Outline Criminal Law NB: the only crimes we have looked at are sex crimes and homicide.

. Therefore, know the ins and outs of these, and know defenses and conditions/tests for attempt. That is the final (except for perhaps statutory interpretation and some policy issue retributive vs. utilitarian). I. Intro to Criminal Law A. Sources 1. modern penal code (MPC) 2. common law (CL) a. know which crimes prosecuted under what b. know differences in analysis between both forms B. Elements of a crime 1. mens rea (MR) 2. actus reus (AR) 3. causation: did my acts combined w/mental state combine to result in social harm actual and proximate causes 4. social harm a. all four elements should occur about the same time C. Trial Process 1. Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." 2. Steps for prosecuting a felony a. felonious crime committed b. arrest (made with probable cause) c. complaint d. arraignment e. preliminary hearing/grand jury indictment f. motions g. trial h. sentencing D. Punishment theories (understand basics for policy argument questions) 1. Utilitarian a. General deterrence b. Specific deterrence c. Isolation d. Reform 2. Retributive 3. Proportionality: Need it be considered? Owens v. State: Owens convicted of drunk driving but police never saw him driving only parked. Circumstantial convictions allowed to stand circumstances were "inconsistent with any reasonable hypothesis of innocence."

State v. Ragland: Affirmed that while jury nullification is a power of juries, it is not a right under the Sixth Amendment and so no need to instruct juries that they have this power. Coker v. Georgia: US Supreme Court held that death was disproportionate and therefore unconstitutional punishment for rape under the "cruel and unusual" clause of the 8th Amendment. Decision justified by rape not as serious as murder and no other states had such a punishment. Harmelin v. Michigan: US Supreme Court upheld mandatory life sentence for drug possession deciding that the 8th Amend does not require strict proportionality, but rather it only forbids extreme sentences that are "grossly disproportionate." United States v. Jackson: Jackson released from prison and that same day robs a bank. Apprehended with a weapon and sentenced to life under a statute requiring recidivist felons caught with weapons to serve mandatory life. Upheld because statute [enacted by the people through legislature] "reflects judgment that career criminals possessing weapons should be dealt with severely." E. Statutory Requirments and the Principle of Legality 1. Nothing can be considered a crime without a pre-existing law a. Law-making power should not be delegated to anyone who is a member of the judicial hierarchy (i.e., legislatures make laws) 2. Statutes cannot be vague or overbroad or else they are void 3. "Strict construction" (aka rule of lenity) which requires that judicial resolution of uncertainty in penal statutes should be biased in favor of the accused. Commonwealth v. Mochan: Held that a Pennsylvania mad could be convicted under common law for crime of lewd phone calls despite no statutory remedy existing for this. Dissent: Decision wrongly arrogated law-making authority to judiciary. Keeler v. Superior Court of CA: Keeler willfully kneed his adulterous wife in her pregnant belly causing the termination of a viable fetus living inside of her. Court held that because CA's murder statute did not define "human being" and because historical context and common law precedent seemed to show fetuses were not considered human beings in 1872 when code was written, Keeler could not be tried on murder (i.e., the unlawful killing of a human being, with malice aforethought). Court cannot unforeseeably enlarge statute, for this would be the same as ex post facto law. Dissent: Argues that statutory language is not frozen in time but must be fairly and reasonably interpreted by the court to carry out the justice intended in the statute. [NB: Statute amended to include fetuses.] In re Banks: Argued that a peeping tom statute was unclear as to precise meaning. Court parsed statute, attempting to determine intent of legis in drafting

it, and found it reasonably clear [e.g., such parsing is sometimes a task of the courts.] Determined that "peeping secretly" requires wrongful intent (i.e., the court inserted a mens rea in a statute that did not specifically address it). United States v. Foster: Courts spend much time interpreting statutes. This case shows how much time can be spent on one word: "carry" (e.g., does one carry a gun if on one's person, or if gun is hidden in bed of pickup?). Court reaches a conclusion, looking at dictionary, precedent and use of words in statute. Concludes that if legislature meant "transport," it would have included it in the statute. Court adds that even if it were difficult to decide, the rule of lenity requires that ambiguity be resolved in the way most favorable to the D. II. Actus Reus A. This is the physical or external aspect of a crime. B. No universally accepted definition is it 1. conduct (pulling trigger of gun) or 2. the result of the conduct (death of victim)? Some offenses punish the result (murder); some punish the act (drunk driving when no one is hurt). Conduct crimes vs. result crimes. NB: "attempt" turns result crimes into conduct crimes C. Voluntary Acts 1. Person must voluntarily commit act deemed criminal 2. Voluntary act objectively demonstrates willful intent (i.e., mens rea) Martin v. State: Police dragged Martin, already drunk, from his house onto a public road and charged him with public intoxication. Appeals court overturned conviction on grounds that appearance in public was not voluntary, as required in statute. State v. Utter: Appeals court held that, although facts insufficient to warrant reversal, principle that an involuntary act or spasm resulting in criminal harm removes culpability from D is valid, unless D placed himself in unconscious state voluntarily (such as use of drugs). D. Omissions and Resultant Guilt? 1. One cannot be held criminally culpable for refusing to act, unless one had a legal duty to another person. a. Legal duty: guardian or protector i. parent for a child ii. caregiver for patient iii. guardian of a mental deficient People v. Beardsley: D accused of not properly caring for an adult (over 30) woman who became voluntarily drunk and intoxicated on morphine and later died. D and woman had spent several days carousing together. D convicted of manslaughter. Appeals court reversed stating that D had no legal duty to a woman who was not his wife . D's act may be moral reprehensible, but it is not criminal.

Barber v. Superior Court, CA: Can two medical doctors be charged with unlawful killing (i.e., murder) by removing life support systems from a patient who, though in a vegetative state, maintains minor brain function? The removal of life support is not an act, but rather an omission of care (or heroic measures) and therefore there is no actus reus for homicide. This raises another issue: did doctors have a duty to continue to provide life sustaining treatment? The duty is removed once it is clear that such treatment is futile [i.e., no longer proportional] in that it doesn't sustain a life while the pathology is diagnosed, for the pathology is too severe, in this case, to be cured. III. Mens Rea A. Nature of Mens Rea 1. Definition difficult. Some broad attempts (p.132n1): a. Culpability (common law) i. guilty mind; vicious will; morally culpable state of mind Regina v. Cunningham: generalized evil mental state is not enough, the MR must be related to act committed. b. Elemental (narrower def; statutory) i. does mens rea meet the requirements of the statutory language? Typically defining a type of intent. ii. look at MR at the moment of the act B. General Issues in Proving Culpability 1. Intent a. Normally both the conscious object of actor as well as anything he is virtually certain will occur. 2. Proof of Intent a. Can therefore be inferred (but not presumed) that a person ordinarily intends the foreseeable consequences of his acts. People v. Conley: court, having proven facts of vicious battery, able to infer that D intended to cause "permanent disability" (statutory language) based on the viciousness of the attack, including lack of warning given to victim. b. Transferred intent applicable to crimes (predominantly in homicides). i. only applicable if resultant crime causes same level of social harm as intended crime (must have MR and AR) 3. Specific vs. General Intent (140n6; intent, 138-141) a. Specific intent i. intend to do something more than the act (e.g., break into house with intent to commit a felony therein) b. General intent i. act itself is enough 4. Model Penal Code 2.02 and mens rea (141-145)

a. MPC requires prosecutor to prove particular mens rea for each crime, not just a morally blameworthy manner b. MPC abandons countless common law mens rea terms and replaces them with four: i. Purposely a. intends to cause a result ii. Knowingly a. knows behavior almost certain to cause result iii. Recklessly a. consciously disregards a substantial and unjustifiable risk b. a gross deviation from law-abiding standard of conduct iv. Negligently a. should be aware of a substantial and unjustifiable risk b. the lack of awareness is a gross deviation from reasonable standard of care c. One of these levels of culpability must be proved with respect to each "material element" of the offense, namely, i. the nature of the forbidden conduct ii. the attendant circumstances iii. the result of conduct 5. "Knowledge" of Attendant Circumstances a. Att. Cir. are simply facts that occur with the crime and there is no need to prove a mens rea with respect to them, just that they existed. i. If it is deemed a material element, then a mens rea applies. b. MPC defines recklessly and knowingly in similar ways. In effect, recklessness is a refusal to confirm a suspicion, or a knowledge that once other knowledge is known, you won't like that knowledge! This is termed, "willful blindness" (2.02(7)); deliberate effort to avoid learning the truth. State v. Nations: By MO statute, a person can only endanger a child "knowingly". In this case, the D had not yet ascertained a child's age when she let her dance scantily clad on a stage. State argued that age of child was only attendant circumstance. According to MO code, knowing requires actual knowledge of a fact, not refusal to find out. Held: D guilty of recklessness, but not knowingly endangering a child and so, by statute, she is guilty of nothing at all. 6. Problems in Statutory Interpretation a. MPC address it in 2.02(4): when words unclear, they apply to entire statute unless explicitly stated otherwise. C. Strict Liability Offenses 1. Exclusion of mens rea requirement from "public-welfare offenses" a. criminal liability attaches without regard to fault if conduct involves, i. minor violations of liquor laws, pure food laws, motor vehicle and traffic regs, building and factory laws ii. court typically refuses to hold felony convictions to a strict liability standard

Staples v. US: Court argues that punishment too severe for a strict liability offense. So many people own guns innocently, that to criminalize their behavior strictly would trap a lot of people who would be unaware of the law. Court argues that as mens rea is traditional in our law, it should be assumed. Rules: mens rea is firmly entrenched in American law; mens rea is the rule not the exception; severe punishment is inconsistent with regulatory matters. b. statutory rape is the only major crime ascribed strict liability Garnett v. State 2. MPC generally rejects strict liability (2.05). 3. Typical criticisms of strict liability a. does not deter since actor is unaware of the facts that render his conduct dangerous b. unjust to condemn a person who is not morally culpable D. Mistake and Mens Rea 1. Mistake of Fact a. Common law mistake is complex due to elemental/culpability issues and general/specific intent b. Mistake of fact (e.g., believing property to be yours) is not an excuse in general intent crimes. In specific intent crimes, where a felonious belief must be proved, then it is. i. see People v. Navarro: erroneous belief, even if unreasonable may be considered by jury as excuse ii. negligence is not applicable to specific intent crimes c. "moral wrong" doctrine i. if mistake of fact occurred, then if jury holds that were the mistake true, the act was still "immoral," then D is convicted (176n5; cf. dissent in Garnett) d. "legal wrong" doctrine i. if act based on mistake is still "illegal," then D may be convicted of the more serious offense of which he is factually guilty (177n6) 2. Mistake (or ignorance) of Law a. defense rarely permitted. i. strict liability statutes: even a reasonable belief not permitted as excuse People v. Marrero (1987): After final appeal, D was not allowed to claim that he misunderstood the statutory definition of peace officer (which led to his conviction of carrying an unlicensed firearm) and claim excuse under NY's "mistake of law" statute. D's conviction upheld because the statute he violated was a strict liability statute and therefore "mistake", even a reasonable one, is not an excuse when there is no mens rea specified by a statute.

ii. specific intent (i.e., mens rea requirement) even an unreasonable belief permitted to be given as excuse (though jury can disregard) Cheek v. US: anti-tax crusader IV. Causation A. Actual cause (cause-in-fact) 1. "But for" test: a D's conduct is a cause-in-fact if the said result would not have occurred "but for" the D's conduct i. Oxendine: he beat kid but did not inflict mortal injury, therefore, his beating is not a but-for cause (would be if could be proven he accelerated death) 2. Concurrent and contributory but-fors i. acts together cause the criminal harm, but neither alone would have 3. Substantial factor test (rarely used to replace "but for" test): when acts of two D's would each alone be sufficient to result in the harm; both can be found guilty this way 4. Proximate cause req: even if D's act is cause-in-fact, courts won't impose liability where: a. prohibited result of D's conduct is beyond scope of any fair assessment of the danger created by D's conduct b. where it would otherwise be unjust based on fairness and policy considerations B. Proximate Cause ("Legal" Cause) 1. Cannot be a proximate cause without being an actual cause [but] Can be an actual cause without being the proximate cause 2. Intervening force a. but-for causal agent comes into play after D's act or omission, and before the social harm occurs i. act of God ii. 3rd party that accelerates or aggravates the harm caused by D iii. act or omission of victim that assists in bringing about the outcome b. coincidental/intervening/supervening i. happens without any cause from D ii. breaks chain of causation unless foreseeable by D Kibbe v. Henderson: it is foreseeable to a reasonable that a drunk left by the side of the road might wander into it and be hit by a car c. responsive/dependent i. D is somehow responsible for bringing about this act ii. breaks the chain of causation only if abnormal d. MPC 2.03 i. merely a proximate cause req: "actual result not too remote or accidental in its occurrence to have a just bearing on D's liability" C. Intended Consequences (common law) 3. "Apparent safety" (common law)

a. when a person reaches a position of safety, original wrongdoer is no longer responsible for ensuing harm V. Criminal Homicide Common Law Murder: (killing with "malice aforethought") - premed/deliberate - intentional - depraved heart - felony murder Manslaughter: (kill w/o "malice aforethought") - voluntary - involuntary MPC Murder: - intent to kill - intent to do serious bodily injury - depraved heart/reckless indifference - (felony murder) Vol Manslaughter: - reckless - EED Negligent Homicide: - Gross negligence

Four types of murder: intent to kill intent to cause serious bodily injury that results in death callous indifference to human life (depraved heart; extreme recklessness) felony murder A. Common law origins 1. unlawful killing of human being with "malice aforethought" 2. definition of "malice aforethought" i. intent to kill ii. intent to cause grievous bodily harm iii. depraved-heart murder (wanton, willful disregard of risk to human life) iv. murder committed during another felony 3. manslaughter was homicide without malice aforethought or without justification or excuse B. MPC 210 C. Intentional Killings Degrees 1. Deliberation-Premeditation Formula 2. Manslaughter: "Heat of Passion" (HOP) Killings a. Common Law Principles i. a partial "justification" that mitigates murder down 1. requires "adequate provocation to inflame passion of a reasonable man" due to unlawful conduct by provoker; typically words are not enough a. Rule of Provocation (tested objectively) i. adequate provocation ii. heat of passion iii. sudden heat no time to cool iv. causal connection between provocation, passion, and factual act

2. "misdirected retaliation rule" must kill the provoker for mitigation, other wise it's murder (247) iii. under common law, court took it out of jury's hands to mitigate down to manslaughter, applying some specific standard (241) 1. catching spouse in act of adultery 2. mutual combat 3. assault and battery b. The CL Objective Standard: Who is the Reasonable Man? i. Provocation thus requires a dual test: 1. provocation sufficient to cause particular D to lose selfcontrol 2. might cause a reasonable man to act in the manner that D did ii. Camplin court defines a reasonable man: 1. either sex 2. normal powers of self-control 3. was level of response merited by gravity of provocation? c. MPC and beyond (mainly subjective) i. MPC uses the "extreme emotional distress" (EED) standard, which is much broader than the HOP standard 1. no need for immediate, unthinking reaction 2. takes into account D's subjective outlook re: a. was D provoked? b. was provocation adequate? c. response of D is sub/ob hybrid: Is D's subjective perception one that, if a reasonable man had it, would lead to the same action? D. Unintentional Killings: Unjustified Risk-Taking 1. Common law a. CA: "abandoned and malignant heart"; "implied malice" b. Utah: "depraved indifference, i.e., callous to value of human life and utter indifference as to whether one's conduct will create the requisite risk of death" c. intent to cause grievous bodily harm resulting in unintended death is murder with malice aforethought under CL 2. MPC a. Recklessness, 2.02(2)(c) i. "conscious disregard of a substantial and unjustifiable risk" b. Accords no special significance to an intent to cause grievous bodily harm but rather treats such cases under the extreme recklessnss and recklessness standards c. Negligence is for criminal law an "objective" standard in that behavior is compared to that expected of a reasonable person in similar circumstances 3. Negligence a. Policy issues discussed (pp. 280-282)

E. Unintentional Killings: Unlawful Conduct 1. Felony-Murder Rule (CL) a. the doctrine in its unlimited form i. a felony + a killing = a murder ii. in effect, once there is a felony, the killing becomes a murder as a strict liability offense iii. also applies in commission or attempted commission of felony 1. e.g., 13 yr old girl jumps out of moving car and dies because she knows driver wants to have sex with her (308) b. the policy debate i. CL originally punished all felonies with death; therefore, felonymurder rule not much of a stretch ii. modern rationales (288-291 criticizes them) 1. deterrence: how can we deter an unintended act? 2. transferred intent: mens rea for burglary is not the same of premeditation for murder 3. retribution and general culpability: punish the "evil mind"; conflicts with trend of punishing homicide by degree of culpability iii. defense of felony murder rule 1. it is a misdemeanor to drive drunk, but if you kill someone, then it is homicide. The classification system for these two related offenses "reflects societal notions of proportionality." 2. it affirms the sanctity of human life via condemnation 3. deterrence: the rule is so simple that it is likely to be understood by felons 4. promotes conservation of judicial resources normally needed to determine grade of homicide (i.e., efficiency) iv. MPC is against the felony-murder rule c. Limitations on the Rule (not that under traditional CL these exceptions would not apply; mention that in all essays) i. The "inherently dangerous felony" limitation 1. if felony not inherently dangerous (either in abstract or in the particular instant case) then murder rule should not be applied 2. only apply it in very violent behavior; charge people with different level of homicide ii. the "independent felony" (or merger) limitation 1. if underlying felony is a step in the death, then you can't charge felony-murder a. Policy: prevents stacking charges against D's; "ratcheting up" charges. 2. Two part test is merger applies: a. are the acts that make up the underlying felony an integral part of death?

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b. does the underlying felony exhibit an intent or goal to accomplish something apart from the ultimate result of the felony? iii. "in furtherance" of a felony 1. if death is a coincidence with the crime, then no felonymurder rule a. flying a plane transporting drugs; it crashes and kills one of the occupants = no felony-murder 2. if it is a direct consequence (i.e., causally related), then felony-murder. iv. Agency 1. if death occurs by someone not acting in concert with Ds, then the Ds cannot be charged with felony murder. 2. if the deaths are not illegal deaths (e.g., justifiable homicide, self-defense), Ds cannot be charged with felonymurder (see State v. Bonner) 3. Oxendine (p. 309) 2. The "misdemeanor manslaughter" rule a. homicide during commission of a non-felony is common law involuntary manslaughter b. MPC favors abolishing this rule F. Capital Murder 1. the Constitutional and Policy Debate a. MPC 210.6: provides sentencing hearing in which aggravating and mitigating factors mat be introduced re: death penalty i. if a single mitigating circumstance exists, then, according to MPC, death should not be imposed ii. this came about after the Furman v. Georgia decision requiring that a statute needed to ensure that the sentencing authority is given adequate information and guidance b. death penalty has a long history of acceptance in both England and US, so this is against declaring it unconstitutional per se c. Dissent: as societal standards evolve, so much judicial decisions. Death must be declared unconst. for it treats human beings as things to be toyed with and discarded and removes their human dignity. (and) "the notion that retribution can serve as a moral justification for the sanction of death is highly disturbing. d. good summary of policy on pp. 324-328 i. deterrence ii. retribution iii. risk of executing the innocent 2. Substantive Limitations on the Death Penalty a. degree of participation in felony is minor (when death imposed after felony-murder conviction) b. no intent to kill c. Tison v. Arizona (good exam review case)

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i. actor who is a major participant in a felony, but who has reckless indifference to human life, nevertheless is eligible for death after a felony-murder conviction ii. Dissent: major participation may reveal a mental state, but should not be used alone to impose death iii. recklessness is much less culpable than intentional, therefore, we must punish them differently in order to maintain "the relation between criminal liability and moral culpability" VI. Rape A. Actus Reus 1. Forcible Rape a. Common law: "carnal knowledge of a woman against her will" + force Mens Rea: knowingly -sexual intercourse -unlawful, not wife -force, (physical) threats, fraud Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim's own state of mind (i.e., the burden of proof is on the victim). -w/o consent -against will -must resist (normally physically) b. MPC Mens Rea: as low as Reckless. -compels by threat -victim is incompetent -victim is unaware of the sexual act c. General principles i. Rusk v. State ii. State v. Alston a. absent evidence of force or threats to overcome will of victim to resist sex, no rape b. totality of circumstances must give rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sex d. "No" (or absence of "yes") as force? 2. Deceptions and Non-Physical Threats a. Boro v. Superior Court: fraud to gain consent for sex does not vitiate the legitimacy of that consent; therefore, no rape. B. Mens Rea 1. Mistake of Fact a. if a D entertains a reasonable and bona fide belief that V voluntarily consented to sex, then he does not possess wrongful intent that is a prerequisite for rape (majority belief) C. Proving Rape

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1. Rape Shield Laws a. deny a D right to question complainant re: her prior sexual conduct or reputation b. deny D right to present other evidence re: V's prior sexual conduct or reputation c. Policy: these laws enacted to prevent character assaults on V that were prompted by CL assumption that previous unchastity meant woman was loose and readily consented to sex 2. Four approaches to rape shield laws a. Michigan: allows evidence of prior sexual conduct with D or with others that would explain physical characteristics if judge determines that it is relevant b. Texas, federal, California: trial courts can admit reputation evidence on a case-by-case basis when it seems relevant 3. Constitutional test a. most rape shield laws pass the Sixth Amend test giving a D the right to confront his accusers. VII. General Defenses to Crimes Def. Defense: "any set of identifiable conditions or circumstances which may prevent a conviction for an offense" A. Categories of Defenses 1. Failure of Proof Defenses a. one or more elements in the definition of the offense cannot be proven 2. Offense Modifications a. all elements of offense exist, but no social harm or evil that the statute defining the offense sought to prevent i. e.g., making a ransom payment to kidnappers to save child is technically complicity in kidnapping 3. Justifications (self-defense; defense of others; necessity) a. justification represents a "superior social interest" b. justification negates the social harm of an offense 4. Excuses (duress; insanity) b. negates the moral blameworthiness of the actor; but social harm still exists (all elements of crime satisfied) 5. Nonexculpatory Public Policy Defenses a. statute of limitations guilt remains, but for public policy of fostering a more stable and forward-looking society, crime is ignored after a certain time period b. diplomatic immunity, judicial immunity, incompetence, etc B. Burden of Proof 1. Not unconstitutional to put the burden of production for affirmative defenses and also the subsequent burden of persuasion on Ds(meanwhile, prosecutor has burden of production for the elements of the crime)(450n1). a. obligation of states to define the elements of the crime

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b. MPC 1.13 recommends that prosecution carry the burden of disproving any affirmative defense raised1 by D C. Principles of Justification 1. Structure of Justification Defenses a. existence of triggering conditions permit a b. necessary (response to imminent threat) and proportional response to avert the threat i. the necessary and proportional requirements are very important 2. Self-defense a. CL General principles i.. def. self-defense (CL) a. must be an unlawful and imminent threat b. of death or serious bodily harm and c. a reasonable belief deadly or severe force only way to counter the threat and d. response is proportional ii. aggressor: cannot normally assert self-defense justification a. aggressor one who performs an unlawful act reasonably calculated to produce an affray leading to injuries or death (i.e., provokes the incident) iii. retreat rule: under CL, "retreat to the wall" before use of force a. rarely applied when D faced with deadly force iv. castle doctrine: almost universally accepted that one has no duty to retreat if attacked within one's home b. MPC 3.04 i. Deadly force not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating" (MPC 3.04(2)(b)(ii)). a. otherwise, same as CL (adds, no retreat at work) c. Policy arguments in favor of self-defense justification i. public duty a. prevent any forcible or atrocious crime ii. moral forfeiture of the right to life a. by threatening to take a life, one forfeits the right to his own life iii. the right to preserve autonomy a. in this case, the defender kills to preserve his right to life iv. right to resist unlawful aggression (when State not there in the form of police to do it for you) v. lesser evils doctrine b. "Reasonable Belief" Requirement i. at CL a. objective defined as a reasonable person in the D's situation; cf. p. 471
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forcing prosecution to disprove all possible affirmative defenses is unreasonable 14

b. info about physical attributes of all actors, D's knowledge about victim, and D's prior experiences in similar situations are all relevant to determining what was objectively reasonable for a man in D's situation to do 1. does this not open the door to allow people's prejudices to enter the consideration of the reasonableness of their actions c. imminent harm req objective test d. necessity and proportionality of response objective test ii. MPC 3.04 a. uses a wholly subjective standard, requiring jury to look only at what D believed the situation to be b. broader than imminence req: "justifiable when the actor believes that such force is immediately necessary for the purpose of protecting oneself" 1. policy: is this wise? letting people set their own standards for permissible use of force? c. however, if D formed his belief recklessly or negligently, then he could be convicted of a homicide with one of these types of MR c.. Objective, Subjective, or a Mixed Standard? (which standard to we apply to 1) imminence, 2) proportionality of response, and 3) triggering mechanism: for exam) a. State v. Wanrow 1. what is "reasonably believed" should take into account how a D's beliefs are affected by his/her gender, physical size, etc. 2. to what extent do we incorporate the D's knowledge of the V's past bad acts. 3. no specific triggering mechanism in this case iii. Battered Woman Syndrome (subjectivity) and Beyond a. State v. Norman 1. Appeals court: believes battered wife syndrome and sees it as a justification for killing in selfdefense; no imminence req, says inevitability is sufficient 2. Supreme court: harm must be imminent2 b. Should imminence be removed? 1. Use excuse (rather than justification) based on impaired rationality or volition 2. simply permit justification where circumstances merit removal of imminence req 3. Defense of Others a. the MPC 3.05 standard
2

the imminence requirement is the only thing that ensures killing in self-defense will be used as a last resort 15

i. a person is justified in the use of force against another if a. a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person and b. in the circumstances as that reasonable person would believe them to be (subjective), the third person would be justified in using such force to protect himself 1. i.e., "self-defense" by proxy c. the force employed must, of course, be proportional ii. Policy: to prohibit such a justification would increase alienation of individuals within society from each other iii. MPC 3.05 must be interpreted in light of 3.04 and 3.09. b. "alter ego" rule i. CL one is not privileged to defend to a greater degree than the person himself (i.e., if third person was not privileged to use resistive force, then anyone who assists him is guilty of a crime) 4. Defense of Property/Habitation a. deadly force rarely justified to defend mere property; non-deadly force can be justified to defend property i. except when life threatened at same time (e.g., armed robbery) ii. when threat of dispossession from house by felony b. MPC 3.06 Deadly force permitted if i. person attempting dispossession from house ii. person attempting felonious destruction or theft of property and has: a. threatened deadly force vs. actor or b. without deadly force, actor will be exposed to SBI CL: protection from any felony; California and MPC merge protection of property with protection of self except in case of dispossession; Illinois statute is more broad and permits killing after mere invasion of home. 5. Necessity ("Choice of Evils"): a utilitarian defense (p. 535) a. General Principles; CL requirements (Primarily an objective standard defense): i. D faces choice of evils (created by natural situation; coincidence) ii. harm is objective and immediate iii. causal connection between harm and conduct iv. D chooses the lesser harm (objectively determined); if harm is equal (e.g., you were faced with death and you took a life), then no justification v. no legal alternatives/no legislative (as voice of society at large) preclusion vi. situation not self created (used in some courts) v. Primarily an objective standard defense. b. MPC 3.02 (p. 530-532)

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i. (subjective) actor must believe that his conduct is necessary to avoid an evil (that is, a causal connection between actor's action and alleviation of the harm) ii. (objective) necessity must arise from an attempt to avoid an evil or harm that is greater than the evil or harm sought to be avoided by the law defining the offense charged (D chooses lesser harm) iii. (objective) balancing of evils is not committed to the private judgment of the actor a fact-finder will decide iv. (objective) the particular choice made has not been precluded by legislative act (or no legal alternatives exist) v. necessity will exculpate unless the crime involved can be committed recklessly or negligently c. Civil Disobedience: United States v. Schoon i. Indirect civil disobedience, because it attacks a symbol of harm, rather than preventing harm itself, can never be subject to necessity defense a. legal alternatives (e.g., lobbying) exist to gain what people want ii. Direct civil disobedience may be subject to it. If the act committed may reasonably believe that the action will directly affect the harm (i.e., a fairly direct causal connection). d. Necessity as Defense to Murder? i. No. The only defense to murder is self-defense or defense of a third person. ii. MPC 3.02 does not specifically exclude homicide from the "choice of evils" defense, but leaves it up to courts to elaborate the limits of the defense D. Principles of Excuse 1. Why excuse wrongdoers? a. the law is concerned for the person accused who has not made a culpable choice to break the law (utilitarian) i. culpability implies moral criticism; if a person's action does not deserve criticism, then there should be no culpability 2. Theories underlying excuses a. Causation (non-utilitarian): a person should not be blamed for conduct if it was caused by factors outside of his control i. e.g., mental illness; coercive threat b. Character: excuses should be recognized in those circumstances in which bad character cannot be inferred from the offender's wrongful conduct i. e.g., rob a bank because someone threatened to kill your kids if you didn't ii. problem: so why do we punish people with good character who make a stupid mistake? c. "Free Choice" (or Personhood): one can be punished if one entered into criminal act knowing all facts and punishments for the act

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3. Duress a. General Principles i. US v. Contento-Pachon: Three elements of duress defense: 1) (sub/ob hybrid) immediate threat of death or SBI 2) well-grounded fear that the threat will be carried out 3) no reasonable opportunity to escape the threatened harm 4) actor was not at fault in exposing himself to the threat ii. Another formulation: 1) a person unlawfully threatens actor or another person with death or serious bodily injury 2) actor was not at fault in exposing himself to the threat iii. MPC 2.09 1) offender was coerced by use of, or threat of, unlawful force [not necessarily deadly] against his person or the person of another [not just close family], and a person of reasonable firmness in his situation (sub/ob hybrid) would have been unable to resist [more restrictive mental state; since society doesn't benefit regardless of the choice, the choice MUST have been reasonably compelled] 2) no imminence requirement 3) defense unavailable if offender placed himself in the situation by recklessness or negligence b. Necessity versus Duress i. People v. Unger: prison escapee does not fit neatly into either category; but necessity (choice of evils) appears most applicable. ii. Policy: society's interests in preventing escapes must, in all but the most egregious cases, out weigh the interests of the individual defendant. iii. Necessity normally arose from some sort of natural factor (a chance coincidence) whereas duress normally arises from a human element (gun to head, etc). iv. Necessity negates AR (i.e., there is no social harm); Duress negates MR (i.e., actor has no free will for actions). 4. Voluntary (Self-Induced) Intoxication a. Commonwealth v. Graves: under traditional CL, intoxication was never an excuse for a crime; modern CL saw intoxication as a mitigating factor to drop the crime down from specific intent to general intent. i. that is, voluntary intoxication is relevant to the question of the capacity of the actor to have possessed the requisite intent of the crime charged ii. D can use his drunkenness to prove that he did not have the requisite MR for the specific intent crime b. Policy: to permit intoxication to be an excuse, it would open the door to frauds and perjuries by persons to enable them to escape prosecution i. an indiv who voluntarily ingests substances that create a loss of control over his actions, must intend the consequences

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c. MPC 2.08 i. intoxication is not a defense unless it negatives an element of the offense ii. it does not negative recklessness iii. intoxication is not mental disease iv. involuntary intoxication or pathological [grossly excessive] intoxication is a defense d. chronic abuse of intoxicants may, however, create a mental disease, thus permitting an insanity defense 5. Insanity a. Procedural context i. Competency to Stand Trial a. must be able to consult with a lawyer "with a reasonable degree of rational understanding" b. concern is only with person's mental state at time of trial, not at any other moment c. presumption that you are competent d. a D must prove incompetence to stand trial by a preponderance of the evidence i. if court notes possible lack of competence, then court can raise the issue sua sponte ii. Pre-trial Assertion of the Insanity Plea a. insanity is a defense to the MR, not the AR of the crime iii. Burden of Proof at Trial a. insanity is an affirmative defense b. presumption of sanity c. most states place the burden of persuasion on the D i. D must first make a prima facie showing that they are insane (mention this 1st step) ii. then evidence must be presented a. if burden of persuasion is on prosecutor, then he must show the D is sane d. burden is normally preponderance of evidence iv. Post-trial Disposition of Insanity Acquittees a. NGRI (not guilty by reason of insanity) i. most states: automatic commitment b. GBMI (guilty but mentally ill) i. committed until sane; placed in prison for remainder of term v. New Strategy for Civil Commitment a. repeat sex offender; still viewed as a danger and has perverted impulses; state puts him in mental hospital b. Why Excuse the Insane? i. One who is truly insane cannot be rehabilitated or deterred, and morally we should not seek retribution against him ii. A man who cannot reason cannot be subject to blame.

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iii. The law of criminal responsibility has its roots in the concept of free will; when one's free will is impaired, should they be subject to that law? c. Five tests for Insanity (State v. Johnson) -Two prongs: prove a mental defect, and then . . . -Some test are cognitive, others volitional, others mixed; know which! -All except federal rule are proved by preponderance of evidence i. M'Naghten Rule a. defect of reason, from a disease of the mind, made D not know the nature and quality of his act b. if he did know the nature and quality, then he did not know it was wrong. i. criticized because did not recognize degrees of incapacity (i.e., it's all-or-nothing); requires a high degree of incapacity ii. if "know" is interpreted narrowly, insanity difficult to prove iii. if "know" is broadly, then insanity easier to prove iv. State v. Wilson a. legally wrong is narrower b. morally wrong is broader ii. "Irresistible Impulse" or "Control" Test a. insane if, at time of offense, loss of control caused by insane impulse (volitional); know action is wrong i. criticized for its all-or-nothing nature and a. if there had been prior resistance to the impulse, the test would fail requires total incapacity ii. excludes crimes not committed in a fit of rage iii. Durham or "Product" Test a. crime would not have occurred but-for (i.e., it was a product of the) mental disease or defect (no separation of volitional and cognitive aspects) i. failed to define disease or defect ii. abandoned because only needed to show mental illness; expert witnesses tended to decide the case, rather than jury iv. MPC Test, 4.01 (M'Naughten + Impulse test) a. a person is not responsible for conduct if, at time of conduct, as a result of mental disease or defect, he lacks substantial (jury issue) capacity (not all or nothing; not total incapacity): i. either to appreciate the criminality [wrongfulness] of his conduct (cognitive

20

impairment) [NB, MPC by its language can recognize either moral or legal wrongs] ii. or to conform his conduct to the requirements of the law (volitional impairment) a. no irresistible impulse req. v. Federal a. as a result of severe mental disease or defect, D was unable to appreciate the nature and quality or the wrongfulness of his acts (i.e., similar to M'Naghten) b. D must prove by clear and convincing evidence d. M'Naghten and the MPC in Greater Detail i. Knowing/Appreciating the "Wrongfulness" of One's Actions (the cognitive requirement): State v. Wilson a. Public Morality Test: D lacked substantial capacity to appreciate the wrongfulness of his actions if, at time of act as a result of mental disease or defect, "he substantially misperceived reality and harbored a delusional belief that society, under the circumstances as the defendant honestly but mistakenly understood them, would not have morally condemned his actions." (subjective/objective hybrid). i. this is how court says that MPC should be interpreted ii. Role of Expert Witnesses: State v. Green a. e. Should Insanity Defense be Abolished? i. Yes: too many wrongdoers use it to escape punishment ii. and insanity supposed to remove stigma of criminal conviction? is not insanity a stigma? convictions should simply be a determination of dangerousness to which community must respond iii. traditional policy argument against maintaining (634) iv. No: it is rarely used and even more rarely successful 6. Diminished Capacity (many jurisdictions removing this) a. permits D to introduce evidence of mental abnormality at trial i. either to negate a mental element of the charge (MR variant)3 a. thereby exonerating D ii. or to reduce the degree of the crime for which D may be convicted, even if conduct satisfied all other reqs of higher charge (partial responsibility); a form of insanity defense (643) b. State v. Wilcox i. diminished capacity most useful in jurisdictions that use the strict M'Naghten rule ii. where M'Naghten is abandoned or broadened, not as helpful iii. still, court holds that it is too subjective and does not draw a bright line the way the insanity defense does (647)
3

NB: Some say that this should not be considered a form of insanity defense, but is rather simply a D asserting his constitutional right to present evidence to deny certain elements of the crime; in this case, the MR requirement (642)

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a. also, if Dim Cap retained, people could be in jail for a really short time, when they "deserved" to be in their for life b. allows holes in sentencing c. MPC 4.02 i. permits introduction of mental disease or defect evidence whenever it is relevant to prove or disprove the existence of any mental state. ii. recognizes partial responsibility variant a. e.g., extreme emotional distress VIII. Inchoate Offenses Spectrum of criminal offenses: solicitation conspiracy attempt substantive crime A. Overview 1. MPC 5: deals with inchoate crimes of attempt, solicitation and conspiracy B. Attempt 1. A person is guilty of attempt by MPC if, acting with the MR otherwise required for commission of the crime, he: a. purposefully engages in conduct that would be a crime if attendant circumstances were as he believes them to be or b. assumes that the crime will be fulfilled even if he does nothing else or c. performs act or omission that is a substantial step in the course of conduct planned to culminate in his commission of a crime 2. Forms of attempt: a. incomplete: only some elements of crime realized before interrupted b. complete: all elements realized but unintended result (e.g., shoot gun at person, but bullet misses) 3. Merger operates a. i.e., cannot be convicted of attempt if offense was completed b. however, attempt is deemed a lesser, included offense 4. Policy: attempt probably offers little specific deterrence, but it does permit law enforcement officers to intervene before an individual can commit a completed offense 5. MPC 5.05 Grading inchoate crimes a. holds that except where completed offense is punished by death, attempt should receive the same punishment as completed offense 6. Components of Attempt: a. Mens Rea: (as with all inchoate crimes, specific intent; purposeful is req'd) i. MPC: have same level of culpability as completed crime and 1. take a substantial step to completion: tests 2. engage in conduct that would be a crime if circumstances were as actor believed them to be

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3. Causing a particular result is an element of the crime, and actor does or omits something with purpose or belief it will cause that result ii. CL - must have highest level of intent for a conviction of attempt 1. e.g., attempted murder can only be successful if the MR was intent to kill (not reckless) 2. Ensures that only obviously culpable receive this high punishment iii. MR: can be stretched into several steps 1) conception of crime 2) evaluating idea 3) taking concrete steps toward actualizing crime; plan b. Actus Reus i. AR: when does this attach? 1) discuss with 3rd party: no 1) preparations: no 2) substantial step 3) 1st step (e.g., walk into the bank) 4) penultimate step (still not completed attempt) 5) courts have held that an appreciable fragment of the crime must have been committed and would be completed if not interrupted by circumstances independent of the attempter ii. preparation vs. perpetration (713n5); mere preparation is not enough: CL tests (see 716-717 for examples) 1. physical proximity4 test i. overt act must be proximate to completed crime or directly tending toward completion of crime or amounts to commencement of consumation 2. dangerous proximity i. the greater the gravity and probability of the offense, and the nearer the act to the crime, stronger the case for calling it attempt 3. indispensable element test i. emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control ii. if involving a conspiracy, one member cannot be guilty of attempt until the other performs his part of the crime5 (see Peaslee) 4. probable desistance test i. conduct is attempt if, in ordinary/natural course of
4 5

how close in space and/or time you are to final overt act of the crime Attempt is a derivative offense (i.e., everyone has to attempt to get to his portion of the crime. Under accomplice, however, he would probably be guilty of something.

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events, it will result in the crime intended ii. would go ahead with criminal conduct, but-for the intervention of another force 5. abnormal step test i. conduct goes beyond the point where a normal citizen would think better of his conduct and desist 6. res ipsa loquitur/unequivocality test i. conduct manifests an actor's intent to commit a crime ii. this is the most generous of the tests (e.g., acts that would be attempt in MPC are not attempt under this test; cf McCloskey) iii. act that constitute AR must be intentionally performed (i.e., there must be specific intent to qualify as attempt) 1. can an omission constitute AR for attempt? a. Under MPC 1.13(5) "omission" can equal conduct, therefore, under 5.01(1)(b) omission can be corroborative of a criminal purpose. iv. MPC: substantial step6 tests a. possession of materials to commit crime and can serve no lawful purpose b. possession at or near place of commission that can serve no lawful purpose c. lying in wait; searching for victim d. enticing or seeking to entice victim to intended spot of commission e. reconnoitering the place contemplated for commission of crime f. unlawful entry into place where contemplated to commit crime g. soliciting an innocent agent to engage in conduct constituting an element of the crime v. CL vs. MPC tests 1. proximity tests focus on what remains to be done 2. substantial step tests focus on what has already been done i. this tends to extend liability for attempt ii. does not impose liability for remote preparatory acts 7. Special Defenses to Attempt a. Impossibility at CL (US v. Thomas) i. circumstances beyond accused's control make it legally impossible to commit a crime, there can be no attempt to commit the substantive offense e.g., no victim in being; i.e., woman dead, so can't rape her
6

"strongly corroborative" of the commission of crime (see circumstances listed in outline)

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even if penetration [no SH] however ii. a physical impossibility unknown to accused rendering the accomplishment of crime impossible retains criminal attempt (impossibility in fact) [punishable as attempt in majority of jurisdictions] e.g., can't get it up, so no rape possible [no complete AR] iii. MPC does not permit this defense (5.01(1)(a)) a. however, if actor thinks he violated law, but no such law exists, he can't be convicted merely for his faulty "criminal" intent = pure legal impossibility (750n7) b. Abandonment at CL and MPC (McCloskey) i. cannot have begun commission of crime ii. must voluntarily abandon course toward crime 1. MPC 5.01(4) codifies this: "it is an affirmative defense that actor abandon his effort to commit the crime under circumstances manifesting a complete and voluntary renunciation of criminal purpose" 2. renunciation cannot be from fear of being captured or motivation from external circumstances iii. only applies to incomplete offenses [?] 1. if SH has resulted before target offense is completed, then we may refuse to apply abandonment (755n2) iv. cannot renunciate a completed attempt; but MPC permits raising of the defense until the point of the penultimate step of attempting the target offense C. Assault 1. CL attempt, coupled with present ability7, to commit battery; later included mere menacing (without present ability to inflict harm) a. battery: use of force to cause injury to another 2. MPC 211.1 -omits requirement of present ability to succeed; brings assault into the same standard of attempt (NB: must have a substantial step present) -no such thing as attempted assault under MPC a. Simple assault i. intentional/reckless infliction of bodily harm or ii. negligent infliction of harm w/deadly weapon or iii. put another in fear of imminent SBI b. Aggravated Assault i. intentional/reckless infliction of infliction of injury with extreme indifference to value of human life8 ii. intentional attempt to cause injury to another with a deadly weapon
7

e.g., Under CL, pointing an unloaded gun an pulling trigger is not assault, but can be attempted murder. Assault is much stricter and requires present ability to inflict harm; attempt is easier to prove. 8 group all crimes based on "value of human life"; depraved indifference, etc into groups

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c. Reckless endangerment i. recklessly engages in conduct that may or does place others in danger of death or SBI 3. No such thing as attempted assault, for assault is an attempt D. Solicitation 1. CL -asking, enticing, inducing, or counseling of another to commit a specific crime or specific type of crime i. aka, an attempt to conspire ii. solicitation must actually be communicated to other person 2. MR is purposeful, i.e., specific intent 2. AR is the communication (AR and MR prove each other; circular) 3. MPC 5.02 i. solicitation merges with the latter offense if it is committed or attempted ii. permits conviction for solicitation even when D does not complete the communication, but his conduct was designed to effect such a communication iii. abandonment is an affirmative defense to solicitation iv. solicitation punished at same level as target crime 4. know distinction on 763n4 good review problem, 764n7 E. Conspiracy: an agreement between two or more persons express or implied to do either an unlawful act or a lawful act by unlawful means; MPC 5.03 is the same except it requires an overt act in furtherance of the agreement 1. Mens Rea a. two-fold, bifurcated specific intent required i. intent to combine with others ii. intent to accomplish the illegal objective b. intent must be express, not implied (779) c. mere knowledge of another's criminal acts is not the same as purpose or intent to form an agreement d. attendant circumstances (e.g., if crime is "conspiracy to assault a police officer," do the accused need to know it was a cop and not just some random guy?) e. by the Pinkerton doctrine (769), one is liable for all substantive offenses carried out by fellow conspirators in furtherance of the conspiracy and reasonably foreseeable until one takes an "affirmative action" to withdraw from the conspiracy i. this CL doctrine makes minor participants guilty ii. MPC disfavors punishing minor parties f. establishing an agreement i. show a tacit, mutual understanding to accomplish unlawful act g. MPC 5.03 i. bifurcated specific intent

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2. Actus Reus a. the crime is complete upon formation of the agreement i. at CL - does not even require a substantial step toward attempt to convict, but often need it to prove at trial ii. agreement can be tacit (look at circumstances; i.e., circumstantial evidence) a. present at scene b. relationship with perpetrators c. with perps before and after d. knowledge of commission of the crime iii. some courts hold that the agreement can occur as the criminal act begins in process (Azim); while others hold that there must be a clear agreement before the criminal act begins (Cook) b. completed offense is a separate crime i. conspiracy does not merge with substantive crime when conspiracy is on-going (let's rob banks together) 1. exception under MPC 1.07(1)(b): if conspiracy for a single crime, then it merges c. MPC i. requires an overt act (much less than substantial step; and often less than basic preparation) 1. exception: no overt act req'd for conviction when target crime is a first or second degree felony (i.e., when you have a serious crime) ii. punished at same level as target offense d. general considerations i. aiding and abetting is not the same as conspiracy 1. key: was there prior planning? ii. conspiracy often proved by circumstantial evidence 1. association of alleged conspirators 2. knowledge of commission of crime 3. presence at scene of crime 4. participation in object of conpriacy 3. Bilateral or Unilateral? a. bilateral: two or more people must actually agree to participate (a feigned agreement is not sufficient AR) i. if all alleged conspirators are tried in a single trial and only one is convicted, then the charge cannot stand b. unilateral: a single person intends to agree to a conspiracy and is thus guilty regardless if his agreement is reciprocated i. unilateral conspiracy is similar to solicitation ii. MPC uses unilateral theory c. courts disagree over which to apply i. issue normally arises when one of the parties is an undercover agent who has no intention of truly agreeing

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1. policy: we should permit the unilateral theory because it is a way to get dangerous, antisocial people off the streets 4. Scope of an Agreement: Party and Object Dimensions a. can be a member of conspiracy even if: i. identities of fellow conspirators unknown and ii. not aware of details of the plan of operation b. chain conspiracies9 i. inference of agreement easier here ii. everyone has a community of interest in that 1. the success of one member's part is dependent upon success of the whole enterprise 2. therefore, lack of communication or contact between the members is not a bar to conviction c. wheel conspiracy i. there exists a hub, or common source of conspiracy who ii. deals individually with different persons ("spokes") who do not know each other iii. inference is more difficult because the spokes are less likely to have a community of interest or a reason to know of each other's existence because each spoke's success not dependent on other spokes iv. community of interest test (to show an overarching conspiracy; not just a bunch of individual conspiracies to which the hub is party) 1. each spoke knows that the other spokes exists 2. each spoke realize that all spokes together have a community of interest d. ongoing conspiracy i. when a groups of people commits various illegal acts over time, so long as they are in furtherance of an original goal, there can be only one count of conspiracy against them ii. this can be overridden by statutes addressing conspiracies to commit specific illegal acts (814n1) e. MPC i. knowledge that a co-conspirator has conspired with other, even unknown parties, to commit the same crime10 makes D guilty of conspiracy with those other parties ii. multiple crimes: only implicate a single conspiracy charge if: 1. the crimes are object of the same agreement or 2. a continuous conspiratorial agreement 5. Defenses a. abandonment is an affirmative defense

usually involve distribution of narcotics or other contraband in which there is successive communication or cooperation 10 NB: under CL, it can be any number of crimes; MPC is the SAME crime

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i. if withdrawal is complete and voluntary and accomplished before commission of an overt act 1. i.e., conspiracy is complete upon the commission of the overt act 2. if withdrawal done after the overt act, then D is guilty of conspiracy, but has no liability for future acts committed by the remaining conspirators ii. MPC 5.03(6) 1. renunciation is an affirmative defense if such renunciation thwarted the success of the conspiracy b. Wharton's Rule i. where substantive crime is defined as requiring more than one person, a prosecution for the substantive offense rather than a conspiracy must be brought 1. e.g., adultery, incest, bigamy, dueling 2. policy: as Wharton's Rule normally applied to offenses not likely to harm anyone outside of the two participants, it is not necessary to apply it to crimes designed to harm larger numbers (e.g., gambling statute) ii. third-party exception: when more people than necessary are present to commit the crime, then conspiracy may be charged iii. exception: no conspiracy where legislature intended only to punish one of the parties for the crime (e.g., 820ff) iv. modern courts 1. Wharton's Rule is merely a presumption rather than a set rule 2. often permit trial on conspiracy and substantive charge, but if convicted on the substantive charge, then the conspiracy charge is dropped c. MPC 5.04 i. if one person in alleged conspiracy is immune to prosecution (or mentally incompetent), this will not bar the other person from conviction for conspiracy NB: don't have to be at scene of crime to be convicted as a conspirator IX. Accomplice liability accomplice liability: no agreement; just intent for the crime and encouragement

Extra stuff: Threat B a communication objectively indicating a serious intention to inflict SBI (MR)

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B communication is also conveyed for the purpose of furthering some goal through the use of intimidation (AR) - must intimidate person to whom threat is directed (see Alkhabaz; Green spent a lot of time on this)

NB: remember that if statute has a mens rea missing, can be filled in with any level of intent other than negligence.

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