General Outline For Final

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Outline
The Act RequirementFor a crime to occur, there must be a voluntary act or voluntary failure to act (where there is a legal duty to act) that causes social harm. A bad thought is not a basis for a crime. A. The act must be voluntaryan action that is a product of your conscious will 1. An act committed under duress is not an involuntary act, it is an actus reus that has an excuse 2. intoxication: a) involuntary intoxdoes not satisfy actus reus b) voluntarydoes satisfy actus reus 3. Committing a non-criminal act with criminal intent is not a crime. Need to define the act precisely enough in order to separate criminal behavior from noncriminal behavior. 4. If it is an involuntary action then there is no actus reus. a) Those over which the individual had no conscious control b) Three bodily movements that do not count as criminally liable (1) An act which is not a product of the actors own volition (2) The reflexive or convulsive act (i.e. seizure) (3) An act performed while unconscious or asleep (4) However, an act like a seizure can fall under actus reus if the condition was known about and no precautions were taken B. Voluntary Failure to Actmust have a legal duty to act under the circumstances 1. 5 situations in which failure to act may constitute a breach of legal duty: a) where a statute imposes a duty to care for another b) where one stands in a certain status relationship to another (1) custodial, familial c) where one has assumed a contractual duty to care for another d) where one has voluntarily assumed the care of another and so secluded the helpless person to prevent others from rendering aid. e) Where ones actions caused the peril 2. MPCa person is not guilty of a crime unless his liability is based on conduct that includes a voluntary act or the omission to perform an act which he is physically capable. 3. Criticism a) Exonerates those with moral indifference b) Utilitarian (1) Callousness of omission rule breeds contempt for criminal justice system (2) Passing such a rule may deter because criminals may anticipate intervenors 4. Defense a) Increased judicial load b) Line drawing? leads to arbitrary discretion of who to prosecute (i.e. Genovese case) c) Mens Rea proof problems
I.
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d) The guilty person is the one who injured the Victim Mens Rea: The intention to commit a criminal act. A Person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require with respect to each material element of the offense. A. Why mens rea requirement? 1. helps define more clearly the kinds of behavior society wishes to prevent 2. protects those who accidentally or innocently cause harm 3. Retributive - punishing only those that are culpable 4. Utilitarian punishes only those with culpable mind; punishing others will be wasteful 5. key words: purposefully, maliciously, knowingly, intentionally, willfully, recklessly, negligently 6. a high mens rea requirement is good because absent such a requirement, good people can be guilty of a crime by virtue of an inadvertent action. B. Common Law Mens Rea Elements 1. Intentionally: intended to commit the actus reus of the offense a) Either to specific result (i.e. kill) or specific conduct (i.e. drive) (1) it is desire to cause social harm (conscious object) OR (2) acts w/ knowledge that social harm virtually certain b/c of his conduct: knowingly (a) includes willful blindness or ostrich instruction (allows failure to take the obvious steps to confirm or dispel) (b) criticism tows the line w/ negligence can be guilty via negligence b) requires subjective awareness c) Motive: mostly considered irrelevant EXCEPT: (1) i.e. specific intent crimes requires proof of specific motive (2) claims of defense i.e. justifiable actions (3) sentencing (4) Modifies the other attendant circumstances 2. Willful: sometimes means intentional 3. Negligent & Reckless: a) Negligent [objective fault]: conduct constitutes a gross deviation from standard of care that reasonable person would have observed in the same situation factors: (Hand formula from torts) B << PL (1) Utilitarian perspectives: (a) Pro: public policy sacrifices the individual (& actor may be more careful in future) (b) Critique: cannot deter those who do not have the intention to commit the crime (2) Retributive perspectives: (a) Pro: punishing the crime itself, and those that have disregarded attendant risks are culpable culpable indifference
II.
(b) Critique: did not appreciate wrongdoing or consequences only culpable for the tort standard of negligence b) Reckless [subjective]: (1) Modern: disregarding substantial and unjustifiable risk of which he was aware 4. Malice: intentionally or recklessly causing the social harm prohibited (this is NOT the common usage) 5. Degrees of Fault/KNOWLEDGE: a) Subjective: intent to do criminal act & all elements of crime (1) Knowingly; purposefully; willfully (2) Actual intent/awareness reckless standard (a) high degree of awareness (3) i.e. first degree murder b) Objective fault: REASONABLE PERSON standard (1) Holmes: [Law] does not attempt to see men as God sees them. (2) you should have known (3) i.e. involuntary manslaughter C. Strict Liability (NO mens rea) 1. Liability w/o Fault: despite not knowing 2. does not matter whether or not you should have known mens rea is assumed 3. i.e. statutory crimes; statutory rape* (anomaly b/c all other strict liability crimes do not impose incarceration: it is malum in se & severe punishment) 1. defenses against: a) good faith mistake is NOT excuse b) only regarding actus reus component of crime 2. Arguments for: a) statutory crime NOT common law (which requires mens rea) b) legislative policy is undermined by mens rea c) penalty is usually small* d) no social stigma usually* e) standard is reasonability 3. Utilitarian justifications: a) absence of mens rea still may have desirable deterrence quality b) those choosing to engage in dangerous activities (statutorily prohibited) will act w/ greater caution c) too diffcult to measure EVERY case of criminal mens rea d) Note: strict liability is counter to the principles of RETRIBUTIVISTS 4. Public Welfare: Malum Prohibitum wrong b/c prohibited a) i.e. Commonwealth v. Koczwara (alcohol/minor license/duty) b) Authority b/c: (1) Not derived from common law (2) Single wrong can harm many social balancing utilitarian
Standard is reasonability Penalty is usually small no social stigma usually 5. Absolute Liability a) Not concerned w/ your mens rea focus on the actus rea that the action occurred b) Watch for constitutional problems 5th Amendment due process problems! 6. Vicarious Liability: strict liability may be imposed to find a supervisor responsible (very rare b/c of mens rea and actus reus)
(3) (4) (5)
Specific intent 1. An intent to bring about a specific result beyond conduct that constitutes actus reus OR aware of statutes attendant circumstance 2. Some defenses apply only to specific intent crimes a) Voluntary intoxication b) Reasonable [i.e. voting age] c) /Unreasonable mistake of fact 3. types of specific intent crimes: a) INCHOATE (solicitation, attempt, conspiracy) b) first-degree premeditated murder, c) assault (*as attempted battery) d) larceny/embezzlement e) Burglary (*best example, actus reus is breaking and entering, mens rea is intent to commit felony) f) Robbery, forgery/false pretenses C. General intent 1. intent to do the act, not to bring about the results. a) intended the act in actus reus 2. Mistake mistake must be reasonable 3. Mistake of law is not a defense 4. General intent a) Rape b) Assault c) 2d degree murder D. Transferred intent: 1. Resultant harm is similar to the intended harm. a) Victim to victimif D threw a rock at victim A and instead hit victim B, D may be charged with respect to victim B. But not if there was a legal justification for throwing the rock at victim A. Intent can be transferred if it creates the same harm that was actually intended. b) Crime to crime Generally not allowed (1) Exception - FMR E. MPC 2.02 Mens Rea Elements 1. Applied to each element of the crime 2. Purposely [subjective]
B.
Conscious object to cause such a result Aware of circumstances or believes or hopes they exist (1) Entering occupied structure to commit a felony 3. Knowingly [subjective] a) Aware that it is practically certain that conduct will produce certain result b) Aware that conduct is of that nature or that such circumstances exist (1) Knowingly receiving stolen products c) Includes willful blindness 4. Reckless [subjective] a) Conscious disregard a substantial and unjustified risk 5. Negligently [objective] a) Should have been aware of substantial and unjustifiable risk F. Mistake of Fact: It can negate liability if it shows that D didnt have required state of mind, except in cases of strict liability crimes. 1. Where mistake of fact simply changes the degree of the crime it cannot be used as a mens rea defense a) Ex: cannot say thought was stealing $95 instead of $105 as defense to lessen degree of crime from grand to petit larceny 2. Mistake must be reasonable? a) A D is not guilty of a general intent crime if his mistake of fact was reasonable, but he is guilty if his mistake is unreasonable b) Any mistake of fact, reasonable or unreasonable, is a defense to a specific intent crime. c) Strict liabilitymistake of fact is never a defense 3. MPC a) Only allows for punishment of the lower offense vs. common law of higher offense G. Mistake of Lawlack of knowledge of a law is not a defense. 1. Exceptions a) When statutes allows for itex, tax code b) Statute not reasonably available, not published c) Reasonable reliance upon statute or judicial decision that is later determined to be invalid d) Reasonable reliance upon public official whose job it is to interpret the law e) Reliance upon advice of private counsel is no defense 2. MPCa mistake of law is in fact a defense if it negates the mens rea required by the statute a) i.e., if knowledge of the law is an element of the crime, then mistake of law can be a defense 3. Rationale a) Certainty of the law harder today b/c of malum prohibitum laws b) Avoiding subjectivity in the law c) Deterring fraud d) Encouraging legal knowledge
a) b)
Policy: does this make people responsible for laws not reasonably known? Should we make a distinction between malum in se and malum prohibitum because malum prohibitum are lesser known? H. Motive vs. Intent 1. Important for three reasons a) Often needed in specific intent crimes b) Relevant for claims of defense i.e. justification c) Sentencing 2. Motive is the underlying reason why the defendant engages in criminal behavior. NOT an element of a crime. 3. A defendant may be guilty of a crime even if he has a good motive. However, her good motive may be a mitigating circumstance in sentencing. a) Nearly all modern statutory crimes explicitly require a specific mental state as an essential element b) The MPCs culpability provisions omit any reference to specific and general intent
4. 5.
The different types of Specific and General Intent o General Intent vs. Specific Intent You are going to have to figure out from context whether or not a crime is a general intent crime or a specific intent crime see page 156-157 in the book. Important readings 3 Models Model #1 o Specific Intent means that there is a mental state specified in a statute o General Intent means that no mental state is specified in a statute Model #2 o Specific higher mental states (knowing, purpose) of intent o General lower mental states (reckless, negligent) of intent Model #3 o Specific #1 If there is a mental element over and above the mental state associated with the base offense Intention to commit a future act than just an Actus Reus - IE possession with the intent to distribute. One part of the crime is the possession which has its own Actus Reus/Mens Rea and then an additional element of Mens Rea of the intent to sell o Specific #2 A special motive or purpose beyond the base crime IE assault with the intent to kill. You have a separate Actus Reus/Mens Rea based on the assault and then an additional element of Mens Rea with the intent to kill. o Specific #3 Awareness of attendant circumstances IE Sale of obscene literature to minors. You have a separate
Actus Reus/Mens Rea of having and selling obscene literature and then an additional element of Mens Rea of knowing that you are selling to a minor. o General Intent Just the Mens Rea associated with the Actus Reus, not the additional Mens Rea.
II. Omission (Negative Acts)

a. Situations in which omission may constitute breach of a legal duty (Jones v. United States): 1. Where a statute imposes a duty 2. Where one stands in a certain status relationship to another (legal relations: spousal, to children) 3. Where one has assumed a contractual duty to care for another 4. Where one has voluntarily assumed care of another and so secluded the helpless person as to prevent others from rendering aid 5. Some jurisdictions: When a person creates a risk of harm to another (hit-and-run) b. Public policy reasons for not punishing where obligation based solely on morality 1. Non-Doings (omissions) are inherently more ambiguous than wrongdoings (acts): harder to determine motives and culpability (e.g. didnt appreciate seriousness, too paralyzed with fear) 2. Difficult line-drawing problems: Who would be responsible for injury/death? All onlookers? 3. Well-meaning bystanders often make matters worse by intervening 4. Obsession with individual liberty: Prohibiting conduct compels us not to harm others v. Requiring conduct compels us to benefit others; Right to be self-interested is part of a free society? c. David Cash case - saw friend committing rape of girl in Las Vegas bathroom, but did nothing to stop d. Kitty Genovese case a woman was stabbed to death while numerous witnesses watched and failed to help. A spectators failure to assist (even to call the police) was not criminal.
E. Mens Rea: Mistakes

a. Two types: 1. Mistake of Fact: an unintentional mistake as to a key fact in the case 2. Mistake of Law: an error involving a misunderstanding or incorrect interpretation of the law b. Common Law 1. Mistake of Fact: 1. For specific intent crimes, always a defense -Mistake of fact negates specific-intent portion of the crime = lacks the intent required in the definition of the offense
2. For general intent crimes, a defense ONLY if mistaken belief was reasonable -If reasonable: Ds state of mind not culpable his belief was one that a reasonable mind might have harbored -If unreasonable: negligent? 3. Criticism: Can punish a negligent wrongdoer as if he were guilty of intentional wrongdoer 2. Mistake of Law: never a defense -Typically, no mens rea capable of being negated by an actors ignorance or mistake of law c. MPC 1. Mistake of Fact (2.04(1)): always a defense even if unreasonable so long as it negates required mens rea element 2. Mistake of Law: is a defense when (2.04(3)): (1) The statute is not known to the actor (2) D acts in reasonable reliance on an official statement of the law (3) Mistake negates mens rea for the crime (2.04(1))
II.
Homicide A. Common Law: Murder and Manslaughter 1. Murder killing of a human by another with malice aforethought a) Intention to kill b) Intention to inflict grievous bodily harm c) Reckless disregard for human life d) Felony murder rule 2. Manslaughter murder without malice or w/o justification or excuse a) Voluntary manslaughter [heat of passion], b) Involuntary [objective] c) Misdemeanor manslaughter [not covered by FMR] B. Intentional Murder = first degree and voluntary manslaughter 1. First Degree Murder a) Premeditated unlawful killing of a human being by another human being with malice aforethought. b) Intent to kill involves subjective fault (1) Natural and Porbably consequence if natural consequence of s action is death then intent is met (2) Use of deadly weapon further helps intent c) Willful, Deliberate, Premeditated Killings (1) Willful specific intent to kill (2) Deliberate to measure and evaluate major facets of choice or problem (a) Cool purpose free from excitement or passion
Quality of thought process (3) Premeditated the defendant must have formed the intent before the attack. (a) Some courts say that premeditation can occur in an instant, others have an extended view of this [minority]. (4) Look at three categories when evaluating premeditation and deliberation (a) Conduct prior to the killing that would indicate he was planning on killing the particular victim (b) Behavior towards the victim from which the jury could reasonably infer a motive to kill (c) The manner of killing and condition of the body (d) Need a combination of (a or b) and (c) in order to satisfy the test d) Unlawfulmust know its an unlawful act. Factual mistake may serve as a defense or may serve as a finding for charging with less than this degree e) Human beingD must be aware that the victim is a human being. f) Malice aforethought g) Diminished capacity may be a defense h) Intoxication is not a defense except in wilful, deliberate, premeditated killings 2. Voluntary Manslaughter a) Intentional homicide committed in sudden heat of passion as the result of adequate provocation b) Elements of Defense (1) State of passion (a) Must be in passion at the moment of the homicide (2) Adequate Provocation (a) Common Law [objective] the defendants act must be in response to a provocation that would case a reasonable man to lose his self-control. (b) Words alone are not enough (c) Modern trend is to look at it more contextuallyis this approach too subjective? (3) Cooling off time (a) Determined by the jury c) MPC approach (1) homicide which would otherwise be murder but is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. (a) The trier of fact must evaluate the actors conduct under the circumstances that the actor believed to existwas the actors loss of self-control such that it would arouse sympathy in the ordinary citizen? [subjective] (2) 5 key differences [BROADER]:
(b)
no specific act of provocation is necessary all that is needed is reasonable explanation or excuse (b) more subjective (c) no cooling time limitation (d) words alone may be sufficient under certain circumstances (e) diminished capacity may be considered (if can provide the basis for extreme emotional disturbance)
(a) C.
Unintentional Homicide 1. Second-Degree Murder [subjective] a) Depraved heart murderreckless activity with the high probability of death or serious injury. (1) Ex: discharging a firearm in a crowded area. (2) D must have had an actual SUBJECTIVE awareness of the danger. b) When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits the wickedness of disposition and cruelty that constitute malice (ex: playing Russian Roulette, reckless driving, vicious animals) c) A combination objective/subjective standard: (1) First have to objectively ask if this is a reckless or grossly negligent act? The court will say a reasonably prudent person should know that this is a reckless act. (2) Then the subjective standard is if the D was actually aware of the risk that he was posing. 2. Involuntary Manslaughter [objective standard] a) Unintentional killing involving recklessness or gross negligence. b) Gross deviation from the standard of care that reasonable person would exercise in the same situation c) An objective standard you are required to follow regardless of what you thought might happen (1) need not know of the risk, only that he was criminally negligent of it. 3. Misdemeanor Manslaughter a) Accidental homicide during commission of unlawful act not amounting to felony (for FMR) b) Various interpretations including: (1) Only inherently dangerous misdemeanors (2) Only malum prohibitum (3) All misdemeanors Trying to figure out where an offense falls on the murder/manslaughter line 1. Was homicide intentional? a) If Yes [LOOK AT ADEQUATE PROVOCATION] (1) 1st degree Murder (2) Voluntary Manslaughter
D.
b)
If No [LOOK AT SUBJECTIVE AWARNENESS] (1) 2d degree Murder (2) Involuntary Murder
Lesser Included Offenses 1. If there was sufficient evidence to convict the defendant of a higher offense, then the jury may convict the person of the lesser-included offense. 2. Useful tool for plea bargaining F. Felony MurderD intends to commit a felony (arson, burglary, kidnapping, rape, armed robbery) and a victim is killed in the course of this activity. 1. Issue is of the predicate felony; if no felony, then that is a defense to felony murder. a) Intent to commit the felony constitutes the implied malice for CL murder b) This is important when the person charged did not directly kill, or intend to kill, the victim 2. Rationale a) Deterrence enhanced risk causes felon to be more careful, may commit felony but in manner less likely to result in death BUT HOW DO YOU DETER ANUNINTENDED ACT? b) Reaffirms Sanctity of human life: (1) whether it is fair to punishment for social harm of death c) Transferred Intent: therefore not strict liability, but intent (1) usually no transfer from one crime to another, thus could be criticized as abuse of doctrine d) Easing Prosecutors Burden of Proof 3. Limits a) Inherently dangerous felony (1) Abstract approach is felony inherently dangerous (doesnt look at facts); OR (2) Looks at facts and circumstances to the particular case b) Merger limitation (1) Only if predicate felony is independent/collateral to the homicide (a) i.e. Assault merges with the murder (2) Policy: prevents collapsing all homicide grades into felony murder. Without the independent felony limitation, any manslaughter would automatically become murder b/c a death occurred during the commission of a felony, namely the crime of manslaughter. Prevent expanding felony murder to cover far more situations than intended by legislature. (3) On the other hand, this can allow people who are naturally violent to get off on second-degree and those that are dumb robbers on first degree. This may be rooted in the notion that bank robbers, etc. are career criminals and bad actors anyway.
E.
Res Gestae Requirement killing occurs during commission or attempted commission of felony (1) Begins at attempt and ends when all elements of felony are completed (a) Temporal and geographic (2) But for requirement 4. Killing by a non-felon a) Agency doctrine [use - majority] (1) Felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the D or those associated with him in the unlawful enterprise. (2) A felon is only responsible for the acts of his co-felons during the predicate felony, and not the acts of police, victims or bystanders b) Proximate cause view [dont use minority] (1) The felon is liable for any death proximately resulting form the felony, whether the shooter is a felon or a third party. (2) The felon sets in motion chain of events, which are or should be within his contemplation. (3) Some states include the innocent killing of a co-felon even if killing was justified Death of co-felona majority of states will hold a criminal responsible under felony-murder for accidentally shooting a co-felon during a predicate felon 1. Deterrence a. Views and Critique (1) FMR intended to deter accidental & negligent killings by felons Can deter if consequences are adequately committed People more aware of outlines of FMR than other criminal concepts May deter intentional killings as well BUT: 1. Cannot deter unintended acts 2. Few felons know that FMR imposes SL or that harm will result from committing felony (2) FMR intended to deter underlying felonies themselves BUT: 1. Doubtful that serious crimes can be deterred by punishment 2. Felonies are more effectively deterred by increasing the punishment for the actions that the felon actually has control over 3. Deterrence wont work if felons dont know they could be punished for murder.
c)
2. Transferred Intent a. Views and Critique (1) Intent to commit felony transferred to act of killing in order to find culpability for homicide BUT: 1. Mental states of underlying felonies are not the same as mental state for murder
2. Intent to commit a felony equated w/ malice aforethought, premeditation and deliberation, which require proof of particular acts and thoughts (bypassing proof) 3. Retribution a. Views and Critique (1) Felon exhibited an evil mind in committing the felony where a killing occurred One who does bad acts cannot complain about being punished for their consequences, no how unexpected Focused on resulting harm, not on actors mental state/intentions BUT: 1. Resulting harm rule is old and doesnt fit with progressive, evolved views of justice that a person should be punished based on their mental culpability 2. Eliminates mens rea element; SL 4. Other Justifications for FMR 1. Proportionality FMR is justified because it focuses on the results of the crime, just as the grading distinctions between murder and attempted murder do Murder and attempted murder have the same required mental state, but are punished differently based on the results of the act. FMR reflects societal judgment that an intentionally committed act that causes death is more serious than an identical act that does not 2. Condemnation Need to express societal outrage Reinforces reverence for human life Expression of solidarity w/ victims of crime Provides convicted D with a means by which he can repay his debt to society 3. Ease of Proving the Mental State FMR makes it much easier to prove the mental state of homicides because it is much easier to prove the mens rea for felonies than for murders 4. Optimal Allocation of Criminal Justice Resources FMR clearly defines offense, simplifies task of judge and jury w/ respect to questions of law and fact, promotes efficient administration of justice 5. Minimization of Utility of Perjury Some crimes not intrinsically harmful, D might attempt to defend by perjury 6. Limitations on FMR
A. The Inherently Dangerous Felony Limitation: Only an underlying felony that is inherently dangerous to human life will trigger the FMR (precludes least serious felonies from FMR) a. Rationale: Purpose of FMR is to deter felons from accidentally killing during their felonies but cant be careful if they have no idea that their felony is dangerous or that death could result B. The Independent Felony (or Merger) Limitation: If underlying felony is an integral part of homicide itself, FMR not applied (precludes some of the most serious felonies from FMR) a. Rationale: 1. In most killings, some kind of felonious assault involved, and if this were an appropriate underlying felony for FMR, then almost all homicides would be murder w/o having to prove mens rea. W/o limitation, FMR would remove discretion to grade punishment BUT: Purpose of FMR (to deter felons from accidentally killing during their felonies) would not be served here b/c if your purpose is to kill someone, you cant kill carefully to avoid killing C. Killings in the Perpetration or in Furtherance of a Felony: FMR limited in most J/D to killings done by the perpetrator or an accomplice that occur in the furtherance of the felony a. Agency Approach: FMR does not apply if the person who directly causes death is a non-felon Acts of primary party are imputed to an accomplice but if primary party was not the person w/ whom she was an accomplice, not possible to impute acts to accomplice b. Proximate Causation Approach: Felon responsible under FMR for a killing by a non-felon if the felon set in motion the acts which resulted in the victims death Should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony
IV. Homicide
A. Introduction
a. Common law: Murder is the unlawful killing of another w/ malice aforethought 1. Malice aforethought: 1. Intent to kill a. Intentional or knowing 2. Intent to cause grievous bodily harm a. Intentional or knowing 3. Unintentional under circumstances evincing a depraved mind or abandoned and malignant heart a. Extreme recklessness 4. Intent to commit a felony a. Strict liability for homicide committed during the commission of a felony 5. Later added: intent to oppose lawful arrest
1. Intentional Killings
A. Degrees of Murder: Deliberation-Premeditation Formula

a. Premeditate: quantity of time that a person puts into formulating design b. Deliberate: quality of thought processes c. Under MPC MPC rejects degrees of murder Premise underlying premeditation formula: that the person who plans ahead is worse than the person who kills on sudden impulse, does not survive analysis. Sometimes unpremeditated more diabolically cruel and ferocious
B. Manslaughter: Heat of Passion Killings

1. Common Law: at common law, manslaughter was an intentional killing that was from murder by adequate provocation a. Manslaughter: unlawful killing of another w/o malice 1. Voluntary manslaughter: Committed in sudden heat of passion upon adequate provocation: a) Catching spouse in adultery or Check for cooling off time! b) confronted w/ deadly force (words alone DO NOT constitute adequate provocation) 2. MPC: 210.3 1. recklessly OR 2. under influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. Reasonableness will consider actors situation. 3. Difference between CL and MPC: Under EED: 1. Specific provocative act is NOT required to trigger EED defense (simply must prove that homicide occurred as a result of EED for which there is reasonable explanation or excuse) 2. Belief may be incorrect 3. Words alone CAN constitute adequate provocation 4. No rigid cooling-off rule 2. Justification for Manslaughter/Murder Distinction Murder/Manslaughter distinctions are based on retributive justifications. a. Retribution v. Utilitarianism Retribution assumes that a person who is adequately provoked is less morally blameworthy than a person who intentionally kills without provocation. Utilitarians would probably want more punishment for provoked killers because they might feel that they are more dangerous and need further specific deterrence, incapacitation, etc.
b. Justification or Excuse? most people think the provocation partial defense is based on excuse rather than justification. (1) Justification focuses on the act; justification constitutes acts that we approve of like self-defense killings. The justification argument for provoked killings is based on the common law view that the victims had done something unlawful (2) Excuse focuses on the actor; excuse is used for conduct that we do not approve of but we excuse because the actor is less morally blameworthy Dressler gives three reasons that provocation is based on excuse: 1. Person lacks reason (mens rea element (intent) is negated) 2. It is involuntary (actor does not have enough time to think about his actions) 3. Concession to human weakness (sometimes good people do bad things when provoked) 3. Modern Trend adequate provocation is a question for the jury and the objective, reasonable person standard is used.
Reasonable Person Standard Must Decide:

1. Was the person provoked? 2. Would a reasonable person have reacted in the same way a. Purely Objective Standard The purely objective standard looks at a reasonable person in the abstract. No personal characteristics of D are considered. 1. In favor: Standard applies to everyone a. Better predictability b. People should be deterred from killing c. Fair and clear: hold everyone to same minimum standard; if you make it subjective, then holding some people to lower standard b. Semi-Objective Standard (Camplin) - The semi-objective standard looks at a reasonable person with Ds physical characteristics (e.g. age, gender) and any other characteristics that may affect the gravity of the provocation. 1. In favor: a. Just to consider their particular circumstances, unfair to expect people to respond differently than what people in their circumstances would consider reasonable b. Purpose of manslaughter defense is to discriminate between those who should be
punished less if adequately provoked then it matters why they kill c. Paradox: cant apply objectivity to killers b/c reasonable people would not kill e. Should be allowed to mitigate, exercise leniency
2. Reckless and Negligent Killings (Unjustified Risk-Taking)

A. 4 legal possibilites when someone unintentionally kills 1. No Liability 2. Civil Liability 3. Manslaughter (Involuntary) 4. Murder (2nd Degree) B. Common law: Involuntary manslaughter: In the commission of an unlawful act not amounting to a felony, or in the commission in unlawful manner, or w/o due caution and circumspection, of a lawful act which might produce death 1) Committed negligently 2) Committing a crime that was not a felony and in committing that crime, caused a death (if felony, then yeah, murder) C. MPC: If no express or implied malice, manslaughter
A.
Death Penalty 1. Policy Considerations: a) In favor: (1) Deterrence (2) Retributionresponsible for actions; accountable (3) There are procedural protections b) Against (1) Discriminatory administrationinequality in applying (a) McCleskey Black man is more likely to get death penalty (i) Court ruled needed specific discrimination in s case not in general (2) Arbitrariness (3) Errorpossibility that an innocent person will be executed (4) Deterrencehard to determine if it actually deters (5) Cheaper to keep people in prison than to kill them 2. Constitutionality a) Mandatory death penalty is unconstitutional b) Guided discretion statutesprovide aggravating and mitigating factors are constitutional (Gregg v. Georgia)
The death penalty is not constitutional for rape casesit is grossly disproportionate and excessive (Coker v. Georgia) 3. Death Penalty Procedures a) Bifurcated system: (1) Guilt or innocent phase; then penalty phase b) Unconstitutional for sentencer to not hear possible mitigating factors (Lockett v. Ohio) (1) Age (2) Mental condition (3) Severe emotional disturbance (4) Turbulent family history (5) Prior clean record (6) Minor role in crime c) Aggravating circumstances (1) Killing for pecuniary gain (2) Killing a police officer or prison guard (3) Killing in order to avoid arrest (4) A history of violence d) Automatic appeal to the states highest court
c)
V. Death As Punishment
At common law, there was a mandatory death sentence on all convicted murderers.
I. The Constitutional Debate

A. 8th Amendment prohibits cruel and unusual punishment 1. Prohibits punishment that causes wanton infliction of pain 2. Prohibits punishment that is grossly out of proportion B. 14th Amendment ensures due process and equal protection under the law D. MPC 210.6 Regulations on when the Jury can give DP 1. Bifurcated Hearing Required MPC requires a separate hearing to determine sentencing in possible DP cases. 2. Aggravating Circumstances 210.6(3) a. Murder committed by a convict b. Criminal record of capital felonies c. More than one murder was committed at the time d. Murder created a great risk of death e. Murder was committed w/ a felony f. Murder of a judicial officer g. Murder for $ h. Murder was especially heinous 3. Mitigating Circumstances 210.6(4) a. No Criminal record b. Extreme mental or emotional disturbance
c. Victim was involved in the homicidal act d. D believed there was a moral justification e. D was an accomplice an did not pull the trigger f. D acted under duress or domination of another person g. Ds capacity to appreciate wrongfulness was impaired by mental disease or intox h. D was young III. The Policy Debate (abolitionists: against DP; retentionalists: for DP) A. Deterrence a. Abolitionist DP does nothing more to deter murder than life in prison does, and the brutalization thesis says in some cases b/c it will increase the number of murders among people who are psychologically ready to kill b/c there is so much notoriety around DP trials b. Retentionist Ehrlich study showed that each additional execution might have saved 8 lives B. Retribution/Sanctity of Life a. Abolitionist DP cheapens life and should be abolished. Killing the murderer cannot help the victim. b. Retentionist Punishment must be in proportion to the crime and therefore a person who kills does not deserve to live. DP is necessary to uphold the sanctity of life. C. Error and Irrevocability a. Abolitionist There is no margin for error, if you kill an innocent person the error cannot be corrected. It is morally preferable to abolish the DP so no innocent people are killed even if the result is that many murderers do not get the DP. Many errors: poor representation by defense counsel, judicial error, prosecutorial or police misconduct. b. Retentionist The risk of executing an innocent person does not outweigh the benefits of the DP. We build highways knowing that innocent lives will be lost as a result but the benefits of public roads outweigh the drawbacks. D. Discriminatory Administration a. Abolitionist The amount of discretion that judges and jurors have leads to discriminatory administration of the DP. Some studies have shown that race of the criminal, and more importantly, the race of the victim, play a large role in who gets DP. (See McCleskey) b. Retentionist Scalia argues that even though likelihood of discriminatory administration, this could happen with any form of punishment and it is not enough of a reason to abolish DP
III.
Rape
Statutory Rapea strict liability crime. Sexual intercourse with a child below the age of consent. If a girl is below the age of consent it is determined that it is impossible for her to give consent. 1. Even if the female willingly participated, the consent is irrelevant 2. Mistake of age is no defense since its a strict liability crime a) MPC would allow a reasonable mistake of age defense 3. Policy Problems a) Arbitrary age of consent (1) Possibly rests on outdated community standards (a) Today: explained as an attempt to protect a girl or young woman against her own immaturity (b) Tradition: originated to conserve girls eligibility for marriage and value to her father b) Male only? Should it be gender neutral? 4. Sentencing can mitigate a) Even though mistake of fact cannot be a defensea reasonable mistake of fact and the precociousness of the female can be used as mitigating factors for the sentencing. B. Forcible Rape 1. COMMON LAW [USE] a) Unlawful sexual intercourse with a woman against her will by force or threat of immediate force. 2. Mens Rea (did D believe it was against her will?) a) At common law and in every American jurisdiction, rape is a general intent crime as opposed to a specific intent crime [objective] (1) General intent crime: there has to be an intention to do the action, (a) Morally blameworthy state of mind regarding Vs lack of consent (2) Defense: (a) Reasonable and honest belief that victim was consenting (b) Unreasonable belief = Reckless disregard for consent (i) a reasonable person should have recognized that consent was not present under the circumstances (3) Lack of resistance or objection allows for reasonable belief of consent 3. Actus Reusforcible intercourse against her will. Force and lack of consent a) Against her will b) By Force or threat of immediate force (1) Under Common Law: Resistance must be shown (a) Traditionally the female must physically resist the male (b) Usually the greater force/threat, the less resistance required (2) Modern trend is to reduce the resistance requirement (a) Victims often freeze and become helpless (b) Endangers the Victims life
A.
Force can exist without violence and be substituted with fear (a) If s acts and threats cause reasonable fear and apprehension due to the threat of violent harm then it is the equivalent of force [which leads to non-resistance] (b) The victims fear must be reasonable, based on an objective standard. (c) It is up to the jury to determine how reasonable the victims fear was, whether she did resist, or had an explanation why she didnt resist. (d) Unreasonable fear OK if takes advantage of the unreasonable fear (4) Force can exist without violence and submission does not necessarily imply consent [State v. Rusk] 4. Consent by Fraud a) Fraud in the factum she consents to one thing and something else occurs that she did not consent to. Not a valid consent and considered rape. b) Fraud in the inducement not rape. V has consented to sex even if there are broken promises. As effective as any other consent. 5. Marital rape a) Traditional common law is that a husband who has forced his wife to have sex is not guilty of rape b) Modern trendto reject the marital immunity rule, though the MPC retains it c) Forcible rape can be convicted even if co-habitating d) Separate or living apartmarital exemption does not apply 6. Policy issues surrounding rape a) Underreported, hidden rape b) Modern view: rape is a crime of violence and privacy/autonomy. Domination by male. c) Society views on rapestranger v. acquaintance d) Not placing burden on the Victim 7. Statutory changes a) removal of force requirement, rape of wife, homosexual rape, rape of men 8. Intoxication is not a defense because use objective standardwould a reasonable person believe there was consent? [Not a reasonable person who was intoxicated]. If the courts allowed this defense, the crime would become one of specific intent rather than general intent. 9. MPC approach [DONT USE] --intercourse where D compels victim to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.doesnt include consent, resistance, or fear of having to be reasonable
(3)
III. Rape
A. Introduction:
Rape statutes, p. 384

a) 2 feminist perspectives: 1) Constrain exercise of male sexual autonomy to extent necessary to secure sexual autonomy of women 2) Rape laws are mechanism for sustaining male dominance of women, allow for justified rape to occur 1. How Much Force? Resistance Requirement a. FOR resistance requirement - Resistance is important b/c it is: 1. Evidence of force 2. Evidence of non-consent b. AGAINST resistance requirement 1. More likely to put victim in a position of danger (encourage resistance injury/death) 2. Wrong to excuse assailant on the ground that his victim failed to protect herself w/ the dedication and intensity that a court might expect of a reasonable person in her situation c. MPC (213.1(1)) Guilty of rape if: a) He compels her to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping b) He has impaired her power to consent by giving her drugs, intoxicants, or other means of preventing resistance w/o her knowledge c) The female is unconscious d) The female is < 10 years old Omits element of lack of consent, silent regarding resistance, but doesnt mean irrelevant 2. No (or the absence of yes) = Force?
C. Mens Rea
a. Under MPC, no stated level of culpability for rape so need only purpose, knowledge, or recklessness
D. Rape by Fraud or Non-Physical Threats

1. Fraud in the factum: Deception causes a misunderstanding as to the fact itself No legally-recognized consent b/c what happened is not that for which consent was given D would be guilty of rape 2. Fraud in the inducement: Deception designed to induce consent Legally recognized consent D would not be guilty of rape, defense
D. Proving Rape
A. Federal Rules of Evidence 1. 401: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination more probable or less probable than it would be w/o the evidence 2. 403: Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice 3. 3 possibilities: 1) Evidence is relevant and admissible 2) Evidence is irrelevant and inadmissible 3) Evidence is relevant but inadmissible B. Under MPC: a. 1st degree felony: 10 - life, 2nd degree felony: 5 - 10 C. Rape shield laws designed to protect victims from disclosure of past sexual acts a. Policy rationale: 1. Prevents D from harassing and humiliating complainant w/ evidence of reputation/chastity 2. Type of evidence has no bearing on whether complainant consented to sexual conduct w/ D at the time in question 3. Keeps jury focused only on issues relevant to case at hand 4. Promotes effective law enforcement b/c victims more willing to come forward w/o worrying that their sexual history will be disclosed b. May bring evidence of prior consensual sex if: 1. Evidence shows a complainants unique pattern of conduct similar to pattern of case at hand 2. Complainant may be biased or have a motive to fabricate charges Balance btwn Ds 6th Amendment rights (interest in confronting his accuser) and prejudice to P
IV. Justification: the act is justified because the person is privileged to commit the crimeobjectively right A. A justified acts indicates that the conduct is not wrongful B. This is different than excusesa D may be excused because of the individuals mental condition or because of duress, diminished capacity, etc. but the act is not justified. 1. The D did the wrong thing but the law provides an excuse 2. An excuse concedes the wrongfulness of the act, but asserts that the actor should not be punished. C. Successful defenses of justification and excuse both end in acquittal V.
A. Justification
I. Robinsons categorization of defenses (modified): 1. Failure of proof: all elements of the offense charged cannot be proven
2. Offense Modifications: actor has satisfied all elements of offense charged but has not in fact caused the harm or evil sought to be prevented by the statute defining the offense 3. Justifications: harm caused by justified behavior < need to avoid an even greater harm or furtherance of a greater societal interest negates social harm of an offense a. All have: Triggering conditions: circumstances that must exist before an actor will be eligible to act under a justification] 1. Necessity component: act only when and to the extent necessary to protect or further the interest at stake 2. Proportionality component: harm caused must be proportional to threat 3. Reasonable belief component: subjectively believes and has objectively reasonable grounds for believing that such force is necessary to repel an imminent, unlawful attack b. Principles of justification: 1. Public benefit theory: act performed benefits society (Utilitarian) 2. Moral forfeiture theory: people possess certain moral rights or interest that society recognizes through its criminal laws but which may be forfeited. 3. Moral rights theory: provides the actor w/ an affirmative right to protect her moral interest 4. Superior Interest / Lesser harm theory: conduct is authorized when the interest of D outweighs those of the person she harms (Utilitarian) 4. Excuses: actor is excused because conditions suggest that the actor is not responsible for his deed negates moral blameworthiness of the actor for causing the harm 5. Nonexculpatory Public Policy Defenses: purely public policy arguments e.g. SOL, diplomatic immunity, etc. ExcuseD may be excused from punishment because of the individuals mental condition or situational involuntariness, but the act is not justified. The D did the wrong thing but the law provides an excuse.
D. Excuse
a. An excuse defense: Although actor has harmed society, she should not be blamed or punished for causing that harm. To blame a person is to express a moral criticism, and if the persons action does not deserve criticism, blaming him is a kind of falsehood, and is, to the extent the person is injured by being blamed, unjust to him. Blame and punishment give expression to the concept of personal responsibility which is a central feature of our moral culture. b. Deterrence Theory: Excuses identify circumstances in which conduct is undeterrable Critique: Punishment may deter misconduct by normal persons who might otherwise believe that they could fraudulently convince a jury of their undeterrability c. Causation Theory: Person should not be blame for her conduct if caused by factors outside her control. Critique: Could always blame conduct on genetic or environmental factors d. Character Theory: Excuses should be recognized in those circumstances in which bad character cannot be inferred from offenders wrongful conduct -Critique: 1. Court would need to look at a persons entire life history 2. Does not explain why we DO punish people of GOOD character who commit out-of-character offenses
3. People may not always be responsible for their behavior e. Free Choice /Personhood Theory: May be blamed if but only if she had the capacity and fair opportunity to choose whether to violate moral/legal norms of society - Critique: Free choice is defined in terms actors capacity and opportunity at the moment of the criminal act to obey the law, so morally significant events arising earlier are excluded e.g. did not have fair opportunity to avoid the conditions that hardened her character
A.
Self-defense: CL: can only use deadly force to protect your life. An objective approach 1. Non-deadly forceas a general rule, an individual who is without fault may use such force as reasonably appears necessary to protect herself 2. Deadly force a) Imminence discourages vigilantism. Imminence becomes the line between self-defense as a necessity that one is in immediate peril with no alternative, and self help. Absent imminence we have self help. (1) Objective standard [test]did D reasonably fear he was in imminent peril of death or physical harm? Ds fear must be honest and reasonable in order to make out a claim of self-defense. The perceived threat to D was unlawful and immediate; D reacted with proportional response. b) Retaliation is not permitted c) A D is not entitled to use self defense if he was the initial aggressor. d) MPCsubjective approach (1) A D charged with murder or attempted murder need only show that he believed that the use of deadly force was immediately necessary to protect himself against death, serious injury, kidnapping, or forcible sexual intercourseeven if the belief is unreasonable. (2) Limitations of this approach: (a) A D who is reckless or negligent in having such a belief cannot use this defense (b) A D who honestly but unreasonably believed that it was necessary to use defensive force would be convicted if negligent homicide instead of murder (c) Might allow Ds to get off easier (d) Not going to deter people who genuinely believe that the force is necessary. e) Retreatmajority rule is there is no duty to retreat (1) Not necessary to retreat if: (a) In you own home (b) Police officers have no duty to retreat (c) If you are the victim of rape or robbery (2) At common law there was a requirement to retreat but not from your home (a) retreat to the wall (3) the MPC says before using deadly force one has to retreat if she can do so. (?)
Other uses of defensive force: defense of home and property (1) Most courts prohibit the use of deadly force solely to protect property (2) Greater leeway is allowed when deadly force is used to prevent unlawful entry into the home (3) A person is justified in the use of deadly force to protect a habitation only when the inhabitant reasonably believes entry is made for the purpose of committing a felony (4) MPC permits the use of nondeadly force if one believes that it is immediately necessary to protect ones home or property, so long as (1) one first asks the other person to stop interfering with the property in cases where it is reasonable to do so, and (2) one does not se force that he knows will expose a trespasser to substantial danger of serious bodily harm. (5) MPC permits homeowners to use deadly force if they believe that an intruder is attempting to enter their home unlawfully in order to dispossess them of the home and has no claim of right to its possession. (6) MPC says that property owners may use deadly force if they believe that someone is attempting to commit arson, burglary, robbery, or some other felony involving the theft or destruction of property, so long as (1) that person used or threatened deadly force, and (2) using nondeadly force to prevent the crime would create a substantial danger of serous bodily harm. (7) MPC recognizes castle doctrine as do most states g) Defense of third persons (1) Reasonable relief jurisdiction [USE] one may use force or deadly force if none has a reasonable belief that one is coming to the aid of the nonaggressor. Such a reasonable belief would be a complete defense. Majority view. (2) Shoes jurisdictionminority viewone steps into the shoes of the person one comes to rescue. If the individual had the right to self-defense then you may use it. (a) Then if have chosen wrong and actually aiding the aggressor, then have no defense. No matter how reasonable belief was that coming to aid of victim, you cannot assert it as a defense. h) Battered Womens Syndrome (1) As an objective testdid it reasonably appear that individual was under threat of imminent harm. Court will look at imminence factor + existence of alternatives (2) Issue of imminenceshould or should there not be a relaxation of traditional imminence requirement? Self-defense vs. self-help (3) Entering realm of excuse (a) Objectivethere was a threat to her life (b) Not accepted as an excuse
f)
Hard to make a case of imminent dangershould we adhere? There is a dilemma because it is often said that it is a continuing threat to the woman, but if a woman kills her husband while he sleeps because he batters her, many courts hold that the imminence was lacking and will convict (dont want to erase deterrence and encourage self help). Social policy might dictate the opposite in that the woman was always under the threat and was under the mental state that she was trapped. (a) These approaches are either objective or subjective. The subjective one is closer to excuse than justification. Have to draw the line, though, so that totally unreasonable fears cannot become basis for defense
(4)
Necessityif the harm which will result from compliance with the law is greater than that which will result from violation of it, he is by virtue of the defense of necessity; justified in violating the law. The test is objectivea good faith is insufficient 1. A weighing of evils 2. Can only be used in emergency situations. 3. Cannot be used as a protest against general political or social policies with which you might disagree. There you have to resort to the legislative or legal process a) Legislative intentthat the legislature would have created an exception if in defining the defense they had seen the circumstances facing the D b) Moral intent of right and wrongconduct that is socially beneficial is by nature not criminal and therefore ought not be punished. 4. D cannot be at faultmust be without blame in developing the situation 5. Exception for intentional homicide as well. 6. MPC recognizes the necessity defense when the D honestly believes that committing a crime is necessary to avoid a greater evil. Belief does not have to be reasonable (subjective approach). a) Unavailable to D charged with crime requiring mens rea of only recklessness or negligence if D was reckless or negligent in bringing it about. b) Denies defense if the issue of competing values has been previously foreclosed by legislative choice c) Doesnt preclude murder Ds from raising a necessity defense but provides that each life must be valued equally in determining whether the D avoided the greater evil. 7. Imminence requirement a) Not in the MPC, but most statutes require imminence. 8. Legal alternative a) No defense of necessity if the D had a legal way to end the threat 9. If prisoner escapes from jail, a limited defense of necessity available if: a) The prisoner if faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future
B.
There is no time for a complaint to the authorities or there is a history of futile complaints c) There is no time or opportunity to resort to the courts d) There is no evidence of force or violence towards prison personnel or other innocent persons in the escape (1) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.
b)
C. Necessity
a. Common Law Subjective component
b. MPC 3.02 To be justifiable: (1) Actor must believe conduct is necessary to avoid or harm to himself, (a) Harm or evil sought to be avoided by such conduct > harm or evil sought to be prevented by the law defining the offense charged (Balance of evils is an issue for determination by the court or jury) (b) Code nor other law defining the offense provides exceptions or defenses dealing w/ situation (c) Legislative purpose to exclude justification claimed does not otherwise plainly appear (2) When actor was reckless or negligent in bringing about situation OR in appraising the necessity for his conduct, justification unavailable for any offense for which recklessness or negligence suffices to culpability
A.
Duress Elements: a) Another person threatens to kill or seriously injure the D or a third party (close relative) b) The actor reasonably believed the threat was genuine c) The threat was present, imminent, and impending at the time of the criminal act d) There was no reasonable escape from the threat except through compliance with the demands of the coercer e) The actor was not at fault in exposing herself to the threat 2. State of mind of D = extreme circumstancesno applicable faculties as a result 3. the coercion or duress must be present, imminent (unless there is no reasonable way to get out), impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. 4. duress can be a defense to any offense except murder or voluntary manslaughter 5. The new majority is not to look at the issue of duress in terms of absolute right and wrong but more in terms of would a reasonable person have been able to resist this kind of pressure. If not, then it might provide an excuse.
1.
The majority view holds that a crime committed under duress is a voluntary act because the D makes a choice to violate the law, even though that choice is compelled. Person satisfied the actus reus but has a mens rea defense. 7. the crime committed under duress is not necessarily the lesser evil. (Differs from necessity) a) the crime is excused because the D is considered less culpable and because society sympathizes with her predicament even though it doesnt condone it. 8. MPC a) Affords duress defense in cases where D was coerced to commit a crime by the use or threat of unlawful force against his person or the person of another that a person of reasonable firmness in his situation would have been unable to resist. b) Requires no threat of physical injury c) Does not limit the defense to cases involving an imminent threat of death or serious bodily injury d) Does not foreclose the defense in murder cases e) Defense is unavailable if D recklessly places himself in a situation in which it was probable that he would be subjected to duress 9. Traditional common law view is that duress and necessity are simply variations of the same defense, depending on the source of pressure confronting the D. 10. MPC says that if D does choose the lesser evil, it considers the act justified regardless of the source of the pressure because there is no reason why the necessity defense should be denied full application when the evil apprehended has its source in the action or the threatened action of another person, rather than the forces and perils of the physical world. 11. Rationale for duress a) Utilitarian view: the coercing party has criminal disposition and should bear guilt because to punish the coerced would be an ineffective deterrent. b) Retributive view: coerced actor doesnt deserve to be punished; lacks mens rea: (1) Acting voluntarily but without intent (2) But they did intend the act itself
6.
Insanitya legal term that relies on medical evidence. It might be termed a state of mental disease or defect, which can render a D legally irresponsible for criminal activity. 1. insanity or mental defect becomes relevant at three different points in the course of criminal proceedings: a) at the time of trial (the test is can the individual participate, consult with his attorney with a reasonable amount of competence) b) at the time of execution in a death penalty case (before an individual can be executed, he must be able to appreciate that he is facing death; cant assist in the appellate or the clemency processes) (1) also say that the D is not able to make peace with Goda religious reason inappropriate in modern secular society? Part of CL.
C.
These executions are peculiarly cruel if the person doesnt understand why he is being put to death c) Insanity defense dealing with mental state at the time of the crime (grounds for acquittal) (1) Some states have guilty but insane option (2) Others have not guilty by reason of insanity (3) This is a question for judges and juries (4) This defense forces us to return to fundamentals of purposes of punishment (a) Why are we punishing somebody? (i) Deterrence, incapacitation, or other utilitarian calculus might lead to punishing the insane person (ii) Desert or justice questionif not morally responsible and lacked capacity to understand their actions, there might be injustice in punishing the insane. 2. Conflicts: a) When a person is found insane, it usually is obvious to both sides and the case is dropped. b) It becomes a matter of dispute when the crime is especially horrific and there is a public cry for vengeance. c) How accurate is the diagnosis? Should they be released when their insanity is cured based on medical evidence that the person is no longer under the defect or condition? Should it matter the crime they committed? d) Is there a need for retribution that overrides the insanity in the most egregious cases? e) D is clearly mentally disturbed but debatable as the whether it rises to the level of insanity f) Clash between societys desire to punish wrongdoers and intuitive sense that punishment of the mentally ill may not be appropriate. 3. Procedure a) Assumption that D is sane b) D has initial burden of raising insanity as an affirmative defense c) Many states require insanity proven by a preponderance of the evidence d) Some states require prosecution to prove beyond a reasonable doubt that D is sane 4. Rationale a) For insanity defense: (1) When an individual is clearly insane, he cannot be held responsible for his actions b) Against insanity defense: (1) Public desire for vengeance (2) Desire for general deterrence (3) Fear that insanity defense will be abused (4) Rich persons disease--$ needed for expert testimony
(2)
Anyone who commits such a heinous crime must have been insane 5. Tests for insanity: a) MNaghten Ruleinability by mental disease or defect to understand the nature of an act or to distinguish right from wrong. (1) Cognitive test(1) did the D know the nature and quality of the act, and (2) did D appreciate it was wrong (understand right and wrong) (2) Was D capable of understanding that society regarded the act as wrong? We are not concerned with ignorance of the law. This is not an invitation to assert different cultural standards. (3) MNaghten is accepted by all states. (4) Criticisms (a) Test is grossly unrealisticdoesnt recognize degrees of incapacity (b) Places unrealistic weight on psychiatric testimony (c) Outdateddisregards mental illnesses that effect volition b) Irresistible Impulse Test(volition test instead of cognitive) Despite knowing the action was wrong, D was unable to control his behavior because of mental disease or defect. (1) First look a MNaghten test (2) If sane under MNaghten (knew right from wrong), was the D unable to control his will, could he control his impulses? (Incapable of conforming behavior to societys will) (3) This is a supplement to MNaghten test and only some states have adopted it. (4) Policeman at the Elbow Corollaryif the D restrained the impulse in the presence of an authority figure, then the behavior wasnt all that irresistible and the defense is denied. Not irresistible impulse if D is able to control his actions in the presence of the police. (5) Criticisms: (a) Majority of psychiatrists believe that they do not possess sufficient accurate scientific basis for measuring a persons self-control c) Durham/Product Testa person is excused if her unlawful act was the product of mental disease or defect. A crime is a product of the disease if it would not have been committed but for the disease. (1) Minority of states use this test (2) Criticisms: (a) Problem in definition of mental disease because insanity is a legal term, not a medical term (i) Test failed to define phrase mental disease or defect (b) Allows psychiatrist to usurp jurys authority
(5)
Excluded from criminal responsibility deterrable and morally blameworthy actors (d) Large array of psychological conditions short of insanity that could be used as a defense (e) May be at odds with the sciencesdeterministic model choices individuals made are severely constrained; determined by a large variety of factors that make a person not culpable. d) MPC approachDid the D lack substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law? (1) Not really used in the states; closer to the irresistible impulse and Durham tests e) Rotten social background defense (1) Extrinsic factors beyond the control of the D make blame inappropriate? NO. (2) Arguments against: (a) Subject to extreme abuse/fraud (b) Relies on experts who make a crucial subjective determination based on unscientific and vague terms (3) For: (a) Detractors grossly overestimate the number of people who are acquitted under an insanity defense. In fact, jurors and judges are generally skeptical about the defense and the expert testimony. It a necessary guarantee that only those who are morally blameworthy be punished. f) Insanity Defense Reform Act of 1984Authorizes the insanity acquittal ONLY if D as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the act. g) Guilty but mentally ill (1) D is typically considered guilty but mentally ill if he was mentally ill though not legally insane at the time of the crime. This leads to a criminal sentence just as would regular conviction, but the D is then evaluated to determine whether psychiatric treatment is appropriate. The treatment may involve hospitalization, but once released, the D returns to prison to serve the remainder of his sentence. (2) At the expiration of the sentence, D is released whether or not cured. (3) Most states do not have this option, but a minority do. 6. MPC Caveat Paragraphdoes not affirmatively define mental disease or defect but contains a caveat making clear that the term excludes an abnormality manifested only by repeated criminal or otherwise antisocial conduct. The majority of the states follow the MPCs approach.
(c)
If a pattern of anti-social behavior is sufficient basis for an insanity defense, then a substantial portion of serious criminals would be able to assert this defense, and b) Would put in the mental institutions person for whom there currently is no suitable treatment, and who would be a constant danger to the staff and other inmates.
a)
E. Intoxication
a. Common Law (beginning): Intoxication was NOT a defense, rather, aggravated the offense. Even if intoxication negated mens rea, STILL NOT a defense. b. Common Law (later): Intoxication was a defense ONLY for specific intent crimes but not for general intent crimes c. Countertrend: Intoxication is NOT a defense. Intoxication is voluntary and dangerous, and actor should be held fully responsible. d. MPC 2.08 Elements: a) Another person threatens to kill or seriously injure the D or a third party (close relative) b) The actor reasonably believed the threat was genuine c) The threat was present, imminent, and impending at the time of the criminal act d) There was no reasonable escape from the threat except through compliance with the demands of the coercer e) The actor was not at fault in exposing herself to the threat 13. State of mind of D = extreme circumstancesno applicable faculties as a result 14. the coercion or duress must be present, imminent (unless there is no reasonable way to get out), impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. 15. duress can be a defense to any offense except murder or voluntary manslaughter 16. The new majority is not to look at the issue of duress in terms of absolute right and wrong but more in terms of would a reasonable person have been able to resist this kind of pressure. If not, then it might provide an excuse. 17. The majority view holds that a crime committed under duress is a voluntary act because the D makes a choice to violate the law, even though that choice is compelled. Person satisfied the actus reus but has a mens rea defense. 18. the crime committed under duress is not necessarily the lesser evil. (Differs from necessity) a) the crime is excused because the D is considered less culpable and because society sympathizes with her predicament even though it doesnt condone it. 19. MPC
12.
Affords duress defense in cases where D was coerced to commit a crime by the use or threat of unlawful force against his person or the person of another that a person of reasonable firmness in his situation would have been unable to resist. b) Requires no threat of physical injury c) Does not limit the defense to cases involving an imminent threat of death or serious bodily injury d) Does not foreclose the defense in murder cases e) Defense is unavailable if D recklessly places himself in a situation in which it was probable that he would be subjected to duress 20. Traditional common law view is that duress and necessity are simply variations of the same defense, depending on the source of pressure confronting the D. 21. MPC says that if D does choose the lesser evil, it considers the act justified regardless of the source of the pressure because there is no reason why the necessity defense should be denied full application when the evil apprehended has its source in the action or the threatened action of another person, rather than the forces and perils of the physical world. 22. Rationale for duress a) Utilitarian view: the coercing party has criminal disposition and should bear guilt because to punish the coerced would be an ineffective deterrent. b) Retributive view: coerced actor doesnt deserve to be punished; lacks mens rea: (1) Acting voluntarily but without intent (2) But they did intend the act itself
a)
Diminished Capacity There are two variants of the diminished capacity doctrine Mens rea variant The defendant is trying to negate an element of the offense. This is neither a justification nor an excuse, but a failure of proof offense. This is a failure of proof offense because the prosecution cannot prove the mens rea of the crime. If there is no mens rea then the defendant would be acquitted from the crime. The distinction between specific and general intent crime come into play here. For a general intent crime this can provide a partial protection, while with a specific intent crime it is a complete protection. There are some limitations to this doctrine. Some jurisdictions will limit to specific type of offenses such a homicide. Partial Responsibility variant The defendant is held less responsible for the crime, but it is not a complete defense. All of the elements of the crime are proven, but something mitigates the crime so that the punishment is lessened. There is some sort of mitigation in terms of culpability or punishment. This variant is an excuse defense. The defendant has less or diminished moral blameworthiness. It is not a complete defense that can get the defendant acquitted. This is the minority approach and is used in very few jurisdictions. When it is used it will be limited to very specific crimes. The judges will consider this information during sentencing as well even if it wasnt let in during the trial.
Attemptintent to do an act or bring about certain consequence which would in law amount to a crime if accomplished (inchoate crimes = attempt, conspiracy, solicitation) A criminal attempt requires both intent to do an act or cause a result which constitutes a crime; and an act that goes beyond mere preparation that is in furtherance of the crime. A. Intent 1. Attempt is a specific intent crimeOne must actually have intent to do the specific crime before making the attempt a) Dual intent (1) Specific intent to commit the attempt portion of the crime (2) Specific intent to commit the target offense also, even if it is general intent 2. Mens Rea is purpose a) It is impossible to intend to commit negligent or reckless crimes b) 2nd degree murder and involuntary manslaughter cannot have attempt because they are not specific intent crimes 3. One potentially has defenses to charges of attempted crime that one would not have for the target offense if it had occurred 4. Specific Intent defenses: voluntary intoxication, mental incapacity 5. MPC Mens Rea does not encompass attendant circumstances a) Actor just needs to possess the degree of culpability required to commit the substantive offenses b) If can be convicted of stat. rape for being reckless, can be convicted of attempted stat. rape if he is reckless but not negligent or innocent B. Overt Act 1. Merges if target offense is committed 2. Act must go beyond mere preparation/thought and into perpetration 3. Want to move it back far enough to give potential criminals opportunity and incentive to withdraw from criminal activities. 4. But want to be able to stop early enough in process to prevent harm without running major risk of harms occurring a) This is the dilemma of attempt we discussed in class. 5. MPC uses Substantial Step Test [USE]act or omission constituting a substantial step in the course of conduct intended to result in the crime. a) The step must be strongly corroborative of Ds criminal purpose. b) Emphasis on whats already done. (use MPC on exam) c) Beyond preparation and into acts of perpetration (1) Lying in wait, searching for V, unlawful entry of location of crime, possession of specially designed materials for the crime 6. Proximity testhow close the D came to completing the offense. When he had done all that he believed necessary to bring about a particular result that is an element of the offense, he committed an attempt. C. Public Policy 1. We want to be able to punish would-be wrongdoers because a person who seeks to commit a crime is dangerous and will try again and likely succeed.
VI.
Deterrence is maximized if criminals know that they will be prosecuted whether or not they are successful. - utilitarian 3. Criticism a) Criminal liability for those who have caused no actual harm retribution argument b) Also, critics say that it is necessary to allow criminals to renounce their intentions before they are arrested. D. Kinds of Attempt 1. Simplest kind: MPC: When causing a particular result is an element of the crime, the actor does or omits to do anything with the purpose of causing or with belief that it will cause such result without further conduct on his part. a) Ex. terrorist who sets a bomb to go off but it doesnt allows for attempted stat. rape 2. Actor is interrupted in course of conduct intended to cause harm 3. Mistaken belief on the part of the actormistakenly believes that the crime can be completed when it in fact cant. a) Ex, someone who takes someones umbrella but in fact it is his own umbrella.
2. E.
Defenses to Attempt 1. Abandonment (we want to give people the chance to withdraw) a) Traditionallyonce D crossed line from preparation to attempt could not abandon b) Modern and MPCcan be defense as long as (1) Did not abandon because of threat of discovery or fear of discovery or increase in difficulty in committing the crime (a) Guy drilling hole (2) D had genuine change of heart and the withdrawal was voluntary (3) This gives an incentive for criminal to give up criminal plans c) MPC (1) Allows abandonment when the last proximate act has occurred so long as the criminal result can still be avoided (2) The defense is unavailable once D has put in motion forces that he is powerless to stop 2. Impossibility (remember, attempt is not for crimes that are reckless or negligentthere is no mens rea for those crimes) a) Legal impossibility: it is no crime to attempt something that is legal. Has traditionally always been a defense. (1) Two types of legal impossibility: (a) True legal impossibilityaction is not a crime (there is no statute against the action) (i) Ex: B goes fishing believing that fishing is prohibited in the lake. In fact there is no prohibition against fishing in that lake; thus B cannot be charged with any crime. [even under MPC]
Hybrid legal impossibility - factual mistake as to legal status of an attendant circumstance (i) D fires gun into corpse. Legally impossible because body is already dead, so cant satisfy the definition of murder. (2) MPC says lets ask if circumstances were the way the D believed them to be, would it be a crime? MPC punishes attempts so long as the Ds conduct would constitute the crime if the circumstances were as the D believed them to be. [USE] (a) receives unstolen property believing it is stole guilty under the MPC (b) Would also be guilty in the shooting at a corpse example b) Factual Impossibility: NOT a defense (1) Attempted act was criminal, but failed b/c because of circumstances unknown to him. (a) if D thought toy gun was real. (b) Pickpocket hand in empty pocket (c) Shooting at an empty bed (2) Inherent factual impossibility is a defense i.e. voodoo c) Difference between legal and factual impossibility: (1) The difference is that of Ds intent. (a) If the act the D intended to commit was no crime, then it is a case of legal impossibility, and there is a defense. (b) If what D wanted to do was prohibited by criminal law but was unable to accomplish it because of unknown circumstances, then that is factual impossibility and there is no defense. F. Punishment 1. Common Law lesser offense than target 2. MPC same punishment as offense attempted a) Except first degree felonies downgraded to 2d degree crimes
(b)
. Attempt
Rule of merger applies: D cannot be convicted of both a completed offense and an attempt to commit it
A. Why Punish Attempt Crimes? [not deterrence, primarily law enforcement

argument] 1. Deterrence By punishing attempts, you are trying to deter the completed crime a. Critique of Deterrence Argument People who are trying to commit crimes are obviously not deterred by punishment for crime itself so wont be deterred by punishment for attempted crime2. Weakens stigma and deterrent effect of criminal conviction for harmful conduct 2. Retribution: Restore an order of fairness which was disrupted by crime
a. Harm-Based Retribution Punish when harm is inflicted -Can extend definition of harm: preliminary acts may cause apprehension or fear in others -Critique: Against punishing attempt crimes b/c no harm is really caused: Lex talionis - But if they havent taken an eye, shouldnt have an eye taken from them b. Intent-Based Retribution Punish based on evil mindset, moral blameworthiness, what they intend to do, not according to what did or did not occur -Good argument punishing since they have the same mental state as people who commit actual someone who attempts equally dangerous as person who completes 3. Law Enforcement Argument Crime of attempt provides basis for law enforcement officers to intervene before an individual can commit a completed offense
for crimes; crime
B. Grading Criminal Attempts most j/d punish attempt crimes less than the crime
itself 1. Retribution a. Same Punishment If retribution argument is based on intent, both the crime and the attempt should be punished the same (same mens rea) b. Different Punishment If retribution argument is based on harm, they should be punished differently b/c the crime causes more harm than the attempt. 2. Deterrence a. Same Punishment Punishments for attempts and the actual crimes are trying to deter the same crime so they punishments should be the same b. Different Punishment You want to stop people from committing the crime, so if the punishment is the same for attempt what is going to stop them?
C. To convict for an attempt:

1. Must intend to commit the acts that constituted the actus reus of an attempt AND 2. Must intend to commit the substantive crime
D. Mens Rea
1. Common Law at common law, to be guilty of an attempt crime, you needed to have the specific intent to commit the actual crime (e.g.: intent to kill) 2) Under MPC 5.01, level of culpability required for F circumstances: The mens rea required for the attendant circumstances of the completed crime is the same for the attempt crime (attendant circumstances do not require separate mens rea)
-Sufficient that one acts w/ the culpability that is required for commission of the completed crime; so long as a person has the specific intent to engage in the conduct, or to cause the result, no other culpability required for attendant circumstances -E.g. Attempted trafficking in stolen property: enough that she purposely trafficked in stolen propertyOnly if substantive offense requires proof that the actor was reckless in regard to the attendant circumstance do we have to find that she was reckless in regard to fact that property was stolen
E. Actus Reus
1. Incomplete attempt: Actor does some of the acts that he sets out to do but then desists or is prevented from continuing by an extraneous factor (e.g. intervention of police) 2. Completed attempt: Actor does every act planned but is unsuccessful in producing the intended result (e.g. shoots and misses intended victim, dumb luck) a. Conduct Crimes (5.01(a)) - D purposely engaged in conduct that would constitute the crime if the attendant circumstances were as he believed them to be; PURPOSE b. Result Crimes (5.01(b)) D purposely acts or omit to do anything w/ purpose of causing or w/ belief that it will cause such result w/o further conduct on his part; PURPOSE or KNOWLEDGE
1. Impossibility Doctrine
a. Factual impossibility: Exists when Ds intended end constitutes a crime but she fails to consummate it b/c of a factual circumstance unknown to her or beyond her control. Pointing unloaded gun at someone and pulling trigger where D believed gun was loaded; Trying to steal from an empty pocket b. Legal impossibility 1. Pure legal impossibility: Exists if criminal law does not prohibit Ds conduct or the result that she sought to achieve; Actor engages in conduct that he believes is criminal but is actually not prohibited by lawe.g. Believes legal age of consent is 16 (but actually is 15) and has sex w/ 15 yr. old 2. Hybrid legal impossibility: Exists of Ds goal was illegal, but commission of the offense was impossible due to a factual mistake regarding legal status of some factor relevant to her conducte.g. Offering a bribe to a juror who was not actually a juror, stolen property w/ knowledge that it is stolen but was not actually stolen c. At common law, legal impossibility was a defense but NOT factual impossibility d. MPC Sweeps aside defense of hybrid legal impossibility because it wants to punish intent
1. 5.01(1)(a) Conduct Crimes punishes attempts if D believes they are committing a crime even if the attendant circumstances are not as D thinks and therefore the act is not really a crimee.g. Receives unstolen property believing that it was stolen; Attendant circumstance: stolenness of the property (status) If she believed that it was stolen (attendant circumstances as she believed them), guilty 2. 5.01(1)(b) Result Crimes punishes attempts if D believes that their conduct will cause a result, even if it really wont 3. Rationale for abolishing hybrid legal impossibility defense: 1) Actors criminal purpose has been clearly demonstrated, fully committed to I llegal escapade 4. Rationale for keeping hybrid legal impossibility defense: 1) Criminal law need not take notice of conduct that is innocuous 2) But criminal purpose not necessary demonstrated, convicted based on circumstantial evidence (risk of enforcement error or abuse)
VII. Solicitation A. It is an indictable offense at common law for one to counsel and solicit another to
commit a felony or other aggravated offense 1. Even if the solicitation is of no effect and the crime counseled is not in fact committed. B. MPC says the crime of solicitation is complete even when the actor fails to communicate with the person he solicits if his conduct was designed to effect such communication. 1. i.e., an uncommunicated solicitation can still lead to liability C. The crime of solicitation has two elements: 1. Encouraging or advising another person to commit a crime (actus reus) 2. With the intent that the other person commits the acts constituting the crime (mens rea) a) So it cannot be a joke b/c there would be no mens rea b) There is a difference between advocating that a person take an action and simply providing information. D. Merger 1. The crime of solicitation merges into the offense with commission and with attempt [via accomplice liability]. a) Also merges with conspiracy to commit the offense b) Solicitation is an attempted conspiracy 2. It only survives as an offense when the solicited party refuses or ignores the solicitation. E. Renunciation of Solicitation [only difference] 1. Not a defense under common law
2. 3.
Policywe want to undo this kind of behavior MPC recognizes a defense in cases of a) complete and voluntary renunciation of criminal intent b) where the solicitor either successfully persuades the solicited person not to commit the crime, or otherwise prevents its commission.
Conspiracyan agreement between two or more people to commit a crime. The agreement need not be formal or written. A. The following elements are commonly included in conspiracy statutes: 1. An agreement between at least two people 2. Purpose to enter into that agreement (mutual purpose) a) Can prove through direct or circumstantial evidence 3. An overt act in furtherance of the agreement 4. Purpose to promote the unlawful act that is the object of the conspiracy 5. Knowledge that the unlawful act is indeed unlawfulminority of states B. Conspiracy is a separate and distinct crime from the target offense C. Rationale for conspiracy: group danger. D. The Requisite Mens Rea 1. Intent to agree 2. Intent to accomplish objective E. Actus Reus 1. The Agreement a) KEY is the agreement to commit unlawful acts or series of acts b) Can be established by direct evidence or entirely by circumstantial evidence (1) Hard to find direct evidence because of secretive nature and usually no express agreement (a) Dilemma: either allow this kind of circumstantial evidence and say that it is sufficient to allow it to go in front of jury raising possibility of innocent party who may in fact be convicted simply because of association and circumstance orif we dont allow this kind of evidence, do we simply say that most conspiracies cannot be punished because we are unlikely to find the express agreement? c) The modern view and MPC view is that one may be unilaterally convicted if he agrees with another person to effectuate the crime. The focus is on the attempt to commit the crime based on an illegal combination. (1) Unilateral approach: ones co-conspirators include not only those individuals with whom he directly agreed, but also any person with whom co-conspirators have agreed, provided that he is aware of those agreements and knows that they have the same objective as his agreement. (2) Unilateral different from bilateral approach in choosing wheel or chain metaphors because bilateral assumes that the boundaries of
VIII.
each conspiracy need to be carefully delineated because each party is equally liable. d) Common laws bilateral approach treats conspiracy as a group crime, punishing the actual formation of the illegal combination e) Wharton Rule offenses that require two people could not be the object of conspiracies. (1) Modern and MPC differ and allow prosecution for conspiracy in such cases. f) Agreements with multiple objectivesMPC says that if a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. 2. The Overt Act Requirementany act committed by any one of the conspirators in furtherance of the agreements unlawful objectives. a) two function: (1) to provide a locus poenitentiaean opportunity for the conspirators to reconsider and terminate the agreement, and thereby avoid punishment for the conspiracy. (2) To verify the existence of the conspiracy, to show the operation of the conspiracy b) the overt act does not need to be criminal and it does not have to be an act beyond mere preparation F. The Scope of Conspiracy Liability 1. even though many of the parties may never have communicated with each other, they are considered part of a single conspiracy if the prosecution can show a community of interest among them 2. Chain Conspiracy: the parties are linked together in a linear fashion a) Typically each party or link has a specialized function b) It must be established that he or she knew that the others existed and that they shared a community of interest 3. Wheel Conspiracy: several subsidiary parties are connected to a main central party. a) The wheel is considered a single conspiracy so long as the spokes are all part of the same general agreement b) If it can be shown that the spokes shared a community of interest, the existence of a general agreement can be inferred and the spokes can be deemed part of one single conspiracy c) In a multiple D conspiracy trial, hearsay that is introduced against one co-D can end up implicating other co-Ds. Particularly when words can be seen as actions d) Wheel conspiracies are harder to prove because the success or failure of one spoke is often independent of the success or failure of the others. Its hard to show that the spokes were aware of each other and shared a common goal. 4. Prosecutorial AdvantagesCriminal liability attaches at an earlier point in time for conspiracy than it does for substantive crimes or even criminal attempts
5.
6.
7.
8.
9.
Co-conspirator hearsay exception (1) Normally an out-of-court statement that is offered to prove the truth of its content is inadmissible hearsay. But law of evidence has created exception for any statements made by a Ds co-conspirators during course of and in furtherance of the conspiracy. b) Choice of venue c) Joint trial of multiple Ds guilt by association d) The Pinkerton Doctrine [DONT FOLLOW] e) Extended statute of limitations begins when conspiracy ends The Pinkerton Doctrine [dont follow] a) A conspirator is liable for all foreseeable crimes committed in furtherance of the conspiracy so long as he or she was a member of the conspiracy at the time the crimes were committed b) MPC rejects Pinkerton doctrinethe only crime you can automatically be convicted of is conspiracy itself. (1) Liability for further crimes depends on involvement. Act in attempt vs. act in conspiracy a) Threshold is lower for overt act of conspiracy than for attempt of conspiracy (1) Act can be a legal act b) What happens if the activities are intercepted before they get to the attempt or completion stage? (1) Can be guilty of conspiracy but not accomplice liability. Withdrawal [get out of target offense, but not conspiracy]: a) In order to withdraw, [MPC] (1) Can tell everyone youre out (2) Tell the police b) When a conspirator withdraws, he is not responsible for crimes subsequently committed by other conspirators in furtherance of the conspiracy but still liable for conspiracy Renunciation [get out of conspiracy] [not allowed in CL] a) Requires SUCCESFULLY persuading your co-conspirator to drop the activity. (1) But if they dont successfully renounce, they will still be guilty under a conspiracy theory. b) The renunciation is a defense not only to crimes committed by his coconspirators in furtherance of the conspiracy, but also to the crime of conspiracy. c) MPC allows conspirators to renounce a conspiracy and absolve themselves of liability for the crime of conspiracy. It requires a conspirator to thwart the success of the conspiracy. d) Charges of conspiracy and solicitation give way to the renunciation defense only where the D prevented the commission of such crime. The statute does not say that Ds efforts must be the sole reason that the object crime was not committed. (People v. Sisselman). Punishment
a)
a) b) IX.
Misdemeanor in CL Highest offense other than first degree (pg 426 dressler)
Accomplice Liability [solicitation merges to this] A. Common Law Approach 1. principal in the first degreethe actual doer of the crime; can be physically or constructively present 2. principal in the second degreemust be present at commission to aid, counsel, encourage; may be through constructive presence. aiding and abetting. 3. accessory before the factorders, counsels, aids or abets another to commit a felony and who is not present at the commission; aid may be far removed in time 4. accessory after the factnow not considered accomplice; obstructed justice separate crime a) he knew and gave aid to the felon personally for the purpose of hindering the felons apprehension, conviction or punishment. B. MPC Approach [TEST] three categories: 1. the principalthe actual doer of the fact, must be present or constructively present. There can be more than one principal. a) Anyone who acts through an innocent, irresponsible, or unwilling agent is also classified as a principal. 2. the accompliceevery bit as guilty as the principal. A person may be an accomplice who may not be legally eligible to be the principal. a) One who aids, counsels, or encourages the principal before or during the commission of the crime b) Common law and MPC, a person who is legally incapable of committing an offense can still be convicted as an accomplice. (1) Ex, if husband cant legally rape his wife, if he encourages the rape of his wife, he can be an accomplice to her rape c) Liable for the target offense just as the principal is liable for it d) Accomplice can be convicted but not the principal 3. accessory after the factone who aids the principal or the accomplices after the offenseobstruction of justice. C. Extent of Participation NecessaryActus reus 1. To establish aiding or abetting, the government need only show that a D in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed. a) This means there must be some affirmative participation that at least encourages the perpetrator. b) Omisssion BY ITSELF is not enough (but with anything more it is) 2. Psychological influence a) Distinction between advocacy, stating an opinion and encouraging people to activity. Advocacy is protected. b) Encouragement of law breaking is solicitation and is not protected. Makes them an accomplice to the law breaking. 3. Accomplice is responsible for the crimes he did or counseled and for other crimes committed as long as the other crimes were probable or foreseeable.
If a parties presence is inevitable to crime (bribes, prostitution, etc) then cant charge them for liability?? D. State of Mind NecessaryMens Rea 1. There is no aiding and abetting unless one in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. 2. Accomplice liability requires intent to aid or encourage the principals crime. This requirement is sometimes broken down into duel intents: a) The intent to assist the primary party; and b) The intent that the primary party commits the offense charged. E. Proof of purpose Knowledge is not enough 1. Majority and MPCrequire proof of purpose in the context of accomplice liability. a) Ex. One who sells a gun knowing that it is to be used for a crime is not considered an accomplice unless his or her purpose was to aid that crime. 2. Minority opinion says that knowledge is sufficient. (Cottrol: This is probably the better viewpoint. 3. Knowledge and intent is required a) Intent Requirements Established by (1) Direct Evidence; or (2) Inferred by (a) special interest; or (i) charged no special price (ii) no different amount sold (b) aggravated nature of the crime (i) Selling explosives vs. providing a call service 4. For crimes requiring recklessness or negligence a) Some courts say that D can be convicted of involuntary manslaughter b/c he gave assistance to engage in conduct that is dangerous to life. b) MPC likewise envisions that one can be convicted as an accomplice to involuntary manslaughter without proof of purpose to kill. c) Other courts have held that allowing a drunk person to use your car is not aiding a drunk driver to kill while driving. F. Natural and Probable Consequences Doctrine 1. An accomplice is held liable under CL for any crimes that are the natural and probable consequences of the initial act he assisted. 2. Four questions: a) Did Principal (P) commit target crime A? b) Was S accomplice to P in commission of Crime A? c) Did P commit further crimes? d) Were further crimes, although not contemplated or desired by S, reasonably foreseeable consequences of Crime A? 3. MPC and many courts say that accomplice liability should not be extended beyond the purposes he shares because otherwise the liability would be inconsistent with criminal law since it allows a conviction even when D doesnt have the required mens rea for the crime.
4.
Withdrawal of Aid 1. An accomplice has a defense of withdrawal a) Communicated withdrawal b) removed all aid and encouragement; c) gave the police timely notice of the crime. 2. If an accomplice withdraws all aid and encouragement prior to the time the crime becomes unstoppable, the accomplice is not subject to liability even if the principal goes on to commit the crime. 3. A voluntary withdrawal (abandonment) communicated to ones accomplices can get one out of accomplice liability. H. Helpful hint: a person is not charged with the crime of accomplice; he is charged with the crime itself.
G.

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II. Omission (Negative Acts)

E. Mens Rea: Mistakes

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If No [LOOK AT SUBJECTIVE AWARNENESS] (1) 2d degree Murder (2) Involuntary Murder

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A. Degrees of Murder: Deliberation-Premeditation Formula

B. Manslaughter: Heat of Passion Killings

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Reasonable Person Standard Must Decide:

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2. Reckless and Negligent Killings (Unjustified Risk-Taking)

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I. The Constitutional Debate

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Rape statutes, p. 384

D. Rape by Fraud or Non-Physical Threats

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A. Why Punish Attempt Crimes? [not deterrence, primarily law enforcement

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for crimes; crime

C. To convict for an attempt:

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