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

§ 5.02   Specific Mens rea Requirements

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

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

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

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

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

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

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

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

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

§ 5.03 Statutory Interpretation of Mens rea Terms

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

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

Examples include:

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

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

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

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

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

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

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

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

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

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

[B]  Model Penal Code

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

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

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

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

§ 10.02   Defense of Habitation

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

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

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

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

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

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

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

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

§ 10.03   Spring Guns

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

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

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

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

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

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

§ 11.02   Crime Prevention; Non-deadly Force

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

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

§ 11.03   Crime Prevention; Deadly Force

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

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

§ 11.04   Effectuation of an Arrest; Non-deadly Force

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

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

§ 11.05   Effectuation of an Arrest; Deadly Force

[A]  Common Law

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

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

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

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

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

§ 12.01   Generally

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

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

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

§ 12.02   Civil Disobedience

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

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

§ 12.03   Model Penal Code

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

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

§ 13.01   General Principle

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

§ 13.02   Duress as a Defense to Homicide

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

§ 13.03   Model Penal Code

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

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

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

Duress

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

§ 14.01   Voluntary Intoxication

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

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

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

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

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

§ 14.02   Involuntary Intoxication

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

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

§ 14.03   Model Penal Code

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

[B]  Exculpation Based on Intoxication

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

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

Intoxication

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

§ 15.01   Legal Tests to Determine "Insanity"

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

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

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

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

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

This test does not require total mental incapacity.

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

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

§ 15.02   Effect of an Insanity Acquittal

[A]   Mental Illness Commitment Procedures

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

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

[B]  Release After Commitment for Mental Illness

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

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

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

§ 15.03   Abolition of the Insanity Defense

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

§ 15.04   "Guilty But Mentally Ill"

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

Insanity

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

§ 16.01   Generally

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

§ 16.02   Mens rea Defense

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

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

§ 16.03   "Partial Responsibility" Defense

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

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

Diminished Capacity

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

§ 17.01   Common Law Rules

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

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

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

[C]  General-Intent Offenses

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

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

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

§ 17.02   Model Penal Code

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

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

Mistakes

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

§ 19.01   Overview to Inchoate Conduct

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

§ 19.02   Model Penal Code

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

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

Inchoate Crimes

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

§ 20.01   Attempt, Generally

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

§ 20.02   Mens rea of Criminal Attempts

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

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

§ 20.03   Actus reus of Criminal Attempts

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

§ 20.04   Defense of Impossibility

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

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

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

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

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

§ 20.05   Defense: Abandonment

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

§ 20.06   Model Penal Code

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

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

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

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

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

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

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

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

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

Attempt

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

§ 21.01   General Principles

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

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

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

§ 21.02   Model Penal Code

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

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

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

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

Solicitation

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

§ 22.01    General Principle

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

[A]   The Agreement

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

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

[B]   Overt Act

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

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

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

[C]   "Plurality" Requirement

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

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

§ 22.02   Mens rea

[A]   In General

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

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

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

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

§ 22.03   Parties to a Conspiracy

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

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

[C]  Common Law Analysis

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

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

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

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

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

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

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

§ 22.04   Relationship to Target Offense

[A]   General rule

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

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

[B]   Punishment When the Target Offense is Committed

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

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

§ 22.05   Defenses

[A]  Impossibility

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

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

[B]  Abandonment

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

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

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

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

[D]   Legislative-Exemption Rule

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

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

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

§ 23.01   General Principles

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

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

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

§ 23.02   Parties to the Complicity

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

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

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

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

§ 23.03   Acts Giving Rise to Accomplice Liability

[A]         Common Law

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

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

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

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

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

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

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

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

§ 23.04   Mens rea in Complicity Offenses

[A]         Common and Statutory Law

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

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

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

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

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

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

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

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

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

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

§ 23.06   Limits to Accomplice Liability

[A]         Common Law

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

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

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

(1) he is the victim of the offense;

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

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

a)  neutralizes his assistance;

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

c)  attempts to prevent the commission of the crime.

Liability for Another's Conduct; Complicity

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

§ 24.01   Definition of Homicide

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

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

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

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

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

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

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

§ 24.02   Murder

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

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

[B]  Intent to Kill

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

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

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

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

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

§ 24.03   Felony-Murder

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

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

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

§ 24.04   Limits on the Felony-Murder Rule

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

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

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

[D]  Killing by a Non-Felon

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

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

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

§ 24.05   Manslaughter

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

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

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

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

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

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

[D]  Model Penal Code

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

[MPC § 210.3(1)(a)-(b)]

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

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

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

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

§ 25.01   General Principles

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

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

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

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

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

§ 25.02   "Forcible"

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

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

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

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

§ 25.03   Marital Immunity Rule

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

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

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

§ 25.04   Evidentiary Issues at Rape Trials

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

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

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

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

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

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

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

§ 25.05   Other Sex Crimes

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

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

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

§ 26.01    

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

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

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

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

[C]  "Of Another"

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

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

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

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

[E]   Carrying Away (Asportation)

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

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

[F]   Personal Property

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

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

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

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

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

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

[G]   Intent to Steal

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

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

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

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

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

§ 26.02   Embezzlement

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

§ 26.03   False Pretenses

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

[B]  Elements of the Offense

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

[2]  Existing Fact

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

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

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