Criminal Law Outline

Actus Reus + Mens Rea + (Causation ONLY RESULT CRIMES) + (Social Harm) + Attendant Circumstances = Crime (Unless valid defense)

ACTUS REUS: a necessary element for EVERY crime

must be an act, and must be voluntary (both Common Law and MPC)*we do not punish people for their thoughts or their status—there must be an act (or failure to act)

Voluntariness--Model Penal Code 2.01 (1-2) p. 178

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or theomission to perform an act of which he is physically capable.

(2) The following are NOT voluntary acts within the meaning of this Section:(a) a reflex or convulsion;(b) a bodily movement during unconsciousness or sleep;(c) conduct during hypnosis or resulting from hypnotic suggestion;(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either

conscious or habitual (IE coerced action/duress)** To qualify for criminal liability, conduct must be voluntary (conscious choice to act/will)

voluntary act definition: a movement of the human body that is, in some minimal sense, willed or directed orcontrolled by the mind of the actorCAN ALSO BE THE RESULT OF HABIT/INADVERTENCE AS LONG AS THE ACTOR COULD HAVE ACTED DIFFERENTLY

to qualify as voluntary:-actor must have conscious control over the act-could the actor have acted differently?-act must occur in the sequence of events that lead to the harm

purpose of voluntary act requirement: blame and punishment for free will—if you choose to put bad thoughtsinto action, you deserve to be punished—we do not punish people for their thoughts alonecriminal law is built on the presumption of free will, that people are generally responsible for what they do

involuntary act definition: those over which individual has no conscious control

QUESTION: was there interference with the conscious mind’s direction of the body?if yes: not voluntary actif no: voluntary act

Martin v State 1944, p. 177 (being forced in public by police while drunk is not a voluntary act, no culpability)“any person who, while intoxicated or drunk, appears in any public place where one or more persons

are present…and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall on conviction be fined”

“VOLUNTARY” NOT IN THE STATUTE, BUT COURT READING IN THE COMMON LAW PRINCIPLE OFVOLUNTARY ACT REQUIREMENT INTO IT

D FORCED INTO PUBLIC BY POLICE, ONLY VOLUNTARILY GOT DRUNK AT HOME, WHICH IS NOT A CRIMEVALID DEFENSE THAT HE WAS FORCED BY POLICE, NOT A VOLUNTARY ACT

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People v Decina 1956, p. 181 (driving with knowledge of epilepsy meets voluntary act requirement)*time framing issue: not guilty of offense unless actus reus is voluntary, accompanied by mens rea,

AND actus reus is actual and proximate cause of the social harmKNEW HE WAS SUBJECT TO SUDDEN, UNCONTROLLABLE SEIZURES—ACTUS REUS WAS DRIVING

A VEHICLE SO AS TO CAUSE THE DEATH OF A HUMAN BEING (BC KNEW HIS CONDITION)MENS REA WAS NEGLIGENCE*not necessary that all aspects of conduct be voluntary, only that conduct included a voluntary act(turning on ignition, driving car negligently)

Robinson v California 1962, p. 170 (act v status… being an addict, UNCONSTITUTIONAL TO PUNISH STATUS)A STATUS OR CONDITION DOES NOT CONSTITUTE AN ACT IN CRIMINAL LAWState cannot constitutionally punish a person for their thoughts alone, or for the mere

propensity to commit crimes—violates 8th amendment, cruel and unusual punishment(boundary between act and status are not always clear)

Addicted = status, NOT an act; a propensity is not an act, violates 8th and 14h amendments of crueland unusual punishment

CALIFORNIA STATUTE IS UNCONSTITUTIONAL = allows a person to be punished at any time simply fora bare desire to commit a criminal act

Powell v Texas 1968, p. 172 (alcoholism is not a valid defense to public intoxication, THERE WAS AN ACT here)whoever shall get drunk or found in a state of intoxication in any public place, or at any private house except his own shall be fined not exceeding $100

NOT PROSECUTED FOR STATUS/CONDITION AS ALCOHOLIC, BUT FOR ACT OF GETTING INTOXICATED AND GOING TO A PUBLIC PLACE

FIRST DRINK OF THE DAY WAS VOLUNTARY—SATISFIED VOLUNTARY ACT REQUIREMENT

Does not follow Robinson v CA, there is no cruel and unusual punishment here:-here, he is not convicted on being an alcoholic, but for being drunk in public=act-here, not punishing a mere status, nor regulating behavior in one’s private home-far cry from being an addict, chronic alcoholic, mentally ill, etc-here there is an actus reus, in Robinson there was not

Omission—Failure to Act

omission substitutes for a voluntary act when D has a legal duty to act

Model Penal Code 2.01 (3), p. 187not every moral obligation to act creates a legal duty to act: usually no legal duty to act to prevent harm to another, even if one can do it without risk and even if the victim will die—we are not our brother’s keepers in criminal law

general rule: omission will not support liability UNLESS the law provides that the individual has a special duty to actpurpose: criminal conduct requires guilty state of mind, and difficult to ascertain it in one who fails to act

criminal law should not be used to force people to act to benefit others—limited to punishing moral wrongdoings, not non-doings

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:(a) the omission is expressly made sufficient by the law defining the offense; or(b) a duty to perform the omitted act is otherwise imposed by law

**omission + duty can fulfill conduct requirement when language does not mention omission (failure to act)**status relationships, contracts, statues, give rise to duties

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5 MAJOR CATEGORIES OF LEGAL DUTY-certain status relationships (common law duty to protect others in special relationship)

-parent-child-spouse-spouse-employer-employee-owner-customer-inkeeper-guest-common carrier-passenger

-when statute imposes duty of care (provide food and shelter to minor children)-when contract imposes duty of care (ie implied in law k re babysitter to protect ward)-when voluntarily undertaking care or rescue (thus excluding others from helping)

where one has voluntarily assumed care of another so as to seclude helpless person fromthe aid of others

-when actor himself created peril (one who creates risk of harm must act to prevent it)

Minimum Requirements of Culpability—Model Penal Cod 2.02 (1), p. 235(1) Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense…

Jones v United States 1962, p. 184 (if legal duty imposed + not performed, omission=failure to act=voluntary act)WAS D UNDER A LEGAL DUTY TO ACT TO CARE FOR THE CHILD? A QUESTION FOR THE JURY TO DECIDEif he was, failure to act (omission) = actIF LEGAL DUTY OF CARE EXISTED, THEN OMISSION IS AN ACT

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MENS REA

vicious will, evil mind, moral blameworthiness, culpable state of mind

rationale: retribution: if you commit actus reus in morally innocent manner, do not deserve punishment belief in freedom of will and ability to choose between good and evil

COMMON LAW

Intentionally: must intend a certain resulthomicide: intend death of anotherarson: intend to destroy a dwelling

INTENTIONAL IF:(1) it was D’s conscious object to bring about a certain resultOR(2) if D knew that the harm was practically certain to occur as a result of conduct

*intent pertains to the result itself, not to the act that causes the result

general intent crime: no intent/purpose to do some future act beyond the conduct that constitutes the actus reus of the crime

specific intent crime: intent/purpose to do some future act or achieve some further consequence beyond the conduct or result that constitutes the actus reus of the crime

Knowingly: some offenses require knowledge of a certain attendant circumstance

KNOWINGLY IF:(1) aware of the fact(2) correctly believes that the fact exists OR(3) suspects that it exists and purposely avoids learning whether he is correct (“willful blindness”)

Recklessly: if D consciously disregards a substantial and unjustifiable risk of harm*must be subjectively aware he is taking a substantial and unjustifiable risk

Negligently: if D should be aware that conduct creates a substantial and unjustifiable risk of harm

*by taking this risk, D is not acting like a reasonable person

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MPC defines 4 mental states (p. 214)—MPC Sect. 2.02 (2)(a-d)

PURPOSELY (subjective)

KNOWINGLY (subjective)

RECKLESSLY (subjective)

NEGLIGENTLY (objective)

Conscious object/wants to engage in such conduct or cause such result

Aware of nature of conduct or aware that such attendant circumstances exist

Substantial risk Substantial risk

Aware, or believes/hopes attendant circumstances exist (if they exist)

Practically certain conduct will cause result

Unjustifiable risk Unjustifiable risk

Aware of attendant circumstances (if they exist), or aware of their high probability of existence

Actor has awareness of risks above (known to actor) AND DISREGARDS THE RISKS

Actor should have been aware of risks above, but was not(failure to perceive)

Disregard of risk is a gross deviation from standard of conduct

Failure to perceive is a gross deviation from standard of conduct

That a law abiding person would observe in actor’s situation

That a reasonable person would observe in actor’s situations

**gradations/degrees of blameworthiness: purposely (most punishment) to negligently (lesser punishment)

MPC Sect 2.02(5): the greater mental state includes the lesser mental stateif purposely, then also knowingly, recklessly, and negligentlyif recklessly, then also negligently

**MPC also recognizes a person can simultaneously have more than one mental state, and that the definition of a crime often entails use of multiple mental states

2 types of evidence, both drawn on to prove or disprove mental states:(1) direct—prove point without inferences

-can be weak or strong depending on witness (sincerity, accurate perception, recounting)(2) circumstantial—one or more inferences must be made to prove point

-can be weak or strong depending on the strength of the inferences it supports

Morisette v United States 1952, p. 231 (no mens rea=no intent=no knowledge=no culpability (conversion gov’t))“whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority sells, conveys, disposes of any record, voucher, money, or this of value of the US shall be fined…”

BELIEVED PROPERTY TO BE ABANDONED, THEREFORE NO INTENT TO STEALSPECIFIC INTENT TO STEAL IS AN ELEMENT OF LARCENY

NOT A STRICT LIABILITY OFFENSE, CONGRESS MUST HAVE INTENDED MENS REAstatute interpreted to require the mens rea of common law larceny—must prove intent to steal

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Strict/Absolute Liability: crimes that do not require culpable mens rea, no evil-meaning mind

*D may be convicted of offense if he committed prohibited conduct without regard to mental state*commission of actus reus, without proof of mens rea, is sufficient to convict D

IES-malum prohibitum offenses like speeding-statutory rape

MPC Sect. 2.05 (requirements of culpability do not extend to these SL offences) p. 227 (ie pubic welfare)MPC strongly disfavors SL by only allowing it for offenses that do not carry any prison sentence whatsoever

Attributes of SL crimes-penalties for the offense are minor (fine, infraction, NO PRISON)-prohibited activity provides inherent notice of wrongdoing to the actor-requiring proof of mens rea would be costly in terms of litigation and deterrence-usually involve public welfare cases

FACTORS to determine if SL (La Fave, p. 239, applied in People v Taylor)(1) Legislative history of statute and context(2) Guidance from context within statute (if mens rea in other parts of statute but not in this, SL)(3) severity of punishment

greater the punishment = more likely fault requiredlighter the punishment = more likely SL

(4) Seriousness of public harm statutes seeks to prevent (high=SL)(5) Defendant’s opportunity to ascertain the true facts (if not easy, not SL)(6) Difficulty of proving mental state (if difficult=SL for effective enforcement)(7) Number of prosecutions expected under statute (if many=SL, if few=fault)

*the extent to which conduct prohibited contains special risks to the public or inherent notice of wrongdoing

often carries significant weight with courts when interpreting whether a crime is SL or fault-based

Methods Courts use to Interpret Criminal Statutes-Statutory Language-Legislative History-Criminal Law Traditions in Common Law-Basic Criminal Justice Policy

MPC for Statutory Silence or Ambiguity regarding mens rea p. 236

Silence: MPC 2.02(3) if statute silent and not SL crime, prosecution must prove recklessness at least

Ambiguity: MPC 2.02(4) if mens rea has been articulated at all in the statute, it applies to all materialelements of the crime in the statute

-principle exception—SL—public welfare cases (see p. 240)

*MPC strongly disfavors SL, narrows and constrains it

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People v Taylor 2001, p. 239 (for possession of cane sword, D must have element of mens rea to be culpable)any person who does any of the following is punishable by imprisonment not exceeding one year

-possess any . . . cane sword*D did not know the cane contained a sword—NEGATED MENS REA NOT A STRICT LIABILITY OFFENSE—knowledge mens reaCOURT APPLIES LA FAVE’S 7 FACTORS OF STRICT LIABILITY TO ANALYZE STATUTE

Supreme Court imputed “knowledge” mens rea to dirks and daggers, court here reasonedsame mens rea for cane sword

Garnett v State 1993, supp (STATUTORY RAPE is SL offense, no defense of mistake of fact, no mens rea element) MD Rape Statute:

(a) any person is guilty of rape in 2nd degree if he engages in vaginal intercourse with another person:

(2) who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know (RECKLESS/NEGLIGENT) the

other person is mentally defective(3) who is under 14 years of age and the person performing the act is at least 4 years older

than the victim (SL)(b) any person violating the provisions of this section is guilty of a felony and upon conviction is

subject to imprisonment for a period of not more than 20 yearsPLAIN LANGUAGE OF STATUTE POINTS TO STRICT LIABILITY CRIME—(a)(2) has mens rea, but (a)(3)

does not, and D is charged with (a)(3)LEGISLATURE INTENDED NO MENS REA IN (a)(3)Mistake of age is not a valid defense

TRANSFERRING INTENT

potentially applies when the physical person hurt or killed is different from the one D meant to hurt/killLEGAL FICTION TO RESOLVE BAD AIM CASES ONLY APPLIES WHEN D ACCOMPLISHES THE SAME KIND OF HARM AS ORIGINALLY CONTEMPLATED*only the identity of the victim is differentUSUALLY ONLY APPLIES TO INTENTIONAL WRONGS

*courts split on whether-it should apply to a single, or all unintended victims-it creates attempt liability for bystander victims People v Scott

*criticism of doctrine:-it is unnecessary, bc identity of victim is not part of the definition of the offense, so no need to transfer

victims—actus reus and mens rea requirements still met*could be avoided if courts rejected TI doctrine and simply determined whether D had mens rea to cause

the particular harm required in the charged offense

People v Scott supp (inadvertently killed bystander, meant to kill another, intent transfers, guilty of murder)THIS COURT SAYS TRANSFERRED INTENT CREATES ATTEMPT LIABILITY RE BYSTANDERS

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CAUSATION: (whether D’s conduct sufficiently and directly caused result to warrant imposing liability)

ONLY AN ELEMENT IN RESULT CRIMES (NOT CONDUCT CRIMES)*typically only arise in homicide and attempted homicide prosecutions

MUST BE A LINK BETWEEN D’S VOLUNTARY ACT AND THE HARM CAUSED

ultimate question: was D’s conduct a sufficiently direct cause of the result to warrant liability?

The 2-STEP TEST for causation, prosecution must prove both

(1) BUT FOR CAUSE (find out what happened): without D’s act, the injury/death would not have occurred

IF 2+ CAUSES (multiple act causes): when each act would have produced the result, use modifiedTEST: “result would not have occurred when it did/as it did but for D’s act” [or if 2nd cause was a substantial factor in bringing about result, each act is sufficient]

ie if one independent act accelerated the death caused by the other actIF ACTING IN CONCERT WITH EACH OTHER—CONSPIRACY LIABILITY

(2) PROXIMATE CAUSE (find out who is responsible): are D’s actions so remote or attenuated that it would be unfair to hold D responsible? [the result must be the natural and foreseeable consequence of D’s act]

If yesno causation If nocausation present

MUST BE a sufficiently direct causeFORESEEABILITY IS KEY: if foreseeable to reasonable person in D’s situation, yes proximate cause

**the higher the probability that result is foreseeable, greater likelihood of causation

-Result MUST occur within natural and continuous sequence-D is responsible for the natural and foreseeable consequences that follow from the act

Intervening Causes: relieve D of liability, break in causal chain:

an act or event, that comes after D’s act but before social harm (ie death), AND contributes causally to the social harm

(1) Dependent/Responsive Cause (occurs in response to D’s voluntary act, or dependentupon D’s act)

TEST: was it bizarre or unusual? if yesno proximate cause if noproximate cause

(2) Independent/Coincidental Cause (would have occurred anyway, no control over it)TEST: was it foreseeable to D? if yesproximate cause if nono proximate cause

**ies of intervening causes: acts of nature, acts of the victim, grossly erroneous medical maltreatment

(medical negligence is not enough), or acts of 3rd parties

IF 2+ ACTORS: other actors break causal chain only if mental state and blameworthiness play majorroles in additional actor’s acts**first actor will be found NOT to have been proximate cause of result

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Doctrines that MAY AFFECT CAUSATION ANALYSISEggshell Victim Rule

you take your victim as you find him, liable

De Minimus Contributionif D’s contribution to social harm is minimal/minor, relieves him of criminal liability

Intended Consequences Doctrineif you intended the consequences, you are liable EVEN IF THERE IS AN INTERVENING CAUSEif result happens and you intended it, even if it happened in an unforeseeable manner, liable(IE: D wants to poison V, leaves poison on table and X gives V poison instead not knowing what it

was D liable for poisoning bc he intended to poison V)

Free, Deliberate and Informed Human Interventionif intervening agent intervenes voluntarily, knowingly and intelligently, D more apt to be relieved

of liability than if intervention was due to natural force or a person not fully in control(IE if D assaults V, leaves V in road, later X robs V while unconscious, D is not liable for robbery)

Commonwealth v Root (see below, blue case)

Apparent Safety Doctrinewhen D’s active force has come to rest in a position of apparent safety, some courts will stop

following itif dangerous situation created by D is over, victim reached apparent safety, D not responsible for

ensuing results(IE V is threatened by spouse, leaves house and goes to dad’s house, late at night so V sleeps outside

and dies of freezing—spouse not responsible for death bc V reached safety and chose to sleep outside—V would also lose under Free, Deliberate, Informed Human

Intervention)

Omissionswill rarely, if ever, supersede an earlier voluntary wrongful act

Intervening Causes (Dependent v Independent)—see above

STEPS IN CAUSATION ANALYSIS (Common Law)

(1) was it a result crime? if yes go to 2(2) was D’s act the But For cause? go thru test above, if yes go to 3(3) was D’s act the Proximate cause? go thru test above, if yes, go to 4(4) were there Intervening causes? Dependent or Independent? go thru test above

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State v Jenkins 1981, p. 482 (stabbed victim, victim died from reaction to treatment, Ds act was proximate cause)ILLUSTRATES EGGSHELL VICTIM RULE

D stabbed victim (proximate cause)V rushed to hospital, had common procedure and died from rare allergy (but for cause)

DEPENDENT INTERVENING CAUSE, NOT BIZARRE/UNUSUAL, THEREFORE STABBING WAS PROXIMATE CAUSE OF DEATH, D LIABLE

People v Flenon 1972, p. 483 (victim died from blood transfusion, med negligence foreseeable, proximate cause)**medical maltreatment must be grossly erroneous to be an intervening cause—not mere negligenceGENERAL MEDICAL NEGLIGENCE IS FORESEEABLE, GROSS NEGLIGENCE IS NOTDEPENDENT INTERVENING CAUSE, NOT BIZARRE/UNUSUAL BC INHERENT RISK IN BLOOD

TRANSFUSIONS, THEREFORE FORESEEABLED’s act was proximate cause of death

State v Echols 1995, p. 485 (V fell calling for help, D caused her injury, proximate cause—eggshell victim rule)DEPENDENT INTERVENING CAUSE, NOT BIZARRE/UNUSUALfalling is a natural reaction to the act of being robbedD’s robbery was proximate cause of harm

MPC Causation p. 494—this is abbreviated, see casebook for full statute(1) Conduct is the cause of a result when:

(a) it is an antecedent but for which result would not have occurred, AND(b) relationship between conduct and result satisfies any add’l causal requirements of Code or law defining

offense(2) if purposely or knowingly is an element, the actual result must be within the purpose or contemplation of actor(3) if recklessly or negligently is an element , result must be within risk of which actor is aware or should be aware**exceptions to each are found on p. 494

People v Kibbe 1974, p. 486 (death should have been foreseen even though not intended by D, proximate cause)DEATH IS A FORESEEABLE RESULT OF D’S ACTIONSVICTIM COULD NOT EXTRICATE HIMSELF OF ATTENDANT CIRCUMSTANCESTHEREFORE D LIABLE FOR 2ND DEG. MURDER

Possibilities of Relief of Causation:(1) victim was a DEPENDENT INTERVENING CAUSE re his treatment of the attendant

circumstances after ditching his car on the side of the road)(2) driver was INDEPENDENT INTERVENING CAUSE re he was speeding

COURT HAD BROAD INTERPRETATION OF CAUSATION: in the chain of events, the RISK of death was foreseeable(narrow = specific RESULT of death must be foreseeable)

Commonwealth v Root 1961, p. 489 (victim drove recklessly, D not direct cause of death, no proximate cause)D and decedent were in drag race, decedent recklessly tried to pass D, died in head on collision with truckDECEDENT’S RECKLESS DRIVING BROKE CHAIN OF CAUSATIOND NOT CULPABLE FOR DEATH—NOT PROXIMATE CAUSEdecedent’s reckless driving was of his own accordcourt interprets proximate cause STRICTLY, death must be a direct proximate cause of D’s drivingwhile D was driving recklessly, decedent brought about his own death by driving on wrong side of road

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[SOCIAL HARM]

Destruction of, or injury to, or endangerment of, a socially valuable interest

Result Crimes: social harm is the specific result (ie homicide = death of another human being)Conduct Crimes: punishes the conduct, not the harm that results (ie drunk driving)

ATTENDANT CIRCUMSTANCES

Facts that exist at the time of the actor’s conduct or at the time of a particular result—required to beproven in the definition of the offense

IEs:homicide: victim is a human beingdrunk driving: that the driver was under the influence of alcoholrape: the victim did not consent, [victim was not actor’s wife]larceny: the property did not belong to the actor

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HOMICIDE (the killing of another human being)

Doctrinal StructureActus Reus: the taking of another person’s lifeMens Rea: depends on the type of homicide

Murder: unlawful killing with malice aforethought malice: (1) express=intent to kill-1st degree (2) implied=extreme recklessness-2nd degree depraved/abandoned heart

-intentional: express malice-unintentional: implied malice

**for intentional murder, if you have malice, automatic 2nd degree murder **if you have premeditation and deliberation, bumped up to 1st degree murder

Manslaughter: unlawful killing without malice aforethought-voluntary-involuntary

DEFENSES

Provocation: reduces 1st and 2nd degree intentional to voluntary manslaughter (partial defense)

Self Defense: not guilty of murder/manslaughter of any kind (affirmative full defense)

Imperfect Self Defense: reduces 1st and 2nd degree intentional/unintentional to voluntary or involuntarymanslaughter (partial defense)

Diminished Capacity: reduces murder to manslaughter (partial defense)

Intoxication: partial defense

Insanity: partial defense

Causation Issues

Actus Reus/Mens Rea Issues

[MOF/MOL]

(NO Duress/Coercion, NO Necessity)

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CA Murder Statute PC 189 (p. 325)All murder which is perpetrated by means [enum means] of a destructive device or explosive, a

weapon of mass destruction, knowing use of ammunition designed primarily to penetrate

metal or armor, poison, lying in wait, torture [end of enum means], or by any other willful,deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, [enum felonies] arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under[sodomy with a minor/against another’s will, in prison, any lewd act on a child, oral copulation with a minor.against another’s will/in prison, any anal/genital penetration with a foreign object for a sexual purpose against a minor against his will], or any murder which is perpetrated by means of discharging a firearm from a motor vehicle [end of enum felonies] intentionally at another person outside of the vehicle with the intent to inflict death, is murder OF THE FIRST DEGREE. All other kinds of murder are of the second degree.

To prove the killing was deliberate and premeditated, it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

MPC DIFFERS FROM COMMON LAWMPC as 3 categories of murder (common law has 2: murder, manslaughter)

-murder: purposely, knowingly, recklessly (extreme indifference)-manslaughter: recklessly (but NOT extreme indifference)-negligent homicide:

MPC SIMILAR TO COMMON LAWBOTH DO NOT REQUIRE PREMEDITATION OR DELIBERATION (that is only statutory)

MPC Homicide/Murder (p. 325)A criminal homicide constitutes murder when D kills:

(1) purposely(2) knowingly OR(3) recklessly under conditions manifesting an extreme indifference to value of human life

*no degrees: ALL murders are 1st degree felonies under MPC*does not include term malice: that is a common law term*does not define murder as including intent to cause grave bodily harm

MPC ManslaughterCriminal homicide constitutes manslaughter when

(a) it is committed recklessly, OR(b) a homicide which would otherwise be murder is committed under the influence of

extreme mental or emotional disturbance for which there is no reasonable explanation or excuse. The reasonableness of such explanation or excuse shall bedetermined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be (SUBJECTIVE)

*extreme emotional disturbance is a partial excuse, mitigates murder tomanslaughter (see below)

MPC Negligent Homicide (involuntary manslaughter)

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criminal homicide constitutes negligent homicide when it is committed negligently

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INTENTIONAL KILLING—EXPRESS MALICE

intent to kill = express malice aforethought

1st Degree: D’s act was willful (intent to kill), deliberate (evaluated choice) and premeditated (took time to thinkbeforehand)—premeditation and deliberation (not all states have this requirement in their statute)

HOW TO INFER PREMEDITATION: 2 APPROACHES*must always be MORE THAN intent, the question is how much more?

(1) Strict Approach (Bingham, Morrin)premeditation and deliberation are separate and distinct, and distinct from intentdeliberation is premeditation+PROOF OF REFLECTION

planning/timing: activity of weighting choicemotive/relationship: reason for killingmanner of killing/coolness of D: how killing occurred

preconceived plan

(2) Broad Approach/Jury Discretion Approach - CALIFORNIA (Carroll, Young, Carmichael)premeditation and deliberation the same, little difference between them and intent

2nd Degree: NO premeditation or deliberation, AND NO enumerated means or felonies, BUT YES intent to kill

State v BinghamDELIBERATION = VALUE ADDED TO PREMEDITATION, DISTINCTCANNOT INFER PREMEDITATION AND DELIBERATION FROM INTENT

3-5 mins of strangulation (manner) does not allow us to infer premed/delibit was an intentional killing, but no direct or circumstantial evidence of planning or motiveCANNOT INFER P + D FROM ONLY MANNER AND INTENT WITHOUT PLANNING OR MOTIVE2ND DEGREE MURDER

People v Morrin (Michigan)PREMEDIATED = to think about beforehand for a length of time, HOWEVER SHORTDELIBERATE = to measure and evaluate the major facets of a choice or problem

*no hot blood, MUST have cool mind, no undue excitement*time between initial thought and action should be enough for a reasonable person to give it a “2nd look”

Commonwealth v CarrollNO DISTINCTION BETWEEN PREMEDITATION AND DELIBERATION= INTENTIONAL KILLING1ST DEGREE MURDER (P + D inferred)

planning: thought about gun on headboard, took steps (but could also be heat of passion)motive: he confessed, was resentful of wifemanner: lethal weapon, shot head twice (vital organ)

NO AMOUNT OF TIME TOO SHORT TO FORM PREMEDITATED INTENT TO KILL

Young v StateNO DISTINCTION BETWEEN PREMEDITATION AND DELIBERATION

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= INTENDS TO COMMIT THE ACT AND INTENDS DEATH TO RESULT

Carmichael v StatePREMEDITATION DISTINCT FROM DELIBERATIONPREMEDITATION = INTENT TO CAUSE DEATH, formed before the actDELIBERATION = WEIGHING OF CONSEQUENCES OF ACT,

does not follow Bingham: HERE, P + D CAN BE INFERRED FROM STRANGULATION (MANNER)

*no time limit, decision can be formed in an instant*weapon, manner, nature of killing CAN be used to infer premeditiation

People v Andersonplanning: weak evidencemotive: no motive manner: brutal killing

MANNER (BRUTALITY OF KILLING) ALONE DOES NOT INFER P + D

VOLUNTARY MANSLAUGHTER—PROVOCATION mitigates it from 1st and 2nd degree murder

Provocation/Heat of PassionD acted in a moment of such strong emotion in response to a provoking incident that if affected his

ability to think clearly about his actions and their consequences

intentional killing where actor take a life in a sudden heat of passion as a result of adequateprovocation

PROVOCATION MITIGATES EXPRESS MALICE, AND REDUCES 1ST AND 2ND DEGREEINTENTIONAL TO VOLUNTARY MANSLAUGHER

(MPC extreme emotional disturbance functions the same way as provocation)

rationale: culpability of actor is reduces bc he was adequately provoked

COMMON LAW PROVOCATION TEST:Defendant acted with

(1) an intentional murder mens rea, while(2) actually AND(3) reasonably impassioned by the provoking incident AKA would a person in D’s shoes have been SORELY TEMPTED TO KILL?

WOULD A REASONABLEPERSON HAVE BEEN SORELY TEMPTED TO KILL?

*it is D’s passion that must be reasonable, NOT the killing itself*NEED TO KNOW WHAT APPROACH THE JURISDICTION USES FROM BELOW

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3 Approaches to Adequate Provocation:

(1) Categorical Approach to Common Law

MERE WORDS NOT ENOUGHNO PROVOCATION IF D HAD A COOLING OFF PERIOD BEFORE KILLINGprovoking incident can only be:

-extreme assault or battery against D-injury or serious abuse of a close relative of D-an illegal arrest of D-mutual combat-sudden discovery of spouse’s adultery

*these are the only legally adequate provoking incidents

role of judge and jury:first judge determines if provocation is possible as a matter of lawthen jury will make its own assessment of evidence whether to find provocation

(2) Discretionary Approach to Common Law—modern jurisdictions—reasonable person test

WORDS MAY BE SUFFICIENT (ALTHOUGH USUALLY NOT)USUALLY NO COOLING OFF PERIOD REQUIRED (although timing can influence decisions

regarding reasonableness of passion)NO LIST OF LEGALLY ADEQUATE PROVOKING INCIDENTS

*allows juries to find that any strong emotion may constitute reasonable prov.MORE WEIGHT ON REASONABLE PERSON AS STANDARD FOR ASSESSING D’S PASSION

*in some jurisdictions: D must have killed the person who provoked him, not a 3rd party(misdirected retaliation) DEFENSE CANNOT BE ASSERTED IF D KILLS 3RD PARTY

(3) MPC Approach—extreme emotional disturbance

MPC Provocation Statute: (p. 354)(1) A criminal homicide constitutes manslaughter when:

(b) a homicide which would otherwise be murder is committed under theinfluence of extreme emotional disturbance for which there is

reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be

(2) Manslaughter is a felony in the 2nd degree

MPC TEST: “extreme emotional disturbance test”(1) under the influence of extreme mental or emotional disturbance(2) for which there is a reasonable explanation or excuse(3) from the viewpoint of a person in the actor’s situation (4) under the circumstances as D believed them to be

MORE SUBJECTIVE THAN COMMON LAW TEST, LESS STRINGENT (see below)

[*under MPC, manslaughter is a 2nd degree felony]

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REASONABLE RE EXPLANATION FOR THE EMED, NOT FOR THE HOMICIDEDOES NOT REQUIRE DISTURBANCE TO BE TRIGGERED BY PROVOCATION as long as jury

concludes there is a reasonable explanation or excuse for the disturbanceDOES NOT REQUIRE DISTURBANCE TO BE FROM PARTICULAR CATEGORIESDOES NOT REQUIRE COOLING OFF PERIOD OR TIME FRAMEMORE SUBJECTIVE STANDARD, TAILORING REASONABLENESS TO ACTOR’S SITUATIONMUCH EASIER TO ASSERT PROVOCATION DEFENSE UNDER MPC THAN COMMON LAW

Reasonable Man-of ordinary disposition-not exceptionally belligerent-sober at the time of provocation-of normal mental capacity

In D’s Shoes-not clear how far subjectivity of reasonable person standard the MPC goes-relevant to

-measuring gravity of provocation to a reasonable person-assessing the level of self-control to be expected of a reasonable person

People v Barry (cumulative rage could be adequate provocation, right to give provocation instruction to jury)D still could have been in heat of passion after 20 hours of waiting for victim—question for the jury re

adequate cooling off periodCUMULATIVE RAGE + RECIPROCAL ESCALATIONWife’s taunts, teases, provoked an uncontrollable rage REASONABLE PROVOCATION

-20 hrs cooling off not enough in light of cumulative rage-immasculation, 2 weeks of taunting, inflagrante delicto

A RESONABLE PERSON COULD BE SORELY TEMPTED TO KILL, QUESTION FOR THE JURY

Commonwealth v Carr (D killed one, wounded one when he saw 2 lesbians lovemaking—NOT adequate provoc.)TEST: reasonable person test

REASONABLE PERSON WOULD NOT BE SORELY TEMPTED TO KILL BY SIGHT OF LESBIANSD’s reaction out of tune with provoking incidentCOMMON LAW, NOT MPC TEST

under MPC, would need expert witness to testify as to extreme emotional disturbancefrom D’s situation (subjective test), possibly adequate provocation bc reasonable to actor(would be a question for the jury)

State v Dumlao (Hawaii case, MPC extreme emotional disturbance test, court should give provocation instruct)MD Manslaughter Statute

(b) spousal adultery not a mitigating factor—the discovery of one’s spouse engaged in sexualintercourse with another DOES NOT constitute legally adequate provocation for thepurpose of mitigating a killing from the crime of murder to voluntary manslaughter eventhough the killing was provoked by that discovery

D HAD PARANOID PERSONALITY DISORDERA JURY COULD FIND THIS A PSYCHIATRIC DISORDER AND FIND HIS EXCUSE WAS REASONABLE

FROM D’S PERSPECTIVE, MATTER OF FACT FOR THE JURYPROVOCATION INSTRUCTION GIVEN TO JURY

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In Re Christian S (IMPERFECT SELF DEFENSE)UNREASONABLE YET HONEST BELIEF THAT AN ARMED KID WOULD BE IN PERIL FROM AN

UNARMED KID STANDING 20 FEET AWAYDID NOT MEET ELEMENTS OF IMPERFECT SELF DEFENSE BC NOT IN IMMINENT PERIL

Imperfect and Perfect Self Defense are separate and distinct doctrines—similarity ends with malice-ISD not rooted in mental capacity or awareness of need to act lawfully-can be free on diminished capacity but still (though unreasonably) believe in the need for self-defense in a

given situation**if you believe you need to act in self-defense, you think you are acting lawfully(and therefore aware of obligation to act lawfully)

ELEMENTS(1) actual belief(2) unreasonable belief (yet honest belief) OBJECTIVE STANDARD(3) necessary to defend oneself(4) from imminent peril to life or great bodily injury

State of CA v Taylor (Imperfect Self Defense)

IMPERFECT SELF DEFENSE NEGATES MALICE, REDUCES 1ST AND 2ND DEGREE MURDER TOVOLUNTARY MANSLAUGHER

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UNINTENTIONAL KILLING—IMPLIED MALICE

depraved heart, malignant and abandoned heart, depravity of mind = implied malice aforethought

Implied Malice: Extreme recklessness that reveals an indifference to the value of human life

*MUST KNOW YOUR CONDUCT IS ENDANGERING THE LIFE OF ANOTHER

2 Basic Components(1) Extreme Recklessness: wanton and willful disregard of likelihood of death/great bodily harm

what was degree of risk?what was imminence of risk?is there a lack of justification for taking the risk?is there an awareness of the risk?

(2) Extreme Indifference: callousness, cruelty

what was level of callousness of conduct? (callous/wanton = reckless+)what was level of cruelty of conduct?what was level of dangerousness of conduct?was there a conscious disregard?

*the deliberate perpetration of a knowingly dangerous act with indifference re whether anyone is harmedconscious disregard of a substantial and unjustifiable risk to human lifewhen risk of death is high and justification weak/non-existent, guilty of murder

*default 2nd degree if extreme recklessness + extreme indifference

MPC reckless murder: the act of killing is done recklessly under circumstances manifesting extreme indiff.to the value of human life

CA Standard for Implied Malice (per CA v Watson)(1) natural consequences are dangerous to human life(2) the act was deliberately performed(3) by a person who knows that his conduct endangers the life of another(4) the person acts with conscious disregard for life

PROVOCATIVE ACT DOCTRINEAllows prosecutors to charge 1st degree unintentional murder in jurisdictions where the agency

limitation does not permit FM prosecution AND where predicate felony IS statutorilyenumerated

ELEMENTS:(1) Implied Malice

TEST: did D or his accomplices act with awareness of a substantial risk that hisconduct was extreme enough to likely produce a violent response by their victims?

(2) the killing is attributable to act of D or his accomplice(3) the killing was committed during commission of one of the enumerated feloniesTHEN 1ST DEGREE UNINTENTIONAL MURDER (Taylor v Superior Court)

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US v Fleming (extreme recklessness and extreme indifference)2ND DEGREE IMPLIED MALICE MURDER, no intent to kill but conduct was extreme reckless. and indiff.EXTREME = WANTOND’S CONDUCT WAS WANTON

-70-100 MPH-drunk-drove into oncoming traffic, during rush hourNOT JUST RECKLESS, BUT EXTREME RECKLESSNESS (high amt of risk, no justification of risk,

D was aware of risk and alcohol does not mitigate awareness)

Standard for Implied Malice:(1) serious risk of death or serious bodily harm(2) D aware of this risk(3) reckless and wanton disregard for human life(4) gross deviation from standard of care

CA v Watson (standard for implied malice in CA, question for the jury re extreme recklessness/indifference)STANDARD FOR IMPLIED MALICE IN CA

(1) natural consequences are dangerous to human life(2) the act was deliberately performed(3) by a person who knows that his conduct endangers the life of another(4) the person acts with conscious disregard for life

COURT: NATURAL CONSEQUENCES OF DRIVING TO A BAR AND DRINKING, KNOWING YOU WOULDNEED TO DRIVE HOME LATER, AND AT THE TIME OF DRIVING DRUNK D IS PRESUMEDTO KNOW THE HAZARDS OF DRUNK DRIVING (if not, standard is negligence, not recklessness)

FACTS-excessive drinking, drove to bar before beginning to drink-high speed reckless driving while drunk-300 ft of skidmarks to try to avoid accident—knew of danger-veered into oncoming traffic

QUESTION FOR JURY: WAS THRE AWARENESS OF RISK OF DEATH ON PART OF D? re element (3)if yes, then drunk and reckless driving death = murder NOT manslaughter

People v Knoller (failing to properly control dog with violent history = extreme recklessness = depraved heart)IMPLIED MALICE because Ds knew dog was dangerous and consciously disregarded the riskimplied malice test: if D is aware that his act is likely to cause death or serious injury to another and

commits act anyhow2nd Degree implied malice murderhigh probability of death in keeping dangerous dog

Taylor v Superior Court (PROVOCATIVE ACT DOCTRINE re 1st degree unintentional murder)FACTS

-D was getaway driver, not inside liquor store during armed robbery, victim killed co-felonNO FM BECAUSE CA HAS AGENCY LIMITATION—victim killed co-felon, not in furtherance of crimeCAN BE PROSECUTED UNDER 1ST DEGREE UNINTENTIONAL MURDER

PROVOCATIVE ACT DOCTRINEif you act in a way so as to make another need to use lethal force in self defense, you are

imputed with IMPLIED MALICED’s acts: execution threats, chattering insanely, coercive conductWOULD LEAD AN ORDINARY PERSON TO LETHALLY/JUSTIFIABLY RESIST

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INVOLUNTARY MANSLAUGHTER

unintentional killing where there is no implied malice

D KILLS IN A CRIMINALLY NEGLIGENT MANNER

Doctrinal Structure:actus reus: the killing of another human beingmens rea (depends on jurisdiction)

recklessness—subjective awareness required (NOT WITH NEGLIGENCE BELOW)gross negligence (criminal negligence)—risky conduct, notice of risk, less justificationordinary negligence (simple negligence)—like civil negligence

People v Hall (MPC definition of recklessness used, SKIING TOO FAST for conditions)COURT INFERRING D MUST HAVE KNOWN OF RISK BY SAYING THAT A REASONABLE PERSON IN

D’S SHOES WITH HIS EXPERTISE, ETC, WOULD HAVE KNOWNCourts can infer whether actor consciously disregarded such a risk from actor’s knowledge,

experience, and what a reasonable person would have understood the risk to beRISK OF DEATH DOES NOT HAVE TO BE “MORE LIKELY THAN NOT” IN COLORADO TO SEND

TO TRIAL FOR RECKLESS MANSLAUGHTER-assess likelihood that harm will occur AND magnitude of such harm if it occurs-assess the nature and purpose of D’s conduct RELATIVE to how substantial risk is-risk must be of such a nature that disregarding it constitutes a gross deviation from

standard of care a reasonable would exerciseELEMENTS of Reckless Manslaughter:Prosecution must prove D’s actions caused death, AND

(1) consciously disregarded(2) a substantial and(3) unjustifiable risk that he would(4) cause the death of another

HERE: excessive speed and lack of control = extreme deviation from standard of care

State v Williams (parents did not take child to doctor until too late to save—negligent—involuntarymanslaughter)UNEDUCATED, NOT AWARE OF SEVERITY OF ILLNESS AND RISK TO CHILDREASONABLE PERSON WOULD HAVE KNOWN CHILD WAS SERIOUSLY ILLordinary NEGLIGENCE, not extreme recklesness *if parents consciously disregarded a known risk, it would have been depraved heart murder)

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FELONY MURDER

guilty of murder when a killing is committed in perpetration, or attempt to perpetrate a felony (anchor,predicate, or underlying felony)—death can be accidental, still guilty of murder

DEFAULT 2nd degree if committed during any non-enumerated felonyBumped up to 1st degree if committed during enumerated felonies (arson, robbery, rape, burglary)

Strict liability re mens rea in the death, still need voluntary actus reus AND causation

Rationale: deterrence: creates an enhanced risk of felony commission re can be punished as a murderer—hope is that will cause felon to be more careful

also, felonies that result in murder should be punished more harshly than felonies that do not bcmore social harm

form of transferred intent: intent to commit felony is transferred to intent to commit homicide EASES PROSECUTOR’S BURDEN OF PROOF

counter: increase the punishment for the predicate felonies themselves if you want to deterfelonies, not indirectly with FM rule

MPC FELONY MURDERcriminal homicide constitutes murder when

-committed recklessly-under circumstances manifesting extreme indifference to the value of human life

such recklessness and indifference are presumed if-actor is engaged or is an accomplice in the commission of, or an attempt to commit:robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary,

kidnapping or felonious escape*presumption is rebuttable

LIMITATIONS ON COMMON LAW FM RULE(1) Enumeration

anchor felony MUST come from statutorily enumerated felonies, or DOES NOT qualify for 1st degree FM (CA enumerated in murder statute)

(2) Inherently Dangerous Felonies (People v Sanchez)

inherent danger = significant risk of serious bodily injury or death

2 Approaches (dep on jurisdiction)

(1) Inherently Dangerous in the abstract—CALIFORNIAsignificant risk of death in the abstract—ignore facts of case

test: can crime be committed without creating substantial risk/high probablility that death will result—if no, inherently dangerous

IE’s-discharging weapon into inhabited dwelling-manufacturing meth (bc of hazardous chemicals)-willful discharge of weapon in grossly negligent manner

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*more difficult to argue than as committed—keeps out many felonies

(2) Inherently Dangerous as committed significant risk of death in light of the specific facts of the casetest: was the manner and circumstances under which felony committed

inherently dangerous

*easier to argue than in the abstract—allows more FM charges

(3) Merger Doctrine

if anchor felony is an integral part of the homicide, it merges with it and FM NOT APPLIEDso must prosecute the felony AND another murder theory separately

test: does underlying felony have independent felonious purpose other than killing orinjuring victim? if yes, DOES NOT MERGE, can prosecute for FM (does not bar)

if no independent felonious purpose, MERGES, cannot prosecute FM, must chargeunderlying felony and another murder theory separately

Crimes that merge Crimes that do not mergeInvol/vol manslaughterFelony assaultFelony battery*violent crimes

no independent felonious purpose

RobberyRapeKidnappingBurglaryArson

yes independent felonious purpose

(4) Agency/In Furtherance Of (Weick v State, State v Oimen)

2 approaches(a) the Agency Approach—MAJORITY—CALIFORNIA

killing must be done by felon or co-felon to qualify for FMTEST: was killing done by felon or co-felon? if felon, CAN PROSECUTE FM

if done by intended victim, CANNOT prosecute felons for it

(b) the Proximate Cause Approach—MINORITY felon liable for any death that is a proximate result of the felony, whether

done by co-felon or 3rd partyTEST: was the death a reasonably foreseeable consequence of the felony?

if yes, CAN PROSECUTE FOR FM*even if killing done by police officer, can prosecute felons

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(5) Res Gestae (State v Adams)death must occur because of and during perpetration or attempted perpetration of the

felony and within the duration of the felony

*when anchor seen as too far in time, distance, or duration to killing, NO FM

question: was anchor felony and homicide part of one continuous transaction that wasclosely connected in time, place, and causal relation? if yes, CAN PROSECUTE FM

TEST: was there a break in the chain of events?LOOK AT:

-point of time-place-causal relation bt death and predicate felony

TEST: place of temporary safety: has the felon gained a place of temporary safety after commission of felony and before death of victim? if yes, NO FM PROSECUTION

(not always dispositive, re arson)

(prosecute under another murder theory separately)

*death must occur before felony completed, even if D reaches place of temp safetyie ARSONIST reaches safety, but fire blazes on and then kills someone, it is within

the res gestae of the crime

STEPS OF ANALYSIS(1) prove all elements of underlying felony(2) decide degree of felony murder (if enumerated, 1st degree, otherwise 2nd)(3) if 2nd degree, is underlying felony inherently dangerous? (2 approaches, dep on jurisdiction)(4) is death a direct causal result of the felony?(5) rule out bars and restrictions to felony murder—FROM CHART

State v Sims (D shot victim in the course of an attempted burglary, defense was muscle spasm, but FM is SL Crime)VA Felony Murder Statute:

NO INVOLUNTARY ACT DEFENSE RE FELONY MURDERMALICE IS ASSUMED EVEN THOUGH STATUTE DOES NOT MENTION IT

DEATH WAS DIRECT CAUSAL RESULT OF ATTEMPTED BURGLARYvoluntary act = breaking into house with intent to commit burglarymens rea: strict liabilityeven it accidental (ie muscle spasm that pulled trigger) does not matter because strict liability1st DEGREE FELONY MURDER—enumerated and accident is not a defense to VA FM Statute

People v Stamp (death from a robbery, enumerated in CA, 1st degree FM, forseeability not a requirement)D DID NOT KNOW VICTIM HAD A HEART CONDITION, BUT FORESEEABILITY NOT AN ELEMENT OF FMas long as death is a direct causal result of the voluntary act of a felony, liable for FMvoluntary act = robbery (prove all elements)ARMED ROBBERY ENUMERATED IN CATHEREFORE 1ST DEGREE FELONY MURDER

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People v Sanchez (police evasion is NOT INHERENTLY DANGEROUS in the abstract—CA case)EVASION IS NOT INHERENTLY DANGEROUS IN THE ABSTRACTnot enumerated in CACANNOT CHARGE FELONY MURDER BC EVASION NOT INHERENTLY DANGEROUS

court used OJ Simpson chase as example of a way to evade police without being dangerousstandard of inherently dangerous = SIGNIFICANT RISK OF DEATH

Barnett v State (MERGER DOCTRINE BARS prosecution for FM when underlying felony is assault in 1st degree)ASSAULT IN 1ST DEGREE MERGES WITH FM—CANNOT PROSECUTE FOR FM

must prosecute 1st degree assault separately, and another murder theory NOT FMAssault DOES NOT have an independent felonious purpose other than to kill or inflict great bodily harm

Weick v State (AGENCY LIMITATION BARS prosecution of felon for FM when victim kills co-felon)AGENCY LIMITATION BARS FELON PROSECUTION FOR FM WHEN VICTIM KILLS A CO-FELONCONDUCT WAS NOT IN FURTHERANCE OF THE CRIME, IT WAS IN OPPOSITION TO IT

predicate felony was robberybut VICTIM, not a co-felon, killed the other co-felon

THIS JURISDICTION HAS AGENCY LIMITATION MAJORITY IN FURTHERANCE OF

takeaway: if conduct causing the death is not in furtherance of the crime, cannot prosecute for FMin this jurisdiction

State v Oimen (AGENCY LIMITATION DOES NOT BAR prosecution for FM bc MINORITY proximate cause juris)Wisconsin FM Statute:

“Whoever causes the death of another human being while committing or attempting to commit [first or second degree sexual assault with use or threat of force or violence, arson, armed burglary, armed robbery]…

JURISDICTION REJECTS MAJORITY AGENCY LIMITATION—plain meaning of statuteHAS PROXIMATE CAUSE APPROACH INSTEADdoes not need to be in furtherance of predicate felony, only proximate result of felonyCourt rejects agency approach, that a felon can only be liable for death when the killing is

committed by an individual acting in concert with him (an agent of the crime)-legislature did not intend liability only when there is an agency relationship-court takes plain meaning of statute, places no limits on whose death it is

that results-only 1 limitation: 5 enumerated felonies for 1st degree

State v Adams (RES GESTAE DOES NOT BAR 1st degree FM—armed burglary, while fleeing, killed night marshal)WAS IN ONE CONTINUOUS TRANSACTIONFLEEING BC INTERRUPTED DURING ARMED BURGLARY

fleeing is within res gestae of armed burglaryclosely connected in point of time, place, causal relation

-no break in causal chain—no place of temporary safety, no break in chain of eventsHOMICIDE WITHIN RES GESTAE OF BURGLARY—one continuous transactionENUMERATED IN MISSOURI1ST DEGREE FMTAKEAWAY: renunciation valid only if voluntary and complete

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MISDEMEANOR MANSLAUGHTER

a person who commits a killing in the perpetration of a misdemeanor can be convicted IF ANCHOR MISDEMEANOR IS INHERENTLY DANGEROUS

*can be subject to FM Limitations, depending upon jurisdiction

STEPS IN ANALYSIS(1) prove all elements of underlying misdemeanor(2) is death a direct causal result of the misdemeanor?(3) is underlying misdemeanor inherently dangerous? (2 approaches, dep on jurisdiction)(4) rule out bars and restrictions to felony murder—depends on jurisdiction

U.S. v Walker (misdemeanor must be INHERENTLY DANGEROUS—carrying a gun w/o license IS inher. danger)D dropped gun, it discharged and killed bystanderINHERENT DANGER = HIGH RISK OF SERIOUS BODILY INJURY OR DEATHCarrying a gun without a license is inherently dangerous to the community

licensure assures community the possessor is of sound mind, no criminal record, not user ofdrugs, free of defects that would impair safe use of weapon, trained in safety of firearms

CARRYING UNLICENSED PISTOL DANGEROUS IN AND OF ITSELF

Misdemeanor Manslaughter from COMMON LAW (jurisdiction does not have a statute on it)(1) unlawful killing of a human being WITH either

a. the intent to commit a misdemeanor that is inherently dangerous, ORb. gross or criminal negligence

Taylor v Superior Court (provocative act doctrine re unintentional 1st degree unintentional murder)FACTS

-D was getaway driver, not inside liquor store during armed robbery, victim killed co-felonNO FM BECAUSE CA HAS AGENCY LIMITATION—victim killed co-felon, not in furtherance of crimeCAN BE PROSECUTED UNDER 1ST DEGREE UNINTENTIONAL MURDER

PROVOCATIVE ACT DOCTRINEif you act in a way so as to make another need to use lethal force in self defense, you are

imputed with IMPLIED MALICED’s acts: execution threats, chattering insanely, coercive conductWOULD LEAD AN ORDINARY PERSON TO LETHALLY/JUSTIFIABLY RESIST

D WAS AWARE HIS ACTS WOULD LEAD A PERSON TO NEED TO DEFEND THEMSELF

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INCHOATE OFFENSES—ATTEMPT, CONSPIRACY, SOLICITATION (incomplete/unsuccessful)because we do not punish for thoughts alone, at what point does an incomplete/unsuccessful effort to commit a

crime become a crime itself?*ALL DEFENSES APPLY, INCLUDING THOSE BELOW THAT ARE SPECIFIC TO INCHOATE CRIMES

ATTEMPT (specific intent crime, even if the target crime is general ie rape)*when a person, with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of

perpetration of the target offense*usually punished ½ as harshly as completed offense (ie rape 20 yrs, attempted rape 10 yrs)

rationale: attempt causes less social harm than completed offense = lesser debt to pay to society = punishless

*YOU CAN ATTEMPT TO CONSPIRE

comes closest to completion of all inchoate crimes

MUST BALANCE COMPETING CONCERNS re actus reus that is culpable (1) danger of arresting and convicting innocent persons whose behavior is merely suspicious(2) need for law enforcement to prevent real criminal conduct from coming too close to fruition

Doctrinal Structure:ACTUS REUS: how far did the conduct go in completing the target crime?

*think about all steps necessary to fulfill actus reus of target crime—did D get close enoughto meet the elements of the actus reus of the target crime?

*were acts closer to planning activity or closer to perpetration of the crime?2 tests

(1) Dangerous Proximity Test (Common Law, People v Rizzo)—Oliver Wendell Holmes (a) was D’s conduct dangerously close to success?(b) was there reasonable likelihood of success but for intervention?

*this test is closer to perpetration than planning* the more serious the offense, the less close D must come to completion

(2) Substantial Step Test (MPC)(a) did D’s act constitute a substantial step in the course of conduct planned to

culminate in the commission of the target crime?(b) was D’s act strongly corroborative of D’s criminal purpose?

*this test is closer to planning activity than perpetration

MENS REA: dual mens rea (1) for target crime (intent to commit acts which constitute actus reus of targetoffense) and (2) for attempted crime (specific intent to commit target offense—engage in conduct or achive result required for target offense)2 tests

(1) Common Law Test(a) was there general intent to commit the acts which constitute the actus reus of the

target crime?(b) was there specific intent to commit the target crime? ie engage in conduct or

achieve result required by target crime?*go through steps of analysis of the target crime (if murder, must determine degree)

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(IE if pulling gun was meant to scare rather than kill, lacked specific intent of murder, CANNOT be convicted of attempted murder)

(2) MPC Test (a) did D purposely engage in conduct that would constitute the actus reus of the

target crime? (b) when the target crime is a result crime, did D do or omit anything with the purpose

of causing or with belief that it will cause the result without further conduct on his part?*result crimes (ie murder) as opposed to conduct crimes (ie driving drunk)

ATTENDANT CIRCUMSTANCES: (IF PRESENT)—mens rea element must be met

majority approach: the mens rea IS THE SAME for attendant circ as it is for the completed crimeie if mens rea is negligence, then negligence for attendant circumstance too

minority approach: mens rea for attendant circumstances is purpose (must intend and know) regardless of what mens rea is for completed crimeSTRICTER than majority approach

**if attendant circumstances are what D believes them to be, can prosecute for attempt(it is not about objective, extrinsic circumstances, but what is in D’s mind)

DEFENSES: Abandonment (MPC only—typically no exculpatory abandonment in common law, although trend is to allow so long as it is complete and voluntary)

Must be voluntary AND complete (not based on increased risk of detection or motivatedby postponement or transfer to another objective or victim)

*voluntary: must originate with D, not as a result of extrinsic factors that increaseprobability of detection or difficulty of committing the target crime

*complete: the D must have not only abandoned this particular episode but also abandonedthe idea of committing the crime—renunciation

BAR IS VERY HIGH

Impossibility (MUST DISTINGUISH between legal imposs (valid) and factual imposs (not valid)

Common Law ONLY, although most jurisdictions no longer allow it as defenseMPC has eliminated defense of impossibility: looks to what is in D’s mind, NOT to

extrinsic, objective circumstances

*inherent prob with distinction: any case of hybrid legal impossibility can becharacterized as a factual imposs—SEE People v Dlugash

LEGAL impossibility:

parallels mistake of law (negates mens rea)VALID DEFENSE

hybrid legal impossibility: actor’s goal is illegal, but commission is impossible

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because of a mistake by actor regarding the legal status of a factualcircumstance related to D’s conduct (about actor, victim, method ofcommission)—most common

IE: attempted receipt of stolen property: if actor believes it was notstolen, mistake of attendant circ required to convict (thatproperty was stolen)

D offers bribe to person he thinks is a juror, person is not juror D shoots at stuffed deer out of hunting season thinking it alive

pure legal impossibility: attempt to commit a non existent crime—rare(D’s conduct not illegal but he thinks it is illegal)*really a non-issue bc cannot be prosecuted for non-crime

IE: attempted rape: if actor believes putting his hand on V’s knee isrape, mistake as to what rape is

FACTUAL impossibility: when D’s intended end is a crime but he fails to complete bc of a factual circumstance unknown to him or beyond his control

USUALLY NOT A DEFENSE, unless inherent impossibility

inherent factual impossibility: D chooses a means of accomplishing the crimethat is unlikely to succeedCAN BE A VALID DEFENSE

IE: D tries to shoot down airplane with rubber bands D tries to kill V by using a voodoo doll

factual impossibility: D is mistaken about a fact that makes it impossible tocomplete the offenseNOT A VALID DEFENSE

IE: pickpocket reaches into empty pocket—still attempted larceny D sexually assaults V, cannot have sex bc impotent—still attempted rape

D shoots into V’s bed thinks she is there, she was not there—still att murder D pulls trigger of gun aimed at V, gun not loaded—still attempted murder

*MPC grades solicitation at the same level as the target offense

Merger Doctrine Appliesif prosecution proves the completed offense, attempt MERGES and you are prosecuted ONLY for completed offense

Kansas v GobinKansas Attempt Statute

any overt act toward the perpetration of a crime done by a person who intends to commitsuch crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime

3 elements(1) intent to commit the crime

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(2) an overt act toward the perpetration of the crime(3) a failure to consummate the crime

People v Rizzo (Victim never showed up, common law ACTUS REUS test, not dangerously close to success)D and 3 others drove around looking for intended victim, victim did not show upLACKED ABILITY TO COMMIT CRIME BC VICTIM DID NOT SHOW UP—THEREFORE NOT DANGEROUSLY

CLOSE TO SUCCESS—CANNOT BE LIABLE FOR ATTEMPTActus Reus TEST: Dangerous Proximity TestTAKEAWAY: conduct must come dangerously close to success to satisfy actus reus element of attempt

South Dakota v Lyerla (cannot attempt to commit an unintentional crime, MENS REA 2 of attempt not satisfied)CANNOT HAVE SPECIFIC INTENT TO KILL BC HE DID NOT INTEND TO KILL

DID NOT MEET MENS REA ELEMENT (2)Dissent represents the minority view:

-you can still be prosecuted for unintentional crimes of recklessness (extreme or ordinary)

People v Staples (NO defense of ABANDONMENT once acts sufficient to be considered attempt at common law)D’S ACTS WENT BEYOND PLANNING AND PREPARATION

HE BEGAN TO DRILL THRU THE FLOORCOMMON LAW RULE: NO EXCULPATORY ABANDONMENT ONCE ACTS CONSIDERED ATTEMPT

People v Dlugash (D shot V AFTER another had already shot V—legal impossibility to kill V if V already dead)LEGAL IMPOSSIBILITY TO KILL A DEAD PERSON BC LAW OF HOMICIDE PREVENTS KILLING OF A HUMAN

BEING, AND V WAS NO LONGER A HUMAN BEING BC X HAD ALREADY KILLED V(coroner said V could have already been dead before D shot him—NO PROOF BEYOND

REASONABLE DOUBT RE V WAS DEAD/ALIVE WHEN D SHOT HIM)NO CAUSATION so cannot prosecute for murder

*CAN PROSECUTE FOR ATTEMPTED MURDER, EVEN THOUGH VICTIM ALREADY DEADif attendant circumstances are as D believed them to be, can prosecute for attemptAC = D thought V was dead?

*can also be characterized as factual impossibility: did not know V already dead, so failed to completeoffense even though he intended to kill V—BUT FACTUAL IMPOSS IS NOT A DEFENSE

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COMPLICITY/ACCOMPLICE LIABILITY/AIDING AND ABETTING(NOT a crime in and of itself—a way of sharing the liability with the principal—vicarious liability)

aider and abettor is prosecuted on the offense committed by principal—conspiracy, attempt, solicit., target

rationale: you are using principal as your agent, effectively saying “your acts are my acts” -- thus punished ALSO, group criminality poses special added dangers to society, so those who promote or

encourage crime are liable for the crimes themselves

*mere presence is not enough (State v VT)-accomplice must know he is assisting the principal, and have some conduct that assists, however minimal-presence + prior agreement IS ENOUGH -presence + omission of affirmative duty IS ENOUGH (State v Walden, People v Flayhart)

*there must be an attempt or completed offense by principal to hold accomplice liable (as opposed tosolicitation)

*the accomplice’s conduct MUST ACTUALLY ASSIST the principal—even if it just made it easier—can betrivial(psychological encouragement, opening a window so perp can enter, etc)

YOU CAN BE AN ACCOMPLICE TO AN UNINTENTIONAL CRIME

COMMON LAW

ACTUS REUS: voluntary act to promote/encourage commission of the target offence by principal (mustknow you are assisting—presence not enough but if with duty or prior agreement can be enough)

= intentionally assists principal to engage in conduct that constitutes the offense

*ACT CAN BE SUFFICIENT IF IT MIGHT HAVE PROMOTED/ENCOURAGES PRINCIPAL’S ACT-speech sufficient if intended to encourage/help principal commit crime-mere presence insufficient unless it is offered as a form of encouragement-accomplice’s help need not contribute to the criminal result-principal need not be aware of accomplice’s acts-accomplice’s acts must be capable of assisting the principal

(if you omit duty to act, ie police officer stands by and does nothing, sufficient actus reus)

MENS REA (dual, must prove both)

` (1) accomplice must intend to assist principal in commission of the target crime—purposelypromote

majority rule: accomplice must have the mens rea of purpose regarding the principal’scrime

minority rule: accomplice must know principal will commit the target offense

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(2) purpose is to assist principal in completing crime: sharing in the mens rea for target crime

(if police officer fails to prevent, and wants crime to occur, liable as accomplice)(principal need not be aware of accomplice’s assistance)

For Crimes whose Mens Rea is RECKLESS/NEGLIGENT (Washington v Hopkins)-accomplice’s mens rea re assisting the principal: (1) MUST BE PURPOSEFUL

re the target crime: (2) share in reckless/negligent mens rea for target offense

For Crimes whose Mens Rea is STRICT LIABILITY-requires purpose to promote principal’s act-REQUIRES AWARENESS OF FACTS THAT MAKES CONDUCT CRIMINAL*ACCOMPLICE LIABILITY REQUIRES HIGHER MENS REA FOR ACCOMPLICE THAN PRINCIPAL

IE: statutory rape requires accomplice to know the person is underage (not principal)

CAUSATION: only required for the principal, not for the accomplice bc not an independent crime, onlyderivative liability for accomplice*BUT MUST ESTABLISH THAT THE PRINCIPAL COMMITTED THE CRIME

DEFENSES: Abandonment/Withdrawal

majority: requires complete and voluntary abandonmentminority: requires complete and voluntary abandonment AND that D communicate the

withdrawal to perpetrators AND law enforcement BAR VERY HIGH

Innocent Instrumentality: a person is not an accomplice is he does not know the conduct heengages in amounts to a crime—no derivative liability(acts of innocent person attributed to person who instigated crime,principal prosecuted directly for the offense)

Exempt Participants: a person is not an accomplice if he is a member of the class of individualsprotected by the statutory prohibition

IE statutory rape: underage victim cannot be an accomplice even if willingparticipant

Natural and Probable Consequences Doctrine (People v Medina, State v Hoselton, State v Linscott)accomplice can be held liable not only for crime he is complicit in, but also for any other offense by the principal that was a natural and probable consequence of the crime the accomplice aided and abetted (OBJECTIVE STANDARD)

STEPS OF ANALYSIS (DRESSLER)(1) did the principal commit the target crime? (*even if P acquitted/not charged, must show P met all

elements of the target crime)(2) if yes, did accomplice intentionally assist the principal in the commission of the target crime?(3) if yes, did the principal commit any other crimes in the course of committing the target crime?(4) if yes, were these crimes reasonably foreseeable consequences? (*even though not

desired/contemplated by the accomplice or principal)(5) if yes, accomplice is liable under the doctrine

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MPC(3) a person is an accomplice of another person in the commission of an offense if

(a) with the purpose of promoting or facilitating the commission of the offense he(i) solicits the other person to commit it(ii) aids or agrees or attempts to aid such other person in planning or committing itOR(iii) having a legal duty to prevent commission and fails to make proper effort

ACTUS REUS: aids or agrees to aid or attempts to aid principal in planning or commission *omission satisfies IF D has legal duty to prevent

MENS REA: purpose of promoting or facilitation commission of the offense when causing a particular result, D acts with the kind of culpability that is sufficient

for the commission of the offense

DEFENSES (per Dressler)Abandonment: terminates participation before the crime is committed, and if D neutralizes

his assistance, warns the police, or in some other way prevents commission

Exempt Participants (see above)

Inevitable Incidence: if conduct is an inevitable incident to commission of the crimeIE: customer of prostitute not an accomplice in commission of pros.

State v VT (MERE PRESENCE NOT ENOUGH to meet actus reus of complicity in Utah)Not enough evidence to show D encouraged theft—no slight conduct or verbage, was merely presentwas not a lookout, did not encourage the crimePASSIVE BEHAVIOR/PRESENCE NOT ENOUGH FOR ACCOMPLICE LIABILITYDOES NOT MEET ACTUS REUS

State v Walden (OMISSION OF AFFIRMATIVE DUTY + PRESENCE IS ENOUGH to meet actus reus of complicity)MOTHER D WAS PRESENT WHILE BOYFRIEND BEAT HER 1 YEAR OLD FOR 1 ½ HRS, DID NOTHINGaffirmative duty to protect your child—cannot stand by when reasonably within power to protect childwhile mere presence does not establish complicity, combined with affirmative duty imposed, an act

of omission can establish criminal conductD WAS AIDER AND ABETTOR, THUS GUILTY AS A PRINCIPALOMISSION CONSTITUTED ENCOURAGEMENT OF THE COMMISSION OF THE ASSAULT

People v Beeman (aided and abetted, liability extends to NATURAL AND REASONABLE CONSEQUENCES)D INTENDED TO AID AND ABET PERPETRATORS IN ROBBERYTEST:

(1) D acted with knowledge of principal’s criminal purpose(2) with intent of encouraging commission of the crime

LIABILITY extends to natural and reasonable consequences of acts that D knowingly and intentionally aids

PROOF OF INTENT TO ASSIST IN THE CRIME REQUIRED FOR AIDING AND ABETTINGD LIABLE FOR ROBBERY, BURGLARY, DESTRUCTION OF PHONE EQUIPMENT even though he

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wasn’t there for the robbery (sketched layout of home, told principals where jewelry was)

State v Hoselton (MERE PRESENCE NOT ENOUGH for accomplice liability, no MENS REA bc did not know of plan)NO PRIOR AGREEMENT, NOT FORESEEABLE TO D THAT FRIENDS WOULD STEALWHEN D FOUND OUT ACTS OF FRIENDS, HE REMOVED HIMSELF FROM THE SITUTATIONthe only evidence was a confession, when asked if he was a lookout, he replied “you could say that”

*does not establish he was an aider and abettorDID NOT INTEND HIS FRIENDS TO COMMIT LARCENY—lacked mens rea to help commit crime

*also cannot get him on natural and probable consequences doctrine, because (4) NOT FORESEEABLE

State v Linscott (NATURAL/PROBABLE CONSEQ—murder via armed robbery of drug dealer—had MENS REA)CO-FELON KILLED DRUG DEALER, D DID NOT INTENT TO KILL HIM, ONLY TO ROB HIMMURDER IS A NATURAL AND FORESEEABLE CONSEQUENCE OF ARMED ROBBERY, ESPECIALLY WHEN

ROBBING A KNOWN ARMED DRUG DEALERNatural and Probable Consequences (Dressler analysis)

(1) did the principal commit the target crime? (*even if P acquitted/not charged, must show P met all elements of the target crime)

(2) if yes, did accomplice intentionally assist the principal in the commission of the target crime?(3) if yes, did the principal commit any other crimes in the course of committing the target crime?(4) if yes, were these crimes reasonably foreseeable consequences? (*even though not

desired/contemplated(5) if yes, accomplice is liable under the doctrine

*no FM prosecution bc armed robbery not enumerated in Maine, AND bc D asserted mens rea defenseand FM is an SL crime

*no need for intent to kill if killing was result of natural and probable consequences

State v Medina (NATURAL AND PROBABLE CONSEQ of gang fight is death, STANDARD NEGLIGENCE in jurisdic)D AIDED AND ABETTED ASSAULTCOURT EMPLOYS NEGLIGENCE STANDARD—seems to go against name of doctrine

*does not need to be PROBABLE that someone would die in gang fight, only that it is POSSIBLEOBJECTIVE STANDARD: would a reasonable person know/should have known someone might

be killed in a gang fight?

Washington v Hopkins (you CAN BE AN ACCOMPLICE TO AN UNITENTIONAL CRIME—invol. manslaugher)INVOLUNTARY MANSLAUGHTER RE ENTRUSTING CAR TO PERSON YOU KNOW IS DRUNKactus reus: assisted intentionally by giving keys to a drunkmens rea (1) intended to give keys to drunk, thereby assisting him in driving drunkmens rea (2) not clear if standard is reckless or negligent, but court felt D was reckless/negligentPRINCIPAL’S ACT OF DRIVING DRUNK LED TO INVOLUNTARY MANSLAUGHER

*could also get him on NATURAL AND PROBABLE CONSEQUENCES DOCTRINE

People v Flayhart (INTENTIONAL OMISSION OF DUTY to provide care satisfies ACTUS REUS of complicity—NY)Husband and Wife had affirmative duties to care for husband’s brothermens rea: negligenceCAN BE AN ACCOMPLICE TO NEGLIGENCE CRIMESCAN INTENTIONALLY AID ANOTHER IN FAILING TO PERCEIVE A SUBSTANTIAL AND UNJUSTIFIABLE

RISK—negligent unintentional homicide

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each intentionally aided the other in conduct AND each also acted with negligence becausethey each failed to perceive risk of death, and intentionally aided each other in failing to provide food and medical care, which caused brother’s death

CONSPIRACY (specific intent crime AND theory of complicity)an agreement between two or more persons to commit an unlawful act or series of acts

rationale: group criminality is more dangerous than individual wrongdoing bc of combined resources,combined strength, and combined expertise—also less likely to abandon if others involved

*police can intervene BEFORE attempt stage

YOU CAN SOLICIT A CONSPIRACY

*if police unable to intervene, prosecution can convict on BOTH conspiracy AND the target offense—DOES NOT MERGE (unlike attempt and solicitation)

rationale: conspiracy presents extra dangers, and the extra danger justifies double punishment

*co-conspirators can also be held vicariously liable for acts of other co-conspirators (like complicity)—holdspeople responsible for the acts of othersCOMMON LAW ONLYMPC: must get them on complicity, automatic co-conspirator liability rejected

Common Law Doctrinal Structure

ACTUS REUS:

(1) agreement to commit unlawful act, DIRECT OR INDIRECT AGREEMENT (meeting of the minds)AND, USUALLY(2) majority : overt act (majority of jurisdictions. can be same act as in #3 of Pinkerton analysis)

minority: some jurisdictions DO NOT require an overt act

over act = any form of observable conduct undertaken as part of the conspiracy (any act OK)

*most jurisdictions: conspiracy COMPLETE once agreement + overt act in furtherance of consp.(can be planning activity)

MENS REA: dual

(1) intent to enter into agreement/conspireAND(2) intent/purpose to commit or aid in commission of the act or acts constituting target crime

(must intend that the target offense be achieved)—2 ppl minimum must truly agree,insane/police do not countBILATERAL JURISDICTION

minority: knowledge that you are aiding in commission of acts constitutingthe target crime is sufficient, do not need to intend that the crime be committed (People v Lauria)

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Bilateral Conspiracy=Traditional Common Law Approach=requires an actual agreement (meeting of the minds) between 2+ people

Unilateral Conspiracy=actual agreement not necessary so long as D believes the other is agreeing

problem with unilateral approach: fails to carry out purpose of conspiracy statute-when police officer is the co-conspirator, no increased danger, no increased chance

of success, no existence of continuing criminal enterprise, no greaterdifficulty of detection

BUT CAN INFER INTENT FROM KNOWLEDGE Pinkerton v US

ATTENDANT CIRCUMSTANCES: same as underlying target crime

DEFENSES: Corrupt Motive Doctrine—APPLIES ONLY TO MALUM PROHIBITUM CRIMESif conspirators lack a corrupt or wrongful rationale, not guilty

Wharton’s Ruleyou CANNOT prosecute a 2-person conspiracy if the crime by definition requires 2 people to

commitstatute MUST provide that both participants are culpable for the conduct—if the two

conspirators are not the parties necessary to commit the offense, can charge consp.

IF THERE ARE MORE PARTICIPANTS IN THE CONSPIRACY THAN THE MINIMUM NUMBERREQUIRED FOR THE CRIME, THEN CONSPIRACY CHARGE CAN BE BROUGHT AGAINST ALL PARTICIPANTS

IE: bigamy, incest, adultery, dueling, [gambling, extortion, bribery, sale of stolen property,simple drug sales (but can charge conspiracy to possess)]

rationale: the added danger of group criminality is absent with only 2 people

Withdrawal and Abandonment

majority: NOT a defenseminority: VALID DEFENSE

conspirator must manifest a complete withdrawal that is not caused by eitherfear of discovery or inability to complete the criminal object of theconspiracy

can require communicating withdrawal to co-conspirators, and if close tofruition, an effort to defeat the object offense

some courts require getting all co-conspirators to cease conspiracy ornotifying authorities to prevent the crime

Exempt Participants (Per Dressler): a person is not an accomplice if he is a member of the class ofindividuals protected by the statutory prohibition

IE statutory rape: underage victim cannot be an accomplice even if willing

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participant

Impossibility NOT A DEFENSE TO CONSPIRACY

PINKERTON LIABILITY—like the natural and probable consequences doctrine of complicity (common law only)

a party to a conspiracy is liable for any criminal act committed by a co-conspirator if it is within the scopeof the conspiracy OR it is a foreseeable consequence of the unlawful agreement

Co-Conspirators vicariously liable for crimes of other co-conspirators if:(1) the co-conspirator is a party to the conspiracy(2) the conspiracy is ongoing (not terminated)(3) the crime is in furtherance of the conspiracy, AND(4) the crime is reasonably foreseeable (negligence language)

*do not need to intend the consequence of the crime like in nat and prob consequences doctrine

problem with doctrine: VERY BROAD LIABILITY—bc conspiracies are usually open ended, they can last a long time and involve many parties and many crimes—this doctrine holds every member of the conspiracy liable for every crime committed by every other member to the conspiracy as long asthe crime is among the objects of the conspiracy or is a reasonably foreseeable outgrowth of theconspiracy

Merger Doctrine DOES NOT apply: if attempted or completed, prosecuted for conspiracy AND attempt or target

rationale: conspiracy presents extra dangers, and the extra danger justifies double punishment

MPCACTUS REUS:

(1) agreeing to engage in conduct that constitutes a crime or attempted crimeOR(2) agreeing to aid in planning or commission of crime or attempted crimeAND(3) overt act in pursuance of conspiracy, EXCEPT in 1st and 2nd degree felonies, no overt act

needed

MENS REA(1) must act with purpose of promoting or facilitating the commission of the conduct that

constitutes the offense

*no 2-person minimum re mens rea like in common law: onlu 1 person must truly agree-so undercover cops, insane, incapable count--UNILATERAL JURISDICTION

DEFENSE: requires:(1) COMPLETE renunciation(2) VOLUNTARY renunciation AND(3) THWARTING the success of the conspiracy

*NO Wharton’s Rule or Impossibility defenses

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*NO vicarious liability under MPC—must prove complicity for co-conspirators


Martinez v Wyoming (actus reus for conspiracy—SUFFICIENT AGREEMENT ESTABLISHED)Unilateral jurisdiction—one person with requisite mens rea is sufficient, even if the other person is

a police officer who lacks mens reaMERE TACIT UNDERSTANDING BETWEEN PARTIES IS SUFFICIENT

taped calls re price and quantity of morphineNO VOLUNTARY ABANDONMENT—changed his mind when he found out he was being followed evidence beyond a reasonable doubt D planned to purchase morphine and deliver to informant, had an

agreement with another to violate the controlled substances actGUILTY OF CONSPIRACY AND ATTEMPT TO VIOLATE CONTROLLED SUBSTANCES ACT

*no overt act requirement at the time, but Wyoming NOW requires it

Washington v Pacheco (CANNOT AGREE WITH FEIGNING PARTY, does not meet ACTUS REUS for conspiracy)Bilateral jurisdiction—need 2 people minimum to have mens rea, cannot include police officersYOU CANNOT AGREE WITH A FEIGNING PARTY—police officer was predending to agree

D DID NOT CONSPIRE WITH ANYONEalthough D had requisite criminal intent, he lacked the criminal act of agreement—no genuine

agreementLAW in WA: requires D to reach a genuine agreement with at least one other genuine co-conspirator

State v Dent (actus reus for conspiracy)

People v Swain (mens rea for conspiracy—INTENT TO KILL REQUIRED)D’s friend killed a boy in a drive-by shooting, D found guilty of conspiracy to commit murderINTENT TO KILL REQUIRED FOR CONSPIRACY TO COMMIT MURDERCANNOT BE BASED ON THEORY OF IMPLIED MALICE

People v Lauria (mens rea for conspiracy, INFERRING INTENT FROM KNOWLEDGE)for FELONIES, intent to commit the conspiracy can be inferred from knowledge that the buyer will use the

goods or services for criminal purposes IF(1) there is direct evidence that he intends to participate OR(2) through an inference that he intends to participate based on

(a) a special interest in the activity(b) the aggravated nature of the crime itself

special interest in the activity can be inferred(1) when purveyor of legal goods for illegal purposes has acquired a stake in the venture, OR(2) when no legitimate (lawful) use for the goods or services exist, OR(3) when the volume of business with the buyer is grossly disproportionate to any legitimate

demand, OR when sales for illegal use amount to a high proportion of seller’s total business

for MISDEMEANORS, intent CANNOT be inferred from mere knowledge that buyer is using products for criminal purposesHOWEVER, intent CAN still be inferred from knowledge IF supplier has special interest inoperation of the criminal enterprisespecial interest can be inferred(1) when purveyor of legal goods for illegal purposes has acquired a stake in the venture, OR

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(2) when no legitimate (lawful) use for the goods or services exist, OR(3) when the volume of business with the buyer is grossly disproportionate to any legitimate

demand, OR when sales for illegal use amount to a high proportion of seller’s total business

US. v Feola (ATTENDANT CIRCUMST. for conspiracy—same as mens rea for target crime—ASSAULT ON COP)conspiracy to assault a police officerD’s defense: lacked mens rea because didn’t know he was a copCourt: it is an SL crime, no requirement that actor must know he is assaulting a police officerTAKEAWAY: YOU CAN BE PROSECUTED UNDER A CONSPIRACY THEORY FOR SL TARGET CRIME

EVEN THOUGH CONSPIRACY IS A SPECIFIC INTENT CRIME—NO SCIENTER REQUIRED FORACTOR, ONLY ACTUS REUS

IF YOU HAVE AN ATTENDANT CIRCUMSTANCE FOR A CRIME, IT IS THE SAME AS THE MENS REA FORTHE UNDERLYING CRIME

Pinkerton v US (conspiracy as vicarious liability—PINKERTON LIABILITY—D in jail while bro acted)D agreed to conspiracy and did not withdraw, even though he didn’t know his brother was carrying out

the conspiracy, liable for his brother’s acts bc did not withdrawRULE: AGREEMENT IS THE FORMATION OF CRIMINAL INTENT

+ OVERT ACT OF ANY CO-CONSPIRATOR IN FURTHERANCE OF THE CONSPIRACY THAT IS A

FORESEEABLE CONSEQUENCE OF THE UNLAWFUL AGREEMENT, CONSPIRATORS LIABLE

a party to a conspiracy is liable for any criminal act committed by a co-conspirator if it is within the scopeof the conspiracy OR it is a foreseeable consequence of the unlawful agreement(vicarious liability if in furtherance of conspiracy)

CO-CONSPIRATORS VICARIOUSLY LIABLE FOR CRIMES OF OTHER CONSPIRATORS IF(1) the co-conspirator is a party to the conspiracy(2) the conspiracy is ongoing (not terminated)(3) the crime is in furtherance of the conspiracy, AND(4) the crime is reasonably foreseeable as a result of the conspiracy

US v Jiminez Recio (duration of conspiracy—DOES NOT TERMINATE when police defeat object of conspiracy)D claims not guilty because he joined the conspiracy AFTER POLICE seized the drugsCourt: CONSPIRACY DOES NOT TERMINATE WHEN POLICE DEFEAT THE OBJECT OF THE

CONSPIRACY—YOU ARE STILL DANGEROUS BECAUSE YOU AGREED TO COMMIT UNLAWFULACTS

conspiracy does not end when object of conspiracy becomes impossible to completethe agreement is still a threat to the public due to the likelihood that other crimes will be

committedMUST WITHDRAW/ABANDON (or Wharton’s Rule if applicable)

conspiracy ends when:-agreed upon acts are completed-when agreement is abandonment[disavowal, depending on jurisdiction]

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SOLICITATION (specific intent crime AND theory of vicarious liability)—a crime in every state

*no soliciation occurs if solicitor intends to commit substantive offense himself but requests assistance of another

*CRIME OF SOLICITATION COMPLETE THE INSTANT THE ACTOR SOLICITS ANOTHER—NO NEED FOR FURTHERACT BY SOLICITEE

*VICARIOUS LIABILITY makes solicitor liable for ANY crime the solicitee commits—vicarious liabilityusually treated as lesser offense than crime solicited (like attempt)

IF SOLICITEE COMPLETES CRIME, SOLICITOR FACES ACCOMPLICE LIABILITY, SOLICITATION MERGESINTO SUBSTANTIVE CRIME

IF SOLICITEE TAKES ACTION TOWARDS CRIME, SOLICITOR FACES CONSPIRACY OR ACCOMPLICELIABILITY, MERGES INTO ATTEMPT

rationale: get the actor early in the process due to the increased danger of using agents to commit crime

Doctrinal Structure:ACTUS REUS: must promote/encourage/hire/request/command another to commit a crime—BROAD

*act complete at time of solicitation, no need for further act by soliciteewords alone are enough

*will MERGE (see below) if solicitee takes action towards or completes crime

MENS REA: solicitor must intend the solicitee to commit the target crime AND intend the outcome

CAUSATION: only for solicitee, not for solicitor

DEFENSES: Renunciation(1) must renounce completely AND voluntarilyAND(2) must persuade solicitee not to commit offense OR prevent the solicitee from commiting

*cannot be out of fear of getting caught, to wait for more opportune time, to transfertarget of the crime, etc. MUST BE VOLUNTARY AND COMPLETE

COMMON LAWACTUS REUS

(1) invites, requests, commands, or encourages*ACT IS COMPLETE THE INSTANT THE ACTOR SOLICITS ANOTHER—NO NEED FOR FURTHER ACT BY SOLICITEE

MENS REA (dual)(1) intentionally invites, requests, commands, or encourages another person to engage in

conduct constituting a crime47

AND(2) must intend that the person solicited commit the target offense

*MUST SUCCESSFULLY communicate solicitation to be guilty of solicitation, however possible that if unsuccessful communication, could be guilty of attempted solicitation

MPCACTUS REUS

(1) with such purpose he commands encourages, or requests another person toengage in conduct that would constitute the crime, an attempt to commit it, orwould establish the other person’s complicity in its commission or attempted commission

MENS REA(1) D’s purpose is to promote or facilitate the commission of a substantive offense

*DO NOT NEED SUCCESSFUL communication of solicitation—even if unsuccessful, guilty of solicit.


Use of Innocent Agents

majority rule: solicitor NOT liable if he uses an innocent agent—does not meet mens rea*GET THEM FOR ATTEMPT IF BARRED BY INNOCENT AGENT RULE

minority rule: solicitor LIABLE even if uses an innocent agent (State v Bush)

Merger Doctrine Applies (no longer prosecute on solicitationm like attempt) if solicitee COMPLETES crime, solicitation merges into the substantive crime itself as an accompliceif solicitee takes STEPS toward committing the crime, solicitation merges into conspiracy or attempt as

accomplice

People v Quentin (acts NOT SUFFICIENT to constitute solicitation bc NO IDENTIFIABLE TARGET—NY)MODIFICATION ON ACTUS REUSSTATUTE INTENDED TO ADDRESS SITUATION WHERE A PERSON SOLICITS A SPECIFIC PERSON TO

DO AN ACT WHICH CONSTITUTES A CRIMETHIS WAS PUBLISHED IN A BROCHURE—NO IDENTIFIABLE TARGET

it was a call to action to burn draft cards, not intended for any one individual STATUTE NOT DESIGNED TO COVER A GENERAL SOLICITATION TO A LARGE INDEFINABLE GROUPtakeaway: need an identifiable target of solicitation to meet the elements of solicitation

People v Davis (solicitation STATUTE of GEORIA NOT UNCONSTITUTIONAL, not vague or overbroad)(1) Even speech that advocates violating the law is protected, unless the speech is directed to incite or

produce imminent lawless action, and the speech is likely to incite/produce such action**TEST=clear and present danger test

are the words used in such circumstances and of such nature as to create clear and present danger that they will bring about the substantive evilswhich Congress has the right to prevent

commissions of felonies are substantial evils Congress has the right to prevent

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State v Bush (MINORITY jurisdiction re INNOCENT AGENTS, can prosecute solicitor for using innocent agent)Montana Minority JurisdictionIT IS THE INTENT OF THE SOLICITOR, REGARDLESS OF WHETHER ACTOR IS INNOCENT AGENTSOLICITATION OF ANOTHER TO POSSESS DANGEROUS DRUGS

PROPERTY CRIMES

3 traditional forms of theft: Larceny/Larceny by trick, Embezzlement, False Pretenses

possession: sufficient control over the property to use it in a relatively unrestricted manner possessor has actual or constructive control of the property with the intent to possess it and has the

right to exclude others from possessing it at that time

custody: physical control over the property, usually for a very short period of time and usually for limited purpose(custodian’s right to use property is restricted)

title: ownership

*bailees is guilty of embezzlement, not larceny, bc has possession entrusted to him lawfully and did nottake it from victim’s possession (custody v possession)

*employees guilty of larceny if steals business property (custody v possession)

Larceny (specific intent crime)“every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another,or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowinglyand designedly by any false or fraudulent misrepresentation or pretense, defraud any other person of money, labor, or real or personal property”

(distinct from embezzlement which occurs when the thief obtains lawful possession then converts it to hisown use)

2 degrees-grand theft—value of stolen property greater than $950-petty theft—value of stolen property less than $950

Doctrinal StructureActus Reus : the trespassory taking and carrying away of the property of anotherMens Rea: intent to deprive owner permanently of propertyAttendant Circumstances: personal property belongs to anotherDefenses: Claim of Right

ELEMENTS Common Law:(1) A trespassory (without consent)(2) Taking and(3) Carrying away of (asportation)(4) Personal Property(5) From the possession of another(6) with intent to deprive the owner permanently of the property (animus furandi) and

a. exception to permanent deprivation (People v Davis)—has intent to perm deprive

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i. when D intends to “sell” property back to ownerii. when D intends to claim a reward for “finding” the property

iii. D intends to return the property to owner for refund (People v Davis)*must intend to steal

CLAIM OF RIGHT DEFENSE—believes in good faith that he has a right or claim to the property negates felonious specific intent required for theft

*also valid defense for accomplice liability (People v Williams)accomplice must share the specific intent of the perpetrator, and if perp thinks it is his property, the

accomplice logically also believes it is the perp’s property and is in good faith washelping the perp to get his property back

*generally NOT a defense to a theft that involves violence or threat of violence, ie robbery

Continuing Trespass Doctrinewhen a person takes possession of another’s property by trespass (without consent), every

moment he retains possession of it constitutes a new trespassory taking that continues until he terminates the possession of the property

purpose: so that if D did not intend to permanently deprive owner of property when taken, butlater decides to steal it, you can prosecute for larceny bc concurrence requirement ofintent to steal and taking of property satisfied

IE: if D non-consensually takes A’s car and intended to return it the next day, but then decides tokeep car permanently, not guilty of larceny at time of taking (bc no mens rea topermanently deprive) BUT under continuing trespass, since the moment he decided to keep car permanently, each moment thereafter D is committing the actus reus of larceny anew

Single Larceny Doctrineif D takes different items from the same general location, doctrine looks to circumstances of the

offense to determine if D intended to commit multiple offenses or one larceny

*if thefts were part of a continuous act, a single larceny has occurred

CA Consolidated Theft StatuteEvery person who shall feloniously steal, take, carry, lead or drive away the personal property of another,or

who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft

People v Davis (EXCEPTIONS to “permanently” language in theft statutes: sale, reward, refund)D claimed he did not steal because he did not intend to permanently deprive owner as he was

looking to take and return to store for cashCourt: 3 exceptions to permanent deprivation, STILL HAVE intent to perm deprive owner

(1) when D intends to “sell” property back to owner(2) when D intends to claim a reward for “finding” the property(3) D intends to return the property to owner for refund

STILL GUILTY OF LARCENY—HAD INTENT TO PERMANENTLY DEPRIVE via creating a

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substantial risk of permanent loss

Larceny by Trick = a type of larceny, NOT a separate crimeWhen thief obtains POSSESSION of property through lies or deception—seemingly by consent until

felonious intent discoveredrequires intent to defraudDISTINCT FROM FALSE PRETENSES

false pretenses is obtaining title or ownership of property thru false pretenses*owner intends to transfer title/ownership and possession*victim thinks he is giving D title forever

larceny by trick is obtaining possession of property thru lies or trickery*owner intends to keep title/ownership, transfer possess.* victim does not know he is giving D possession forever

ELEMENTS of Larceny by Trick:(1) taking possession of the property of another(2) by knowingly making false representations as to material facts or making false promises

(deceit)(3) with an intent to permanently deprive the owner of the property

*larceny v larceny by tricklarceny: trespass or lack of consent by the initial possessor to part with possession of an itemlarceny by trick: apparent or ostensible consent vitiated by the fraud or trick

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Robbery (specific intent crime)“the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”

*essentially an aggravated form of theft: use of force or fear to disposess the victim of property

fear=sufficient fear to cause victim to comply with the unlawful demand for his propertycan be inferred from circumstances, no need for direct proof of fearintimidation of victim equates with fear

(aggravated robbery: armed robbery, if dangerous or deadly weapon used in robbery)

Doctrinal StructureActus Reus

Mens Rea: specific intent to deprive the victim of the property permanently

ELEMENTS Common Law:(1) trespassory taking and(2) carrying away of (3) the property of another(4) with the intent to deprive the other of it permanently or for a substantial period of time(5) by the use of force or threat of immediate force, and(6) the taking must be from the person or presence of the victim

CA Robbery Statute(1) Felonious taking(2) of personal property(3) in the possession of another(4) from his person or immediate presence(5) against his will(6) by means of force or fear

CLAIM OF RIGHT DEFENSE—believes in good faith that he has a right or claim to the property negates felonious specific intent required for robbery

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False Pretenses (specific intent crime)“every person who shall knowingly and designedly, by any false or fraudulent misrepresentation or

pretense, defraud any other person of money, labor, or real or personal property”

D knowingly misrepresents present or past fact which induces the victim to give D title to the propertyrequires intent to defraud

DOES NOT APPLY TO:-opinions, seller puffery-MISREPRESENTATIONS REGARDING FUTURE CONDUCT (only present conduct)

*DISTINCT from larceny by trick: false pretenses is obtaining title or ownership of property thru false pretenses

*owner intends to transfer title/ownership and possession*victim thinks he is giving D title forever

larceny by trick is obtaining possession of property thru lies or trickery*owner intends to keep title/ownership, transfer possess.* victim does not know he is giving D possession forever

ELEMENTS Common Law:(1) a false statement of fact that(2) causes the victim(3) to pass title to the Defendant(4) D must know the statement is false and(5) thereby intend to defraud the victim

Embezzlement (specific intent crime)“every person who shall fraudulently appropriate property which has been entrusted to him”

fraudulent appropriation of property by a person to whom it has been entrustedOBTAINS POSSESSION LAWFULLY AND THEN CONVERTS THE PROPERTY (STEALS IT) to his own use

(distinct from larceny which occurs when thief takes property from another’s possession but isnot given possession by that person)

*intent to restore property to owner is usually NOT a defense

ELEMENTS Common Law Embezzlement(1) Intentional conversion of(2) the property of another(3) by someone who is already in lawful possession of it (by someone it has been entrusted to)

IE: bank teller pockets cash from teller drawerNOT larceny bc did not take money out of possession of another person

conversion: an act that seriously interferes with the owner’s ability to use that property-using something up

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-selling it/ giving it away-using it as collateral for a loan- delivering it to someone not entitled to it-inflicting serious damage to it

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Burglary (specific intent crime)

Doctrinal Structure:Actus Reus: entering a dwellingMens Rea: intent to commit a felony thereinAttendant Circumstances: dwelling of another

*burglary complete even if felony not committed once inside—NO NEED TO TAKE ANYTHING(possessory interest of physical dwelling is breached once penetrated, no need to dispossess)

ELEMENTS Modern Law Burglary(1) Entering(2) Dwelling(3) With intent to commit a felony

Old Common Law:(1) breaking (2) entering (3) dwelling (4) of another (5) at nighttime (6) with intent to commit a felony therein

People v Davis (passing a check into a slot DOES NOT COUNT AS ENTRY for purposes of burglary)D PASSED A CHECK INTO SLOT TO CASH A FALSE CHECKCourt: cannot define “enter” so broadlyMUST BE PHYSICAL PENETRATION OF DWELLING THAT THREATENS OWNERSHIP (body, tools, etc)

People v Salemme (issue in Burglary is NOT DANGER, it is INTENT TO COMMIT FELONY)D claimed he did not act dangerously and so should not be guilty of burglaryCourt: the issue is whether D had an intent to commit a felony once inside—court found he did

Receiving Stolen Propertygenerally, those who receive stolen property with knowledge that it was stolen and with intent to deprive

the owner of the property

ELEMENTS of Receiving Stolen Property(1) receiving or concealing(2) stolen property(3) with the knowledge the property was stolen and (ATTENDANT CIRCUMSTANCES)(4) with intent to deprive the owner of it

Arson(1) the burning(2) of the real property(3) of another(4) without consent or with unlawful intent

Assault (specific intent crime of committing a battery)

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RAPE—general intent crimeTraditional CL Def: “unlawful sexual intercourse with a woman without her consent with force, fear or

fraud”

Doctrinal StructureACTUS REUS: specified sexual acts, done by force, fear, fraud

MENS REA: culpable disregard for victim’s non-consent (NEGLIGENCE)(*some jurisdictions have ruled Ds reasonable mistake of fact re non-consent

is not a defense, effectively making rape an SL crime)

ATTENDANT CIRCUMSTANCES: victim did not consent

DEFENSES: Mistake of Fact (re D did not know he didn’t have consent)*not all jurisdictions

California: not a defense UNLESS substantial evidence of equivocal conducton part of V which would have led D to reasonably and in good faithbelieve consent existed where it did not

[Insanity]

[Intoxication (ONLY IF IT induced insanity)]

VARIES FROM JURISDICTION TO JURISDICTIONBasic Traditional Elements:

(1) lack of consent(2) done by force or threat, fear or fraud(3) victim resistance

Modern Definition:(1) specified sexual act or acts(2) victim non-consent AND(3) proof of D’s culpable disregard for victim’s non-consent

Modern Doctrine(1) Lack of Consent(2) Elimination/relaxation of resistance requirement(3) Elimination/relaxation of physical force requirement(4) Emphasis on D’s culpable disregard for victim’s non-consent

-sufficient notice of non-consent = FORCE REQUIREMENT-D’s negligence in regards to non-consent = NO FORCE REQUIREMENT

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2 Approaches for Proving D’s Culpable Disregard of V’s Non-Consent (dep. on jurisdiction)(1) proof that D used extrinsic force to accomplish the sexual act majorityOR(2) proof that D proceeded with the sexual act under circumstances that demonstrate at least

negligent disregard for the victim’s non-consent minority

2 Approaches for Assessing V’s Non-Consent

majority: burden of proof re non-consent on VICTIM victim must have communicated unwillingness to D NON-CONSENT CANNOT BE PROVEN FROM SILENCE

minority: consent = an affirmative and freely willed agreement

Extrinsic Force Requirement—most jurisdictions

ALL JURISIDICTIONS WITH THIS RULE REQUIRE PROSECUTION TO PROVE D HAD SUFFICIENT NOTICE OF VICTIM’S NON-CONSENT SO THAT PROCEEDING WITH ACT DEMONSTRATESCULPABLE DISREGARD FOR VICTIM’S SEXUAL AUTONOMY

IN MOST JURISDICTIONS, D’S CULPABILITY DEPENDS OF PROOF THAT D USED EXTRINSIC FORCEOR THREAT OF SUCH FORCE TO ACCOMPLISH THE ACT

*meaning of extrinsic force varies from jurisdiction to jurisdictionGENERALLY: accomplished sexual act through violence, physical coercion or threat

most jurisdictions: D’s culpability depends on proof that D used extrinsic force or threats of suchforce to accomplish actNOT ENOUGH D COMMITED ACT WITHOUT VICTIM’S CONSENT

other jurisdictions: force requirement means just D’s movements needed to accomplish sexual act

few jurisdictions: have eliminated the word force from their statutesit is enough that D used the “force necessary to accomplish the sexual act”

NO Extrinsic Force Requirement—Californiahow do you determine D’s culpability re non-consent?

majority: require some form of notice of non-consent so as to prove D’s negligence as tothe non-consent

BURDEN OF PRODUCTION ON D so treated like mistake of fact

CA Force: prosecution need only show D used physical force of a degree sufficient to support a findingthat the act of sexual intercourse was against the will of the victim People v Griffin

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Fraud in Rape

Fraud in INDUCEMENT: law treats it like intercourse was CONSENSUAL if V tricked or deceived into having intercourse knowingly

IE posed as a celebrity, induces prostitute to have sex for counterfeit $, says sex will cure a disease, etc.

Fraud in FACTUM: CONSENT INVALID if V is unaware she consented to act of sexual intercourseas a result of fraud

IE patient signs consent form allowing surgeon to insert instrument in vagina whileunder anesthesia, instrument is penis, surgeon guilty of rape

CA Rape Statute(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the

perpetrator, under any of the following circumstances:

(1) Where a person is incapable, because of a mental disorder or developmental or physicaldisability, of giving legal consent, and this is known or reasonably should be known to the person committing the act…

(2) Where it is accomplished against a person’s will by means of force, violence, duress, ormenace, or fear of immediate and unlawful bodily injury on the person of another

(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance,or any controlled substance, and this condition was known, or reasonably shouldhave been known by the accused.

(4) Where a person is at the time unconscious of the nature of the act, and this is known tothe accused. As used in this paragraph, “unconscious of the nature of the act” meansincapable of resisting because the victim meets one of the following conditions:

(a) Was unconscious or asleep;(b) Was not aware, knowing, perceiving, or cognizant that the act occurred(c)Was not aware, knowing, perceiving or cognizant of the essential characteristics

of the act due to the perpetrator’s fraud in fact(d) was not aware, knowing or perceiving, or cognizant of the essential

characteristics of the act due to the perpetrator’s fraudulent representationthat the sexual penetration served a professional purpose when it served no professional purpose

(5) Where a person submits under the belief that the person committing the act is thevictim’s spouse, and this belief is induced by an artifice, pretence, or concealment practice by the accused, with intent to induce the belief

(6) Where the act is accomplished against the victim’s will by threatening to retaliate in the

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future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threaten to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury or death

consent = positive cooperation in the act or attitude pursuant to an exercise of free will THE PERSON MUST ACT FREELY AND VOLUNTARILY and have knowledge of the nature

of the act or transaction involved A CURRENT or PREVIOUS dating or marital relationship SHALL NOT BE SUFFICIENT to

constitute consent where consent is at issue

force = the prosecution need only show the defendant used physical force of a degree sufficient tosupport a finding that the act of sexual intercourse was against the will of the victim

CA Rape of Spouse Statute(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse

accomplished under any of the following circumstances:

(1) Where it is accomplished against a person’s will by means of force, violence, duress,menace, or fear of immediate and unlawful bodily injury on the person of another

State in Interest of MTS (FORCE REQUIRED IN RAPE is enough so as to COMPLETE act of PENETRATION)17 year old penetrates 15 year old while she was asleep, she wakes up and slaps him—no force evidenceNJ Sexual Assault Statute:

“commission of sexual penetration with another person with the use of physical force or coercion”physical force requirement = AS MUCH FORCE AS IS NEEDED TO COMPLETE THE ACT OF PENETRATION

Brown v State (victim must USE EVERY PHYSICAL POWER TO RESIST rape)D convicted of rape, asserts only that V tried to escape, did not try to resist physicallyvictim DID NOT PUT UP THE UTMOST RESISTANCEabsence of consent is not enoughNO EVIDENCE OF PHYSICAL RESISTANCE—no marks on D of signs of struggle

-she said let her go, she screamed-no other verbal protests-tried to escape, but retreat is not the same as resistancevery harsh, later decisions rejected this decision, in 1905

People v Barnes (rape must be committed AGAINST V’S WILL BY MEANS OF FORCE OR FEAR OF INJURY)D convicted of rape, no proof V resisted or that D used force to overcome her resistanceREJECTION OF PROOF OF RESISTANCE requirement in 1966now only need the crime to be committed against victim’s will and by means of force or fear of

immediate and unlawful bodily injury(some can be paralyzed with fear, others it’s too dangerous to resist)LACK OF RESISTANCE DOES NOT CONSTITUTE CONSENTResistance now used as evidence to evaluate whether D reasonably/honestly believed he had consent

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DEFENSES

Justification: was D justified in doing what he did?indicates D’s conduct was morally good/socially desirable/or not wrongfuloutcome (harm) of D’s conduct is proper

Excuse: Should D be excused for what he did?

MISTAKE OF FACT: evidence of mental state or defense to certain offenses, p. 243

Valid Defense if it negates the mens rea of an offense (unless mens rea is SL)

IE:-whether gun was loaded-mistake about who owned the laptop taken by D in theft case

MPC Sect. 2.04 Ignorance or Mistake p. 247(1) Ignorance or mistake as to a matter of fact or law IS A DEFENSE IF:

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; OR

(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense

**mistake DOES NOT HAVE TO BE REASONABLE if the mens rea of the offense is purposely or knowingly

STEPS OF ANALYSIS:(1) Does the MOF relate to an element of the offense as to which mens rea is required? AND, if so,(2) Does the MOF negate the mens rea? IF YES, CAN ASSERT MOF DEFENSE (unless SL offense)

Mens Rea Purpose, Knowledge, Reckless (objective)

Mistake is honest, valid defense

Mens Rea Negligent (subjective) Mistake is honest AND reasonable, valid defenseStrict Liability NO mistake is valid defense

*bc no mens rea to negate with SL crimes, legally irrelevant

Common Law MOFGeneral Intent Crimes:

-MOF must negate general intent mens rea element of the offenseIE unauthorized use of another’s car: MOF that she had consent of owner negates mens rea

Specific Intent Crimes-MOF must negate specific intent mens rea element of the offense

IE Larceny: MOF that property was abandoned negates mens rea bc did not intend to steal

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MISTAKE OF LAW (generally not a valid defense, but there are exceptions)

Generally NOT a defense, BUT THERE ARE EXCEPTIONSmistakes about specialized legal knowledge, matters that lie beyond the knowledge of most lay persons

IGNORANCE OF THE LAW IS NO EXCUSE (GENERALLY) MPC 2.02(9)rationale: the law is definite, so any mistake is inherently unreasonable

also if it were a defense, we would be concerned about inviting fraud bc very hard to disprove also it encourages people to learn about the law

THERE ARE EXCEPTIONS—IF NEGATE MENS REA REQUIREMENTmistakes about specialized legal knowledge, matters that lie beyond the knowledge of most lay persons

MPC Provisions Sect. 2.04 (p. 247)(1) ignorance or mistake as to the matter of fact or law is a defense if

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense, OR(b) the law provides that the state of mind established by such ignorance or mistake constitutes a

defense

-status of a divorce decree in bigamy case-tax law IE willfully failing to file tax return: if you don’t know you were supposed to file, negates

specific intent (willfully = knowing you need to but not doing it anyway)-moving out of apt, taking floor boards believing he had legal right to do so—actually legally belonged

to landlord—“purposely, knowingly, recklessly destroying property of another” but MOL of whoowned floorboards negated mens rea

-failing to register as ex felon with police: if you didn’t know that was a requirement, lack knowledge of lawnegates mens rea

-if statute provides “knowingly using X in an unlawful manner” not knowing it was illegal is valid MOL

4 valid MOL defenses: MPC 2.04, p. 265 (MUST NEGATE MENS REA REQUIREMENT OF CRIME)(1) mistakes about mens rea (mistake of specialized legal knowledge that negates mens rea) Regina v

Smith(2) if knowledge that prohibited conduct is unlawful is an element of the crime rare(3) reasonable reliance on official statement of law later changed/deemed invalid rare(4) inadequate publication of the law rare

*unlike MOF, MOL DOES NOT HAVE TO BE REASONABLE TO BE VALID—ONLY NEEDS TO NEGATE MENS REA

STEPS OF ANALYSIS(1) Identify attendant circumstances(2) Does D require specific knowledge regarding the attendant circumstances?(3) Identify Mens Rea required in the statute(4) Does D lack the mens rea? IF YES, CAN ASSERT MOL DEFENSE

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People v Rypinski 1990, p. 248 (acquitted of shooting friend bc mistake of fact re bullets loaded in his rifle)“A person is not relieved of criminal liability for conduct because he engages in such conduct under a

mistaken belief of fact UNLESS(a) such factual mistake negatives the culpable mental state required for the commission of an offense” NY PENAL LAW

MOF AND INTOXICATION NEGATED MENS REA HERED DID NOT KNOW THE RUFLE WAS LOADED (shot his friend in the knee)ACQUITTED OF RECKLESS ASSAULT 2ND DEG. BC LACK OF KNOWLEDGE NEGATED MENS REA

“A person is guilty of assault in the second degree when:(4) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument” NY PENAL LAW

United States v Baker 1986, p. 255 (D claimed to not know it’s crime to sell fake Rolexes-NO MOF defense)“anyone who intentionally traffics or attempts to traffic in goods or services and knowingly uses a

counterfeit mark on or in connection with such goods and services…”(bold = mental elements, underline = non-mental elements)

*D: MOL BECAUSE HE DIDN’T KNOW IT WAS ILLEGAL TO SELL FAKE WATCHES*COURT: KNOWLEDGE IS NOT AN ELEMENT OF THE CRIME OF SELLING WATCHES, NO MOL DEFENSE

Regina v Smith 1973, p. 267 (YES MOL defense to Criminal Damage Act 1971)“a person who without lawful excuse destroys or damages any property belonging to another intending to

destroy or damage any such property or being reckless as to whether any such property would bedestroyed, shall be guilty of an offense”(bold = mental elements, underlined = non-mental elements)

*D: MOL BECAUSE HE DIDN’T KNOW IT WASN’T HIS PROPERTY*COURT: KNOWLEDGE IS A REQUIRED ELEMENT OF THE CRIME, YES MOL DEFENSE

Specific Intent: when definition of crime refers to intent/purpose to do some further/future act or consequencebeyond the conduct or result that constitutes the actus reus of the crime

General Intent: when the definition of crime is only of the description of a particular act—no intent or purposeto do some future act or achieve some further consequence beyond the conduct or result that constitutesthe actus reus of the crime*actor can be convicted upon proof of any lesser mens rea (knowingly, recklessly, negligently)

People v Sally Mistook p. 297 (burglary specific intent, trespass general intent, abandon fridge strict liability)

Burglary: “every person who enters any building or part of a building at night with intent to commit grandor petit larceny or any felony is guilty of burglary”

Trespass: “every person who willfully commits a trespass by any of the following is guilty of amisdemeanor:(a) entering and occupying real property or structures of any kind without the consent of the

owner, the owner’s guest, or the person in lawful possession”

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Abandoned Refrigerators: “every person who discards or leaves in any place accessible to children anyrefrigerator, having a capacity of one and one-half cubic feet or more, which is no longer in use, andwhich has not had the door removed or the hinges and such portion of the latch mechanismremoved to prevent latching or locking of the door is guilty of an infraction (MINOR OFFENSE)

NECESSITY—Justification *Choice between 2 evils

*triggered when actor engages in what would otherwise be a crime to order to avoid a greater harm*MUST SHOW THE EVIL CHOSEN WAS GREATER THAN THE OTHER EVIL

DOES NOT APPLY TO HOMICIDE

*traditionally used in situations where necessity is borne out of FORCES OF NATURE, and D’s action is in interestof the general welfare (as opposed to duress = human forces)

rationale for necessity defense: public policy—the law ought to promote the achievement of highervalues at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law

ELEMENTS of Necessity(1) D must be faced with clear and imminent danger(2) D must reasonably expect that his action will be effective in abating the danger he seeks to avoid(3) there must be no effective legal way to avert the harm(4) the harm that D will cause by violating law must be less serious that the harm he seeks to avoid(5) the legislature must not have precluded the particular choice of evils defense that D is seeking

(some enumerate crimes that are not eligible for necessity defense, ie homicide)(6) D must have clean hands (not have wrongfully placed himself in the situation)

Limitations-some states limit necessity to emergencies created by natural forces (exclude human forces)-some states limit to protections of persons or property only-DOES NOT APPLY TO HOMICIDE CASES (use self defense/imperfect self defense instead)

Nelson v State (necessity defense not recognized—STOLE EQUIPMENT TO FREE CAR—not proportional harm)D claimed the car would tip over if he didn’t free it, and it was cold BUT D’s friend slept in the car, so threat of tip-over NOT IMMINENTPROPORTIONALITY (4) ISSUE

THE HARM D CAUSED BY STEALING AND DAMAGING EXPENSIVE EQUIPMENT WAS NOT PROPORTIONAL TO THE HARM AVOIDED—COST OF DAMAGE CAUSED MUCH GREATER

People v Lovercamp (2 INMATES ESCAPE because threatened with rape by other inmates)met all 6 elements of DURESSADDED ELEMENT for prison escapees:

Must turn themselves into authorities immediately upon escape(here, they were immediately apprehended, so immaterial in this case)

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SELF-DEFENSE—Justification person is justified in using deadly force against another if (a) he is not the aggressor and (b) he reasonably

believes that such force is necessary to repel the imminent use of unlawful deadly force by the otherperson

(deadly force = force likely to cause or intended to cause death or serious bodily harm)*aggressor may not use deadly force in self defense UNLESS regained the right of SD, see below

BURDEN OF PRODUCTION PRETRIAL ON D

ELEMENTS Common LawD MUST:(1)(a) Actually and (b) Reasonably believe that he faces a threat that is (objective standard)(2)(a) Imminent and (b) Unlawful and that (of death or serious bodily injury) (c) the force used in response was necessary/proportional to the threat (when deadly force)

*if person acted with reasonable belief that emergency existed and there were no alternatives available,sufficient EVEN IF BELIEFS ARE MISTAKEN—objective reasonable man test

*NO DUTY TO RETREAT

Retreat Rule (MINORITY jurisdictions)MAY NOT use deadly force to repel an unlawful threat of deadly force if that person is aware of

a safe avenue of retreat from the threat

duty activated the moment D sees and reasonably believes he is threatenedIF D DOES NOT FIRST RETREAT, CANNOT ASSERT SELF DEFENSE

APPLIES TO:(1) an innocent party facing a deadly threat (if you are at fault, does not apply)(2) outside the home and (cannot be inside your home)(3) when innocent party wishes to use deadly force in response to threat

MAJORITY DO NOT REQUIRE RETREAT RULES

Castle Exception—some jurisdictionsremoves duty to retreat when intruder in your homecan use deadly force against intruderMUST

(1) reasonably believe intruder intends to inflict serious bodily harm or death(2) must not have provoked intrusion(3) must not have provoked threat or use of deadly force

Last Wrongdoer Rule (some jurisdictions—in response to Initial Aggressor Rule rejections)

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ASK: Was D’s use of force an honest and reasonable defensive response to the victim’s wrongfulescalation of the conflict to the level of deadly force?

Initial Aggressor Rule (some jurisdictions—other jurisdictions have last wrongdoer rule)Once D starts a violent conflict, he remains an aggressor (AND CANNOT ASSERT SELF DEFENSE)

UNLESS D takes some significant and usually dramatic action to restore Self Defense rights= renunciation of aggression with BOTH words and deeds= withdraws from the conflict

*if no withdrawal of D from conflict, cannot assert self defense EVEN IF other party wrongfully escalated the conflict from non-deadly to deadly force

**very harsh rule when there are 2 wrongdoers—some states instead have last wrongdoerrule to avoid this harshness

Florida Stand Your Ground Statute—NO DUTY TO RETREAT, legislature rejectsA person who is not engaged in an unlawful activity and who is attacked in any…place where he has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony

Defense of Others

majority rule: intervenor may use deadly/non deadly force to the extent that such forcereasonably appears to the intervenor to be justified in defense of the 3rd party

minority rule: intervenor may only use force to defend a 3rd party if the 3rd party would in facthaven been justified in using force in self defense, and force that is proportional to

thethreat

MPCA person is generally justified in using force upon another person if he believes that such force is

immediately necessary to protect himself against the exercise of unlawful force by the otherindividual on the present occasion

*NO REASONABLENESS STANDARD—individualized standard (if D believes such force necessary)

People v Goetz (REJECTION of MPC subjective standard—INDIVIDUALIZED STANDARD RE REASONABLE BELIEF)D killed 3 on subway, then the last 1, thought he was going to be robbed, had been robbed beforeNYCourt rejects the completely subjective test of the MPC in determining whether self defense appropriate

(MPC = no reasonableness standard, only if D believed it necessary to defend himself with force)Court thinks MPC standard allows anyone to justify self defense—too subjective

HERE, INDIVIDUALIZED STANDARD: (mix of MPC and Common Law objective test)A REASONABLE PERSON, GIVEN D’S PRIOR EXPERIENCES, IN D’S SHOES“WOULD A REASONABLE PERSON HAVE FOUND USE OF DEADLY FORCE NECESSARY?”

State v Norman (D convicted of involuntary manslaughter because THREAT WAS NOT IMMINENT)D suffered 20 years of abuse and continuing fear at hands of her husband

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D killed him while he was sleepingCOURT REFUSED SELF DEFENSE INSTRUCTION

He was sleeping, THREAT WAS NOT IMMINENTD HAD OTHER ALTERNATIVES OTHER THAN KILLING HIM

Test of Imminence: objective individualized reasonable person test

DURESS/COERCION—Excuse where extrinsic circumstances compel a person to perform unlawful acts he does not wish to commit

but was forced to in response to threat of death or great bodily harm

DOES NOT APPLY TO HOMICIDE

*traditionally used in situations where duress is borne out of HUMAN ACTION, and D’s action does not promote general welfare (as opposed to necessity defense = natural forces)

rationale: no reason to impose criminal sanctions against someone who committed unlawful actswhich anyone else given the circumstances would have also committed

ACTOR MUST CHOOSE BETWEEN THE RISK THE WRONDOER WILL CARRY OUT THREAT ANDCOMMITTING THE CRIME HE IS BEING FORCED TO DO

ELEMENTS of Duress(1) when another person has threatened to kill or seriously injure D or a 3rd party(2) D reasonably believed the threat was genuine(3) the treat was imminent at the time of D’s criminal act(4) there was no reasonable escape from threat except through compliance with coercer’s demands(5) D was not at fault for finding himself in the coercive situation(6) DOES NOT APPLY TO HOMICIDE

People v Lovercamp (SEE NECESSITY ABOVE, BUT IT WAS REALLY MORE A CASE OF DURESS)

US v Contento-Pachon (D SMUGGLED DRUGS INTO US to avoid his and his family’s death)Court allowed DURESS instruction, NOT necessity instruction

necessity is for general welfare interests and forces of nature, not applicable hereCAN ASSERT DURESS WHEN UNDER FUTURE THREAT OF HARM IF CANNOT ESCAPE SITUATION

issue for court regarding Duress: was the threat immediate, and was D lacking in an opportunity to escape?*avenue of escape must be reasonable: was not reasonable to flee with family: would need to pack

up belongings, quit job, travel beyond reaches of drug traffickers*immediate here = force of threats continued to restrain him until off the flight—and refusal to

comply = immediate death of him and his family

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INSANITY—Excuse--focuses on D’s condition at the time of the offense

rationale: those who lack mental capacity to conform to strictures of the law should not be held criminallyresponsible for their conduct

BURDEN OF PRODUCTION PRETRIAL ON D

MPC American Law Institute TEST:(1) if as a result of mental disease or defect:(2) D lacks substantial capacity to appreciate wrongfulness/criminality of his conductOR(2) lacks capacity to conform his conduct to requirements of the law

CA TEST (from 2009 prop 8—before this test was M’Naughten from 1982-2008, now again likeM’Naughten)(1) D is incapable of knowing or understanding the nature or quality of his actOR(2) D is incapable of distinguishing right from wrong(3) at the time of the commission of the offense

COMMON LAW M’NAUGHTEN TEST At the time of commission,

(1) D had a mental disease or defect, AND (see tests below for mental disease/defect)(2) D was incapable of knowing or understanding the nature and quality of his act OR(3) D did not know that what he was doing was wrong

AKA incapable of distinguishing right from wrong (legal or moral) at the time ofcommission of the offense

Mental Disease or Defect TESTS:(1) McDonald Test

any abnormal condition of the mind which substantially affects mental oremotional processes and substantially impairs behavior controls

THINGS COURTS LOOK TO:-does the condition have clear symptoms?-do medical and scientific communities support recognition of the

condition as a criminal defense?-is it a condition defendants are likely to bring upon themselves?-is the condition easily feigned?-are there policy reasons to exclude/include this condition as a

disease?

(2) APA Testthose severely abnormal mental conditions that grossly and demonstrably

impair a person’s perception or understanding of reality and that73

are not attributable primarily to the voluntary ingestion of alcohol or other psychoactive substances

*courts usually EXCLUDE disorders whose primary effects are on D’s desires, judgment and conduct; INCLUDE those that distort D’s reality perception

and thought processes

problems with M’Naughen test (People v Drew):-exclusive focus on cognitive capacity of D, which is often unrelated to D’s illness or crime-attempts to relieve punishment of only those who have NO cognitive capacity

BUT there are degrees of impairment/awareness, gray not black and whitecan know nature and quality and wrongfulness, but commit anyway bc of disease

*does not address situation where D understands actions but cannot control behavior

corrective measures of MPC test:adds volitional requirement to test and more variation regarding capacity so that itis not an all-or-nothing proposition like in M’Naughten test

*WHEN INSANITY JOINED WITH OTHER PLEAS:-FIRST tried as if only the other pleas entered—AND presumed to be sane-THEN if found guilty, OR if insanity plea is the only plea entered, question of whether D

sane/insane is tried-IF INSANE: judge determines if D has regained sanity

-if STILL INSANE: committed to institution

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INTOXICATION—ExcuseEVALUATED AT TIME OFFENSE COMMITTEDcommon law treats it as an affirmative defense

NEVER A FULL DEFENSE FOR VOLUNTARY HOMICIDE

*2 distinct defenses(1) voluntary intoxication

CANNOT BE ASSERTED FOR GENERAL INTENT CRIME (People v Register)ONLY ASSERTABLE FOR SPECIFIC INTENT CRIMES TO NEGATE SPECIFIC INTENT MENS REA*D must show he did not have specific intent required for commission of crime due to intoxication

D MUST ARGUE WHY INTOXICATION SHOULD ELIMINATE CRIMINAL LIABILITY

*some jurisdictions have eliminated voluntary intoxication defense altogether

MPC: may be used to negate mens rea of PURPOSE OR KNOWLEDGE BUT NOT RECKLESSNESS ORNEGLIGENCE

(2) involuntary intoxicationCAN BE ASSERTED TO NEGATE BOTH GENERAL AND SPECIFIC INTENT CRIMES

general intent negation: negates intent to do physical action that constitutes the crimespecific intent negation: negates intent to bring about result of the crime

People v Register (NO VOLUNTARY INTOXICATION defense when GENERAL INTENT CRIME)*CANNOT USE INTOXICATION DEFENSE WHEN CRIME IS 2ND DEGREE UNINTENTIONAL MURDER

BECAUSE IT IS A GENERAL INTENT CRIME*CANNOT USE VOLUNTARY INTOXICATION DEFENSE WHEN MENS REA ELEMENT OF CRIME IS

RECKLESSNESS

because it is in itself reckless to get so intoxicated, so it cannot negate the mens rea of recklessnessTHEREFORE D GUILTY OF 2ND DEGREE UNINTENTIONAL HOMICIDE (depraved heart murder, mens rea

is reckless)

DIMINISHED CAPACITY—Excuse *lack of capacity to entertain required mental state for the crime*not a true affirmative defense—affects evaluation of whether prosecution has proved the requisite mens reaEVALUATED AT TIME OFFENSE COMMITTED

INCOMPETENCE*lack of ability to understand the legal proceedings and assist in his own defense*can arise at many points during criminal caseEVALUATED DURING CRIMINAL PROCEEDINGS

lack of competence bars prosecution while D incompetentcourt can delay or suspend criminal proceedings resume proceedings if D regains competence

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ETC

MORAL CONDEMNATION OF THE COMMUNITYPUNISHMENT IS JUSTIFIED BY COMMUNITY CONDEMNATION

Burden of Proof(1) BURDEN OF PRODUCTION

-burden of producing evidence-P: burden of producing evidence re the elements of the crime charged-D: burden of producing evidence re the affirmative defenses*must show that a jury could reasonably find X*effect is that the issue has been properly raised to try upon

(2) BURDEN OF PERSUASION-burden of persuading the factfinder re the issue

-P: burden beyond a reasonable doubt as to every element of the crime charged-D: (usually) burden to prove defense (although ct can assign burden to P)

-very high: beyond a reasonable doubt-somewhat high: clear and convincing evidence-low: preponderance of the evidence

Discretion in Criminal Case (p. 1-19)

Police control first portal: whether and how to investigate (incl. minimal or extensive investigation)-influences: police policy, legal boundaries, info available about case, social/cultural perceptions, gravity of

harm, criminal history of the accused, policy resources-If police decide case warrants prosecution, they contact prosecutor’s office Prosecutors control second

portal: the charging of a crime (rules, standards, and statues govern this discretion)-influences: limited time and resources, changes in political/social dynamics, new research, education or

info-turn to statutes to determine if the law is applicable to particular cases (federal, state, and local)

-if conduct involved violated criminal law + merits prosecution, jurisdiction’s charging procedures

Charging procedures (constraint placed on prosecutorial discrimination)(1) grand jury—citizens of community determine whether prosecutor can file charges (federal/some

states)(2) prosecutorial charging + preliminary hearing—prosecutor alone charges, court can review decision**probable cause standard to charge

Arraignment: formally labeled D, determines if D has counsel, informs D of charges, D enters plea, free/held untiltrial

Plea Negotiations: 90%+ state and 95% federal convictions are pleas of guilty—don’t go to trial—get early guiltyplea for lighter sentences than might be assigned if D pushes case through system

Discovery: P and sometimes D provide info about case to opposing side—disclose exculpatory info (favorable to D)

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Trial: 5-10% cases go to trial-motions, jury selection (voir dire), swearing in of jurors, P opening statement, P evidence (direct and cross

examination), P exhibits, D opening (or after P opening), D rebuttal evidence, P closing argument), jury deliberation, verdict (conviction: beyond a reasonable doubt—highest legal standard)

Sentencing (2 types of schemes) and Probation(1) determinate—base term and limited ranges to increase or decrease at judge’s discretion(2) indeterminate—minimum sentence but range, can be released early on parole (ie 25yrs-life)

Purpose of Punishment (p. 31-32)

2 Broad Theories(1) Utilitarianism

-foundation: people are hedonistic and seek to augment pleasure and avoid pain people are rational and capable of calculating/weighing their conduct therefore they will decide whether punishment is worth potential gain

-object of law is to augment societal happiness—extract as much unhappiness/pain-crime and punishment are both evils because they both result in pain to indiv and society

-PAIN OF PUNISHMENT UNDESIRABLE UNLESS LIKELY TO PREVENT MORE PAININ THE FUTURE THAN IT INFLICTS BY PUNISHMENT

-purpose is to prevent future crime, not to punish prior wrongdoing-forms:

-general and specific deterrence-rehabilitation

(2) Retribution-foundation: wrongdoing creates moral disequilibrium in society

wrongdoer receives benefits of others obeying the law but he does not do so proportional punishment restores equilibrium: pays his debt

-humans possess free will, and it is a choice to commit wrongs, so punishment justified-PAIN OF PUNISHMENT UNDESIRABLE UNLESS PERSON HAS FREELY CHOSENTO COMMIT AN OFFENSE (PUNISH WRONG IF PERSON LACKS FREE CHOICE)

-purpose: to punish the wrongdoing itself, regardless of future prevention-forms: retribution

Deterrence—future-oriented—sequentialist+utilitarian—make punishment useful to society—reduce crimeGeneral: frightening other potential offenders to not offend—becomes a lesson to othersSpecific: frighten guilty person for re-offending

Incapacitation—future-oriented—sequentialist+utilitarian—make punishment useful to society—reduce crimedeprive individual of ability or opportunity to commit further crime—denies offender the choice *upon release, special deterrence effect begins and hopefully he will not re-offend

Rehabilitation—future-oriented—sequentialist+utilitarian—make punishment useful to society—reduce crimeprevent crime by changing criminal so he no longer desires to commit crime

Retribution—retrospective-oriented—concerned with criminal’s blameworthiness—no advancement to collectivewelfare of society—punish criminal because they deserve it—an eye for an eye

Denunciation—express publicly society’s disapproval of blameworthy conduct—concerned with blameworthinessof criminal, but also utilitarian—educate society and reinforce norms reflected in common law

Dudley v Stephens 1884, p. 532 (marooned, cannibalism, defense of necessity not valid when you kill people)NECESSITY DEFENSE CANNOT BE INVOKED IN HOMICIDECourt: more important to preserve the integrity of life than to preserve your ownKilling of Parker not justified, Ds may have survived 4 more days until rescue without eating Parker

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Sentence commuted, was death penalty, speaks to denunciation

United States v Bergman, 1976, p. 34 (Rabbi defrauded gov’t, court decided appropriate types of punishment)RETRIBUTION, DENUNCIATION, GENERAL DETERRENCECourt gave Rabbi 4 months in prison—this was a premeditated crime, court does not want to make

exceptions for privileged offendersD argued for behavioral sanction ie community service, volunteer workcourt: that would not be a punishment as Rabbi would be doing what he does for a living as punish.

Rabbi has free will, chose to commit the crime

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Criminal Law Outline

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