Santa Clara Law



Criminal Law

❖ Fundamental Observations

A. Actus Reus/Mens Rea

B. Accomplice Liability

Inchoate Crimes (SAC)-

a. Solicitation

b. Attempt

c. Conspiracy

Crimes against the person-

A. Homicide

B. Defenses

a. Justification

b. Excuse

Theft Crimes

A. Larceny/Larceny by Trick

B. Embezzlement

C. False Pretenses

D. Robbery

E. Receiving Stolen Property

F. Burglary

Defenses

A. Justification

a. Self Defense

b. Defense of Others

c. Defense of Property

d. Crime Prevention

e. Public Authority

f. Domestic Authority

g. Necessity

B. Excuse

a. Mistake

b. Mistake of law

c. Duress

d. Consent

e. entrapment

❖ Principles of Punishment

➢ Deterrence

▪ Retribution avenged

▪ Rehabilitation (Reformation) – not a primary objective in modern criminal punishment

▪ Incapacitation

❖ Principle of Legality-condemns judicial crime creation. "No crime without pre existent law, no punishment without pre-existent law".

➢ Commonwealth v. Mochan- man harasses woman over the phone, no crime for it, dissent said the majority is punishing for something that there is no law against, it’s the legislature’s job to make law

❖ Ex Post Facto Laws (from Constitution)

a.Prohibits retroactive criminalization (i.e., prosecuting someone for conduct which was legal at the time but was criminalized later) and retroactive punishments

b.Prohibits retroactive application of statutes that criminalize previously legal conduct OR that increase severity of the crime or the punishment

➢ Keeler v. Superior Court- man kicks wife and kills baby inside her, may not insert words, give them false meaning in a statute, that’s legislature’s job, must interpret the law as the legislature intended it when they wrote the law, defendant must have been on notice that what he did was a crime

❖ Rule of Lenity- where a criminal law is ambiguous, we are wary of imposing criminal liability for conduct that the law does not clearly prohibit. Void for vagueness

➢ United States v. Foster- the statute on what “carrying a gun” meant was too vague

❖ Actus Reus- voluntary act that results in harm

➢ Types of Acts

▪ Voluntary v. Involuntary act

Involuntary- MPC § 2.01(a) acts:

1. Reflex or convulsion

2. A bodily movement during unconsciousness or sleep

3. Conduct during hypnosis or resulting from hypnotic suggestions

4. Bodily movement that otherwise is not the product of the effort or determination of the actor, either conscious or habitual.

1. Martin v. State – Alabama Court of Appeals (1944)-drunk man taken by police onto public street and arrested for public drunkenness, he didn’t intend to be publicly drunk

2. There must be a voluntary act (willed movement) or an omission to perform an act where there is no duty; and there must be social harm.

State v. Utter – Court of Appeals of Washington (1971)-drunk man kills son, drunkenness is voluntarily induced

Decina-involuntary act in a voluntary course of conduct- man with cerebral palsy hit someone with car during a seizure, he should have taken precautions

▪ Passive acts (loitering)

▪ Omissions as acts (failure to act)

1. People v. Beardsley – Supreme Court of Michigan (1907)-family members have a duty to act when other person is in peril of their life

2. Barber v. Superior Court – California Court of Appeal, Second District (1983)- doctor has no duty to continue life support once it’s become futile, his omission to continue treatment in those circumstances is not unlawful

▪ Possession as act (carrying burglary tools)- Must know you have possession

United States v. Foster (carrying gun in truck bed was considered innocent, must be within reaching distance or on person, statute was too vague so ruled in favor of defendant (lenity rule). Carrying drugs in an airport. M

➢ Thoughts alone cannot constitute a crime; not an act

❖ Mens Rea

➢ Justifications for Mens Rea Requirement

1. Utilitarian - Only people who think about the penalties for an action can be deterred

2. Retributionist - A person is morally culpable, and therefore properly subject to punishment ONLY IF the person had a choice in his or her conduct and exercised free will in choosing to act. As a result, the person’s mental state, at the time when the act was committed, is relevant in assessing culpability.

➢ The internal or mental component of a crime

➢ Malice (not wickedness or ill will):

▪ Express – Intention to do the kind of harm that was done, or

▪ Implied – Recklessness as to whether such harm should occur

➢ Model Penal Code-wants to get rid of general/specific intent

▪ Model Penal Code §2.01: A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable

▪ Model Penal Code § 2.02: Except as provided in § 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

1. Purposely

• Conscious object to engage in conduct of that nature or to cause such a result or

• Aware of attendant circumstances or believes or hopes they exist

• Example: Defendant admits that he wanted his future mother in law to inhale the poison gas and die, and he knew the gas leak would reach her. He should be found guilty.

2. Knowingly

• Aware of nature of conduct and that result is practically certain to occur

• or that attendant circumstances exist

• State v. Nations – Missouri Court of Appeals, E. Dist (1984)- owner of bar didn’t know dancer was underage

• Example: Sure, the Defendant hoped that by some miracle his mother in law would not inhale poison gas, but he knew it was virtually certain that someone would when he failed to turn off the pipe. This is all it takes to convict.

3. Recklessly

• Conscious disregard to a substantial and unjustifiable risk so great that it involves a gross deviation from the law-abiding standard of care that a reasonable person would make, could foresee the risk happening. Must know that injury might result.

• Example: Defendant testified that he did not know for sure that anyone was in the building when he removed the gas meter, but he admitted that he considered the possibility and decided to take the chance. He should be convicted.

4. Negligently

• Should be aware of a substantial and unjustifiable risk so great that failure to perceive it involves a gross deviation from the standard of care that a reasonable person would exercise in the situation. Objective standard used

• Even if you believe the Defendant’s claim that he did not think of the possibility that anyone was in the building before he removed the gas meter, an ordinary person would have recognized this risk, so he should be found guilty.

▪ How to analyze statutes using fault standards:

5. Where a statute doesn’t state whether the state of mind is required for all material elements of the offense, the specified state of mind must be proven for each element of an offense, not simply that the act was committed in a morally blameworthy manner.

People v. Conley – Illinois Appellate Court (1989)

6. If the statute defining the offense does not include a state of mind requirement, the defendant must have acted with at least recklessness with regard to each material element of the offense.

➢ Thoughts alone cannot constitute a crime; Cannot punish thoughts without an act

➢ Common Law

▪ Intent- An actor commits an offense “intentionally” if:

1. it was the actor’s conscious goal to create the result; OR

2. the actor knew it was virtually certain to occur as a result of his conduct

▪ Example of Proof of Intent Jury Instruction:

1. Intent is a state of mind. Intent ordinarily cannot be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind. But you may infer intent from the surrounding circumstances. You may consider any statement made or act done or omitted. And all other fact and circumstances in evidence which indicate a state of mind. You may infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted.

General intent(culpability)-

A. used when no particular mental state is set out in the definition of the crime and therefore the prosecutor need only prove that the actus reus of the offense was performed with a morally blameworthy state of mind, any of the 4

A. used to convict on the basis of a less culpable state, like recklessness or negligence, based on specific intent B.

A. Any mental state, whether expressed or implied in the definition of the offense that relates solely to the acts that constitute the criminal offense. Ex- battery is defined by state law as "an intentional application of force upon another"

 

Specific intent (elemental)-

A. an offense in which a mental state is expressly set out in the definition of the crime, designates a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.

Most popular: 

1.  an intention by the actor to commit some future act, separate from the actus reus of the offense ex- possession of marijuana with intent to sell

2. proof of a special motive or purpose for committing the actus reus ex- offensive contact upon another with the intent to cause humiliation.

3. proof of the actor's awareness of an attendant circumstance ex- intentiona sale of obscene literature to a person known to be under the age of 18

A. An offense contains the mens rea element of intent or, knowledge, then general intent is reserved for 6 B (recklessness or negligence).

➢ Transferred Intent

▪ Acting with “intent” to commit a crime, but the victim of the completed crime is different from what the actor had suspected, thus the “intent” transfers to the new victim, and the actor is still guilty of the underlying crime.

▪ (1)Like in tort law, intent can be transferred from one person (i.e., the intended victim) to another person (i.e., the actual victim).

▪ (2)However, unlike in tort law, intent can only be transferred to the same type of harm or crime; e.g. if someone intends to kidnap A and winds up killing A, intent does not transfer from kidnapping to murder. But if someone intends to kill A but winds up killing B, then intent can transfer from A to B

➢ Presumption vs. inference:

▪ Presumption: “the ordinary presumption” is that a person “intends the natural and probable consequences of his actions”

▪ Inference: although the presumption above can be considered an inference, the court cannot presume D intends the natural and probable consequences of his actions

➢ Specific Intent Crimes

▪ The intent to commit an element of a crime that is purely mental:

1. Solicitation

2. Attempt

3. Conspiracy

4. First Degree Murder-malice aforethought

5. Assault

6. Larceny

7. Burglary

8. False Pretenses

9. Embezzlement

▪ People v. Navarro – Appellate Dept., Los Angeles County Superior Court (1979)

➢ Malice Crimes

▪ Reckless disregard of a known risk:

1. Common Law Murder (malice aforethought)

2. Arson

➢ General Intent Crimes

▪ General Intent crimes only require a volitional action of the crime

▪ Awareness:

1. Battery

2. Rape

3. Kidnapping

4. False Imprisonment

➢ Strict Liability

▪ No mens rea required:

1. Statutory Rape

2. Selling Liquor or Tobacco to Minors

▪ Criminal liability without regard to fault or intent, but simply to performing a prohibited act

▪ United States v. Cordoba-Hincapie – United States District Court, E.D. New York (1993)

▪ Garnett v. State – Court of Appeals of Maryland (1993)

▪ Example: Defendant not only knew that he was removing the gas meter, he knew that it was illegal to remove or tamper with any utility company property—that is clear proof of guilt.

➢ Mistake

1. (See below for Mistake defenses, under Defenses)

❖ Causation- must prove forseeable result to find defendant guilty

➢ Actual cause (factual cause or cause in fact)-No criminal liability for resulting social harm unless it can be shown that the defendant's conduct was a cause in fact of the prohibited result

Ask- But for D's voluntary acts, would the social harm have occurred when it did?

➢ Year and a day rule- the death of the victim must occur within one year and one day from the infliction of the injury or wound. Most states have abolished this rule.

➢ Multiple Actual Causes-

o Accelerating the result- an act that accelerates an inevitable result is nevertheless a legal cause of that result. Oxendine v. State- father beat son after gf beat son, doctor couldn’t testify that father accelerated the death.

o Concurrent sufficient cause- simultaneous acts by two or more persons may be considered independently sufficient causes of a single result.

o Obstructed Cause- w attempted to kill x, y intervened and killed x, w’s effort obstructed

➢ Proximate cause- (legal cause) Juries select the proximate cause. Proximate cause is given to the person most blameworthy. Usually only used when the victim’s death occurs because of the defendant’s acts but in a manner not intended or anticipated by the defendant.

1. An act that is a direct cause of social harm is also a proximate cause of it.

2. General rule is that all results that occur as a “natural and probable” consequence of his conduct even if he didn’t anticipate it are promximately caused by the defendant’s act. Broken only by a superceding factor.

3. You trace the cause of social harm backwards through other causes until you reach an intentional wrongdoer. --they have the requisit mens rea! You’re really just trying to find someone responsible

4. Defense: Intervening causes- independent force, another but for cause that produces social harm, comes into play after the defendant's voluntary act has been committed.

i. Intervening, not superceding-a forseeable intervening cause, doesn’t get def. off hook

a. Responsive (Dependent) Intervening cause- an act that occurs in reaction or response to the defendant's prior wrongful conduct, doesn’t get def. off hook unless unforeseeable AND abnormal or bizarre

b. Coincidental (Independent) Intervening Cause- force that doesn’t occur in response to the initial wrongdoer’s conduct, but the defendant placed the victim in a situation where the intervening cause could independently act upon him. Usually gets original wrongdoer off unless it can be shown the intervening cause was foreseeable. (Kibbe v. Henderson- robs drunk man, leaves him on the side of the road, he gets run over by car, could argue it was foreseeable)

c. Break up each act and define as responsive or coincidental

d. Omission- an omission will rarely supersede an earlier operative wrongful act, even when the person has a duty to act.

ii. Superceding cause-An intervening act will shield the defendant from liability if the act is a coincidence or not forseeable (superceding cause) Ex.-

a. act of nature- Ex. to avoid getting hit by car, car goes other way and is struck by lightening

b. act by guilty third party

c. act by the victim- can be suicidal act, he refuses medical treatment due to religion-"free deliberate, informed” human intervention- the defendant was all those things and decided to ad lib after the defendant's initial cause, causing his/her own death. Ex- state v. preslar-husband abused, ran into cold, wouldn’t enter father’s house and froze to death outside

i. De Minimis-But if the intervening cause doesn’t sufficiently change things it's 'de minimis" and he is not guilty. Intervening cause is not the REAL cause of the harm.

i. Intended consequence doctrine- It was x's intention to do this, it was accomplished but not by her plan, still her fault. Good ex of proximate cause, tracing back. Ex. poison

A. Model Penal Code

1. Actual cause- applies the but for (sine qua non) rule

1. Proximate Cause (Actually, Culpability)- But for causation is the exclusive meaning of causation for the MPC. Matters of proximate causation are treated as issues relating to the actor's culpability. Ask instead whether it may still be said that he caused the prohibited result with the level of culpability--purpose, knowledge, recklessness, or negligence--required by the offense.

*Major difference betwn common law and mpc are the tseps prior to the “forseeability(common law)/too remote or accidental (MPC)” tests. Common law those steps are coincidence v. response, MPC those are the but/for test and culpability requirements.

 

 

❖ Criminal Homicide

➢ Common Law Murder

A. Murder- the killing of a human being by another human being with malice aforethought.

i. Common Law- no degrees..

i. Modern (Pennslyvania Model)- Murder in the first degree(voluntary)

i. 4 States of Mind to determine malice:

1. Express Malice-The intention to kill or inflict bodily injury to a human being:

a. Ordinary people intend the natural and probably consequences of their actions

a. The defendant is an ordinary person, and

a. Therefore she intended the natural and probably consequences of her actions (the use of a deadly weapon gives greater proof of this, must intend to kill)

1. Implied Malice- no considerable provocation

a. The intention to inflict grievous bodily injury on another

a. An extremely reckless disregard for the value of human life (depraved heart murder)

a. The intention to commit a felony during the commission ro attempted commission of which the death results (felony murder rule)

Limitations:

i. must be independent of the act causing the death

i. The felony must be an inherently dangerous one

i. Must be a foreseeable outgrowth of defendant's actions

i. Aforethought: Unless a statute requires proof of premeditation, a spur of the moment killing may constitute murder

i. Defenses- justification (self-defense), excuse (insanity), mitigating circumstance (sudden heat of passion). Without one of these the person is guilty of killing with malice aforethought.

 

A. Manslaughter-An unlawful killing of a human being by another huamn being without malice aforethought.

i. 3 Types of Manslaughter defenses:

1. An intentional killing committed in sudden heat or passion as the result of adequate provocation(voluntary manslaughter)

a. Must act in the heat of passion

i. Can be Violent, intense, high-wrought, or enthusiastic emotion

i. Examples- fear, jealousy, furious resentment, wild desperation

i. Having a hot temper or being drunk is no defense

a. The passion must have been the result of adequate provocation

i. Provocation is adequate if it would cause an ordinary man to lose control of his actions and reason, making you incapable of cool reflection

1. The gravity of the provocation- how serious it was to him/her(subjective), takes into account physical characteristics- what is provocative to one is not provocative to another

1. The standard of self control- whether it was enough to make a reasonable person do as he did.(objective test that takes into consideration age and sex) (Attorney General v. Holly- man kills wife with an ax after she says "you wouldn't dare")

i. Words alone are not adequate provocation (not a proportional reaction to the provocation) (Girouard-killed wife for saying she would leave him)

i. Policy for provocation- thos who kill in the heat of passion are less morally blameworthy than those who kill in the absence of such influence. They don't act from a bad or corrupt heart but from passion to which even good men are subject. It's a concession to human weakness.

a. The actor must not have had a reasonable opportunity to cool off, sudden heat of passion and

a. There must be a causal link between the provocation, the passion and homicide.

1. Involuntary Manslaughter

a. Criminal Negligence

i. When a person commits an act without due caution and circumspection and unaware that they're taking a substantial and unjustifiable risk to human life

i. A gross deviation from the standard of care that reasonable people would exercise in the same situation.

Ex- State v. Williams- parents let baby died, didn't know how sick she was

A. Unlawful act manslaughter-

1. Accidental homicide that occurs during the commission of an unlawful act not amounting to a felony ex. traffic violations

1. Felonies not under the felony murder rule

1. Vehicular Manslaughter (in California)

Driving with gross negligence, or

Driving without gross negligence

i. Common Law- no degrees. But did distinguish between intentional and involuntary.

i. Modern(Pennsylvania Model)- Murder in the second degree (involuntary)

 

A. Division of Murder Into Degrees (Pennsylvania Model):

i. Ask whether a murder has occurred (analyze whether 1/4 states of mind are present to determine malice)

i. 1st degree?

1. Murder committed in a statutorily specified manner and merits the stiffest penalty (by mean of poison or lying in wait)

1. A willful deliberate and premeditated killing

a. Willful-a specific intent to kill

a. Deliberate-

i. Some courts say it's a synonym for "intentional" or

i. Some courts say it means, "To measure and evaluate the major facets of a choice or problem", weighing the pros and cons of committing the action-"cold blooded, free from passion", takes time. If you deliberated, you premeditated. (State v. Guthrie)

a. Premeditation- to think beforehand, quantity of time

i. Majority of courts say it may be no more than a brief moment of thought

i. Minority of courts say it takes some appreciable time, must have time to turn the matter over in her mind and to give the matter at least a second thought. (State v. Guthrie)

a. Policy-One who acts deliberative and premeditated they think is generally more dangerous, more culpable and less capable of reformation than one who kills on impulse. Generally if someone thinks about it beforehand he is more culpable.

1. Felony murder-Murder that occurs during the perpetration or attempted perpetration of a statutorily enumerated felony (BARRM/KSS) malice is deemed (People v. Fuller,defendants robbing cars, driving away, ran red light, smashed into car)

i. 2nd degree?- any killing that is not specified as first degree murder constitutes 2nd degree.

Types:

1. not premeditated and deliberate murders,

1. reckless depraved heart killings(inferred malice), (Berry, pitbull kills child next door, antisocial purpose of guarding marijuana plants)

1. Felony murder- not specifically listed in the first-degree section of the murder statute. Malice is implied from the intent to commit the underlying felony. Midgett, People v. Howard( kills while fleeing police, pulled over for having a stolen car, smashes into car, applies felony in the abstract)

Test for 2nd degree felony murder (CA):

a. a homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (People v. Howard)

i. felony in the abstract--whether the felony by its very nature cannot be committed without creating a substantial risk that someone will be killed OR

i. view of the manner in which the crime was committed on the present occasion

 

1. If a person intends to cause grievous bodily injury to another, but death results.

Grievous bodily injury- substantial risk of death, extreme physical pain, disfigurement, impairment of a function

 

I. Voluntary Manslaughter-

The passion must have been the result of adequate provocation

i. Objective-Provocation is adequate if it would cause an ordinary man in the actor's situation to lose control of his actions and reason, making you incapable of cool reflection,

i. Subjective-allows room for the actor's gender, religion, race, culture, height, weight. This subjectivizes the reasonable/ordinary person standard.

Policy- This law runs the risk of triviliazing the normative anti-killing message of the criminal law by permitting juries to evaluate prokvoked killers on the basis of values generally considered abhorrent in American society.

 

I. Involuntary Manslaughter- unintentional homicide without malice

A. Criminal Negligence

1. When a person commits an act without due caution and circumspection and unawre that they're taking a substantial and unjustifiable risk to human life(State v. Hernandex-drunk driver hits car and kills someone)

1. A gross deviation from the standard of care that reasonable people would exercise in the same istuation.

A. Accidental homicide that occurs during the commission of an unlawful act not amounting to a felony ex. traffic violations

➢ Felony-Murder & Misdemeanor-Manslaughter

▪ The death must occur a “year and a day” from the day on which the felony occurred

▪ First Degree Felony-Murder

1. Must be a death proximately caused by the commission or attempted commission of a felony enumerated by statute of the jurisdiction (or any inherently dangerous felony, if jurisdiction doesn’t distinguish first degree and second degree felony-murder)

2. Majority rule-Death must have been a foreseeable result of the commission of the felony. Courts have been willing to find most deaths foreseeable.

Minority- no foreseeability requirement, requires only that the felony be malum in se(inherently immoral)

3. Strict liability offense; malice need not be considered but is implied by commission of the felony, extends to accomplices

4. Defendant must be guilty of the underlying felony, if he has a defense to the felony, he has a defense to felony murder

5. People v. Fuller-thieves robbing cars ran a red light and killed someone

▪ Second Degree Felony-Murder

1. A death proximately caused by the commission of an inherently dangerous felony (not one of the jurisdiction’s enumerated felonies)

People v. Howard – Supreme Court of California (2005)

2. Strict liability offense; malice need not be considered but is implied by commission of the felony

3. Defendant must be guilty of the underlying felony

4. The death must have been a foreseeable result of the felony

▪ Misdemeanor-Manslaughter

1. A death proximately caused by the commission of a misdemeanor which doesn’t rise to the level of a felony.

2. Strict liability, but lesser offense than felony-murder

▪ Defense to Felony Murder Rule-

1. Inherently dangerous felony limitation?- many states limit the rule to homicides that occurred during the commission of a felony dangerous to human life.

a. Abstract rule- whether the crime by its very nature cannot be committed without creating a substantial risk that someone will be killed. A high probability death will result.

Rationale- It would be unfair to charge someone for murder that he would never have foreseen. The crime intended was not inherently risky.

Ex- theft, false imprisonment, trespass to property aren't inherently dangerous, (People v. Howard- used abstract rule and ruled fleeing the police is not an inherently dangerous act)

 

a. Facts of the case rule- consider the facts and the circumstances of the particular case to determine if such felony was inherently dangerous in the manner and circumstances in which it was committed.

Rationale- the abstract rule ignores the goal of deterring dangerous conduct

a. But both rules bring felony murder very close to extreme recklessness. The way they're different is that depraved heart murder requires a conscious risk taking and it's theoretically possible that a felon will be unaware of the dangerousness of her actions.

1. Is it an independent felony? (Merger) Limitation- the felony murder rule only applies if the predicate felony is independent of the homicide. If the felony isn't independent, the felony merges with the homicide and cannot serve as the basis for a felony murder conviction.

Ex- D negligently kills V. This constitutes involuntary manslaughter, and D would seeminlgy be guilty of murder under the felony murder rule, but the merger doctrine prevents this.

a. If no doctrine, there could never be an involuntary/voluntary manslaughter conviction.

a. Most jurisdictions hold that felonious assault or battery may not serve as the basis of felony murder.

a. A felony doesn't merge if the act causing death was committed with a collateral and independent felonious design separate from the intent to inflict the injury that caused death.

a. If you have the intent to assault it naturally merges with the homicide because there is no way to convince D to achieve her felonious purpose safely.

a. The purpose of this rule is to deter harmful conduct

Mattison- must have intent to kill for merger doctrine to work

Ireland-merger rule applies when th the felony is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.

Hanson- Mattison shouldn't apply

Robertson- Mattison applies, man who shot thieves didn’t intend to kill them, only scare them so not felony murder

2. Does it violate the Res Gestae requirement?- in order for the felony murder rule to operate the homicde must occur within the res gestae of things done to commit the felony.

a. Time- the res getase period typically begins when the actor has reached the point at which she could be proesecuted for an attempt to commit the felony and

b. Distance- it continues at least until all of the elements of the crime are completed. Lasts even while shes fleeing the scene until she reaches safety.

The important question is when the killing conduct occurred and not when the death itself ensued.

c. Causation requirement- Must be a causal relationship between the felony and the homicide. The felonious nautre of the conduct caused the death.

3. Is there a killing by a non- felon?

a. Agency theory- the felony murder rule doesn't apply if a victim to the crime or a police officer, rather than a felon personally commits the homicidal act. You have to be involved in the killing to be held responsible, defendant or defendant’s agent. (Majority rule- State v. Sophophone, felon shoots at cop, cop shoots felon, is felon’s accomplice liable? No, it’s a cop’s duty)

1. Exception- A person is responsible for the acts of another if the actor shooter is functioning as an agent of the non-shooter. (When he's an accomplice- your acts are my acts).

1. Rationale- Has no deterrent effect if the shooter is a nonfelon defending himself

 

a. Proximate cause theory(minority)- A minority of courts hold a felon is liable for any death that is the proximate result of the felony, whether the shooter is a felon or a third party. He could be the driver. You have to be involved in the entire crime to be held responsible.

❖ Model Penal Code- no degrees of murder

1. Murder- a homicide constitutes murder when the actor unjustifiably, inexcusably and in the absence of a mitigating circumstance, kills another, min of 1-10 years and max of death/life imprisonment

a. Purposefully or knowingly or

a. Recklessly under circumstances manifesting extreme indifference to the value of human life (extreme recklessness, depraved heart murder) (malice is inferred)

1. Felony murder constitutes as extreme recklessness if it's one of the felonies in the statute (malice is deemed as a matter of law) (People v. Fuller- robbery leads to death by car)(Berry v. Superior Court-bulldog kills child)

1. Manslaughter-2nd degree

a homicide constitutes manslaughter if an actor, min of 1-3 yrs and max of 10 yrs.

a. Recklessly kills another or

a. Kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of "extreme mental or emotional disturbance" (subjective) for which there is a "reasonable explanation or excuse" (objectives)

1. EMED-(subjective)- it's enough that the defendant experienced intense feelings sufficient to cause loss of self control at the time of the homicide

a. Sudden heat of passion (much expanded form)

a. Partial responsibility (diminished capacity)- whether there is a reasonable explanation or excuse for the defendant's EMED that caused him to take life

1. "Reasonable explanation or excuse" for the EMED(objective)- There must be a reasonable explanation or excuse for the EMED that caused the actor to kill, not for the homicide but for the EMED, reasonableness is determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. (People v. Cassassa).

1. Negligent homicide-3rd degree murder, involuntary manslaughter at common law

Def- a person inadvertently creates a substantial and unjustifiable risk of which he ought to be aware

a. His failure to perceive the risk must be a gross deviation from the standard of care that a reasonable person would observe in the actor's situation

a. 1-2 yrs, max of 5 yrs. (State v. Hernandez- man kills someone drunk driving)

b. Causing or Assisting Suicide

 

a. Differences-

1. Much broader than common law provocation defense

1. No provocation act is required to trigger the EMED defense, doesn’t have to be sudden

1. Can bring the defense as long as you believe the actor was responsible for the EMED

1. no degrees of murder,

1. abandons malice aforethought,

1. criminal negligence for manslaughter is not found in the Code, they believe nobody should be convicted of an offense as serious as mansalughter in the absence of subjective fault(conscious disregard of a substantial and unjustifiable risk

▪ Felony-Murder Policy Debate

1. Deterrence

• Pros: dissuades use of violence if felons know they may be charged with murder, severe punishment deters felonies

• Cons:

➢ Accidental killings; how can an accident be deterred?

➢ Felons may likely not know about rule or believe anybody will die, thus not a deterrent

➢ Serious crimes are not deterred by varying weight of punishment

➢ Would better serve to strike harshly at the felony for which felon has control over

2. Transferred Intent

• Cons:

➢ Intent to commit felony is transferred to killing (“fictional” intent)

➢ No burden for the state to prove malice

3. Strict Liability

• Pros:One who commits bad acts cannot complain about punishment for consequences

• Cons: Law punishes guilt, but objectively. Punishment should be by degree of culpability

❖ Property Offenses

➢ Larceny

▪ Elements of Larceny

1. A taking (caption) – must take possession, destruction or movement is not sufficient

2. And carrying away(asportation)

3. Of tangible personal property

4. Of another

5. By trespass (without consent)

6. With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property (Intent to steal)

A. Trespass-occurs if one takes possession of the victim's personal property without consent (State v. Topelewski-employer practically gives the barrels of meat to the man, no trespass)

A. Taking-must take possession. Depends on this.

1. Possession

i. Actual-person is in physical control of it

i. Constructive-person is not in physical control of it but nobody else has actual possession of it, either:

1) because the property was mislaid or

2) because another person has mere "custody" of it. Custody- a person has physical control over property but his right to use it is substantially restricted by the person in constructive possession of the property. Misappropriating it is larceny. Rex v. Chisser- woman lets man hold ring to look at it, takes off, he only had custody not possession, it’s larceny

Custody Test:

a. He must have temporary and extremely limited authorization to use the property and

a. received the property from his employer for use in the employment relation

a. He is a bailee of goods enclosed in a contrainer or

a. He obtained the property by fraud

1. Courts must ask themselves:

i. Who initially had possession of the property that allegedly was stolen? Always ask this first!

i. Whether, when and to whom was possession transferred?

i. If the person did obtain possession from another, you ask whether the possession occurred trespassorily or lawfully?

B. Carrying away(asportation)-any movement of the property-- even a hair's breadth away from the point of caption is sufficient. Must be a carrying away motion not an up and down motion. Up and down would be attempted larceny

C. Intent to steal-intent to deprive another rperson permanently of the property. It is not significant that the defendant intended to obtain personal benefit from the taking.

Courts will frequently uphold a larceny conviction for recklessness-he knew his conduct would create a substantial risk of permanent loss

People v. Davis- man attempts to sell shirt he never bought back to Mervyns- Court ruled intent to take permanently is not rigid, but flexible, intent to steal was found here

D. Concurrence of mens rea and actus reas- must have intent to steal at the time of the actus reus. Must have it at the moment he takes possession (stole it).

A. Continuing Trespass Doctrine-when a person takes possession of another person's property by trespass, every moment that he retains possession of it constitutes a new trespassory taking that continues until he terminates possession of the property. (This way, the intent to steal can happen concurrently with"new" trespassory taking.

▪ 5 Exceptions where a person doesn’t hold possession(all others hold possession)-

o Custody-Limited authorization by the owner to take hold of the object

Ex.-walk into a store try on pants, store hold constructive possession

o Employee gets custody, employer retains constructive possession. Exception-Doesn't work when someone else gives something to the employee to give to the employer.

o Bailees- mailing a package through FedEx. FedEx has possession of the package, but the contents of the package are still the original owner's, FedEx only has custody of them

o Fraud, larceny by trick (Rex v. Pear, man rents horse for the day, sells it)

o Finders of lost property, original owner has possession

▪ Keeping lost/found property is larceny when-

i. If there is a reasonable clue to ownership), which exists when:

a. Knows to whom the lost property belongs or

a. Has reasonable ground to believe from the nature of the property or the circumstances under which it is found, that if he deals honestly with it the owner will appear or be ascertained AND

i. The finder intends to take them anyway and appropriate them to his own use

Brooks v State- man finds a wad of bills and leaves town, larceny found

ii. Owner has possession unless it is abandoned property

▪ Defense of Larceny

1. Claim of Right- good faith belief, honest belief you had a right to it, no intent ex.- someone owes you $5,000, so you steal the tv

2. Intent to Borrow- People v Brown- boy took bicycle temporarily, held to be trespass only

3. Intent to Obtain Repayment of Debt

4. Abandoned Property- has to be no clue to ownership

5. Not tangible property- People v. Lund- using computer time not tangible, not larceny

▪ Model Penal Code Theft

1. Some jurisdictions combine larceny or similar property crimes into a single consolidated theft statute, modeled after MPC § 223.1

➢ Embezzlement

▪ Elements of Embezzlement

1. A non-trespassory (fraudulent)

2. Conversion

3. Of the personal property

4. Of another

5. By a person who has been entrusted with that property (lawful possession)

▪ Distinguished from Larceny

1. Property obtained while the defendant has lawful possession of it – Larceny involves wrongful possession. (Rex v. Bazeley- employee put bank check in pocket before depositing it in bank, bank never had possession only title so no trespass, employee had legal possession but then misappropriated it),

2. employees only have custody (larceny), managers, supervisor have possession (embezzlement)

3. Misappropriation by intentional conversion (dealing with the property in a manner inconsistent with the trust arrangement to which he holds it) – Larceny requires caption and asportation with the intent to permanently deprive

▪ Defense of Embezzlement

1. Claim of Right- good faith belief you had a right to it

2. Intent to Restore Exact Property Taken

➢ False Pretenses- larceny by trick but victim gives title

▪ Elements of False Pretenses

1. Title is obtained

2. To personal property of another

3. Through intentional (or knowing) false representation of past or existing facts (express or implied)

4. With intent to defraud the other

5. The owner was in fact defrauded in that he parted with his property in reliance upon the representation, was a major factor (People v. Whight- Safeway relied on Whight’s representation that by using a card in the atm, he had money in his account)

▪ Title

1. Title must be surrendered by victim

2. If victim is tricked into only giving up possession (by a misrepresentation of fact), then it is “larceny by trick”

▪ Defense of False Pretenses

1. Claim of Right

2. Representation constituting only an opinion or a “puffing” is not a sufficient representation

3. Misrepresentation relating to what will occur in the future is not sufficient

▪ People v. Whight – California Court of Appeal, Third District (1995)

▪ Difference between Larceny by trick and false pretenses:

o Larceny by trick- appropriation of property the possession of which was fradulently acquired

o Larceny by false pretenses- fraudulent or deceitful acquisition of both title and possession. The defendant attempts to defraud and the owner is in fact defrauded. The injured party induced to part with his property in reliance on the false representation.

❖ Model Penal Code-

Grand larceny (more than $500)- felony

(betwn. $50-$500)- misdemeanor

Petit larceny(less than $50)- misdemeanor

-Doesn't require proof of asportation and has been amended by most states.

-Covers all property (anything of value) including immovable property, such as real estate and movable property, including things growing on or found in land.

-Property of another broadly includes property in which any person other than the actor has an interest-includes a possessory or ownership interest.

❖ Robbery- aggravated form of larceny + property taken by force/threat of force

1. A trespassory taking

2. Of personal property of another;

3. From the other person’s person or presence;

4. By force or intimidation (must be a threat of serious bodily injury/death to victim or family member, subjective fear)

5. With the intent to permanently deprive him of it

❖ Burglary CL

1. A breaking- some type of minimal force, or fraud, threat/intimidation (not for M)

2. And entry- any part of the body inside the structure, even 1 foot for a second

3. Of the dwelling- used for sleeping purposes (not M)

4. Of another

5. At nighttime (abandoned in some jurisdictions)- sunset to sunrise (not M)

6. With the specific intent of committing a felony

❖ Receipt of Stolen Property (intent in knowledge)

1. Receiving possession and control;

2. Of stolen personal property

3. Known to have been obtained in a manner constituting a criminal offense

4. By another person

5. With the intent to permanently deprive the owner of his interest in the property

Summary of Crimes Against Property

|Property Offense |Act |Intent |

|Larceny |Wrongful taking of property from the possession|Specific Intent to permanently deprive owner of|

| |of another |possession |

|Embezzlement |Conversion of property by a person already in |Intent to defraud |

| |possession of the property | |

|False Pretense |Wrongful taking of title to property by |Knowledge of falsity of the misrepresentation |

| |misrepresentation to the owner |and intent to defraud owner |

|Robbery |Wrongful taking of property from victim’s |Intent to obtain property through wrongful |

| |person or presence by violence or intimidation |threats |

|Burglary |Breaking and entering of the dwelling house of |Intent to commit a felony |

| |another in the nighttime | |

|Receiving Stolen Property |Acceptance of property after it has wrongfully |Intent to deprive owner of property known to be|

| |been taken from another |stolen |

Capital Punishment: Death Penalty for minors

Thompson(1988)- death penalty is inappropriate for kids under 16 because they have a less culpable state of mind, violates the 8th A. (cruel and unusual punishment)

Stanford(1989)- death penalty can be prescribed if over 16

Penry-held at same time as stanford- death penalty can be prescribed for the mentally retarded

Atkins-death penalty for the mentally retarded is not allowed (most recent).

Roper v. Simmons-Roper contends that since Penry was overturned and if the mentally ill cannot be subject to the death penalty his case should be reconsidered for juveniles.

Facts: a 17 yr. old boy planned the murder of a woman. He broke into her house, Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad*557 trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. He bragged about murdering the woman the next day, and the police took him from school. At trial he was tried as an adult. They determined it involved depravity of mind and was wanton, vile, and inhumane.

Arguments against the death penalty for juveniles:

Seventeen year old murdereers must be categorically exempted from capital punishment because they cannot reliably be classified among the worst offenders. Because:

1. Juveniles lack maturity and responsibility and are more reckless than adults- makes their behavior less morally reprehensible as that of an adult

1. Juveniles are more vulnerable to outside influences because they have less control over their surroundings.

1. Juvenile's character is not as fully formed as that of an adult--they're subject to reform. They haven't formed their identities yet you can't contribute even a heinous crime to "irretriveably depraved character". These qualities are transient.

2. Juveniles are less likely to be deterred by the death penalty because they don’t do a cost benefit analysis before they commit a crime.

3. A majority of states have rejected the dp for juveniles. 5 states have abandoned the d.p. for juveniles since stanford. There is consistency in the direction of change. CP hasn’t been reinstated either.

4. No other countries in the world allow the death penalty for juveniles, so they said they’d take that into account.

5. Yes this 17 and under rule is fuzzy, some that shouldn't be found guilty will and some that should be guilty won't be. You can never get it perfect, there is a tradeoff in trying to get at what you're trying to get at the closest. But you have to draw the line somewhere

O’Connor dissent- Believes there must:

1. Be a clear showing that a genuine national consensus forbids the execution of juvenile offenders and there is not one here(must defer to legislatures and juries, not the judiciary’s job).

Over 70 juveniles on death row from 12 different states

1. The moral proportionality arguments against the juvenile death penalty, is weak, 18 is too broad a category and encompasses so many different maturity levels, maturity should be determined on a case by case basis, we shouldn’t have a blanket rule for the d.p.

Scalia dissent- doesn’t believe the constitution is an ever-changing document, should be viewed as how the founders intended it, and they didn’t intend to exclude minors from the d.p.

He doesn't think the constitution should be determined by the subjective views of five members of the court and like-minded foreigners. Believes the court decided with their own judgments that murderers younger than 18 can't be as morally culpable as older counterparts. If the constitution is an ever changing document as the majority says, it should look to the norms of society, not their own views. Prior cases and the fact that less than 50% disapprove of the d.p. for juveniles shows there is no national concensus.

International law-

Majority- said that int’l law was not controlling but reinforced the majority’s decision.

They want the United States to look toward international law as a guide in deciding the case because it shows evolving standards of decency. They want the US to consider the fact that no countries allow capital punishment anymore.

Scalia- we’ve been ignoring int’l law in some areas and using it in others for what we want. If we’re going to use it we should use it consistently and not pick out our friends or the views we like. We’re using it as a one way ratchet to expand rights, shouldn’t that mean we should be taking away rights too?

They also tell them that capital punishment for juveniles is so disapproved of internationally that it's jus cogens- "a rule of international law which cannot be set aside by treaty or acquescence but only by the formation of a subsequent customary law of contrary effect." All countries are bound by it because they derive from fundamental values held by the international community.

For much of us history, the courts generally interpreted the cosntitution and other laws with the idea in mind that complaince with int'l law is a court constitutional value, it's one of the reasons we instituted the constitution. The original understanding really was that looking at int'l law is important. This idea did start to fade once the US became more powerful, 20th C attitude that you didn't see in the 18th and 19th century. What the courts did here by looking at int'l law is what the founding fathers actually intended.

Human dignity argument-At the core of the 8th Amendment is human dignity, we don't have a monopoly on determining what is human dignity, other people out there have something to say about it and we shoudlnt' close our eyes to it.

Int’l law did play a big part in this decision-Scalia says the fact that they mentioned int'l law at all, shows it made a difference, because they shouldn't have mentioned it at all if it didn't.

All the arguments of the majority could have been used to argue for an age limit of 21, but they chose to limit it to 18 because of int'l consensus. Int'l consensus had a wave toward a child as being 18 and below.

The majority was embarrassed to be in the same boat as Somalia and Yemen.

Everytime the US tries to talk about human rights issues with other countries, they just come back to us telling us that we allow the death penalty for children and the mentally retarded so we shouldn't bug them about their human rights issues.--was very persuasive to the majority opinion.

Life without parole for juveniles-

Graham v. State Florida

Facts-Graham committed two robberies, the first he robbed a bbq joint and hit the owner over the head with a metal bar. He was given 3 years and community service, immediately after being released he committed a second robbery at a house with guns, put house owner on the floor and locked them in the closet. His accomplice was killed and he drove him to the hospital with the other accomplice and then fled by car, a detective followed him and eventually caught him. There were three revolvers in his car. Graham admitted that he was involved in 2-3 robberies before that night. Even after a lot of witness testimony, and finding guns in his car and his admission to three robberies earlier, Graham would not confess to the murder. Said they mistakenly identified him and he didn’t know how guns got there.

Issue-Whether the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’scommission of a non-homicide.

Reasoning-(district court) the Judge said they tried to help him get back on his feet and his further robberies proved he wasn't going to try and there was nothing to deter him. If there is nothing they can do to deter him, the judge has to think about the community and protecting them.

States have broad flexibility in deciding what mix of retribution, deterrence, and rehabilitation they want to use in their justice systems, and broad deferrence as to how they deal with juveniles as well. They only have to look interjurisdictionally, not at other states

View against life without parole-Children should at least have the right to review. Life without parole assumes you can determine right now whether they can be rehabilitated 20-30 down the road. The truth is 20-30 yrs down the road is going to give you better idea of what the rest of his sentence should be. Plus same arguments for why children should be excluded from the d.p.

International law issue-Reliance on international norms is “not controlling” and that, “[w]hile the weight given the international community is persuasive,” the sentencing regimes of state legislatures will generally be upheld if they are otherwise constitutional.

Finally, consideration of international law is unwarranted because no national consensus exists

disfavoring the sentence of life without parole in these circumstances.

❖ Inchoate Offenses- an offense committed prior to and in preparation for what may be a more serious offense.

➢ Attempt and solicitation merge with the crime, can’t be convicted of the crime and solicitation/attempt

➢ Can be convicted of both conspiracy and the principal crime

➢ Solicitation- a misdemeanor, an attempted conspiracy

▪ Elements of Solicitation

1. Inciting, counseling, advising, urging, demanding, or commanding another to commit a crime; AND

2. With the intent that the person solicited commit the crime (specific intent)

State v. Mann – Supreme Court of North Carolina (1986)

3. The offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation. MPC § 5.02

State v. Cotton – Court of Appeals of New Mexico (1990)

▪ Merger

1. Solicitation merges with the completed crime for prosecution

2. An accused cannot be convicted of both, Solicitation and the principal offense

▪ Defenses- Impossibility of the crime is not a defense

Withdrawal is no defense, once it’s been made, it doesn’t matter if the solicitor changed his mind

Model Penal Code- broader than common law

1. The actor’s purpose is to promote or facilitate the commission of a substantive offense and

2. With such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission.

3. Granded at the same level as the target offense.

Differences from common law:

1. It applies to the solicitation of all crimes and not simply felonies or serious misdemeanors

2. Can solicit someone to engage in specific conduct that would cosnitute an attempt to commit a crime.

3. The relationship need not be that of accomplice to perpetrator.

4. Can request someone to engage in specific conduct that would establish complicity in it commission or attempted commission.

5. An uncommunicated solicitation, an attempted solicitation at common law, is itself a solicitation under the Code.

Attempt-act done with the intention of committing a crime but falls short of completing it.

▪ Common law

1. An intent to do an act or cause results that constitute a crime

2. Requires proof of intent to commit the specific target offense

2 types of intent:

• Must intentionally commit the acts that constitute the actus reus of an attempt and

• She must perform these acts with the specific intention of committing the target crime, even if the target offense is a general-intent crime. People v. Gentry- man did not have the specific intent to kill his wife when he poured gas on her and she went near the stove.

3. Required culpability:

• Common Law: Attempt only applies to specific intent crimes, can’t attempt negligent crimes

• Model Penal Code: Only for purposeful or knowing crimes. MPC § 5.01

4. An act that goes beyond mere preparation toward commission of the offense (perpetration)- the farther along you get in committing the crime, the better chance of being charged with attempt

▪ MPC view:

5.01(1) 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. (Complete acts with conduct requirement, but no result requirement) purposefully engages in conduct that would constitute the crime if the circumstances were as he believed them to be.

b. (Complete acts with result requirement) does or omits to do something with the purpose of causing the result, or with the belief that it will cause the result.

c. (Incomplete attempts) purposefully does or omits to do something which is a substantial step toward the commission of the crime, or would be a substantial step if the circumstances were as he believed them to be. Must have purpose toward the results.

(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative (considered in light of all the circumstances, like her intent etc) of the actor's criminal purpose.

Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, the jury is entitled to evaluate whether the defendant has taken a substantial step and if jury convicts it can’t be overturned for being insubstantial. (2)

(a) lying in wait, searching for or following the contemplated victim of the crime;

(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

(c) reconnoitering the place contemplated for the commission of the crime;

(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;

(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

(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.

How to analyze attempt crimes under the MPC:

1. determine whether it is a complete or incomplete attempt crime

2. If it’s a complete attempt, is it a conduct or result crime

3. then determine whether it is a conduct or result crime

Consider whether the elements of attempt can be proven by answering the following questions:

• did D intend to commit the object crime and have the intent necessary for that crime?(mens rea)

• did D proceed far enough beyond preparation towards the commission of the crime?(actus reus)

❖ Subjectivism (MPC)- in determinig guilt and calibrating punishment, the criminal law and attempt law in particular should focus on an actor's subjective intentions(her mens rea) which show the dangerousness and bad character rahter than focus on her conduct.

Favor conviction on the basis of the defendants' mens rea.

Punishment-Generally they favor equal punishment for attempts and attempts that succeed.

 

❖ Objectivists(Common Law) - believe that conduct should not be punished unless its criminality is objectively discernible at the time that it occurs. A neutral third party observer must recognize the activity as criminal even if she had no special knowledge about the offender's intention.

Favors conviction on the basis of their conduct alone.

Punishment-If the attempt doesn't succeed the punishment shouldn't be equal

❖ Actus Reus

▪ Tests for Attempt (may not need to analyze under all tests in detail)

▪ Tests focusing on what remains to be done (Common Law)-

1. Substantial Step Test (Physical Proximity Doctrine, MPC)

• The overt act required for an attempt must be proximate to the completed crime, or

• Directly tending toward the completion of the crime, or

• Must amount to the commencement of the consummation

• Take these into account: the seriousness of the crime, the time and place at which it is to occur, and

the uncertainty of the result,

□ actor has it within his power to commit the crime immediately

• State v Reeves- girls have rat poison in purse to kill teacher, found guilty under MPC 2(e)(f) for possessing materials to be used only for the crime, therefore could be looked at under the substantial step test.

2. Control over all indispensable elements test: some courts hold that one must go far enough to have obtained control over all the factors that are indispensable to the commission of the crime; thus, nothing must be left undone that would prevent D from committing the crime

3. Dangerous proximity test: Justice Holmes’ test; the greater the gravity and probability of the offense and the nearer the act to the crime, the stronger is the case for calling the act attempt

• Courts must consider the nearness of the danger, the greatness of the harm, and the degree of apprehension felt

• People v. Rizzo – Court of Appeals of New York (1927)-boys drove in their car looking for Rao to steal his payroll but were stopped by police who were tailing them, not attempted robbery b/c they never had the opportunity to commit the crime, used both tests above

4. Res ipsa loquitor test: provides that an act amounts to attempt only if the act, when considered alone, firmly shows the actor’s intent to commit the crime; D’s behavior is considered without reference to other evidence that may demonstrate criminal intent (such as a confession); the act constituting attempt must “speak for itself” in establishing intent

• People v. Miller- the attempt must include some direct act or movement in execution of the design, as distinguished from mere preparation. Acts of preparation are equivocal (uncertain) and they must become unequivocal (certain) before the act becomes one which may be said to be a commencement o the commission of the crime. Used only in SOME jurisdictions

5. Probable Desistance Test,- focuses on how much remains to be done

• The conduct constitutes an attempt if, in the ordinary and natural course of events,

• Without interruption from an outside source,

• It will result in the crime intended

▪ What has already been done:

6. Abnormal step approach: any attempt is a step toward a crime which goes beyond the point where the normal citizen would think better of his conduct and desist

▪ Defenses to Attempt

1. Impossibility- if legal impossibility it’s a defense, but not for factual impossibility

• Legal Impossibility

➢ Pure legal impossibility (all courts recognize as a defense)

➢ Goal is legal – When criminal law does not prohibit the conduct or result sought to be accomplished (Defendant believes an act is criminal, but it is not)

➢ Example: Thinking you had sex with a 15 yr. old but really she was over 18

• Hybrid Impossibility (pretty much the same as factual impossibility)

➢ Hybrid (legal and factual component)- not available under MPC

➢ Goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense.

➢ Example: Attempted forgery by changing numbers not letters on a check and it isn’t cashed, shoots a corpse/stuffed animal thinking it’s alive.

➢ Ultimately any case of hybrid legal impossibility may reasonably be characterized as factual impossibility

• Factual Impossibility is NOT generally a Defense

➢ Person intends to commit a crime, but fails because of mistake in attendant circumstances

➢ Even though factual impossibility may be a defense against conviction for the target offense, it does not prevent an attempt conviction

People v. Thousand – Supreme Court of Michigan (2001)-police officer posing as a minor lured a man in a chat room to meet him for sex, telling him he was a minor, when they met at mcdonald’s the officer arrested him--legal impossibility

➢ Examples of No Defense:

▪ Shoots with intent to kill, but gun is not loaded

▪ Attempted murder by sending a lock of judges hair to voodoo priest for a spell

• Inherent Factual Impossibility May be a Defense in a Minority of Jurisdictions (1 right now)

➢ Defendant engages in conduct while mistaken about certain attendant circumstances; &

➢ Had the circumstances been as he believed they were, what he set out to do would be a crime; however because the circumstances were otherwise, it will not actually be a crime.

Ex- attempting to sink a battleship with a pop-gun (could never happen)

Voodoo doctor who believed his hex would kill the target victim

| |Legal impossibility |Factual impossibility |Inherent (factual) impossibility |

|Common Law |Defense |No defense |A defense in only 1 state, but it |

| | | |may fail actus reus of CL crimes |

|Model Penal |No defense; but 5.01 requires |no defense; guilty if the |No defense; however, when unlikely|

|Code |actor to intend to do something|facts or conditions had |to cause harm, court can downgrade|

| |that is crime; if it turns out |been as he believed them to|offense or dismiss prosecution. |

| |not a crime, he is not guilty |be | |

| |of attempt | | |

2. Abandonment

• Traditionally, may not renounce the attempt

• But the modern trend is to allow renunciation (as in the MPC)

Commonwealth v. McCloskey – Superior Court of Pennsylvania (1975)- Prisoner attempted to escape but then decided not to. He was thus in a position to abandon the criminal offense of attempted prison breach voluntarily

• Felony Murder- Because a criminal attempt requires specific intent and a conviction for felony-murder does not require a specific intent to kill, attempted felony murder is not a crime. Bruce v. State- man tries to steal from grocery store and shoots worker, not attempted murder because he was committing a felony (robbery)

▪ Merger

1. Attempt merges with the completed crime for prosecution

2. An accused cannot be convicted of both, Attempt and the principal offense

▪ Strict liability crimes: although strict liability offenses do not require proof of any mental state, it is sometimes held that proof of intent is necessary for conviction for an attempt to commit a strict liability crime; D must be shown to have acted with an intent to bring about the proscribed result

➢ Conspiracy- may be charged as a separate offense from the substantive offense

Punishing Conspiracy-

▪ (MPC) Most states punish conspiracies the same as the substantive crime (MPC). But if it’s a felony most states punish the conspiracy less harshly than their substantive crime.

▪ (Old Common law)A minority of states punish conspiracy as a misdemeanor.

▪ Common Law(bilateral)

1. An agreement between two or more people

2. (Mens Rea) With an intent to enter into the agreement to commit an unlawful act (can be inferred from conduct)

3. (Actus Reus)Some jurisdictions require an overt act in furtherance of the agreement

➢ Common law doesn’t require an overt act, just the agreement (minority)

Implied agreement sufficient: the agreement may be implied from the cooperative actions of the parties

▪ thus, one who observes unlawful acts taking place and cooperates in their commission becomes a members of an agreement to carry out those acts, even if the participants never formally exchanged express commitments with each other

▪ People v. Azim- boy stops car along the road and 2 friends in back get out and beat a guy on the road up, get back in the car and drives away- found an inferred conspiracy. Association with alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, and at times, participation in the object of the conspiracy are circumstances relevant to proving conspiracy.

4. (Mens Rea) With the intent/purpose to achieve the objective of the agreement (meeting of guilty minds)

• Can prove specific intent from the words spoken or acts done both before and after an offense, must have specific intent!

➢ People v. Swain- can’t have conspiracy to commit 2nd degree murder b/c that involves implied malice, and conspiracy is a specific intent to commit a crime, so it requires express malice

• Can infer specific intent from information given to Defendant and his subsequent acts

▪ Model Penal Code (unilateral)

A person is guilty of conspiracy with another person(s) to commit a crime if with the purpose of promoting or facilitating its commission he:

• Agrees with such other person or persons 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

• Agrees to aid such other person(s) in the planning or commission of such crime or of an attempt or solicitation to commit such crime

o If person knows the person he conspired with also conspired with someone else to commit the same crime, he is guilty of conspiring with them also

▪ Conspiracy Prosecution Procedures

1. Completion of an unlawful target act is not necessary for guilt for conspiracy

• Allows earlier intervention in conspiracy than for attempt

• As policy, it is assumed that group criminality is more dangerous than individual

2. Knowledge is not sufficient to prove intent to agree and intent to commit crime

3. Hearsay by a conspirator may be admitted against all members of the conspiracy

4. Joint trial usually held

5. Conspiracy may continue even after law enforcement once thwarts it, as long as conspiracy agreement remains in effect

6. Where co-conspirators make one agreement, even to violate several laws, they can be convicted of only one conspiracy

Braverman v. United States – Supreme Court of the United States (1942)

▪ Multiple Parties

1. “Chain” Relationship – One Large Conspiracy

• With a series of agreements regarded as part of a single large scheme, the situation will be regarded as one large conspiracy involving all participants

• The sub-agreements are characterized as “links” in the overall “chain” relationship

2. “Hub-and-Spoke” Relationships – Multiple Conspiracies

• One participant who is a party to a number of sub-agreements, each involving different persons who have little interest in the success of the other agreements

• The common member is the “hub”

• The independent sub-agreements are the “spokes”

• Regarded as numerous independent conspiracies

▪ Pinkerton Rule

1. Conspirator may be liable for the crimes of a co-conspirator if:

• Crimes were committed in furtherance of the objectives; AND

• They were foreseeable

2. Acquittal of a conspirator precludes conviction of a co-conspirator

3. As long as a conspiracy continues, the overt act of one partner may be the act of all without any new agreement specifically directed to that act.

4. Each member of the conspiracy is responsible for actions of co-conspirators of which they have knowledge with the intent that these additional crimes may occur(foreseeable)

Pinkerton v. United States – Supreme Court of the United States (1946) 2 brothers conspired to commit tax fraud, only 1 brother committed the substantive offense, but the 2nd brother was convicted of conspiracy and charged with the substantive act along with his brother

▪ Intent of a Service Provider in joining a conspiracy can be inferred when:

• Volume of goods is disproportionate or serves no legitimate purpose

• Services are regulated and controlled (pharmaceuticals, for example), and the service provider knew the services/goods were to be used for criminal activity

• Service provider has a stake or interest in the criminal venture

Crime must be a felony

Both knowledge of the illegal use and intent to further the illegal use are required to support a conviction for conspiracy.

• People v. Lauria – California Court of Appeal, Second District (1967)- man knew his answering machine service was being used by hookers in their business and didn’t report it, not conspiracy b/c insufficient evidence he intended to further their business

▪ Feigned agreement by one party cannot hold one liable under conspiracy, must be an agreement by 2 people (bilateral) People v Foster- man feigned agreement to a solicitation of robbery, found no conspiracy

• Opposite for MPC, will convict if one party feigned agreement (unilateral)

▪ Defenses to Conspiracy

1. Wharton’s Rule: Some crimes have to be committed by people acting in concert (i.e. adultery, bribery, incest, dueling etc.). Agreement to commit these crimes, which do not directly affect society, is not conspiracy.

Note: The Model Penal Code rejects Wharton’s Rule

• Third party exception- if more than the minimum number of persons necessary to commit an offense agree to commit the crime, Wharton's rule is not triggered.

• Legislative Exemption Rule- goal of the legislature to stop that crime trumps wharton’s rule Ianelli- 5+ men started illegal gambling business in violation of a statute prohibiting it by 5

2. Legislative Exemption Rule:

Example: A victim of statutory rape cannot be guilty of the crime because the statute was set to protect the class that the victim is in

Gebardi-man arranged for woman to be transported by train to another state to have sex with her, man innocent, can’t conspire w/ himself b/c the woman can’t be guilty, goal was to protect her and she consented

3. Renunciation of Criminal Purpose is a complete defense when a conspirator voluntarily thwarts the success of the conspiracy with complete renunciation of his criminal purposes and communication to his co-conspirators. MPC § 5.03(6) People v. Sconce- Defendant planned killing but called it off, a defense

4. Abandonment: If an individual conspirator abandons the agreement, the conspiracy is terminated as to him only if and when he advises his co-conspirators or law enforcement. MPC § 5.03(7)

5. Impossibility is NOT a defense to conspiracy for MPC or common law

▪ Termination of Conspiracy

1. A conspiracy terminates upon the completion of the wrongful objective. MPC § 5.03(7)

➢ Merger

▪ When a lesser crime “merges” into a greater one

▪ Example: When one beats someone to death and is charged with murder, the lesser crimes of assault and battery are merged into the criminal homicide

▪ No merger among offenses of the same degree (e.g. several felonies or several misdemeanors)

▪ In America: No merger for unrelated crimes except for the merger of Solicitation or Attempt into the Completed Crime

❖ Accomplice Liability

➢ Accomplice Liability is Not a Crime

▪ It is a means to punish non-perpetrators involved in the crimes of others

▪ Underlying crime must have actually occurred for one to be held liable as an accomplice

➢ Common Law Accomplice Liability- 2+3 only count as accomplices!!!

▪ Parties to a crime at common law include:

1. Principal in the First Degree: Perpetrator, engages in the act or omission

2. Principal in the Second Degree: at the scene aider, aided and encouraged the principal

3. Accessory Before the Fact: Pre-crime aider

4. Accessory After the Fact: Post- crime aider, Defendant who, with knowledge that the other committed the felony, assisted to escape punishment after the crime

▪ Modern view- the principal doesn’t have to be convicted for an accessory to be convicted.

Must prove: (People v. Genoa)

1. The underlying crime was committed by the defendant or some other person and

2. that the defendant either committed or aided and abetted the commission of that crime.

▪ An aider and abettor may be guilty of a greater homicide-related offense than the actual perpetrator committed. People v. McCoy- an accomplice’s mens rea may be more culpable than the perpetrator’s. The perpetrator’s sentence was reduced to manslaughter, the accomplice was held to murder.

▪ Under common law, the conviction of the principal is required for the conviction of the accessory

➢ Modern Statutes

▪ Modern jurisdictions have abandoned the distinctions between principals in the 1st, 2nd and accessories before the fact (accessories after the fact are still treated separately)

▪ All are “parties to the crime” and may be liable for the criminal offense

➢ Accomplice definition:

1. One who, with the intent that the crime be committed, aids, counsels, solicits or encourages the principal before or during the commission of the crime

2. Those who are principles in the second degree or accessories before the fact are labeled as “accomplices”

▪ Accessory After the Fact: Treated more leniently under modern statutes; usually liable for the less serious crimes of “harboring a fugitive,” “aiding escape” or “obstructing justice”. Crime must be a completed felony.

1. Punishment unrelated to the principal offense (typically 5 years maximum sentence)

2. Exemptions are usually provided for close relatives (common law exempted only the spouse)

➢ Actus Reus- to actively aid, counsel, encourage

Wilcox v. Jeffrey-Magazine writer found guilty to encouraging saxophonist to break the law by working in England when it was against the law. He met him in airport, bought ticket to concert and wrote a laudatory article.

State v. Helmenstein- boy slept in car while friends robbed store, not accomplice because he didn’t aid

➢ Mens Rea – Intent Required

▪ Dual Intent Required for Accomplice Liability:

1. Intent to Aid – To assist the primary party to engage in the conduct that forms the basis of the offense

2. Intent to Assist the crime – Act with intent to promote or facilitate the crime, act with purpose (can be inferred from presence of the first)

State v. Hoselton- to be guilty of accomplice liability you must share the intent of the principal in the first degree (perpetrator). Hoselton wasn’t a lookout b/c he didn’t know his friends intended to steal.

▪ Mere knowledge and presence at the scene of the crime is insufficient for accomplice liability. Vaillencourt stood by and watched friend break into house, didn’t actively aid, requires affirmative acts.State v. Vaillancourt – Supreme Court of New Hampshire (1982)

▪ Can be found an accomplice for aiding negligent or reckless conduct in a majority of states now

1. Must have the intent to assist the primary party to engage in the conduct that forms the basis of the offense

2. The mental state-intent, recklessness, or negligence required of the substantive offense

▪ An accomplice may have a different mental state than the primary perpetrator, and therefore be guilty of a different degree of murder

➢ Scope of Liability

▪ Accomplice is responsible for the crime committed by the perpetrator and for any other crimes committed in the course of the crime as long as

1. The actor intended to commit the primary crime (not the secondary crime), and

2. The commission of the secondary crime was probable or foreseeable of the actor’s participation in the primary crime.

State v. Linscott – Supreme Judicial Court of Maine (1987) Accomplice to a robbery in which one of his crew shot a cocaine dealer is liable for murder b/c the killing was a natural and probable consequences of the crime.

▪ Refusal to intervene does not make one an accomplice, unless there is a legal duty to act

▪ If the law does not permit one to be convicted as a principal, he may be convicted as an accomplice

Example: In common law, a woman may be convicted as an accomplice to rape

➢ MPC-

Forms of liability- A person is legally accountable for the conduct of another person when:

1. Accountability through an innocent instrument if:

a. He has the mental state sufficient for commission of the offense

a. Causes(done something or manipulated) the innocent or irresponsible person to engage in the criminal conduct with the mental state to commit the crime

1. Miscellaneous Accountability- accountable for a person by the law defining the offense (prison escape)

1. Accomplice Accountability-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

1. Solicits such other person to commit it; or

2. Aids or agrees or attempts to aid such other person in planning or committing it; or

3. Having a legal duty to prevent the commission fo the offense, fails to make proper effort to do so

b) His conduct is expressly declared by law to establish his complicity

1. Can be an accomplice to recklessness or negligence-“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 fo that offense, if he acts with the kind fo culpability, if nay, with respect to that result that is sufficient for the commission of the offense”

▪ No natural and probable consequences doctrine, his liability doesn’t extend beyond the purposes that he shares. If another crime occurs from the intended crime, if he didn’t intend it, he’s not responsible.

▪ Can be found an accomplice to reckless/negligent crime

➢ Defenses to Accomplice Liability

1. Innocent Party

• CL-Primary party coerces/deceives an innocent party into committing the crime, then the deceiver is directly liable for committing the crime, he is the primary party.

• MPC-innocent-instrumentality doctrine applies only if D causes X to engage in the conduct in question

Bailey v. Commonwealth-Bailey knew Murdoch was drunk and couldn’t see well and told him to go to the porch b/c he was going to kill him, but instead called the police and Murdoch couldn’t see so he shot at the police. Bailey is a principal in 1st degree.

▪ Withdrawal

• A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice

• Withdrawal must occur before the crime becomes unstoppable. MPC § 2.06(6)(c)

• Repudiation of the encouragement is sufficient to withdraw if the defendant offers mere encouragement

• If the defendant provided some material assistance, withdrawal requires an attempt to neutralize the assistance (e.g. by doing everything possible to retrieve the material provided, or by calling the police)

1. Duress

❖ Self- Defense

Excuse- admits that the deed may be wrong but excuses the actor because conditions suggest that the actor is not responsible for the deed.

 

Justification: if the crime is justified the accomplice gets off too!! Not the same for excuses!

To be justified it must:

1. Be necessary to protect or further the interest at stake (promoting a greater good), and

1. It must cause only a harm that is proportional or reasonable in relation to the harm threatened or the interest to be furthered.

Common Law-

▪ Non-deadly Force

• May be applied by a non-aggressor if reasonably necessary

• To protect oneself

• From the imminent(immediate/urgent) use of unlawful force against him

• No duty to retreat before using non-deadly force

▪ Deadly Force

• May be used in self-defense if one is without fault (non-aggressor)

• You reasonably believe that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor (State v. Norman-abused wife kills husband, not imminent)

1. subjective component- defendant subjectively believed that he needed to use deadly force to repel the imminent unlawful attack

2. objective component-Defendant’s belief must be one that a reasonable person in the same situation (age, past, physical characteristics) would have possessed.

People v. Goetz- used this standard, jury ruled man who shot kids in subway was reasonable b/c he was an older man surrounded by 5 young kids.

Take into account the series of events leading up to the killing and what the defendant knew at the time of the killing (State v. Wanrow) Deadly force is justified even if this belief is false.

• Duty to Retreat:

1. Majority Rule – No duty to retreat

2. Minority – Only sometimes necessary (if safe, when not in victim’s home, while making lawful arrest, where assailant is in the process of robbing the victim)

3. Castle Exception- never a duty to retreat in your own home, defense of property

• Necessity rule- force should not be used against another person unless it is necessary

• Proportionality rule- a person is not justified in using force that is eexcessive in relation to the harm threatened. A person is never permitted to use deadly force to repel a nondeadly attack, even if deadly force is the only way to prevent a battery.

• Self-defense is not a justification for homicide if the person claiming it created the situation necessitating the killing, unless the defendant first attempts to safely retreat from the threat or is unable to retreat

United States v. Peterson – United States Court of Appeals, District of Columbia Circuit (1973)- Defendant went to get a gun when robber tried to steal from his house, the robber came out with a lug wrench and the defendant shot him. Was not a lethal situation until the defendant got his gun so he created the situation.

MPC

A person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other individual on the present occasion.

Differences from CL:

▪ Requires only subjective belief it was necessary by the person defending

▪ No imminency requirement, instead “immediately necessary on the present occasion”- good for battered women, allows them to kill earlier

▪ Favors retreat if it’s safe except for home

Right of Aggressor to Use Self-Defense

• Generally, one who begins a fight has no right to use force in self defense

• Right can be regained by:

1. Withdrawal – An aggressor in good faith removes himself from the fight and communicates the desire to remove himself

2. Sudden Escalation – The victim of the initial aggression suddenly escalates a “minor” fight into one involving deadly force and does so without giving the aggressor a chance to withdraw, the aggressor may use deadly force to defend himself

Battered Women’s Syndrome (Battered Spouse Syndrome)

• Habitual spousal battery is not a defense to murder charges

State v. Norman – Supreme Court of North Carolina (1989)

• Battered Women’s Syndrome is a diagnosable theory which may provide more evidence for a jury to evaluate

• Still must consider with this evidence, if a reasonable person in her situation would have done what she did

• Qualities- After repeated abuse, women come to believe that they cannot control the situation and thus become passive and submissive. They’ve come to realize that fighting back means more abuse and become more subservient. They enter into a state of “learned helplessness” thinking their husbands are invincible, which may explain why she doesn’t fight back, why she didn’t try other options.

• Duress is a good defense to bring for battered women

▪ Defense of Others

• One may use proportional force in defense of any other person if the requirements are met

• Two Determining Factors for Liability

1. Majority require no special relationship between the defendant and the person in whose defense he acted

2. A minority of jurisdictions require the two be family members or servant-employer

• Status of Person Aided

1. The defendant must reasonably believe that the person aided had the legal right to use force in his own defense.

2. If, in fact, the person aided had no such legal right to use force in his own defense:

1. The defendant still has the defense in a majority of jurisdictions because it is a subjective belief of the defendant, based on reasonable appearances

2. In a minority of jurisdictions, there is no defense against liability because the defendant “steps into the shoes of the person” he defends

• Non-deadly force if reasonably necessary to protect another

• Deadly force if there is a threat of death or great bodily harm of another.

▪ Defense of Other Property

• Need for force must reasonably appear imminent

• Thus, force may not be used if a request to desist or refrain from the activity would suffice

• Right to use force is limited to protection of property in one’s possession

• Cannot use force to regain possession of property wrongfully taken, unless the person using it is in “immediate pursuit” of the taker

• Deadly Force May Not Be Used

• Defense of property alone can never justify the use of deadly force

People v. Ceballos – Supreme Court of California (1974)

• Deadly force may only be appropriate in conjunction with another privileged use of force (e.g. self-defense, defense of others, or to effectuate an arrest)

➢ Necessity (“Choice of Evils”)

• Conduct otherwise criminal is justifiable if, as a result of pressure from natural or physical forces, the defendant reasonably believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct

• Common Law-

1. The actor must be faced with a clear and imminent danger

2. There must be a direct causal relationship between his action and the harm to be averted, reasonably believes his action will be effective

3. There must have been no adequate legal alternative

4. The harm caused must not have been disproportionate to the harm avoided (less of an evil than committing the crime

5. Lawmakers must not have previously anticipated the choice of evils and made a law against it.

6. Unavailable if defendant is at fault in creating the situation which requires him to choose betwn. the 2 evils

• Test is Objective

• A good faith belief in the necessity is insufficient, must be reasonable

Nelson v. State – Supreme Court of Alaska (1979)

• Causing the death of another for necessity is never justified, says your life is more valuable than theirs

The Queen v. Dudley and Stephens – Queen’s Bench Division (1884)

MPC (broader than common law):

1. The actor must believe that his conduct is necessary to avoid an evil or another

1. The necessity must arise from an attempt by the actor to avoid an evil or harm that is greater than the evil/harm sought to be avoided by the law defining the offense charged.

1. The balancing of evils is not committed to the private judgment of the actor, it is an issue for determination at the trial. It's an objective standard, not just what the defendant believes.

1. If the legislature specifically prohibited the specific situation of choosing between those 2 evils, it's not a defense.

1. The defense is unavailable if the actor is prosecuted for a crime of recklessness or negligence and he acted recklessly or negligently in bringing about the emergency or in evaluating the necessity of his conduct.

Different from common law: no imminency requirement, doesn’t lose defense b/c he was partly at fault but only if he acted purposely, knowingly

• Duress Distinguished

• While duress (discussed below) involves a human threat, necessity involves pressure from physical or natural forces

People v. Unger – Supreme Court of Illinois (1977)

➢ Excuse

▪ An excuse defense stems from the fact that society condones the otherwise criminal actions, rather than encourages them (as in a justification)

▪ Insanity

• The insanity defense exempts certain defendants because of the existence of an abnormal mental condition at the time of the crime

• Insanity is used as a legal term, rather than a medical one

• Insanity defense may be raised at the arraignment when the plea is taken, but the defendant need not raise it then. A simple “not guilty” at that time does not waive the right to raise the defense at some future time. A minority of jurisdictions, however, require that the defendant give reasonable notice to the prosecution of an intent to raise the defense at trial.

• Neither a prosecutor nor a judge can assert the insanity defense when a competent defendant, who is adequately represented, as elected not to do so

• Acquittal by reason of insanity typically induces committal to a mental institution until cured. Some jurisdictions require present mental illness, and others commit automatically

• Committal may exceed maximum period of incarceration carried by the offense, without denying due process rights

• M’Naghten Rule

• A defendant is entitled to acquittal by establishing

1. A disease of the mind

2. Cause a defect of reason

3. Such that the defendant lacked the ability at the time of his actions to either

1. Know the wrongfulness of his actions; or

2. Understand the nature and quality of his actions

• Cognitive dual prong test

• Application

1. Defendant with Delusions – If the defendant suffered from delusions, it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be

2. Belief that Acts Are Morally Right – A defendant is not entitled to an acquittal merely because he believes his acts are morally right, unless he has lost the capacity to recognize that they are regarded by society as wrong

State v. Wilson – Supreme Court of Connecticut (1997)

3. Inability to Control Oneself – Under the traditional M’Naghten rule, it is irrelevant that the defendant may have been unable to control himself and avoid committing the crime; loss of control because of mental illness is no defense here

• Evidence Admissible and not unduly restricted by the M’Naghten rule

• Example: If you believe you are squeezing a lemon when it is really a head, you will not believe it is wrong

• Irresistible Impulse Test

• A defendant is entitled to acquittal by establishing

1. That because of mental illness

2. He was unable to control his actions or to conform his conduct to the law

• Contrary to what the name implies, this inability need not come upon the defendant suddenly

• Some jurisdictions apply both the M’Naghten and Irresistible Impulse test; thus a person is entitled to acquittal if he satisfies either test

• American Law Institute (A.L.I.) or Model Penal Code Test

• A defendant is entitled to acquittal by establishing

1. That he suffered from a mental disease or defect and

2. As a result, lacked substantial capacity to either

1. Appreciate the criminality (wrongfulness) of his conduct; or

2. Conform his conduct to the requirements of law

• This test combines the M’Naghten and Irresistible Impulse tests by allowing for the impairment of both cognitive and volitional capacity.

• Highly praised, the A.L.I. test is rapidly becoming the most popular and prevailing trend

• Mental Condition During Criminal Proceedings

• In addition to being a defense to criminal liability, the abnormal mental condition of a defendant is relevant during trial (and at the time of any execution)

• Incompetency to Stand Trial – Under the Due Process Clause of the US Constitution, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable

1. To understand the nature of the proceedings being brought against him; or

2. To assist his lawyer in the preparation of his defense

• A finding of incompetence will suspend the criminal proceedings and invariably result in commitment until such time as the defendant regains competence

• Insanity Policy Considerations

• Why we have insanity defense:

1. Purposes of punishment have traditionally been retribution, rehabilitation and deterrence

2. And an insane person cannot appreciate any of these virtues of punishment

United States v. Freeman – United States Court of Appeals, Second Circuit (1966)

• Why insanity defense is wrong:

1. As long as one knows actions are wrong or illegal, he should be held accountable

2. More pressure on society to seek treatment for the mentally ill

• Approach of prosecution against an insanity defense

1. Show that defendant actually could appreciate wrongfulness of conduct with evidence:

1. Defendant studied crimes (interests in assassination)

2. Concealable weapons to facilitate criminal activity

3. Premeditation for the crime (stake out the crime scene, etc)

4. Avoid security (metal detectors, etc.)

➢ Duress (Compulsion or Coercion)-

Common Law- A person will be acquitted of any offense if:

• Another person threatened to kill or grievously injure the actor or a relative unless she committed the offense

• He actor reasonably believed that the threat was genuine

• The threat was present, imminent and impending at the time of the criminal act

• No reasonable opportunity to escape

• The actor was not at fault in exposing herself to the threat

Plus:

• Belief of threat is to be objectively reasonable

• Threat must be by a human being, not natural forces

• Duress is not a defense to murder People v. Anderson-camp counselor shoots molesting girl

Model Penal Code(broader than common law)- Duress is an affirmative defense if:

• She was compelled to commit the offense by the use or threatened use of unlawful force by the coercer upon her or another person, and

• A person of reasonable firmness in her situation would have been unable to resist the coercion

Plus:

• Not available if the actor recklessly placed herself in the situation, but negligence is still a defense

• Duress is a defense to murder

Limitations to both:

• Honest and actual belief conduct necessary to void greater evil

• Must avoid greater harm than harm causes

• Must be objectively reasonable

• No deliberate legislative choice

➢ Mistake

Mistake of Law

• Mistake of Law (ignorance) is generally not a defense or excuse

People v. Marrero – Court of Appeals of New York (1987)

• Exemptions to Mistake of Law:

1. Law not published. Reasonably relied on statute that was later invalidated.

2. Reasonably relied on court decision

3. Reasonably relied on official in position to interpret statute (i.e. U.S. Attorney General, NOT one’s personal attorney).

4. Statute specifically requires defendant to know that the activity is illegal. MPC § 2.04

• Mistake of Fact

• Mistake of Fact is only a defense if it negates the mens rea required by the crime.

• Common Law (majority):

1. General intent crimes need reasonable mistake of fact to be a defense

2. Specific intent crimes allow mistake of fact to be unreasonable but must be sincere

People v. Navarro – Appellate Dept., Los Angeles County Superior Court (1979)

Example: Defendant sees Bill’s bicycle that is exactly like hers in every way, and she truly believes that this is her own and pedals off on it. Defendant is not guilty of the specific intent crime of larceny due to sincere mistake of fact.

MPC: Ignorance or mistake as to a fact is a defense if it negates the knowledge, recklessness, or negligence required to establish the offense, not a defense in strict liability crimes

Random stuff you need to know:

You use accomplice liability to charge someone with the substantive completed crime of another person. You use attempt if the crime is incomplete. Conspiracy merges with attempt and solicitation. So you can only recover under

Under conspiracy, the Pinkerton rule of conspiracy makes one every reasonably foreseeable offense committed by everyone furthering the conspiracy. Under accomplice liability you are only responsible for the natural and probably consequences of the particular crimes in which the person ahs intentionally assisted.

A and B conspire to commit a crime, but B goes beyond that and kills someone. The question arises whether A is criminally liable for homicide. In addressing that question, you should consider four possible theories -- ordinary accomplice liability, felony murder rule, natural and probable consequences doctrine, and Pinkerton.

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