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Introductory Information
Nature of Criminal Law: Criminal sanction: pronouncement of the community s condemnation of a certain activity Burden of Proof: (this is what really separates crim. law from civil law) 1. In criminal law, beyond a reasonable doubt o The state is the one prosecuting the defendant o Always start with a presumption of innocence y Owens v. State (pg 14): defendant was arrested for drunk driving, he was in his car in the driveway passed out, and there were open beer cans in the car  under the Due Process clause: innocent until proven guilty  Every element of the crime has to be proven by prosecution to be guilty; you can't just have one piece of evidence that is proven--PROVEN GUILTY BEYOND REASONABLE DOUBT 2. In civil law: beyond a preponderance of evidence o The plaintiff starts with the Burden of Proof, sometimes it will switch to defendant Burden of Proof has two aspects: o Burden of production (laying out case) o Burden of persuasion (persuading jury to believe your side of the case) Jury Nullification- even though the prosecution has proved its case beyond a reasonable doubt, the jury refuses to convict of its own reasons Jury has power to do this legally y Advocates: people s ability to nullify verdict is the conscience of the community speaking; it s the people's choice to protect defendant from government oppression y Critics: even though the jury has this raw power to nullify the law, they shouldn t exercise it loosely or maybe even at all y In most jurisdictions, not required to make a jury nullification argument to the jury o State v. Ragland (19): guy appealed alleging instructions that if he had weapon during robbery they must convict of possession were improper  The jury does not have to be informed of its nullification power  Court decides that nullification should not be advertised and should be limited Theories of Punishment: - (1) Utilitarianism: the object of law is to increase total happiness of the community o Punishment serves a useful purpose but should be proportionate to crime o Forms of Utilitarianism  General Deterrence punishment sends message to rest of society (modern view)  Specific Deterrence punish the D to discourage them from committing crimes again  Rehabilitation prevent future crime by reforming offenders - (2) Retribution: just desserts the punished deserves a response to his wrongdoing, he is punished because of the wrongdoing - (3) Mixed Theories - The Queen v. Dudley and Stephens (48): men at sea ate teenager, and are being tried for murder. o Apply different theories of punishment (both ut. and retrib) punish survivors = retrib. Proportionality of Punishment punishment should be proportional to the seriousness of the crime - Utilitarian meaning no more pain that necessary to fulfill law s deterrent function - Retributive meaning punishment takes into account actor s level of culpability - 8th Amendment- ban on cruel and unusual punishment

Coker v. Georgia (pg. 72): D was in jail for life, he escaped and raped a woman, and was sentenced to death by the trial court sentence overturned as too harsh because penalty of death for aggravated rape is disproportional, death penalty should be reserved for cases of homicide o If maybe only for child rape, still wrong child might feel responsible for death and no incentive to keep child alive o Court s opinion is retributive- you can t take a life if a life wasn t taken. Grossly disproportionate to the crime committed. o Note: generally, there is a ban on the death penalty for non-homicidal crimes. Ewing v. California (pg. 81): defendant sentenced to 25 years for stealing 3 golf clubs under 3 strike rule o There is nothing grossly disproportionate in applying a the three strike rule, policy considerations for punishing career criminals is acceptable o Court has ruled there is only narrow proportionality principle outside of death penalty cases

Principle of Legality- a person may not be punished unless his conduct was defined as criminal before he committed it; basically exists so judges don t do whatever they want when interpreting and making decisions. Judges have to stick to some principles. - Ex Post Facto Clause: constitution prohibits enactment of laws that would made a crime out of conduct that was lawful at the time is was performed or increasing punishment for a crime committed before the law took effect - Void for vagueness: courts prohibited from expanding the scope of the criminal statutes- laws that are too vague may not be enforced Fair Notice : statute must be sufficiently clear so that an ordinary person can understand its meaning - Criminal statute should not be so broad that it could be discriminately employed by law enforcement officers - Should judges extrapolate or do they run risk of over-interpretation? Selective enforcement : based on broad or vague terms of law, possibly unfair application of law o City of Chicago v. Morales (pg. 113): ordinance outlawed street gang members from loitering with others in public places, ruled unconstitutional (voided for vagueness- a person may not know when their conduct is illegal)  (1) ordinance could fail to provide notice of what activity creates liability  (2) could be discriminately enforced (misuse against minorities)  (3) could authorize/encourage arbitrary/discriminatory enforcement of law - United States v. Muscarello (pg. 120): guy charged with carrying a weapon during a felony, gun was in bed of pickup truck (competing precedent and information) o Rule of Lenity (common law, not under MPC) In cases of ambiguous law the court must choose interpretation that favors the defendant (just because another explanation exists does not make it an important tiebreaker)

Actus Reas
Definition: the physical, or external, component of the crime- what society doesn t want to occur The first two elements of an offense: 1) voluntary act of legal omission, and 2) social harm. Examples: 1. Crime of murder- AR is the taking of another s life; 2. Criminal battery- AR is the harmful or offensive contact upon another The act must be voluntary. An act consisting of a reflex or convulsion does not give rise to criminal liability

Voluntary Act: - General Rule- person is not ordinarily guilty of a criminal offense unless his conduct includes a voluntary act. Both a CL principle and a MPC principle - Common law definition: a willed contraction or bodily movement by the actor; voluntary conduct (act or omission) + social harm (defined below) o Sufficient that a person s conduct included a voluntary act, all aspects of the conduct do not have to be voluntary o Slightest muscular contraction or bodily movement constitutes act (ex: slight movement of finger to pull gun trigger) - MPC: no person can be convicted of crime absent conduct of which he is physically capable o 2.01 (2): bodily movement that otherwise isn t product of the effort or determination of the actor, either conscious or habitual. o MPC doesn t provide a definition of voluntary act - Utilitarianism: cannot deter involuntary acts, useless to punish involuntary actors - Retribution: person who did not intentionally act in way that causes harm doesn t deserve punishment **Time Framing: a tactic courts and lawyers can use to determine if the act was voluntary or not - Martin v. State (pg 128): police arrested Martin at his home (where he was intoxicated) and took him to a public highway. Martin was charged with appearing in a public place in an intoxicated condition. o A criminal conviction requires a voluntary act no actus reus here o Broad Time frame: he voluntarily became intoxicated o Narrow Time frame: his appearance at the public place was involuntary. - State v. Utter (pg 130): D had been drinking all day when his son approached him from behind. D stabbed and killed his son. D claims his actions were a conditioned response. As a WWII veteran, he reacted violently twice before when he was approached form behind. o A conditioned response is not a voluntary act b/c not willed action and likely could not sustain conviction (here the conviction was sustained because of a lack of evidence) Involuntary Act: - CL: can negate action or serve as affirmative defense (act done in a state of unconsciousness negates the men s rea element of a crime) - MPC: extends CL to acts done during sleep and hypnosis Omissions- (what he/she didn t do; an absence of conduct when D has a legal duty to act) Generally, we do not punish individuals for failure to act, must have neglected LEGAL duty - General Rule (both CL and MPC): ordinarily a person is not guilty for failing to act, even if such failure permits harm to occur to another, and even if the person could act at no risk to personal safety. (ex: D, a swimmer, has no criminal responsibility for a child drowning in a pool. D may have had a moral duty, but he is guilty of any crime bc he lacked a legal duty to act. - Exceptions to the General Rule: A person has a legal duty to act in limited circumstances, if he is physically capable of doing so. Failure to act may constitute a criminal breach (MPC 2.01(1) and CL): 1. Statutory Duty: where a statute expressly imposes a duty (ex. can t hit and run, must stop). Such an offense may be characterized as a crime of omission . (ex: states commonly require parents to provide food and shelter for their children. Failure to do so is a crime under MPC 230.4)

2. Duty by Status (special relationship): duty to protect another with whom he has a special relationship (parent-child, spouse-spouse, master-servant) 3. Duty by Contract- where one has assumed a contractual duty to care for the other (ex: nursing home, lifeguard) 4. Duty by Voluntary Assumption: where one has assumed voluntary care for another must continue to assist if a subsequent omission would place the victim in a worse position than if the volunteer had not assumed care at all. 5. Duty by Risk Creation: one who created a risk of harm to another must thereafter act to prevent ensuing harm (ex., if you accidently start house fire you could be charged with arson if you don't act) People v. Beardsley (pg 136): married man s mistress overdosed, Defendant left her in care of another, she died, wants to charge him with manslaughter for not helping her o For liability for an omission the actor must have a legal duty to the individual harmed o Supreme court says there was no legal duty here bc they didn't have a formal relationship like H/W Barber v. Superior Court (pg 142): man taken off life support continued to breath, doctors removed feeding tubes, he died o Did the doctors have a legal duty to continue treating the patient while he still had brain activity? Court says that failure to provide heroic medical care to keep an individual alive is not an actionable omission o Social result of the case: if these doctors were found guilty, doctors in general might be scared to give honest medical advice to their patients and patients families

Social Harm the destruction, injury to, or endangerment of some socially valuable interest - Categories: o Result elements - some crimes prohibit a specific result (i.e. death of another) o Conduct elements - prohibition of specific conduct whether or not harm results (i.e. drunk driving) o Attendant circumstances - a result or conduct is not an offense unless certain attendant circumstances exist. (Ex: burglary must occur to a dwelling house ); AC is a fact that exists at the time of an actor s conduct, or at the time of a particular result, and which is required to be proven in the definition of the offense. - Misdemeanor: a less serious offense usually punishable by fine, penalty, etc. not prison - Felony: serious crime, usually prison for one or more years or maybe death - Misprision of a felony: statute prohibits active concealment (when police come to you), but not simple nondisclosure of a known felony

Mens Rea
Nature of Mens Rea: - Mental state required to commit a crime- the requirement that there be a culpable state of mind. - Broad Culpability definition- a person has acted with mens rea if they committed the actus reus with a vicious will, evil mind, or moral blameworthiness a culpable state of mind o Moral blameworthiness, the acts were done in a manner that demonstrated bad character, malevolence, or immorality o Many common law crimes did not provide a specific men s rea term so the culpability standard was the one that was used. - Narrow Elemental definition- a person commits the actus reus with the particular mental state set out expressly in the definition of the crime o lemental definition of mens rea o a particular state of mind that is required for the commission of that crime o ex: intentionally, willfully, wantonly, etc - Regina v. Cunningham (151)- guy removed meter from gas piping, woman next door poisoned, statute required the action be malicious (trial judge defined malicious as wicked = culpability definition) o Malice requires the intent to cause the harm or recklessness as to its likelihood to occur = elemental definition States of Mind = Intent (Common law): - Intentionally (willfully): o (1) it was the conscious objective to cause the result o (2) the actor knew that the result was virtually certain to occur because of the conduct o Transferred Intent Doctrine applies: person acts intentionally if the result of her conduct differs from which she desired only in respect to the identity of her victim y People v. Conley (pg 153): D tried to hit one guy with a bottle, but hit another person instead, caused serious and permanent damage; what to take from this case: conscious awareness that a certain result is practically certain to follow from an action can constitute knowledge o General Intent - an offense that merely requires a culpable state of mind, the definition of the offense may not even refer to a mental state  Ex) battery o Specific Intent - An offense that explicitly requires culpability of a certain mental state or more culpable state of mind  Ex) possession of pot with intent to sell - Knowledge or Knowingly: a person acts knowingly regarding an existing fact if she: o (1) the actor is aware of the fact, or o (2) correctly believes that the fact exists, or o (3) suspects the fact and purposely avoids learning if suspicion is correct ( willful blindness ) y State v. Nations (165): 16 yr old dancing for tips, owner of the club claims he didn t know her age  willful blindness requires awareness of a high probability that the attendant circumstances exist  at CL knowledge does not include willful blindness - the MPC includes willful blindness as knowledge - Recklessly: o The actor consciously disregards a substantial and unjustifiable risk that their conduct will cause social harm (Requires subjective awareness of the risk (criminal negligence merely requires that the actor should have known)) - Negligently (Criminal Negligence, gross negligence culpable negligence): If the actor is aware (or should be aware) that her conduct creates a substantial and unjustifiable risk of social harm

The actor should be aware that their conduct creates a substantial and unjustifiable risk of harm to others o Idea of a reasonable person in the same or similar circumstances. . . the negligent person is failing to act as a reasonable person would. o A negligent actor is not blamed because she possessed a wrongful state of mind, but because she failed to live up to the objective standard of conduct of a reasonable person o Three factors come into play when determining whether a reasonable person would have acted as the defendant did (OBJECTIVE STANDARD TEST): Hand, B < P x L = N  (1) the gravity of harm that foreseeably would result from the defendant s conduct;  (2) the probability of such harm occurring; and  (3) the burden to the defendant of desisting from the risky conduct. Maliciously: the actor intentionally or recklessly causes the social harm of the offense. o (1) an actual intention to do the particular kind of harm that in fact was done, or o (2) recklessness as to whether such harm should occur or not  (i.e. the accuses has foreseen that the particular kind of harm might be done, and yet has chosen to take the risk of it) o

MPC (2.02, General Requirements of Culpability, p. 980): - 2.02 (1): in general, a person is not guilty of an offense unless he acted purposefully, knowingly, recklessly, or negligently, as the law requires with respect to each material element of the offense - The MPC provides 4 culpability terms o (1) Purposely (subjective) - it was the conscious objective to cause the harm. MPC 2.02 (2) (a) (1) o (2) Knowingly (subjective) - the actor is practically certain that the results will follow from their conduct  T: knowingly causes a result if the actor is aware that the result is practically certain to occur from her conduct. MPC 2.02 (2)(b)(ii)  If the actor is aware that the circumstance exists OR if she is aware of a high probability of its existence, unless she actually believes that it does not exist. 2.02 (7) (MPC s version of willful blindness)  A person acts knowingly in regard to attendant circumstances if they are aware of a high probability of its existence  Note the MPC breaks up traditional common law intent into purposely and knowingly  People v. Conley (151) - guys tried to hit one guy with wine bottle, hit another guy, broken jaw and other serious and permanent damage y Conscious awareness that a certain result is practically certain to follow from an action can constitute knowledge (transfer of mens rea) o (3) Recklessly (subjective) - conscious disregard of a substantial and unjustifiable risk that the material element exists or will result from the conduct  One is reckless when the risk taking involves a gross deviation from the standard of care that a reasonable person would observe in the actor s situation 2.02 (2) (d)  Measure the gravity of foreseeable harm, the probability of occurrence, and the reasons for taking the risk. o (4) Negligently (objective) - the actor should be aware of a substantial and unjustifiable risk; the actor is not aware of the risk but should be. o ***difference between reckless and negligence: with recklessness, the actor is consciously aware of the risk but proceeds anyway; with negligence, the actor is not aware of the risk but should be. o Where the statute does not include a culpability element, the MPC imposes at least a recklessness requirement o Must act with the requisite culpable state for EACH MATERIAL ELEMENT unless a contrary purpose plainly appears o Uses elemental meaning not culpability meaning

A person commits the actus reus with the particular mental state set out expressly in the definition of the crime

**Differences between CL and MPC: MPC requires proof of men s rea (p, k, r, or n) as to each material element of the offense. This contrasts CL, where there might be a men s rea requirement as to the one element but no men s rea as to other elements. . . MPC- each actus reas element should be covered by some men s rea requirement Knowledge: Willful blindness: Common law: finding of knowledge of an attendant circumstance when the defendant is guilty of willful blindness (deliberate ignorance, according to probable existence of element); MPC 2.02 (p. 981): if D is aware of a high probability of the existence of the fact in question and fails to recognize it or investigate fact, then acted knowingly - State v. Nations (161)- 16 year old dancing for tips, owner did not know age o willful blindness requires awareness of high probability that the attendant circumstances exist o At common law knowledge does not include willful blindness Statutory Interpretation: a common issue in criminal litigation is whether the mens rea term applies to all or only some of the actus reus elements - Legislative intent courts will try to resolve ambiguities by looking at what the legislature intended - Position of mens rea term in definition - Punctuation - Unless there is evidence to the contrary, the courts will assume that mens rea elements do NOT refer to attendant circumstances elements of the crime - Where the statute codifies something that was feature of the common law it is assumed that the legislature intended to codify all elements of the common law, unless there is evidence to the contrary Strict Liability: satisfaction of the actus reus alone is sufficient for criminal culpability; no mens rea element need be satisfied - Definition: strict liability in nature of commission of the actus reus of the offense, without proof of a men s rea, is sufficient to convict the actor *Common Law: conditions on when strict liability is allowed: - The conduct that is regulated is typically not morally wrongful, but is in some way dangerous (ex: selling alcohol to minors) - The maximum punishment for the conduct is a fine or minor imprisonment o Staples v. United States (177): D did not register gun. The statute did not specify a mens rea term, but because there was a harsh penalty for that crime- it was not intended to be a strict liability crime, so the court inferred a mens rea o Due to harsh penalties it is assumed that the legislature did not intend to do away with the mens rea requirement - No social stigma is attached to violations - There is clear intent by the legislature to apply strict liability- otherwise the court will interpret a mens rea term. o Garnett v. State (186): legislative intent was clear that MD legislature intended statutory rape to be a strict liability crime- so mentally slow man who had sex with 14 yr old girl was guilty even though he did not know her age  public welfare offenses : administrative rules, usually light punishments, the conduct is wrongful only because it is prohibited, violations often threaten safety of others in society  On very rare occasions strict liability is imposed to a non-public welfare offense o Ex) Statutory rape  There is a strong presumption against strict liability, courts will not merely assume that a statute intended to vacate the mens rea requirement without evidence to that fact

*MPC (2.05, p. 983): strict liability is allowed only when the legislature is clear on their intent to apply that principle to the conduct; allows strict liability only for violations and not crimes (fines not jail time) o MPC requires aspects of mens rea to be met Staples v. United States (174): guy had an AR-15 modified to be automatic, claims ignorance of modification, sentenced to 5 years, overturned o Due to harsh penalties it is assumed that the legislature did not intend to do away with the mens rea requirement (no strict liability) not a public welfare offense like having grenades Garnett v. State (184): mentally disabled guy slept with a 14 year old who claimed she was 16 o Legislative intent of statutory rape shows that the legislature sought to eliminate the mens rea element of that crime so strict liability found

Mistake of Fact: - Many states follow MPC in requiring that mens rea component be applied to each element of offense - Common Law: If one is mistaken over a fact relating to a specific intent for the crime, the mistake may be used as a defense. *First ask, was this a specific or general intent crime? o Specific Intent offenses: a mistake of fact negates the specific intent; a person is not liable even for an unreasonable mistake of fact  Even an unreasonable mistake of fact may exculpate the actor, assuming the mistake negates the men s rea required for the offense  Ex: walking your dog in a park is illegal. But if you didn t know you were in the park (thought the field you were in was outside the park, or something), then you might not be found guilty (mistaken belief would be a good defense negating the men s rea of the offense) o General Intent offenses: a person is not guilty of a general intent offense if their mistake of fact was reasonable (unreasonable mistake does not negate culpability)  Exceptions: y Moral Wrong Doctrine: look at the eyes through the world of the D. If the mistake was not immoral, it can free the D from liability. (ex: D pushed a police officer who came up behind him bc he thought he was a mugger. This is not immoral) Thus, a reasonable mistake of fact will not negate culpability y Legal Wrong Doctrine: if D s conduct was an illegal act, he may still be liable for a more serious crime. Since your original act was illegal, you assume the risks associated with your actions. Thus, reasonable mistake of fact will not negate liability (ex: you hit someone that ends up being a police officer. Your original act (hitting someone) was still illegal so you can be charged with the more severe offense of hitting the police officer)). - Strict Liability: a mistake of fact is never a defense to a strict liability offense (SL doesn t require proof of men s rea, therefore there is no men s rea to negate) MPC (2.04, p. 983)- does the mistake negate the men s rea element? If yes, there is no liability; MPC does not make the distinction between specific and general intent so there is only one analysis available. o Exception: mistake of fact is inapplicable if the defendant would have been guilty of a lesser offense had the facts been as the actor believed them to be defendant will be punished at the level of the lesser offense o 2.04(2): MPC equivalent to the Moral/Legal Wrong Doctrines: if D is mistaken as to some fact in the circumstance, but would still be guilty of some crime if the situation were as he believed it to be, the mistake can be used to mitigate the charge to a lesser offense People v. Navarro (194)- D stole beams of wood under mistaken belief that they were available o A mistake of fact negates felonious intent SPECIFIC INTENT case o MPC 2.04 would handle in the same manner

His mistake of fact negated the men s rea element of the crime- intent to steal

Mistake of Law (aka Ignorance of law): - Ignorance of law is NEVER a defense. - A mistake of law doesn't ordinarily relieve D of liability - It can only be a defense when the D relied on an official interpretation of the law that said his/her conduct was lawful. - Common Law: o Specific Intent offenses: honest mistake of law is a missing element o General Intent offenses: mistake defense - MPC: o Generally, mistake of law will not keep a person from being guilty of a crime every time like a defense will, but it will provide a defense for mens rea element and mitigate seriousness (maybe) o 2.02(9) (p. 982) knowledge of the law is not an element of an offense o 2.04(1)(a) (p. 983) A defendant is not guilty of an offense if his mistake of law, whether reasonable or unreasonable, negates a mens rea element of the crime charged  Exception: mistake of law is inapplicable if the defendant would have been guilty of a lesser offense had the facts been as the actor believed them to be defendant will be punished at the level of the lesser offense o 2.04(3)(a)(b) mistake of law is a defense only when statute not known to actor and has not been published or reasonably made available or when actor reasonably relies on official statement of law later determined to be invalid or erroneous People v. Marrero (pg 199): misunderstood peace officer in statute, thought allowed to carry his gun o A personal misreading of the law is not sufficient to negate liability o MPC 2.04(3)(b) defense only available if relied on invalid official statement of law Cheek v. United States (pg 209): guy was opposed to the income tax, believed it was not required by law o In cases of tax avoidance it must be shown that the actor willfully disregarded the law rather than misunderstood it (due to the complex nature of tax law)

1. Actual Cause (cause-in-fact) - A person is not liable unless they are the actual cause of the harm use but for or substantial factor test But-For Test (both CL and MPC): the harm would not have resulted but for the defendant s conduct o Common law: no criminal liability for resulting social harm unless it can be shown that the defendant's conduct was a cause in fact of the prohibited result; in order to make this determination, court's traditionally applied the but-for test - Substantial Factor Test: where two separate actors engage in conduct sufficient to bring about the harm, must be asked whether conduct of the defendant was a substantial factor in bringing about result - Multiple factor test: when the victim's injuries or death is sustained from multiple sources, any of the wrongdoers can be found culpable if his act was a cause in fact of the injury or death; not necessary that any act be the conclusive cause of the resulting injury or death - Accelerating the Result: even if the result is inevitable, if the defendant's act accelerated the death of the victim, he can still be found criminally liable - Concurrent causes: when multiple sources and each act alone was enough to cause results that occurred, the causes are said to be concurrent and each wrongdoer can be found criminally liable - For an intervening cause to be a superseding one, it is necessary that it be unforeseeable. - *Multiple Actual Causes: the cause is an actual cause of the P s injury if it fits into one of these tests 1. Acceleration: Did D s actions accelerate the social harm/ injury? 2. Simultaneous: Death by two blows - did two independent but simultaneous actions cause the social harm/ injury? o CL: for simultaneous causes, many courts resort to the substantial factor test- was D s conduct a substantial factor in the resulting harm? o MPC: for simultaneous causes, the MPC does not apply the substantial factor test- it uses the but for test in all cases. However, commentary to the code explains that, in deciding whether a D was a but for cause of a result one would state the result with specificity. 3. Aggravation: the two injuries are independently non-lethal, but when combined they become lethal 4. Acting in Concert: if both actors were acting in concert, it doesn t mater which one threw the lethal blow- they re both guilty. - Velazquez v. State (pg 214): two guys drag raced, one of them died, D is charged with vehicular homicide, conviction is overturned by the appellate court. o Even though the D satisfies the but-for test and probably the proximate cause test (since the death was foreseeable), it would be poor policy to convict him of the death bc the deceased exercised his own free will and without the undue influence of the D in engaging in the race and essentially chose to kill himself. - Oxendine v. State (215): girlfriend pushed the child one day, next day dad (D) beat the kid, doctors could not testify with certainty that dad s action had accelerated the kid s death. Did D s beating cause the death or was it the GF s actions that caused it? o Where two acts contributed to the death it must be shown that the second act accelerated the death for it to be a substantial factor and thus actual cause o State was relying on the theory of acceleration to get the manslaughter charge; court held that there was insufficient evidence to prove that D caused or accelerated the death of the child; so manslaughter charge is dropped- convicted of assault instead o Even bad people entitled to protection by law - MPC 2.03(1) (p. 982): Conduct is the cause of a result when: o (a) it is an antecedent but for which the result in question would not have occurred; and o (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense o MPC does not recognize substantial factor test


2. Proximate Cause (Legal Cause) - Should the defendant actually be held responsible for the resulting harm? - Is it okay morally to hold the D liable for the crime and the result of the crime? o CL Foreseeability test: to determine proximate cause, determine whether actor was direct cause and whether there were intervening actors or causes (no intervening cause unless cause is foreseeable or de minimis); takes into account policy considerations o MPC handled with mens rea; CL policy considerations, and asks was the actual result . . . too remote or accidental in its occurrence to have a just bearing on the actor s liability or on the gravity of the offense? (2.03(2)(a)(b)) (p. 982); if result deviates too far from what is foreseeable, not liable, even if there s an intervening actor  Purpose, knowledge, reckless, & negligent: transferred intent allowed; still liable if injury less than intended  Exceptions to foreseeability: take victim as you find him, condition unforeseeable but still liable (ex. extremely prone to heart attack, kick defendant in chest liable) - Two main issues: foreseeability and responsibility - Direct/Actual cause: a but-for cause for which no other cause intervenes between it and the resulting social harm a voluntary act that is a direct cause is also a proximate cause because there is no other candidate for causal responsibility - Intervening cause: an actual cause (but-for cause) of the social harm that arises after the defendant s causal contribution to the result o Does not necessarily relieve the defendant of liability o Is the intervening cause dependent or independent of the defendant s act?  Dependent: intervening cause would not have occurred without the defendant s conduct y Generally, defendant liable unless the dependent causes was unforeseen and freakish  Independent: intervening cause would have come into play regardless of defendant s conduct y Generally, defendant NOT liable unless the cause was foreseeable to a reasonable person in the defendant s situation y Acts of God - People v. Rideout (220): D is drunk driving and hits someone who was standing outside his vehicle. Did D have proximate cause? o Court sets the standard by which we gauge proximate cause: reasonable forseeability; o Court concludes that the state did not prove proximate cause - If the harm comes about as a response to the situation created by the defendant then he will be liable so long as the response was reasonably foreseeable - A coincidence will break the legal causal chain unless it was reasonably foreseeable o Ex) A leaves B in roadway where he is hit by a car: foreseeable, will not break the chain o Ex) if A left B outside where a plane crashed and killed him the chain would be broken Intended consequences doctrine: a defendant is the proximate cause of the result, even in the presence of an intervening cause, if the defendant intended the harm that resulted o Strict applicability if the defendant wanted a person dead then the person must have died in the manner sought by the defendant for this doctrine to apply - Generally, a defendant is NOT the proximate cause if there is a free, deliberate, and informed act of another human being that intervenes - No omission by a third party can ever serve as an intervening cause to save the defendant from liability apparent safety doctrine : when the victim reaches a place of apparent safety, the original wrongdoer is no longer the proximate cause of any ensuing harm - Velazquez v. State (211)- two guys drag raced, the other guy died, defendant charged with vehicular homicide, conviction overturned o Even though the defendant satisfies the but-for test and probably the proximate cause test (since death was foreseeable), it would be poor policy to convict him the death because the deceased


exercised his own free will and without the undue influence of the defendant in engaging in the race and essentially chose to kill himself


Homicide Quick Summary- the intentional killing of a human being by another human being - under CL, homicide can be firs degree murder, second degree murder, or manslaughter (voluntary or invol). - Under the MPC, homicide can be murder, manslaughter, or negligent homicide. - The common law holds that a fetus is not a human being until it is born alive, but in some jurisdictions a fetus can be considered a human being before born. 1. Intentional Killing Murder - Common Law: murder is the killing of another human being with malice aforethought o Malice: An unjustifiable, inexcusable killing with any one of these mental states:  (1) Intention to kill a human being y If the killing was brought about in the heat of passion then it is not murder (manslaughter instead)  (2) Intention to inflict grievous bodily harm on the other y Knowledge that one s conduct will cause serious bodily injury  (3) Extreme recklessness disregard for the value of human life (consciously takes a substantial and unjustifiable risk of causing human death called depraved heart at CL) y Depraved heart or abandoned and malignant heart - such activity is considered malice aforethought and the actor is guilty of murder even if the death was unintentional y Includes: disregard for human life, anti-social motives, high probability that death will occur from the actions y A conscious decision to take a substantial and unjustifiable foreseeable risk of causing death to another human  (4) Intention to commit a felony during which the death accidentally occurs y Felony-murder rule o Aforethought: meant that the actor thought about the killing beforehand had some time to premeditate the killing (over time this term has lost significance) o First Degree Murder: intent to kill with premeditation and deliberation.  Premeditated- to think about before hand ; enough time for the actor to have a second look at what he is considering deals with the time between thought and action; any time can be sufficient to uphold the first-degree conviction y Some courts hold no time is too short for premeditation; others hold that some appreciable time must exist between thought and execution of the crime y Things to consider when looking for premeditation: - (1) want of provocation on the part of the victim - (2) conduct and statements of the defendant before and after the killing - (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death - (4) ill-will or previous difficulty between the parties - (5) the dealing of lethal blows after the deceased has been felled or rendered helpless - (6) evidence that the killing was done in a brutal manner.  Deliberation: to measure and evaluate the major facets of a choice or problem deals with the type of thought put into the action y Can premeditate without deliberating but cannot deliberate without premeditating  State v. Guthrie (253): D stabbed a coworker after being hit in the face with a towel a number of times


State defined premeditation as any interval of time sufficient for the actor to be fully aware of what he intended to do sufficient to support a charge of first-degree murder y This was an issue of pre-meditation  State v. Forrest (261): D walked into hospital and shot his dying father to save him from suffering convicted of first degree murder y A showing of premeditation, deliberation, and intent is sufficient for a charge of firstdegree murder Second-Degree Murder intent to kill without premeditation and deliberation; intent to do great bodily harm but someone ended up dying- a depraved heart homicide; can exist where there is malice aforethought but not additional elements of premeditation, willfulness, and deliberation  Implied malice: when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life  Midgett v. State (258): guy repeatedly beat his 8 year old son who died of hemorrhage caused by trauma y Since actor only intended to abuse son there is no premeditation or deliberation conviction reduced to second-degree murder (inferred intent) y

MPC 210.1: a homicide constitutes murder if the killing is: (a) purposely, (b) knowingly, or (c) recklessly under circumstances manifesting an extreme indifference to the value of human life the MPC does not divide murder into degrees (i.e. first, second) o malice aforethought is abandoned o The felony-murder rule is not in the MPC, BUT if a murder is committed during commission of a felony there is a rebuttable presumption that the killing was committed recklessly o Examples of Extreme Recklessness: y Leaving a pit bull tied to a fence in an accessible area where children are known to play y Knowingly placing a loaded gun at the victim s temple, after which the weapon goes off accidentally y Playing Russian roulette y Shooting into a moving train for no apparent reason other than to cause mischief y Speeding, driving in an intoxicated condition, and ignoring stop signs and red lights

2. Intentional Killings Manslaughter ( Heat of Passion / Provocation Killings) - Manslaughter: an unlawful killing of a human being without malice aforethought - To have manslaughter there must be adequate provocation - 2 Types: Voluntary and Involuntary o Traditionally these factors mitigated a murder charge to manslaughter:  (1) walking in on a spouse cheating  (2) mutual combat  (3) assault and battery  (4) in some cases a threat to a family member or third party  (5) illegal arrest  Today, it is usually a question for the jury if the crime should be mitigated o Girouard v. State (264): D was fighting with wife, she said she had filed abuse charges, wanted a divorce, and husband would be court martialed (D stabs her to death, claims he was provoked)  Words alone are not generally adequate provocation to mitigate a murder charge to manslaughter  Not first degree murder, because hot blood negates premeditation, but still second  Certain facts that may mitigate what would normally be murder to manslaughter: 1. Discovery of a cheating spouse 2. Mutual combat


3. Assault and battery Rule of Provocation requirements: 1. Must have been adequate provocation 2. Killing must have been in the heat of passion 3. Must be in the sudden heat of passion- no reasonable time for passion to cool off 4. Must have been a causal connection between the provocation, the passion, and the fatal act

Voluntary manslaughter: an intentional, unjustifiable, inexcusable killing that is committed in the sudden heat of passion, as a result of adequate provocation. o Generally characterized as an excuse o Elements of the defense (aka pg 267 Rule of Provocation Requirements):  (1) Adequate provocation: the provocation must be such as to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason y Words alone cannot generally be adequate provocation y Traditionally, all provocation involves unlawful conduct; lawful conduct that results in provocation is never adequate provocation  (2) Passion: the crime must be committed while in the heat of passion; although the typical passion is anger, any over-wrought emotional state, including fear, jealousy, or even deep depression, may qualify  (3) Suddenness: the defendant must not have had adequate/ reasonable time to cool off  (4) Causal connection: there must be a link between the provocation, the passion, and the killing o Attorney General for Jersey v. Holley (271): drunk guy cut his wife with an axe after she says she slept with another man and she tells him that he doesn t have the guts to kill her.  A defendant s abnormalities are only to be considered in assessing the gravity of provocation to him BUT NOT in assessing whether a reasonable person would have done as he did y In applying the reasonable man standard only can consider age, sex, etc. Dressler s differences between Excuse and Justification: Justify actor and Excuse action. EG: Excuse is insanity as mindset of individual; Justification is self-defense in relation to action. Involuntary manslaughter Criminal negligence- kills another person in a criminally negligent manner; not as severe as a depraved heart killing, ignorance (unduly dangerous) to danger of damage to life and limb Unlawful-Act doctrine- a person who kills another during the commission of an unlawful act not sufficient to trigger the felony-murder rule MPC 210.3 (p. 1012)- Manslaughter and negligent homicide under the MPC 2 circumstances where homicide is manslaughter: o (1) Recklessness- unlike the recklessness that constitutes murder, reckless-manslaughter does NOT manifest an extreme indifference to human life  Murder if extreme recklessness/indifference to human life o (2) Extreme mental or emotional disturbance- there must be a reasonable explanation or cause for the disturbance  Words alone may be adequate, vs. heat of passion where they are not (would not have to be the cooling-off period discussed at common law)  In the end, the question is whether the actor s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen (ALI MPC and Commentaries, Comment to 210.3)  EMED has no cooling time requirement and Heat of Passion does


Negligent homicide: the MPC creates a negligent homicide offense for criminally negligent killings (common law s involuntary manslaughter) o Negligence: unconscious risk creation; the D was not aware, but should have been aware of the substantial and unjustifiable risk. o Test to determine negligence: y What did the D know? y What did the D not know, but should have known? y What didn't the D know that a reasonable person would have known? People v. Casassa (285): defendant was stalking an ex-girlfriend, when she rejected him again he stabbed her alleged extreme emotional disturbance and that crime should be manslaughter o Even though the defendant was indeed disturbed, the external circumstances do not make the defendant s actions reasonable enough to mitigate the crime o Under Common Law, no EED instruction o Under MPC, EED instruction; 210.3- reasonableness shall be determined from the viewpoint of a person in the actor s situation under the circumstances as he believes them to be. People v. Knoller (296): Defendants owned two large dogs; they had been warned that the dogs were dangerous, but did not seem to care; the dogs attacked and killed a woman who was in their apt building. o Evidence surrounding the circumstances show that the actor acted with a wanton disregard for the value of human life abandoned and malignant heart o Thomas Test People v. Nieto Benitez (294): o Second degree murder the unlawful killing of a human being with malice aforethought but without additional elements of willfulness, premeditation, and deliberation o Manslaughter the killing of another human being without malice State v. Hernandez (304): drunk guy with drinking slogans on his car kills someone in an car accident o A question of whether character should be taken into consideration; the court says that the stickers cannot be submitted as evidence because D s character is not in question, his actions are in what are in question

3. Unintentional Killings: Felony-Murder Rule - Common law- a person is guilty of murder if he kills another person, even accidentally, during the commission or attempted commission of any felony o Many statutes further divide the rule so that a killing during certain felonies is first-degree murder (arson, robbery, rape, and burglary- most common) and during those not listed is second-degree murder - As a matter of law, the defendant is deemed to have killed with malice aforethought - Purpose of felony-murder rule is to deter negligent and accidental deaths during felonies MPC 210.2(1)(b) o o The MPC presumes reckless indifference when a killing occurs during the commission of a specified list of felonies, reaching essentially the same result as the felony murder rule 210(1)(b) provides that criminal homicide constitutes murder when. . . it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or attempt to commit, or flight after committing or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

Limitations on the Felony- Murder Rule: o (1) Inherently Dangerous Felony limitation: many states limit the application of the felony-murder rule to felonies which are inherently dangerous


Some courts look at the elements of the felony in abstract could the felony be committed without creating a substantial risk that someone will die?  Other courts will consider the facts of the specific case  Policy purpose: we want to encourage criminals to commit crimes with the least amount of violence possible- trying to deter negligent/ accidental death  Assault with a deadly weapon: in these cases the D should really be charged with some type of murder, and using the felony-murder rule will allow the prosecutor to charge them with an easy to prove felony, and the jury will then not have to consider whether they had the mental state required for the murder as long as they found the D guilty of the felony.  Armed robbery: the underlying felony had an independent purpose (robbery) from the homicide. The felony-murder then could achieve its purpose by encouraging this felon to be more careful in his robbery.  People v. Howard (327): guy in a high speed chase with cops committed felony of willful and wanton disregard for the safety of persons or property while fleeing from a pursuing police officer and killing someone y Felony-murder rule does NOT apply because it was possible to commit the predicate felony in a manner that is not inherently dangerous to human life (could have been driving unregistered vehicle, have suspended license, etc.) (2) Independent Felony (or Merger) limitation: some courts require that the felony that serves as the predicate for the felony-rule be independent of the homicide. A felony that is not independent merges with the homicide. Most obvious example of felony that merges: assault with a deadly weapon.  Purpose of doctrine is to deter killings during felonies and keep felony-murder rule in check  Most common example is that assault with a deadly weapon will NOT invoke the felony-murder rule = Ireland rule  Mattison: independent felonious purpose test (if underlying felony is, e.g., robbery, then felonymurder applies)  Hansen: merger rule only applies to assault-like offenses  People v. Smith (334): death of a child as a result of child abuse. (3) Causal Link (Proximate Cause Approach): a felon may be held responsible for a homicide perpetrated by a non-felon if the felon proximately caused the shooting. This makes a felon responsible for the death of another, although the shooter was a police officer, felony victim, or good samaritan bystander, because the shooting is a foreseeable response to the felon s conduct.  State v. Sophophone (338): group was committing burglary, the defendant was caught and in a police car when an accomplice shot at a cop, the cop returned fire and killed accomplice defendant was charged under felony murder rule y (1) The agency approach would only hold a felon liable for killings performed by a cofelon. The rationale being that acts of the co-felon are imputed to the defendant on the basis of his status as an accomplice. - This is the majority rule - Adopted by the court here the felony-murder conviction is reversed y (2) The proximate causation approach holds that a felon is liable for a killing which is the result of acts set in motion by the defendant. (4) Killing by a Non-Felon (Agency Approach): some courts will not apply felony-murder if the person who committed the homicide is a non-felon resisting the felony  Agency approach: a felon is only responsible for homicides committed in furtherance of the felony, by a person acting as the felon s agent ; therefore, a homicide committed by a police officer, felony victim, or bystander falls outside the felony-murder rule.


Justifications: the harm caused by the offense is outweighed by the need to avoid an even greater harm or to further a greater societal interest o Society believes that the defendant s conduct was morally good not wrongful o Generally, this defense contains 3 components: necessity, proportionality, reasonable belief o Ex) burning down one house to stop the spread of fire elements for arson are satisfied but there is a justification Excuses: admit that the deed was wrong but excuse the actor from culpability because conditions suggest that the actor was not responsible for his deed or should not be blamed o Ex) crazy person beats someone with a stick thinking they wanted to implant a brain reading chip Generally, the defendant has the burden of proof of the existence of an affirmative defense o Under the MPC:  The defendant has the burden of presentation in showing evidence that an affirmative defense existed  BUT the prosecution as the burden of persuasion in arguing against the affirmative defense o Patterson v. New York (480): guy saw his wife in state of semiundress with a new lover, shot the lover, alleged extreme emotion disturbance  The defendant bears the burden of proof of arguing the existence of an affirmative defense to a crime  D is looking to go from murder to manslaughter under the EED defense  Due Process Clause: must prove all elements of a crime for there to be proof beyond reasonable doubt that D is guilty

Justification defenses:
1. Self-Defense - Rule- a person is justified in using deadly force against another if: o (a) he is not the aggressor o (b) he reasonably believes that such force is necessary to protect against the imminent use of unlawful force by another person - The response must be proportional can never use deadly force in response to a non-deadly threat - Common law- require that the threatened deadly force be imminent to justify use of deadly force - The use of force must reasonably appear necessary Retreat to the wall - at common law there was a rule forbidding the use of deadly force if there was an open avenue of safe retreat o Minority rule in the U.S. o There is no duty to retreat where doing so would increase the risk Castle doctrine- a defendant has no duty to retreat from an attacker in his home o Some jurisdictions include yards o Not valid if the defendant is the aggressor - Aggressor: o An individual who inflames the situation, stirs up further trouble, or instigates the conflict may not claim self-defense o An individual who is at fault in the conflict o For an aggressor to regain his right of self-defense, he must: communicate his intent to withdraw and in good faith attempt to do so


United States v. Peterson (500)- the deceased was stealing guys windshield wipers, they had a verbal exchange, deceased was about to leave when defendant returned with a gun, deceased walked towards defendant with a wrench, defendant shot him in the face  No self-defense because the defendant was the aggressor Battered Woman Syndrome- if an abused spouse commits homicide in a non-confrontational setting (i.e. while husband sleeping) courts are split on whether evidence of BWS will allow jury to consider self-defense despite lack of an imminent threat o State v. Norman (532): defendant shot her husband in head while he was sleeping, he abused her in many terrible ways over a period of years, she suffered from Battered Woman Syndrome  In cases of Battered Wife Syndrome a momentary lapse in abuse such as the deceased sleeping might seem to be the only opportunity to protect against abuse and thus self-defense may be allowed even where there was no confrontation  This was then overturned on appeal: harm must be imminent o (1) usually available to bolster claims of prior abuse o (2) arguably admissible for determining subjective belief of imminent deadly threat o (3) support reasonableness of belief o

* Self Defense under Common Law y Elements of the Defense  Unlawful (infers human-made) threat of force  Immediate or imminent threat of force  D really believes they are in peril  D reasonably believes he is in peril  The force is necessary or proportional to the threat y Reasonable Belief Requirement- a person may use deadly force in self defense if she has reasonable grounds to believe, and actually believes, that she is in imminent danger of death or serious bodily harm, and that use of deadly force is necessary to protect herself, even if her reasonable belief in these regards are incorrect  The reasonable person standard in the elements of this test includes some subjective characteristics of the D. The jury can consider what the reasonable person in the C s circumstances would do.  Ex: the jury can consider the relevant knowledge of the actor, past experiences of the actor, physical attributes, etc. y Battered Woman Syndrome  Expert testimony may be needed to determine if threat from man was immediate or imminent  Most courts prohibit an instruction on self defense if the homicide occurred in a non confrontational circumstance, on the grounds that no reasonable juror could believe that the D, as a reasonable person, would believe that a sleeping man represents an imminent harm  But, other courts now permit such cases to go to the jury, if BWS evidence is introduced to show that the D, as a battered woman suffered from this condition y Limitation of the use of self defense under CL:  Aggressors: one who provokes the incident; self defense is not available to the aggressors in an incident; an aggressor can regain the right to self defense if he retreats from his initial threat  Duty to retreat: *majority rule- there is no duty to retreat; *minority- there is a duty to retreat, but bc of the Castle Doctrine you don t have to retreat from your home if the aggressor is in your home; *self defense ends once the aggressor has retreated, bc you don t need it anymore

MPC 3.04: The MPC states that the use of deadly force must be immediately necessary


o o o

o o

If the only way to stop the threat is through immediate action then it may be employed even if the other is not threatening imminent deadly force Defendant must honestly believe that such force is necessary to protect their person (subjective) As with the common law, self-defense may not be used if the defendant was the aggressor  Aggressor: one who provokes the use of force against himself in the same encounter (if aggressor, must retreat even if in home or office) A non-aggressor must retreat if he knows that he can do so in safety  A person need not retreat from his own dwelling Deadly force may not be used if it can be avoided by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take but, can be used if facing death, great bodily harm, forcible rape, or kidnapping

* Self Defense under the MPC 3.04 y Elements (subjective test):  A person is justified in using deadly force when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful (infer human made) force by the other person at that time  Example: repeatedly abused woman kills her husband in his sleep- under MPC force may be considered immediately necessary, but under CL she may not be considered to be in imminent danger of serious bodily harm y A person is not justified in using deadly force against another unless she believes that such force is immediately necessary to protect herself against the exercise of unlawful deadly force, force likely to cause serious bodily harm, a kidnapping, or sexual intercourse compelled by force or threat, by the other person on the present occasion y Limitations:  Aggressors: aggressors are not allowed to use self defense privilege (3.02(2)(b)(1)); they may regain the privilege if they retreat through words and actions- they are then no longer the aggressor  Duty to Retreat: there is a duty to retreat if you can retreat safely; Castle Doctrine: a person does not have to retreat from the aggressor if the altercation occurs in their home or workplace ** Difference between CL and MPC: under the MPC, the focus is on responding to the threat instead of the timing of the response to the threat -CL: timing- imminency -MPC: is it immediately necessary?


2. Defense of Others - Rule: a person is justified in using deadly force to protect a third party from unlawful use of force by an aggressor the intervener s right mirrors the third party s apparent right of self defense the intervenor may use force when he reasonably believes that the third party would be justified in using force to protect himself o Minority rule: a person intervenes at their own risk defense of others is only justified where the third party does in fact have the right of self-defense - MPC 3.05: a person may use deadly force to protect another if: o (1) the intervener would be justified in using such force to protect himself, if the facts were as he believed them to be o (2) according to the facts as the intervener believes them to be, the third party would be justified in using such force to protect himself o (3) the intervener believes force is necessary for the third party s protection o (4) if the third party would be required to retreat, then the intervener must attempt to cause the third party to retreat before using deadly force - People v. Kurr (543) the defendant was pregnant, father punched her in the stomach, she told him not to do it again, when he did she stabbed him to protect her children o Protection of a fetus may be used as self-defense only applicable to cases of unlawful bodily harm against another (cannot be used by antiabortion activists to justify their activities) o Under MPC, no defense, because person = any natural person fetus not included * Common Law y Apparent Belief Rule (majority rule): Good Samarian Rule : defense of others is justified when a reasonable person in the actor s situation would believe the intervention was necessary for the third person and that a reasonable person would believe that the third person would be justified in using that force themselves  Some courts limit this defense to circumstances where a special relationship exists between the defender and the third party y Alter Ego Rule/ Act on your own Peril Rule (minority): stricter than apparent belief rule  The actor can only raise the defense if the third party themselves could use the defense  You assume the risk of your mistake, even if your mistake was reasonable y Imperfect defense of others: some jurisdictions will allow a person to mitigate their criminal charge if they had a genuine belief in the need for defense of others, but that belief was wrong *MPC 3.05 y Elements:  The actor can use whatever force the actor would be justified in using if he were the one being threatened  The third party would be justified in using the force under the circumstances as the D believes them to be (subjective)  The actor must believe the force is necessary to protect the third person  If the third party would be required to retreat under the Code self-protection rules, the intervener must attempt to cause the third party to retreat before using deadly force y Limitations: Retreat Rule  A person has to retreat if that would save the third person (ex: A says he will shoot B unless C retreats; C must retreat and not use force against A to save B)  The actor must also help the other party to retreat if he can do so safely- you must try to get them to retreat  The actor does not have to retreat if it is in the other s home or workplace (Castle Doctrine)


3. Defense of Property and Habitation - Common Law: a person is NEVER justified in using deadly force to protect his real or personal property (can only be used to protect habitation) o A person is justified in using nondeadly force if she reasonably believes that such force is necessary to prevent the imminent, unlawful dispossession of the property  Some jurisdictions require that prior to using force the defendant must make a request that the dispossessor stop unless such a request would be dangerous  Force may not be used to reclaim property that has already been dispossessed y Exception: fresh pursuit  The defendant s right to use force to protect from dispossession is tied to rightful possession - Deadly Force protection of habitation o Some jurisdictions allow the use of deadly force to protect a habitation if the defendant reasonably believes that  (1) an actor intends to unlawfully and imminently enter the defendant s dwelling, and  (2) the actor intends to commit a felony inside or to cause bodily injury (no matter how slight the injury)  (3) deadly force is necessary to prevent the injury o Many jurisdictions today hold that deadly force is limited to circumstances in which the defendant reasonably believes the actor will commit a violent felony inside the house MPC 3.06 (p. 992) a defendant may use deadly force if: o (1) he believes the actor intends to dispossess the defendant of his dwelling other than under a claim-ofright to possession, or o (2) he believes that the actor intends to commit arson, burglary, robbery, or felonious theft and  (a) the actor has employed or threatened deadly force against or in the presence of the defendant, or  (b) the use of non-deadly force to prevent the crime would expose the defendant or another to a substantial risk of bodily harm Spring Guns: o Common law: a defendant may use a spring gun to inflict deadly force only if he would have been justified in using such force had he been present (the defendant acts at his own peril in setting such a trap) o MPC 3.06(5): justifiable use of force does not transfer to mechanical device that can inflict deadly force o People v. Ceballos (547)- guy set up a trap gun and shot a kid who entered the garage  Because the defendant would not have been justified in using the force if he were present, he was not justified in setting up such a trap  **deadly force is permitted if the D reasonably believes that the intruder intends to unlawfully and imminently enter; that deadly force is what is necessary to prevent that entry; and that the intruder intends to commit a forcible and atrocious felony inside the house.

4. Law Enforcement Defenses A. Crime Prevention - Majority rule- deadly force is only permissible if the defendant reasonable believes that the other is about to commit an atrocious felony a felony that involves significant risk of bodily harm - Minority (traditional) rule- a police officer or private citizen may use deadly force upon another if he reasonable believes (1) the other is committing any felony, and (2) deadly force is necessary to prevent commission of the crime


MPC 3.07- a police officer or private citizen may not use deadly force to prevent a felony unless he reasonably believes that o (1) there is a substantial risk that the suspect will cause death or serious bodily harm to another unless the crime is prevented o (2) the force is immediately necessary to prevent the crime o (3) use of deadly force poses no substantial risk to innocent bystanders

B. Arrest - Majority rule- a police officer may use deadly force against another if he reasonably believes that: o (1) the suspect committed any felony o (2) such force is necessary to immediately effectuate the arrest o ** Ruled by Tennessee v. Garner unconstitutional (against 4th Amendment y Tennessee v. Garner (553)- police officer shot and killed fleeing burglary suspect - For the use of deadly force against a fleeing suspect there must be probable cause to believe that the suspect is an imminent threat to the officer or others if he escapes New Rule: o (1) the force is necessary to prevent the suspect s successful flight o (2) if it is practical, the officer must warn of the intent to use deadly force o (3) the officer has probable cause to believe that the suspect, if not immediately apprehended, poses a significant threat of death or serious injury to the officer or others


5. Necessity *Common Law: - Elements of the defense: o (1) Lesser-evils analysis: actor must be faced with a choice of evils and must choose the lesser  The fact that a defendant thought he chose the lesser evil is not sufficient a judge or jury will decide if he acted properly  A court looks at the reasonably foreseeable harms  Ex: breaking into a building to get out of the way of a tornado; breaking speeding laws to get seriously injured person to hospital; firefighter burns down a building and trees in order to create a firebreak and prevent many other houses from burning in the area o (2) Imminency of harm: the actor must be seeking to avoid an imminent harm, if there was time to seek a lawful avenue then the actor must attempt such a step o (3) Causal element: actor must reasonably believe that his actions will avoid threatened harm o (4) Situation was not created by D o RECAP: greater harm was avoided, no alternative, harm is imminent, situation not caused by D. - Elements of the defense (alternate): o (1) Act charged must have been done to prevent a significant harm o (2) There must have been no adequate alternative o (3) Harm caused must not have been disproportionate to the harm avoided - Nelson v. State (560)- guys truck got stuck, he stole heavy equipment to try and free his truck o Necessity is not available when there are other lawful avenues of escape OR when the defendant s conduct was not to avoid a greater evil than the one he caused o Court considers necessity based on reasonably foreseeable harms o D did not meet al of the elements of necessity- he was not in any real imminent peril. - There is some disagreement about whether necessity can be a defense to homicide; usually NO. * MPC 3.02 (p. 989): a person is justified in committing an act that would otherwise be an offense if: o (1) the actor reasonably believes that conduct is necessary to avoid harm to himself or another o (2) the harm that the actor seeks to avoid is greater than that sought to be avoided by the law prohibiting his conduct o (3) there does not plainly exist any legislative intent to exclude the justification claimed by actor o (4) If the actor was reckless or negligent in bringing about the emergency then the defense is unavailable for a crime where recklessness or negligence is sufficient to prove guilt o Differences between common law:  Reasonable belief must be true  The threatened harm does not have to be imminent  The defense is available to homicide  Can claim necessity even if he negligently or recklessly created the necessity (can be prosecuted for negligence and recklessness instead)

*Differences between CL and MPC: o No imminency element in MPC- CL has imminency requirement o MPC- defense is available in a homicide case; in CL, it is generally unclear if necessity can be used as a defense in a case Traditionally:


o Necessity was a defense under natural circumstances o Duress involved coercion by human forces Modernly: o Necessity involves a choice of evils o Duress involves following a coerced order Civil Disobedience: y Direct: protesting existence of a law by breaking it y Indirect: involves violating a law or interfering with a government policy that is not, itself, the object of protest y United States v. Schoon (568): protesters against U.S. involvement in El Salvador entered an IRS office and were disruptive * Necessity is not a defense in cases of indirect civil disobedience- there s not really a harm to avoid in indirect disobedience instances, and the act alone is unlikely to abate the evil precisely because the action is indirect People v. Unger (594): inmate had been sexually abused and threatened with death by another inmate he escaped from low-security farm o Necessity may be a defense in a case of prison escape where the actor seeks to avoid abuse since he engaged in a choice of evils


Excuse Defenses: what you did was wrong but for some reason we will not hold you liable 1. Duress - Negates mens rea- if D performed the crime because of a threat of, or use of, force by a third party that was sufficiently strong that D s will was overborne. Applies to control over D s mind, not his body. *Common Law: - CL Elements: o (1) an immediate threat of death or serious bodily harm o (2) a well-grounded fear that the threat will be carried out and he will suffer immediately or imminently o (3) no reasonable opportunity to escape the threatened harm y United States v. Contento-Pachon (583): guy swallowed 129 balloons of cocaine under serious threats to himself and family  Duress is available where the defendant had no reasonable alternatives (feared corrupt police)  Court found that the issue of reasonable escape for the D and his family should go to the trier of fact. D could possibly win under the duress defense.  Court sets up above elements - OR Dressler s elements: o (1) another person unlawfully threatened imminently to kill or grievously injure the defendant or another person unless he committed the crime, and o (2) he is not at fault for exposing himself to the threat NOT A DEFENSE TO MURDER! * MPC 2.09 (p. 987): o defense is available where the threat to D was sufficiently great that a person of reasonable firmness in [D s] situation would have been unable to resist 2.09(1) o (1) he committed the offense because he was coerced to do so by another person s use, or threat to use, unlawful force against him or a third party o (2) a person of reasonable firmness would have been unable to resist o There can be no defense if the defendant put himself in a situation where it was probable that he would be subject to duress o Defendant would not be liable if his perception of duress were product of a reasonable mistake o No immanency requirement o Includes prior use of force, not just imminent force o Allows duress for homicide cases- it s up to the jury to determine whether the nature of the threat or force used by the coercer, a person of reasonable firmness would have killed an innocent person NOT a defense to murder o People v. Anderson (599): defendant and another man kidnapped a guy, other guy told defendant to kill the victim or he would beat him up y Duress is not a defense when the defendant put himself in the situation where he was likely to be subject to duress y A defendant should always resist rather than given in to an order to kill another person


Duress shouldn t mitigate murder to manslaughter because could promote gang violence and intent of Legislature is contrary

*main difference between CL and MPC for duress: MPC would allow a duress defense in the case of homicide, and CL would not. 2. Intoxication - Intoxication- A disturbance of an actor s mental or physical capacities resulting from the ingestion of any foreign substance (including lawfully prescribed medicines) Voluntary Intoxication: o Common Law Rule y Majority Rules: Not an excuse to criminal conduct; but a person is NOT guilty of a specific intent crime if because of intoxication they failed to form the requisite intent y This is not really a defense to the crime rather intoxication shows that the crime never actually occurred since it negates the specific intent element y Voluntary intoxication does not exculpate for general intent crimes y Accused must establish that he or she was so deeply intoxicated or drugged that she did not possess the mens rea necessary to establish the charged offenses y Does NOT negate recklessness (ex: voluntary manslaughter) y Minority Rules:  A few states will not consider voluntary intoxication as evidence that the defendant lacked specific intent  Some states allow intoxication only to alter the degrees within a crime charge *accused must establish that he or she was so deeply intoxicated or drugged that she did not possess the men s rea necessary to establish the charged offenses o MPC 2.08(1) (p. 987) intoxication is relevant if it negates an element of the offense y BUT, 2.208(2) if recklessness is the requisite level of intent for the crime then an actors unawareness of a risk that he would have been aware of in a sober state will not be considerable  Essentially: if the culpable state is recklessness then intoxication is no defense  To the extent that D is unaware of risk of his conduct is the result of voluntary intoxication  Unawareness of risk is immaterial  Would have known of the risk and recklessness; doesn t negate a reckless frame of mind  Recklessness factor: makes it harder for the D to show a lack of awareness of risk United States v. Veach (603): D was intoxicated and in a car accident; he was basically a pain in the ass to the responding police officers; threatened to assault and kill them; D was charged with resisting a federal law enforcement officer and threatening to assault and murder a federal law enforcement officer y Intoxication may preclude the formation of specific intent y Not using as excuse, really using to see if crime happened (elemental approach) y If it is a specific intent crime, D can try to use intoxication defense and prove that the mens rea element (specific intent) of the crime was not present y failure of proof - bc he was intoxicated, he could not have formed specific intent, which is an element of the crime he was being charged for; so the gov t cant prove that all of the necessary elements of the crime were present


differences: CL has the general or specific intent distinction, general or specific intent does not apply under the MPC

Involuntary Intoxication: o What makes intoxication involuntary? y (1) coercion forced to ingest the intoxicant y (2) mistake accidentally ingest the intoxicant y (3) prescribed medication actor becomes unexpectedly intoxicated from a legally prescribed drug y (4) pathological intoxication the intoxication is grossly excessive in degree, given the amount of intoxicant, to which the actor does not know he is susceptible o (1) an involuntarily intoxicated individual is entitled to acquittal if, as a result of the intoxication, he does not form the mens rea of the offense o (2) involuntary intoxication renders the actor temporarily insane and thus entitled to acquittal o Rules are the same for the common law and MPC


3. Insanity - If D can show that the he was insane at the time he committed the criminal act, he may be found not guilty (D has the burden of proof to show that he was insane at the time the crime was committed) *Common Law - The burden of persuasion regarding insanity is on the defendant in a majority of states o To be involuntarily committed it must by clear and convincing evidence show that the person o (1) has a present mental illness o (2) is a danger to himself or others - Some states allow guilty but mentally ill (GMBI) defense mental illness is a medical term but insane is a legal term o One can be mentally ill without being insane but not vice-versa - State v. Johnson (outlines 4 tests of insanity) (618) o M Naghten test: at the time of committing the act the actor was:  (1) suffering from a mental disease that caused a defect in his reasoning powers  OR  (2) if he did not know that was he was doing was wrong y Dual-pronged test : 1) did not understand the nature and quality of his act, OR 2) he did not know that his act was wrong. y Allows only an all-or-nothing approach requiring total incapacity of cognition ignores the reality that there is a graded scale of mental health issues y Too extreme, widely criticized, to black and white for most courts o The Irresistible Impulse Test: if there is a defect of the mind that even if a person knows a given act is wrong, he is irresistibly driven by an insane impulse to commit the crime (D is unable to control his conduct)  acted with an irresistible and controllable impulse  lost the power to choose between right and wrong, and to avoid doing the act in question, because his free agency was destroy  Ignores that crimes involving an insane defendant are not always committed in an explosive fit too narrow o The Product Test: an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect  Left too much in the hand of the experts (too much weight on what experts say) and often proscribed the juries function into trial by label  Abandoned in United States v Brawner *MPC Test: 4.01 (p. 999) A person is not responsible for criminal conduct if at time of crime:  (1) as a result of mental disease or defect he lacked the substantial capacity to either y (a) appreciate the wrongfulness of his conduct o appreciate is less stringent than M Naghten s know OR y (b) to conform him conduct to the requirements of law o Does not require as strong of an impulse a strong but not irresistible desire to commit a crime would suffice under MPC



(2) as used in this Article the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct D wins if he can show either that he didn t know his conduct was wrong, or that he couldn t control his conduct (basically, D wins under either the M N or I.I. tests under the MPC)

o o o

The Federal standard:  As a result of severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his acts (essentially the M Naghten standard) y Appreciate vs. know (can know what doing but not appreciate consequences) The M Naghten test has regained prominence over the MPC based mostly on public outrage when John Hinckley received an insanity acquittal for the attempted assassination of Reagan Key difference between M Naghten, MPC, and Federal definition is knowledge versus appreciation Sociopathic behavior is excluded from insanity defense  Sociopath- engages in activity without regard for the consequences of that activity on others  Dangerous but not deserving of excuse  Difference between evil and sickness- does the person know what they re doing? Appreciate what they re doing?  Utilitarian argument punish just to take out of society

New Defenses: 4. Addiction/Alcoholism: - Defendants who are chronic alcoholics or narcotics addicts sometimes try to use their condition as a defense- it lacks the involuntary element necessary to use as a defense - It is a mental illness - Should not make such status legal - It is a condition that could be acquired involuntarily or without culpability - Robinson v. California (697)- there was a statute that made either use or addiction to narcotics a crime, defendant appealed based on a jury instruction that he could be convicted either if he was of the status or had committed the act (arrested for evidence of track marks) conviction overturned o Addiction is a mental illness should not make such a status illegal y It is a condition that could be acquired involuntarily or without culpability y Ex) baby born addicted; hospital patient who becomes addicted o Court says conviction would be cruel and unusual punishment, because someone could be continuously guilty for having used drugs - Can be held and treated civilly without a criminal conviction o Has to do with retribution shouldn t be punished for being sick o Goal is to benefit society by curing and deterring others from abusing substances o Probably not constitutional to convict for being HIV positive whereas prostitute can be convicted (not an illness), BUT just in terms of status, prostitute cannot be convicted (unless caught in act) - distinction between status and conduct in cases like this: you can t punish someone for their status, but you can punish someone for their conduct (ex: you can t punish someone just for being a member of a terrorist organization, but you can punish them if they act in an unlawful way in accordance with that organization); as soon as you take the conduct step, you are punishable - you cannot punish status and addict is a status

5. Rotten Social Background (RSB) - Where to stop if background comes into play?


Can understand impulse that someone brought up poor wants to steal, but should not excuse this conduct what would happen to society? System would be thrown into disarray Criminal law focuses on commission of act not all factors leading up to it need to narrow down and simplify factors In thinking about whether RSB should be a defense, consider Judge Bazelon s formula (pg 716), which requires the following 3 determinations: 1) A condemnable act was committed by the defendant 2) Does the D deserved to be condemned? (he could have been reasonably expected to conform his behavior to the demands of the law) 3) Does society have or does it lack the standing to judge the D? (society s own conduct in relation to the actor entitles it to sit in condemnation of him with respect to the condemnable act)

6. Cultural Defense - US is a country of immigration, very culturally diverse, so when does cultural difference not constitute a defense? - State v. Kargar (728): dad kissed his baby s penis (acceptable in Afghani culture) conviction overturned o De Minimis Statute: provides that a court may dismiss a prosecution if the defendant s conduct: (crime may have happened, but if would be pointless to hold the defendant culpable)  (a) was within customary license or tolerance, not expressly refused by the person whose interest was infringed and is not inconsistent with the purpose of the law defining the crime, or  (b) did not actually cause or threaten the harm sought to be prevented by the crime or only did so to an extent too trivial to warrant conviction  (c) presents other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime  MPC 2.12: De Minimus Infractions  Here the defendant s act was not the type of harm that the statute sought to prevent (he was following his culture s accepted method of demonstrating love for a child) o The purpose of de minimis statutes is to introduce a desirable degree of flexibility in the administration of the law  Every analysis must therefore be case specific o Considerations can include: background experience and character of defendant; whether he ought to have known of illegality; resulting harm or evil; impact of violation on community o The focus should be on whether the conduct of the defendant was envisioned by the legislature when it adopted the statute o Not all jurisdictions have de minimis statutes o 2 situations where strict application of the law may be unfair to someone raised in a foreign country: 1) Ignorant of applicable law; 2) may have committed the criminal act solely because the values of her native culture compelled her to do so. o Said: are there limits to a cultural defense? Think about provocation- should the law allow a cultural defense? Why or why not? Can you think of reasons why someone should not have a cultural defense (ex: someone beats up a guy in a green shirt, says in his culture you beat up people in green shirts- he probably cannot use a cultural defense)


*Common Law: - An act done with the intention of committing a crime, that falls short of completing a crime - Attempt involves the beginning of a criminal offense, rather than the mere preparation for the target offense o Difficult to determine where the requisite actus reus has been committed o Attempt is a felony but a lesser felony than the completed target offense o If the attempted crime is successfully completed, there can be no charge of attempt, just for the target crime ( merger doctrine ) - Actus reus tests: o Proximity test physically close to intended crime o Indispensable elements control over all factors in commission of the crime o Probably desistance likelihood that defendant would cease efforts to commit the crime given the conduct defendant has already committed o Unequivocal (res ipsa loquitur) act amounts to attempt only if it firmly shows defendant s intent to commit the crime (act speaks for itself ) - Duel Intents: o (1) The actor must intend to commit the acts that constitute the actus reus of an attempt  Attempt is a specific intent crime, even if the target offense is general intent o (2) The actor must commit the actus reus of an attempt with the specific intent necessary to constitute the target offense  Must be proven beyond a reasonable doubt - Attendant Circumstances: o Some courts require only that the actor be reckless in regard to attendant circumstances o Other courts hold that the actor need only be as culpable regarding an attendant circumstance as is requisite for the target offense - Defenses to Attempt: o (1) Factual impossibility: the defendant s intended end constitutes a crime but he fails to consummate it because of a factual circumstance unknown to him or beyond his control  NOT a defense to a charge of attempt  Ex: pull the trigger of a gun aimed at someone but it is unloaded but the defendant thought is was loaded; ex: pickpocket putting her hand in the victim s empty pocket o (2) Legal impossibility: the actions which the defendant performs, even if fully carried out as he desires, would not constitute a crime (2 kinds)  (1) Pure legal impossibility: the criminal law does not prohibit the conduct that the defendant sought to achieve even though the defendant thought he was acting criminally y IS a defense to attempt- there was no actual crime to commit y He thought the act was unlawful but it is actually lawful y Ex: a person attempts to sell bootleg liquor after the repeal of the prohibition laws, she is not guilty of attempt even though she is unaware of their repeal  (2) Hybrid legal impossibility: the defendant s goal was illegal but commission of the offense was impossible due to a factual mistake on his part regarding the legal status of some factor relevant to his conduct y Ex) defendant receives property he believes is stolen but is actually not


o o

Ex) defendant tries to pick the pocket of a statue Ex) tries to hunt out of season by shooting a stuffed animal Ex) shoots a corpse believing it is still alive Has been recognized as a defense in the above examples Distinction between these cases from simple factual impossibility is that these are factual mistake relating to the legal status of the defendant s conduct.  A person is not guilty (and cannot be guilty) of receiving stolen property with knowledge that it is stolen unless the property is stolen in character  The status of a victim as a human being - rather than as a corpse, tree stump, or statute- legally is necessary (3) Abandonment: voluntary abandonment or renunciation of criminal purpose y Rationale: a person who voluntarily gives up their crime is no longer a threat to society; provides an incentive for an actor to turn away from a criminal enterprise before the target offense is carried out. The majority of jurisdictions now hold that factual and legal impossibility are indistinguishable and have abolished the defense, adopting statutes similar to MPC 5.01(1) Mistake of fact allowed, no mistake of law y y y y y

**MPC 5.01 (p. 1004) o substantial step test: the actus reus element of attempt is satisfied if one has taken a substantial step towards the commission of the target offense  Must be corroborative of the actor s criminal purpose o (1) A person is guilty of an attempt to commit a crime, if acting with the kind of culpability otherwise required for the crime, he  (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be, or  (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such a result without further conduct on his part, or  (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime o Can be held liable if target offense neither committed nor attempted o Attendant circumstances: the actor need only be as culpable in regard to attendant circumstances as would be required for the target offense o Does away with this impossibility as a defense in (1)(a) o Allows abandonment as defense in 5.01(4)  Pure legal impossibility is still a defense when the actor thinks something is a crime but it is not o Defenses:  No mistake of fact, mistake of law, factual impossibility, or hybrid impossibility  Only defenses are abandonment (5.01(4)) and legal impossibility People v. Gentry (748): guy poured gas on his girlfriend while they were drunk and arguing, she walked near a stove and caught on fire, he put out the flames, guilty of attempted murder conviction overturned; facts can t be true more than likely influenced by BWS o Attempted murder requires an intent to commit the target offense (i.e. intent to kill) and since this was lacking he is not guilty People v. Thousand (783): cop acted like a little girl on internet to get some pervert to try to get in his pants, pervert sent a picture of his/someone s Johnson and went to McDonald s to meet the girl , charged with attempted distribution of obscene material to a minor was able to be charged


Legal impossibility is not a defense to a crime in the jurisdiction of this case (they had adopted a statute similar to the MPC) Commonwealth v. McCloskey (797): guy was partially through between lairs of prison fence when the decided to go back to his cell o Voluntary abandonment or renunciation of criminal purpose is a defense to the crime of attempt  Rationale: a person who voluntarily gives up their crime is no longer a threat to society; provides an incentive for an actor to turn away from a criminal enterprise before the target offense is consummated o

Said: the crime is the request ; ex: Said asking Terry to kill Brittany Common Law: a person is guilty of solicitation if he intentionally invites, requests, commands, or encourages another person to engage in conduct constituting a felony or a misdemeanor involving a breach of the peace or obstruction of justice o It is not solicitation to merely ask another person to assist in the crime (be an accomplice) must ask the other party to perpetrate the crime himself to be guilty of solicitation o Specific Intent crime must intentionally commit the actus reus of solicitation with the specific intent that the other person commit the target offense o Solicitation to commit a felony may be a felony, but it will be a lesser felony than the felony solicited o NOT liable for uncommunicated solicitations MPC: 5.02 it is a crime to solicit any offense, even any misdemeanor o Asking another person to merely be an accomplice would be sufficient for a finding of solicitation under the MPC o Also must have the same specific intent as in the common law o A solicitation to commit any offense other than a first-degree felony is treated as an equal grade as the target offense o A person IS liable for uncommunicated solicitations (i.e. attempt to solicit) o Renunciation it is a defense under the MPC if the soliciting party  (1) completely and voluntarily renounces his criminal intent  (2) persuades the solicited party not to commit the offense or otherwise prevents the commission of the crime  NOT a common law defense Merger the crime of solicitation merges into the crime solicited if that offense is committed or attempted by the other party o Ex) Anna gets Bill to kill Carol. A may be charged with murder (or attempt if Bill tried but failed)  BUT, If Bill agrees but is arrested before the attempt then Anna and Bill may be charged with conspiracy to commit murder State v. Cotton (805): guy wrote a letter from prison attempting to get his wife to convince their daughter not to testify against him after he molested her, the letters were never mailed so no solicitation o This jurisdiction had not accepted the MPC rule that uncommunicated solicitations are sufficient for liability, but court is wrong in application of statute (says otherwise attempts too)


Common Law basics: the agreement is the crime- when two people get together and agree to commit a crimewhether or not you actually do it doesn t matter A solicitation that is accepted becomes a conspiracy Why is conspiracy viewed as dangerous? People acting together to carry out crimes is more dangerous that one persona acting alone; heightened fear of people working in concert to commit a crime MPC: two or more people getting together with a common objective of carrying out a crime; don t need to have taken an overt act for serious crimes; but do need an overt act for less serious crimes. Remember, conspiracy is a specific intent crime: must have 2 intents- 1) the intent to agree and 2) the intent to carry out the crime; therefore, cannot be guilty of conspiring to commit an unintentional crime, bc how can you have agreed to commit a crime if it was unintentional? COMMON LAW a partnership for criminal purposes ; a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means o The crime is complete on formation of agreement no overt act in furtherance of crime is necessary  Some states require that one party must at least commit an act in furtherance of the conspiracy for liability to exist o Twofold specific intent  (1) intent to combine with others  (2) intent to accomplish the illegal objective o People v. Swain- two defendants, one shot out of the van (claiming he did so widely), the other was present in the van, some guy was killed conviction of second degree murder overturned  Conspiracy is specific intent crime defendant must intend to commit the target offense- here there can be no liability to because the jury was instructed on implied malice, which means they might have convicted the defendant s despite a lack of intent to kill o Conspiracy does NOT merge with the completed crime they are two separate charges  So Ds are guilty of both conspiracy and the completed offense- they DO NOT MERGE  Conspiracy to commit a felony is usually a felony of a lesser grade than the target offense o Rationale: group action is considered more dangerous than individual action, groups with many people involved are also less likely to abandon their criminal purpose o Most courts require that an actor act with the purpose of promoting or facilitating the offense = knowledge + indifference to whether the offense is completed is no enough for liability  Sometimes purpose can be inferred from knowledge  the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself y Inference could come from: o When supplier has a stake in the venture o When no legitimate use for the goods or service exists o Where the volume of the business with the buyer is grossly disproportionate to any legitimate demand or when sales for illegal use amount to a high proportion of the seller s total business


o o

o o o

People v. Lauria: guy ran a phone answering service that he knew was used by hookers no liability y Defendant took no direct action to further the activities; there is no evidence of his special interest in the activities o Did not excessively charge, no an unusual quantity of business Bilateral v. Unilateral Approach: Bilateral Conspiracy two or more persons must agree; agreement between two or more persons to commit an unlawful act or a lawful act by unlawful means  People v. Foster: guy approached another guy about helping with a robbery, other guy feigned agreement and went to the police y This state had bilateral rule of conspiracy so therefore defendant is not liable Ex) Attempted Conspiracy maybe an agreement to do something but not exactly what, one person wants to kill a bunch of people, the other wants to knock them out and take their money Unilateral Conspiracy: the act of a single individual who believes that he or she is agreeing with another person to commit a crime is sufficient to establish a conspiracy (CL tends to be bilateral only) Defenses:  No factual impossibility or legal impossibility  Only abandonment (once act completed not a defense)

MPC 5.03: o Basic gist: 2 or more people o **Pay attention to the type of crime- An overt act in furtherance of the conspiracy is required (except in the case of felonies of the first and second degrees) o Mens rea purpose to promote or facilitate object crime (not just knowledge normally) o Under the MPC the conspiracy DOES merge with the target offense if ongoing (so they are guilty of the completed offense), but 1.07(b): cannot be convicted of more than one offense if one is conspiracy (limited in nature) o A conspiracy to commit any crime other than a felony of the first degree is graded the same as the target offense o Mere knowledge not enough for liability, must have purpose of promoting or facilitating offense o Unilateral Conspiracy all that is necessary for conspiracy is that the actor agree with the other person (the other person need not agree); unilateral IS allowed under MPC o Defenses:  No factual impossibility or legal impossibility  Only abandonment must have complete and voluntary renunciation and attempt to thwart success of conspiracy Attendant Circumstances, Ex) A and B conspire to batter C, who is a police officer, neither of them know that he is a cop are they liable for conspiracy to commit battery upon a law enforcement officer? o Note that if the action was carried out A and B would be liable for the completed crime (battery on a law enforcement officer) even though they didn t know that he was a cop o Courts are split:  Some hold that there must be knowledge of the attendant circumstances (C is a cop) for conspiracy they hold that there is a higher mens rea element (as to the attendant circumstances) required for certain crimes  Other courts hold that such knowledge is not necessary - the same policies relating to the underlying offense should relate to conspiracy, thus if it s a strict liability offense then the same rules should govern conspiracy  The MPC intentionally left the issue open for judicial discretion in particular cases Pinkerton v. United States (813): guy conspired with his brother to defraud the IRS, he did not defraud himself because he was in prison, but his brother did defraud he is liable


**Q: if you have a conspiracy, are you liable for the offenses carried out even if you are not directly involved? A: yes. If you are part of the conspiracy you are liable for whatever that conspiracy does o To avoid liability, the defendant would have had to complete renounce his criminal purpose so long as the conspiracy continues, a conspirator may be liable for substantive acts of others o The acts in question were performed in furtherance of the conspiracy between the two o overarching liability Commonwealth v. Azim (829): defendant drove a car which stopped; two others got out and assaulted and robbed someone; they then got back in and defendant drove away guilty o Conspiracy may be found by association with the alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, participation in the object of the conspiracy In bilateral jurisdictions it is no defense to conspiracy that your alleged co-conspirator was acquitted (where they are tried separately) o


Accomplice Liability
Common Law: liability of an individual who knowingly, purposefully, or voluntarily combines with the main actor in the commission or attempted commission of a criminal offense. Summary: 1) Actus Reas: must participate in the crime and 2) Men s Rea: must share the intent (to cause result or to cause conduct that results in the accident)  Principal: the one who commits the actus reus of the crime  Accomplice: someone who assists or encourages the carrying out of a crime, but does not commit the actus reus of the crime o An accomplice is guilty of the substantive offense committed by the perpetrator because of his complicity in the crime  Derivative Liability: liability is derived from the violation of the law by a primary party to which the secondary party offered assistance o Assistance an accomplice is liable if they assist in the crime, thus a person can be an accomplice if they solicit or encourage the crime, or if they aid in its commission  but-for causation is not required for accomplice liability so long as the conduct facilitated the result / made it easier there can be liability y Once it is determined that the defendant was an accomplice the causation requirement is satisfied by showing that the principal caused the substantive crime  The conduct of the alleged accomplice must in fact assist in the commission of the crime  There can be liability for trivial assistance (i.e. the crime would have occurred anyway)  Mere presence does NOT constitute assistance y State v. Vaillancourt (880): guy was standing outside watching as his friend break into a house through the window not guilty as an accomplice o Accomplice liability requires active participation by the defendant mere knowledge and presence are not sufficient o The dissent argued that the presence of the other furnished moral support sufficient to aid in the commission of the crime  One may be an accomplice for an omission when the person was under a duty to act o Mens Rea:  (1) Must intentionally engage in the act of assistance or encourage completion  (2) With the level of culpability required in the definition of the offense in which she assisted y Recklessness if the crime required recklessness, it is enough that the defendant was reckless as to the ensuing harm y Negligence if the crime required negligence, it is enough that the defendant was negligent as to the ensuing harm y Ex) A tells B, a taxi driver, to hurry to get her to the airport, B speeds and hits a pedestrian A may be an accomplice to B s reckless conduct  State v. Hoselton: guy was with friends who broke into a storage shed and stole stuff, he did not know of their intent to steal, charged as accomplice for being a lookout not guilty y There was no evidence that he shared the criminal intent ; he had no prior knowledge of the thefts and did not expressly agree to be the lookout; did not have intent to help commit the crime o Natural and Probable Consequences Doctrine: accomplice is liable for any offense that he intended to facilitate and also for any reasonably foreseeable offense committed by the principal in the first degree


4 step test to determine if common law natural and probable consequences doctrine applies: y (1) Did the primary party commit the target offense? y (2) Was the secondary party an accomplice to that offense? y (3) Did the primary party commit another crime beyond the target offense? y (4) Was the later crime a reasonably foreseeable consequence of the original criminal act encouraged or facilitated by the aider and abettor?  Some states have rejected the natural-and-probable-consequences doctrine  State v. Linscott: guy went with another guy to rob a house, the other guy shot and killed the homeowner, defendant charged as an accomplice y Natural and Probable Consequences Doctrine- the court says that the murder was a foreseeable consequence of the robbery y Liability for a secondary crime can be found where (2 part test to prove D s guilt): o (a) The actor intended to promote the primary crime, and o (b) The commission of the secondary crime was a foreseeable circumstance of the actor s participation in the primary crime y The natural-and-probable consequences doctrine is not in the MPC o The MPC requires that the accomplice have the mental state required for a conviction of the offense o In the case of Linscott: since the defendant did not have not intent to kill, he would not be found guilty under the MPC o What if the principal in the first degree is acquitted?  If no offense occurred, the accomplice must be acquitted  If the offense was justified, the accomplice must be acquitted  If the actions of the principal in the first degree were merely excused an offense has occurred and the accomplice may be liable (an excuse is personal to the person offering it the principal s excuse does not transfer to his accomplice) o Defenses:  Withdrawal must take place before events are unstoppable  Inciter communicate a renunciation of crime to perpetrator  Abettor must render the assistance defendant gave ineffective MPC 2.06 (p. 984): o Principle:  Acting with requisite mens rea, actually engages in act or omission that causes crime, or  acting with the requisite mens rea, he causes an innocent or irresponsible person to commit the crime o Accomplice:  Can be an accomplice even if perpetrator has not yet been prosecuted, has been convicted of a lesser crime, has been acquitted, or is feigning  (3): a person is an accomplice of another person in the commission of an offense if: y (a) with the purpose of promoting or facilitating the commission of the offense, he o (i) solicits the other person to commit it, or o (ii) aids or agrees or attempts to aid the other in planning or committing it, or o (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so  (4) when causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense y Essentially same in regard to negligence and recklessness as common law (i.e. must intentionally perform actus reus of the assistance but in regard to the prohibited result only demonstrate the necessary mens rea for substantive offense) o Defenses 2.06(6) (p. 984):


(b) Inevitable Incidence Ex) customer of a prostitute is not guilty of accomplice liability Abandonment: y (1) terminates participation before the crime is committed, and y (2) gives timely warning to law enforcement or otherwise makes proper efforts to prevent the commission of the offense o Riley v. State: two guys shot into a crowd and hit someone, there was no way to tell whose gun had caused the injury, defendant charged as an accomplice  The court holds that the statute merely says that an individual act with intent to promote the conduct that makes up the actus reus but with regard to the prohibited result (in this case someone being seriously wounded) the actor need only show the culpable mental state that is required for the underlying crime y Here: the defendant acted with intent in facilitating the shooting of the guns into the crowd, he was reckless as to whether someone might get seriously injured thus he can be guilty  Based on the MPC 2.06(4) (should apply under the common law too)  Don t have to show that they intended to hit someone; only to show that someone intended to promote or facilitate the conduct. Must prove intent for conduct, not necessarily intent for result. o Attempted solicitation is sufficient for liability under the MPC o Agrees to aid it would be enough for liability under the MPC that a person agree to drive someone to the scene of the crime but then on the day of crime fails to show up for some reason  Common law requires actual assistance be rendered Actus Reas: State v. VT (868): 3 boys spent the night at an apartment, the owner found guns and a camcorder missing after they left; there was video of one of the boys discussing pawning the camcorder; VT was in the background, but was not talking or gesturing in any way; is VT an accomplice to the theft of the camcorder? o VT is just present at the scene- mere presence at the scene of the crime is not enough to establish accomplice liability; however, mere presence AS A LOOKOUT is enough (as long as you know you are acting as a lookout) o MPC 2.06(3)(a) Wilcox v. Jeffery (883): famous musician came the UK, the defendant knew it was illegal for him to play in the country but he met him at the airport, bought a ticket to the show, and wrote a review about the show for his magazine; did not arrange for the musician to come to the country guilty as an accomplice o He had an interest that the criminal activity be completed Distinguishing Direct from Accomplice Liability: Bailey v. Commonwealth (892): two rednecks were arguing on their CB radios, one of them called Patton and the other guy homosexuals, defendant knew the other guy was real drunk, called the cops and told them that defendant was on porch threatening to shoot up the neighborhood, told the other guy he was coming over to the house after him in a blue and white car so he should wait on the porch with his gun, the other guy was drunk and legally blind, he didn t realize it was the cops who showed up and he shot at them, they shot back and killed him o Bailey is the primary actor because he orchestrated it- cops are innocent agents in the homicide. They were NOT working in concert with Bailey. o The cops are not liable for accomplice liability bc they didn t do anything wrong- they went to a house where they believed there to be a dangerous man who then shot at them. o State had the law that one who effects a criminal act through an innocent or unwitting agent is a principal in the first degree  Bailey undertook to cause Murdock harm and used the police to achieve this goal o An intervening act which is reasonable foreseeable does NOT break the causal chain



The jury determined that Murdock s death could have been reasonable foreseen and thus the conviction was appropriate

MPC 2.06(2)(a) (p. 984) a person is liable for the acts of an innocent third party if with the requisite mental state for liability for the principal offense, he causes a third party to commit that offense  innocent agency or innocent instrumentality doctrine