CRIMINAL LAW OUTLINE

HOMICIDE CRIMES

Intentional Killings Unintentional Killings

Premeditated and deliberated murder

“First-degree murder”

Intentional murder Extremely reckless killing

“Second-degree murder” “implied malice murder”
“express malice murder” Typically form of “second-degree murder”
Punished at the same level as intentional murder
Depraved heart murder (callousness)

Voluntary manslaughter Involuntary manslaughter

“Heat-of-passion” killings ordinary recklessly
Consciously aware of the risk that what you are doing
might kill someone

Criminal negligence
Defendant is unaware of substantial and unjustified
risk of causing death

Some felony murders Some felony murders

intentional unintentional
*necessary lesser included offenses as you go down on the list

INTENTIONAL KILLINGS

INTENT TO KILL MURDER

● Intending to kill without premeditation or deliberation (impulsive)

● Intentional murder / express malice murder / second-degree murder

Intent to Kill
● One has intent to kill if they consciously desire that someone die or are substantially
certain they will die by their conduct
○ Includes both purposeful and knowing conduct with respect to death
● People are generally presumed to intend the natural and probable consequences of what
they do.
○ Juries may infer intent to kill from the use of a deadly weapon directed at a vital
part of the human body
 ● Omissions to act in the face of a legal duty may constitute murder (but not easy to prove
an intent to kill based on something a person failed to do)
● Intentional killings may be entirely impulsive
○ Intent to kill murder does not require that you have thought about it in advance
● Murder = conduct that is accompanied by an intent to kill
● Common law included “malice aforethought”
● Today it means the desire to kill
● It is a specific intent crime, because it requires more than just the act
● Intent with a desire to bring about the killing of another human being
● Typical form of murder: A engages in some kind of conduct that results in the death of
another human being
● First: Was there a causal link between A’s conduct and the death of B
● Second: Did A have the intent to bring about this result
● People are generally presumed to have intended the natural and probable
consequences of their actions.
○ A reasonable juror may presume this principle
● Judge’s job as gatekeeper is to decide whether a reasonable person could believe the facts
or not
● Intent is to be inferred from circumstantial evidence

Intent to Grievously Injure Murder

● Idea is that the killer only meant to injure the victim seriously or grievously, not kill them
● At common law this was murder, but only a minority of jurisdictions now recognize this
as miurder
● Example: beating someone up & it gets out of hand
● How bad must the intended injury be?
○ Generally must be something that makes you seriously worry about “life, health,
or limb”
○ Broken rib might not suffice despite the risk of puncturing a lung
○ An injury that seriously impairs the victim in a permanent or semi-permanent way
would be enough.
● Even though one may not intend to kill, he was aware of the deadliness of the instrument
he is holding. So if he acts in a manner that is inconsistent with the grievous nature of
that instrument, the law imputes on him an intent to kill.
● This common law doctrine has faded away, but it has since evolved by statute into what
we call “Extremely reckless killing” (a form of second-degree murder)

PREMEDITATED AND DELIBERATE MURDER

● Most jurisdictions define premeditated and deliberate killings as first degree murder
 ● A killing that one thinks about beforehand is thought to be more blameworthy, and a
person who commits such a killing is thought to be more dangerous.
● Examples: a hitman, a “mercy killing”
● Sociology
○ The majority of intentional killings appear to be impulsive, emotional acts
○ Men are most likely be killed by a male acquaintance with whom they had an
argument
○ Women are most likely to be killed by men with whom they have been intimate
○ Children are most likely to be killed by a parent
○ Remorseless sociopaths only account for a small portion of American homicides

Premeditation and Deliberation Defined

● All jurisdictions require both quantity of thought and quality of thought
○ Quantity of thought = refers to the time one spends about killing
○ Quality of thought = refers to how clearly one was about to think about it
○ Some jurisdictions use premeditiation to refer to both; others use deliberation to
refer to quality
● Broad definition
○ Treats premeditation and deliberation as virtually the same as intending to kill
○ Jurisdictions with this definition require “no appreciable time” for premedition
● Narrow definition
○ Most jurisdictions require more than the broad definition
○ Requires a period of “brief reflection,” but no jurisdiction identifies a minimum
period of time
○ Majority approach: you must have enough time to change your mind, to give your
decision a “second look”
● Time to think about killing is not enough
○ The jury must conclude that the killed thought about the decision in some
meaningful way
● Deliberation requires that the killer reflects on what he is about to do
○ Some jurisdictions describe it as a process where one thinks of the reasons for and
against (pros and cons)
○ Others emphasize the need for a “cool purpose” free from the influence of passion
or excitement
○ Others emphasize that the deliberation does not require the absence of “hot
blood,” only that the killer’s capacity to reason remain undisturbed by hot blood
● Must be an appreciable amount of time
○ Appreciable means that you have enough time to change your mind
● Deliberation → quality of thought
● Premeditation must be of sufficient amount of time that he weighed the pros and cons
 1. Failed Excuses
●
2. Three Earmarks of Premeditation and Deliberation
● Not required, but the presence of one or more makes the argument for
premeditation and deliberation easier
(1) Planning activity
- You can’t plan something that you do in the spur of the moment
(2) Motive
- Means that the killer had a reason that he could have thought about in
advance
(3) Manner of killing suggests passage of time or advance thinking
- Refers to things such as lying in wait for someone or acquiring a weapon
- Passage of time alone will not suffice.

Model Penal Code

● MPC does not distinguish between premeditated and deliberate murder and intentional
murder. It does not divide murder into degrees. A purposeful or knowing killing is
murder, no matter how long or little you thought about it.
ARTICLE 201. CRIMINAL HOMICIDE
§ 210.2. Murder
1) Except as provided in Section 210.3(1)(b), criminal homicde constitutes a murder when:
a) It is committed purposely or knowingly…
2) Murder is a felony of the first degree.

VOLUNTARY MANSLAUGHTER

● Manslaughter is the homicide crime below murder. It is punished less harshly than
murder in all jurisdictions.
○ Involuntary manslaughter → accidental (unintentional) killing
○ Voluntary manslaughter → intentional killing
● Voluntary manslaughter is like “discounted murder”
○ Intended to kill someone, but the sentenced is “discounted” to VM
● Main idea is that not all intentional killings are equally blameworthy
○ Murder is reserved for particularly evil intentional killers (malice)
● Common law
○ Common law discounts murder down to manslaughter when something “negates
the malice” required for murder (i.e. adequate provocation)
○ At common law, an intentional killing committed in a “sudden heat of passion”
sometimes constitutes voluntary manslaughter instead of murder. Heat of passion
 would only mitigate murder down to manslaughter if it was a response to
“adequate provocation,” which was very strictly defined.
● Provocation standard → whether a reasonable person might lose control of their emotions
● Voluntary manslaughter is an imperfect defense
● Less blameworthiness, less punishment because of the circumstances in which they occur
● Certain circumstances that society understands will reasonable provoke a reasonable
person to respond with a killing

Elements of Provocation
● Adequate provocation is limited to things that would make an ordinary person of average
disposition “liable to act rashly” or “incapable of cool reflection”
● MPC replaces provocation with Extreme Mental or Emotional Disturbance
● 4 elements must be satisfied for provocation:
(1) The killer must have been actually provoked. – subjective
(2) A reasonable person would have been provoked. – objective
● RP would have also been so provoked that he would lose control
(3) The killer must not have cooled off before killing. – subjective
(4) A reasonable person would not have cooled off before killing. – objective

Adequacy of Provocation
● Early common law took a strict categorical approach. 5 categories of provoking events:
(1) Witnessing your spouse in the act of adultery
(2) Witnessing a violent assault on a member of your immediate family
(3) Being violently attacked
(4) Being illegally arrested
- Abandoned in most jurisdictions now
(5) Being engaged in mutual combat
● At common law, if you were provoked my something not on the list, then you wer guilty
of murder
● Strict vs. loose approach
○ Categories were strictly construed at common law and still in some jurisdictions
○ Many jurisdictions use a more flexible and expansive approach.
○ Basic idea is to give the jury a manslaughter option any time that a reasonable
person might lose control.
● Most jurisdictions stay close to the two basic types of provoking events that the common
law recognized: violent acts and sexual betrayal
● Words alone are not sufficient for adequate provocation.
○ Some jurisdictions make an exception for “informational words”
● What characteristics are considered to determine whether someone was reasonably
provoked?
 ○ Age and sex
○ Things that affect the degree of self-control

Two Approaches
● Categorical approach (strict)
○ There are certain categories that will constitute voluntary manslaughter
● Reasonableness approach
○ Allows for the jury to draw from the circumstances

Reasonableness of Cooling Off Period

●

Model Penal Code and EMED

● This reflects the less strict approach to incorporate reasonableness
§ 210.3 Manslaughter
1.) Criminal homicide constitutes manslaughter when…
b.) a homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is a reasonable explanation or
excuse. The reasonableness of such explanation or excuse shall be determined from the
viewpoint of a person in the actor’s situation under the circumstances, as he believes
them to be.
2.) Manslaughter is a felony of the second degree.

UNINTENTIONAL KILLINGS

INVOLUNTARY MANSLAUGHTER

● Baseline offense for very wrongful but unintentional killings

● The extraordinary unintentional killing that constitutes extremely reckless murder
● Majority of jurisdictions require at least criminal or gross negligence
● Minority requires reckless instead of criminal negligence
○ Recklessness = higher level of culpability. Consciously disregarding substantial
and unjustifiable risk of death
○ Criminally negligent = fail to recognize the risk
● Actor must be careless in some respect
○ Ex: Drunk driving, mishandling a firearm, gross violation of safety regulations
● Some jurisdictions recognize a form of involuntary manslaughter called unlawful act
manslaughter
DEPRAVED HEART MURDER

● Calloused heart…
● Someone who knows they are putting others at risk of death and doesn’t care
● Requires a certain indifference about whether someone is killed
● Involuntary manslaughter → indifference
● Depraved heart → extreme indifference
● Does not require awareness of a high probability of death
● “Implied malice”
○ not inferring intent
○ Inferring that you acted with such a high level of callousness that they impute(?)
that you acted with the intent to kill
● Depraved indifference is best understood as an utter disregard for the value of human
life–a willingness to act not because one intends harm, but because one simply doesn’t
care whether grievous harm results or not.
● Examples
○ Firing into a crowd
○ Driving a car along a crowded sidewalk at high speed
○ Opening the lion’s cage at the zoo
○ Placing a time bomb in a public place
○ Poisoning a well from which people are accustomed to draw water
○ Opening a drawbridge as a train is about to pass over it
○ Dropping stones from an overpass onto a busy highway
● Oftentimes the line will be blurry as to whether a defendant's conscious objective was to
kill or merely to injure a victim. But this is a question for the trier of fact.

FELONY MURDER

● Basic felony murder rule: one is guilty of murder if a death results from a felony one
commits or attempts to commit.
○ There are exceptions and limitations
● Applies to both intentional and unintentional killings
● First or second degree murder depending on the felony
● Distinguished from all other homicide crimes
○ No requisite mental state with respect to the conduct causing the death; only
matters whether the killer had the mental state required for the felony
○ If he committed (or attempted to commit) a felony covered by the rule and death
resulted, then he is guilty of felony mutder.
 ○ Described as a form of strict liability → a felon is strictly liable for a resulting
death regardless of his intent to cause it
● Applies if anyone dies during the commission of the felony
● The intent to commit the crime suffices as the requisite intent for murder

Policies behind the Felony Murder Doctrine

Why allow strict liability?
1. To deter felonies
2. To deter accidental deaths during felonies
3. To ease proof of homicide during felonies

Statutory Variations

The Basic Rule

Overview of Felony Murder Limits

● Some limitations are written in statute, and other limitations are read into statute by
interpretation
● Limitations are creatures of common law that have been incorporated into modern
homicide schemes by judges or legislatures
● If the legislature clearly intends to ignore a limitation, then the judge will abandon the
contrary common law presumption and interpret it as the legislature wrote it
● Types of limitations & exceptions:
1. Limits on the type of felonies that trigger the felony murder rule.
2. Exceptions for felonies that are not independent from the homicide itself.
3. Limits on the causal relationship between the felony and the resulting death.
4. Limits on the duration of the felony.

Limits on Types of Felonies

1. Enumeration
● The statute lists the felonies that suffice for felony murder and limits liability to
that list
● Some statutes are limited to only what is on the list but statutes differ
● These were created at common law and are most commonly enumerated:
○ Rape
○ Robbery
○ Burglary
○ Arson
○ Kidnapping
2. The Inherently Dangerous Felony Rule
 ● At common law, only felonies that were dangerous to human life supported felony
murder
● The inherently dangerous rule is not applied to felonies that are enumerated in the
statute
● Different interpretations as to what is inherently dangerous:
○ Abstract / per se (People v. Howard)
■ A felony is dangerous only if there is no way the felony can be
committed without creating a substantial risk that someone will die
■ Question is whether there was a possible way the felony could
have been committed safely.
■ Even felonies that are considered dangerous fail to satisfy this test
because there is a safe way to commit them
■ Only felonies that create a substantial risk of death to another can
serve as the basis of a felony-murder charge.

○ By manner of commission (Hines v. Georgia)

■ A felony is inherently dangerous if it was committed in a
dangerous manner in the present case

Limiting Felony Murder to Independent Felonies

● While death must result from a felony in order to support felony murder, the felony must
be independent from the resulting homicide.
● For example, assaultive crimes and involuntary manslaughter “merged” into the resulting
homicide and did not constitute felony murder.
● A felony is considered independent if it has an independent felonious purpose.
● Examples of felonies that can result in death but have an independent purpose are the
ones that are most commonly enumerated (see above)
○ Such crimes are considered for their own reasons, so they do not merge into any
homicides that result from their commission, and they create felony murder
liability.
● On the contrary – an intent to seriously injure another is not considered to have purpose
independent of any resulting homicide
● *independent felony rule*

Limits on the Causal Relationship Between the Felony and the Resulting Death
● res gestae = “the thing done”
● The felony murder requires that the killing be within the “thing done” by the felony
● 3 groups:

(1) Time and Place

 ● Temporary safety rule: The felony begins with conduct sufficient to constitute an
attempt and ends when a defendant reaches a place of temporary safety.
○ Majority rule

(2)
Logical Relationship Rules
● At common law, felony murder applied to acts committed in furtherance of the felony
● The death itself need not further the felony, just the act that caused the death.
● Logical nexus test:
○ time and place are only factors to be considered when assessing whether a killing
was logically related to the felony
○ the death must be more than a mere coincidence
● Felony-murder rule requires both a causal relation ship and a temporal relationship
between the underlying felony and the act resulting in death.
○ The causal relationship is established by proof of a logical nexus, beyond mere
coincidence of time and place, between
● Even if its accidental, it is foreseeable, so logic tells us it is not separate and independent
● P. 444
○ MPC approach
○ Presumption of recklessness

(3) Causation Rules

● Requiring a logical relationship between the death and the felony implies causation
● Two types of causal rules with felony murder:
○ General causal requirements applicable to all deaths
○ Special rules dealing with killings committed by non-felons
● General causal rules
○ Two approaches:
■ Requires only actual / factual / but for causation
● But for causation means that but for the felony the death would nto
have occurred
● Expands the scope of felony murder liability
■ Requires actual causation and proximate causation
● Proximate causation for felony murder means that the death a
foreseeable or natural result of the felonious act
● Majority rule
○ Such jurisdictions broadly define proximate causation
● Intervening causes*

Killings Committed by Non-Felons

● Majority rule: Felony murder liability does not extend to killings by non-felons.
 ○ Instead employ an agency theory of felony murder: the act causing death must be
performed by an “agent” of the felony, not just someone resisting it.
● Minority rule: Felons are liable for killings by non-felons under a proximate causation
theory.
○ Most jurisdictions that apply this rule do not include killings of a co-felon by a
non-felon.

Other Types of Felony Murder Liability

● Classic felony murder rule is based in common law
● Many jurisdictions have modified it to make it less harsh:
○ Generally include a requirement that the defendant have a culpable mental state
with respect to the conduct that caused the death
○ Some jurisdictions require that the felon perform an act “inherently dangerous” to
human life
○ Other jurisdictions use felony murder only as a “grading provision _ requiring
some proof of some form of express or implied malice but then provide that such
murders shall be first degree murders if committed in teh course of certain types
of felonies
● Model Penal Code
● Some jurisdictions that do not have true felony murder treat an underlying as a factor
aggravating the degree of murder committed.
M.P.C. § 210.2. Murder
1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
b) it is committed recklessly under circumstances manifesting extreme indifference to
the value of human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping or felonious escape.
● Recognizes a reckless form of murder
Comment
● The rule operated to impose liability for murder based on the culpability with regard to
teh death. Thus, the homicide was an offense of strict liability.
● In modern times, legislatures have created a wide range of statutory felonies, many of
which concern relatively minor misconduct not inherently dangerous to human life. That
is why there have been limitations to the felony-murder rule.

Misdemeanor or Unlawful Act Manslaughter

● Many jurisdictions provide for involuntary manslaughter liability when death results from
an unlawful act that does not satisfy the felony-murder rule.
● Could be an accidental death but strict liability for felony-murder is nonetheless applied
 ● Criminal negligence*
● Lowest level of criminal homicide offenses = misdemeanor or unlawful act manslaughter
● Does not have to be inherently dangerous
● Any unlawful act that causes death can be the basis for involuntary manslaughter

CAUSATION

● Most crimes only require a guilty hand moved by a guilty mind, but some crimes require
results. → Require a result caused by the conduct defined by the crime

A. Overview of the Elements

● 2 types of causation are required for criminal liability:
○ Actual causation / Cause-in-fact
■ But-for causation: but for the act the result would not have occurred
○ Proximate cause / Legal causation
■ Central principle = foreseeability
■ Criminal liability is limited to foreseeable harms
■ If the result was not proximately caused, it doesn’t matter what mental
state the defendant had with respect to his conduct.
● What complicates the two types of causation is that all results have multiple causes
○ Actual causation rules out possible causes
○ Proximate causes rules out causes whos results were not foreseeable

B. Actual Causation
● Any result has may causes
● Actual causation relies on our sense of the ordinary
● Ordinary events that form part of the background of daily life are merely “conditions”
rather than causes.

1. Multiple Actual Causes and Substantial Factors

● Criminal results often have multiple concurrent causes
● Doctrine of complicity: any one accomplice can be held liable for the acts of
another. This applies when more than one person causes the bad result.
● What if there are multiple, independent causes of the result?
○ Sometimes these are successive acts where one accelerates the required
results
○ Other times they are concurrent acts where each contributes to it
● General principle: An actual cause does not have to be an exclusive cause but
can be a substantial factor.
(1) Accelerating Causes
 ● An accelerating cause is an actual cause
(2) Concurrent Sufficient Causes
● Where two people act independently and either act is enough to
result in death, courts often say that each act was a “substantial
factor” in bringing about the death.
(3) Concurrent Insufficient Causes
● Where neither act alone would have been fatal, but both acts
cumulatively resulted in death. Court applies the but-for test here.

2. The Year and a Day Rule

● At common law, one could not be guilty of a homicide crime unless the victim
died within a year and a day of the homicidal act.
● Majority has abolished this rule. Others have increased the period of time,

C. PROXIMATE CAUSE
● Proximate cause can be broken by something that is not foreseeable (too remote)
○ Key is proximity
● I.e. if COD is coincidental, indirect, or abnormal
● These are the types of interventions that break the causal link

1. Unexpected Victims and Transferred Intent

2. Intervening Causes

● Intervening cause: The force or event that causes the harm to occur in the
unexpected way
● Chain of causation: A metaphorical term that refers to a sequence of causally
related actions or events. When we say that the chain of causation is broken, we
mean that we no longer consider the defendant’s earlier acts to be responsible for
the results after the break.
● Dependent intervening cause: An intervening cause that was a response to
something that the defendant did. Usually does not break the chain of causation.
● Independent intervening cause: An intervening cause that operated completely
independently of the defendant’s actions. Often breaks the chain of causation.
● Superseding cause: An intervening cause that is not only unexpected but also
sufficiently unforeseeable that the law finds the chain of causation between the
defendant’s act and the criminal result to be broken.

3. Dependent Intervening Causes

 Chapter 16: Inchoate Crimes Overview and Solicitation

A. Overview
a. Inchoate crimes = incomplete crimes – not fully completed or realized
b. 3 typical inchoate crimes:
i. Solicitation: the crime of seriously asking someone to commit a crime
ii. Conspiracy: the crime of agreeing to commit a crime or to do something
illegal
iii. Attempt: beginning to commit a crime
iv. All 3 of these are independent crimes – will occur in and of themselves
c. Will not prosecute for thinking bad thoughts
d. All inchoate crimes are specific intent crimes
e. Common law originally required that the Δ be “dangerously close” to completion
of the crime in order to have sufficient culpability to punish
B. SOLICITATION
● Solicitation means asking, inviting, requesting, commanding, or even
encouraging another to commit a crime with the intent that they do so.
● At common law, the solicited crime had to be a felony or a misdemeanor that
constituted obstruction of justice or a breach of the peace (crime of violence of
public disorder)
● Guilty hand = solicitation; Guilty mind = purpose that the crime be committed
a. A Historical Example
i. Solicitation is complete once the words leave the solicitor’s mouth
ii. Argument and a person yells “Will someone not rid me of this guy?” then
some people go and kill him thinking he wanted him dead
iii. Depends on intent
iv. Solicitation doctrine punishes people who seriously ask others to commit
a crime without respect to what does or does not happen next
b. First Amendment Limits
i. See New York v. Quentin (1968)
c. Solicitation as an Attempt?
i. Majority of jurisdictions do not consider a solicitation in and of itself to be
an attempt of the crime solicited
ii. The MPC creates wider criminal liability for solicitation
1. Applies to any crime, not just felonies or misdemeanors
2. Extended not only to solicitations to commit a crime but also to
any conduct that would constitute an attempt or make the other
person an accomplice
 3. Allows a “would-be'' solicitor to renounce it if done completely
and voluntarily. (under common law, the crime is complete once
the words leave your mouth)
d. Merger
i. To avoid punishing someone twice for what is essentially the same
conduct
ii. Solicitation merges into the completed crime if it is completed (same with
attempt)
1. Conspiracy DOES NOT MERGE

Chapter 17: Conspiracy

● Society has always feared groups who commit crimes

● By

A. The Crime is the Agreement

a. The guilty mind required is the intent to agree and the intent to achieve the object
of the agreement
b. The guilty hand required at common law is the agreement itself
c. Conspiracy is a crime in and of itself. One might also be guilty of the crime one
conspired to commit. They need to be analyzed separately
B. Policies Behind Conspiracy Doctrine
a. Crime prevention
i. Allows police to make arrests before people get close to doing something
bad
b. Special danger of group activity
i. People who commit crimes in groups are more likely to stay committed
until it is achieved
ii. A group can encourage one another, pool resources, and efficiently divide
tasks
iii. Organized crime, terrorist organizations, insurrectionary movements
c. Dangers to civil liberties?
i. Fear that it promotes guilty by association
ii. Undermines 1A right to free assembly by making it impossible to be
convicted for meeting with people the government deems to be suspicious
iii. Because it requires little to no action, it gives power to informants who
can make up any conversation
 iv. Might waste government resources by prosecuting people who never
committed an elaborate crime
C. The Elements of a Conspiracy: An Overview
A criminal conspiracy may be defined in the following way:
1. An agreement, express or implied
● Agreement may be inferred from circumstances
2. Where the fact finder must find a “communion of understanding”
3. To commit a crime–or at common law–an unlawful act
4. To which the defendant intended to agree
5. With the further intent that the object of the agreement be achieved
● Many jurisdictions and MPC also require an overt act in furtherance of the
conspiracy
D. The Guilty Hand: The Agreement
● Almost all jurisdictions today (+ MPC) limit conspiracy to agreements to commit
a crime.
● Agreement may be implied from the circumstances
○ No signed contract, handshake, express words of agreement are required
○ A mere coincidence of purpose is not enough for an agreement. There
must be a communion of purpose by which the courts mean that the
actors are mutually aware of their shared purpose
a. The Guilty Hand: Overt Act
i. Majority of common law jurisdictions + MPC require an overt act in
furtherance of the conspiracy in addition to the acts that constituted the
agreement
ii. This overt act does not have to be the beginning of an attempt to commit
the crime.
iii. It need only be performed by one member of the group and need not be a
criminal act in and of itself.
E. The Guilty Mind: Intent to Agree and Intent to Achieve
● The intent to achieve, at a minimum, means that you must have the mental state required
for the crime
● This rules out conspiracy for crimes that create liability for reckless or negligent results
● The only sorts of homicide one can conspire to commit are intentional killings, and
probably only ones that are premeditated and deliberate
a. Purposeful vs. Knowing Assistance
i. Intent can mean either purposeful or knowing behavior
ii. Since agreeing is a purposeful act, one cannot intent to agree without it
being one’s purpose ot agree
iii. More difficult to discern whether intent to achieve the object of the
agreement requires purpose or knowledge
 iv. Split among jurisdictions as to whether knowledge alone suffices for
criminal conspiracy
1. Jurisdictions that require purpose define it very closely to
knowledge + smore srt of special stake in the outcome
b. Attendant Circumstances
i. What does it mean to intend a crime be committed if the crime does not
require knowledge of all the circumstances that attend its commission?
This varies from state to state.
c. The Corrupt Motive Doctrine
i. Ignorance of the law is not an excuse, but some courts require a “corrupt
motive” for conspiracy liability.
ii. The very idea of conspiracy implies agreeing to something with an evil
purpose
iii. Difference between regulatory offenses → wrong because society has
legally prohibited them (malum prohibitum)
iv. And other offenses which are clearly understood to be wrong in and of
themselves (malum en see)
v. To be guilty of a malum prohibitum offense, jurisdictions recognizing this
doctrine require either proof of knowledge of the law to be broken, or
proof of a corrupt or evil motive
F. Liability For Other Crimes
a. Conspiracy is its own crime, but federal courts and many jurisdictions also hold a
conspirator liable for certain crimes committed as a result of the conspiracy. This
is called the Pinkerton doctrine. Under this rule, a conspirator is responsible for
crimes committed by other conspirators if
i. The crime was committed in furtherance of the conspiracy, and
ii. The crime was a foreseeable consequence of the unlawful agreement.
b. This often overlaps with ordinary complicity liability. But the pinkerton doctrine
can create liability for a crime that the conspirator did not aid or assist.
c. Most crimes committed in furtherance of a conspiracy are considered foreseeable.
d. Killing is almost always considered a foreseeable consequence of a robbery.
G. Abandoning or Withdrawing from a Conspiracy
a. Majority: Cannot undo criminal liability for conspiracy by withdrawing from the
agreement or abandoning the effort once the crime of conspiracy has been
committed.
b. However, in a jurisdiction that requires an overt act, if the overt act has not yet
been committed, you may withdraw before it is committed.
c. Withdrawal may not always eliminate past liability for conspiracy, but it will cut
off liability for future liability for crimes committed in furtherance of the
conspiracy under the Pinkerton doctrine.
 d. Withdrawal requires you to effectively communicate to all conspirators that you
are withdrawing. In most states, you do not have to report the conspiracy to the
police.
e. MPC and a small minority of jurisdictions allow withdrawal in a way to cut off
future liability and serve as a defense for the past crime of conspiracy. This
requires more than communication to co-conspirators – MPC requires you to
“thwart the success of the conspiracy.” Other jurisdictions require you to make a
timely warning to the police.
H. Duration of the Conspiracy
a. This is important for determining Pinkerton liability as well as when to begin the
statute of limitations.
b. A conspiracy ends when the goal of the conspiracy is successfully achieved.
Withdrawal from a conspiracy also ends the duration of the conspiracy for the
person withdrawing.
I. Merger
J. Unilateral vs. Bilateral Conspiracies
K. Scope of the Conspiracy
L. Model Penal Code