OVERALL STRUCTURE OF THE COURSE: 1. Fundamentals: questions 2.

Elements of a crime: actus reus, mens rea, causation, and social harm 3. In practice: homicide and rape 4. General Defenses: when is conduct that leads to harm not criminal? 5. Attempt: when is conduct that does not lead to harm still criminal? 6. Accomplice: when is one liable for the criminal acts of another? FUNDAMENTAL QUESTIONS FOR CRIMINAL LAW 1. Why the criminal law? Why do we punish? What purposes does punishment serve? 2. Who should we punish? Who are the criminals? What is a crime? What is not a crime? What distinguishes blameworthy conduct from other non-blameworthy conduct? 3. How much should we punish?

1) UTILITARIANIST: a) Is this act a crime: step into shoes of person who is accused at time and moment of crimedid this person choose the path of lesser harm? focus on consequences; path of less harm; look forward cares about the past only to the extent it will impact the future b) If so, should we punish: step into shoes of sentencing judgeany purpose to punishing: punishment in itself is a harm, must be outweighed by a benefit (future goals) i) General deterrence: D is punished in order to convince the general community to forego criminal conduct in the future; object lesson to the rest of the community ii) Individual/specific deterrence: mean to deter future misconduct from D (1) Incapacitation (2) Intimidation: upon release, Ds punishment reminds him that if he returns to a life of crime, he will experience more pain. iii) Reforms/Rehabilitation: treatment as opposed to jail meant reform D c) How much? Punishment proportional if i) the greater the profits from a crime, the greater the punishment ii) the more aggravated crimes should have greater punishment to encourage minimization of crime iii) punishment should never be excessive 2) RETRIBUTIVIST: a) Is this act a crime: look at free will involved (look at context), if there was affirmative choice to do harm that person is morally culpable; dual premises: humans possess free will + punishment is justified when it is deserved b) If so, should we punish: i) Positive retributivist: always punish even if no societal benefit (if nuclear holocaust tomorrow kill everyone of death row); punish because person is guilty, they deserve it (culpable) (1) Assaultitive: deters private vengeance and send symbolic message of general deterrence; it is morally right to hate criminals right to hurt them back; treat criminals like noxious insects to be ground under the heel of society (Stephen) (2) Protective: criminals have right to be punished, restoring moral equilibrium btw criminal and society; Locke violating social compact; obligation/duty to punishpunish to restore equilibrium (Morris) (3) Victim-oriented: reaffirms the value of value of victim and restores equilibrium between criminal and victim; room in the criminal law for forgiveness and mercy (Hampton) ii) Negative retributivist: before punishmust make sure actually guilty; morally wrong to punish an innocent person even if society would benefit 1

c) How much? Proportionality i) Internal=moral culpability of wrongdoer vs. must be proportional when looking at this wrongdoer relative to all other wrongdoers; person v person; intentional v negligent (by mens rea) ii) External=social harm caused by crime (crime X vs. crime Y); (1) eye for an eye Kantian equality 3) GENERALLY: PROPORTIONALITY: How much? a) Federal Sentencing Guidelines b) Now moving toward discretion c) Persuasive Authority: other jurisdictions, scholarly treatises d) Ds burden to cast doubt: cast as many alternative theories 4) CONSTITUTIONAL REQUIREMENTS OF PROPORTIONALITY a) Generally: i) 8th amendment: is a factor for capital and non capital offenses; ii) Consider tests and views of justices; b) Capital/Death Penalty Cases: Two-Pronged Coker Test for Excessive and Unconstitutional Punishment: i) Whether the punishment makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering [U] OR ii) Is grossly out of proportion to the severity of the crime [R] (1) Determination: compares to other sentences within jurisdiction and outside jurisdiction; trying to gauge public sentiment (prongs 2 and 3 of the Solem test) iii) If punishment scheme fails either prongUnconstitutional c) Non Death Penalty Cases: Ewing-Kennedy Test: Gross Disproportionality + deference to power of state leg i) Apply First prong of Solem, (gravity of the offense and the harshness of the penalty) and if it determines that the offense was serious, any penalty short of death sentence is proportional. ii) The other prongs of the test only come into play if the court determines that the offense at issue is petty and the sentence imposed is severe (grossly disproportionate). (1) Considerations: (a) Depends on how jurisdiction grades the crime and s rap sheet (i) Ewing court evaluating three strikes rule, stole golf clubs but court says case not about shoplifting grand theft $1,200 + two previous serious crime convictions; (long rap sheet; 3 felonies-a.k.a. serious crimes; regardless that last felony is wobbler:$1,000; 25-years to life) 1. wobbler: can be a misdemeanor, can be felony depending on whether or not has past history (priors); presumptive felonybut prosecutor has discretion to bump it down to a misdemeanor
Solems Three Factor Test of Proportionality 1. gravity of the offense and the harshness of the penalty; threshold factor must fail this factor to get to the rest 2. sentences imposed on other criminals in the same jurisdiction (what other crimes in this state received the same sentence as did?) 3. the sentences imposed for commissions of the same crime in other jurisdictions

STATUTORY CONSIDERATIONS THREE PRINCIPLES THAT GOVERN RELATIONSHIP BETWEEN LEG AND COURTS (5th and 14th amendment, Bill of Attainder, ex post facto Article 1)

1. Legality: nulla poena sine lege: no crime without law, no punishment without law; no judicial crime creation; offense charged must be a crime 2. Void for Vagueness: statute must give sufficient warning that men may conduct themselves so as to avoid what is forbidden; forbids wholesale legislative delegation of lawmaking authority to police and prosecutors a. Statutes are strictly tested for certainty by interpreting their meaning from the face of the statutes b. First Amendment issues: i. A statute can not withstand constitutional attack if it is susceptible of application to speech, although vulgar and offensive, that is protected by the First Amendment Even is a persons conduct in fact is not constitutionally protected, her conviction must be overturned if the statute could reasonably be construed to prohibit constitutionally protected speech or other conduct, Lewis v. City of New Orleans
c. Ordinary statutes without First Amendment implications i. Courts are much slower to hold an ordinary criminal statute-one that does not touch on fundamental constitutional rights-is unconstitutionally vague ii. The due process clause is not violated unless a law-abiding person would still have to guess as to the meaning of a statute after she or her attorney conducts research into the meaning of the law iii. Must establish minimal guidelines to govern law enforcement: insufficient notice when it is susceptible to enforcement in an arbitrary or discriminatory manner because police, courts, or juries inherently subjective (i.e. could be applied by the police to attack entirely innocent activity; may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest) 1. e.g. Morales OConnor: fair notice requires sufficient definiteness; language was loitering with no apparent purpose depended on what was apparent to the officer 2. e.g. NY Statute: 240.35 Loitering a. section 7: person loiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence; disallowed by the courts as void for vagueness i. states might turn to specific problems they face as a justification, i.e. transportation facilities, e.g. Chicagos street gang problem b. sections 1-3, 6 precise and targeted purpose; ; sections 4: upheld (cops show discretion for masked people); section 5: upheld involves schools c. but section 3: unconstitutional free speech issues (soliciting)

3. Lenity: strict construction: statutes interpreted strictly against the state; bias in favor of the accused; innocent until proven guilty; LENITY MPC 1.02 (3) (3) NY 5.00: Penal law not strictly construed:
MPC 1.02 (3) (3) The provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this Section and the special purposes of the particular provision involved. The discretionary powers conferred by the Code shall be exercised in accordance with the criteria stated in the Code and, insofar as such criteria are not decisive, to further the general purposes stated in this Section.; doesnt explicitly accept or reject lenity NY rejects: The general rule that a penal statute is to be strictly construed does not apply to this chapter; but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law

NY rejects lenity

a. APPROACHES TO STATUTORY INTERPRETATION: there is no hierarchy depends on the judge; argue all

1. Plain Meaning: When the language is clear and unambiguous, courts just give statute its plain and definite meaning. Otherwise resort to intent. 2. Legislative Intent: The intent of leg controls the interpretation of the statute; (jurisdiction will give hints as to tools to use to decipher intent, i.e. MPC 1.02 3 )
3. 50-50 Rules of Statutory Interpretation a. Where a statute is susceptible to two interpretations, one constitutional, the other unconstitutional, the court should adopt the constitutional one. Minimize the amount of times statute is found unconstitutional 4. Lenity a. Criminal statutes must be strictly construed. Where all else is equal, adopt the interpretation that favors the over the state; fallen out of favor; lenity ALWAYS as LAST resort: NY Penal Law 5.00 does NOT adopt, MPC does not explicitly accept or reject; SOURCES FOR STATUTORY INTERPRETATION 1. Modern usage/popular understanding of term, dictionary, law dictionary, prior precedent on general statute, placement and purpose of term in the statute, etymological origins of the term, leg history of statute, policy purposes, prior versions of statute/existing common law at time of enactment 2. Example: a. U.S. v. Foster: statutory interpretation of the word carry i. Whoever, during and in relation to any crime of violence or drug trafficking crimeuses or carries a firearm, shall, be sentenced to imprisonment for five years ii. Transport v. on physical person packing heat iii. Majority: firearms within reach-not limited to carrying on person; supreme ct broad interpretation 3.

ELEMENTS OF A CRIME: ACTUS REUS, MENS REA, CAUSATION, AND SOCIAL HARM Actus Reus: refers to physical, external signs of crime Mens Rea: intent, mental/internal signs of crime; mental will over social harm; what is the persons thoughts regarding the possibility of harm ACTUS REUS: 1. COMPONENTS a. voluntary act b. that causes c. social harm d. + attendant circumstances 2. VOLUNTARY ACT a. Defined: i. a bodily movement, simply a muscular contraction; excluding reflexive actions, spasms, epileptic seizures, and bodily movements while the actor is unconscious or asleep

b. Time Framing: the prosecution need not show that every act, or even that the s last act, was voluntary in order to establish criminal liability; it is sufficient that the s conduct included a voluntary act i. Broad time-framing: if the court wants to convict a who acted involuntarily at some point during the commission of the offense, it will construct a time frame broad enough to include some remote, but voluntary act; 1. Act of operating the vehicle in reckless manner; had a seizure while driving and killed four kids; court focused on when started driving as voluntary act(not the moment when he killed the kids); court went back further in time to locate voluntary act; a. Policy: four kids killed, someone who had a history of seizuresoutcome driven; People v. Decina ii. Narrow time-framing: if the court wants to the to escape responsibility, it will construct a narrower time frame, which excludes the prior voluntary movements 1. voluntarily drank at home, was carried outside home and acted loud & boisterous; trial court presupposed voluntary act that was not explicitly there, but appellate court reversed a. Policy: cannot be established by proof that the was involuntarily and forcibly carried to public place by arresting officer, Martin v. State
VOLUNTARY ACT
MPC 2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act. (1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. (2) The following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: NY Penal Law 15.00 Culpability; definitions of terms

1. "Act" means a bodily movement. 2. "Voluntary act" means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it. 3. "Omission" means a failure to perform an act as to which a duty of performance is imposed by law. 4. "Conduct" means an act or omission and its accompanying mental state.

(a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

5. "To act" means either to perform an act or to omit to perform an act.

15.10: Requirements for criminal liability in general and for offenses of strict liability and mental culpability The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.

c. Why the acts requirement? i. allows people to have bad thoughts, so long as not acting on it ii. thoughts hard to prove iii. thoughts dont harm iv. acts are deter-able v. society values individual freedoms and autonomy generally d. Omissions: criminalizing failure to act; (generally though, there is no duty to act) i. Generally requires six elements: 1. Voluntary omission (presumes ability to act) 2. Mens rea: (presumes knowledge of facts giving rise to duty and giving rise to risk of harm); generally weaker evidence of mens rea 3. Causation 4. Attendant circumstances 5. Social harm 6. Duty: created by common law or statute (e.g. No Texas law creating a duty will get off, no matter how reprehensible his omissions were: People v. Billingslea)
ii. Why the extra element of duty: 1. Non-doings are ambiguous 2. Difficult line drawing 3. Well-meaning bystanders often make things worse 4. Issue of freedom

iii. Where are the Duties: 1. Status Relationship implied by common law (i.e. parents to children; spouses; 2. Implied or express K (i.e. lifeguards, doctors) 3. When You Create Risk (i.e. hitting & injuring pedestrian) a. self-defense doesnt affect duty if actor knows victim will die 4. Voluntary Assumption & Seclusion (Misery) 5. Statutory Duties: criminal stats, family code (i.e. duty to pay taxes) iv. Good Samaritan Statutes: attempt to legislate morality? 1. Lack of mens rea 2. Uncertainty that will prevent harm 3. fear/self preservation

3. SOCIAL HARM a. Result crimes i. Social harm easy to identify: physically identifiable harm (murder, arson) b. Conduct crimes i. Potential harm; harm need not be physical, isnt tangible (driving while intoxicated, conspiring to commit a crime); collective, heightened risk of death and injury increases; more like endangerment 4. ATTENDANT CIRCUMSTANCE: a. A condition that must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime (the condition is what makes it harmful) i. E.g. NO person shall operate (voluntary act) a motor vehicle (attendant circumstances) while such person has .08 or more by weight of alcohol in the persons blood (attendant circumstances) ii. A person is guilty of criminal homicide if he purposely (mens rea) causes the death (social harm) of another human being (attendant circumstance) iii. Breaking and entering (voluntary act) a dwelling house of another at nighttime with the intent to commit a felony therein; (everything else is attendant circumstance)

MENS REA 1. WHAT IS THE DEFINITION OF THE MENS REA TERM? a. Broad culpable interpretation of mens rea: morally blameworthy state of mind; wicked motive i. Old common law approach

b. Narrow elemental interpretation: particular mental state required for in the definition of an offense
MPC: Mens Rea Terms 2.02 General Requirements of Culpability Purposefully: A person acts purposefully with respect to a material element of an offense when: 1. If the element involves conduct or a result, it is his conscious object to engage in conduct of that nature or to cause such as result; and 2. If involves attendant circumstance: he is aware of the existence of such circumstance or believes or hopes that they exist Knowingly (willfully is synonym): 1.Element involves conduct or circumstances: aware that conduct is of that nature or that circumstance exists 2. If element is a result when aware that conduct is practically certain to cause such a result (e.g. Conley) NY Penal Code: 15.05 Contrast with MPC Intentionally: A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. second prong missing re; attendant circumstances Knowingly: A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. leaves out result prong (conduct and attendant circumstance elements only); in the absence of sentence structure, etc. Recklessly: consciously disregards substantial and unjustifiable risk that material element exists risk is disregard of risk is a gross deviation (objective-law abiding person and subjective: that individual was aware and chose to disregard; gambler ) Questions to ask: 1. was aware of substantial and unjustifiable risk (dont just take s word) Consider: a. gravity of harm, b. probability of harm c. cost of desisting from conduct 2. Is the awareness and disregard of such risk deserving of condemnation: was it a gross deviation? Negligently: when he should be aware of a substantial and unjustifiable risk that the material element the material element; failure to perceive is gross deviation (objective: reasonable person standard; less aware) Questions to ask: 1. Would a reasonable person would have been aware of a substantial and unjustifiable risk? 2. Is the failure to be aware of such a risk deserving of condemnation? Was it a gross deviation? Recklessly and Negligently: A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. Criminal negligence: A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Common Law Jurisdiction

Intentional means everything MPC captures in purposefully and knowingl

Maliciously/Malice: MPCs definitio purposefully, knowingly, recklessly (N and MPC do not include this as a men element)

Willfully: connoted evil motive; why did what they did; So mens rea wont apply to attendant circumstances, bec it doesnt change the fact that youre doing some crime culpability

reasonable person standard objective and subjective he is aware; voluntary intoxicated addition; still broken down into result and circumstance Unlawfully: completely ignore; has been interpreted by courts as superfluous; what person is doing as a matter of fact is against the law

MPC: 2.02 Statutory Construction

(1) there will always be a mens rea element (3) if statute is silent: element is established if purposefully, knowingly, recklessly shown (read in recklessness as required mens rea) (4) when the statute prescribes the MR that is sufficient for the commission of the offense, that MR shall apply to all the material elements of the offense, unless a contrary purpose plainly appears (contrary purposes: legislative history, legislative intent, sentence structureif in the beginning: applies to all; set off by commas modifies within ; in the middle: only modifies what follows) (5) if negligence is the standard: everything above standard will suffice (and so on for recklessness and knowingly); if recklessness is the standardknowing or purposefully also satisfies; when knowinglypurposefully suffices

NY 15.15 Statutory Construction

(1) same as MPC applies to everything unless contrary purpose (2) when statute is silent: read in mens rea; NY doesnt say what should be read inif the proscribed conduct necessarily involves such culpable mental state (use common sense)

2. INTERPRETING STATUTES: a. Separate statute into mens rea and actus reus elements b. For each element then, i. Categorize the type of actus reus element it is (conduct, result, attendant circumstance) ii. Identify which mens rea applies to each actus reus element (sentence structure, result crime, graduated levels of harm: i.e. battery v. aggravated battery) iii. Understand what mens rea element means : i.e. intentional = conscious objective c. General rules: i. Court seeks to ascertain legislative intent and will interpret the statute in the manner that best gives effect to the legislative intent 1. consider: legislative history of an act and the circumstances surrounding its adoption; earlier statutes on the same subject; the common law as it was understood at the time it was enacted; previous interpretations of the same or similar statutes ii. If there is only one mens rea term and it is located at the beginning of the statute, a court may interpret this to mean that the word modifies ever actus reus element that follows it. iii. If the mens rea term follows an actus reus element, but precedes others, in which case the court may conclude that the mens rea element applies to a forward, but not backward direction iv. Some courts are reluctant to follow the most grammatical reading of a statute if such an interpretation would conflict with background assumptions of the criminal law 1. presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct d. Application: i. U.S. v. Excitement Video: It is a felony to knowingly transport, receive or distribute in interstate or foreign commerce any visual depiction involving the use of a minor engaging insurance sexually explicit conduct. 1. Issue: whether knowledge modifies the attendant circumstance: that the person depicted in the videos was a minor; clearly modifies conduct and result elements (transport, receive, or distribute) 2. presumption in favor of a scienter requirement: distribution of sexually explicit, but non-obscene videos of adults is lawfulessential that government prove that

10

knew of the underage status of those involved in sexually explicit activities; since it converted innocent conduct into criminality

ii. U.S. v. Morris: statutes punished anyone who intentionally accesses a federal interest computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information in any such computer, or prevents authorized use of any such information, and thereby causes a loss of $1,000 or more. 1. Issue: whether government must prove intended to damage or prevent information and thereby cause a loss
2. Statutory Elements: a. Intentionally: b. Accesses: c. Federal interest computer: d. Without authorization e. Alters, damages: f. And thereby causes loss Mens Rea Actus Reus: Voluntary Act/Conduct Attendant Circumstances Attendant Circumstances Attendant Circumstances Social Harm/Result

3. What is the mental state required for alters or damages a. Legislative history and revisions i. pre-amendment version read: knowledge: decision to state scienter requirement only once ii. Designed to target outsiders without authorization b. sentence structure (and), punctuation (comma) c. intentional modifies only a - d
3. ADDITIONAL MENS REA DOCTRINES a. General v. Specific Intent: i. General intent offenses: the mens rea that relates to actus reus element of voluntary act. Some crimes only have a general intent mens rea. 1. i.e. murder and battery (only mens rea that is in the statute)

ii. Specific intent offenses: designates a special mental state above and beyond the general mens rea relating to voluntary act; iii. why do some statutes include a second mens rea: 1. designate an intent to do a future act (commission of a felony therein; larcey: taking and carrying away property with intent to steal) 2. describe a specific motive (i.e. hate crime statutes) 3. describe a specific mens rea for a particular attendant circumstance (i.e. receiving stolen property with knowledge that it is stolen; knowledge that property is stolen=attendant circumstances)
iv. Important for mistake of fact in common law jurisdictions

b. Transferred Intent: classic legal fiction; A intends to kill B, actually kills C; i. Retributivist: A made an affirmative choice to kill a person; still deserves to be punished; dont want people to get off because of sheer dumb luck (bad aim, intended victim ducked) ii. Criticism: person could be charged with higher intent; (treat as a criminal who only intended to kill one person); treated as if he intended to kill two all along (utilitarian) iii. No need for transferred intent because statute requires intent to kill a human being (not a specific human being) 11

iv. Other view: mens rea isnt limited in quantity v. Does not transfer the intent to cause one type of social harm to another 1. e.g. intent to kill a dog (trespass-property), but actually kills a human; throwing a rock at a person accidentally breaks a window
MPC: Transferred Intent 2.03 (2), (3) Causal Relationship between Conduct and Result
(2) When PURPOSELY OR KNOWINGLY causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. (3) When RECKLESSLY OR NEGLIGENTLY causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.

NY: written into murder stats 125.00 i.e. intends to kill one person and causes death of that person or a third person

c. Willful Blindness: deliberate refusal to find out a fact in face of a very high risk of its truth; consciously and deliberately avoiding knowing i. Knowledge and MPC: awareness of a high probability of a existence of fact about existing fact; more heinous deliberately protecting yourself ii. Recklessness: conscious disregard of substantial and unjustified risk that material element exists or will result avoid a substantial risk that something might be true in the future; gambler iii. Criticism on standards so close: jury standards should bee more clear, more definitive d. Conditional Intent: MPC 2.02 (6) When a particular purpose is an element of an offense, the element is established although such purpose is conditional (e.g. your money or your life) i. unless the condition negatives the harm or evil sought to be prevented by the law defining the offense (e.g. Id shoot you if the cops werent here) 4. STRICT LIABILITY OFFENSES: crimes that definitionally do not contain a mens rea requirement regarding one or more elements of the actus reus a. Intro: 12

i. Typically one element strictly liable: e.g. no mental state associated with burglary attendant circumstance: when the building is a dwelling ii. Strong Presumption Against Strict Liability in Common Law 1. BUT Constitution does not mention mens rea; Supreme Court hasnt required it 2. Blackmuns factors that may overcome presumption against strict liability a. The statutory crime is not derived from the common law b. There is an evident legislative policy that would be undermined by a mens rea requirement c. That the standard imposed by the statute is reasonable and adherence thereto properly expected of a person d. That the penalty is small e. That the conviction does not gravely besmirch

3. malum in se: conduct inherently wrongful: murder, rape, arson (not typically strict liablity crimes) 4. malum prohibitum: conduct although not morally wrongful, could gravely affect the health safety, or welfare of a significant portion of the public a. Public Welfare Offenses: Pure Food and Drug Act; criminal stats based on public welfare concerns (often easily passes Blackmuns test)
5. Non-public welfare strict liability offenses: a. Often result in severe punishment b. Involve conduct malum in se; violators stigmatized even though no proof of fault c. Controversial: e.g. statutory rape MINIMUM MR REQUIREMENTS MPC 2.02(1): General Requirements of Culpability NYPL 15.15: Construction of Stats with Respect to 2.05(1): When Culpability Reqs are inapplicable Culpability Reqs
2.02 (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. 2.05 (1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to: (a) offenses that constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or (b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears. 1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally," "knowingly," "recklessly" or "criminal negligence," or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears. 2. Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. This subdivision applies to offenses defined both in and outside this chapter.

b. Interpretation when statute is silent i. MPC: use reckless at least ii. NYPL: use common sense when conduct necessarily involves such culpable mental state iii. Staples v. United States: unlawful possession of unregistered firearm; do we interpret the statute to require knowledge or mens rea? 13

1. Supreme Court says: silence is not dispositive; common law presumption against strict liability 2. ownership of innocent lawful and commonplace devices would not put owner on alert 3. Public welfare analysis: a. is this device so dangerous that a person would be alerted that legislature would make it strictly liable an that it is their burden to investigate the law b. whether penalty is minimal or harsh c. impact on public welfare 4. Narrow holding: not an attempt to delineate a precise line or comprehensive criteria; 5. odd case: conservative majority abandoning plain text writing in mens rea 6. Dissent: distinguish between statutes derived from common law v. purely statutory c. If mistake defensepresumes mens rea element d. Non-public welfare offense: statutory rape i. held strictly liable even though mildly retarded and read on a third grade level; 1. dissent: cant appreciate riskso no real notice if mentally impaired; not even capable of recklessness
STATUTORY RAPE MPC: 213.3 Corruption of Minors and Seduction
AND

STRICT LIABILITY NY Sex Offenses 130.25, 130.30, 130.35

213.3

(1) Offense Defined. A male who has sexual intercourse with a female not his wife, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse, is guilty of an offense if: (a) the other person is less than [16] years old and the actor is at least [four] years older than the other person; or (b) the other person is less than 21 years old and the actor is his guardian or otherwise responsible for general supervision of his welfare; or (c) the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him; or (d) the other person is a female who is induced to participate by a promise of marriage which the actor does not mean to perform. (2) Grading. An offense under paragraph (a) of Subsection (1) is a felony of the third degree. Otherwise an offense under this section is a misdemeanor.

130.25 A person is guilty of rape in the third degree when: 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old 130.30 A person is guilty of rape in the second degree when: 1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old 130.35 A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 3. Who is less than eleven years old 4. Who is less than thirteen years old and the actor is eighteen years old or more.

213.6(1) Mistake as to Age.

(1) Mistake as to Age. Whenever in this Article the criminality of conduct depends on a child's being below the age of 10, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than 10. When criminality depends on the child's being below a critical age other than 10, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.

15.20(3) Effect of ignorance or mistake upon liability

3. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.

e. Strict Liability Debate: i. R: against S-L: free will in decision making; moral culpability ii. U: concern for social harm and deterrence outweighs lack of mens rea; might be willing to sacrifice the innocent to deter crime; some no deterrence because depends on lack of awareness on s part

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5. MISTAKE OF FACT a. Defense of mistake as complete defense to mens rea: b. Ask: i. What jurisdiction am I in? ii. What is the mistake? iii. Was it a good faith/honest mistake? c. Common Law Test: i. Whether strict liability element if so, no mistake ii. Whether mistake concerns general intent element or specific intent element: 1. If general intent elementwas the mistake reasonable? 2. If specific intent element: a is not guilty if of an offense if his mistake whether reasonable or unreasonable negates the specific-intent portion of the crime, i.e. he lacks the intent required in the definition of the offense a. BUT good faith required iii. Application: 1. People v. Navarro: larceny describes motive: taking property with intent to steal; defense of mistake: thought property was abandoned a. Specific intent crime: if in good faith believed he had a right to take the property, even though such belief was unreasonable, was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established 2. Example: intends to beat up brother who is in his house, but in rage mistakenly enters anothers house offense: breaking entering a. general intent element affected ( had no intent to break and enter)mistake must be reasonable

Strict Liability No mistake is a defense

General Intent Element A reasonable mistake is a defense

Specific Intent Element Any mistake, reasonable and unreasonable is a defense

d. Moral Wrong (common law only): essentially the intent to commit an immoral act furnishes the requisite culpability for the related, but unintended, outcome i. One can make a reasonable mistake regarding an attendant circumstance and yet manifest a bad character or otherwise demonstrate worthiness of punishment ii. There should be no exculpation for mistake where, if the facts had been as believed them to be, his conduct would still be immoral iii. E.g. Regina v. Prince; mistaken as to age of victim (reasonably believed she was 18even though really 16) general intent: only reasonable mistake; but court says act is still immoral

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MPC 2.04: Ignorance or Mistake

(1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. (legal wrong theory)

NY 15.20: Effect of ignorance or mistake upon liability

1. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (a) Such factual mistake negatives the culpable mental state required for the commission of an offense; or (b) The statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (c) Such factual mistake is of a kind that supports a defense of justification as defined in article thirty-five of this chapter.

e. NY ( 15.20) and MPC ( 2.04) i. Rule: generally not relieved of liability unless such factual mistake negatives the culpable mental state required for the commission of an offense 1. Ask: What is the requirement of mens rea for the offense? 2. Does the mistake negate what would otherwise be required for that offense (Does the , given his mistake still have all the requisite mental state elements required for the offense) f. NY and MPC still have reasonableness test i. Defense only accepted if good faith mistake, sometimes embedded within good faith analysis is reasonableness test ii. Reasonability: 1. Does truly believe in the alleged mistake of fact? SUBJECTIVE 2. Is the reckless/negligent for believing in the mistake? OBJECTIVE
g. Legal Wrong i. Example selling drugs near a school (specific intent) mistakenly believed school was a nursing home 1. Common law: still selling drugs (illegal) liable for higher offense; use lower offense to justify punishment for higher offense; 2. MPC: still liable for lesser offense 2.04(2); treat case as if mistaken belief were true; hold them for the crime they thought they were doing a. U Criticism: harm unaddressed: still sold drugs near school b. Pro/Retributivist point of view: harm is secondary concern to s free will

6. MISTAKE OF LAW: ignorantia non excusat; ignorance of the law is not an excuse a. General rule: neither knowledge nor recklessness or negligence of an offense, is ordinarily an element of that offense; therefore, it follows that there typically is no mens rea capable of being negated by an actors ignorance or mistake of the law i. Rationales/Justifications: 1. certainty of the law (but many modern statutes are exceedingly intricate) 2. avoiding subjectivity in the law 3. deterring fraud 4. encouraging legal knowledge 16

b. Common Law: when mistake of law is a defense: exceptions to the general rule: Knowledge of illegality of express element???
i. Three exceptions: 1. Reasonable reliance/entrapment by estoppel: excuse defense a. It is never reasonable to rely on ones own interpretation of the law i. so incorrectly, though reasonably interpreting and relying on a statute that is never invalidated, but merely interpreting otherwise, Marrero misinterpretation of peace officer ii. Criticisms: 1. MPCs interpretation not really an exception for mistake, because person correctly reading a statute that is later invalidated 2. Retributivist: s conduct not blameworthy 3. Utilitarian response: goal to encourage respect, adherence, and knowledge of the law by relying on more official
sources Marrero Debate No mistake is a defense (Majority) To encourage respect, adherence, and knowledge of the law by relying on more official sources To also discourage people form knowing the law; can lead to criminals finding loopholes to discourage fraud A reasonable mistake is a defense (Dissent) Negligence as better standard to encourage citizens to know law tenaciously attempted to ferret out the law Retributivist: s conduct not blameworthy

Any mistake, reasonable an unreasonable, is a defense

b. Official interpretation of the law: is excused for committing a criminal offense if she reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense. i. Justifications 1. little deterrence effect 2. acts as we would want her to actno moral culpability 3. clean hands unfair for official to hold people liable for government authorized conduct ii. Narrowly applied: official 1. a statute later declared to be invalid 2. a judicial decision of the highest court in the jurisdiction later determined to be erroneous 3. an official, but erroneous, interpretation of the law, secured from a public officer in charge of its interpretation, administration, or enforcement (e.g. Attorney General of the state or of the U.S. if federal law) iii. Must come in an official manner: must be a formal interpretation iv. Advice of private counsel insufficient as a basis 2. Fair notice: (excuse defense) a. generally everyone is conclusively presumed to know the law: understand and know of the existence of all criminal laws BUT exceptional cases 17

where so grossly unjust to assume that a citizen is aware of a penal laws existence that one might expect that a court would provide some common law dispensation b. assert constitutional defense of due process violation c. Considerations for determining whether there was nothing to alert or a reasonable person to the need to inquire into the law (might require all three be met) i. Dealing with conduct that is wholly passive/punishes omission (e.g. failure to register as a convicted felon upon moving to new state, Lambert) ii. The duty to act was imposed on the basis of a statute iii. The offense was malum prohibitum

3. Ignorance or mistake that negates mens rea: (failure-of-proof claim) a. Generally neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense, or as to the meaning of an offense, is ordinarily an element of that offense; so mistake of law will not usually negate mens rea b. On occasion, knowledge that the prohibited conduct constitutes na offense is itself an express element of the crime c. different-law mistake: s lack of knowledge of, or misunderstanding regarding the meaning or application of another law-usually, it will be a non-penal law-will negate the mens rea element in the definition of the criminal offense i. Each aware of and understood criminal statute, but misunderstood or was unaware of another law ii. Determine whether 1. specific-intent offense: if mistake negates the specific intent in the offense (same analysis as mistake of fact); a. e.g. mechanics lien law: unaware that mechanic may retain s property until has paid b. mistake of different law defense valid 2. general-intent offense generally different-law mistake NOT a defense whether reasonable or unreasonable a. e.g. mistaken belief that and V were legally married, but were not, mistaken belief that conduct was not rape b. so rape hypothetical invalid 3. strict liability offense: NOT a defense: no mens rea to negate a. e.g. mistaken belief that and V were legally divorced: belief that conduct was not rape; belief that marrying another was not bigamy b. So bigamy hypo invalid

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MISTAKE MPC 2.04: Ignorance or Mistake

(1) Ignorance or mistake as to a matter of fact if:
OR LAW

OF

LAW NY 15.20: Effect of ignorance or mistake upon liability

is a defense

2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless: such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. (4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence. MPC Mistake of Law Doctrine: 2.04 General Presumption Against Mistake of Law Doctrine: Exceptions: 1. Elemental: mens rea negatived 2.04(1) 2. Knowledge of illegality express element 2.04(2) 3. Recognize mistake where mistakes werent really mistakes 2.04(3)(b) 4.Fair notice: because statute hasnt been published yet 2.04(3) (a)

NYs Mistake of Law Doctrine: 15.20 General Presumption Against Mistake of Law Doctrine: Exceptions: 1. Recognize mistake where mistakes werent really mistakes: relying on official interpretation of the law 2. Specific intent negated for different law mistake (Cheek v. U.S.) 3. even though statute doesnt say official statement must be declared erroneous, the courts, based on leg history have determined that must be so (Marrero)

WRAP UP Common Law: fundamental questions 1. Mistake of law or mistake of fact? 2. If Mistake of law: general intent or specific intent element? No mistake is a defense (Majority) Mistake of law about GI and SL offenses A reasonable mistake is a defense Mistake of fact about GI element Mistake of law about SI element Any mistake, reasonable and unreasonable, is a defense Mistake of fact about SI element

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CAUSATION 1. INTRO: a. Only causation issues with result crimes b. Causation Terms: i. Actual causation ii. proximate causation iii. direct causes iv. indirect causes v. intervening causes vi. superseding causes c. Actual Cause: s conduct is an actual cause when but for the s conduct, the result would not have happened when it did and as it did d. Proximate Cause: s conduct is a proximate cause when as one of the actual causes of the resulting social harm, it has been determined that should be held accountable for the resulting social harm i. Only picks some actual causes to be criminally responsible

2. ACTUAL CAUSATION: BUT FOR CAUSATION a. Not straightforward when multiple causes i. When not acting in concert: must show independent causation for each 1. If first injury is lethal: must show second injury accelerated the result: speeds up time of death a. manslaughter: result is death; i. distinguish aggravation: causing a more painful death (assault) ii. Common scenarios involving multiple causes: 1. accelerating causes: focuses on second chronological assaulter: is the result going to happen any sooner? 2. aggravating causes: doing anything physically to aggravate harm; i.e. from legal to non-lethal; aggravation of lethality of wound, (as opposed to increasing pain) 3. concurrent-sufficient causes: a. if conduct was a substantial factor in said result b. But for: would V have died from two simultaneous mortal wounds (died in a particular way) 4. obstructed cause: potential multiple causes, but first cause obstructed by second actual cause; (still attempted murder charge); D2 not intervening cause (proximate causation term) a. R: only hold actor to the harm they cause iii. Tests: 1. But for s conduct would V have died when and as he did: 2. Substantial Factor 3. Application: a. Accelerating Causes: Both D1 and D2 accelerated death of V
Timeline D1 inflicts mortal wound. If alone, V would die in 1 hour D2 inflicts mortal wound. If alone, V would die in 1 hour However, because of D1 and D2, V dies in 5 minutes

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b. Accelerating Causes II: Both D1 and D2 accelerated death of V

Timeline D1 inflicts mortal wound. If alone, V would die in 1 hour D2 inflicts nonmortal wound. If alone, V would not die However, because of D1 and D2, V dies in 5 minutes

c. Aggravating Causes: Both Ds are actual causes (but aggravation of only pain does not constitute actual causation. Must be aggravation of lethality of wound); not accelerating something, changing the actual nature of the act; perhaps altered by proximate cause
Timeline D1 inflicts non mortal wound D2 inflicts non mortal wound. However, because of D1 and D2, V dies.

d. Concurrent Sufficient Causes: both D1 and D2 are causes

Timeline D1 inflicts instant mortal wound. D2 also inflicts instant mortal wound at the same time. V dies instantly.

e. Obstruction: D1 not an actual cause, but obstructed cause; obstructed by D2, D2s wound would have killed V when and how it did regardless of D1s initial shot (The case of Joseph Wood)
Timeline D1 inflicts mortal wound. V would die in 1 week D2 inflicts mortal wound. V2 would die instantly from this wound V dies instantly from D2s wound

3. PROXIMATE CAUSE a. Intro: i. Direct: bring about result without intervention of another force ii. Indirect: is that which brings about a result only with the intervention of another force(s) 1. Intervening cause: conduct or force that occurs between an earlier cause and the eventual result; separate force in operating in creating harm; only comes into play after the s voluntary act and before the social harm, i.e. Timeline Ds conduct (earlier cause)

Intervening cause

Social harm

2. Common Sources: a. Act of God/Nature b. Third Party c. Victims conduct 3. Supervening cause: does intervening cause relieve of criminal responsibility? Under what circumstances is it unfair to say that the social harm was caused by the s conduct because of an intervening cause

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b. Proximate Cause Doctrines that May Preclude Criminal Responsibility Based on legal causation: i. Foreseeability Doctrine (NY law): was the intervening cause foreseeable (not whether the harm was foreseeable) 1. Intervening Causes as Coincidences and Responses Doctrine, Lafave and Scott: a. Coincidence: when the s act merely put the victim in a certain place in a certain time and because the V was so located it was possible for him to be acted upon by the intervening cause i. Will break the chain of proximate causal connection unless it was foreseeable b. Response: involves a reaction to the conditions created by the i. Will break the chain of proximate causation only if abnormal and unforeseeable (extreme unforeseeably); much harder to get off c. Example: Kibbe v. Henderson intervening causes of driver Blake and V do not supersede; foreseeable that highly intoxicated abandoned man without glasses would get hit by car on rural unlit highway
Kibbe Coincidence of Blakes driving: getting hit by a car foreseeable Timeline Ds voluntary act leaving S on side of road Ss movement to center of road Blakes driving Intervening Cause Harm of Ss death

Kibbe Coincidence of Plane crashing into road: not foreseeable to get hit by plane Timeline Ds voluntary act leaving S on side of road Joseph Wood Timeline D1 shoots off gun b/c of gun shot D2 comes running and V dies instantly from D2s wound inflicts mortal wound foreseeable Ss movement to center of road Plane Intervening Cause Harm of Ss death

ii. Free will Doctrine: look back to free deliberate and informed human action (first act of free will), the law will not trace back to that causal chain any further 1. Kibbe drunk: not considered acting out for free will; same as insane; focus on intervening act of Kibbe moving to the center of the road iii. Omissions Doctrine: omission never relieves an earlier wrongdoer of proximate causation and criminal foreseeability (no matter how free will or unforeseeable); even if second wrongdoer had a duty to act iv. Apparent Safety Doctrine: when person reaches a position of safety, the original wrongdoer is no longer responsible for any ensuing harm; 1. V reached apparent safety from original wrongdoer batterer outside her parents house, but chose not to enter and froze outside

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v. Contributory Negligence Doctrine: Vs own conduct was an intervening cause; unlike tort, handled on a case-by-case basis; just one consideration out of the other doctrines 1. what might cut it off? What might not? (free will, foreseeability, apparent safety; see Velazquez below) vi. Intended Consequences Doctrine: unplanned route (intervening causes) is ok, so long as result is achieved through somewhat similar means; 1. M plans to poison V; passes of as medicine to babysitter; babysitter decides not to administer to V, but negligently leaves on counter; 5 year old finds it and innocently administers to V who dies 2. Justification: a. mens rea given tremendous weight b. R: affirmative free will choice to kill V (goes beyond attempted murder)
Timeline M gives poison to N & tells N to give to V N negligently leaves poison out 5 year old Y innocently gives poison to V Harm of Vs death

vii. MPCs Remote and Accidental Doctrine 2.03 (proximate causation never stated) 1. Need actual causation/but for causation, 2.03(1) 2. Proximate Cause Doctrines: established only when there is a match between actual result and designed/contemplated or probable result, 2.03(2) and (3): a. Was the actual resultdesigned or contemplated result (intentional) b. Was the actual resultprobable result of which was aware or should have been aware (knowing, reckless, negligent) 3. If mismatch between actual result and designed or contemplated result/probable consequence and if result is not so accidental or remote a. Exceptions: i. transferred intent or ii. Involves same kind of injury and not too remote (proximate causation)
MPC 2.03 Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result. (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. (2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. (3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of

23

the actor's conduct.

You do not need a match for these exceptions [2.03(2)(a) and (b) and (3)(a) and (b)]: The only difference is that actual result is a different person or different piece of property is harmed [transferred intent]; or The only difference is that actual result is less serious or extensive than designed or contemplated; or When the actual result involves the same kind of injury as designed and is not too remote or accidental as to have a [just] bearing on liability.

viii. Velazquez v. State: drag racing dummies 1. contributory negligence: Vs own conduct contributed to his death 2. free will doctrine: Vs own informed choice to continue drag racing in other direction 3. apparent safety: drag race was over 4. foreseeability: not foreseeable that that V would turn around and consider the race 5. might still pin the death of an innocent bystander on ; because this V doesnt have any contributory negligence
Timeline D and V begin a drag race At end of path, V decides to turn around and continues racing (possible intervening cause-contrib. negligence ) D follows and also continues racing (possible intervening cause?) V dies

ix. People v. Hall: uses child as shield from oncoming bullets 1. foreseeability (foreseeable that X would continue shooting after picked up child; at least is reckless about the risk tat X will continue shooting) 2. free will of X continuing to shoot (might get off)
Timeline X shoots at D (NOT the initial cause of harm to V- child) D grabs toddler to use toddler as shield (Initial cause of harm to V-child) X continues to shoot, now at toddler & D (possible intervening cause) Harm of toddlers death

x. Cook (supplement case); Jehovahs witness case 1. free will doctrine: she chose out of her own free will to turn down blood transfusion 2. BUT CA goes the other way and holds liable: no matter what the condition of the V is by choice (religion) or not by choice (hemophilia-true eggshell skull)
Timeline D drives drunk and hits V V offered medical treatment V refuses blood transfusions that would save her life (intervening cause?) V dies

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xi. REVIEW: Focus not just on substance of questionbut the target of the question 1. find s act 2. find intervening act 3. determine: whether intervening cause was foreseeable by taking into account s act PROXIMATE CAUSE TESTS

Foreseeability

Is the intervening cause a response or coincidence to defendants act? Was the intervening cause foreseeable? Abnormal? Is the intervening cause an act of free will?

Free Will

Omissions

Is the intervening cause an omission?

Apparent Safety Intended Consequences MPC

Has apparent safety been reached after defendants act and prior to the resulting harm? Did the defendant get what she intended, even if it did not occur in the precise manner planned? Is the only difference a different person or property? Extent of injury? Or is actual result the same kind of injury and not too remote or accidental?

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CONCURRENCE OF VOLUNTARY ACT AND MENS REA 1. Temporal Concurrence: when the mens rea of an offense exists before or after, but not during, the commission of the actus reus; a. Mens rea preceding actus reus i. M decides to kill V, abandons plan, later accidentally kills V b. Actus reus preceding mens rea i. breaks and enters to escape cold. Later while inside decides to steal Vs property; not burglary: intent to commit a felony therein occurred later c. Temporally divisible acts and/or omissions: i. When a person commits temporally divisible acts only one of which causes the social harm OR ii. When s mens rea concurs with an omission that follows an innocent act 1. RI driver case; no evidence of culpable negligence on the part of up to and including the time at which the V was struck by s car; thereafter no evidence to prove V died on impact or was dragged and then died when recklessly or negligently drove off (State v. Rose)

2. Motivational Concurrence: the impelling force or motivation behind the act that causes the social harm must be the mens rea of the offense, and not some other thought process, such as the mental state of preparing to commit the offense; a. intent to kill must be the reason why pulls the trigger at that singular moment (not because testing the trigger based on belief that gun is unloaded; but gun is loaded and at the moment V enters the house pulling the trigger was intended as a preparatory act) b. reckless about it being loaded; must also show reckless about husband coming home (disregard unjustifiable risk) c. mens rea must be the actuating force behind the conduct: ask: why was the act done at that time?

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IN PRACTICE: HOMICIDE AND RAPE

HOMICIDE:

1. Definition: The killing of a human being by another human being without justification or excuse a. When life begins: Feticide: subset NY 125.00 unborn child; mother has been pregnant for at least 24 weeks; b. When is death: the end of respiratory and pulmonary functions OR the end of the end of brain activity c. When does death have to have happened: i. Common law: no prosecution for homicide unless V died within a year and a day of the attack ii. Modern trend: abrogate rule or apply a longer time limitation 1. e.g.CA: rebuttable presumption for 3 years and a day 2. Intentional Homicides: Both Murder and Manslaughter can be intentional (voluntary) and unintentional (involuntary)
3. Distinctions between Jurisdictions a. COMMON LAW Murder killing with malice aforethought (aforethought-superfluous) i. Four Mental States: 1. Intent to Kill (express) 2. Intent to Cause Grievous Bodily Harm (implied) 3. Depraved Heart (implied) 4. Felony Murder (implied) ii. Each mental state involves an extreme indifference to the value of human life

b. COMMON LAW Manslaughter killing without malice aforethought (courts not comfortable with mandatory penalty for murder) i. Three Mental States: 1. Intent to Kill in Sudden Heat-of-Passion as the result of adequate provocation 2. Lawful Act Manslaughter: act lawful in itself, but done in an unlawful manner a. reckless b. negligent (involuntary) 3. Unlawful Act Manslaughter a. misdemeanor manslaughter
ii. Common law: graded voluntary and involuntary manslaughter equally

c. DIVISION OF MURDER INTO DEGREES i. First: 1. Determine whether a murder has occurred (with malice: 4 mental states above) 2. Assuming a murder has occurred, determine what degree a. First degree i. According to the statutory specified manner
ii. Example PA 1. First degree: a. According to the statutory specified manner: poison, lying in waitsufficiently morally heinous b. Willful, deliberate, and premeditated killing c. Felony murder: rape, arson, robbery, and burglary

2. All other forms of murder are second degree 27

a. E.g. intentional, but not premeditated and deliberate; intent to inflict grievous bodily injury killings; reckless killings; and deaths that occur during the commission of other felonies iii. Example CA-common law: Murder= any killing with malice aforethought (3 mental states) 1. Malice aforethought a. Manifested deliberate intention unlawfully to take away the life of a fellow creature (express) b. No provocation (implied) c. Abandoned-malignant heart (implied)
2. Murder degrees a. First Degree: (punishable by death, life imprisonment without parole, or 25life) i. Murder perpetrated by a destructive device or explosive, ii. poison, lying in wait, torture iii. Or by any kind of willful, deliberate, and premeditated killing iv. Committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery burglary, mayhem, kidnapping, train wrecking, or any other act punishable under sections relating to sexual offenses; or any murder perpetrated by the means of discharging a firearm from a motor vehicle, intentionally at another person

b. Everything else is second degree murder (15-life) 3. Manslaughter: unlawful killing of a human being without malice a. Voluntary: upon sudden quarrel or heat of passion b. Involuntary: in the commission of an unlawful act, not amounting to a felony c. Vehicular: gross negligence d. NY and MPC: see charts! i. NY: blend of common 125.10- 125.27 ii. MPC: only murder, manslaughter, crim negligence homicide 1. Not sep by degress 2. Focus exclusively on mens rea to distinguish 210.1-210.4 4. Elements of COMMON LAW INTENTIONAL MURDER: willful, deliberate, and premeditated a. Most jurisdictions: willful, deliberate, and premeditated=more than in an intent to kill; heinous i. deliberation: measure and evaluate the major facets of a choice or problem; weighing the reasons for and against and considering the consequences of the action; impossible to deliberate without premeditating; depth of reflectionquality of though process ii. Premeditation: to think about beforehandquantity of time that a person put into formulating her design iii. Split: 1. Broad: no time is too short for a wicked man to frame in his mind the scheme of murder; sufficient time to be afforded to enable the mind to fully to frame the design to kill and to select the instrument, or frame the plan; days, hours, minutes a. Criticism: nearly equates premeditation with intentional killing; undermines degrees of murder 28

2. Narrow: some appreciable time; proof that the killer has time not only to form the intent, but also to turn the matter over in her mind and to give the matter at least a second thought; not possible to conduct unhurried, careful, thorough, and cool calculation and consideration of effects and consequences-the essence of the deliberative process-in a matter of split second; undisturbed by hot blood; enough time for reasonable person to take a second look (still no bright line test) 3. Cardozo: fact sensitive whether the case is such that a jury could exercise mercy; unworkable, unpredictable test? Purpose of second degree: To give room to exercise mercy
iv. Troublesome cases: heinous child abuse that results in death, actual mercy killings of the elderly 1. Factors in Determining Premeditation and Deliberation: (State v. Forrest, mercy killing 1st degree murder); proved by circumstantial evidence a. Want of provocation on the part of the V b. s conduct and statements before and after the killing c. s threats and declarations before and during the course of the occurrence d. Ill-will or previous difficulty between the parties e. The dealing of lethal blows after the deceased has been felled and rendered helpless; and f. Evidence that the killing was done in a brutal manner g. Nature and number of the Vs wounds v. Criticism: some of the worst murders arent planned at all vi. Utilitarian-Retributivist Explanations for 1. U: deterrence for premeditators 2. R: free will; one who plans has arguably made a more culpable choice

vii. Note: NY does NOT separate 1 and 2 degree murder by willful, premed, deliberate distinction: 1. 1 reserved for killings of certain Vs (police officers, witnesses, etc.) or by certain s (K killers, s serving life already, etc.) b. Depraved Heart Murder: extreme recklessness 5. INTENTIONAL MANSLAUGHTER a. Rule of Provocation/Heat of Passion defense that will mitigate murder to manslaughter (Common law) i. Elements: 1. adequate provocation (by the V) a. law accepts certain provocations in fixed categories: i. observing adultery, mutual combat, injury to close relative, assault and battery, illegal arrest b. broadly defined/modern standard: inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason i. words ONLY enough if accompanied by conduct indicating a present intention and ability to cause the bodily harm 1. policy: would affect the multitude of domestic abuse cases ii. possibility of allowing some words: insulting words v. informational words 29

2. killed in heat of passion 3. no reasonable opportunity to cool off a. eliminates provocations that occur well before the crime b. some exceptions in instances where over time blood gets hotter and hotter (i.e. rape Vs) 4. causal connection: provocationheat of passionkilling

ii. Premed and Deliberation and Heat-of-Passion premised on emotion: 1. how emotion affects the grading of an offensemitigation or aggravation 2. U: might not worry about emotion; because more concerned about danger posed to society 3. R: look for less morally culpable choice
iii. Subjectivity and Objectivity in the Criminal Law 1. Should criminal law reflect who we are or be a beacon of the ideal, something people aspire to?

2. Mixed objective/subjective standard: (Director of Public Prosecutions v. Camplin-15 year-old killed man who raped him by hitting with frying pan) a. objective: power of self-control to be expected of a person of the sex and age of the accused; easy to prove; sources of self-controlsex and age as big contributors to how much self control to expect from b. subjective: jury can consider accuseds characteristics as they think would affect the gravity of the provocation to him (if words are considered as potentially adequate provocationmeant to be subjective) 3. Objective standard: avoid people who have proclivity toward getting provoked; no excuse for exceptional pugnacity a. How grave was the provocation to a reasonable person b. What level of self control is expected of a reasonable person to this provocation b. MPC/NY: Extreme Emotional Disturbance Test i. SUBJECTIVE part of test: 1. Did the act under the influence of EED? Threshold for getting jury to entertain defense before jury a. threshold is so lowsome states have pulled back; NY drug dealer case putting hand on plate ii. OBJECTIVE/SUBJECTIVE part of test: 1. whether the explanation why is EED is reasonable; must have good reason to explain why emotionally disturbed (must still adopt internal, subjective circumstances- i.e. if he perceives she rejected him) Ask: a. Whether in the totality of the circumstances the finder of fact could understand how a person night have his reason overcome b. which characteristics to assume:
Often included Age, sex, physical handicaps Being of illegitimate birth Often not included Idiosyncratic moral values i.e. refusing to adopt evidence of homophobia

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c. Heat of Passion v. EED; EED has fewer requirements i. a specific provocative act not required to trigger EMED (can be brought on by a combination of factors-difficult divorce, etc.); manslaughter instruction warranted although V did nothing to provoke the incident ii. if provocation, need not involve an injury, an affront, or other provocative act perpetrated upon the by the V; so if mistakenly believes V was responsible for the affront or if provocation and strikes out in blinding rage and kills innocents iii. if provocation, need not fall within any fixed category of provocation; words alone can be sufficient iv. no rigid cooling off rule; no suddenness requirement; homicide need not immediately follow the incident v. will more often get to the jury in EED states
6. UNINTENTIONAL MURDER a. Killing due to UNJUSTIFIED & SUBSTANTIAL RISK TAKING: reckless and negligence killing i. Jurisdictions: 1. MPC (see chart): 210.2 Murder; 210.3 Extreme Indifference Manslaughter; 210.4 Negligent Homicide 2. NY (see chart): 125.25(2) Murder in the 2 degree; Depraved Indifference125.15(2) Manslaughter 2d; 125.10 Criminally Negligent Homicide 3. CA/Common law (see above): Involuntary Manslaughter; extreme recklessness: Abandoned and Malignant Heart (in-between recklessness and intent/knowing)

b. Carving out an additional mens rea: in-between murder and manslaughter recklessness:
SEVERE RECKLESSNESS

Common Law: ABANDONED MALIGNANT HEART

AND

NY: 125.25 (2) Murder 2 DEPRAVED INDIFFERENCE

Under circumstances evincing depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person There are jury misconceptions about depraved indifference as fall back/lesser punishment than intentional murder; all killings=depraved indifference; despite specific jury instructions, juries still have misconception

MPC: Murder; 210.2 (2)

Murder; 210.2 (2) When murder is committed under circumstances manifesting extreme indifference to the value of human life (entitled to reckless manslaughter jury instruction)

Abandoned and Malignant Heart: malice may be implied when does an act with high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life (People v. Watson) Berry v. Superior Court ; pitbull case Test: whether a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion that committed the crime charged

31

a. Current NY law (Suarez and McPherson): i. What depraved indifference is: 1. Recklessness + high risk of death + uncommon brutality (not by virtue of the acts motive is for the sake of brutality, not for killing) a. vs. Reckless Manslaughter 2 : recklessness about death (conscious disregard of substantial risk of death)
ii. What depraved indifference is NOT: 1. Not an intent to kill; indifferent means dont care mutually exclusive (NOT lesser alternatives) of intent to kill; a. Only a rare case can reasonably support alternative theories 2. Not an intent to inflict serious injury; court has already graded this as lesser Manslaughter, 1 a. Additional motive of brutality and torturebumps up to depraved indifference murder 3. Not heinous and brutal if accompanied by intent to kill

iii. Examples given: Russian roulette, shooting into crowd, opening door of lions cage; starting fire at door of occupied building; bomb in public place, etc. 1. previous precedent in Register: high recklessness + level of risk alone NOT enough (lacks brutality); a. juries struggling with risk analysis; brutality less gray factor; juries can apply reasonably consistently iv. Rationale: 1. fear of over and undercharging; making bright lines in particular between depraved indifference and reckless manslaughter because different grades of punishment
c. Non-criminal Accidental Killings

d. FELONY MURDER: Killing during unlawful conduct: i. Intro: 1. felony [both MR and AR of felony] + killing [in perpetration/commission of felony; no need to show MR for killing] = felony murder a. BUT felony + killing with intent felony murder ii. FMR originally: all feloniesdeath penalty; FMR was needed to punish attempted felonies (before treated as a misdemeanors)
1. Problems/Criticisms of Modern Application of FMR a. Many more felonies on the books; many more s exposed to FMR b. Not many primes punishable by death c. Attempted felonies not downgraded to felonies d. Cant deter because people are not familiar with harsh FMR e. Cant deter unintended consequences 2. Justifications/Rationale a. Utilitarian:

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i. deterrence; encourages potential felons to commit felonies in most safe way ii. dont commit felonies at all because always a risk (e.g. V dies from heart attack during bank robbery) iii. discourages intentional feloniesbecause now no need to prove MR b. Crumps: i. Proportionality: FMR represents how our society measures/grades harm ii. The fact that people dont know about FMR: can make argument about every law; 1. felons not that ignorant 2. Black and white rule easy to apply iii. Reduces fraudulent defenses related to MR

3. Proportionality: Matching culpability to harm? Burglar (B1) enters, steals $500 Burglar (B2) enters, steals $500, V Burglar (B3) enters, steals $500, dies from heart attack intends to murder V 3
Same culpability as B1 (B2 just unlucky) Greater harm (no death from B1) Greater culpability Same harm (still a death);

a. What dictates punishment? Why must it be either or; why not something inbetween ; i. Treat B3 like intentional murderer; treat B2 like a burglar
4. States that have abolished FMR: MI, KY, HI; states that have kept the FMR have limited it 5. Limitations of Felony Murder Rule a. Underlying felony has to be inherently dangerous i. Deterrence principle: encourages careful behavior 1. Abstract Approach: whether the crime, by its very nature can not be committed without creating a substantial risk that someone will be killedan offense carrying a high probability that death will result; determination is NOT based on the particular facts of the case a. Narrow: Look to the elements of the felony in the abstract; if the court can think of ways of committing the felony in which there would NOT be a risk of death felony itself is NOT inherently dangerous; i. takes into account non-hazardous ways of violating the provisions which do not necessarily pose a threat to human life ii. E.g. People v. Burroughs felony of practicing medicine without a license not inherently dangerous: could result in treating a cold or setting a broken arm iii. E.g. courts have said, theft (even if swindling cancer patient not to seek conventional treatment and he dies quicker as a result), false imprisonmentNOT inherently dangerous

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iv. State v. Stewart court could imagine nondeadly ways of committing child neglect; b. Fact Specific/Facts of the Case: determines the dangerousness of a felony by considering the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and circumstances in which it was committed; i. Criticism: in hindsight there is a dead bodyjury will be persuaded that act was inherently dangerous b. Has to be an independent felony (independent of the killing) i. If the purpose of the conduct was the very assault which resulted in the deathnot independent; cant use underlying felonies that are an integral part of the homicide 1. E.g. breaks and enters in order to kill V 2. beats V to death (assault + murder) 3. felonies of involuntary and voluntary manslaughter can not serve as underlying felony ii. Rationale for Merger: 1. Prosecution should go after intent where some felons manifest an intent to kill 2. Otherwise swallows up leg scheme of graduation of crimes 3. Deterrence cant deter if purpose was to kill iii. CA: inherently dangerous in the abstract + independent felonious purpose c. Has to be on Statutory List of Designated Felonies d. Has to be during the commission of a felony i. Res gestae: 1. Felony begins: at point where can be convicted of an attempt 2. End of felony: point when has reached temporary safety; vs. a part of a continuous transaction 3. Other general considerations of time, distance, and causation between underlying felony and a killing are factors to be considered (causation) a. if death occurs within a few minutes regardless of being in state of safety; State v. Sophophone charged with death of co-felon; even though at point of safety (in back of police car) e. Has to be in Furtherance of the Felony i. Causal connection: Approaches/Interpretations 1. King/VA approach: Its not enough that the felony itself gives you reason to be there death itself must have been connected to the felonious nature of the conduct a. E.g. plane importing illegal drugs crashed because of pilot error or bad weather (NOT connected) b. vs. pilot flying erratically, undertaking maneuvers to avoid detection (connected) 34

2. CA/Common law: only actual but for causation needed 3. NY: requires foreseeability
f. Special Accomplice Limitations i. Agency Approach: 1. police officer not an accomplice 2. justified killing; cant base liability on non-liability ii. Proximate Cause Approach NY approach 1. if death is foreseeable regardless of whether killer is an accomplice 2. NY exception: state doesnt allow for death of co-felon as basis of FMR iii. Supplement Hypos: 1. Hypo: 1 accomplice liability 2. Hypo 2: Doesnt satisfy accomplice liability; F1 and F2 not an accomplice to V (killer) 3. Sophophone: how can you base liability on non-liability Felony Murder MPC
Murder, 210.2(b) 1. extreme recklessness is presumed (murder) if homicide occurs while actor is engaged in, or is an accomplice in, the attempted commission of, or flight from one of the dangerous felonies: robbery, rape or deviate sexual intercourse by force or by threat of force, arson, burglary, kidnapping or felonious escape

NY 125.25 (3)
Murder 2 3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant: BURNHOLDT DEFENSE: (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or

CA Common Law
One of the four mens rea categories of malice aforethought CA Murder, 1 Committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery burglary, mayhem, kidnapping, train wrecking, or any other act punishable under sections relating to sexual offenses; or any murder perpetrated by the means of discharging a firearm from a motor vehicle, intentionally at another person

35

RAPE 1. What makes it rape as opposed to sex? a. Consent i. Silence ii. Changing mind possible? Verbal no + body language yes iii. How long is an expression of non-consent accepted: is it revocable? b. Historically i. common law rape: carnal knowledge of woman against her will (gendered criminalization) with marital exception ii. Later included forcibly; evidentiary point that rises level to element of consent iii. Modern trends: 1. some jurisdictions have eliminated force req. 2. no longer constitutional to punish with death penalty 3. currently a non-gendered term c. Four common types of Rape in Modern Statutes i. Forcible rape ii. Rape by deception iii. Rape of unconscious /sleeping victim unable to consent iv. Rape of victim incompetent to give legal consent 2. Actus Reus Elements a. Intro: i. Sexual penetration ii. Lack of Consent iii. Force? iv. Resistance? b. Lack of Consent: against the will of V i. NC: Says it is legitimate to have different rules based on nature of relationship between V and P 1. Special rule when dealing in the context of a current or prior relationship: statements and actions by V must be clearly communicated to the and which expressly and unequivocally indicate the Vs withdrawal of any prior consent and lack of consent to the particular act of intercourse a. Silence not enough for non-consentV must clearly communicate to ; onus will be on party who wants to stop, to say so 2. Consenting to sex after bringing an action of rape relevant for credibility cases ii. Stranger rapes: arguably have a different, lesser standard

iii. NJ: need affirmative and freely given permission by the V; silence is NOT permission 1. permission can be inferred from acts; persons need not expressly announce consent to engage in intercourse for there to be affirmative permission 2. permission demonstrated when evidence is sufficient to demonstrate that a reasonable person would have believed that the alleged V had affirmatively and freely given authorization to the act a. state must demonstrate beyond a reasonable doubt either that did not actually believe affirmative permission had been freely given or that such a belief was unreasonable under the circumstances 3. consent can be withdrawn after initial penetration 4. nonconsensual sex without forceRAPE 36

5. Silence not enough for consentmust be communicated; onus on party who wants to continue, to get affirmative consent c. Withdrawing Consent i. People v. John Z. : Vs version: several minutes past after V says I need to go not quite crying, but on the verge ii. Roundtree precedent: crime of rape committed when a V withdraws her consent during an act of sexual intercourse but is forced to complete the act 1. Old law: Vela precedent: crucial time for consent is at penetrationconsenting to initial act of consent; iii. Silence not enough for consent? Depends on jurisdiction iv. Force? Depends on jurisdiction d. Consent Overview/Proving Lack of Consent: i. must show V did not consent: attendant circumstance: subjective, harder to prove; room for fraud ii. must show s mens rea that accompanies attendant circumstance 1. Different ways to prove lack of consent: a. Vs testimony post intercourse b. Physical resistance before and during intercourse c. Words before and during intercourse; i.e. no iii. Does the lack of resistance = consent; although resistance is not a formal requirementcourts will tend to apply as such iv. Many courts now accept no as enough v. Ambiguity or Silence: courts start with default presumption 1. Splits: a. Silence is consent during act of sex in a prior or existing relationship; sometimes silence as evidence of consent b. No prior relationship + silence i. NJ: silence=non-consent; need affirmative permission; onus on party interested in sex to get affirmative consent ii. Other states: silence=consent; onus on party disinterested in sex to clearly communicate feelings to e. Force: State-by-State Requirements i. NC: Actual force need not be shown in order to establish force sufficient to constitute an element of crime of rape. Threats of serious bodily harm which reasonably induce fear thereof are sufficient (constructive force); Alston 1. What is required in Alston: a. Must be used by to achieve non consensual sex b. Must also cause V to specifically be afraid of so that at that moment she gives into sex (general fear is not enough; must be something just did as opposed to general history between parties; limit thinking to moments just before the act occurred) 2. Altson says act not a crime because non-forcible sex , but still nonconsensual sex (here raped, but not by a rapist) ii. MD: the evidence must warrant a conclusion either that the V resisted or that she was prevented from resisting by threats to her safety (implied threats are enough); Rusk v. State 1. Intermediate court: based on reasonable fear (objective standard); 2. High court: same reasonableness standard, but jury question to determine credibility; 37

iii. PA: Forcible compulsion includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against the persons will; Berkowitz 1. Significant factors to be weighed for moral, psychological or intellectual force: respective ages of the V and the A; the respective mental and physical conditions of each; the atmosphere and physical setting in which the incident was alleged to have taken place; the extent to which the A may have been a position of authority, domination, or custodial control; and whether the V was under duress 2. absent moral, psychological or intellectual factorsV needs to vigorously resist; saying no is NOT enough; or must use threats that would overcome the will of ordinary V because she fears grievous injury iv. NJ: force= any degree of physical power or strength used against the V, even the act of penetration itself; State of NJ 1. shifting of concern to what does; move away from resistance; does NOT require the V to have demonstrated non-consent 2. forcible = need not go beyond penetration
v. Force Overview: 1. Consent + lots of forceNOT RAPE

2. Threats of force: a. Most courts: must be threats of physical harm b. NC: must intend that threat to achieve sex (not to generally make V afraid of them) and V must understand the threat in that way (must give into nonconsensual sex because of that threat) c. MD: threats can be express or implied d. PA: Vs fear must be reasonable (objective standard), moral, psychological or intellectual threats ok
3. Proportionality: threats of force v. use of actual force a. Actual force: more physical injuries b. U: encouraging committing crime in less harmful way (use only threat; if dont succeedmaybe theyll stop) 4. Proving Force a. MD: force tied to resistance b. Does lack of physical resistance = lack of force? i. preemptive use of force; V never has a chance to resist (clubbing over head) ii. NJ: new definitions of force; penetration alone is enough (no need to consider resistance); moving away from conduct if the V; focus alone on conduct of the 1. Avoids message of PA: V needs to vigorously resist and bring force upon herself; resistance generates more physical harm a. BUT: actively resisting: less psychological harm; less regret? E.g. camping trip story 2. Most women NOT conditioned to resist: school boy playground rules; requiring resistance doesnt reflect properly the way Vs behave

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f. Overview/Considerations: i. Lack of consent + without specific forceNOT RAPE (NC, MD) ii. force can consist of moral, psychological or intellectual force (NJ, PA) iii. sexual penetration may = force (NJ) 3. Mens Rea of Rape: General Intent a. McKinnon i. says law: a mans perception of what the act is; not much differs between sex and rape ii. I was raped, but not by a rapist un-redressed harms iii. Spheres of consent: underage girls (no sexual freedom) vs. prostitutes (not rapable) b. Rape Shield Laws: generally evidence of Vs sexual history not admissible; purpose to exclude because prior sexual history unjustly affects credibility of claim that sex is non-consensual; i. Exceptions apply when the evidence: 1. proves V had a prior relationship with accused 2. proves V was/is a prostitute (not rapable) 3. rebuts evidence that V failed to engage in sex or sex acts during a given time period 4. rebuts evidence that was source of semen 5. In the interests of justice ii. Mistaken Belief Defense: does the mistake negative the mens rea requirement; You can tell what the mens rea is by analyzing the mistake defense 1. General Intent Requirement a. intent to forcibly compel another to engage in sex or sodomy i. implicit: knowledge, awareness, belief that the person doesnt want to have sex (underlying: must have an awareness that the had an awareness/believed that V HADNT consented) 2. NY/CA: Honest/good faith must be credible (testimony must be believed)NY is purely elemental, need not be reasonable (CA: People v. Williams-must have substantial evidence of equivocal conduct on the part of the female; must be an air of reality) a. Mens Rea with respect to Vs lack of consent: must be knowing 3. MA: No mistake will ever be enough (e.g. statutory rape) a. Mens Rea with respect to Vs lack of consent: strictly liable; MA courts analogized to statutory rape case 4. MAJORITY: reasonable, good faith mistakes a. Mens Rea with respect to Vs lack of consent: negligence 5. MPC: negligent mistake is a defense a. silent statute: reckless mens rea
c. NY: i. Resistance: forcible rape even though no resistance? 1. some courts lack of resistance is Rusk like 2. what force is enough: has not adopted CA penetration; NY requires a bit more: a. NY: ripping off clothes; picking up and moving to another location; pinning shoulders down

39

GENERAL DEFENSES TO CRIMES 1. Categories: a. Failure of proof i. Mistake defenses; because of mistake of factfailure of proof of mens rea b. Offense modifications i. Specific to one or two types of crimes; e.g. felony murder in 1. i.e. NY Burnholdt defense regarding participants in crimes c. Justifications i. All elements are met BUT not a criminal act (even though element of social harm is met); not an unlawful killing because of additional facts/circumstances; not particular to one offense d. Excuses i. All elements are met, BUT actor not culpable; disability that exits that eliminates moral blameworthiness) e. Non-exculpatory public policy defenses i. statute of limitations; diplomatic immunity; judicial, legislative, and executive immunities; incompetence to stand trial 2. JUSTIFICATION a. SELF-DEFENSE: one can use force in self defense if one reasonably believes one needs such force to protect oneself from imminent use of unlawful force. I. REQUIREMENTS: 1. necessity: may not use deadly force if nondeadly force will apparently suffice 2. imminence: 3. unlawfulness: 4. proportionality: a person is not justified in using force that is excessive in relation to the harm threatened; 5. reasonableness: based on reasonable appearances rather than on objective reality; if reasonably believes and has objective grounds for believing that such force is necessary to repel an imminent unlawful attack

ii. DEADLY SELF DEFENSE: 1. deadly force: intended to cause death or serious bodily injury; regardless of whether V dies 2. Proportionality rules: 1. deadly can be used to respond to deadly 2. non-deadly can be used to respond to deadly 3. deadly cannot be used to respond to non-deadly (even if this is the only way to avoid the injury; the V must suffer the assault of being punched if only other option is to push assailant into oncoming traffic)

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SELF DEFENSE MPC 3.04

(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

NY 10.00
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person,

unless:

(2)

LIMITATIONS on Justifying Necessity for Use of Force.

(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or PROVOCATION/AGGRESSOR (b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or AGGRESSOR EXCEPTION: WITHDRAWING & EFFECTIVELY COMMUNICATING WITHDRAWAL (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

(a) The use of force is NOT JUSTIFIABLE under this Section: (i) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or (ii) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this LIMITATION SHALL NOT APPLY IF: (A) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or (B) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3.06; or (C) the actor believes that such force is necessary to protect himself against death or serious bodily injury.

(b) The use of DEADLY FORCE IS NOT JUSTIFIABLE under this Section
UNLESS the actor believes that such force is necessary to protect himself

against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat;
NOR IS IT JUSTIFIABLE IF:

2. A person may not use DEADLY PHYSICAL FORCE upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or RETREAT-EXCEPT DWELLING (BUT NOT THE INITIAL AGGRESSORS) (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or PROVOCATION/AGGRESSOR-SAME ENCOUNTER (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, RETREAT
EXCEPT THAT :

(A) the actor is not obliged to retreat from his dwelling or place of work, UNLESS he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and RETREAT-EXCEPT DWELLING (UNLESS WAS THE INITIAL AGGRESSOR) & WORK (BUT CANT ALSO BE THE INITIAL AGGRESSORS TOO) (B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed. (c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action. (3) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.

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DISTINCTIONS
1. authorized to protect self and others from deadly physical force, kidnapping, rape 2. present occasion more broad --relaxes imminence? 3. Aggressor limitation only for DEADLY FORCE; actors purpose must be to cause death or serious bodily injury 4. Duty to retreat only if deadly force except home or work (unless aggressor works there too) Modified by 3.09 (1) The justification afforded by Sections 3.04 to 3.07, inclusive, is UNAVAILABLE when: (a) the actor's belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest that he endeavors to effect by force is erroneous; and (b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search. NO Mistake of law (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. Negligence or reckless mistake depending on the mens rea req of the offense (3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons NO transferred intent Hard to prove: must show took an unjustifiable risk (gross deviation) in light of circumstances 1. authorized to protect self and others from deadly physical force 2. aggressor limitation for BOTH deadly and nondeadly (unless withdrawal + communication); intent to cause physical injury is enough 2. No duty to retreat if believes other person is committing or attempting to commit kidnapping, forcible rape, forcible criminal sexual act, or robbery; burglary when person is in occupied bldg

iii. LIMITS OF SELF DEFENSE 1. AGGRESSORS: clean hands approach; one whose affirmative unlawful act reasonably calculated to produce and affray foreboding injurious or fatal consequences, 1. Five features of aggression: i. A person is an aggressor even if he starts a nondeadly conflict (not in MPC) ii. It is incorrect to state that the first person who uses force is always the aggressor 1. i.e. unlawfully brandishing a weapon in a threatening manner, but who does not use it is an aggressor); the person threatened, who first uses force can still claim SD-U.S. v. Peterson; a. proportionality issues: e.g. brandishing gun upon discovering V was stealing windshield wipers; b. limited rights for defense of property
iii. It is possible to have multiple aggressors: nothing in the definition requires a to initiate provocation iv. a person is NOT an aggressor if his conduct, no matter how provocative is LAWFUL

42

1. e.g. Most states: Words NOT enough to qualify as an aggressor for SD v. the issue of whether a lost the right of SD in a conflict is ordinarily left to the jury to decide on the meaning of the term aggressor vi. may arm himself in order to proceed upon his normal activities, even if he realizes the danger may await him (but remember retreat rules) 2. Regaining the right of SD: rule of renunciation: i. DEADLY FORCE: in the event that he communicates to his adversary his intent to withdraw either expressly or impliedly and in good faith attempts to do so is he restored to his right of self-defense 1. Rule is strictly applied II. NON DEADLY FORCE 1. Many cts: when Aggressor initially used nondeadly force, but adversary responds with deadly forceA automatically regains rt of SD a. If fails to retreat when could do so; some states mitigate to manslaughter 2. Some cts: must find obviously safe retreat, if V pursues himthen may use deadly force; NY? iii. HYPO (Note 3, pg 491): 1. A attacks B with his fists 2. B defends himself and subdues A to the floor 3. B starts to batter As head savagely against the floor 4. A manages to rise, and since B is still attacking him and A now fears if thrown again to the floor, he will die, A uses a knife 5. Analysis: a. At point 3, Bs act is unlawful (batters head savagely) because it is disproportional to As attack b. MPC A doesnt not qualify as an aggressor; purpose was not to kill c. NY and common law: A doesnt qualify as an aggressor 2. RETREAT: before responding to person threatening you: is there an apparent, reasonable escape route which would provide complete safety; only associated with deadly SD (NY, MPC) 1. majority of states retain 2. EXCEPTIONS: i. Castle (even where V is co-dweller); work (MPC)-limits and deters people who want to make threat 1. NY: castle only (but NOT if person was the initial aggressor) ii. if no guarantee of complete safety iii. must know of escape option (apparent) iv. Aggressor requirement as separate initial inquiry 1. Hypo (note1 A, pg 491): bully threatens to kill if she walks along her daily route again; arms self with licensed gin, visible to onlookers; V approaches menacingly, shoots and kills a. not an aggressor, does have right of SD: 43

i. act not unlawful; ii. A may arm himself in order to proceed upon his normal activities, even if he realizes the danger may await him b. BUT under MPC, SD claim fails because she fails to retreat i. MPC 3.04 requirement: complying with demand that she abstain from any action that she had no duty to take ii. Implication: bullies can threatenhalf the states have rejected rule of retreat (FL); can stand your ground 3. REASONABLENESS 1. Apply all elements i. What did believe? ii. Was his belief reasonable?

2. NY: mixed objective-subjective standard; i. SD as complete defense: so no partial/mitigationif no SD, could be completely liable for intentional, knowing crime (conscious objective to kill) ii. Subjective elements: determination of reasonableness based on circumstances facing the or his situation (encompasses more than the physical movements of the potential assailant): 1. any relevant knowledge the had about that person 2. physical attributes of all persons involved, including the 3. any prior experiences had which could provide a reasonable basis for a belief that another persons intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances iii. Other controversial subjective considerations 1. clothing worn by potential assailants 2. race, gender, age of and potential assailants 3. Remember: conscious objective to kill not necessarily inconsistent with SD; must still make out all elements of offense to get to SD (Goetz subway case)
4. Reasonable belief and gender: i. Affects proportionality 1. No alternative for battered woman: relax rule for small woman; allowing claim based sheerly on necessity 2. necessity proportionality

ii. Imminence: the justification of SD is to be evaluated in light of all the facts and circumstances known to the , including those known substantially before the killing 1. Fair/reasonable because is aware of and thinking about all facts at the time (Wanrow)

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iii. Battered Womans Syndrome: testimony meant to prove her reasonable belief that it was necessary to kill 1. preemptive SD 2. Problematic because missing imminence of the harm (e.g. when assailant is unconscious): worry about Vs taking the law into their own hands a. to ensure that SD is necessary; lack of imminence= lack of necessity b. Rationale: i. abuser might stop ii. other options (police, etc.) iii. waiting until heat of battle c. **BUT undermines gender-power issues; lack of realistic alternatives
4. SD overview 1. SD is universal, not particular to the itself; doesnt require person facing the threat to be the only one who carries out; i. Message: this is the right thing, this is lawful ii. even if fulfills elements of accomplice, other person will have justification 2. defensive force justification: i. person who is V is someone who was attacking 1. SD; Defense against forcible rape; kidnapping; others 5. Rationale: 1. moral forfeiture: death of would-be rapist outweighed by harm of rape; V forfeited right to life 2. moral superiority: morally superior person empowered with right to kill morally inferior 3. lesser harms theory: society suffers lesser harms to avoid greater harms (harm to sexual autonomy) dominates thinking about justification defenses

b. Non-defensive Force Justification: General NECESSITY Defense i. Captures lesser harm theory ii. CHIEUS COMMON LAW ELEMENTS mixed objective-subjective standard (State v Nelson stolen highway truck case); 1. The had to have done the act to prevent a significant evil 2. No adequate alternative 1. Harm caused must be less than harm sought to avoid (lesser harm theory) i. NOT just about personal benefitmore about general welfare of the community; ii. also only assume what is reasonably foreseeable to him at that moment 3. Need to do the act must have been immediate and dire 4. Limited to threats from natural forces

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1. Statutes
COMMON LAW ELEMENTS mixed objective-subjective standard (State v Nelson stolen highway truck case); *The had to have done the act to prevent a significant evil *No adequate alternative **Harm caused must be less than harm sought to avoid (lesser harm theory) ***NOT just about personal benefitmore about general welfare of the community; ***also only assume what is reasonably foreseeable to him at that moment *Need to do the act must have been immediate and dire *Limited to threats from natural forces Other Common law considerations 1. the actor must be faced with a clear and imminent danger 2. the must expect, as a reasonable person, that his action will be effective in abating the danger that he seeks to avoid; causal relationship between action and harm averted 3. there must be no legal way to avert the harm 4. the harm that will cause must be less serious that the harm he seeks to avoid a. s actions should be weighed against the harm reasonably foreseeable at the time b. whether s value choice was correct (as opposed to his belief that it was correct) 5. the law makers must not have anticipated the choice of evils and determined the balance to be struck in a manner in conflict with s choice. 6. Clean hands; must not have wrongfully placed himself in a situation which he would be forced to engage in criminal conduct DISTINCTIONS 1. No limitations (natural forces, homicide cases, other harm) 2. No imminence req! 3.Defense not automatically lost if fault (partial defense) if reckless, no defense for offenses with reckless or negligence culpability req NECESSITY MPC 3.02 Choice of Evils (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. NY 35.05 (2) 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.

1. Sometimes limited to emergencies created by natural forces 2. arguably does not apply in homicide case 3. some limit the defense to persons and property (no protection of reputation or economic interests)

1. If faultNO defense 2.No limitations for natural forces, homicide 3. Objective: reasonable person in their situation 4. public or private injury

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iii. Distinguishing from Dudley & Stephens 1. Hypo: doctors choose to separate conjoined twins. The surgery is certain to kill one twin. Without the surgery both twins certain to die because one is sucking the life out of the other; (Note 4, pg 572) 1. Distinguish Dudley & Stephens: i. doctors not the one about to die, but still have privilege ii. double-effect doctrine: if doctors could save Marys lifethey would; as opposed to Dudley and Stephens who wanted boy to die iii. certainty: certain that both twins will die 3. EXCUSE DEFENSES: doesnt excuse the harm; excuses the particular person; keeping commitment to free will a. DURESS i. ELEMENTS: 1. an immediate threat of death or serious bodily injury 1. must be specific; immediate: no future threats 2. well grounded fear that threat will be carried out 1. objectivity: will deny defense to scaredy cats 3. no reasonable opportunity to escape 1. any reasonable obstruction ok (even corrupt cops, Contento-Pachon) 4. free from fault 1. must not have made himself susceptible to duress (i.e. joining gang) 5. has to be facing a criminal charge for the very behavior the coercer wanted him to do ii. Application to Prison Escapees (Green) 1. Problems with NECESSITY defense: 1. Immediacy; natural forces problem (assuming common law) 2. lesser harm: harm caused by escaping (maintain prison discipline; risk to society of escaped convicts) less than harm escapee avoids? 3. court concerned about message future escapees 4. Some jurisdictions: if escapee makes a bona fide claim and then returned to prison after necessity has subsided 2. Problems with DURESS: 1. Immediacy 2. Free from fault: 3. Facing charge of escape, NOT what person threatening them wanted them to do 3. So, no real defense available to prison escapees!

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iii. Statutes:
COMMON LAW
1. an immediate threat of death or serious bodily injury a. must be specific; immediate: no future threats 2. well grounded fear that threat will be carried out b. objectivity: will deny defense to scaredy cats 3. no reasonable opportunity to escape a. any reasonable obstruction ok (even corrupt cops, Contento-Pachon) free from fault 4. must not have made himself susceptible to duress (i.e. joining gang) 5. has to be facing a criminal charge for the very behavior the coercer wanted him to do

DURESS MPC 2.09

(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged. (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. [The presumption that a woman acting in the presence of her husband is coerced is abolished.] (4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not preclude such defense. (NECESSITY)

NY 40.00
1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. 2. The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.

DISTINCTIONS
Similarities to Common Law: 1. Unlawful source=must be must be human coercion (no situational distress, like Dudley and Stephens) 2. only threats to bodily integrity 3. clean hands depending on mens rea 4. objective standard: person of reasonable firmness Distinct from Common Law: 1. No requirement of imminent deadly threat (may successfully plead duress upon non-deadly or future threats, or even as the result of prior use of non-deadly force depends on reasonable persons reaction; brainwashing may be OK 2. defense may be raised in murder prosecution 3. no requirement that imperiled person be a family member 1. No limitation for homicide BUT not affirmatively allowed either 2. clean hands NO fault 3. imminency req 4. no requirement that imperiled person be a family member

iv. Duress as Defense to MURDER 1. Some courts reject altogether: duress is no defense for killing an innocent person; person ought to rather die himself than escape by the murder of an innocent (Blackstone) 1. Some courts base on lesser harm theory (avoid valuation for lives; but what if 2 lives v 1 life), People v Anderson i. BUT not about choice of evils; duress not about lesser harm; harm is admittedabout culpability 2. Some courts allow for mitigation to manslaughter (partial defense) 48

b. DIFFERENCES BETWEEN NECESSITY AND DURESS i. Necessity: lacks actus reus; Duress: lacks mens rea: 1. but in reality NOT denying he did it (Green) ii. Distinction between natural and human threats: 1. no real substantive differences: a lot of states have abandoned distinction iii. General welfare (necessity) v. Private welfare (duress) 1. BUT society interested in many instances of private welfare i.e. need to avoid prison rapes and cruel and unusual punishment iv. Necessity as justification; Duress as excuse: 1. all about the message; necessityright thing to do; duressstill a harm
C.

INTOXICATION i. Specific Intent v. General Intent Distinction 1. Typically intoxication is NOT a defense to general intent crimes

ii. Voluntary v. Involuntary: Three Approaches to Involuntary Intoxication: 1. To be a complete defense, without regard to mens rea 2. NY: to negate element including all types of mens rea 3. MPC: To prove insane-like mental state; 1. Ask: did the person have substantial capacity to appreciate criminality of the offense (even if involuntarily intoxicated, e.g. drugged, person still may have capacity to appreciate conduct) iii. Statutes:
INTOXICATION COMMON LAW
1. Intoxication is NOT a defense to general intent crimes; is NOT permitted to introduce evidence that because he was intoxicated, he became confused and V consented (consistent with traditional view of mens rea) 2. voluntary intoxication typically constitutes reckless conduct

MPC 2.08
(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense. (2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial. (3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01. (4) Intoxication that (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law. (5) Definitions. In this Section unless a different meaning plainly is required: (a) "intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body; (b) "self-induced intoxication" means intoxication caused by substances that the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime; (c) "pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.

NY 15.25
Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

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INTOXICATION COMMON LAW MPC 2.08 Distinctions

Will acknowledge involuntary intoxication only to prove insane-like mental state (could still have awareness) Vol intoxication: evidence admitted ONLY if negates any element including all types of mens rea NY 15.05 Reckless distinction for voluntary intoxication; can never get off for reckless crimes
D.

NY 15.25

To negate any element including all types of mens rea

INSANITY i. Tests 1. MNaghten Test: cognitive component: is insane if: 1. She did not know the nature and quality of the act that she was doing; or i. Hypo: A believes carving fruit; actually carving Vs head 2. If she did know it, she did not know what she was doing was wrong i. Hypo: A believes V is taking over the world and going to kill A 3. Criticism: i. No volitional component ii. Must decipher meaning of wrongfulness (see MPC) 1. legal wrong 2. moral wrong a. personal morals b. societal morals c. misperception of reality

2. Irresistible Impulse: volitional component: is insane if: 1. She acted from an irresistible and uncontrollable impulse i. Lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free agency was at the time destroyed ii. The s will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control 3. The Product Test (Durham): causal link is key 1. A person is excused if her unlawful act was the product of a mental disease or defect; i. Sociopathy NOT described as a mental disease or defect 2. Criticism: i. What is mental disease or defect? 1. ceding to medical decision makers, not legal decision makers 4. MPC: cognitive + volitional 1. A person is not responsible for her criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, she lacked substantial capacity to: i. Appreciate the criminality (wrongfulness) of her conduct; or 50

ii. To conform her conduct to the requirements of the law 2. Distinctions: i. Cognitive + Volitional elements ii. Substantial: need not show total incapacity to control ones self or appreciate their behavior iii. Appreciate as opposed to know 1. to excuse all those who have superficial understanding of right and wrong, but lack deeper understanding of right and wrong iv. Wrongful/Criminal 1. Jurisdictions that adopt wrongfulness over criminality: suggests understanding of moral wrongness 2. Three interpretations of morality (State v Wilson) a. Contrary to public morality i. Synonymous with criminality; acts contrary to public morality = penal code ii. Deity exception b. Contrary to ones own conscience (personal morality) i. Rejected by all states c. Misperception of reality i. A does not truly appreciate the wrongfulness of his
conduct if a mental disease or defect causes him both to harbor a distorted perception of reality and to believe that, under the circumstances as he honestly perceives them, his actions do not offend societal morality, even though he may also be aware that society, on the basis of the criminal code, does not condone his actions (State v Wilson)

ii. E.g deific command

5. Federal Test 1. A person is excused if she proves by clear and convincing evidence, that at the time of the offense, as the result of a severe mental disease or defect, she was unable to appreciate i. She nature and quality of her conduct; or ii. The wrongfulness of her conduct ii. Definition of Insanity: standard is high to exclude certain mental diseases/defects that policydriven approach says s still culpable 1. e.g. sociopaths
iii. Statutes
INSANITY

COMMON LAW
MNaghten Test: cognitive disability A person is insane, if at the time Of her act, she was laboring under such a defect pf reaspn, arising from a disease of the mind, that she: 1. Did not know the nature and quality of the act that she was doing; or 2. If she did know it, she did not know what she was doing was wrong Criticisms: 1. knowledge/ nature and quality 2. wrongfulness?

MPC 4.01
A person is not responsible for her criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, she lacked substantial capacity to: 1.Appreciate the criminality (wrongfulness) of her conduct; or 2. To conform her conduct to the requirements of the law

NY 40.15
In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

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INSANITY

COMMON LAW
Irresistible Impulse: volitional component Broadens scope of MNaghten A person is insane, if at eth time of the offense: 1. She acted from an irresistible and uncontrollable impulse 2. Lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free agency was at the time destroyed 3. The s will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control Criticisms: 1. Requires total incapacity (but not necessarily relevant in practice); cts may allow evidence of planned behavior, as long as lacked ability to control conduct 2. Difficult to determine what is irresistible and what is impulse The Product Test (Durham): causal link is key A person is excused if her unlawful act was the product of a mental disease or defect; Criticism: ceding to medical decision makers, not legal decision makers

MPC 4.01
Distinctions: 1. Cognitive + Volitional elements 2. Substantial: need not show total incapacity to control ones self or appreciate their behavior 3. Appreciate as opposed to know to excuse all those who have superficial understanding of right and wrong, but lack deeper understanding of right and wrong; affective knowledge: absent unless the actor can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she actsz 4. Wrongful/Criminal Jurisdictions that adopt wrongfulness over criminality: suggests moral component of wrongness, not simply ties to illegality

NY 40.15
Distinctions: 1. No volitional test 2. Know OR appreciate: meaning either will satisfy; can show insanity by proving failure to appreciate 3. substantial capacity

FEDERAL TEST A person is excused if she proves by clear and convincing evidence, that at the time of the offense, as the result of a severe mental disease or defect, she was 1. unable to appreciate the nature and quality of her conduct; or 2. The wrongfulness of her conduct Criticism: 1. proof of severe mental disease or defect 2. Requires total incapacity

d. Cultural Defenses and de minimus statute (MPC + about 5 states) i. MPC 2.12 de minimus statute The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct: 1. was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; or a. (CONSENT issue) 2. did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or a. (no harm, no foul) 3. presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense. a. was this in the mind of the LEG; did it contemplate that people would commit these acts in an unharmful way b. searching for harm: is this a justification defense or an excuse; i. most courts and commentatorsexcuse ii. Other safety valves besides de minimus statutes: 1. prosecutorial discretion 52

2. jury nullification: jury can say elements fulfilled, but still acquit 3. sentencing: cruel and unusual punishment; leniency a. BUT collateral consequences: deportation; sex offender provisions; felony disenfranchisement; suspended sentence may take a while to kick in meanwhile some form of punishment was imposed from the get-go (i.e. child welfare case) iii. Problems with cultural defenses 1. really buying into the fact that the culture doesnt think its harmful? a. what about practices like genital mutilation? e. Overview: internal and external forces requirement i. intoxication and insanity: must be internal forces 1. vs. external indoctrination (Cabarga) a. where is the stopping point: abuse-excuse; Menendez brothers ii. duress: external forces iii. cultural: external, but doesnt happen in a moment of time; environmental

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ATTEMPT 1. Inchoate crimes (attempt, solicitation, conspiracy) lack the usual understanding of social harm 2. Two categories of attempt a. Complete: actor has done everything physically necessary in their power to commit crime, but through some fortuitous event he isnt successful i. Distinguish: transferred intent 1. attempt: no harm; transferred intent: hurts someone else b. incomplete: where actor does some act, but doesnt do them all for some reason doesnt get to final acts c. Why the distinction between complete and incomplete? i. Line drawing more difficult in incomplete attempts: which behavior is innocent ii. McQuirter case: man follows woman and kids 3. Subjectivism a. Zero on in what was trying to do: look to mens rea b. Whether there is any act that corroborates suspected mens rea 4. Objectivism a. Focus on acts alone would they raise suspicions (absent suspicions about moral culpability)

5. Rationales for criminalizing attempt a. U: prevention of future harm; allows police to intervene earlier i. Not necessarily deterrence: because attempters are attempting a more serious offense b. R: same moral culpability; make the same choice as a rapist
6. Dual Mens Rea of Attempt: a. Actor intends to commit the physical acts that constitute the attempt b. Actor does such physical acts with the specific intent of committing the target, substantive crime i. Specific intent to rape; kill 1. So even though various mens rea alternatives are available to prove murder; other alternatives NOT enough to prove attempted murder for which only intent will suffice ii. Inherent in the understanding of attempt is the objective to commit the completed crime 1. no such charge of attempted reckless murder; attempted felony murder 2. perhaps aggravated assault 3. only intentional crimes in which can be accused of attempting: e.g. attempted voluntary manslaughter: still intent to kill iii. can only attempt intentional crimesBUT THIS APPARENTLY MEANS INTENT AS DEFINED IN THE COMMON LAW (WHICH INCLUDES KNOWING AND INTENTIONAL CRIMES) THIS WAS VERY TRICKY ON OUR EXAM! SO YOU CAN ATTEMPT A KNOWING CRIME (LOOK AT DRUG CRIMES IN THE NYPL)*****************************

7. Tests for Attempt: looking at actus reus a. Objective approach: look at acts alone are they evidence of criminality/suspicious acts b. Subjective Approach: try to decipher s mens rea

Conduct of hypothetical law abiding citizen

s conduct

Conduct of hypothetical who is guilty of completed crime

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c. Dangerous Proximity Test: a person is guilty of attempt when her conduct is in dangerous proximity to success or when an act is so near the result that the danger of success is very great i. Holmes three factors 1. nearness of the danger 2. greatness of the harm 3. degree of apprehension felt ii. Ask: would the have completed the offense but for the intervention? 1. Problems a. if victim is absent: need more actus reus: (People v. Rizzo) b. Note 2, pg; BUT perhaps in view of the seriousness of the planned offense and the degree of apprehension felt by the officers who observed the s actions 2. Message to cops: be patient and wait for more actus reus; 3. Otherwise punish for mens rea alone (bad thoughts and bad thoughts) iii. NY lang: 110.00: conduct which tends to effect the commission of such crime; continues to be interpreted as dangerous proximity d. Physical Proximity Test: while it need not reach the last act, the actors conduct must be proximate to the completed crime, in that it must approach sufficiently near to it stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made i. Distinct from dangerous proximity: concerned with physicality; how physically close to V/committing the crime ii. Similar to dangerous proximity: still looking at the gap e. Indispensable Element Test: does the have everything he needs to commit the crime otherwise has not yet crossed the line from preparation i. Even if element is not within their control: i.e. presence of the V ii. Again looking at gap that separate attempt crime from completed crime f. Probable Desistance Test: centers on how far has proceeded; the actor reached a point where it was unlikely he would have voluntarily desisted from his effort to commit the crime i. centers on how far has proceeded; focuses on mental state of ii. not focusing on possibility of stoppingrather is it unlikely that will stop g. The Abnormal Step Test: an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist. i. Measured up against normal citizen ii. Different gap: between conduct of hypothetical law abiding citizen and s conduct; focus on steps has taken; focus on mens rea of iii. Lenient test, easy to satisfy: do the actions of the raise your antennae 1. might lead to over-criminalization of innocent preparation h. Unequivocality Test (res ipsa loquitor): act does not constitute an attempt until it ceases to be equivocal; when a persons conduct, standing alone, unambiguously manifests her criminal intent; i. objectivist goal of reserving criminal liability for those whose conduct manifests criminality and, as a consequence, causes social apprehension ii. criticism: a later act can render act equivocal; may not adequately iii. raises the bar for abnormal step test (McCurter may get off) i. MPC Test: i. Criminal intent under the Code contains two elements: 1. The purpose to commit the target offense; and 55

2. Conduct constituting a substantial step toward the commission of the target offense ii. Ask: 1. Does the case involve a complete to incomplete attempt? 2. If the case involves a complete attempt, is the target offense a result crime sub (b) or a conduct crime sub (a)? 3. If incompletesubsection c: did the take a substantial step iii. Mens Rea: 1. generally a person is guilty of criminal attempt if it was her purpose or conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense 2. Exceptions: a. Result crimes: a person is guilty of an attempt ro cause a criminal result if she believes that the result will occur, even if it were not her conscious object to cause it 5.01(1)(b) b. The mens rea of purpose or belief does not necessarily encompass the attendant circumstance of the crime iv. Actus reus 1. one who engages in such purposive conduct is sufficiently dangerous to justify state intervention, even if she is not yet close to consummation of the offense a. Substantial step: i. conduct is not a substantial step unless is strongly corroborates the s criminal intent: the actors conduct, considered in light of all the circumstances, must add significantly to other proof of her criminal intent, such as a confession or other incriminating evidence ii. BUT not objective: doesnt require that s conduct by itself manifest criminality iii. List of substantial steps if strongly corroborative of s purpose that shall not be held insufficient as a matter of law (if jury convicts of attempt, V may not be overturned on the grounds that the step was insubstantial) b. Attempt to aid: i. A person may be convicted of criminal attempt, although a crime was neither committed nor attempted by another, if 1. the purpose of her conduct is to aid another in the commission of the offense; and 2. such assistance would have made her an accomplice in the commission of the crime under the Codes complicity statute if the offense had been committed or attempted c. Defenses: i. Impossibility: entirely subjective; abolishes the defense of hybrid legal impossibility 1. 1(a) a is guilty of an attempt to cause criminal conduct: if the circumstances were as she believed them to be; corroboration of s criminal purpose is not required 2. 1(b) a is guilty of attempting an particular result if with the purpose of causing or with the belief that it would cause such a result without further conduct on

56

s part; corroboration of s criminal purpose is not required 3. 1(c) if performed acts that under the circumstances as he believed them to be constituted a substantial step toward the commission of the crime

ii. Pure Legal Impossibility: not abolished course of conduct or result must constitute a crime
iii. Renunciation (Abandonment) 1. A person is not guilty of attempt if a. She abandons her effort to commit the crime or prevents it from being committed; and b. Her conduct manifests a complete and voluntary renunciation of her criminal purpose 2. BUT renunciation is not complete if it is wholly or in part motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. 3. ALSO not complete if it is wholly or in part motivated by circumstances, not present or apparent at the inception of the actors course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose

d. Grading 5.05 i. The crimes of attempt, solicitation, and conspiracy are offenses of the same grade and degree, i.e. subject to the same punishment, as the offense attempted, solicited, or that is the object of the conspiracy ii. Exception: crimes that carry a maximum penalty of life imprisonment felonies of the first degree; attempt to commit one of these crimes constitutes a felony of the second degree, the maximum penalty of which is ten years
e. Special Mitigation: i. The Code grants the trial judge authority to dismiss a prosecution of an inchoate offense, or to impose a sentence for a crime of lower degree than is otherwise allowed, if the actors conduct was so inherently unlikely to result in a crime that neither she nor her conduct represents a danger to society justifying her conviction and punishment at ordinary levels 1. e.g. tries to sink a battleship with a bb gun. j.

a. Application of MPC (State v. Reeves) i. Students did not get to put poison in the coffee ii. Incomplete attempt: did the s take a substantial step 57

1. 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; 2. possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission
b. Borrows from bests of all tests i. More inclusive than last proximate act, but less inclusive than equivocal test k. Application of tests: pg 752; hypo i. Proximity tests: no V present ii. Probable desistance: unlikely to desist: depends on voluntary desistance 1. test is not l. Proportionality/Punishment i. NY: drops attempts down a grade 1. exception: highest level of crimepunishes the same (MPC system); moral choice is more heinous ii. MPC: punishes the same 1. Rationale: moral culpability is the same 2. exception for capital crimes: punished at lesser degree (NY system) iii. Common Law: punished attempts at half the maximum of completed offense

NY 110
110.00: Attempt to commit a crime A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. 110.05 Attempt to commit a crime; punishment An attempt to commit a crime is a: 1. Class A-I felony when the crime attempted is the A-I felony of murder in the first degree, criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, criminal possession of a chemical or biological weapon in the first degree or criminal use of a chemical or biological weapon in the first degree; 2. Class A-II felony when the crime attempted is a class A-II felony; 3. Class B felony when the crime attempted is a class A-I felony except as provided in subdivision one hereof; 4. Class C felony when the crime attempted is a class B felony; 5. Class D felony when the crime attempted is a class C felony; 6. Class E felony when the crime attempted is a class D felony; 7. Class A misdemeanor when the crime attempted is a class E felony; 8. Class B misdemeanor when the crime attempted is a misdemeanor.

5.01 Criminal Attempt

1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, (WHICHEVER MR IS REQD FOR ATTENDANT CIRCUMSTANCES)he: COMPLETE ATTEMPTS: (a) purposely engages in CONDUCT that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular RESULT is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or INCOMPLETE ATTEMPTS: (c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

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(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 of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (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. ABANDONMENT DEFENSE (4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention. Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

5.05. Grading of Criminal Attempt, Solicitation and Conspiracy; Mitigation in Cases of Lesser Danger; Multiple Convictions Barred. (1) Grading. Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense that is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree. (2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense under this Section, the Court shall exercise its power under Section 6.12 to enter judgment and impose sentence for a crime of lower grade or degree or, in extreme cases, may dismiss the prosecution.

8. DEFENSES: TO ATTEMPT CRIMES a. IMPOSSIBILITY: applies to completed and incomplete attempts; because of s mistake of fact or law, his actions could not possibly have resulted in the commission of the substantive crime underlying an attempt charge i. FACTUAL AND PHYSICAL IMPOSSIBILITY: has committed all the acts of the intended crime, but the crime itself has not occurred due to non-existence of a necessary attendant circumstances, that is unknown to the or beyond the s control 1. classic examples: a. pick pocket attempts to steal, V has nothing in pocket b. his mistake doesnt make his act lawful 2. is no defense in ANY jurisdiction

ii. PURE LEGAL IMPOSSIBILITY: when criminal law doesnt prohibit s conduct or the result that she has sought to use; makes defense that their actions dont constitute a crime; e.g. adulterer may believe adultery is still a crime (reverse mistake of law) 1. All jurisdictions accept iii. HYBRID LEGAL IMPOSSIBILITY: has committed all the acts of the intended crime, but the crime itself has not occurred due to the lack of a particular characteristic, This characteristic is necessary in determining the criminality of the acts 1. factual mistake about legal status of some attendant circumstance that constitutes an element of the charged offense 59

2. e.g. Lady Eldon smuggling French lace; thought lace had high value and had to pay high duties, but lace not actually worth much and NOT subject to duties 3. Common law: recognizes the defense; NY, and MPC DO NOT RECOGNIZE! iv. DISTINCTION BETWEEN FACTUAL AND HYBRID: take away circumstance and entire act becomes LEGAL, as opposed to pickpocket reaching into empty pocket (what hes doing still commits a crime) b. Application: i. (People v. Thousand) Mistaken about minor 1. Statutory interpretation: does not allow for defense of impossibility; 2. attempt as a distinct offense: not charged with completing the crime 3. only the one thing that wasnt within his control made it not a completed crime
ii. attendant circumstance that was mistaken about also serves as evidence as to their mens rea;

c. NY: explicitly rejects d. ABANDONMENT: i. Abandonment 1. McCloskey; confesses to mens rea and confesses to significant acts 2. first strategy: not enough proof for attempt a. BUT passes all actus reus tests: b. Concurrence: abandonment defense works better; majority distorted test to get the result they wanted i. Masquerade happens often in states where they dont recognize abandonment
ii. Rationale for states that dont recognize abandonment 1. R: culpable, made free affirmative defenses 2. U: knowing that there is no way about, less people will try (there is social harm in trying) a. Punishment for completed crime is enough deterrence for people even preparing

iii. States that have abandonment defense: 1. Common law does NOT recognize 2. NY and MPC recognize a. Abandonment must be complete and voluntary (doesnt involve heightened risk of detection) b. NY: completed attempts; NY requires to take additional steps to prevent completed crime i. E.g. girls putting poison in the cup and then knocking it out of teachers hand ii. Calling cops
ABANDONMENT MPC
5.01 (4) ABANDONMENT DEFENSE (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 ABANDONMENT DEFENSE

NY
1. In any prosecution for an offense, other than an attempt to commit a crime, in which the defendant's guilt depends upon his criminal liability for the conduct of another person pursuant to section 20.00,

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commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention. Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.. 3. In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof. 5. A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.

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ACCOMPLICE LIABILITY 1. OVERVIEW: ACCOMPLICE AND CONSPIRATORIAL LIABILITY a. Multiparty criminal conduct: circumstances under which a person who does not personally commit a proscribed harm may be held accountable for the conduct of another person with whom he has associated himself

b. Three bases of complicity: i. Accomplice or Accessory liability: A person may be held accountable for the conduct of another person if he assists the other in committing an offense ii. Conspiratorial Liability: A person may be held accountable for the conduct of a co-conspirator who commits a crime in furtherance of their agreement. 1. the mere existence of the conspiracy is sufficient to justify liability for the others conduct; assistance in commission of the crime is not required iii. Vicarious Liability: controversy (parents and children by virtue of relationship)
c. Definition of accomplice: S is an accomplice if he intentionally assists P to engage in the conduct that constitutes the crime. i. Assists: general term to encompass many forms of conduct, including aiding, abetting, encouraging, soliciting, advising, and procuring the commission of the offense ii. Derivative liability: as a secondary party, S derives his liability from P with whom he has associated himself; Ps acts become Ss acts 1. there must have been a crime committed by another person from whom the accomplices liability originates 2. ACCOMPLICE LIABILITY: A. DERIVATIVE LIABILITY: i. must be a principal; accomplice liability depends wholly on principals liability; rests on assistance given to principal ii. typically accomplice guilty of same crimes as principal

b. PARTIES TO A FELONY: COMMON LAW i. Parties: 1. primary party (P): the person who personally commits the physical acts that constitute an offense 2. secondary party (S): any person who is not the primary party, but who is associated with him in commission of an offense is a secondary party. ii. Principal in the First Degree: is the person who, with the mens rea required for the commission of the offense: 1. Physically commits the acts that constitute the offense; or 2. Commits the offense by use of an innocent instrumentality or innocent human agent a. Innocent-Instrumentality Rule: A person is the principal in the first degree, if with the mens rea required for the commission of the offense, he uses a nonhuman agent or a non-culpable human agent to commit the crime b. Non-culpable human agent: lacks the mens rea or existence of an excusing condition iii. Principal in the Second Degree: one who is guilty of an offense by reason of having intentionally assisted in the commission thereof in the presence, either actual or constructive, of the principal in the first degree

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iv. Accessory Before the Fact: not actually or constructively present when the crime is committed. 1. Often the person who solicits, counsels, or commands (short of coercing) the principal in the first degree to commit the offense v. Accessory after the Fact: is one who with knowledge of anothers guilt, intentionally assists the felon to avoid arrest, trial or conviction 1. Offense continues until all the acts constituting the crime have ceased a. E.g. bank robbery not complete until the principal in the first degree takes possession of anothers property and carries it away to a place of temporary safety.
C.

ABROGATION OF COMMON LAW DISTINCTIONS AND PROCEDURAL BARS i. Nearly all states by leg have abrogated the common law distinctions between principals and accessories before the fact 1. before the fact accessories can be tries without regard to Ps prosecution ii. accessory after the fact is no longer treated as a party to the crime committed by the P in the 1 1. is subject to prosecution for a lesser offense: hindering apprehension of prosecution iii. Principals and accessories/Modern language: 1. Principals: a. principal in the first degree: perpetrators 2. Accomplice a. principal in the second degree: abettors (actually or constructively present and aids principal in committing crime); purpose to aid, facilitate b. before the fact (inciters); helps in preparation 3. Accessories: a. after the fact (criminal protectors)

d. ACTUS-REUS: ASSISTANCE: i. Types of Assistance 1. Assistance by physical conduct 2. Assistance by psychological influence 3. Assistance by omission (assuming the omitter has a duty to act) ii. Mere presence and knowledge (mental approval) assistance 1. mere presence + an undisclosed intention to render aid is NOT enough 2. mere presence + flightNOT enough 3. mere presence + undisclosed approval of principals conductNOT enough (tacit approval NOT enough) 4. BUT once it is determined that S assistedany aid no matter how trivial, suffices
iii. When mere presence is interpreted as more; theories of encouragement/moral support 1. payment for ticket and presence at concert where illegal saxophonist plays 2. MR: intent to aid not enough , must also prove actus reus element actual assistance a. Ct focused on s clapping at concert: speaks more to state of mind b. But still held assisted (based on moral support/encouragement view of presence and assistance)

iv. Wholly ineffectual assistance accomplice (except in MPC) 63

1. E.g. S opens window for P-burglar to enter; P doesnt realize and enters through door instead
E.

CAUSATION i. S is accountable for the conduct of P even if his assistance was causally unnecessary to the commission of the offense

f. ACCOMPLICE: MENS REA i. NY and MPC Dual Mens Rea: the accomplice must possess two states of minds: 1. the intent to assist the P to engage in the CONDUCT that forms the basis of the offense; and a. Most courts: intent=purpose/conscious objective was to assist or facilitate commission of crime 2. If result crimethe mental state required for commission of the offense/result element , as provided in the definition of the substantive crime a. may be inferred upon proof of the first 3. Distinct form dual mens rea of attempt crimes (second prongmust be intent to commit underlying crime); whereas accomplice liability 4. Application: Riley a. Exercises: pg 883
ii. Ask first: is there a principal

1. if both charged with same crime, should not have to show higher mental state for accomplice committing reckless offense
G.

ATTENDANT CIRCUMSTANCES i. Courts rarely consider whether the intent requirement applies as well to attendant circumstances ii. Proposed rule: the mens rea policies regarding the substantive offense should control the accomplices situation 1. Should be deemed an accomplice if his culpability as to the attendant circumstances would be sufficient to convict him as a principal NATURAL AND PROBABLE CONSEQUENCES i. Common law + most jurisdictions: a person encouraging a crime may be held criminally liable not only for that crime, but for any other offense that was a natural and probable consequence of that offense ii. Application: Four Questions 1. Did P commit the target crime? 2. If yes, did S purposefully assist in the commission of the crime; i.e. was S an accomplice? 3. If yes, did P commit any other crimes? 4. If yes, were the crimes, although not contemplated or desired by S, reasonably foreseeable consequences of that specific crime?

H.

i. DERIVATIVE LIABILITY OF S IN RELATION TO P i. there must have been a crime committed by another person from whom the accomplices liability originates, regardless of whether or not principal is convicted 1. undercover cop retained money from in order to secure and sell drugs and give the profit + client list 64

a. BUT principal-cop did not commit the crime of attempt; dual mens rea required for attempt missing (principal did not possess the intent to come into possession of the cocaine), ii. Common law: accessory could not be convicted of crime in which he assisted until P was convicted, and could not be convicted of a more serious offense or degree of offense than that of which the P was convicted 1. exception: homicide cases iii. Liability when P is acquitted: 1. justification defenses: no crime occurred or even that positive good resulted no crime to impute to S a. United States v Lopez; helicopter prison escape case; how to categorize i. necessity or duress 2. excuse defenses: excuses always personal to the actor; S has no right to assist a wrongful act 3. lack of mens rea: no crime made out no crime to impute to S
iv. whether S may be convicted of a more serious offense or degree of offense than the P 1. guilt of accomplice determined by his own mens rea a. e.g. so if principal claims partial self defense that mitigates murder to manslaughter, accomplice who does not claim self defense, may still be held liable for 2. especially so in homicide cases a. social harm the same, but varying degrees of homicide based on different levels of mens rea

j. LIMITS/DEFENSES TO ACCOMPLICE LIABILITY i. Legislative-exemption ii. Abandonment 1. S must communicate withdrawal to P and make bona fide efforts to neutralize the effect of his prior assistance iii. Justification: no crime committedno accomplice liability iv. Excuse: does not excuse accomplice
K.

PUNISHMENT: i. Accomplices subject to same punishment as principal

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ACCESSORIES

MPC 2.06:

LIABILITY

FOR

CONDUCT

OF

ANOTHER ; COMPLICITY .

NY: PARTIES

TO

OFFENSES

AND

ACCESSORIAL CONDUCT

1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) [acting with the kind of culpability that is sufficient for the commission of the offense], [he causes an innocent or irresponsible person to engage in such conduct]; BUT FOR CAUSATION or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense. (see #3 below) (3) A person is an accomplice of another person in the commission of an offense if: (a) with the PURPOSE (knowledge NOT enough-must be Ss conscious object) of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, (need NOT be effective aid) or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do (omitter must possess the MR required of an accompliceomission; must have failed to act with purpose of promoting or facilitating he commission of the offense); or (b) his conduct is expressly declared by law to establish his complicity. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. (Liability for crimes reckless and negligence; To determine whether a person is an accomplice in the commission of the offense: 1. determine Ps potential responsibility; 2. ask whether S was an accomplice in the conduct that caused the result; 3. ask whether S acted with the culpability in regard to the result that is sufficient for the commission of the offense) (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity. (e.g. husband can be an accomplice to his wifes rape)
DEFENSES:

20.00 Criminal liability for conduct of another When one person engages in conduct which constitutes an offense, is criminally liable for such conduct when, acting with the ment required for the commission thereof, he:

solicits, requests, commands, importunes, or intentionally aids s engage in such conduct. (less broad than MPC-closer to the commo

20.05 Criminal liability for conduct of another; no defense

In any prosecution for an offense in which the criminal liability of th based upon the conduct of another person pursuant to section 20.0 IT IS NO DEFENSE THAT:

1. Such other person is not guilty of the offense in question owin irresponsibility or other legal incapacity or exemption, or to of the criminal nature of the conduct in question or of the d criminal purpose or to other factors precluding the mental for the commission of the offense in question; (no defense ba excuse or Ps lack of MR) or

2. Such other person has not been prosecuted for or convic offense based upon the conduct in question, or has previously be thereof, or has legal immunity from prosecution therefor; o

3. The offense in question, as defined, can be committed on particular class or classes of persons, and the defendant, n to such class or classes, is for that reason legally incapable of co offense in an individual capacity. (rejects legally incapable defense)

20.10 Criminal liability for conduct of another; exemption

Notwithstanding the provisions of sections 20.00 and 20.05, a pers criminally liable for conduct of another person constituting an offen conduct, though causing or aiding the commission of such offense, that is necessarily incidental thereto. If such conduct constitut separate offense upon the part of the actor, he is liable for that offe not for the conduct or offense committed by the other person. (inevitably incident defense) 20.15: Convictions for different degrees of offense

(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense (e.g. parent paying ransom to kidnappers); or (b) the offense is so defined that his conduct is inevitably incident to its commission; or
ABANDONMENT DEFENSE:

Except as otherwise expressly provided in this chapter, when, purs 20.00, two or more persons are criminally liable for an offense w into degrees, each person is guilty of such degree as is com his own culpable mental state and with his own accountabi aggravating fact or circumstance. (S can be convicted of a higher degree of the offense than P)

(c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

If different harm changes by degree this statute may not apply; c someone for a harm didnt occur

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ACCESSORIES

MPC 2.06:

LIABILITY

FOR

CONDUCT

OF

ANOTHER ; COMPLICITY .
DISTINCTIONS

NY: PARTIES

TO

OFFENSES

AND

ACCESSORIAL CONDUCT

1. No natural and probable consequences rule: liability of S does not extend beyond the purpose he shares with P 2. Rejects conspiratorial liability (Pinkerton); a person is not accountable for the conduct of another solely because he conspired with that person to commit an offense; confines liability to reasonable scope 3. Even though a P may get off for an attempt crime because didnt take a substantial step, under 5.01(3) S may not: a person who engages in conduct designed to aid in the commission of an offense that would establish complicity under 2.06 if the crime were committed by such other person, is guilty of an attemptalthough the crime is not committed or attempted by such other person 4. deliberate ambiguity re: MR and attendant circumstances Common Law: 1. doesnt recognize attempt to help (assistance must be effective) 2. doesnt recognize planning the offense (before the fact)

1. No natural and probable consequences rule: liability of S does no beyond the purpose he shares with P?

3. deliberate ambiguity re: MR and attendant circumstances? 4. No distinction for attempting to aidmust the aiding be effective

One is liable as an accomplice to the crime of another if he (a) gave assistance (in fact) or encouragement or failed to perform a legal duty to prevent it (b) with the intent thereby to promote or facilitate commission of the crime. There is a split of authority as to whether some lesser mental state will suffice for accomplice liability, such as mere knowledge that one is aiding a crime or knowledge that one is aiding reckless or negligent conduct which may produce a criminal result. (State v, Hoselton)

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