, not of fact. Under more modern views, however, the cooling-off question is for the jury — and Chester will argue that he was "rekindled" (although Apu did nothing to remind him of the original grief). Under the Model Penal Code, the issue is always one for the jury — which might be sympathetic to Chester and conclude that a "reasonable person" in Chester's "situation" would experience "extreme mental and emotional disturbance." What about felony murder? Certainly, Chester had larceny on his mind when he entered the store. And he committed larceny after he killed Apu. But there seems to be little connection between the larceny and the killing. Chester will argue that he did not kill Apu to facilitate the larceny — he was so enraged that he forgot the larceny. So, the killing was not "in furtherance of" his crime. He will then argue that, having killed Apu, he "remembered" the larceny and took the money, but that by that time Apu was dead so, once again, although the killing furthered the larceny (making it easier to steal the money), it was not in furtherance of the larceny. There are reported cases, for example, where A, in a rage, kills B, and then steals his money. Assuming that the idea of taking the money occurs AFTER the killing, courts have found no felony murder. This is a more difficult case, because Chester intended to steal before he saw Apu. But he will argue that there were two — or possibly even three — unconnected "events" in this scenario. To the extent that Chester is culpable for Apu's murder, Pauline may be, as well. Recall that the felony murder rule imposes liability on accomplices in the felony for a felony murder, whether or not they actually aided in the killing. Here, Pauline would certainly be found to be Chester's accomplice in the predicate felony; her arguments against liability would then mirror Chester's.

What if Cindy had pushed Hal off the building, intending to kill him, after he told her their relationship was over? Who killed Hal? Cindy? Julia?

Cindy would argue that Julia is the "direct" cause of Hal's death. Furthermore, she would argue that the manner in which Hal died was absolutely unforeseeable and accidental. Thus, Julia was the independentintervening cause and Cindy can only be convicted of attempted murder. The prosecutor would argue that this is a case of concurrent causation and that both Cindy and Julia caused Hal's death. He will argue that either Cindy's or Julia's conduct would have caused Hal's death and that Julia's conduct merely hastened an inevitable result set in motion by Cindy. Thus, this must be a case of two independent causal agents who must bear joint responsibility for causing Hal's death. The prosecutor probably has the better argument. Cindy intended to cause Hal's death. She should not escape responsibility simply because the particular harm she intended came about in such a bizarre and unexpected manner. But, it is a close call! Under the MPC, Cindy is a "but-for" cause of Hal's death; Hal would not have been in Julia's line of fire had Cindy not pushed him off the building. But was Julia's errant shot "too remote or accidental in its occurrence to have a just bearing" on Cindy's responsibility? One suspects that a jury would not let Cindy, the primary actor who set out to kill Hal, off the hook just because Julia was trying to kill someone else and did the job for her.

Widgets Inc. manufactures widgets. A by-product of the process is "gooey," which is extremely toxic and has been declared by the state Environmental Protection Agency to be a hazardous waste. Daniel, vice president of Widgets, knows of gooey's characteristics but, needing money, decides to dispose of the gooey by dumping it into a nearby river and pocket the money that is otherwise earmarked for disposal processes. Six months later, Billy, age 5, dies from swimming in the river. An expert will testify that gooey, still present in the river, caused Billy's death. Dan is charged with Billy's death. What result?

Clearly, Daniel is not guilty of first-degree murder under the common law. He did not intend, much less premeditate, the death of anyone. Whether he had a "depraved heart" is less clear. He knew of "some" risk, perhaps even a substantial risk, that someone might be injured. However, that might not qualify as actually foreseeing that death might "probably" result. Under the MPC, the result is likely to be the same. Even assuming that there was a "substantial risk" of death, it is not obvious that Daniel foresaw the risk as substantial and therefore "consciously disregarded" it. However, if this part of the Code's test were met, since Daniel was aware that the substance was potentially dangerous to human life, he could be found to have acted under circumstances "manifesting extreme indifference to human life" as required by §210 of the Code. Alternatively, under the common law "felony murder" doctrine, Daniel might be found guilty of murder if his failure to follow EPA disposal methods qualified as a felony. See the next section.

Kyra, a high-ranking police detective, arrests Wayne, a gang member, in his neighborhood where a fatal armed robbery recently occurred in a grocery store and brings him to the police station. She grants him immunity from the use of any confession. Wayne then admits to needlessly killing two beloved members of the neighborhood who owned the store during the robbery. He also identified two other gang members who participated in the robbery. Kyra cannot use his statement as evidence against Wayne. But, knowing that word of his confession implicating other gang members has spread in his neighborhood, she drives Wayne in her marked police car to the corner where the killing took place, and, over his strenuous objection that his life is in danger, tells him to get out. Thirty minutes later, Wayne is killed by his fellow gang members. Can Kyra be charged with homicide?

Clearly, Kyra did not directly kill Wayne — gang members did. Thus, she cannot be convicted of homicide unless proximately causing his death is sufficient in this jurisdiction and the prosecutor can establish it. The prosecutor has at least two theories of responsibility. She would first argue that Kyra proximately caused Wayne's death by deliberately putting him "in harm's way," thereby satisfying the requirement of "but for" causation. Kyra knew that word of his confession had already spread in this neighborhood and that gang members would try to silence Wayne. In addition, Wayne had pleaded with her not to release him publicly in his neighborhood precisely because he knew his life was in danger. Thus, Kyra was subjectively aware that this particular harm, Wayne's death, was very likely to occur and she knew how it would most likely occur — gang members would shoot him. Moreover, as a police officer, Kyra had a duty to prevent Wayne's death and failed to take reasonable steps to prevent this terrible harm. At the very least, she should have released him in a safer location and, even better, given him police protection. Her omission or failure to act together with her duty to prevent this harm is an independent ground for finding proximate causation here. Defense counsel would claim that Kyra acted professionally in obtaining useful information implicating other gang members from Wayne. Kyra only knew that information about her grant of immunity to Wayne and his subsequent confession implicating other gang members had reached some members of Wayne's community. She could not know or expect, nor should she have known or realized, that other gang members would actually kill Wayne. And even if she did, counsel would argue that Kyra was not a "but for" cause of Wayne's death. Wayne's killers might well have shot and killed him regardless of what Kyra did or didn't do. Thus, his death cannot be linked to Kyra's conduct, which is neither a necessary nor sufficient condition for the occurrence of this particular harm. Moreover, Kyra was only obligated to return Wayne back to where she initially arrested him. The police department would be available to protect Wayne on the same basis as it protects everyone living in this neighborhood. Wayne is not entitled to special protection. Thus, the prosecutor's alternative theory — omission and duty — though clever, does not apply because Kyra satisfied any duty applicable to police officers. And even if she did not, her omission was not a "but for" cause of Wayne's death. Under the MPC, the prosecutor would have to prove "but for" causation and then proceed to establish the culpability required by the homicide statute. As noted above, it may be difficult for the prosecution to establish that Kyra's conduct was required before Wayne could be killed. If she is successful in establishing "but for" causation, however, it might be easier to establish criminal culpability (rather than foreseeability) with respect to result here. After all, Kyra knew or should have known that she was risking Wayne's life by returning him to his neighborhood under these circumstances. On balance, it will be very difficult for the prosecution to prove "but for" causation, which is required in establishing criminal causation. Thus, Kyra would probably be acquitted even though she may well have expected this result. The prosecutor might use an alternative theory — accomplice liability — if she could prove that Kyra acted with the purpose of aiding and abetting Wayne's unknown killers. (See Chapter 14 and State ex rel Attorney General v. Tally, at page 435.) This is a real brain teaser. In all likelihood, Kyra knew that she was creating a greater risk and probability that Wayne would die, but her conduct was not essential for the harm to occur. Should this relieve her of criminal responsibility?

Connor, a gang member, is selling drugs to a customer on his street corner. As Raphael, a rival gang member, saunters toward him, Connor uses a stolen gun to fire a warning shot over Raphael's head to scare him out of Connor's turf. a.Raphael is struck in the head by the bullet and almost dies. b.Raphael is struck in the head by the bullet and dies. c.What if Connor intends to kill Raphael, but the bullet only grazes Raphael and he dies anyway from a heart attack partially induced by "ecstasy," a street drug Raphael had just taken?

Connor did not commit attempted murder. Even though Raphael almost died as a result of Connor's intentional act, Connor did not act with the purpose of killing him. His purpose was to cause his rival to leave Connor's "territory." Thus, under both the common law and the MPC, Connor did not commit attempted murder. Of course, we have posited that Connor's mental state is known. Without such evidence, however, a jury is free to conclude that Connor "intended" the result that he almost caused and to convict him of attempted murder. 4b.Because Connor proximately caused the death of another human being who was not a co-felon during the commission of a felony (the drug sale), Connor could be convicted of felony murder even though he did not intend to cause Raphael's death. Unlike attempt, which focuses on the actor's mental state or attitude toward causing a particular result, the felony murder rule imposes homicidal responsibility based primarily on the harm the defendant proximately causes during the commission of a serious crime. (See Chapter 8.) 4c.This is a close one and could go either way. The jury might decide that "ecstasy," the drug voluntarily ingested by Raphael, proximately caused his death and that it was an independent intervening cause. (See Chapter 7.) If so, then Connor can be convicted only of attempted murder because, even though his purpose was to kill Raphael, he did not cause that result. While the fright caused by Connor's warning shot may have contributed somewhat to Raphael's death, his death was caused primarily by his own voluntary conduct. Thus, the felony murder rule would probably not snare Connor. The moral? Don't forget to analyze both mens rea and causation on those tricky law school exams!

Haylee, who is 9 years old, breaks into an elementary school and steals food from the cafeteria. While in the school, someone sees Haylee and yells after her. Haylee immediately runs away. By the time she escapes the elementary school, the police have shown up and catch her fleeing. At first, when the police ask if she had broken into the school, Haylee lies. When she finally admits that she did, the police ask her whether she knows what she did was wrong, to which Haylee responds with, "I guess." Soon the police discover that the year before, Haylee had been transferred to juvenile court for breaking into someone's home. Should Haylee be tried as an adult? What facts are most relevant?

Depending on the state, Haylee will likely be presumed to be incapable of committing a crime; however, the prosecution may rebut the presumption by presenting evidence that she had the capacity to understand the criminality of her conduct. First, the prosecution may note that Haylee attempted to conceal her criminal conduct by fleeing and lying to the police about what she had done. At the same time, when asked about the wrongness of what she did, Haylee did not admit she understood it to be wrong. Rather, she responded with, "I guess," which may be an indicator that Haylee did not really appreciate that her conduct was wrong. Nevertheless, Haylee's past conduct of breaking into a home may show that she knew what she was doing was wrong because she had been punished for similar behavior in the past. Still, the crime at issue was not violent; she did not cause bodily harm to anyone, so the court may be more inclined to permit adjudication of the crime in juvenile court to focus on the Haylee's rehabilitation, particularly given Haylee's age. The court (or prosecutor) may also consider the reason for her theft and her family situation in determining whether there was a lack of food at home or other difficult circumstances and not bring a charge at all. Under the MPC, Haylee would have a defense of "immaturity" because she is under the age of 16. Her case would be handled in juvenile court.

Emily purchases a white powder in a small glassine envelope from a friend. She is told and believes (reasonably) that it is sugar. Guess what? It's not. Is Emily liable for possession of a controlled substance?

Emily clearly did not have any mens rea as to possession of a controlled substance, so she will only be liable if this is a strict liability crime. There is no clear legislative intent to impose strict liability, so we must first determine if there is an argument to urge a court to impose strict liability anyway. Emily undoubtedly violated a "material element" when she was in possession of a controlled substance. Moreover, there is no mens rea word (purposefully, knowingly, etc.) that would give us any indication that mens rea is required. Therefore, the prosecutor's best argument will be that strict liability should be imposed because possession of a controlled substance is not a common law crime and the maximum sentence is relatively light. If the court agrees with this argument, then Emily's subjective thoughts do not matter and she is responsible for the crime. The answer in an MPC jurisdiction would be simple: Since there is a possibility that Emily can be sent to prison, there is no strict liability and Emily is off the hook. As an aside, the real-world answer to this would depend, incredibly enough, on when the event occurred. Prior to 1970 or so, virtually every state — following the Uniform Narcotic Drug Act suggested in 1932 by the Conference of National Commissioners on Uniform State Laws — held that drug crimes, including possession or sale, could be prosecuted on a strict liability basis. The defendant's belief, no matter how reasonable, about the nature of the item was irrelevant. In 1970, the Commissioners revised their view and required mens rea. Within 15 years, every state had followed this lead, either legislatively or judicially. Whether this had to do with possible increased punishments, or a sense that drug deals were now "mala in se" rather than "mala prohibitum," or for some other reason is unclear. So, in reality, Emily stays home, even under the common law.

Bjorn is driving his van through a 60 m.p.h. zone. He sets his cruise control at 58 and takes his foot off the pedal. The control malfunctions, and the car's speed slowly rises to 72. It sticks there, and Bjorn carefully darts in and out of traffic, honking his horn as he goes. He finally pulls over and pulls out the ignition key, stripping the gears and causing $6,000 damage to his van. At that point a friendly state trooper points out to Bjorn that haste makes tickets as well as waste. The maximum penalty for speeding is $500. The maximum penalty for reckless driving is 30 days' imprisonment. Is Bjorn guilty of both these offenses? Or of either?

Even assuming that the malfunction of the cruise control occurred for the first time and was a complete surprise, Bjorn is likely to be found strictly liable of speeding, primarily on the flood-of-cases rationale, but also due to the potential harm involved. This will be true even if Bjorn just had had his car, including the cruise control, checked and serviced 10 minutes before the event. Tough luck, Bjorn. Next time, don't be so decadent. Bjorn's best argument is that he was not driving, not that he was not speeding (no actus reus). He is not reckless — the chances that the control would stick are not "substantial." The Model Penal Code would allow strict liability if the charge is speeding. However, Bjorn would not be guilty of the reckless driving charge because imprisonment is possible. The state would have to prove recklessness, which under the Code requires a subjective awareness of the risk of committing the crime (in this case speeding). Note: This is a real case. State v. Baker, 571 P.2d 65 (Kan. App. 1977). However, the court's analysis in Baker is not technically based on strict liability. It distinguished two earlier decisions in which drivers involved in accidents because of failing brakes and failing throttles were not held strictly liable on the grounds that those items were "essential" to the operation of a car, whereas a cruise control was not. Perhaps using cruise control is simply too decadent.

The next day, Penelope calls Rachel, her cocaine supplier, on the telephone to arrange for the purchase of a large amount of cocaine on credit, but Rachel does not answer.

Even in those jurisdictions that require an overt act, both Heather and Penelope can be convicted of conspiracy because Penelope acted to implement their criminal agreement by calling her supplier in an attempt to secure drugs on credit. Even though it is an innocent act that does not provide strong evidence of criminal intent and even though it did not move the conspiracy any further along the path of implementation, making the telephone call at least demonstrates that the conspiracy has moved beyond intention to action. The defendants will argue that, because Penelope did not actually talk to Rachel, the telephone call should not be considered an "overt act in furtherance of the conspiracy." This argument will probably not succeed. Unlike attempt, there is no requirement that the overt act come close to committing the target offense or even strongly corroborate the actors' criminal purpose. Thus, both Heather and Penelope can be convicted of conspiracy. This particular example illustrates that the "overt act" requirement for conspiracy often does not provide very strong evidence establishing either firmness of criminal intention or significant implementation of the criminal plan.

Courtney learns she can make a small fortune dealing prescription drugs. Courtney's sister Anna works as a medical assistant at a doctor's office. Courtney asks Anna to steal a doctor's prescription pad so that Courtney can write forged prescriptions. Courtney promises Anna twenty percent of the profits made through this drug dealing venture if Anna succeeds in obtaining the prescription pads. Anna agrees to Courtney's plan and obtains a prescription pad. However, before turning the prescription pad over to Courtney, Anna decides she could keep all of the profits if she continues on alone. Anna never gives Courtney the prescription pad.

Even though Courtney cannot complete the crime of selling prescription drugs because Anna did not follow through, Courtney can still be charged with conspiracy. Courtney planned and agreed with Anna to commit this crime. The focus in a conspiracy analysis is the agreement, not whether both parties followed through as agreed, or whether the crime was completed. No defenses will be available to Courtney. Common law does not allow for the defense of abandonment. The MPC does allow a defense of renunciation, but Courtney has not renounced the crime. She did not voluntarily abandon her objectives; rather, Anna excluded Courtney from achieving her objective. Further, Courtney never withdrew from the crime. She intended to complete the crime, but again, Anna excluded Courtney from this venture. So the defense of withdrawal under both common law and the MPC will not be available to Courtney.

Laurie and Michael are the last two contestants for a major job opportunity. Laurie, wearing a ski mask, kidnaps Michael and puts him in a locked room. She has provided two weeks' worth of food in a refrigerator and freezer. The room is escape proof. She tells Michael that he will be released in seven days. She has also pre-timed a set of videotapes, so that Michael will see one each day, assuring him he would be released. On the fourth day, Laurie gets the job in part because Michael is not able to make the final interview. a.After landing the job, Laurie writes an anonymous and nontraceable e-mail to the police, telling them where to find Michael. Unfortunately, just as she is about to press "Send," she is struck by a car and goes into a coma; her computer is totally destroyed. She awakens two weeks later, and immediately shouts, "Find Michael!" and gives the location. Michael is dead when the police arrive. b.The videotape for the seventh day told Michael that the key to the room was in ice cubes in the freezer, so that he could escape on that day. Unfortunately, Michael became so despondent over the situation, believing it to be hopeless, that he killed himself on the fifth day. Is Laurie a murderer in either, both, or neither of these scenarios?

Even though she didn't intend Michael's death, Laurie is clearly a "but for" cause of Michael's death. But was her heart "malignant and abandoned"? Kidnapping someone is no laughing matter. But her steps suggest that she did not disregard a substantial risk that Michael would die. On the other hand, there are a million ways in which Laurie could become unable to inform the police of Michael's location. A jury might well infer a bad heart (or mind) or a "conscious disregard" of the risk that Michael would die, sufficient to satisfy either a charge of first-degree murder under the common law or murder under the MPC. This is a jury question, but it is very likely that a jury would convict Laurie. This is a version of the Stephenson case, discussed in Chapter 7 on causation. In that case, and similar ones, the defendant was found liable when the victim committed suicide. But in those cases, the defendant did "more" than kidnap — rape or other personal injury was involved. Here, again, even if Laurie is found to be the "proximate cause" of Michael's death, the question of the level of her liability (manslaughter or murder) will depend on whether the jury finds that she had the relevant mens rea. In the rape-suicide cases above, it is easy to envision that a victim might seek any form of escape. But here, Laurie has given Michael food for two weeks, and promised release in a week (which she intended to observe). Probably not murder. Whether she was "reckless" (voluntary manslaughter) or "criminally negligent" (involuntary manslaughter) or guilty of felony murder is another matter —

Gus and Lynn are devout Christian Scientists. When their three-year-old daughter is diagnosed with leukemia, they steadfastly refuse to allow any treatment, confident that God will save their child. Tragically, she dies. Have Gus and Lynn committed manslaughter?

Every year there are news reports of such events, and prosecutors usually do not prosecute, either themselves infusing the RPP with the religious beliefs of the defendants, or assuming that at least one juror will do so if the case goes to trial. Even if the RPP should not be attributed with such a belief or trait, jurors often do so. Of course, there is, as well, the issue of whether a court could order life-saving treatment,47 but that is a First Amendment, not a criminal, question. Some states deal expressly with the issue. On the other hand, if the parent has no religious reasons for failing to provide treatment, but just fails to do so, there is at least manslaughter or criminally negligent homicide.48 The leading case is Comm. v. Twitchell, 416 Mass. 114 (1993). Allison Ciullo, Prosecution Without Persecution: the Inability of Courts to Recognize Christian Science Spiritual Healing and a Shift Towards Legislative Action, 42 New Eng. L. Rev. 155 (2007). Of course, if the neglect is not based on spiritual beliefs, the issue is entirely different. See, e.g., http://www.courttv.com/graphics/13th/shim.gif (second-degree murder where parent failed to provide insulin to an 11-year-old diabetic daughter).

Zephyr and Magnus are brothers. Since they were young, they have had a tense relationship; Magnus, the older of the two, used to physically and emotionally abuse Zephyr. The two brothers had a falling out when Zephyr stood up to Magnus's bullying one day. Years later, Magnus divorced his first wife with whom he has four kids. Magnus has continuously failed to pay child support since he divorced his wife. He expressed to Zephyr that he wanted nothing to do with his kids, even after his ex-wife died of breast cancer. Zephyr thought this was unacceptable since the four kids would be separated in the foster care system, so he told Magnus not to worry — he would adopt the kids. Magnus, thinking that Zephyr was after the child support money, threatened his brother, telling him that if he adopted the kids, Magnus would "shoot [him] in the head." Magnus thought the threat had been enough to convince Zephyr to change his mind, but a few months later he heard that his brother had, in fact, adopted his kids. In a fit of rage, Magnus drives to his brother's home in the middle of the night to teach him a lesson. Zephyr is awoken by the headlights shining into his home and looks outside to see his brother. Zephyr knows that Magnus is a big gun enthusiast with dozens of rifles and handguns and believes that Magnus is there to shoot him in the head like he threatened, so he fetches his revolver from the closet. Zephyr tells his wife and kids, who are now awake, to stay inside. He walks outside onto his porch and sees Magnus walking toward him. Yelling, "Stay back — I will shoot you!" Zephyr points the revolver at Magnus. Magnus, who is unarmed, runs back to his vehicle, where he grabs his own revolver from the glove compartment. Magnus fires two shots at Zephyr, missing both times. Zephyr returns fire, striking Magnus three times in the chest. Magnus dies instantly. a. Does Zephyr have a claim of self-defense? b. Now imagine that instead of missing, Magnus shot Zephyr, killing him. Does Magnus have a claim of self-defense?

First, there is an issue of whether Zephyr reasonably believed he was in danger. Zephyr will argue that his response to Magnus was reasonable, both objectively and subjectively, particularly because Zephyr did not shoot until Magnus fired at him. Zephyr will want to introduce evidence of the brothers' strained relationship, especially how Magnus used to abuse him physically. This is similar to the "battered wife" argument, but with some meaningful differences: The brothers were largely estranged from each other; there was no cycle of abuse taking place. Still, Zephyr has a good argument for self-defense. He will argue that Magnus's past treatment of Zephyr, combined with Magnus's threat to shoot him if Zephyr adopted his kids (which he did) and the fact that Magnus has the means to do so — i.e. multiple different firearms — shows that he was reasonable to believe that Magnus presented a serious, even potentially lethal threat to him. Perhaps shooting at Magnus right away would have been unreasonable, but Zephyr waited; he warned Magnus, telling him to "stay back," and refrained from shooting until Magnus fired at him. But was Zephyr really reasonable? Sure, Magnus had threatened him and he owned firearms, but Magnus and Zephyr are brothers. Is it reasonable to believe your brother would murder you, even if he had physically abused you in the past? The prosecution will make a number of additional arguments that Zephyr cannot claim he acted in self-defense: (1) Zephyr could have retreated, (2) Zephyr had an alternative option to using force and, by confronting Magnus on the porch, Zephyr contributed to the creation of the dangerous situation that compelled him to shoot Magnus. First, the prosecution will argue that Zephyr could have retreated, even though he was on his porch. Some states do not require retreating where it is into the home or curtilage (like a porch); however, if it is a minority jurisdiction that requires defendants to retreat even from their curtilage into the home, the prosecution may have a strong argument. If the jurisdiction has adopted a "stand your ground" law, this argument will not go far. Under a "stand your ground" law, like the one found in Florida, there is no requirement to retreat from a location where the defendant has a right to be. Zephyr will argue that he has as much right to be on his porch as he does to be in his home. Second, the State will argue is that Zephyr is not entitled to a claim of self-defense because he had other options and was culpable in bringing about the situation that resulted in Magnus's death. Zephyr created the dangerous situation when he saw Magnus outside his home and, instead of calling the police and/or simply ensuring his doors were locked, he chose to leave the confines of his home and confront Magnus with a firearm. This is likely the State's strongest argument. Zephyr could argue that perhaps he was not reasonable to believe Magnus would kill but he was reasonable to believe that Magnus would cause him serious bodily harm because of his history of physically abusing Zephyr. Still, Zephyr will run into an obstacle when trying to explain away why he chose to confront Magnus instead of calling the police. Even if the jurisdiction does not apply the fifth element requiring the defendant to not have been culpable for creating the dangerous situation, Zephyr will be hard-pressed to prove he had no other alternative than using force. Does it matter that he did not fire his revolver until Magnus fired at him? 19b.Magnus could claim that he acted in self-defense by shooting Zephyr. He could assert that when Zephyr pointed his revolver at him, Magnus reasonably believed his life was in danger. However, this may be a hard sell. Zephyr had shouted he would kill Magnus but he also shouted, "Stay back," implying that shooting Magnus was conditional on him continuing forward toward Zephyr. The prosecution will argue that this shows that Magnus had another option, that he could have retreated safely, and that his decision to shoot Zephyr was unreasonable. Additionally, the prosecution will argue that Magnus did not act in self-defense because he was the aggressor and as the aggressor, he has no right to a defense of self-defense. Magnus had threatened Zephyr months prior and upon hearing that his brother had adopted his kids, Magnus drove to Zephyr's house to "teach him a lesson." Still, this is not as clean cut as it could be; who is the aggressor here? Is it really Magnus? Is it Zephyr?

Harry buys the National Enquirer every week from Joe, the neighborhood grocer. This week, discovering to his chagrin that he did not have enough money, Harry took the paper without telling Joe, but intending to pay Joe the next time he visited the store. Has Harry committed any property crime with regard to the paper?

First, which kind of crime is this "potentially"? Since Joe didn't know of the taking, he did not intend title to pass. Thus, it cannot be false pretenses. Moreover, since Joe didn't "entrust" the paper to Harry, it is not embezzlement. Thus, if anything, it is larceny. But Harry has probably not committed larceny. Because the item was for sale, and Harry did intend to pay for it, he did not have the "animus furandi" required by the law. (This is the American rule: English courts generally see this case as larceny.) The Model Penal Code has a subsection that deals expressly with items of property "exposed for sale." The section adopts the American view and provides that if a defendant took such an item, "intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented," there is no theft.

Frank and Mark went to an ATM to get cash. Frank used his ATM card to withdraw $40. After Frank inadvertently pushed the "Enter" button a second time, the machine gave him $80, but his account only reflected a $40 deduction. Frank said: "WOW! Two for one! I asked for $40 and got $80 and my account is down only $40. You can't beat that. I mistakenly pushed the 'enter' button a second time." Mark, until then unaware of what had happened, inserted his card and, instead of withdrawing $50 as planned, withdrew $400. He pushed the "Enter" button a second time. The machine gave him $800, while his account only reflected a $400 deduction. Frank and Mark then returned to their dormitory and told Chris all about this magical machine. Chris went to the ATM and withdrew $1,000. It gave him $2,000, while his account only reflected a $1,000 deduction. Is Frank, Mark, or Chris responsible for any crimes committed by each other?

Frank, Mark, and Chris are each responsible for their own withdrawal and each may face a criminal charge of theft if they do not return the extra cash or tell the bank. (See Chapter 10.) Frank and Mark were both present when the other obtained the extra cash. Generally, being present with the knowledge that someone else is committing a crime is not sufficient for accomplice liability unless the individual is there for the purpose of encouraging a crime or unless the principal knows that the individual is willing to help if necessary. Here Mark did not know what Frank had done until after Frank had obtained the extra cash. Thus, Mark is clearly not responsible for any crime Frank may have committed. Frank, however, told Mark what happened and provided Mark with essential knowledge about how to obtain extra cash. Mark, relying on that information, increased his withdrawal significantly and also received a double payment. But did Frank tell Mark what happened and provide him with vital information on how to obtain an extra payout with the intent to encourage Mark to commit a crime? If the prosecution can prove that Frank did have this purpose, then Frank could be convicted as an accomplice and would also be responsible for Mark's crime. In most jurisdictions, merely providing useful information without intent to encourage another person's committing a crime does not suffice for accomplice responsibility. The MPC also requires purpose. This will be a close case. The same analysis applies to Frank's and Mark's responsibility for Chris's crime. It may be easier for the prosecution to prove that they did act with the purpose of encouraging Chris to commit a crime because they sought him out and provided the information necessary to improperly obtain extra cash. What do you think the result should be?

Gunter, a salesman, was driving along a road using his talking GPS to direct him to a company he had never been to before. Suddenly, the friendly voice of the GPS said, "Turn right now." Gunter did, running over a curb and getting stuck on a light-rail track. A few minutes later a light-rail train struck his stuck car and several people were injured. Actus Reus?

Gunter would argue that he did not commit a voluntary act. He simply obeyed the command of the GPS, assuming it knew a safe route. The prosecution would argue that Gunter still had a choice to turn or not to turn. Moreover, Gunter had to deliberately move the wheel so his car would make the necessary course adjustment. Gunter had no right to delegate important decision-making over a moving car to a machine. The prosecutor should prevail. But what if this were a self-driving car? Now that would be a different story.

Linda and Brad are married. Unknown to Brad, Linda robs a bank by herself and comes home with a lot of money. She tells Brad of her accomplishment and asks him to throw the gun she used in the robbery in a deep lake. Brad gladly disposes of the gun as requested.

At common law, Brad would not be liable as an accessory after the fact. Both husband and wife were expected to help each other avoid conviction if a spouse committed a crime. In most jurisdictions today, Brad would be convicted of rendering criminal assistance or criminal facilitation. There is no defense for a spouse or relative who knowingly helps someone who has committed a crime avoid apprehension or conviction. Some jurisdictions, however, will reduce the degree of the offense if a spouse or relative is involved and only provides certain kinds of assistance.

Senator Duck Chainsaw was bird hunting with his rich buddies. Thinking he heard a flushed quail, Duck turned quickly and shot at a moving target. Unfortunately, he shot Daddy Warbucks in the chest. Duck told Daddy he would get help immediately, but first he called his chief political adviser, King Kove. Kove told Duck to treat the wound himself rather than summon medical aid, because the publicity could be very damaging to his upcoming reelection campaign. Duck and his buddies bandaged the wound, but the bleeding did not stop. Two hours later Duck called for an ambulance, which arrived in 15 minutes. Unfortunately, Daddy died on the way to the hospital. Daddy would have survived if the ambulance had been called right after the accident. Actus Reus?

Duck is not criminally responsible for the accidental shooting of Daddy. Because he caused the injury to Daddy, however, Duck had a legal duty to summon medical aid immediately. Duck's failure to provide medical assistance to his victim was an omission that caused Daddy's death. Duck can be convicted based on his inaction.

Darrell, a bank executive, has spent the last 20 years of his life writing his version of the great American novel. He has only one hard copy of the manuscript, which is now 98 percent complete. Douglas steals the one existing hard copy of the manuscript and erases the original from the hard drive. He tells Darrell that he will destroy the piece unless Darrell gives Doug the combination to the bank vault. Darrell, after much agony, complies and is charged with theft.

Even if a reasonable person in Darrell's position would give the key to Douglas, the common law would not allow Darrell a claim of duress to a charge of being an accomplice, since the threat is not one of serious bodily harm or death. The Model Penal Code would similarly disallow a duress claim and for the same reason. Poor Darrell. We told you to always have a backup copy.

Helen, a burglar, has decided to burglarize a warehouse. She has "cased" the place for three weeks and is sure that everyone leaves by 10 p.m. On the night in question, she double-checks the parking lot and waits until 2 a.m., just in case anyone has stayed late. She then breaks in to the building by smashing a window and jumping through. As she lands, her foot hits the windpipe of Harry, a homeless person who has sneaked in through the back door and is sleeping there. Harry dies. Has Helen killed Harry "purposely, knowingly, recklessly, or negligently"?

Helen is surely not guilty of any kind of homicide that requires a mens rea. Her care that there be no one present demonstrates that she did not even consider that there was a risk, much less consciously disregard such a risk, that injury, much less death, could result from the burglary. She took every precaution that injury would not happen. Moreover, given all the circumstances, it is hard to say that she was "negligent" or criminally negligent with regard to the risk of death. Caveat: In Chapter 8, we will discuss Helen's possible liability under the felony murder doctrine, which does not require mens rea of any kind as to a death occurring during a felony.

Same facts, except that Hortense dies because she is negligent in fighting the fire.

In common law and under the MPC, the victim's negligence is relatively unimportant in any crime and particularly in a felony murder. The only opportunity for Larry here is to argue lack of causation (see Chapter 7).

Sybil is 22 and suffers from dissociative identity disorder (DID). Physically and sexually abused by her mother during childhood, she has developed several different identities to cope with this stress. Each of these identities is a well-integrated personality (with its own pattern of perceiving, relating to, and thinking about the environment and one's self) within the primary or "host" personality. Each personality may at various times take full control of the individual's behavior. One of Sybil's alter egos, Bridget, is particularly troubling to Sybil's psychiatrist because Bridget is a pyromaniac, always setting fires. In fact, the psychiatrist has forced Gilda, another personality or alter ego, to stop smoking. The doctor does not want to risk that Bridget will emerge and find matches on Sybil's person. Sybil, the host personality, does not smoke. Much to her psychiatrist's dismay, Sybil is finally charged with arson for burning down a garage. Sybil, the host personality, doesn't recall the event at all. When the government psychiatrist talks to Bridget, she admits that she set the fire on purpose. "I knew it was against the law, but it looks cool!" Bridget is not remorseful about this act, and she understands that Sybil will go to prison. As prosecutor, you must decide whom to charge and whether you can convict Sybil for what Bridget did.

Now this is an interesting case! If one of the personalities within an individual suffering from DID knows what she is doing and appreciates that the conduct is criminal, can the "host" or "dominant" personality be held accountable for the actions of this other "alter" personality? One federal district court said no. The host personality must appreciate the wrongfulness of the conduct that is under the control of the alter personality. The court held that the insanity defense must be presented to the jury, even though the "acting" personality was not insane at the time of the offense.52Thus, Sybil cannot be found guilty of the crime committed by Bridget because Sybil did not know what Bridget was doing or that it was wrong. The fact that Bridget, an alter ego, did know what she was doing and that it was wrong will not impose criminal responsibility on Sybil. Criminal responsibility depends on the mental status of the host personality. Note, however, that some jurisdictions take a contrary approach and assess responsibility on the personality that is in control at that time53 or refuse to recognize the defense altogether.54 In jurisdictions that focus on the personality in control, the defense might prevail with an insanity defense if it uses the ALI test. Pyromania is a recognized impulse control disorder that substantially interferes with an individual's capacity to obey the law. Thus, "Bridget" may be successful pleading insanity.

Hal, tired of living, jumped off the top of a 15-story office building. Just as Hal was passing by the twelfth floor, Julia, angry that her boyfriend, Chet, was leaving her, fired a pistol at him intending to kill Chet. Fortunately, Chet moved and the bullet missed him. Unfortunately, it went through the window of the twelfth-floor apartment, killing Hal instantly in mid-flight. The prosecutor has filed a murder charge against Julia. Is she guilty?

Hal would have died in a few seconds, and he certainly would have been the direct cause of his own death in that event. Nonetheless, Julia has directly caused Hal's death because it was her shot that actually ended his life. Thus, under the common law, her intent to kill Chet is "transferred" to Hal (see Chapter 4) and she can be convicted of intentional homicide. Even though the chance of Julia's shot hitting anyone else (let alone killing anyone else) other than Chet was a million in one, her actions satisfy the common law's causation requirement. Under the MPC, a jury could conclude that Julia has caused Hal's death because her errant shot caused the death of a "different" person than she intended. Because Julia has brought about a harm equal to the one she intended (the death of a human being), conviction and punishment would not be disproportionate to the harm she intended to cause. However, the MPC would also allow the jury to conclude that she did not cause Hal's death. The jury might decide that the causal mechanism of his death (Julia's shooting at Chet and killing Hal) was "too remote or accidental" to have a "just bearing" on her liability. What are the odds of anyone dying in this manner? And yet, Julia surely intended to kill someone. Should attitude or harm be more important? How would you vote as a juror?

Now assume that Harold is told by a friend that if he installs a unit that has a rating of more than 500 BTUs, he must obtain a building permit. Careful not to break the law, he calls the local housing authority and speaks to a Mr. George Pepper. Mr. Pepper tells him that the limit is not 500, but 1,000 BTUs. Harold puts in a unit of 450 BTUs, only to learn, to his horror, that the limit is actually 400 BTUs. The violation is a felony. May Harold successfully defend his actions if prosecuted?

Harold still loses at common law, unless Pepper's misstatement could be found to be intentional, in which case, under a very few scenarios, the government might be "estopped" by Pepper's words from prosecuting Harold. Under the Model Penal Code, Harold will still have virtually no chance of exculpation. Although he relied, perhaps reasonably, on Pepper's words, those words have never been reduced to a written interpretation, which the Code requires before a defendant can claim reasonable reliance on a misstatement of the law. Harold will just have to sweat this summer out — hopefully not in the cooler.

Bert also grabs the golf club and flings it into nearby bushes, hits Jack, runs to his car, and attempts to lock the door. Jack pulls Bert out and hits him several times in the face with his fists.

Since Jack was the initial aggressor, he cannot respond to Bert's use of force. Moreover, it appears that Bert has attempted to withdraw. Jack has no claim of self-defense.

Julio, a guard at a federal prison, is charged in state court for carrying, while off duty, a weapon in a grocery store in violation of a state law. He argues that the state statute allows "peace officers" to carry a weapon, and that he carried the weapon in reliance upon the wording of the statute. If Julio is not, as a matter of statutory interpretation, a "peace officer" within the meaning of the statute, is he guilty of the crime?

Held, in People v. Marrero, 69 N.Y.2d 382 (1987): Julio is guilty, both under the common law and under the state's version of the Model Penal Code. The opinion, which is scathingly criticized in Comment, 54 Brook. L. Rev. 229 (1988), rejected any weakening of the ignorantia lex rule because "Any broader view fosters lawlessness." Under the MPC, which is somewhat different from New York's version, Marrero will still be guilty, since §2.04(3) does not allow mistakes of law that are simply the defendant's personal misinterpretation of law; only official (mis)interpretations, reasonably relied upon, are relevant. Prof. Kahan has argued that Marrero was properly convicted because he was looking for a "loophole" rather than legitimately believing he could carry the gun into the bar. See Dan Kahan, Ignorance of Law Is an Excuse — but Only for the Virtuous, 96 Mich. L. Rev. 127 (1997).

Osama purchased, at $4.00 a pack, several packages of Marlboro Lights. He then resold them to Gregory for $6.00 per package. Osama is charged with violating subsection (2) of the following statute: "Whoever 1.makes a first sale of unstamped cigarettes; 2.sells, offers for sale, or presents as a prize unstamped cigarettes; or 3.knowingly consumes, uses, or smokes cigarettes taxed under this chapter without a stamp affixed to each individual package is guilty of a misdemeanor." The offense carries a maximum $4000 fine and a jail term of up to 1 year. The indictment does not charge any mens rea. Osama moved to quash the indictment. What result?

This is a real case. State v. Abdallah, 64 S.W.3d 175 (Tex. App.-Fort Worth 2001). The first issue is a matter of statutory construction — does the presence of a specific mens rea in §(3) imply that there is no mens rea required to violate §(2)? Given the presumption that there is always a mens rea, the court in Abdallah proceeded to discuss whether this offense could (or should) otherwise be a strict liability offense, in which case the absence of a mens rea word in §(2) might be persuasive. But the court, in a careful opinion, then examined each aspect of the crime: (a) whether there was a risk of serious harm to the public; (b) the legislative history and the severity of the punishment; (c) defendant's ability to ascertain the facts; and (d) the number of expected prosecutions, and concluded that this statute should not be interpreted as establishing a strict liability offense. There might be some argument here because subsection (1) appears to punish even the first offender, whereas subsection (2) seems to deal with a "second offender," but the court rejected that suggestion. A later decision, State v. Walker, 195 S.W.3d 293 (Tex.-Tyler App. 2006) applied Abdallah to a charge of filing for record an unapproved plan for real estate development to reject strict liability there, as well.

Abbie enlists in the United States Army in November 2002. Six months later, while stationed at Ft. Riley, Kansas, he is ordered to a post in Iraq. Convinced that the invasion of Iraq constitutes a war crime, he leaves Ft. Riley and appears on numerous television shows condemning the war and denying its legitimacy. Three months later, he returns to Ft. Riley. He is charged with "desertion with intent to avoid hazardous duty and shirk important service." He seeks to introduce evidence that he wished to protest the Iraq war, not to avoid hazardous duty. May he do so?

Held, in United States v. Huet-Vaughn, 39 M.J. 545 (1994): yes. While motive is not relevant to whether Abbie "deserted," it may be relevant to the actual charge, which requires the government to prove that his "specific intent" (reason) was to avoid hazardous duty. It is possible that this holding may be limited to military law, and may not apply to civilian law, but the military court in this case cited many non-military decisions. Indeed, the court found that there was enough evidence to support the lesser (general intent) charge of being absent without authority.

Riffi is charged with intentionally (purposely) running down and killing Constantine. Riffi argues that Constantine was a complete stranger, and that the death was an accident. The prosecutor seeks to introduce evidence that Riffi is of Armenian background, and that Constantine is Turkish American. The prosecutor's theory is that Riffi is seeking revenge on the Turks for the genocide committed against the Armenians in the early twentieth century. Riffi argues that motive is not relevant to the criminal law, and that the evidence should be precluded. Riffi is charged with intentionally murdering Constantine. Riffi wishes to introduce evidence that Constantine is the lead hit man of the "Turkish mafia," and has personally killed 25 people. He argues that his motive should suggest that the killing was not socially undesirable. What result?

If evidence of motive is relevant in (a), surely it's also admissible here — right? No. Riffi's claim does not dispute that he killed Constantine intentionally — only "why" he did so. And while his motive may well be considered in assessing Riffi's sentence (although taking the law into one's own hands is rarely considered mitigation even in sentencing), it's not relevant to his guilt (consider, as well, that once again Riffi's motive supports the prosecution claim of intentionality).

Hubert is walking down the street when he is confronted by Lyndon, who pulls a knife, drags Hubert into an alley and demands money. Hubert pulls out an Uzi and kills Lyndon.

This is the classic case of self-defense. Hubert is the innocent victim of an unprovoked felonious attack. He is clearly justified in killing Lyndon. Even in a jurisdiction requiring retreat, there is no apparent way for Hubert to retreat safely. Deadly force can respond to deadly force — even an Uzi to a knife.

Suppose, instead of threatening to destroy the manuscript, Douglas threatens to kill Shadow, Darrell's five-year-old golden retriever, whom Darrell rescued as a pup and has cared for ever since.

While we dog lovers may become deeply emotionally attached to our pets, Shadow is only "property" under the law, and a threat to her life is insufficient to raise a question of duress, even under the Model Penal Code. Wait, Darrell! Don't pack for prison yet! Even if you don't have a claim of duress, you might have a claim, at least under the MPC and possibly even under common law, of necessity. If the jury felt that your decision was the "right" one — that is, balancing all the interests, the lesser of two evils — you might be exonerated.

Brent and Teresa had been dating for over a year, but had recently broken up. Extremely upset, Brent followed Teresa in his car after seeing her at a club. Brent had been drinking and was driving aggressively. Afraid, Teresa returned to the club to get help. She told the doorman about Brent. He came outside and asked Brent to leave. Brent drove straight into Teresa's car. He was charged with DUI and with the intentional destruction of another's property. Brent argues that he was unable to control his vehicle because of his intoxication and that his collision with Teresa's car was an accident. Does it matter if this state does not allow evidence of voluntary intoxication to negate a mens rea element?

If the state follows the Montana approach and excludes evidence of voluntary intoxication in determining mens rea or a culpability element (unless intoxication is an element of the charged offense), it will be much easier for the prosecutor to persuade a jury that Brent did, in fact, intend to damage Teresa's car. The jury could likely infer "intent" based on his conduct leading up to the incident without being allowed to consider the effect of his alcohol consumption on his judgment, perception, and motor skills. If, however, the state allows evidence of voluntary intoxication on the issue of mens rea or culpability, then Brent could introduce evidence of his drinking just prior to the event to support his claim that his collision with Teresa's car was accidental rather than intentional. Ironically, even in a state that excludes evidence of voluntary intoxication on mens rea or culpability, the prosecutor could introduce evidence of Brent's drinking to prove that he was "driving under the influence" of alcohol because intoxication is an element of the charged offense. Thus, in some states, the prosecution could use this evidence to convict Brent of the DUI charge, while preventing Brent from using the same evidence to negate the mens rea of the intentional destruction of property charge. Is this consistent, logical, or fair?

Bishop Olson assigned Pastor Lothar to his fourth new congregation in six years. Yet another series of numerous, verified complaints about Pastor Lothar touching young children in an inappropriate manner in his current parish necessitated this new assignment. Bishop Olson did not inform the police of these allegations, nor did he inform any member of the new congregation about them. Shortly after taking up his new position, in which he had daily contact with young children, Pastor Lothar was arrested and convicted of sexual battery of two young children. Can the prosecutor bring any charges against Bishop Olson?

If there is a statute requiring clergy to report to the police known or suspected cases of child sexual abuse, Bishop Olson's failure to comply would satisfy the actus reus of a crime. Note that it would not be an "omission" because the bishop did not do what the statute expressly requires. His failure to report would be similar to not filing an income tax return when required by law. If there is no criminal statute imposing this duty on clergy, then the bishop's failure to report is a true "omission," which does not generate criminal responsibility unless there is a legal duty to report imposed elsewhere in law. Although he has a strong moral duty to report these past cases, the criminal law does not enforce every moral obligation. The prosecutor might argue that because of his status, Bishop Olson is under a legal duty to prevent Pastor Lothar from committing future sex crimes against children. Again, this would depend on whether there is a duty in civil law to take such action. If there is no such duty, Bishop Olson's failure to act is not a crime.

Luke, drunk as a skunk, crossed over into the oncoming traffic lane, slamming his macho SUV into a car driven by Rebecca, who suffered devastating injuries, including a spinal column fracture that caused paralysis from the chest down, broken ribs and hip, brain damage, and recurring infections. Unable to breathe on her own, Rebecca was placed on life-support systems in a hospital for several weeks. Before the accident, Rebecca had made it clear that she did not want to live on life support, and during lucid moments after the accident, she made it apparent that she did not want to live in this condition. Rebecca requested that she be removed from life support. Her request was honored and she died shortly thereafter. Did Luke cause Rebecca's death?

Luke is clearly the "but for" cause of Rebecca's death. Had he not driven while intoxicated and recklessly crossed into her lane, she would not have been severely injured and required life support. Thus, his conduct started a chain of causality that resulted in Rebecca's death. But should her removal from life support be characterized as a dependent or independent intervening cause of her death? Under the common law, the defense will argue that removing life support caused Rebecca's death and that removal was so unexpected and out of the ordinary in relation to Luke's conduct that it was an independent intervening cause. Moreover, the defense will point out that Rebecca was a competent and responsible decision maker who, in effect, ended her own life. In a MPC jurisdiction, the defense will claim that Rebecca's death was too dependent on another's volitional act, that is, Rebecca's own decision to discontinue life support, to have a "just bearing" on Luke's liability. The prosecutor will respond that this jurisdiction recognizes an individual's right to refuse medical treatment and, consequently, Rebecca's decision cannot be considered unexpected or extraordinary. Physicians had no duty or right to continue life support in this case. Thus, stopping life support was clearly foreseeable. Moreover, Luke's conduct generated the need for life support in the first place, so its removal is not the cause of Rebecca's death. It simply allowed fatal forces already at work to continue. The prosecutor will argue that removing Rebecca from life support was a dependent intervening cause that does not break the causal chain or responsibility. These are difficult value judgments for juries to make. How would you vote?

Bernard Madoff perpetrates a massive securities fraud on thousands of people, inducing them to invest millions of dollars in areas he knows are speculative at best and fraudulent at worst. Two of these investors, having lost their life savings in this scam, commit suicide. Is Madoff a murderer?

Madoff is probably not guilty of felony murder and probably not even of murder. The felony is not "inherently dangerous," either in the abstract or as perpetrated. Even if a suicide were "foreseeable," the risk is not so great that Madoff should be held criminally responsible (civil liability might be another question). And even if all these limitations were somehow avoided, it is hard to see how the deaths are "in furtherance of" the felony. Finally, unless the suicide occurred immediately after the victims lost their money, it is possible that the "duration" requirement of the doctrine might not be met. Madoff may be a scoundrel but he is not a murderer, at least under the felony murder doctrine.

Serena is a regular drinker. Recently, she was prescribed medication for a minor ailment. Her doctor informs her that on very rare occasions the medication can react badly with alcohol and that she needs to be careful. Serena is not worried, however, and when she gets home from work one day, she takes her medication and then makes herself a cocktail and kicks back like she always does at the end of the work day. After two drinks, Serena becomes extremely intoxicated — much more than usual after two drinks. She ventures out, so inebriated that she forgets to put on her shoes, and proceeds to run amok: She batters a man on the street, vandalizes both public and private property, and sets a residence on fire. In the morning, she wakes up in jail with no recollection of what she did or how she got there. It turns out that the medication and the alcohol reacted badly, causing her to become far more intoxicated than usual. Serena is charged with arson (specific intent), criminal battery (general intent), and criminal mischief (specific intent). Does she have a defense to any of the charges?

Many jurisdictions permit evidence of intoxication on specific intent crimes. If Serena is allowed to admit evidence of her intoxication, she may have a defense against the arson and criminal mischief charges because both crimes require intent. If she can plead the defense successfully, she may get the arson charge down-graded to "reckless burning" or some other lesser crime. Similarly, she may get her criminal mischief down-graded or dismissed. However, Serena will not be able to introduce evidence of her intoxication on her criminal battery charge. Battery, unlike the other two charges, is a general intent crime and most jurisdictions do not permit evidence of intoxication against general intent crimes. Under the MPC, Serena might argue that her response to the drugs was pathological — that she became excessively and unexpectedly intoxicated because of the reaction between the medication and the alcohol. She could argue that she generally did not become so intoxicated after two drinks, something she knew from years of regular drinking. The prosecution might argue that she cannot succeed on this defense because she was aware of her "special susceptibility" since her doctor had informed her that her medication and alcohol can react badly sometimes. Under the MPC, Serena should be permitted to admit evidence of her intoxication to negate the mental state requirement for arson and criminal mischief because both crimes require intent. The MPC does not permit such evidence for crimes that require less than intent or knowledge to commit, so it is unlikely the evidence would be admitted on her charge of criminal battery. Serena might even try to assert involuntary intoxication as an affirmative defense. While she was aware that the medication can react badly with alcohol, as her doctor informed her, such reactions are rare. She could argue that the rare reaction between the alcohol and the medication severely impaired her cognitive abilities. This may not work because the extreme intoxication was not a response she had to the medication alone, but one the medication and the alcohol caused together, a possibility Serena's doctor had raised.

Finally, Maria decides she must put her rare jewelry in a bank safe-deposit box. She loads it into her large purse and drives downtown. While walking to the bank, a large man tries to snatch her purse by grabbing onto it and trying to pull it from her. Maria desperately hangs on. The man yells, "Let go. I'm not going to hurt you. All I want is your purse." With her free hand Maria manages to free her .38 pistol from her pocket and shoots the purse-snatcher, killing him instantly. As prosecutor, would you charge Maria with murder?

Maria is not entitled to use deadly force to defend her personal property from a thief even though it is very valuable and, in this case, is not insured. Thus, she is guilty of homicide. Maria might claim that she reasonably feared death or great bodily harm at the hands of the thief, but he was unarmed and told her he would not hurt her and that he only wanted to steal her property.

Marie, an electrician, is called on Super Bowl Sunday, just an hour before kickoff, by Gus, a mechanically inept homeowner, who begs her to come to his house, which has experienced an outage. Expecting the job to take 15 minutes, Marie accepts it, but once there, determines that there is a more serious problem, which could result in a fire, although in her judgment the risk is low. Anxious to see the game, she puts in a temporary fix and tells Gus she'll be back tomorrow. Of course, the house burns down during the third quarter, and Gus is killed. Has Marie committed manslaughter?

Marie could be found guilty of manslaughter. Her action here might be characterized as "reckless" under the common law or the MPC, but it is almost certainly not "under circumstances manifesting extreme indifference to human life" or "with a depraved mind." Those tests might be met if Marie had not even put in a temporary fix but had rushed off with no regard for the risks at all. We told you football could be a dangerous game, Marie.

Max wanted to collect fire insurance on an old tenement building he owns, which contains 25 apartments. Late one evening, he spilled gasoline in the basement and set a time-delayed fuse, which erupted into flame at 3:00 a.m. By some miracle most of the tenants escaped the resulting fire without serious harm; however, two tenants were horribly burned and almost died. He is charged with attempted murder.

Max did not attempt murder even though he acted recklessly with extreme indifference to human life. His purpose was to destroy the building, not to kill people. Under the common law, he did not act with the specific intent as to result — that is, he did not intend to take human life. Thus, he cannot be convicted of attempted murder. Under the MPC, Max also cannot be convicted of attempted murder because he did not act with the purpose of taking human life. (This explanation assumes that Max did not believe that people would die. Under the MPC, such a belief would satisfy the mens rea for result required for an attempt.) If a human being had died in the fire, Max could have been convicted of murder under either of two theories: intentional risk creation or felony murder. (See Chapter 8.) However, to convict someone of attempted murder, most jurisdictions and the MPC require that the defendant have acted with the purpose or intent of achieving the result element — that is, taking human life. Even if Max had knowledge that his conduct created a high probability that someone would be killed, he did not commit attempted murder. Contrary to this clear majority rule, a few jurisdictions have held that a defendant can be convicted of "attempted reckless manslaughter"18 or "attempted extreme indifference to life murder"19 even if he did not intend to kill. This minority approach eliminates the traditional requirement for attempt that the defendant must act with the purpose of causing the result element of the target offense. It is sufficient if he intentionally or purposefully does an act either recklessly or with extreme indifference to human life. The rationale is that, when the defendant does an intentional act knowing that it may come very close to killing an innocent victim, he is both blameworthy and dangerous; consequently, attempt liability is appropriate. The facts of this example demonstrate why courts might be persuaded to adopt this approach.

Al Falfa, a retail seller of farm chemicals, sold several large batches of ammonium nitrate, a fertilizer generally known to be a key ingredient in homemade terrorist bombs, to Jed, a young man in his 20s with very short hair and dressed in an army surplus camouflage uniform. Al Falfa knew Jed did not own a farm but did own a very small house with a small yard. He also knew that Jed belonged to a militant "people's militia" that advocated extreme antigovernment views. After the first sale, Al Falfa said to Jed: "You know this is far too much to use on your lawn. If you use all of it, you'll surely kill it." Jed replied: "I am not going to use it on my lawn. As a former army explosives expert I know how to use this stuff in some unusual ways. It's not the lawn I'm going to kill. It's time we showed those government folks we mean business!" Jed loaded the fertilizer onto his large pick-up truck and left. Jed subsequently returned to make several more large purchases. Al Falfa, content with making more than half of his annual sales of this product to a single customer at his usual price, did not take any further action. One week later, a huge explosion destroyed the federal building in a nearby city killing over 20 children in an on-site day care center and over 50 federal workers. Jed was arrested shortly thereafter and experts have determined that he used the fertilizer that he purchased from Al Falfa to make the bomb. Can the government convict Al Falfa of entering into a conspiracy with Jed?

Most cases require the government to prove a provider of goods or services acted with the purpose of furthering the criminal objective; mere knowledge is not enough. The cases hold, however, that a vendor can be convicted of conspiracy if he has a "stake in the criminal venture." The first question is whether Al Falfa knew that Jed was going to use the fertilizer for a criminal purpose. This is a close question. Given events like the bombings of the World Trade Center in New York City and the Federal Building in Oklahoma City, most sellers of this type of fertilizer probably know it can be used to make powerful homemade bombs. Assuming that Al Falfa did know that Jed would use the fertilizer to make a bomb, can the government prove purpose? Al Falfa sold more than half of his supply to this customer who did not appear to use it for its intended use. He also knew that Jed was a former army explosives expert and a member of a group whose political views were very extreme. However, he did not sell the product at an inflated price and it is possible that Jed did have some legitimate use for the purchase unknown to Al Falfa. It will be a jury question whether Al Falfa had a "stake in the venture" and acted with the purpose of furthering the criminal objective. The facts of this example may be less persuasive than the facts in Example 2 in establishing that a vendor of goods or services acted with the "purpose" of furthering the criminal objective and thereby entered into a conspiracy. Should "knowledge" suffice, at least when the harm to be avoided is so serious? Some commentators argue that knowledge should suffice — at least in cases like this. They would use the criminal law to impose a duty on a seller of goods or services to take rather modest measures (such as not selling) in order to prevent such serious harm. Though some jurisdictions would convict if the seller of goods or services had knowledge of the purchaser's criminal objective (particularly if a serious crime is involved), the MPC requires the government to prove that Al Falfa acted with purpose.

Vince is late for a racquetball match, but his car is in the garage. He knows that his neighbor, Jeff, is away in Europe, and will not return for another week. Vince hotwires Jeff's car, drives it ten miles to the courts, plays his match, and returns the car, filling the gas tank. He also slides a $50.00 bill into Jeff's glove compartment to pay for the wear and tear on the car. Vince's arch nemesis, Rick, has seen all that transpires and tells the police, who charge Vince with larceny. Is Vince guilty?

Most likely. Larceny is the taking of property; returning it doesn't negate the taking. Whether Jeff suffers a permanent loss or not, the property was taken and "asported," as the old common law would require. Vince may argue that he did not "intend" to "deprive" Jeff of the property and was "only borrowing" it. But even if Vince left Jeff a note to that effect (not part of the facts given here), he has deprived Jeff of that property. Just suppose Jeff had returned from his vacation early or promised the car to someone else. That's sufficient deprivation to constitute larceny. However, Vince can make the argument that he never intended to permanently deprive Jeff of the property and he always intended to return it. This would likely not fly under most state statutory schemes because this "permanently" language is not used as often in today's statutes.

Later in October, Napoleon again goes hunting, this time in the woods in Smith County. Unbeknownst to him, his trek takes him across the county line into Jones County. As (good) luck would have it, he spots a rabbit and kills it with a single shot. As (bad) luck would have it, however, as he goes to pick it up, Odie, the friendly game warden, shows up again, and again arrests him. This time the charge is "knowingly killing a rabbit in Jones County"; killing a rabbit is not illegal in Smith County. What result?

Napoleon may have met his Waterloo. He obviously knew he was killing a rabbit. He did not know that he had wandered into nearby Jones County, however. Many common law courts concluded that a mens rea word modified only the verb, thereby imposing strict liability (so far as mens rea is concerned) as to the remaining parts of the statute. This was especially true in the later words related to "jurisdiction," which seems to be the case here. Caveat. No one doubts that "Jones County" is an element of the offense, and the prosecution must prove that the killing occurred there. The issue here is whether the prosecutor must also prove, beyond a reasonable doubt, a relevant mens rea (here, knowingly) with regard to that element. The Model Penal Code will provide the same result, but for a different reason. It requires culpability with regard to any "material" element, but not with regard to an "element." The Code's distinction, however, is stated in the negative: a material element is an element that "does not relate exclusively to the statute of limitations, jurisdiction, venue, or any other matter similarly unconnected with (i) the harm or evil incident to conduct, sought to be prevented by the law defining the offense." This would seem to mean that only if the prosecution can show that Jones County is exclusively related to jurisdiction, it is not a "material element"; if the prosecutor cannot carry that burden, then the item is a material element, and mens rea must apply. But how does one determine that? One position is that nothing can relate "exclusively" to jurisdiction: that by prohibiting rabbit killing only in Jones County, the legislature was after an evil unique to Jones County, and therefore, that the location is incident to the conduct sought to be prevented by the law defining the offense. This argument, though appealing, is certainly wrong, for it would make the Code's attempted distinction between an "element" and a "material element" meaningless. Thus, one must conclude that "Jones County" (which certainly sounds as if it is solely related to jurisdiction) is not a material element, but only an element, and mens rea does not apply to that element. So long as Napoleon knew he was killing, and that what he was killing was a rabbit, he's a gone goose.

Officer Steiner observed Cottrell give Nath three or four chunks of what he believed to be rock cocaine in exchange for money. Nath was then observed a few yards away smoking the chunks in a pipe. After Officer Steiner observed what appeared to be another sale of rock cocaine by Cottrell, Cottrell was arrested. While Cottrell believed that Nath was about 19-20 years old, Nath was in fact a minor. As such Cottrell was charged with selling cocaine to a minor. Does Cottrell's mistake about Nath's age provide a defense to selling cocaine to a minor?

No. In People v. Williams (1991) 223 Cal. App. 3d 407, 284 Cal. Rptr. 454, the Court of Appeal held that Cottrell Williams' mistake about Nath's age was not a defense to the charge of selling cocaine to a minor. The court noted that a prior decision, People v. Lopez (1969) 271 Cal. App. 2d 754, 77 Cal. Rptr. 59, held that a "mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed." The Williams court further explained that the specific intent required for selling cocaine to a minor is the intent to sell cocaine, not the intent to sell it to a minor. Since the requisite intent is not negated by the mistake of the buyer's age, Cottrell Williams' mistake about Nath's age was not a defense.

Noreen needed money for a down payment on a new house. She decided to collect insurance on her wedding ring, a family heirloom insured for $8,000 against theft. She drove to a distant city and sold the ring to a jeweler. Two days later she broke her window from the outside and ransacked her bedroom where she had previously kept the ring. She then called her insurance company and asked what steps she had to take to be paid for the theft of her ring under the policy. The company said it would pay her the $8,000 if she filed a police report and then submitted a claim. Noreen reported to the police that the ring had been stolen. a.A few days later, overwhelmed by guilt, she confessed to the police. b.The jeweler to whom she sold the ring called her and said he had received a police bulletin describing her ring as stolen property and that he intended to report it to the police. Noreen immediately notified the insurance company that she would not be submitting an insurance claim.

Noreen has probably not committed attempted fraud (though she may be convicted of filing a false police report). Although she intended to file a false claim of theft, she only engaged in preparatory conduct. Under the common law, she has not taken the last step; she must still submit the claim to the insurance company. Nor is she proximately close to committing fraud. She has ample opportunity to change her mind and has not yet set in motion a chain of events that would lead to her being paid by the insurance company for the "loss" of her ring. Even under the MPC, it is unlikely she has taken a substantial step. Because she needed to actually file the claim before she would collect any money, she could still change her mind and, in fact, she did. Even if she has attempted under the Code, she has abandoned her plan. Just as in Example 9a, Noreen has not committed an attempt. True, she changed her mind only because the chances of succeeding were almost zero. However, her actions would still probably be considered preparation rather than implementation under the analysis in Example 9a.

Suppose Harry tells Joe that he's taking the paper, and Joe nods. Afterward, Harry decides to stiff Joe unless Joe "reminds" him to pay for it.

Now we seem to have title pass when Joe allows Harry to take the paper. Joe does not expect to see the paper again, so this appears to be a case of false pretenses, if anything. But it is probably not anything. Why? Because at the time he took the paper, Harry lacked the proper mens rea: He didn't intend to deceive Joe. This might seem to be a case of larceny by trick, as in Pear's Case. Here, however, the possession was not trespassory as it was there; Harry did not have the intent to take the paper when he removed it from Joe's store. Assuming that the "exposure for sale" provision did not exculpate Harry, the MPC would find Harry guilty of unlawful control of the paper without regard to when the "proper mens rea" occurred to Harry.

Nyguen walked into the bank, pulled a gun, and told the teller to put money in a bank bag. Betty did this while triggering a silent alarm. Seeing a police car pull up in front of the bank, Nyguen grabbed Betty by the arm, pointed his gun at her head, and used her as a shield while leaving the bank from a rear exit. A police sharpshooter, stationed in the alley, saw Nyguen leaving the bank with Betty in front of him and his gun pointed at her head. Taking very careful aim at Nyguen, the sharpshooter waited for a clear shot and fired. Unfortunately, Nyguen turned at the same moment. The bullet struck and killed Betty instantly. Is there a viable theory that the prosecutor can use to hold Nyguen responsible for Betty's death?

Nyguen would not be liable under a felony murder theory in most jurisdictions because neither he nor another co-felon killed an innocent person during the commission of a felony. (See Chapter 8.) Causation theory, however, would allow a conviction of Nyguen for proximately causing the death of Betty even though she was killed by a police officer trying to rescue her. By using Betty as a human shield, Nyguen satisfies cause in fact; but for his act, she would not have been killed. Moreover, by using her as a shield, Nyguen placed Betty in harm's way. It was foreseeable that a police officer would try to rescue her from this dangerous situation by using deadly force against Nyguen. By keeping Betty so close to him while threatening her with imminent death, Nyguen started a chain of events, the natural and probable consequence of which was her accidental death. This example demonstrates how conduct that manifests extreme indifference to the value of human life that proximately causes the death of either a felon or an innocent person can generate responsibility for homicide. For a good example of this approach, see Taylor v. Superior Court, 3 Cal. 3d 578, 477 P.2d 131 (1970). Under MPC §210.2(1)(b), the prosecutor could argue that, in using Betty as a shield, Nyguen committed murder "recklessly under circumstances manifesting extreme indifference to the value of human life." To satisfy causation, she would prove that Nyguen's act was the "but for" cause of Betty's death and that, because the police often use deadly force to rescue hostages, the result was contemplated by Nyguen. Note that the MPC requires the prosecutor to prove culpability with respect to result in this example.

Linda enters the bank to rob it and points her gun at Olga, a bank customer, saying: "Get all the cash from the tellers and put it in a bag for me or else you're dead!" Olga does this and hands Linda the bag with all the cash in it. Linda then runs out the door with the cash.

Olga assisted Linda to commit the bank robbery by gathering up the cash and putting it in a bag for her. However, Olga did so only because she was threatened with imminent deadly force. Olga would have a successful defense of duress (see Chapter 16) and, thus, would be an innocent agent. She could not be convicted as an accomplice.

Jedidiah is walking down the street when his arch rival Archie comes running at him with a gun in his hand, screaming "I've had it with you, J. Today's the day you meet your maker!" Jedidiah pulls out his (legally possessed) magnum .357 and kills Archie. The state statute follows the "stand your ground" Florida law, and provides that the person who uses defensive force cannot be "engaged in an unlawful activity." It turns out that Jedidiah has two (unsmoked) marijuana joints on him. Has Jedidiah's claim of self-defense gone up in (non)smoke?

One would think not. After all, the whole point of the "stand your ground" statute would seem to be to protect a non-aggressive party, and Jedidiah meets that definition. One could argue that the provision against "unlawful" behavior was to deal with aggressors. But possession of marijuana is a crime. In Dawkins v. State, 252 P.3d 214 (Okla. Crim. App. 2011), the court held, under a similar statute, that possessing an illegal weapon deprived the defendant of the "stand your ground" protection. In dictum, the court further suggested that "current crimes (which would exclude the statute) include . . . possession of illegal drugs. . . ." Oops.

Papa loved Mama, and Mama loved men (with apologies to Garth Brooks). Papa, a trucker, comes home unexpectedly one night and finds Mama and Neighbor in flagrante delicto. Papa kills Neighbor with the bottle of champagne he had brought to surprise Mama (as Brooks says, "If he was looking to surprise her, he was doing fine."). Manslaughter?

Papa is guilty of manslaughter. This is the classic case of "adequate legal provocation" even under the common law. But the facts as stated could hide an enormous amount of ambiguity. For example: Did Papa see Neighbor's car in the driveway? Did he hear heavy breathing as he approached the bedroom? Suppose Papa had to go to the refrigerator for the champagne, or to his truck for a tire iron? Most discussions of these events leave out the "ancillary" facts, but they might be enough to suggest either that (1) Papa was not as surprised as he claims; (2) Papa had "some" time to cool off before he killed.

Lamont, a trial judge who had desperately and unsuccessfully sought to be promoted to the appellate bench, becomes so despondent that he decides to take his own life. He turns on all the burners in his gas oven, seals the windows and doors, takes six sleeping pills, and lies down to die. A spark from his refrigerator ignites the gas. An explosion kills four neighbors, but Lamont survives. Is he guilty of any level of homicide?

People bent on suicide often kill others and not themselves. Jumping off buildings, ingesting poison while pregnant, and driving into another car are just some of the myriad methods that can lead to this bizarre result. The prosecutor would argue that the defendant actually has a desire that (his) death will occur (though not that of others), and that he is therefore guilty of purposeful murder. Moreover, since the defendant premeditated his own death, the prosecution could contend that this was first degree. What about the doctrine of transferred intent (see Chapter 4)? Defense counsel, on the other hand, would contend that suicide is no longer a crime. Since the defendant did not intend any other person's death, there was no transferred intent because there was no criminal intent to begin with. In addition, it is hard to see how the defendant, who wished to kill only himself, demonstrated a common law "depraved heart" or MPC "extreme recklessness." It is also possible that the defense counsel may argue some form of mental instability or incapacity; see Chapter 17. In the case on which this example is based (in which, fortunately, no one died), the court found the judge guilty of reckless endangerment. People v. Feingold, 852 N.E.2d 1163 (N.Y. 2006).

Would your advice be different if Maria said she would post easily recognized warnings — "Do Not Enter Without Permission: Deadly Cobra Inside" — on the outside of her condo?

Posting warning signs would not relieve Maria of criminal responsibility. Neither the common law nor the MPC permits the use of deadly force to protect unoccupied dwellings or personal property located there. The MPC permits the use of unusual mechanical devices to protect real or personal property if adequate notice is given, but only if they do not pose a substantial risk of serious bodily harm. Posting warnings does not relieve Maria of responsibility for using a deadly mechanical device to defend her property. Most jurisdictions prohibit the use of such devices. The MPC allows the use of nondeadly devices if they are customary (like razor-sharp wire around a warehouse) or if notice is posted. It does not allow the use of deadly mechanical devices under any circumstances.

Tom and Dave run into Linda at a bar. They have a few drinks and then decide to walk to a different bar nearby. While they walk along, Tom suggests a short-cut through an alley. Linda and Dave agree. Once they are in the alley, Tom grabs Linda and rapes her. While Tom is raping Linda, Dave pulls a garbage can in front of them so that no one can see from the street what Tom is doing. Did Tom and Dave conspire to rape Linda?

Probably not. To find a conspiracy, there must be evidence of a prior agreement that reflects a shared criminal purpose. An agreement does not require an express act of communication; a jury may infer the existence of a prior agreement from concerted activity. Nonetheless, on these facts, it appears that Tom's rape of Linda was a spur of the moment decision, and that it was not the result of a prior agreement with Dave. Obviously, Tom can be convicted of rape. Because Dave has seemingly acted with the purpose of facilitating Tom's crime, Dave has aided and abetted the rape and can therefore be convicted and punished as an accomplice. It is likely that neither Tom nor Dave would be convicted and punished for the separate crime of conspiracy.

Quentin loves Cuban cigars. He thinks their importation into the United States should not be a crime. He purchased several high-priced cigars in Colombia while on a business trip, thinking they were Cuban cigars, and hid them in a secret compartment in his suitcase. A customs inspector discovered the cigars at the airport in Miami. a.There is a law forbidding the importation of Cuban cigars, but, it turns out, these cigars are from Santo Domingo. b.These cigars are Cuban, but there is no criminal law forbidding their importation. c.There is a law forbidding the importation of Cuban cigars, but, unknown to Quentin, these cigars actually are 100 percent marijuana.

Quentin clearly had the mens rea to commit an attempt, and he took a substantial step to implement that attempt (hiding the cigars in a secret compartment and not declaring them at customs). His actions also satisfy all of the common law tests. Unknown to Quentin, the cigars were not Cuban and could lawfully be imported into the United States. Under the common law, this is a case of factual impossibility, not legal impossibility. There is a law forbidding importation of Cuban cigars into the United States. Quentin intended to engage in conduct that would violate that law, and he took significant action to implement that intent. Though these cigars are not Cuban, Quentin thought they were. Thus, most courts would conclude that Quentin had the purpose to import Cuban cigars and would not allow the defense. However, a minority of courts might conclude that Quentin intended to do what, in fact, he did — import Santo Domingan cigars. This analysis misapprehends the meaning of intent and also equates mens rea with actus rea. The MPC would also convict Quentin of attempt. It provides that the mens rea toward circumstances required by the target offense will be the mens rea required for an attempt. In this case, Quentin has acted with the purpose of importing Cuban cigars. Because this is the highest culpability, it will satisfy whatever mens rea is required by the target offense. 14b.This is a case of true legal impossibility under the common law. There is no statute forbidding the importation of Cuban cigars into the United States. Quentin has shown he is willing to commit a crime and has acted on that willingness, but what he tried to do is not criminal. A belief that one is breaking the law, even when coupled with action to implement that belief, cannot generate criminal responsibility. Quentin could not be convicted under the MPC either, because there is no statute punishing the importation of Cuban cigars. 14c.Quentin can be convicted of attempted importation of Cuban cigars. The analysis of mens rea and actus reus is the same as in Example 14a. This would be a case of factual impossibility under the common law and it would not be a defense. Under the MPC, Quentin is also guilty of an attempt because he acted with the same mens rea toward circumstances as required by the target offense. Whether Quentin can be convicted of possession and/or importation of marijuana depends on whether the applicable statute requires the defendant to know that the substance he possesses or imports is marijuana or whether it is a strict liability element. If it is not a strict liability element, Quentin could raise the defense of mistake of fact under the common law. Under the MPC, he could present evidence of his belief to negate the culpability element of the offense. If it is a strict liability element, Quentin is in real trouble!

Fran, 90 years old, uses a walker to help her move around. One day, while playing bridge with three friends at the nursing home, she becomes enraged when Retief improperly plays a trump and claims the hand. Fran shouts, "I've had enough of your cheating!" She swings at Retief with her knitting needle. Retief, a 70-year-old former pro golfer who carries a walking stick crafted from the five iron with which he won the U.S. Open, immediately hits Fran and kills her. Retief is charged with second-degree murder. What result?

Retief may be playing his last rounds in prison. First, although Fran "threatened" force, it is hard to see that she was threatening deadly force — while it might be deadly in the hands of a 25-year-old, a knitting needle is probably not deadly when swung by an elderly person. Thus, Retief is not allowed to use deadly force to respond to nondeadly force. Even if the needle is deadly force, however, Retief has two options: (1) he could almost surely disarm Fran rather than kill her; (2) he could retreat. After all, he is more spry than Fran, who probably would have only one chance (at most) even to hit Retief. It may be that the jury could conclude that Retief couldn't move faster than Fran (and that would be a jury question), BUT he could just use nondeadly force (pushing her over), which would surely allow him to escape.

Jay is being held in an old rural county jail. Late one afternoon, Rhonda, his girlfriend, visits Jay and tells him that she and Joe, his best friend, are going to bust him out that night. (Rhonda does not tell him they do not intend to leave any witnesses.) Jay says: "Great! I knew I could count on both of you." At about 3:00 a.m. the next morning, Rhonda and Joe ring the jail's night bell and are admitted by Doug, the night jailer. While Joe distracts the guards, Rhonda walks up behind Doug and kills him. Unfortunately, Rhonda and Joe cannot find the keys to Jay's cell, so they flee. The next day they are both apprehended. Is Jay responsible for the murder of Doug?

Rhonda and Joe obviously formed a conspiracy to break Jay out of jail and each of them is responsible for the murder committed by Rhonda because they had expressly agreed to kill all witnesses. Even under the MPC, Joe would be responsible for the guard's death because he aided Rhonda by distracting Doug. The prosecutor would argue that Jay joined the conspiracy the afternoon Rhonda visited him and outlined the general plan. But did Jay agree to kill the guard? Can he be held accountable for Doug's murder when he did not know of the planned killing and was a completely passive agent unable to control the behavior of either Rhonda or Joe? The prosecutor will argue that Jay is also responsible for these murders under the Pinkerton rule because it was reasonably foreseeable that deadly force might be necessary to accomplish the general plan. Consequently, Jay can be charged with Doug's murder. Under the MPC, the prosecutor must prove that Jay is an accessory to the murder because he solicited this particular crime, or aided, or agreed to aid, or attempted to aid in its commission. Without more evidence, this will be difficult — but not impossible — to prove.

Roberta, angry at Raoul and wanting to kill him, pointed a loaded pistol at his head while Raoul was asleep and pulled the trigger. The gun jams and does not fire. Raoul wakes up and grabs the gun from Roberta before she can pull the trigger again. What would be the result?

Roberta has acted with the same mens rea as in Example 3, yet she has not caused Raoul's death. Roberta could be convicted of attempted murder, probably in the first degree. However, why should she be punished less severely than in Example 3? She acted with the same state of mind and took the last step she could to bring about the result. The fact that she did not actually kill Raoul was fortuitous. Only luck saved her from causing his death. Some would argue that causing harm should not be an important consideration in determining the severity of punishment. Rather, the defendant's attitude toward causing harm and her conduct designed to bring it about should be the primary considerations. Others argue that the public is rightly angered by the fact that harm has occurred and that more severe punishment should be imposed in such cases.

Rosita's rapid transit system charges $2.00 per ride, but you can purchase a monthly ticket for $60 and use it as often as you wish. The card explicitly declares that it is "not transferable." Rosita buys a monthly card on the first of the month. Thereafter, she stands next to the turnstile of the train, and swipes her card for anyone who wishes, charging them $1.00 for each ride. Rosita is charged with larceny from the transit system. What result?

Rosita will walk and live to ride again. Larceny is the taking of the property of another. But Rosita has not deprived the transit system of any property it ever owned. She has deprived the system of money it would have had, but not money it ever possessed. Under the common law, depriving someone of services was not larceny — that's why legislatures had to enact statutes making "larceny of services" criminal. Under modern statutes, Rosita would be charged with "theft" and the difference between larceny and theft of services would be irrelevant.

Gilberto — a disturbed police officer — has recently begun having fantasies of killing and cooking various women. The idea thrilled him so much that he spent hours in online chatrooms discussing how to kill (and then eat) over 100 women with other similarly interested people. He even goes so far to discuss cooking and eating his wife (slowly) but never engaged in any of these actions. His wife happens to find these chats and reports her husband to the FBI right away. Has his behavior risen to the level of a crime?

Sadly, this example is based on a real case. Gilberto Valle, known as the Cannibal Cop from Queens, New York was arrested and served jail time for conspiracy to commit kidnapping. He claimed that he was simply fantasizing and never committed a crime. Many experts agreed that his activities did not amount to anything criminal, but were simply "mens rea" without adequate actus reas. Gilberto's state of mind showed that he would be culpable for a purposeful murder if he went through with his plans to kill any of these women. However, the problem here is that after planning and plotting to eat and kill over 100 women, he never went through with any of his plans. Thus, a murder charge is out of the question, and so is conspiracy if he never commited any "overt acts" in support of his fantasies. It will make you feel really safe that Gilberto is now home still fantasizing and discussing killing and eating women in the safety of his home.

Sally was sleepless in Seattle. Her doctor also prescribed Ambien. Because the drug took a while to work, Sally disregarded the directions on the label and took a pill as she drove home late one evening so she would be ready to fall asleep at bedtime. Surprise! The pill kicked in before she reached her home. Sally was arrested for hitting a telephone pole. She remembers nothing after taking the drug. Actus Reus?

Sally did not follow the directions for taking this powerful drug. She consciously and voluntarily took the pill before she should have, and it caused the very condition she could reasonably expect. Thus, taking the pill while driving is a voluntary act sufficient for imposing criminal responsibility, even if she was, in fact, "sleepwalking" behind the wheel when she crashed.

Sarah is the owner of the Sunshine Daycare Center, which is celebrating its twentieth year of being in business. As an anniversary promotion, Sarah is offering new families one day of care free of charge to try their services. One day, a mother brings in her five-year-old daughter to take advantage of the promotion. When the mother leaves, Sarah immediately notices the girl exhibiting some troubling behavior. The girl is withdrawn, seemingly depressed, and has several bruises on various areas of her body. When the girl's mother returns at the end of the day, the girl kicks and screams, "I don't want to go home!" Sarah recognizes these all as likely signs of physical abuse, but says nothing. The girl and her mother never return, and Sarah chalks the incident up to overthinking. Several months later, the girl's mother is arrested for severe physical abuse of her daughter. Authorities interview Sarah, informing her that state law makes clear that daycare centers are requires to report signs of abuse and asking whether she observed any such signs when the girl was there. Sarah admitted that she did, but insisted she had no idea about the reporting obligations. Can Sarah be convicted of a crime?

Sarah's failure to report blatant signs of child abuse is an omission. And since the law in her state creates a legal duty for daycare employees to report any signs of abuse they observe, the omission will be considered a voluntary action. Given Sarah's decades-long experience in the child care industry, she should have been well aware of her obligation to report signs of abuse. However, even assuming Sarah truly was ignorant of her reporting obligation, ignorance of the law is not a valid defense (see Chapter 5) and does not negate the voluntariness of her action. There may be an argument Sarah can make that she didn't have a duty given the fact that the child was only under her care for one day. However, given what she observed, her experience in the industry, and her voluntarily undertaking the care of the child, this argument would not likely be successful.

Sebastian, 45, sent a follow request on Instagram to "Amanda," a teenage girl he found in the search feature, in hopes that she would have sex with him. Amanda accepted Sebastian's follow request and told him she was 14 and wanted to have sex with an older man. Amanda was actually a female FBI agent, Barbara, who was on the prowl for people like Sebastian. After exchanging several direct messages, Sebastian and Amanda agreed to have sex at a motel near Amanda's home. Sebastian checked into the room, and Amanda called him from the lobby as planned. When Sebastian opened the door, he was immediately arrested and charged with attempted sexual assault of a minor.

Sebastian would argue that it was impossible for the prosecution to prove he could have committed sexual assault of a minor. "Amanda" was not underage; thus, it was legally impossible for him to attempt this crime. The prosecution would counter that, if the facts were as Sebastian believed them to be — if Amanda were 14 — he could have committed this crime. Thus, this is a case of factual impossibility: Sebastian intended to have sex with an underage girl. Thus, Sebastian is guilty of attempt. The age of his sexual partner is a "circumstance" element of the crime; thus, this a case of factualimpossibility. Most jurisdictions would agree with the prosecutor and convict Sebastian of attempt. Only if a court took the approach in the Jaffe case and construed Sebastian's intention to be what actually happened in the real world, rather than what he expected to happen, would Sebastian have a chance of acquittal under the doctrine of legal impossibility. The MPC would also convict Sebastian. It does not allow the defense of impossibility. Here, Sebastian believed that Amanda was 14, and he would have committed a crime if she were that age. Thus, he attempted to sexually assault a minor. Notice once again that the MPC focuses primarily on the actor's attitudes rather than on whether he came close to causing harm.

Martin Miner knows that Billingsley Buyer believes that Miner's mine is valuable. Miner, however, knows it is dry. What offense, if any, if Miner sells it to Buyer?

Since title to the mine passed, it can only be false pretenses and not larceny or embezzlement. However, this is not false pretenses under the common law unless Miner has created or reinforced in an affirmative way Buyer's impression: As long as Miner stays silent, it is not illegal. Even under the MPC, there may be no crime here since Miner has not "created or reinforced" Buyer's impression and does not stand in a fiduciary relationship to Buyer.

Same facts, except that Harry knew at the time he took the paper he would not pay for it.

Since title to the paper passed to Harry with Joe's blessing, this could only be false pretenses — Harry got title by inducing Joe to give him the paper. Under the common law, however, Harry's false promise as to his future payment is insufficient. The (mis)representation must be as to present facts. This would be true even if Harry had the money in his pocket to pay for the newspaper; unless he says, "I don't have enough money, Joe. I'll pay you tomorrow," Harry has committed no common law offense. Under the Code, a false promise can be sufficient to convict of theft by deceit, so that Harry's precise mental state would be important here.This is not false pretenses since Joan never expected title to pass, nor embezzlement because Larry's intent effectively makes his initial taking trespassory, much as in Pear's Case. Thus, this is larceny by trick and not embezzlement. Under the MPC, however, the common law distinctions are unimportant. Whether title passed (or was intended to) is irrelevant. Larry's taking is "by deception," and his control is therefore "theft" under the Code.

Stuart works for Harvey Made-Off, soon to be convicted of running a giant Wall Street Ponzi scheme. Harvey took money from investors telling them he would buy stocks and bonds for them; instead, he simply pocketed their money. He paid off early investors using money from later investors. Stuart's job is to prepare monthly reports, based on information provided by other members of the company, for individual investors, showing how much money they "made" and the current "value" of their investments. Stuart was completely unaware of the fraud being committed until one day he mistakenly received a memo from Harvey to his second-in-command, completely outlining the scheme and asking how it could be covered up should the SEC ever audit the company. Stuart quits immediately but does not report the scheme to any public authority. Actus Reus?

Stuart would argue that he is an "innocent agent" (see Chapter 11). Admittedly, he helped cause terrible financial harm to thousands of victims; however, he had no awareness of this fact. Thus, so long as he quit at once and did no further harm, he has no duty to prevent future harm. The government would counter that, although he was an innocent agent and therefore not responsible for his past acts, Stuart has induced reliance by the victims of this Ponzi scheme on the integrity and accuracy of the financial reports, and investors would rely on them even after Stuart quit. Thus, Stuart has a duty to undo this misplaced trust and inform authorities. Otherwise, he is responsible for these subsequent acts of fraud. Who has the better argument?

At 12:40 a.m., Keith is in a rural area driving a Chevrolet Tahoe (an SUV) with no rear license plate. He is pulled over by a state trooper, but when the officer exits his cruiser, Keith takes off at speeds up to 90 mph, turning off his car's headlights, running two stop signs and a red light, and driving on the wrong side of the road. As the vehicles enter an urban area, the trooper stops the pursuit, fearing that the chase might cause an accident. One minute later, Keith runs another red light and collides with a car, killing the driver. A state statute (which we'll call §101) provides that it is a felony "(a) if a person flees or attempts to elude a pursuing peace officer . . . and the pursued vehicle is driven in willful or wanton disregard for the safety of persons or property. . . . (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time three or more violations that are assigned a traffic violation point count . . . occur." By another statute, among the violations that are assigned points (in addition to reckless and dangerous driving) are (1) driving an unregistered vehicle owned by the driver, (2) driving with a suspended license, (3) driving on a highway at any speed more than 55 miles per hour when a higher speed limit has not been posted, (4) failing to come to a complete stop at a stop sign, and (5) making a right turn without signaling for 100 feet before turning. Did Keith commit felony murder?

Surprise! (Or not. You know the answer must be bizarre; we wouldn't include it here if it were the obvious one.) The California Supreme Court, in People v. Howard, 34 Cal. 4th 1129, (2005), held that this could not be felony murder. California uses the "inherently dangerous in the abstract" test to determine whether a crime can be the predicate for felony murder. The court held that although Keith's driving was clearly inherently dangerous, he could have violated §101 by nonviolent means (the ones listed at the end of the example). Therefore, since not all ways of violating §101 are "inherently dangerous in the abstract," §101 could not be the predicate for a felony murder count. The court combined the number of ways in which §101 could be violated, concluded that some of them were nondangerous, and therefore held that the statute could be violated "in the abstract" in a nondangerous way. This methodology seems to be in direct conflict with the one used by the same court in Patterson, discussed on page 224. In view of these results, it would be hard to argue with a layman's conclusion that this is an absurd result. After all, how could killing someone with that vehicle after that kind of car chase, at that speed, not be murder? But consider that (1) the prosecutor could easily have charged Keith with "depraved heart" murder and almost assuredly convicted (after all, the officer recognized that the chase was dangerous); and (2) many courts are generally hostile to the felony murder rule, preferring that the prosecutor prove mens rea as to the deaths.

Jacob is a devout Snaker. His religion teaches him that no bite of a snake will be harmful, much less deadly, if the handler of the snake has true belief in God. Jacob does. He therefore takes his six-month-old son to church one day and, handling the snakes himself, allows them to bite the boy three times. The boy dies. Assume that a statute penalizes, in varying degrees, anyone who "intentionally, purposely, knowingly, maliciously, or recklessly" causes the death of another. Of which of these crimes, if any, is Jacob guilty?

Surprise. Under the Model Penal Code, Jacob is not guilty of any of these crimes. Each of these mens rea words requires, with regard to the result element of death, that the defendant either "consciously desire death," "know that it is practically certain," or "consciously disregard a substantial . . . risk" that death will occur. None of these describes Jacob's mental state with regard to death. Jacob honestly believed that there was no risk to his son. Therefore, he did not "consciously disregard" any such risk. Under the common law, the question is closer because Jacob did "intend" that the snakes bite the boy. However, at least in homicide cases, the courts looked beyond the "statutory mens rea" and often inquired about the "traditional mens rea" issue of moral culpability. From his own viewpoint, certainly, Jacob is not "morally culpable." That may mean that he did not have the requisite mens rea. See the discussion of homicide in Chapter 8.

Last week, Terrence, a law student about to graduate, told Dennis that he is going to "hack" into Sallie Mae's computer system and erase all of his own student loan records so he would not have to repay his humongous debt. That same day, Terrence visited websites describing basic hacking techniques (including how to penetrate computer security systems and erase files) and downloaded this information. Has Terrence committed an attempt?

Terrence clearly has the mens rea to commit several crimes, including contemporary crimes that prohibit computer hacking and the destruction of computer information, as well as traditional crimes like fraud and theft (by not repaying his student loans). His criminal intention can be established by his statement to Dennis and by his gathering information on hacking techniques. The more difficult question is whether Terrence is simply in the "preparation" phase or has actually put his plan into "action" by engaging in conduct sufficient to make him guilty of attempt. Under the common law, Terrence has surely not yet taken the "last step" since he would have to do much more to accomplish his goal. And his behavior so far (without looking at any other evidence like his remark to Dennis) does not plainly demonstrate that he is going to commit a crime. Thus, it does not satisfy the "equivocality" test. Even under the proximity test, Terrence has probably not committed an attempt because he has not come close in space or time to actually committing the unauthorized computer entry (let alone destruction of computer information). Under the probable desistance test, he still can change his mind since there are still actions he must take to accomplish his goal. Thus, Terrence has not committed an attempt. Under the MPC, has Terrence taken a "substantial" step? Probably not. His actions appear to be only preparation, acquiring the information necessary to commit the crime at some future time.

Earlier today, Terrence loaded the hacking program he had written into his computer and dialed the remote access number for Sallie Mae's website. He was met by an unexpected firewall. The system denied Terrence access to his files because he was not using a predesignated computer to access the site. The system posted: "Unauthorized attempt to access system. Please contact administrator" and listed an 800 number for assistance. Terrence quickly exited the system. Now?

Terrence has committed an attempt! He had the necessary mens rea. His actus reus in trying to enter a secure computer site has satisfied all of the common law tests except the "last step" and, perhaps, the equivocality test. Terrence's action would clearly constitute a "substantial step" under the MPC because it confirms his criminal purpose. He used a hacking program, a custom-designed criminal instrument, and went (in cyberspace) to the scene of the contemplated crime, a secure computer system, by dialing the remote access number and trying to gain entry. Under the MPC, Terrence might raise the defense of renunciation, arguing that he decided not to commit the offense after all. However, Terrence changed his mind about committing the crime only because he was having difficulty in succeeding and because the chances of being detected had become much higher. He was probably postponing the crime until he could determine how to breach the firewall. Thus, his renunciation is not voluntary and complete. Poor Terrence: criminal punishment and student loans!

As in the song, Papa finds the house deserted (except for his children) and heads downtown in his semi-tractor trailer truck. He gets to the local motel and, changing from first to fourth gear, plows through the room in which Mama and Neighbor are cavorting. One or both are killed. Murder or manslaughter?

The Brooks song fails to tell us how Papa knew the room in which Mama was carrying on; if he had to ask the clerk for this information, there may be less opportunity for reduction. Moreover, Papa may have had time to cool off, either objectively or subjectively, while he was driving to the motel. Remember that under the common law, this was a question of law for the judge. Under modern common law, there is no "threshold" that the defendant must meet. Under the Model Penal Code, the passage of time, while one factor, is not determinative of a defendant's inability to have the slaying reduced to manslaughter, as long as he is still acting under the extreme disturbance.

Derek, having decided to kill Ronald, his enemy of many years, comes upon Ronald bending over a package and shoots him three times in the head at point-blank range. It turns out that Ronald was about to detonate a bomb that would have killed roughly five hundred people. Derek claims his killing was justified. Is he correct?

The answer to this example is "murky." As noted in the text, some courts and writers (the "deeds" school) focus on the act, arguing that if the outcome of the act was socially beneficial, then Derek, who is otherwise a scumbag, should nevertheless not be punished. Others (the "reasons" school) focus on the actor and claim that actors, not acts, are justified because of their mental state. If Derek was not aware of the justifying circumstances, they argue, he cannot be justified, even if his action resulted in a social benefit. The controversy here began in two law review articles. Compare Robinson, A Theory of Justification: Social Harm as a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 266 (1975) with Fletcher, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 UCLA L. Rev. 293 (1975).

Dorothy asks Megan to deliver a transparent package, obviously containing some white powder, to George, and she says (a) "Remind George he owes me $10,000"; (b) "Tell him it's $10,000." Is Megan guilty of "knowingly" transporting (or selling) cocaine if she transports the powder without asking more?

The concept of willful blindness (or "ostrich culpability") allows conviction for a crime of "knowledge" even if the defendant did not actually know the facts. Courts have differed as to the wording of the test, concerned that the use of wording, such as "should have known," would risk punishing a merely negligent (or reckless) actor as seriously as one who actually knew. The cases require that the government not merely show facts from which a reasonable person could have deduced the relevant fact, but also show that the defendant strongly suspected the facts. In neither (a) nor (b) is there any evidence that Megan actually suspected that the powder was cocaine. But the statement in (a) could easily be interpreted as relating to a preexisting debt, while the statement in (b) is more likely to be construed by the jury as putting Megan on notice that the $10,000 was in payment for the white powder actually being delivered. Contrast the situation where, in response to either statement, Megan had said, "That's a lot of money for a canister of sugar." Or suppose she had merely said, "That's a lot of money," not explicitly connecting the $10,000 with the powder.

Sam, a drug dealer, uses a pharmaceutical drug to produce Drug X. Two teenagers purchase and consume Drug X. Both teenagers overdose on the drug and suffer from permanent brain damage. The parents of both teens sue the Manufacturing Company of the pharmaceutical drug claiming negligence. The plaintiffs argue that the Manufacturing Company should have foreseen that the pharmaceutical drug would be used by drug dealers to produce Drug X. The Manufacturing Company filed a Motion to Dismiss asserting that the plaintiffs cannot show that the Manufacturing Company's actions were the proximate cause of the injuries sustained by the teens. How would the court rule?

The court would likely grant the Motion to Dismiss. The parents are not able to show that the Manufacturing Company's actions were the proximate cause of the plaintiffs' injuries. The sole or supervening cause of the injuries to the teens was a criminal act committed by the drug dealer. The Manufacturing Company had no duty to anticipate or prevent the criminal actions.

Tiny regularly visits an exotic dancing club. The local prostitution law makes it a criminal offense for exotic dancers to make physical contact with a customer in exchange for money. One evening Tiny becomes extremely frustrated with the law and offers Candy, a dancer, $100 for a lap dance. Candy agrees and does a lap dance while seated on Tiny's lap. An undercover police officer immediately arrests both. Subsequently, the prosecutor charges Tiny as an accomplice to Candy's act of prostitution.

The criminal law in this jurisdiction prohibits exotic dancers from making physical contact with patrons in exchange for money. It does not punish the customer who pays for the dance. By doing a lap dance in exchange for money, Candy has clearly violated the law. Can the prosecutor convict Tiny as an accomplice? After all, he initiated Candy's crime and gave very strong encouragement to her by paying her $100. Nonetheless, the charge should be dismissed. The substantive law here punishes only the conduct of one party even though the crime necessarily requires participation by two parties. A court will conclude that the legislature, in not punishing the conduct of one party essential to the commission of the crime, did not intend to impose criminal responsibility on that party. To permit a prosecutor to use accomplice liability to punish that very same conduct will subvert legislative intent.

Peter Salli is 22 years old and has suffered from paranoid schizophrenia for several years. He is an extremely devout Catholic. Having believed for the past five years in a worldwide conspiracy to destroy the Catholic Church, Peter feels he is God's chosen defender of Catholicism from these conspiratorial forces. Acting more strangely than ever, Peter buys an automatic weapon and a large amount of ammunition. He also locates the addresses of several abortion clinics in his area. Shortly thereafter, Peter enters two separate abortion clinics, screaming, "Abortion is wrong! You should pray the rosary and stop this killing!" Peter then kills two clinic staff members and wounds several others. He flees and is apprehended while trying to avoid detection.

The defense will claim that, at the time of the killings, Peter suffered from a pronounced mental illness that made him perceive the world in a very distorted way. His perception of persecution may have put him in a very defensive position toward the world in general and in a state of constant vigilance. Peter's perception of persecution, though grossly incorrect, may also have led him to believe he was acting in justifiable self-defense. This is an interesting question. Even if Peter's view of the threat was correct, he would not be justified in using deadly force because there is no threat of death or serious bodily injury. In this case, there is a good argument that Peter's response to his perception was inappropriate, even conceding his distorted view of the world. The insanity defense, however, does not require that the defendant's action be lawful if the facts were as the defendant thought them to be. His inability to gauge reality may also impair his ability to morally evaluate possible courses of action. In a M'Naghten jurisdiction, the defense will assert that Peter's delusional sense of persecution, both of his church and of himself, left him unable to know that his act was wrong. This will be a close case, but if Peter knew that his conduct was against the law, he might be convicted. A jury may conclude that he is just like a conscientious objector who chooses to place his value system above society's and to disregard the criminal law. Or it may find Peter NGRI, concluding that Peter does not possess sufficient rationality to make a meaningful moral choice. The result would not necessarily be any clearer in a jurisdiction that used the MPC test. This test lets the defense argue that, as a result of mental disease or defect, Peter lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The word "appreciate" may require a better understanding than simply "knowing" his conduct was wrong. It may also include some genuine emotional grasp that his conduct was wrong. The prosecutor will retort that Peter may have been mentally ill, but he knew his act was against the law. She will claim that there is no evidence of compulsion in this case: no divine command, no delusional religious beliefs that killing, even in the defense of one's church, is appropriate. Moreover, there is abundant evidence of planning, preparation, and attempt to avoid detection and apprehension. Thus, she will argue that Peter should be convicted.

Ashley attempts the hold-up, but Pop shoots first, killing Zuzu, a customer in the store. Murder?

The difficult question here is that someone other than the felon killed someone else. As to this type of scenario, the courts are mixed. Ashley's culpability for murder will depend on what factors courts in her jurisdiction examine to determine whether Ashley "caused" the customer's death. The shooting here is not in furtherance of the felony, and it is justified (a term which means it was not a crime for Pop, or the officer, to shoot at Ashley; see Chapter 16). However, Pop would not have fired his weapon — and in turn, the customer would not have been killed — had Ashley not been in the midst of robbing the store. The possibility that someone would be shot during the robbery is arguably foreseeable, so under a proximate cause approach, this may be enough to show causation.

Larry burns down his house for the insurance money. Hortense, a firefighter called to the scene, is killed while fighting the fire. Has Larry murdered Hortense?

The first problem here is defining what the underlying felony might be. Is it "arson" (almost surely an inherently dangerous felony and a statutorily enunciated basis for first degree felony murder in most states) or is it "insurance fraud" (almost certainly not inherently dangerous in the abstract)? If arson, then under the common law, Larry may be guilty of murder and possibly first-degree murder. Larry's best argument is that the felony has ended, but if the felony is still continuing, he is responsible for the causally related death. Under the MPC, if the predicate crime is arson, a presumption of recklessness would be established, but Larry could probably rebut that easily unless he knew that the fire would be more dangerous than anyone might expect. See Chapter 7 for a discussion of the causation questions here. Another consideration is whether the death was "in furtherance" of the crime. Under these facts, it would be difficult to argue that it was.

Arabella, an executive vice president of CityBanc, is in desperate need of money. She decides to go to the bank on a quiet Sunday afternoon and take a few hundred thousand dollars in cash from the bank vault. She brings a large, wheeled suitcase and stuffs it with cash, as well as with jewels from safety deposit boxes in the bank. As she is leaving, George Guard comes around the corner, pulls his revolver, and says, "Freeze." Arabella, panicked, rolls the suitcase toward George and runs through the fire exit before he can shoot. The suitcase hits George, who is standing at the top of a steep flight of stairs, and pushes him down. He dies from the fall. Charged with his homicide, Arabella wishes to plead self-defense. Can she?

The general rule is that a participant in a felony cannot claim self-defense if he committed the homicidal act during the course of the felony. Street v. Warden, 423 F. Supp. 611, 613-614 (D. Md. 1976); State v. Celaya, 135 Ariz. 248 (1983). But in most of the cases so stated, the defendant was involved in a violent felony (usually robbery) and used deadly force. Here, neither of those predicates is true — larceny is not an "inherently dangerous felony" in the abstract nor as committed here, and Arabella did not use deadly force. (If the Example had said that she picked up a nearby pistol and shot George, that might raise a different question entirely.)

Mehta and Saul burglarized Sarah's house, but Sarah walked in on them and called the police. They leaped in their car and took off. As Mehta drove, Saul took several shots at a pursuing police car but injured no one. The police then stopped the car, and Mehta surrendered. The police handcuffed him and threw him into the police cruiser. As they were handcuffing Saul, however, he broke free, ran back to the car, and sped off. Five minutes later, he fired one shot at the pursuing car of Police Officer Joshua Aleman. The shot killed Aleman. The state wishes to try Mehta for Aleman's death, using a felony murder charge. What result?

The issue, of course, is whether Mehta's arrest and custody means that the felony has "come to a rest." Clearly it has for him, but not for Saul. The courts are actually divided three ways on this. Some say arrest terminates liability for the arrestee, whatever his cohorts do. See, e.g., State v. Milam, 108 Ohio App. 254 (1959). A second group says the felony continues until everyone is arrested (or comes to rest in some other way). E.g., State v. Hitchcock, 350 P.2d 681 (Ariz. 1960). A third group emphasizes the particular facts of capture, surrender, or arrest. Auman v. People, 109 P.3d 647 (Colo. 2005). Many of these decisions rely on statutory wording (although none of the statutes is explicit on this point). On the one hand, a rule requiring the arrest of all co-felons emphasizes the potential danger that any felon generates when working with others. On the other hand, accomplice liability generally requires that the risk of death be "reasonably foreseeable" by the defendant, and many states require that the defendant actually foresee the risk of death, or possibly intend that death occur (see Chapter 14). In the example as given, Mehta knows that Saul is armed — maybe he should have warned the police (perhaps the police in the first cruiser didn't warn Aleman). As a general matter, whether the felony has "come to rest" is an issue of fact for the jury. State v. Lee, 969 S.W.2d 414 (Tenn. Crim. App. 1997).

Vic was diagnosed with lung cancer at age 50. He underwent chemotherapy treatment, and his cancer went into remission. Two years later, his oncologist discovered that the cancer was back. Vic began the same chemotherapy, taking daily intravenous doses of the drug, Taxol. Vic died four months later from this cancer, which never remitted. Vic's oncologist was stunned because he was very confident that Taxol would cause Vic's cancer to remit again. He filed a report with the FDA expressing suspicion about the drug's potency. The FDA investigated Vic's pharmacist, Richard Courtney, and discovered that he had drastically diluted Vic's Taxol. An expert oncologist concluded that (a) Taxol was prescribed to Vic at a high potency and should have checked his cancer; (b) Vic's chance of remission was moderate without chemotherapy and increased significantly with the use of Taxol at the prescribed dosage; and (c) had Vic been injecting the prescribed dosage of Taxol, he probably would have lived at least several more years. Courtney admitted that he understood the dosage of Taxol prescribed and intentionally had significantly diluted every dosage of Vic's Taxol. Can Courtney be charged with murder?

The prosecution has the burden of providing beyond a reasonable doubt that the defendant proximately caused Vic's death. Here causation is complicated because the direct cause of Vic's death was his cancer. Courtney's attorney would claim that the cancer would have killed Vic anyway. However, the prosecution can readily prove that Taxol had been effective in treating Vic's cancer before; Courtney knew that this type of cancer is usually fatal without treatment; and highly diluted Taxol would be ineffective in arresting Vic's cancer. Thus, Courtney could readily predict that, at the very least, Vic's death from the cancer would be accelerated because he was not receiving a treatment proven to be effective. In all probability, Courtney's conduct hastened Vic's death. A jury could find that Vic would not have died when he did if Courtney had not diluted the Taxol. It could also determine that his conduct was readily foreseeable as a contributing cause of Vic's (early) death because the untreated cancer did not go into remission as before, but spread. Thus, the jury could conclude that Courtney's conduct was a concurrent cause (together with the cancer) of Vic's death. Remember that shortening the life of a human being for even a few moments is legally sufficient to "cause" death.

Justin unlawfully sold Aaron, who he knew was addicted to painkilling drugs, the same patch and also showed him how to release the entire dosage with one bite. Aaron took the patch home, bit down on it, and died. Did Justin cause Aaron's death?

The prosecutor has a stronger argument here. Justin knew that Aaron was addicted to pain-killing drugs. He illegally sold Aaron the "loaded" patch and showed him how to ingest the entire drug in one swallow. It is much harder for Justin to argue that he did not intend or foresee that Aaron would do exactly what Justin enabled him and showed him how to do. Justin also knew that Aaron was not a fully responsible human agent since his control over his risk-taking use of drugs was substantially impaired. The MPC analysis is the same here as for Erica's death, with the same outcome: Justin caused Aaron's death.

Following a fight with Tong, a member of the Aces, a rival gang, Paulo, a member of the Spades, drove by the scene an hour later and fired a single shot at a group of six members of the Aces, shouting, "I'm going to kill one of you #*!#!" Fortunately, no one was injured.

The prosecutor would argue that Paulo is guilty of a single count of attempted premeditated murder because, as his words clearly show, he acted with the purpose of killing at least one member of the rival gang and took both the "last step" (under common law) and a "substantial step" (under the MPC) to accomplish that result by discharging a deadly weapon at a group of people. Attempt does not require the government to prove which specific individual Paulo wanted to kill, but only that he intended to kill someone. The defendant would argue that attempt is a specific intent crime, requiring the prosecution to prove that he intended to kill a specific human being. Paulo clearly did not have a specific target or victim in mind when he shot at the group. At most, Paulo engaged in very dangerous conduct that created a significant risk of death, but, in fact, no one died. Thus, he may have committed the crime of reckless endangerment or even assault with a deadly weapon, but not attempted murder. The government would probably succeed in obtaining a conviction of attempted murder. Paulo did not care which individual he killed, but he certainly purposed the death of at least one of the persons in the group and tried to achieve that result. Thus, he has satisfied the mens rea and actus reus of attempt.

An hour after a fight with Tong, a member of the Aces, a rival gang, Paulo drove by the scene and threw a grenade at Tong, who was standing right next to six other members of his gang, shouting, "I'm going to kill you, Tong!" Fortunately, no one was killed even though the grenade exploded, injuring Tong and several other gang members.

The prosecutor would argue that Paulo is guilty of seven counts of attempted premeditated murder; one count for each member of the group. She would point out that Paulo clearly admitted that he intended to kill Tong; thus, there is no disputing his mens rea or culpability as to that victim. Surely, throwing a grenade that exploded in close proximity to the specifically targeted victim (Tong) satisfies all actus reus tests. She would further argue that a jury could readily infer that Paulo intended to kill the other members of the gang (despite the absence of words manifesting that intent) because he used a weapon that could readily kill everyone in the immediate vicinity of the intended victim (called the "kill zone" by some courts). The defense would argue that Paulo only intended to kill Tong. Thus, he did not act with the premeditated objective of killing the other gang members. Thus, he can only be convicted of a single count of attempted premeditated murder and, perhaps, six counts of reckless endangerment or assault with a deadly weapon. California would allow convictions under the prosecutor's theories in both of these examples. People v. Stone, 46 Cal. 4th 131, 205 P.3d 272 (2009).

Jasmine is subject to a court order forbidding her from being physically present between the hours of 2:00 p.m. and 2:00 a.m. in an area designated as a known prostitution district. Failure to comply with this order is a criminal offense. At 10:00 p.m., Jasmine was released from the county jail after serving a 30-day sentence for prostitution. Unfortunately for Jasmine, the county jail is located within the district from which she is banned. While walking to a bus stop a few blocks away to catch a bus home, she is arrested and charged with violating the court order. Actus Reus?

The prosecutor would argue that this is a strict liability offense (see Chapter 6). No mens rea or state of mind about being present in an area from which she has been judicially excluded is required. There can be no doubt that Jasmine was, in fact, physically present here in violation of a valid court order. However, recall that even strict liability offenses require a voluntary act to be punishable. The defense would argue that Jasmine did not commit a voluntary act. Officials released her from the jail at 10:00 p.m. and had no choice but to violate the court order. Surely she cannot be required to stay in jail overnight, assuming this was even an option for her. Implicit in the court order under these circumstances must be a condition that she leave the district in a reasonable period of time. She was trying to do just that. Otherwise, the police could manufacture crime by simply releasing individuals subject to similar exclusion orders at a time that would automatically generate new offenses.

Seth was civilly committed as a sexual predator because he suffers from a mental abnormality or personality disorder that makes it difficult, if not impossible, to control his dangerous sexual behavior. He was on conditional release from a secure facility, living in a halfway house and working in a grocery store. Suddenly overcome by a sexual compulsion, he groped a women's breast for sexual pleasure. Can he be criminally convicted and punished for an act that is very difficult — perhaps even impossible — for him to control?

The prosecutor would claim that Seth committed a voluntary act and is, therefore, criminally responsible for his conduct. He purposely put his hands on his victim's breast for his own sexual pleasure. His consciousness was not impaired in any way. He knew exactly what he was doing and why. His conduct was the result of a clear intention, determination, and desire and, thus, willful. Even hard choices are the result of "free will" and, consequently, constitute voluntary acts. Defense counsel would argue that Seth's behavioral controls were so severely impaired by an underlying mental condition (which he did not cause) that the government had already established in a trial that he could not refrain from engaging in precisely this type of criminal conduct. Nor can the prosecution point to an earlier voluntary act, such as taking an intoxicating drug or substance that induced this mental condition. How can the government both civilly commit an individual because the criminal law is unable to deter this type of behavior, while at the same time insisting that he acted voluntarily? How would you rule?

Chris and Frank got into a heated argument outside Frank's trailer. Chris threatened to "take Frank's head off," and swung at Frank but missed. Chris then walked quickly to his truck, which was parked about 50 feet away, turned it around, and slowly went past Frank, with the driver's window down. Just as the truck passed, Frank "felt something whiz by" his head. He reached down, picked up his ever-present Winchester rifle and shot twice at the truck, which was moving away slowly. The second bullet hit Chris in the neck, killing him. There was no weapon in Chris's truck, and neither the alleged bullet Frank "felt" nor its source were ever found. At his trial for second degree murder, Frank sought instruction on (1) self-defense; (2) provocation. Lilith, the prosecutor, argued that the two concepts were incompatible — self-defense requires a reasonable fear of injury, while heat of passion showed no "reason" at all. If you were the trial judge, what would you do? (Sorry — recusal is not an option.)

The self-defense claim is on thin ice. After all, Frank did not see Chris shoot at him. Indeed, it may have been a figment of Frank's imagination. Moreover, Chris was driving away, so it may be difficult for Frank to claim "defense" as opposed to "revenge." Nevertheless, a jury might conclude that Frank had a reasonable fear that Chris would return, or even throw the truck in reverse (contrast the case if Chris had driven at a high rate of speed after the "bullet" whizzed by Frank). If the jury rejects the self-defense claim, however, there is still some evidence that would allow them to find that, believing himself to have been a victim of a shooting, Frank was "provoked" by Chris, and had no time to "cool off" (even under the common law). If, additionally, the jurisdiction recognizes not merely anger, but fear, as a possible impetus to action, the claim of heat of passion might be sustainable. It was so held in Howell v. State, 917 P. 2d 1201 (Alaska App. 1996).

Boris and his wife Natasha are sitting in their car at a traffic light when they are suddenly confronted by six men wearing ski masks and armed with machine guns who "hijack" the car. Three miles later, the men kidnap a police officer and handcuff him. They then force Natasha to drive to a remote spot, where they order Natasha to hold the officer still while Boris shoots him in the head. The men threaten to kill Boris, Natasha, and their two children (who are not in the car) unless the two comply. Natasha holds the officer, but Boris, after firing three wild shots, faints. The men then order Natasha to shoot the officer while they hold him. She does so.

The threat here is obviously serious enough to constitute duress: It is a threat of death or serious bodily harm that would make any person reasonably fear that it will be carried out in the immediate future. The threat to the children, however, might not be "imminent" enough under common law. If the threat had only been to the children, the original doctrine of the common law might have barred the use of the threat at all, as it sometimes required that the threat be to the defendant personally. Most courts, however, would now allow a jury to consider the threat. Nevertheless, under the common law, neither Boris nor Natasha would be able to assert the issue since they are charged with homicide. The Model Penal Code would allow both to claim duress. Some states have found a "compromise" position by allowing defendants to reduce their liability to manslaughter.32 There is one other possibility. Since the threat was to kill four people, and only one was killed, Boris and Natasha might have a choice-of-evils (necessity) claim. This depends on whether the common law would have allowed the claim in a homicide case, notwithstanding Dudley and Stephens (remember — there, three were saved, although one was killed). Moreover (although this is an arcane rule), some courts still restrict necessity to those cases in which a force of nature posed the threat. Since the threat here is human, that doctrinal restriction would have been sufficient to preclude a claim of necessity.

James has spent all day conversing with Johnnie Walker Black and by now is severely drunk. He fantasizes that Ralph's Maserati belongs to him, and he takes it for a very long drive, never intending to return it. Neither the police nor Ralph thinks this is funny. Has James committed larceny?

There are two ways of explaining why James has not committed larceny. First, he was truly unaware that the property belonged to Ralph and therefore did not have the requisite mens rea. In that unfortunate jargon of the common law, he lacked the "specific intent" required for larceny. The other explanation, which is the same explanation in different words, is that his "claim of right," however misguided, is a "defense" to the charge of larceny. In either event, James is exonerated. The MPC reaches the same result under either the claim of right provision or under the general definitions of culpability. As the commentary to the Code puts it, "The claim-of-right defense . . . can thus be regarded as redundant." However, the Code includes a special section on the claim of right to underscore the point about culpability.

Reba, aware that she is "drunk," nevertheless attempts to drive home. She weaves across a median and collides with another car head on, killing two occupants. Of what level of murder, if any, is she guilty?

There is no evidence that Reba had the intent to kill anyone when she began driving, let alone that she premeditated the victim's death, so she would not be guilty of first-degree murder under the common law. This would almost certainly not have qualified as "depraved heart" murder under earlier views. However, an increasing number of courts, outraged by the number of highway fatalities caused by drunk drivers, have allowed second-degree murder charges to go to the jury, at least where it can be shown that the defendant was "excessively" drunk and had been warned and cautioned about his driving. Jeffries v. State,169 P.3d 913 (Alaska 2007); People v. Murray, 225 Cal. App. 3d 734 (1990). Given the increasingly widespread knowledge of the risks associated with driving drunk, this comports with the second definition of "malice aforethought," requiring knowledge that the act will probably cause the death of, or grievous bodily harm to, some person. Reba's culpability under the MPC would likely be dependent on her criminal history. If Reba has an extensive history of DUIs, there may be an argument that her behavior was reckless and manifesting extreme indifference to human life, amounting to murder. However, the strongest argument would be that her behavior was reckless, or at least negligent, calling for a manslaughter charge.

Same facts as 1b, except that Papa rams his truck into the wrong room, either because (a) the clerk gave him the wrong number, or (b) Papa misread the number on the room. What crime(s)?

These are misaim cases, and the difference in the reason for the misaim would seem irrelevant. The question here is whether the law should mitigate Papa's conduct because of his mental state ("partial excuse") or preclude mitigation because the victims did not "ask for it" ("partial justification") (see Chapter 15). The issue here is whether the law should look solely at the mens rea of the defendant, without knowing the results of his actions, or whether the law should consider the fact that an innocent person was killed, EVEN IF the defendant was in a provoked, or otherwise extremely emotional, state. IF the issue is whether the defendant (or others like him) is morally culpable, then the law should consider whether the defendant had "lost control" and reduce the punishment accordingly. If, however, we consider the innocent victim, the calculus may be revised. Most courts will allow the defendant to claim heat of passion. Under the MPC, there is no requirement that the victim (or anyone) have "provoked" the defendant, and it goes to the jury. (Do you see a pattern here?)

Paul's father is dying of terminal cancer. He is in the hospital, in severe pain. The doctors say that he could continue to live for several years, but that he will not improve. His son comes to the hospital several times a week for several months. One night, he finds a way to deceive the nurse into leaving the hospital room, pulls out a gun, and shoots his father four times. He waits for the police, and explains that he killed his father to end his suffering. If he is prosecuted for his actions, will he claim excuse or justification?

These facts are typical of euthanasia cases and track those of State v. Forrest, 362 S.E.2d 252 (N.C. 1987). While Paul could, like Kervorkian, claim justification (ending his father's pain was a greater good than having his father continue to suffer in pain for years), he could also claim, which Kervorkian could not, that his killing was excused. He would argue that his personal anguish and the great emotional stress placed upon him by seeing his father in this condition simply overwhelmed him and that while he killed premeditatedly, he simply had no "real choice." Under the common law, this claim would not be heard, but under the Model Penal Code, it is at least arguable that the killing might be seen as done in "extreme emotional or mental disturbance" and reduced to manslaughter. Many — perhaps most — of these cases are never prosecuted and, quite often, the grand jury refuses to indict, or the trial jury acquits.

Jack, a famous movie actor, is driving on a major road when Bert's car pulls in front. Enraged because he believes he has been "cut off," Jack follows Bert's car to the next intersection, where both cars stop for a red light. Jack leaps out of his car with a golf club in his hand, and begins screaming at Bert, "I'll kill you, you S.O.B." He then begins smashing Bert's car. Bert jumps out of his car and wrestles Jack to the ground, breaking two of Jack's fingers.

These facts show the ambiguity in many altercations. Although Jack's words carry a threat of serious bodily harm or death, his actions belie them. He has used force against Bert's property but not against Bert. Yet he has threatened Bert's person. If Bert used deadly force, it might be deemed excessive. On the other hand, it is not clear whether the force that Bert used could be characterized as deadly force. Whether Bert could reasonably fear serious bodily harm may be one for the jury.

Same facts as in 2a, except that Sylvester has kept apprised of the regulations, which require only that crud A, which has a specific percentage (20 percent) of toluene, be disposed of as required; crud B is not covered. Sylvester is not sure, however, whether the substance he has is crud A or crud B. He calls in his chemist, who tells him that the material is not crud A. The chemist's conclusion, alternatively (1) is wrong because the material contains 24 percent toluene, but he believes that only material containing more than 30 percent toluene is crud A; (2) is wrong because his analysis erroneously shows that the material Sylvester has contains less than 20 percent toluene, and therefore is not crud A. What is the result?

These variations raise the question of the relation of mistake of law and mistake of fact. In (1), Sylvester's "mistake" is one of law, derivative of the chemist's mistake of law. Since the mistake really involves a definitional error (what is the legal meaning of "crud"?), it can be characterized as a mistake of legal fact. Under earlier common law views, this would not have been relevant; Sylvester's error would be seen as one of law, and it would be irrelevant. Under Staples, however, the mistake might be exculpatory. Staplesrequires that the government show that the defendant knew every "fact" that gave rise to his legal obligation. Since the definition of crud A is a "legal fact," one could argue that Staples gives Sylvester a plausible claim of mistake. If the statute requires "willfulness," then Cheek and Ratzlaf arguably affect the case as well and allow Sylvester's claim that he did not know of the duty to dispose. On the other hand, Sylvester's reliance on his own employee might be unreasonable per se, since employees are likely to tell the boss what he wants to hear. At least in one New York case, People v. Marrero, 69 N.Y.2d 382 (1987), a state court required an official interpretation of law (rather than an employee's) in order to justify a mistake of law. This would require an official interpretation by the state attorney general of a statute, and an employee's view of the statute would not suffice. In (2), Sylvester's claim comes closer to a mistake of fact. He knows that he must dispose properly of anything that contains more than 20 percent toluene, and is told that this substance does not contain that percentage of toluene. He may have a mistake of fact (or a mistake of "legal fact") here; his action looks reasonable, and most people would (or could) rely on a chemist for this information.

Sherrie and Bill Green agreed with Dr. Feelgood to exchange stolen goods for amphetamines. The Greens would steal household goods and bring them to Dr. Feelgood, who would then write them a prescription for amphetamines. Eventually, the Greens and Dr. Feelgood were arrested and charged with conspiracy to unlawfully dispense controlled substances. Dr. Feelgood's lawyer argued that laypersons cannot conspire to illegally dispense prescription drugs because laypersons are not authorized to prescribe them. Is Dr. Feelgood's lawyer correct?

This argument is clever but will fail. This is a variation of a defense of "legal impossibility." However, a person can be guilty of conspiring to commit a crime even if he could not commit the substantive crime himself. It is sufficient where persons knowingly participate in a conspiracy to have one conspirator who is capable of committing the offense do so. This is also not a case where an individual who is immune from conviction for committing the substantive offense is being convicted by the use of conspiracy.

Karen has watched her brother, Rick, die slowly and painfully from cancer over the last six months. Totally distraught, she buys a gun and decides to kill Rick. Two days later, she walks into the hospital room, deceives a nurse into leaving the room, and then shoots Rick at point-blank range in the head five times, killing him instantly. What level of homicide?

This case is intended to be almost precisely the same as that in Example 1 to illustrate a point: The "premeditation" formula sometimes is over-inclusive as well as under-inclusive in assessing moral blame. This Karen thought for a long period of time, about taking life before acting, and thus, like the first Karen, "premeditated." Under the common law, she, too, would be found guilty of first-degree murder and of murder under the Model Penal Code. But Karen's premeditation does not indicate that she is a "wicked" or "depraved" person. On the contrary, she has tried to do the right thing (as she saw it) and has, arguably, acted from the best of motives. (See Chapter 4.) There is something jarring about treating her as equally "culpable" or equally "bad" as Karen in Example 1, no matter how one feels about euthanasia as a general matter. We will explore and explain this tension at various points in the book, especially in the materials on "new excuses" (Chapter 17). However, as the law now stands, Karen is a first-degree murderer — or, under the MPC, simply a murderer — and may be executed. Of course, it is not certain the prosecutor will charge Karen with any homicide, nor that the grand jury will indict, nor that the petit jury will convict. Often, at some level of discretion, the decision is made not to move forward. But that is discretion, not law.

While driving down the street at a legal rate of speed, Clara is suddenly beset by a mob screaming at her and clearly intending serious bodily harm. The streets are blocked, and she drives on the sidewalk, in desperation, seeking an avenue of escape. She is arrested and charged with driving on a sidewalk.

This case poses the same dilemma as that of the prison escape cases. Clara has no claim of duress, since the mob did not want her to escape. On the other hand, under the earlier common law, she has no claim of necessity since the force is not a teleological one. Some courts have created a claim that they have called "duress of circumstance" to reach this case, while others have simply left the case to the jury on the issue of "responsibility." Some writers have urged rejection of any such "situational duress" claim, lest it swallow all concepts of free will and moral culpability; yet, this may show a lack of faith in the jury's ability to weigh these intricate and difficult moral issues.

Same facts and question as in Example 4a, except that the statute provides that "intent to defraud is presumed if the overdrawn check is not made good within 30 days after the payor has been notified by the bank of the overdraft."

This change in the statutory language may have dire consequences for the Hamlets. Surely it is the case that many people who innocently write such a check, after being informed of the overdraft, make up the difference immediately. And the statute goes further: it allows a 30-day grace period, just in case (as here) there was an error in the keeping of the accounts. Thus, the presumed fact (fraudulent intent) does seem to flow from the predicate fact (failure to make up the deficit within 30 days) in many cases. This may be sufficient to meet the "beyond a reasonable doubt" test enunciated in Allen. Although in the way we have worded the question it may seem that the Hamlets are "innocent," a jury could certainly infer negligence, or even recklessness, from their failure to provide measures to take care of such matters should they arise while they were away. Of course, the Hamlets may in fact rebut the statutory presumption by producing evidence of nonculpability. "Fraud" generally requires "specific intent," so that even recklessness would be insufficient as a predicate for the crime.

Suppose, instead, that Boris and Natasha are kidnapped and told to help rob a bank by holding open the bags into which the money is put. During the robbery, one of the original robbers accidentally shoots and kills a teller.

This death falls under the felony murder rule. (Go back to Chapter 8 if this sounds only vaguely familiar.) Can duress be a defense to felony murder, even if not to "regular" murder? Most courts have said yes. Whether this would be true if it were one of the duressed who accidentally killed the teller is unclear.

Suppose, instead, that Margaret, a new worker who had never seen Theresa before, quietly whispered to Fran "Theresa looks like Scarface," but Theresa overheard that remark and killed Margaret on the spot.

This exacerbates the problem. If, in Example (a), Margaret might be said to have "asked for it" by riding Theresa day after day, that can surely not be said about Margaret. Even if Margaret had spoken these words directly to Theresa, it would stretch the notion of partial justification to say that Margaret's barb "asked for" Theresa's reaction. On the other hand, if the reduction is a partial excuse, then the focus should be more on Theresa and the effect that Margaret's remark had on her.

Theresa, a model, was savagely attacked by her boyfriend, who threw acid in her face, resulting in her severe disfigurement. When she returned to work, virtually all of her co-workers were sympathetic. Maggie, however, greeted her with the comment "You look like you were run over by a lawn mower." Every day, for weeks, Maggie continued her barrage of insults and insensitive comments. As Theresa walked into the office one day, Maggie exclaimed, "Look, everyone, Scarface is back." Theresa killed Maggie on the spot. What is the likely result?

This example has two problems. First, the provocation consists of "only" words, and not even informational words at that. Under the original common law, this would be sufficient to prevent Theresa from claiming heat of passion. At least some states today might recognize some insulting words as sufficiently provocative to raise a jury issue. But that's not the end of it. One insult, even as snide and dastardly as Maggie's, is unlikely to be sufficient provocation under the common law. Thus, Theresa is going to have to argue that the law should view the threats as "cumulative." As noted in the text, courts have been divided on whether to allow such evidence.44 Given the persistence of Maggie's nastiness (combined, her defense counsel would argue, with Theresa's agony over her condition), Theresa's reaction is "reasonable." Certainly, in the words of the MPC, it is the result of "extreme emotional distress." We considered (and you should, too) having the insults here be racial in nature: Is the victim of constant racial discrimination, who suddenly hears the "n" word one time too many, from someone he has never met, entitled to have the jury consider a reduction to manslaughter? The Model Penal Code would be more likely both to allow evidence of the words and of the cumulative nature of Maggie's acts. Teresa would be much better off in England, where judicial decisions prior to 2009 had made clear that any physical characteristic (a permanent limp, kyphosis (having a humped back, etc.)) would be part of the reasonable person's characteristic. That basic premise has been codified in the new statute.

Eric and Ian are students at Columbia, a large suburban high school. They sell drugs to a number of students. Pat, a friend, often buys drugs from them. Eric and Ian know that Pat's father is an avid gun collector and that Pat has access to his father's large gun collection. Eric and Ian have frequently told Pat that they want to get their hands on guns like those his father owns so they can kill all the "jocks" and "punks" at their school. One day Eric and Ian offer Pat a very large amount of cocaine in exchange for borrowing several semi-automatic guns and a lot of ammunition from Pat. Pat knows something is brewing because Eric and Ian never make deals — they always make him pay top dollar for his drugs. Nevertheless, Pat agrees to loan them the guns and ammo in exchange for the drugs because he is not worried for his safety — after all, he is not a jock nor a punk. To be extra safe, Pat decides he won't go to school until the guns are returned. The next day Eric and Ian open fire in the school cafeteria with the guns and ammo they borrowed from Pat. Ten students are killed and many more are wounded. Is Pat guilty as an accomplice of these murders and attempted murders?

This example is based loosely on the Littleton, Colorado high-school massacre. The tragedy really makes one think about what culpability should be required for accomplice liability. Pat loaned his father's semi-automatic weapons and a large amount of ammunition to Eric and Ian. The prosecutor could probably prove Pat knew they intended to use them to kill fellow students at their high school. Eric and Ian had often told Pat they wanted to use his father's guns to kill certain students. Pat also knew something big was up because Eric and Ian had never let him swap for drugs; they always insisted on cold cash. Finally, Pat avoided the crime scene precisely because of what he expected would happen. Nonetheless, without additional evidence, it would be difficult to prove that Pat loaned his father's automatic weapons with the purpose of assisting or encouraging their crimes. Pat would argue that his purpose was simply to obtain drugs and that he was indifferent as to what Eric and Ian did with the weapons and ammunition. Because Pat was able to obtain a large amount of drugs without paying for them — only by loaning these dangerous items — the prosecutor could argue that Pat had a "stake in the venture" and thus did act with purpose to assist Eric and Ian. The MPC and a number of jurisdictions would not convict Pat as an accomplice unless the prosecutor could prove Pat acted with such purpose. Other jurisdictions, however, would convict Pat if he had had knowledge that the guns and ammunition he loaned his friends would be used to commit a serious crime. Criminal conviction and punishment of such "enablers" is necessary to deter them and others like them from providing such aid. A much stronger case can be made that Pat had such knowledge. In some states, Pat could be convicted of criminal facilitation because he knowingly provided significant aid, the weapons and ammunition, to someone he knew (or, in some states, had reason to know) intended to commit a serious crime. In this case, Pat would be punished less severely than Eric and Ian.

Hector suffers from paranoid schizophrenia. A uniformed officer in a patrol car with lights flashing responded to a neighbor's complaint about extremely loud music coming from Hector's house. As the officer approached his house, Hector opened the door, carefully looked at him, and shot him dead. The prosecutor has charged Hector with intentionally killing a police officer in the line of duty, and is seeking the death penalty. The defense seeks to introduce the evidence of a psychiatrist, who would testify that Hector suffers from a mental disorder known as "paranoid schizophrenia." He is extremely delusional, often hearing strange voices in his head threatening him with death, and believing that aliens (sometimes disguised as government agents) are trying to kill him. In the expert's opinion, Hector, as a result of this mental disorder, was psychotic or out of touch with reality at the time of the shooting, and believed that the victim was an alien disguised as a police officer who was about to kill him. The expert would also testify that paranoid schizophrenics often believe erroneously that they are being persecuted and even threatened with death. People diagnosed with this illness can also suffer from auditory hallucinations (hearing voices when no one is present), and they often play music very loudly to drown out these disturbing voices. The prosecutor argues that, based on a state statute, this testimony should be admitted only to establish legal insanity, and not to prove that, because of his illness, Hector did not intend to kill a police officer. He would, in turn, present a witness who heard Hector say that he wanted to kill police officers. The prosecutor intends to argue that Hector played his music loudly to lure a police officer to his home so he could kill him.

This example is based on the Clark case. The defense will argue that this evidence is crucial to assessing the defendant's criminal responsibility. It proves that, at the time of the shooting, his client suffered from a serious mental disorder that rendered him unable to know what he was doing or that it was wrong. Thus, under either the M'Naghten or MPC insanity tests, Hector should be acquitted. Counsel would also contend that expert psychiatric testimony on the defendant's mental illness and its impact on how he perceived the world around him is crucial to determining whether Hector acted with the intent to kill a police officer. The expert would testify that Hector was playing loud music to drown out these terrifying "voices," not to lure a police officer to his death. His professional opinion is that Hector perceived the approaching figure to be an alien disguised as a public official who was out to get him; thus, he did not know he was killing a police officer. Rather, he believed he was defending his life against an extraterrestrial attacker. This evidence is logically relevant to the presence or absence of mens rea and, without it, an innocent man may be convicted and executed. The prosecutor would argue that, under state law, this evidence is admissible on the insanity defense, but the defendant should not be allowed to use the "diminished capacity" defense. Otherwise, the defense will get "two bites at the apple"; that is, he will have two separate theories, legal insanity and lack of mens rea, available to avoid conviction and punishment for this very serious crime. The prosecutor will also claim that the opinion testimony of mental health experts can be very confusing to jurors and invite inappropriate sympathy for the defendant. How should courts deal with this type of situation? Note that if a state does not have an insanity defense and does not allow the diminished capacity "rule of evidence" defense, expert evidence like this might be admissible only at sentencing. Even then, it might not have any impact.

Now assume that the reason Bernice is upset is because Barnaby is of a different race than she. Any difference in the result?

This example takes the question one step further. Certainly, we wouldn't want to "validate" Bernice's racism by allowing it to mitigate her culpability. In recent years, several defendants have claimed "gay panic" when they killed someone who made a homosexual advance upon them. In fact, this example is based upon a real event in which a gay man announced, during the taping of a television show, his love for the male defendant, who then killed him, although the actual killing occurred several days after the taping of the show. The defendant was found guilty of second-degree murder. See People v. Schmitz, 586 N.W.2d 766 (Mich. App. 1998), but his conviction was reversed on other grounds. Although the courts have generally refused to allow a heat of passion (or EED) claim, the writers have been divided — some arguing that if the defendant truly was outraged, and had lost control, (s)he should not be lumped together with "depraved heart" killers. Others have argued that the law should not tolerate homophobia, even as a mitigation, and that the law should require the defendant to learn how to control his animosity toward others. Compare Bradfield, Provocation and Non-Violent Homosexual Advances: Lessons from Australia, 65 J. Crim. L. 76 (2001); Dressler, When "Heterosexual" Men Kill "Homosexual" Men: Reflections of Provocation Law, Sexual Advances, and the "Reasonable Man" Standard, 85 J. Crim. L. & Criminology 726 (1995). Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008).

Michelle is indicted under a federal statute that makes it a felony for "any person to . . . knowingly deliver or cause to be delivered . . . any false or misleading or knowingly inaccurate reports concerning" certain kinds of information. She concedes that she knowingly delivered reports that, as it turned out, were false, but she claims that she did not know the reports were false, and that this is a valid defense. Is she right?

This example, based on United States v. Valencia, 394 F.3d 352 (5th Cir. 2004), demonstrates the problems of statutory interpretation created by an ambiguous statute. Clearly, the legislation requires that the defendant "knowingly" deliver information and that the information be "knowingly" inaccurate. But the word "knowingly" does not appear before "false." Since the legislature could have written the statute to prohibit delivery of "knowingly false and knowingly inaccurate" information, it can be argued that it did not intend to require the government to prove that Michelle knew the information to be false. In Valenciaitself, the court concluded that X-Citement Video (see page 83) required construing the statute as mandating that the government prove that Michelle knew the information was false. Under the Model Penal Code's "element analysis," this is an easy case. "Falsehood" of the information is clearly a "material element," and the mens rea word "knowingly" clearly modifies "false."

Paul, a licensed doctor, believes that the medical profession should help those who are truly terminal and who have made what appears to be a rational decision to die, and do so with the most dignity possible. He makes his views well known, and over a period of several years assists several people in committing suicide, after interviewing them extensively to assure himself that they are not clinically depressed or otherwise unable to make such a decision. He then tapes one such death and puts it on national television. If he is prosecuted for his actions, will he claim excuse or justification?

This is a (very) shortened version of the facts involving Dr. Jack Kervorkian, sometimes referred to as "Dr. Death," who conducted a national crusade in the 1980s and 90s to call attention to this issue. He was prosecuted several times, all of them unsuccessfully, except the last one, which resulted in his conviction for second-degree murder. Kervorkian was clearly claiming a justification — that while the law prohibited taking life, either directly or indirectly, in a premeditated manner, there were some situations where taking life outweighed the suffering that continued life would bring to the patient. He argued that, as a doctor, his first duty was to relieve his patients of pain.

Paul is at a party. Melissa offers him a marijuana cigarette, which, unknown to Paul, contains "angel dust," a hallucinogenic drug. Paul smokes the cigarette and has a psychotic-like reaction. Believing Melissa to be Satan, he savagely beats her. He is arrested and charged with aggravated assault. Can he introduce evidence that he smoked a marijuana cigarette or that it was laced with "angel dust"?

This is a complicated case because it is, arguably, a case of both voluntary and involuntary intoxication. Paul knew that he was committing a crime — that is, smoking marijuana, an intoxicating substance. However, he did not know, or have reason to know, that he was consuming a far more powerful mind- and mood-altering drug. (See Chapter 6 for a review of the "greater crime" doctrine.) Under common law, Paul can use evidence of voluntary intoxication to negate specific intent. If the aggravated assault statute proscribes an assault "with intent to inflict serious bodily injury" or other such language, it is probably a specific intent offense. If the court considered this a case of voluntary intoxication, Paul would be allowed to introduce this evidence to negate that specific intent. However, he could not use it in a general intent crime. Most likely, a general intent charge of assault is a lesser included offense, and the jury could not consider this evidence on that charge. Under the MPC, however, Paul can use evidence of self-induced intoxication to negate any element of the charged crime except recklessness and negligence. Because a jury could consider this evidence on all charges, Paul has a better chance under the MPC than under common law. If the jury considers this a case of involuntary intoxication, then both under common law and the MPC Paul can introduce this evidence to show that he did not know what he was doing (he thought he was attacking the devil) or that it was wrong. Thus, he may be better using involuntary intoxication as a defense. The problem, of course, is that the judge may rule that this is a case of voluntary intoxication because Paul knew that he was taking an illegal substance; therefore, he consciously disregarded the risk that he might consume another illegal substance.

John and Evelyn have a heated dispute over John's excessive golfing, an issue that has divided their marriage for years. After five hours, John, more in frustration than anything, reaches into his golf bag and pulls out a five iron. After 10 seconds, he swings it once at Evelyn and hits her in the head, killing her instantly. Is this murder?

This is a difficult case. Under the common law, a jury could find that John intended to kill or seriously injure Evelyn, or that he "thought about the risks involved and went ahead anyway," thereby demonstrating a "depraved heart." He therefore has "malice aforethought" and is guilty of common law murder. But did he premeditate so as to be guilty of "first-degree murder" under American statutes? As in Example 3, John's 10 seconds is probably sufficient time to allow a jury to find not merely intent, but premeditation. In a similar case, a court found the defendant guilty of first-degree murder and sentenced him to life in prison. Commonwealth v. Carroll, 412 Pa. 525 (1963). Under the Model Penal Code, "premeditation" is not the key. The jury could easily find "purpose" and thus render the defendant eligible for the death penalty. And they could even more readily find that John was "reckless under circumstances manifesting extreme indifference to the value of human life." Who said golf was not a dangerous sport?

During the course of a drug deal in New York City, Paula, thinking Reuben was trying to rip her off by selling her harmless powder as crack cocaine, shot at Reuben intending to kill him. Reuben almost died but eventually recovered. Unknown to Paula, Reuben was an undercover state narcotics officer who was selling her real crack in a "sting" operation in order to then arrest her. In New York, first-degree murder includes acting "with intent to cause the death of another person, . . . caus[ing] the death of such person; and . . . the person was a police officer . . . killed in the course of performing his official duties." Is Paula guilty of attempted first-degree murder?

This is a tough one! Paula clearly intended to cause Reuben's death and took a substantial step (and the last step) toward accomplishing her goal. Thus, she can surely be convicted of at least attempted second-degree murder. But must the prosecution prove that Paula also intended to kill a police officer in the course of performing his official duties? The prosecution probably could not prove this because Paula would not have knowingly bought drugs from a police officer, nor do any facts indicate that Paula knew Reuben was an undercover police officer. Under common law, Paula must know all circumstances of the target crime. Because she did not intend to kill a police officer while he was performing his duties, she could not be convicted of attempted first-degree murder even if this circumstance is a strict liability element in the target offense. Under the MPC, however, the mens rea toward circumstances of the target offense determines her guilt. If the circumstance that Reuben was a police officer performing his official duties is a strict liability element, then Paula would be guilty of attempted first-degree murder. (Under the MPC, however, it will be a material element.) If, on the other hand, the mens rea of "purpose" or "knowledge" also applies to this circumstance, then she would not be.

Claudius Hamlet's checkbook showed he had balance of $5,000. Just before leaving with his wife, Gertrude, on a six-month vacation to Nepal, he wrote a check for $3,500 as payment to a roofer. Unknown to him, Gertrude had written another check on the same account for $1,800. As they stepped off the plane six months later, they were arrested for fraud. The relevant statute provides that anyone "who overdraws on his bank account" is presumed to intend to defraud the payee. In their mailbox are three notices from the bank indicating the overdraft. At the trial, the judge instructs the jury of the statutory presumption. Can Claudius and Gertrude successfully attack this instruction if they are convicted?

This is a trick question. It may well depend on what else the jury was told. After Allen and Sandstrom, the complete instructions to the jury are critical. And it would appear that the instruction established a "mandatory presumption" which the jury could interpret as shifting either the burden of proof or the burden of production. If the jury understood the instruction as shifting the burden of proof, then it violates Sandstrom. But even if the jury understood the instruction as only shifting the burden of production, Claudius and Gertrude are probably safe. After all, many people make "innocent" mistakes involving their checkbook balances, whether for large or small amounts. It is not even a case of "more likely than not," much less "beyond a reasonable doubt," that such people intend to defraud their payees. The presumption is therefore empirically invalid. Under the MPC, the answer is again very simple — no presumption, no matter how "commonsensical," can shift the burden of proof. Problem solved.

Striker, a star pitcher for the local baseball team, is also a leading cocaine pusher. He has arranged to meet his latest purchaser near a movie theater in a section of town with which he is not familiar. As the sale goes down, he is arrested and charged with "knowingly selling cocaine within 1,000 feet of a school property." Some 900 feet away, hidden by trees, a railroad trestle, and an interstate highway, is a warehouse owned by the Board of Education and used to store books. The penalty for knowingly selling cocaine (a different statute) is 5 years. The penalty for this statute is 20 years. Striker argues that he did not know, and could not reasonably have known, that he was near school property. What result?

This is an example of the "greater crime" theory. Drug sale, after all, is a crime by itself. Many states, following the example of the federal government, have passed "drug-free school zone" statutes such as the one involved in this example. These statutes vary in form. Some, such as the one here, are "free-standing" crimes. Others, including the federal statute, build on a preexisting statute that bans drug sales, and declare that any sale that occurs near a school yard doubles the maximum penalty. With the latter, the argument that "school property" is not a material element of the crime, but merely a "sentencing enhancer," is plausible. Under the statute, as presented in this example, however, it is much more likely that a court should find it to be a "material element" of the crime, thus requiring the state to prove mens rea with regard to the proximity of school property. Some courts, however, have simply ignored this distinction and held that there is no mens rea requirement as to that element. Several states have expressly declared in a statute that lack of knowledge that the event occurred near school property is irrelevant as to guilt. Under the Code, Striker's term will be much shorter. He can be convicted of selling near a school yard, but his sentence can't be more than that for "merely" selling. The Code totally rejects the idea of punishment for a "greater crime." See generally Annot., School-Zone Statutes, 27 A.L.R.5th 593 (1995). It looks like Striker will be pitching for the state prison team for the next few years.

On a very hot summer night Alan, a homeless person, breaks into the house of Beatrice, who he knows is away for the week. He is prosecuted for burglary, which is defined as "the breaking and entering of the dwelling house of another" and is punishable by a mandatory five years in prison. The statute further provides, however, that if the defendant proves he did not intend to commit a felony inside the house, the penalty shall be no more than two years in prison. Alan claims that he only wanted to sleep in an air-conditioned place, and there is no evidence that he took, or even attempted to take, any items in the house. Can the state make Alan bear this burden?

This is difficult. Under the common law, burglary was defined as requiring the intent to commit a felony in the house. It thus appears that the legislature has taken one of the elements of this common law offense and turned it into a "defense." The legislature cannot alter the common law rules by turning a common law "element" into a defense. The statute is unconstitutional. The state, however, would argue that the issue should be one of proportionality, not history. Five years in prison, it would contend, would not be constitutionally disproportionate to the offense of breaking and entering a dwelling house. Thus, the state is giving Alan a break by reducing his exposure by three years, and thus can place the burden upon Alan to prove lack of (ulterior) intent. The MPC would not allow the state to put the burden on the defendant of any "excuse" or "justification." Problem solved. But would five years in prison be constitutionally disproportionate to the mere offense of breaking and entering a dwelling home, if there was no intent to commit a felony there? The example could be made even more difficult if the penalty for burglary were one to five years in prison so that even a real burglar could be punished less than Alan. Then the state would be giving Alan a break by reducing his exposure by three years, but not necessarily treating him as less dangerous than a "real" burglar.

Russ, a bank teller, decides one day to embezzle $50,000 from the bank. As he walks unarmed out of the bank with the money in his briefcase, he non-negligently slips on a bank pen left on the floor by some customer and falls into Jezebel, the bank guard, whose gun discharges, killing her. Is Russ guilty of any level of homicide?

This is intended to demonstrate the clearly contrasting case to Example 1a. The typical kind of horrible hypothetical raised by opponents, it employs the broadest statement of the felony murder doctrine to demonstrate its irrationality. The death has occurred "during" the perpetration of "a" felony. The felony is causally related to the death. If the doctrine were not limited in some way, opponents argue, Russ would be guilty not only of embezzlement but of murder. Thus, "the inherently dangerous" requirement is imposed, and embezzlement is not inherently dangerous. Without this requirement, Russ might be liable for murder even though he was totally non-negligent with regard to any risk that death would occur. Despite the fact that critics have used such "horribles" in attacking the doctrine, they have not pointed to a single appellate reported opinion in which the courts have applied the doctrine to such a situation. Under the MPC, felony murder doctrine, Russ is not liable for the death. Only a few felonies will even serve as a possible predicate for felony murder, and embezzlement is not among them.

Hamlet's hunting license has, unknown to him, expired. Using all care, he shoots at a deer but nevertheless kills Polonius, whom he does not know is there. Hunting without a license is a misdemeanor. Manslaughter?

This is not an easy case. Under a rigid application of the misdemeanor-manslaughter rule, Hamlet should be guilty. But unlike Example 4, the failure to have a license has little or no causal relation to the injury; Hamlet has been careful in his hunting. Thus, even under the common law, he should not be found culpable.

Melinda goes to the bank and receives change for her $10 bill. In the middle of the $1 bills, however, there is a $1,000 dollar bill. Melinda keeps the $1,000 bill.

This is not false pretenses because the bank did not intend for title to the $1,000 bill to pass. Nor is it trespassory since Melinda did not know at the time she received the package of bills that there was a $1,000 bill inside. It might be "embezzlement" under current statutes but not under the common law since the common law usually required an "entrusting" of the property, and there was no reliance by the bank on Melinda here. Some common law courts might find that the $1,000 was still in the "constructive possession" of the bank, although this fiction was usually restricted to employer-employee situations. Under the MPC, Melinda exercised unlawful control once she realized that she had the $1,000 bill and did not return it to the bank. This is theft by unlawful taking.

Larry asks his neighbor Joan if he can borrow her lawn mower, intending at the time to sell it. He does so

This is not false pretenses since Joan never expected title to pass, nor embezzlement because Larry's intent effectively makes his initial taking trespassory, much as in Pear's Case. Thus, this is larceny by trick and not embezzlement. Under the MPC, however, the common law distinctions are unimportant. Whether title passed (or was intended to) is irrelevant. Larry's taking is "by deception," and his control is therefore "theft" under the Code.

Alexander strolls into Pop's bookstore one day. Picking up the classic Agatha Christie (Murder on the Orient Express), he browses through it. Finding it intriguing enough, he decides to steal it. As he makes his way toward the door, however, he spots Jeremy, who works for the store, looking at him. Fearful that Jeremy has seen him take the book, Alexander replaces it on the shelf, exactly where it was at the start.

This is not false pretenses since title never passed. Nor can Alexander be guilty of embezzlement. Even if one were to argue that he had lawful possession when he decided to keep the book, that decision is not sufficient: There must a significant interference with ownership (conversion), which is absent here. Has Alexander committed larceny? He has taken and asported the book, although not off the premises of the store. That would suffice for that part of the crime. But did he have the requisite intent when the taking occurred? If not, he is not guilty of larceny. But could he be convicted of attempted larceny? See Chapter 12. Under the Code, Alexander exercised illegal control over the book as soon as he formed an intent to deprive the bookstore of it, even if it never left the premises. No express requirement of asportation or "taking" is present in the Code, although it is usually difficult to exercise "control" over property unless some physical movement occurs with regard to it.

Jessie, tired and impoverished, but driving a Maserati, pulls into the Hampton Inn, where she signs in. She is not required to give a credit card deposit. The next morning, she leaves the Hampton Inn without paying as she had intended to do all along.

This is obviously not false pretense. There is nothing to which title has passed. Neither is it embezzlement or larceny, since intangible property can't be the basis of these crimes under common law. This has changed in modern statutes and in the MPC, which has a specific provision (§223.7) dealing with "theft of services."

For 20 years, Mortimer has abused his wife, Sheila, with some regularity. He has broken her arm twice, thrown her down stairs numerous times, and frequently threatened to kill her. She has left him several times, but each time he has persuaded her to return, pleading that he loves her. The typical cycle of atonement, slow buildup, and then battering has occurred continuously over the years. Tonight Mort said to Sheila, "Tomorrow's the day. I'm not taking any more. You are dead." Then he left the house. Sheila went to her next-door neighbor, Laurie, and told her, "I think he really means it this time. Give me your gun." Laurie hesitated, but finally acquiesced. When Mort returned that night, Sheila shot him five times as he came through the doorway. Sheila and Laurie are charged with murder. What result?

This is really complicated. The first question is whether Sheila will have a self-defense claim. This may depend on whether the jurisdiction allows an expert to testify about battered spouse syndrome, but virtually all do today, so Sheila will be judged by the "reasonable battered spouse." On the other hand, Mort was not threatening her at the very moment she shot him. This nonconfrontational case raises all the issues generated by a long-time, simmering, and explosive relationship, and is not well handled by black letter self-defense law. Sheila will at least get her case to the jury. Under the Model Penal Code, Sheila has a stronger claim. The common law required "imminency" for a claim of self-defense. The Code, instead, substitutes the phrase "immediately necessary on the present occasion." The Code is not concerned with the timing of the possible attack, but with the necessity to use force. As in the hypothetical, the question of imminence is most vividly raised by the "sleeping husband" cases, e.g., State v. Norman, 378 S.E.2d 8 (N.C. 1989). Laurie's case is even more difficult, and her defense may depend on how Sheila's acts are characterized. If the jury finds that Sheila was justified, then Laurie's assistance will also be allowed. If, however, the jury concludes that Sheila was merely excused under current doctrine, a nonexcused or justified person cannot aid a person who is merely excused — because she does not share the actor's "disability." On the other hand, Laurie will raise a second claim — that she gave Sheila the gun only to be used if Mort actually attacked her, not when Mort walked in the door. Was Laurie unreasonable — or even reckless — in her belief that Sheila would not use the gun in a nonconfrontational situation? Under current accomplice law, discussed in Chapter 14, Laurie will not be an accomplice to Mort's death unless she "intended" that death or, in some jurisdictions, unless she was reckless (not merely negligent) as to whether her assistance would result in a crime. This is obviously a jury question — and a close one that might depend on more facts than a mere hypothetical can offer.

Ashley walks into Mom-and-Pop's grocery with a gun and says "Give me your money." Pop refuses, and she shoots him six times at pointblank range. She is charged with murder. Is it?

This is the most obvious use of the felony murder doctrine. Ashley is clearly involved in an inherently dangerous felony, the killing is "in furtherance" of the felony, and it occurs during its perpetration. It is also causally linked to the felony. In most jurisdictions this will be a first-degree murder because it is a felony listed in the first-degree murder provision. But we don't need the felony murder doctrine here. Ashley has killed with premeditation (common law) and purposely (MPC).

Chris parks his car, puts sufficient money in the meter for one hour, and walks into a meeting. Later, noting that his watch indicates that he has eight minutes left, he leaves the meeting and returns to put more money in the meter, only to find Rita, a meter reader, writing him a parking ticket for overtime parking. The meter reflects a violation. Unknown to him, Chris' watch stopped three times for a period of four minutes each during the hour, although on each occasion the watch began running again. The offense is punishable by a fine of $50. Is Chris guilty of a parking violation?

This is the prototypical strict liability offense. Whether Chris knew that he was overparked or not, he will be found liable. The penalty is low, and it is at least plausible that there are too many such offenses to allow or require a prosecutor to prove and a court to inquire about the defendant's actual state of mind. It is also unlikely that there is any moral stigma to such an offense. (But in a world where people kill for parking spaces, who knows?) The Model Penal Code would agree, since there is no imprisonment possible.

Paul was raised by a very religious family. At the age of eight, he attended church four nights a week. By 18, he was in seminary, and by 22, he was an ordained minister. His family always inveighed against abortion. For the first few years of his ministry, Paul preached against abortion on many occasions, but took no further action. As he grew older, however, he first joined, and then led, local and national antiabortion groups. He participated in numerous sit-ins outside abortion clinics and was frequently arrested. After an abortion provider was killed in another state, Paul's fury intensified. He resigned the ministry and devoted himself full-time to anti-abortion activities. Finally, he decided that he could no longer stand on the sidelines. To him, abortion providers were committing murder. He purchased a gun and practiced with it every day. After two weeks, he determined to kill the local doctor who performed abortions. Knowing that this was done on Fridays, Paul positioned himself outside the clinic at 6 a.m. and waited. As he sat there, he was nagged by doubts about his course of action, but he convinced himself that it was necessary to save the lives of the unborn. He, himself, says: "I thought maybe I would feel, y'know, a lot of resolution and that kind of thing, but my stomach felt like literally a bottomless pit." When the doctor arrived, Paul shot him four times as he stepped from his car. Paul is charged with first-degree murder. What result?

This is the true story of Paul Hill, who in 1994 shot and killed Dr. Bayard Barrett in Pensacola, Florida. See N.Y. Times, Sept. 24, 1995, sec. 4. Assuming that Paul has no claim of necessity (see Chapter 16), or insanity, or diminished capacity (see Chapter 17), he appears to be liable for first-degree murder. He premeditated the crime by purchasing the weapon in advance, practicing with it, and lying in wait for the victim. Under the common law, Paul has no other claims. However, under the Model Penal Code, he may argue that he is guilty only of manslaughter because his killing was committed under "extreme emotional or mental disturbance." The Code, unlike the common law, does not require provocation, much less adequate provocation. Its focus is on the mental state — or lack of it — of one who kills. Arguably, a person in Paul Hill's "situation," as the Code puts it, might gather that his conclusion was reasonable, even though he clearly knew that what he was doing was illegal. In fact, Florida has not adopted the MPC, and Paul Hill was found guilty of first-degree murder.

Metropolis, population 150, is threatened with annihilation by a flooding stream. Shakir tries justifiably to divert the flood onto Nelson's farm, knowing that Nelson will be drowned as a result. Nelson runs out of his farmhouse and shoots Shakir before he can divert the stream. Is Nelson guilty of any crime?

This is tricky. Nelson may claim self-defense, but self-defense is, as a general matter, defined as a justified use of force against "unlawful" force. Shakir, as explained in the text, is justified in diverting the stream, and is thus not using unlawful force. Nelson therefore cannot be justified. Can he be excused? Usually, it is said that self-defense "sounds in" justification; can it also, on occasions like this, sound in excuse? There are at least two arguments for saying yes. First, in the case of an unreasonably mistaken self-defender, some jurisdictions allow a reduction to manslaughter, thus clearly recognizing that the slayer's acts, though not justified, could still be partially excused. Second, to the extent that we are interested in results, and only secondarily in explaining those results, there is surely no reason for treating Nelson as a murderer, cold-blooded or otherwise. On the other hand, he is not mistaken, unlike the putative self-defender. Could Nelson claim necessity? Not if necessity requires that he achieve a greater good relative to the harm he has inflicted. As it is, Nelson kills one to save one (himself). This demonstrates, again, the difficulty the common law had with analyzing one-on-one situations, where neither party was initially culpable. Of course, it could be argued that Nelson is killing 151. If so, even if Nelson killed Shakir to save Nelson's entire family (15 people), a quantification approach to necessity would deny him a defense.

Jack, an accountant, is ordered by Gertrude, his boss, to fraudulently increase the billings for customers by 30 percent; she tells him he will be fired unless he complies. Unknown to Gertrude, Jack has a daughter who will die unless she obtains a liver transplant in the next week. If Jack is fired, he will not have sufficient funds to pay for the transplant. Jack complies. Has Jack committed fraud?

This problem raises the issue of immediacy since it is possible that the hospital would perform the operation in any event. Even though the question says Jack's daughter "will" die, nothing in the future is certain. Jack's daughter might undergo a spontaneous remission, or another hospital might perform the operation for free. But, as the court suggested in Toscano (page 479), a believable threat of harm "in the future" should still form the basis of a jury question. But leaving that aside, the problem really raises the issue of whether the duressor has to know that her threat endangers life. If Jack did not have a dying daughter, he would be unable to claim duress since the threat of losing one's job has not been recognized by the law in a duress context. However, here he knows that the threat is one to life but Gertrude does not. Does the threat then meet the common law's requirements of "death or serious bodily harm"? All the policy reasons for allowing a claim suggest that it should be so considered. But the common law was often very restrictive and hewed closely to doctrine. On the other hand, Jack may be able to claim necessity in any event. Any reasonable person would have chosen to have committed fraud rather than see his daughter die. At the very least, whether he chose the "lesser evil" would constitute a jury question.

Lionel lends his car to Hampton. Six weeks later, Lionel receives in the mail a ticket with a $500 fine for parking near a fire hydrant on the day Hampton borrowed the car. The statute, after defining "illegal parking," provides that "the owner of an illegally parked car is responsible for the fine, unless he can prove that he was not driving it that day, and otherwise did not exercise control over it." May the state make Lionel prove such "noncontrol"?

This problem raises yet another possible argument about affirmative defenses — that the state may require a defendant to prove a "defense" in cases where it need not provide the defense at all. The alleged reason is that the "greater includes the lesser." Since the state could abolish the defense of "noncontrol," it can place the burden of its proof upon the defendant. This, of course, assumes that the state can constitutionally prohibit such parking without requiring any showing of actus reus or mens rea. Since this is a "malum prohibitum" offense (see Chapter 6), the state probably could enact such a statute. Thus, it probably can put the burden on the defendant to show noncontrol.

John and Henry conspire to embezzle money from the corporation for which they work by taking monies that should be used to pay for proper disposal of hazardous wastes, instead dumping the wastes into a river. Allyson is killed by the wastes. Assuming that the dumping is not a felony, are John and Henry murderers?

This question raises, again, defining "the" felony involved. Is the "predicate felony" (a) embezzlement? (b) conspiracy to embezzle? (c) dumping wastes? The first two are almost surely not "inherently dangerous." But the last one might be, depending on the precise wording of the statute. (For example, if the statutory violation is "dumping hazardous wastes without a permit," it would not be inherently dangerous, for one could safely dump, but still not have a permit. If the statute prohibited "dangerous dumping of hazardous wastes" or "dumping of hazardous materials into aquifers or other sources of drinking water," however, it might be a predicate felony.) Since none of these felonies is specifically articulated in §210.2 of the MPC, the prosecutor will not be able to rely on the felony murder doctrine at all in an MPC jurisdiction.

Trent Hatfield and Jack McCoy have been bitter enemies for years. One day, as Jack is walking with his three-year-old son, Real, Trent grabs the child, puts a gun to his head and says: "You think you've suffered? Watch this." He then kills Real. Jack whips out his Colt .45 (legally carried) and shoots at Hatfield, but the bullets go far wide of their mark and kill Saw Waterston, Jack's dearest friend, who just happens to come around the corner at that moment. Charged with Waterston's murder, Jack pleads heat of passion. What result?

This should depend on how and why we think a heat of passion/provoked killing should be mitigated. If the basis is that the victim (partially) "asked for it," then this is certainly not true of Sam, who was totally innocent. If the basis is that the result was (partially) justified, then this is also not the case. We do not have even a partially good result here; a totally innocent person has been killed. But if the question is whether Jack's act was partially excused, then the result becomes irrelevant, and Jack should be able to reduce his conviction to manslaughter because of his extreme "disability." It is also possible to argue that Jack should be able to claim "transferred justification (or excuse)." After all, if intent can follow the bullet, then why can't passion?

Dave sees an SUV sitting outside a convenience store, with the motor running. He jumps in and throws the car into reverse. At that moment, a woman runs out screaming: "You can have the car, just let me have my son." Dave then notices, for the first time, that there is a five-year-old in a car seat in the back. The woman tries to take the child, but the child becomes entangled in the seat belt. Dave hits the gas, and the car speeds forward, the child hanging halfway out of the car, and the woman running alongside yelling. When the car finally stops, and Dave runs out, the child is dead. Has Dave committed murder?

This tragic scene actually occurred in Missouri several years ago. First — is Dave guilty of "straight" murder? He certainly did not "premeditate" the death of the child, and therefore would probably not be guilty of first-degree murder in most states. Moreover, he probably did not have "universal malice," or a "depraved mind" (under the common law) or "recklessness under circumstances manifesting extreme indifference" (under the MPC) unless he recognized a real risk to the child. This could be argued either way, but it is at least possible that the entire situation was so confusing at that point that Dave's actions would fall short of this standard. Can he then be guilty of felony murder? What felony has Dave committed? Perhaps kidnapping, but many states require that the taking be for ransom, which is not the case here. Perhaps robbery: It could be the taking of property by force or threat of force. That is surely an "inherently dangerous" felony and many states statutorily list it as a predicate for first degree murder. Carjacking is an even more likely predicate. Legislatures enacted carjacking statutes when the penalty for robbery was seen as too lenient. So it may be an "inherently dangerous" felony. However, many of these same legislatures, while creating this new felony, did not list it as a predicate for first degree murder. So if the prosecutor uses that statute, it may only be second-degree murder. Let's consider that — a felony which has a harsher sentence than robbery can't be the basis of a first degree murder charge while robbery, with a "lighter" sentence, could be. Is this any way to run a criminal code?

Jean Val Jean steals two loaves of bread to feed his starving family. Necessity?

This, of course, is Les Miserables. In the Dudley opinion, Lord Coleridge addressed this precise question, saying that theft of food would not be justified because England provided relief for the poor. But what if the government could not provide relief? During Hurricane Katrina, many people stole food because government relief was unable to provide all of the needed food. Was this justified? In similar situations, some have argued that the defendants are in a "state of nature" and no longer governed by the laws of man.35 Six states actually have anti-looting statutes, and it is unclear whether the actions of defendants even in Katrina would be protected. Ironically, Louisiana had enacted an anti-looting statute "during the existence of a state of emergency," which became effective exactly two weeks before Katrina hit. One woman was arrested for stealing sausage because she lived across from the police station; the view was that she could have asked the police for food. (The charges were ultimately dropped.) On the other hand, three defendants who took liquor, beer, and a case of wine coolers were sentenced to fifteen years in prison.

Paul is at a party. Melissa offers him a Cuban cigar, which was illegally imported into this country. Unknown to Paul, it contains marijuana. After smoking the cigar, Paul becomes giddy and hyperactive. He goes to the adjacent house and opens the door without knocking. He then goes inside and invites "everyone to come join the party." The neighbors, an elderly couple, are not amused. They have Paul arrested and charged with criminal trespass.

Though Paul probably knew that the cigar was illegally imported, he had no idea it contained a prohibited substance or drug that could cause intoxication. If this were a case of voluntary intoxication, under the common law, Paul could use this evidence if he was charged with a specific intent crime. Criminal trespass, however, is probably not a specific intent offense. Thus, he probably cannot use this evidence to negate the element of "knowingly" entering another's house without permission. The MPC would allow Paul to use evidence of self-induced intoxication to negate any element of a charged offense. Paul would argue that this evidence negates that he "knowingly" (a) entered another person's house (b) without permission. Unfortunately, this is more likely a case of involuntary intoxication. Paul had no idea he was consuming a substance that would, or was likely, to cause intoxication. To succeed under common law, he would have to prove that the marijuana made him unable to know what he was doing or that it was wrong. Paul probably did know that he was going into someone else's house and that he did not have permission. Thus, he would probably be convicted. Only if he was "really out of it" would he be acquitted. This is unjust. Ironically, Paul is probably in a better position under voluntary intoxication than he is under involuntary intoxication.

Ten years ago, Rusty, a graduate assistant at a major college football powerhouse, saw a senior assistant coach raping a 10-year-old boy in the locker room showers. Appalled, he immediately intervened and stopped the abuse. The next day Rusty told the head coach, a legendary figure at the university and Rusty's boss, what he saw the assistant coach doing and what Rusty did to stop it. To his dismay, the assistant coach continued to serve on staff for several more years. Even after retiring as a coach, he continued to have access to the university's athletic facilities where he continued to bring young boys. Recently, the senior coach was charged with sexually abusing many young boys. Some of these crimes occurred in the school's athletic facilities after Rusty had reported what he saw to his boss. State law only required Rusty to report suspected sexual abuse to a university superior; he was not required to inform the police. Can he be convicted of a crime?

Though conceding that Rusty complied with the law by reporting the sexual abuse to a superior and that there is no statutory legal duty to report it to the police, the prosecutor would claim that Rusty's failure to inform the police after knowing the assistant coach was still on staff, had access to the school's athletic facilities, and continued to bring young boys there is an omission that allowed a known sex offender to commit numerous crimes that have caused enormous harm to many young and vulnerable victims. Surely, the moral duty to prevent this ongoing victimization is so compelling in this situation that Rusty can be criminally punished for his inaction. Even though Rusty did bring the coach's criminal conduct to the attention of a superior with authority to take appropriate preventive action, he knew that the coach was still in a position to commit more crimes like the one he saw. The criminal law cannot be powerless to prevent such tragic and predictable harm. There must be a duty to act here when the burden on the individual is so minimal — just call the police — and the harm prevented is so damaging. The defense counsel would argue that the criminal law is clear: Without a legal duty to act, the failure to do so does not satisfy the necessary elements of criminal responsibility. Rusty did not affirmatively harm any of the victims. He actually acted to prevent future harm. He did exactly what the law required; he informed a person in the organization with authority over the coach of what he saw. Rusty must be able to rely on the law in determining his legal responsibility. Expanding criminal responsibility in this case would be a trap for the innocent and violate the principle of legality. Where would the "slippery slope" of extending criminal responsibility stop? Who would know the scope of her criminal responsibility? This is why there is no common law of crime in this state. If you think Rusty is criminally responsible for not doing more, what should his punishment be? A modest fine? Conviction of the same crime as the perpetrator? Is this a just result?

At work during his lunch break, William frequently browsed the Internet for child pornography sites. William looked at child pornography on these sites very briefly so that he wouldn't be observed and then closed them. At one site, a small dialog box appeared on the screen. He entered it and then quickly closed it and left the site. Though William did not realize it, this command caused the computer to immediately download child pornography onto his computer's hard drive. An internal company audit uncovered child pornography on William's computer, and he was charged with the federal crime of knowingly possessing materials involving the sexual exploitation of minors. Actus Reus?

To be guilty of possession of child pornography, an offender must knowingly have the prohibited material. William intentionally searched for these websites and viewed child pornography. He also intentionally entered and closed the dialog box. However, he was unaware that this act automatically downloaded the prohibited pornography onto his computer's hard drive, and did not know that it was on his computer's hard drive until he was arrested. Thus, he will argue that he was never cognizant of this crucial fact and, therefore, did not "knowingly possess" the child pornography. The prosecution may argue that simply viewing this material is possessing it; possession does not require downloading or printing it. This argument will probably fail. The prosecutor will then argue that William committed a "voluntary act" by opening the site, viewing child pornography, and entering and closing the dialog box. This satisfies both the actus reus requirement of the common law and the conduct element of the MPC. He may not have known the result of his conduct, but that should be construed as a strict liability element. This is a tough case and could go either way. Because William did not voluntarily engage in conduct that would normally result in downloading material from a website onto a computer hard drive, he has a strong case that he did not engage in the voluntary act necessary for possession.

Finally ending a series of random sniper killings, the police arrested Allen and Boyd and charged them both with capital murder for the "willful, deliberate, and premeditated killing of a person by the use of a firearm." The police seized a .22 caliber Bushmaster rifle and scope from their car. Ballistics matched the gun to the bullets recovered from the first victim, Calvin. Fingerprints from both Allen and Boyd were found on the trigger. The prosecutor is unable to prove which of the two suspects actually pulled the trigger and killed Calvin. Only the shooter can be sentenced to death under the statute. Can the prosecutor obtain a death sentence for Allen and Boyd?

To obtain a death sentence under this statute, the prosecutor must prove that the defendant personally and directly caused Calvin's death. It should be easy to prove that the shooter caused Calvin's death and that either Allen or Boyd was the shooter. Calvin died from gunshot wounds. The bullets taken from his wounds were fired from the rifle found in the possession of Allen and Boyd. Fingerprints from both Allen and Boyd were on the rifle and its trigger. Either Allen or Boyd shot Calvin, and therefore one of them is guilty of capital murder. But can the prosecution prove beyond a reasonable doubt that either Allen or Boyd was the shooter? Though theoretically both could have pulled the trigger at the same time, this is highly unlikely given the need to aim and fire carefully. Since Allen's fingerprints are on the trigger, there is reasonable doubt that Boyd shot Calvin. Likewise, since Boyd's fingerprints are also on the trigger, there is reasonable doubt that Allen shot him. Without other evidence, like a confession or an eyewitness, establishing who actually fired the shot that killed Calvin, it is unlikely that the prosecutor can prove who killed him. Both Allen and Boyd can be convicted of murder as accomplices or as co-conspirators, but neither will be sentenced to death.

Tom is in love with Mary, but Mary doesn't return his affection. She is, however, in love with Romero. Tom, hoping to scare or injure his rival, puts a nonpoisonous snake in Romero's mailbox. Unknown to Tom, Romero has always been afraid of snakes. He looks into the mailbox and has a coronary. Is Tom guilty of murder?

Tom is clearly a rapscallion. But it is hard to argue that his conduct, however scandalous and outrageous, evinced a "depraved heart" under the common law, or a "conscious disregard of a substantial and unjustifiable risk" that Romero would have a heart attack upon seeing the snake. Without evidence of these mental states, it would be difficult, if not impossible to prove malice aforethought, which is necessary to find Tom guilty of murder under the common law. Moreover, it would be equally difficult to prove negligence or recklessness, let alone the lowest necessary mental state for a murder charge under the MPC: recklessness under circumstances manifesting extreme indifference to the value of human life. Even assuming the prosecutor could find evidence that Tom was aware of Romero's fear of snakes, that would be clear evidence of Tom's intent to scare Romero, not to kill him. Tom's behavior demonstrates a disregard for common decency at most.

Joan is prosecuted for "knowingly killing a homing pigeon." She seeks to introduce evidence that she believed the bird was a golden eagle. She concedes that her mistake was unreasonable. Should the evidence be admitted?

Under common law, unless "knowingly" is interpreted as a specific intent requirement, Joan's evidence is irrelevant, since only reasonable mistakes "negate" "general intent" crimes. If she's free (as a bird?), "knowingly" is interpreted as a specific intent requirement. This is particularly true after Staples and X-Citement Video. Thus, her mistake, even though unreasonable, will exonerate. This result, of course, should be reached even without deeming the statute one requiring "specific intent." It seems clear that Joan, whatever her faults, is not the evil malefactor — purposeful killer of homing pigeons — that the legislature is after. Perhaps she should be required to wear glasses or take bird recognition courses, but sending her to prison is unlikely to achieve any goal, including deterrence. Under the Model Penal Code, Joan must be "aware" that the bird was a pigeon (as required by the word "knowingly"). Since her actual belief contradicts that requirement, the evidence is admissible.

Same facts, but the charge is "killing a homing pigeon." These examples demonstrate the link between common law doctrines of mistake and current definitions of mens rea. In addition, a statute such as the one in 2b would raise questions of strict liability, discussed in Chapter 6. You must keep the interrelationship of Chapters 4-6 in mind whenever confronting a mens rea problem, be it of statutory interpretation or common law liability.

Under the Code, "recklessness" is the default position when the statute contains no mens rea word (see Chapter 4). Since recklessness requires that Joan be aware of a substantial risk that the bird could be a pigeon, the evidence should be admitted. Under the common law, the evidence appears inadmissible, since there is no statutory mens rea. But under the separate doctrine of mistake of fact, Joan's mistake would be relevant if reasonable. Since she concedes it is not reasonable, Joan is heading for the big house.

At a young age, Eugene was diagnosed with schizophrenia. The illness caused him to have delusions that his life was in danger. On multiple occasions, his illness caused him to believe members of his family were trying to kill him, to which he responded violently to protect himself. He was eventually placed on medication, which, combined with weekly counseling, permitted him to lead a relatively normal life for years. However, the medication made him feel less like himself and he always hated it. One day, Eugene decided to stop taking his medication. Soon afterwards, Eugene is at his desk when he is overcome with the belief that his coworker, Allen, is trying to kill him. When Allen approaches Eugene at the cafeteria, Eugene is under the delusion that Allen is finally going to dispose of him. Afraid for his life, Eugene grabs a steak knife and attacks Allen, stabbing him repeatedly in the chest. Several people pull Eugene away, but amidst the chaos, Eugene stumbles backwards, falls, and hit his head on the corner of a table, causing serious injury to his head and brain.

Under the M'Naghten test, Eugene might argue that he did not know that his conduct was wrong. He certainly understood that he was engaging in violent, potentially lethal conduct. In fact, he meant to engage in such conduct, but he did not appreciate the wrongfulness of his conduct because he was under the delusion that his life was in danger. The criminal law has concluded that individuals are justified in defending themselves from harm. Eugene would argue that not only did not he know the wrongness of his conduct — he was convinced that he was doing the right and necessary thing, morally and legally. Thus, he would argue that he is not blameworthy for the killing because he did not know his conduct was wrong. Under the MPC, Eugene would likely qualify for the insanity defense. He would argue that because of his mental illness he lacked "substantial capacity . . . to appreciate the criminality [wrongfulness] of his conduct." This argument may look very similar to Eugene's argument under the M'Naghten test, but because the standard is lower under the MPC, he would likely qualify for the defense. Do not be distracted by the fact that Eugene affirmatively chose not to take his medication. Remember, the insanity defense looks at the defendant's state of mind at the time of the crime. At the time of the crime, Eugene's ability to perceive the wrongness of his actions was reduced. Some prosecutors have attempted to assert that mentally ill defendants who purposely fail to take their medication should bear responsibility for any crime they commit in the meantime. The argument is that because the mentally ill defendant knows of his mental illness and how it can cause him to act criminally, he purposely puts himself in a position to commit crimes if he fails to take his medication, and, thus, he should be held accountable for his criminal conduct. While few courts have addressed this argument, it has largely been held to be unpersuasive.59 After all, not taking medication is not illegal and the defendant is not responsible for his mental illness. Lastly, there may be a question of whether Eugene can stand trial. During the scuffle, as people attempted to intervene and stop him from stabbing Allen, Eugene suffered brain damage. Depending on the seriousness of the damage, Eugene may not be able to stand trial because he cannot understand what is happening in the trial and the significance of a guilty verdict.

Charlie enters a hotel room to steal valuables left behind by the guests. Unfortunately, Edna is still in the room and sees Charlie. Charlie hits her over the head with a heavy object, intending to kill her because she could potentially identify him to police. Charlie leaves Edna lying in a pool of blood. A maid discovers Edna, who is then rushed to the hospital. Edna, still unconscious, is diagnosed as having suffered serious brain damage. Did Charlie cause Edna's death in the following examples?

Under the common law, Charlie's conduct satisfies both cause in fact and proximate cause. Hitting Edna with a heavy object satisfies cause in fact; but for this conduct, Edna would be alive. It was also foreseeable that Edna's death was a natural and probable result of Charlie's conduct. True, Edna died as a direct result of Dr. Able's skillful and high-risk surgery. However, only such surgery might interrupt the fatal causal forces that Charlie had previously set in motion. Thus, such invasive medical treatment was a likely and natural result of the chain of events put in motion by Charlie. The surgery will therefore be considered a dependent intervening cause, and Charlie will be held responsible for proximately causing Edna's death. The MPC would also find Charlie responsible. The actual result, Edna's death, is the same as that intended or contemplated. Although the operation was the immediate and direct cause of Edna's death, it is highly likely that medical professionals will undertake high-risk surgery to avoid the harm Charlie's actions will otherwise cause. Thus, the surgery is not too remote or accidental to have a just bearing on Charlie's guilt.

One fine October day, Napoleon, an avid hunter, goes hunting for deer. An animal scurries across the path, and Nappy, in a flash, shoots. He discovers that he has killed a rabbit, which is prohibited in this jurisdiction. Just at that moment, Odie, the friendly game warden, appears and arrests him. Nappy is prosecuted for knowingly killing the rabbit. Mens Rea?

Under the common law, Napolean would likely be found to have had the requisite mes rea, but he'll clearly be exculpated under the Model Penal Code. Many common law courts concluded that the mens rea word modified only the verb. Napoleon has clearly "knowingly" killed something — indeed, he wanted to kill what he shot at. Thus, under this common law approach, he has "knowingly" killed the rabbit. Don't despair, however — under that same common law, most courts developed a separate doctrine of mistake, which we will examine in Chapter 5. Suffice it here to say that if Nappy's mistake was "reasonable," he may ultimately be exculpated. Under the MPC, the answer is easy — Napoleon has a good chance of being acquitted. "Rabbit" is clearly an attendant circumstance material element. Thus, under a statute requiring "knowingly," the Code allows conviction only if the defendant was aware that the attendant circumstance existed. Since Nappy was not aware that the animal was a rabbit, he is not guilty. Reasonableness is not — at this point — a relevant consideration.

On a Friday afternoon, Ruth Clark, a suicide bomber, kills herself and 10 other people in a downtown mall. On Monday, the police arrest Donald Poker, the person who persuaded Clark to commit the act. On Tuesday, as Poker is being arraigned, Richard Regnis, whose wife and three children were killed in the explosion and who is still clearly distraught, jumps out of a courtroom seat and shoots Poker five times, shouting at him, "You killed my family, you creator of mass destruction!" What will be the likely result if Regnis' attorney seeks to obtain a manslaughter instruction?

Under the common law, Regnis will fail, for several reasons. First, although he may well have been provoked by Poker's homicidal acts, those acts were aimed not at him, but at others. Second, many courts would require that Regnis actually have seen the deaths of his family. Third, Regnis only acted 72 hours after his family's deaths, and 24 hours after Poker's arrest. Under the original common law, this would almost surely be held, as a matter of law, to be sufficient time to "cool off." Finally, Regnis sought out Poker, so the meeting is hardly "chance." Regnis premeditated the encounter and the killing; had Regnis simply been in the courthouse and inadvertently bumped into Poker, it might have been a situation of "rekindling" the cooled-off man. But this is not the case here. Under the MPC, the results are likely to be different. The Code does not require a provocation, nor does it preclude "brooders" from obtaining a possible manslaughter instruction. The question, rather, is whether a reasonable jury could find that Regnis was acting under "extreme mental or emotional disturbance." Surely a jury could so find, even though three days have passed since the bombing. Indeed, under the Code's formulation, which is much more subjective than the common law's, Regnis might obtain such an instruction three years after the event.

Jonathan, the head of a dedicated right-to-life organization known for using violence, tells Bruce, the secretary of an abortion provider, that unless Bruce gives Jonathan the key to the office so that Jonathan can destroy the equipment in the office, he will kill Bruce "when he least expects it, sometime in the next month, or the next year, or whenever." Bruce complies.

Under the common law, the threat must be one of "imminent" violence if the defendant is to be able to use the plea. A vague threat such as the one here has divided the courts over whether there is such a plea. In State v. Toscano, 74 N.J. 421 (1977), a case of threats of unspecified future injury, the Court adopted the rationale of the Model Penal Code that duress was a question of fact for the jury rather than a question of law for the judge.

Liam buys a Coke at the nearby convenience store. He sees a donation box marked "For the orphans of Sudan." He sees several coins and a $5.00 bill in the box, so he grabs the box and runs. When he shakes the box open, he counts the loot. "Seven dollars! All that effort for seven bucks!" Unhappily for Liam, Chris Columb, the local police officer, hears him and arrests him for larceny, which would normally carry a six-month sentence. Even more unhappily for Liam, it turns out that one of the coins was not merely a nickel, but a "buffalo nickel" worth $50,000. He is charged with grand larceny (anything over $500) and is sentenced to the maximum 10 years. Has Liam been nickled and dimed?

Under the common law, you bet your dollar. This would be the epitome of the "greater crime." A thief never (or rarely) knows the value of what he steals — it could be paste, or it could actually be the Hope Diamond. Liam's going to be flipping coins for a very long time. The issue here is the MPC. It would convict Liam of the crime of which he would be guilty "had the situation been as he supposed." Now Liam can probably make a fairly good case here that he "supposed" the facts to constitute petit, rather than grand, larceny. But if a thief never really knows how much is in the box, wallet, or whatever he takes, what crime does he "suppose" he's committing?

Reginald is a pizza delivery guy. While out on delivery one night, he knocks on a door and is confronted by two armed men, who immediately insist he comes inside. Afraid for his life, Reginald complies. It turns out the two men are criminals and they want to use Reginald to drop off some drugs for them. They hand him a brick of cocaine and tell him to walk to the 7-Eleven down the block and wait there for a man in a red jacket. They tell him if he fails to do comply with their instructions they will "carve him up with a butcher knife." Reginald is terrified. He takes the brick of cocaine and goes to the 7-Eleven. A man in a red jacket approaches him and asks if he "has it." Without a word, Reginald hands the cocaine over and then runs. Moments later he is stopped and arrested by a police officer that had watched the whole exchange. Reginald is booked and charged with distributing drugs. Does he have a defense?

Under the elements of duress, Reginald would not likely have a defense. Initially, there was certainly a real and immediate threat of bodily harm or death. The two men were armed with firearms and apparently were capable of disposing of Reginald. Even under the more stringent, objective test that requires that a "reasonably firm-willed" person would have complied, Reginald would have a good argument; however, Reginald's defense may fail because he could have escaped. He could argue he was still under duress when he left the house because the two men had told him they would be watching him, but Reginald had not seen anyone. The prosecution could argue that a person of a "reasonably firm-will" would have chosen to go to the police as soon as he or she got to a public space and called the police instead of carrying out the drug deal.

Sylvester manufactures widgets. As a side effect of the manufacturing process, he creates "crud," a messy looking but otherwise apparently innocuous substance. For years, Sylvester has simply put the "crud" in a barrel with other trash and had it carted off to the local dump. Unknown to Sylvester, the Environmental Protection Agency, after years of internal debate, has just issued a regulation that lists "crud" as a substance that must be disposed of according to specific procedures. Weeks after publication of this new rule, Sylvester puts some of the "crud" into his garbage can and is prosecuted for "willfully disposing in an improper manner of a substance designated by the EPA. . . ." Does Sylvester have a defense?

Under the traditional common law, Sylvester would be convicted. His ignorance of the regulation would be no defense. Under the common law, some courts interpreted the term "willfully" to require "specific intent" (which means that Sylvester would have a claim), while other courts would simply require that he act "voluntarily" (as a matter of will) (in which case he would not have a claim). After Cheek and Ratzlaf, however, the result is even more clear. Given that this statute establishes "willfulness" as the mens rea, the court would interpret that word as essentially requiring a "specific intent." This would require that the government prove that Sylvester knew that he had a duty to dispose of crud in a particular way. Since those decisions are not based on the Constitution, however, they do not necessarily affect the interpretation of state statutes. Thus, the usual ignorantia lex rule might apply, and Sylvester would be convicted. The Model Penal Code would reach the same result as the states. Under §2.02(9), ignorance of the law is irrelevant, where the statute establishes knowledge, recklessness, or negligence as the mens rea. The implication, not expressed in the Code, is that ignorance might be relevant if the statutory mens rea were purpose. Because that is not the case here, Sylvester's ignorance, however reasonable, is irrelevant.

Bernice agrees to appear on a television talk show, believing that the purpose is to discuss her gardening prowess. As the show is being taped for future broadcast, the host suddenly announces, "Fooled you, Bernice. This show is not about gardening. In fact, this is about secret lovers. And here, now, is your secret lover, Barnaby." Barnaby comes out and describes, in graphic detail, his seven-year passion for Bernice. He grabs Bernice's hand and begs her to marry him immediately. Bernice has always detested Barnaby. She is deeply in love with another man, and she is extremely humiliated. She grabs a lamp on the set and hits Barnaby, killing him. With what level of homicide should she be charged?

Under traditional common law, Bernice cannot plead heat of passion. Barnaby's profession of love would be "words only" and would therefore not suffice. And although the words are "informational," they do not inform her of an act that, had she seen it, would qualify as provocation. Even under modern common law, the words are insufficient. Barnaby's touching her hand is a bit more problematic. Although early common law referred to an "assault" as sufficient provocation, and although assault is usually defined as a nonconsensual touching, the assaults that were contemplated were "insulting" touching, which "aggravated" a man's (?!) honor. The question is whether to view the touching from Barnaby's viewpoint, which would mean that the touching was not intended as an insult, or from Bernice's, which might qualify it as an insulting touching. The better judgment, however, is that the touching alone would not meet the common law requirements. The result might be different under the Model Penal Code. The Code does not preclude words, informational or not, as the possible basis of a manslaughter mitigation. If Bernice was truly distraught, she might meet the "extreme emotional or mental disturbance" part of the Code's test. The crucial issue would be whether her reaction is "reasonable" for someone in her "position." From a purely subjective viewpoint, Bernice has lost control. Both common law courts and the MPC have moved toward increasing subjectivism to recognize that persons who have actually lost control are less blameworthy (and possibly less deterrable) than those who have killed with a "depraved heart."

Brooke is a loving single mother of three boys. One day while she is working from home, she allows the children to play at their neighborhood park. A half hour later, two of her children run through the door frantically, informing Brooke that a man had kidnapped the third child. She then receives a phone call from an unknown number. The voice on the other end instructs: "I have your child. If you ever want to see him again, you will get me $300,000 dollars within the hour" and promptly hangs up. Brooke knows she does not have nearly that amount of money. In her desperate state, she decides her only option is to rob a local bank. She retrieves her gun, drives to the nearest bank, and successfully acquires the money — only to be apprehended by police when she runs out. When her child is safely recovered, she cries, "I thought I had no other choice." Is this a voluntary actus reus?

Unfortunately for Brooke, her actions in robbing the bank constitute a voluntary action in the criminal law. Recall that the law finds a voluntary action even when threatened with death or serious injury or to avoid greater harm. While one may certainly be sympathetic with Brooke because of the predicament she faced, these particular circumstances do not influence whether or not her actions were voluntary. Note, however, that finding an action to be voluntary is not equivalent to finding the perpetrator culpable. Brooke's attorney will certainly explore various options of defenses, such as those based on justification or excuse (see Chapters 15-17), which may ultimately relieve her of culpability. A possibility, here, might be an argument for duress.

Jack is a cook at Burger Prince; Jill is the cashier. A customer purchases from Jill a burger that was cooked by Jack and becomes ill. It is determined that the meat that Jack used contained bacteria that were not destroyed by the cooking process, although a properly working stove would have killed them. Neither Jack nor Jill is responsible, as a matter of employee functions, for cleaning the stove. Jack and Jill are prosecuted under a statute that prohibits the "manufacture or selling of dangerous food." The penalty is up to 2 years in jail. What result?

Unless the court reads a mens rea requirement into the statute (see Chapter 4) or they are in an MPC state, Jack and Jill should pack for Statesville now. Food and other health offenses are frequently deemed "public welfare offenses," allowing strict liability even if imprisonment is possible because the public generally is endangered and cannot protect itself. However, the owner of the restaurant, not the employees, may be responsible for this strict liability crime. If the two were charged with "reckless" sale of dangerous food, they might have a good claim because they did not know there was a risk of contamination. They will stay home in an MPC state, which precludes imprisonment without mens rea.

Jules and Jacques have lived in neighboring apartments for nearly 40 years. They were close friends until ten years ago, when they got into an argument about cable television lines. Since then, they have yelled at each other and verbally threatened each other with death. Indeed, one time, Jacques stabbed Jules with a small knife, inflicting a minor wound. One night, they are yelling at each other through their common wall when Jules pulls out an iron pipe and smashes the wall, making an indentation that Jacques can see. Jacques runs out of his apartment, and Jules opens his apartment door, standing in his doorway. Jacques comes nose to nose with Jules, declares "I'm going to kill you," and reaches into his pocket. Jules, still standing in his doorway, hits Jacques with the pipe, killing him. Self-defense?

We couldn't make this up. These are the actual facts of People v. Aiken, 4 N.Y.3d 324 (2005). The New York Court of Appeals, declaring that the "castle doctrine" should be severely restricted because it allowed people to (otherwise unnecessarily) take life where they could retreat, upheld the trial court's refusal to grant a self-defense instruction. Even if Jules "reasonably feared" that Jacques was reaching for a knife and would stab him, said the court, he had a duty to retreat to his apartment — and the doorway was nothis apartment. Therefore, as a matter of law, he was not entitled to a self-defense instruction.

Same facts as above, except Bertrand's rage is caused by his drunkenness and not a minimal brain dysfunction. What about evidence he was drunk?

Whether Bertrand might be convicted of assault rather than attempted murder depends on whether this jurisdiction permits voluntary intoxication to support a diminished capacity defense. Many states permit the defendant to present evidence of voluntary intoxication to negate intent or knowledge. (Usually, evidence of voluntary intoxication is not permitted to negate recklessness because voluntarily becoming intoxicated is itself considered a reckless act.) In such a jurisdiction Bertrand might be convicted of assault rather than attempted murder if a jury decided that, because he was drunk, Bertrand did not intend to kill Lisu. Other jurisdictions hold voluntarily intoxicated individuals to the same standard of criminal responsibility as sober actors and do not permit a defendant to introduce evidence that he was drunk at the time of the crime. These jurisdictions assume everyone knows that excessive use of alcohol impairs perception, judgment, and volitional faculties. Bertrand must also be aware that alcohol will affect his mental faculties. The criminal law attributes moral responsibility to the defendant because he voluntarily drank and became intoxicated. As one court noted: "The moral blameworthiness lies in the voluntary impairment of one's mental faculties with knowledge that the resulting condition is a source of potential danger to others."104 Therefore, some jurisdictions do not permit defendants under a diminished capacity defense to introduce evidence of voluntary intoxication to negate mens rea.

Diana, an actress, picks up a gun and, just as the script requires, carefully and deliberately loads it with bullets from a box plainly marked "bullets." She then walks over to Charles, who is studying pictures of his newest polo ponies, and, holding the gun to Charles' temple, pulls the trigger, shouting, "And that's for Camilla, you bastard!" Charles drops to the floor, blood spurting from the wound. Diana immediately screams, "Someone get a doctor!" When she is charged with "purposely" killing Charles, she claims she did not know the gun was loaded. What result?

Whether or not Diana will be convicted will come down to how successful the prosecution is in proving the requisite mens rea. If the prosecutor cannot show, beyond a reasonable doubt, that Diana knew the gun and bullets were real, she will likely be acquitted. Our first inclination, of course, is to believe Diana — after all, as she claims, she was just following the script. Her claim that she did not know the bullets were real seems perfectly acceptable. The prosecution's best strategy will be to find additional facts from which a jury may make an inference that Diana did in fact act intentionally. Suppose, for example, that we were to discover that, in addition to being thespians, Diana and Charles were longstanding competitors in art collecting, and that only moments before the play began, Diana had discovered that Charles had destroyed all of her Picassos. Or that Diana and Charles were brother and sister, and that Diana had just learned that their ailing mother had left everything to Charles, but if Charles died first, then the entire $100 million estate would go to Diana. From these facts about motive we might begin to reevaluate our first inference (and our willingness to believe Diana) and draw others.

In a series of cases, the federal courts have interpreted the Migratory Bird Treaty Act, 16 U.S.C. §703 as imposing "strict criminal liability" for the death of any migratory bird. On January 15, 2009, U.S. Airways flight 1549 crash-landed in the Hudson River when several birds, including several migratory birds, flew into the jet engines. While all passengers were saved, the birds died. Is Captain Sully Sullenberger, the pilot of Flight 1549, criminally liable for the birds' deaths?

Yes. Although the Justice Department had the good judgment not to attempt a prosecution of Captain Sully, the precedents are clear — so long as the penalty is merely that of a misdemeanor (a maximum sentence of one year in prison), the provision may be applied without requiring a mens rea. See Larry Martin Corcoran, Migratory Bird Treaty Act: Strict Criminal Liability for Non-Hunting, Human-Caused Bird Deaths, 77 Denv. U. L. Rev. 315 (1999). Under the MPC, of course, the answer is simple — if there is even one day of confinement possible, the statute must be construed as requiring at least negligence, and it is hard to argue that if birds fly into your plane, you are the negligent party. Captain Sullenberger might argue that he did not "act" in this regard — that birds flew into his plane, rather than his plane killing them. But the possibility of criminal liability is striking. See Marc R. Greenberg, Captain "Sully" Sullenberger, Charles Dickens, and the Migratory Bird Treaty Act, 25 SPG Crim. Just. 12 (2010).

Five years ago, Boris was convicted of larceny, a felony punishable by 2 years in state prison. He was put on and successfully completed probation. Today, Boris and his friend Fyodor went hunting with shotguns, where they were accosted by a federal agent, who arrested Boris and charged him with a violation of 18 U.S.C. §922(G)(1), which prohibits anyone who has been convicted of a felony from possessing a firearm. Boris was unaware of the statute, and also believed that his successful completion of probation meant that any collateral consequences were abolished. What is the likelihood that he will be successful?

Zero. The Circuit courts are unanimous that Boris need not know of the federal statute, nor of the effects of his felony conviction. Boris's failure to know of the statute constitutes ignorance of law, which, as we know, is never (well, almost never) a relevant claim. His failure to understand the impact of his conviction is, at best, a mistake of law, which is also never a claim. See, e.g., United States v. Leahy, 473 F.3d 401, 408 (1st Cir. 2007). Jeffrey A. Meyer, Authentically Innocent: Juries and Federal Regulatory Crimes, 59 Hastings L.J. 137, 170 (2007) (collecting cases); Brian E. Sobczyk, 18 U.S.C. §922(G)(9) and the LambertDue Process Exception Requiring Actual Knowledge of the Law: United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000), 80 Neb. L. Rev. 103 (2001).

Louis carefully "cases" a bank for two weeks, noting the times that every employee enters and exits. He knows that by 2 a.m., the only person in the bank is a guard. He arranges for someone to call the guard at 1:45 a.m. and tell him that his wife has just been taken to the hospital. Sure enough, the guard leaves by 1:50 a.m., giving Louis at least two hours to commit his theft. He breaks though the back door, opens the vault, and begins removing money, when he discovers a bank teller who was unwittingly locked inside the vault. Louis calls the hospital and waits until the paramedics arrive. The teller is saved. Louis is then prosecuted for "knowingly breaking and entering a building which is occupied by one or more persons." Is he guilty (a) under the common law? (b) under federal law? (c) under the Model Penal Code?

The question, of course, is whether Louis must "know" that there was a person in the building. (Contrast the Model Penal Code definition of "occupied structure," which includes any building that MAY be occupied, whether or not it is at the time of the crime. MPC Section 221.0(a).) Louis did not "know" that — indeed, he was convinced that no one was in the bank. Under the common law, the answer is unclear: While most courts would say that "knowingly" modifies that phrase, some courts have held that the adverb stops at the verb, and that it is enough if the defendant knows the "general nature" of his conduct, rather than the specifics. If the statute is federal, the answer will revolve around whether the decision in Flores-Figueroa(discussed in the text, at page 83) applies to this statute. Although the court relied upon legislative history and intent, it also announced the general proposition that the "natural reading" of any criminal statute is that the adverb (mens rea word) applies to all the critical parts of the statute. Therefore, it is likely, but not assured that Louis will not be guilty of the crime. Under the Model Penal Code, the answer is really easy. Surely "occupied by one or more persons" is a material element of the offense, and Louis is off the hook. Caveat. At least so far as the common law response, there is one possible hook — the "greater crime" theory, discussed in more detail in Chapter 6. That theory is that if the defendant knows he is engaged in a crime (and breaking into the bank would itself be criminal trespass at least), then he is guilty of any "greater" crime that he happens to commit. We'll get to that question when we get to it.

One fine October day, Napoleon, an avid hunter, goes hunting for deer. An animal scurries across the path, and Nappy, in a flash, shoots. He discovers he killed a child. Is Nappy guilty of any form of homicide ("purposely," "knowingly," "recklessly," or "negligently" killing a human being)?

Almost certainly not. Under the common law, Nappy's mistake will exonerate him; under the MPC, while Nappy clearly intended the death of what he shot, he did not hope or believe that it was a child, nor was he aware that it was. On the question of recklessness or negligence, we would have to explore the possibility that a child would be in the middle of a forest without a parent. This risk seems so unlikely that its disregard is neither reckless nor negligent.

Riffi is charged with intentionally (purposely) running down and killing Constantine. Riffi argues that Constantine was a complete stranger, and that the death was an accident. The prosecutor seeks to introduce evidence that Riffi is of Armenian background, and that Constantine is Turkish American. The prosecutor's theory is that Riffi is seeking revenge on the Turks for the genocide committed against the Armenians in the early twentieth century. Riffi argues that motive is not relevant to the criminal law, and that the evidence should be precluded. Al has a license to carry a concealed .45 Colt revolver. On Mother's Day, he takes his entire family, including his wife, two children, and both his and his wife's mothers, to Boliva's, his favorite family restaurant, which he has frequented at least monthly for the past two years. As he sits down to dinner, he is tapped on the shoulder by Pablo, the local sheriff, who charges him with violating the following statute: "It is illegal to carry a firearm in an establishment licensed to dispense alcoholic beverages." It's a fourth degree felony, punishable by a maximum sentence of 18 months. It turns out that Al forgot that his Colt was in his jacket pocket. Al knows that he has the gun on his person. What he doesn't know is that that on May 1, Boliva's obtained a liquor license, which it had never had before. This is Al's first visit since May 1. What result?

Al will be spending Mother's Day in prison next year. The statute does not require that Al "know" that the restaurant has a liquor license. State v. Torres, 134 N.M. 194, (N.M. App., 2003). The Torres court held that the knowledge requirement did not apply to the liquor store; as to that, the statue was a "strict liability" offense (see Chapter 6). If New Mexico were a Model Penal Code state, however, the result would be different. Under the MPC, the mens rea requirement applies to each material element. Given the specificity of the language in the statute, which singles out "establishments licensed to dispense alcoholic beverages," it is clear that the location is material to the statute's overall purpose — i.e., the evil sought to be prevented. Therefore, Al must have known that the establishment was licensed to dispense alcoholic beverages to be culpable under the MPC.

Riffi is charged with intentionally (purposely) running down and killing Constantine. Riffi argues that Constantine was a complete stranger, and that the death was an accident. The prosecutor seeks to introduce evidence that Riffi is of Armenian background, and that Constantine is Turkish American. The prosecutor's theory is that Riffi is seeking revenge on the Turks for the genocide committed against the Armenians in the early twentieth century. Riffi argues that motive is not relevant to the criminal law, and that the evidence should be precluded. Al has a license to carry a concealed .45 Colt revolver. On Mother's Day, he takes his entire family, including his wife, two children, and both his and his wife's mothers, to Boliva's, his favorite family restaurant, which he has frequented at least monthly for the past two years. As he sits down to dinner, he is tapped on the shoulder by Pablo, the local sheriff, who charges him with violating the following statute: "It is illegal to carry a firearm in an establishment licensed to dispense alcoholic beverages." It's a fourth degree felony, punishable by a maximum sentence of 18 months. It turns out that Al forgot that his Colt was in his jacket pocket. What result?

At least in New Mexico, Al will be back on the ranch in no time. Even though the statute doesn't use the term "knowingly," the court in State v. Powell, 115 N.M. 188, 191 (Ct. App. 1993), noted that the intent to possess a firearm requires "the knowledge that the object possessed is a firearm." The same result will be reached under the MPC — under §2.02(3), the default provision is recklessness, and there are no facts here to suggest that Al "consciously disregarded" the risk that he was taking the gun into the restaurant.

Elizabeth, jealous that her boyfriend, Bob, was also dating Connie: 3a.drove her car directly at Connie while Connie was crossing the street, hoping to kill her while making it look like an accident. Her car struck and killed Connie. 3b.took a gun she knew was loaded over to Connie's apartment and waved it at Connie, yelling that Connie had better not see Bob again or else. The gun discharged and killed Connie. 3c.while driving her car, failed to see Connie crossing the street in a pedestrian crosswalk because Elizabeth was totally distracted by her own jealous rage. 3d.while driving her car, suffered a heart attack for the first time in her life and lost consciousness. Unfortunately, her car struck and killed Connie while Elizabeth was unconscious. 3e.while driving her car, started to feel drowsy. Rather than pull over, Elizabeth continued driving. Soon thereafter, Elizabeth fell asleep at the wheel and her car struck and killed Connie. 3f.while driving her car, started to feel drowsy. Pulling her car over to the curb, Elizabeth took a nap so she would not fall asleep while driving. She left the motor running to provide heat because it was so cold outside. Awaking suddenly from a deep sleep, Elizabeth's hand struck the automatic gear shift, putting the car into drive. Unfortunately, the car struck and killed Connie. In which of these instances could Elizabeth have committed a voluntary act?

Elizabeth's driving the car directly at Connie is a voluntary act. She moved her hands on the wheel and pressed her foot on the gas pedal so that the car would collide with Connie. She consciously directed her body to engage in behavior that constitutes a "voluntary act." 3b.Elizabeth's waving a loaded gun at Connie is a voluntary act that satisfies the criminal law's requirement of an actus reus. The fact that the gun discharged "accidentally" (i.e., arguably without any mental determination on Elizabeth's part) does not preclude criminal responsibility for a homicide charge. A voluntary act is not rendered involuntary simply because it may include an involuntary act or because it had unintended consequences. 3c.Elizabeth's driving her car is still a voluntary act for the same reasons described in 3a. The fact that the car struck Connie because Elizabeth inadvertently did not see her does not alter the essential nature of Elizabeth's driving as a voluntary act. 3d.Because Elizabeth lost consciousness as a result of an unforeseeable heart attack, her behavior during this time period is not considered a voluntary act. She did not, in any sense, control the vehicle and her physical incapacity to change or alter her conduct make this an "involuntary act" as far as the criminal law is concerned. 3e.Though Elizabeth was sleeping when her car struck and killed Connie and was not itself a voluntary act, Elizabeth has still engaged in a voluntary act by driving even though she was tired. Thus, this aspect of her behavior satisfies the criminal law's general requirement of at least one voluntary act in the course of conduct before criminal responsibility can attach. 3f.This is a tough call. Elizabeth may have been in an unconscious state when her hand engaged the gear shift of the car. The prosecutor would argue that this case is like the case in 3e above; that is, Elizabeth engaged in a voluntary act when she went to sleep leaving the car engine running. The defense would argue that the relevant course of conduct is Elizabeth's "act" of engaging the gear shift while sleeping; consequently, there is no act that can satisfy the criminal law's insistence on a voluntary act. It is not clear how this case would come out.

Scott is seated in a large auditorium with thousands of people watching his niece's college graduation. Halfway through the ceremony he thinks he smells smoke, so he shouts: "Fire! We all have to get out of here! There's a fire!" There is no fire. Unfortunately, everyone panics and, as a result, many people are injured and three people die. The smoke Scott smelled was actually the result of an uncinate fit — an episodic seizure of the uncinate lobe of the brain that can cause abnormal sensations of smell. This smell of smoke led him to believe that there really was a fire danger. Actus Reus?

This is a real brainteaser. An uncinate fit, which consists of smelling or tasting hallucinations, has been connected by medical experts to a type of brain tumor. Scott will argue that he did not commit a voluntary act because he was subjectively experiencing the "smell" of smoke. In fact, his defense attorney will argue Scott should be praised for his behavior because he acted as a "good Samaritan" and warned people of what he honestly sensed to be imminent danger to life. Thus, Scott cannot be punished for his reasonable response to an unwilled, but actual sensory sensation. (Of course, if Scott had experienced these false smells before and did not take steps to determine what caused them or to stop acting on them, he may have committed a prior "voluntary act" by not taking appropriate precautions; this would be similar to someone who drives a car knowing he suffers from epilepsy. See the Decina case in this chapter.) The prosecution will argue that Scott voluntarily did yell "Fire!" in a crowded room when there was, in fact, no fire. She will insist that Scott's imagined smell of smoke should be analyzed as a "circumstance" element of actus reus rather than as a part of the "conduct" element. Consequently, Scott's criminal responsibility under the MPC will depend on what, if any, culpability or mental state is required with respect to this element (see Chapter 4). If it is a strict liability element, then Scott may be convicted if the prosecutor's analysis prevails. If, however, knowledge or recklessness about real danger is required, Scott will probably not be convicted. What if negligence is required? Should the objective standard of negligence include Scott's physical illness? Under the common law, Scott might have a "mistake of fact" defense. But he must prove by a preponderance of the evidence that he honestly and reasonably believed that there was smoke in the room. As with negligence, should Scott's physical ailment be considered in the jury's determination of "reasonable"? How would you instruct the jury if you were the judge? Should the law emphasize the harm done or the actor's behavior and attitude? Note how careful analysis is often required in determining what is included in the criminal law's definition of a voluntary act.

Mike suffers from paranoid schizophrenia — the belief that everyone is out to kill him. Nurse Ratchet, who works in the mental hospital where Mike is detained, knows this. One day, Mike sees Jack Nichols, and shouts, "He's going to kill me. Someone give me a knife." Ratchet, who has always detested Nichols, provides the weapon to Mike, who kills Jack. Who's responsible for the death?

We will discuss insanity in detail in Chapter 17, but you already know (from life, if not from a criminal law casebook) that an insane person is excused for his crimes. But Ratchet is not insane (jealousy usually does not qualify). And since Mike's actions are not justified, but "merely" excused, Ratchet is guilty of the crime of homicide. A person who understands that an act is not justified is guilty if she helps an excused person commit that act. The criminal law may be crazy, but it's not insane.

Stan told Gary, a federal undercover narcotics agent, that Stan's friend, Stella, occasionally drives to Mexico, purchases heroin, and smuggles it into California where she resells it. He also told Gary that he thought Stella would probably drive with Gary to Mexico where they could pick up heroin and bring it back to California for resale at a hefty profit. Gary contacted Stella and they decided to drive to Mexico together, buy the heroin, and bring it back to California. They were stopped while driving back across the border. Can Stan and Stella be convicted of conspiracy to transport heroin into the United States?

Without additional evidence, it would be difficult to prove that Stella and Stan had previously agreed to transport heroin into the United States. It seems more likely that Stan was simply telling Gary about Stella's past drug smuggling. This is particularly true since it was Gary who contacted Stella and made specific arrangements. Thus, it would be very difficult to convict Stan and Stella of conspiring together to transport heroin into the United States. Whether Stella can be convicted of conspiracy to transport heroin into the United States depends on whether the federal law embraces the unilateral or bilateral theory of conspiracy. The prevailing view is that it adopts the bilateral theory; thus, Stella cannot be convicted of conspiring with Gary, an undercover federal drug agent, who did not have the necessary mens rea to commit the object crime. Stella can be convicted of an attempt to transport heroin into the United States, but she cannot be convicted of conspiracy.

José was arrested after flying into JFK International Airport in New York on a flight from Afghanistan. The U.S. Attorney charged him with conspiracy to commit terrorism, including future acts of murder and kidnapping people in a foreign country and planting explosive devices in the United States. At trial, the prosecutor introduced a signed application form José filled out to attend a training camp run by Al Qaeda in Afghanistan. Can José be convicted of conspiracy to commit terrorism on this evidence? What if the prosecutor could also show that José actually completed the training camp?

he prosecutor would argue that the application form clearly establishes that José has intentionally joined a well-known terrorist group, Al Qaeda, which has as its only goal committing criminal acts of terrorism against citizens of the United States and other countries here and abroad. By signing this application, he has effectively become a member of an on-going conspiracy and, under well-settled case law, is responsible not only for the criminal act of conspiracy itself, but also for all reasonably foreseeable crimes committed by other co-conspirators in furtherance of the conspiracy after he became a member. Under a bilateral conspiracy approach, José has accepted an offer from Al Qaeda to join its ranks and participate in terrorist training. By signing the agreement he has not only signaled that he is joining this criminal conspiracy, but that he will become proficient in carrying out acts of terrorism. Any requirement of an additional act is easily satisfied by any of the daily acts of terrorism committed by other members of the Al Qaeda conspiracy, his co-conspirators. In either case, José can be convicted of conspiracy to commit terrorism and will be responsible for all foreseeable acts of terrorism committed by his partners in crime in the future, even those unknown to him . This responsibility attaches even if he is in custody unless he withdraws from the conspiracy. Defense counsel would claim that, at worst, José simply indicated he might join the terrorist group at some time in the future. Under the common law, he has not agreed with another person or organization to commit a criminal act. Nor did he form a unilateral conspiracy since he had no present intention to join any criminal conspiracy. Certainly he did not commit any overt act in furtherance of the conspiracy. The government is using flimsy evidence of possible future criminal conduct to impose expansive criminal responsibility on José. Of course, presenting evidence that José participated in the terrorist training camp would strengthen the government's case immensely. The government would argue that defense counsel can no longer claim that José only indicated a possible willingness to join the conspiracy at some time in the future; he actually became an active member. The defense counsel would argue that mere preparation is not a criminal agreement, but that argument is very weak.