OUTLINE - Criminal Law - Finlen2008ndlaw/pad/outlines2/PAD CrimLawOutline - Dutile 2008.pdfCRIMINAL...

CRIMINAL LAW with Professor Dutile Fall 2008

Ryan Finlen

“Criminal law is about defining society’s minimal standards, not heroic or optimal standards.”

~ Professor Dutile

Overview A. The Start of a Criminal Case

a. Exercises of discretion pervade the criminal justice system. E.g. Police officers could choose not to enforce the law, grand juries could choose not to indict an offender, district attorney’s could choose not to prosecute an offender, etc.

b. Investigations are subject to two influences: i. Substantive Criminal Law – law that creates and defines criminal offenses, such as murder,

robbery, assault, etc. ii. Criminal Procedure – the creation and definition of rules for enforcing the laws against

criminal offenses.

B. Charging: The Prosecutor’s Office 1. The Charging Decision

a. To guide the decision of prosecutorial discretion (whether or not a prosecutor should bring charges), certain organizations (such as state bar associations, legislatures, and prosecutorial organizations) have adopted standards, rules, and statutes.

2. The Applicable Law a. Currently, nearly all crimes are created by legislatures through statutes. b. A collection of statutes devoted to a particular topic is called a code. c. Model Penal Code historical foundations

i. Widespread dissatisfaction with existing criminal codes in the 1950’s prompted a group of criminal law scholars to assemble and draft the MPC as a coherent criminal code to be used as a guide for reforming state criminal statutes.

ii. The MPC is a guide, it is not the law in any jurisdiction unless the legislature or judge adopts its provisions.

3. Grand Jury versus Prosecutorial Charging and Preliminary Hearing a. Grand Jury

i. A Grand Jury is a citizen jury which determines whether a prosecutor can file charges in court.

ii. There are two functions of a Grand Jury: 1. Investigate crime through the grand jury’s power to subpoena witnesses, documents,

and other evidence. 2. Determine whether there is probable cause that a crime was committed and that the

person the prosecution seeks to charge committed it. iii. If the grand jurors find the standard has been met as to any or all of the charges, they

issue an “indictment” as to those charges. b. Prosecutorial Charging and Preliminary Hearing

i. Some jurisdiction allow the prosecutor to charge a defendant directly via a “complaint.” ii. For serious offenses, the prosecution must satisfy the burden of “probable cause” in a

preliminary hearing before a court. iii. Unlike a grand jury, preliminary hearings usually have the target of the proceedings (not

called a defendant yet) present and are in open court. iv. If the probable cause burden is met, the later proceedings are base upon an “information,”

which is very similar to an “indictment” in grand jury proceedings.


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C. In the Courthouse 1. Arraignment, Counsel, and Settings

Arraignment – This phase determines whether the defendant has counsel, would like counsel, or wishes to represent himself. (Representing oneself is known as proceeding “pro se,” or “in propria persona,” or simply “in pro per”)

Counsel – Individuals are guaranteed the right to counsel by the Constitution. Securing representation is problematic for those individuals with little income, but whose income is too large to qualify as indigent for the purposes of court-funded representation.

Settings – After the court informs the defendant of the charges against him, the court requests the defendant to enter a plea of guilty or not guilty. The judge decides whether the defendant is to be held in custody or whether he may remain free on certain conditions. Later proceedings are set by the court, including pre-trial conferences, motions, or even the actual trial.

2. Plea Negotiations 3. Discovery 4. Trial 5. Post-Trial: Sentencing and Probation

D. Participants 1. Prosecutor 2. Defense counsel 3. Judge 4. Defendant 5. Victim 6. Court personnel 7. Jurors 8. Probation officer 9. Media

Punishment (p. 23-90) A. INTRODUCTION B. WHAT IS PUNISMENT? See Kansas v. Hendricks (1997) C. WHY PUNISH? Five rationales for punishment (DR. RID)

1. Deterrence – In theory, deterrence reduces crime through the fear of punishment. Deterrence comes in two flavors: a. Specific deterrence – this is the idea that punishing an individual will make that individual less

likely to commit further crimes for fear of receiving punishment again. b. General deterrence – this is the notion that punishing an individual will deter the general public

from committing crimes for fear of receiving the same punishment as that individual. Essentially, the punished individual serves as an example to the public.

2. Retribution – this theory punishes a criminal because that criminal deserves punishment. It is also known as the “just deserts” theory.

3. Rehabilitation – This rationale seeks to prevent crime by changing the criminal so that he no longer desires to commit crime. If successful, the criminal no longer needs to be deterred or incapacitated.

4. Incapacitation – Incapacitation seeks to deprive the criminal of the ability or opportunity to commit crime.


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5. Denunciation – The goal of denunciation is to publicly express society’s disapproval of blameworthy conduct. Denunciation seeks through the condemnation of a criminal to educate society about and reinforce the norms reflected in the criminal law.

See United States v. Bergman (1976)

D. HOW WE PUNISH

E. HOW MUCH WE PUNISH See Ewing v. California (2003) – U.S. Supreme Court

Defendant attempted to steal golf clubs and was apprehended. Trial court in California sentenced defendant to 25 years to life in prison per the three strike law. The Supreme Court held that Appellant’s (Ewing’s) sentence of 25 years to life is not grossly

disproportionate and therefore does not violate the Eighth Amendment. See Coker v. Georgia See Kennedy v. Louisiana (2007)

This case prohibits the use of the death penalty for crimes that do not result in a victim’s death. Even for crimes as heinous as the rape of a child would not warrant the death penalty.

Making Criminal Law (p. 91-163) A. Legislators and Judges - Current American system views the legislature as having the ultimate authority for defining and creating

criminal offenses. Common law in the arena of criminal law has gone by the wayside, at least in the American system.

- Legality: term often used to express the preference for legislatively defined crime. See Khaliq v. Her Majesty’s Advocate (1983)

Defendants were brought before the trial court on charges that were not codified by Scotland Statute. Court stated that “The great strength of our common law in criminal matters is that it can be invoked

to fill a need. Over the centuries, it has operated unless its jurisdiction is displaced by statute or by decision of the courts.”

The Court invokes the theory that the legislature has recognized the dangers of abusing chemicals in the Solvent Abuse (Scotland) Act 1983. Court goes on to comment that although the Act does not explicitly brand the misuse of substances among children as criminal, the fact that it identifies such behavior as dangerous is relevant to the instant case.

In essence, the court, or common law, made criminal what was not codified by statute.

See Keeler v. Superior Court (1970) Defendant beat his pregnant ex-wife to the point that she suffered a miscarriage. Defendant was charged with murder of the fetus. The Court held “[T]he Legislature did not intend such a meaning, and that for [the Court] to construe

the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.”

Court: “We hold that in adopting the definition of murder in Penal Code section 187, the Legislature intended to exclude from its reach the act of killing and unborn fetus.”

The Court looked at the context of the statutory language at the time it was enacted, which was approximately 1850.

Essentially, the court states that it is not empowered “to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings.”


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- The Rule of Lenity: The policy regarding the interpretation of criminal statutes is sometimes referred to as the rule of strict construction of criminal statutes or simply the rule of lenity.

- Lenity – simply means that in the presence of ambiguity, the benefit of the doubt goes to the defendant. 1. Common Law versus Statutes

a. Legitimacy �

b. Accessibility and Comprehensibility �

c. Prospective versus Retrospective Operation �

d. Balancing the Particular and the General � Common law rulings create a tension between doing justice to litigants in the instant

cases and doing justice to litigants in future cases. Legislatures, unlike courts, do not experience this tension, because they only craft general rules to be applied in future cases. Judges and courts, however, must use an instant case to craft a general rule for future adjudications.

� Often, particular, high profile cases, force legislators to act. In these instances, the current case is affecting a legislature’s decisions pertaining to forward-looking general rules.

e. Keeping Criminal Law Current � “legal fiction” is a device judges use to change the law without openly acknowledging the

fact they are doing so. � Often, the principle of stare decisis and a judge’s fidelity to that principle prove to be a

tremendous hurdle for changing law. f. Institutional Competence

� Because legislators have the advantage of time and additional information from hearings, committee meetings, etc. they are in a better position to craft more thoughtful law. However, simple because the legislature has the resources to create better law, does not necessarily mean they will utilizes such resources.

B. The Executive Branch

C. The Jury a. The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . .”

The Fourteenth Amendment made the Sixth Amendment provisions applicable to the individual states through the process of selective incorporation.

b. Rationale for a jury trial i. Providing the accused the right to trial by jury gives him an “inestimable safeguard

against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge” ~ Duncan v. Louisiana (1968)

c. Juries shape law in two important ways: i. They do so when required to apply vague ore ambiguous statutes. Ambiguity may

delegate power to a jury to shape criminal law by convicting or acquitting. ii. Juries may shape law through the power of jury nullification.


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d. Jury Nullification – Even when the jury finds all the requisite elements of a crime are present, that jury may still choose not to convict for any reason. The power of jury nullification is a de facto power, which is recognized by the courts. This power is unique, however, in that there is no right of a defendant to instruct the jury on its power of nullification. Defendant’s attorney is also prohibited from arguing for the right of jury nullification. See U.S. v. Dougherty (1972)

D. Statutory Interpretation Three Methods Interpreting Statutes Used by Judges.

1. Textualism – This approach uses only the statutory text to interpret the law. Justice Scalia is one of the most famous proponents of textualism, although he is not a strict textualist. The argument for textualism is that had the legislature wanted to provide meaning outside the confines of the text of a statute, such legislature would have enacted statutes to that effect. Essentially, the enacted version of a statute is the version the legislature intended.

2. Intentionalism – This approach uses the legislative intent to interpret the law. See Church of the Holy Trinity v. United States (1892) Church hires an English pastor, which is prohibited by an immigration statute. Court held that the spirit of the legislators intentions would not criminalize this sort of

practice. Therefore, although the text of the statute may hold he church liable, the intention of the statute would not. The conviction was reversed.

3. Dynamic Approach – This method seeks to craft laws based on contemporary circumstances and standards. Under this method, judges typically consider not only the constitutional text and its historical background, but also its subsequent interpretational history, related constitutional developments, and current societal facts.

E. Specificity See City of Chicago v. Morales (1999)

Chicago enacted an ordinance intended to combat gang activity. The Illinois Supreme Court strikes the ordinance down and the U.S. Supreme Court affirms. The Court held that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police “to meet constitutional standards for definiteness and clarity.” Essentially, the court was drawing a distinction between active notice and constructive notice.

The City of Chicago ordinance was “void for vagueness.” See United States v. Sattar (2003) Defendant was convicted of providing material support in the form of communication. The issue is whether the statute’s prohibitions were unconstitutionally vague. The Court held that both provisions are too vague to adequately provide notice to the defendants as

to what conduct may be construed as criminal, and, thus, the statutes are “void for vagueness.” The statute was too broad and made criminal what was not. Due Process Clause as it relates to Notice. Due process, a right granted by the Constitution and applicable to states via the 14th Amendment,

requires that defendants be given fair notice of criminal conduct. Vagueness versus Over-breadth Vagueness is ambiguity or lack of clarity, whereas over-breadth encompasses more than it should.


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Conduct (p. 165-207) A. The Elements of an Offense

a. Typically, some form of conduct is required for criminal liability. (Although there are many crimes outlined in later chapters, which are crimes of omission).

b. Actus reas is a Latin term used to describe the conduct element of a criminal statute.

B. Why Require Conduct? a. This question, along with the conduct requirement, is meant to contrast the punishment for sinful

thoughts with the punishment for actual acts. Consider the purposes of punishment: i. Retributive perspective – the perspective relies heavily on the concept of

blameworthiness. Therefore, from a retributive perspective, blame sufficient enough for criminal sanction attaches only when the person entertaining bad thoughts chooses to act on such thoughts.

ii. Deterrent perspective – the threat of punishment allows the potential offender to prevent their bad thought from becoming criminal actions.

iii. Incapacitation perspective – this perspective may tend to focus more on the criminal thought before it reaches actual conduct. A proponent of incapacitation would argue the necessity of incapacitating those with bad thoughts before such thoughts turn into criminal behavior.

b. Conduct ratifies what the intent actually was. When the intent is in question, the conduct will evidence one argument of the intent over another.

c. Conduct is required from a practical standpoint. Juries need conduct. A jury cannot convict or acquit on something it cannot see or interpret.

d. Conduct solidifies the line between criminal and not criminal. e. Conduct allows deterrence to work.

By making conduct criminal and not simply intent or thoughts, it allows the individual time to think about the consequences of acting on his thoughts, which is deterrence.

f. Conduct requirements prevent double jeopardy.

C. What is an Act? Different states define “act” in alternative ways. Model Penal Code § 1.13 (2) “act” or “action” means a bodily movement whether voluntary or involuntary; (5) “conduct” means an action or omission and its accompanying state of mind, or, where relevant, a

series of acts and omissions; (9) “element of an offense” means (i) such conduct or (ii) such attendant circumstances or (iii) such a

result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense; or (b) establishes the required kind of culpability; or (c) negatives an excuse or justification for such conduct; or (d) negatives a defense under the statute of limitations; or (e) establishes jurisdiction or venue; (10) “material element of an offense” means an element that does not relate exclusively to the statute

of limitations, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;


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D. Status a. Often, the courts struggle to distinguish between a person’s conduct and a person’s status. The

Supreme court addressed this issue and distinguished between conduct and status in two cases from the 1960’s.

b. See Robinson v. California (1962) – U.S. Supreme Court California statute makes it a criminal offense for a person to “be addicted to the use of narcotics.” The defendant was arrested after police officers discovered track marks indicating past narcotics use. The Court held that to criminalize a status without conduct violates the 8th Amendment.

c. See Powell v. Texas (1968) – U.S. Supreme Court The defendant was charged under a statute that criminalized being drunk in public. Defendant tried to liken his situation of being an alcoholic to the Powell case which prohibits the criminalization of a status without conduct. The Court held that the statute does not criminalize a status, but actually criminalizes one’s act of placing himself in public when they have voluntarily entered a temporary state.

E. Voluntariness a. See Martin v. State (1944)

Defendant was arrested in a private place (his home). The arresting officers carried the defendant into public. After defendant was carried into public, he manifests a boisterous condition. Defendant was convicted for manifesting indecent conduct while drunk in public. The court overturned the conviction, by stating: “Under the plain language of this statute, a voluntary appearance is presupposed. The rule has been declared, and we thing it sound, that an accusation of drunkenness is a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. Although the defendant chose to manifest boisterous behavior, he did not choose to be in public. This is different from the seemingly analogous situation of a person being arrested in private while naked and then taken into public where they were charged with indecent exposure, which makes the Martin case difficult.

F. Time-Framing a. A crucial question is that of the time frame, or time window necessary for assessing the

culpability of a criminal actor. The classic case addressing this problem is that of People v.

Decina (1956). The defendant was found liable for striking a group of young girls with his car, even though the defendant was suffering from a seizure in the moments before and at the moment of impact. The court ruled that did not knowingly steer his car towards the children, but he did knowingly operate his vehicle with the knowledge that he is prone to seizures and blackouts. In Decina, the Court opens the time-frame to a point that assesses the defendant’s culpability at the moment he chose to drive, not at the moment his car took a turn towards his victims.


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b. See People v. Decina (1956) Decina driving has seizure Decina’s car strikes 6 schoolgirls. Four of those girls died. Prosecution argued that because he was aware of his tendency to have seizures, he was being

culpably negligent for these deaths. Decina argues that he was driving perfectly fine, until he had a seizure. At the time he went into

his seizure, he had no control and was acting involuntarily. Court opens up time frame window and holds Decina culpably negligent for deciding to drive

when he was aware of his tendency and propensity for seizures. Appellate court does not rule on Decina’s guilt, but decided that the jury could find Decina guilty

based on these allegations. Holding of Decina case: The indictment should not be dismissed, because the jury could find

Decina culpably negligent due to his decision to drive given his propensity for seizures Important consideration: How wide can you open the time window to find culpability?

G. Omission a. Criminal liability may be imposed for a failure to act, rather than a direct action as is seen in other

forms of criminal proceedings. b. Legal Duty

See Jones v. United States

Defendant (Jones) agreed to care for Shirley Green’s young children. Based on a tip, the police rescue the infants, but they die soon after due to malnourishment. Jones appeals her conviction of manslaughter for failing to care for children on the grounds that

the jury needed to find a legal duty for her to care for children, an instruction they were not given.

The court held that the jury needed to be instructed as to the necessity for finding a legal duty. Since the jury was not given this instruction, the decision is reversed and the case remanded.

The Jones court specifies four ways to create a legal duty: 1. Where a statute imposes a duty to care for another 2. Where one stands in a certain status relationship to another 3. Where one has assumed a contractual duty to care for another 4. Where one has voluntarily assumed the care of another and so secluded the helpless

person as to prevent others from rendering aid. c. Distinguishing Act from Omission - The Model Penal Code § 2.01 (3) states that the “[l]iability 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.” - This duty may exist from a “status relationship” such as husband-wife or parent-child, as Jones

points out. - Generally, the prosecution will argue for an extension of duty which arises out of status

relationship, because often times, the necessary duty is not clearly defined.


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d. Duty to Report or Rescue - Recent legislative trends have attempted to criminalize acts of omission, not previously subject

to sanctions. For instance, California’s 2000 ‘Good Samaritan’ Bill came in response to a the killing of 7-year-old in a casino bathroom. David Cash failed to take any steps to intervene or “rescue” the 7-year-old from Cash’s friend. Cash, age 18, watched his friend, also 18, restrain the child in a bathroom stall and then left the two alone. Cash’s friend was charged with murder. Cash faced no charges.

- Eugene Volokh writes in “Duties to Rescue and the Anticooperative Effects of Law” that Samaritans come in five flavors:

i. The Good Samaritan ii. The Hopelessly Bad Samaritan

iii. The Legally Swayable Samaritan iv. The Delayed Samaritan v. The Passive Samaritan

H. POSSESSION Two types of Possession:

1. Actual 2. Constructive – Constructive possession is possession of an item that is not within the immediate

grasp of the individual. (E.g. a person can possess a house, even if they are not physically present at or near that house.)

The over-arching definition of possession is “the power to assume control or dominion over an item.” This definition expands the traditional notion of possession.

Problems with crimes of possession a. Possession is neither an act, nor a failure to act.

b. The objective in possession crimes is not to criminalize the mere possession, but rather to prevent the use of the prohibited item. For example, the drug possession is criminal, because the objective is to prevent drug use. The mere possession of drugs is not the actual use of drugs.

I. VICARIOUS LIABILITY Vicarious – the term is derived from the Latin word, “vicar,” which means the representative of another

person. Vicarious liability is the punishment of one person for the conduct of another. As opposed to strict liability, which dispenses with intent, vicarious liability dispenses with the act

requirement (meaning no act is required for a conviction in the presence of vicarious liability). Vicarious liability is most often demonstrated in employer-employee relationships.

Examples: See People v. Jackson (1989)

See State v. Beaudry (1985) See State v. Guminga (1986)


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Mental States (p. 209-321) A. INTRODUCTION 1. Functions of Mental States a. Distinguishing Criminal from Non-Criminal Conduct “[A] defendant’s mental state is closely tied to [an] intuitive sense of blameworthiness.

Therefore, from a retributive perspective, it makes sense to rely on mental state to indicate conduct that is blameworthy and should be criminally sanctioned.” (p. 211)

b. Grading Offenses Mental states may also be used as a means to establish the relative blameworthiness and

severity of punishment for crimes. I.e., purposeful crimes carry a greater culpability and punishment than do negligent crimes.

2. Sources of Difficulty a. Mental State Is a Question of Degree b. Multiple Mental States c. Mental State Is Relational 3. The Vocabulary of Mental States a. Model Penal Code Terminology The MPC created four primary mental states, defined with relative precision. The MPC

outlines these mental states in § 2.02(2) Kinds of Culpability as seen below:

§ 2.02(2) Kinds of Culpability (a) Purposely. A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious

object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of

such circumstances or he believes or hopes that they exist. (b) Knowingly. A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is

aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain

that his conduct will cause such a result. (c) Recklessly. A person acts recklessly with respect to a material element of an offense when he

consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

(d) Negligently. A person acts negligently with respect to a material element of an offense when he should be

aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.


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b. Traditional Terminology: Intent c. Subjective versus Objective One major difference between negligence and recklessness is that. . . - Recklessness is subjective, because it states that the person has to be conscious in their

disregard of a substantial and unjustifiable risk. - Negligence is objective because it asks what the person should have known. Even in the case of recklessness, what a defendant should have known can indicate what he

actually was aware of, i.e., an objective test of what he should have known can be used as evidence of what the defendant did, in fact, know.

4. The “Other Minds” Question

B. STRICT LIABILITY See United States v. Balint (1922) An indictment charged the defendants for unlawfully selling an opium derivative.

The defendants demurred to the indictment because it “failed to charge that they had sold the inhibited drugs knowing them to be such.”

The general rule is that the scienter (previous knowledge of a set of facts) requirement is necessary. The question before the court was whether or not the legislative intent was to make scienter

necessary. The Court held that the legislation’s “manifest purpose is to required evert person dealing in drugs to

ascertain at his peril whether that which he sells comes within the inhibition of the statute.” Essentially, the court held that the legislature did away with the scienter necessity and created a strict

liability crime. Strict liability crimes are said to be “public welfare” crimes, as opposed to common-law crimes such as

murder, rape, theft, etc. Strict liability crimes dispense with intent, i.e., intent is not a necessary element. Malum in se – Things that are wrong in and of themselves. E.g., murder, rape. Malum prohibitum – Things that are wrong because the law says they are wrong. E.g., speed limits,

impersonating Smokey The Bear, etc. See Morissette v. United States (1952) Defendant collected abandoned bomb casings from a tract of government land and sold them for

scrap metal. The government charged defendant with “willfully and knowingly” stealing government property. Court look at language of the statute to should that a certain mens rea is needed for a conviction. Court: If the statute is silent on mens rea, then the necessity for mens rea is implied. This is due to

the fact that there has traditionally been a relationship between an action and an intent. Court: This is a component of common law, and common law tradition brings intent with it.

C. RESOLVING STATUTORY AMBIGUITY


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D. MISTAKE OF FACT 1. Mistake as Evidence of Mental State ***Mistake of Fact is a legitimate Defense***

See People v. Rypinski (1990) Defendant was sure his rifle had one bullet in the chamber and two in the reserve. During the argument, Rypinski grabbed his rifle and ejected it three times, which should have

cleared all the rounds from weapon. As Rypinski walked towards Ulrich with a rifle he thought was unloaded, the rifle went off and

shot Ulrich in the left knee. Defendant appeals his conviction of reckless assault in the second degree on the grounds that the

court erroneously refused to charge that a mistake of fact is a defense to reckless assault. Court held that a defendant’s mistake of fact need not be reasonable in order to exculpate a

defendant of a crime requiring intentional or knowing action. Court ruled that a mistake of fact does negate the culpable mental state.

2. Reasonableness 3. Liability for “Lesser Legal Wrongs” E. MISTAKE OF LAW 1. The Law Defining the Charged Offense ***Mistake of Law is NOT a Defense***

a. The Conventional Position See United States v. Baker (1986) Defendant was convicted for trafficking in counterfeit goods. Defendant appeals his conviction claiming that knowledge of the criminality of the conduct

is an element of the offense and the jury should’ve been so instructed. Court held that there is a general rule that the criminal law does not require knowledge that

an act is illegal, wrong, or blameworthy. b. Special Cases i. Statutes Requiring Culpability Regarding Illegality The Ratzlaf case is important, because it outlines an exception to Mistake of Law. See Ratzlaf v. United States (1994)

After racking up over $100,000 in debt to a casino, Defendant tried to “structure” is repayment in several forms, all under $10,000.

The intent of the structuring was to avoid reporting requirements. Defendant did not know that structuring was illegal. To gain a conviction for “willful” conduct, as the statute requires, the Government must

prove that defendant was aware of the illegality of the structuring. The Court held: “to give effect to the statutory “willfulness” specification, the

Government had to prove [Defendant] knew the structuring he undertook was unlawful.”


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ii. Reliance on Official Interpretation The Cox case is important, because it outlines an exception to Mistake of Law.

See Cox v. Louisiana (1965) Defendant was arrested and convicted for protesting too close to a courthouse. Defendant appeals, because he asked a sheriff if his distance from the courthouse was

sufficient and the sheriff affirmed. The Court held that the Due Process Clause prohibits convicting an individual who

relies on an official for guidance. Such exceptions only apply to interpretations from an official, they do not apply to

misapplied legal advice from private counsel.

2. Mistake Regarding Circumstances the Include a Legal Element (Mixed Mistakes) See Regina v. Smith (David) (1973)

Defendant installs flooring and roofing materials in an apartment rented from another. When defendant’s lease ended, he damaged the flooring and roofing he installed. Defendant was charged with illegally damaging property belonging to another (the landlord). Court held that: “honest belief, whether justifiable or not, that the property is the defendant’s

own negatives the element of mens rea.” Therefore, the conviction is reversed.

F. MISTAKE OF LAW VERSUS MISTAKE OF FACT VERSUS MIXED MISTAKE To place in one of these three classifications, ask: Does my mistake negate mens rea? There is a distinction (tripartite) between Mistake of Law and Mistake of Fact

1. Pure Mistake of Law – Sure Loser 2. Pure Mistake of Fact – Mistakes of fact are defenses if they negate a necessary mens rea

component. This defense only applies if there is a mens rea component. For instance, strict liability crimes have no mens rea component, and therefore do not allow a mistake of fact defense. Example includes a person who drive’s off in another’s car, because the cars are similar and the same ignition key works.

3. Mistake of Mixed Law and Fact – Example of a stolen car sold to dealer. Dealer sells car. Original owner finds car and takes it back. Original owner charged for larceny. Original owner does not make a mistake of fact. Owner knows the larceny statute, so there is no mistake of law. This mistake affects the mens rea of the crime. This type of mistake will be an escape for the application of the law.

G. WILLFUL BLINDNESS Situation where one consciously or intentionally attempts to remain ignorant of the facts.

This is sometimes called the “ostrich instruction.” Individuals could be found guilty of a crime if they are found to be willfully blind to a particular fact or

set of facts. Both United States v. Jewell as well as the Model Penal Code § 2.02(7) provide away to establish what

a person should have known without direct evidence of such a knowing.


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H. CONDITIONAL PURPOSE/INTENT See Holloway v. United States (1999)

Statute states that Carjacking, “with the intent to cause death or serious bodily harm” is a federal crime.

Defendant in this case intended to carjack, but would have only inflicted bodily harm if there was resistance. Therefore he had a conditional intent.

Court held that both conditional and unconditional intents are covered by the statute.

I. INTOXICATION - Insanity versus Diminished Capacity.

Insanity is an affirmative defense that states that all the elements of the crime are present, but the insanity makes the defendant’s actions excusable.

Diminished capacity does not argue that the perpetrator’s actions are excused. Instead, diminished capacity is a claim that seeks to negate the mental state by stating that there is no presence of premeditation or deliberation.

- Involuntary Intoxication Involuntary Intoxication Examples:

a. Slipping a drug into someone’s drink. b. Accidentally taking the wrong prescription drug. c. Unknown susceptibility to alcohol.

Common law treat involuntary intoxication the same way as legal insanity. Essentially, the term “involuntary intoxication” can be substituted for “legal insanity” and the

result is the same within that particular jurisdiction. - Voluntary Intoxication

Voluntary intoxication is not a defense to a crime. However, voluntary intoxication is admissible to negate an element of the crime.

J. SPECIFIC AND GENERAL INTENT Things that are not intent.

- The voluntariness of an act is not intent, because voluntariness does not necessarily mean intent. - Automatism (reflexes, etc.) is not intent. These are involuntary actions, and are therefore

separate from intent (or intentional acts). - Legal insanity prevents intent. What would otherwise have been a crime, except that the

perpetrator is not responsible due to his mental illness defines the workings of legal insanity. - Amnesia is not intent. Amnesia after an event may make the perpetrator unable to assist his

counsel and is therefore prevented from being held accountable for his intent. - Motive is not intent. Intent relates to the instant criminal act, not the factors that made the

commission of the crime appealing to the perpetrator. Purposes of Intent:

- Separation of criminal from non-criminal - Grading of criminal conduct.

Problems of Intent: - Intent is beyond sensory perception, i.e., you cannot see intent, you cannot hear intent, etc.


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Two systems for addressing intent: 1. Common Law System

a. General intent (MPC does not use this term) – one’s choice to do a blameworthy act. This implies that one knows his conduct is against the law. The intent here does not apply to one’s knowledge of the law, but one’s intent applies to one’s knowledge of the facts, actions, etc. that make up the crime. Example: “I intend to do the conduct, or actus reas” The default mens rea is recklessness.

b. Specific intent (MPC does not use this term) – a particularized intent. Specific intent is explicitly-stated purposes of an individual’s actions. E.g., one who . . . with the intent to rob a busisness establishment. E.g., conspiracy is a crime that involves specific intent, because two or more individuals agree to commit a crime and actually manifest their specific intent. Example: this intent usually comes in the form of “. . .with the intent to. . .” injected into the statutory language.

2. Model Penal Code Approach (only applicable in states which have adopted MPC) a. Tries to unify the mental element by first requiring that something attach to each material

element. b. Attached four mental attitudes/states

(see four MPC mental states defined above) b. Applications

i. If no other mens rea applies, then “recklessly” applies. ii. If a mental state applies to one material element and the statute is mute on the other

material elements, then that same mental state shall apply to all other material elements. iii. Any higher mens rea suffices for a lower mens rea.

c. Level of risk-taking between recklessness and negligently of culpability is exactly the same. The difference between recklessness and negligence is the awareness of the actor’s conduct.

Mistake of Fact: Specific and General Intent Mistake of Law: Specific and General Intent Intoxication: Specific and General Intent K. MENS REA

Four Situations where there might be a constitutional inhibition for enforcing a Mens Rea case 1. Cox v. Louisiana – Due process defense stemming from a misleading interpretation by an

official. 2. Liability without fault - Vicarious liability and strict liability. Possibly involves violations of

Due Process by convicting of serious offense without mens rea. 3. Lambert v. California – Women in Los Angeles who violates ordinance that says that any felon

in LA who does not register with LAPD is in violation of the law. Ms. Lambert was unaware of the law, but prosecuted anyway. Under typical approach, this is a pure mistake of law. However, Supreme Court ruled that Ms. Lambert was a case of pure passivity, there was not such a way that she could have been properly notified, and this case involves a very low level of state interest. Therefore, this conviction is a violation of Due Process. Dissent correctly predicts this outcome will very rarely be repeated.

4. Smith v. California – Bookseller charged with selling an obscene book. Jury charged that the knowledge of the obscenity is a strict liability offense. The First Amendment comes to the rescue. Supreme Court ruled that making the owners responsible for every page in their bookstores would chill free speech and therefore struck down the law.


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Homicide (p. 323-473) A. Introduction

See chart which clearly outlines distinctions between the three (common law, statutory scheme, and Model Penal Code) approaches to homicide.

B. PURPOSEFUL KILLINGS Variance and Commonalities to the three approaches.

Universal Standards for Homicide: 1. Conduct that kills another is generally accepted as the definition of homicide. 2. Criminal homicide is separated between murder and manslaughter. 3. There is a distinction between the upper levels of murder with purpose and/or knowledge

requirements. 4. Jurisdictions tend to have two different levels of risk-taking (i.e. murder and manslaughter).

Variance among the approaches: 1. Murder is degreed (only in statutory schemes) 2. Definitions of premeditation and deliberation (to be construed as one concept). 3. There are various definitions and allowances for what constitutes adequate provocation. 4. The context in which felony murder fits varies.

Common Law

Common law defines murder as homicide committed with malice, whereas “malice” is a technical

term the evolved over time. Under a common law jurisdiction, there is no murder if there is no

malice, and there is no malice if there is no murder. Malice includes:

1. Intent to kill; 2. Intent to inflict serious bodily injury; 3. Acting with wantonness or an abandoned or malignant heart; or 4. Felony murder (defined below).

Premeditation and deliberation. There is no bright-line test for the necessary time of premeditation and deliberation, because tend

to sacrifice some logic in the interest of predictability. 1. Degrees of Murder 2. Premeditation and Deliberation 3. The Provocation Doctrine 4. Killings Under the Model Penal Code’s Extreme Mental or Emotional Disturbance Provision Model Penal Code § 210.3 (1985) Manslaughter

(1) Criminal homicide constitutes manslaughter when: . . . (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or 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 of the second degree.


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Commentary from the drafters of the MPC. - “The critical element in the Model Penal Code formulation is the clause requiring that

reasonableness be assessed ‘from the viewpoint of a person in the actor’s situation.’” - The ambiguity pertaining to the term “situation” is intentional. - “The Model Code endorses a formulation that affords sufficient flexibility to differentiate in

particular case between those special aspects of the actor’s situation that should be deemed material for purpose of grading and those that should be ignored. There thus will be room for interpretations of the word “situation,” and that is precisely the flexibility desired.”

- Essentially, the intentional ambiguity creates the desired goal of flexibility. Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation By: Robert B. Mison

� Mison wrote an article arguing against the idea that a homosexual advance is an insufficient provocation to kill.

� Mison’s argument is based on a case in which a defendant spent much of a night traveling around while his victim drove. At one point, the victim pulls his car over and the two proceed to the shadowy area of a school grounds. The victim exposes himself and makes a homosexual advance towards the defendant. The defendant beats the victim, takes his money, and leaves him to die. The defendant argued that “the victim’s homosexual overture provoked him to lose his self-control and kill.”

� In the example case, defense counsel is allowed to argue that a reasonable jury could find the victim’s homosexual advance sufficient provocation for the defendant’s acts. This led to the judge’s instruction on the lesser offense of voluntary manslaughter, a crime which the jury ultimately convicts the defendant.

� Mason’s message is “[t]he continued use and acceptance of this defense sends a message to juries and the public that if someone makes a homosexual overture, such an advance may be sufficient provocation to kill that person. This reinforces both the notions that gay men are to be afforded less respect than heterosexual men, and that revulsion and hostility are natural reactions to homosexual behavior.”

Passion’s Progress: Modern Law Reform and the Provocation Defense By: Victoria Nourse

A. Emotions and Reasons

• “Under conventional liberal theory, if extreme emotion is shown, these cases should be handled no differently from cases where victims kill their rapists and stalkers and batterers. The quantity or intensity of the emotion provides the excuse, not the reasons for the emotion.

• These theories focus on the emotion to the exclusion of reason, and nearly conclude that emotion obscures reason.

• However, as Nourse contends, modern thinking shows that “emotion relects or assists our reasoning processes.”

• Our interpretation of the provocation defense should include the understanding that “[n]o form of the defense excuses, even partially, based on emotion alone.”

• “[R]easonable men and women may well possess emotion that the law needs to protect.”


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C. RECKLESS KILLINGS 1. Reckless Murder

- The common law treated this sort of extreme recklessness as a type of “implied malice” and used a collection of colorful verbiage in referring to it, such as “abandoned and malignant heart.” United States v. Fleming (1984) [See case brief] Fleming was a case in which prosecutors sought and courts upheld a murder conviction in cases of

non-purposeful killings by intoxicated drivers. Berry v. Superior Court (1989) [See case brief]

3. The Model Penal Code Approach to Reckless Murder

F. NEGLIGENT KILLING As a general rule, the negligence required in cases of criminal homicide is greater than the usually definition of homicide as in other areas of the law. “Gross Negligence” is the necessary threshold for convictions of negligent killing. [See State v. Williams (1971)] 1. The Model Penal Code Approach to Negligent Killing

§ 210.4 Negligent Homicide (1) Criminal homicide constitutes negligent homicide when it is committed negligently. (2) Negligent homicide is a felony of the third degree.

G. FELONY MURDER

The felony-murder doctrine holds a felon and her accomplices liable for murder when a killing is committed in the perpetration of or attempt to perpetrate a felony. Common Law Approach to Felony Murder: the original common law doctrine was extremely broad.

However, over time, courts and legislatures contracted the doctrine. IMPORTANT: The intent to cause the felony is presumed as the intent to cause the homicide.

1. The Basic Rule

See State v. Sims (1978) Defendant attempted to burglarize the home of Oscar Schmidt. Defendant carried a 20-gauge sawed-off shotgun. Oscar Schmidt grabs his pistol and fires at Defendant. The bullet struck Sims’ right arm, causing an involuntary muscle spasm, which caused his trigger

finger to squeeze the trigger. Defendant’s shotgun discharged, killing Walter Schmidt. Question: “whether our felony-murder rule, which by statute makes the crime first degree murder,

admits any amelioration from first degree by virtue of the fact that the homicide was accidental.” In this case, the defendant contends that felony-murder warrants the conclusion that malice is an

element of the crime and an accidental homicide committed during one of the designated felonies will not invoke the felony-murder rule.

The Court responds by citing precedent holding that the felony-murder crime historically did not require malice, premeditation or deliberate intent to kill as an element of proof.


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See People v. Aaron (1980) Consistent with the history of the felony-murder doctrine, the Supreme Court of Michigan narrowly defined the felony-murder doctrine in its 1980 People v. Aaron ruling. Court: “We do not believe the felony-murder doctrine, as some courts and commentators would suggest, abolishes the requirement of malice, nor do we believe that it equates the mens rea of the felony with the mens rea required for a non-felony murder. We construe the felony-murder doctrine as providing a separate definition of malice, thereby establishing a fourth category of murder. The effect of the doctrine is to recognize the intent to commit the underlying felony, in itself, as a sufficient mens rea for murder. This analysis of the felony-murder doctrine is consistent with the historical development of the doctrine.”

2. The Model Penal Code and Felony Murder

Model Penal Code § 210.2 (1985) Murder (1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

The MPC approach to felony murder incorporates a presumption that an individual committing or attempting to commit the listed felonies manifests extreme indifference.

This indifference is considered a mental state that qualifies for murder.

3. Limitations on the Felony-Murder Rule a. Enumeration

Legislatures can and have limited the scope of the felony-murder rule by enumerating those felonies which can support a felony-murder conviction.

b. Inherently Dangerous Felony Courts use the inherently dangerous felony rule to limit the types of felonies on which the prosecution can base a charge of felony murder. [See People v. Sanchez (2001)]

c. The Merger Doctrine - Courts use the merger doctrine to limit the types of felonies upon which the prosecution

can base a felony-murder charge. If a felony “merges” with a homicide, that means it cannot support a felony murder charge. In other words, a felony must be independent of the homicide in order to support a felony-murder charge. I.e., a felony that “merges” with a homicide is not considered “independent” of that homicide.

- If every felony that causes a death is felony murder, then manslaughter would disappear. Consequently, if every felony merges, then there would be no felony murder.

- See Barnett v. State (2000) A fight breaks out and Defendant assaults victim and victim dies of his injuries. Defendant was convicted of felony murder, because he was engaged in a felony (assault)

and in through the conduct of which led to a death. Court ruled that this assault merged with the death and therefore felony murder would not

apply.


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d. Agency or “In Furtherance” Agency limitations do not focus on the type of felony. The Agency or “In Furtherance” limitation narrows felony murder by restricting the circumstances under which a felon can be held liable for felony murder. Typically shooting deaths. The analysis tends to focus on two issues: (1) was the shooter a felon? (2) was the victim a felon? [See Weick v. State (1980)] [See also State v. Oimen (1994)]

e. Res Gestae Limits

The res gestae restriction analyses how closely tied the killing is to the felony. Courts examine the (1) time that transpired between the felony and the death, the (2) distance between the place of the felony and the place of the death, and the (3) strength of the causal connection between the felony and the death. [See State v. Adams (1936)]

H. THE PROVOCATIVE ACT DOCTRINE

Common Law Provocation is not a defense to a homicide crime. Instead, Provocation is introduced to grade the crime

but it does not exculpate the crime. Provocation may only mitigate murder into manslaughter. This is accomplished through a legal fiction,

in which the existence of adequate provocation negates the malice. Through arguing provocation, the defendant is saying that his judgment was clouded sufficiently to negate the malice, not excusing the actions.

Limits to Provocations - Words alone are insufficient to constitute the requisite provocation for a mitigation of murder to

manslaughter. This applies to epithets versus informational words (informational words = “I just killed your family; epithets = “you sonofabitch!”)

- A court may keep a jury from hearing about those forms of provocation which are insufficient. - Subjective test: The defendant must have been in a subjective state of rage. - Objective test: The defendant must have faced circumstances that put him in a position far beyond

normal provocation. - In order for Provocation to apply, the defendant must not have had adequate time to “cool off.” Who is the reasonable person in the objective test?

See Bedder v. Director of Public Prosecutions Defendant was jeered by a prostitute when he was unable to perform and killed her. Defendant argued that murder should be mitigated to manslaughter, because he was provoked. Court ruled that you cannot endow the “reasonable person” with the peculiarities of the

defendant, in this case, impotence. The fallacy of the Bedder decision is that you have to endow the reasonable person with the

peculiarities of the defendant in order to assess the person’s culpability. You must endow a reasonable person with those things that are relevant to the provocation. However, as Bedder suggests, you cannot endow the reasonable person with peculiarities irrelevant or otherwise counter to the idea of a reasonable person.


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Model Penal Code MPC § 210.3 addresses provocation: “The reasonableness of such explanation or excuse shall be determined from the view point of a

person in the actor’s situation under circumstances as he believes them to be.”

Unlike common law, the MPC provides a wholly subjective test of the defendant’s provocation. Other Differences:

- In MPC, there is no “cooling off” period, whereas common law allows for it. - The court has difficulty assessing the time sufficient in MPC jurisdictions. - MPC has a words-only exclusion. - MPC has no suggestions that the victim has caused the distress. In common law, the

provocation defense is only available when the provoker is attacked. - The MPC is an affirmative defense, because it does not negate a single element of the crime.

When the Provocation Doctrine encounters the Felony Murder Doctrine: In the event that a homicide occurs which is in opposition to, not in furtherance of, a felony the provocative act doctrine sets out three criteria which must be established by the prosecutor in order to hold a defendant liable under the felony-murder rule. These criteria are:

1. Prosecutor must prove that the felon(s) harbored malice aforethought. 2. Prosecutor must prove that the killing was attributable to the act of the defendant or his

accomplice. 3. The now-established murder was committed during one of the felonies enumerated in the first-

degree murder statute.

I. MISDEMEANOR MANSLAUGHTER

If the prosecutor proves that the defendant caused a death as a result of committing or attempting to commit a misdemeanor, the defendant may be liable for misdemeanor manslaughter. Under the misdemeanor manslaughter provision, the prosecutor need not prove a mental state beyond that required for the misdemeanor. Historically, courts have narrowed the misdemeanor manslaughter doctrine through imposition of various limitations. (Much like the courts have limited the felony-murder doctrine). [See United States v. Walker (1977)]

J. CAPITAL PUNISHMENT: CONSTITUTIONAL DIMENSIONS

Three Phases 1. Traditional – The U.S. is a death penalty country. 2. Degrees – Tennessee statute and others apply to degrees to murder. The idea is to calibrate

culpability for the various types of murders. Another goal was to avoid jury nullification. As time passed, jury discretion was created when applying the death penalty. The criticism of jury discretion is that juries have no experience with the death penalty. Another criticism is the mitigating or aggravating factors were not introduced during the one-step trial process. There was no pattern of how the death penalty was applied. This phase ends in 1972 with Furman v. Georgia.

Reactions to Furman v. Georgia (1972) –

1. The death penalty is no longer. The court abolished it abosolutely. 2. There exists the possibility that taking the discretion out of the application of the death

penalty would make the death penalty constitutional. 3. Courts only said that guidelines must exist. This view won. This is considered a channeled

discretion view.


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3. Contemporary Phase

- 80 of 180 countries have abolished the death penalty since WWII. - The United States is the only industrialized nation that employs the death penalty. - The Catholic Church has come down vehemently against the death penalty. What does a

Catholic judge do if he/she sits in a death penalty jurisdiction? - The principle in Aprendi is applies to the death penalty. I.e. a jury, not a judge, must find matters

of fact that would invoke the death penalty. Noteworthy Cases:

Lockett v. Ohio

A defendant must be able to introduce any factor of mitigation he or she chooses. Kelley v. South Carolina

Public concept of parole was leading the jury towards the death penalty. Therefore, states have enacted life without parole possibilities. This case addressed the issue of whether or not a prosecutor could scare the jury into thinking that a lesser conviction leaves open the possibility that the defendant could be released.

Baze v. Rees (April 2008)

Lethal injection is upheld as not being unconstitutional.

Certain classes are protected from the death penalty. This is due to diminished culpability. - The mentally retarded (Atkins v. Virginia) - Insane - Juveniles (Ropper v. Simmons)

Victim Impact statement are constitutional. Unless life was being taken, the death penalty is an inappropriate punishment.

- Concept was tested in Coker. (rape of an adult woman, yet left open possibility of child rape). - Concept was again tested as it relates to the rape of a child. In Kennedy v. Louisiana (2008),

even child rape is not punishable by death. Court also said that applying the death penalty to this crime removes the incentive for keeping the victim alive.

Where life-taking is present, how much must one’s involvement extent for the death penalty applied? - Court held that the accomplice could not be subject to the death penalty. - However, Tyson ruled that if there was an extreme indifference to human life, and one was a

major player in the murder, then the death penalty could apply. Discretion still plays a large role in the application of the death penalty.

- Is this a concern? - Should this be a concern?

Other Aspects - Death penalty criminal process is actually more expensive that life imprisonment cases, due to

the expenses of the mandatory appeals and trial costs. - Does the death penalty deter? Does it deter more than life imprison? Consider the

Retribution - How is blame assessed? - How much is one individual’s experience addressed in relation to anothers?

Obviously incapacitation works. Discrimination.

The McClesky case asks if the defendant or the black community gets the benefit of the doubt pertaining to the discrimination aspect.


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Human Dignity Concerns. Can we justify taking a human life, even for the purpose of order in society?

Why do we have the death penalty? Is the argument that one life saves two persuasive?

Trends Number of death penalties is declining.

Causation (p. 475-96) A. INTRODUCTION

When a crime requires a result, the prosecution must prove not only that the result occurred (such as a death in a murder homicide crime) but also that the defendant’s conduct caused that result. By contrast, crimes without a result element do not require proof of causation.

B. CAUSE IN FACT – The “but for” cause

Cause in fact refers to the factual cause of a result. Such a cause is derived through the “but for” standard, which asks, “Had it not been for the defendant’s actions, would the result have occurred?” If the result would not have occurred but for the defendant’s act, then cause in fact is fulfilled. 1. There are occasional cases in which the unmodified version state above fails to produce a

satisfactory or just result. In such circumstances, the law can modify the “but for” test by adding additional language – for example, without the defendant’s act, the death would not have occurred “as it did” or “when it did.”

2. Instead of the modified standard test, courts employ an alternative test. This test is one that holds each act (in the case of multiple acts each of which could have independently caused the result) sufficient if it was a “substantial factor” in bringing about the result.

3. Cause in fact is a necessary yet insufficient condition for criminal liability. Many acts fulfill the test for cause in fact even though they do not warrant criminal punishment. (Ex. A gas station owner hires a clerk, who is shot and killed in a robbery. The clerk would not have been killed but for the gas station owner’s decision to hire the clerk, but no criminal punishment is warranted.)

C. PROXIMATE CAUSE Proximate cause is also known as legal cause or cause in law. Phrases associated with proximate cause include:

The result must occur “in a natural and continuous sequence,” though causation is “not limited to the immediate or most obvious result.” The defendant is “responsible for the natural and foreseeable consequences that follow, in the ordinary course of events, from the act.”

1. Generally, the higher probability that a result will follow from the defendant’s act, the greater the likelihood that the defendant’s act will be found to have proximately caused that result.

2. The most frequently invoked test for determining proximate cause is the probability issue in terms of foreseeability.

a. A defendant is usually held to have proximately caused a foreseeable result. b. A defendant is usually held not to have proximately caused an unforeseeable result.

3. A subsequent actor sometimes insulates a prior actor from criminal liability. The second actor is often referred to as an “intervening cause,” who may “break the causal chain” between the first actor and the result. If the causal chain is broken between the first actor and the result, the first actor will not be found to have proximately caused the result.

a. Causal Chain Example: A wishes to kill C. A disquises a bomb as a toy, wraps it in a package, and sends it to C

using a courier, B. B, who works for the courier service and is paid by A to deliver the package,


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is unaware of A’s plan and the content of the package. B delivers the package to C, who opens it and is killed.

In this example, B’s conduct did in fact play a role in bringing about C’s death. However, because B had an innocent mental state and not blame in relation to C’s death, B’s act will not relieve A of liability.

B’s conduct does not break the causal chain between A’s conduct and C’s death. 4. Proximate Cause versus Cause in Fact.

a. In contrast to the inquiry underlying cause in fact (factual in nature) the proximate cause inquiry asks the jury to assess blame and responsibility. While cause in fact is concerned with finding out what happened, proximate cause is concerned with determining who should be held responsible for what happened.

[See State v. Jenkins (1981)] [See People v. Flenon (1972)] [See State v. Echols (1995)] See People v. Kibbe, 35 N.Y.2d 407 (1974)***

Defendants robbed the victim and forced the drunk victim out of their car without his clothes on a cold, winter night.

The visibility was bad due to blowing snow. A truck struck the victim and killed him. Court held that the defendant’s actions must be a sufficiently direct cause of the ensuing death before

there can be any criminal liability. Court found that defendant’s actions were a sufficiently direct cause of death and affirmed the

conviction. See Commonwealth v. Root, 170 A.2d 310 (1961)***

Defendant and victim engage in an illegal street race. Question: whether the defendant’s unlawful and reckless conduct was a sufficiently direct cause of

the death to warrant his being charged with criminal homicide. Court rules that the tort concept of proximate cause has no proper place in prosecutions for criminal

homicide. I.e., a more direct causal relationship is required for conviction. In the instant case, Defendant’s reckless conduct was not a sufficiently direct cause of the other

driver’s death to make him criminally liable. Conviction is reversed. In this case, a superseding cause (the other truck) directly cause the decedent’s death.

D. THE MODEL PENAL CODE AND CAUSATION

Model Penal Code § 2.03 – Causal Relationship Between Conduct and Result; Divergence Between

Result Designed or Contemplated and Actual Result or Between Probable and Actual Result

(1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.

(2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:

(a) the actual result differs from that designed or contemplated, as the case may be, only in respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or


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(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense.

(3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or in the case of negligence, of which he should be aware unless:

(a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive that that caused; or

(b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense.

(4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor’s conduct.

- The Model Penal Code requires a cause-in fact. - The Model Penal Code uses the “but for” test when assessing causation. - Whereas common law allows the court to find issues of causality as a matter of law, the Model Penal

Code allows the trier of fact (usually a jury) more ability to determine cause.

Justifications and Excuses (p. 497-578) A. INTRODUCTION

1. Justifiable = The actor took the correct action. 2. Excuse = the actor took the wrong actions, but her status alleviates her culpability. (Insanity is one

such example.)

B. SELF-DEFENSE AND DEFENSE OF OTHERS 1. The Goetz Case

Defendant was on a subway in NYC when one of four teens approached him and said, “Give me five dollars.” Defendant responded by standing up, pulling out his handgun and firing four shots in rapid succession.

Victims admitted that they planned to rob the defendant. Defendant had been previously robbed. This case illustrates the tension between objective and subjective approach to self-defense. The question is whether the jurors should have used a reasonable person standard, or determined if

the defendant, himself, “reasonably believed” he was acting in self-defense. The court in Goetz ruled that the tradition upholds an objective test and that the prosecutor was

correct in instructing the jury to consider whether a reasonable person believed self-defense was necessary and not whether the defendant personally, reasonably believed self-defense was necessary.

Three possibilities the law may seize upon in self-defense: 1. Actual danger must be present; 2. Belief of danger must be present; or 3. Reasonable belief of danger must be present (most prominent as in Goetz case).


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2. Self-Defense and Domestic Violence See State v. Norman, 324 N.C. 253 (1989). Court held that a constant state of fear as a result of battered wife syndrome does not put Defendant

in a position of imminent threat. The threat has to be reasonable and imminent for self-defense to apply.

3. Retreat - Traditionally, there is a split between eastern and western states with regard to retreat. - Usually, retreat issues arise with deadly force. - Even states where retreat is required do not mandate that a person retreat from their own home. - If there is a retreat rule, is there an anticipatory retreat rule?

For example, a person gives you an ultimatum that says that he will kill you if you return. You leave, get a gun, and return. Anticipatory retreat rules often say that if one has a purpose to provoke, then the defense is unavailable.

4. Initial Aggressor Rules

5. Model Penal Code Treatment of Self-Defense

- MPC only states that if the individual believes danger exists, then self-defense is available. - Again, the MPC applies a subjective test. - However, the second component states that if one is reckless or negligent in assessing the

situation, then that person can be guilty for crimes stemming from that recklessness or negligence.

C. NECESSITY

See Queen v. Dudley and Stevens Necessity does not justify the taking of innocent life in any circumstance. Model Penal Code § 3.02 (1985) – Justification Generally: Choice of Evils

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable, provided that: a. The harm or evil sought to be avoided by such conduct is greater than that sought to be

prevented by the law defining the offense charged; and b. Neither the Code nor other law defining the offense provides exceptions or defenses dealing

with the specific situation involved; and c. A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

D. DURESS - Under MPC, duress is a defense. - In the presence of duress, the MPC allows one to chose the lesser of two evils.

- Because courts and legislators have usually treated duress as an excuse rather than a justification, they often place a burden on the defense to raise a reasonable doubt, to produce evidence, or to prove duress by a preponderance of evidence.

- Duress and necessity share a number of characteristics. Consequently, some jurisdictions treat them as overlapping defenses, whereas other jurisdictions consider them distinct.


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E. INSANITY AND MENTAL ILLNESS

Attempt and Solicitation (p. 663-712)

A. INTRODUCTION Attempt crimes are anticipatory offenses, meaning that it is a crime which is committed in anticipation

of another crime, the “target offense.” 1. Anticipatory crimes, such as attempt, are examples of “inchoate” or incomplete crimes. This term

indicates that the crime is in an initial or early stage. 2. Legislatures and courts vary greatly in regard to the conduct required for attempt. Some allow early

steps in a course of conduct aimed at committing a target offense to trigger attempt liability. Other jurisdiction require that a person be “dangerously close” to the accomplishment of the target offense, in order to be liable for attempt.

Attempt crimes fall in to one of three classifications. 1. Those who fail to complete the target offense. 2. Those who were interrupted before they could complete the target offense. 3. Impossibility cases.

Definition of Attempt:

1. Intent (specific) – very different from attempt 2. Conduct tending toward the crime

a. Preparation versus perpetration. 3. Failure to complete the crime

a. Potential problems with the failure component: i. Ex. Larcency at common law is the taking and carrying away of another’s personal

property. The problem may be a problem of proof. Witness discrepancy may lead to the difficulty of distinguishing failure from success.

ii. Ex. Rape – the prosecutor may have to prove beyond a reasonable doubt that there was sexual penetration for rape, or there was a failure of penetration for attempted rape. If they cannot prove one or the other, the crime falls between the gap.

B. CONDUCT

See People v. Rizzo (1927) Defendants planned to rob a payroll employee as he exited a bank. Defendant drove to the bank, but the intended victim or any other payroll employee were inside the

bank at that time. Defendants intended to rob a payroll employee, but such intended victim was not pointed out at the

time of the arrest. Court held that this was an act of preparation too remote to constitute a crime of attempt.

Objectivist versus Subjectivist Rules: Objectivist – this approach places emphasis on objectively manifest conduct towards a crime. Subjectivist – this approach argues that if the intent is shown, there should be a lower barrier to show

attempt. The Model Penal Code is mostly subjective and uses the term “strongly corroborative” of the criminal

purpose when describing the barrier for assessing conduct in an attempt crime. Common law attempt crimes have higher mens reas than their completed crimes, because attempt crimes

necessarily require intent.


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See McQuirter v. State (1953) This case shows the difficulty of illustrating where the problem of proof lies. Court sustained a conviction of an African American man for an attempt to assault with intent to

rape. This is an inchoate crime layered on an inchoate crime.

C. MENTAL STATE Model Penal Code § 5.01 – Criminal Attempt (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of

culpability otherwise required for the commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were

as he believes them to be; or (b) when causing the particular result is an element of the crime, does or omits to do anything with

the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission or the crime.

See South Dakota v. Lyerla (1988) Defendant fires three shots at a passing truck, injuring one passenger and injuring the other two. Court reversed the attempted murder convictions, but affirmed the murder conviction. Court found that to attempt second degree murder, one must intent to have a criminally reckless state

of mind, i.e. perpetrating an imminently dangerous act while evincing a depraved ming, . . . but without a design to kill an particular person.

This is a logical impossibility.

See Montana v. Hembd (1982) Defendant was charged with attempted misdemeanor negligent arson and attempted felony negligent

arson. Court found that these crimes are nonexistent. It is impossible to show one purposely was negligent.

Mental State Regarding a Circumstance

Typically, purpose as to a required result is needed for an attempt conviction even if a lower mental state as to that result suffices for conviction of the target offense. The law of attempt effectively raises the lower mental states regarding results in a target offense to the level of purpose for attempt of such target offense. b. Comments on Model Penal Code § 5.01

1. The requirement of purpose extends to the conduct of the actor and to the results that his conduct causes, but his purpose need not encompass all of the circumstances included in the formal definition of the substantive offense. As to them, it is sufficient that he acts with the culpability that is required for commission of the completed crime.

2. Under the MPC formulation, in a statutory rape example, the actor must have a purpose to engage in sexual intercourse with a female in order to be charged with the attempt, and must engage in a substantial step in a course of conduct planned to culminate in his commission of that act. With respect to the age of the victim, however, it is sufficient if he acts, “with the kind of culpability otherwise required for the commission of the crime,” which in the case supposed is none at all. Since, therefore, mistake as to age is irrelevant with respect to the substantive offense, it is likewise irrelevant with respect to the attempt.


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D. ABANDONMENT

See People v. Staples (1970) Defendant rents an apartment above a bank with the intent to commit bank robbery. Defendant began drilling into the floor and covering his progress with a rug. Before Defendant could complete the breach into the bank, he decided that he was not ready to

pursue a life as a bank robber. Defendant halted his progress. Police arrest defendant upon discovery of the drilling. Court found that the defendant’s conduct went beyond preparation and were sufficient enough to

constitute an attempt. Once an attempt has been made, there can be no exculpatory abandonment.

The conviction is affirmed.

Model Penal Code § 5.01 (4) Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt

under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is not motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increases the probability of detection or apprehension or that make more difficult that accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

E. IMPOSSIBILITY

1. Factual Impossibility Factual Impossibility occurs “when extraneous circumstances unknown to the actor or beyond the

actor’s control prevent consummation of the intended crime.” This means that factual impossibility is not a defense to attempt.

2. Legal Impossibility – Legal impossibility comes in two very different varieties, between which the

courts have not distinguished. a. A person commits or attempts to commit what s/he believes is a crime, but in reality it does

not qualify as a crime under the law. Ex. Jenny is from a country that criminalizes the keeping of animals not intended for food. Now in the U.S., Jenny takes in a stray dog and cares for it, all while under the impression that she is violating a law. It would be a legal impossibility for Jenny to have committed a crime.

b. The second type of impossibility exists if the actor’s goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of some attendant circumstance that constitutes an element of the charged offense.

Ex. The Jaffe case. This defendant received stolen merchandise from a dry goods store. An employee of a dry goods supplier would steal the merchandise and sent it to the defendant. After the employee was caught, the police set up a sting operation with the store owner. The defendant attempted to receive the merchandise he believed to be stolen.


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Defendant was mistaken that the property was stolen, because, in fact, it had been returned to the owner and was being used with the owner’s permission in the “sting” and therefore, had lost its legal quality of being stolen. In this case, the New York Court of Appeals reversed defendant’s conviction for attempt to receive stolen property.

The modern trend is to treat similar impossibility situations as a form of factual impossibility and subject to the same rule.

c. Factual or legal impossibility of committing a crime is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be. Under the modern approach, the defendant in the Jaffe case would have been convicted.

See People v. Dlugash (1977) Bush shoots victim in the chest and victim falls to the ground. Minutes later, Defendant shoots victim in the face and chest several times. It is unclear whether the

victim was dead at the time Defendant fired shots into victim. The jury found that Defendant believed the victim to be alive when he shot victim. Therefore, Court

affirmed the conviction because the murder would have been convicted ‘had the attendant circumstances been as [defendant] believed them to be.’

Example: Dlugash’s Beliefs versus Historical Fact: 1. Believes victim is dead, victim is actually dead – No Murder, No Attempt. 2. Believes victim is deat, victim is alive – Murder

3. Believes victim is alive, victim is dead – No Murder, Attempted Murder under MPC, No Attempted Murder under common law (Jaffee).

4. Believes victim is alive, victim is alive – Murder 5. Doesn’t know if victim is alive, victim is dead – No murder, No attempt. 6. Doesn’t know if victim is alive, victim is alive – Murder due to wantonness.

MISTAKE IMPOSSIBILITY

Mistake of Pure Law – Conviction Pure Law – example: Someone thinks she cannot care for an animal, but she legally can and does. – Acquittal

Mistake of Pure Fact – If it negates the necessary mens rea, then it acquits.

Pure Fact – Convicts

Hybrid Law/Fact Mistake – Common law convicts, whereas the MPC acquits due to a negation of an element.

Hybrid – example: Jaffee receiving stolen property. Common law would acquit, whereas the MPC would convict.

Under Mens Rea Mistakes, the mistakes were ones that would make the defendant’s actions legal,

whereas their conduct was actually illegal. The situation turns out worse from the law’s perspective than the defendants thought.

Under Impossibility Mistakes, the mistakes were ones that would make the defendant’s actions illegal, whereas their conduct was actually legal. The situation turns out better from the law’s perspective than the defendants thought.


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2. Inherent Impossibility – this form of impossibility involves cases in which the means chosen by the actor are manifestly unlikely to achieve the ends sought.

a. These cases rarely make it to the appellate level and therefore, there is little case law on the subject.

b. Although a substantial step with the requisite mental state may have been made toward the target offense, some statutes alleviate an actor’s liability due to the inclusion of such caveats like, “unless such impossibility would have clearly been evident to a person of normal understanding.”

c. However, some statutes, like Indiana’s code, state that “[i]t is no defense, that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime charged.”

3. The Model Penal Code Approach to Impossibility Model Penal Code § 5.01 Criminal Attempt (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be. . . .

a. The drafters of the MPC intended and succeeded to create a statute that rejects the defense of

impossibility, which has sometimes been successful in attempt prosecutions. This is accomplished by providing that a defendant’s conduct should be measured according to the circumstances as he believes them to be, rather than the circumstances as they may have existed in fact.

F. SOLICITATION - Solicitation, much like attempt, is an anticipatory crime. Historically, it required an effort by one

person to persuade another person to commit a felony. In the modern view, solicitation may also embrace misdemeanors as possible target crimes. Successful solicitors usually qualify as accomplices.

- Freedom of Speech ends and Solicitation begins where there is an identifiable group being asked to commit an illegal act.

- Solicitation requires a clear and present danger. 1. Conduct

[See People v. Quentin (1968)] [See State v. Davis (1980)]

2. Mental State 3. Renunciation

Renunciation is a defense to solicitation. 4. Innocent Agents

[See State v. Bush (1981)]


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Complicity (p. 713-48) A. INTRODUCTION

1. Complicity, or accomplice liability, is a doctrine stating that those who assist or encourage another to commit a crime may be held liable for that crime even though they did not themselves perform the act specified in the statute defining the crime.

2. Such liability is sometimes known as “derivative” liability because the accomplice’s liability derives from that of the person who engages in the prohibited conduct (the principal).

3. Complicity is not an independent crime but a way of sharing liability for a crime. 4. Accomplices are typically blameworthy and so deserving of punishment from a retributive

perspective. 5. The common law recognizes principals in the first and second degrees as well as accessories before

and after the fact. However, the categories of accessories before the fact and principals in the second degree have mostly gone by the wayside. Currently, actors who would have formerly been placed in those categories are simply considered accomplices and treated with the same liability as the principals.

6. Although complicity is not an independent crime, the criminal liability as an accomplice can be assessed independently of the principal’s criminal liability. As such, one may be convicted as an accomplice, while the principal of the same target offense may be acquitted.

Four Types of Actors 1. Principal (first degree) – This individual is the immediate perpetrator of the crime. 2. Principal (second degree) – This includes anyone who is present (whether actively or

constructively) who aids and abets the crime. 3. Accessory before the fact – This may include an solicitor of the crime who initiates such criminal

conduct. 4. Accessory after the fact – This individual may not have wanted the crime to occur but assists

after the commission of the crime. This individual’s culpability is treated differently than that of the first three types of actors.

B. CONDUCT

1. Presence See State v. V.T. (2000)

Presence itself does not make one guilty of a crime as an accomplice. Simply watching a crime does not make one an accomplice. However, presence can make a person an accomplice, if such presence is pre-arranged.

2. Omissions

See State v. Walden (1982) Because there was a duty, omission could be coupled with that duty to mean that a defendant was an accomplice. (applicable to security guards, police, etc.)

3. The Model Penal Code Approach to Conduct for Complicity Model Penal Code § 2.06 (1985) Liability for Conduct of Another; Complicity

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

(2) A person is legally accountable for the conduct of another person when: . . . (c) he is an accomplice of such other person in the commission of an offense.

(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, or


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(ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii)having a legal duty to prevent the commission of the offense, fails to make proper effort

so to do; or (b) his conduct is expressly declared by law to establish his complicity.

C. MENTAL STATES See People v. Beeman (1984)

Defendant provided information to two other individuals who used such information commission a robbery of Defendant’s relative.

California Supreme Court ruled that proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing or encouraging commission of the offense is required for a conviction as an accomplice.

Essentially, the California Supreme Court heightened the requisite mens rea for an accomplice.

1. Liability for Crimes of Recklessness and Negligence See Washington v. Hopkins (1928)

2. The Model Penal Code Approach to Mental States in Complicity Model Penal Code § 2.06 (1985) Liability for Conduct of Another; Complicity (3) A person is an accomplice of another person in the commission of the offense if:

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

so to do; or (b) his conduct is expressly declared by law to establish his complicity.

(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

See People v. Flayhart (1988) Defendants’ brother was mentally handicapped and defendants had a duty to care for him. Court affirmed their conviction for criminally negligent homicide. Court held that the omission of their duty was criminally negligent. Neither of these individuals were the principal, but the aided and abetted each other, making them

both accomplices.

3. Abandonment and Other Limiting Principals Model Penal Code § 2.06 (1985) Liability for Conduct of Another; Complicity (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an

accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and

(i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort

to prevent the commission of the offense.


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D. SPECIAL ISSUES 1. Conviction of the Principal

Standefer case Allegation: Government official took several bribes from Standefer (defendant). The official was acquitted of accepting bribes. Standefer argues that he could not be convicted of bribery, if the acceptee was acquitted. Standefer

was relying on the doctrine of non-mutual collateral estoppel. Court disagrees. The acquittal of the principal does not preclude the prosecution of the accomplice.

2. Other Crimes Committed by the Principal 3. Innocent Instrumentality Example. A political extremist sends an anthrax-laced letter to a senator via the U.S. mail. The mail

carrier does not know that the letter is contaminated. The senator receives the letter, becomes infected, and dies.

Here, the mailman has no liability because he lacks the mental state required for attempted homicide – that is, the purpose to cause a death. But if no crime was committed by the mailman, how can the terrorist bye held as an accomplice? Remember that an accomplice share the principal’s liability. To resolve this problem, the law treats the extremist as the principal actor. He becomes liable for attempted murder having used the mailman as his innocent instrument.

4. The Feigning Accomplice and the Feigning Principal Example: A assists B in the commission of the burglary. However, A only wanted to help B so that

A could contact the authorities. A wanted B to be guilty of a crime. The court ruled that A did not have a felonious intent, and is therefore free of criminal

liability.

Conspiracy (p. 749-90) A. INTRODUCTION

1. Conspiracy is simply an agreement between two or more individuals to commit a crime. 2. Conspiracy is an anticipatory offense, much like attempt and solicitation. However, unlike the other

anticipatory crimes, one may be convicted of both the target offense and conspiracy towards that target offense.

3. Conspiracy is important from a procedural standpoint, because of the way it alters traditional rules of the admissibility of evidence. For instance, prosecutors are afforded greater latitude for choosing venue in conspiracy trials, because the co-conspirators may be tried in the jurisdiction they were in at the time of the conspiracy’s formation. Also, an exception to the hearsay rule includes statements by co-conspirators.

4. Common Law versus Model Penal Code At common law, conspiracy is simply an agreement among two or more people to commit

something illegal. The Model Penal Code requires an agreement and an overt act in furtherance of that agreement. At common law, no overt act is required.


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B. CONDUCT 1. Agreement

See Martinez v. Wyoming (1997) Bilateral versus Unilateral Agreement

See Washington v. Pacheco (1994) The MPC only requires a unilateral agreement and an overt act, whereas common law requires a

bilateral agreement.

2. Overt Act See State v. Dent (1994) Conspiracy statute requires a “substantial step” towards and the court interpreted this to necessitate

an overt act. While in prison, defendants conspired to commit murder. Court found that this substantial step applies to the formation of the agreement, not the commission

of the target offense. Given the evidence, the court found that the substantial step towards the formation of the agreement

had been reached.

C. MENTAL STATES Model Penal Code § 5.03 Criminal Conspiracy

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or person that they or one or more of them will engage in conduct

that constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an

attempt or solicitation to commit such crime. [See People v. Lauria (1967)] Mental State Regarding a Circumstance [See People v. Feola (1975)]

D. SCOPE: THE PINKERTON DOCTRINE, ASSOCIATION OF PARTIES, AND DURATION 1. The Pinkerton Doctrine See Pinkerton v. United States (1946)

Not a popular doctrine; no endorsed by Model Penal Code. Pinkerton Doctrine states that if subsequent offenses are in the wake of the conspiracy and

reasonably foreseeable, then an individual could be liable for a crime as a conspirator, regardless of that person’s knowledge.

2. Association of Parties to a Conspiracy See United State v. McDermott (2001)

The defendant must have an idea of the other actors in the conspiracy. It is not enough that the actors have the same purpose, they must have the same agreement in

order for a conspiracy to exist.


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4. Wheel Conspiracy: Principal actor enacts the same scheme with several different actors independently. Each agreement with an actor is a single conspiracy. Therefore, the principal is liable for as many conspiracies that are independent illegal agreements.

5. Braverman Rule: One agreement yields one conspiracy. 6. Duration of a Conspiracy See United States v. Jimenez Recio (2003)

Court held that a person can be part of a conspiracy whose objective has already been thwarted.

E. THE CORRUPT MOTIVE DOCTRINE AND THE TARGET OF THE CONSPIRACY 1. Wharton’s Rule – If a crime/statute has already taken into account the plurality of actors then

conspiracy cannot apply. An example of this is the crime of dueling, which, by definition, requires two people.

F. ABANDONMENT

Whether or not a jurisdiction requires an overt act is a dispositive factor in determining whether an actor can be liable for conspiracy.

If an overt act, but not the specific act conspired to, is committed, then the withdrawing party is liable for the conspiracy.

Model Penal Code § 5.03 Criminal Conspiracy (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to

commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

The difference between traditional view and Model Penal Code is that the MPC get the offender retroactively out of the conspiracy, whereas the traditional view maintains one’s liability for conspiracy.

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