CRIMINAL LAW OUTLINE



CRIMINAL LAW OUTLINE

I. General Principles

A. Three material elements of a defense:

1. the nature of the forbidden conduct

2. the attendant circumstances

3. the result of the conduct

B. Four kinds of culpability:

1. Purposeful – a conscious object to perform an act of the nature or to cause such result.

2. Knowledge – awareness that requisite external circumstances exist; could require actual knowledge.

3. Recklessness – involves conscious risk creation; acting with a probability, less than substantial certainty, that a substantial, unjustifiable risk exists.

a. A person should have been aware.

b. Court must decide if the Δ’s disregard of the risk involved a gross deviation from the standards of conduct that a law-abiding person would have observed in the same situation.

4. Negligence –does not involve a state of awareness; a person inadvertently creates a substantial and unjustifiable risk of which he is not aware.

a. Lesser degree of intent than recklessness.

Defining Culpability

II. Elements of Culpability

A. Actus Reus

1. General Information

a. Definition: “Actus Reus” is the physical or external part of the crime.

b. Two different offenses: 1) result crime, act has a harmful result (murder), or 2) conduct crime, will not include a harmful result, as in no tangible loss (drunk driving).

2. Voluntary Acts

a. Rule1 – the act must be voluntary in order for someone to be guilty of an offense.

i. Fact Pattern – A drunk person who is brought into a public place involuntarily cannot be convicted of a drunk in public charge. (Martin v State)

b. Rule 2 – In cases of voluntary unconsciousness through consumption of alcohol, drugs, etc., there is not a complete “involuntary act” defense.

i. Fact Pattern – If a Δ has been drinking and has an automated response (due to past wartime experiences) and kills someone, he may not have a conditioned response defense. (State v Utter)

c. Model Penal Code: The following are not voluntary acts:

i. a reflex or convulsion

ii. a bodily movement during unconsciousness or sleep

iii. conduct during hypnosis

iv. a bodily movement not otherwise a product of the effort or determination of the actor, either conscious or habitual.

3. Omissions

a. Rule 1 – There are certain situations in which a duty is obligatory, and an omission of reasonable and proper acts to rescue that person creates a legal responsibility and a possible manslaughter charge: domestic relationship, public duty, voluntary choice of care of another helpless person.

i. Fact Pattern – When a man has a woman over to his house, and does not attend to her when she has taken drugs, and she dies as a result, he has a moral, but not a legal duty, to assist her. (People v Beardsley)

b. Rule 2 – An omission must result in an unlawful killing in order for Δ to be culpable.

i. Fact Pattern – If a doctor fails to act on his duty to give a patient the necessary care to keep her alive while in a vegetative state is done with consent of the family, it is a lawful killing and not criminal. (Barber v Superior Court)

B. Mens Rea

1. General Information

a. Definition: “Mens Rea” is the mental or internal ingredient of the crime; Means a guilty mind, a guilty or wrongful purpose, or a criminal intent.

i. Broad meaning – guilty if commits a social harm with any morally blameworthy state of mind

ii. Narrow meaning – guilty if have mental state regarding the “social harm” elements in the def. of the offense.

b. Rule 1 – Mens rea as an element of an offense requires two distinguishable states of mind: 1) an intent to do the particular kind of harm done, or 2) recklessness about choice to do act even though foresees harm would occur.

i. Fact Pattern – If Δ breaks into a gas main w/ the intent to steal money, but does not intend for someone to be asphyxiated by the gas fumes, he did not intend to do the harm and should not be held liable. (Regina v Cunningham)

2. Elements

a. Intent

i. Definitions:

1. General Intent: no particular mental state is proscribed in the definition of the crime, so the prosecution need only prove the actus reus was performed with a morally blameworthy state of mind; requires less of a culpable state of mind, such as recklessness or negligence.

2. Specific Intent: a particular mental state is expressly set out in the definition of the crime, e.g. “with intent to sell”; could require knowledge.

ii. Rule 1: A defendant who intends to commit an act is also presumed to intend the natural and probable consequences of his actions.

1. Fact Pattern: If a Δ swings a bottle with the intent to hit one person, and inadvertently hits another person, injuring him, he is still guilty of aggravated battery. (People v Conley)

iii. Rule 2: In a result crime (i.e., battery and murder), intent includes not only those results that are the conscious object of the actor (what he wants to occur), but also those results the actor knows are virtually certain to occur from his conduct (even if they are not wanted).

b. Knowledge of Circumstances (Willful Blindness problem)

i. Rule 1 – Willful Blindness – If Δ is suspicious in a given situation, but then deliberately omits to make further inquiries b/c he wishes to remain in ignorance, he is deemed to have knowledge.

1. note: deliberate ignorance and positive knowledge are equally culpable.

2. Fact Pattern: A man drives a car with drugs concealed in it, even though he has suspicions about being asked to do so, and deliberately avoids learning what is in the car compartment.

ii. Rule 2 – If a state does not have a willful blindness statute, and the facts of the case indicate that Δ exhibited a gross deviation from the norm by disregarding a risk, Δ will likely be guilty of recklessness, not knowledge.

1. Fact Pattern: A strip club owner believes an applicant is likely under legal age, but does not check her ID. Missouri did not have a willful blindness statute, and Δ was guilty of recklessness. (State v Nations)

3. Defenses

a. Mistake of Fact

i. Rule – A Δ may use the “mistake of fact” defense if he, in good faith, believed that his acts were lawful – and hence did not have the requisite criminal intent. Δ’s belief need not adhere to the objective standard of a hypothetical reasonable man.

1. Fact Pattern: If defendant entered a construction site and took wooden beams, but had the good faith belief that they were abandoned, he did not have the specific intent to convict him of theft. (People v Navarro)

May be a defense, but you must look at what the mistake is that’s being made, and whether it negates an element of the offense.

b. Mistake of Law

i. Rule – A Δ may not use “mistake of law” as a defense; It does not excuse criminal conduct.

1. Fact Pattern: If a peace officer reads the statute of another State, interprets it to mean that he may carry a loaded, concealed weapon, but the statute does not allow for this, he may not use his mistaken interpretation of the statute as a defense. (People v Marrero)

2. note: If this defense were accepted, mistakes about the law would be encouraged, rather than respect for and adherence to the law.

3. note: The dissent in Marrero felt mistake of law should be a valid defense, and that to exclude it would be to defeat the very purpose of the statute’s enactment. In this case, in particular, the facts are not likely to be repeated, and the use of this defense would not have the grievous consequences predicted by Majority.

4. Punishments

a. Strict Liability Offenses

i. Definition: A strict liability offense is one in which the Court does not consider a mens rea element.

ii. Rule 1 – Strict liability applies most often in “public-welfare offenses,” in which there is a minor violation of liquor laws, anti-narcotics laws, motor vehicle regulations, etc., and where the penalty is light (a relatively small fine and no imprisonment).

iii. Rule 2 – The crime of statutory rape is a strict liability offense, in that mens rea is not considered and Δ may not use the fact that he was mistaken as to the victim’s age as a defense.

1. Fact Pattern – A mildly retarded man has “consensual sex” with a 13 year old. He is found guilty under the statute even though he believed the girl was older. (Garnett v State)

a. note: This decision was in opposition to the Model Penal Code, which believed strict liability should only be applied in cases which are deemed violations leading to fine, forfeiture, or other civil penalty (in this case there was a max. penalty of 20 years imprisonment).

iv. Strict Liability is usually criticized on two grounds:

1. It does not deter an actor is potentially unaware of the facts that would render his conduct dangerous.

2. It is unjust to condemn a person who is not morally culpable.

HOMICIDE

III. General Information

A. Murder

1. Divided into degrees:

a. First degree murder – An unlawful killing of a human being with malice aforethought, and premeditation and deliberation.

b. Second degree murder – All other murders that are not first degree; An unlawful killing of a human being with malice aforethought, but NO premeditation and deliberation.

2. Murder requires malice.

a. Two kinds of malice:

i. Express malice – when there is manifested a deliberate intention unlawfully to take away life.

ii. Implied malice – when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

b. Four states of mind, constituting “malice aforethought”:

i. Intent to kill – awareness that death would result from one’s actions, even if had no particular desire to achieve the consequence.

ii. Intent to cause grievous bodily harm – actor has knowledge actions will cause serious bodily injury (intent to cause such injury), and a death results.

iii. Depraved-heart murder – unintentional homicide under circumstances where actor displays a “depraved mind” or an “abandoned and malignant heart.”

1. Extreme recklessness regarding homicidal risk.

2. Derives from decisions and statutes.

iv. Intent to commit a felony – origin of the felony-murder rule, which assigns strict liability for homicide committed during the commission of a felony.

B. Manslaughter

1. Definition: Unlawful killing of a human being without malice aforethought.

2. Acts that constitute manslaughter:

a. “Heat of passion” killings as a result of adequate provocation (without malice); OR

b. Where death results from an act that was regarded as unduly dangerous to life or an act that was otherwise unlawful.

3. Two variations on manslaughter:

a. Voluntary manslaughter – Conduct that was insufficiently reckless or negligent to constitute “depraved heart” murder, but exhibited culpability greater than ordinary civil negligence.

b. Involuntary manslaughter – When an actor caused the death of another in the commission of an unlawful act (sometimes called the misdemeanor-manslaughter rule).

IV. Intentional Killings

A. Murder – Premeditation-Deliberation Formula

1. Rule 1 – Although premeditation-deliberation is not measured by a certain amount of time, there must be some period between the intent to kill and the actual killing, allowing an opportunity for some reflection.

a. Fact Pattern: If a Δ goes into a gun shop, gets into an altercation with the shop owner, and stabs him 51 times with a knife, the jury must consider whether the intent to kill existed for any period of time prior to the killing. (State v Schrader, holding from State v Guthrie – which overturned Schrader)

2. Rule 2 – In order for a first degree murder conviction, the prosecution must provide evidence proving the existence of premeditation and deliberation of the specific intent to kill.

a. Fact Pattern: If a father continuously abuses his son, and in one instance kills him, but the State does not provide proof that the father had the intent to kill, his sentence will be mitigated to second degree murder. (Midgett v State)

3. Rule 3 – Direct evidence is usually not necessary to prove premeditation; only circumstantial evidence is necessary.

a. Fact Pattern: In determining that a son who killed his chronically ill father in the hospital was guilty of premeditation, the Court looked at the fact that he shot his father numerous times, had no reason to be carrying the gun, admitted he had though about putting his father out of his misery, etc. (all circumstantial). (State v Forrest)

4. Circumstances to consider in determining whether a killing is done with premeditation (according to Majority in Forrest) are:

a. want of provocation on the part of the deceased

b. the conduct and statements of the defendant before and after the killing

c. threats and declarations of the Δ before and during the course of the incident giving rise to death

d. ill-will or previous difficulty between the parties

e. the dealing of lethal blows after the deceased had been rendered helpless

f. evidence that the killing was done in a brutal manner

B. Manslaughter – Heat of Passion

1. Rule 1 – Words alone are not adequate provocation in order to mitigate a charge to manslaughter; Words may only be provocation is accompanied by conduct indicating an intention and ability to cause bodily harm.

a. Fact Pattern: Where the deceased is Δ’s wife, and she is taunting him with insults, sitting his back, pulling his hair, Δ is not adequately provoked to kill her because her words alone are not sufficient – being smaller and weaker, her ability to harm was not established. (Girouard v State)

2. Rule 2 – “Rule of Provocation” – State courts have these requirements when analyzing “heat of passion”:

a. There must have been adequate provocation

i. Not words alone

b. The killing must have been in the heat of passion

c. It must have been in the sudden heat of passion

i. “cooling off time” – the provocation defense is not available to Δ who commits the act after a “reasonable opportunity for the passion to cool.”

d. There must have been a causal connection between the provocation, the passion, and the fatal act.

3. Note: The modern trend is to leave the determination of adequacy of provocation entirely to the jury.

V. Unintentional Killings

A. Unjustified Risk-Taking

1. Culpability in this type of unintentional killing is measured on a scale:

a. Civil liability (where there is something less than criminality) (

b. Involuntary manslaughter (wanton or reckless disregard of human life / gross negligence) (

c. Depraved-heart murder (wanton indifference to human life)

2. Rule 1 – In a homicide prosecution, reputation or character evidence that does not directly address the criminal charge may not be used to condemn defendant, unless the defendant puts his own reputation at issue.

a. Fact Pattern: When a man drives under the influence of alcohol, gets in an accident, and kills another person, the stickers on his car stating drinking slogans may not be admitted as evidence. (State v Hernandez)

3. Rule 2 –Regardless of ignorance, if conduct fails to use ordinary caution a defendant is guilty of ordinary negligence, and hence guilty of statutory manslaughter.

a. Fact Pattern: If parents fail to treat their own child’s illness, which they have a natural duty to do, and the child dies as a result, defendants may not use ignorance as a viable defense. They breached “ordinary caution” when they failed to timely furnish medical care, and hence are guilty of statutory manslaughter. (State v Williams)

b. note: Many courts today have moved beyond this standard of ordinary negligence, to requiring “criminal negligence” – so gross as to merit

B. Unlawful Conduct / Felony-Murder Rule

1. Introduction

a. Felony-Murder Rule permits severe punishment (first degree murder) for the most heinous of offenses in some cases that can appropriately be described as accidents.

i. If the act causing death be unlawful, then it is murder; There need be no proof of culpability w/ regard to the death (strict liability).

b. Rule – Even though a death may unintentionally be caused during the commission of a felony, defendant is held under a strict liability offense and I automatically charged with first degree murder (whether the killing was intentional, negligent, or accidental).

i. Fact Pattern: If defendant was stealing tires, is pursued by the police, and in the course of a high-speed getaway hits another car, killing someone, the defendant is guilty of first degree murder. (People v Fuller)

c. Can approach felony murder rule in two ways:

i. Agency approach – look to who kills (a felon or a non-felon) in order to evaluate imposition of the rule.

1. Court does not consider who dies, because they do not want to place more value on one person’s life than another.

ii. Proximate Causation approach – does not matter who does the killing or who dies, it is strict liability regardless because it is a consequence of commission of the felony.

d. There is an element of “accomplice liability” – the person waiting in the car could be guilty of felony-murder also.

2. Policy Debate

a. The felony-murder rule has come against widespread criticism. The US is the only Western nation still implementing this rule.

b. Felony-murder is rationalized in four ways:

i. Deterrence

1. Some say absurd, esp. if killing accidental – how can one deter an unintended act?

2. Proponents say this is the type of simple, readily enforceable, and widely known principle that is likely to result in deterrence.

ii. Transferred Intent – intent to commit felony transferred to killing

iii. Retribution – the felon has an “evil mind” the justifies punishment

iv. General Culpability – eliminates the mens rea requirement, and creates a strict liability crime

3. Limitations on the Rule

a. Rule 1 – The felony-murder rule should not be applied if the underlying felony is not inherently dangerous.

i. If the felony is not inherently dangerous, then it is highly improbable that a potential felon would be deterred.

ii. Fact Pattern: If a defendant provides holistic healing methods to an ill person without a medical license, and his massages cause internal bleeding and later death, he cannot be charged with felony murder because the felony is not inherently dangerous. (People v Burroughs)

b. Rule 2 – In cases where the felony is an integral part of the homicide, not independent of it at all, the Court may not apply the felony-murder rule.

i. Fact Pattern: Defendant is disciplining her child by hitting him repeatedly, and in the course of punishment kills him. The intended felonious assault (child abuse) was the direct cause of the murder, so must be considered separately by the court, not as strict liability. (People v Smith)

c. Rule 3 – A defendant may not be held liable for the death of a co-felon at the hands of a third party during the commission of a felony.

i. Fact Pattern: A defendant and a co-felon robbed a house. Police arrived at the scene; defendant is arrested and in a squad car, when his co-felon is shot and killed by a police officer. Defendant is not liable for his co-felon’s murder because he should not be criminally responsible for the lawful acts of a peace officer. (State v Sophophone)

C. Capital Murder

1. General Information

a. In Furman v Georgia in 1972, the Supreme Court justices were divided as to whether capital murder should remain a valid punishment.

i. Two justices concluded that capital murder is unconstitutional in all circumstances regardless of the procedures used.

ii. Three justices said juries should not have unfettered discretion in determining who would be executed, increasing the risk of the punishment being applied arbitrarily, capriciously, or in a discriminatory manner.

iii. Four justices felt the full discretion left to the jury was permissible.

b. The Model Penal Code provides for a post-conviction sentencing hearing at which the parties may introduce evidence of statutory aggravating and mitigating factors relating to the murder and the defendant.

i. At this trial, jury decides between death and LWOP (life without parole).

2. Establishment of Statute

a. Rule – There must be a narrowing process in which we separate crimes in which the death penalty would be applicable.

i. Example: Georgia statute retains the death penalty for six crimes: 1) murder; 2) kidnapping for ransom or where the victim is harmed; 3) armed robbery; 4) rape; 5) treason; and 6) aircraft hijacking.

b. Rule – It is not a violation of the US Constitution for a death penalty statute to allow a jury to consider the particular nature of the crime and characteristics of the defendant in the sentencing procedure. (Gregg v Georgia)

i. While some jury discretion is allowed to exist, the discretion used should be controlled by clear and objective standards so as to produce a non-discriminatory application of the penalty.

3. Racial Discrimination Issue

a. Rule – If a defendant uses statistical studies showing a pattern of discrimination in capital sentencing as part of his defense at sentencing, he must also provide proof that a particular factor was present during his own proceedings. (McCleskey v Kemp)

Reasonable Man Standard

VI. Definition: Historically, the reasonable man is an objective standard; A wholly impersonal figure to which no specific characteristics of the defendant are to be attributed.

A. The Homicide Act changed the law so that now a jury is solely responsible for applying the reasonable man standard.

B. More modern applications tend to allow for flexibility in applying defendant’s characteristics to the reasonable man.

C. Rule 1 – As a general principle, the Court has discretion whether to apply the characteristics of a defendant to the reasonable man standard, and determining which characteristics are allowable. Typically, the trier of fact would apply those characteristics that directly affect an element of self-control (i.e., age, gender, or race affecting self-control or defendant’s sensitivities, etc.).

1. Fact Pattern: Defendant, a 15 year old boy, claims to have been sodomized, and then laughed at, by a grown man. The boy kills deceased by hitting him on the head with a pan. The jury must consider the age of the defendant in reaching its verdict and applying the reasonable man standard – because his age relates directly to the crime. (Director of Public Prosec. v Camplin)

2. note: Jury must find not only find that the “subjective reasonable man” would have been provoked in the circumstance, but also that he would have reacted in the same manner.

3. note: Characteristics such as drunkenness, ill-tempered personality, depression, etc. may not be used in the provocation defense.

D. Rule 2 – In order for a defendant to use the defense of extreme emotional disturbance, he must prove 1) that he acted under the influence of emotional disturbance, and 2) that there was a reasonable explanation or excuse for such emotional disturbance.

1. Fact Pattern: Where defendant visits the home of a woman who has rejected him romantically, stabs her in the throat numerous times and drowns her in her bathtub, he could not use emotional disturbance as a mitigating factor. The Court made an effort to understand Δ’s circumstances, but thought the circumstances were so peculiar to him that the emotional reaction could not be considered reasonable. (People v Casassa)

Rape

VII. General Information

A. A Rape statute may contain definitions or provisions for:

1. Act (penetration, by whom)

2. Consent

a. Voluntary / Involuntary (intoxication / duress)

b. Timing

c. Withdrawn

d. Words / actions / context

e. Competence to give consent

3. Reasonable belief of defendant

4. Force

5. Relationship between parties

6. Resistance (physical? How much?)

7. Age

8. Reporting Requirement

B. Some statutes say has to be penetration w/ penis, others w/ any object.

C. Many statutes do not include anal penetration, but categorize this as sodomy.

VIII. Forcible Rape

A. Force and Nonconsent

1. Definition of forcible rape: Nonconsensual intercourse obtained by threat of force (typically constructive force)

2. Force

a. An explicit threat is not necessary, merely a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sex.

b. Some states’ statutes may require that there be substantial evidence of force, actual or constructive, related directly to the intercourse. (State v Alston, North Carolina)

c. Some people feel a court should consider the defendant’s past history of violence with the victim (hence knowledge of an attacker’s reputation for violence) in establishing reasonableness factors.

d. Rule: Physical force in excess of that inherent in the act of sexual penetration is not required for penetration to be unlawful.

i. Public policy reasons: To remove all requirements found to be contrary to the interests of rape victims.

1. Victims generally do not suffer external bruises or cuts, so would make force difficult to prove in many cases.

3. Consent

a. Rule: The plaintiff (prosecution) must present sufficient evidence to prove mental coercion, or threat, or force inconsistent w/ consensual sexual intercourse.

b. Rule: There need be no more force than is necessary to engage in nonconsensual sexual intercourse when a reasonable person can determine from the facts that consent was not freely-given.

c. Persons need not expressly announce their consent, but it may be indicated through physical actions rather than words.

4. Withdrawn Consent

a. Once consent is withdrawn before penetration, sexual relations would be rape.

b. Some jurisdictions also find that is rape if consent withdrawn during intercourse, any earlier consent is effectively nullified, subjecting the male to forcible rape charges if he persists in intercourse.

i. Courts have rejected the notion that a man needs a reasonable amount of time after such withdrawal of consent to cease intercourse.

B. Mens Rea

1. The general rule regarding mens rea is:

a. “if a Δ entertains a reasonable belief that a victim voluntarily consented to engage in sexual intercourse, he does not possess the wrongful intent that is a prerequisite.”

2. Courts have found, though, that Mistake of Fact may not be used as a defense in a rape case.

a. CA courts have held that a “reasonable mistake” instruction may be given, but only if there is “substantial evidence of equivocal conduct” on the part of the female.

b. There is often a similar rule regarding statutory rape, and namely the age of the victim in such a case.

Inchoate Offenses

IX. General Information

A. Definition: Allows punishment for an actor even though he has not committed the crime that is the object of his efforts.

B. Deals with conduct that is designed to culminate in the commission of a substantive offense, but has failed to do so or has not yet achieved its culmination.

1. Ex: Attempt, solicitation, conspiracy

X. Attempt

A. General Principles

1. Covers attempts to commit any felony or misdemeanor

2. A defendant may not be convicted of both a completed offense and an attempt to commit it.

a. Attempt is a lesser offense.

3. Two varieties:

a. Incomplete

i. Actor does some of the acts set out to do, but then desists or is prevented from continuing by an extraneous factor.

b. Complete

i. The actor does every act planned, but is unsuccessful in producing the intended result.

ii. A Δ may be convicted of a double inchoate offense – attempting to lure a child into the car and the intent to commit some further harm, for example.

B. Public Policy

1. The principle purpose is not deterrence, but to provide law enforcement to intervene before an individual can commit a completed offense.

2. Attempts may support predictions about the defendant’s ability to do harm, as would have the substantive offense.

3. Intent principle – individuals should be judged on the basis of what they believed they were doing.

4. Some commentators believe that punishment in the absence of harm is unjustifiable (would serve to punish bad intent or the mere possibility of harmful conduct).

C. Mens Rea

1. Criminal attempts involve two intents:

a. The actor must intentionally commit the acts that constitute the actus reus of an attempt.

b. The actor must have the specific intention of committing the substantive crime in question.

2. Rule: There must be a target offense, and you look to the elements of that offense to define the requirements for the attempt.

a. Ex: A finding of attempted murder only requires a specific intent to kill.

i. A jury need not consider all mental states associated with a charge of murder.

ii. Intent to kill is the pivotal element of that offense; Intent to do bodily harm, or knowledge that the consequence’s of Δ’s act may result in death or great bodily harm, is not enough.

D. Actus Reus

1. Preparation

a. When the actor takes the first steps necessary before the substantive crime can come to pass, but still retains the ability to change his mind.

b. Generally mere preparation is not sufficient to constitute an attempt to commit a crime.

c. MAY amount to attempt, but is a question of degree.

i. If the person comes very near the accomplishment of the act, then the intent to complete renders the crime so probable that the act will be a misdemeanor.

2. Two Tests to establish Attempt:

a. Dangerous Proximity Test

i. Definition: The natural conditions present are not enough to do the harm w/out a further act, but where it is so near the result that if coupled with an intent to produce that result, the danger is very great.

1. i.e., There must be dangerous proximity to success, as in an attempt coming very near the accomplishment of a crime.

ii. GOOD FOR THE DEFENSE

b. Substantial Step Test

i. Definition: When an actor possesses materials to be used in the commission of a crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a “substantial step” toward the commission of the crime.

1. Conduct does not constitute a substantial step unless the person’s entire course of action is corroborative of the intent to commit the offense.

2. The fact that further major steps must be taken before completion of the crime does not preclude a finding that the steps already taken are substantial.

ii. GOOD FOR THE PROSECUTION

E. Example: Email Threats

1. In a threat of this type, the prosecution must prove three elements:

a. A transmission in interstate commerce

b. A communication containing a threat

c. The threat must be a threat to injure the person of another

2. A threat should demonstrate a combination of mens rea and actus reus.

a. The comm.. must be such that a reasonable person:

i. would take the statement as a serious expression of an intention to inflict bodily harm (mens rea), AND

ii. would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (actus reus).

F. Special Defenses

1. Impossibility

a. Three main types:

i. Factual Impossibility – Intended end constitutes a crime but defendant fails to consummate it b/c factual circumstance(s) unknown to her or beyond her control.

1. e.g., attempted murder after pointing an unloaded gun at someone and pulling the trigger, where Δ believed the gun was loaded.

2. NOT A LEGITIMATE DEFENSE

ii. Pure Legal Impossibility – Exists if the criminal law does not prohibit Δ’s conduct or the result that she has sought to achieve.

1. Believes what she is doing is criminal, but is not actually prohibited by law.

iii. Hybrid Legal Impossibility – Exists if Δ’s conduct was illegal, but commission of the offense was impossible due to factual mistake by regarding the legal status of some factor relevant to her conduct.

1. The most commonly used legal impossibility

2. e.g., Δ charged with “receiving stolen property with knowledge it is stolen,” the person is legally incapable of committing the offense if the prop is not stolen.

b. Courts are reluctant to embrace this defense, as you may often meet the same defense by analyzing the statute.

2. Abandonment

a. Requirements:

i. Must evaluate why the effort abandoned

1. Must be voluntary

a. e.g., if result of an internal cathartic reaction (fear of disgracing family, etc.)

b. Some say this may include fear of being caught is voluntary

2. Must be complete abandonment

b. Arguments:

i. DEFENSE: Actor did not go far enough to constitute the offense (mere preparation)

ii. PROSECUTION: Might say abandonment was not voluntary, or actor did go far enough to move beyond preparation

c. Voluntary abandons are less likely to be found to be attempts than are plans carried to the same point, but interrupted by the apprehension of the perpetrators.

d. Public Policy argument: The knowledge that voluntary abandonment exonerates one from crim liability provides a motive to desist prior to completion of the crime.

e. Courts profoundly favor this defense.

XI. Conspiracy

A. General Principles

1. A mutual agreement or understanding, express or implied, between two or more persons to commit a crim act or to accomplish a legal act by unlawful means.Poses an advantage for prosecution, giving it the ability to charge co-conspirators with other people’s crimes.

a. The crime is complete upon formation of the agreement.

b. When the target crime is completed, the conspiracy is over

2. Is defined by statute.

3. There is no merger – i.e., a defendant may be charged with conspiracy and the substantive offense.

a. Exception: May not charge both conspiracy and attempt.

4. Public Policy reason – group criminality is more dangerous to society.

a. Provides an opportunity for earlier intervention than other offenses.

B. Requirements

1. Actus Reus

a. Most states require an overt act in commission of the target offense.

i. But something less than would be required for attempt.

1. ANY overt act is enough, no matter how preliminary in nature, as long as it manifests that the agreement is being carried out.

b. Only one person in the conspiracy has to conduct the overt act, and as long as it was in furtherance of the conspiracy, the other co-conspirators need not know.

c. Jurisdictions are different as to whether utilize a unilateral or bilateral statute (whether required the one or both people intend to commit the overt act)

i. e.g., If one person intends to defraud the other at the time of agreement, then may not be guilty of conspiracy (b/c no true agreement).

2. Rule: “Pinkerton Liability” – If a conspiracy continues, every member of the conspiracy is held responsible for every substantive crime by other co-conspirators, as long as act in furtherance of the crime.

a. Must determine:

i. A continuing conspiracy

ii. Acts in furtherance of the conspiracy.

iii. No withdrawal

1. To withdraw, a conspirator must make an affirmative act to thwart the conspiracy.

a. e.g., block the door, report conspiracy to officials

b. Does not happen often.

b. It potentially makes relatively minor parties in a large conspiracy criminally responsible for many completed offenses over which they had little or no control.

3. Rule: In the case of conspiracy to commit murder, need specific intent to kill, not merely implied malice.

4. Rule: Generally, mere knowledge of a crime is not sufficient for conspirator liability.

a. Conspiracy requires knowledge (+):

i. A stake in the venture; OR

1. Charging above-market rates (Benefiting financially)

2. No legitimate purpose for the type of goods delivered

3. No legitimate purpose for the volume of goods delivered

ii. Intent to participate and have purpose that offense succeeds; OR

iii. Involving a crime of a certain level of harm.

1. Does not apply to misdemeanors.

b. Fact Pattern: A person supplying a phone messenger service to prostitutes, even when knows what the service is likely being used for, would not be a conspirator to prostitution.

i. Because was a misdemeanor, and there was not specific evidence of intent to further the criminal activity (e.g., he hadn’t raised the rates for prostitutes specifically, or took a percentage of the prostitutes’ income). (People v Lauria)

5. Rule: The conspiracy must be at least one step removed from the substantive offense.

a. Conspiracy should be distinguished from accomplice liability – one can be an accomplice through aiding a crime without necessarily conspiring to commit it.

b. There must be purposeful execution of a predetermined plan, as opposed to a spontaneous act.

c. Possible litigation arguments:

i. Prosecution would argue that only a tacit, implied agreement is required.

ii. Defense would argue that verbal agreements are required, and if they take place during the commission of the offense, it would be without sufficient time before the substantive offense ( no conspiracy.

6. Rule: In a trial, hearsay testimony from a co-conspirator may only be admissible if the parties are actually determined to be co-conspirators.

C. Scope of crime

1. Two types of conspiracy:

a. Chain conspiracy

i. Success of one member of the conspiracy is dependant upon the success of the whole enterprise.

ii. Co-conspirators may be found despite a lack of communication or contact with one another.

iii. Must determine:

1. If there is a split in the chain at any point, whether there is an interrelationship between the parties in order to constitute a large conspiracy.

iv. Usually involves the distribution of narcotics or other contraband.

b. Wheel conspiracy

i. There is a “hub,” or common source of the conspiracy, who deals with different persons, or “spokes,” who do not know of each other.

1. Less likely to be a community interest or reason to know of each other’s existence.

ii. Without a common purpose or connection between persons involved, the actors may not be found co-conspirators.

iii. Must determine:

1. Whether there was a “rim” between the different spokes who may not know one another.

a. Existence of one person in common has been found insufficient.

c. Note: It is possible to have a chain / spoke combination.

D. Defenses to Conspiracy

1. “Wharton’s Rule” – If a crime requires two people, then there is no conspiracy between those two people.

a. e.g., incest, adultery

b. “Third-part exception” – the Rule rendered inapplicable when the conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense.

c. Argument against rule: Even in a crime requiring only two people, there are likely more people affected by the substantive offense.

2. Withdrawal

a. Not a complete defense to conspiracy, as the crime of agreement has already occurred.

b. Can be a defense, precluding a person from being guilty of subsequent crimes of co-conspirators.

c. Under case law, generally requires an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the co-conspirators.

i. If a statute is silent as to the requirement of withdrawal, the person must somehow stop the commission of the offense.

d. Policy Justifications

i. As long as the person is doing everything they can to stop the crime, he has lessened his culpability.

ii. The system wants to encourage people to make these efforts.

Accomplice Liability

XII. General Principles

A. Accomplice liability is not a crime, but a theory for attaching liability.

1. It creates derivative liability; Depends on actions of another person.

2. You may not have “attempted accomplice” because it is not a crime in itself.

B. A crime had to have occurred, either a substantive offense or an attempt.

C. There are now two categories: Aider and Abettor and Accomplice After the Fact

1. There is no crime of “aiding and abetting,” but the actor is instead guilty of the substantive offense committed by the primary (principle in the first degree)

a. This guilt is attached due to the accomplice’s complicity in the crime.

b. Generally, it does not matter if the primary is known, charged, or convicted.

c. If primary deemed not to have committed a crime, then accomplice will also not be guilty.

d. Some jurisdictions call an aider and abettor a “primary in the second degree.”

2. Generally, accessory after the fact is a separate and lesser offense – not guilty of the crime perpetrated by the principle.

D. Public Policy Justifications

1. When an accomplice chooses to become part of the criminal activity of another, she says in essence “your acts are my acts,” and forfeits her personal identity.

E. Culpability

1. Generally, modern statutes allow an accomplice to be charged with a greater offense than the principle actor.

a. e.g., the principle may mitigate his charge, while the accomplice does not.

2. If an accomplice attempts to withdraw, it must be done before he takes a “substantial step” toward commission of the crime (e.g., kicking a door, cheering primary on).

a. If withdrawn after an act, but before the completion of the primary target offense, can still be guilty of accomplice to attempt.

XIII. Requirements

A. Rule: An accomplice must share the criminal intent of the perpetrator (mens rea), AND do an act that shows he intended to or in fact did assist the commission of the crime (actus reus).

1. There is a “dual intent” element: intent to aid the primary party, and intent that such assistance result in the commission of the offense charged.

B. Mens Rea

1. An accomplice must act with the intention of influencing or assisting the primary actor to engage in the conduct constituting the crime.

a. Need not have a stake in the substantive crime.

2. “Natural-and-Probable-Consequences” Doctrine

a. An accomplice is responsible for those crimes reasonably foreseeable to occur during the commission of the substantive offense.

i. Need only have intended involvement in the primary crime, then would be also responsible for secondary crimes that were a “foreseeable consequence.”

3. Attendant Circumstances

a. There is a little case law directly addressing an accomplice’s liability regarding attendant circumstances to the primary offense.

i. Two approaches:

1. Require intent or knowledge as to attendant circumstance elements

2. Require an act with the kind of culpability with respect to the circumstance that would be sufficient to convict the primary party.

b. Ex: Aiding and abetting a rape, which turns out to be an underage female.

C. Actus Reus

1. There are three main types of assistance:

a. Doing an act

i. e.g., kick down door, drive car

b. Omission

i. e.g., should have done something to stop offense, but did not.

ii. Only if have legal duty to act

c. Psychological assistance

i. e.g., encouraging

ii. In mere presence cases, may be enough if:

1. Prearrangement between parties (e.g., lookout)

2. The principle knows the person is there. and the person acts in encouragement.

2. Rule: The assistance need not be successful to be liable.

a. If unsuccessful, there must have been some prearrangement, having been asked to do a particular thing.

i. e.g., a person on the street, not having been asked to assist, is not culpable if their assistance is also unsuccessful.

ii. e.g., a person asked to honk a horn for a warning, and actually honks the horn, is culpable even if not successful.

3. Rule: Accompaniment and observation are not sufficient – must have aided or encouraged in some way.

a. Generally, mere presence not enough.

b. Presence is equated with aiding and abetting when it designedly encourages the perpetrator and facilitates the crime (i.e., moral support).

i. e.g., in the case of murder, if one is present for the purpose of aiding and abetting, but refrains from so doing, he may be equally guilty.

4. Rule: If an accomplice only has knowledge of the crime, there must be proof he also received some benefit from the commission of the crime.

General Defenses to Crimes

XIV. General Information

A. Two main types:

1. Failure of Proof Defenses

a. All elements of the offense charged cannot be proven.

b. Can be mistake – the actor’s mistaken belief prevents a prosecution from proving the required mental element of knowledge.

2. Affirmative Defenses

a. Justifications

i. When the harm is outweighed by the need to avoid even greater harm, or to further a greater societal interest.

ii. Applicable to all offenses, even if elements of the offense are satisfied.

iii. This type of conduct is tolerated, even encouraged, by society.

iv. e.g., destruction of a field by fire to serve as a break, saving homes.

b. Excuses

i. Conditions suggest that the actor is not responsible for his actions.

ii. Applicable to all offenses, even if elements of the offense are satisfied.

iii. e.g., insanity

XV. Self-Defense

A. General statutory requirements for defense:

1. A threat, actual or apparent, of the use of force

2. The threat must be unlawful and immediate

3. The defender must have believed that he was in imminent peril of death or serious bodily harm

4. That the type of response was necessary to save himself

5. That the type of response was reasonable in light of surrounding circumstances

a. The test of reasonableness may be subjective or objective, depending on the jurisdiction.

i. If objective, there still may be subjective characteristics applied (sex, size, race, etc.).

ii. NOTE: generally, should do an objective test first, and then apply subjective characteristics.

b. A questions of proportionality of response.

B. Other considerations:

1. Who is the first aggressor?

a. If the defender is the first aggressor, may not use the defense.

i. Unless the defender withdraws, in which case the defense may be restored

b. Rule: Self defense is not available to a person who deliberately places himself in a situation where he has reason to know his presence would provoke trouble.

2. Duty to retreat

a. Jurisdictions split as to whether this is a consideration

i. If it is, could the defender have retreated safely? If so, no defense.

ii. A majority of American jurisdictions state one may stand his ground and use deadly force whenever it seems reasonably necessary to save himself.

b. Once retreat to a safe place, may not return to the dangerous situation.

i. In such a case, self defense would not be available.

c. The “castle doctrine” – A person need not retreat from his own residence.

i. Jurisdictions split as to whether to apply this rule.

ii. There presents a problem when the defender and the aggressor both live in the same home.

3. Whether the person defending himself is correct or mistaken

a. e.g., should a person be culpable when attacking an undercover police officer, when he believes it is an unlawful attacker?

C. Battered Women Syndrome (BWS)

1. This is not a defense, but a type of expert testimony that could explain actions.

2. A defense would try to expand the window of time to include the entirety of the time abuse occurred (perhaps years).

a. Could help to demonstrate an imminence requirement.

i. e.g., when a woman kills her husband while asleep.

3. Could argue imperfect self defense – i.e., fear was unreasonable, but real.

a. An act of disproportionate force may be justified in this situation.

4. Not universally accepted.

D. Self defense is an exception which the law wants to keep narrow so as not to negate the substantive charges (by making possibly every conviction justified by self defense).

XVI. Defense of Others

A. General Rule:

B. Two Rules:

1. Altered Ego – A person may use force when, and to the extent that, the third party would be justified in using force to protect himself.

a. If the person is not actually in danger, or if that person would not be allowed to use self defense or that type of force themselves, then defendant may not use self defense.

b. Policy Reason: Trying to limit vigilante behavior.

i. Actions may actually serve to escalate the violence.

2. Reasonable Belief – If defendant acts on a reasonable belief that his actions are necessary to protect a third party, self defense is available even if the third party would not have been able to use self defense himself.

a. A more objective evaluation of whether it is reasonable.

b. Policy Reasons: To charge a person for using self defense would discourage people from helping others.

C. Example: Application to the killing of fetuses

1. Jurisdictions split as to definition of human beings.

a. Some may include fetuses for protection, others not.

XVII. Defense of Property

A. General Rule

1. A person may not use deadly force solely to protect personal property.

2. Regarding burglary, the character and manner of the burglary must create a fear of death or great bodily harm in order to warrant the use of deadly force.

B. Different variation: Defense of Habitation (available in CA)

1. A broader rule, available more often than defense of property.

2. There is not an imminence requirement.

3. A person may use all the force necessary to repel any invasion of his home.

XVIII. Necessity

A. The defense may be used if the defendant’s actions, although violative of the law, were necessary to prevent an even greater harm from occurring.

B. Essential elements (creating a balancing test):

1. Clear and imminent danger

2. Reasonable expectation that act will abate danger

3. No legal alternative

4. Harm avoided is greater than harm caused

a. The person’s actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.

5. “Clean Hands”?? (Some courts have found that the defense is not available to a defendant who creates the situation purposefully)

a. There is no steadfast rule as to how many elements must be present in order to use the defense.

i. There should at least be imminence and a reasonableness of choice.

C. Examples:

1. The speed limit may be exceeded when chasing a criminal.

2. An ambulance may pass a traffic light.

3. Property may be destroyed to prevent the spread of fire.

D. Public Policy

1. The law ought to promote the achievement of higher values at the expense of lesser values; Sometimes the greater good of society will be accomplished by violating the literal language of the law.

XIX. Duress

A. Three elements:

1. An immediate threat of death or serious bodily injury

a. Threat must be present, immediate, or impending

b. A veiled threat of unspecified harm does not satisfy the requirement

2. A well-grounded fear that the threat will be carried out

3. No reasonable opportunity to escape the threatened harm

B. Must be an objective test, according to the MPC.

1. Some subjectivization allowed (physical factors, not mental, can be considered)

XX. Intoxication

A. Two kinds:

1. Involuntary

a. Did not do the act to intoxicate yourself

b. Very rare

2. Voluntary

a. In itself, may not be a defense, UNLESS a statute has an intent requirement.

i. In such a jurisdiction, it may be relevant in determining whether defendant could formulate the requisite intent.

XXI. Insanity

A. General information

1. The mental state of the defendant at the time of the crime.

2. The defendant, in this defense, is deemed to have done the crime.

3. The defendant is placed in a mental health facility, and moved to a regular correctional facility to finish the term if ever recovered.

a. May remain in mental health facility for longer than term if not fully recovered at the time of its completion.

i. May stay indefinitely until cured.

B. Model Penal Code definition

1. Elements (under the Model Penal Code):

a. Mental disease or defect

b. Substantial impaired

c. Inability to:

i. appreciate the wrongfulness of his conduct, OR

ii. conform his conduct to the requirements of the law

2. Not a matter of knowing the difference between right and wrong, but:

a. that does not appreciate the wrongfulness of the conduct (e.g., it was something they had to do) (McNaughten Test), OR

b. that the mental state impairs ability to control actions (Irresistible Impulse Test)

C. Available charges:

1. Not guilty by reason of insanity

2. Guilty, but mentally ill (only in some jurisdictions)

D. Dissimilar from competency

1. Competency is the mental state of a defendant at the time of trial (not at time of the crime)

a. Look to whether person is mentally capable to understand his charges, and whether able to assist his attorney.

2. If deemed incompetent, defendant sent back to jail until a time when he is competent to stand trial.

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