CRIMINAL LAW NADLER FALL 2005 - OUTLINE I.

I. PRINCIPLES OF PUNISHMENT Policy reasons to criminalize act Theories of Punishment Justification/Purpose for Punishment II. STATUTORY INTERPRETATION Principle of Legality o Ex ante; no arbitrariness; notice Elements of a Statute Voluntary Acts / Actus Reus o 2.01 Acts and Omissions Mens Rea o 2.02 Types of Culpability o Recklessness default o Strict Liability Mistake of Law or Fact o Does mistake of fact negate mens rea or law allows defense? 2.04 III. CRIMINAL HOMICIDE 210.1 IV. INTENTIONAL HOMICIDE Murder (Intentional) o CL: Malice aforethought o 210.2 Manslaughter (Voluntary) o CL: adequate provocation (4 step test); emotion + action; causal connection o 210.3 Reckless or reasonable EED; no provocation reqd V. UNINTENTIONAL HOMICIDE Murder (Unintentional) o CL: intentional unnecessary act + malice/wickedness/gross recklessness o 210.2 reckless + extreme indifference Felony Murder o CL: Felony/attempt + killing o 210.2 recklessness + extreme indifference + felony (specific list) Involuntary Manslaughter o 210.3 reckless manslaughter OR 210.4 Negligent Homicide

VI. INCHOATE & GROUP CRIMES Attempt o CL: dangerous proximity (objective) o 5.01 substantial step (subjective) complete or incomplete? Accomplice Liability o 2.06 purpose of crime + solicits/aids/agrees Conspiracy o 5.03 agreement + overt act by another o Merger rule o Pinkerton? VII. DEFENSES Justification o Self-Defense 3.04 immediate self-protection; 3.09 limits o Necessity 3.02 choice of evils Excuse o Duress 2.09 o Insanity 4.01 o Intoxication 2.08 (involuntary) Entrapment o 2.13 o Inducement + not predisposed (subjective) OR govt overstepping (objective) Mistake of Law or Fact? (above) Renunciation or impossibility of any inchoate crime?

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Policy Issues List Ex ante v. ex post o Hindsight bias Social Costs o Costs to society o Costs to jail huge pop o Social Priorities Justice Judge v. Jury decisions o Rational law-based v. expressive condemnation risks Theories of Punishment o Deterrence v. retributivist ; condemnation; rehab Objective v. subjective determinations Punishing for bad thoughts alone? Law should be knowable o Dont make so broad to make innocents guilty of a crime; but need to prevent Holmes Bad Man Cultural Issues

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I. PRINCIPLES OF PUNISHMENT POLICY CONSIDERATIONS A. What makes something a crime? 1. Societal Expression a) Actions which violate a contract with society to respect individual rights b) Individuals should be valued equally; crime against one person alleges their worth is less than others 2. Moral condemnation of crimes a) Message of moral condemnation is sent to offender; creates stigma 3. Concern of entire society, not just individuals 4. What is the states role? a) Which social norm violations are serious enough that we want to designate to the state to remedy? State has limited resources, which are priorities? B. Theories of Punishment Justification/Purpose for Punishment 1. Optimal (Marginal) Deterrence / Utilitarian (to prevent future harm) a) EX ANTE forward looking - preventative purpose of punishment b) General Deterrence: knowledge that punishment will follow crime deters people from committing crime c) Specific/Individual Deterrence: specific response to the individual that committed the crime, establishes consequence for specific action and prevent recidivism d) Incapacitation: physically prevent future crimes e) Bentham: forward facing: punishment should be proportionate to the crime and min. needed to deter from criminal actions; individuals will comply with law b/c of fear of consequences; some crimes not worth punishing; dont over punish b/c that defeats overall goal for society i) Critique: assumes rational/efficient actors 2. Retribution / Individual Desert a) EX POST backward looking justification found in prior wrongdoing b) Did something wrong and deserve to be punished c) Kant: look to the past what does someone deserve? reason to punish is to make someone suffer because they made someone else suffer (violated rules of society); punishment not for promoting good d) Future conduct doesnt matter to the retributivist (no parole) e) People get what they deserve; regardless of benefits to others f) All are of equal worth; crime assumes unequal worth g) Punishment in relative severity to the crime 3. Expressive Condemnation a) Expression of community condemnation of crime; shame b) Matching response that matches the crime gives comfort to victim 4. Other a) Rehabilitation i) Additional goal; not justification ii) Not very successful; resource problems; political problem b) Shaming: option for retribution; policy issues; Gementera; related to rehabilitation and retribution

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II. STATUTORY INTERPRETATION A. The Principle of Legality (general) = No Crime Without Law; No Punishment Without Law 1. No criminal liability or punishment without: a) Prior legislative enactment EX ANTE b) Fair notice (laws must be known) EX ANTE c) Expressed clearly and precisely 2. Goals a) avoid arbitrary decisions and vague language b) ex post v. ex ante rules c) By announcing the law with sufficient specificity in advance, we punish people who dont follow rule 3. Implications a) If crime not prohibited in advance, cant punish; Baker (dead mans body): b) If law not clear or notice not given, cant punish; Morales (Chicago gang loitering law) 4. Advantages of Principle of Legality a) Notice of what is prohibited in advance b) Deterrence (choice) c) Avoids Over-Deterrence (knowledge reduces over deterrence) d) Consistency (statutes more specific/predictable than common law) e) Reduces abuse of discretion 5. Disadvantage a) Inflexibility blameworthy go free if language too vague or narrow 6. Oliver Wendell Holmes - Bad Man a) write law from the perspective of the bad man, who looks at the law for loopholes...trying to figure out what he can get away with b) (as opposed to the good guy, who finds his reason for conduct in his conscience judgment of what is right and wrong. B. Elements of a Statute 1. Need two parts to impose criminal liability: a) actus reas = an act (physical component) b) mens rea = state of mind (mental component) 2. Each and every actus reus / mens rea element must be proven beyond a reasonable doubt to convict. C. Voluntary Acts / Actus Reus 1. Actus reus = physical part of the crime a) Conduct crimes i) Prohibits specific dangerous physical behavior ii) damages takes restrains; driving a car; shooting a gun; burglary b) Results Crimes i) Punishment for unwanted outcome caused by s conduct ii) (e.g. death, arson, assault) iii) causes

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c) attendant circumstances i) elements constitute part of the actus reus of an offense ii) objective fact or condition that exists when engages in conduct iii) e.g. being drunk (att. Cir.) while driving (actus reus); or entering a building that is locked or at night 2. MPC 2.01 Liability if: a) voluntary act (v. involuntary); or b) omission to act if legal duty to perform exists i) omission in absence of specified duty not enough to establish actus reas. ii) Duty imposed specifically by law, or through relationship acknowledged by law. c) Possession is an act 3. Issues a) An act may be in preparation for the larger intended act b) An omission (failure to act) may be an act in itself (depends on state statute); Cash c) Need actus reus b/c dont want to punish thoughts alone d) Problem of group indifference to distress D. Mens Rea 1. Mens rea = Mental state of actor = culpability a) Broadly: guilty mind, guilty or wrongful purpose, intent b) Narrowly (MPC elemental): mental state the must have had with regard to the social harm elements set out in the definition of the offense 2. Purpose - POLICY a) Deterrence: why punish those who didnt intend crime? b) Retributivist: individuals are autonomous, if they didnt intend then they shouldnt be punished c) Common law didnt address intent (action only) 3. MPC 2.02 Types of Culpability a) Purposely: i) Conduct or result conscious object to conduct or cause a result ii) Att. Circ. aware of circumstances or hope they exist b) Knowingly: i) Conduct or Att. Circ. aware of nature of conduct or that circumstances exist ii) Result aware it is practically certain conduct will cause such result c) Recklessly: conscious disregard of risk (substantial and unjustifiable) of result of conduct; considering nature/purpose of conduct and circumstances, disregard is gross deviation from law-abiding person in actors situation d) Negligently: should be aware of substantial and unjustifiable risk that exists or will result from conduct; failure to perceive is gross deviation from standard of reasonable person in actors situation 4. Interpretation of MPC a) 2.02(3) Default culpability min. level is Recklessness (if no culpability level specified in law) unless strict liability specified (no mens rea required). Silence of mens rea in MPC does not mean no mens rea required. i) Negligence is too easily found, involves ignorance reckless is appropriate default

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b) MPC 2.02(4) Must prove each material element of offense with that mens rea to convict (culpability for each actus reus) c) Culpability levels arranged in hierarchy; prove the highest (subordinate subsumed to be proven) 2.02(5) i) review application of each culpability level separately ii) start at top (Purposely) d) Knowledge of a fact = person is aware of high probability of its existence, unless he believes it does not exist 2.02(7) e) Willfully = acts knowingly 2.02(8) f) Jury determines the meaning of Substantial (likely result) and justifiable 5. Strict liability (e.g. traffic laws) a) No mens rea required; guilty for committing act, regardless of knowledge or intent b) Exception in criminal law b/c public welfare concerns (acts of great risk) c) Punishment not severe; avoids over punishment of morally blameless (Staples found mens rea rqmt implied b/c high penalty) d) Not Natural Law, inherent law, or moral law e) Mistake of fact or law doesnt matter f) POLICY: Society willing to be unfair (punishment of unintended) to overall deter dangerous conduct g) MPC abandons SL except for 2.05 reference E. Mistake of Law or Fact 1. Mistake of Fact a) If mistake of fact negates mens rea, then not guilty no matter if unreasonable belief, as long as proves mistake cant prove mens rea, cant prove crime b) MPC 2.04 Ignorance or Mistake of Fact or Law i) Not liable if mistake negates the mens rea required for offense ii) (or) Law may allow for mistake as defense iii) (2) But not innocent if would be guilty of another offense if situation had been as he supposed c) Morrisette: mistake of fact (of abandonment) doesnt matter b/c intended to take it d) Staples: mistake of fact for gun registration; statute silent on mens rea but severe penalty not SL, requires mens rea (mistake of fact means didnt have mens rea) e) Mistake of stolen property (receiving it) i) Some states have knowing standard hard to prove beyond reasonable doubt that someone knew it was stolen; eliminate convictions for honest mistakes, but encourages dont ask dont tell ii) Other states have negligence standard reasonably should have known; easier to convict and deter people 2. Mistake of Law a) Ignorance of law is no excuse/defense; does not negate a mens rea i) Avoid subjectivity; the law is knowable ii) Marrero: reasonable mistaken interpretation of law not an excuse; the facts remain the same b) Exceptions i) MPC 2.04(3) if statute not knowable (e.g. published) or reasonable reliance on an erroneous official statement of law

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ii) Tax Law - Cheek: mistake of law (extraordinary b/c of tax issue); genuine belief re law; questions of willingly; mens rea c) POLICY 3. Mistake Defense Questions: a) When a mistake occurs, ask yourself two questions: i) Does mistake negate required mental state of the crime (intent/mens rea)? ii) Does mistake fall under any statute that provides for a mistake of law or fact? b) If answer to these questions is No, then mistake is not a defense 4. POLICY a) Mistake of Fact i) Dont want to punish truly unknowing people ii) BUT, dont want to create loopholes for ignorant people Holmes Bad Man iii) juries must determine if should have a reasonable that their conduct was an offense no defense b) Mistake of Law i) Encourage civic awareness; discourage concealing knowledge need to make laws easily knowable III. HOMICIDE A. Homicide: = the killing of a human being by another human being B. Criminal homicide = homicide without justification or excuse 1. MPC 210.1: murder, manslaughter, or negligent homicide C. Non-Criminal Homicide = killing with justification or excuse D. Mental state separates gradations of homicide; states define differently IV. INTENTIONAL HOMICIDE A. Murder (Intentional) 1. Common Law Definitions a) Murder = killing with malice aforethought b) Malice = any 4 states of mind (different types; not all required) i) Intent to kill ii) Intent to inflict serious bodily injury iii) Depraved heart - Extreme reckless disregard for the value of human life [unintentional] iv) Intention to commit a felony (resulting in death) [unintentional] c) Aforethought is not so important anymore, since have different gradations of murder (1st, 2nd degree) i) 1st Degree Murder: Willful, deliberate and premeditated killing, OR Felony murder (sometimes) ii) 2nd Degree Murder (everything else) 2. MPC 210.2(1)(a) Murder a) Committed purposely or knowingly b) Does NOT distinguish between degrees of murder 3. States may distinguish between degrees of murder (MPC doesnt) a) Pioneered in PA b) Usually First Degree Murder = intention + premeditation

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c) Gives discretion to judge/jury; consider motivations and intent i) premeditation usually evidences stronger intent stronger punishment; premeditation is more deterrable ii) Mulatto Bob (split down anyone that was saucy); iii) Carrol (shot wife in bed with him; concern of allowing for impulsive acts; always enough time for premeditation even if seconds); iv) Perez (sufficient evidence of premeditation for killing pregnant woman in home) B. Manslaughter (Voluntary) 1. Generally a) Murder is mitigated to manslaughter because of certain extreme emotional circumstances. b) POLICY Reasons to mitigate murder to manslaughter: i) Heat of Passion: no longer have free choice over actions; lost control ii) Deterrence: provoked actor is no longer rationale; freedom of choice is constrained; murder punishment wont deter iii) Policy/Resources: How to best spend resources? iv) Inherent nature: Evil v. ordinary person v) Expressive law: want the law to reflect/express societys values; recognize circumstances of manslaughter more difficult. vi) Blame the Victim: condoning vigilante justice; victim was guilty towards 2. Common Law Manslaughter (adequate provocation) a) Manslaughter = killing without malice aforethought, heat of passion murders b) Requirements i) D in fact lost of self-control, because of ii) Provocation grave enough to provoke an ordinary person, and iii) Ordinary person might have also lost self-control, and iv) No opportunity to cool off (should be immediate) v) mere words are not adequate provocation (not legally adequate) vi) must be causal connection between the provocation, the passion, and the fatal act vii) Emotion (ordinary person would have been provoked/upset) + action (losing self control). viii) Anger, confusion, fear, jealousy all emotions considered adequate to find for manslaughter c) Per se rules for mitigating voluntary manslaughter (common law) i) use of deadly force in defending from attack (provoked); but deadly force not necessary for self protection is imperfect defense ii) Spouse in bed with another (Thornton) d) Reasonableness from s perspective has limits i) Compared to community norms (may change) ii) Gounagias (cooling time) iii) Carr (homosexuality not grave enough to provoke ordinary person) iv) Tension between allowing judge or jury to decide applicability of defense; what is adequate e) Consider each potential provocation separately and then together 3. MPC 210.3 Manslaughter (voluntary)

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a) must prove: Under influence of Extreme Emotional Disturbance (subjective) + reasonable explanation or excuse for EED ( from pt of view of s situation and circumstances, does have a reasonable explanation/excuse for EED?) i) To apply, 1) is in EED? 2) gain the perspective of the defendant and 3) determine if it was reasonable for the defendant to be in an EED (not about whether the action was reasonable once in EED) b) consider mitigating facts (manslaughter) only if find EED first i) Casassa (EED not reasonable peculiar to him no mitigation) 4. MPC v. Common Law Manslaughter a) MPC injects more subjective element; allows jury to determine reasonable from s perspective v. objective nature of common law applying provocation to reasonable person in the community (EED person is not reasonable/rational actor) variance in rulings b/n courts b) MPC no provocation requirement (arbitrary); may be more time between instigation and act (v. no cooling off period, and causal connectivity) c) MPC allows for more expert testimony to establish perspective of (instead of relying on notions of community norms) d) MPC allows more crimes to qualify for Manslaughter e) Under common law, must kill the provoker to invoke manslaughter; under MPC, doesnt matter whether the person you killed was the provoker f) MPC only question to the jury is if EED was reasonable; in Common Law, adequate provocation may be decided by judge g) MPC EED reqmt doesnt address timing/cooling off issues no immediacy requirement h) MPC no doctrine of mere words not enough must look to reasonable person V. UNINTENTIONAL HOMICIDE A. Murder (Unintentional) 1. Depraved Heart murder a) shocks the conscience; no concern for safety of others b) If no intent, depraved heart can show malice through recklessness + 2. Common Law a) Intentional unnecessary act + malice/wickedness exhibited by gross recklessness (disregard of risks) b) Motive irrelevant; can have malice without intent c) Malone (Russian Roulette) d) Recklessness required for common law is greater than MPC (gross recklessness) 3. MPC 210.2(1)(b) Murder a) Reckless + extreme indifference to human life b) Must be conscious of risks c) Extreme reckless murder is determined by jury i) Drunk driving 2.08: intoxication not an excuse; up to jury whether recklessness (manslaughter) or recklessness + (murder) (question of knowing risks if werent drunk) B. Felony Murder 10/28

1. One of traditional four types of murder 2. Common Law a) Felony (or attempted felony) + killing = Felony Murder b) Strict liability/ no separate mens rea required for the killing i) Assumes mens rea for commission of the felony carries over to commission of the homicide ii) still must find mens rea for the felony itself c) May apply to any gradation of felony (state specific some limit to dangerous felonies; Phillips {chiropractor treating cancer; grand theft; no FDM}); also FDM or SDM based on state 3. MPC 210.2(b) a) recklessness + extreme indifference + felony (specific types) = Murder b) Recklessness and extreme indifference are assumed if committed a felony dont need to prove mens rea for the homicide c) Applies to certain felonies only 4. POLICY a) Motivations/Justifications i) Deterrence Deter killing and deter felony; Assumes people are knowledgeable of the law Encourages felons to be more careful when committing the felony; persuade from violence Statistics inconclusive ii) Retribution/Individual Desert Death committed during felony is evidence that felon had evil mind, justified to holding responsible for felony and killing Or, killing involved makes the act materially different than a felony without murder iii) Expressive law justification Sending a message; reaffirming sanctity of human life. Expressing social outrage b) Against i) Permits murder liability in situations of accident ii) Underlying felony may be much less dangerous Death by car accident during police chase from robbery; or McCarty {south side teen chase} Inconsistent with gradation principles b/c lesser mens rea sufficient iii) May create inequities; punishment out of proportion to crime C. Unintentional/Involuntary Manslaughter 1. Can be reckless manslaughter (no intent) or negligent homicide. a) MPC 210.3 Manslaughter i) (1)(a) committed recklessly b) MPC 210.4 Negligent Homicide: homicide that is committed negligently 2. consciously disregards risk or should be aware of risk

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VI. INCHOATE & GROUP CRIME A. General 1. Incomplete crimes, separate from the crime that would actually be committed. a) Other crimes that may not cause harm in themselves, but indicate a potential to cause harm have elements of inchoate offenses: assault, possessing burglary tools, and drunk driving. 2. Generally punishment is less severe than for completed crime (retributivist) see 5.05(1) MPC may not distinguish 3. POLICY Reasons for Inchoate Offenses: a) We dont want to reward people for luck or incompetence when mens rea and actus reus present if they did everything but something stopped them, should be off hook b) Allows law enforcement to intervene before harm occurs; greater societal benefit; prevent future crimes through incapacitation c) Deterrence: want to be able to punish people who unsuccessfully committed a crime so that they wont do it again. d) Dont want punishment to be same as completed crime, because dont want to incentivize people to commit worse crimes if same punishment B. ATTEMPT 1. Mens Rea of Attempt a) 5.01 Person guilty if has culpability necessary to prove complete crime, and i) Complete attempt (1)(a) Conduct crime purposely conduct that would constitute crime if attendant circumstances were as believed to be (1)(b) Results crime purpose of causing or belief it will cause intentional or knowing Even a reckless results crime, need purpose or knowledge (belief) ii) Incomplete attempt (usually caught in the act) (1)(c) Takes substantial step towards commission of the crime iii) intend to make the attempt, with intent to commit the crime iv) determine: 1) purposely doing the actus reus 2) doing the actus reus w/ purpose to commit the crime b) Problems i) Hard to prove attempted reckless crimes ii) Mens rea requirement for attempt and the mens rea required for the substantive crimes (e.g. murder) are different. c) The MPC allows for attempt where there is intent and also where there is mere knowledge 2. Actus Reus of Attempt a) MPC Substantial Step Test 5.01(2) (for incomplete attempts only) i) 5.01(1)(c) If incomplete, then still liable if made substantial step ii) (2)(a) (g) list of actions sufficient to evidence substantial step if strongly corroborative of actors purpose Lying in wait; enticing victim to place of crime; unlawful entry to place of crime; possession of materials for crime, near crime; soliciting another to engage in crime iii) ask, how far away from bad thoughts did the go? iv) SUBJECTIVE TEST: what acts showed intent? 12/28

v) Cases Jackson {NYC bank robbery} (driving by bank, scoping out, tried before substantial step is guilty, but dangerous proximity might not be) Buffington {power outage thwarts shopping mall bank robbery} (bank locks doors so no entrance; ct holds mere preparation, not attempt) b) Common Law Dangerous Proximity Doctrine i) Liability depends on how close to completion the act was. The greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger the case for calling an act an attempt. The greater the dangerousness of the completed crime, the less far the attempt must come to be criminal. ii) how close do the completed act did the get? iii) OBJECTIVE TEST: how dangerous were you really? How close did you get? iv) Cases Peaslee {candle to start arson} Rizzo {cant find guy with payroll to rob} c) MPC substantial step v. Dangerous Proximity i) MPC doesnt allow people to change their minds as much as common law/Dangerous Proximity ii) Common law more discretion of the judge, given the context and intended crime iii) MPC more subjective, DP more objective 3. Renunciation affirmative defense 5.01(4) a) affirmative defense only if: i) Abandon effort or prevent commission of crime ii) Complete and voluntary renunciation b) Doesnt affect liability of other who dont renunciate c) No affirmative defense if i) Motivated by change in circumstances that make intended crime more difficult; or ii) Think you are going to get caught; or iii) If intent to commit crime is only postponed 4. Impossibility Defense a) Not a defense under MPC, common law used to acknowledge it b) Situational Impossibility i) 5.01(a) still liable if the attendant circumstances were as he believed them to be (not necessarily that they were that way) ii) Statutory rape is 16, believes girl is 15 but actually 17; internet solicitation if think its a minor but actually a sting c) Inherent Impossibility i) 5.01(b) results still liable if believe intended result will occur without further action ii) Voodoo killings; shoot someone who is already dead; shooting into empty bed where someone is usually sleeping d) Mitigation i) 5.05(2) Court has discretion to lower sentence if attempt so inherently unlikely to result in commission of crime

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5. Analyzing Attempt: [see flow chart below]

Is the attempt complete?

YES

NO

Does the actus reus involve conduct or results?

Go to 1(c) and then 2

CONDUCT

RESULTS

Go to 1(a) (e.g., pick an empty pocket)

Go to 1(b) (e.g., shoot and miss)

a) When analyzing attempt, start with the substantive crime itself b) Incomplete Attempt? Caught in the act? (1)(c) then (2) c) Complete Attempt? i) Conduct crime w/ attendant circumstances? (elements that must exist to prove all parts of a case e.g. Burglary: Dwelling and at night are attendant circumstances; manslaughter does not have Att. Cir.) 1(a) ii) Results crime? Youve done everything you think you need to do to commit crime. Must consider purpose and intent 1(b) 6. Remember must have a specific crime they are attempting (Phillips) 7. No attempted assault b/c attempt part of the statute already 8. Theories/POLICY Issues:

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a) Attempt has problems with boundaries: If you arent careful, we can catch and punish innocent people, or people who didnt do enough that we would consider it culpable conduct. b) Amount of Punishment: i) Should an attempt be treated as a less serious offence than the target crime or as one of equal seriousness? What is a lesser punishment for attempt accomplishing? There is less social harm if the target person wasnt hurt by the act. If youre trying to deter, then you should give the same punishment for attempt as commission. If someone who is going to commit a crime and decides they want to stop, dont we want to encourage them to stop? If they are going to get the same punishment for stopping as for committing the crime, then what would make them stop? Most jurisdictions dont recognize abandonment when considering punishment. c) Views on Punishment for Attempt i) Retributivist View-Point: IT CAN GO EITHER WAY: Harm Retributivist: If the person didnt do the same amount of damage, then they shouldnt be punished as much Intent Retributivist: They had the same mens rea and intention, so they should be punished the same degree. ii) Different jurisdictions do different things. Some punish attempt the same as the target crime and some punish less (CA punishes at of completed crime)

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C. ACCOMPLICE LIABILITY 1. Generally a) Dont have to prove committed actus reus of the crime to prove the crime. Impute the actus reus of another to ; someone must have done some crime complete or inchoate. hold liable as if did the act. When you intentionally help someone commit a crime, then you are guilty of the crime because that persons acts are imputed to you. i) liability for the underlying offense to members of the group when one or more of them commits that underlying crime. b) Accomplice is guilty of what the principle is guilty of if you have same intent. i) Knowledge of crime is not equal to purpose/intent of committing crime c) Cases i) Wilson {DAs son; stolen watch} (must have intent that crime be committed; otherwise undercover cops would be guilty) ii) Gladstone {Univ. Puget Sound drug dealers} (talking about likelihood of crime isnt intent) iii) Clarkson {military rape} (presence alone not sufficient; must willfully intend) d) Mens Rea and Actus Reus Required for Accomplice Liability: i) 1) purposely engaged in the act of assistance (actus reus) ii) 2) with purpose of promoting specific criminal conduct of the principal (mens rea) AND if results crime then need mens rea for resulting crime iii) 3) principal shown to have committed crime in question Mens Rea: wishes to bring about the crime with mental culpability required of crime iv) usually purpose of promoting commission of crime is same as purpose that crime be committed. BUT if you have knowledge of the crime, but not purpose, then not sufficient for complicity. 2. MPC 2.06 a) Conduct Crimes (1) (3) i) Liable for conduct of another if you are legally accountable for the other With culpability of offense, causes an innocent/irresponsible to do crime; or By law; or Accomplice Accomplice if: Mens rea: purpose of promoting or facilitating the [the conduct constituting the] offense Must be conscious object (being a member of conspiracy may be evidence of purpose of others actions) Actus reus Aids or agrees or attempts to aid in planning or committing Has a legal duty to prevent commission and fails to do so b) Unintended Results Crimes (4) i) Look to section (4) after (3) if a result crime; mens rea is for the result only ii) allows for mens rea less than purpose for results crimes

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iii) Accomplice in the conduct causing such result E.g. conduct is the speeding. iv) If he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense Result in example above is negligent homicide. is guilty (solicited conduct with purpose of promoting conduct speeding) 3. Approach to analyzing accomplice liability: a) First, pick a crime and analyze whether principal can be proven guilty (doesnt matter if principal actually convicted 2.06(7)) PICK ONE CRIME AT A TIME i) If Principle has a Justification defense then accomplice is not guilty ( and accomplice did the right thing) ii) If principal has an Excuse defense, then accomplice can still be liable (think about duress) iii) Defense can argue that principal not liable. b) Then analyze if accomplice meets level of mens rea for crime i) Have two separate burdens for accomplice trial prove that principal is guilty and then also that accomplice is guilty ii) Two mens reas for unintended result crimes: Mens rea involved in giving the aid (conduct) (3)(a) Then, mens rea required with respect to the crime (result) (4) c) If accomplice doesnt have mens rea for principals crime, then analyze whether principles crime encompasses lower levels of culpability which the accomplice could be found guilty of (Purposeful murder is also knowing, reckless, and negligent) i) principal and accomplice dont have to have same mens rea. The accomplice could have mens rea sufficient for a lesser crime than principal. d) Note that the Principal could actually be convicted of a lesser crime in some situations, which would lead to accomplice being convicted of a more serious crime than Principle i) Focus specifically on what the prosecutor can prove the Principle did ii) Possibility does exist, however, that Principle gets off and accomplice doesnt e) Defining Principals crime broadly or more narrowly will allow for more accomplice liability (Mondello crime is murder (accomplice no) v. crime is causing riot or intimidation) f) How little do you have to do for actus reus? i) Wilcox v. Jeffrey {jazz musicians in England; guilty by encouragement} 4. Conspiracy v. Accomplice Liability a) You do not automatically have conspiracy when you have accomplice liability. i) If you are helping someone commit a crime without a prior agreement, you are not guilty of conspiracy, but are subject to accomplice liability. b) But if you have purpose that offense be committed, and you agree to aid its commission, you are guilty as accomplice (if crime is committed) and of conspiracy (whether or not crime actually committed). Conspiracy would merge into the substantive offense if the scope is exactly the same. 5.05 c) there is duplication between conspiracy and accomplice liability, and some argue only need attempt and accomplice liability 5. Mondello analysis

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a) Argue that Famas intentional killing is also a reckless killing. We can likely prove that Mondello was reckless in his mental state. i) Now focus on subsection 4 of MPC 2.06. Can we prove that Mondellos conduct causing result (death) is enough to get to liability under accomplice. b) Actus Reus i) Conduct (attack) ii) Result (death) c) Mens Rea (accomplice) i) Intent must be proved with regard to CONDUCT ii) Recklessness must be proved with regard to RESULT (death) 6. POLICY a) Is it fair to punish an accomplice the same ways as the one who committed the crime? Other legal systems have relative gradations.

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D. CONSPIRACY 1. General: a) Conspiracy is a separate offense from the underlying crime the group wishes to commit b) With conspiracy, the conversation in and of itself produces social harm. c) It is dangerous enough that we should punish it. d) No physical harm needs to be done e) Cant have conspiracy for attempt crimes f) Cant have conspiracy for knowing crimes; need purpose to commit the crime 2. Actus Reus = Agreement a) can be express or implied or inferred i) infer from similar actions at same time (Mossaoui, Interstate) ii) need not be formal or written just conscious understanding and deliberate agreement (see OMalley KKM p. 650) b) whatever you agree to do is the offense/crime i) if crime is different than agreed, then not guilty of conspiracy (e.g. agree to provide guns for hunting, then guns used for robbery, not guilty of conspiracy for robbery) ii) The broader the subject of agreement, the more liable for conspiracy (e.g. rob banks or rob specific bank) c) Essence of conspiracy if you dont have agreement you dont have conspiracy d) Overt Act i) One member of the group must do an overt act ii) Extra proof that there is a serious agreement, objective evidence of intent iii) Proof standard low not the same as proof of actus reus of attempt; may be mere preparation iv) But end crime does not need to result 3. Common Law a) General i) No requirement for overt act conspiracy = agmt only; some states have changed this and require over act ii) Can convict of conspiracy and the target offense separately/cumulative others merger rule applies (MPC merger rule applies) b) Pinkerton Rule: i) If you are guilty of conspiracy, you are also guilty of any reasonably foreseeable substantive offense committed by another conspirator in furtherance of the initial conspiracy Foreseeable even if didnt expect it Guilt for offense depends on scope of conspiracy the broader the conspiracy, the more chance guilty of addl offenses. Doesnt apply to inchoate offenses Guilty for all offenses, even felony murder ii) Goal forces conspirators to monitor each other iii) Limitations: No liability for substantive offense committed by another if: Not done in furtherance Not within the scope 19/28

 Not reasonably foreseen It was committed by another before you joined the conspiracy Renounce - If you renounce the substantive crime prior to its completion, you can get off iv) POLICY ISSUES Leaves little fish in conspiracy guilty of large offenses Not a lot of limits in place to develop boundaries to the rule You can be NG of attempt and NG of being an accessory and be guilty of conspiracy. Under Pinkerton, you would be found guilty of the underlying crime if youre guilty of conspiracy. 4. MPC 5.03 Criminal Conspiracy a) 5.03 i) (1) Person guilty of conspiracy to commit a crime if with purpose of promoting or facilitating the commission of the crime he ( conscious object to promote) (a) Agrees with other(s) that one or more will engage in conduct of crime or an attempt or solicitation to commit such crime; OR (b) Agrees to aid other(s) in planning or commission of crime, attempt or solicitation of crime ii) (2) Guilty of conspiracy with all involved, even if through one organizer and others dont know each others identities iii) (3) one agreement for multiple crimes is one charge of conspiracy iv) (5) Guilty only if Overt Act in pursuance of crime is proved to be committed by or another conspirator Except no overt act required for felony of first or second degree (too dangerous to wait for overt act) v) (6) Renunciation affirmative defense if thwarted the success of the crime, must be complete and voluntary renunciation b) MPC does not adopt Pinkerton; but may still be guilty for Accomplice too 2.06 (must check if scope same or different see merger rule) c) Merger Rule i) If crime actually completed, the conspiracy count merges into completed crime, if the scope of the conspiracy and crime are the same. 1.07(1)(b) ii) But if scope different (conspiracy scope larger than crime) then separate convictions allowable iii) Common law in some states only iv) if scope of intent of crime is the same for conspiracy and attempt, and crime committed, then conspiracy merges into attempt; if scope is different, then can be convicted of both. d) Multiple Convictions i) 5.05(3) can not be convicted of more than one offense of ATTEMPT, SOLICITATION, or CONSPIRACY for conduct designed to commit or culminate in commission of the same crime only 1 count of conspiracy for each type of crime committed. e) If the Prosecution frames the purpose broadly enough, then the D doesnt have to know the specifics of the activities.

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5.

6.

7. 8.

f) Agreement must occur before the crime commences. Cases: a) Stavroulakis {undercover Greek money laundering} (both s guilty of conspiracy even though thought source of funds was different; there was agreement to reach a specific illegal end) b) Interstate Circuit {movie theaters} (how to prove agreement? Theaters changed prices all at once infer agreement; courts found that not objecting was agreement (agreement by inaction/silence?)) c) Moussaoui {9/11 potential hijacker}(Al-Q affiliation shows purpose; separate actions/activities at same time as other hijackers flight training, gym, wire transfers, materials infer agreement; doesnt matter if goal was 9/11 or another event, same purpose) Conspiracy v. Attempt a) Conspiracy is easier to prove than attempt; requirements not as stringent b) Dont need to have specific victim picked out, just agreement about a type of crime c) Attempt must have culpability required for the crime, then purposely engage in the conduct to constitute crime; for Conspiracy, requires only purpose that crime be committed d) Overt act doesnt have to meet as high actus reus requirement as attempt e) holds from moment you agree helps w/ lack of proof for attempt Conspiracy v. Accomplice Liability a) Accomplice liability requires the to do an act to further the offense; conspiracy another could do the act Defenses a) Mistake of fact or law that would defeat liability for target offense would also defeat liability for conspiracy b) Impossibility not a defense c) Renunciation 5.03(6) (above)

9. POLICY - CONSPIRACY a) Justification i) Crimes committed by groups are potentially more dangerous, less likely to be abandoned. The whole is greater than sum of the parts. Deterrence: Conspiracy liability gives incentive to defect from group early ii) Helps in cases with lack of proof for attempt iii) Hammer to make people flip b) Critique i) The small guys get charged with conspiracy for big offenses (drug runners) ii) Collectivized proof risk of reducing standard of proof; jury transfers guilt of one associate to all iii) Vagueness of conspiracy doctrine gives prosecutors broad power that may be abused

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VII. DEFENSES (affirmative Defenses; Burden on ) A. Generally 1. Prosecution has met the burden of proof (preponderance of the evidence), but there is a defense which negates liability (affirmative defense) NOT GUILTY, vindicated 2. Two main categories: a) Justification: did the right thing under the circumstances b) Excuses: the act was wrong; but excuse the actor because of characteristics of the actor 3. POLICY: Law differentiates between justifications and excuse to send message; affects accomplice acts B. Justification 1. Generally a) did right thing under the circumstances law does not condemn act b) harm is vindicated 2. Self-Defense a) Self-Defense may be deadly or non-deadly force; but threat must be more than just injury and response must be necessary b) Common Law Self Defense i) There must be a threat of deadly force/sbi (actual or apparent) ii) The threat must be unlawful and immediate iii) The defender must believe he is in imminent peril of death or sbi (subjective) iv) The defender must believe that his response is necessary to save himself v) These beliefs must be both honest and reasonable c) MPC i) 3.04 Use of Force in Self-Protection (1) Use of force justifiable when actor believes force is immediately necessary, for purpose of protecting himself against use of unlawful force by the other on the present occasion (2)(b), (c) Deadly force justifiable only if believes necessary in response to threat of death, sbi, kidnapping, rape (not robbery); otherwise only non-deadly force is justifiable (b) Deadly force NOT justifiable when actor Provoked use of force against him, with purpose to cause death/sbi (aggressor limitation) could avoid by retreat or surrendering possession Except dont need to retreat if in your own home, unless you were initial aggressor (castle doctrine; varies by state) ii) Limits: 3.09 Self-Defense unlawful when: (1)(a) belief in unlawfulness of the oncoming force is erroneous; or (1)(b) error in belief of unlawfulness is due to ignorance or mistake of the law (2) person is reckless or negligent in acquiring belief of need to use force and crime requires reckless or negligence culp. can still charge for crimes requiring reckless or negligent mens rea; but excused for higher crimes

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3. a) b)

c)

d) e)

consider the mental state for the belief, and the mental state for the act (3) recklessly or negligently injures/creates a risk of injury to innocent persons, defense not available for reckless/negligent acts against those innocents (but does have defense for crimes requiring higher mens rea against them) d) MPC v. Common Law i) Common Law depends on reasonable person standard; MPC doesnt require reasonable belief, belief only e) Cases i) Leidholm {history of extreme spousal abuse} ii) Goetz {subway shootings} (reasonable beliefs/subjective from s view acquitted) Necessity Justification: the lesser of two evils. MPC 3.02 Choice of Evils i) (1) Conduct actor believes necessary to avoid harm or evil to himself or others is justifiable if (a) Harm/evil to be avoided is greater than that of conduct of offense (gravity of the harms comparison) (b) no statutory provision for an exception or defense for the situation (specifically) (c) No statutory exclusion of justification ii) (2) Not justified if Actor was reckless or negligent in bringing about situation requiring choice of evils OR in determining necessity of conduct AND The offense charged requires recklessness or negligence Common law i) necessity defenses usually require emergency context or imminency; MPC no immediacy/imminency requirement ii) If you brought on action yourself, necessity not available (drug user wants heroin) Jury determines lesser evil; and must believe he chose lesser evil Oakland Cannabis Buyers Cooperative (necessity defense not included in drug distribution statutes N/A; concurrence argues apply common law silence doesnt preclude)

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C.

Excuse (burden on ) 1. Generally a) Did the wrong thing but not in the position to exercise free will so not blameworthy 2. Duress a) Generally i) Person acting under a threat, coercion; free will overcome ii) Not the same as necessity iii) Doesnt apply as justification for any homicide assume reasonable firmness person would resist b) MPC 2.09 Duress i) (1) Affirmative defense if Coerced by use or threat of unlawful force against or another person, which person of reasonable firmness would be unable to resist ii) Not a defense if (2) recklessly placed himself in situation [for any criminal charge]; or (2) negligently placed himself in situation, if negligence is culp. for offense charged (3) wife acting under husbands orders not an excuse c) Common Law i) an immediate threat of death or serious bodily injury; ii) a well-grounded fear that the threat will be carried out, and iii) no reasonable opportunity to escape the threatened harm iv) (sometimes, usually in prison breaks) must submit to authorities after in safety v) Duress negates mens rea, should go to jury d) MPC v. Common Law i) MPC has a lower standard any unlawful force can be used to constitute a duress defense, but limited by reasonable person standard ii) MPC doesnt require immediacy. The reasonable firmness requirement makes up for the lack of an immediacy requirement e) Cases i) US v. Contento-Pachon (coerced drug smuggling; threatened family) ii) Green (escape from prison; no defense because threat not imminent)

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3. a) b) c) d)

Insanity Low occurrence of this defense has mental disease which makes it impossible to freely choose. No single test for insanity; varies between states Common Law i) MNaghten Test: MOST POPULAR (Right-Wrong Test): was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong doesnt know difference between right and wrong 2 Questions: Did know what he was doing when he committed the crime? Did know that his actions were wrong? no rationality of individual no deterrence Focus on cognitive capabilities aspect, not control over behavior ii) Irresistible Impulse Test: either didnt know the act was wrong, or was unable to prevent himself from committing the act despite knowledge of its wrongfulness requires complete impairment; no voluntary control applied usually in immediate, reactive situations; excludes brooding crimes iii) Durham Test: (1954) (Product Test): s unlawful act was the product of a mental disease or defect. 2 Questions: Did have a mental disease or defect? Was the disease the reason for the act? (This was a very easy test and rarely used) Eliminates cognitive right/wrong test No standard for competency too inclusive e) MPC 4.01 i) Mental disease or defect [exists] causes to lack substantial capacity either to appreciate the criminality [wrongfulness moral or legally?] of his conduct [like MNaghten]; or conform his conduct to the requirements of the law. [like Irresistible Impulse] ii) The MPC test gives two outs. Could appreciate the wrongfulness and could he stop himself? iii) Doesnt require complete impairment, just substantial iv) Hinckley (attempted assassination of Ronald Reagan to impress Jodie Foster. Not guilty by reason of insanity; caused states to change back to MNaghten test b/c MPC too lenient) f) POLICY i) None of the rationales for punishment are satisfied when you punish the insane

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4. Intoxication (alcohol and other substances) a) MPC 2.08 i) Voluntary intoxication does not provide an Excuse ii) But voluntary intoxication might negate mens rea of an offense May not be able to proof culpability level required failure of proof, not Excuse Weaver iii) If reckless offense, being unaware of risk b/c intoxicated is immaterial if the actor were sober, he would have been conscious impute recklessness b) Dont want people to be able to create defense by getting intoxicated first (drunk drivers) c) Only a defense if not voluntary 2.09(4) (coerced, pathological {unpredictably unreasonably susceptible body}, mistake; unintended from prescription drugs) D. Entrapment 1. General a) Defense; acquitted (no liability) if found - not mitigation b) Misc. category, not part of Justification or Excuse c) Non-exculpatory, doesnt address blameworthiness (like SOL) d) Two formulations: objective and subjective e) Not codified common law mostly; no federal statute i) Federal common law is subjective test Sorreles Objective test part of dissents f) Burden on government to show not entrapped 2. Common Law a) Subjective Test i) Entrapment = inducement by police + not predisposed ii) Inducement Was there governmental instigation? Government cant originate a criminal design, implant in an innocent persons mind the disposition to commit a criminal act, and then induce commission of the crime Jacobsen KKM p. 919 Need opportunity + ________ Persuasion, misrepresentation, threats, coercive tactics, harassment, promises of reward; pleas of sympathy, need or friendship (Poehlman quote p. 920) Not inducement if just present the opportunity alone iii) Predisposition Was willing to commit the offense prior to government contact? All s predisposed by time of the act What proof is there of predisposition or not? Prosecutors allowed to show previous criminal record (exception) If is predisposed, then not an issue whether there was inducement 5 part test in Poehlman dissent (1) s character/reputation; (2) if govt first suggested criminal activity; (3)whether profited from activity; (4)whether demonstrated reluctance; (5) nature of govt inducement. Reluctance most important.

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3.

4.

5.

6.

b) Objective Test i) Focus on government actions; not predisposition ii) More policy oriented has government crossed the line? MPC 2.13 a) more like objective test b) for public officials or those acting in cooperation with them c) (1)(b) persuasion or inducement which create substantial risk offense will be committed by persons other than those who are ready to commit it i) [Not the same as predisposition; its whether anyone would commit it; s predisposition not at issue] d) (2) acquitted if entrapment is proven e) (3) not applicable if crime is causing or threatening bodily harm to someone other than the person perpetrating the entrapment Subjective v. Objective Tests a) Are we looking at s predisposition (subjective) or government actions and affect on anyone (objective)? b) Inducement alone is not the same as the Objective test. Difference is whether consider if was predisposed. Cases a) Hawkins {petty theft sting op Reno} (issues of screening for s with criminal record; ensuring charge of grand larceny) b) Poehlman {internet chat child sex} ( c) Jacobsen [cite in Poehlman p. 919] ( Policy Issues a) Sting operations problematic / cant cross line to induce someone not predisposed i) Allow to bring in previous criminal record sting ops will screen for previous criminals because more likely to be able to defend against entrapment targeting? b) Are we punishing for bad thoughts? c) Difficult to determine predisposed i) Lots of people can be manipulated d) Resources why spend govt resources to force someone into crime if not predisposed?

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OTHER CRIMES Robbery 222.1 Burglary 221.1 Solicitation 5.02 Assault 211.1 Miscellaneous Unlawful Force 3.11(1) Deadly Force 3.11(2) Bodily Injury 210.0(2) Serious Bodily Injury 210.0(3) Deadly Weapon 210.0(4) General Defs 1.13

BE THOROUGH, GO DEEP The prosecution must prove every element of the crime o Prove Actus Reus and Mens Rea for each crime o State clearly actus reus and mens rea Consider all crimes plausible for each person Argue and counterargue

Steps to work through a case/fact pattern: 1. For each person a. All Potential Plausible Crimes b. All Potential Defenses 2. For each potential crime a. Start with breaking down requirements for actus reas, then mens rea i. Determine if actus reas is met 1. prove every element ii. Then mens rea is met consider culpability requirements 1. review application of each culpability level separately 2. start at top (Purposely) 3. top down inclusive 4. must prove every element b. Consider policy issues for each crime c. Are there cases that support the argument? d. Make counterarguments e. Remember prove Organize by Person Person 1 Crime 1 (start with biggest crime) o Elements o Attempt o Conspiracy o Accomplice o Defenses/Affirmative Defenses Crime 2 Other crimes if had additional info

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