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Criminal Law - Outline Part 2

By Collin B. Hardee

Download the PDF version of this outline

<< Part 1 | Part 3 >>

Silent Statutes – No Mental State in Statute


LaFave Factors

  1. Legislative History/Context
  2. Guidance from other statutes
  3. Severity of punishment
  4. Seriousness of public harm statute seeks to prevent
  5. Defendant’s opportunity to ascertain the true facts
  6. Difficulty of proving mental state
  7. Number of prosecutions to be expected under statute



2.02(3) – when mens rea isn’t stated in statute, it’s satisfied if person acts w/ purposely, knowingly, or recklessly – must at least prove reckless

2.02(4) – when there is a mens rea requirement in statute it will apply to all material elements unless explicitly contrary

Strict Liability C/L

Public Welfare and traditional crimes

  • Not extreme punishment
  • Generally, involve conduct that is not morally “right”
  • Created by STATUTE


  • SL crimes are generally restricted to violations that are punishable by fines, not incarceration – public welfare crimes
  • Absolute liability

Same as C/L

CAUSATION - (causation only required for result crimes)

Cause in Fact/Actual Causation C/L

“But For” Cause – If it wasn’t for D’s voluntary act, would the social harm have occurred when it did?

  • If YES, D is NOT the but-for cause

Substantial Factor Test – Was D’s voluntary act, combined w/ other forces, a substantial factor in causing the harm?

  • If D’s conduct accelerates a death, his conduct IS a substantial factor
    • Would result have happened anyway if not for D?
    • For D to be the cause, victim must have been alive at time
    • D does not need to be sole cause

ONLY requires CAUSE IN FACT/ACTUAL CAUSE and uses same “BUT-FOR” Test as C/L


MPC only requires actual causation

Proximate Cause – Jury Decides “is It Fair to Hold D Liable?” C/L
  • Foreseeability Test – whether actor was the direct cause and whether there were any intervening actors or causes that sever the causal chain back to D
    • No intervening causes unless the cause is foreseeable or too minimal

An independent intervening cause is one that was not reasonably foreseeable or else too remote to fairly hold the defendant responsible. If an intervening cause is considered independent, then it breaks the chain of causation between the defendant's act and the victim's harm.

  • Intervening Acts: acts that can sufficiently break the chain of causation;
  • Dependent Intervening Act: where intervening actor acts b/c of a condition brought upon by D’s prior conduct – doesn’t break chain unless dependent actor was grossly negligent
  • Voluntary Intervening Act: occur where the intervening actor acts voluntarily – intentional acts ALWAYS break the chain of causation

MPC handles proximate cause within mens rea as to results

Whether the result was too distant or accidental in occurrence to have a just bearing on D’s liability or on gravity of offense

If result deviates too far from what is foreseeable, then one will be exculpated for purpose and knowledge crimes – if NOT, D will be convicted even if there is an intervening actor


Purposely/knowingly: causation not established if result was not what actor intended, UNLESS:

  • Plaintiff just a different person (TRANSFERRED INTENT)
  • Injury was less than intended

Recklessly/Negligently: causation not established if result is not within the risk the actor was or should have been aware of, unless:

  • Plaintiff just a different person (TRANSFERRED INTENT) – court will transfer intent towards attempted victim to the actual victim
  • Mistaken identity is NOT a defense
  • Injury was less than intended

Justification – conduct is criminal, but justified under circumstances either “right” or “not wrong”

  1. Necessity – defense should not be used unless it is necessary/ imminent threat / no deadly force if non-deadly will suffice
  2. Proportionality – must use force in proportion to harm threatened
  3. Reasonable Belief –
    1. Subjective – must have subjectively believed he needed to use deadly force to repel
    2. Objective – killing is justified is belief is objectively reasonable, even if mistaken
Self-Defense C/L

D, if not the aggressor, is justified in using force if:

  1. Honest/Reasonable belief of death/serious bodily injury
    1. Reasonable Person:
      1. Physical attributes
      2. Prior experience
      3. Present situation
  2. Imminent
    1. Presently Happening:
      1. Objective/Traditional: “Battered-Spouse, sleeping husband = not imminent SBI threat
      2. Subjective/Modern: imminent threat can be ongoing, likely to happen at any moment
  3. Not excessive force
    1. Only use amount of force he believes is reasonably necessary to prevent harm
    2. Deadly force may be used if deadly force is threatened/necessary to defend oneself
  4. Not Aggressor
    1. First aggressor may not assert self-defense unless he retreats and other person becomes aggressor
  5. Unable to retreat
    1. Minority view/MPC
    2. Castle Exception = D does NOT have to retreat within D’s own dwelling even if one could do so in complete safety


  • Reasonable: SD is still a defense
  • Unreasonable: judged by objective standards, SD not a defense
  • No duty to retreat
  • Perfect Self Defense:
    • Not guilty
    • All elements satisfied
  • Imperfect Self Defense:
    • Voluntary Manslaughter
    • Only satisfies 3-4 elements
    • “Battered Women’s Syndrome”

D, if not the aggressor, is justified in using (deadly) force if:

  • D honestly believes such force is immediately necessary to protect D’s person
  • Harm is unlawful

Deadly force is justified if one faces a threat of death, SBI, forcible rape, or kidnapping – a threat w/o that purpose is not deadly force, even if a weapon backs up the threat

If D knows/realizes he can be completely safe by retreating, D must retreat UNLESS in own dwelling/place of work


MPC/Modern: even an unreasonable mistake (but genuine) as to need for SD will protect D, UNLESS reckless or negligent

Defense of Others Majority/NC

D may use force in defense of another if he reasonably believed that person he assisted would be justified in using force to protect himself


D “steps into shoes” of person he defends – if that person didn’t have right to SD then neither did D

Defense of Property
  • Non-deadly force may be used to prevent wrongful entry on one’s real property or wrongful taking of property
  • Deadly force may NOT be used, except in situations involving one’s dwelling where person reasonably believes that force is necessary to prevent entry by a person who intends to commit felony
Defense of Necessity C/L and NC
  • D is justified if he reasonably believes that he is avoiding the greater evil or prevent greater harm
  • D may not have created the necessity
  • Court reluctant to allow D to take another’s life out of necessity
  • Non-human threat – natural force created necessity
  • Must not be an alternative
  • Actually avoiding greater harm
  • Harm is greater than the harm by law
  • There is no IMMEDIACY requirement
  • D may take a life if the balance of evils is positive
    • May apply to homicide
  • D’s reasonable belief must actually be true
  • Doesn’t apply if actor was reckless or negligent in bringing about the situation
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