Criminal Law

Professor: Ohlin (Jens David Ohlin) Semester: Spring 2016

Overview

A foundational criminal law course covering the tripartite structure of criminal liability: elements of the offense (act, mental state, causation, attendant circumstances), justifications (self-defense, necessity), and excuses (duress, intoxication, insanity). The course integrates MPC and common law analysis throughout, with sustained emphasis on the principle of proportional culpability, fair labeling, and the policy rationale behind punishment. Exam structure: three questions with four sub-parts each, 120 points evenly distributed (~15 minutes per question). Ohlin instructs students to evaluate all relevant legal tests, compare their merits, and consider theories of justice.

The Criminal Process

1. Complaint and investigation — state initiates for victimless crimes
2. Arrest — judge issues warrant on probable cause; Miranda warnings triggered by custodial interrogation
3. Bail
4. Indictment/preliminary hearing — grand jury (non-adversarial; 5th Amendment grand jury right never incorporated against states)
5. Pre-trial — prosecution bears discovery obligations (Brady); CL systems have adversarial custody of evidence
6. Voir dire — challenges for cause; peremptory challenges subject to Batson
7. Trial — rules of evidence filter prejudicial/probative evidence; civil law jurisdictions lack juries
8. Sentencing — bifurcated from guilt phase; allow mitigation strategy; Blakely/Apprendi limits judicial fact-finding that enhances sentences
9. Appeal — Double Jeopardy bars government appeal; defendant can appeal on law or sufficiency of evidence; jury nullification (State v. Ragland)

Topics Covered

Punishment Theory

• Consequentialist: general and specific deterrence; incapacitation; rehabilitation
• Deontological/Retributivist: punishment as desert, independent of social utility; object to general deterrence as using D as a mere instrument
• Expressivist: punishment as community condemnation and social norm reinforcement
• Key cases: United States v. Brewer (2013) (light white-collar sentence); Ewing v. California (2003) (three-strikes proportionality); United States v. Madoff (150 years as expressivism)
• Death penalty limits: Atkins v. Virginia (2002) (mentally disabled exempt); Roper v. Simmons (juveniles exempt); Kennedy v. Louisiana (non-homicide cases); McCleskey v. Kemp (systemic race statistics insufficient for individual challenge)

Legality and Statutory Interpretation

• Written statute requirement: nulla poena sine lege — no punishment without a pre-existing written law
• Retroactivity: Ex Post Facto Clause — change must be “unexpected and indefensible” (Rogers v. Tennessee)
• Vagueness: adequate notice to ordinary person; prohibits excessive police discretion (City of Chicago v. Morales)
• Rule of lenity: ambiguity resolved in defendant’s favor (Bell v. United States)
• How to read penal statutes: identify (1) conduct (actus reus), (2) mental state (mens rea), (3) causation, (4) attendant circumstances, (5) affirmative defenses
• Canons: textualism, purposivism, intentionalism; look to CL antecedent

Actus Reus

• Voluntariness requirement — presupposes a willed bodily movement (State v. Utter — automatism/conditioned response)
• Automatism as (i) attack on actus reus or (ii) species of insanity defense
• Involuntary utterances (People v. Nelson); strict liability statutes can displace voluntariness (State v. Deer)
• Omissions — penalized only when D had a legal duty to act:
  • Special relationship; undertaking of rescue; creation of hazard; statutory duty; contractual duty
  • Commonwealth v. Pestinikas (contractual duty to provide care, breach = omission)
  • State v. Davis — expanded special relationship to cover child protection; reliance argument
  • No general duty to rescue (like tort); bystanders not liable unless they encouraged crime
  • Physicians: no duty to provide ineffective treatment

Mens Rea

Common Law:

• General intent: intend the action but not necessarily the consequence
• Specific intent: intend the action and intend the result (two layers, e.g., burglary)
• Transferred intent: “intent follows the bullet” — under MPC, only reckless as to unintended victim

MPC mental states (§ 2.02):

• Purposely — conscious object to engage in conduct or cause result
• Knowingly — practically certain conduct will cause result
• Recklessly — conscious disregard of substantial and unjustified risk
• Negligently — should have been aware of substantial and unjustified risk (no conscious disregard)
• Strict liability — regulatory offenses; minor penalties; inherently dangerous items put D on notice (Staples v. United States; United States v. Apollo Energies)

Willful Blindness:

• United States v. Jewell — deliberate ignorance = knowledge; MPC § 2.02(7) awareness of high probability
• High probability threshold fails with one-in-five probability; cannot aggregate for individual punishment

Mistake:

• CL: mistake of fact defense if (i) reasonable and (ii) specific intent crime; moral wrong doctrine; legal wrong doctrine
• MPC § 2.04(1): mistake negates required mens rea element — defense to extent it negates required mental state
• Reliance on official statements of law: MPC § 2.04(3) — judicial decision, administrative order, official interpretation (People v. Marrero)
• Tax: Cheek v. United States — “willfully” requires knowing one owed taxes and refused; Ratzlaf — must also know structuring was criminal

Causation

• But-for (cause-in-fact): overdetermination addressed by substantial factor test
• Acceleration theory: D accelerates otherwise inevitable death (People v. Jennings)
• Proximate cause — intervening agents:
  • Negligent actors: do not break chain of causation (e.g., negligent medical care)
  • Intentional actors: (i) normal/foreseeable (responding cause) = does not break chain; (ii) abnormal and unforeseeable (coincidental cause) = breaks chain
  • State v. Smith — brain damage leading victim to neglect insulin: foreseeable result, chain not broken
  • People v. Rideout — apparent safety doctrine: victim leaving apparent safety breaks chain
  • Dangerous games: concert liability for drag racing, roulette
• MPC § 2.03(3): result not too remote or accidental to have just bearing on liability — normative causation test

Homicide

Intentional Murder

• CL: malice standard — expressed (intentional) or implied (reckless)
• 1st degree: deliberation and premeditation
  • Jurisdictional split: (i) premeditation or (ii) deliberation; (i) premeditation and (ii) deliberation
  • State v. Guthrie — momentary deliberation insufficient; requires consideration, endorsement, ratification
  • Commonwealth v. Carroll — instantaneous premeditation sufficient; jury question
  • Taylor v. State — implied intent from prior dispute and evidence
• 2nd degree: intentional without premeditation; implied malice (reckless with depraved indifference)
• MPC § 210.2: purposely/knowingly (2nd degree); first degree distinction left to discretion

Voluntary Manslaughter — Provocation / EED

• CL adequate provocation categories (strict): extreme assault; mutual combat; illegal arrest; injury to close relative; sudden discovery of spousal adultery
• Elements: (1) triggering event, (2) heat of passion, (3) sudden — no cooling off, (4) causal connection to killing
• Castagna — triggering event from mob, no cooling off, connected to killing
• MPC § 210.3: Extreme Emotional Disturbance (EED) — reasonable explanation or excuse (functional jury standard; broader than CL)
• White — cell phone as triggering event; Utah retained objective EED standard; jury found unreasonable

Homicide schema:

• Intentional via premed/delib → 1st degree
• Intentional via malice/purpose/knowledge → 2nd degree
• Via felony → 1st or 2nd degree upgrade
• Via provocation/EED → voluntary manslaughter downgrade
• Unintentional (reckless) → involuntary manslaughter
• Via implied malice/extreme indifference → 2nd degree upgrade
• Via misdemeanor → involuntary manslaughter upgrade

Reckless Killings — Involuntary Manslaughter

• MPC recklessness: conscious disregard of substantial/unjustified risk ~ gross deviation from standard of reasonable person
• Kolzow — mother leaving child in hot car: risk-taking analysis (cracking window shows awareness)
• Enhancing to 2nd degree murder via: (i) implied malice (CL — abandoned and malignant heart); (ii) extreme indifference (MPC § 210.2(b))
• Knoller — dogs mauling woman; implied malice requires death, not just serious bodily injury
• Snyder — suffocating children for benefits: purpose negated, knowledge uncertain; reckless, but depraved indifference?
• Depraved indifference: objective community judgment vs. subjective D’s mental state — both views exist

Misdemeanor Manslaughter

• Killing + misdemeanor supplying mens rea, limited by proximate cause → involuntary manslaughter
• Biechele — use of fireworks (regulatory offense) proximately causing fire and deaths

Felony Murder

• While committing triggering felony: intentional killing → 1st degree; unintentional killing → 2nd degree
• Independent felony / merger doctrine:
  • Attempt always merges with completed offense; inchoate offenses merge
  • Assault with deadly weapon merges with murder; rape never merges
  • Sarun Chun — assaultive felonies all merge under CA doctrine
• Inherently dangerous felony: limits triggering felonies; abstract (judge as matter of law) or fact-based (jury) inquiry (Howard)
• Agency vs. proximate cause:
  • Agency: D must be the agent performing the killing (or a co-perpetrator)
  • Proximate cause (NY): extends to police defensive killings; transferred intent from triggering felony
  • Hernandez — D starts firefight; officer accidentally kills; NY uses proximate cause
• MPC § 210.2(1)(b): rebuttable presumption of extreme indifference for killings during robbery, rape, arson, burglary, kidnapping, escape
• Constitutional limits on death penalty for felony murder given lowered culpability

Negligent Homicide

• Deviation from standard of care; not about conscious/unconscious disregard
• MPC: gross negligence required; NY: gross negligence; other jurisdictions: ordinary or intermediate negligence
• Traughber — ordinary negligence instruction: thoughtlessness, heedlessness, inattention
• Williams — uneducated parents: court refuses to subjectivize the standard
• Hall — experienced skier: jury refuses to impose higher standard; convicted on negligent homicide

Rape

1. Force: CL violent crime → modern crime of nonconsent
   • Intrinsic vs. extrinsic force to sex act
   • Jones — verbal resistance + extrinsic force (pushing, pinning) sufficient; adopts extrinsic force standard
   • Cf. Berkowitz — shove and untying clothing insufficient (intrinsic only)
2. Threat of force: must prevent victim from resisting with reasonable fear
   • Objectively (reasonable person) and subjectively (sincere victim fear)
   • Physical harm threat required; nonphysical threat downgrades crime
   • Rusk — taking keys and inviting to apartment; dispute of fact for jury; reasonable fear analysis
   • MPC § 213.1: narrow list — imminent death, serious bodily injury, extreme pain, kidnapping
3. Consent:
   • Resistance as poor proxy; consent as verbal act or state of mind
   • Commissioner v. Lopez — no mens rea as to lack of consent ever required at CL; rape is general intent
   • Reckless = conscious disregard of possibility of no consent; negligent = should have been aware
   • NJ: intrinsic force + honest/reasonable belief defense; MA: extrinsic force makes mistake of fact unavailable
   • Sleeping: rebuttable presumption of non-consent; pre-consent doctrine rejected in Canada (Daviault)
4. Fraud:
   • In the factum → rape; in the inducement → not rape at CL
   • Boro v. Superior Court — disease-cure fraud: inducement only, not factum
   • Impersonation cases: identity of partner essential to marital sex → factum in some jurisdictions
5. Statutory rape: status-based, usually mandatory SL presumption; Romeo and Juliet laws; expanded post-Lawrence

Inchoate Offenses

Attempt

• Basic idea: punish attempts so police need not wait for completion; higher mens rea compensates for lower act requirement
• Some CL: punish attempts of specific intent crimes; MPC: purposely (conduct), may not require specific intent to result
• Distinguishing preparation from attempt:
  • Slight acts / physical proximity / dangerous proximity (causal) / unequivocality / probable desistance
  • MPC substantial steps test (§ 5.01(2)): strongly corroborative of criminal purpose
  • People v. Rizzo — dangerous proximity: looking for victim, not yet executing crime
  • Reeves — rat poison near homeroom; MPC substantial steps satisfied; Dupuy narrow rule overruled
  • J.D.L. — preparing bombs but still waiting for components; physical proximity test applied (acquittal); substantial steps analysis questions acquittal
• Impossibility:
  • Factual impossibility: never a defense (gun jams)
  • Legal impossibility: D does what he believes is illegal but isn’t a crime → not attempt
  • Smith — HIV biting officer; MPC factual impossibility: would constitute crime if circumstances as D believed them to be
  • Jaffe — hybrid legal impossibility: believed merchandise stolen but was not
  • Dlugash — shooting dead body believed alive → charged with attempted murder
• Abandonment:
  • Ross v. MS — stopped when victim spoke of daughter; test: voluntary and complete renunciation with no compulsion from victim’s resistance
  • MPC § 5.02(3): must voluntarily abandon and prevent commission
• Punishment: many countries punish attempts less; US mostly leaves to jury

Conspiracy (Inchoate)

• Elements: (1) agreement to commit unlawful act; (2) specific intent/purpose; (3) overt act in furtherance; (4) renunciation
• Distinct from mode of liability; does not merge with completed crime
• Rationale: group dangerousness; division of labor enables greater harm
• (1) Agreement:
  • Bilateral vs. unilateral: State v. Pacheco — WA statute; unilateral may suffice under MPC; bilateral preserves coherent scheme
  • United States v. Valle — online fantasy; no evidence of intent to act; court acquits
• (2) Specific intent:
  • United States v. Abu Ghayth — Al Qaeda spokesperson; speech as overt act; conspiracy doctrine highly malleable
• (3) Overt act:
  • Must be concrete; any member of conspiracy can perform; can be very minor
  • Internet searches/chats: unsettled; telephone calls are overt acts (Rommy)
  • MPC: no overt act required for 1st/2nd degree felonies
• (4) Renunciation:
  • Commonwealth v. Nee — must admit participation; creates self-incrimination tension
  • MPC § 5.03(6): must thwart the conspiracy; non-MPC: reasonable effort; federal: no defense
  • Very easy to join conspiracy; very difficult to exit

Solicitation

• Elements: (1) specific intent, (2) to solicit (hire, command, request, encourage, invite), (3) a third party to commit crime
• Inchoate crime even if solicitee does not commit crime; merges with successful crime
• Bilateral vs. unilateral: Breton — solicitation focuses on D’s acts and mens rea, not solicitee
• Failed communications: Cotton — uncommunicated solicitation is “attempted solicitation”; MPC § 5.02(1): immaterial if communication fails
• Kathy Rowe — soliciting rape through internet; innocent instrumentality; bilateral argument rejected
• Decker — hires assassin and provides detailed information; attempt by indirect acts

Modes of Liability

Accomplice Liability

• CL: principals (1st/2nd degree) and accessories (before/after the fact)
• Modern: principal (physical perpetrator) + accomplice (everyone else) — same punishment in most US jurisdictions
• MPC/German criminal code: 1/3 discount for accomplices — consistent with proportional culpability
• Elements:
  1. Actus reus: aiding, abetting, assisting, counseling, encouraging, advising, commanding, ordering, inducing, soliciting — some affirmative act; speech is verbal act; no omissions unless preexisting duty
     • State v. V.T. — mere presence and endorsement insufficient; Smith & Webb — recruited, selected victim, planned getaway = sufficient
     • Wilcox v. Jeffrey — financial stake beyond ticket purchase → accomplice
     • State v. Tally — increased likelihood of success theory; causal contribution not strictly required
  2. Purpose vs. knowledge:
     • Purpose (federal): “seeks by his action to make it succeed” — Learned Hand in Peoni
     • Knowledge (some states): lesser mens rea → criminal facilitation (NY), not accomplice liability
     • Coleman — driver and gun provider; knowing + specific criminal intent
  • Community of purpose: Russell — concert of action in gun battle; Ridley — shooting into crowd
• Related doctrines: 3. Natural and probable consequences: accomplice liable for reasonably foreseeable crimes (majority rule); MPC and federal courts reject — disproportionate culpability; Prettyman — reckless re: result, Ca. requires knowledge 4. Innocent instrumentality: using incompetent or child as instrument; mastermind = principal perpetrator; Bailey v. Commonwealth — gun battle orchestrated using police; Morissey — forced sex between two victims
• Defenses: derivative liability — if principal does not commit crime, accomplice generally not liable; but principal need not be known/caught/convicted (Standefer)
• Withdrawal/renunciation: MPC § 2.06(6) — deprive complicity of effectiveness, contact police, or prevent crime
• Constitutional limits: 8th Amendment bars death penalty for accomplices without specific intent to kill (Enmund v. Florida)
• Victims as accomplices: MPC 2.06(6)(a) bars charging protected class victims

Conspiracy as Mode of Liability — Pinkerton

• Pinkerton liability: co-conspirators liable for crimes committed within scope of conspiracy or reasonably foreseeable
• United States v. Alvarez — murder of federal agent during drug conspiracy: reasonably foreseeable; co-conspirator receives 2nd degree based on recklessness
• Scope of conspiracy:
  • Bruno — linked rings of smugglers; large conspiracy possible if logically necessary for success
  • Kotteakos — independent FHA fraud schemes through same broker: separate conspiracies; D must know other conspirators exist
  • McDermott — banker, mistress, other boyfriend: no unitary purpose

Justifications

Self-Defense

• Elements: (1) reasonable belief of threat; (2) imminent threat; (3) proportional force; (4) no duty to retreat (with exceptions)
• Reasonable belief:
  • Hybrid objective standard: People v. Goetz — NY retained objective “reasonably believes” formulation; allows prior circumstances and physical attributes; risk of wholly subjective standard if too many factors included; racial beliefs problematic
  • Pure subjective (MPC § 3.04): D’s belief alone, allows all prior circumstances
• Imminence:
  • State v. Norman — battered wife; Ct declines exception; prior attacks insufficient; MPC “immediately necessary” may shift analysis
  • MPC rejects strict imminence for “immediately necessary at the time of its deployment”
• Duty to retreat:
  • Castle exception: in home, no retreat required; Riddle — yard not within castle
  • Stand your ground laws: statutory extension of Castle to all places D has right to be; creates per se rule for dangerousness of intruder; procedural immunity
  • George Zimmerman — if Trayvon lawfully defending himself, Zimmerman’s self-defense becomes illegitimate
• Imperfect self-defense:
  • Subjective good faith belief but objectively unreasonable → downgrade to voluntary manslaughter
  • Elmore — delusions do not fit imperfect self-defense; should fit insanity; court refuses to allow 3rd bite at apple
  • MPC § 3.09(2): reckless/negligent in forming belief → culpable for crime of that mens rea; downgrade to manslaughter
• Police use of force:
  • Tennessee v. Garner — must have reasonable belief suspect poses immediate danger to police or public; forward-looking inquiry
  • Graham v. Connor — objectively unreasonable force violates 4th Amendment
  • Scott v. Harris — ramming car: Garner analysis: immediate danger to public, deadly force necessary, warning given

Necessity

• Elements: (1) lesser evil; (2) present/imminent/immediate danger; (3) D not responsible for creating necessity; (4) no alternative; (5) causal link between act and harm avoided; (6) ceased illegal conduct when harm averted; (7) not legislatively disallowed
• Defense to murder: unavailable — The Queen v. Dudley and Stephens — deontological limit on utilitarian doctrine; every life has inherent moral worth; MPC and some civil law countries allow
• Prison breaks: rarely successful; must turn self in after threat averted (Bailey)
• Civil disobedience:
  • Direct disobedience: necessity generally allowed
  • Indirect disobedience: necessity not allowed — Schoon — always a legal alternative; no close causal link
• Ridner — threat not present/imminent (gun at pawnshop); continued illegal conduct beyond necessity
• Torture and terrorism: Dudley & Stephens rule inapplicable (detainee somewhat culpable; not murder); ex ante vs. ex post codification; Gafgen v. Germany (Art. 1 human dignity bars necessity for torture); Germany vs. US in hijacked airliner hypo

Excuses

Duress

• Threats vitiate autonomy and moral agency (pointing gun at someone’s head)
• Elements: (1) immediate threat of death/serious bodily injury; (2) well-grounded fear; (3) no reasonable opportunity to escape
• Reasonable firmness: hybrid objective/subjective — objectively reasonable for a person in D’s circumstances
• Defense to murder: unavailable in most US jurisdictions (Anderson — Dudley & Stephens rule extends to duress); MPC allows (outlier); ICTY: unavailable for soldiers who have higher duty to civilians
• Recklessly creating conditions: unavailable if D recklessly placed himself in situation where duress probable (MPC § 2.09(2))
• Dixon — duress is excuse (negates culpability), not denial of mens rea; elements independent
• Contento-Pachon — drug smuggling under family threat; satisfies all elements; no reasonable escape (corrupt police)
• DeMarco — mentally disabled D; § 309 hybrid objective/subjective reasonable firmness
• BWS and duress: subjectivizes reasonable firmness; critiqued as too subjective
• Imperfect duress: distinction from imperfect self-defense; duress and innocent instrumentality rule related
• Compulsion doctrine: broader catch-all not requiring threat from another person

Intoxication

• Voluntary: negates specific intent crimes at CL (cannot form higher mental states); does not negate general intent
  • MPC § 2.08: failure of proof defense if negates element; MPC § 2.08(4) stops defense at recklessness
  • Montana v. Engelhoff — states may eliminate voluntary intoxication defense without violating Due Process; not deeply rooted at founding
  • Time-shifting argument: define act as reckless decision to become intoxicated
  • Brown — MPC solution injected into NM specific/general intent scheme; ad hoc exception for depraved mind murder requiring subjective knowledge
• Involuntary: actor drugged without knowledge or will → affirmative defense; temporary insanity standard (MPC § 2.08(4))
  • Includes unpredictable effects of prescription/OTC drugs
  • Garcia — insulin-induced hypoglycemia: involuntary intoxication; reckless in failing to ingest sugar

Insanity

• M’Naghten (cognitive):
  • D committing one action but believes he is doing another, OR
  • D correctly perceives act but does not know it is wrongful
  • Sanders — compromise verdict between insanity and sanity on two counts
• Irresistible impulse (volitional): supplements M’Naghten; D unable to control behavior
  • Pollard — compulsive police officer; psychiatric experts vs. criminal system’s normative goals
• MPC substantial capacity (§ 4.01): lacks substantial capacity to appreciate criminality OR conform conduct to law
  • “Appreciate” (higher than “know”) broadens cognitive prong
  • Tracks volitional test for conformity prong
• Durham product test: unlawful act was the product of mental disease or defect; relies on causal link
• Federal courts (post-Hinckley): D must prove by clear and convincing evidence that D was unable to appreciate nature/quality/wrongfulness of acts; no volitional prong
• Definition of wrongfulness:
  • Legally wrong = community moral wrong (Crenshaw); individual moral belief cannot bootstrap defense
  • Exception: deific decree — D knows society considers it wrong but God commands it
• Guilty but mentally ill: to mental hospital first, then prison; medical model
• Policy: separate guilt and insanity phases; some jurisdictions prevent psychiatric evidence on mens rea in guilt phase; Norway medical model (Breivik)
• Diminished capacity: rule of evidence allowing psychiatric evidence to negate mens rea of offense

Key Doctrines

• Mens Rea
• Actus Reus
• Murder (Degrees)
• Felony Murder
• Attempt
• Conspiracy (Criminal Law)
• Accomplice Liability
• Self-Defense
• Necessity
• Duress
• Insanity Defense
• Strict Liability
• Voluntary Manslaughter
• Provocation and EED
• Pinkerton v. United States

Key Cases

• State v. Guthrie — premeditation requires more than an instant; momentary deliberation insufficient
• Commonwealth v. Carroll — instantaneous premeditation sufficient; jury question
• People v. Goetz — hybrid objective standard for reasonable belief in self-defense
• State v. Norman — imminence requirement; battered wife syndrome does not create exception
• The Queen v. Dudley and Stephens — necessity is no defense to intentional killing of an innocent
• United States v. Jewell — willful blindness equals knowledge; deliberate ignorance no defense
• People v. Rizzo — dangerous proximity test for attempt
• State v. Pacheco — bilateral vs. unilateral conspiracy
• State v. Utter — automatism and voluntariness of actus reus
• Atkins v. Virginia — mentally disabled exempt from death penalty
• Roper v. Simmons — juveniles exempt from death penalty
• McCleskey v. Kemp — systemic racial statistics insufficient for individual constitutional challenge
• Montana v. Egelhoff — states may eliminate voluntary intoxication defense
• Tennessee v. Garner — police use of deadly force requires reasonable belief of immediate danger

Exam Approach / Checklist

Exam format: 3 questions × 4 sub-parts = 12 questions, 120 pts, ~15 min each. Evaluate all legal tests, compare merits, rate justifications and excuses, consider theories of justice.

Tripartite Framework:

Step 1 — Elements of the Offense

1. Actus reus: Was there a voluntary act (willed bodily movement)? Automatism? Relevant omission with a legal duty to act?
2. Mens rea: Identify the required mental state under the statute — purpose / knowledge / recklessness / negligence / strict liability. Which elements of the offense does each mental state modify?
   • CL specific vs. general intent; transferred intent
   • MPC four-tier hierarchy; willful blindness = knowledge
   • Mistake of fact: does it negate the required mens rea? At what tier?
3. Causation: But-for cause established? Substantial factor? Proximate cause: was there an intervening agent; was the result foreseeable (responding cause) or unforeseeable (coincidental cause)?
4. Attendant circumstances: identify; does mens rea extend to them?
5. Modes of liability: Accomplice (actus reus of assistance + purpose/knowledge)? Conspiracy (Pinkerton — within scope or reasonably foreseeable)? Inchoate offense?

Step 2 — Justifications (negates wrongfulness of act; utilitarian analysis)

• Self-defense: (1) reasonable belief of threat (objective? hybrid?), (2) imminent threat (MPC: immediately necessary?), (3) proportional force, (4) duty to retreat? Castle doctrine? SYG?
  • Imperfect self-defense → downgrade to voluntary manslaughter
• Necessity/choice of evils: (1) lesser evil, (2) imminence, (3) no self-creation, (4) no alternative, (5) causal link, (6) ceased when harm averted; unavailable for intentional killing of innocent

Step 3 — Excuses (negates culpability of actor; moral blameworthiness analysis)

• Duress: (1) immediate threat of death/serious injury, (2) well-grounded fear, (3) no reasonable escape; unavailable for intentional murder; D must not have recklessly created the situation
• Intoxication: voluntary negates specific intent (CL) or purpose/knowledge (MPC, stops at recklessness); involuntary = temporary insanity standard
• Insanity: evaluate M’Naghten (cognitive), irresistible impulse (volitional), MPC substantial capacity (both prongs), Durham product test; rate their relative merits; consider definition of wrongfulness; diminished capacity as evidence rule

Background Principles to Invoke:

• Theories of punishment (deterrence, retributivism, expressivism)
• Principle of proportional culpability — Ohlin’s animating principle; resist inflationary extension mechanisms
• Fair labeling: labels send community messages; even 1st degree may not be most culpable
• MPC vs. common law distinctions throughout
• Legality and statutory interpretation principles